One Strike and You're Out? Constitutional Constraints on Zero Tolerance in Public Education

Abstract

Notwithstanding the popularity of zero tolerance policies, the resulting denial of public education to massive numbers of children threatens irreparable damage, not only to these individuals but to all of us. This Article assesses the intended and unintended consequences of public school zero tolerance policies and details a number of constitutional infirmities of such policies that could provide an avenue for reform. We begin in Part I with a description of the multifaceted role that zero tolerance has come to play in public schools. Part II examines the rationale and actual impact of zero tolerance as school policy, and Part III explores what we argue are significant constitutional constraints on use of this policy to deny schoolchildren a public education. After assessing the as-yet-unresolved status of educational rights in the federal Constitution, we delineate a number of reasons why expulsions from the public school system may be constitutionally impermissible under both state education provisions and federal and state equal protection clauses.

Keywords

School violence, School discipline, Right to education, Disadvantaged children, Student expulsion

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Authors

Eric Blumenson (Suffolk University Law School)
Eva S. Nilsen (Boston University School of Law)

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