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When a Lemon Drop Equals a Kilo of Cocaine

Schools: Stripping educators of disciplinary discretion leads to ridiculous and unfair punishments.

June 01, 1998|PAUL CAMPOS | Paul Campos is a professor of law at the University of Colorado, director of the Byron R. White Center for American Constitutional Study and author of "Jurismania: The Madness of American Law," published in April by Oxford University Press

The lawyer for the American Civil Liberties Union fairly glowed with pride as she spoke to a group of education lawyers: "Things aren't the way they were when we were in high school. Back then, you could get suspended for any reason or no reason at all. Now we've made sure that everyone understands the rights of children don't end at the schoolhouse door."

Indeed, it's been a busy season for the dispensers of juvenile justice. In the past few weeks alone, Colorado schools have:

* Suspended a girl who turned in a paring knife to her principal after she discovered her mother had left the utensil inside her lunch box.

* Fired a popular principal who allowed his students to have what one parent described as "a thimbleful" of wine with a meal during a spring break trip to Paris. (The students' parents had signed forms consenting to this outbreak of substance abuse.)

* Suspended a 10-year-old in Colorado Springs for offering a lemon drop to a friend.

All these actions are the result of so-called zero tolerance policies, which require suspension or expulsion of students who bring any kind of "weapon" or "controlled substance" to school.

I have no desire to defend these decisions. But before we rush to judgment regarding just who is to blame for such regulatory excesses, we might want to ask what happened to all those "rights" the ACLU lawyer assured us had been granted to schoolchildren since the bad old days of her audience's baby boomer youth. If students today have so many rights, then why are so many of them being suspended and expelled for such absurdly technical violations?

The answer, it turns out, is that they are being summarily tossed out of school precisely because of all the procedural rights that have been won for them by the legal crusaders of their parents' generation.

In the bad old days, you see, a student could be disciplined without the school being forced to either hold a formal hearing or risk a federal lawsuit. Most Americans over 35 can remember a trip or two to the principal's office, where rough justice was meted out with little or no regard for the niceties of procedural due process and the equal protection of the laws. Still, in such a setting students could always hope that flexible rules and administrative discretion would work in their favor.

Today this informal approach to rule enforcement has given way to quasi-judicial proceedings. Primarily because of the legalistic obsessions of our ACLU lawyer and her friends, every student is now entitled to a formal hearing (the result of which can be appealed) whenever he or she is subjected to any real disciplinary action.

The irony is that schools have reacted to this explosion of procedural rights by enacting substantive rules that have all the subtlety of a firing squad. Hence one lemon drop might as well be a kilo of cocaine, and a dull paring knife that couldn't slice an apple is treated in exactly the same manner as an AK-47. After all, if the rules leave no room for administrative discretion, no lawyer can subsequently accuse administrators of applying them in an "arbitrary and capricious" manner.

In other words, because Americans are so afraid their children might be punished arbitrarily, they have created a system that punishes them automatically, without regard to whether their children deserve to be punished at all.

Of course nobody foresaw that things would work out in quite this manner. In America we have difficulty even imagining that handing out more rights could be a bad thing. And indeed, in the child-like world of the ACLU lawyer, the answer to every social problem is always disarmingly simple: Create more rights, more procedures, more laws. Such people never take into account that complex social systems don't just stand there when you attempt to reform them. Rather, they often react in unpredictable and perverse ways that can actually leave the intended beneficiaries of the reforms worse off than they were before.

Today's schoolchildren might well look back with envy to the schools their parents attended--schools in which students were occasionally subjected to unfair treatment, but in which draconian rules didn't automatically commit the innocent and the guilty to the same fate. With rights like these, who needs oppression?

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