Tuesday, September 5, 2017
Last week, in Henry v. S.G., the Supreme Court of Georgia placed a significant dent in the logic of zero tolerance discipline. The case involved a fight between two high school students. In typical fashion, Locust Grove High School automatically suspended both students. After all, there was a video of the fight and both students were involved. "The [school] hearing officer found S.G. guilty of violating the rules with which she was charged 'for being involved in a fight on the school grounds.'”
The problem is that the video strongly indicates that one of the students was the victim. S.G. was chased down by another student and then tried to avoid the fight, going so far as to hold her hands up and walk away. But after she walked away, the other student lunged at her and the fight ensued.
The Georgia Supreme Court found that being a participant to a fight is not enough alone to justify an expulsion. The Court hung its analysis on the fact that a Georgia statute grants individuals the right to use self-defense and that the state board of education has also previously recognized self-defense as an affirmative defense in discipline proceedings. Readers might recall a similar case in Florida involving a student who "stood her ground" after exiting the school bus.
The troubling part of these cases is how heavily they rest on these statutory rights of self defense. In the absence of these statutes, a school might theoretically determine that self-defense is not tolerated. Significant precedent regarding school's discretion would support the schools.
As I argue in Ending Zero Tolerance, some zero tolerance policies are constitutionally irrational and should be struck down on that basis. Of course, when a statutory rationale exists, avoiding constitutional questions is appropriate. One might, however, read these statutory cases as implicitly bolstering the irrationality of zero tolerance. These state legislatures have recognized the impropriety of punishing those who may very well be victims. It is not that the state wants people to fight back, but that punishing them under these circumstances defies logic. The aggressor and the defender are simply not comparable in terms of culpability (assuming the defender does not use the occasion to overreact).
The Minnesota Supreme Court took a step toward this approach last year when it held that a student's intent in a weapons case matters. The student had accidentally left a knife in his backpack that he used for cutting twine on the farm over the weekend. The Court held that this accidental possession of a weapon did not amount to a "willful violation" of school rules.
Together, these cases confirm two points emphasized in my book. First, students seeking to challenge expulsions and suspension generally stand a better chance in state courts than federal courts. Unlike federal courts, these state cases involve courts taking the issues very seriously and trying to reach a decision that respects student rights. Second, courts can and must play a role in student discipline cases. They are the last line of defense for students. Many schools are still willing to hand out what the most extreme forms of punishment that, without courts, will go unchecked.