It's easy to hear something like "ACLU questions zero tolerance" and come away thinking they were arguing for something other than what the report actually said, especially in light of recent conversations, spurred by the Obama administration, regarding racially disparate impact in school punishments (and the ACLU's position thereon), which have sometimes unfairly caricatured the administration's position as one of knee-jerk opposition to anything with a disparate racial impact no matter how unrelated to actual discrimination it may be. That's not to say that there aren't undercurrents of that sort of attitude in the conversation and even in the ACLU Pennsylvania's report; but it is to say that what is at issue is a more nuanced set of policies than just "you have to suspend whites and blacks equally", and the motivations for it are complex and well-intentioned. What's at stake is a larger question of the relationship between our schools, our students, and the community at large.
Many people are likely to object to the recommendations in this report. I think it's important to understand what's really being objected to before commenting on it, so bear with me. The report starts by pointing out what "Zero Tolerance", for purposes of the discussion, really is. By doing great violence to their work, I sum up as follows:
* Zero Tolerance started with discrete scope: zero tolerance for weapons, or drugs, say.So that's the "Zero Tolerance" that the ACLU is arguing against. As to why they think Zero Tolerance is a bad idea, well, the primary argument -- by which I mean the one that is voiced most consistently -- is one that is seemingly open to the charge of vacuity. It really is, more or less, the "disparate impact" argument that many conservatives have criticized the DoJ and DoE for advancing. Consider the following quote from the report (p.19):
* Zero Tolerance expanded to include all sorts of stuff like uniform policies and "defiance".
* Zero Tolerance uses suspension and expulsion to punish these infractions, without discretion.
In other to better understand the likelihood that a Black student, a Latino student, or a student with a disability faces of being suspended out of school, we looked at the number of such students who were suspended compared to that group's representation in the school population.The ACLU report is obviously presenting the differences in suspension rates as an argument against the policies underlying those suspensions. Now, the first thing that should occur to any reasonable person upon hearing this is, "Well, maybe the groups don't engage in misbehavior in uniform ways." One obvious move from there is to accuse the ACLU of sophistry and to dismiss their report on the grounds that they're seeing racism where racism perhaps doesn't exist. As one of the commenters on Joanne's site pointed out, Zero Tolerance policies have often been seen as a way for administrators to shield themselves from charges of racism. It's ironic that those same policies would now come under fire for being tools of discrimination.
But there's more to the ACLU's argument than this, and the argument -- I think -- works even if you acknowledge the possibility that, for whatever reason, certain ethnic groups might engage in a disproportionate amount of misbehavior. With a little fiddling around, I can make that argument go something like this:
* Zero Tolerance policies bring down the hammer for trivia like defiance and uniform infractions.
* Zero Tolerance is itself exercised with a tremendous amount of discretion, with school districts employing it in vastly different ways.
* The punishments themselves are overly harsh, and whatever their other merits, result in students being removed from the school community.
* Therefore, even if the punishments handed out by zero tolerance policies are otherwise distributed in a non-racist way, the punishments are not just. And that means that because of the zero tolerance policy, actual injustice (overly harsh punishments) is falling on discrete and insular minorities (blacks, latinos, students with disabilities) in a way that it's not falling on white students.
* And what's more, this is happening more in some districts than others, maybe suggesting the possibility of direct racial animus on the part of administrators.
Really, the argument is something along the lines of arguments against debtor's prison. It's not that the debtor hasn't done something wrong by failing to observe his or her obligations -- surely it's wrong to fail to pay one's debts. Pacta sunt servanda. The problem is that the debtor shouldn't be completely crippled as a result of that misbehavior.
Or maybe it's like the way that, at least anecdotally, punishment and enforcement for crack cocaine is more rigorous than that for the powdered variety. It's not that crack addicts aren't breaking the law -- but they don't seem to be doing it in a way that's significantly worse than those sniffing their drugs. And one can be forgiven for wondering if perhaps the demographics of the various addict populations has something to do with the legal distinctions, or the way that policies are enforced.
Viewed from that perspective, I am in complete agreement with the ACLU on their recommendations. Suspensions and Expulsions are exclusions. And exclusion is a potent, dangerous tool.
Some of the work I've done as an attorney-philosopher has been on the nature of punishment. And one of the distinctions that I think needs to be made when talking about punishment is the distinction between punishments that recognize the offender's standing in the community and seek to capitalize on it, and punishments that revoke it. Much of what's wrong with the American penal system, I think, is that it cuts offenders off from society for very, very long stretches of time. Our society is also structured in such a way that re-integration is extremely difficult, even for those who commit things like minor drug offenses. In many cases, "felons" lose their right to vote, their right to bear arms, and find it exceedingly difficult to find employment. Certain professions are barred to them entirely.
I'm not saying we should allow drug lords to become police officers. But it might not be crazy to think that someone who commits a robbery at age twenty might not make a good attorney a decade later. And maybe if prison were harsher, we could have shorter sentences that did not necessarily result in a thriving and totally distinct prison culture to which inmates assimilate.
Anyway, this is all by way of saying that with something like say, a flogging, the punishment is harsh and discrete, but the offender can still be accepted back into the community with a minimum of fuss. Without taking sides on the propriety of corporal punishment here, it's like spanking a child -- it doesn't mean you don't love them. In fact, it can often mean the opposite. Why would you bother, otherwise? But dropping your kid into the cellar to rot because he or she didn't eat his or her vegetables would be something else entirely.
So I think that the ACLU has a point when they point to out of school suspension and expulsion as punishments that, first and foremost, remove the student from the school. That's appropriate when it's a question of safety or danger. But unless that's the issue, what's really going on is exile. It's a demonstration not that the student is misbehaving and will be punished by the community, but rather that the student isn't really part of the community. And to make matters worse, not being in school actually makes it more difficult to become part of the community. The student misses out on the day to day rhythms, misses out on the flow of classroom conversation, and can come back to school feeling disjointed and apart. After all, they didn't see yesterday's assembly -- the one that everyone is talking about.
I also think that the ACLU makes excellent points about law enforcement and arrests. This is school. Every fight on the playground does not need to involve handcuffs and flashing lights, and if the data the ACLU cites is to be believed, most of the police activity in Pennsylvania in schools is aimed at fighting and threats to fight that do not involve weapons. (p.29) That is the sort of behavior that needs to be curbed, but I wholeheartedly agree that it does not need to result in students being swept into the criminal justice system.
(I also happen to think that zero tolerance policies do a poor job of distinguishing between the aggressor and the defender in a schoolyard fight. This is an issue that provides schools with a magnificent opportunity for moral education. True, sometimes it is difficult to know who the aggressor is. But sometimes it's not.)
This is just a blog post, not an article, so I'm going to wrap this up now. My point in this post has really just been to try to demonstrate that even if you aren't on board with the "disparate impact" sorts of analyses that have been floated over the last few years with respect to school punishments, that the ACLUPA report still has a lot going for it, and that the argument can be made in such a way that it has broad, if maybe not universal, ideological appeal.