Magazine | October 28, 2013, Issue

The Prohibition of Childhood

Innocuous play is punished amidst dangerous conduct

Bubble-blowers, fingers, and pastries: All have led to the suspension of five-, six-, and seven-year-old miscreants from America’s schools. Their offenses? Using these implements as imaginary guns. When school officials act on their belief that a five-year-old threatening to discharge a Hello Kitty bubble blower constitutes a “terrorist threat,” something in our practice of school discipline has clearly gone wrong. The purpose of school discipline should be to make students behave so that schools can accomplish their mission of teaching them, not to punish kids for, well, being kids. Now schools punish innocuous behavior, while the Department of Education is encouraging schools to tolerate disruptive behavior.

The proximate cause of this situation is not difficult to locate. Starting with Tinker v. Des Moines in 1969 and continuing through the mid 1970s, the Supreme Court vastly expanded the free-speech and due-process rights of students. It required “rudimentary” due-process rights for students receiving less severe punishments, such as suspensions of fewer than ten days, and “more formal protections” for students threatened with longer suspensions. The Court made all school officials personally responsible for knowing “the basic unquestioned constitutional rights” of students — and personally liable when they violated them.

But what rights count as unquestioned is sometimes quite unclear. Pity the poor principal who has to make sense of the Court’s Establishment Clause jurisprudence. That area baffles even federal judges, one of whom referred to it as “a vast, perplexing desert,” so what hope can there be for school officials whose entire job is not the interpretation of Supreme Court rulings? Making decisions about what celebrations of the winter solstice to allow or forbid is, ironically, more an exercise of faith than of legal judgment. Regardless of how they decide, school officials risk offending someone who can accuse them of violating his rights. As Justice Stephen Breyer said in his partially concurring, partially dissenting opinion in Morse v. Frederick, the “Bong Hits 4 Jesus” case, “teachers are neither lawyers nor police officers; and the law should not demand that they fully understand the intricacies of our First Amendment jurisprudence.”

The judicial expansion of student rights prompted schools to rely less on their judgment and discretion when establishing discipline policies. They moved toward more formal procedures and zero-tolerance policies, which create the comforting illusion that they are liberated from having to make any disciplinary decisions at all. And so disproportionate punishment of students has sometimes increased along with their legal entitlements. Students receive due process, but if the policy requires severe punishment, the schools impose it.

In addition to impeding the education of punished students, these policies create a vicious circle that degrades the ability of schools to educate their students. Unsurprisingly, research shows that as students become increasingly aware of legal entitlements, they become less likely to view school-discipline policies as fair. And students who believe that disciplinary policies are unfair are more likely to disobey teachers and disrupt classroom instruction.

Since the mid 1970s, the Supreme Court and lower federal courts have been more sympathetic to school officials in school-discipline cases. Recognizing that management of schools is not within their institutional competence, justices from both the conservative and the liberal wings of the Court have cautioned against creating a list of judicially crafted rules for schools to follow. Yet despite the latitude granted by the judiciary, school officials continue to march toward the institution of ever more legalistic disciplinary procedures. They often have more discretion than we and they think, but simply choose not to exercise it.

Nonetheless, some of the discipline and school-security policies that they have adopted, while not ideal, may be better than any likely alternatives. Some complain about the prisonlike atmosphere created by metal detectors, police officers, and strict discipline policies. They exhort us to take advice from students, who, in their ostensibly Rousseauian innocence, would naturally oppose these measures. But the students seem to see things differently. When interviewed, they have said that they actually appreciate having increased security, because it makes them feel safer, lets them focus on learning, and allows school to be a haven from the violence in their communities.

#page#The most common complaints heard about such policies — that they are racially biased, that they turn schools into prisons, etc. — often ignore the difficulties that schools can have trying to maintain order and discipline. The Education Department’s Office for Civil Rights (OCR) has launched 14 “large-scale investigations into disparate discipline rates across the country,” arguing that higher rates of punishment for minority students is evidence of discrimination. Of course, disparate rates do not actually tell us whether students were punished because of racism or because bad behavior was racially disproportionate.

School districts will likely respond to these investigations by tolerating more disruptive behavior, which will disproportionately harm minority students, particularly in urban school districts.  Following the OCR’s lead, the Maryland Board of Education and, in California, the Oakland Unified School District have adopted policies requiring that racial groups receive proportional percentages of school penalties. Under these policies not only will the students who engage in bad behavior be harmed, since they will learn that they can disrespect others without consequence, but so will the other students. These federal investigations will do nothing to prevent a seven-year-old from being suspended for biting a pastry into the shape of a gun. What they will do is exacerbate real violence that actually disrupts schools.

There is no straightforward solution to the problem. Returning to school discipline policies prior to Tinker is both unlikely and undesirable. And investing discretionary authority in officials who grow faint at reports of five-year-olds brandishing bubble blowers would be unwise.

Some reworking of legal standards would help. Limiting the personal liability of school employees would alleviate their concerns about being sued for trivial reasons. That goal would have to be balanced with the need to ensure the legal protections that the Supreme Court has created for students. Famously, it held in Tinker that students “do not shed their constitutional rights at the schoolhouse door.” Schools might punish student speech only when it created a significant disruption or threatened the rights of other students. With good reason, many conservative, particularly religious, public-interest law firms now view Tinker as an essential bulwark against the bullying of religious students, and often find themselves allied with the American Civil Liberties Union. Students have been punished by school officials for wearing T-shirts with Bible verses on them and forbidden to wear pro-life armbands. Tinker has protected them. Jay Sekulow of the American Center for Law and Justice calls it “the decision you have to hope to hold onto.”

As with many of our educational problems, greater school choice would go a long way toward solving the problems related to school-discipline policy. Parents have the opportunity to consider the disciplinary procedures of schools when deciding where to enroll their children. Do you prefer schools with strict policies? Then send your child to a Knowledge Is Power Program school. Do you think they would be too stifling for your child? Then send her to a school with a more latitudinarian approach. Does the thought of six-year-old boys’ pointing their fingers and saying “Pow!” give you night terrors? Montgomery County, Md., has schools for you.

– Mr. Dunn is an associate professor of political science at the University of Colorado–Colorado Springs and is the co-editor of  From Schoolhouse to Courthouse: The Judiciary’s Role in American Education.

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