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.