10/27/2003

Tracking and Fighting Zero Tolerance

The following annotated list describes The Rutherford Institute's activity in defense of schoolchildren whose rights to freedom of speech, due process, property, privacy and public education have been violated by imposition of Zero Tolerance (ZT) policies. As noted by national columnist John Leo, The Rutherford Institute has led the way in "tracking and fighting" zero tolerance policies in the United States (see U.S. News & World Report, Dec. 13, 1999, page 19). The West case, discussed below, is to our knowledge the first reported zero tolerance case to be litigated in a federal court and heard by a federal appellate court.

Douglas Mansfield v. Salem-Keizer Public School District (OR)
Fourth-grader Douglas Mansfield was suspended for three days after being accused of singing a parody of the "Barney & Friends" song which school officials deemed a violation of his school's zero tolerance policy for threats to persons. Specifically, Mansfield was accused of conducting aggressive behavior, verbal assault, harassment, and insubordination. The suspension was upheld.

Robert Richardson v. Concord School District (IN)
Thirteen-year-old Robert Richardson was expelled for one semester after being accused of violating the school's zero tolerance policy forbidding possession of drugs or over-the-counter medications, "including diet aids." Richardson had expressed concern that his girlfriend was abusing a diet aid called "Fatburners" (a non-medicinal dietary supplement made of nuts, cinnamon, mustard seeds and grapefruit rind). He took the bottle of fatburners from her at school, placed them in his locker and sought special counseling for his friend's situation. An investigation revealed Richardson's possession of the diet aid and, without regard to his intent or to the non-medicinal nature of the substance, he was expelled and all administrative appeals denied. This was the seminal case that motivated The Rutherford Institute to research Zero Tolerance further and to launch a national effort to fight ZT policies. The expulsion was upheld.

Brandon MacLean v. Loudoun County Schools (VA)
Fourth-grader Brandon MacLean was suspended for two days and recommended for an expulsion (resulting in a total of six school days missed) due to alleged violation of the school's zero tolerance policy against possession of any instrument which could induce fear in another person. MacLean had been reported to school officials by a classmate who had observed him taking a "nerf-like" gun out of his bookbag on his way home from school. School officials formally suspended MacLean for in-school possession of what they cited was a BB gun. A Rutherford Institute attorney appealed the suspension to the Superintendent's designee, arguing that the school officials deliberately suspended MacLean when they had knowledge that the toy was not a BB gun as they alleged and reported MacLean to the Sheriff's Department for a criminal violation. The Superintendent's Office affirmed the two-day suspension without comment. A state circuit court reversed the school board hearing officer's decision, throwing out the suspension on the grounds that it violated MacLean's due process rights. This case was one of the first zero tolerance cases in Virginia.

Commonwealth of Virginia v. John Doe (VA)
A ten-year-old Arlington County fifth-grade student was charged with a Class 3 felony of "adulteration of food, drink, drugs, cosmetics, etc." because he allegedly helped a friend put hand soap in their teacher's water bottle. The boys put the alcohol-based antibacterial soap into their teacher's water bottle while he was out of the classroom. The teacher, who immediately discovered that soap had been added to his water, was not harmed and did not become ill after drinking from the water bottle. The school's principal suspended the boys for three days and made them clean up the cafeteria for a week as a punishment for their prank. Unfortunately, under the zero tolerance policies in place, the matter was reported to the school's resource officer who reported it to the Arlington Police. After their investigation, the police decided to proceed with felony charges against both boys. The other boy involved pled guilty to misdemeanor assault and battery. John Doe's family agreed to a reduced charge of simple assault and battery, with indefinite probation and counseling.

Jayson Gilbert v. School District 5 (SC)
Tenth-grader Jayson Gilbert was expelled from school for one semester when he voluntarily produced a Swiss Army knife from his pocket that he had accidentally carried with him on a field trip with his R.O.T.C. group. The knife was in the pocket of pants he had been wearing the day before while working in his yard. Previous R.O.T.C. outings had listed "pocket knife" as a necessary packing item. This was not a requirement for this outing, and school officials chose to apply "in-school" policies to this situation despite any finding of nefarious intent and despite the ambiguous nature of the conflicting policies. The school imposed zero tolerance and deprived Gilbert of constitutionally required due process. The Institute was contacted several months after the expulsion. The school voted against overturning his expulsion. The school, after the fact, changed their weapons policy but refused to expunge Gilbert's record. Even had the school expunged his record, Gilbert can no longer be accepted into the Air Force Academy, which had been his desire.

Jonathan Burton v. Cumberland County School District (NC)
Eleventh-grader Jonathan Burton was suspended and recommended for expulsion when school officials searched his vehicle and found a steak knife partially covered underneath the passenger-side floor mat. Burton's father had used the knife a week earlier while helping his son make electrical repairs to his car's stereo system. The knife had inadvertently been left in the car, hidden by the floor mat. Despite the fact that Burton had no knowledge that the knife was even in his possession, school officials imposed a zero tolerance policy for possession of weapons. A Rutherford Institute affiliate attorney intervened during Burton's administrative appeal before the school superintendent. The superintendent dropped the charges against Burton, cleared his record and returned him to school.

Terry West and T.J.West v. Derby Unified School District No. 260 (KS)
Thirteen-year-old T.J. West was suspended for violating Derby Unified School District's zero tolerance policy against racial harassment and intimidation when he drew a replica of the confederate flag on a scrap of paper. The flag was listed as a prohibited symbol of racial hatred. Despite having no racial motivation and having shown the flag to no one who was offended, T.J. was suspended. The Rutherford Institute filed suit in the federal district court of Kansas in Wichita. Following a trial, the court ruled that West's First Amendment right to freedom of speech was not abridged by the school's zero tolerance policy. The 10th Circuit Court of Appeals in Denver, Colorado, affirmed the district court's ruling. Rutherford Institute attorneys petitioned the U.S. Supreme Court to hear the case, but the Supreme Court declined to do so.

Benjamin Ratner v. Loudoun County School Board (VA)
Loudoun County Public School administrators suspended Ben Ratner, an eighth grader at Blue Ridge Middle School, for taking a knife from a suicidal friend in an effort to prevent her from committing suicide. Ben's friend passed him a note in study hall saying that she had brought a knife to school and was contemplating suicide. Ben persuaded her to give him the knife, and he placed it in his locker for safekeeping until he could take it home and speak to her parents about it. A fellow student informed school officials of the knife in Ben's locker, and they removed Ben from school for violating the school's weapon possession policy. Officials for the Loudoun County Public Schools have said that Ben's actions were "noble" and "admirable" and admit that he posed no threat to himself or others. Nevertheless, they suspended Ben through February 1. The suspension was upheld by the school board at an appeal hearing. A complaint was filed in Federal District Court and dismissed. Rutherford Institute attorneys appealed the case to the Fourth Circuit Court of Appeals, which upheld the district court’s ruling. An appeal to the U.S. Supreme Court was denied.

Paul Hogge and Hampton Public Schools (VA)
Eleventh-grade honor student Paul Hogge was suspended from school for having two pocket knives in the glove compartment of his car. Hogge had been working on a chemistry homework assignment which involved identifying the chemical make-up of mustard and tear gas. Considering his actions to be suspect, a neighbor, whom Hogge had approached for help on the project, reported his activities to school officials. Although Hogge's chemistry teacher confirmed that the homework assignment was valid, school officials insisted on searching Hogge's car. The search yielded two pocket knives in the glove compartment, one that had been a souvenir from a trip to North Carolina and one he had used on a recent fishing trip with his father. Hogge had had no history of disciplinary problems. The Rutherford Institute represented Hogge at the school board hearing wherein the suspension was reduced to ten days. The case has been resolved to the mutual satisfaction of both parties.

Tawana Dawson and Escambia County School Board (FL)
Tawana Dawson, a student with a good academic record and no disciplinary problems, was expelled from school for bringing a pair of nail clippers to school. The sophomore at Pensacola High School had lent the nail clippers to a friend so that she could clean underneath her nails. The nail clippers had a two-inch attachment on them, which the school's hearings officer deemed to be a "knife blade." Tawana's case was appealed to the school board where it was overturned by a unanimous vote. The board's decision allowed Tawana to return to school for the next school year but on "strict probation," whereby she would automatically be expelled if she has further discipline problems. After another meeting with the school board by a Rutherford Institute attorney, the school board agreed to treat Tawana fairly upon her return to school. The school board also agreed that Tawana would not be treated any more harshly for minor offenses than other students.

Lauren Meeks v. Harford County Schools (MD)
Ten-year-old Lauren Meeks was initially suspended for ten days for having a paring knife in her lunch box while at school. During her lunch period, one of the teachers in attendance saw Lauren slicing her apple with a paring knife. The teacher brought the knife to the attention of the assistant principal who, in turn, notified the principal. Lauren was taken to the principal's office and immediately suspended. It was determined in a hearing before the principal that Lauren would be suspended for three days with no appeal process after this final determination. It was noted in her school file that she was found in possession of a weapon on school property. The teacher who brought this matter to the attention of the assistant principal informed him that if she had known Lauren was going to get in trouble, she would not have brought the knife to his attention. The assistant principal stated that if she had not told him, he would have fired her.

John Doe v. Sayreville School District (NJ)
Four kindergarten boys from Sayreville, New Jersey, were suspended for three days for playing "cops and robbers" on their school playground. While the school district claims to have no official written policy mandating "zero tolerance" of violent behavior or threats, the actions by the Sayreville school officials are consistent with those of many other school districts who have adopted such blanket policies. A Rutherford Institute attorney is representing one of the boys and his family and will seek to have his suspension expunged from his school record. Rutherford Institute attorneys filed suit in U.S. District Court for New Jersey for damages due to constitutional violations and emotional trauma caused to the child. The case was dismissed on April 24, 2002, but an appeal has been taken to the Third Circuit Court of Appeals. The Third Circuit upheld the U.S. District Court’s dismissal on June 23, 2003. The Rutherford Institute has filed an appeal to the Supreme Court.

Hagood v. Upper Elementary School (NJ)
Attorneys for The Rutherford Institute filed suit in U.S. District Court for New Jersey on behalf of a nine-year-old Plainsboro, New Jersey student who was suspended from school for a day and ordered to undergo a psychological evaluation after mentioning to a classmate his intent to "shoot" a fellow classmate with a wad of paper. Parents of a student at Upper Elementary School contacted the school district after hearing about a conversation fourth-grader Michael Parson had with a fellow student in which he described his plans to "shoot" a girl with spit balls, also called "paper wasps." Despite the fact that the "weapon" considered suspect consisted of a wadded-up piece of moistened paper and a rubber band with which to launch it, district officials notified local police, suspended Michael under the school's zero tolerance policy, and required him to undergo a psychological evaluation before returning to class. Local police went to the Hagood home after midnight and questioned Michael about the "shooting" incident. The case has been resolved to the mutual satisfaction of both parties.

Denton v. Louisa County School Board (VA)
Rutherford Institute attorneys are representing Ashley Denton, a Louisa County seventh grader who was suspended from school because of a song she wrote for a creative expression class project. Ashley's teacher was offended by graphically violent references she incorporated into the project. Although Ashley is a straight-A student and her teachers acknowledged that she was not a threat to anyone, the school imposed a suspension on her in accordance with its zero tolerance policy against "threatening" speech. In April 2002, Rutherford Institute attorneys filed a lawsuit in federal district court in Charlottesville, Va., and the case is currently in the discovery stage. The case has been resolved to the mutual satisfaction of the parties.

Kissinger v. Jonesboro School District (AR)
Eight-year-old Christopher Kissinger was suspended for pointing a chicken finger at a teacher and saying "Pow, pow." School officials claim the student's action violated the school's threatening speech policy. Kissinger's parents have decided not to pursue any further action.

John Doe v. Styvensant Public Schools (NY)
Styvensant Middle School officials suspended a 13-year-old boy for two days for entering into a discussion generated by his teacher. The teacher encouraged students to discuss future aspirations and professional inclinations. One student asked, "I may acquire all the knowledge and skills to be a medical doctor, but what if I ended up being an assassin?" The 13 year old responded, "If I know how to make bombs, does it mean that I will go around killing people?" He was suspended for threatening speech.

Mortimer v. Honeoye Central School (NY)
A 16-year-old student was suspended for five days for allegedly making a terrorist threat. Michael Mortimer had spoken to a fellow student about the school shootings in California, when his classmate asked him what students are normally targeted. Michael responded that it seemed as if the popular students were the ones shot. Upon being asked who he thought were the most popular students at their school, Michael responded with some names. Based on this conversation, the classmate informed school officials that Michael had threatened to shoot certain students. After being suspended from school for five days and questioned by police, Michael was forced to undergo a mental evaluation before being allowed back into school. Although they have not formally phrased it as such, school officials exhibited zero tolerance towards speech they considered unhealthy.

Alston v. Irvington School District (NY)
Hamadi Alston, a third-grader at Augusta Street School in Irvington, N.J., was arrested for using an L-shaped piece of paper as a gun in a pretend game of “Cops and Robbers.” Police officers then arrested Hamadi and charged him with threatening to kill other students. Hamadi was held for 4½ hours before being released into his father’s custody; he was suspended from school for one day. After two court appearances, the criminal charges were dismissed. Hamadi has since been treated for Post Traumatic Stress Disorder. Attorneys for The Rutherford Institute have filed suit on charges of false arrest, malicious prosecution, violations of Hamadi’s free speech rights and the unconstitutional application of baseless zero tolerance policies.

Broadfield v. Delavan Schools (IL)
A teacher at Delavan School assigned a group of junior high student students a book to read about the Holocaust and allowed them to choose whether to do a written report or act out being a Jew for one day. The following day, the students were instructed to write an essay describing what they would do if the Holocaust were to take place at Delavan School. One student, Travis, wrote a paper stating he would help the Germans by killing all the teachers and then engage in cannibalism. Travis was suspended indefinitely for threatening speech.

George v. Ouachita Public Schools (AR)
School officials suspended a seventh-grade student for 10 days for violating a school policy prohibiting the writing of a "joking threat." The student had given a classmate a letter that the school believed fell under the definition of a legitimate threat.

Walker v. Ouachita Parish School District (LA)
Raleigh Walker, an 8-year-old third grader, was suspended for drawing a picture of a G.I. Joe soldier (he named it Commando Man), armed with guns, knives, and grenades. The principal said he found the drawing "disturbing" and imposed one day of in-school suspension on Raleigh.

Carter v. Martin County School District (FL)
School officials criminally charged a 9-year-old student with aggravated assault and disrupting a school function. After the close of school, Curtis Lee Carter allegedly removed a silver toy gun from his book bag and made "shooting motions." A Rutherford Institute affiliate criminal defense attorney represented the Carters.

Brown v. Lee County School District (FL)
After discovering a table knife on the floor of 18-year-old honor student Lindsey Brown’s car, school officials at Estero High School in Ft. Myers, Florida, suspended her for five days and had her arrested and held in county jail on a felony charge of possessing a weapon on school property. In addition to being suspended without a hearing or an opportunity to explain the presence of the flatware in her car, school officials have refused to allow Lindsey to participate in her senior class graduation ceremony. Attorneys for The Rutherford Institute filed a motion for a temporary restraining order in federal court, in the hopes that Lindsey would be permitted to participate in the graduation exercises with her classmates. The motion was denied.

Porter/Leblanc v. Ascension Parish School Board (LA)
A high school junior was charged with felony terrorist threat and possession of firearm on school property after school officials discovered a two-year-old drawing he had done of helicopters and missiles attacking a school building. School officials saw the drawing when the student’s little brother inadvertently included it among some other drawings he took to school to show his teacher. School officials contacted the police, who then searched the older student and found a box cutter knife, which he used for work. A Rutherford Institute affiliate criminal defense attorney is representing the student. A civil suit has also been field in federal court in Baton Rouge, Louisiana.

Pecaro v. Silver Valley Unified School District (CA)
A nine-year-old boy was threatened with suspension if he didn’t stop playing cops and robbers on the playground. The boy’s father, an Army Sergeant based at Fort Irwin, removed his son from class to pre-empt the principal from suspending him for child’s play.

Williams v. Bluefield High School (WV)
A high school student was expelled from school for disarming a fellow student and throwing the gun in the bushes outside the school. After discarding the gun, the student attempted to call his mother, a school board member, for her advice on what to do next. Before he could get his mother’s advice, he was called into the principal’s office and expelled, along with the student who initially brought the gun onto school property. The Rutherford Institute provided local counsel with legal analysis.

Hedgepeth v. WMATA (DC)
Washington, D.C. Metro Police arrested 11-year-old Ansche Hedgepeth for allegedly eating French fries in a Metro station after school. Police officers handcuffed Ansche and took her to the police station where they formally booked and charged her. Attorneys for The Rutherford Institute filed motions for summary judgment in U.S. District Court for the District of Columbia against the Washington Metropolitan Area Transit Authority (WMATA) and the Washington, D.C. chief of police. The court recently dismissed the lawsuit, and an appeal will be filed.

Donaldson v. Muskogee Public School District (OK)
School officials suspended sixth-grader Bryson Donaldson for playing a make-believe game of “Cops and Robbers” using his fingers while waiting in the school lunch line. Although several other students were also participating in the game, Bryson—the only black student involved—was the only one disciplined. Attorneys for The Rutherford Institute have filed a complaint in U.S. District Court for the Eastern District of Oklahoma on behalf of Bryson’s rights of free speech, free assembly, due process and equal protection. The case has been dismissed, but may be refilled in the future.

McKnight v. Cobb Middle School
A sixth-grader was suspended for ten days and arrested after school officials discovered a small manicure kit belonging to her in the school classroom. The young girl has been charged with possession of a weapon on school grounds. The Rutherford Institute is investigating the possibility of litigation.

Moffitt v. Florida High School
A 14-year-old student enrolled at a K-12 development research school owned and run by Florida State University was arrested after cutting herself with an Exacto knife. The student, who cut herself when she accidentally picked up the Exacto knife along with her pens and pencils while preparing to leave her Engineering Technologies class, visited the school nurse for help. After the student explained to the nurse how she had cut herself and showed her the knife, the nurse contacted the Dean of Students, who, in turn, reported the incident to the Student Resource Officer. Several days later, the student was arrested. The Rutherford Institute is investigating the possibility of litigation.

Muller v. Valley School District Re-1
Seventh-grader Mitch Muller was expelled for a year from La Salle Middle School for playing with his friend’s miniature laser pointer. School officials expelled both boys for playing with the 2 ½-inch pointer, which the school classified as a “firearm facsimile.” Rutherford Institute attorneys have petitioned a Colorado State court to set aside the order of the Board of Education expelling Muller.

Collins v. Prince William County Schools
A Virginia high school student was charged with four felonies and expelled for a year for
performing a chemistry experiment off-campus that involved exploding a plastic bottle with a mixture including toilet cleaner. The Rutherford Institute is investigating the possibility of litigation.

Griggs v. Fort Wayne School District
A high school freshman was suspended for wearing a T-shirt that featured the “Marine Corps Creed” and an M-16 rifle. Rutherford Institute attorneys are preparing to file suit to have the decision reversed.

Montgomery v. Duncanville District Schools (TX)
In Texas, a zero tolerance dress code has led to over 800 suspensions since the school year began, most for students wearing their shirts untucked. In accordance with the policy, school officials immediately suspend 9th through 12th-grade public school students for two days if their shirts are found to be untucked. One 13-year-old, upon entering school at the start of the school day, was approached by a school official and told to tuck in her blouse. Although the student immediately complied and apologized, she was still suspended for two days. Institute attorneys are investigating the matter on behalf of several concerned parents.

Hearn v. Muskogee Public Schools (OK)
School officials suspended 11-year-old Nashala Hearn for wearing an Islamic holy head covering to school. The school refuses to allow any exception to its dress code regarding the wearing of caps and, therefore, will not recognize the Muslim student’s request for religious accommodation. Institute attorneys are investigating the matter.