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On The Front Lines

Zero Tolerance = Zero Common Sense: Sixth Grader Reported to Police for Flashing Toy Gun as Part of Zoom Class Halloween Game

MATTHEWS, NC — Warning that misguided school zero-tolerance policies can have disastrous ramifications for students’ future academic prospects, The Rutherford Institute has come to the defense of a North Carolina student who was denied admission to a charter school based on an improper and unlawful suspension in his records arising from an incident two years earlier.

The incident arose in 2020 after the sixth grader was suspended from school and reported to police for possessing a look-alike weapon and making a threat after he briefly displayed a toy gun during a virtual Zoom class as part of a Halloween game when instructed by his teacher to look “scary.” Although school officials subsequently agreed to remove the unlawful suspension from the student’s record, they shared details of the incident two years later with a charter school to which the child was admitted. In once again coming to the student’s defense, Rutherford Institute attorneys warned that negligently distributing false information which causes harm to a student’s standing and reputation could constitute defamation.

“Young people are now first in line to be searched, surveilled, spied on, threatened, tied up, locked down, tasered, and treated like criminals for non-criminal behavior,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Clearly, the pathology that characterizes the American police state has passed down to the schools.”

As part of their COVID-19 protocols in recent years, many schools around the country held virtual classes using the Zoom meeting application. For at least part of their schooling, students remained at home and received instruction and participated in classes through a webcam-enabled computer where they see and are seen by their teacher and classmates. On October 27, 2020, a sixth grader at a North Carolina school was participating from home in a Chinese class via Zoom when the teacher asked students to make a scary face as part of a “Trick or Treat” Halloween activity. When this particular sixth grader’s turn came, he wordlessly pointed a broken toy gun at the computer screen as his scary gesture. It was the only time the toy appeared during the class. Afterwards, the teacher reported the incident to the school’s principal. School officials subsequently suspended the boy until November 2 for violating school policies banning look-alike weapons and threatening another student. The incident was also reported to the police, who visited the child’s home to conduct a “safety visit.”

In its November 2020 letter demanding that the suspension be removed from the child’s record, Rutherford Institute attorneys pointed out that state law forbids application of school disciplinary policies to off-campus conduct unless the conduct has a direct impact on the safety of individuals in the school. Although school officials promptly agreed to remove the incident from the student’s discipline records, the school then shared a copy of its suspension letter to the student’s parents two years later with a charter school, to which the student had applied and been admitted. Upon learning of the suspension, the charter school withdrew its acceptance offer and denied the student admission. Rutherford Institute attorneys warned the school that retaining and disclosing inaccurate and misleading documents in a student’s education record could be a violation of the Federal Educational Rights and Privacy Act (FERPA). 

In the wake of a growing number of incidents in which students have been suspended and reported to police by school officials for having toy guns nearby (at home) while taking part in virtual schooling, The Rutherford Institute has also made available to parents a precautionary “opt out” letter as a means by which families whose children are taking part in remote learning / virtual classes might assert their Fourth Amendment privacy rights and guard against intrusive government surveillance posed by remote learning technologies.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.


Case History

November 19, 2020 • TRI Defends Sixth Grader Suspended for Displaying Toy Gun During Zoom Class

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