Asked & Answered: Mark Fancher on zero tolerance

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By Steve Thorpe
Legal News

Gov. Rick Snyder signed a new law in December that grants schools more flexibility in expelling or suspending students, replacing the state's previous "zero tolerance" policies for some offenses. The law went into effect Aug. 1 and state school districts are currently updating their policies. Mark Fancher is the staff attorney for the Racial Justice Project of the ACLU of Michigan. In his work he addresses: racially disproportionate rates of incarceration; racial discrimination against public school students of color, racial profiling, attacks on the democratic rights of communities of color and abusive police practices. Fancher has also played leadership roles in the National Conference of Black Lawyers (NCBL) and has lectured across the country.

Thorpe: Tell us about the history of “zero tolerance” policies in schools. When did rules begin to replace judgment?

Fancher: Zero tolerance has its genesis in the Gun Free Schools Act that was passed by Congress in 1994. That law, which was a response to school violence, requires states with schools that receive federal funding to have a state law that makes expulsion mandatory for students who bring firearms to school. Michigan’s expulsion law has included such a requirement, but the Michigan legislature also saw fit to expand the scope of mandatory expulsion to arson, criminal sexual conduct and to students in possession of “dangerous weapons.” There are also zero tolerance type penalties for students who commit assaults on members of the school community.

The legislature gave school administrators discretion to forego expulsion if a student accused of possessing an object that qualifies as a dangerous weapon can establish in a clear and convincing manner that: the object was not intended to be used as a weapon; or the student didn’t know that he or she had the object; or the student had no way of knowing that the object qualifies as a “dangerous weapon”; or that the reason the student had the object was because he or she was asked to have it by school or police authorities. Some school administrators have been unaware that they have that discretion. Consequently, there are students who have been unnecessarily expelled.

Thorpe: Can you share one “horror story” about the consequences of “zero tolerance"?

Fancher: Sure. In the Fall of 2014, Atiya Haynes was looking forward to a glorious senior year in the Dearborn Heights school district. She made good grades, worked part-time jobs, volunteered in the community, and was generally a model student. Unfortunately, she forgot that several months before the homecoming football game, her grandfather had insisted that she place a pocketknife in her purse as a precaution. During the preceding summer she rode her bicycle to work through a number of very dangerous neighborhoods, and her grandfather worried. Atiya accepted the knife reluctantly and proceeded to forget all about it. It became buried beneath all of the stuff in her purse, and was discovered only when, during the homecoming game she and a friend were stopped by school officials searching all students leaving the football field restroom after the odor of marijuana was detected in the facility. Efforts were made to expel Atiya for possessing a “dangerous weapon.”

The ACLU of Michigan represented her and urged the school board to forego expulsion on grounds that she was unaware that she possessed the knife. The board did not expel her, but tragically they did suspend her for the balance of her senior year. Fortunately, the technical difference between an expulsion and a suspension permitted her to enroll in a different school district and graduate on schedule. She went on to college and even came back and spent a summer as an intern with the ACLU! The Lord was looking out for her even if school officials were not.

Thorpe: Under the new law, school administrators are required to consider seven factors before expelling or suspending a student. What are those?

Fancher: Under the new law, there is a rebuttable presumption that in certain cases a long-term suspension or expulsion is not justified unless school officials have first considered: the student’s age; the student’s disciplinary history; whether the student has a disability; the seriousness of the supposed misconduct; whether the behavior posed a threat to the safety of members of the school community; whether restorative practices will be used to address the behavior; and whether “a lesser intervention” is a more appropriate response.

Thorpe: One of the criticisms of zero tolerance policies has been that there appear to be racial disparities in how they are applied. Tell us about that.

Fancher: We have heard anecdotes about school officials using their lawful discretion to forego expulsion for white students while insisting that zero tolerance means zero tolerance for students of color. Although I personally believe those stories, we have not documented them.

The racial significance of the law really has more to do with a bigger, broader problem. Back in 2009 the ACLU of Michigan published research findings that demonstrated racial disparities in rates of suspensions and expulsions in Michigan’s schools. Specifically, students of African descent were consistently disciplined at rates grossly disproportionate to their representation in the student population. Since that time some school districts have conducted their own studies and found this to be a continuing problem.

There are various factors that account for this phenomenon, including implicit bias. There is evidence that the objective behavior of white and black students is pretty much the same, but black students are disproportionately accused of offenses that are subjective in nature. In other words they are accused of offenses that are in the eye of the beholder. Examples include: “disrespect,” “excessive noise,” “loitering,” or “insubordination.” 

Zero tolerance is not necessarily a cause of disparate discipline, but it certainly ties the hands of administrators who may want to tailor punishment in ways that minimize the impact of racially disparate exclusion from school. There are alternatives to expulsion that, even for serious offenses, drive home lessons that need to be learned without removing a child from school.

Thorpe: Some districts had already begun to replace expulsion and suspension with programs of counseling, including making offenders face their victims and other so-called “restorative practices.” Have these been effective?

Fancher: We hear nothing but good things about restorative practices from schools that have used them. It is a method that is especially useful for children. As parents know, children can sometimes be quite self-absorbed. Frequently, a student who misbehaves and harms others immediately transforms himself or herself into the “victim” when punished. The true victims cease to exist in this young mind.

To address this issue, restorative practices place the offending students in the presence of not only those they have harmed, but also others who have in some way been affected by the misconduct either directly or indirectly. Once the student hears from these people and finally accepts that it’s not “all about me,” they tend to become genuinely remorseful and prepared to not only accept responsibility for their actions but to also participate in activities designed to restore broken relationships and repair harm. Many kids find all of this far more difficult and demanding than sitting at home watching TV during a three-day suspension. They seem to learn their lesson and they generally don’t repeat the misconduct.

Thorpe: What might the future hold? Are there other reforms of these policies you would like to see?

Fancher: I think most of us who have worked on these issues would welcome an evolution of education culture into one that has no place for excluding children from school unless they pose some type of physical danger to others. That’s not to say that children should not face consequences for their actions, but those consequences should be meaningful and effective.

Suspensions and expulsions don’t appear to work very well. They are particularly ineffective during the current epidemic of racial bullying and harassment in many school districts. Parents of victims often want children who use racial epithets or who in other ways demonstrate racial hostility suspended so that they will “learn a lesson.” Too often however children have learned to hate in their homes. When they are suspended they are treated by friends and family like martyrs, and their racial prejudices are reinforced. I would rather have those children undergo a rigorous, demanding racial re-education process. For that reason, the ACLU of Michigan has joined with a number of other organizations to establish Racial Emergency Solutions, Tools, Opportunities, Resources and Education (RESTORE). This coalition is available to go into school districts to provide hands-on assistance with efforts to promote greater interracial understanding.

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