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Copyright (c) 2003 Case Western Reserve Law Review
Case Western Reserve University

NOTE: Is Intent Required?: Zero Tolerance, Scienter, and the Substantive Due Process Rights of Students

Summer, 2003

53 Case W. Res. 977




The emergence of zero tolerance policies in America's public schools has generated a great deal of controversy during the past decade. Though the creation of such policies dates back to the passage of the Gun-Free Schools Act of 1994, 2 the outrage over its implications entered the spotlight in 1999. Hundreds of people in Decatur, Illinois, and thousands across the nation protested the explusion of seven high school boys for fighting at a high school football game. 3 Ultimately, Jesse Jackson and the Rainbow Coalition went to Decatur to demonstrate against these policies. 4

Zero tolerance has recently come under attack by many different organizations. At its meeting in February 2001, the American Bar Association approved a resolution opposing zero tolerance policies in schools, expressing concern about regulations that require automatic punishment without regard to circumstances. 5 Groups such as the Rutherford Institute have begun to track and fight such policies through the representation of students affected by the imposition of zero tolerance laws. 6

Why do these policies generate so much controversy? At their inception, these regulations were heralded by the American Federation of Teachers, who urged a nationwide adoption of zero tolerance policies to curb the effects of violence in America's schools. 7 Ultimately, the Gun-Free Schools Act of 1994 was passed, whereby each state receiving federal funding pursuant to the Elementary and Secondary Education Act must expel, for at least one year, any student who possesses a weapon on school grounds. 8 Many states have elected ...
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