Schools Show ‘Zero Tolerance’… of the Constitution

Nat Hentoff

For years, public school systems and principals around the nation have rigorously exercised a “zero tolerance” policy that imposes severe, automatic punishments for students accused of dangerous or other harmful actions. An outrageous but not uncommon imposition of zero tolerance that I’ve been following concerns a then-freshman student, Andrew Mikel II, suspended from Spotsylvania High School in Virginia in December 2010 for the remainder of the school year. During a lunchtime period, he had been fooling around by hurling a few little pellets, like plastic spitwads, at students. Although he had no previous disciplinary record, this honor student who was also active in his church and in the ROTC was initially suspended for ten days. The charge—under the school’s Student Code of Conduct—was criminal assault and, I kid you not, possession of a weapon.

I first heard of Mikel’s case—having reported on others—from John Whitehead. Whitehead is the nation’s only regular defender of these zero-tolerance “criminals” in court—and he renders this service at no charge. He is president of the Rutherford Institute in Charlottesville, Virginia. (Keep in mind that Virginia was the home of Thomas Jefferson and James Madison, the latter often referred to as “the father of the Constitution.” At the 1787 Constitutional Convention, Madison was the only person who took notes of the daily proceedings, which were closed to the press. Interestingly, it was also Madison who first introduced the Bill of Rights in our first Congress.)

Whitehead, a lawyer and warrior for the Constitution, reports what happened next to teach this high school student a public lesson in proper school behavior in this land of the free and home of the brave: a fusillade of consequences that might well dog Andrew Mikel for a lifetime. The Spotsylvania County School Board upheld his suspension “for the remainder of the school year”—and dig this: “school officials referred the matter to school law enforcement, which initiated juvenile criminal proceedings for assault.” Then came what Mikel’s high school regards as rehabilitation for this menace to the school community. He was “placed in a diversion program and had to take substance abuse [sic] and anger management counseling.”

When this young man applies to colleges of his choice—unless he is cleared by a higher court—his criminal record will follow him. It may eventually make him “a person of interest” to state and local police, as well as qualifying him for a Federal Bureau of Investigation “threat assessment” investigation—without the FBI, of course, having to be troubled by first going before a judge for permission.

But currently, young Mikel has at least earned the attention of the Virginia judiciary. Whitehead’s attorneys asked the Spotsylvania County Circuit Court to overturn the School Board’s ruling as “arbitrary, capricious and an abuse of discretion.” So how did the County Circuit Court rule? It upheld his punishment by his high school. But the judges were slightly troubled by the “incongruous” suspension of Mikel for the remainder of the school year when a student at this same high school got only a ten-day suspension for punching another student in the eye.

Next stop for the Rutherford Institute: the Supreme Court of Virginia. Says Whitehead: “In asking the Virginia Supreme Court to rehear the case, Institute attorneys challenged the school’s characterization of Andrew’s actions as ‘criminal’ and the spitwads as ‘weapons,’ contending that there was no indication that Mikel intended to harm anyone and that the plastic tube and pellets did not rise to the level of ‘weapons’ as defined by the school code…. Furthermore, Institute attorneys insisted that Andrew’s conduct did not rise to the level required by the school code. Furthermore, Institute attorneys insisted specifically that Andrew’s conduct did not rise to the level required for expulsion or long-term suspension under the School Code of Conduct.”

That’s a pretty strong case for a rehearing, I would think. But—and it’s a startling “but”—Virginia’s Supreme Court did not agree. It refused the petition for a rehearing.

As I have reported elsewhere, the unyielding doctrine of zero tolerance in public schools continues to produce violations of due process, unilaterally saddling students with suspensions or expulsions for purportedly defying these schools’ codes of conduct, and often with criminal prosecutions as well. Since most public schools these days have no civics classes, only the futilityof “equal protection under the laws” is being taught.

Whitehead tells it like it is: “We have moved into a new paradigm in America where young people are increasingly viewed as suspects and treated as criminals by school officials and law enforcement alike. To then be denied justice by the courts only adds to the wrongs being perpetrated against young people today.”

As zero tolerance abounds in public schools around the country, young citizens are being marked and classified as suspects and criminals. In these institutions where cruel—but usual—practices are the rule, do any teachers somewhat familiar with our founding document’s Bill of Rights speak to their classes about where in the Constitution they can find the brutish clauses these dangerous students are being assaulted with?

Has a single senator or congressman spoken about this, instead of chanting about the crucial need to protect American values in this age of rampant terrorism being nurtured by lawless nations?

Nat Hentoff

Nat Hentoff is a United Media syndicated columnist, a senior fellow at the Cato Institute, and the author of, among other books Living the Bill of Rights (University of California Press, 1999) and The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2004). His latest book is At the Jazz Band Ball: Sixty Years on the Jazz Scene (University of California Press, 2010).


For years, public school systems and principals around the nation have rigorously exercised a “zero tolerance” policy that imposes severe, automatic punishments for students accused of dangerous or other harmful actions. An outrageous but not uncommon imposition of zero tolerance that I’ve been following concerns a then-freshman student, Andrew Mikel II, suspended from Spotsylvania High …

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