Few, if any, trench fighters don’t cringe whenever  another story of zero tolerance disaster comes across the news.  The stories are legion, and condemnation is essentially universal amongst those of us who fight for rationality and proportionality against those bureaucrats who are given a set of rules to be treated as absolutes. 

How, we wonder, can any thinking person, not recognize that zero tolerance, a palliative for the simple-minded, is a failure?

How indeed.  Enter a particularly fine mind, UCLA lawprof Eugene Volokh, in support of zero tolerance.  So what, you mutter, comforted by the self-righteousness of being merely correct.  Let’s not forget that people, and by people I mean journalists, politicians, elected officials and, perhaps most importantly, school administrators, adore professors. 

Have you ever noticed how, in the midst of a story about some heinous crime, the reporter will insert a paragraph stating the views of some crimlaw prof who knows absolutely nothing whatsoever about the actual practice of law, but who opines as to the magnitude of the crime and likely outcome?  Why, you wonder, would this reporter ask someone who is utterly clueless when there are literally thousands of incredibly knowledgeable lawyers available for comment?  Because he’s a professor.  Being hired by the Academy imbues an otherwise unemployable, and certainly incompetent, lawyer with the most important of magical abilities:  Instant credibility.

Taking that a step farther, when the professor is one who can be called “well-respected,” as opposed to the double assistant adjunct prof at Okefenokee Junior College and Auto Repair, his word is written in stone.  No mere person of actual competence can challenge or question it, as he’s a Scholar and we’re mere groundlings, barely worthy of fetching him sherry.

Now I’m not saying that Eugene thinks this, and know, in fact, that he doesn’t.  He appreciates the work of trench lawyers, and realizes that we do the heavy lifting while he gets to hang out by the pool with those UCLA law school starlets.  Still, he understands the power of being a professor.  He needs to use it wisely.

To begin with, a zero tolerance policy means zero tolerance for some class of behavior, with some mandatory penalties. This suggests that some such zero tolerance policies might be good, depending on what is banned and what the penalties are. Zero tolerance for, say, fighting (with an exception for self-defense), with mandatory penalties starting with an afternoon of detention and working up from there, might well be sound. Zero tolerance for bringing sharp knives to school, with no exception for honest mistakes, but with mandatory penalties starting with a week of suspension and working up from there, might also be sound (depending on the circumstances). Zero tolerance for bringing toy pistols to school, with the penalty being a call to the parents, admonition to the child, and confiscation of the toy might be sound as well.

Eugene goes on to explain why discretion on the part of school administrators is problematic, offering a number of instances where discretion feeds both the behavior to be eliminated as well as the perception of unfairness, from which he finds:

This suggests that there are substantial possible benefits to a zero tolerance policy, where at least some punishment is required with no possibility of discretionary waiver, and no “honest mistake” defenses. And while there are some costs to such a policy, those costs are comparatively low for modest punishments, though much higher for greater punishments.

With the equivocal “tentative,” Eugene concludes:

This leads me to tentatively think that the problem is not with zero tolerance policies as such; some zero tolerance policies are probably a good idea, depending on the sorts of student behavior problems and administrator-parent tensions that might be present in the school or the school system. The real problem is with zero tolerance policies that (1) are defined too broadly (for instance, to include butter knives, nerf guns, easily identifiable over-the-counter medicine, and the like) or (2) carry punishments that are highly unjust as to a nontrivial fraction of the incidents in which the policy will be applied.

It’s hard to pin down a problem Eugene’s views, since he does the putatively undoable: He supports zero tolerance with caveats.  The problem, of course, is that there is no animal like that.  Zero tolerance, by definition, doesn’t come with reasonable discretion, which is what makes it zero (as in, “zero”) tolerance.

From an academic perspective, Eugene’s views are completely understandable, as scholars can equivocate like nobody’s business.  From the bureaucratic perspective, they offer solace to grocery clerk with a checklist who expels students for the most absurd offense.  Why?  Because a professor endorsed zero tolerance.  Not just any professor, mind you, but a well respected one.

Just as we keep scratching our heads and wondering how it’s possible that anyone, anyone, could cause the mindless, idiotic harm to children that school administrators so routinely, and so unapologetically, do, a well-respected academic like Eugene comes along and offers an overly nuanced, highly qualified (as in, too many qualifiers to make “zero” mean “zero”) yet open endorsement of likely the most dangerous and damaging approach to discipline around. 

Eugene, don’t do it.  I realize that intellectual freedom, the need to discuss, raise, question, challenge ideas, pushes your curiosity into such matters.  To the scholar, this might be a worthy debate on a theoretical level.  But like it or not, you have power to influence others.  They will seize on your words and use it to prove that zero tolerance is a wonderful concept, a justified and justifiable concept, and they will expel students with nerf guns, or who point fingers, or draw images of bombs bursting in air. 

Sure, we know that your musings aren’t worthy of such recognition, but they don’t.  The media, the politicians, the grocery clerks, are so overwhelmingly impressed by your professorial status that they will hang their policies on your conclusions, and hang their students alongside.  Is this what you want?  Do you want to be the cause of such mindless pain and suffering?

No doubt it’s been an interesting intellectual exercise thus far, and I truly hope you’ve enjoyed it, Eugene.  But please, I’m begging you, see the writing on the wall, how your words will be spun, shortened, simplified and abused.  Your support for zero tolerance will be the counterweight to all those voices screaming for its demise.  Don’t let that happen.

Eugene, use your power for good rather than evil.  Denounce zero tolerance.  Do it for the children.