Derek W. Black (University of South Carolina - School of Law) has posted The Constitutional Limit of Zero Tolerance in Schools on SSRN. Here is the abstract:
As a result of zero tolerance policies, schools suspend and expel twice as many students today as they did two decades ago, including students who have not done anything normatively problematic or serious. Schools insist they have the authority to punish these students. Lower courts, with almost no analysis, agree. This article demonstrates that these lower courts (and scholars) have overlooked fundamental substantive due process principles that would render zero tolerance unconstitutional. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated individuals as though they are the same; (2) disregarding innocence; and (3) presupposing the answers to key due process inquiries and rendering the hearings themselves meaningless. To comply with these principles, substantive due process requires that the state consider individuals’ intent and culpability, along with the harm posed by individuals’ behavior. Zero tolerance policies breach all of the foregoing principles. Moreover, recent Supreme Court decisions in school related contexts suggest the Court may be willing to intervene.