Decriminalizing School Misbehavior:

Alternatives to School Referrals and Arrests

Introduction

Nationwide, school administrators are given wide discretion to use a range of exclusionary disciplinary tools that may have negative consequences for students, including referrals to law enforcement and arrests. During the 2017-2018 school year, nearly 230,000 students across the country were referred to law enforcement by schools, and about 25% of those referrals led to arrests.1

In the 1970s, exclusionary discipline, like out-of-school suspension was rare, with less than 4% of students experiencing a suspension in 1973.2 However, growing concern about crime and violence in schools through the 80s and 90s led school districts to adopt zero-tolerance policies that required students to be suspended for some offenses. Today, the suspension rate for all students has nearly doubled since the 1970s, with disproportionately high increases for Black and Hispanic students.3 Concurrently, the number of School Resource Officers (“SROs”) have increased by nearly a third between 1997 and 2007, and expulsions and school-related arrests are on the rise.4

Born out of the War on Drugs, zero-tolerance legislation began in the 1980s, as the nation saw the rise of mass incarceration and disproportionate rates of arrest and incarceration of people of color.5 Continued through the 1990s, which saw the passing of harsh federal sentencing laws such as three strikes and mandatory minimums, President Bill Clinton signed a zero-tolerance policy that mandated expulsion from school into law. In 1994, the Gun-Free Schools Act mandated a year-long suspension for any student that bought a “weapon” to school.

Today, in the school context, zero-tolerance policies involve removal from school for a range of school-based infractions that range from violent behavior to dress code violations. Broadly interpreting the meaning of weapon, schools have had students arrested for offenses such as doodling on a desk, using a toddler-proof butter knife to cut a peach to share with friends, and having a food fight.6 As zero-tolerance policies are increasingly applied to misunderstandings and common childhood misbehavior, the convergence between schools and the criminal legal system has grown.