Student Discipline and the Active Avoidance Doctrine

Abstract

Pursuant to zero tolerance discipline policies, public school students have increasingly faced harsh penalties for seemingly innocuous behavior. For example, students as young as six have been suspended from school for using a toddler-proof butter knife at lunchtime, chewing a breakfast pastry into the shape of a gun, and even doodling on a desk. An entire body of scholarship has been dedicated to the denigration of the current student discipline regime, and from it, how the term “School-to-Prison Pipeline” was born. That work criticizes the zero-tolerance approach to student discipline, relying on data that shows how it disproportionately affects students of color and arguing that it places a success barrier for at-risk students, ferrying the most vulnerable students into an irreversible cycle of crime and pushing higher education out of reach. While scholars have opined about the shortfalls and undesirable consequences of exclusionary discipline practices and offered intriguing solutions for reform, the discussion surrounding the constitutional implications of a school’s active avoidance of discipline reform is scant. This Article attempts to fill that void. Student Discipline and the Active Avoidance Doctrine explores the implications of a public school’s active avoidance of discipline reform. By examining the unique school-pupil relationship inherent in the often-misconstrued doctrine of in loco parentis, it offers a novel legal framework for holding schools accountable for the known harms caused by exclusionary discipline and argues that a school’s active avoidance of discipline reform results in educational deprivations that raise Substantive Due Process concerns. Generally, schools owe no legal duty to protect students from harms caused while in school. But, while the in loco parentis doctrine has experienced a turbulent existence in the common law, some state legislatures have explicitly charged schools with in loco parentis status statutorily. These statutes codify a special relationship between students and public schools in those states, which triggers a legal duty to protect students from known harms. Even in states where in loco parentis status is not codified, the combined effect of compulsory education laws and a student’s liberty interest inherent in the Fourteenth Amendment’s Due Process Clause suggest that public schools owe a legal duty to reform broken educational practices. Based on the principle that a public school’s enforcement of zero tolerance discipline results in educational deprivations, this Article introduces the Active Avoidance Doctrine, which closes the gap between Due Process theory and the overwhelming call for student discipline reform.