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Education Reporter
Number 136 EDUCATION REPORTER May 1997

Common Sense Urged over 'Zero Tolerance'

WASHINGTON, DC - The Department of Education's Office of Civil Rights has issued sexual harassment guidelines for school officials that stress the need for sound judgment and common sense.

The new federal guidelines, which contain no hard-and-fast rules on specific behaviors, explicitly direct schools to take account of students' ages and maturity levels in administering "zero-tolerance" rules. The guidelines demonstrate, by use of example, what would and would not constitute sexual harassment.

The guidelines state that a single, casual incident of inappropriate behavior is not sexual harassment: "Sexual harassment must be sufficiently severe, persistent, or pervasive that it adversely affects a student's education or creates a hostile or abusive educational environment. For a one-time incident to rise to the level of harassment, it must be severe."

The widely-reported case of 6-year-old Johnathan Prevette, who received a one-day suspension and was excluded from an ice-cream party for kissing a young classmate on the cheek, would not have qualified as sexual harassment.

School officials have instituted strict punishment to protect themselves from lawsuits. The guidelines emphasize the Department of Education's position that schools can be held liable for students harassing other students if school officials know about the problem but do not adequately address or take measures to prevent the incident.

"While any words about using common sense and judgment are helpful, schools are still very concerned about the prevention aspect," said Gwendolyn Gregory, deputy counsel to the National School Boards Association. "It's not that easy, and there's a real worry about being held liable for something you've tried to prevent. This is hardly going to cure all evils."

Curbing crime, like sexual harassment, has been the rationale behind zero-tolerance laws. Within the past three years, every state has instituted laws that order districts to expel for at least a year students who bring a gun to school. The measures comply with the federal Gun-Free Schools Act of 1994 that requires every state to pass such legislation or lose federal education aid.

However, widely publicized cases of over-zealous punishments for minor infractions have caused educators to reconsider how the rules should be enforced.

A few Tennessee legislators are working on loosening their "no weapons" law so that districts can use common sense and discretion in enforcing the law. "There is action to further clarify the zero-tolerance policy so a kindergartner won't be expelled if his parent puts a knife in with his birthday cake," said Sidney Owen of the Tennessee education department.

Many states have gone beyond the federal mandate to enforce zero-tolerance penalties for non-weapon assault and possession of illegal drugs. Some district discipline codes include suspension for carrying items such as nonprescription drugs and nail files. School officials, who may understand they have discretion in administering penalties, choose to follow the letter of the law to avoid lawsuits and to send a clear message to students. The benefits of the zero-tolerance policies, they say, outweigh any harm done to a child who mistakenly breaks a rule.

The National Center for Education Statistics (NCES) says that no evidence exists that proves that zero-tolerance laws lower school crime rates nationwide. The NCES, an arm of the Department of Education, is conducting a study on the effectiveness of such laws. NCES will publish the report next year.

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