CA Attorney General's Position
April 8, 1998
"Zero Tolerance" Expulsions for First Offenses Involving Drug
or Alcohol Possession
Disapproved
The Attorney General recently considered whether a school district may
adopt a "zero tolerance" policy mandating expulsion for a first
offense involving possession of a controlled substance or alcohol. The
Attorney General recently concluded that a school district policy mandating
expulsion in all cases involving possession of a controlled substance
or alcohol, even for students with no prior record, would be inconsistent
with state law (80 Ops.Cal.Atty.Gen. 348, issued December 1997).
The proposed zero tolerance policy reviewed by the Attorney General
required the principal or superintendent to recommend expulsion of a
student for the first instance of any offense involving a controlled
substance or alcohol. The policy also required the governing board to
approve the
recommended
action by automatically finding that "other means of correction
are not feasible" or "due to the nature of the act, the presence
of the pupil causes a continuing danger to the physical safety of the
pupil or to others."
Based on a reading of the statutory scheme governing the suspension
and expulsion of pupils from elementary and secondary schools, the opinion
concluded that the Legislature intended a case-by-case application of
the relevant criteria since an expulsion results in serious consequences
for both the student
and for the district.
In reading its conclusion, the opinion focused on the specific language
of Education Code Section 48915. For example, Education Code sections
48915(b) and (e) state that if expulsion is recommended, the district
board must find either:
(1) That other means of correction are not feasible or have repeatedlyfailed
to bring about proper conduct; or
(2) That, due to the nature of the act, the presence of the pupil would
cause a continuing danger to the physical safety of the pupil or others.
With regard to the first criterion, the Attorney General concluded that
any such finding must be based on the district's' past experience with
respect to the particular pupil whose expulsion is being considered.
A finding that does not take into account individualized circumstances
(such as the pupil's tractable nature or genuine remorse), may deny the
pupil's right to due process.
With regard to the second criterion, the Attorney General concluded
that a rational connection must be made between the presence of a student
on campus and a continuing danger to the physical safety of the pupil
or others. In the opinion of the Attorney General, it would be difficult
to conclude that
the offending pupil must be removed from the school in order to avert
continuing danger in all cases.
In conclusion, a district may not implement a "zero tolerance" policy
which takes away the discretionary authority granted to it under the
statutory scheme. Therefore, any districts with a zero tolerance policy
may wish to review such policies to ensure that such policies adhere
to the due process concerns noted above.
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