By Nat Hentoff, NEA Columnist
Former Chief Judge of New York State Judith S. Kaye always makes necessary sense, as she did when she recently wrote this in the opinion pages of The New York Times:
"As universal pre-K and the Common Core standards dominate the headlines, we cannot overlook a third subject that deserves top billing: keeping children in school and out of courts" (Letters, The New York Times, Feb. 22).
Kaye was writing in response to an op-ed that had run in the Times last month. In it, Robert K. Ross and Kenneth H. Zimmerman, the respective heads of the California Endowment and the United States programs for the Open Society Foundations, wrote: "Large numbers of students are kicked out, typically for nonviolent offenses, and suspensions have become the go-to response for even minor misbehavior, like carrying a plastic water gun to elementary school ...
"The Civil Rights Project at UCLA found that the number of secondary school students suspended or expelled increased by some 40 percent between 1972-73 and 2009-10 ... A study of nearly one million Texas students found that those suspended or expelled for violations at the discretion of school officials were almost three times as likely to be in contact with the juvenile justice system the following year" ("Real Discipline in School," Robert K. Ross and Kenneth H. Zimmerman, The New York Times, Feb. 17).
The "pipeline" that takes students from school to prison has become a national cliche. This mass creation of student outcasts is the product of "zero tolerance" policies in schools across this land of the free and home of the brave.
Only one organization, The Rutherford Institute in Charlottesville, Va., headed by constitutional lawyer and defender John Whitehead, has continuously intervened. Whitehead and his team of lawyers have represented in court -- at no charge -- these victims of zero tolerance. He also reports on these and other cases in his commentary at rutherford.org, which is distributed to hundreds of newspapers. Moreover, these penetrating reports and accounts of different cases also appear online in news websites and in blogs.
He is the Paul Revere of national alerts to preserve the constitutional liberties of current and future generations of self-recognizable Americans.
Here is such a case whose characteristics typically merit Whitehead's expertise (and which he wrote about last year):
At South Eastern Middle School in Fawn Grove, Pa., 10-year-old "fifth grader Johnny Jones asked his teacher for a pencil during class. Jones walked to the front of the classroom to retrieve the pencil, and during his walk back to his seat, a classmate and friend of Johnny's held his folder like an imaginary gun and 'shot' at Johnny.
"Johnny playfully used his hands to draw the bowstrings on a completely imaginary 'bow' and 'shot' an arrow back.
"Seeing this, another girl in the class reported to the teacher that the boys were shooting at each other ...
"The teacher ... contacted Johnny's mother, Beverly Jones, alerting her to the 'seriousness' of the violation because the children were using 'firearms' in their horseplay" ("Rutherford Institute Defends 10-Year-Old Suspended for Shooting Imaginary Arrow, Threatened With Expulsion Under Weapons Policy," www.rutherford.org, Dec. 4, 2013).
The district's zero tolerance policy, in addition to prohibiting "weapons," includes any "replica" or "look-alike" weapon.
The school's code of conduct required Principal John Horton to "contact the appropriate police department, complete an incident report to file with the school superintendent and begin the process of mandatory expulsion immediately."
Added Rutherford senior staff attorney Douglas R. McKusick in a Dec. 4, 2013, letter to South Eastern School District Superintendent Rona Kaufmann: "Johnny's rights were trampled without the due consideration. He was immediately threatened with expulsion, and thereafter summarily suspended without adequate justification ...
"It is our belief that Johnny was deprived of adequate procedural safeguards in the principal's unilateral and misguided application of the zero tolerance policy against him. No actual gun, 'replica' or 'look-alike' was ever presented in any physical form, and Johnny's conduct amounted to nothing more than the kind of horseplay typical of children his age.
"For this reason, we request that you rescind the suspension and immediately remove all reference to it from Johnny's permanent school record."
And what was the eventual outcome, decided in January?
According to Rutherford's bold headline: "Victory."
The story went on: "In response to pressure from The Rutherford Institute, school officials have agreed to rescind their suspension of a 10-year-old boy who was penalized under a school zero tolerance policy for shooting an imaginary 'arrow' at a fellow classmate, using nothing more than his hands and his imagination" ("Victory: School Officials to Lift Suspension From 10-Year-Old Who Shot Imaginary Arrow at Pennsylvania Elementary School," www.rutherford.org, Jan. 16).
Hooray! Johnny Jones remains an American! Quite a victory.
But then I read about another student turning into an outcast in Chicago -- a child whom Rutherford is defending:
"Criticizing Chicago school officials for being overzealous, misguided and incapable of distinguishing between an impotent toy and a dangerous weapon, The Rutherford Institute has come to the defense of an 11-year-old boy who was suspended from school after he voluntarily turned in a non-firing plastic toy gun that had been forgotten in his jacket pocket.
"Caden Cook, a sixth grader at Fredrick Funston Elementary School, was suspended for allegedly violating the school's weapons policy against dangerous objects, in addition to being ordered to undergo counseling, and subjected to intimidation tactics, interrogation, and dire threats by school officials -- all without his mother being present" ("Zero Tolerance: Chicago School Officials Suspend 11-Year-Old Boy Under 'Dangerous Weapons' Policy for Voluntarily Turning in Non-Firing Toy Gun," www.rutherford.org, Feb. 6).
With The Rutherford Institute's intervention, I don't expect Caden's suspension to last for long, though.
But John Whitehead and his band of attorneys can't be everywhere.
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.