Recent stories have documented the ridiculous effects of zero-tolerance weapons policies in a Delaware school district: a first-grader expelled for taking a camping utensil to school, a 13-year-old expelled after another student dropped a pocketknife in his lap, and a seventh-grader expelled for cutting paper with a utility knife for a class project. Where’s the common sense? the editorials cry.
These so-called zero-tolerance policies are actually zero-discretion policies. They’re policies that must be followed, no situational discretion allowed. We encounter them whenever we go through airport security: no liquids, gels or aerosols. Some workplaces have them for sexual harassment incidents; in some sports a banned substance found in a urine sample means suspension, even if it’s for a real medical condition. Judges have zero discretion when faced with mandatory sentencing laws: three strikes for drug offences and you go to jail, mandatory sentencing for statutory rape (underage sex), etc. A national restaurant chain won’t serve hamburgers rare, even if you offer to sign a waiver. Whenever you hear "that’s the rule, and I can’t do anything about it"—and they’re not lying to get rid of you—you’re butting against a zero discretion policy.
These policies enrage us because they are blind to circumstance. Editorial after editorial denounced the suspensions of elementary school children for offenses that anyone with any common sense would agree were accidental and harmless. The Internet is filled with essays demonstrating how the TSA’s rules are nonsensical and sometimes don’t even improve security. I’ve written some of them. What we want is for those involved in the situations to have discretion.
However, problems with discretion were the reason behind these mandatory policies in the first place. Discretion is often applied inconsistently. One school principal might deal with knives in the classroom one way, and another principal another way. Your drug sentence could depend considerably on how sympathetic your judge is, or on whether she’s having a bad day.
Even worse, discretion can lead to discrimination. Schools had weapons bans before zero-tolerance policies, but teachers and administrators enforced the rules disproportionally against African-American students. Criminal sentences varied by race, too. The benefit of zero-discretion rules and laws is that they ensure that everyone is treated equally.
Zero-discretion rules also protect against lawsuits. If the rules are applied consistently, no parent, air traveler or defendant can claim he was unfairly discriminated against.
So that’s the choice. Either we want the rules enforced fairly across the board, which means limiting the discretion of the enforcers at the scene at the time, or we want a more nuanced response to whatever the situation is, which means we give those involved in the situation more discretion.
Of course, there’s more to it than that. The problem with the zero-tolerance weapons rules isn’t that they’re rigid, it’s that they’re poorly written.
What constitutes a weapon? Is it any knife, no matter how small? Should the penalties be the same for a first grader and a high school student? Does intent matter? When an aspirin carried for menstrual cramps becomes “drug possession,” you know there’s a badly written rule in effect.
It’s the same with airport security and criminal sentencing. Broad and simple rules may be simpler to follow—and require less thinking on the part of those enforcing them—but they’re almost always far less nuanced than our complex society requires. Unfortunately, the more complex the rules are, the more they’re open to interpretation and the more discretion the interpreters have.
The solution is to combine the two, rules and discretion, with procedures to make sure they’re not abused. Provide rules, but don’t make them so rigid that there’s no room for interpretation. Give the people in the situation—the teachers, the airport security agents, the policemen, the judges—discretion to apply the rules to the situation. But—and this is the important part—allow people to appeal the results if they feel they were treated unfairly. And regularly audit the results to ensure there is no discrimination or favoritism. It’s the combination of the four that work: rules plus discretion plus appeal plus audit.
All systems need some form of redress, whether it be open and public like a courtroom or closed and secret like the TSA. Giving discretion to those at the scene just makes for a more efficient appeals process, since the first level of appeal can be handled on the spot.
Zachary, the Delaware first grader suspended for bringing a combination fork, spoon and knife camping utensil to eat his lunch with, had his punishment unanimously overturned by the school board. This was the right decision; but what about all the other students whose parents weren’t as forceful or media-savvy enough to turn their child’s plight into a national story? Common sense in applying rules is important, but so is equal access to that common sense.
This essay originally appeared on the Minnesota Public Radio website.
EDITED TO ADD (11/11): Another example:
A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for “doing his duty.”