LESS THAN ZERO: LAWSUIT CRACKS VENEER OF SCHOOL POLICY'S ABSOLUTES

A lawsuit filed on behalf of Knox County Schools students expelled for
taking or possessing someone else's prescription drugs is changing the way
the school system's zero tolerance policy is applied.

First filed in January 2001, the lawsuit has since become a class action
and challenges the school system's practice of expelling students without
providing alternative education for them.

In response, the school system is trying out a summer school program for
some expelled students and will place 15 of them in a special alternative
classroom when classes begin in August.

State and local laws which mandate that students who commit certain
offenses will be expelled from school are called zero tolerance because
extremely little flexibility is built into them.

Plaintiffs' attorneys in the lawsuit recently asked a judge to rule that
the school system has failed to comply with a court order issued more than
a year ago. In March 2001 Knox County Chancellor Daryl R. Fansler ordered
that the students be placed in alternative school until the school board
reformulated its zero tolerance policy to comply with state law, which
provides that students need not be totally expelled from the school system
or be expelled for a full year.

"It's clear that in cases where students have been expelled for violation
of the local board's zero tolerance policy, the Legislature has
contemplated that these cases will be considered on a case-by-case basis
for purposes of modifying the length of expulsion from regular school,"
Fansler wrote.

"It is equally abundantly clear that the Legislature contemplated that
there would be circumstances where complete expulsion from school would not
be appropriate, and the Legislature plainly stated that complete expulsion
is not mandated in every case," the judge continued.

In May, the plaintiffs asked Fansler to issue a partial summary judgment
"because the defendants have failed as a matter of law to comply with the
requirements of the order."

The lawsuit began after two freshman boys were expelled from Halls High
School for taking or possessing someone else's prescription sleeping pills.
Since then several other students and their parents have joined the
lawsuit. It was declared a class action last April.

First implemented in Knox County in 1996, zero tolerance policies sprang up
across the country after a spate school shootings. The local policy
mandates a one-year expulsion for students who bring to school a gun, knife
or other weapon or who are under the influence of or possess alcohol,
illegal drugs or unauthorized prescriptions.

Since the beginning of the 1998-99 school year, 579 students have committed
zero tolerance offenses. The vast majority of them were expelled for at
least two semesters, but not all were. Under federal law, those who are
categorized as "special education students" because of a physical, mental
or emotional difficulty cannot be expelled from school. They must be
provided alternative education.

That was the basis of the original lawsuit filed by the Knoxville Legal Aid
Society's Pro Bono Project. The children's attorneys argued that their
clients' right to a free and public education, as provided in the state and
U.S. constitution, was being violated.

After Judge Fansler's March 2001 order, the Knox County Board of Education
amended its zero tolerance policy to include that all expulsions executed
under the policy would be reviewed for placement in the alternative schools.

But since then, no zero tolerance-expelled students have been placed in
alternative schools. The plaintiffs argue that violates the judge's order.

"The defendants' review of all zero tolerance students for alternative
educational services is governed by its stated position that it has 'no
money' and 'no space' for alternative education services," the motion reads.

The motion quotes from the deposition of Walter Mencer, assistant to
Superintendent of Schools Charles Lindsey, who heads the Zero Tolerance
Committee.

Mencer explained that after a student is accused, for example, of bringing
a knife to school, the principal investigates, conducts a hearing and then
sends the file on to Mencer. The three-member committee reviews the case
and makes a recommendation to the board, which makes the final decision to
expel.

After the board made its alternative school amendment, Mencer said, the
committee "looked at how we would be able to place a student in the
alternative school." In the end, it boiled down to money. The school system
was forced to cut nearly $10 million from its budget last year.

One possibility was placing students at the evening alternative school, but
it was closed, Mencer said in his recent deposition.

"We no longer have that, so that's gone. We have no money to expand the
alternative school so there was no way, basically, with the alternative
schools being full, that we could place anybody in alternative school," he
said.

Knox County Deputy Attorney General Marty McCampbell represents the school
system in legal issues. She answered the motion for summary judgment on May 29.

The school board does not have a "constitutional or statutory duty to
provide educational services to students who have been expelled," she wrote.

"Public education is not a fundamental right under the Tennessee or U.S.
Constitution."

A hearing before Chancellor Sharon Bell - to whom the case was transferred
- - is the next step.