Tuesday, October 13, 2009

Spork Puts New Twist on Old Rules/Standards Question

By Mike Dorf

A story in yesterday's NY Times highlights a new battleground for a subject that is familiar to students of jurisprudence: When should the law use rules that leave little room for discretion (and thus risk being both under- and over-inclusive relative to their background justifications) versus standards that confer discretion (which can be abused or used in a discriminatory fashion)?  The Times story concerns school policies that mandate suspensions (or expulsions) for students bringing weapons to school, including items (such as a camping tool that I am inaccurately calling a "spork" in the title of this post) that are not intended to be used as weapons.  It raises many of the relative advantages and disadvantages of rules and standards with which students of jurisprudence are familiar.

Here I'll use the controversy to illustrate a point that is in no way original but that I think is sometimes overlooked by those who generally favor rules: The fact that many norms have rule-like and standard-like features at the same time.  But first a caveat: It is easy to read the Times article and come away thinking that the zero-tolerance policies fail even as rules.  The advantage of a rule is that even though it can misfire in particular cases it nonetheless does better overall than does case-by-case discretion.  But to get an optimal rule is obviously not so easy.  Plenty of rules fail not so much because they are rules but because they are the wrong rules.  A speed limit (rather than a standard of the form "drive carefully") can be too high or too low, for example.  The Times story strongly suggests that the particular rule that resulted in a 6-year-old being sent to reform school for 45 days for bringing a camping tool for show-and-tell is just such a sub-optimal rule.

However--and this is my main point for today--the Times story also should serve as a reminder that judgment is often needed for applying a rule that is clear in some respects.  There seems to be agreement that the zero-tolerance policy makes a student's intent irrelevant.  But then there is the example of a student being sent to reform school for having a knife dropped into his lap.  Even if the rule forbids bringing a knife for show-and-tell along with bringing one to use to back up a threat of force in a lunch-money heist, it is hard to imagine that the rule does not at least require a volitional act.  Moreover, one might think that a rule that forbids knives brought for show-and-tell along with knives brought for mayhem would allow for different punishments.  Think about (what I take to be) the policy of the TSA at airport terminals:  If you have a bottle of water in your backpack, it will be confiscated; if you have C-4 explosive, you will be arrested and prosecuted (I hope).

Or consider the timeless question, what is a knife?  A rule banning weapons from school might include an illustrative list--guns, knives, nunchucks, crossbows, etc.--as well as a sub-list of, e.g., types of knives: switchblades, cleavers, machetes, etc.  But still hard cases will arise.  How about a toy plastic knife?  What about a sword in its case for a member of the school fencing team?  Etc.  As we know from the most famous example in jurisprudence--posing the question of what is a "vehicle"?--the possibility of ambiguity is always latent, even with rules that are clear in many respects.


Ross said...

Obviously this was a poorly-crafted rule. My reading is that it was written so rigidly ("regardless of intent") that it's not possible to read into it an exception for this case. In fact, it contemplates application to knives of less than three inches. From the photo, it looks like it is clearly a knife, as opposed to a sharp edge of a "spork."

A separate scenario would be, as you point out, if the knife fell into the boy's lap. Then the requirement of "possession" in the rule would be at issue, and one might reasonably conclude that he did not possess the knife within the meaning of the rule.

It seems that the purpose of such inflexible rules is to avoid preferential treatment and undesirable leniency on the part of those tasked with enforcing them. An alternative rule (without resorting to standards that some consider undesirable b/c of their mushiness) would be to trigger some formal review process if the enforcer wants to make an exception. This would shine some sunlight on the reason for the exception and would involve more than just the enforcer's gut intuitions and prejudices.

michael a. livingston said...

I think this is a good example of how nonlawyers fail to understand basic legal concepts. To say that a rule brooks no exceptions does not mean that it raises no issue of interpretation. For example, a photograph of a knife would presumably not result in expulsion, or a copy of a book with the word knife in the title. But I think that many nonlawyers honestly don't understand this: they want to demonstrate "zero tolerance" and it is easier to do this by pretending there are no interpretive questions, thereby discrediting the entire law.

Ross said...

Fair enough. I will rephrase my position in legalese: this set of facts does raise an issue of interpretation under this rule. Unfortunately the rule was poorly crafted such that it is overinclusive to reach unintended consequences in situations like this one.

Am I missing an "issue of interpretation" in this case, or was it just my use of "exception" that was objectionable?

Michael C. Dorf said...

Ross: I didn't read Michael Livingston's comment as saying you had misunderstood basic legal concepts but rather that the school authorities might have done so.

Ross said...

To further complicate things, I meant to write "doesn't" where I wrote "does" in the second line of my last post.

The joys of Internet communication!

michael a. livingston said...

Yes I meant that the school board appeared to have misunderstood. One must appreciate also the pressure school boards are under. They tend to punish poorer and minority kids disproportionately and are under enormous pressure to appear tough even (especially) when a supposedly "nice kid" is at stake

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