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.