PA School Being Sued For Suspending 7-Year-Old Student 'Armed' With A Novelty Buzzing Pen

from the there's-no-stupid-quite-like-'broad,-inflexible-policies'-stupid dept

Let’s forgo the usual preamble running down previous clashes between common sense and school weapons policies and get right to it. Here’s another example of zero tolerance and the damage done, involving a seven-year-old and his dangerous gag gift/pen.

A lawsuit filed against Hershey Elementary School (along with the Derry Township School District and Principal Joy MacKenzie) details the events that led up to seven-year-old G.B.’s four-day suspension.

On January 15, 2013, G boarded his bus “armed” with a novelty pen that emitted a small buzz when touched, and showed it to some friends. At some point during the trip to school, the bus driver noticed the pen, asked to see it and then confiscated it from G.

Three days later, the principal of Hershey Elementary, Joy MacKenzie, called G’s parents and told them their son had violated the school weapons policy. They were asked to remove him from the school immediately and then handed down a four-day suspension for his violation. At no point were G’s parents allowed to contest the decision.

Here’s the school’s extremely broad definition of “weapon.”

Weapon – the term shall include by way of example and not limitation, any poison gas, knife, cutting instrument, cutting tools, nunchaku stick, firearm, shotgun, rifle, and any other tool, instrument or implement capable of inflicting bodily injury or property damage, and shall include any item that is represented to be a weapon, that is threatened to be used as a weapon, or that has the appearance or characteristics of a weapon, such as a toy gun or water pistol.

Unless you consider a very mild shock to be “bodily injury,” there’s no way a novelty buzzing pen falls under any part of this weapons policy. I suppose it could be argued that someone could be stabbed with the pen, but that would mean the removal of every pen and pencil in the school (along with every child).

Principal MacKenzie apparently viewed the pen as a weapon and based solely on that, she has now, by virtue of this suspension, placed a seven-year-old pen wielder into the same category as actually dangerous students carrying actual weapons. The policy states that the following mandatory actions are carried out for any violations.

Violation of this policy by any student shall result in the following:

1. Immediate exclusion from class or activity.
2. Notification of the Derry Township Police Department.
3. Contact of custodial parent.
4. Immediate exclusion from the school for a ten (10) day out-of-school suspension will be imposed, whereupon a minimum of one (1) year expulsion will be recommended to the superintendent and School Board for ratification. At the discretion of the superintendent, the determination of discipline, including the immediate ten (10) day out-of-school suspension and the one (1) year expulsion, may be modified on a case-by-case basis.

Such expulsion shall be given in conformance with formal due process proceedings required by law.

Presumably, this “incident” was also reported to local law enforcement (per policy), although there seems to be no documentation included of the responding officer’s hearty laughter accompanying the sound of a phone being placed back on the cradle. (Or, failing that, the officer’s immediate visit to Hershey Elementary to detain the dangerous thug using all available [but appropriate — always appropriate] restraint methods.)

Considering the policy provides for a minimum 10-day suspension, it appears the superintendent (Joseph McFarland) overrode the minimum at his discretion, dropping it to four days. Unfortunately, his discretionary skills failed to remove the suspension entirely and ask that administration not bother him again until a student brings a real weapon to school, or at least, something resembling a real weapon.

It should be noted that the policy provides for “formal due process proceedings as required by law,” but apparently that sentence is just boilerplate the district forgot to delete before publication. According to the lawsuit, the parents were given no avenue of recourse or protest, which poses a problem for the school.

The District has arbitrarily deprived G of his state-created property interest in public schooling without due process of law on the basis of nothing but hysterical and overly-zealous application of a constitutionally-deficient school policy.

Beyond that, the lawsuit states that the policy itself is unconstitutionally vague and contrary to Pennsylvania state law.

The Weapons Policy is facially unconstitutional for vagueness under the First Amendment because it fails to define with specificity the kind of activity that is proscribed so that a student can conform his or her conduct to the Policy’s requirements. Pennsylvania criminal law requires that any potential bodily harm from an item alleged to be a weapon be “serious” as an appropriate limiting condition–a condition absent from the School District’s policy…

[T]he district applies the weapons policy to items which are incapable of inflicting bodily harm or even creating a reasonable fear in any person that such items might cause bodily harm…

The lawsuit is also seeking a permanent injunction against the district’s enforcement of this policy as well as the expungement of the violation from G’s record.

Could the school have known that this ridiculous abuse of its weapons policy would have resulted in a lawsuit? Well, anything’s possible, but I would imagine that was the furthest thing from the minds of MacKenzie and McFarland when they put their heads together and suspended a student for four days for possession of a novelty pen. Instead, the administrators pursued the “overzealous application” of an already exceedingly-broad policy. Trimming the suspension down from 10 days was likely supposed to implicitly signal that G’s offense was minor, but the reality of the situation is that it should never have gotten to this point. The school may defend its actions by stating it erred on the side of caution, but that’s a lousy, worn-out excuse. These policies are in place but there’s no reason they can’t be applied using some common sense filtering.

It’s unlikely the court will grant the permanent injunction, but maybe the dust the suit’s kicked up will push the school towards narrowing the scope of the policy and generally encouraging the administration to remember the human minds on its staff are perfectly capable of making reasonable decisions when not hampered by inflexible policies that greatly discourage discretionary decisions.

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Comments on “PA School Being Sued For Suspending 7-Year-Old Student 'Armed' With A Novelty Buzzing Pen”

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96 Comments
Ninja (profile) says:

nunchaku stick

No shit, this school has got a fan here. I’m sure we could see Master Splinter and Michelangelo roaming the corridors of that school so it only makes sense you mention nunchakus. I can only imagine Arabic elementary schools.

Weapon – the term shall include by way of example and not limitation belts loaded with bombs, portable nuclear bombs, bombs, anything that does ka-boom etc

And we are talking about goddamn elementary schools. I’m starting to think Americans are born in full tactics gear holding assault guns.

Lurker Keith says:

Re: Re:

I noted Mikey’s weapon being singled out as well. lol

Though, I did know someone when I was in 4th or 5th grade (I think he was older) who tied 2 newspapers together to make nunchaku, w/ the intent to attack someone, so there is some precedence.

I’m surprised more ninja weapons aren’t mentioned. The only bladed weapon specifically mentioned was knives. I guess they forgot about shuriken, aka throwing stars, which, technically, falls outside the “cutting instrument/ tool” designation?

egghead (profile) says:

Re: Re: Re:

So, does their definition technically cover finger-nails (note: I use mine to cut through tape on boxes)? What about my fists, head, elbow or feet? Hell, a simple ball-point pen is capable of being a very deadly weapon in my hands. Do they allow forks in the cafeteria? Also, those textbooks make quite good bludgeoning devices.

Can we just get over ourselves and finally realize that everything can be used as a ‘weapon,’ stop trying treat only the symptoms and begin focusing on the cause of attacks? I don’t know the answer, but it certainly isn’t removing the ‘weapons.’

Prashanth (profile) says:

Middle school shock phone

I remember when I was in middle school, a kid had brought a fake cell phone that gives you a mild shock if you press the only functional button on the phone. Of course, as cell phones were still kind of a new thing then, and as it was rare for a middle schooler to have a cell phone, a lot of people wanted to try it, and a lot of them fell for the trick. Nothing bad came of it, and while the teachers were annoyed (and may have temporarily confiscated the device and given him detention), he didn’t get suspended for it. I’m glad those teachers didn’t overreact like these.

Vincent Clement (profile) says:

Re: Re:

Critical thinking was replaced with policies. My son’s school board has at least 100 policies and procedures including five documents about reviewing those policies and procedures.

“Policy Development is one of the most important responsibilities of the Board of Trustees.”

It actually says that on the Board’s website. I would have thought that one of the most important responsibilities would be the freaking education of children.

Bergman (profile) says:

Re: Re:

Supposedly, a school Principal has the sort of common sense and knowledge of the rules you’d expect of a judge, so that they can make decisions wisely and exercise good judgment when called upon to do so. The training and talent required to do so is why they are paid more than the rank and file teachers.

If the Principal lacks these qualities, then that Principal is unqualified for the job and should be fired. If district policies remove the authority of the job, then they should also remove the increased pay.

TheLoot (profile) says:

I think one reason for overreactions like these is the overly-litigious way that society has gotten. The schools are afraid that if they don’t do EVERYTHING in their power to keep children safe and something happens, parents are going to sue the shit out of the school.

The irony, is of course, that those methods result in lawsuits anyways. Lose-lose, really, and everyone is to blame.

Joe Dirt says:

Re: Re:

“I think one reason for overreactions like these is the overly-litigious way that society has gotten.”

That!

It seems our modern society has forgotten that SHIT HAPPENS. It’s never anyone’s fault; there’s no such thing as an accident; everyone acts out of malice; if you have money, you’re evil; if you don’t have money, you’re a victim; if you get caught doing some criminal act, you only did it because you were beaten as a child, molested, abused, had an alcoholic/drug addict parent…. etc.

It’s never their fault and someone HAS TO PAY! They DESERVE to be compensated.

Shaun Wilson (profile) says:

“Weapon – the term shall include … cutting tools …. and shall include any item that is represented to be a weapon”

Or in other words “Weapon – the term shall include … scissors …. and shall include any item that is represented to be scissors”. It used to just be “don’t run with scissors”, now it appears you get a 10 day suspension or expulsion for simply holding scissors at any time (or anything that looks like scissors).

Anonymous Coward says:

“Unless you consider a very mild shock to be “bodily injury,” there’s no way a novelty buzzing pen falls under any part of this weapons policy.”

(emphasis mine)

Are you completely daft? It is because of statements like this that Techdirt has no credibility.

A sword, as we all know, is capable of causing bodily damage. This is indisputable: swords are sharp, pointy and designed for killing people (or chopping watermelons). Now, if you consider the well known fact that “The pen is mightier than the sword”, you will see why the school is concerned.

This is a good call on the school’s part, and another swing and a miss for Techdirt.

/it was just a joke…don’t hit me

The Real Michael says:

Well folks, the totalitarian dictatorship is here in full force.

Ohio State University just received an armored military vehicle for use on its premises. Now, what use could a university possibly have with a military vehicle such as this? Have a look.

http://www.infowars.com/ohio-state-gets-armored-fighting-vehicle-specifically-designed-for-asymmetric-warfare/

In addition, the TSA is going to put “covert surveillance” vans to work on the streets in order to conduct surveillance operations, i.e. spy on people.

http://www.infowars.com/tsa-to-roll-out-covert-surveillance-vans/

Is this the “hope and change” we can believe in?

Oblate (profile) says:

Re: Re:

Ohio State University just received an armored military vehicle for use on its premises. Now, what use could a university possibly have with a military vehicle such as this? Have a look.
They got a free MRAP, looks like a MaxxPro (from the Wikipedia page). Hilarious. I’m sure it will come in handy during frat pledge week. At least they got it for free, not that maintenance/upkeep will be free. As it seems to have no mounted weapons, the biggest danger involved is the mocking the university will receive for security theater overkill.

The Real Michael says:

Re: Re: Re: Re:

Students could always throw something on it to cover the windshields, such as paint, a tarp, or whatever else, but that’s beside the point. The idea is to desensitize the public to seeing military this-and-that operating domestically. That’s why in a recent commercial for American Express they show surveillance cameras mounted everywhere, SWAT officers and armored “police” vehicles strolling down an ordinary city block, as if it were an everyday occurrance. A few days ago there was a shooting somewhere in the tri-state area and the police locked down an entire suburban town because of it. They showed checkpoints manned by state troopers, helicopters swooping around and police/state troopers dressed in full tactical military gear, much like during the search for the Boston Bombers. Now, doesn’t that strike you funny?

Bill says:

It's only been fifteen years...

In high school I received one lunch detention for bringing a homemade mechanical pen bb gun to class.
Oh well I guess I can be glad I’m finished with that because from the looks I would have been sent to GITMO.
Now here is the kicker!! At the end of the day they gave my mechanical pen bb gun back and told me to never bring it back.

I was “am the am is for the NSA” not a goddamn terrorist I was fifteen.

Anonymous Coward says:

Weapon – the term shall include by way of example and not limitation, any poison gas( such as farts), knife, cutting instrument (such as scissors, wood saws ), cutting tools ( such as sporks, plastic cutlery ), nunchaku stick, firearm, shotgun, rifle, and any other tool, instrument or implement capable of inflicting bodily injury or property damage (such as finger nail clippers/files, boots, shoes, balls, bats, golf clubs, scarfs, shoe laces, string, yarn, glue, finger paint, popsicle sticks, hockey sticks, hockey pucks, backpacks, books, pencils, pens, erasers, feet, legs, arms, hands, fists, heads, necklaces, bracelets, earrings, test tubes, bunsen burners, keyboards, monitors, laptops, kendles, ipads, iphones, cell phones, belts, shirts, pants, blankets, plastic bags, pillows, however asses are allowed and you will find them in the front office. ), and shall include any item that is represented to be a weapon, that is threatened to be used as a weapon, or that has the appearance or characteristics of a weapon, such as a toy gun or water pistol.

Jenn says:

Re: Re:

OMG I love this, my 13yr old just got suspended for holding it, not touching anyone or giving it to friends, my husband gave it to him we had no idea it was considered a weapon. My son has NEVER been in trouble for anything ever! He’s a really good kid, and his principal used no common sense to just take it, say it’s not allowed, call us to come get it, and tell us they are not allowed. End of story! But no this principal is a ass, maybe I should sue to!!

Michael (profile) says:

My new bumper sticker idea

any poison gas, knife, cutting instrument, cutting tools, nunchaku stick, firearm, shotgun, rifle, and any other tool, instrument or implement capable of inflicting bodily injury or property damage, and shall include any item that is represented to be a weapon, that is threatened to be used as a weapon, or that has the appearance or characteristics of a weapon, such as a toy gun or water pistol don’t kill people, people kill people.

TideMan (profile) says:

Stupidity must be punished

I hope they win this lawsuit (A phrase I have never thought, spoken or written prior to this).

Why can’t school principals show a little wisdom and do the right thing just once?

If it was distracting in the classroom, then by all means confiscate it but return it at the end of the day OR send a note home to the parents saying it will be returned to them and not the child so he learns something from it. Suspension for this toy is ridiculous.

dennis deems (profile) says:

I think they are going to far in trying to prevent the weapons policy permanently from being enforced. I think claiming vagueness is overstating the case. It doesn’t really seem vague to me. Unless there’s something we’re not being told, the pen, even by virtue of its buzzing nature, doesn’t seem to come within the policy.

Rekrul says:

Re: Re:

I think they are going to far in trying to prevent the weapons policy permanently from being enforced. I think claiming vagueness is overstating the case. It doesn’t really seem vague to me.

A “weapons” policy should only refer to actual weapons. Classifying things such as water pistols as “weapons” is ridiculous.

Don’t think so? Imagine what would happen if the same zero-tolerance policy was applied outside of schools;

You and a couple friends are screwing around shooting each other with water guns when three police cars roll up, the cops jump out, draw their guns and start screaming at you to drop your weapons. You’re told to lie face down on the ground, cuffed, arrested and booked on charges of possession of a deadly weapon, assault with a deadly weapon, etc. At trial, you’re given five years in prison. All for a gun that shoots water.

Sounds ridiculous, doesn’t it? But yet for some reason, people are willing to give such ridiculous behavior a pass when it’s in a school.

teknosapien (profile) says:

these are the people that are teaching our young

It really seems to be absurd that in this day and age these are the people shaping the minds of our children.
if this was a threat to the well being of other children then this was the perfect learning vehicle for a young mind.

its really annoying that we are paying them for being morons with no common sense

Anonymous Coward says:

so what gave the bus driver the right to confiscate the pen? if he/she was so worried that it was a weapon, what weapon did he/she think it might be? if he/she thought it was a weapon, why ask to look at it? did it have to be identified as a definite weapon?
when the bus driver asked to look at ‘the weapon’, was the bus still moving or had the driver stopped? where was the bus stopped? at a normal, accepted point of student pick-up or at an undetermined spot, just to check out this aforesaid, dangerous weapon?
at what point and time did the bus driver pass this ‘dangerous weapon to a member of school staff? what was the discussion between the driver and the school official?

did they both manage to keep straight faces during this discussion or did one or both actually burst out and laugh his/her fucking nuts off??

peter02178 says:

Left vs right

If you think it’s the left causing such problem policies then it’s time to stop watching Fox. I went through this sort of crap when I was in school (although not nearly this bad) and it was the “law and order republicans” and the conservatives who gave me the most problems. Think “zero tolerance” and “war on drugs” and you get the gist of it. Regardless of politics though, it’s remarkable how little say tax-paying parents have in the policies that govern their kids’ educations.

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