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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  1. identicon
    Anonymous Coward, 27 Sep 2013 @ 7:02am

    Wonder what would have happened to me with my disappearing bikini/naked lady pen?

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