This week, the Escambia County School Board agreed to reconsider its zero tolerance policy in the wake of public and media outcry against its current zero "common sense" policy. The imposition of the zero tolerance policy became a national embarrassment to the Escambia County School District this fall when expulsion from Pensacola High School was recommended for honor student Teresa Elenz after she found a bag of pills on campus. (To read more about Ms. Elenz’s case, click here).

The Center for Individual Freedom worked with Ms. Elenz, her family and local counsel to successfully defeat the recommended expulsion. An independent hearing officer recommended, and the school board agreed, that expulsion was not justified and found that 10 days suspension — which actually stretched to a month — coupled with the mental anguish endured by Ms. Elenz throughout the turmoil was sufficient penalty.

Ms. Elenz continues to endure collateral consequences in what is one of the most recent and most egregious examples of how innocent children are being punished by zero tolerance policies that show no compassion, no thought, no justice and no flexibility. Ms. Elenz has already received notice that her driving privileges are at risk — because forced suspension is categorized as unexcused absence. Worse yet, included in her school record is a form discipline summary that contains an offensive and misleading cursory notation of a 10-day out-of-school suspension for drugs/non-alcohol, with no explanation of the extraordinary circumstances.

Obviously, a legitimate possibility of irreparable harm exists for Ms. Elenz if the disciplinary action remains on her record since her college applications will be tarnished and her likelihood of being accepted could be diminished. Undoubtedly, the continuing nature of the sanctions could interfere with her later opportunities for higher education, scholarship eligibility and employment.

The Center continues to support efforts to clear Ms. Elenz’s name and school record. A response to the family’s request for a change in the record is expected soon from the school superintendent.

Meanwhile, School Board member Gary Bergosh has suggested adding a "safe harbor" policy to the School District’s Rights and Responsibilities handbook. The safe harbor would permit students who turn in drugs to a faculty member might do so without fear of expulsion. Mr. Bergosh will work with the Board attorney to draft proposed changes to the policy.

Board member Elmer Jenkins, referencing the School Board’s lenient drug policy as applied to its contract employees, specifically teachers, questioned whether the policy for students should be changed to consider each drug violation on a case-by-case basis. Mr. Jenkins called for "a common sense approach," a decidedly uncommon thought, it seems, among those who govern our schools.

The Center (cautiously) supports School Board efforts to mitigate its intolerant zero tolerance policy. A just policy will require that circumstances and motivations surrounding a student’s infraction, as well as the accused’s age, history and prior disciplinary record, be considered.

The policy also must pass constitutional muster. The imposition of punishment must fit the crime. Any notation on a school record must recognize a student’s liberty interest in protecting her "good name, reputation, honor or integrity" under the Due Process Clause. Just as a zero tolerance policy is vulnerable to due process challenges, so too is any automatic disciplinary coding decision.

Some think that just because Teresa Elenz is back in school she has won. That is not the case. One battle may have been won, but the war against zero tolerance policies continues.