Zero Tolerance Out of Control?

Mark Williams

Brandon Kivi's mom says CISD has gone too far.

Tuesday, September 23 started out to be just about like any normal day at Caney Creek High School, located on FM 2090 in Conroe. But everything changed, including the course of peoples' lives, when 15-year-old freshman Brandon Kivi let his girlfriend, Andra Ferguson, also 15 and a Caney Creek freshman, use his Albuterol asthma inhaler when she had problems breathing and went to the high school nurse's office. Ferguson had left her inhaler at home that day.

"The next day, they pulled him out of science class and took him to Juvenile," says Kivi's mother, Theresa Hock, who, three weeks later, is still very angered by the actions taken by the Conroe Independent School District (CISD) in the case, which was to arrest Kivi and detain him at Montgomery County Juvenile Detention, charging him with Delivery of a Dangerous Drug on School Property--a felony offense.

CISD policy also calls for mandatory expulsion of a student who commits a felony. Since Albuterol is listed by the State of Texas as a dangerous drug, Kivi found himself on the hot seat--and briefly behind bars.

"I didn't even know he had been arrested and taken down to the jail," says Hock. "I figured it out when he didn't come home and I started calling around looking for him."

While it has been widely reported that in a meeting on the matter held last Friday, October 10, Brandon Kivi was expelled from school while criminal charges were dropped, Dr. Greg Poole, principal of Caney Creek High School, says Kivi was never expelled. "The whole point of the meeting was to see that the expulsion was dropped. Then Brandon went to the media saying that he was expelled until Christmas and that's what got printed by the press. But Brandon wasn't even in the meeting, so how could he know what had been decided?”

Whatever the case, Brandon Kivi will never again set foot in Caney Creek High School, and will be home-schooled with the help of an internet study course recognized by colleges. It is ironic that this kind of trouble has found a boy like Brandon Kivi, who wants to someday be a police officer. "He's a good boy," says Theresa Hock. 

Andra Ferguson, who was not disciplined in the incident, also decided to withdraw from Caney Creek High School to be home-schooled. Of the act that got Kivi in all this hot water, Ferguson told media outlets that what Kivi did "made a big difference. It did save my life. It was a Good Samaritan act.”

As the story has grown into a national news obsession in recent days, reported and discussed on such high-profile media meccas of conservative thought as the Fox News Channel down to local radio call-in shows from coast-to-coast, Ferguson's voluntary withdrawal from Caney Creek as been seen as a show of support for Brandon Kivi.

"Look at the tape, when [Andra Ferguson] makes her statement," says Poole, inferring that it was a statement fed to Ferguson. "Her line about the Good Samaritan, that's what the media has picked up on. But there's no evidence that she was having an asthma attack when she came to the nurse's office. There were two assistants there and a registered nurse, all of whom are trained to know the signs of an asthma attack. That's not what Andra Ferguson was having that day.”

The very fact that so many media outlets from around the nation have picked up this story and reported it brings up the question of whether "zero tolerance" is a foolproof policy. 

Has "zero tolerance" backfired on our children? Is it really necessary to punish a child for a humanitarian act in the same manner you would a student who has introduced an illicit drug in a school setting?

"It's an extremely fine line," says Dr. Poole, "and it's very frustrating. People say zero tolerance takes away the decision making process. Okay, but what do you replace it with? You have to have an answer to zero tolerance before just doing away with it.”

Was zero tolerance really created to keep kids from popping an Advil or a Midol between classes? Was zero tolerance designed to bully students with legitimate medical ailments? 

"Of course not," says Dr. Poole, "but there's the other way of looking at the situation. What if Andra Ferguson had taken Brandon's medication, had a bad reaction to it, and died? Wouldn't that have been a worse outcome that what's happened?

"And where do you draw the line with other drugs? Do parents really want us to allow kids to just pass out medication as they see fit? We see this a lot. Students brings medications from home, usually they belong to the parents. There's no harm intended, but it's really not all that safe, either.”

Did the Brandon Kivi case really have to pushed so far by CISD? While state law mandates that school nurse Kathy Ogden did the right thing by reporting the incident, the bottom line is this: did CISD go too far in the pursuit of punishment in this incident?

"The really frustrating thing about this situation," says Dr. Poole, "is that our hands are somewhat tied. A violation of our drug policy occurred and it was handled through the system. Albuterol has been deemed a dangerous drug by the state and Brandon Kivi gave that drug to someone. 
"But we also recognized that the incident wasn't malicious or intended to harm anyone, and that's what I said in the meeting. That's why Brandon was never to be expelled. Theresa Hock pulled Brandon out of school before the meeting was even held or the matter discussed.”

Theresa Hock is still appearing by phone and satellite on radio and television programs across the nation, and is now coming forth with new allegations, telling The Bulletin that her daughter, Caney Creek senior Sunny Bryant, has been harrassed by Poole regarding the incident.

"I was asked to go with a friend to the counselors' office," says the 18-year-old Bryant, "but the counselor wasn't there. Dr. Poole came in and said he wanted to talk to me, so we went into his office. He asked me about Brandon and I told him he was doing home school now and [Poole] said good, because that's where he belongs.
"He said 'You have six months left, right?' and I said right and he said that he'd had to talk to the press about this thing with Brandon, and how he would be dragged down by it and he didn't have to respect me. And I was, like, whatever.”

Dr. Poole groans when told of the accusations. "That is just so incredibly not true," says the principal. "I know Sunny, I used to be her teacher. I've seen her once since all this happened, out in the hallway, and all I told her was that Brandon is welcome to come back and resume classes anytime.”

Theresa Hock says that her next move will likely be to file a lawsuit against CISD over the incident. "There was no need to drag [Sunny] into this," says Hock of the alleged harrassment of Sunny Bryant, who, Hock says, has also had to endure the teasing of fellow classmates.

"I really don't think the students here are talking about this all that much," says Dr. Poole, "and I'm not real sure how many of them know that Sunny is Brandon's sister. Whatever Theresa Hock is saying now, whatever accusations she has to make, frankly, it's because her 15 minutes are almost over. And this must be her way of keeping the story going, because, as far as we're concerned, the incident is closed.”

But Theresa Hock says things are just getting warmed up, as she has been approached by Ron Rissler, an attorney with the Rutherford Institute, a non-profit civil liberties organization that provides free legal services to people, according to their mission statement, "whose constitutional and human rights have been threatened or violated". 

The Rutherford Institute, headquartered in Charlottesville, Virginia, is recognized as one of the nation's leading advocates of civil liberties and human rights, "litigating in the courts and educating the public on a wide spectrum of issues affecting individual freedom in the United States and around the world".

While some may dismiss the Rutherford Institute as a bleeding heart branch of the liberal ACLU, take note: in recent months, lawyers for the organization were involved in some very interesting cases. 

The Rutherford Institute defended the rights of students in Virginia to display Confederate flags on their vehicle, and saw to it that a high school senior in Wisconsin was permitted to exercise her rights to free speech and expression by singing a religious song at her school's graduation ceremony.

Attorneys for the Rutherford Institute also successfully reached a settlement on behalf of a woman in Bayville, New Jersey, who was unlawfully prohibited by county officials from handing out religious material in a public park.

"Robert Rissler has worked on a lot of cases that have gone all the way to the Supreme Court," says Theresa Hock, "and he says this could very well be one of those cases.”

But Greg Poole wonders if Theresa Hock has a proverbial leg on which to stand. "I'd say to [The Bulletin] or to any attorney working her case, give her a polygraph test. Ask her to take one. See what she'd say.”

"This thing has really made Brandon a wreck," says Theresa Hock, "and he feels really bad, like he really is a criminal and did something wrong. It's been hard on his self-esteem. He can never go back to that school again, and even if he did, they won't let him, no matter what they say in public.”

Adds Hock: "I just hope Dr. Poole and that nurse lose their jobs. They keep changing their stories. They say Brandon wasn't arrested or expelled until Christmas, but it isn't true.”

"What's really frustrating is that no one seems to ask about the (CISD) police department part in this," says Poole. "The media has painted it like they were carrying out some administrative decree, but I can tell you that's hardly the case.” A representative for CISD Police Chief Bill Harness returned The Bulletin’s phone calls regarding Brandon Kivi, but could not comment specifically on any aspect of the case without the permission of Superintendent Don Stockton, who could not be reached.

At the core of it all, Poole says of Brandon Kivi that he "likes to play doctor and give out medicine. There's a lot of people like that, and that's okay, but we can't have it at school, because we just have to draw a line somewhere.”

"The school district just can't boss everyone around and keep lying about it," says Hock. "They've made a big mistake.”

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