Student Discipline Primer

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Kelley Baker Karen Haase Harding & Shultz kbaker@hslegalfirm.com khaase@hslegalfirm.com

< Student Discipline Act – §§ 79-254-294 (governs suspension, expulsion, emergency exclusion and mandatory reassignment of students) < Short-term suspension – exclusion from attendance in all schools in the system for up to 5 school days. < Long-term suspension – exclusion from attendance in all schools in the system for 6 to 19 school days

< Mandatory reassignment – involuntary transfer to another school in connection with disciplinary action < Expulsion – exclusion from attending all schools in the system ’ Typically for remainder of semester ’ Can be for 2 semesters ’ Can be for calendar year (firearms)

< Actions that do not require special procedures under the Act ’ Counseling of students ’ Parent conferences ’ Rearrangement of schedules ’ Keeping student after school ’ Restricting extracurricular activity ’ Requiring student to get counseling or evaluation

< Board and administration may adopt rules reasonably necessary to prevent interference with any educational function < Teachers may adopt classroom rules (must not conflict with board policy) < Rules must provide “clear notice� to students and parents

< Distribute rules to students and parents at the beginning of the year < Post rules in conspicuous places during the school year < Distribute rule changes to students and parents before implementing them

< A short-term suspension is: ’ Suspension from attendance at school for up to 5 school days ’ Suspension may include attendance at school functions at school and away from school

< Principal may impose a short-term suspension for: ’ Conduct constituting grounds for expulsion in Student Discipline Act ’ Any other violation of the school’s rules regarding behavior

< NOT limited to misbehavior on school grounds, at a school event off school grounds, or in a school vehicle < NO statutory appeal procedure to court ’ However, appeal is possible ’ Walker v. Bradley

< Principal must give the student: ’ Notice of charges ’ Explanation of evidence ’ An opportunity for student to present his or her version < Principal determines suspension is necessary to: ’ Help the student ’ Further school purposes, or ’ Prevent interference w/ school

< Parents of suspension w/in 24 hours < At time of suspension, notifies student and parents of school policy or practice on grading of makeup work

< Use of violence, force, coercion, threat, intimidation < Damage or theft of property < Causing personal injury < Extortion < Weapons < Controlled substances, imitations, alcohol

< Public indecency < Sexual assault. May expel for sexual assault off school grounds if st nd prosecutor files charges of 1 or 2 degree sexual assault < Other Illegal Activities < Repeated violation of rules < NOTE: Don’t use long-term suspension or expulsion for truancy

< Long-Term - 6 to19 school days < Expulsion - end of current semester < 2 semesters if misconduct was w/in last 10 school days of semester ’ Automatic review if expulsion goes over the summer < Modification - school district may modify or terminate at any time

< Using force to cause or attempt to cause personal injury < Knowing, intentional use, possession or transmission of dangerous weapon other than a firearm

< School must have a policy requiring calendar year expulsion for possession use, or transmission of a firearm ’ On school grounds ’ In school vehicle ’ At school sponsored activity < The superintendent or board may modify expulsion on individual basis < School must report to NDE annually

Statutorily Required Notice

< < < < < < <

Description of misbehavior Rule that was violated Summary of the evidence Recommended consequence Other applicable consequence(s) Right to request a hearing Form to request a hearing

< Description of hearing and appeal procedures < Statement of right to: ’ Inspect student’s academic and disciplinary records ’ Inspect any written statements ’ Know the names of administration’s witnesses and substance of testimony

< Student and parents have the right to: ’ A hearing if timely requested ’ Be represented at hearing ’ An impartial hearing officer ’ Cross-examine administration witnesses ’ Present own evidence ’ Appeal to board and district court

< The superintenent is limited by the hearing officer’s recommendation < A student is not expelled until: ’ Student and parents do not request a hearing within 5 days and the superintendent expels the student ’ The hearing officer recommends expulsion and the superintendent expels the student

Student Discipline Under the IDEA

< May suspend without educational services for up to 10 days in a school year (cumulative or consecutive) if the same sanction is applicable to non-disabled students < Nebraska law limits short-term suspension to five days per offense

< Prior law – Permitted expulsion unless behavior was a manifestation of the student’s disability

< New law expressly prohibits cessation of all services to students in either case < Student may be placed in an interim setting if the behavior is not a manifestation of a disability

< < < <

Findings by IEP Team IEP and placement were appropriate relative to the behavior All services were being provided consistent with the IEP Disability didn’t impair student’s ability to understand actions were wrong Disability did not impair student’s ability to control the behavior

< Student may be placed in an alternative education setting < IEP team determines the appropriate alternative education program

Must provide for the following

< Student’s participation in the general curriculum < Services to enable the student to meet the IEP goals < Services to address the behavior that caused the change in placement

< The alternative education setting will be for the duration of the period of the “expulsion” < Parent may request a due process hearing to challenge manifestation determination < The “then current placement” is the alternative education placement

< IEP team may offer a placement change subject to parent agreement < In cases of a weapon (gun or knife blade > 2.5 inches) or drug violations, IEP team may make a 45-calendar day placement in an interim alternative education setting without parent consent

< If student poses substantial likelihood of injury to himself or others, apply to special ed due process hearing officer for a 45-day interim alternative education setting placement < Then seek injunctive relief in court

< Student still gets Student Discipline Act hearing if requested < Hold hearing after manifestation hearing and after interim program has been determined

< The protections referred to above apply to students not yet identified as being in need of special education if the district had knowledge that the child was a child with a disability before misbehavior occurred

< The district is deemed to have such knowledge if: ’ Parents expressed concern that child was in need of special ed ’ Behavior or performance of child demonstrated a need for special ed ’ Teacher or other school personnel have expressed concern that child was in need of special ed

< School with the information referred to above deemed not to have knowledge if: ’ School conducted evaluation and determined child not in need of sped ’ School determined evaluation was not necessary ’ School provided appropriate notice to parents

< If school does not have knowledge of disability and an evaluation is requested

’ Must be conducted on expedited basis ’ Student remains expelled pending evaluation ’ If student is sped, then provide IEP

< Law permits schools to report disabled students’ criminal behavior to law enforcement authorities < Not a “change in placement” triggering IDEA procedural due process protections

< Justified at its inception – ’ Reasonable grounds to suspect search search will turn up evidence that the student violated law or school rules < Reasonable in scope – ’ Measures are reasonably related to search objectives and not excessively intrusive in light of student’s age, sex and the nature of the infraction.

Kelley Baker Karen Haase Harding & Shultz kbaker@hslegalfirm.com khaase@hslegalfirm.com

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