Student Discipline Primer

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 â&#x20AC;&#x153;clear noticeâ&#x20AC;? 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: â&#x20AC;&#x2122; Suspension from attendance at school for up to 5 school days â&#x20AC;&#x2122; 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 â&#x20AC;&#x2122; However, appeal is possible â&#x20AC;&#x2122; 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: Donâ&#x20AC;&#x2122;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 â&#x20AC;&#x2122; 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

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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 â&#x20AC;&#x201C; Permitted expulsion unless behavior was a manifestation of the studentâ&#x20AC;&#x2122;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

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Findings by IEP Team IEP and placement were appropriate relative to the behavior All services were being provided consistent with the IEP Disability didnâ&#x20AC;&#x2122;t impair studentâ&#x20AC;&#x2122;s ability to understand actions were wrong Disability did not impair studentâ&#x20AC;&#x2122;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

< Studentâ&#x20AC;&#x2122;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