Student Suspension: Due Process and Equal Protection Randall Ranes, Administrator

1. Student Suspension: Due Process and Equal Protection Randall Ranes, Administrator Steve Castro, Supervisor Erin Johnston, Dean Student Services Department Bakersfield City School District October 2004

2. Presentation Goals and Objectives • Define key legal words applicable to student suspension • Define the parameters of student suspension from school • Identify the employee(s) with the authority to suspend from school • Compare and contrast suspension from school with suspension from the classroom • List and describe student suspension due process rights • Define when the school has jurisdiction to suspend a student, apply the jurisdiction authority to fact patterns, and confirm limits of jurisdictional authority • Give an overview of the grounds for suspension and how the elements of the illustrated offenses may be applied in a suspension • Describe limits (days and grade levels) on number of suspension days

3. FAIR STEPS TO REACH THE DECISION FAIR, EQUAL, AND UNIFORM DECISIONS

4. Fourteenth Amendment (U.S. Constitution) “. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens . . .; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person . . . the equal protection of the laws.” EJ

5. Student Discipline: Due Process • Public education is a student property interest; a student can legally be removed from education only with due process of law • The law requires student discipline to be implemented so every student receives equal protection EJ

6. Student Due Process A student receives due process when a fair decision has been made by the school staff in a fair, equal, uniform manner. EJ

7. Types of Due Process • Substantive due process challenges the fairness of a decision itself • Procedural due process challenges the manner in which a school makes a particular decision EJ

8. Substantive Due Process Examples • Was it fair to suspend a student for five days for backtalk? • Was a student treated differently (e.g., suspended for more days) because of gender, race, color, religion, ancestry, national origin, ethnic group, marital or parental status, physical or mental disability, sexual orientation, or the perception of one or more of such characteristics (BP 300.27 – Nondiscrimination)? • Was the penalty (e.g., 2 days of suspension) disproportionate to the overall offense? EJ

9. Procedural Due Process Examples • Were the student and parent informed (effective notice) in advance of the school rules? • Was the decision to suspend preceded by an appropriate investigation? • Was the student given the evidence against him and an opportunity to tell his side of the story before being suspended? EJ

10. Suspension Defined Removal of a student from ongoing instruction for adjustment purposes (Education Code Section 48925 [d]). Removing a child from school for disciplinary reasons for more than the remainder of the day shall be considered a suspension (Suspension, BP 601.3).

11. “Suspension" does NOT mean: • Reassignment to another education program or class at the same school where the student will receive continuing instruction for the length of day prescribed by the Board for students of the same grade level (On-campus suspension/in-school suspension) • Referral to a certificated employee designated by the principal to advise students • Removal from the class, not more than once every five school days, but without reassignment to another class or program, for the remainder of the class period without sending the student to the principal or designee as provided in Education Code Section 48910 (Suspension from class by teacher) (Education Code Section 48925)

13. How do you apply the discipline code fairly, equally, and uniformly? Start with: • Advance notice to parents and students of school rules • Effective notice • Evidence from the investigation supports the findings or determination (i.e., did or did not do it) • The determination or findings support the specific decision (e.g., suspend for 2 days)

14. Notice of Rules to Parents and Students • At the beginning of each school year, the principal shall ensure all students and parents/guardians are notified in writing of all school rules related to discipline, suspension, and expulsion (BP 601.3 - Suspension; BP 601.7 – School Discipline; BP 300.56 – Parent Notifications) • Guide for Parents and Students • Board Policy • Statutory and Case Law (Controlling, but not part of notice)

15. Who has authority to suspend? • Governing board • Superintendent • Principal or principal’s designee • Principal's designee means one or more administrators or, if there is not a second administrator at one school site, a certificated person specifically designated by the principal, in writing, to help with disciplinary procedures. Only one such person may be designated at any time as the principal's primary designee and only one such person may be designated as secondary designee for the school year. The names of such persons shall be on file in the principal's office (Education Code Section 48911)

16. Alternatives to Suspension • Suspension shall be imposed only when other means of correction fail to bring about proper conduct (Education Code Section 48900.5; statute also includes exceptions to this rule) • Whenever possible, alternatives to suspension or expulsion will be imposed against any student who is truant, tardy, or otherwise absent from school activities (Education Code Section 48900)

17. Jurisdiction for Disciplinary Action • Pupil may be suspended/expelled for committing an actlisted in the law if the act is related to school activity/attendance occurring at any district school or within any other school district, including but not limited to (Education Code Section 48900): • While on school grounds • While going to or coming from school • During the lunch period, whether on or off the school campus • During, going to, or coming from a school-sponsored activity

18. Jurisdiction Decisions: Example One FACT PATTERN: Fred and Jose are walking home after school. Fred reaches his home, finds his BB gun, and catches up with Jose, who is still on his way home. Fred shoots Jose in the arm with a BB. Which student is the focus of the jurisdictional analysis?

19. Jurisdiction Decisions: Example Two FACT PATTERN: Maria, on her way to school, stops off at her friends home. Her friend gives her some marijuana to hold while her friend finishes her grooming activities. Later, on the way to school, Maria returns the marijuana to her friend. Does the school have jurisdiction to discipline Maria?

20. Jurisdiction Decisions: Example Three FACT PATTERN: Luis does not attend school on the day he decides to get even with Jack. Close to when school is to let out, Luis walks toward the campus. About a block from the campus he locates Jack and physically attacks Jack. Jurisdiction? What if he waits for Jack at a bus stop?

21. Suspension/Due Process Checklist • Reasonable suspicion the student committed prohibited offense • Conduct an investigation with all relevant witnesses • Obtain/create physical evidence (e.g., contraband) when available

22. The “Determination” • A student may not be suspended from school or recommended for expulsion unless . . . the principal of the school in which the student is enrolled determines that the student has committed an act as defined pursuant to any of the Education Code Section 48900 et seq. (emphasis added)

23. How does one reach a determination? • Investigation produces facts (evidence) • Facts support the finding or determination the student has committed a prohibited act • Code section aligns with determination (in District, aligns with the “particulars” of the suspension)

24. Facts to Acts • Was prohibited conduct committed? • If so, what recognized offense was it? • What is a reasonable, fair, and uniform disciplinary action?

25. How many days may a student be given? • Pupils may be suspended up to five (5) days for any one instance • The number of suspension days imposed should be determined by guidelines in the district discipline code and the severity of the offense • A student may be suspended from school for not more than 20 school days in any school year, unless for purposes of adjustment a student enrolls in or is transferred to another regular school or alternative education school, in which case, suspension shall not exceed 30 days in any school year Note: The restriction on the number of days of suspension does not apply when the suspension is extended pending an expulsion (Education Code Section 48903 and 48911) (Suspension – BP 601.3) SC

26. Charges Applicable Only to Specific Grade Levels • Only students in grades 4 through 8 may be suspended and recommended for expulsion for any of the acts listed below: • Committed sexual harassment as defined in Education Code Section 212.5 (Education Code Section 48900.2) • Caused, attempted to cause, threatened to cause, or participated in an act of hate violence as defined in Education Code Section 33032.5 and Penal Code Section 422.6 (Education Code Section 48900.3) • Intentionally engaged in harassment, threats, or intimidation directed against school district personnel or students that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of school personnel or students by creating an intimidating or hostile educational environment (Education Code Section 48900.4) SC

27. In illustration, past suspensions have shown a misalignment of the discipline code to the “particulars” E.C. 48900 (k) was used for: • Disruption • Fighting • Noncompliance • Sexual battery • Caused physical injury • Obscene act • Sexual harassment • Willfully used force or violence SC

28. Suspensions have also been processed without a code entry. Law requires parents to receive written notice of suspension identifying the offense committed (EC 48900.8) (i.e., the code section) and to receive both the reasons for, and duration of, the suspension (S. v. Board of Education [1971]). SC

29. Matching the particulars in the suspension to the Education Code and Discipline Code.SC

30. FAIR STEPS TO REACH THE DECISIONFAIR, EQUAL, AND UNIFORM DECISIONS Suspensions NEED A CLEAR FACT PATTERN (EVIDENCE) EVIDENCE MUST SUPPORT FINDINGS FINDINGS MUST SUPPORT DECISION SC

31. BARKING UP THE RIGHT TREE • Fair, uniform application of the discipline code starts with full knowledge of the code • All offenses (and elements) • The meaning of each word SC

32. Resources • Appendix in Student Services Handbook (Hard copy and electronic copy) provides: • Listing of Education Code acts (legal description and citations) • Corresponding computer codes • Glossary in Student Services Handbook provides: • Definitions of legal terms SC

33. Forewarned is Forearmed: Front Loading Fairness, Equality, and Uniformity E.C. 48900 (a)(1) a.1 Caused, attempted to cause, or threatened to cause physical injury to another person [D]. • Code = 48900 (a) (1) • a.1 = District computer code for suspension • [D] = Disruptive behavior “D” SC

34. Cause means . . .Attempt means . . .Threaten means . . . Physical injury means . . . Another person means . . . SC

35. Willfully used force or violence upon the person of another, except in self-defense. Willful means . . . Used means . . . Force or violence means . . . Upon the person of another means . . . Self-defense means . . . SC

36. How are Education Code Section 48900 (a) (1) and (a) (2) different?The same? • Willful only in (a)(2) • Threat not covered in (a)(2) • Attempt: Overlap? SC

37. Mutual Consent Fight(See Supplementary Definitions) Battery Concept Assault (or attempted battery) Attack Attempted/Caused physical injury SC

38. Fact Pattern or “Particulars”: “Student Bit Another Student in Class.” Most appropriate code is? Code used: 48900(k) (Not Fighting) SC

39. Particulars: “Two Other Students Were Involved in a Fight. (Name of Student) Hit One of the Girls While the Fight Was in Progress.” Most appropriate code? Code used: 48900(k) (Fighting) SC

40. Particulars: “Kicked Another Student.” Most appropriate code? Code used: 48900(k) (Fighting) SC

41. Particulars: “Threatened a Student. Nearly Fought at Lunch Recess.” Most appropriate code? Code used: 48900(k) (Fighting) SC

42. Particulars: “Excessive Referrals. Fighting in Class. (Name of Student) Was the Aggressor. Kept Throwing Punches While Other Student Was Being Restrained.” Most appropriate code? Code used: 48900(k) (Fighting) SC

43. Particulars: “(Name of Student) Banged a Girl in the Head With a Door.” Most appropriate code? Code used: 48900(k) (Not Fighting) SC

44. Particulars: “(Name of Student) Was Threatening to Beat Up 2 Other Students.” Most appropriate code? Code used: 48900(k) (Not Fighting) SC

45. Possessed, sold, or otherwise furnished any knife, explosive, or other dangerous object. • Possess • Sell • Furnish • Any • Knife • Explosive • Dangerous object SC

46. Particulars: “(Name of Student) Was in the Bathroom With Another Boy Playing With a Knife. They Were Pretending to Stab Each Other.” Most appropriate code? Code used: Possessed, sold or otherwise furnished any knife, explosive, or other dangerous object (48900[b]) SC

47. Unlawfully Used Under the influence of* *DAR - Drug Abuse Recognition Training SC Controlled substance Alcoholic beverage Intoxicant of any kind Unlawfully possessed, used, sold, or otherwise furnished, or under the influence of, any controlled substance listed in the Health and Safety Code, an alcoholic beverage, or intoxicant of any kind.

48. Offered Arranged Negotiated Delivered Look-alike Represented Note: This offense involves the fraudulent sell of a drug look-alike Unlawfully offered, arranged, or negotiated to sell any controlled substance, an alcoholic beverage, or an intoxicant of any kind and then either sold, delivered, or otherwise furnished a “look-alike” represented as a controlled substance, alcoholic beverage, or intoxicant (emphasis added).

49. A student who simply offers to sell a look alike is not in violation. A student who possesses a look-alike or thinks he/she possesses a look-alike is not in violation. Violation only if ALL THREE - a student (1) offers/arranges/negotiates to sell (2) delivers, and (3) has represented the look-alike as a controlled substance.

50. Committed or attempted to commit robbery or extortion. • Committed • Robbery (Not stealing) • Extortion