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School Suspensions

School Suspensions. Michael Rivard School Law / EDAD 620 Fall 2010. Terms to Understand. Suspension: Legal form of discipline for violations of school or district policy.

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School Suspensions

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  1. School Suspensions Michael Rivard School Law / EDAD 620 Fall 2010

  2. Terms to Understand • Suspension: Legal form of discipline for violations of school or district policy. • Substantive Due Process: Entitled to fair procedure when deprived of life/liberty/property AND there is justifiable basis for the deprivation. • Due Process Clause of Fifth Amendment: Designed to prohibit arbitrary and capricious actions by school officials as they lead schools • Vagueness Doctrine from the Fourteenth Amendment: Fundamental fairness – student should not be penalized for behavior that they could not reasonably understand to be prohibited. • Presumption Standard: Places restrictions on the power of the state to deprive one of liberty or property without sufficient factual evidence.

  3. State of Minnesota Definitions • Suspension: An action by the school administration, under rules promulgated by the school board, prohibiting a pupil from attending school for a period of no more than ten school days. • If a suspension is longer than five days, the suspending administrator must provide the superintendent with a reason for the longer suspension.

  4. 121A.46 Suspension Procedures • Subdivision 1. Informal administrative conference before suspension. The school administration shall not suspend a pupil from school without an informal administrative conference with the pupil. • The informal administrative conference shall take place before the suspension, except where it appears that the pupil will create an immediate and substantial danger to self or to surrounding persons or property, in which case the conference shall take place as soon as practicable following the suspension. • Subd. 2. Administrator notifies pupil of grounds for suspension. At the informal administrative conference, a school administrator shall notify the pupil of the grounds for the suspension, provide an explanation of the evidence the authorities have, and the pupil may present the pupil's version of the facts.

  5. 121A.46 Suspension procedures (2) • Subd. 3. Written notice of grounds for suspension. A written notice containing the grounds for suspension, a brief statement of the facts, a description of the testimony, a readmission plan (if necessary), and a copy Pupils Fair Dismissal Act, shall be personally served upon the pupilat or before the time the suspension is to take effect, and upon the pupil's parent or guardian by mail within 48 hours of the conference. • The district shall make reasonable efforts to notify the parents of the suspension by telephone as soon as possible following suspension. • In the event a pupil is suspended without an informal administrative conference on the grounds that the pupil will create an immediate and substantial danger to surrounding persons or property, the written notice shall be served upon the pupil and the pupil's parent or guardian within 48 hours of the suspension. Service by mail is complete upon mailing.

  6. 121A.46 Suspension procedures (3) Subd. 4. Suspension pending expulsion or exclusion. Notwithstanding the provisions of subdivisions 1 and 3, the pupil may be suspended pending the school board's decision in the expulsion or exclusion hearing; provided that alternative educational services are implemented to the extent that suspension exceeds five days.

  7. Special Education Rules • Out of School Suspension for FEWER THAN FIVE Days (Provided total for the year hasn’t exceeded 10 days) • No follow procedures NECESSARY (but IEP Team may meet based on requests of the members and/or circumstances relating to suspension) • Manifestation Determination, FBA, and subsequent BIP may occur • Out of School Suspension for FIVE or MORE Days • Manifestation Determination Meeting must Take place • Out of School Suspension bringing TOTAL to more than TEN Days in a School Year • Manifestation Determination Meeting • IEP Team Meeting, Change of Placement, Expulsion (Weapons/Drugs/Serious Bodily Harm)

  8. National Statistics Suspensions by the Numbers2002 - 2006

  9. State of Minnesota - 2008Categorical Data for SY08 Statewide Out-of-School Suspensions and Removals for Portions of a School Day

  10. Applicable Federal Cases • In re Gault, 387 U.S. 1 (1967): In an 8-1 decision the United States Supreme Court ruled that Gault’s commitment to the State Industrial School was a clear violation of the 14th Amendment, since he had been denied the right to an attorney, had not been formally notified of the charges against him, had not been informed of his right against self-incrimination, and had no opportunity to confront his accusers. • Goss v. Lopez, 419 U.S. 565 (1975) was a United States Supreme Court case that held that a public school must conduct a hearing before subjecting a student to suspension. The Court held that a suspension without a hearing violated the due process clause of the Fourteenth Amendment to the United States Constitution.

  11. State of Minnesota - Facts of the Case • On January 3, 1995, a teacher overheard the other students joking with E.R.D. about the possibility of being "jumped" (assaulted) because of new jacket. • E.R.D. then explained to the others that he had brought a knife to school and would use it if he needed to protect himself. Teacher reported and student brought to program manager. • The program manager at the school, Ken Johnson, met with E.R.D., who admitted owning the knife found in his jacket. E.R.D. stated that he carried the knife after school hours, because he was concerned about his safety. He claimed he had forgotten to remove the knife before coming to school. Johnson immediately suspended E.R.D. from school for five days and reported the incident to Officer Ann Whitson.

  12. In Juvenile Court … • On February 2, 1995, the county filed a petition for delinquency, alleging that E.R.D. was in possession of a dangerous weapon on school property. • E.R.D. moved to dismiss the petition for lack of probable cause and on grounds the statute is vague and does not require intent of the accused to commit a crime. E.R.D. also sought dismissal based on double jeopardy grounds. • The trial court denied E.R.D.'s motion to dismiss. • The court adjudicated E.R.D. delinquent, transferred legal custody of E.R.D. to the county welfare board for placement in a 45-60 day correctional program. • E.R.D. then brought this appeal, challenging his adjudication only on double jeopardy grounds.

  13. MN Court of Appeals Hears the Case… • Apply the Halpertest: Any sanction that only serves the goals of deterrence and retribution, and cannot be described as remedial, is "punishment" under Halper. In our view, this test permits the imposition of a civil sanction that can be "fairly characterized" as remedial, but also may deter or punish the offender. • E.R.D. argues that the suspension here is not sufficiently related to any remedial purpose, but instead was intended only to serve purposes of punishment and deterrence. He contends, without citing legal authority, that the school's sanction must be "narrowly tailored" to serve a remedial purpose.

  14. State of MN Appeals Court Decision • In the Matter of the Welfare of: E.R.D., Child. Filed July 2, 1996Affirmed • A school's suspension of a student for misconduct that falls within the statutory grounds for dismissal from school does not bar subsequent juvenile prosecution for the same conduct under double jeopardy principles. • Such suspension can fairly be characterized as serving remedial goals of safety, institutional order, and/or protection of the rights of other students to an education. A disciplinary sanction is remedial and does not involve double jeopardy if it is "rationally related to the remedial goal.

  15. Common Questions • Question: Do school districts need to send/provide a copy of the PFDA Act to students and parents/guardians when a student is suspended or expelled/excluded from school? • Answer: Yes. A copy of the Pupil Fair Dismissal Act (Minn. Stat. Sections 121A.0-121A.56) must be provided to a student and the student's parent or guardian when a student is suspended from school or when a district proposes to expel or exclude a student from school. • Qestion : Do I need to include the specific number of days a student will be suspended in the Notice of Suspension? • Answer: Yes. The suspension notice must state that the suspension is for a specific number of days. • Question: What is the maximum length that a student can be suspended for one disciplinary incident? • Answer: Ten school days. If the district is in the process of initiating an expulsion, school administration may, with notice to the student and parent, extend the suspension to a total of 15 school days (Minn. Stat. § 121A.40, subd. 10).

  16. More Q and A • Question: Does the PFDA require school districts to decide whether or not they are proceeding with an out of school suspension or expulsion/exclusion within a specific number of days of a particular incident? • Answer: No. The PFDA does not set a limit on the number of days that can elapse between the date of the incident and the decision to suspension or expel/exclude a student. Once the decision is made, the school district must have held an informal administrative conference, or as soon as practicable following the suspension if it appears the student will create an immediate and substantial danger to self or to surrounding persons or property. • Question: What must be included in the notice of suspension? • Answer: The written notice of suspension must contain the grounds for suspension, a brief statement of the facts, a description of the testimony, a readmission plan if applicable, and a copy of the PFDA (Minn. Stat. Sections 121A.40-121A.56).

  17. Scenerio • Joey Williams, an eighth grade student, has a history of misbehavior in your school. You finally reach your level of tolerance and suspend him for FIVE Days.

  18. 1. What type of due process is Joey entitled to? • All Students … Informal administrative conference Grounds for the suspension, Provide an explanation of the evidence the authorities have Pupil may present the pupil's version of the facts Written notice of grounds for suspension. A written notice containing the grounds for suspension, a brief statement of the facts, a description of the testimony, a readmission plan, and a copy of Pupil Fair Dismissal Act (Minn. Stat. Sections 121A.0-121A.56)

  19. Administrative Implications • Problem Solving Team Referral – Response to Interention • Special Education Team – Evaluation Referral • Parent Communication – having gone to Five Days • Staff Relationships – went to five days quickly or was too tolerant of previous behaviors

  20. Bibliography • Planty, M., Hussar, W., Snyder, T., Kena, G., KewalRamani, A., Kemp, J., Bianco, K., Dinkes, R. (2009). The Condition of Education 2009 (NCES 2009-081). National Center for Education Statistics, Institute of Education Sciences, U.S. Department of Education. Washington, DC. • STATE OF MINNESOTA IN COURT OF APPEALS C0-95-2223. In the Matter of the Welfare of: E.R.D., Child. Filed July 2, 1996. Affirmed. Norton, Judge http://www.lawlibrary.state.mn.us/archive/ctappub/9607/c0952223.htm • http://www.pacer.org/discguide.html

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