Ask Matt - October 2011 – Student Dress Codes and Employee Misconduct

1. Ask Matt - October 2011 – Student Dress Codes and Employee Misconduct Matt Carver, J.D., Director of Legal Services tel - 515.267.1115 fax - 515.267.1066

2. Student Dress Codes • Iowa Code §279.58. School dress code policies • 1. The general assembly finds and declares that the students and the administrative and instructional staffs of Iowa's public schools have the right to be safe and secure at school. Gang-related apparel worn at school draws attention away from the school's learning environment and directs it toward thoughts or expressions of violence, bigotry, hate, and abuse. • 2. The board of directors of a school district may adopt, for the district or for an individual school within the district, a dress code policy that prohibits students from wearing gang-related or other specific apparel if the board determines that the policy is necessary for the health, safety, or positive educational environment of students and staff in the school environment or for the appropriate discipline and operation of the school. Adoption and enforcement of a dress code policy is not a violation of section 280.22.

3. Student Dress Codes • As the DE has again clarified in the Waterloo dress code decision, school districts may have proscriptive, but not prescriptive dress codes. • Proscriptive = Student may not wear certain things or clothes in a certain way. • Prescriptive (not allowed) = Student must wear certain items.

4. Student Dress Codes • Questions to consider: • 1. Is the dress code approved by the school board and/or distributed to students and guardians? • 2. Is the prohibited attire gang-related? (The code specifically provides for such restriction.) • 3. Is the dress code provision necessary for the health, safety, or positive educational environment of students and staff in the school environment or for the appropriate discipline and operation of the school?

5. Student Dress Codes • Examples of potentially prohibited attire: • Clothing that creates a health or safety concern. (e.g., loose clothing in shop class, spiked bracelets and collars) • Clothing that disrupts the school environment • Clothing that includes a message • Schools may decide to only allow school logos or company logos. • If clothing with messages are allowed, ensure that you do not unknowingly participate in viewpoint discrimination by preventing the wear of an unpopular message but permit the wearing of other messages. • Schools do not have to permit the wearing of clothing that may be seen as encouraging students to participate in illegal behavior (e.g., beer company shirts, shirts that relate to drugs).

6. Student Dress Codes • Ensure that policies are written in a gender-neutral fashion (e.g., the same standards should be used for the length or cut of a shirt or shorts, regardless of sex) • What about the “I heart boobies” bracelets?

7. Employee Misconduct • Education Appropriations – HF 645 • School Employee Misconduct – Allows the BoEE to discipline an administrator for failure to file a complaint against an employee who is terminated or resigns due to an incident of alleged or actual misconduct. • The discipline may include the BoEE’s revocation of the administrator’s license. • Superintendents and AEA Chief Administrators - the obligation to make the report of misconduct to the BoEE is placed upon you and your board of directors. • Remember, the definition of MISCONDUCT is very specific.

8. Employee Misconduct • Education Appropriations – HF 645 (cont.) • School Employee Misconduct – • The bill requires a school board to put an employee on administrative leave if s/he is the subject of an investigation of alleged abuse of a student under Chapter 102. Ensure Level 1 investigator acts quickly. • If the result of the Chapter 102 investigation is that the actions of the employee constituted a crime under any other statute, the board of directors or authorities shall report the results of the investigation to the BoEE. • The BoEE will develop a curriculum that addresses the code of professional conduct, as well as provide regional training opportunities, annually.

9. Employee Misconduct • The following amendment is proposed. • Adopt the following new subrules 281 Iowa Administrative Code 102.5(5) and 102.5(6): • 102.5(5) Place on administrative leave a school employee who is the subject of an investigation of an alleged incident of physical or sexual abuse under this chapter, once the Level One investigator has determined that the written complaint is investigable under rule 281—102.3(280). [emphasis added] • 102.5(6) Report the results to the board of educational examiners of an investigation that finds that the school employee’s conduct constitutes a crime.

10. Employee Misconduct • To be investigable, the complaint must satisfy the jurisdictional requirements under 281 IAC 102.3. • 281-102.3 states: “To constitute a violation of these rules, acts of the school employee must be alleged to have occurred on school grounds, on school time, on a school-sponsored activity, or in a school-related context. To be investigable, the written report must include basic information showing that the student allegedly abused is or was a student at the time of the incident, that the alleged act of the school employee resulted in injury or otherwise meets the definition of abuse in these rules, and that the person responsible for the act is currently a school employee.”

11. Employee Misconduct • Questions to ask: • Did the alleged act of abuse occur: (1) on school grounds; (2) on a school-sponsored activity; or (3) in a school-related context? • Is there evidence of a physical injury 24 hours after the alleged event? • Did the employee allegedly sexually abuse the student? • If the answer to all of these questions is “no,” then it is unlikely that the matter is investigable, and the employee DOES NOT have to be placed on leave. Of course, you may still choose to place the employee on leave.

12. Employee Misconduct • Common causes of employee misconduct: • 1. Inadequate training on how to assist students with behavioral disorders. • 2. Employee losing his/her temper at the end of the day. • 3. Employee becoming too informal with teenage students.

13. Questions ???????