Legal Update g pfor ESU 4 Principals

Karen HaaseH di & Sh ltHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase

Student Discipline

Primer

Definitions

Definitions Student Discipline Act – §§ 79-254-294

( i l i(governs suspension, expulsion, emergency exclusion and mandatory reassignment of students)

Short-term suspension – exclusion pfrom attendance in all schools in the system for up to 5 school days.system for up to 5 school days.

Long-term suspension – exclusion from attendance in all schools in the systemattendance in all schools in the system for 6 to 19 school days

Definitions Mandatory reassignment – involuntary

t f t th h l i titransfer to another school in connection with disciplinary action

Expulsion – exclusion from attending all schools in the system y• Typically for remainder of semester• Can be for 2 semestersCan be for 2 semesters• Can be for calendar year (firearms)

Minor Problems

Minor Discipline Actions that do not require special

d d th A t ( d)procedures under the Act (reg. ed)• Counseling of students• Parent conferences• Rearrangement of schedulesg• Keeping student after school• Restricting extracurricular activityRestricting extracurricular activity

(check board policy!!)• Requiring student to get counseling• Requiring student to get counseling

or evaluation

The Rules

Adopting School Rules Board and administration may adopt

rules reasonably necessary to prevent interference with any educationalinterference with any educational function

Teachers may adopt classroom rules Teachers may adopt classroom rules (must not conflict with board policy)R l t id “ l ti ” t Rules must provide “clear notice” to students and parents

Distributing School Rules

Distribute rules to students and parents at the beginning of the year

Post rules in conspicuous places Post rules in conspicuous places during the school year

Distrib te r le changes to st dents Distribute rule changes to students and parents before implementing them

Short-Term Suspension

Short-Term Suspensionp

A short-term suspension is: A short term suspension is:• Suspension from attendance at

h l f t 5 h l dschool for up to 5 school days• Suspension may include p y

attendance at school functions at school and away from schoolat school and away from school

Basis for Short Term

Principal may impose a short term Principal may impose a short-term suspension for:• Conduct constituting grounds for

expulsion in Student Discipline Actexpulsion in Student Discipline Act• Any other violation of the

school’s rules regarding behavior

What Short-Term is Not NOT limited to misbehavior on school

grounds, at a school event off school grounds, or in a school vehiclegrounds, or in a school vehicle

NO statutory appeal procedure to court• However appeal is possible• However, appeal is possible• Walker v. Bradley

Principal InvestigatesPrincipal must give the student:

• Notice of charges• Notice of charges• Explanation of evidence• An opportunity for student to present

his or her versionPrincipal determines suspension is

necessary to:necessary to:• Help the student

F th h l• Further school purposes, or• Prevent interference w/ school

Principal NotifiesPrincipal Notifies

Parents of suspension w/in 24 hoursAt time of suspension, notifiesAt time of suspension, notifies

student and parents of school policy ti di f kor practice on grading of makeup

work

Basis forBasis for Long-TermLong-Term

Suspension or pExpulsion

Basis for Long-Term S i E l iSuspension or ExpulsionUse of violence, force, coercion, , , ,

threat, intimidationD th ft f tDamage or theft of propertyCausing personal injuryCausing personal injury ExtortionWeaponsC t ll d b t i it tiControlled substances, imitations,

alcohol

Basis for Long-Term S i E l iSuspension or ExpulsionPublic indecencyPublic indecency Sexual assault. May expel for y p

sexual assault off school grounds if prosecutor files charges of 1st orprosecutor files charges of 1st or 2nd degree sexual assault Bullying Oth Ill l A ti itiOther Illegal Activities

Basis for Long-Term S i E l iSuspension or ExpulsionRepeated violation of rulesRepeated violation of rules NOTE: Don’t use long-term g

suspension or expulsion for truancytruancy

DurationLong-Term - 6 to19 school daysExpulsion - end of current

semestersemester2 semesters if misconduct was

w/in last 10 school days of tsemester

Modification - school district mayModification - school district may modify or terminate at any time

Basis for Two-Semester• Using force to cause or g

attempt to cause personal injuryinjury• Knowing, intentional use, g, ,

possession or transmission of dangerous weaponof dangerous weapon other than a firearm”• Automatic review over

summer

Firearm Offenses

FirearmsPolicy must require calendar year

expulsion for possession use orexpulsion for possession use, or transmission of a firearmThe superintendent or board may

modify expulsion on individualmodify expulsion on individual basisSchool must report to NDE

annuallyannually

Notice and Procedural Requirements for Long-

Term Suspension or Expulsion

Notice to Student &ParentsStatutorily Required Notice:

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

Notice to Student &Parents Description of hearing & appeal

dprocedures Statement of right to: Statement of right to:

• Inspect student’s academic and di i li ddisciplinary records

• Inspect any written statementsp y• Know the names of

administration’s witnesses and substance of testimony

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

When is student expelled? The superintenent is limited by the

h i ffi ’ d tihearing officer’s recommendation A student is not expelled until: A student is not expelled until:• Student and parents do not request a

hearing within 5 days and the superintendent expels the studentsupe te de t e pe s t e stude t• The hearing officer recommends

expulsion and the superintendent expels the student

I thought I worked at a gSchool, Not a Circus. . .

(Review of presentation Karen made last year to office staff)y )

CustodyCustody DisputesDisputes

Custody Disputes: Stay Out of it!

►Refuse to offer opinions►Decline interviews with attorneys►Decline interviews with attorneys►Refuse service of subpoenas during

school time►Consider motion to quash►Consider motion to quash► Strictly observe FERPA

Custody Disputes: If you’re in it

• Stick to your expertise–As a staff member–Not a psychologist/social worker

Non-Custodial Parents and Special Education

►IDEA gives rights to parents, foster parents in loco parentisfoster parents, in loco parentis

►Navin v. Park Ridge Sch. Dist. 64, 270 F.3d 1147 (7th Cir. 2001)

Release of ChildrenRelease of Children

Everyone ythinks he’s a

lawyerlawyer

Release of ChildrenRelease of Children►FERPA: Non custodial parents have same►FERPA: Non-custodial parents have same

rights as custodial►U l th i id f l ll bi di►Unless there is evidence of a legally binding

document that specifically revokes rights. (34 C F R 99 4)C.F.R. 99.4)

►Pauley v. Anchorage Sch. Dist., 31 P.3d 1284 (Al 2001)1284 (Ala. 2001)

Practical AdvicePractical Advice►Politely decline to►Politely decline to

accept copies of di ddivorce decrees, custody agreements, etc, etc.

►Release to bio parents pand their designees

► Call the cops if► Call the cops if concerned

What’s in a Name?What s in a Name?

Special Education and Student Discipline

Procedural Protection ith t V ifi tiwithout Verification

• District has imputed knowledge if:st ct as puted ow edge :– Parents have requested evaluation– Parents have expressed concern to the– Parents have expressed concern to the

district that child special education–Child’s behavior demonstrates need for–Child s behavior demonstrates need for

services– District personnel have expressed concern– District personnel have expressed concern

about child’s behavior or performance in accordance with the district's special cco d ce w e d s c s speceducation referral system.

Request for evaluation after misconduct

• District has no imputed knowledge of disabilityof disability• School may determine

hild’ l tchild’s placement pending results of the p gevaluation and, if necessary manifestationnecessary, manifestation determination

Responding to Subpoenas