Ramifications of the New Student Discipline Regulations Presentation by: Stephen C. Bounds, Esq. Director of Legal & Policy Services ***** John R. Woolums,

Ramifications of the New Student Discipline Regulations

Presentation by:Stephen C. Bounds, Esq.

Director of Legal & Policy Services* * * * *John R. Woolums, Esq.

Director of Governmental RelationsMaryland Assoc. of Boards of Education

Student Discipline ChangesFor Maryland Schools

• Once upon a time…• Schools in Maryland were given local

discretion to discipline students “as warranted” to ensure school safety and uninterrupted learning (Ed. Art. § 7-305) • Appeals could be filed if school systems

acted inappropriately (Ed. Art. § 7-305)


• The State Board heard such an appeal in Atanya C. v. Dorchester BOE• Atanya C.’s 9th grade daughter, J.C.,

was in a fight that injured a teacher seeking to stop the fight• J.C. had a history of school fighting

and received a long-term suspension


• In State Board Opinion No. 09-26, in a 5-4 decision “by the barest of margins” affirmed J.C.’s long-term suspension with “the most minimal education”• The State Board in Atanya C. “put all school

systems on notice, that future expulsion-sans-education cases will be reviewed most carefully for abuse of discretion”


• The entire State Board did agree “that the issue of long-term suspension and meaningful access to education services deserves a full review” • The State Board further stated its

“intention to develop a solution to the education policy problems presented by long-term suspensions”


The State Board over the next several years established four basic principles for student discipline reform:

1. Prohibiting “zero tolerance” policies;2. Reflecting a philosophy that fosters

positive behavior;


3. Providing continuous education services to all suspended and expelled students; and

4. Holding school systems accountable for reducing and eliminating disproportionate impacts of student discipline policies on minority students


• MABE and other education advocacy entities in Maryland (and often beyond) have embraced these four principles and accountability for results• The real question is whether these are

best accomplished by local discretion accompanied by accountability or by one size fits all statewide mandates


• MSDE Staff and the State Board were assisted in all aspects of this student discipline reform process by the Open Society Institute (now Foundations), created in 1993 by Hungarian billionaire George Soros to promote human rights and social reform in education and other areas of concern


• Later the State Superintendent in May, 2013 named a School Discipline Regulation Workgroup to address some of the language concerns raised in comments; a Best Practices Workgroup to conduct a relevant literature review; and a Code of Conduct Workgroup to consider changes to the existing Code


• On June 25, 2013 the School Discipline Regulation Workgroup presented its findings and the State Board on July 23, 2013 granted permission to publish the somewhat modified COMAR • The regulations were republished on

December 13, 2013.


• After the public comment period ended on January 13, 2014, the State Board on January 28, 2014 finally adopted the new regulations• The new regulations are under

COMAR 13A.08.01.11, .12, .15 and .21


Implementation Schedule:• “By the beginning of school year 2014-

2015, each local board shall review and revise its student discipline policies and regulations with the goal of maintaining an environment of order, safety, and discipline necessary for effective learning.”


The regulations require that local board policies and regulations shall, at minimum, satisfy six criteria:

1. Reflect a philosophy fostering positive behavior;

2. Be designed to keep student connected to school;


3. Describe conduct leading to in-school and out-of-school suspension or expulsion;

4. Allow for discretion in imposing discipline;5. Address ways to meet educational and

counseling needs of excluded students; and6. Explain why extended suspensions and

expulsions are last-resort options.


• The new regulations repeal the provision that mirrored the statute’s allowance for school administrator discretion to discipline students “as warranted” under (Ed. Art. § 7-305)

• And deleted, [“In those instances when the behavior of a student is disruptive and detrimental to the operation of the school, the student may be suspended or expelled.”]


New Definitions• Suspension• Short-term suspension• Long-term suspension• Extended suspension• Expulsion

New Mandates• Education services• Behavioral support

services• Education liaisons• 10-day return to school

rule• 45-day hearing

deadline• Disproportionality

remediation plans


Suspension means the application of extended suspension, in-school suspension, short-term suspension, or long-term suspension


Short-term suspension means the removal of a student from school for up to but not more than 3 school days for disciplinary reasons by the principal


Long-term suspension means the removal of a student from school for a time period between 4 and 10 school days for disciplinary reasons by the principal


Extended suspension means the exclusion of a student from a student’s regular program for a time period between 11 and 45 days


Extended suspension is limited to circumstances in which:

• “the student has engaged in chronic and extreme disruption of the educational process that has created a substantial barrier to learning for other students across the school day”; and


Extended suspension is limited to circumstances in which:

• the duration is limited to the “shortest period practicable”; and

• the students return to school prior to the completion of the suspension period would pose an imminent threat of serious harm to other students and staff


Expulsion means the exclusion of the student from the student’s regular school program for 45 days or longer


Expulsion is limited to circumstances in which:• the duration is limited to the “shortest period

practicable”; and• the student’s return to school prior to the

completion of the expulsion would pose an imminent threat of serious harm to other students or staff


Mandated Services for Excluded Students• School systems must provide students

excluded from school in extended suspension (11 to 45 days) or expulsion (45 days or longer) with “comparable educational services” and “appropriate behavioral support services” to promote successful return to the student’s regular academic program


Minimum Education ServicesFor each student suspended or expelled out of

school, who is not placed in an alternative education program, the school system must:

• provide “minimum education services” including daily class work and assignments from each teacher, which shall be reviewed, corrected and returned to the student on a weekly basis; and


Mandated Staff LiaisonFor each student suspended or expelled out of

school, who is not placed in an alternative education program:

• Each principal must assign a staff liaison between teachers and the students and their parents to communicate weekly about class work assignments and school-related issues by phone or email with students and their parents


Minimum Education Services for Short-term Suspensions (1-3 days)

• Schools must provide students with the opportunity to complete the academic work they miss during the suspension period without penalty; and

• Provide the contact information for the staff liaison responsible for ensuring that this requirement is met

• Otherwise, the same make-up process as for other excused absences applies to short-term suspensions


10-Day Return to School Rule• If, by the 10th day of the student’s suspension,

the superintendent fails to make a decision on the principal’s request for extended suspension (11-45 days) or expulsion (longer than 45 days), the student must be returned to school unless it is determined that “the student’s return to school would pose an imminent threat of serious harm to other students or staff”


Appeals: Timelines and ProceduresThe regulations include:• a 45-day timeline and deadline for hearing

appeals, even if using a hearing examiner; and • a new requirement for school systems to share

all documents and witness lists with parents/appellants 5 days before the hearing, without any corresponding requirement for the appellants


Disproportionate Impact Analysis & Remediation• The regulations require MSDE to develop a method

to analyze whether there is a disproportionate impact on minority students, or a discrepant impact on special education students; and

• based upon MSDE’s finding of a disproportionate or discrepant impact, the local school system must prepare and present a plan to reduce the impact within one year and eliminate it within three years


• Consider the Policy and Regulation changes that school systems will need to have in place for the 2014-2015 school year starting in August

• Policy modification is a fairly complex and lengthy process in most systems

• HCPSS has 40+ Policies to change by then


Policies to consider:• Discrimination• Sexual Harassment• Bullying• Curriculum• Social Media• Student Records• Student Discipline• Alcohol and Other Drugs

Policies to consider:• Use of Tobacco Products• Weapons• Search and Seizure• Student Assault and/or

Battery• Gangs and Gang Activities• Community or Reportable

Offenses


With respect to the remaining two workgroups and reports:

The Best Practices Report is still pending (The State Board requested revisions based on concerns with theoretical rather than practical focus.)

The Code of Conduct Report has been delayed until September of 2014 (MABE testified to voice concerns about the challenge to make required policy changes w/o the Code)


What is the “Framework for a Statewide Student Discipline Plan”?

Announced in April 2014, it is MSDE’s strategic plan (Draft, not distributed) for implementing the new regulations, to include:

• Reviewing local master plans;• Conducting needs assessments;• Identifying challenges; and• Providing technical assistance.


The Framework briefing included a timeline for the State Board’s and MSDE’s student discipline-related work:

• Maryland Student Records Manual (June 23, 2014);

• Best Practices in Student Discipline (July 22, 2014);

• Positive Behavioral Intervention and Supports (PBIS) Scale Up (July 22, 2014); and

• Maryland Guidelines for a State Code of Discipline (September 23, 2014).


Maryland Guidelines for a State Code of Discipline

The 1996 “School Order and Discipline” law required the State Board of Education to:

• Establish guidelines that define a State code of discipline for all public schools with standards of conduct and consequences for violations of the standards; and assist each county board with the implementation of the guidelines.


The 1996 law required local boards to adopt regulations designed to create and maintain within the schools under its jurisdiction the atmosphere of order and discipline necessary for effective learning.

The local regulations shall provide for educational and behavioral interventions, counseling, and student and parent conferencing; and provide alternative programs, which may include in school suspension, suspension, expulsion, or other disciplinary measures that are deemed appropriate.


The 1996 “School Order and Discipline” law resulted in the 1997 “Maryland Guidelines for a State Code of Discipline”, including:

• Roles & Responsibilities• Standards of student conduct• Classification I and II behaviors• Possible ranges of interventions and consequences• Recommendations for local implementation


1997• Students• Parents and Guardians• School System

Personnel• Community and

Family Service Orgs.• Statewide Community

2014• School Staff &

Administrators• Students• Parents/Guardians• Community-based/

City/Local Orgs. & Agencies

Roles & Responsibilities


1997 Guidelines includes 2 classifications of behaviors and responses:

Class I behaviors include academic dishonesty, bullying, disrespect, insubordination, destruction of property, fighting, sexual activity

• Class I range of responses includes suspension Class II behaviors include arson, extortion,

harassment, tobacco/drug/alcohol possession, physical attack, theft, verbal or physical threat

• Class II range of responses includes police contact and expulsion


2014 Guidelines (draft) includes 5 levels of “progressive discipline” responses:

1. Classroom, support, and teacher-led2. Classroom, support, and in-school removal3. Support, in-school removal, and

administrative4. Support, removal, administrative, and out-of-

school exclusionary5. Long-term administrative, out-of-school

exclusionary, and referral


• “Removal” in Level 3 refers to in-school suspension

• Many behaviors do not proceed to Level 4; the first level allowing out-of-school responses

• Many behaviors require proof of “intent” to permit discipline

• Many extended suspension/expulsion responses, when allowed, are limited to students in grades 6-12


Up to Level 2 (excludes in-school suspension)• Class cutting, tardiness, truancy, dress code,

academic dishonesty, tobaccoUp to Level 3 (excludes out-of-school

suspension)• Disrespect, personal electronics


Up to Level 4 (excludes extended suspension or expulsion)

• Disruption, theft, destruction of property, trespassing

Up to Level 5 (includes extended suspension or expulsion)

• Sexual activity/attack, harassment, threats, drugs & alcohol, fighting, serious bodily injury, explosives, weapons, arson


Academic DishonestyIncludes plagiarizing, such as taking someone

else’s work or ideas (for students grades 6-12); forgery, such as faking a signature of a teacher or parent; or cheating

Responses: Level 1 – written apology, talk w/school counselor, detention; and Level 2 – community service, peer mediation, temporary removal from class


Non-illegal DrugsUnauthorized using/possessing of non-illegal

drugs (e.g. Rx)Level 1 to 3 (including in-school suspension;

excluding short-term out-of-school suspension)


Being under the influence of alcohol, inhalants, or illegal drugs

“Where schools feel that a student who is under the influence of or found using alcohol or substances must be removed from school grounds, schools should consider sending the student home on medical leave, rather than as a disciplinary infraction/out-of-school suspension.”


IntentFighting – Intentionally shoving, pushing, or

being physically aggressive in the context of a fight (body check, intentional bumping, but NOT horseplay)

Serious Bodily Injury – Intentionally misbehaving in such a way that unintentionally causes serious bodily injury

Theft – Intentionally taking property without the owner’s permission


Positive Behavioral Intervention and Supports (PBIS) Scale Up (July 22, 2014)

“Positive Behavioral Interventions and Support Program” means the research–based, systems approach method adopted by the State Board to build capacity among school staff to adopt and sustain the use of positive, effective practices to create learning environments where teachers can teach and students can learn.


PBIS is already mandated for:• elementary schools with a suspension rate

exceeding 10 percent of enrollment; and• Any school with a truancy rate exceeding

1 percent.(Education Art. §7–304.1)


Best Practices in Student Discipline: Policy, Practices, Professional Development (July 22, 2014)

• The draft report, distributed in February 2014, included sections on research, best practices to support pro-social behaviors, professional development, and an annotated bibliography

• A companion document included three research papers


Best Practices to support pro-social behaviors:• Multi-tiered systems of support (MTSS)• Response to Intervention (RTI)• PBIS• Safe and Supportive Schools Initiative• Continuum of Progressive Discipline• Restorative practices• Universal Design for Learning (UDL)• Social Emotional Foundations for Early Learning• National Triad Model for SROs


Maryland Student Records Manual (MSRM) (June 23, 2014)

The Manual provides “offense codes” and “disposition codes” for a statewide disciplinary data system.

Offense Codes• Health Related Exclusions

(immunizations)• Attendance Codes• Attacks, Threats, Fights• Disrespect,

Insubordination, Disruption

•Dangerous substances•Sex Offenses• Weapons• Arson, Fire, Explosives• Other (e.g., academic

dishonesty, use of telecommunications, etc.)


In 2011 the Manual was updated to ensure that disposition codes identify not only the type of disciplinary response, but also describe the type of educational services provided, if any.

The Manual provides the following “tiers” of disposition codes:

• Tier I: Out of School Short-Term Suspension – Educational Services Provided

• Tier II: Out of School Extended Suspension – Educational Services Provided, or Offered and Rejected by Parents

• Tier III: Expulsion – Educational Services Provided, Rejected, or Not Offered


The State Board is considering significant revisions to the MSRM arising from the Board’s study of the issues surrounding the enforcement of student disciplinary responses without the provision of educational services, and the concern that such actions may be taken in manner disproportionately impacting minority students and students with disabilities.


• Meanwhile on January 8, 2014 the U.S. Dept. of Justice and the U.S. Dept. of Educ. jointly issued a 31 page “Dear Colleague Letter” (DCL) on the subject of student discipline• Note that the basis for such federal

involvement is constitutionally limited to Civil Rights Act violations


• The DOJ is responsible for enforcing Title IV of the Civil Rights Act which prohibits discrimination in public elementary and secondary schools based upon race, color or national origin, among other bases


• The DOE and DOJ are responsible for enforcing Title VI of the Civil Rights Act which prohibits discrimination based upon race, color or national origin by recipients of Federal financial assistance from DOE


• Prior to the January 8, 2014 DCL all investigations by the DOE and DOJ were based upon complaints received from students, parents, and others about possible racial discrimination in student discipline


• Now in addition to investigating complaints the DOE and the DOJ state in the letter that they intend to “collaboratively and proactively” initiate Civil Rights Act “compliance reviews” nationwide focused on student discipline


• In late 2013 in the Lubbock (TX) Independent School District, the DOE Office of Civil Rights (OCR) conducted the first of its nationwide compliance reviews (not based upon a complaint) to examine the district’s Title VI compliance in minority student disciplinary action


• The new policy of conducting random compliance reviews instead of only investigating complaints is based upon the DOE’s Civil Rights Data Collection (CRDC) which was newly expanded in 2013 and showed that students of color tend to be disciplined more than their peers


• The DCL addresses the issue by stating, “In short, racial discrimination in school discipline is a real problem”• The DCL goes on to assert that

increasing racial discrimination in school discipline can contribute to the “school to prison pipeline”


• The DCL is particularly hard on School Resource Officers (SRO) and warned that schools cannot divest themselves of responsibility for discrimination by relying on SROs, as the DOE and DOJ intend to hold schools accountable for discriminatory actions by SROs


• The scope of the federal reviews will not be limited to the principal’s office and beyond; but even intends to look at the initial referral by a teacher• The DCL calls these teacher referrals,

“the subjective exercise of unguided discretion in which racial biases or stereotypes may be manifested”


• Two types of unlawful discrimination are targeted in the DCL, the first is if the student is subject to “different treatment” based upon race• The second type is when discipline is

administered in an evenhanded manner; but effects minority students in disproportionate numbers


• The letter provides multiple examples of situations that are indicative of Civil Rights Act violations including the provision of different penalties for a minority student cursing out a teacher and disrupting a class and for a majority student exhibiting a public display of affection on the school bus, provided that both are in the same Code of Conduct level


• The following may be considered in any such investigation: written policies; unwritten disciplinary practices; discipline referral forms; disaggregated school discipline data by subgroup and offense; and interviews with students and others


• An Appendix to the DCL calls for the availability of psychological testing and services for referred students• It also calls for schools to provide

sufficient school based counselors, social workers, nurses, psychologists, and other mental health providers


• The DCL Appendix likewise suggests seven separate extensive categories of training and professional development for all school personnel, including teachers, administrators, support personnel, school resource officers, and even school volunteers


• The Appendix also calls for schools to specifically train SROs in bias-free policing, implicit bias and cultural competence, age appropriate responses, restorative justice techniques, conflict resolution, and privacy issues


• Finally the Appendix requests the collection of nine broad categories of data, much of it new, and directs the monitoring and self-evaluation of the data collected for the purpose of taking responsive action to eliminate any discrimination that is discovered


• Also on January 8, 2014 the DOE separately issued a 36 page “Guiding Principles” document that likewise calls for “school-based mental health professionals”, extensive “professional development and training opportunities”, and extensive new data collection with no funding sources identified


• The “Guiding Principles” document is divided into three sections on Climate and Prevention; Clear, Appropriate, and Consistent Expectations and Consequences; and Equity and Continuous Improvement• Each section contains detailed Action

Steps and Checklists for schools to use

Documents

Ramifications of the New Student Discipline Regulations Presentation by: Stephen C. Bounds, Esq. Director of Legal & Policy Services ***** John R. Woolums,