STUDENT DISCIPLINEEXPULSION AND SUSPENSIONLITIGATION AND CIVIL RIGHTS

November 15, 2012

Shelley L. Stangler Esq.

Introduction

Students must comply with established policies governing school conductThis includes special needs children subject to certain protections:

N.J.S.A 18A:37-1,2 – Authority to disciplineN.J.S.A 6A:16-7.1-7.6 – Suspension/expulsion/due processN.J.S.A 6A:3-1.1 Administrative Appeal

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General Concepts Discipline must bear a rational relation to a legitimate state objective

Palmer v. Merzulli, 868 F.2d 90 (3rd Cir. 1989) Arbitrary & Capricious standard of reviewThere are parameters for length of suspension

N.J.S.A. 18A:37-5N.J.A.C. 6A:16-7.3

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General Concepts 2Due Process Rights vary and depend on the discipline and the nature of the schoolPublic/PrivateShort or long term suspension or expulsionAcademic misconduct

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DisciplineDoes the conduct fall within one of the categories of suspension defined in the statute N.J.S.A. 18A:37-2?Does the conduct constitute a continuing danger or pose a threat to the physical well being of other pupils or staff?Does the discipline promote a legitimate policy objective? Does the conduct materially or substantially interfere with the operation of the school?

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Discipline (2)

Is the discipline necessary to maintain orderly conduct of the school?

R.R. Bd. of Ed., 109 N.J. Super 337 (1970) Is there sufficient notice from the Code of Student Conduct that the conduct is subject to discipline and the consequences that will result from the conduct?Off School Conduct is subject to discipline if it impacts the operations of the school and is reasonably necessary for safety

N.J.A.C. 6A:16-7.6

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Discipline 3

Discipline objectives in a school are not consonant with criminal statutesCriminal Law differs in objectives and goals and the school cannot use criminal charges as a measure or means upon which to impose discipline

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Code of Student Conduct

Notice of disciplineNotice of what conduct will result in what disciplineBehavioral expectationsAnnual reports to the state DOE requiredSummary of number of violations and action taken

N.J.A.C. 6A:16-7.1

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Code of Student Conduct (2)

Description of student responsibility / expectationsDescription of behaviors resulting in suspensionsStudent’s rightsAttendance policies and proceduresPolicies related to harrassment, intimidation and bullying

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The Right to a Public Education is Constitutionally Protected

A protected Property Right under the 14th AmendmentRight to a Thorough and Efficient EducationDue Process requiredExtracurricular Activities including the right to attend Graduation Exercises is NOT constitutionally protected; A privilege not a right

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Short Term Suspension

Less than 10 school daysServices must be provided after 5 days

Includes Special Needs studentsDue Process required

N.J.A.C. 6A:16-7.2,3

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Short Term Suspension (2)Due Process requires informal hearing only

No right to counselNo right to confront witnessesMust be held before suspension occursStudent allowed opportunity to present their side of the storyCan be conducted by school administrator or designeeStudent may be immediately removed if presents threat or danger

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Short Term Suspension (3)Right to notice of penalties for specific misconductWhat behavior is expected of the studentComparable educational services to be provided within 5 daysConsistent with IEPMay deny participation in extracurricular activities/graduation exercise

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Long Term SuspensionMore than 10 school daysMust notify student prior to removalMust notify parentMust provide written notice to parent within 2 days of suspensionNotice of charges with specificity

N.J.A.C. 6A-7.3

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Long Term Suspension (2)To provide comparable educational services after 5 days until student graduates or turns 20Consistent with IEPLegal Resource AvailableManifestation determination for a student with a disability

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Long Term Suspension (3)Due Process Rights

Notice of specific chargesList of witnesess, statements and affidavits, all evidence Formal hearing before BOE/CommitteeOpportunity to confront and cross-examine witnessesCounsel permitted

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Long Term Suspension (4)

Dixon v. Alabama, 294 F.2d 150 (5th Cir. 1961), cert. den. 368 U.S. 930 (1961)Goss v. Lopez, 419 U.S. 565 ( 1975)Minimal due process for short term suspension; full due process hearing for long term suspension

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Long Term Suspension (5)

Hearing must take place within 30 daysSuspension cannot be continued beyond 2nd regular meeting of BOE without Board action to extend it. N.J.S.A. 18A:37-5Board must determine whether to continue the suspension based on nature of conduct, results of testing, assessment and recommendations

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Long Term Suspension (6)

*Must have a Behavioral Assessment including referral to Child Study TeamN.J.A.C. 6A:16-7.3*Must Remove from General Education Setting:

Firearms, assaults, threat of bodily injury, danger to himself or others

N.J.A.C. 6A:16-7.4

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Long Term Suspension (7)

Can request a transcriptBd of Ed. Decision may be appealed to the Cmr. of Ed. N.J.S.A. 18A:6-9Appeals are thereafter reviewable by the Courts. N.J.S.A. 18A:27

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Expulsions

All procedural due process rights prior to expulsionMust be provided with an educational program comparable to public school

N.J.S.A 18A:37-2 N.J.A.C. 6A:16-7.5

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Long Term Removal – 45 Days Can remove a student for up to 45 days Place in an Interim Alternative Educational Setting (“IAES”)Automatic removal for:

WeaponsIllegal drugsSerious bodily injury. 18 U.S.C. Sec. 1365 (h)(3)Dangerous to others

The same applies for special needs student. 20 U.S.C. 1415 (k)(1)(G)

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Alternative Educational Placement

An alternative educational placement is a “non traditional environment that addresses the

individual learning styles and needs of disruptive or disaffected students at risk of school failure or

mandated for removal from general education, based upon an Individualized Placement Plan and

New Jersey Core Curriculum Standards and has been approved by the Commissioner of Education.

N.J.A.C. 6A:16-1.3

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Alternative Educational Placement (2)

Educational services after 5 day suspensionAlternative placement after 10 day suspensionHome instruction or placement in another schoolCurriculum commensurate with grade level or program

Entitled to:

If unavailable, BOE must provide home or other out of school instruction.This includes expulsion.

N.J.A.C. 6A:16-9.1:

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College & Post High School Settings

Distinguish between academic vs. misconduct as basis for expulsion/suspensionDue process requirements and court review severely restricted for academic decisionsDismissals for academic reasons do not necessitate a hearing or any formal procedures

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College (2)Counsel not permitted internal hearing processStudent handbook controlsDixon/Goss cases limited to discipline, not academic dismissalsUniversity of Missouri v. Horowitz, 435 U.S. 78 (1977)Van de Zilver v. Rutgers University, 971 F. Supp. 925 (D.N.J. 1997)Hernandez v. Don Bosco, 322 N.J. Super. 1 (App. Div. 1999)

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Expulsion: Private School = Law of Associations

Similar legal analysis to being kicked out of a clubVery low level scrutiny

Rational relationship not requiredArbitrary & CapriciousMust show violation of policy and rules

Calabrese v. Policemen’s Benevolent Association157 N.J. Super. 139 (1978)

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Litigation – Causes of Action

Thorough and Efficient Education – Article III, Section IV, NJ ConstitutionArbitrary & Capricious – lack of due process/violation of policyDeprivation of constitutional rights - 42 U.S.C. Sec. 1983/ NJCRA

1ST Amendment – Speech, Association14th Amendment – Due process/equal protection/liberty right4th Amendment search and seizure

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Litigation – Causes of Action (2)

Section 504 of the Rehabilitation Act of 1973Special Needs – IDEA Administrative Remedy only – No $ DamagesViolation of LAD – Law Against Discrimination, N.J.S.A. Title 10:5-3, et alsViolation of the ADA – Americans with Disabilities ActViolation of Title VI

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Litigation – Causes of Action (3)

Violation Title IX – Sexual HarrassmentBreach of contract/implied contract – student handbookPromissory estoppel/relianceNegligence/failure of supervision- Title 59

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Forums

Administrative/Federal/StateDCR, OCR, OALExhaustion of administrative remediesAppeal: 90 days to appeal from BOE determinationBureau of Controversies and Disputes

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Remedies

Reinstatement including all privilegesCompensatory educationExpungement of school recordFinancial damages only in state/federal courtChange of schoolOut-of-district placement/referral to child study team

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When to Litigate

Permanent school recordOver 10 day suspensionExpulsionSerious psychological harmRestraint casesBullying that creates need for CST intervention/disabilityAs well as meeting requirement of LAD case

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Manifestation Determination & Hearing

Special Needs Child entitled to a determination whether the conduct resulting in discipline was caused by the disability.Dispute must involve a change in placement – any suspension over 10 days including10 cumulative school days in a school year

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Manifestation Determination (2)

Parents to meet with IEP team to determine:Whether the conduct in question was caused by, or had a direct and substantial relationship to the student’s disability, orWhether the conduct in question was the direct result of the District’s failure to implement the IEP

If Yes, the behavior will be considered a manifestation of the student’s disability

IDEA 20 U.S.C. Sec. 1415(k)(1)(c) and (e)

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Manifestation Determination (3)

Child known to be eligible for special needs is also protected - 20 U.S.C. Sec. 1415(k)(5)(B) Child must remain in placement in IAES during litigation/appeal over the dispute - Stay-Put

20 U.S.C. Sec. 1415 (k)(4)(A)Unique circumstances to be considered on a case by case basis

20 U.S.C. Sec. 1415 (k)(a)(A)

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The FBA and the BIPIEP team must conduct an FBA – Functional Behavioral AssessmentIEP team must implement a BIP – Behavioral Improvement PlanFBA identifies triggers and causes for the behavior/antecedentsBIP is co-extensive with FBA and focuses on stopping the behavior BIP must be developed within 10 business days after removal for more than 10 school days

If the infraction is found not to be a manifestation of a disability, same discipline to be imposed as a non-disabled

peer

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