Red Flag Issues in Student Discipline

Rick Boothby, Esq. Kids Strong Conference 2013 9:45 – 10:45 a.m.

DISCLAIMER

• Today we are necessarily speaking in generalities rather than specifics

• The information provided is not legal advice• Information in this presentation may quickly

become outdated • Always research original sources of authority and

update this information to ensure accuracy when dealing with a specific matter

• Do not act or rely upon the information contained in this presentation without seeking the advice of an attorney

E-Updates

E-Newsletter Mailing List

• E-Newsletter Mailing List • Send an email to Sarah Plantz:

– splantz@bowlesrice.com• Tell Sarah:

– Who you are– Your position in public education– Your school board’s name– That you want to receive the E-Newsletter

Limitations

• We only have 1 hour together• We do not have sufficient time to

cover any of these subjects in depth• Issue spotting is our goal

– i.e., knowing when something is, or is not, an issue

Our Goal Today

• Issue Spotting – Review of procedural rules related to

processing a student suspension and/or expulsion.

– Review separate set of student discipline rules that apply to special education students.

– To better understand how the Courts view student discipline matters

Your Questions

• Please interrupt me with your questions

Survey of Audience

• Number of ______ in the room today– Classroom Aides?– Teachers?– Principals/Assistant Principals?– Central Office Administrators?– Other?

The Law

• Safe Schools Act, WV Code 18A-5-1a

• WV SBOE Policy 4373 (and your county Student Code of Conduct policy)

• WV SBOE Policy 2419

• U.S. & WV Constitution (Due Process)

An Incident is Reported to You

• What do you do?– Investigation – Informal Hearing– Notices to Parents– Notices to Others

Investigations

• Witness interviews• Witness statements (written)• Searches of students and their

property• Reports: just the facts

Informal Hearing

• Conducted by principal immediately after he/she determines alleged acts of student would be grounds for suspension– Exceptions

• Telephonic notice to parents (if possible) before informal hearing begins

• Statement of the charges• Chance for student to admit or deny• Explanation of the evidence against student• Chance for student to give his/her version of the

facts

Penalty less than suspension

• In-school suspension• Denial of privileges• Confiscation of inappropriate personal

property

Written Notice to Parents

• If principal decides to impose suspension:– SAME DAY written notice to parents by

U.S. Mail• Should include the length of suspension

imposed and the reasons therefore• Should include the specific policy and/or

statute violated by student• Should include whether principal is seeking

expulsion as well

Notice to Others

• If principal decides to impose suspension:– Notice to County Superintendent (timing

is somewhat unclear)– Notice to Faculty Senate at its next

meeting after the suspension– WVEIS entry must be made within 24

hours

Suspensions

• 10-day OSS, maximum penalty a principal can impose

• School boards may impose longer OSS– Round about way of doing this– At the conclusion of an expulsion

hearing, long suspensions may be imposed by the Board instead of expulsion (depending on the circumstances)

Expulsions

• Mandatory (shall)– Sort of

• JM v. Webster County BOE

• Permissive (may)

Principal Board

OFFENSE SUB-SECTION

SHALL SUSPEND MAY SUSPEND SHALL

EXPELMAY EXPEL

Battery of a School Employee (a) ■   ■  

Weapons at School (a) ■   ■  

Sale of Narcotics (a) ■   ■  

Felony (b) ■     ■Possess Controlled Substance

(b) ■     ■

Threat to Injure (c)   ■   ■Willful Disobedience (c)   ■   ■Possess Alcohol (c)   ■   ■Profane Language (c)   ■   ■Deface Property (c)   ■   ■Physical Altercation (c)   ■   ■Habitual Violation of Rules (c)   ■   ■

Expulsions

• Written notice to parents regarding hearing– Date/time of hearing (10-day rule)– Charges against student – Recommendation that will be made at

hearing regarding expulsion – Dangerous student?

• Description of evidence

Expulsions

• Hearing before the Board of Education– Within the suspension period (10 school days)– Continuances

• At request of student for good cause (student remains suspended)

• No continuances for school system except:– Proceedings to obtain a requested subpoena– Delay in service of subpoena to witness

– Must be recorded by mechanical means unless court reporter

– Subpoenas: superintendent may apply to circuit court – Proof: by a preponderance of the evidence

Expulsions

• Hearing before the Board of Education– Right to face accusers? Not exactly

• Right to cross examine witnesses against him/her

– Might only be administrators recounting what student witnesses told them

– Some debate about this • Right to be represented by counsel (at their

own expense of course)• Right to call witnesses and introduce

evidence

Expulsions

• Calendar year expulsion (365)– Three deadly sins

• Sale of narcotic• Battery of a school employee• Deadly weapon possession

• School year expulsion– Much longer list of offenses

• Suspension for number of days beyond initial 10 days

Expulsions

• Alternative Education– The mandatory requirements of a “thorough

and efficient system of free schools” is found in Article XII, Section 1 of the West Virginia Constitution

– Education is a fundamental constitutional right in WV, even if you are expelled

– Dangerous Student Exception, rarely invoked– AE need not duplicate what is provided in

the regular school environment

Appeals

• Circuit Court• Federal Court• Office for Civil Rights (discrimination)

Special Education Students

• A different set of rules altogether• Change of placement rules• As yet unidentified students• Manifestation Determination

Special Education Students

• Manifestation Determination– Whenever considering disciplinary action

that will result in a change of placement, the district must:

– Provide same day written notice of the removal, PWN, and the procedural safeguards notice to the parent/adult student of the disciplinary action to be taken; and

Special Education Students

• Within ten school days of any decision to change placement, meet with the parent and relevant members of the IEP Team (as determined by the parent and district) to conduct a manifestation determination by reviewing all pertinent information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents to determine:– If the conduct in question was caused by, or had a direct

and substantial relationship to the student’s disability; or– If the conduct in question was the direct result of the

district’s failure to implement the IEP.

Special Education Students

• 45-day IAES placement regardless of MD for– Carries or possesses a weapon at school, on

school premises or at a school function; or– Knowingly possesses, carries, or uses illegal

drugs or sells or solicits the sale of a controlled substance while at school, on school premises or at a school function; or

– Inflicts serious bodily injury to another person at school, on school premises, or at a school function.

Special Education Students

• IAES: no one size fits all, consider IEP & related services, needs of child, etc.

• Continued provision of IEP services in alternative environment

• Due Process Complaints, appeals to federal courts

The Courts

• West Virginia Supreme Court of Appeals– J.M. v. Webster County BOE (2000)

• Very important case• Unusual facts• The roles of principal, superintendent and

Board

The Courts

• Barnes v. Zaccari – student Haden Barnes' protest of Valdosta State's decision

to build two parking structures. The protest consisted of a collage of photographs posted on Facebook, distribution of flyers voicing objection to the parking garages, and emails to President Ronald Zaccari and board members.

• President ordered Barnes "administratively withdrawn" from the school on the grounds Barnes represented a "clear and present danger."

• No notice, other than the notice of dismissal, was provided. Nor was there an opportunity to be heard.

The Courts

• Barnes v. Zaccari • In September 2010, the court granted Barnes

partial summary judgment finding President Zaccari had failed to provide due process to Barnes.

• In February 2012, the U.S. Court of Appeals for the Eleventh Circuit affirmed in part, reversed in part, and remanded.

• Upon remand and trial, a jury found the president personally liable for $50,000 on February 1, 2013 !

Top Ten List

• 10. Get it in writing– Signed and dated statements

Top Ten List

• 9. All administrators need a digital camera (or good camera phone)

Top Ten List

• 8. Separate witnesses before asking questions or making any statements– No group interviews

Top Ten List

• 7. Forms, forms, and more forms– Saves time– Cops use them, courts use them,

insurance companies use them• Wouldn’t you like to use forms too?

Top Ten List

• 6. Know the charge– Not every bad act violates the Student

Code of Conduct/Safe Schools Act– Be able to cite chapter and verse

Top Ten List

• 5. Informal hearing with prior notice to parents– Invite parents to attend– Invite parents to participate by phone– Provide reasonable delay to give parents

time to participate• But don’t put parents in the driver’s seat• Remember who is in charge

Top Ten List

• 4. Do not use school resource officers as administrators– Serious 4th Amendment Issues

• N.C. v. Kentucky, No. 2011-SC-000271 (Ky. Apr. 25, 2013)

– Does not apply in WV . . . Yet• High school student detained in the school office

for questioning by an assistant principal regarding giving prescription drugs to a classmate

• school resource officer present during questioning• RULING: Student was entitled to Miranda warnings

before the school official began the questioning.

Top Ten List

• 3. Always determine whether the student has an IEP or has been referred for special education BEFORE imposing discipline

Top Ten List

• 2. If the student has a lawyer at the Board hearing, the school system needs to have a lawyer there too– Require advanced notice if student will

be represented by counsel

Top Ten List

• 1. Nice guys and gals finish last

Remaining Questions

Red Flag Issues in Student Discipline

Rick Boothby, Esq. Kids Strong Conference 2013 9:45 – 10:45 a.m.