Red Flag Issues in Student
Discipline
Kids Strong Conference 2013
Rick Boothby, Esq.
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become outdated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
OFFENSE
SUBSECTION
SHALL
SUSPEND
Board
MAY SUSPEND
SHALL
EXPEL
MAY
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
Kids Strong Conference 2013
Rick Boothby, Esq.
9:45 – 10:45 a.m.