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STUDENT CONDUCT

Includes: Student Discipline & Truancy Search and Seizure Dress Code Considerations Handling Athletic Code Violations Discipline of Children with Disabilities

It is becoming increasingly difficult to administer student discipline. Traditionally, the term referred to actions taken to correct violations of a student conduct code. In the 1990's we often find comprehensive student discipline codes applicable to general student conduct and others applicable to athletics and in some cases, another applicable to extra-curricular activities. For over a decade, Washington law has prohibited the use of student discipline as a response to truancy unless detailed preconditions have been fulfilled. Also the use of student discipline is now modified, and in some cases severely restricted or prohibited, if the student is disabled. Therefore, this Manual deals with the mechanics of each variety of student discipline, the interaction between the various forms of discipline, and the current restrictions on its use.

Due to recent changes in Federal law pertaining to the handicapped and the increasing legal requirements that the chronic truant be made a "focus of concern," we recommend that K-12 school administrators consider a comprehensive review of student conduct codes. Traditionally, K-12 has made clear distinctions between policies and procedures dealing with general student misconduct (the student conduct code), the discipline of handicapped students (special education regulations), the athletic code (special rules applicable only to athletes and/or participants in extra-curricular activities), and truancy. Some of the emerging concepts have not yet been incorporated into Washington case law but we nonetheless suggest that these be anticipated now.

S.1.0 Student Conduct Codes & Use Of Student Discipline-General Comments

Codes of conduct applicable to students are found in rules prescribed by classroom teachers, in rules applicable within a building unit, and in rules of the local school district. Often a classroom teacher's rules will not be found in the building unit rules; for example, shop requirements pertaining to student safety such as the requirement to wear eye protection and stay out of kick back zones for saws.

In some cases classroom rules prohibit certain misconduct but do not use the same words as a building unit rule. A classroom might have a rule against throwing paper or tickling fellow students. There will be no building unit rule explicitly prohibiting that conduct, but there will be a building unit rule prohibiting "disruptive conduct." While there is no need to use exactly the same terms in classroom conduct rules and in the building unit rules, the more consistent and similar they are, the better.

Building unit rules are normally published annually in a student handbook. School district rules are normally published in the school board policies. The student handbooks are distributed to students; the school district policies are not distributed to students, but are available for public inspection on request.

The law requires that students and parents have notice of a rule before a student can be deprived of an educational benefit on account of having violated the rule. State law requires that student conduct rules be developed as result of a process which involves parents of students and certificated staff. An annual review is required. Consistent with State law, rules must be published and displayed to both parents and students.

Discipline can impact student grades but only under special circumstances. In order for that to occur, the school board must first have adopted a policy which permits teachers to consider student attendance in grading. The law requires that a differentiation be made between excused and unexcused absences when academic performance is being considered and requires that notice and opportunity for hearing be provided when the reason for grade or credit reduction is related to misbehavior (other than truancy). When considering situations where a grade reduction or credit loss has resulted from either truancy or misbehavior, first determine whether or not there has been prior school board action authorizing loss of grade or credit; next determine what prior notice the student and parent(s) had that grade reduction or loss of credit might occur on account of either truancy or misbehavior. Without both school board action authorizing the procedure and prior notice to student and parents in writing, grades should not be reduced or credit denied. Also, even when the school board has passed a policy allowing a grade or credit to be impacted by truancy, law requires that each class be evaluated separately to determine whether or not failure to attend is a legitimate reason to impact grade or credit.

S.1.1 Adopting A Student Conduct Code

Adoption of a student conduct code requires, at a minimum, use of the committee described at S.1.1.1 below. We also recommend use of a separate committee of the sort described in S.1.1.2 below; doing this tends to expand the base of persons who have some shared responsibility for the end product.

S.1.1.1 The Ad Hoc Citizens Committee

In order to allow immediate resort to either a short or long-term suspension, there first must have been use of an "ad hoc" citizens committee which defined "exceptional misconduct" for use in the district's code of student conduct.

It is not difficult to comply with the ad hoc committee requirement. When you are uncertain as to whether or not this was done prior to school board approval of a student code of conduct, do it again. In order to comply with this requirement, one needs to evaluate the school district's population base. Minorities ought to be represented but there is no need to include each minority. For example, if the population base is 10% Hispanic and 2% Asian and 5% Black, one minority representative might effectively represent each of the various minorities. When the district's population base is divided between white and blue collar employees, try to have representatives from each of the economic categories. The law provides for an ad hoc committee of "...three of more..." and when the district is diverse, in order to comply with the intent of the WAC, consider an ad hoc committee of five or seven or even nine members.

This is not a combined school employee and patron committee, this is a patron only committee. It is generally formed via phone or written requests from a senior administrator and ordinarily meets only once. The administration begins the committee meeting by proposing a student conduct code. For example, that code might declare fighting to be "exceptional misconduct" and might provide that a short- term suspension will normally be given for the first offense and a long-term suspension for the second offense. Usually, only selected offenses, such as fighting or having a dangerous weapon, or threatening staff or students will be recommended as an offense subject to "exceptional misconduct" procedures. When the administration recommends that each and every potential student offense be subject to immediate discipline as "exceptional misconduct", the intent of the law is not being complied with.

The ad hoc committee process is intended to check the natural tendency of administrators, especially secondary administrators, to want a student conduct code which has fixed and often severe penalties for misconduct. Usually certificated teaching staff also supports this agenda and thus, the ad hoc committee is also a check on the wishes of the teaching staff. This process should be conducted in public. There is no need to provide the notices prescribed by the Open Public Meetings Act, but openness should be encouraged . When classified or certificated staff or patrons wish to attend and watch the procedure, they ought to be allowed to do so.

The law does not require that the administration propose a student conduct code or degree of recommended punishment to this committee. The administration could call a committee into being and leave the entire matter to the committee. However, a committee without an agenda usually either does the unexpected and undesired or it does nothing at all. Therefore, we recommend that the administration a) go to the committee meeting, b) explain what it is to do and how it is to do it, c) propose a solution to the committee and d) defend that solution to the committee.

Generally, the ad hoc committee acts as a judge of the administration's proposed student conduct code. The proposed code is submitted to the committee and the committee is free to endorse the proposal as made or modify it. There are no time limits provided in the law for this process. However, the law does not prohibit administrators from establishing one. For example, when a committee is formed and when the administration proposes a student conduct code to it, the administration might choose to ask the committee for final action within a reasonable time, such as a week or 10 days.

As indicated above, this committee generally meets once, reviews the proposal of the administration, then either approves it as proposed or makes minor changes and finishes its function. However, when a committee wishes to engage in a more extended review, it is free to gather information on its own and meet as often as it wishes. A committee might, for example, want to gather the student conduct codes other school districts are using in its local area, county or athletic league. There is no need for the administration to be present at each and every meeting of the committee.

The law does not set forth a certain procedure for operation of the ad hoc committee and therefore, when there are divergent views and deliberation, reference to "Robert's Rules Of Order" is recommended. The law does not require a written report from this committee but we recommend that the administration get something in writing from the committee, even if it is nothing more than signatures approving a proposed student conduct code in order to prove, perhaps years later, that the process was used.

Because of the selection criteria (e.g. representatives of ethnic and economic groups in community), the ad hoc committee also serves a political purpose. Normally, when a dispute arises over imposition of discipline, it will occur in the context of "exceptional misconduct" and imposition of a long- term suspension or a pattern of using long-term suspension. When that occurs, having had legitimate representatives of the complaining student's parents and community on the ad hoc committee will pay dividends.

S.1.1.2 Use Of A Joint-Certificated Employee-Patron Committee During Adoption Phase

The sole purpose of the ad hoc committee described in Section S.1.1.1 is to define "exceptional misconduct" and to set the range of consequences for such activity. In addition to that, when adopting or revising a district-wide student conduct code, we recommend that another committee altogether be used. This committee should include, at a minimum, representatives of the principal's association (if any), the certificated employee bargaining unit (education association) and selected members of the parent/patron community.

This committee will normally be lead by a senior administrator tasked with responsibility for developing a comprehensive student discipline code. This might be, for example, the director of student services or director of curriculum or such other senior administrator who has responsibilities in this area. This person will normally act as chairperson of this committee and lead its work.

The committee should evaluate various offenses and the degrees of penalty which will normally be associated with each. As an example, use of tobacco on school grounds is now against state law and ought to be included; normally at least the first offense will not be serious "exceptional misconduct" and a normal range of penalty can be prescribed. That might be, for example, a short-term suspension of from one to three days; or, it might be after school detention or a community service requirement. Use of alcohol might include a referral mechanism for an alcohol assessment when that appears indicated. In those areas where gangs are a problem, a dress code might be considered; this is now done by exclusion of those forms of dress normally associated with the gangs. Also, the description of misconduct and the degree of penalty attached to it might vary between grade levels or different building units.

When this committee is formed, you can expect that several hours to several dozen hours of session time will occur. We recommend that a data base be developed. This can take the form of existing codes from other local school districts, other districts of similar size and composition around the state, or such other form as you deem appropriate. Without a data base the code will be subject to challenge as arbitrary and capricious. With even one other code submitted for consideration, that ceases to be a potential problem.

Student conduct codes can be challenged, often years after adoption, as inherently discriminatory. The discrimination claim can relate to ethnic group, gender, sexual preference, or disability, including perceived disabilities. It can also be challenged for failing to provide for rehabilitation in addition to simple punishment.

This project is not to be rushed. It is best to finish it before the present school year ends looking toward adoption of a new student conduct code for use in the next school year. That implementation will then be preceded by development of new student handbooks and other forms of dissemination of the code.

This committee should be treated as one which is subject to the Open Public Meetings Act.

In addition to formulating a list of standards (sic: prohibited offenses) to which students will be held and ranges of penalties, this committee can also serve other purposes, e.g. develop award programs for excellence in education. In some cases, this committee should consider asking particular interest groups to provide input into its processes. For example, the range of school employees who can impose discipline includes both certificated and classified personnel can be controlled. When the bus drivers and classroom aides have input into the process, they are more likely to accept some responsibility for the final product.

S.1.1.2.1 Guiding Principles In Developing A Student Conduct Code

1. Involve patrons, parents, certificated teaching and support staff, classified staff, and administrators. Give strong consideration to student participation in the process.

2. Disseminate information about the student conduct code to both parents and students. Develop student handbooks. Each building unit should have its own student handbook. The handbooks detail will vary depending upon the age and maturity of the students; a K-5 handbook, for example, might not be as detailed as a 9-12 handbook even though many of the applicable rules are the same. Make sure that these handbooks are discussed at PTA and PTSA meetings, faculty meetings, and parent open houses or meetings.

3. Do in-service work to ensure that the student conduct code is applied uniformly throughout the district and is not in a discriminatory manner.

4. Select an administrative staff person who is expected to be thoroughly familiar with the student conduct code as a whole, school district policy and procedure, and who is prepared in advance to deal with parents when concerns arise.

5. Encourage administrators to exercise discretion without fear that by doing so they will open themselves to undue criticism. Encourage consultation with the person designated at paragraph 4 above to discuss problems.

6. Work towards uniformity in application. A 5th grade student who violates X rule in Y building should get substantially the same treatment as a student (in the same grade) who violates X rule in Z building.

7. As to both short-term and long-term suspension, the law requires an individualized determination of the penalty to be imposed. This requirement is essential to substantive due process concepts but is not liked by school administrators who want a direct unequivocal "cause and effect" code. Recognize this conflict and discuss it.

8. Remember that, in the 1990's, the primary objective, as to each student, is to keep the student in school rather than to remove the student to keep the educational atmosphere optimum for everyone else. Therefore, when practicable (and that isn't always), try to involve both the student and parent in student discipline decisions.

9. At or near the beginning of each school year, the applicable student conduct code should be reviewed and discussed at the building unit level. This discussion should include both certificated and classified staff.

S.1.1.2.2 Designation Of Officials Who Can Impose Various Degrees of Suspension

The student discipline code committee referred to in Section S.1.1.2 should address the question of which level of official can impose various forms of discipline. The law grants to the school board the authority to impose suspensions and expulsions and provides that the board may delegate that authority to the superintendent or his/her designee.

A short-term suspension is one which ranges from a portion of a day up to five (5) consecutive school days in length. A long-term suspension is one which exceeds five consecutive school days.

This committee might consider establishing lower limits on the duration of any single short-term suspension, e.g. up to two days K-4 and up to three or four days, 5-12. Note that the limits on use of short-term suspension are cumulative within a particular semester or trimester; therefore, a K-4 student who has been given five (5) days suspension cannot be given another short-term suspension during the remainder of the pending semester or trimester; a 5-12 student cannot be given more than 10 days (cumulative total) short-term suspensions in a trimester or 15 days in a semester.

Normally the building unit principal or assistant principal ought to be designated as having authority to impose short-term suspension. This is the lowest level of suspension and it also is a form of discipline which requires less formal due process than a long-term suspension. Another consideration which recommends this choice is that, unlike more severe forms of suspension, the building unit leadership can elect to continue the suspension in effect even when the student/parent/guardian has chosen to appeal imposition of the suspension. Unlike more severe suspensions and expulsion, a short-term suspension cannot leave any substantial legacy of impact on the student's academic standing.

The committee might also suggest delegation to the building unit level, e.g. principal and assistant principal, the authority to impose a long-term suspension. For K-4 students, the cumulative total of both short and long-term suspensions in any semester or trimester is ten (10) school days. For 5-12 students, a long-term suspension can be until the end of the trimester or semester--but no longer. However, there are other considerations. When a long-term suspension is imposed, academic grades or credits can be affected; that might occur as a practical consequence or might be intended to be a consequence, but in either event, statutory restrictions addressed in earlier sections become applicable. Also, all long-term suspensions must be reported to the superintendent or designee within twenty-four hours after imposition of the suspension and a long-term suspension should not take effect until after three (3) school days have passed following issuance of the notice of long-term suspension. The consequences of a long-term suspension are often severe enough to evoke interest in school board and perhaps even judicial review. The procedure is, at best, convoluted. We recommend against delegation of long-term suspension authority to the building unit level. In the event the committee does elect to delegate authority to the building unit to impose long-term suspensions, the committee might consider limiting that authority by allowing the building unit administration to impose a long-term suspension of up to only ten (10) days.

S.1.1.2.3 Designation Of Officials Who Can Impose Expulsions

Like suspensions, there must be a delegation of authority from the school board to those officials who can impose expulsion. There are two distinctly different forms of expulsion. Those are "emergency expulsion" and "regular expulsion." A student who is being put out on an emergency expulsion is one who is "...an immediate and continuing danger to [him or herself], other students, or school personnel or [who represents] an immediate and continuing threat of substantial disruption of the educational process..." On the other hand, a student who is issued a regular form of expulsion is one who has usually earlier failed to respond to discipline and suspension or as to whom there is reason to believe lesser forms of discipline would fail. We recommend that the authority to expel a student who is a danger to him or herself or others be delegated to principals and assistant principals; with this sort of student, protection of the health, safety and welfare is the primary consideration and prompt response is usually essential. Also, this action establishes the basis for seeking assistance of law enforcement, if necessary, to remove the student.

Regular expulsion is used as a last resort. It represents a declaration by school officials that the educational system can no longer tolerate the student. This normally means that the student is not an "immediate and continuing threat" to anyone in particular; instead, the student has become such a nuisance that he or she is either taking up an extraordinary amount of staff time or is interfering with other students' educational opportunities and the conduct can no longer be tolerated.

Even though "emergency expulsion" can be used to avoid a "...substantial disruption of the educational process..." that is an extraordinary situation. Normally, "regular expulsion" is used to deal with a pattern of aberrational conduct.

When a regular expulsion is used, the expulsion is not imposed immediately; when an "emergency expulsion" is used, the expulsion goes into effect immediately.

In addition to "emergency expulsion" there is also an "emergency removal" provision which allows removal from "...a class, subject, or activity...when that student's presence poses an immediate and continuing danger to the student, other students or school personnel or an immediate and continuing threat of substantial distruption...." There is no need to address delegation of authority to impose this removal. The WAC allows removal "...by a certificated teacher or an administrator..." provided that the student is "...sent to the building principal or designated school authority..." and this action cannot last longer than the next school day.

With regard to the official who can impose a regular expulsion, we recommend that this authority either not be delegated to the building unit level or that the local district's student discipline procedure incorporate a review procedure by a district-level administrator. In the 1990's we face a variety of reasons why use of an expulsion might need to be reconsidered. These include consideration of a possible behavioral disability or history of alcohol or drug abuse which might legally preclude use of expulsion. Also, use of this procedure requires prompt coordination with and notice to other agencies responsible for juveniles.

We recommend an additional procedure be added which is not addressed by any RCW statute or WAC regulation. When a student is put out of a building unit, whether a notice of expulsion was issued or not and whether the building unit administrators consider the action (or failure to act) to be an expulsion or not, prompt notice should be given to the superintendent or designee. We have encountered several situations where secondary administrators have simply told students that they could not continue to go to school in that building, and referred the student to an alternative learning program or suggested transfer to another district. In our opinion, when such a transfer is not voluntarily initiated by or agreed to by the student and student's parent/guardian, in writing, an expulsion has occurred.

S.1.1.2.4 Consideration Of Corporal Punishment

Subject to specific restrictions, corporal punishment is still allowed in Washington. Many school districts, however, have specifically prohibited it.

The use of corporal punishment is dangerous and it is often misunderstood. For example, where it is used, students are routinely referred to the principal for imposition of the punishment but unless the parent/guardian has earlier authorized the principal to impose corporal punishment, the law prohibits him or her doing do. The law prohibits imposition of punishment in front of other students; this means avoiding embarrassment to the student and that means imposing this sort of punishment in an adjacent room or hallway where fellow students can overhear the event is also prohibited because it is humiliating to the student. The law does not allow classified staff to impose corporal punishment; there simply are no circumstances whatsoever where any classified staff should be allowed to or asked to impose or act as a witness to this form of punishment.

Corporal punishment is not simply striking or spanking a student on the bottom. When a student is thrown, kicked, burned, cut, hit with a closed fist, threatened with a deadly weapon, or given "greater than transient pain or minor temporary marks" that is illegal corporal punishment.

In Washington, the legal basis for corporal punishment appears to have begun with the concept of "in loco parentis" meaning in place of the parent. Now, however, the continued use of corporal punishment appears to be based in the "police power" of the State (meaning power to regulate conduct). In this text's predecessor, we expressed the opinion that if corporal punishment was incorporated into the policy and procedure of the local school district, a parent/guardian could not restrict its use on his/her student by declaring that this form of punishment was not to be used, but given caselaw issued since that time, we now recommend the opposite procedure. If a parent or guardian expresses orally, or in writing, the directive or request that corporal punishment not be used on his/her student, do not use it on that student. All staff should be notified of this requirement and no matter who receives the admonition from the parent, it should be treated as applying to everyone in the school district and should be treated as remaining in effect for as long as the student remains in the school district.

Due to current legal considerations applicable to discrimination claims and the possibility that corporal punishment may inadvertently be used on a student who is classified (or should be) as a special education student, or a student who has a history of either alcohol abuse or drug abuse or is engaging in aberrational conduct on account, in whole or in part, of adults in his or her home who suffer from alcohol or drug abuse, we recommend that the committee considering the student conduct code disallow use of corporal punishment. In addition, use of this procedure can be viewed as a form of sexual harassment; this is especially true when the punishment is being imposed upon a female student by a male classroom teacher or principal/assistant principal.

However, when the committee determines to allow the continued use of corporal punishment, we recommend the following rules and restrictions be applied:

1. Use is limited to the elementary school or K-5 level;

2. The person imposing the punishment use a wooden ruler, or similar wooden instrument, no more than 12" in length and with dulled edges to strike the student on the buttocks. Never impose corporal punishment by spanking a student on the buttocks with the hand. No clothing should be removed.

3. The student be taken to the office or well away from his/her classroom or activity before the punishment is imposed. (Humiliation in front of peers must be avoided.)

4. The staff person who is witnessing the procedure must be a certificated employee and must satisfy him or herself that the staff person who is imposing the punishment is not angry at the student. Any combination of a) striking a student and b) anger must be avoided. A memo confirming this should be prepared by the witness.

5. Above K-3 and preferably above K-2, the person imposing the punishment should be of the same sex as the student receiving the punishment.

6. The primary impact of corporal punishment is psychological, not physical; therefore, the student should be struck lightly and all bruising should be avoided. The student should be struck no more than twice.

7. When the student and/or parent/guardian complains that the student was bruised or some sort of mark was left, the student should immediately be examined by the school nurse.

8. A principal who intends to use corporal punishment in his or her building or allow the assistant principal to use this form of discipline should specifically include in the "student handbook" a statement such as the following:

When appropriate, corporal punishment may be imposed by a student's classroom teacher or the principal or assistant principal. Parents or guardians who wish their student excused from this form of discipline may avoid use of corporal punishment by notifying the principal's office.

Rather than waiting for a reaction, we recommend that this topic also be raised at parent meetings at the beginning of the school year and with the parents of new students as they register during the year.

S.1.1.2.5 Consideration Of Other Allowable Forms Of Discipline

Legally, neither suspension nor expulsion are forms of discipline. In practice, however, all forms of corrective action, including suspensions and expulsions, are referred to as "student discipline." But, the confusion of terms does not end there. A "suspension" includes suspension from a single class or activity. Thus we have suspensions and expulsions which certainly seem to be "discipline" but which legally are not that and we have "suspension" meaning removal which is a "suspension" unless it is from an "immediate class period" in which case it is not a suspension. Confused? Case law and our experience confirms that you are not alone.

The term "discipline" legally refers to all forms of discipline other than suspension and expulsion. It includes corporal punishment; it includes sending notes home with a student; it includes referral to the principal's office for an "immediate class or activity"; it includes detention time during recess, requirements to do extra work after school or on Saturday.

As a matter of practice, the term "discipline" also includes "in-school-suspension." This is a form of discipline, while not specifically referred to in any statute or WAC, is routinely imposed on a short-term basis, without formal notice or hearing or any sort. Usually an in-school-suspension is imposed before a short-term suspension is used. Technically, an in-school-suspension is a suspension. A suspension also takes place when a student is prohibited from attending an athletic contest or a school dance.

Each school district must address what is and is not acceptable discipline. Unless further specification is provided every certificated teacher, every administrator, and every school bus driver possesses an equal right to impose student discipline provided the discipline is not a suspension. Also, the WAC reference to certificated teacher does not necessarily include a counselor or school psychologist or librarian; the school board may wish to designate these persons as staff who can impose discipline. The problem is the same for school secretaries or classified staff persons supervising recess and playground activities; the school board may wish to designate these persons as staff who can impose some limited discipline.

The law does not prohibit a breaking down of the authority to impose discipline. For example, you might want to give classroom teaching staff the right to assign extra work or impose a recess detention or after school work but not give that same right to bus drivers or school secretaries. That can be done as long as it is approved by the school board.

S.1.1.2.6 Application To School And Out-Of-School Activities (See Forms SC-04, SC-23)

A student conduct code normally is applicable only to conduct which occurs at school, on school transportation enroute to or from school, and conduct at school activities. The student conduct code will apply at a sports or other student event, even if that event is taking place at another school; the code will also apply on a field trip, even if that trip is in another state or country.

Responsibility generally follows application of the student discipline code. One cannot, for example, discipline a student for fighting or threatening other students on a public sidewalk or in a public park and not accept some responsibility to police student activities in those areas. Put another way, you should not selectively police student activity away from school and meanwhile deny responsibility for injuries to students which you could have avoided by doing so in similar situations.

This can become a consideration in a variety of ways. For example, many students walk to school and some prey upon fellow students en route. Good administrators hear complaints from victims of assault or harassment and want it stopped. Often, local law enforcement will not help. The more caring the administrator, the more likely he or she is to want to use the student conduct code to put an end to the assaults or harassment.

The same is true of enforcing an anti-smoking regulation against students who will stand across the street from the school before or after school and smoke. The same is true of students who will abuse an "open campus" regulation which might, for example, allow students in grades 11-12 to leave the campus for lunch but who smoke or fight or assault while they're off campus.

In all of these situations, we recommend that administrators assume they do not have jurisdiction to impose student discipline. That does not mean, however, that they necessarily need to do nothing at all. You may provide, in your student conduct code, for notice to parents and notice to law enforcement agencies or juvenile agencies in such circumstances. See, however, Section S.4.1.4.

S.1.1.2.7 Use Of Student Disciplinary Board

The law does allow the use of student disciplinary boards. These boards are essentially advisory in nature and are made up of students, teachers, administrators, or parents, or any combination thereof. These boards can be used as a vehicle to allow a review of a particular action or review of the propriety of continuing to enforce a particular rule (for example, a dress code). The board has no authority to decide an issue, it can only recommend a course of action. But, as a practical matter, when used, a student discipline board inevitably ends up sharing responsibility for the ultimate outcome of the matter.

S.1.1.2.8 Use Of Student Contracts (See Forms SC-17)

Particularly at the secondary level, the use of some form of "agreement" between an administrator and a student who has engaged in aberrational activity is common. Basically, this is an agreement by the administration to forego some otherwise appropriate action, such as imposition of a long-term suspension, in return for a student's agreement to undergo a period of probation during which his or her rights are more limited than the rights of the student body as a whole. There is often, but not always, inclusion of an admonition as to what will happen or what will probably happen if the student fails to fulfill his or her promise.

In our experience, these contracts often are used in situations which deal, in whole or in part, with truancy. See Section S.5.0 et. seq. Student contracts have questionable legal value but high practical value. No statute or WAC even indirectly refers to them. Administrators often assume these contracts are legally enforceable as written. Over and over we have experienced situations where an administrator was issuing a long-term suspension or an expulsion or action which was akin to an expulsion because the student did not comply with his or her contract. Student contracts do serve a legitimate purpose. They are not a form of "discipline"; instead, they are an extraordinary procedure intended to individualize the student's situation.

Especially when dealing with tardiness or truancy, use of contracts, serves a legitimate purpose. But, again, consider the "contract" a form of "corrective action." When a student fails to fulfill the contract that is not a new basis for discipline (new violation), it is only a failure of that level of "corrective action" which might justify movement toward a more severe form of discipline.

S.1.1.2.9 Special Disciplinary Considerations-Bus Drivers (See Form SC-14)

Students who ride school buses are subject to additional series of procedural requirements. In order to fulfill these requirements, each school board must adopt policies and rules providing instructions and directions to students who ride buses and a copy of these rules must be provided to each student who is riding the buses. Thus, all students and their parents must receive written notice of the general student conduct code and students who ride buses must receive an additional written notice of the rules applicable to them.

Normally procedural bus rules are a bit different than the general student conduct code. Misbehavior might, for example, require that the bus driver write up the incident and give a parent and student a written notice that the misconduct has occurred; a local school district procedure might declare that one or two or three such notices must be given before a suspension from bus riding privileges can be imposed. Anticipate disputes by parents over application of bus rules. When that occurs, the grievance procedure applicable to "student discipline" should be used.

S.1.2 Procedure Applicable To Student Suspension & Expulsion

The procedures used to properly process a short-term suspension, a long-term suspension and an expulsion vary. The procedures are established by Chapter 180-40 of the WAC. In general, these start with a summary procedure applicable to a short-term suspension, then require a more detailed procedure for the processing of a long-term suspension or expulsion with the response times shortened as to expulsion.

There are common procedural requirements for any suspension or expulsion. These are:

1. Notice to the student and to the parent of

a. The reason for imposing the penalty (e.g. violation); and b. the penalty to be imposed.

2. Right to a conference or hearing.

3. An appeal or grievance procedure.

4. A right to petition for reinstatement at any time.

There are also distinct differences. A short-term suspension can be continued pending appeal or grievance. A long-term suspension can never be continued pending appeal. An expulsion can never be continued pending appeal. An emergency expulsion is always continued pending appeal. Also, a short- term suspension is commonly imposed by the administrator who is in the building unit with the student and there is no serious consideration of whether or not this official is "impartial"; but when dealing with a long-term suspension or expulsion, there is a requirement that the hearing officer be "impartial", meaning someone who is disinterested or not involved in the development of the matter. A hearing officer on a long-term suspension or expulsion cannot be a witness, but the administrator imposing a short-term suspension may have been the witness to the misconduct.

S.2.1 Procedure Applicable To A Short-Term Suspension (See Forms SC-01, SC-02, SC-03, SC-26(a) and SC-26(b))

Like all suspensions, a short-term suspension "...may be imposed upon a student for violation of school district rules...." This is often misunderstood. The short-term suspension is imposed at the building unit, normally by an assistant principal tasked with handling student discipline or by the building principal. The WAC requires that the student have violated "...school district rules..." not the rules of the building unit. Therefore, the administrator who is considering a short-term suspension ought to compare the misconduct to the list of "school district rules" adopted by the school board and made reference to a particular rule in the notice of suspension (Section S.1.0).

S.2.1.1 Discipline of Children With Disabilities

The term "children with disabilities" refers to all children who have been assessed as having special educational needs. The term also refers to unassessed children with special needs when, in retrospect, administrators can be held to have known or to have should known disabling conditions were present. In addition, the term refers to some children who do not qualify for special education classifications: Attention Deficient Disorder (ADD) children, and children who have manifested educational deficiencies caused or contributed to by alcoholism or drug abuse. As to all such children, review and follow Sec. S.9.0. et seq.

S.2.1.2 Consideration Of Prior Cumulative Suspension Days

Even if the student is not handicapped, WAC 180-40-245 does have limits on the use of short-term suspension. These limits (restrictions) apply to non-handicapped students and are as follows:

1. Grades K-4: Five (5) days in any trimester or semester. 2. Grades 5-12: a. Ten (10) days in any trimester. b. Fifteen (15) days in any semester.

S.2.1.3 Consideration Of Truancy, Tardiness, Excused Or Unexcused Absences

Short-term suspension should not be used if the basis, in whole or part, is related to an unexcused absence. Instead, no "suspension" should be imposed (but "discipline") is available, meaning, for example, detention).

When the basis is an "unexcused" absence there is a precondition. When there have not been any actual conferences with the student, parent, guardian or custodian concerning truancy (unexcused absences) prior to consideration of the short-term suspension, we recommend short-term suspension not be used; instead, renew efforts to meet with the student and his/her custodian.

S.2.1.4 Preparing For And Conferencing With The Student

Here, the due process of law requirements begin to come into play; even though you are dealing with relatively minor misconduct and the potential for removal from school for only a few days, the child's constitutional right to attend school begins to conflict with the school's right and duty to enforce reasonable rules of conduct. You are required to inform the student of the offense and the punishment you are considering. You have either personally observed the child break a conduct rule or the child has been referred to you for discipline. In either case, have an outline of information sufficient to allow you to communicate to the student the misconduct at issue.

Next, seek input from the student. You can ask the student for his or her version of events. You can ask the student why he or she did whatever is at issue. The student does not necessarily have to answer your questions and you should not base your disciplinary decision, in whole or in part, on the student's refusal to answer.

This does not mean that you cannot consider the student's refusal to answer in making a decision because A has reported to you or you have seen A engage in misconduct and now you are confronting A and asking for A's version of events; if A refuses to cooperate, then what you saw or what was reported to you is the version of events that must be relied upon. Thus, the student's lack of cooperation might affect your decision on guilt or innocence but it should not affect your decision on penalty.

After having received input from the student or, at least, having offered the student an opportunity to provide input (as to both guilt or innocence and explanation of why he/she did or failed to do what was expected), fashion the penalty.

RIGHT: 1) Explain what you are considering and why, 2) ask the student what happened and why he/she did or did not do what was expected, 3) fashion the penalty you will impose and 4) notify the student of the penalty.

WRONG: 1) Explain what you are considering and why, 2) tell the student what the penalty will be, 3) ask the student what happened and why he/she did or did not do what was expected.

S.2.1.5 Preparing The Notice Of Suspension

Again, review the school district rules and compare the misconduct at issue to those rules. For example, Ms. Smith might have reported that Billy was told to stay in his seat and he refused to do so; instead, he moved around the room grabbing Susie's and Jane's hair. If Billy is in elementary school, when conferencing with him and explaining what he did wrong and what you intend to do about it (above) it will be best to talk to him using Ms. Smith's report as the basis for the rule. There won't be any need to inform Billy of exactly which "school district rules" are under consideration. But, in fashioning the notice, there is a duty to refer to those rules.

The above conduct might, for example, be a violation of a school district rule prohibiting disruptive conduct or a rule requiring that students "submit to the reasonable directives of staff." It might be both.

During the discussion with Billy before determining what penalty to impose, you may have learned some new information. For example, Billy might have said "I'm supposed to take ritalin but I haven't been taking it lately" which means you should suspect Billy is hyperactive (ADD). Billy might have said "I'm sorry, I was tired, Mom and Sam were fighting all night and I didn't sleep." That is a mitigating circumstance which might modify what would have been a three (3) day suspension to a one (1) day suspension.

Now, fashion the notice. Here, we assume that the suspension exceeded one calendar day.

A notice to the parents/guardians should:

a) summarize the misconduct; b) cite to the rule violated (e.g. "...School Board Policy 3320, Sec.________, Disruptive Conduct."); c) declare the duration of the suspension; and d) summarize the parent/guardian's right to an informal conference with you.

S.2.1.6 Issuing The Notice And Beginning The Suspension

The process assumes that no student is going to be put out of school without the parent/guardian knowing, in advance, that the student is not where they expect him or her to be--specifically, in school. Therefore, if you wish to begin the suspension immediately (that day), plan on personally contacting the parent and letting the parent/guardian know that you want the student out of school and that they are to come to the school and pick up the student (elementary) or that you are sending the student home (for secondary grade levels, but not recommended below grade 9).

Alternatively, issue a notice to the parent orally or in writing (we recommend writing) which begins the suspension at a later date. For example, if it is the 5th of the month, you might begin the suspension on the 9th and issue a notice by regular mail. Also, inform the student of the date on which the suspension will begin.

You may send a copy of the notice home with the student but that requirement will not replace the need to mail the notice or orally inform the parent in person. To meet the requirement of WAC 180-40-250(2) you may:

1. Orally inform the parent; or,

2. Orally inform the parent and send a written notice home with the student; or,

3. Send a written notice home with the student and mail a copy to the parent/guardian; or

4. Mail a notice home to the parent.

Check local school district policy, because local policy often requires that a written notice be used in all cases.

S.2.1.7 The Informal Conference-Beginning The Suspension

When a short-term suspension is declared, the student and/or parent/guardian has a right to an informal conference.

In practice, this often means that the aggrieved parents want to meet with the teacher who reported their child to the administration which then lead to imposition of the suspension. Neither teachers nor administrators like these meetings. WAC 180-40-255 does not, literally, require that the teacher be involved in he meeting; instead, it requires that he/she be notified "....of the initiation of a grievance as soon as reasonably possible..." and that can mean that the administrator meets with the parent/guardian/student and later meets with the teacher.

In some cases, the parent/guardian will insist upon meeting with another student. For example, Billy has been given a suspension for assaulting a fellow student, Sam. Billy's parents insist upon a meeting with Sam. The WAC does not require such a meeting and the meeting might very well violate the Federal Family Rights and Privacy Act unless the parents of Sam have given permission in advance for such a meeting.

Note that the student him or herself has a right to this "informal conference." This can occur when, for example, an assistant principal imposes discipline upon the student and the student then indicates to the assistant principal, that he/she wants to see the principal. When that occurs, the assistant principal should refer the student to the principal.

S.2.1.8 Appeal From The Informal Conference

Once the building level grievance meeting ("informal conference") has been held, the parents have a right to go further. The law does not require that the student/parent/guardian be informed, at the informal conference, of this appeal procedure. However, if anyone asks, they should be informed of the procedure and exactly how to implement it.

The right to appeal is that of the student/parent/guardian and in the event any of them are not satisfied with the superintendent level response, they are entitled to take the matter on to the school board.

It is often advantageous to explain this procedure to disgruntled parents at either the building unit or superintendent's level because failing to do so, in some cases, results in a disgruntled parent bringing up the whole matter to the school board anyway. When that happens, an opportunity for the administration to resolve the grievance without board involvement has been lost and it is difficult and often impossible to get it back. Administrators complaining about parents going to the board without having gone through them first, with a grievance, can be embarrassed if they have failed to explain to the parents the proper procedure before the parents go to the board.

Unless local district procedure requires a written appeal, the law allows either an oral or written request. That request must come within two (2) school business days, meaning (generally) school day but not always; there normally are 'school business days' which occur during winter and spring vacations and during the summer break - they should not be counted.

At the superintendent's level, the same procedure reoccurs.

At the school board level, it is usually best to treat one of these appeals as a matter which is represents a dispute between named individuals and thus, one which is outside the scope of the Open Public Meetings Act.

In practice, this means that the board-level grievance will usually be heard before the next regular or special board meeting begins or after it ends. The public does not have a right to attend such a "meeting." However, others do have a right to attend. The student and his/her parent/guardian/custodian has a right to attend. In the event the student/parent/guardian/custodian is making a direct or even indirect complaint against a staff member, classified or certificated, we recommend that person be invited to attend.

During the grievance process prescribed by WAC 180-40-255, there are repeated opportunities to modify the duration of the short-term suspension. The principal or the superintendent or the school board might, for example, modify a five day suspension to a one day suspension. At any of these various levels, the entire suspension might be expunged, meaning removed entirely from the student's disciplinary record. Neither the superintendent nor the school board has authority to direct the "...principal or his or her designee..." to modify, rescind or delay the suspension. At each level, an official or the governing body can adjust the "action" but they cannot direct the subordinate administrator to do so.

The school board may (but need not) decide the matter in the presence of the student/parent/guardian/custodian. The decision should be conveyed to the appellants in writing within twenty-four hours of the board's action.

S.2.1.9 Should The Short-Term Suspension Be Continued In Effect During

          The Grievance/Appeal Process?

Unlike a long-term suspension, a short-term suspension may be continued in effect while the grievance/appeal process is ongoing. Effectively, this means that almost any short-term suspension, whether it is for the minimum period (one calendar day) or the maximum (five consecutive school days), will run its course before the grievance/appeal process has been exhausted.

The public policies at work here are:

a) the duty to provide notice and hearing and a meaningful appeal process which competes with b) the governmental interest in having a student conduct code which is enforceable and respected.

At this level, unlike more severe levels of student discipline, the governmental interest is given precedence. This is a rare place where the balance is in favor of action over appeal; the administrator will usually want to take advantage of this. We believe you usually should.

S.2.1.10 Short-Term Suspension of A Handicapped Student (See Forms SpE-28 and SpE-29)

The term "children with disabilities" refers to all children who have been assessed as having special educational needs. The term also refers to unassessed children with special needs when, in retrospect, administrators can be held to have known or to have should known disabling conditions were present. In addition, the term refers to some children who do not qualify for special education classifications: Attention Deficient Disorder (ADD) children, and children who have manifested educational deficiencies caused or contributed to be alcoholism or drug abuse. As to all such children, review and follow Sec. S.9.0. et seq.

S.3.1 Procedures Applicable to Long-term Suspension

A long-term suspension is a suspension from a class activity or all classes and activities which is six or more school days in length.

S.3.1.1 Application of Long Term Discipline To Children With Disabilities

This becomes a central consideration to any contemplated student suspension. The term "children with disabilities" refers to all children who have been assessed as having special educational needs. The term also refers to unassessed children with special needs when, in retrospect, administrators can be held to have known or to have should known disabling conditions were present. In addition, the term refers to some children who do not qualify for special education classifications: Attention Deficient Disorder (ADD) children, and children who have manifested educational deficiencies caused or contributed to be alcoholism or drug abuse. As to all such children, review and follow Sec. S.9.0. et seq.

A long-term suspension is handled in much the same manner as a short-term suspension (see Sec. S.9.0. et seq.). However, because the degree of discipline has increased, the likelihood of objection has also increased. Like a short-term suspension, there is first a need to compare the student's conduct (or report of it) to the "...school district rules.."

S.3.1.2 Consideration Of Prior Cumulative Suspension Days

At the K-4 level, long-term suspension cannot be used for more than ten school days (total) during any single trimester or semester. At the 5-12 grade level, there is no restriction on the use of long- term suspension except that it cannot continue beyond the semester or trimester in which it begins. In practice, this means that if you impose a long-term suspension, at grades 5-12, which deprives the student of any grade or loss of credit, that cannot occur again during that school year. That does not mean (see below) that expulsion won't be available if you have used a long-term suspension which effectively impacts either grade level or credit, but again, it does mean that long-term suspension probably will not be available for the rest of the school year.

When considering use of a long-term suspension, we suggest that you contact the student's classroom teachers before final decision on the length of the suspension in order to determine probable impact upon the student's grade in each class and possible loss of credit. This is an essential step (see below) in order to determine whether or not the student will have sufficient opportunity, after his or her return and before the end of the trimester or semester, to make up lost work and avoid impact on grade or credit.

S.3.1.3 Consideration Of Truancy, Tardiness, Excused Or Unexcused Absences

	The considerations set forth in Section S.2.1.3, applicable to short-term suspensions apply with even greater weight here and we strongly recommend that Section be reviewed when considering a long-term suspension. 

S.3.1.4 Preparing For And Conferencing With The Student - Long Term Suspension

Both the procedural and substantive due process considerations applicable to suspension now increase dramatically. There is both a "liberty" and a "property" right in the student's right to attend school. Central to process at this level is the right to be heard before the decision-maker reaches a decision on guilt and innocence and the appropriate penalty; this means that both evidence as to whether the misconduct occurred and evidence of mitigating considerations must be considered before decision. Therefore, the first consideration in preparing for a meeting with the affected student is defining what you are going to tell the student. In this regard, you do not have to disclose the name(s) of student informants to the affected student. You are entitled to ask the student questions and if he or she incriminates him or herself, you can use that as a part of your consideration; this is a civil, not criminal, procedure and criminal-law concepts, such as the use of Miranda right warnings, do not apply. There is no need, in State law, to notify the parent, guardian or custodian before you interview the affected student. Do, though, check local district policy.

There is also no need to keep any particular record of the discussion with the student and you therefore are not required to make a tape recording of the session. If you do record the session, make sure that, at the beginning of the meeting and while in the student's presence, you indicate that an audio recording is being made.

	We recommend that you avoid discussing a student's misbehavior or possible misbehavior in the presence of other students.   Also, be especially cautious when dealing with alleged student misconduct which is potentially embarrassing to the student. 

When the situation presented to you or personally observed by you is clear enough to do so, compare the factual history to the school district policy on student misconduct. If you are investigating an alleged assault, for example, especially with a secondary (more mature) student, be prepared to tell the student, at the meeting, what the school policy says.

Also, bear in mind (see below) that if there is a hearing over the claimed misconduct, you will be required to provide the student and his parent, guardian or custodian with copies of any statements that you will be relying upon in making your case. You may want to prepare such statements in advance in order that you can show them to the student or go over them with the student before the interview begins.

Even though you can ask the student his or her version of events, you should not base your decision as to the penalty to be imposed upon the student's failure to tell you any or all of the factual history. You have a right to ask but at this level, the student has no duty to answer. Like the considerations applicable to short-term suspension, however, a suspect student who does not dispute the information you have gathered or who says, in effect, "I don't recall" or "I'm not sure" leaves a factual vacuum insofar as a defense to the charge. Therefore, you can and should consider the student's failure to dispute as evidence of guilt.

In addition, one should ask the student why he or she engaged in the misconduct. Simply giving the student an opportunity to tell you is not enough - ask. What you are seeking here is evidence of mitigating circumstances. The student might tell you of problems at home or threats by another student, etc. Simply applying a standard penalty for the first smoking or fighting or disruptive conduct offense is not complying with the law. Instead, consider the mitigating information in fashioning the corrective action.

	Do not tell the student what his or her punishment is going to be before you've heard his or her side of the events.  Especially at this level, that procedure must be avoided.  You have two (2) responsibilities,

1. Make a determination as to whether or not the student engaged in the suspected misconduct,

AND

2. Determine the minimum corrective action which is necessary to achieve remediation (correction).

This cannot be done without listening to the student's explanation, if any.

RIGHT: 1) Explain what you are considering and why, including a summary of the evidence you have, 2) ask the student what happened and why he/she did or did not do what was expected, 3) fashion the penalty you will impose and 4) notify the student of the penalty you will impose. With a long-term suspension, that notification need not be oral and it need not be given at the time of the meeting with the student.

WRONG: 1) Explain what you are considering and why, including a summary of the evidence you have, 2) tell the student what the penalty will be, 3) ask the student what happened and why he/she did not do what was expected.

S.3.1.5 Preparing The Notice Of Suspension - Long-Term Suspension (See Forms SC-04, SC-05)

Review the "school district rules" and compare the misconduct at issue to those rules. Specificity is more important in a long-term suspension case than in the short-term suspension. You may find that the aberrational conduct violates several different rules of conduct. For example, in a fight at school you may find that you can charge "disruptive conduct", "fighting", and "refusal to follow directions of staff" as a result of one single fact situation.

It is not particularly important to charge the student with each and every possible violation of the student conduct code. However, when using a long-term suspension, it is important to look at the rules and any range of penalties normally associated with a first or second violation of each. You may find, for example, that "fighting" carries a higher range of penalties in the school district policy than, for example, "disruptive conduct." In the event you have elected to use a long-term suspension, it is important to remember that you may later have to defend this more severe degree of discipline. It may be easier under a charge with the higher prescribed range of penalties than under a charge with the lesser range.

The notice of suspension is to the student, and to his/her parent, guardian or custodian. In general, the notice should summarize the misconduct at issue, cite to the school district policy (rule) violated, .e.g. "...School Board Policy 3320, Sec. ----, [charge, e.g. 'fighting']," then declare the duration of the suspension and summarize the rights of appeal (these rights apply to the student and/or parent, guardian or custodian).

With respect to the right of appeal, check your school district policies as to whether or not the appeal has to be in writing.

S.3.1.5 (a) Fashioning The Length And Type Of Long-Term Suspension

A long-term suspension can literally be whatever you want it to be. Technically, it is a suspension that is longer than five consecutive school days. There is no need to stereotype it. Instead, in the 1990s, it is best to be innovative. For example, if a student has exhibited a pattern of misbehavior in the lunch room, consider a long-term suspension from the lunch room rather than a long-term suspension from school. The same is true in almost any setting. You might, for example, issue a long-term suspension prohibiting a student from attending school functions such as dances or other student gatherings; by doing that, you have avoided any possible effect on the student's grade or credit. This might be especially important in dealing with a child with disabilities.

A long-term suspension can be from one class or activity, it can be from school curriculum entirely, it can be from extracurricular activities, or it can be for all of the these.

The longer and the more comprehensive the long-term suspension, the more likely that it will be challenged. This is especially true if the preceding history of discipline consists of only one or two short- term suspensions. In that situation, you should consider imposing a fairly short long-term suspension (e.g. six days) and perhaps following later with another longer suspension. In the future, it will become increasingly difficult to justify a regular expulsion without a history of at least two and perhaps as many as three prior long-term suspensions.

S.3.1.6 Issuing The Notice And Beginning The Suspension

Unlike a short-term suspension, a long-term suspension does not begin immediately. A long-term suspension begins only after the period during which the student, parents or guardian can request a hearing has expired, i.e., three days after delivery of the notice to them. In our experience, mistakes often occur at this point in the process. Issuing a notice only to the student is a mistake; implementing the suspension immediately is a mistake; suspending the student based upon an oral notice is a mistake.

The notice of suspension must be delivered to both the student and his parent(s) or guardian(s). Do not use "regular mail" to "deliver" the notice.

We do not recommend that the notice be delivered by "certified mail" because you can only prove that by return of a signed receipt, because the period of appeal is only three (3) school business days and that will be interpreted as running from the date of receipt, and together that will leave you in a situation where you may not know, by three school business days after mailing, whether or not to begin the suspension. Note that the law requires that a copy of the notice go to both the student and parent. We recommend that the notice be personally delivered to the student and personally delivered to the parent or guardian.

S.3.1.6 (a) Student and/or Parent(s), Guardian(s) Response To Notice Of Suspension

We have indicated in the above material that unless your school district policy is to the contrary, the response must be in writing. We have also indicated that the WAC requires a response within "three school business days." However, these WACs are restrictions on the rights of the student and his/her parent, guardian or custodian; the WACs are not restrictions on your right to allow a hearing during that period.

You may have a disgruntled parent who calls the school to complain about a suspension but who does not make a formal request for a hearing or one who asks for a hearing orally but not in writing or one who makes a request late. When this occurs, you can rely upon the WACs and avoid a hearing but that is not always the best choice. When dealing with students who may have any sort of disabling condition, or claim of one, whether that student is classified as learning disabled or not, the best of all circumstances is a hearing and the avoidance of one is the worst. You might even consider asking the parent or guardian of a student who may have any sort of disabling condition if they are willing to come to a hearing.

S.3.1.7 The Hearing Process (See Forms SC-11, SC-12, SC-13, SC-16 and SC-17)

Holding a long-term suspension hearing is not procedurally difficult. It is often, however, an emotionally draining experience and it is always a somewhat "free-play" exercise. We are expected to "...make every reasonable attempt to involve the parent or guardian and the student in the resolution of student discipline problems."

S.3.1.7(a) Using The Hearing To Achieve Compromise

At a long-term suspension hearing, with the student and the parents present, we often face the first significant opportunity to involve the parent. This is normally a situation where the student has engaged in either serious misconduct or a pattern of relatively minor misconduct which has not responded to lower levels of corrective action. As a result, the school district often can legitimately remove that student from all or a portion of the curriculum or extra-curricular activities that are important to the student. In short, we have something he/she wants and we do not necessarily have to give it back. The student usually knows this and the parent usually knows this.

A student who is issued a long-term suspension may petition for reinstatement at any time. Often, at a long-term suspension hearing, if you listen closely, that is what you will hear the student and his/her parent saying. When that occurs, it is time to consider mediation. This process may take place in a variety of ways. The hearing officer may act as mediator or the school official presenting the school's case for the long-term suspension may choose to do so.

Mediation is a give and take process and it can be accomplished in a variety of ways. The school official presenting the case might, for example, ask the hearing officer to recess the hearing and meet separately with the school representatives on the one hand and the student and his/her parent(s) on the other and then come back together to see if a compromise can be fashioned. The hearing officer might initiate the process him or herself or might even do it during the course of the formal hearing on his or her own initiative.

	Once you get the student and his/her parents to participate in the decision-making process and get them to accept some responsibility for the solution, a variety of processes begin to fall into place rather quickly.  For a child with disabilities, you might use a long-term suspension hearing and a decision by the hearing officer as the basis for modifications in the child's curriculum, including only part-time attendance.   You might fashion a discipline plan for an ADD child which includes participation by a school psychologist or counselor whenever aberrational activity reoccurs or you might ask the hearing officer to reserve jurisdiction for the remainder of the semester and defer decision on the issue at hand pending a probationary period of some sort on conditions agreed to with the parents.

S.3.1.7(b) Normal Hearing Procedure, Long Term Suspension or Expulsion When Hearing Must Be Held

Once a hearing request is received, you must offer a hearing within three school business days after receipt of the notice. The student and his/her parent, guardian, have a right to hearing within that three (3) school business day period because a suspension will normally begin to run three school business days after the notice of suspension is issued. However, this rule is waivable. The parent might not be available for a hearing within the three (3) day period and a hearing can be scheduled at a later date when convenient. When this is done, the imposition of the suspension must be delayed, too. In summary, you must offer a hearing within three school business days, but you need not actually hold one during that period if the student and/or his/her parent or guardian wants a delay and if you are willing to delay imposition of the suspension. Waivers of the three (3) day hearing requirement should always be in writing signed by the school's representative, the student and the parent/guardian.

Holding A Timely Hearing Even If Parent Objects

On the other hand, if you want the suspension to go into effect as soon as possible, then a requested hearing at a particular date and time within the three school business days; when the student and/or parent or guardian objects to the particular date and time of hearing, rely upon the WAC and hold the hearing at the date and time selected anyway.

Selecting A Hearing Officer

A hearing officer can be anyone who is not a witness as to whether or not the student engaged in the misconduct at issue or someone who will be providing evidence pertinent to fashioning the corrective action to be use (e.g. mitigating evidence).

Choosing The Location And Setting Up The Room For The Hearing

Plan the location for the hearing. It is best if this is a room with minimal disruptions. The room can either be set up akin to a court room with, generally, three (3) tables facing each other or one table around which everyone will sit facing each other. When you use the former set-up, the hearing officer with the required tape recording device is at one table, the administration at one table, and the student and his/her parents or guardians are at the third table.

Pre-Hearing Review Of Documents

Before the hearing begins, the student and his/her parents or guardians are entitled to review any written or tangible evidence (e.g. photographs for example) that the school representative intends to introduce into the hearing.

Correspondingly, the school administration has a right to inspect in advance the same sort of evidence. It is important to understand here that we focus on giving the student and his/her parents procedural and substantive due process. The law does not require that we give the same due process protection to the school administration.

Therefore, as a practical matter, a hearing officer ought to ask and the school administration is entitled to ask to see documentary evidence the student and/or his parents are going to present at hearing but, when the student and/or parent later, at hearing, presents some documentary evidence which was not earlier disclosed, as a general rule, we recommend against the school administration claiming that the rules have been violated and that it has therefore been disadvantaged.

				Preparing Exhibits For Use At Hearing

In order to comply with the requirement of disclosure, as to the student and his/her parent's right to see evidence in advance, we recommend that you prepare three (3) copies of each document in advance of the hearing; one is for the hearing officer, one is for the administration and one is for the student and his/her parents. Give the student and his/her parents their copy before the hearing begins.

Student's Right To Have Counsel

Although it is not now a common occurrence, the student is entitled to be represented by legal counsel. The school district does not have to provide the student with legal counsel nor does it have to pay the fees and costs if the student chooses to employ one.

Student's Qualified Right To Cross-Examination Of Witnesses

The student or parent or guardian or legal representative is entitled to cross-examine witnesses. However, this is a limited right. The rules of evidence, applicable to courts of law, do not apply to this sort of hearing, meaning that hearsay evidence is admissible; an administrator might, for example, report what X student said to him or her or choose to introduce a statement by another student or staff member if the source either is not available or does not want to appear at the hearing.

Student's Right To Call Witnesses-Administrator's Duty To Assist

The student is entitled to call witnesses and is entitled to introduce evidence on his/her behalf. This is sometimes difficult to comply with. We have interpreted this requirement, when it pertains to calling witnesses, to mean that the school district has a duty to make a good faith effort to get those per

sons to the hearing whom the student and/or his or her parent(s) want to testify at the hearing.  However, we do not recommend that you honor subpoenas from the student/parent.  When they wish to use subpoenas, the hearing officer should decide whether or not to issue them. 

This effort may involve asking fellow students or school staff to participate in the hearing. But there are limits. We have had students who wanted to call literally dozens of witnesses and that can be crippling both to the educational process and to the hearing process. When that occurs, the administration must first work with the student to limit the number of witnesses to a reasonable number with the standard being to avoid repetitive testimony. When that does not work, the administration must simply refuse to make arrangements for all those persons to be at the hearing and leave it up to the student and/or his or her parents, guardians or legal representatives to complain to the hearing officer about the matter.

The Applicable Standard Of Proof

The standard of proof applicable to the hearing is "preponderance of the evidence" (meaning more likely than not). This is a civil standard of proof and is a lesser standard than the criminal law standard of "proof beyond a reasonable doubt." However, as the duration of the suspension and its impact upon the student's grades and credit accumulation increases, expect hearing officers to apply a standard of proof which moves closer to "proof beyond a reasonable doubt."

Hearing Procedure-Use of Opening Or Closing Statements

The law does not require that either opening or closing statements be given to either the school administration or the student/parent side. It is, however, sometimes helpful to a hearing officer. When this procedure is used, make sure that each side is treated equally and when in doubt, err on the side of treating the student's side more equally than the administration's side.

Hearing Procedure-Sequence Of Events

The school district puts its case on first. This means that the administration calls those witnesses it intends to rely upon first, then the student and his parents call their witnesses. Following the student's presentation of witnesses, the administration may be entitled to rebuttal. In the context of this sort of hearing, the term "rebuttal" refers to the right to call witnesses to address new information or issues that the student raises which were not addressed by administration witnesses during the administration's case-in-chief.

Findings Of Fact, Conclusions And Decision (See Forms SC-11, SC-12, SC-13)

At the conclusion of the hearing, either in the presence of the student and his/her parents or shortly thereafter, the hearing officer must make a decision. Even if the decision is made at hearing, a written decision must also be prepared. When dealing with "exceptional misconduct" (meaning conduct which

allows the administration to issue a long-term suspension without having earlier applied short-term suspensions or some other form of corrective action to remediate the misbehavior), the hearing officer is free to grant exceptions in cases involving "...extenuating and/or exceptional circumstances..."   Otherwise, unless the administration and the student and/or his parent has consented, the hearing officer should not modify the terms of the suspension as issued by the administration. 

Instead, the hearing officer should either uphold the suspension or reject it. As the hearing winds down, if the hearing officer wants to have authority to modify, he/she should ask the parties for that authority and it will normally be given by both.

The term "findings of fact" refers to events in the historical pattern. This would include findings as to what the student did or did not do, e.g. "Bill did initiate a fight with a fellow student, Sam, in the hallway at [name of building] on the [date and time]." It also includes a summary recitation of what happened next, e.g. "Mr. [name of disciplinarian] met with Bill on the [date] and Bill admitted having started the fight but also said that [name of other student] had used foul language towards Bill's sister and Bill's sister had asked him to do something about it."

The findings also include what was done, e.g. "On [date] Mr. [name of administrator] issued a notice of long-term suspension, on [date] Mrs. [parent] asked for this hearing and on [date] the undersigned heard this matter. Hearing was timely."

The conclusions often get mixed up to some extent with findings; do not worry too much about it. In general, the term 'conclusions' means a summary recitation of the pertinent standards. For example, "The [name of school] handbook indicates that fighting is a serious offense, also fighting is prohibited by school district policy [number]." Also, for example, "the notice of suspension was issued in the manner called for in WAC 180-40-265 and this action complies with WAC 180-40-260."

The decision can be quite simple, e.g. "I find for the administration and uphold the suspension as issued" or it can be quite detailed.

Although not specifically addressed in the WAC detailing hearing procedures, we do recommend that the hearing officer include in his or her decision an outline of what the student and/or parents must do to appeal the decision to the school board.

When The Suspension Begins To Take Effect

A long-term suspension does not take effect until:

a) the hearing officer's decision has been issued and

b) the expiration of three (3) school business days following that issuance. The date on which the decision was issued is not counted. Therefore, if the decision is issued on day one, the suspension can become effective on day five, school business days two through four being the days during which appeal can be taken to the school board.

A student may elect to ask that a suspension become effective earlier and the hearing officer may choose to allow that. This would be done when the student and his/her parents decide not to appeal to the school board and the hearing officer's decision should specify that the appeal has been waived.

When a hearing officer finds that due to a misunderstanding on the part of either the student or parents, the suspension has already had some effect by the time of hearing, the hearing officer can give credit for time already served on the suspension. As this outline probably shows by its length alone, these procedures are detailed and often misunderstood by students and by parents. A student who has received a "notice of suspension" might believe that he or she cannot attend a school dance or athletic contest or other outing and forego the opportunity to attend or a parent might believe the student cannot attend or a parent might even "ground" the student as soon as the "notice of suspension" arrives. These factors can be considered by the hearing officer in determining whether or not to give credit for time served.

In the event the hearing officer chooses to retain jurisdiction and effectuate some sort of probation the decision remains appealable to the school board in the manner set forth above. In that circumstance, we are of the opinion that a) if jurisdiction is retained by the hearing officer and b) events do not go as planned and the matter returns for further consideration of the hearing officer, then c) the hearing officer should issue a supplementary decision and d) that supplementary decision is appealable by the student and/or his parents to the school board in the manner and during the time limits set forth above.

Therefore, a student and/or parents who forego an appeal during a retention of jurisdiction period have not lost entirely their right to appeal to the school board. However, they have lost part of it because they will not be able, in that circumstance, to appeal the hearing officer's initial decision to retain jurisdiction and establish some form of probation; instead, all they will be entitled to appeal is the hearing officer's decision on facts which developed after the hearing was finished and his/her initial decision was issued.

S.3.1.8	Appeal To The Board Of Directors

The school board may hear the long-term suspension hearing itself. This is not common and when it occurs, the following does not apply. Instead, provisions of Sec. S.1.3.9 Appeal To The Courts (following) applies.

When a long-term suspension is appealed to the school board, the imposition or start of the suspension is delayed pending the appeal.

When a notice of appeal to the school board is received, the school board has choices as to how it will hear the matter. In order to make those choices, the law prescribes an "informal conference," but at the same time, it provides that the evidence may be taken at the "informal conference." The key to this first meeting is the reference to the student and/or parent being given "...the opportunity to present such witnesses and testimony as the board deems reasonable..."

This does not mean that the board has to listen to the whole case over again at that point in the proceedings. It might, for example, choose to hear only from the student him or herself at this conference. It might choose to hear no more than argument from the student or his/her parent or his/her legal counsel. The board can essentially do whatever it likes at this juncture but, if it fails to assert itself, it should expect the student and/or his parents to seize the moment and in that circumstance, it (the board) should expect to hear the entire case over again as if there had been no earlier hearing at all.

In the event matters get to this level, we strongly recommend that legal counsel be present to advise the school board. Usually, when a suspension reaches this level there are direct or at least indirect charges being made against school officials. Those charges can trigger employee rights to open hearing and inadvertently turn a student discipline hearing into an employee discipline hearing.

In and of itself, by using the term "informal conference" WAC 180-40-315 presupposes that the appeal is a quasi-judicial matter between named parties, meaning one in which the school board will sit in judgment and the parties are the administration (who issued the notice of long-term suspension) and the student, parent(s), guardian(s) who are responding to it. Thus, the right of a public officer or employee to have complaints heard in public and the right of the administration and student and student's parent(s) or guardian(s) to have a suspension appeal disposed of in private can compete.

At this "informal conference" there is a question as to who can and cannot attend. Obviously, the student and his or her parent(s) or guardian(s) can attend. If they have legal counsel, that person can attend. Beyond that, there is a question as to whether the student and his or her parent(s) may invite witnesses and supporters to attend, and the WAC does not address the issue. We believe that beyond those persons already mentioned, the school board can comfortably restrict attendance at the "informal conference" but, again, it is helpful to have the school attorney present to deal with those sorts of issues. However, school boards are elected. That often drives the alternative, which of course, is to let what wants to become a circus become a circus; even then though there is a need for some management and protection for students and staff.

At the informal conference, the school board has choices. A tape recording should have been made at the hearing level and exhibits should have been received and should still be available for the board. A school secretary can be tasked with responsibility to prepare a transcript of the proceedings at the long-term suspension hearing and the school board can choose to use this record rather than take additional testimony or the school board can choose to hold a 'de novo' (meaning anew, over again) hearing without regard to the earlier hearing, or the school board can choose to mix the two concepts.

(Import text STUCON.003 here.)