Due Process Protections for Public School Students Facing Discipline
| Publication year | 2015 |
| Pages | 67 |
| Citation | Vol. 44 No. 10 Pg. 67 |
Special Issue: Education Law.
Due Process Protections for Public School Students Facing Discipline.
By Igor Raykin.
About the Author
Igor Raykin is a partner with the full-service firm of Kishinevsky & Raykin, LLC. Igor is a former teacher and high school dean who spent 10 years working in public education prior to becoming an attorney, and he now specializes primarily in education law—(720) 748-8888, igor@coloradolawteam.com.
Procedures are in place at both the state and federal levels to ensure that students who face disciplinary action in public schools receive due process. How much process is due depends on whether the student is in general education or special education.
Of the thousands of Colorado students attending kindergarten through the 12th grade, most will not face suspension or expulsion from schools. When students are exposed to the disciplinary process, due process protections exist to challenge the process. The scope of the challenge varies depending on whether the student is a general education student or a special education student.
The due process rights of general education students are limited as set forth in Colorado's School Attendance Law of 1963.[1] Students with mental, physical, and/or emotional disabilities necessitating a special plan to ensure they receive a proper education are classified as special education students. The rights of special education students go beyond what the state statute affords and are found primarily in two federal laws: the Individuals with Disabilities Education Act (IDEA)[2] and Section 504 of the Rehabilitation Act of 1973.[3]
An attorney representing a student in a disciplinary proceeding in a public school, including a charter school, must determine whether his client is a general education or special education student. Any student who has an Individualized Education Program (IEP) or a 504 Plan is a special education student. Different legal rights exist for special education students than for general education students.
Discipline in General
There are many different forms of school discipline. For example, the discipline could involve staying after school, performing some type of community service, or in-school detention. This article focuses on incidents in which schools undertake to suspend or expel a student and an attorney becomes involved in the disciplinary process.
Suspension is a temporary removal of a student from school. A suspension may vary from one to five days and be extended to a maximum of 25 days.[4] Normally, suspensions do not exceed five days unless the school plans to expel the student. If a school suspends a student beyond five days, it is likely it will expel the student. Expulsion is removal from school for a period exceeding 25 days and up to one calendar year.[5] After expulsion, the student may have the opportunity to attend an alternative school or engage in an online learning program.
Grounds for Suspension or Expulsion
CRS § 22-33-106 lists the types of behaviors that can result in suspension or expulsion.[6]Some of these behaviors are quite specific, such as destroying school property, taking a weapon to school, assault, or using or selling drugs at school. However, there are broad catch-all provisions in the statute that are frequently used as a basis for disciplining a student. The most common of these is discipline for "behavior on or off school property that is detrimental to the welfare or safety of other pupils or of school personnel."[7] No matter what a student has been accused of, whenever expulsion is sought, the school will generally include an allegation of "detrimental behavior" in its recommendation for expulsion.
"Detrimental behavior" is not defined in the statute.[8] School districts tend to interpret this phrase as broadly as possible. Schools have authority to discipline students for conduct not occurring on school grounds if the school believes the conduct had a detrimental effect on the school.
What may be considered detrimental behavior can vary from district to district and from school to school. Some schools may suspend a student for smoking marijuana on school grounds, while others may move forward with expulsion under the same facts. Schools have broad discretion in determining what constitutes a reasonable basis for suspending or expelling a student.
Suspension for General Education Students
When a student is suspended, the school must notify the parent of the suspension, the grounds for suspension, the period of the suspension, and the time and place for the parent or guardian to meet with the school to review the suspension.[9] This notice may be verbal or written. Normally the student will not be readmitted until her parents meet with school officials. Once the student returns to school, she may be placed on a remedial discipline plan, which may take the form of a behavior contract. However, this plan or contract is not legally binding on the parties under normal contract law.
A student who is suspended for less than 10 days has a right to an "informal hearing" with the principal or a designated school administrator before the suspension begins.[10] An "informal hearing" is merely a conversation between the student and a school administrator. A student suspended for more than 10 days has a right to request a review of the suspension before a school district official. This official is anyone the district designates for this purpose such as the principal or a vice principal.
The board of education in every school district is to establish an alternative to suspension that allows a student facing suspension to remain in school. The conditions for this alternative include an agreement by the student's parent(s) to attend the student's classes with the student for a period of time specified by the school.[11] In practice, this procedure rarely occurs.
Attorneys are not generally involved in the suspension process but are more often brought in when a student is facing expulsion. However, schools will usually accommodate parents if they wish to retain an attorney to assist in responding to suspension.
Expulsion for General Education Students
A general education student who is facing expulsion has the option of a hearing before a hearing officer.[12] A school district attempting to expel a student will send a letter to the student's parents asking if they want a hearing and setting a deadline for their request. If the parents do not request a hearing, the student will be expelled.
Often parents will remove their child from the school district before the expulsion hearing takes place believing their child will be able to attend a different public school in another district. This is a mistake, since the process does not work that way. If a parent does not attend an expulsion hearing, the district may expel the student and usually does. Whether with or without a hearing, once the student is expelled, no other public school in the state is obligated to enroll the student during the pendency of the expulsion. There is no advantage to removing a student from school before an expulsion hearing.
If the parents or their attorney request a hearing, the hearing must take place before a hearing officer. There are no mandated qualifications to be a hearing...
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