Red Flag Issues in Student Discipline

1. Red Flag Issues in Student Discipline Rick Boothby, Esq. Kids Strong Conference 2013 9:45 – 10:45 a.m.

2. DISCLAIMER • Today we are necessarily speaking in generalities rather than specifics • The information provided is not legal advice • Information in this presentation may quickly become outdated • Always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter • Do not act or rely upon the information contained in this presentation without seeking the advice of an attorney

3. E-Updates

4. E-Newsletter Mailing List • E-Newsletter Mailing List • Send an email to Sarah Plantz: • splantz@bowlesrice.com • Tell Sarah: • Who you are • Your position in public education • Your school board’s name • That you want to receive the E-Newsletter

5. Limitations • We only have 1 hour together • We do not have sufficient time to cover any of these subjects in depth • Issue spotting is our goal • i.e., knowing when something is, or is not, an issue

6. Our Goal Today • Issue Spotting • Review of procedural rules related to processing a student suspension and/or expulsion. • Review separate set of student discipline rules that apply to special education students. • To better understand how the Courts view student discipline matters

7. Your Questions • Please interrupt me with your questions

8. Survey of Audience • Number of ______ in the room today • Classroom Aides? • Teachers? • Principals/Assistant Principals? • Central Office Administrators? • Other?

9. The Law • Safe Schools Act, WV Code 18A-5-1a • WV SBOE Policy 4373 (and your county Student Code of Conduct policy) • WV SBOE Policy 2419 • U.S. & WV Constitution (Due Process)

10. An Incident is Reported to You • What do you do? • Investigation • Informal Hearing • Notices to Parents • Notices to Others

11. Investigations • Witness interviews • Witness statements (written) • Searches of students and their property • Reports: just the facts

12. Informal Hearing • Conducted by principal immediately after he/she determines alleged acts of student would be grounds for suspension • Exceptions • Telephonic notice to parents (if possible) before informal hearing begins • Statement of the charges • Chance for student to admit or deny • Explanation of the evidence against student • Chance for student to give his/her version of the facts

13. Penalty less than suspension • In-school suspension • Denial of privileges • Confiscation of inappropriate personal property

14. Written Notice to Parents • If principal decides to impose suspension: • SAME DAY written notice to parents by U.S. Mail • Should include the length of suspension imposed and the reasons therefore • Should include the specific policy and/or statute violated by student • Should include whether principal is seeking expulsion as well

15. Notice to Others • If principal decides to impose suspension: • Notice to County Superintendent (timing is somewhat unclear) • Notice to Faculty Senate at its next meeting after the suspension • WVEIS entry must be made within 24 hours

16. Suspensions • 10-day OSS, maximum penalty a principal can impose • School boards may impose longer OSS • Round about way of doing this • At the conclusion of an expulsion hearing, long suspensions may be imposed by the Board instead of expulsion (depending on the circumstances)

17. Expulsions • Mandatory (shall) • Sort of • JM v. Webster County BOE • Permissive (may)

18. Principal Board

19. Expulsions • Written notice to parents regarding hearing • Date/time of hearing (10-day rule) • Charges against student • Recommendation that will be made at hearing regarding expulsion • Dangerous student? • Description of evidence

20. Expulsions • Hearing before the Board of Education • Within the suspension period (10 school days) • Continuances • At request of student for good cause (student remains suspended) • No continuances for school system except: • Proceedings to obtain a requested subpoena • Delay in service of subpoena to witness • Must be recorded by mechanical means unless court reporter • Subpoenas: superintendent may apply to circuit court • Proof: by a preponderance of the evidence

21. Expulsions • Hearing before the Board of Education • Right to face accusers? Not exactly • Right to cross examine witnesses against him/her • Might only be administrators recounting what student witnesses told them • Some debate about this • Right to be represented by counsel (at their own expense of course) • Right to call witnesses and introduce evidence

22. Expulsions • Calendar year expulsion (365) • Three deadly sins • Sale of narcotic • Battery of a school employee • Deadly weapon possession • School year expulsion • Much longer list of offenses • Suspension for number of days beyond initial 10 days

23. Expulsions • Alternative Education • The mandatory requirements of a “thorough and efficient system of free schools” is found in Article XII, Section 1 of the West Virginia Constitution • Education is a fundamental constitutional right in WV, even if you are expelled • Dangerous Student Exception, rarely invoked • AE need not duplicate what is provided in the regular school environment

24. Appeals • Circuit Court • Federal Court • Office for Civil Rights (discrimination)

25. Special Education Students • A different set of rules altogether • Change of placement rules • As yet unidentified students • Manifestation Determination

26. Special Education Students • Manifestation Determination • Whenever considering disciplinary action that will result in a change of placement, the district must: • Provide same day written notice of the removal, PWN, and the procedural safeguards notice to the parent/adult student of the disciplinary action to be taken; and

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

28. Special Education Students • 45-day IAES placement regardless of MD for • Carries or possesses a weapon at school, on school premises or at a school function; or • Knowingly possesses, carries, or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises or at a school function; or • Inflicts serious bodily injury to another person at school, on school premises, or at a school function.

29. Special Education Students • IAES: no one size fits all, consider IEP & related services, needs of child, etc. • Continued provision of IEP services in alternative environment • Due Process Complaints, appeals to federal courts

30. The Courts • West Virginia Supreme Court of Appeals • J.M. v. Webster County BOE (2000) • Very important case • Unusual facts • The roles of principal, superintendent and Board

31. The Courts • Barnes v. Zaccari • student Haden Barnes' protest of Valdosta State's decision to build two parking structures.  The protest consisted of a collage of photographs posted on Facebook, distribution of flyers voicing objection to the parking garages, and emails to President Ronald Zaccari and board members.  • President ordered Barnes "administratively withdrawn" from the school on the grounds Barnes represented a "clear and present danger."   • No notice, other than the notice of dismissal, was provided.  Nor was there an opportunity to be heard. 

32. The Courts • Barnes v. Zaccari • In September 2010, the court granted Barnes partial summary judgment finding President Zaccari had failed to provide due process to Barnes. • In February 2012, the U.S. Court of Appeals for the Eleventh Circuit affirmed in part, reversed in part, and remanded.   • Upon remand and trial, a jury found the president personally liable for $50,000 on February 1, 2013 !

33. Top Ten List • 10. Get it in writing • Signed and dated statements

34. Top Ten List • 9. All administrators need a digital camera (or good camera phone)

35. Top Ten List • 8. Separate witnesses before asking questions or making any statements • No group interviews

36. Top Ten List • 7. Forms, forms, and more forms • Saves time • Cops use them, courts use them, insurance companies use them • Wouldn’t you like to use forms too?

37. Top Ten List • 6. Know the charge • Not every bad act violates the Student Code of Conduct/Safe Schools Act • Be able to cite chapter and verse

38. Top Ten List • 5. Informal hearing with prior notice to parents • Invite parents to attend • Invite parents to participate by phone • Provide reasonable delay to give parents time to participate • But don’t put parents in the driver’s seat • Remember who is in charge

39. Top Ten List • 4. Do not use school resource officers as administrators • Serious 4th Amendment Issues • N.C. v. Kentucky, No. 2011-SC-000271 (Ky. Apr. 25, 2013) • Does not apply in WV . . . Yet • High school student detained in the school office for questioning by an assistant principal regarding giving prescription drugs to a classmate • school resource officer present during questioning • RULING: Student was entitled to Miranda warnings before the school official began the questioning.

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

41. Top Ten List • 2. If the student has a lawyer at the Board hearing, the school system needs to have a lawyer there too • Require advanced notice if student will be represented by counsel

42. Top Ten List • 1. Nice guys and gals finish last

43. Remaining Questions

44. Red Flag Issues in Student Discipline Rick Boothby, Esq. Kids Strong Conference 2013 9:45 – 10:45 a.m.