Rick Boothby Esq Kids Strong Conference 2013 945 1045 am DISCLAIMER Today we are necessarily speaking in generalities rather than specifics The information provided is not legal advice ID: 539699
Download Presentation The PPT/PDF document "Red Flag Issues in Student Discipline" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
Red Flag Issues in Student Discipline
Rick Boothby, Esq.
Kids Strong Conference 2013 9:45 – 10:45 a.m.Slide2
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Information in this presentation may quickly become outdated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 attorneySlide3
E-UpdatesSlide4
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-NewsletterSlide5
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
issueSlide6
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 mattersSlide7
Your Questions
Please interrupt me with your questionsSlide8
Survey of Audience
Number of ______ in the room today
Classroom Aides?
Teachers?
Principals/Assistant Principals?
Central Office Administrators?
Other?Slide9
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)Slide10
An Incident is Reported to You
What do you do?
Investigation
Informal Hearing
Notices to Parents
Notices to OthersSlide11
Investigations
Witness interviews
Witness statements (written)
Searches of students and their property
Reports: just the factsSlide12
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 factsSlide13
Penalty less than suspension
In-school suspension
Denial
of
privileges
Confiscation of inappropriate personal propertySlide14
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
p
olicy and/or
s
tatute violated by student
Should include whether principal is seeking expulsion as wellSlide15
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 hoursSlide16
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)Slide17
Expulsions
Mandatory (shall)
Sort of
JM
v. Webster County BOE
Permissive (may)Slide18
Principal Board
OFFENSE
SUB-SECTION
SHALL SUSPEND
MAY SUSPEND
SHALL EXPEL
MAY EXPEL
Battery of a School Employee
(a)
■
■
Weapons at School
(a)
■
■
Sale of Narcotics
(a)
■
■
Felony
(b)
■
■
Possess Controlled Substance
(b)
■
■
Threat to Injure
(c)
■
■
Willful Disobedience
(c)
■
■
Possess Alcohol
(c)
■
■
Profane Language
(c)
■
■
Deface Property
(c)
■
■
Physical Altercation
(c)
■
■
Habitual Violation of Rules
(c)
■
■Slide19
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 Slide20
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)
N
o 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 evidenceSlide21
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 evidenceSlide22
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 daysSlide23
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 environmentSlide24
Appeals
Circuit Court
Federal Court
Office for Civil Rights (discrimination)Slide25
Special Education Students
A different set of rules altogether
Change of placement rules
As yet unidentified students
Manifestation DeterminationSlide26
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; andSlide27
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
.Slide28
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. Slide29
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 courtsSlide30
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 BoardSlide31
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. Slide32
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 ! Slide33
Top Ten List
10. Get it in writing
Signed and dated statementsSlide34
Top Ten List
9. All administrators need a digital camera (or good camera phone)Slide35
Top Ten List
8
. Separate witnesses before asking questions or making any statements
No group interviewsSlide36
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?Slide37
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 Slide38
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 chargeSlide39
Top Ten List
4
. Do not use school resource officers as administrators
Serious 4
th
Amendment Issues
N.C
. v. Kentucky
, No. 2011-SC-000271 (
Ky
.
Apr
. 25, 2013)
Does not apply in WV . . . Yet
H
igh
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. Slide40
Top Ten List
3
. Always determine whether the student has an
IEP
or has been referred for special education BEFORE imposing disciplineSlide41
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 counselSlide42
Top Ten List
1. Nice guys and gals finish lastSlide43
Remaining QuestionsSlide44
Red Flag Issues in Student Discipline
Rick Boothby, Esq.
Kids Strong Conference 2013 9:45 – 10:45 a.m.