1. Student Suspension: Due Process and Equal Protection Randall Ranes, Administrator Steve Castro, Supervisor Erin Johnston, Dean Student Services Department Bakersfield City School District October 2004

2. Presentation Goals and Objectives n Define key legal words applicable to student suspension n Define the parameters of student suspension from school n Identify the employee(s) with the authority to suspend from school n Compare and contrast suspension from school with suspension from the classroom n List and describe student suspension due process rights n Define when the school has jurisdiction to suspend a student, apply the jurisdiction authority to fact patterns, and confirm limits of jurisdictional authority n Give an overview of the grounds for suspension and how the elements of the illustrated offenses may be applied in a suspension n Describe limits (days and grade levels) on number of suspension days

3. FAIR STEPS TO REACH THE DECISION FAIR, EQUAL, AND UNIFORM DECISIONS

4. Fourteenth Amendment (U.S. Constitution) “... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens...; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person... the equal protection of the laws.” EJ

5. Student Discipline: Due Process n Public education is a student property interest; a student can legally be removed from education only with due process of law n The law requires student discipline to be implemented so every student receives equal protection EJ

6. Student Due Process A student receives due process when a fair decision has been made by the school staff in a fair, equal, uniform manner. EJ

7. Types of Due Process n Substantive due process challenges the fairness of a decision itself n Procedural due process challenges the manner in which a school makes a particular decision EJ

8. Substantive Due Process Examples n Was it fair to suspend a student for five days for backtalk? n Was a student treated differently (e.g., suspended for more days) because of gender, race, color, religion, ancestry, national origin, ethnic group, marital or parental status, physical or mental disability, sexual orientation, or the perception of one or more of such characteristics (BP 300.27 – Nondiscrimination)? n Was the penalty (e.g., 2 days of suspension) disproportionate to the overall offense? EJ

9. Procedural Due Process Examples n Were the student and parent informed (effective notice) in advance of the school rules? n Was the decision to suspend preceded by an appropriate investigation? n Was the student given the evidence against him and an opportunity to tell his side of the story before being suspended? EJ

10. Suspension Defined Removal of a student from ongoing instruction for adjustment purposes (Education Code Section 48925 [d]). Removing a child from school for disciplinary reasons for more than the remainder of the day shall be considered a suspension (Suspension, BP 601.3).

11. “Suspension" does NOT mean: n Reassignment to another education program or class at the same school where the student will receive continuing instruction for the length of day prescribed by the Board for students of the same grade level (On-campus suspension/in- school suspension) n Referral to a certificated employee designated by the principal to advise students n Removal from the class, not more than once every five school days, but without reassignment to another class or program, for the remainder of the class period without sending the student to the principal or designee as provided in Education Code Section 48910 (Suspension from class by teacher) ( Education Code Section 48925)

13. How do you apply the discipline code fairly, equally, and uniformly? Start with: n Advance notice to parents and students of school rules n Effective notice n Evidence from the investigation supports the findings or determination (i.e., did or did not do it) n The determination or findings support the specific decision (e.g., suspend for 2 days)

14. Notice of Rules to Parents and Students n At the beginning of each school year, the principal shall ensure all students and parents/guardians are notified in writing of all school rules related to discipline, suspension, and expulsion (BP 601.3 - Suspension; BP 601.7 – School Discipline; BP 300.56 – Parent Notifications) –Guide for Parents and Students –Board Policy –Statutory and Case Law (Controlling, but not part of notice)

15. Who has authority to suspend? n Governing board n Superintendent n Principal or principal’s designee n Principal's designee means one or more administrators or, if there is not a second administrator at one school site, a certificated person specifically designated by the principal, in writing, to help with disciplinary procedures. Only one such person may be designated at any time as the principal's primary designee and only one such person may be designated as secondary designee for the school year. The names of such persons shall be on file in the principal's office (Education Code Section 48911)

16. Alternatives to Suspension n Suspension shall be imposed only when other means of correction fail to bring about proper conduct (Education Code Section 48900.5; statute also includes exceptions to this rule) n Whenever possible, alternatives to suspension or expulsion will be imposed against any student who is truant, tardy, or otherwise absent from school activities (Education Code Section 48900)

17. Jurisdiction for Disciplinary Action n Pupil may be suspended/expelled for committing an act listed in the law if the act is related to school activity/attendance occurring at any district school or within any other school district, including but not limited to (Education Code Section 48900): n While on school grounds n While going to or coming from school n During the lunch period, whether on or off the school campus n During, going to, or coming from a school-sponsored activity

18. Jurisdiction Decisions: Example One FACT PATTERN: Fred and Jose are walking home after school. Fred reaches his home, finds his BB gun, and catches up with Jose, who is still on his way home. Fred shoots Jose in the arm with a BB. Which student is the focus of the jurisdictional analysis?

19. Jurisdiction Decisions: Example Two FACT PATTERN: Maria, on her way to school, stops off at her friends home. Her friend gives her some marijuana to hold while her friend finishes her grooming activities. Later, on the way to school, Maria returns the marijuana to her friend. Does the school have jurisdiction to discipline Maria?

20. Jurisdiction Decisions: Example Three FACT PATTERN: Luis does not attend school on the day he decides to get even with Jack. Close to when school is to let out, Luis walks toward the campus. About a block from the campus he locates Jack and physically attacks Jack. Jurisdiction? What if he waits for Jack at a bus stop?

21. Suspension/Due Process Checklist n Reasonable suspicion the student committed prohibited offense n Conduct an investigation with all relevant witnesses n Obtain/create physical evidence (e.g., contraband) when available

22. The “Determination” n A student may not be suspended from school or recommended for expulsion unless... the principal of the school in which the student is enrolled determines that the student has committed an act as defined pursuant to any of the Education Code Section 48900 et seq. (emphasis added)

23. How does one reach a determination? n Investigation produces facts (evidence) n Facts support the finding or determination the student has committed a prohibited act n Code section aligns with determination (in District, aligns with the “particulars” of the suspension)

24. Facts to Acts n Was prohibited conduct committed? n If so, what recognized offense was it? n What is a reasonable, fair, and uniform disciplinary action?

25. How many days may a student be given? n Pupils may be suspended up to five (5) days for any one instance n The number of suspension days imposed should be determined by guidelines in the district discipline code and the severity of the offense n A student may be suspended from school for not more than 20 school days in any school year, unless for purposes of adjustment a student enrolls in or is transferred to another regular school or alternative education school, in which case, suspension shall not exceed 30 days in any school year Note: The restriction on the number of days of suspension does not apply when the suspension is extended pending an expulsion (Education Code Section 48903 and 48911) (Suspension – BP 601.3) SC

26. Charges Applicable Only to Specific Grade Levels n Only students in grades 4 through 8 may be suspended and recommended for expulsion for any of the acts listed below: –Committed sexual harassment as defined in Education Code Section 212.5 (Education Code Section 48900.2) –Caused, attempted to cause, threatened to cause, or participated in an act of hate violence as defined in Education Code Section 33032.5 and Penal Code Section 422.6 (Education Code Section 48900.3) –Intentionally engaged in harassment, threats, or intimidation directed against school district personnel or students that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of school personnel or students by creating an intimidating or hostile educational environment (Education Code Section 48900.4) SC

27. In illustration, past suspensions have shown a misalignment of the discipline code to the “particulars” E.C. 48900 (k) was used for: n Disruption n Fighting n Noncompliance n Sexual battery n Caused physical injury n Obscene act n Sexual harassment n Willfully used force or violence SC

28. Suspensions have also been processed without a code entry. Law requires parents to receive written notice of suspension identifying the offense committed (EC 48900.8) (i.e., the code section) and to receive both the reasons for, and duration of, the suspension (S. v. Board of Education [1971]). SC

29. Matching the particulars in the suspension to the Education Code and Discipline Code. SC

30. FAIR STEPS TO REACH THE DECISION FAIR, EQUAL, AND UNIFORM DECISIONS Suspensions NEED A CLEAR FACT PATTERN (EVIDENCE) EVIDENCE MUST SUPPORT FINDINGS FINDINGS MUST SUPPORT DECISION SC

31. BARKING UP THE RIGHT TREE n Fair, uniform application of the discipline code starts with full knowledge of the code n All offenses (and elements) n The meaning of each word SC

32. Resources n Appendix in Student Services Handbook (Hard copy and electronic copy) provides: –Listing of Education Code acts (legal description and citations) –Corresponding computer codes n Glossary in Student Services Handbook provides: –Definitions of legal terms SC

33. Forewarned is Forearmed: Front Loading Fairness, Equality, and Uniformity E.C. 48900 (a)(1) a.1 Caused, attempted to cause, or threatened to cause physical injury to another person [D]. Code = 48900 (a) (1) a.1 = District computer code for suspension [D] = Disruptive behavior “D” SC

34. Cause means... Attempt means... Threaten means... Physical injury means... Another person means... SC

35. Willfully used force or violence upon the person of another, except in self-defense. Willful means... Used means... Force or violence means... Upon the person of another means... Self-defense means... SC

36. How are Education Code Section 48900 (a) (1) and (a) (2) different? The same? n Willful only in (a)(2) n Threat not covered in (a)(2) n Attempt: Overlap? SC

37. Mutual Consent Fight (See Supplementary Definitions) Battery Concept Assault (or attempted battery) Attack Attempted/Caused physical injury SC

38. Fact Pattern or “Particulars”: “Student Bit Another Student in Class.” Most appropriate code is? Code used: 48900(k) (Not Fighting) SC

39. Particulars: “Two Other Students Were Involved in a Fight. (Name of Student) Hit One of the Girls While the Fight Was in Progress.” Most appropriate code? Code used: 48900(k) (Fighting) SC

40. Particulars: “Kicked Another Student.” Most appropriate code? Code used: 48900(k) (Fighting) SC

41. Particulars: “Threatened a Student. Nearly Fought at Lunch Recess.” Most appropriate code? Code used: 48900(k) (Fighting) SC

42. Particulars: “Excessive Referrals. Fighting in Class. (Name of Student) Was the Aggressor. Kept Throwing Punches While Other Student Was Being Restrained.” Most appropriate code? Code used: 48900(k) (Fighting) SC

43. Particulars: “(Name of Student) Banged a Girl in the Head With a Door.” Most appropriate code? Code used: 48900(k) (Not Fighting) SC

44. Particulars: “(Name of Student) Was Threatening to Beat Up 2 Other Students.” Most appropriate code? Code used: 48900(k) (Not Fighting) SC

45. Possessed, sold, or otherwise furnished any knife, explosive, or other dangerous object. n Possess n Sell n Furnish n Any n Knife n Explosive n Dangerous object SC

46. Particulars: “(Name of Student) Was in the Bathroom With Another Boy Playing With a Knife. They Were Pretending to Stab Each Other.” Most appropriate code? Code used: Possessed, sold or otherwise furnished any knife, explosive, or other dangerous object (48900[b]) SC

47. Unlawfully possessed, used, sold, or otherwise furnished, or under the influence of, any controlled substance listed in the Health and Safety Code, an alcoholic beverage, or intoxicant of any kind. n Unlawfully n Used n Under the influence of* *DAR - Drug Abuse Recognition Training SC n Controlled substance n Alcoholic beverage n Intoxicant of any kind

48. Unlawfully offered, arranged, or negotiated to sell any controlled substance, an alcoholic beverage, or an intoxicant of any kind and then either sold, delivered, or otherwise furnished a “look-alike” represented as a controlled substance, alcoholic beverage, or intoxicant (emphasis added). n Offered n Arranged n Negotiated n Delivered n Look-alike n Represented Note: This offense involves the fraudulent sell of a drug look-alike

49. A student who simply offers to sell a look alike is not in violation. A student who possesses a look-alike or thinks he/she possesses a look-alike is not in violation. Violation only if ALL THREE - a student (1) offers/arranges/negotiates to sell (2) delivers, and (3) has represented the look-alike as a controlled substance.

50. Committed or attempted to commit robbery or extortion. n Committed n Robbery (Not stealing) n Extortion

51. Caused or attempted to cause damage to school property or private property. n Damage n School property n Private property Is this different than vandalism?

52. Particulars: “Using Profanity Towards a Girl Student.” Most appropriate code? Code used: Committed an obscene act or engaged in habitual profanity or vulgarity (48900[i])

53. Particulars: “Dropped His Pants, Showing His Bare Backside (Note: Had More Referrals for Similar Conduct).” Most appropriate code? Code used: 48900(k) (Not Fighting)

54. Particulars: “Pulled Another Student's Pants Down.” Most appropriate code? Code used: 48900(k) (Not Fighting) Note: Days given: 1

55. Disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties. (Divided into fighting and not fighting) n Disrupted n Defied n Valid authority n School officials n Performance of duty

56. Particulars: “Constant Disruption of School.” Most appropriate code? Code used: 48900(k) (Not Fighting)

57. Committed sexual harassment - Grades 4 - 8. n Sexual harassment (c.f. Board Policy, Sexual Harassment of or by Students, BP 601.6)

58. Brandishing a knife at another person. n Brandishing n Knife (Note: Knife definition specific to this act)

59. Suspension/Due Process Checklist (Covered above/pick up here) n Reasonable suspicion the student committed prohibited offense n Conduct an investigation with all relevant witnesses n Obtain/create physical evidence (e.g., contraband) when available EJ

60. Suspension/Due Process Checklist (Continued) n Determine whether student committed a suspendable and expellable offense n Contact, or make a reasonable effort to contact, the parent/guardian (phone or in person) and review what has happened n Review the written notice(s) the parent will be receiving EJ

61. Suspension/Due Process Checklist (Continued) (Principal/Administrative designee) Initially determine if the student committed a prohibited offense. Consider if alternatives to suspension may be appropriate. If not, proceed. Unless an emergency exists, hold information conference with student: n Inform student of the reason for the proposed disciplinary action and the evidence against him/her ( The “notice of the suspension” must correspond to the conduct described to the student) n Give the student an opportunity to present his/her version and evidence in support of his/her defense (If student does not deny allegations, then it is unnecessary for the student to tell his side of story) Note: No right for student to know the identity of his accusers Granowitz v. Redlands Unified School District ([2003] 105 Cal.App.4th 349) EJ

62. Notice of Suspension: Requirements The notice of suspension shall state (a) the reasons for suspension, (b) the section, subsection, and, when appropriate, the subdivision of Education Code Section violated by the student (Education Code Section 48900.8), and (c) date and time when the student may return to school. EJ

63. May a suspension be challenged? n No specific appeal of a suspension is listed in applicable law. However, a suspension is a student record n Parents have the right to challenge the content of a student record if they believe the record to be: – inaccurate, –an unsubstantiated personal conclusion or inference, –a conclusion or inference outside the observer’s area of competence, –not based on the personal observation of a named person with the time and place of the observation noted, –misleading, or –otherwise in violation of the student's privacy rights (Education Code Section 49070) EJ

64. Limits to Suspensions n Pupils may be suspended up to five (5) days for any one instance n A student may be suspended from school for not more than 20 school days in any school year, unless for purposes of adjustment a student enrolls in or is transferred to another regular school or alternative education school, in which case, suspension shall not exceed 30 days in any school year. However, this restriction on the number of days of suspension does not apply when the suspension is extended pending an expulsion (Education Code Section 48903 and 48911) EJ

65. Suspension from Class and On- Campus Suspensions Provisions outside of suspension from school.

66. Removal from Class by a Teacher n A teacher may suspend any student from his or her class, for any of the acts listed in Section 48900 of the Education Code (a) through (p) for the day of the suspension and the day following (Education Code Section 48910) n When removing a student from his or her class, the teacher shall immediately report the suspension to the principal of the school and send the student to the principal for appropriate action. The student shall be appropriately supervised during the class periods from which he or she has been suspended (Education Code Section 48911.1) n No later than the day following, the teacher shall ask the parent or guardian of the student to attend a parent-teacher conference regarding the suspension. A school administrator, counselor, or psychologist may attend the conference if the teacher or the parent or guardian so requests n Since a teacher suspension is from the class and not the school, the student shall not be returned to the class from which he or she was removed during the period of the removal, without the concurrence of the teacher of the class and the principal (Education Code Section 48910). A student suspended from class shall not be placed in another regular class during the period of suspension. However, if a student is assigned to more than one class per day, he or she may be placed in any other regular classes except those held at the same time as the class from which the student was suspended (Education Code Section 48910) n The teacher of any class from which a student is suspended may require the suspended student to complete assignments and tests missed during the suspension (Education Code Section 48913 (BP 601.3, Suspension)

67. On-Campus Suspension Program n Pupils for whom an expulsion action has not been initiated and who pose no imminent danger or threat to the school may be assigned to a separate, supervised suspension classroom for the entire period of suspension. The following conditions shall apply (Education Code Section 48911.1): n The supervised suspension classroom shall be staffed according to law (i.e., suspended students are separated from other students, the supervised suspension classroom is staffed as any other classroom in the school) n The student shall have access to appropriate counseling services n The supervised suspension classroom shall promote completion of schoolwork and tests missed by the student during the suspension n Each student shall be responsible for contacting his/her teacher(s) to receive assignments to be completed in the supervised suspension classroom. The teacher shall provide all assignments and tests that the student will miss while suspended. If no such work is assigned, the person supervising the suspension classroom shall assign schoolwork n At the time a student is assigned to a supervised suspension classroom, the principal or designee shall notify the student's parent/guardian in person or by telephone. When the assignment is for longer than one class period, this notification shall be made in writing (Education Code Section 48911.1 [d])

68. Pupils with Disciplinary History: Duty to Notify Teachers n The principal is required to inform every certificated staff member with teaching or supervisory duties of each student who has engaged in, or is suspected of engaging in, any crime as verified by outside agency records and any suspendable or expellable act (Education Code Section 48900) placed in any school records except offenses of possession of tobacco or nicotine products n This information must be kept strictly confidential

69. Required Parental Attendance See “SUSPENSION” policy (BP 601.3)

70. Summary n Exercising the authority to suspend in a legally defensible manner as expected by the community n Minimizing complaints and successful challenges n Maximizing administrative authority