By Kirsch-Goodwin & Kirsch, PLLC, Arizona Education Attorneys
Discipline of students in Arizona public schools is covered
in Arizona Revised Statutes at Title 15 (Education), Chapter 8 (School
Attendance), Article 3 (Suspension and Expulsion of Pupils), Sections 15-840
through 15-844. In Arizona, all students
are required to comply with school rules and submit to the authority of
teachers and school administrators. A.R.S. § 15-841(A).
Students with IEPs and 504 Plans have extra
protections under federal and state laws when it comes to discipline. But the cornerstone of student discipline is balancing two separate rights of students: the
constitutional right to a public education, and the right to a safe and orderly learning environment. Procedures and laws in place to protect students from arbitrary and
wrongful discipline are necessary, as are procedures and laws to allow schools
to discipline disruptive and dangerous students.
First, let’s get the terminology down:
Suspension is the temporary withdrawal of
attending school for a specified period of time. It can be “short term” – up to ten (10) days,
or “long term,” eleven (11) or more days. A.R.S. § 15-840.
Expulsion is the “permanent withdrawal of the
privilege of attending a school unless the governing board [of the school
district or charter school] reinstates the privilege of attending the school.” A.R.S. § 15-840. Usually a student can re-apply for admission
after one year. Although education is a
right, note that the Arizona statute still calls it a “privilege.”
Students in Arizona may be expelled
for continued open defiance of authority, continued disruptive or disorderly
behavior, violent behavior that includes use or display of a dangerous
instrument or a deadly weapon (“anything designed for lethal use, including
a firearm”), use or possession of a gun, or excessive absenteeism.”
A.R.S. § 15-841(B). Students over age 16
and those who completed the course of study through tenth grade may be expelled
for excessive absenteeism. Id.
The law also allows school districts to expel students for actions other
than those listed in the statutes as the school district deems
appropriate.” Id.
A school district or charter school
“shall expel for a period of not less than one year” a
student who brings a firearm to a school, or a student who is determined to
have threatened an educational institution, except that the school district or
charter school may modify these expulsion requirements for a student on a case
by case basis. A.R.S. §§ 15-841(G) and
(H). These subsections “shall be
construed consistently with the requirements of the [IDEA].” Id.
The “Gun-Free Schools Act,” 20
U.S.C. § 1751, requires each state that
receives federal funds to have in effect a state law requiring expulsion from
school for not less than one year any student who brings a weapon to
campus. Arizona’s state law is A.R.S. §
15-841(G). However, schools are not
permitted or required to expel students with IEPs without adherence to the
procedural safeguards of the IDEA and the Gun-Fee Schools Act does not
eliminate the school district’s obligation to provide the student with a free
appropriate public education (FAPE) following the expulsion. Congressional guidance concerning state and
local responsibilities under Gun-Free Schools Act states that students with
disabilities removed from school pursuant to the Act must be provided with
alternative programming during the disciplinary exclusion, and the Act
specifically states that its provisions must be construed consistently with the
IDEA. Magyar By and Through Magyar v.
Tucson Unified School Dist., D.Ariz.1997, 958 F.Supp. 1423.
Students
in Arizona may be expelled for continued open defiance of authority, continued
disruptive or disorderly behavior, violent behavior that includes use or
display of a dangerous instrument or a deadly weapon (“anything designed for
lethal use, including a firearm”), use or possession of a gun, or excessive
absenteeism.” A.R.S. § 15-841(B). Students over age 16 and those who completed
the course of study through tenth grade may be expelled for excessive absenteeism. Id.
The law also allows school districts to expel students for actions other
than those listed in the statutes as the school district deems
appropriate.” Id.
There
are numerous sources of law governing student discipline, but no federal statutes. States’ Constitutions typically guarantee every child between five
and 18 years of age the right to an educ. But that right to education is of course impacted by school suspensions
and expulsions.
Schools districts and charter
schools have student codes of conduct that provide for multi-tiered, or
graduated, consequences, based on number of times the behavior occurred and the
severity of the behavior. The codes
identify the offenses or circumstances that either must (look for the word
“shall”) or may (permissive, not mandatory) either long-term suspension or
expulsion.
All students have a right to due process before
being suspended for more than ten (10) days.
That right to due process was established in 1975 in the Supreme Court
case, Goss v. Lopez, 419 U.S. 565 (1975). Dwight Lopez was a high school student in Ohio. In February 1971, a number of students were involved in a disturbance
in the school cafeteria causing property damage. Dwight
denied
he was involved, but he was suspended for
ten days before he could give his side of the story. Schools in Ohio were allowed to suspend or
expel a student for misconduct as long as their parents were informed of the
discipline and the reasons for it within
24 hours. A student who was expelled was allowed to
appeal the decision to the Board of
Education but a student who was suspended was not allowed to appeal. Dwight
and eight other students who were suspended brought suit in Federal District Court claiming violation of their 14th Amendment right to due process. The
14th
Amendment states that: [No State …shall] deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.” The
District Court ruled in favor of the students, and the school district appealed
the decision to the United States Supreme Court. The Supreme Court handed down its decision in January 1975 holding (declaring) that students facing
suspension “must be given some kind of notice and afforded some kind of
hearing” before being deprived of their education.” The United States Supreme Court held that all public
school students have a legitimate entitlement to a public education that rises
to the level of a constitutionally
protected property interest.
Thus,
a student’s property interest in their education cannot be taken from them without prior adherence to minimum due process standards. Thus, all removals of students
from education for misconduct must comply with appropriate due process standards of notice and opportunity
to be heard. The Supreme Court also held that lengthy
suspensions or expulsions (over 10 consecutive school days) require a
commensurately higher degree of formality in the due process protections than would short-term suspensions in response to more minor
misbehavior. But all disciplinary removals require some degree of
notice and opportunity to be heard.
Thus, all students suspended for fewer than 10 days
are entitled to minimal due process, which is very informal, often just
a verbal conversation between a student and a school administrator. For a
suspension expected to last longer than 10 days, which is a long-term
suspension, or an expulsion, a formal hearing is required – called a
“disciplinary due process hearing,” not to be confused with an IDEA due process
hearing – for both general education students and students with disabilities
(although students with an IEP may not be expelled – discussed below). Thus, for long-term suspensions (more than 10
days) and expulsions, the elements of due process are much more formal.
Each school district and charter school has its own
specific disciplinary due process hearing procedures, but most will include
the following elements: notice and fair
hearing with opportunity to be heard. The
notice to the student and parent must be in writing, provide the date, time and
location of the hearing, the specific charges, including applicable facts,
rules violated, and a copy of the rules should be provided. The punishment being considered must be set
forth, as well as a list of witnesses and copies of exhibits must be provided.
Also, the name of the hearing officer must be provided. Every school district
and charter school has in its policies the number of days in advance that the
notice is to be sent and how it is to be sent, for example, first-class mail or
certified mail.
The student and parent should also be informed of
their right to attend the hearing, bring counsel at their own expense, access
adverse evidence and student records prior to hearing, present witnesses and
cross examine the district/school’s witnesses, make a recording of the hearing, or obtain a copy of
the recording of the hearing. The parent
is also given the option of having the hearing closed or open. The burden of proof is on the administration
of the district or charter school. Both
sides should have an opportunity to present an opening and closing statement if
desired, and to present and cross-examine witnesses.
The hearing is held before a so called “Independent
Hearing Officer” (“IHO”). The IHO should
not have contact with any of the parties unless the parties are both present, and
unless contact is limited to items like scheduling of the hearing, should not
pre-judge the student prior to the hearing. and may be an employee of the
district/charter school, but should not be an employee with a stake in the
matter (e.g. the principal who is recommending long-term suspension or
expulsion).
Hearing decisions should be in writing, should
summarize the events of the hearing, should list applicable appeal procedures,
and state the appeal procedures. Decisions
regarding long-term suspensions can be appealed to Governing Board of the school
district or charter school. Decisions
regarding expulsions are not appealable if the hearing was conducted by
Governing Board. If a recommendation was
made to the Governing Board by an appointed Hearing Officer, the recommendation
can be argued before the Governing Board makes the final decision regarding the
expulsion.
Bear in mind that some states, including Arizona, allow school districts as
well as charter schools to refuse to admit any student who has been expelled
from another educational institution or who is in the process of being expelled
from another educational institution.
A.R.S. §§ 15-184(I)(charter schools)(“ A charter school may refuse to
admit any pupil who has been expelled from another educational institution or
who is in the process of being expelled from another educational institution”) and 15-841(C)(public school districts)(“ A school district may
refuse to admit any pupil who has been expelled from another educational
institution or who is in the process of being expelled from another educational
institution”).
