Posts tagged with "school discipline"

Searches by School Resource Officers

On Searches by School Resource Officers: Are They School Officials or Police Officers?
It Depends.

In light of school safety concerns that have plagued the nation since the 1990s, resource officers have become commonplace our public schools. They are the collaborative effort of local police departments and boards of education, serving a myriad of roles as educator, investigator, advisor, and a source of interaction and resource for students. However, what are the constitutional burdens imposed on a resource officer when he or she conducts a search of a student or the student’s property?

Limitations of the Fourth Amendment

First, let’s rewind to 1985, when the U.S. Supreme Court held that while the Fourth Amendment in general applies to searches conducted by teachers or school officials, they are not held to the stringent warrant requirements that constrain police action. As further elaborated:

[T]he accommodation of the privacy interests of schoolchildren with the substantial need of teacher and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.

Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the … action was justified at its inception, second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.[1]

Cases of School Searches by Resource Officers

In other words, school personnel are permitted to search student property (which includes purses, backpacks, and automobiles on school property) so long as the search is “justified at its inception” and permissible in scope. The search cannot be excessively intrusive. However, what the Court in T.L.O. declined to produce was “the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question.”[2]

Thus, we return to our original inquiry: because a resource officer serves functions both on behalf of the school and of the local police agency, what is the standard that applies? It does not appear that this question has been put to the test here in Connecticut, though other jurisdictions have progressively contemplated this scenario, and it boils down to three hypotheticals:

  1. School official initiates search/police involvement is minimal: reasonableness test applies.
  2. School resource officer initiates search on own initiative or at direction of a school official so as to “further educationally related goals”: reasonableness test applies.
  3. “Outside” police officer initiates search: warrant and probable cause requirements implicated.[3]
How to Determine the Level of Police Involvement

In determining the level of police involvement, various factors are considered:

[W]hether the officer was in uniform, whether the officer has an office on the school campus, how much time the officer is at the school each day, whether the officer is employed by the school system or an independent law enforcement agency, what the officer’s duties are at the school, who initiated the investigation, who conducted the search, whether other school officials were involved, and the officer’s purpose in conducting the search.[4]

Because of the lack of a uniform standard as promulgated by a Supreme Court decision, different courts have come to wholly divergent conclusions purely based on application of the above factors. In Alaniz, the North Dakota Supreme Court determined that the school resource officer involved was “more like a school official,” thus implicating the less stringent reasonableness standard.[5] Conversely, this past August the Washington Supreme Court ruled that “the school resource officer was not a school official and thus the more lenient standard of ‘reasonable suspicion’ applied to searches by school personnel did not apply.”[6]

Every instance of school searches conducted by resource officers is unique, and as such determining whether it was reasonable or implicated greater Fourth Amendment protections may be difficult without the assistance of an experienced school law practitioner.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school discipline, searches, or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).

[2] Id. at 342 n.7.

[3] State v. Alaniz, 2012 N.D. 76, ¶ 10. See, e.g., T.S. v. State, 863 N.E.2d 362, 367-68 (Ind. Ct. App. 2007); Myers v. State, 839 N.E.2d 1154, 1160 (Ind. 2005); State v. Burdette, 225 P.3d 736, 750 (Kan. Ct. App. 2010); In re D.L.D., 694 S.E.2d 395, 400 (N.C. Ct. App. 2010); State v. J.M., 255 P.3d 828, 832 (Wash. Ct. App. 2011). Accessed October 4, 2012: http://www.ndcourts.gov/_court/opinions/20110259.htm

[4] Id. at ¶ 11. See T.S., at 369-71; Burdette, at 740; R.D.S. v. State, 245 S.W.3d 356, 368 (Tenn. 2008).

[5] Id. at ¶ 12.

[6] “Court Invalidates Backpack Search by School Resource Officer,” by Mark Walsh. Accessed October 4, 2012: http://blogs.edweek.org/edweek/school_law/2012/08/court_invalidates_backpack_sea.html

Navigating the Channels of School Suspension Protocol

Hot off the press: “A new state law has significantly reduced the number of students being suspended from school…”[1] This is in large part due to the passage of Public Act No. 08-160, “An Act Concerning School Learning Environment,” which modified the circumstances which schools under State law could suspend its students, instead showing a preference for in-school suspensions.[2] Thus, during the 2010-2011 academic school year, “when the law went into effect… the number of out-of-school suspensions dropped statewide by 19 percent, or 9,835 incidents.”[3]

While “some incidents will still warrant suspensions,” [Waterbury Superintendent of Schools Kathleen Ouellette explained that] she’s deployed several initiatives to ensure that students are not being sent home for minor infractions like dress code violations, talking back to their teachers or skipping class. “We are trying to reach them and intervene before it escalates to that point.”

The Connecticut legislature has enumerated the circumstances under which a student may be suspended: if on school grounds or at a school-sponsored activity, the conduct violates an established, publicized school board policy, seriously disrupts the educational process, or endangers persons or property.[4] If the conduct took place off school grounds, the school board may only entertain a suspension if both the first two circumstances are met.

What does the school board consider when a student is facing a suspension?

Say your child has committed an act off school grounds, and the school is contemplating a suspension. What must it consider? Under Connecticut law, to determine if the conduct will seriously disrupt the educational process, your local school board must consider at least the following, though they are not limited to these four factors: Whether…

  1. The incident occurred within close proximity of a school
  2. Other students from the school were involved or whether there was any gang involvement
  3. The conduct involved violence, threats of violence or the unlawful use of a weapon… and whether any injuries occurred
  4. The conduct involved the use of alcohol

As a parent, it is vital to realize that your child cannot be automatically suspended without an informal administrative hearing. This is because in Goss v. Lopez, the U.S. Supreme Court explained the import of due process in a suspension scenario:

Among other things, the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by [the Due Process] Clause. [5]

Suspension Hearings

Thus, barring emergency circumstances, students facing a suspension (thus temporarily losing their property interest) “must be given some kind of notice and afforded some kind of hearing”[6] so they know why they are being suspended and given the chance to tell their side of the story. The hearing is the best place for a student to convince school officials that an out-of-school suspension is not warranted for any given number of reasons, such as the behavior not qualifying as prohibited conduct, the lack of disciplinary history,[7] or the use of an in-school suspension as a viable and reasonable alternative.

Written by Lindsay E. Raber, Esq.

The intricacies involved regarding in- and out-of-school suspensions can be difficult to comprehend, and could potentially result in the deprivation of a student’s protected rights. As such, if your child faces a suspension, it is imperative that you know all of these rights and consult with an experienced school law practitioner. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] “School suspension rates drop, but minority students still over-represented,” by Jacqueline Rabe Thomas. October 2, 2012: http://www.ctmirror.org/story/17615/school-suspension-rates-plummet-minority-students-still-overrepresented

[2] Connecticut General Statutes § 10-223c(g).

[3] See Footnote 1.

[4] Connecticut General Statutes § 10-223c(a)

[5] Goss v. Lopez, 419 U.S. 565, 574 (1975).

[6] Id. at 580.

[7] Connecticut General Statutes § 10-223c(e)

Todd Video Highlights Cyberbullying Epidemic

In the wake of Canadian teenager Amanda Todd’s heart wrenching YouTube video and subsequent suicide (reported on here), much has been written about social media’s impact on Todd’s plight. Since her death on October 10, users have continued to post hateful messages on a Facebook page, justifying their cruelty with “freedom of speech” claims.

Yesterday, a Canadian journalist wrote an article discussing Canadian New Democratic Party’s MP Dany Morin’s response to the Amanda Todd tragedy.[1] Speaking to Canada’s House of Commons yesterday, which had the opportunity to consider new legislation addressing cyberbullying, Morin stated: “Nowadays, with cyberbullying, with social media, it has gotten to a breaking point.”  Speaking of his own high school experience, Morin, who is gay, noted that though bullying existed, Facebook and other means of social media didn’t exist.  With social media, there is no break from the bullying – it’s 24/7.

Todd’s death, which made international headlines, highlights how cyberbullying has been exacerbated by social media.  As previously reported, school administrators have acted swiftly, hosting seminars and training sessions for parents, students, and faculty members, in an attempt to educate authority figures on how best to recognize and combat bullying.  State legislatures are enacting laws aimed exclusively at cyberbullying, or amending online harassment laws to encompass the specific area of cyberbullying.  But the law continues to remain murky, wrapped up in freedom of speech and First Amendment concerns.

It is important, if you have concerns about bullying against yourself or a loved one that can only be resolved through legal action, to consult with an attorney experienced in the complicated maze of education law.  If you do have questions, please contact Joseph C. Maya, Esq., in our Westport office, at 203-221-3100, or at JMaya@mayalaw.com.

 


[1] http://news.nationalpost.com/2012/10/15/cyber-bullying-on-social-media-is-at-a-breaking-point-says-ndp-mp-championing-private-members-bill/.

Student Speech Rights in the Information Age

For nearly twenty years, the First Amendment framework chiseled out by the Tinker[1]-Fraser[2]-Hazelwood[3] trilogy worked wonders in establishing whether student speech could be regulated. Though students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”[4] school administrators have the authority to curtail or prohibit various forms of speech: that which would materially and substantially disrupt a classroom, is plainly offensive or promotes illegal drug use. Educators may also exert editorial control over school-sponsored expressive activities, such as a school newspaper written by students.

As my colleague Bob, succinctly wrote, these cases were “once thought to provide parents and teachers with a viable and stable framework for reconciling student rights of free speech with educators’ rights to maintain good order and discipline.”[5] Technology, which we insist makes life easier, instead simply made things more clouded and ushered in a new battleground for student speech litigation.

The Impact of the Information Age

Today, students are connected to each other through email, instant messaging, blogs, social networking sites, and text messages. An email can be sent to dozens or hundreds of other students by hitting ‘send.’ A blog entry posted on a site such as livejournal.com can be instantaneously viewed by students, teachers, and administrators alike. Off-campus speech can become on-campus speech with the click of a mouse.[6]

Thus, what happens when a student, who is neither on school grounds nor at a school-sponsored event, engages in speech critical of school administration? Does the school have authority to punish the student? The Second Circuit held the in the affirmative: quoting a decision rendered only two years earlier, the Court condoned discipline for speech or expressive conduct made off school grounds if the conduct “would foreseeably create a risk of substantial disruption within the school environment”[7] should the expression reach school grounds.[8]

Off-Campus Student Speech

Findings in other cases, however, are setting up the issue of disciplining off-campus student speech for a day in the U.S. Supreme Court, in large part due to conflicting decisions in the Appellate Courts.[9] Most recently on September 6, 2012, the United States District Court of the District of Minnesota, located in 8th Circuit, denied a defendant school district (and the defendant administrators) its motion to dismiss a lawsuit filed by a student who was punished for her off-campus speech.

In that case, using her personal computer at home, the student wrote on her own Facebook wall that she hated a school monitor because she “was mean to me.” For this, school administrators gave a warning. When the student thereafter posted a message that stated, “I want to know who the f%$# [sic] told on me,” again using her personal computer at home, she received a one-day suspension and was prohibited from attending a school-sponsored ski trip. Characterizing these posts as “a far cry from the statements made by the students in cases in which courts have approved of school intervention,” the District Court found that these statements “were not likely to cause a substantial disruption to the school environment.”[10]

Regulating Student Speech Online

While the foundations of student speech regulations are not yet set, it is important for students to realize that any electronic communication they send could potentially be viewed by anyone. All it takes is the recipient hitting the “Forward” button to send to unknown parties or “tattletaling” to a teacher or school administrator. As such, “[a]ny off-campus electronic communication relating or referring to students, teachers, administrators, or school activities has the potential to result in school discipline” and exclusion from participation in school activities.[11]

As a parent, controlling or monitoring your child’s electronic communications has become a highly difficult, if not impossible, task to fully accomplish. This is why it is imperative that you speak to your child about the ramifications of sending out messages they have no way to capture back and which may inadvertently come to the attention of school officials. Nonetheless, if your child is facing disciplinary action for off-campus conduct or speech, it is important that you are aware of your rights and consult an experienced school law practitioner.

Written by Lindsay E. Raber, Esq.

Should you have any questions about school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

[2] Bethel School District v. Fraser, 478 U.S. 675 (1986).

[3] Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988).

[4] Tinker, supra at 506.

[5] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., Esq, at 83.

[6] Doninger v. Niehoff, 594 F.Supp. 2d 211, 223 (D. Conn. 2009), aff’d in part and rev’d in part 2011 U.S. App. LEXIS 8441 (2d Cir. Apr. 25, 2011).

[7] Wisniewski v. Board of Education, 494 F.3d 34, 40 (2d Cir. 2007).

[8] Doninger, supra at 217.

[9] Compare Doninger, supra, with J.S. v. Blue Mountain School District, 2011 U.S. App. LEXIS 11947 (3d Cir. June 13, 2011) and Layshock v. Hermitage School District, 2011 U.S. App. LEXIS 11994 (3d Cir. June 13, 2011).

[10] R.S. et al v. Minnewaska Area School District No. 2149 et al, Civ. No. 12-588 (MJD/LIB). Accessed October 3, 2012: http://law.justia.com/cases/federal/district-courts/minnesota/mndce/0:2012cv00588/124914/28/

[11] Maya and Bob, supra at 92.

A Student’s Rights During the Expulsion Process

Issuing Expulsion vs. Suspension

When a school board decides that a child’s misbehavior warrants a greater punishment than up to ten (10) days’ exclusion from school, they may instead consider issuing an expulsion. As with suspensions, there are three recognized grounds (discussed in greater detail here) for expelling a student: his or her behavior 1) violates a publicized school policy; 2) seriously disrupts the educational process; or 3) endangers persons or property. Where the conduct was committed on school grounds, only one category need be established; if off school grounds, then a showing of both #2 and #3 are required.

As a parent, if your child is facing expulsion, it is imperative that you understand your child’s rights during the expulsion process. Below you will find a concise guide on what to expect before, during, and after the expulsion hearing.

Before the Hearing and Preparation

When an expulsion is considered for student misbehavior, parents must receive written notice “within twenty-four hours detailing the date, time, a plain statement of the matters at hand, and a list of free or reduced-fee legal services.”[1] The school board must also provide any and all documentary evidence it intends to present at a suspension hearing. Barring emergency circumstances,[2] students are statutorily entitled to a formal hearing in front of the school board within ten (10) days after the proposed expulsion.[3]

Parents are advised that prior to the hearing, they review the school board’s evidence and speak with the school board’s witnesses to understand the substance of their potential testimony. In addition, parents should arrange for their own witnesses to testify on their child’s behalf.

At the Hearing

The expulsion hearing is presided over by three members of the board of education (or an impartial hearing officer).[4] Their purpose is to determine whether an expulsion is proper, and if so, how long it should last. A school administrator will present the facts leading to the expulsion, followed by presentation of evidence and cross-examination of witnesses by both parties. Board members have the opportunity to ask questions, and both the student and administrator may present additional arguments.

After the Hearing

The school board or hearing officer may render one of three possible decisions:

  1. Reject expulsion. The child immediately eligible to return to school.
  2. Support expulsion. The child cannot attend school or any school-sponsored activity for the duration of the expulsion. The school board will consider disciplinary history in determining the length of the expulsion.
  3. Recommend a suspended expulsion. This is basically probation for the student. If the student misbehaves again, the expulsion may be imposed.

Within twenty-four (24) hours of the hearing, parents must receive the decision. If expulsion was recommended, parents cannot appeal but are left with some choices:

  • The board must provide an alternative educational program (AEP) for the duration of the expulsion. Click here for more information on AEPs.
  • The parent may seek to enroll their child in another school, but this may be denied by the potential receiving school.
  • The parent may apply, on their child’s behalf, for early re-admission to the school.

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq. at pp.42 (citing Connecticut General Statutes § 10-233d(a)(3)).

[2] Connecticut General Statutes § 10-233d(a).

[3] Connecticut General Statutes § 10-233d(a)(3).

[4] Connecticut General Statutes § 10-233d.

Categories of Student Misbehavior Qualifying for Suspension

Categorizing Misbehavior

When a student misbehaves at school, he or she may be punished with a suspension in one of three categories: the behavior

  1. violated a publicized school policy;
  2. seriously disrupted the educational process; or
  3. endangered persons or property.[1]

As a parent, it is important that you understand what conduct qualifies as prohibited conduct, and in some instances you may be able to contest the characterization.

Violation of Publicized School Policy

School boards have the statutory authority to draft disciplinary rules and policies that apply to student conduct within their district. To that end, they utilize student handbooks, which are distributed to each child at the beginning of the school year, that specifically list conduct that is prohibited. Therefore, if and when a student engages in that conduct, school administrators may issue a suspension.

The rules and guidelines found in student handbooks must be clear and understandable so as to give students and parents reasonable notice of prohibited conduct.[2] Furthermore, the rules must not be completely arbitrary: rather, there must be some relationship between the rules and their intended purposes. Admittedly, this is not a difficult standard to meet.

If you are a parent and your child is suspended under this category, you should first review the school handbook to establish whether or not your child actually violated an articulated disciplinary rule. “You will likely be able to make a stronger case for your child during suspension hearings… if you can show that his or her conduct is neither prohibited by the school nor violates any school rules.”[3]

Serious Disruption of the Educational Process

To qualify for this category, a student’s behavior must interfere with the operation of a class, study hall, library, or any meeting that involves student or staff.[4] Even non-serious disruptions that are recurrent or cumulative qualify, though administrators will consider the frequency, number, and severity of these occurrences.[5]

Endangerment of Persons or Property

Finally, “endangerment of persons or property” constitutes conduct that exposes a student to injury, risk, or a harmful situation.[6] A number of student behaviors would fall under this category, including but not limited to:

  • Fighting and bullying
  • Possession of firearms or controlled substances
  • Damage to personal or school property

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] Connecticut General Statutes § 10-233c.

[2] Crossen v. Fatsi, 309 F. Supp. 114 (D. Conn. 1970).

[3] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at pp.42.

[4] “Guidelines for In-School and Out-of-School Suspensions,” by the Connecticut State Department of Education, at pp.9. http://www.sde.ct.gov/sde/lib/sde/pdf/pressroom/In_School_Suspension_Guidance.pdf

[5] Id.

[6] Id. at 10.

Suspensions as Disciplinary Tools for Student Misbehavior

Punishing Student Misbehavior 

Under Connecticut law, school administration may punish student misbehavior by issuing suspensions, or excluding a student from school privileges and transportation for up to ten (10) days.[1] This punishment is permitted only when the student’s behavior:

  • Violates a publicized school policy;
  • Seriously disrupts the educational process; or
  • Endangers persons or property.[2]

A showing of only one of these three elements is required if the behavior occurred on school grounds or at a school-sponsored activity. If, however, the conduct occurred off school grounds, suspension is allowed “only if the misbehavior violates publicized policy and seriously disrupts the educational process.”[3] (Emphasis added.)

In-School vs. Out-of-School Suspensions

The Connecticut legislature has shown a preference for in-school suspensions as a disciplinary tool, noting “data showing that out-of-school suspensions actually perpetuated misbehavior and increased the likelihood that students would end up in the juvenile justice system.”[4] Thus, all suspensions must be in-school unless one of two situations arises:

  • The student should not be in school because he or she poses a danger to persons or property or a serious disruption to the educational process.
  • School administrators previously attempted to address the student’s past disciplinary problems and behavior by alternative methods (other than suspensions and expulsions).[5]
Pursuing an Out-of-School Suspension

In addition, the State Department of Education has emphasized mitigating factors that school administrators should take into account before electing to pursue an out-of-school suspension. These include:

  • The age, grade, and developmental stage of the student;
  • The student’s reason(s) for engaging in the misbehavior;
  • The student’s past disciplinary problems and/or likelihood of recurrence;
  • The risk of loss of instruction;
  • Cultural considerations;
  • Extent of support from parents and/or guardians in addressing the misbehavior.

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] Connecticut General Statutes § 10-233a(a).

[2] Connecticut General Statutes § 10-233c.

[3] Id.

[4] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at pp.44.

[5] Connecticut General Statutes § 10-233e.

Special Education Discipline and Interim Educational Settings

Children that require special education and related services must comply with a school district’s student code of conduct. That being said, the disciplinary procedures that apply are somewhat distinct from those used with non-special education students. In an article posted yesterday, I described the expulsion process for special education students in more general terms – today, let’s narrow that focus.

Special Education Discipline Process

If your special education child faces disciplinary action, his or her planning and placement team (PPT), of which you may be a member, will schedule a meeting to conduct a “manifestation determination.” In other words, the PPT will figure out whether “your child’s behavior was caused by or had a direct and substantial relationship to his or her disability.”[1] The PPT will also figure out whether the school district failed to implement your child’s individualized education program (IEP), thus prompting the misbehavior. The manifest determination must be conducted no later than ten (10) days after a decision to change your child’s placement.[2]

If the PPT concludes that your child’s behavior did not result from his or her disability, he or she will be disciplined consistent with that received by any other student who behaved in the same way. However, if the PPT establishes either that the behavior “was a manifestation of his or her disability or was due to a failure to implement his or her IEP,”[3] the PPT must perform a functional behavioral assessment (assessment) as well as create and implement a behavioral intervention plan (plan).[4]

The assessment is used to gather information that may shed light on why your child acted the way he or she did, as well as “identify strategies to address your child’s behavior.”[5] In turn, the plan should be designed in a way so as to teach your child how to properly behave, as well as deter and eliminate negative behaviors.

Long-Term Placement in an IES

It is important to keep in mind, however, that your child could be removed from his or her current placement and into an interim educational setting (IES). In most instances, this alternative placement must not exceed ten (10) days and is determined by your child’s IEP. In limited situations, however, your school district may decide to place your child in an IES for upwards of forty-five (45) days. This is without regard to the results of the PPT’s manifestation determination. The three circumstances where this may occur are as follows:

  • Your child carried or possessed a weapon to school or to a school-sponsored activity.
  • Your child knowingly possessed or used an illegal drug, or sold or solicited the sale of a controlled substance on school grounds or at a school-sponsored activity.
  • Your child inflicted serious bodily injury upon a fellow student, staff member, or any other person while on school grounds or at a school-sponsored activity.
What if I disagree with my child’s placement?

If you, as a parent, disagree with any decision relating to the above, you have the right to file for a due process hearing.[6] Unless you and the school district agree to otherwise, your child will remain in the IES until either the placement expires or a post-hearing decision is rendered.[7] Your local education agency must hold the hearing within twenty (20) days of the filing, and the hearing officer must render a decision within ten (10) days after the hearing.[8] Furthermore, the hearing officer has authority to your child’s regular placement if he or she “determines that removal was not valid or your child’s behavior was a manifestation of his or her disability.”[9]

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline, special education, or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq.,, pp.31.

[2] 34 C.F.R. § 300.530(e).

[3] See Footnote 1.

[4] 34 C.F.R. § 300.530(f)(1)(i)-(ii).

[5] See Footnote 1.

[6] 34 C.F.R. § 300.532(a).

[7] 34 C.F.R. § 300.533.

[8] 34 C.F.R. § 300.532(c)(2).

[9] See Footnote 1.

What is the Process for Expelling a Special Education Student?

Expulsion Process in Special Education

If you are the parent of a child that qualifies for special education under the Individuals with Disabilities Education Act (IDEA), it is imperative that you understand that an entirely different set of rules applies.

“Connecticut school districts are obligated to provide special education and related services to children five years of age or older until the earlier of either high school graduation or the end of the school year in which your child turns twenty-one years of age.”[1] A special education child’s misconduct does not obviate the school district’s statutory duty. Therefore, before an expulsion hearing occurs, the child’s planning and placement team (PPT), which includes the parent(s), will schedule a meeting to determine whether or not the child’s misbehavior was caused by his or her disability. How the question is answered will impact the PPT’s course of action.

If the answer is “yes,” expulsion will not be pursued. Rather, the PPT will reevaluate the child and potentially modify his individualized education program (IEP) “to address the misconduct and to ensure the safety of other children and staff in the school.”[2] If, instead, the answer is “no,” the standard expulsion procedures[3] are followed. However, an AEP that is consistent with the child’s special educational needs must be provided by the school for the duration of the expulsion.[4]

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at pp.8-9.

[2] Connecticut General Statutes § 10-233d(i).

[3] See Connecticut General Statutes § 10-233d(a).

[4] Connecticut General Statutes § 10-233d(i).

Alternative Educational Programs for Expelled Students

Expulsions in Connecticut Schools

The Connecticut legislature has authorized the expulsion of a student if his or her conduct, be it committed on or off school grounds, violates a publicized board of education rule, seriously disrupts the educational process, or places into danger other persons or property.[1] The expulsion may last from anywhere between ten (10) days to one calendar year,[2] which no doubt leaves parents concerned that their child may fall behind his or her peers. However, barring specific exceptions, schools must provide an alternative education program (AEP) to an expelled student.

Constituting and Implementing an AEP

There is very little guidance as to what constitutes an AEP. One statute states, “Such alternative may include, but shall not be limited to, the placement of a pupil who is at least sixteen years of age in an adult education program.”[3] One State Department of Education regulation focuses on home tutoring obligations.[4] That being said, boards of education have wide discretion in deciding what qualifies as an AEP and may provide one even where they are not obligated to do so.[5]

However, the circumstances under which AEPs are granted are clear-cut and fall into three age-based categories. If the student is less than sixteen (16) years of age, the school has a duty to provide an AEP at no cost to the parents.

An AEP must also be provided to students aged sixteen (16) and seventeen (17), unless 1) the student was previously expelled; 2) the expulsion was for possession of a firearm, deadly weapon, dangerous instrument, or martial arts weapon while on school grounds or at a school-sponsored activity; or 3) the expulsion was for the sale or distribution of a controlled substance on school grounds or at a school-sponsored activity. Finally, if the student is above age eighteen (18), the school has no duty to provide an AEP unless he or she is a special education student.

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact a suspension or expulsion can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner. The attorneys at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] Connecticut General Statutes § 10-233d.

[2] Rosa R. v. Connelly, 889 F.2d 435 (2d Cir. 1989).

[3] Connecticut General Statutes § 10-233d(d).

[4] Connecticut State Regulations § 10-76d-15.

[5] Connecticut General Statutes § 10-233d(d).