Below please find a copy of Arkansas' Dept of Education Guidelines for Discipline and School Safety. We have reviewed these guidelines and, as with many state policies/guidelines, have found these "Guidelines" lacking...and possibly in violation of Federal IDEA Laws.
States set policies which school districts must follow. Under those policies, school districts have a certain amount of autonomy in developing their policies/guidelines. In this case, the state of Arkansas has 278 different school districts; since each district may develop their own "discipline and safety policy," this means that there will be 278 different interpretations of these "guidelines."
Please also keep in mind the Department of Education's Guidelines are "recommendations" only; thus, nothing set forth in any of this document is binding or enforceable as written. Which means, basically, districts can do whatever they want and there's virutally NOTHING we can do about it - EXCEPT ask our legislators to stop making unenforceable, meaningless "policies" and craft FEDERAL AND STATE LAWS!!
Please keep in mind we are not attorneys, so our interpretations shouldn't be construed as "FACT," but are an accurate reflection of our opinions.
Areas of concern are italicized and are immediately followed by our commentary, which is enclosed in brackets and bolded for easier viewing.
We have not changed or altered any of the content therein, only interjected our thoughts.
The original PDF document can be found on the AR Dept of Ed website and can be accessed here:
Agency # 005.15
ARKANSAS DEPARTMENT OF EDUCATION
GUIDELINES FOR THE DEVELOPMENT,
REVIEW AND REVISION OF SCHOOL DISTRICT STUDENT
DISCIPLINE AND SCHOOL SAFETY POLICEIS
Adopted May 14, 2007
1.00 Title
1.01 These guidelines shall be known as the Arkansas Department of Education
Guidelines for the Development, Review and Revision of School District student discipline and School Safety Policies.
2.00 Authority
2.01 These guidelines are authorized pursuant to the Department of Education’s authority under Ark. Code Ann 6-18-502 (Repl. 1993).
3.00 Purpose
3.01 These guidelines are designed to assist local school districts with the development, review and revision of student discipline and school safety policies.
4.00 Development, Review and Revision of Policies
4.01 All school districts should [not shall or must; “optional”; unenforceable as written] complete the initial development of school district student discipline and school safety policies consistent with legal guidelines set forth in these regulations during the 1995-96 school year. [Does this mean that school districts do not have to develop ANY student discipline and safety policies? What guidelines were set forth during the 1995-1996 school year? Why was that school year chosen? Why aren't those guidelines specifically explained in this document?]
4.01.01 Districts may elect to have a single policy encompassing all organizational levels or may develop separate policies for each organizational level.
4.02 All school districts shall include in the above referenced policies, a procedure for annually reviewing the policies to ensure that they are consistent with state and federal law, developing case law and Department of Education guidelines.
4.03 All school districts shall include in the above referenced policies a procedure by which parents, teachers or students may request and receive a hearing to consider revision of the policies or particular provisions of the policies
5.00 Persons Participating In Policy Development, Review and Revision
5.01 Parents, teachers, students, school district administrative personnel, community representatives, and at least one school counselor shall be involved initial development and an annual review and revision of school district student discipline and school safety policies.
ADE 253-1 Agency # 005.15
5.01.01 The development team shall be equitably balanced by race, gender, social economic level and shall be sufficient number to provide broad representation within the district. [How is “sufficiency” determined? Who determines “sufficiency?” What does “broad representation” mean? How many team members constitute "sufficiency?"]
5.01.02 Districts may elect to have separate policies for different organizational levels and may have development teams for each level or may use one team for all levels.
6.00 Policy Content
6.01 Student discipline and school safety policies shall include provisions, which cover required areas of Arkansas Code Annotated 6-18-502 [Why is the specific Annotated Code not spelled out clearly in this policy, with a notation that those “required areas” are consistent with the Annotated Code? That way “required areas” are clearly defined and understood. How does this align with federal policies?] while other areas [How is “other areas” defined?] shall be optional with the local school district. [How does this align with federal law?] All policies shall include provisions, which cover the required areas in a form consistent with legal commentary. If optional issues are included in the district’s policies, they shall be in a form consistent with the legal commentary. However, a school district may change its policy if new laws or new case law dictate such a change. [Does this refer only to “optional policies” or is this applicable to “required policies” as well?]
6.02 Required Areas: Students discipline policies shall include, but are not limited to Ark. Code Ann. 6-18-502 [What specifically does Ark Code Ann 6-18-502 specify? Why is that not clarified here?]
6.02.01 Willfully and intentionally assaulting or threatening to assault or abuse any teacher, principal, superintendent, or other employee of a school system; [Note: Notice there’s no specific mention of assaults on other students, just staff]
6.02.02 Possession by students of any firearm or other weapon [what constitutes “other weapon?”] prohibited upon the school campus by law or by policies adopted by the school board.
COMMENTARY: Act 567 of 1995 requires expulsion for a period of not less than one year for possession of any firearm or other weapon prohibited upon the school campus by law; however, the superintendent shall have discretion to modify such expulsion requirement for a student on a case-case-basis. [What are the student’s due process “rights” under these circumstances?]
6.02.03 Using offering for sale, or selling beer, alcoholic beverages, or other illicit drugs by students on school property;
COMMENTARY: Recipients of federal grant funds distributed through the Arkansas Department of Education must ensure a drug free workplace. District policies should [not shall or must; optional; not enforceable as written] be consistent with this guarantee. [What are the student’s due process “rights” under these circumstances? What is the “prescribed punishment” under these circumstances if found guilty?]
6.02.04 Possession by a student of any paging device, beeper, or similar Electronic communication device on the school campus; however, The policy may provide an exemption for possession of such a device by a student who is required to use such a device for health or other compelling reasons;
COMMENTARY: Ark. Code Ann. 6-18-502 (b) (2) (D) (Repl.1993) prohibits the possession by students of pagers or beepers on school campuses except when they are required for health or another compelling reason. [What are the student’s due process rights under these circumstances? What is the “prescribed punishment” under these circumstances if found guilty?]
ADE 253-2 Agency # 005.15
6.02.05 Willfully or intentionally damaging, destroying, or stealing of school property by students
6.02.06 The school discipline policies shall: Prescribe minimum and maximum penalties, including students’ suspension or dismissal from school, for violations of each of the aforementioned offenses and for violations of other practices prohibited by school discipline policies. [This indicates what needs to be included in the policies, but does not set “minimum” or “maximum” penalties. Who sets “minimums” or “maximums” (Districts? The state?) is also not mentioned. How does this align with federal and state policy?)]
COMMENTARY: Notice in writing of the district’s discipline policies, specific enough to put students on notice of proscribed behavior, is a necessary component of due process. Failure to adequately provide notice may render a policy unenforceable in a specific instance
.
6.02.07 The school discipline policies shall establish procedures for notice to students and parents of charges, hearings, and other due process proceedings to be applicable in the enforcement and administration of such policies by the school administrator and by the school board. [Notice both students and parents must be given notice of “charges, hearings, and other due process proceedings,” but how that “notice” is “provided” is not clear (phone call, written incident report, etc.). However, “notice” must be provided before “due process” can be “enforced or administered.” Would this mean staff would have to “notify” parents before punishment is administered?]
COMMENTARY: Due process is at a minimum, (1) notice of charge; (2) opportunity for denial; (3) evidence against him/her (if denies) (4) opportunity to tell his/her side; (5) decision, and timely notice [What does “timely notice” mean? How is “timely notice” defined?] and an opportunity for a fair hearing. [Who is involved in the "hearing?"; What processes are in place to assure "hearings" are "fair?" Is “punishment” doled out prior to “a fair hearing?” What is a student’s recourse if student is “punished” via “corporal punishment” but a “fair hearing” finds the student “not guilty?”] The degree of due process required is directly proportional to the degree of loss to the student. [What does "degree of due process” and “degree of loss” mean? How is “degree of due process” and “degree of loss” defined? Who determines “degree of due process” and “degree of loss?”] Any penalty which effectively denies a student’s education will require the greatest degree of due process. [What are the “degrees” of “due process”? Who determines “degree of due process?”] This means notice in writing at a time sufficient for the student to prepare for a full hearing before the local school board. [What does “at a time sufficient” mean? Who determines how much “time” is “sufficient?” What information should the “notice” include? Would a student’s right to due process be compromised OR can punishment be “meted out” prior to parental notification/if parents are NOT notified in advance of disciplinary action leading to due process? If so, how is that not a circumvention of due process?]
6.02.08 The school discipline policies shall include prevention, Intervention and conflict resolution provisions.
6.02.09 Student discipline policies shall provide that parents and students will be advised of the rules and regulations by which the school is governed and will be made aware of the behavior that will call for disciplinary action and types of corrective actions that may be imposed.
6.02.10 Each school district shall develop a procedure for written notification to all parents and students of the district’s student discipline policies and documentation of the receipt of the policies by all parents and students.
6.02.11 Teachers and administrators shall be provided with training as needed in classroom management and in other skills relevant to student discipline. [Who/what determines what training "is needed?" What "other skills" are "relevant to student discipline?" Who will provide "training?" How will "training" be provided?]
ADE 253-3 Agency # 005.15
6.02.12 District’s policy regarding student attendance, required by Ark. Code Ann. 6-18-209 and 6-18-222 (Repl.1993), as amended by Act 572 of 1995.
COMMENTARY: Each school district’s attendance policy must state a certain number of unexcused absences, which the district considers excessive. [Why is each district setting its own “rules” about what is “excessive?” Why is this not determined, consistently, by the state?] Excessive absences may be used as a basis for denial of course credit, promotion or graduation by law although the Department of Education does not recommend this and urges districts to devise ways in which students can regain credits lost through nonattendance. Excessive absences may not be used as a basis for expulsion or dismissal of a student. State law requires that students who miss school because of illness, accident, or other unavoidable reasons should [not shall or must; optional; unenforceable as written] be given assistance in obtaining credit for their courses. Ark. Code Ann. 6-18-222 (Repl. 1993), as amended by Act 572 of 1995. [This states that children who are absent because of illness, accident, or unavoidable reasons can be denied assistance in obtaining credit for their courses. How does this align with other state/federal laws? This may be discriminatory in that children who are ill or who are absent due to an accident or unavoidable reasons may be eligible for instruction in the home from their district.]
Districts should [not shall or must; optional; not enforceable as written] ensure that any student who a[sic] run[s] afoul of the district’s attendance policy because of illness or health problems has been evaluated Under Section 504 of the Rehabilitation Act of 1974. [This may be discriminatory and violate IDEA Child Find requirements since states are required to identify, locate, and evaluate ALL children with disabilities.]
All children, ages 5 through 17 on October 1, must attend school unless an appropriate exception applies under Ark. Code Ann. 6-18-201 (Repl. 1993). [How does this align with federal law? What are the exceptions? Why aren’t exceptions clearly stated?] All children admitted to the public schools must show proof of age by either a birth certificate, a statement by the local registrar or a county recorder certifying the child’s date of birth, an attested baptismal certificate, a passport, an affidavit of the date and place of birth by the child’s parent or guardian or previous school records. Each Child shall either furnish his social security number or request the district to assign him a nine digit number. Ark. Code Ann.6-18-208 (Repl. 1993).
Prior to a child’s admission to an Arkansas public school, the parent, guardian, or other responsible person shall indicate on school registration forms whether the child has been expelled from school in any other school district or is a party to an expulsion proceeding. Ark. Code Ann. 6-18-208 (Repl. 1993), as amended by Act 574 of 1995.
A copy of the school district’s attendance policy should [not shall or must; optional; unenforceable as written] be provided to the student’s parents, guardians or persons in loco parentis at the beginning of the school year. Ark. Code Ann. 6-18-222. [This states that attendance policies do not have to be provided to parents, guardians, or persons in loco parentis.]
Whenever a student exceeds the number unexcused absences provided for in the district’s attendance policy, the district shall notify the prosecuting authority. Ark Code Ann. 6-18-222.
Each local school district must notify the Department of Finance and Administration whenever a student 14 years or older is no longer in school. Ark. Code Ann. 65-18-222, as amended by Act 572 of 1995.
6.02.13 Crisis Intervention Plans
COMMENTARY: School districts should [not shall or must; optional; unenforceable as written] formulate crisis intervention plans for the following situations: fire, tornado, earthquake, death, suicide, and intruder(s) on the school campus. These plans should [not shall or must; optional; unenforceable as written] name a coordinator, consider demographics and designate a response team. [This states that districts do not have to formulate crisis intervention plans, or if plans exist, then a coordinator does not have to be named, demographics do not need to be considered, nor does a response team need to be designated.]
6.02.14 Distribution of Literature
Each school board shall adopt rules and regulations in the form of a written student publications policy developed in conjunction with the student publication advisor (s) and the appropriate school administrator (s), which shall include reasonable provision for the time, place, and manner of distributing student publications.
COMMENTARY: Act 1109 of 1995 allows students to exercise their right of expression within the district’s regulations regardless of whether such publications are supported financially by the school or by use of school facilities or are produced in conjunction with a class. However, the following publications are not authorized:
(1) publications that are obscene as to minors, as defined by state law;
(2) publications that are libelous or slanderous, as defined by state law;
(3) publications that constitute an unwarranted invasion of privacy, as defined by state law,
(4) publications that so incite students as to create a clear and present danger of the commission of unlawful acts on school premises or the violations of lawful school regulations or the material and substantial disruption of the orderly operation of the school. [Who determines what may “incite students” or what a “clear and present danger is?” What process will be used in the event of a disagreement about whether something "incites danger?"]
Publications that are a product of the school curriculum should [not shall or must; optional; unenforceable as written] have printed in the published material a statement like: “This publication is published as a part of the curriculum and is a non-public forum under the supervision of the District Board of Directors.”
6.03 Optional Areas
6.03.01 Appearance and Dress Code
COMMENTARY: Districts may adopt rules regarding personal appearance and grooming if they are required to prevent disruption or interference in the educational process and if such rules do not reflect mere taste or fashion. See Tinker v. Des Moines Indep. Comm, School Dist. 393 U.S. 503 (1969)
6.03.02 School Organizations
COMMENTARY: No state or federal law prohibits student organizations at the elementary or secondary level. Students have the right to join an existing club and should [in this case, "must not," or "shall not" must be used, as to keep the wording of “should” could be considered discrimination, which is a civil rights violation] not be restricted from membership on the basis of race, sex, national origin or other arbitrary criteria.
ADE 253-5 Agency # 005.15
School fraternities and secret societies are banned in Arkansas public schools. See Ark. Code Ann. 6-18-603 (Repl. 1993). (**Note: This could be a good “gang” related policy.** ) [Note: Content appearing in *** is NOT our notation.)
6.03.03 Search and Seizure
COMMENTARY: School personnel may legally search lockers, automobiles, and students using the following guidelines.
A. Student Lockers: School policy on the search of student lockers by school personnel should [not shall or must; optional; not enforceable as written] be set within the following legal framework:
1. A search shall be conducted upon receipt of information that the search would produce evidence indicating the student has violated the law or school rules.
2. Students should [not shall or must; optional; not enforceable as written] be informed at the beginning of school each year school authorities have equal access to lockers and may inspect them at any time. [This states that students do not have to be informed that their lockers could be inspected.]
B. Personal Search
A search of a student’s person should [not shall or must; optional; not enforceable as written] be limited to a situation in which the administration has reasonable suspicion that the search would produce evidence indicating that the student has violated the law or school rules. [This means that school personnel can search a student at any time, for any reason.]
School districts are encouraged to develop written guidelines indicating how personal searches of students will be conducted. [This means that school districts do not have to develop any written guidelines on how personal searches will be conducted.] These written guidelines should [not shall or must; optional; not enforceable as written] be given to students and parents prior to each school year. The following minimum guidelines should [not shall or must; optional; not enforceable as written] be incorporated into a district’s search policy:
1. An adult witness should [not shall or must; optional; not enforceable as written] be present when a personal search is conducted. [It is uncertain why the policy is left so vague and/or to the districts' discretion as to whether a "witness" should be present during a personal search, as this poses a liability issue (in other words, major threat of lawsuit if student alleges district personnel did something inappropriate during "personal search.") Districts can't definitively "prove" personnel innocence if no witnesses, unless "search" is caught on videotape. What do the school insurance policies indicate for "personal search procedures?"]
2. A pat down search of a student’s person should [not shall or must; optional; not enforceable as written] be done by a school official of the same sex. [It is uncertain why the policy is left so vague and/or to the districts' discretion as to whether a "pat down" could be done by someone of the opposite sex, as this poses a liability issue (in other words, major threat of lawsuit if student alleges district personnel did something inappropriate during "pat down.") District can't definitively "prove" personnel innocence if there are no witnesses, unless the "pat down" was caught on videotape. Same allegations could be raised for either same sex or opposite sex "pat downs." What do the school insurance policies indicate for "pat down procedures?"]
3. A search must be based on a reasonable suspicion that the student has violated the law or school rules, and the scope of the search must be “reasonably related to the objective of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” New Jersey v. T.L.O. 469 U. S. 325, 342 (1985) [This contradicts what was written above in that this is what “should” be incorporated, not what “must” be incorporated in these guidelines. Unless this subsection negates the introduction to Section B?]
ADE 253-6 Agency # 005.15
C. Automobiles
1. Warrantless searches of student automobiles by school personnel are generally valid if there is reasonable suspicion that the search would produce evidence indicating the student has violated the law or school rules.
D. Sniff Dogs
1. No Arkansas case has been litigated in federal district court, the Eight Circuit Court of Appeals, or United States Supreme Court on “sniff dog” searches.
2. “Sniffing” by trained dogs in public hallways or autos in public lots is not a search. (The Fourth Amendment requirements do not apply.) [Why do the 4th Amendment requirements not apply in this instance?]
3. “Sniffing” of a student’s person is a search and the legality of such sniffing can only be defended if there is reasonable suspicion that the search will produce evidence that the student is violating the law or school rules.
E. The school district may elect to use a metal detector at the entrance of all schools.
6.03.04 Student Conduct
COMMENTARY: School districts have broad authority to control student conduct and adopt all rules reasonably necessary to maintain proper discipline [What is proper discipline?] among their students. Each district should [not shall or must; optional; unenforceable as written] define both permissible and impermissible conduct and describe appropriate punishment for impermissible conduct. [This states that districts do not have to define "permissible and impermissible conduct" or describe what punishment may be meted out for "impermissible conduct."] These definitions should [not shall or must; optional; unenforceable as written] be distributed to district personnel, students and parents at the beginning of the school year. [How can punishment be meted out for impermissible behavior if districts are not required to inform district personnel of what behavior is "impermissible." How can parents or students exercise their right to due process if they are unaware of what "impermissible behaviors" are and/or what punishments may be meted out?]
6.04 Administrative Responses
Each school district should [not shall or must; optional; unenforceable as written] clearly define all possible administrative responses to impermissible student behavior. [This states that districts do not have to clearly define any possible administrative responses to impermissible student behavior.] In drafting these guidelines, districts should [not shall or must; optional; unenforceable as written] remember that every student is entitled to due process in every instance of response. However, the amount of due process to which the student is entitled is directly proportional to the nature of the student’s right, which is affected. [What does this mean? This whole section is contradictory. First, it indicates that all students are entitled to due process, then it says that due process is “proportional to the “nature” of a student’s right.” Logic dictates that either a student is entitled to due process or they’re not; however this indicates that a student’s fundamental right to due process varies. Varies in what way? How is the “proportion of the student’s right” determined? Who determines that “proportion?” For that matter, how is due process defined? How does a district know what constitutes “due process?” What is the “nature” of a “student’s right?” How is “nature of student’s right” defined? This is incomprehensible and therefore, unenforceable as written.] The following categories represent disciplinary actions by the administration for which a student is entitled to due process and, roughly speaking, what kind of due process is required. [Roughly speaking? How is “roughly speaking" defined?” Either a specific type of “due process procedure” is available to a student or it’s not. Does this mean that students are not entitled to due process under certain circumstances? How can this be if “every student is entitled to due process in every instance of response?" This directly contradicts what was stated above.]
A. Corporal Punishment: Any teacher or school administrator in a school district that authorizes use of corporal punishment in the district’s written student discipline policy [Why are only teachers and administrators desires to include corporal punishment included in policy inclusion decisions when parents, students, community representatives, and at least one school counselor must be included in policy creation? This sentence is also poorly worded, nonsensical, and incomprehensible. Perhaps what was meant was “A school district may use corporal punishment, provided the district has written policies that indicate the circumstances corporal punishment may be used, who may authorize its use, and how it will be administered (ie. Teacher or administrator’s hand, wooden paddle, ping pong paddle, other manual device, etc. (Special Note: It is all too easy for “corporal punishment” to lead to the realm of abuse. This “School Safety Policy” should issue policies which clearly indicate which “types” of “corporal punishment devices” are impermissible and would constitute abuse.)) Any teacher or school administrator in a school district may authorize the use of corporal punishment provided that the authorization is in accordance with the district’s written student discipline policy. Any teacher or school administrator may use corporal punishment…”] and may use corporal punishment in the presence of an administrator or his designee, provided only that the punishment is administered in accord with the district’s written student discipline policy [this is redundant], against any pupil [How does this align with IDEA? What provisions are in place to protect children with disabilities from undue punishment?] in order to maintain discipline and order within the public schools. [Research indicates that in schools where corporal punishment is used, test scores and/or grades are lower than in schools where it is not used. Research also indicates that corporal punishment is not a “good means” of “maintaining discipline and order within public schools." IDEA also call for positive behavioral interventions and supports to be used. What evidence-based research has been used to verify corporal punishment is a positive behavioral intervention or support? This policy also previously indicated that prevention, intervention and conflict resolution provisions must be included. What policies and interventions will be put in place to prevent the need for/reduce the use of “corporal punishment?”]
ADE 253-7 Agency # 005.15
See Ark. Code Ann. 6-18-503 (Repl. 1993), as amended by Act 333 of 1995. [Why is the code not prefaced here?]
The following guidelines are recommended [not required; optional; unenforceable as written]:
1. Before corporal punishment is administered, the student should [not shall or must; optional; unenforceable as written] be advised of the rule and infraction for which the student may be punished. [IF the student is entitled to due process, and if the child is not informed of the infraction, how can the child effectively “fight” for his/her “due process?” Failure to inform the student of the infraction violates the student’s right to due process, as outlined in above provisions.] The student should [not shall or must; optional; unenforceable as written] be allowed time to respond [How much “time to respond” is allotted to the student? What “methods” may students use to “respond?” What accommodations/provisions are made for students with communication impairments and/or other disabilities? Also, failure of the child to be able to respond violates students’ right to due process, as outlined in above provisions], and then the school administrator should [not shall or must; optional; unenforceable as written] take the action it deems is most appropriate. [How soon does “action” take place?] A formal hearing is not required prior to administering corporal punishment.
2. Parents may choose an option whether their child is given corporal punishment. [How are parents informed of this policy? Is this an automatic “opt in” if parents don’t send letter to “opt out?” Do administrators/teachers contact the parent in advance if a child is determined to need “corporal punishment?” This needs to be clearly outlined.]
B. Suspension: Schools may suspend students from school. A suspension is defined as dismissing the student from school for any time period not exceeding 10 days. For a suspension, the United States Supreme Court in Goss v. Lopez required that a student be accorded the minimum due process requirements under the United States Constitution. [What are the minimum due process requirements under the US Constitution? Why aren’t they prefaced here?] Districts should [not shall or must; optional; unenforceable as written] only use suspension and/or expulsion from school when all other alternatives fail. Districts should [not shall or must; optional; unenforceable as written] afford suspended students the following rights:
1. Prior to any suspension, the school principal or his/her designee, shall advise the student in question of the particular misconduct of which he/she is accused, as well as the basic for the accusation. [This contradicts what was stated under B. above (districts *should*) and may not be enforceable as written]
2. The pupil shall be given an opportunity at that time to explain his/her version of the facts to the school principal or his/her designee. [Who must be present when the student “explains his/her version of the facts”; what other methods are used to determine “facts”; criminals are afforded “representation” when accused of crimes and in “explaining his/her version of the facts,” are students afforded the same representation by either parents or advocates?]
3. Written notice of suspension and the reason(s) for the suspension shall be given to the pupil.
4. Any parent, legal guardian, or person acting as a parent shall have the right to appeal to the superintendent or his/her designee. [How would a parent, guardian, etc appeal the suspension? What policies are in place re the appeals process?]
C. Expulsion: School districts may expel students from school using the following guidelines. An expulsion is defined as dismissing the student from school for the remainder of the current semester or for one year where the infraction involves a weapon.
Expulsion should [not shall or must; optional; unenforceable as written] only be used in those instances in which serious bodily harm occurred or reasonably could have occurred to another person or where the student possesses drugs or weapons. Expulsion should [not shall or must; optional; unenforceable as written] only be used in rare cases. Prior to expulsion, the following must occur:
1. The student should [Not shall or must; optional; unenforceable as written.] immediately be advised of the particular conduct in question. [Violates students’ right to due process as outlined in policy above.]
2. The district should [Not shall or must; optional; unenforceable as written.] immediately notify in writing the student’s parents, legal guardian or person acting as a parent and state the charges against the student and the district’s intended action. [Violates students’ rights to due process as outlined in policy above.]
3. The district shall hold a full evidentiary hearing before the school board to consider whether or not the student should be expelled.
4. At the hearing, the student may represent himself/herself or he/she may select a representative.
5. The student/representative may [not “is permitted to”; implies this is optional; not enforceable as written] hear all testimony, and the student and /or representative may [not “is permitted to”; implies this is optional; not enforceable as written] cross-examine all witnesses. [Violates
6. The student/representative is entitled to offer evidence in his/her favor.
D. Discipline for Eligible Students with Disabilities Under the Individuals with Disabilities Education Improvement Act (IDEA), Public Law (PL) 108-466 and implementing regulations found at 34 Code of Federal Regulations Part 300
1. Students with disabilities who engage in misconduct are subject to normal school disciplinary rules and procedures so long as such treatment does not abridge the right to a free appropriate public education (FAPE). [MAY VIOLATE FEDERAL LAW. Federal regulations under IDEA stipulate that a child with disabilities shall not be punished if the “acts” could be a manifestation of the child’s disability and that a “manifestation hearing” is necessary to determine whether “act” could have been manifestation of disability, if “punishment” results in a suspension or expulsion for more than 10 cumulative days.]
2. For students whose disabilities have behavioral aspects, preventive measures, such as behavioral intervention plans, should [not shall or must; optional; unenforceable as written] be considered and can be facilitated through the individualized education program (IEP) and placement processes required by IDEA. In the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. [MAY VIOLATE FEDERAL LAW. "Behaviors" may be a manifestation (result) of the child's disabilities. In the event that a student with disabilities engages in behavior that impedes the learning or that of others, a functional behavior assessment should be completed and a Positive Behavioral Intervention Plan should be created and implemented. Behavioral issues may not be unaddressed, especially where behaviors may lead to “punishment.” Language used in this sentence indicates this is Optional.]
3. Where a child with a disability who violates a code of student conduct is removed by school personnel from his or her current placement to an appropriate interim alternative education setting, another setting, or suspension for ten (10) consecutive school days or less, to the extent those alternatives are applied to children without disabilities, no change of placement is considered to have occurred, and IDEA's parent-notification provisions would not apply. Also, there is no requirement for a prior determination of whether the student's misconduct was a manifestation of the student's disability. [This is inaccurate. IDEA says that, “1) School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under Sec. 300.536) (http://idea.ed.gov/explore/view/p/%2Croot%2Cregs%2C300%2CE%2C300%252E530%2C); not, that a change of placement is not considered to have occurred. Please compare what is written in the federal guidelines here to what follows below ]
Schools may remove any student with disabilities for a disciplinary infraction for up to ten (10) school days per offense during the same school year as long as those removals do not constitute a change of placement. During a period of short-term exclusion, schools are not required to provide any educational services to the student until such time as the student has been suspended or removed for a total of more than ten (10) school days in the same school year. [Note: IDEA says (as is written below) that a district is only required to provide servicing during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less, IF it provides services to children without disabilities. YET, this says that schools are not required to provide any educational services… This is misleading and inaccurate. IDEA also says that it is permissible for “punish” a disabled child for “behaviors” that are or may be a direct manifestation of that child’s disabilities for up to 10 days per year BEFORE anyone needs to determine if the “behaviors” are attributable to the child’s disability. How is this NOT discrimination? What remedy does a child or a family have if their child was suspended for 10 days for doing something that is later to be determined to be directly related to their disability? *Just a personal pet peeve.*]
A district is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for ten (10) school days or less in that school year, if it provides services to a child without disabilities who is similarly removed in accordance with provisions of the IDEA. [Almost word for word from the federal regs, however by separating the paragraph it’s misleading, as outlined above.]
4. School personnel may consider any unique circumstances on a case-by-case
basis when determining whether a change in placement, consistent with other discipline requirements is appropriate for a child with a disability who violates a code of student conduct. [Word for word from the federal regs.]
5. For a student with disabilities, an exclusion from school for more than 10 consecutive school days (long-term exclusion) constitutes a change in placement and is subject to procedural safeguards. IDEA requires, among other things, that parents be given written notice before a change in placement can be implemented. Within ten (10) school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, it must be determined:
(i) If the conduct in question was caused by, or had a direct and substantial relationship to the child's disability; or
(ii) If the conduct in question was the direct result of the District's failure to implement the IEP.
The conduct must be determined to be a manifestation of the child's disability if the district, parent and relevant members of the child's IEP Team determine the condition described above was met. If so, the district must take immediate steps to remedy those deficiencies. If the district, the parent and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child's disability, the IEP Team must either conduct a functional behavioral assessment, and implement a behavioral intervention plan for the child; or if a behavioral intervention plan has already been developed, review the behavioral intervention plan, and modify it in accordance with the provisions of the IDEA. [Almost word for word from the fed regs.]
[It is noteworthy what does not appear to be included from the federal regs here in this policy. For example: (1) A child with a disability who is removed from the child's current placement pursuant to paragraphs (c), or (g) of this section must--
(i) Continue to receive educational services, as provided in Sec. 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP;]
6. A series of short-term suspensions totaling more than ten (10) school days in the same school year could constitute a change in placement. [We're still trying to find support that “short-term suspensions totaling more than 10 days could constitute a change in placement.” Everything we've read thus far leads us to believe that this is erroneous – that it DOES constitute a change in placement, because it falls under “more than 10 cumulative days,” not more than 10 consecutive days, and is subject to the terms of a manifestation determination, etc – but we just may not have found the right reference.] Factors such as the length of each suspension, the total amount of time that the student is excluded from school, the proximity of the suspensions to each other, and whether the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals should [Not shall or must; optional; not enforceable as written] be considered in determining whether the student has been excluded from school to such an extent that there has been a change in placement. This determination must be made on a case-by-case basis.
7. For a student with disabilities, a suspension or other disciplinary removal for more than 10 consecutive school days may not be considered without the school district first determining whether the student’s misconduct was a manifestation of the student’s disability or direct failure to implement the student's IEP. This determination must be made by a group of persons knowledgeable about the student (such as his/her IEP committee), and may not be made unilaterally by one individual.
(i) If the student’s misconduct WAS NOT caused by, or did not have a direct and substantial relationship to the child's disability nor was the direct result of the district's failure to implement the IEP, the school district may expel or suspend the student from school for more than ten school days, in the same manner and for the same duration as the procedures would be applied to children without disabilities, subject to conditions set forth in the procedural safeguards of IDEA. [As mentioned in the note in 5. above, the district may expel the student in the same manner and for the same duration as for non-disabled peers, HOWEVER, the “procedural safeguards” are not spelled out to clearly indicate that the district MUST continue to educate the child so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP Sec. 300.101(a);]
(ii) If the student’s misconduct WAS a manifestation of his/her disability or was the direct result of the district's failure to implement the IEP, the student may not be expelled or suspended from school for more than ten school days for the misconduct. [MAY VIOLATE IDEA. This sentence is convoluted and may be correct, however IDEA says that upon determination that the child’s behavior WAS a manifestation of the child’s disability, districts are required to return the child to the placement from which the child had been removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan, and unless the child’s behavior involved weapons, drugs, or has inflicted serious bodily harm – NOT that the child may not be expelled or suspended for more than 10 days for the misconduct if manifestation of disability- so this appears to be in conflict with IDEA. But again, it’s so convoluted it’s almost unintelligible. However, IDEA permits children with disabilities to be discriminated against solely on the basis that they may have exhibited “behaviors” that “violate school policy” irregardless or their disabilities, even if those disabilities are the reason why the child is “punished.” It does allow the child to be punished on the basis that the district failed to implement that child’s IEP appropriately. So not only is the child being punished for being disabled, but they are being punished for a school district’s negligence. We will be publishing a position statement against this section of the law in the very near future.]
However, other procedures may be used to address the student’s misconduct. A change in placement, if determined appropriate, could be implemented subject to applicable procedural safeguards. The school district would also have the option of suspending the student from school for ten days or less, or seeking a court order at any time to remove the student from school or to change the student’s placement if it believes that maintaining the student in the current placement is substantially likely to result in injury to the student or to others.
8. If the suspension or other disciplinary removal of the student is for more than 10 school days, within the first 10 days of suspension the district must convene the student’s IEP committee to review: (1) the relationship between the student’s disability and the student’s misconduct; (2) the relationship between the student’s IEP and the misconduct; and (3) the student’s IEP and determine whether implementation of a behavioral intervention plan and/or a change in the educational placement of the student is appropriate. The district should [not shall or must; optional; unenforceable as written] seek to obtain parental agreement to a change in the student’s IEP and/or educational placement. The student’s parents must be provided with written prior notice a reasonable time [What constitutes a “reasonable time?” Who determines how much “time” is reasonable?” This needs to be more clearly defined, otherwise it’s unenforceable as written.] before the school implements any changes in the student’s IEP and corresponding placement, including their right to a due process hearing.
9. If the student’s parents request a due process hearing on the proposal to change the student’s IEP or placement or the manifestation determination, the school district may seek to persuade the parents to agree to an interim placement for the student while expedited due process proceedings are pending. If the district believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, the district may appeal the decision of the IEP team by requesting an expedited hearing in accordance with provisions of the IDEA.
10. If a student’s parents initiate an impartial due process hearing in connection with a proposed disciplinary exclusion or other change in placement, and the misconduct does not involve the bringing of a firearm to school, the “pendency” or “stay put” provision of IDEA requires that the student must remain in his or her current educational placement until the completion of all proceedings. If the parents and school district can agree on an interim placement, the student would be entitled to remain in that placement until the completion of all proceedings.
11. For a student not previously identified by the school district as a student potentially in need of special education, a parental request for evaluation or a request for a due process hearing or other appeal AFTER disciplinary suspension or expulsion has commenced DOES NOT obligate the school district to reinstate the student’s prior in-school status. This is because in accordance with the “stay-put” provision of IDEA, the student’s “then current placement” is the out-of-school place. After the disciplinary sanction is completed, if the resolution of the due process hearing is still pending, the student must be returned to school as would a nondisabled student in similar circumstances.
COMMENTARY: It should be noted that, pending the resolution of the due process hearing or other appeal, a court could enjoin the suspension or expulsion and direct the school district to reinstate the student if the court determines that the school district knew or reasonably should have known that the student is a student in need of special education.
12. A school district may seek a court order at any time to remove any student with disabilities from school or to change the student’s current educational placement if the school district believes that maintaining the student in the current educational placement is substantially likely to result in injury to the student or to others.
13. Under IDEA, school districts must ensure that FAPE is made available when a student is suspended for more than ten school days or expelled for misconduct that was not a manifestation of his/her disability therefore, educational services must continue for these students during periods of disciplinary removal that exceed 10 school days.
COMMENTARY: IDEA does not specify the particular setting in which continued educational services must be provided to these students. During the period of disciplinary exclusion from school, each disabled student must continue to be offered a program of appropriate educational services that is individually designed to meet his/her unique learning needs. Such services may be provided in the home, in an alternative school, or in another setting.
Special Provisions of IDEA applicable to students with disabilities who bring a “weapon” to school as defined in federal and state statutes [The Gun-Free Schools Act (GFSA), enacted as Title XIV (Part F) of Title I of the Improving America’s Schools Act, and Arkansas Act 567 of 1995 (Arkansas Code Annotated 6-15-502)]
COMMENTARY: The Gun-Free Schools Act (GFSA) applies to students with disabilities. However, this Act must be implemented consistent with IDEA and Section 504 of the Rehabilitation Act of 1973. Federal statutes define “weapon” to mean “firearm.” State statute addresses possession by students of any “firearm or other weapon” prohibited upon the school campus by law or by policies adopted by the school board. Consistent with the requirements of the GFSA, Arkansas Act 567 of 1995 (Arkansas Code Annotated 6-15-502) requires that local educational agencies (school districts) expel from school for not less than one year a student who brings a weapon to school, except that the local educational agency’s chief administering officer may modify the expulsion requirement for a student on a case-by-case basis. Compliance with the GFSA can be achieved consistent with the requirements that apply to students with disabilities as long as the discipline of such students is determined on a case-by-case basis in accordance with IDEA and Section 504.
1. Under the IDEA, school personnel may remove a student to an interim alternative educational setting for not more than forty-five (45) school days
ADE 253-12 Agency # 005.15
without regard to whether the behavior is determined to be a manifestation of the child's disability, if the child--
(i) carries a weapon to or possesses a weapon at school, on school
premises, or to or at a school function under the jurisdiction of the
district or the Arkansas Department of Education;
(ii) knowingly possesses 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 under the jurisdiction of the district or the Arkansas Department of Education; or
(iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the district or the Arkansas Department of Education.
2. The student’s educational placement cannot be changed beyond the 10 school days until the student’s IEP committee has been convened. As with any meeting of the IEP committee, the parent must be an invited participant. On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents with a procedural safeguards notice under the IDEA. The school district may place the student in an interim alternative educational placement that the committee believes would be appropriate for the student. Such an alternative educational placement could then be implemented for up to 45 school days. If either the student’s parents or the district initiate an expedited due process hearing, and if the parties cannot agree on another placement, the student must remain in the interim alternative educational placement during authorized review proceedings or until the time period specified, whichever occurs first.
3. Section 504 requires a determination by a group of persons knowledgeable about the student, on whether the bringing of the weapon to school was a manifestation of the student’s disability. Under Section 504, a student with a disability may be expelled only if this group of persons determines that the bringing of a weapon to school was not a manifestation of the student’s disability, and after applicable procedural safeguards have been followed.
4. All of the procedural safeguards and other protections of IDEA and Section 504 must be followed. Once it is determined by an appropriate group of persons that the student’s bringing of a weapon to school was not a manifestation of the student’s disability, the school district’s chief administering officer may exercise his/her decision-making authority under the GFSA in the same manner as with nondisabled students in similar circumstances. However, for students with disabilities identified under IDEA who are expelled in accordance with the expulsion provisions of GFSA, educational services must continue during the expulsion period. Nothing in the GFSA may be construed to prevent a State from allowing a school district that has expelled a student with disabilities from the regular educational program/setting from providing educational services to that student in an alternative educational setting.
ADE 253-13 Agency # 005.15
5. If it is determined by the IEP committee (or other knowledgeable group of individuals in the case of a Section 504 review) that the student’s behavior of bringing a weapon to school was a manifestation of the student’s disability, the chief administering officer must exercise his/her authority under the GFSA to determine that the student may not be expelled for the behavior. This is when other immediate steps may be taken, including temporary removal.
6. For students with disabilities who are not eligible for services under IDEA, but who are covered by Section 504 and are expelled in accordance with the above conditions, educational services may be discontinued during the expulsion period if nondisabled students in similar circumstances do not receive continued educational services.
COMMENTARY: In summary, a student with a disability who brings a weapon to school may be removed from school for 10 school days or less, and placed in an interim alternative educational setting by the IEP committee for up to 45 school days. However, if the parents initiate an expedited due process proceeding, the student must remain in the interim alternative placement during these authorized review proceedings – which may exceed 45 school days – unless the parents and school district can agree on a different placement. In addition, school districts may initiate change in placement procedures for such a student, subject to the parents’ right to due process. A school district also could seek a court order if the school district believes that the student’s continued presence in the classroom is substantially likely to result in injury to the student or to others.
ADE 253-14
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