Introduction

Students must comply with established policies governing school conduct This includes special needs children subject to certain protections: N.J.S.A 18A:37-1,2 – Authority to discipline N.J.S.A 6A:16-7.1-7.6 – Suspension/expulsion/due process N.J.S.A 6A:3-1.1 Administrative Appeal 2

General Concepts

Discipline must bear a rational relation to a legitimate state objective Palmer v. Merzulli, 868 F.2d 90 (3 rd Cir. 1989) Arbitrary & Capricious standard of review There are parameters for length of suspension N.J.S.A. 18A:37-5 N.J.A.C. 6A:16-7.3

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General Concepts 2

Due Process Rights vary and depend on the discipline and the nature of the school Public/Private Short or long term suspension or expulsion Academic misconduct 4

Discipline

Does the conduct fall within one of the categories of suspension defined in the statute N.J.S.A. 18A:37-2?

Does the conduct constitute a continuing danger or pose a threat to the physical well being of other pupils or staff?

Does the discipline promote a legitimate policy objective? Does the conduct materially or substantially interfere with the operation of the school?

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Discipline (2)

Is the discipline necessary to maintain orderly conduct of the school?

R.R. Bd. of Ed., 109 N.J. Super 337 (1970) Is there sufficient notice from the Code of Student Conduct that the conduct is subject to discipline and the consequences that will result from the conduct?

Off School Conduct is subject to discipline if it impacts the operations of the school and is reasonably necessary for safety N.J.A.C. 6A:16-7.6 6

Discipline 3

Discipline objectives in a school are not consonant with criminal statutes Criminal Law differs in objectives and goals and the school cannot use criminal charges as a measure or means upon which to impose discipline 7

Code of Student Conduct

N.J.A.C. 6A:16-7.1

Notice of discipline Notice of what conduct will result in what discipline Behavioral expectations Annual reports to the state DOE required Summary of number of violations and action taken 8

Code of Student Conduct (2)

Description of student responsibility / expectations Description of behaviors resulting in suspensions Student’s rights Attendance policies and procedures Policies related to harrassment, intimidation and bullying 9

The Right to a Public Education is Constitutionally Protected

A protected Property Right under the 14 th Amendment Right to a Thorough and Efficient Education Due Process required Extracurricular Activities including the right to attend Graduation Exercises is NOT constitutionally protected; A privilege not a right 10

Short Term Suspension

N.J.A.C. 6A:16-7.2,3 Less than 10 school days Services must be provided after 5 days Includes Special Needs students Due Process required 11

Short Term Suspension (2)

Due Process requires informal hearing only No right to counsel No right to confront witnesses Must be held before suspension occurs Student allowed opportunity to present their side of the story Can be conducted by school administrator or designee Student may be immediately removed if presents threat or danger 12

Short Term Suspension (3)

Right to notice of penalties for specific misconduct What behavior is expected of the student Comparable educational services to be provided within 5 days Consistent with IEP May deny participation in extracurricular activities/graduation exercise 13

Long Term Suspension

N.J.A.C. 6A-7.3

More than 10 school days Must notify student prior to removal Must notify parent Must provide written notice to parent within 2 days of suspension Notice of charges with specificity 14

Long Term Suspension (2)

To provide comparable educational services after 5 days until student graduates or turns 20 Consistent with IEP Legal Resource Available Manifestation determination for a student with a disability 15

Long Term Suspension (3) Due Process Rights

Notice of specific charges List of witnesess, statements and affidavits, all evidence Formal hearing before BOE/Committee Opportunity to confront and cross-examine witnesses Counsel permitted 16

Long Term Suspension (4)

Dixon v. Alabama, 294 F.2d 150 (5 th cert. den. 368 U.S. 930 (1961) Cir. 1961), Goss v. Lopez, 419 U.S. 565 ( 1975) Minimal due process for short term suspension; full due process hearing for long term suspension 17

Long Term Suspension (5)

Hearing must take place within 30 days Suspension cannot be continued beyond 2 extend it. N.J.S.A. 18A:37-5 nd regular meeting of BOE without Board action to Board must determine whether to continue the suspension based on nature of conduct, results of testing, assessment and recommendations 18

Long Term Suspension (6)

*Must have a Behavioral Assessment including referral to Child Study Team N.J.A.C. 6A:16-7.3

*Must Remove from General Education Setting: Firearms, assaults, threat of bodily injury, danger to himself or others N.J.A.C. 6A:16-7.4

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Long Term Suspension (7)

Can request a transcript Bd of Ed. Decision may be appealed to the Cmr. of Ed. N.J.S.A. 18A:6-9 Appeals are thereafter reviewable by the Courts. N.J.S.A. 18A:27 20

Expulsions

N.J.S.A 18A:37-2 N.J.A.C. 6A:16-7.5

All procedural due process rights prior to expulsion Must be provided with an educational program comparable to public school 21

Long Term Removal – 45 Days

Can remove a student for up to 45 days Place in an Interim Alternative Educational Setting (“IAES”) Automatic removal for: Weapons Illegal drugs Serious bodily injury. 18 U.S.C. Sec. 1365 (h)(3) Dangerous to others The same applies for special needs student. 20 U.S.C. 1415 (k)(1)(G) 22

Alternative Educational Placement

An alternative educational placement is a “non traditional environment that addresses the individual learning styles and needs of disruptive or disaffected students at risk of school failure or mandated for removal from general education, based upon an Individualized Placement Plan and New Jersey Core Curriculum Standards and has been approved by the Commissioner of Education. N.J.A.C. 6A:16-1.3

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Alternative Educational Placement (2)

Entitled to: Educational services after 5 day suspension Alternative placement after 10 day suspension Home instruction or placement in another school Curriculum commensurate with grade level or program : If unavailable, BOE must provide home or other out of school instruction. This includes expulsion.

N.J.A.C. 6A:16-9.1

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College & Post High School Settings

Distinguish between academic vs. misconduct as basis for expulsion/suspension Due process requirements and court review severely restricted for academic decisions Dismissals for academic reasons do not necessitate a hearing or any formal procedures 25

College (2)

Counsel not permitted internal hearing process Student handbook controls Dixon/Goss cases limited to discipline, not academic dismissals University of Missouri v. Horowitz, 435 U.S. 78 (1977) Van de Zilver v. Rutgers University, 971 F. Supp. 925 (D.N.J. 1997) Hernandez v. Don Bosco, 322 N.J. Super. 1 (App. Div. 1999) 26

Expulsion: Private School = Law of Associations Similar legal analysis to being kicked out of a club Very low level scrutiny Rational relationship not required Arbitrary & Capricious Must show violation of policy and rules Calabrese v. Policemen’s Benevolent Association 157 N.J. Super. 139 (1978) 27

Litigation – Causes of Action

Thorough and Efficient Education – Article III, Section IV, NJ Constitution Arbitrary & Capricious – lack of due process/violation of policy Deprivation of constitutional rights - 42 U.S.C. Sec. 1983/ NJCRA 1 ST Amendment – Speech, Association 14 th Amendment – Due process/equal protection/liberty right 4 th Amendment search and seizure 28

Litigation – Causes of Action (2)

Section 504 of the Rehabilitation Act of 1973 Special Needs – IDEA Administrative Remedy only – No $ Damages Violation of LAD – Law Against Discrimination, N.J.S.A. Title 10:5-3, et als Violation of the ADA – Americans with Disabilities Act Violation of Title VI 29

Litigation – Causes of Action (3)

Violation Title IX – Sexual Harrassment Breach of contract/implied contract – student handbook Promissory estoppel/reliance Negligence/failure of supervision- Title 59 30

Forums

Administrative/Federal/State DCR, OCR, OAL Exhaustion of administrative remedies Appeal: 90 days to appeal from BOE determination Bureau of Controversies and Disputes 31

Remedies

Reinstatement including all privileges Compensatory education Expungement of school record Financial damages only in state/federal court Change of school Out-of-district placement/referral to child study team 32

When to Litigate

Permanent school record Over 10 day suspension Expulsion Serious psychological harm Restraint cases Bullying that creates need for CST intervention/disability As well as meeting requirement of LAD case 33

Manifestation Determination & Hearing

Special Needs Child entitled to a determination whether the conduct resulting in discipline was caused by the disability.

Dispute must involve a change in placement – any suspension over 10 days including 10 cumulative school days in a school year 34

Manifestation Determination (2)

Parents to meet with IEP team to determine: Whether the conduct in question was caused by, or had a direct and substantial relationship to the student’s disability, or Whether the conduct in question was the direct result of the District’s failure to implement the IEP If Yes, the behavior will be considered a manifestation of the student’s disability IDEA 20 U.S.C. Sec. 1415(k)(1)(c) and (e) 35

Manifestation Determination (3)

Child known to be eligible for special needs is also protected - 20 U.S.C. Sec. 1415(k)(5)(B) Child must remain in placement in IAES during litigation/appeal over the dispute - Stay-Put 20 U.S.C. Sec. 1415 (k)(4)(A) Unique circumstances to be considered on a case by case basis 20 U.S.C. Sec. 1415 (k)(a)(A) 36

The FBA and the BIP

IEP team must conduct an FBA – Functional Behavioral Assessment IEP team must implement a BIP – Behavioral Improvement Plan FBA identifies triggers and causes for the behavior/antecedents BIP is co-extensive with FBA and focuses on stopping the behavior BIP must be developed within 10 business days after removal for more than 10 school days If the infraction is found not to be a manifestation of a disability, same discipline to be imposed as a non-disabled peer 37