Public School Law Teachers` and Students` Rights

Public School Law Teachers` and Students` Rights

9 781292 041810
Public School Law: Teachers' and Students' Rights McCarthy et al. 7e
ISBN 978-1-29204-181-0
Public School Law
Teachers' and Students' Rights
McCarthy Cambron-McCabe E. Eckes
Seventh Edition
Pearson Education Limited
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ISBN 10: 1-292-04181-1
ISBN 10: 1-269-37450-8
ISBN 13: 978-1-292-04181-0
ISBN 13: 978-1-269-37450-7
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Printed in the United States of America
Student Discipline
raise difficult First Amendment issues for school officials attempting to discipline students
for off-campus conduct.14 The Third Circuit in two cases held that students could not be
punished for MySpace parodies of their principals that were created at their homes and
did not create a substantial and material disruption of the school environment.15 The
Third Circuit cautioned: “It would be an unseemly and dangerous precedent to allow the
state, in the guise of school authorities, to reach into a child’s home and control his/her
actions there to the same extent that it can control that child when he/she participates in
school sponsored activities.”16
In assessing off-campus disciplinary actions, courts look for a detrimental impact
on the school environment. Accordingly, courts have upheld sanctions imposed on students for engaging in assault or criminal acts off school grounds;17 compiling a list of
other students noting derogatory characteristics;18 making threatening, racist phone calls
to another student;19 and writing a threatening letter over the summer break to a former
girlfriend.20 Courts, however, have prohibited school authorities from punishing students
for misbehavior off school grounds if pupils had not been informed that such conduct
would result in sanctions,21 if the conduct could not be considered a true threat,22 or if
the misbehavior had no direct relationship to the welfare of the school.23
School personnel should avoid placing unnecessary constraints on student behavior.
In developing disciplinary policies, all possible means of achieving the desired outcomes
should be explored, and means that are least restrictive of students’ personal freedoms
should be selected. Once it is determined that a specific conduct regulation is necessary, the rule should be clearly written so that it is not open to multiple interpretations.
Each regulation should include the rationale for enacting the rule as well as the penalties
for infractions. Considerable discretion exists in determining that certain actions deserve
harsher penalties (i.e., imposing a more severe punishment for the sale of drugs as opposed to the possession or use of drugs).
To ensure that students are knowledgeable of the conduct rules, it is advisable to
require them to sign a form indicating that they have read the conduct regulations. With
such documentation, they would be unable to plead ignorance of the rules as a defense
14
The Cyberbullying Research Center examined twenty-two studies published in peer-reviewed journals showing
the percentage of students who are victims of cyberbullying range from 5.5 percent to 72 percent, with an average
of about 27 percent; the Center’s researchers’ most recent study in 2010 found 21 percent, http://cyberbullying.us/
research.php.
15
Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011), cert. denied sub nom., Blue Mountain Sch. Dist.
v. J.S. ex rel. Snyder, 132 S. Ct. 1097 (2012); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir.
2011), cert. denied, 132 S. Ct. 1097 (2012).
16
Layshock, 650 F.3d at 216.
17
Pollnow v. Glennon, 757 F.2d 496 (2d Cir. 1985); Nicholas v. Sch. Comm. 587 N.E.2d 211 (Mass. 1992).
18
Donovan v. Ritchie, 68 F.3d 14 (1st Cir. 1995).
19
E.K. v. Stamford Bd. of Educ., 557 F. Supp. 2d 272 (D. Conn. 2008).
20
Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002). The junior high school student did not send
the letter, but another student who read the letter communicated its content to the former girlfriend.
21
Galveston Indep. Sch. Dist. v. Boothe, 590 S.W.2d 553 (Tex. Civ. App. 1979).
22
Porter v. Ascension Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004).
23
Killion v. Franklin Reg’l Sch. Dist., 136 F. Supp. 2d 446 (W.D. Pa. 2001).
113
Student Discipline
for their misconduct. In general, educators would be wise to adhere to the following
guidelines:24
•Rules must have an explicit purpose and be clearly written to accomplish that
purpose.
•Any conduct regulation adopted should be necessary in order to carry out the
school’s educational mission; rules should not be designed merely to satisfy the
preferences of school board members, administrators, or teachers.
•Rulesshouldbepublicizedtostudentsandtheirparents.
•Rulesshouldbespecificandclearlystatedsothatstudentsknowwhatbehaviors
are expected and what behaviors are prohibited.
•Student handbooks that incorporate references to specific state laws also should
include the law or paraphrase the statutory language.
•Regulations shouldnotimpairconstitutionally protected rights unlessthereisan
overriding public interest, such as a threat to the safety of others.
•Aruleshouldnotbe“expostfacto”;itshouldnotbeadoptedtopreventaspecific
activity that school officials know is being planned or has already occurred.
•Regulationsshouldbeconsistentlyenforcedanduniformlyappliedtoallstudents,
without discrimination.
•Punishments should be appropriate to the offense, taking into consideration the
child’s age, sex, disability (if any), and past behavior.
•Some procedural safeguards should accompany the administration of all punishments; the formality of the procedures should be in accord with the severity of the
punishment.
•Periodicreviewtoreviseandrefinethestudenthandbookshouldinvolvestudents
and school staff members.
In designing and enforcing pupil conduct codes, it is important for school personnel to bear in mind the distinction between students’ substantive and procedural rights.
If a disciplinary regulation or the administration of punishment violates substantive rights
(e.g., restricts protected speech), the regulation cannot be enforced nor the punishment
imposed. When only procedural rights are impaired, however, the punishment eventually can be administered if determined at an appropriate hearing that the punishment is
warranted.
expulsions and suspensions
Expulsions and suspensions are among the most widely used disciplinary measures.
Courts uniformly have upheld educators’ authority to use such measures as punishments,
but due process is required to ensure that students are afforded fair and impartial treatment. Although states have recognized that students have a property right to an education, this right may be taken away for violations of school rules. This section focuses on
disciplinary action in which students are removed from the regular instructional program.
24
See Thomas Baker, Construing the Scope of Student Conduct Codes, 174 eDuC. l. reP. 555–88 (2003), for an
extensive discussion of the development of conduct codes.
114
Student Discipline
expulsions
State laws and school board regulations are usually quite specific regarding the grounds
for expulsions—that is, the removal of students from school for a lengthy period of time
(usually in excess of ten days). Such grounds are not limited to occurrences during school
hours and can include infractions on school property immediately before or after school
or at any time the school is being used for a school-related activity. Expulsions also can
result from infractions occurring en route to or from school or during school functions
held off school premises. Although specific grounds vary from state to state, infractions
typically considered legitimate grounds for expulsion include violence, stealing or vandalizing school or private property, causing or attempting to cause physical injury to others,
possessing a weapon, possessing or using drugs or alcohol, and engaging in criminal
activity or other behavior forbidden by state laws.
State statutes specify procedures for expulsion and
length limitations. Except for the possession of weapons, a student generally cannot be
expelled beyond the end of the current academic year unless the expulsion takes place
near the close of the term. A teacher or administrator may initiate expulsion proceedings,
but usually only the school board can expel a student. Prior to expulsion, students must
be provided procedural protections guaranteed by the United States Constitution; however, school officials can remove students immediately if they pose a danger or threat to
themselves or others. No duty exists to provide an educational alternative for a properly
expelled student unless the school board policies or state mandates specify that alternative programs must be provided or the student is receiving special education services.25
Although the details of required procedures must be gleaned from state statutes and
school board regulations, courts have held that students facing expulsion from public
school are guaranteed at least minimum due process under the Fourteenth Amendment.
Expulsion hearings do not have to conform to the judicial requirements of a trial, but it is
advisable to provide the following safeguards:
pRoCeduRal RequiRements.
•writtennoticeofthecharges;theintentiontoexpel;theplace,time,andcircumstances of the hearing; and sufficient time for a defense to be prepared;26
•afullandfairhearingbeforeanimpartialadjudicator;27
•therighttolegalcounselorsomeotheradultrepresentation;28
•therighttobefullyapprisedoftheprooforevidence;29
•theopportunitytopresentwitnessesorevidence;
•theopportunitytocross-examineopposingwitnesses;and
25
See infra text accompanying note 65; Gun-Free Schools Act, 20 U.S.C. § 7151 (2012) (allowing school officials
to place students expelled for gun possession in alternative instructional programs).
26
See, e.g., Brian A. v. Stroudsburg Area Sch. Dist., 141 F. Supp. 2d 502 (M.D. Pa. 2001) (ruling that a five-day
notice was adequate when the student and parent had been aware of the pending expulsion for weeks).
27
See, e.g., Christy v. McCalla, 79 So. 3d 293, 304 (La. 2011) (holding that a student was not deprived of due
process when he received “full opportunity to present his version of events”).
28
Courts have recognized students’ right to seek advice of legal counsel but have not held that a right exists for
students’ attorneys to participate in a disciplinary proceeding in the role of trial counsel.
29
See E.K. v. Stamford Bd. of Educ., 557 F. Supp. 2d 272 (D. Conn. 2008) (holding hearsay evidence was admissible in an expulsion hearing).
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Student Discipline
•sometypeofwrittenrecorddemonstratingthatthedecisionwasbasedontheevidence presented at the hearing.30
Students and parents cannot claim denial of due process rights if they waive the
right to a hearing31 or choose not to involve counsel or present evidence.32 Also, students
who decline to attend a scheduled expulsion hearing waive the right to present their
case.33
The specific procedural safeguards required, however, may vary, depending on the
circumstances of a particular situation. In a Mississippi case, a student and his parents
claimed that prior to an expulsion hearing, they should have been given a list of the witnesses and a summary of their testimony.34 Recognizing that such procedural protections
generally should be afforded prior to a long-term expulsion, the Fifth Circuit nonetheless
held that they were not requisite in this case. The parents had been fully apprised of the
charges, the facts supporting the charges, and the nature of the hearing. Consequently, the
court concluded that the student suffered no material prejudice from the school board’s
failure to supply a list of witnesses; the witnesses provided no surprises or interference
with the student’s ability to present his case. In another case involving expulsion for possession of drugs, the same court found no impairment of a student’s rights when he was
denied an opportunity to confront and rebut witnesses who accused him of selling drugs.35
The names of student witnesses had been withheld to prevent retaliation against them.
Similarly, the Sixth Circuit noted that it is critical to protect the anonymity of students
who “blow the whistle” on classmates involved in serious offenses such as drug dealing.36
Although the right to cross-examine witnesses did not constitute a denial of due process
in this case, the court held that the student’s procedural rights were violated because the
superintendent disclosed evidence in the school board’s closed deliberations that was not
introduced during the open hearing. Given this violation, the appellate court remanded
the case to determine if the student was entitled to injunctive and compensatory relief.
State laws and school board policies often provide students facing expulsion with
more elaborate procedural safeguards than the constitutional protections noted earlier.
Once such expulsion procedures are established, courts will require that they be followed.37
Under Ohio law, a student’s expulsion hearing two weeks after he received the notice was
30
See, e.g., Hass v. W. Shore Sch. Dist., 915 A.2d 1254 (Pa. Commw. Ct. 2007).
See Porter v. Ascension Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004) (concluding that when a student admits his
guilt, the need for a hearing to determine guilt is significantly lessened).
32
See, e.g., Stinney v. Sumter Sch. Dist. 17, 707 S.E.2d 397 (S.C. 2011).
33
See, e.g., Remer v. Burlington Area Sch. Dist., 286 F.3d 1007 (7th Cir. 2002).
34
Keough v. Tate Cnty. Bd. of Educ., 748 F.2d 1077 (5th Cir. 1984); see also Covington Cnty. v. G.W., 767 So. 2d
187 (Miss. 2000) (ruling that school officials’ failure to provide a list of witnesses did not violate a student’s due
process rights).
35
Brewer v. Austin Indep. Sch. Dist., 779 F.2d 260 (5th Cir. 1985); see also Brown v. Plainfield Cmty. Consol. Dist.
202, 522 F. Supp. 2d 1068 (N.D. III. 2007) (ruling that a student expelled for inappropriately touching a teacher
did not possess a constitutional due process right to cross-examine student witnesses in his hearing).
36
Newsome v. Batavia Local Sch. Dist., 842 F.2d 920 (6th Cir. 1988); see also Scanlon v. Las Cruces Pub. Schs.,
172 P.3d 185 (N.M. Ct. App. 2007) (ruling that a student’s procedural due process rights were not violated when
school officials did not disclose the names of student informants who reported that the student had marijuana
in his car).
37
The failure to enact required state rules or to follow them, however, would violate state law rather than the
Federal Constitution; see, e.g., Vann ex rel. Vann v. Stewart, 445 F. Supp. 2d 882 (E.D. Tenn. 2006); Rogers v.
Gooding Pub. Joint Sch. Dist., 20 P.3d 16 (Idaho 2001).
31
116
Student Discipline
found to violate a statutory requirement that hearings be held no later than five
school days after notification.38 A Washington appellate court held that a student’s
due process rights were violated when he was not allowed to question witnesses at
his expulsion hearing;39 Washington law specifically provides students the right to
confront witnesses.
Students also have challenged expulsions as violating their substantive due process
rights. In these instances, school officials have provided full procedural due process, but
students allege that the government has deprived them of rights (i.e., school attendance)
without reasonable justification. It is often referred to as government abuse of power
that “shocks the conscience.”40 The Seventh Circuit ruled that a student’s substantive due
process rights were not violated when he was expelled for public indecency and possession of pornography after a fellow student jokingly took pictures of him and several
classmates in the shower after a wrestling match. The court said the educators’ actions
in expelling the student simply did not rise to the level of a constitutional violation. The
court reasoned that even though officials overreacted and used questionable judgment,
their actions did not elevate the expulsion to a constitutional matter.41 In an Ohio case,
a student charged with defacing school property, threatening student lives, and creating
widespread panic, claimed violation of her substantive due process rights because the
school district based the expulsion on her confession, which was suppressed by a juvenile court.42 The court held that a rational relationship existed between the school board’s
expulsion and the student’s offenses, and the board did not violate her constitutional
rights in considering the confession, which was made during her hearing,
ZeRo-toleRanCe poliCies. The concern about school safety has led to specific federal
and state laws directed at the discipline of students who bring weapons onto school
campuses. Under the Gun-Free Schools Act of 1994 requirements, all states have enacted
legislation requiring at least a one-year expulsion for students who bring firearms to
school.43 In expanding the scope of the law, states have added to the list of prohibitions
by including weapons such as knives, explosive devices, hand chains, and other offensive
weapons as well as drugs and violent acts.44 The federal law also requires state laws to
38
Kresser v. Sandusky Bd. of Educ., 748 N.E.2d 620 (Ohio Ct. App. 2001).
Stone v. Prosser Consol. Sch. Dist. No. 116, 971 P.2d 125 (Wash. Ct. App. 1999); see also T.T. v. Bellevue Sch.
Dist., 376 F. App’x 769 (9th Cir 2010), on remand No. C08-365RAJ, 2010 U.S. Dist. LEXIS 131409 (W.D. Wash.
Dec. 13, 2010) (confirming a student’s right under state law to confront witnesses).
40
See infra text accompanying note 79.
41
Tun v. Whitticker, 398 F.3d 899 (7th Cir. 2005).
42
Lausin v. Bishko, 727 F. Supp. 2d 610 (N.D. Ohio 2010); see also Hannemann v. S. Door Cnty. Sch. Dist., 673
F.3d 746 (7th Cir. 2012) (ruling that a former student, who was subsequently banned from school property, did
not have a constitutional right as a member of the general public to access school property; court concluded
that the ban did not violate the former student’s liberty interests).
43
20 U.S.C. § 7151 (2012). Additionally, most states have enacted gun-free or weapons-free school zone laws
restricting possession of firearms in or near schools.
44
See R.H. v. State, 56 So. 3d 156 (Fla. Dist. Ct. App. 2011) (holding that a student who brought a common
pocketknife to school could not be adjudicated of a crime because Florida law, unlike many other state laws,
specifically exempts pocketknives from its ban on weapons); F.R. v. State, 81 So. 3d 572 (Fla. Dist. Ct. App. 2012)
(determining that a folding knife with a notch grip, a locking blade mechanism, and a hilt guard was not a
pocketknife exempt under Florida law).
39
117