Suspension and Expulsion of Students

 By Kirsch-Goodwin & Kirsch, PLLC, Arizona Education Attorneys

        

Discipline of students in Arizona public schools is covered in Arizona Revised Statutes at Title 15 (Education), Chapter 8 (School Attendance), Article 3 (Suspension and Expulsion of Pupils), Sections 15-840 through 15-844.  In Arizona, all students are required to comply with school rules and submit to the authority of teachers and school administrators. A.R.S. § 15-841(A).  

Students with IEPs and 504 Plans have extra protections under federal and state laws when it comes to discipline.  But the cornerstone of student discipline is balancing two separate rights of students: the constitutional right to a public education, and the right to a safe and orderly learning environment.  Procedures and laws in place to protect students from arbitrary and wrongful discipline are necessary, as are procedures and laws to allow schools to discipline disruptive and dangerous students.

First, let’s get the terminology down: 

Suspension is the temporary withdrawal of attending school for a specified period of time.  It can be “short term” – up to ten (10) days, or “long term,” eleven (11) or more days. A.R.S. § 15-840. 

Expulsion is the “permanent withdrawal of the privilege of attending a school unless the governing board [of the school district or charter school] reinstates the privilege of attending the school.”  A.R.S. § 15-840.  Usually a student can re-apply for admission after one year.  Although education is a right, note that the Arizona statute still calls it a “privilege.” 

Students in Arizona may be expelled for continued open defiance of authority, continued disruptive or disorderly behavior, violent behavior that includes use or display of a dangerous instrument or a deadly weapon ("anything designed for lethal use, including a firearm"), use or possession of a gun, or excessive absenteeism." A.R.S. § 15-841(B).  Students over age 16 and those who completed the course of study through tenth grade may be expelled for excessive absenteeism.  Id.  The law also allows school districts to expel students for actions other than those listed in the statutes as the school district deems appropriate."  Id. 

A school district or charter school “shall expel for a period of not less than one year” a student who brings a firearm to a school, or a student who is determined to have threatened an educational institution, except that the school district or charter school may modify these expulsion requirements for a student on a case by case basis.  A.R.S. §§ 15-841(G) and (H).  These subsections “shall be construed consistently with the requirements of the [IDEA].”  Id. 

The “Gun-Free Schools Act,” 20 U.S.C.  § 1751, requires each state that receives federal funds to have in effect a state law requiring expulsion from school for not less than one year any student who brings a weapon to campus.  Arizona’s state law is A.R.S. § 15-841(G).  However, schools are not permitted or required to expel students with IEPs without adherence to the procedural safeguards of the IDEA and the Gun-Fee Schools Act does not eliminate the school district's obligation to provide the student with a free appropriate public education (FAPE) following the expulsion.  Congressional guidance concerning state and local responsibilities under Gun-Free Schools Act states that students with disabilities removed from school pursuant to the Act must be provided with alternative programming during the disciplinary exclusion, and the Act specifically states that its provisions must be construed consistently with the IDEA. Magyar By and Through Magyar v. Tucson Unified School Dist., D.Ariz.1997, 958 F.Supp. 1423.

Students in Arizona may be expelled for continued open defiance of authority, continued disruptive or disorderly behavior, violent behavior that includes use or display of a dangerous instrument or a deadly weapon (“anything designed for lethal use, including a firearm”), use or possession of a gun, or excessive absenteeism.”  A.R.S. § 15-841(B).  Students over age 16 and those who completed the course of study through tenth grade may be expelled for excessive absenteeism.  Id.  The law also allows school districts to expel students for actions other than those listed in the statutes as the school district deems appropriate.”  Id.

There are numerous sources of law governing student discipline, but no federal statutes.  States’ Constitutions typically guarantee every child between five and 18 years of age the right to an educ.  But that right to education is of course impacted by school suspensions and expulsions.

Schools districts and charter schools have student codes of conduct that provide for multi-tiered, or graduated, consequences, based on number of times the behavior occurred and the severity of the behavior.  The codes identify the offenses or circumstances that either must (look for the word “shall”) or may (permissive, not mandatory) either long-term suspension or expulsion. 

All students have a right to due process before being suspended for more than ten (10) days.  That right to due process was established in 1975 in the Supreme Court case, Goss v. Lopez, 419 U.S. 565 (1975).  Dwight Lopez was a high school student in Ohio.  In February 1971, a number of students were involved in a disturbance in the school cafeteria causing property damage.  Dwight denied he was involved, but he was suspended for ten days before he could give his side of the story.  Schools in Ohio were allowed to suspend or expel a student for misconduct as long as their parents were informed of the discipline and the reasons for it within 24 hours.  A student who was expelled was allowed to appeal the decision to the Board of Education but a student who was suspended was not allowed to appeal.  Dwight and eight other students who were suspended brought suit in Federal District Court claiming violation of their 14th Amendment right to due process.  The 14th Amendment states that:  [No State …shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  The District Court ruled in favor of the students, and the school district appealed the decision to the United States Supreme Court.  The Supreme Court handed down its decision in January 1975 holding (declaring) that students facing suspension "must be given some kind of notice and afforded some kind of hearing" before being deprived of their education.”  The United States Supreme Court held that all public school students have a legitimate entitlement to a public education that rises to the level  of a constitutionally protected property interest.

Thus, a student’s property interest in their education cannot be taken from them without prior adherence to minimum due process standards.  Thus, all removals of students from education for misconduct must comply with appropriate due process standards of notice and opportunity to be heard.  The Supreme Court also held that lengthy suspensions or expulsions (over 10 consecutive school days) require a commensurately higher degree of formality in the due process protections than would short-term suspensions in response to more minor misbehavior.  But all disciplinary removals require some degree of notice and opportunity to be heard.

Thus, all students suspended for fewer than 10 days are entitled to minimal due process, which is very informal, often just a verbal conversation between a student and a school administrator. For a suspension expected to last longer than 10 days, which is a long-term suspension, or an expulsion, a formal hearing is required – called a “disciplinary due process hearing,” not to be confused with an IDEA due process hearing - for both general education students and students with disabilities (although students with an IEP may not be expelled – discussed below).  Thus, for long-term suspensions (more than 10 days) and expulsions, the elements of due process are much more formal. 

Each school district and charter school has its own specific disciplinary due process hearing procedures, but most will include the following elements:  notice and fair hearing with opportunity to be heard.  The notice to the student and parent must be in writing, provide the date, time and location of the hearing, the specific charges, including applicable facts, rules violated, and a copy of the rules should be provided.  The punishment being considered must be set forth, as well as a list of witnesses and copies of exhibits must be provided. Also, the name of the hearing officer must be provided. Every school district and charter school has in its policies the number of days in advance that the notice is to be sent and how it is to be sent, for example, first-class mail or certified mail.

The student and parent should also be informed of their right to attend the hearing, bring counsel at their own expense, access adverse evidence and student records prior to hearing, present witnesses and cross examine the district/school’s witnesses, make a  recording of the hearing, or obtain a copy of the recording of the hearing.  The parent is also given the option of having the hearing closed or open.  The burden of proof is on the administration of the district or charter school.  Both sides should have an opportunity to present an opening and closing statement if desired, and to present and cross-examine witnesses.

The hearing is held before a so called “Independent Hearing Officer” (“IHO”).  The IHO should not have contact with any of the parties unless the parties are both present, and unless contact is limited to items like scheduling of the hearing, should not pre-judge the student prior to the hearing. and may be an employee of the district/charter school, but should not be an employee with a stake in the matter (e.g. the principal who is recommending long-term suspension or expulsion).

Hearing decisions should be in writing, should summarize the events of the hearing, should list applicable appeal procedures, and state the appeal procedures.  Decisions regarding long-term suspensions can be appealed to Governing Board of the school district or charter school.  Decisions regarding expulsions are not appealable if the hearing was conducted by Governing Board.  If a recommendation was made to the Governing Board by an appointed Hearing Officer, the recommendation can be argued before the Governing Board makes the final decision regarding the expulsion.

Bear in mind that some states, including Arizona, allow school districts as well as charter schools to refuse to admit any student who has been expelled from another educational institution or who is in the process of being expelled from another educational institution.  A.R.S. §§ 15-184(I)(charter schools)(“ A charter school may refuse to admit any pupil who has been expelled from another educational institution or who is in the process of being expelled from another educational institution”) and 15-841(C)(public school districts)(“ A school district may refuse to admit any pupil who has been expelled from another educational institution or who is in the process of being expelled from another educational institution”).