Every child has a right to an education. Federal as well as New York law ensure that all public school students are entitled to something called general due process if they are suspended. While not as extensive as the kind of due process given criminal offenders under our constitution, courts have said that all students must be given the right to confront witnesses and present their side of the story in a hearing before this right may be taken away.  (Due process also means different things in a private school setting.)




In New York, there are additional rights that students have based on state statutes, regulations and local law (often the school's Code of Conduct).




It is always advisable for parents to read what is on their school's and district's website in regards to parent and student handbooks as well as codes of conduct so they better understand how their school handles disciplinary violations. Some schools are very strict—especially in the upper grades—due to the large size of those schools. Others are less strict, but still have some rules as schools are aware of the studies stating that correcting issues early on or in elementary school is easier than trying to correct them in middle and high school (although some illnesses, and/or teenage hormones, will create different issues that aren't foreseeable, which is something the school should take into account and be ready to be less punishing and more nurturing).




In general the greater the threatened punishment, the greater the amount of due process a child is afforded.




It is always advisable to see your child's records once per year prior to any shredding that may take place, as there may be minor disciplinary infractions on their record of which you were unaware. These disciplinary records are available in the superintendent's office usually.




At the start of any complaint by staff or another student, against your child the school will do an investigation, which may involve speaking to your child without your consent. They are allowed to do this in limited circumstances. However, they may not do so if your child has a disability and you have previously indicated in a letter or in the child's IEP that during any disciplinary infraction you must be called when the school wants to speak to your child, or if the child cannot understand what is being asked of him. They may even ask your child to sign a statement, which many children will do, sometimes without knowing what they are signing. Children need to be made aware they do not have to talk or sign anything. They may not involve police in their interrogations, however.




If a child is given a detention, he has a right to know what it is for and to dispute the charge. A teacher removal for bad behavior gives a child certain rights as well which include meeting with the principal. If the punishment is an in-school suspension, the child and parent have a right to know the charges, meet with the principal and tell their side of the story. With out-of-school suspensions, a phone call should be made prior to whenever the decision to suspend has been made and obviously subsequent to any investigation but in any event within 24 hours of the decision to suspend.


 A letter must be sent home if the child is given an out-of-school suspension of five days or less, which clearly states the charges, the parent and child's right to meet with the principal, confront the witness, and tell their side of the story. There should also be information in the letter regarding the right to appeal the decision and timelines for these short suspensions can be VERY short—as little as five days--but the Code of Conduct will usually indicate this, too. You also have a right to request to see any videotape that was made during the time you have the conference or at the school's office.







If, during this time the parent receives a letter that the school's investigation has determined a hearing must take place (not uncommon where there already has been a short-term out of school suspension on the same charge), the parent has the right to a hearing on the facts, which in many cases is much like the principal's meeting, however the school's attorney is present and a parent may also have an attorney present (and may get a one-time change in date to find one). There will be an upper level administrator/contracted hearing officer who will hear the facts and make a determination as to the child's guilt or innocence, plus a transcriptionist or recorder to record the hearing. The end result may be a long-term suspension of greater than 5 days, but usually weeks or months.




The parent may bring anyone they want to the hearing in order to submit evidence of good behavior and possible excuses for the behavior at the penalty part of the hearing (mitigating factors). However, a parent should know that the hearing officers themselves most often are school personnel or former school personnel and tend to think like administrators, which is to say, they enforce the rules in order to set an example.




Solutions like restorative justice (allowing the child to make amends to the community in a specific and teachable moment) are an excellent example of something that could be used when the conduct is not egregious, e.g. for short-term or in-school suspensions, but otherwise the school is looking to punish the student and/or to remove the student from the school in order to calm things down.




However, in these times, long term suspension hearings (otherwise called Section 3214 or superintendent's hearings) are most likely to result where drugs, guns or other violent or serious behavior is involved. Getting an attorney is helpful as these hearings must be held within the first five days of suspension without a request for an extension (adjournment), and it is difficult to gather facts in that time. Once adjourned, the child must wait weeks for a rescheduled hearing, during which time he is not allowed the same number of hours of instruction, unless he is a special education student, in which case he is entitled to education to compensate for the missing hours. However, it may give the parties time to gather evidence and work things out. Also, parents and school may benefit from attorney intervention where there has been a breakdown in communication between the parties.




If a child has an IEP or 504 plan, they may be entitled to a manifestation hearing, in which the CSE team asks whether the IEP was implemented correctly, and whether the child's behavior was a manifestation of his or her disability. This applies when suspensions in excess of 10 days have taken place, however, see below. Services and a free appropriate public education must be provided during this time to students with an IEP. Depending on the outcome, this may bring relief from the charges. If the team finds the child's behavior is a manifestation of his disability or the behavior plan or IEP was not followed, the child is not penalized for his or her behavior.




Further, if your child has an IEP or 504 plan the school may not suspend to avoid implementing or revising the child's behavioral plan, or to avoid doing additional assessments that may reveal information that can be utilized in obtaining a free appropriate education (FAPE) in the least restrictive environment (LRE). Finally, your child may not be interviewed alone if it impacts his or her disability, i.e. he or she is unable to understand the questioning, the charges, what he is being asked to sign, or is likely to get anxious or sick from being held in an office against his or her will. You, as a parent, have a right to have this be part of your child's IEP and should insist on it.




During the hearing, while the school's attorney will take the lead, be aware that your child does not have the same rights as a person who is in criminal court. If in fact there are criminal charges pending in juvenile court, the child should not take the stand. He does not have to admit to anything in the hearing but the school's attorney must prove his case with enough evidence—not beyond a reasonable doubt—but something called preponderence of the evidence. In many cases, the school's attorney is a skilled litigator and children will be traumatized by the experience of taking the stand, so it is not advisable unless the child is older and wants to do it.




There are few court rules, although you can object to relevancy (whether evidence matters), any kind of behavior by the school that seems unfair, or does not seem to be part of the code of conduct in the way it was enforced or the way it was written in the letter. If there is badgering of the witness, say so. If you, the parent, have a disability, make sure you ask the school for reasonable accommodations, like breaks, beforehand. An attorney can help with other strategies based on emerging caselaw, but this is a start.




During the hearing the burden of proving the child committed the act is on the school district, who will present their case and interview their main witness. They only have to prove things by a preponderance of the evidence, not as a high a standard as criminal court. The hearing officer may ask questions, and you are allowed to cross examine school's witness, as well as present your own.




After this, if there is no manifestation hearing, there will be an adjournment so the hearing officer can make a decision. If the decision is guilty, the parent is allowed to present the evidence of mitigating factors, as discussed above. If the decision is not made at the time of the hearing, or shortly thereafter, it may be an appeal issue.


You should, in any case, receive a letter shortly thereafter with the superintendent's stamp of approval telling you how many days you have to appeal the long-term suspension to the board of education, which should be 30 calendar days. If it is not, ask for an extension.


A board appeal is usually done on paper and it helps if it organized like a legal brief. After the board decides, there is another level of appeal. From the date of decision by the board, you have 30 calendar days to appeal to the commissioner. The commissioner's decision may be appealed to the New York Supreme Court.




In general, it is best to consult with an attorney for more information about a child's rights before, during and after a suspension hearing than can reasonably be covered in this newsletter, and for specific information on your child's situation. Please note that students with a 504 plan have less protection during a suspension than a student with an IEP plan.




Manifestation hearings for students with an IEP may be appealed to an impartial due process hearing officer appointed by the state within 20 days, otherwise known as an "expedited due process hearing". A recent decision regarding manifestation hearings for special education students gives an opportunity for students with disabilities to be provided with an additional level of review on the suspension hearing facts as well.   Those students may appeal the portions of their suspension hearings involving the facts of the case in addition to appealing the manifestation itself.




It is important to note that manifestation rules apply to private schools who are recipients of federal funds, as well.




A final note: It is worth noting that schools are able to remove a child for a period of 45 days if the child's behavior was particularly violent or of concern. However, the rules are beyond the scope of this newsletter of this newsletter and should be reviewed with a special education attorney.







Please feel free to re-use and re-distribute provided proper attribution is given to our office.




This newsletter is copyrighted and generated by the Law Office of Suzanne Myron and is intended as general legal advice for New York residents only. For individual advice, please consult with an attorney of your choice.




The Law Office of Suzanne Myron is located at 6800 Jericho Turnpike, Syosset, NY by appointment only. For further information, or to make an appointment, please call 516-864-3876 or 516-393-5955 or email smyron@myronlaw.com.

 


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The federal, as well as New York law, ensures that all public school students are entitled to something called general due process if they are suspended. For me, this is the best and most interesting part of this post. Due process is very important, it is the legal requirement that the state must respect all legal rights that are owed to a person.Also, from Due Process of Law: A Brief History by John V. Orth, I have learned a lot here about due process. This describes how a commitment to fair procedures made way for an emphasis on the protection of rights, in general.

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In cases like this, an administrative due process must be rightfully exercised. Parents must be aware what their rights are in this process. Each parties have a right to enforce and observe. Any parent that finds the process unfairly carried out needs to be sure of what the infractions are. Thereafter, it can be elevated to the higher federal courts.

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