16.5 STUDENT DISCIPLINE
16.501 Introduction. In the last two decades, school shootings and other traumatic but isolated episodes of school violence have led to harsher punishments and more time out of school. There is little or no evidence, however, that suspension improves student behavior in either the short or long term. Data suggest that, if anything, out-of-school suspension is predictive of higher rates of future disciplinary infraction. 104 Moreover, students who become disengaged from school and develop disciplinary problems are more likely to drop out of school altogether. 105 Finally, numerous studies have concluded that out-of-school suspension disproportionately affects minority, low-income, and disabled students. 106
In Virginia during the 2014-15 school-year:
| • | Public schools issued over 126,000 out-of-school suspensions to approximately 70,000 individual students. | ||
| • | After trending downward for at least four years, the suspension rate increased from the 2013-14 school year. | ||
| • | Over 20% of suspensions were issued to elementary school students, including 16,000 suspensions to students in pre-kindergarten through third grade. | ||
| • | Over 10% of ninth grade students were suspended at least once. 107 |
The vast majority of suspensions were issued for non-violent, relatively minor misbehavior. In fact, approximately half of suspensions were for
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cell phones, disruption, defiance, insubordination, and disrespect. Perhaps most nonsensically, 670 suspensions were issued for "attendance." In other words, students were sent home from school for skipping class or not coming to school. 108
The suspensions were disproportionately issued to male students, African-American students, and students with disabilities. African-American students were 23% of the student population but were subjected to 58% of short-term suspensions, 60% of long-term suspensions, and 55% of expulsions. They were 3.6 times more likely than white students to be suspended. Students with disabilities were 12.3% of the student population but were subjected to 27.6% of short-term suspensions, 22% of long-term suspensions, and 21% of expulsions. They were 2.4 times more likely than students without disabilities to be suspended. In some divisions, the disparities were even greater. 109
There are signs that the pendulum is swinging back from punitive exclusionary discipline measures. In 2009, 2012, 2013, and 2014, the General Assembly passed legislation rolling back zero tolerance policies and promoting data collection on punitive discipline. During the 2017 session, the General Assembly passed a bill requiring the Board of Education to establish guidelines for alternatives to suspension including options like positive behavior incentives, mediation, peer-to-peer counseling, and community service. 110
School board policies and practices regarding student discipline pose special problems for defense counsel who represent juveniles. With the increasing prevalence of school security and resource officers, a student who is accused of violating a student code of conduct also has to worry about delinquency charges arising out of the same conduct. Conversely, the mere filing of a delinquency petition for some offenses must be transmitted to schools and can result in a referral to the local alternative program. Schools can suspend or expel for convictions of more serious offenses. For students already in the system, lack of an educational placement can be devastating in the disposition phase when advocating for alternatives to detention or commitment.
Accordingly, it is important for defense counsel to understand the student discipline process and how it might affect the client's court case. The
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discussion below will address basic principles of discipline and due process. The primary source of state law is the section on "Discipline" in the Virginia Code beginning at section 22.1-276.01.
Important: It is critical to recognize that students with disabilities receiving special education services under the Individuals with Disabilities Education Act (IDEA) are treated differently when it comes to discipline. If your client has a disability, or you suspect your client may have a disability that has gone unrecognized, please read the provisions on special education later in this chapter.
16.502 Bullying. Bullying is defined in the Virginia Code to mean:
any aggressive and unwanted behavior that is intended to harm, intimidate, or humiliate the victim; involves a real or perceived power imbalance between the aggressor or aggressors and victim; and is repeated over time or causes severe emotional trauma. "Bullying" includes cyber bullying. "Bullying" does not include ordinary teasing, horseplay, argument, or peer conflict. 111
Sections 22.1-279.6(D) and 22.1-291.4 of the Virginia Code require local boards to adopt anti-bullying policies and procedures, including employee education about creating a bully-free environment. Parents must be notified within five school days if their child is involved in an alleged incident of bullying. 112 Section 8.01-220.1:2(B) grants civil immunity to school employees and school volunteers for the prompt, good faith reporting of alleged acts of bullying or crimes against others to the appropriate school official in compliance with Sections 22.1-279.6 and 22.1-291.4 and specified procedures.
16.503 Sufficient Cause. Schools have broad authority to discipline students. The Virginia Code authorizes schools to suspend or expel students from attendance at school for "sufficient cause." 113 "Sufficient cause" includes violations of school board policies, which may be written in fairly broad terms as long as they give "adequate warning" that certain conduct may subject a student to sanction. 114 Under no circumstances may sufficient cause include only instances of truancy. 115
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16.504 Short-Term Versus Long-Term Suspensions. A short-term suspension is defined by Sections 22.1-276.01 of the Virginia Code as "any disciplinary action whereby a student is not permitted to attend school for a period not to exceed 10 school days." Short-term suspensions may be ordered by a principal, assistant principal, or, in their absence, any teacher. In most cases, the student must be given written or oral notice of the charges against him or her, an explanation of the facts forming the basis of the charge, and an opportunity to present his or her version of them prior to being suspended. If, however, the student's presence "poses a continuing danger to persons or property" or "is an ongoing threat of disruption," the student may be removed from school immediately without the notice, explanation, or opportunity to present his or her side until "as soon as practicable thereafter." The staff member responsible for the suspension must report the facts of the case in writing to the superintendent's designee and the parent of the suspended student. 116 A short-term suspension is authorized pending a decision on whether to require the student to attend an alternative education program as a result of certain alleged intentional injuries inflicted on another student in the same school. 117
A long-term suspension is defined as "any disciplinary action whereby a student is not permitted to attend school for more than 10 school days but less than 365 calendar days." 118 The school must provide the student and parent with written notice of the proposed long-term suspension, the reasons for it, and the right to a hearing. This hearing will be conducted by either the superintendent (or designee) with the right to appeal to the full school board, or by a committee of the school board with the right to appeal to the full school board if the decision is not unanimous. 119
Typically, students charged with more serious misconduct will first be suspended for 10 days by a principal or assistant principal with a recommendation to the superintendent or designee for a longer suspension or expulsion. The superintendent's designee will then issue the long-term suspension or expulsion.
16.505 Expulsion. Expulsion has a very specific definition in the Virginia Code: "'Expulsion' means any disciplinary action . . . whereby a student is not permitted to attend school within the school division and is ineligible
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for readmission for 365 calendar days after the date of the expulsion." 120 Thus, a school may expel students for only 365 calendar days at a time.
The procedures for expelling students are similar to those for giving them long-term suspensions: Schools may expel students after written notice of the proposed expulsion, the reasons therefor, and the right to a hearing before the school board or a committee of the school board. If the committee's decision is not unanimous, the student or the student's parent has a right to appeal to the full school board. The appeal must be decided within 30 days. The school board or its disciplinary committee must confirm or disapprove the expulsion regardless of whether the right to a hearing is exercised. 121
16.506 Readmission After Expulsion. Once a student has been expelled, the notice to the parents must state whether the student is eligible to return to the school and if so, what the terms and conditions are for readmission. If the school concludes that the student is not eligible to return to school or to attend an alternative education program, the student may apply to be readmitted at any time during his or her expulsion in order to begin attending school one year after his or her expulsion date. The application for readmission must be reviewed by the superintendent, school board, or a school board committee. If the petition is denied by the superintendent or the committee, the student can appeal the decision to have it reviewed by the school board. 122
16.507 Exclusion (Students Expelled or Suspended from Outside the School District). Under section 22.1-277.2...
