ZERO TOLERANCE

1. ZERO TOLERANCE Safe Schools Issues in Discipline of Special Education and All Students Prepared and Presented by Ilene Young, Esquire Young Law Offices Doylestown, PA

2. Case study: John • 15 year old student in all mainstream classes • Dx ADHD and PDD • IEP from grade 2 • History of behavioral problems • Documented hatred of school • Current IEP with social and behavioral goals related to stress and conflict avoidance

3. Triggering Incident • April 23, 1999, three days after Columbine • A student reports that John asked him to join a club dedicated to hating another student • “Columbine was cool” “Where can I get get guns “on the black market””.

4. Case study: Issues • Reporting and punishment requirements under safe schools/zero tolerance laws • Discipline of special education students • Subjective determinations of violations • Appropriate behavioral interventions • Extreme consequences if you decide the wrong way

5. Case study result • John was placed on homebound instruction for the remaining 22 day balance of the school year • John’s parents were awarded compensatory education and reimbursement for counseling services they obtained for John because of his treatment by the district • Community Consolidated School District #93 v John F., No. 00 CV 1347 (7th Cir. 2000)

6. What is Zero Tolerance? • Originally a child of the Federal Drug Enforcement policies of the 1980s • Policies that punish all offenses, however minor

7. Zero tolerance in schools • Strictly enforced mandatory consequences for violations of school rules • Legally imposed obligations on school districts to adhere to a schedule of violations and consequences and report to a central information office • Mandatory involvement of law enforcement in certain school discipline matters

8. Three aspects of discipline addressed by courts • RULE • VIOLATION • RESPONSE

9. Rule • Legitimate purpose • Rational relationship to the achievement of that purpose • Sufficiently narrow and clear • Written and publicized to students • If infringes on a fundamental right, compelling state interest • ZT policies have repeatedly been found to serve the legitimate interest of safety.

10. Violation • May be clear cut and unequivocal • May be subjective • Timeframe for determination may be relevant • Zero tolerance creates a lack of flexibility

11. Response • In Zero Tolerance, once the determination of violation is made, zero flexibility may exist • Trigger for most lawsuits and appeals under zero tolerance • Trigger for most perception of injustice

12. IDEA and Zero Tolerance • Primary goal of IDEA: to eliminate exclusion of children with disabilities from education • “Prevention of speculative and subjective decision-making.” • Mills v Board of Ed of D.C., (1972) • Iissues arise over suspensions which constitute a change of placement • A district can remove a special education student from his current placement for up to 10 days • A district can remove a special education student from current placement for up to 45 school days if it has clear and convincing evidence that the student: possessed a weapon, as defined by law, at school; possessed illegal drugs at school; or inflicted serious bodily injury at school or at a school-related function.

13. IDEA Discipline Provisions • Discipline rules are exceptions to the general requirement that a child remain in her current placement pending due process and subsequent proceedings. • Working with the parent to reach agreement as to an appropriate placement is always the first option. • IDEA requires proactive approaches to behavior management.

14. 1997 Amendments and IDEIA • Have increased flexibility for districts to deal with discipline of children with special needs • Fundamental requirements of • proactive identification • behavior plans • appropriate staff development • safeguards to prevent exclusion based upon disability are still in place

15. Goals of discipline of special education students • Preserving school safety • Promoting appropriate behavioral interventions and responding appropriately to behaviors • Increasing the likelihood of success in school • Increasing school completion for at risk students • Avoiding exclusion for manifestations of disabilities • Protecting rights of students and staff.

16. Goals of zero tolerance laws • Maintenance of safe schools and the perception of safety in schools. • Codification of behavioral rules and responses • Expulsion and/or exclusion of students in violation of school rules • Referral to law enforcement and data collection

17. Hierarchy of zero tolerance • First level: Federal Law • THE GUN FREE SCHOOLS ACT • Second level: State Law (PA) • Safe Schools Act • ACT 26 (as amended) • Third level: LEA: • School policy/student handbook • Law Enforcement -memorandum of understanding

18. GFSA: Requirements for State DOE • A Law requiring one year expulsion for weapons infraction • Case by Case modification available to CAO (Chief Administrative Officer) of the LEA • Annual reporting to DOE (Department of Education) concerning compliance data and expulsion data.

19. GFSA: Requirements for LEA (District) • Policy requiring the referral to the criminal justice system of any student who brings a firearm to school • GFSA must be construed and administered in a manner consistent with the IDEA • Case by case exception must be written policy and specifically may include children with disabilities within case by case considerations.

20. NCLB and GFSA • Chief administrative officer of LEA must develop a written record of any case by case modifications of the one-year expulsion requirement • GFSA does not apply to a firearm lawfully stored in a locked vehicle on school property or for activities approved by the LEA. • Data is used for safe school status determinations

21. Private schools and GFSA • Private schools are not subject to the provisions of the GFSA • Private school students who participate in LEA programs are, to the extent that such students are under the supervision and control of the LEA.

22. Reporting Requirements: GFSA • Compliance • Circumstances surrounding any expulsions imposed • Number of students • Types of firearms • LEA’s are required to provide descriptive data to the SEA

23. Definitions under GFSA • FIREARM DEFINITION: at 18 U.S.C. 921 • Specifically excludes antiques and replicas • Excludes Fireworks and knives • CAO DEFINITION: undefined. To be determined by the SEA • Expulsion Definition: • Removal from the student’s regular education program. • Placement in another regular program is not permitted. • Placement in an alternative setting is permitted

24. SAFE SCHOOLS ACT: ACT 26 • Expulsion • Reporting • Cooperation with Law Enforcement

25. Provisions of the Safe Schools Act • Mandatory Expulsion • Reporting • By LEA: weapons offenses to law enforcement • weapons and acts of violence to state DOE • By parent: Sworn statement • Maintenance of Records • Cooperation with Local Law Enforcement Entities • Memorandum of Understanding

26. ACTS OF VIOLENCE • Violence and weapon possession incident collection form includes: • Harassment • Terroristic Threats • Recklessly endangering

27. DETERMINING “ACTS OF VIOLENCE” DOE Scenario 1. • During a shouting match between two 2nd grade students, Student A pushes Student B off of the top of a sliding board. Student B lands on her back and has a bruise on her hip the next morning. Is this assault? • What if they are 5th grade students? • What is the anticipated result of following the memorandum of understanding/zt policy?

28. Scenario 2: Harassment • Everyday, Student A shouts words to Student B referring to his disability so that everyone can hear. Student A also belittles anyone who dares to sit with Student B, so that he sits alone. Student A has been cautioned by the administration to stop this behavior but has not. Is this harassment?

29. Parental Registration and Rights Concerning Records • Prior to admission to school, a parent must sign a statement stating whether the student was or is suspended or expelled from any school in any state for z.t. offenses. • A certified copy of the student’s disciplinary record is transmitted to the school to which the student may transfers. • Parental permission is not required for transfer.

30. Cases on definitions:WEAPON : • Bodily Injury: In the Interest of M.H. M, a minor APPEAL of M.H.M., 2004 PA Super 485 (2004) Held: Despite having been designed specifically not to cause bodily injury, a paintball gun is a weapon.

31. Cases on Definitions: Possession “On School Grounds”: J.M. v Webster County Board of Education, ___ S.E.2d __ (W.V. 2000) HELD: Expulsion of student for possession of a weapon on school grounds upheld even though the court accepted as fact that the student had been transported onto school grounds forcibly by another and had neither intended to be nor taken any voluntary action toward being, on school grounds.

32. POSSESSION/ KNOWLEDGE • Seal v. Morgan, citation in materials. Expelled student was unaware that a weapon was in his vehicle. HELD: Student cannot be expelled for truly unknowing or unconscious possession of a forbidden object. • Followed by : Seal v Knox County Board of Education – wrongful death..

33. LEA Policies and Codes of Conduct • LEA Policies must be in writing. 1. To satisfy the requirements of Due Process 2. To satisfy the statutory requirements of Act 26 and the GFSA.

34. Local Law Enforcement Policies: • Local law enforcement will frequently have their own codes and policies concerning actions to be taken in criminal situations. • Example, the recent public relations disaster of the cuffing of elementary school students. • LEA’s should be aware of the repercussions of their actions at the time the initial determination to designate an action worthy of a criminal referral is made.

35. Bullying • New Jersey recently passes bullying legislation • Pennsylvania’s proposed bullying legislation stalled in the House • Student on student harassment is a reportable offense under the DOE’s Acts of Violence and Weapons Possession Reporting system • Possible 1983 actions.

36. Responsibilities to Student Safety • The imposition of punishment under zero tolerance policies does not relieve school officials of their duty of care and supervision toward students. • Accordingly, punishment, even consistent with the policy must be imposed reasonably and in a safe manner. • Query as to the known psychological effects of harsh punishment on an emotionally disabled student. Consider Seal v Morgan, included in the attached materials.

37. Transferring School Discipline: • Section 1317.2(e.1) of the Public School Code provides for alternative assignment by receiving school during continuing period of expulsion from sending school; • But see Hoke v Elizabethtown, in materials. • Agreements for Withdrawal in Lieu of Expulsion

38. Claims and remedies • 42 Pa.CSA §§933 Appeal from Decision of Administrative Agency (State Court) • IDEA claims: Failure to implement behavioral plan, compensatory education etc. • Wrongful death: Suicide as a result of wrongful expulsion & referral to criminal justice system.

39. Constitutional claims • Constitutional Claims • Equal Protection: rational basis • Due process _ student has a “legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause” • PA Constitution: Specific right to “reputation” • Right to bodily integrity • First Amendment – Freedom of Speech • Privacy – right to raise children as parents see fit

40. S.G. and Latour • S.G. – 3rd circuit, Judge Sloviter. Kindergartener playing cops and robbers says, “I’m going to shoot you.” Held: Suspension upheld against due process, first amendment, and equal protection challenges. • S.G. v Sayreville Board of Ed., 333 F.3d 417, 422 (3rd Cir. 2003) • Latour – High school rapper had violent threatening language in rap. ACLU case just filed in response to z.t. expulsion.