ZERO TOLERANCE AND THE DISCIPLINE OF SPECIAL EDUCATION STUDENTS
Ilene Young, Esquire
Young Law Office
50 East Court Street
Doylestown, PA18901
ZERO TOLERANCE AND THE DISCIPLINE OF SPECIAL EDUCATION STUDENTS
1) “Zero tolerance” as a catch phrase and a form of policy is believed to have originated with federal drug policy. It quickly caught on and is now applied to the policy which describes America’s current favored response to student misbehavior. It means that a school will immediately and severely punish a student who violates one of a list of prohibited infractions.
FEDERAL LAW
a)GFSA: The genesis of zero tolerance as applied to schools was a Congressional response to the real and perceived proliferation of guns in schools. The Gun Free Schools Act[1], as originally enacted in 1994, required each state receiving ESEA funds to have a law which required schools to expel for a period of not less than one year, a student who was found to have brought a weapon to school. It also required, in response to previous case law on the subject, that the chief administering officer of the LEA have the authority to modify the expulsions on a case by case basis.
i)State and local responsibilities under the Gun Free Schools Act
(1)State (SEA) responsibilities
(a)Law requiring one year expulsion for weapons infraction
(b)Case by Case modification available to CAO of the LEA
(c)Annual reporting to DOE concerning compliance data and expulsion data.
(2)LEA responsibilities
(a)LEAS must have a policy requiring the referral to the criminal justice or juvenile delinquency system of any student who brings a firearm to a school under the control and supervision of the LEA.
(b)THE GFSA must be construed in a manner consistent with the Individuals with Disabilities EDUCATION ACT. By using the case by case exception, the LEA’s will be able to discipline students with disabilities in accordance with the requirements of Part B of the IDEA and Section 504 of the Rehabilitation Act ( Section 504) and maintain eligibility.
(i) The Guidance issued by the DOE states that the LEA’s policy must specifically state that the case by case exception must be in writing and may include children with disabilities in order to meet the requirements of Idea
2)NCLB and the GFSA: Under NCLB, certain provisions were clarified to ensure that States and LEAs comply fully with the intent of the GFSA. Clarifications include:
a)That the existing one-year expulsion requirement in each State’s law include students who are determined to have possessed a firearm at school;
b)The requirement that the chief administering officer of the LEA develop a written record of any case-by case modifications on the one-year expulsion requirement;
c)That the GFSA does not apply to a firearm that is lawfully stored inside a locked vehicle on school property, or if it is for activities approved and authorized by the LEA so long as the LEA adopts appropriate safeguards to ensure student safety.
3)GFSA and Private Schools: Private schools are not subject to the provisions of the GFSA, but private school students who participate in LEA programs are, to the extent that such students are under the supervision and control of the LEA. Thus, a student who participates in at Title One program at an LEA would be subject to a one year expulsion from said participation, not from the private school.
4)Due Process : Students facing expulsion from school are entitled under the constitution to the due process protection of notice and opportunity to be hard.
a)Due process further has been found to require rationality in the implementation of zero tolerance policies enacted in response to GFSA.
Requirements for States
- Law requiring expulsion
- Statelaw allowing case by case modification, in writing
- Report to Secretary of DOE annually concerning information submitted by LEAs to SEA. Information to be reported
- Compliance
- Circumstances surrounding any expulsions imposed
- Number of students
- Types of firearms
Requirements for LEAs
- Comply with the state law
- Provide an assurance of compliance to the SEA
- Provide descriptive information to the SEA
- Adopt a referral policy for students who bring a firearm to school
- LEAs must implement a policy requiring referral to the criminal justice or juvenile delinquency system.
5)FIREARM DEFINITION: at 18 U.S.C. 921
a) the following are included within the definition:
i)Any weapon (including a starter gun) that will be, or is designed to or may readily be, converted toexpel a projectile by the action of an explosive
ii)The frame or receiver of any weapon described above
iii)Any firearm muffler or firearm silencer
iv)Any destructive device, which includes:
(1)Any explosive, incendiary, or poison gas, including a
(a)Bomb,
(b)Grenade
(c)Rocket having a propellant charge of more than four ounces
(d)Missile having an explosive or incendiary charge of more than one quarter ounce,
(e)Mine, or
(f)Similar device
v)Any weapon that will or that may be readily converted to, expel a projectile by the action of an explosive or other propellant, and that has any barrel with a bore of more than one-half inch in diameter
vi)Any combination or parts either designed or intended for use in converting any device into a destructive device described in the two immediately preceding examples, and from which a destructive device may readily be assembled
b)Antique firearms are not included
i)This is stark contrast with most local school policies which specifically include any look alikes, including toys and miniatures, in their definitions of “weapons”.
c)Fireworks are not included in this definition.
d)Knives are specifically not included.
6)Chief Administering Officer
Definition: NO one else may modify the requirement. RThe CAO may allow another entity or individual to carry out preliminary inforjation gathering functions and prepare a recommendation for chief administering officer, the cao retains the responsibility for the final decision.
PROCEDURES FOR MODIFICATON;
In writing.
FIREARM:
---any weapon (including a starter gun) that will be, or is designed to or may readily be, converted toe xpel a projectile by the action of an explosive
The frame or receiver of any weapon described above
Any firearm muffler or firearm silencer
Any destructive device, which includes:
- Any explosive, incendiary or poison as, including a
Bomb
Grenade
Rocket having a prooellant charge of more than four ounces
Missile having an explosive or incendiary charge of more tha none quarter ounce
Mine or
Similar device
Any weapon…
While this is the only entity with the power to modify the expulsion requirement on a case by case basis, it is not defined. It is left to the state to define who will be designated the Chief Administering Officer for this purpose.
7)Expulsion Definition:
a)Expulsion, at a minimum, is defined as removal from the student’s regular education program.
i)Placement in another regular program is not permitted.
ii)Placement in an “alternative setting” is permitted
iii)In states with mandatory attendance laws, like Pennsylvania, an alternative placement is mandated in some instances.
STATE LAW
8)State Statutory Schemes: In response to the GFSA the states enacted a variety of statutory schemes, many of which greatly broadened the scope of offenses subject to disciplinary removal and expulsion.
a)SAFE SCHOOLS ACT: ACT 26
In Pennsylvania, the “zero tolerance” statute is known as Act 26, the Safe Schools Act. The provisions of the Safe Schools Act:
i)Student Expulsions
(1)Mandatory Expulsion: “All public school entities must expel for a period of not less than one year, a student who brought onto or is in possession of any weapon on school property, at a school, or a school sponsored activity, or onto any public conveyance providing transportation to a school or school sponsored activity.”
(a)It has been held that a zero tolerance policy, when applied to expel a student for weapons possession where it is not proven that the student was aware that the weapon was in his vehicle, is not rationally related to a legitimate interest of the LEA and, therefore, a violation of due process. Seal v Morgan, 229 F.3d 567 (6th Cir. 2000)
(2)Other statutes applicable to expulsion under Act 26: 24 P.S.1901(C), concerning Disruptive Student Programs, provides for the establishment of Alternative Education Programs to deliver the mandatory education to “disruptive students” 1901 (C)(5)(iv) defines a student found in possession of a weapon on school property as a “disruptive student.”
ii)Reporting: Act 26 mandates reporting of weapons incidents to the following entities:
(1)Local Law Enforcement: Section 1317.2(f)(1)requires that the superintendent or chief administrator report any weapon discovery to local law enforcement.
(2)Department of Education: Section 1303 (A) and 1317.2(f)(2) mandate reporting all incidents of violence, weapons possession or drug (controlled substance) use or sale to the DOE once a year.
(a)The GFSA requires data collection and reporting once a year.
(3)In addition, the DOE is required to compile statewide data.
iii)Cooperation with Local Law Enforcement Entities
(1)Memorandum of Understanding: Each local educational authoritymust develop a Memorandum of Understanding with the local law enforcement entity, which provides an outline of the process to be followed in the event an incident of violence or weapons possession occurs on school property.
(a)The decision of referral to law enforcement in instances not specifically covered by the GFSA or Act 26 leads to the most conflict and risk in zero tolerance situations.
iv)Maintenance of Records: All LEA’s and other entities covered by Act 26 must maintain records of all acts of violence and weapons incidents, as well as all adjudications of delinquency for acts committed on school property on a district wide and school by school basis, in a manner prescribed by the State Police and Office of Safe Schools.
v)Parental Registration and Rights Concerning Records
(1)A Sworn Statement: prior to admission to school, a parent must sign a statement stating whether the student was previously or is presently suspended or expelled from any school in any state for an act or offense involving weapons, alcohol or drugs, or for the willful infliction of injury to another person or for any act of violence committed on school property.
(2)A certified copy of the student’s disciplinary record shall be transmitted to any school to which a student may transfer.
(3)A students disciplinary record shall be available for inspection to the student, to school officials and to law enforcement. Parental permission is not required for the transfer of records.
vi)The establishment of the Office for Safe Schools. Powers and duties include program development, training, assistance, and granting authority.
vii) Definition of “Weapon”: “shall include, but not be limited to, any knife, cutting instrument, cutting tool, nunchak, firearm, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.”
(1) Knives and cutting instruments are specifically excluded from the GFSA. This is an expansion upon the GFSA.
LOCAL LEA
9)LEA POLICIES: Each school district and local law enforcement authority will have its own policies and rules which will apply in zero tolerance discipline situations.
a)Typical policies and codes of student conduct vary widely. Many go far beyond the Gun-Free Schools Act by enacting policies that suspend or expel students for carrying virtually any object that could be considered a weapon, in addition to illegal drugs, prescription drugs, and even some drugs available over-the-counter.
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ZERO TOLERANCE AND THE DISCIPLINE OF SPECIAL EDUCATION STUDENTS
b)In areas with more “true” criminal behavior, the definitions, tone, and specificity of the designation of offenses and responses closely mirrors legal writing. The definition of what is considered a “weapon”, for example, becomes much broader in areas where weapons offenses, as defined by GFSA whose definitions of offenses also mirror criminal law, do not occur with any frequency. The definition of weapons in Philadelphia, for example, would not include nonfunctional miniature toys, while many suburban definitions do.
c)Some typical policies may contain a list of infractions escalating with severity and paralleling an escalating list of disciplinary actions. The PhiladelphiaPublic School’s Student Code of Conduct, consisting of 26 densely textural pages, of which an excerpt is attached.
d)Others contain a brief explanation of the school policy in compliance with Act 26 and the GFSA, and a weapons definition provided by the School Boards Association.
Excerpt from the McKee Elementary Student Handbook, WestAlleghenySchool District, which, other than title, calendar, and staff listings, contains four pages of text.
“WEAPONS POLICY
Possession of a weapon by any person is prohibited in any WestAlleghenySchool district building, or any grounds of the WestAlleghenySchool District, by a student on his/her way to or from school, in any vehicle
providing authorized transportation of students
or from any WestAlleghenySchool district building or any district sponsored function, activity or event and at any school function,
activity or event whether or not held on WestAlleghenySchool district property. “Weapon” shall mean any instrument or implement for the
infliction of or capability of inflicting bodily injury which serves no common lawful purpose including but not limited to, any knife, razor blade, or other cutting instrument or cutting tool, sharpened wood, sharpened metal, nun chuck stick or other martial arts device, brass or metal knuckles, club metal pipe, blackjack, chemical agent such as acid, mace, tazer,
shocker or stun gun, any explosive device, firearm (including pellet guns and B.B. guns), gun, bullet, slingshot, bow, arrow or any other
similar device from which a projectile may be discharged, including a firearm or other weapon which is not loaded or which lacks a
component or device necessary to render it immediately operable. The term “weapon” shall include “weapon look alike,” including
any instrument or implement designed to look like a weapon or facsimile of a weapon such as a toy gun or water pistol. “Possess” and
“possession” shall mean being on the person or in a person’s car, locker or otherwise under his or her control.
”
e. 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.
10) Local Law Enforcement Policies:
a)Local law enforcement will frequently have their own codes and policies concerning actions to be taken in criminal situations. For example, the recent public relations disaster of the cuffing of elementary school students in response to a disciplinary alert called in from the school was largely a result of the uniform application of the police policy of cuffing all suspected perpetrators when in transit to the local station. 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.
11) Bullying: Many states have recently included student on student harassment, violence, and intimidation in the form of “bullying” under the zero tolerance umbrella. New Jersey recently passes bullying legislation which, like that of the other states which have enacted a statutory policy concerning “bullying”, “student on student harassment”, and other forms of in- school violence and intimidation, defines which behaviors will not be tolerated in the school environment.
a)Pennsylvania does not have such a statewide policy.
i)Through case law, an action against LEA’s under 1983, deprivation of the constitutional liberty interest in personal bodily integrity under the Fourteenth Amendment, is a developing cause of action.
ii)Disability and Sexual Harassment: Similarly, actions have successfully been maintained against LEA’s for failure to respond to instances of disability and sexual harassment against students.
12) School District’s 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.
a)Query as to the known psychological effects of harsh punishment on an emotionally disabled student. Consider Seal v Morgan, included in the attached materials.
13) Voluntary Withdrawal Agreements: Because of the severity and duration of the records trail which results from a schoolyard infraction being designated a “weapons” violation under Act 26, parents may wish to withdraw their child from the district voluntarily rather than fact expulsion proceedings and the concomitant reporting requirements. A sample Voluntary Withdrawal Agreement is attached.
14) Transferring School Discipline: Suspension and Expulsion policies of the LEA’s may deal with the issue of a student leaving behind suspension or expulsion proceedings in one school when enrolling in another. Section 1317.2(e.1) of the Public School Code provides that :
a)“A school district receiving a student who transfers from a public or private school during a period of expulsion for an act or offense involving a weapon…may assign that student to an alternative assignment…provided that the assignment may not exceed the period of expulsion.” In Hoke v ElizabethtownArea Sch. Dist., 833 A.2d 3004, 2003 Pa. Commw. LEXIS 699, the court addressed the question of “whether a student who withdraws from school to avoid an expulsion should be treated no differently than a transfer student who commits the same offense but is officially expelled.” Id @ 312. There, the court found that, as the first school had not pursued expulsion proceedings, there was nothing in the law to support the contention that the district could independently bring expulsion proceedings for an incident which occurred at the former school.
15) IDEA, IDEIA and Zero Tolerance
a)OSEPand DOE have repeatedly stressed that the provisions of the GFSA and NCLB are not intended to conflict with the disciplinary provisions of IDEA.
b)One of the primary goals of IDEA was the elimination of any exclusion of children with disabilities from education. The reauthorization of 1997 and IDEIA have the stated intention of provided increased flexibility for school districts to deal with safety issues while maintaining due process protections of IDEA.
c)Important: The provisions of IDEA concerning the amount of time a child with a disability can be removed from his or her regular placement for disciplinary reasons are only called into play if the removal constitutes a change of placement and the parent objects to proposed action by school officials and requests a due process hearing. The discipline rules are essentially exceptions to the generally applicable requirement that a child remain in her current placement pending due process and subsequent judicial proceedings.