School Disciplinary Actions in Washington

By Jennifer Shaw

For most kids, September is a time of new notebooks, freshly sharpened pencils and the excitement of seeing old classmates after a long summer of separation. But for some public school students, especially those who like to challenge the rules, the return to school may be only temporary. Getting in a fight, cheating on a test, cursing a teacher, or breaking any number of other rules can get a student sent to the principal’s office or, worse yet, suspended or expelled from school.

The Lasting Effects of School Discipline

Disciplinary actions in Washington public schools are governed by statute and administrative code. Students and parents have important due process rights including the right to be represented by counsel. Although “school discipline” may not seem like a matter warranting the cost of involving an attorney, some of these actions do have the potential for long-term consequences.

Students who are suspended or expelled are collecting disciplinary records that may affect the school they can attend throughout their public school careers and may even affect their admission to college. Disciplinary actions are progressive. Students with a history of discipline will face more serious consequences for new offenses than students with no prior disciplinary records. More importantly, students who miss significant amounts of class time fall behind their classmates academically and may not recover in time to graduate.

Overview of Disciplinary Actions

The following information is an overview of disciplinary actions for non-special education students only. Special education students are protected by separate federal and state laws with special procedural rights not addressed here.

Every person in the State of Washing-ton between the ages of five and twenty-one has the right to attend a public school for kindergarten through twelfth grade basic education. RCW 28A.150.220; WA Const. Art. 9 ¤1. See also Tunstall v. Ber-geson, 141 Wn. 2d 201 (2000). The State, the School District or the individual schools cannot take away a student’s right to an education without due pro-cess under RCW 28A.305.160 and RCW 28A.600.010. If the school makes the decision that punishment is necessary, the child (and his or her parents) must be provided with a means of contesting the decision and for seeking alternatives to suspension or expulsion. RCW 28A.600.410; RCW 28A.600.415.

Discipline, Suspension or ExpulsionÑWhat’s the Difference?

Like any system, school disciplinary actions involve particular terms of art. The most important terms to understand are “discipline,” “suspension” and “expulsion” as they are defined by the Washington Administrative Code. See WAC 180-40, et seq. for information regarding the definitions and procedures cited in this article for the different disciplinary actions discussed.

• “Discipline” means any form of corrective action or punishment other than excluding the student from school for more than the balance of a particular class period. Discipline includes being sent to the principal’s office, staying in for recess, not being allowed to go on a field trip and other minor actions.
• “Suspension” is the exclusion of the student from a particular class period or the entire school day for a stated period of time. “Short-term suspensions” cannot exceed ten consecutive school days, while “long-term suspensions” are suspensions that exceed ten consecutive school days, but have a definite end date.
• “Expulsion” is the most serious form of punishment. It excludes a student from attendance at his or her school or any school in the school district for an indefinite period of time.

Each form of punishment involves its own form of due process. The less serious the punishment, the less formal the due process. For instance, a student or parent may only challenge a “discipline” or “short-term suspension” through an informal conference with the principal. Any further appeals must be made directly to the school board. However, parents and students may appeal a long-term suspension or an expulsion in a formal hearing before the school superintendent or his or her designee. If the parents or student are not satisfied with the results of the hearing, they may appeal the matter further to the full school board and on to Superior Court.

Long-Term Suspension or Expulsion

Long-term suspensions and expulsions are extraordinary punishments which should only be imposed after other punishments or corrective actions have failed to stop the behavior or in “exceptional circumstances.” Each school board may determine the definition of “exceptional circumstances” for its jurisdiction. Usually these include any criminal activity plus a list of other serious rule violations (for example, fighting, smoking, or forging a parent’s signature).

Additionally, bringing a gun to school requires expulsion under state law, while either expulsion or suspension is permitted for possession of other weapons at school. Most districts treat weapons violations harshly as part of their “zero tolerance” for weapons policy. RCW 28A.600.420. When this statute was first enacted, schools responded by prohibiting students from bringing toy guns or things that looked like guns to school as well as real guns. These rules resulted in some ridiculous suspensions and expulsions including a boy in Seattle who was expelled for bringing a tiny GI Joe gun to school. The districts seem to have adjusted these rules and loosened that part of the “zero tolerance” policy to allow a logical analysis of whether the “gun” was actually a threat to any student or the educational process.

Significant Due Process Rights for Long-Term Suspension or Expulsion

Before a long-term suspension or expulsion is imposed, the school must notify the student and the student’s parents by certified mail of the misconduct and the right to contest the discipline. The parent or student must request a hearing within three days of receiving the notice. Students and parents have significant due process rights at these hearings. They have the right to inspect evidence in advance, be represented by legal counsel, question and confront witnesses, present an explanation of the incident and present witnesses. The case will be decided only on the evidence presented at the hearing and the hearing must be recorded. The hearing officer issues a written decision after the hearing.

If the student or the student’s parents are not satisfied with the results of the hearing, they may appeal the hearing officer’s decision to the school board. The appeal may be decided based only on the record from the hearing or it may be a hearing de novo, depending on the request of the parties. If the issue cannot be resolved through this administrative process, the student or the parents can appeal to the superior court of the county where he resides. Given the costs of litigation, very few of these actions ever make it to the superior court level. As a result, the case law on disciplinary actions is sparse.

Emergency Actions

Sometimes a school believes that a student’s misbehavior requires quick action. A student may be expelled or suspended on an emergency basis if the student’s presence poses an immediate and continuing danger to the student, other students, or school personnel or an immediate and continuing threat of substantial disruption of the class, subject, activity or educational process of the student’s school. The emergency action should only continue until the danger or threat ceases, but usually the emergency action is followed by a separate notice of suspension or expulsion.

The appeal process for an emergency action is the same as expulsion, except that the time for requesting a hearing is ten days rather than three days.

Alternatives to Suspension or Expulsion

The law encourages schools to find alternatives to suspensions or expulsions if possible. RCW 28A.600.410. Alter-natives might include community service, counseling, or substance abuse treatment. RCW 28A.600.415. The student might also transfer to a different school within the district or agree to a behavior contract when he returns to school.

Even if there are no acceptable alternatives to suspension or expulsion, the student still has a constitutional right to an education. The district must offer the student some means for continuing his education such as placement in an alternative school or home school program for the duration of the suspension or expulsion.

Discipline Records

Disciplinary proceedings and records are private. 20 U.S.C. ¤1232g. All hearings are closed and the school district is not permitted to discuss the outcome of the hearing or the appeal with anyone outside of the parties involved. Disciplinary records are supposed to be maintained separately from academic records. These records are not to be provided to employers or colleges inquiring about a student’s academic records.

The exception to this rule of privacy is when a student changes schools either within the district or outside of the district or if he applies to a private school. In that situation, the school will provide the new school with the disciplinary records as well as the academic records.

In recent years, some colleges have begun asking applicants to agree to release their disciplinary records, especially if the student changed schools frequently or if the academic records showed unexplained gaps in attendance. Refusal to release the records could affect admission.

Students and their parents have the right under federal law to access the disciplinary file. They may request a correction to the file or they may include an explanation if the district will not grant the correction. Id. I regularly encourage families to request to view the student’s disciplinary file for accuracy if the student has had problems over the years.

Getting A Lawyer Involved

School is a fact of life for all children in this state under the age of sixteen. Unfortunately for some children, that “fact” is a struggle and their school years can be anything but idyllic. These kids and their families need strong advocates to help them find a school that fits their educational needs and allows them to thrive instead of one that causes them to spend large chunks of their time out of class due to disciplinary problems. Sometimes having a lawyer involved can make the difference between a child giving up on school and graduating.