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
Case study: John
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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
Triggering Incident
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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””.
Case study: Issues
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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
Case study result
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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
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Community Consolidated School District #93 v John F.,
No. 00 CV 1347 (7th Cir. 2000)
What is Zero Tolerance?
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Originally a child of the Federal Drug
Enforcement policies of the 1980s
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Policies that punish all offenses, however
minor
Zero tolerance in schools
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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
Three aspects of discipline addressed by
courts
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RULE
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VIOLATION
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RESPONSE
Rule
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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.
Violation
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May be clear cut and
unequivocal
May be subjective
Timeframe for
determination may be
relevant
Zero tolerance creates
a lack of flexibility
Response
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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
IDEA and Zero Tolerance
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Primary goal of IDEA: to eliminate exclusion of children with
disabilities from education
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“Prevention of speculative and subjective decision-making.”
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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.
IDEA Discipline Provisions
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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.
1997 Amendments and IDEIA
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Have increased flexibility for districts to deal
with discipline of children with special needs
Fundamental requirements of
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proactive identification
behavior plans
appropriate staff development
safeguards to prevent exclusion based upon
disability are still in place
Goals of discipline of special
education students
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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.
Goals of zero tolerance laws
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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
Hierarchy of zero tolerance
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First level: Federal Law
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THE GUN FREE SCHOOLS ACT
Second level: State Law (PA)
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Safe Schools Act
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Third level: LEA:
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ACT 26 (as amended)
School policy/student
handbook
Law Enforcement -memorandum of understanding
GFSA: Requirements for State DOE
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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.
GFSA: Requirements for LEA (District)
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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.
NCLB and GFSA
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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
Private schools and GFSA
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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.
Reporting Requirements: GFSA
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Compliance
Circumstances surrounding any expulsions
imposed
Number of students
Types of firearms
LEA’s are required to provide descriptive
data to the SEA
Definitions under GFSA
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FIREARM DEFINITION: at 18 U.S.C. 921
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Specifically excludes antiques and replicas
Excludes Fireworks and knives
CAO DEFINITION: undefined. To be determined by
the SEA
Expulsion Definition:
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Removal from the student’s regular education program.
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Placement in another regular program is not permitted.
Placement in an alternative setting is permitted
SAFE SCHOOLS ACT: ACT 26
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Expulsion
Reporting
Cooperation with Law Enforcement
Provisions of the Safe Schools Act
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Mandatory Expulsion
Reporting
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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
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Memorandum of Understanding
ACTS OF VIOLENCE
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Violence and weapon possession incident
collection form includes:
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Harassment
Terroristic Threats
Recklessly endangering
DETERMINING “ACTS OF
VIOLENCE” DOE Scenario 1.
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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?
Scenario 2: Harassment
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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?
Parental Registration and Rights
Concerning Records
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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.
Cases on definitions:
WEAPON :
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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.
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.
POSSESSION/ KNOWLEDGE
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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.
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Followed by : Seal v Knox County Board of
Education – wrongful death..
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.
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Local Law Enforcement Policies:
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Local law enforcement will frequently have
their own codes and policies concerning
actions to be taken in criminal situations.
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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.
Bullying
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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.
Responsibilities to Student Safety
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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.
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Query as to the known psychological effects of harsh
punishment on an emotionally disabled student. Consider
Seal v Morgan, included in the attached materials.
Transferring School Discipline:
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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
Claims and remedies
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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.
Constitutional claims
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Constitutional Claims
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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”
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PA Constitution: Specific right to “reputation”
Right to bodily integrity
First Amendment – Freedom of Speech
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Privacy – right to raise children as parents see fit
S.G. and Latour
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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.
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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.
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ZERO TOLERANCE