Due Process Protections from Formal Discipline for Students with Disabilities

ACDL News, Education

By: Emma Freeburg, ACDL Legal Intern (Summer 2021)*

En Espanol

Our first blog post in this series explained that there are several types of formal discipline processes that students with disabilities may face. Today’s blog post provides more information on those types of formal discipline, explains the due process rights of all students facing school discipline, and introduces the additional safeguards that exist for students with disabilities.

Arizona law defines short-term suspension, long-term suspension, and expulsion as follows: [1]

Short-term Suspension Instances in which a child is temporarily removed from their regular school for disciplinary purposes for a period of 10 or fewer school days.
Long-term Suspension Instances in which a child is temporarily removed from their regular school for disciplinary purposes for a period of 11 or more school days.
Expulsion Instances in which a child is permanently removed from their regular school for disciplinary purposes (unless the school governing board chooses to readmit the student).

The U.S. Supreme Court has held that all students facing suspension or expulsion are entitled to due process of law. [2] In Goss v. Lopez, the court decided that a student’s right to a public education is a property interest protected by the Constitution in the 14th Amendment’s Due Process Clause. Under the Arizona constitution, all children between the ages of 6 and 21 have a right to a free public education. [3] IDEA expands this age range out to 3 and 21 for students with disabilities. [4] Thus, students are entitled to due process of law before being deprived of this property right to a public education.

Due process of law requires that the student-facing discipline (or their parent/guardian) be given:

  • (1) Oral or written notice of the charges against them,
  • (2) An explanation of the evidence the school has, and
  • (3) An opportunity to present their side of the story.

Here’s what due process under Goss might look like:

You receive a call from your child’s school stating that your child is facing a two-day out-of-school suspension for causing repeated disruptions during science class. When you pick your child up from school, your child tells you that they were not being disruptive in class. You inform the school that your child denies being disruptive in class. The school sets up an informal hearing for you, your child, and the science teacher before the school principal. At the hearing, the teacher describes the instances when your child caused a disruption, and your child is able to present their side of the story. Then, only after the hearing, is the decision made whether or not to proceed with the proposed suspension.

Here is an example of a violation of due process under Goss:

You try to drop your child off at school in the morning, but the front office tells you that your child cannot come to school because they were suspended for refusing to follow instructions the day before. The school had not alerted you of the suspension previously, does not provide you with an incident report now, and does not allow your child to explain the situation. This would be a clear violation because at the very minimum, due process requires a student facing suspension be “given some kind of notice and afforded some kind of hearing.” [5]

Under Arizona law, the governing board of a school district or charter must set the disciplinary rules that include a notice and hearing procedure for cases concerning the expulsion or suspension of a student for more than 10 days. [6] If your child is facing expulsion or suspension for more than 10 days, you should ask the school for a copy of the district or charter’s discipline policies. 

Students with disabilities have additional procedural protections from any disciplinary action that results in a “change in placement” under IDEA. A change in placement occurs when a student is removed from an educational environment for more than 10 consecutive days or when there is a pattern of removals totaling more than 10 days in a single school year. [7] A pattern of removal can be identified by analyzing factors such as the type of student behavior resulting in removals, the length of each removal, the total amount of time of removal, and the proximity of the instances of removal to one another. [8]

The protections for students with disabilities vary based on whether the student has been identified as an eligible student with a disability under IDEA, Section 504, or not identified as a student with a disability at the time of the conduct that leads to the discipline. Our next blog post covers the procedural safeguards for each of the above situations.

 

[1] A.R.S. § 15-840

[2] Goss v. Lopez, 419 U.S. 565 (U.S. 1975)

[3] Ariz. Const. art. 11, § 6.

[4] 34 C.F.R. § 300.101 (a)

[5] Goss, 419 U.S. at 579

[6] A.R.S. § 15-843 (A)(5)

[7] 34 C.F.R. § 300.536 (a)

[8] 34 C.F.R. § 300.536 (a)(2)

[9] 34 C.F.R. § 300.101 (a)

 

*Emma Freeburg is a law student at the Sandra Day O’Connor College of Law at Arizona State University. Emma completed a legal internship with ACDL during the summer of 2021. This blog post has been reviewed by ACDL Legal Director Rose Daly-Rooney and ACDL Education Team Managing Attorney Amanda Glass.

 

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