Rights in Suspension and Expulsion

Under the current state of law, students who attend private schools have very little opportunity to contest their suspensions or expulsions. This article deals with the legal rights of students who attend public schools.

In the public schools, the school directors are obligated to define and publish the types of conduct that would lead to exclusion from school. An exclusion from school may take the form of either suspension or expulsion.

A suspension is exclusion from school for a period of from one to ten consecutive school days. Suspensions may not be made to run consecutively beyond ten school days. Suspensions may be given by the principal or the person in charge of the school building. The parents and the superintendent are required to be notified immediately when a student is suspended. In any event, no student shall be suspended until the student has been informed of the reasons for the suspension and given the opportunity to respond; however, the school may immediately suspend students who threaten the health or safety of others in the school.

When the suspension exceeds three school days, the student and parents are given the opportunity for an informal hearing with the building principal to discuss the grounds for the suspension. They may also contest the suspension at this informal hearing. Therefore, the parents/guardians, as well as the student, are entitled to advance notice of the time and place of the hearing and written notice of the reasons for the suspension; the student has the right to question witnesses, both for and against the suspension. While on suspension, students have the responsibility to make up exams and work missed and the students must be given this opportunity.

Expulsion is exclusion from school for a period exceeding ten days and expulsion may be for the duration of the entire school year or may be permanent. All expulsions require a formal due process hearing before the school board, a committee of the board, or a hearing officer appointed by the board, and may not begin until such hearing takes place. However, conduct warranting a formal expulsion hearing will generally suffice to also suspend the student for ten days, and the school may hold an informal hearing to demonstrate that the student represents a threat to school health or safety. If the student is such a threat, the suspension may be extended to a total of 15 days; any further extension requires that both parties agree.

There are special rules that apply to students who are receiving or being considered for special education services. In general, students receiving special education will be expected to comply with the same code of conduct applied to students generally; school staff are specifically permitted to use discretion and apply punishments on a case-by-case basis, rather than using blanket "zero-tolerance" polices, however. Any exclusion from school in excess of ten days consecutively1, or fifteen total days during the school year, is considered a "change of placement" for students receiving special education and triggers procedural protections. In that case, the school, parent, and any relevant members of the student's IEP team must meet to determine if the problem behavior was due to either the student's disability or the school's failure to implement the IEP. If the behavior was a disability manifestation, the IEP team must conduct a functional behavioral assessment and develop a plan to address the problem behavior, or review and revise the existing plan. It is illegal to punish a student for a manifestation of her/his disability. In the case of mentally retarded students, any exclusion from school is considered a change in placement invoking the procedural safeguards for students receiving special education, unless the exclusion was for conduct involving dangerous weapons, drugs, or seriously hurting someone else. In cases involving dangerous weapons, drugs, or serious bodily injury to another person, the district superintendent may order an immediate alternative placement for the student for no more than 45 school days.

The rights available for a formal due process hearing include a written notification of the charges, the names of the persons who will testify against the student, copies of any statements of those witnesses, the right to counsel, the right to cross- examine witnesses, and the right to present testimony and witnesses on the student's behalf. A record must be kept of the proceeding by either stenographer or tape recorder. The student is entitled to a copy of the transcript at the student's expense, unless the student is indigent (legally cannot afford one).

If a student is expelled and if the student is less than seventeen years of age, the student is still subject to the compulsory school attendance laws. The initial responsibility for providing the required education rests with an expelled student's parents or guardians. These caregivers must then notify the school district in writing, within 30 days, that either a) the required education is being provided, or b) that they are unable to provide such an education. If the parents or guardians notify the school district that they are unable to provide the required education, the school district must then make some provision for the student's education within ten days after receiving the notice. In such cases the education which is ordinarily offered is home tutoring.

This information is derived from Title 22 of the Pennsylvania Code, Chapters 12 & 14, and Title 34 of the Code of Federal Regulations, Parts 300.530, 300.534, and 300.536.  4/11

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1 Note that any pattern of exclusion for more than 10 days may be objectionable under 34 CFR 300.536.  PA regs automatically trigger the protections at 15 days.