Basic Procedures

By David A. Kane, J.D.

The Rules of the Process

Removals For Less Than 10 School Days

The following minimum standards of due process must be applied in all educational discipline matters:

1. School removals for disciplinary infractions of ten (10) school days or less, the student must be afforded verbal or written notice of the charges against him/her;
2. If the charges are denied, an explanation of the evidence the authorities have;
3. An opportunity to present their side of the story.

NOTE: (R.I. RULE) R.I. adds to the above standards that if the student has not attained the age of majority (18), the notice and reason for the discipline suspension must be afforded to the student’s parents in their spoken language.

Generally, notice and the hearing should precede the student’s removal from school, since the hearing can almost immediately follow the misconduct, but if prior notice and hearing are not feasible, they should occur as soon as practicable.

Removals For More Than 10 School Days

The amount of due process afforded increases for removals exceeding 10 school days. In Rhode Island, under those circumstances, the student must be provided:

1. A clear written statement of the reason for suspension or long term removal;
2. An opportunity to a more formal public or private hearing;
3. If a hearing requested, the student is afforded prompt notice of the time and place of the hearing, with a reasonable time to allow for preparation;
4. Opportunity to be represented by legal counsel;
5. If the student is not 18 years old, the parent(s) or guardian is afforded the procedures 1,2,3,4 above;
6. At hearing, the right to cross examine witnesses and to present witnesses on their behalf;
7. A complete and accurate stenographic or electronic record of the hearing including all exhibits;
8. A written decision rendered within a reasonable time, based exclusively on the record detailing the reasons and factual basis therefore;
9. A copy of the decision;
10. A copy of the decision, together with the record must be forwarded to the Commissioner of Education, if there is an appeal of the decision.

NOTE: Students with disabilities receiving special education instruction must be afforded additional rights (see section disciplining students with disabilities and below.)

For students with disabilities:
Students with disabilities require additional considerations:

1. Same as 1-3 as stated above.
2. For suspensions exceeding 10 days cumulative conduct a manifestation determination for students IDEA eligible prior to suspension, and;
3. Conduct a functional behavioral assessment (within 10 business days)
4. If suspension is warranted because there is no relationship to the student’s disability and the disciplinary infraction, provide all IEP services and access to the general education curriculum.
5. Repeat the above each time the student faces disciplinary removal from school.

For students protected by Section 504 of the Rehabilitation Act:
For students protected by Section 504 of the Rehabilitation Act of 1973, a suspension exceeding 10 school days requires a re-evaluation and manifestation determination.

NOTE: No education services are necessary for general education students suspended from an educational environment, although it is advised to provide such services.