5144.2 - Suspension and Expulsion/Due Process (Individuals with Exceptional Needs)

Suspension

A student enrolled in a special education program is subject to the same grounds for suspension which apply to students without disabilities. All the procedural safeguards established by County Superintendent of Schools policies and law shall be observed in considering the suspension of special education students, including the requirement that, depending on the disruptiveness of the conduct, some form of in school intervention be used prior to suspension to show that suspension was imposed only when other means of correction failed to bring about proper conduct.

The County Superintendent of Schools or designee may suspend a special education student for up to, but not more than, ten consecutive school days if the student poses an immediate threat to the safety of others without the agreement of the parent/guardian or a court order. In the case of a truly dangerous student, a suspension may exceed ten days, or the student’s placement may be changed, or both, if the parent/guardian so agrees or if a court order so provides. The total number of days for which a student may be suspended can not exceed 20 school days per school year.

Expulsion

The County Superintendent of Schools may expel a special education student only if an individualized education program team has determined 1) if there is not a relationship between the student’s behavior and the student’s disability; and 2) the student was appropriately placed at the time the misconduct occurred.

Procedures and time lines governing the expulsion of special education students shall be the same as those for other students as specified in law, except that an individualized education program (IEP) team meeting shall be held under conditions and with possible consequences as follows:

1. The IEP meeting shall be held to determine if an expulsion hearing is appropriate. This meeting shall determine the manifestation and placement issues indicated above. The IEP meeting shall be held as soon as possible after a recommendation to expel.

2. The parent/guardian shall be notified of his/her right to participate in the meeting at least 48 hours before the meeting. His/her request that the meeting be postponed shall be granted for up to three additional school days. The County Superintendent of Schools Office may extend any suspension of the student for the period of postponement. However, the suspension shall not be extended beyond the ten days unless agreed to by the parent/guardian.

3. Unless a parent/guardian has requested a postponement, the meeting may be conducted without the parent/guardian’s participation.

4. The IEP team shall conduct a preexpulsion educational assessment in accordance with the guidelines of the Code of Federal Regulations, Title 34, 104.35, which shall include a review of the student’s placement at the time of the alleged misconduct and a determination of the relationship, if any, between the student’s behavior and his/her handicapping condition.

5. The IEP team shall also review and consider the student’s health records and school discipline records.

6. If the IEP team determines that the alleged misconduct was not caused by, or a direct manifestation of, the student’s handicapping condition, and if it is determined that the student was appropriately placed, the student shall be subject to the applicable disciplinary actions and procedures prescribed for suspension and expulsions of all students.

7. The parent of each student with previously identified exceptional needs has a right to a due process hearing conducted pursuant to Section 1415 of Title 20 of the United States Code if the parent disagrees with the decision of the IEP team.

8. If the state’s special education due process hearing is initiated by the parent/guardian due to a disagreement with the IEP team recommendations, the County Superintendent of Schools Office shall cooperate with the State Department of Education towards achieving an expeditious resolution to the disagreement.

9. If a parent requests a due process hearing concerning the IEP determination, the student shall remain in his current placement pending resolution of the due process proceedings unless:

A. He/She has been suspended for up to, but not more than, ten days because he/she poses an immediate threat to the safety of others. In the case of a truly dangerous student, a suspension may exceed 10 consecutive school days, or the pupil’s placement may be changed, or both if either of the following occurs:

1. The pupil’s parent/guardian agrees.

2. A court order so provides.

B. The student and his/her parents agree to a change in placement.

C. A court order has been obtained permitting such a change in placement.

D. The change is a “minor” change in program or services rather than a “significant” change in placement.

10. Parental consent is not required prior to conducting a preexpulsion educational assessment or as a condition of the final decision to expel. The parent, pursuant to Section 300.504 of Title 34 of the Code of Federal Regulations, is entitled to written notice of the local educational agency’s intent to conduct a preexpulsion assessment. The parent shall make the pupil available for the assessment at a site designated by the local educational agency without delay. The parent’s right to an independent assessment under Education Code Section 56329 applies despite the fact that the pupil has been referred for expulsion.

Expulsion Procedures

1. Student’s Right to Hearing

The student is entitled to a hearing to determine whether the student should be expelled. The hearing shall be held within 30 school days after the principal or County Superintendent of Schools designee determines that one of the acts which are cause for expulsion has occurred.

The student is entitled to one postponement of an expulsion hearing for a period of not more than 30 calendar days. The request for postponement shall be in writing. Any subsequent postponement may be granted at the County Superintendent of Schools discretion.

If the County Superintendent finds it impracticable to comply with these time requirements for conducting an expulsion hearing the County Superintendent of Schools designee may, for good cause, extend the time period by an additional five school days. Reasons for the extension shall be included as a part of the record when the expulsion hearing is held.

Once the hearing starts, all matters shall be pursued with reasonable diligence and concluded without unnecessary delay.

2. Written Notice of the Hearing

Written notice of the hearing shall be forwarded to the student and the student’s parent/guardian at least ten calendar days before the date of the hearing. The notice shall include:

1. The date and place of the hearing.
2. A statement of the specific facts and charges upon which the proposed expulsion is based.
3. A copy of the disciplinary rules which relate to the alleged violation.
4. Notification that when seeking enrollment in another district, a student expelled for acts described in paragraphs # 1 through #4 of Education Code 48915(a) or the student’s parent/guardian must inform the new district of his/her status with the expelling district, pursuant to Education Code 48915.1
5. The opportunity for the student of the student’s parent/guardian to appear in person or to employ and be represented by counsel.
6. The right to inspect and obtain copies of all documents to be used at the hearing.
7. The opportunity to confront and question all witnesses who testify at the hearing.
8. The opportunity to question all evidence presented and to present oral and documentary evidence on the student’s behalf, including witnesses.

3. Conduct of Hearing

Closed Session: Notwithstanding the provisions of Government Code 54953 and Education Code 35145, the County Superintendent of Schools shall conduct a hearing to consider the expulsion of the student in a session closed to the public unless the student requests in writing at least five days prior to the hearing that the hearing be a public meeting. If such request is made, the meeting shall be public. Whether the expulsion hearing is held in closed or public session, the County Superintendent of Schools may meet in closed session to determine if the student should be expelled. If the County Superintendent of Schools admits any other person to the closed session, the parent/guardian, the student, and the counsel of the student shall also be allowed to attend the closed session.

Recording of Hearing: A record of the hearing shall be made and may be maintained by any means, including electronic recording, so long as a reasonably accurate written and complete transcription of the proceedings can be made.

Presentation of Evidence: While technical rules of evidence do not apply to such hearings, evidence may be admitted and used as proof only if it is the kind of evidence on which reasonable persons can rely in the conduct of serious affairs. The decision of the County Superintendent of Schools to expel must be supported by substantial evidence that the student committed any of the acts which are cause for expulsion. Findings of fact shall be based solely on the evidence at the hearing. While no evidence shall be based solely on hearsay, sworn declarations may be admitted as testimony from witnesses whose disclosure may subject them to an unreasonable risk of harm.
In cases where a search of a student’s person or property has occurred, evidence describing the reasonableness of the search shall be included in the hearing record.

Decision Within Ten Days: The County Superintendent of Schools decision on whether to expel a student shall be made within ten school days after the conclusion of the hearing, unless the student requests in writing that the decision be postponed.

4. Alternative Hearing: Hearing Officer or Administrative Panel

Instead of conducting an expulsion hearing itself, the County Superintendent of Schools may contract with the Office of Administrative Hearings of the State of California for a hearing officer. Alternatively, the County Superintendent of Schools may appoint an impartial administrative panel composed of three or more certificated personnel, none of whom shall be on the staff of the school in which the student is enrolled.

A hearing conducted by the hearing officer or administrative panel shall conform to the same procedures as apply to a hearing conducted by the County Superintendent of Schools as specified in “Conduct of Hearing” above.

The hearing officer or administrative panel shall, within three school days after the hearing, determine whether to recommend expulsion of the student to the County Superintendent of Schools. If the expulsion is not recommended, the student shall be immediately reinstated. (See “reinstatement” below.)

If expulsion is recommended, finding of fact in support of the recommendation shall be prepared and submitted to the County Superintendent of Schools. All findings of fact and recommendations shall be based solely on the evidence presented at the hearing. The County Superintendent of Schools may accept the recommendation based either upon a review of the findings of fact and recommendations submitted or upon the results of any supplementary hearing the County Superintendent of Schools may order.

The hearing officer or administrative panel may recommend that the County Superintendent of Schools suspend the Expulsion for a period of one year. (See “Suspension of Expulsion” below.)

The County Superintendent of Schools shall make a decision about the student’s expulsion within 40 school days after the date of the student’s removal from school unless the student requests in writing that the decision be postponed.

5. Final Action by the County Superintendent of Schools

Whether the expulsion hearing is conducted in closed or public session by the County Superintendent of Schools, a hearing officer, or an administrative panel, the final action to expel must be taken by the County Superintendent of Schools at a public meeting. The County Superintendent of Schools shall maintain a record of each expulsion, including its cause. Expulsion records shall be non privileged, disclosable public records.

Upon ordering the expulsion, the County Superintendent of Schools shall set a date, no later than the last day of the semester following the semester in which the expulsion occurred, when the student may apply for readmission to the expelled program. The County Superintendent of Schools may recommend a plan for the Student’s rehabilitation, which may include:

1. Periodic review and assessment at the time of application for readmission.
2. Recommendations for counseling, employment, community service and other rehabilitation programs.
3. Such other recommendations as the County Superintendent of Schools approves.

Upon expulsion, a copy of readmission procedures will be made available to the student and his/her parent/guardian.

6. Reinstatement

When the County Superintendent of Schools accepts a recommendation against expulsion or makes its own decision after the hearing not to expel, the decision is final and the student shall be reinstated immediately. The County Superintendent of Schools designee shall place the student in any classroom program, other instructional program, rehabilitation program, or any combination of such programs following consultation with County Superintendent of Schools personnel, including the teacher involved, and the student’s parent/guardian.

7. The County Superintendent of Schools designee shall send written notice of the decision to expel to the student or parent/guardian. The notice shall inform the parent/guardian of the right to appeal such expulsion to the County Board of Education.

The notice also shall inform the student or parent/guardian of his/her obligation to inform any new district in which the student seeks to enroll of the student’s status with the expelling County Superintendent of Schools, pursuant to Education Code 48915.1.

Readmission

Readmission procedures shall be as follows:

1. A written request for review of expulsion action and request for readmission shall be submitted by the parent/guardian to the County Superintendent of Schools designee.
2. The County Superintendent of Schools designee will hold a conference with the parent/guardian and the student.
   At the conference the conditions for readmission will be reviewed. The County Superintendent of Schools designee shall verify that the conditions have been met. School regulations will be reviewed and the student and parent/guardian will be asked to indicate in writing their willingness to comply with these regulations.
3. The County Superintendent of Schools designee will transmit the request for readmission to the County Superintendent of Schools, along with his/her recommendation. The County Superintendent of Schools may consider the request in closed session or in open session. If a written request for open session is received from the student or parent/guardian, it will be honored.
4. The County Superintendent of Schools designee will notify the student or parent/guardian, by registered mail, of the County Superintendent of Schools decision regarding readmission. The County Superintendent of Schools is in no way required to readmit a student upon completion of the readmission process.

Readmission procedures for special education students shall parallel those used for non disabled students and also shall include the following provisions:

1. The County Superintendent of Schools shall include input from the IEP team when developing a recommended rehabilitation plan for an expelled special education student.
2. The County Superintendent of Schools designee who confers with the parent/guardian and the expelled student regarding readmission may also consider the comments of the student’s IEP team when developing recommendations to the County Superintendent of Schools regarding a request for readmission.

Suspension of Expulsion

1. The County Superintendent of Schools, upon voting to expel a student, may suspend the enforcement of the expulsion order for not more than one calendar year and may, as a condition of the suspension of enforcement, assign the student to a school, class or program appropriate for the student’s rehabilitation. When deciding whether to suspend an expulsion, the County Superintendent of Schools shall take into account the following criteria:
   1. The student’s previous behavior.
   2. The seriousness of the misconduct.
   3. The student’s attitude toward the misconduct and his/her willingness to follow a rehabilitation program.
2. During this period the student shall be on probationary status.
3. The suspension of expulsion order may be revoked by the County Superintendent of Schools if the student commits any of the expellable acts or violates any of the rules and regulations governing student conduct.
4. When the suspension of expulsion order is revoked, a student may be expelled under the terms of the original expulsion order.
5. Upon satisfactory completion of the rehabilitation assignment, the County Superintendent of Schools shall reinstate the student in the appropriate program. Upon reinstatement, the County Superintendent of Schools may order the removal of any or all records of the expulsion proceedings.
6. Suspension of an expulsion order shall not affect the time period and requirements for the filing of an appeal of the expulsion order with the County Board of Education. The appeal must be filed within 30 days of the County Superintendent of Schools decision to expel.
7. The County Superintendent of Schools designee shall send written notice of any decision to suspend the enforcement of an expulsion order during a period of probation to the student or parent/guardian. The notice shall also inform the parent/guardian of the right to appeal the expulsion to the County Board of Education.

Right to Appeal

The student or parent/guardian is entitled to file an appeal of the County Superintendent of Schools decision to the County Board of Education.

The appeal must be filed within 30 days of the County Superintendent of School’s decision to expel, even if the expulsion action is suspended and the student is placed on probation.

Maintenance of Records

The County Superintendent of Schools will maintain a record of each expulsion, including the cause therefore. The expulsion record shall be maintained in the student’s mandatory interim record and sent to any school in which the student subsequently enrolls, within five days of a written request by the admitting school.

The County Superintendent of Schools shall, within five working days, honor any other district’s request for information about an expulsion executed by the County Superintendent of Schools.

Notifications and Reports

1. Notice to Law Enforcement Authorities
   
   Within one school day after a student’s suspension or expulsion, the principal or designee shall notify appropriate city or county law enforcement authorities, by telephone or other appropriate means, of any student acts which violate Education Code 48900 (c) or (d), relating to the possession, use offering or sale of controlled substances, alcohol, or intoxicants of any kind.
   
   Prior to the suspension or expulsion of any student, the principal or designee shall notify appropriate city or county law enforcement authorities of any student acts of assault which may have violated Penal Code 245.
   
   The principal or designee also shall notify appropriate city or county law enforcement authorities of any student possession of weapons or firearms in violation of Penal Code 626.9 and 626.10.
2. Reports to California Department of Education
   
   On forms supplied by the California Department of Education, principals or their designee shall regularly submit to the County Superintendent of Schools designee a completed report of student suspensions and expulsions. The County Superintendent of Schools designee shall compile this information and submit the aggregated data to the California Department of Education in accordance with time lines established in law.

  

Approved May 24, 1994