Trends in Student Discipline — A Reprise

A previous blog touched upon recent trends in student discipline and summarized certain legislation pending at that time, which signaled a policy move toward reducing the exclusion of students from school as a result of suspensions and expulsions and, instead, implementing alternative means of discipline.

Of the four main bills introduced last year – SB 1235, AB 1729, AB 2537, and AB 2242 – only two were signed into law by Governor Brown: AB 1729 and AB 2537.

ASSEMBLY BILL 2537

Consistent with the trend to utilize alternative means of correction in the student discipline context, AB 2537 expands the discretion of a district superintendent or school principal to determine such alternative means should be imposed under certain specified circumstances. Resulting amendments to Education Code section 48915 modify the circumstances that are subject to a mandatory recommendation for expulsion and give a superintendent or principal the authority to determine that expulsion would not be appropriate in a given situation or that alternative means of correction should be imposed.

ASSEMBLY BILL 1729

AB 1729 made some minor changes to Education Code section 48900 and, apropos of this discussion, amends Education Code section 48900.5 to provide a non-exhaustive list of alternative modes of correction a school “may” document when invoking disciplinary measures less than suspension. Incidentally, despite the permissive “may” used in the legislation we recommend routinely documenting all efforts to implement alternative discipline in the event more stringent measures are called for later or, in a worst-case scenario, the school is pulled into litigation.

Education Code section 48900.5, as amended, limits a student’s suspension on a first offense to the charges enumerated in Section 48900.5 or when the student’s conduct poses a risk of danger to other persons. The former law allowed a student’s suspension on a first offense where the student’s presence created a danger to persons, property, or threatened to disrupt the instructional process. Thus, the legislation has reduced the grounds on which a school may suspend a student for a first offense charge.

Paradoxically, however, AB 1729 also broadens the grounds for student discipline by expanding the definition of an “electronic act” in Education Code section 48900, subdivision (r)2.A. Thus, a school may pursue the discipline of a student based on:

(i) a message, text, sound, or image.

(ii) A post on a social network Internet Web site including, but not limited to:

(I) Posting to or creating a burn page. “Burn page” means an Internet Web site created for the purpose of having one or more of the effects listed in paragraph (1).

(II) Creating a credible impersonation of another actual pupil for the purpose of having one or more of the effects listed in paragraph (1).

(1). “Credible impersonation” means to knowingly and without consent impersonate a pupil for the purpose of bullying the pupil and such that another pupil would reasonably believe, or has reasonably believed, that the pupil was or is the pupil who was impersonated.

(III) Creating a false profile for the purpose of having one or more of the effects listed in paragraph (1). “False profile” means a profile of a fictitious pupil or a profile using the likeness or attributes of an actual pupil other than the pupil who created the false profile.

The expanded definition of an “electronic act” represents new and uncharted areas of student discipline, especially for discipline based on “off-campus” conduct, and will likely result in a spate of litigation related to how far a school district’s jurisdiction extends beyond the traditional “four walls” of the school. Many cases across the nation have addressed the inherent tension between students’ free speech rights on one hand, and the rights of students to a safe, secure and non-threatening learning environment, on the other. Although such cases are extremely fact-based, a school can, within the bounds of constitutional protections, regulate off-campus speech that causes a material and substantial disruption of school activities, provided that sufficient notice to that effect has been given to students. (J.C. v. Beverly Hills Unified School District, (C.D. Cal., 2010) 71 F.Supp.2d 1094) School districts are thus well advised to update policies, regulations, the annual notice to parents, and parent-student handbooks, to incorporate clear notifications about changes in the student discipline laws.

If such action is not already underway, school districts may also want to consider exploring ways to address the concept of “restorative justice,” as stated in Education Code section 48900.5, subdivision (b)(6), added by AB 1729. This appears to reflect efforts over the last few years by student advocates to advance the concept of “educational equity” and a more “thoughtful response to student misconduct,” and stems from studies indicating that exclusionary discipline is largely ineffective at increasing school safety or improving the behavior of discipline students. Student advocates also point to studies indicating that students of color are disproportionately referred for discipline.

In the wake of this recent legislation student advocacy groups are becoming more and more vocal in their pursuit of student discipline reform, urging school districts to develop plans to incorporate “restorative practices” in their student discipline policies. Such practices would, for example, be designed to enhance interactions among students, parents, teachers, administrators and the community at large to enable students to take responsibility for their actions and to learn from their mistakes. Restorative justice programs may also include support mechanisms students need to stay in school and to reduce conduct leading to suspensions and expulsions. Advocates argue that “discipline” should be designed to prevent misconduct and teach students (and school employees) to behave in ways that contribute to academic and behavioral success.

School district may be able to use some “tried and true” interventions in a restorative justice context but will likely be called upon to generate new and alternative methods to address student misconduct in ways that are consistent with the policy trends discussed here. This may be especially necessary as schools encounter student misconduct that does not fit within traditional conduct standards, such as “electronic acts.” Alternative methods of intervention developed in response to calls for restorative justice programs could be particularly useful when the administration is faced with “off-campus” misconduct that does not rise to the level of “material and substantial disruption of school activities” sufficient to warrant exclusionary discipline.

THE TREND CONTINUES

On February 15, 2013, Assembly member Dickinson introduced Assembly Bill 420. As amended in the Assembly on April 10, 2013, according to the Legislative Counsel’s Digest, “the bill would limit [the] authority of a superintendent of a school district and a principal by only allowing a pupil enrolled in any grades 6 to 12, inclusive, to be suspended, but not expelled, for willful defiance on or after the 3rd offense in a school year, provided other specified correction measures were attempted before the recommendation to suspend. The bill also would state the intent of the Legislature to minimize the excessive use of willful defiance and encourage schools to instead prioritize and use alternative means of correction.”

Although it successfully emerged from the Education Committee on April 18, 2013, it is too early to tell whether AB 420 will remain intact through the legislative process and be signed by the Governor. Nevertheless, it is another example of the strong push, no doubt through the lobbying efforts of various student advocate groups, to reform student discipline in the State’s public schools.

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