Mandatory suspensions are associated with the zero tolerance philosophy that began in the early nineties with the fear of “superpredators”, i.e., depraved teens committing unconscionable acts of violence (a phenomenon that never happened). In response to this fear, the Federal government passed the Gun Free Schools Act of 1994, codified in New York as Education Law §3214(3)(d). Under the law, a student who brings a weapon to school must be suspended for a period of not less than one year unless otherwise modified in the superintendent’s discretion. Students in violation of the law are referred to Family Court for juvenile delinquency proceedings or to Criminal court for juvenile offender proceedings.
Mandatory suspensions also require a fair hearing pursuant to EDN §3214(3)(c)(1) and are not finalized until the formal hearing is held or the parent pleads “no contest”. The determination of the superintendent following the fair hearing is subject to review by the board of education and the Commission or Education. The statute does not authorize the suspension of a student with a disability if the suspension is in violation of the Individuals with Disabilities Education Act (IDEA) (20 USC §§1400-1482) or New York Education Law Article 89.
Students can receive a five-day suspension from the board of education, superintendent, or the principal. EDN §3214(3)(b)(1). Prior to the suspension being enforced, unless the student poses a continuing danger to school people or property or presents an ongoing threat of disruption, the student is entitled to:
The conference is an opportunity for the student and parents to present the student’s version of the event and question witnesses. If written notice of the charges is not provided, then the suspension is not official and the student should return to school.
Suspensions longer than five days, sometimes called “Superintendent’s Suspension”, require a fair hearing, where the student has a right to an attorney, the right to question witnesses, and the right to present witnesses and other evidence. EDN §3214(3)(c)(1). The suspension is not finalized until this formal hearing is held or the parent pleads “no contest”.
As soon as the parents receive the suspension notice, they should request the suspension file from the school. The suspension file includes written statements from the accused student, written statements from any witnesses to the incident, the incident report, the student’s academic records, and any other evidence that the school plans to use at the hearing, including video, email, etc.
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Students deemed insubordinate, disorderly, violent or disruptive or whose conduct otherwise endangers the safety, morals, health or welfare of others can be suspended by the board of education, superintendent, or principal. EDN §3214(3)(a).
Regardless of the length of suspension, the student is entitled to alternative instruction. EDN §3214(3)(a). Suspended students have right to take state exams. Suspended students have a right to a chance to promotion to the next grade, including earning credit for work done during the suspension.
If a parent suspects that his or her child has a disability, then the child is entitled to an expedited special education evaluation if the parents make the written request during the suspension. Students with disabilities are entitled to special protections which effect disciplinary proceedings.
A school must provide alternative education for students serving out-of-school suspension. This may be at an alternative site where the student can attend classes. A suspended student should begin attending the alternative program as soon as notice is received, or he or she will be marked as absent. If the suspension coincides with a Regents or other state test, the student maintains a right to take that test.
A teacher has the authority to remove a disruptive student from his or her classroom. EDN §3214(3-a). A disruptive student is defined as a student who is “substantially disruptive of the educational process or substantially interferes with the teacher’s authority over the classroom.” EDN §3214(2-a)(b). Students removed from classrooms are entitled to:
If the teacher removes the student, then the student has the opportunity to be heard within 24 hours. EDN §3214(3-a)(a). If the principal removes the student, then the student has the opportunity to be heard within 48 hours. EDN §3214(3-a)(b).
Students removed cannot return until authorized by the school principal. Id. The principal will not set aside the discipline imposed by the teacher unless the principal finds that the basis for removal is not supported by substantial evidence, that it is otherwise in violation of the law, or that the conduct warrants school suspension and that the suspension will be imposed. EDN §3214(3-a)(c).
As Attorney for Child in Schenectady and Schoharie Counties, and as an 18-B defense counsel, the Law Office has the unique perspective of understanding the ramifications of misapplied school discipline on children, especially minority teens and students with disabilities. We bring our experience in Family Court and Juvenile Justice to our advocacy for children in the areas of special education, student rights, bullying and juvenile law to the table when its time to represent your child in a Superintendent's Hearing, a Manifestation Hearing, or a complaint to the Office of Civil Rights for a due process violation.
The school’s code of conduct establishes prohibited student conduct and the associated penalties. 8 NYCRR §100.2(l)(1). Discipline must “be appropriate to the seriousness of the offense and where applicable to the previous disciplinary record of the student” (8 NYCRR §100.2(l)(1)(1)(i)(f)) and must ensure that students removed from the classroom or school are provided continued education programming and activities. EDN §2801(2)(e).