4303 -SUSPENSION AND EXPULSION

Students may be suspended or expelled from school only in compliance with law and Board policy.

Students may be suspended or expelled from school only in compliance with law and Board policy. Furthermore, all schools shall develop and implement viable alternatives to out-of-school suspension or expulsion. The Board encourages the use of in-school alternatives as preferable to out-of-school suspension. When student discipline is recommended, the following procedures shall apply. The Superintendent is authorized to develop administrative procedures implementing this policy.

4303.1 In-School Discipline

Most disciplinary matters can be handled by the teacher or principal without use of out-of-school suspension. When a student is subject to in-school suspension, after-school detention, or loss of transportation or other privileges, the student shall be told the accusation against the student and be given a chance to respond. The exchange may be informal and need not be in writing. Notice shall be provided to parents when a student receives a disciplinary referral that results in in-school suspension.

4303.2 Short-Term Suspension

Principals are authorized to suspend students for periods of 10 school days or less for violations of the Code of Student Conduct or local school rules when the principal has notified students that violation of the local school rule may result in suspension. Principals shall defer the beginning of any suspension to the day following the decision to suspend, unless immediate suspension is necessary to avoid disruption of school. In suspending a student for 10 school days or less, the principal shall take the following steps.

Investigate the alleged misconduct promptly.
Give the student oral or written notice of the accusation and evidence against the student and give the student the opportunity to respond and make statements in mitigation of the charges. If the student denies the conduct or identifies witnesses who could exonerate the student, the principal shall make reasonable efforts to follow up or contact possible exculpatory witnesses.
Notify a parent/guardian in person, by telephone, fax, email, or any other method reasonably designed to actually notify the parent that the student is being suspended, along with a description of the alleged conduct. This notice shall be given by the end of the workday during which the suspension is imposed when reasonably possible, and no later than two days after the suspension is imposed. When a principal is unable to contact a parent/guardian despite reasonable efforts, the principal shall keep a record of attempts to contact the parent/guardian.

A copy of the suspension notice shall be forwarded promptly to the Superintendent's office. The notice shall inform the parent/guardian that they are entitled to an informal conference regarding the suspension with the principal or designee. The parent/guardian is entitled to bring a representative to the conference. The conference should take place within three working days of the request. A short-term suspension is not appealable to the Superintendent or Board of Education under this policy.

Any student suspended short-term shall be provided:
1. The opportunity to take textbooks home for the duration of the suspension;
2. Upon request, the right to receive all missed assignments and, to the extent practicable, the materials distributed to students in connection with the assignment;
3. The opportunity to take any quarterly, semester, or grading period examinations missed during the suspension period.

4303.3 Emergency Suspension

In extraordinary circumstances, a principal may suspend a student from school immediately if the student's presence at school creates a direct and immediate threat to the safety of other students or staff, or substantially disrupts or interferes with the education of other students or the maintenance of discipline at the school. The principal shall give the student notice of the charges against the student and an opportunity to respond as specified under the procedures for short- or long-term suspension as soon as possible and no later than two days after the emergency suspension.

If the principal determines that emergency circumstances require that a student be suspended immediately and sent home during the day, and if a parent/guardian or other responsible adult designated by a parent/guardian, is unable to come for the student or cannot be reached, the student must remain at school under the principal's supervision until the close of the school day, unless circumstances make it unsafe for the student to remain at school and the principal can arrange for the student to be in a safe setting away from school. The age of the student and the seriousness of the offense should be considered.

4303.4 Long-Term Suspension

A long-term suspension is a suspension of greater than ten days and no more than the remainder of the school year, except that if the offense leading to the suspension occurs during the final quarter of the school year, the long-term suspension may include a period up to the first semester of the following school year. The principal may recommend long-term suspension as authorized under the Code of Student Conduct. Only the Superintendent has the authority to impose a long-term suspension. No long-term suspension will be imposed by the Superintendent until the student has been provided with an opportunity for a hearing as provided in this policy.

Notice of Long-Term Suspension

In any case in which the principal recommends a student for a suspension of more than 10 school days, he/she shall provide written notice of the suspension to the student's parent, guardian, caregiver or other person legally responsible for the student, and to the Superintendent. The notice must include:
1. A description of the incident and the student's conduct that led to the long-term suspension recommendation, including any aggravating or mitigating factors that were considered in determining the consequence.
2. A reference to the provisions of the Code of Student Conduct that the student is alleged to have violated.
3. The specific process by which the parent may request a hearing to contest the decision, as described in this policy.
4. The process by which a hearing will be held, as described in this policy.
5. Notice that the parent is permitted to retain an attorney to represent the student in the hearing process, or to have a single non-attorney advocate represent the student.
6. Notice that the parent has the right to review and obtain copies of the student's educational records before the hearing.
7. A reference to the board policy on the expungement of discipline records as required by G.S. 115C-402.

If school personnel are aware that the parent's first language is not English and foreign language resources are readily available, this notice shall be provided in both English and the parent's primary language.

The written notice should be provided to the parent/guardian by the end of the workday during which the suspension is recommended, but in no event later than the end of the following workday. The written notice shall be delivered by hand by a responsible adult, by certified mail, by telefax, by e-mail, or by any other written method reasonably designed to achieve actual notice of the recommendation.

Alternative Education Services

Any student who is recommended for long-term suspension, with the exception of students who are charged with a Level IV offense, shall be offered alternative education services unless educationally appropriate alternative education services are not available within the school district due to limited resources. Students must comply with the conditions for admittance and continued enrollment in the alternative educational program.

The Superintendent will consider whether to offer alternative educational services to students who have committed Level IV offenses on a case-by-case basis. The Superintendent will offer alternative educational services to a student suspended for 365 days unless a significant or important reason exists for declining to offer such services. Depending on the circumstances, significant or important reasons for denying alternative education may include, but are not limited to, the following:

The student exhibited violent behavior;
The student threatened staff or other students;
The student substantially disrupted the learning process;
The student otherwise engaged in serious misconduct that makes the provision of alternative educational services not feasible;
Educationally appropriate alternative education services are not available due to limited resources; or
The student failed to comply with reasonable conditions for admittance into an alternative education program.

The Superintendent will notify the student/parent in writing of the reason for declining to offer alternative educational services. If an alternative education in lieu of suspension is denied, the student/parent may appeal the Superintendent’s decision to the Board of Education.

While a student who is attending an alternative educational program in lieu of long-term suspension, the student shall not be on the grounds of any school other than the alternative program or attend any school-sponsored events without permission of the principal responsible for that event. Violation of this provision will be considered trespassing.

Request for Appeal of Long-Term Suspension

The parent/guardian or student has three days to appeal the suspension to the office of the Superintendent after receipt of the written notice of suspension. Upon receipt of the notice of appeal from the parent/guardian or student the Superintendent’s designee shall promptly convene a three-member hearing panel ("hearing panel") to hear the student's appeal. The hearing panel shall serve as the Superintendent’s designee in approving long-term suspensions and in recommending expulsions. The hearing panel shall not include any employees under the supervision of the principal who recommended the long-term suspension/expulsion.

Review of Recommendation for Long-Term Suspension in the Absence of an Appeal

If a parent/guardian fails to request a hearing, the principal's recommendation shall be forwarded to the Superintendent for final decision. The Superintendent/Designee will review the circumstances of the recommendation for long-term suspension and may (a) impose the suspension if it is consistent with board policy and appropriate under the circumstances; (b) impose another appropriate penalty authorized by board policy; or (c) decline to impose any penalty. The Superintendent will notify the parent in writing of his or her decision no later than the tenth day of suspension.

Long-Term Suspension Appeal Hearing Procedures

If the parent/guardian or student appeals the suspension, the Superintendent’s designee shall convene a hearing before the expiration of the 10 day suspension imposed by the principal.

The Superintendent’s designee shall promptly notify the parent/guardian or student in writing by mail or hand delivery of the location, date and time of the hearing. A copy of this letter will be forwarded to the principal. The student or parent/guardian may request a continuance of the hearing or in writing may waive such hearing. If the hearing is postponed at the request of the student or parent or is requested outside of the deadline for submitting a hearing request, the student shall not have the right to return to school pending the hearing.

The hearing notice shall state that the student and his/her parent/guardian are entitled to be represented at the hearing by a representative of their choice, who may be an attorney. The student or parent/guardian must notify the Superintendent’s designee at least two days before the hearing if they intend to be represented by an attorney.

The hearing shall be informal in nature and conducted by an impartial hearing panel. Formal rules of evidence for court proceedings do not apply. The Superintendent shall develop procedures, consistent with state and federal law, for the conduct of suspension appeal hearings, and a copy of these procedures shall be provided to the student/parent with the notice of suspension. The procedures shall include the following information:

The student, parent or student's representative has the right to review the student’s educational records prior to the hearing, as well as any audio or video recordings of the incident to the extent permitted by state and federal laws regarding confidentiality of records, and the information supporting the suspension that may be presented as evidence at the hearing. This shall include witness statements, except that the principal shall not be required to disclose the names or other identifying information for witnesses if such information could create a safety risk for the witnesses. Prior to the hearing, the parties shall exchange any and all documents and other materials intended to be presented at the hearing, to the extent not already disclosed.
The hearing may be attended by the principal and his/her assistants designee, legal counsel of the Durham Public Schools, the student and parent(s), and the student's representative as permitted under this policy. Witnesses other than the student/parent/guardian or school administrators should be present only when they are giving information.
The principal shall present evidence first, followed by the student. Either side may present evidence including witness statements or oral testimony. The hearing panel may consider any evidence of a kind commonly relied upon by reasonable persons in the conduct of serious matters, including hearsay evidence. If the student intends to call another student as a witness, the student witness must have written permission from his/her parent to appear during the hearing. The student must make arrangements for the student’s witnesses to attend the hearing. The school will not compel staff members or students to testify but will make arrangements to allow school witnesses to appear if they are willing.
Both the principal or school representative and the student or his/her representative may cross-examine the witnesses presented by the other side. The hearing panel may limit questioning by any person if such questioning is repetitive or irrelevant, and to make other procedural and evidentiary rulings.
The hearing panel shall maintain an audio recording of any information presented orally at the hearing and shall maintain a record of any tangible evidence presented.
After the evidence has been presented and the hearing adjourned, the hearing panel shall reach a decision in private. The panel will determine the relevant facts and the credibility of witnesses based on the evidence presented at the hearing. The decision will be reached by simple majority and will be based solely on the evidence presented at the hearing. The panel may (a) impose the suspension recommended by the principal if it is consistent with board policy and appropriate under the circumstances; (b) impose another appropriate penalty authorized by board policy; or (c) decline to impose any penalty. The panel shall notify the Superintendent and the student/parent of its decision in writing.
If the student or his/her parent/guardian fails without good excuse to appear for the panel hearing after receiving reasonable notice of the time and place, the parent/guardian waives any right to appeal the suspension to the Board of Education, the hearing will not be held and the recommendation of the principal shall be forwarded to the Superintendent or designee for final decision.

Long-Term Suspension Appeal to the Board of Education

The following rules will govern appeals to the Durham Public Schools Board of Education from disciplinary decisions of the Superintendent:

A decision of the hearing panel to suspend a student from school for a period in excess of 10 school days may be appealed by the student or his/her parent/guardian to the Durham Public Schools Board of Education ("the Board") by giving written notice to the Superintendent and the Board within 10 school days after receiving notice of the hearing panel’s decision. No particular form is required for giving notice of appeal.
The hearing to consider the appeal will be conducted in closed session by a hearing panel designated by the Board (“Board panel”). The hearing may be attended by the appealing student, his/her parent/guardian, the student's representative of their choice, who may be an attorney, if any, the Superintendent and such of his assistants as he may designate, legal counsel of the Durham Public Schools, and any other persons as the Board panel may deem necessary or appropriate. The Board panel shall make and maintain a record of the hearing.
The Board panel will hold a hearing to consider the appeal if possible within 10 business days after receiving notice thereof and will notify the appealing student, his/her parent/guardian, and legal counsel, if any, of the date of the hearing at least five days in advance
Upon receipt of the notice of appeal, the Superintendent will assemble a record of all matters considered by the hearing panel.
The record and a copy of the hearing panel's decision will be provided by the Superintendent to the Board at least five business days prior to the date of the Board panel hearing. A copy of the record will also be available at the office of the Superintendent to be picked up by the appealing student, his/her parent/guardian, or legal counsel.
In considering the appeal, the Board panel will review and consider the entire record of the proceedings before the hearing panel, including all of the evidence offered by the school administration and the student. Ordinarily, the Board panel will not hear or consider any additional evidence at the hearings on appeal. However, in extraordinary circumstances and in the exercise of its discretion, the Board panel by majority vote may permit either party to call witnesses or offer additional evidence.
At the hearing, each side shall be allotted a total of 30 minutes to present oral argument. The board panel may extend the 30 minute time limit if it determines that additional time is warranted.
Upon conclusion of the hearing, the Board panel will consider all evidence in the record and enter its written decision. The Board panel must adopt the factual determinations made by the hearing panel unless they are not supported by substantial evidence in the record. The Board panel may adopt the disciplinary recommendation of the hearing panel, modify that recommendation, or reject the panel’s recommendation and impose a different disciplinary consequence or no consequence. Following the issuance of the Board panel’s decision, the Superintendent shall implement the decision.

A copy of the Board panel's decision will be mailed via certified mail to the student and his/her parent(s)/guardian, or to his/her legal counsel, if any, and to the Superintendent. The decision should be mailed within five working days of the Board panel's decision, or if the decision is not unanimous, the decision of the full Board.

The decision of the Board under this provision is final, subject only to judicial review in accordance with Article 4 of Chapter 150B of the General Statutes.

4303.5 365-Day Suspension for Firearms/Destructive Devices

The procedures for appeal of long-term suspension above shall apply in cases involving the possession or use of a firearm or destructive device except as follows: The hearing panel shall only decide whether the student committed the violation and not what length of discipline is appropriate. Upon receipt of the hearing panel's decision, the Superintendent will review the case and may impose the 365-day suspension or modify the 365-day suspension on a case-by-case basis. If the Superintendent imposes a 365-day suspension, the student and parent shall be notified of the Superintendent's decision and of the right to petition the board for readmission after 180 calendar days from the first date of the 365 day suspension, following the procedures in Policy 4304. The Superintendent will also notify the student and parents regarding whether admission to the alternative school will be offered during the term of the suspension.

4303.6 Suspension of Children with Disabilities

"Child(ren) with a disability" as used in this section may refer to a child identified as disabled in accordance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973 (Section 504), or both. Each subsection below is prefaced with an explanation of the extent to which it applies to students who are identified under both IDEA and Section 504, and to those identified solely under Section 504.

Suspensions of Up to Ten (10) Days in a School Year (Short-Term Suspensions)

This section applies to children identified as disabled under either the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act of 1973, or both.

A child with a disability may be suspended for a period of up to 10 consecutive days, or for multiple periods of less than 10 days to the extent permitted by state and federal law, if the child exhibits behavior for which nondisabled students could be suspended. The school shall comply with all applicable federal and state guidelines governing such suspensions. "Suspension" includes both out-of-school suspensions and in-school suspensions when students are excluded from their educational programs for the entire school day.

Multiple Short-Term Suspensions Exceeding 10 Days Cumulative in a School Year

This section applies to children identified as disabled under either the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act of 1973, or both.

A series of short-term suspensions that accumulate to more than 10 school days in a school year may create a pattern of exclusions that constitutes a "significant change in placement." Before imposing a suspension that constitutes a significant change in placement, the school must conduct a reevaluation of the student. The determination of whether the series of suspensions creates a pattern of exclusions that constitutes a significant change in placement will be made on a case-by-case basis whenever a proposed suspension will exceed a cumulative 10 days during a school year. Among the factors to be considered in making this determination are the length of each suspension, the proximity of the suspensions to one another, and the total amount of time the child is excluded from school. If it is determined that the proposed suspension will not constitute a significant change in placement, the school may implement the suspension to the extent permitted by state and federal law and in accordance with Board policy applicable to nondisabled students. The school shall comply with all applicable federal and state guidelines governing such suspensions. If it is determined that the suspension constitutes a significant change in placement, then prior to the eleventh day of suspension, the school shall follow the steps outlined in the next subsection below.

Long-Term Suspensions/Expulsions or Other Suspensions that Result in a Change of Placement

Except as noted, this section applies to children identified as disabled under either the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act of 1973, or both. In the event that a child with a disability exhibits behavior which, if the child were not a child with a disability, could result in the suspension or expulsion of the child from school for a period of more than 10 days or a series of suspensions that result in a change of placement, the school shall immediately, if possible, but not later than 10 days after the decision to take such disciplinary action, require the IEP team and other qualified individuals to: (1) develop a plan for conducting a functional behavior assessment; and (2) review the relationship between the child's disability and the behavior subject to disciplinary action in accordance with state and federal law. If the review establishes that the misconduct is not a manifestation of the child's disability, the school may initiate its normal disciplinary procedures, but shall continue to provide the student with a free appropriate education to the extent and in the manner required by law. If the review establishes that the misconduct is a manifestation of the child's disability, the school may not initiate its normal disciplinary procedures. The IEP team will determine if the child's current educational program and placement are appropriate and will implement a behavior intervention plan in accordance with law. For students identified solely under Section 504, the following modifications to this section apply: In lieu of an IEP team, a multidisciplinary team that includes persons knowledgeable about the student shall conduct the review of the relationship between the student's disability and the behavior subject to disciplinary action. The team may, but is not required to develop or implement a behavior intervention plan. Educational services need not be continued during normal disciplinary procedures unless such services would be provided to nondisabled students under the same circumstances.

Interim 45-Day Placement for Violation of Code of Conduct Involving Weapons or Drugs

This section applies to children identified as disabled under the Individuals with Disabilities Education Act. It does not apply to children identified as disabled solely under Section 504 of the Rehabilitation Act of 1973. If a child with a disability brings a weapon to school or to a school function or acquires a weapon at school or at a school function, or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function, or has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function, the child may be placed immediately in an interim alternative educational setting for up to 45 school days (or for the same period that a nondisabled student would be subject to discipline, if shorter). The appropriate interim alternative educational setting will be determined by the IEP team in compliance with federal and state guidelines. Following the interim alternative placement, including during the pendency of any due process proceedings initiated by the parent/guardian, the student must be returned to his or her prior placement, unless the parent/guardian and school agree otherwise. "School function," "weapon," "illegal drugs," "controlled substance," and "serious bodily injury" are defined in accordance with the Individuals With Disabilities Education Act, 20 U.S.C. 1415.

Emergency 45-Day Interim Alternative Placement of Dangerous Student

In an emergency situation, where maintaining the current placement of the child is substantially likely to result in injury to the child or to others, the school district may seek a judicial order from a court or hearing officer for a change in the child's placement to an appropriate interim alternative educational setting for not more than 45 days, as provided by law.

Parental Notice of Rights

In all actions involving suspension of a disabled child for more than 10 days, the parties have available all due process rights of G.S. 115C-116 and 20 U.S.C.1415.

Not later than the day on which the decision to take disciplinary action is made, the school shall notify the child's parent/guardian of the action and of their due process rights. This section applies to children identified as disabled solely under Section 504 of the Rehabilitation Act of 1973. In all actions involving suspension of a disabled student for more than 10 days, the parties have available all the rights under Section 504 of the Rehabilitation Act of 1973 and the Board's Section 504/ADA policy. The parent/guardian shall be notified of the action and of their rights as soon as practicable under the circumstances.

Consideration of Student Records By Decision-Maker

Whenever the school initiates disciplinary procedures applicable to all children as described in this section, it shall provide a copy of the student's special education and disciplinary records for consideration by the individual(s) making the final determination regarding the disciplinary action.

Students Not Yet Determined to be Eligible for Special Education

This section applies to children who may qualify for services under the Individuals with Disabilities Education Act. It does not apply to children identified as disabled solely under Section 504 of the Rehabilitation Act of 1973.

If a child who has not been determined to be eligible for special education commits a violation of school rules that would result in suspension or expulsion from school, the school may not exclude the child from school to the same extent that it would exclude a nondisabled child for the same offense, if the school had knowledge that the child was disabled before the violation occurred.

A school is deemed to have knowledge of a student’s disability if:

The parent/guardian has expressed a concern in writing to school officials that the student is in need of special education;
The parent/guardian has requested an evaluation to consider eligibility for special education;
The child’s teacher or other school staff have expressed concern about a pattern of behavior by the student to the EC Director or other supervisory personnel; or
Prior to the behavior that precipitated the disciplinary action, the behavior and performance of the child clearly and convincingly established the need for special education. Prior disciplinary infractions alone do not constitute clear and convincing evidence.

4303.7 Expulsion of a Student

Upon recommendation of the principal and Superintendent, the Board may permanently expel a student who is fourteen years of age or older and whose behavior indicates that the student's continued presence in school constitutes a clear threat to the safety of other students or employees. Prior to the expulsion of any student, the local board shall conduct a hearing to determine whether the student's continued presence in school constitutes a clear threat to the safety of other students or school staff. The student shall be given reasonable notice of the recommendation in accordance with G.S. 115C‑390.8(a) and (b), as well as reasonable notice of the time and place of the scheduled hearing. The Board's decision to expel such a student shall be based on clear and convincing evidence. The Board may also consider the State Board of Education guidelines defining acts and conduct that are considered a clear threat to the safety of students or employees.

Prior to ordering the expulsion of such a student, the Board shall consider whether there is an appropriate alternative program offered by the Board that may provide education services to the student. The decision of the Board under this provision is final, subject only to judicial review in accordance with Article 4 of Chapter 150B of the General Statutes.

Any student who has been expelled may petition the Board for readmission after 180 calendar days from the date of the beginning of the student's expulsion, following the procedures contained in Policy 4201.

4303.8 Maintenance of Discipline Data

The Superintendent shall maintain data on each student suspended, expelled, or reassigned for disciplinary purposes, including the race, gender, and age of each student, the school attended, the duration of each suspension, whether an alternative education was considered or provided for each student and whether a student had multiple suspensions. The Superintendent shall report this data to the Board of Education annually.

Legal Reference: G.S. 115C-45(c), -276, -390.1-390.12; The Individuals with Disabilities Education Act, 20 U.S.C. 1415; 34 C.F.R. Part 300; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; 34 C.F.R. Part 104;

Legal Reference: G.S.115C-106 to -116.

Adopted Effective: August 12, 1992

Revised Effective: September 27, 1995

Revised Effective: July 1, 1999

Revised Effective: June 26, 2008

Revised Effective: October 22, 2009

Revised Effective: July 12, 2011

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