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Case
Highlights
Resources
Publications
Links
SRP
receives numerous requests for legal
assistance regarding the suspension and expulsion of
students from public schools.
SRP
provides representation in discipline cases before the Commissioner
of Education and State Board of Education, in court, and occasionally,
before a local board of education. SRP attorneys have prepared and
presented testimony and comments on student discipline policy and
law before the State Board of Education and Department of Education.
Additionally, SRP attorneys provide public education on student
discipline through presentation of seminars and workshops.
In
New Jersey, state statute - N.J.S.A. 18A:37-1 et seq.
- grants schools the authority to suspend and expel students. This
law is general in its terms, covers some, but not all, of the grounds
for removing a student, and only minimally addresses procedures
for imposing discipline. Procedural protections for students involved
in suspension and expulsion are governed by the Due Process clause
of the Fourteenth Amendment of the United States constitution. Case
law - including federal and state court decisions and administrative
decisions by the New Jersey Commissioner of Education and State
Board of Education - is the primary source of the law on student
discipline. For more information on student discipline law and policy,
please view ELC's publication "Student
Discipline Rights and Procedures: A Guide for Advocates (PDF)."
The Need
for Reform of Student Discipline Law
To
be both fair and effective, student discipline law and policy must
balance two separate rights of students: the constitutional right
to a public education, and the right to a safe and orderly learning
environment. Procedures and laws to protect students from arbitrary
and wrongful discipline are necessary, as are procedures and laws
to allow schools to discipline disruptive and dangerous students.
The scales of student discipline have tipped, however, so that in
many instances, the constitutional right to a public education is
wrongly denied to students in the name of school safety and order.
While no one can question the necessity of a safe and orderly learning
environment, nor the difficult job faced by school administrators
and teachers every day, many deficiencies in student discipline
law allow schools to inappropriately punish and exclude students.
Schools
in New Jersey are permitted to suspend and expel students at any
age and for any reason, and there is no state mandate for the provision
of alternative education to those students who are removed from
school. Schools employ over-broad zero tolerance policies that punish
all offenses severely, regardless of the individual student's circumstances,
motive or intent. Moreover, because there are no state standards
or guidelines governing student discipline, the rate of suspension,
expulsion and placement in alternative education programs varies
greatly from district to district. Simply stated, a student's right
to a public education may depend on whether he or she resides in
a district with effective discipline policies that emphasize intervention
and prevention, or in a district that responds to disciplinary infractions
by excluding students from school.
SRP
is working to reform these deficiencies in student discipline policy
and law through litigation and through a multifaceted policy initiative.
In 2003, the New Jersey Department of Education agreed to fund a
student
discipline reform project developed by ELC. The project,
which will be funded under Title IV of the federal Safe and Drug
Free Schools and Communities program, will demonstrate implementation
of needs-driven and research-based comprehensive safety and discipline
policies and practices in three NJ schools - urban suburban and
rural.
Ending Zero
Tolerance
Zero
tolerance school discipline policies, intended to send a strong
message that certain behaviors will not be tolerated by punishing
all offenses severely, are causing mass exclusion of youth from
school. School officials, under public pressure to do something
about a perceived threat of violence in schools, apply zero tolerance
as an expedient response to student misbehavior or, in many cases,
typical student behavior unreasonably construed or dangerous. Research,
however, does not support the use of zero tolerance in promoting
school safety and order, and common sense tells us that communities
are at greater risk of crime and violence when youth are excluded
from schools, unoccupied and unsupervised. In place of zero tolerance,
research suggests that schools with a comprehensive approach that
encompasses all points on the prevention-intervention continuum
can effectively prevent and address school violence and disorder,
without excluding students from school. Further, youth that receive
an education are far more likely to contribute to society as workers
and citizens than those who are denied educational opportunity under
zero tolerance.
Zero
tolerance operates contrary to the Bush Administration's educational
agenda to "leave no child behind," and risks putting many
youth on a fast track to juvenile delinquency and future unemployment,
poverty and crime. Particularly troubling, research shows that zero
tolerance disproportionately impacts minority children or those
with disabilities. Moreover, with its disregard of individual facts
and circumstance and severe punishment, zero tolerance works to
instill anti-democratic values in all youth.
SRP is working to put an end to unthinking
and punitive zero tolerance policies. SRP seeks to establish, through
litigation and regulatory and legislative advocacy, the following
basic rights of students:
- the right
to have individual needs, circumstances and intent considered
in discipline proceedings; and
- the right
to have schools consider suspension and expulsion only as a last
resort, after all reasonable intervention and prevention measures
have failed to help the student correct inappropriate behavior.
For
more information on zero tolerance, please view ELC's articles Advocating
for Reform of Zero Tolerance Student Discipline Policies: Lessons
from the Field (PDF) and Survey
of Key Education Stakeholders on Zero Tolerance Student Discipline
Policies (PDF).
Establishing
the Right to Alternative Education
Another
of SRP's goals is to firmly establish the right to alternative education
for the rare student whose dangerous or overly disruptive behavior
requires his or her removal from a traditional public school. The
right to alternative education stems from a student's fundamental
right under the New Jersey constitution to a thorough and efficient
education up to the age of 18 years, N.J. Const.,
Art. VIII, sec.4 para. 1, and statutory right under the school residency
statute, N.J.S.A. 18A:38-1 et seq., to attend
school in the district of residence until age 20. The right to alternative
education for an adjudicated juvenile who has been expelled was
recognized in the case of State of New Jersey in the Interest
of G.S., 330 N.J. Super. 383 (Chan. Div. 2000).
The Abbott
districts have an explicit requirement to offer alternative
education programs under Abbott v. Burke, 153 N.J.
480, 515 (1998) (Abbott
V). Placement in an alternative education program is
also explicitly required by state statute for students who have
been removed from the regular education program for (1) assault
with a weapon against school personnel or another student; and (2)
possession of a firearm on school property, on a school bus, or
at a school function, or conviction or adjudication of delinquency
for a crime involving firearm on school property, on a school bus,
or at a school function. N.J.S.A. 18A:37-2.2; N.J.S.A.
18A:37-8.
For the first time in 2002, the New Jersey State Board of Education
addressed the right to alternative education following expulsion
in a case brought by SRP called P.H.
v. Bergenfield Board of Education. The State Board "concluded
from both a legal and educational policy perspective that a student
who is expelled from school must be provided with an alternative
education program until he either graduates from high school or
reaches his nineteenth birthday, whichever comes first." Most recently,
ELC has filed a brief
in response to the State's appeal in this case. The appeal seeks
to establish a right to alternative education under the NJ Constitution.
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