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Ramifications of the New Student Discipline Regulations Presentation by: Stephen C. Bounds, Esq. Director of Legal & Policy Services ***** John R. Woolums,

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Presentation on theme: "Ramifications of the New Student Discipline Regulations Presentation by: Stephen C. Bounds, Esq. Director of Legal & Policy Services ***** John R. Woolums,"— Presentation transcript:

1 Ramifications of the New Student Discipline Regulations Presentation by: Stephen C. Bounds, Esq. Director of Legal & Policy Services ***** John R. Woolums, Esq. Director of Governmental Relations Maryland Assoc. of Boards of Education

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3 Student Discipline Changes For Maryland Schools Once upon a time… Schools in Maryland were given local discretion to discipline students as warranted to ensure school safety and uninterrupted learning (Ed. Art. § 7-305) Appeals could be filed if school systems acted inappropriately (Ed. Art. § 7-305)

4 Student Discipline Changes For Maryland Schools The State Board heard such an appeal in Atanya C. v. Dorchester BOE Atanya C.s 9 th grade daughter, J.C., was in a fight that injured a teacher seeking to stop the fight J.C. had a history of school fighting and received a long-term suspension

5 Student Discipline Changes For Maryland Schools In State Board Opinion No , in a 5-4 decision by the barest of margins affirmed J.C.s long-term suspension with the most minimal education The State Board in Atanya C. put all school systems on notice, that future expulsion-sans-education cases will be reviewed most carefully for abuse of discretion

6 Student Discipline Changes For Maryland Schools The entire State Board did agree that the issue of long-term suspension and meaningful access to education services deserves a full review The State Board further stated its intention to develop a solution to the education policy problems presented by long-term suspensions

7 Student Discipline Changes For Maryland Schools The State Board over the next several years established four basic principles for student discipline reform: 1.Prohibiting zero tolerance policies; 2.Reflecting a philosophy that fosters positive behavior;

8 Student Discipline Changes For Maryland Schools 3. Providing continuous education services to all suspended and expelled students; and 4.Holding school systems accountable for reducing and eliminating disproportionate impacts of student discipline policies on minority students

9 Student Discipline Changes For Maryland Schools MABE and other education advocacy entities in Maryland (and often beyond) have embraced these four principles and accountability for results The real question is whether these are best accomplished by local discretion accompanied by accountability or by one size fits all statewide mandates

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11 Student Discipline Changes For Maryland Schools MSDE Staff and the State Board were assisted in all aspects of this student discipline reform process by the Open Society Institute (now Foundations), created in 1993 by Hungarian billionaire George Soros to promote human rights and social reform in education and other areas of concern

12 Student Discipline Changes For Maryland Schools Later the State Superintendent in May, 2013 named a School Discipline Regulation Workgroup to address some of the language concerns raised in comments; a Best Practices Workgroup to conduct a relevant literature review; and a Code of Conduct Workgroup to consider changes to the existing Code

13 Student Discipline Changes For Maryland Schools On June 25, 2013 the School Discipline Regulation Workgroup presented its findings and the State Board on July 23, 2013 granted permission to publish the somewhat modified COMAR The regulations were republished on December 13, 2013.

14 Student Discipline Changes For Maryland Schools After the public comment period ended on January 13, 2014, the State Board on January 28, 2014 finally adopted the new regulations The new regulations are under COMAR 13A ,.12,.15 and.21

15 Student Discipline Changes For Maryland Schools Implementation Schedule: By the beginning of school year , each local board shall review and revise its student discipline policies and regulations with the goal of maintaining an environment of order, safety, and discipline necessary for effective learning.

16 Student Discipline Changes For Maryland Schools The regulations require that local board policies and regulations shall, at minimum, satisfy six criteria: 1.Reflect a philosophy fostering positive behavior; 2.Be designed to keep student connected to school;

17 Student Discipline Changes For Maryland Schools 3. Describe conduct leading to in-school and out-of-school suspension or expulsion; 4. Allow for discretion in imposing discipline; 5. Address ways to meet educational and counseling needs of excluded students; and 6. Explain why extended suspensions and expulsions are last-resort options.

18 Student Discipline Changes For Maryland Schools The new regulations repeal the provision that mirrored the statutes allowance for school administrator discretion to discipline students as warranted under (Ed. Art. § 7-305) And deleted, [In those instances when the behavior of a student is disruptive and detrimental to the operation of the school, the student may be suspended or expelled.]

19 Student Discipline Changes For Maryland Schools New Definitions Suspension Short-term suspension Long-term suspension Extended suspension Expulsion New Mandates Education services Behavioral support services Education liaisons 10-day return to school rule 45-day hearing deadline Disproportionality remediation plans

20 Student Discipline Changes For Maryland Schools Suspension means the application of extended suspension, in-school suspension, short-term suspension, or long-term suspension

21 Student Discipline Changes For Maryland Schools Short-term suspension means the removal of a student from school for up to but not more than 3 school days for disciplinary reasons by the principal

22 Student Discipline Changes For Maryland Schools Long-term suspension means the removal of a student from school for a time period between 4 and 10 school days for disciplinary reasons by the principal

23 Student Discipline Changes For Maryland Schools Extended suspension means the exclusion of a student from a students regular program for a time period between 11 and 45 days

24 Student Discipline Changes For Maryland Schools Extended suspension is limited to circumstances in which: the student has engaged in chronic and extreme disruption of the educational process that has created a substantial barrier to learning for other students across the school day; and

25 Student Discipline Changes For Maryland Schools Extended suspension is limited to circumstances in which: the duration is limited to the shortest period practicable; and the students return to school prior to the completion of the suspension period would pose an imminent threat of serious harm to other students and staff

26 Student Discipline Changes For Maryland Schools Expulsion means the exclusion of the student from the students regular school program for 45 days or longer

27 Student Discipline Changes For Maryland Schools Expulsion is limited to circumstances in which: the duration is limited to the shortest period practicable; and the students return to school prior to the completion of the expulsion would pose an imminent threat of serious harm to other students or staff

28 Student Discipline Changes For Maryland Schools Mandated Services for Excluded Students School systems must provide students excluded from school in extended suspension (11 to 45 days) or expulsion (45 days or longer) with comparable educational services and appropriate behavioral support services to promote successful return to the students regular academic program

29 Student Discipline Changes For Maryland Schools Minimum Education Services For each student suspended or expelled out of school, who is not placed in an alternative education program, the school system must: provide minimum education services including daily class work and assignments from each teacher, which shall be reviewed, corrected and returned to the student on a weekly basis; and

30 Student Discipline Changes For Maryland Schools Mandated Staff Liaison For each student suspended or expelled out of school, who is not placed in an alternative education program: Each principal must assign a staff liaison between teachers and the students and their parents to communicate weekly about class work assignments and school-related issues by phone or with students and their parents

31 Student Discipline Changes For Maryland Schools Minimum Education Services for Short-term Suspensions (1-3 days) Schools must provide students with the opportunity to complete the academic work they miss during the suspension period without penalty; and Provide the contact information for the staff liaison responsible for ensuring that this requirement is met Otherwise, the same make-up process as for other excused absences applies to short-term suspensions

32 Student Discipline Changes For Maryland Schools 10-Day Return to School Rule If, by the 10 th day of the students suspension, the superintendent fails to make a decision on the principals request for extended suspension (11-45 days) or expulsion (longer than 45 days), the student must be returned to school unless it is determined that the students return to school would pose an imminent threat of serious harm to other students or staff

33 Student Discipline Changes For Maryland Schools Appeals: Timelines and Procedures The regulations include: a 45-day timeline and deadline for hearing appeals, even if using a hearing examiner; and a new requirement for school systems to share all documents and witness lists with parents/appellants 5 days before the hearing, without any corresponding requirement for the appellants

34 Student Discipline Changes For Maryland Schools Disproportionate Impact Analysis & Remediation The regulations require MSDE to develop a method to analyze whether there is a disproportionate impact on minority students, or a discrepant impact on special education students; and based upon MSDEs finding of a disproportionate or discrepant impact, the local school system must prepare and present a plan to reduce the impact within one year and eliminate it within three years

35 Student Discipline Changes For Maryland Schools Consider the Policy and Regulation changes that school systems will need to have in place for the school year starting in August Policy modification is a fairly complex and lengthy process in most systems HCPSS has 40+ Policies to change by then

36 Student Discipline Changes For Maryland Schools Policies to consider: Discrimination Sexual Harassment Bullying Curriculum Social Media Student Records Student Discipline Alcohol and Other Drugs Policies to consider: Use of Tobacco Products Weapons Search and Seizure Student Assault and/or Battery Gangs and Gang Activities Community or Reportable Offenses

37 Student Discipline Changes For Maryland Schools With respect to the remaining two workgroups and reports: The Best Practices Report is still pending (The State Board requested revisions based on concerns with theoretical rather than practical focus.) The Code of Conduct Report has been delayed until September of 2014 (MABE testified to voice concerns about the challenge to make required policy changes w/o the Code)

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39 Student Discipline Changes For Maryland Schools What is the Framework for a Statewide Student Discipline Plan? Announced in April 2014, it is MSDEs strategic plan (Draft, not distributed) for implementing the new regulations, to include: Reviewing local master plans; Conducting needs assessments; Identifying challenges; and Providing technical assistance.

40 Student Discipline Changes For Maryland Schools The Framework briefing included a timeline for the State Boards and MSDEs student discipline-related work: Maryland Student Records Manual (June 23, 2014); Best Practices in Student Discipline (July 22, 2014); Positive Behavioral Intervention and Supports (PBIS) Scale Up (July 22, 2014); and Maryland Guidelines for a State Code of Discipline (September 23, 2014).

41 Student Discipline Changes For Maryland Schools Maryland Guidelines for a State Code of Discipline The 1996 School Order and Discipline law required the State Board of Education to: Establish guidelines that define a State code of discipline for all public schools with standards of conduct and consequences for violations of the standards; and assist each county board with the implementation of the guidelines.

42 Student Discipline Changes For Maryland Schools The 1996 law required local boards to adopt regulations designed to create and maintain within the schools under its jurisdiction the atmosphere of order and discipline necessary for effective learning. The local regulations shall provide for educational and behavioral interventions, counseling, and student and parent conferencing; and provide alternative programs, which may include in­school suspension, suspension, expulsion, or other disciplinary measures that are deemed appropriate.

43 Student Discipline Changes For Maryland Schools The 1996 School Order and Discipline law resulted in the 1997 Maryland Guidelines for a State Code of Discipline, including: Roles & Responsibilities Standards of student conduct Classification I and II behaviors Possible ranges of interventions and consequences Recommendations for local implementation

44 Student Discipline Changes For Maryland Schools 1997 Students Parents and Guardians School System Personnel Community and Family Service Orgs. Statewide Community 2014 School Staff & Administrators Students Parents/Guardians Community-based/ City/Local Orgs. & Agencies Roles & Responsibilities

45 Student Discipline Changes For Maryland Schools 1997 Guidelines includes 2 classifications of behaviors and responses: Class I behaviors include academic dishonesty, bullying, disrespect, insubordination, destruction of property, fighting, sexual activity Class I range of responses includes suspension Class II behaviors include arson, extortion, harassment, tobacco/drug/alcohol possession, physical attack, theft, verbal or physical threat Class II range of responses includes police contact and expulsion

46 Student Discipline Changes For Maryland Schools 2014 Guidelines (draft) includes 5 levels of progressive discipline responses: 1.Classroom, support, and teacher-led 2.Classroom, support, and in-school removal 3.Support, in-school removal, and administrative 4.Support, removal, administrative, and out-of- school exclusionary 5.Long-term administrative, out-of-school exclusionary, and referral

47 Student Discipline Changes For Maryland Schools Removal in Level 3 refers to in-school suspension Many behaviors do not proceed to Level 4; the first level allowing out-of-school responses Many behaviors require proof of intent to permit discipline Many extended suspension/expulsion responses, when allowed, are limited to students in grades 6-12

48 Student Discipline Changes For Maryland Schools Up to Level 2 (excludes in-school suspension) Class cutting, tardiness, truancy, dress code, academic dishonesty, tobacco Up to Level 3 (excludes out-of-school suspension) Disrespect, personal electronics

49 Student Discipline Changes For Maryland Schools Up to Level 4 (excludes extended suspension or expulsion) Disruption, theft, destruction of property, trespassing Up to Level 5 (includes extended suspension or expulsion) Sexual activity/attack, harassment, threats, drugs & alcohol, fighting, serious bodily injury, explosives, weapons, arson

50 Student Discipline Changes For Maryland Schools Academic Dishonesty Includes plagiarizing, such as taking someone elses work or ideas (for students grades 6-12); forgery, such as faking a signature of a teacher or parent; or cheating Responses: Level 1 – written apology, talk w/school counselor, detention; and Level 2 – community service, peer mediation, temporary removal from class

51 Student Discipline Changes For Maryland Schools Non-illegal Drugs Unauthorized using/possessing of non-illegal drugs (e.g. Rx) Level 1 to 3 (including in-school suspension; excluding short-term out-of-school suspension)

52 Student Discipline Changes For Maryland Schools Being under the influence of alcohol, inhalants, or illegal drugs Where schools feel that a student who is under the influence of or found using alcohol or substances must be removed from school grounds, schools should consider sending the student home on medical leave, rather than as a disciplinary infraction/out-of-school suspension.

53 Student Discipline Changes For Maryland Schools Intent Fighting – Intentionally shoving, pushing, or being physically aggressive in the context of a fight (body check, intentional bumping, but NOT horseplay) Serious Bodily Injury – Intentionally misbehaving in such a way that unintentionally causes serious bodily injury Theft – Intentionally taking property without the owners permission

54 Student Discipline Changes For Maryland Schools Positive Behavioral Intervention and Supports (PBIS) Scale Up (July 22, 2014) Positive Behavioral Interventions and Support Program means the research–based, systems approach method adopted by the State Board to build capacity among school staff to adopt and sustain the use of positive, effective practices to create learning environments where teachers can teach and students can learn.

55 Student Discipline Changes For Maryland Schools PBIS is already mandated for: elementary schools with a suspension rate exceeding 10 percent of enrollment; and Any school with a truancy rate exceeding 1 percent. (Education Art. §7–304.1)

56 Student Discipline Changes For Maryland Schools Best Practices in Student Discipline: Policy, Practices, Professional Development (July 22, 2014) The draft report, distributed in February 2014, included sections on research, best practices to support pro-social behaviors, professional development, and an annotated bibliography A companion document included three research papers

57 Student Discipline Changes For Maryland Schools Best Practices to support pro-social behaviors: Multi-tiered systems of support (MTSS) Response to Intervention (RTI) PBIS Safe and Supportive Schools Initiative Continuum of Progressive Discipline Restorative practices Universal Design for Learning (UDL) Social Emotional Foundations for Early Learning National Triad Model for SROs

58 Student Discipline Changes For Maryland Schools Maryland Student Records Manual (MSRM) (June 23, 2014) The Manual provides offense codes and disposition codes for a statewide disciplinary data system. Offense Codes Health Related Exclusions (immunizations) Attendance Codes Attacks, Threats, Fights Disrespect, Insubordination, Disruption Dangerous substances Sex Offenses Weapons Arson, Fire, Explosives Other (e.g., academic dishonesty, use of telecommunications, etc.)

59 Student Discipline Changes For Maryland Schools In 2011 the Manual was updated to ensure that disposition codes identify not only the type of disciplinary response, but also describe the type of educational services provided, if any. The Manual provides the following tiers of disposition codes: Tier I: Out of School Short-Term Suspension – Educational Services Provided Tier II: Out of School Extended Suspension – Educational Services Provided, or Offered and Rejected by Parents Tier III: Expulsion – Educational Services Provided, Rejected, or Not Offered

60 Student Discipline Changes For Maryland Schools The State Board is considering significant revisions to the MSRM arising from the Boards study of the issues surrounding the enforcement of student disciplinary responses without the provision of educational services, and the concern that such actions may be taken in manner disproportionately impacting minority students and students with disabilities.

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62 Student Discipline Changes For Maryland Schools Meanwhile on January 8, 2014 the U.S. Dept. of Justice and the U.S. Dept. of Educ. jointly issued a 31 page Dear Colleague Letter (DCL) on the subject of student discipline Note that the basis for such federal involvement is constitutionally limited to Civil Rights Act violations

63 Student Discipline Changes For Maryland Schools The DOJ is responsible for enforcing Title IV of the Civil Rights Act which prohibits discrimination in public elementary and secondary schools based upon race, color or national origin, among other bases

64 Student Discipline Changes For Maryland Schools The DOE and DOJ are responsible for enforcing Title VI of the Civil Rights Act which prohibits discrimination based upon race, color or national origin by recipients of Federal financial assistance from DOE

65 Student Discipline Changes For Maryland Schools Prior to the January 8, 2014 DCL all investigations by the DOE and DOJ were based upon complaints received from students, parents, and others about possible racial discrimination in student discipline

66 Student Discipline Changes For Maryland Schools Now in addition to investigating complaints the DOE and the DOJ state in the letter that they intend to collaboratively and proactively initiate Civil Rights Act compliance reviews nationwide focused on student discipline

67 Student Discipline Changes For Maryland Schools In late 2013 in the Lubbock (TX) Independent School District, the DOE Office of Civil Rights (OCR) conducted the first of its nationwide compliance reviews (not based upon a complaint) to examine the districts Title VI compliance in minority student disciplinary action

68 Student Discipline Changes For Maryland Schools The new policy of conducting random compliance reviews instead of only investigating complaints is based upon the DOEs Civil Rights Data Collection (CRDC) which was newly expanded in 2013 and showed that students of color tend to be disciplined more than their peers

69 Student Discipline Changes For Maryland Schools The DCL addresses the issue by stating, In short, racial discrimination in school discipline is a real problem The DCL goes on to assert that increasing racial discrimination in school discipline can contribute to the school to prison pipeline

70 Student Discipline Changes For Maryland Schools The DCL is particularly hard on School Resource Officers (SRO) and warned that schools cannot divest themselves of responsibility for discrimination by relying on SROs, as the DOE and DOJ intend to hold schools accountable for discriminatory actions by SROs

71 Student Discipline Changes For Maryland Schools The scope of the federal reviews will not be limited to the principals office and beyond; but even intends to look at the initial referral by a teacher The DCL calls these teacher referrals, the subjective exercise of unguided discretion in which racial biases or stereotypes may be manifested

72 Student Discipline Changes For Maryland Schools Two types of unlawful discrimination are targeted in the DCL, the first is if the student is subject to different treatment based upon race The second type is when discipline is administered in an evenhanded manner; but effects minority students in disproportionate numbers

73 Student Discipline Changes For Maryland Schools The letter provides multiple examples of situations that are indicative of Civil Rights Act violations including the provision of different penalties for a minority student cursing out a teacher and disrupting a class and for a majority student exhibiting a public display of affection on the school bus, provided that both are in the same Code of Conduct level

74 Student Discipline Changes For Maryland Schools The following may be considered in any such investigation: written policies; unwritten disciplinary practices; discipline referral forms; disaggregated school discipline data by subgroup and offense; and interviews with students and others

75 Student Discipline Changes For Maryland Schools An Appendix to the DCL calls for the availability of psychological testing and services for referred students It also calls for schools to provide sufficient school based counselors, social workers, nurses, psychologists, and other mental health providers

76 Student Discipline Changes For Maryland Schools The DCL Appendix likewise suggests seven separate extensive categories of training and professional development for all school personnel, including teachers, administrators, support personnel, school resource officers, and even school volunteers

77 Student Discipline Changes For Maryland Schools The Appendix also calls for schools to specifically train SROs in bias-free policing, implicit bias and cultural competence, age appropriate responses, restorative justice techniques, conflict resolution, and privacy issues

78 Student Discipline Changes For Maryland Schools Finally the Appendix requests the collection of nine broad categories of data, much of it new, and directs the monitoring and self-evaluation of the data collected for the purpose of taking responsive action to eliminate any discrimination that is discovered

79 Student Discipline Changes For Maryland Schools Also on January 8, 2014 the DOE separately issued a 36 page Guiding Principles document that likewise calls for school-based mental health professionals, extensive professional development and training opportunities, and extensive new data collection with no funding sources identified

80 Student Discipline Changes For Maryland Schools The Guiding Principles document is divided into three sections on Climate and Prevention; Clear, Appropriate, and Consistent Expectations and Consequences; and Equity and Continuous Improvement Each section contains detailed Action Steps and Checklists for schools to use

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