School Suspension:
Your Legal Rights & How to Appeal
This document was prepared in August 2002 by the
LANC-Greensboro Office and (1) explains the seriousness of school suspension/expulsion;
and (2) gives the student and his/her parents tips on how to proceed if he/she
has been suspended more than 10 days.
CONTENTS:
4 Prevention
4 SUSPENSION LAW
- When a student
may be suspended
-
Harsher penalties for serious violent behavior
-
The school must offer procedural protections
-
Suspension
protections of children with "special needs"
4 APPEALING A SUSPENSION
- Start by
meeting with the principal
-
Consider meeting with the superintendent
-
Defenses you might
raise in a suspension hearing
-
Should you bother
appeal a suspension decision?
-
Preparing for a superintendent's hearing
- The
superintendent's hearing
- The school board
hearing
- Appealing to the
Courts
4 Miscellaneous
- What if the
student is penalized for excessive absences?
- Important
telephone numbers
- Legal Aid of North Carolina
offices
PREVENTION
To prevent suspensions, parents should review the Student Handbook with their
children at the start of each school year. Explain how easy it is to get suspended, and how long-term
suspension could delay graduation. Tell your child to ignore student
insults, try to walk away from fights and treat teachers with respect.
SUSPENSION LAW
When a student may be suspended...
A school is authorized to suspend or expel a student only if he/she willfully
violates a rule in the school's Student Handbook. The punishment given may
not exceed the punishment listed for that offense. The misconduct must
occur on school property, or during a school-sponsored event. A principal
may suspend a child for 10 days or less, and may recommend to the superintendent
a longer suspension. FS115C-391 (b) and (c).
Harsher penalties for serious violent behavior...
A superintendent may suspend or expel a student for longer periods (sometimes
even beyond the end of the school year) if any of the following occurs:
(1) student 14 years old or older behaves so badly that
his presence in the school constitutes a clear threat to the safety of other students or employees; or
(2) student 13 years old or older physically
assaults and seriously injures a student or
teacher, or physically assaults a teacher (or a student, if
school personnel witnessed it); or
(3) student brings a weapon to school or to a
school-sponsored activity off campus; or
(4) student makes a false report that an explosive device is in
a school.
IMPORTANT! These rules for serious misconduct are based on complicated
statutory provisions. FS115C-391(d)(d-1) to (d-4). If your child is
being suspended for serious violent conduct, consult an attorney, even if he admits he/she broke the rule.
The school must offer procedural protections...
A student is entitled to the following minimum due process protections if
he/she is suspended:
(1) Before being suspended, the student must be given
oral notice of the allegations against him/her. If he/she denies the
charges, he/she must be told what evidence there is against him/her, and must be
given a change to explain his/her version.
(2) After suspension, the school must send the parent written
notice of the misconduct and the punishment sought. The notice also must include
notice of the student's right to a hearing
before an impartial hearing officer or panel. Most schools offer a
hearing before a hearing officer or panel selected by the superintendent.
An appeal to the school board must be offered for suspensions over 10 days. GS
115C-391(e).
Suspension protections of children with "special needs"...
A handicapped student has special suspension protections if: (1) he/she has
been determined to have "special needs"; and (2) he/she has been given an
"Individualized Education Plan" ("IEP"). First, if the school
recommends his/her suspension for a period that totals more than 10 days in a
school year, the school must hold a "manifestation determination hearing" within
10 days, to determine whether his/her handicap caused the misconduct. If
it is determined that the handicap did cause the misconduct, the child may not be suspended from the public
school system. The "manifestation hearing" decision may be appealed.
Second, if the school does suspend the "special needs" child for more than
10 days, because the hearing decision as that the handicap did not
cause the misconduct, then the school still must provide him/her with an
education outside that school. (NOTE: These rules will vary if a weapon or drugs
are involved.) 20 USC 1415(k)(1).
APPEALING A DECISION
Start by meeting with the principal...
Normally it is wise to meet informally with the principal (before the deadline
for requesting an appeal). your chances of preventing a suspension at this
informal meeting are greater than at a formal appeal hearing. Don't bring
an attorney. Bring a teacher, minister or other favorable witness.
Try to work with the principal to find a face-saving resolution (e.g., move the
student to another classroom or school).
Consider meeting with the superintendent...
If you meeting with principal was unsuccessful, you may be able to meet informally with the superintendent or his/her assistant before seeking a
formal Superintendent Hearing. This will improve your chances of stopping
the suspension. Try to work together to see if there is a face-saving
solution to the problem without suspension (e.g., transfer to another school).
Offer several possible solutions. If the meeting isn't successful, you may
request a formal Superintendent Hearing.
Defenses you might raise in a suspension hearing...
First, the school may not suspend/expel a student unless it can prove
that the student willfully committed the alleged offense (however, the student's
admission to school officials that he/she did it is sufficient). Second,
the school's Student Handbook must have provided that the misconduct was grounds
for suspension. Third, the punishment handed down may not exceed
the punishment for that offense in the Student Handbook.
Should you bother appealing a suspension decision?...
If you meet with the principal without success, you must decide whether to
appeal to the superintendent and/or school board. Factors in favor of appealing a suspension include:
(1) you have a defense listed above; (2) the punishment is very severe in
relation to the offense (usually suspension of 10 days or less are not worth
appealing); and (3) the school doesn't offer to place your child in an
alternative school during his/her suspension.
Preparing for a Superintendent's Hearing...
If you decide to appeal, request a Superintendent's
Hearing
within the deadline for requesting such an appeal.
You may want to seek the services of a legal aid or private attorney. To
prepare for the hearing, look at the student's
school file. Have your child practice answering questions that he might be
asked at the hearing. Recruit credible adults (a teacher, minister, etc.)
to testify at the hearing as to the student's good character.
The Superintendent's Hearing...
Warn your child that the hearing officer has great discretion and should be
treated respectfully. Insist that your child wear his best clothes and act
politely to everyone at the hearing. He/She should apologize to school
personnel for any improper conduct. It would help if your child says that
he/she learned from his/her mistake, and won't repeat the misconduct.
Raise favorable facts such as good attendance, extracurricular activities and
good grades.
The School Board Hearing...
If you lose the Superintendent's Hearing, you can appeal to the School Board a
suspension of over 10 days. Prepare for (and act at) the hearing using the
techniques listing in the preceding sections on the Superintendent's Hearing.
If is difficult to persuade a school board that the principal and superintendent
acted improperly, or made a mistake in deciding the facts. So instead of
disputing the facts, consider making an emotional appeal and plead for a shorter
suspension.
Appealing to the Courts...
If the school board affirms the suspension/expulsion, you have the right to
appeal that decision to the local Superior Court. However, litigation
usually is a waste of time. Courts rarely reverse school board decisions
unless there was a serious error of law.
MISCELLANEOUS
What if the student is penalized for excessive absences?...
Some schools set a maximum number of days for all absences (which includes
excused absences). If the maximum is exceeded, the student's grades are
reduced (or he/she won't be promoted), unless he/she makes up the absences.
While these rules may be illegal, you will be wise to do everything possible to
make up the missed days. Contact a lawyer if your child is penalized under
such a rule.
Important telephone numbers...
Superintendent's Offices:
Asheboro City Schools...625-5104
Davidson County Schools...249-8181
Guilford County Schools...370-8336
Lexington City Schools...242-1527
Montgomery County Schools...576-6511
Randolph County Schools...318-6090
Rockingham County Schools...627-2627
Rowan-Salisbury Schools...636-7500
Legal Aid of North Carolina Offices:
Legal Aid of North Carolina - Greensboro Office...336-272-0148
NOTE: If your school system or Legal Aid of North Carolina office is not listed
above, you can get the telephone number by calling the "Care Line" at:
1-800-662-7030; call 8:00 AM to 5:00 PM; TIP: call before 9:00 AM.
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to an attorney regarding your particular situation. Please see the
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www.legalaidnc.org,
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are for information and educational purposes only and do not
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Legal Aid of North Carolina is a statewide, nonprofit law firm that
provides free legal services in civil matters to low-income people in
order to ensure equal access to justice and to remove legal barriers
to economic opportunity.