Changes to the expulsion/suspension rules applicable to all public school students

Question: I understand that last August the State Legislature made some changes to the expulsion/suspension rules that are applicable to all public school students.

Yes they did just in time for the 2017-2018 school year. Prior to that Michigan had one of the most restrictive laws in the country regarding the expulsion and suspension of students. These “zero tolerance” laws were patterned on a federal law that was designed to keep guns off school grounds. However, the state expanded their version of these laws to require the removal of students who not only possessed a “dangerous weapons, committed arson, or engage in criminal sexual conduct (Gun Free Schools Act, 1994; Michigan Compiled Laws under MCL 380.1311), make bomb threats or engage in verbal assault (MCL 380.1311a), and/or commit physical assault against another student or staff person. (MCL 380.1310, 380.1311, 380.1311a, 380.1312), As these laws gave school administrators and Boards of Education no discretion in expelling a student were the facts supported a claim of a violation of these laws, many students found themselves removed from all public schools for at least 180 school days (one school year). As mitigating measures could not be considered during the expulsion hearing it was very rare that time of removal would be lowered. While a student’s parent (if under 18) could apply for reinstatement after 150 days of suspension, rarely were these requests granted. As a result the only way a student’s education could continue was in one of the few alternative schools in the state or a private school.

The lack of discretion, the harshness of the penalty (which essentially ended the student’s public school career) and the disparate impact of students of color were of great concern to many student advocates, parents and educators. In time the State Board of Education recognized that these zero tolerance policies were ineffective, and passed a resolution that stated in part:

Researchers have found no evidence that zero tolerance policies make schools safer or improve student behavior. In fact studies suggest that the overuse of suspensions and expulsions may actually increase the likelihood of later criminal misconduct. Moreover, students subject to suspension and expulsion are isolated from learning environments.

Thereafter in late 2016 the State School Board revised the “zero-tolerance” sections of the State School Code (except for the possession of a firearm) to return discretion to the school boards and administration in disciplining students. More than just return discretion, the revisions mandated certain factors be considered in deciding what level of discipline is appropriate. Specifically, the authority handling the disciple under section 1310, 1311(1), 1311(2), or 1311a of the School Code must consider and
document their consideration of the following factors:

  • (a) The pupil’s age.
  • (b) The pupil’s disciplinary history.
  • (c) Whether the pupil is a student with a disability.
  • (d) The seriousness of the violation or behavior committed by the pupil.
  • (e) Whether the violation or behavior committed by the pupil threatened the safety of any pupil or staff member.
  • (f) Whether restorative practices will be used to address the violation or behavior committed by the pupil.
  • (g) Whether a lesser intervention would properly address the violation or behavior
    committed by the pupil.

Of significance is that in exercising this discretion there is a rebuttable presumption that a suspension or expulsion is not justified unless it can be shown that each factor was considered and not sufficient to mitigate the discipline. The end result is that suspension or expulsion should be the last resort rather than the first. Additionally, the mandate that the recognized principals of restorative justice, which include such practices as conflict resolution and peer mediation, should be used which will shift the focus from discipline and punishment to repairing relationships. Finally, as to special education student (IDEA) and 504 student )504 Plan) that are subject to a suspension (or accumulation of suspensions in the same school year) that will total more than 10 school days, it continues to be the requirement that before Day 11 out-of-school a Manifestation Determination Review must be held. The MDR process requires a team of persons with knowledge (teachers, services providers, parents, etc.) regarding the student and their behaviors meet to determine if the behavior was: (1) caused by, or had a direct and substantial relationship to, the child’s disability; or (2) Whether the conduct in question was the direct result of the school’s failure to implement the IEP. See 34 CFR §300.530(e). If the answer to either question is YES, then the expulsion must be halted, the student returned to the IEP defined placement and revisions to the IEP implemented to address the identified needs. The latter usually also involves the completion of a Functional Behavior Assessment,
followed by revisions (or creation) of a Positive Behavior Plan to supplement the IEP.

– John F. Brower, JD