Student Discipline The Office of Superintendent of Public Instruction (OSPI) is proposing substantial changes to Chapter 392-400 of the Washington Administrative Code (WAC). This chapter provides rules for how a public school district may administer student discipline, including notice for parents and due process protections for students who are suspended or expelled. This chart details the substantive revisions in the proposed rules that may impact how school districts administer student discipline. While OSPI intends for this chart to support districts, schools, advocates, and families in understanding the revisions in the proposed rules, it should not be interpreted as a comprehensive statement of the proposed rules. The full text of proposed Chapter 392-400 WAC, and information regarding public comments on the proposed rules, is available at OSPI s Student Discipline Rules website. WAC Section All WAC 392-400-010 Purpose. WAC 392-400-200 The proposed rules revise and reorganize the entire chapter for clarity and readability. Due to this reorganization, all sections of the proposed rules are new. Throughout the chapter, the revised rules encourage schools to use best practices to address behavior without removing students from the classroom, and increase opportunities for families to participate in the development of discipline policies and in resolving discipline-related issues. The revised rules further clarify that oral and written communications with parents must be in a language the parent understands, as required under Title VI of the Civil Rights Act of 1964. The revisions in this section clarify the purpose and intent of this chapter, which is to ensure school districts in Washington: Provide due process to students; Implement culturally responsive discipline policies and procedures that provide opportunity for all students to achieve personal and academic success; Engage students, parents, families, and the community in decisions related to the development and implementation of discipline policies and procedures; Improve fairness and equity in the administration of discipline; Administer discipline in ways that keep students in the classroom to the maximum extent possible; Provide educational services students need to complete their education without disruption; and Facilitate collaboration between school personnel, students, and families to ensure successful reentry into the classroom following a suspension or expulsion. Office of Superintendent of Public Instruction September 2017 1
WAC 392-400-015 Authority. WAC 392-400-020 Application. WAC 392-400-200 WAC 392-400-205 Definitions. WAC 392-400-205 This new section clarifies the authority for this chapter RCW 28A.600.015 and 28A.600.020 which requires the Office of Superintendent of Public Instruction to establish rules that prescribe the substantive and procedural due process rights of students served by any program or activity conducted by, or on behalf of, school districts. This new section incorporates standards in the current WAC 392-400-200 regarding the application of these rules. This section also clarifies that this chapter must be construed in a manner consistent with the following laws: RCW 28A.600.010 through 28A.600.022 and RCW 28A.320.211, regarding the administration of student discipline; RCW 28A.300.042, regarding the collection, reporting, and disaggregation of student-level discipline data; Chapter 392-190 WAC, prohibiting unlawful discrimination in Washington public schools, including the requirement under WAC 392-190-048 that school districts annually review disaggregated discipline data to identify and address disproportionality in the administration of discipline; WAC 392-172A-05140 through 392-172A-05175, regarding the discipline of students with disabilities under the Individuals with Disabilities Education Act; RCW 28A.165.035, regarding the state menu of best practices and strategies for behavior; and RCW 28A.415.410 and 28A.415.420, regarding training to support school district personnel in implementing discipline policies and procedures and gaining knowledge and skills in cultural competence. Definitions for this chapter are revised for clarity. Substantial revisions include the following: In the current rules, discipline and corrective action are used interchangeably in reference to corrective actions other than emergency removals, suspensions, and expulsions. In the proposed rules, discipline means any action taken by a school district in response to behavioral violations. In-school suspension means a suspension in which a student is excluded from the student s regular educational setting but remains in the student s current school placement for up to ten consecutive school days. While the proposed rules remove the definition of discretionary discipline for readability and comprehension, the statutory provision in RCW 28A.600.015 is referenced throughout the rules where applicable. The proposed rules also add or revise the following terms for clarity and readability: Behavioral violation Office of Superintendent of Public Instruction September 2017 2
WAC 392-400-110 Discipline policies and procedures Development, review, and distribution. WAC 392-400-225 WAC 392-400-230 and WAC 392-400- 240 Classroom exclusion Disruption of the educational process Length of an academic term Other forms of discipline Parent School board Consistent with RCW 28A.345.090, revisions to this section provide that a school district s discipline policies and procedures must be consistent with the Washington State School Directors Association model discipline policy. The section also clarifies that the policy and procedure must: Provide for early involvement of parents in efforts to support students in meeting behavioral expectations and in the resolution of behavioral violations; Identify other forms of discipline that school personnel should administer before or instead of removing the student from the classroom; Identify school personnel with authority to administer discipline. This would replace current WAC 392-400-230, which specifically identifies district personnel authorized to impose discipline, suspension, expulsion, or emergency removal; Establish appeal and review procedures for resolving disagreements related to the administration of suspensions, expulsions, and emergency expulsions; Establish a grievance procedure for disagreements related to the administration of other forms of discipline. This replaces current WAC 392-400-240, which prescribes a grievance procedure for forms of discipline other that suspension, expulsion, or emergency expulsion; Describe the types of educational services the school district offers to students during a suspension or expulsion and the procedures to be followed; and Provide for reengagement meetings and plans, and for readmission of students who have been suspended or expelled. Although the structure and language regarding the development, review, and distribution of the rules has been revised for clarity, the requirements generally remain the same. However, the revised rule clarifies that a school district must use disaggregated data collected under RCW 28A.300.042 in the development and review of the policies and procedures, as required under RCW 28A.320.211. The rules also provide that district employees and contractors must be knowledgeable of the discipline policies and procedures. Office of Superintendent of Public Instruction September 2017 3
WAC 392-400-330 Classroom exclusions Conditions and limitations. This new section provides conditions and limitations for when a teacher may exclude a student from the classroom for behavioral violations, consistent with RCW 28A.600.020. It incorporates the existing rules regarding emergency removals from a class, subject, or activity, which is currently in WAC 392-400-230(4) and 392-400-290. WAC 392-400-230 and 392-400-290 WAC 392-400-335 Classroom exclusion Notice and procedure. This new section clarifies the procedural requirements when a teacher excludes a student from the classroom under WAC 392-400-330. This section incorporates the existing procedural requirements for emergency removals from a class, subject, or activity, which is in current WAC 392-400-290. WAC 392-400-290 WAC 392-400-430 General conditions and limitations. WAC 392-400-245, 392-400-260, and 392-400-275 This new section expands on the general conditions and limitations for administering suspensions and expulsions that are currently in WAC 392-400-245, 392-400-260, and 392-400-275. New conditions and limitations include the following: Parent Involvement. Consistent with RCW 28A.600.020, a school district must provide for early involvement of parents in efforts to support students in meeting behavioral expectations and must make every reasonable attempt to involve the student and parents in the resolution of behavioral violations. Educational Services. As required under RCW 28A.600.015, a school district may not suspend the provision of educational services to a student in response to behavioral violations. Additional rules for the provision of educational services are found in proposed WAC 392-400-610. Reentry. Consistent with RCW 28A.600.020(6) and 28A.600.022(a), after suspending or expelling a student, a school district must make reasonable efforts to return a student to the student s regular educational setting as soon as possible and allow the student to petition for readmission at any time. Absences and tardiness. A school district may not suspend or expel a student from school for absences or tardiness. WAC 392-400-435 This revised section clarifies additional conditions and limitations specific to administering short-term suspensions and in-school suspensions. While most Office of Superintendent of Public Instruction September 2017 4
Short-term and inschool suspensions Additional conditions and limitations. WAC 392-400-245 WAC 392-400-440 Long-term suspensions Additional conditions and limitations. WAC 392-400-260 WAC 392-400-205 of the conditions and limitations specific to short-term suspensions have not changed substantially, the revised rules no longer include provisions for a school district to adopt rules providing for the immediate resort to shortterm suspensions in cases involving exceptional misconduct. This section also clarifies conditions for in-school suspensions. Specifically, school personnel must be in the same location as the student to provide direct supervision to the student during an in-school suspension, and they must be accessible to offer support to keep the student current with assignments and course work. This revised section clarifies additional conditions and limitations specific to administering long-term suspensions. While most of the conditions and limitations specific to long-term suspensions have not changed substantially, the revised rule no longer includes provisions for a school district to adopt rules providing for the immediate resort to long-term suspensions in cases involving exceptional misconduct. Instead, the revised rule clarifies that a school district may only administer a long-term suspension: For behavioral violations under RCW 28A.600.015(6) (serious behavior violations considered nondiscretionary discipline ); and Only after a district has determined that, if the student returned to school before completing a long-term suspension, the student would pose an imminent danger to students or school personnel, or the student would pose an imminent threat of material and substantial disruption of the educational process. This section incorporates the existing requirements under WAC 392-400- 205(4) and 392-400-260 that: Require a school district to consider other forms of discipline before administering a long-term suspension; Limit a long-term suspension to the length of an academic term, which may not extend beyond the school year in which the behavioral violation occurred; and Limit the use of long-term suspensions for students in kindergarten through fourth grade. WAC 392-400-445 Expulsions Additional conditions and limitations. This revised section clarifies additional conditions and limitations specific to administering expulsions. The revised rule clarifies that a school district may only administer an expulsion: Office of Superintendent of Public Instruction September 2017 5
WAC 392-400-275 WAC 392-400-205 For behavioral violations under RCW 28A.600.015(6) (serious behavior violations considered nondiscretionary discipline ); and Only after a district has determined that if the student returned to school before completing an expulsion, the student would pose an imminent danger to students or school personnel. This section incorporates the existing requirements in WAC 392-400-275 and 392-400-205(6) that: Require a school district to consider other forms of discipline before administering an expulsion, and Limit an expulsion to the length of an academic term, unless the school petitions the district superintendent for an extension. Under the revised rule, a school district may not administer an expulsion for any student in kindergarten through fourth grade, except for firearm violations. WAC 392-400-450 Initial hearing with student. WAC 392-400-250 The current rules provide for different initial hearing and notice procedures for short-term suspensions (WAC 392-400-250), long-term suspensions (WAC 392-400-265), and expulsions (WAC 392-400-280). The revised rule aligns these initial due process procedures for all suspensions and expulsions. Before administering any suspension or expulsion, the principal or designee must conduct an informal initial hearing with the student for the purpose of hearing the student s perspective. During the initial hearing, the student may contact the student s parents. Following the initial hearing, the principal or designee must inform the student of the decision regarding the behavioral violation, including the date on which any suspension or expulsion will begin and end. WAC 392-400-455 Notice to student and parents. WAC 392-400-250, 392-400-265, and WAC 392-400-280 WAC 392-400-460 Optional The current rules provide different notice requirements for short-term suspensions (WAC 392-400-250), long-term suspensions (WAC 392-400-265), and expulsions (WAC 392-400-280). The revised rule aligns these notice requirements for all suspensions and expulsions. Under this new section, a school district must attempt to notify a student s parents before administering any suspension or expulsion. The new section requires the school district to provide written notice of the suspension or expulsion to the student and parents no later than one school business day following the initial hearing with the student under WAC 392-400-450 and describes what the written notice must include. For short-term suspensions, the current WAC 392-400-255 provides students and parents the right to an informal conference with the principal or designee to resolve any grievance. The current rules do not provide students who were long-term suspended or expelled a similar informal option. Office of Superintendent of Public Instruction September 2017 6
conference with principal. WAC 392-400-255 WAC 392-400-465 Appeal. WAC 394-400-255, 392-400-270, 392-400-285, and 392-400-310 Under this proposed new section, any student who is suspended or expelled (or the student s parents) may request an informal conference with the principal or designee if they disagree with the school s decision to suspend or expel the student. This conference with the principal or designee is optional. A student or parents may appeal the suspension or expulsion under WAC 392-400-465 whether or not they first meet with the principal or designee. For short-term suspensions, if a student or parent is still aggrieved after meeting with the principal, the current WAC 392-400-255 provides the right to present a written or oral grievance to the school district superintendent or designee. The current WAC 392-400-465 and 392-400-285 provide for separate prehearing and hearing processes for disagreements regarding long-term suspensions and expulsions. Under this new section, the procedures for appealing any suspension or expulsion are more closely aligned. However, the proposed rule provides additional due process for long-term suspension and expulsion appeals. Time limit. Under this new section, the time limit to request an appeal for any suspension or expulsion must be no less than five school business days from the date the school district provides written notice. This extends the time limit to appeal from three school business days under the current rules for long-term suspensions and expulsions under WAC 392-400-270 and 392-400-285. Short-term suspensions and in-school suspensions. While the appeal process for short-term suspensions is not substantially different from the process provided in the current rules under WAC 392-400-255, this section clarifies that the appeal process also applies to in-school suspensions. This section also requires the superintendent or designee to deliver a written appeal decision to the student and parents within two school business days after receiving the appeal and describes what the written decision must include. Long-term suspensions and expulsions. The appeal process for long-term suspensions and expulsions has not changed substantially. Much of the prehearing and hearing structure and language from the current WAC 392-400-270, 392-400-285, and 392-400-310 are incorporated and revised for clarity. New or revised provisions regarding long-term suspension and expulsion appeals include: A requirement to provide written notice within one school business day regarding the appeal hearing and the student s and parents rights; Office of Superintendent of Public Instruction September 2017 7
The right to review, upon request, the student s educational record and inspect any documentary or physical evidence and a list of witnesses, which must be provided no later than the end of the school business day before the appeal hearing; The authority of the school board to designate the superintendent, a hearing officer, or discipline appeal council to hear appeals; and A time limit of three school business days after the appeal hearing to issue a written decision. Pending appeal. Consistent with RCW 28A.600.015(1), the proposed rule provides that a suspension or expulsion may only continue to be imposed temporarily for up to ten consecutive school days or until the appeal is decided, whichever is earlier, from the initial hearing with the student under proposed WAC 392-400-450. WAC 392-400-470 Review and reconsideration. WAC 392-400-255, 392-400-310, and 392-400-315 For short-term suspensions, when a student or parent is still aggrieved after meeting with the principal and presenting a grievance to the superintendent, the current WAC 392-400-255 provides the right to present a grievance to the school board or discipline appeal council. For long-term suspensions and expulsions, the current WAC 392-400-310 and 392-400-315 provide students and parents the right to appeal hearing decisions to the school board or discipline appeal council. The school board or appeal council decide the appeal by either (1) reviewing the hearing record and materials submitted, (2) meeting to hear further arguments, or (3) hearing the case de novo. (Under the current rules, the right to appeal does not apply if the school board or appeal council presided over the hearing under WAC 392-400-270, regarding long-term suspensions, or WAC 392-400-285, regarding expulsions.) Under this new section, these procedures are aligned. Unlike the current rules, however, this new section does not provide a right to a de novo appeal. Instead, the new section provides for a process for the student or parents to request the school board or discipline appeal council to review and reconsider the district s appeal decision. Requesting a review. The time limit to request a review of any suspension or expulsion appeal decision must be no less than ten school business days from the date the school district provides the written appeal decision. Review procedure. In reviewing the school district s decision, the school board or discipline appeal council must consider the evidence related to the behavioral violation, any records from the appeal, relevant state law, and the school district s discipline policy. The school board or discipline appeal council may request to meet with the student or parents, the principal, witnesses, or school personnel to hear further arguments and gather additional information. Office of Superintendent of Public Instruction September 2017 8
Review decision. This section requires the school board or discipline appeal council to provide a written decision to the student and parents within ten school business days after receiving the request for review and describes what the written decision must include. WAC 392-400-475 Discipline appeal council. WAC 392-400-220 WAC 392-400-480 Petition to extend expulsion. WAC 392-400-140 WAC 392-400-510 Emergency Conditions and limitations. WAC 392-400-295 WAC 392-400-515 Emergency Notice to student and parents. WAC 392-400-300 While this section has been revised for clarity, the proposed rule does not substantially differ from the current WAC 392-400-220. A school board may designate a discipline appeal council to hear and decide appeals or to review and reconsider appeal decisions. The proposed rule provides that all members of the discipline appeal council must be knowledgeable about of the rules and this chapter and of the school district s discipline policies and procedures. This section provides clearer timelines, notice requirements, and procedures for how a principal or designee may petition the school district superintendent to extend a student s expulsion because of risk to public health or safety. While most of the requirements in this section remain unchanged, revisions clarify that any days a student is emergency expelled before a conversion to a suspension or expulsion apply to the total length of the suspension or expulsion. Under the proposed rule, all emergency expulsions must be reported to the district superintendent or designee within twenty-four hours after the start of the emergency expulsion. The reason the student s presence poses an immediate and continuing danger to other students or school personnel or an immediate and continuing threat of material and substantial disruption must also be reported. When a student is emergency expelled, the current WAC 392-400-300 requires the school district to provide the student s parents written notice of the emergency expulsion and opportunity for a hearing within twenty-four hours of the expulsion. If the written notice is sent by certified mail, the school district must also make reasonable attempts to notify the student and parents by phone or in person as soon as reasonably possible. Under the proposed rule, any time a school district administers an emergency expulsion, the district must attempt to notify the student s parents, as soon as reasonably possible, regarding the reason the district believes the student s presence poses an immediate and continuing danger to other students or school personnel, or an immediate and continuing threat of material and substantial disruption of the educational process. The Office of Superintendent of Public Instruction September 2017 9
WAC 392-400-520 Emergency Optional conference with principal. WAC 392-400-525 Emergency Appeal. WAC 392-400-305 school district must also provide written notice within twenty-four hours of the expulsion. Under this new section, any student who is emergency expelled, or the student s parents, may ask for an informal conference with the principal or designee if they disagree with the school s decision to emergency expel the student. This conference with the principal or designee is optional. A student or parents may appeal the emergency expulsion under proposed WAC 392-400- 525 whether or not they first confer with the principal or designee. While most of the process for appealing emergency expulsions remains unchanged, revisions to this section include: A requirement to provide written notice within one school business day regarding the appeal hearing and the student s and parents rights; The right to review, upon request, the student s educational record and inspect any documentary and physical evidence and a list of witnesses, which must be provided no later than the end of the school business day before the appeal hearing; and Authority of the school board to designate the superintendent, a hearing officer, or discipline appeal council to hear appeals. The revisions also clarify that if a student or parent disagrees with the school district s appeal decision, they may ask the school board or discipline appeal council to review and reconsider the decision under proposed WAC 392-400- 530. WAC 392-400-530 Emergency Review and reconsideration. This new section provides procedures for a school board or discipline appeal council to review and reconsider emergency expulsion appeal decisions, similar to the procedure provided for suspensions and expulsions. Requesting a review. The time limit to request a review of an emergency expulsion appeal decision must be no less than five school business days from the date the school district provides the written appeal decision. Review procedure. In reviewing the school district s decision, the school board or discipline appeal council must consider the evidence related to the events that led to the emergency expulsion, any records from the appeal, relevant state law, and the school district s discipline policy. The school board or discipline appeal council may request to meet with the student or parents, the principal, witnesses, or school personnel to hear further arguments and gather additional information. Office of Superintendent of Public Instruction September 2017 10
WAC 392-400-610 Educational services during suspension, expulsion, or emergency expulsion. Review decision. This section requires the school board or discipline appeal council to provide a written decision to the student and parents within five school business days after receiving the request for review, and describes what the written decision must include. Consistent with RCW 28A.600.015(5), 28A.600.015(8), and 28A.600.020(7), this new section clarifies a school district s responsibility to provide educational services to a student who is suspended or expelled. The section includes guidelines for ensuring educational services are comparable, equitable, and appropriate to the regular educational services the student would have received without the suspension or expulsion, consistent with RCW 28A.600.020(7). This section also includes standards regarding the minimum educational services that schools must provide, depending on the length of the student s suspension or expulsion: For exclusions up to five days, a school district must, at a minimum, provide coursework, access to school personnel who can offer support to keep the student current with coursework, and an opportunity to make up any assignments and tests missed during the exclusion. For exclusions six to ten days, school personnel must also periodically contact the student or parents to coordinate delivery and grading of coursework and communicate with the student and the student s parents and teachers about the student s academic progress. For exclusions longer than ten days, a school district must provide educational services in accordance with WAC 392-121-107, which includes options for providing alternative learning experiences. WAC 392-400-710 Student reengagement after long-term suspension or expulsion. WAC 392-400-420 As provided under RCW 28A.600.022, this revised section continues to require that, when a school district administers a long-term suspension or expulsion, the district must convene a reengagement meeting with the student and parents to discuss a plan to reengage the student. The revisions to this section provide additional considerations to ensure a student s reengagement plan is culturally sensitive, culturally responsive, and tailored to a student s individual needs. As provided in the current rules, the reengagement meeting must occur within twenty calendar days of the start of the student s long-term suspension or expulsion, but no later than five calendar days before the student returns to school. The proposed rule adds that the reengagement meeting must occur as soon as reasonably possible if the student or parents request a prompt reengagement meeting. Also, the school district must Office of Superintendent of Public Instruction September 2017 11
communicate with the student and parents to schedule the meeting time and location. The proposed rule provides that the school district must document the reengagement plan and provide a copy of the plan to the students and parents. The proposed rule also clarifies that reengagement meetings do not replace appeal hearings. WAC 392-400-805 Fundamental rights. WAC 392-400-215 WAC 392-400-810 expulsions administered by another school district. While this section is new, it does not create new requirements. This section references existing fundamental rights that school districts must not violate when administering discipline regarding nondiscrimination, constitutional rights, and due process protections including the student rights referenced in the current WAC 392-400-215. The proposed rules would repeal WAC 392-400-210 regarding student responsibilities and duties, and WAC 392-400-227 regarding school district rules defining student religious rights. These current rules simply restate existing law and are outside the scope of this chapter. This new section outlines limitations and procedures for when a school district continues to administer a suspension or expulsion administered by another school district. Under this section, a school district may not continue to administer a suspension or expulsion administered by another district except for firearm violations under proposed WAC-400-820 or if the student s presence would pose an immediate and continuing danger to other students or school personnel. If a district continues to administer a suspension or expulsion administered by another district, this section provides procedures for doing so. This section does not limit a school district from rejecting applications from nonresident students under RCW 28A.225.225. WAC 392-400-815 Behavior agreements. This new section clarifies that a school district may enter into behavior agreements with students and parents in response to behavioral violations, including agreements to reduce the length of a suspension conditioned on the participation in treatment services, agreements in lieu of suspension or expulsion, or agreements holding a suspension or expulsion in abeyance. Under the proposed rule, the duration of behavior agreements must not exceed the length of an academic term. A school district entering into behavior agreements under this section must adopt written policies and procedures authorizing such agreements. Office of Superintendent of Public Instruction September 2017 12
WAC 392-400-820 Firearm exceptions. WAC 392-400-825 Corporal punishment, restraint, and isolation. WAC 392-400-235 While this section is new, it does not create new requirements. This section incorporates the discipline requirements regarding firearms under RCW 28A.600.420, such as the requirement for a district to expel a student for at least one year if the student possessed a firearm on school premises, subject to modification by the district superintendent. While this section is new, it does not create new requirements. This section incorporates the prohibition on corporal punishment in the current WAC 392-400-235(3), which is revised for readability. This section also reiterates the restrictions on the use of restraint and isolation under RCW 28A.600.485, RCW 28A.155.210, WAC 392-172A-02105, and WAC 392-172A- 02110. OSPI provides equal access to all programs and services without discrimination based on sex, race, creed, religion, color, national origin, age, honorably discharged veteran or military status, sexual orientation, gender expression, gender identity, disability, or the use of a trained dog guide or service animal by a person with a disability. Questions and complaints of alleged discrimination should be directed to the Equity and Civil Rights Director at (360) 725-6162 or P.O. Box 47200, Olympia, WA 98504-7200. Office of Superintendent of Public Instruction September 2017 13