And who is going to pay for it? The State’s new draft guidelines for educating expelled students

by Pullman & Comley - School Law

Pullman & Comley - School Law

In 2016, Connecticut’s General Assembly passed Public Act 16-147: AN ACT CONCERNING THE RECOMMENDATIONS OF THE JUVENILE JUSTICE POLICY AND OVERSIGHT COMMITTEE.  This Act made several changes to school discipline laws which were to take effect on August 15, 2017.  Most dramatically, the Act significantly increased the amount of instruction to be delivered to expelled students. Generally, school districts have provided an “alternative educational opportunity” to eligible expelled students consistent with state regulations governing “homebound and hospitalization” instruction; as such, many districts have provided education to expelled students via tutoring — either in the home or a public setting — consisting of one hour per day, or five hours per week, to students in kindergarten through grade six and two hours per day, or ten hours per week, to students in grades seven through twelve.  Public Act 16-147, however, had the effect of requiring schools to offer five hours per day of schooling for all expelled students.

The Act also would require the “alternative educational opportunity” for expelled students to be equivalent to an “alternative education,” which by law is a school or program maintained and operated by a school district that is offered to students in a “nontraditional setting” and addresses their social, emotional, behavioral, and academic needs.  Accordingly, an education program for expelled students would have to contain all of the programmatic requirements of “alternative education” schools and programs (as opposed to merely consisting of homebound tutoring).  While some school districts already offer “alternative education,” many others do not.   It is self-evident that increasing the amount of hours of instruction for expelled students (and establishing new alternative education programs) would cause a significant increase in expenses for local and regional school districts.   However, there appeared to be no consideration of the fiscal impact for school districts from the increased cost of providing educational programs for expelled students.

Perhaps understanding that it is grossly unfair to impose a potentially costly new unfunded mandate upon school districts at the same time that it would be cutting their aid, the legislature this spring passed PUBLIC ACT 17-220: AN ACT CONCERNING EDUCATION MANDATE RELIEF.  Among other things, this Act provided that an alternative educational opportunity for expelled students may be either a) an “alternative education” school/program, if provided by the district, or b) an alternative education opportunity consistent with standards that were to be developed by the State Board of Education [“SBE”] by August 15, 2017. According to Public Act 17-220, these standards for the provision of an adequate alternative educational opportunity for expelled students were to at least include the kind of instruction and number of hours to be provided to expelled students.

What has happened? 

First, the SBE missed the statutory deadline for issuing these standards for educating expelled students, leaving school districts in the lurch.  In fact, the SBE’s “Legislative and Policy Development Committee” just issued its “draft” of these standards.   The standards defy the very title of the recently enacted legislation in that they do not in any cognizable way reduce the mandate imposed upon local and regional school districts by Public Act 16-147.  The Committee even sidestepped the mandate that the standards set forth the number of hours of instruction to be provided to expelled students; indeed, a word search of the document did not locate the word “hours.”  Instead, the draft document generally republishes the standards that exist for “alternative education” schools and programs, and thus has the effect of a) locking in the five hour per day mandate, and b) generally requiring that the expelled student be educated in such alternative education schools and programs.

The draft standards provide that the State expects that expelled students receive such alternative education, except in “rare cases in which placement in such a setting would not be suitable or in which such a setting may not be available.”  It is questionable whether a small school district could simply argue that since it does not have such a program, it is relieved of the obligation of offering such a program; more likely, the small district may now be expected to contract with another entity to provide these services.  The State further states its expectations for educational programs for expelled students “are unlikely to be satisfied by assignment to homebound instruction.” The draft standards also impose other significant programmatic mandates, which my colleague Melinda Kaufmann will discuss in a subsequent post.

Finally, the Committee covered territory beyond its charge – such as programs for students who have already been expelled — by also delving into the actual expulsion hearing process and mandating procedures that are beyond any statutory requirements. The draft standards appear to dictate to school districts what their expulsion policies must contain in terms of decision making processes and other mandates not contained in any statute. For example, they state that school board policies must explicitly include guidelines regarding the appropriate length of expulsions as well as a right to early re-admission from an expulsion that is possibly beyond what is provided in the statutes.  Especially alarming is the statement that schools should provide notice to students and their parents prior to expulsion hearings of their right against self-incrimination.   Simply put, such a right does not exist with respect to expulsion hearings and any other non-criminal proceedings.

What can you do? 

These standards are in draft form, and will be subject to the approval of the full State Board of Education. The next meeting of the SBE is October 4, 2017; it is not sure if the draft standards will be discussed or acted upon at this meeting. Nevertheless, you may wish to let your voices be heard prior to or at this meeting.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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