Maryland Bar Bulletin
Publications : Bar Bulletin : November 2013

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In the early years of zero tolerance, merely possessing a cell phone on a school campus resulted in immediate student suspension.

Picture this: You’re sitting down with a new client on what you thought to be a routine legal matter. All of a sudden you hear the client is angry and totally preoccupied because their kid has just been kicked out of school for reasons they cannot fully explain. Worse yet, you learn that an expulsion conference convenes in less than a week, and they need your legal advice. You think, “Whoa. I’m not a juvenile law attorney or an education law practitioner.”

Read on. Relief is on its way.

For those familiar with the Maryland school systems’ traditional “zero tolerance” approach to school discipline, bitter feelings on the client’s part are easy to understand. Our office has published no less than five pieces on the repeal of zero tolerance and the rather tortured procedural journey this widely repudiated practice has seen in Maryland; and those few pieces are a drop in the bucket compared to the little-noticed but frequent coverage by traditional media.

Within Maryland’s public schools and those of nearly all states since the Columbine school shootings, zero tolerance has been the only solution. Far too many school-age children have paid a heavy price under this heavy-handed policy. School administrators have too often issued suspensions and expulsions for a wide range of student misconduct.

Adding insult to injury, suspended and expelled students often go without educational support. Even when support is provided, those services tend to diminish as the out-of-school period drags on.

However, thanks to the work of the State Board of Education, the Maryland State Department of Education (MSDE) is at long last poised to implement significant changes to statewide regulation policies on school discipline. These changes will likely deal a fatal blow to zero tolerance.

The new regulations should also provide ammunition for practitioners who handle school discipline matters – whether singularly or in conjunction with juvenile and family law cases. The regulations were first proposed last year but were withdrawn for further study following pushbacks by influential stakeholders. The revised version of the proposal was circulated in the October 4, 2013 issue of the Maryland Register.

Specifically, the prospective changes will alter the language of COMAR § 13A.08.01.11, which governs school discipline in significant ways. These include:

  • Articulating a philosophy of student discipline emphasizing administrator discretion and clarifying that expulsion is an option of last resort;
  • Limiting expulsions and suspensions of more than 10 days to cases where the superintendent determines that a student’s presence would pose “an imminent threat of serious harm to other students or staff”;
  • Establishing that any student subject to suspension of more than 10 days or to expulsion will return to school if a conference cannot be completed within 10 days of the superintendent’s decision to suspend or expel, absent the superintendent’s determination of imminent threat of serious harm;
  • Mandating that the school system produce a list of witnesses and a copy of all documents the school system will present at any appeal hearing five days prior to the hearing;
  • Requiring schools to provide suspended or expelled students with daily work in each subject, to be reviewed by the teachers on a weekly basis;
  • Creating a school-specific network of liaisons who will communicate with parents and suspended or expelled students on a weekly basis; and
  • Directing the development of a method to analyze whether school discipline processes at individual schools are disproportionately impacting minority students or special education students.

These changes, once implemented, will alleviate or correct some of the most pervasive problems of school discipline within Maryland. In particular, they will address the adverse impact that disciplinary measures have had on suspended and expelled students, many or most of whom are already struggling academically.

By emphasizing disciplinary discretion, and limiting the authority to impose extended suspensions or expulsions to cases where a student poses an ongoing and serious threat to others, MSDE is driving a stake through the heart of zero tolerance. That policy, whose roots stretch back to the pre-Columbine era, into the so-called “war on drugs” of the 1980s and early 1990s, was bolstered by the spate of recent school shootings. Since its inception, the policy has produced often absurdly harsh results.

For example, in the early years of zero tolerance, merely possessing a cell phone on a school campus resulted in immediate student suspension. As time passed, the application of zero tolerance expanded. So did its deleterious effects.

After the tragedy in Newtown, Conn., a young Maryland student was suspended for biting his Pop-Tart into the shape of a gun. Another student was suspended for playing with a bubble toy that no reasonable person could have viewed as a threat, simply because the toy bore a tenuous resemblance to a weapon.

Worst of all, zero tolerance policies have played a role in at least one death and several close calls. In 2009, a Fairfax County, Va., teenager committed suicide after being suspended for possession of marijuana. The suspension imposed under the school district’s zero tolerance policy was very lengthy and, ultimately, gave rise to another teen suicide.

The proposed changes in our public school student discipline regulations are both welcome and long overdue. Under the current timeline, Maryland schools will be required to adapt their policies before the start of the 2014-2015 school year.

The Maryland State Board of Education will take final action on the proposal at a public meeting. The meeting will take place on Dec. 10, 2013 at 200 West Baltimore Street, Baltimore, Maryland 21201.

Patrick J. Hoover is managing attorney and Bryan Utter an associate attorney at HooverLaw, LLC, in Rockville, Maryland. The firm’s practice concentrates on juvenile, education, and special education law.

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Publications : Bar Bulletin : November 2013

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