Legal Advocacy for Public School Students Facing Disciplinary Action

Delve into pivotal Supreme Court decisions and essential laws, gaining expert strategies and insights to champion justice for students.

1. Presented By Mark Gutman
Legal Advocacy For
Public School Students
Facing Disciplinary
Action

2. Mark Gutman
PARTNER, GUTMAN VASILIOU, LLP
Mark Gutman has dedicated his career to
fighting for the rights of students and
families. During his time practicing criminal
defense and representing clients, he
discovered his passion for education law and
fought tirelessly to ensure that every child
under his care had access to an education.
His firm, Gutman Vasiliou, LLP, focuses on
providing the best results for clients through
direct litigation and avoiding
lengthy settlement disputes.
2

3. 04 Learning Objectives 29 Permanent Record
31 Plan of Attack & Negotiation09 School Concerns
33 The Hearing10 Speech Cases
35 Special Education16 Search Cases
36 Examples18 Self Defense
42 Key Takeaways19 Right to Hearing
25 Importance
3
Table of Contents

4. 1 2 3
Understand student
rights –federally
Learn how to spot issues for
negotiation and
at the hearing
Spot appealable
issues
4
Goals for This Presentation

5. Do students have rights?
5

6. 6
Do students have rights?

7. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
”It can hardly be argued
that either students or
teachers shed their
constitutional rights to
freedom of speech or
expression at the
schoolhouse gate.”
7
Do students have rights?

8. ”Our problem lies in the area where students in
the exercise of First Amendment rights collide with
the rules of the school authorities.”
~ Supreme Court in Tinker
8
Those rights have exceptions

9. Keeping schools safe from physical threats
Keeping students safe from bullying and harassment
Avoiding disruption in the learning environment
Modeling civil behavior
Respect for adults?
Respect for fellow students?
Politically and religiously neutral environment?
9
School Concerns

10. “Inoursystem,state-operatedschoolsmaynotbeenclavesoftotalitarianism.
Schoolofficialsdonotpossessabsoluteauthorityovertheirstudents.Students
inschool,aswellasoutofschool,are"persons"underourConstitution.Theyare
possessedoffundamentalrightswhichtheStatemustrespect,justasthey
themselvesmustrespecttheirobligationstotheState.Inoursystem,students
maynotberegardedasclosed-circuitrecipientsofonlythatwhichtheState
choosestocommunicate.Theymaynotbeconfinedtotheexpressionofthose
sentimentsthatareofficiallyapproved.Intheabsenceofaspecificshowingof
constitutionallyvalidreasonstoregulatetheirspeech,studentsareentitledto
freedomofexpressionoftheirviews.”
10
Tinker v. Des Moines

11. Tinker v. Des Moines
“inoursystem,undifferentiatedfearorapprehensionofdisturbanceisnot
enoughtoovercometherighttofreedomofexpression.Anydeparturefrom
absoluteregimentationmaycausetrouble.Anyvariationfromthemajority's
opinionmayinspirefear.Anywordspoken,inclass,inthelunchroom,oronthe
campus,thatdeviatesfromtheviewsofanotherpersonmaystartan
argumentorcauseadisturbance.ButourConstitutionsayswemusttakethis
risk”
11

12. “InorderfortheStateinthepersonofschoolofficialstojustifyprohibitionofa
particularexpressionofopinion,itmustbeabletoshowthatitsactionwas
causedbysomethingmorethanameredesiretoavoidthediscomfortand
unpleasantnessthatalwaysaccompany anunpopularviewpoint.Certainly
wherethereisnofindingandnoshowingthatengagingintheforbidden
conductwouldmateriallyandsubstantiallyinterferewiththerequirementsof
appropriatedisciplineintheoperationoftheschool,theprohibitioncannotbe
sustained.”
12
Tinker v. Des Moines

13. Tinker v. Des Moines
“Butconductbythestudent,inclassoroutofit,whichforanyreason--
whetheritstemsfromtime,place,ortypeofbehavior--materiallydisrupts
classworkorinvolvessubstantialdisorderorinvasionoftherightsofothersis,
ofcourse,notimmunizedbytheconstitutionalguaranteeoffreedomof
speech.“
13

14. Morse v. Frederick–At a school sponsored parade, students unveiled
a sign saying “Bong Hits 4 Jesus”. Supreme Court ruled that school
sponsored events are subject to regulation just as if students were in
school, and schools have an interest in regulating messages that
promote illegal activities or drug use.
Bethel v. Fraser–High school student makes a speech nominating a
classmate for Student Body Vice President. Speech is filled with sexual
innuendos and he was suspended. Supreme Court ruled schools have a right
to regulate speech that is obscene.
Hazelwood v. Kuhlmeier–Student newspaper which covered had article on
abortion. No suspension, but student’s article was cut. Court ruled that speech
which bears the imprimatur of the school can be regulated, “so long as their
actions are reasonably related to legitimate pedagogical concerns.”
14
Other Speech Cases

15. “Wedonotnowsetforthabroad,highlygeneralFirstAmendment rule
statingjustwhatcountsas‘offcampus’speechandwhetherorhowordinary
FirstAmendment standardsmustgivewayoffcampustoaschool’sspecial
needtoprevent...Substantialdisruptionoflearning-relatedactivitiesorthe
protectionofthosewhomakeupaschoolcommunity.”
15
Mahanoy Area School District v. B.L.

16. •Cigarettes
•Rolling paper
•Marijuana
•Pipe
•Cash
•List of students who owed the accused student money
14 year old student found in the bathroom by a teacher with cigarette
smoke in the air. Brought to the principal’s office, had her bag searched
andthe principal found:
16
New Jersey v. T.L.O.

17. •Students have a right to privacy in schools!
•That right is balanced against the needs of the school to maintain an
educational environment.
•Probable cause (the usual standard) is NOT required. Instead, reasonable
suspicion applies.
•The search must be (1) justified at its inception and (2) reasonably related
in scope to the circumstances that justified the interference in the first
place.
•Note –legitimate expectation of privacy. Lockers? Car?
17
New Jersey v. T.L.O.

18. Next,whilepetitionerdoesnotcontestthatthestudentengagedintheconductforwhich
hewassuspended—i.e.,“fightingintheboy’slockerroom”–heallegesthatthestudent’s
conductwasjustifiedbecauseheactedinself-defense.Priordecisionsofthe
Commissionerhaveheldthatphysicalviolencebyastudentisnotacceptableandhave
generallydeclinedtoacceptastudent’sjustificationforfightingorotherviolentacts
exceptincasesofself-defense(AppealofDoe,57EdDeptRep,DecisionNo.17,335
[student’sactionsjustifiedasself-defenseunderthecircumstances];AppealofDoe,57
id.,DecisionNo.17,323[student’sfightingnotexcusedwhereshesoughttodefendher
brother];AppealoftheParentofaStudentwithaDisability,53id.,DecisionNo.16,574
[conductprovokedbyvictim];AppealofR.Y.,49id.336,DecisionNo.16,046[self-defense
notprovenwherestudentallegedtobethevictimofpastbullyingandharassmentbut
therecorddidnotestablishwhoinitiatedthephysicalaltercation,thestudentfailedto
complywithdirectivestostopfighting,andthestudenthadtobephysicallyseparated
fromanotherstudent];AppealofStevenandMaryAnnM.,39id.785,DecisionNo.14,380
[self-defensenotprovenbasedonpastallegedthreatsbyvictimwherestudentpunched
thevictimandpetitionerdidnotprovethatthestudenthadbeenprovoked]).Self-
defenseisalimiteddefenseinsofarasitonlyprovidesjustificationforactswhichare
necessarytoprotecttheindividualfromattack,andonlypermitssufficientforceto
reasonablyprovidesuchprotection.
18
Self Defense?

19. Goss v. Lopez, 419 U.S. 565 (1975)
75 students suspended for physical damage to school
property.
Dwight Lopez claimed he was an innocent bystander caught up in the
commotion.Betty Cromewas arrested and released without being charged.
Both studentssuspended for 10 days.
19
Students have rights, now what?

20. Not in the
Constitution
20
Is there a right to an education?

21. “The Fourteenth Amendment forbids the State to deprive any person of
life, liberty, or property without due process of law. Protected interests
in property are normally not created by the Constitution. Rather, they
are created and their dimensionsare defined by an independent
source such as state statutes or rules.”
Ohio law provides a free education to all residents between five and
21 years of age, and compulsory attendance law requires
attendance. Having chosen to extend the right to an education to
people in the state, Ohio may not withdraw that rightabsent
fundamentally fair procedures to determine whether the
misconduct has occurred.
21
Goss v. Lopez (continued)

22. “Students facing temporary suspensions have interests qualifying for
protection of the Due Process Clause, and due process requires, in
connection with a suspension of 10 days of less, that the student be given
oral or written notice of the charges against him and, if he denies them,
an explanation of the evidence the authorities have and an opportunity to
present his side of the story. The Clause requires at least these
rudimentary precautions against unfair or mistaken findings of
misconduct and arbitrary exclusion from school.”
“We stop short of construing the Due Process Clause to require,
countrywide, that hearings in connection with short suspensions must
afford the student the opportunity to secure counsel, to confront and
cross examine witnesses supporting thecharge, or to call his own
witnesses”
22
Goss v. Lopez (continued)

23. •The Supreme Court imposed an automatic requirement in all suspensions
of notice and having an opportunity to hear the evidence against you and
present your side of the story.
•For long term suspensions of 10 days or more, formal proceeding is
necessary.
23
Federal Rule

24. May give more protections, but not less
May vary from county to county
24
Local Rules

25. •According to the ACLU, students suspended or expelled for a discretionary
violation are nearly three times more likely to be in contact with the
juvenile justice system the following year.
•According to EducationNext.org, students assigned to middle schools that
are on standard deviation stricter than average are 3.2% more likely to
have ever been arrested and 2.5% more likely to be incarcerated. They are
also 1.7% more likely to drop out of high school and 2.4% less likely to
attend a 4-year college.
•Students of color are disproportionately affected -black students are
suspended and expelled three times more than white students.
•In 17/18, 2.5 million students suspended, 100k students expelled.
Sources:
https://www.aclu.org/issues/juvenile-justice/school-prison-pipeline/school-prison-pipeline-infographic
https://www.educationnext.org/proving-school-to-prison-pipeline-stricter-middle-schools-raise-risk-of-adult-arrests/
https://soeonline.american.edu/blog/school-to-prison-pipeline/
25
Why is this important?

26. New York Education Law 3214
The board of education may suspend a pupil “who is insubordinate or
disorderly or violent or disruptive, or whose conduct otherwise endangers
the safety, morals, health or welfare of others.”
“No pupil may be suspended for a period in excess of five school days
unless such pupil and the person in parental relation to such pupil shall
have had an opportunity for a fair hearing upon reasonable notice, at
which such pupil shall have the right to representation by counsel, with the
right to question witnesses against such pupil and to present witnesses
and other evidence on his behalf.”
26
State Rule Examples

27. “The superintendent shall personally hear and determine the proceeding or
may, in his discretion, designate a hearing officer to conduct the hearing. The
hearing officer shall be authorized to administer oaths and to issue subpoenas
in conjunction with the proceeding before him. A record of the hearing shall be
maintained, but no stenographic transcript shall be required and a tape
recording shall be deemed a satisfactory record. The hearing officer shall make
findings of fact and recommendations as to the appropriate measure of
discipline to the superintendent. The report of the hearing officer shall be
advisory only, and the superintendent may accept all or any part thereof. An
appeal will lie from the decision of the superintendent to the board of education
whoshall make its decision solely upon the record before it.”
27
New York Education Law 3214
State Rule Examples

28. City regulations limit most suspensions to 20 days but for the most violent
allegations of misconduct.
Progressive discipline which “seeks accountability and positive behavioral
change” is the first step.
The student’s disciplinary record, frequency and duration of the behavior,
social emotional status of the student, and the circumstances and context
in which the conduct occurred must all be considered.
28
Local Rule Examples
New York City

29. Schools records are routinely sent from school to school during
transfers.
Big question –colleges?
•Varies from school to school and varies from college to college
•Some schools won’t send disciplinary records to colleges
•Some colleges won’t ask for disciplinary records from schools
•On August 2021, The College Common Application removed their
questions asking if a student has been cited for a disciplinary violation.
29
The Permanent Record

30. •Must provide notice! Get the notice of what exactly the student is
being charged with.
•DON’T ASK FOR ADJOURNMENT JUST YET.
•Collect all the facts.
•Find out what the client wants.
•Schedule a call with the school’s attorney.
30
My client has been notified of a suspension.
Now what?

31. •Lack of evidence on the school’s part
•Evidence that goes against the school’s assertions
•Violation of free speech or right to privacy
•Self defense
•Disability
•Procedural failures (lack of notice)
•Wrongdoing on the school’s part that they want to keep quiet?
31
What’s the point of attack?

32. •Length of the suspension •Probation-like punishment
•Expungement of the record •Nondisclosure Agreement
•Guilty plea or no-contest plea •Evaluations
•Apology tour •Charges in abeyance with transfer
32
Negotiation

33. Opening Statements
Direct examination of school witnesses
Cross examination of school witnesses
Direct examination of parent witnesses
Cross examination of parent witnesses
Closing statements
33
The Hearing

34. 34
Appeals Process

35. Students who have an IEP or who may have a disability that could qualify
them for an IEP have special protections!
Manifestation Determination Review –is the accused conduct one that
stems from a failure to implement the IEP or substantially related to the
disability?
Not culpable.
35
Special Education Concerns

36. Katieiswalkingintoschool15minuteslate.Thefrontdesksecurity
officerstopsherandaskswhyshe’slate.Sheresponds“noneof
yourbusiness.”Theofficerhasahunchthatshewassmokingwith
somefriendsofhersbecausehe’sseenherfriendssmokingoutside
thedaybefore.HetellsKatietoemptyherbag,thenafterfinding
nothing,tellherstoopenherpencilcase.Therehefindscigarettes.
She’ssuspended.
36
Example #1

37. The officer has a “hunch” (not reasonable suspicion)
Association =/= reasonable suspicion
Search not reasonably tailored? Narrow in scope?
37
Thoughts:

38. TheUSpresidentialelectionsarecomingup.Sara,ahighschool
student,comesintoclasswithat-shirtwithoneofthecandidates
facesonit.Aftergettingcomplaintsfromotherstudents,the
principalsaysshecannotweartheshirtanymore.Shecomesback
inthenextdaywearingtheshirtandgetsattackedinthehallway.
Bothstudentsaresuspended.
38
Example #2

39. Silent passive expression of opinion
No disruption or disturbance on the part of the speaker
“Heckler’s veto” should not be tolerated
Self-defense?
39
Thoughts:

40. Frank,a2ndgradestudentdiagnosedwithAutismveryrecentlywasjust
givenanIEP.HisIEPstatesthathewillreceivecounselingsessions,in
parttohelpwithsocialskills.Unfortunately,duetostaffingissues,Frank
hasnothadhiscounselingsessionsintwomonths.Intheplaygroundat
recess,Frankthinkshisfriendsaremakingfunofhimandpunchesa
studentintheface.Heissuspended.
40
Example #3

41. Is the incident related to his disability?
If his IEP was implemented properly, would he
have had the social skills to prevent the
misconduct?
41
Thoughts:

42. Students have rights!01
02
03
04
When facing a potential suspension, students must be afforded
notice and opportunity to be heard.
Creativity is key when negotiating suspension cases.
Students with special needs have additional considerations during
and after disciplinary hearings.
42
Key Takeaways

43. Contact Information
Mark Gutman
[email protected]
914-455-0723
www.GVLLP.com
Call or email and I’d be happy to speak with you more in-depth or answer any questions.
43

44. 26
preencoded.png
Are you a lawyer who
wants a modern
online Continuing
Legal Education
solution? Check out
SproutEd’sUnlimited
CLE Membership!
UNLIMITED CLE MEMBERSHIP
UNLIMITED CLE
MEMBERSHIP
ON-DEMAND CLE MEMBERSHIP
ON-DEMAND CLE
MEMBERSHIP
STATE CLE MEMBERSHIPS
STATE CLE
MEMBERSHIPS