If we were typical middle-class Americans living in the late 1800s to the early 1900s, just after the Industrial Revolution, preventing the bullying of children in school would not even be a visible speck on the horizon of our priorities. In the midst of concerns that included poverty, an expanding urban economy, and the challenges of an insular family farming existence, a child’s ability to work and earn wages was often essential to their family’s survival. The child’s individual needs and education were secondary to the needs of the family – a very drastic contrast to today’s child-centered priorities to shield, nurture and educate children until they mature.
The concern for children’s rights that grew out of child labor practices in the 19th century had an impact on approaches to childhood discipline. Even within the last 50 years, a parental philosophy of “spare the rod, spoil the child” would not have raised many eyebrows. Yet in the last quarter of a century fewer parents would consider using the “rod” and many would regard corporal punishment of a child as appalling. While New Jersey was the first state to ban corporal punishment in public schools in 1867, it was not until 1977 that U.S. Supreme Court ruled that the spanking or paddling of students by school officials or teachers was unlawful [Ingraham v. Wright 430 U.S. 651 (1977); www.corpun.com/].
It is unquestionable that order and discipline are essential to the provision of a thorough and efficient education. Order and discipline ensure safety and create an environment that is conducive to student achievement. When discipline is well structured, applied consistently and focused on educating students about appropriate and civil social behavior, it contributes to a positive school climate.
The Anti-Bullying Bill of Rights (N.J.S.A. 18A:37.2 et seq.), enacted in 2011, reflects the current importance placed on the value of student rights and creating a civil school climate conducive to student achievement. The Anti-Bullying Bill of Rights requires each school to have a school safety team to develop, foster, and maintain a positive school climate (N.J.S.A. 18A:37.21).
Through policy development, policy oversight and the judicious conduct of due process hearings, the board plays a key role in maintaining rules of order that protect the rights of children and create a culture of respect in school. A fairly and consistently applied policy-driven structure that defines acceptable behavior, details consequences for violating the rules, and affords the right for students to be heard prevents discrimination and preserves the rights of each student.
The legal requirements concerning student discipline are complex, and a board is advised to consult with its policies and its board attorney on the circumstances of specific cases. But a general overview follows here.
Code of Student Conduct Through policy, the board helps sets the tone for the school climate and a culture of respect by communicating expectations regarding student conduct and behavior. The NJSBA Critical Policy Reference Manual, policy 5131 Conduct and Discipline states:
The board of education expects students to conduct themselves in keeping with their level of maturity, with a proper regard for the rights and welfare of other students, for school personnel, for the educational purpose underlying all school activities, and for the care of school facilities and equipment. Students are required to conform to reasonable standards of socially acceptable behavior; respect the person, property and rights of others; obey constituted authority and respond to those who hold that authority.
The New Jersey Department of Education requires each district and charter school to develop and annually review a code of student conduct (N.J.A.C. 6A:16-7.1). The code of student conduct is required to include a description of the students’ rights including:
- Advance notice of behaviors that will result in suspensions or expulsions;
- Education that supports student development into productive citizens;
- Attendance in safe and secure school environment;
- Attendance in school irrespective of marriage, pregnancy, or parenthood;
- Due process and appeal procedures;
- Parent notifications for law enforcement interviews, short-term and long-term suspension due process and appeal procedures, and attendance; and
- Records and privacy protections.
In addition, each district and school code of student conduct is required to contain a description of student responsibilities and behavioral expectation, as well as define graded responses to violations of the code of conduct. Grading, or graduated disciplinary responses, makes the consequences appropriate to the age of the student and the severity, frequency and seriousness of the behavioral infractions.
Districts and charter schools must provide remediation and behavioral supports to help students comply with school behavioral expectations. When students exhibit difficulty complying, such as having repeated violations, supportive planning enables the student to improve their skills and their ability to select alternative ways to more effectively deal with their difficulty. While discipline is punitive, remedial measures address educating the student to improve their behavior.
The board must establish a process for the annual review and update of the code of student conduct. Oversight of the code of student conduct may include requiring the chief school administrator to make periodic reports, and evaluating the results of the biannual Electronic Violence and Vandalism Reporting System (EVVRS) which documents district data on violent offenses, substance abuse and harassment, intimidation and bullying.
Classified Students The code of student conduct applies to all students. In the case of classified students with individualized education programs (IEPs), discipline may be administered according to the code of student conduct when the behavioral infraction is not a manifestation of the disability. A student may be classified for difficulties that include behavioral problems. When the behavioral infraction is a manifestation of the disability, the behavioral guidelines detailed in the IEP impact the discipline.
When a classified student is suspended for up to 10 days (short-term suspension), in addition to the due process rights for all student, written notification and a description of the reasons for the suspension must be forwarded to the case manager and the student’s parents/guardians (N.J.A.C. 6A:14-2.8). If the student is removed for five or more school days, the case manager and teacher are responsible for determining the educational services ensure progress in the student’s education program and IEP.
Suspensions of more than 10 consecutive or cumulative days (long-term suspension) are considered a change of placement and require an IEP review. The review, or manifestation determination, is conducted to determine:
- Whether the conduct was caused by or had a direct and substantial relationship to the child’s disability; or
- Whether the conduct was the direct result of failure to implement the IEP.
If a manifestation is found, revisions to the IEP may be considered and an intervention plan implemented. The child must be returned to school unless the parent agrees to a change in placement as part of the behavioral intervention plan.
Where the IEP team determines that the student’s conduct was not a manifestation of the student’s disability, the student is entitled to the due process protections afforded general education students.
In summary, discipline, up to and including suspension and expulsion for classified students is considered with regard to the unique educational arrangements of the IEP. The law recognizes that disciplinary issues may be related to the nature of the disability and therefore integral to the student’s individualized education program. In addition, the continuity of the student’s educational program is safeguarded with the provision of educational services after a removal of five or more days.
Suspension and Expulsion Short- and long-term suspension and expulsion are among the most serious disciplinary consequences administered to student. The law lists the disruptive behaviors for which a board is permitted to remove a student from school, including (but not limited to) defiance of the authority, presenting a danger to others, theft and bullying (see Critical Policy 5114 Suspension and Expulsion, and N.J.S.A. 18A:37-2). The offenses listed in the law describe the more serious infractions for which suspension and expulsion are appropriate. The law lists behaviors for which the board may suspend a student but there are four reasons that require a student be removed from the school (temporarily or permanently):
- Assault against board member, school personnel or student;
- Assault against board member, school personnel student with a weapon;
- Gun possession on school property, on a school bus or at a school function; and
- Conviction of possession of a gun or a crime involving a gun off school property.
Removal of a student from the educational program does not release the board from its responsibility of providing a free public education for the student. When a student is removed from the educational program, alternative educational arrangements must be made.
Due Process Not all disciplinary appeals require a board hearing. The board may determine, through a review of a disciplinary appeal and the documented actions taken by the teacher and administration, that the student received the appropriate consequences and that the administration effectively implemented the code of student conduct. In such a case the board may render a decision that a hearing is unnecessary. In all cases, whether or not a board hearing is conducted, the decision of the board should be documented in writing to the complainant.
The board is required by law to conduct a board hearing when a hearing is requested by the parent/guardian in instances of harassment, intimidation and bullying and behavioral violations that result in long-term suspension or expulsion.
Any violation of the code of student conduct that results in the suspension or expulsion of a student requires the board to ensure that students receive due process for compliance with the law (N.J.A.C. 6A:7-2 through -4).
In the case of short-term suspension for one to 10 consecutive days, due process means that the principal or designee must conduct an informal hearing (inform the student of the charges, give the student a chance to respond and provide notice to parents/guardians of the suspension).
For a long-term suspension of more than 10 consecutive days, a student is entitled to all the due process for a short-term suspension as well as written notification to parents/guardians. The notification must include a description of the charges and the facts on which the charges are based and an explanation of the student’s due process rights.
The student must be given the opportunity to have a board hearing. If a board hearing is requested, the board is required to hold the hearing within 21 days of the first day of the suspension. The student has the right to present a defense; present witnesses and/or signed statements by witnesses; and face and question school witnesses.
The board must render a decision in writing and inform the student of his or her due process right to appeal the board decision within 90 days to the commissioner of education.
View a chart that details administrative and board responsibilities concerning suspension and expulsion.
Home Instruction Because disciplinary measures that remove a student from school potentially conflict with the constitutional mandate to provide “a thorough and efficient system of free public schools for the instruction of all children in the state between the ages of 5 and 18 years,” the board is required to provide home or out-of-school instruction. The instruction must be provided no later than five school days after the student has left the general education program.
The district is required to plan and monitor the home or out-of-school instruction, ensure it is provided by appropriately certified staff and see that it meets the New Jersey Student Learning Standards (N.J.A.C. 6A:16-10.2; see Critical Policy 6173 Home Instruction). When a student cannot be safely returned to school, the board is required to approve an alternate education program (see Critical Policy 6172 Alternative Education Program).
Most people would agree with the oft-quoted sentiment, “A nation’s greatness is measured by how it treats its weakest members.” Public schools are a microcosm of our nation, and elected and appointed school leaders play a significant role paving the road leading to a great future. Like the child advocates of our past who fought for child labor laws and championed the rights of children, school leaders today continue to take up the mantle by ensuring that order and discipline contribute to a culture of respect that values the rights and dignity of children. It is the role of school leaders to develop clear policy, painstakingly see that the policy is implemented fairly and, when necessary, provide an impartial forum for disputes to be recognized and heard.
For model and sample board policies contact NJSBA’s policy services unit.