New York School Discipline Attorney
We represent students who are involved in disciplinary proceedings, such as suspension or expulsion. Whatever part they play in school discipline problems, all students have rights that can and should be protected.
Code of Conduct
Every school district is required by New York State law to have a written Code of Conduct. This Code of Conduct must be available to the public. It is usually posted on the school’s website. If the school has disciplined or is proposing to discipline your child, read the Code carefully to determine what provision he or she is accused of violating.
Schools may impose the following types of discipline, among others, on students who violate the district’s code of conduct:
• Verbal warning;
• Written warning;
• Written notification to parents or guardians;
• Suspension from transportation;
• Suspension from participation in athletic events;
• Suspension from social or extra-curricular activities;
• Suspension from other privileges;
• Exclusion from a particular class;
• In-school suspension;
• Suspension from school for five days or less;
• Suspension from school for more than five days.
The penalty imposed must be proportionate to the severity of the offense. There are procedures that must be followed for the use of certain penalties, such as removal from class, after-school detention, or suspension. A school may not lower a student’s grade as a form of discipline, unless his or her misconduct is related to academic performance. Schools are allowed to remove students from the classroom if they are disruptive.
Suspensions and Expulsion
Schools may suspend students who are insubordinate, disorderly, violent, or disruptive, or who violate school rules, or whose conduct endangers the safety, morals, health, or welfare of others.
For in-school suspensions, schools must provide the student with alternative instruction. A study hall does not satisfy this obligation. Parents and student must be given the opportunity for an informal conference with the individual who imposed the suspension.
For out-of-school suspensions, the school must take immediate steps to provide alternative instruction if the suspended student is of compulsory education age. The school must start providing the alternative instruction within one or two days of the suspension. Suspended students also have the right to continue receiving academic intervention services (AIS).
Permanent expulsion is an extreme penalty. Schools can only use it in extraordinary circumstances, such as risk of danger to others.
Due Process Rights
There are procedures that schools must follow to impose a short-term suspension (five days or less). Parents and the student must be given an opportunity, before the suspension, to participate in an informal conference with the principal, including the opportunity to question complaining witnesses. They must be given prior written notice of these rights. Students can appeal short-term suspensions directly to the State Department of Education, unless school district policy requires that they appeal to the school board first.
There are other procedures that apply to long-term suspensions (more than five days). The school district must hold a superintendent’s hearing on reasonable notice to the parents. This is like a mini-trial. Students and parents have the right to be represented by counsel; to present witnesses and other evidence; and in most cases, to cross-examine the witnesses against them. Students can appeal long-term suspensions to the local school board, and then to the New York State Department of Education.
Discipline and Special Education
Special education students have additional protections. If they are suspended for more than ten school days, this is considered a change in placement. Instead of suspending a child with a disability, the school may place him or her in an interim alternative education setting (IAES) determined by the Committee on Special Education (CSE).
In either case, the student is entitled to a manifestation hearing. The purpose of this hearing is to determine whether the child’s misconduct is related to their disability, or to the failure of the school to implement their IEP. The hearing is held by the manifestation team, which consists of a district representative, the student’s parents, and relevant members of the CSE.
If the team determines that the child’s behavior is a manifestation of their disability, the CSE must conduct a functional behavioral assessment (FBA) and implement a behavioral intervention plan (BIP).
If the team determines that the child’s behavior is not a manifestation of their disability, then the child is subject to the same consequences as their non-disabled peers. Parents can challenge this determination, or the placement of their child in an interim alternative educational setting (IAES), at an expedited due process hearing.
In any event, a student with a disability must continue to receive educational services while suspended or removed.
Whatever a child may be accused of, he or she has due process rights. If your child is accused of a disciplinary offense, call us. We will represent you at school disciplinary hearings or due process hearings, and work to achieve the best outcome for your child.