WSR 06-20-132

EXPEDITED RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[ Filed October 4, 2006, 11:35 a.m. ]

Title of Rule and Other Identifying Information: Chapter 392-400 WAC, Pupils.

NOTICE

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Marcia L. Riggers, Office of Superintendent of Public Instruction, P.O. Box 47200, Olympia, WA 98504-7200 , AND RECEIVED BY December 18, 2006.


Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These changes are being made as required under E2SHB 2098, sections 909 through 911.

Statutory Authority for Adoption: RCW 28A.305.160.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Office of superintendent of public instruction, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Marcia L. Riggers, Office of Superintendent of Public Instruction, (360) 725-6175.

October 3, 2006

Marty S. Daybell

Deputy Superintendent

OTS-9245.1


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-200   Purpose and application.   The purpose of this chapter is to implement RCW ((28A.305.160)) 28A.600.015 by prescribing the substantive and procedural due process rights of students served by any program or activity conducted by or in behalf of a common school district: Provided, That the enforcement of rules promulgated by the Washington interscholastic activity association and like organizations that govern the participation of students in interschool activities, and appeals in connection therewith, shall be governed by rules of the organization that have been adopted pursuant to RCW 28A.600.200 ((and approved by the state board of education -- not by this chapter)). The procedures and standards set forth in this chapter and those adopted by a school district in conformance with this chapter shall govern the imposition of corrective action or punishment (i.e., discipline, suspension, and expulsion) upon any student by a school district and its agents.

The provisions of this chapter are intended to establish the minimum procedural and substantive due process rights of students. School districts are free to establish additional due process requirements and limitations and shall do so as necessary to accommodate the constitutional rights of students as now or hereafter established.

For rules regarding student conduct which supplement this chapter see chapter 392-145 WAC governing the operation of school buses, particularly WAC 392-145-015(4) regarding the responsibility of bus drivers and certificated staff members who accompany students for the behavior of students, and WAC 392-145-035 regarding the duty to adopt and post rules, including rules of conduct, governing school bus passengers.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-200, filed 6/22/06, effective 6/22/06. Statutory Authority: 1990 c 33. 90-17-009, 180-40-200, filed 8/6/90, effective 9/6/90. Statutory Authority: RCW 28A.04.132. 82-20-052 (Order 4-82), 180-40-200, filed 10/1/82; Order 6-77, 180-40-200, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-210   Student responsibilities and duties.   The mission of the common school system is to provide learning experience which will assist all students to develop skills, competencies, and attitudes that are fundamental to an individual's achievement as a responsible, contributing citizen. In order to maintain and advance this mission, it shall be the responsibility and duty of each student to pursue his/her course of studies, comply with written rules of a common school district which are adopted pursuant to and in compliance with WAC ((180-40-225)) 392-400-225 and RCW 28A.600.010, and submit to reasonable corrective action or punishment imposed by a school district and its agents for violation(s) of such rules. The provisions of this chapter do not lessen the foregoing responsibilities and duties of each student. This chapter is intended to assure that corrective action or punishment is imposed for just cause and in a fair and just manner.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-210, filed 6/22/06, effective 6/22/06. Statutory Authority: 1990 c 33. 90-17-009, 180-40-210, filed 8/6/90, effective 9/6/90; Order 6-77, 180-40-210, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-227   School district rules defining students religious rights.   It shall be the responsibility and duty of each school district to adopt policies of the district for implementation of students' rights to freedom of religion and to have their schools free from sectarian control or influence while they are participating in any school district conducted or sponsored activity or while they are otherwise subject to school district supervision and control. Such rules shall be adopted ((by December 1, 1985)) and ((shall be)) transmitted to the superintendent of public instruction ((by December 10, 1985)).

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-227, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.04.132. 85-09-049 (Order 6-85), 180-40-227, filed 4/16/85; 85-04-009 (Order 3-85), 180-40-227, filed 1/25/85.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-230   Persons authorized to impose discipline, suspension, expulsion, or emergency removal upon students.   (1) Each certificated teacher, each school administrator, each school bus driver, and any other school employee designated by the board of directors of a school district shall possess the authority to impose discipline upon a student for misconduct which violates rules of the school district established pursuant to WAC ((180-40-225)) 392-400-225 and to impose an emergency removal from a class, subject, or activity upon a student pursuant to WAC ((180-40-290)) 392-400-290.

(2) The board of directors of any school district may delegate to the superintendent and/or his or her designee(s) the authority to impose suspensions and expulsions upon students for misconduct which violates rules of the school district established pursuant to WAC ((180-40-225)) 392-400-225. Each certificated teacher and each administrator shall possess the authority to recommend suspensions and expulsions for such misconduct.

(3) Any board of directors which chooses not to delegate the authority to impose suspensions and/or expulsions, nevertheless, shall be subject to the requirements set forth in this chapter when it imposes a suspension or expulsion.

(4) Notwithstanding any provision of this section to the contrary, each teacher is empowered to exclude any student who creates a disruption of the educational process in violation of the building disciplinary standards while under the teacher's immediate supervision from his or her individual classroom and instructional or activity area for all or any portion of the balance of the school day or until the principal or designee and teacher have conferred, whichever occurs first: Provided, That except in emergency circumstances as provided for in WAC ((180-40-290)) 392-400-290, the teacher shall have first attempted one or more alternative forms of corrective action: Provided further, That in no event without the consent of the teacher shall an excluded student be returned during the balance of the particular class or activity period from which the student was initially excluded.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-230, filed 6/22/06, effective 6/22/06. Statutory Authority: 1980 c 171. 80-10-030 (Order 11-80), 180-40-230, filed 8/4/80; Order 6-77, 180-40-230, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-235   Discipline -- Conditions and limitations.   Discipline may be imposed upon any student for violation of the rules of the school district that have been established pursuant to WAC ((180-40-225)) 180-400-225, subject to the following limitations and conditions and the grievance procedure set forth in WAC ((180-40-240)) 392-400-240:

(1) No form of discipline shall be enforced in such a manner as to prevent a student from accomplishing specific academic grade, subject, or graduation requirements.

(2) A student's academic grade or credit in a particular subject or course may be adversely affected by reason of tardiness or absences only to the extent and upon the basis that:

(a) The student's attendance and/or participation is related to the instructional objectives or goals of the particular subject or course, and

(b) The student's attendance and/or participation has been identified by the teacher pursuant to policy of the school district as a basis for grading, in whole or in part, in the particular subject or course.

(3) Corporal punishment which is defined as any act which willfully inflicts or willfully causes the infliction of physical pain on a student is prohibited. ((This prohibition shall take effect in all school districts September 1, 1994.))

Corporal punishment does not include:

(a) The use of reasonable physical force by a school administrator, teacher, school employee or volunteer as necessary to maintain order or to prevent a student from harming him/herself, other students and school staff or property;

(b) Physical pain or discomfort resulting from or caused by training for or participation in athletic competition or recreational activity voluntarily engaged in by a student;

(c) Physical exertion shared by all students in a teacher directed class activity, which may include, but is not limited to, physical education exercises, field trips or vocational education projects; or

(d) Physical restraint or the use of aversive therapy as part of a behavior management program in a student's individual education program which has been signed by the parent and is carried out according to district procedures in compliance with WAC 392-171-800, et seq.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-235, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.410.010. 94-03-102 (Order 3-94), 180-40-235, filed 1/19/94, effective 2/19/94. Statutory Authority: RCW 28A.305.160. 93-01-077, 180-40-235, filed 12/14/92, effective 1/14/93. Statutory Authority: RCW 28A.04.132. 90-17-004, 180-40-235, filed 8/2/90, effective 9/2/90; 87-09-040 (Order 6-87), 180-40-235, filed 4/14/87; Order 6-77, 180-40-235, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-240   Discipline -- Grievance procedure.   Any student, parent, or guardian who is aggrieved by the imposition of discipline shall have the right to an informal conference with the building principal or his or her designee for the purpose of resolving the grievance. The employee whose action is being grieved shall be notified of the initiation of a grievance as soon as reasonably possible. During such conference the student, parent, or guardian shall be subject to questioning by the building principal or his or her designee and shall be entitled to question school personnel involved in the matter being grieved. Subsequent to the building level grievance meeting, the student, parent, or guardian, upon two school business days' prior notice, shall have the right to present a written and/or oral grievance to the superintendent of the district or his/her designee. If the grievance is not resolved, the student, parent, or guardian, upon two school business days' prior notice, shall have the right to present a written and/or oral grievance to the board of directors during the board's next regular meeting or to the school district disciplinary appeal council if the board has delegated its responsibility to hear and decide such grievances to the council pursuant to WAC ((180-40-317)) 392-400-317. The board or council shall notify the student, parent, or guardian of its response to the grievance within ten school business days after the date of the meeting. The discipline action shall continue notwithstanding the implementation of the grievance procedure set forth in this section unless the principal or his or her designee elects to postpone such action.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-240, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.305.160 and 1996 c 321. 96-15-098, 180-40-240, filed 7/22/96, effective 8/22/96; Order 6-77, 180-40-240, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-245   Short-term suspension -- Conditions and limitations.   A short-term suspension may be imposed upon a student for violation of school district rules adopted pursuant to WAC ((180-40-225)) 392-400-225, subject to the following limitations or conditions, the prior informal conference procedures set forth in WAC ((180-40-250)) 392-400-250, and the grievance procedures set forth in WAC ((180-40-255)) 392-400-255:

(1) The nature and circumstances of the violation must be considered and must reasonably warrant a short-term suspension and the length of the suspension imposed. This requirement does not preclude school districts (that is, the boards of directors of school districts) from establishing the nature and extent of the corrective actions and/or punishments which, as a general rule, must be imposed as a consequence of proscribed misconduct. Such advance notice to students is advisable, and the imposition of such preestablished corrective action and/or punishment is permissible as long as (a) disciplinarians and hearing officers are allowed to grant exceptions in cases involving extenuating and/or exceptional circumstances, and (b) short-term suspension is not established as the corrective action or punishment for a student's first time offense other than for offenses involving exceptional misconduct as defined in subsection (2) of this section.

(2) As a general rule, no student shall be suspended for a short term unless another form of corrective action or punishment reasonably calculated to modify his or her conduct has previously been imposed upon the student as a consequence of misconduct of the same nature. A school district may, however, elect to adopt rules providing for the immediate resort to short-term suspension in cases involving exceptional misconduct as long as disciplinarians and hearing officers may grant exceptions in cases involving extenuating and/or exceptional circumstances, notwithstanding the fact prior alternative corrective action or punishment has not been imposed upon the student(s) involved. For the purpose of this rule, "exceptional misconduct" means misconduct other than absenteeism which a school district has judged following consultation with an ad hoc citizens committee to (a) be of such frequent occurrence, notwithstanding past attempts of district personnel to control such misconduct through the use of other forms of corrective action and/or punishment, as to warrant an immediate resort to short-term suspension, and/or (b) be so serious in nature and/or so serious in terms of the disruptive effect upon the operation of the school(s) as to warrant an immediate resort to short-term suspension (for example, misconduct judged by a school district to be the same or of the same nature as a violation of the state's drug or controlled substances laws). The ad hoc citizens committee required by this section shall be composed of three or more persons chosen by the school district or the administrative designee(s) of the district, and shall be constituted with the intent and purpose of representing various socioeconomic, minority and majority populations of the school district to the extent deemed practical.

(3) No student subject to compulsory attendance pursuant to chapter 28A.225 RCW, as now or hereafter amended, shall be suspended by reason, in whole or part, of one or more unexcused absences unless the school district has first imposed an alternative corrective action or punishment reasonably calculated to modify his or her conduct and, in addition:

(a) Provided notice to the student's parent(s) or guardian(s) or custodial parent(s) in writing in English or, if different, the primary language of the parent(s), guardian(s) or custodial parent(s) that the student has failed to attend school without valid justification, and by other means reasonably necessary to achieve notice of such fact;

(b) Scheduled a conference or conferences with the parent(s) or guardian(s) or custodial parent(s) and the student at a time and place reasonably convenient to all persons included to analyze the causes for the student's absence, the analysis to determine by appropriate means whether the student should be made a focus of concern for placement in a special education or other special program designed for his/her educational success; and

(c) Taken steps to reduce the student's absence which include, where appropriate in the judgment of local school officials and where possible, discussed with the student, parent(s), guardian(s) or custodial parent(s), adjustments of the student's school program or school or course assignment or assisting the student or parent to obtain supplementary services that might ameliorate the cause(s) for the student's absence from school.

(4) Kindergarten through grade four -- No student in grades kindergarten through four shall be subject to short-term suspensions for more than a total of ten school days during any single semester or trimester as the case may be, and no loss of academic grades or credit shall be imposed by reason of the suspension of such a student.

(5) Grade five and above program -- No student in the grade five and above program shall be subjected to short-term suspensions for more than a total of fifteen school days during any single semester or ten school days during any single trimester, as the case may be.

(6) Any student subject to a short-term suspension shall be provided the opportunity upon his or her return to make up assignments and tests missed by reason of the short-term suspension if:

(a) Such assignments or tests have a substantial effect upon the student's semester or trimester grade or grades, or

(b) Failure to complete such assignments or tests would preclude the student from receiving credit for the course or courses.

(7) Any student who has been suspended shall be allowed to make application for readmission at any time. Each school district board of directors shall adopt written rules which provide for such an application for readmission and set forth the procedures to be followed.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-245, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.305.160 and 1996 c 321. 97-01-047, 180-40-245, filed 12/12/96, effective 1/12/97. Statutory Authority: 1990 c 33. 90-17-009, 180-40-245, filed 8/6/90, effective 9/6/90. Statutory Authority: RCW 28A.04.132. 85-12-042 (Order 14-85), 180-40-245, filed 6/5/85. Statutory Authority: 1979 1st ex.s. c 173 and c 201. 79-11-049 (Order 14-79), 180-40-245, filed 10/16/79; Order 13-77, 180-40-245, filed 10/18/77; Order 6-77, 180-40-245, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-250   Short-term suspension -- Prior conference required -- Notice to parent.   (1) Prior to the short-term suspension of any student a conference shall be conducted with the student as follows:

(a) An oral or written notice of the alleged misconduct and violation(s) of school district rules shall be provided to the student,

(b) An oral or written explanation of the evidence in support of the allegation(s) shall be provided to the student,

(c) An oral or written explanation of the corrective action or punishment which may be imposed shall be provided to the student, and

(d) The student shall be provided the opportunity to present his/her explanation.

(2) In the event a short-term suspension is to exceed one calendar day the parent(s) or guardian(s) of the student shall be notified of the reason for the student's suspension and the duration of the suspension orally and/or by letter deposited in the United States mail as soon as reasonably possible. The notice shall also inform the parent or guardian of the right to an informal conference pursuant to WAC ((180-40-255)) 392-400-255 and that the suspension may possibly be reduced as a result of such conference.

(3) All short-term suspensions and the reasons therefor shall be reported in writing to the superintendent of the school district or his or her designee within twenty-four hours after the imposition of the suspension.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-250, filed 6/22/06, effective 6/22/06; Order 6-77, 180-40-250, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-255   Short-term suspension -- Grievance procedure.   Any student, parent, or guardian who is aggrieved by the imposition of a short-term suspension shall have the right to an informal conference with the building principal or his or her designee for the purpose of resolving the grievance. The employee whose action is being grieved shall be notified of the initiation of a grievance as soon as reasonably possible. During such conference the student, parent, or guardian shall be subject to questioning by the building principal or his or her designee and shall be entitled to question school personnel involved in the matter being grieved. Subsequent to the building level grievance meeting, the student, parent, or guardian, upon two school business days' prior notice, shall have the right to present a written and/or oral grievance to the superintendent of the district or his/her designee. If the grievance is not resolved, the student, parent, or guardian, upon two school business days' prior notice, shall have the right to present a written and/or oral grievance to the board of directors during the board's next regular meeting or to the school district disciplinary appeal council if the board has delegated its responsibility to hear and decide such grievances to the council pursuant to WAC ((180-40-317)) 392-400-317. The board or council shall notify the student, parent, or guardian of its response to the grievance within ten school business days after the date of the meeting. The short-term suspension shall continue notwithstanding the implementation of the grievance procedure set forth in this section unless the principal or his or her designee elects to postpone such action.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-255, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.305.160 and 1996 c 321. 96-15-098, 180-40-255, filed 7/22/96, effective 8/22/96; Order 6-77, 180-40-255, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-260   Long-term suspension -- Conditions and limitations.   A long-term suspension may be imposed upon a student for violation of school district rules adopted pursuant to WAC ((180-40-225)) 392-400-225, subject to the following limitations or conditions and the notice requirements set forth in WAC ((180-40-265)) 392-400-265 and the hearing requirements set forth in WAC ((180-40-270)) 392-400-270:

(1) The nature and circumstances of the violation must be considered and must reasonably warrant a long-term suspension and the length of the suspension imposed. This requirement does not preclude school districts (that is, the boards of directors of school districts) from establishing the nature and extent of the corrective actions and/or punishments which, as a general rule, must be imposed as a consequence of proscribed misconduct. Such advance notice to students is advisable, and the imposition of such preestablished corrective action and/or punishment is permissible as long as (a) disciplinarians and hearing officers are allowed to grant exceptions in cases involving extenuating and/or exceptional circumstances, and (b) long-term suspension is not established as the corrective action or punishment for a student's first time offense other than for offenses involving exceptional misconduct as defined in subsection (2) of this section.

(2) As a general rule, no student shall be suspended for a long term unless another form of corrective action or punishment reasonably calculated to modify his or her conduct has previously been imposed upon the student as a consequence of misconduct of the same nature. A school district may, however, elect to adopt rules providing for the immediate resort to long-term suspension in cases involving exceptional misconduct as long as disciplinarians and hearing officers are allowed to grant exceptions in cases involving extenuating and/or exceptional circumstances, notwithstanding the fact prior alternative corrective action or punishment has not been imposed upon the student(s) involved. For the purpose of this rule, "exceptional misconduct" means misconduct other than absenteeism which a school district has judged following consultation with an ad hoc citizens committee to (a) be of such frequent occurrence, notwithstanding past attempts of district personnel to control such misconduct through the use of other forms of corrective action and/or punishment, as to warrant an immediate resort to long-term suspension, and/or (b) be so serious in nature and/or so serious in terms of the disruptive effect upon the operation of the school(s) as to warrant an immediate resort to long-term suspension (for example, misconduct judged by a school district to be the same or of the same nature as a violation of the state's drug or controlled substances laws). The ad hoc citizens committee required by this section shall be composed of three or more persons chosen by the school district or the administrative designee(s) of the district, and shall be constituted with the intent and purpose of representing various socioeconomic, minority and majority populations of the school district to the extent deemed practical.

(3) No student subject to compulsory attendance pursuant to chapter 28A.225 RCW, as now or hereafter amended, shall be suspended by reason, in whole or part, of one or more unexcused absences unless the school district has first imposed an alternative corrective action or punishment reasonably calculated to modify his or her conduct and, in addition:

(a) Provided notice to the student's parent(s) or guardian(s) or custodial parent(s) in writing in English or, if different, the primary language of the parent(s), guardian(s) or custodial parent(s) that the student has failed to attend school without valid justification, and by other means reasonably necessary to achieve notice of such fact;

(b) Scheduled a conference or conferences with the parent(s) or guardian(s) or custodial parent(s) and the student at a time and place reasonably convenient to all persons included to analyze the causes for the student's absence, the analysis to determine by appropriate means whether the student should be made a focus of concern for placement in a special education or other special program designed for his/her educational success; and

(c) Taken steps to reduce the student's absence which include, where appropriate in the judgment of local school officials and, where possible, discussed with the student, parent(s), guardian(s) or custodial parent(s), adjustments of the student's school program or school or course assignment or assisting the student or parent to obtain supplementary services that might ameliorate the cause(s) for the student's absence from school.

(4) Kindergarten through grade four -- No student in grades kindergarten through four shall be subject to long-term suspension during any single semester or trimester, as the case may be, and no loss of academic grades or credit shall be imposed by reason of the suspension of such a student.

(5) Grade five and above program -- No single long-term suspension shall be imposed upon a student in the grade five and above program in a manner which causes the student to lose academic grades or credit for in excess of one semester or trimester, as the case may be, during the same school year.

(6) Any student who has been suspended shall be allowed to make application for readmission at any time. Each school district board of directors shall adopt written rules which provide for such an application for readmission and set forth the procedures to be followed.

(7) All long-term suspensions and the reasons therefor shall be reported in writing to the superintendent of the school district or his or her designee within twenty-four hours after the imposition of the suspension.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-260, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.305.160. 97-08-019, 180-40-260, filed 3/25/97, effective 4/25/97. Statutory Authority: RCW 28A.305.160 and 1996 c 321. 97-01-047, 180-40-260, filed 12/12/96, effective 1/12/97. Statutory Authority: 1990 c 33. 90-17-009, 180-40-260, filed 8/6/90, effective 9/6/90. Statutory Authority: RCW 28A.04.132. 85-12-042 (Order 14-85), 180-40-260, filed 6/5/85. Statutory Authority: 1979 1st ex.s. c 173 and c 201. 79-11-049 (Order 14-79), 180-40-260, filed 10/16/79; Order 6-77, 180-40-260, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-275   Expulsion -- Conditions and limitations.   A student may be expelled for violation of school district rules adopted pursuant to WAC ((180-40-225)) 392-400-225, subject to the following limitations or conditions, the notice requirements set forth in WAC ((180-40-280)) 392-400-280, and the hearing requirements set forth in WAC ((180-40-285)) 392-400-285:

(1) The nature and circumstances of the violation must reasonably warrant the harshness of expulsion.

(2) No student shall be expelled unless other forms of corrective action or punishment reasonably calculated to modify his or her conduct have failed or unless there is good reason to believe that other forms of corrective action or punishment would fail if employed.

(3) In addition to the alternative corrective action requirement of subsection (2) of this section, no student subject to compulsory attendance pursuant to chapter 28A.225 RCW, as now or hereafter amended, shall be expelled by reason, in whole or part, of one or more unexcused absences unless the school district has also first:

(a) Provided notice to the student's parent(s) or guardian(s) or custodial parent(s) in writing in English or, if different, the primary language of the parent(s), guardian(s) or custodial parent(s) that the student has failed to attend school without valid justification, and by other means reasonably necessary to achieve notice of such fact;

(b) Scheduled a conference or conferences with the parent(s) or guardian(s) or custodial parent(s) and the student at a time and place reasonably convenient to all persons included to analyze the causes for the student's absence, the analysis to determine by appropriate means whether the student should be made a focus of concern for placement in a special education or other special program designed for his/her educational success; and

(c) Taken steps to reduce the student's absence which include, where appropriate in the judgment of local school officials and, where possible, discussed with the student, parent(s), guardian(s) or custodial parent(s), adjustments of the student's school program or school or course assignment or assisting the student or parent to obtain supplementary services that might ameliorate the cause(s) for the student's absence from school.

(4) Once a student has been expelled in compliance with this chapter the expulsion shall be brought to the attention of appropriate local and state authorities including, but not limited to, juvenile authorities acting pursuant to chapter 13.04 RCW in order that such authorities may address the student's educational needs.

(5) Any student who has been expelled shall be allowed to make application for readmission at any time. Each school district board of directors shall adopt written rules which provide for such an application for readmission and set forth the procedures to be followed.

(6) All expulsions and the reasons therefor shall be reported in writing to the superintendent of the school district or his or her designee within twenty-four hours after the imposition of the expulsion.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-275, filed 6/22/06, effective 6/22/06. Statutory Authority: 1990 c 33. 90-17-009, 180-40-275, filed 8/6/90, effective 9/6/90. Statutory Authority: 1979 1st ex.s. c 173 and c 201. 79-11-049 (Order 14-79), 180-40-275, filed 10/16/79; Order 6-77, 180-40-275, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-285   Expulsion -- Prehearing and hearing process.   (1) If a request for a hearing is received pursuant to WAC ((180-40-280)) 392-400-280 within the required three school business days, the school district shall schedule a hearing to commence within three school business days after the date upon which the request for a hearing was received.

(2) The student and his or her parent(s) or guardian(s) shall have the right to:

(a) Inspect in advance of the hearing any documentary and other physical evidence which the school district intends to introduce at the hearing,

(b) Be represented by legal counsel,

(c) Question and confront witnesses, unless a school district witness does not appear and the nonappearance of the witness is excused by the person(s) hearing the case based upon evidence of good reason for doing so submitted by the school district. The evidence submitted by the school district must at a minimum establish either:

(i) That the district made a reasonable effort to produce the witness and is unable to do so; or,

(ii) That it is not advisable for the student to appear due to an expectation and fear on the part of the responsible district official(s) or the student of retaliation against the student if he or she appears as a witness,

(d) Present his or her explanation of the alleged misconduct, and

(e) Make such relevant showings by way of witnesses and the introduction of documentary and other physical evidence as he or she desires.

(3) The designee(s) of the school district assigned to present the district's case shall have the right to inspect in advance of the hearing any documentary and other physical evidence which the student and his or her parent(s) or guardian(s) intend to introduce at the hearing.

(4) The person(s) hearing the case shall not be a witness and the guilt or innocence of the student shall be determined solely on the basis of the evidence presented at the hearing.

(5) Either a tape-recorded or verbatim record of the hearing shall be made.

(6) A written decision setting forth the findings of fact, conclusions, and the expulsion or lesser form of corrective action or punishment to be imposed, if any, shall be provided to the student's legal counsel or, if none, to the student and his or her parent(s) or guardian(s).

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-285, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.305.160. 00-07-018, 180-40-285, filed 3/3/00, effective 4/3/00; Order 6-77, 180-40-285, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-295   Emergency expulsion -- Limitations.   Notwithstanding any other provision of this chapter, a student may be expelled immediately by a school district superintendent or a designee of the superintendent in emergency situations: Provided, That the superintendent or designee has good and sufficient reason to believe that the student's presence poses an immediate and continuing danger to the student, other students, or school personnel or an immediate and continuing threat of substantial disruption of the educational process. An emergency expulsion shall continue until rescinded by the superintendent or his or her designee, or until modified or reversed pursuant to the hearing provisions set forth in WAC ((180-40-305)) 392-400-305 or the appeal provisions set forth in WAC ((180-40-315)) 392-400-315.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-295, filed 6/22/06, effective 6/22/06; Order 6-77, 180-40-295, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-300   Emergency expulsion -- Notice of hearing -- Waiver of hearing right.   (1) The student and his or her parent(s) or guardian(s) shall be notified of the emergency expulsion of the student and of their opportunity for a hearing either (a) by hand delivering written notice to the student's parent(s) or guardian(s) within twenty-four hours of the expulsion and documenting delivery by obtaining his or her signature acknowledging receipt or the written certification of the person making the delivery, or (b) by certified letter(s) deposited in the United States mail, within twenty-four hours of the expulsion: Provided, That if the emergency expulsion is based upon a failure to comply with the state immunization law (see chapter ((180-38)) 392-380 WAC), the notice must be received by the student's parent(s) or guardian(s) prior to the emergency expulsion of the student regardless of the method of delivery. In addition, if the notice is by certified letter, reasonable attempts shall be made to notify the student and his or her parent(s) or guardian(s) by telephone or in person as soon as reasonably possible. Such written and oral notice shall:

(a) Be provided in the predominant language of a student and/or a parent(s) or guardian(s) who predominantly speak a language other than English, to the extent feasible,

(b) Specify the alleged reason(s) for the emergency expulsion,

(c) Set forth the corrective action or punishment taken and proposed,

(d) Set forth the right of the student and/or his or her parent(s) or guardian(s) to a hearing for the purpose of contesting the allegation(s) as soon as reasonably possible, and

(e) Set forth the facts that:

(i) A written (or "oral" if provided for by school district policy) request for a hearing must be received by the school district employee designated, or by his or her office, on or before the expiration of the tenth school business day after receipt of the notice of opportunity for a hearing, and

(ii) If such a request is not received within the prescribed period of time, then the right to a hearing may be deemed to have been waived and the emergency expulsion may be continued as deemed necessary by the school district without any further opportunity for the student or his or her parent(s) or guardian(s) to contest the matter. A schedule of "school business days" potentially applicable to the exercise of such hearing right should be included with the notice.

(2) The student and/or his or her parent(s) or guardian(s) shall reply to the notice of opportunity for a hearing and request a hearing within ten school business days after the date of receipt of the notice. A request for a hearing shall be provided to the school district employee specified in the notice of opportunity for a hearing, or to his or her office. A request for a hearing shall be accepted if in writing and may be accepted orally if expressly provided for and allowed by rule of the school district.

(3) If a request for a hearing is not received within the required ten school business day period, the school district may deem the student and his or her parent(s) or guardian(s) to have waived the right to a hearing and the emergency expulsion may be continued as deemed necessary by the school district.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-300, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.04.132. 86-20-055 (Order 13-86), 180-40-300, filed 9/29/86; Order 6-77, 180-40-300, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-305   Emergency expulsion -- Prehearing and hearing process.   (1) If a request for a hearing within the required ten school business days is received pursuant to WAC ((180-40-300)) 392-400-300, the school district shall immediately schedule and give notice of a hearing to commence as soon as reasonably possible and in no case later than the third school business day after receipt of the request for hearing.

(2) The student and his or her parent(s) or guardian(s) shall have the right to:

(a) Inspect in advance of the hearing any documentary and other physical evidence which the school district intends to introduce at the hearing,

(b) Be represented by legal counsel,

(c) Question and confront witnesses, unless a school district witness does not appear and the nonappearance of the witness is excused by the person(s) hearing the case based upon evidence of good reason for doing so submitted by the school district. The evidence submitted by the school district must at a minimum establish either:

(i) That the district made a reasonable effort to produce the witness and is unable to do so; or,

(ii) That it is not advisable for the student to appear due to an expectation and fear on the part of the responsible district official(s) or the student of retaliation against the student if he or she appears as a witness,

(d) Present his or her explanation of the alleged misconduct, and

(e) Make such relevant showings by way of witnesses and the introduction of documentary and other physical evidence as he or she desires.

(3) The designee(s) of the school district assigned to present the district's case shall have the right to inspect in advance of the hearing any documentary and other physical evidence that the student and his or her parent(s) or guardian(s) intend to introduce at the hearing.

(4) The person(s) hearing the case shall not be a witness and the guilt or innocence of the student shall be determined solely on the basis of the evidence presented at the hearing.

(5) Either a tape-recorded or verbatim record of the hearing shall be made.

(6) Within one school business day after the date upon which the hearing concludes, a decision as to whether or not the expulsion shall be continued shall be rendered, and the student's legal counsel or, if none, the student and his or her parent(s) or guardian(s) shall be notified thereof by depositing a certified letter in the United States mail. The decision shall set forth the findings of fact, the conclusions (including a conclusion as to whether or not the emergency situation giving rise to the emergency expulsion continues), and whether or not the emergency expulsion shall be continued or a lesser form of corrective action or punishment is to be imposed.

(7) An emergency expulsion may be continued following the hearing on the basis that the emergency situation continues and/or as corrective action or punishment for the action(s) giving rise to the emergency expulsion in the first instance.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-305, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.305.160. 00-07-018, 180-40-305, filed 3/3/00, effective 4/3/00; Order 6-77, 180-40-305, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-310   Appeals -- Long-term suspension and expulsion.   Appeals from decisions rendered pursuant to WAC ((180-40-270, 180-40-285 and 180-40-305)) 392-400-270, 392-400-285 and 392-400-305 which impose either a long-term suspension or an expulsion upon a student shall be governed as follows:

(1) Any school district board of directors may delegate its authority to hear and decide long-term suspension and expulsion appeals to a school district disciplinary appeal council established by the board. School district disciplinary appeal councils shall be appointed by the school district board of directors for fixed terms and shall consist of not less than three persons.

(2) If the case was not heard and decided by the school district board of directors or school district disciplinary appeal council, the student and his or her parent(s) or guardian(s) shall have the right to appeal the decision to the board of directors or the disciplinary appeal council. Notice indicating that the student or his or her parent(s) or guardian(s) desire to appeal the decision shall be provided to either the office of the school district superintendent or to the office of the person who rendered the decision within three school business days after the date of receipt of the decision. The notice of appeal shall be accepted if in writing and may be accepted orally if expressly provided for and allowed by rule or policy of the district.

(3) If an appeal is not taken to the board of directors or disciplinary appeal council within the required three school business day period, the suspension or expulsion decided upon may be imposed as of the calendar day following expiration of the three school business day period.

(4) If a timely appeal is taken to the board of directors or disciplinary appeal council, the suspension or expulsion may be imposed during the appeal period subject to the following conditions and limitations:

(a) A long-term suspension or nonemergency expulsion may be imposed during the appeal period for no more than ten consecutive school days or until the appeal is decided, whichever is the shortest period;

(b) An emergency expulsion may be continued during the appeal period for so long as the student continues to pose an immediate and continuing danger to the student, other students, or school personnel or an immediate and continuing threat of substantial disruption of the educational process of the student's school;

(c) Any days that a student is temporarily suspended or expelled before the appeal is decided shall be applied to the term of the student's suspension or expulsion and shall not limit or extend the term of the student's suspension or expulsion; and

(d) Any student subjected to a temporary suspension who returns to school before the appeal is decided shall be provided the opportunity upon his or her return to make up assignments and tests missed by reason of the suspension if:

(i) Such assignments or tests have a substantial effect upon the student's semester or trimester grade or grades; or

(ii) Failure to complete such assignments or tests would preclude the student from receiving credit for the course or courses.

(5) An appeal from any decision of a school board or disciplinary appeal council to impose or to affirm the imposition of a long-term suspension or an expulsion shall be to the courts. Whether or not the decision of a school board or disciplinary appeal council shall be postponed pending an appeal to superior court shall be discretionary with the school board or disciplinary appeal council except as ordered otherwise by a court.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-310, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.305.160. 97-08-019, 180-40-310, filed 3/25/97, effective 4/25/97. Statutory Authority: RCW 28A.305.160 and 1996 c 321. 96-15-098, 180-40-310, filed 7/22/96, effective 8/22/96; Order 13-77, 180-40-310, filed 10/18/77; Order 6-77, 180-40-310, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-315   Appeals -- Hearing before school board or disciplinary appeal council -- Procedures.   (1) If a notice of appeal to the school board of directors or school district disciplinary appeal council is received pursuant to WAC ((180-40-310)) 392-400-310(2) within the required three school business days, the board or council shall schedule and hold an informal conference to review the matter within ten school business days after the date of receipt of such appeal notice. The purpose of the meeting shall be to meet and confer with the parties in order to decide upon the most appropriate means of disposing of the appeal as provided for in this section. At that time the student or the student's parent(s) or guardian(s) or legal counsel shall be given the right to be heard and shall be granted the opportunity to present such witnesses and testimony as the board or council deems reasonable. The board or council shall agree to one of the following procedures prior to adjournment or recess:

(a) Study the hearing record or other material submitted and render its decision within ten school business days after the date of the informal conference, or

(b) Schedule and hold a meeting to hear further arguments based on the record before the board or council and render its decision within fifteen school business days after the date of the informal conference, or

(c) Schedule and hold a meeting within ten school business days after the date of the informal conference for the purpose of hearing the case de novo.

(2) In the event the school board of directors or school district disciplinary appeal council elects to hear the appeal de novo, the following rights and procedures shall govern the proceedings:

(a) The student and his or her parent(s) or guardian(s) shall have the right to:

(i) Inspect in advance of the hearing any documentary and other physical evidence which the school district intends to introduce at the hearing,

(ii) Question and confront witnesses, unless a school district witness does not appear and the nonappearance of the witness is excused by the person(s) hearing the case based upon evidence of good reason for doing so submitted by the school district. The evidence submitted by the school district must at a minimum establish either:

(A) That the district made a reasonable effort to produce the witness and is unable to do so; or,

(B) That it is not advisable for the student to appear due to an expectation and fear on the part of the responsible district official(s) or the student of retaliation against the student if he or she appears as a witness,

(iii) Present his or her explanation of the alleged misconduct, and

(iv) Make such relevant showings by way of witnesses and the introduction of documentary and other physical evidence as he or she desires,

(b) The designee(s) of the school district assigned to present the district's case shall have the right to inspect in advance of the hearing any documentary and other physical evidence that the student and his or her parent(s) or guardian(s) intend to introduce at the hearing, and

(c) Either a tape-recorded or verbatim record of the hearing shall be made.

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-315, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.305.160. 00-07-018, 180-40-315, filed 3/3/00, effective 4/3/00. Statutory Authority: RCW 28A.305.160 and 1996 c 321. 96-15-098, 180-40-315, filed 7/22/96, effective 8/22/96. Statutory Authority: 1979 1st ex.s. c 173 and c 201. 79-11-049 (Order 14-79), 180-40-315, filed 10/16/79; Order 6-77, 180-40-315, filed 6/2/77, effective 8/1/77.]


AMENDATORY SECTION(Amending WSR 06-14-009, filed 6/22/06, effective 6/22/06)

WAC 392-400-317   Appeals -- Discipline and short-term suspension grievances.   Any school district board of directors may delegate its authority to hear and decide discipline and short-term suspension grievance appeals filed pursuant to WAC ((180-40-240 and 180-40-253)) 392-400-240 and 392-400-253 to a school district disciplinary appeal council established pursuant to WAC ((180-40-310)) 392-400-310(1).

[Statutory Authority: 2006 c 263. 06-14-009, recodified as 392-400-317, filed 6/22/06, effective 6/22/06. Statutory Authority: RCW 28A.305.160 and 1996 c 321. 96-15-098, 180-40-317, filed 7/22/96, effective 8/22/96.]

Washington State Code Reviser's Office