WSR 03-21-011

EMERGENCY RULES

WASHINGTON STATE

SCHOOL FOR THE DEAF

[ Filed October 3, 2003, 10:51 a.m. ]

     Date of Adoption: September 23, 2003.

     Purpose: To adopt the procedures and standards set forth by the State Board of Education governing the imposition of emergency expulsion of students.

     Statutory Authority for Adoption: RCW 72.40.023.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: These rules are needed to ensure that the superintendent is able to immediately expel any student whose presence poses an immediate and continuing danger to self, other students, or school personnel or whose presence poses a continuing threat of substantial disruption of the educational process in order to preserve the health, safety and general welfare of students and staff at the School for the Deaf.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 4, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
     Effective Date of Rule: Immediately.

October 1, 2003

Todd S. Reeves

Superintendent

EMERGENCY ACTIONS
NEW SECTION
WAC 148-120-400   Emergency expulsion -- Limitations.   Notwithstanding any other provision of this chapter, a student may be expelled immediately by the 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 148-120-410 or the appeal provisions set forth in WAC 148-120-415.

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NEW SECTION
WAC 148-120-405   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 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 policy) request for a hearing must be received by the school 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 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 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.

     (3) If a request for a hearing is not received within the required ten school business day period, the school 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.

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NEW SECTION
WAC 148-120-410   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 148-120-405, the school 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 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. The evidence submitted by the school must at a minimum establish either:

     (i) That the school 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 school 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 assigned to present the school's case and/or the assistant attorney general 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 guild 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.

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NEW SECTION
WAC 148-120-415   Appeals -- Long-term suspension and expulsion.   Appeals from decisions rendered pursuant to WAC 148-120-236 and 148-120-410 which impose either a long-term suspension or an expulsion upon a student shall be governed as follows:

     (1) Appeals may be heard and decided by a disciplinary appeal council established by the Board. The disciplinary appeal council shall be appointed by the school board of trustees for fixed terms and shall consist of not less than three persons.

     (2) If an appeal is not taken to the 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.

     (3) If a timely appeal is taken to the 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.

     (4) An appeal from any decision of the 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 the 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.

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