Hawaii - Disciplinary Due Process: Program Requirement

Area: 
Program Requirement
Policy Type: 
Regulation
Summary: 

State law provides comprehensive assurances of due process for students facing disciplinary action.

H.A.R. CHAPTER 19 STUDENT MISCONDUCT, DISCIPLINE, SCHOOL SEARCHES AND SEIZURES, REPORTING OFFENSES, POLICE INTERVIEWS AND ARRESTS, AND RESTITUTION FOR VANDALISM

§ 8-19-9. Due process for suspensions exceeding ten days, disciplinary transfers, and dismissal.

(a) If, based upon the investigation, the principal or designee believes that a student engaged in an activity which constitutes a violation of this chapter, and if the principal or designee recommends that serious discipline other than crisis removal be imposed, the principal or designee shall immediately notify the complex area superintendent to initiate disciplinary proceedings by obtaining verbal authorization from the complex area superintendent.

(b) Upon obtaining verbal authorization from the complex area superintendent, the principal or the designee will make a good faith effort to inform the parent of:

  • (1) The serious discipline incident,

  • (2) The opportunity to appeal, and

  • (3) That the disciplinary action will be implemented immediately.

(c) Within three school days of the verbal authorization from the complex area superintendent, the principal or designee shall mail a written notice of the serious discipline incident with the appeal form to the parent. A facsimile signature of or an electronic approval confirmation of the complex area superintendent on the serious discipline incident form is sufficient. The written notice of serious discipline shall contain the following statements:

  • (1) Allegations of the specific acts committed by the student that form the basis of the serious discipline;

  • (2) The allegations of the specific acts that were substantiated;

  • (3) A statement of the disciplinary action(s); and

  • (4) A statement that the parent has a right to an appeal to the complex area superintendent at which time the parent may present evidence, call and cross-examine witnesses, and be represented by legal counsel and to the extent the parent provides a written notice of legal representation at least ten calendar days prior to the appeal.

  • (5) If the student or parent would like to file an appeal, the appeal must be submitted in writing and received by the complex area superintendent by the close of business of the seventh school day from the date of the issued serious discipline notice. The student shall be permitted to attend the school of the student pending the appeal unless the principal finds the continued presence of the student creates a substantial risk to self or others or to the rights of other students to pursue their education free from disruption. However, the student shall not participate in any extracurricular activities, including but are not limited to athletics, trips, or clubs.

(d) Upon receipt of a written request for an appeal, the complex area superintendent shall, within ten school days, schedule an appeal and shall inform the parent of the date, time, and place. Written notice of the appeal shall be mailed to the parent and principal or designee at least fifteen calendar days before the appeal. The appeal shall be conducted by the complex area superintendent or by an impartial department of education person, or an impartial designee, who may be an official of the department, designated by the complex area superintendent. The appeal shall be conducted as follows:

  • (1) The appeal shall be closed unless the student or parent requests that it be public;
  • (2) Parent and principal or principal’s designee have the right to present evidence, cross-examine witnesses, and submit rebuttal testimony;
  • (3) Parent and principal or principal’s designee may be represented by legal counsel;
  • (4) The complex area superintendent or the impartial department of education designee need not follow the formal rules of evidence;
  • (5) The complex area superintendent or the impartial department of education designee shall impartially weigh the evidence presented;
  • (6) A parent, at the parent’s own expense, may record or obtain a copy of the department’s tape recording, or transcript of the department’s tape recording of the proceedings only if requested for purposes of court review. The complex area superintendent or the impartial department of education designee shall record a transcript or tape recording of the proceedings;
  • (7) The complex area superintendent shall no later than seven school days from the close of the appeal render a decision in writing stating clearly the action(s) to be taken and the bases for such actions. The written decision shall be mailed or personally delivered to the parent, the student’s attorney of record, and a copy to the school. If the disciplinary action is upheld, the complex area superintendent shall indicate the total number of suspension days and within the suspension beginning and ending dates take into consideration the number of suspension days the student may have already served.

(e) The parent may appeal the decision of the complex area superintendent by providing written notice of their appeal and a specific statement whether they are requesting a hearing to the superintendent of education or designee identifying the specific issues and arguments with supporting documents and evidence the individual is appealing. The written appeal shall be delivered to the superintendent of education or designee within seven school days of the date of the complex area superintendent’s written decision. If no specific request is made for a hearing, the superintendent of education or designee shall render a decision based upon the entire record of the proceedings of the complex area superintendent and the parent submitted on the appeal. The superintendent of education or designee shall render a final written decision. The student shall be permitted to attend the school of the student pending the appeal unless the complex area superintendent finds that the continued presence of the student creates a substantial risk to self or others or to the rights of other students to pursue their education free from disruption. Where the student is to be excluded from school pending the appeal, the superintendent of education or designee shall render a decision within twenty-one calendar days of the date of the receipt of the appeal.

(f) Upon written receipt of an appeal, from the parent or the parent’s legal counsel, the written decision of the complex area superintendent and all documents and recordings from the proceeding provided for in subsection (d) of this section shall be forwarded to the superintendent of education or designee within ten calendar days. The superintendent of education or designee shall examine the evidence and render a decision based on the disciplinary action within fourteen calendar days. The decision shall be personally delivered or mailed to the parent or attorney of record. In addition, the parent shall be informed of the right to submit written exceptions to the decision and to present argument to the superintendent of education or designee. Written exceptions and the request to present argument to the superintendent of education or designee must be received within five calendar days of the date of the decision rendered by the superintendent of education or designee. A parent may submit written exceptions and waive the right to present argument; however, there will be no right to present argument without first submitting written exceptions. If the parent has timely submitted written exceptions and requests the right to present the argument, the superintendent of education or designee shall, within two school days of receiving the request to present argument, inform the parent of the specific date, time, and place to present their arguments. The date for presentation of argument shall be no less than five calendar days and no more than fourteen calendar days from the date of the notice informing the parent of the specific date, time, and place to present their arguments. The superintendent of education or designee shall mail a written decision to the parent or the attorney of record within fourteen calendar days of the date of the presentation of the argument or in the case where the parent has waived the parent’s right to present argument, within fourteen calendar days of the receipt of the parent’s written exceptions. [Eff 9/1/82; am and ren §8-19-8, 5/23/86; am and comp 7/19/93; am and comp 5/19/97; am and comp 2/22/01; am and comp 9/10/09] (Auth: HRS §302A-1112) (Imp: HRS §302A-1112)

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