Disciplinary Due Process - Delaware | State Policy Database

Delaware Administrative Code 14-616 Uniform Due Process Procedures for Alternative Placement Meetings and Expulsion Hearings

3.0 Preliminary Discipline Investigation & Reporting Requirements

3.1 Investigatory Procedures & Timeline
3.1.1 In any instance when student Disciplinary Action which may result in removal of the student out of the Regular School Program for one day or more is contemplated, the Principal shall conduct a preliminary investigation to determine if there is reasonable basis to pursue Disciplinary Action.
3.1.1.1 The Principal may remove the allegedly offending student from the general student population while conducting the preliminary investigation if the student's presence in the School Environment poses a threat to the health, safety, or welfare to persons or property within the School Environment, as determined by the Principal. Initial due process in accordance with subsection 4.2.1 of this regulation shall be provided.
3.1.1.2 When obtaining written statements from witnesses, reasonable efforts may be made to notify the Parent of each witness.
3.1.1.3 Reasonable efforts shall be made to include the allegedly offending student or Parent in the preliminary investigation.
3.1.2 The investigation shall be completed within three (3) school days of the date the incident in question was reported.
3.1.3 The Principal shall confiscate any contraband as defined in the Student's Code of Conduct or under the School's policy or state or federal law, which may be used for criminal/juvenile delinquency proceedings. Such contraband shall be labeled and secured in a locked area. Any confiscated contraband, or that reasonably understood to be illegal contraband, which may be used for criminal/juvenile proceedings shall be turned over to the appropriate police agency as soon as practicable.
3.2 Reporting Requirements
3.2.1 If the investigation reveals that there is reliable information that would lead a reasonable person to believe that a mandatorily reportable crime under 14 Del.C. §4112 has been committed, the Principal shall immediately notify the appropriate law enforcement agency of the incident.
3.2.1.1 All reports to the appropriate law enforcement agency must be made immediately by telephone or in person and shall be followed by a written report of the investigation within three (3) business days.
3.2.2 The Principal shall report all offenses listed as a mandatory report to the Department of Education under 14 Del.C. §4112 and 14 DE Admin. Code 601 within five (5) business days of the incident by completing the information in the eSchoolPlus discipline center or successor Delaware Department of Education approved student database management application.

4.0 Initial Due Process

4.1 A student shall be afforded initial due process rights for discipline procedures which result in the removal of the student for one day or more from the Regular School Program due to a violation of the school's Student Code of Conduct.
4.1.1 Prior to any removal of one day or more from the Regular School Program due to a violation of the school's Student Code of Conduct:
4.1.1.1 The student had prior opportunity to be informed in accordance with the established Student Code of Conduct rules and/or regulations.
4.1.1.2 The administrator/designee shall inform, orally or in writing, the student of the allegation(s) against him/her, the conduct which forms the basis of the allegation(s), and the policy, rule, or regulation violated.
4.1.1.3 The student shall be given an explanation of the evidence supporting the allegation(s) and an opportunity to present his/her side of the story including any evidence.
4.2 Due Process Delay Provision
4.2.1 A student whose presence in the School Environment poses a threat to the health, safety, or welfare to persons or property within the School Environment, as determined by the Principal, may be immediately removed from school provided that, as soon as practicable thereafter, the initial due process procedures outlined in subsection 4.1 of this regulation are followed.
4.3 In addition to the initial due process rights, a student who is recommended for Alternative Placement or Expulsion shall receive applicable additional due process rights as outlined in Sections 7.0, 10.0, and 11.0 of this regulation.

5.0 Suspensions

5.1 Short-term Suspension
5.1.1 The Principal, in accordance with the rules of the district/charter school, shall have the right to impose a Short-term Suspension on any student in the school who has violated the school's Student Code of Conduct. The duration of the Short-term Suspension shall not be more than ten (10) consecutive school days for any single conduct violation or combination of violations which occurred during a single disciplinary incident.
5.1.2 The Superintendent, in accordance with the rules of the district/charter school, shall have the right to temporarily extend a student's Short-term Suspension beyond the ten school day limit pending a district/charter Alternative Placement Meeting decision or the district/charter's Board of Education decision regarding an Expulsion hearing or other formalized Disciplinary Action hearing for the student.
5.1.2.1 A student whose Short-term Suspension has been temporarily extended beyond ten (10) consecutive school days shall receive Appropriate Educational Services beginning on the first day of the extension. Educational services shall continue until the student's district/charter Alternative Placement Meeting decision has been rendered or the district/charter's Board of Education decision regarding the student's Expulsion hearing or other formalized Disciplinary Action hearing has concluded. This does not preclude a district/charter from providing Appropriate Educational Services during a Short-term Suspension prior to the extension.
5.2 Long-term Suspension
5.2.1 The Superintendent, in accordance with the rules of the district/charter school, shall have the right to impose a Long-term Suspension on any student in the school who has violated the school's Student Code of Conduct's listed acts of misconduct as defined in 14 DE Admin. Code 614.3. The duration of the Long-term Suspension shall not exceed the number of school days in a school year for any single conduct violation or combination of violations which occurred during a single disciplinary incident.
5.3 Prior to any Suspension from school, the initial due process procedures outlined in subsection 4.1 of this regulation shall be followed unless temporarily delayed as allowed in subsection 4.2 of this regulation.
5.4 When a student receives a Suspension from school (in or out-of-school), reasonable attempts to provide verbal notification to the Parent shall be made by the Principal prior to the Suspension being served. Written notification of the Suspension and information regarding the districts/charters appeal or Grievance process shall be given or sent to the Parent as soon as practicable, but no later than three business days. The notification shall state the cause and duration of the Suspension.
5.4.1 The Parent or student may appeal the Suspension to the next administrative level in accordance with the district/charter's appeal or Grievance process.
5.5 Prior to the student's return from an out-of-school Suspension of three (3) school days or more, the Principal shall hold an in-person or phone conference with the Parent and student. A definite time, date, and place for the conference shall be designated by the Principal. The Principal may waive this conference requirement. [...]

10.0 Procedures for the Expulsion of Students

10.1 When it is alleged that a student committed a violation of the Student Code of Conduct and may be subject to a recommendation for Expulsion, the following procedures shall be followed.
10.1.1 The Principal shall conduct a preliminary investigation pursuant to Section 3.0 of this regulation to determine if there is reasonable basis to pursue Disciplinary Action.
10.1.2 If the investigation verifies that Disciplinary Action may be warranted, initial due process procedures outlined in Section 4.0 of this regulation shall be followed.
10.2 After the student has been afforded initial due process procedures, if the Principal decides that Disciplinary Action in the form of a recommendation for Expulsion will be made, the following procedures shall be followed:
10.2.1 Student will be given written notice of charges and the Parent shall be notified verbally and in writing as soon as practicable thereafter.
10.2.2 The student shall be given a Short-term Suspension pursuant to the criteria outlined in Section 6.0 of this regulation. The Parent shall be provided a copy of a Suspension form that includes a written notice of the Student Code of Conduct violation(s).
10.2.3 The Principal shall hold a Building Level Conference with the Parent and the student. The Principal shall explain to the Parent and the student the purpose of the meeting is to inform them: 1) of the recommendation for Expulsion; 2) that the student will be serving a Short-term Suspension pending the outcome of the Expulsion hearing and; 3) of the procedures that will take place as follow-up to the recommendation for Expulsion.
10.2.3.1 The conference shall be held by phone or in person.
10.2.3.2 The Principal shall have at least one other person present to take notes during the conference or shall have the conference audio recorded.
10.2.4 All documentation related to the recommendation for Expulsion shall be delivered to the Superintendent within two (2) business days of the Building Level Conference or seven (7) business days of the incident, whichever is sooner.
10.3 Expulsion Hearings
10.3.1 Upon receipt of a recommendation following the Building Level Conference, the Superintendent shall review documentation to affirm that appropriate discipline procedures were followed. The Superintendent shall, within ten (10) business days of the date of the incident, notify the student and the Parent by letter that a district-level Expulsion hearing will be held to consider the recommendation.
10.3.1.1 The Superintendent shall not have been a participant in the disciplinary investigation or Building Level Conference resulting in the recommendation for Expulsion.
10.3.2 Written notice shall, at a minimum, be sent by regular U.S. and certified mail to the Parent describing the circumstances which led to the recommendation for Expulsion and shall give the date, time, and location of the hearing.
10.3.3 The hearing shall be held not less than seven (7) business days or more than twenty (20) business days after receipt of written notice. The written notice shall be deemed to be received on the fourth business day following the day of mailing. This time period may be waived by agreement of the parties. A copy of the documentation shall be made available, upon request, to the student and Parent at the district/charter school office prior to the mailing.
10.3.4 If requested, the student and Parent will also be given a copy of the following:
10.3.4.1 The reason(s) for the recommendation;
10.3.4.2 The name(s) of witnesses who may appear; and
10.3.4.3 Copies of information that may be submitted as evidence.
10.3.5 The district/charter shall receive written Parent permission for any witness who is a minor.
10.3.6 The hearing shall be conducted by a district/charter Board of Education or Hearing Officer.
10.3.7 The Board of Education or Hearing Officer shall have full authority to admit or exclude evidence.
10.3.7.1 Evidence presented at the Expulsion hearing may include, but is not limited to, witness statements, police or Attorney General's Reports, and photocopies of evidence.
10.3.7.2 The Board of Education or Hearing Officer is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure except as herein stated.
10.3.7.3 The Board of Education or Hearing Officer may exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence.
10.3.7.4 The Board of Education or Hearing Officer may limit unduly repetitive proof, rebuttal and cross examination. 10.3.8 In conducting the hearing, the district/charter school shall submit evidence first followed by the response of the student, if any.
10.3.8.1 Further evidence by either party may be presented at the hearing if the Board of Education or Hearing Officer determines such evidence is necessary.
10.3.9 The Superintendent presenting the case on the part of the district/charter school shall not testify.
10.3.10 The hearing shall be recorded in a manner that will permit transcription.
10.3.11 The student shall have the following rights:
10.3.11.1 To be represented by legal counsel at the student's expense;
10.3.11.2 To cross-examine witnesses;
10.3.11.3 To testify and produce witnesses on his/her behalf; and
10.3.11.4 To obtain, at the student's expense, a copy of the transcript of the hearing.
10.3.12 In lieu of a formal Expulsion hearing, a student may elect to waive the hearing and admit to the student's violation charge(s). The student and Parent shall submit a signed written hearing waiver which indicates that the student is knowingly and voluntarily waiving their right to the hearing. Such election may be exercised until the commencement of the hearing. This waiver does not absolve the student from required consequences under Federal or State Law or the Student Code of Conduct.
10.4 Expulsion Decision by Board of Education
10.4.1 Decision after Hearing Officer Presides over Hearing
10.4.1.1 Within five (5) business days following the conclusion of an Expulsion hearing conducted by a Hearing Officer, a written report shall be prepared by the Hearing Officer for the Superintendent.
10.4.1.1.1 The report shall frame the issues, summarize the evidence, state conclusions of fact, and make a recommendation as to whether the student should be expelled.
10.4.1.2 The Board of Education shall make its decision at the next scheduled public Board Meeting or additional scheduled public board meeting for the sole purpose of deciding on the student disciplinary matter in question.
10.4.1.2.1 The Board shall conduct a review of the Hearing Officer's recommendation. The Board may accept, reject, or modify the recommendation of the Hearing Officer. The Board's decision shall be in writing in accordance with subsection 10.4.5 of this regulation and shall be based solely upon the report from the Hearing Officer and the record of the Expulsion hearing, if any.
10.4.2 Decision after Board of Education Presides over Hearing
10.4.2.1 Following the conclusion of an Expulsion hearing conducted by the Board of Education, the Board shall frame the issues, summarize the evidence, state conclusions of fact and render its decision.
10.4.2.2 The Board's decision shall be in writing in accordance with subsection 10.4.5 and shall be based solely upon the record of the Expulsion hearing of which it presided over.
10.4.3 Decision After Waiving of Hearing Rights and Admission to Violation Charges
10.4.3.1 Within five (5) business days following the waiving of hearing rights and admission of violation charges, the Superintendent shall prepare a report for the Board of Education's action at it's next public board meeting or an additional scheduled public board meeting for the sole purpose of deciding on the student disciplinary matter in question.
10.4. 4 Eligible expelled students shall be placed in a Consortium Discipline Alternative Program in accordance with 14 Del.C. §1604 and 14 DE Admin. Code 611. The Board shall determine if the students not eligible for placement in a Consortium Discipline Alternative Program shall be expelled with or without Appropriate Educational Services.
10.4. 5 Any decision to expel a student shall be reported to the Delaware Department of Education within five (5) business days of the Board's decision to expel. When a Board of Education expels a student, but determines the student shall not be placed at a Consortium Discipline Alternative Program, the written decision shall address with specificity the reason for non-placement and the evidence in support thereof. Such decisions shall be submitted to the Delaware Department of Education's Office of School Climate and Discipline within five business days of such decision, with a copy to the student's Parent.
10.4. 6 Except as is otherwise provided herein, within ten (10) business days of the decision by the Board, the Board, through its designee, shall submit its decision to the Superintendent and Parent and student in writing. The written decision shall include notice of the right to appeal to the State Board of Education.
10.5 Calculation of Time
10.5.1 In calculating the period of time for the term of the Expulsion, school days will be used. Students receiving residential services from a Department of Services for Children, Youth and Their Families (DSCYF) program shall have the amount of school days served in such program counted as part of the calculation of time for an Expulsion. This does not preclude a district/charter from transitioning a student from a YRS program to the Regular School Program through an Alternative Program. However, transition through an Alternative Program is not required.

Policy Type

Regulation

Source

Delaware Administrative Code

Category

Disciplinary Due Process

Category

Disciplinary Due Process

Delaware Administrative Code 14-616 Uniform Due Process Procedures for Alternative Placement Meetings and Expulsion Hearings

Delaware Code 14-122. Rules and regulations [Effective until Aug. 1, 2019]

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