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Students' right to due process is crucial in maintaining an open and transparent educational system. When a student's breach of the student code of conduct is so severe alternative school placement is warranted, allowing due process is an important step in helping determine why the student's behavior manifested so profoundly. While school administration is trained on the process, school counselors should also know the details of due process law. Counselors should be involved in the process as student feelings, thoughts, and emotions often play a major factor with extreme behavior. This Legal Guide is designed to help counselors play a larger role in the student discipline process, serve as an advocate for the student, and a mediator between the student administration.

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Understanding a student’s right to due process is important as students’ and families’ voices should be heard when facing alternative school placement or expulsion. Allowing the student and family explain the events leading up to the behavior in question allows administration, and counselors, a better understanding of the circumstances. As a result, administration and counseling teams can make a fair and justifiable discipline determination, determine the best avenues for helping the student, and provide resources for the family. This process also allows the counselor to develop a deeper relationship with the student and the student’s family as they provide guidance and advocate for the student.

An emerging issue with students’ right to due process is the evolving expectations and guidance for student behavior. Each year, the Texas congress updates and enacts new laws for behavior and alternative school placements. Keeping school personnel up to date with behavior expectations takes a dedicated legal team; however, when students with disabilities exhibit extreme behavior, the process becomes much more complicated. Due process hearings for students with an Emotional Disturbance (ED) are of the most complex as extreme behaviors may manifest because of the student's disability. Gomez et al. (2022) points out several issues regarding students with an ED diagnoses. The most common were ineffective Individualized Education Plans (IEP) and students’ Special Education program placement (Gomez et al., 2022). If ineffective IEPs and program placements become more prevalent, administrators and counselor have to keep a close eye on due process and special education laws for future changes.

Gomez, M. M., Morgan, V. R., Thomas Schanding, G., & Cheramie, G. M. (2022). Due process

issues for students with emotional disturbance. SAGE Open. 12. https://doaj.org/article/4337a7f7f901488dbc4098434c4c48b0

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The American School Counselor Association (2019) states school counselors are trained and have skills to promote positive and healthy student behavior. Although counselors are not disciplinarians, they should be involved in creating discipline procedures for the campus and individual students (American School Counselor Association, 2019). Furthermore, the American School Counselor Association (2019) declares, by policy, school counselors should serve as “neutral and resourceful consultants, mediators and student advocates” (para. 4). As a result, counselors should be heavily involved throughout the course of a student’s due process discipline hearing.

American School Counselor Association (2019). The school counselor and discipline. https://schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Discipline

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Summary:
·      Special Education parents filed a lawsuit against Virginia Department of Education (VDE) and Fairfax County Schools stating due process hearings largely favored the district.

·      The lawsuit states over the last 20 years, less than 2% of cases were won by families.

·      In the last 10 years, 83% of special education hearing officers never sided with the families.

·      Families are looking for various remedies such as an order for the VDE to implement procedures for fair due process hearings and to have an independent board oversee the hearing officer system.

·      Wins and loses are not so black and white, since due process hearings may review a variety of complaints, some are adjusted to the parent’s favor and some are not, the determination of winning and losing depends on the perspective of the parties involved.

Rationale:
This article was included in this guide to show due process produces must be fair, transparent, and may become litigious. While this case focuses on special education rather than school discipline, this could impact discipline decisions as special education students may be involved in discipline due process hearings that depict gaps in the student's IEP or program placement.

Arundel, K. (2022). Virginia lawsuit claims bias in special education rulings. K-12 Dive. https://www.k12dive.com/news/virginia-lawsuit-claims-bias-in-special-education-rulings/632535/

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Summary:

·      New Title IX rules were released by the U.S. Department of Education on schools must handle sexual misconduct allegations.

·      More rights will be given to those accused of sexual misconduct.

·      New rules define sexual harassment to include quid pro quo harassment by a school employee, sexual assault, dating violence, domestic violence, and stalking.

·      To ensure due process for the accused party, the rules require schools offer equal rights to appeal for both parties.

·      The rules are set to protect the accused from being unjustly prosecuted.

Rationale:

This article was chosen to demonstrate that students’ right to due process spans a wide range of behaviors. From drug/alcohol possession/consumption to sexual misconduct, students have a right to defined themselves in a fair due process hearing. As rules change, it is important to know accused students also have rights, and it is crucial their amendment rights are awarded otherwise school districts may be sued.

Shapero, J. (2020, May 6). New title IX rules to improve due process for students accused of

sexual misconduct. UWIRE. https://go-gale-com.easydb.angelo.edu/ps/i.do?p=AONE&u=txshracd2485&id=GALE%7CA622846043&v=2.1&it=r&sid=ebsco

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·       The Fifth Amendment of the U.S. Constitution

·       U.S. Const. amend. V

·       Constitutional Law

·       https://constitution.congress.gov/constitution/amendment-5/

·       The Fourth Amendment establishes that no person is guilty of a crime unless indited by a grand jury. Additionally, no person shall be deprived of life, liberty, or property without due process of law. In turn, this amendment also protects student’s rights of suspension or expulsion without a due process hearing.

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·       Student Discipline Due Process

·       Norval GOSS et al. v. Eileen LOPEZ et al, 419 U.S. 565 (1975). https://www.supremecourt.gov/pdfs/transcripts/1974/73-898_10-16-1974.pdf

·      Judicial Law

·      In this case, students were suspended from school for up to 10 days with no due process hearing. Parents sued Ohio public schools stating the suspensions were unconstitutional. The courts agreed with the parents stating the families were denied due process and were in violation of the Fourteenth Amendment, because the students were suspended without a due process hearing prior or within a reasonable time the suspension.

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·      Conference; Hearing; Review

·      Conference; Hearing; Review, Tex. Educ. Code § 37.009 (2015)

·      https://statutes.capitol.texas.gov/Docs/ED/htm/ED.37.htm#37.006

·      Statutory Law

·      School officials must schedule a due process conference no later than three days after a student is removed from class. The conference must be attended by the campus behavior coordinator, parent/guardian, and the student. The family must be provided written or oral notice of the reasons for removal, an explanation of the basis of removal, and an opportunity to respond to the allegations for removal. After the conference, the behavior coordinator shall order the placement of the student for a period of time and location consistent with the student code of conduct.

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·      Manifestation Determination and Review Conference

·      Americans With Disabilities Act of 1990, 42 U.S.C. § 300.530 (1990)

·      https://sites.ed.gov/idea/regs/b/e/300.530/e

·      Administrative Law

·      Within 10 school days of any disciplinary decision to change the placement of a student with disabilities, a Manifestation Determination and Review meeting must be held. Members of the student’s IEP team must be present along with the student. The meeting is a due process meeting to take the student’s disability into consideration.

During the meeting, the IEP meets to determine if the behavior in question was a direct result of the student’s disability and if the behavior occurred as a direct failure of the campus’s ability to implement the student’s IEP. If the committee determines neither condition was met, the student may assume their disciplinary consequence. If either, or both, condition is met, the IEP team must take action to remedy the plan or program placement.

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Slide 10: Policy or Rule from a School or Institution 

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Slide 10: Policy or Rule from a School or Institution 

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·      Student Discipline: Placement in a Disciplinary Alternative Education Setting

·      Plano Independent School District § FOC (LEGAL) (2022)

·      Administrative Law

·      https://pol.tasb.org/PolicyOnline/PolicyDetails?key=312&code=FOC#legalTabContent

·      No later than three days after a student is removed from campus, school officials must schedule a due process meeting to review the behavior in question. School officials, campus behavior campus coordinator, parents, and the student must be present where the reason and a basis for removal is reviewed, and the student/parents are allowed the opportunity to respond. The behavior campus coordinator considers the following mitigating factors: self-defense, intent or lack of intent at the time the student engage in the behavior, disciplinary history, and any disabilities that may impair the student’s decision making capacity. The meeting may be conducted without student/parents if the school made multiple and valid attempts to contact parents with no response.

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·      ASCA Ethical Standards or School Counselor

·      American School Counselor Association (2022).  ASCA ethical standards for school counselors.https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)

·      Ethical Standard: Respect the rights and responsibilities of custodial and noncustodial parents/guardians and, as appropriate, establish a collaborative relationship to facilitate and advocate for students’ maximum growth in the areas of academic, career and social/emotional development.

·      Students who display extreme behaviors that warrant alternative school placement must have people on campus for support and advocate for them. From experience, counselors are not always informed of student behavior and are rarely involved in due process meetings. This impedes counselors’ ability to partner with and advocate for students and families. It is important the school counselor advocates for their role in the discipline process, so students, and parents, receive the proper treatment, support, and resources to curve the behavior.

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·      Manifestation Determination in School Discipline

·      Center for Parent Information & Resources. (2022, Jan). Manifestation determination in school discipline.
https://www.parentcenterhub.org/manifestation/

·      Students with disabilities must be afforded due process for their behavior in addition to a meeting to review the student’s disability. The manifestation determination meeting examines if a direct correlation between the student’s behavior and their disability. This resource is designed for parents to better understand the process; however, this could serve as a helpful resource for school officials and counselors as it explains each step of the manifestation determination and review process.

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Slide 13: Bulleted list of Recommendation/Best Practices for Compliance 

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Slide 13: Bulleted list of Recommendation/Best Practices for Compliance 

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·      Counselors must advocate for their role in helping students through difficult situations including school discipline and due process meetings.

·      Meet with campus administration to discuss, and agree to, the role of the counselor with regards to the disciplinary process, due process meetings, and student advocacy with regards to discipline.

·      Deeply review the requirements of the Manifestation Determination and Review meeting for students with disabilities.

·      Familiarize yourself with due process procedures and know when and how to advocate for students.

·      Create a check list of the due process procedure for school officials to follow.

·      Include notifying the school counselor of the behavior and dates of the meeting(s) on the check list.

·      Develop weekly meetings with school administration and counseling teams to review student behavior/referral data and upcoming due process meetings.