Legal Mailbag – 11-27-19

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

Vaping at our high school has increased dramatically this year. It is hard to believe that students are still vaping, given the scary reports on the news about the related dangers. Apparently, however, these kids aren’t watching the CBS Evening News, because it seems that we catch another student vaping every other day.

We take such matters seriously, and we have imposed a boatload of out-of-school suspensions on these students so far this year. But I am having serious doubts whether this punitive approach is working, and maybe we should take a more therapeutic approach to address these vaping incidents. Specifically, I want to suggest to my superintendent that the next time we catch a student vaping for the first time, we forego suspension and just make the student do ten hours of community service and assign a research paper on the health hazards of vaping. But my superintendent is a bit of a know-it-all, and I don’t want to present my idea if he will tell me that it is dumb. What does Legal Mailbag think of my bright idea?

Second Guessing Myself

Dear Second Guessing:

It is great idea to deal with vaping in a more therapeutic way. The problem with imposing alternative punishments, however, is that you can’t. School officials have the authority to impose discipline only in prescribed ways, and the statutes do not authorize alternative punishments, whether you want to impose community service or make a student wash the principal’s car.

The statutes authorize school officials to impose discipline in only four different ways: removal, in-school suspension, out-of-school suspension and expulsion. For each of these punishments, the statutes prescribe limits and procedures. Classroom teachers can remove students, but only for up to ninety minutes. Only administrators can impose suspensions, either in-school or out of school, and you may do so only after giving the offending student an informal hearing “at which such pupil shall be informed of the reasons for the disciplinary action and given an opportunity to explain the situation.” Finally, only the board of education itself (or a designated hearing officer) may expel a student (an exclusion from school privileges for more than ten days, up to one school year). Imposing punishments other than those listed is not authorized.

That said, Legal Mailbag can help you get to your goal of taking a more therapeutic approach in appropriate circumstances. If you catch a student vaping, you should continue to treat the student’s conduct as a disciplinary matter in the first instance and provide the required due process. Once you are ready to impose a suspension, you can then propose community service and/or an assigned paper as an alternative to suspension. If the student and his/her parents agree with this alternative to suspension, you will have achieved your goal of taking a more therapeutic approach to the problem. Conversely, you can always fall back on traditional discipline if the parents do not want to play ball.

Legal Mailbag notes two other provisions of interest in Conn. Gen. Stat. § 10-233c, the statute authorizing suspension. For students being suspended for the first time, the statute specifically provides that “the administration may shorten the length of or waive the suspension period if the pupil successfully completes an administration-specified program and meets any other conditions required by the administration,” provided that the administration may not require the student or his/her parents to pay for such a program. In such cases, you are authorized to shorten or waive the expulsion period, and you may even agree that notice of the suspension, which you would otherwise be required to include in the student’s cumulative record until high school graduation, will be expunged when the student completes the program. By contrast, the voluntary approach recommended above would not be a suspension, and there would no related notification included in the cumulative file.

Finally, if you do go the disciplinary route and must suspend the student, Legal Mailbag reminds you that the statute requires that you give first consideration to in-school suspension. The statute provides that an out-of-school suspension may be imposed only if “(A) the administration determines that the pupil being suspended poses such a danger to persons or property or such a disruption of the educational process that the pupil shall be excluded from school during the period of suspension, or (B) the administration determines that an out-of-school suspension is appropriate for such pupil based on evidence of (i) previous disciplinary problems that have led to suspensions or expulsion of such pupil, and (ii) efforts by the administration to address such disciplinary problems through means other than out-of-school suspension or expulsion, including positive behavioral support strategies . . . .” Ultimately, the decision is for the administration to make, but it is important to consider the statutory presumption that a suspension will be in-school unless these other considerations warrant an out-of-school suspension.