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OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION
NOTICE OF PROPOSED RULEMAKING
The State Superintendent of Education, pursuant to the authority set forth in section 3(b)(11) of the State Education Office Establishment Act of 2000, effective October 21, 2000 (D.C. Law 13-176; D.C. Official Code § 38-2602(b)(11)) (2009 Supp.), hereby gives notice of her intent to adopt, in not less than thirty (30) days after the publication of this notice in the D.C. Register, a new Chapter 25, entitled “Standards for Student Code of Conduct”, of Subtitle A (Office of the State Superintendent of Education) of Title 5 (Education) of the District of Columbia Municipal Regulations (DCMR). This proposed rulemaking takes into consideration public comments received on previous Notices of Proposed Rulemaking published in the D.C. Register on February 6, 2009 (56 DCR 1301) and on November 13, 2009 (56 DCR 8855), as well as comments made during a public hearing held on January 6, 2010, before the District of Columbia State Board of Education.
The proposed rules address state-level standards for student conduct policies and procedures at local education agencies (LEAs) in the District of Columbia. The proposed rules recognize there must be a balance between individual rights and responsibilities and the rights and responsibilities of the school community. The proposed rules give LEAs flexibility to develop standardized expectations relating to student conduct and disciplinary responses consistent with the state standards. LEAs are encouraged to establish policies and procedures with a broad range of strategies and interventions. The Office of the State Superintendent of Education (OSSE) recognizes the necessity to make available to LEAs ongoing state-level guidance to assist with implementation of this chapter.
Consistent with best practices and a policy letter dated July 31, 2009, from the U.S. Secretary of Education to chief state education officers, these revisions address the appropriate and selective use of seclusion and restraint techniques in schools. Finally, new to this proposal is a provision to address aggressive behavior such as bullying.
Subtitle A, Title 5 of the DCMR is amended to add a new Chapter 25 to read as follows:
CHAPTER 25 STANDARDS FOR STUDENT CODE OF CONDUCT
2500 AUTHORITY AND PURPOSE
2500.1 The legal authority for this chapter includes section 3(b)(11) of the State Education Office Establishment Act of 2000, effective October 21, 2000, (D.C. Law 13-176; D.C. Official Code § 38-2602(b)(11) (2009 Supp.)).
2500.2 The purpose of this chapter is to provide uniform standards for the development of policies and procedures governing student conduct and discipline in the District of Columbia public schools.
2500.3 This chapter establishes standards by which an LEA may develop a broad spectrum of strategies to address inappropriate student conduct.
2501 POLICIES AND PROCEDURES
2501.1 Each LEA shall adopt and implement written policies and procedures governing student conduct and discipline. The policies and procedures shall be consistent with the standards set forth in this chapter.
2501.2 The disciplinary responses to inappropriate student conduct contained in the policies and procedures of the LEA shall be fair and appropriate, minimize disruption to a student’s instructional program, and foster the health and safety of all students.
2501.3 LEAs are encouraged to utilize school-wide strategies for prevention, intervention, and remediation of inappropriate student behavior to meet the needs of the school community and promote student academic achievement.
2501.4 The policies and procedures of the LEA shall include the following basic elements:
(a) A statement of purpose and philosophy regarding student conduct;
(b) Standards for student conduct, including prohibited student conduct; the range of disciplinary action which may be imposed for prohibited conduct; the criteria for disciplinary actions, which shall include the utilization of a progressive approach to discipline; and interventions and strategies to prevent and address misbehavior which take into consideration a student’s developmental level among other factors; and
(c) Written policies and procedures to address:
(1) Maintenance of disciplinary records and information;
(2) Distribution of the student disciplinary policies and procedures to students and their parents or guardians within thirty (30) days after the first (1st) day of each school year or upon registration;
(3) Access to the policies and procedures through an effective means of communication such as printed copies or electronic links to copies of the policy and procedure on the LEA’s website consistently;
(4) Use of student suspension in compliance with clearly defined procedures;
(5) Use of student expulsion in compliance with clearly defined procedures in extreme and rare occasions and as a response to only the most serious misconduct or behaviors, which may cause serious physical injury or are a major disruption to the school environment;
(6) Compliance with federal and District laws which require LEAs to expel from school for a period of not less than one (1) year a student who is determined to have brought a firearm to school or to have possessed a firearm at a school. The chief administrative officer of the LEA may modify the expulsion requirement on a case-by-case basis, if that modification is in writing;
(7) Prohibitions with regard to bullying conduct. The policies and procedures shall affirm that the LEA does not tolerate bullying of any kind;
(8) Re-entry of students to school upon completion of an off-site suspension or expulsion;
(9) Establishment and timely distribution of an education plan for a student who is suspended or expelled that enables the student to maintain academic work on pace with work that the student would have been completed if the student was not subject to any disciplinary action;
(10) Applicability of the student conduct and disciplinary policies during regularly-scheduled school hours and at all school-sponsored events, as specified by the LEA; and
(11) Compliance with the Individuals with Disabilities Education Act, and regulations promulgated pursuant to the IDEA, including 20 U.S.C. §1412(a)(5) and 34 C.F.R. §300.530 and §300.504, and utilization of procedural safeguards to prevent disproportional disciplinary actions against the population of individuals covered by the IDEA.
2501.5 The policies and procedures of the LEA shall provide that:
(a) An in-school suspension shall not exceed fifteen (15) school days;
(b) An off-site school suspension shall not exceed ninety (90) school
days; and
(c) A full suspension shall not exceed ninety (90) school days.
2502 RESTRAINT AND SECLUSION
2502.1 The use of restraint or seclusion is prohibited except in an emergency circumstance, which is defined as a circumstance that meets both of the following criteria:
(a) Intervention is necessary to protect the student or another person from imminent, serious physical harm; and
(b) Other less intrusive, nonphysical interventions have failed or have been determined inappropriate.
2502.2 For a student with a behavior intervention plan or an Individualized Education Program (IEP), restraint may be used only when it is included in the student’s IEP or a Section 504 Accommodation Plan under the Rehabilitation Act of 1973. The restraint must be used to address specific behaviors under defined circumstances and must be implemented by appropriate staff.
2502.3 Any restraint or seclusion shall be applied only by school personnel who are trained in the appropriate use of specific authorized techniques. Any chemical restraint must be ordered by a physician, determined to be medically necessary, and administered as detailed in the medical action plan.
2502.4 A space used for seclusion shall, at a minimum, be free of objects and fixtures with which a student could self-inflict bodily harm, shall provide school personnel an adequate view of the student from an adjacent area, and shall provide adequate lighting and ventilation.
2502.5 School personnel must be able to see the student placed in seclusion at all times and must speak with the student at least once every ten (10) minutes.
2502.6 After thirty (30) minutes of seclusion, the school director, head of special education, or other senior member of the school’s staff shall personally observe the student to assess the need for continued seclusion.
2502.7 No seclusion shall continue longer than one (1) hour.
2502.8 Each LEA shall maintain written incident reports for each incident involving a restraint or seclusion. The reports shall be placed in the student’s permanent file and maintained along with disciplinary records.
2503 NOTIFICATION AND HEARING
2503.1 The student conduct and discipline policies and procedures of each LEA shall provide for the proper and timely notification to the student and his or her parent(s) or guardian(s) with regard to student misconduct.
2503.2 The student conduct and discipline policies and procedures of each LEA shall provide procedural safeguards with regard to student misconduct, including the following:
(a) Notification to all appropriate parties provided at a reasonable amount of time prior to a hearing setting forth the following information:
(1) Written description of the charge(s) of misconduct;
(2) Basis for the disciplinary action;
(3) An explanation of the student’s rights, including the right to a hearing and appeal; and
(4) A description of the disciplinary process, procedures, and potential consequences.
(b) Procedures before a neutral decision maker including the opportunity for conferences, a hearing, and appeal.
2504 REPORTS
2504.1 Each LEA shall maintain a copy of its disciplinary policies and procedures. The LEA policies and procedures shall be made available to the Office of the State Superintendent of Education upon request. An LEA shall provide to OSSE, upon request, all information necessary to comply with any requests made by OSSE pursuant to this chapter
2504.2 Each LEA shall ensure that all data and information related to disciplinary actions are reported in a manner that complies with all requirements specified by the Office of the State Superintendent of Education and the U.S. Department of Education.
2599 DEFINITIONS
2599.1 For the purposes of this chapter, the following terms shall have the meanings ascribed.
Alternative setting or school program – means an educational program other than that in which the student was placed prior to disciplinary action.
Bullying – means intentional verbal, physical, or written conduct that creates a hostile environment. Bullying includes actions motivated by an imbalance of power based on a student’s actual or perceived personal characteristics, behaviors, or beliefs, or motivated by the pupil’s association with another person and based on the other person’s characteristics, behaviors, or beliefs. This also includes any type of use of information and communication technologies to exhibit this behavior known as cyber-bullying.
Expulsion – means the denial of the right of a student to attend a school or program, including all classes and school activities, except alternative settings, for one (1) calendar year or such shorter period as deemed appropriate.
In–school suspension – means the mandatory assignment of a student to attend an assigned alternative school program in lieu of previously assigned curricular activities for a period not to exceed fifteen (15) school days.
Individuals with Disabilities Education Act, or IDEA - means the Individuals with Disabilities Education Act, approved November 29, 1975 (89 Stat. 773; 20 U.S.C. §1400 et seq.).
Local education agency or LEA – means the District of Columbia Public School system or any individual or group of public charter schools operated under a single charter in the District of Columbia.
Medical action plan- means a medical treatment plan for an individual student that is developed and submitted to a school in accordance with section 4 of the Student Access to Treatment Act of 2007, effective February 2, 2006 (D.C. Law 17-107; D.C. Official Code §38-651.03)).
Off-site school suspension – means the mandatory assignment of a student to attend another appropriate site or alternative school program in lieu of previously assigned activities for a period not to exceed ninety (90) days.
Restraint - the use of force to limit a student’s freedom of movement.
Rehabilitation Act of 1973- means the Rehabilitation Act of 1973, approved September 26, 1973; (87 Stat 394; 29 U.S.C. § 794).
Seclusion – means the involuntary confinement of a student alone in an area from which he or she is physically prevented from leaving.
Suspension – means the denial of the right of a student to attend any school or program, including all classes and school activities, except in an approved alternative setting, in no event exceeding ninety (90) school days pursuant to the provisions of this chapter.
Weapon - includes, but is not limited to, the following: weapons enumerated in D.C. Official Code § 22-4514 (2001), Act of July 8, 1932, (ch. 465, 47 Stat. 650); firearms as enumerated in 18 U.S.C. § 921(a) (2000), approved, June 19, 1968, (82 Stat 226); and knives, razors, martial, arts devices and other weapons or instruments designed to be or commonly used as weapons.
All persons desiring to comment on the subject matter of this proposed rulemaking should file comments in writing not later than thirty (30) days after the date of publication of this notice in the D.C. Register to the following website at osse.publiccomment@dc.gov; or to the Office of the State Superintendent of Education, Attn.: Jessica Morffi, re: Student Code of Conduct; 810 First Street, NE 9th Floor Washington, DC 20002. Additional copies of this rule are available from the above address and on the Office of the State Superintendent of Education website at www.osse.dc.gov.
