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Appendix II: Pupil Fair Dismissal Act
121A.40 Citation.
       Sections 121A.40 to 121A.56 may be cited as the "Pupil Fair Dismissal Act."
Definitions.
       Subdivision 1. Applicability. As used in sections 121A.40 to 121A.56, the terms defined in this section shall have the meanings assigned them.
       Subd. 2. Dismissal."Dismissal" means the denial of the current educational program to anypupil, including exclusion, expulsion, and suspension. It does notinclude removal from class.
       Subd. 3. District. "District" means any school district.
       Subd. 4. Exclusion."Exclusion" means an action taken by the school board to preventenrollment or reenrollment of a pupil for a period that shall notextend beyond the school year.
       Subd. 5. Expulsion."Expulsion" means a school board action to prohibit an enrolled pupilfrom further attendance for up to 12 months from the date the pupil isexpelled.
       Subd. 6. Parent. "Parent"means (a) one of the pupil's parents, (b) in the case of divorce orlegal separation, the parent or parents with physical custody of thepupil, including a noncustodial parent with legal custody who hasprovided the district with a current address and telephone number, or(c) a legally appointed guardian. In the case of a pupil with adisability under the age of 18, parent may include a district-appointedsurrogate parent.
       Subd. 7. Pupil. "Pupil"means any student: (1) without a disability under 21 years of age; or(2) with a disability until September 1 after the child with adisability becomes 22 years of age; (3) and who remains eligible toattend a public elementary or secondary school.
       Subd. 8. School. "School" means any school defined in section 120A.05, subdivisions 9, 11, 13, and 17.
       Subd. 9. School board. "School board" means the governing body of any school district.
       Subd. 10. Suspension."Suspension" means an action by the school administration, under rulespromulgated by the school board, prohibiting a pupil from attendingschool for a period of no more than ten school days. If a suspension islonger than five days, the suspending administrator must provide thesuperintendent with a reason for the longer suspension. This definitiondoes not apply to dismissal from school for one school day or less,except as provided in federal law for a student with a disability. Eachsuspension action may include a readmission plan. The readmission planshall include, where appropriate, a provision for implementingalternative educational services upon readmission and may not be usedto extend the current suspension. Consistent with section 125A.091,subdivision 5, the readmission plan must not obligate a parent toprovide a sympathomimetic medication for the parent's child as acondition of readmission. The school administration may not imposeconsecutive suspensions against the same pupil for the same course ofconduct, or incident of misconduct, except where the pupil will createan immediate and substantial danger to self or to surrounding personsor property, or where the district is in the process of initiating anexpulsion, in which case the school administration may extend thesuspension to a total of 15 days. In the case of a student with adisability, the student's individual education plan team must meetimmediately but not more than ten school days after the date on whichthe decision to remove the student from the student's current educationplacement is made. The individual education plan team and otherqualified personnel shall at that meeting: conduct a review of therelationship between the child's disability and the behavior subject todisciplinary action; and determine the appropriateness of the child'seducation plan.
       The requirements of the individualeducation plan team meeting apply when: (1) the parent requests ameeting; (2) the student is removed from the student's currentplacement for five or more consecutive days; or (3) the student's totaldays of removal from the student's placement during the school yearexceed ten cumulative days in a school year. The school administrationshall implement alternative educational services when the suspensionexceeds five days. A separate administrative conference is required foreach period of suspension.
       Subd. 11. Alternative educational services."Alternative educational services" may include, but are not limited to,special tutoring, modified curriculum, modified instruction, othermodifications or adaptations, instruction through electronic media,special education services as indicated by appropriate assessment,homebound instruction, supervised homework, or enrollment in anotherdistrict or in an alternative learning center under section 123A.05selected to allow the pupil to progress toward meeting graduationstandards under section 120B.02, although in a different setting.
121A.42 Policy.
       No public school shall deny dueprocess or equal protection of the law to any public school pupilinvolved in a dismissal proceeding which may result in suspension,exclusion, or expulsion.
121A.43 Exclusion and expulsion of pupils with a disability.
       When a pupil who has an individualeducation plan is excluded or expelled under sections 121A.40 to121A.56 for misbehavior that is not a manifestation of the pupil'sdisability, the district shall continue to provide special educationand related services after a period of suspension, if suspension isimposed. The district shall initiate a review of the pupil's individualeducation plan and conduct a review of the relationship between thepupil's disability and the behavior subject to disciplinary action anddetermine the appropriateness of the pupil's education plan beforecommencing an expulsion or exclusion.
121A.44 Expulsion for possession of firearm.
       (a) Notwithstanding the timelimitation in section 121A.41, subdivision 5, a school board must expelfor a period of at least one year a pupil who is determined to havebrought a firearm to school except the board may modify this expulsionrequirement for a pupil on a case-by-case basis. For the purposes ofthis section, firearm is as defined in United States Code, title 18,section 921.
       (b) Notwithstanding chapter 13, astudent's expulsion or withdrawal or transfer from a school after anexpulsion action is initiated against the student for a weaponsviolation under paragraph (a) may be disclosed by the school districtinitiating the expulsion proceeding. Unless the information isotherwise public, the disclosure may be made only to another schooldistrict in connection with the possible admission of the student tothe other district.
121A.45 Grounds for dismissal.
       Subdivision 1. Provision ofalternative programs. No school shall dismiss any pupil withoutattempting to provide alternative educational services before dismissalproceedings, except where it appears that the pupil will create animmediate and substantial danger to self or to surrounding persons orproperty.
       Subd. 2. Grounds for dismissal. Apupil may be dismissed on any of the following grounds: (a) willfulviolation of any reasonable school board regulation. Such regulationmust be clear and definite to provide notice to pupils that they mustconform their conduct to its requirements; (b) willful conduct thatsignificantly disrupts the rights of others to an education, or theability of school personnel to perform their duties, or schoolsponsored extracurricular activities; or (c) willful conduct thatendangers the pupil or other pupils, or surrounding persons, includingschool district employees, or property of the school.
       Subd. 3. Parent notification andmeeting. If a pupil's total days of removal from school exceeds tencumulative days in a school year, the school district shall makereasonable attempts to convene a meeting with the pupil and the pupil'sparent or guardian before subsequently removing the pupil from schooland, with the permission of the parent or guardian, arrange for amental health screening for the pupil. The district is not required topay for the mental health screening. The purpose of this meeting is toattempt to determine the pupilÕs need for assessment or other servicesor whether the parent or guardian should have the pupil assessed ordiagnosed to determine whether the pupil needs treatment for a mentalhealth disorder.
121A.46 Suspension procedures.
       Subdivision 1. Informaladministrative conference before suspension. The school administrationshall not suspend a pupil from school without an informaladministrative conference with the pupil. The informal administrativeconference shall take place before the suspension, except where itappears that the pupil will create an immediate and substantial dangerto self or to surrounding persons or property, in which case theconference shall take place as soon as practicable following thesuspension.
       Subd. 2. Administrator notifiespupil of grounds for suspension. At the informal administrativeconference, a school administrator shall notify the pupil of thegrounds for the suspension, provide an explanation of the evidence theauthorities have, and the pupil may present the pupil's version of thefacts.
       Subd. 3. Written notice of groundsfor suspension. A written notice containing the grounds for suspension,a brief statement of the facts, a description of the testimony, areadmission plan, and a copy of sections 121A.40 to 121A.56, shall bepersonally served upon the pupil at or before the time the suspensionis to take effect, and upon the pupil's parent or guardian by mailwithin 48 hours of the conference. The district shall make reasonableefforts to notify the parents of the suspension by telephone as soon aspossible following suspension. In the event a pupil is suspendedwithout an informal administrative conference on the grounds that thepupil will create an immediate and substantial danger to surroundingpersons or property, the written notice shall be served upon the pupiland the pupil's parent or guardian within 48 hours of the suspension.Service by mail is complete upon mailing.
       Subd. 4. Suspension pendingexpulsion or exclusion hearing. Notwithstanding the provisions ofsubdivisions 1 and 3, the pupil may be suspended pending the schoolboard's decision in the expulsion or exclusion hearing; provided thatalternative educational services are implemented to the extent thatsuspension exceeds five days.
121A.47 Exclusion and expulsion procedures.
       Subdivision 1. Requiring ahearing; pupil may waive hearing. No exclusion or expulsion shall beimposed without a hearing, unless the right to a hearing is waived inwriting by the pupil and parent or guardian. The action shall beinitiated by the school board or its agent.
       Subd. 2. Written notice. Writtennotice of intent to take action shall: (a) be served upon the pupil andthe pupil's parent or guardian personally or by mail; (b) contain acomplete statement of the facts, a list of the witnesses and adescription of their testimony; (c) state the date, time, and place ofthe hearing; (d) be accompanied by a copy of sections 121A.40 to121A.56; (e) describe alternative educational services accorded thepupil in an attempt to avoid the expulsion proceedings; and (f) informthe pupil and parent or guardian of the right to: (1) have arepresentative of the pupil's own choosing, including legal counsel, atthe hearing. The district shall advise the pupil's parent or guardianthat free or low-cost legal assistance may be available and that alegal assistance resource list is available from the department ofchildren, families, and learning; (2) examine the pupil's recordsbefore the hearing; (3) present evidence; and (4) confront andcross-examine witnesses.
       Subd. 3. Hearing schedule. Thehearing shall be scheduled within ten days of the service of thewritten notice unless an extension, not to exceed five days, isrequested for good cause by the school board, pupil, parent orguardian.
       Subd. 4. Convenient time and placeof hearing. The hearing shall be at a time and place reasonablyconvenient to pupil, parent or guardian.
       Subd. 5. Closed or open hearing.The hearing shall be closed unless the pupil, parent or guardianrequests an open hearing.
       Subd. 6. Impartial hearer. Thehearing shall take place before: (1) an independent hearing officer;(2) a member of the school board; (3) a committee of the school board;or (4) the full school board; as determined by the school board. Thehearing shall be conducted in a fair and impartial manner.
       Subd. 7. Creating hearing record.The school board shall record the hearing proceedings at districtexpense, and a party may obtain a transcript at its own expense.Testimony shall be given under oath. The hearing officer or a member ofthe school board shall have the power to issue subpoenas and administeroaths.
       Subd. 8. Access to pupil'srecords. At a reasonable time prior to the hearing, the pupil, parentor guardian, or representative, shall be given access to all publicschool system records pertaining to the pupil, including any tests orreports upon which the proposed action may be based.
       Subd. 9. Pupil's right to compeltestimony. The pupil, parent or guardian, or representative, shall havethe right to compel the attendance of any official employee or agent ofthe public school system or any public employee or any other person whomay have evidence upon which the proposed action may be based, and toconfront and to cross-examine any witness testifying for the publicschool system.
       Subd. 10. Pupil's right to presentevidence and testimony. The pupil, parent or guardian, orrepresentative, shall have the right to present evidence and testimony,including expert psychological or educational testimony.
       Subd. 11. Pupil not compelled totestify. The pupil cannot be compelled to testify in the dismissalproceedings.
       Subd. 12. Hearer's recommendationlimited to evidence at hearing; service within two days. Therecommendation of the hearing officer or school board member orcommittee shall be based solely upon substantial evidence presented atthe hearing and must be made to the school board and served upon theparties within two days of the end of the hearing.
       Subd. 13. Basis of school boarddecision; opportunity for comment. The school board shall base itsdecision upon the recommendation of the hearing officer or school boardmember or committee and shall render its decision at a meeting heldwithin five days after receiving the recommendation. The school boardmay provide the parties with the opportunity to present exceptions andcomments to the hearing officer's recommendations provided that neitherparty presents any evidence not admitted at the hearing. The decisionby the school board must be based on the record, must be in writing,and must state the controlling facts on which the decision is made insufficient detail to apprise the parties and the commissioner ofeducation of the basis and reason for the decision.
       Subd. 14. Admission or readmissionplan. (a) A school administrator shall prepare and enforce an admissionor readmission plan for any pupil who is excluded or expelled fromschool.  The plan may include measures to improve the pupil'sbehavior, including completing a character education program,consistent with section 120B.225, subdivision 1, and require parentalinvolvement in the admission or readmission process, and may indicatethe consequences to the pupil of not improving the pupil's behavior.
       (b) The definition of suspensionunder section 121A.41, subdivision 10, does not apply to a student'sdismissal from school for one school day or less, except as providedunder federal law for a student with a disability.  Eachsuspension action may include a readmission plan.  A readmissionplan must provide, where appropriate, alternative education services,which must not be used to extend the student's current suspensionperiod.  Consistent with section 125A.091, subdivision 5, areadmission plan must not obligate a parent or guardian to providepsychotropic drugs to their student as a condition ofreadmission.  School officials must not use the refusal of aparent or guardian to consent to the administration of psychotropicdrugs to their student or to consent to a psychiatric evaluation,screening or examination of the student as a ground, by itself, toprohibit the student from attending class or participating in aschool-related activity, or as a basis of a charge of child abuse,child neglect or medical or educational neglect.
121A.48 Good faith exception.
       A violation of the technicalprovisions of the Pupil Fair Dismissal Act, made in good faith, is nota defense to a disciplinary procedure under the act unless the pupilcan demonstrate actual prejudice as a result of the violation.
121A.49 Appeal. A party to an exclusion or expulsion decision madeunder sections 121A.40 to 121A.56 may appeal the decision to thecommissioner of education within 21 calendar days of school boardaction. Upon being served with a notice of appeal, the district shallprovide the commissioner and the parent or guardian with a completecopy of the hearing record within five days of its receipt of thenotice of appeal. All written submissions by the appellant must besubmitted and served on the respondent within ten days of its actualreceipt of the transcript. All written submissions by the respondentmust be submitted and served on the appellant within ten days of itsactual receipt of the written submissions of the appellant. Thedecision of the school board must be implemented during the appeal tothe commissioner.
       In an appeal under this section,the commissioner may affirm the decision of the agency, may remand thedecision for additional findings, or may reverse or modify the decisionif the substantial rights of the petitioners have been prejudicedbecause the administrative findings, inferences, conclusions, ordecisions are: (1) in violation of constitutional provisions; (2) inexcess of the statutory authority or jurisdiction of the schooldistrict; (3) made upon unlawful procedure, except as provided insection 121A.48; (4) affected by other error of law; (5) unsupported bysubstantial evidence in view of the entire record submitted; or (6)arbitrary or capricious.
       The commissioner or thecommissioner's representative shall make a final decision based uponthe record. The commissioner shall issue a decision within 30 calendardays of receiving the entire record and the parties' written submissionon appeal. The commissioner's decision shall be final and binding uponthe parties after the time for appeal expires under section 121A.50.
121A.50 Judicial review.
       The decision of the commissionerof education made under sections 121A.40 to 121A.56 is subject tojudicial review under sections 14.63 to 14.69. The decision of thecommissioner is stayed pending an appeal under this section.
121A.51 Reports to service agency.
       The school board shall report anyaction taken pursuant to sections 121A.40 to 121A.56 to the appropriatepublic service agency, when the pupil is under the supervision of suchagency.
 
121A.52 Nonapplication of compulsory attendance law.
       The provisions of section 120A.22,subdivision 5, shall not apply to any pupil during a dismissal pursuantto sections 121A.40 to 121A.56.
121A.53 Report to commissioner of education.
       Subdivision 1. Exclusions andexpulsions. The school board must report through the departmentelectronic reporting system each exclusion or expulsion within 30 daysof the effective date of the action to the commissioner of education.This report must include a statement of alternative educationalservices given the pupil and the reason for, the effective date, andthe duration of the exclusion or expulsion. The report must alsoinclude the student's age, grade, gender, race, and special educationstatus.
       Subd. 2. Report. The school boardmust include state student identification numbers of affected pupils onall dismissal reports required by the department. The department mustreport annually to the commissioner summary data on the number ofdismissals by age, grade, gender, race, and special education status ofthe affected pupils. All dismissal reports must be submitted throughthe department electronic reporting system.
121A.54 Notice of right to be reinstated.
       Whenever a pupil fails to returnto school within ten school days of the termination of dismissal, aschool administrator shall inform the pupil and the pupil's parents bymail of the pupil's right to attend and to be reinstated in the publicschool.
121A.55 Policies to be established.
       (a) The commissioner of educationshall promulgate guidelines to assist each school board. Each schoolboard shall establish uniform criteria for dismissal and adopt writtenpolicies and rules to effectuate the purposes of sections 121A.40 to121A.56. The policies shall emphasize preventing dismissals throughearly detection of problems and shall be designed to address students'inappropriate behavior from recurring. The policies shall recognize thecontinuing responsibility of the school for the education of the pupilduring the dismissal period. The alternative educational services, ifthe pupil wishes to take advantage of them, must be adequate to allowthe pupil to make progress towards meeting the graduation standardsadopted under section 120B.02 and help prepare the pupil forreadmission.
       (b) An area learning center undersection 123A.05 may not prohibit an expelled or excluded pupil fromenrolling solely because a district expelled or excluded the pupil. Theboard of the area learning center may use the provisions of the PupilFair Dismissal Act to exclude a pupil or to require an admission plan.
       (c) Each school district shalldevelop a policy and report it to the commissioner on the appropriateuse of peace officers and crisis teams to remove students who have anindividualized education plan from school grounds.
121A.56 Application.
       Subdivision 1. Prohibition againstdiscrimination remains in effect. Sections 121A.40 to 121A.56 shall notbe deemed to amend or otherwise affect or change section 363.03,subdivision 5, clause (2).
       Subd. 2. Portions of schoolprogram for credit. Sections 121A.40 to 121A.56 shall apply only tothose portions of the school program for which credit is granted.
 

Updated 2/15/06