|  | | 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 any
pupil, including exclusion, expulsion, and suspension. It does not
include removal from class.
Subd. 3. District. "District" means any school district.
Subd. 4. Exclusion.
"Exclusion" means an action taken by the school board to prevent
enrollment or reenrollment of a pupil for a period that shall not
extend beyond the school year.
Subd. 5. Expulsion.
"Expulsion" means a school board action to prohibit an enrolled pupil
from further attendance for up to 12 months from the date the pupil is
expelled.
Subd. 6. Parent. "Parent"
means (a) one of the pupil's parents, (b) in the case of divorce or
legal separation, the parent or parents with physical custody of the
pupil, including a noncustodial parent with legal custody who has
provided the district with a current address and telephone number, or
(c) a legally appointed guardian. In the case of a pupil with a
disability under the age of 18, parent may include a district-appointed
surrogate 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 a
disability becomes 22 years of age; (3) and who remains eligible to
attend 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 rules
promulgated by the school board, prohibiting a pupil from attending
school for a period of no more than ten school days. If a suspension is
longer than five days, the suspending administrator must provide the
superintendent with a reason for the longer suspension. This definition
does not apply to dismissal from school for one school day or less,
except as provided in federal law for a student with a disability. Each
suspension action may include a readmission plan. The readmission plan
shall include, where appropriate, a provision for implementing
alternative educational services upon readmission and may not be used
to extend the current suspension. Consistent with section 125A.091,
subdivision 5, the readmission plan must not obligate a parent to
provide a sympathomimetic medication for the parent's child as a
condition of readmission. The school administration may not impose
consecutive suspensions against the same pupil for the same course of
conduct, or incident of misconduct, except where the pupil will create
an immediate and substantial danger to self or to surrounding persons
or property, or where the district is in the process of initiating an
expulsion, in which case the school administration may extend the
suspension to a total of 15 days. In the case of a student with a
disability, the student's individual education plan team must meet
immediately but not more than ten school days after the date on which
the decision to remove the student from the student's current education
placement is made. The individual education plan team and other
qualified personnel shall at that meeting: conduct a review of the
relationship between the child's disability and the behavior subject to
disciplinary action; and determine the appropriateness of the child's
education plan.
The requirements of the individual
education plan team meeting apply when: (1) the parent requests a
meeting; (2) the student is removed from the student's current
placement for five or more consecutive days; or (3) the student's total
days of removal from the student's placement during the school year
exceed ten cumulative days in a school year. The school administration
shall implement alternative educational services when the suspension
exceeds five days. A separate administrative conference is required for
each period of suspension.
Subd. 11. Alternative educational services.
"Alternative educational services" may include, but are not limited to,
special tutoring, modified curriculum, modified instruction, other
modifications or adaptations, instruction through electronic media,
special education services as indicated by appropriate assessment,
homebound instruction, supervised homework, or enrollment in another
district or in an alternative learning center under section 123A.05
selected to allow the pupil to progress toward meeting graduation
standards under section 120B.02, although in a different setting.
121A.42 Policy.
No public school shall deny due
process or equal protection of the law to any public school pupil
involved 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 individual
education plan is excluded or expelled under sections 121A.40 to
121A.56 for misbehavior that is not a manifestation of the pupil's
disability, the district shall continue to provide special education
and related services after a period of suspension, if suspension is
imposed. The district shall initiate a review of the pupil's individual
education plan and conduct a review of the relationship between the
pupil's disability and the behavior subject to disciplinary action and
determine the appropriateness of the pupil's education plan before
commencing an expulsion or exclusion.
121A.44 Expulsion for possession of firearm.
(a) Notwithstanding the time
limitation in section 121A.41, subdivision 5, a school board must expel
for a period of at least one year a pupil who is determined to have
brought a firearm to school except the board may modify this expulsion
requirement for a pupil on a case-by-case basis. For the purposes of
this section, firearm is as defined in United States Code, title 18,
section 921.
(b) Notwithstanding chapter 13, a
student's expulsion or withdrawal or transfer from a school after an
expulsion action is initiated against the student for a weapons
violation under paragraph (a) may be disclosed by the school district
initiating the expulsion proceeding. Unless the information is
otherwise public, the disclosure may be made only to another school
district in connection with the possible admission of the student to
the other district.
121A.45 Grounds for dismissal.
Subdivision 1. Provision of
alternative programs. No school shall dismiss any pupil without
attempting to provide alternative educational services before dismissal
proceedings, except where it appears that the pupil will create an
immediate and substantial danger to self or to surrounding persons or
property.
Subd. 2. Grounds for dismissal. A
pupil may be dismissed on any of the following grounds: (a) willful
violation of any reasonable school board regulation. Such regulation
must be clear and definite to provide notice to pupils that they must
conform their conduct to its requirements; (b) willful conduct that
significantly disrupts the rights of others to an education, or the
ability of school personnel to perform their duties, or school
sponsored extracurricular activities; or (c) willful conduct that
endangers the pupil or other pupils, or surrounding persons, including
school district employees, or property of the school.
Subd. 3. Parent notification and
meeting. If a pupil's total days of removal from school exceeds ten
cumulative days in a school year, the school district shall make
reasonable attempts to convene a meeting with the pupil and the pupil's
parent or guardian before subsequently removing the pupil from school
and, with the permission of the parent or guardian, arrange for a
mental health screening for the pupil. The district is not required to
pay for the mental health screening. The purpose of this meeting is to
attempt to determine the pupilÕs need for assessment or other services
or whether the parent or guardian should have the pupil assessed or
diagnosed to determine whether the pupil needs treatment for a mental
health disorder.
121A.46 Suspension procedures.
Subdivision 1. Informal
administrative conference before suspension. The school administration
shall not suspend a pupil from school without an informal
administrative conference with the pupil. The informal administrative
conference shall take place before the suspension, except where it
appears that the pupil will create an immediate and substantial danger
to self or to surrounding persons or property, in which case the
conference shall take place as soon as practicable following the
suspension.
Subd. 2. Administrator notifies
pupil of grounds for suspension. At the informal administrative
conference, a school administrator shall notify the pupil of the
grounds for the suspension, provide an explanation of the evidence the
authorities have, and the pupil may present the pupil's version of the
facts.
Subd. 3. Written notice of grounds
for suspension. A written notice containing the grounds for suspension,
a brief statement of the facts, a description of the testimony, a
readmission plan, and a copy of sections 121A.40 to 121A.56, shall be
personally served upon the pupil at or before the time the suspension
is to take effect, and upon the pupil's parent or guardian by mail
within 48 hours of the conference. The district shall make reasonable
efforts to notify the parents of the suspension by telephone as soon as
possible following suspension. In the event a pupil is suspended
without an informal administrative conference on the grounds that the
pupil will create an immediate and substantial danger to surrounding
persons or property, the written notice shall be served upon the pupil
and the pupil's parent or guardian within 48 hours of the suspension.
Service by mail is complete upon mailing.
Subd. 4. Suspension pending
expulsion or exclusion hearing. Notwithstanding the provisions of
subdivisions 1 and 3, the pupil may be suspended pending the school
board's decision in the expulsion or exclusion hearing; provided that
alternative educational services are implemented to the extent that
suspension exceeds five days.
121A.47 Exclusion and expulsion procedures.
Subdivision 1. Requiring a
hearing; pupil may waive hearing. No exclusion or expulsion shall be
imposed without a hearing, unless the right to a hearing is waived in
writing by the pupil and parent or guardian. The action shall be
initiated by the school board or its agent.
Subd. 2. Written notice. Written
notice of intent to take action shall: (a) be served upon the pupil and
the pupil's parent or guardian personally or by mail; (b) contain a
complete statement of the facts, a list of the witnesses and a
description of their testimony; (c) state the date, time, and place of
the hearing; (d) be accompanied by a copy of sections 121A.40 to
121A.56; (e) describe alternative educational services accorded the
pupil in an attempt to avoid the expulsion proceedings; and (f) inform
the pupil and parent or guardian of the right to: (1) have a
representative of the pupil's own choosing, including legal counsel, at
the hearing. The district shall advise the pupil's parent or guardian
that free or low-cost legal assistance may be available and that a
legal assistance resource list is available from the department of
children, families, and learning; (2) examine the pupil's records
before the hearing; (3) present evidence; and (4) confront and
cross-examine witnesses.
Subd. 3. Hearing schedule. The
hearing shall be scheduled within ten days of the service of the
written notice unless an extension, not to exceed five days, is
requested for good cause by the school board, pupil, parent or
guardian.
Subd. 4. Convenient time and place
of hearing. The hearing shall be at a time and place reasonably
convenient to pupil, parent or guardian.
Subd. 5. Closed or open hearing.
The hearing shall be closed unless the pupil, parent or guardian
requests an open hearing.
Subd. 6. Impartial hearer. The
hearing 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. The
hearing shall be conducted in a fair and impartial manner.
Subd. 7. Creating hearing record.
The school board shall record the hearing proceedings at district
expense, and a party may obtain a transcript at its own expense.
Testimony shall be given under oath. The hearing officer or a member of
the school board shall have the power to issue subpoenas and administer
oaths.
Subd. 8. Access to pupil's
records. At a reasonable time prior to the hearing, the pupil, parent
or guardian, or representative, shall be given access to all public
school system records pertaining to the pupil, including any tests or
reports upon which the proposed action may be based.
Subd. 9. Pupil's right to compel
testimony. The pupil, parent or guardian, or representative, shall have
the right to compel the attendance of any official employee or agent of
the public school system or any public employee or any other person who
may have evidence upon which the proposed action may be based, and to
confront and to cross-examine any witness testifying for the public
school system.
Subd. 10. Pupil's right to present
evidence and testimony. The pupil, parent or guardian, or
representative, shall have the right to present evidence and testimony,
including expert psychological or educational testimony.
Subd. 11. Pupil not compelled to
testify. The pupil cannot be compelled to testify in the dismissal
proceedings.
Subd. 12. Hearer's recommendation
limited to evidence at hearing; service within two days. The
recommendation of the hearing officer or school board member or
committee shall be based solely upon substantial evidence presented at
the hearing and must be made to the school board and served upon the
parties within two days of the end of the hearing.
Subd. 13. Basis of school board
decision; opportunity for comment. The school board shall base its
decision upon the recommendation of the hearing officer or school board
member or committee and shall render its decision at a meeting held
within five days after receiving the recommendation. The school board
may provide the parties with the opportunity to present exceptions and
comments to the hearing officer's recommendations provided that neither
party presents any evidence not admitted at the hearing. The decision
by 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 in
sufficient detail to apprise the parties and the commissioner of
education of the basis and reason for the decision.
Subd. 14. Admission or readmission
plan. (a) A school administrator shall prepare and enforce an admission
or readmission plan for any pupil who is excluded or expelled from
school. The plan may include measures to improve the pupil's
behavior, including completing a character education program,
consistent with section 120B.225, subdivision 1, and require parental
involvement in the admission or readmission process, and may indicate
the consequences to the pupil of not improving the pupil's behavior.
(b) The definition of suspension
under section 121A.41, subdivision 10, does not apply to a student's
dismissal from school for one school day or less, except as provided
under federal law for a student with a disability. Each
suspension action may include a readmission plan. A readmission
plan must provide, where appropriate, alternative education services,
which must not be used to extend the student's current suspension
period. Consistent with section 125A.091, subdivision 5, a
readmission plan must not obligate a parent or guardian to provide
psychotropic drugs to their student as a condition of
readmission. School officials must not use the refusal of a
parent or guardian to consent to the administration of psychotropic
drugs to their student or to consent to a psychiatric evaluation,
screening or examination of the student as a ground, by itself, to
prohibit the student from attending class or participating in a
school-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 technical
provisions of the Pupil Fair Dismissal Act, made in good faith, is not
a defense to a disciplinary procedure under the act unless the pupil
can demonstrate actual prejudice as a result of the violation.
121A.49 Appeal. A party to an exclusion or expulsion decision made
under sections 121A.40 to 121A.56 may appeal the decision to the
commissioner of education within 21 calendar days of school board
action. Upon being served with a notice of appeal, the district shall
provide the commissioner and the parent or guardian with a complete
copy of the hearing record within five days of its receipt of the
notice of appeal. All written submissions by the appellant must be
submitted and served on the respondent within ten days of its actual
receipt of the transcript. All written submissions by the respondent
must be submitted and served on the appellant within ten days of its
actual receipt of the written submissions of the appellant. The
decision of the school board must be implemented during the appeal to
the commissioner.
In an appeal under this section,
the commissioner may affirm the decision of the agency, may remand the
decision for additional findings, or may reverse or modify the decision
if the substantial rights of the petitioners have been prejudiced
because the administrative findings, inferences, conclusions, or
decisions are: (1) in violation of constitutional provisions; (2) in
excess of the statutory authority or jurisdiction of the school
district; (3) made upon unlawful procedure, except as provided in
section 121A.48; (4) affected by other error of law; (5) unsupported by
substantial evidence in view of the entire record submitted; or (6)
arbitrary or capricious.
The commissioner or the
commissioner's representative shall make a final decision based upon
the record. The commissioner shall issue a decision within 30 calendar
days of receiving the entire record and the parties' written submission
on appeal. The commissioner's decision shall be final and binding upon
the parties after the time for appeal expires under section 121A.50.
121A.50 Judicial review.
The decision of the commissioner
of education made under sections 121A.40 to 121A.56 is subject to
judicial review under sections 14.63 to 14.69. The decision of the
commissioner is stayed pending an appeal under this section.
121A.51 Reports to service agency.
The school board shall report any
action taken pursuant to sections 121A.40 to 121A.56 to the appropriate
public service agency, when the pupil is under the supervision of such
agency.
121A.52 Nonapplication of compulsory attendance law.
The provisions of section 120A.22,
subdivision 5, shall not apply to any pupil during a dismissal pursuant
to sections 121A.40 to 121A.56.
121A.53 Report to commissioner of education.
Subdivision 1. Exclusions and
expulsions. The school board must report through the department
electronic reporting system each exclusion or expulsion within 30 days
of the effective date of the action to the commissioner of education.
This report must include a statement of alternative educational
services given the pupil and the reason for, the effective date, and
the duration of the exclusion or expulsion. The report must also
include the student's age, grade, gender, race, and special education
status.
Subd. 2. Report. The school board
must include state student identification numbers of affected pupils on
all dismissal reports required by the department. The department must
report annually to the commissioner summary data on the number of
dismissals by age, grade, gender, race, and special education status of
the affected pupils. All dismissal reports must be submitted through
the department electronic reporting system.
121A.54 Notice of right to be reinstated.
Whenever a pupil fails to return
to school within ten school days of the termination of dismissal, a
school administrator shall inform the pupil and the pupil's parents by
mail of the pupil's right to attend and to be reinstated in the public
school.
121A.55 Policies to be established.
(a) The commissioner of education
shall promulgate guidelines to assist each school board. Each school
board shall establish uniform criteria for dismissal and adopt written
policies and rules to effectuate the purposes of sections 121A.40 to
121A.56. The policies shall emphasize preventing dismissals through
early detection of problems and shall be designed to address students'
inappropriate behavior from recurring. The policies shall recognize the
continuing responsibility of the school for the education of the pupil
during the dismissal period. The alternative educational services, if
the pupil wishes to take advantage of them, must be adequate to allow
the pupil to make progress towards meeting the graduation standards
adopted under section 120B.02 and help prepare the pupil for
readmission.
(b) An area learning center under
section 123A.05 may not prohibit an expelled or excluded pupil from
enrolling solely because a district expelled or excluded the pupil. The
board of the area learning center may use the provisions of the Pupil
Fair Dismissal Act to exclude a pupil or to require an admission plan.
(c) Each school district shall
develop a policy and report it to the commissioner on the appropriate
use of peace officers and crisis teams to remove students who have an
individualized education plan from school grounds.
121A.56 Application.
Subdivision 1. Prohibition against
discrimination remains in effect. Sections 121A.40 to 121A.56 shall not
be deemed to amend or otherwise affect or change section 363.03,
subdivision 5, clause (2).
Subd. 2. Portions of school
program for credit. Sections 121A.40 to 121A.56 shall apply only to
those portions of the school program for which credit is granted.
Updated 2/15/06
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