Education Law Notes  

We have previously written in these pages about the development of “guidelines” or “standards” by the State Board of Education for the provision of educational opportunities for expelled students.  Click here to read Part 1 & Part 2.  Having had just a (teeny) little bit of time to ponder the final version of these guidelines, which were adopted by the State Board of Education on January 3, 2018, here are some takeaways from school districts.

THE GOOD:  The earlier versions of the draft guidelines were significantly more onerous than the final version. The Connecticut Association of Boards of Education and the Connecticut Association of Public School Superintendents should be acknowledged for their efforts in reducing the mandates and the potential fiscal impact for school districts contained in the prior drafts.  For example, the prior draft guidelines contained provisions governing the actual expulsion hearing process and mandated procedures that were beyond any statutory requirements.  Mercifully, those provisions were removed.  While pushing for school districts to consider early readmission of expelled students, the final version of the standards at least acknowledges that the decision on early readmission is within the discretion of the board of education or superintendent of schools (as is provided in the law).  In addition, the lack of a specific mandate on the number of hours of instruction that must be provided by school districts to expelled students is a positive, as a prior law (Public Act 16-147) had the effect of requiring schools to offer five hours per day of schooling for all expelled students.  Finally, the standards appear to at least recognize that placement in a full time “alternative education” program (which by law is a school or program maintained and operated by a school district that is offered to students in a “nontraditional setting” and addresses their social, emotional, behavioral, and academic needs) may not be suitable or available for all students.

THE NOT SO GOOD:  Unfortunately (as is the case when the law deals school districts a bad hand), the standards still contain some significant mandates for school districts. The standards require that each student who has been expelled have an Individualized Learning Plan (“ILP”), which appears to be modeled on the special education concept of an Individualized Education Program (“IEP”), thus giving students who may have engaged in bad behavior greater rights to an individualized education than almost every other student in the district. The standards track the requirements for special education students, including holding placement meetings, providing an individualized learning plan, and holding quarterly meetings to discuss whether the placement continues to be appropriate and the need for a new placement if the current alternative educational opportunity is no longer beneficial to the student. The standards also require that at the time of expulsion, students and parents must be informed of the right to apply for early readmission to school, and that any criteria for early readmission should be recorded in the ILP.   The standards set forth several “guiding principles” for educational opportunities for expelled students, one of which is the provision of a “full-time, comprehensive experience, where the learning is comparable to what the student would experience in a regular school environment,” and notes that such principles are “unlikely to be satisfied by assignment to homebound instruction.”

Which leads to….

THE UNKNOWN: The standards clearly state a preference for placement in a (full time) alternative education program operated by the expelling school district (or some other operator). The standards provide that the State Department of Education expects that expelled students will receive such alternative education, but recognizes that there may be “unusual cases in which placement in such a setting would not be suitable or in which such a setting may not be available.”  What exactly is an “unusual” case?  In terms of lack of availability of such an alternative education program, can a (small) district that does not have such a program and cannot afford to send its expelled students to another district’s program claim that such a program is not truly “available”?  How much effort must a district expend in trying to find an effective alternative education program at reasonable cost before it can claim that a program is not available and is relieved of the obligation of offering such a program?  Or is a school district generally expected to contract with another entity to provide these services regardless of cost? Finally, even if required, how many hours are needed to qualify as a “full time” opportunity?  As with anything in the legal world, the results will be largely determined by how the State Department of Education construes these mandates and these guidelines.

Stay tuned.

Note: Special thanks to Rebecca E. Adams, Esq., Senior Staff Attorney, Connecticut Association of Boards of Education, for her thoughts and  insights on this post and this subject in general.