Problem Resolution System Office

PRS Case Study #1 - Due Process for Emergency Removals

The Problem Resolution System office will be publishing an ongoing series of Case Studies to illustrate particular aspects of compliance which would benefit from clarification or elaboration based on the results of our complaints investigations and findings. Please feel free to contact the PRS office if you have any questions regarding these materials at 781-338-3700 or at Compliance@doe.mass.edu.

Category

Discipline

Concern

Discipline procedures - Due process-Emergency removal

Scenario Description

Student is an 11 year old boy in 6th grade with an IEP. Student attends sub-separate classes and requires supports including a behavior intervention plan. On a particular day, he engaged in various unsafe behaviors in the classroom including kicking, spitting, destroying school property, and hitting a staff member and a peer.

As a result of these behaviors, the District decided to impose an emergency removal. The District orally notified the student and the parent that there will be an emergency removal of the student for that day and the next two school days and the basis for it. The District also provided a written Notice of Emergency Removal and then proceeds to impose the emergency removal. Because they did not anticipate any supplemental suspension beyond the 2 day removal, the District did not provide an opportunity to the student and parent for a hearing to discuss the removal.

Statement of Finding

The district was out of compliance with 603 CMR 53.07.

Explanation

Although the district had no intention of suspending the student beyond the term of the emergency removal, they failed to implement required due process by not providing the opportunity for a hearing to discuss the emergency removal itself in violation of the regulatory requirement in 603 CMR 53.07(c) and (d)….

Citation: 603 CMR 53.07

1. Nothing in 603 CMR 53.00 shall prevent a principal from removing a student from school temporarily when a student is charged with a disciplinary offense and the continued presence of the student poses a danger to persons or property, or materially and substantially disrupts the order of the school, and, in the principal's judgment, there is no alternative available to alleviate the danger or disruption. The temporary removal shall not exceed two school days following the day of the emergency removal, during which time the principal shall:
• Make immediate and reasonable efforts to orally notify the student and the student's parent of the emergency removal, the reason for the need for emergency removal, and the other matters set forth in 603 CMR 53.06(2);
• Provide written notice to the student and parent as provided in 603 CMR 53.06(2);
• Provide the student an opportunity for a hearing with the principal that complies with 603 CMR 53.08(2) or (3), as applicable, and the parent an opportunity to attend the hearing, before the expiration of the two (2) school days, unless an extension of time for hearing is otherwise agreed to by the principal, student, and parent.
• Render a decision orally on the same day as the hearing, and in writing no later than the following school day, which meets the requirements of 603 CMR 53.08(2)(c) and (d) or (3)(c) and (d), as applicable.
2. A principal may not remove a student from school on an emergency basis for a disciplinary offense until adequate provisions have been made for the student's safety and transportation.

Take Away

While the District determined that the student's behavior that day "posed a danger to persons or property, (and) materially and substantially disrupted the order of the school, and in the principal's judgment there (was) no alternative available to alleviate the danger or disruption" as required by the regulation and made immediate and reasonable efforts to orally notify the parent and sent a written notice to parents and student, the District erred in failing to provide notice of the right to a hearing and hold a due process hearing for an emergency removal before two school days expire following the day of the removal.

Potential Approaches
to Consider

DESE's Discipline Webpage includes Federal Resources, Alternative Approaches to Addressing School Climate, and National Resources for Charter Schools
USDOE Dear Colleague Letter on Inclusion of Behavioral Supports for Students in Individualized Education Programs