January 7, 2016

VIA EMAIL
Ms. Tina Shockley
Education Associate, Regulatory Review
Delaware Department of Education
401 Federal Street, Suite 2
Dover, Delaware 19901
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WWW .ACLU-DE .ORG
S. E LIZABETH LOCKMAN
PRESIDENT
KATHLEEN M Ma cRAE
EXECUTIVE DIRECTOR
RICHARD H MORSE
LEGAL DIRECTOR

Re: Proposed regulation 14 DE Admin. Code 616: Uniform Due Process

Procedures for Alternative Placement Meetings and Expulsion Hearings
Dear Ms. Shockley:
I write with regard to the proposed new regulation 14 DE Admin. Code 616,
Uniform Due Process Procedures for Alternative Placement Meetings and
Expulsion Hearings, published at 19 DE Reg. 458.
Every hour out of the classroom harms a students ability to succeed. Tragically,
students of color, special needs students, and low-income students are
disproportionally ejected from regular classrooms. In Delaware, African-American
boys are three times more likely to receive suspensions than White students for the
same behaviors. Special education students are twice as likely to receive
suspensions. And 69% of out-of-school suspensions are for minor offensessuch
as defiance, disrespect, abusive language, and tardiness. It is therefore essential that
disciplinary measures that remove children from their regular classrooms are
subject to careful procedural safeguards to reduce and correct their unfair and
unequal use.
Unfortunately, the Departments proposed measures appear designed to streamline
and accelerate the removal of children from regular classrooms rather than to
ensure that discipline is warranted, proportional, and equally applied to students
regardless of race, income, or disability. By way of summary:

For suspensions, the proposed regulations require bare bones due

process instead of the kind of fair and meaningful consideration that a
student facing ejection from the classroom deserves. For example,
principals are empowered to effectively suspend students on a temporary
basis without due process at all, even outside of emergency situations
(3.1.1.1). And parents are not guaranteed an opportunity to ensure their
children are being treated fairly before being ejected from school (see
Section 4.0 notification requirements).

The proposed regulations authorize the use of harsh punishment for

minor offenses, with no requirement at any point in the process to
consider proportionality. For example, principals may impose up to 10
days of out-of-school suspension for offenses like tardiness, with no
obligation to provide educational services during this period and no limit
placed on how many nonconsecutive 10-day suspensions may be given to a
student (Section 5.1). The regulation endorses the rejection of children with
disciplinary issues, shuttling them to alternative programs for any illdefined severe disciplinary violation instead of requiring that schools
make full use of appropriate on-site interventions before such drastic action
(Section 7.1.1). And the regulation requires that schools only monitor
children put into alternative programs twice a year to assess whether they
should be returned to a normal educational environment (Section 8.1).

The proposed regulations increase police involvement in student

discipline, unnecessarily entangling children in the criminal justice
system from a young age. For example, the regulations allow principals to
confiscate student property and deliver it to the police without proper
Fourth Amendment protections (3.1.3). And they require police to be called
to address student conduct more often than existing law requires (3.2.1).

The due process afforded for expulsions is particularly thin. Instead of

treating expulsion like the extremely serious state-sanctioned punishment
that it iswith the potential to forever damage a childs lifethe
regulations call for half-hearted notice to their parents (Section 10.3),
impossibly short preparation times for hearings (Section 10.3), and
evidentiary rules designed to streamline expulsion instead of protect rights
(Section 10.3.7.1).

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Unless corrected, the proposed regulations will invite administrators to eject

students in situations where that would be counterproductive and, in some cases,
unconstitutional. Even the legally sound aspects of the regulation merely skim the
constitutional floor of whats required. Instead, Delaware should be aiming higher,
and providing robust due process before taking away a childs regular education.
Before listing specific changes that we believe are necessary, we acknowledge that
providing appropriate due process can require time and resources in a time of
austerity for schools. But the solution to that problem is not to provide inadequate
due process. It is to use expulsion, alternative placement, and suspension less
frequently, and to increase the use of on-site restorative justice techniques to keep
children in regular classrooms.

We believe the following changes in the proposed regulation are necessary:

2.0 Terms and Definitions
a. The definition of Alternative Program refers only to a school discipline
improvement program without any mention of Appropriate Educational
Services or any other curricular education during the period of alternative
placement. The regulation must require that an Alternative Program
include Appropriate Educational Services.

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b. Appropriate Educational Services is defined as instruction provided by

the district/charter so as to enable the student to continue to participate in
the general education curriculum, although in another setting, and to
progress toward meeting a level of proficiency in that curriculum. This
definition provides insufficient detail to ensure that students receive the
education to which they are entitled. The Department should specify what
this level of service entails, including access to instructional materials,
graded homework, assessment, and communication with instructors.
c. A Hearing Officer is permitted to be an employee of the district or charter
school. To avoid conflicts of interest and the appearance of impropriety, the
hearing officer ought not be employed by the same school district or charter
school seeking to punish the child.
d. Repeated Violations of Student Code of Conductwhich allows a child
to be removed to an alternative placementis defined as five or more
violations of the school's Student Code of Conduct within a school year,
excluding chronic infractions for tardiness or unexcused absences to
school/class. This definition appropriately excludes tardiness and absence,
but fails to exclude other minor offenses that do not warrant alternative
placement or are frequently not within the control of the child, such as dress
code violations, minor insubordination, or being unprepared for class. The
definition should be modified so that only violations that substantially
disrupt the classroom environment or threaten the safety of people or
property of the school may be the basis for removal to alternative
placement.
e. Violent Felony is defined as the crimes listed in 11 Del. C. 4201(c), a
misleadingly named list of offenses that includes many nonviolent crimes.
The regulation should instead define Violent Felony as any felony
involving violence.

3.0 Preliminary Discipline Investigation & Reporting Requirements

a. Section 3.1.1.1 provides for removing a student from the general student
population for up to three days without speaking to the removed student or
providing any other due process protections. Depending on the exact
circumstances, removal from the student population without due process
may be unconstitutional unless the student meets the requirements set forth
in Section 4.2.1. Therefore, 3.1.1.1 must be revised to incorporate the
requirements of Section 4.2.1 for any removal from the student population
prior to initial due process.

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b. Section 3.1.3 goes beyond a school districts right to seize and hold
contraband when appropriate to protect a schools educational mission,
and disregards the Fourth Amendment in order to give school principals
power over student property that police officers do not have. It purports to
authorize principals to confiscate and send to the police possible evidence
for criminal or juvenile delinquency proceedings even where there is no
probable cause to believe the property is evidence of a crime. The
regulation must either limit this power to contraband other than items
merely banned by school policy (i.e., items that the student may not possess
anywhere, on campus or off) or require probable cause in order to undertake
the more intrusive seizure in which the item is turned over to the police.
c. Section 3.2.1 requires that [i]f the investigation verifies that a reasonable
basis exists to believe that a mandatorily reportable crime under 14 Del. C.
4112 has been committed, the Principal shall immediately notify the
appropriate law enforcement agency of the incident. The referenced statute
uses the phrase reliable information that would lead a reasonable person to
believe, a higher threshold for calling the police on a student, which is
itself a standard that involves the police without sufficient cause too often.
At a minimum, this regulation ought not require more police involvement
than 14 Del. C. 4112 already requires.
4.0 Initial Due Process
a. Section 4.0 does not currently require parents to be notified of the proposed
discipline either before or after it occurs. Parents should be notified of
discipline that involves ejecting a student from the normal classroom for
longer than a class period, and be given a reasonable opportunity to be
present before a child is interrogated about conduct that may be criminal.
Additionally, children should be notified that they are not required to
answer questions or make a statement.
b. One of the biggest problems in school discipline is unequal and
disproportionate discipline for students of color, special needs students and
low-income studentsespecially in the context of suspensions. As part of
the uniform due process procedures applicable to all discipline involving

removal from the classroom, local administrators should be required to

consider and personally certify (1) that the proposed discipline and its
consequences for the students education and well-being is proportional to
the offense; and (2) that the proposed discipline is applied equally to other
students who commit the same offense regardless of race, disability, or
income. If a student is given greater discipline than other students who have
previously engaged in the same or similar conduct, the official making the
decision should be obligated to put into writing the reasons for the increased
discipline in that case.
5.0 Suspensions
a. Section 5.1 empowers a principal to impose up to 10 days of out-of-school
suspension for any violation of the schools code of conduct, including
offenses like tardiness, with no obligation to provide educational services
during this period and no limit placed on how many nonconsecutive 10-day
suspensions may be given to a student before further due process is
required. This gives the principal too much power and discretion.
Suspension should be a last resort only after other measures to address
behavior have been exhausted, and out-of-school suspension should be
limited to those circumstances in which a student has willfully caused or
attempted to cause bodily injury, or threatened serious bodily injury to
another person, except in self-defense, or if the student has brought a
weapon or a controlled substance onto school grounds.1

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b. Section 5.4.1 provides that The Parent or student may appeal the
Suspension to the next administrative level in accordance with the
district/charters appeal or Grievance process, but neither this section nor
any other provides either procedural or substantive requirements for this
appeal process. This is a significant oversight in the attempt to make
uniform the due process procedures, since the ability to appeal a mistaken
or biased decision lies at the heart of appropriate discipline. The regulation
should require that (1) appeal procedures be set forth in the student code of
conduct; (2) provide that an appeal must be filed within 21 days and must
be adjudicated within 14 days of filing; (3) provide that the appeal may be
heard de novothat is, reviewed based on the appellate bodys own
consideration of the facts and appropriate punishment, if any; and (4)
provide that a hearing must be held if requested by the parent, student, or
appellate body.

To the extent that the Department of Education lacks the power to promulgate
such needed reforms, legislative reform may be necessary. But the Department
should still refrain from endorsing the current flawed system of discipline by
setting into regulation this overly expansive power to remove children from
classrooms for minor offenses.

c. Section 5.4 provides that When a student receives a Suspension from

school (in or out-of-school), verbal notification to the Parent shall be
attempted by the Principal prior to the Suspension being served. Written
notification of the Suspension shall be given or sent to the Parent as soon as
practical thereafter. As noted above, absent emergency circumstances as
set forth in 4.2.1, parents should be notified using multiple means before a
suspension is imposed.
7.0 Assignment to an Alternative Program

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a. Section 7.1.1 allows a principal to eject a student from the school and place
the student in an alternative program for any severe disciplinary
violationa term left undefined, but which may include disorderly
conduct, harassment, sharing pornography, unauthorized file downloading,
violation of a behavior contract, gambling, and many other offenses. Many
of these offenses do not justify the social and educational and psychological
difficulties imposed on a child when he or she is removed from his ordinary
school and placed in an alternative program. Only offenses involving willful
or threatened infliction of substantial physical injury, firearms, or controlled
substances should justify this level of disciplinary intervention.
b. Section 7.1.1.4 requires the exhaustion of all school-based best practice
interventions before a student may be assigned to an alternative program
for Repeated Violations of (the) Student Code of Conduct. This exhaustion
of less damaging techniques should be applied to all bases for referral. It
should also state the interventions shall, not may include counseling
services, the development and implementation of a behavior support or
modification plan, mentoring, referral to mediation, and participation in an
available In-School Alternative Program.
8.0 Procedures for Student Monitoring while in Alternative Placement
a. Section 8.1 mandates only a minimum of semi-annual review of students in
alternative placement to determine whether they should be returned to the
ordinary school setting. This means a child may spend close to six months
in sub-optimal circumstances merely because the district does not more
frequently review its disciplinary decisions. Quarterly review should be the
minimum, with recommendation for monthly review.
10.0 Procedures for the Expulsion of Students
a. Section 10.3.2 provides Written notice shall be sent by certified mail to the
Parent describing the circumstances which led to the recommendation for
Expulsion and shall give the date, time, and location of the hearing. It is
often difficult or impossible to reach parents by certified mail. The
regulation should require that notice simultaneously be sent by regular mail,

phone call, and email when available, and that when receipt of the notice is
not confirmed by the parent, notice must be attempted by hand delivery.
b. Section 10.3.3 provides that [t]he written notice will be deemed to be
received on the third calendar day following the day of mailing. It is not
appropriate to deem notice relating to matters as important as a students
potential suspension or expulsion from school to have been received when,
in fact, it may not have been received. This sentence should be stricken.

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c. Section 10.3.3 also provides that the hearing may be held within three days
of the notice, and must be held before ten days. This is an insufficient
period for a parent or student to prepare for the hearing. For example, if the
student chooses to hire counsel, this is not enough time to retain and prepare
an attorney. Additionally, this will often be insufficient time for working
parents to arrange their schedule to attend such a hearing. The hearing
should not be held before seven days after the notice is received unless both
parent and student consent.
d. Section 10.3.4 provides that certain critical information will be provided
only if requested, such as the reason for the expulsion and the evidence
supporting it. Instead, this information should be contained in every
expulsion notice.
e. Section 10.3.5 provides that The district/charter shall receive written
Parent permission for any witness who is a minor. This provision denies
due process to the student being expelled, potentially preventing
exculpatory witnesses from testifying or inculpatory witnesses from being
cross-examined. It should be stricken.
f. Section 10.3.6 provides that the hearing will be conducted by a
district/charter Board of Education or Hearing Officer. A cornerstone of
American due process is hearing by an impartial adjudicator. Even if the
school board remains the ultimate arbiter, hearings should at least be
conducted by a disinterested party, which means not a board member or
employee of the district or charter.
g. Section 10.3.7.1 permits the inclusion of hearsay evidence. This is not an
appropriate evidentiary procedure for a penalty as severe as expulsion. If a
witnesss testimony is going to be used to expel a child, the witness should
be required to be present for the hearing to ensure the veracity and
reliability of that testimony. It would be absurd to use a lower standard of
evidence to end a childs education than to collect on a civil debt. Expulsion
hearings ought to use the rules of evidence applicable in the Justice of the
Peace Court.
h. Section 10.3.12 allows for the waiver of a formal expulsion hearing by the
student, but provides for no procedural protections to ensure that this waiver

of constitutional rights is knowing and voluntary. Children should not be

permitted to waive this constitutional protection without written parental
permission on a document that explains that they have a right to the hearing
and the consequences of expulsion.
i. Section 10.4.3 allows a school board to recommend that a student be
expelled without providing any educational services whatsoever to the
expelled student. Instead, Delaware policy should be that we will never
entirely give up on the life and potential education of a child, and will
provide Appropriate Educational Services to all eligible children.

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Sincerely yours,

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Ryan R. Tack-Hooper
Staff Attorney & Legislative Advocate