Education Law

School Discipline

It's likely your kids are pretty well behaved in school. But almost every student ticks off a teacher now and then. Minor discipline issues come up, like tardiness and talking in class. These are often met with a simple time out or in-school detention.

But out-of-school suspensions or expulsions have become much more common as zero tolerance policies have blossomed over concerns for school safety. Unfortunately, suspensions and expulsions often stay on your child's permanent school record. They may even impact on chances for college admission.

It's important to know your child has legal rights that apply to public school suspensions. Each state, and sometimes even each public school district, has specific rules for school discipline. There are also general principles of federal law that apply.

Prevent the situation from going from bad to worse by ensuring your child is treated legally and fairly in the school discipline process.

Conduct Causing School Suspension

Students can typically be suspended or expelled for:

  • Drug, alcohol or weapons possession
  • Violence against students or teachers
  • Obscene or vulgar acts or language
  • Stealing or destruction of property
  • Repeated disruptive behavior

Many schools have recently added bullying, hate crimes, sexual harassment and harassment or bullying by electronic means (computers, cell phones) as conduct justifying expulsion.

Student Due Process Rights

An elementary and high school public education is a constitutionally-protected property right. So, a student must be given what's called due process before a suspension takes place.

Due process means the suspension must be done in a fair and evenhanded manner.

This generally means students have a legal right to:

  • Know the school's rules ahead of time
  • Meaningful notice of the misconduct charged against the student
  • An explanation of the evidence against the student
  • An opportunity for students to tell their side of the story

Knowledge of School Rules

Most schools publish student conduct rules in handbooks distributed to students at the beginning of each year. Many school districts also post school rules at each school.

If your child's school hasn't published the rules and made them available to each student, you may be able to argue that your child didn't know of the rule he or she is accused of violating.

Notice of Misconduct

If your child is being suspended or expelled, you should receive detailed oral or written notice of the charges against your child. The notice should give information about:

  • The specific act or incidences involved
  • The evidence the school district is relying upon
  • The exact number of days of suspension, and when the suspension begins and ends
  • A specific date, time and location of a hearing where you can appear and challenge the suspension or expulsion

If a student's actions present an immediate danger or disruption to the academic process, the child can be immediately removed from the school without advance notice to the parents. But the parents need to be told of the incident as soon as possible.

Suspension Hearing

At an informal hearing, school representatives will present the evidence against your child. You'll then have the opportunity to present evidence in your child's defense.

To provide the best support for your child:

  • Ask your child, teachers, and other witnesses about the incident before the hearing. Write down what they say
  • Ask teachers and students to speak on behalf of your child if you think it will help
  • Make notes about what you want to say at the hearing, or ask an attorney to help represent your child
  • Do your best to remain calm and respectful throughout the process

In many public school districts, parents may appeal a suspension decision to the school board or a special committee. Even if your child has already served out a suspension, you should appeal the decision if you think it was unfair. You don’t want the punishment to continue to be a black mark on your child's school record.

Special Considerations

The federal Gun-Free Schools Act of 1994 requires students to be expelled for at least a year if they bring a gun to school.

Federal laws forbid race and sex discrimination in schools. You may challenge school disciplinary action if you think it's related to race or gender bias by school officials.

Under the federal Individuals with Disabilities Education Act students with disabilities can't be suspended for more than 10 consecutive days unless special procedures are followed.

A disabled student has a right to testing for behavioral problems. The school may then have to provide support to help resolve conduct problems.

If you believe your child was unfairly disciplined because of racial or disability issues, you can file a complaint with the Office for Civil Rights of the U.S. Department of Education. Your complaint must be filed within 180 days of the discriminatory action.

Should You Hire an Attorney?

It's a very good idea to hire an attorney to represent your child. An attorney can help ensure that relevant information is presented to school representatives and that correct procedures are followed.

The help of an attorney is especially important if there's any possibility of criminal charges. You child could be charged criminally for such things as assault, or alcohol, drug or weapons possession.

You don't want your child to make statements in a school hearing that might harm a later criminal investigation. Your child doesn't have to answer questions asked by the school or the police.

A student breaking public school rules may also be considered a neglected child. An attorney familiar with juvenile rights can help you stay out of hot water with local child or social services advocates.

Questions for Your Attorney

  • What can I do if I think my child's misbehavior at school is due to a medical or emotional disability?
  • Can you negotiate a deal with school officials to have my child do community service to avoid being expelled from school?
  • Can an attorney help even though attorneys aren't allowed at school hearings?

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