OPINION ON CHILD EXPULSION
This is the legal opinion pertaining to the expulsion of your daughter from Lang sc.
Facts
The following are the facts presented as per your instructions:
- Your daughter was expelled from the said school.
- The said expulsion happened about two years ago.
- Your child was in fourth grade at the time of the said expulsion.
- Your child is autistic.
- The reason for her expulsion is that she failed to listen, just once.
- Your daughter does not know that the expulsion was a punishment for her not listening.
- The said expulsion has occasioned emotional harm to your daughter.
Issues
From my analysis of your facts above, the following issues stand out:
- Was the expulsion justified?
- What is your recourse to justice, and what document shall you file?
- In which court jurisdiction do you file the said document?
Analysis of the Issues
- Issue 1
Due Process
Due process is a Constitutional right that comes from the 14th amendment. The 14th amendment states that no State can “deprive any person of their life, liberty, or property without due process of law”. Every student has the right to education. Therefore, whenever a student is deprived of his right to education through disciplinary proceedings such as suspension or expulsion, the student is entitled to due process. This right to due process includes the right to notice and a fair hearing before administering long-term suspension or expulsion.
It follows; in an expulsion case, you have the right to: know what specific rules were violated by your daughter; have the decision regarding the suspension/expulsion decided by an impartial panel; bring evidence and witnesses on the student’s behalf; bring legal counsel; and have the hearing be closed to the public to protect the privacy of the student.
Conduct that Warrant Expulsion
First, expelling a child from school should be a matter of last resort. It is only permitted for some specific types of conduct. Every state has its lust of behaviors that warrant immediate expulsion. It follows; expulsion is the most severe kind of punishment a school can use.
New York’s regulations on the expulsion of students limit the expulsion to gun law violations. Regulation 3214(3)(d) of New York’s School Discipline Laws & Regulations states in that regard that any “… school pupil who is determined under this subdivision to have brought a weapon to school shall be suspended for a period of not less than one calendar year…”. This provision means that the only conduct warranting mandatory expulsion is the possession of a gun in the school’s premises.
Disciplining Students with Disabilities
Section (g) of Regulation 3214(3) deals specifically with such discipline of pupils with disabilities. The provision states in part, “… a student presumed to have a disability for discipline purposes, may be suspended or removed from his or her current
educational placement for violation of school rules only in accordance with the procedures established in this Section… “. The Section proceeds to state that for the mentioned Section, a student presumed to have a disability for discipline purposes ‘shall mean a student who the school district is deemed to know was a student with a disability before the behavior in question.
In hearing your child case, the school should have checked whether the child’s behavior was a manifestation of her disability. If it is found that it was a manifestation of her disability, then the school is not authorized to suspend or remove the student except as authorized under federal law and regulations.
The major issue here is whether the conduct of your daughter was sufficient to have her expelled. The requirements for determination of manifestation are well laid out in Section 201.4 of New York’s Procedural Safeguards for Students with Disabilities Subject to Discipline. According to the provision, the conduct is a manifestation of the child’s disability if the conduct in question was caused by or had a direct and substantial relationship to the student’s disability.
My Opinion on Issue 1
First, if the school did not involve you in the decision-making process, then the due procedure was not followed. Thereby, the school violated due procedure safeguards, and as a result, the said expulsion is invalid.
Second, if your daughter was not expelled on the grounds of her disability, the threshold for expulsion is not met. Expulsion is only permitted for gun-related violations. Therefore, the expulsion is invalid in that regard.
Lastly, in my opinion, your daughter’s conduct was a manifestation of her disability. Therefore, the school should not have expelled her on this ground because expulsion is only permitted where the disabled child’s conduct is not a manifestation of the child’s disability.
- Issue 2
What document shall you file?
In my opinion, you should draft a complaint to ask for damages or any other relief following your daughter’s expulsion from the school. In the complaint, you shall outline the facts in detail, state the allegations you have against the school, and finally, any prayers you have for the court, in redress to the school’s action.
- Where should you file the case?
According to Chapter 4 of New York’s Education Rules and Regulations, you should file an appeal against the school’s decision at the Commissioner of Education. However, the law sets a strict time limit of 30 days after the school’s decision. It follows; the Commissioner is not obliged to receive any appeal past the 30 days limit unless the appellant has good reason to justify the late appeal. Your case is two years old now. Doubtlessly, you shall have a hard time justifying your delay.
Therefore, we are left with an option between State law and Federal Law.
Jurisdiction in federal courts is either personal jurisdiction or subject matter jurisdiction. Personal jurisdiction refers to the power that a court has to make a decision regarding the party being sued in a case. On the other hand, subject matter jurisdiction refers to the power of the court to hear a subject matter. Generally, under subject matter jurisdiction, the courts hear claims that exceed $75,000 and where the parties are citizens of different states, and the issue is of significant federal interest.
State courts, on the other hand, handle all matters within the state.
In my opinion, you should lodge your case in a State court because both the school and you are from New York. Besides, the State of New York has specific education laws that apply to your situation.
Lastly, I need to consider the issue of lapse of time. The law sets time limits for bringing actions to court under the Statute of Limitations. Almost two years have passed since the school expelled your daughter. Therefore, to bring a claim, you need to rely on a claim whose deadline has not lapsed. In that regard, I advise you to bring your claim under Section 214 of New York’s Rules of Civil practice to claim personal injury due to the school’s decision. The time limit for this claim is three (3) years.
Conclusion
In my opinion, it was illegal for the school to expel your autistic daughter illegally. Therefore, the school is liable to pay you any damages you may have faced consequential and incidental to the school’s decision to expel your daughter.
Regards, and all the best!
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