Limits on Schools’ Authority to Discipline Students

Limits on Schools’ Authority to Discipline Students

Note: This information is from our manual, Discipline in Public Schools.

While school districts have authority to set rules and decide appropriate consequences when rules are broken, there are some limits on their authority.

Some limits on school districts’ authority come from constitutional protections, like the right to due process, equal protection, and freedom of speech. There are also limits that the Washington State legislature has passed regarding when and for how long schools can suspend or expel students. School districts are also required to avoid discrimination in their discipline policies and practices.

Can schools discipline students for things they say or write (freedom of speech)?

Not unless the student’s expression would cause a substantial disruption, or falls under another limited category of types of speech that is not protected in schools.

In a famous case from 1969, Tinker v. Des Moines, the U.S. Supreme Court explained that students do have the right to free speech, even at school, but their rights are not absolute. Schools can put reasonable rules in place, and students can face discipline if they express themselves in a way that would cause a substantial disruption, or harm to another person.

Since Tinker, there have been several more decisions about what kind of speech is protected at school, and what is not. New cases continue to raise new questions. You can find information from various sources online about students’ free speech rights in school. If you have questions about whether a particular student’s expression would be protected speech, that is a good time to seek legal advice.

Can schools discipline students for things they post online, even if they are off-campus?

It might depend on the specific circumstances. Schools are responsible for students when they are at school, or participating in school activities. Along with that responsibility, schools have authority to discipline students for things they do while at school, or while participating in school activities.

When kids are not at school or participating in school activities, generally, that means schools are not responsible, and do not have authority to discipline them.

What if a student does something while they are out of school that causes a disruption at school?

That is a question that schools and families are facing more and more frequently with the increase in social media and its ability to spread information so quickly.

There have been several cases taken to courts that challenge a school’s authority to discipline a student for something the student wrote or posted when they were at home, or out of school. If a student writes or posts something that is considered a threat against another student, an adult at school, or the school itself, they might find themselves in trouble at school, and potentially with law enforcement as well. Recently, courts have looked at whether something a student does when they are out of school would create a substantial disruption at school, when deciding whether schools have authority to discipline the student.

You can find information from various sources online about students’ rights in relation to off-campus or online speech and student discipline. One source for information about students’ free speech rights in schools is the Student Press Law Center, at www.splc.org. If you have questions about whether a particular student’s expression or conduct outside of school can be a basis for school discipline, that is a good time to seek legal advice.

Talking with Kids about the Impact of Words

Talking with students about the impact of their words can help them stay out of trouble. Some of us grew up hearing “Sticks and stones may break my bones but words will never hurt me,” suggesting we shouldn’t worry about what others say. The reality is that students today can face significant consequences for saying things that might be considered threatening, or harassment or bullying. Even if the school ultimately agrees there was no real threat, if there is a chance of a real threat, a school might start with an emergency expulsion to make time for an investigation.
At some point, most of us say things we wish we hadn’t, or make jokes we later realize were not funny. Students also might say or post things they don’t really mean. Taking time to talk with your child about the impact of words, and encouraging them to pause and think before posting, can help them stay out of trouble.

How do anti-discrimination laws apply to schools’ authority to discipline students?

State and federal laws prohibit schools from exercising their authority to discipline students in a discriminatory manner.

Discrimination is the unfair or unequal treatment or harassment of a person because they are part of a group, defined by law, as a protected class. A protected class is a group of people who share common characteristics and are protected from discrimination and harassment under federal and state law. Washington State’s anti-discrimination law prohibits schools from discriminating on the basis of:

  • Race and color
  • Sexual orientation
  • National origin
  • Gender expression
  • Religion and creed
  • Gender identity
  • Sex
  • Veteran or military status
  • Disability, or
  • Use of a trained dog guide or service animal.

Different treatment: Unlawful discrimination can happen if a student is treated differently because of their race, ethnicity, gender, religion or other protected class status.  For example, if two students engage in the same behavior, in similar situations, but one student receives a more severe punishment because of a stereotype or worry that students of the same race or ethnicity, religion, gender or with the same disability are more dangerous, that could be a case of unlawful discrimination.

If you believe your child may have been treated differently because of their race, gender or other protected class status in a discipline matter, there are informal and formal options for raising your concerns. You can find information about dispute resolution options for discrimination complaints at OSPI’s Equity & Civil Rights Office webpage, here: http://www.k12.wa.us/Equity/ComplaintOptions.aspx. You can also find a brief toolkit on Discrimination on our website, here: http://oeo.wa.gov/publications-reports/publications/.

Disparate impact: Unlawful discrimination can also show up if a discipline policy or practice causes a disparate, or disproportionate and unjustified, impact on a particular group of students.

Finding disparities in the data, by itself, might not mean there has been unlawful discrimination, as there can be a range of factors that influence rates of discipline. However, discipline data is a critical tool for school communities that want to make sure their discipline policies and practices are fair, reasonable and effective in helping support students’ learning.

Washington state law requires each school district and public charter school in Washington to review discipline data at least once each year to look for possible disparities and indication of discriminatory impact. OSPI’s Equity & Civil Rights Office has posted tools to support school communities in reviewing their discipline data and trying to understand root causes of disparities, here: http://www.k12.wa.us/studentdiscipline/Equity/Laws.aspx.

You can find data on discipline for the state overall, and for each district in the state, on OSPI’s Data and Analytics webpage, here: http://www.k12.wa.us/DataAdmin/PerformanceIndicators/DataAnalytics.aspx

Help Uncover Root Causes of Disparities in Discipline

One of the key steps in reviewing discipline data that shows disproportionate impacts is to consider what might be the root cause or causes of disproportionalities.
Districts are encouraged to bring together data equity teams to do the data review and analysis. Including people with different perspectives, and different roles in discipline processes can help open up the root cause inquiry and avoid mistaken assumptions about what might be influencing outcomes.
If you are interested in participating in that data inquiry process, reach out to your district office to see how you can participate.

For more explanation on different treatment and disparate impact in relation to student discipline, check out the 2014 Joint Dear Colleague letter from the U.S. Department of Education and U.S. Department of Justice, regarding Nondiscriminatory Administration of Student Discipline, available here: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html.

What limits does state law put on the use of suspensions and expulsions?

School districts cannot discipline students by denying them access to educational services. No discipline can be enforced in a way that it would prevent a student from finishing a grade, subject or graduation requirements. That means, even if a student is suspended or expelled, their school district still has to provide access to services so the student can keep moving forward with their education.

Also, the state has set rules that prohibit schools from using suspensions and expulsions for certain kinds of behavior:

  • Schools cannot suspend or expel students for missing or skipping school or being late to class.
  • Schools cannot use long-term suspensions or expulsions except in cases involving certain serious behaviors (see the sections on long-term suspensions and expulsions for details).
  • Schools also cannot impose discipline in a way that would deny or delay a student’s access to a nutritionally adequate meal.

The state rules also set limits on the use of suspensions and expulsions for students in Kindergarten through 4th grade.

Starting in the 2018-19 school year, no student in grades k-4 can be given a long-term suspension (more than 10 days), or a series of short-term suspensions that would add up to more than 10 days in a semester or trimester.

Starting in the 2019-20 school year, school districts will not be allowed to use expulsions for students in grades k-4, with an exception for firearms.

There will also be limits on the use of in-school suspension that will apply to all grade levels.

Look for More Updates Starting with the 2019-20 School Year

The new state school discipline rules have made several changes to suspension and expulsions. Some of those changes are in effect right now. Others will start with the 2019-20 school year. So, watch for updates, and please be sure to reach out to our office if you have questions. You can reach us at 1-866-297-2597 or at oeoinfo@gov.wa.gov. You can also find detailed information on the rule changes on OSPI’s website, here: http://www.k12.wa.us/StudentDiscipline/Rules/.

What is corporal punishment, and is it allowed in schools in Washington?

Corporal punishment means physical punishment, or intentionally causing physical pain to a student. It is not allowed, and has not been allowed in Washington State since 1994. The ban on corporal punishment does not include situations where a school staff person uses physical restraint as necessary to control spontaneous behavior that poses an imminent likelihood of serious harm.