Education Rights Center

at Howard University School of Law





A Research Center Promoting Educational Equity for All Students
MS - Punishments
Contents
  1. Grounds for suspension and expulsion
  2. Alternative to suspension
  3. Expulsion
  4. Alternative school programs
    1. Students eligible for alternative programs
    2. Procedures required for and upon removal to alternative programs
  5. Removal of student from the school system
  6. Zero tolerance
  7. References
Grounds for Suspension and Expulsion 

School superintendents and principals have wide latitude to suspend students.  They need only have good cause,.[39] which basically means the student has engaged in what they or school policy deem to be misconduct.[40]  Because[42] "[a] student's right to attend public schools is ... conditioned on his or her compliance with the reasonable rules, regulations, and requirements of the school authorities,”[43] a student's failure to obey "reasonable" school rules is "good cause" for suspension.[44]

The alleged misconduct need not occur in class or even the school building.  So long as the behavior was on school property, on the way to or from school, or at a school-related activity, the student is subject to suspension. A student may also be suspended if the student's presence at school would negatively affect the classroom environment, or for any other reason that could cause a student's suspension, dismissal, or expulsion under federal, state, or local laws.[45] However, unlike many states, a student in Mississippi may generally not be expelled or suspended for dangerous or violent acts, or for selling controlled substances, if the student commits these acts away from the school or school-related activities.[46]  Courts particularly dislike enforcing disciplinary action for a student's acts away from school if the school board rules do not specifically ban the student's off-campus behavior.[47]  Still, the school district may discipline the student in other ways, including assignment to an alternative school, if the student's conduct directly and negatively affects the school's learning environment or endangers anyone's safety.[48] 

Alternative to Suspension

A student can avoid suspension if the student’s parent or guardian attends class with the student for a specific period of time and the teacher and school principal agree.  In this case, if the parent or guardian refuses or fails to attend class, the student will be suspended.[51]

Expulsion

Expulsions require more due process than lesser punishments.[52]  State law does not give specifics about what this process should be, but it generally should include more scrutiny of the particular punishment and a closer review of the facts and circumstances that led to the discipline.  Thus, the school board should review the superintendent's or principal’s recommendation of expulsion.  It should not simply affirm the recommendation, but rather should independently [53] consider “what, under all the circumstances, the penalty should be.”

To return to school,  an expelled student must re-apply for admission. However, if an expelled student has not been successfully rehabilitated (for instance, by participating in an alternative education program),[57] a school district may deny that student's admission or re-admission, even if the term of expulsion is over.[58]  If admission or re-admission is denied, the student’s only option is to appeal to a court.[59]
Alternative School

1. Students Eligible for Alternative Programs
Some compulsory-school-age students are required to participate in an alternative school programs or behavior modification programs.  These students include:

(1) any student suspended for more than 10 days or expelled from school[132];
(2) any student whose parent or guardian has documented a need to place the student in an alternative program due to disciplinary problems;
(3) any student referred by a chancellor's or youth court judge's order[133]; and
(4) any student whose presence in the classroom (as determined by a school superintendent or principal) is disruptive or detrimental to the best interest and welfare of the students and teacher.[134]

Even if a student's misconduct has occurred away from school, school officials may assign him or her to an alternative school program if the student’s continued enrollment in the regular education program would immediately, directly, and disruptively affect the school environment and/or threaten the safety of the student or others.[135]  However, if a student is guilty of a weapons offense or other felony, the school, in its discretion, can refuse to admit the student to the alternative school program and, thus, school altogether.[136] DB comment: redundant with earlier section(s)

2. Procedures Required for and Upon Removal to Alternative Program

Most alternative program assignments are made by principals or superintendents,[138]but youth court judges also have the authority to send children to alternative schools.[139]

However, this authority has limits. A youth court may not place a child in an unaccredited program.[140]  Also, the State Board of Education must maintain minimum guidelines for such alternative programs.[141] DB comments here. Further, the principal or administrator of an alternative school must receive verification from a student's guidance counselor that the student is suitable for attendance at the program.  Before a student may be removed to an alternative education program, the school district superintendent must determine that the local district's disciplinary policy is being followed.[142]
Removal of Student from the School System

School officials can remove any student who participates in criminal or violent behavior from an alternative program and the entire school system.  If probable cause exists that a student has engaged in this type of behavior, the case is then referred to the youth court.[143]  DB comments here. If a school district finds that an expelled student's acts endanger the safety of himself or others, or will disrupt the educational process at the alternative school, the school board has discretion to remove the student from the school system completely.[144]  However, there are only certain offenses (such as a felony or weapons possession) which a school district may penalize by total removal from school.[145]
Zero Tolerance

Under state law, school boards may expel students through "zero-tolerance" policies, meaning that students are automatically suspended or expelled for certain types of infractions.[64]  For instance, any student who is found with a controlled substance or weapon, or who commits a violent act on school property, may be automatically and immediately expelled for one year.[65]  A student found with a weapon on school property generally will not receive a second chance, an appeal DB comment: this seems to contradict the next paragraph., or a right to alternative education programs.[66]  Still, the school superintendent or principal may, on a case-by-case basis, modify the length of that student's expulsion.[67]

Although the punishment for the infraction is automatic, the school board still cannot expel or suspend a student without first affording the student his or her rights.[68]  This means the principal or superintendent must still hold a hearing to determine whether the student has in fact engaged in the activity of which the student is accused.  Moreover, even if the principal or superintendent holds an initial hearing, the student will still have the right to appeal the outcome  to the school board.[69]  Thus, the punishment of expulsion can be automatic, but only after the school district demonstrates through a hearing that the student has done something wrong.  This requires that the school district 

School boards must balance their goal of a drug- and violence-free environment with students' constitutionally-guaranteed rights.[70]  [71] consider the specific facts and circumstances in the student's case,[72]  before imposing “zero tolerance.”[73]

Finally, Mississippi law prohibits "zero-tolerance" policies to suspend students unless the student has engaged in possession of a controlled substance, weapon possession, or a student's violent act on school grounds.[74]

References:

[39] Miss. Code Ann. § 37-9-71; 7 MS Prac. Encyclopedia MS Law § 65:209.
[40] Id.
[41] Goss v. Lopez, 419 U.S. 565 (1975), citing Arnett v. Kennedy, 416 U.S. 134, 164 (1974).
[42] 68 Am. Jur. 2d Schools § 298.
[43] Id.
[44] The same section of American Jurisprudence also notes that another court [citation? - FN9] upheld a [which state?] state statute that identified as cause for suspension or expulsion any "conduct which substantially disrupts, impedes or interferes with the operation of any public school."
[45] Miss. Code Ann. § 37-9-71; Op.Atty.Gen. No. 2006-00362, Roach, 2006 WL 2789375, August 25, 2006; 7 MS Prac. Encyclopedia MS Law § 65:209. But see Warren County, supra note 11 at 460, where the court ruled that a student could not be expelled for drinking several sips of beer at home, before going to school, since the school board had no published rule barring such behavior.
[46] [30] Op.Atty.Gen. No. 2003-0439, Adams, September 5, 2003 (Incorporating by reference Op.Atty.Gen No. 97-0268, Barnett, June 13, 1997); Miss. Code Ann. § 37-13-92: "Due to the clear geographic limitation imposed by statute, there is no authority under the present law to suspend or expel a student for dangerous or violent acts or the sale of controlled substances if such acts are committed away from the school or school related activities. The school district may, however, discipline the student in other ways, including assignment to an alternative school, if there is a showing that the non-school related conduct of the child has a direct and negative effect upon the learning environment of the school and/or constitutes a threat to the safety of the student or others. Mississippi statutory and regulatory law, unlike that of other states, grants a property or liberty interest in the regular education program; therefore any disciplinary assignment to an alternative school must be accompanied by due process." See generally Daniel E. Feld, Right to Discipline Pupil for Conduct Away from School Grounds or Not Immediately Connected with School Activities, 53 A.L.R. 3d 1124 (1973).

[47] See, e.g., Warren County, supra note 11; Galveston Independent School Dist. v. Boothe, 590 S.W.2d 553 (Tex. Civ. App. Houston 1st Dist. 1979) (expulsion order against student for possession of marijuana in a car off-campus was unenforceable in the absence of notice that expulsion could result from such act); Hobbs v. Germany, 49 So 515 (Miss. 1909) [verify citation] (court invalidated school rule mandating that students to stay at home and study every night from 7-9 p.m.).
[48] Id.; "[w]hen a school district receives notice that a student has committed an act away from school that is of such a nature that to continue the student in his or her regular education program would have an immediate, direct and disruptive effect on the school environment, then the school officials may take disciplinary action and assign the student to an alternative program, in school suspension or alternate site instruction so long as such action does not constitute a suspension or expulsion from the school district." Op.Atty.Gen. No. 97-0268 (97-15980), Barnett, June 13, 1997. According to A.L.R., "[t]he test of the reasonableness of a school regulation affecting out-of-school conduct has usually ... been whether the out-of-school conduct being regulated has a direct and immediate effect on the discipline or general welfare of the school. Feld, supra note 46.
[49] Id.
[50] Op.Atty.Gen. No. 97-0508, 97-17475, Davies, Sept. 12, 1997; Miss. Code Ann. § 37-9-71; 7 MS Prac. Encyclopedia MS Law § 65:212.
[51] Miss. Code Ann. § 37-11-53.
[52] Colvin, supra note 6 at 513 (N.D. Miss. 1999); Jones, supra note 11 ("expulsion and suspension are severe sanctions requiring solemn attention to a pupil's rights"); 7 MS Prac. Encyclopedia MS Law § 65:212.
[53] [citation]
[54] 490 F.2d 458 (5th Cir. 1974).
[55] supra [citation].
[56] [citation]
[57] [citation?]
[58] Op.Atty.Gen. No. 2005-0320, Fleming, 2005 WL 1994205, July 15, 2005, citing Miss. Code Ann. § 37-15-9(3).
[59] Id.; Miss. Code Ann. § 37-13-92. Statutory law does not specify the applicable standard of review; this issue will require more research.
[60] Miss. Code Ann. § 37-11-18. See also Miss. Op. Atty. Gen., Price (Sept. 22, 1994); 7 MS Prac. Encyclopedia MS Law § 65:212.
[61] Miss. Op. Atty. Gen. No. 97-0152, Benvenutti (Apr. 4, 1997); 7 MS Prac. Encyclopedia MS Law § 65:212.
[62] Op.Atty.Gen. No. 96-0346, Howell, June 7, 1996; Op.Atty.Gen. No. 98-0218, Chaney, April 24, 1998; Miss. Code Ann. § 37-13-92; Miss. Code Ann. § 37-9-71.
[63] Op.Atty.Gen. No. 98-0218, Chaney, April 24, 1998; Miss. Code Ann. § 37-13-92; Op.Atty.Gen. No. 96-0346, Howell, June 7, 1996; Miss. Code Ann. § 37-9-71.
[64] Miss. Code Ann. § 37-7-301(e); 7 MS Prac. Encyclopedia MS Law § 65:212; see also Covington County, supra note 11; Gun Free Schools Act of 1994, [citation].
[65] Miss. Code Ann. § 37-11-18; 7 MS Prac. Encyclopedia MS Law § 65:212.
[66] Colvin, supra note 6.
[67] Miss. Code Ann. § 37-11-18.
[68] Covington County, supra note 11; 7 MS Prac. Encyclopedia MS Law § 65:212.
[69] Miss. Code Ann. § 37-11-18; 7 MS Prac. Encyclopedia MS Law § 65:212; see also Op.Atty.Gen. No. 2007-00274, 2007 WL 2688625, Treadway, July 27, 2007.
[70] Colvin, supra note 6.
[71] Id.
[72] Id. ("students in our public school systems, who may ... face a daunting punishment, should at least be afforded a thorough review of their case, prior to imposition of penalty").
[73] Id. at 512; 7 MS Prac. Encyclopedia MS Law § 65:212.
[74] See Miss. Code Ann., Sec. 37-11-18

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