The typical situation for an emergency suspension is when a student starts a fight, brings a weapon to school or hits a teacher. The student is removed and given a suspension of up to 10 days. But this assumes that the student did the act and we live in a country where you are innocent until proven guilty. So the Supreme Court ruled back in 1975 in Goss v. Lopez that a post-suspension hearing must be held as soon as practical after the emergency suspension. This applied to suspensions for up to 10 days. Longer suspensions require a more formal process. But school districts think that they can kick a kid out of school for up to 10 days with no process at all. When they do, it violates a students due process rights.
The district is supposed to conduct an immediate inquiry and meet with the student and parents as soon as practical after the suspension to inform the family of the charges and evidence against the student as well as give the student an opportunity to respond. According to Nevada State law students have a property right in their public education and they can’t lose this right without due process.
But school districts are omitting the second step after the student is initially removed. There is no post suspension hearing, no distribution of evidence and no ability for the student to refute the allegations against him. School districts think that they have 10 days to hold a hearing not just on the emergency suspension but on any longer suspension as well. They’re wrong.
The Goss v. Lopez case clearly stated that a post suspension hearing had to be held as soon as possible. That case also stated that the loss of school time and the negative stigma attached to a suspension of even less than 10 days was significant to a student. This was recently reaffirmed in Reno in Federal Court.
In two separate cases the Washoe County School District was found to have violated a students due process rights by issuing an emergency suspension and not having a hearing shortly thereafter but postponing the hearing for nine or 10 schooldays later. The court found that this delay substantially prejudiced the student and was unjustified by the alleged heavy workload of administrators.
Ironically the District’s defense was that the 10 days was insignificant. Their lawyers from Maupin Cox and LeGoy stated that 10 days was no big deal and that the students ended up graduating anyway so no harm no foul. How did their lawyers reconcile this attitude with the District’s attendance policy requiring 90 percent attendance for students or they will get an “F”? This policy means that in a semester if a student misses nine unexcused days they will fail the class.
The District adopted this rule because of how important class time is for a student as well as just learning the curriculum. Fortunately the judge saw this hypocrisy and followed the longstanding law set forth by the Supreme Court. Now the Washoe County School District has to do the same.
If your child gets an emergency suspension, demand a hearing immediately. If a hearing is not provided, you can file an action in Federal Court. Waiting 10 or more days for a hearing is against the law and the District is now well aware of that fact.
Jeff Blanck is the former General Counsel for the Washoe County School District and now is in private practice in Reno. He can be reached at: firstname.lastname@example.org