Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

I confess that I am still a bit confused over the push to limit suspensions to in-school suspensions except in extreme cases. As the assistant principal at a large high school, I spend much of my time dealing with student discipline issues, and sometimes it is clear to me that a student should be suspended out of school. But my superintendent has commented to the principal that I am a “hanging judge” who should be more compassionate.

I take umbrage at that appellation (I used to teach English), but I would appreciate some guidance. Case in point is a student who got frustrated in class the other day and told his teacher to “go &^$%* himself.” The way I was raised, such disrespect and vulgarity would not be tolerated and the student would be out on his ear. Now, however, apparently I must go through some mystical process to decide whether to limit the discipline to an in-school suspension. I would rather simply draw a line in the sand and let students know that if a student swears at a teacher, he or she will be suspended out-of-school. Period. Does that work for you?

Thank you,
Keeping it Simple

Dear Simple:

While I admire your respect for the past, adopting a general rule that students will be suspended out-of-school in such cases is inconsistent with state law. Connecticut General Statutes, § 10-233c(g) now provides that

…all suspensions pursuant to this section shall be in-school suspensions, except a local or regional board of education may authorize the administration of schools under its direction to impose an out-of-school suspension on any pupil in (1) grades three to twelve, inclusive, if, during the hearing held pursuant to subsection (a) of this section, (A) the administration determines that the pupil being suspended poses such a danger to persons or property or such a disruption of the educational process that the pupil shall be excluded from school during the period of suspension, or (B) the administration determines that an out-of-school suspension is appropriate for such pupil based on evidence of (i) previous disciplinary problems that have led to suspensions or expulsion of such pupil, and (ii) efforts by the administration to address such disciplinary problems through means other than out-of-school suspension or expulsion, including positive behavioral support strategies…

As you will note, before imposing an out-of-school suspension, you must determine that the student’s conduct is of a nature that the presumption for in-school suspension should be overcome and the student should be suspended out-of-school. This determination must be made on an individual basis “during the hearing,” and thus your simple predetermination that students who swear at teachers in class will be suspended out-of-school is inconsistent with these statutory requirements.

To be sure, out-of-school suspension is still permitted if the student’s conduct is “such a danger” or “such a disruption of the educational process” that such suspension is justified. That provision leaves room for judgment, and there is no ready mechanism for challenging that determination.

Moreover, you may now decide to impose an out-of-school suspension based on evidence of past disciplinary problems that have led to prior suspensions or expulsions. This provision is logical; an out-of-school suspension may be an appropriate heightened response to continuing misconduct. Indeed, the suspension statute has long provided that in determining the length and conditions of suspension, school officials may consider “past disciplinary problems which have led to removal from a classroom, suspension or expulsion of such pupil.” Conn. Gen. Stat. § 10-233c(b).

When the law was first amended to create the presumption in favor of in-school suspension, the Commissioner of Education was charged with the duty to provide guidance, and he did so — expansively. The resulting Guidelines are forty-six pages long, and are available at https://portal.ct.gov/-/media/SDE/Press-Room/Files/In_School_Suspension_Guidance.pdf. These Guidelines merit review, but the decision on whether and when to impose out-of-school suspension remains vested in school officials.

Finally, the presumption for in-school suspension has a curious and perhaps unintended consequence. Conn. Gen. Stat. § 10-233c(f), which governs out-of-school suspension, provides that “notice of the suspension and the conduct for which the pupil was suspended shall be included on the pupil’s cumulative educational record.” However, under Conn. Gen. Stat. § 10-233f (the in-school suspension statute), there is no similar requirement. Thus, if and when you follow the statute and conclude that misconduct should be addressed through an in-school suspension, there is no requirement that you include notice of the in-school suspension in the student’s cumulative file.