Discipline & Due Process: What rights do educators have to impose discipline on students when parents don't agree?

By: Mary Dowell
December 10, 1998
By Mildred Collins and Mary Dowell

Published in Thrust for Educational Leadership, Vol. 28, No. 2, November/December 1998. Reproduced with permission.

A troubling truth is increasingly apparent to many teachers and administrators: One of their key constituents is becoming less willing to be a partner in the educational process. Often it is not just students who are a challenge for educators; parents are sometimes as difficult to deal with as their children.

The problem includes an increasing number of parents who do not accept' the discipline imposed by the school, and assert a "right" to refuse to permit their children to comply with disciplinary sanctions.

As attorneys for many of California's schools and community college districts, we are constantly asked by our clients: Do we have the right to impose discipline on students when their parents disagree? If we do so, will we face liability?

We believe educators do have the right to expect parents to accept discipline decisions that are made in compliance with required procedures. And while parents increasingly sue over trivial issues, we believe there is no significant danger of liability to educators. Here are answers to some questions teachers and administrators often have regarding student discipline.

Can a student be counseled when parents are not present and have not consented?

The answer to this question, until recently, seemed self-evident. Teachers, counselors, vice-principals and principals have always exercised the authority to meet with, interview and counsel students who are witnesses, victims or perpetrators of student misconduct. But parents increasingly object, complaining when students are questioned without their permission, or even refusing to return a child to school unless they are permitted to be present for the interview. These parents simply misunderstand the extent of school authority and responsibility.

Education Code Section 48911 specifies that any suspension must be preceded by a conference between the principal or the principal's designee and the student. There is no requirement that a parent be present, or that a parent even be notified before the conference occurs. Indeed, notice to the parent is only required after the conference occurs and if the principal decides to proceed with the proposed suspension. A student can even be released to peace officers without prior notice to parents, although there must be notice immediately afterward (Education Code Section 48906).

If the Legislature permits a suspension to be imposed without the presence and participation of a parent, it certainly intends school teachers and officers to interview students and to impose discipline less than suspension without parents being present.

An interview by a school official, even one that leads to discipline, is not the same as an interview by a peace officer. The California Supreme Court specifically recognized this in In re William G. (1985) 40 Cal. 3d 550, 221 Cal. Rptr. 118, when it permitted school officials to search students based on a reasonable suspicion that the student is engaged in wrongdoing, rather than requiring probable cause. School officials are not investigating crimes, so students' rights are not violated if they are questioned without their parents being present.

Student Detentions
Many schools seek - and even prefer - to use disciplinary tools short of formal suspension to deal with minor student misconduct. Behavior contracts, mentoring, exclusion from extracurricular activities and the traditional after school detention remain well-accepted alternatives to suspension. But an uncooperative parent can frustrate the usefulness of these alternatives by refusing to permit a child's compliance.

After compliance with the due process required by Education Code Sections 48900 et seq., a student can be excluded from school for a specified time, and is subject to further discipline for coming on campus in violation of the suspension. But, if a parent directs a child not to comply with an after-school detention, school administrators are left with the sense that they are powerless to overcome this exercise of parental authority.

Laws Permitting Detentions
The Education Code is almost devoid of any reference to detentions. Detentions are only specifically referenced in Education Code Section 58911.2 as an alternative to off-campus suspension, to be considered by a school that is suspending a high percentage of its students. But Title 5 of the California Code of Regulations clearly assumes that schools have the authority to impose detention by providing, at Sections 352 and 353, that students cannot be required to serve detention during recess or the noon break, and cannot be detained for disciplinary reasons more than one hour after the close of the maximum school day.

Authority to impose this discipline can also be derived from other areas of the law. Education Code Section 35160, the so-called permissive Education Code provision, establishes the authority of schools to carry on any program or activity that is not in conflict with the law or with the purposes for which school districts are established. This authority certainly includes establishing student discipline policies, so long as they are consistent with those required by law.

Section 35160 is closely followed by Education Code Section 35181, which specifically authorizes a governing board to adopt and issue policy statements setting forth the responsibilities of students regarding, among other things, attendance and in-school behavior.

Education Code Sections 48900 et seq., set forth in minute detail how policies regarding suspensions and expulsions are to be administered. Notwithstanding that detail, the code clearly anticipates that sanctions other than suspension or expulsion are to be available to school districts.

Education Code Section 48900 itself expresses a specific legislative intent to impose less severe sanctions against students who are tardy, absent or who leave campus without permission. Education Code Section 48900.5 specifically provides that suspension only be imposed when other means of correction fail to bring about proper conduct. Obviously, the Legislature intends for schools to have less severe forms of discipline available for less serious offenses.

Enforcing a Detention
The above outline of statutory authority for discipline other than suspension or expulsion may be useful in satisfying parents that the schools have the right to impose such discipline. But it may not entirely persuade some parents that they should permit their children to undergo such discipline.

All student discipline must be accompanied by due process (Cross v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975)). The level of due process necessary will be determined by the severity of the sanction. But, before any sanction is imposed, the student must know what offense is charged and be given an opportunity to tell his or her side of the story. In the case of a relatively light sanction, such as detention, this entire process may take only a few minutes. But it might be complied with, to assure the school's right to impose the discipline.

Once discipline such as a detention has been ordered by an authorized school official, the student's failure to comply is arguably willful defiance of the valid authority of school officials, which can lead to suspension under Education Code Section 48900(k). As pointed out above, any suspension must be accompanied by an effort to contact a parent or guardian of the student by telephone, and notice in writing, as required by Education Code Section 48911(d).

Thus, a parent who has directed a child not to comply with a detention order by the school will be put on notice of the consequences to the child of the parent's direction. If the lack of cooperation continues, further suspensions and possibly expulsion are available sanctions.

We do not mean to minimize the potential that a parent's lack of cooperation will result in the student being expelled. The procedural safeguards built into the Education "-ode requiring extensive due process before that result could occur will protect a student, from any arbitrary or capricious imposition of discipline by the school. But a school district may conclude that a parent and student who consistently refuse to accept the direction of school officials should be excluded from the district.

Compulsory Attendance
Education Code Sections 48200 et seq. require each person between the ages of 6 and 18 not exempt to attend school full time. The compulsory attendance requirements may be useful in enforcement of a school district's authority to impose detention in two ways.

First, one of the most common reasons for imposing detention is the repeated unexcused absence, tardiness or departure of a student from school.

Since such unauthorized absences are a violation of compulsory attendance laws, a parent can be told that if a student is not permitted to serve detention, the alternative may be a report of the student as truant pursuant to Education Code Section 48260 et seq.

Second, it may be possible for a school district to assert that any detention it imposes is a part of the student's school day. A failure to attend the detention would be an unexcused (partial) absence. A parent who does not permit a child to attend the required detention might be deemed to have failed and refused to permit the child to attend school.

A parent cannot make an absence excused simply by giving permission for the student to be out of school. (This is an increasingly common response by parents when schools attempt to impose discipline for a child's unauthorized absence or departure from school.) The California Code of Regulations, Title 5, Section 420 defines as excusable absences only those due to illness, quarantine, a doctor's visit and attendance at the funeral of a family member.

Education Code Section 48205 excuses students from school only for justifiable personal reasons, which include court appearances, funerals, observance of religious holidays, employment interviews and caring for a student's own minor child.

Schools should only enforce detentions as violations of compulsory attendance in extreme cases. But a student's failure to comply with any in-school detention or suspension is a failure to comply with the compulsory attendance law. A detention scheduled after the end of the maximum school day is less clearly enforceable, but Section 353 of Title 5 does assume a student can be required to attend for one hour.

Community Service
Education Code Section 48900.6 provides that instead of disciplinary action, the principal of a school may require a student to perform community service on school grounds during non-school hours. "Community service" is defined by the statute to work performed on school grounds in the areas of outdoor beautification, campus betterment and teacher or peer assistance programs. This section, although not specific authority for the traditional study-hall detention, clearly authorizes a disciplinary detention, before or after school or on weekends, during which community service work at the discretion of the school can be required of a student. This disciplinary tool will be easy to enforce in the face of parental stubbornness since it actually appears specifically in a statute.

Lawful Enforcement Tools
Of course, parents who oppose the proper discipline of their children make up only a tiny fraction of the millions of caring parents who send their children to California's public schools. But this tiny fraction can confuse and intimidate teachers and administrators, who justifiably fear that if they persevere in discipline of a child who needs it, they will incur liability in a lawsuit. However, there are lawful tools to enforce school decisions.

We encourage school administrators to ask the Legislature to clarify their authority by enacting language similar to Section 48900.6 to assure that traditional detention is afforded the recognition other disciplinary measures enjoys School officials should never be discouraged from performance of their valuable job of keeping schools safe.

To Contact Liebert Cassidy Whitmore:
Los Angeles 310.981.2000 | Fresno 559.256.7800 | San Francisco 415.512.3000 | San Diego 619.481.5900 info@lcwlegal.com
© 2014 Liebert Cassidy Whitmore