31 July 2017

Revised School Code Changes Begin in Michigan

The Transition From “Zero Tolerance” To “Restorative Practices” Begins Now –  Are You Ready?

On August 1, 2017, the much anticipated changes to the Revised School Code, which significantly impact the manner in which public and private Michigan schools are expected to handle suspensions and expulsions, become effective. In short, school officials are now required to develop an approach to student discipline that considers both the use of restorative practices and specific factors before imposing a suspension or expulsion on a student.

Current Zero Tolerance Policies:

Before the change, Sections 1311(2) and 1311a of the Revised School Code mandated expulsion of students who:

  • Knowingly possessed a dangerous weapon in a weapon-free school zone for use as a weapon;
  • Committed arson on school grounds;
  • Committed criminal sexual conduct in a school building or on school grounds; or
  • Physically assaulted a school employee, volunteer or contractor.

Many schools also applied their own zero tolerance policies and automatically long-term suspended or expelled students for various acts of serious misconduct, such as fighting or drug offenses. As long as schools applied these policies evenhandedly so that they did not raise discrimination concerns and complied with special education laws, the schools’ disciplinary decisions were difficult to successfully challenge.

What’s Changing:

Addition of Section 1310d Factors

Now, except for students who are being expelled for possessing a firearm (as opposed to other dangerous weapons) in a weapon-free school zone, Section 1310d of the Revised School Code requires school officials to consider all of the following factors before suspending or expelling a student:

  • The student’s age;
  • The student’s disciplinary history;
  • Whether the student has a disability;
  • The seriousness of the student’s behavior;
  • Whether the behavior threatened the safety of students or staff;
  • Whether restorative practices will be used to address the situation; and
  • Whether the situation may be properly addressed with lesser intervention

The “Rebuttable Presumption”

The new laws also introduce a rebuttable presumption into the Revised School Code. This standard presumes that any expulsion or suspension over 10 days is not justified unless school officials can demonstrate that they considered each of the factors listed in 1310d.  Although there is no rebuttable presumption, school officials must also “consider” the factors for suspensions of 10 days or less.

Additionally, Section 1311(3) creates a rebuttal presumption that an expulsion for possession of a dangerous weapon is not justified if both of the following are met:

  • The school board or its designee determines in writing that at least one of the exculpatory factors listed in 1311(2)(a)-(d) has been established in a clear and convincing manner, and
  • The student has no history of suspension or expulsion

Addition of Section 1310c Restorative Practices

Also added to the Revised School Code is Section 1310c, which mandates that school officials consider using restorative practices as an alternative or in addition to suspension or expulsion. Restorative practices are practices that emphasize repairing the harm to the victim and the school community, and may include requiring the offending student to “apologize; participate in community service, restoration, or counseling; or pay restitution.” Restorative practices may also include victim-offender conferences where the victim, offender, student advocates, and other members of the school community work together to resolve the issue and set consequences for the offender’s behavior. The selected consequences must be incorporated into an agreement that sets time limits for completion of the consequences and is signed by all participants. Under 1310d, “restorative practices should be the first consideration to remediate offenses such as interpersonal conflicts, bullying, verbal and physical conflicts, theft, damage to property, class disruption, and harassment and cyberbullying.” Like the 1310d factors, however, school officials are given the sole discretion over the method used in consideration of these practices.  Indeed, during the legislative discussion of this new law, it was noted that there is no mandate that restorative practices actually be used; only that their use be considered.  This is important because, in some circumstances, restorative practices may not be lawful or appropriate.  For instance, the Office of Civil Rights has made it clear that school officials should not force victims of harassment to meet with their offenders, so that type of restorative practice would not be appropriate in those cases.

Prepare for the 2017-2018 School Year:

Although school officials now have more flexibility in determining how to handle student discipline issues, thereby eliminating almost all zero tolerance policies, a failure to adopt an approach that includes the use of restorative practices and the 1310d factors could result in legal challenges to a school’s disciplinary decisions. Therefore, school officials should revise policies, procedures, handbooks, and student conduct codes to ensure that all incorporate the approach outlined in Michigan Public Acts 360-366.  And because the new law focuses so strongly on the decision-making process, rather than the final result, schools officials need to document that decision-making process.  To that end, we recommend that – for all suspensions and expulsions – school officials incorporate a form or checklist that reflects how they considered the 1310d factors and restorative practices.

If you have any questions or would like more information, please contact the author or any member of the Miller Johnson Education Law practice group.