Subchapter II. Expulsion of Students.
Part A. General.
§ 38–231. Expulsion of students who bring weapons into public schools.
Absent extenuating circumstances, as determined on a case-by-case basis by the Superintendent of Schools, and consistent with the Individuals With Disabilities Education Act, approved October 30, 1990 (104 Stat. 1141; 20 U.S.C. 1400 et seq.), any student who brings a weapon into a District of Columbia Public School shall be expelled for not less than one year.
§ 38–232. Reference to criminal justice or juvenile delinquency system.
Pursuant to the Gun-Free Schools Act of 1994, approved October 20, 1994 (108 Stat. 3908; 20 U.S.C. 8921 et seq.) [repealed, see now 20 U.S.C. § 7151 ] the Superintendent of Schools shall refer to the criminal justice or juvenile delinquency system, simultaneous with expulsion, any student who is expelled for bringing a weapon into a District of Columbia Public School.
§ 38–233. Alternative educational programs.
The Board of Education shall provide to any student who is expelled from school in accordance with this subchapter an alternative educational program at the D.C. Street Academy, at another existing alternative educational program, or at any alternative educational program that may be established in the future. Not later than 90 days after the effective date of this subchapter:
(1) The Mayor and the Board of Education shall submit a report to the Council delineating a comprehensive plan for providing alternative educational services to a student who has been expelled from a District of Columbia Public School setting.
(2) The comprehensive plan shall include a description of the alternative education services to be provided to an expelled student, each location where the alternative education services shall be provided, and the estimated annual cost of providing the alternative education services.
§ 38–234. Definitions.
(a) For the purposes of this subchapter, the term “weapon” means a firearm and includes:
(1) Any weapon, including a starter gun, which will or is designed to or may be readily converted to expel a projectile by the action of an explosive:
(2) The frame or receiver of any weapon described in this subsection;
(3) Any firearm muffler or firearm silencer; or
(4) Any destructive device; the term “destructive device” means:
(A) Any explosive, incendiary, or poison gas;
(B) Bomb;
(C) Grenade;
(D) Rocket having a propellant charge of more than 4 ounces;
(E) Missile having an explosive or incendiary charge of more than a 1/4 ounce;
(F) Mine; or
(G) Any similar device.
(5) Any type of weapon which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than 1/2 an inch in diameter; and
(6) Any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraphs (e) and (f) of this paragraph and from which a destructive device may be readily assembled.
(b) The term “weapon” shall not include:
(1) An antique firearm;
(2) Any device which is neither designed nor redesigned for use as a weapon; or
(3) Any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device.
Part B. Report. [Recodified]
§ 38–235. Suspension and expulsion report. [Recodified]
Recodified as § 38-236.08.
§ 38–236. Annual reporting requirements. [Recodified]
Recodified as § 38-236.09.
Part C. Student Discipline.
§ 38–236.01. Definitions.
For the purposes of this part, the term:
(1) "Bodily injury" means a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary.
(2) "Community-based organization" shall have the same meaning as provided in § 38-271.01(1A).
(3) "Disciplinary unenrollment" means the expulsion or involuntary transfer of a student from a school.
(4) "Emergency removal" means the immediate out-of-school suspension or disciplinary unenrollment of a student based on the school's reasonable belief that the student's presence poses an immediate and continuing danger to other students or school staff.
(5) "Emotional distress" means mental suffering or distress that requires more than trivial treatment or counseling.
(6) "Exclusion" means the removal of a student from the student's daily class schedule for disciplinary reasons and includes a suspension or a disciplinary unenrollment.
(7) "Expulsion" means the removal of a student from the student's school of enrollment for disciplinary reasons for the remainder of the school year or longer, in accordance with local education agency policy.
(8) "In-school suspension" means temporarily removing a student from the student's regular class schedule as a disciplinary consequence, during which time the student remains on school grounds under the supervision of school personnel who are physically in the same location as the student.
(9) "Involuntary dismissal" means the removal of the student from school attendance for less than 1/2 of a school day for disciplinary reasons, during which time the student is not under the supervision of school personnel and is not allowed on school grounds.
(10) "Involuntary transfer" means the removal of a student from the student's school of enrollment for disciplinary reasons for the remainder of the school year, or longer, and the student's enrollment in another school within the same local education agency, in accordance with local education agency policy.
(10A) "Law enforcement officer" means:
(A) An officer or member of the Metropolitan Police Department or any other police force operating in the District;
(B) An on-duty, civilian employee of the Metropolitan Police Department;
(C) An investigative officer or agent of the United States;
(D) An on-duty, licensed special police officer or security guard;
(E) An on-duty, licensed campus police officer;
(F) An on-duty employee of the Department of Corrections or Department of Youth Rehabilitation Services;
(G) An on-duty employee of the Pretrial Services Agency, Court Services and Offender Supervision Agency, or Superior Court Family Court Social Services Division; or
(H) An employee of the Office of the Inspector General who, as part of their official duties, conducts investigations of alleged felony violations.
(11) "Local education agency" means the District of Columbia Public Schools system or any individual or group of public charter schools operating under a single charter.
(12) "OSSE" means the Office of the State Superintendent of Education established by § 38-201.
(13) "Out-of-school suspension" means the temporary removal of a student from school attendance to another setting for disciplinary reasons, during which time the student is not under the supervision of the school's personnel and is not allowed on school grounds.
(A) The term "out-of-school suspension" includes an involuntary dismissal.
(B) For students with disabilities, the term "out-of-school suspension" includes a removal in which no individualized family service plan or individualized education plan services are provided because the removal is 10 days or fewer as well as removals in which the student continues to receive services according to the student's individualized family service plan or individualized education plan.
(14) "Parent" means a parent, guardian, or other person who has custody or control of a student enrolled in a school in a local education agency.
(15) "Referral to law enforcement" means an action by school personnel to report a student to a law enforcement agency or official, including a school police unit, for an incident that occurs on school grounds, during off-campus school activities, or while taking school transportation.
(16) "School-based intervention" means temporarily removing a student from the student's regular class schedule for the purpose of providing the student with school-based targeted supports, such as behavioral therapy, in response to student conduct that would otherwise warrant an in-school suspension.
(17) "School-related arrest" means an arrest of a student that occurred, or was based on conduct that occurred, at a District of Columbia Public School or public charter school, on its grounds, within a school vehicle or other form of transportation, or at a school-sponsored activity.
(18) "Student with a disability" means a student who qualifies as a child with a disability under section 602(3) of the Individuals with Disabilities Education Act, approved December 3, 2004 (118 Stat. 2652; 20 U.S.C. § 1401(3)).
(19) "Suspension" means an in-school suspension or an out-of-school suspension.
(20) "Willful defiance" means disrupting school activities or intentionally defying the valid authority of school staff.
§ 38–236.02. Application.
This part shall apply to the District of Columbia Public Schools and public charter schools, including the schools' pre-kindergarten programs.
§ 38–236.03. Establishment of school discipline policies.
(a) Local education agencies shall foster positive school climates that engage all students in learning.
(b) Local education agencies shall adopt, in consultation with school personnel, students, and parents, school discipline policies to promote the safety and well-being of students and staff. School discipline policies shall:
(1) Set high expectations for student behavior and adopt an instructional and corrective approach to school discipline;
(2) Permit out-of-school suspension or disciplinary unenrollment as a disciplinary action only to ensure safety and in response to the most serious offenses, as set forth in school policy;
(3) Avoid policies requiring automatic suspension or disciplinary unenrollment for particular behaviors unless otherwise required by law;
(4) Include a plan for continuity of education for any student subject to a suspension, including a mechanism for modifications to the plan to meet the needs of an individual student, as necessary, to facilitate the student's return to the classroom, and appropriate measures to ensure the student:
(A) Continues the student's studies during the suspension and receives all appropriate assignments for the duration of the suspension;
(B) Can communicate with school personnel regarding academic work; and
(C) Upon returning to school, has the opportunity to make up any school work missed during the suspension if the school work cannot be completed by the student during the student's suspension;
(5) Require school personnel to seek and facilitate the involvement of parents in response to an incident resulting in a disciplinary action, particularly with regard to the plan for continuity of education, to the degree that a parent is able to participate;
(6) Identify conduct or categories of conduct, by severity of offense, including conduct that constitutes causing, attempting, or threatening bodily injury or emotional distress, for which a student may be disciplined;
(7) Identify graduated levels of disciplinary action for misbehavior through a list of options available to teachers and administrators for each level of misconduct; provided, that such a list need not be exhaustive;
(8) Describe the local education agency's in-school and out-of-school suspension practice and policy;
(9) Promote disciplinary actions that are individualized, fair, equitable, developmentally appropriate, proportional to the severity of the student's offense, and, if appropriate, restorative;
(10) Provide that school personnel shall consider whether student behavior can be safely and appropriately handled through other disciplinary action before making referrals to law enforcement or seeking school-related arrests in response to student behavior;
(11) Outline procedures for communicating with students and parents regarding disciplinary actions; and
(12) Articulate clearly the due process rights and procedures available to students and parents.
(c) The school discipline policy of a local education agency that operates a pre-kindergarten program shall be consistent with the requirements of § 38-273.03.
(d) A school, or local education agency, as appropriate, shall provide school discipline policies to students and parents and shall provide students and parents with explanations of the policies, including explanations of expectations, rights, and responsibilities of students and parents under the policies. The school, or local education agency, as appropriate, shall make the school discipline policy publicly available, including in a conspicuous place on the school and local education agency's website.
(e) Local education agencies shall proactively evaluate and update school discipline policies and practices to ensure fairness and equity, including by using data and feedback from students, families, and school personnel to identify, reduce, and eliminate discriminatory discipline practices or outcomes and unintended consequences.
§ 38–236.04. Limitations on exclusion as a disciplinary action.
(a) Unless otherwise required by federal or District law:
(1) Beginning in school year 2019-2020, for students in grades kindergarten through 5, and school year 2020-2021 for students in grades 6 through 8, no student may be subject to an out-of-school suspension or disciplinary unenrollment, unless a school administrator determines, consistent with school policy, that the student has willfully caused, attempted to cause, or threatened to cause bodily injury or emotional distress to another person, including behavior that happens off school grounds;
(2) Beginning in school year 2020-2021, no student in grades 9 through 12, except a student over 18 years of age at a school where more than 1/2 of the students are over 18 years of age, may be subject to an out-of-school suspension or disciplinary unenrollment for:
(A) Violating local education agency or school dress code or uniform rules;
(B) Willful defiance; or
(C) Behavior that happens off school grounds and not as part of a school-sponsored activity, unless the student has willfully caused, attempted to cause, or threatened to cause bodily injury or emotional distress to another person.
(b) No student, except a student over 18 years of age at a school where more than 1/2 of the students are over 18 years of age, may be subject to an out-of-school suspension for longer than:
(1) Five consecutive school days for any individual incident in grades kindergarten through 5;
(2) Ten consecutive school days for any individual incident in grades 6 through 12; or
(3) Twenty cumulative school days during an academic year regardless of grade, unless:
(A) The head of a local education agency provides a written justification to the student and parent describing why exceeding the 20-day limit is a more appropriate disciplinary action than alternative responses; or
(B) The student's conduct necessitated an emergency removal, and the head of the local education agency provides a written justification for the emergency removal to the student and parent.
(c) No student, except a student over 18 years of age at a school where more than 1/2 of the students are over 18 years of age, may be subject to an out-of-school suspension or disciplinary unenrollment for an unexcused absence or a late arrival to school; provided, that a student may be unenrolled from a local education agency if the student has accumulated 20 or more consecutive full-school-day unexcused absences.
(d) No student subject to a suspension may be denied the right to continue to access and complete appropriate academic work or to earn credit toward promotion or graduation during a suspension.
(e) The return of a student to school upon conclusion of an out-of-school suspension shall not be made contingent on a parent accompanying the student, attending a conference, or otherwise being present at the school.
(f) Notwithstanding whether a school or local education agency states the reasoning for the removal from school or prohibition from returning to school, no student may be removed from school or prohibited from returning to school for disciplinary reasons, unless the student is subject to an out-of-school suspension or disciplinary unenrollment.
(g) For purposes of due process, a suspension of 6 school days or more shall be considered a long-term suspension.
(h) Repealed.
§ 38–236.05. Exclusion of students with disabilities.
(a) School administrators shall take special consideration regarding the exclusion of a student with a disability.
(b) All of a student's disabilities, as defined in section 3(1)(A) and (B) of the Americans with Disabilities Act, approved July 26, 1990 (104 Stat. 329; 42 U.S.C. § 12102(1)(A)-(B)), of which the school had knowledge shall be considered in a manifestation determination review conducted pursuant to section 615(k)(1)(E) of the Individuals with Disabilities Education Act, approved April 13, 1970 (84 Stat. 175; 20 U.S.C. § 1415(k)(1)(E)).
§ 38–236.06. Support for positive school climate and trauma-informed educational settings.
(a) The Office of the State Superintendent of Education shall provide an array of supports to assist local education agencies and schools to achieve the goals of §§ 38-236.03 through 38-236.05 and to adopt trauma-informed disciplinary practices. The OSSE shall provide local education agencies and schools with, among other supports, the following:
(1) Guidance and materials that inform local education agencies and school communities about developments in the fields of school climates and behavioral management;
(2) Regular, high-quality professional development opportunities and technical assistance, and recommendations for further instruction outside of these opportunities, for local education agency and school personnel on:
(A) Trauma and chronic stress, their effects on students and learning, and effective responses;
(B) Classroom management, positive behavioral interventions, and fostering positive school climate;
(C) Disciplinary approaches that utilize instruction and correction;
(D) Restorative practices and other evidence-based or promising behavioral interventions;
(E) Implementation of high-quality functional behavior assessments, behavioral intervention plans, and manifestation determination reviews, as those terms are used in the Individuals with Disabilities Education Act, approved December 3, 2004 (118 Stat. 2745; 20 U.S.C. § 1400 et seq.); and
(F) Implicit bias and culturally responsive corrective action techniques;
(3) Opportunities for local education agencies and schools to share promising practices regarding the topics in paragraph (2) of this subsection; and
(4) Technical assistance and supportive services to assist local education agencies and schools, as needed and in accordance with policies OSSE adopts, in reducing the use of exclusion by addressing the causes of student misconduct and the development and revision of disciplinary plans.
(b) The OSSE shall collaborate with other government agencies, local education agencies and schools, and postsecondary educational institutions to facilitate the provision of postsecondary degree or certificate programs covering the topics described in subsection (a)(2) of this section, including the identification or creation of a trauma-informed educator certificate program.
(c) For the purpose of providing local education agencies and schools the services set forth in subsection (a) of this section, the OSSE may:
(1) Award a contract or grant to one or more nonprofit organizations;
(2) Award contracts or competitive or formula grants to local education agencies, schools, or partnerships developed among schools or with nonprofit organizations;
(3) Establish a memorandum of understanding with the Department of Behavioral Health or other District agency; or
(4) Any combination of paragraphs (1) through (3) of this subsection.
(c-1) Beginning October 1, 2019, and consistent with the recommendations in the Report of the Task Force on School Mental Health submitted March 26, 2018, the Department of Behavioral Health shall provide local education agencies and schools with non-instructional personnel who have specialized expertise in behavioral health and trauma-informed educational settings to provide local education agencies and schools with broader mental health services, including reducing the use of exclusion by addressing the causes of student misconduct and being available for consultation regarding the development and revision of disciplinary plans.
(d) Within 2 years after August 25, 2018, and every 5 years thereafter, the OSSE shall submit to the Mayor and the Council an evaluative report on local education agency and school implementation of practices to promote school safety and reduce the use of exclusion, which shall:
(1) Be based upon rigorous research techniques, including quantitative and qualitative methods;
(2) Draw on the information maintained and reported pursuant to § 38-236.09, as well as other sources, with a particular focus on:
(A) Ensuring the fidelity of data reporting;
(B) Unanticipated consequences of the disciplinary policies and practices adopted pursuant to this part;
(C) Barriers schools face in implementing the policies and practices required pursuant to this part; and
(D) Effective approaches utilized by schools to avoid reliance on exclusion and reduce disparities in its use;
(3) Provide specific recommendations for further action by the Council, executive branch, and schools; and
(4) Provide suggestions for further research.
§ 38–236.07. School Safety and Positive Climate Fund. [Repealed]
Repealed.
§ 38–236.08. Suspension and expulsion report.
Within 180 calendar days of September 19, 2013, the Office of the State Superintendent of Education shall submit to the Mayor and the Secretary to the Council a report with findings and recommendations to aid each educational institution to eliminate out-of-school suspensions and expulsions, except for those students who pose a reasonable threat of death or serious bodily harm to themselves or others or violate part A of this subchapter [§ 38-231 et seq.].
§ 38–236.09. Annual reporting requirements.
(a) Each local education agency and entity operating a publicly funded community-based organization shall maintain data for each student that includes:
(1) Demographic data including:
(A) The campus attended by the student;
(B) The student’s grade level;
(C) The student’s gender identification;
(D) The student’s race;
(E) The student’s ethnicity;
(F) Whether the student receives special education services;
(G) Whether the student is classified as an English language learner; and
(H) Whether the student is considered at-risk as defined in § 38-2901(2A);
(2) Discipline data including:
(A) Total number of in-school suspensions, out-of-school suspensions, involuntary dismissals, and emergency removals experienced by the student during each school year;
(B) Total number of days excluded from school;
(C) Whether the student was referred to an alternative education setting for the duration of a suspension, and whether the student attended;
(D) Whether the student was subject to a disciplinary unenrollment during the school year;
(E) Whether the student voluntarily withdrew or voluntarily transferred from the school during the school year;
(F) Whether the student was subject to referral to law enforcement;
(G) Whether the student was subject to school-related arrest and the reason for involving law enforcement officers;
(G-i) The type and count of weapons or controlled substances recovered during a school-related arrest; and
(H) A description of the conduct that led to or reasoning behind each suspension, involuntary dismissal, emergency removal, disciplinary unenrollment, voluntary withdrawal or transfer, referral to law enforcement, school-related arrest, recovery of weapons, recovery of controlled dangerous substances, and, for students with disabilities, change in placement; and
(3) Special education services data, including whether a student received during the school year:
(A) A functional behavioral assessment;
(B) An updated behavior improvement plan; or
(C) A manifestation determination review, including the number of suspension days that triggered the review, whether the suspension days were cumulative, and the outcome of the review.
(b) By August 15 of each year, each local education agency or entity operating a publicly funded community-based organization shall submit a report to the Office of the State Superintendent of Education disaggregated by each of the demographic categories identified in subsection (a)(1) of this section. The report shall include:"
(1) The students suspended for:
(A) At least one and no more than 5 days, and whether the suspension was an in-school suspension or an out-of-school suspension;
(B) At least 6 and no more than 10 days and whether the suspension was an in-school suspension or an out-of-school suspension;
(C) More than 10 days and whether the suspension was an in-school suspension or an out-of-school suspension;
(2) The students who received more than one suspension in a school year and whether the suspensions were in-school or out-of-school suspensions;
(3) The students who were referred to an alternative educational setting for the course of a suspension;
(4) The students who received a school-based intervention rather than an in-school suspension, and a description of the school-based intervention;
(5) The students involuntarily dismissed:
(A) At least once and no more than 5 times;
(B) At least 6 times and no more than 10 times;
(C) More than 10 times;
(6) The students subject to emergency removals;
(7) The students subject to a disciplinary unenrollment, disaggregated by type of disciplinary unenrollment;
(8) The students who voluntarily withdrew or transferred;
(9) The students subject to referral to law enforcement;
(10) The students subject to school-related arrest;
(11) A description of the misconduct that led to or reasoning behind each suspension, involuntary dismissal, emergency removal, disciplinary withdrawal, voluntary withdrawal or transfer, referral to law enforcement, school-based arrest, and, for students with disabilities, change in placement;
(12) Whether the student received a functional behavior assessment, an updated behavioral improvement plan, or a manifestation determination review, as those terms are used in the Individuals with Disabilities Education Act, approved December 3, 2004 (118 Stat. 2745; 20 U.S.C. § 1400 et seq.), and the outcomes of those actions; and
(13) Whether the student was subject to suspensions exceeding the time limits described in § 38-236.04(b), and a summary of the written justification provided by the local education agency for those disciplinary actions.
(c)(1) Each local education agency or entity operating a publicly funded community-based organization shall provide the requested data in subsection (b) of this section in a form and manner prescribed by the Office of the State Superintendent of Education.
(2) The OSSE shall collaborate with local education agencies and publicly funded community-based organizations to develop consistent definitions for the types of misconduct and explanations of reasoning required to be maintained or reported pursuant to subsections (a)(2)(H) and (b)(11) of this section.
(d) By December 15 of each year, beginning in 2016, the Office of the State Superintendent of Education shall publicly report on the data provided by local education agencies and community-based organizations in subsection (b) of this section during the preceding school year, including a relevant trend analysis. The report shall include a trend analysis based on available data, including data drawn from the Youth Risk Behavior Survey, school climate surveys, and any other available sources, of the exclusion of students who identify as lesbian, gay, bisexual, questioning of the student's sexual orientation, transgender, gender nonconforming, or questioning of the student's gender identity or expression.
(e) Repealed.
(f) The OSSE, pursuant to subchapter I of Chapter 5 of Title 2, may issue rules to implement the provisions of this section.
