005-28-20 Ark. Code R. § 4

Current through Register Vol. 49, No. 7, July, 2024

Rule 005.28.20-004 - DESE Rules Governing Student Discipline and School Safety

ARKANSAS DIVISION OF ELEMENTARY AND SECONDARY EDUCATION RULES GOVERNING STUDENT DISCIPLINE AND SCHOOL SAFETY

1.00TITLE

1.01 These rules shall be known as the Arkansas Division of Elementary and Secondary Education (Division) Rules Governing Student Discipline and School Safety.

2.00REGULATORY AUTHORITY

2.01 The State Board of Education enacts these rules pursuant to its authority as set forth in Ark. Code Ann. §§ 6-11-105, 6-18-501 et seq., 6-16-1406, and 25-15-201 et seq., and Acts 557, 640, 709, and 1029 of 2019.

3.00PURPOSE

3.01 These rules are designed to assist local school districts with the development, review and revision of student discipline and school safety policies.

4.00DEFINITIONS

4.01 "Attribute" means an actual or perceived personal characteristic including without limitation race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identity, physical appearance, health condition, or sexual orientation.

4.02 "Bullying" means the intentional harassment, intimidation, humiliation, ridicule, defamation, or threat or incitement of violence by a student against another student or public school employee by a written, verbal, electronic, or physical act that may address an attribute of the other student, public school employee, or person with whom the other student or public school employee is associated and that causes or creates actual or reasonably foreseeable:

4.02.1 Physical harm to a public school employee or student or damage to the public school employee's or student's property;

4.02.2 Substantial interference with a student's education or with a public school employee's role in education;

4.02.3 A hostile educational environment for one (1) or more student or public school employees due to the severity, persistence, or pervasiveness of the act; or

4.02.4 Substantial disruption of the orderly operation of the school or educational environment; and

4.02.5 Includes cyberbullying.

4.03 "Course time" means the number of hours of instruction devoted to a single subject during the school week.

4.04 "Cyberbullying" means any form of communication by electronic act that is sent with the purpose to:

4.04.1 Harass, intimidate, humiliate, ridicule, defame, or threaten a student, public school employee, or person with whom the other student or public school employee is associated; or

4.04.2 Incite violence to a student, public school employee, or person with whom the other student or public school employee is associated.

4.05 "Electronic act" means without limitation a communication or image transmitted by means of an electronic device, including without limitation a telephone, wireless phone, or other wireless communications device, computer, or pager.

4.06 "Expulsion" means dismissal from school for a period of time that exceeds ten (10) days.

4.06 "Harassment" means a pattern of unwelcome verbal or physical conduct relating to another person's constitutionally or statutorily protected status that causes, or reasonably should be expected to cause, substantial interference with the other's performance in the school environment.

4.07 "Nontraditional scheduling" means block or other alternative scheduling as defined by the Division.

4.08 "Personal electronic device" means without limitation a:

4.08.1 Cellular telephone;

4.08.2 Paging device;

4.08.3 Beeper;

4.08.4 Mobile telephone that offers advanced computing and Internet accessibility;

4.08.5 Digital media player;

4.08.6 Portable game console;

4.08.7 Tablet, notebook, or laptop computer;

4.08.8 Digital camera; and

4.08.9 Digital video or audio recorder.

4.09 "Substantial disruption" means without limitation that any one (1) or more of the following occur as a result of the bullying:

4.09.1 Necessary cessation of instruction or educational activities;

4.09.2 Inability of students or educational staff to focus on learning or function as an educational unit because of a hostile environment;

4.09.3 Severe or repetitive disciplinary measures are needed in the classroom or during educational activities; or

4.09.4 Exhibition of other behaviors by students or educational staff that substantially interfere with the learning environment.

4.10 "Suspension" means dismissal from school for a period of time that does not exceed ten (10) days.

4.11 "Teacher or school administrator" means a person employed by a school district and required to hold a valid Arkansas standard teaching license, an ancillary license, a provisional license, a technical permit, or an administrator's license issued by the State Board; and a nonlicensed classroom teacher or administrator employed in a position under a waiver from licensure, as a condition of their employment.

5.00STUDENT DISCIPLINE

5.01 Each school district in this state shall develop written student discipline policies in compliance with these rules and shall file the policies with the Division by posting the policies on the school district's website no later than August 1 each year.

5.02 Parents, students, and school district personnel, including teachers, shall be involved in the development of school district student discipline policies.

5.02.1 School districts should attempt to ensure that those involved with the development of school district student discipline policies come from diverse racial, gender, and socioeconomic backgrounds and that the group consist of a sufficient number of individuals to provide broad representation within the district.

5.03 Student discipline policies shall include, without limitation, the following offenses:

5.03.1 Willfully and intentionally assaulting or threatening to assault or abuse any student or teacher, principal, superintendent, or other employee of a school system;

5.03.2 Possession by students of any firearm or other weapon prohibited upon the school campus by law or by policies adopted by the school board of directors;

5.03.3 Using, offering for sale, or selling, beer, alcoholic beverages, or other illicit drugs, by students on school property; and

5.03.4 Willfully or intentionally damaging, destroying, or stealing school property by students.

5.04 Student discipline policies shall:

5.04.1 Prescribe minimum and maximum penalties, including without limitation, students' suspension or expulsion from school, for violations of any of the offenses listed in 5.03 above, and for violations of other practices prohibited by school discipline policies; however, the superintendent shall have discretion to modify the prescribed penalties for a student on a case-by-case basis;

5.04.2 Prescribe expulsion from school for a period of one (1) year for possession of any firearm or other weapon prohibited upon the school campus by law, provided, however, that the superintendent shall have discretion to modify such expulsion requirement for a student on a case-by-case basis;

5.04.2.1 The policy shall require parents, guardians, or other persons in loco parentis of a student expelled for possession of a firearm or other prohibited weapon to sign a statement acknowledging that the parents have read and understand current laws regarding the possibility of parental responsibility for allowing a child to possess a weapon on school property.

5.04.2.2 The statement shall be signed by the parents, guardians, or other persons in loco parentis before readmitting a student or enrolling a student in any public school immediately after the expiration of the expulsion.

5.04.2.3 School administrators and the local school district board shall complete the expulsion process of any student that was initiated because the student possessed a firearm or other prohibited weapon on school property regardless of the enrollment status of the student.

5.04.3 Establish procedures for notice to students and parents of charges, hearings, and other due process proceedings to be applicable in the enforcement and administration of such policies by the school administrator and by the school board of directors;

5.04.4 Include prevention, intervention, and conflict resolution provisions;

5.04.5 Set forth the role and authority of public school employees and volunteers;

5.04.6 Include a provision for the seizure by school personnel of hand-held laser pointers in the possession of students;

5.04.7 Establish procedures for responding to reports received through the school safety and crisis line under Ark. Code Ann. § 6-18-111;

5.04.8 Include a provision prohibiting students from wearing, while on the grounds of a public school during the regular school day and school-sponsored activities and events, clothing that exposes underwear, buttocks, or the breast of a female, and the disciplinary action(s) that will be taken against a student for violation.

5.04.8.1 This policy shall not apply to a costume or uniform worn by a student while participating in a school-sponsored activity or event and shall not be enforced in a manner that discriminates against a student on the basis of his or her race, color, religion, sex, disability, or national origin.

5.04.9 Include programs, measures, or alternative means and methods to continue student engagement and access to education during periods of suspension or expulsion;

5.04.10 Include provisions for placement of a student with disciplinary, socially dysfunctional, or behavioral problems not associated with a physical or mental impairment or disability in an alternative learning environment provided by the district. Behavioral problems include being at risk of not satisfactorily completing a high school education; and

5.04.11 Provide that parents and students will be advised of the rules and regulations by which the school is governed and will be made aware of the behavior that will call for disciplinary action and the types of corrective actions that may be imposed.

5.04.11.1 Each school district shall develop a procedure for written notification to all parents and students of the district's student discipline policies and for documentation of the receipt of the policies by all parents and students.

5.05 A school district may establish a written student discipline policy and exemptions concerning the possession and use by a student of a personal electronic device:

5.05.1 On school property;

5.05.2 At an after-school activity; or

5.05.3 At a school-related function.

5.05.4 The policy may, without limitation:

5.05.4.1 Allow or restrict the possession and use of a personal electronic device;

5.05.4.2 Allow the use of a personal electronic device in school for instructional purposes at the discretion of a teacher or administrator;

5.05.4.3 Limit the times or locations in which a personal electronic device may be used to make telephone calls, send text messages or emails, or engage in other forms of communication;

5.05.4.4 Allow or prohibit the use of any photographic, audio, or video recording capabilities of a personal electronic device while in school;

5.05.4.5 Exempt the possession or use of a personal electronic device by a student who is required to use such a device for health or another compelling reason;

5.05.4.6 Exempt the possession or use of a personal electronic device after normal school hours for extracurricular activities; and

5.05.4.7 Include other relevant provisions deemed appropriate and necessary by the school district.

5.06 Nothing in any student discipline policies promulgated under state law and these rules shall limit or restrict the bringing of criminal charges against any person for violating the criminal laws of this state.

5.06.1 The school principal, or in his or her absence the principal's designee, shall make a reasonable, good faith effort to notify the student's parent or legal guardian, or other person having lawful control of the student by court order, or person standing in loco parentis, listed on the student's enrollment forms, if the school or school district, with respect to a student under the age of eighteen (18):

5.06.1.1 Makes a report to any law enforcement agency concerning student misconduct;

5.06.1.2 Grants law enforcement personnel other than a school resource officer acting in the normal course and scope of his or her assigned duties access to a student; or

5.06.1.3 Knows that a student has been taken into custody by law enforcement personnel during the school day or while under school supervision.

5.06.2 The school principal or the principal's designee shall notify the student's parent, legal guardian, or other person having lawful control of the student under an order of court or person acting in loco parentis that the student has been reported to, interviewed by, or taken into custody by law enforcement personnel.

5.06.3 If the principal or the principal's designee is unable to reach the parent, he or she shall make a reasonable, good faith effort to get a message to the parent to call either the principal or the principal's designee and leave both a day and an after-hours telephone number.

5.06.4 The notification required by 5.06.1 and 5.06.2 is not required if school personnel make a report or file a complaint based on suspected child maltreatment as required under § 12-18-401 et seq. or if a law enforcement officer, investigator of the Crimes Against Children Division of the Department of Arkansas State Police, or Department of Human Services investigator or personnel member interviews a student during the course of an investigation of suspected child maltreatment.

5.06.5 The principal or the principal's designee shall not provide notification under 5.06.1 or 5.06.2 if a request is made to interview a student during the course of an investigation of suspected child maltreatment and a parent, guardian, custodian, or person standing in loco parentis is named as an alleged offender.

5.06.5.1 The investigator shall provide the school with documentation that notification to the parent, guardian, custodian, or person standing in loco parentis is prohibited.

5.06.5.2 The request to interview under 5.06.5 must be made by:

5.06.5.2.1 A law enforcement officer;

5.06.5.2.2 An investigator of the Crimes Against Children Division of the Department of Arkansas State Police; or

5.06.5.2.3 An investigator or employee of the Department of Human Services.

5.07 The student discipline policies and State and district discipline data shall be reviewed annually by the school district's committee on personnel policies. The committee may recommend changes in the policies to the board of directors of the local school district based on the committee's review.

5.08 Any amendments or revisions to a school district's student discipline policies shall be developed and adopted in the same manner as the original policies as required by law, consistent with these rules, and submitted to the Division within thirty (30) days after the adoption of such amendment or revision.

5.09 The Division shall monitor compliance with the requirements of these rules and of Ark. Code Ann. §§ 6-18-502 and 6-18-503. Any school district failing to file with the Division disciplinary policies that meet the requirements of law and these rules shall have all state aid funds withheld until such disciplinary policies are filed with the Division as required by these rules.

5.10 Teachers and administrators, classified school employees, and volunteers shall be provided with appropriate student discipline, behavioral intervention, and classroom management training and support.

5.11 Consistent with state and federal law, in order to maintain effective discipline in the classroom, a teacher may remove from class and send to the principal's or principal's designee's office, a student:

5.11.1 Who has been documented by the teacher as repeatedly interfering with the teacher's ability to teach the students in the class or with the ability of the student's classmates to learn; or

5.11.2 Whose behavior the teacher determines is so unruly, disruptive, or abusive that it seriously interferes with the teacher's ability to teach the students in the class or with the ability of the student's classmates to learn.

5.11.3 If a teacher removes a student from class in accordance with 5.11, the principal or his or her designee may:

5.11.3.1 Place the student into another appropriate classroom, into in-school suspension, or into the district's alternative learning environment, so long as such placement is consistent with the school district's written policies, and state and federal law and rules;

5.11.3.2 Return the student to the class; or

5.11.3.3 Take other appropriate action consistent with the school district's discipline policy, state law, and federal law.

5.11.4 If a teacher removes a student from class, in accordance with 5.11, two (2) times during any nine-week grading period or its equivalent, the principal or the principal's designee may not return the student to the teacher's class unless a conference is held for the purpose of determining the causes of the problem and possible solutions, with the following individuals present:

5.11.4.1 The principal or the principal's designee;

5.11.4.2 The teacher;

5.11.4.3 The school counselor;

5.11.4.4 The parents, guardians, or persons in loco parentis; and

5.11.4.5 The student, if appropriate.

5.11.4.6 The failure of the parents, guardians, or persons in loco parentis to attend the conference provided for in this subsection shall not prevent the conference from being held nor prevent any action from being taken as a result of that conference, provided that the parents, guardians, or persons in loco parentis have been offered the opportunity to participate.

5.12 If a school employee believes that any action taken by the school district to discipline a student referred by that employee does not follow student discipline policies, the school employee may appeal under the district's grievance procedure as provided under § 6-17-208.

SUSPENSION and EXPULSION

5.13 The board of a school district may suspend or expel any student from school for violation of the school district's written discipline policies, with the following exceptions:

5.13.1 A school district shall not use out-of-school suspension as a discipline measure for truancy; and

5.13.2 A school district shall not use out-of-school suspension or expulsion for a student in kindergarten through grade five (K-5) except in cases when a student's behavior:

5.13.2.1 Poses a physical risk to himself or herself or to others; or

5.13.2.2 Causes a serious disruption that cannot be addressed through other means.

5.14 A school district board may authorize a teacher or an administrator to suspend any student for a maximum of ten (10) school days for violation of the school district's written discipline policies, subject to appeal to the superintendent or his or her designee.

5.14.1 However, schools that utilize nontraditional scheduling may not suspend students from more course time than would result from a ten-day suspension under the last traditional schedule used by the school district.

5.15 If the superintendent initiates the suspension process, the decision may be appealed to the board of directors.

5.16 A superintendent may recommend the expulsion of a student for more than ten (10) days for violation of the school district's written discipline policies, subject to appeal to the board of directors and to requirements of the Individuals with Disabilities Education Act, 20 U.S.C. § 1401 et seq.

5.16.1 After hearing all testimony and debate on a suspension, expulsion, or appeal, the board of directors may consider its decision in executive session without the presence of anyone other than the board members.

5.16.2 At the conclusion of an executive session, the board of directors shall reconvene in public session to vote on the suspension, expulsion, or appeal.

5.16.3 A school district board meeting entertaining an appeal shall be conducted in executive session if requested by the parent or guardian of the student provided that after hearing all testimony and debate, the board of directors shall conclude the executive session and reconvene in public session to vote on such appeal.

5.17 Upon suspension of a student, the school shall immediately contact the student's parent or legal guardian to notify the parent or legal guardian of the suspension.

5.17.1 Each parent or legal guardian shall provide the school:

5.17.1.1 A primary call number. If the call number changes, the parent or legal guardian shall notify the school of the new primary call number;

5.17.1.2 An email address if the parent or legal guardian does not have a telephone; or

5.17.1.3 A current mailing address if the parent or legal guardian does not have a telephone or email address.

5.17.2 The contact required in this subsection is sufficient if made by:

5.17.2.1 Direct contact with the parent or legal guardian at the primary call number or in person;

5.17.2.2 Leaving a voice mail at the primary call number;

5.17.2.3 Sending a text message to the primary call number;

5.17.2.4 Email if the school is unable to make contact through the primary call number; or

5.17.2.5 Regular first-class mail if the school is unable to make contact through the primary call number or email.

5.17.3 The school shall keep a notification log of contacts attempted and made to the parent or legal guardian.

5.17.4 A public school shall indicate on a student's attendance record if a student's absence is the result of an out-of-school suspension.

5.18 A public school district or open-enrollment public charter school that expels a student, shall offer to the expelled public school student digital learning courses or other alternative educational courses for which the student may receive academic credit that is at least equal to credit the expelled public school student may have received if he or she was still enrolled in his or her assigned public school or open-enrollment public charter school immediately before he or she was expelled.

5.19 The principal of each school shall report, within a week, to the Division, the name, current address, and social security number of any student who is expelled for possessing a firearm or other prohibited weapon on school property or for committing other acts of violence.

5.19.1 The expulsion shall be noted on the student's permanent school record.

5.19.2 Nothing in Section 5.19 of these rules shall be construed to limit a superintendent's discretion to modify the expulsion requirement for a student on a case-by-case basis.

5.19.3 The Division shall maintain information regarding students who are expelled for possessing a firearm or other prohibited weapon on school property or for committing other acts of violence.

5.20 The board of directors of a school district may adopt a policy that any person who has been expelled as a student from any other school district may not enroll as a student until the time of the student's expulsion has expired, provided that the receiving school district board affords the student the opportunity for a hearing at the time the student is seeking enrollment.

CORPORAL PUNISHMENT

5.21 A school district that authorizes the use of corporal punishment in its discipline policy shall include provisions for administration of the punishment, including that it be administered only for cause, be reasonable, follow warnings that the misbehavior will not be tolerated, and be administered by a teacher or a school administrator and only in the presence of a school administrator or his or her designee, who shall be a teacher or an administrator employed by the school district.

5.21.1 A school district that authorizes use of corporal punishment, shall not:

5.21.1.1 Use corporal punishment on a child who is intellectually disabled, non-ambulatory, non-verbal, or autistic; or

5.21.1.2 Include in its written student discipline policy, a provision to allow the use of corporal punishment on a child who is intellectually disabled, non-ambulatory, non-verbal, or autistic.

6.00ANTI-BULLYING

6.01 Bullying of a public school student or a public school employee is prohibited.

6.02 Each public school district board of directors shall adopt policies to prevent bullying. The policies shall:

6.02.1 Clearly define conduct that constitutes bullying and shall include the definition contained in Ark. Code Ann. § 6-18-514 and these rules;

6.02.2 Prohibit bullying while in school, on school equipment or property, in school vehicles, on school buses, at designated school bus stops, at school-sponsored activities, or at school-sanctioned events;

6.02.3 Prohibit cyberbullying that results in the substantial disruption of the orderly operation of the school or educational environment, whether or not the cyberbullying originated on school property or with school equipment if the cyberbullying is directed specifically at students or school personnel and maliciously intended for the purpose of disrupting school and has a high likelihood of succeeding in that purpose;

6.02.4 State the consequences for engaging in the prohibited conduct, which may vary depending on the age or grade of the student involved;

6.02.5 Require that a school employee who has witnessed or has reliable information that a pupil has been a victim of an incident of bullying as defined by the public school district shall report the incident to the principal as soon as possible;

6.02.6 Require that any person who files a credible report or makes a complaint of bullying shall not be subject to retaliation or reprisal in any form;

6.02.7 Require that notice of what constitutes bullying, that bullying is prohibited, and that the consequences of engaging in bullying be conspicuously posted in every classroom, cafeteria, restroom, gymnasium, auditorium, and school bus in the district;

6.02.8 Require that copies of the notice of what constitutes bullying, the prohibition of bullying, and the consequences of engaging in bullying be provided to parents and legal guardians, students, school volunteers, and employees of the public school annually;

6.02.9 Require that a full copy of the policy be made available upon request;

6.02.10 Describe the procedures for reporting an incident of bullying and the steps school employees may take in order to address a report of an alleged incident of bullying; and

6.02.11 Include information on how to make an anonymous report to the school safety and crisis line under Ark. Code Ann. § 6-18-111.

6.03 A notice of the public school district's policies shall appear in any publication of the public school district that sets forth the comprehensive rules, procedures, and standards of conduct for public schools within the public school district, and the student handbook.

6.04 The public school district shall, to the extent required, annually conduct a reevaluation, reassessment, and review of its policies regarding the prohibition of bullying and make any necessary revisions and additions.

6.05 A public school district shall provide training on compliance with the anti-bullying policies to all public school district employees responsible for reporting or investigating bullying.

6.06 A public school employee who has reported violations under the public school district's policy shall be immune from any tort liability that may arise from the failure to remedy the reported incident of bullying.

6.07 The public school district board of directors may provide opportunities for school employees to participate in programs or other activities designed to develop the knowledge and skills to prevent and respond to acts covered by the public school district's policies.

6.08 The public school district shall provide the Division with the website address at which a copy of the policies adopted in compliance with these rules may be found.

6.09 Nothing in these rules shall be construed to:

6.09.1 Restrict a public school district from adopting and implementing policies against bullying and school violence or policies to promote civility and student dignity that are more inclusive than the policies prohibiting bullying required under these rules;

6.09.2 Unconstitutionally restrict protected rights of freedom of speech, freedom of religious exercise, or freedom of assembly;

6.09.3 Affect the provisions of any collective bargaining agreement or individual contract of employment in effect on July 24, 2019; or

6.09.4 Alter or reduce the rights of a student with a disability with regard to disciplinary action or to general or special educational services and support.

6.10 If an alleged incident of bullying occurs during school hours, a public school principal or his or her designee who receives a credible report or complaint of bullying shall:

6.10.1 As soon as reasonably practicable:

6.10.1.1 Report to a parent or legal guardian of a student believed to be the victim of an incident of bullying that his or her child is the victim in a credible report or complaint of bullying; and

6.10.1.2 Prepare a written report of the alleged incident of bullying; and

6.10.2 Promptly investigate the credible report or complaint.

6.10.2.1 The investigation shall be completed as soon as possible but not later than five (5) school days from the date of the written report of the alleged incident of bullying.

6.10.2.2 Following the completion of the investigation into the alleged incident of bullying, an individual licensed as a public school district building-level administrator or his or her designee may without limitation:

6.10.2.2.1 Provide intervention services;

6.10.2.2.2 Establish training programs to reduce bullying;

6.10.2.2.3 Impose discipline on any of the parties involved in the incident of bullying in accordance with state and federal law and rules and district policy;

6.10.2.2.4 Recommend counseling for any of the parties involved in the incident of bullying; or

6.10.2.2.5 Take or recommend other appropriate action.

6.10.3 Notify the parent or legal guardian of the student who is determined to have been the perpetrator of the incident of bullying:

6.10.3.1 Upon completion of the investigation; and

6.10.3.2 Regarding the consequences of continued incidents of bullying.

6.10.3.3 A parent or legal guardian of a student who is the victim or perpetrator of an incident of bullying is entitled within five (5) school days after the completion of the investigation, and in accordance with federal and state law, to receive information about the investigation, including without limitation:

6.10.3.3.1 That a credible report or complaint of bullying exists;

6.10.3.3.2 Whether the credible report or complaint of bullying was found to be true based on the investigation;

6.10.3.3.3 Whether action was taken upon the conclusion of the investigation of the alleged incident of bullying; and

6.10.3.3.4 Information regarding the reporting of another incident of bullying.

6.10.4 Make a written record of the investigation and any action taken as a result of the investigation.

6.10.4.1 The written record of the investigation shall include a detailed description of the alleged incident of bullying, including without limitation a detailed summary of the statements from all material witnesses to the alleged incident of bullying; and

6.10.5 Discuss, as appropriate, the availability of counseling and other intervention services with students involved in the incident of bullying.

6.11 One (1) time each school year, the superintendent of a public school district shall report to the public school district board of directors at a public hearing data regarding discipline in the public school district, including without limitation the number of incidents of bullying reported and the actions taken regarding the reported incidents of bullying.

005.28.20 Ark. Code R. § 004

Adopted by Arkansas Register Volume MMXX Number 14, Effective 8/22/2020