Haw. Code R. § 8-19-9 - Due process for suspensions exceeding ten days, disciplinary transfer, and dismissal
(a) If, based upon
the investigation, the principal or designee believes that a student engaged in
an activity which constitutes a violation of this chapter, and if the principal
or designee recommends that serious discipline other than crisis removal be
imposed, the principal or designee shall immediately notify the complex area
superintendent to initiate disciplinary proceedings by obtaining verbal
authorization from the complex area superintendent.
(b) Upon obtaining verbal authorization from
the complex area superintendent, the principal or the designee will make a good
faith effort to inform the parent of:
(1) The
serious discipline incident,
(2)
The opportunity to appeal, and
(3)
That the disciplinary action will be implemented
immediately.
(c) Within
three school days of the verbal authorization from the complex area
superintendent, the principal or designee shall mail a written notice of the
serious discipline incident with the appeal form to the parent. A facsimile
signature of or an electronic approval confirmation of the complex area
superintendent on the serious discipline incident form is sufficient. The
written notice of serious discipline shall contain the following statements:
(1) Allegations of the specific acts
committed by the student that form the basis of the serious
discipline;
(2) The allegations of
the specific acts that were substantiated;
(3) A statement of the disciplinary
action(s); and
(4) A statement that
the parent has a right to an appeal to the complex area superintendent at which
time the parent may present evidence, call and cross-examine witnesses, and be
represented by legal counsel and to the extent the parent provides a written
notice of legal representation at least ten calendar days prior to the
appeal.
(5) If the student or
parent would like to file an appeal, the appeal must be submitted in writing
and received by the complex area superintendent by the close of business of the
seventh school day from the date of the issued serious discipline notice. The
student shall be permitted to attend the school of the student pending the
appeal unless the principal finds the continued presence of the student creates
a substantial risk to self or others or to the rights of other students to
pursue their education free from disruption. However, the student shall not
participate in any extracurricular activities, including but are not limited to
athletics, trips, or clubs.
(d) Upon receipt of a written request for an
appeal, the complex area superintendent shall, within ten school days, schedule
an appeal and shall inform the parent of the date, time, and place. Written
notice of the appeal shall be mailed to the parent and principal or designee at
least fifteen calendar days before the appeal. The appeal shall be conducted by
the complex area superintendent or by an impartial department person, or an
impartial designee, who may be an official of the department, designated by the
complex area superintendent. The appeal shall be conducted as follows:
(1) The appeal shall be closed unless the
student or parent requests that it be public;
(2) Parent and principal or designee have the
right to present evidence, cross-examine witnesses, and submit rebuttal
testimony;
(3) Parent and principal
or designee may be represented by legal counsel;
(4) The complex area superintendent or the
impartial department designee need not follow the formal rules of
evidence;
(5) The complex area
superintendent or the impartial department designee shall impartially weigh the
evidence presented;
(6) A parent,
at the parent's own expense, may record or obtain a copy of the department's
tape recording, or transcript of the department's tape recording of the
proceedings only if requested for purposes of court review. The complex area
superintendent or the impartial department designee shall record a transcript
or tape recording of the proceedings;
(7) The complex area superintendent shall no
later than seven school days from the close of the appeal render a decision in
writing stating clearly the action(s) to be taken and the bases for such
actions. The written decision shall be mailed or personally delivered to the
parent, the student's attorney of record, and a copy to the school. If the
disciplinary action is upheld, the complex area superintendent shall indicate
the total number of suspension days and within the suspension beginning and
ending dates take into consideration the number of suspension days the student
may have already senced.
(e) The parent may appeal the decision of the
complex area superintendent by providing written notice of their appeal and a
specific statement whether they are requesting a hearing to the superintendent
of education or state level designee identifying the specific issues and
arguments with supporting documents and evidence the individual is appealing.
The written appeal shall be delivered to the superintendent of education or
state level designee within seven school days of the date of the complex area
superintendent's written decision. If no specific request is made for a
hearing, the superintendent of education or state level designee shall render a
decision based upon the entire record of the proceedings of the complex area
superintendent and the parent submitted on the appeal. The superintendent of
education or state level designee shall render a final written decision. The
student shall be permitted to attend the school of the student pending the
appeal unless the complex area superintendent finds that the continued presence
of the student creates a substantial risk to self or others or to the rights of
other students to pursue their education free from disruption. Where the
student is to be excluded from school pending the appeal, the superintendent of
education or state level designee shall render a decision within twenty-one
calendar days of the date of the receipt of the appeal.
(f) Upon written receipt of an appeal, from
the parent or the parent's legal counsel, the written decision of the complex
area superintendent and all documents and recordings from the proceeding
provided for in subsection (d) of this section shall be forwarded to the
superintendent of education or state level designee within ten calendar days.
The superintendent of education or state level designee shall examine the
evidence and render a decision based on the disciplinary action within fourteen
calendar days. The decision shall be personally delivered or mailed to the
parent or attorney of record. In addition, the parent shall be informed of the
right to submit written exceptions to the decision and to present argument to
the superintendent of education or state level designee. In the event that a
parent should file written exceptions for the length of time of a firearms
dismissal or modification based upon a designee's decision, the written
exception will be heard by the superintendent of education or the state level
designee. Written exceptions and the request to present argument to the
superintendent of education or state level designee must be received within
five calendar days of the date of the decision rendered by the superintendent
of education, designee or state level designee. A parent may submit written
exceptions and waive the right to present argument; however, there will be no
right to present argument without first submitting written exceptions. If the
parent has timely submitted written exceptions and requests the right to
present the argument, the superintendent of education or state level designee
shall, within two school days of receiving the request to present argument,
inform the parent of the specific date, time, and place to present their
arguments. The date for presentation of argument shall be no less than five
calendar days and no more than fourteen calendar days from the date of the
notice informing the parent of the specific date, time, and place to present
their arguments. The superintendent of education or state level designee shall
mail a written decision to the parent or the attorney of record within fourteen
calendar days of the date of the presentation of the argument or in the case
where the parent has waived the parent's right to present argument, within
fourteen calendar days of the receipt of the parent's written exceptions.
Notes
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