Coronavirus (COVID-19): Dealing With Student Discipline During COVID-19 Closures

Creating a positive school environment, where children can learn and thrive, is a goal of all schools. One of the ways many charter schools do this is by creating student rules of expected behavior, commonly referred to as a Student Code of Conduct (“Code”) that lays out the behaviors that schools have determined are significant to their successful operation and culture. This need remains even at a time when the traditional structure schools use to deliver education has radically shifted from in-person instruction to remote online learning. So, what does maintaining a positive learning environment look like in a remote, primarily online context? What standards of behavior are expected, and what consequences can schools implement virtually since exclusion of extra-curricular activities, traditional suspension, detention, and other more common consequences are not viable?

Regardless of whether instruction is primarily online or in person, charter schools still have a responsibility for complying with applicable federal and state law regarding discipline. One important element of that relates to special education. Schools need to be mindful of the rules governing discipline for students with disabilities, even in the present environment, including those relating to punishments that are determined to be a manifestation of a disability. Working with CSEs to make decisions in the current environment will require flexibility.

In addition, in NY, charter schools should abide by the Dignity for all Students Act, which requires that schools provide a safe and supportive learning environment free from discrimination, taunting, harassment and bullying, including cyber-bullying which is particularly relevant in today’s environment. Cyber-bullying is the use of technology to deliberately harass, threaten or intimate others.  It can take many forms, including, electronic harassment, outing, exclusion, spamming and trickery through chat rooms or online activity. If a student’s educational environment is disrupted due to another student’s intentional harassment through electronic communication, schools are required to investigate, and respond in an appropriate matter to end such harassment. Other possible infractions that may arise in a remote setting could include disruptive classroom behavior during ‘live’ remote instruction, faking attendance, plagiarism, cheating during exams (asking other students for answers, looking up answers on another device, or having someone else within the home complete an exam). Another infraction that schools have seen a rise in over recent years is the exchange of pornographic images between students, otherwise known as sexting. This includes students initially consensually sharing images between each other, which later are re-circulated to a larger student body without permission. These are difficult circumstances for schools to handle under normal circumstances and may become even more challenging with students at home constantly on remote devices.

Schools may choose to create a revised Code of Conduct or an addendum to the current Code of Conduct to address the challenges posed by a virtual learning environment. This new code or addendum can be tailored to your school’s mission and aligned with the different electronic resources you have available to students and challenges you anticipate facing in your school community. It may also be worth having a parent and student conference to explain the expectations of remote instruction. Students and parents may not understand that looking on Google to answer a question on an exam could be considered cheating, or understand what plagiarism is.

The new and revised code can impose potential consequences such as limiting a student’s ability to participate in a chat room or other ‘fun’ online activity. Schools may also want to require students to write a reflective essay or attend a virtual mediation with students when the Remote Code is violated.  Another possibility could be to have a reward system, giving students points for stellar remote contributions and participation, perhaps highlighting them as remote students of the week/month.  Schools can have a virtual assembly highlighting achievement or allow students to certain perks in the online environment, or a promise of one when traditional schooling resumes.

For more egregious violations that may result in suspension or expulsion, schools may want to proceed with holding a formal discipline hearing once school is back in session, either later this school year, or the beginning of the coming school year. Suspending a student from instruction in a remote environment would be challenging since schools are still responsible for providing alternative instruction during suspension. Proper legal notifications would be required shortly after the infraction occurs, as students are entitled to the same due process protections. While this is not traditionally done, these are not traditional times, and it may be prudent to draft language that allows schools flexibility to make disciplinary decisions when buildings reopens.

Jaime A. Fernand is a New York-based education attorney and Of Counsel at the law firm Barton Gilman LLP.  You may also be interested in her podcast discussing these issues, which can be found at:  https://www.bglaw.com/legal-lowdown-podcast-episode-13-covid-19-student-discipline-in-the-virtual-classroom/

About Barton Gilman

Barton Gilman provides the full scope of legal services to education clients – including traditional and non-traditional public schools, charter schools, charter management organizations, private schools, education advocacy organizations and other education-related organizations – throughout Massachusetts, Rhode Island and New York. For more information, please click here.