Lame Duck Revisions to MI's Zero Tolerance Laws

Bob Kefgen's picture

Among the legislation that made it across the finish line during lame duck session was a package of bills that seeks to overhaul how Michigan handles zero tolerance suspensions and expulsions. Specifically, the legislation provides greater autonomy for school districts by easing some of the mandatory expulsion provisions previously codified in state law. As is often the case with state law, though, the way these changes was executed is not as simple as the intent.

Even thought these changes DO NOT TAKE EFFECT UNTIL 2017-18, Principals and other school leaders should start planning now for how they are going to implement this new law. To that end, MASSP and MASA are hosting a joint, one-day conference geared toward K-12 administrators, superintendents and first-line leaders, on the provisions of this law and the revisions to restraint and seclusion law that passed during lame duck. Attorneys Lisa Swem and Jeff Butler will review the laws and their implications and help districts identify practical steps to staying out of trouble. Click here for more information.

No More Zero Tolerance

Bottom Line: the practical effect of the changes made by this legislation is to effectively eliminate zero tolerance suspensions and expulsions. The bills accomplish this by requiring that districts consider seven different factors before suspending or expelling a student.

Those factors are:

  • The student's age,
  • The student's disciplinary history,
  • Whether the student has a disability (NOTE: current law already requires that, if there is reasonable cause to believe the student has a disability and has not been evaluated, that evaluation will take place immediately),
  • The seriousness of the violation or behavior,
  • Whether the violation or behavior committed by the student threatened the safety of any student or staff member,
  • Whether restorative practices will be used to address the violation or behavior, and
  • Whether a lesser intervention would properly address the violation or behavior.

Some important things to note beyond the list of factors:

  • These changes DO NOT TAKE EFFECT UNTIL 2017-18.
  • The bills do not define what it means to "consider." This is where you should consult with your local district counsel. At the very least, districts should think about creating a record that they can point to if challenged.
  • Districts must consider these factors for ALL suspensions and expulsions, regardless of the offense.
  • The bills establish a rebuttable presumption that any expulsion or a suspension greater than 10 days is NOT JUSTIFIED unless the district can show that it considered the list of factors. In simple terms, a rebuttable presumption is like "innocent until proven guilty." It is something that is assumed to be true unless proven otherwise (in this case, by considering the listed factors and determining that none of them mitigate). Again, districts should consult with their local legal counsel before implementing changes to district policy.
  • The rules for weapons-related offenses are different because federal law governs them.

Zero Tolerance Offenses: Then and Now

MCL Section Triggering Offense Current Law Beginning in 2017-18
MCL 380.1310 Pupil enrolled in grade 6 or above commits a physical assault against another student at school School shall suspend or expel the pupil from the school district for up to 180 school days Before suspension or expulsion, school shall consider factors above
MCL 380.1311(2) Pupil possesses a dangerous weapon at school; or commits arson at school; or commits criminal sexual conduct at school School shall expel the pupil from the school district permanently (subject to successful petition for reinstatement) Before expulsion for arson or criminal sexual conduct, school shall consider factors above (different process applies when a student possesses a dangerous weapon)
MCL 380.1311A Pupil enrolled in grade 6 or above commits a physical assault against an employee, volunteer, or contractor of the school School shall expel the pupil from the school district permanently (subject to successful petition for reinstatement) Before expulsion, school shall consider factors above
MCL 380.1311(1) Pupil is guilty of gross misdemeanor or persistent disobedience, and school officials believe suspension or expulsion is in the interest of the school School may suspend or expel Before suspension or expulsion, school shall consider factors above

Restorative Practices

In addition to changing the laws around zero tolerance suspensions and expulsions, the bills also include a handful of provisions related to restorative practices:

  • Districts must consider using restorative practices in addition or as an alternative to suspension or expulsion. Nothing in the bills requires districts to implement restorative practices, just to consider using them. The bills have descriptive, but non-binding language around what restorative practices entail.
  • Districts are encouraged to include provisions for restorative practices in their bullying policies.
  • As was noted earlier, whether or not to use restorative practices is one of the provisions that districts must consider when making a decision to suspend or expel a student.

None of these provisions require districts to have or use restorative practices programs. However, in light of these changes to the law, some school attorneys are recommending that districts strongly consider adopting such programs. It is important to consult with your local legal counsel as your district works to adjust policy and procedure going into next school year.

Resources

We strongly recommend that districts review the statute and speak with local legal counsel prior to changing district policy and implementing the new law in 2017-18. To that end, below are resources you may find useful: