Issues and Topics
What responsibilities do schools have for student conduct?
Code of Virginia § 22.1-253.13:7.C.3 requires local school boards to maintain and follow an up-to-date policy manual that includes “standards of student conduct and attendance and enforcement procedures designed to provide that public education be conducted in an atmosphere free of disruption and threat to persons or property and supportive of individual rights.”
Section 22.1-78. of the Code authorizes local school boards to adopt by-laws and regulations “for its own government, for the management of its official business and for the supervision of schools, including but not limited to the proper discipline of students, including their conduct going to and returning from school.”
Section 22.1-279.6 of the Code requires local school boards to adopt and revise regulations on codes of student conduct that are consistent with, but may be more stringent than, the guidelines of the Board. School boards are required to include procedures for suspension, expulsion, and exclusion decisions and biennially review student conduct code guidelines to include prohibitions against hazing and profane or obscene language or conduct. School boards are authorized to regulate certain communications devices and, at their discretion, require or encourage drug testing.
Section 22.1-279.9 of the Code requires school boards, in cooperation with the local law enforcement agencies, juvenile and domestic relations court judges and personnel, parents, and the community-at-large, to develop programs to prevent violence and crime on school property and at school-sponsored events, which shall include prevention of hazing.
Key resource documents related to student conduct are:
- Virginia Board of Education Student Conduct Policy Guidelines (PDF)
- Parents Guide to Student Discipline Policies (PDF)
What are discipline procedures when the student is in special education?
Requirements related to students with disabilities are contained under “8VAC20-81-160. Discipline procedures.” The Department of Education has guidance on this topic: Discipline Procedures in Regulations Governing Special Education Programs for Children with Disabilities in Virginia (PDF)
In addition, refer to the Virginia Department of Education’s Guidance Document on the Implementation of the Regulations Governing Special Education Programs for Children with Disabilities in Virginia, 2009 (PDF)
Can a student be spanked at school for misbehaving?
No. Code of Virginia § 22.1-279.1 “No teacher, principal or other person employed by a school board or employed in a school operated by the Commonwealth shall subject a student to corporal punishment.” Corporal punishment means inflicting physical pain on a student as a means of discipline.
It is important to understand that the law against corporal punishment does not prevent:
- the use of incidental, minor, or reasonable physical contact or other actions designed to maintain order and control;
- use of reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance which threatens physical injury to persons or damage to property;
- the use of reasonable and necessary force to prevent a student from inflicting physical harm on himself;
- the use of reasonable and necessary force for self-defense or the defense of others; or
- the use of reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or paraphernalia which are upon the person of the student or within his or her control.
The definition of corporal punishment does not include physical pain, injury, or discomfort caused by participation in practice or competition in an interscholastic sport, or participation in physical education or an extracurricular activity.
Under what circumstances can a teacher remove a student from a classroom?
Code of Virginia § 22.1-276.2 gives teachers the authority to remove a student from a classroom for disruptive behavior in accordance with local school board policy. Disruptive behavior is defined at Code of Virginia § 22.1-276.01 as “conduct that interrupts or obstructs the learning environment.” When a student is removed from class, parents will be offered the opportunity to meet with the teacher and school administrators to address student behavior and possible consequences if such behavior does not cease.
Which offenses can result in expulsion?
School boards may consider expelling students who commit two types of offenses:
- bringing to school firearms or other destructive devices defined in the federal Gun-Free Schools Act of 1994 (Code of Virginia § 22.1-277.07) and
- bringing drugs, imitation drugs, or marijuana onto school property or to a school-sponsored event (Code of Virginia § 22.1-277.08).
Expulsions for other types of offenses are required to be based on consideration of the following:
- the nature and seriousness of the violation;
- the degree of danger to the school community;
- the student's disciplinary history;
- the appropriateness and availability of an alternative education placement or program;
- the student's age and grade level;
- the results of any mental health, substance abuse, or special education assessments;
- the student's attendance and academic records; and
- such other matters as deemed to be appropriate.
For drug offenses, a school board, in accordance with Code of Virginia § 22.1-277.08, may determine, based on the facts of a particular case, that special circumstances exist and another disciplinary action is appropriate.
What action can a school take when a student violates student conduct policy but claims he acted in self defense?
According to Virginia Board of Education Student Conduct Policy Guidelines,
“A code of student conduct may, but is not required to, address consideration of self-defense as a factor in determining appropriate disciplinary action. Procedures for such consideration should include an opportunity for the student(s) to present the student’s version of what occurred, as well as a review of facts, involving school personnel and others as appropriate. The fact-seeking process may include students and other staff who may have witnessed the incident or have observed previous interactions between the students involved. In cases where self-defense is claimed, there may be a “history” between the students that often takes the investigation beyond looking at the single incident to examining patterns of interaction, past threats, and bullying. Persons from whom information is obtained could include a bus driver, other students, and parents.
School boards developing disciplinary policies including self-defense should provide criteria that define when an incident would be considered an act of self-defense. Based on the criteria used in the judicial system for a claim of self-defense to apply, the following conditions should be met. The person claiming self-defense must:
- be without fault in provoking or bringing on the fight or incident;
- have reasonably feared, under the circumstances as they appeared to him, that he was in danger of harm; and
- have used no more force than was reasonably necessary to protect him from the threatened harm.
A school board’s policy addressing self-defense should retain a prohibition for bringing weapons of any kind to school for the purpose of self-defense and explicitly state that self-defense does not constitute a valid defense against possession or use of a weapon on school property or at any school-sponsored activity.”
What responsibilities do parents have related to school?
Code of Virginia § 22.1-279.3 sets forth the duty of each parent of a student enrolled in a public school to assist the school in enforcing the standards of student conduct and compulsory school attendance. Procedures are set forth for notifying parents of their responsibilities, documenting the notification, and taking steps against parents for willful and unreasonable refusal to participate in efforts to improve their child's behavior or school attendance. Each parent of a student must sign a statement acknowledging the receipt of the school board’s standards of student conduct and return it to the school.
Code of Virginia § 22.1-3.2.A. and B. requires a parent or guardian to provide a public school, upon registration of a student, information concerning criminal convictions or delinquency adjudications for any offense listed in subsection G of § 16.1-260. These include homicide, felonious assault and bodily wounding, criminal sexual assault, manufacture, sale, or distribution of Schedule I or II controlled substances or marijuana, arson, burglary and robbery, prohibited street gang activity, and recruitment for street gang activity. When the school registration results from foster care placement, the information is to be furnished by the local social services agency or licensed child-placing agency that made the foster care placement.
What is considered child abuse or neglect?
Code of Virginia § 63.2-100 defines an abused or neglected child as any child under 18 years of age whose parent or any person responsible for his or her care (such as a child care provider, foster parent, or anyone responsible for the welfare of a child receiving residential care at an institution):
- causes or threatens to cause a non-accidental physical or mental injury;
- has a child present during the manufacture or attempted manufacture of a controlled substance or during the unlawful sale of such substance where such activity would constitute a felony violation;
- neglects or refuses to provide adequate food, clothing, shelter, emotional nurturing, or health care;
- abandons the child;
- neglects or refuses to provide adequate supervision in relation to a child’s age and level of development;
- knowingly leaves a child alone in the same dwelling with a person, not related by blood or marriage, who has been convicted of an offense against a minor for which registration is required as a violent sexual offender; or
- commits or allows to be committed any illegal sexual act upon a child, including incest, rape, indecent exposure, prostitution, or allows a child to be used in any sexually explicit visual material.
In addition, newborn infants who have been medically diagnosed for exposure to nonprescription, controlled substances during pregnancy are also considered to be at risk of abuse or neglect. Attending physicians are required to report these children.
What responsibilities do schools have for reporting suspected child abuse or neglect?
Code of Virginia § 63.2-1509. requires any teacher or other person employed in a public or private school, kindergarten or nursery school who, in their professional or official capacity, has reason to suspect that a child is an abused or neglected child to report the matter immediately to the local department of the county or city wherein the child resides or wherein the abuse or neglect is believed to have occurred or to the department's toll-free child abuse and neglect hotline.
What protections do school personnel have from being sued by a parent for reporting child abuse or neglect?
Code of Virginia § 63.1-1512 states that any person making such a report shall be immune from any civil or criminal liability in connection with the reporting unless it can be proven that the person acted in bad faith or with malicious intent.
See the Virginia Department of Social Services' publication, A Guide for Mandated Reporters in Recognizing and Reporting Child Abuse and Neglect
What responsibilities do schools have for student scholastic records?
State law requires that every student's scholastic record be made available to the student and his parent, guardian, or other person having control or charge of the student for inspection during the regular school day. Permission of the parent, guardian, or other person having control or charge of the student, or of a student who is 18 years of age or older, is required for the transfer of a scholastic record to another school or school division. Consistent with federal law and regulation, every school is required to annually notify parents of students of their rights under the federal Family Educational Rights and Privacy Act (FERPA) and related regulations.
Code of Virginia § 22.1-287 sets forth limitations on access to records.
Code of Virginia § 22.1-287.1 defines what constitutes “directory” information that may be disclosed.
Code of Virginia § 22.1-288 defines conditions for furnishing information to other schools, colleges or private businesses.
Code of Virginia § 22.1-289 sets forth conditions and methods for the transfer and management of scholastic records.
Code of Virginia § 22.1-288.1 requires the notation in records of missing children and documentation of cooperation with law enforcement.
Code of Virginia § 22.1-288.2 defines conditions for the receipt, dissemination, and maintenance of records of certain law-enforcement information.
What information can schools share with the school resource officer?
FERPA limits access to student records. It does not prohibit a school official from disclosing information about a student if the information is obtained through the school official’s personal knowledge or observation, and not from the student’s education records. For example, if a teacher overhears a student making threatening remarks to other students, FERPA does not protect that information, and the teacher may disclose what he or she overheard to appropriate authorities.
For additional guidance, see the U.S. Department of Education's, Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Elementary and Secondary Schools (October 2007).
What acts of students are required to be reported to the school division superintendent?
Juvenile intake officers are required to notify a school superintendent of the filing of a petition against a juvenile in cases involving offenses set forth in Code of Virginia § 16.1-260.
Law enforcement officers are required to report the arrest of school employees and adult students for certain offenses Code of Virginia § 19.2-83.1.
The offenses set forth in both sections are:
- firearm offense;
- felonious assault and bodily wounding;
- criminal sexual assault;
- manufacture, sale, gift, distribution or possession of Schedule I or II controlled substances;
- manufacture, sale or distribution of marijuana;
- arson and related crimes;
- burglary and related offenses;
- prohibited street gang participation; and
- recruitment of juveniles for criminal street gang.
In accordance with Code of Virginia § 16.1-305.2, superintendents may not disclose information about the filing of a petition in the case of juveniles unless the division superintendent believes that disclosure to school personnel is necessary to ensure the physical safety of the juvenile, other students, or school personnel within the division. If so, he may at any time prior to receipt of the notice of disposition in accordance with § 16.1-305.1 disclose the fact of the filing of the petition and the nature of the offense to the principal of the school in which the juvenile who is the subject of the petition is enrolled.
The principal may further disseminate the information, after the juvenile has been taken into custody, whether or not the child has been released, only to those students and school personnel having direct contact with the juvenile and need of the information to ensure physical safety or the appropriate educational placement or other educational services.
In cases involving employees and adult students, the arrest is a matter of public record and should be handled in accordance with established personnel and student conduct policies. Code of Virginia § 22.1-288.2 provides additional guidance on the receipt, dissemination, and maintenance of records of certain law-enforcement information.
It is important to note that every notice of adjudication of delinquency or conviction for an offense listed in subsection G of § 16.1-260 received by the superintendent which is not a disciplinary record as defined in Board of Education regulations, must be maintained separately from all other records concerning the student. However, if the school administrators or the school board takes disciplinary action against a student based upon an incident which formed the basis for the adjudication of delinquency or conviction for an offense listed in subsection G of § 16.1-260 notice shall become a part of the student's disciplinary record.
When transferring records to another school, what information is to be included?
Under FERPA, school officials may disclose any and all education records, including disciplinary records and records that were created as a result of a student receiving special education services under Part B of the Individuals with Disabilities Education Act, to another school or postsecondary institution at which the student seeks or intends to enroll. While parental consent is not required for transferring education records, the school’s annual FERPA notification should indicate that such disclosures are made.
The Department of Criminal Justice Services recently published guidance on FERPA for school officials. See the agency's K-12 Resources.
Who are victims?
Code of Virginia § 19.2-11.01, Virginia's Victims Bill of Rights, recognizes victims as anyone who has suffered physical, emotional, financial harms, or been harmed by certain delinquent acts. The certain delinquent acts are: 1) assault and battery in violation of § 18.2-57 or § 18.2-57.2; 2) stalking in violation of § 18.2-60.3; 3) a violation of a protective order in violation of § 16.1-253.2 or 18.2-60.4; 4) sexual battery in violation of § 18.2-67.4; 5) attempted sexual battery in violation of § 18.2-67.5; or 6) maiming or driving while intoxicated in violation of § 18.2-51.4 or § 18.2-266; (6) a felony. In some instances, when the victim is a minor, the definition of victim includes his or her parents or guardians.
What are victims' rights?
Virginia law contains a Crime Victim and Witness Rights Act, usually referred to as the Victims Bill of Rights.
The Victims Bill of Rights is intended to ensure that crime victims:
- have opportunities to make the courts aware of the full impact of crime;
- are treated with dignity, respect, and sensitivity and have their privacy protected;
- are informed of their rights;
- are protected by law enforcement and the criminal justice system;
- potentially receive compensation, financial or otherwise;
- receive authorized services; and
- are heard at all critical stages of the criminal justice process.
How can I find out about victim or witness services in my community?
The law enforcement agencies investigating a crime will give victims written information about their rights, including the telephone numbers of the Commonwealth's Attorney and other numbers to call for additional information or to receive services. They may also call the statewide toll-free Virginia Crime Victim Assistance INFO-LINE at 1-888-887-3418.
Victim/witness programs are available to provide information and assistance. It is important that victims and witnesses contact the program to learn about the different types of assistance available to them. For example, a victim who wants to receive notice of court dates or notice when an offender is released from jail must make sure the Commonwealth's Attorney and other agencies have accurate contact information.
Which specific rights do victims have?
The specific rights victims have depend on case circumstances. Examples of some rights victims most often choose to exercise are: being notified of court dates, remaining in the courtroom during hearings, and giving victim impact statements at sentencing hearings.
Victims may ask to be notified of court dates, including preliminary hearings, plea agreement hearings, trials, and sentencing hearings.
Victims have the right to remain in the courtroom during all court proceedings the defendant attends, unless the judge has determined the presence of the victim would impair the conduct of a fair trial. Examples of these court proceedings are: bail or bond hearings, preliminary hearings, trials, and sentencing hearings. Additionally, if the victim is less than 18 years of age, the court may permit an adult chosen by the victim to remain in the courtroom as a support person for the victim.
After a defendant is found guilty in circuit court, the judge may consider a victim impact statement in determining the offender's sentence. The victim impact statement gives the victim the opportunity to tell the court, in writing, the impact of the crime(s). Victims may also be given the opportunity to testify, at the sentencing hearing, regarding the impact of the crime(s). If the victim or witness cannot speak English or is hearing impaired, a court-approved interpreter may be appointed to assist during the criminal justice process, at no cost to the victim. If a victim or witness is worried about having to wait in an area near the defendant or defense witnesses, a separate waiting area for victims and witnesses may be provided.
In some cases, victims may receive financial assistance. Under certain circumstances, the defendant may be ordered to repay the victim, at least partially, for losses. This is called restitution. If the victim was injured during the crime, the victim or his or her surviving family members may be eligible to receive money from a victims' compensation fund. Witnesses traveling from out of town may be eligible for reimbursement of expenses related to each day's attendance in court. Crime victims may also bring civil lawsuits against perpetrators or other responsible parties to hold them accountable for harm suffered.
These are not all the rights of victims and witnesses. In all cases, ask the victim/witness program staff or the Commonwealth's Attorney's office for information on specific procedures and services available in your locality.
What is a victim impact statement?
Virginia law allows victims to submit a written statement that describes the impact of crimes on the victim and his or her family. These statements may be considered by the court in deciding a sentence.
The victim impact statement may contain information about:
- physical injuries and medical treatment received;
- psychological effects of the crime and treatment received;
- life changes as a result of the crime, including personal welfare, lifestyle, or family relationships; and
- economic losses.
What resources are available for students who are victims of crime?
Code of Virginia § 22.1-3.3 allows the transfer of students who were the victims of any crime against the person committed by:
- Another student who attends classes in the same school;
- Any employee of the local school board;
- Any volunteer, contract worker or other person who regularly works in the school.
A student may transfer also if the crime was committed upon school property or on any school bus owned or operated by the school division. The transfer must be to another comparable school within the school division if available. Such transfer is to occur only when requested by a parent or the student, if emancipated, when the student would suffer physical or psychological harm.
What limits can schools place on students’ freedom of speech/expression?
Freedom of speech/expression issues most frequently arise in connection with student newspapers and dress codes.
Within the school environment, there is a tension between freedom of speech and the need for schools to limit student behavior in order to preserve an environment conducive to learning. Tinker v. Des Moines Independent School District was the landmark case that set the standards on which student free speech cases are judged. The U.S. Supreme Court held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, student conduct that “materially disrupts classwork or involves substantial disorder or invasion of the rights of other is. . . not immunized by the constitutional guarantee of freedom of speech.” Thus, the schools can prescribe speech/expression that constitutes a “material and substantial disruption.”
There are numerous issues to be considered in prescribing student speech/expression.
Is prayer allowed in public schools in Virginia?
Code of Virginia § 22.1-203.2. requires the Virginia Board of Education, in consultation with the Office of the Attorney General, to develop guidelines on constitutional rights and restrictions relating to prayer and other religious expression in the public schools.
According to Virginia Board of Education's Guidelines Concerning Religious Activity in Public Schools, “It is firmly settled in the law that the Establishment Clause forbids school-sponsored prayer or religious indoctrination, as well as any school initiative designed to endorse prayer generally or sponsor a particular religious viewpoint.” However, there are circumstances under which student prayer and other religious activities are permissible. There are numerous issues related to religious activities in schools.
For additional information see Virginia Board of Education Guidelines Concerning Religious Activity in the Public Schools (PDF)
Can schools require students to wear uniforms?
Code of Virginia § 22.1-79.2. requires the Virginia Board of Education to develop model guidelines for local school boards to utilize when establishing requirements for pupils to wear uniforms.
Local school boards may, but are not required to, establish requirements for school uniforms consistent with the Board guidelines.
For additional information, see Virginia Board of Education Model Guidelines for the Wearing of Uniforms in Public Schools (PDF).
Are schools required to take action if a student is thought to be possibly suicidal?
Code of Virginia § 22.1-272.1 requires licensed school personnel who have reason to believe a student is at imminent risk of suicide, to contact, as soon as practicable, at least one of the student’s parents. If the student has indicated parental abuse or neglect, contact with the parent is not to be made and social services is to be notified.
The law also requires the Board of Education to develop suicide prevention guidelines. For additional information, see Virginia Board of Education Suicide Prevention Guidelines (PDF)
The Virginia Department of Health offers the Virginia Suicide Prevention Resources Directory, which contains lists of available resources including hotlines, community mental health facilities, coalitions, and support groups as well as local and national resources.