WSR 16-10-061
PERMANENT RULES
CENTER FOR CHILDHOOD
DEAFNESS AND HEARING LOSS
[Filed May 2, 2016, 10:44 a.m., effective June 2, 2016]
Effective Date of Rule: Thirty-one days after filing.
Purpose: Rule changes are needed to update, clarify and streamline student conduct code standards and procedures, as well as to incorporate federal and state requirements regarding harassment, intimidation, bullying, discrimination and sexual harassment, as well as Title IX/OCR guidance. Prohibited student conduct will be more clearly defined and expanded to cover additional undesirable behaviors. The revised codes will enhance the center and school's compliance with Title IX guidance from the Office for Civil Rights and state laws prohibiting bullying of students based on sexual orientation and gender expression and identity as well as prohibiting harassment, intimidation and bullying of all students.
Citation of Existing Rules Affected by this Order: Repealing 4; and amending 9.
Adopted under notice filed as WSR 16-07-099 March 18, 2016.
Number of Sections Adopted in Order to Comply with Federal Statute: New 2, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 6, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: April 29, 2016.
Rick Hauan
Executive Director
NEW SECTION
WAC 148-120-001 Purpose and application.
The purpose of this chapter is to establish standards of conduct for students and prescribe the substantive and procedural due process rights of students at the Washington school for the deaf. The procedures and standards set forth in this chapter shall govern the imposition of discipline. "Discipline" means all forms of corrective action other than emergency removal from a class, subject, or activity, suspension, or expulsion and shall include the exclusion of a student from a class by a teacher or administrator for a period of time not exceeding the balance of the immediate class period: Provided that the student is in the custody of a school employee for the balance of such period. Discipline shall also mean the exclusion of a student from any other type of activity conducted by or on behalf of the school. Discipline is considered part of the school's educational process. In every case of misconduct, the nature and circumstances of the violation will be considered and appropriate discipline will be administered on a less restrictive alternative basis including, but not limited to, time out, detention, behavior contracts, restriction of privileges, reprimand, restitution, suspension or expulsion.
AMENDATORY SECTION (Amending WSR 94-13-058, filed 6/8/94, effective 7/9/94)
WAC 148-120-010 Student responsibilities and duties.
Washington school for the deaf is dedicated to offering its students an opportunity for the best education for deaf and hard-of-hearing ((impaired)) students in the state of Washington. Concomitant to the rights and privileges guaranteed by federal and state law to students are duties and responsibilities ((which guarantee the rights of all students, including)) of each student to pursue his/her course of studies, show respect for the rights of others, ((compliance)) comply with written rules adopted herein and set forth in student handbooks, and ((submission)) submit to reasonable ((disciplinary)) corrective action for violation(s) for such rules. This chapter is intended to assure that ((disciplinary)) corrective action is imposed for just cause and in a fair and reasonable manner.
NEW SECTION
WAC 148-120-012 Jurisdiction.
The student conduct code shall apply to student conduct that occurs on school premises, during transportation to and from school, to conduct that occurs at or in connection with school-sponsored programs or activities, or to off-campus conduct (or in nonschool electronic environments) that in the judgment of the school threatens safety or security or otherwise adversely impacts the school community.
AMENDATORY SECTION (Amending WSR 94-13-058, filed 6/8/94, effective 7/9/94)
WAC 148-120-015 Student rights.
(1) Each student ((is guaranteed)) shall possess the following substantive rights((, within the limitations of statutory law and school policy which are deemed necessary to achieve the school's educational goals:
(a) Students possess the right to a learning environment which is free from unlawful discrimination, inappropriate and disrespectful conduct, and sexual harassment.
(b) Students possess the rights, guaranteed under the Constitution, to freedom of expression, free inquiry, and peaceful assembly upon and within school facilities that are generally open and available to the public)):
(a) No student shall be unlawfully denied an equal educational opportunity or be unlawfully discriminated against because of sex, race, creed, religion, color, national origin, age, veteran or military status, sexual orientation, gender expression or identity, disability, or the use of a trained dog guide or service animal.
(b) Students possess the constitutional right to freedom of speech and press, and the constitutional right to peaceably assemble and to petition the government and its representatives for a redress of grievances.
(c) Students possess the rights, guaranteed under the Constitution, to the free exercise of religion and to have their school free from sectarian control or influence, subject to reasonable limitations upon the time, place, and manner of exercising such right.
(d) Students possess the constitutional right to be secure in their persons, quarters, papers, and effects against unreasonable searches and seizures, subject to limitations set forth in RCW
28A.600.210 through
28A.600.240 as now or hereafter amended.
(e) Students have the right to be free from unlawful interference in their pursuit of an education while enrolled at the Washington school for the deaf.
(f) Students shall not be deprived of the right to an equal educational opportunity in whole or in part by the Washington school for the deaf without due process including:
(i) Notice to the accused student of the nature of the charges and the proposed disciplinary action; and
(ii) The opportunity to request a hearing as set forth in this chapter.
(2) The foregoing enumeration of rights shall not be construed to deny or disparage other rights guaranteed in the Constitution and the laws of the state of Washington.
(3) The school shall publish and make available to all students and parents, on an annual basis, written rules which state with reasonable clarity the types of misconduct for which disciplinary action may be imposed.
NEW SECTION
WAC 148-120-020 References to OSPI's rules.
Where OSPI's rules are incorporated by reference: "School district" means "Washington school for the deaf"; "school district superintendent" means "superintendent of the Washington school for the deaf." These substitutions should be made as appropriate. They should not be made where the "school district" referred to is the student's district of residence.
NEW SECTION
WAC 148-120-110 Prohibited student conduct.
The school may impose disciplinary sanctions against a student who commits, or aids, abets, incites, encourages or assists another person to commit, an act(s) of misconduct set forth in this section. As applicable, the term "conduct" includes acts performed by electronic means.
(1) Personal offenses. The term "personal offense" is an offense against the safety or security of any person and includes physical assault, reckless endangerment, physical or verbal abuse, threats, intimidation, harassment, bullying, stalking, invasion of privacy, or other similar conduct that harms any person, or that is reasonably perceived as threatening the health or safety of any person, or that has the purpose or effect of unlawfully interfering with any person's rights. The term includes personal offenses committed by electronic means.
(a) Bullying is physical or verbal abuse, repeated over time, and involving a power imbalance between the aggressor and victim.
(b) Stalking is intentional and repeated following of another person, which places that person in reasonable fear that the perpetrator intends to injure, intimidate, or harass that person. Stalking also includes instances where the perpetrator knows or reasonably should know that the person is frightened, intimidated, or harassed, even if the perpetrator lacks such an intent.
(2) Property violations. The term "property violation" includes the theft, misappropriation, unauthorized use or possession, vandalism, or other nonaccidental damaging or destruction of school property or the property of another person; including possession of such property or money after it has been stolen. Property for purposes of this subsection includes computer passwords, access codes, identification cards, other confidential personal information, and intellectual property.
(3) Sexual misconduct. The term "sexual misconduct" includes, but is not limited to, sexual harassment and sexual violence.
(a) Sexual harassment. The term "sexual harassment" means unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature that is sufficiently serious as to deny or limit, and that does deny or limit, based on sex, the ability of a student to participate in or benefit from the school's educational programs/activities or that creates an intimidating, hostile, or offensive educational environment.
Sexual harassment may include conduct or communication that involves adult to student, student to adult, student to student, adult to adult, male to female, female to male, male to male, and female to female.
(b) Sexual intimidation. The term "sexual intimidation" incorporates the definition of "sexual harassment" and means threatening or emotionally distressing conduct based on sex, including stalking (or cyberstalking), voyeurism, indecent exposure, or the nonconsensual recording of sexual activity or distribution of such recording.
(c) Sexual violence. The term "sexual violence" incorporates the definition of "sexual harassment" and means a physical sexual act perpetrated without clear, knowing, and voluntary consent, such as committing a sexual act against a person's will, exceeding the scope of consent, or where the person is incapable of giving consent. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, sexual coercion, sexual exploitation, or gender- or sex-based stalking. A person may be incapable of giving consent because she or he is underage, unable to understand what is happening, or is disoriented, helpless, asleep or unconscious for any reason, including due to drug or alcohol consumption, is disabled, or cannot consent because of threat or intimidation.
(4) Disruptive or obstructive conduct. The term "disruptive" or "obstructive conduct" means conduct, not protected by law, that interferes with, impedes, or otherwise unreasonably hinders the normal teaching, learning, administrative, or other functions, procedures, services, programs, or activities of the school. The term includes disorderly conduct, breach of the peace, lewd or obscene conduct, obstruction of pedestrian or vehicular traffic, or interfering with the orderly conduct of school investigations or disciplinary proceedings, including interfering with or retaliating against any complainant, witness, or other participant.
(5) Failure to comply. Refusal or failure to comply with instructions or directions of school officials, refusing to comply with any term or condition of a disciplinary sanction.
(6) Safety violations. Any nonaccidental conduct that interferes with or otherwise compromises any school policy, equipment, or procedure relating to the safety and security of the center and school community, including tampering with or disabling safety equipment and triggering false alarms or other emergency response systems.
(7) False or deceptive conduct. The term "false" or "deceptive conduct" means dishonest conduct (other than academic dishonesty) that includes forgery, altering or falsifying of school records, furnishing false or misleading information, or falsely accusing any person of misconduct.
(8) Academic dishonesty. All forms of cheating, plagiarism and fabrication.
(a) Cheating. Cheating includes any attempt to give or obtain unauthorized assistance relating to the completion of an academic assignment. This includes assisting another to commit an act of academic dishonesty or allowing someone to do these things for one's benefit.
(b) Plagiarism. Plagiarism includes taking and using as one's own, without proper attribution, the ideas, writings or work of another person in completing an academic assignment. Prohibited conduct may also include the unauthorized submission for credit of academic work that has been submitted for credit in another course.
(c) Fabrication. Fabrication includes falsifying data, information, or citations in completing an academic assignment and also includes providing false or deceptive information to a teacher concerning the completion of an assignment.
(9) Unauthorized access. The term "unauthorized access" means gaining entry without permission to any restricted area or property of the school or the property of another person, including any computer system, e-mail account, or electronic or paper files. Unauthorized access includes computer hacking and the unauthorized possession or sharing of any restricted means of gaining access, including keys, keycards, passwords, or access codes.
(10) Alcohol, drug and tobacco violations.
(a) Alcohol. Use, possession, delivery, or being visibly under the influence of any alcoholic beverages.
(b) Marijuana. Use, possession, delivery, or being visibly under the influence of marijuana or the psychoactive compounds found in marijuana and intended for human consumption, regardless of form.
(c)
Drug. Use, possession, distribution, delivery, or being under the influence of any legend drug, including anabolic steroids, androgens, or human growth hormones as defined in chapter
69.41 RCW, or any other controlled substance under chapter
69.50 RCW, except as prescribed for a student's use by a licensed practitioner. The abuse, misuse, or unlawful sale or distribution of prescription or over-the-counter medications may also constitute a drug violation.
(d) Tobacco. Smoking or use of tobacco, tobacco products, electronic smoking devices, or other smoking devices.
(11) Retaliation. Harming, threatening, intimidating, coercing or taking adverse action of any kind against a person because such person reported an alleged violation of this code or other school policies, provided information about an alleged violation, or participated as a witness or in any other capacity in an investigation or disciplinary proceeding.
(12) Weapons violations. A "weapons violation" includes possessing, carrying, displaying, exhibiting, or storing any firearm or dangerous weapon. Dangerous weapons include, but are not limited to, firearms, dangerous chemicals, explosives, slungshots, sand clubs, metal knuckles, daggers, dirks, spring blade knives, nunchaku sticks, throwing stars, air guns, stun guns, and devices used or intended to be used as a weapon to injure a person by an electric shock, charge, or impulse.
(13) Harassment, intimidation, or bullying. Harassment, intimidation, or bullying means any intentional electronic, written, verbal or physical act including, but not limited to, one shown to be motivated by race, color, religion, ancestry, national origin, gender, sexual orientation including gender identity or expression, mental or physical disability, socio-economic status, physical appearance, or other distinguishing characteristic, when the act:
(a) Physically harms a student or damages the student's property;
(b) Has the effect of substantially interfering with a student's education;
(c) Is so severe, persistent, or pervasive that it creates an intimidating or threatening educational environment; or
(d) Has the effect of substantially disrupting the orderly operation of the school.
Nothing in this section requires the affected student to actually possess a characteristic that is a basis for the harassment, intimidation, or bullying.
"Intentional act" refers to the individual's choice to engage in the act rather than the ultimate impact of the action(s).
Harassment, intimidation, and bullying are often carried out through acts of misconduct, which are addressed and prohibited under other rules in this chapter.
(14)
Gang activity. Claiming membership in, association with, affiliation with, or participation in a gang, in gang-related activities or similar destructive or illegal group behavior at school, during school-related functions, or on any school property. "Gang" has the meaning given the term under RCW
28A.600.455.
(15) Theft or misuse of electronic resources. Theft or misuse of computer time or other electronic information resources of the school. Such misuse includes, but is not limited to:
(a) Unauthorized use of such resources or opening of a file, message, or other item;
(b) Unauthorized duplication, transfer, or distribution of a computer program, file, message, or other item;
(c) Unauthorized use or distribution of someone else's password or other identification;
(d) Use of such time or resources to interfere with someone else's work;
(e) Use of such time or resources to send, display, or print an obscene or abusive message, text, or image;
(f) Use of such time or resources to harass, abuse, bully or engage in other conduct which harms, threatens, or is reasonably perceived as threatening the health or safety of another person;
(g) Use of such time or resources to interfere with normal operation of the school's computing system or other electronic information resources;
(h) Use of such time or resources in violation of applicable copyright or other law;
(i) Failure to comply with the student computing resources policy.
(16) Cyber misconduct. Cyberstalking, cyberbullying, or online harassment. Use of electronic communications including, but not limited to, electronic mail, instant messaging, electronic bulletin boards, and social media sites to harass, abuse, bully, or engage in other conduct which harms, threatens, or is reasonably perceived as threatening the health or safety of another person. Prohibited activities include, but are not limited to, unauthorized monitoring of another's e-mail communications directly or through spyware, sending threatening e-mails, disrupting electronic communications with spam or by sending a computer virus, sending false messages to third parties using another's e-mail identity, nonconsensual recording of sexual activity, and nonconsensual distribution of a recording of sexual activity.
(17) Violation of other laws or policies. Violation of any federal, state, local law, rule, or regulation or other school rules or policies which are published annually in the student/parent handbook.
AMENDATORY SECTION (Amending WSR 11-05-033, filed 2/8/11, effective 3/11/11)
WAC 148-120-205 Limitations.
(1) No form of disciplinary action shall be enforced in such a manner as to prevent a student from accomplishing specific academic grade, subject, or graduation requirement: Provided, That a student's academic grade or credit in a particular subject or course may be adversely affected as a result of excessive tardiness or absences.
(2) Corporal punishment as defined by the superintendent of public instruction in WAC 392-400-235(((4))) (2) as now or hereafter amended, is prohibited.
AMENDATORY SECTION (Amending WSR 94-13-058, filed 6/8/94, effective 7/9/94)
WAC 148-120-210 Emergency removal from class or activity.
(1) Notwithstanding any other provision of this chapter, a student may be removed immediately from a class, subject, or activity by a certificated teacher or an administrator and sent to the principal or his/her designee: Provided, That the teacher or administrator has good and sufficient reason to believe that the student's presence poses an immediate and continuing danger to the student, other students, or school personnel, or an immediate and continuing threat of substantial disruption of the class, subject, activity, or educational process of the school. The removal from classes, subjects, or activities shall continue only until:
(a) The danger or threat ceases; or
(b) The principal or his/her designee acts to impose disciplinary action pursuant to this chapter.
(2) The principal or his/her designee shall meet with the student as soon as reasonably possible following the student's removal and initiate or take appropriate ((disciplinary)) corrective action. In no case shall the student's opportunity for such meeting be delayed beyond the commencement of the next school day. Prior to or at the time any such student is returned to the class(es), subject(s), or activity(ies), the principal or his/her designee shall notify the teacher or administrator who removed the student therefrom of the action which has been taken.
AMENDATORY SECTION (Amending WSR 11-05-033, filed 2/8/11, effective 3/11/11)
WAC 148-120-250 Discipline procedures.
Disciplinary procedures for students at ((WSD)) the school who are eligible for special education shall follow the requirements in WAC 392-172A-05140 through 392-172A-05175, which are adopted by reference. ((Students at WSD are)) In addition to the rules and procedures in this chapter, students may also be subject to rules and procedures governing discipline for all students in public schools in chapter 392-400 WAC. ((WSD)) The school shall determine on a case-by-case basis whether and to what extent the rules and procedures in chapter 392-400 WAC may apply.
AMENDATORY SECTION (Amending WSR 01-16-100, filed 7/27/01, effective 8/27/01)
WAC 148-120-313 Referral to and action by law enforcement and judicial authorities.
(1) Nothing in Part B of the Individuals with Disabilities Education Act, or this chapter prohibits the Washington school for the deaf from reporting a crime committed by a student to appropriate authorities, or prevents state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a student.
(2) When reporting a crime committed by a student, the school shall ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the appropriate authorities to whom it reports the crime((.
(3) When reporting a crime under this section, the school may transmit copies of the student's special education and disciplinary records only)), to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.
AMENDATORY SECTION (Amending WSR 04-02-002, filed 12/24/03, effective 1/24/04)
WAC 148-120-400 Emergency expulsion-Limitations.
((Notwithstanding any other provision of this chapter, a student may be expelled immediately by the superintendent or a designee of the superintendent in emergency situations: Provided, That the superintendent or designee has good and sufficient reason to believe that the student's presence poses an immediate and continuing danger to the student, other students, or school personnel or an immediate and continuing threat of substantial disruption of the educational process. An emergency expulsion shall continue until rescinded by the superintendent or his or her designee, or until modified or reversed pursuant to the hearing provisions set forth in WAC 148-120-410 or the appeal provisions set forth in WAC 148-120-415.)) WAC 392-400-295 is incorporated by reference.
AMENDATORY SECTION (Amending WSR 04-02-002, filed 12/24/03, effective 1/24/04)
WAC 148-120-405 Emergency expulsion-Notice of hearing-Waiver of hearing right.
(((1) The student and his or her parent(s) or guardian(s) shall be notified of the emergency expulsion of the student and of their opportunity for a hearing either (a) by hand delivering written notice to the student's parent(s) or guardian(s) within twenty-four hours of the expulsion and documenting delivery by obtaining his or her signature acknowledging receipt or the written certification of the person making the delivery, or (b) by certified letter(s) deposited in the United States mail, within twenty-four hours of the expulsion: Provided, That if the emergency expulsion is based upon a failure to comply with the state immunization law (see chapter 180-38 WAC), the notice must be received by the student's parent(s) or guardian(s) prior to the emergency expulsion of the student regardless of the method of delivery. In addition, if the notice is by certified letter, reasonable attempts shall be made to notify the student and his or her parent(s) or guardian(s) by telephone or in person as soon as reasonably possible. Such written and oral notice shall:
(a) Be provided in the predominant language of a student and/or a parent(s) or guardian(s) who predominantly speak a language other than English, to the extent feasible,
(b) Specify the alleged reason(s) for the emergency expulsion,
(c) Set forth the corrective action or punishment taken and proposed,
(d) Set forth the right of the student and/or his or her parent(s) or guardian(s) to a hearing for the purpose of contesting the allegation(s) as soon as reasonably possible, and
(e) Set forth the facts that:
(i) A written (or "oral" if provided for by school policy) request for a hearing must be received by the school employee designated, or by his or her office, on or before the expiration of the tenth school business day after receipt of the notice of opportunity for a hearing, and
(ii) If such a request is not received within the prescribed period of time, then the right to a hearing may be deemed to have been waived and the emergency expulsion may be continued as deemed necessary by the school without any further opportunity for the student or his or her parent(s) or guardian(s) to contest the matter. A schedule of "school business days" potentially applicable to the exercise of such hearing right should be included with the notice.
(2) The student and/or his or her parent(s) or guardian(s) shall reply to the notice of opportunity for a hearing and request a hearing within ten school business days after the date of receipt of the notice. A request for a hearing shall be provided to the school employee specified in the notice of opportunity for a hearing, or to his or her office. A request for a hearing shall be accepted if in writing and may be accepted orally if expressly provided for and allowed by rule of the school.
(3) If a request for a hearing is not received within the required ten school business day period, the school may deem the student and his or her parent(s) or guardian(s) to have waived the right to a hearing and the emergency expulsion may be continued as deemed necessary by the school district.)) WAC 392-400-300 is incorporated by reference.
AMENDATORY SECTION (Amending WSR 04-02-002, filed 12/24/03, effective 1/24/04)
WAC 148-120-410 Emergency expulsion-Prehearing and hearing process.
(((1) If a request for a hearing within the required ten school business days is received pursuant to WAC 148-120-405, the school shall immediately schedule and give notice of a hearing to commence as soon as reasonably possible and in no case later than the third school business day after receipt of the request for hearing.
(2) The student and his or her parent(s) or guardian(s) shall have the right to:
(a) Inspect in advance of the hearing any documentary and other physical evidence which the school district intends to introduce at the hearing,
(b) Be represented by legal counsel,
(c) Question and confront witnesses, unless a school witness does not appear and the nonappearance of the witness is excused by the person(s) hearing the case based upon evidence of good reason for doing so submitted by the school. The evidence submitted by the school must at a minimum establish either:
(i) That the school made a reasonable effort to produce the witness and is unable to do so; or,
(ii) That it is not advisable for the student to appear due to an expectation and fear on the part of the responsible school official(s) or the student of retaliation against the student if he or she appears as a witness,
(d) Present his or her explanation of the alleged misconduct, and
(e) Make such relevant showings by way of witnesses and the introduction of documentary and other physical evidence as he or she desires.
(3) The designee(s) of the school assigned to present the school's case and/or the assistant attorney general shall have the right to inspect in advance of the hearing any documentary and other physical evidence that the student and his or her parent(s) or guardian(s) intend to introduce at the hearing.
(4) The person(s) hearing the case shall not be a witness and the guilt or innocence of the student shall be determined solely on the basis of the evidence presented at the hearing.
(5) Either a tape-recorded or verbatim record of the hearing shall be made.
(6) Within one school business day after the date upon which the hearing concludes, a decision as to whether or not the expulsion shall be continued shall be rendered, and the student's legal counsel or, if none, the student and his or her parent(s) or guardian(s) shall be notified thereof by depositing a certified letter in the United States mail. The decision shall set forth the findings of fact, the conclusions (including a conclusion as to whether or not the emergency situation giving rise to the emergency expulsion continues), and whether or not the emergency expulsion shall be continued or a lesser form of corrective action or punishment is to be imposed.
(7) An emergency expulsion may be continued following the hearing on the basis that the emergency situation continues and/or as corrective action or punishment for the action(s) giving rise to the emergency expulsion in the first instance.)) WAC 392-400-305 is incorporated by reference.
REPEALER
The following sections of the Washington Administrative Code are repealed:
| |
WAC 148-120-100 |
Conduct violations. |
WAC 148-120-120 |
Misdemeanor and/or felony. |
WAC 148-120-200 |
Policy. |
WAC 148-120-314 |
Aversive interventions. |
