COCODE

22-33-105. Suspension, expulsion, and denial of admission.

Statute text

(1) No child who has attained the age of six years and is under the age of twenty-one shall be suspended or expelled from or be denied admission to the public schools, except as provided by this article.

(2) In addition to the powers provided in section 22-32-110, the board of education of each district may:

(a) Delegate to any school principal within the school district or to a person designated in writing by the principal the power to suspend a pupil in his school for not more than five school days on the grounds stated in section 22-33-106 (1)(a), (1)(b), (1)(c), or (1)(e) or not more than ten school days on the grounds stated in section 22-33-106 (1)(d);

(b) Suspend, on the grounds stated in section 22-33-106, a pupil from school for not more than another ten school days, or may delegate such power to its executive officer; except that the latter may extend a suspension to an additional ten school days if necessary in order to present the matter to the next meeting of the board of education, but the total period of suspension pursuant to this paragraph (b) and paragraph (a) of this subsection (2) shall not exceed twenty-five school days; and

(c) Deny admission to, or expel for any period not extending beyond one year, any student whom the board of education, in accordance with the limitations imposed by this article 33, determines does not qualify for admission to, or continued attendance at, the public schools of the district. A board of education may delegate such powers to its executive officer or to a designee who serves as a hearing officer.

(2.3) (a) If an expulsion hearing is requested by a school district, a student, or the student's parent, guardian, or legal custodian, the school district has the burden of proving by a preponderance of the evidence that the student violated section 22-33-106 and the school district's policy.

(b) If an expulsion hearing is requested pursuant to subsection (2.3)(a) of this section by a school district, a student, or the student's parent, guardian, or legal custodian, the school district seeking to expel or deny admission to the student shall provide all records that the school district intends to use as supporting evidence for expulsion or denial of admission to the student or the student's parent, guardian, or legal custodian at least two business days in which school is in session prior to the expulsion hearing. Upon discovery of a record not previously provided, the school district shall immediately provide the record to the student or the student's parent, guardian, or legal custodian.

(c) If an executive officer acting as a hearing officer conducts an expulsion hearing pursuant to subsection (2.3)(a) of this section, the executive officer shall create a report with findings of fact and recommendations, including specific findings regarding the factors set forth in section 22-33-106 (1.2). If a designee acting as a hearing officer conducts a hearing, the designee shall forward findings of fact and recommendations to the executive officer at the conclusion of the expulsion hearing, including specific findings regarding the factors set forth in section 22-33-106 (1.2). An executive officer shall render a written opinion that imposes or refrains from imposing disciplinary action within five business days after an expulsion hearing is conducted by the executive officer or by a designee acting as a hearing officer. The executive officer shall provide the written opinion to the student or the student's parent, guardian, or legal custodian. The executive officer shall report on each case acted upon at the next meeting of the board of education, briefly describing the circumstances and the reasons for the executive officer's opinion.

(d) A student who is denied admission or expelled as a result of the hearing described in subsection (2.3)(a) of this section has ten business days after the decision of the executive officer is rendered to appeal the decision to the board of education, after which time the decision to grant or deny the appeal is at the discretion of the board of education. The appeal must consist of a review of the facts presented and determined at the hearing conducted by the executive officer or by a designee acting as a hearing officer, arguments relating to the decision, and questions of clarification from the board of education. If the board of education upholds the determination of the executive officer to expel or deny admission to a student, the student is entitled to a review of the decision of the board of education in accordance with section 22-33-108.

(2.4) (a) A hearing officer must not have a conflict of interest with regard to a student under consideration for expulsion or denial of admission, or toward any alleged victim. A school district must ensure that any person acting as a hearing officer receives training on how to serve impartially, including avoiding prejudgment of the facts at issue and conflicts of interest. The training must be included as part of the training program offered by the department of education pursuant to subsection (2.4)(c) of this section.

(b) An executive officer involved in investigating or reporting an incident that leads to a hearing that could result in suspension, expulsion, or denial of admission of a student shall not act as a hearing officer. Instead, the executive officer shall delegate such powers to a designee who is not involved in investigating or reporting the incident.

(c) (I) On or before June 30, 2024, the department of education shall create and maintain the online training program for hearing officers who conduct expulsion hearings. The department of education shall collaborate with stakeholders on the creation of the online training program, which may occur virtually by video or audio.

(II) (A) Beginning January 1, 2025, school districts and the state charter school institute shall require hearing officers to complete an initial five-hour training program within thirty days after the date the hearing officer starts work as a hearing officer.

(B) In addition to the initial five-hour training completed pursuant to subsection (2.4)(c)(II)(A) of this section, hearing officers shall complete an annual training program to stay informed on school discipline updates.

(III) Training must include information on the following:

(A) Child and adolescent brain development;

(B) Restorative justice;

(D) Trauma-informed practices;

(E) Conflict and bias in discipline, suspension, and expulsion; and

(F) Requirements and implementation of the applicable portions of the federal "Individuals with Disabilities Education Act", 20 U.S.C. sec. 1400 et seq., as amended; section 504 of the federal "Rehabilitation Act of 1973", 29 U.S.C. sec. 794, as amended; the federal "Family Educational Rights and Privacy Act of 1974", 20 U.S.C. sec. 1232g, as amended; the "Exceptional Children's Educational Act", article 20 of this title 22; and the "School Attendance Law of 1963", established pursuant to this article 33.

(IV) Beginning January 1, 2025, it is an abuse of discretion if a hearing officer presides over an expulsion hearing and has not completed the required training pursuant to this subsection (2.4).

(V) A school district, a district charter school authorized to suspend or expel students, or the state charter school institute may develop and provide a training program to hearing officers and school administrators. The training program must meet or exceed the requirements set forth in subsections (2.4)(c)(II) and (2.4)(c)(III) of this section.

(2.5) Each board of education shall annually report to the state board the number of students expelled from schools within the district pursuant to this section and pursuant to section 25-4-907, C.R.S. Any pupil who is expelled pursuant to this section shall not be included in calculating the dropout rate for the school from which such student is expelled or in calculating the dropout rate for the school district in which such pupil was enrolled prior to being expelled.

(3) (a) If a pupil is suspended pursuant to subsection (2) of this section, the suspending authority shall immediately notify the parent, guardian, or legal custodian of the pupil that the pupil has been suspended and of the grounds for the suspension, the period of the suspension, and the time and place for the parent, guardian, or legal custodian to meet with the suspending authority to review the suspension.

(b) Except as provided in paragraph (c) of this subsection (3), a suspended pupil shall:

(I) Be required to leave the school building and the school grounds immediately, following a determination by the parent, guardian, or legal custodian and the school of the best way to transfer custody of the pupil to the parent, guardian, or legal custodian; and

(II) Not be readmitted to a public school until a meeting between the parent, guardian, or legal custodian and the suspending authority has taken place or until, in the discretion of the suspending authority, the parent, guardian, or legal custodian of the suspended pupil has substantially agreed to review the suspension with such suspending authority; except that, if the suspending authority cannot contact the parent, guardian, or legal custodian of such pupil or if such parent, guardian, or legal custodian repeatedly fails to appear for scheduled meetings, the suspending authority may readmit the pupil. The meeting shall address whether there is a need to develop a remedial discipline plan for the pupil in an effort to prevent further disciplinary action.

(c) A pupil suspended for a period of ten days or less shall receive an informal hearing by the school principal or the principal's designee prior to the pupil's removal from school, unless an emergency requires immediate removal from school, in which case an informal hearing shall follow as soon after the pupil's removal as practicable. Any pupil suspended for more than ten days shall be given the opportunity to request a review of the suspension before an appropriate official of the school district.

(d) The suspending authority shall:

(I) Make every reasonable effort to meet with the parent, guardian, or legal custodian of the pupil during the period of suspension;

(II) Not extend a period of suspension because of the failure of the suspending authority to meet with the parent, guardian, or legal custodian during the period of suspension;

(III) Provide an opportunity for a pupil to make up school work during the period of suspension for full or partial academic credit to the extent possible. The intent of this provision is to provide an opportunity for the pupil to reintegrate into the educational program of the district and to help prevent the pupil from dropping out of school because of an inability to reintegrate into the educational program following the period of suspension. The school district should take this intent into consideration when determining the amount of credit a student will receive for this makeup work.

(4) The board of education of each district shall establish, as an alternative to suspension, a policy that allows the pupil to remain in school by encouraging the parent, guardian, or legal custodian, with the consent of the pupil's teacher or teachers, to attend class with the pupil for a period of time specified by the suspending authority. If the parent, guardian, or legal custodian does not agree to attend class with the pupil or fails to attend class with the pupil, the pupil shall be suspended in accordance with the conduct and discipline code of the district.

(4.5) The board of education of each district shall adopt a policy that states a student must not be expelled or denied admission unless the school district considers whether alternative remedies are appropriate and whether excluding the student from school is necessary to preserve the learning environment.

(5) (a) Whenever a petition filed in juvenile court alleges that a child at least twelve years of age but under eighteen years of age has committed an offense that would constitute unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S., or a crime of violence, as defined in section 18-1.3-406, C.R.S., if committed by an adult or whenever charges filed in district court allege that a child has committed such an offense, basic identification information concerning such child and the details of the alleged delinquent act or offense shall be provided immediately to the school district in which the child is enrolled in accordance with the provisions of section 19-1-304 (5), C.R.S. Upon receipt of such information, the board of education of the school district or its designee shall determine whether the student has exhibited behavior that is detrimental to the safety, welfare, and morals of the other students or of school personnel in the school and whether educating the student in the school may disrupt the learning environment in the school, provide a negative example for other students, or create a dangerous and unsafe environment for students, teachers, and other school personnel. The determination may be made in executive session to the extent allowed by section 24-6-402 (4)(h), C.R.S. If the board of education or its designee, in accordance with the provisions of this subsection (5), makes a determination that the student should not be educated in the school, it may proceed with suspension or expulsion in accordance with subsection (2) of this section and section 22-33-106. Alternatively, the board of education or its designee may determine that it will wait until the conclusion of the juvenile proceedings to consider the expulsion matter, in which case it shall be the responsibility of the district to provide the student with an appropriate alternate education program, including but not limited to an online program or online school authorized pursuant to article 30.7 of this title, or a home-based education program during the period pending the resolution of the juvenile proceedings. Information made available to the school district and not otherwise available to the public pursuant to the provisions of section 19-1-304, C.R.S., shall remain confidential.

(b) No student who is being educated in an alternate education program or a home-based education program pursuant to paragraph (a) of this subsection (5) shall be allowed to return to the education program in the public school until there has been a disposition of the charge. If the student pleads guilty, is found guilty, or is adjudicated a delinquent juvenile, the school district may proceed in accordance with section 22-33-106 to expel the student. The time that a student spends in an alternate education program pursuant to paragraph (a) of this subsection (5) shall not be considered a period of expulsion.

(c) No court which has jurisdiction over the charges against a student who is subject to the provisions of this subsection (5) shall issue an order requiring the student to be educated in the education program in the school in contradiction of the provisions of this subsection (5).

(6) When a pupil is expelled by a school district, the pupil's parent, guardian, or legal custodian is responsible for seeing that the pupil complies with the provisions of this article during the period of expulsion.

(7) (a) Notwithstanding any other provision of this part 1 to the contrary:

(I) An institute charter school authorized pursuant to part 5 of article 30.5 of this title 22 may carry out the functions of a suspending authority pursuant to this section; and

(II) The state charter school institute created in part 5 of article 30.5 of this title 22 may carry out the functions of a school district and its board of education with respect to the suspension, expulsion, or denial of admission of a student to an institute charter school.

(b) If a district charter school, authorized pursuant to part 1 of article 30.5 of this title 22, is authorized to suspend or expel students as stipulated in the charter school contract pursuant to section 22-30.5-106 (1)(p), the district charter school shall comply with this section.

History

Source: L. 63: p. 863, 6. C.R.S. 1963: 123-20-6. L. 75: (2)(a) amended, p. 702, 1, effective July 1. L. 79: (3) added, p. 786, 1, effective July 1. L. 93: (2.5) added, p. 379, 2, effective April 12; (2)(a) and (2)(c) amended, p. 458, 3, effective April 19; (3) amended and (4) to (6) added, p. 451, 3, effective July 1. L. 94: (2)(c) amended, p. 446, 1, effective July 1. L. 96: (2)(b), (3), (5)(a), and (5)(b) amended, p. 1804, 2, effective July 1; (5)(a) amended, p. 1174, 12, effective January 1, 1997. L 97: (2.5) amended, p. 410, 4, effective July 1. L. 98: (5)(a) amended, p. 657, 3, effective August 5. L. 2000: (5)(a) amended, p. 321, 11, effective April 7. L. 2002: (5)(a) amended, p. 1188, 29, effective July 1; (5)(a) amended, p. 1528, 233, effective October 1. L. 2004: (7) added, p. 1636, 40, effective July 1. L. 2007: (5)(a) amended, p. 1089, 16, effective July 1. L. 2012: (2)(c), (3)(d)(III), and (6) amended, (HB 12-1345), ch. 188, p. 740, 25, effective May 19; (5)(a) amended, (HB 12-1240), ch. 258, p. 1330, 45, effective June 4. L. 2014: (2)(a) amended, (HB 14-1363), ch. 302, p. 1266, 16, effective May 31. L. 2023: (2)(c) and (7) amended and (2.3), (2.4), and (4.5) added, (HB 23-1291), ch. 296, p. 1773, 2, effective June 1.

Annotations

Editor's note: Amendments to subsection (5)(a) in House Bill 96-1203 and House Bill 96-1017 were harmonized, effective January 1, 1997. Amendments to subsection (5)(a) by House Bill 02-1046 and Senate Bill 02-010 were harmonized.

Annotations

Cross references: For the legislative declaration in HB 23-1291, see section 1 of chapter 296, Session Laws of Colorado 2023.

Annotations

ANNOTATION

Annotations

Law reviews. For comment, "The Rights of Handicapped Students in Disciplinary Proceedings by Public School Authorities", see 53 U. Colo. L. Rev. 367 (1982). For comment, "Setting Boundaries for Student Due Process: Rustad v. United States Air Force and the Right to Counsel in Disciplinary Dismissal Proceedings," see 62 Den. U. L. Rev. 109 (1985). For article, "Due Process Protections for Public School Students Facing Discipline", see 44 Colo. Law. 67 (Oct. 2015). For article, "Colorado School Discipline Law: Gaps and Goals", see 97 Denv. L. Rev. 347 (2020).

Statutory procedures for temporary suspension held constitutional. The statutory procedures for temporary suspension are not a denial of procedural due process and their application did not deprive the plaintiffs of the procedural due process required by the federal constitution. Hernandez v. Sch. Dist. No. 1, 315 F. Supp. 289 (D. Colo. 1970).

A school board may delegate to a school principal the power to suspend a pupil for not more than five school days for wilful disobedience or open and persistent defiance of proper authority or behavior which is inimical to the welfare, safety, or morals of other pupils. Hernandez v. Sch. Dist. No. 1, 315 F. Supp. 289 (D. Colo. 1970).

Power may be delegated to the superintendent of schools. The school board is authorized to delegate to the superintendent of schools the power to extend the suspension for not to exceed an additional 20 school days. Hernandez v. Sch. Dist. No. 1, 315 F. Supp. 289 (D. Colo. 1970).

Expulsion from or denial of admission to school attendance, beyond the temporary suspension period, shall not be made without a hearing if one is requested by the parent of the child, with the right of the parent to judicial review of the decision of the board by the appropriate juvenile court. Hernandez v. Sch. Dist. No. 1, 315 F. Supp. 289 (D. Colo. 1970).

A student can be deprived of an opportunity to attend a public school without an opportunity for a fair hearing. The requirements of procedural due process cannot be construed to give, prior to suspension, the right to be heard, notice of the reason for the proposed governmental action, and an opportunity to confront adverse witnesses and present one's own arguments and evidence to an impartial decision maker. Hernandez v. Sch. Dist. No. 1, 315 F. Supp. 289 (D. Colo. 1970).

Suspension period held reasonable. There is no evidence that the suspension period provided in this section is an unreasonable time to allow the principal and superintendent to attempt to resolve problems of discipline and behavior which is inimical to the welfare, safety, or morals of other pupils, before resorting to expulsions. Hernandez v. Sch. Dist. No. 1, 315 F. Supp. 289 (D. Colo. 1970).

School district is not allowed to isolate potential witnesses from the student, even though this section does not explicitly provide for compulsion of witnesses. Nichols ex rel. Nichols v. DeStefano, 70 P.3d 505 (Colo. App. 2002), aff'd by an equally divided court, 84 P.3d 496 (Colo. 2004).