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22-33-106. Grounds for suspension, expulsion, and denial of admission.

Statute text

(1) The following may be grounds for suspension or expulsion of a child from a public school during a school year:

(a) Continued willful disobedience or open and persistent defiance of proper authority;

(b) Willful destruction or defacing of school property;

(c) Behavior on or off school property that is detrimental to the welfare or safety of other pupils or of school personnel, including behavior that creates a threat of physical harm to the child or to other children; except that, if the child who creates the threat is a child with a disability pursuant to section 22-20-103 (5), the child may not be expelled if the actions creating the threat are a manifestation of the child's disability. However, the child shall be removed from the classroom to an appropriate alternative setting within the district in which the child is enrolled for a length of time that is consistent with federal law, during which time the school in which the student is enrolled shall give priority to and arrange within ten days for a reexamination of the child's individualized education program to amend his or her program as necessary to ensure that the needs of the child are addressed in a more appropriate manner or setting that is less disruptive to other students and is in accordance with the provisions of article 20 of this title. Nothing in this paragraph (c) shall be construed to limit a school district's authority to suspend a child with a disability for a length of time that is consistent with federal law.

(c.5) (I) Declaration as a habitually disruptive student.

(II) For purposes of this paragraph (c.5), "habitually disruptive student" means a child who has caused a material and substantial disruption on school grounds, in a school vehicle, or at a school activity or sanctioned event three or more times during the course of a school year. Any student who is enrolled in a public school may be subject to being declared a habitually disruptive student.

(III) The student and the parent, legal guardian, or legal custodian shall have been notified in writing of each disruption counted toward declaring the student as habitually disruptive pursuant to this paragraph (c.5), and the student and parent, legal guardian, or legal custodian shall have been notified in writing and by telephone or other means at the home or the place of employment of the parent or legal guardian of the definition of "habitually disruptive student".

(IV) (Deleted by amendment, L. 2000, p. 1971, 12, effective June 2, 2000.)

(d) Committing one of the following offenses on school grounds, in a school vehicle, or at a school activity or sanctioned event:

(I) Possession of a dangerous weapon without the authorization of the school or the school district;

(II) The use, possession, or sale of a drug or controlled substance as defined in section 18-18-102 (5), C.R.S.; or

(III) The commission of an act that, if committed by an adult, would be robbery pursuant to part 3 of article 4 of title 18, C.R.S., or assault pursuant to part 2 of article 3 of title 18, C.R.S., other than the commission of an act that would be third degree assault under section 18-3-204, C.R.S., if committed by an adult.

(e) Repeated interference with a school's ability to provide educational opportunities to other students.

(f) Carrying, using, actively displaying, or threatening with the use of a firearm facsimile that could reasonably be mistaken for an actual firearm in a school building or in or on school property. Each school district shall develop a policy that shall authorize a student to carry, bring, use, or possess a firearm facsimile on school property for either a school-related or a nonschool-related activity. Such policy shall also consider student violations under this section on a case-by-case basis using the individual facts and circumstances to determine whether suspension, expulsion, or any other disciplinary action, if any, is necessary.

(g) Pursuant to section 22-12-105 (3), making a false accusation of criminal activity against an employee of an educational entity to law enforcement authorities or school district officials or personnel.

(1.2) Each school district is encouraged to consider each of the following factors before suspending or expelling a student pursuant to a provision of subsection (1) of this section:

(a) The age of the student;

(b) The disciplinary history of the student;

(c) Whether the student has a disability;

(d) The seriousness of the violation committed by the student;

(e) Whether the violation committed by the student threatened the safety of any student or staff member; and

(f) Whether a lesser intervention would properly address the violation committed by the student.

(1.5) Notwithstanding any other provision of law, in accordance with the provisions of 20 U.S.C. sec. 7961, a student who is determined to have brought a firearm to a school, or to have possessed a firearm at a school, shall be expelled for a period of not less than one year; except that the superintendent of the student's school district may modify this requirement for a student on a case-by-case basis if such modification is in writing.

(2) Subject to the district's responsibilities under article 20 of this title, the following may be grounds for expulsion from or denial of admission to a public school, or diversion to an appropriate alternate program:

(a) Physical or mental disability such that the child cannot reasonably benefit from the programs available;

(b) Physical or mental disability or disease causing the attendance of the child suffering therefrom to be inimical to the welfare of other pupils.

(3) The following may constitute additional grounds for denial of admission to a public school:

(a) Graduation from the twelfth grade of any school or receipt of any document evidencing completion of the equivalent of a secondary curriculum;

(b) Failure to meet the requirements of age, by a child who has reached the age of six at a time after the beginning of the school year, as fixed by the board of education of the district in which the child applies for enrollment, as provided in section 22-1-115;

(c) Having been expelled from any school district during the preceding twelve months;

(d) Not being a resident of the district, unless otherwise entitled to attend under the provisions of article 23, 32, or 36 of this title;

(e) Failure to comply with the provisions of part 9 of article 4 of title 25, C.R.S. Any suspension, expulsion, or denial of admission for such failure to comply shall not be recorded as a disciplinary action but may be recorded with the student's immunization record with an appropriate explanation.

(f) Behavior in another school district during the preceding twelve months that is detrimental to the welfare or safety of other pupils or of school personnel.

(4) (a) Except as provided in paragraph (b) of this subsection (4), a school district shall prohibit any student who is expelled from a public school of the school district pursuant to paragraph (c) or (d) of subsection (1) of this section or pursuant to subsection (1.5) of this section from enrolling or reenrolling in the same school in which the victim of the offense or member of a victim's immediate family is enrolled or employed. If the school district has no actual knowledge of the name of the victim of the offense for which the student was expelled, the provisions of this subsection (4) shall be implemented only upon request of the victim or a member of the victim's immediate family.

(b) In any school district that has only one school in which the expelled student can enroll, the school district shall either:

(I) Prohibit the student expelled from the school district pursuant to paragraph (c) or (d) of subsection (1) of this section or pursuant to subsection (1.5) of this section from enrolling or reenrolling in the same school in which the victim of the offense or member of a victim's immediate family is enrolled or employed; or

(II) Design a schedule for the expelled student that, to the extent possible, avoids contact between the expelled student and the victim or a member of the victim's immediate family.

(c) The provisions of this subsection (4) shall not apply to an offense that constitutes a crime against property.

(d) The provisions of this subsection (4) shall apply only if the expelled student is convicted, is adjudicated a juvenile delinquent, receives a deferred judgment, or is placed in a diversion program as a result of committing the offense for which the student was expelled. Prior to implementation of the provisions of this subsection (4), the school district shall contact the appropriate court to determine whether the provisions of this subsection (4) apply to an expelled student. The school district shall be authorized by the provisions of section 19-1-303 (1)(b), C.R.S., to obtain such information.

(e) (I) Notwithstanding any other provision of law to the contrary, any county or district court shall have original concurrent jurisdiction to issue a temporary or permanent civil restraining order that enjoins the expelled student from enrolling or reenrolling in the same school in which the victim of the offense or member of a victim's immediate family is enrolled or employed.

(II) A motion for a temporary civil restraining order pursuant to this paragraph (e) shall be set for hearing, which hearing shall be ex parte, at the earliest possible time and shall take precedence over all matters except those matters of the same character that have been on the court docket for a longer period of time. The court shall hear all such motions as expeditiously as possible.

History

Source: L. 63: p. 864, 7. C.R.S. 1963: 123-20-7. L. 73: p. 1280 2. L. 78: (3)(e) added, p. 429, 2, effective April 4. L. 79: (2) amended, p. 788, 1, effective June 16; (1)(c) amended, p. 787, 1, effective July 1; (3)(a) amended, p. 789, 1, effective July 1. L. 84: (1)(d) amended, p. 598, 3, effective April 5. L. 93: (1)(c), (1)(d), and (3)(c) amended and (1)(e) and (3)(f) added, p. 459, 4, 5, effective April 19; (1)(c) amended, p. 2111, 1, effective June 9; (1)(c.5) added and (1)(d) amended, p. 453, 5, effective July 1. L. 94: (3)(d) amended, p. 560, 6, effective April 6; (1)(c) amended, p. 1633, 40, effective May 31; (1)(d) amended, p. 447, 2, effective July 1. L. 96: (1)(c.5) and (1)(d) amended, p. 1806, 3, effective July 1. L. 98: (1)(d)(II)(A) amended and (1)(d)(III) added, p. 460, 1, effective April 21; (1)(c.5)(IV) amended, p. 572, 7, effective April 30. L. 99: (4) added, p. 394, 1, effective July 1. L. 2000: (1)(c.5) amended, p. 1971, 12, effective June 2. L. 2007: (1)(c) amended, p. 1568, 14, effective May 31. L. 2009: (1)(d)(II)(A) amended and (1)(f) added, (SB 09-237), ch. 154, p. 666, 1, 2, effective April 21; (1)(c.5)(I) and (1)(c.5)(III) amended, (HB 09-1243), ch. 290, p. 1424, 4, effective May 21. L. 2010: (1)(c.5)(II) amended, (HB 10-1232), ch. 163, p. 571, 8, effective April 28; (1)(c) amended, (HB 10-1422), ch. 419, p. 2077, 43, effective August 11. L. 2012: IP(1), (1)(c.5)(I), (1)(c.5)(II), (1)(c.5)(III), (1)(d), IP(2), IP(3), (4)(a), and (4)(b)(I) amended and (1)(g), (1.2), and (1.5) added, (HB 12-1345), ch. 188, p. 741, 26, effective May 19; (1)(d)(I) amended, (HB 12-1311), ch. 281, p. 1626, 65, effective July 1. L. 2017: (1.5) amended, (SB 17-294), ch. 264, p. 1396, 48, effective May 25.

Annotations

Editor's note: Amendments to subsection (1)(c) in Senate Bill 93-140 and House Bill 93-1095 were harmonized. Amendments to subsection (1)(d) in Senate Bill 93-140 and House Bill 93-1093 were harmonized. Amendments to subsection (1)(d) by House Bill 12-1311 and House Bill 12-1345 were harmonized.

Annotations

 

ANNOTATION

Annotations

Law reviews. For note, "The Right to Dress and Go to School", see 37 U. Colo. L. Rev. 493 (1965). For comment, "The Rights of Handicapped Students in Disciplinary Proceedings by Public School Authorities", see 53 U. Colo. L. Rev. 367 (1982). For comment, "Warning Bell: The Inherent Difficulties of Responding to Student-on-Student Sexual Harassment in Colorado Middle Schools", see 76 U. Colo. L. Rev. 813 (2005). For article, "Due Process Protections for Public School Students Facing Discipline", see 44 Colo. Law. 67 (Oct. 2015).

Subsection (1)(c) is not vague and overbroad and does afford notice of the type of conduct which is proscribed; therefore, it is constitutional on its face. People in Interest of K.P., 182 Colo. 409, 514 P.2d 1131 (1973).

In subsection (1)(c) the general assembly has provided factors in sufficiently clear and definite language to apprise students of the type of conduct which is prohibited. People in Interest of K.P., 182 Colo. 409, 514 P.2d 1131 (1973).

Standard of conduct in subsection (1)(c) distinguished from comparable, void statutory language. The standard of conduct set forth in subsection (1)(c) is distinguishable in two decisive respects from comparable statutory language which has been held to be void. First, the subsection focuses its prohibition only on conduct which is directed toward other pupils -- a narrowed class of individuals. Second, the conduct proscribed is strictly limited to conduct which is hostile to welfare, safety, or morals and could not be utilized to prohibit all forms of socially unacceptable conduct. People in Interest of K.P., 182 Colo. 409, 514 P.2d 1131 (1973).

Suspension for wearing black berets was not a violation of first amendment rights to free expression under the federal constitution where conduct by the students in class and out materially disrupted class work and involved substantial disorder or invasion of the rights of others. Hernandez v. Sch. Dist. No. 1, 315 F. Supp. 289 (D. Colo. 1970).

Student's expulsion hearing for violation of subsection (1)(c) held procedurally proper. People in Interest of K.P., 182 Colo. 409, 514 P.2d 1131 (1973).

Evidence of plaintiff's character and other behavior was relevant to determine whether expulsion was warranted under the circumstances. Expulsion for fighting is not mandatory under this section, so the school district had discretion to determine whether expulsion or a lesser sanction was appropriate. Nichols ex rel. Nichols v. DeStefano, 70 P.3d 505 (Colo. App. 2002), aff'd by operation of law, 84 P.3d 496 (Colo. 2004).

Applied in Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).