2005 North Carolina Code - General Statutes Article 27 - Discipline.

Article 27.

Discipline.

§ 115C‑390.  School personnel may use reasonable force.

Except as restricted or prohibited by rules adopted by the local boards of education, principals, teachers, substitute teachers, voluntary teachers, and teacher assistants and student teachers in the public schools of this State may use reasonable force in the exercise of lawful authority to restrain or correct pupils and maintain order. (1955, c. 1372, art. 17, s. 4; 1959, c. 1016; 1969, c. 638, ss. 2, 3; 1971, c. 434; 1981, c. 423, s. 1; 1985 (Reg. Sess., 1986), c. 975, s. 21; 1989, c. 585, s. 6; 1991, c. 269, s. 1.)

 

§ 115C‑391.  Corporal punishment, suspension, or expulsion of pupils.

(a)       Local boards of education shall adopt policies not inconsistent with the provisions of the Constitutions of the United States and North Carolina, governing the conduct of students and establishing procedures to be followed by school officials in suspending or expelling any student, or in disciplining any student if the offensive behavior could result in suspension, expulsion, or the administration of corporal punishment. Local boards of education shall include a reasonable dress code for  students in these policies.

The policies that shall be adopted for the administration of corporal punishment shall include at a minimum the following conditions:

(1)       Corporal punishment shall not be administered in a classroom with other children present;

(2)       The student body shall be informed beforehand what general types of misconduct could result in corporal punishment;

(3)       Only a teacher, substitute teacher, principal, or assistant principal may administer corporal punishment and may do so only in the presence of a principal, assistant principal, teacher, substitute teacher, teacher assistant, or student teacher, who shall be informed beforehand and in the student's presence of the reason for the punishment; and

(4)       An appropriate school official shall provide the child's parent or guardian with notification that corporal punishment has been administered, and upon request, the official who administered the corporal punishment shall provide the child's parent or guardian a written explanation of the reasons and the name of the second school official who was present.

Each local board shall publish all the policies mandated by this subsection and make them available to each student and his parent or guardian at the beginning of each school year. Notwithstanding any policy adopted pursuant to this section, school personnel may use reasonable force, including corporal punishment, to control behavior or to remove a person from the scene in those situations when necessary:

(1)       To quell a disturbance threatening injury to others;

(2)       To obtain possession of weapons or other dangerous objects on the person, or within the control, of a student;

(3)       For self‑defense;

(4)       For the protection of persons or property; or

(5)       To maintain order on school property, in the classroom, or at a school‑related activity on or off school property.

(b)       The principal of a school, or his delegate, shall have authority to suspend for a period of 10 days or less any student who willfully violates policies of conduct established by the local board of education: Provided, that a student suspended pursuant to this subsection shall be provided an opportunity to take any quarterly, semester or grading period examinations missed during the suspension period.

(c)       The principal of a school, with the prior approval of the superintendent, shall have the authority to suspend for periods of times in excess of 10 school days but not exceeding the time remaining in the school year, any pupil who willfully violates the policies of conduct established by the local board of education. The pupil or his parents may appeal the decision of the principal to the local board of education.

(d)       Notwithstanding G.S. 115C‑378, a local board of education may, upon recommendation of the principal and superintendent, expel any student 14 years of age or older whose behavior indicates that the student's continued presence in school constitutes a clear threat to the safety of other students or employees. The local board of education's decision to expel a student under this section shall be based on clear and convincing evidence. Prior to ordering the expulsion of a student pursuant to this subsection, the local board of education shall consider whether there is an alternative program offered by the local school administrative unit that may provide education services for the student who is subject to expulsion. At any time after the first July 1 that is at least six months after the board's decision to expel a student under this subsection, a student may request the local board of education to reconsider that decision. If the student demonstrates to the satisfaction of the local board of education that the student's presence in school no longer constitutes a threat to the safety of other students or employees, the board shall readmit the student to a school in that local school administrative unit on a date the board considers appropriate.

(d1)     A local board of education or superintendent shall suspend for 365 calendar days any student who:

(1)       Brings onto educational property or to a school‑sponsored curricular or extracurricular activity off educational property, or

(2)       Possesses on educational property or at a school‑sponsored curricular or extracurricular activity off educational property,

a weapon, as defined in G.S. 14‑269.2(b), 14‑269.2(b1), 14‑269.2(g), and 14‑269.2(h). The local board of education upon recommendation by the superintendent may modify this suspension requirement on a case‑by‑case basis that includes, but is not limited to, the procedures established for the discipline of students with disabilities and may also provide, or contract for the provision of, educational services to any student suspended pursuant to this subsection in an alternative school setting or in another setting that provides educational and other services.

(d2)    (1)       The superintendent shall, upon recommendation of the principal, remove to an alternative educational setting, as provided in subdivision (4) of this subsection, any student who is at least 13 and who physically assaults and seriously injures a teacher or other school personnel. If no appropriate alternative educational setting is available, then the superintendent shall, upon recommendation of the principal, suspend for no less than 300 days but no more than 365 days any student who is at least 13 and who physically assaults and seriously injures a teacher or other school personnel.

(2)       The superintendent may, upon recommendation of the principal, remove to an alternative educational setting any student who is at least 13 and who does one of the following:

a.         Physically assaults a teacher or other adult who is not a student.

b.         Physically assaults another student if the assault is witnessed by school personnel.

c.         Physically assaults and seriously injures another student.

If no appropriate alternative educational setting is available, then the superintendent may, upon recommendation of the principal, suspend this student for up to 365 days.

(3)       For purposes of this subsection, the conduct leading to suspension or removal to an alternative educational setting must occur on school property or at a school‑sponsored or school‑related activity on or off school property. This subsection shall not apply when the student who is subject to suspension or removal was acting in self‑defense. If a teacher is assaulted or injured and as a result a student is suspended or removed to an alternative educational setting under this subsection, then the student shall not be returned to that teacher's classroom unless the teacher consents. If a student is suspended under this subsection, the board may assign the student to an alternative educational setting upon the expiration of the period of suspension.

(4)       If the superintendent removes the student to an alternative educational setting, as provided in subdivision (1) of this subsection, and the conduct leading to the removal occurred on or before the ninetieth school day, the board shall remove the student to that setting for the remainder of the current school year and the first 90 school days in the following school year. If the superintendent chooses to remove the student to an alternative educational setting, as provided in subdivision (1) of this subsection, and the conduct leading to the removal occurred after the ninetieth school day, the board shall remove the student to that setting for the remainder of the current school year and for the entire subsequent school year. Notwithstanding these requirements, the superintendent may authorize a shorter or longer length of time a student must remain in an alternative educational setting if the superintendent finds this would be more appropriate based upon the recommendations of the principals of the alternative school and the school to which the student will return.

(d3)     A local board of education or superintendent shall suspend for 365 calendar days any student who, by any means of communication to any person or group of persons, makes a report, knowing or having reason to know the report is false, that there is located on educational property or at a school‑sponsored curricular or extracurricular activity off educational property any device designed to destroy or damage property by explosion, blasting, or burning, or who, with intent to perpetrate a hoax, conceals, places, or displays any device, machine, instrument, or artifact on educational property or at a school‑sponsored curricular or extracurricular activity off educational property, so as to cause any person reasonably to believe the same to be a bomb or other device capable of causing injury to persons or property. The local board upon recommendation by the superintendent may modify either suspension requirement on a case‑by‑case basis that includes, but is not limited to, the procedures established for the discipline of students with disabilities and may also provide, or contract for the provision of, educational services to any student suspended under this subsection in an alternative school setting or in another setting that provides educational and other services. For purposes of this subsection and subsection (d1) of this section, the term "educational property" has the same definition as in G.S. 14‑269.2(a)(1).

(d4)     A local board of education or superintendent may suspend for up to 365 days any student who:

(1)       By any means of communication to any person or group of persons, makes a report, knowing or having reason to know the report is false, that there is located on educational property or at a school‑sponsored curricular or extracurricular activity off educational property any device, substance, or material designed to cause harmful or life‑threatening illness or injury to another person;

(2)       With intent to perpetrate a hoax, conceals, places, disseminates, or displays on educational property or at a school‑sponsored curricular or extracurricular activity off educational property any device, machine, instrument, artifact, letter, package, material, or substance, so as to cause any person reasonably to believe the same to be a substance or material capable of causing harmful or life‑threatening illness or injury to another person;

(3)       Threatens to commit on educational property or at a school‑sponsored curricular or extracurricular activity off educational property an act of terror that is likely to cause serious injury or death, when that threat is intended to cause a significant disruption to the instructional day or a school‑sponsored activity or causes that disruption;

(4)       Makes a report, knowing or having reason to know the report is false, that there is about to occur or is occurring on educational property or at a school‑sponsored curricular or extracurricular activity off educational property an act of terror that is likely to cause serious injury or death, when that report is intended to cause a significant disruption to the instructional day or a school‑sponsored activity or causes that disruption; or

(5)       Conspires to commit any of the acts described in this subsection.

(d5)     When a student is expelled or suspended for more than 10 days, the local board shall give notice to the student's parent or guardian of the student's rights under this section. If English is the second language of the parent or guardian, the notice shall be written in the parent or guardian's first language when the appropriate foreign language resources are readily available and in English, and both versions shall be in plain language and shall be easily understandable.

(e)       A decision of a superintendent under subsection (c), (d1), (d2), (d3), or (d4) of this section may be appealed to the local board of education. A decision of the local board upon this appeal or of the local board under subsection (d) or (d1) of this section is final and, except as provided in this subsection, is subject to judicial review in accordance with Article 4 of Chapter 150B of the General Statutes. A person seeking judicial review shall file a petition in the superior court of the county where the local board made its decision.

(f)        Local boards of education shall ensure they have clear policies governing the conduct of students. At a minimum, these policies shall state the consequences of violent or assaultive behavior, possessions of weapons, and criminal acts committed on school property or at school‑sponsored functions. These policies shall provide that when notice is given to students or parents of a suspension of more than 10 days or expulsion, this notice shall identify what information will be included in the student's official record and the procedure for expungement of this information under G.S. 115C‑402. The State Board shall develop guidelines to assist local boards in this process.

(g)       Notwithstanding the provisions of this section, the policies and procedures for the discipline of students with disabilities shall be consistent with federal laws and regulations.

(h)       Notwithstanding any other law, no officer or employee of the State Board of Education or of a local board of education shall be civilly liable for using reasonable force, including corporal punishment, in conformity with State law, State or local rules, or State or local policies regarding the control, discipline, suspension, and expulsion of students. Furthermore, the burden of proof is on the claimant to show that the amount of force used was not reasonable. (1955, c. 1372, art. 17, s. 5; 1959, c. 573, s. 12; 1963, c. 1223, s. 5; 1965, c. 584, s. 14; 1971, c. 1158; 1979, c. 874, s. 1; 1981, c. 423, s. 1; 1987, c. 572, ss. 1, 2; c. 827, s. 52; 1989, c. 585, s. 7; 1993, c. 509, s. 4; 1995, c. 293, ss. 1, 2; c. 386, s. 1; 1995 (Reg. Sess., 1996), c. 716, s. 21; 1997‑443, s. 8.29(q)(1); 1998‑220, ss. 7‑9; 1999‑257, ss. 6‑8; 1999‑387, ss. 1‑3; 2001‑195, s. 2; 2001‑244, s. 1; 2001‑363, s. 2(c); 2001‑487, s. 75; 2001‑500, ss. 4, 5, 6.1.)

 

§ 115C‑391.1.  (Effective July 1, 2006) Permissible use of seclusion and restraint.

(a)       It is the policy of the State of North Carolina to:

(1)       Promote safety and prevent harm to all students, staff, and visitors in the public schools.

(2)       Treat all public school students with dignity and respect in the delivery of discipline, use of physical restraints or seclusion, and use of reasonable force as permitted by law.

(3)       Provide school staff with clear guidelines about what constitutes use of reasonable force permissible in North Carolina public schools.

(4)       Improve student achievement, attendance, promotion, and graduation rates by employing positive behavioral interventions to address student behavior in a positive and safe manner.

(5)       Promote retention of valuable teachers and other school personnel by providing appropriate training in prescribed procedures, which address student behavior in a positive and safe manner.

(b)       The following definitions apply in this section:

(1)       "Assistive technology device" means any item, piece of equipment, or product system that is used to increase, maintain, or improve the functional capacities of a child with a disability.

(2)       "Aversive procedure" means a systematic physical or sensory intervention program for modifying the behavior of a student with a disability which causes or reasonably may be expected to cause one or more of the following:

a.         Significant physical harm, such as tissue damage, physical illness, or death.

b.         Serious, foreseeable long‑term psychological impairment.

c.         Obvious repulsion on the part of observers who cannot reconcile extreme procedures with acceptable, standard practice, for example: electric shock applied to the body; extremely loud auditory stimuli; forcible introduction of foul substances to the mouth, eyes, ears, nose, or skin; placement in a tub of cold water or shower; slapping, pinching, hitting, or pulling hair; blindfolding or other forms of visual blocking; unreasonable withholding of meals; eating one's own vomit; or denial of reasonable access to toileting facilities.

(3)       "Behavioral intervention" means the implementation of strategies to address behavior that is dangerous, disruptive, or otherwise impedes the learning of a student or others.

(4)       "IEP" means a student's Individualized Education Plan.

(5)       "Isolation" means a behavior management technique in which a student is placed alone in an enclosed space from which the student is not prevented from leaving.

(6)       "Law enforcement officer" means a sworn law enforcement officer with the power to arrest.

(7)       "Mechanical restraint" means the use of any device or material attached or adjacent to a student's body that restricts freedom of movement or normal access to any portion of the student's body and that the student cannot easily remove.

(8)       "Physical restraint" means the use of physical force to restrict the free movement of all or a portion of a student's body.

(9)       "School personnel" means:

a.         Employees of a local board of education.

b.         Any person working on school grounds or at a school function under a contract or written agreement with the public school system to provide educational or related services to students.

c.         Any person working on school grounds or at a school function for another agency providing educational or related services to students.

(10)     "Seclusion" means the confinement of a student alone in an enclosed space from which the student is:

a.         Physically prevented from leaving by locking hardware or other means.

b.         Not capable of leaving due to physical or intellectual incapacity.

(11)     "Time‑out" means a behavior management technique in which a student is separated from other students for a limited period of time in a monitored setting.

(c)       Physical Restraint:

(1)       Physical restraint of students by school personnel shall be considered a reasonable use of force when used in the following circumstances:

a.         As reasonably needed to obtain possession of a weapon or other dangerous objects on a person or within the control of a person.

b.         As reasonably needed to maintain order or prevent or break up a fight.

c.         As reasonably needed for self‑defense.

d.         As reasonably needed to ensure the safety of any student, school employee, volunteer, or other person present, to teach a skill, to calm or comfort a student, or to prevent self‑injurious behavior.

e.         As reasonably needed to escort a student safely from one area to another.

f.          If used as provided for in a student's IEP or Section 504 plan or behavior intervention plan.

g.         As reasonably needed to prevent imminent destruction to school or another person's property.

(2)       Except as set forth in subdivision (1) of this subsection, physical restraint of students shall not be considered a reasonable use of force, and its use is prohibited.

(3)       Physical restraint shall not be considered a reasonable use of force when used solely as a disciplinary consequence.

(4)       Nothing in this subsection shall be construed to prevent the use of force by law enforcement officers in the lawful exercise of their law enforcement duties.

(d)       Mechanical Restraint:

(1)       Mechanical restraint of students by school personnel is permissible only in the following circumstances:

a.         When properly used as an assistive technology device included in the student's IEP or Section 504 plan or behavior intervention plan or as otherwise prescribed for the student by a medical or related service provider.

b.         When using seat belts or other safety restraints to secure students during transportation.

c.         As reasonably needed to obtain possession of a weapon or other dangerous objects on a person or within the control of a person.

d.         As reasonably needed for self‑defense.

e.         As reasonably needed to ensure the safety of any student, school employee, volunteer, or other person present.

(2)       Except as set forth in subdivision (1) of this subsection, mechanical restraint, including the tying, taping, or strapping down of a student, shall not be considered a reasonable use of force, and its use is prohibited.

(3)       Nothing in this subsection shall be construed to prevent the use of mechanical restraint devices, such as handcuffs by law enforcement officers in the lawful exercise of their law enforcement duties.

(e)       Seclusion:

(1)       Seclusion of students by school personnel may be used in the following circumstances:

a.         As reasonably needed to respond to a person in control of a weapon or other dangerous object.

b.         As reasonably needed to maintain order or prevent or break up a fight.

c.         As reasonably needed for self‑defense.

d.         As reasonably needed when a student's behavior poses a threat of imminent physical harm to self or others or imminent substantial destruction of school or another person's property.

e.         When used as specified in the student's IEP, Section 504 plan, or behavior intervention plan; and

1.         The student is monitored while in seclusion by an adult in close proximity who is able to see and hear the student at all times.

2.         The student is released from seclusion upon cessation of the behaviors that led to the seclusion or as otherwise specified in the student's IEP or Section 504 plan.

3.         The space in which the student is confined has been approved for such use by the local education agency.

4.         The space is appropriately lighted.

5.         The space is appropriately ventilated and heated or cooled.

6.         The space is free of objects that unreasonably expose the student or others to harm.

(2)       Except as set forth in subdivision (1) of this subsection, the use of seclusion is not considered reasonable force, and its use is not permitted.

(3)       Seclusion shall not be considered a reasonable use of force when used solely as a disciplinary consequence.

(4)       Nothing in this subsection shall be construed to prevent the use of seclusion by law enforcement officers in the lawful exercise of their law enforcement duties.

(f)        Isolation. – Isolation is permitted as a behavior management technique provided that:

(1)       The space used for isolation is appropriately lighted, ventilated, and heated or cooled.

(2)       The duration of the isolation is reasonable in light of the purpose of the isolation.

(3)       The student is reasonably monitored while in isolation.

(4)       The isolation space is free of objects that unreasonably expose the student or others to harm.

(g)       Time‑Out. – Nothing in this section is intended to prohibit or regulate the use of time‑out as defined in this section.

(h)       Aversive Procedures. – The use of aversive procedures as defined in this section is prohibited in public schools.

(i)        Nothing in this section modifies the rights of school personnel to use reasonable force as permitted under G.S. 115C‑390 or modifies the rules and procedures governing discipline under G.S. 115C‑391(a).

(j)        Notice, Reporting, and Documentation.

(1)       Notice of procedures. – Each local board of education shall provide copies of this section and all local board policies developed to implement this section to school personnel and parents or guardians at the beginning of each school year.

(2)       Notice of specified incidents:

a.         School personnel shall promptly notify the principal or principal's designee of:

1.         Any use of aversive procedures.

2.         Any prohibited use of mechanical restraint.

3.         Any use of physical restraint resulting in observable physical injury to a student.

4.         Any prohibited use of seclusion or seclusion that exceeds 10 minutes or the amount of time specified on a student's behavior intervention plan.

b.         When a principal or principal's designee has personal knowledge or actual notice of any of the events described in this subdivision, the principal or principal's designee shall promptly notify the student's parent or guardian and will provide the name of a school employee the parent or guardian can contact regarding the incident.

(3)       As used in subdivision (2) of this subsection, "promptly notify" means by the end of the workday during which the incident occurred when reasonably possible, but in no event later than the end of following workday.

(4)       The parent or guardian of the student shall be provided with a written incident report for any incident reported under this section within a reasonable period of time, but in no event later than 30 days after the incident. The written incident report shall include:

a.         The date, time of day, location, duration, and description of the incident and interventions.

b.         The events or events that led up to the incident.

c.         The nature and extent of any injury to the student.

d.         The name of a school employee the parent or guardian can contact regarding the incident.

(5)       No local board of education or employee of a local board of education shall discharge, threaten, or otherwise retaliate against another employee of the board regarding that employee's compensation, terms, conditions, location, or privileges of employment because the employee makes a report alleging a prohibited use of physical restraint, mechanical restraint, aversive procedure, or seclusion, unless the employee knew or should have known that the report was false.

(k)       Nothing in this section shall be construed to create a private cause of action against any local board of education, its agents or employees, or any institutions of teacher education or their agents or employees or to create a criminal offense. (2005‑205, s. 2.)

 

§ 115C‑392.  Appeal of disciplinary measures.

Appeals of disciplinary measures are subject to the provisions of G.S. 115C‑45(c). (1981, c. 423, s. 1.)

 

§§ 115C‑393 through 115C‑397.  Reserved for future codification purposes.