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Exceptions for Students Possessing a Weapon and Rebuttable Presumption

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, Nov. 22, 2017

A school board is not required to expel a student for possessing a weapon if the student establishes in a clear and convincing manner at least one of the following:

  • The object or instrument possessed by the student was not possessed for use as a weapon, or for direct or indirect delivery to another person for use as a weapon.
  • The weapon was not knowingly possessed by the student.
  • The student did not know or have reason to know that the object or instrument constituted a dangerous weapon.
  • The weapon was possessed by the student at the suggestion, request or direction of, or with the express permission of, school or police authorities.

Indeed, if the student in question has no prior history of suspension or expulsion and if any one of the above four circumstances apply, then there is a rebuttable presumption that expulsion is not justified. The district would then be responsible for overcoming this presumption with additional reasons as to why expulsion was necessary or warranted for the expulsion decision to remain in place.

The question of whether a school board or its designee is required to apply the above exceptions, at least with respect to students who have a prior history of suspension/expulsion, is subject to debate. (The rebuttable presumption requirement clearly requires that these exceptions be applied with respect to students with no prior suspension history.)

A review of the legislative history of the weapons law leads one to believe that the Legislature intended the exceptions to be discretionary. In 1994, when the Legislature initially passed the law, it read that the school board, or its designee, “shall expel the pupil permanently, subject to possible reinstatement under subsection (5), unless the pupil establishes in a clear and convincing manner at least 1 of the following [exceptions]. . .” The next year the Legislature amended the law by including the following: “However, a school board is not required to expel a pupil for possessing a weapon if the pupil establishes in a clear and convincing manner at least 1 of the following [exceptions]. . .” The word “unless” was also deleted.

Thus, it seems that the original language did require the exceptions to be applied if established in a clear and convincing manner. However, because the subsequent amendment had the effect of eliminating the previously proscriptive tone of requiring the application of the exceptions, it appears that the Legislature consciously made the decision that applying the exceptions would now be discretionary; at least as it relates to students with prior suspensions/expulsions.

The “knowingly possessed” exception, however, should always be applied in order to meet the requirements of substantive due process. Prior judicial precedent tells us that suspending or expelling a student for weapons possession, even if the student did not knowingly possess the weapon, would not be rationally related to any legitimate state interest. As a result, such disciplinary action would violate the student’s right to substantive due process under the 14th Amendment to the U.S. Constitution.

MASB’s Legal Team is currently in the process of putting together a new student discipline guideline booklet. If you have any questions regarding weapons policies, the new rebuttable presumption rules or any other discipline-related question, please don’t hesitate to contact us. We are also available to provide legal in-service trainings on this and many other issues.

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