Student behavior and Indiana code: new mandates, existing laws

According to data published by the Indiana Department of Education, for Indiana students between 2013 and 2023, chronic absenteeism (students who miss more than 10 school days in a year) has roughly doubled since pre-pandemic for approximately 10 to 20% of students.

Similarly, educators report a spike in behavioral problems from students.

Addressing trending student behaviors takes focus and fortitude.

Decreasing these growing statistics and increasing positive outcomes over the long-term will require a cooperative approach involving all stakeholders: schools, parents, students, local communities, and juvenile courts.

In the last two legislative sessions, Indiana passed several laws to address these issues.

New mandate: wireless communication devices

Most recently, the Indiana General Assembly addressed disruptive behaviors by limiting wireless communication devices at school. Senate Enrolled Act 185 (2024) (authored by Senator Jeff Raatz) mandates public and charter schools adopt, publish, and implement a new policy on wireless communication devices.

A “wireless communication device” is defined as a portable wireless device that has the capability to provide voice, messaging, or other data communication between two or more parties. This includes cell phones, laptops, tablets, and gaming devices specifically, but the definition is not limited. (A device with “wires” is not covered.)

A school’s policy must prohibit students from accessing such a device during instructional time unless permitted by a teacher for educational purposes.

Exceptions also include emergencies, management of a student’s health care, and stipulations in one’s Individualized Education Program or 504 plan.

New Mandate: Absenteeism

The legislature also passed Senate Enrolled Act282 (2024) (authored by Senator Stacey Donato) regarding elementary school absenteeism.

These rules apply to public schools (including charter schools). The new law mandates schools to adopt a truancy prevention policy regarding kindergarten through sixth grade.

If a student has five unexcused absences in ten weeks, the school must send a notice to the parent. The notice must dictate that

1) the parent is responsible for monitoring and ensuring the attendance and compliance with attendance laws,

2) the school will initiate truancy prevention measures including reporting,

3) the parent is required to attend an attendance conference and

4) procedures regarding juvenile court and DCS. This law is in addition to the existing, unchanged truancy reporting laws.

The attendance conference should occur within five days once the student has accumulated five unexcused absences. The conference should include the parents, a teacher of the student, and a school representative.

At the conference, the group must discuss the student’s absences and establish a prevention plan. The plan must not exceed 45 days.

The school must offer additional counseling services to the student if the absences are related to their pregnancy, foster care, homelessness, or severe illness/treatment.

New(er) mandate: bullying

In a rarity with the current Republican supermajority, a bill authored by a Democrat (Representative Vernon Smith) survived the legislative process via House Enrolled Act 1483 (2023).

This law changed public and charter school requirements for addressing bullying in public schools (including charter schools).

A preexisting law already required schools to prohibit bullying, including cyberbullying, in their discipline rules. The additions to the existing bullying statute in HEA 1483 require that school policies prioritize the safety of the victim.

Also, schools are now mandated to report bullying incidents to the parents of the alleged victim and perpetrator within five business days. The administration must also consider if a school transfer is warranted.

Existing general law: school discipline

Despite the added mandates from these recent laws, schools still retain the discretion to appropriately manage behavior in schools.

In general, they “have the right to take any disciplinary action necessary to promote student conduct that conforms with an orderly and effective educational system.” I.C. § 20-33-8-8(b)(2). Schools should make written disciplinary rules available for students and parents to view. I.C. § 20-33-8-12.

The school’s authority to manage behavior goes beyond just suspensions and expulsion. explicit authority to use other methods including counseling students and parents; rearranging class schedules; in-school suspension; detention; restricting extra-curricular activities; a special course of study; an alternative education program or alternative school. I.C. § 20-33-8-25.

Also, the school has authority to suspend or expel for conduct on school grounds as well as immediately before and after school hours and anytime the school is being used for a school activity, off school grounds at a school activity, or traveling to or from a school activity. I.C. § 20-33-8-14.

Existing law: expulsion

If a school determines a student must be removed, 10 days or less is a suspension. More than 10 is an expulsion.

When a student is suspended, the school must provide procedural due process in the form of a written or oral statement of the charges to the student If the student denies the charges, the school must provide a summary of the evidence and an opportunity for the student to explain the misconduct. I.C. § 20-33-8-18.

For an expulsion, the school must provide notice to the student and student’s parents regarding the right to an expulsion meeting with a neutral expulsion examiner. If the student or student’s parents disagree with the decision of the expulsion examiner, they can appeal. A school board has the discretion to take up all appeals. Regardless of whether the school board hears an appeal, the family can request judicial review.

Judicial review is generally limited to determining whether the governing body did not follow required procedures. I.C. § 20-33-8-19.

Expulsions generally should not last longer than the current school year for students expelled in the first semester and not longer than the first semester of the following school year for students expelled in the second semester.

However, an expulsion should be reviewed prior to the start of the second semester if it takes place more than three weeks before the beginning of the second semester. Expulsions should be reviewed if they are to carry over to the beginning of a new school year. I.C. § 20-33-8-20.

Existing legal protections: disability-related

Students with disabilities may have additional protection from disciplinary actions under the Individuals with Disabilities Education Act, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

Conclusion & recommendation

Instead of adding more mandates to the plates of already overextended educators, we should first exhaust the identification of successful approaches and scale them.

Indiana is a leader in school safety. One core reason for our success is an environment that fosters the sharing of best practices. Indiana even sponsors an annual “Academy” on school safety.

Perhaps doing something similar with trends such as absenteeism and bullying will move the needle.

In the meantime, there is little optimism that legislating prescriptive approaches will foster success.•

__________

Séamus Boyce and Keith Butler are education law and policy attorneys with Kroger Gardis & Regas LLP. Opinions expressed are solely those of the authors.