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2001 Opinions

Date:   March 21, 2001
Pprepared By:   James A. Robinson
Phone:   (850) 488-7707
Suncom:   278-7707
Opinion No.:   01-01
Staff Contact:   Diane McCain
MEMORANDUM OPINION
TO: Vickie Mannausa, Choice Office
FROM: James A. Robinson, General Counsel
SUBJECT: Legal Opinion-Charter School and Expulsion
RE: Telephone Conversation

QUESTION PRESENTED: May a charter school expel a student?

CONCLUSION: While charter schools may dismiss students in accordance with established procedures, only a district school board may expel a student.

DISCUSSION: Section 228.056(9)(a)7., Florida Statutes, requires a charter school to include admissions and dismissal procedures and a code of student conduct in its charter. Hence, the charter should provide criteria for the dismissal of a student who attends the school. However, a charter school has no authority to expel a student from other public schools in the school district. The Florida School Code establishes the district school board as sole authority to act in cases of expulsion.

Expulsion is defined at Section 228.041 (29), Florida Statutes. That definition provides:

Expulsion is the removal of the right and obligation of a student to attend a public school under conditions set by the school board, and for a period of time not to exceed the remainder of the term or school year and 1 additional; year of attendance. Expulsions may be imposed with or without continuing educational services and shall be reported accordingly. Section 230.23, Florida Statutes, establishes the powers and duties of school boards. Subsection (6)(c)1. addresses a school board's obligation as to student conduct and requires it to "adopt rules and regulations for the control, discipline, in-school suspension, suspension, and expulsion of pupils and decide all cases recommended for expulsion. . . " [Emphasis provided.] Other portions of the Florida School Code provide for the role of the school principal and superintendent, due process hearing procedures, notice to parents and Sunshine Law considerations. Prior to expulsion of a student from the school district a principal must recommend the expulsion to the superintendent. The superintendent must then recommend the action to the school board. See Sections 230.33 (8) and 232.26, Florida Statutes.

Section 228.056 (11), Florida Statutes, provides charter schools with certain exemptions from the school code, but does not exempt laws pertaining to "civil rights, including Section 228.2001, relating to discrimination; and those pertaining to student health, safety, and welfare; or as otherwise required by this section…." By definition the exemptions do not apply to expulsions, as expulsions bring into play due process guarantees under both the Constitution of the State of Florida and the Constitution of the United States. Due Process guarantees are a fundamental element of "civil rights."

The Attorney General's Office recently issued an opinion as to whether a school board may delegate its authority to adopt expulsion hearings. Citing many of the statutory provisions noted above, the opinion concludes that while a school board may delegate evidentiary hearing functions, the school board itself must make the ultimate decision of whether a student is to be expelled. A copy of that opinion is attached to this memorandum.

Because the school board is vested with the sole expulsion authority in the district, a charter school may not conduct proceedings that purport to expel a student from district schools. The charter school may dismiss a student as provided for in its charter, but the ultimate decision as to the student's continued attendance in the rest of the public school system lies with the school board.

Please contact me if you require any further legal assistance in this matter.

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