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Restorative Justice Bills Await Governor's Signature

December 15, 2016

A set of bills, recently enrolled and awaiting the Governor's signature, will radically alter the landscape of student disciplinary action in Michigan. House Bills 5618, 5619, 5620, 5621, 5693, 5694 and 5695 (collectively, the "Bills") inject the concept of "Restorative Justice" into the disciplinary process related to students. This article is the first of two e-alerts. This e-alert will describe the Bills. The companion e-alert will describe implementation of the Restorative Justice process and provide tips and best practices. Clark Hill is hosting a webinar with a Restorative Justice expert on January 4, 2017 from 12 PM – 12:45 PM. Click here to register for this complimentary webinar.

According to the House Fiscal Agency's Legislative Analysis, the impetus behind the Bills was the unintended consequences of the so-called "zero tolerance" legislation introduced in the mid- to late-1990's. This legislation, spurred in large part by the Columbine High School shootings, was intended to foster a safe campus environment for children. Experts, however, have noted that the zero tolerance legislation leaves no room to consider mitigating factors and has been strongly linked to higher drop-out rates and inequitable application. 

Student handbooks, board policies and building level disciplinary processes have incorporated what, until now, has been the mandatory requirements of the zero tolerance legislation.

As previously reported in our November 1, 2016 e-alert, the Bills create a rebuttable presumption relating to the consequence of a behavior meriting a suspension of more than 10 days or an expulsion that the suspension or expulsion is not justified unless the School can demonstrate that it considered the potential mitigating factors described below. This rebuttable presumption applies to the consideration of a suspension or expulsion of a pupil for physical assault against a pupil or a school employee under MCL 380.1310 and 380.1311a and applies to suspensions or expulsions under MCL 380.1311 for committing a gross misdemeanor or persistent disobedience as well as many of the other zero tolerance offenses (criminal sexual conduct, arson, and possession of a dangerous weapon other than a firearm). 

If the discipline is for a period of 10 or fewer days, there is no rebuttable presumption, but each mitigating factor must be considered.

The mitigating factors are:

  1. the pupil's age;
  2. the pupil's disciplinary history;
  3. whether the pupil has a disability;
  4. the seriousness of the violation or behavior committed by the pupil;
  5. whether the violation or behavior committed by the pupil threatened the safety of any pupil or staff member;
  6. whether Restorative Practices will be used to address the violation or behavior committed by the pupil; and
  7. whether a lesser intervention would properly address the violation or behavior committed by the pupil.

The term "Restorative Practices" means actions that may include victim-offender conferences that are initiated by the victim, that are approved by the victim's parent or legal guardian or, if the victim is at least age 15, by the victim; that are attended voluntarily by the victim, a victim advocate, the offender, members of the school community, and supporters of the victim and the offender; and that provide an opportunity for the offender to accept responsibility for the harm caused to those affected by the misconduct and to participate in setting consequences to repair the harm. 

The process of agreeing to Restorative Practices would be undertaken by a Restorative Practices Team, which would be empowered to require the pupil to do one or more of the following:  apologize; participate in community service, restoration or counseling; or pay restitution. The consequence would be incorporated into an agreement that sets time limits for completion of the consequence(s) and is signed by all participants.

In addition to being considered by disciplinary tribunals, Restorative Practices will be required to be the first consideration to remediate offenses such as interpersonal conflicts, bullying, verbal and physical conflicts, theft, damage to property, class disruption and harassment and cyberbullying.

While the proposed effective date of the Bills is August 1, 2017, it will be important for school districts and public school academies to ensure implementation of the Bills and their requirements. We will discuss best practices for implementation in a follow-up to this e-alert.

If you have any questions about the Bills, please contact Joseph B. Urban at | (248) 988-1829, or another member of Clark Hill's Education Practice Group.

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