Title 25:
Indians
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PART 42�STUDENT RIGHTS
Section Contents
� 42.1 What
general principles apply to this part?
� 42.2 What
rights do individual students have?
� 42.3 How
should a school address alleged violations of school
policies?
� 42.4 What
are alternative dispute resolution processes?
� 42.5 When
can a school use ADR processes to address an alleged
violation?
� 42.6 When
does due process require a formal disciplinary
hearing?
� 42.7 What
does due process in a formal disciplinary proceeding
include?
� 42.8 What
are a student's due process rights in a formal disciplinary
proceeding?
� 42.9 What
are victims' rights in formal disciplinary
proceedings?
� 42.10 How
must the school communicate individual student rights to students, parents
or guardians, and staff?
� 42.11 Information
collection.
Authority: 5 U.S.C. 301, Pub. L.
107�110, 115 Stat. 1425.
Source: 70 FR 22218, Apr. 28, 2005,
unless otherwise noted.
� 42.1 What general principles apply to this
part?
top
(a) This part applies to every Bureau-funded school. The regulations in
this part govern student rights and due process procedures in disciplinary
proceedings in all Bureau-funded schools. To comply with this part, each
school must:
(1) Respect the constitutional, statutory, civil and human rights of
individual students; and
(2) Respect the role of Tribal judicial systems where appropriate.
(b) All student rights, due process procedures, and educational
practices should, where appropriate or possible, afford students
consideration of and rights equal to the student's traditional Native
customs and practices.
� 42.2 What rights do individual students
have?
top
Individual students at Bureau-funded schools have, and must be
accorded, at least the following rights:
(a) The right to an education that may take into consideration Native
American or Alaska Native values;
(b) The right to an education that incorporates applicable Federal and
Tribal constitutional and statutory protections for individuals; and
(c) The right to due process in instances of disciplinary
actions.
� 42.3 How should a school address alleged
violations of school policies?
top
(a) In addressing alleged violations of school policies, each school
must consider, to the extent appropriate, the reintegration of the student
into the school community.
(b) The school may address a student violation using alternative
dispute resolution (ADR) processes or the formal disciplinary process.
(1) When appropriate, the school should first attempt to use the ADR
processes described in �42.4 that may allow resolution of the alleged
violation without recourse to punitive action.
(2) Where ADR processes do not resolve matters or cannot be used, the
school must address the alleged violation through a formal disciplinary
proceeding under �42.7 consistent with the due process rights described in
�42.7.
� 42.4 What are alternative dispute resolution
processes?
top
Alternative dispute resolution (ADR) processes are formal or informal
processes that may allow resolution of the violation without recourse to
punitive action.
(a) ADR processes may:
(1) Include peer adjudication, mediation, and conciliation; and
(2) Involve appropriate customs and practices of the Indian Tribes or
Alaska Native Villages to the extent that these practices are readily
identifiable.
(b) For further information on ADR processes and how to use them,
contact the Office of Collaborative Action and Dispute Resolution by:
(1) Sending an e-mail to: [email protected] ; or
(2) Writing to: Office of Collaborative Action and Dispute Resolution,
Department of the Interior, 1849 C Street NW., MS 5258, Washington, DC
20240.
� 42.5 When can a school use ADR processes to
address an alleged violation?
top
(a) The school may address an alleged violation through the ADR
processes described in �42.4, unless one of the conditions in paragraph
(b) of this section applies.
(b) The school must not use ADR processes in any of the following
circumstances:
(1) Where the Act requires immediate expulsion (�zero tolerance�
laws);
(2) For a special education disciplinary proceeding where use of ADR
would not be compatible with the Individuals with Disabilities Education
Act (Pub. L. 105�17); or
(3) When all parties do not agree to using alternative dispute
resolution processes.
(c) If ADR processes do not resolve matters or cannot be used, the
school must address alleged violations through the formal disciplinary
proceeding described in �42.8.
� 42.6 When does due process require a formal
disciplinary hearing?
top
Unless local school policies and procedures provide for less, a formal
disciplinary hearing is required before a suspension in excess of 10 days
or expulsion.
� 42.7 What does due process in a formal
disciplinary proceeding include?
top
Due process must include written notice of the charges and a fair and
impartial hearing as required by this section.
(a) The school must give the student written notice of charges within a
reasonable time before the hearing required by paragraph (b) of this
section. Notice of the charges includes:
(1) A copy of the school policy allegedly violated;
(2) The facts related to the alleged violation;
(3) Information about any statements that the school has received
relating to the charge and instructions on how to obtain copies of those
statements; and
(4) Information regarding those parts of the student's record that the
school will consider in rendering a disciplinary decision.
(b) The school must hold a fair and impartial hearing before imposing
disciplinary action, except under the following circumstances:
(1) If the Act requires immediate removal (such as, if the student
brought a firearm to school) or if there is some other statutory basis for
removal;
(2) In an emergency situation that seriously and immediately endangers
the health or safety of the student or others; or
(3) If the student (or the student's parent or guardian if the student
is less than 18 years old) chooses to waive entitlement to a hearing.
(c) In an emergency situation under paragraph (b)(2) of this section,
the school:
(1) May temporarily remove the student;
(2) Must immediately document for the record the facts giving rise to
the emergency; and
(3) Must afford the student a hearing that follows due process, as set
forth in this part, within ten days.
� 42.8 What are a student's due process rights
in a formal disciplinary proceeding?
top
A student has the following due process rights in a formal disciplinary
proceeding:
(a) The right to have present at the hearing the student's parents or
guardians (or their designee);
(b) The right to be represented by counsel (legal counsel will not be
paid for by the Bureau-funded school or the Secretary);
(c) The right to produce, and have produced, witnesses on the student's
behalf and to confront and examine all witnesses;
(d) The right to the record of the disciplinary action, including
written findings of fact and conclusions;
(e) The right to administrative review and appeal under school
policy;
(f) The right not to be compelled to testify against himself or
herself; and
(g) The right to have an allegation of misconduct and related
information expunged from the student's school record if the student is
found not guilty of the charges.
� 42.9 What are victims' rights in formal
disciplinary proceedings?
top
In formal disciplinary proceedings, each school must consider victims'
rights when appropriate.
(a) The victim's rights may include a right to:
(1) Participate in disciplinary proceedings either in writing or in
person;
(2) Provide a statement concerning the impact of the incident on the
victim; and
(3) Have the outcome explained to the victim and to his or her parents
or guardian by a school official, consistent with confidentiality.
(b) For the purposes of this part, the victim is the actual victim, not
his or her parents or guardians.
� 42.10 How must the school communicate
individual student rights to students, parents or guardians, and
staff?
top
Each school must:
(a) Develop a student handbook that includes local school policies,
definitions of suspension, expulsion, zero tolerance, and other
appropriate terms, and a copy of the regulations in this part;
(b) Provide all school staff a current and updated copy of student
rights and responsibilities before the first day of each school year;
(c) Provide all students and their parents or guardians a current and
updated copy of student rights and responsibilities every school year upon
enrollment; and
(d) Require students, school staff, and to the extent possible, parents
and guardians, to confirm in writing that they have received a copy and
understand the student rights and responsibilities.
� 42.11 Information collection.
top
Notwithstanding any other provision of law, no person is required to
respond to, nor shall any person be subject to a penalty for failure to
comply with a collection of information, subject to the requirements of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. )
(PRA), unless that collection of information displays a currently valid
Office of Management and Budget (OMB) Control Number. This part in ��42.6,
42.7, and 42.9 contains collections of information subject to the PRA.
These collections have been approved by OMB under control number
1076�0163.
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