Last summer, the Michigan Legislature amended Section 1311 of the Revised School Code, which now allows – and, in some cases, requires – schools to suspend or expel students who commit criminal sexual conduct (CSC) against fellow students off-campus. As a reminder, Section 1311 already required schools to expel, subject to the 1310d factors, students who commit CSC on school property.

Discretionary Suspension and Expulsion
One of the most significant changes to Section 1311 authorizes a board or superintendent, subject to the seven mitigating Section 1310d factors, to suspend or expel a student who commits off-campus CSC against another student from the same school. The Revised School Code’s definition of CSC includes first-, second-, third-, and fourth-degree CSC and assault with intent to commit CSC.

If the school’s investigation substantiates, by a preponderance of the evidence, student-to-student off-campus CSC, school officials may, but are not required to, suspend or expel the student perpetrator. The student may be disciplined before any conviction, adjudication or plea. In addition to discipline, school officials should also take steps to protect the victim(s) and ensure that he or she feels safe in school.
School officials must follow all disciplinary due process procedures if they determine suspension or expulsion is warranted. The discipline letter or board resolution provided to the student or his or her parent should include the following statement when imposing discipline under Section 1311(1):

“The District reserves the right to further review this matter and impose disciplinary consequences up to and including permanent expulsion under Section 1311(2), if the student pleads guilty or no contest to, or is convicted of, or adjudicated for criminal sexual conduct.”

Mandatory Expulsion
The amendments to Revised School Code Section 1311(2) mandate permanent expulsion, subject to the seven mitigating Section 1310d factors, of any student who “pleads to, is convicted of, or is adjudicated for criminal sexual conduct” against another student in the same school.

The new permanent expulsion provision requires a criminal conviction, juvenile adjudication, or other guilty/no contest plea to CSC against another student, as defined by the Revised School Code, before the mandatory permanent expulsion obligation is triggered. School officials should obtain a copy of the order of disposition, order of adjudication, or other court order detailing the outcome of the case before considering a permanent expulsion under this section of the law. Even with such an order, school officials must conduct their own investigation and, as always, take appropriate steps to protect the victim(s).

School officials should ensure that board policies, administrative guidelines, and student codes of conduct reflect potential consequences for student-to-student off-campus CSC. Board policies should address: (1) the board’s authority to suspend or expel students accused of off-campus CSC against another student; and (2) the legal requirement to permanently expel students who are judicially determined to have committed CSC against another student. Thrun Law Firm, P.C. is currently developing comprehensive board policies, including a student discipline policy that addresses off-campus CSC. Please contact policy@thrunlaw.com if you are interested in receiving more information about our policy service.