Ohio § 3301.121

§ 3301.121.

(A) In addition to the duties and responsibilities of the director of education and workforce

set forth in section 3301.12 of the Revised Code , the director, in accordance with this section and section 3313.662 of the Revised Code , shall conduct an adjudication procedure to determine whether to permanently exclude

from attending any of the public schools of this state any pupil who is the subject

of a resolution forwarded to the director by a board of education pursuant to division (D) of section 3313.662 of the Revised Code . (B)(1) Except as provided in division (B)(3) of this section, within fourteen days after

receipt of a resolution forwarded by a board of education pursuant to division (D) of section 3313.662 of the Revised Code , the director or the director's designee shall provide the pupil who is the subject

of the resolution and that pupil's parent, guardian, or custodian with a notice of

an opportunity for an adjudication hearing on the proposed permanent exclusion of

the pupil from attending any of the public schools of this state.  The notice shall include all of the following: (a) The date, time, and place of the permanent exclusion adjudication hearing; (b) A statement informing the pupil and the pupil's parent, guardian, or custodian that

the pupil may attend the adjudication hearing at the date, time, and place set forth

in the notice, that the failure of the pupil or the pupil's parent, guardian, or custodian

to attend the adjudication hearing will result in a waiver of the pupil's right to

present evidence, testimony, and factors in mitigation of the pupil's permanent exclusion

at an adjudication hearing on the proposed permanent exclusion, and that the pupil

shall be accorded all of the following rights: (i) The right to testify, to present evidence and the testimony of witnesses, and to

confront, cross-examine, and compel the attendance of witnesses; (ii) The right to a record of the hearing; (iii) The right to written findings. (c) A statement informing the pupil and the pupil's parent, guardian, or custodian that

the pupil has the right to be represented by counsel at the adjudication hearing. (d) A statement informing the pupil and the pupil's parent, guardian, or custodian that,

if the pupil by failing to attend the hearing waives the pupil's right to present

evidence, testimony, and factors in mitigation of the pupil's permanent exclusion

at an adjudication hearing on the proposed permanent exclusion, the director is required

to review the information relevant to the permanent exclusion that is available to

the director and is permitted to enter an order requiring the pupil's permanent exclusion

from attending any of the public schools of this state at any time within seven days

after the conclusion of the adjudication hearing. (2) The director or the director's designee shall provide the notice required by division

(B)(1) of this section to the pupil and to the pupil's parent, guardian, or custodian

by certified mail or personal service. (3)(a) If a pupil who is the subject of a resolution forwarded to the director by a board

of education pursuant to section 3313.662 of the Revised Code is in the custody of the department of youth services pursuant to a disposition under

any provision of Chapter 2152. of the Revised Code, other than division (A)(1)(a) of section 2152.16 of the Revised Code , at the time the resolution is forwarded, the department shall notify in writing

the director and the board of education that forwarded the resolution of that fact.  Upon receipt of the notice, the director shall delay providing the notice required

by division (B)(1) of this section and the adjudication of the request for permanent

exclusion until the director receives further notice from the department pursuant

to division (B)(3)(b) of this section. (b) At least sixty days before a pupil described in division (B)(3)(a) of this section

will be released from institutionalization or institutionalization in a secure facility

by the department of youth services, the department shall notify in writing the director

and the board of education that forwarded the resolution pursuant to section 3313.662 of the Revised Code of the impending release and shall provide in that notice information regarding the

extent of the education the pupil received while in the custody of the department,

including whether the pupil has obtained a certificate of high school equivalence. If the pupil has not obtained a certificate of high school equivalence while in the

custody of the department of youth services, the director shall provide the notice

required by division (B)(1) of this section and, at least thirty days before the pupil

is to be released from institutionalization or institutionalization in a secure facility,

conduct an adjudication procedure to determine whether to permanently exclude the

pupil from attending the public schools of this state in accordance with this section.  If the pupil has obtained a certificate of high school equivalence while in the

custody of the department, the director, in the director's discretion, may conduct

the adjudication. (C)(1) Except as provided in division (B)(3) of this section, the date of the adjudication

hearing set forth in the notice required by division (B)(1) of this section shall

be a date no less than fourteen days nor more than twenty-one days from the date the

director sends the notice by certified mail or initiates personal service of the notice. (2) The director, for good cause shown on the written request of the pupil or the pupil's

parent, guardian, or custodian, or on the director's own motion, may grant reasonable

continuances of any adjudication hearing held under this section but shall not grant

either party total continuances in excess of ten days. (3) If a pupil or the pupil's parent, guardian, or custodian does not appear at the adjudication

hearing on a proposed permanent exclusion, the director or the referee appointed by

the director shall proceed to conduct an adjudication hearing on the proposed permanent

exclusion on the date for the adjudication hearing that is set forth in the notice

provided pursuant to division (B)(1) of this section or on the date to which the hearing

was continued pursuant to division (C)(2) of this section. (D)(1) The director or a referee appointed by the director may conduct an adjudication hearing

to determine whether to permanently exclude a pupil in one of the following counties: (a) The county in which the director holds the director's office; (b) Upon the request of the pupil or the pupil's parent, guardian, custodian, or attorney,

in the county in which the board of education that forwarded the resolution requesting

the permanent exclusion is located if the director, in the director's discretion and

upon consideration of evidence of hardship presented on behalf of the requesting pupil,

determines that the hearing should be conducted in that county. (2) The director or a referee appointed by the director shall conduct an adjudication

hearing on a proposed permanent exclusion of a pupil.  The referee may be an attorney admitted to the practice of law in this state but

shall not be an attorney that represents the board of education that forwarded the

resolution requesting the permanent exclusion. (3) The director or referee who conducts an adjudication hearing under this section may

administer oaths, issue subpoenas to compel the attendance of witnesses and evidence,

and enforce the subpoenas by a contempt proceeding in the court of common pleas as

provided by law.  The director or referee may require the separation of witnesses and may bar from

the proceedings any person whose presence is not essential to the proceedings. (4) The director shall request the department of rehabilitation and correction, the sheriff,

the department of youth services, or any publicly funded out-of-home care entity that

has legal custody of a pupil who is the subject of an adjudication hearing held pursuant

to this section to transport the pupil to the place of the adjudication hearing at

the time and date set for the hearing.  The department, sheriff, or publicly funded out-of-home care entity that receives

the request shall provide transportation for the pupil who is the subject of the adjudication

hearing to the place of the hearing at the time and date set for the hearing.  The department, sheriff, or entity shall pay the cost of transporting the pupil

to and from the hearing. (E)(1) An adjudication hearing held pursuant to this section shall be adversary in nature,

shall be conducted fairly and impartially, and may be conducted without the formalities

of a criminal proceeding.  A pupil whose permanent exclusion is being adjudicated has the right to be represented

by counsel at the adjudication hearing.  If the pupil has the financial capacity to retain counsel, the director or the referee

is not required to provide counsel for the pupil.  At the adjudication hearing, the pupil also has the right to cross-examine witnesses

against the pupil, to testify, to present evidence and the testimony of witnesses

on the pupil's behalf, and to raise factors in mitigation of the pupil's being permanently

excluded. (2) In an adjudication hearing held pursuant to this section and section 3313.662 of the Revised Code , a representative of the school district of the board of education that adopted and

forwarded the resolution requesting the permanent exclusion of the pupil shall present

the case for permanent exclusion to the director or the referee.  The representative of the school district may be an attorney admitted to the practice

of law in this state.  At the adjudication hearing, the representative of the school district shall present

evidence in support of the requested permanent exclusion.  The director or the director's designee shall consider the entire school record

of the pupil who is the subject of the adjudication and shall consider any of the

following information that is available: (a) The academic record of the pupil and a record of any extracurricular activities in

which the pupil previously was involved; (b) The disciplinary record of the pupil and any available records of the pupil's prior

behavioral problems other than the behavioral problems contained in the disciplinary

record; (c) The social history of the pupil; (d) The pupil's response to the imposition of prior discipline and sanctions imposed

for behavioral problems; (e) Evidence regarding the seriousness of and any aggravating factors related to the

offense that is the basis of the resolution seeking permanent exclusion; (f) Any mitigating circumstances surrounding the offense that gave rise to the request

for permanent exclusion; (g) Evidence regarding the probable danger posed to the health and safety of other pupils

or of school employees by the continued presence of the pupil in a public school setting; (h) Evidence regarding the probable disruption of the teaching of any school district's

graded course of study by the continued presence of the pupil in a public school setting; (i) Evidence regarding the availability of alternative sanctions of a less serious nature

than permanent exclusion that would enable the pupil to remain in a public school

setting without posing a significant danger to the health and safety of other pupils

or of school employees and without posing a threat of the disruption of the teaching

of any district's graded course of study. (3) In any adjudication hearing conducted pursuant to this section and section 3313.662 of the Revised Code , a court order that proves the adjudication or conviction that is the basis for the

resolution of the board of education seeking permanent exclusion is sufficient evidence

to prove that the pupil committed a violation as specified in division (F)(1) of this

section. (4) The director or the referee shall make or cause to be made a record of any adjudication

hearing conducted pursuant to this section. (5) A referee who conducts an adjudication hearing pursuant to this section shall promptly

report the referee's findings in writing to the director at the conclusion of the

adjudication hearing. (F) If an adjudication hearing is conducted or a determination is made pursuant to this

section and section 3313.662 of the Revised Code , the director shall review and consider the evidence presented, the entire school

record of the pupil, and any available information described in divisions (E)(2)(a)

to (i) of this section and shall not enter an order of permanent exclusion unless

the director or the appointed referee finds, by a preponderance of the evidence, both

of the following: (1) That the pupil was convicted of or adjudicated a delinquent child for committing

a violation listed in division (A) of section 3313.662 of the Revised Code and that the violation was committed when the child was sixteen years of age or older; (2) That the pupil's continued attendance in the public school system may endanger the

health and safety of other pupils or school employees. (G)(1) Within seven days after the conclusion of an adjudication hearing that is conducted

pursuant to this section, the director shall enter an order in relation to the permanent

exclusion of the pupil who is the subject of the hearing or determination. (2) If the director or a referee makes the findings described in divisions (F)(1) and

(2) of this section, the director shall issue a written order that permanently excludes

the pupil from attending any of the public schools of this state and immediately shall

send a written notice of the order to the board of education that forwarded the resolution,

to the pupil who was the subject of the resolution, to that pupil's parent, guardian,

or custodian, and to that pupil's attorney, that includes all of the following: (a) A copy of the order of permanent exclusion; (b) A statement informing the pupil and the pupil's parent, guardian, or custodian of

the pupil's right to appeal the order of permanent exclusion pursuant to division

(H) of this section and of the possible revocation of the permanent exclusion pursuant

to division (I) of this section if a final judicial determination reverses the conviction

or adjudication that was the basis for the permanent exclusion; (c) A statement informing the pupil and the pupil's parent, guardian, or custodian of

the provisions of divisions (F) , (G) , and (H) of section 3313.662 of the Revised Code . (3) If the director or a referee does not make the findings described in divisions (F)(1)

and (2) of this section, the director shall issue a written order that rejects the

resolution of the board of education and immediately shall send written notice of

that fact to the board of education that forwarded the resolution, to the pupil who

was the subject of the proposed resolution, and to that pupil's parent, guardian,

or custodian. (H) A pupil may appeal an order of permanent exclusion made by the director pursuant

to this section and section 3313.662 of the Revised Code to the court of common pleas of the county in which the board of education that forwarded

the resolution requesting the permanent exclusion is located.  The appeal shall be conducted in accordance with Chapter 2505. of the Revised Code. (I) If a final judicial determination reverses the conviction or adjudication that is

the basis of a permanent exclusion ordered under this section, the director, upon

receipt of a certified copy of an order reflecting that final determination from the

pupil or that pupil's parent, guardian, custodian, or attorney, shall revoke the order

of permanent exclusion. (J) As used in this section: (1) “ Permanently exclude ” and “ permanent exclusion ” have the same meanings as in section 3313.662 of the Revised Code . (2) “ Out-of-home care ” and “ legal custody ” have the same meanings as in section 2151.011 of the Revised Code . (3) “ Certificate of high school equivalence ” has the same meaning as in section 4109.06 of the Revised Code .