Lawsuit against DOE challenges suspension of student for bringing Nerf gun to school

A Honolulu mother claims the Hawaii Department of Education wrongfully suspended her son from eighth grade for possessing a toy gun on school property and failed to provide him with academic support after he missed a month of classes at Stevenson Middle School, according to a lawsuit filed Monday.

The case reflects long-standing concerns that suspensions have long-term consequences for students’ behavior and academic performance.

For nearly a decade, Hawaii school leaders have been looking for ways to reduce the state’s suspension rate. Previous studies have found that schools are more likely to suspend Native Hawaiian and Pacific Islander students than their Asian American and white peers. Local stakeholders have called on the DOE to find alternative options to school suspensions, which can lead to social isolation and reduced learning time.

During the 2022-23 school year, 4% of Hawaii DOE students were suspended. Unlike several other states, Hawaii has no cap on the number of days a student can be suspended.

Heather McVay says her son and his eight classmates were suspended from Stevenson Middle School in early January for carrying gel guns on campus the day before winter break. Her son received the “Nerf Gun” as a Christmas gift from a friend, McVay said, but he didn’t open the gift until he left campus.

“There was no threat whatsoever,” McVay said in an interview.

DOE spokeswoman Nanea Kalani said the department would not comment on pending litigation.

Under state law, students can be expelled for at least a year if they possess firearms, including BB or paintball guns, on DOE campuses. Stevenson Middle School considered the gel guns to be firearms and initially suspended McVay’s son and his classmates for a year.

“Gel guns typically fire 7-8mm hydrated gel polymer balls at high velocity and range,” Stevenson Principal Laurie Luczak said in a letter to families in January. “Although they are marketed as toys, the firing of the projectiles is similar to paintball guns and can cause serious eye injuries.”

In the letter, Luczak added that one of the students who received the toy gun in December hit another student with the gel capsule after school.

During the 2022-23 school year, 26 DOE students were dismissed for bringing a firearm to campus.

Because McVay’s son never used his gel gun on campus, DOE administrators later decided his suspension was only worth 18 days. He ultimately stayed home from early January to February 1, but fell behind in classes during that time.

Although administrators told McVay she was able to catch up on some of her son’s work during his suspension, it was impossible for him to keep up with his peers because many of the assignments required him to attend class in person or work with other students, she said. When he returned to school in February, McVay added, he failed two of his courses, and teachers were unwilling to provide him with additional support or time to catch up on the missed work.

Eric Seitz, McVay’s attorney, said the student began eighth grade with all A’s but finished the year with mostly B’s and C’s.

“He is starting his high school years under a bad star,” Seitz said, adding that the student has struggled with severe anxiety and stress since the incident.

The law requires DOE complex area administrators to provide alternative instructional options when students are suspended for more than 10 days.

But the measures don’t always result in the services students need, says Greta Colombi, a consultant with the American Institutes for Research. States vary in how much academic support they require from schools, Colombi adds.

For example, New York State requires schools to offer alternative forms of instruction for the entire duration of the suspension. Since 2019, schools in California have been required to give suspended students homework if their parents have requested it and they have been absent from school for two or more days.

In 2020, Hawaii lawmakers introduced a resolution that would have called on the DOE to eliminate suspensions in elementary schools and set a maximum of 10 suspensions for middle and high school students. The resolution failed, but DOE Assistant Superintendent Heidi Armstrong said last summer that Hawaii schools continue to look for alternatives to suspension.

The number of suspensions in the department fell by nearly 1,000 from 2013 to 2023.

The lawsuit seeks to declare the disciplinary measures against McVay’s son unconstitutional and to expunge his record. It also seeks damages.

A hearing date for McVay’s case has not yet been scheduled.

Civil Beat’s education reporting is supported by a gift from the Chamberlin Family Philanthropy.