DOE lawsuit challenges student’s suspension for bringing Nerf gun to school

A Honolulu mother claims the Hawaii Department of Education wrongly suspended her son from the eighth grade for possessing a toy gun on school grounds, then 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 achievement.

For nearly a decade, Hawaii school leaders have sought ways to lower the state’s suspension rate. Previous studies have shown that schools are more likely to suspend Native Hawaiian and Pacific Islander students than their Asian and white peers. Local advocates have called on the DOE to find alternatives to in-school suspensions, which can lead to social isolation and reduced learning.

In the 2022-23 school year, 4% of Hawaii DOE students were suspended. Unlike several other states, Hawaii does not have a limit on the number of days a student can be suspended.

Heather McVay says her son and eight of his classmates were suspended from Stevenson Middle School in early January for having 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,” McVay said in an interview.

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

Under state law, students can be expelled from school for at least a year for possessing firearms, including BB or paintball guns, on DOE campuses. Stevenson High School classified gel guns as firearms and initially suspended McVay’s son and his classmates for a year.

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

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

During the 2022–2023 school year, 26 DOE students were expelled from school for bringing firearms onto school grounds.

Because McVay’s son never used a gel gun on campus, DOE administrators later ruled the suspension was only justified for 18 days. He ultimately stayed home from early January to Feb. 1, but he fell behind on his classes during that time.

While school officials told McVay she could take on some of her son’s work during his suspension, he was unable to keep up with his peers because many assignments required him to attend classes in person or work with other students, she said. When he returned to school in February, McVay said, he failed two subjects, and teachers were unwilling to provide accommodations or time for him to finish the work he missed.

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

“He’s starting high school in the clouds,” Seitz said, adding that the student has struggled with high levels of anxiety and stress since the incident.

State law requires DOE supervisors to provide alternative instructional options if students are suspended for more than 10 days.

But the policies don’t always translate into necessary services for students, said Greta Colombi, a consultant at the American Institutes for Research. States vary in how much academic support they require schools to provide to suspended students, Colombi added.

For example, New York requires schools to provide alternative learning options throughout a student’s suspension. In 2019, California began requiring schools to provide suspended students with homework if their parents request it and the student has been absent from school for two or more days.

In 2020, Hawaii lawmakers introduced a resolution that would have asked the DOE to eliminate suspensions in elementary schools and set a maximum of 10 days for middle and high school students. The resolution failed, but DOE Deputy Director Heidi Armstrong said last summer that Hawaii schools continue to explore alternatives to suspensions.

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

The lawsuit seeks to have the disciplinary actions against McVay’s son declared unconstitutional and to clear his record. It also seeks monetary damages.

A trial date for McVay’s case has not yet been set.

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