Regular School Discipline, Suspension, Expulsion, Public School Law, Educational Laws & Policies, Dr. William Allan Kritsonis

8/14/2019 Regular School Discipline, Suspension, Expulsion, Public School Law, Educational Laws & Policies, Dr. William Allan Kritsonis

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Regular SchoolDiscipline,

Suspension, andExpulsion

William Allan Kritsonis, PhD



Regular StudentDiscipline—

Expulsion-

Suspension2



Regular Student Discipline

Every Texas school district must create afoundation for student discipline by adopting a

student code of conduct that establishes clear

standards for student behavior. The student code

of conduct will often reflect the discipline policiesand related procedures that a district has in place

to manage student behavior in class and on

school property. Discipline policies and

procedures typically include due process for

students who have violated the student code of

conduct and for students who are placed in

alternative programs outside the regular education

setting.3



Grounds for: Nondisabled

students**Removal by teacher A teacher may send a student to the principal to maintain

effective classroom discipline. (Sec. 37.002(a))

A teacher may remove a student from class after documentingrepeated interference with the teacher’s ability to

communicate with the class OR if the student engages in

behavior so unruly, disruptive, or abusive that it seriously

interferes with instruction. (Sec. 37.002(b))

Following removal, the principal may place the student in a

disciplinary alternative education program (DAEP), in-school

suspension, or another teacher’s class.

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students**Removal by teacher cont…

A teacher must remove from class and send to theprincipal any student who engages in conduct forwhich the student must be placed in a DAEP or forwhich the student may or must be expelled. (Sec.

37.002(d); see also Secs. 37.006 and 37.007)

A conference must be held within three class daysof the removal, during which time the student may

not be returned to the regular classroom.

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students**Removal by teacher cont…

A removed student cannot be returned to the

teacher’s classroom over the teacher’s

objection unless the Placement Review

Committee finds that the placement is the best

or the only alternative. If the teacher removed

the student from class because the student has

engaged in an offense of assault causing

bodily injury against the teacher, the student

may not be returned to the teacher’s classwithout the teacher’s consent. The teacher may

not be coerced to consent. (Sec. 37.002(c) and

37.002(d)).

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Suspension

A student may be suspended for engaging in

any conduct that could place the student in a

DAEP.Additional grounds for suspension may be developed

by the district and must be defined in the district’s

Student Code of Conduct.

A student may be suspended for up to threedays at a time

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Removal to Disciplinary Alternative

Education Program

A school district must place in a DAEP any student who engages inthe following conduct that occurs on or within 300 feet of schoolproperty or while the student is attending a school-sponsored orschool-related activity on or off school property:

Conduct punishable as a felony; Offense constituting terroristic threat, assault that causes injury, or

false alarm or report;

Transfers/possesses/uses or is under the influence of marijuana,controlled substances, or dangerous drugs;

Transfers/possesses/uses or commits a serious offense while under the influence of alcohol;

Conduct containing the elements of abuse of volatile chemicals;

Conduct containing the elements of public lewdness or indecentexposure.

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Education Program Cont… A student must be placed in a DAEP if, while off campus and not in

attendance at a school-sponsored or school-related activity, thestudent receives deferred prosecution for offenses listed in Title 5 of the Texas Penal Code, i.e., violent offenses against the person; a courtor jury finds that the student has engaged in delinquent conduct orconduct prohibited in Title 5; or the superintendent has a reasonablebelief that the student engaged in conduct defined as a Title 5 felonyoffense.

A student who is required to register as a sex offender must be placedin a DAEP or JJAEP for at least one semester.

A student must be placed in a DAEP for engaging, whether or not on

school property or at a school event, in conduct constitutingretaliation, i.e., harming or threatening to harm by an unlawful act aschool employee on account of the employee’s job-related duties.

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Education Program Cont…

A student may be placed in a DAEP if the student, while off campusand not in attendance at a school-sponsored or school-relatedactivity:

Has engaged in (nonviolent) conduct defined as a felony offense OTHER than those defined under Title 5, Texas Penal Code (violent conduct), and

the superintendent has a reasonable belief that the student has engaged insuch conduct; and

The continued presence of the student in the regular classroom threatens thesafety of other students or teachers or will be detrimental to the educational

process.

The board of trustees of a school district, or the board’s designee,after an opportunity for a hearing may elect to place a student in aDAEP if the student:

Receives deferred prosecution for conduct defined as a felony;

Engages in delinquent conduct defined as a felony; or

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Education Program Cont… If the board or the board’s designee determines that the student’s presence in

the regular classroom: Threatens the safety of other students or teachers; Will be detrimental to the educational process or is not in the best interests of

the district’s students.

When a student is removed to a DAEP, a conference is required within threedays of removal. The school board or its designee must review a student’sstatus, including academic status, at least every 120 days. For high schoolstudents, progress toward graduation requirements must be reviewed and aspecific plan developed.

An elementary school student may not be placed in a DAEP withnonelementary school students.

Students younger than age 6 may not be removed to a DAEP, unless they bringa firearm to school.

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Expulsion or Removal to DAEP, JJAEP

A student may be expelled or placed in a DAEP or JJAEP if thestudent has received deferred prosecution for conduct defined as afelony offense in Title 5 of the Texas Penal Code; has been found by a court or jury to have engaged in delinquent conduct or conductdefined as a felony offense in Title 5 of the Texas Penal Code; is

charged with engaging in conduct defined as a felony offense inTitle 5 of the Texas Penal Code; has been referred to a juvenilecourt for allegedly engaging in delinquent conduct or conductdefined as a felony offense in Title 5 of the Texas Penal Code; hasreceived probation or deferred adjudication for a felony offenseunder Title 5 of the Texas Penal Code; has been convicted of a

felony offense under Title 5 of the Texas Penal Code; or has beenarrested for or charged with a felony offense under Title 5 of theTexas Penal Code. (NOTE: Certain instances described here requiremandatory removal to DAEP.)

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Expulsion

A student must be expelled for committing any of the

following serious offenses while on school property or while

attending a school-sponsored or school-related activity:

Uses, exhibits, or possesses a firearm, illegal knife, club, or other

prohibited weapon; or

Commits the elements of any of the following offenses: aggravated

assault, sexual assault, aggravated sexual assault, arson, murder,

indecency with a child, aggravated kidnapping, aggravated robbery,

manslaughter, criminally negligent homicide, or drug- or alcohol-related offenses punishable as a felony.

A student must be expelled for committing any of the above

offenses in retaliation against a school employee on or off

school property. 13



Expulsion cont…

A student may be expelled if, while on or within 300 feet of schoolproperty or while attending a school-sponsored or school-relatedevent, the student: Sells/gives/delivers/possesses or is under the influence of marijuana, controlled

substances, dangerous drugs, or alcoholic beverages; or

Engages in conduct containing the elements of offenses related to abuse of volatile chemicals; or

Engages in serious or persistent misbehavior occurring while placed in a DAEP;or

Assaults and causes injury to an employee or volunteer, including in retaliationfor the employee’s or volunteer’s duties in the district or commits a terroristicthreat against a teacher; or

Engages in conduct containing the elements of deadly conduct; or Uses, exhibits, or possesses a firearm, illegal knife, club, or other prohibited

weapon; or Engages in conduct containing the elements of aggravated assault, sexual

assault, aggravated sexual assault, arson, murder, indecency with a child,aggravated kidnapping, aggravated robbery, manslaughter, criminally negligent

homicide, or drug- or alcohol-related offenses punishable as a felony. 14



Expulsion cont…

A student may be expelled from school by thedistrict in which the student attends school if thestudent while on school property of another districtin this state or while attending a school-sponsored

or school-related activity of a school in another district in this state: Uses, exhibits, or possesses a firearm, illegal knife, club, or other

prohibited weapon; or

Engages in conduct containing the elements of aggravated

assault, sexual assault, aggravated sexual assault, arson, murder,indecency with a child, aggravated kidnapping, aggravatedrobbery, manslaughter, criminally negligent homicide, or drug- or alcohol-related offenses punishable as a felony.

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Expulsion cont…

A student may be expelled if the student:

Engages in conduct containing the elements of felonious

criminal mischief; or

Engages in school-related conduct involving false report or

alarm, or terroristic threat.

Students under age 10 cannot be expelled, although they can

be sent to DAEPs.

A teacher must be informed by the district if one of the

teacher’s students has committed any of the above offenses.

(NOTE: A teacher must keep this information confidential,

or risk certificate sanctions.)

A student must be given a hearing before expulsion occurs.16



Emergency removal

• A principal (or designee) may order the immediate removalof a student to a DAEP or may order expulsion if the student’s

behavior is such that it seriously interferes with the teacher’sability to communicate with the class or with the operation of

the school, or if action is necessary to prevent harm to personsor property.

• The student shall receive oral notice of the reason for theaction at the time of the emergency placement. A proper due

process hearing must occur within a reasonable time after the placement or expulsion.

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One court case related to School Discipline-Suspension and Expulsionwould be Nevares v. San Marcos C.I.S.D. In this case, given by “TheEducator’s Guide to Texas School Law”, it states that Timothy Nevares wasamong the first students assigned t o DAEP after the adoption of the“mandatory placement” provisions in Chapter 37. Nevares was placed in

DAEP based on off-campus conduct. His suit against the San Marcos C.I.S.D.was followed closely by educators in Texas, since it was the first major courtchallenged to some of the more controversial aspects of Chapter 37. ThoughNevares had some success at district level, he struck out before the FifthCircuit. Nevares had complained of a lack of due process, alleging that theschool had tossed him into an inferior program without a proper hearing. But

the Fifth Circuit ruled that no process was due, because the student was notdeprived of property or liberty. “Timothy Nevares was not denied access topublic education, not even temporarily. He was only transferred from oneschool program to another with stricter discipline” Since no deprivationoccurred, no process of any kind was due. In other words, as far as federal lawis concerned, students assigned to DAEP are not entitled to any kind of hearing, not even an informal type hearing. This would appear to close the

door to suits alleging a violation of federal due process based on DAEPassignments.

Nevares v. San MarcosC.I.S.D.



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Also stated in The Educator’s Guide to Texas School Law,is another court case that relates to School Discipline-Suspension and Expulsion was Aledo I.S.D. v. Reese, in thiscase, a student was placed in a DAEP due to possession of ashotgun in his truck on the school parking lot after aweekend hunting trip. The student filed suit, and a statedistrict judge issued an injunction, ordering the school toreadmit the student to the regular school program. The court

of appeals read TEC 37.0009(b) (“Any decision of the boardor the board’s designee under this subsection is final andmay not be appealed”) and declared that it means what itsays--- DAEP orders may not be appealed beyond the schoolboard. Therefore, the state district judge should not haveeven heard the case. The injunction was issued erroneously

and was void. A second court of appeals reached exactly thesame conclusion in Hankins v. P.H., as next friend of P.J.H.

Aledo I.S.D. v. Reese



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One last case dealing with school disciplinesuspension and expulsion is the Goss case. In thiscase the procedures that must accompany expulsionare more extensive than those involved in suspensionor removal to a disciplinary alternative educationprogram. Since the student’s “property right” to apublic education is being taken, The FourteenthAmendment requires that the student be afforded an

appropriate level of due process. In the Goss case theCourts emphasized the informality of what was beingrequired—“less than a fair minded school principalwould impose upon himself in order to avoid unfairsuspension”.

Goss Case



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RESOURCES

Walsh, J., Kemere, F., & Maniotis, L. (2005). The Educator’s Guide to Texas School Law. Austin: University of Texas Press.

Goldstein, B. (2001). Chapter 37: The basic for student discipline in Texas public school law. [On-line]. Available: www.blgpclaw.com

Idea Publications Series. (2003) Suspension and expulsion at a glance.[On-line]. Available: www.idea.gaseis.ucla.edu

Education Law School. (2008). Law school suspension and expulsion.[One-line]. Available: www.madufflaw.com

Especially for Parents. (2005). State suspension/expulsion laws. [On-line] Available: www.aaps.k12mi.us/aaps.forparents Student Discipline in Governement School. (2006). Suspension and

Expulsion of School Procedures. [On-line]. Available:www.det.nsw.edu

Texas Teacher Law. (2007). Student discipline or free speechinfringement? [On line] www teacherlaw blogspot com

http://www.blgpclaw.com/

http://www.idea.gaseis.ucla.edu/

http://www.madufflaw.com/

http://www.aaps.k12mi.us/aaps.forparents

http://www.det.nsw.edu/

http://www.det.nsw.edu/

http://www.aaps.k12mi.us/aaps.forparents

http://www.madufflaw.com/

http://www.idea.gaseis.ucla.edu/

http://www.blgpclaw.com/

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Regular School Discipline, Suspension, Expulsion, Public School Law, Educational Laws & Policies, Dr. William Allan Kritsonis