William Allan Kritsonis, PhD

Generally, courts defer to educators on the interpretation and application rules. In 1982 the U.S. Supreme Court in Board of Education of Rogers., Arkansas v. McCluskey dealt with a case in which a local school board had expelled a student for drinking.

The Court noted that alcohol can be classified as a drug and concluded that “the District Court and the Court of Appeals plainly erred in replacing the Board’s construction of [the rule] with their own notions under the facts of the case.” The message was clear-local school boards can interpret their own rules and courts must defer to those interpretations, within reason.

People are more likely to follow rules are rationally related to securing a safe and orderly environment.

Most discipline experts agree that the fewer the rules, the better the understanding of what behavior is appropriate and what is not.

Keep rules short yet comprehensive, by including several diverse examples to illustrate meaning.

Transpose the wording of complex terminology into terms understandable to students.

Have students help in rewording or constructing rules.

The rules are explained carefully at the start of each school term and periodically thereafter, as for example when a rash of misbehavior breaks out.

Rules that pertain to constitutionally or statutorily protected behavior, particularly free speech and press, must be drawn with special care so as not to “chill” the exercise of these rights.

The New Caney I.S.D. was unsuccessful in applying its anti-gang rule to bar students from wearing rosary beads on campus (Chalifoux v. New Caney I.S.D.).

The Third Circuit struck down a school district’s anti-harassment policy in Saxe v. State College Area School District (2001). The policy was designed to protect students and staff from harassment based on race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics.

Educators must walk a fine line in adopting rules that infringe in any way on expressive activities.

In Ryan G v. Navasota I.S.D., student was found to be a “minor in possession of alcohol” away from school during spring break. In accordance with the handbook, the school suspended the student from the baseball team. The parents appealed this decision to the commissioner, but the commissioner found the rule to be proper.

If a student uses his own computer at home on his own time and creates a Web site or posts messages that school officials find offensive, this alone does not give the school authority to impose discipline.

Unless rules are enforced, they lose their influence as behavior guides. This does not mean a “zero tolerance” policy is the only way to go.

Students should be treated fairly and equitably. Discipline should be based on careful assessment of the circumstances of each case.

Factors to consider shall include:a) The seriousness of the offense;b) The student’s age;c) The frequency of misconduct;d) The student’s attitude;e) The potential effect of the misconduct on the

school environment;f) Requirements of Chapter 37 of the Education

Code; and g) The Student Code of Conduct adopted by the

Board.

Required where government decision may cause the deprivation of an interest protected by the Fourteenth AmendmentProtected interests related to

student disciplineProperty interest –continuing to

attend a public institutionLiberty interest –reputation

Full blown adversarial hearing NOT required

Minimum requirements Oral or written notice of charges Explanation of evidence supporting charges Opportunity to present their side of charges

Goss v. Lopez, 419 U.S. 565 (1975)

Courts expanded requirements… Written statement of charges Hearing before individuals with

authorization to determine sanction Opportunity for advance inspection of

evidence University intends to submit Right to bring counsel to hearing to

advise –not to question witnesses Opportunity to present own version of

facts through witnesses or documents

Right to hear evidence against them and question (personally, not through legal counsel) adverse witnesses

Determination of facts of the case by hearing officer based solely on evidence presented at hearing

Written statement of hearing officer’s findings of fact Right, at own expense, to make recording of hearing

Esteban v. Central Missouri State College, 277 F. Supp 649 (W.D. Mo. 1967)

Student discipline in Texas is covered in Chapter 37 of the Texas Education Code, which was enacted in 1995 as part of Senate Bill I. Most of the key players in the adoption of Senate Bill I, from Governor Bush.

The legislature has not made it easier for schools to expel students. Instead, students who commit offenses will be placed in a disciplinary alternative education program.

Great emphasis is on “DAEPs”-disciplinary alternative education programs.

The interplay between schools and the juvenile justice system.

TEC 37.00 I (a) requires each district to adopt a student code of conduct that will specify standards for student conduct outline the types of behavior that might get a student in trouble at school.

Most schools discharge the responsibility by distributing a “student handbook” containing all the rules and regulations of the school, including those pertaining to discipline.

Discretionary teacher removal is authorized for a student:

1. Who has been documented by the teacher to repeatedly interfere with the teacher’s ability to communicate effectively with the students in the class or with the ability of the student’s classmates to learn; or

2. Whose behavior the teacher determines is so unruly, disruptive, or abusive that it seriously interferes with the teacher’s ability to communicate effectively with the student in the class or with the ability of the student’s classmates to learn.

The Education Code contains just one short section dealing with suspension. It states that a student may be suspended from school if the student engages in conduct identified in the student code of conduct for which a student may be suspended.

Suspension is designed as short-term disciplinary action. Under TEC 37.00 (b), suspension is limited to three days per offense.

At School: Section 37.006 lists offenses for which a student must be assigned a DAEP. They are:

1. Any conduct punishable as a felony2. An assault resulting in bodily injury3. A terroristic threat or false alarm or report4. Certain drug offenses5. Certain alcohol offenses6. Inhalant offenses7. Public lewdness8. Indecent exposure

Off Campus Conduct:1. The first involves the commission of a felony

offense under Title 5 of the Texas Penal Code. 2. The second type of off-campus conduct that

requires DAEP removal is engaging in conduct that contains the elements of the offense of retaliation against any school employee, under Penal Code 36.06.

3. In addition to mandatory DAEP offenses, there are offenses for which a student may be placed in DAEP.

4. State law does not tell us how long a DAEP placement is to last, but it does require the code of conduct to establish guidelines for the length of placement.

Expulsion is the hardest penalty the school can impose, and thus is reserved only for the most serious offenses and is available only with students who are at least ten years old.

Grounds: 1. Possession of a weapon2. Assaultive offenses3. Arson4. Murder5. Indecency with a child6. Aggravated kidnapping7. Drug or alcohol offenses if punishable as a

felony8. Retaliatory commission of an expellable offense

against a school employee

The effect of this provisions is to eliminate expulsion in the large counties. Students who are expelled due to commission of a mandatory expulsion offense likely will be required to attend the JJAEP.

The Education Code does not tell us how much process is due prior to an expulsion. Instead, it merely invokes federal constitutional standards.

State law specifies that the appeal of a student expulsion is to be heard by the district court by “ trial de novo,” meaning, essentially, a new trial.

School officials encounter emergencies daily. Texas law recognizes that there are occasions when a student must be removed form the school due to an emergency.

Emergency removal to a DAEP is also available whenever the principal or designee “reasonably believes the student’s behavior is so unruly, disruptive, or abusive that it seriously interferes with a teacher’s ability to communicate effectively with the students in a class, with the ability of the student’s classmates to learn, or with the operation of the school or a school-sponsored activity.

Neither emergency placement nor emergency expulsion under 37.019 has a definite time limit.

School districts must notify the juvenile board when students commits an offense that requires placement in DAEP or expulsion.

A Juvenile Justice AEP (JJAEP) is required in any country with a population in excess of 125,000. Smaller counties may develop a JJAEP but are not required to do so.

The law now prohibits a judge from placing an expelled student back in any school program, including a school-operated DAEP, unless the juvenile board and the school board have entered into a memorandum of understanding concerning the juvenile probation department’s role in supervising and providing other support services for students in AEP’s (TEX 37.010(c)).

State law does not address those strategies to be used for routine student discipline. This is a matter largely left to the local school district, its administrators, and its teachers.

Traditionally teachers and administrators have exercised authority over students on the basis of the common law doctrine of in loco parentis, “in place of a parent.”

While no hearing is required legally when using routine disciplinary techniques, it seems wise to inform the student of the infraction and give the student a chance to explain.

There have been efforts to eliminate corporal punishment by judicial decree, but they have not been successful.

The Fifth Circuit followed up on its Cunningham v. Beavers ruling by issuing a similar decisions involving the paddling of a sixth grade special education student by the school’s principal.

While Texas leaves all decisions about corporal punishment to local officials, it does impose statewide restrictions on other practices of a physical nature. Section 37.002I of the TEC absolutely prohibits the use of “seclusion” by public schools.

Early cases indicated that at least some sort of minimal due process was required. In Ector County I.S.D. v. Hopkins (1974) a Texas court of appeals ruled that a student was entitled to notice and a hearing before permanent expulsion form the National Honor Society and the Permian Pepettes.

Student involvement with extracurricular activity is further affected by the student’s status in school. TEC 37.006(g) requires that students who are removed to a DAEP also must be removed from participation in or attendance at extracurricular activities.