This document outlines the student discipline policies in Texas regarding suspension and expulsion, emphasizing the necessity for each school district to adopt a student code of conduct. It details the procedures for teacher-initiated removals and the grounds for disciplinary alternative education placements, along with stipulations for expulsion of students engaged in serious offenses. It also references notable court cases related to school discipline and the due process rights of students.

1. Regular School Discipline, Suspension, and Expulsion William Allan Kritsonis, PhD

2. Regular Student Discipline— Expulsion-Suspension

3. Regular Student Discipline Every Texas school district must create a foundation 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 policies and 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.

4. 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 documenting repeated 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.

5. Grounds for: Nondisabled students**Removal by teacher cont… A teacher must remove from class and send to the principal any student who engages in conduct for which the student must be placed in a DAEP or for which 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 days of the removal, during which time the student may not be returned to the regular classroom.

6. Grounds for: Nondisabled 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 class without the teacher’s consent. The teacher may not be coerced to consent. (Sec. 37.002(c) and 37.002(d)).

7. 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 three days at a time

8. Removal to Disciplinary Alternative Education Program A school district must place in a DAEP any student who engages in the following conduct that occurs on or within 300 feet of school property or while the student is attending a school-sponsored or school-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 indecent exposure.

9. Removal to Disciplinary Alternative 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, the student receives deferred prosecution for offenses listed in Title 5 of the Texas Penal Code, i.e., violent offenses against the person; a court or jury finds that the student has engaged in delinquent conduct or conduct prohibited in Title 5; or the superintendent has a reasonable belief that the student engaged in conduct defined as a Title 5 felony offense. A student who is required to register as a sex offender must be placed in 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 constituting retaliation, i.e., harming or threatening to harm by an unlawful act a school employee on account of the employee’s job-related duties.

10. Removal to Disciplinary Alternative Education Program Cont… A student may be placed in a DAEP if the student, while off campus and not in attendance at a school-sponsored or school-related activity: 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 in such conduct; and The continued presence of the student in the regular classroom threatens the safety 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 a DAEP if the student: Receives deferred prosecution for conduct defined as a felony; Engages in delinquent conduct defined as a felony; or

11. Removal to Disciplinary Alternative 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 three days of removal. The school board or its designee must review a student’s status, including academic status, at least every 120 days. For high school students, progress toward graduation requirements must be reviewed and a specific plan developed. An elementary school student may not be placed in a DAEP with nonelementary school students. Students younger than age 6 may not be removed to a DAEP, unless they bring a firearm to school.

12. Expulsion or Removal to DAEP, JJAEP A student may be expelled or placed in a DAEP or JJAEP if the student has received deferred prosecution for conduct defined as a felony offense in Title 5 of the Texas Penal Code; has been found by a court or jury to have engaged in delinquent conduct or conduct defined as a felony offense in Title 5 of the Texas Penal Code; is charged with engaging in conduct defined as a felony offense in Title 5 of the Texas Penal Code; has been referred to a juvenile court for allegedly engaging in delinquent conduct or conduct defined as a felony offense in Title 5 of the Texas Penal Code; has received probation or deferred adjudication for a felony offense under Title 5 of the Texas Penal Code; has been convicted of a felony offense under Title 5 of the Texas Penal Code; or has been arrested for or charged with a felony offense under Title 5 of the Texas Penal Code. (NOTE: Certain instances described here require mandatory removal to DAEP.)

13. 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.

14. Expulsion cont… A student may be expelled if, while on or within 300 feet of school property or while attending a school-sponsored or school-related event, 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 retaliation for the employee’s or volunteer’s duties in the district or commits a terroristic threat 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.

15. Expulsion cont … A student may be expelled from school by the district in which the student attends school if the student while on school property of another district in 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, aggravated robbery, manslaughter, criminally negligent homicide, or drug- or alcohol-related offenses punishable as a felony.

16. 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.

17. Emergency removal • A principal (or designee) may order the immediate removal of a student to a DAEP or may order expulsion if the student’s behavior is such that it seriously interferes with the teacher’s ability to communicate with the class or with the operation of the school, or if action is necessary to prevent harm to persons or property. • The student shall receive oral notice of the reason for the action at the time of the emergency placement. A proper due process hearing must occur within a reasonable time after the placement or expulsion.

18. One court case related to School Discipline-Suspension and Expulsion would be Nevares v. San Marcos C.I.S.D. In this case, given by “The Educator’s Guide to Texas School Law”, it states that Timothy Nevares was among 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 court challenged to some of the more controversial aspects of Chapter 37. Though Nevares had some success at district level, he struck out before the Fifth Circuit. Nevares had complained of a lack of due process, alleging that the school 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 not deprived of property or liberty. “Timothy Nevares was not denied access to public education, not even temporarily. He was only transferred from one school program to another with stricter discipline” Since no deprivation occurred, no process of any kind was due. In other words, as far as federal law is 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 DAEP assignments. Nevares v. San Marcos C.I.S.D.

19. 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 this case, a student was placed in a DAEP due to possession of a shotgun in his truck on the school parking lot after a weekend hunting trip. The student filed suit, and a state district judge issued an injunction, ordering the school to readmit the student to the regular school program. The court of appeals read TEC 37.0009(b) ( “ Any decision of the board or the board ’ s designee under this subsection is final and may not be appealed ” ) and declared that it means what it says--- DAEP orders may not be appealed beyond the school board. Therefore, the state district judge should not have even heard the case. The injunction was issued erroneously and was void. A second court of appeals reached exactly the same conclusion in Hankins v. P.H., as next friend of P.J.H. Aledo I.S.D . v. Reese

20. One last case dealing with school discipline suspension and expulsion is the Goss case. In this case the procedures that must accompany expulsion are more extensive than those involved in suspension or removal to a disciplinary alternative education program. Since the student ’ s “ property right ” to a public education is being taken, The Fourteenth Amendment requires that the student be afforded an appropriate level of due process. In the Goss case the Courts emphasized the informality of what was being required —“ less than a fair minded school principal would impose upon himself in order to avoid unfair suspension ” . Goss Case

21. 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 speech infringement? [On-line]. www.teacherlaw.blogspot.com