This document discusses student discipline policies regarding suspension and expulsion. It outlines that suspension is a short-term disciplinary action limited to 3 days, while expulsion is reserved for only the most serious offenses and requires appropriate due process. The document details offenses that require expulsion and notes schools have discretion over other serious offenses. It also discusses due process requirements for long-term expulsion hearings and the limits of a student's right to cross-examine witnesses.

1. Student Discipline
William Allan Kritsonis, PhD

2. Suspension v. Expulsion
 TEC 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—the local school district is authorized to
decide what types of offenses should call for a
suspension.
 Suspension is designed as a short-term disciplinary
action. Under TEC 37.005 suspension is limited to three
days per offense, but there is no limit on the number of
suspensions that might be imposed on a student,
provided that each is for a separate incident of
misconduct. This applies only to out-of-school
suspension, not in-school suspension.

3. Suspension v. Expulsion
 Expulsion is the harshest penalty the school can impose, and
thus is reserved for only the most serious offenses and is
available only with students who are at least 10 years old.
 TEC 37.007 spells out several types of conduct that require
expulsion from school. They are: (1) possession of weapons
 (2) assaultive offenses
 (3) arson
 (4) murder, capital murder, criminal attempt to commit murder or
capital murder
 (5) indecency with a child
 (6) aggravated kidnapping
 (7) drug or alcohol offenses if punishable as a felony
 (8) retaliatory commission of an expellable offense against a school
employee.
 The first 7 must occur on school property or school-related
function, but retaliation is expellable no matter where it took
place.

4. Suspension v. Expulsion
• A district has discretion over the following offenses:
 (1) serious or persistent misconduct while placed
in a DAEP
 (2) drug or alcohol offenses, if not punishable as a
felony
 (3) inhalant offenses
 (4) criminal mischief if punishable as a felony.
 Most students will be expelled from the school programs
(including DAEP) to a Juvenile Justice AEP (JJAEP) or
other school program.
 Because a student’s “property right” to a public
education is being taken, the 14th amendment requires
that the student be afforded an appropriate level of due
process, although the Education Code does not tell us
how much process is due.

5. Suspension v. Expulsion
 37.009 provides
 “Before a student may be expelled under Section
37.007, the board or the board’s designee must provide
the student a hearing at which the student is afforded
appropriate due process as required by the federal
constitution and which the student’s parent or guardian is
invited in writing to attend.”
 State law imposes two other requirements
 (1) the student is entitled to be represented at an expulsion hearing
by some adult who can give guidance to the student; this person is
usually the parent or guardian, but can be someone else, as long as
it is not a district employee
 (2) if an expulsion is ordered by the board’s designee, then it is
appealable to the board, and then to the district court of the county
in which the school district’s administrative office is located.

6. Suspension v. Expulsion
 School districts can rely on student or staff witnesses,
and even read their written witness statements at an
expulsion hearing, without a right to cross-examine by
the accused student.
 Courts have decided that such prerecorded statements
(considered hear-say in court) are admissible in student
discipline matters.
 The minimum due process requirements for a long-term
expulsion consist of:
 (1) oral and written notice of the charges against the student
 (2) an explanation of the evidence
 (3) an opportunity for the student to present his side of the story.

7. Suspension v. Expulsion
 Reasons for denying the right to cross examine include:
 (1) the fact that the administrators who investigate the offenses are
qualified to determine the truthfulness of student accusers
 (2) the fact that, if forced to testify, any students would fail to come
forward
 (3) reasons associated with administrative convenience.
 The best policy to follow when students are caught in the
act of breaking a school rule and admit guilt is to give
them notice of the rule violation and an opportunity in the
presence of their parents or a representative to confirm
their admission of guilt in writing and to waive formal due
process rights.

8. Suspension v. Expulsion
 37.009 provides
 “Before a student may be expelled under Section
37.007, the board or the board’s designee must provide
the student a hearing at which the student is afforded
appropriate due process as required by the federal
constitution and which the student’s parent or guardian is
invited in writing to attend.”
 State law imposes two other requirements
 (1) the student is entitled to be represented at an expulsion hearing
by some adult who can give guidance to the student; this person is
usually the parent or guardian, but can be someone else, as long as
it is not a district employee
 (2) if an expulsion is ordered by the board’s designee, then it is
appealable to the board, and then to the district court of the county
in which the school district’s administrative office is located.

9. Off-Campus Rules
 Schools retain the same authority over students at school-sponsored
activities occurring off campus as they have when students are on campus.
 According to TEC 37
 students must be removed to a DAEP if they engage in conduct that
would be felonious under certain sections of the Texas Penal Code.
 One factor that comes into play with regard to off-campus behavior is
the nature of the disciplinary punishment.
 If the proposed sanction is a suspension from extracurricular
activities, rather than a suspension from school, the courts are much
more likely to support the school district’s position. The courts have
consistently ruled that participation in athletics and other
extracurricular activities is a “privilege” rather than a “right.”
Therefore, where these activities are concerned, schools have more
authority to create and enforce rules, even those that apply off
campus.
 A second key factor with regard to off-campus activity is whether or not
the school has some legitimate interest at stake; examples include the
use of the internet.
 If the student’s activity moves beyond “offensive” to “threatening”
the school can assert its interest in maintaining safety by taking
disciplinary action.

10. Off-Campus Rules
 Killion v. Franklin Regional School District (2001)
 a student composed a top 10 list listing the personal and
professional failings of the school’s AD at his home and he
emailed it to others who printed and distributed it at school.
The school suspended the student and removed him from
the track team, but at regional court the case was overturned
and the court held that the school had failed to show that the
student’s actions were materially disruptive to the education
process.
 JS, a Minor v. Bethlehem Area School District
 A student created a website against his algebra teacher that
was threatening; the court decided that the conduct was
materially disruptive and a substantial invasion of the rights
of others and the student’s expulsion was upheld.

11. Due Process
 Notice/hearing
 There are 3 key concepts necessary to an
understanding of the due process clauses in our
Constitution:
 (1) There must be some action of the state—generally
speaking, actions by private entities do not implicate the due
process clause
 (2) the state must have deprived the individual of “life, liberty,
or property” –a person who sues over a violation of due
process must assert a “property interest” or “liberty interest”
 (3) the nature of the process due depends on the severity of
the deprivation.

12. Due Process
 In the case Dixon v. Alabama State Board of
Education, the court held that students at a public
college are entitled to fair notice of the rules they were
charged with breaking and a fair hearing before they
could be expelled and the court also established
what it considered to be the components of fair notice
and a fair hearing:
 (1) the notice should contain a statement of the specific
charges and the grounds that, if proven, would justify
expulsion
 (2) students should be given an opportunity to present to the
board of trustees or administrative officials of the college
their own defense against the charges, including the right to
call witnesses on their behalf
 (3) students should be apprised of the results and findings of
the hearing in a report open to their inspection.

13. Due Process
 Goss v. Lopez deals with due process in public
schools.
 In Meyer v. Austin (1999), the court emphasized
that due process must be provided to the
student, not the parents.
 The greater the loss suffered by the student, the
more sympathetic courts are likely to be to
claims of lack of due process and the courts do
not appear very sympathetic to disputes over a
students grades.

14. Goss v. Lopez
In Ohio, 9 students were given a 10-day suspension from school and
the school principal did not hold hearings for the affected students
before ordering the suspensions.
The US Supreme Court concluded that due process is required before
a student can be suspended from school. Since the “deprivation of
property” imposed by the state is less harsh in a case of short-term
suspension, the “process” that is “due” is much less burdensome.
In this case, the Court concluded that, because the state provides
compulsory schooling, even a short-term suspension deprives the
student of a property right and, thus, requires due process. In cases
of suspensions of 10 days or less, the Court ruled that due process
requires school officials to give the student informal notice of the
misbehavior and an opportunity to offer an explanation.

15. Corporal Punishment
 Corporal punishment continues to be legal in Texas and also
continues to be one of the few areas where local control truly
exists.
 There is no state law regarding corporal punishment, therefore the
decisions are left to local school officials.
 In Ingraham v. Wright, the Court ruled that corporal punishment
of public school students
 (1) did not require any formal due process measures, such as notice
and a hearing
 (2) under no circumstances could be considered “cruel and unusual
punishment” as that term is used in the Eighth Amendment.
 TEC 37.0021 absolutely prohibits the use of “seclusion” by
public schools.
 Seclusion is defined as a technique in which a student is confined in
a locked box, locked closet, or locked room that is designed solely
to seclude a person and whose area is less than 50 square feet.