student discipline/legal issues, william allan kritsonis, phd

8/8/2019 Student Discipline/Legal Issues, William Allan Kritsonis, PhD

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Student DisciplineStudent Discipline

William Allan Kritsonis, PhDWilliam Allan Kritsonis, PhD



Suspension v. ExpulsionSuspension v. Expulsion

TEC states that a student may be suspended from schoolTEC states that a student may be suspended from schoolif the student engages in conduct identified in theif the student engages in conduct identified in thestudent code of conduct for which a student may bestudent code of conduct for which a student may besuspendedsuspended the local school district is authorized tothe local school district is authorized to

decide what types of offenses should call for adecide what types of offenses should call for asuspension.suspension.

Suspension is designed as a short Suspension is designed as a short--term disciplinaryterm disciplinaryaction. Under TEC 37.005 suspension is limited to threeaction. Under TEC 37.005 suspension is limited to threedays per offense, but there is no limit on the number of days per offense, but there is no limit on the number of

suspensions that might be imposed on a student,suspensions that might be imposed on a student,provided that each is for a separate incident of provided that each is for a separate incident of misconduct. This applies only to out misconduct. This applies only to out--of of--schoolschoolsuspension, not insuspension, not in--school suspension.school suspension.




Expulsion is the harshest penalty the school can impose, andExpulsion is the harshest penalty the school can impose, andthus is reserved for only the most serious offenses and isthus is reserved for only the most serious offenses and isavailable only with students who are at least 10 years old.available only with students who are at least 10 years old. TEC 37.007 spells out several types of conduct that requireTEC 37.007 spells out several types of conduct that require

expulsion from school. They are: (1) possession of weaponsexpulsion from school. They are: (1) possession of weapons

(2) assaultive offenses(2) assaultive offenses (3) arson(3) arson (4) murder, capital murder, criminal attempt to commit murder or(4) murder, capital murder, criminal attempt to commit murder or

capital murdercapital murder (5) indecency with a child(5) indecency with a child (6) aggravated kidnapping(6) aggravated kidnapping (7) drug or alcohol offenses if punishable as a felony(7) drug or alcohol offenses if punishable as a felony (8) retaliatory commission of an expellable offense against a school(8) retaliatory commission of an expellable offense against a school

employee.employee.

The first 7 must occur on school property or schoolThe first 7 must occur on school property or school--relatedrelatedfunction, but retaliation is expellable no matter where it tookfunction, but retaliation is expellable no matter where it tookplace.place.




A district has discretion over the following offenses: A district has discretion over the following offenses: (1) serious or persistent misconduct while placed(1) serious or persistent misconduct while placed

in a D A EPin a D A EP (2) drug or alcohol offenses, if not punishable as a(2) drug or alcohol offenses, if not punishable as a

felonyfelony (3) inhalant offenses(3) inhalant offenses (4) criminal mischief if punishable as a felony.(4) criminal mischief if punishable as a felony.

Most students will be expelled from the school programsMost students will be expelled from the school programs(including D A EP) to a Juvenile Justice A EP (JJ A EP) or(including D A EP) to a Juvenile Justice A EP (JJ A EP) or

other school program.other school program. Because a students property right to a publicBecause a students property right to a public

education is being taken, the 14th amendment requireseducation is being taken, the 14th amendment requiresthat the student be afforded an appropriate level of duethat the student be afforded an appropriate level of dueprocess, although the Education Code does not tell usprocess, although the Education Code does not tell us

how much process is due.how much process is due.




37.009 provides37.009 provides

Before a student may be expelled under Section 37.007, Before a student may be expelled under Section 37.007,the board or the boards designee must provide thethe board or the boards designee must provide thestudent a hearing at which the student is affordedstudent a hearing at which the student is afforded

appropriate due process as required by the federalappropriate due process as required by the federalconstitution and which the students parent or guardianconstitution and which the students parent or guardianis invited in writing to attend.is invited in writing to attend. State law imposes two other requirementsState law imposes two other requirements

(1) the student is entitled to be represented at an expulsion hearing(1) the student is entitled to be represented at an expulsion hearingby some adult who can give guidance to the student; this person isby some adult who can give guidance to the student; this person isusually the parent or guardian, but can be someone else, as long asusually the parent or guardian, but can be someone else, as long asit is not a district employeeit is not a district employee

(2) if an expulsion is ordered by the boards designee, then it is(2) if an expulsion is ordered by the boards designee, then it isappealable to the board, and then to the district court of the countyappealable to the board, and then to the district court of the countyin which the school districts administrative office is located.in which the school districts administrative office is located.




School districts can rely on student or staff witnesses,School districts can rely on student or staff witnesses,and even read their written witness statements at anand even read their written witness statements at anexpulsion hearing, without a right to crossexpulsion hearing, without a right to cross--examine byexamine bythe accused student.the accused student.

Courts have decided that such prerecorded statementsCourts have decided that such prerecorded statements(considered hear(considered hear--say in court) are admissible in student say in court) are admissible in student discipline matters.discipline matters.

The minimum due process requirements for a longThe minimum due process requirements for a long--termtermexpulsion consist of:expulsion consist of: (1) oral and written notice of the charges against the student (1) oral and written notice of the charges against the student

(2) an explanation of the evidence(2) an explanation of the evidence

(3) an opportunity for the student to present his side of the(3) an opportunity for the student to present his side of thestory.story.




Reasons for denying the right to cross examine include:Reasons for denying the right to cross examine include: (1) the fact that the administrators who investigate the offenses are(1) the fact that the administrators who investigate the offenses are

qualified to determine the truthfulness of student accusersqualified to determine the truthfulness of student accusers

(2) the fact that, if forced to testify, any students would fail to come(2) the fact that, if forced to testify, any students would fail to comeforwardforward

(3) reasons associated with administrative convenience.(3) reasons associated with administrative convenience.

The best policy to follow when students are caught inThe best policy to follow when students are caught inthe act of breaking a school rule and admit guilt is tothe act of breaking a school rule and admit guilt is togive them notice of the rule violation and an opportunitygive them notice of the rule violation and an opportunityin the presence of their parents or a representative toin the presence of their parents or a representative toconfirm their admission of guilt in writing and to waiveconfirm their admission of guilt in writing and to waiveformal due process rights.formal due process rights.




37.009 provides37.009 provides

Before a student may be expelled under Section 37.007, Before a student may be expelled under Section 37.007,the board or the boards designee must provide thethe board or the boards designee must provide thestudent a hearing at which the student is affordedstudent a hearing at which the student is afforded

appropriate due process as required by the federalappropriate due process as required by the federalconstitution and which the students parent or guardianconstitution and which the students parent or guardianis invited in writing to attend.is invited in writing to attend. State law imposes two other requirementsState law imposes two other requirements

(1) the student is entitled to be represented at an expulsion hearing(1) the student is entitled to be represented at an expulsion hearingby some adult who can give guidance to the student; this person isby some adult who can give guidance to the student; this person isusually the parent or guardian, but can be someone else, as long asusually the parent or guardian, but can be someone else, as long asit is not a district employeeit is not a district employee

(2) if an expulsion is ordered by the boards designee, then it is(2) if an expulsion is ordered by the boards designee, then it isappealable to the board, and then to the district court of the countyappealable to the board, and then to the district court of the countyin which the school districts administrative office is located.in which the school districts administrative office is located.



Off Off--Campus RulesCampus Rules

Schools retain the same authority over students at schoolSchools retain the same authority over students at school--sponsoredsponsoredactivities occurring off campus as they have when students are on campus.activities occurring off campus as they have when students are on campus. A ccording to TEC 37 A ccording to TEC 37

students must be removed to a D A EP if they engage in conduct that students must be removed to a D A EP if they engage in conduct that would be felonious under certain sections of the Texas Penal Code.would be felonious under certain sections of the Texas Penal Code.

One factor that comes into play with regard to off One factor that comes into play with regard to off--campus behavior iscampus behavior isthe nature of the disciplinary punishment.the nature of the disciplinary punishment. If the proposed sanction is a suspension from extracurricularIf the proposed sanction is a suspension from extracurricular

activities, rather than a suspension from school, the courts areactivities, rather than a suspension from school, the courts aremuch more likely to support the school districts position. Themuch more likely to support the school districts position. Thecourts have consistently ruled that participation in athletics andcourts have consistently ruled that participation in athletics andother extracurricular activities is a privilege rather than a right.other extracurricular activities is a privilege rather than a right.Therefore, where these activities are concerned, schools have moreTherefore, where these activities are concerned, schools have more

authority to create and enforce rules, even those that apply off authority to create and enforce rules, even those that apply off campus.campus.

A second key factor with regard to off A second key factor with regard to off--campus activity is whether or not campus activity is whether or not the school has some legitimate interest at stake; examples include thethe school has some legitimate interest at stake; examples include theuse of the internet.use of the internet. If the students activity moves beyond offensive to threateningIf the students activity moves beyond offensive to threatening

the school can assert its interest in maintaining safety by takingthe school can assert its interest in maintaining safety by taking

disciplinary action.disciplinary action.



Off Off--Campus RulesCampus Rules

Killion v. Franklin Regional School District (2001)Killion v. F ranklin Regional School District (2001) a st udent co mpos ed a to p 10 list listing th e personal an da st udent co mpos ed a to p 10 list listing th e personal an d

pro fessional f ailings o f th e school s AD at his ho me an d h epro fessional f ailings o f th e school s AD at his ho me an d h eemail ed it to oth ers who print ed an d distri but ed it at school .email ed it to oth ers who print ed an d distri but ed it at school .

Th e school s us pen ded th e st udent an d r emov ed hi m f ro mTh e school s us pen ded th e st udent an d r emov ed hi m f ro mth e track t ea m, but at r egional co urt th e cas e was th e track t ea m, but at r egional co urt th e cas e was ov ert urn ed an d th e co urt h el d that th e school ha d f ail ed to ov ert urn ed an d th e co urt h el d that th e school ha d f ail ed to sho w that th e st udent s actions wer e mat eriall y disr uptiv e to sho w that th e st udent s actions wer e mat eriall y disr uptiv e to th e education proc ess .th e education proc ess .

JS, a Minor v . Bethl eh em A r ea School D istrict JS, a Minor v . Bethl eh em A r ea School D istrict A st udent cr eat ed a websit e against his alg ebra t each er that A st udent cr eat ed a websit e against his alg ebra t each er that

was thr eat ening ; th e co urt deci ded that th e con duct was was thr eat ening ; th e co urt deci ded that th e con duct was mat eriall y disr uptiv e an d a s ubstantial invasion o f th e rights mat eriall y disr uptiv e an d a s ubstantial invasion o f th e rights o f oth ers an d th e st udent s expulsion was uph el d.o f oth ers an d th e st udent s expulsion was uph el d.



Due ProcessDue Process

Notice/hearingNotice/hearing There are 3 key concepts necessary to anThere are 3 key concepts necessary to an

understanding of the due process clauses in ourunderstanding of the due process clauses in ourConstitution:Constitution: (1) There must be some action of the state(1) There must be some action of the state generallygenerally

speaking, actions by private entities do not implicate the duespeaking, actions by private entities do not implicate the dueprocess clauseprocess clause

(2) the state must have deprived the individual of life,(2) the state must have deprived the individual of life,liberty, or propertyliberty, or property a person who sues over a violation of a person who sues over a violation of

due process must assert a property interest or libertydue process must assert a property interest or libertyinterestinterest

(3) the nature of the process due depends on the severity of (3) the nature of the process due depends on the severity of

the deprivation.the deprivation.




In the caseIn the case D i xo n v . Al abama State Bo ard of D i xo n v . Al abama State Bo ard of Edu cat io nEdu cat io n, the cour t held that st ud ents at a pu bli c, the cour t held that st ud ents at a pu bli ccoll ege ar e ent i t l ed t o f air no t i ce of the rul es theycoll ege ar e ent i t l ed t o f air no t i ce of the rul es theywer e char ged wi th br eaki ng and a f air heari ng befor ewer e char ged wi th br eaki ng and a f air heari ng befor ethey could be expell ed and the cour t al so establi shed they could be expell ed and the cour t al so establi shed what i t co nsid er ed t o be the com po nents of f air what i t co nsid er ed t o be the com po nents of f air no t i ce and a f air heari ng:no t i ce and a f air heari ng: (1) the no t i ce should co ntai n a statem ent of the specifi c(1) the no t i ce should co ntai n a statem ent of the specifi c

char ges and the grou nd s that, if prov en, would ju st if ychar ges and the grou nd s that, if prov en, would ju st if yexpul sio nexpul sio n

(2) st ud ents should be giv en an o ppor t u ni ty t o pr esent t o the(2) st ud ents should be giv en an o ppor t u ni ty t o pr esent t o thebo ard of t ru stees or admi ni st r at iv e offi ci al s of the coll egebo ard of t ru stees or admi ni st r at iv e offi ci al s of the coll egetheir o wn d ef ense agai nst the char ges, i ncludi ng the ri ght t o their o wn d ef ense agai nst the char ges, i ncludi ng the ri ght t o call wi tnesses o n their behalf call wi tnesses o n their behalf

(3) st ud ents should be appri sed of the r esul ts and fi ndi ngs of (3) st ud ents should be appri sed of the r esul ts and fi ndi ngs of the heari ng i n a r epor t o pen t o their i nspect io n.the heari ng i n a r epor t o pen t o their i nspect io n.




G oss v . L op ezG oss v . L op ez deals with due p ro cess in p ublicdeals with due p ro cess in p ublics choo ls .s choo ls .

InIn Meyer v . Aus tin (1999)Meyer v . Aus tin (1999), the co urt emp has ized, the co urt emp has ized

that due p ro cess mus t be p rov ided t o thethat due p ro cess mus t be p rov ided t o thes tudent, no t the p arent s .s tudent, no t the p arent s .

The greater the loss s uffered by the s tudent, theThe greater the loss s uffered by the s tudent, themo re sy mp athetic co urt s are likely t o be t o mo re sy mp athetic co urt s are likely t o be t o

claims o f lack o f due p ro cess and the co urt s do claims o f lack o f due p ro cess and the co urt s do no t app ear v ery sy mp athetic t o disp utes ov er ano t app ear v ery sy mp athetic t o disp utes ov er as tudent s grades .s tudent s grades .



Goss v. Lopez Goss v. Lopez

In Ohio, 9 students were given a 10In Ohio, 9 students were given a 10--day suspension from school andday suspension from school andthe school principal did not hold hearings for the affected studentsthe school principal did not hold hearings for the affected studentsbefore ordering the suspensions.before ordering the suspensions.

The US Supreme Court concluded that due process is required before aThe US Supreme Court concluded that due process is required before a

student can be suspended from school. Since the deprivation of student can be suspended from school. Since the deprivation of property imposed by the state is less harsh in a case of short property imposed by the state is less harsh in a case of short--termtermsuspension, the process that is due is much less burdensome.suspension, the process that is due is much less burdensome.

In this case, the Court concluded that, because the state providesIn this case, the Court concluded that, because the state providescompulsory schooling, even a short compulsory schooling, even a short--term suspension deprives theterm suspension deprives the

student of a property right and, thus, requires due process. Instudent of a property right and, thus, requires due process. Incases of suspensions of 10 days or less, the Court ruled that duecases of suspensions of 10 days or less, the Court ruled that dueprocess requires school officials to give the student informal noticeprocess requires school officials to give the student informal noticeof the misbehavior and an opportunity to offer an explanation.of the misbehavior and an opportunity to offer an explanation.



Corpor al PunishmentCorpor al Punishment

Corporal punishment continues to be legal in Texas and alsoCorporal punishment continues to be legal in Texas and alsocontinues to be one of the few areas where local control trulycontinues to be one of the few areas where local control trulyexists.exists. There is no state law regarding corporal punishment, therefore theThere is no state law regarding corporal punishment, therefore the

decisions are left to local school officials.decisions are left to local school officials.

InIn Ingraham v . Wright Ingraham v . Wright, the Court ruled that corporal punishment , the Court ruled that corporal punishment of public school studentsof public school students (1) did not require any formal due process measures, such as notice(1) did not require any formal due process measures, such as notice

and a hearingand a hearing (2) under no circumstances could be considered cruel and unusual(2) under no circumstances could be considered cruel and unusual

punishment as that term is used in the Eighth A mendment.punishment as that term is used in the Eighth A mendment.

TEC 37.0021 absolutely prohibits the use of seclusion by publicTEC 37.0021 absolutely prohibits the use of seclusion by public

schools.schools. Seclusion is defined as a technique in which a student is confined inSeclusion is defined as a technique in which a student is confined in

a locked box, locked closet, or locked room that is designed solelya locked box, locked closet, or locked room that is designed solelyto seclude a person and whose area is less than 50 square feet.to seclude a person and whose area is less than 50 square feet.

student discipline/legal issues, william allan kritsonis, phd

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