w.a. kritsonis, phd - regular school discipline, suspension, and e

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Public School LawRegular School Discipline, Suspension, and Expulsion

Lecture Notes

William Allan Kritsonis, PhD



Regular Student Discipline

—

Expulsion-Suspension

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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.



!rounds for" #ondisabled

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 aility to

communicate with the class !" if the student engages in

ehavior so unruly# disruptive# or ausive that it seriously

interferes with instruction. (Sec. 37.002())

$ollowing removal# the principal may place the student in a

disciplinary alternative education program (%A&')# inschool

suspension# or another teacher’s class.

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students$$Removal by teacher cont&

A teacher must remove from class and send tothe principal any student who engages inconduct for which the student must e placed

in a %A&' or for which the student may ormust e epelled. (Sec. 37.002(d)* see also Secs.37.00+ and 37.007)

A conference must e held within three classdays of the removal# during which time thestudent may not e returned to the regularclassroom.

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students$$Removal by teacher cont&

( removed student cannot be returned to the

teacher)s classroom over the teacher)s

ob*ection unless the +lacement Review

,ommittee finds that the placement is the best

or the only alternative. -f the teacher removed

the student from class because the student has

engaged in an offense of assault causing

bodily in*ury 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. 0.2/c and

0.2/d.

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Suspension

( student may be suspended for engaging in

any conduct that could place the student in a

D(E+. (dditional grounds for suspension may be developed

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

Student ,ode of ,onduct.

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

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Removal to Disciplinary (lternative

Education +rogram

A school district must place in a %A&' any student who engages inthe following conduct that occurs on or within 300 feet of schoolproperty or while the student is attending a schoolsponsored orschoolrelated 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 underthe 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 rogram ,ont&

A student must e placed in a %A&' if# while off campus and not inattendance at a schoolsponsored or schoolrelated activity# thestudent receives deferred prosecution for offenses listed in -itle ofthe -eas 'enal /ode# i.e.# violent offenses against the person* a courtor ury finds that the student has engaged in delin1uent conduct orconduct prohiited in -itle * or the superintendent has a reasonale

elief that the student engaged in conduct defined as a -itle felonyoffense.

A student who is re1uired to register as a se offender must e placedin a %A&' or A&' for at least one semester.

A student must e placed in a %A&' for engaging# whether or not onschool property or at a school event# in conduct constitutingretaliation# i.e.# harming or threatening to harm y an unlawful act aschool employee on account of the employee’s orelated duties.

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A student may e placed in a %A&' if the student# while offcampus and not in attendance at a schoolsponsored or schoolrelated activity,

!as engaged in "nonviolent# conduct defined as a felony offense OT!$%than those defined under Title &, Texas enal Code "violent conduct#, andthe superintendent has a reasonable belief that the student has engaged insuch conduct; and

The continued presence of the student in the regular classroom threatensthe safety of other students or teachers or will be detrimental to theeducational process.

-he oard of trustees of a school district# or the oard’s designee#after an opportunity for a hearing may elect to place a student in a%A&' if the student,

%eceives deferred prosecution for conduct defined as a felony;

$ngages in delin'uent conduct defined as a felony; or1





f the oard or the oard’s designee determines that the student’s presence inthe regular classroom, Threatens the safety of other students or teachers; (ill be detrimental to the educational process or is not in the best interests of

the district)s students.

4hen a student is removed to a %A&'# a conference is re1uired within threedays of removal. -he school oard or its designee must review a student’sstatus# including academic status# at least every 520 days. $or high schoolstudents# progress toward graduation re1uirements must e reviewed and aspecific plan developed.

An elementary school student may not e placed in a %A&' withnonelementary school students.

Students younger than age + may not e removed to a %A&'# unless they ringa firearm to school.

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Expulsion or Removal to D(E+ 66(E+

* student may be expelled or placed in a +*$ or *$ if thestudent has received deferred prosecution for conduct defined asa felony offense in Title & of the Texas enal Code; has beenfound by a court or jury to have engaged in delin'uent conduct orconduct defined as a felony offense in Title & of the Texas enal

Code; is charged with engaging in conduct defined as a felonyoffense in Title & of the Texas enal Code; has been referred to a juvenile court for allegedly engaging in delin'uent conduct orconduct defined as a felony offense in Title & of the Texas enalCode; has received probation or deferred adjudication for afelony offense under Title & of the Texas enal Code; has beenconvicted of a felony offense under Title & of the Texas enalCode; or has been arrested for or charged with a felony offenseunder Title & of the Texas enal Code. "-OT$ Certain instancesdescribed here re'uire mandatory removal to +*$.#

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Expulsion

A student must e epelled for committing any of the

following serious offenses while on school property or while

attending a schoolsponsored or schoolrelated activity,

ses, exhibits, or possesses a firearm, illegal 0nife, 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 0idnapping, aggravated robbery,

manslaughter, criminally negligent homicide, or drug1 or alcohol1related offenses punishable as a felony.

A student must e epelled for committing any of the aove

offenses in retaliation against a school employee on or off

school property. 1



Expulsion cont&

A student may be expelled if, while on or within 3 feet of schoolproperty or while attending a school-sponsored or school-relatede!ent, the student" Sells7gives7delivers7possesses or is under the influence of mari*uana controlled

substances dangerous drugs or alcoholic beverages8 or

Engages in conduct containing the elements of offenses related to abuse ofvolatile chemicals8 or

Engages in serious or persistent misbehavior occurring while placed in a D(E+8or

(ssaults and causes in*ury to an employee or volunteer including in retaliationfor the employee)s or volunteer)s duties in the district or commits a terroristic

threat against a teacher8 or Engages in conduct containing the elements of deadly conduct8 or 9ses exhibits or possesses a firearm illegal :nife club or other prohibited

weapon8 or Engages in conduct containing the elements of aggravated assault sexual

assault aggravated sexual assault arson murder indecency with a childaggravated :idnapping aggravated robbery manslaughter criminally negligent

homicide or drug; or alcohol;related offenses punishable as a felony. 1%



Expulsion cont&

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

sponsored or school-related acti!ity of a schoolin another district in this state" 9ses exhibits or possesses a firearm illegal :nife club or

other prohibited weapon8 or

Engages in conduct containing the elements of aggravatedassault sexual assault aggravated sexual assault arsonmurder indecency with a child aggravated :idnappingaggravated robbery manslaughter criminally negligenthomicide or drug; or alcohol;related offenses punishable as

a felony. 1'



Expulsion cont&

A student may e epelled if the student,

$ngages in conduct containing the elements of felonious

criminal mischief; or

$ngages in school1related conduct involving false report or

alarm, or terroristic threat.

Students under age 50 cannot e epelled# although they can

e sent to %A&'s.

A teacher must e informed y the district if one of the

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

(6!-&, A teacher must eep this information confidential#

or ris certificate sanctions.)

A student must e given a hearing efore epulsion occurs.13



Emergency removal

< * principal "or designee# may order the immediate removal ofa student to a +*$ 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.

2 The student shall receive oral notice of the reason for theaction at the time of the emergency placement. * 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 Expulsion would be Nevares v. San Marcos C.I.S.D. In this case, given by “The Educator’sGuide to Texas School Law”, it states that Timothy Nevares was among the firststudents assigned t o DAEP after the adoption of the “mandatory placement”

provisions in Chapter 37. Nevares was placed in DAEP based on off-campusconduct. His suit against the San Marcos C.I.S.D. was followed closely byeducators in Texas, since it was the first major court challenged to some of themore controversial aspects of Chapter 37. Though Nevares had some success atdistrict level, he struck out before the Fifth Circuit. Nevares had complained of alack of due process, alleging that the school had tossed him into an inferiorprogram without a proper hearing. But the Fifth Circuit ruled that no process

was due, because the student was not deprived of property or liberty. “TimothyNevares was not denied access to public education, not even temporarily. He wasonly 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 toany kind of hearing, not even an informal type hearing. This would appear toclose the door to suits alleging a violation of federal due process based on DAEPassignments.

Nevares v. San Marcos C.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 a weekendhunting trip. The student filed suit, and a state district judgeissued an injunction, ordering the school to readmit thestudent to the regular school program. The court of appeals

read TEC 37.0009(b) (= Any decision of the board or the board)sdesignee under this subsection is final and may not beappealed>) and declared that it means what it says--- DAEPorders may not be appealed beyond the school board.

Therefore, the state district judge should not have even heardthe case. The injunction was issued erroneously and was void.

A second court of appeals reached exactly the same conclusioninHankins 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 theGoss 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 Fourteenth Amendment 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 principal would 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 speech

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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