William Kritsonis, School Law, Ch 8 Suspension, Expulsion

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Regular School Discipline, Suspension, and
Expulsion William Allan Kritsonis, PhD
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Regular Student Discipline

• Expulsion-Suspension

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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.
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Grounds for Nondisabled studentsRemoval 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
  teachers 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
  teachers class.

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Grounds for Nondisabled studentsRemoval 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.

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Grounds for Nondisabled studentsRemoval by
teacher cont

• A removed student cannot be returned to the
  teachers classroom over the teachers 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 teachers class without the teachers
  consent. The teacher may not be coerced to
  consent. (Sec. 37.002(c) and 37.002(d)).

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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 districts Student Code of Conduct.
• A student may be suspended for up to three days
  at a time

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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.

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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 employees
  job-related duties.

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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 boards 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

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Removal to Disciplinary Alternative Education
Program Cont

• If the board or the boards designee determines
  that the students 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 districts
  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
  students 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.

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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.)

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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.

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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
  employees or volunteers 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.

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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.

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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 teachers 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.

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Emergency removal

• A principal (or designee) may order the
  immediate removal of a student to a DAEP or may
  order expulsion if the students behavior is such
  that it seriously interferes with the teachers
  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.

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Nevares v. San Marcos C.I.S.D.
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 Educators 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.
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Aledo I.S.D. v. Reese
Also stated in The Educators 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 boards 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.
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Goss Case
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
students 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
requiredless than a fair minded school
principal would impose upon himself in order to
avoid unfair suspension.
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RESOURCES Walsh, J., Kemere, F., Maniotis, L.
(2005). The Educators 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/aa
ps.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