Student Discipline/Law, William Allan Kritsonis, PhD

8/8/2019 Student Discipline/Law, William Allan Kritsonis, PhD

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Generally, courts defer to educators on the

interpretation and application rules. In 1982 the U.S. Supreme Court in Board of Education of Rogers., Arkansas v. McCluskey dealt with a case in which a local school board had expelled astudent for drinking.

The Court noted that alcohol can be classified as adrug and concluded that ´the District Court andthe Court of Appeals plainly erred in replacing the Board·s construction of [the rule] with their own

notions under the facts of the case.µ The message was clear-local school boards can interpret theirown rules and courts must defer to those interpretations, within reason.



People are more likely to follow rulesare rationally related to securing asafe and orderly environment.

Most discipline experts agree that the

fewer the rules, the better the understanding of what behavior isappropriate and what is not.



Keep rules short yet comprehensive, byincluding several diverse examples to illustrate meaning.

Transpose the wording of complex terminology

into terms understandable to students. Have students help in rewording or

constructing rules.

The rules are explained carefully at the start of each school term and periodically thereafter, asfor example when a rash of misbehavior breaksout.



Rules that pertain to constitutionally or statutorilyprotected behavior, particularly free speech and press,must be drawn with special care so as not to ´chillµ the exercise of these rights.

The New Caney I.S.D. was unsuccessful in applying its

anti-gang rule to bar students from wearing rosary beadson campus (Chalifoux v. New Caney I.S.D.).

The Third Circuit struck down a school district·s anti-harassment policy in Saxe v. State College Area School

District (2001). The policy was designed to protectstudents and staff from harassment based on race,religion, color, national origin, gender, sexualorientation, disability, or other personal characteristics.

Educators must walk a fine line in adopting rules that

infringe in any way on expressive activities.



In Ryan G v. Navasota I.S.D., student was found tobe a ´minor in possession of alcoholµ away fromschool during spring break. In accordance with the

handbook, the school suspended the student fromthe baseball team. The parents appealed thisdecision to the commissioner, but the commissioner found the rule to be proper.

If a student uses his own computer at home on hisown time and creates a Web site or posts messagesthat school officials find offensive, this alone doesnot give the school authority to impose discipline.



Unless rules are enforced, they lose their influence asbehavior guides. This does not mean a ´zero toleranceµ

policy is the only way to go. Students should be treated fairly and equitably.

Discipline should be based on careful assessment of the circumstances of each case.

Factors to consider shall include:a) The seriousness of the offense;b) The student·s age;c) The frequency of misconduct;d) The student·s attitude;e) The potential effect of the misconduct on the school

environment;f) Requirements of Chapter 37 of the Education Code;

andg) The Student Code of Conduct adopted by the Board.



Required where government decisionmay cause the deprivation of an interestprotected by the Fourteenth

Amendment Protected interests related to student

discipline

Property interest ²continuing toattend a public institution

Liberty interest ²reputation



Full blown adversarial hearing NOTrequired Minimum requirements

Oral or written notice of charges

Explanation of evidence supporting charges

Opportunity to present their side of charges

Goss v. Lopez, 419 U.S. 565 (1975)



Courts expanded requirements« Written statement of charges

Hearing before individuals with

authorization to determine sanction Opportunity for advance inspection of

evidence University intends to submit

Right to bring counsel to hearing to advise ²not to question witnesses

Opportunity to present own version of factsthrough witnesses or documents



Right to hear evidence against them and question(personally, not through legal counsel) adverse witnesses

Determination of facts of the case by hearing officerbased solely on evidence presented at hearing

Written statement of hearing officer·s findings of fact

Right, at own expense, to make recording of hearing

Esteban v. Central Missouri State College, 277 F. Supp 649(W.D. Mo. 1967)



Student discipline in Texas is covered in Chapter

37 of the Texas Education Code, which wasenacted in 1995 as part of Senate Bill I. Most of the key players in the adoption of Senate Bill I, fromGovernor Bush.

The legislature has not made it easier for schoolsto expel students. Instead, students who commitoffenses will be placed in a disciplinaryalternative education program.

Great emphasis is on ´DAEPsµ-disciplinaryalternative education programs.

The interplay between schools and the juvenile justice system.



TEC 37.00 I (a) requires each district to

adopt a student code of conduct that willspecify standards for student conductoutline the types of behavior that might get

a student in trouble at school. Most schools discharge the responsibility

by distributing a ´student handbookµcontaining all the rules and regulations of the school, including those pertaining todiscipline.



Discretionary teacher removal is authorized for astudent:

1. Who has been documented by the teacher torepeatedly interfere with the teacher·s ability to

communicate effectively with the students in the class or with the ability of the student·sclassmates to learn; or

2. Whose behavior the teacher determines is so

unruly, disruptive, or abusive that it seriouslyinterferes with the teacher·s ability tocommunicate effectively with the student in the class or with the ability of the student·sclassmates to learn.



The Education Code contains just one short

section dealing with suspension. It states that astudent 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.

Suspension is designed as short-term disciplinaryaction. Under TEC 37.00 (b), suspension is limitedto three days per offense.



At School: Section 37.006 lists offenses for which a

student must be assigned a DAEP. They are:1. Any conduct punishable as a felony

2. An assault resulting in bodily injury

3.

A terroristic threat or false alarm or report4. Certain drug offenses

5. Certain alcohol offenses

6. Inhalant offenses

7. Public lewdness

8. Indecent exposure



Off Campus Conduct:

1. The first involves the commission of a felony offense under Title 5 of the Texas Penal Code.

2. The second type of off-campus conduct that requiresDAEP removal is engaging in conduct that contains

the elements of the offense of retaliation against anyschool employee, under Penal Code 36.06.

3. In addition to mandatory DAEP offenses, there are offenses for which a student may be placed inDAEP.

4. State law does not tell us how long a DAEPplacement is to last, but it does require the code of conduct to establish guidelines for the length of placement.



Expulsion is the hardest penalty the school can

impose, and thus is reserved only for the most seriousoffenses and is available only with students who are at least ten years old.

Grounds:

1. Possession of a weapon

2. Assaultive offenses

3. Arson

4. Murder

5. Indecency with a child6. Aggravated kidnapping

7. Drug or alcohol offenses if punishable as a felony

8. Retaliatory commission of an expellable offense

against a school employee



The effect of this provisions is to eliminate

expulsion in the large counties. Students who are expelled due to commission of a mandatoryexpulsion offense likely will be required to attendthe JJAEP.

The Education Code does not tell us how muchprocess is due prior to an expulsion. Instead, itmerely invokes federal constitutional standards.

State law specifies that the appeal of a student

expulsion is to be heard by the district court by ´trial de novo,µ meaning, essentially, a new trial.



School officials encounter emergencies daily. Texas

law recognizes that there are occasions when astudent must be removed form the school due to anemergency.

Emergency removal to a DAEP is also available whenever the principal or designee ´reasonably

believes the student·s behavior is so unruly,disruptive, or abusive that it seriously interferes witha teacher·s ability to communicate effectively with the students in a class, with the ability of the student·s

classmates to l

earn, or with th

eop

eration o

fth

eschoolor a school-sponsored activity.

Neither emergency placement nor emergencyexpulsion under 37.019 has a definite time limit.



School districts must notify the juvenile board whenstudents commits an offense that requires placementin DAEP or expulsion.

A Juvenile Justice AEP (JJAEP) is required in anycountry with a population in excess of 125,000. Smallercounties may develop a JJAEP but are not required to

do so. The law now prohibits a judge from placing an

expelled student back in any school program,including a school-operated DAEP, unless the juvenile board and the school board have entered into a

memorandum of understanding concerning the juvenile probation department·s role in supervisingand providing other support services for students inAEP·s (TEX 37.010(c)).



State law does not address those strategies to be

used for routine student discipline. This is a matterlargely left to the local school district, itsadministrators, and its teachers.

Traditionally teachers and administrators have

exercised authority over students on the basis of the common law doctrine of in loco parentis, ´inplace of a parent.µ

While no hearing is required legally when usingroutine disciplinary techniques, it seems wise toinform the student of the infraction and give the student a chance to explain.



There have been efforts to eliminate corporalpunishment by judicial decree, but they have notbeen successful.

The Fifth Circuit followed up on its Cunninghamv. Beavers ruling by issuing a similar decisionsinvolving the paddling of a sixth grade specialeducation student by the school·s principal.

While Texas leaves all decisions about corporalpunishment to local officials, it does impose

statewide restrictions on other practices of aphysical nature. Section 37.002I of the TECabsolutely prohibits the use of ´seclusionµ bypublic schools.



Early cases indicated that at least some sort of minimal due process was required. In EctorCounty I.S.D. v. Hopkins (1974) a Texas court of appeals ruled that a student was entitled to notice

and a hearing before permanent expulsion formthe National Honor Society and the PermianPepettes.

Student involvement with extracurricular activity

is further affected by the student·s status inschool. TEC 37.006(g) requires that students whoare removed to a DAEP also must be removedfrom participation in or attendance atextracurricular activities.

Student Discipline/Law, William Allan Kritsonis, PhD

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