Discipline and Studies Professor William Allan Kritsonis, PhD Educational Law Series

1. Student Discipline William Allan Kritsonis, PhD

2. Student Discipline http:// www.trutv.com/shows/principals_office/index.html?pid =rRxmL8QHUST2G0fDX1siNkK_lohjcdDo

3. Introduction Perhaps there is no area of school law more interesting to parents and the public than student discipline. Surveys show a high degree of concern over a perceived lack of discipline in public schools. What are the rules for student behavior? Can school administrators impose disciplinary consequences without undue fear of litigation? In this chapter we will explore these issues in the context of the Texas Education Code as well as the limitations imposed by the U.S. Constitution.

4. Guidelines for Rule Making Rules are necessary for society to function…rules are important for an orderly educational environment. Rules are a prerequisite to due process, since accused persons are entitled to notice of the charges against them. A 1982 court decision Board of Education of Rogers, Arkansas v. McCluskey dealt with a student being expelled from school for drinking. The Supreme Court ruled in favor with the school district citing that although alcohol was not written in the districts rules, it was interpreted under “drugs” which was written. The message was clear, local school boards can interpret their own rules and courts must defer to those interpretations, within reason.

7. Guidelines for Rule Making In 1972, the Fifth Circuit Court of Appeals ruled that when the consitutionality of a school rule is questioned, the burden of proof falls on the school board. (Shanley v. Northeast ISD) In Chalifoux v. New Caney ISD, New Caney ISD tried to enforce its anti-gang rule for students wearing rosary beads on campus. The court viewed the wearing of the rosary as religious expression. The judge noted that the districts student handbook defined gang-related attire as any attire that identifies students as a group (gang-related). He noticed that it was improper to define a word by using that same word in the definition. As phrased in the handbook, the definition revealed little of what was prohibited, further more he [the judge] noted the handbook definition could encompass numerous extracurricular groups on campus that used certain attire or symbols for identification. He also stated that it would not be overly burdensome for the district to provide a specific list of prohibited items and to update the list as needed.

9. Guidelines for Rule Making Students shall be treated fairly and equitably. Discipline shall be based on careful assessments of the circumstances of each case. Factors should 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; G. The Student Code of Conduct adopted by the Board. To enforce rules consistently and fairly does not mean that there is no room for discretion, but administrators must be prepared to explain why different cases are handled differently due to the factors cited in the district’s policy or code of conduct. Inconsistent enforcement creates problems when the inconsistency is based on favoritism and toward certain students.

10. Chapter 37 Student discipline is covered by Chapter 37 of the Texas Education Code (TEC) which is part of Senate Bill I. Decisions should be made in local communities, not Austin. Texas is too diverse to have a one-size-fits-all approach to problems. Chapter 37 went against giving local control of discipline to districts, the state had more control over student discipline, but over time the legislature has returned some degree of control to local school districts in dealing with student disciplinary matters. (The word “ may ” appears rarely in Chapter 37, but “ Shall ” and “ Must ” are frequent.) The legislature’s desire to keep students in school if at all possible is evident in Chapter 37. Despite calls for “zero tolerance,” the legislature has not made it easy to expel students. The legislature has removed some of the reasons a student can be expelled from school. If a student violates any of the removed “expellable offenses,” they will be placed in a disciplinary alternative education program (DAEP). Expulsion is reserved for only the most serious offenses.

11. Chapter 37 Schools are required to establish at least one DAEP and are required to place students there in case of certain misconduct. Students assigned to the DEAP must be separated from other students. The notion seems to be that if we can keep the “bad kids” from the “good kids” schools will be safer and better. Houston ISD does not have it’s own DAEP, it has contracted with at Nashville, TN firm called Community Education Partners or CEP. There are two locations in Houston, one off Beechnut and Fondren (SW) and one off Gulf Freeway and Ferndale (SE). Classroom Profile (SE Campus) Classroom Profile (SW Campus) Enrollment ? 611 Enrollment ? 650 Economically Disadvantaged 85.8% Economically Disadvantaged 77.7% White 1.0% White 3.7% Black 40.9% Black 38.0% Hispanic 58.1% Hispanic 57.2% Asian/Pacific Islander 1.1%

12. Chapter 37 Chapter 37 gives the teacher more control over the classroom. The bill strengthens the hand of the teacher who wants to remove an unruly student from the classroom, but perhaps not as much as some teachers would like.

13. Student Code of Conduct Chapter 37 TEC 37.001 (a) requires districts to adopt a student code of conduct that will specify standards for student conduct and outline the types of behavior that might get a student in trouble in school. The code of conduct is a familiar concept in school law. It is a basic rule of due process that students can only be punished for misconduct after they are advised that such conduct is prohibited. Most schools fulfill this responsibility by distributing a “student handbook” containing all the rules and regulations of the school, including those pertaining to discipline. Most school districts require parents and students so sign a receipt indicating that they have received [and read] the book.

14. Teacher Initiated Removal Chapter 37 One of the stated purposes of the disciplinary changes incorporated into Chapter 37 was to give classroom teachers more authority. The TEC spells out three different ways for teachers to remove students from the classroom…temporarily 1. Teacher removal for assistance: send students to the principal’s office for general disruptions. 2. Discretionary teacher removal: repeated offenses by the student which interferes with the learning environment or offenses the teacher deems as unruly, disruptive, or abusive as to interfere with the teachers ability to teach and students to learn. When the teacher exercises this authority, the principal is required to convene a conference within three class days with the student, teacher, and parent. But the conference may continue whether all parties are present or not. 3. Mandatory removal: student commits an offense that requires removal to a DAEP.

15. Other forms of Removal Chapter 37 Suspension Expulsion Possession of weapons Assaultive offenses Arson Murder Indecency with a child Aggravated kidnapping Drug or Alcohol offenses Retaliation against a school employee Johnson v. Humble ISD (1992) Tasby v. Estes (1981) Boykins v. Fairfield Board of Education (1974)

16. Criminal Justice Chapter 37 Communication between schools and law enforcement is required in Chapter 37. School districts must notify the juvenile board when students commit an offense that requires placement in DAEP or expulsion. State law also requires local law enforcement to give oral notice to the superintendent within 24 hours after a student is arrested or taken into custody with certain offenses. These include: terroristic threats drug offenses weapons A Juvenile Justice AEP (JJAEP) is required in any county of Texas with a population of more than 125,000 residents. Smaller counties may develop a JJAEP, but are not required to do so. JJAEPs serve students who have been expelled and found to have engaged in delinquent behavior. JJAEPs are joint ventures operated by the school districts and the juvenile justice board.

17. Corporal Punishment Chapter 37 Corporal Punishment continues to be legal in Texas. It also continues to be one of the few areas where local control truly exists. There is no state law regarding corporal punishment, therefore, all decisions about this is left to local districts. There have been efforts to eliminate corporal punishment by judicial decree, but they have not been successful. In the 1977 U.S. Supreme Court case Ingraham v. Wright ruled that corporal punishment did not require any formal due process measures. Thus the Court left the regulation of corporal punishment to state and local officials.

18. Student Discipline Summary The law pertaining to student discipline, like many other areas of the law swings like a pendulum from emphasis on authority to an emphasis on individual liberty. The very concept of in loco parentis was designed to recognize that authority to the same degree that the law would recognize a parent’s.