Courts Defer to Educators on Student Discipline Rules

 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 a
student for drinking.
 The Court noted that alcohol can be classified as a
drug and concluded that “the District Court and
the Court of Appeals plainly erred in replacing the
Board’s construction of [the rule] with their own
notions under the facts of the case.” The message
was clear-local school boards can interpret their
own rules and courts must defer to those
interpretations, within reason.

 People are more likely to follow rules
are rationally related to securing a
safe and orderly environment.

 Most discipline experts agree that the
fewer the rules, the better the
understanding of what behavior is
appropriate and what is not.

 Keep rules short yet comprehensive, by
including 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, as
for example when a rash of misbehavior breaks
out.

 Rules that pertain to constitutionally or statutorily
protected behavior, particularly free speech and press,
must be drawn with special care so as not to “chill” 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 beads
on 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 protect students
and staff from harassment based on race, religion, color,
national origin, gender, sexual orientation, 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 to
be a “minor in possession of alcohol” away from
school during spring break. In accordance with the
handbook, the school suspended the student from
the baseball team. The parents appealed this
decision to the commissioner, but the
commissioner found the rule to be proper.
 If a student uses his own computer at home on his
own time and creates a Web site or posts messages
that school officials find offensive, this alone does
not give the school authority to impose discipline.

 Unless rules are enforced, they lose their influence as
behavior guides. This does not mean a “zero tolerance”
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; and
g) The Student Code of Conduct adopted by the Board.

 Required where government decision
may cause the deprivation of an interest
protected by the Fourteenth
Amendment
Protected interests related to student
discipline
Property interest –continuing to
attend a public institution
Liberty interest –reputation

 Full blown adversarial hearing NOT
required
 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 –

not to question witnesses
 Opportunity to present own version of facts

through 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 officer
based 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 was
enacted in 1995 as part of Senate Bill I. Most of the
key players in the adoption of Senate Bill I, from
Governor Bush.
 The legislature has not made it easier for schools
to expel students. Instead, students who commit
offenses will be placed in a disciplinary
alternative education program.
 Great emphasis is on “DAEPs”-disciplinary
alternative 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 will
specify standards for student conduct
outline the types of behavior that might get
a student in trouble at school.
 Most schools discharge the responsibility
by distributing a “student handbook”
containing all the rules and regulations of
the school, including those pertaining to
discipline.

 Discretionary teacher removal is authorized for a
student:
1. Who has been documented by the teacher to
repeatedly interfere with the teacher’s ability to
communicate effectively with the students in the
class or with the ability of the student’s classmates
to learn; or
2. Whose behavior the teacher determines is so
unruly, disruptive, or abusive that it seriously
interferes with the teacher’s ability to
communicate effectively with the student in the
class or with the ability of the student’s classmates
to learn.

 The Education Code contains just one short
section dealing with suspension. It states that a
student 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 disciplinary
action. Under TEC 37.00 (b), suspension is limited
to 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 report
4. 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 requires
DAEP removal is engaging in conduct that contains
the elements of the offense of retaliation against any
school employee, under Penal Code 36.06.
3. In addition to mandatory DAEP offenses, there are
offenses for which a student may be placed in DAEP.
4. State law does not tell us how long a DAEP
placement 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 serious offenses
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 child
6. 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 mandatory
expulsion offense likely will be required to attend
the JJAEP.
 The Education Code does not tell us how much
process is due prior to an expulsion. Instead, it
merely 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,” meaning, essentially, a new trial.

 School officials encounter emergencies daily. Texas
law recognizes that there are occasions when a
student must be removed form the school due to an
emergency.
 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 with
a teacher’s ability to communicate effectively with the
students in a class, with the ability of the student’s
classmates to learn, or with the operation of the school
or a school-sponsored activity.
 Neither emergency placement nor emergency
expulsion under 37.019 has a definite time limit.

 School districts must notify the juvenile board when
students commits an offense that requires placement
in DAEP or expulsion.
 A Juvenile Justice AEP (JJAEP) is required in any
country with a population in excess of 125,000. Smaller
counties 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 supervising
and providing other support services for students in
AEP’s (TEX 37.010(c)).

 State law does not address those strategies to be
used for routine student discipline. This is a matter
largely left to the local school district, its
administrators, and its teachers.
 Traditionally teachers and administrators have
exercised authority over students on the basis of
the common law doctrine of in loco parentis, “in
place of a parent.”
 While no hearing is required legally when using
routine disciplinary techniques, it seems wise to
inform the student of the infraction and give the
student a chance to explain.

 There have been efforts to eliminate corporal
punishment by judicial decree, but they have not
been successful.
 The Fifth Circuit followed up on its Cunningham
v. Beavers ruling by issuing a similar decisions
involving the paddling of a sixth grade special
education student by the school’s principal.
 While Texas leaves all decisions about corporal
punishment to local officials, it does impose
statewide restrictions on other practices of a
physical nature. Section 37.002I of the TEC
absolutely prohibits the use of “seclusion” by
public schools.

 Early cases indicated that at least some sort of
minimal due process was required. In Ector County
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 form the
National Honor Society and the Permian Pepettes.
 Student involvement with extracurricular activity is
further affected by the student’s status in school.
TEC 37.006(g) requires that students who are
removed to a DAEP also must be removed from
participation in or attendance at extracurricular
activities.

Courts Defer to Educators on Student Discipline Rules

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Courts Defer to Educators on Student Discipline Rules