William Kritsonis, School Law, Ch 8 Student Discipline

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Student Discipline

• William Allan Kritsonis, PhD

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Student Discipline

• http//www.trutv.com/shows/principals_office/index
  .html?pidrRxmL8QHUST2G0fDX1siNkK_lohjcdDo

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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.

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Guidelines for Rule Making

• Rules are necessary for society to functionrules
  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.

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Guidelines for Rule Making

• Schools still must bear the burden of proving
  legal authority of school rules when they touch
  on constitutionally or statutorily protected
  behavior.
• Rules Must Have a Rational Purpose
• People are more inclined to follow rules
  if they can see that rules are realistic and
  provide a safe environment.
• Ask whether the rule in question in really
  necessary to prevent disruption and to safeguard
  the rights of others.

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Guidelines for Rule Making

• The Meaning of Rules Must Be Clear
• Rules that are so vague as to be
  meaningless are self-defeating.
• A way to improve clarity is to keep them
  short and comprehensive by including several
  diverse examples to illustrate meaning.
• Rules That Relate to Protected Behavior Must Be
  Carefully Developed.
• Rules that pertain to constitutionally or
  statutorily protected behavior must be drawn with
  special care so as not to suppress the exercise
  of these rights.
• Legal validity comes into play most often
  with these rules. Legal validity relates
  primarily to issues of vagueness and overbreadth.
• -- Legal Validity executed with legal
  proper authority and formalities.
• -- Vagueness not clearly expressed.
• -- Overbreadth the rules are too broad
  and penalizes protected behavior.

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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.

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Guidelines for Rule Making

• Rules Must Be Consistently Enforced
• Unless rules are enforced, they lose their
  influence as behavior guides.
• School administrators encounter practical
  and legal difficulty when they inconsistently
  enforce rules.
• This does not mean that a zero tolerance
  policy is the only way to go, the mindless
  application of zero tolerance policies has led
  to some embarrassing situations for school
  administrators. Late night comedians have a
  field day at the expense of some underpaid and
  overworked assistant principals.
• Most school districts in Texas have the
  following language in local policy, which is
  taken from the Texas Association of School Boards
  (TASB)

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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 students age
• C. The frequency of misconduct
• D. The students 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 districts policy or
  code of conduct. Inconsistent enforcement
  creates problems when the inconsistency is based
  on favoritism and toward certain students.

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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 legislatures 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.

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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 its 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

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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.

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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.

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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 classroomtemporarily
• 1. Teacher removal for assistance send
  students to the principals 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.

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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)

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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.

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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.

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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 parents.