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Student Discipline in Texas Charter Schools

October 9, 2012 TCSA 2nd Annual Legal Summit
Joseph E. Hoffer Schulman, Lopez & Hoffer LLP 210-538-5385 Denise Nance Pierce
Texas Charter Schools Association 512-584-8272

Part I Student Code of Conduct

Student Code of Conduct
• One of the MOST IMPORTANT documents a charter school CAN and MUST develop • Required by Education Code 12.131: “The governing body of an open-enrollment charter school shall adopt a code of conduct for its district or for each campus.” (emphasis added) • Adopted by the Board of Trustees, so it has the full force of policy. • Should be posted at each campus and on the school’s website.

Essential Provisions
• Standards for student behavior • Prohibited behaviors and list possible consequences: o Detention, Suspension, Expulsion, etc. • Due process procedures for expulsion must be provided.

General Jurisdiction

A school may discipline a student: o For any violation of the Code committed while a student is • On school property; • Attending any school-related or school-sponsored activity, so long as the student is under the direction of a school employee; • On the school property of another Texas school district; and • As otherwise prescribed in the Code of Conduct. o Attending another school’s school-sponsored or school related activity; o When a school employee or volunteer is a victim of retaliation no matter when or where it takes place; or o When a felony or certain other crimes are committed.

Offenses & Consequences
• As defined in Code of Conduct, but customarily:
o Level I – Generally minor offenses that result in detention, in-school suspension, or other minor disciplinary action o Level II – More serious offenses that result in out-of-school suspension for three-five days o Level III – Most serious offenses that result in out-of-school suspension for five or more days, or expulsion

Disciplinary Consequences
• Consequences for misconduct may include, without limitation:
o o o o o o o o Withdrawal of Privileges Corporal Punishment (See Your Lawyer First!) Parent-Teacher Conferences In-School Suspension or Detention Out-of-School Suspension Expulsion Referral to an Outside Agency and/or legal authority Or as otherwise provided in the Code of Conduct

Note on Corporal Punishment
• Education Code 37.0011 allows school districts to administer corporal punishment if the Board adopts a policy allowing corporal punishment, unless a parent provides a written statement prohibiting the use of corporal punishment • While 37.0011 does not apply directly to charter schools, some charters have adopted a Board policy allowing corporal punishment
o If a charter school permits corporal punishment, it should allow parents an opportunity to provide written notification prohibiting the use of such punishment and take other precautions—consult your school attorney.

Factors to Consider
• When setting out consequences for Code of Conduct violations, schools can consider:
o o o o o How serious was the offense? Was the student’s intent to cause harm? Was self defense involved? How old is the student, and what is the student’s grade level? How often has the misbehavior occurred, and what is the student’s prior disciplinary history? o How did the misconduct affect the school environment? o Does the student have a disability that impairs his or her capacity to appreciate the wrongfulness of the conduct? o Is Manifestation Determination Review necessary (SPED/504)?

Use of Confinement, Restraint, Seclusion, and Time-out
• Restraint is to be used only in an emergency and shall be:
o o o o Limited to the use of reasonable force necessary Discontinued at the point at which the emergency no longer exists Implemented to protect the health and safety of the student and others Implemented so as not to deprive the student of basic human necessities

• Employee training • Written documentation when implemented • Note: A student with a disability who receives special education services under Subchapter A, Chapter 29, may not be confined in a locked box, locked closet, or other specially designed locked space as either a discipline management practice or a behavior management technique

Use of Confinement, Restraint, Seclusion, and Time-out, cont.
• A school employee or volunteer or an independent contractor may not place a student in seclusion. • Use of time-out
o Physical force or threat of physical force shall not be used to place a student in time-out o Time-out may only be used in conjunction with an array of positive behavior intervention strategies and techniques and must be included in the student's IEP and/or BIP if it is utilized on a recurrent basis to increase or decrease a targeted behavior o Use of time-out shall not be implemented in a fashion that precludes the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP

What Does This Mean?
• It’s always good to avoid the Mike Leach discipline system: i.e, the “shed”

Part II Suspension and Expulsion Process

• Student engages in conduct identified in the Code of Conduct as potentially leading to suspension • School administrator conducts an informal conference with the student
o Student given an opportunity to explain his or her conduct o No other procedural protections are required

• Administrator makes decision whether or not to suspend • Notify parents/guardians of suspension • No limit on the number of suspensions

• Students CANNOT BE EXPELLED for conduct that is not authorized by Education Code § 37.007 or specified in a charter school’s Code of Conduct • Thus, it is vital for a school to carefully consider what misconduct may result in expulsion • Expulsions can also lead very quickly to federal or state court, so having a sufficient Code of Conduct, Expulsion Procedures, and following these is critical

Expellable Offenses
• Generally two types of expellable offenses:
• Mandatory Expulsion Offenses: set conduct for which a student must be expelled • Permissive Expulsion Offenses: set conduct for which a student may be expelled

• The Code of Conduct must provide notice of how expellable offenses are categorized • Charter Schools have some flexibility in this categorization.

Gun-Free Schools Act
• Federal law creates a mandatory expulsion offense for students who possess certain firearms on or near campus • Students who violate this law must generally be expelled from the regular school program for no less than one year
o However, the Superintendent may modify the length of an expulsion on a case-by-case basis o Schools must also take into account the provisions of the IDEA for special education students

Expulsion Process
• Conduct a hearing prior to taking any expulsion action • Notify parents of proposed expulsion and date and time of hearing and of their rights described below: • At the hearing the student:
o o o o o May be present Shall have an opportunity to present evidence Shall be apprised and informed of the school’s evidence May be accompanied by parents May be represented by an attorney

Appealing an Expulsion Decision
• Either a student or the student’s parent may appeal an expulsion decision to the Board • Discipline need not be deferred pending the outcome of an appeal • Board’s decision is final and cannot be appealed further • Charter regulations “require” access to the Board of Directors for an appeal.

Emergency Expulsion
• Be sure to include in Code of Conduct:
o A principal may order the immediate expulsion of a student if the principal “reasonably believes” that the action is necessary to protect persons or property from imminent harm. o But, the school must provide due process before the expulsion becomes “final.”

Special Rules for Special Education Students
• If a student is special education, and the proposed placement is more than ten (10) school days, which will result in a change in placement, a manifestation determination review ARD must be held before the placement can be made. Two questions:
o Was the conduct in question caused by or did it have a direct and substantial link to the child’s disability? o Was the conduct in question a direct result of district’s failure to implement the student’s IEP?

Special Rules for Special Education Students cont.
• If the answer to those questions is “no,” the student can be treated as a general education student for disciplinary purposes. • If the answer to either of those questions is “yes,” the conduct is deemed a manifestation then a functional behavioral assessment must be conducted and a behavior intervention plan implemented. If a BIP has been implemented, it must be reviewed and modified as necessary.

Special Rules for Special Education Students - Exceptions
• 45 day rule
o A student may be removed to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the student’s disability if: • The student carries or possesses a weapon to or at school, or at a school function • The student knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, or on school premises • The student has inflicted serious bodily injury upon another person while at school or on school premises

Special Education: Manifestation Determination Review (MDR)
• The Review • Interpreting the MDR analysis • Determination that Behavior was a Manifestation

Special Education: Educational Services During Any Period of Removal
• Removal of 10 days or less – no educational services are required • Removal exceeding 10 days that constitutes a change of placement – the student’s ARD Committee determines the services
that will be provided and where those services will be provided

• Removals exceeding 10 days cumulatively, but no change in placement – School personnel and at least one of the child’s
teachers determine the extent to which services are needed

• Determination of setting - for disciplinary placements that would

result in a change of placement; the interim alternative educational setting shall be determined by the ARD Committee

Special Education: Placement During Appeals
• Authority of a Hearing Officer – in making a determination during an appeal, a hearing officer may order a change in placement of a child with a disability • Multiple 45 day placements • Expedited Due Process Hearings

Disciplinary History and Admission/Enrollment Decisions
• Open enrollment charter schools must generally admit all students who live within the school’s stated boundaries and meet all legal standards for enrollment in a public school. • Because of this, charter schools cannot adopt admissions and enrollment policies that “screen out” students with merely any type of disciplinary history.

o So, we can’t keep Timmy out of our charter school because he got in trouble at his previous school for “liberating” a frog that was supposed to be used in a science experiment.

Disciplinary History and Admission/Enrollment Decisions
o But, a school’s charter may provide for the exclusion of a student who has a documented history of a criminal offense, a juvenile court adjudication, or discipline problems under Subchapter A, Chapter 37, Education Code. o As for the discipline problem exclusion, these are significant infractions in a school district, not just “any” discipline issue.

Expulsion and PEIMS Reporting
o A student is generally withdrawn from the school he or she was attending on the date that expulsion takes effect o If a student who has been expelled enrolls in another school district or charter school before the period of expulsion is ended, the receiving school may continue the expulsion or allow the student to enroll and attend classes o Appropriate PEIMS coding for disciplinary actions is generally found in Appendix E of the 2012-2013 PEIMS Data Standards o For Chapter 37 offenses leading to expulsion, PEIMS code for Expulsion applies. o For charter school’s “local” Code of Conduct expulsion, i.e., non-Chapter 37 Expulsion, PEIMS expulsion code is not applicable.

Part III Protecting Free Speech Rights and Freedom of Religion for Students

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508–13 (1969)
• Students do not, "shed their constitutional rights when they enter the schoolhouse door." But it is also the case that school administrators have a far greater ability to restrict the speech of their students than the government has to restrict the speech of the general public. Student speech cases require a balancing of the legitimate educational objectives and need for school discipline of administrators against the First Amendment values served by extending speech rights of students

School Prayer
All prayer in public schools is not considered unlawful
Only school-sponsored or school organized prayer is prohibited School officials may not organize, mandate, or participate in student religious activities

• Students themselves are free to pray alone or in groups, so long as the following criteria are met:
• • • • They are not disruptive The prayer does not infringe on the rights of others The prayer is voluntary and student initiated Examples: o Meet me at the flag pole o Bible groups that meet at lunch

Students and Religious Garb
• Students whose religion requires the wearing of certain clothing • A student’s parent may choose for the student to be exempt from a required school uniform if the parent provides a statement that, as determined by the Board, states a bona fide religious or philosophical objection to the requirement

Part IV Social Media Challenges

Children’s Internet Protection Act (CIPA)
• Applies to schools receiving E-Rate funding • Schools must block or filter Internet access to pictures that are: (a) obscene; (b) child pornography; or (c) harmful to minors • Internet safety policies must include monitoring the online activities of minors. Does your school have CIPA policy?

The Protecting Children in the 21st Century Act
• Schools must provide for educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms, and cyberbullying awareness and response.

• Cyberbullying involves the use of information and communication technologies to support deliberate, repeated, and hostile behavior by an individual or group, that is intended to harm others. • "Cyberbullying" is when a child, preteen or teen is tormented, threatened, harassed, humiliated, embarrassed or otherwise targeted by another child, preteen or teen using the Internet, interactive and digital technologies or mobile phones. • It has to have a minor on both sides, or at least have been instigated by a minor against another minor. Once adults become involved, it is plain and simple cyberharassment or cyberstalking. Adult cyber-harassment or cyberstalking is never called cyberbullying.

Cyberbullying cont.
While it does not specifically apply to charter schools, Texas Education Code Section 37.001(a); Student Code of Conduct: requires each independent school district in Texas to have a local policy that:
• (7) prohibits bullying, harassment, and making hit lists and ensures that district employees enforce those prohibitions; and

and Section 37.0832 defines bullying as:

engaging in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district and that: o (1) has the effect or will have the effect of physically harming a student, damaging a student's property, or placing a student in reasonable fear of harm to the student's person or of damage to the student's property; or o (2) is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.

• What is Sexting:
o The sending or receiving of sexually explicit or sexually suggestive images or video via a cell phone o Can also be done via social networking, twitter and chat rooms o Penal Code Section 43.261 makes sexting between minors a misdemeanor instead of a felony child pornography charge

Responding to a Sexting Incident
• Plan Ahead
o Have a written protocol for handling these incidents, clarifying possible school disciplinary actions. o Educate students and parents on the emotional and legal implications of sexting. o Institute a policy prohibiting or limiting the use of cell phones during the school day. o Schedule an immediate and confidential meeting with a counselor or other health professional. o Contact the student’s parents.

• Secure the Student

Responding to a Sexting Incident Cont…
• Contact the appropriate law enforcement or Child Protective Services department. • The school must attempt to diffuse a quick moving situation in which the image can be spread to hundreds in mere seconds.

Handling Sexting Images
• Penal Code Section 43.26 protects school administrators from felony child pornography charges when the image

o is possessed in good faith solely as a result of an allegation o is shown to law enforcement or other school administrators only as appropriate based on the allegations o the administrator took reasonable steps to destroy the material within an appropriate period following the allegation

Discipline for Behavior Off-Campus
• Within recent years, the Tinker standard has been applied by federal courts around the country to include student behavior portrayed on the Internet, even when the conduct occurs off school property

Discipline for Behavior Off-Campus cont.
• For example, a federal appeals court in New York upheld the discipline of a student that created an AOL Instant Message icon that portrayed the killing of one of his teachers. Applying the Supreme Court’s Tinker analysis, the court found that despite the fact that the icon was created off campus, it was “a reasonably foreseeable risk that the icon would come to the attention of school authorities and that it would ‘materially and substantially disrupt the work and discipline of the school.’”

Discipline for Behavior Off-Campus cont.
• Another federal appeals court considered a student discipline issue where a student posted a vulgar and misleading message about a school event on a publicly accessible Internet blog. Again the court upheld the school’s disciplinary action despite the fact that the student posted the blog off school grounds.

Discipline for Behavior Off-Campus cont.
• In California, a student was suspended and transferred to another school after posting a slideshow that portrayed the killing of his English teacher on YouTube. The court upheld the school’s action, applying the Tinker analysis, noting that even though the student created the slideshow as a joke, “it would appear reasonable, given the violent language and unusual photos depicted in the slide show, for school officials to forecast substantial disruption of school activities.”

Discipline for Behavior Off-Campus cont.
• So, what can be done? • Refine Student Code of Conduct to be more specific on off-campus behaviors. • Cyber: develop an ACCEPTABLE USE POLICY containing guidelines for:
o Monitored use – no expectation of privacy when using School’s electronic communication system and/or equipment. o Vandalism – includes uploading or creating computer viruses o Network Etiquette – appropriate language, confidentiality, copyright compliance o Explain that conduct on the Internet away from school can constitute a violation of school policy o Consequences for violating the policy

Cell Phones and Other Electronic Devices
• Schools may adopt a policy prohibiting student possession of electronic communication devices, and allowing subsequent confiscation of a telecommunications device.

Cell Phones and Other Electronic Devices
• But, several courts have held that the confiscation and search of a student’s cell phone by a public school may, in some circumstances, constitute an “unreasonable search and seizure” under the Fourth Amendment. • “Reasonableness” of a confiscation and search likely turns on:
o Is the search reasonable at the inception? o Is the search reasonable in scope?

Cell Phone Searches
• Reasonable at the inception:
o There are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.

• Reasonable in scope:
o The measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

Cell Phone Searches Case Study
In one case, a Mississippi school instituted a policy prohibiting students from possessing or using cell phones at school. • A teacher observed a student retrieving text messages during class, and confiscated the phone. The teacher opened the phone and began scrolling through the student’s pictures. In several pictures, the student appeared to be flashing gang signs and holding a BB gun. • The student was subsequently expelled for constituting a “threat to school safety.” • A federal court in Mississippi upheld the disciplinary action and found no violation of the student’s Fourth Amendment rights. • The court expressed “serious concerns” about the school’s actions, but ultimately decided the confiscation and search of the student’s cell phone was justified at its inception and reasonable under the circumstances: o The phone constituted contraband when it was brought on campus, and the student increased his chances of being caught with contraband when he used the phone during class. o It was reasonable to search the phone to determine to what end the student was improperly using the phone. The student could have been engaging in some form of cheating or communicating with another student, who would also be subject to discipline for improper cell phone usage.

Federal Stored Communications Act
• Makes it an offense to intentionally access, without authorization, a facility through which an “electronic communication” service is provided or to intentionally exceed an authorization to access that facility. • A cell phone search that reveals voice mail, email and texts does fall within the scope of the Act, but it is uncertain whether other cell phone content (call logs, pictures, etc.) does.

Federal Stored Communications Act Cont.
• A Pennsylvania Court concluded that stored voice mail and text messages were covered by the state’s equivalent to the SCA, but the phone number directory and call log fell outside the scope of the statute.


Contact Us
Schulman, Lopez & Hoffer, L.L.P. 517 Soledad Street San Antonio, Texas 78205 Texas Charter Schools Association 700 Lavaca Street Suite 930 Austin, Texas 78701 Joe Hoffer ph. 210.538.5385 Denise Nance Pierce ph. 512.584.8272