William Allan Kritsonis, PhD

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 Boards
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 districts 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
 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 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; 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 officers 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 teachers
ability to communicate effectively with the
students in the class or with the ability of
the students classmates to learn; or
2. Whose behavior the teacher determines is
so unruly, disruptive, or abusive that it
seriously interferes with the teachers ability
to communicate effectively with the
student in the class or with the ability of the
students 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 students behavior is so unruly,
disruptive, or abusive that it seriously interferes
with a teachers ability to communicate
effectively with the students in a class, with the
ability of the students 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 departments
role in supervising and providing other support
services for students in AEPs (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
schools 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 students
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.