Regular School

Discipline,
Suspension, and
Expulsion
William Allan Kritsonis, PhD
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Regular Student
Discipline
Expulsion-
Suspension
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Regular Student Discipline
Every Texas school district must create a
foundation for student discipline by adopting a
student code of conduct that establishes clear
standards for student behavior. The student code
of conduct will often reflect the discipline policies
and related procedures that a district has in place
to manage student behavior in class and on
school property. Discipline policies and
procedures typically include due process for
students who have violated the student code of
conduct and for students who are placed in
alternative programs outside the regular education
setting.
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 Grounds for: Nondisabled
students**Removal by teacher
A teacher may send a student to the principal to maintain
effective classroom discipline. (Sec. 37.002(a))

A teacher may remove a student from class after documenting

repeated interference with the teachers ability to
communicate with the class OR if the student engages in
behavior so unruly, disruptive, or abusive that it seriously
interferes with instruction. (Sec. 37.002(b))

Following removal, the principal may place the student in a

disciplinary alternative education program (DAEP), in-school
suspension, or another teachers class.
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Grounds for: Nondisabled
students**Removal by teacher cont
A teacher must remove from class and send to
the principal any student who engages in
conduct for which the student must be placed
in a DAEP or for which the student may or
must be expelled. (Sec. 37.002(d); see also Secs.
37.006 and 37.007)

A conference must be held within three class

days of the removal, during which time the
student may not be returned to the regular
classroom.
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Grounds for: Nondisabled
students**Removal by teacher cont
A removed student cannot be returned to the
teachers classroom over the teachers
objection unless the Placement Review
Committee finds that the placement is the best
or the only alternative. If the teacher removed
the student from class because the student has
engaged in an offense of assault causing
bodily injury against the teacher, the student
may not be returned to the teachers class
without the teachers consent. The teacher may
not be coerced to consent. (Sec. 37.002(c) and
37.002(d)).
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Suspension
A student may be suspended for engaging in
any conduct that could place the student in a
DAEP.
Additional grounds for suspension may be developed
by the district and must be defined in the districts
Student Code of Conduct.
A student may be suspended for up to three
days at a time

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Removal to Disciplinary Alternative
Education Program
A school district must place in a DAEP any student who engages in
the following conduct that occurs on or within 300 feet of school
property or while the student is attending a school-sponsored or
school-related activity on or off school property:
Conduct punishable as a felony;
Offense constituting terroristic threat, assault that causes injury, or
false alarm or report;
Transfers/possesses/uses or is under the influence of marijuana,
controlled substances, or dangerous drugs;
Transfers/possesses/uses or commits a serious offense while under
the influence of alcohol;
Conduct containing the elements of abuse of volatile chemicals;
Conduct containing the elements of public lewdness or indecent
exposure.
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Removal to Disciplinary Alternative
Education Program Cont
A student must be placed in a DAEP if, while off campus and not in
attendance at a school-sponsored or school-related activity, the
student receives deferred prosecution for offenses listed in Title 5 of
the Texas Penal Code, i.e., violent offenses against the person; a court
or jury finds that the student has engaged in delinquent conduct or
conduct prohibited in Title 5; or the superintendent has a reasonable
belief that the student engaged in conduct defined as a Title 5 felony
offense.

A student who is required to register as a sex offender must be placed

in a DAEP or JJAEP for at least one semester.

A student must be placed in a DAEP for engaging, whether or not on

school property or at a school event, in conduct constituting
retaliation, i.e., harming or threatening to harm by an unlawful act a
school employee on account of the employees job-related duties.

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Removal to Disciplinary Alternative
Education Program Cont
A student may be placed in a DAEP if the student, while off
campus and not in attendance at a school-sponsored or school-
related activity:
Has engaged in (nonviolent) conduct defined as a felony offense OTHER
than those defined under Title 5, Texas Penal Code (violent conduct), and
the superintendent has a reasonable belief that the student has engaged in
such conduct; and
The continued presence of the student in the regular classroom threatens
the safety of other students or teachers or will be detrimental to the
educational process.

The board of trustees of a school district, or the boards designee,

after an opportunity for a hearing may elect to place a student in a
DAEP if the student:
Receives deferred prosecution for conduct defined as a felony;
Engages in delinquent conduct defined as a felony; or
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Removal to Disciplinary Alternative
Education Program Cont
If the board or the boards designee determines that the students presence in
the regular classroom:
Threatens the safety of other students or teachers;
Will be detrimental to the educational process or is not in the best interests of
the districts students.

When a student is removed to a DAEP, a conference is required within three

days of removal. The school board or its designee must review a students
status, including academic status, at least every 120 days. For high school
students, progress toward graduation requirements must be reviewed and a
specific plan developed.

An elementary school student may not be placed in a DAEP with

nonelementary school students.

Students younger than age 6 may not be removed to a DAEP, unless they bring
a firearm to school.

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Expulsion or Removal to DAEP, JJAEP

A student may be expelled or placed in a DAEP or JJAEP if the

student has received deferred prosecution for conduct defined as
a felony offense in Title 5 of the Texas Penal Code; has been
found by a court or jury to have engaged in delinquent conduct or
conduct defined as a felony offense in Title 5 of the Texas Penal
Code; is charged with engaging in conduct defined as a felony
offense in Title 5 of the Texas Penal Code; has been referred to a
juvenile court for allegedly engaging in delinquent conduct or
conduct defined as a felony offense in Title 5 of the Texas Penal
Code; has received probation or deferred adjudication for a
felony offense under Title 5 of the Texas Penal Code; has been
convicted of a felony offense under Title 5 of the Texas Penal
Code; or has been arrested for or charged with a felony offense
under Title 5 of the Texas Penal Code. (NOTE: Certain instances
described here require mandatory removal to DAEP.)
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 Expulsion
A student must be expelled for committing any of the
following serious offenses while on school property or while
attending a school-sponsored or school-related activity:
Uses, exhibits, or possesses a firearm, illegal knife, club, or other
prohibited weapon; or
Commits the elements of any of the following offenses: aggravated
assault, sexual assault, aggravated sexual assault, arson, murder,
indecency with a child, aggravated kidnapping, aggravated robbery,
manslaughter, criminally negligent homicide, or drug- or alcohol-
related offenses punishable as a felony.
A student must be expelled for committing any of the above
offenses in retaliation against a school employee on or off
school property. 13
 Expulsion cont
A student may be expelled if, while on or within 300 feet of school
property or while attending a school-sponsored or school-related
event, the student:
Sells/gives/delivers/possesses or is under the influence of marijuana, controlled
substances, dangerous drugs, or alcoholic beverages; or
Engages in conduct containing the elements of offenses related to abuse of
volatile chemicals; or
Engages in serious or persistent misbehavior occurring while placed in a DAEP;
or
Assaults and causes injury to an employee or volunteer, including in retaliation
for the employees or volunteers duties in the district or commits a terroristic
threat against a teacher; or
Engages in conduct containing the elements of deadly conduct; or
Uses, exhibits, or possesses a firearm, illegal knife, club, or other prohibited
weapon; or
Engages in conduct containing the elements of aggravated assault, sexual
assault, aggravated sexual assault, arson, murder, indecency with a child,
aggravated kidnapping, aggravated robbery, manslaughter, criminally negligent 14
homicide, or drug- or alcohol-related offenses punishable as a felony.
 Expulsion cont
A student may be expelled from school by the
district in which the student attends school if the
student while on school property of another
district in this state or while attending a school-
sponsored or school-related activity of a school
in another district in this state:
Uses, exhibits, or possesses a firearm, illegal knife, club, or
other prohibited weapon; or
Engages in conduct containing the elements of aggravated
assault, sexual assault, aggravated sexual assault, arson,
murder, indecency with a child, aggravated kidnapping,
aggravated robbery, manslaughter, criminally negligent
homicide, or drug- or alcohol-related offenses punishable as
a felony. 15
Expulsion cont
A student may be expelled if the student:
Engages in conduct containing the elements of felonious
criminal mischief; or
Engages in school-related conduct involving false report or
alarm, or terroristic threat.
Students under age 10 cannot be expelled, although they can
be sent to DAEPs.
A teacher must be informed by the district if one of the
teachers students has committed any of the above offenses.
(NOTE: A teacher must keep this information confidential,
or risk certificate sanctions.)
A student must be given a hearing before expulsion occurs.16
Emergency removal
A principal (or designee) may order the immediate removal of
a student to a DAEP or may order expulsion if the students
behavior is such that it seriously interferes with the teachers
ability to communicate with the class or with the operation of
the school, or if action is necessary to prevent harm to persons
or property.

The student shall receive oral notice of the reason for the
action at the time of the emergency placement. A proper due
process hearing must occur within a reasonable time after the
placement or expulsion.

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 Nevares v. San Marcos C.I.S.D.
One court case related to School Discipline-Suspension and Expulsion
would be Nevares v. San Marcos C.I.S.D. In this case, given by The Educators
Guide to Texas School Law, it states that Timothy Nevares was among the first
students assigned t o DAEP after the adoption of the mandatory placement
provisions in Chapter 37. Nevares was placed in DAEP based on off-campus
conduct. His suit against the San Marcos C.I.S.D. was followed closely by
educators in Texas, since it was the first major court challenged to some of the
more controversial aspects of Chapter 37. Though Nevares had some success at
district level, he struck out before the Fifth Circuit. Nevares had complained of a
lack of due process, alleging that the school had tossed him into an inferior
program without a proper hearing. But the Fifth Circuit ruled that no process
was due, because the student was not deprived of property or liberty. Timothy
Nevares was not denied access to public education, not even temporarily. He was
only transferred from one school program to another with stricter discipline
Since no deprivation occurred, no process of any kind was due. In other words,
as far as federal law is concerned, students assigned to DAEP are not entitled to
any kind of hearing, not even an informal type hearing. This would appear to
close the door to suits alleging a violation of federal due process based on DAEP 18
assignments.
 Aledo I.S.D. v. Reese
Also stated in The Educators Guide to Texas School Law,
is another court case that relates to School Discipline-
Suspension and Expulsion was Aledo I.S.D. v. Reese, in this
case, a student was placed in a DAEP due to possession of a
shotgun in his truck on the school parking lot after a weekend
hunting trip. The student filed suit, and a state district judge
issued an injunction, ordering the school to readmit the
student to the regular school program. The court of appeals
read TEC 37.0009(b) (Any decision of the board or the boards
designee under this subsection is final and may not be
appealed) and declared that it means what it says--- DAEP
orders may not be appealed beyond the school board.
Therefore, the state district judge should not have even heard
the case. The injunction was issued erroneously and was void.
A second court of appeals reached exactly the same conclusion 19

in Hankins v. P.H., as next friend of P.J.H.

 Goss Case
One last case dealing with school discipline
suspension and expulsion is the Goss case. In this
case the procedures that must accompany expulsion
are more extensive than those involved in suspension
or removal to a disciplinary alternative education
program. Since the students property right to a
public education is being taken, The Fourteenth
Amendment requires that the student be afforded an
appropriate level of due process. In the Goss case the
Courts emphasized the informality of what was being
requiredless than a fair minded school principal
would impose upon himself in order to avoid unfair
suspension.
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 RESOURCES

Walsh, J., Kemere, F., & Maniotis, L. (2005). The Educators Guide to
Texas School Law. Austin: University of Texas Press.

Goldstein, B. (2001). Chapter 37: The basic for student discipline in

Texas public school law. [On-line]. Available: www.blgpclaw.com

Idea Publications Series. (2003) Suspension and expulsion at a glance.

[On-line]. Available: www.idea.gaseis.ucla.edu

Education Law School. (2008). Law school suspension and expulsion.

[One-line]. Available: www.madufflaw.com

Especially for Parents. (2005). State suspension/expulsion laws. [On-

line] Available: www.aaps.k12mi.us/aaps.forparents

Student Discipline in Governement School. (2006). Suspension and

Expulsion of School Procedures. [On-line]. Available:
www.det.nsw.edu
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Texas Teacher Law. (2007). Student discipline or free speech