Student Discipline

William Allan Kritsonis, PhD

 Student Discipline

http://www.trutv.com/shows/principals_office/index.html
?pid=rRxmL8QHUST2G0fDX1siNkK_lohjcdDo
 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.
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.
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.
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.
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.
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)
 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.
 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.
 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%
 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.
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.
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.
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)
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.
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.
 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.