Student Discipline

William Allan Kritsonis,

PhD
 Suspension v. Expulsion

TEC 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 suspendedthe local school district is
authorized to decide what types of offenses should
call for a suspension.
Suspension is designed as a short-term disciplinary
action. Under TEC 37.005 suspension is limited to
three days per offense, but there is no limit on the
number of suspensions that might be imposed on a
student, provided that each is for a separate
incident of misconduct. This applies only to out-of-
school suspension, not in-school suspension.
 Suspension v. Expulsion

Expulsion is the harshest penalty the school can impose,

and thus is reserved for only the most serious offenses and
is available only with students who are at least 10 years old.
TEC 37.007 spells out several types of conduct that require
expulsion from school. They are: (1) possession of weapons
(2) assaultive offenses
(3) arson
(4) murder, capital murder, criminal attempt to commit murder
or capital 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 first 7 must occur on school property or school-related
function, but retaliation is expellable no matter where it took
place.
 Suspension v. Expulsion

A district has discretion over the following offenses:

(1) serious or persistent misconduct while placed
in a DAEP
(2) drug or alcohol offenses, if not punishable as a
felony
(3) inhalant offenses
(4) criminal mischief if punishable as a felony.
Most students will be expelled from the school
programs (including DAEP) to a Juvenile Justice AEP
(JJAEP) or other school program.
Because a students property right to a public
education is being taken, the 14th amendment requires
that the student be afforded an appropriate level of due
process, although the Education Code does not tell us
how much process is due.
 Suspension v. Expulsion

37.009 provides
Before a student may be expelled under Section
37.007, the board or the boards designee must
provide the student a hearing at which the student
is afforded appropriate due process as required by
the federal constitution and which the students
parent or guardian is invited in writing to attend.
State law imposes two other requirements
(1) the student is entitled to be represented at an expulsion
hearing by some adult who can give guidance to the
student; this person is usually the parent or guardian, but
can be someone else, as long as it is not a district employee
(2) if an expulsion is ordered by the boards designee, then it
is appealable to the board, and then to the district court of
the county in which the school districts administrative office
is located.
 Suspension v. Expulsion

School districts can rely on student or staff witnesses,

and even read their written witness statements at an
expulsion hearing, without a right to cross-examine
by the accused student.
Courts have decided that such prerecorded
statements (considered hear-say in court) are
admissible in student discipline matters.
The minimum due process requirements for a long-
term expulsion consist of:
(1) oral and written notice of the charges against the student
(2) an explanation of the evidence
(3) an opportunity for the student to present his side of the
story.
 Suspension v. Expulsion

Reasons for denying the right to cross examine include:

(1) the fact that the administrators who investigate the
offenses are qualified to determine the truthfulness of
student accusers
(2) the fact that, if forced to testify, any students would fail
to come forward
(3) reasons associated with administrative convenience.
The best policy to follow when students are
caught in the act of breaking a school rule and
admit guilt is to give them notice of the rule
violation and an opportunity in the presence of
their parents or a representative to confirm their
admission of guilt in writing and to waive formal
due process rights.
 Suspension v. Expulsion

37.009 provides
Before a student may be expelled under Section
37.007, the board or the boards designee must
provide the student a hearing at which the student
is afforded appropriate due process as required by
the federal constitution and which the students
parent or guardian is invited in writing to attend.
State law imposes two other requirements
(1) the student is entitled to be represented at an expulsion
hearing by some adult who can give guidance to the
student; this person is usually the parent or guardian, but
can be someone else, as long as it is not a district employee
(2) if an expulsion is ordered by the boards designee, then it
is appealable to the board, and then to the district court of
the county in which the school districts administrative office
is located.
 Off-Campus Rules

Schools retain the same authority over students at school-sponsored

activities occurring off campus as they have when students are on campus.
According to TEC 37
students must be removed to a DAEP if they engage in conduct that
would be felonious under certain sections of the Texas Penal Code.
One factor that comes into play with regard to off-campus behavior is
the nature of the disciplinary punishment.
If the proposed sanction is a suspension from extracurricular
activities, rather than a suspension from school, the courts are much
more likely to support the school districts position. The courts have
consistently ruled that participation in athletics and other
extracurricular activities is a privilege rather than a right.
Therefore, where these activities are concerned, schools have more
authority to create and enforce rules, even those that apply off
campus.
A second key factor with regard to off-campus activity is whether or not
the school has some legitimate interest at stake; examples include the
use of the internet.
If the students activity moves beyond offensive to threatening
the school can assert its interest in maintaining safety by taking
disciplinary action.
 Off-Campus Rules

Killion v. Franklin Regional School District (2001)

a student composed a top 10 list listing the personal
and professional failings of the schools AD at his home
and he emailed it to others who printed and distributed
it at school. The school suspended the student and
removed him from the track team, but at regional court
the case was overturned and the court held that the
school had failed to show that the students actions
were materially disruptive to the education process.
JS, a Minor v. Bethlehem Area School District
A student created a website against his algebra
teacher that was threatening; the court decided that
the conduct was materially disruptive and a substantial
invasion of the rights of others and the students
expulsion was upheld.
 Due Process
Notice/hearing
There are 3 key concepts necessary to an
understanding of the due process clauses in
our Constitution:
(1) There must be some action of the state
generally speaking, actions by private entities do not
implicate the due process clause
(2) the state must have deprived the individual of
life, liberty, or property a person who sues over a
violation of due process must assert a property
interest or liberty interest
(3) the nature of the process due depends on the
severity of the deprivation.
 Due Process
In the case Dixon v. Alabama State Board of
Education, the court held that students at a public
college are entitled to fair notice of the rules they
were charged with breaking and a fair hearing
before they could be expelled and the court also
established what it considered to be the
components of fair notice and a fair hearing:
(1) the notice should contain a statement of the specific
charges and the grounds that, if proven, would justify
expulsion
(2) students should be given an opportunity to present to
the board of trustees or administrative officials of the
college their own defense against the charges, including
the right to call witnesses on their behalf
(3) students should be apprised of the results and findings
of the hearing in a report open to their inspection.
 Due Process
Goss v. Lopez deals with due process in
public schools.
In Meyer v. Austin (1999), the court
emphasized that due process must be
provided to the student, not the parents.
The greater the loss suffered by the
student, the more sympathetic courts are
likely to be to claims of lack of due process
and the courts do not appear very
sympathetic to disputes over a students
grades.
 Goss v. Lopez
In Ohio, 9 students were given a 10-day suspension from
school and the school principal did not hold hearings for the
affected students before ordering the suspensions.

The US Supreme Court concluded that due process is required

before a student can be suspended from school. Since the
deprivation of property imposed by the state is less harsh
in a case of short-term suspension, the process that is
due is much less burdensome.

In this case, the Court concluded that, because the state

provides compulsory schooling, even a short-term
suspension deprives the student of a property right and,
thus, requires due process. In cases of suspensions of 10
days or less, the Court ruled that due process requires
school officials to give the student informal notice of the
misbehavior and an opportunity to offer an explanation.
 Corporal Punishment

Corporal punishment continues to be legal in Texas and

also continues to be one of the few areas where local
control truly exists.
There is no state law regarding corporal punishment,
therefore the decisions are left to local school officials.
In Ingraham v. Wright, the Court ruled that corporal
punishment of public school students
(1) did not require any formal due process measures, such as
notice and a hearing
(2) under no circumstances could be considered cruel and
unusual punishment as that term is used in the Eighth
Amendment.
TEC 37.0021 absolutely prohibits the use of seclusion by
public schools.
Seclusion is defined as a technique in which a student is
confined in a locked box, locked closet, or locked room that is
designed solely to seclude a person and whose area is less
than 50 square feet.