1. STUDENT DISCIPLINE UNDER CHAPTER 37 OF THE TEXAS EDUCATION CODE
Presented by:
David B. Hodgins
Thompson & Horton LLP

2. The Board of Trustees of Each School District Must Adopt . . .
A Student Code of Conduct

3. Student Codes of Conduct
Establishes standards of student conduct
Specifies circumstances for removals
Standards for removals to DAEPs
Outlines conditions for suspensions or expulsions
Specify whether consideration is given to self-defense
Specify whether consideration is given to intent or lack of intent at the time the student engaged in the conduct;

4. Student Codes of Conduct - Continued
Specify whether consideration is given to a student's disciplinary history
Specify whether consideration is given to a disability that substantially impairs the student's capacity to appreciate the wrongfulness of the student's conduct
Provide guidelines for setting the length of a term of DAEP removal and expulsion

5. Student Codes of Conduct - Continued
Prohibit bullying, harassment, and making hit lists and ensure that district employees enforce those prohibitions
Provide, as appropriate for students at each grade level, methods, including options, for:
Managing students in the classroom and on school grounds;
Disciplining students; and
Preventing and intervening in student discipline problems, including bullying, harassment, and making hit lists.

6. Bullying Prevention Polices and Procedures TEC 37
Bullying Prevention Polices and Procedures TEC (New Definition)
"Bullying" means 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 that:
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
2) is sufficiently severe, persistent, or pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.

7. Bullying Prevention Polices and Procedures TEC 37
Bullying Prevention Polices and Procedures TEC (New Definition)
Conduct described in the definition of “bullying" is considered bullying if the conduct:
1) exploits an imbalance of power between the student perpetrator and the student victim through written or verbal expression or physical conduct; and
2) interferes with a student's education or substantially disrupts the operation of a school.

8. Board of Trustees must Adopt Policies and Procedures regarding Bullying
prohibits the bullying of a student;
prohibits retaliation against any person, including a victim, a witness, or another person, who in good faith provides information concerning an incident of
establishes a procedure for providing notice of an incident of bullying to a parent or guardian of the victim and a parent or guardian of the bully within a reasonable amount of time after the incident;
 establishes the actions a student should take to obtain assistance and intervention in response to bullying;

9. Board of Trustees must Adopt Policies and Procedures regarding Bullying
sets out the available counseling options for a student who is a victim of or a witness to bullying or who engages in bullying;
establishes procedures for reporting an incident of bullying, investigating a reported incident of bullying, and determining whether the reported incident of bullying occurred;
prohibits the imposition of a disciplinary measure on a student who, after an investigation, is found to be a victim of bullying, on the basis of that student's use of reasonable self-defense in response to the bullying; and
requires that discipline for bullying of a student with disabilities comply with applicable requirements under federal law, including the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.).

10. Victim of Bullying Transfer
On the request of a parent or other person with authority to act on behalf of a student who is a victim of bullying, the board of trustees of a school district or the board's designee shall transfer the victim to:
1) Another classroom at the campus to which the victim was assigned at the time the bullying occurred; or
2) A campus in the school district other than the campus to which the victim was assigned at the time the bullying occurred.
Note: A school district is not required to provide transportation to a student who transfers to another campus.

11. Harassment
"Harassment" means threatening to cause harm or bodily injury to another student, engaging in sexually intimidating conduct, causing physical damage to the property of another student, subjecting another student to physical confinement or restraint, or maliciously taking any action that substantially harms another student's physical or emotional health or safety.

12. Hit List
"Hit list" means a list of people targeted to be harmed, using:
A firearm, as defined by Section 46.01(3), Penal Code;
A knife, as defined by Section 46.01(7), Penal Code; or
Any other object to be used with intent to cause bodily harm.

13. Discipline of a Student With a Disability
In accordance with (b-1), a student who is enrolled in a special education program may not be disciplined for conduct meeting the definition of bullying, harassment, or making hit lists until an ARD committee meeting has been held to review the conduct.

14. Types of Disciplinary Options
Minor Offenses
To be set out in Student Code of Conduct
Include categories of misconduct and related punishment

15. TEC 37.0011 Corporal Punishment
If the board of trustees adopts a policy under which corporal punishment is permitted as a method of student discipline, a district educator may use corporal punishment to discipline a student unless the student's parent or guardian or other person having lawful control over the student has previously provided a written, signed statement prohibiting the use of corporal punishment as a method of student discipline.

16. TEC 37.0011 Corporal Punishment
Parent or guardian or other person having lawful control over the student must provide a separate written, signed statement each school year to prohibit corporal punishment.
Parent or guardian or other person having lawful control over the student may revoke the statement at any time

17. Texas Penal Code 42.01 (f) Limits Certain Student Offenses
Creates an exception to the offense of disruption of class, and
the disruption or interference with the transportation of children on school or county owned vehicles, going to or from school,
if the student was in sixth grade or lower at the time the conduct occurred.

18. Types of Disciplinary Options
Suspension
Principal may suspend a student who engages in conduct identified in the student code of conduct adopted under Section as conduct for which a student may be suspended.
Suspension may not exceed three school days
No apparent limitation on the number of suspensions an individual student may receive
TIP: avoid any “stacking” of suspensions related to the same events

19. Time-Out, Restraint, and Seclusion
“Time-out” means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting:
That is not locked; and
From which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object

20. Time-Out, Restraint, and Seclusion
“Restraint” means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of a student’s body.

21. Time-Out, Restraint, and Seclusion
“Seclusion” means a behavior management 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
Contains less than 50 square feet of space

22. Time-Out, Restraint, and Seclusion
This section and any rules or procedures adopted under this section do not apply to:
A peace officer while performing law enforcement duties;
Juvenile probation, detention, or corrections personnel; or
An educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of a school district

23. Time-Out, Restraint, and Seclusion
A school district shall report electronically to the agency, in accordance with standards provided by commissioner rule, information relating to the use of restraint by a peace officer performing law enforcement duties on school property or during a school-sponsored or school-related activity. A report submitted under this subsection must be consistent with the requirements adopted by commissioner rule for reporting the use of restraint involving students with disabilities.

24. Removal to the Disciplinary Alternative Education Program
Mandatory Removals
Jurisdiction
While on school property
Within 300 feet of school property
While attending a school-sponsored or school-related activity (on or off property)
Certain off-campus felonies

25. Removal to the Disciplinary Alternative Education Program
Reasons for Mandatory Removal
Conduct punishable as a felony
Assault
Sale, delivery, possession, or use of marijuana, controlled substances, or a dangerous drug (not punishable as a felony)
Sale, delivery, possession, or use of alcoholic beverages (not punishable as a felony)

26. Removal to the Disciplinary Alternative Education Program
Reasons for Mandatory Removal
Abusable volatile chemicals
Public lewdness
Terroristic threat
Indecent exposure
Retaliation against school employee (on or off campus/not at school events)
False alarm

27. Tex. Penal Code Sexting
Penal Code violation for “sexting” for a minor to intentionally or knowingly:
promote by electronic means to another minor visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor produced the visual material or knew that another minor produced it; or
possess in electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced the visual material or knew that another minor produced the visual material

28. Tex. Penal Code Sexting
“Sexual conduct” would mean sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.
Defense to prosecution for possession or promotion of child pornography, if the actor was a law enforcement officer or a school administrator who:
possessed the visual material in good faith solely as a result of an allegation of sexting;
allowed other law enforcement or school administrative personnel to access the material only as appropriate based on the allegation; and
took reasonable steps to destroy the material within an appropriate period following the allegation of sexting.

29. Removal to the Disciplinary Alternative Education Program
Title V Felony Mandatory Removals
Off Campus/Not at School Event
Deferred prosecution for Title V felonies
Court or jury finds Title V felony conduct
Reasonable belief that student has engaged in Title V felony conduct

30. Some offenses listed are not punishable as a felony in all situations
Title V Felonies
Some offenses listed are not punishable as a felony in all situations
Murder, manslaughter, and capital murder
Kidnapping (criminally negligent & aggravated)
Indecency with a child
Assault (sexual & aggravated)
Injury to a child, elderly, or disabled individual

31. Some offenses listed are not punishable as a felony in all situations
Title V Felonies
Some offenses listed are not punishable as a felony in all situations
Abandoning or endangering a child
Deadly conduct
Terroristic threat
Aiding suicide
Aggravated robbery
Tampering with a consumer product

32. In forming the reasonable belief, superintendent may consider all available information, including notice from police.

33. Removal to the Disciplinary Alternative Education Program
Permissive Removals
A student may be placed in the DAEP if:
1) Reasonable belief of conduct away from school that would be a non-Title V felony; and
2) Continued presence of student either:
a) threatens safety; or
b) will be detrimental to the education process

34. Removal to the Disciplinary Alternative Education Program
Permissive Removals
The Education Code does not specify any other permissive reasons for removals
However, a school district may list its own reasons in its Code of Student Conduct
Not required to remove a student to a DAEP for off-campus conduct for which removal is required if the principal or other appropriate administrator does not have knowledge of the conduct before the first anniversary of the date the conduct occurred

35. Removal to the Disciplinary Alternative Education Program
No More Football
(or Cheerleading!)
The terms of a DAEP placement must prohibit the student from attending or participating in a school-sponsored or school-related activity.

36. DAEP Requirements
A school district shall offer a student removed to a DAEP an opportunity to complete coursework before the beginning of the next school year. The school district may provide the student an opportunity to complete the coursework through any method available, including a correspondence course, distance learning, or summer school. The district may not charge for the course

37. Commissioner DAEP Rules: 19 TAC 103.1201
Standards for operation of DAEPs
Assigning campus is campus of accountability for student performance
Student’s four-year graduation plan may not be altered
School day at least seven hours

38. Commissioner DAEP Rules: 19 TAC 103.1201
DAEP summer program can include non-DAEP students
Teacher to student ratio shall be 1-15
Staff training mandated
Transition procedures shall be established

39. TEC DAEP Requirements
A school district shall provide the parents of a student removed to a DAEP with written notice of the district's obligation to provide the student with an opportunity to complete coursework required for graduation. The notice must:
(1)  include information regarding all methods available for completing the coursework; and
(2)  state that the methods are available at no cost to the student.

40. House Public Education Committee Interim charge
Review and make recommendations on the effectiveness of Disciplinary Alternative Education Programs (DAEPs) and Juvenile Justice Alternative Education Programs (JJAEPs) in reducing students' involvement in further disciplinary infractions.
Determine the appropriate role of disciplinary alternative placements in promoting education achievement and how technology could be used to supplement education services.

41. House Public Education Committee Interim charge
Consider appropriate placements in DAEPs or JJAEPs and consistent funding models
Consider options for counties without a JJAEP or inefficiently few placements in a JJAEP.
Identify positive behavioral models that promote a learning environment for teachers to appropriately instruct while addressing any behavioral issues and enforcing student discipline.
Also note: Breaking Schools’ Rules Report;

42. Removal to the Disciplinary Alternative Education Program
Procedural Rights of the Student
Conference not later than 3rd day
At conference
Notice of reasons for removal
Explanation of basis for removal
Opportunity to respond

43. Removal to the Disciplinary Alternative Education Program
Procedural Rights of the Student
Removal beyond end of next grading period or 60 days of assignment, whichever is earlier
Notice and opportunity to participate in proceeding before Board or designee
Decision of Board or designee is FINAL!

44. Mandatory Expulsion for Serious Offenses
For students 10 and older . . .
Uses or possesses a firearm, knife, club, or prohibited weapon
Aggravated or sexual assault
Arson
Murder (plus attempt to commit )
Indecency with a child

45. Mandatory Expulsion for Serious Offenses - CONTINUED
For students 10 and older . . .
Aggravated kidnapping
Aggravated robbery
Manslaughter
Criminally negligent homicide

46. Mandatory Expulsion for Serious Offenses - CONTINUED
For students 10 and older . . .
Conduct involving drugs and alcohol, if conduct punishable as a felony
Retaliation against a District employee while engaged in expellable conduct on school property or at a school-related activity

47. Expulsion for Serious Offenses
All students, regardless of age, shall be expelled for bringing a firearm to school
(Federal Firearm Law)

48. Permissible Expulsions
Serious misbehavior while in a DAEP
Sale, possession, or use of marijuana, controlled substances, or alcohol
Abusable volatile chemicals
Criminal mischief
Terroristic threat
False alarm
Deadly conduct
Mandatory expellable conduct that occurs within 300 feet of school property

49. TEC (c)
Removes expulsion for persistent misbehavior while in a DAEP
Allows expulsion for misbehavior while in a DAEP only for “serious misbehavior” defined as:
(1)  deliberate violent behavior that poses a direct threat to the health or safety of others;
(2)  extortion, meaning the gaining of money or other property by force or threat;

50. TEC (c)
(3)  conduct that constitutes coercion, as defined by Section 1.07, Penal Code; or
(4)  conduct that constitutes the offense of:
(A)  public lewdness under Section 21.07, Penal Code;
(B)  indecent exposure under Section 21.08, Penal Code;

51. TEC 37.007(c) (C) criminal mischief under Section 28.03, Penal Code;
(D)  personal hazing under Section ; or
(E)  harassment under Section 42.07(a)(1), Penal Code, of a student or district employee.

52. Permissible Expulsions
Assault of a school district employee or volunteer while on school property or at a school related activity
Assault of a school district employee or volunteer in retaliation for or as a result of the person’s employment or association with a school district without regard to whether the conduct occurs while on school property or at a school related activity

53. TEC (b)(5)
Student may be expelled engages in conduct that contains the elements of the offense of breach of computer security under Section 33.02, Penal Code, if:
(A)  the conduct involves accessing a computer, computer network, or computer system owned by or operated on behalf of a school district; and
(B)  the student knowingly:
(i)  alters, damages, or deletes school district property or information; or
(ii)  commits a breach of any other computer, computer network, or computer system.

54. Expulsion and Placement of Certain Students in Alternative Settings: Section 37.0081
Relating to the expulsion and placement in alternative settings of public school students who engage in conduct constituting certain felonies and to assessment of public school students placed in disciplinary alternative education programs.

55. Under 37.0081: May Expel if Student Has
a) been charged with engaging in conduct defined as a felony under Title 5;
b) been referred to a juvenile court for allegedly engaging in delinquent conduct under Section , Family Code, for conduct defined as a felony offense under Title 5;
c) received probation or deferred adjudication for a Title 5 felony offense;
d) been convicted of a felony offense under Title 5; or
e) been arrested for or charged with a felony offense under Title 5;

56. Under
must still determine that the student's presence in the regular classroom:
a) threatens the safety of other students or teachers;
b) will be detrimental to the educational process; or
c) is not in the best interests of the district's students.

57. Expulsion Procedures Must provide federal due process
Student may be represented
Student may appeal decision of Board to the court system

58. Due Process for Expulsions
Prior notice of charges and proposed sanctions
Full and fair hearing
Right to an adult representative
Opportunity to testify and to present evidence and witnesses
Opportunity to examine the evidence and question the administration’s witnesses
Provide a list of witnesses and the nature of their testimony

59. Placement in the Juvenile Justice Alternative Education Program (JJAEP)
A student admitted into the public schools of a school district under Section (b) is expelled from school for conduct for which expulsion is required, the juvenile court, the juvenile board, or the juvenile board’s designee, as appropriate, shall provide timely educational services to the student in the JJAEP in the county in which the student resides, regardless of the student’s age or whether the juvenile court has jurisdiction over the student.

60. THANK YOU For allowing me to make this presentation
David B. Hodgins of
Thompson & Horton LLP
Phoenix Tower, Suite 2000
3200 Southwest Freeway
Houston, Texas 77027
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