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Student discipline and violence
YOUR STUDENTS
Student discipline and violence
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Student discipline and violence issues encompass a broad range of conduct, ranging from isolated and minor disruption to violent behavior. Laws governing student discipline and violence may alter your responsibilities regarding instruction and identification of students with significant behavioral or mental health issues and may require you to make decisions that impact the health and safety of students and teachers. As always, if a situation arises where you feel concerned about your options and/or legal rights and responsibilities regarding student discipline and classroom safety, please call TCTA’s Legal Department at 888879-8282.
Student code of conduct
School districts and open-enrollment charter schools must develop student codes of conduct (SCCs) in conjunction with district-level and site-based decision-making committees. SCCs operate in conjunction with the discretionary and mandatory sanctions outlined in Chapter 37 of the Texas Education Code. Teachers can expect administrators and the board to enforce the student code of conduct. The law requires the SCC to specify that consideration will be given to mitigating factors (self-defense, intent, disciplinary history, etc.) when determining whether a student will be suspended, expelled or removed to a disciplinary alternative education program (DAEP) or juvenile justice alternative education program (JJAEP), regardless of whether the decision relates to a mandatory or discretionary removal. The SCC must also include provisions regarding actions that would result in a student’s removal from a school bus. State law designates the SCC as the appropriate place for campuses to indicate if the use of progressive sanctions, and what those progressive sanctions will be, are the responsibility of the campus behavior coordinator (see below).
Campus behavior coordinators
A 2015 law initiated by TCTA requires each campus to have a designated campus behavior coordinator. This person may be the principal or other campus administrator selected by the principal, and will be the administrator primarily responsible for maintaining student discipline. Though district or campus policy establishes specific duties, the law states that a teacher may send a student to the CBC’s office to maintain discipline. The CBC must respond by using appropriate discipline management techniques that can reasonably be expected to improve behavior before the student may be returned to class. If the student’s behavior does not improve, alternate techniques must be used. Unfortunately, some Districts of Innovation have chosen to exempt themselves from this provision. Districts are now required to post on their website the email address and dedicated phone number for the person clearly identified as the campus behavior coordinator. If the district is exempt from the requirement to designate a CBC under a DOI plan, the district must post contact information for the campus administrator 44
designated as being responsible for student discipline.
Discipline professional development
Administrators who oversee student discipline must, at least once every three years, attend training on school discipline laws, including distinctions between a principal’s discretionary discipline management technique and a teacher’s discretionary authority to remove a disruptive student from the classroom.
Teacher removal of students from class
State law gives teachers the means to protect a disciplined environment. Teachers can remove from class students who continuously or seriously disrupt learning. This process is a different, more formal process for addressing student discipline that is separate from sending a student to the CBC. A principal can assign the student to a DAEP, suspend or expel the student, or put the student in another teacher’s class. A teacher can refuse a student’s return to class, subject only to the right of the campus placement review committee to place the student back in the class as the best or only alternative placement. TCTA-initiated legislation ensures that a student may not be returned to a teacher’s class without the teacher’s consent if the student had been removed by the teacher for assault causing bodily injury to the teacher. The teacher may not be coerced to consent, and the decision may not be overturned
by a disciplinary review committee as with other removals. A teacher can document any conduct by a student that does not conform to the student code of conduct and submit it to the principal. A district cannot discipline a teacher on the basis of such documentation, per a TCTA-initiated bill. TCTA-initiated legislation provides that a student sent by a teacher to the CBC or other administrator’s office, or via a teacher removal from the classroom, is not considered to have been removed for the purposes of reporting data through PEIMS or other similar reports required by state or federal law. Recent legislation prohibits the use of timeout that precludes a student from progressing appropriately in the curriculum and annual goals in the IEP, including physically isolating the student; or a technique or intervention that deprives a student of one or more senses or results in a denial of supervision of the student; but specifies that these provisions do not prohibit a teacher from removing a student from class under current discipline laws.
Removal of students from school buses
A bus driver can send a student to the principal’s office to maintain effective discipline, and the principal must respond with appropriate discipline management techniques.
DAEP placement
The law identifies crimes for which teachers are required to remove students from class, and teachers can expect districts to enforce the mandatory placement provisions. Sec. 37.006 of the Education Code identifies crimes that require DAEP placement, including assault of a teacher. In some cases, a crime committed wholly apart from school, such as retaliation against a teacher, requires DAEP placement. Districts cannot assign a student younger than age 6 to a DAEP, unless the student brings a firearm to school. Schools cannot place elementary students with nonelementary students in DAEPs. Regardless of whether the disciplinary action is mandatory, the CBC must consider whether the student acted in self-defense, the intent or lack of intent at the time the student engaged in the conduct, the student’s disciplinary history, and whether the student has a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the conduct. Students who engage in certain elements of the offense of harassment under the Texas Penal Code must be removed from class and sent to a DAEP, subject to the consideration of mitigating factors. Under the law, the student must be removed if the student: 1. initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene; 2. threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property; 3. conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury; or 4. sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. Similarly, new legislation provides that a student who is expelled for conduct that contains the elements of terroristic threat must be placed in a JJAEP. A student commits an offense if he/ she threatens to commit any offense involving violence to any person or property with intent to cause a reaction of any type to the threat by an official or volunteer agency organized to deal with emergencies; place any person in fear of imminent serious bodily injury; prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance or other public place; cause impairment or interruption of public communications, public transportation, public water, gas or power supply or other public service; place the public or a substantial group of the public in fear of serious bodily injury; or influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.
Evaluation of DAEPs
The law requires DAEPs to provide for students’ educational and behavioral needs, and DAEPs’ educational mission is to enable students to perform at grade level. The commissioner of education, as required by law, adopted rules for the annual evaluation of DAEPs. Districts must administer a pre- and post-assessment of academic growth for students placed in DAEPs for 90 school days or longer. The instrument must be administered on the student’s initial placement and on the date of departure, or as near that date as possible. Procedures for administering the pre- and post-assessments must be developed and implemented in accordance with district policy.
Expulsion for serious criminal conduct
Chapter 37 specifies when districts are required or allowed to expel students who engage in very serious crimes, such as aggravated assault, sexual assault, or drug and alcohol offenses.
Expulsion and continued education
In most counties of more than 125,000 people, districts must educate expelled students in a JJAEP. Education of expelled students younger than age 10 must occur in a DAEP. If a student transfers, the new district may continue the expulsion.
Expulsion from a DAEP
A district can expel a student from a DAEP if he/she is documented to have engaged in serious misbehavior, as defined by law, while in the DAEP despite documented behavioral interventions. “Serious misbehavior” is defined as deliberate, Continued 2020-21 TCTA Survival Guide 45
violent behavior that poses a direct threat to the health or safety of others, extortion, conduct that constitutes coercion, public lewdness, indecent exposure, criminal mischief as defined by the Penal Code, personal hazing, or harassment of a student or district employee.
Considerations for out-of-school suspension
Districts and teachers are required to provide alternative means of receiving coursework in foundation courses to a student who has been placed in in-school or out-of-school suspension. The district must provide at least one option that does not require internet access. State law prohibits placing a student under grade 3 in out-ofschool suspension unless the student engages in certain serious behaviors listed in the Education Code. School districts and charter schools, in consultation with the CBC, may develop and implement a program that provides a disciplinary alternative for students under grade 3 whose behavior makes them eligible for out-of-school suspension according to the student code of conduct. The program must: be age-appropriate and researchbased; provide models for positive behavior; promote a positive school environment; provide an alternative disciplinary course of action that does not rely on the use of in-school suspension, out-of-school suspension, or placement in a DAEP to manage student behavior; and provide behavior management strategies including positive behavior intervention/support, traumainformed practices, social and emotional learning, any necessary referrals for services, and restorative practices. The law prohibits a district or charter school from placing a homeless student in out-of-school suspension except in the case of conduct including weapons, violence or drugs/alcohol on school property or during a school-related activity. The campus behavior coordinator can coordinate with the district’s homeless education liaison to identify appropriate alternatives.
Placement of registered sex offender
Pursuant to TCTA-initiated legislation, a student who is a registered sex offender must be placed in a DAEP or JJAEP for at least one semester. The placement is reviewed after one semester and annually thereafter by a committee that includes a teacher from the school the student would attend, the student’s parole/probation officer (if none, then a representative of a local juvenile probation department), an instructor from the AEP, a school district designee and a school counselor. If a student transfers to a different district during the required alternative placement period, the new district may require the student to complete an additional semester without reviewing the placement or may consider the time previously spent in a DAEP. The student’s placement in the AEP continues until it is determined that placement in the regular classroom is not a threat to students or teachers, will not disrupt the educational process, and is not contrary to students’ best interests. Placement of a student receiving special education services must be reviewed by the ARD committee, which may request 46
that the district convene a placement committee as described above to assist the ARD committee. If the student is not under court supervision, the district may place the student in a regular classroom, unless it is determined that such a placement is a threat to students or the teacher, will disrupt the educational process, or is otherwise not in students’ best interests.
School marshals
“School marshals,” whose identities are kept confidential, are school employees with special training who may exercise the authority given to peace officers, including making arrests, subject to regulations adopted by the school board or charter school governing authority. They may act only as necessary to prevent or abate an offense that threatens serious bodily injury or death to persons on school premises. Marshals must be appointed by a school district’s board of trustees or the governing body of an open-enrollment charter school, but there is no limit on the number of school marshals per student. The marshal may carry a handgun on school premises under certain regulations. If the marshal’s primary duty involves regular contact with students, the marshal may not carry the weapon but may keep it in a locked and secured safe within reach. The gun may be loaded only with “frangible” ammunition that disintegrates on impact. The gun may be accessed only under circumstances justifying the use of deadly force. The Commission on Law Enforcement operates a training program available to any school employee who holds a concealed handgun license, and administers a psychological exam to determine fitness to carry out the duties of a school marshal.
Citations and graduated sanctions
A school district peace officer, law enforcement officer or school resource officer may not issue a citation to a child who is alleged to have committed a school offense (an offense committed by a child enrolled in a public school on property under the control and jurisdiction of a school district) that is a class C misdemeanor, other than a traffic offense. However, the school may file a complaint against the child with a criminal court if the district has developed a system of graduated sanctions that the child has failed to comply with or complete, or if the school district has not elected to adopt a system of graduated sanctions.
Notification to educators
Educators have the right to be notified about students under their supervision who have certain types of disciplinary or criminal history (see page 50).
Right to report a crime
TCTA-initiated legislation clarifies that school district or openenrollment charter school employees may report any crime they witnessed at school to any officer with the authority to investigate it. Districts and charters cannot adopt a policy restricting this right or requiring employees to report only to certain people or officers.
STUDENT DISCIPLINE RIGHTS AND RESPONSIBILITIES
Removal by teacher
• A teacher may send a student to the campus behavior coordinator to maintain effective classroom discipline. • A teacher may remove a student from class after documenting repeated interference with the teacher’s ability to communicate with the class OR if the student engages in behavior so unruly, disruptive, or abusive that it seriously interferes with instruction. • Following removal, the principal may place the student in a disciplinary alternative education program (DAEP), in-school suspension, or another teacher’s class. • 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. • 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. • A removed student cannot be returned to the teacher’s classroom over the teacher’s 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 engaged in an offense of assault causing bodily injury against the teacher, the student may not be returned to the teacher’s class without the teacher’s consent. The teacher may not be coerced to consent.
Suspension
Removal to DAEP
Expulsion or removal to DAEP or JJAEP
• Grounds for suspension may be developed by the district and must be defined in the district’s student code of conduct. • A student may be suspended for up to three days at a time. • A student in a grade below 3 cannot be placed in out-of-school suspension except for certain serious offenses involving a weapon, violence, or drugs/alcohol.
• A school district must place in a DAEP, subject to consideration of mitigating factors, any student who, while on or within 300 feet of school property or while attending a school-sponsored or school-related activity on or off school property, engages in the following: • Conduct punishable as a felony; • Conduct containing the elements of the offense of assault causing bodily injury; • Conduct containing certain elements of the offense of harassment; • Selling, giving, delivering to another person or possessing, using or being under the influence of marijuana, a controlled substance, a dangerous drug or an alcoholic beverage; • Commission of a serious act or offense while under the influence of an alcoholic beverage; • Conduct containing the elements of an offense relating to an abusable volatile chemical; or • Conduct containing the elements of public lewdness or indecent exposure. • A student, whether or not on school property or at a school event, must be placed in a DAEP for engaging in conduct that: • Constitutes retaliation, i.e., harming or threatening to harm by an unlawful act a school employee on account of the employee’s job-related duties; or • Involves a public school and contains the elements of the offense of false alarm, report or terroristic threat. • 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 the felony offense of aggravated robbery or 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 including the felony offense of aggravated robbery or conduct defined as a Title 5 felony offense; or the superintendent or designee has a reasonable belief that the student engaged in the felony offense of aggravated robbery or conduct defined as a Title 5 felony offense. • A student may be placed in a DAEP if the superintendent or designee has a reasonable belief that the student, while off campus and not in attendance at a school-sponsored or school-related activity, has engaged in conduct defined as a felony offense other than aggravated robbery, or those offenses listed in Title 5 of the Texas Penal Code, 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. • A student who is required to register as a sex offender must be placed in a DAEP or JJAEP for at least one semester. • 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. • 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 student’s 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.
A student may be expelled or placed in a DAEP or JJAEP if the student has received deferred prosecution for the felony offense of aggravated robbery or 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 the felony offense of aggravated robbery or 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 the felony offense of aggravated robbery or 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 the felony offense of aggravated robbery or a felony offense in Title 5 of the Texas Penal Code; has received probation or deferred adjudication for the felony offense of aggravated robbery or a felony offense under Title 5 of the Texas Penal Code; has been convicted of the felony offense of aggravated robbery or a felony offense under Title 5 of the Texas Penal Code; or has been arrested for or charged with the felony offense of aggravated robbery or a felony offense under Title 5 of the Texas Penal Code. Before the placement, the board of trustees of a school district or the board’s designee must give an opportunity for a hearing. In addition, the board or the board’s designee must determine that the student’s 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 district’s students. (NOTE: Certain instances described here require expulsion.)
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, capital murder, criminal attempt to commit murder or capital murder, indecency with a child, aggravated kidnapping, aggravated robbery, manslaughter, criminally negligent homicide, continuous sexual abuse of young child or children, or drug- or alcohol-related offenses punishable as a felony. • A student must be expelled for committing any of the above offenses against any 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 on or off school property or while attending a school-sponsored or school-related activity on or off school property. • A student who engages in the conduct described above 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 may be expelled from school by the district which the student attends. • A student may not be expelled solely on the basis of the student’s use, exhibition, or possession of a firearm that occurs at an approved target range facility that is not located on a school campus; and while participating in or preparing for a school-sponsored shooting sports competition or a shooting sports educational activity that is sponsored or supported by the Texas Parks and Wildlife Department or a shooting sports sanctioning organization working with the department. • 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, a controlled substance, a dangerous drug or an alcoholic beverage; • Engages in conduct containing the elements of an offense relating to an abusable volatile chemical; • Engages in documented serious misbehavior despite documented behavioral interventions, while placed in a DAEP on the program campus; or • Engages in conduct containing the elements of deadly conduct. • A student may be expelled if, within 300 feet of school property, the student: • 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, capital murder, criminal attempt to commit murder or capital murder, indecency with a child, aggravated kidnapping, aggravated robbery, manslaughter, criminally negligent homicide, continuous sexual abuse of young child or children, or drug- or alcohol-related offenses punishable as a felony. • A student may be expelled if the student engages in conduct against another student containing the elements of aggravated assault, sexual assault, aggravated sexual assault, murder, capital murder, criminal attempt to commit murder or capital murder or the offense of aggravated robbery, without regard to whether the conduct occurs on or off school property or while attending a school-sponsored or school-related activity on or off school property. • A student may be expelled for committing assault against any 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 on or off school property or while attending a school-sponsored or school-related activity on or off school property. • A student may be expelled if the student: • Engages in conduct containing the elements of felonious criminal mischief; • Engages in school-related conduct involving false alarm, report or terroristic threat; or • Engages in conduct containing the elements of the offense of breach of computer security involving a computer, computer network or computer system owned by the district. • Students younger than age 10 may not be expelled, unless they bring a firearm to school. • A teacher must be informed by the district if one of the teacher’s 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.
Emergency removal
• A principal (or designee) may order the immediate removal of a student to a DAEP or may order expulsion if the student’s behavior is such that it seriously interferes with the teacher’s 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.
Chapter 37 does not specify a minimum term of a disciplinary removal or expulsion, as these decisions are determined by local codes of conduct and school officials. Additional requirements for discipline of students with disabilities are included on pages 52-53.
