Is DAEP ever really “mandatory”?

Chapter 37 of the Texas Education Code describes several offenses as “mandatory” DAEP offenses. Thus a student who engages in one of those offenses must be assigned, at least for a while, to DAEP.

But in the law, words do not always mean what they mean in the dictionary.  The term “mandatory” in Chapter 37 is misleading. 

The first reason for that is due to federal law regarding special education. Nothing is “mandatory” in the discipline of a student with a disability.  If the student commits an offense that calls for a mandatory assignment to the DAEP, this is what the IDEA would call a “change of placement.” That means the ARDC must make a “manifestation determination.”   This is a formal process by which the ARDC determines if the misconduct was caused by the disability, or by the school’s failure to implement the student’s IEP. If the ARDC concludes that the behavior was a manifestation of disability, the student cannot be assigned to DAEP unless the behavior fits the “special circumstances” provision—drugs, weapons, or the infliction of serious bodily injury.

Then there is a state law, which now requires campus administrators to consider six factors before deciding on a disciplinary action. Importantly, the law says that the six factors must be considered “regardless of whether the decision concerns a mandatory or discretionary action.”   The factors are: 1) self-defense; 2) intent; 3) disciplinary history of the student; 4) disability that impairs the student’s ability to understand the wrongfulness of the conduct; 5) homelessness; and 6) foster care.

So campus administrators should think twice before describing a disciplinary infraction as “mandatory” and they should never use the term “automatic.” The only thing automatic in life is that your AC will go on the fritz in July or August.  Nothing is automatic in Chapter 37.


Tomorrow: What is the school board meeting like for the superintendent?