Tag Archives: Student Discipline

Dawg Bones

Let’s talk about corporal punishment.

Dear Dawg: Corporal punishment is legal in Texas….right?  JUST WONDERING.

DEAR JUST WONDERING:

Right.  It is legal, but risky.  The most important thing about corporal punishment is compliance with your local policy. Study your policy FO Local. You will find that:

1. Some districts have prohibited corporal punishment;

2. Some districts require parents to give consent before corporal punishment can be used;

3. Some districts impose restrictions, such as a) who can administer it; b) how it is administered; 3) where it is administered; 4) how parents are notified.

The easiest way for an administrator to get into trouble over this issue is to fail to comply with local policy.  Even the failure to comply with a part of the policy that seems unimportant can lead to legal problems.

I recently looked at one district’s FO Local and found that it allowed corporal punishment, unless the parents have provided a written statement prohibiting its use. State law requires that parents be given that opportunity.  The district’s policy had these restrictions:

1. Only “spanking or paddling” are allowed;

2. The student must be told the reason for the paddling;

3. Only the principal or assistant principal can paddle;

4. The principal must approve the instrument to be used;

5. It must be done in a designated area out of the view of other students;

6. There must be a professional district employee serving as a witness; and

7. There must be a disciplinary record to document all of the above.

It’s my impression that most districts that allow corporal punishment require written parent consent.  Remember that state law requires that parents be allowed to opt out of corporal punishment, but many district have taken the extra precaution of limiting this practice to those parents who have affirmatively given their consent for its use. The Dawg thinks that this is the better practice.

Limiting corporal punishment to situations where parents have given written consent is sure to lower your risk of litigation over this controversial practice, but it does not eliminate that risk. Parents can give consent; and then sue over it.

You may wonder: how can they do that?  How can they say it’s OK, and then file a lawsuit over it?  Easily.  The suit will allege that parents gave consent for reasonable corporal punishment, and that what happened in fact was not at all “reasonable.”  No one can precisely define the line of demarcation between “reasonable” and “excessive” corporal punishment. Thus this is a risky practice, and one of the few instances in which a campus administrator can be held personally liable for damages.  You can be held liable for the excessive or the negligent use of physical force while disciplining a student.

So read your FO Local.  Comply with it. Be careful.

DAWG BONE: IT’S 2016 AND CORPORAL PUNISHMENT IS STILL LEGAL IN TEXAS.  LEGAL…BUT RISKY.

Dawg Bones

LEGISLATIVE ALERT! SUBTLE CHANGE IN THE LAW RE: WEAPONS POSSESSION

SB 107, recently enacted by our Legislature, requires each campus to identify a Campus Behavior Coordinator.  That’s the part of this new law that has drawn the most interest. But SB 107 also makes a subtle but important change in the law pertaining to the possession of weapons at school.

Prior law called for the expulsion of a student who “uses, exhibits, or possesses” certain weapons: a firearm, illegal knife, a club, or any weapon prohibited by Penal Code 46.05.

The new law calls for expulsion of the student who “engages in conduct that contains the elements of the offense of unlawfully carrying weapons under Section 46.02, Penal Code, or elements of an offense related to prohibited weapons under Section 46.05, Penal Code.”

The “elements of the offense of unlawfully carrying weapons” under 46.02 are:  1) that the person carried the weapon “on or about his or her person”; 2) that the carrying was done “intentionally, knowingly or recklessly”; and 3) that the weapon was a handgun, illegal knife, or club.  So what does that have to do with the illegal knife in the locker?  The argument will be made that “in the locker” is not “on or about his or her person.”  Is having a knife in the locker subject to discipline? It would be if your Code of Conduct says so. But with this new law in place, it may not meet the definition of a mandatory expellable offense under Chapter 37.

What about 46.05?  That statute makes it an offense to “intentionally or knowingly” possess, manufacture, transport, repair or sell an explosive weapon, a machine gun, a short-barrel firearm, a firearm silencer, knuckles, armor-piercing ammunition, a chemical dispensing device, a zip gun, or a tire deflation device.  Notice: knives are not on that list.

This law, like most of Chapter 37, does not apply to charters. But for the traditional schools, this will require careful attention to your Code of Conduct.

DAWG BONE: A GOOD ASSISTANT PRINCIPAL HAS THE CODE OF CONDUCT CLOSE TO MEMORIZED

 

 

 

Dawg Bones

SOMEBODY TOLD ME THAT I COULD COMMIT “ASSAULT” EVEN THOUGH THE OTHER PERSON SUFFERS NO INJURY. TRUE?

True.  Texas identifies three types of assault in one statute—Section 22.01 of the Penal Code.  Two of the three involve no injury.  However, when “assault” comes up in the context of public education, it usually refers only to the type of assault that results in an injury.  Let’s review.

It’s an assault if I “intentionally, knowingly, or recklessly” cause “bodily injury” to another person. This is Penal Code 22.01(a)(1). That’s the type of assault that Chapter 37 of the Education Code identifies as a mandatory DAEP offense.  This is also the type of assault that a teacher might cite as the basis for assault leave.

The Penal Code defines two other types of assault, neither of which requires proof of an injury.  In fact, one of them requires no physical contact at all.  It’s an assault if I “intentionally or knowingly” threaten you with “imminent bodily injury.” Thus this section of the law (Penal Code 22.01(a)(2)) makes the threat itself an “assault,” even in the absence of any physical contact.

The third type of assault (Penal Code 22.01(a)(3)) is generally known as “offensive touching.”  If I “intentionally or knowingly” cause physical contact with you in a way that I ought to know you will regard as “offensive or provocative” I have committed an assault.  Here, there is contact, but no injury.

Educators should be careful about tossing the term “assault” around too loosely.  Yes, all three of these are defined as “assaults” under the Penal Code. But when teachers or administrators are talking about assaults, it is usually in the context of student discipline, or a request by a teacher for assault leave.  With regard to student discipline, your Code of Conduct might make all three of these offenses punishable. But if you charge a student with the type of assault that requires DAEP as per Chapter 37, there must be some degree of “bodily injury.”  The law specifies DAEP for a student who “engages in conduct containing the elements of the offense of assault under Section 22.01(a)(1), Penal Code.”

Likewise, with assault leave. Teachers are entitled to assault leave to “recuperate from all physical injuries sustained as a result of the assault.”  T.E.C. 22.003(b).  So if there is no injury, there is no assault leave.

DAWG BONE: BE CAREFUL WITH THE TERM “ASSAULT”

 

 

Dawg Bones

SENDING STUDENTS TO THE PRINCIPAL… IS ABOUT TO CHANGE

I send the student to the principal. She sends him right back.  I send the student again.  She sends him back again.  I don’t see any improvement!

Classroom teachers have enjoyed the “right” to send students out of the classroom for disciplinary reasons since the beginning of recorded time.  But the legislature decided to codify this in Texas many years ago.  Now, S.B. 107 makes a subtle change in the dynamics between teacher and principal.

Current law says that when the teacher sends the kid to the office “the principal shall respond by employing appropriate discipline management techniques consistent with the student code of conduct.”   T.E.C. 37.002(a).   The new law, which goes into effect this school year, calls for the teacher to send the student to the CBC—the Campus Behavior Coordinator, rather than the principal.  And it says that the CBC (who will very likely be your principal or assistant principal) is to employ techniques “that can reasonably be expected to improve the student’s behavior before returning the student to the classroom.  If the student’s behavior does not improve, the campus behavior coordinator shall employ alternative discipline management techniques, including any progressive interventions designated as the responsibility of the campus behavior coordinator in the student code of conduct.”

This makes it sound like the CBC needs to have a toolbox of techniques available.  Moreover, they must be “reasonably” expected to bring about a change in behavior.  Think about this as you develop changes to your code of conduct this summer.

DAWG BONE:  CBCs ARE GOING TO NEED SOME TRAINING!

 

 

Dawg Bones

WHO WILL BE THE CBC (CAMPUS BEHAVIOR COORDINATOR) ON YOUR CAMPUS NEXT YEAR?

Nothing is important in education until we attach an acronym to it, so I’m proposing right now that we start using the term CBC—Campus Behavior Coordinator. This term comes from S.B. 107, which adds a brand new section to Chapter 37 of the Education Code, Section 37.0012.  That section requires that each campus in the state must have a CBC.  S.B. 107 does not say that it applies to charter schools, so it doesn’t. But the traditional schools will have to designate someone as CBC on each campus next school year.

The principal can be the CBC.  The law also permits the principal to name “any other campus administrator” to serve as CBC, so we expect this new title will go to principals and assistants. The specific duties of the CBC can be established by campus or district policy, but if you don’t adopt any such policy, the law spells it out for you.

“The campus behavior coordinator is primarily responsible for maintaining student discipline and the implementation of this subchapter.”  T.E.C. 37.0012(b).  The new sets out some of the specifics of that “primary responsibility.”

For example, it’s the CBC who must “promptly notify” a parent whenever a student is placed into ISS, out of school suspension, DAEP, expulsion or JJAEP, or when the student is taken into custody by law enforcement. This notice is to take place by telephone or in person on that day.  Our CBC must also make a “good faith effort” to get written notice to the parent on the day of the disciplinary action.

It’s also the CBC who decides what to do when the teacher exercises her right to dismiss a student from the classroom.  Teachers have had this right for a long time, but many of them complain that nothing much happens when they exercise this right.  S.B. 107 makes a subtle but important change in the law of “teacher removal.” We’ll take that up in tomorrow’s Daily Dawg.

DAWG BONE:  LAST YEAR YOU WERE JUST THE PRINCIPAL. THIS YEAR YOU CAN BE THE CBC!!

 

 

Dawg Bones

WHY DO LAWYERS KEEP FILING FEDERAL LAWSUITS OVER CORPORAL PUNISHMENT?

Trey Clayton, a high school student in Mississippi, filed a federal lawsuit alleging that his constitutional rights were violated when the assistant principal whacked him on the buttocks three times with a paddle.  No doubt that hurt, but the real damage occurred when Trey subsequently fainted and fell, face first, on a concrete floor.  With a broken jaw and five missing teeth, the student asserted his rights under the 8th and 14th Amendments.

The 5th Circuit dismissed the case.  The Supreme Court long ago held that the 8th Amendment (the one about “cruel and unusual” punishments) applies only in the context of criminal prosecution, not student discipline.  So the 8th Amendment argument did not work.

Nor did the argument about Due Process under the 14th Amendment.  Students are entitled to due process in connection with corporal punishment, but that process can consist of remedies available under state law.  Does Mississippi allow students to recover damages from school officials who are excessive in administering corporal punishment? It does. The 5th Circuit held that this was all of the process that was due.

The most creative argument Mr. Clayton put forth was the Equal Protection claim under the 14th Amendment. The argument was that the district paddled boys more often than girls, and that this was based on the “institutional bias” that boys violated school rules more often.  There was no evidence in the record to support this claim.

If the point of the lawsuit is to recover financial damages for the busted jaw and knocked out teeth, a simple “excessive force” claim in state court may have been more effective.  Often, however, suits like this are efforts to persuade a federal court to make a bigger point, by declaring corporal punishment unconstitutional.  Once again, that did not work.

The case is Clayton v. Tate County School District, 2014 WL 1202515 (5th Cir. 2014, unpublished).

DAWG BONE: CORPORAL PUNISHMENT IS CONSTITUTIONAL.  BUT EXCESSIVE CORPORAL PUNISHMENT VIOLATES STATE LAW

Dawg Bones

If you are using “Restorative Discipline” do you need to change the Code of Conduct?  

 

Many districts are embracing Restorative Discipline or at least moving in the direction of restorative practices in connection with student discipline.  One question that comes up is about the relationship between a restorative approach and the district’s Code of Conduct.

Chapter 37 of the Education Code requires a Code of Conduct, and spells out some of the required content.  The Code does three main things.  First, it notifies the students and their parents of what kind of conduct is expected in the school setting.  Second, the Code lays out the types of misconduct that might lead to exclusionary discipline, such as suspension, expulsion, or DAEP.  Third, the Code spells out some of the due process requirements.

The law makes only a vague reference to the methods you choose to use.  T.E.C. 37.001(a)(8) requires your code to provide the “methods, including options” for 1) managing students; 2) disciplining students; and 3) preventing and intervening in student discipline problems.

So some general statement about your classroom management techniques is probably appropriate for the Code, but this is not the place to go into detailed descriptions of RD or any other program.  Some districts are using (Positive Behavioral Interventions and Supports). Some employ MTSS (Multi-Tiered Systems of Support).  Some are now moving toward RD (Restorative Discipline). Many are seeking to find the best mix of all of these practices, each of which is designed to create a healthy campus climate.  It’s very important that any such plan be implemented faithfully with plenty of training for staff.

Your Code of Conduct will very likely require revision this summer based on new legislation.  In that context, some general statement about “methods” that you use would be appropriate.  But save the detail for the training and implementation.

DAWG BONE: SUMMERTIME APPROACHES.  LET’S START THINKING ABOUT NEXT YEAR’S CODE OF CONDUCT.

 

 

Dawg Bones

DO YOU HAVE TO PROVIDE “DUE PROCESS” BEFORE SENDING A STUDENT TO THE DAEP?

A student violates your Code of Conduct and is summarily sent to the DAEP for six weeks.  Lawyer B.J. “Bullfrog” Throttlebottom shows up in your office complaining that the student, his client, was deprived of the Due Process owed to him under the 14th Amendment to the U.S. Constitution.

You call your school district attorney, and relay the conversation with Throttlebottom. Your attorney promptly sends a letter to Bullfrog informing him that “It is impossible to violate your client’s rights to Due Process under the 14th Amendment. He doesn’t have any right to Due Process under the 14th Amendment.  He’s not entitled to ‘due process.’”

Is that so?

It is.  The latest iteration of this by a court came in C.C. v. Hurst-Euless-Bedford ISD.  This is a case in which a student was assigned to DAEP for 60 days for allegedly taking pictures of another student sitting on the toilet.  (Don’t you love middle school?)  Citing an earlier ruling, the court noted that “a student’s transfer to an alternate education program does not deny access to public education and therefore does not violate a 14th Amendment interest.”

This first came up in Texas shortly after the passage of Chapter 37 in the Education Code in 1995.  That’s when the legislature first mandated what we now call DAEPs.  San Marcos CISD assigned Timothy Nevares to DAEP (called AEP back then) and was sued over the Due Process clause of the 14th Amendment. The case went to the 5th Circuit. The court ruled that Neveres was not denied “due process” because no process was due.  “Process” is “due” only if the state (or school district) deprives a person of “life, liberty or property.” Those are the three things protected by the 14th Amendment.  The court held that “Timothy Nevares was not denied access to public education, not even temporarily.  He was only transferred from one school program to another with stricter discipline.”  Nevares v. San Marcos CISD, 111 F.3d 25 (5th Cir. 1997).

This does not mean that school administrators should be cavalier about assigning students to the DAEP.  Constitutional due process is not required, but there are procedures required by state law that are designed to ensure that the student and/or parent is given an opportunity to be heard.   So follow your procedures and provide for a fair consideration of the case.

DAWG BONE: THE 5TH CIRCUIT TELLS US THAT SENDING A STUDENT TO THE DAEP DOES NOT TAKE AWAY “LIFE, LIBERTY OR PROPERTY.”  

 

 

Dawg Bones

DEAR DAWG: WE ARE A CHRISTIAN SCHOOL. CAN WE BUILD OUR STUDENT CODE OF CONDUCT ON BIBLICAL PRINCIPLES?

DEAR DAWG,
I used to be a public school administrator, but I have retired from that business and I’m now serving as principal of a nice little Christian school. I expect that life will be easier for me now. So many laws that apply to the public schools do not apply here. Like Chapter 37.

So I was preparing a new Student Code of Conduct, and thought it would be a good idea to incorporate Biblical principles. We teach THE Bible, and emphasize it as the core textbook for life itself.  So it just seems natural to me that we would also incorporate it into our Code of Conduct. So with that in mind, what do you think about leading off the Code with the following:

If a man has a stubborn and rebellious son who will not obey the voice of his father or the voice of his mother, and, though they discipline him, will not listen to them,  then his father and his mother shall take hold of him and bring him out to the elders of his city at the gate of the place where he lives,  and they shall say to the elders of his city, ‘This our son is stubborn and rebellious; he will not obey our voice; he is a glutton and a drunkard.’ Then all the men of the city shall stone him to death with stones. Deuteronomy 21: 18-21.

Do you think that sets the right tone?
--WANTING TO DO THINGS RIGHT.

 

DEAR WANTING:
Well, we think it’s helpful that the Scripture verse tells us that stoning is to be done with “stones.” But as far as tone….no, we think you could find something more appropriate. You are right that private schools have a lot more flexibility, but we think “stoning” goes a bit too far. You might run into some problems with the local district attorney on that one. Furthermore, your private school is subject to non-discrimination laws, and we notice that this provision only targets one gender. What…you’ve got no “stubborn and rebellious” daughters???? So while we think that incorporating Biblical principles is a great idea, we would suggest something that is less likely to lead to constitutional violations and criminal prosecution. How about: “Train up a child in the way he should go; even when he is old he will not depart from it.” Proverbs 22:6.

DAWG BONE: THE AUTHOR OF DEUTERONOMY WOULD MAKE ONE HECK OF AN ASSISTANT PRINCIPAL.

 

 

Dawg Bones

IS “ZERO TOLERANCE” CONSISTENT WITH FEDERAL LAW?

People use the term “zero tolerance” to mean a lot of different things. In essence, it signals a tough, no excuses, discipline system. It curtails educator’s discretion in favor of simple black and white rules applied across the board.

But that approach is problematic under federal law. Our basic special education law, IDEA, says that students with disabilities may not be removed from their classroom placement as a disciplinary consequence unless the student’s ARD Committee concludes that the behavior was not a manifestation of the student’s disability. You can’t just slap a special ed kid into the DAEP due to a disciplinary infraction. You have to go through the ARD process first. Thus it’s hard to square that legal requirement with a strict “zero tolerance” approach.

Our federal special education law does include three “semi-zero tolerance” provisions. These are known as the “special circumstances” offenses—drugs, weapons and the infliction of serious bodily injury. If a student commits one of those offenses, the school is authorized to order an immediate removal of up to 45 school days. This can be done whether the behavior was caused by the disability or not.   But that’s still not exactly what most people mean by “zero tolerance.”

So be careful in tossing this term around.

DAWG BONE: IT’S HARD TO APPLY “ZERO TOLERANCE” AND COMPLY WITH FEDERAL LAW AT THE SAME TIME.