Tag Archives: Student Discipline

Dawg Bones

ZERO TOLERANCE? I THINK NOT.

Don’t let anyone get away with telling you that Texas has a “zero tolerance” policy with regard to student discipline. We dropped zero tolerance some time ago.

Chapter 37 requires school administrators to consider certain factors before deciding on a disciplinary consequence. These are 1) self-defense; 2) intent, or lack of intent; 3) the student’s disciplinary history; and 4) a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.

These factors are not considered in a “zero tolerance” system. In that system, administrators have no discretion and take no mitigating factors into account. That’s the essence of “zero tolerance” and that’s why it has led to so much criticism and ridicule. Fortunately, our legislature changed our laws to require the exercise of some discretion. And note: these factors must be considered “regardless of whether the decision concerns a mandatory or discretionary offense.” T.E.C. 37.001 (a)(4).

The truth is, “zero tolerance” was always more of a political slogan than a realistic school policy. That’s because “zero tolerance” was inconsistent with federal law from the outset. But we will save that topic for tomorrow.

DAWG BONE: WE DON’T DO “ZERO TOLERANCE” IN TEXAS.       

 

 

Dawg Bones

SOMETIMES YOU NEED A LITTLE HELP FROM THE JUDGE

The U.S. Supreme Court has heard only one case that involved the discipline of students with disabilities—Honig v. Doe, decided in 1988. The Court held that Congress had intentionally stripped school officials of the “unilateral” authority to exclude students with disabilities from school. School officials could, according to the Court, suspend kids for up to ten days (cumulatively) during the school year. But anything above that number would require another party to approve the exclusion, usually the IEP Team (ARD). If the school needed immediate assistance in dealing with a dangerous student, it could seek assistance from the local state or federal court.

The Wayne-Westland Community Schools in Michigan did just that, and the case is instructive as to what kind of evidence a school would need to justify the immediate exclusion of a student from the IEP placement. Wayne-Westland got a TRO (Temporary Restraining Order) on October 9, 2014, followed by a Temporary Injunction on October 16. The Injunction will keep the student away from any school facility until the IEP Team can meet and discuss a change of placement. Even if the parent challenges a change of placement and invokes the “stay put” rule, the Injunction will keep the student out of school for awhile.

So what kind of evidence did the school present? In a case like this, the school faces a heavy burden of proof. It must show that maintaining the current placement is substantially likely to result in injury to students or staff. To convince a judge of that, you usually need evidence that the student has already injured someone.

Wayne-Westland had that evidence. The evidence showed that the student was a big kid—6 feet tall, 250 pounds. In one month in the spring of 2014 he 1) physically attacked a student and several staff members, spitting at and kicking them; 2) “menaced” two staff members with a pen held in a stabbing position and refusing to put it down when told to do so; 3) punched a student; 4) punched the principal; 5) threatened to rape a female staff member; 6) punched another staff member in the face. Later in the semester, the student attacked a security liaison. He was told to leave the building. When he attempted to return, four staff members held the door closed to keep him out. Since the student would not leave the school grounds, the entire school was placed on lockdown.

When school resumed in the fall of 2014, the student 1) threatened to bring guns to school to kill staff members; 2) made racist comments toward African American staff members; and 3) punched the director of special education in the face.

That was enough to convince the court that maintaining the student in the current placement posed an imminent threat. The school had plans to continue the boy’s education through Virtual Academy, with a staff member available to help him and answer questions by phone or email. The court found that plan to be sufficient.

Prior to 1988 a student like this one would probably have been expelled from school. That is no longer an option. The school has a continuing duty to provide a FAPE—Free Appropriate Public Education. But as this case indicates, the school can seek immediate assistance from a court to move a dangerous student off campus.

The case is Wayne-Westland Community Schools v. V.S., decided by the U.S. District Court for the Eastern District of Michigan on October 16, 2014. We found it at 64 IDELR 139.

DAWG BONE: IF YOU NEED IMMEDIATE RELIEF, YOU MAY NEED TO GO TO COURT.

 

 

 

 

Dawg Bones

5TH CIRCUIT SAYS NASTY RAP SONG ON YOUTUBE IS “FREE SPEECH”

We’ve come a long way from Tinker v. Des Moines. In that seminal decision, the U.S. Supreme Court held that public school students do not shed their constitutional rights when they enter the schoolhouse.  The case was right for its time—a time of civil unrest and protest, most of it peaceful. Mary Beth Tinker was the poster child for peaceful protest, wearing a simple black armband as a symbol of her support for a Christmas truce in Vietnam.

Now comes Taylor Bell, poster child for the pervasively vulgar culture of 21st Century America.  Mr. Bell published a rap song on Facebook and YouTube.  According to the 5th Circuit, Mr. Bell’s rap is entitled to constitutional protection, the same as Mary Beth Tinker’s armband.   The rap is about as nasty as raps can be.  It includes the N-word, the B-word, the S-word, the P-word, the MF-word and the F-word.

But the offensiveness of the rap goes far beyond the vulgar language.  The rap is personally insulting to identifiable people.  It accuses two coaches of sexual misconduct with students.  It comments on the size of the breasts of one of the coach’s wives (using the T-word).  The young artist suggests that one of the coaches will “get a pistol down your mouth/Pow.”

Pretty much the same as Mary Beth Tinker’s silent protest in support of peace, don’t you see…..

School officials in Itawamba, Mississippi sent Mr. Bell (18 years old) to an alternative school and barred him from extracurricular activities for the remainder of a nine-week grading period.  But the court said that the punishment was illegal, a violation of the constitution. The school district could not produce evidence of any serious disturbance at the school. Classes were taught. Bells rang. Buses ran.  Since there was no “material and substantial disruption” there was no basis for the school to infringe on this off-campus artistic expression.

The court’s majority opinion made much of the fact that the rap was written and produced off campus.  Schools are allowed to prohibit vulgar and lewd expression that occurs at school or a school function, but the court concluded that the rap was done at home and never performed at the school.  The court did not view the omnipresence of technology as having any impact on this.  The dissenting opinion said that this on campus/off campus distinction is arbitrary and “both tortures logic and ignores history.”

I expect most of you agree with the dissenter on that, but the majority of the 5th Circuit did not.  The majority opinion says that the distinction between what happens on campus and what happens off campus remains important.  That’s how they read the Supreme Court’s decisions and they are unwilling to change that without clear guidance from the Supreme Court.

Where does that leave you?  It leaves you largely powerless to restrict or punish student expression that occurs off campus.  The 5th Circuit in this case holds that such expression is constitutionally protected unless it amounts to a “true threat.”  What is a “true threat”? We’ll cover that in a future Law Dawg post.

Your Law Dawg is hoping that this decision will be reviewed by the 5th Circuit en banc.  If it is, we think there is an excellent chance that this decision will be reversed. But unless and until that happens, this is an important precedent in the arena of student free speech.  The case is Bell v. Itawamba County School Board, decided by the 5th Circuit on December 12, 2014.

DAWG BONE:  JUST BECAUSE IT’S ON YOUTUBE FOR ALL THE WORLD TO SEE DOES NOT MEAN IT IS ON YOUR CAMPUS.  NASTY RAP SONG IS CONSTITUTIONALLY PROTECTED.