Toolbox Tuesday: DAEP appeals and the courts

On Tuesdays here at Daily Dawg HQ we highlight issues involving discipline and students with disabilities. Our firm’s Toolbox Training is an all-day program illuminating the ten “tools” that school administrators have in their Toolbox. Today we take a slightly different tack: looking at the appeal of a DAEP assignment by a general education student.

The student was charged with possession of marijuana in her car on school grounds on Valentine’s Day, 2020.  In accordance with the Code of Conduct, the school assigned her three days of suspension and nine weeks of DAEP. She was also removed from the drill team for the remainder of the year and all of the next.

The parents appealed the decision.  A meeting was scheduled for February 20th to discuss the matter, but before that meeting took place the parents went to court and obtained a TRO (Temporary Restraining Order). The judge who issued the TRO ordered the school to release the girl from DAEP and allow her to continue on the drill team. While the court proceedings were moving along, the administrative appeals within the district also occurred.  The end result was a decision by the school board to allow the girl to return to drill team after one calendar year, but otherwise to affirm the DAEP placement and drill team suspension.

The school district challenged the TRO by arguing that the courts had no jurisdiction over this dispute.  This was based on the Texas Education Code, which could not be more clear: decisions about DAEP placement are “final and may not be appealed” as per T.E.C. 37.009(b).  Period.  The judge who issued the TRO did not see it that way, but the appellate court did:

Texas courts have interpreted this section to mean just what it says—district and appellate courts have no jurisdiction to review the decision to place a student in DAEP.

So what’s with the judge ignoring this and issuing a TRO?  Does the judge not have to apply the law as written?

Yes, the judge has to apply the law as written, but here, the judge believed there was an exception to the Education Code’s clear language.  The parents alleged that the DAEP assignment violated the U.S. Constitution.  The judge believed that allegation conferred jurisdiction.

So in order to get this case dismissed, the school district’s lawyers had to convince the court that there were no constitutional issues at stake.  They did that.

*The free speech claim was based on the Texas Constitution, rather than the First Amendment. The appellate court noted that our state constitution only protects speech on “matters of public concern.” There was none of that here.

*The court cited numerous cases holding that participation in extracurricular activities is not a constitutional right. The fact that the parents had spent money on drill team activities does not change that.

*The court cited caselaw holding that the transfer of a student to a DAEP does not deprive the student of “liberty” or “property” and thus due process is not implicated.

*Alleged damage to the student’s reputation was insufficient to require due process procedures.

Bottom line: there were no constitutional issues, and thus, no reason to override the provision in Chapter 37 that tells local judges to steer clear of DAEP appeals.   On top of that, the court noted that even though “due process” was not required, the school district did, in fact, provide a hearing and an appeal all the way to the school board.  That was more than sufficient procedural protection for the student.

In a footnote, the court cited a U.S. Supreme Court decision that reminds us of the general rule that judges are not supposed to meddle in the decisions of educators:

Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.  Epperson v. Arkansas, 89 S.Ct. 266, 270 (1968).

The case is Northwest ISD v. K.R., decided by the Court of Appeals for the Second Appellate District on August 20, 2020.  The Walsh Gallegos litigation team provided excellent advocacy on this one, led by Meredith Walker, along with Katie Payne and Ali Mosser.


Tomorrow:  Transgender students win another one.