In the Toolbox Training we provide a full day devoted to the ten “tools” that are available to school administrators when dealing with seriously disruptive and/or violent behavior by students with disabilities. Some of those tools involve a long term change of placement. Some of those changes of placement are to the DAEP. In particular, Tool #6 is a Disciplinary Change of Placement due to a violation of the Code of Conduct that is not a manifestation of disability. And Tool #5 is a Special Circumstances Removal, which usually also involves a lengthy stint in DAEP.
Prior to sending a student to the DAEP, the Campus Behavior Coordinator must schedule and conduct a conference with the student and the parent. This is not required by the U.S. Constitution. We have 5th Circuit case law that establishes that the removal of a student to the DAEP is not a deprivation of liberty or property. Therefore, “due process,” as that term is used in the Constitution, is not required. Nevares v. San Marcos CISD, 111 F.3d 25 (5th Cir. 1997).
But you do have to schedule and conduct that conference, which is going to look an awful lot like a “due process” conference. T.E.C. 37.009 lays it all out:
Not later than the third class day after the day on which a student is removed from class by the teacher…or by the school principal or other appropriate administrator…the campus behavior coordinator or other appropriate administrator shall schedule a conference among the campus behavior coordinator or other appropriate administrator, a parent or guardian of the student, the teacher removing the student from class, if any, and the student.
What happens at this conference?
At the conference, the student is entitled to written or oral notice of the reasons for the removal, an explanation of the basis for the removal, and an opportunity to respond to the reasons for the removal.
What happens if you can’t get everyone to attend?
Following the conference, and whether or not each requested person is in attendance after valid attempts to require the person’s attendance, the campus behavior coordinator, after consideration of the factors under Section 37.001(a)(4), shall order the placement of the student for a period consistent with the student code of conduct.
What “factors” is the law talking about?
(B) Intent or lack of intent at the time the student engaged in the conduct;
(C) A student’s disciplinary history; or
(D) A disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct.
The statute requires consideration of these four factors prior to each suspension, removal to DAEP or JJAEP and expulsion. Moreover, these factors must be considered “regardless of whether the decision concerns a mandatory or discretionary action.”
Of course if you are dealing with a student with a disability, there is another step to take—the ARDC meeting.
The laws pertaining to the discipline of special ed students are complex and detailed. We created the Toolbox in an effort to streamline and simplify. If you are interested in a Toolbox training, please let me know.
DAWG BONE: WE DON’T CALL IT “DUE PROCSS” BUT IT LOOKS A LOT LIKE IT.
Tomorrow: Final results from this year’s Regional Mt. Rushmore Project!!