Miles T. Bradshaw 2016-08-25 02:30:44
Most lawyers do not routinely represent students and their parents in student discipline matters in public schools. However, most of us eventually have children, or have relatives and friends with children, who will invariably find themselves in the principal’s office. If you are not a “school lawyer,” student discipline—something that sounds relatively simple—can be anything but. If you are also a parent, the school principal will quickly remind you of how you and your child acknowledged receipt of the student code of conduct when you signed all those forms at the beginning of the school year. Now faced with its wrath, you may actually read this document. It will describe all types of offenses that occur on or off campus and punishment ranging from in-school suspension to expulsion. Different levels of offenses allow for slightly different procedural appeal rights for the student. Most student codes of conduct are 30 to 50 pages of small print. However, a general understanding of the student discipline process and a cooperative attitude toward school officials may help you get some relief as a lawyer helping out a neighbor’s kid or as a parent representing your own children. So what are the basics? Every summer, your local school board is required to formally adopt a student code of conduct for the upcoming school year.1 For someone reviewing it for the first time as your child sits quietly in the principal’s office, the code can read like something straight out of the Code of Federal Regulations. Some of the contents are decided locally, while others are recitations of various state statutes and even a few federal statutes. Most of the statutory code provisions come from chapter 37 of the Texas Education Code. One of the first things you may notice is that some offenses are considered “mandatory placement” offenses where the statute requires that a student, for example, be placed into a disciplinary alternative education program, or DAEP.2 Others might fall into the category for discretionary removal to a DAEP statute. The key to determining which portions of the code are applicable to your situation is to categorize the offense in question and assess the applicable procedures and, most importantly, timelines. In my experience representing public school districts for more than 20 years, the three most important things to be aware of when it comes to student discipline are: (1) you may be up against very short timelines; (2) before imposing a recommended punishment, every school administrator must consider certain mitigating factors; and (3) you catch more flies with honey than with vinegar. Quick Timelines Depending on the severity of the alleged offense, a student may have certain appeal rights that must be expressed within very short timelines under the procedural protections in a code of conduct. In addition to the specific timelines stated in the code and often in a notice letter from the principal, if you ultimately appeal your situation through a school district’s parent/student grievance process, you must file your complaint typically within 15 days.3 Some districts allow for 20 or 30 days, and the timeline is determined locally at the discretion of the school district. If an infraction can result in removal to a DAEP, the administrator will schedule a conference with the student and parent or guardian within three school days of the reported infraction. Codes of conduct also state that, unless otherwise agreed to by the parties, an administrator must provide the parent or guardian with written notice regarding the discipline consequence within seven school days from the date the infraction was reported to the administrator. Appeal timelines throughout the process may be as short as three days, during which you must assert your rights to appeal under the code of conduct or lose them. These are just a few examples. The point is to quickly review the code of conduct and any relevant school board policies and determine procedurally where you stand. Important Mitigating Factors As a parent or lawyer advocating on behalf of a student, one of the primary ways to reduce or even escape punishment for an offense is to focus on four factors that a school district must consider in every case. State law requires that every student code of conduct in public schools include provisions that require the consideration of: (1) whether the student acted in self-defense, (2) the intent or lack thereof at the time the student engaged in the conduct, (3) the student’s disciplinary history, and (4) whether the student has a disability that substantially impairs his or her capacity to appreciate the wrongfulness of the conduct. These mitigating factors became law in 2009.4 These provisions allow discretion to be used, regardless of whether the decision of the administrator or the board concerns a mandatory or discretionary action in considering the removal of a student to a DAEP or the expulsion of a student and their removal to a juvenile justice disciplinary alternative education program. This is almost always the “hotspot” for a parent or lawyer to focus on (putting aside whether or not the student actually committed the alleged infraction). Disciplinary history is one of the most useful and persuasive factors to help an administrator use discretion and potentially go a little easier on the student. Some school administrators prefer not to exercise this discretion except in the most unusual cases. The reasoning is that, as a governmental entity, the school district must always be mindful of treating students equally in similar circumstances for fear of a U.S. Department of Education Office for Civil Rights complaint or lawsuit alleging discrimination based on any number of protected factors, such as race, religion, sex, national origin, or disability. That said, quite often situations are different enough where a school administrator can depend on one of those differences and use the statutory discretionary factors to mitigate a particular disciplinary matter. A good example where the intent factor may come into play is a student who gets busted for possessing a nine-inch dagger in his vehicle in the school parking lot. Assume the student had to drive his college-aged brother’s car to school all week and had no idea there was a knife in the vehicle. The student insists he should not be punished because he did not intend to bring a prohibited weapon to school. The school district can no longer use what was once called “zero-tolerance policies” and automatically send the student to DAEP. The principal must consider the mitigating factors. Here, the intent certainly seems lacking and the student has a strong case for a mitigating factor against the offense and he should try to persuade the principal to at least reduce the punishment. It is not uncommon for an otherwise mandatory DAEP offense to be reduced to a week of in-school suspension. One noted exception to the mitigating factors is when a student brings a gun to school. The mitigating factors apply only to state offenses, and firearm possession at school is a federal offense.5 Under federal law, possession of a firearm results in automatic expulsion and does not consider any state mitigating factors. The federal law does permit the statutory one-year period of expulsion to be modified on a case-by-case basis. Honey Not Vinegar Understanding the ins and outs of student discipline rules and laws in public schools might remind one of drinking water from a fire hose. If you get the principal’s call in the middle of the day, there are some basic guidelines to follow that will help ensure that your child, your relative’s child, or your neighbor’s child at least gets a fair shake. Obtain a copy of the student code of conduct immediately and read, read, read. Most are now found on the school district’s website and are searchable. Know that a school administrator must consider the mitigating factors before recommending a punishment. Assuming they help you, immediately start using the catch phrases such as “disciplinary history,” “lack of intent,” and “self-defense,” but don’t be smug. Principals and assistant principals have some of the hardest jobs imaginable, and imposing student discipline is probably one of their most taxing duties. And they aren’t all Richard Vernon from The Breakfast Club. Educators prefer to teach kids, not punish them. Almost all of them are in the school business because they care about students and have big hearts. Treat them with respect and understanding, and they will do the same for you and your child. Notes 1) Tex. Educ. Code § 37.083(a). 2) Tex. Educ. Code § 37.006. 3) For example, the Houston Independent School District’s board policy on FNG (Local) for student/parent complaints requires a filing “within 15 days of the date the student or parent first knew, or with reasonable diligence should have known, of the decision or action giving rise to the complaint or grievance.” 4) Tex. Educ. Code § 37.001(a)(4). 5) Gun Free Schools Act, 20 U.S.C. § 7151 (1994). MILES T. BRADSHAW is a partner with Kelli H. Karczewski in Karczewski Bradshaw, a firm with offices in Nacogdoches, Beaumont, and Houston. He is certified in labor and employment law by the Texas Board of Legal Specialization and primarily represents school districts, community colleges, municipalities, and other governmental entities. He has practiced in school law since 1993.
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