Thank you
.
Thank you.
is student discipline. Long gone are the days when good intentions and common sense alone
are sufficient. Today's principle needs a clear understanding of a complex web of local,
state, and federal policy. This is particularly true following the enactment of Senate Bill 1
in 1995. This video on the law of student discipline under Senate Bill 1 is jointly
produced by the law firm of Walsh Anderson Underwood Schultz and Aldrich, a professional
Corporation with offices in Austin, San Antonio, and Dallas, Texas, and by the Texas School
Administrators Legal Digest, a monthly legal periodical. Featured is school attorney Jim
Walsh, senior partner in the Walsh Anderson Law Firm, and his guests, attorney Nan Seidenfeld
with the San Antonio office of the same firm, and Frank Kemmerer, regents professor in the
College of Education at the University of North Texas. Appearing in the dramatizations
in this video are students Devin Walsh, Josh Seidenfeld, and Jenny Kemmerer. Cameo appearances
feature Legal Digest administrative assistant Royann Ormsby in the role of a distraught mother,
videotape producer Duncan Angler as Dr. I.M. Stoned, and University of North Texas professor
John Horvath as an aging in-school suspension monitor. Please note that the videotape you are
about to see is protected by copyright. We remind you that copying in whole or part is
strictly prohibited. This video is designed to provide general information on the subject
discussed, but is not intended to provide legal advice with regard to a specific situation.
It should not be relied upon in dealing with specific cases where legal advice is called
for. As the law changes, portions of the videotape that reflect the law as it existed when the
video was made may no longer be accurate. Advice from legal counsel should be obtained
to guide you through a specific situation. We begin with an incident occurring in the
hallway of Blusterville High School that poses a direct challenge to Principal D.W. Durant.
Devin, now how many times have I told you you can't wear a cap in the school halls?
About 50 or 60. Well, when are you going to decide to comply with our school policies?
Maybe when I think your vocal cords are sufficiently exercised, sir.
Listen, pal, it's not...
You can't do that.
That's a violation of Senate Bill 1.
I hope you noticed in our opening sequence that at the time of the assault,
Principal Do-Right was carrying his copy of Senate Bill 1.
Mr. Do-Right is a diligent and an earnest school administrator, always trying to do the right thing.
And so he has been using every spare moment to brush up on this latest legislation.
Mr. Do-Right should not be alone in that effort.
Senate Bill 1 represents a major change in the way Texas schools have done business.
In this last session of the legislature, the legislature completely rewrote the Texas Education Code.
Teachers, administrators and school board members all need to go back to school to learn what's new under Senate Bill 1.
In this video, we're going to concentrate on the changes brought about in the area of the student discipline.
Chapter 37 of the new Texas Education Code changes the way we've done things in a number of significant ways.
In this video, we're going to concentrate on two major areas.
We'll touch on everything from minor violations of the Code of Conduct to expulsions, but
we're going to concentrate on two areas, teacher-initiated removal and removal to the
Alternative Education Program.
Along the way, we'll discuss the impact of Senate Bill 1 on classroom teachers, we'll
talk about what role parents will play in the process, and we'll also mention the special
concerns we should have in dealing with students with disabilities.
Now, I'm sure that you're wondering what Mr. Do-Right is planning to do
with the student who shoved him up against the wall in the opening sequence.
We'll get to that later in the video.
But first, let me point out four key features of this new law.
First, Senate Bill 1 requires every school district to adopt a student code of conduct.
Now, that's not entirely new.
From the beginning of time, schools have adopted codes of conduct,
and on the first day of school, they've handed them out to the students
with a complete list of the rules of the school
and the consequences that might follow if the students violate those rules.
What's new leads us to point number two.
Every code of conduct violation must be documented.
Senate Bill 1 requires the teacher who has knowledge of a violation of the code of conduct
to document that and report it to the principal.
Now, in an effort to keep down on paperwork, the legislature says that the documentation
must be on a form no more than one page.
But this documentation must be turned into the principal, who then must turn around and
send it to the parents within 24 hours.
So what teachers are documenting is exactly what's going to go home.
The third change under Senate Bill 1 has to do with teacher-initiated removal.
Now, again, this is not entirely new.
For some time in our Texas Education Code, teachers have had the authority to remove
students from the classroom when the students are unruly or when they're interfering with
classroom instruction.
What's new, though, is that under the new provisions of teacher-initiated removal, a
teacher can refuse to take a student back to the classroom.
In that event, the principal has to look into some other options.
That leads us to our fourth point that we want to emphasize about Senate Bill 1, and
And that is the Placement Review Committee.
This is a new entity created by Senate Bill 1.
It only comes up when the principal wants to place a student back into the classroom
and the teacher is refusing to take that student back.
The principal cannot require the teacher to take the student back.
The principal cannot coerce the teacher to consent to take the student back.
So in those instances, it goes to the Placement Review Committee, the PRC.
Now, the PRC will be a three-person body comprised of two faculty members chosen by their fellow
faculty members and one professional staff member appointed by the principal.
In this video, we'll take a look at how all that comes together.
In fact, it seems that at Blusterville High School, the award-winning history teacher,
Mr. Stern, has been having some problems with some students in his class.
Let's take a look at that and how it might come out under Senate Bill 1.
I'm pretty thrilled.
I'm pretty proud.
Okay, there goes the bell.
Let's get started now.
We've got a great class today in American history.
Today I want to talk about Marbury.
Hey, hey, hey, guys, guys, okay, let's get started.
The bell's rung.
Come on.
We've got a great class today.
We're going to talk about Marbury v. Smith.
Hey, listen.
Hey, Sparto, what did I say?
I said put it away, okay?
Hey, listen.
what'd I say I said put it away okay this is not music class this is American
history okay come on guys listen every day this goes on every day you come in
class we can't get started I said put it away you didn't put it away what is the
deal what do you think else goes on every day
I listen to you. Are you talking back to me? Are you talking back to me? No, I'm just you know, having a discussion
No, you're not having a discussion interrupting all these other students. What's your problem? I you know, it's like it's one
Yeah, I see what your problem is. Listen the three of you. I've had it. Okay. I've had it. I don't want you in this place
What's your problem right now? Mr. Do-rights office the three of you right now. Mr. Do-rights office. I'll be down there
I'm gonna write I'm gonna write up. I'm gonna write up what happened today and I'll be down there now leave now
Three days later, Mr. Do-Right conducts an informal hearing in his office.
Two of the three students are present, along with their mothers.
One of the mothers, Ms. Sheila Gutcha, also happens to be an attorney at law.
Let's watch what happens.
Okay, I want to thank everyone for being here.
Ms. Goodhart, I see you've brought Devin and Ms. Gutcha.
Now, you're here both as a mother and a lawyer on behalf of Josh.
I'm representing both boys.
Oh, you're representing both boys.
Okay, very good.
And, Mr. Stern, you referred these students to me, and that's really the reason we're here.
It was my understanding there was a young lady involved in the problem.
Well, there was, but she was really duped by these two, and so I didn't refer her to you.
Okay.
She'll be all right.
All right, well, let's deal with Josh and Devin, then.
Why don't we begin with you, Mr. Stern, and just tell me what brought about your referral to my office.
Well, I finally had it with these two.
I've been trying to teach American history this term,
and every class we go through the usual routine of trying to get them settled down,
and it's a constant battle.
This last time I told them to stop playing music, they wouldn't.
They got in my face.
They yelled at me.
They disrupted the class.
I simply will not tolerate it any longer, and so I sent them to you.
And I will not take them back.
Well, is this something that's been going on for a long time then?
It's been going on all semester.
Hmm.
Ms. Gottschalk?
This is entirely news to us.
I have never received a single referral from Mr. Stern about my son.
Have you had any sent home with you, Josh?
No.
How about you, Devin?
No.
None at all.
Have you received anything?
It's my understanding, Mr. Do-Right, the new law, Senate Bill 1, requires that parents be notified.
We're supposed to know if something's going on with the child look at these young men
They haven't don't look like the type of people who would cause the kind of problems that mr.
Stern is is claiming you have to come to my class and you'll see well
We have two witnesses here
They were there and and the rendition of the of what happened as far as as they're concerned was
That they were merely admiring Joshua's guitar. It's a guitar. He built as part of a project
Well, I am concerned about his statements though that this has been going on for a long time
time we have no referrals we have no idea what it is he's talking about well
on that now mr. Stern I miss gotcha you'll be pleased to know I've been
studying up on Senate bill one as well and mr. Stern this is important because
in in Senate bill one if I can refer you to this section right here it does
require that I give notice to the parents of a violation of the Code of
Conduct within 24 hours but I'm supposed to get a report from you well that's the
first time I've ever seen it. According to our teacher association, Senate Bill 1 is designed
to empower teachers to teach. That's what I'm trying to do. I don't know anything about this.
You've never told the faculty anything about it. As far as documentation is concerned,
they're violating my student code of conduct in the classroom. I documented that one incident,
and I simply will not have them back. Well, now, Ms. Gottschall, Ms. Goodhart,
I guess I should address you as the attorney. There are other American history classes.
I'm sorry, Mr. Do-Right, but these two young men are both seniors.
They have carefully developed a schedule to be able to graduate with all their requirements.
If they were to be moved to another American history class,
it would completely disrupt their schedules, and they wouldn't be able to have all the requirements.
So you want them in my class where they can disrupt me and disrupt the class. No way.
It's my understanding that teachers in their training are to learn classroom management,
and I think that's part of Mr. Stern's job.
I'm managing the class right now, Ms. Gottschalk, by not having these young juvenile delinquents in my class.
I take great exception to this, and I think this gentleman is really out of line,
and I am prepared to go to district court and get a restraining order to place these young men back in his classroom
if he's unwilling to reason with us.
Well, you'll have to do what you have to do, but Senate Bill 1 empowers teachers to teach,
and that's exactly what I intend to do, and I won't have them in the class.
Senate Bill 1 is supposed to make parents partners with the school.
Well...
This does not sound like a partnership to me, Mr. Do-Right.
I think I understand where you two are coming from.
I do want to make sure I've heard from everybody before our conference concludes.
Josh, do you have anything you want me to hear?
I had no idea the situation was so grave as to something that would keep me from graduating.
If it'll do any good, I'd like to offer my apologies to you.
All right. Thank you, Josh.
Devin, anything you'd like to say?
Well, sir, I too was kind of oblivious to the fact that this was such a dangerous situation.
I've really found myself at the bottom of the hole with the shovel still warm.
All right. Thank you, Devin.
Ms. Goodhart, is there anything you can say?
All right. I understand.
Well, I do want to thank all of you for being here.
It's my job to look into this, and I'll be looking into it and making a decision this afternoon,
and I'll be in touch with each one of you to let you know of my decision.
We look forward to having the boys return to Mr. Stern's class as they should be.
It'll be over my dead body that they're going to be back in my class.
Thank you, one and all.
Mr. Stern is pretty adamant about not having these students back in his classroom,
but there may be a problem with documentation, right?
It's possible that that could be a problem,
depending on which grounds Mr. Stern is trying to use to remove the students from his classroom.
Senate Bill 1 allows him to do it in two ways.
One is if there has been an ongoing problem with the student and that has been documented,
then that may be a grounds for removal.
But a one-time incident, if it's egregious enough,
if enough of a disruption in the classroom may be enough,
both need to be documented to the principal
if indeed it is some violation of the Code of Student Conduct.
I think that's one thing that administrators need to be apprised of
is that their teachers need to know that they are to report those violations of the Student
Code of Conduct to the principal, and then those must be in turn sent on to the parents.
Now, this is going to —
Now, is this necessarily fatal to Mr. Stern here?
Because the only thing that he's documented is this particular disruption involving the
three students.
Mr. Do-Right can still, however, under the second option that Nan mentioned, decide that
these students ought not to be placed back in that class, right?
That's right.
Mr. Do-Right concludes that the behavior of the students was so seriously unruly, disruptive,
or abusive on this one incident, then he can remove the student on the basis of that.
But to get this clear now, Mr. Stern is best advised to document every infraction of the
student code of conduct that occurs in his classroom and sends that on to Mr. Do-Right.
Right. And then every violation of the code of conduct has to be documented by the teacher,
and then that very report is going to go home to the parents.
So in this scenario, the parents were right to be concerned about the fact
that they had not received copies of anything
because Mr. Stern was saying they'd been disrupting my class all semester.
If that's the case, surely that's a violation of the code of conduct.
It should have been written up, and therefore it should have gone home to the parents.
I think one of the important things that administrators need to keep in mind
in enforcing this is that on one hand we have a teacher who is responsible for discipline
in the classroom. On the other hand, that teacher has been empowered to remove the student
from the classroom. The key is going to be the balance between those two. What an administrator
can do and should do, in my mind, is to evaluate a teacher based in part on what happens in
that classroom in terms of discipline. So if a teacher is spending so much time writing
up students and sending them out of the classroom, that may be cause for some kind of growth
plan or remedial action that needs to be taken with that teacher.
The reverse is true though also.
Teachers who might tend to feel they can handle classroom discipline problems themselves and
not write students up have a problem now under this statute because they're required to write
up those infractions of the code that they know have occurred.
So it's a kind of a delicate balancing that teachers must do at this point, maintaining
control of the classroom and they might keep the student in the classroom but still sending
those reports on to the principal's office let's uh let's talk a little bit about mr do-right's
situation here he conducted a hearing is his hearing adequate or deficient in some way number
one jim well frank the state law doesn't tell us anything about what a removal hearing of this sort
is is to look like it just says that you're to make valid attempts to contact uh people you have
have to make, quote, valid attempts to contact the teacher, the parents, and the students
and see if you can get them to come to this meeting.
And then you have the meeting.
But beyond that, state law doesn't tell us how formal it's to be or anything.
So it's a matter of local policy.
And as long as what Mr. Do-Right did comported with Blusterville's policy, it looks to
me like he'd be okay.
Let's suppose that this matter is turned over to the Placement Review Committee.
Now how does exactly, how would that work in this scenario?
Well, first of all, that's only going to come up if Mr. Do-Right orders these kids
back into the classroom and Mr. Stern sticks with his position of over my dead body.
If that happens, and if the students are not special ed, which is something else we need
to talk about, then it would go to the Placement Review Committee.
And that's three people, two teachers chosen by their fellow teachers, one administrative
representative chosen by the principal, might be the principal himself, might be an assistant
principal, could be another teacher.
That's the placement review committee, and they would decide what to do.
Let's suppose that they decide to put the student back in the class.
Now what for Mr. Stern?
He sat over my dead body.
That's another thing the statute doesn't address.
I assume that Mr. Stern can file a grievance over that and carry it on through the district's
grievance procedure, but, you know, there's nothing in the statute that authorizes anybody
to override that placement review committee.
So I'm inclined to believe that the placement review committee's decision is final.
Last question.
Let me ask Nan.
You've led to it before.
Suppose either Josh or Devin had a disability under either IDEA or Section 504.
How would that change this scenario?
Well, I think it changes it significantly and it's an important point.
There's a separate section in the code, 37004, which specifically says that the placement
of students with disabilities is to be made by a duly constituted ARD committee.
And we know that under federal law, decisions about students with a disability under 504
are to be made by a Section 504 committee.
So if we're talking about what would amount to a change of placement, in other words the
the students are being moved to a different campus, or they're being moved to a different
program where their educational program is going to be different.
And if that's to last more than 10 days, that's a change of placement, and that would not
be handled by a PRC, that would be handled by an ARD.
So it gets kind of complicated, but these are the things the principal is going to have
to check.
If Josh or Devin in this scenario were special ed students and we were looking at a long-term
change in their educational program it wouldn't go to a PRC committee would go
to their ARD committee so let's summarize what we know about teacher
initiated removal under Senate bill one seven points number one teacher removal
may be done if the teacher has documented repeated interference with
instruction in the classroom number two teacher removal may be done for unruly
disruptive or abusive behavior that seriously interferes with instruction in
the classroom. Number three, the teacher must remove the student if the student
commits a removable or expelable offense. Number four, the principal must conduct a
hearing within three school days. Number five, if removal to the AEP is not
required, then the principal can order the student to another appropriate
classroom, to in-school suspension, to the AEP, or back to the teacher's class.
Number six, if the teacher refuses to take the student back, the matter goes to
the Placement Review Committee, the PRC. And number seven, if the student has a
disability and the placement is to last more than 10 school days, it does not go
to the PRC, the matter goes to the ARD, the Admission Review and Dismissal
Committee. Now let's discuss in detail a subject that we've alluded to, removal to
the alternative education program. It should be pretty clear that the
legislature places great emphasis on alternative education programs in Senate
Bill 1. Again, this is not entirely new. Since 1984, when House Bill 72 was passed,
schools have been required to offer alternative education programs. Many
Many school districts had well-thought-out, well-funded programs.
Some school districts contracted with private organizations to run alternative education
programs.
But many school districts simply took a classroom, put a teacher in it or an aide, used it as
in-school suspension, and called it an alternative education program.
Here's what it might typically look like.
Hey, sit, sit, sit.
You guys, you guys, you guys, if you don't shut up, sit down.
Sit down, give it a whoosh, you hadn't been born.
Hey, hey.
Under the old law, that was a permissible alternative education program.
Not so anymore.
Under Senate Bill 1, it is clear that an alternative education program
should be a legitimate instructional program with an emphasis on the core curriculum.
Here are some things that school districts should think about
in terms of programming and setup
when they're establishing their alternative education programs.
Number one, the AEP can be on the regular campus or off it, but it must provide
separation of the alternative education program students from the other students.
Number two, the AEP is to focus on English, math, science, history, and
self-discipline. Number three, the AEP is to provide for both educational and the
behavioral needs of the students. It must include counseling. Number four, the
The AEP must be supervised.
The school cannot place a student in an unsupervised setting except for expulsion and suspension.
Number five, if removal to the AEP is required by state law, then it must include a suspension
from participation in or attendance at extracurricular activities.
Number six, off-campus AEPs are exempt from most of the requirements of the Texas Education
code. And number seven, upon transferring into a new school, that school can honor the AEP placement
order of the old school. Perhaps the most important change in the law with regard to AEPs
is that the legislature has mandated that students be removed to the AEP for certain offenses.
Rather than leaving this to local discretion, the legislature has outlined nine offenses which must
result in AEP placement. Now, the first seven of these are offenses which must result in AEP
placement if they occur on school property or at a school-related function. Number one,
if the student engages in conduct containing the elements of the offense of assault. Number two,
if the student engages in conduct containing the elements of the offense of a terroristic threat.
3. Selling, giving, delivering, possessing, using, or being under the influence of marijuana, a controlled substance, or a dangerous drug, if that conduct is punishable as a misdemeanor.
4. Selling, giving, delivering, possessing, using, being under the influence, or committing a serious act or offense while under the influence of alcohol, if that conduct is punishable as a misdemeanor.
5. Engaging in conduct containing the elements of an offense relating to abusable glue, aerosol paint, or volatile chemicals
6. Engaging in conduct containing the elements of the offense of public lewdness
7. Engaging in conduct containing the elements of the offense of indecent exposure
The legislature has then added two other offenses which must result in removal to the AEP regardless of where they happened and regardless of when they happened.
These are engaging in any conduct punishable as a felony and, number nine, engaging in conduct containing the elements of the offense of retaliation against a school employee.
It should be pretty clear that there are many offenses which would have called for expulsion
in the past, and under Senate Bill 1, the school can only remove the student to an AEP
for that type of offense.
But Senate Bill 1 also does contain a list of expellable offenses.
In fact, Senate Bill 1 mandates expulsion for a number of offenses.
They're contained in Section 37007.
Let's take a look at what the expellable offenses are.
Number one, if the student uses, exhibits, or possesses a firearm on school property
or at a school-related activity, that's an expellable offense.
Number two, if the student uses, exhibits, or possesses an illegal knife, again it can
be an illegal knife under the penal code or an illegal knife as defined by local policy.
If this is possessed on school property or at a school-related activity, that's an expellable
offense.
Number three, if the student uses, exhibits, or possesses a club, as that term is defined
in the penal code, on school property or at a school-related activity, that's an expellable
offense.
Number four, if the student uses, exhibits, or possesses a prohibited weapon pursuant
to the penal code, again, on school property or at a school-related activity, that's an
expellable offense.
Now number five has to do with various types of assault.
If the student commits an aggravated assault, a sexual assault, or an aggravated sexual
assault, that's an expellable offense if it occurs on school property or at a school-related
activity.
Number six is arson.
If the student commits arson pursuant to the penal code, that's an expellable offense,
again, if it occurs on school property or at a school-related activity.
Number seven is murder.
This is noteworthy.
This is the first time that the word murder has appeared in the Texas Education Code.
But if the student commits murder, capital murder, or criminal attempt to commit murder
or capital murder on school property or at a school-related activity, that's expellable.
Number eight, if the student commits indecency with a child, as that term is defined in the
Penal Code, on school property or at a school-related activity, that's expellable.
Number nine, aggravated kidnapping.
That term is also defined in the Penal Code, and if the student engages in that conduct
at school or at a school-related activity, that's an expellable offense.
Number 10, if the student engages in conduct involving drugs or alcohol at school or at
a school-related activity, it's an expellable offense if the conduct is punishable as a
felony.
So, for example, misdemeanor drug possession would call for removal to the AEP, whereas
felony possession would call for expulsion.
Number eleven, if the student engages in any conduct that's listed in these first ten in
retaliation against a school employee, that's an expellable offense no matter where it happens.
For example, if the student commits an aggravated assault against a teacher off school property,
that would be an expellable offense.
Number 12, the student may be expelled if the student engages in the conduct of criminal
mischief.
Now, this is one where the school may expel the student.
They're not required to expel the student.
Criminal mischief, if it's punishable as a felony, is expelable.
Number 13, if the student has been placed in an alternative education program for disciplinary
reasons and continues to engage in serious or persistent misbehavior in violation of
district's code of conduct that student may be expelled by the school district well we have
extensive lists of removable offenses and expellable offenses let's see how all this
plays out in a real life situation i'm sure you remember those students who were misbehaving in
mr stern's history class well let's look in today and see what they're up to now
Did you ever hear that joke, man, the shortest phrase you'll ever hear a pot smoker say?
Wait, wait, I heard, no.
All right, man, here it is. Check it out.
Ear!
Wait, so the phrase is ear? How do you spell ear?
It's kind of like, you know...
Hey, dude, shut up. I got something to tell you.
Alright, no man, that's cool. Go ahead.
Do you want a drink, man? Anybody?
You see, a eukaryotic cell is kind of like...
Have you ever seen Star Wars?
Shapoofler is Flaroosies.
A eukaryotic cell is like...
Check her out.
Hey, dude. Hey, dude. Hey, dude.
A eukaryotic cell is like the Death Star.
You understand? Yeah, there you go.
Okay, dig it. I brought some marmalade, and it's from the cafeteria, and it's munchies.
Do you want some?
Some marmalade, Matt?
Yeah, it's really good. Here, have some.
You brought marmalade?
Hey, how are you guys doing today?
Devin, what's that? Is that a cigarette?
Just marmalade.
Jenny, are you smoking on campus with these guys?
I'm really disappointed.
You know that smoking's against our school rules.
It's just marmalade.
What is that? Is that tobacco?
Let me see that thing, Devin.
Wait a minute.
That's not a...
Wacky tobacco, sir.
You guys are smoking marijuana.
This is more serious than I thought.
Well, listen, I'm going to have to call your parents.
You're going to have to come to my office
because this is a serious violation.
Now, let's go. Come on to the office.
Sir, did you ever think about eukaryotic cell?
You come on to my office.
That's darn, man.
This way.
All right.
Can I take my marmalade?
Mr. Do-Right followed up on this matter
quickly. First, he took the substance in question to Acme Labs for examination. There, Dr. I.M.
Stoned and his crack staff did the diagnostic work and pronounced the substance to be marijuana of
a high grade. Do-Right then gave written notice to the students and their parents of proposed
expulsion from school. As a result of numerous problems at home and at school, the parents of
the young girl, Jenny, placed her in a private psychiatric facility. Before the expulsion hearing
involving Devin and Josh could take place, Ms. Gotcha, mother and attorney at law, requested
a meeting with Mr. Do-Right. Let's look in. Okay, Ms. Gotcha, well, welcome to Blusterville High
School. And, you know, Ms. Goodheart, Devin's mother, could not make our meeting today, but
she did ask me to give her a call as we got started. So I'm going to put her on the speaker
phone just so everybody can hear. And let me give her a call, and we'll see what she has to say.
Hello?
Ms. Goodheart?
Yes?
This is Mr. Do-Right from the high school.
I'm just calling to let you know that our meeting is getting started.
I have Devin in my office, and I also have Ms. Gotcha and her son Josh.
And I'm sorry you couldn't make the meeting,
but you did say that you wanted us to give you a call
because you had something you wanted to tell me.
I'm so upset over this whole matter.
Well, Ms. Goodhart, I'm sure I know how you feel,
but was there something in specific you wanted me to know?
Devin is such a good boy.
Okay, I appreciate that, Ms. Goodhart.
Royanne, I'll take care of this, okay?
Yeah, your lawyer is here, and we'll be in touch after our meeting.
Thank you, Ms. Goodhart.
Okay, now, Ms. Gotch, I have to tell you,
I'm not real sure what we're doing here.
These boys were caught in possession of drugs on campus.
I've given notice of proposed expulsion, as called for by school board policy.
You understand they're entitled to a hearing, but this is not the hearing.
This is a meeting you've asked for, and I'm not exactly sure why.
And I do want to hear from you, but I want to hear from these two fellows first.
MS.
Well, and you will.
But I need to tell you that these two fine young men have been charged with juvenile
offenses.
juveniles they're young adults and they have court proceedings that they face
yes this is a crime and I am I am representing them in that but in light
of making a good faith effort to communicate with you and to protest
their innocence here I'm going to allow them to speak and waive their right to
remain silent well I appreciate that because I'm very interested to hear what
they have to say and I noticed you got them dressed up for the occasion that's
one one good step along the way uh devon i don't understand i was walking out there on the campus
that day and and there you were and i i thought the three of there were three of you and i thought
at first you guys were just uh smoking a cigarette which was bad enough i mean that's against our
policy too but then i find out it's an illegal drug what do you have to say well you know mr
do right it was after school you know everyone everyone just kind of disregards the rules when
it's not in school hours or before and you know it's it's uh it's like josh well uh i've elected
not to speak until i have a lawyer present honey you have a lawyer present oh okay it was jenny's
fault it was all Jenny's completely yeah yeah you think she's like nice and
pretty bangs mr. she's a freak Jenny Jenny yeah that nice girl that was
out there a little straight a temp stress try that on the side everywhere
oh so sides so you guys had no choice here I didn't even inhale anyway I
didn't even exhale well somebody was doing some sort of hailing I'll tell you
that because these guys were in possession of an illegal drug and one
One thing I know for sure, Ms. Gottschall, you may know the law, but I've been principal
of this high school for a while, and I know that we have no tolerance, zero tolerance
for drugs on our campus.
This is an expellable offense.
MS.
Well, Mr. Do-Right, it used to be an expellable offense, but let me take you through
a few different points in this particular case with these young men.
First of all, you have a very difficult burden to prove here in order to expel these young
men under the new Senate Bill 1.
Oh, I know all about Senate Bill 1, but it hasn't made drugs legal, you know, and we've been through this.
Last year, we expelled about six kids for possession of marijuana, and as far as the amount they had,
I can tell you some of those had fewer than these two students had, but we expel for any quantity of marijuana.
And don't tell me it's not marijuana, because I checked that out, Ms. Gottschall.
I personally checked that out, because I thought you might surface in this case before it was over.
And I took this down to our lab, and I had our experts check on whether this was, in fact, marijuana.
And you know what the experts told us?
The experts told us no question this was high-quality marijuana, in fact.
So we've got proof of this in this case.
So I'm not sure where you're coming from.
Well, I'm very well aware of how many students you expelled last year
because, as you recall, I defended several of those students.
Yes, ma'am.
In this instance, however, under Senate Bill 1, if you'll read closely under 37.007,
you will find that possession of marijuana in itself is not an expellable offense any longer.
Oh, really?
That's right.
And one of the difficulties you will face is, number one, to prove that these two gentlemen and not Jenny were the ones in possession.
Secondly, that it was indeed marijuana.
And if you seek to expel them from school, you'll have to show that it was enough marijuana to amount to a felony conviction.
A felony. Well, they're charged with a crime.
They're charged with a misdemeanor, sir, but not a felony.
In this instance, the only punishment you could give of a very serious nature would be the alternative education program,
if indeed you can prove that they were in possession of some substance of marijuana.
Let me get this straight.
You're telling me that students can come on our campus with illegal drugs and receive nothing but a slap on the wrist?
I mean, do I have to prove that they come with a pickup truck full of illegal drugs
before I can expel them from this campus?
Sir, I wouldn't say a pickup truck full.
But what I am telling you is that you'll have to have more than what you're claiming has been brought to your lab.
I've seen that lab report, and it is too small an amount to allow you to seek an expulsion.
What I'd like to do is save you the embarrassment and save your professional reputation
by keeping you from going through an expulsion hearing that you can only lose.
So you're telling me you're really looking out for my best interest.
Is that it, Ms. Gottschall?
Make no mistake about it, sir.
I represent these two fine young men.
There's no doubt that I am their lawyer and not yours.
However, I know that the taxpayers' money is not going to be well spent
if we go forward with a full-blown expulsion hearing under the facts of this case.
So you're saying I don't have a case unless I can prove that what they had amounted to a felony.
That's correct, sir.
Well, that's a new twist to me, Ms. Scotch.
And I'll tell you what I'll do, though.
I will take that up with our assistant superintendent.
That's who I report to.
And I'll discuss our little conversation here with our assistant superintendent, and we'll just see.
But I can tell you that the Blusterville School District is not going to stand for the possession of drugs on our campus by anybody.
We appreciate what your position is, sir, but I also know what the legal rights of my
clients are, and we look forward to working together with you on some alternative short
of expulsion.
Well, once again, Ms. Gottschall, our conversation has been very illuminating,
and I appreciate it, and I'll be in touch.
Devin, I'll be in touch with your mother, and Ms. Gottschall, I'll be in touch with
you as soon as I've had a chance to discuss this with our assistant superintendent.
So thank you, and I guess that concludes our conference.
Thank you.
You're quite welcome.
Bye.
I've done it again!
I wonder if our viewers are going to be as surprised as Mr. Do-Right
to learn that not all uses of drugs on campus are expelable offenses.
And I'm wondering if it's possible to expand the list of expellable offenses.
I don't think the statute is very clear about that,
but the guidance we've been given from TEA and their questions and answers on Senate Bill 1
says basically, no, that you're not going to expand the expellable offenses.
However, a school district may want to expand those offenses
for which a student can be placed in the alternative education program.
So I think that is permissible.
In light of the fact that that is not going to be foreclosing a student from going to school,
it simply is placing them in a different place in the school district.
So, Jim, is Ms. Gotcha right?
That is, that the only option available to Mr. Do-Right for these students is to place them in an AEP?
As usual, Ms. Gotcha is right, Frank.
I don't know why Mr. Do-Right doesn't just admit that right from the get-go.
He should know that.
But this is not an expellable offense under Senate Bill 1.
It is an offense that calls for mandatory removal to the AEP.
So Mr. Durite must place these students in an AEP.
Does Senate Bill 1 give him any discretion at all in making that decision?
Well, it doesn't appear to on the face of it, Frank.
You know, there was a lot of talk about local control in the last session of the legislature,
but when they got to Chapter 37, they seemed to forget about that,
and they mandate a whole bunch of things from Austin.
It says if you do this, you will go to AEP.
I think there may be times when schools are going to have to do some interpretation of some of the terms in the bill, though,
in order to distinguish one situation from another.
For example, we've been asked about students who innocently and accidentally leave a hunting rifle in their car or their truck
that they bring to school the next week.
Have they brought a gun to school, and are they in possession of that, and must they be expelled?
The statute on the face of it seems to say that, but there are situations like that that
the school will have to look at on a case-by-case basis through their due process procedures
and try to come up with decisions that are fair and equitable.
Let's talk about a different provision of Senate Bill 1 that says that anyone who
engages in conduct punishable as a felony at any time or any place must be removed to
an AEP.
What are the implications, Nan, for an administrator?
This is a portion of the statute that appears to have greatly enlarged the jurisdiction
of the school district to outside of the parameters usually of the school grounds or school activities.
It's a cause of some concern because we don't know what the limitations are on this.
To what degree is an administrator required to investigate a rumor of some felony activity
that they've heard a student engaged in?
The statutory language is somewhat vague.
It says that the conduct that a student engages in, it says nothing about conviction, it says
nothing about charges.
It's not clear exactly what kind of conduct that would be.
So it's going to be important that the administrator take a look at each case, analyze the evidence
they have before them, determine whether it is in the interest of the school district
them to pursue an investigation or somehow take disciplinary action against that student who's
engaged in that conduct what about the situation where this conduct may take place over the summer
and an administrator like mr do-right hears about an alleged incident that might constitute a felony
should mr do-right be concerned about investigating that particular situation
or should he assume that this is so far beyond the auspices of the school that he will not become involved?
I think that's going to have to be determined at a local level as far as whether it impacts the school community in some way.
I think we shouldn't lose sight of the fact that we're there to educate children, not to prosecute them for crimes.
But at the same time, I can see that it's important that a student understand that there are consequences for the actions they take,
And so that if they do violate the law, that the school will also be in working in conjunction with juvenile authorities to see that they feel the repercussions of that.
So that I think Mr. Do-Right's community will probably have input through the local school board as to whether they want Mr. Do-Right to really pursue these kinds of things that are pretty far removed from the actual school activities.
My inclination would be to say no, not for this kind of activity during the summertime at a camp away from school.
But perhaps if it had happened in town during the weekend, during the school year,
and it was a source of disruption in school, then that would be something he might choose to pursue.
Jim, let's talk about another provision of Senate Bill 1 that relates to extracurricular activities
and a student who has been placed in the AEP.
As I read the statute, it says that a student who has been placed in AEP for committing an AEP offense
cannot participate in or attend a school-sponsor-related activity.
No discretion again?
There's no discretion on that one.
If the student has committed an offense that by state law requires AEP removal,
then they must be suspended or prohibited from participation in and even attendance at extracurricular activities.
Is that like a Friday night football game, for example?
That's like a Friday night football game. That's right.
Well, suppose Mr. Do-Right says, I'm simply not going to enforce that,
and I'm not going to follow through with these allegations of felonious behavior that occurred over the summer.
I'm just simply not going to do those things because I don't have time to do them effectively.
Is that a good response for a principal to make to some of these provisions?
Well, I'll tell you, the concern that I would have as a lawyer,
Let's say that a student has been removed to AEP, attends the Friday night football game,
and principal knowingly permits him to attend,
and that student, while at that game, injures somebody through some sort of misconduct at the football game.
There's a much higher likelihood, in my mind, that the school district gets sued over that situation
because the allegation will be that the school district failed in its statutory duty,
and if the school district had carried out its duty, the student never would have even been there
and therefore the injury would not have occurred.
I'm not suggesting the school is going to be liable for an injury under those circumstances for that reason alone,
but I think it certainly raises the risk of litigation
and it certainly gives another issue to the litigation that the school is going to have to respond to.
Last question, Jim.
If Josh or Devin were either one of them special education,
then there would be some different steps that Mr. Do-Right would have to take.
What would they be?
Well, in that situation, we have two sets of laws we have to comply with.
We have state law and we have federal law.
Now, state law says they have to be removed to the AEP.
And we can comply with that provided that we can also meet our federal law obligation.
And under federal law, our obligation is, number one, to take that matter to an ARD committee.
Removing a special ed student to an alternative ed program for more than 10 consecutive days is clearly a change in placement.
That has to go through the ARD committee, or if the student is identified under 504, it goes through a 504 committee.
And the role of the committee in this process would be to make sure that the student's educational services in the alternative ed program will be appropriate,
so that whatever services that student needs to get an appropriate education will be delivered.
be delivered. I think that's one of the most important things that schools need
to think about when they're setting up and staffing their AEPs. They're gonna
have special ed students over there. They need to be prepared to handle them.
It should be pretty clear by now that Texas principals and assistant principals are
going to need some short-term disciplinary tools to use. With
restrictions in state law on expulsion and removal to the alternative education
program, campus-based administrators are going to need a clear understanding of
exactly what they can do by way of short-term discipline. Suspension remains
pretty simple. The legislature has enacted a statute authorizing suspension
and the principal simply needs to follow four steps in suspending a student.
Number one, ascertain that the student has committed a suspendable offense. That
term can pretty much be defined by the local school district. A suspendable
offense, according to state law, is the same thing as a removable offense. And keep in mind that the
local school board can define exactly what type of conduct would lead to a removal to the AEP.
Therefore, the local school board can define what's a suspendable offense. So number one,
the principal ascertains that the student has done something that could lead to suspension.
Number two, the principal should conduct a very simple informal hearing with the student. In this
hearing, the principal simply needs to advise the student of what the student is charged with
and give the student an opportunity to respond. If the student denies the charges, the principal
should inform the student what the basis of the allegations are. Number three, the principal
should suspend the student, but only for three days or less. State law restricts suspension to
three days or less. So there should be documentation from the principal to make clear that we did not
exceed that three-day limitation number four if the student has a disability the principal should
check that students record with regard to the accumulation of suspensions during the school
year now state law has no restriction on this a student can be suspended three days every time
that the student commits an offense for which suspension is called for but with regard to
students with disabilities federal law requires that we keep track of how many days that student
being suspended or removed from their regular program due to disciplinary reasons. When it
comes to the level of 16 days in a school year, the school is required to contact the parents
and have an ARD meeting. So the fourth step that the principal should follow in dealing with a
suspension is if the student has a disability, check the record with regard to the accumulation
of suspensions. Well, what about emergencies? The legislature has addressed that as well.
Section 37.019 of the code gives the principal the authority to order the immediate emergency removal of a student to an alternative education program.
The principal can do this based on a reasonable belief that the student's behavior is so seriously disruptive, abusive, or unruly that it seriously interferes with instruction or other school activities.
The principal merely has to give the student oral notice of the emergency removal and provide a
hearing after the fact as soon as it can reasonably be done. The rules are similar with regard to
emergency expulsion. The same statute authorizes an immediate emergency expulsion of a student
from school, but the grounds for this are considerably tighter. The principal can order
the emergency expulsion of a student only if the student's presence on campus represents
a danger of imminent harm to persons or property.
Again, the principal has to give the student oral notice of what the principal is doing
and provide an after-the-fact hearing as soon as that can reasonably be arranged.
Well I'm sure you're wondering what Mr. Do-Right is going to do with that student who assaulted
him shoved him up against the wall at the beginning of this video.
Let's return to our discussion group and we'll explore Mr. Do-Right's options.
So what can Mr. Do-Right do in this situation?
Let's go over the options.
How about expulsion?
This doesn't look to me to be an expellable offense.
It would be an expellable offense if it were an aggravated assault.
But to be aggravated, the student would have had to have used a weapon or threatened the
use of a weapon or inflicted serious bodily harm.
Mr. Do-Right walked right away from this incident.
There was no serious injury.
Mr. Do-Right may have been aggravated, but the assault was not.
That's right.
All right.
How about mandatory AEP placement?
I think this is a mandatory AEP placement.
This is an assault, and the statute does call for a mandatory removal, mandatory removal
from extracurricular activities also.
How about suspension?
Suspension would be available since the statute says that anything that is removable is automatically
suspendable.
One of the things Mr. Do-Right could do is suspend the student for one, two, or three
days and add AEP removal on top of that.
How about an emergency placement in AEP?
I don't think he can do that under these circumstances.
Now perhaps it depends on where Devin goes and what he does immediately after this.
We saw him run off camera.
The statute says that an emergency removal to AEP is authorized based on a reasonable
belief that the student is so disruptive or abusive that it's going to seriously interfere
with school activities.
Well, we didn't really see that on this video, so I think that would be kind of risky.
And even more risky would be an emergency expulsion, right?
Absolutely.
Emergency expulsion calls for a reasonable belief that there's an imminent danger to
persons or property.
Well, Devin's already inflicted whatever harm he's going to inflict, apparently, so I don't
think that would be called for.
What about reporting requirements, Nan, to the juvenile justice system?
Well, the new provisions provide that this kind of placement in an alternative education
program must be reported to the juvenile court authorities.
I think the juvenile courts are going to be surprised to be receiving these kinds of reports.
That's part of the changes that are going on within the statute concerning juvenile
justice involvement with school activities and with students and trying to get the school
districts to work in tandem with the juvenile justice system.
There will be provisions for a new sort of alternative education program that is actually
controlled by the juvenile justice system, which is to be put in place in 1996 in those
counties that have a population of more than 125,000 so we're going to see lots
of new changes as far as the involvement and interaction of the school districts
with the juvenile justice system what about any reporting requirements to the
local police the requirements for reporting to the police and other sorts
of law enforcement authorities relate to the more serious offenses but this
particular situation involving Devon would not fall within that category all
Right, so we have placement now in an AEP on a mandatory basis.
How long can Mr. Durye keep Devin in an AEP?
Well, there is no limitation that I have found in state law with regard to that.
It's a real interesting thing.
In fact, the state law says that the student can be kept in AEP beyond one year and into the next year
if the student engages in serious or persistent misconduct.
Well, obviously the student's engaged in serious misconduct.
otherwise they wouldn't be removed AEP in the first place so I'm not
recommending this but it seems to me that a student could be removed AEP the
first week of the first year of high school and stay there until they
graduate now we've got to add one caution to that and that is that the
statute also requires the school to have a review every 120 days so every 120
days we must give notice to the parents that we're conducting a review of the
situation and give them an opportunity to participate in that but as long as
the district has those 120 day reviews it looks to me like the student can be
kept in AEP for a very long time of course an AEP now is an educational
experience right and and that must address one of the interests of the
legislature in keeping students in the educational mainstream as they handle
discipline at the same time how can we some best summarize the key lessons here
to be learned, Nan and Jim, for administrators trying to fathom the details
of Senate Bill 1's discipline procedures?
I would suggest that administrators be very well educated themselves.
They need to know what Chapter 37 of the Texas Education Code says.
They need to know what's required of them.
They also need to convey to their teachers what the teacher's rights are
as well as what the teacher's responsibilities will be now under this new code.
Jim?
Well, I think that if we keep in mind what's the intent of Senate Bill 1, we'll do a good
job of interpreting the many ambiguities that it leaves us.
For example, some of the themes that come through for parents are that we do want parents
to be partners in this process.
We want to keep them informed and we want them to have a voice in what happens.
For teachers, I think the theme is we do want to give them greater control over what happens
in the classroom.
But greater control doesn't mean total control.
The teacher's control of that classroom is still subject to a check by the principal
and by the placement review committee or an ARD committee.
And with regard to administrators, I think the main theme that comes through is safety.
We want to make sure that the schools are safe, and that's why AEP students, for example,
must be separated from the students that are not.
I think if we keep those general themes in mind, we'll do a good job of interpreting
But there's going to be a lot of interpretation that has to be done on this one.
Thank you for watching!