By Kevin Lungwitz
Student discipline is a specialty unto itself. Proving the point, 2015 legislation requires each campus to have a “campus behavior coordinator.”1 This person may be the principal or any other campus administrator selected by the principal. The campus behavior coordinator is “primarily responsible for maintaining discipline,” as that task is defined by law or district and campus policies.
Unless restricted by campus or district policy, the campus behavior coordinator has the same disciplinary authority as a principal or other campus administrator. Unless modified, the campus behavior coordinator shall:
- Promptly notify the parent/guardian by telephone and by written notice to the student (for delivery to the parent/guardian) on the day the action is taken, when the student is placed into in-school suspension (ISS), out-of-school suspension (OSS), DAEP, JJAEP, is expelled, or is taken into custody by law enforcement.
- If the parent/guardian has not been reached by phone by 5 pm, written notice shall be mailed to the parent/guardian on the next business day.
- If the campus behavior coordinator is not available to provide these notices, the principal shall do it.
Legislation passed this year (2019) requires districts to post the email address and dedicated telephone number of the campus behavior coordinator on the district website.2
The beginning of the school year is a great time for the principal and the campus behavior coordinator (if they are two different people) to review all of the district’s student discipline policies, as well as new laws that have been passed.
Disciplinary Restrictions on Students Below Grade Three
There are different legal lenses through which student discipline events must be analyzed. Special education law, disability law and homelessness come to mind as factors that must be considered in a disciplinary event. Likewise, a student’s grade level is relevant.
A student who is enrolled below third grade may not be placed in out-of-school suspension (OSS) unless while on school property or while attending a school-sponsored or school-related activity on or off of school property, the student engages in:
- Conduct that contains the elements of an offense related to weapons under Texas Penal Code sections 46.02 or 46.05;
- Selling, giving, or delivering to another person or possessing, using, or being under the influence of any amount of marijuana or a controlled substance, as defined by the Texas Health and Safety Code (THSC) Chapter 481, or by 21 U.S.C. Section 801 et seq.; a dangerous drug, as defined by the THSC Chap. 483; or an alcoholic beverage, as defined by the Texas Alcoholic Beverage Code 1.04; or
- Conduct that contains the elements of a violent offense related under Texas Penal Code sections 22.01, 22.011, 22.02, or 22.021.3
Let us unpack the three exceptions above. To paraphrase, a student below third grade can be assigned OSS if (1) weapons or (2) drugs are involved. Check and check. Those are usually easy to figure out. If that is the case, drill down into the cited laws or check with the school lawyer to make sure you are on firm footing.
But what about number three above? There are four laws cited in number three which require a little more unpacking. These four laws are referred to as “violent offenses,” which if violated would allow OSS to be given to a student below third grade. Three of the four laws relate to sexual assault, aggravated assault and aggravated sexual assault. Let us agree those are “violent offenses,” per se.
Then there is Texas Penal Code section 22.01. This relates to what some refer to informally as “simple assault” which can occur when a person causes bodily injury to another; threatens bodily injury to another; or causes provocative physical contact with another.
So, can a second grader be assigned OSS for merely threatening a student or staffer with injury? Or for causing provocative physical contact with another? (e.g. spitting, bumping, shoving, grabbing a Crayon, toy, purse or backpack away from someone) Does the act have to reach some unspecified level to be “violent” like it says in number three above, or is a “simple assault” violent per se?
The law is unclear. If a kindergartener’s threat or provocative physical contact with another is violent per se, this exception for sending a student below third grade to OSS could overtake the rule. If this is your set of facts, it would be best to run this by the school lawyer before assigning a student below third grade to OSS for simple assault.
Despite the grade of the student, House Bill 65 (2019) adds OSS to the list of disciplinary placements that must be reported to TEA. For each OSS, the district must report the student’s race, sex and date of birth, among other data.4
Aversive Techniques Prohibited
In related disciplinary news, Senate Bill 712 (2019) prohibits the use of aversive techniques, which are disciplinary techniques intended to cause physical or emotional discomfort or pain, other than the lawful use of corporal punishment.5
Among the prohibited techniques are:
- Electric shock or any procedure that involves the use of pressure points or joint locks;
- Noxious, toxic or otherwise unpleasant spray, mist, or substance near the student’s face;
- Denying adequate sleep, air, food, water, shelter, bedding, physical comfort, or access to a restroom;
- Ridiculing or demeaning the student in a manner that adversely affects learning or mental health or constitutes verbal abuse;
- Immobilizing all four extremities with devices, materials or objects, including prone or supine floor restraint;
- Impairing breathing;
- Restricting circulation;
- Securing the student to a stationary object while sitting or standing;
- Inhibiting, reducing or hindering the student’s ability to communicate;
- Chemical restraint;
- Using timeout that precludes the student from progressing appropriately in the curriculum and annual goals in the IEP, including physically isolating the student; or
- Depriving the student of one or more senses (except that this can be done if it does not cause the student pain or discomfort or it complies with the IEP or BIP).
The Texas Education Agency will provide future guidance on prohibited aversive techniques. In the meantime, make sure to alert your teachers, coaches, and paraprofessionals of this new law.
Be Mindful About Discipline Disparity
It is important to note the U.S. Commission on Civil Rights recently concluded students with disabilities are twice as likely to be suspended as others; and students of color are prone to receive harsher and longer punishments than their white peers for similar offenses.6 The Commission has urged the U.S. Department of Education to rigorously enforce civil rights laws.
Along with grade level, disabilities, special education, homelessness, etc., making sure your campus’s disciplinary punishments are objectively and neutrally applied is another critical set of lenses through which to view all disciplinary events.
Kevin Lungwitz is TEPSA’s Outside General Counsel.
1Tex. Educ. Code Sec. 37.0012
2Tex. Educ. Code Sec. 26.015 (SB 1306)
3Tex. Educ. Code Sec. 37.005 (c)
4Tex. Educ. Code Sec. 37.020(f)
5Even the lawful use of corporal punishment can be a no-win for the administrator. Unintended bruising or injury to the student could result in a myriad of legal troubles for the educator.
6Carolyn Thompson, Panel: Disabled Students of Color Punished More, Austin American Statesman, July 24, 2019, at A7.
TEPSA News, September/October 2019, Vol 76, No 5
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Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.