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Student Discipline Student Discipline

William Allan Kritsonis, William Allan Kritsonis, PhDPhD

Suspension v. ExpulsionSuspension v. Expulsion

TEC states that a student may be suspended from TEC states that a student may be suspended from school if the student engages in conduct identified school if the student engages in conduct identified in the student code of conduct for which a student in the student code of conduct for which a student may be suspended—the local school district is may be suspended—the local school district is authorized to decide what types of offenses should authorized to decide what types of offenses should call for a suspension. call for a suspension.

Suspension is designed as a short-term disciplinary Suspension is designed as a short-term disciplinary action. Under TEC 37.005 suspension is limited to action. Under TEC 37.005 suspension is limited to three days per offense, but there is no limit on the three days per offense, but there is no limit on the number of suspensions that might be imposed on a number of suspensions that might be imposed on a student, provided that each is for a separate student, provided that each is for a separate incident of misconduct. This applies only to out-of-incident of misconduct. This applies only to out-of-school suspension, not in-school suspension. school suspension, not in-school suspension.


Expulsion is the harshest penalty the school can impose, Expulsion is the harshest penalty the school can impose, and thus is reserved for only the most serious offenses and and thus is reserved for only the most serious offenses and is available only with students who are at least 10 years is available only with students who are at least 10 years old. old.

TEC 37.007 spells out several types of conduct that require TEC 37.007 spells out several types of conduct that require expulsion from school. They are: (1) possession of weapons expulsion from school. They are: (1) possession of weapons

(2) assaultive offenses (2) assaultive offenses (3) arson (3) arson (4) murder, capital murder, criminal attempt to commit murder (4) murder, capital murder, criminal attempt to commit murder

or capital murder or capital murder (5) indecency with a child (5) indecency with a child (6) aggravated kidnapping (6) aggravated kidnapping (7) drug or alcohol offenses if punishable as a felony (7) drug or alcohol offenses if punishable as a felony (8) retaliatory commission of an expellable offense against a (8) retaliatory commission of an expellable offense against a

school employee. school employee. The first 7 must occur on school property or school-related The first 7 must occur on school property or school-related

function, but retaliation is expellable no matter where it function, but retaliation is expellable no matter where it took place. took place.


• A district has discretion over the following offenses: A district has discretion over the following offenses: (1) serious or persistent misconduct while placed (1) serious or persistent misconduct while placed

in a DAEP in a DAEP (2) drug or alcohol offenses, if not punishable as (2) drug or alcohol offenses, if not punishable as

a felony a felony (3) inhalant offenses (3) inhalant offenses (4) criminal mischief if punishable as a felony. (4) criminal mischief if punishable as a felony.

Most students will be expelled from the school Most students will be expelled from the school programs (including DAEP) to a Juvenile Justice AEP programs (including DAEP) to a Juvenile Justice AEP (JJAEP) or other school program. (JJAEP) or other school program.

Because a student’s “property right” to a public Because a student’s “property right” to a public education is being taken, the 14th amendment education is being taken, the 14th amendment requires that the student be afforded an appropriate requires that the student be afforded an appropriate level of due process, although the Education Code level of due process, although the Education Code does not tell us how much process is due. does not tell us how much process is due.


37.009 provides 37.009 provides ““Before a student may be expelled under Section Before a student may be expelled under Section

37.007, the board or the board’s designee must 37.007, the board or the board’s designee must provide the student a hearing at which the student provide the student a hearing at which the student is afforded appropriate due process as required by is afforded appropriate due process as required by the federal constitution and which the student’s the federal constitution and which the student’s parent or guardian is invited in writing to attend.” parent or guardian is invited in writing to attend.” State law imposes two other requirements State law imposes two other requirements

(1) the student is entitled to be represented at an expulsion (1) the student is entitled to be represented at an expulsion hearing by some adult who can give guidance to the student; hearing by some adult who can give guidance to the student; this person is usually the parent or guardian, but can be this person is usually the parent or guardian, but can be someone else, as long as it is not a district employee someone else, as long as it is not a district employee

(2) if an expulsion is ordered by the board’s designee, then it (2) if an expulsion is ordered by the board’s designee, then it is appealable to the board, and then to the district court of is appealable to the board, and then to the district court of the county in which the school district’s administrative office the county in which the school district’s administrative office is located. is located.


School districts can rely on student or staff School districts can rely on student or staff witnesses, and even read their written witness witnesses, and even read their written witness statements at an expulsion hearing, without a right statements at an expulsion hearing, without a right to cross-examine by the accused student. to cross-examine by the accused student.

Courts have decided that such prerecorded Courts have decided that such prerecorded statements (considered hear-say in court) are statements (considered hear-say in court) are admissible in student discipline matters. admissible in student discipline matters.

The minimum due process requirements for a long-The minimum due process requirements for a long-term expulsion consist of: term expulsion consist of: (1) oral and written notice of the charges against the (1) oral and written notice of the charges against the

student student (2) an explanation of the evidence (2) an explanation of the evidence (3) an opportunity for the student to present his side of (3) an opportunity for the student to present his side of

the story.the story.


Reasons for denying the right to cross examine include: Reasons for denying the right to cross examine include: (1) the fact that the administrators who investigate the (1) the fact that the administrators who investigate the

offenses are qualified to determine the truthfulness of offenses are qualified to determine the truthfulness of student accusers student accusers

(2) the fact that, if forced to testify, any students would fail (2) the fact that, if forced to testify, any students would fail to come forward to come forward

(3) reasons associated with administrative convenience. (3) reasons associated with administrative convenience. The best policy to follow when students are The best policy to follow when students are

caught in the act of breaking a school rule and caught in the act of breaking a school rule and admit guilt is to give them notice of the rule admit guilt is to give them notice of the rule violation and an opportunity in the presence of violation and an opportunity in the presence of their parents or a representative to confirm their their parents or a representative to confirm their admission of guilt in writing and to waive formal admission of guilt in writing and to waive formal due process rights.due process rights.


37.009 provides 37.009 provides ““Before a student may be expelled under Section Before a student may be expelled under Section

37.007, the board or the board’s designee must 37.007, the board or the board’s designee must provide the student a hearing at which the student provide the student a hearing at which the student is afforded appropriate due process as required by is afforded appropriate due process as required by the federal constitution and which the student’s the federal constitution and which the student’s parent or guardian is invited in writing to attend.” parent or guardian is invited in writing to attend.” State law imposes two other requirements State law imposes two other requirements

(1) the student is entitled to be represented at an expulsion (1) the student is entitled to be represented at an expulsion hearing by some adult who can give guidance to the student; hearing by some adult who can give guidance to the student; this person is usually the parent or guardian, but can be this person is usually the parent or guardian, but can be someone else, as long as it is not a district employee someone else, as long as it is not a district employee

(2) if an expulsion is ordered by the board’s designee, then it (2) if an expulsion is ordered by the board’s designee, then it is appealable to the board, and then to the district court of is appealable to the board, and then to the district court of the county in which the school district’s administrative office the county in which the school district’s administrative office is located. is located.

Off-Campus RulesOff-Campus Rules

Schools retain the same authority over students at school-sponsored Schools retain the same authority over students at school-sponsored activities occurring off campus as they have when students are on activities occurring off campus as they have when students are on campus. campus. According to TEC 37 According to TEC 37

students must be removed to a DAEP if they engage in conduct that students must be removed to a DAEP if they engage in conduct that would be felonious under certain sections of the Texas Penal Code. would be felonious under certain sections of the Texas Penal Code.

One factor that comes into play with regard to off-campus behavior is One factor that comes into play with regard to off-campus behavior is the nature of the disciplinary punishment. the nature of the disciplinary punishment.

If the proposed sanction is a suspension from extracurricular If the proposed sanction is a suspension from extracurricular activities, rather than a suspension from school, the courts are activities, rather than a suspension from school, the courts are much more likely to support the school district’s position. The much more likely to support the school district’s position. The courts have consistently ruled that participation in athletics and courts have consistently ruled that participation in athletics and other extracurricular activities is a “privilege” rather than a “right.” other extracurricular activities is a “privilege” rather than a “right.” Therefore, where these activities are concerned, schools have more Therefore, where these activities are concerned, schools have more authority to create and enforce rules, even those that apply off authority to create and enforce rules, even those that apply off campus. campus.

A second key factor with regard to off-campus activity is whether or not A second key factor with regard to off-campus activity is whether or not the school has some legitimate interest at stake; examples include the the school has some legitimate interest at stake; examples include the use of the internet. use of the internet.

If the student’s activity moves beyond “offensive” to “threatening” If the student’s activity moves beyond “offensive” to “threatening” the school can assert its interest in maintaining safety by taking the school can assert its interest in maintaining safety by taking disciplinary action. disciplinary action.

Off-Campus RulesOff-Campus Rules

Killion v. Franklin Regional School District (2001) Killion v. Franklin Regional School District (2001) a student composed a top 10 list listing the personal a student composed a top 10 list listing the personal

and professional failings of the school’s AD at his home and professional failings of the school’s AD at his home and he emailed it to others who printed and distributed and he emailed it to others who printed and distributed it at school. The school suspended the student and it at school. The school suspended the student and removed him from the track team, but at regional court removed him from the track team, but at regional court the case was overturned and the court held that the the case was overturned and the court held that the school had failed to show that the student’s actions school had failed to show that the student’s actions were materially disruptive to the education process. were materially disruptive to the education process.

JS, a Minor v. Bethlehem Area School District JS, a Minor v. Bethlehem Area School District A student created a website against his algebra A student created a website against his algebra

teacher that was threatening; the court decided that teacher that was threatening; the court decided that the conduct was materially disruptive and a substantial the conduct was materially disruptive and a substantial invasion of the rights of others and the student’s invasion of the rights of others and the student’s expulsion was upheld. expulsion was upheld.

Due ProcessDue Process

Notice/hearing Notice/hearing There are 3 key concepts necessary to an There are 3 key concepts necessary to an

understanding of the due process clauses in understanding of the due process clauses in our Constitution: our Constitution:

(1) There must be some action of the state—(1) There must be some action of the state—generally speaking, actions by private entities do not generally speaking, actions by private entities do not implicate the due process clause implicate the due process clause

(2) the state must have deprived the individual of (2) the state must have deprived the individual of “life, liberty, or property” –a person who sues over a “life, liberty, or property” –a person who sues over a violation of due process must assert a “property violation of due process must assert a “property interest” or “liberty interest” interest” or “liberty interest”

(3) the nature of the process due depends on the (3) the nature of the process due depends on the severity of the deprivation.severity of the deprivation.

Due ProcessDue Process In the case In the case Dixon v. Alabama State Board of Dixon v. Alabama State Board of

EducationEducation, the court held that students at a , the court held that students at a public college are entitled to fair notice of the public college are entitled to fair notice of the rules they were charged with breaking and a fair rules they were charged with breaking and a fair hearing before they could be expelled and the hearing before they could be expelled and the court also established what it considered to be court also established what it considered to be the components of fair notice and a fair hearing: the components of fair notice and a fair hearing:

(1) the notice should contain a statement of the specific (1) the notice should contain a statement of the specific charges and the grounds that, if proven, would justify charges and the grounds that, if proven, would justify expulsion expulsion

(2) students should be given an opportunity to present (2) students should be given an opportunity to present to the board of trustees or administrative officials of the to the board of trustees or administrative officials of the college their own defense against the charges, college their own defense against the charges, including the right to call witnesses on their behalf including the right to call witnesses on their behalf

(3) students should be apprised of the results and (3) students should be apprised of the results and findings of the hearing in a report open to their findings of the hearing in a report open to their inspection. inspection.

Due ProcessDue Process

Goss v. Lopez Goss v. Lopez deals with due process in deals with due process in public schools. public schools.

In In Meyer v. Austin (1999)Meyer v. Austin (1999), the court , the court emphasized that due process must be emphasized that due process must be provided to the student, not the parents. provided to the student, not the parents.

The greater the loss suffered by the The greater the loss suffered by the student, the more sympathetic courts are student, the more sympathetic courts are likely to be to claims of lack of due process likely to be to claims of lack of due process and the courts do not appear very and the courts do not appear very sympathetic to disputes over a students sympathetic to disputes over a students grades. grades.

Goss v. LopezGoss v. Lopez

In Ohio, 9 students were given a 10-day suspension from In Ohio, 9 students were given a 10-day suspension from school and the school principal did not hold hearings for the school and the school principal did not hold hearings for the affected students before ordering the suspensions. affected students before ordering the suspensions.

The US Supreme Court concluded that due process is required The US Supreme Court concluded that due process is required before a student can be suspended from school. Since the before a student can be suspended from school. Since the “deprivation of property” imposed by the state is less harsh “deprivation of property” imposed by the state is less harsh in a case of short-term suspension, the “process” that is in a case of short-term suspension, the “process” that is “due” is much less burdensome. “due” is much less burdensome.

In this case, the Court concluded that, because the state In this case, the Court concluded that, because the state provides compulsory schooling, even a short-term provides compulsory schooling, even a short-term suspension deprives the student of a property right and, suspension deprives the student of a property right and, thus, requires due process. In cases of suspensions of 10 thus, requires due process. In cases of suspensions of 10 days or less, the Court ruled that due process requires days or less, the Court ruled that due process requires school officials to give the student informal notice of the school officials to give the student informal notice of the misbehavior and an opportunity to offer an explanation. misbehavior and an opportunity to offer an explanation.

Corporal PunishmentCorporal Punishment

Corporal punishment continues to be legal in Texas and Corporal punishment continues to be legal in Texas and also continues to be one of the few areas where local also continues to be one of the few areas where local control truly exists. control truly exists.

There is no state law regarding corporal punishment, There is no state law regarding corporal punishment, therefore the decisions are left to local school officials. therefore the decisions are left to local school officials.

In In Ingraham v. WrightIngraham v. Wright, the Court ruled that corporal , the Court ruled that corporal punishment of public school students punishment of public school students

(1) did not require any formal due process measures, such (1) did not require any formal due process measures, such as notice and a hearing as notice and a hearing

(2) under no circumstances could be considered “cruel and (2) under no circumstances could be considered “cruel and unusual punishment” as that term is used in the Eighth unusual punishment” as that term is used in the Eighth Amendment. Amendment.

TEC 37.0021 absolutely prohibits the use of “seclusion” TEC 37.0021 absolutely prohibits the use of “seclusion” by public schools. by public schools.

Seclusion is defined as a technique in which a student is Seclusion is defined as a technique in which a student is confined in a locked box, locked closet, or locked room that confined in a locked box, locked closet, or locked room that is designed solely to seclude a person and whose area is is designed solely to seclude a person and whose area is less than 50 square feet. less than 50 square feet.

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