“You Can’t Punish Me, It’s Related to my Disability “You Can’t Punish Me, It’s Related to my Disability!”: Discipline, BIPs and the Student Code of Conduct By Cynthia S. Buechler BUECHLER & ASSOCIATES, P.C. 3660 Stoneridge Road, Suite D-101 Austin, Texas 78746 (512) 322-0588 attorneys@buechlerlaw.com

1. If a student has been arrested for aggravated robbery outside of school, what can the school do? In accordance with Texas Education Code Section 37.081, the district may expel a student and elect to place the student in an alternative setting if the student has received deferred prosecution or been found by a court or jury to have engaged in delinquent conduct or is charged with engaging in a felony offense under Title 5 of the penal code; or the felony offense of aggravated robbery. If the student is of the age to be charged as an adult, he can be placed in an alternative setting for these offenses if he has received probation or deferred adjudication or has been convicted or has been arrested or charged.

2. What is a Title 5 offense? A Title 5 felony offense is a crime against a person. Those include offenses assault, sexual assault, aggravated assault, aggravated sexual assault, injury to a child, elderly individual, or disabled individual, abandoning or deadly conduct, terroristic threat, homicide, kidnapping.

3. How long can a student who has committed aggravated robbery be sent to the DAEP? The Texas Education Code Section 37.0081(d) provides that a student that has engaged in a Title 5 felony offense or aggravated robbery can be placed in an alternative setting until:   the student graduates from high school; the charges are dismissed or reduced to a misdemeanor offense; or the completed the term of the placement or is assigned to another program.

4. Is the placement subject to review? A student placed in an alternative setting for a felony 5 offense or aggravated robbery is entitled to the periodic review prescribed by Section 37.009(e).

5. Can a paraprofessional working with the student be informed that the student has been arrested for the Title 5 offense? A principal or principal’s designee must inform each educator who has responsibility for, or is under the direction and supervision of an educator who has responsibility for (i.e., a paraprofessional), the instruction of a student who has engaged in any violation that constitutes a Title 5 felony offense or aggravated robbery. Texas Education Code 37.006(o).

6. What happens if the educator tells someone else about the student’s arrest? Each educator must keep the information received confidential from any person not entitled to the information. The State Board for Education Certification may revoke or suspend the certification of an educator who intentionally breaches the confidentiality.

7. What kind of placement can be made with the student who is a registered sex offender? When a student is required to register as a sex offender and is under court supervision, including probation, community supervision, or parole, the school must remove the student from the regular classroom and place the student in an alternative educational program for at least one semester. If the student is a registered sex offender, but not under any form of court supervision, the school has the discretion to place the student in an alternative education program for one semester or in the regular classroom. The district may not place the student in the regular classroom if the district board of trustees determines that the student’s presence in the regular classroom: (1)threatens the safety of other students or teachers; (2) will be detrimental to the educational process; or (3) is not in the best interests of the district’s students. Texas Education Code 37.304 and 37.305.

8. If the student is later found not to have engaged in delinquent conduct, does the school have to return him back to his regular campus? Under Texas Code of Criminal Procedure Article 15.27(g), the office of the prosecuting attorney or the office or official designated by the juvenile board must inform the district within two working days if the student’s case was refused for lack of prosecutorial merit or the student was found not guilty or not to have engaged in delinquent conduct. Once the school receives such a notice, the superintendent or the superintendent’s designee must review the student’s placement in the DAEP. The student may not be returned to the regular classroom pending the review. The review must be schedule with the student’s parent or guardian not later than the third class day after the district receives notice. After reviewing the notice and receiving information from the student’s parent or guardian, the school may continue the student’s placement in the DAEP if there is reason to believe that the presence of the student in the regular classroom threatens the safety of other students or teachers. Texas Education Code 37.006(h).

9. What can be done when a student’s DAEP conference has been scheduled and the student withdraws before the conference occurs? If a student withdraws from the district before an order for placement in a DAEP or expulsion is entered, the principal or board, as appropriate, may complete the proceedings and enter an order. If the student subsequently enrolls in the district during the same time or subsequent school year, the district may enforce the order at that time except for any period of the placement or expulsion that has been served by the student on enrollment in another district that honored the order. Texas Education Code 37.009(i).

10. What can a district do if a transfer student engaged in conduct at a previous district that would require a DAEP removal, but the prior district did not hold the conference after the student withdrew? If the previous district failed to enter an order after the student withdrew, the next district in which the student enrolls may complete the proceedings and enter an order. Texas Education Code 37.009(i).

11. Do the restraint laws apply to general education students? Texas Education Code 37.0021 was created to address special education students.

12. What constitutes a restraint? Restraint means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of a student’s body. Texas Education Code 37.0021.

13. When can restraint be used? Restraint can be used when the child’s behavior poses a threat of imminent and serious physical harm to the child or others; or property destruction.

14. Does stopping a student with special needs from eloping constitute a restraint? No. Limited physical contact with the child to promote safety (e.g., holding the child’s hand) prevent a potentially harmful action (e.g., running into the street), teach a skill or provide comfort does not constitute a restraint. Texas Administrative Code 89.1053(f)(2).

15. If a student requires a seat belt, does that constitute a restraint? No. Seat belts and other safety equipment used to secure children during transportation is not considered a restraint. Texas Administrative Code 89.1053 (f)(3).

16. Does the parent need to be informed about the restraint? On the day restraint is utilized, a good faith effort must be made to verbally notify the parent regarding the use of restraint.   Written notification of the use of restraint must be placed in the mail or otherwise provided to the parent within one school day of the use of restraint. Written notification to the parent and documentation to the child’s special education eligibility folder must include the following? Name of the child; Name of the staff member or staff members administering the restraint; Date of the restraint and the time the restraint began and ended; Location of the restraint; Nature of the restraint; A description of the activity in which the child was engaged immediately preceding the use of restraint; The behavior that prompted the restraint; The efforts made to de-escalate the situation and alternatives to restraint that were attempted; and Information documenting parent contact and notification.

17. Does each campus have to have a team trained on the use of restraint? Yes. A core team of personnel on each campus must be trained in the use of restraint. The team must include a campus administrator or designee and any general or special education personnel likely to use restraint. The training must include instruction in current professionally accepted practices and standards regarding behavior management and the use of restraint.

18. Do the restraint laws apply to police officers? The restraint laws apply to a peace officer if the peace officer is employed or commissioned by a school district; or provides as a school resource officer, a regular police presence on a school district campus under a memorandum of understanding between the district and a local law enforcement agency.

19. Can a time-out room be locked? No. “Time-out” means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting that is not locked and from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object. Texas Education Code 37.0021(3).

20. If a student has a weapon, can the student be locked in a room? When a student possesses a weapon and the confinement is necessary to prevent the student from causing bodily harm to the student or another person the law does not prevent a student’s locked, unattended confinement in an emergency situation while awaiting the arrival of law enforcement personnel. Texas Education Code 37.0021(f).

21. What are the physical requirements of a time-out room? A time out room must be at least 50 square feet. Texas Education Code 37.0021.

22. Can a student be removed from special transportation for behavior? Special transportation is a related service and is only provided when it is necessary due to the student’s disability. Consequently, a student cannot be removed from special transportation.

23. A five year old student brings marijuana to school 23. A five year old student brings marijuana to school. Can he/she be removed to the DAEP? A student that is younger than six years of age may not be removed from class and placed in a disciplinary alternative education program. Texas Education Code 37.006(l).

24. Can an elementary student be placed at the DAEP with middle school students? An elementary school student may not be placed in a disciplinary alternative education program with any other student who is not an elementary school student. Texas Education Code 37.006(f).

25. If an allegation of bullying against a student with a disability is confirmed by the administration, what must be done? An ARD committee meeting must be scheduled to consider when the bullying affected the student’s ability to receive FAPE, and if so, what measures need to be taken to remedy the lack of FAPE for the time period when the bullying occurred.

26. Can a teacher refuse to have a behaviorally challenged student with special needs in his/her class? No. The placement of a student with a disability who receives special education services may be made only by a duly constituted ARD. Texas Education Code Section 37.004. Any disciplinary action regarding a student with a disability who receives special education services that would constitute a change in placement under federal law may be taken only after the student’s ARD committee conducts a manifestation determination review.

27. If the student has a BIP, does the student code of conduct no longer apply? No. The BIP supplements the student code of conduct. It does not replace it. Only in rare instances would the student code of conduct not apply to a student. If a student is severely impaired cognitively, the student code of conduct may not apply because the student has no intent.

28. If a student has a BIP, does the school district have to follow the strategies in sequential order? The strategies contained in the BIP are not sequential in nature. The level of the student’s behavior dictates what strategies are to be utilized.

29. If a student’s BIP does not contain the consequence of DAEP, can the student be sent to the DAEP? The focus of the BIP is to shape the student’s behavior with positive strategies. It is not intended to have every consequence listed on the BIP in order for the consequence to be administered. That is why the BIP supplements the student code of conduct.