Suspensions, Emergency Removals and Placements in DAEP or JJAEP: Addressing Discipline with the Special Needs Student Cynthia S. Buechler Buechler & Associates, P.C. 3660 Stoneridge Road Suite D-101 Austin, TX 78746 attorneys@buechlerlaw.com

A day without discipline issue is a day that school is out A day without discipline issue is a day that school is out. Discipline is an ever present issue for educators.

Suspensions Under Texas Education Code §37.005, the principal or other appropriate administrator may suspend a student who engages in conduct identified in the school’s student code of conduct as grounds for a suspension. The suspension may not exceed three school days.

Suspensions The 85th Legislature also amended the statute as to suspension as follows: (c) A student who is enrolled in a grade level below grade three may not be placed in an out-of-school suspension 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:

Suspensions conduct that contains the elements of an offense related to weapons under Section 46.02 or 46.05, Penal Code; conduct that contains the elements of a violent offense under Section 22.01, 22.011, 22.02, or 22.021, Penal Code; 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 Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.; a dangerous drug, as defined by Chapter 483, Health and Safety Code; or an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code.

Suspensions Further, the Legislature adopted §37.0013 which provides that a school can implement a discipline alternative for students below grade three.

Suspensions The Program Must: be age-appropriate and research-based; provide models for positive behavior; promote a positive school environment; provide alternative disciplinary courses of action that do not rely on the use of in-school suspension, out-of-school suspension, or placement in a disciplinary alternative education program to manage student behavior; and

Suspensions provide behavior management strategies, including: positive behavioral intervention and support; trauma-informed practices; social and emotional learning; a referral for services, as necessary; and restorative practices.

Suspensions (b) Each school district and open-enrollment charter school may annually conduct training for staff employed by the district or school on the program adopted under Subsection (a).

Emergency Placement and Expulsion Texas Education Code §37.019 allows the principal or principal’s designee to order the immediate placement of a student in a disciplinary alternative education placement if the principal or principal’s designee reasonably believes the student’s behavior is so unruly, disruptive, or abusive that it seriously interferes with a teacher’s ability to communicate effectively with the students in a class, with the ability of the student’s classmates to learn, or with the operation of school or a school-sponsored activity.

Emergency Placement and Expulsion This subchapter also does not prevent the principal or the principal’s designee from ordering the immediate expulsion of a student if the principal or the principal’s designee reasonably believes that action is necessary to protect persons or property from imminent harm.

Emergency Placement and Expulsion The statute provides that at the time of the emergency placement or expulsion, the student must be given oral notice of the reason for the action. The reason must be a reason for which placement in a DAEP or expulsion may be made on a nonemergency basis.

Emergency Placement and Expulsion Within a reasonable time after the emergency placement or expulsion, but not later than the 10th day after the date of the placement or expulsion, the student must be accorded the appropriate due process.

Emergency Placement and Expulsion If the student subject to the emergency placement or expulsion is a student with disabilities who receives special education services, the emergency placement or expulsion is subject to IDEA.

Emergency Placement and Expulsion A principal or principal’s designee is not liable in civil damages for an emergency placement.

DAEP Placements Mandatory Offenses: False alarm or report or a terroristic threat; Commits the following on or within 300 feet of school property, or while attending school-sponsored or a school-related activity on or off of school property: Engages in conduct punishable as a felony; Assault;

DAEP Placements Mandatory Offenses (Cont’d): Sells, gives or delivers to another person or possesses or uses or is under the influence of: Marihuana or a controlled substance; A dangerous drug; Sells, gives or delivers to another person an alcoholic beverage, commits a serous act or offense while under the influence of alcohol, or possesses, uses, or is under the influence of an alcoholic beverage;

DAEP Placements Mandatory Offenses (Cont’d): Engages in conduct that contains the elements of an offense relating to an abusable volatile chemical; Public lewdness or indecent exposure; Student engages in conduct on or off of school property that contains the elements of the offense of retaliation; Title 5 Felony offenses committed off campus.

Expulsion Mandatory Expellable Offenses: Unlawfully carrying weapons or prohibited weapons; Aggravated Assault; Arson; Murder, Capital Murder, Criminal Attempt to Commit Murder or Capital Murder; Indecency with a child; Aggravated kidnapping;

Expulsion Mandatory Expellable Offenses (Cont’d): Aggravated kidnapping; Aggravated robbery; Manslaughter; Criminally negligent homicide; Continuous sexual abuse of a young child or children; Sells, gives delivers, possesses or uses a felony level amount of marihuana, a controlled substance, dangerous drug or alcoholic beverage.

Expulsion Discretionary Expellable Offenses: False alarm or report or terroristic threat; Sell, gives or delivers, possesses, uses or is under the influence of any amount of marihuana, a controlled substance, a dangerous drug or alcoholic beverage; Engages in conduct that contains the elements of an offense relating to an abusable volatile chemical; Assault against a school employee or volunteer;

Expulsion Discretionary Expellable Offenses (Cont’d): Deadly Conduct (when a person engages in conduct that places another in imminent danger of serious bodily injury or engages in conduct involving a home, building or vehicle and is reckless as to whether it is occupied); Aggravated Assault, Aggravated Robbery, Murder, Capital Murder, or Criminal Attempt to Commit Murder or Capital Murder against another student regardless of where the conduct occurred;

Expulsion Discretionary Expellable Offenses (Cont’d): Breach of computer security that involves accessing a computer, computer network, or computer system owned by or operated on behalf of the school and the student knowingly alters, damages, or deletes school property or information; While in the DAEP, the student engages in documented serious misbehaviors while on the program campus despite documented behavioral interventions.

Expulsion Serious misbehavior is defined as follows: Deliberate violent behavior that poses a direct threat to the health or safety of others; Extortion, meaning the gaining of money or other property by force or threat; Conduct that constitutes coercion; Public lewdness; Indecent exposure;

Expulsion Serious misbehavior is defined as follows (Cont’d): Criminal mischief; Personal hazing; Harassment of a student or district employee; Felony level criminal mischief .

Expulsion For a student who has committed a Title 5 offense, the Board may expel the student and order placement regardless of: The date on which the student’s conduct occurred; the location at which the conduct occurred; whether the conduct occurred while the student was enrolled in the district; or whether the student has successfully completed any court disposition requirements imposed in connection with the conduct.

Expulsion A student expelled and ordered to placement in an alternative setting in this instance is subject to that placement until: the student graduates from high school; the charges are dismissed or reduced to a misdemeanor offense; or the student completes the term of the placement or is assigned to another program.

The Special Needs Student When Behavior is a Manifestation: If the behavior is a manifestation, the student must be returned to the placement from which the student was removed. Three exceptions.

The Special Needs Student Special Circumstances: Carries or possesses a weapon to or at school, on school premises, or to or at a school function; Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function; Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function.

The Special Needs Student “Serious Bodily Injury” is Defined as: a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

The Special Needs Student The parent of a child and the school can agree to change a child’s educational placement after the child has violated a code of student conduct. This is not considered to be a removal under the discipline provisions.

The Special Needs Student Substantially Likely to Result in Injury to the Child or Others:: Under 34 CFR §300.530(b) and (d)(3), if the school believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others it may request a special education hearing.

The Special Needs Student 10 Day Rule: Under 34 CFR §300.530(b) and (d)(3), it is not a denial of FAPE to fail to serve a student for ten school days, cumulatively, through the school year. No services are required, so long as non-disabled students would be treated the same for similar misconduct.

The Special Needs Student 10 Day Rule (Cont’d): Under 34 CFR §300.530(b)(2), after a child with a disability has been removed from his or her current placement for 10 school days in the same school year, during and subsequent days of removal the school must provide services to enable the child to participate in the general curriculum and progress toward meeting IEP goals. The school must determine if this subsequent removal, combined with earlier removals, has created a “change of placement”.