This article appeared in the Winter 2021-22 issue of The Classroom Teacher.
Since 1995, Chapter 37 of the Texas Education Code related to school safety has at least doubled in size. Student behavior is a growing problem, and TCTA attorneys say it has never been this difficult for members to get effective administrative help with disruptive students. Fortunately, TCTA members have access to attorneys with decades of experience, including some who helped write parts of Chapter 37.
Thirty-five years ago, the pendulum began to swing. It was time to replace the notion that if a student accused a teacher of misconduct, the student was lying. Districts began taking claims at face value, investigating and taking appropriate actions.
The pendulum has swung so far that some students now make a game of accusing or threatening to accuse a teacher of misconduct if the teacher disciplines or redirects the student.
For teachers, the problem is not only that students (and sometimes their parents) think the accusations are appropriate, but also that districts find it easier to put the teacher on leave (give the student a win) or threaten to terminate or nonrenew the teacher’s contract than to take action against students who use the process to hurt, threaten or retaliate against teachers.
School boards should make it clear that such conduct by students is unacceptable and include in student codes of conduct substantial consequences for students who do so, while protecting students’ right to address teacher misconduct. Teachers can request changes to student codes of conduct.
Chapter 37 imposes clear duties on principals and campus behavior coordinators. If a teacher sends a student to the office for support with discipline, the administrator must take steps “that can reasonably be expected to improve the student’s behavior before returning the student to the classroom.”
“If the student’s behavior does not improve, the campus behavior coordinator shall employ alternative discipline management techniques….”
If a teacher removes a student from class for repeated, or serious and aggressive, disruption, the administrator should:
Texas law makes it a felony to harm or threaten to harm a teacher by an unlawful act because the teacher was doing their job as a public servant. Regardless of whether the district takes action against the student, the teacher can report the threat to the municipal police.
A district does not enforce criminal laws, but it can enforce its student code of conduct. The SCC may include provisions that give the district disciplinary authority over a student for threats against a school employee regardless of where or when they occur if the threats cause substantial disruption to the educational environment. The SCC may state consequences for students who use the internet or electronic communications to threaten or harass employees, including off school property, if the conduct causes a substantial disruption to the educational environment.
A provision in some SCCs provides consequences if a student sends, posts, delivers or possesses messages that are abusive, obscene, threatening or damaging to another’s reputation. This provision may apply to messages on or off school property.
Of note, the U.S. Supreme Court recently held that a district could not punish a student who, upset about failing to make the varsity cheer squad, posted two images on Snapchat that expressed frustration with the school and the school’s cheerleading squad. One post contained vulgar language, including the “f bomb” and a related gesture.
If a teacher removes a student from class for disruptive conduct and asks that the student not be returned to class, a principal must convene the campus placement review committee if the principal wants to return the student to class over the teacher’s objection. The committee, not the principal, can return the student to the teacher’s class over the teacher’s objection, but only if the committee determines that placement in the teacher’s class is the best and only alternative for the student.
If a teacher removes a student who assaulted the teacher and caused actual harm, a principal cannot return the student to the teacher’s class over the teacher’s objection. (Special education placements may limit the application of this law.)
Despite protestations to the contrary from some administrators, special education students can be removed from class. Granted, a district cannot change a special education student’s placement without convening an admission, review and dismissal committee meeting, but many changes in a student’s educational location do not constitute a “change of placement.”
Removal from class or suspension for 10 or fewer consecutive days does not constitute a change of placement. Subsequent removals and removals that aggregate to more than 10 days may constitute a change of placement.
If an individualized education plan places a student in a regular education classroom, the student could be removed from one teacher’s class and placed in the classroom of another teaching the same subject.
Whether removal to in-school suspension constitutes a prohibited change of placement is subject to substantial debate, especially if the removal lasts for more than 10 consecutive days or an aggregate of more than 10 days.
Mindful of the debate, the U.S. Department of Education says of ISS:
It has been the Department’s long-term policy that an in-school suspension would not be considered a part of the days of suspension addressed in § 300.530 as long as the child is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified on the child’s IEP, and continue to participate with nondisabled children to the extent they would have in their current placement. This continues to be our policy. Because the determination as to whether an in-school suspension or bus suspension counts as a day of suspension under § 300.530 depends on the unique circumstances of each case… (Source: https://tinyurl.com/2p94dzcs)
A change of placement for misconduct is permitted if a manifestation determination review leads to a conclusion that a student’s behavior is not a direct product of the student’s disability.
Documentation, the bane of many a teacher’s existence, plays a crucial role in a manifestation determination review. A finding that the district (teacher) failed to comply with an IEP means that the student’s conduct is, effectively, a product of a disability. Clear documentation of consistent compliance with an IEP allows the committee to determine whether the student’s disability caused the conduct and the student’s placement can change.
This article is for information only and is not a substitute for legal advice. TCTA members with questions about student discipline or other job-related concerns should call the Legal Department at 888-879-8282 to speak with a staff attorney.