This article first appeared in the Texas Criminal Defense Lawyers Association’s “Voice for the Defense” (Volume 54, No. 5)
By Sarah Beebe
Did you know students can be disciplined by their school districts for their juvenile offense even if it didn’t happen at or near school? It’s true. The Texas Code of Criminal Procedure Section 15.27 requires law enforcement agencies to notify the school district the student was attending at the time of arrest of the charge within 24 hours. This notice constitutes a reasonable belief that the student has engaged in an offense punishable under Chapter 37 of the Texas Education Code, the discipline chapter.[1] Once school districts have a reasonable belief that a student has engaged in a punishable offense, they can discipline the student even if the charge is pending, or the youth has been placed on deferred adjudication or in a diversion program.[2]
In these circumstances, school districts typically propose to place students in the district’s disciplinary alternative education program (DAEP), or for very serious offenses, specifically Title 5 felonies and aggravated robberies, in the county’s juvenile justice alternative education program (JJAEP).[3] Before the school can place a student in an alternative education program, the student is entitled to certain due process rights.[4] Those rights include notice of the reason for the proposed discipline, the nature of the discipline, and information about the right to appeal.[5] Notice should be provided to the student’s parent the day the action is taken, but if the school administrator is not able to reach the parent that day, the administrator can mail written notice to the parent’s last known address.[6]
Once a parent receives notice of the proposed discipline, they have the right to participate in a conference with the school administrator.[7] This is an opportunity to present evidence of mitigating factors to the administrator in an effort to persuade them to forego the proposed discipline. In Texas, a school administrator should consider any mitigating factors presented, but must consider the following six factors whether the discipline is mandatory or discretionary:
- self‑defense, if relevant;
- intent or lack thereof;
- a disability that impairs the student’s ability to understand the wrongfulness of their behavior;
- the student’s disciplinary history;
- status within the foster care system; and/or
- status as a homeless student.[8]
Parents are often unaware of their right to have a conference with the school administrator so they skip this step, but this is a valuable opportunity to change the administrator’s mind and halt the disciplinary process so it’s critical that parents do not unintentionally waive their right to a conference.
If the school administrator decides to move forward with the proposed discipline, a parent usually has the right to appeal the decision to the school district’s superintendent or their designee.[9] If the parent disagrees with the decision made at the next level of review, they may be able to appeal the decision to the school board, or request a trial de novo by a county district court.[10] There are exceptions to the appealability of disciplinary placements for certain serious offenses, though, including Title 5 felonies and aggravated robbery.[11] The student will typically be required to remain in the disciplinary setting during the pendency of any appeal. While I’ve cited state law throughout this article, the best source of information regarding the procedures for challenging school disciplinary placements is the specific school district’s Code of Student Conduct, which can almost always be found online.
Step-by-Step Guide to Handling a School Discipline Case
Juvenile defense attorneys are well suited to handle school discipline cases, especially once it’s been appealed to the superintendent or their designee. These appeal hearings are like informal trials where you have the opportunity to present evidence and examine witnesses. Start by obtaining the student’s school records. Ask for any records you believe would help you prove innocence, or present mitigating factors that would make it more difficult for the district to reasonably proceed with the disciplinary placement. Let’s use a case example:
Steven is a 15‑year‑old student in the 9th grade. He’s had repeated verbal altercations with a few other students at school. Steven has told school administrators about the difficulty he’s having with the other students, but they’ve told him to just ignore them. One day, a physical altercation breaks out between Steven and the other students in the hallway between classes. While in the midst of returning blows, Steven hits a teacher who was attempting to break up the fight. The School Resource Officer (SRO) witnesses the incident and arrests Steven for assault on a public servant. The school administrator notifies Steven’s mother that this code of conduct violation requires mandatory placement at the DAEP for the rest of the school year. Steven’s mother tells you, Steven’s juvenile defense attorney, that she met with the school administrator to discuss the incident and the proposed disciplinary placement, but it felt more like she was being told what was going to happen than being given the opportunity to discuss whether the disciplinary placement was appropriate given the circumstances.
You offer to assist Steven’s mother with an appeal of the disciplinary placement. You’ve got this! First, you request all relevant records you need from the school. In this case, you ask for:
- A copy of the disciplinary notice detailing what code of conduct violation Steven’s being disciplined for, what discipline is being proposed, and the length of the disciplinary placement;
- A copy of the video of the incident. Since the incident happened in the hallway, there will most likely be video footage. The school may try to refuse to provide you with a copy so you may want to subpoena it as part of your juvenile defense representation of Steven. You can also request a time for the school to allow you to come to campus, or a school administrative building, to review the video;
- A copy of the SRO’s statement or charge;
- A copy of any witness statements the school obtained from students or staff who observed the incident. These statements can and should be redacted to protect the identity of the students;
- A copy of any documentation of Steven’s complaints against the other students prior to the incident. Note that there may not be any formal documentation of Steven reporting the incident, especially if he only reported it verbally, but you’re laying the foundation for a claim that the school district failed to take action to protect Steven from bullying;
- A copy of Steven’s disciplinary history. If he hasn’t had many disciplinary incidents, you could make a claim that the punishment is excessive in light of this being his first serious code of conduct violation. Alternatively, if there’s a record of other incidents involving the other students, you can make the case that they were bullying him and the school failed to take proper action to address it;
- A copy of Steven’s attendance record. Perhaps you can make a claim that he’s been missing a lot of school due to the bullying.
You also look up the school district’s code of conduct, which is available on the school’s website. You look up the level violation (Level I, II, III, IV, or V based on the severity of the offense). You see from Steven’s disciplinary notice that he’s accused of a Level IV offense, which requires a mandatory removal to the DAEP. But you know the school administrator has to consider the factors listed in Chapter 37 of the Texas Education Code and the district’s Code of Conduct, along with any other mitigating factors.
It’s the day of the appeal hearing. You accompany Steven and his mother to the school district’s administrative building, or login to the online meeting. The school district has designated an assistant superintendent to hear Steven’s case. The school administrator is present, along with the SRO and the school district’s attorney. You give your opening statement and make a compelling argument for why this is a case of self‑defense. You present all documentation you received from the school supporting your argument. You allow Steven to make a statement (if appropriate). You question the school administrator about what was done in response to Steven’s complaints that the other students involved in the altercation were bullying him to point out the school’s failure to protect Steven from harassment in accordance with state law and school board policy. You ask the SRO if it appeared to him that Steven intended to hit the teacher, or if the teacher was just unlucky in putting themselves in between Steven and the other students at the wrong moment (if you feel confident about the answer based on the SRO’s and teacher’s reports).
Once you’ve presented your evidence, the school district will have a chance to make arguments to the hearing officer about why their decision to issue disciplinary consequences is appropriate. They will present their own evidence and may attempt to question Steven. You can object to certain information being shared and certain questions being asked, but keep in mind, the hearing officer is not a judge with formal legal training. They’re an educator. Try to keep the process relatively informal so as not to overwhelm them.
The hearing officer usually won’t decide that day. In fact, they have 10 school days to determine whether or not to overturn the decision. They must issue the decision in writing and explain their conclusion. Steven will have to remain at the DAEP while the decision is pending.
While it’s very possible to convince a school district hearing officer to overturn a disciplinary placement, it’s important to keep in mind that they are not independent from the school district. They work for the school district and often feel beholden to their colleagues’ decisions so choose to uphold even the most seemingly outrageous disciplinary placements.
Given the biased nature of these proceedings, you should keep your and your client’s expectations in check. In other words, you have to recognize that victory in these situations sometimes doesn’t involve a complete reversal of the disciplinary placement. Sometimes victory looks like a reduction in the number of days your client will have to attend the disciplinary placement. Sometimes victory is convincing the school district to allow your client to attend the DAEP instead of the county JJAEP. Sometimes victory involves obtaining transportation to the DAEP, even though it’s not required by state law, so that your client doesn’t dropout of school. Any of these outcomes is a win!
Special Disciplinary Protections for Students with Disabilities
The above applies to all students who attend public schools in Texas, including charter schools. Students with disabilities are entitled to enhanced disciplinary protections and have the opportunity for an additional proceeding when removal to DAEP or JJAEP is on the table. Following the initial decision of a school administrator to issue school disciplinary consequences and the conference to discuss the incident and proposed discipline, students with disabilities then have the right to a special disciplinary review process under both Section 504 and the Individuals with Disabilities Education Act (IDEA is the federal special education law).[12] This review process is called a Manifestation Determination Review (MDR) and it must be held within 10 days of the administrator’s recommendation for disciplinary placement.[13] During this meeting, the school and the parent or guardian must answer two questions:
- was the student’s behavior “caused by or had a direct and substantial relationship to the child’s disability;” OR
- was the student’s behavior “the direct result of the district’s failure to implement the IEP” (Individualized Education Program)?[14]
If the committee answers either of these questions in the affirmative, the school district cannot send the student to the proposed disciplinary placement.[15] There are three exceptions to this rule, however. When an incident involves drugs, weapons, or serious bodily injury, the school district may still place a student at the DAEP or JJAEP for up to 45 school days even if they agree that the student’s behavior was a manifestation of their disability, or that they failed to implement the student’s IEP.[16]
If a parent disagrees with the outcome of an MDR, they can appeal the decision by filing a request for an expedited due process hearing that goes before an administrative law judge appointed by the state.[17] The hearing must occur within 20 school days of the date it was requested.[18] The hearing officer, or judge, will then have ten days to issue a decision as to whether the placement will stand or be overturned.[19] The student will remain in the disciplinary placement while the hearing and decision are pending.[20]
Education Advocacy is a Best Practice for Reducing Recidivism
If you find the additional procedures required for students with disabilities overwhelming, do not worry. Disability Rights Texas is the federally designated protection and advocacy agency for people with disabilities in the state. We provide free civil legal and advocacy services to individuals with disabilities who have experienced discrimination and/ or rights violations, including in the area of education. We currently operate two education advocacy partnerships in Harris and Travis counties. By working exclusively with justice‑involved youth and their families, we have found that education advocacy is a best practice for preventing recidivism of justice‑involved youth. In fact, the Harris County Juvenile Probation Department found in 2021 that 94% of youth who received our direct services did not return to the justice system within a year of release from probation. If you are representing a youth who receives 504 or special education services at school, and you believe the school district is inappropriately removing them to a disciplinary program for behaviors they engaged in because of their disability, we can assist with the ensuring the school district honors the extra protections they’re entitled to under federal law.
By working closely with juvenile probation and public defender offices, we have found that when a special education attorney is provided information about the juvenile case, especially a psychological evaluation that may link the youth’s behavior to their disability, that information can be used at the MDR to advocate against DAEP or JJAEP placement. Once a special education attorney has obtained a favorable outcome at the MDR, the juvenile defense attorney can share that information with the court to make the case that the school has found the behavior to be a manifestation of the student’s disability, and/or that it was caused by the school’s failure to implement the student’s special education plan (IEP) if the offense was due to a school‑related incident. This kind of cooperation is one of the many reasons juvenile defense and special education attorneys make a great team!
For more information about Disability Rights Texas and the services we provide, visit www.drtx.org. We offer numerous resources on our website, including an Interactive Discipline Guide, which will take you through the disciplinary process for students with disabilities. You can also find more information about our education advocacy program for justice‑involved youth. We’re always interested in new partnerships so feel free to contact me if you’re interested in discussing how we can work together to defend the rights of our clients.
Sarah Beebe is a Supervising Attorney for the Juvenile Probation Education Advocacy Program at Disability Rights Texas and the Lead of the Harris County School Reentry Workgroup. She was appointed a voting member of the Harris County Racial and Ethnic Equities Committee (REE Committee) by the Harris County Criminal Justice Coordinating Council in December 2024. Sarah graduated from Tulane University in 2003 with a B.A. in History, the Tulane School of Social Work with a Masters in Social Work in 2004, and from William & Mary Law School with a J.D. in 2009. Sarah joined Disability Rights Texas as an Equal Justice Works Fellow in 2009 and became a Supervising Attorney in 2015. She and her husband have been married for 14 years and are the proud parents of two daughters and one son.
Footnotes:
[1] See Tex. Ed. Code §§37.006 and 37.0081.
[2] Id.
[3] Tex. Ed. Code §37.0081.
[4] Goss v. Lopez, 419 U.S. 565 (1975).
[5] Id.
[6] Tex. Ed. Code §37.0012(d) and (e).
[7] Goss v. Lopez, 419 U.S. 565 (1975).
[8] Tex. Ed. Code §37.001(a)(4).
[9] Tex. Ed. Code §37.006(i).
[10] Tex. Ed. Code §37.009(f).
[11] Tex. Ed. Code §37.0081(b).
[12] See 34 C.F.R. §104.35 and 34 C.F.R. §300.530(e) respectively.
[13] 34 C.F.R. §300.530(e).
[14] Id.
[15] 34 C.F.R. §300.530(f)(2).
[16] 34 C.F.R. §300.530(g).
[17] 34 C.F.R. §300.532.
[18] Id. at (c)(2).
[19] Id.
[20] 34 C.F.R. §300.533.