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FOD(TSBVI) Student Discipline: Expulsion

GENERAL

The expulsion provisions of this policy are subject to the federal and state laws and rules governing change of educational placement for students with disabilities, including all TSBVI students, contained in TSBVI Policy FOF – STUDENT DISCIPLINE: STUDENTS WITH DISABILITIES.

When TSBVI determines that a student has committed an expellable act, the Principal shall inform the Superintendent and the Director of the Center for School Resources. The Principal or designee will notify the student’s local district of residence (local education agency – LEA) that the student has been or will be expelled, and that the LEA will maintain responsibility for the provision of a Free Appropriate Public Education to the student.

TSBVI will offer to participate in the district’s ARD Committee to assist that district in determining the student’s placement and Individualized Education Program (IEP).

CFR 500.530—.546; Education Code Chapter 89, 37,007; TSBVI Policy FOF

STUDENTS YOUNGER THAN TEN

A student younger than ten years of age shall not be expelled but shall be placed in a disciplinary alternative education program (DAEP). Education Code 37.007(e)(2), (h)

MANDATORY EXPULSION

School Related

Subject to the provisions of TSBVI Board Policy FOF, a student shall be expelled if the student, on school property or while attending a school-sponsored or school-related activity on or off of school property:

  1. Engages in conduct that contains the elements of “unlawfully carrying weapons” under Penal Code 46.02 or uses, possesses, or exhibits a firearm, an illegal knife, a club, or a prohibited weapon, as those terms are defined in the Penal Code 46.05, or any knife or gun prohibited by local policy [see FNCG];
  2. Engages in conduct that contains the elements of the offense of aggravated assault, sexual assault, aggravated sexual assault, arson, murder, capital murder, criminal attempt to commit murder or capital murder, indecency with a child, aggravated kidnapping, aggravated robbery, manslaughter, criminally negligent homicide, or continuous sexual abuse of a young child or children as those offenses are defined in the Penal Code; or
  3. Commits a drug- or alcohol-related offense described at Education Code 37.006(a)(2)(C) or (D), if that conduct is punishable as a felony.

Education Code 37.007(a)

Exception

A student may not be expelled solely on the basis of the student’s use, exhibition, or possession of a firearm that occurs:

  1. At an approved target range facility that is not located on the School’s campus; and
  2. While participating in or preparing for a school-sponsored shooting sports competition or a shooting sports educational activity that is sponsored or supported by the Texas Parks and Wildlife Department or a shooting sports sanctioning organization working with the Department.

This section does not authorize a student to bring a firearm on school property.

Education Code 37.007(k)(l)

Retaliation

Subject to the provisions of TSBVI Board Policy FOF, TSBVI shall expel a student who engages in conduct that contains the elements of any offense listed above against any TSBVI employee or volunteer in retaliation for or as a result of the person’s employment or association with the School, without regard to whether the conduct occurs on or off school property or while attending a school-sponsored or school-related activity on or off of school property. Education Code 37.007(d)

Federal Firearms Offense

In accordance with the Gun-Free Schools Act and subject to the provisions of TSBVI Board Policy FOF, TSBVI shall expel from the student’s regular program, for a period of one year, any student who is determined to have brought a firearm, as defined by federal law, to TSBVI. The Superintendent or Principal may modify the term of expulsion for a student or assess another comparable penalty that results in the student’s exclusion from the regular school program, on a case-by-case basis. Any student who is younger than ten years of age and who is expelled for this firearms violation shall be provided educational services in a DAEP in the student’s local district of residence. 20 U.S.C. 8921; Education Code 37.007(e) [see also GKA]

Exception

This provision shall not apply to a firearm that is lawfully stored unloaded inside a locked vehicle (and not in plain view) on school property, or if it is for activities approved an authorized by TSBVI and the School adopts appropriate safeguards to ensure student safety. [See also GKA]

Provisions of Educational Services

TSBVI shall provide educational services to an expelled student in a DAEP if the student is younger than ten years of age on the date of expulsion. TSBVI may provide educational services to an expelled student who is ten years of age or older in a DAEP.

20 U.S.C. 7961; Education Code 37.007(e)

Definitions

For the purposes of this provision:

School

“School” means any setting that is under the control and supervision of TSBVI for the purpose of student activities approved and authorized by the School. 20 U.S.C. 7961(f)

Firearm

For the purposes of this provision, “firearm” means:

  1. Any weapon (including a starter gun), which will or is designed to or which may readily be converted to expel a projectile by the action of an explosive;
  2. The frame or receiver of any such weapon;
  3. Any firearm muffler or firearm silencer; or
  4. Any destructive device. “Destructive device” means any explosive, incendiary, or poison gas bomb, grenade, rocket having a propellant charge of more than four ounces, missile having an explosive or incendiary charge of more than one-quarter ounce, mine, or device similar to any of the preceding described devices. It also means any type of weapon (other than a shotgun shell or a shotgun that is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and any combination of parts either designed or intended for use in converting any device into a destructive device as described in this item, and from which a destructive device may be readily assembled.

18 U.S.C. 921, 20 U.S.C. 7961(b)(3)

DISCRETIONARY EXPULSION

Threats

Subject to the provisions of TSBVI Board Policy FOF, a student may be expelled if the student engages in conduct involving a public school that contains the elements of the offense of false alarm or report under Penal Code 42.06, or terroristic threat under Penal Code 22.07.

School-Related Conduct

Subject to the provisions of TSBVI Board Policy FOF, a student may be expelled if the student, while on or within 300 feet of school property, as measured from any point on the school’s real property boundary line, or while attending a school-sponsored or school-related activity on or off of school property:

Alcohol or Drugs

1. Sells, gives, or delivers to another person, or possesses, uses, or is under the influence of any amount of:

  1. Marijuana or a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. section 801 et seq.; or
  2. A dangerous drug, as defined by Chapter 483, Health and Safety Code; or
  3. An alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code.

Volatile Chemicals

2.    Engages in conduct that contains the elements of an offense relating to an abusable volatile chemical under Health and Safety Code 485.031-485.034.

Assault on an Employee or Volunteer

3.    Engages in conduct that contains the elements of an offense under Penal Code 22.01(a)(1) against a School employee, or a volunteer as defined by Education Code 22.053. [See FOC (EXHIBIT)]

Deadly Conduct

4.    Engages in conduct that contains the elements of the offense of deadly conduct under Penal Code 22.05.

Education Code 37.007(b)(1)-(2)

Conduct Within 300 Feet of School

Subject to the mandatory expulsion requirement for retaliation and the provisions of TSBVI Board Policy FOF, a student may be expelled if the student, while within 300 feet of school property, as measured from any point on the school’s real property boundary line, engages in the following conduct:

  1. Any conduct for which expulsion would have been mandatory under Education Code 37.007(a) [see Mandatory Expulsion – School Related, above]; or
  2. Possession of a firearm, as defined by 18 U.S.C. sec. 921 [see Federal Firearm Provision, above].

Education Code 37.007(b)(3)

Retaliation Against School Employee or Volunteer

Subject to the provisions of TSBVI Board Policy FOF, a student may be expelled if the student engages in an assault, under Penal Code 22.01(a)(1), on an employee or volunteer in retaliation for or as a result of the person’s employment or association with TSBVI, without regard to whether the conduct occurs on or off school property or while attending a school-sponsored or school-related activity on or off school property. Education Code 37.007(d)

Conduct Against Another Student

Subject to the provisions of TSBVI Board Policy FOF, a student may be expelled if the student engages in conduct against another student that contains the elements of the offenses of aggravated assault, sexual assault, aggravated sexual assault, arson, murder, capital murder, criminal attempt to commit capital murder, or aggravated robbery, without regard to whether the conduct occurs on or off of school property or while attending a school-sponsored or school-related activity on or off of school property. Education Code 37.007(b)(4)

Bullying

A student may be removed from class and expelled if the student:

  1. Engages in bullying that encourages a student to commit or attempt to commit suicide;
  2. Incites violence against a student through group bullying; or
  3. Releases or threatens to release intimate visual material of a minor or student who is 18 years of age or older without the student’s consent.

Nothing in this provision exempts a school from reporting a finding of intimate visual material of a minor.

Definitions

Bullying

“Bullying” has the meaning assigned by Education Code 37.8032. [See FFI]

Intimate Visual Material

Intimate visual material has the meaning assigned by Civil Practice and Remedies Code 98B.001. “Intimate visual material” means visual material that depicts a person:

  1. with the person’s intimate parts exposed; or
  2. engaged in sexual conduct.

Education Code 37.0052

Criminal Mischief

Subject to the provisions of TSBVI Board Policy FOF, TSBVI may use its discretion to expel a student who has engaged in conduct that contains the elements of criminal mischief, as defined in the Penal Code, if the conduct is punishable as a felony. Regardless of whether the student is expelled, TSBVI shall refer the student to the authorized officer of the juvenile court. Education Code 37.007(f)

Breach of Computer Security

A student may be expelled if the student engages in conduct that contains the elements of the offense of breach of computer security under Penal Code 33.02 if:

  1. The conduct involves accessing a computer, computer network, or computer system owned by or operated on behalf of TSBVI; and
  2. The student knowingly alters, damages, or deletes School property or information; or commits a breach of any other computer, computer network, or computer system.

Education Code 37.007(b)(5)

Serious Misbehavior in DAEP

Subject to the provisions of TSBVI Board Policy FOF, a student who continues to engage in documented serious misbehavior that violates TSBVI’s Student Code of Conduct while placed in a DAEP may be removed from class and expelled.

“Serious misbehavior” means:

  1. Deliberate violent behavior that poses a direct threat to the health or safety of others;
  2. Extortion, meaning the gaining of money or other property by force or threat;
  3. Conduct that constitutes the offense of:
    1. Public lewdness under Penal Code 21.07;
    2. Indecent exposure under Penal Code 21.08;
    3. Criminal mischief under Penal Code 28.03;
    4. Personal hazing under Penal Code 37.152; or
    5. Harassment, under Penal Code 42.07(a)(1), of a student or TSBVI employee.

If the student is expelled, the Superintendent or Principal shall refer the student to the authorized officer of the juvenile court for appropriate proceedings under Family Code Title 3 (Juvenile Justice Code).

Education Code 37.007(c), 37.010(b)

Property or Activities at Another District

Subject to the provisions of TSBVI Board Policy FOF, TSBVI may expel a student who attends school at TSBVI if:

  1. The student engages in conduct for which expulsion would have been mandatory if the conduct had occurred on TSBVI property or while attending a TSBVI-sponsored or TSBVI-related activity; and
  2. The student engages in that conduct on the property of another school district or while attending a TSBVI-sponsored or TSBVI-related activity of another district in this state.

Education Code 37.007(i)

EXPULSION PROCEEDINGS

Due Process

Subject to the provisions of TSBVI Board Policy FOF, before a student may be expelled, the Superintendent or Principal shall provide the student a hearing at which the student is afforded appropriate due process as required by the federal constitution and which the student’s parent or guardians is invited, in writing, to attend. Education Code 37.009(f)

The minimum procedural requirements necessary to satisfy due process depend upon the circumstances and the interests of the parties involved. Federal due process requires notice and some opportunity for hearing.

Notice

The notice should contain a statement of the specific charges and grounds that, if proven, would justify expulsion. In some cases, the student should be given the names of the witnesses against him or her and an oral or written report on the facts to which each witness testifies.

Hearing

The rights of the student may properly be determined upon the hearsay evidence of school administrators who investigate disciplinary infractions.

[See also Brewer v. Austin Indep. Sch. Dist., 779 F.2d 260 (5th Cir. 1985); Keough v. Tate County Bd. of Educ., 748 F.2d 1077 (5th CIr. 1984); McClain v. Lafayette County School Boardof Educ., 673 F.2d 106 (5th Cir. 1982); Tasby v. Estes, 643 F.2d 1103 (1981); Boykins v. Fairfield Bd. of Educ., 492 F.2d 697 (5th Cir. 1974), cert. den. 420 US 962 (1975); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961) cert. denied, 368 US 930 (1961)]

Representative

At the hearing, the student is entitled to be represented by the student’s parent, guardian, or another adult who can provide guidance to the student and who is not an employee of TSBVI. If TSBVI makes a good-faith effort to inform the student and the student’s parent or guardian of the time and place of the hearing, TSBVI may hold the hearing regardless of whether the student, the student’s parent or guardian, or another adult representing the student attends.

Mitigating Factors

Before ordering the expulsion of a student, the Superintendent or the Principal must consider whether the student acted in self-defense, the intent or lack of intent at the time the student engaged in the conduct, the student’s disciplinary history, and whether the student has a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct, regardless of whether the decision concerns a mandatory or discretionary action. [See Student Code of Conduct, item 4 at FOC for mitigating factors.]

Appeal

If the decision to expel a student is made by the Board’s designee, the decision may be appealed to the Board. The decision of the Board may be appealed by trial de novo in Travis County.

Education Code 37.009 (f)

TERM OF EXPULSION

If the period of expulsion is inconsistent with the guidelines on length of expulsion in the Student Code of Conduct, the order must give notice of the inconsistency.

Expulsion Beyond One Year

The period of expulsion may not exceed one year unless TSBVI determines that:

  1. The student is a threat to the safety of other students or to TSBVI employees; or
  2. Extended placement is in the best interest of the student.

Education Code 37.009(h)

NOTICE OF EXPULSION ORDER

To Parent or Guardian

The Superintendent or Principal shall inform the student’s parent or guardian, and deliver by certified mail a copy of the order expelling the student to the student and the student’s parent or guardian. After such notification, the parent or guardian shall provide adequate supervision for the student during the period of expulsion. Education Code 37.009(g)-(h)

To Court

Not later than the second business day after the date an expulsion hearing is held, the Superintendent or Principal shall deliver a copy of the expulsion order and any information required under Family Code 52.04 to the authorized officer of the juvenile court in the county in which the student permanently resides.

Family Code 52.04 requires the following information from a referring entity that is not a law enforcement agency or has not taken the child into custody:

  1. All information in TSBVI’s possession pertaining to the identity of the child and the child’s address; the name and address of the child’s parent, guardian, or custodian; the names and addresses of any witnesses; and the child’s present whereabouts; and
  2. A complete statement of the circumstances of the alleged delinquent conduct or conduct indicating a need for supervision.

Education Code 37.010(a); Family Code 52.04(a), .041(a)-(b)

To Juvenile Board

If the student permanently resides in a county that operates a juvenile justice alternative education program (JJAEP), no student shall be expelled without written notification to the resident local school district who will notify the juvenile board’s designated representative. The TSBVI Board designates the Superintendent to make the required notification to the resident school district’s superintendent who will immediately notify the juvenile board’s designated representative in writing. The notification shall be made not later than two business days following the determination of the Superintendent or Principal that the student is to be expelled. Failure to timely notify the designated representatives shall result in the student’s duty to continue attending the local school district’s educational program, which shall be provided to that student until such time as the notification to the designated representatives is properly made. Family Code 52.041

To Staff

In addition to providing any notice required under Code of Criminal Procedure 15.27 [see GRA], TSBVI shall inform each educator who has responsibility for, or is under the direction and supervision of an educator who has responsibility for, the instruction of a student who has engaged in expellable conduct.

Each educator shall keep the information confidential from any person not entitled to the information, except that the educator may share the information with the student’s parent or guardian as provided by state or federal law.  An educator’s certificate may be suspended or revoked for intentional failure to keep such information confidential.

Education Code 37.007(g)

Completion of Proceeding Upon Withdrawal

If a student withdraws from TSBVI before an order for expulsion is entered, the Superintendent or Principal, as appropriate, may complete the proceedings and enter an order. If the student subsequently is referred back to TSBVI by the local district [and is accepted by TSBVI during the same or subsequent school year,] TSBVI may enforce the order at that time except for any period of the expulsion that has been served by the student in the student’s local district or another district that honored the order. If the Superintendent or Principal fails to enter an order after the student withdraws, the district in which the student enrolls may complete the proceedings and enter an order. Education Code 37.009(i)

Additional Proceedings

If, during the term of expulsion, a student engages in additional conduct for which placement in a DAEP or expulsion is required or permitted, additional proceedings may be conducted and the Superintendent or Principal, as appropriate, may enter an additional order. Education Code 37.009(j)

Appeals

A decision by the Principal to expel a student may be appealed to the Superintendent. The results and findings of a hearing before the Principal or Superintendent should be presented in a written report open to the student’s inspection. The decision of the Superintendent or Principal may be appealed to the Board. The parent or adult student shall inform the Superintendent of their decision to appeal the decision to the Board. The Superintendent will explain the procedure for the appeal and will inform the Board. The procedures for such an appeal are in Policy FNG. Education Code 37.009(f); Dixon v. Alabama State Board of Educ., 294 F.3d 150 (5th Cir. 1961), cert. denied, 368 US 930 (1961)

RESTRICTIONS ON COURT ORDERS

A court may not order an expelled student to attend TSBVI’s DAEP as a condition of probation.

LOCAL ISD’s RESPONSIBILITY FOR EXPELLED STUDENT

The student’s resident school district is responsible for providing an immediate educational program to a student who engages in behavior for which expulsion is permitted but not required under Education Code 37.007. After the Superintendent or Principal determines that the student has committed an expellable offense and if the Superintendent or Principal has determined that the student will be expelled to the student’s local district of residence, TSBVI will inform that local district of their obligation to convene an ARD Committee to ensure that the student continues to receive a free, appropriate public education arranged for by that local district.

Education Code 37.007

Adopted:         11/7/80

Amended:       5/8/81, 1/14/83, 11/11/83, 9/21/84, 7/17/87, 1/14/88, 3/27/92, 1/29/93, 3/26/93, 9/27/96, 11/19/04, 10/3/14, 11/15/18, 5/28/20

Reviewed: