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GENERAL

The provisions of this policy are subject to all provisions related to the change of placement for students with disabilities, including all TSBVI students, contained in TSBVI Policy FOF, STUDENT DISCIPLINE: STUDENTS WITH DISABILITIES.

REMOVAL UNDER STUDENT CODE OF CONDUCT

The Student Code of Conduct must specify conditions that authorize or require the Superintendent or Principal or other appropriate administrator to transfer a student to a disciplinary alternative education program (DAEP).

Education Code 37.001(a)(2)

Mandatory Placement in DAEP

Subject to the provisions related to change of placement contained in TSBVI Policy FOF, a student shall be removed from class and placed in a DAEP if the student engages in conduct described in Education Code 37.006 that requires placement.  Education Code 37.006

School-Related Misconduct

Subject to the provisions of TSBVI Board Policy FOF, a student shall be removed from class and placed in a DAEP 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.

A student shall also be removed from class and placed in a DAEP if the student commits the following 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 school property:

  1. Engages in conduct punishable as a felony;
  2. Engages in conduct that contains the elements of assault, under Penal Code 22.01(a)(1).
  3. Sells, gives, or delivers to another person or possesses, uses, or is under the influence of:
  4. Marijuana or a controlled substance, as defined by the Texas Controlled Substances Act, Health and Safety Code Chapter 481, or by 21 U.S.C. 801, et seq.;
  5. A dangerous drug, as defined by the Texas Dangerous Drug Act, Health and Safety Code Chapter 483.
  6. Sells, gives, or delivers to another person an alcoholic beverage, as defined by Alcoholic Beverage Code 1.04, or commits a serious act or offense while under the influence of alcohol, or possesses, uses, or is under the influence of an alcoholic beverage.
  7. Engages in conduct that contains the elements of an offense relating to an abusable volatile chemical under Health and Safety Code 485.031 through 485.034.
  8. Engages in conduct that contains the elements of the offense of public lewdness under Penal Code 21.07.
  9. Engages in conduct that contains the elements of the offense of indecent exposure under Penal Code 21.08.

Education Code 37.006(a)

Exception

Subject to the provisions of TSBVI Board Policy FOF, removal to a DAEP for school-related misconduct is not required if the student is expelled for the same conduct.  Education Code 37.006(m)

Retaliation

Subject to the provisions of TSBVI Board Policy FOF, except where a student engages in retaliatory acts against a School employee for which expulsion is mandatory [see FOD], a student shall be removed from class and placed in a DAEP if the student engages in conduct on or off school property containing the elements of retaliation, as defined in Penal Code 36.06, against any school employee. Education Code 37.006(b)

Conduct Unrelated to School

In addition to the circumstances listed above, a student shall be removed from class and placed in a DAEP based on conduct occurring off campus and while the student is not in attendance at a school-sponsored or school-related activity if:

  1. The student receives deferred prosecution under Family Code 53.03, for conduct defined as a felony offense in Title 5, Penal Code or the felony offense of aggravated robbery under Penal Code 29.03;
  2. A court or jury finds that the student has engaged in delinquent conduct under Family Code 54.03 for conduct defined as a felony offense in Title 5, Penal Code or the felony offense of aggravated robbery under Penal Code 29.03; or
  3. The Superintendent or Principal has a reasonable belief that the student has engaged in conduct defined as a felony offense in Title 5, Penal Code or the felony offense of aggravated robbery under Penal Code 29.03.

[See FOC(EXHIBIT) for list of Title 5 offenses]

Education Code 37.006(c)

Reasonable Belief

In determining whether there is a reasonable belief that a student has engaged in conduct defined as a felony offense, the Superintendent or Principal may consider all available information, including the information furnished under Code of Criminal Procedure Article 15.27.  Education Code 37.006(e) [See GRAA]

Title 5 Felonies

Subject to the provisions of TSBVI Board Policy FOF, notwithstanding any other provision of Education Code Chapter 37, Subchapter A, the Superintendent or Principal, after an opportunity for hearing, may elect to place a student in a DAEP if:

  1. The student has received deferred prosecution (under Family Code 53.03) for conduct defined as a felony offense under Title 5, Penal Code [see FOC (EXHIBIT)]; or the student has been found by a court or jury to have engaged in delinquent conduct (under Family Code 54.03) for conduct defined as a felony offense under Title 5, Penal Code; and
  2. The Superintendent or Principal determines that the student's presence in the regular classroom threatens the safety of other students or teachers, will be detrimental to the educational process, or is not in the best interests of the School’s students.

Subject to the provisions of TSBVI Board Policy FOF, the Superintendent or Principal may order

placement regardless of:

  1. The date or location of the conduct;
  2. Whether the conduct occurred while the student was enrolled at TSBVI; or
  3. Whether the student has successfully completed any court disposition requirements imposed in connection with the conduct.

PERMISSIVE REMOVAL

Non-Title 5 Felony

Subject to the provisions of TSBVI Board Policy FOF, a student may be removed from class and placed in a DAEP based on conduct occurring off campus and while the student is not in attendance at a school-sponsored or school-related activity if:

  1. The Superintendent or Principal has a reasonable belief (as determined above) that the student has engaged in conduct defined as a felony offense other than aggravated robbery under Penal Code 29.03, or those listed in Title 5, Penal Code [see FOC(EXHIBIT)]; and
  2. The continued presence of the student in the regular classroom threatens the safety of other students or teachers or will be detrimental to the educational process.

Education Code 37.006(d)- (e)

Bullying

A student may be removed from class and placed in a DAEP 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 37.0832. [See FFAI]

“Intimate Visual Material”

“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

Length of Placement

Subject to the provisions of TSBVI Board Policy FOF, notwithstanding Education Code 37.009(c) (placements beyond one year) or any other provision of Education Code Chapter 37, Subchapter A, the Superintendent or Principal may order placement at the local school district DAEP for any period considered necessary in connection with the above determinations.  The student is entitled to the periodic review prescribed by Education Code 37.009(e).

Final Decision

The decision of the Superintendent or Principal is final and may not be appealed.

Education Code 37.0081

Sexual Assault of Another Student

A student shall be removed from class and placed in a DAEP or juvenile justice alternative education program (JJAEP) if:

  1. The student was convicted of, received adjudication for, or was placed on probation for sexual assault of another student while the students were assigned to the same campus, regardless of whether the assault occurred on or off school property;
  2. The parent of the victim of the assault has requested that the student be transferred to a campus serving the grade level in which the student is enrolled.

Education Code 25.0341, 37.0051(a) [See FDD School Safety Transfers]

A limitation imposed by Education Code Chapter 37 on the length of placement in a DAEP or a JJAEP

does not apply to a placement under this provision.  Education Code 37.0051(b)

One Year After Misconduct

Subject to the provisions of TSBVI Board Policy FOF, the Superintendent or Principal may, but is not required to, remove a student to a DAEP for off-campus conduct, for which removal would otherwise be required, if the Superintendent or Principal or other appropriate administrator did not have knowledge of the conduct before the first anniversary of the date the conduct occurred.  Education Code 37.006(n)

Certain Organization and Gang Membership and Solicitation

A Board or an educator shall recommend placing in DAEP any student who commits the misdemeanor offenses described in Education Code 37.121(a) and (c), regarding membership in or solicitation to join a public school fraternity, sorority, secret society, or gang [see FNCC].  Education Code 37.006(n)

Placement of Younger Students

Subject to the provisions of TSBVI Board Policy FOF, a student who is younger than ten shall be removed from class and placed in a DAEP if the student engages in conduct for which expulsion would be required by Education Code 37.007.

Education Code 37.006(f),.007(e)  [See FOD]

Students Younger Than Six

Subject to the provisions of TSBVI Board Policy FOF, notwithstanding any other provision of the Education Code, a student who is younger than six years of age may not be removed from class and placed in a DAEP, except that a student younger than six years of age who has been expelled pursuant to the Gun Free Schools Act [see FOD] may be provided educational services in a DAEP.   Education Code 37.006(l),.007(e)(2)

Conference

Not later than the third class day after a student is removed by a teacher or by the Principal or other appropriate administrator, the Principal or other appropriate administrator shall schedule a conference among the Principal or other appropriate administrator, the student's parent or guardian, the teacher removing the student from class, if any, and the student.  At the conference, the student is entitled to written or oral notice of the reasons for the removal, an explanation of the basis for the removal, and an opportunity to respond to the reasons for the removal.  The student may not be returned to the regular class pending the conference.

Following the conference, and whether or not each requested person is in attendance after valid attempts to require the person's attendance, the principal shall order the placement of the student for a period consistent with the Student Code of Conduct.

Mitigating Factors

Before ordering removal to a DAEP, the Principal (as the Campus Behavior Coordinator) 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 Principal’s decision concerns a mandatory or discretionary action.

Order

Following the conference, and whether or not each requested person is in attendance after valid attempts to require the person’s attendance, the Principal, after considering any mitigating factors under Education Code 37.001(a)(4) [see FO], shall order the placement of the student for a period consistent with the Student Code of Conduct.

Appeal

If TSBVI policy allows a student to appeal to the Board or the Board’s designee, but the decision of the Board or the Board’s designee is final and may not be appealed.

Education Code 37.009(a) [See Student Code of Conduct]

TERM OF REMOVAL

The Superintendent or Principal shall set a term for a student's placement in a DAEP.  If the period of placement is inconsistent with the guidelines in the Student Code of Conduct, the order must give notice of the inconsistency.  The period of the placement may not exceed one year unless, after a review, the school determines that the student is a threat to the safety of other students or to school employees; or extended placement is in the best interest of the student.  Education Code 37.009(a),(d)

Beyond Grading Period or 60 Days

If placement in a DAEP is to extend beyond 60 days or the end of the next grading period, whichever is earlier, the student's parent or guardian is entitled to notice of and an opportunity to participate in a proceeding before the Superintendent or Principal. 

No Appeal

Any decision of the Board’s designee, [Superintendent or Principal] concerning placement beyond 60 days or the end of the next grading period is final and cannot be appealed.

Education Code 37.009(b)

Beyond End of School Year

Before a student may be placed in a DAEP for a period that extends beyond the end of the school year, the Superintendent or Principal must determine that:

  1. The student's presence in the regular classroom program or at the student's regular campus presents a danger of physical harm to the student or another individual; or
  2. The student has engaged in serious or persistent misbehavior that violates the Student Code of Conduct.

Education Code 37.009(c)

Order of Removal

The Superintendent or Principal shall deliver to the student and the student's parent or guardian a copy of the order placing the student in a DAEP.  Education Code 37.009(g)

Not later than the second business day after the date of the removal conference, the Superintendent or Principal shall deliver a copy of the order placing the student in a DAEP and any information required under Family Code 52.04 to the authorized officer of the juvenile court in the county in which the juvenile resides.  Education Code 37.010(a)

Activities

The terms of a placement under Education Code 37.006 must prohibit the student from attending or participating in school-sponsored or school-related activities.  Education Code 37.006(g)

In addition to any notice required under Code of Criminal Procedure 15.27 [see GRAA], a principal or designee 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 conduct for which DAEP placement must or may be ordered.

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 37.006(o)

Completion of Proceedings Upon Withdrawal

If a student withdraws form TSBVI before an order for placement in a DAEP is entered, the principal or board, as appropriate, may complete the proceedings and enter an order.  If the student re-enrolls in TSBVI the same or subsequent school year, TSBVI may enforce the order at that time except for any period of the placement that has been served by the student in another school that honored the order.  If the principal or board fails to enter an order after the student withdraws, the next district in which the student enrolls may complete the proceedings and enter an order.  Education Code 37.009(i)

ENROLLMENT IN ANOTHER DISTRICT

If a student placed in a DAEP enrolls in another school before the expiration of the placement, the Board shall provide to the district in which the student enrolls (or TSBVI) a copy of the placement order at the same time it provides other records.  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.  The district in which the student enrolls may continue the placement or allow the student to attend regular classes.  [See FO]

The district in which the student enrolls (or TSBVI) may take any of these actions if:

  1. The student was placed in a DAEP by an open-enrollment charter school and the charter school provides the district (or TSBVI) a copy of the placement order; or
  2. The student was placed in a DAEP by a district in another state and:
  3. The out-of-state district provides a copy of the placement order; and
  4. The grounds for placement are the same as grounds for placement in the enrolling district.

Education Code 37.008(j)

Additional Proceedings

If, during the term of placement, 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 principal or superintendent, may enter an additional order.  Education Code 37.009(j)

REPORTING

TSBVI shall include the number of students removed to a DAEP in its annual performance report.

Education Code 37.053(e)(5) [See BR]

Adopted:         8/21/84

Amended:       7/12/85, 7/17/87, 1/29/93, 9/27/96, 1/24/02, 11/19/04, 11/15/18

Reviewed: