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Married students shall have the same rights and responsibilities regarding education in the School as unmarried students have. This includes the right to participate in any extra-curricular activities on the same basis, and subject to the same requirements, as an unmarried student.

Carrollton-Farmers Branch ISD v. Knight, 418 S.W. 2d 335 (Tex. Civ. App. 1967); Bell v. Lone Oak ISD, 507 S.W.2d 636 (1974)

The School shall not apply any rule concerning a student's actual or potential marital status that treats students differently on the basis of sex.

 20 U.S.C. 1681; 34 CFR 106.40 

Except as expressly provided by law, a student who has been married in accordance with Texas law has the capacity and power of an adult, regardless of age.

 Family Code 1.104

Adopted: 4/7/78

Amended: 1/11/80, 11/17/95, 1/26/07

Reviewed: 5/25/04

TITLE IX

The School shall not discriminate against any student or exclude any student from its education or activity, including any class or extracurricular activity, on the basis of the student's pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the School's program or activity.

The School may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation in the normal education program or activity so long as such certification is required of all students for other physical or emotional conditions requiring the attention of a physician.

20 USC 1681; 34 CFR 106.40(b)

LEAVE OF ABSENCE

At any time the School does not maintain a leave policy for its students, or if a student does not otherwise qualify for leave under such a policy, the School shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence for as long as the student's physician deems medically necessary.

At the end of the leave, the School shall reinstate the student to the status she held when the leave began.

20 U.S.C. 1681; 34 CFR 106.40(b)

Adopted: 11/17/95

Amended: 5/25/04, 1/26/07

Reviewed:

INVESTIGATIONS

By School Officials

Administrators, teachers, and other appropriately trained personnel may question a student regarding the student’s own conduct or the conduct of other students.  In the context of school discipline, students have no claim to the right not to incriminate themselves.

By Police or Other Authorities

For provisions pertaining to student questioning by law enforcement officials or other lawful authorities, see Policy GRA.

SEARCHES OF STUDENTS

Students shall be free from unreasonable search and seizure by school officials. School officials may search a student's outer clothing, pockets, or property by establishing reasonable cause or securing the student's voluntary consent. Coercion, either express, or implied, such as threatening to contact parents or police, invalidates apparent consent. U.S. Const., Amend. 4; New Jersey v. T.L.O., 105 S.Ct. 733 (1985); Jones v. Latexo ISD, 499 F.Supp. 223 (1980)

A search is reasonable if it meets both of the following criteria:

  1. The action is justified at the inception, i.e., the school official has reasonable grounds for suspecting that the search will uncover evidence of a rule violation or a criminal violation.\
  2. The scope of the search is reasonably related to the circumstances that justified the search in the first place; i.e., the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

New Jersey v. T.L.O., 469 U.S. 325 (1985)

Searches of Cell Phones and Other Electronic Devices

A TSBVI employee, volunteer or student is prohibited from obtaining, altering, or preventing authorized access to an “electronic communication” while it is in “electronic storage by”:

  1. Intentionally accessing without authorization (i.e. “hacking”) a facility through which an electronic communication service is provided; or
  2. Intentionally exceeding an authorization to access that facility.

Exceptions

This section does not apply to access/search authorized:

  1. By the person or (cell phone service provider providing an electronic communication service);
  2. By a user of that service; or
  3. By sections 18 U.S.C. 2703 (required disclosure of customer communications or records), 2704 (backup preservation), or 2518.

18 U.S.C. 2701(a), (c)

Electronic Communication

“Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system that affects interstate or foreign commerce. 18 U.S.C. 2510(12)

Electronic Storage

“Electronic storage” means:

  1. Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
  2. Any storage of such communication by an electronic communication service for purposes of backup protection of such communication.

18 U.S.C. 2510(17)

Messages that have been sent to a person, but not yet opened, are in temporary, intermediate storage and are considered to be in electronic storage. See Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994). Electronic communications that are opened and stored separately from the provider are considered to be in post-transmission storage, not electronic storage. See Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir. 2004).

By Law Enforcement

In general, a peace officer may not search a person's cellular telephone or other wireless communications device, pursuant to a lawful arrest of the person, without first obtaining a warrant under Code of Criminal Procedure 18.0215.

A peace officer may search a cellular telephone or other wireless communications device without a warrant if:

  1. The owner or possessor of the telephone or device consents to the search;
  2. The telephone or device is reported stolen by the owner or possessor; or
  3. The officer reasonably believes that:
    1. The telephone or device is in the possession of a fugitive from justice for whom an arrest warrant has been issued for committing a felony offense; or
    2. There exists an immediate life-threatening situation, as defined by Code of Criminal Procedure 18A.201.

Code of Crim. Proc. 18.0215

Random Drug Testing

Whether a particular search is reasonable is judged by balancing the intrusion on the individual’s Fourth Amendment interests against the government’s legitimate interests, like public safety.  Thus, the reasonableness of a random student drug-testing policy is determined by balancing the following factors:

  1. The nature of the privacy interest compromised by the drug-testing policy.
  2. The character of the intrusion imposed by the drug-testing policy.
  3. The nature and immediacy of the governmental interests involved and the efficacy of the drug-testing policy for satisfying them.

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386 (1995) (upholding a policy requiring urinalysis drug testing as a condition of participating in athletics); Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 122 S.Ct. 2559 (2002) (upholding a policy requiring urinalysis drug testing as a condition of participating in competitive extracurricular activities)

STEROID TESTING

The UIL shall adopt rules for the annual administration of a steroid testing program under which high school students participating in an athletic competition sponsored or sanctioned by the league are tested at multiple times throughout the year for the presence of steroids.

Results of such steroid tests are confidential and, unless required by court order, may be disclosed only to the student and the student’s parent and the activity directors, principal, and assistant principals of the school attended by the student.

Education Code 33.091(d)–(e)

SEARCHES OF PLACES

Students have full responsibility for the security of their lockers, backpacks and purses.  It is the student’s responsibility to ensure that lockers are locked and that the keys and combinations are not given to others. Students shall not place, keep, or maintain any article or material that is forbidden by law or School policy in lockers backpacks, purses or residences.

School officials may search lockers, backpacks, purses and residences on campus or vehicles parked on school property, if there is reasonable cause to believe that they contain articles or materials prohibited by law or School policy. Students shall be responsible for any prohibited items found in their lockers, backpacks, purses and residences on campus or in vehicles parked on School property.

USE OF TRAINED DOGS

TSBVI may use specially trained non-aggressive dogs to sniff out and alert officials to the current presence of concealed prohibited items, illicit substances defined in Policy FNCF, and alcohol.  This program is implemented in response to drug and alcohol related problems in the School, with the objective of maintaining a safe school environment conducive to education.

Such visits to schools and residences, if made, must be approved in advance by the Superintendent and shall be unannounced.  The dogs shall be used to sniff vacant classrooms, vacant dormitory rooms, vacant common areas, the areas around student lockers, and the areas around vehicles parked on school property.  The dogs shall not be used with students.  If a dog alerts to a locker or an item in a classroom, it may be searched by school officials. 

Trained dogs' sniffing of lockers does not constitute a search under the Fourth Amendment.  The alert of a trained dog to a locker provides reasonable cause for a search of the locker only if the dog is reasonably reliable in indicating that contraband is currently present.  The School need not show that the dog is infallible or even that it is reliable enough to show probably cause.  

Trained dogs’ sniffing students does constitute a search and requires individualized reasonable suspicion before initiating that search.

Horton v. Goose Creek ISD, 690 F.2d. 470 (5th Cir. 1982)

NOTICE

Prior to the implementation of the use of trained dogs and at the beginning of each school year, TSBVI shall inform students and parents of the School’s policy on searches, as outlined above, and shall specifically notify students that:

  1. Lockers may be sniffed by trained dogs at any time.
  2. Classrooms, residences and other common areas may be sniffed by trained dogs at any time when students are not present.
  3. If contraband of any kind is found, the possessing student shall be subject to appropriate legal and disciplinary action in accordance with the Student Code of Conduct.

PARENT NOTIFICATION

The student’s parent or guardian shall be notified if any prohibited articles or materials are found in a student’s locker, property or on the student’s person, as a result of a search conducted in accordance with this policy.

Adopted:         4/7/78

Amended:       1/16/81, 1/14/83, 9/27/90, 11/17/95, 11/15/96, 3/26/04, 11/15/19

Reviewed:

PHILOSOPHY

Parents are partners with educators, administrators, and the School's Board of Trustees in their child's education.  Parents shall be encouraged to actively participate in creating and implementing educational programs for their children.

Unless otherwise provided by law, the Board, a School administrator, or an educator may not limit parental rights.

           

LEGAL REFERENCES

United States Constitution

The School shall take no action abridging the freedom of speech or the right of the people to petition the Board for redress of grievances.  U.S. Const. Amend. I, XIV [See FNA]

The Board may confine its meetings to specified subject matter and may hold nonpublic sessions to transact business.  But when the Board sits in public meetings to conduct public business and hear the views of citizens, it may not discriminate between speakers on the basis of the content of their speech or the message it conveys.  Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828 (1995); City of Madison v. Wis. Emp. Rel. Comm’n, 429 U.S. 167, 174 (1976); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)

Texas Constitution

Citizens shall have the right, in a peaceable manner, to assemble together for their common good and to apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address, or remonstrance.  Tex. Const. Art. I, Sec. 27

There is no requirement that the Board negotiate or even respond to complaints.  However, the Board must stop, look, and listen and must consider the petition, address, or remonstrance.  Prof’l Ass’n of College Educators v. El Paso County Cmty. [College] Dist., 678 S.W.2d 94 (Tex. App.—El Paso 1984, writ ref’d n.r.e.)

Federal Laws

Section 504

A district that receives federal financial assistance, directly or indirectly, and that employs 15 or more persons shall adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by Section 504 of the Rehabilitation Act of 1973.  34 CFR 104.7(b)

Americans with Disabilities Act

A district that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by the Code of Federal Regulations, Title 28, Part 35 (Americans with Disabilities Act regulations).  28 CFR 35.107

Title IX

Because TSBVI receives federal financial assistance, directly or indirectly, it shall adopt and publish grievance procedures providing for prompt and equitable resolution of student complaints alleging any action prohibited by Title IX of the Education Amendments of 1972.  34 C.F.R. 106.8(b) [See FB]

PARENT DEFINED

For purposes of Education Code Chapter 26 (Parental Rights), "parent" includes a person standing in parental relation, but does not include a person as to whom the parent-child relationship has been terminated or a person not entitled to possession of or access to a child under a court order.  Except as provided by federal law, all rights of a parent under Education Code Title 2 and all educational rights under Family Code 151.001(a)(10) shall be exercised by a student who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Family Code Chapter 31 unless the student has been determined to be incompetent or the student's rights have been otherwise restricted by a court order.  Education Code 26.002

PARENTAL RIGHTS LISTED IN EDUCATION CODE CHAPTER 26

  1. Rights concerning academic programs. Education Code 26.003  [See EHA, EIF, FDB, and FMH]
  2. Access to student records. Education Code 26.004  [See FL]
  3. Access to state assessments. Education Code 26.005  [See EKB]
  4. Access to teaching materials. Education Code 26.006  [See EF and EKB]
  5. Access to Board meetings, other than a closed meeting under the Open Meetings Act. Education Code 26.007 [See BE and BEC]
  6. Right to full information concerning a student. Education Code 26.008 [See DF, FFE, and FM]
  7. Right to information concerning special education and education of students with learning disabilities. Education Code 26.0081 [See FB]
  8. Requests for public information. Education Code 26.0085 [See GBA]
  9. Consent required for certain activities. Education Code 26.009 [See EHA, FFE, FL, FM, and FO]
  10. Refusal of psychiatric or psychological treatment of child as basis for report of neglect. Education Code 26.0091 [See FFG]
  11. Exemption from instruction. Education Code 26.010 [See EMB]

Education Code 26.001(a)(c)

COMPLAINT PROCEDURES

The Board establishes the following procedures to consider complaints that a parent's right has been denied and as a grievance procedure under which the Board shall address each complaint that the Board receives concerning a violation of Education Code Chapter 26 (Parental Rights).  Education Code, 26.001(d), 26.011

The purpose of these procedures is to secure at the lowest possible administrative level, prompt and equitable resolution of student or parent complaints.  Except as provided below, all student or parent complaints shall be presented in accordance with this policy.

The Board is not required by the provision above or Education Code 11.1511(b)(13) (requiring adoption of a process to hear complaints) to address a complaint concerning a student’s participation in an extracurricular activity that does not involve a violation of a right guaranteed by Education Code Chapter 26.  This provision does not affect a claim brought by a parent under the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.) or a successor federal statute addressing special education services for a child with a disability.  [See Policy FOF]

Education Code 26.011

CERTAIN COMPLAINTS

Complaints regarding certain topics are addressed by specific policies that modify this complaint process or require an alternative process:

  1. Discrimination on the basis of gender: [See FB]
  2. Sexual abuse or sexual harassment of a student: [See FH]
  3. Loss of credit on the basis of attendance: [See FEC]
  4. Teacher removal of a student for disciplinary reasons: [See FOA]
  5. Removal of a student to a disciplinary alternative education program: FOA, FOB, FOC, [See resident local school district policies.]
  6. Expulsion of a student: FOD
  7. Identification, evaluation, or educational placement of a student with a disability within the scope of Section 504: FB
  8. Identification, evaluation, or educational placement of a student with a disability within the scope of IDEA: EHBA and the parent's rights handbook provided to parents of all students enrolled in the School's regular school year program
  9. Instructional materials: EFA
  10. On-campus distribution of non-school materials to students: FMA

GENERAL PROVISIONS

Unless otherwise provided by a policy referenced above, students or parents shall be entitled to informal conferences with administrators to resolve their complaints.  If such attempts are unsuccessful, the students or parents may take their complaint to the Board.  If a complaint involves a problem with a teacher, the student or parent in most circumstances shall be expected to discuss the matter with the teacher before requesting a conference with the Principal or Program Director at Level One.

The student may be represented by an adult at any level of the complaint.

Days

The definition of "day" means calendar day unless otherwise defined in law or Board policy.

In computing any period of time prescribed or allowed by this policy, the day of the aggrieved act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period is included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.    The day on which a complaint is filed is not counted in calculating the designated period of time.  If a complaint is received by mail, the date of the filing is the date of the postmark. 

Any extension to the stated timelines in this policy shall be considered by the Superintendent on a case by case basis.

LEVEL ONE

A student or parent who has a complaint shall request a conference with the Principal or Program Director within ten days of the time the student or parent knew, or should have known, of the event or series of events causing the complaint. The Principal or Program Director shall schedule and hold a conference with the student or parent within ten days of the request.  If the complaint is one of sexual harassment or Section 504 discrimination, the Principal or Program Director shall include the School's Title IX or 504 Coordinator respectively, in the conference.  The Principal or Program Director shall provide the student or parent a written response within ten days from the date of the conference.

LEVEL TWO

If the outcome of the conference with the Principal or Program Director is not to the student's or parent's satisfaction, the student or parent may request, within ten days, a conference with the Superintendent or designee, who shall schedule and hold a conference within ten days from receiving the request.  Prior to or at the time of the conference, the student or parent shall submit a written complaint that includes a statement of the complaint, any evidence in its support, the solution sought, the student's or parent's signature, and the date of the conference with the Principal or Program Director.  The Superintendent shall provide a written response to the student or parent within ten days from the date of the conference.

LEVEL THREE

If the outcome of the conference with the Superintendent or designee is not to the student's or parent's satisfaction, the student or parent may submit to the Superintendent within 30 days a written request to place the matter on the agenda of the next regular Board meeting.

The Superintendent shall inform the student or parent of the date, time, and place of the meeting.  The presiding officer shall establish a reasonable time limit for complaint presentations.

The Board shall hear the complaint and take whatever action it deems appropriate.  The lack of official action by the Board shall uphold the administrative decision at Level Two.  The Board President shall provide a written response stating the decision of the Board within ten days from the date of the hearing before the Board.

Closed Meeting

The Board may conduct a closed meeting on a parent or student complaint to the extent required or provided by law.  Gov't Code Ch. 551, Subch. D [see BEC]

If the complaint involves concerns or charges regarding an employee, it shall be heard by the Board in closed meeting unless the employee to whom the complaint pertains requests that it be public.

APPEAL TO THE COMMISSIONER AND RECORD OF PRODEEDING

A decision of the Board may be appealed to the Commissioner of Education if the student is aggrieved by an action or decision of the Board that violates the school laws of the State.  An appeal of a Board’s decision shall be based on a review of the record developed at the Board level. "Record" includes, at a minimum, an audible electronic recording or written transcript of all oral testimony or argument.  Education Code 7.057(c), (f); 19 TAC 157.1073(d)

It is the School’s responsibility to make and preserve the records of the proceedings before the Board.  If the School fails to create and preserve the record without good cause, all substantial evidence issues that require missing portions of the record for resolution shall be deemed against the School.  The record shall include:

  1. A tape recording or a transcript of the hearing at the local level. If a tape recording is used:
    1. The tape recording must be complete, audible, and clear; and
    2. Each speaker must be clearly identified.
  2. All evidence admitted;
  3. All offers of proof
  4. All written pleadings, motions, and intermediate rulings;
  5. A description of matters officially noticed;
  6. If applicable, the decision of the hearing examiner;
  7. A tape recording or transcript of the oral argument before the Board; and
  8. The decision of the Board.

19 TAC 157.1073(d)

Disruption

It is a criminal offense for a person, with intent to prevent or disrupt a lawful meeting, to substantially obstruct or interfere with the ordinary conduct of a meeting by physical action or verbal utterance and thereby curtail the exercise of others’ First Amendment rights.  Penal Code 42.05; Morehead v. State, 807 S.W. 2d 577 (Tex. Crim. App. 1991)

ACADEMIC PROGRAMS

A parent is entitled to:

  1. Request from the Superintendent, with the expectation that the request will not be unreasonably denied:
    1. *The addition of a specific academic class in the course of study of the parent's child in keeping with the required curriculum if sufficient interest is shown in the addition of the class to make it economically practical to offer the class. [See EHA]
    2. *That the parent's child be permitted to attend a class for credit above the child's grade level, whether in the child's school or another school, unless the Board or its designated representative expects that the child cannot perform satisfactorily in the class. The decision of the Board concerning such a request is final and may not be appealed. [See EHA]
    3. Have a child who graduates early participate in graduation ceremonies at the time the child graduates. [See EIF]

*The decision of the Board concerning these requests is final and may not be appealed.

Education Code 26.003(a)(3)(A), (B), (b)

STUDENT RECORDS AND INFORMATION

A parent is entitled to full information regarding the school activities of a parent's child except as provided by state child abuse laws.  A parent is entitled to access to all written records of the School concerning the parent's child, including:

  1. Attendance records;
  2. Test scores;
  3. Grades;
  4. Disciplinary records;
  5. Counseling records;
  6. Psychological records;
  7. Applications for admission;
  8. Health and immunization information;
  9. Teacher and counselor evaluations; and
  10. Reports of behavioral patterns.

 

Education Code 26.004, 26.008(a) [See FL, FM]

CHALLENGE TO EDUCATION RECORDS

The School shall give a parent or eligible student, on request, an opportunity for a hearing to challenge the content of the student’s education records on the grounds that the information contained in the records is inaccurate, misleading, or in violation of the privacy rights of the student.  34 C.F.R. 99.21 [See FL]

OBJECTION TO CLASS ASSIGNMENT

The parent or person standing in parental relation to any student may object to the student’s class assignment.  Upon receiving a written petition to request or object to a student’s assignment, the parent should confer with the student’s teacher.  If the outcome is not satisfactory, the parent shall present a written complaint according to the procedure described above in this policy and to the ARD Committee.  If the complaint reaches the Board for resolution, the Board shall follow the procedures set forth at Education Code 25.034.  Education Code 25.033(2), .034  [See FDB]

COMPLAINTS AGAINST PROFESSIONAL EMPLOYEES

A person may not file suit against a professional employee of the School unless the person has exhausted the School’s remedies for resolving the complaint.  Education Code 22.0514

“Professional employee’ includes:

  1. A superintendent, principal, teacher, including a substitute teacher, supervisor, social worker, therapist, school counselor, nurse, and teacher’s aide employed by TSBVI;
  2. A teacher employed by a company that contracts with TSBVI to provide the teacher’s services to the School;
  3. A student in an education preparation program participating in a field experience or internship;
  4. A DPS-certified school bus driver;
  5. A member of the Board; and
  6. Any other person whose employment by the School requires certification or license and the exercise of discretion.

Education Code 22.051(a)

DENIAL OF CLASS CREDIT OR FINAL GRADE

If a student is denied credit or a final grade for a class by an attendance committee, the student may appeal the decision to the Board.  Education Code 25.092(d)  [See FEC]

FINALITY OF GRADES

An examination or course grade issued by a classroom teacher is final and may not be changed unless the grade is arbitrary, erroneous, or not consistent with the School’s grading policy applicable to the grade, as determined by the Board.

The Board’s determination is not subject to appeal.  This provision does not prohibit an appeal related to a student’s eligibility to participate in extracurricular activities under Education Code 33.081.  [See FM]  Education Code 28.0214

PUBLIC INFORMATION REQUESTS

When the School receives a request from a parent for public information relating to the parent’s child, the School shall comply with Government Code Chapter 552 (Public Information Act).  The School shall also comply with the deadlines and provisions set forth at Education Code 26.0085.  Gov’t Code Ch. 552; Education Code 26.0085

If the parent's request is for the educational records of their child, the procedure and applicable laws can be found in TSBVI Board Policy FL.

Fees

TEA or the School may charge a reasonable fee in accordance with the public information laws, for copies of materials described above provided to a parent.  Education Code 26.012 [See GBA]

ASSESSMENTS

A parent is entitled to access to a copy of each state assessment instrument administered to the parent's child, but a parent is not entitled to access to copies of questions that are being field-tested by TEA and were not used to compute a student's score.  Education Code 26.005 [See EKB]

PARENT-TEACHER ORGANIZATION

If a group of teachers and parents organize a bona fide Parent-Teacher Organization, the Board shall cooperate in the establishment of ongoing operations of at least one parent-teacher organization at the School to promote parental involvement in school activities.  Education Code 26.001(e) [See GE]

BOARD MEETINGS

A parent is entitled to complete access to any meeting of the Board, other than a closed meeting held in compliance with the Open Meetings Act.  The Board must hold each public meeting in compliance with the Open Meetings Act. [See BE]  Education Code 26.007

LIMITATIONS ON SCHOOL EMPLOYEES

An attempt by any School employee to encourage or coerce a child to withhold information from the child's parent is grounds for discharge or suspension without pay.  Education Code 26.008(b) [See DF]

Parental Consent

A School employee must obtain the written consent of a child's parent before the employee may:

  1. Conduct a psychological examination, test, or treatment, unless the examination, test, or treatment is required by state child abuse laws. [See FFE]
  2. Make or authorize the making of a videotape of a child or record or authorize the recording of a child's voice. [See EHA, FM]

Consent Not Required

A School employee is not required to obtain the consent of a child's parent before the employee makes a videotape or authorizes the recording of a child's voice if the videotape or voice recording is to be used only for:

  1. Purposes of safety, including the maintenance of order and discipline in common areas of the school or on school buses. [See FO]
  2. A purpose related to a co-curricular or extracurricular activity. [See FM]
  3. A purpose related to a regular classroom instruction. [See EHA]
  4. Media coverage of the school.

Education Code 26.009

Exemption from Instruction

A parent is entitled to remove the parent's child temporarily from a class or other school activity that conflicts with the parent's religious or moral beliefs if the parent presents or delivers to the teacher of the parent's child a written statement authorizing the removal of the child from the class or other school activity.  A parent is not entitled to remove the parent's child from a class or other school activity to avoid a test or to prevent the child from taking a subject for an entire semester, nor is the child exempt from satisfying grade level or graduation requirements in a manner acceptable to TSBVI and TEA.

Education Code 26.010 [See EMB]

Adopted:         10/13/78

Amended:       1/14/88, 6/1/89, 9/27/91, 9/25/92, 1/29/93, 11/18/94, 11/14/97, 5/28/03, 10/3/14, 11/21/14, 8/9/19

Reviewed:

STUDENT CODE OF CONDUCT

The Board shall adopt a Student Code of Conduct (SCOC) for TSBVI with the advice of the Instructional Planning Council.  The student code of conduct must:

  1. Specify the circumstances, in accordance with Education Code Chapter 37, Subchapter A, under which a student may be removed from a classroom, campus, or disciplinary alternative education program (DAEP), or vehicle owned and operated by TSBVI.
  2. Specify conditions that authorize or require a principal or other appropriate administrator to transfer a student to a DAEP.
  3. Outline conditions under which a student may be suspended, as provided by Education Code 37.005 (see FOB), or expelled, as provided by Education Code 37.007 (see FOD).
  4. Specify that consideration will be given as a factor in each decision concerning suspension, removal to a DAEP, or expulsion, regardless of whether the decision concerns a mandatory or discretionary action to:
  5. Self-defense;
  6. Intent or lack of intent at the time the student engaged in the conduct;
    1. A student’s disciplinary history; or
    2. A disability that substantially impairs the student’s capability to appreciate the wrongfulness of the student’s conduct.
  1. Provide guidelines for setting the length of removal to a DAEP or of expulsion. Except as provided by Education Code 37.007(e) (Gun-Free Schools Act [see FOD], TSBVI is not required to specify a minimum term of removal or expulsion.
  2. Address the notification of the parent or guardian of a student's violation of the Student Code of Conduct that results in suspension, removal to a DAEP, or expulsion.
  3. Prohibit bullying, harassment, and making hit lists and ensure that TSBVI employees enforce those prohibitions.

“Bullying” has the meaning provided by Education Code 37.0832. [See FFI]

“Harassment” means threatening to cause harm or bodily injury to another student, engaging in sexually intimidating conduct, casing physical damage to the property of another student, subjecting another student to physical confinement or restraint, or maliciously taking any action that substantially harms another student’s physical or emotional health or safety.

 “Hit list” means a list of people targeted to be harmed using a firearm, as defined by Penal Code 46.01(3) [see FNCG]; a knife, as defined by Penal Code 46.01(7) (any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument); or any other object to be used with intent to cause bodily harm.

  1. Provide, as appropriate for students at each grade level, methods, including options, for:
    1. Managing students in the classroom, on school grounds, and on a vehicle owned or operated by TSBVI;
    2. Disciplining students; and
    3. Preventing and intervening in student discipline problems, including bullying, harassment and making hit lists.

The methods adopted must provide that a student who is enrolled in a special education program under Education Code Chapter 29, Subchapter A, may not be disciplined for bullying, harassment, or making hit lists until an admission, review or dismissal (ARD) committee meeting has been held to review the conduct.  [See FOF]

  1. Include an explanation of the provisions regarding refusal of entry to or ejection from TSBVI property under Education Code 37.105 [see GKA], including the appeal process established under 37.105(h).

CHANGES IN STUDENT CODE OF CONDUCT

Once the Student Code of Conduct is promulgated, any change or amendment shall be approved by the Board.

POSTING

The Student Code of Conduct must be posted and prominently displayed at TSBVI or made available for review at the office of the Principal.  Education Code 37.001

NOTICE TO PARENTS

Each school year, TSBVI shall provide parents with notice of and information regarding the Student Code of Conduct. Education Code 37.001(d)

Noncustodial Parent

A noncustodial parent may request in writing that, for the remainder of the school year in which the request is received, TSBVI provide that parent with a copy of any written notification that is generally provided to a student's parent or guardian, relating to student misconduct under Education Code 37.006 or 37.007. TSBVI may not unreasonably deny the request.  Notwithstanding this requirement, TSBVI shall comply with any applicable court order of which TSBVI has knowledge.  Education Code 37.0091

COPIES TO STAFF

TSBVI shall provide each teacher and administrator with a copy of Education Code Chapter 37, Subchapter A regarding student discipline and with a copy of the related local policy.  Education Code 37.018

CAMPUS BEHAVIOR COORDINATOR

The Principal is designated to serve as the campus behavior coordinator (CBC).  The Principal may select another campus administrator to serve as CBC.

The CBC is primarily responsible for maintaining student discipline and the implementation of Education Code Chapter 37, Subchapter A.

Duties

The specific duties of the CBC may be established by campus or board policy.  Unless the policy provides otherwise, duties imposed on the Principal or other campus administrator by Education Code Chapter 37, Subchapter A must be performed by the CBC and a power granted to a Principal may be exercised by the CBC.

Notice to Parents

The CBC shall promptly notify a student’s parent or guardian if the student is placed into in-school or out-of-school suspension, placed in a DAEP, expelled, or placed in a JJAEP or is taken into custody by a law enforcement officer.

The CBC must provide notice by promptly contacting the parent or guardian by telephone or in person; and making a good faith effort to provide written notice of the disciplinary action to the student, on the day the action is taken, for delivery to the student’s parent or guardian.

If a parent or guardian entitled to notice has not been reached by telephone or in person by 5 p.m. of the first business day after the day the disciplinary action is taken, the CBC shall mail written notice of the action to the parent or guardian at the parent’s or guardian’s last known address.

If the CBC is unable or not available to promptly provide notice, the principal’s other designee shall provide the notice.  Education Code 37.0012

NO UNSUPERVISED SETTING

Except for students who are suspended or expelled, no student may be placed in an unsupervised setting as a result of conduct for which a student may be placed in a DAEP.  Education Code 37.008(h)

CONTINUATION OF DISCIPLINARY ACTION

If TSBVI takes disciplinary action against a student and the student subsequently enrolls in another district or school before the expiration of the period of disciplinary action, TSBVI shall provide to the district or school in which the student enrolls, at the same time other records of the student are provided, a copy of the order of disciplinary action.

"Disciplinary action" means a suspension, expulsion, placement in an alternative education program, or other limitation in enrollment eligibility of a student.

"District or school" includes an independent school district, a home-rule school district, a campus or campus program charter holder, or an open-enrollment charter school.

Education Code 37.021

OPPORTUNITY TO COMPLETE COURSES

If a student is placed in in-school suspension or other alternative setting other than a DAEP, TSBVI shall offer the student the opportunity to complete, before the beginning of the next school year, each course in which the student was enrolled at the time of removal.  TSBVI may provide the opportunity by any method available, including a correspondence course or distance learning.  Education Code 37.021 [For DAEP notice requirements, see FOCA.]

SECLUSION

A School employee or volunteer or an independent contractor of TSBVI may not place a student in seclusion.  Education Code 37.0021(c)

“Seclusion” means a behavior management technique in which a student is confined in a locked box, locked closet, or locked room that:

  1. Is designed solely to seclude a person; and
  2. Contains less than 50 square feet of space.

Education Code 37.0021(b)(2)

Exceptions

This prohibition on seclusion does not apply to:

  1. A peace officer performing law enforcement duties: or
  2. An educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of a school district.

“Law Enforcement Duties”

“Law enforcement duties means activities of a peace officer relating to the investigation and enforcement of state criminal laws and other duties authorized by the Code of Criminal Procedure. 

Education Code 37.0021(b)(4), (g)

RESTRAINT REPORTS

TSBVI shall report electronically to TEA, in accordance with standards provided by commissioner rule, information relating to the use of restraint by a peace officer performing law enforcement duties on school property or during a school-sponsored or school-related activity.  The report must be consistent with the requirements adopted by commissioner rule for reporting the use of restraint involving students with disabilities [see FOF].  Education Code 37.0021(i)

“Restraint” means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of a student’s body.  Education Code 37.0021(b)(i)  [see FOF].  Education Code 37.0011(a)

CORPORAL PUNISHMENT PROHIBITED

Corporal punishment or acts of any kind of deliberate infliction of physical pain by hitting a student including but not limited to slapping, paddling, spanking, shaking, jerking, or any physical force which is directed at causing physical pain is prohibited.  The term does not include physical pain caused by reasonable physical/activities associated with athletic training, competition or physical education or the use of restraint as authorized under Education Code 37.0021  [see FOF] Education Code 37.0011(a)

USE OF FORCE TO MAINTAIN DISCIPLINE

The use of force, but not deadly force, against a student is justified if the teacher or administrator is entrusted with the care, supervision, or administration of the student when, and to the degree the teacher or administrator reasonably believes the force is necessary, to further the purpose of education or to maintain discipline in a group.  Penal Code 9.62

OTHER TYPES OF PROHIBITED CONDUCT

The following techniques shall not be used with any student as part of any planned or unplanned behavior intervention:

  1. Depriving a student of any basic need such as sleep, meals and nutrition, or clothing.
  2. Forcing a student to engage in any behavior that is embarrassing, painful, or physically uncomfortable.
  3. Using derogatory language or procedures that are designed to embarrass a student.

VIDEOTAPES AND RECORDINGS

A TSBVI employee is not required to obtain the consent of a child's parent before the employee may make a videotape or recording of the child’s voice if the videotape or recording is to be used only for purposes of safety, including the maintenance of order and discipline in common areas of the school and dormitories or on school buses.  Education Code 26.009(b)(1) [See FNG]

REPORTS

Disciplinary Alternative Education Programs (DAEPS)

For each placement in a disciplinary alternative education program (DAEP), TSBVI shall annually report to the commissioner:

  1. Information identifying the student, including the student's race, sex, and date of birth, that will enable TEA to compare placement data with information collected through other reports;
  2. Information indicating whether the placement was based on:
    1. Conduct violating the Student Code of Conduct (SCOC);
    2. Conduct for which a student may be removed from class by a teacher [see FOA and SCOC];
    3. Conduct for which placement in a DAEP is required [see FOC and SCOC]; or
    4. Conduct occurring while a student was enrolled in another District and for which placement in a DAEP is permitted by Education Code 37.008(j);
  3. The number of full or partial days the student was assigned to the program and the number of full or partial days the student attended the program; and
  4. The number of placements that were inconsistent with the guidelines on length of placement in the Student Code of Conduct.

Expulsions

For each expulsion TSBVI shall annually report to the commissioner:

  1. Information identifying the student, including the student's race, sex, and date of birth, that will enable TEA to compare placement data with information collected through other reports;
  2. Information indicating whether the expulsion was based on:
    1. Conduct for which expulsion is required, including information specifically indicating whether a student was expelled for bringing a firearm to school;
    2. Conduct for which expulsion is permitted;
  3. The number of full or partial days the student was expelled; and
  4. Information indicating whether:
    1. The student was placed in a juvenile justice alternative education program (JJAEP);
    2. The student was placed in a DAEP; or
    3. The student was not placed in a JJAEP or other alternative education program; and
  5. The number of expulsions that were inconsistent with the guidelines on length of expulsion in the Student Code of Conduct.

Education Code 37.006, 37.007, 37.02

Adopted: 4/7/78
Amended: 9/9/83, 9/21/84, 10/25/85, 7/17/87, 3/26/93, 11/18/94, 9/27/96, 1/24/02, 5/28/03, 11/19/04, 1/26/18
Reviewed:

STUDENT PLACEMENT

The placement of a TSBVI student may be made only by a duly constituted admission, review, and dismissal committee.  Education Code 37.004

When a TSBVI student’s behavior impedes his or her learning or that of others, the ARD committee must consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.  34 CFR 300.346

DISCRETIONARY REMOVAL

A teacher may remove a student from class:

  1. Who has been documented by the teacher to repeatedly interfere with the teacher's ability to communicate effectively with the students in the class or with the ability of the other students to learn; or
  2. Whose behavior the teacher determines is so unruly, disruptive, or abusive that it seriously interferes with the teacher's ability to communicate effectively with the students or with the ability of other students to learn.

Education Code 37.002(b)

Placement of Student Pursuant to ARD Decision

If a teacher removes a student from class under the provisions above, the principal may place the student in another appropriate classroom, in-school suspension, or a disciplinary alternative education program (DAEP) on campus before returning the student to the local school district pursuant to an ARD decision.

Conference by Third Day Required

Not later than the third class day after the day on which a student is removed from class by the teacher under the above provision or by the school principal or other appropriate administrator under the Student Code of Conduct, the principal or other appropriate administrator shall schedule an ARD meeting or informal conference with a parent or guardian of 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 classroom 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, after consideration of the mitigating factors (see below), shall convene an ARD meeting to consider the placement of the student for a period consistent with the Student Code of Conduct. 

Mitigating Factors

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.  Education Code 37.009(a)

Appeals

If TSBVI policy allows a student to appeal to the Board or the Board’s designee, a decision of the principal or other appropriate administrator (other than an expulsion under Section 37.007) the decision of the Board or the Board’s designee is final and may not be appealed.

Placement Length

The period of the expulsion or DAEP placement may not exceed one year unless, after a review, the local school district determines that the student is a threat to the safety of other students or to district employees.

Prohibitions on Activities

The terms of the removal may prohibit the student from attending or participating in school-sponsored or school-related activities.

Education Code 37.002(c)

MANDATORY REMOVAL BY A TEACHER

A teacher shall remove a student from class and send him/her to the principal for placement in a DAEP or expulsion, as appropriate, for engaging in conduct described in Education Code 37.006 (Removal) or 37.007 (Expulsion).  [See FOC and FOD] Education Code 37.002(d)

RETURN TO CLASS

The student shall not be returned to the classroom of the teacher who has removed the student unless the ARD committee determines that the student should be returned.

If the teacher removed the student from class because the student engaged in the elements of an offense listed in Education Code 37.006(a)(2)(B) or 37.007(a)(2)(A) or (b)(2)(C) (assault, sexual assault, attempted murder) against the teacher, the student may not be returned to the teacher’s class without the teacher’s consent.  The teacher may not be coerced to consent.

Education Code 37.002(c), (d)

Parent’s responsibility

A parent or guardian should support school officials in their efforts to operate a safe and efficient transportation system and is expected to:

  1. Read and discuss with the student the responsibilities, rules of behavior, and consequences for violations;
  2. Inform the student of the location of the bus stop, the pickup time, and the necessity to wait in single line; and
  3. Ensure that the student is at the bus stop five minutes prior to the scheduled pickup time.

If the student is suspended from the bus, the parent is responsible for ensuring transportation for the student to and from school.  Failure of the student to attend school during the suspension is an unexcused absence.

Adopted:         9/27/96

Amended:       1/24/02, 11/19/04, 8/9/19

Reviewed:

SUSPENSION AUTHORIZED

The principal or other appropriate administrator may suspend a student who engages in conduct identified in the Student Code of Conduct as conduct for which a student may be suspended.  Education Code 37.005(a)

Maximum Length

A suspension may not exceed three school days.  Education Code 37.005(b)

Students Below Grade 3

A student who is enrolled in a grade level below grade 3 may not be placed in 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:

  1. Conduct that contains the elements of an offense related to weapons under Penal Code 46.02 or 46.05;
  2. Conduct that contains the elements of a violent offense related under Penal Code 22.01, 22.011, 22.02, 22.021; or
  3. Selling, giving, or delivering to another person or possessing, using, or being under the influence of any amount of:
    1. Marihuana or a controlled substance, as defined by Health and Safety Code Chapter 481, or by 21 U.S.C. Section 801 et seq.;
    2. A dangerous drug, as defined by Health and Safety Code Chapter 483; or
    3. An alcoholic beverage, as defined by Alcoholic Beverage Code 1.04.

Education Code 37.005(c)

POSITIVE BEHAVIOR PROGRAM

TSBVI may develop and implement a program, in consultation with the campus behavior coordinator (principal) [see FO] and representatives of a regional education service center, that provides a disciplinary alternative for a student enrolled in a grade level below grade 3 who engages in conduct described by Education Code 37.005(a) [at Suspension Authorized, above] and is not subject to 37.005(c) [at Students below Grade 3, above]. The program must:

  1. Be age-appropriate and research-based;
  2. Provide models for positive behavior;
  3. Promote a positive school environment;
  4. 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
  5. Provide behavior management strategies including:
    1. Positive behavioral intervention and support;
    2. Trauma-informed practices;
    3. Social and emotional learning;
    4. A referral for services, as necessary; and
    5. Restorative practices.

TSBVI may annually conduct training for the School staff on the program adopted.

Education Code 37.0013

Adopted: 4/7/78
Amended: 3/10/88, 9/27/96, 11/19/04, 1/26/18
Reviewed: 1/24/02

DISCIPLINARY ALTERNATIVE EDUCATION PROGRAM

TSBVI shall provide a disciplinary alternative education program (DAEP) that meets the following criteria:

  1. Is provided in a setting other than the student's regular classroom.
  2. Is located on or off the School campus.
  3. Provides for the students who are assigned to the disciplinary alternative education program to be separated from students who are not assigned to the program.
  4. Focuses on English language arts, mathematics, science, history, and self
  5. Provides for students' educational and behavioral needs.
  6. Provides supervision and counseling.
  7. Requires that to teach in an off-campus DAEP, each teacher must meet all certification requirements under Education Code Chapter 21, Subchapter B, except that teachers in a DAEP of any kind who were employed by TSBVI during the 2003-04 school year or an earlier school year must meet the certification requirements by the beginning of the 2005-06 school year.

The DAEP may provide for a student's transfer to a different campus, a school-community guidance center, or a community-based alternative school.

Education Code 37.008(a)(b)

ELEMENTARY SCHOOL STUDENTS

An elementary school student may not be placed in a DAEP with any other student who is not an elementary school student.

Education Code 37.006(f)

ACADEMIC MISSION

The academic mission of DAEPs shall be to enable students to perform at grade level.

Education Code 37.008(m)

Opportunity to Complete Coursework

TSBVI shall offer a student removed to a DAEP an opportunity to complete coursework, before the beginning of the next school year, through any method available, including a correspondence course, distance learning, or summer school. TSBVI may not charge the student for a course provided under this subsection. Except for this requirement, TSBVI is not required to provide in the DAEP a course necessary to fulfill a student's high school graduation requirements.

Education Code 37.008(l)

DRUG AND ALCOHOL TREATMENT

A program of educational and support services may be provided to a student and the student's parents when the offense involves drugs or alcohol as specified under Education Code 37.006 and 37.007. A DAEP that provides chemical dependency treatment services must be licensed under Health and Safety Code Chapter 464.

Education Code 37.008(k)

OFF-CAMPUS PROGRAM

An off-campus DAEP is not subject to a requirement imposed by the Education Code, other than a limitation on liability, a reporting requirement, or a requirement imposed by Education Code Chapter 37 or Chapter 39.

Education Code 37.008(c)

FUNDING

A student removed to a DAEP is counted in calculating TSBVIs average daily attendance for the student's time in actual attendance in the program.

Education Code 37.008(f)

ALLOCATIONS TO DAEPS

TSBVI shall allocate to a DAEP the same expenditure per student attending the DAEP as would be allocated to the student school if the student were attending the student's regularly assigned special education program.

Education Code 37.008(g) [See also EHBC]

JOINTLY CREATED PROGRAMS

TSBVI may provide a DAEP jointly with one or more other districts.

Education Code 37.008(d)

COOPERATION AND ASSISTANCE

TSBVI shall cooperate with government agencies and community organizations that provide services in to students placed in a DAEP.

Education Code 37.008(e)

ANNUAL EVALUATION

TEA shall provide an annual evaluation for the School to be considered in complying with Education Code 11.252 (see BQ (LEGAL), BQA(LEGAL)). Performance data shall be disaggregated with respect to race, ethnicity, and socioeconomic status. Information reported shall conform to limitations consistent with requirements under the Federal Educational Rights and Privacy Act of 1974 (see FL(LEGAL)). The Commissioner may consider the results of this evaluation as a component of monitoring and/or a special accreditation investigation.

The performance of the Schools AEP shall be evaluated on the basis of specific indicators in relation to appropriate performance benchmarks. This evaluation shall be based on the following indicators, with consideration given to the length of student assignment:

  1. Student performance on state assessment instruments, including appropriate Texas Learning Index measures;
  2. Other indicators of student performance in the annual evaluation, which may include course completion rates, dropout rates, completion rates, and attendance rates; and
  3. Repeated disciplinary actions resulting in placement in an alternative education setting.

In addition, the Schools DAEP and overall discipline management in preventing referrals shall be evaluated annually on the basis of identification and placement practices. Placement indicators are evaluated against appropriate standards and include the following:

  1. Percentage of a district's students placed in DAEP, considering all discretionary placements under Education Code 37.001, 37.002, 37.006, and 37.007, and, separately, those mandatory placements under Education Code 37.006 and 37.007;
  2. Percentage of a district's minority and economically disadvantaged students placed in a DAEP, considering all discretionary placements under Education Code 37.001, 37.002, 37.006, and 37.007, and, separately, those mandatory placements under Education Code 37.006 and 37.007; and
  3. Percentage of a district's students with disabilities placed in a DAEP, considering all discretionary placements under Education Code 37.001, 37.002, 37.006, and 37.007, and, separately, those mandatory placements under Education Code 37.006 and 37.007.

19 TAC 97.1021

Adopted: 9/27/96
Amended: 1/24/02, 11/19/04
Reviewed:

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:

STUDENTS WITH DISABILITIES UNDER SECTION 504

The local school district has the duty to conduct evaluations pursuant to 34 C.F.R. 104.35(b) before transferring a student to TSBVI.  A TSBVI student with a disability under Section 504 shall not be removed from school for more than ten consecutive school days unless the student’s ARD committee first determines that the misbehavior is not a manifestation of the student's disability.  The ARD committee must have available to it evaluation data that is recent enough to afford an understanding of the student's current behavior.  If it is determined that the misconduct is not caused by the student's disability, the student may be excluded from school in the same manner as similarly situated nondisabled students. [See Student Code of Conduct]  If it is determined that the misconduct is caused by the student's disability, the ARD committee must determine whether the student's current educational placement is appropriate. 34 CFR 104.35(a)

TSBVI may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student with a disability who is currently engaging in the illegal use of drugs or in the use of alcohol to the same extent that a local school district would take disciplinary action against nondisabled students.  The due process procedures afforded under Section 504 do not apply to such disciplinary action.  29 U.S.C. 705(20)(C)(iv)

CHANGE IN PLACEMENT

Students Receiving Special Education Services Under IDEA

All disciplinary actions regarding students with disabilities must be determined in accordance with 34 C.F.R. 300.101(a) and 300.530-300.536; Education Code Chapter 37, Subchapter A; and 19 TAC 89.1053 (relating to Procedures for Use of Restraint and Time-Out).  19 TAC 89.1050(k)

Assignment for less than ten days is not a change of placement.  The placement determination of a TSBVI student may be made only by a duly constituted admission, review, and dismissal (ARD) committee.  Any disciplinary action regarding a TSBVI student that would constitute a change in placement under federal law may be taken only after the student's ARD committee conducts a manifestation determination review under 20 U.S.C. 1415(k) and its subsequent amendments.  Any disciplinary action regarding the student shall be determined in accordance with federal law and regulations, including laws or regulations requiring the provision of:

  1. Functional behavioral assessments;
  2. Positive behavioral interventions, strategies, and supports;
  3. Behavioral intervention plans; and
  4. The manifestation determination review.

The methods adopted in the Student Code of Conduct [see FO] for discipline management and for preventing and intervening in student discipline problems must provide that a student who is enrolled in the special education program at TSBVI may not be disciplined for bullying, harassment, or making hit lists until an ARD committee meeting has been held to review the conduct.  The student may be assigned to DAEP for ten days or less pending an ARD meeting.  Education Code 37.001(b-1)

DAEP Placement Not Solely for Educational Purposes

A TSBVI student may not be placed in a disciplinary alternative education program (DAEP) solely for educational purposes.  A teacher in a DAEP under Education Code 37.008 who has a special education assignment must hold an appropriate certificate or permit for that assignment.  Education Code 37.004(c)-(d)

A change in placement occurs if a TSBVI student is:

  1. Removed from the student's current educational placement for more than ten consecutive school days; or
  2. Subjected to a series of removals that constitute a pattern because they total more than ten school days in a school year, and because of factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals to one another.
  3. The student’s behavior is substantially similar to the student’s behavior in the previous incidents that resulted in the series of removals. TSBVI determines, on a case-by-case basis, whether a pattern of removals constitutes a change in placement.  20 U.S.C. 1415(k)(1)(A),
  4. School personnel may consider any unique circumstances on case-by-case basis when determining whether to order a change in placement for a student who violates the student code of conduct. TSBVI’s determination is subject to review through a due process and judicial proceedings. 

34 CFR 300.536

REMOVALS FOR TEN DAYS OR LESS

TSBVI personnel may remove a TSBVI student from the student's current placement for not more than ten consecutive school days for any violation of the Student Code of Conduct.  20 U.S.C. 1415(k)(1)(B); 34 CFR 300.530(b)(1)

TSBVI may provide services pursuant to the student’s IEP for a period of five days of less during the period of removal if the local school district is responsible for providing services to a child for longer periods of removal.  34 C.F.R. 300.530(d)

SUBSEQUENT REMOVALS OF TEN DAYS OR LESS

School personnel may approve additional removals of not more than ten consecutive school days in the same school year for separate incidents of misconduct, so long as those removals do not constitute a change in placement (defined above).  34 C.F.R. 300.530(b)(1)

Services During Removal

After a student has been removed from his or her current placement for ten school days in the same school year, during any subsequent removal of ten consecutive school days or less, the ARD committee shall determine the extent to which services are needed so as to enable the student to continue to participate, as appropriate, in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP.  20 U.S.C. 1415(k)(1)(D); 34 C.F.R. 300.530(d)

Notice of Procedural Safeguards

Not later than the date on which the decision to take the disciplinary action is made, the local district shall notify the student’s parents of the decision and of all procedural safeguards [see EHBAE].  20 U.S.C. 1415(k)(1)(H)

MORE THAN TEN DAYS OF REMOVAL IN A SCHOOL YEAR

Either before or not later than ten consecutive school days after removing a student for more than ten consecutive school days or commencing a removal that constitutes a change in placement:

If Not Done Already, Develop FBA And BIP

  1. If TSBVI did not conduct a functional behavioral assessment (FBA) and implement a behavioral intervention plan (BIP) for the student before the behavior that resulted in the removal, the local district shall convene an ARD committee meeting to develop an assessment plan. As soon as practicable after developing the plan and completing the assessments, the ARD committee shall meet to develop appropriate behavioral interventions to address that behavior and shall implement those interventions.

If BIP Already In Place, Review It

  1. If the student already has a behavioral intervention plan, the ARD committee shall meet to review the plan and its implementation, and modify the plan and its implementation, as necessary, to address the behavior.

Subsequent Removals That Are Not A Change In Placement

  1. If the student is subsequently removed and that removal is not a change in placement, the ARD committee does not have to meet to review the behavioral intervention plan unless the ARD committee believes that modifications are needed to the plan or the plan's implementation. If modification is deemed necessary, the committee shall meet to modify the plan and its implementation.

20 U.S.C. 1415(k)(1)(F): 34 CFR 300.530(f)

Continued Services on Eleventh Day

After a TSBVI student has been removed from his or her current placement for more than ten school days in the same school year, during any subsequent days of removal, TSBVI shall provide the services necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set in the student's IEP.  20 U.S.C. 1415(k)(1)(D); 34 CFR 300.530(d)(4)

NO CHANGE IN PLACEMENT

If the removal does not constitute a change in placement, TSBVI personnel, in consultation with the student’s teachers, determine the extent to which such services are necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student's IEP.

300.530(d)(4)

SPECIAL CIRCUMSTANCES:  WEAPONS / DRUG OFFENSES

TSBVI personnel may immediately assign a student to an appropriate interim alternative educational setting in the resident school district, pending determination by the ARD committee, regardless of whether the behavior is a manifestation of disability, but for not more than 45 calendar days if:

  1. The student carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of TEA, a school district, or TSBVI; or
  2. The student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of TEA, a school district or TSBVI; or
  3. Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of TEA, a school district or TSBVI.

20 U.S.C. 1415(k)(1)(g); 34 CFR 300.530(g)

Weapon

In this policy, "weapon" means a weapon, device, instrument, material, or substance that is used for, or is readily capable of, causing death or serious bodily injury, but does not include a pocket knife with a blade of less than 2½ inches in length.

20 U.S.C. 1415(k)(1)(g); 18 U.S.C. 930(g)(2); 34 CFR 300.530(g); Education Code 37.007(a)(1) [see FNCG]

Controlled Substance

"Controlled Substance" means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act.  21 U.S.C. 812(c); 34 CFR 300.530(i)(1)

Illegal Drug

"Illegal Drug" means a controlled substance, but does not include a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any authority under that Act or any other provision of federal law.  21 U.S.C. 801 et.seq.

Serious Bodily Injury

“Serious Bodily Injury” means a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental capacity.  18 U.S.C. 1365(h)(3)

20 U.S.C. 1415(k)(G)(7); 34 CFR 300.530(g),(h),(i)

REMOVAL BY A HEARING OFFICER

A hearing officer may order a change in placement of a TSBVI student to an appropriate interim alternative educational setting for not more than 45 calendar days, if the hearing officer, in an expedited due process hearing:

  1. Determines that TSBVI has demonstrated beyond a preponderance of the evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or others;
  2. Considers the appropriateness of the student's current placement;
  3. Considers whether TSBVI has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services; and
  4. Determines that the interim alternative educational setting, which is proposed by school personnel who have consulted with the student's special education teacher, meets the criteria described below at Criteria for the Alternative Setting.

20 U.S.C. 1415(k)(2)(10); 34 CFR 300.536

Criteria for the Alternative Setting

Any interim alternative education setting in which a student with a disability is placed as a result of conduct described above at Weapons/Drug Offenses, or that was ordered by a Hearing Officer, shall be determined by the ARD committee.  The setting shall be selected so as to enable the student to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the student's current IEP, that will enable the student to meet the goals set out in that IEP.  The setting shall also include services and modifications designed to address the behavior that caused the student to be placed in the alternative setting so that the behavior does not recur.

20 U.S.C. 1412(a)(5); 34 CFR 300.116

REMOVAL THAT IS A CHANGE IN PLACEMENT

If a disciplinary action involving (1) a 45-day removal for weapons or drugs or (2) a change in placement, is contemplated for a TSBVI student who has engaged in other behavior that violated any rule or code of conduct of TSBVI, TSBVI shall:

  1. Not later than the date on which the decision to take the disciplinary action is made, notify the student's parents of the decision and of all procedural safeguards [see EHBAD];
  2. Notify local district to conduct a functional behavioral assessment and develop a behavioral intervention plan, or if it has already done so, review the existing behavior intervention plan, as described above; and
  3. Immediately, if possible, but in no case later than ten school days after the date on which the decision to take that action is made, the local district will conduct a review of the relationship between the student's disability and the behavior subject to disciplinary action.

MANIFESTATION DETERMINATION REVIEW

The local review shall be conducted within 10 school days by the resident school district ARD committee and other qualified personnel.  In carrying out the review, before the ARD committee and other qualified personnel may determine that the student's behavior was not a manifestation of the student's disability, the ARD committee and other qualified personnel must:

  1. First consider, in terms of the behavior subject to disciplinary action, all relevant information, including:
    1. Evaluation and diagnostic results, including such results or other relevant information supplied by the parents;
    2. Observations of the student;
    3. The student's IEP and placement; and
  2. Then determine that:
    1. In relationship to the behavior subject to disciplinary action, the student's IEP and placement were appropriate, and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the student's IEP and placement;
    2. The student's disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to the disciplinary action; and
    3. The student's disability did not impair the ability of the student to control the behavior subject to disciplinary action.; and then
  3. Determine whether the conduct in question was:
    1. Caused by or had a direct and substantial relationship to the student’s disability; or
    2. The direct result of the district’s or TSBVI’s failure to implement the IEP.

If TSBVI, the parent and relevant members of the ARD Committee determine that either of the above is applicable, the conduct shall be determined to be a manifestation of the student’s disability.

20 U.S.C. 1415(k)(1)(E); 34 CFR 300.530.(e)

CONDUCT NOT RELATED TO DISABILITY

If the result of the manifestation determination (described above) is that the student's behavior was not a manifestation of the student's disability, the disciplinary procedures may be applied to the student, except that the local district shall still provide services, as described below.

20 U.S.C. 1415(k)(1)(C), (k)(2); 34 CFR 300.530(c)

Continued Services – Change in Placement (Removal)

If the student is suspended, expelled, or removed from his or her current placement for more than ten school days, and the removal constitutes a change in placement, the student's ARD committee shall:

  1. Determine the services and interim alternative placement necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student's IEP;
  2. Provide student, as appropriate, a functional behavior assessment and behavioral intervention services and modifications that are designed to address the behavior so that it does not reoccur.

20 U.S.C.1415(k)(1)(C),(k)(2); 1413(a)(1); 34 CFR 300. 530(c),(d)(1)

TRANSFER OF RECORDS

If TSBVI initiates disciplinary procedures applicable to students without disabilities, TSBVI shall ensure that the student's special education and disciplinary records are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action.

20 U.S.C. 1414(d)(2)(A)-(C); 34 CFR 300.323(g)

Please see local school district policies concerning the following:

  • Appeals
  • Placement During Appeals
  • Proposed Change After Interim Placement
  • Expedited Hearing

Reporting Crimes

Federal law does not prohibit TSBVI from reporting a crime committed by a student with a disability to appropriate authorities.  If TSBVI reports a crime committed by a student with a disability, TSBVI shall ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the appropriate authorities.  TSBVI may transmit records only to the extent permitted by the Family Educational Rights and Privacy Act (FERPA).

20 U.S.C. 1415(k)(6); 34 CFR 300.535 [See FL]

BEHAVIOR MANAGEMENT TECHNIQUES

It is the policy of Texas to treat all students with dignity and respect, including students with disabilities who receive special education services.  Any behavior management technique and/or discipline management practice must be implemented in such a way as to protect the health and safety of the student and others.  No discipline management practice may be calculated to inflict injury, cause harm, demean, or deprive the student of basic human necessities.  Education Code 37.0021(a); 19 TAC 89.1053(j)

USE OF CONFINEMENT, RESTRAINT, SECLUSION, AND TIME-OUT

A TSBVI student may not be confined in a locked box, locked closet, or other specially designed locked space as either a discipline management practice or a behavior management technique.

"Restraint" means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of a student's body.

"Seclusion" means a behavior management technique in which a student is confined in a locked box, locked closet, or locked room that:

  1. Is designed solely to seclude a person; and
  2. Contains less than 50 square feet of space.

"Time-out" means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting:

  1. That is not locked, and
  2. From which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.

19 TAC 89.1053(b)(3)

A School employee or volunteer or an independent contractor of the School may not place a student in seclusion.

Education Code 37.0021 and any rules or procedures adopted under Education Code 37.0021 do not apply to a peace officer, while performing law enforcement duties; juvenile probation, detention, or corrections personnel; or an educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of the School.  

Law Enforcement Duties

“Law enforcement duties” means activities of a peace officer relating to the investigation and enforcement of state criminal laws and other duties authorized by the Code of Criminal Procedure.

Education Code 37.0021(b)(4), (g); 19 TAC 89.1053(l), (m)

Education Code, 37.0021 does not prevent a student's locked, unattended confinement in an emergency situation while awaiting the arrival of law enforcement personnel if:

  1. The student possesses a weapon; and
  2. The confinement is necessary to prevent the student from causing bodily harm to the student or another person.

For these purposes, "weapon" includes any weapon described under Education code 37.007(a)(1). [See FNCG]

Education Code 37.0021

Restraint

A school employee, volunteer, or independent contractor may use restraint only in an emergency and with the following limitations:

  1. Restraint must be limited to the use of such reasonable force as is necessary to address the emergency.
  2. Restraint must be discontinued at the point at which the emergency no longer exists.
  3. Restraint must be implemented in such a way as to protect the health and safety of the student and others.
  4. Restraint must not deprive the student of basic human necessities.

"Emergency" means a situation in which a student's behavior poses a threat of:

  1. Imminent, serious physical harm to the student or others; or
  2. Imminent, serious property destruction.

19 TAC 89.1053(b)(1)-(2)

Training

Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements:

  1. A core team of personnel at the School must be trained in the use of restraint, and the team must include a School administrator or designee and any general or special education personnel likely to use restraint.
  2. Personnel called upon to use restraint in an emergency and who have not received prior training must receive training within 30 school days following the use of restraint. Training on the use of restraint must include prevention and de-escalation techniques and provide alternatives to the use of restraint.
  3. All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of restraint.

Documentation

In a case in which restraint is used, school employees, volunteers, or independent contractors shall implement the following documentation requirements:

  1. On the day restraint is utilized, the campus administrator or designee must be notified verbally or in writing regarding the use of restraint.
  2. On the day restraint is utilized, a good faith effort shall be made to verbally notify the parent(s) regarding the use of restraint.
  3. Written notification of the use of restraint must be placed in the mail or otherwise provided to the parent within one school day of the use of restraint.
  4. Written documentation regarding the use of restraint must be placed in the student's special education eligibility folder in a timely manner so the information is available to the ARD committee when it considers the impact of the student's behavior on the student's learning and/or the creation or revision of the behavioral intervention plan (BIP).
  5. Written notification to the parent(s) and documentation to the student's special education eligibility folder shall include the following:
    1. Name of the student;
    2. Name of the staff member(s) administering the restraint;
    3. The date of the restraint and the time the restraint began and ended;
    4. Location of the restraint;
    5. Nature of the restraint;
    6. A description of the activity in which the student was engaged immediately preceding the use of restraint;
    7. The behavior that prompted the restraint;
    8. The efforts made to de-escalate the situation and alternatives to restraint that were attempted; and
    9. Information documenting parent contact and notification.

For purposes of 19 TAC 89.1053(c), (d), (e), restraint does not include the use of:

  1. Physical contact or appropriately prescribed adaptive equipment to promote normative body positioning and/or physical functioning;
  2. Limited physical contact with a student to promote safety (e.g., holding a student's hand), prevent a potentially harmful action (e.g., running into a street), teach a skill, redirect attention, provide guidance to a location, or provide comfort;
  3. Limited physical contact or appropriately prescribed adaptive equipment to prevent a student from engaging in ongoing, repetitive self-injurious behaviors, with the expectation that instruction will be reflected in the IEP as required by 34 CFR 300.324(a)(2)(i) to promote learning and reduce and/or prevent the need for ongoing intervention; or
  4. Seat belts and other safety equipment used to secure students during transportation.

TSBVI shall report electronically to TEA, in accordance with standards provided by Commissioner rule, information relating to the use of restraint by a peace officer performing law enforcement duties on school property or during a school-sponsored activity.  The report must be consistent with the requirements adopted by Commissioner rule for reporting the use of restraint involving students with disabilities.

Education Code 37.0021(i); 19 TAC 1053(f)

Time-Out

A school employee, volunteer, or independent contractor may use time-out with the following limitations:

  1. Physical force or threat of physical force shall not be used to place a student in time-out.
  2. Time-out may only be used in conjunction with an array of positive behavior intervention strategies and techniques and must be included in the student's IEP and/or BIP if it is utilized on a recurrent basis to increase or decrease targeted behavior.
  3. Use of time-out shall not be implemented in a fashion that precludes the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.

19 TAC 89.1053(g)

Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements:

  1. Staff who implement time-out based on requirements established in a student's IEP and/or BIP must be trained in the use of time-out.
  2. Newly-identified personnel called upon to implement time-out based on requirements established in a student's IEP and/or BIP must receive training in the use of time-out within 30 school days of being assigned the responsibility for implementing time-out.
  3. Training on the use of time-out must be provided as part of a program which addresses a full continuum of positive behavioral intervention strategies, and must address the impact of time-out on the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.
  4. All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of time-out. 7

19 TAC 89.1053(h)

Necessary documentation or data collection regarding the use of time-out, if any, must be addressed in the IEP or BIP.  The ARD committee must use any collected data to judge the effectiveness of the intervention and provide a basis for making determinations regarding its continued use.

19 TAC 89.1053(i)

Student Safety

Any behavior management technique and/or discipline management practice must be implemented in such a way as to protect the health and safety of the student and others.  No discipline management practice may be calculated to inflict injury, cause harm, demean, or deprive the student of basic human necessities.

Beginning with the 2003-04 school year, with the exception of actions covered under 19 TAC 89.1053(f), cumulative data regarding the use of restraint must be reported through the Public Education Information Management System (PEIMS).

19 TAC 89.1053

Adopted:         1/24/02

Amended:       5/28/03, 3/26/04, 1/26/18, 11/15/18

Reviewed: