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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:

The following are felony offenses listed in Title 5 of the Penal Code, Offenses Against the Person.

Section 19.02:  Murder

Section 19.03:  Capital Murder

Section 19.04:  Manslaughter

Section 19.05:  Criminally Negligent Homicide

Section 20.02:  Unlawful Restraint (if the person restrained was younger than 17 years of age, OR if the actor recklessly exposes the victim to a substantial risk of serious bodily injury, restrains an individual the actor knows is a public servant while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of official power or performance of an official duty, or the actor while in custody restrains any other person.)

Section 20.03:  Kidnapping

Section 20.04:  Aggravated Kidnapping

Section 20.05:  Smuggling Persons

Section 20.06:  Continuous Smuggling of Persons

Section 20A.02:  Trafficking of Persons

Section 21.02:  Continuous Sexual Abuse of Young Child or Children

Section 21.09:  Beastiality

Section 21.11:  Indecency with a Child

Section 21.12:  Improper Relationship between Educator and Student

Section 21.15:  Invasive Visual Recording

Section 21.16:  Unlawful Disclosure OR Promotion of Intimate Visual Material.

Section 21.17:  Voyeurism if the victim was younger than 14 years of age at the time of the offense.

Section 21.18:  Sexual Coersion

Section 22.01:  Assault (if against [1] a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official

power or performance of an official duty as a public servant; [2] a person the actor knows is a security officer [see Occupations Code 1702.002, 1702.221] while the person is performing a duty as a security officer; [3] a person who contracts with the government to perform a service at a correctional facility [see Penal Code 1.07(a)(14)] or a secure correctional or detention facility for juveniles [see Family Code 51.102(13), (14)]; and [4] under certain circumstances, if against a family member)

Section 22.011:  Sexual Assault

Section 22.02:  Aggravated Assault

Section 22.021:  Aggravated Sexual Assault

Section 22.04:  Injury to a Child, Elderly Individual, or Disabled Individual

Section 22.041:  Abandoning or Endangering a Child

Section 22.05:  Deadly Conduct (if the person knowingly discharges a firearm at or in the direction of one or more individuals or in the direction of a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied)

Section 22.07:  Terroristic Threat (if the actor threatens to commit any offense involving violence to any person or property with intent to:  [1] prevent or interrupt the occupation or use of a building, room, place, or conveyance if the prevention or interruption causes pecuniary loss to the owner of $1,500 or more [see Acts 2003, 78th Leg., Ch. 446, Sec. 1; compare Acts 2003, 78th Leg., Ch. 388, Sec. 2]; [2] cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; [3] place the public or a substantial group of the public in fear of serious bodily injury; or [4] influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision); or [5] Place any person in fear of imminent serious bodily injury if the actor knows the person is a peace officer or judge.

Section 22.08:  Aiding Suicide (if the conduct causes suicide or attempted suicide that results in serious bodily injury)

Section 22.09:  Tampering with Consumer Product

Section 22.11:   Harassment by Persons in Certain Facilities (including a secure correctional or detention facility, as defined in Family Code 51.02, operated by or under contract with a juvenile board or the Texas Youth Commission, and any other facility operated by or under contract with the TYC).

Adopted:         1/24/02

Amended:       11/19/04, 11/15/18

Reviewed:

GENERAL

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

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

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

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

STUDENTS YOUNGER THAN TEN 

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

MANDATORY EXPULSION

School Related

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

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

Education Code 37.007(a)

Exception

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

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

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

Education Code 37.007(k)(l)

Retaliation

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

Federal Firearms Offense

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

Exception

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

Provisions of Educational Services

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

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

Definitions

For the purposes of this provision:

School

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

Firearm

For the purposes of this provision, "firearm" means:

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

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

DISCRETIONARY EXPULSION

Threats

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

School-Related Conduct

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

Alcohol or Drugs

  1. Sells, gives, or delivers to another person, or possesses, uses, or is under the influence of any amount of:
  2. Marijuana or a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. section 801 et seq.; or
  3. A dangerous drug, as defined by Chapter 483, Health and Safety Code; or
  4. An alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code.

Volatile Chemicals

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

Assault on an Employee or Volunteer

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

Deadly Conduct

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

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

Conduct Within 300 Feet of School 

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

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

Education Code 37.007(b)(3)

Retaliation Against School Employee or Volunteer

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

Conduct Against Another Student

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

Bullying

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

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

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

minor.

Definitions

Bullying

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

Intimate Visual Material

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

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

Education Code 37.0052

Criminal Mischief

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

Breach of Computer Security

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

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

Education Code 37.007(b)(5)

Serious Misbehavior in DAEP

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

“Serious misbehavior” means:

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

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

Education Code 37.007(c), 37.010(b)

Property or Activities at Another District

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

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

Education Code 37.007(i)

EXPULSION PROCEEDINGS

Due Process

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

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

Notice

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

Hearing

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

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

Representative

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

Mitigating Factors

Before ordering the expulsion of a student, the Superintendent or the Principal must consider whether the student acted in self-defense, the intent or lack of intent at the time the student engaged in the conduct, the student’s disciplinary history, and whether the student has a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct, regardless of whether the decision concerns a mandatory or discretionary action.

Education Code 37.009 (f)

TERM OF EXPULSION

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

Expulsion Beyond One Year

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

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

Education Code 37.009(h)

NOTICE OF EXPULSION ORDER

To Parent or Guardian

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

To Court

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

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

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

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

To Juvenile Board

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

To Staff

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

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

Education Code 37.007(g)

Completion of Proceeding Upon Withdrawal

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

Additional Proceedings

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

Appeals

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

RESTRICTIONS ON COURT ORDERS

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

LOCAL ISD's RESPONSIBILITY FOR EXPELLED STUDENT

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

Education Code 37.007

Adopted:         11/7/80

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

Reviewed:

EMERGENCY PLACEMENT

DAEP

The Principal or the Principal's designee is not prohibited from ordering the immediate placement of a student in a disciplinary alternative education program (DAEP) if the principal or designee reasonably believes that the student's behavior is so unruly, disruptive, or abusive that it seriously interferes with a teacher's ability to communicate effectively with students in class, with the ability of students to learn, or with the operation of school or a school-sponsored activity.

Expulsion

The principal or designee may order the immediate expulsion of a student if the principal or designee reasonably believes that such action is necessary to protect persons or property from imminent harm.

Procedure

At the time of an emergency placement or an emergency expulsion, the student shall be given oral notice of the reason for the action.  The reason must be a reason for which placement in a DAEP or expulsion may be made on a nonemergency basis.  Within a reasonable time, but not later than the tenth day after the placement or expulsion, the student shall be accorded the appropriate due process required for a removal or an expulsion.  [See FOA, FOC, and FOD]

Students with Disabilities

If the student is a student with disabilities who received special education services, the emergency placement is subject to federal law and regulation and must be consistent with the consequences that would apply under Education Code Chapter 37, Subchapter A, to a student without a disability. [See FOF]

Immunity

A principal or designee is not liable in civil damages for an emergency placement.

Education Code 37.019

TITLE 5 FELONY OR AGGRAVATED ROBBERY

The Board or designee (Principal), after an opportunity for a hearing may expel a student and elect to place the student in an alternative setting as provided below if:0)

  1. The student has been arrested for, charged with, referred to a juvenile court for, received deferred prosecution for, received probation for, received deferred adjudication for, found by a court or jury to have engaged in, or been convicted of, conduct defined as a felony offense in Penal Code, Title 5 [see FOC(LEGAL) at TITLE 5 FELONIES] or the felony offense of aggravated robbery under Penal Code 29.03; and
  2. The board or the board’s designee determines that the student’s presence in the regular classroom:
    1. Threatens the safety of other students or teachers;
    2. Will be detrimental to the educational process; or
    3. Is not in the best interests of the district's students.

The Board or Principal may expel the student and order the placement regardless of:0)

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

[See Student Code of Conduct]

Alternative Setting

The student must be placed in:

  1. A juvenile justice alternative education program (JJAEP), if the local school district is located in a county that operates a JJAEP or the local school district contracts with the juvenile board of another county for the provision of a JJAEP; or
  2. A DAEP.

Duration of Placement

Notwithstanding Education Code Section 37.009(c) or (d) (placements beyond one year) or any other provision of Education Code Chapter 37, Subchapter C, the student is subject to the placement until:0)

  1. The student graduates from high school;
  2. The charges are dismissed or reduced to a misdemeanor offense; or
  3. The student completes the term of the placement or is assigned to another program.

These provisions continue to apply if the student transfers to another district in the state.

The student is entitled to periodic review [see FOC at 120-DAY REVIEW OF STATUS].

Any decision of the Board or Principal under the above provisions is final and may not be appealed.

The above provisions apply notwithstanding any other provision of Education Code Chapter 37, Subchapter A, except that Section 37.007 (expulsion) prevails to the extent of a conflict.

Education Code 37.0081

Adopted: 9/27/96
Amended:  1/24/02, 11/19/04, 1/26/18
Reviewed: