Students have limited first amendment rights on campus. Under Texas law, schools can suspend student?s for up to three days for almost any reason. The Constitution requires that prior to a student being suspended, the student should be informed of the alleged misconduct and be given a chance to explain. Texas law doesn?t require schools to follow the constitutionally required procedure. The lack of required due process under Texas law is unconstitutional but a school district?s student code of conduct may provide for it. The only requirement under Texas law is that the school make some minimum efforts to contact the student?s parents or guardian, but these individuals are provided no involvement in the decision-making process. Therefore, it depends on each school district.
WHAT CONDUCT CAN RESULT IN OUT-OF-SCHOOL SUSPENSION (OSS)?
Probably just about anything.
The board of trustees of each Independent School District (ISD) must adopt and make available a Student Code of Conduct (SCOC). The SCOC must say what behavior could cause a student to face disciplinary action. Your ISDs code is probably available online and may be found with a simple search.
In the case of Needville ISD, a student may face a three day out-of-school suspension for failure to ?comply with directives given by school personnel (insubordination)?.
Restricted behavior can interference with free speech. The U.S. Supreme Court stated in Tinker v. Des Moines (1969), that students do not shed their constitutional rights at the schoolhouse gate however a student?s First Amendment rights are not without limits while on school grounds. The Court held speech which ?materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.? Therefore, it cannot be said that a student cannot face consequences when exercising what they may feel is their right to free speech.
The SCOC must say what disciplinary action may be taken based on the alleged misconduct. Some behavior will come with mandatory disciplinary actions and others will be listed as possible display actions. Look for the words ?must? and ?may?. Once the school has determined what action they wish to take, there are no procedures they must follow.
The ISD?s SCOC should outline what behavior can result in OSS. OSS is always discretionary therefore the school can always choose not to take this type of disciplinary action.
The SCOC should list the factors and guidelines for determining, if, how or how long the student is disciplined. Regardless of the factors listed in the SCOC, the school must consider the following factors:
Whether or not the student acting in self-defense.
2. Intent or Lack of Intent
Whether or not the student?s conduct was intentional or was it an accident or mistake.
3. Disciplinary History
Whether or not the student has been in trouble before and, if so, what was the prior conduct and what disciplinary action was taken.
Whether or not the student has a disability that would substantially impair the student?s ability to understand their conduct was wrong.
Since there are no guaranteed procedural safeguards for a suspension, a student or parent may have no way of knowing if any of these factors were taken into consideration.
WHO CAN BE PLACED IN OSS?
Any student is subject to out-of-school suspension but be aware that there are greater restrictions when a school seeks to place students in out-of-school suspension who are below the third grade.
WHO CAN PLACE A STUDENT IN OSS?
The principal or other appropriate administrator may suspend a student who engages in conduct identified in the student code of conduct adopted under Texas Education Code Section 37.001 as conduct for which a student may be suspended.
HOW LONG CAN THE STUDENT BE SUSPENDED?
If the school elects this punishment, OSS cannot be longer than three (3) school days.
WHAT IS THE PROCESS FOR SUSPENDING A STUDENT?
Each ISD?s SCOC should be reviewed to determine if any procedures are provided for. Under Texas law there is not a formal procedure. First, a principal or other appropriate administrator must determine that a student has violated the student code of conduct. Second, the principal or other appropriate administrator msut decide to suspend the student which may be for up to three days. Then finally, the ?campus behavior coordinator?, the school principle, or other designee shall promptly notify a student’s parent or guardian if a student is placed into in-school or out-of-school suspension. The notification must be by:
(1) promptly contacting the parent or guardian by telephone or in person; and
(2) 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.
ARE TEXAS THREE DAY OUT-OF-SCHOOL SUSPENSION PROCEDURES CONSTITUTIONAL?
As lawyers most often say: It depends.
Constitutional Due Process Requirements
In Gross v. Lopez (1975), the U.S. Supreme Court held that when a state creates a public school system with mandatory attendance, the state cannot completely deprive the student of that property interest without due process of law. In Goss, the Supreme Court held that, at minimum, a student facing a 10?day suspension ?must be given some kind of notice and afforded some kind of hearing.? The Court also recognized that not only is a property interest at stack with regard to the student?s education but that a suspension on the student?s permanent record had the potential of seriously harming their reputation and affecting their future employment and education. However, the Court felt that the only notice and hearing that would normally be required is for the disciplinarian to informally discuss the alleged misconduct with the student soon after the misconduct occurred. The disciplinary should first inform the student of the alleged misconduct, the basis for the allegations and provide the student the opportunity to explain his or her version of the facts. This is all the due process that the Court found was necessary.
Texas is required to provide due process, but Texas law fails to require it.
As required under the Texas Constitution, the State has created a public school system with mandatory attendance which gives rise to a student property interest in the education as explained in Gross v. Lopez. This then requires some level of due process prior to a student being suspended. The Texas Education Code Chapter 37 which provides that an Independent School District must adopt a Student Code of Conduct that provides for which conduct can face disciplinary action and what that disciplinary action may be. What chapter 37 does not require is that the school district provide any level of due process prior to an out-of-school suspension of three days or less. Therefore, under Chapter 37, a school district can suspend a student for three days or less without informing the student of the alleged misconduct and allow the student to explain as required in Gross v. Lopez.
How does this apply to each specific Texas ISD?
Though Texas law does not require a school district to include the constitutionally required due process, a school district?s Student Code of Conduct might include it.
If you have any questions or would like to talk to one of the attorneys at Daly & Campbell, please contact us.. Understand that if you disagree with the law or how the law is applied to you or your child, there is always something that can be done.