Chapter 37 of the Texas Instruction Code outlines the parameters for assigning a educatee to the Disciplinary Alternative Instruction Program, or "DAEP." For those unfamiliar with Texas public schoolhouse discipline, many school districts operate an alternative DAEP campus that is separate and autonomously from the pupil's usual campus. DAEP campuses provide a more structured environs for students who have committed an offense in violation of the Student Code of Behave, which is a district-specific certificate that more explicitly details when a pupil may exist sent to DAEP and for how long.

Section 37.009 outlines the procedures that a schoolhouse must follow when assigning a student to the DAEP. Showtime, "the campus beliefs coordinator or other appropriate ambassador shall schedule a conference among the campus behavior coordinator or other advisable administrator, a parent or guardian of the pupil, the teacher removing the student from class, if any, and the student." Tex. Educ. Code § 37.009(a). This is ordinarily referred to equally an "informal conference." At this meeting, the student is entitled to written or oral notice of the reasons for removal to the DAEP, an caption of the footing for the removal, and an opportunity to reply. Later on the informal conference, the appropriate administrator must consider four mitigating factors:

  • Intent or lack of intent;
  • Self-defense;
  • Prior discipline history; and
  • Whether the student has a disability that substantially impairs his/her chapters to appreciate the wrongfulness of his/her bear.

If these factors exercise not apply to salve the student of the consequences of his or her actions, the administrator then orders the student removed to the DAEP for a fourth dimension menstruation consistent with the Student Lawmaking of Conduct.

The higher up steps are dictated by law and are not optional. All the same, Section 37.009 then contains two curt phrases that tin can accept a meaning bear on on commune policy:

  • "If school district policy allows a pupil to appeal to the board of trustees or the board'south designee a decision of the campus behavior coordinator or other appropriate administrator, other than an expulsion under Section 37.007, the conclusion of the board or the lath'southward designee is terminal and may not be appealed."   §37.009(a)
  • "If a student's placement in a disciplinary culling education programme is to extend across 60 days or the end of the next grading flow, whichever is earlier, a student'southward parent or guardian is entitled to detect of and an opportunity to participate in a proceeding earlier the lath of trustees of the school district or the board's designee, equally provided past policy of the board of trustees of the district. Any determination of the lath or the board's designee nether this subsection is concluding and may not exist appealed." §39.009(b)

Read together, these sections suggest that an entreatment procedure to the lath or it's designee is just legally required if the pupil's placement will extend beyond 60 days or to the terminate of the side by side grading period; if the placement is shorter, no entreatment is required.

Just a closer reading shows that a school district would exist better off adopting an appeals process in all circumstances in which a educatee is assigned to the DAEP, regardless of the length of placement. This is considering 37.009(a) and 37.009(b) conspicuously state that, if the student is given an opportunity to appeal to the lath or its designee, the outcome is not appealable. The Texas Pedagogy Agency and Texas courts have consistently applied this linguistic communication to mean that a educatee whose placement in DAEP is upheld on appeal cannot appeal his or her placement to the TEA or to a court. Meet Hankins v. P.H., one S.W.3d 352, 354 (Tex. App—Corpus Christi 1999, pet. denied) ("disciplinary actions involving mere placement in an alternative education program are non reviewable by a courtroom of law."); Flour Bluff Indep. Sch. Dist. v. R.S., No. thirteen-05-623-CV, 2006 Tex. App. LEXIS 3031, *1-2 (Tex. App.—Corpus Christi Apr. 13, 2006, no pet.) (trial courtroom had no jurisdiction to hear cheerleader'southward challenge to DAEP placement for possession of Hydrocodone pill); Parent, Individually and every bit Adjacent Friend of Student 5. Wichita Falls Indep. Sch. Dist., Docket No. 003-R5-0906 (Comm'r Educ. 2009) (citing Tex. Educ. Code § seven.057(e)(2)) ("If a complaint is about a student disciplinary action, the Commissioner lacks jurisdiction.").

Nonetheless, the converse is likely true every bit well—if a schoolhouse commune'due south policies do not provide a student the right to entreatment a DAEP placement to the school board or designee, then the placement may very well be appealable to the TEA and thereafter to a court of constabulary. The commune can thus substantially reduce its risk of appeals to the TEA and litigation by alteration Schoolhouse Lath Policy FOC (LEGAL) to allow a student to appeal his or her DAEP placement to the school lath or board'south designee. Many districts afford even more than due process, permitting an appeal to an ambassador (the board's designee) and and so a subsequent entreatment to the school board every bit follows:

STEP 1:           Breezy conference and DAEP imposed by campus ambassador;

Pace 2:           Entreatment to the Board's designee, such as an assistant superintendent;

Step 3:           Entreatment to the school board.

If these steps are followed, the TEA would non have jurisdiction to hear a educatee'south entreatment, and virtually Texas courts would decline to assert jurisdiction over the example. This tin provide districts a articulate path out of litigation and administrative appeals over disciplinary decisions.

To see if your district'due south policy safeguards against appeals to the TEA or to a court, read your district'southward version of FOC (LOCAL) to encounter if information technology provides for an appeal of a DAEP placement in all circumstances, or only when the placement exceeds threescore days or the cease of a grading catamenia.

Please proceed in listen that, even if a district provides an appeals procedure, the pupil must remain in the DAEP setting while the entreatment is pending. Further, exist enlightened that the above process may differ for students who need or receive special education and related services. And finally, the above process is non a aureate ticket out of courtroom—savvy students' attorneys may be able to find constitutional claims to avert Chapter 37's jurisdictional limitations—simply a sound FOC (LOCAL) policy will certainly provide a substantial obstruction in a plaintiff's path.

ARBH advises school district clients in drafting board policies to minimize legal risks and assist schools with providing the best education for all students. Delight contact your commune's counsel if you need assistance reviewing or revising your policies, including FOC (LOCAL).

Prepared by the offices of Richard Abernathy, this commodity should not exist construed as legal communication related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will exist the ground for activity or inaction in any specific circumstance. Viewing these materials does non create an attorney-client relationship betwixt Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader's institution. For circumstance-specific legal advice, please directly contact a licensed attorney.