STUDENTS: DISCIPLINE

STUDENTS: DISCIPLINE [LAW]

1. Gun-Free Schools Act

In accordance with the Gun-Free Schools Act, the open-enrollment charter school shall expel, from the student’s regular program, for a period of one (1) year, any student who is determined to have brought a firearm, as defined by federal law, to school. The School Director 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.

20 U.S.C. § 7151; Tex. Educ. Code §§ 12.104(b)(1), 37.007(e).

For purposes of this provision, “firearm” means:

A. 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;

B. The frame or receiver of any such weapon;

C. Any firearm muffler or firearm silencer;

D. Any destructive device. “Destructive Device” means any explosive, incendiary, or poison gas bomb, grenade, rocket having a propellant charge of more than four (4) 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.

2. The governing body of the charter school shall adopt a Code of Conduct. The Code of Conduct shall establish

A. Standards of behavior;

B. Possible consequences;

C. Due process procedures with respect to expulsion.

3. A final decision of the governing body, with respect to actions taken under the Code of Conduct, may not be appealed.

Tex. Educ. Code § 12.131.

4. Due Process

The school shall not expel or suspend a student without providing procedural safeguards satisfying the due process clause, including a notice of the charges and a hearing as soon as practicable. [See Students: Discipline [Policy]].

Goss v. Lopez, 95 S.Ct. 729 (1975); 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).

5. Notice of Expulsion

The school shall notify the school district in which the student resides within three (3) business days of any action expelling the student.

19 Tex. Admin. Code § 100.1211(c).

6. Student With a Disability

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

Tex. Educ. Code §§ 12.104(b)(2)(J), 37.0021(a).

A. Definitions

(1) “Restraint” – means the use of physical force or a mechanical device to restrict the free movement of all or a portion of a student’s body. The rules specifically exclude certain acts from the definition of restraint:

(a) Physical contact or appropriately prescribed adaptive equipment to promote normative body positioning and/or physical functioning;

(b) Limited physical contact with a student to promote safety, teach a skill, or provide comfort;

(c) Limited physical contact or appropriately prescribed adaptive equipment to prevent a student from engaging in ongoing, repetitive self injurious behaviors; or

(d) Seat belts and other safety equipment used to secure students during transportation.

Tex. Educ. Code §§ 12.104(b)92)(J), 37.0021(b); 19 Tex. Admin. Code § 89.1053(f).

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

(a) Is designed solely to seclude a person; and

(b) Contains less than 50 square feet of space.

(3) “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:

(a) That is not locked; and

(b) From which the student is not physically prevented from leaving.

Tex. Educ. Code §§ 12.104(b)(2)(J), 37.0021(b).

B. Prohibition on Seclusion

(1) A school employee or volunteer, or an independent contractor of the school may not place a student into seclusion.

Tex. Educ. Code §§ 12.104(b)(2)(J), 37.0021(c).

(2) However, the Texas Education Code does not prevent a student’s locked, unattended confinement in an emergency situation while awaiting the arrival of law enforcement personnel if:

(a) The student possesses a weapon; and

(b) The confinement is necessary to prevent the student from causing bodily harm to the student or another person.

(i) For these purposes, “weapon” includes the following:

(1) A firearm as defined by § 46.01(3), Penal Code;

(2) An illegal knife as defined by § 46.01(6), Penal Code, or by local policy;

(3) A club as defined by § 46.01(1), Penal Code; or

(4) A weapon listed as a prohibited weapon under § 46.05, Penal Code.

Tex. Educ. Code §§ 12.104(b)(2)(J), 37.0021(f), 37.007(a)(1).

C. Limitations on use of Restraint and Time-Outs

(1) Use of Restraint

School employees, volunteers, or independent contractors are authorized to use restraint in the event of an emergency and subject to the following limitations:

(a) Only reasonable force, necessary to address the emergency, may be used;

(b) The restraint must be discontinued at the point at which the emergency no longer exists;

(d) The student may not be deprived of basic human necessities.

19 Tex. Admin. Code § 89.1053(c).

(2) Restraint Training

Not later than April 1, 2003, a core team of personnel of the school must be trained in the use of restraint. The team must include a school administrator or designee and any general or special education personnel likely to use restraint. After April 1, 2003, personnel called upon to use restraint in an emergency and who have not received prior training must receive training within 30 school days following use of restraint. This training must include:

(a) Prevention and de-escalation techniques;

(b) Alternatives to the use of restraint; and

Tex. Educ. Code § 12.104(b)(2)(J), 37.0021(d); 19 Tex. Admin. Code § 89.1053(d).

(3) Restraint Documentation Requirements

When restraint is used, school personnel must:

(a) Notify the school administrator on the day restraint is used;

(b) Make a good faith effort to contact the student’s parents/guardians on the day restraint is used;

(c) Within one (1) day of the day restraint is used, the school must send written notification to the student’s parents/guardians that includes the following information:

(i) The student’s name;

(ii) Name of the staff member(s) administering the restraint;

(iii) The date of the restraint, and the time the restraint began and ended;

(iv) Location of the restraint;

(v) Nature of the restraint;

(vi) A description of the activity in which the student was engaged immediately preceding the use of the restraint;

(vii) The behavior prompting the restraint;

(viii) Any efforts made to de-escalate the situation and alternatives to restraint that were attempted; and

(ix) Information documenting parent/guardian contact and notifications.

(d) Place written documentation in the student’s special education eligibility folder in a timely manner.

19 Tex. Admin. Code § 89.1053(e).

(4) Use of Time-Out

School employees, volunteers, or independent contractors may use time-out subject to the following limitations:

(a) Physical force or the threat of physical force may not be used to place a student in time out;

(b) Time-out must be included in the student’s individualized education program (IEP) and/or behavioral intervention plan (BIP), and designed to increase or decrease a targeted behavior; and

(c) Time-out shall not be used in such a way that the student is precluded from participating in and progressing in the general curriculum and attaining the annual goals in the student’s IEP.

19 Tex. Admin. Code § 89.1053(g).

(5) Time-Out Training Requirements

Not later than April 1, 2003, general or special education personnel who implement time-out based on requirements of a student’s IEP or BIP must be trained in the use of time-out. Thereafter, newly identified personnel called upon to implement time-out as required by a child’s IEP or BIP must be trained in the use of time-out. Training on the use of time-out must:

(a) Be a part of a program which addresses a full continuum of positive behavioral intervention strategies;

(b) 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 goals specified in the student’s IEP; and

(c) Include current professionally-accepted practices and standards regarding behavior management and the use of time-out.

19 Tex. Admin. Code § 89.1053(h).

(6) Time-Out Documentation Requirements

The documentation required when time-out is used, if any, must be addressed in the student’s IEP or BIP.

19 Tex. Admin. Code § 89.1053(i).

D. Suspension/Expulsion Requirement

A student with a disability shall not be excluded from his/her current placement pending appeal to the board for more than 10 days without Admission, Review, and Dismissal (ARD) committee action to determine appropriate services in the interim. Pending appeal to a special education hearing officer, unless the school and parents agree otherwise, a student with a disability shall remain in the present education setting.

20 U.S.C. § 1415(k); 34 C.F.R. §§ 300.519, 300.520, 300.526(a), (b).