Chapter 37 of the Texas Education Code outlines the parameters for assigning a student to the Disciplinary Alternative Education Program, or “DAEP.” For those unfamiliar with Texas public school discipline, many school districts operate an alternative DAEP campus that is separate and apart from the student’s usual campus. DAEP campuses provide a more structured environment for students who have committed an offense in violation of the Student Code of Conduct, which is a district-specific document that more explicitly details when a student may be sent to DAEP and for how long.

Section 37.009 outlines the procedures that a school must follow when assigning a student to the DAEP. First, “the campus behavior coordinator or other appropriate administrator shall schedule a conference among the campus behavior coordinator or other appropriate administrator, a parent or guardian of the student, the teacher removing the student from class, if any, and the student.” Tex. Educ. Code § 37.009(a). This is commonly referred to as an “informal conference.” At this meeting, the student is entitled to written or oral notice of the reasons for removal to the DAEP, an explanation of the basis for the removal, and an opportunity to respond. After 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 capacity to appreciate the wrongfulness of his/her conduct.

If these factors do not apply to relieve the student of the consequences of his or her actions, the administrator then orders the student removed to the DAEP for a time period consistent with the Student Code of Conduct.

The above steps are dictated by law and are not optional. However, Section 37.009 then contains two short phrases that can have a significant impact on district policy:

  • “If school district policy allows a student to appeal to the board of trustees or the board’s designee a decision of the campus behavior coordinator or other appropriate administrator, other than an expulsion under Section 37.007, the decision of the board or the board’s designee is final and may not be appealed.”   §37.009(a)
  • “If a student’s placement in a disciplinary alternative education program is to extend beyond 60 days or the end of the next grading period, whichever is earlier, a student’s parent or guardian is entitled to notice of and an opportunity to participate in a proceeding before the board of trustees of the school district or the board’s designee, as provided by policy of the board of trustees of the district. Any decision of the board or the board’s designee under this subsection is final and may not be appealed.” §39.009(b)

Read together, these sections suggest that an appeal process to the board or it’s designee is only legally required if the student’s placement will extend beyond 60 days or to the end of the next grading period; if the placement is shorter, no appeal is required.

But a closer reading shows that a school district would be better off adopting an appeals process in all circumstances in which a student is assigned to the DAEP, regardless of the length of placement. This is because 37.009(a) and 37.009(b) clearly state that, if the student is given an opportunity to appeal to the board or its designee, the outcome is not appealable. The Texas Education Agency and Texas courts have consistently applied this language to mean that a student whose placement in DAEP is upheld on appeal cannot appeal his or her placement to the TEA or to a court. See Hankins v. P.H., 1 S.W.3d 352, 354 (Tex. App—Corpus Christi 1999, pet. denied) (“disciplinary actions involving mere placement in an alternative education program are not reviewable by a court of law.”); Flour Bluff Indep. Sch. Dist. v. R.S., No. 13-05-623-CV, 2006 Tex. App. LEXIS 3031, *1-2 (Tex. App.—Corpus Christi Apr. 13, 2006, no pet.) (trial court had no jurisdiction to hear cheerleader’s challenge to DAEP placement for possession of Hydrocodone pill); Parent, Individually and as Next Friend of Student v. Wichita Falls Indep. Sch. Dist., Docket No. 003-R5-0906 (Comm’r Educ. 2009) (citing Tex. Educ. Code § 7.057(e)(2)) (“If a complaint is about a student disciplinary action, the Commissioner lacks jurisdiction.”).

However, the converse is likely true as well—if a school district’s policies do not provide a student the right to appeal 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 law. The district can thus substantially reduce its risk of appeals to the TEA and litigation by amending School Board Policy FOC (LEGAL) to allow a student to appeal his or her DAEP placement to the school board or board’s designee. Many districts afford even more due process, permitting an appeal to an administrator (the board’s designee) and then a subsequent appeal to the school board as follows:

STEP 1:           Informal conference and DAEP imposed by campus administrator;

STEP 2:           Appeal to the Board’s designee, such as an assistant superintendent;

STEP 3:           Appeal to the school board.

If these steps are followed, the TEA would not have jurisdiction to hear a student’s appeal, and most Texas courts would decline to assert jurisdiction over the case. This can provide districts a clear path out of litigation and administrative appeals over disciplinary decisions.

To see if your district’s policy safeguards against appeals to the TEA or to a court, read your district’s version of FOC (LOCAL) to see if it provides for an appeal of a DAEP placement in all circumstances, or only when the placement exceeds 60 days or the end of a grading period.

Please keep in mind that, even if a district provides an appeals process, the student must remain in the DAEP setting while the appeal is pending. Further, be aware that the above process may differ for students who need or receive special education and related services. And finally, the above process is not a golden ticket out of court—savvy students’ attorneys may be able to find constitutional claims to avoid Chapter 37’s jurisdictional limitations—but a sound FOC (LOCAL) policy will certainly provide a substantial obstacle 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. Please contact your district’s counsel if you need assistance reviewing or revising your policies, including FOC (LOCAL).

 

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice 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 be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between 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.