An Overview
Presented by Luis Echeverria
Staff Attorney
Disability Rights Texas
luise@disabilityrightstx.org; (210) 424 9645; (800) 252 9108
BALANCING SOCIETY’S INTERESTS
School Safety,
Order and Discipline:
Maintaining a safe
and secure school
environment.
14th Amendment
Section 1:
No state shall make or enforce
any law which shall abridge
the privileges or immunities
of citizens of the United
States; nor shall any state
deprive any person of life,
liberty, or property, without
due process of law; nor deny to
any person within its
jurisdiction the equal
protection of the laws.
The Rights of the Individual
ALL STUDENTS PLACED IN CORRECTIONAL FACILITIES
2011
2012
2013
Count
Percent
Count
Percent
Count
Percent
NON SPECIAL
EDUCATION
STUDENT
938
64.6%
788
62.3%
752
64.4%
SPECIAL
EDUCATION
STUDENT
513
35.4%
476
37.7%
416
35.6%
TOTALS
1,451
100.0%
1,264
100.0%
1,168
100.0%
TEXAS EDUCATION AGENCY
COUNTS OF STUDENTS AND DISCIPLINE ACTIONS BY DISCIPLINE ACTION GROUPINGS
PEIMS 2012-2013 DATA
STUDENT
GROUP
NUMBER
OF
ISS
ISS
ISS
OSS
OSS
OSS
DAEP
DAEP
DAEP
JJAEP
JJAEP
JJAEP
EXPUL
EXPUL
EXPUL
ACTIONS STUDENTS PERCENT ACTIONS STUDENTS PERCENT ACTIONS STUDENTS PERCENT ACTIONS STUDENTS PERCENT ACTIONS STUDENTS PERCENT
STUDENTS
ALL STUDENTS
5,205,659 1,391,63
549,305
10.55 503,167
248,266
4.77 102,663
81,104
1.56
2,916
2,819
0.05
915
893
0.02
4
AMERICAN INDIAN
20,803
5,316
2,212
10.63
1,797
848
4.08
387
307
1.48
N/A
N/A
N/A
N/A
N/A
N/A
185,818
10,300
5,664
3.05
2,926
1,900
1.02
641
536
0.29
25
25
0.01
N/A
N/A
N/A
667,346 350,032
123,473
18.50
169,120
77,906
11.67
25,833
19,766
2.96
621
601
0.09
181
176
0.03
2,672,106 703,653
277,099
10.37 251,562
124,559
4.66
53,457
42,286
1.58
1,673
1,609
0.06
473
459
0.02
OR ALASKA NAT
ASIAN
BLACK OR AFRICAN
AMERICAN
HISPANIC/LATINO
NATIVE
HAWAIIAN/OTHER
6,915
1,659
693
10.02
476
259
3.75
129
93
1.34
N/A
N/A
N/A
0
0
0
94,927
25,032
10,142
10.68
8,027
3,962
4.17
1,755
1,373
1.45
43
42
0.04
18
18
0.02
WHITE
1,557,744 295,281
129,897
8.34
69,243
38,820
2.49
20,438
16,723
1.07
536
524
0.03
232
229
0.01
FEMALE
2,531,067 419,396
181,603
7.17
136,117
74,648
2.95
25,472
21,058
0.83
574
562
0.02
154
151
0.01
2,674,592 971,877
367,577
13.74 367,034
173,606
6.49
77,168
60,026
2.24
2,342
2,257
0.08
759
740
0.03
499,289 213,468
76,884
15.40
99,836
44,186
8.85
18,538
14,182
2.84
531
509
0.10
144
140
0.03
3,232,832 1,183,42
409,385
12.66 476,500
202,061
6.25
95,337
64,169
1.98
2,817
2,214
0.07
881
662
0.02
324,940
14.39 349,452
160,137
7.09
76,697
59,095
2.62
2,235
2,158
0.10
621
605
0.03
PACIFIC
TWO OR MORE
RACES
MALE
SPECIAL ED.
ECON. DIS.
7
AT RISK
2,258,544 908,852
Key Findings in “Breaking School Rules”, a 2011 Report by the
Council of State Governments Justice Center
 Seventy–five percent (75%) of students with disabilities were suspended or expelled at
least once. Students with disabilities (particularly those with emotional disabilities) were
suspended and/or expelled at higher rates than other groups of students
 Students (both disabled and non-disabled) who were suspended and/or expelled were
three times more likely to be involved in the juvenile justice system the subsequent year
than students not disciplined
 Students (both disabled and non-disabled) suspended and/or expelled had a much
higher grade retention (repeating a grade level) and drop-out rate than students not
suspended
 Ninety-seven percent (97%) of all disciplinary actions (involving suspensions,
expulsions, and DAEP placements) of students for violations of the student code of
conduct were not required but were [discretionary and] still imposed by local school
districts. Only three percent (3%) of all disciplinary infractions involved mandatory
suspensions and/or expulsions

“Only one out of every five students referred to DAEP in Texas is removed because of serious offenses
specified in the Texas Educ. Code (Ch. 37). Eighty percent (80%) of students continue to be referred to
DAEPs for violations of far less serious offenses included in local district codes of conduct.” Intercultural
Development Research Association: Disciplinary Alternative Education Programs in Texas, a 2009 Update. p. 10 (2009)
Other key findings in “Addressing the Out-of-School Suspension
Crisis – A Policy Guide for School Board Members”, a 2013 Report
by the National School Board Association
 Nationally, students with disabilities are suspended at twice the rate of their
non-disabled peers. Students with disabilities are also more likely than other
students to be suspended more than once in a school year
 Students with disabilities’ high suspension rates raise serious questions as to
whether schools are punishing students for behavior that is related to their
disability and whether schools are appropriately addressing these students’
individualized needs
 Discipline practices impact students with disabilities more than other groups
and contributes to these students missing out on important instructional time
as a result and are thus at a greater risk of reduced educational opportunities as
well as dropping out from school
Key Statements in “Future Trends in State Courts: Recognizing and
Combatting the School to Prison Pipeline in Texas”, a 2012 Report by the
National Center for State Courts
 As cited in other sources as well, the single greatest predictor in determining future
involvement with the juvenile justice system is whether the student has a history of
disciplinary referrals at school
 Known as the “School to Prison Pipeline”, the pattern essentially refers to the trend that
“school discipline serves as a gateway to the juvenile justice and adult criminal justice
systems”
In Texas, one-third (1/3) of all youth in a locked-down facility have already dropped out of school
 In Texas, more than eighty percent (80%) of adult prison inmates are school dropouts

 Of the one million students (disabled and non-disabled) studied in Texas (as per the
Report, “Breaking School Rules”, by the Council of State Governments Justice Center),
nearly sixty percent (60%) were suspended or expelled at least once between 7th and 12th
grade, and fifteen percent (15%) received 11 or more suspensions or expulsions during
that same period

The Honorable Wallace B. Jefferson, Chief Justice of the Supreme Court of Texas, stated in his 2011 State of the
Judiciary Speech: “Charging kids with criminal offenses for low-level behavior issues exacerbates the problem.
Among those suspended and expelled, minority and special education students are heavily over-represented. Of
course, disruptive behavior must be addressed, but criminal records close doors to opportunities that less
punitive intervention would keep open.”
The Continuum of Placements:
The least restrictive environment (LRE) to
the maximum extent appropriate
IDEA mandates the education of their child with a disability take place in the least
restrictive environment and should not be removed from the regular education classroom
unless he/she cannot be educated there with supplemental aids and supports. 20 U.S.C. §
1412(a)(5)
CONTINUUM: General Education (mainstream)  Co-Teach (general ed. & aide)  Resource
Room/Special ed. Room  Self-Contained Unit  B.A.C./behavior unit  Life Skills Program 
Homebound Services  Homeschooling  Residential Placement/Residential Treatment Center
 Juvenile Detention Center  State Supported Living Center or Similar 34C.F.R. § 300.115(b)(1)
Any change in placement can be done only by the ARD committee. Two Types of Changes
in Placement are:
 Disciplinary Change in Placement based on behavior alleged to be misconduct and
alleged violation of student code of conduct. This process requires a Manifestation
Determination Review (MDR). If a due process complaint were filed, “Stay Put” does not
apply and Placement Change proceeds 34 C.F.R. § 300.533
 Educational Change in Placement is (not based on misbehavior but) based on
educational, academic, functional, or developmental data. If a due process complaint were
filed, “Stay Put” does apply and Placement Change is put “on hold”
Behaviors and Violations of Student Code of Conduct:
A Disciplinary change in placement…
 Before a school can change a student’s placement for disciplinary reasons (to DAEP, for example), the
school’s ARD committee must first determine to what extent a child’s behavior is related to or caused by his
disability, a process called a Manifestation Determination Review (MDR). A change in placement can also
happen if a child has been suspended for more than 10 days total during the school year and there is a
pattern to the suspensions.
 A change in placement occurs if the student is removed for (1) over ten consecutive days, or (2) over ten
cumulative days if the removals form a “pattern.” A “pattern” exists if the child’s behavior is “substantially
similar” to the child’s behavior in previous removals, and “because of such additional factors as the length
of the removal, the total amount of time the child has been removed, and the proximity of the removals to
one another.” 34 C.F.R. § 300.536(a)(2)
 COUNTING of School Days for Long and Short Term Disciplinary Removals: The Dept. of Education has
stated in its Commentary that IN-SCHOOL SUSPENSIONS count if the special education student:
 Was not afforded an opportunity to continue to participate in the general education curriculum;
OR
 Was not provided the services specified in his Individualized Educational Program (IEP) including
related services, behavioral interventions, etc; OR
 Was not allowed to continue to participate with nondisabled children to the extent the student
would have in his current placement DOE Commentary, 71 Fed. Reg. 46715 (2006)
Behaviors and Violations of Student Code of
Conduct: Disciplinary change in placement (cont)
 Within 10 school days of any decision to change the placement of a child with a disability because of




(mis)conduct and a violation of the student code of conduct, the ARD committee must hold an MDR
and must review all relevant information in the student’s file, including the child’s IEP, any teacher
observations, and any relevant information provided by the parents
The MDR requires that the committee review all relevant information to determine whether a child’s
alleged conduct or (mis)behavior was:
1) Caused by or has a direct and substantial relationship to the child’s disability
OR
2) A direct result of the school’s failure to implement the child’s IEP and/or Behavior
Intervention Plan (BIP)
If the ARD committee determines that a child’s conduct was a manifestation of his disability, the
school must return the child to the placement he was in when the behavior occurred, unless the parent
agrees the student should be placed elsewhere as a modification of his BIP
If the child’s conduct was a manifestation of his disability, the school must also either conduct a
functional behavioral assessment, OR, if a BIP has already been developed, then review the BIP and
modify it as necessary to address the behavior
If it is determined that a child’s conduct or behavior was NOT a manifestation of his disability, the
school can then proceed to discipline the child the same way it would a regular education child (or
child not receiving special education). Again, if the discipline results in a disciplinary change in
placement, the full ARD committee alone has to make that decision
34 C.F.R. § 300.530(e),(f)
Behaviors and Violations of Student Code of
Conduct: Disciplinary change in placement (cont)

School personnel may remove a student to an “Interim Alternative Educational Setting” for not more
than 45 school days REGARDLESS of whether the behavior is determined to be a manifestation of the
child’s disability if the child:




“Carries or possesses a weapon at school… or to a school function”
“Knowingly p0ssesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school or
at a school function,” OR
“Has inflicted serious bodily injury upon another person while at school… or at a school function”
However, even if the child is removed for violation of the student code of conduct involving a weapon,
drugs, or serious bodily injury, an MDR must occur still occur within 10 school days of a decision to
change the placement of a student with a disability
34 C.F.R. § 300.530(e)(1),(g)

School officials can impose short-term disciplinary consequences, such as ISS and OSS, on students
with disabilities for any violation of the student code of conduct, so long as those consequences are
also applied to the non-disabled student and do not amount to a change in placement. For the first 10
days of such removals in a school year, the school is not obligated to provide educational services.
After the student has been removed from the placement as per the IEP due to disciplinary problems
for 10 days, any subsequent removal must be accompanied by services. Walsh, Kemerer and Maniotis.
Educator’s Guide to Texas School Law, Seventh Edition. p. 129 (2010)
Important Points to Know about Manifestation Determination Reviews
(MDRs)

Who is entitled to an MDR?


Any student with an IEP (i.e., a student in special education)
Any student in a 504 program
The ARD committee, when conducting its MDR, must review all relevant information in the
student’s file, including the student’s IEP, any teacher observations, and any relevant information
provided by the parent(s). 20 U.S.C. § 1415 (k)(1)(E); 34 C.F.R. § 300.530(e)(1)
 Any failure to review all relevant information is grounds for reversing an MDR decision. MDR
decisions have been reversed, when challenged by the parent or legal guardian, for:




Failure to review an independent psychiatric report Sch. Bd. Of City of Norfolk v. Brown, 769 F.Supp.2d 928
Failure to consider contradictory information in the student’s record In Re: Student with a Disability, 53
IDELR 173 (WI SEA 2009)
Failure to consider all of a student’s disabling conditions (e.g., Oppositional defiant disorder) Fulton County
Schools, 47 IDELR 33 (GA SEA 2007)
“Case by Case Determination: School personnel may consider any unique circumstances on a
case-by-case basis when determining whether a change in placement… is appropriate for a child
with a disability who violates a code of student conduct.” 34 C.F.R. § 300.530(a)
 The first prong of the 2 Part Analysis (see p. 11) does not involve a determination of whether a
student understood right from wrong at the time of the misconduct

Special Education and/or 504 services and IEP Follow the Student
to the DAEP Setting






Students must continue to receive educational services to enable the child to participate in the
general education curriculum
Student must make PROGRESS toward meeting the child’s IEP goals
Related services must continue to be provided as per the child’s IEP
The DAEP must have qualified, credentialed teachers
“In the case of a child whose behavior impedes the child’s learning or that of others,” the ARD
committee must “consider the use of positive behavioral interventions and supports (PBIS) and other
strategies to address the behavior.” 34 C.F.R. § 300.530(d); 34 C.F.R. § 300.324(a)(2)(i)
The student’s IEP must include “a statement of the special education and related services and
supplementary aids and services, based upon peer reviewed research to the extent practicable, to be
provided to the child…” 34 C.F.R. § 300.320(a)(4)
 Students (disabled and nondisabled) in DAEPs score poorly in TAKS reading and mathematics.
In 2005 – 2006, the average passing rate in reading for DAEP-referred students was seventy three
percent (73%) – 13 points lower than the state average. Their average passing rate in math was
thirty four percent (34%), which was 31 points lower than the state average of 65 points. It is not
known how much of the DAEP referral and the subsequent lapse in curriculum and instruction
causes or contributes to the low passing rate. Intercultural Development Research Association: Disciplinary
Alternative Education Programs in Texas, a 2009 Update. p. 6 (2009)
What Process Is Due to the Student Turns on Three Questions: 1) Did the state
take action? 2) Did the state deprive the individual of liberty or property?, and
3) Did the state provide the process that is due for such a deprivation?



TX Educ. Code § 37.001(a) requires that each district adopt a student code of conduct that will
specify standards for student conduct and outline the types of behavior that may get a student into
trouble at school. The code of conduct is to be developed with the advice of the district-level
committee and must be provided in some format to the parent
A new law passed in 2009 requires the code of conduct to specify that four mitigating factors will be
taken into account when a school orders a suspension, a DAEP or Juvenile Justice Alternative
Education Program (JJAEP), or an expulsion
 Self-defense;
 Intent, or lack there-of;
 The student’s disciplinary history; and
 Any disability that substantially impairs a student’s capacity to appreciate the wrongfulness of
the conduct
SUSPENSION: The TX Educ. Code states that a student may be suspended from school if the he/she
engages in conduct identified in the student code of conduct for which a student may be suspended.
Thus, the local school district is tasked to decide what types of offenses should necessitate a
suspension (Process due to student is notice and opportunity to student to offer explanation)

Suspension is meant as short-term disciplinary action. Under TX Educ. Code § 37.005(b), suspension is limited
to three consecutive days per offense, but there is no limit to the number of suspensions that could be imposed
over the school year. Walsh, Kemerer and Maniotis. Educator’s Guide to Texas School Law, Seventh
Edition. p. 317 (2010)
Removal to the DAEP – Mandatory and Discretionary Removal or
Placement Under Ch. 37 of the Texas Education Code…
 Mandatory Placement under TX Educ. 37.006 lists the offenses for which a student [after
conducting the MDR and affording the rights under IDEA to the student with the
disability] must be assigned to the DAEP. These include events which occur at school or
within 300 feet of a school, such as:






Any conduct punishable as a felony (in the TX Penal Code)
Assault resulting in bodily injury
Certain drug offenses
Certain alcohol offenses
Public lewdness
Indecent exposure
 Other offenses that require DAEP placement regardless of where it occurs include:




False alarm or report involving public school
Terroristic threat involving public school
Commission of Felony under Title 5 (violence against person) under TX Penal Code
Retaliation Against School Employee
Removal to the DAEP – Mandatory and Discretionary Removal or
Placement Under Ch. 37 of the Texas Education Code (Cont.)
 Discretionary Placement can involve reasons other than those listed in the TX Educ.
Code Ch. 37 as long as the student code of conduct gives notice that such removal could
occur
 Whatever decision is made about DAEP placement by the board or board’s designee is
“final and may not be appealed” Walsh, Kemerer and Maniotis. Educator’s Guide to Texas
School Law, Seventh Edition. p. 321 (2010)
 EXPULSIONS: (Applied to not less than 10 years old), a student may be expelled for:



Serious or persistent misconduct at a DAEP
Drug or alcohol offenses if not punishable as a felony
Criminal mischief
 EXPULSIONS: (Applied to not less than 10 years old), Expulsion is required for:

Possession of weapons
Assaultive offenses
Arson
Murder
Indecency with a child

Aggravated kidnapping

Acts of retaliation against school employee




On Reasons Why Students with Disabilities May Be OverRepresented in Disciplinary Actions Resulting in Suspensions,
Expulsions, or Removal to the DAEP…
 Lack of familiarity with educational system
 Lack of disclosure and dissemination of IDEA-based information

Not informing parent that IDEA places an affirmative duty on states and their local educational
agencies to identify, locate, and evaluate all children with disabilities residing in the state 34 C.F.R. §
300.111
 Not providing parent with a copy of their procedural rights and safeguards 34 C.F.R. § 300.504
 Lack of resources
 Language and other cultural barriers
BALANCING A SCHOOL’S OBLIGATIONS
(On Reasons Why Students with Disabilities May Be Over-Represented in Disciplinary Actions
Resulting in Suspensions, Expulsions, or Removal to the DAEP)
1)Maintaining School
Safety, Order, and
Discipline…
2)Maintaining a
Utilitarian Approach to
Education or Pedagogy
(“the greater good for the
greatest number”)…
Implementation of
an Individual’s
Individualized
Education Program
(IEP) under Special
Education
“Specialized instruction and
services that are necessary to
meet unique needs of a child
with a disability to have a free
appropriate public education”
20 U.S.C. § 1412(a)(1)
On Addressing and Reducing the Number of Students with
Disabilities Disciplined With the Use of Suspensions, Expulsions,
and Removal to the Disciplinary Alternative Education Program
 School Districts’ Codes of Conduct should include a system of different levels of responses to
minor and major student misconduct and one that holds youth responsible for their actions but
makes clear that removal from school is a last resort and complies with the Individuals with
Disabilities Education Act (IDEA)
 Devise “early warning or intervention systems” that identify and provide interventions to
students in need of behavioral interventions, including those who are chronically absent,
failing courses, experiencing disciplinary actions, or engaging in high-risk behavior
 School Districts should develop policies and guidelines to minimize referrals to the Juvenile
Justice System. Students should not be arrested and charged with minor school-based offenses
 Police and/or Resource Officers (SROs) should not make arrests or issue citations for minor
student misconduct that can be clearly addressed through the school’s code of conduct
The Southern Disability Law Center: Keeping Students With Disabilities in School: Legal Strategies and
Effective Educational Practices for Preventing the Suspension of Students with Disabilities, p. 5 (2014)