Q: I heard that the Legislature added to the list of mitigating circumstances that a school administrator must consider before expelling a student or placing a student in a DAEP. Is that true?
A: Yes. House Bill 811 now requires that consideration must be given to the status of a student in foster care or experiencing homelessness when making decisions involving suspension, removal to a disciplinary alternative education program (DAEP), placement in a juvenile justice alternative education program (JJAEP), or expulsion.
As you know, Section 37.001 of the Texas Education Code requires that a school district’s student code of conduct specify the mitigating circumstances that must be considered when making disciplinary decisions concerning suspension, removal to DAEP, placement in JJAEP, or expulsion. Importantly, these mitigating circumstances must be considered regardless of whether the decision involves mandatory or discretionary disciplinary action under Texas law. The mitigating factors are: (1) self-defense; (2) intent or lack thereof; (3) disciplinary history; and (4) whether the student has a disability that substantially impairs the capacity to appreciate the wrongfulness of his or her conduct. Tex. Educ. Code § 37.001(A)(4).
House Bill 811 seeks to protect certain vulnerable student populations by requiring consideration of two additional mitigating circumstances: (1) a student’s status in the conservatorship of the Department of Family and Protective Services; and (2) a student’s status as homeless, as defined by the McKinney-Vento Act. Id. A student is considered homeless when he or she lacks “a fixed, regular, and adequate nighttime residence.” Tex. Educ. Code § 37.001(b)(4); 42 U.S.C. § 11434a. Notably, House Bill 811 does not prohibit the district from taking the disciplinary action that it deems appropriate, but it does require consideration of these unique circumstances before making that decision. As such, you will need to update all hearing scripts and discipline orders to include consideration of these additional factors. Those using TASB’s Model Student Code of Conduct can find the text on pages 27, 28, 46 and 53.
For additional or specific questions regarding student discipline, please contact your local school attorney.