Know Your Rights

In order for you to do your best at work, you have to know the tools that are available to you and the legal parameters that guide the district’s expectations of you. We’ve included some of the more frequently used sections of the Texas Education Code to start.


Not Receiving Your Planning Time?  We can help!

Planning and Preparation – The Law

Section 21.404 of the Texas Education Code, titled “Planning and Preparation Time,” requires school districts to provide each classroom teacher time for the broad purposes of planning and preparation. Particular use of that time is at the teacher’s discretion. The statute reads, in entirety:

Section 21.404.  Planning and Preparation Time. Each classroom teacher is entitled to at least 450 minutes within each two-week period for instructional preparation, including parent-teacher conferences, evaluating students’ work, and planning.  A planning and preparation period under this section may not be less than 45 minutes within the instructional day. During a planning and preparation period, a classroom teacher may not be required to participate in any other activity.

Minimum amounts and scheduling of planning and preparation time

Section 21.404 states plainly three time-related minimum requirements for planning and preparation time:

               1) A teacher is entitled to at least 450 minutes within each two-week period.

               2) Each single instance must be at least 45 minutes.

               3) The minimum time must be provided during the instructional day.

Teacher discretion over planning and preparation time activities

Section 21.404 states plainly that, during planning and preparation time, a teacher may not be required to participate in any other activity. Further, in decisions spanning more than 20 years, the Commissioner of Education has held that the statute provides the individual teacher with complete discretion over how to use this time.

In 1985, the Commissioner held that use of planning and preparation time was for the purposes delineated in statute, regardless of the importance district administration might attach to some other activity:

               The statute clearly relieves the teacher of any duty during this period of time and prohibits the district and its administration from requiring the teacher to engage in any other activity the administration determines to be useful and important.   (Strater v. Houston ISD) Also, in 1985, the Commissioner made clear that each teacher exercises individual discretion over the use of her planning and preparation time:

               Petitioner could not be required to attend the in-services no matter how many other teachers supported their being  scheduled during his planning and preparation period. (Strater v. Houston ISD) In 1990, the Commissioner was specific that the teacher has sole authority on use of her planning and preparation time:

               A teacher’s planning and preparation period is, therefore, for the use of the teacher as he or she sees fit, within the statutory boundaries, free from any duty mandated by the school district. (Chaffin v. Los Fresnos ISD)

Conclusion

Over many years, the statute has been clear and consistent, changing only slightly in ways not relevant to the issues discussed here. The Commissioner’s interpretation of the statute has been consistent. Each classroom teacher is entitled to a specified minimum amount of planning and preparation time over a two-week period. That time must be provided during the instructional day in duration of no less than 45 minutes. A district may not compel a teacher to use this time in any particular way.

 


 

Having discipline/behavior concerns with your students and not getting support? We can help!

Safe School Act – Chapter 37

PART ONE: Introduction to the SAFE SCHOOLS ACT

In 1995, the Texas Legislature completely revised the law on student discipline. As a result, teachers have greater power than ever before to remove misbehaving students from the regular classroom. The Safe Schools Act is contained in Chapter 37, Sections 37.001-37.020 of the Education Code. School districts are required to provide all administrators and teachers with a copy of the act.
Documentation is the key to successful use of this law. We have provided sample forms that we encourage you to use for this purpose. We also recommend that you discuss this law with an HFT staff member before putting it to use.
REMEMBER: THE LAW IS NOT SELF ENFORCING. YOU MUST TAKE STEPS TO USE THE LAW AND INSIST THAT YOUR ADMINISTRATORS FOLLOW IT.

PART TWO: Basic Questions and Answers

1. Question: How does this state law affect local policy on student conduct?

Answer: Section 37.001(a) of the Education Code requires your local school district to adopt a student code of conduct. This local code cannot reduce teacher’s authority granted by state law to remove disruptive students. In case of any conflict between your local code of conduct and provisions of this state law, the state law controls. The local code of conduct must comply with the state law concerning disciplinary removal of a student from a classroom, campus, or alternative education program; transfer of a student to an alternative education program; and suspension or expulsion.

2. Question: What discipline tools are provided?

Answer: The Code allows a student’s removal from the regular classroom for serious disruption. It mandates removal of a student and placement in an alternative education program for more serious offenses like assault causing bodily injury.
For the gravest of offenses- including aggravated assault and bringing guns and illegal knives to school – it mandates removal, explosion, and referral to the juvenile justice system. (note: Students under six cannot be placed in a disciplinary alternative education program, and students under ten cannot be expelled.)
The teacher who removes the student has a right to refuse that student’s return to the classroom. In certain cases (see below) the teacher’s refusal can be overruled, but in some of the most serious cases, the teacher’s refusal cannot be overruled.

Discretionary Removal

3. Question: The law says a teacher may remove a student from class for certain
misconduct. What does this mean?

Answer: This section in the law might be called “discretionary removal” provision because the Code allows a teacher to remove a student

(1) “who has been documented by the teacher to repeatedly
interfere with the teacher’s ability to communicate
effectively with the students in the class or with the
ability of the student’s classmates to learn;” or

(2) “whose behavior the teacher determines is so unruly,
disruptive or abusive that it seriously interferes with
the teacher’s ability to communicate effectively with
the students in the class or with the ability of the
student’s classmates to learn.”

NOTE: To avoid misunderstanding, when you remove a student from a class under this provision, you should specifically refer to your authority to remove a student under Education Code Section 37.002. Otherwise, a principal may treat your action as a less serious form of discipline, allowing the principal wide discretion to “respond by employing appropriate discipline management techniques.” Sample letter for discretionary removal and reporting form are in this document may be used to remove a student under the provisions of Section 37.002.

 

4. Question: What happens when the teacher removes a student who engages in the specified types of misconduct under this discretionary provision?

Answer: The principal has the following options for deciding where that student will be placed:

    1. another regular classroom
    2. in-school suspension
    3. an alternative education program for student violators of discipline rules – on or off campus
    4. three-day suspension from school.

    5. Question: Can the principal return the student to the classroom of the teacher who removed that student?

    Answer: Not without the teacher’s consent – unless the teacher is overruled by a placement-review committee that determines such placement is the best or only alternative available.

     

    Placement-Review Committee

    6. Question: What is this placement-review committee?

    Answer: The law says each school must establish a three member committee with two teachers (and one alternate) chosen by the campus faculty to serve as members and one member chosen by the principal form the professional staff of the campus. TEA recommends making this a standing committee.
    This committee can override a teacher’s refusal to accept the return to the regular classroom of a student the teacher has removed under the discretionary removal provision. To override the teacher’s decision, the committee must determine that such placement is the best or only placement available. The committee also can review mandatory removals initiated by teachers, as discussed below.

    Mandatory Removal

    7. Question: When is removal of a student mandatory?

    Answer: The law says, “A teacher shall remove from class and send to the principal for placement in an alternative program of for expulsion, as appropriate, “a student who engages in various types of serious misconduct. Section 37.006 lists the various types of misconduct that require placement in an alternative program. Section 37.007 lists the kinds of misconduct that trigger expulsion.

    8. Question: When is placement in an alternative education program mandatory?

    Answer: The law says a student ” shall be removed from class and placed in an alternative education program” for any of the following acts committed on or within 300 feet of school property or at a school-related event:
    (1) any conduct punishable as a felony;
    (2) conduct that meets the Penal Code definition of an assault
    causing bodily injury;
    (3) use, possession, sale, or delivery of alcoholic beverages or
    illegal drugs;
    (4) conduct that meets the Penal Code definition of abuse of
    glue, aerosol paint, or chemicals;
    (5) conduct that meets the Penal Code definition of public
    lewdness or indecent exposure.

(6) off-campus violent felony conduct, as found by a court or jury, or as determined by the superintendent on “reasonable belief.”

(7) conduct that meets the Penal Code definition of retaliation against any school employee, regardless of where the conduct occurs,

(8) conduct that meets the Penal Code definition of “false report” (for example, a bomb threat) or “terroristic threat.”

(9) expellable misconduct by a student under age ten.

9. Question: May a teacher refuse a student’s return to the regular classroom after mandatory placement in an alternative education program for these types of misconduct?

Answer: In these cases the law bars the student’s return to the classroom of the teacher who removed the student, unless that teacher consents. Section 37.009(e) also says that the teacher’s consent may not be coerced.

NOTE: When a student’s conduct does not meet the required conditions for mandatory removal and does not result in placement in and alternative education program, the case may be treated as discretionary removal – which the placement-review committee can review and overrule. ( see above under discretionary removal).

10. Question: Where do students go after mandatory removal for these types of misconduct?

Answer: Each school district must provide and alternative education program outside the regular classroom and separate from students in the regular program. The alternative program may be on or off of a regular campus. If it is and off-campus program exclusively for students removed under Chapter 37, teacher certification and Code safeguards of employee rights and benefits do not apply.

EXPULSION

11. Question: When must a student be expelled, instead of being place in an alternative education program within the public school system?

Answer: For offenses listed in Section 37.007, the mandates expulsion and referral to the juvenile justice system. Offenses that trigger expulsion if committed on school property or at a school event are:

(1) use, exhibition, or possession of a firearm, illegal knife, club, or prohibited weapon, as these terms are defined in the Penal Code.

(2) conduct that meets the definition of aggravated assault, sexual assault, arson, murder, attempted murder, indecency with a child, or aggravated kidnapping;

(3) felony offenses involving alcoholic beverages or illegal drugs;

(4) any one of these offenses committed in retaliation against a school employee, regardless of where the offense occurs.

Section 37.007 requires a school district to inform a teacher if any of the teacher’s students has engaged in any of the above violations. The teacher is required to keep this information confidential and may have his/her certificate sanctioned if the information is released.

This section of the Code also allows school district to expel a student for:

(1) serious and present misbehavior – while in a disciplinary alternative education program – that violates the district’s student code of conduct;

(2) felony criminal mischief;

(3) misdemeanor drug and alcohol offenses at school;

(4) assault on a school employee or volunteer causing bodily injury; and

(5) false report (for example, a bomb threat) or terroristic threat as defined in the Penal Code.

 

STUDENTS WITH DISABILITIES

12. Question: Do all of the provisions of Chapter 37 apply to students with disabilities?

Answer: Some, but not all. A student with a disability who receives special education services comes under the same state standards triggering removal from class. But long-term (more then ten days) placement of such a student must be made only by a duly constituted Admission, Review, and Dismissal (ARD) committee.
Juvenile justice officials are entitled to take part in the ARD committee meeting if the ARD process could result in the expulsion of a student with disabilities to the juvenile justice system. Juvenile justice officials also can force and ARD committee to meet if they believe a student who already has been placed in on of their alternative education facilities cannot be appropriately handled there.

 

Due Process

13. Question: What process must be followed after a student is removed – under wither the discretionary or mandatory removal provisions?

Answer: The principal should schedule a conference no later than the third day after the day of the removal. The student may not be returned to the regular classroom before the conference. The student is entitled to notice of the reasons for removal and an opportunity to respond.
In addition to the student, those entitled to attend are: the student’s parent or guardian; the teacher who removed the student; and the principal or the principal’s designee. Whether these individuals attend or not, the principal must then order the student’s placement based on what the conference show regarding the student’s conduct.
NOTE: The teacher should document and describe the student’s conduct carefully and precisely at this post removal conference. When the teacher has initiated the removal, the principal cannot compel the teacher to take back the student after this conference – unless and until a properly constituted Placement-Review committee determines the teacher’s class to be the best or only placement available.
If the student’s alternative placement will extend beyond the end of the next grading period, the student’s parent or guardian can request a hearing be fore the school board. The board’s decision in such a case is final and cannot be appealed.
In order to expel a student , the board or its designee must provide the student a hearing before the school board. The board’s decision in such a case is final and cannot be appealed.

 

Emergency Procedures

14. Question: Can a student be placed in an alternative education program or be expelled without a prior due process conference or hearing?

Answer: Yes, the law (Section 37.019) allows emergency placement if the principal “reasonably believes” that a student’s behavior is “so unruly, disruptive, or abusive that it seriously interferes with a teacher’s ability to communicate effectively with the students in a class, with the ability of a student’s classmates to learn, or with the operation of school or a school sponsored activity.” The law likewise allows emergency expulsion if the principal ” reasonable believes that action is necessary to protect persons or property from imminent harm.” In either case, the principal must give the student the same due process as in other removals within a reasonable time after the taking of the action.

Role of the Courts

15. Question: Can a student who has been expelled from school and who has been placed under court supervision come back to the regular classroom?

Answer: A district may readmit a student who has been expelled while that student is completing court ordered requirements. After the student has met court ordered requirements, the district must readmit the student, but the student can be placed in an alternative program.

16. Question: Suppose a teacher initiated removal of a student who was then expelled and placed under court supervision. What rights does the teacher have if that student is readmitted by the district?

Answer: Without the teacher’s consent, the student may not be returned to the classroom of the teacher under whose supervision the offense occurred. The law says the teacher’s consent may not be coerced. Section 37.010(f) also specifies that the teacher has an absolute right to refuse the student’s return in this type of case, “notwithstanding” the section of the law that says a placement-review committee may override such refusal.

 

Arrest/Conviction Reports

17. Question: What notice must school personnel receive when a law enforcement agency arrests or refers a student to juvenile jurisdiction for a felony offense?

Answer: First, the superintendent must be notified orally or in writing within 24 hours of the arrest or juvenile referral. Then, according to Article 15.27(a) of the Texas Code of Criminal Procedure, the superintendent must “promptly notify all instructional and support personnel who have responsibility for supervision of the student.” In addition, Article 15.27(b) says the superintendent, upon receiving notice that such a student has been convicted or adjudicated delinquent for a felony offense, must “promptly notify all instructional and support personnel who have regular contact with the student.

Forms

Sample letter for Mandatory Removal

To: (Principal’s name), Principal
From:
Date:
Re: Removal of student under Section 37.002(d), Texas Education Code

Under the provisions of Texas Education Code Section 37.002(d), I am exercising my authority to remove ____________________ from my classroom. Under Section 37.009(a), please note that this student may not be returned to my classroom pending a conference held with you, the student, the student’s parent or guardian, and me.
Please notify me as to the date and time of this conference. Please note also that this student, if placed in and alternative education program under Section 37.006 for the conduct reported here, may not be returned to my classroom without my uncoerced consent, according to Section 37.009(e) of the Texas Education Code.
Please note further that this student, if expelled under Section 37.007 for the conduct reported here and eventually readmitted by the district during or after court disposition, may not be returned to my classroom without my uncoerced consent, notwithstanding any determination by the school’s placement-review committee, according to Section 37.010(f) of the Texas Education Code.

Sample letter for Discretionary Removal

To: (Principal’s name), Principal
From:
Date:
Re: Removal of student under Section 37.002(b), Texas Education Code

Under the provisions of Texas Education Code Section 37.002(b), I am exercising my authority to remove ____________________ from my classroom. Under Section 37.009(a), please note that this student may not be returned to my classroom pending a conference held with you, the student, the student’s parent or guardian, and me.
Please notify me as to the date and time of this conference. Please also note that this student may not be returned to my classroom without my consent unless the placement-review committee duly established under Section 37.003 of the Texas Education Code determines that such placement is the best or only alternative available.
Attached is a cumulative discipline record detailing the repeated interference by ____________________________with my ability to communicate effectively with the students in my class or with the ability of this student’s classmates to learn.
(and/or)
Attached is a discipline record documenting behavior by _______________________ that is so unruly, disruptive, or abusive that it seriously interferes with my ability to communicate effectively with the students in my class or with the ability of this student’s classmates to learn.