CFBISD Board of Trustees must make major changes to Student Disciplinary Policy.

CFBISD Board of Trustees must make major changes to Student Disciplinary Policy.



The Texas State Legislature passed HB 171 unanimously in the House and with only one nay the Senate. Clearly, it was the intent of legislature to send a message to administrators and school boards that they need to make major changes in disciplinary policies.

In analysis of HB 171 the State Legislature concluded :

Many students are unreasonably disciplined because of a school district's choice not to consider mitigating factors when evaluating a student’s action in a decision regarding suspension, removal, expulsion, or placement in a juvenile justice alternative education program. Current law authorizes, but does not require, school districts to consider mitigating factors such as self-defense, intent or lack of intent at the time the student engaged in certain conduct, a student's disciplinary history, or a disability that substantially impairs the student's capacity to appreciate the wrongfulness of the conduct. Such factors are clearly relevant and consideration of such factors is clearly necessary in making a fair and impartial decision as to the manner in which a student is disciplined.

HR 171 changes the State Education code to require that: “...that consideration will be given, as a factor in each decision concerning suspension, removal to a disciplinary alternative education program, expulsion, or placement in a juvenile justice alternative education program, regardless of whether the decision concerns a mandatory or discretionary action, to:
(A) self-defense;
(B) intent or lack of intent at the time the student engaged in the conduct;
(C) a student's disciplinary history; or
(D) a disability that substantially impairs the student's capacity to appreciate the wrongfulness of the student's conduct;”

Although the CFISD school district always required building administrators to consider self-defense and a student’s disability as mitigating factors in determining appropriate disciplinary action, administrators often ignored this policy. The code changes give this policy the force of law. Please note, that the code change does not require that student has to assert he or she acted in self defense prior to the building administrator considering self defense as a migrating factor. Neither the established school policy nor the new code changes, require that a student be enrolled in special education to be considered disabled. Neither does the existing school board policy or the change the state code required that the student reveal his disability prior to the building administrator considering the disability as a mitigating factor. Under new code change must consider a student’s intent or lack of intent at the time the student engaged in the conduct.


The code change clearly states, " specify that consideration will be given, as a factor in EACH decision..." Another words..ZERO TOLERANCE..policies are illegal.

For example, it is no longer acceptable or legal for a school to have a policy to automatically suspend student simply because a student engages in physical altercation. In each case, an Administrator must consider if student acted in self-defense. The administrator must establish that a student mutually engaged in the altercation with intent to subdue, to control, or cause harm to another individual. The administrator must establish that the student voluntarily participated in the altercation. The administrator ascertain whether a student a have disability that substantially impairs the student's capacity to appreciate the wrongfulness of the student's conduct. The administrator must consider each incident and each student individually. Further, Administrator was always required under the state education code to determined if a student was a victim of an assault. An administrator must take reasonable steps to find the truth in EACH case.

State legislature did not provide a definition for self-defense in the changes to the education code, however, the State legislature did define self-defense in section 9.31 of the State Penal code: …a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force… in determining whether an actor …reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat. This is the definition that must be applied by school districts. An administrator is not allowed to apply or substitute his or her own definition of self-defense.

Even before the passage of HR171, Texas courts had clearly established that administrators must considered student’s intent or lack of intent at the time the student engaged in the conduct.

Tarkington ISD v. Ellis


The Ninth District Court of Texas ruled that the Texas Education Code permits Texas school districts to decline to expel students for mandatory disciplinary infractions except for firearms if intent is adopted as a factor in expulsion decisions in the school district’s student code of conduct. From the opinion:

“The central issue in this case is whether Texas law mandates the expulsion of a student for unknowingly possessing a weapon on a school district’s property. We hold that the Texas Education Code permits school districts to decline to expel students for unknowingly possessing prohibited weapons if the districts have adopted intent as a factor in expulsion decisions.”

http://www.texaszerotolerance.com/data/TarkingtonISD_1_.pdf

It is abundantly clear, by requiring administrators to consider a student's disciplinary history as a mitigating factor, a student should not be suspended for a single minor violation of the Student Code Conduct. Suspensions, as a disciplinary intervention should be used for significant or repeated violations of the student code conduct.