A CHECKLIST FOR STUDENT EXPULSION (Special Education)

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A CHECKLIST FOR STUDENT EXPULSION

(Special Education)

➢ This is a general guide for student expulsion

based on the legal

requirements

of Chapter 37

of the Texas Education Code. Please check

your district policy and Student Code of

Conduct for additional or different

requirements.

➢ Double-underlining indicates when form letters

or other written communications are required.

If the student is age 18 or older, send the

student copies of all correspondence.

➢ This checklist includes the procedures for the

expulsion of students with disabilities. It should

not be used for general education students.

➢ The material provided in this guide is for

informational purposes only. Consult your

attorney if you need specific legal advice.

REMINDER: Students engaged in distance or remote learning are engaging in a school-sponsored or school-

related activity, and therefore remain subject to the Student Code of Conduct.

WHEN YOU THINK A STUDENT HAS ENGAGED IN MISCONDUCT:

Step 1

Gather information concerning the alleged infraction and investigate the events

related to that allegation. This should be done on the day of the offense or as

soon as possible given the circumstances and the complexity of the situation. Be

efficient and prompt, but do not rush to judgment. Properly document the

investigation.

Step 2

Consider an interim assignment pending conclusion of the investigation.

If the student is in the “FAPE Free Zone” (FFZ) all options are available, including

out-of-school suspension for up to three school days, see below for possible

exceptions if the student is enrolled in a grade level below grade three or

homeless; additionally, you will want to review your Student Code of Conduct.

The student is in the FFZ if the student has not been removed from his/her

Individualized Education Program (“IEP”) placement for disciplinary reasons more

than ten total days during the current school year. REMINDER: an out-of-school

suspension cannot exceed three school days. If more time is needed to complete

the investigation, place the student into in-school suspension after the third day

of out-of-school suspension.

NOTE: A student who is homeless, as defined under federal law, may not be

placed in out-of-school suspension unless, while on school property or while

attending a school-sponsored or school-related activity on or off school property,

the student engaged in: 1) conduct that contains the elements of an offense

related to weapons under Section 46.02 or 46.05, Penal Code; 2) conduct that

contains the elements of a violent offense under Section 22.01 , 22.011 , 22.02,

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or 22.021, Penal Code; or (3) selling, giving, or delivering to another person or

possessing, using, or being under the influence of any amount of marijuana or a

controlled substance, a dangerous drug, or an alcoholic beverage, as defined

under state law. The campus behavior coordinator should coordinate with the

district’s homeless education liaison to identify appropriate alternatives to out-

of-school suspension for a homeless student. Tex. Educ. Code §37.005(d).

NOTE: A student enrolled in a grade level below grade three cannot be placed in

out-of-school suspension unless, while on school property or while attending a

school-sponsored or school-related activity on or off school property, the student

engages in: 1) conduct that contains the elements of an offense related to

weapons under Texas Penal Code Sections 46.02 or 46.05; 2) conduct that

contains the elements of a violent offense under Texas Penal Code Sections 22.01

, 22.011 , 22.02 , or 22.021; or (3) selling, giving, or delivering to another person

or possessing, using, or being under the influence of any amount of marijuana or

a controlled substance, a dangerous drug, or an alcoholic beverage, as defined

under state law. Tex. Educ. Code § 37.005(c).

A student placed in in-school or out-of-school suspension must be provided an

alternative means of receiving all course work provided in the classes in the

foundation curriculum the student misses as a result of the suspension, and at

least one option for receiving the instruction must not require use of the Internet.

Tex. Educ. Code §37.005(e).

If the student is beyond the FFZ, the interim assignment must be one in which the

student can continue to participate in the general curriculum and continue to

progress toward achievement of the goals set out in the student’s IEP.

Also, be sure to document both the removal from the current educational

placement, the interim assignment, and the services to be provided during the

interim assignment; this documentation should be kept in the student’s special

education eligibility folder.

Use an “Interim Assignment” form when the student is removed for disciplinary

reasons after the first ten cumulative days of removal. It is not necessary to use

this form for the first ten cumulative days of removal in the school year.

See special education expulsion form “Step 2: Interim

Assignment

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Step 3

If out-of-school suspension is ordered, issue a discipline referral form if

appropriate. The campus behavior coordinator must also promptly contact the

parent/guardian by phone or in person and make a good faith attempt to provide

the student with written notice of the disciplinary action to be delivered to the

parent/guardian on the same day the consequence is assigned. If the

parent/guardian is not reached by phone or in person by 5:00 p.m. on the first

business day after out-of-school suspension is assigned, written notice must be

sent to the parent’s/guardian’s last known address. Another campus

administrator may provide notice of disciplinary action if the campus behavior

coordinator is not able or available to provide notice.

Step 4

Conduct and document the investigation, review the Student Code of Conduct,

identify the misconduct committed, and ascertain the appropriate recommended

disciplinary consequence to be applied.

Step 5

Check the age of the student. Remember:

▪ If the student is under age 10, he or she may not be expelled, but must

instead be placed in DAEP for the commission of an expellable offense.

▪ Students under age 6 may not be expelled or assigned to DAEP unless the

student commits a federal firearm offense. Tex. Educ. Code

§ 37.006(f)&(l).

BEFORE THE EXPULSION HEARING:

Step 6

For certain offenses, the principal or designee must report the offense to the

school district police and the city or county police if he or she has reasonable

grounds to believe the offense occurred at school or a school-related activity.

Those offenses are:

▪ murder or capital murder

▪ criminally negligent homicide

▪ criminal attempt to commit

murder or capital murder

▪ continuous sexual abuse of a

young child(ren)

▪ manslaughter

▪ indecency with a child

▪ aggravated assault

▪ sexual performance of a child

▪ sexual assault

▪ compelling prostitution

▪ aggravated sexual assault

▪ criminal solicitation

▪ injury to a child, elderly, or

disabled person

▪ using a child to assist or commit a

drug offense

▪ arson

▪ certain drug-related offenses

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▪ burglary

▪ deadly conduct

▪ robbery

▪ terroristic threat

▪ aggravated robbery

▪ mandatory expellable conduct

▪ organized criminal activity

▪ possessing or promoting lewd

visual material depicting a child

▪ retaliatory assault of an employee

or volunteer

▪ certain weapon offenses

Notice must also be provided to each instructional or support employee who has

regular contact with the student. Tex. Educ. Code § 37.015.

For certain other offenses, the principal or designee may report the offense to

the school district police or the city or county police if the principal or designee

has reasonable grounds to believe that the student engaged in conduct that

constitutes any of the following offenses:

▪ assault

▪ harassment through repeated electronic communications

Tex. Educ. Code § 37.0151(a).

See special education expulsion forms entitled “Step 6-A: Notice

to Law Enforcement” and “Step 6-B: Notice to Instructional or

Support Employees”

Step 7

Notify the parent/guardian that an expulsion recommendation has been made

and a hearing must be conducted to consider the recommendation before a final

decision is made. Only speak in terms of “recommending” expulsion; do not tell

the parent the student has been expelled or make other comments to create the

impression that it is a foregone conclusion that the student will be expelled. Also

inquire about parent consent to share special education records with law

enforcement or judicial authorities.

Schedule the expulsion hearing with the parent/guardian at a mutually agreeable

date and time. Provide written notice to the parent/guardian; allow enough time

(at least 72 hours) for the parent/guardian to prepare for the hearing. The written

notice should:

▪ Be sent by either hand delivery with confirmation of receipt or, if this is

not practical, by both certified mail return receipt requested and regular

mail.

▪ Indicate the date, time, and location of the expulsion hearing.

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▪ Invite the student and parent/guardian to attend the hearing.

▪ Explain the specific nature of the misconduct as set out in the Student

Code of Conduct, local policy, and Texas Education Code §§ 37.0052,

37.007 or 37.0081.

▪ Identify the proposed sanction.

▪ Inform the student and parent/guardian of their right to testify, present

evidence, and cross-examine witnesses.

▪ Name any witnesses whose testimony may be used against the student

and generally describe the subject of their testimony.

▪ Inform the student and parent/guardian of the right to have a

representative present at the hearing.

▪ Inquire whether the parent/guardian will have an attorney present at the

meeting.

▪ Provide the parent/guardian with the option of waiving the expulsion

hearing and include a written waiver form to that effect.

▪ Include a copy of legal and/or local policies FOD and FNG.

See special education expulsion forms entitled “Step 7-A: Notice to

Parents Scheduling Expulsion Hearing” and “Step 7-B: Waiver of

Right to an Expulsion Hearing”

Step 8

Contact the parent/guardian to schedule an ARD committee meeting to occur

after the expulsion hearing. An ARD committee meeting is still necessary even if

the parent waives the expulsion hearing.

Send out an invitation to the ARD meeting, with the meeting scheduled no later

than 10 school days after the date the student is first removed from the IEP

placement, but no earlier than 5 school days after the notice of the meeting if

provided, unless you have parent agreement to waive the required 5 school days

prior written notice. Make sure the invitation indicates that a change of

placement will be discussed. Also include the “Notice of Procedural Safeguards”

document.

Step 9

Arrange to have the district’s legal counsel present at the expulsion hearing if

the student will have an attorney or advocate present or if the facts of the

expulsion are complex.

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Step 10

Prepare the administration’s presentation:

▪ Determine who will present the administration’s position;

▪ Prepare an outline of the administration’s presentation;

▪ Prepare all administration witnesses for the hearing, if any will be used.

Inform them of the time and place of the hearing, give them an idea of

the questions that may be asked at the hearing, and remind them to tell

the truth. Do not, however, tell the witnesses what to say;

▪ Prepare and mark all documents that will be submitted as evidence at

the expulsion hearing. Be sure to redact the personally identifiable

information of other students from the documents. Prepare enough

copies for each board member (if applicable), district legal counsel, the

student, parent/guardian, and the student’s legal representative; and

▪ Anticipate and prepare for cross-examination questions.

Step 11

Make the following preliminary arrangements for the expulsion hearing:

▪ Have a good quality audio or audio/video recording (preferably digital)

made of the hearing. In addition, consider arranging to have a court

reporter present to create a record of the proceeding, especially if there

is a likelihood of an appeal to a state court.

▪ Have a foreign language interpreter or an interpreter for the deaf present

if needed to ensure the parent/guardian fully understands the

proceeding.

Step 12

Arrange to have a clerk or court reporter present to swear in all witnesses and to

receive and mark all documents submitted at the hearing. The clerk should be

someone who is (1) an employee of the school district, and (2) a notary public.

Step 13

If your county has a JJAEP, initiate contact and ascertain what information the

JJAEP needs to admit the student. This will facilitate the process if expulsion is

ordered.

AT THE EXPULSION HEARING:

Step 14

After making a good faith effort to inform the student and the student’s parent of

the time and place of the expulsion hearing, a school district may hold the

expulsion hearing regardless of whether the student, the student’s parent, or

another adult representing the student attends. Tex. Educ. Code § 37.009(f). An

audio or audio/visual recording should be made as well.

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When a student withdraws before an Expulsion Order is entered, a school

district may complete the expulsion proceedings and issue an Expulsion Order.

Tex. Educ. Code § 37.009(i).

Step 15

If a non-parent attends the expulsion hearing in lieu of the parent or guardian,

obtain written consent from the parent/guardian or eligible student to discuss

the student's personally identifiable information and education records in the

presence of the non-parent in accordance with the Family Educational Rights

and Privacy Act (FERPA) If the parent or guardian is also present at the

expulsion hearing but refuses to provide written consent, make sure the audio

recording reflects verbal consent and the refusal to sign a written consent.

See special education expulsion form entitled “Step 15:

Authorization to Release Education Records”

Step 16

Make sure the audio or video recorder is functioning properly and picking up all

voices.

Step 17

At the expulsion hearing, the Board or Board’s designee acts as an impartial

hearing officer. By law, the District must consider the student’s intent or lack of

intent, the student’s discipline history, whether the student acted in self-defense,

whether the student is under the conservatorship of the Department of Family

and Protective Services, whether the student is homeless (as defined under

federal law), or whether the student has a disability that substantially impairs the

student’s capacity to appreciate the wrongfulness of the student’s conduct. Also,

remember to discuss all of the documents and factors that the Student Code of

Conduct requires you to consider as part of the decision-making process. Check

the Student Code of Conduct to be certain, but the factors usually include the

severity and effect of the misconduct, the age and grade level of the student, the

student’s demeanor, discipline history, frequency of misconduct, and legal

requirements. These factors should be considered and addressed during the

expulsion hearing.

For a script to follow during the expulsion hearing, see special

education expulsion form entitled “Step 17: Expulsion Hearing

Guide for the Board or Board Approved Designee”

The administrator presenting the administration’s case, usually the principal,

should submit all supporting documents to the hearing officer for consideration,

call witnesses and ask questions to elicit important supporting facts, and be

prepared to cross-examine any witnesses the student may call on the student’s

behalf.

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Supporting evidence should always include:

▪ The Student Code of Conduct in its entirety;

▪ The Student’s signed Signature page for the Code of Conduct;

▪ Relevant policies;

▪ Scheduling letters and notices to parents about the expulsion; and

▪ Prior discipline history of the student, if any.

In addition, the following documentation may be useful evidence depending on

the circumstances and should be made a part of the record of the hearing:

▪ Discipline referral forms;

▪ Witness statements (any verbal or hand written student statements

should be typed and redacted);

▪ Investigation reports or findings, with the names of other students

redacted;

▪ Photographs or physical evidence;

▪ Drug dog reports;

▪ Police reports, such as notices sent per article 15.27 of the Code of

Criminal Procedure; and

▪ Provisions of the Texas Education Code or other relevant laws.

NOTE: If the district is closed due to a weather or health-related emergency or

government order, and the expulsion hearing cannot take place on school

property, arrange to conduct the disciplinary proceeding remotely, either by

telephone or through a video conferencing application.

AFTER THE EXPULSION HEARING, IF THE STUDENT IS EXPELLED:

Step 18

Draft the Expulsion Order. If a waiver of an expulsion hearing is obtained, an

Expulsion Order still needs to be issued. The Expulsion Order should:

▪ Indicate the date, time, and location of the expulsion hearing.

▪ Identify who was present at the expulsion hearing.

▪ Identify the misconduct and refer to the appropriate provisions of the

Student Code of Conduct, local policy, and Texas Education Code §§

37.0052, 37.007 or 37.0081.

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▪ Specify the period of expulsion.

o Make sure the period of expulsion is consistent with the placement

guidelines established in your school district’s Student Code of

Conduct. If the period of expulsion is inconsistent with the guidelines

set out in the Student Code of Conduct, the Expulsion Order must give

notice of the inconsistency. Tex. Educ. Code § 37.009(h).

o In most cases the period of expulsion cannot exceed one year unless

the district determines that: (1) the student is a threat to the safety of

other students or employees, or (2) extended placement is in the best

interest of the student. Tex. Educ. Code § 37.009(h).

o Expulsions made in accordance with Texas Education Code § 37.0081

may be for an extended length of time as provided by that specific law.

▪ Indicate that enforcement of the expulsion order is subject to action by

the ARD committee.

▪ Specify that the student is prohibited from being on campus or attending

or participating in school events during the period of expulsion. If a student

will be precluded from “walking” at graduation because of the expulsion,

the order should specifically say so.

▪ Indicate that a copy of the Expulsion Order will be sent to the juvenile

court and JJAEP juvenile board if appropriate.

▪ Include a signature line for the hearing officer.

▪ Write in the date the Expulsion Order was signed.

▪ Identify the misconduct and refer to the appropriate provisions of the

Student Code of Conduct, local policy, and Texas Education Code sections

37.0052, 37.007, or 37.0081.

NOTE: If the district is closed due to a weather or health-related emergency or

government order, and instruction is being provided remotely, follow district

policies or administrative regulations that address the impact on the closure and

the terms of the student’s expulsion, including calculation of the length of the

disciplinary placement, or whether the placement will begin when schools re-

open.

See special education expulsion forms entitled “Step 20-A:

Expulsion Order” and “Step 20-B: Expulsion Order If Hearing

Waived”

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Step 19

Under cover letter, send a copy of the Expulsion Order to the student and

parent/guardian. Enclose with the cover letter a copy of local policy FNG and/or

FOD as appropriate. Tex. Educ. Code § 37.009(g).

The campus behavior coordinator must promptly contact the parent/guardian by

phone or in person and make a good faith attempt to provide the student with

written notice of the expulsion to be delivered to the parent/guardian on the

same day the consequence is assigned. If the parent/guardian is not reached by

phone or in person by 5:00 p.m. on the first business day after expulsion is

ordered, written notice must be sent to the parent’s/guardian’s last known

address. The written notice must identify that enforcement of the expulsion order

is subject to action by the student’s ARD committee. Another campus

administrator may provide notice of disciplinary action if the campus behavior

coordinator is not able or available to provide notice.

See special education expulsion forms entitled “Step 21-A: Letter to

Parents Providing Expulsion Order” and “Step 21-B: Letter to

Parents Providing Expulsion Order If Hearing Waived”

AT THE ARD MEETING:

Step 20

The ARD meeting must be held within ten school days after the removal from the

IEP placement. Review all relevant information from the student’s file including,

but not limited to the disciplinary conduct that led to the removal, the student’s

most recent evaluations and IEP and teacher and parent input. After a review of

all relevant information, determine whether or not the behavior of the student is

a manifestation of the student’s disability.

Step 21

If the ARD committee comes to consensus that the behavior of the student was

not a manifestation of the student’s disability, the student can be expelled for

the same length of time as a general education student. However, the school

must continue to provide services to enable the student to appropriately progress

in the general curriculum and appropriately advance toward achieving the goals

set out in the IEP. The ARD committee should verify and document that this can

be done. Additionally, within 10 days after the change in placement, the District

must: (1) seek parent consent to conduct a Functional Behavioral Assessment

(FBA), if a FBA has not previously been conducted on the student or the student’s

most recent FBA is more than one year old; (2) review any previously conducted

FBAs and any Behavioral Intervention Plan (BIP) developed for the student based

on that FBA; and as necessary, (3) develop a BIP for the student if the student

does not have one or if the student does have a BIP, review and revise the BIP.

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If the ARD committee comes to consensus that the behavior of the student was a

manifestation of the student’s disability, the ARD committee must: (1) conduct a

FBA or review the existing one, and (2) develop a BIP or review and modify the

existing one to address the behavior. The student cannot be expelled unless the

parents and school agree to a change of placement as part of a modification to

the student’s BIP. This does not constitute a disciplinary placement. Even with

parent agreement, the school must continue to provide services to enable the

student to appropriately progress in the general curriculum and appropriately

advance toward achieving the goals set out in the IEP. The ARD committee should

verify and document that this can be done. The student should be returned to the

original placement unless the misconduct involved one of the “special

circumstances” (see below).

If the ARD committee determines that the behavior of the student was not a

manifestation of the disability, but the parent or adult student disagrees, the

student can be expelled. However, the parent or adult student should be advised

of their right to request a special education due process hearing, seek mediation,

or file a complaint. The ARD committee is not required to offer the parent a ten-

day recess when the student has committed an offense that calls for expulsion.

If the disciplinary removal was based on “special circumstances” (i.e. a drug or

weapons offense at school or at a school function, or a case in which the student

inflicted serious bodily injury on another person at school or a school function),

the school can assign the student to an Interim Alternative Educational Setting

(IAES) for up to 45 school days — even if the behavior is found to be a

manifestation of his/her disability by the ARD committee. IAES is a term in federal

law that refers to a setting where:

▪ the student can continue to progress in the general curriculum, although

in another setting;

▪ the student can continue to receive services and modifications that will

enable the student to meet the goals set out in the IEP; and

▪ the setting includes services and modifications designed to prevent a

recurrence of the offense.

The ARD committee should verify that the student will be served in a setting that

satisfies these standards.

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AFTER THE EXPULSION HEARING & ARD MEETING, IF THE STUDENT IS EXPELLED:

Step 22

If expulsion was ordered pursuant to Texas Education Code § 37.007, under cover

letter send a copy of the Expulsion Order to the authorized officer of the juvenile

court within two business days following the expulsion hearing. Tex. Educ. Code

§ 37.010(a).

See special education expulsion form entitled “Step 22 & 23: Letter

to Juvenile Court/JJAEP Enclosing Expulsion Order”

Step 23

If your county has a JJAEP or your district contracts with a JJAEP for services, under

cover letter send a copy of the Expulsion Order and documents needed for JJAEP

admission to the juvenile board’s designated representative (often the JJAEP

director) within two business days following the expulsion hearing. Tex. Educ.

Code § 37.010.

See special education expulsion form entitled “Step 22 & 23: Letter

to Juvenile Court/JJAEP Enclosing Expulsion Order”

Step 24

Provide written notice of the expulsion to each educator who has responsibility

for (or is under the direction and supervision of an educator who has

responsibility for) the instruction of the student. The notice should also indicate

that the teacher must keep the information confidential except to the extent

provided by state or federal law or risk having his or her certificate revoked or

suspended by the State Board for Educator Certification. Tex. Educ. Code §

37.007(g).

See special education expulsion form entitled “Step 24: Expulsion

Notice to Instructional Educators”

Step 25

If the student was expelled and placed in an alternative setting pursuant to Texas

Education Code § 37.0081, conduct a review of the placement at intervals not to

exceed 120 calendar days. Tex. Educ. Code § 37.0081(e). See Step 20 of the

Special Education DAEP Checklist in this guide for more information on how to

conduct that review.

Step 26

Maintain internal documentation of the expulsion to be used in the annual report

to the Commissioner of Education. Tex. Educ. Code § 37.020.

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EXPULSION APPEAL TO THE BOARD OF TRUSTEES:

Step 27

If the Board’s designee held the expulsion hearing, an appeal may be filed. If an

appeal is submitted, confirm that the appeal was filed in a timely manner in

accordance with local policy.

Step 28

Prepare a transcript from the recording made of the expulsion hearing held at the

level below and attach to it copies of all exhibits made a part of the record at the

hearing.

Step 29

Send the parent/guardian written confirmation scheduling the expulsion appeal;

allow enough time (at least 72 hours) for the parent to prepare.

The written confirmation should:

▪ Be sent by hand delivery with confirmation of receipt. If this is not

practical, send by certified mail return receipt requested and regular mail.

▪ Indicate the date, time, and location of the expulsion appeal.

▪ Briefly explain the appeal procedures.

▪ Inform the student and parent/guardian of the right to have a

representative present at the appeal and inquire whether the

parent/guardian will have an attorney present.

▪ Provide the parent/guardian with a copy of the “record” from the

expulsion hearing that will be presented to the Board of Trustees,

including the transcript of the audio recording, if made.

▪ Include a copy of legal and local policies FOD and/or FNG.

NOTE: If the district is closed and the Board is unable to meet in person due to

weather or health-related emergency or government order, note whether and

how the expulsion appeal will be heard virtually by the Board.

See special education expulsion form entitled “Step 29: Letter to

Parents Scheduling Expulsion Appeal”

Step 30

Arrange to have an audio or audio/video recording (preferably digital) made of

the expulsion appeal or have a court reporter present to create a record of the

proceeding. Check the school district's policy requirements.

Step 31

Arrange to have the district’s legal counsel present at the expulsion appeal if the

student will have an attorney or if the facts of the expulsion are complex.

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Step 32

Post the meeting agenda at least 72 hours before the scheduled Board meeting.

Tex. Gov’t Code § 551.043.

Step 33

If the parent/guardian requests that the expulsion appeal be held in open session,

in accordance with the Family Educational Rights and Privacy Act obtain written

consent from the parent/guardian or eligible student to discuss the student’s

personally identifiable information and education records in open session.

See special education expulsion form entitled “Step 33:

Authorization to Release Education Records in Open Session”

Step 34

At the appeal the Board should be provided with the “record” developed at the

expulsion hearing including, but not limited to, all documents submitted by the

student and administration, relevant discipline referral forms, notices,

correspondence, transcript from the lower level, and other exhibits.

Step 35

At the appeal, the parent/guardian will present arguments in support of

overturning the expulsion or reducing the length of the expulsion, and the

superintendent or designee will present arguments to the Board supporting the

student's expulsion and its length. The Board will make its decision on the appeal

in open session, even if the arguments are made in closed session, and that

decision should be reflected in the official minutes of that meeting.

Have a good quality audio or audio/video recording (preferably digital) made of

the appeal. In addition, consider arranging to have a court reporter present to

create a record of the proceeding, especially if there is a likelihood of a further

appeal to a state court.

Have a foreign language interpreter or an interpreter for the deaf present if

needed to ensure the parent/guardian fully understands the proceeding.