Texas Zero Tolerance
Texas Zero Tolerance
Carrollton Farmers BranchISD

DATE OF INCIDENT: May 15, 2009

In May (2009), an assistant principal at Blalack Middle School in the Carrollton Farmers Branch Independent School District in Carrollton, TX suspended my son, Brad, for three days allegedly for fighting. According to the notice of suspension , that during the period of suspension my son was not to be on any school campuses or attend any school functions or be subject to arrest.

According to Goss v. Lopez (419 U.S. 565, 1976)

• Because a the State extend the right to an education to its citizens, a school State cannot withdraw that right without the “due process of law.”
• “Due process of law “ requires a school disciplinarian must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions.
• A school disciplinarian must respect, and permit the exercise of a student of his Constitutional and statutory rights.
• To avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences, the disciplinarian must takes steps to guard against risk of error. Disciplinarian must take reasonable steps necessary to guard against risk error, provided those the steps can be taken without prohibitive cost or interference with the educational process.
• The Court found that a student facing suspension should, at a minimum , be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.
• The school disciplinarian should consider additional steps to avoid unfair or mistaken suspension including , but not limited to: summoning the accuser, permit cross-examination, and allow to a student present his own witnesses. In more difficult cases, allow counsel.

My son was not afforded due process.

First, Carrollton-Farmers Branch School District is not in compliance with Texas Education Code.

Sec. 37.001. STUDENT CODE OF CONDUCT. (a) The board of trustees of an independent school district shall, with the advice of its district-level committee established under Subchapter F, Chapter 11, adopt a student code of conduct for the district. The student code of conduct must be posted and prominently displayed at each school campus or made available for review at the office of the campus principal. In addition to establishing standards for student conduct, the student code of conduct must:…

(3) outline conditions under which a student may be suspended as provided by Section 37.005 or expelled as provided by Section 37.007;

Sec. 37.005. SUSPENSION. (a) The principal or other appropriate administrator may suspend a student who engages in conduct identified in the student code of conduct adopted under Section 37.001 as conduct for which a student may be suspended.

The Carrollton-Farmers Branch School District Student Code Conduct does not outline the conditions under which a student may be suspension, nor does the code identify conduct for which a student could be suspended. When I requested that the assistant principal indicate in the District Student Code of Conduct where fighting and scuffling was identified has a conduct for which a student could be suspended, he pointed to a laundry list 31 offenses under the heading of General Misconduct. This list includes minor offenses such as violating safety rules, and vulgarity, as well as, fighting and scuffling. Separately, the Student of Code of conduct also lists 24 possible disciplinary interventions including “out of school suspension.” Neither lists ranks or classifies misconduct or disciplinary intervention by severity or appropriateness. There is no correlation made between an act of misconduct and a possible disciplinary intervention. It is impossible to identify any conduct for which a student may or may not be suspended. The Board of Trustees of the Carrolton- Farmers District did not identify , in the student code of conduct, any conduct for which a student may be suspended, thus, NO principal or other appropriate administrator may suspend a student. Any suspension of a student is a violation of state law and a violation of due process.

Due process requires that the school disciplinarian establish that my son committed a violation of the student code of conduct.

Although my son insisted that the fight was “pretend ”, a third student, who witness the alleged fight and events leading to the alleged fight, did not observe any provocation for the alleged fight, nor did he state that he believe the incident was pretend or playful. The only other witness interviewed was a school security guard who witness the very end of the alleged fight. He observed my son in choke hold and stated that Brad’s face was flushed and had red marks on his neck.

According to the Code of Conduct Violation Report prepared by the assistant principal, “Witnesses states that the other student hit Brad, Brad hit the other student, then the other student choked Brad.” None of witnesses statements indicate that my son was a willing participant in a fight, but rather a victim of an unprovoked attack, and acted in self-defense.

I met with the assistant principal immediately after his decision to suspend my son. He informed me that he did inquire of Brad as to if he was assaulted. He stated that Brad only maintain that the incident was pretend. However, the assistant principal refuse state if he concluded if the incident was “pretend” or not. The assistant principal did not reach a conclusion in the Code of Conduct Violation report as to incident was “pretend” or was not “pretend.” I pointed out that the statement by my son that incident was “pretend” did not constitute him admitting that he was a willing participant. However, my son’ statement that the incident was “pretend” was admission that he did not intend to cause physical harm to another individual or subdue against will another individual. And, that even if my son perceived the incident as pretend , it did not preclude my son being a victim of an assault. I stated that the description of the incident in the Code of Conduct Violation Report was consistent with an assault and a act of self-defense.

Due process requires that a fair minded school disciplinarian take reasonable steps to prevent unfair and mistaken findings of misconduct. Minimally, the assistant principal should have sought out additional witnesses to the incident itself. Since the incident occurred in a crowed hallway during a class passing period, there were numerous objective witnesses that could have been interviewed by the assistant principal for their impressions. The assistant principal could have interview students who are familiar with both my son and the other student to determine relationship: adversaries, friends, victim, assailant. None of witnesses interviewed by the assistant principal , were question immediately after the incident. Witnesses had an opportunity to engage in conclusion and intimation. Because my son’s disability, the assistant principal should have sought assistance from other school professionals that have established a “trust” relationship with him. My son’s statements to the assistant principal were terse and without elaboration. A fair minded school disciplinarian, in this situation, would consult the grade level counselor with an established relationship with a student , not to determine the appropriate disciplinary intervention, but as resource. In this case, the grade level counselor may have been useful by meeting with Brad and having him open up about the incident. According to Goss v. Lopez (419 U.S. 565, 1976) Disciplinarian must take reasonable steps necessary to guard against risk error, provided those the steps can be taken without prohibitive cost or interference with the educational process.

I informed the assistant principal that my son was recently hospitalized for 6 days for clinical depression and was currently under treatment of a psychiatrist and a psychotherapist. I expressed my belief that the assistant principal needed to consider my son’s medical condition and the adverse impact of his decision on my son’s health. My son did not have Individual Education Plan, he was never evaluated under IDEA. Neither my wife or myself were ever informed of our right to request an evaluation. It is my firm belief that my son depression would qualify as disability under the IDEA and Rehabilitation Act.

The assistant principal’s failure to consider my disability and claim of self defense as mitigating factors was a violation of the student code f condct. Carrollton-Farmer’s Branch Student Code of Conduct requires, “Interventions will be correlated to the seriousness of the offense, District Code of Student Conduct, and statutory requirements as well as the student’s age and grade level, the frequency of misbehavior, the student’s attitude, the effect of the misconduct on the school environment, the student’s disability, and claims of self-defense.”

Recently, 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. Because the school district’s student code of conduct required that the administrator consider intent or lack of intent as a mitigating actor and the administrator failed to so the expulsion was reversed. I believe that my son’s suspension should be reversed because the administrator fail to consider my son’s disability and claims of self defense as mitigating factors. Tarkington ISD v. Ellis

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