  .       .




Honorable J. W. Edgar                 Opinion No. M- 395
Commissioner of Education
Texas Education Agency                Re:   Clarification of
201 East 11th Street                        Attorney General
Austin, Texas 78711                         Opinion No. M-332,
                                            concerning whether
                                            a school dlatrict
                                            may suspend a
                                            student for certain,
                                            conduct in the ab-
                                            sence of any policy
                                            or rule promulgated
                                            covering such con-
Dear Dr. Edgar:                             duct.
     This will acknowledge receipt of your request for
clarification of the followin statement made In Attorney
General Opinion No. M-332 (19f9):
           II     It ia noted that prior to
        Novembir.12, 1968, there was no pol-
        icy concerning dangerous drugs and
        narcotics; It la our opinion that
        the board of trustee8 would have no
        authority to expel a student for
        narcotic-connected offenses occur-
        ring prior to that date."
       r research indicates that a student may be aus-.
      9
pended from school only If he ha8 performed an act which
i8 forbidden by rule, regulation , or statute. An ex-
cellent discussion on this subject is contained in a
general order, covering judicial standards of procedure

   IIn our previous opinion, M-332, the word "expel"
was used Interchangeably with "suspend." We will
use the word "suspend" throughout this opinion in
deference to its usage in Article 2904, Vernon's
Civil Statutes.


                            - 1958-
                                                    1      .




Honorable J. W. Edgar, Page 2 (M- 395   )


and substance applicable to student discipline in tax
supported schools of higher education. The decision
was handed down by the United States District Court for.
the Western District of Missouri, four federal judges
         and reported in 45 Federal Rules Decisions
::yt"s:;t. 18, 1968). Following certain definitions
and the outlining of lawful missions of tax supported
schools, this court decision undertakes a discussion
of student discipline. Among other substantive stan-
dards the following appear3:
                        .   .   .

           "An institution may establish
        appropriate standards of conduct
        (scholastic and behavioral) in
        any form and manner reasonably
        calculated to give adequate notice
        of the scholastic attainments and
        behavior expected of the student.
           "The notice of the scholastic
        and behavioral standards to the
        students may be written or oral,
        or partly written and partly oral,
        but preferably written. The stan-
        dards may be positive or negative
        in form,


           "In severe cases of student
        discipline for alleged miscon-
        duct, such as final expulsion,
        indefinite OP long-term suspen-
        sion, dismissal with deferred
        leave to reapply, the instltu-
        tion Is obligated to give to
        the student minimal procedural
        requirements of due process of
        law. The requirements of due process
        do not demand an inflexible
        procedure for all such cases.
        'But "due process" unlike some
        legal rules, Is not a technl-
        cal conception with a fixed
        content unrelated to time,
        place and circumstances.'
                            -1959-
Honorable J. W. Edgar, Page 3 (M- 395 )


        Three minimal requirements apply
        In cases of severe discipline,
        growing out of fundamental con-
        ceptions of fairness implicit In
        procedural due process. First,
        the student should be given ade-
        quate notice in writing of the
        specific ground or grounds and
        the nature of the evidence on
        which the disciplinary proce-
        edings are based. Second, the
        student should be given an op-
        portunity for a hearing in which
        the disciplinary authority pro-
        vides a fair opportunity for
        hearing of the student's posi-
        tion, explanations and evidence.
        The third requirement is that
        no disciplinary action be taken
        on grounds which are not sup-
        ported by any substantial evi-
        dence. Within limits of due
        process, institutions must be
        free to devise various types
        of disciplinary procedures rel-
        evant to their lawful missions,
     ,, consistent with their varying
        processes and functions, and
        which do not impose unreason-
        able strain on their resources
        and personnel."
     While the above legal standards.are held to apply
to educational institutions of higher education, we
believe they~are equally applicable in the Texas public
school system, wherein the right to attend school Is
assured to all students within certain age limits and
attendance is compulsory until the age of seventeen.
     In Corpus Juris Secundum, a discussion of the
"CONTROL OF PUPILS AND DISCIPLINE" appears under Schools
and School Districts, Sections 493 through 503. In
this discussion, it la made clear that a teacher has many
rights in dealing directly with a pupil and exercising
"parental" discipline at the time of Improper conduct,
but that superintendents and principals control teachers;
and school boards must exercise their power by establish-
ing rules, regulations, and policies for the discipline

                         -1960-
Honorable J. W. Edgar, Page 4 (M-   395)



and control of pupils,
      The general rule is that '. . the school board
which by statute has the general charge and superin-
tendence of the public schools has power to adopt
appropriate and reasonable rules and regulations for
the discipline and management of such schools, such
as a rule requiring that there shall be prompt at-
tendance, diligence in study and proper deportment."
79 C.J.S. 443, Schools & School District, Sec. 494c;
Wilson v. Abilene Indep. School Dist., 190 S.W.2d
mb (T     Ci A       45, error ref w.m.)* Bozeman v.
MorrowTx34 g:W!P2d1&+ (Tex.Civ.App. 193; no writ)
m       Indep. School Dist. v. Andrews, 335 S.W. 2d f
8ob [T    Ci A     1960, no writ); and14 A.L.R. 3d
1201 cf~~otXZj       The authority of school trustees
to enforce reasonable rules and regulations by reason-
able and proper punishment includes the right to
susnend a pupil for persistent violation of rules and
regulations.- 51 Tex.Jur.2d 620, Schools, Sec. 241;
Bishop v. Houston Independent School Dist., 119 Tex.
tiO3, 29 S.W.2d 312 (1930).

     Article 2780, Vernon's Civil Statutes, concern-
ing the authority of Independent School District
Trustees, directs, in part:
           "Said trustees shall adopt
        such rules, regula=,     and
        by-laws as they may deem prop-
          . and the public free schools
        EF'such independent district
        shall be under their control;
        and they shall have the exclu-
        sive power to manage and govern
        said schools, 0 s . *I'
        (Emphasis added.)
     It Is thus apparent that the right of a student to
attend a public school is qualified by the school trustees'
power to make reasonable and necessary rules and regu-
lations, while at the same time such power of the trustees
is also qualified by the necessity to make such rules and'
regulations as It may deem proper.
     It is settled law that a student may be refused
enrollment for failure to comply with a school regulation
banning long hair. Ferrell v. Dallas Indep. School Dist.,
                         -1961-
Honorable J. W. Edgar, Page 5 (M- 395 )


261 F.  supp. 545        affirmed 392 F.2d 697 (5th Clr.),
cert. den. 89                    In the recent case of
Leonard v. School Committee,'349 Mass. 704, 212 N.E.2d
qbtl (19651, upholding the suspension of a student "until
such time as he returns to school with an acceptable
haircut," the student attacked the action of the School
Committee In suspending him because no school regu-
lation had been previously formally adopted and pub-
licized .by the Committee. The Court here recognized
the need of the Committee to thus meet the fundamental
and basic requirement8 of constitutional due process,
yet upheld the Committee's action on the following
ground:
            "We hold that the prlncipal~s
         verbal directive, followed immed-
         lately by a letter and later by
         the ratification of the school
         committee, q atisfles any proce-
         dural requirements exacted by
         statute or b considerations of
         due process.if
     After careful research, we have been unable to find
any authority which would permit a school board to create
and enforce a prohibitory rule, regulation, or policy
Involving suspension from school after the occurrence
of the prohibited conduct. Such anfort     In our opinion
would violate basic and fundamental standards and concept3
of due process and would be illegal and not sustainable
In court. It Is our opinion from the authorities that
In the absence of an existing statute which authorizes
suspension or expulsion by a school board for the pro-
hibited conduct, a school board must first place Into
effect some rule, regulation, or policy prohibiting
such conduct before It may exercise the power of suspen-
sion or expulsion. As pointed out, however, the rule
may be general, informal, or even verbal.
     In Texas, Article 2904, Vernon's Civil Statutes,
makes general provision for the powers of school trustees
over pupils: "They ftrustees amay suspend from the
privileges of schools any pupiifound guilty of lncor-~
rigible conduct, but such suspension shall not extend
beyond the current term of the school."



                         -   1962-
 Honorable J. W. Edgar, Page 6 (M- 395 )



     Article 2898, Vernon's Civil Statutes, further
provides, in part{ for the disciplL:&cgand parole of
certain pupils: 'Any child within the compulsory
school attendance ages who shall be insubordinate, dis-
orderly, vicious or immoral in conduct, or who per-
sistently violates the reasonable rule8 and regula-
tions of the school which he attends, or who otherwise
persistently misbehaves therein 80 as to render him-
self incorrigible, shall be reported to the attendance
officer who shall proceed against such child in the ju-
venile court," That statute further provide3 for a
hearing in court by the judge of the court and for a
parole of the pupil when found guilty by the court,
which is empowered to remove the student from Bchool
and commit him to some agreeable and suitable training
school.
     We hasten to point out that Article 2898 ha3 been
held merely to be an "additional remedy" to that pos-
sessed by the board of trustee8 "in enforcing compliance
with reasonable rule8 designed to bring about proper
discipline in the public schools of this State." Blshoe
v. Houston Independent School Dist., 119 Tex. 403,.29
 . .    312 (19301.
     Unless the remedy provided in Article 2898 Is fol-
lowed, apparently the only statute in thia State author-;
izing student suspension which may be utilized, in the
absence of rules or regulations on the subject ro-
mulgated by the school trustees, is Article 290fi, author-
izing suspension for "incorrigible conduct." Therefore,
absent a school policy, rule or regulation, the only
basis for suspension of a student would be on the stat-
utory ground of incorrigible conduct, which is defined
in law as "Incapable of being corrected, amended, or
improved; with respect to juvenile offenders, unmanage-
able bv narents or guardians." Black's Law Dlctionarv.




                          -1963-
Honorable J. W. Edgar, Page 7 (M- 395 )


     In narcotic-connected cases, often the sole act of
mere possession or the mere use in a single Instance
la made a criminal offense. See Article 725b, Section
2(a), Vernon's Penal Code. Yet being guilty of such
an offense, even by final judgment of conviction, does
not render a student, as a matter of law, guilty of
"Incorrigible conduct," within the legal definition as
above set out, so as to authorize suspension of the student
from school. This, therefore, was the basis of our state-
ment in Attorney General Opinion No. M-332 (1969) that
since there was no school policy, rule, or regulation
concerning drugs or narcotics prior to the date mentioned,
the board of trustees was without authority to expel
a student for the mere violation'of the narcotics law,
whether found guilty by a court or by school authorities.
Of course, if the particular violation was based on a
finding of habitual possession, sale, OP use, etc., such
as to render the person guilty of lncorrlgible conduct,
then there would be a basis to suspend the student.
     In view of the foregoing considerations and in order
to clarify this matter, we conclude that the Board of
Trustees is without authority to suspend a student for
any act or conduct unless prior thereto the Board has
placed In effect a rule, regulation, or policy generally
covering such act or conduct or unless the act or conduct
constitutes "incorrlgible conduct" in violation of Article
2904. The dlscipllnary policy, rule, or regulation may
be a general one, or informal, or even verbal, so long
as it fairly apprises the student of the type of pro-
hibited conduct for which he may be suspended from school.
As stated next above, the disciplinary policy, rule or
regulation may be a "general one." To illustrate: A
school policy, rule or regulation that provides for the
suspension of a student who violates the Penal laws of
Texas, of the grade of a felony, would authorize the
suspension of a student who is guilty of violating our
penal laws relative to narcotic drugs. Article 725 b,
V.P.C.




                         -1964-
Honorable J. W. Edgar, Page 8 (M- 395)


                    SUMMARY
           The School Board of Trustees
        is without authority to suspend
        a student for any act or conduct
        unless, prior thereto, the Board
        has promulgated a rule, regula-
        tion, or policy generally cover-
        ing such act or conduct for which
        the student is subject to being
        suspended or unless the act or
        conduct constituted "incorrigible
        conduct" in violation of Article
        2904, Vernon's Civil Statutes.
        Such rule, regulation or policy
        may be informal, preferably writ-
        ten but may be verbal, so long
        as It fairly apprises the stu-
        dent of the type of prohibited
        conduct for which he may be sus-
        pended from school.

                              Very   ruly yours,
                                 k




Prepared by Howard M. Fender
,Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Bill Allen
John Banks
Robert Darden
Tom Bullington
W, V. Geppert
Staff Legal Assistant
Hawthorne Phillips
Executive Assistant
                          -1965-
