In testimony to the Texas Senate Education Committee, IDRA Chief Legal Analyst Paige Duggins-Clay, J.D., urged lawmakers to strengthen student due process protections following implementation of House Bill 6. The testimony identifies gaps in Texas school discipline procedures, including limited access to evidence and inconsistent standards for disciplinary decisions, and recommends seven safeguards to ensure fair treatment of students and families.
Resource from the Intercultural Development Research Association (IDRA), a nonprofit advancing education equity.
Dear Chair Campbell and Honorable Members of the Committee:
My name is Paige Duggins-Clay, J.D., and I am the chief legal analyst at IDRA, an independent, non-partisan non-profit committed to achieving equal educational opportunity for every child through strong public schools that prepare all students to access and succeed in college. IDRA appreciates the opportunity to provide testimony regarding the implementation and impact of House Bill 6 and student discipline policies in Texas public schools.
During the 89th Texas Legislature, IDRA and many of our partners opposed HB 6 because it expanded schools’ authority to remove students from their classrooms and regular educational settings without providing corresponding protections to ensure disciplinary decisions are fair, reliable and educationally appropriate. We cautioned that expanding exclusionary discipline would particularly harm students who have historically experienced disproportionate rates of school discipline and would undermine efforts to build safe, supportive schools.
Now that HB 6 is law, those concerns are even more urgent. Our anecdotal experience and preliminary analysis of available data show that our state’s most vulnerable students – very young students, students with disabilities, students with limited economic means, and students from historically marginalized backgrounds – are bearing the brunt of HB 6’s impact.
The Legislature should closely examine the law’s implementation and take steps to ensure that no student is unnecessarily removed from their classroom and that families have meaningful due process protections when significant educational consequences are at stake.
IDRA recognizes that educators must have tools to respond when student behavior threatens safety or significantly interferes with teaching and learning. But expanding removal authority does not eliminate the need for fair procedures. It makes those procedures more important.
Terms like “disruptive” and “unruly” necessarily require judgment. The same behavior may be interpreted differently depending on the student, educator, classroom and circumstances. When subjective determinations can result in exclusion from a regular classroom or school, students and families need meaningful mechanisms to understand and challenge the factual basis for those decisions.
Unfortunately, Texas law provides relatively limited procedural protections for students until they face expulsion.
For a removal that may result in DAEP placement, Texas law generally requires a conference within three class days. At that conference, the student is entitled to written or oral notice of the reasons for removal, an explanation of the basis for the removal and an opportunity to respond. Tex. Educ. Code § 37.009(a). Those protections are important, but they leave substantial gaps.
Chapter 37 does not generally guarantee a student facing DAEP placement the right to inspect the underlying evidence before the conference, the assistance of an advocate or attorney, an impartial adjudicator independent from the underlying disciplinary decision, or a clearly articulated statewide evidentiary standard for determining whether the alleged conduct occurred.
The contrast is particularly important because disciplinary decisions often involve contested facts. Students may dispute what they said, what they intended, whether they participated in an incident, whether conduct was self-defense, or whether an administrator’s characterization of their behavior accurately reflects what occurred. A student cannot meaningfully respond to an allegation if the student does not know the evidence supporting it.
Due process should not become more robust only after the stakes have escalated to expulsion.
Due process is sometimes treated as an obstacle to effective school discipline. It should instead be understood as a tool for better decision-making school-parent partnership.
Fair procedures help school leaders determine what actually happened, distinguish serious misconduct from misunderstandings or developmentally appropriate behavior, identify mitigating circumstances, and select appropriate interventions. They also give students and families confidence that consequential decisions are based on evidence rather than assumptions.
Texas already recognizes some of these principles. Before ordering certain disciplinary consequences, decision-makers must consider mitigating circumstances identified in the Education Code. HB 6 also created additional opportunities for parent involvement and behavioral agreements and established an appeal process for certain teacher removals. The Legislature should build on those protections and establish a stronger statewide floor for student due process.
IDRA recommends that Texas strengthen Chapter 37 and encourage school districts to adopt policies incorporating the following protections.
IDRA is available for any questions or further resources that we can provide. Thank you for your consideration. For more information, please contact Paige Duggins-Clay, J.D., chief legal analyst, at paige.duggins-clay@idra.org.
IDRA is an independent, non-profit organization led by Celina Moreno, J.D. Our mission is to achieve equal educational opportunity for every child through strong public schools that prepare all students to access and succeed in college.
House Bill 6 expanded Texas schools’ authority to remove students from regular classrooms and educational settings. Although the law established some additional opportunities for parent involvement, behavioral agreements and appeals of certain teacher removals, IDRA argues that it did not provide sufficient corresponding due process protections for students facing significant disciplinary consequences.
Under Texas Education Code Section 37.009(a), students facing removal that may result in disciplinary alternative education program (DAEP) placement generally must receive a conference within three class days. Students are entitled to notice of the reasons for removal, an explanation of the basis for the removal and an opportunity to respond. However, Texas law does not generally guarantee advance access to the underlying evidence, an independent decision-maker or a statewide standard of proof.
Access to evidence allows students and families to understand and respond to disciplinary allegations. Students may dispute the facts of an incident, whether they participated, whether they acted in self-defense or whether their behavior was accurately characterized. IDRA recommends that students receive evidence sufficiently in advance of a disciplinary hearing to prepare a meaningful response.
IDRA’s testimony raises concerns that very young students, students with disabilities, students with limited economic means and students from historically marginalized backgrounds may experience disproportionate impacts from expanded exclusionary discipline. These concerns are based on anecdotal experience and preliminary analysis of available data.
IDRA recommends seven reforms: making exclusionary discipline a last resort, requiring timely and understandable notice, establishing consistent evidence standards, providing advance access to evidence, considering mitigating circumstances, documenting disciplinary findings and supporting students’ successful return to regular educational placements.
