An off-campus rock-throwing incident in San Marcos, Texas, has turned into an important legal battle over school discipline and the constitutional rights of students.
At issue is a provision in last year鈥檚 rewrite of the Texas education code that is designed to keep students suspected of serious off-campus crimes out of regular classrooms.
Nationwide, some school officials have been frustrated to learn they could not prevent students charged with crimes as serious as murder from attending class when the incidents were not school related.
The Texas law provides that 鈥渁 student shall be removed from class and placed in an alternative education program ... if the student engages in conduct punishable as a felony.鈥�
The law does not require the student to be convicted or even charged with a felony before being removed. It applies if the student has merely been implicated in such a crime.
First Test
Timothy Nevares, a 15-year-old sophomore at San Marcos High School, has become the law鈥檚 first legal test. On Jan. 23, Mr. Nevares allegedly threw gravel and rocks at a car and injured a passenger. The driver, who apparently knew Mr. Nevares, reported the incident to police.
Mr. Nevares has not been charged with any crime in connection with the incident, said his lawyer, John Bennett. School officials said they believe the matter is still under review.
Mr. Bennett said Mr. Nevares and a friend were being harassed by the driver of the car as they walked down the street and they threw gravel in self-defense.
A separate Texas law requires police to notify school officials when students are involved in a crime. On Feb. 12, police reported to San Marcos district officials that Mr. Nevares was under investigation for aggravated assault, a felony.
The next day, school officials informed the boy that, as a result, he would be removed from his regular classes and placed in an alternative-education program known as Rebound. The boy鈥檚 father, Dan Nevares, sought a hearing on the matter but was told that the law did not authorize one.
The family filed a lawsuit in a state court seeking a temporary injunction and challenging the constitutionality of the law. The school district had the case moved to U.S. District Court in Austin.
On March 1, U.S. District Judge James R. Nowlin granted the plaintiffs鈥� request for a temporary injunction barring the removal of the boy from his regular classroom. The judge also issued a preliminary ruling on the merits of the case that has worried state officials and school district lawyers.
鈥楢 Form of Punishment鈥�
Judge Nowlin said the Nevareses have a substantial likelihood of winning their claim that the law violates their son鈥檚 14th Amendment right to due process.
In its requirement that school officials immediately place a student suspected of off-campus felonies in alternative education, the law contains no provision for the student to receive notice or a hearing, the judge wrote.
He cited a 1975 U.S. Supreme Court ruling that students facing suspensions of up to 10 days be given at least minimal notice and hearing procedures. In that ruling, Goss v. Lopez, the high court said students have protected property and liberty interests in public education that merit the protection of due process of law.
Judge Nowlin ruled, on a preliminary basis, that the Supreme Court鈥檚 standard in that case applies to alternative placements.
鈥淩emoval of a student from regular high school classes for placement in alternative education is a form of punishment,鈥� he wrote.
The judge鈥檚 ruling concerned some legal experts and state lawmakers, who fear it could lead to more legal challenges to student-discipline decisions.
鈥淲e are not denying this young man his constitutional right to a free public education,鈥� said State Rep. Ric Williamson, who helped write the provision. 鈥淲e are regulating the setting. Due process does not apply to where the child is placed.鈥�
Mr. Nevares鈥� lawyer disagreed.
Timothy Nevares has been an A and B student who has never been in trouble at school, Mr. Bennett said. Suddenly, without any charges filed, school officials want to place him in a disciplinary program with 鈥渁ll the little badasses,鈥� he said.
鈥淪o is that constitutional?鈥� he asked. 鈥淐an you punish someone like this based on an accusation alone?鈥�
The Texas Education Agency, the Texas Association of School Boards, and other groups plan to file briefs with Judge Nowlin opposing his preliminary ruling. A final ruling is likely to be several months away.
