Administrators are sometimes faced with conduct by students that may meet the definitions of hazing, assault and/or harassment. What discretion does an administrator have in naming the offense and issuing discipline for conduct qualifying as multiple offenses? This article serves as a brief discussion to guide administrators in these situations.
What is hazing?
Hazing is defined as “any intentional, knowing, or reckless act, occurring on or off the campus of an educational institution, by one person alone or acting with others, directed against a student that endangers the mental or physical health or safety of a student for the purpose of pledging, being initiated into, affiliating with, holding office in, or maintaining membership in an organization.”[1] The term includes:
µ any type of physical brutality such as whipping, beating, striking, branding, electronic shocking, placing of harmful substance on the body or similar activity;[2]
µ any type of physical activity, such as sleep deprivation, exposure to the elements, confinement in a small space, calisthenics, or other activity that subjects the student to unreasonable risk of harm or that adversely affects the mental or physical health or safety of the student;[3]
µ any activity involving consumption of a food, liquid, alcoholic beverage, liquor, drug, or other substance that subjects the student to an unreasonable risk of harm or that adversely affects the mental or physical health or safety of the student;[4]
µ any activity that intimidates or threatens the student with ostracism, that subjects the student to extreme mental stress, shame, or humiliation that adversely affects the mental health or dignity of the student or discourages the student from entering or remaining registered in an educational institution, or that may reasonably be expected to cause a student to leave the organization or the institution rather than submit to the prohibited acts;[5]
µ any activity that induces, causes, or requires the student to perform a duty or task that involves a violation of the Penal Code.[6]
What is assault?
Assault occurs when a person:
1) “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.”[7]
What is harassment?
Harassment is defined in the Education Code as: “threatening to cause harm or bodily injury to another student, engaging in sexually intimidating conduct, causing physical damage to the property of another student, subjecting another student to physical confinement or restraint, or maliciously taking any action that substantially harms another student’s physical or emotional health or safety.”[8] Local policy at FFH expands on this definition in the context of harassment based on sex or other protected class or characteristic.
Clearly, the offenses of hazing, harassment and assault can all involve the same or similar conduct. A student could engage in one incident of misconduct that qualifies as all three offenses. A hazing offense, however, is most likely to arise in relation to an extracurricular activity, including interscholastic athletics, cheerleading, drill or dance team, and so on.
What can administrators do?
Public school principals are not criminal prosecutors. But they may often feel like prosecutors when making decisions about school discipline. So principals might be well-served by thinking a little like a prosecutor: prosecutors have wide latitude and discretion to charge a person with one offense or multiple offenses they determine to be appropriate for the circumstances involved in a criminal situation. The important thing for administrators to remember is that all of the offenses of hazing, harassment, and assault need to be taken into account when assessing discipline for conduct in an extracurricular activity.
Why, you ask? Because much like a prosecutor, disciplinarians have the same latitude and discretion to name the offense and issue the appropriate disciplinary action. For example, if an assault results in bodily injury (“I experienced pain.” or “It hurt.”) then the Education Code indicates a mandatory placement in DAEP is the appropriate response.[9] However, the offense does not necessarily have to be identified or named as an assault. This permits the administrator to assess the whole picture and determine what the offense(s) should be named and then assess appropriate discipline based upon the specific circumstances.
Hazing and harassment can be discretionary DAEP offenses if listed as such under the Student Code of Conduct. Hazing, as a criminal offense, is a Class B misdemeanor if it does not cause serous bodily injury.[10] If the hazing results in serious bodily injury, the criminal penalty is enhanced to a Class A misdemeanor.[11] Keep in mind, however, an assault resulting in serious bodily injury is a mandatory expulsion offense. Circumstances may warrant that conduct be identified as hazing with a suspension, in-school suspension, or other discipline management techniques as the resulting disciplinary action as opposed to DAEP placement. Remember, too, that District decisions on discipline are not necessarily constrained or dictated by decisions made in the juvenile or criminal justice systems.
Considerations
With the above laws in mind, school administrators must evaluate the circumstances surrounding the conduct, name the conduct and determine the appropriate disciplinary sanction to be taken for the conduct. Additionally, the Texas Education Code mandates that school administrators take into consideration the factors of self-defense, intent or lack of intent, a student’s disciplinary history, or a disability that substantially impairs a students’ capacity to appreciate the wrongfulness of the conduct in determining discipline.[12] Most Codes of Conduct also specify that additional factors will be in play, such as the seriousness of the offense, the student’s attitude, and the effect of the conduct on the school environment.
Administrators are obligated to keep these factors in mind and consider them as they assess discipline. No one factor is required to be given any more weight than any other factor. When the misconduct involves extracurricular activities, then “hazing” is likely to be in the mix. If circumstances warrant a lesser disciplinary action be taken, then disciplinarians have the latitude and discretion to identify and name the offense permitting the lesser disciplinary penalty. Unfortunately, unlike prosecutors, administrators may have to deal with the blowback from the victim’s parents if the disciplinary action taken is not considered consequential enough by the parents. This may take the form of a complaint against the assistant principal or principal for failing to implement the Student Code of Conduct, but the victim’s parents cannot “appeal” the discipline given to another student.
Administrators should also keep in mind that employment actions may need to be taken against employees who fail to report knowledge of a hazing event beforehand or firsthand knowledge of a hazing incident that has occurred.[13] The Texas Education Code mandates this information to be reported to an appropriate official of the institution, failure to report is a Class B misdemeanor.[14] This situation could arise in relation to a coach or other adult employee involved in extracurricular activities.
This article serves only as a reminder of the options available to school administrators when assessing student conduct involved in extracurricular activities and is in no way suggesting that hazing and harassment are always better options for identifying certain types of student conduct. Rather these are simply available options for administrators to keep in mind. Each situation has to be assessed and evaluated on a case-by-case basis and, in any given case, sufficient circumstances certainly may exist to warrant placement in DAEP.
What's New
10 Things You Need to Know Before You Build Webinar
April 22 & 29, 2010
12:00 - 1:00 pm
$100 per computer
In this one hour webinar you will learn about bond publicity, seeking and taking the steps that will allow you to hit the ground running once you pass your bond.
Click here for more information and to register online.
Trustee Manual
Updated 2010 Edition Now Available
For more information and to order online, click here.
10th Annual
Schwartz & Eichelbaum and Equity Center
Seminar on School Finance and Legal Issues
July 29-30, 2010
Austin Marriott North
Click here for more information and to register online.
Schedule Your In-Service Training
All of our on-site trainings are conducted by attorneys who are skilled practitioners and presenters. Whether you choose from our list or ask us to design a new program just for you, we guarantee your satisfaction.
For more information or to schedule a training, call our toll free number 800-488-9045, or send an e-mail to our client relations team from our Contact form.
