Appeals Court Dismisses Suit Over Student’s DAEP Placement and Drill Team Dismissal

The parents of Northwest Independent School District student, C.R., sued the school district after her assignment to an alternative school and her dismissal from the drill team.

On February 14, 2020, a canine-assisted search team found a substance alleged to be marijuana in C.R.’s car, which was located in the parking lot of her high school. C.R. maintained that she was not aware of the presence of the drug and had no intent to bring marijuana onto the campus. Rather, she alleged that the vehicle in which it was found had not been cleaned since it was purchased from an individual two months prior to the search and that it was “most likely” there when she purchased the car.

Northwest ISD’s “zero tolerance” policy resulted in C.R.’s nine-week assignment in Northwest ISD’s Disciplinary Alternative Education Program (DAEP).  C.R. lost her place on the school drill team, her access to communication accounts as a drill team officer was revoked for the remainder of the year, and she was deemed ineligible to try out for a position on the drill team for the 2020–2021 school year.

The parents filed suit seeking a temporary restraining order and temporary injunction on the basis that Northwest ISD unconstitutionally applied their disciplinary policies by not considering certain mitigating factors, such as lack of intent and the student’s disciplinary history. The suit claimed the district violated the Texas Constitution by depriving C.R. of rights including freedom of speech, freedom of association, and procedural and substantive due process.

Northwest ISD sought dismissal of the suit.  In addition to arguing why injunctive relief was inappropriate, Northwest ISD contended that the trial court did not have jurisdiction because (1) the parents could not appeal disciplinary decisions pursuant to Chapter 37 of the Texas Education Code, and (2) the parents failed to plead constitutionally viable causes of action.

The trial court granted the parents’ temporary restraining order and denied Northwest ISD’s plea to the jurisdiction. Northwest ISD appealed.  The appeals court observed that, under Chapter 37, a student can be placed in a DAEP, which is a disciplinary option without expulsion, if the student possesses an illegal controlled substance. Because C.R. was assigned to DAEP, Section 37.009 of the Texas Education Code governed and states that a disciplinary board’s decisions are final and cannot be appealed. Thus, the appeals court held that the trial court had no jurisdiction to consider C.R.’s claims as they relate to Northwest ISD’s decision to place C.R. in DAEP.

The court of appeals also concluded that C.R.’s constitutional claims were not viable. To support their claims of violation of their right to free speech and freedom of association, the parents complained of C.R.’s inability to participate in certain drill team activities. However, there were no factual allegations that C.R. was engaged in public speech or was denied the ability to associate with members of the drill team.

Moreover, students do not possess a constitutionally-protected interest in their participation in extracurricular activities. Participation in drill team is not a First Amendment right. Neither C.R.’s freedom of speech nor her freedom of association is implicated by the disciplinary actions taken by the high school to remove her from the drill team.

The parents also claimed that they have rights in (1) C.R.’s attendance at her normal and customary high school and classes; (2) their monetary investment in drill team; (3) C.R.’s good name and reputation; and (4) the policies and procedures in the school district’s student handbook. They claim that these property rights were implicated and deserved the constitutional protection of due process.

According to the appeals court, transferring a student from regular classes to an alternative education program does not impact a protected property interest implicating due process concerns.  The parents’ claim that they have a protected interest in their monetary investment in drill team also lacked merit. There is no fundamental right to participate in extracurricular activities.

The other claims, likewise, failed as reputation alone is not entitled to due process protection and disciplinary actions involving mere placement in an alternative education program are not reviewable by a court of law. The court of appeals reversed the trial court’s denial of Northwest ISD’s plea to the jurisdiction and rendered judgment dismissing the parents’ suit. The case is Nw. Indep. Sch. Dist. v. K.R., No. 02-20-00067-CV, 2020 WL 4907331 (Tex. App. Aug. 20, 2020).

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