Educators have always walked a line when addressing student misconduct, but that line has recently become more fine. In the past, educators primarily needed to ensure they did not violate their district’s corporal punishment policy and that they followed the intricate rules regarding discipline and special education. (For more on these topics, visit atpe.org/protection.) But this past session, the Legislature passed two bills—Senate Bill 712 and House Bill 3630—that use nearly identical language to prohibit a laundry list of “aversive discipline techniques.”

Aversive means “something disliked.” But isn’t discipline always “disliked”? It wouldn’t be much of a punishment if it weren’t—and that’s why educators need to know what has now been ruled off-limits. Fortunately, most of the prohibited techniques are ones a reasonable educator would not have considered anyway—actions that would have likely resulted in both loss of job and career. Examples of techniques prohibited by the new law are interventions that:

• Are designed to cause pain (other than approved corporal punishment).
• Involve electric shock.
• Involve spraying a student with unpleasant or toxic substances.
• Impair breathing or circulation.
• Secure a student to an object (i.e., taping or tying the student to something).
• Hinder a student’s ability to communicate (i.e., taping the student’s mouth).

These prohibitions are probably no surprise—but the law goes further. You should be especially aware of two new prohibitions. First, the law now prohibits denial of food, water, physical comfort, or access to a restroom. It is common for there to be local policies limiting restroom visits. Educators need to be careful in enforcing those policies so it does not appear the denial is a disciplinary response rather than a simple enforcement of approved campus rules. Withholding snacks because of misbehavior is also a practice that should likely be discontinued.

Second, the law prohibits discipline that “ridicules or demeans a student in a manner that adversely affects or endangers the learning or mental health of the student or constitutes verbal abuse.” Educators should take care considering the broadness of this language. Today’s educators know they must be careful in how they respond to any provocation. Replying “in kind” can cause serious repercussions. The fact of the matter is, educators are held to a higher standard of conduct than students. Educators should consider employing the five-second rule (wait five seconds before responding) to avoid saying something in anger that could haunt them later.

Educators Can Still Maintain Order

Although educators need to be cautious, the commissioner of education has also recently upheld protections provided to educators who use reasonable means to maintain order, overruling Southside ISD’s attempt to terminate librarian Paul Zarsky after a student altercation. Zarsky encountered several eighth grade students in a hallway without permission. The students ignored his commands to leave. Fearing the students were there to fight another student in the hallway, Zarsky proceeded to push the students back to their area. The district argued he should be terminated because he should have handled the situation better. The commissioner disagreed as the evidence showed Zarsky had maintained his self-control, had not degraded the students, and had a reasonable belief he was preventing a student fight. The commissioner stated that a different result would mean “… Texas teachers would have to carefully think whether they should intervene to prevent or stop fights.”

How to Walk the Line

Educators must often make quick decisions in emotional and volatile circumstances. A critical distinction to keep in mind is this: Is an action intended to stop something bad from happening, or is it intended as punishment after something bad has happened? If it is the former, educators have strong protections as long as their actions are reasonable. But if the latter—if the educator wants to “teach” a student not to do something again through punishment—you have much less protection and need to be very careful in your actions.

The legal information provided here is accurate as of the date of publication. It is provided for general purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Eligible ATPE members may contact the ATPE Member Legal Services Department. November 2019.