Presumed Guilty

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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's 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 "a student shall be removed from class and placed in an alternative education program . . . if the student engages in conduct punishable as a felony." 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.

Timothy Nevares, a 15-year-old sophomore at San Marcos High School, has become the law's first legal test. On Jan. 23, Nevares allegedly threw gravel and rocks at a car and injured a passenger. The driver, who apparently knew Nevares, reported him to police. According to John Bennett, Nevares' lawyer, the boy has not been charged with any crime in connection with the incident. Bennett says Nevares and a friend were being harassed by the driver of the car as they walked down the street, so they threw gravel in self-defense.

Under a separate Texas law, police must notify school officials when students are involved in a crime. On Feb. 12, police reported to San Marcos district officials that 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's father, Dan Nevares, sought a hearing on the matter, but he was told that the law did not authorize one.

The family filed suit in a state court seeking a temporary injunction and challenging the constitutionality of the law. At the request of the school district, the case was transferred to the U.S. District Court in Austin.

On March 1, U.S. District Judge James Nowlin granted the plaintiffs' 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.

Judge Nowlin said the Nevareses have a substantial likelihood of winning their claim that the law violates their son's 14th Amendment right to due process. Because the law requires school officials to immediately place a student suspected of off-campus felonies in an alternative education program, it does not give students adequate notice or the opportunity for 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 vs. 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's standard in that case applies to alternative placements. "Removal of a student from regular high school classes for placement in alternative education is a form of punishment," he wrote.

The ruling concerns some legal experts and state lawmakers, who fear it could lead to more legal challenges of student discipline decisions. "We are not denying this young man his constitutional right to a free public education," says State Rep. Ric Williamson, who helped write the Texas provision. "We are regulating the setting. Due process does not apply to where the child is placed."

Bennett, Nevares' lawyer, disagrees. The boy, he says, has been an A and B student who has never been in trouble at school. Suddenly, without any charges being filed, school officials want to place him in a disciplinary program with "all the little bad asses," he says. "So is that constitutional? Can you punish someone like this based on an accusation alone?"

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 on the matter is most likely several months away.

--Mark Walsh

Vol. 07, Issue 08, Page 1-24

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