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SEE YOU IN COURT! - October 2010

October 1, 2010

Bob Bombast, veteran member of the Nutmeg Board of Education, was eager for the expulsion hearings. He had heard through the grapevine about the near riot in the cafeteria at Nutmeg Memorial High School, and it didn’t take a brain surgeon to surmise that the upcoming hearings were related. Bob was looking forward to dispensing some “justice” to the trouble-makers. Indeed, if the bunch of them were thrown out for the year, he mused, the entire student body would learn a lesson. Bob called Penny Pincher, his closest friend on the Board, to make sure that she was going to vote the right way, and she told him she too was ready to throw the book at them.

When Bob arrived at the hearing last evening, he was surprised to see neither students nor parents. When the meeting was convened, the Board quickly moved into executive session, and Mr. Superintendent started passing out papers. “We have good news,” began Mr. Superintendent. “I have a stipulation signed by Joe and his parents. Since he was the ringleader, we focused on him, and we got his parents to agree that he would be expelled. We spared you lengthy hearings by working things out. Please read through the agreement and let me know if you have any questions.”

Bob couldn’t believe his ears or eyes. “Wait a minute,” he interjected. “Expulsions are the Board’s responsibility. You can’t just go agreeing with parents on such matters.” Mr. Superintendent assured Bob that he knew that, and he explained that the stipulations were presented to the Board for its review and approval.

Bob was not mollified, and he told Mr. Superintendent and the other Board members that he is not a rubber stamp for the Administration. Bob’s indignation grew as he read further. In the Stipulation, Joe admitted to violating school rules by throwing food and egging on others to do the same. But the Stipulation provided that Joe would be expelled for only one marking period, and further that notification of his expulsion would be expunged from the cumulative file at the end of the year.

“This won’t do at all,” huffed Bob. The Board members were a little confused as to what to do, and they questioned the provision for expunging the record. Mr. Superintendent explained that Joe’s parents were very concerned that Joe’s already dim chances for college not be further burdened by an expulsion. When they agreed to the expulsion, he explained, they negotiated for the expulsion notification to be expunged before he has to apply to colleges, and Mr. Superintendent had been happy to agree.

“He should have thought of that before he threw the food. I am not inclined to cut this kid any slack at all. I move that Joe be expelled for the entire year. And forget the expunging thing. We need to keep track of students like him.” Mr. Superintendent tried to explain to the Board that a deal is a deal, but Bob shushed him, saying that there was a motion pending. It passed unanimously.

That night, Mr. Superintendent called the parents with the bad news. They did not take it well. Can they really sue, as they threatened?

*        *        *

They can sue, of course, and they may well prevail. The scenario above sets forth some serious due process concerns. Stipulations can serve all parties well, but it is important for all involved to know what the rules are – in advance.

Boards of education are indeed responsible for expulsion decisions, i.e. any exclusion from school privileges for ten days or more. How board members fulfill that responsibility, however, is largely up to the board to decide. Some boards sit as a full board to hear expulsion cases, and others hear such cases through committees of three (even though expulsion requires at least three affirmative votes). The statutes even permit boards of education to delegate responsibility for expulsions to a hearing officer.

Due process is required before a student can be deprived of the right to attend school. Here, the Nutmeg Board of Education made some serious mistakes. A basic element of due process is a decision by an impartial decision-maker. When board members decide expulsion cases, they act as judges. They should make their decisions based on the information presented at the hearing, and they should not decide in advance how they will vote. Bob’s pre-determination, as well as his conversation with Penny, violated Joe Blow’s due process rights. To be sure, prior knowledge of some aspects of a case, as when a board member reads a newspaper report or even hears about the case, does not automatically prevent a board member from discharging his/her obligation appropriately. The key question is whether the board member can decide the case impartially based on the evidence presented at the hearing.

Stipulations can be helpful to expedite and illuminate the expulsion process. The hearing is an opportunity for the student and the administration to present their respective cases. If the family and superintendent reach agreement before the hearing on the facts and even on the recommended disciplinary consequence, the parties can and should present those agreements to the board by stipulation. Since expulsion is a board of education responsibility, however, the board has the final say on the expulsion decision.

Given that fact, it is important that the parties understand exactly how a stipulation will work. Here, the parents agreed to the stipulation expecting that the board would approve it, and apparently they and Mr. Superintendent did not contemplate that the board would not. Typically, such stipulations should be presented to boards of education as an “either/or” proposition for the board either to accept or reject. The Board should not have changed the proposed decision. Rather, when it rejected the proposed stipulation, it should have given both parents and the Superintendent an opportunity to present their evidence and arguments so that the Board could decide the case based on the information presented at the hearing.

Finally, in making expulsion decisions, board members should be aware of a recent statutory change. The general rule is that notification of an expulsion must be included in the student’s cumulative file. However, now boards of education can agree that, for students never previously suspended or expelled, the expulsion period can be shorted and/or notification of expulsion can be expunged if (1) the student meets conditions set by the Board (such as community service) or (2) participates in a program approved by the Board. If the board requires participation in a program, however, the board must pay for the program.  

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