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SEE YOU IN COURT! - April 2016

CABE Journal

April 2016

Authors: Thomas B. Mooney

The Nutmeg Board of Education has not expelled a student for over two years.  Not because Nutmeg students are so compliant, however, but rather because the Board appointed a hearing officer two years ago to conduct expulsion hearings on its behalf.  But when Mr. Superintendent called the duly-appointed hearing officer last week to schedule an expulsion hearing, he found out that the hearing officer is away on vacation and will not be back for another three weeks.  Mr. Superintendent then called Ms. Chairperson to find out whether the Board wanted to appoint another hearing officer.

“No way!” responded Ms. Chairperson.  “We will conduct the hearing ourselves.  It has been an age since the Board has done an expulsion hearing.” 

“Suit yourself,” said Mr. Superintendent.  “Typically, Ms. Board Attorney represents the Administration at expulsion hearings before the hearing officer.  Do you think that the Board will need a lawyer too?”

Ms. Chairperson shot back, “We definitely need a lawyer, and Ms. Board Attorney is ours.  I would think that you could handle a hearing on your own, but if you really need the help, you had better find yourself a new lawyer.”

Mr. Superintendent went ahead and retained separate counsel, and he and Ms. Chairperson agreed to schedule the hearing for last evening.

The Board members were all on time for the hearing, eager to hear the story.  But they were disappointed when Mr. Superintendent announced at the beginning of the hearing that he had worked out a deal with the student’s family and their lawyer, local legal scourge Bill Alot, who was also present on behalf of Sally Student. 

“Sally Student made a serious mistake when she brought Vicodin pills to school and started passing them out like Necco wafers,” Mr. Superintendent explained to start the hearing.  “We recognize that her conduct triggers the mandatory expulsion provisions of the law.  However, Sally is good student, and we have all agreed that she will be expelled for the rest of the school year and will be able to return in the fall.  At this point, we simply need the Board’s stamp of approval.”

“Don’t forget the expungement part,” Attorney Alot reminded Mr. Superintendent.  “Sally was framed, but we are willing to go along with this stipulation as long as Sally can say on her college application that she was never expelled.”

Veteran Board member Bob Bombast couldn’t hold back any longer.  “So did Sally pass out Vicodin out or not?  And are you asking that we just play along here so that Sally can lie on her college applications?  I need more information!”

“I agree.” interjected Board member Mal Content.  “We have some judgments to make, and we have to hear the full story.  For example, I want to ask Sally if she took any money.  Also, did any of the students take the Vicodin?”

“Wait a minute!” Attorney Alot protested.  “We came here as a formality.  All bets are off if we are going to answer questions.”

Does the Board have the right to question Sally even though a deal was struck?

*        *        *

When students are excluded from school for more than ten days, the statutory provisions related to expulsion apply, and students can be expelled only by board action, with at least three board members voting to expel.  Accordingly, the superintendent and the parents cannot strike a “deal” with finality.  Rather, they can (and if possible should) discuss coming up with an agreed resolution to present to the board of education for its consideration and approval.

Before getting to the discussion of stipulated agreements, a few general comments may be helpful.  First, board members serve in expulsion hearings in the role of judges, and judges must be impartial, which has some practical consequences.  First, board members must not have a personal interest in the matter, and if they do, they should recuse themselves from the hearing.  Second, board members must decide the case on the basis of the information presented at the hearing, and they should exclude from consideration information they otherwise receive (“Hey, Mom.  Did you hear about the fight in the cafeteria today?”).  That is not to say that board members must recuse themselves if they have heard anything about the situation; the courts recognize that members of a school community hear things.  The important question that board members must ask themselves is whether they can set aside any prior knowledge and decide the matter impartially on the basis of the information presented.

Designation of counsel is another important preliminary matter.  Given the board’s duty to act impartially, the same lawyer cannot represent both the board and the superintendent.  However, each case must be considered individually.  In some cases, it is advisable that both the board and the superintendent have counsel, and in others neither will need counsel.  Considerations include the complexity of the case, whether the facts are disputed, and whether the student has legal counsel.  In any event, the board and the superintendent should understand in advance who will represent whom.

In a typical expulsion hearing, the superintendent presents the case for expulsion, and the student then has a chance to respond.  Both can call witnesses, and any witnesses are subject to cross examination and to questioning by the board.  As a matter of fairness, we recommend that the board limit the first part of the hearing to a determination of the facts so that the board decides whether grounds for expulsion exist without regard to the student’s past disciplinary history.  However, once the board has decided that expulsion is warranted, the board should hear about the student’s past disciplinary record, academic achievement and attendance in deciding what to do.

Here, Mr. Superintendent sought and reached an agreement with the family on the length and conditions of expulsion.  Given the Board’s responsibility for expulsions, such an agreement is perforce a recommendation.  However, such an agreement is also important because it involves the two parties in interest, and deference is therefore appropriate.  The key here is that the board and the superintendent have a clear understanding of whether such stipulated agreements are encouraged and under what circumstances (e.g., will a stipulated agreement be presented “take-it-or-leave-it” or do the parties both understand that the board members will be asking questions).

Finally, while the law provides that notice of expulsion must be included in the student’s cumulative record, it also provides that such notice may be expunged under certain circumstances, including when “such pupil has demonstrated to such board that the conduct and behavior of such pupil in the years following such expulsion warrants an expungement.”  Thus, in making expulsion decisions, boards of education can establish conditions for the student to meet afterwards to have notice of expulsion expunged.

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