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SEE YOU IN COURT! - February 2018

CABE Journal

February 2018

A student recently came to Mr. Principal in tears, accusing Joe Blow, a fifth-year senior at Nutmeg Memorial High School, of threatening to beat him up if he didn’t hand over his lunch money.  When Mr. Principal investigated this claim, two other students told Mr. Principal that Joe had done the same to them.  Mr. Principal then called Joe down to the office for a talk.  Joe admitted that each of the three students had given him money when he asked them at lunch, but he adamantly denied that he had threatened anyone, claiming instead that the other students had willingly given him lunch money.  Unconvinced, Mr. Principal suspended Joe and recommended expulsion.

Mr. Superintendent agreed with Mr. Principal’s recommendation, and he notified Ms. Chairperson that the Board would have to convene an expulsion hearing.  Ms. Chairperson asked Mr. Superintendent if the case would be complicated.  Mr. Superintendent told her that the case against Joe is airtight; the evidence will show that Joe was robbing fellow students.  Given the likelihood of a short hearing, Ms. Chairperson scheduled the hearing after the upcoming Board meeting four days later.

Joe and his family received the letter notifying them of the hearing only two days in advance, but they showed up at the appointed time with Joe’s uncle, a lawyer who does estate planning.  Ms. Chairperson opened the hearing by inviting Mr. Superintendent to present the case for expulsion.  Mr. Superintendent called Mr. Principal as his first and only witness.  Mr. Principal described the initial complaint against Joe as well as the claims by the other students that Joe had robbed them as well.

When Mr. Superintendent concluded his direct examination of Mr. Principal, Ms. Chairperson invited Joe’s uncle to cross-examine.  The uncle gamely stood up and asked Mr. Principal how much Joe had taken from each of the students.

Mr. Principal admitted that the amounts were small, given that Joe had taken their lunch money, but he explained that he didn’t know because the students had not told him the amounts.

At the end of the hearing, Mr. Superintendent and Joe’s uncle presented closing arguments.  Mr. Superintendent said that the case was clear and that Joe should be expelled.  The uncle, however, argued that the Administration had not proven its case – indeed they did not even know how much Joe was supposed to have taken.

As soon as closing arguments were concluded, veteran Board member Bob Bombast moved that the Board accept the recommendation of Mr. Superintendent and expel Joe for the rest of the year.  Fellow Board member Mal Content seconded Bob’s motion, offering a friendly amendment that Joe be given two hours of homebound tutoring each day during the expulsion period as his alternative educational opportunity.  Bob agreed to Mal’s amendment, and Ms. Chairperson, hearing no further discussion, called for a vote.  The Board unanimously voted in favor of the motion, and Ms. Chairperson then called for a motion to adjourn, which also promptly passed.

As he was packing up his papers, Joe’s uncle asked Ms. Chairperson how he can appeal the Board’s decision.  Ms. Chairperson smiled modestly, and told the uncle that, while she is not a lawyer, she was pretty sure that the decision is final.

Can Joe appeal, and on what grounds?

*          *          *

As a general premise, Ms. Chairperson is correct; Conn. Gen. Stat. § 10-233d does not include any provision for appeal to court.  However, given these facts, Joe’s family could bring a claim that the Board’s actions violated his due process rights.

A key element of due process is an impartial decision-maker.

Mr. Superintendent should not have discussed the case against Joe with Ms. Chairperson outside of the hearing.  Joe could have a valid due process claim that Ms. Chairperson was biased based on Mr. Superintendent’s discussion of the merits of the case with her.          

Another potential due process issue here is the reliance on hearsay.  Hearsay is testimony by one person about what another person said, which is offered for the truth of the matter asserted by that other person.  Many years ago, the federal district court in Connecticut held that reliance on hearsay violates a student’s due process rights because he can not meaningfully cross-examine that testimony.  More recently, however, the courts have eschewed a rigid prohibition against hearsay, given legitimate concerns over retaliation against students who testify in expulsion hearings.  Rather, the courts will ask whether reliance on the hearsay testimony for any necessary facts in the case will be fundamentally fair.  If so, the hearsay testimony will be allowed.

Here, all the testimony against Joe was hearsay, which is a problem.  However, had Mr. Principal also explained that Joe had admitted to obtaining money from the students who complained (an “admission against interest”), he would have established a factual context making the hearsay testimony reliable and thus fair.

A third due process issue here was the notice of the hearing.  The General Assembly amended the expulsion statute effective August 15, 2017 to require that written notification of expulsion be “given” to the parent or guardian at least five business days before the hearing, which the Board failed to do.  The amended statute also now requires that the notification letter “include information concerning the parent's or guardian's and the pupil's legal rights,” as well as information concerning free or reduced rate legal services that may be available.

The Board also failed to comply with its new obligations regarding the alternative educational opportunity to which students younger than eighteen are entitled (unless they have been expelled before).  Now, the alternative educational opportunity must be provided either through (1) “alternative education, as defined by section 10-74j, with an individualized learning plan” or (2) in accordance with standards adopted by the State Board of Education.  On January 3, 2018, the State Board of Education adopted such standards.  As a result, two significant changes are now clear.

First, the alternative education opportunity must either comply with the required 900 hours/180 days of instruction that applies to alternative education programs under Conn. Gen. Stat. § 10-74j, or, under the new standards, the alternative educational opportunity must be a “full-time, comprehensive experience, where the learning is comparable to what the student would experience in a regular school environment.”  Clearly, the traditional ten hours of tutoring per week will no longer be sufficient.

Finally, the determination of the alternative educational opportunity is no longer the board’s responsibility (or business).  The new standards require that school staff meet with parents after an expulsion to review options and establish the student’s alternative educational opportunity as required by the amended statute.

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