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SEE YOU IN COURT! - October 2017

CABE Journal

October 1, 2017

Authors: Thomas B. Mooney

It didn’t take long.  School started in Nutmeg just a month ago, and already Ms. Superintendent was calling the members of the Board of Education to schedule an expulsion hearing.  “This is a good one,” she told veteran Board member Bob Bombast.  “Joe Blow hacked into the computer system at Nutmeg Memorial High School and gave himself and a number of friends better grades.  Can I count on you?”

“I understand,” Bob Bombast replied.  “Don’t worry.  I have this.”

Ms. Superintendent promptly sent out the standard expulsion notification letter, and the next day she received a call from Bill Alot, a local lawyer, who told her that he is representing Joe Blow.  “Of course, I will not be ready to proceed next week per your letter.  It is clear that my client is the victim of mistaken identity, and it will take me some weeks to ferret out the truth.  I will be back to you when I am ready.”

Ms. Superintendent asked Bill if the Blow family agrees to keep Joe out of school pending the scheduling of the hearing.  “Of course not,” Bill responded.  “This great young man shouldn’t suffer any disruption to his education.”  Ms. Superintendent considered Bill’s position for five or six seconds, and then she told Bill that she was denying Bill’s request and that the hearing will go forward as scheduled.

Attorney Alot and the entire Blow family were in attendance at the scheduled hearing.  Before Ms. Superintendent could begin her presentation of the evidence against Joe, however, Bill Alot asked to be heard, and Mr. Chairperson agreed.

“This entire proceeding is tainted with a failure to comply with legal requirements,” Bob intoned.  “First, the family received a notification letter that is wholly inadequate and illegal.  Then, I make a simple request for postponement, which Ms. Superintendent summarily denied.  I ask you to dismiss this case with prejudice.”

Veteran Board member Bob Bombast spoke next.  “Thank you, Attorney Alot, for that speech.  But we cannot have wrong-doers like Joe Blow in school with the good children who want to learn.  I move that we go ahead with the hearing.”

After a brief huddle with Ms. Superintendent, Mr. Board Chairperson announced his ruling that the hearing would go forward.  He turned to Ms. Superintendent and ask her to present the case.  Ms. Superintendent explained to the Board that the Assistant Principal at the High School had heard rumors that students’ grades had been changed and that Joe Blow was responsible.  He called Joe right down to the office, and Joe admitted (with some pride) that he had changed the grades.  “Enough said,” Ms. Superintendent stated, and she concluded her presentation.

Attorney Alot then renewed his accusations against the Administration, now claiming that the Assistant Principal deprived Joe of his constitutional right against self-incrimination by not reading him his Miranda rights.  However, the Board wasn’t buying it, and it expelled Joe.

Attorney Alot vowed to appeal.  Should the Board have any concerns?

*        *        *

Yes, it should.  Normally, expulsion hearings are final decisions, and there is no express right to appeal.  However, here the actions of Ms. Superintendent and the Board gave Joe and his lawyer ample grounds to appeal on due process grounds.

At the outset, we note that students facing expulsion have a property right in their education, and as we remember from Civics class, under the United States Constitution, no person can be deprived of life, liberty or property without due process of law.  Two key elements of due process are fair notice and an impartial decision-maker.  Taking the second first, Ms. Superintendent should not have talked with Bob Bombast beforehand.  The Board members hear expulsion hearings as judges, and they should be impartial, basing their decision at the evidence presented at the hearing.  Bob’s conversation with and assurance to the Superintendent violated this expectation. 

Second, we note Attorney Alot’s claim that the notice of the hearing was deficient.  While we did not see the actual letter, Bill may have a good point.  Last year, the General Assembly amended the expulsion statute, Conn. Gen. Stat. § 10-233d, in several significant respects, including the addition of a new requirement.  Effective August 15, 2017, notice of an expulsion hearing must include “information concerning the parent’s or guardian’s and the pupil’s legal rights and concerning legal services provided free of charge or at a reduced rate that are available locally and how to access such services.”  Information about reduced rate legal services has been required for some time, but districts must now also provide parents and guardians information concerning their “legal rights,” a broad term that the statute does not otherwise define.  We recommend that such information include the right to appear, to hear evidence and to present evidence, to be represented by counsel, and to request a postponement “for up to one week to allow time to obtain representation.”

We note that Bill Alot requested a postponement for several weeks, which is not required.  However, even a one-week’s postponement can present a challenge because the expulsion hearing must be held within ten school days of the student’s suspension unless “an emergency exists,” in which case “such hearing shall be held as soon after the expulsion as possible.”  Unfortunately, the General Assembly did not clarify the status of the student pending a hearing beyond the ten school days.  Districts should continue to work with parents to schedule these hearings promptly.  However, at parent insistence, students may now be able to return to school pending the expulsion hearing except in cases of emergency.

Also, now all students below eighteen are eligible for alternative education, irrespective of the nature of their misconduct (subject to conditions that the board of education may impose for students sixteen and older), unless the student has been expelled previously.  This educational opportunity must conform to the requirements for alternative education, notably instruction based on the 900-hour requirement, as well as an “individualized learning plan,” which is not defined by statute.

This year, in Public Act 17-220, “An Act Concerning Education Mandate Relief,” the General Assembly added a second option – instruction in accordance with standards established by the State Board of Education.  However, in contradiction to the stated purpose of this statutory change, the State Department of Education has issued draft standards that are even more burdensome than alternative education, which thus cannot be considered “Mandate Relief” under any definition.  As of this writing, the State Board of Education has not adopted these draft standards.  Stay tuned.

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