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SEE YOU IN COURT! - May 2019

CABE Journal

May 1, 2019

With the arrival of spring and the coming of summer, incidents of student misbehavior increase in Nutmeg each year. This year, Mr. Superintendent has had his hands full in dealing with such matters, and during the executive session last week, he announced that the Board was now in “Expulsion Season.” “It’s going to be hard to deal with all of these expulsions,” he explained, “and I will need your help. When the secretary calls to see if you can serve on an expulsion case, please say yes, and when you serve, keep it simple and do what’s right.”

Last night, the Board had its first expulsion hearing of the “season,” with veteran Board members Bob Bombast, Mal Content and Penny Pincher in attendance. Mr. Superintendent started the hearing by presenting the Board members with the arrest notification he had received concerning Joe Blow, now in his fifth year at Nutmeg Memorial High School. The notification stated that Joe was arrested for stealing a car and taking it on a joy ride. Mr. Superintendent then explained that, unfortunately for Joe, his misadventure ended in his crashing the car into a police cruiser. Mr. Superintendent concluded his presentation by recommending expulsion: “Joe Blow clearly does not meet our expectations for students at Nutmeg Memorial High School, and we need to send a message to the entire student body that criminal behavior will not be tolerated. Joe should be expelled for one calendar year!”

Mal Content thanked Mr. Superintendent for his inspiring presentation, and he turned to Joe Blow, who was there with his parents, and he asked him what he had to say for himself. Joe was clearly nervous, but he did manage to tell the Board members that his lawyer told him not to say anything to anyone about his arrest, given the ongoing criminal proceedings. Bob Bombast was uncharacteristically sympathetic to Joe’s dilemma, and he explained to Joe that the case against him was strong and that he will be expelled unless he can explain himself. However, Joe simply repeated that his lawyer told him not to say anything about the situation.

Bob Bombast was frustrated, but he remained sympathetic to Joe’s plight, stating “We really shouldn’t expel Joe if he can’t even defend himself.” But Mr. Superintendent waived the arrest notification around, and he insisted that expulsion was the only appropriate response to Joe’s felonious conduct.

At this point, Mal Content and Penny Pincher were getting impatient. “Look, Joe,” Mal began. “We have you dead to rights here, and if you just sit there without defending yourself, we have no real choice but to expel you.” But Joe just sat there looking uncomfortable.

“OK, then,” Penny stated. “I move that Joe is expelled for one calendar year for his criminal behavior.” Mal promptly seconded Penny’s motion, and the Board members voted, Penny and Mal in favor of expulsion, Bob opposed.

Has Joe been expelled?

*     *     *

No. Connecticut General Statutes § 10-233d provides that three affirmative votes are required for expulsion, and whenever only three board members hear a case, the vote must be unanimous. Given Bob’s vote against expulsion, the motion failed, and Joe was not expelled. But this situation presents a host of other issues as well.

First, the very recommendation for expulsion was improper here because the Board lacked the authority to expel Joe under these facts. In general, boards of education can expel students when they engage in misconduct on school property or at a school-sponsored activity. Expulsion may be imposed for off-campus conduct, however, only in limited circumstances, and otherwise school officials do not have jurisdiction over student behavior outside of school.

By enacting the mandatory expulsion statutes, the General Assembly conferred jurisdiction on school officials over student misconduct in specified situations. Expulsion is mandatory in three situations of off-campus misconduct: (1) possession of a “firearm, as defined in 18 USC 921,” (2) possession and use of a firearm, deadly weapon, dangerous instrument or martial arts weapon in the commission of a crime, or (3) offering a controlled substance for sale or distribution. The requirement that expulsion be imposed for such conduct confers jurisdiction in such cases.

Otherwise, school officials have jurisdiction over student misconduct off-campus only if the misconduct violates a publicized policy of the board of education and is “seriously disruptive of the educational process.” In 1998, the Connecticut Supreme Court gave further meaning to the quoted phrase, holding for these purposes that conduct is “seriously disruptive of the educational process” only if it severely impedes the day-to-day operation of the school, a very high standard. Packer v. Thomaston Board of Education, 246 Conn. 89 (Conn. 1998).

Given these limitations, the Nutmeg Board of Education clearly did not have the authority to expel Joe. He was accused of stealing a car off campus. Even if the accusation is correct, however, the action had nothing to do with the Nutmeg Public Schools, and accordingly the Board members had no authority to expel.

That said, it is important to note that Joe’s dilemma was his problem, and the ongoing criminal proceedings would not prevent the Board from expelling him if the Board had the authority to do so. Students and their families have a right to a hearing before a student may be expelled. Such hearings are simply an opportunity to be heard, however, and students may choose whether or not to testify. In some cases, students are indeed advised not to testify by lawyers representing them in criminal proceedings, but that does not prevent an expulsion from going forward.

Finally, we note that Mr. Superintendent was relying on the arrest notification as the basis for the expulsion of Joe. However, an expulsion must be based on a finding that the student committed an expellable offense. An arrest notification conveys information, but it certainly does not prove that the student committed the offense for which he was arrested. To make matters worse, Mr. Superintendent told the Board members that Joe’s misadventure ended with a crash. Unless Mr. Superintendent was a witness to the crash, however, Mr. Superintendent’s statement was hearsay, a report of a statement made by another, offered for the truth of the assertion made.

Reliance on hearsay statements at expulsion hearings raises significant issues of due process. Students facing expulsion should be able to confront their accusers, but one cannot cross-examine a hearsay statement, which is simply a report of something someone else said. In expulsion hearings, school officials should present direct evidence of the conduct they claim constitutes an expellable offense.

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