Excerpted from: Sam A. Mackie, Proof That School Board Improperly Expelled Student from School, 55 American Jurisprudence Proof of Facts 3d 313 (Originally published in 2000) (November 2019 Update) (99 Footnotes/ Case Supplements Omitted) (Full Document - Check Local Law Library)
This issue may arise when a student is either wrongfully accused of a violation of school policy or standards, or is improperly expelled from the school system after a violation of the school policies is discovered.
Note this article includes two very specific short excerpts. Please check the full document.
Note this article includes two very specific short excerpts from § 1, § 2 and § 3 . Please check the full document.
§ 1 Introduction; scope of article
§ 1.3 Drug testing
§ 1.5 Zero tolerance and strict liability policies
§ 2 Student rights and responsibilities; generallly
§ 2.5 Search and seizure law
§ 3 Code of student conduct; due process rights of students
§ 3.5 Code of student conduct; due process rights of students—Equal protection rights of students; discrimination claims
§ 3.7 Due process rights of parents
§ 4 School board requirements in expulsion hearings
§ 5 Pre-hearing administrative requirements
§ 6 Expulsion hearing proceedings
§ 6.5 Injunctive relief
§ 7 Record of expulsion proceedings; judicial review
§ 8 Sovereign immunity
§ 9 Defense considerations
§ 9.1 First Amendment defenses—Generally
§ 9.3 First Amendment defenses—Threats
§ 9.5 IDEA and ADA defenses
II Elements of Damages
§ 10 Generally
§ 11 Elements of damages recoverable against school official for wrongful expulsion of student; checklist
III Elements of Proof
§ 12 Proof that school board improperly expelled student from school; checklist
IV Model Discovery
§ 13 Plaintiff's interrogatories to defendant
§ 14 Plaintiff's request for production of documents to defendant
V Proof That School Board Improperly Expelled Student from School
A Testimony of Plaintiff
§ 15 Initial activities of plaintiff with other student
§ 16 Initial involvement of plaintiff with teachers and administrators
B Testimony of School Administrator
§ 17 Response to student confrontation; initial expulsion procedures
C Testimony of Expert Witness
§ 18 Qualification as expert
§ 19 Defendant's failure to properly investigate plaintiff's case
§ 20 Defendant's failure to properly prosecute plaintiff's case
§ 21 Statutory standard of administrative procedures
§ 22 School board policies and procedures
§ 23 Defendant school board's failure to follow accepted standards and guidelines
§ 24 Plaintiff's damages
Although many people are familiar with their local school systems from personal experience, they may not be familiar with the unpleasant reality that a student's suspension or expulsion from the school system is a dislikeable but common fact of school life. Moreover, many people, including attorneys, may not be familiar with the local, state laws and regulations, and the federal statutes that encompass a student's right to enroll in and attend a school of his choice, and the procedures that are to be followed when that attendance is threatened, and, specifically, when the student's attendance is proscribed, and the student is ordered to cease his involvement with the local student body, and in fact all school programs and activities.
This article discusses the proof necessary to establish, from both a procedural and substantive standpoint, that a student was improperly expelled from a public school. This article first explores the history, background, and rules and regulations that govern a student's attendance in a public school, the local, state, and federal statutory and administrative law that control the activities of students while they are enrolled in public school programs, and proceeds with an examination of the grounds upon which a school board or school system might be found liable for a violation of the local, state, and even federal laws related to the acceptable and unacceptable behavior for a classroom student, and how that behavior might be controlled and enforced if the student does not comply with the school system's intentions and requirements in such matters. Also considered are the state and federal enforcement procedures and their regulatory standards and penalties in student-expulsion cases, and how the judicial review of a state or federal administrative action might be engendered from the facts and law underlying a particular student's expulsion case. This article also considers defenses to an action brought by a student, including the defense of sovereign immunity, as well as damages and remedies that might be asserted by the student against the school system or other enforcement agencies if the school's case against the student is not properly founded or prosecuted, including a checklist of possible elements of damages. The remaining article sections encompass the elements of proof necessary to show that a student was improperly expelled, and a series of related model interrogatories and requests for document production from the plaintiff student to the defendant school system. In addition, this article supplies sample testimony that tends to establish the innocence of a student who is either wrongfully accused of a violation of school policy or standards, or who is improperly expelled from the school system after a violation of the school policies is discovered. Finally, the plaintiff's case is established via expert and related witness testimony; and this article incorporates a bibliography of sources for the reader's further legal research into these procedural and substantive law areas.
All students that attend state-operated schools are considered to be "persons" under the federal constitution, and thus are considered to possess fundamental rights that the state, and the state agencies such as the school districts and school boards, must recognize. As one court has noted, if a state voluntarily provides public education, then it cannot deprive a persons of that education without providing sufficient procedural due process to those persons while they are attending the schools. At the same time, however, these students rights are balanced by the authority of the school districts and school boards to enact and enforce all lawful rules and regulations that are necessary for the protection of the students and the school personnel, and that are also necessary for the schools' smooth and efficient operation. In this regard, the superintendent, principal, and school board members stand in loco parentis in regard to the students over whom they have authority and supervisory capacities.
The term "in loco parentis" means, literally, "in the place of the parents." This term has often been utilized to define a school system's obligation to properly supervise its student population, and to demand that the school premises provide sufficient security for the students' daily classroom and related activities. The in loco parentis theory has been extended to a school system's supervision and other responsibilities at school sponsored activities that may be physically removed from the school premises. The term also encompasses the obligations of teachers, staff, personnel, and even the school board and related officials in their official capacities as school system representatives. With the breadth of the theory in mind, it should follow that the school officials, staff members, and the school board may be held liable for their purported negligence in improperly supervising or safeguarding, or failing to supervise and safeguard school children against foreseeable dangers that might occur on the school premises, or at school sponsored activities. Another court has noted that the loco parentis or in loco parentis situation exists when a person or party undertakes the care and control of another, in the absence of such supervision by the other party's natural parents, and in the absence of formal legal approval. As to those students attending the schools, these officials may exercise those powers of control, restraint, enforcement, and "correction" over the students as may be reasonable and necessary to enable the teachers to perform their instructional duties, and for the school system to effect the general purposes of the educational processes. So long as there has been no abuse of this discretion and power on the part of the school officials, the courts will generally not interfere with the school officials' activities and decisions related to the schools' operations and management. It seems that so long as the schools' regulations and rules are definite—that is, so long as these rules and regulations provide reasonable and sufficient notice to the students so that the students may conform their conduct to the rules, and the students do not have to guess at the rules' meaning or ramifications—then the rules may be enforced by the school administrators, and their enforcement procedures and decisions will not be overturned by the courts. A reasonable rule, regulation, or requirement is one that is understandable, is necessary for the maintenance of order and discipline on school premises, and reasonably contributes to the maintenance of order and decorum within the subject educational system.
As an adjunct to the due process notice rights that are guaranteed to all persons, including students, under the provisions of the state and federal constitutions, the separate school boards and districts are bound to provide the students with a full complement of policies, procedures, and regulations that are in effect and govern the student's daily school related activities; all such rules and regulations are to be followed whenever a student is involved in a school activity of any sort. The place of such activities is not limited to the school premises, but includes virtually any place where a student might be engaged in a school related or school sponsored activity, and places tangential to the school premises, for example, when the students are attending a school sponsored event, athletic activity, and the like. The activities themselves might include any activity planned or supervised by school personnel (e.g., a homecoming dance or soccer game), school sponsored parties or gatherings at a house or private residence, and any school function attended by at least one school staff member. "Activities" has also been taken to encompass a student's being transported to and from school or a school sponsored activity, and whenever the student is otherwise under the supervision of any school employee. Because the school personnel, especially the school teachers, stand in loco parentis to pupils under that persons' charge, the teachers may exercise such power, control, restraint, and correction over the students as may be necessary and reasonable for the teachers to properly perform their duties, and to preserve the order and maintain discipline throughout the school premises. Moreover, the teachers and school officials may continue in their supervisory roles outside of the school day and outside the school premises, if the students under their charge are engaged in activities that are sponsored by the school, or the students' disciplinary measures or enforcement directly affect the good order and welfare of the students and the school as a whole.
The students' attendance at school is necessarily conditioned upon the students' compliance with all reasonable rules, regulations, laws, and requirements that are imposed by the school authorities. Any breach of these rules and regulations expose the students to disciplinary action, including suspension and expulsion from the school system. The school officials and administrators therefore have the authority to set conduct standards and define offenses for which the punishment of expulsion may be imposed and may determine whether the named offense has in fact been committed, and what the resulting punishment for the offense might be thereafter. These standards, offenses, rules, regulations, and punishments, usually called the code of student conduct or student disciplinary code, are normally provided to the students at the start of classes each school year. The student's receipt of these rules and regulations is generally considered to be prima facie evidence that the rules and regulations have been read, understood, and will be abided by during the student's tenure in that school environment for the school year. These school policies and regulations segue with the state statutes, which determine that each student is subject to the control and direction of the school personnel (including bus drivers) and the school board during the time: 1) that the student is being transported to and from school; 2) that the student is attending school; 3) that the student is present on the school premises and participating in a school sponsored or authorized activity; and 4) for a reasonable time before and after classes, or these same school sponsored or authorized activities. In keeping with this general policy of direction and control of students, and in the students' adherence to the school and school board's rules of conduct, the students understand that they are to attend classes regularly, demonstrate respect for and show obedience to their teachers, and respect the rights and property of other students. It also seems likely that the students' responsibilities would encompass their not being involved in any criminal act while they attend school or are involved in any school sponsored activity. Such "zero-tolerance" policies are enforceable in many such contexts, and usually without judicial obstacle.
It is also presumed that the students will be responsible school citizens, and that they will not possess any implements or other things that are disallowed on the school property (i.e., contraband, weapons, and the like); that they will respect the privacy, opinions, and beliefs of their teachers and classmates; that they will not interfere with the school's educational or learning environment; that they will do nothing to endanger their classmates or the school personnel; that they will attend classes regularly and meet reasonable academic standards; and that they will conduct themselves (including in their dress, manners, and grooming) in a way that is appropriate for their school surroundings.
The in loco parentis rationale also demands that the students will obey their instructors' decisions and instructions, including those of the teachers, administrators, resource officers, aides, bus and lunchroom personnel, and even the volunteers that might be a part of the normal school activities or school sponsored programs. In this regard, the state statutes again support the school policies, those policies and statutes of which make plain that, for instance, teachers and all instructional personnel have the authority to control and discipline the students that they oversee, and these instructional personnel are in fact mandated to maintain good order and discipline in their classrooms, and throughout the school premises. In this regard, the instructional personnel have the authority to:
• Establish classroom rules of conduct
• Enforce those rules
• Have violent, abusive, uncontrollable, or disruptive students removed from the classroom environment
• Enforce school rules at all school sponsored events, on school sponsored transportation, and during all school sponsored activities
• Receive immediate assistance in classroom management if a student becomes ungovernable
• Press charges against a student if a crime has been committed against any instructional personnel or administrators
• Use reasonable force to protect themselves from injury
• Use corporal punishment, if necessary
• Permanently remove from the classroom any student who has continually interfered with the teacher's ability to communicate with the other students, or with the other students' ability to learn.
In their enforcement of the school policies, and the code of student conduct, and as long as they do not utilize excessive force, or cruel and unusual punishment, teachers and all members of the instructional staff are normally protected from civil and criminal liability for any action that they engage in that is itself in conformity with the state board of education and the school district's rules and regulations in regard to the control, discipline, suspension, and expulsion of students enrolled in the district's educational programs.
The code of student conduct will likewise inform all of the students, and the school personnel, what types of activities are particularly proscribed, and what the general punishment, penalty, or consequences of a violation of that expected conduct might entail. It is not unusual for the code of student conduct to track a state's common laws and criminal statutes, and for the code to particularly proscribe arson, assault and battery, kidnapping, breaking and entering, trespass, computer crimes, drug and alcohol violations, robbery, extortion, fighting, forgery, gambling, harassment, obscene acts, lying, trespass, insubordination, sexual assault, threats, and vandalism.
As young citizens, students are afforded many of the protections that their parents and adult counterparts are offered as citizens and residents of the United States, and as citizens and residents of the States in which they reside. It is therefore generally accepted that students have the right to a free and appropriate education; that they are not to be discriminated against because of their race, color, natural origin, sex, handicap, or their marital or parental status. Students also enjoy "inalienable rights" (sometimes called fundamental or basic rights), that include the right to a safe and orderly learning environment; to be treated with respect, dignity, and equality; to express their personal opinions, and to speak freely regarding the topics of study with which they are presented; to assemble peaceably and discuss their concerns among themselves, or with the school personnel; to personal privacy; to the security of their private possessions; to the privacy of their records and school documents; to be informed of what rules and regulations (of conduct, scholastic requirements, and so forth) will be expected of them; and to reasonable and fair treatment in all school related or school sponsored circumstances. Fair treatment is a relative term, of course, and as the students proceed through the hierarchy of proscribed activities—that is, from less to more severe infractions—the amount of "fair treatment" increases and becomes more broad. For example, a student found to be wearing clothing, tattoos, or emblems that promote or encourage the use of alcohol, tobacco, or drugs may be asked to remove or cover the offending item. A student engaged in behavior that significantly and adversely affects school activities and atmosphere—for example, a student involved in a fight—may be formally disciplined, and will probably and immediately be removed from the school premises. At the far end of the spectrum, a student involved in behavior for which the penalty is expulsion, such as arson, assault, bomb threat, burglary, drug trafficking, firearms possession, and the like, will be afforded the full panoply of due process rights that would apply to an adult who, as punishment for an alleged unlawful act, might ultimately be deprived of his liberty, or an important property possession.
Just because the states have the power and in fact extend the right to a free, public education to students residing within the state's jurisdictional boundaries, the states may not abridge or withdraw that right because of alleged student misconduct, unless the student has been afforded the entire range of fundamentally fair procedures before the right to attend school is curtailed or withdrawn. The student's attendance in school is akin to a property or liberty interest, and the student's suspension or expulsion from the school environment may be seen as a temporary or permanent denial of these important interests.
Therefore, the schools' threat of denial of these interests must be conducted within the state and federal constitutional frameworks, and in concert with the constitutional safeguards that are embodied therein. The due process clauses of the state and federal constitutions come immediately to mind, and it has been said that a student's alleged misconduct does not deny that student full advantage of minimum procedural and substantive due process rights. These due process elements are even more important when one considers that the students in high schools are, for the most part, minors, and they are often too inexperienced and immature to avail themselves of the appropriate defenses and procedural protections against the allegations of misconduct that might be levelled against them. Generally speaking, students are denied due process of law if the allegations against them are so vague and standardless that they leave the student, and his parent or guardian, without effective opportunities to refute the charges or to challenge them as sufficient grounds for the student's removal from the school premises.
The general notice and hearing procedures that are sufficient to safeguard a student's due process rights can be minimal: the student must be given notice of the allegations/charges raised against him or her, and an opportunity to a hearing on the charges before the student may be expelled from the school system. Most state statutes go farther; and they may even offer the appropriate foundation principles and guidelines for a matter as serious as an expulsion proceeding. First, the statute will make plain that expulsion is the most serious school related offense that a student might engage in, and that the principal may recommend expulsion to the school superintendent if it has been documented that the student was engaged in actions that resulted in a serious breach of school-proscribed conduct. Such conduct includes but is not limited to a student's willful disobedience, open defiance of a teacher or staff member's authority, violence against the person or property of another, violence against a teacher or school administrator, or any other act that substantially disrupts the school's orderly conduct.
Even at this stage of the proceedings—that is, at their outset—the statute will probably also require that before the expulsion recommendation has been submitted for the superintendent's review and response, the principal must also detail the alternative measures (short of expulsion) that were either instituted or recommended in this particular student's case, and that preceded the expulsion recommendation. Where the student's actions are of a nature that constitutes grounds for expulsion, then the student will normally be provided with all of his due process rights, including the following:
• Before being suspended from participation in classroom and other school-sponsored activities, the student will be provided with written or verbal communications generated from an appropriate school official so that the student may know the allegations against him, and have the opportunity to rebut them if appropriate (again, basic due process considerations: notice of charges, ability to be heard, and to offer evidence in the student's own defense, and so forth)
• The student, and his parent or guardian, will be provided with a conference with the appropriate school official, so that there is full disclosure of the allegations that have been made against the student (due process: notice of charges, ability to be heard, and to offer evidence in the student's own defense), and so that the parent and student will know the reason for the expulsion recommendation, and the specific recommendation for expulsion (expulsion recommendations can include the student's removal from further school activities for a specified term; referral to an alternative school environment for a specified term, or referral to a substance or alcohol abuse program)
• Mandatory suspension from school classes and activities until the expulsion hearing has been completed
• Documentation specifying the student's rights during the course of expulsion hearings
• Documentation specifying the procedures to be followed if the student wishes to appeal the principal's expulsion recommendation via a formal hearing, or other, similar procedure
• Information that the student has the right to retain legal counsel, to present witnesses and evidence on his own behalf, and to speak on his own behalf at the formal presentation of the case against him
• The execution of a stipulation if the principal recommends an expulsion procedure or outcome that is agreed to by the student and his parent or guardian.
[. . .]
Code of Student Conduct
A state's education (usually district school) system is embodied in the state's statutes, and wherein provision is made for the county educational units, special school districts or units, and the management, control, operation, administration, and supervision of the school systems as a whole. As a direct adjunct thereto, each school system (usually each county) also elects a school board, whose functions include the management of the school system, and the invocation of all rights, duties, and powers related to the operation of a school district that are not otherwise abrogated by general law or the state constitution. These rules and regulations include the development of codes and regulations of student conduct, which themselves include the following items:
• Consistent policies of, and specific grounds for, student disciplinary action, including levels of enforcement and disciplinary (penalty measures), in-house suspension, out-of-school suspension, and expulsion
• Punishments appropriate for any student found to be in the possession of contraband or illegal items of any sort
• Procedures to be followed for any student act that requires discipline, including corporal punishment if the local rules and state statutes so allow
• An explanation of the student's rights and responsibilities related to attendance, respect for persons and property, free speech, student publications, student assembly, student privacy, and participation in student programs and activities
• Notice that the illegal use, possession, or sale of controlled substances while involved in school activities may result in disciplinary measures and even criminal prosecution
• Notice that the possession of a weapon (e.g., firearm, knife) while involved in any school activity may be grounds for disciplinary action or even criminal prosecution
• Notice that violence against any school personnel or other student is grounds for disciplinary measures, or perhaps criminal sanctions
• Notice that violation of school board transportation policies (for example, disruptive behavior while riding a school bus, or while involved in a school sponsored activity) may result in a suspension of the student's transportation privileges, and may also result in disciplinary measures, or perhaps criminal sanctions
• Notice that violation of the school system's discrimination or harassment policies may be grounds for disciplinary penalties, or even criminal prosecution
• Notice that disruptive students may, in lieu of expulsion or long-term suspension, be relegated to an alternative educational program within the school system
As collateral matters, many school systems have adopted, pursuant to their state statutes, programs dealing with school resource (law enforcement) officers who are employed to, literally, keep the peace within the school premises, and who are, at all times, under the direct supervision of the school principal, as well as programs and policies of "zero tolerance for crime and substance abuse," which include the reporting of delinquent acts and crimes that might occur whenever a student is under the supervision and jurisdiction of the local school district.
Because school attendance is mandated for students between the ages of 6 and 16 for those parents who choose to send their children to public schools, those students enrolled in the school system are afforded the normal procedural and substantive due process rights that are guaranteed to all citizens and residents of the states by their separate state constitutions, and by the federal constitution. These rights encompass the student's right to be notified of any alleged violation of school policies or regulations, or related state or federal laws; to be represented by legal counsel at the hearing on the matters in issue; to be presented with evidence in support of the allegations that are raised in the proceedings; to present evidence on his own behalf and in defense of the allegations; to be heard by an impartial tribunal (hearing officer, school board or agency officer; and to appeal the school board or administrative agency decision to a court of competent jurisdiction thereafter.
The seminal case in this area of due process rights for students, in expulsion hearings, was decided by the United States Supreme Court in Wood v. Strickland. The facts in Strickland were straightforward: Peggy Strickland and her friend, Virginia Crain, were charged with and eventually admitted to spiking a bowl of punch with malt liquor that was served at a school function. They were formally expelled from school for violation of their school's student conduct code that prohibited the use or possession of intoxicating beverages at school or during school activities. The students then filed suit against the members of the school board who voted to expel the students from school, the school district, and two administrators, personally, for violation of the students' federal constitutional (due process) rights. The students also requested, inter alia, compensatory and punitive damages, and that an injunction be issued against the school district to prevent further punishment against them.
The federal district court directed a verdict in favor of the school board and other defendants on the grounds of immunity. The appellate court, however, reversed that ruling, and remanded the case for injunctive relief, and a new trial on the damages issues. The Supreme Court reversed the appellate court decision, and found that the state's immunity protections (generally offered to state agency personnel) likewise applied to school board and related officials if those officials act in good faith, and in concert with a student's constitutional due process rights.
For our purposes, the Supreme Court recognized that school board members function both as legislators and adjudicators in expulsion circumstances, as each function involves the exercise of discretion, the review of factual matters, and the "formulation of long-term policy." Simply stated, the school board members and administrators are asked to judge whether there have been violations of school regulations, and, if so, what the appropriate sanctions for the violations must be. In the specific context of school discipline, therefore, the Court determined that a school board member is not immune from 42 U.S.C.A. § 1983 damages if the member knew or reasonably should have known that the action he took (inferentially, expulsion of a student from school) would violate the student's constitutional rights, or if the board member took the action with a malicious intention to cause a deprivation of the student's constitutional rights, or to otherwise injure the student.
Sam A. Mackie received his B.S. in Education from Ohio State University, an M.S. in Education from Florida International University, and his J.D. from Florida State University
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