District Court: Student's Opening/Brief Argument
The following is the substance of the
opening brief or argument submitted by Attorney Kelly A-R McCurley
(on behalf of the students) to Judge Toth on 10/9/98 to facilitate
his formal review and decision regarding the legality of the school
boards decision to expel the 4 students covered by the brief.
I. Statement of the Issue Presented for Review
Did the School Board exceed its authority in expelling the Plaintiffs by
failing to present sufficient findings of fact to justify expulsion of
the Plaintiffs pursuant to C.R.S. 22-33-106.
II. Statement of the Case
A.Nature
of the Case
Plaintiffs
Charles Piechota, Christopher Winans, Andrew Saletta and Robert Quinn
Marrs, Jr. were expelled from Lewis-Palmer High School for violating
School District 38's drug and alcohol policy. Each Plaintiff
appealed the expulsion to School District 38's Board of Education. The
Board of Education upheld and affirmed the expulsions.
C.R.S.
22-33-108 permits judicial review of the Board of Educations' decision. Plaintiffs
exercised this right and also requested a preliminary injunction pursuant
to C.R.C.P. Rule 106 which was granted.
B. Statement
of Facts
General
facts
Lewis
Palmer High School is a public school. It's operations
are controlled by statutes such as C.R.S. 22-32-101, et seq. and 22-33-101,
et seq. As a public school, it has a school board whose
actions are authorized by and subject to C.R.S. 22-32-101, et seq. More
specifically, the School Board has specific duties pursuant to C.R.S.
22-32-109 and among its duties under this statute is
(w) To
adopt a written conduct and discipline code in accordance with section
22-32-110(2), not inconsistent with law, which relates to the study,
discipline, conduct, safety, and welfare of all pupils, or any classification
of pupils, enrolled in the public schools of the school district. The
conduct and discipline code shall include written procedures, not
inconsistent with article 33 of this title, for the suspension and
expulsion of, or denial of admission to, a pupil, which procedures
shall afford due process of law to pupils, parents, and school personnel. Copies
of such conduct and discipline code shall be distributed once to
each student in elementary, middle, junior high, and high school
and once to each new student in a school district and shall be posted
in each public school of the school district. Any significant
change in the conduct and discipline code shall be distributed to
each student and posted in each public school of the district.
To this
end, School District 38 generated the Student Handbook. (See
record, section 4). Each Plaintiff acknowledges receiving this
handbook. School District 38 also generated JICH,
Drug and Alcohol Possession/Use by Students. (See record,
section 1). Each Plaintiff denies receiving a copy
of this policy and there is no evidence in the record which proves
that any of the Plaintiffs received this policy. (See
dÃý record, section 10, page 6 wherein Mr. Piechota notes that he has
never seen this policy before; see Student 4 record, section 9, page
8 and 9 wherein Mrs. Marrs states that neither the students or the
faculty was aware of this policy; see Student 2, record, section 10,
page 16 wherein Student 2, states that neither he nor the teacher was
aware that expulsion would occur; and see Student 3 record, section
10, page 18).
Each Plaintiff
requested a hearing in front of the Board of Education. The
Board of Education affirmed the Expulsion. (See record,
section 11.) The Plaintiffs sought judicial review pursuant
to C.R.S. 22-33-108. A temporary injunction was granted
by this Court and the Defendants were permitted to make findings which
were submitted to the Plaintiffs some months later.
Charles
Piechota
On the
weekend of April 3, 1998, Plaintiff Piechota attended an All State
Band function. On the evening of April 3, 1998
after all school related activities were over, the students were socializing
in the rooms at the motel at which they were staying. Plaintiff
Piechota walked into a motel room in which alcohol was being consumed
by other band members. He was handed some alcohol, he took
a drink and passed it back to the person from whom he received it and
shortly thereafter left the room. (See record,
Section 9, page 2.)
The alcohol
was discovered later by the teacher, the only chaperone, who asked
which students had been drinking it. Plaintiff Piechota
did not come forward at that time. He did, however,
go to Vice-Principal Smith on April 6, 1998 and turn himself in even
though he was not at risk for being discovered. (See record,
Section 9, page 2.) Plaintiff Piechota received an immediate
five day suspension and expulsion was being recommended by David Dilley. (See
record, Section 5.)
On April
10, 1998, Plaintiff Piechota exercised his right to have a hearing
before the superintendent, Dallas H. Strawn. Plaintiff Piechota,
by his father, specifically requested that Defendant provide
him with the facts which demonstrate how Plaintiff Piechota's behavior
was detrimental to other pupils or to school personnel. Mr.
Dilley advised Mr. Piechota that he would not debate the matter. Ultimately,
Dr. Strawn expelled Plaintiff Piechota by letter dated April 13, 1998.
(See record, Section 8.) Factual Findings were presented
by Mr. Dilley in a memorandum dated April 13, 1998. (See
record, Section 7.) Said findings contain nothing more
than Plaintiff Piechota's consumption of alcohol.
Christopher
Winans
On the
weekend of April 3, 1998, Plaintiff Winans attended an All State Band
function. On the evening of April 3, 1998 after
all school related activities were over, the students were socializing
in the rooms at the motel at which they were staying. In
the course of socializing and moving from room to room, Plaintiff Winans
was in a room where the bottle of alcohol was located. He
poured alcohol from the bottle into a cup and fill the remainder with
juice and then walked in between other rooms socializing. The
alcohol was discovered later by the teacher, the only chaperone, who
asked which students had been drinking it. Plaintiff
Winans admitted at that time that he had been drinking. (See
THIRD AMENDED PETITION FOR JUDICIAL REVIEW OF SCHOOL BOARD'S DECISION.)
Plaintiff
Winans received an immediate five day suspension and expulsion was
being recommended by David Dilley. (See record, Section
5.)
On April
10, 1998, Plaintiff Winans exercised his right to have a hearing before
the superintendent, Dallas H. Strawn. Ultimately, Dr. Strawn
expelled Plaintiff Winans by letter dated April 13, 1998. (See record, Section
8.) Factual Findings were presented by Mr. Dilley
in a memorandum dated April 13, 1998. (See record, Section
7.) Said findings contain nothing more than Plaintiff Winans's
consumption of alcohol.
Andrew
Saletta
On the
weekend of April 3, 1998, Plaintiff Saletta attended an All State Band
function. On the evening of April 3, 1998 after
all school related activities were over, the students were socializing
in the rooms at the motel at which they were staying. In
the course of socializing and moving from room to room, Plaintiff Saletta
walked into a room where the bottle of alcohol was located. He
took a bottle from the table and took one drink and returned it to
the table. Plaintiff Saletta left the room shortly thereafter. Plaintiff
Saletta learned that the alcohol had been discovered by the teacher
the next morning. Plaintiff Saletta turned
himself into Mr. Smith on April 6, 1998 and admitted that he
had only a single drink of alcohol. (See record,
section 10, page 8 and 9.)
Plaintiff
Saletta received an immediate five day suspension and expulsion was
being recommended by David Dilley. (See record, Section
5.)
On April
10, 1998, Plaintiff Saletta exercised his right to have a hearing before
the superintendent, Dallas H. Strawn. Ultimately, Dr. Strawn
expelled Plaintiff Saletta by letter dated April 13, 1998. (See record, Section
8.) Factual Findings were presented by Mr. Dilley
in a memorandum dated April 13, 1998. (See record, Section
7.) Said findings contain nothing more than Plaintiff Saletta's
consumption of alcohol.
Robert
Quinn Marrs, Jr.
On the
weekend of April 3, 1998, Plaintiff Marrs attended an All State Band
function. On the evening of April 3, 1998 after all school
related activities were over, the students were socializing in the
rooms at the motel at which they were staying. In
the course of socializing and moving from room to room, Plaintiff Marrs
walked into a room where the alcohol was located. He
was handed a glass which he was told to contain alcohol and apple juice
and took one drink. (See record, section 9, page 15). Plaintiff
Marrs left the room shortly thereafter. Plaintiff Marrs turned
himself into Mr. Smith on April 6, 1998.
Plaintiff
Marrs received an immediate five day suspension and expulsion was being
recommended by David Dilley. (See record, Section
5.)
On April
10, 1998, Plaintiff Marrs exercised his right to have a hearing before
the superintendent, Dallas H. Strawn. Ultimately, Dr. Strawn
expelled Plaintiff Marrs by letter dated April 13, 1998. (See record, Section
8.) Factual Findings were presented by Mr. Dilley
in a memorandum dated April 13, 1998. (See record, Section
7.) Said findings contain nothing more than Plaintiff Marr's
consumption of alcohol.
III. Standard
of Review
This is
an appeal from the decision of an administrative board. Pursuant
to Rule 106 C.R.C.P. the decision of the administrative body should
not be disturbed in the absence of a clear showing of abuse. Hubbard
v. Pueblo Firemen's Pension Fund, 374 P.2d 492 (Colo. 1962).
IV. Argument
Defendants
acknowledge that they are required to generate a code of conduct and
discipline by which the school district is to operate its schools. (See
record, section 11, page 1). This code of conduct and discipline
is to be consistent with the law and article 33. (See
C.R.S. 22-32-109(w)). To this end, Defendants generated
the Student Handbook.
While the
Student Handbook references expulsion as a possible punishment for
use or possession of alcohol, it is not clear whether such a punishment
would apply to off campus activities. Moreover,
the Student Handbook does not state that this activity is considered
detrimental to the welfare or safety of other students or school personnel. (See
record, section 4).
Defendants
also generated JICH, Drug and Alcohol Possession/Use by Students. Therein
the Board considers the use or possession of alcohol to be detrimental
to the welfare, safety or morals of other students and that it would
apply to school sponsored or sanctioned activities. (See
record, section 1, page 1). No evidence in the record verifies
that any of the Plaintiffs received this document. (See
Student 1 record, section 10, page 6 wherein Mr. Piechota notes that
he has never seen this policy before; see Student 4 record, section
9, page 8 and 9 wherein Mrs. Marrs states that neither the students
or the faculty was aware of this policy; see Student 2, record, section
10, page 16 wherein Student 2, states that neither he nor the teacher
was aware that expulsion would occur; and see Student 3 record, section
10, page 18). Therefore, if the Plaintiffs were not
in receipt of this policy, they had no way of knowing that Defendant
considered use or possession of alcohol to be detrimental to the welfare
or safety of others.
However,
the real issue is not whether Plaintiffs knew that Defendants considered
the use or possession of alcohol to be detrimental, but in this
case, whether it was actually detrimental. Suspension or expulsion
of a student is permitted at the discretion of a public school pursuant
to C.R.S. 22-33-106. Specifically, C.R.S. 22-33-106 (1)(c)
states "(b)ehavior on or off school property which is detrimental
to the welfare or safety of other pupils or of school personnel including
behavior which creates a threat of physical harm to the child or to
other children...". It is also important to note that C.R.S.
22-33-106 (1)(c) does not state that school districts are free to create
policies regarding what the district considers to be detrimental to
the safety or welfare of others.
The Plaintiffs
in this case were suspended for consuming alcohol which action the
Defendant characterized as "behavior on or off school property
which is detrimental to the welfare or safety of other pupils or school
personnel including behavior which creates a threat of physical harm
to the child or to other children". (See record, section
6.) Their actions were also in violation of school policy
JICH. (See record, section 1).
Each of
the Plaintiffs consumed some alcohol. This fact is uncontradicted. It
is also "the finding" that the Defendants rely on in order
to justify the expulsion. Defendants, however, failed to
make findings of detriment to pupils or school personnel which were
specific to each Plaintiff at any stage of the review before the Superintendent
or the Board of Education.
Rather,
after a hearing on the temporary injunction, the Defendants provided
the Plaintiffs with a Determination. (See record, section
11). A careful review of the Determination notes that it is
general as to all Plaintiffs and cites to no specific conduct or action
by any of the Plaintiffs which was detrimental to pupils or school
personnel. Thus, Defendants would have this Court uphold
the expulsion because the Plaintiffs consumed a small amount of alcohol
in violation of the Defendants' "zero tolerance" policy,
because it is illegal pursuant to C.R.S. 12-47-901(i)(a) and
(c) for a minor to possess alcohol, because the United States Congress
has passed legislation addressing the illegal use of alcohol by students
and because they need to consistently expel students who possess or
consume alcohol. (See record, section 11, page 1
and 2).
What the
Defendant has consistently failed to provide to the Plaintiffs is a
factual finding stating that the consumption of one small swallow of
alcohol by Student 1, Student 3 or Student 4 or a slightly larger amount
by Student 2, was detrimental to the to the welfare or safety of certain
persons or how this conduct created a threat of harm to the Plaintiffs
or certain other students.
Hubbard
v. Pueblo Firemen's Pension Fund, supra, and other cases
like it, provide that an administrative agencies' decision should
not be disturbed in the absence of a clear abuse of discretion. However,
a clear abuse of discretion exists in this case.
Defendant
not only had a duty to determine that the Plaintiffs had violated the
zero tolerance policy in their use of alcohol, they had an obligation
to describe how this conduct was detrimental to the welfare of safety
of other students or school personnel or how it created a threat of
harm to the Plaintiffs or to other students.
There are
no Colorado cases specifically on point with respect to school law. However,
the Supreme Court agreed with this proposition in a similar case. In Bauer
v. City of Wheat Ridge, 513 P.2d 203 (Colo. 1973), the City of
Wheat Ridge denied the Bauer's application for a special exception
for building in a flood plain, and the Bauer's appealed to the district
court who agreed that it appeared that the application was denied because
of the type of building to be built and not because the Bauer's did
not meet the criteria for having an application approved under a special
exception. In upholding the district court, the Supreme
Court stated that
Under
C.R.C.P. 106(a)(4), the role of review of the district court '. .
. shall not be extended further than to determine whether the inferior
tribunal has exceeded its jurisdiction or abused its discretion.' The
proper function of the district court is to affirm the council where
there is 'any competent evidence' to support the council's decision. Civil
Service Commission v. Doyle, 174 Colo. 149, 483 P.2d 380
(1971).The findings which the city council made when it denied the
permit were very brief, and were extremely vague as to any substantial
reason for its action. Bauer, pages 204-205.
In this
case, Defendants found that the Plaintiffs consumed alcohol. Their
findings provide nothing more because there is no competent evidence
that the Defendants can point to which makes a case for detriment. For
example, none of the students drove after they consumed the alcohol,
none became aggressive or confrontational to other students or the
teacher, none of them damaged the rooms in which they were staying,
none of them consumed to the point where they were poisoned, etc.
Certainly,
the conduct of the Plaintiffs cannot be condoned, and it hasn't been. The
parents of all of the Plaintiffs have implemented punishments, some
of which have included community service. Likewise, the
Plaintiffs should not have been expelled for their conduct unless the
Defendants provided competent evidence of the detriment that each Plaintiff
created
for other
students or school personnel or competent evidence of how the actions
of the Plaintiffs created a threat of physical harm to the individual
Plaintiff or to other students. To permit the Defendants
to make a statement that this conduct was detrimental without evidence
of more would allow the Defendants to completely abuse their authority
by creating policies for virtually any conduct, i.e. bringing a Bible
to school, and determining that such conduct was detrimental to the
welfare or safety of others with expulsion as the penalty for violation
of the policy.
V. Conclusion
The Plaintiffs
consumed a small amount of alcohol. This fact is
not in dispute. Defendants claim that consumption
alone is sufficient to permit them to make a finding of detriment to
other students or school personnel. However, the
language of C.R.S. 22-33-106(1)(c) is clear that the behavior "is" detrimental
or the behavior "creates" a threat of physical harm. Simply
stating that the behavior is detrimental without providing evidence
of detriment is not enough pursuant to this statute. Therefore,
because there is no competent evidence that the Plaintiffs' conduct
is detrimental or creates a threat of physical harm, the Defendants
have abused their authority by expelling the Plaintiffs.
Plaintiffs
therefore request that the Court find that Defendants have abused their
authority and reverse the expulsion permanently. |
