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Student's Opening Argument/Brief to the Colorado State Appellate CourtCOURT OF, STATE OF COLORADO Case No. 99 CA 1834 Appeal from the District Court of El Paso County, Case No 98 JV 0628, the Honorable Theresa M. Cisneros
OPENING BRIEF
CHARLES PIECHOTA, by his parents, CHARLES PIECHOTA AND NANCY PIECHOTA, CHRISTOPHER A. WINANS, by his parents, ROBERT E. WINANS AND LAURA LYNETTE WINANS and ROBERT QUINN MARRS, JR., by his parents, ROBERT QUINN MARRS, SR. and ANDREA MARRS, Plaintiffs/Appellants, v. SCHOOL DISTRICT 38 BOARD OF EDUCATION, and DALLAS H. STRAWN, PhD, Superintendent, LEWIS PALMER HIGH SCHOOL,
Defendants/Appellees.
LAW OFFICES OF KELLY A-R MCCURLEY Kelly A-R McCurley, #17958 (719)488-2425 Attorney for Appellants Charles Piechota, Christopher Winans, and Robert Quinn Marrs, Jr. TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . .
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TABLE OF AUTHORITIES Cases Board of County Commissioners V. Conder, 927 P.2d 1339 (Colo. 1996) . . . . . . . . . . . . 12 Board of County Commissioners of Larimer County V. O'Dell, 927 P.2d 1339, Colo. 1996). . . . . . . . . . . . 9 Board of County Commissioners of Routt County V. O'Dell, 920 P.2d 48) . . . . . . . . . . . . . . . . . 8 City of Aurora, v. Public Utilities Comm., 785 P.2d 1280 (Colo. 1990) . . . . . . . . . . . . 11 Colonial Bank v. Colorado Financial Ser., 961 P.2d 579 (Colo. 1998) . . . . . . . . . . . . 16 Lakewood v. Colfax Unlimited Assoc., 634 P.2d 52 (Colo. 1981) . . . . . . . . . . . . 16 Liquor Board v. Cinco, 771 P.2d 482 (Colo. 1989) . . . . . . . . . . . . 18 People in the Interest of K.P., 514 P.2d 1131 (Colo. 1973) . . . . . . . . . . . . 14 Regular Route Common Carrier Conference 761 P.2d 737 (Colo 1988) . . . . . . . . . . . . 11 Ross v. Denver, Health & Hospital,, 883 P.2d 516 (Colo. 1973) . . . . . . . . . . . . 9 Weissman v. Board of education, 547 P.2d 1267(Colo. 1976) . . . . . . . . . . . . 14
Statutes C.R.S. 22-32-101, et seq. . . . . . . . . . . . . . . . . . . . . .
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I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
A. Did the District Court err in upholding the expulsion of Appellant Piechota, Winans and Marrs by determining that the School Board did not exceed its authority or abuse its discretion. B. Did the District Court err in determining that Appellant Piechota's, Appellant Winans' or Appellant Marrs' behavior was detrimental to the welfare or safety of others pursuant to C.R.S. 22-33-106. C. Did the District Court err in determining that the expulsion was pursuant to policy JICH created by the Board of Education for School District 38 which mandated expulsion for the possession or consumption of alcohol, irrespective of circumstance, as behavior which is detrimental to the welfare or safety of others.
A. STATEMENT OF THE CASE
A. Nature of the Case Plaintiffs/Appellants Charles Piechota, Christopher Winans, and Robert Quinn Marrs, Jr. were expelled from Lewis-Palmer High School for violating School District 38's drug and alcohol policy, JICH, which stated that the use or possession of drugs or alcohol was detrimental to the welfare and safety of others. Students found using or possessing drugs or alcohol on school property, in a school vehicle or at a school sponsored function would be recommended for expulsion. Each Appellant 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 Education's decision. Appellants petitioned for judicial review and also sought a temporary injunction against the school board's decision upholding the expulsion. A hearing on the temporary injunction was held on May 6, 1998 before the Honorable D. Richard Toth who granted Appellants request for a temporary injunction. A hearing was held before the Honorable Theresa M. Cisneros on August 26, 1999 to finally resolve the issue of Appellants expulsion. The Court upheld the expulsion of each Appellant finding that the mere use or possession of drugs or alcohol, regardless of the quantity, is detrimental to the welfare and safety of other students. 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. The School District developed a Code of Student Conduct and Discipline (which is a collection of all the school policies that relate to this subject). The School District 38 also generated a Student Handbook. (See Record of Expulsion Proceedings, Section 4) Each Appellant acknowledges receiving this handbook. Policy JICH, Drug and Alcohol Possession/Use by Students is part of the Code of Student Conduct and Discipline. (See Record of Expulsion Proceedings, Section 1). Each Appellant denies receiving a copy of this policy and there is no evidence in the record which proves that any of the Appellants received this policy, much less the entire Code of Student Conduct and Discipline. (See Charles Piechota Record of Expulsion Proceedings, Section 10, page 6 wherein Mr. Piechota notes that he has never seen this policy before; see Robert Quinn Marrs, Jr. Record of Expulsion Proceedings, Section 9, page 8 and 9 wherein Mrs. Marrs states that neither the students or the faculty was aware of this policy; and see Christopher Winans Record of Expulsion Proceedings, Section 10, page 16 wherein Christopher Winans states that neither he nor Mr. Kettles was aware that expulsion would occur.) When Mr. Piechota asked for any evidence his son received the Code of Student Conduct and Discipline, including Policy JICH, no such proof was provided to him. (See Record of Expulsion Proceedings, Section 10, page 6.) Each Appellant requested a hearing in front of the Board of Education. The Board of Education affirmed the Expulsion. (See Record of Expulsion Proceedings, Section 11.) The Appellants collectively sought judicial review pursuant to C.R.S. 22-33-108. The Court granted a temporary injunction and the Appellees were permitted to make additional findings which were submitted to the Appellants some months later. Charles Piechota On the weekend of April 3, 1998, Appellant 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. Appellant Piechota walked into a motel room in which other band members were consuming alcohol. He was handed some alcohol, he took a drink, passed it back to the person from whom he received it and shortly thereafter left the room. (See Record of Expulsion Proceedings, Section 9, page 2.) Mr. Kettles, the band director and only chaperone with 32 students on a three day overnight trip, discovered the alcohol later and asked those present which students had been drinking. Appellant 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 of Expulsion Proceedings, Section 9, page 2.) Appellant Piechota received an immediate five day suspension and Principal Keith Jacobus recommended expulsion. (See Record of Expulsion Proceedings, Section 5.) On April 10, 1998, Appellant Piechota exercised his right to have a hearing before the superintendent, Dallas H. Strawn. Appellant Charles Piechota, by his father, specifically requested that Appellee provide him with the facts which demonstrate how Appellant Piechota's was detrimental to other pupils or to school personnel. Mr. Dilley (the Superintendent's Hearing Officer) after failing to answer the question, advised Mr. Piechota that he would not debate the matter. Ultimately, Dr. Strawn expelled Appellant Piechota by letter dated April 13, 1998. (See Record of Expulsion Proceedings, Section 8.) Mr. Dilley presented factual Findings in a memorandum dated April 13, 1998. (See Record of Expulsion Proceedings, Section 8.) Said findings contain nothing more than the fact that Appellant Piechota consumed alcohol which was detrimental to the welfare and safety of others. Further, these findings did not make note of the lack of chaperones, the fact that Appellant Piechota self-reported his offense even though he was not at risk of being discovered or the fact that this was Appellant Piechota's first offense of any kind. Christopher Winans On the weekend of April 3, 1998, Appellant 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, Appellant Winans was in a room where the bottle of alcohol was located. He poured alcohol from the bottle into a cup and filled the remainder with juice and then walked in between other rooms socializing. Mr. Kettles, the band director and only chaperone, discovered the alcohol later and asked which students had been drinking. Appellant Winans admitted at that time that he had been drinking. (See Record, Vol. I, page 25, paragraph 5.) Appellant Winans received an immediate five day suspension and Principal Jacobus recommended expulsion. (See Record of Expulsion Proceedings, Section 5.) On April 10, 1998, Appellant Winans exercised his right to have a hearing before the superintendent, Dallas H. Strawn. Ultimately, Dr. Strawn expelled Appellant Winans by letter dated April 13, 1998. (See Record of Expulsion Proceedings, Section 8.) Mr. Dilley presented factual Findings in a memorandum dated April 13, 1998. (See Record of Expulsion Proceedings, Section 7.) Said findings contain nothing more than the fact that Appellant Winans consumed alcohol which was detrimental to the welfare and safety of others. Further, these findings did not make note of the lack of chaperones, the fact that Appellant Winans freely admitted to his offense even though he was not caught in the fact or the fact that this was Appellant Winans first offense of any kind. Robert Quinn Marrs, Jr. On the weekend of April 3, 1998, Appellant 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, Appellant 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 of Expulsion Proceedings, Section 9, page 15). Appellant Marrs left the room shortly thereafter. Appellant Marrs turned himself into Mr. Smith on April 6, 1998. Appellant Marrs received an immediate five day suspension and Principal Jacobus recommended expulsion. (See Record of Expulsion Proceedings, Section 5.) On April 10, 1998, Appellant Marrs exercised his right to have a hearing before the superintendent, Dallas H. Strawn. Ultimately, Dr. Strawn expelled Appellant Marrs by letter dated April 13, 1998. (See Record of Expulsion Proceedings, Section 8.) Mr. Dilley presented factual Findings in a memorandum dated April 13, 1998. (See Record of Expulsion Proceedings, Section 7.) Said findings contain nothing more than the fact that Appellant Marrs consumed alcohol which was detrimental to the welfare and safety of others. Further, these findings did not make note of the lack of chaperones, the fact that Appellant Marrs self-reported his offense even though he was not at risk of being discovered or the fact that this was Appellant Marr's first offense of any kind. SUMMARY OF THE ARGUMENT The District erred in upholding the expulsion of Appellants Piechota, Winans and Marrs as there was no evidence presented upon which the Appellees could have found behavior which was detrimental to the welfare and safety of other students or school personnel. The District Court's findings that the record contained evidence that the behavior or Piechota, Winans and Marrs was detrimental to the welfare and safety of others as specified at C.R.S. 22-33-106(1)(c) was error. The mandatory expulsion specified under Policy JICH violates the requirements of C.R.S 22-33-106(1)(c) and by excluding any consideration of mitigating facts or circumstances deprives Appellants of due process of law. ARGUMENT
A. The Court erred in Upholding the Expulsion of Appellant Piechota, Appellant Winans and Appellant Marrs as the Board of Education exceeded its Authority and Abused its Discretion This action was brought before the District Court pursuant to C.R.S. 22-33-108 and Rule 106(a)(4), C.R.C.P. Proceedings under C.R.C.P. are "limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on evidence in the record before the defendant body or officer." The District Court erred in upholding the expulsion of Appellants as there was no competent evidence in the record to support the factual findings made by the Board of Education of Education. Board of county Commissioners of Routt County v. O'Dell, 920 P.2d 48 (Colo. 1996). "No competent evidence means that the governmental bodies' decision is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority." Board of County Comissioners of Routt County v. O'Dell, supra,at Page 50. "The absence of specific findings is not fatal to an administrative board's decision if there is support in the record for the decision, and it adequately apprises a reviewing court of the basis for the ruling." Ross v. Denver, Health & Hospital, 883 P.2d 516, 520 (Colo. App. 1994). Furthermore, "(i)n a C.R.C.P. 106(a)(4) proceedings, the reviewing court may consider in determining the existence of an abuse of discretion, whether the hearing officer midsconstrued or misapplied the applicable law." Board of County Commissioners of Larimer County v. Conder, 927 P.2d 1339, 1343 Colo. 1996). Consequently, the Court erred in upholding the expulsion as this expulsion was mandatory pursuant to JICH. However, the Appellant's actions did not meet the criteria for mandatory expulsion under C.R.S. 22-33-106 (1)(d). Appellees expelled Appellant Piechota and Appellant Marrs for consuming a single sip of alcohol. Appellees expelled Appellant Winans for consuming slightly more alcohol. After the District Court entered the injunction and ordered that Appellees could provide more detailed findings in order to support the expulsion, the Board found: Students transporting four bottles of alcohol on a school bus to a school sanctioned event cannot be condoned. Inviting other students into a motel room and making four bottles of alcohol available for them to drink, creates extreme safety problems and a threat of physical harm to all students involved. Consuming even a small amount of alcohol by a student can create behavior problems. Students using and possessing alcohol violates the moral code taught to the students in their schools. The consumption of alcohol by a student on a school sponsored trip causes damage to the School District and the high school's reputation and could lead to disqualification of the school from other state sponsored events. Allowing a student to violate the alcohol policy will set a dangerous precedent as other students will believe they can consume alcohol at school events without fear or disciplinary action. Consuming alcohol at a school event creates a significant liability issue for the school district. If a student consumes alcohol and causes harm to either himself or others, the school district may be subject to adverse legal action. (See Record of Expulsion, Section 11.) The foregoing discussion has little applicability to Appellants. For example in the first paragraph, none of these Appellants transported the alcohol, made it available to any other students or offered it to any other students. These Appellants were simply offered alcohol by another student and ingested same on a limited basis with no other adverse consequence including behavior problems. In the case of Appellant Marrs and Appellant Piechota, it is important to note that these students censored their behavior and terminated this activity after one sip of alcohol. The second paragraph discusses possible damage to the school's reputation and possible disqualification from state sponsored events. There was no discussion or evidence showing those possibilities would become probabilities considering the circumstances and facts in this case. Regardless, neither loss of reputation or potential disqualification are consequences fitting the statutory defintion of "welfare and safety of others". The third paragraph discusses that "allowing a student to violate the alcohol policy" would set a dangerous precedent for discipline of students in the future. In this case, all Appellants acknowledged their behavior had been inappropriate and expected discipline. However, they were unaware that policy JICH restricted the choice of discipline to expulsion. Had their actions and honesty been met with something less than expulsion, does the Appellee honestly believe that other students would view this as being able to escape discipline? Finally, the fourth paragraph discusses the liability to the school if students consume alcohol. Again, regardless of how true this statement is, it does not fit within the definition of behavior which is detrimental to the welfare and safety of others. None of the findings mentioned any behavior specific to the Appellants in this case, but rather discussed only the possibility that a failure of the Board of Education to act could result in a loss of reputation, potential disqualification from future state sponsored events and a reduction in the deterrent effect of the policy among students. There was no evidence available in the Record of Proceedings to support a finding, even as made in the additional findings, that the behavior of the Appellants in this case resulted in a detriment to the welfare and safety of others. Because the record is devoid of evidence upon which the Appellees could determine that Appellants actions were detrimental to the welfare and safety of others, the decision to expel is arbitrary and capricious. The District Court erred in not so finding. A "rule adopted pursuant to a statutory rule-making proceeding is presumed to be valid, and the burden is upon the challenging party to demonstrate "that the rule-making body acted in an unconstitutional manner, exceeded its statutory authority or otherwise acted in a manner contrary to statutory requirements." City of Aurora v. Public Utilities Comm., 785 P.2d 1280, 1290 (Colo. 1990), quoting Regular Route Common Carrier Conference, 761 P.2d 737, 743 (Colo. 1988). In making policy, Appellees are required by C.R.S. 22-32-109(w) to be consistent with Article 33 of this title regarding suspension and expulsion. In this case, Appellees exceeded their statutory authority by making a policy inconsistent with C.R.S. 22-33-106(1)(d). Therein, expulsion is made mandatory for possession of a dangerous weapon or if a student is found distributing drugs. Neither of these circumstances is present with any of these circumstances is present with any of the Appellants. Thus, an official policy mandating expulsion violates C.R.S. 22-32-109(w) and C.R.S. 22-33-106(1)(c) and is therefore exceeds Appellee's statutory authority and acted in a manner contrary to statute which is an abuse of discretion. In essence, Appellees are exercising unfettered discretion which it not the intention of C.R.S. 22-33-106(1)(c). See Board of County Commissioners v. Conder, 927 P.2d 1339 (Colo. 1996). B. The District Court erred in determining that Appellant Piechota's, Appellant Winans' or Appellant Marr's behavior was detrimental to the welfare or safety of others pursuant to C.R.S. 22-33-106.
C.R.S. 22-33-106 (1)(c) provides that a school may expel a student for "(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...". Pursuant to C.R.S. 22-33-106 (1)(c), the school district is required to evaluate whether the behavior "is" detrimental to other students or school personnel, not whether the behavior "may be" detrimental or "is possibly" detrimental. To this extent, the school district is required to provide findings specific to the incident leading up to expulsion which were detrimental to other students or school personnel at the time. It does not permit a generic statement of detriment that would be applicable regardless of the circumstance for which it was offered by the school or in this case Appellees. In addition, a school may identify behavior that creates a threat of physical harm to the child or other children. Without question, Appellant Piechota and Appellant Marrs consumed a single sip of alcohol. Both of these Appellaants subsequently made the decision to not engage in this behavior further. Appellees provide no evidence that this behavior created a threat of harm to the Appellant Piechota or Appellant Marrs or any other students. More specifically, Appellees provided no finding as to how much alcohol these Appellants ingested. Nor did Appellants provide any evidence as to how much alcohol must be ingested before a person begins to experience changes in behavior. The pharmacological effect of alcohol on the human are very well understood. More importantly, there is no evidence presented by the Appellees that there was any behavior changes in these Appellants much less changes which presented a threat to the Appellants or any other students. Appellant Winans consumed slightly more alcohol. However, in this case, Appellees offer no evidence that his behavior created a threat of harm to Appellant or any other students. Again, there is no evidence as to how much alcohol Appellant Winans consumed; nor is there any evidence that Appellant Winans did anything more than socialize with other students. Finally, there is no evidence that there was any behavior change in these Appellant Winans which presented a threat to the Appellant Winans or any other students. Unfortunately, there is no case law addressing expulsion under a similar set of facts. In fact, case law discussing C.R.S. 22-33-106(1)(c) is sparse. One such case is People in the Interest of K.P. 514 P.2d 1131 (Colo. 1973). Therein, the Supreme Court held that C.R.S. 22-33-106(1)(c) is not unconstitutionally vague. In commenting on People in the Interest of K.P, supra, the Court in Weissman v. Board. of Education, 547 P.2d 1267 (Colo. 1976) stated that the statute "was strictly limited to conduct hostile to welfare, safety, or morals and could not be utilized to prohibit all forms of socially unacceptable conduct". While Weissman v. Board. of Education, supra, offers some assistance, the clear language of C.R.S. 22-33-206(1)(c) provides the primary guidance for analysis of Appellee's actions. When this analysis is made, it is apparent that there are no facts or findings by Appellees which permit expulsion under the theory that Appellants' behavior was detrimental to the welfare or safety of any student or teacher or that there was any behavior which creates a threat of physical harm to the Appellants or any other students. C. The District Court Erred in Determining that the Expulsion was Proper Pursuant to Policy JICH
Appellees 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 of Expulsion Proceedings, Section 11, page 1). This code of conduct and discipline is to be consistent with the law and article 33 and it is to be distributed to the students once during high school and posted in the schools. (See C.R.S. 22-32-109(w)). In addition to the required code of conduct and discipline, Appellees also generated a Student Handbook which is separate and distinct from the Code of Conduct and Discipline created by the Appellees. While the Student Handbook references expulsion as a possible punishment for use or possession of alcohol, it does not specify that such a punishment would apply to the use or possession of alcohol or drugs with respect 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 of Expulsion Proceedings, Section 4). The Appellants acknowledge receipt of this handbook. Policy JICH, Drug and Alcohol Possession/Use by Students, is contained within the Code of Conduct and Discipline. This policy states that 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. Violation of this policy would result in a recommendation that the violator be expelled. (See Record of Expulsion Proceedings, Section 1, page 1). No evidence in the record verifies that any of the Appellants received this document. (See Charles Piechota Record of Expulsion Proceedings, Section 10, page 6 wherein Mr. Piechota notes that he has never seen this policy before; see Robert Quinn Marrs, Jr. Record of Expulsion Proceedings, Section 9, page 8 and 9 wherein Mrs. Marrs states that neither the students or the faculty was aware of this policy; and see Christopher Winans Record of Expulsion Proceedings, Section 10, page 16 wherein Christopher Winans states that neither he nor Mr. Kettles was aware that expulsion would occur.) In addition, Appellant Charles Piechota received and signed for on more than occasion prior to this incident a participation Contract for Athletics in which there is no mention of expulsion as a consequence for the use or possession of alcohol, only possible suspension from athletic participation. It also states that self reporting willl be viewed positively. (See Record of Expulsion Proceedings, Section 9, page 14). Therefore, if the Appellants were not in receipt of this policy, they had no way of knowing that Appellee considered use or possession of alcohol to be detrimental to the welfare or safety of others or that expulsion would result. Moreover, Appellee failed to comply with C.R.S. 22-32-109 (w) by failing to distribute this policy to Appellants during their high school tenure or to post this policy within the school. Contrary to the requirements of the statute, neither the Appellants or the parents received any notice that a policy had been adopted that any possession or use of alcohol during the school activity would result in automatic expulsion regardless of any potential mitigating circumstances. C.R.S. §22-33-106 identifies those behaviors which may or shall result in suspension or expulsion. C.R.S. §22-33-106(1)(a), (b) or (c), states that suspension or expulsion for certain behaviors may be imposed at the discretion of the school. C.R.S. §22-33-106(1)(d) identifies those behaviors for which expulsion shall be mandatory (i.e. possession and distribution of drugs or possession of a weapon). It is also important to note that C.R.S. §22-33-106, or any other statute addressing school law, does not permit a school district to create additional policies pursuant to which a student must be expelled. The statutory maxim, "Expressior unius est exclusio alterius" or the mention of one thing within the statute or other document implies the exclusion of another thing not so mentioned reinforces this contention. Colonial Bank v. Colorado Financial Ser., 961 P.2d 579 (Colo. App. 1998). The state has stipulated in C.R.S. 22-33-106(1)(d) the offenses that warrant mandatory expulsion without regard to circumstance. A school board is not within its authority to add to this legislation. Policy JICH coupled with their arguments that expulsion is required of these students for equity reasons and the absence of any mitigating circumstances in the "findings of fact" letters created by Mr. Dilley (See Record of Expulsion Proceedings, Section 7) clearly demonstrate the school board is treating use or possession of alcohol as an offense warranting mandatory expulsion. This is beyond their authority and inconsistent with the law and thus, also constitutes an abuse of discretion. Appellees justify the expulsion of these Appellants because of the existence of JICH. JICH makes the bald assertion that the possession or use of drugs or alcohol is detrimental to the welfare and safety of other students or school personnel. Moreover, because this policy makes this statement, Appellees have justified expelling Appellants by citing the detriment created within the policy rather than identifying facts (i.e. "findings) specific to the behavior which created the detriment required by C.R.S. §22-33-106(1)(c). While Appellees are free to create policies, and in fact are required to create policies, none of the statutes contained within C.R.S §22-33-101, et seq. permit the policies to take the place of C.R.S. §22-33-106(1)(c) in an expulsion proceeding. Thus, it is irrelevant whether Appellants disagree with the policy or whether the only means by which the policy may be changed is a declaratory action. In the final analysis, under C.R.S. §22-33-1-6(1)(c), expulsion must proceed because there are facts and findings which demonstrate a sufficient nexus between actions complained of and the harm which results. Such has been the requirement of other administrative review cases. See Lakewood v. Colfax Unlimited Assoc. 634 P.2d 52 (Colo. 1981). Moreover, to expel students in compliance with a district wide policy without regard to the facts or mitigating circumstances, deprives Appellants of due process of law. While administrative bodies may create policy, such policy may be challenged and reversed upon a showing that sufficient statutory standards and safeguards, in combination with administrative standards and safeguards, to protect against unnecessary and uncontrolled exercise of discretionary power are in place. Liquor Board v. Cinco, 771 P.2d 482 (Colo. 1989). When a policy mandates expulsion without regard to the particular facts, there are no due process safeguards in place and the hearing before the Board of Education afforded Appellants was a pointless exercise merely for appearances. Thus, the District Court erred when it relied upon this policy in the expulsion of these Appellants. V. Conclusion
The Appellants consumed a small amount of alcohol. This fact is not in dispute. The consumption of alcohol, while inappropriate, did not create a change in Appellant's behavior or any other identifiable harm to any student or teacher. But for the consumption of alcohol, the findings made by Appellee's are so devoid of evidentiary support so as to constitute an abuse of discretion and arbitrary and capricious exercise of authority by Appellees. The District Court erred in not making this determination. Appellees 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 Appellants' conduct is detrimental or creates a threat of physical harm, the Appellees have abused their authority by expelling the Appellants and the District Court erred in upholding this expulsion. Finally, while JICH states that the use or possession of drugs or alcohol is detrimental to the welfare and safety of others, under C.R.S. §22-33-106, the Appellants cannot be expelled pursuant to a policy. Rather, C.R.S. §22-33-106(1)(c) dictates that there must be facts and findings which demonstrate a sufficient nexus between actions complained of and the harm which results. Respectfully submitted this 7th day of April, 2000. LAW OFFICES OF KELLY A-R MCCURLEY |
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