Petition For Declaratory Judgement

DISTRICT COURT, EL PASO COUNTY, STATE OF COLORADO

Case No.

PETITION FOR DECLARATORY JUDGMENT

CHARLES PIECHOTA AND NANCY PIECHOTA, ROBERT E. WINANS AND LAURA LYNETTE WINANS, ROBERT QUINN MARRS, SR. AND ANDREA MARRS, WILLIAM NESTLERODE AND STEPHANIE NESTLERODE and CHRISTOPHER KEMP AND STEPHANIE KEMP,

Plaintiffs,

SCHOOL DISTRICT 38 BOARD OF EDUCATION,

Defendants.

COMES NOW the Plaintiffs by their attorney, Kelly A-R McCurley, and petitions this court for a declaratory ruling on a School District 38 policy and as grounds therefore states as follows:

JURISDICTION AND VENUE

1. All Plaintiffs to this action are residents of El Paso County. All Plaintiffs have or have had students in attendance in School District 38.

2. The Defendant is located within El Paso County.

3. Jurisdiction and venue is proper in the County of El Paso.

CLAIM FOR DECLARATORY RELIEF

4. Plaintiffs incorporate paragraphs 1 and 2 by reference as more fully incorporated herein.

5. Pursuant to C.R.S. 22-32-109 (w) a school board is to

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.

6. Pursuant to this provision, the Defendant created policy JICH, Drug and Alcohol Possession/Use by Students. A copy of the policy is attached hereto as Exhibit A.

7. The policy specifically provides that "(i)t shall be a violation of Board policy and considered to be behavior which is detrimental to the welfare, safety or morals of other students or school personnel for any student to possess, use, sell, distribute or procure or to be under the influence of alcohol, drugs or other controlled substances. The unlawful possession or use of alcohol or controlled substances is wrong and harmful to students."

8. The policy goes on to state that "(s)tudents violating this policy shall be suspended and recommended for expulsion from school and referred for prosecution for the possession, use, sale or distribution of drugs, alcohol or other controlled substances". Under Defendant's "zero tolerance" policy, expulsion is mandatory.

9. This policy is in contradiction to C.R.S. 22-33-106, Grounds for suspension, expulsion and denial of admission.

10. The use or possession of alcohol or drugs is not included among the infractions for which expulsion is mandatory. See C.R.S. 22-33-106(1)(c.5) and (d). Thus, in creating a policy under which the use or possession of drugs and/or alcohol is mandatory expulsion, the Defendant is creating legislation which is not within its powers under C.R.S. 22-32-101, et seq, or 22-33-101, et seq and which is in violation of "expressio unius est exclusio alterius" (inclusion of these express concepts must necessarily imply exclusion of any other concepts).

11. Moreover, Defendants have also created a policy which has judged the effect of a students action and its consequence in advance of its occurrence and without regard to the facts. More specifically, by determining that the use or possession of drugs or alcohol is detrimental to the welfare or safety of other students prior to the conduct occurring, disciplinary code JICH precludes the exercise of discretion in deciding whether the act was detrimental to the student, other students or school personnel. In addition, disciplinary code JICH precludes weighing the comparative seriousness of the act and precludes consideration of mitigating circumstances. In essence a student is not genuinely given due process even though he or she may be provided with the appropriate administrative hearings.

12. Moreover, it would appear that C.R.S. 22-33-106 (1)(c) was enacted so that the administrative body involved in determining whether a student's behavior was detrimental to the welfare or safety of other students or school personnel could establish a reasonable nexus between the student's behavior at the time of its occurrence and the harm to the offending student, another student or a school official.

13. Upon information and belief, Defendant has used this policy to expel over 60 (sixty) students in approximately four years. In some cases, expulsion occurred when a student took a single "sip" of alcohol.

14. Under Rule 57, C.R.C.P., declaratory relief on these issues is proper as the Court is vested with the authority to determine that policy complained of is improper in that it is in fact legislation by a body not authorized to legislate such a matter. In addition, the policy complained of does not permit an administrative body charged with the responsibility of evaluating a student's improper behavior to determine if that behavior was in fact detrimental to another student or to school personnel.

WHEREFORE, Plaintiffs respectfully request that the Court enter a declaratory ruling invalidating Defendant's policy JICH and for such other relief as is proper.

Respectfully submitted this _____ day of October, 1999.

LAW OFFICES OF KELLY A-R MCCURLEY

By:

Kelly A-R McCurley, #17958

Attorney for Plaintiffs

325 Second Street,

P.O. Box 1586

Monument, Colorado 80132-1586

(719)488-2425