Our Personal Battle Is Over

January 2001 - Well it seemed to take the Appellate Court a long time to review our case and when they did, I don't think they really did. They affirmed the lower court decision with very little discussion. They stated that most of our arguments were not within their jurisdiction to consider. They didn't say why. They didn't speak to any of the case law we cited. After reading it I came away with two impressions. First, it didn't matter what we said they were determined to rule for the school board regardless. The second is that they did not read our arguments closely or consider them seriously. The case law that states that it is an abuse of discretion for an administrative agency to rule in a manner that is not consistent with the law was not even mentioned in their decision. This was key to our case. If they had said it wasn't valid or applicable for this reason, I would have felt much better but they did not say anything. So either they didn't even read our arguments or it didn't matter what we said, they had made up their minds ahead of time. They may have bought the school board's argument that many of our arguments could not be considered because they dealt with the policy and thus were beyond the court's jurisdiction as a policy could only be challenged via a declaratory judgment action in the original trial court. We didn't feel that was necessary because the policy as written does not say expulsion is mandatory, it does not say to ignore circumstances or the severity of the offense. These are products of the Board's implementation of the policy, products of their discretion. These things are black and white. They had the policy they could have read it for themselves but apparently didn't. They were not impartial in this case in my opinion. It seems like they ruled on this based on the politics of the case, not the law.

I guess I was naive to expect true a fair hearing. This has been my only experience with the courts. I hope it is my last. It makes me pessimistic about others chances to prevail against tyrannical school boards.

In retrospect, I wish we had filed a declaratory judgment action in the trial court. Perhaps that would have made a difference. Perhaps then our most important arguments would have been heard.

Another mistake may have been the grouping of our cases together as it is obvious that they didn't try the students individually. For example, the court made the point of stating that the evidence of detriment to others was the fact that the sole chaperone's attention was diverted from the other students to attend to ours. Well if they had read our arguments, we made it crystal clear that two of the student's involvement in this fiasco wasn't even known until several days after the band trip. So it is completely nonsensical that the chaperone diverted attention to them. If that was true it was true for every kid on that trip! They all should be expelled!

The decision is a joke and the justices should be ashamed. But the good news is, it is over. I hope our school district reads our arguments and takes them seriously even if the court didn't. I hope they now revise the policy to avoid this type of situation in the future.

I am glad it is over though and that my kids are out of the district and that they can no longer hurt them.

STUDENTS REPLY BRIEF FILED!!

September 4, 2000 - On September 1st we filed our Reply Brief to their Response or Answer Brief. That should be the end of the arguments at the Appellate Level. Now we just sit back and wait for a decision. I feel good about our chances but as mentioned before this is definitely a David and Goliath proposition. Time will tell. I suspect we could get a decision in as little as a month but if it takes 6 months, I wouldn't be surprised. Of course if the School Board isn't confident about their chances they will probably pull another last minute maneuver to divert attention from the arguments and/or delay things even longer. But maybe not...

August 18, 2000 - The Appeal is finally back on track. On about the 10th of August they finally responded to our opening brief (submitted back in April of 2000). I personally was under whelmed by it. Of course it is not important what I think but what the three judge panel that hears the appeal thinks. The deck is definitely stacked against us at this point because the courts are supposed t defer to judgment of school boards and Appeals Courts are supposed to defer to the judgment of the lower courts. But I am still hoping we might pull this out in the bottom of the ninth. All the kids (including my son have moved on to college) at this point the most of the damage that the expulsion will cause to them has been caused. It is for the principle of the matter and for the sake of other kids that could benefit from some additional supportive case law (if we win) that we continue the battle.

The school board did not respond to a number of items in our opening brief. That surprised me. They stated that many of our arguments pertained to the validity of the policy and a review/determination of the validity of the policy was not proper for either the district court or the appeals court unless it was pursued by us via a declaratory judgment action. Which we attempted (see below) but we were a day late. However, I think they are mistaken in this regard.
My rationale as to why I think they have made an error in this regard is outlined in the following argument that I submitted to our attorney for her consideration relative to our reply brief (which we have yet to file). I have yet to see her draft so I am unsure if the argument has any merit. It seems logical and reasonable to me, but in a court of law I have found that isn't always what matters!

Because "abuse of discretion" occurs when an administrative body rules in a matter that exceeds their jurisdiction, and/or misapplies or misconstrues the law, our arguments are entirely proper for this court to consider. While the court may not be able to rule on the validity of the policy the arguments are still relevant from an abuse of discretion perspective.

Policy JICH is not law. The school board has all the authority or discretion it needs to modify or ignore this policy. But more importantly policy JICH does not mandate expulsion. It recommends expulsion. It does not stipulate that the context of the offense, the severity of the offense or the existence of mitigating circumstances is to be ignored. These are aspects or attributes of the implementation of this policy, a product entirely of the school board's discretion (or lack of it). This is entirely proper for this court's to consider and it was entirely proper for the district court to consider under the abuse of discretion standard.

"The Board of Education believes that strict enforcement of its alcohol policy is necessary. Ever since this policy was implemented, all students found to have violated the zero tolerance policy have been expelled." This is a quotation taken from page 3 of the "Findings Document" produced by the School Board at Judge Toth's direction. On page 4 of this document this practice of mandatory expulsion irrespective of circumstance is reinforced by the following statement, " The Board of Education has enforced this rule equally against all student and believes it is important to maintain its consistent policy." This practice of mandatory expulsion, coupled with the complete absence of any tangible consideration of the specific circumstances of each student's offense clearly exceeds the intent and authority of CRS 22-33-106 1(c), The legislature has stipulated which offenses warrant mandatory expulsion irrespective of circumstance in CRS 22-33-106 1(d). Consumption of a single sip of alcohol is not listed. If the legislature intended it to warrant mandatory expulsion it would have been listed in the statute. The school board has exceeded it's jurisdiction and/or misapplied the law in this regard.

Lastly, ignoring the severity, context and/or mitigating circumstances of the offense at all stages of the appeal process and in the determination of punishment denies the student his right to due process. All of these arguments are proper for the court to consider in determining whether the school board has abused its discretion and/or exceeded it's jurisdiction.

One of the things that really upset myself and the other parents still in this fight was the statement in the school board's answer brief that the kids in the appeal (transported alcohol and invited other kids into the motel room to drink." They know that this isn't true. To me it seems that a blatant lie like this should be illegal! We can easily prove (relatively speaking) that it is a lie. They know which kids transported the alcohol. Those kids have freely admitted their offense. Those kids could easily be deposed as could the band director and other relevant personnel. Unless they have someone willing to perjure themselves they cannot support this fabrication with any evidence whatsoever.

To my relatively non-legal mind lying to try and win your case is a big deal! Look at the trouble Clinton has gotten into! Every now and then in my weaker moments I start to think of the school board members as human beings. Then they do something like this and I yell at myself "SNAP OUT OF IT!" One realizes just how low they are willing to stoop to hurt these kids, and the parents that dared to challenge them.

I am not sure what we can do about this intentional misstatement in their brief but simply taking exception to it in our reply brief may not be the end of it. (I say that it is an intentional misstatement because they have stated it before and we corrected them before.) This time they were even more explicit as they have attributed this behavior to "the students" and in the beginning of their brief they explicitly define who "the students" are.

At any rate, I have added scanned images of the meat of their answer brief to this site for the edification of all. The school board isn't nice enough to send me soft copy which would work much better on the web site. They are not too considerate (smile). When we finish our reply brief that will be posted as well. Look for it towards the end of August, first part of September..

7/7/00 - Surprise Surprise!! The SB replied to our response to their motion to strike our opening brief, dismiss our appeal, and sanction us. What is surprising is that they have withdrawn their motion to strike our opening brief, dismiss our appeal etc... They are an enigma sometimes... Not that they shouldn't have withdrawn their motion. Its just sorta civilized on their part and that has me worried! (smile)....

6/30/00 - Well since the last update, the Court of appeals denied our attorney's motion to incorporate missing documents into the record, but they invited us to resubmit our motion with more specific language as to what we wanted added. In the same breath the Court of Appeals granted the School Board request for a time extension 'til the 14th of June to submit their response to our opening brief (submitted last April). Upon receiving the denied motion with "leave to renew," our attorney immediately resubmitted the motion to complete the record with more specific language as to what we wanted to be added. She submitted this renewed motion the very next day (31st of May). I received my copy of the renewed motion on the 1st of June. The Court's copy was received, but not officially time stamped until the 6th. Meanwhile, the 14th came an went and we did not receive our copy of the School Board's response brief. On or about the 19th we received a copy of a motion from the School Board asking the Appeals Court to strike our opening brief, dismiss our appeal and impose sanctions against us! (These are lovely people we are dealing with!)

At any rate, they are arguing that we are intentionally dragging our feet. That is, they imply with out explicitly stating it that they did not receive the renewed motion. Personally I think they are less than 100% genuine. I think they received it but are pretending they didn't and the real purpose of this latest antic is to divert attention from the legal arguments at stake. They are stalling for time, trying to drive up our legal cost hoping we will cry uncle. (Did I mention that these are lovely people we are dealing with?)

At any rate, we have responded to their motion, and now have to wait for the court to rule on it. Then assuming the court denies it, this thing will get back on track. Although I wouldn't be surprised if they pull another rabbit out of their hat!

This thing is going on 2 and a half years now! Frankly if we win on appeal, I entirely expect this School Board to try to appeal to the Supreme Court. Right from the beginning there have been some mighty big egos at stake. That, unfortunately hasn't changed....

5/27/2000 - School Board Delays the Appeal Process Once Again....

The School Board's response brief was due on May 10th BUT they waited until May 4th to file a motion asking for an extension. There reason for asking for an extension is because the Appeals Court has never ruled on our attorney's motion to add the District Court Record documents that were missing from a Appellate Court Record. The SB has asked the Appellate Court to formally rule on the addition of the missing documents and then give them another two weeks to prepare their appeal.

Now I am admittedly very cynical when it come to the actions of this school board and their attorneys, but this motion could have been filed weeks ago! They should have filed it immediately after we filed our opening brief if they felt it was such an issue. Fact is, I believe they are just looking for away to prolong this whole ordeal. Maybe need more time to figure out their response and looked for any excuse they could find to get more time. I don't know what their thinking is and frankly consider myself all the better for it!

At any rate, Their motion is probably going to add another month or two to the time line. But what the heck the School District has lots of money! Their attorneys make more money the longer it takes and the more motions they make! At probably $400/hour it is certainly in their interest to milk this for all it is worth!

Arpil 2000 - Student's Opening Brief to the State Court of Appeals Filed!

On April 7, our attorney filed our opening arguments before the Colorado State Court of appeals. The school board now has about a month to prepare their response and then I believe we get the last word (a reply to their response). I think we might have a little less than a month to prepare and submit that final brief. Cross your fingers. District Courts tend to defer to School Boards and Appellate Courts tend to defer to District Courts so this is probably a long shot. But personnally when I read our arguments they seem iron clad. But I thought they were iron clad at the district court level! I hope they were. I hope Judge Cisneros missed the mark as badly as I thought she did.

If we win it will be a major upset and will strike a severe blow to the "anything goes" ZT meantality that is rampant in this state. A decision will probably not come down until late summer. By then all the kids that were involved in this incident will have graduated and gone off to college. It has been a long battle....

Feb 2000 - Declaratory Judgment Request Denied and Our Appeal is Delayed!!

Our Declaratory Judgment action got dismissed or more correctly our request for a declaratory judgment was denied. Judge Colt was the presiding judge and from his order it appears he dismissed is mostly because he new we had an appeals court action in progress and felt our policy arguments should be briefed as part of that appeal. He also agreed with the school board's argument that we had to have a current legal issue in the district court that the Declaratory Judgment would relate to. We have a an action in progress but it is in the Appellate Court (not the District Court).

It's unfortunate. It would have been nice to get a court ruling on the constitutionality and statutory validity of Lewis Palmer's Zero Tolerance Policy. I think the School Board knew they were not likely to win on this one, therefore they decided to dodge the bullet instead.

The courts are not all they are cracked up to be. Its definitely a David vs Goliath battle taking on the school board. It doesn't mean the school board is righteous. It means they can get away with almost anything with little to no check and balance. I believe the courts defer to them because they are supposedly elected by the local community. Problem is, it is not uncommon (as in our district) for school board members to run largely unopposed. 4 out of our 5 school board members ran unopposed twice now! Its pretty easy to get some real wackos on the school board if they run unopposed. Even if they do have competition, so few people turn out to vote (especially in off years) that it is again very easy for even an Adolf Hitler to round up enough votes to get elected. For these reasons judicial deference to school boards doesn't make sense to me....

Meanwhile our appeal of Cisneros' decision has been delayed because our attorney discovered that the court record (of our case) is seriously incomplete. Lots of stuff from our appeal to the SB is not there. This is very interesting because if it hasn't been there for some time, it may invalidate the lower court decision that went against us. If we got to revisit the subject in the Disrict Court we could then re-initiate the Declaratory Judgment request! Probably a long shot but our attorney is investigating. Stay tuned....

Dec 1999 - Motion to Dismiss our Request for Declaratory Judgment

Progress on our Declaratory Judgment (DJ) action is stalled because the SB moved for our case to be dismissed. That requires briefs and response briefs etc. so it will take another month or two for that to be resolved before the DJ action can move forward.

They are asking that it be dismissed for really flaky reasons (I hope). As I understand it they are contending that only persons likely to be directly hurt by the policy can challenge the policy via a DJ meaning only the kids can challenge it. That is convenient as it is very unlikely that kids would ever file such a legal action (I am not ever sure kids can legally bring suit). At any rate we have offered to add their names to the suit if that is necessary. Also, the parents certainly have been damaged in a very real way by what we feel are unjust expulsions. I could enumerate many tangible losses and an infinite number of tears.

Secondly, the school board is saying that a DJ cannot be filed unless there is an actual legal controversy. Which I don't understand how they can feel there isn't. We've been fighting them in court for two years now. In their latest reply brief that have argued that the legal controversy must be in the same court as the DJ (District Court). Our legal action is now in the Appeals Court.

I hope they are not correct as the Declaratory Judgment is very important in my opinion relative to determining the general legality of ZT policies in general. In this regard, I am somewhat surprised the SB doesn't want to know themselves. I am left with the conclusion that what they are really interested in is preserving their ability to do anything they want to do when it comes to disciplining our children. They appear to want to avoid any judicial or constitutional accountability.

Its so scary what is happening in our schools today. Tomorrow it will happen in our society in general as these kids are taking notes. They are growing up with an entirely new standard of justice.

Stay tuned a ruling on the motion to dismiss is due any day...

Nov 4, 1999 - Petition for Declaratory Judgment Filed!!!

On Thursday, November 4th we filed a petition for declaratory judgment. A declaratory judgment is a request for the court to rule on a point (or points) of law. In this case we are attacking District 38's Zero Tolerance Policy related to alcohol. If we prevail we will request an immediate injunction against the policy. It will not help our kids (at least not directly) but it will help future kids and families get fair treatment at the merciless and arrogant hands of the District 38 School Board. The results of our declaratory judgment action in the best case scenario could undermine ZT policies in general. Briefly, the questions for the court (in plain language) to consider are:

Since the state legislature has already delineated in statute which offenses warrant mandatory expulsion they have by inference excluded everything else. (For more info on this argument go to the following link.)
We don't think a school board can define a behavior to be detrimental to others apriori, that is, before the offense occurs and without considering the context or mitigating circumstances of the occurrence. Policy JICH does this. We believe the legislature intended case-by-case consideration for expulsions justified under C.R.S. 22-33-106.1.c.
Lastly, Policy JICH specifically prevents the appeal hearing officer from considering the seriousness of the offense or mitigating circumstances in a meaningful way. By so doing we believe it eviscerates the administrative due process hearing and thus denies the student meaningful Due Process.
If the court agrees with this Due Process argument it could be deadly for ZT policies in general. The actual court hearing for verbal arguments and a possible decision is probably 4 to 6 months off, but I am already getting excited!

See actual Petition for Declaratory Judgment

October, 1999 - Appellate Court Here We Come!!!

After much deliberation and discussion with the school district we determined we had nothing to lose (except money) so we decided to appeal Judge Cisneros' Decision.

We had indicated to the BOE that we would not appeal if they could see their way clear to expunge the records (transcript) of kids that were expelled for non-violent offenses but had since stayed out of trouble for a year or more. From our investigations Lewis-Palmer is one of the only schools that denotes expulsion on school transcripts and leaves that notation there forever. Since the three sophomores are now applying to colleges and for scholarships this notation could be very damaging, especially for private scholarships. After all how many corporations want to have an expelled student as their poster boy/girl. In addition, there is concern that later in life that this notation could be a problem such as when applying to medical school (as is planned by two of the students) or when applying for a security clearance.

The BOE does not want to consider this change in the administration of the policy until after our kids have graduated and the damage is done (to our kids). This administrative detail (notation on the transcript) is not part of the policy. It isn't documented anywhere as a required aspect of the policy. It should be something that the Administration (Superintendent) could change without the BOE being involved. But we appear to have a very sadistic and vindictive BOE. They are intent upon trying to teach the parents that dared to challenge their authority a lesson, by hurting their kids.

So we have requested a stay of Judge Cisneros decision pending a ruling by the Appellate Court. We have not yet heard regarding the stay (that is something Judge Cisneros will rule on). The appeal is filed and the process will likely take 6 to 12 months before we get a ruling.

We are optimistic because we have two judges with decidedly different opinions on the case. Judge Toth indicated by his issuance of the injunction and his comments during the injunction hearing that he felt our case was a slam dunk. On the other hand Judge Cisneros felt it was a slam dunk as well except she sided with the school board. The encouraging aspect of history is that the Appellate Court (our next stop) has already sided with Judge Toth (by upholding his issuance of the injunction). We will see...

We also plan to file a civil action. We intend to challenge the legal foundation of the policy itself by requesting what is called a "Declaratory Judgment." We believe the policy as it has been implemented exceeds statutory authority and we intend to take this argument forward for a ruling. If we get a favorable ruling we will then request an injunction against the policy. This may not help our kids but it will help future kids that are subject to the mind numbing judgment of the Lewis-Palmer School Board. More on this action later....

September 2, 1999 - We Lost This Round!!!

We found out on the September 2 that Judge Cisneros ruled in favor of the school board. Needless to say we were disappointed. Our impression is that like the school board the judge did not consider any of the mitigating circumstances and also did not consider many of our arguments that focused on the policy and how it amounts to mandatory expulsion for something that is not authorized by statute.

If I understood her correctly she simply said the SB has the authority to make policies including those that result in a students expulsion. These kids broke the policy and thus were expelled, end of story. She felt that taking a sip of alcohol, leaving the scene and turning yourself in two days later constituted behavior that was detrimental to the welfare and safety of others or at least she didn't feel that the school board's judgment in this regard was unreasonable. There are many other aspects of the story/case that I am unsure she fully appreciated or perhaps simply felt she couldn't consider. Judge Cisneros felt that her hands were tied in many respects. I am not sure they were as tightly tied as she thought they were but what I think doesn't matter much.

We have still options. We can seek a stay of her decision and appeal it. We can also start a separate action to challenge the policy itself via something called a declaratory judgment and/or declaratory relief. We will probably pursue the declaratory judgment route. This is a means by which those feel their rights are violated by a local ordinance, law or policy etc can challenge the legality of that law (or policy) in court. We ask for a ruling as to the legal foundation of the local law. If we get a favorable ruling in this regard that if need be we could pursue an injunction against the policy. This may not help our kids but it will help other kids and would send a message to other schools in Colorado that think that mindless zero tolerance policies are the solution to the complex problems the are meant to address.

I suspect we will continue the fight. If the SB wanted to compromise we may not but hell has not yet frozen over, so fight on it will probably be.....