Findings????

The following is what the Lewis-Palmer School Board produced as "Findings" to support their alcohol based zero tolerance expulsion of our kids. They produced these findings after Judge Toth told them they hadn't produced any that demonstrated a connection between the State Law (CRS 22-33-106(1) (c)) and what these kids did. They are annotated by us with counter arguments and/or clarifications.

Note that throughout this Dr. Ferguson fails to make any specific statements regarding the individual student's behavior (e.g., Peter did this and it was detrimental in this way to Susan). This is because he can't.

DETERMINATION

This matter came before the Lewis-Palmer School District #38 Board of Education ("Board of Education") pursuant to S 22-33-105(2) (c), C.R.S., as amended, as an appeal of an expulsion determination. The Board of Education found there was sufficient evidence to support the hearing officer's Findings of Fact that (the 5 students names extracted by Website author) ("students") violated the School District's policy prohibiting alcohol possession or use by a student.

A Petition for Review of the Board of Education's decision was filed by student in the El Paso County District Court. Student also filed a Motion for Preliminary Injunction. A hearing on the Motion for Preliminary injunction was held on May 6, 1998. At the Preliminary Injunction hearing, the Court remanded the appeal back to the Board of Education to make additional findings which the Court felt were necessary to review the decision made by the Board of Education.

The Board of Education is required by Colorado Revised Statute 22-32-104(1)(w) to implement a written conduct and discipline code which relates to the discipline, conduct, safety and welfare of all students enrolled in the School District. The Board of Education, in compliance with its lawful duty did adopt a written conduct and discipline code. Included in the code is a policy- prohibiting the possession or use of alcohol by students. The Board of Education revised this policy in 1996 to include a "zero tolerance" policy to drugs and alcohol. This revision was discussed with students, faculty, school administrators and parents prior to implementation.

The Policy was revised to include "Zero Tolerance" for alcohol in the summer of 1995, not 96. I believe the policy was last distributed to students in the fall of 95.

It requires distribution annually. None of the 8 students involved expected to be expelled for their offense. One of the parents specifically asked the Band Teacher, on the night of the incident, what the expected consequence of his son's action would be. He was told a 3-5 day suspension.

In September of this year (1998) the district issued to students and parents a School Bus Discipline Contract that states that the worse case consequences for possession or use of alcohol on the bus is the suspension of school bus privileges. In addition, the District has had an Athletic Participation Contract for years that only imposed suspension from athletics for alcohol related offenses. The District contends it only applies to non-school related infractions but that is not what it says.

As stated in the policy, the Board of Education firmly believes the possession or use of alcohol by students is detrimental to the welfare, safety or morals of students and school personnel. The Board of Education believes the unlawful possession or use of alcohol is wrong and harmful to students.

The Board of Education adopted this policy as it was consistent with state and national laws. State law, CRS 12-47-901(i) and (c), as amended, makes it illegal to sell alcoholic beverages to minors and for minors to possess alcoholic beverages. The Board of Education believes it is even more important to eliminate this type of unlawful conduct on school grounds and at school events. The Board of Education incorporated the prohibitions of these statutes into its policy and intended to impose appropriate disciplinary sanctions, consistent with its authority, to punish this unlawful conduct.

CRS 22-33-103 states that a student is entitled to a free public education in their district, subject to the limitations of 22-33-105 and 22-33-106. CRS 12-47-901(i) a and c are not listed as justification or authorization for denying a student their right to a public education. Moreover, if behavior simply needed to be illegal to warrant mandatory expulsion than why is 3rd degree assault specifically excepted by CRS 22-33-106 as warranting mandatory expulsion?

The United States Congress has passed legislation addressing the illegal use of alcohol by students. The "Safe and Drug-Free Schools In Communities Act of 1994" provides in part:

The Congress finds as follows:

(1) The seventh National Education Goal provides that by the Year 2000, all, schools in America will be free of drugs and violence and the unauthorized presence of firearms and alcohol, and offer a disciplined environment that is conducive to learning.

(2) The widespread illegal use of alcohol and other drugs among the Nation's secondary school students, and increasingly by students in elementary schools as well, constitutes a grave threat to such students physical and mental well-being, and significantly impedes the learning process…

(5) The tragic consequences of violence and the illegal use of alcohol and drugs by students are felt not only by students and such students' families, but by such students' communities and the·Nation, which can ill afford to lose such students' skills, talents, and vitality.

(7) Alcohol and tobacco are widely used by young people. Such use can, and does, have adverse consequences for young people, their families, communities, schools and colleges.

(10) Students must -take greater responsibility for their own well-being, health, and safety if schools and communities are to achieve the goals of providing a safe, disciplined, and drug-free learning environment.

The United States Congress, has in this legislation, found the mere consumption of alcohol by students is detrimental to students. This conclusion was reached by individuals who have put great effort into studying this issue. The Board of Education, strongly agrees with their conclusion.

The Board of Education believes the consumption of alcohol 'at a school sponsored event is detrimental to students. The potential for harm is so great when a student consumes alcohol, you cannot wait for someone to physically harm themselves or others before you act.

Is Dr. Ferguson saying we should punish the students now for an action they might take in the future?

This situation is no different than when a student brings a gun to school. The unlawful conduct must be addressed before actual physical harm occurs.

Interesting that Dr. Ferguson has correlated what the kids did to bringing a gun to school. The District changed their weapons policy this summer to say that expulsion was not required for students that self report. Our students self reported. Is a sip of alcohol more threatening than an AK47?

By enforcing the policy prohibiting possession or use of alcohol by students, the Beard of Education is complying with the mandates of both federal and state law. 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.

The Policy does not require expulsion for this offense. It states that expulsion will be recommended. The implication is that depending upon the circumstances some judgment will be applied. This implication is reinforced by the fact that other policies such as the one dealing with the sale of narcotics clearly state that expulsion is mandatory. If the board feels it is mandatory for a single sip of alcohol, the policy should say so.

The Board of Education believes it must treat all students fairly and equally. The Board of Education cannot be in the position of attempting to decide exactly how much alcohol is too much.

Administering the same punishment regardless of the severity or circumstances of the infraction, is not fair; equal yes, but not fair.

"Justice is proportional." - Aristotle

The Board of Education policy prohibits the use or possession of any amount of any amount of alcohol. The Board of Education has enforced this rule equally against all student and believes it is important to maintain its consistent policy.

The hearing officer determined there was a violation of the policy prohibiting the possession or use of alcohol. Students do not dispute the policy was violated.

The students do not dispute that they took a sip of alcohol. Before this incident the students didn't even know that the policy existed. Again, I do not believe the policy has been distributed to students since the fall of 1995.

Colorado Revised Statute 22-33-106 (1) (c) provides one of the grounds for expulsion of a child from public school during a school year is:

Behavior on of 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…

Dr. Ferguson has not yet made it clear how one sip of alcohol or (three sips in the case of one of the students) poised a threat to other students. If Dr. Ferguson is saying that their action poised a threat to their own physical wellbeing, he needs to produce some scientific evidence to support this claim. The Father of Toxicology, the ancient Greek physician, Paracelsus stated "the dose makes the poison." If these doses are physically harmful, why is alcohol permitted by the FDA to be a diluent for children's cough syrup. If Dr. Ferguson is aware if some scientific literature to support his claim that this single very low dose of alcohol is harmful to 150+ pound teenagers he should produce it.

The Board of Education believes the conduct at issue in this case is grounds for expulsion as it violates this statute. Each student could have legally been expelled for up to one calendar year. The Board of Education imposed a shorter time period of only six weeks.

Dr. Ferguson is mistaken, the students were expelled for the semester, not 6 weeks. The only reason they were back in school after 6 weeks is because of Judge Toth's injunction. Without the injunction they would have missed 10 weeks of school, and lost all credit for the semester.

As a matter of law and common sense, the Board of Education finds the possession and use of alcohol by students is detrimental to the welfare, safety and morals of other students and school personnel and creates a threat of physical harm to the child or other children. The State of Colorado has passed laws prohibiting minors from using and possessing alcohol. The Board of Education agrees with the state legislators who found this conduct to be unacceptable and made the conduct unlawful.

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.

First of all, according to District 38's School Bus Discipline Directive that parents and students had to sign this year an alcohol violation on a bus only results in the loss of bus privileges not expulsion. But regardless none of the kids currently involved in the lawsuit did this.

Secondly, Dr. Ferguson implies that these kids were "inviting kids into a motel room to drink." Dr. Ferguson is taking liberties with the facts. None of these kids invited others to drink! Is the district that desperate that they have to make things up?

Thirdly, The parents never condoned the action of their sons. They always believed that an appropriate punishment was warranted, but something less than the academic equivalent to capital punishment (expulsion). Two students that have a fist fight in the hall way, get a three day suspension (per Vice Principal Smith). There is nothing ambiguous about a fist fight posing a threat to others. How does Dr. Ferguson rationalize this difference between how they treat physical violence versus a sip of alcohol?

Consuming even a small amount of alcohol by a student can create behavior problems. Students using and possession alcohol violates the moral code taught to the students in their schools

Dr. Ferguson's claim that "Consuming even a small amount of alcohol by a student can create behavior problems" might have been half way believable had he cited at least one scientific reference. It sounded good though...

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 the disqualification of the school from other state sponsored events.

Can Dr. Ferguson site one specific instance where an incident comparable to this one resulted in the disqualification of a school from other state sponsored events? I don't think so....But again it sounds good.....

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 of disciplinary action.

Judge Toth didn't condone what the kids did and neither did their parents, a reasonable disciplinary action is and always was entirely appropriate. Expulsion is not reasonable. The kids missed 6 weeks of school because they violated the policy. Doesn't this constitute 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 actions.

The School District had 1 chaperone for 32 kids on a 3 day, two night trip. Assistant Superintendent Dilley admitted to Chuck Piechota that this was a mistake. This year they are planning on one chaperone for every 10 students for the overnight band trip to Indianapolis. Perhaps the District is liable....

The possession and consumption of alcohol by students at this event was detrimental to the welfare and safety of all other students on the trip as the band director who was responsible for the supervision of all students, was forced to focus his attention on the students who unlawfully consumed and possessed alcohol. The time and attention of the band director was diverted from his overall responsibility to provided for the safety and welfare of all students on the trip.

The Board of Education implemented a School District policy of alcohol that is consistent with the prohibiting the possession and use purpose of numerous state and federal laws. The School District Policy reflects the communities' feelings and beliefs imposing appropriate discipline for violation of this policy.

The next day after the Board of Education upheld the expulsions, they had a regularly scheduled Board Meeting. Approximately 120 people from the community showed up to protest the expulsions. Is that the community support Dr. Ferguson is referring to?????

The policy accurately reflects the sensitivity and common sense belief of the publicly elected Board of Education, the school Administrators, teachers and community members that the consumption of alcohol by students is inherently detrimental to Students and school personnel.

For all of the above reasons, the Board of Education upholds the decision of the School Superintendent to expel student for the remainder of the school year,

LEWIS-PALMER SCHOOL DISTRICT #38

BOARD OF EDUCATION

BY:Jeffery Ferguson

BOE President