District Court - Student's Reply/Closing Argument

I. Statement of the Issue Presented for Review

1.Are the Students' arguments properly before this Court.

2.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. Argument

A.The Students' Arguments are Properly before this Court

Defendants claim that the Students' arguments are not properly before this Court as the Defendants claim that the Students are making arguments beyond their initial petition. This is simply incorrect.

Defendants claim that the Students' have argued that the Defendants have no authority to "create policies regarding what the district considers to be detrimental to the safety or welfare of others. " (Defendants brief, page 3). Such a claim is spurious and misleading.

In proper context, expulsion is mandatory when a student is in possession of a dangerous weapon, when a student is selling a controlled substance or if a student commits an act which if committed by an adult would be considered robbery or assault. C.R.S. 22-33-106(1)(d)(I). These are the only actions for which the legislature made expulsion the automatic predetermined consequence.

Schools have discretion to expel when a student continues to be willfully disobedient or defiant of proper authority, C.R.S. 22-33-106(1)(a), a student willfully destroys or defaces school property, C.R.S. 22-33-106(1)(b), or when a student engages in behavior which is detrimental to the welfare or safety of others, C.R.S. 22-33-106(1)(c). The language of C.R.S. 22-33-106(1)(c) is quite vague. The intent of the legislature in including C.R.S. 22-33-106(1)(c) is to permit schools to determine what behavior is detrimental on a case by case basis. Thus, the students were merely pointing out the obvious which is that language permitting school boards to create policies on what type of acts of commission or omission are detrimental to the welfare and safety of others is conspicuously absent from C.R.S. 22-33-106 (1)(c). Quite frankly, only the most contorted interpretation of the students' brief would have permitted Defendants to make such an argument.

Yet, it is appropriate to note that the Defendant has substituted its judgment for that of the legislature by adding an additional infraction for which expulsion is mandatory, to wit, possession or consumption of alcohol, regardless of circumstance. More specifically, the Student Conduct & Discipline Code, hereinafter "JICH", states that the possession or consumption of alcohol is "behavior which is detrimental to the welfare, safety or morals of other students or school personnel...". 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." (See record, section 3, JICH, Drug and Alcohol Possession/Use by Students).

As a practical matter, Defendants are arguing that consistency in the application of their policy is one reason for this Court to uphold the expulsion. From this, the Court can properly infer that Defendants have expelled each and every student who has possessed or consumed alcohol regardless of circumstance. Since this is the case, it is clear that the Defendant has taken it upon itself to unofficially legislate an additional offense for which expulsion is mandatory, possession or consumption of alcohol. Insofar as the Defendant and its board are not elected for this purpose, their actions in this regard have exceeded their jurisdiction. Rule 106 (a)(4), C.R.C.P.

B.The School Board exceeded 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.

Defendants claim that the Board of Education made appropriate findings. This claim is based on Defendants argument that policies were generated, specifically JICH, which stated that the use or possession of alcohol by a student would be considered to be behavior which is detrimental to the welfare and safety of others. (Defendants brief, page 7) Defendants argument fails for two reasons. First, the students were unaware that "zero tolerance" meant mandatory expulsion. Second, Defendants failed to make reasonable, legitimate findings that the Students' conduct was detrimental to other students or school personnel.

1.The students were unaware that their conduct would automatically result in expulsion.

If the Defendant is going to rely on the fact that JICH will form the foundation for expulsion, it is incumbent on Defendant to insure that all students have received this policy and prove that each Plaintiff received a copy. The record is clear that none of the Students received JICH. (See Charles Piechota record, section 10, page 6, and section 11, page 10, wherein Mr. Piechota notes that he has never seen this policy before while referring to a power point presentation; see Robert Quinn Marrs, Jr. record, section 9, page 8 and 9 wherein Mrs. Marrs states that neither the students or the faculty was aware of this policy; see Christopher Winans record, section 10, page 16 wherein Christopher Winans states that neither he nor Mr. Ketels was aware that expulsion would occur; and see Andrew Saletta record, section 10, page 18).

Defendants claim that the Students had notice of the Defendants' policy of expelling a student for the use or possession of alcohol. (See Defendants' brief, page 14). The students admit that each received a copy of the handbook. The handbook states:

Lewis-Palmer High School is a Drug Free School Zone and follows a policy of "ZERO TOLERANCE" concerning the possession, use or distribution of alcohol, or possession of drug paraphernalia, or other drugs. This includes students who leave campus and return under the influence of alcohol or drugs. Students who use, sell, distribute, or are in possession or alcohol or a controlled or illegal substance will be subject to expulsion and will be referred for prosecution. (See record, section 4, handbook, page 10).

This paragraph in no way makes it clear to a student that expulsion is mandatory. More importantly, the paragraph and the handbook in general is silent as to the consequence to a student drinking alcohol off campus but at a school sponsored event

The policy found in JICH discusses mandatory expulsion even for the use of alcohol at off campus events. Defendants claim that there is competent evidence that the students received JICH. Such is simply not true. At Plaintiff Saletta's hearing, for example, Mr. Dilley stated "I'd hand to you a copy of the high school --- Lewis-Palmer High School student handbook and a copy of the 1997/'98 student code of conduct. And that's a district conduct code. And those two documents are given to the students at Lewis-Palmer High School." (See record, section 10, page 4). There is nothing in this statement specific to Plaintiff Saletta demonstrating that

Plaintiff Saletta as an individual received JICH nor is there any written proof that Plaintiff Saletta or any of the other Plaintiffs received this document.

More amazing is Defendants spurious statement that the "record of proceedings does not contain any evidence to contradict Mr. Dilley's statement." (See Defendants brief, page 15). The Students would again direct the Court to the previously cited record on this point wherein it is clear that each family disputes having seen JICH and notes that even Mr. Ketels was unaware that expulsion would be the consequence of the Students' actions. (Charles Piechota record, section 10, page 6 wherein Mr. Piechota notes that he has never seen this policy before; see Robert Quinn Marrs, Jr. record, section 9, page 8 and 9 wherein Mrs. Marrs states that neither the students or the faculty was aware of this policy; see Christopher Winans record, section 10, page 16 wherein Christopher Winans states that neither he nor Mr. Ketels was aware that expulsion would occur; and see Andrew Saletta record, section 10, page 18).

Therefore, while the students had the handbook, there is nothing in the handbook which would put any of the Students on notice that expulsion would be mandatory if they were found to have been drinking on or off campus. While JICH states clearly that the consequence for drinking even off campus will be expulsion, there is no clear evidence that the individuals Students in this case received notice of the policy. More importantly, in each of their hearings before the Defendants, each denied they had received a copy of the policy.

Thus, there was no reliable evidence before the Defendants at the hearing before the school board that any of the Students could have known that expulsion would be mandatory for admitting to drinking on a school sponsored activity.

2.The Defendant failed to make reasonable and legitimate findings that the Students' conduct was detrimental.

Defendants spend a wealth of time detailing the underlying proceedings which have lead all parties to this appeal. Little of this is important except that Mr. Dilley found that the students had consumed alcohol which was detrimental to the welfare and safety of other students. Simply put, the failure to supply facts which demonstrate the detriment that each student posed to his fellow student or to Mr. Ketels is what prompted this appeal. After this Court issued the injunction, Defendant issuing a lengthy, but unenlightening, determination regarding the expulsion.

Said determination included the following paragraph:

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 Students take issue with virtually every aspect of this statement. Plaintiff Muckenthaler assisted with transporting the alcohol. Plaintiffs Piechota, Saletta, Winans and Marrs did not. Defendants make no distinction permitting the Court to be misled into believing that all Plaintiffs participated in this action. There is no evidence in the record that Plaintiffs Piechota, Saletta, Winans and Marrs transported alcohol.

Likewise, Defendant discusses the invitation extended to other students to come into a room and drink alcohol. Again, this is misleading and false as none of the Students involved in this litigation invited other students into the room or encouraged other students to drink and there is no evidence in the record to the contrary. If these Students did not engage in this behavior, then the Students did not create a detriment or threat of physical harm.

Defendants also contend that consuming even a small quantity of alcohol can create behavior problems. Defendants do not substantiate this statement with any facts or references to the record. More important, such a statement is general and again, not specific to any of the Students.

Finally, violation of the moral code taught to students in their school, if such a code exists, setting a dangerous precedent by "allowing a student to violate the alcohol policy"(1) , requiring the only chaperone on the trip (2) to divert his attention from the other students or damage to a district's reputation (3) do not qualify as conduct which is detrimental to the welfare or safety of others. __________________________________________________________________________

This is again a false statement on behalf of the Defendants. The students are not requesting that they be permitted to violate policy. They acknowledge that some level of discipline such as suspension would have been appropriate. Why the Defendant continues to view this as a "zero sum gain" is unclear. Common sense dictates that use and possession of alcohol should not be tolerated. Likewise, common sense dictates that other forms of discipline short of expulsion was available to the district.
There was only one chaperone for thirty-two students. Perhaps if the school had handled this more responsibly by insisting on more chaperones, i.e. as one chaperone for every ten students (such as is being implemented this year), the alcohol would have been discovered much earlier and thereby not have been made available to the students at issue in this case. In making this argument, the Students are in no way rejecting the responsibility that each of them has for making the choice to drink alcohol. However, it should be clear that both parties to this action bear some responsibility here. Defendants refuse to accept any responsibility for their role in this case.
Defendant also states that the behavior of the Students could potentially disqualify the school from such events. Again, Defendants cite no facts, rule or regulations which could have this effect.

Defendants attempt to justify the expulsion by arguing that the Students consumed alcohol and a policy exists which says that this conduct is detrimental to the welfare and safety of others. C.R.S. 22-33-106(1)(c) requires more. If this were not the case, the Defendants could issue a policy claiming that any number of behaviors ( for example, religious speech, kissing, the formation of any heterosexual or homosexual relationships, etc.) at school or at a school sanctioned event is detrimental to the welfare and safety of others. The Legislature did not intend to give public school carte blanche to determine what is detrimental to the welfare and safety of others by way of policy. Rather, such a determination was to be made on a case by case basis based on the facts of a particular event as it unfolds.

Defendants also argue that C.R.S. 22-33-106(1)(c) does not require actual injury. Plaintiffs agree. Plaintiffs further agree that the Legislature contemplated the threat of physical harm to the student. However, Defendants have never recited any actual injury or any threat that any of these students posed to themselves or to others. Defendants go on to make the absurd argument that perhaps students who bring guns or drugs to school should not be expelled if they don't use these items. Since expulsion in the gun example is mandatory, this example should be disregarded. Likewise, the drug example falls under C.R.S. 22-33-106(1)(c,) unless the student was selling drugs in which case expulsion is mandatory, and as such, should again, be viewed on a case by case basis with the school making a actual finding of why the conduct was detrimental. Thus, both arguments are without merit.

What is meritorious here is that despite Defendant's assertion to the contrary, the Defendant has never made specific credible findings regarding the detrimental nature of the Students' conduct. Moreover, even though the possession or consumption of alcohol by a minor is illegal, this also does not permit the Defendants to automatically make a finding of detriment as they claim. Assaulting another person is also illegal and yet a fight between two students at school seldomly results in an automatic expulsion, particularly for a first offense.

In its Order issuing the injunction, this Court made the statement that it didn't "think the school would argue that the school can set any kind of punishment they wish for any kind of offense. If you want to make that argument, let me know." (Order, page 17). Yet it is clear that Defendant has, in fact, made this the crux of its case before this Court. More specifically, the Defendant issued a policy (or created de facto legislation) stating that the use of alcohol is detrimental to the welfare and safety of students and school personnel and that violation of the policy will result in expulsion. Because the Plaintiffs were candid in their wrongful actions (consuming alcohol), the Defendant expelled each Plaintiff without a factual presentation of why each of the Plaintiff's actions were detrimental to the welfare and safety of other students or how their actions presented the threat of physical harm to other students.

As a final matter, Bauer v. City of Wheat Ridge, 513 P.2d 203 (Colo. 1973), is controlling for the proposition that as as in Bauer, supra, the Defendants failure to make a factual finding of detriment is an abuse of its discretion.

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.

Respectfully submitted this 11th day of December, 1998.

LAW OFFICES OF KELLY A-R MCCURLEY