Connecticut Expulsion Laws Bear Unforeseen Consequences
by
Joseph C. Maya on Apr. 17, 2017
Other Education Criminal Juvenile Law
Summary: Blog post on the constitutionality of school expulsion laws in Connecticut.
If you have a question or concern about special education law, school administration, federal standards, or the overall rights of a student, please feel free to call the expert education law attorneys at Maya Murphy, P.C. in Westport today at (203) 221-3100 .
Like a whack on a hornet's nest, Litchfield Judge Referee Walter M. Pickett's Jan. 9 ruling that Connecticut's school expulsion law is unconstitutional strikes a subject already abuzz with controversy.
Long, harsh expulsions are new in Connecticut. They arise from zero tolerance laws like the federal Gun-Free Schools Act, enacted in 1994, expanded with tough enhancements from the state Legislature, requiring mandatory, long-term expulsions--without appeal--for drug dealing and weapons infractions.
The 1994 congressional act threatened to cut off federal school funding to any state that did not mandate an automatic one-year suspension for any student in possession of a firearm on school grounds. Connecticut's Legislature complied, and added drug offenses and other weapons' possession as additional grounds for expulsion.
But this mid-90's crackdown--while effective--comes at a serious price, say lawyers who represent kids in trouble.
Constitutional due-process rights get short shrift, they say, and so do troubled kids at a time when they need education, guidance and structure the most. (Special education students are affected less, having multiple layers of procedural safety nets that make expulsion a rarity.)
Indeed, several education lawyers note, an expelled general education student can--perfectly legally--get no education whatsoever through a 365-day expulsion, which can quickly lead to Dropoutsville.
Last Thursday the General Assembly's Legislative Program Review and Investigations Committee voted to raise a bill to clarify procedures and consequences of school expulsions. Its new legislation would re-define what action warrants expulsion. It would also expand the expelled student's alternative education options, so he or she doesn't fall through cracks in the system.
Both Pickett's controversial decision and the program review initiative may be pressing yesterday's get tough expulsion policies to get smart.
The case of Packer v. Thomaston Board of Education puts one boy's story in the spotlight. On Jan. 9, Pickett ruled that the Thomaston board could not expel Kyle T. Packer, a senior arrested for possession of marijuana off school grounds, after a state trooper allegedly found approximately two ounces in the boy's car trunk Sept. 24.
Packer, who competed in three sports and has made academic honor roll, has not pleaded guilty, his lawyers say. As an alleged first-time offender, he's completing a period of community service, after which the charges are to be dropped, according to his criminal attorney, George Seabourne, of Thomaston's Seabourne & Malley.
He was expelled under Connecticut's expulsion law, C.G.S. 10-233d(a)(1), which has two basic requirements. The school board may expel any pupil . . . whose conduct off school grounds . . . is violative of [a publicized policy of the board] and is seriously disruptive of the educational process.
According to Pickett's decision, at Packer's Oct. 8 expulsion hearing, there was little debate over the school's policy on drug possession. It's forbidden. Seabourne focused on the policy's second requirement--whether Packer somehow disrupted the school's educational process.
Did classes close? Did students stay away? Were there protests? Seabourne quizzed Thomaston High School Principal Robin Willink at the hearing. She conceded there was no such dramatic disruption.
But the principal said several unnamed teachers spoke to her about Packer's arrest. The concerned teachers' conversations were the main example of the educational process being disrupted, Seabourne said.
After the hearing, the school board voted to expel Packer until the end of the marking period--Jan. 23, 1998.
But Packer's parents knew of other students' arrests for mailbox vandalism, and for alcohol and marijuana possession, which didn't result in a hearing or expulsion. They felt Kyle was being singled out, says Seabourne.
Fighting back wasn't easy. Although school expulsions follow the Administrative Procedures Act, one aspect of the APA is omitted--the right of appeal.
Not giving up, the Packers consulted with William A. Conti and Steven H. Levy in the Torrington firm of Feb-broriello, Conti & Levy. Conti says, We felt there had been a miscarriage of justice here. Packer already had to face court on his arrest charges, and punishment by his parents, says Conti. The school had no need to step in and punish the boy, Conti says. That's why we have families.
Conti had previous experience as a prosecutor in juvenile matters dating back 20 years, and to him, today's new emphasis on banning kids from school seemed a little wrong-headed. It used to be, he says, that disciplinary remedies would require students to attend punctually and faithfully.
As a first step in their defense, Conti and Levy applied to Litchfield Superior Court for a temporary restraining order to lift Packer's expulsion, and on Nov. 5, Pickett granted the order without a hearing, allowing Packer to return to school, and set a temporary injunction hearing for Dec. 1.
George J. Kelly Jr., of Hartford's Siegel, O'Connor, Schiff & Zangari, represented the school board, and contended that it had proven its case. Kelly quoted at length from Principal Willink's often oblique hearing testimony.
Teachers did approach and say what is going on with Kyle; what are you going to do; how is the board going to handle this. This is really a dangerous thing, Willink testified, later adding that in a separate incident, the school forfeited a soccer game for a couple of reasons, one of which was that students came to the coach; students came to me; and students came to the athletic director and said that there were goings on--things that shouldn't have been happening before soccer practice. Kyle's name was involved with that. The school definitely did not try to name names or do anything in particular. We've tried to work with the team, but as a result, the game was forfeited.
Willink testified that Packer was taken off the soccer team, due to his arrest, which contributed to disrupting the educational environment. Kelly, on the board's behalf, argued that the hearing record established educational disruption.
But Pickett didn't buy it.
The transcript, he wrote in his Jan. 9 decision, reveals little if anything but hearsay, innuendo and suspicion. Furthermore, there was no testimony about educational disruption except that some teachers talked about the arrest. Even were the statute to pass constitutional muster, there is nothing in this record to support the board's action, he concluded.
Pickett quoted a dictionary definition of disrupt as to throw into disorder or turmoil; to interrupt to the extent of stopping, preventing normal continuances of or destroying. And, the judge wrote, it is not a reasonable interpretation of the facts in Packer's case to conclude that he had notice that possession of marijuana in the trunk of his car would result in the disruption of a school's educational process.
The statutory criteria for suspension for out-of-school offenses is the same as the language for expulsion: conduct seriously disruptive of the educational process, Pickett notes. Neither statute provides standards or guidance for when suspension or expulsion is appropriate. There being no standards in General Statute 10-233d(a), the court finds it to be unconstitutional and therefore null and void.
The school people like it as vague as possible, comments Levy, Conti's partner and co-counsel on the case. It gives them more leeway.
Last Wednesday Levy and Conti got an additional dividend from Pickett, who ruled on a motion to clarify that Packer, despite the school's attempt to do so, cannot be excluded from sports or other extracurricular activities, ruling that they are an integral part of the school's education program.
The severity of modern-day expulsions has created a new niche practice for several Connecticut lawyers. Winona Zimberlin, a Hartford solo, is one of them.
Zimberlin says none of her clients fits the drug gang profile. Their average age is 13, she says. These aren't kids bringing machine guns into school to shoot up the English class.
In some school districts, she says, students who bring an ordinary pen knife to school can face an automatic 180-school day expulsion, which means 365 calendar days. It is completely different from one school district to the next, so that something that can get you 180 days in one district may only be a day in another district. It's grossly unfair, she says.
Today she would be hard put to predict whether a BB gun in school is likely to trigger a 30-day, 60-day or a 180-day expulsion, Zimberlin says.
At the Legislative Program Review and Investigations Committee, principal analyst Renee Muir began studying Connecticut's expulsion phenomenon after she heard several criminal-defense lawyers complaining about the harsh effects of expulsions. A judge might agree to nolle the charges on the condition that the student studies hard and makes good grades, notes Muir in an interview. But the buckle down promise isn't an option if the student has already been expelled from school.
Muir is the author of Student Suspensions and Expulsions, an exhaustive Aug. 20, 1997, staff briefing for the Program Review and Investigations Committee. The 60-page report lays the groundwork for last week's raised bill to sharpen the statutory standards for expulsions. The new legislation will also recommend a wider range of alternate education options for expelled students, Muir says.
In her research, Muir found many of the expelled students acted as if their punishment was an extended holiday. If the expelled student is under 16, the school system has to offer two hours of teaching per school day. It's purely optional. If the students and parents don't accept the education, there are no legal consequences for anyone. Second offenders and those over 16 don't currently have any right to get out-of-school education, she notes.
Alternative education is undefined in the statutes, Muir says. A state education department ruling simply borrows the standards for homebound education--the 10 hours per week of course tutoring prescribed for bedridden students.
The proposed bill, which will have a public hearing in about three weeks, would also double the number of hours of alternative education an expelled student receives. In addition to the two hours of course work, Muir says, it would include two hours of work-study, community service or other constructive structured activity.
The Program Review and Investigations Committee, in an effort to find out how many students are being suspended and expelled, mailed questionnaires to 131 districts with middle schools or high schools, and after receiving 97 replies, found that 5 percent of middle school studentshad been suspended as had 8.4 percent of all high school students in the 1996-97 school year. Total suspension incidents were 8,512 for middle schools and 16,123 for high schools.
Expulsions were more rare, the report states, with 141 middle school expulsions and 294 high school expulsions--less than 1 percent.
Joseph Grabarz, director of the Connecticut Civil Liberties Union, says that lately he's hearing from more parents with students facing expulsion. Schools are dramatically different today, but not because the kids are worse, Grabarz contends. When Connecticut schools are policed by uniformed officers, students are searched with metal detectors and subjected to locker searches, the schools begin to resemble prisons more than an educational institution, he says, adding, just about the only thing the kids are lacking is prison I.D. numbers.
Both Grabarz and Zimberlin have met with parents reeling from the shock of an expulsion. Sometimes the parent doesn't really know whether the school system is serious, and they expect to come to some informal meeting, Zimberlin says. Instead it's a full-fledged proceeding with lawyers, cross-examination and dire consequences. It comes as a shock, she adds.
Even parents who realize just how serious things are have trouble responding adequately. The hearings are normally scheduled less than 10 days after the incident, which allows little time to prepare a defense.
Often, Zimberlin adds, the parent first learns about the suspension when he or she returns from work. The child by then has already been investigated, judged guilty and sent home. Parents generally don't realize they can get legal representation for the hearing, says Zimberlin.
An extremely valuable interest is at stake in the child's education, notes the CCLU's Grabarz, who doesn't see this basic fact reflected in the level of due process students and parents receive.
If you have a 16-year-old kid, you don't want to see him or her wind up not finishing high school. And if you prefer to see them go into a profession that requires further training, you've now got costs of tens of thousands of dollars for a private high school education--$20,000 of your income is being disposed of without due process. We provide more due process for a $50 parking fine, says Grabarz.
The current legislative efforts to find out what actually happens to expelled students, and to keep them from automatically becoming school dropouts is in keeping with Grabarz's views: Maybe the attitude we ought to have for all of them--[whether general education students or special ed]--is that we're going to be willing to work with the kid until we've exhausted the possibilities.
It would be a more humane policy to say that we're not going to classify some human being as garbage until we've tried every alternative. And unfortunately schools are too quick to make that classification.
Shipman & Goodwin partner Thomas B. Mooncy, a leading school law authority, represents a number of Connecticut school boards. In that role, he says he's seen as many as five expulsions in two nights, and they're not clear-cut cases of gunslingers and drug dealers.
If one kid brings a BB gun to school and passes it around to five friends, all six of them have been in possession of a weapon on school grounds, subject to mandatory expulsion for one calendar year, no appeal, says Mooney.
The mandatory federal and state laws leave little room for discretion on the part of school authorities, says Mooney. If a kid has a small switchblade, the expulsion's mandatory; if he has a huge Crocodile Dundee knife, it's not mandatory, Mooney says, noting that the policies can differ from district to district.
Mooney's view of Pickett's decision in Packer v. Thomaston Board of Education is mixed. In his view, Pickett was right that the out-of-school arrest wasn't disruptive of the educational process. But that still doesn't make the statute unconstitutional, says Mooney. Since disruptive conduct is linked with the requirement of an established school policy, that gets rid of the vagueness issue, and saves the statute, Mooney says. The 1985 U.S. Supreme Court case of New Jersey v. T.L.O. upheld similar language, which delegated substantial discretion to school authorities.
Connecticut places the right to a free public education in its constitution, and a high school degree is a prerequisite for decent employment, so expulsions shouldn't be handed out lightly. On the other hand, the great majority of serious, law-abiding students deserve to be safe and secure in school. It's like the definition of a Greek tragedy--both sides are in the right, says Mooney.
If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.
Source: Thomas Scheffey, School Expulsion Policies Get Tough, But Students Pay the Ultimate Price, 24 CONN LAW TRIB at 3 (Jan. 26, 1988)
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