Request By:
Mr. Bruce R. Clark
Director of Pupil Personnel
Kenton County Schools
5533 Madison Pike
Independence, Kentucky 41051
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Director of Pupil Personnel for the Kenton County Schools you have succinctly asked the Office of the Attorney General to advise you in a formal opinion what constitutes a due process hearing for suspension or expulsion of a public common school student in the Commonwealth.
The answer to part of your question is found in the language of KRS 158.150, as amended by the 1978 Kentucky Acts. KRS 158.150 is our only school law governed method of disciplining a school pupil.
The Kentucky Court of Appeals, in Dorsey v. Bale, Ky., 521 S.W.2d 76, 78 (1975), stated in this regard that:
"However, the General Assembly has by statute enunciated legislative intent regarding discipline of students in public schools for serious breaches of school regulations. "
KRS 158.150, as amended, reads as follows:
"(1) All pupils admitted to the common schools shall comply with the lawful regulations for the government of the schools. Wilful disobedience or defiance of the authority of the teachers or administrators, use of profanity or vulgarity, assault or battery or abuse of other students or school personnel, the threat or force of violence, the use or possession of alcohol or drugs, stealing or destruction or defacing of school property or personal property, the carrying or use of weapons or dangerous instruments, or other incorrigible bad conduct on school property as well as off school property at school sponsored activities constitutes cause for suspension or expulsion from school.
(2) A pupil shall not be suspended from the common schools until after at least the following due process procedures have been provided:
(a) The pupil has been given oral or written notice of the charge or charges against him which constitute cause for suspension;
(b) The pupil has been given an explanation of the evidence of the charge or charges if the pupil denies them; and
(c) The pupil has been given an opportunity to present his own version of the facts relating to the charge or charges.
These due process procedures shall precede any suspension from the common schools unless immediate suspension is essential to protect persons or property or to avoid disruption of the ongoing academic process. In such cases, the due process procedures outlined above shall follow the suspension as soon as practicable, but no later than three (3) school days after the suspension.
(3) The superintendent, principal or head teacher of any school may suspend a pupil but shall report such action in writing immediately to the superintendent and to the parent, guardian or other person having legal custody or control of the pupil. The board of education of any school district may expel any pupil for misconduct as defined in subsection (1), but such action shall not be taken until the parent, guardian or other person having legal custody or control of the pupil has had an opportunity to have a hearing before the board. The decision of the board shall be final."
The suspension of a student from school, a disciplinary method available only to a "superintendent, principal, or head teacher, " generally connotes a temporary banishment for a short period of time. See OAG 74-165, copy attached.
Goss v. Lopez, 419 U.S. 565 (1975), the celebrated United States Supreme Court decision, dealt with suspension from school for ten days or less. There is no bright line drawn around a ten-day suspension any more than around three days. Contrary to seemingly popular belief in Kentucky, there is no time duration spelled out in our Kentucky school law or elsewhere for suspension. Certainly there is no Kentucy law prohibiting longer than three-day suspensions. There has been favorable federal court consideration of as much as a thirty-day suspension. See
Alex v. Allen, 409 F. Supp. 379 (W. Dist. Pa. 1976). However, it does seem to this ofice that a suspension longer than a twenty-day school month should be the exception rather than the rule. If a more permanent than twenty days separation from school of the student is felt necessary, a recommendation should be made to the board of education for consideration of expulsion, about which we will discuss more below. A child may be suspended pending consideration by the board for expulsion.
As for the due process hearing required for suspension, this is now set forth in KRS 158.150, supra. The three-prong procedure set forth in the statute to be followed was "lifted" from the United States Supreme court's
Goss v. Lopez, supra, decision. Unlike in Goss, however, this procedure of (1) oral or written notice of the charge or charges, (2) an explanation of the charge or charges, and (3) an opportunity to present his own version of the facts, is to be followed for all suspensions irrespective of duration. The following of this procedure fulfills the due process hearing requirement for suspension of a student from a public common school in Kentucky.
To be recognized by reading KRS 158.150, only a local board of education, by an official act, can expell a student. Note also that the same statutory causes apply to suspension and expulsion alike. KRS 158.150(1), (3). From the statute a student cannot be expelled until after there has been a hearing before the board of education; however, KRS 158.150 does not specify the detail or scope of the required expulsion hearing. As Mr. Justice White related in Goss, supra, once it is determined there exists constitutional rights, and due process is due, it must be determined how much due process is due. 419 U.S. at 577. It seems to this office that the procedural due process which must be afforded in an expulsion situation should be greater than that in a suspension situation. The extent and degree of due process to be given in a hearing will increase as the possible penalty affecting constitutionally protected rights at stake becomes greater.
Based upon several often referred to cases in this area of school law as well as other sources of information, we are of the opinion the minimum requirements to be followed for a due process hearing prior to expulsion are: (1) notice, (2) legal counsel, (3) impartial hearing, and (4) written notification of the decision. 1 A criminal type due process hearing is not required nor is a judicial or quasi-judicial trial required.
We wish to comment on and detail more the four broad requirements stated above. The framework for these requirements was garnered from the oft-quoted case of
Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), a truly landmark procedural due process education case.
NOTICE
Notice really consists of two parts. The first part of the notice is more substantive due process than procedural due process. The student should be made aware of the standard of expected behavior in a school system and that a violation of specific regulations of the school or for the "causes" set forth in KRS 158.150, the student may be considered for expulsion. A school board, by KRS 160.340(2)(b) is required to establish policies regarding "discipline of conduct of pupils. " These policies should be promulgated to the students. One way this may be done is through the permissive statute outlining the adoption and promulgation of a code of student rights and responsibilities. KRS 160.295.
The second part of the notice requirement relates more specifically to the due process hearing procedures. The student and the student's parent(s), guardian or legal custodian should receive adequate written notice from the board of education or its designee containing a statement of the specific charges and grounds which, if proven, would justify expulsion under KRS 158.150 and the regulations of the local board of education. This notice should further provide the evidence and the witnesses the school will produce at the hearing. See
Boykins v. Fairfield Board of Education, 492 F.2d 697 (5th Cir. 1974) and compare
Goss v. Lopez, supra. The information contained in this written notice should convey to the parent and student what is needed to be known to allow for the preparation of a defense. The date, place and time for the hearing should be set forth. The hearing should probably be scheduled to be held no earlier than five days from the day the notice is received or not later than the next regular school board meeting. A board could have a called special meeting for the purpose of an expulsion hearing.
LEGAL COUNSEL
The school board must allow the student to be represented by legal counsel, but the board does not have to provide an attorney if the student and his or her parents choose not to have one, or if an attorney cannot be afforded. See Boykins, supra. We see no need for the board to have to advise the student or parent that they may retain legal counsel to assist them in preparation of a defense at the expulsion hearing. One additional note regarding counsel is that we believe the board of education can limit representation to attorneys at law. See
Graham v. Knutzen, 362 F.Supp. 881 (D.Neb. 1973).
IMPARTIAL HEARING
Rudiments of an adversary hearing should probably prevail. The student is entitled to an orderly hearing. The hearing may be closed or open, as the student so desires. KRS 61.810(6). The student must be given full opportunity to give his or her side of the story before the board and to produce either oral testimony or written affidavits of witnesses in his or her behalf. Although there is general disagreement on this point, we believe the opportunity should be given to cross-examine witnesses. We do not believe the student has an unqualified right of confrontation. This would be especially so as concerns student witnesses.
The student is entitled to have consideration of the evidence by an impartial tribunal. The board member should have shunned prior involvement in the situation. However, exposure to evidence prior to the hearing is insufficient in itself to impugn the fairness of the board member at the adversary hearing. See
Withrow v. Larkin, 421 U.S. 35 (1975) and compare
Bd. of Ed. of Pulaski County v. Burkett, 525 S.W.2d 747 (1975) and
Burkett v. Bd. of Educ. of Pulaski Cty., Ky. App. 558 S.W.2d 626 (1977). Some familiarity with the facts of the situation does not disqualify a decision maker. See
Gonzales v. McEuen, 435 F.Supp. 460 (C.D. Calif. 1977).
Additionally, we do not believe there has to be proof of the charges beyond a reasonable doubt nor that there be a unanimous decision of the board. See
Linwood v. Board of Education, City of Peoria, Sch. Dist. No. 150, 463 F.2d 763 (7th Cir. 1972).
Somewhat as an aside, we feel mention needs to be made of the role likely to be played by the local school boards attorney regarding the expulsion process. It is quite likely that the school board attorney will prosecute the charges against a pupil and also be expected to serve as the legal advisor to the board. This problem is acute in that it has to be said that for the most part a local board of education enjoys no legal expertise and must rely upon its retained attorney. We suggest that a school board attorney, if he is to serve the role as the prosecutor, should limit his advice to the board to explaining the legal obligations the board has in an expulsion hearing before the hearing commences. The attorney should at no time advise the board during an expulsion hearing in which he is participating. Note and compare
Gonzales v. McEuen, supra.
NOTIFICATION OF THE DECISION
Detailing the board's decision based solely upon the evidence presented at the expulsion hearing in a formal writing is not necessary for due process. By "formal" writing we mean a "Finding of Fact and Conclusions of Law" type of writing. Nevertheless, we do believe the board should report in writing the decision of the board to the parent(s), guardian, or legal custodian. If the hearing has involved multiple charges, we believe the report should include which charges, if less than all, the board found to be supported by the evidence, and upon which the board made the decision to expel. We remind boards of education that it has been the position of this office that a student may be expelled only until the beginning of the next school year. OAG 74-165, supra.
Thus, it is the opinion of this office that the above rudimentary elements of fair play will cause the requirements of due process in regard to expulsion to have been fulfilled.
Footnotes
Footnotes
1 See a "Legal Guide for Development and Administration of Pupil Personnel Policy" by William P. Giessellman, Jr., Southern Region School Boards Research and Training Center, Inc., 1976.