The Intermediate Middle School in Nutmeg was average as regards student use of drugs. It was not a frequent problem, but any use of drugs by students was of course a serious concern. At the beginning of the school year, Ms. Principal directed all teachers to review the student handbook with their students and to inform them that any involvement with drugs would result in a recommendation for expulsion.
Apparently, John Blow, a 16 year old eighth-grader, did not get the message. Ms. Principal heard about drug deals going down in the boys’ bathroom on the second floor, and on a hunch she stormed in after a quick knock to find Joe handing over two suspicious hand-rolled cigarettes to a student who was handing him a crisp $20 bill. Ms. Principal seized the contraband and immediately suspended both boys.
Ms. Principal then called Mr. Superintendent to describe these events and to recommend immediate expulsion of both boys. As to the buyer, Mr. Superintendent reminded her that board policy calls for suspension for a first drug offense. However, he was game to expel Joe, because sale or distribution of drugs is a mandatory expulsion under Connecticut law.
Mr. Superintendent called Joe’s parent and explained the facts and that he was prepared to expel Joe. Mr. Blow, Joe’s dad, was tired of dealing with Joe’s problems, and he suggested that they would just agree to the expulsion as long as Joe received an alternative educational opportunity. That sounded fine with Mr. Superintendent, and he asked Mr. Blow to put it in writing to document their agreement.
Mr. Superintendent received Mr. Blow’s letter the next day. He was surprised, therefore, then to get a call from Bill Alot, local legal scourge. Bill told Mr. Superintendent that he was now representing Joe. Bill also claimed that Mr. Blow’s letter to Mr. Superintendent stipulating to Joe’s expulsion was "void ab initio" because the Board of Education has exclusive jurisdiction over expulsion of students.
The legal budget was already in deficit, and rather than argue with Bill Alot over the issue Mr. Superintendent decided to set the matter down for a Board hearing. Since Joe was caught red-handed, a hearing should be no big deal, so thought Mr. Superintendent. However, Bill Alot came out swinging at the hearing. Bill attacked the recommendation of the Superintendent, explaining that Joe has a lively sense of humor and that the "joints" he supposedly was selling were in fact oregano. Last time he checked, Bill said sarcastically, oregano was not a controlled substance and its sale was not a violation of school rules.
At this point, the Board members were totally confused. They asked Mr. Superintendent about the "joints," but all he could say is that they were in police custody and that he did not know whether they had ever been field-tested. With that Bill demanded that the Board reject the recommendation for expulsion and let poor Joe return to the school he loved so very much.
How should the Board members vote?
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Board members may need more information, but the premise of Bill’s argument is seriously flawed. First, however, we should back up to review the school rules.
Whenever school officials adopt rules, their action implicates constitutional principles. As a matter of due process, school officials are bound by the rules they adopt because the affected people, here students, may rely on those rules. Recently, one district tried to expel a student for drug possession, even though its rules provided for suspension and counseling for a first offense. On appeal, the court ruled that the school district violated the student’s rights by ignoring its own rule. Given this concern, school officials should be sure that the rules they enact are either appropriate in all cases or have some flexibility built in. One can (but need not) decide that suspension is generally an appropriate penalty for a first offense of drug possession. However, the answer may be different if 100 vials of crack cocaine are involved.
This case also illustrates the potential for confusion over mandatory expulsion provisions under Connecticut law. Expulsion is permitted when a student’s conduct violates school rules, endangers persons or property, or is seriously disruptive of the educational process. Expulsion is mandatory when a student (1) on school grounds (including school-sponsored activities) is in possession of a deadly weapon, martial arts weapon or dangerous instrument, (2) off school grounds possesses such an object and uses it in the commission of a crime, or (3) on or off school grounds offers controlled drugs for sale or distribution. The mandatory expulsion rules can be very important when the conduct occurs off-campus, because school boards have the authority to expel for off-campus conduct only if the conduct severely impedes the day-to-day operation of the school or if the expulsion is mandatory. For on-campus behavior, however, the normal rules apply.
Here, Joe’s conduct was on school grounds, and he can be expelled. To be sure, the Administration should be sure of its facts if it seeks to expel for sale or distribution of drugs, and it should have asked the police to field test the "joints" seized. However, the Administration could move to expel Joe for selling a substance he purported to be drugs, because such conduct is seriously disruptive of the educational process and would certainly endanger persons. (What is the effect of smoking oregano? Is Joe at risk when the other students find out that they have been duped?) Here, once Joe is charged with the right offense, the Board could easily find that Joe’s conduct warrants expulsion.
The stipulation sent in by Mr. Blow raises a question that has not yet been answered by the courts in Connecticut. The expulsion statute, Section 10-233d, requires that an expulsion hearing be conducted in accordance with selected provisions of the Uniform Administrative Procedures Act, including Section 4-177(c). That statute provides that "Unless precluded by law, a contested case may be resolved by stipulation, agreed settlement, or consent order or by the default of a party." The expulsion statute also specifies, however, that authority to expel is vested in the board of education or a hearing officer. It is thus not clear whether parents and the superintendent may simply stipulate to an expulsion, or whether the board must act. Given this uncertainty, it is advisable that the superintendent bring any agreement with parents for expulsion as a joint recommendation to the board for its approval.
Thomas Mooney is a partner in the School Law practice.