Joe Blow showed up at Nutmeg High School earlier this year to enroll in school. Sally Secretary thought it odd that Joe would appear alone without his parents, but Joe explained that he would be living with his friend, Harry Host. Sally had a million things to do, and gave him the paperwork as she answered the telephone. Within two minutes, Joe had filled out the enrollment form, and with the help of an assistant principal, he quickly enrolled and went off to his Shop class.
Two weeks later, Mr. Principal was disturbed to read in the newspaper that Joe had been arrested in a neighboring town for possession with intent to sell marijuana. Mr. Principal did not want to be bothered with an expulsion hearing, so he asked Sam Sleuth, the attendance officer to investigate. A week later, Sam presented Mr. Principal with the results of his surveillance – Joe had gone to his parents’ home in a neighboring town four times and had gone to the Host family’s house only once that week. Mr. Principal sent Joe a letter disenrolling him, but was surprised then to receive a request for a school accommodations hearing before the Board of Education.
The Board held the hearing last evening. Three Board members acted as a committee, Bob Bombast, Penny Pincher and Red Cent. Mr. Principal began the proceedings by telling the Board that Joe was living in another town with his parents and was thus not eligible for free school privileges in Nutmeg. When Penny Pincher asked him why, Mr. Principal described what Sam had told him about his surveillance. At that point, Penny said, “I thought as much. I have heard that Joe was sneaking into our schools. Thank you, Mr. Principal, for your diligence.”
Mr. Host objected, claiming that Mr. Principal’s testimony was all hearsay and that Penny was biased. He told the Board that he and his wife welcomed Joe into their home because of his love for the Nutmeg Public Schools. Mr. Host explained that Joe was misunderstood, and that he needed the TLC that he and his wife could provide. He implored the Board members to permit Joe to continue to attend the Nutmeg Public Schools, and he warned them that he was prepared to take an appeal if necessary.
Mr. Principal then asked to be recognized. “I had hoped not to have to use this. But the Board should know that Joe was recently arrested for selling drugs. I am sure that you share my concern that we don’t want people like Joe in our schools.”
Bob Bombast turned to Joe and asked if it were true. Joe told him that, on advice of counsel, he would have to plead the Fifth. “That’s enough for me,” responded Bob. At that point, the Board cleared the room except for Mr. Superintendent, and they discussed what to do. Red Cent asked Mr. Superintendent if it were really so important that Joe be excluded. Since the legal budget was already over-expended, he pondered, wasn’t it better to just let Joe stay in school? However, as Mr. Superintendent was responding, Bob interrupted to say that he did not want a drug dealer in the Nutmeg Schools. He moved the question, and he and Penny voted that Joe is not entitled to attend the Nutmeg Public Schools, with Red abstaining.
Is Joe done in Nutmeg?
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The facts presented strongly suggest that Joe is not entitled to free school privileges in Nutmeg. However, the procedures followed in the Board hearing were so deficient that Joe would have a good chance on appeal.
The main problem here is that the Board violated Joe’s due process rights in various ways. A fundamental element of due process is an impartial decision-maker. Penny said that she’d heard that Joe was sneaking into the Nutmeg Schools. However, board members must decide such matters on the basis of the information presented at the hearing. To be sure, board members may hear about students or situations that they later must address, and board members are not precluded from participating in a hearing (e.g., expulsion, residency, transportation, tenure) just because they heard something. The question is whether they can put aside what they may have previously heard and decide the matter impartially on the basis of the information provided at the hearing. Penny’s statements here cast serious doubt on her ability to be impartial. In any event, it was clearly improper that Mr. Superintendent was present (and providing input) during the deliberations, because an impartial decision-maker should not communicate privately with one party to the proceeding without the other.
Considering the potential criminal charges was another due process problem, because the decision-maker should consider only relevant information. “Possession with intent to sell” is not the same thing as offering a controlled substance for sale or distribution (which triggers the mandatory expulsion provisions of the statute). However, even if there were evidence that Joe was actually engaged in the sale of marijuana, those allegations were not relevant to the question of whether Joe resides in Nutmeg. Consideration of unrelated issues, such as misconduct or special education needs, would not be appropriate in a school accommodations hearing over residence.
The last due process concern is hearsay, which is the presentation of what someone else said for the truth of the matter asserted. While boards of education are not bound by the formal rules of evidence in such administrative hearings, the courts have ruled that hearsay testimony can be prejudicial because the other party cannot conduct a meaningful cross-examination over what someone else said. Sam Sleuth should have been at the hearing to tell the Board directly what he saw.
These procedural issues cloud what might otherwise be a clear case of ineligibility. In a residence case, the burden falls on the party claiming eligibility. In addition, a student living apart from his/her parents is eligible to attend school in a district only if such residence with another family is (1) permanent, (2) provided without pay, and (3) not for the sole purpose of obtaining school accommodations. Here, Mr. Host presented no information concerning the permanency of the arrangement, and he expressly referred to Joe’s love of the Nutmeg Public Schools as a reason for Joe’s living with the Host family. On this record, the Board could well have found Joe not to be eligible for free school privileges in Nutmeg.
Finally, this problem may have been avoided at the outset if Sally had been more careful when Joe sought to enroll. However, once he was enrolled, Joe had the right to stay at Nutmeg High School at least temporarily, because the statute provides that an enrolled student may continue to attend school during all hearings and appeals concerning residence.
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.