Mr. Principal overheard two students laughing about MySpace.com, but it was only after a trusted student confided in him that he knew why. Apparently, Ginny Geek had learned more in Computing 101 than her grade would indicate. Ginny figured out how to circumvent the filters protecting Nutmeg students, and when her teacher wasn’t paying attention, she created a phony account on MySpace.com for Mr. Principal, including his "profile" in which he described his abiding love for beer, peanuts and soap operas. By the time Mr. Principal called Ginny down to the office, the entire student body was laughing about Mr. Principal.
Ginny admitted to her misconduct, and Mr. Principal demanded that she be expelled. Mrs. Superintendent shared Mr. Principal’s concerns, but she was not sure whether Ginny’s first (and quite clever) offense should result in a permanent record of expulsion. Mr. Principal, however, had no sympathy for Ginny, and continued to argue for her expulsion. He even called a couple of Board members to urge expulsion, who in turn promptly called Mrs. Superintendent to get the full story. Given all the attention, Mrs. Superintendent decided to recommend expulsion.
Apparently, Mrs. Superintendent misjudged the impact of Mr. Principal’s calls on the Board members. She had expected the Board members to be ready to hang Ginny high. Instead, it was soon apparent that they did not have the stomach for expelling Ginny under these circumstances. Board member Penny Pincher expressed concern for poor Ginny, and Bob Bombast asked whether an expulsion would hurt her college plans. Ultimately, the Board members adjourned the meeting without decision.
Mrs. Superintendent found out why early the next morning when veteran Board member Bob Bombast called. He told her that the Board members felt that Ginny was a good kid who had done one bad thing. They were really struggling with this case, and they wanted to know whether they had any options other than expulsion.
Mrs. Superintendent acknowledged that Ginny’s case posed a challenge. On the one hand, she had never been in trouble before, and it is hard to know exactly what impact an expulsion would have on her college prospects. On the other hand, Ginny had no one to blame but herself for her problems. Moreover, Mr. Principal and all the administrators in the district were waiting to see what the Board would do to a student caught humiliating an administrator. Mrs. Superintendent told Bob that, on balance, the Board really had to bite the bullet and expel Ginny, at least for a while.
Reluctantly, Bob agreed, and after a quick telephone call to the other Board members, he called back to announce that Ginny was expelled for the first semester. Did the Board have any other option?
* * *
Actually, yes. Public Act 07-122, effective July 1, 2007, provides new options for suspensions or expulsions, at least as to first-time offenders.
Specifically, if a student has never previously been suspended or expelled, board of education members hearing a recommendation for expulsion are now expressly authorized to either waive or shorten a period of expulsion if the student "successfully completes a board specified program and meets any other conditions required by the board." Significantly, however, the statute further specifies that the student and/or parents may not be required to pay for participation in the program.
This change codifies a practice of many boards of education to permit a student in appropriate circumstances to return from expulsion early if the student complies with conditions set by the board. The only wrinkle here is that the statute now prohibits school boards from requiring that the student or parent pay to participate in a board-specified program. It has been common to set conditions for early return that imposed costs on parents (e.g., drug testing, family counseling), and it is not completely clear if such requirements would be considered "conditions" for return, which are permitted, or "costs" to participate in the "program" established by the board, which are not.
Another change Public Act 07-122 makes in the expulsion statute may be more significant. For many years now, school districts have been required to include in a student’s cumulative file notice of any expulsion and the conduct for which the student was suspended or expelled. Further, such notification must be maintained in the cumulative file until high school graduation, at which time it must be expunged (except for expulsions based on possession of a firearm or deadly weapon, which may not be).
Public Act 07-122 changes the law by permitting boards of education to expunge records of expulsion before high school graduation when a student is expelled for the first time and the Board either waives or shortens the expulsion period. Specifically, the expulsion statute now provides that the record of expulsion may be expunged before high school graduation "if the board so chooses, at the time the pupil completes the board specified program and meets any other conditions required by the board."
The General Assembly has also amended the suspension statute. Public Act 07-122 includes similar changes regarding waiving or shortening a first suspension based on fulfilling conditions and/or completing a program established by the administration. Similarly, the statute now permits expunging the related notification which otherwise would be maintained until high school graduation if the student fulfills conditions or completes a program that the administration may establish.
In addition, effective July of next year, Public Act 07-66 now establishes a presumption that all suspensions of students (an administrative responsibility) be in-school suspensions, unless the administrator determines through the informal hearing process required before a suspension that "the pupil being suspended poses such a danger to persons or property or such a disruption of the educational process that the pupil shall be excluded from school during the period of suspension."
Finally, the Board and Mrs. Superintendent should study up on due process obligations. Given that education is a property right, any deprivation must comply with due process requirements. An impartial decision-maker is a basic element of due process. Here, Mr. Principal should not have called the Board members outside the hearing to lobby for expulsion. Similarly, while well-intentioned, the conversation between Mrs. Superintendent and Bob Bombast was inappropriate. As a matter of due process, there should not be ex parte (or unilateral) communication between a party and the decision maker on the substance of the matter to be decided.
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.