Yesterday, in the Schuylkill County Court of Common Pleas, parents of a Shenandoah Valley student filed suit against the school district to overturn a 10-day suspension for allegedly violating the district’s drug policy. The parents asserted in the six-page petition that:
(1) Shenandoah Valley lacked substantial evidence that the student violated the school drug policy.
(2) Shenandoah Valley did not hold an official hearing within five days of their notice to the parents that their son was facing a suspension.
(3) The hearing itself was unlawful because the student was not afforded the assistance of counsel, was not given any statements or affidavits by opposing witnesses, and the parents only received notice of the hearing date two days before it was held.
(4) Hearsay evidence was presented at the hearing.
(5) Statements from the student were taken without a parent, guardian, or attorney present.
The Clarke Report finds this suit to be misguided for two separate reasons. First, the violations asserted in the parents’ petition do not comport with established law regarding the due process rights of students in public school. Frankly, I find this suit to be frivolous at best and the arguments shoddily presented by the attorney. As a law student who is less than a month away from graduation, I am in no way a expert in this area of law. However, even my cursory understanding of administrative law and due process litigation allows me to see that this suit is not likely to withstand summary judgement and in all probability is an attempt to shake down a school district to bend to the will of the parents. Here is why:
Students in public school are not afforded the full spectrum of rights under the Constitution that adults enjoy. In Veronia School District v. Acton, the Supreme Court held that “unemancipated minors lack some of the most fundamental rights of self-determination, including even the right to liberty in its most narrow sense. They are subject, even as to their physical freedom to the control of their parents or guardians”. Though students do not shed their constitutional rights at the schoolhouse gates, the Court has ruled that when children are in school, the school administrators are acting in loco parentis and must be provided deference in matters relating to to the custodial and tutelary nature of their authority, especially discipline.
That said, students still enjoy some due process protection. For example, in Goss v. Lopez, the Court held that a school district is required to provide effective notice to the student of the charges against him and perform a informal hearing to allow the student to give his version of the events before suspending him for 10 days or less. Pennsylvania followed this decision in drafting their requirements for suspension and expulsion actions. According to 22 PaCode 12.8, when a student is SUSPENDED from school for 10 days or less, all that is required is an “informal hearing”. This is important because this is where the parents’ lawyer gets stupid. In the petition, the lawyer terms the school’s action an EXPULSION, so as to kick in the 12.8 requirements for a “formal hearing”, which are more stringent. The lawyer is dead wrong. If he actually read the Pennsylvania Code, Goss and its progeny, or Tyson v. School District of Philadelphia (the controlling PA case) it would have been clear that his client was merely suspended from school and did not need a formal hearing.
Since it is now established that the provisions of 12.8(c) control here, let’s determine whether the school district acted within the law and examine the lawyers’ arguments in his petition:
(1) Notification of the reasons for the suspension shall be given to the parents and the student: The petition concedes that the parents were notified by letter from the district on Feb. 21st.
(2) Sufficient notice of the time and place for the hearing should be given: The petition contends that two days was not enough notice to satisfy this requirement. PA Courts have ruled that 24 hours notice is NOT sufficient notice (Minnicks v. McKeesport), but that 2 days or more is sufficient.
(3) The student has the right to question any witnesses present at the hearing: The petition asserts that the student was not afforded his right to review the statements or affidavits of witnesses against him. However, 12.8(c) does not require this. The lawyer has mixed up this provision with 12.8(b)(5), which is formal hearing requirement.
(4) The student has the right to speak and produce witnesses on his own behalf: The petition did not argue a violation here.
(5) The school entity shall offer to hold the informal hearing within the first 5 days of the suspension: Here, the petition asserts that in their letter to the parents, the school district did not offer to hold a hearing within 5 days. That is an intellectually dishonest argument. The requirement is WITHIN THE FIRST 5 DAYS OF THE SUSPENSION. Assuming the student was suspended on the 21st (a Thursday) when the parents got the letter, the hearing was then held on the 27th (the next Wednesday), which was the fifth day of the student’s suspension. The only way that the lawyer can get there is if he reads the provision to say that the hearing must be held 5 days AFTER the suspension starts, which is a pretty weak argument.
The lawyer also argues a few other points about hearsay being presented and takes umbrage with the student being questioned by the principal without attorney representation.
As to the attorney not being present at questioning: as stated prior, school administrators enjoy in loco parentis authority, which means that when they talk to a student in the school setting, administrators are doing so as surrogate parents. Courts have contended in other matters, such as when a Principal physically searches a student brought to the his office for suspicion of drugs, he is treated as a parent, not a law enforcement official. Furthermore, the right for counsel to be present does not kick in until a formal hearing under 12.8(b)(4) is held.
As to the hearsay argument: According to Pennsylvania Administrative Law and Procedure (2 PACS 505), when state agencies like PennDOT hold informal and formal hearings, they are NOT bound by the technical rules of evidence (like the exclusion of hearsay). So long as the evidence has a reasonable amount of probative value, its OK. Surely, if PennDOT can use hearsay to suspend your driver’s license in a formal adjudicatory hearing, a school district may use hearsay to suspend as student from school at an informal hearing.
Finally, I find the parents’ response to this matter disturbing. Their child was reportedly discovered to be using currently or have used in the past, illegal substances. Instead of talking with their child and seeking treatment for him, these parents have chosen to challenge the school in an attempt to eliminate the consequences of his own actions, thereby enabling his negative behavior. As a youth counselor and advocate with nearly a decade worth of experience dealing with troubled youth, I have found that parents who react to situations like these as the Shenandoah student’s parents have done here, choose to bury their heads in the sand in order to shield themselves from the thought that their parenting skills may not have been on par with what they believed them to be. In other words, if parents have to admit that their child is a drug user, than they may have to look themselves in the mirror and ask what they did wrong. Most parents can’t do that because the specter of failure is so frightening to the ego that the immediate emotional reaction is denial.
I hope that these parents get their act together, for their child’s sake. They need to take their heads out of the sand and address the problem before it gets any worse. If they don’t, they are skirting their duties as parents and should be haled into court themselves.