NO. COA09-1180
NORTH CAROLINA COURT OF APPEALS
Filed:
2 November 2010
IN RE VICTORIOUS RONE
by and through ARDEAL
and DIANNE ROSEBORO,
Petitioners
Forsyth County
No. 08 CVS 8704
v.
WINSTON-SALEM/FORSYTH
COUNTY BOARD OF
EDUCATION,
Respondent
Appeal by petitioners from order entered 21 July 2009 by Judge
Ronald E. Spivey in Forsyth County Superior Court.
Heard in the
Court of Appeals 11 February 2010.
The Roseboro Law Firm,
petitioners-appellants.
PLLC,
by
John
Roseboro,
for
Womble Carlyle Sandridge & Rice, PLLC, by Reid C. Adams, Jr.,
and Gemma L. Saluta, for respondent-appellee.
Katherine J. Brooks, staff attorney, and Allison B. Schafer,
legal counsel, for amicus curiae North Carolina School Boards
Association.
CALABRIA, Judge.
Victorious Rone (“Rone”), by and through his grandparents and
legal
guardians
Ardeal
Roseboro
(“Mr.
Roseboro”)
and
Dianne
Roseboro (“Mrs. Roseboro”) (collectively “petitioners”) appeal the
trial court’s order affirming the Winston-Salem/Forsyth County
School Board of Education’s (“WSFCS,” “the Board,” or “respondent”)
-2letter opinion of 9 October 2008 assigning Rone to an alternative
school for the 2008-09 school year.
We reverse and remand.
I. Background
During the 2007-08 school year, Rone was a ninth grade student
at R.J. Reynolds High School (“RHS”) in Winston-Salem, North
Carolina.
On 14 May 2008, Rone threatened other students at RHS
and drew a picture showing a female student being stabbed.
The
next day, RHS Assistant Principal Tony Mills (“Asst. Principal
Mills”), Guidance Counselor Mary Anne McClain (“Ms. McClain”), and
the school resource officer (“SRO”) met with petitioners, informed
them of Rone’s threats, and showed them the drawing.
Ms. McClain
also told petitioners that students and teachers were concerned
that Rone talked to an imaginary person named “Bob.”
Mr. Roseboro
replied that he felt that other students were “out to get” Rone and
that the meeting was “an attempt for [other] students to start
rumors
about”
Rone.
Ms.
McClain
attempted
to
help
recommending an evaluation by a WSFCS psychologist.
Rone
by
Petitioners
preferred to select someone of their own choosing rather than have
Rone participate in the WSFCS psychological evaluation.
Rone was
subsequently suspended from RHS for two days, 15 and 16 May 2008,
for communicating threats.
Rone returned to RHS on 19 May 2008.
Upon his return,
administrators found a drawing in Rone’s backpack that included the
statement, “Are you ready?
subsequently
took
statements
threatened by Rone’s behavior.
To die.”
from
Asst. Principal Mills
other
students
who
felt
Students voiced concerns that Rone
-3“talked about blood a lot” and “about hating . . . and killing
people.”
Students also stated
that Rone tried to cut or stab
himself during math class with a mathematical compass, and that
Rone told a student he wanted to “kill everybody in [the] school .
. . burn our corps[es] and then kill hi[m]self.”
On 20 May 2008, Asst. Principal Mills met with Mrs. Roseboro
and
told
temporary
her
that
placement
Rone’s
until
in-school
a
risk
suspension
assessment
(“ISS”)
was
was
a
performed.
However, if petitioners refused the risk assessment, Rone would
have to continue in either ISS or RHS’s Alternative Learning Center
(“ALC”) for the remainder of the school year.
Asst. Principal
Mills explained to Mrs. Roseboro that the risk assessment was
necessary to determine if Rone was a danger to himself or others.
Petitioners refused the risk assessment because Mr. Roseboro
denied
that
Rone
posed
a
threat
to
himself
or
others.
Consequently, Rone remained in ISS for the remainder of the 2007-08
school year.
While in ISS, Rone received his academic work in a
closely supervised setting to minimize the risk to himself or
others.
During the summer of 2008, respondent attempted to coordinate
a meeting between the administrators of RHS and petitioners to
discuss a resolution.
Petitioners’ counsel requested certain
documents prior to scheduling a meeting.
Respondent provided the
documents in early July 2008 and continued to request a meeting.
The meeting was finally held on 22 August 2008, the last day of
RHS’s summer break.
Rone, Mrs. Roseboro, and petitioners’ counsel
-4attended,
along
with
RHS
Principal
Art
Paschal
(“Principal
Paschal”), WSFCS Assistant Superintendent Paul Puryear (“Asst.
Superintendent Puryear”), and respondent’s counsel.
On 25 August 2008, the first day of the 2008-09 school year,
Asst.
Superintendent
Puryear
assigned
completion of a risk assessment.
Rone
to
the
ALC
until
Asst. Superintendent Puryear
reiterated that the purpose of the risk assessment was to determine
if Rone was a threat to himself or others at RHS.
The decision to
assign Rone to the ALC was based upon, inter alia, a Level 1
Screening Assessment (“the screening”),1 Level II Risk Assessment
Referrals (“the referrals”) completed by two of Rone’s teachers,
Rone’s two drawings, and ten statements and/or emails regarding
matters pertaining to Rone’s threats or potential psychological
condition.
According to the screening completed by Ms. McClain, Rone
displayed “some aggressive behavior” along with “violent fantasies,
drawings, or comments.”
In addition, Rone “expressed threats or
plans to harm self or others,” seemed “unable to express or feel
empathy, sympathy or remorse,” had “delusional ideas, feelings of
persecution, or command hallucinations[;] [a]cted on beliefs,” had
“evidence of plan (drawings, writings); able to identify others who
overheard talking about revenge or attack,” and that “multiple
concerns [have been] expressed by others; people fearful.”
1
This low-level screening is not the risk assessment performed
by the psychologist requested by the Board.
-5The referrals, completed by two of Rone’s teachers, found that
Rone was “socially withdrawn,” had “excessive feelings of isolation
and being alone,” displayed uncontrolled anger, talked or wrote
about violence or death, “seem[ed] depressed; cries easily, sleeps,
etc.,” engaged in “self-injurious behavior or threats (spoken or
written) of suicide” and “serious threats of violence toward
others,” and “communicated a threat directly to his target.”
One
teacher observed that Rone would “rock back and forth to soothe
himself,” “hit himself in the head repeatedly or bang[] his head on
a
desk/blackboard
compass in class.”
repeatedly,”
and
“scratch[]
himself
with
a
Another teacher noted that Rone threatened and
had “several ‘heated’ interactions” with other students in class
when they asked him to be quiet when he talked to “Bob.”
Superintendent
Puryear
offered
to
have
the
risk
Asst.
assessment
performed by a WSFCS psychologist at no cost to petitioners.
However, petitioners again refused to allow any WSFCS psychologist
to examine Rone and also refused to seek a private risk assessment
performed at their own expense.
On 28 August 2008, petitioners’ attorney requested a hearing
to appeal the ALC assignment.
In response, respondent scheduled a
hearing for 2 September 2008.
When petitioners requested an
October hearing, the hearing was scheduled and held on 7 October
2008 before a three-person hearing panel of the Board (“the Board
Panel”).
Asst. Superintendent Puryear, Principal Paschal, and
Asst. Principal Mills were present and represented by counsel.
Petitioners were also present and represented by counsel.
Both
-6parties
presented
evidence
for
fifteen
minutes.
During
petitioners’ presentation, they presented a single witness on their
behalf, Mr. Monty Gray (“Gray”), the ALC Facilitator/Teacher.
In
addition, petitioners also received a five-minute rebuttal period,
during which they attempted to cross-examine Asst. Principal Mills.
However, at the completion of the five-minute rebuttal period,
petitioners’ cross-examination was not complete, but it was stopped
by the Board Panel at that time.
additional
time
to
Petitioners were not allowed any
cross-examine
any
witnesses
or
argue
in
rebuttal.
On 9 October 2008, the Board Panel issued an opinion that the
matter was not “a discipline based assignment decision or a medical
decision.”
It concluded that there was a reasonable basis to
suspect or believe that Rone “is or may be a danger to himself or
others” at RHS.
RHS
The Board Panel further upheld the decision of the
administrators
to
assign
Rone
to
the
ALC
until
a
risk
assessment was completed and Rone was deemed not to be a threat to
himself or others.
On 10 November 2008, petitioners filed a Petition for Judicial
Review in Forsyth County Superior Court, alleging Rone’s assignment
to the ALC: (1) violated the United States and North Carolina
Constitutions; (2) violated state law and local board policy; (3)
was made upon unlawful procedure; (4) was affected by other errors
of law; (5) was unsupported by substantial evidence; and (6) was
arbitrary and capricious.
Petitioners asked that respondent’s
decision upholding Rone’s assignment to the ALC be reversed and
-7that respondent be ordered to immediately return Rone to regular
classes.
On 11 March 2009, petitioners filed a Motion to Amend the
Petition for Judicial Review (“Motion to Amend”), which the trial
court granted on 26 March 2009.
The Motion to Amend added to the
Petition
the
for
Judicial
Review
additional
allegation
that
respondent denied petitioners a superintendent-level hearing, as
required by respondent’s policies.
On 21 July 2009, the trial
court affirmed respondent’s decision assigning Rone to the ALC
pending a risk assessment.
II.
Petitioners appeal.
Standard of Review
“‘[A] reviewing superior court sits in the posture of an
appellate court and does not review the sufficiency of evidence
presented to it but reviews that evidence presented to the [local
board].’”
In re Alexander v. Cumberland Cty. Bd. of Educ., 171
N.C.
649,
App.
653-54,
615
S.E.2d
408,
413
(2005)
(internal
quotations omitted) (quoting Mann Media, Inc. v. Randolph Cty.
Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002)).
“The
proper standard for the superior court’s judicial review depends
upon the particular issues presented on appeal.”
Id. at 654, 615
S.E.2d at 413 (internal quotations and citations omitted). Pursuant
to N.C. Gen. Stat. § 150B-51(b) (2008):
In reviewing a final decision, the court may
affirm the decision of the agency or remand
the
case
to
the
agency
or
to
the
administrative
law
judge
for
further
proceedings.
It may also reverse or modify
the
agency’s
decision,
or
adopt
the
administrative law judge’s decision if the
substantial rights of the petitioners may have
been prejudiced because the agency’s findings,
inferences, conclusions, or decisions are:
-8(1) In violation of constitutional provisions;
. . .
(3) Made upon unlawful procedure[.]
Id. (quoting N.C. Gen. Stat. § 150B-51).
Where the assigned error
is that the school board violated N.C. Gen. Stat. § 150B-51(b)(1)
or (3), a court engages in de novo review.
Id. (citation omitted).
“Under the de novo standard of review, the trial court considers
the matter anew and freely substitutes its own judgment for the
agency’s.”
Id.
omitted).
(internal quotations, citation, and brackets
When an appellate court reviews
a superior court order regarding an agency
decision, “the appellate court examines the
trial court’s order for error of law.
The
process has been described as a twofold task:
(1) determining whether the trial court
exercised the appropriate scope of review and,
if appropriate, (2) deciding whether the court
did so properly.”
Id. at 655, 615 S.E.2d at 413 (quoting Mann Media, Inc., 356 N.C.
14, 565 S.E.2d at 18).
In the instant case, there is no dispute that the trial court
exercised the appropriate scope of review.
challenge
only
the
trial
court’s
de
Instead, petitioners
novo
review
of
Rone’s
procedural due process claims.
III.
Amendment of Petition
Initially, we address respondent’s cross-assignment of error
that the superior court erred in allowing petitioners to amend
their petition for judicial review in order to assert that Rone was
erroneously
denied a superintendent-level hearing.
We disagree.
-9The North Carolina Rules of Civil Procedure “govern the
procedure in the superior . . . courts of the state of North
Carolina in all actions and proceedings of a civil nature except
when a differing procedure is prescribed by statute.”
Stat. § 1A-1, Rule 1 (2008).
N.C. Gen.
N.C. Gen. Stat. § 1A-1, Rule 15(a)
(2009) (“Rule 15(a)”) allows pleadings to be amended.
15(a), leave to amend should be freely granted.
Under Rule
Bartlett Milling
Co. v. Walnut Grove Auction & Realty Co., 192 N.C. App. 74, 89, 665
S.E.2d 478, 490, disc. review denied, 362 N.C. 679, 669 S.E.2d 741
(2008).
The decision to allow a motion to amend under Rule 15(a)
is directed to the sound discretion of the superior court and is
accorded great deference.
Id.
The exercise of the superior
court's discretion cannot be disturbed on appeal absent a clear
showing of abuse of discretion.
party
to
amendment.
establish
that
it
Id.
was
The burden is on the opposing
materially
prejudiced
by
an
Mosley & Mosley Builders v. Landin LTD., 97 N.C. App.
511, 516, 389 S.E.2d 576, 579 (1990).
Respondent contends that the superior court erred in allowing
petitioners’ Motion to Amend because N.C. Gen. Stat. § 150B-1 et
seq., the North Carolina Administrative Procedure Act (“APA”), has
no
“mechanism
petition.”
that
allows
a
petitioner
to
amend
his
or
her
However, the Rules of Civil Procedure apply to all
proceedings in superior court “except when a differing procedure is
prescribed by statute.”
N.C. Gen. Stat. § 1A-1, Rule 1.
There are
no provisions in the APA that either permit or forbid an amendment
to a petition for judicial review. Since an amendment procedure is
-10not found in the APA, the superior court properly applied Rule
15(a) in the instant case.
Respondent next contends petitioners’ amendment was unduly
delayed because petitioners filed their Motion to Amend on 11 March
2009, a few days after the Board served its superior court brief on
6 March 2009. Additionally, respondent complains that the superior
court did not rule on the Motion to Amend until immediately before
the
hearing
on
the
petition
for
judicial
review.
Finally,
respondent argues that the lack of a superintendent-level hearing
was not presented as an issue before the Board.
contends,
allowing
the
Motion
to
Amend
would
Thus, respondent
“frustrate
the
adversarial process.”
N.C. Gen. Stat. § 150B-51(b)(3) (2008) specifically allows a
petitioner to challenge any decision by an administrative body that
was made upon unlawful procedure before the superior court.
The
Petition for Judicial Review filed by petitioners on 10 November
2008 alleged that respondent’s decision was made upon unlawful
procedure, although it did not specifically assert respondent’s
failure to provide petitioners with a superintendent-level hearing.
However, both respondent’s appellate brief and its opposition to
petitioners’ Motion to Amend indicate that petitioners initially
raised the issue in their brief to the superior court on 4 February
2009. Petitioners’ Motion to Amend alleged that respondent’s brief
addressed this argument, and respondent asserts that it noted in
its brief to the superior court that petitioners’ claim regarding
the absence of a superintendent hearing was not raised in the
-11Petition
for
Judicial
Review.2
Based
on
the
information
in
respondent’s opposition to the Motion to Amend, respondent was
aware
of
petitioners’
claim
regarding
a
superintendent-level
hearing more than a month before the superior court hearing on 20
March 2009.
Thus, we do not believe the timing of petitioners’
amendment materially prejudiced respondent.
Because the Motion to
Amend was not unduly delayed and N.C. Gen. Stat. § 150B-51(b)(3)
specifically allows a petitioner to challenge a decision by an
administrative body that was made upon an unlawful procedure, we
determine that the trial court did not abuse its discretion by
allowing petitioners’ Motion to Amend.
This cross-assignment of
error is overruled.
IV.
A.
Procedural Due Process
School Board Policy
Petitioners argue that Rone’s due process rights were violated
because respondent’s Policy 5131, which requires a superintendentlevel hearing before a student is confined to an ALC, applies in
the instant case and was not followed by respondent.
2
Thus,
Although both parties rely upon the content of respondent’s
superior court briefs in their respective arguments on this issue,
neither petitioners’ nor respondent’s brief is included in the
record on appeal.
As a result, we are unable to verify the
contents of these briefs. Although our resolution of this issue
did not require any information contained in these superior court
briefs, we remind respondent, who raised this issue as a crossassignment of error, that our appellate rules require the record on
appeal to contain “all other papers filed and statements of all
other proceedings had in the trial court which are necessary to an
understanding of all [cross-]errors assigned . . . .” N.C.R. App.
P. 9(a)(1)(j) (2008).
-12respondent contends, the superior court erred by concluding that
Policy 5131 did not apply to Rone.
Policy
5118
governs
We agree.
“Assignment
Conditions for Assignment.”
To
Alternative
Schools:
By its terms, Policy 5118 “applies to
assignments to alternative programs that are an alternative to
suspension from school for up to the remainder of the school year
or for 365 days or an alternative to expulsion.” (emphasis added).
Article VII.A of Policy 5118, titled “Due Process Procedures,”
states:
A.
Students recommended for an assignment to
an alternative school or the ALC program
at
a
regular
high
school
as
an
alternative to suspension are entitled to
a due process hearing regarding that
recommendation as provided by Policy
5131.
Policy 5118, Art. VII.A (emphasis added).
Under Policy 5131, Art.
VI.C:
The
principal
may
recommend
to
the
superintendent the assignment of a student to
an alternative school (or program) or a
suspension of a student from all school
programs for a period in excess of ten school
days but not exceeding the time remaining in
the school year if the student willfully
violates the rules of conduct established by
or in accordance with this policy.
Policy 5131, Art. VI.C.1.
Policy 5131, Article VI.C.3 and 5
subsequently provide for a superintendent-level hearing and its
accompanying due process procedures for students disciplined under
Policy 5131, Article VI.C.1.
When the language of a school board policy is clear and
without ambiguity, it is the duty of this Court to give effect to
-13the plain meaning of the policy.
See North Carolina Dept. of
Revenue v. Hudson, ___ N.C. App. ___, ___, 675 S.E.2d 709, 710
(2009) (“Where the language of a statute is clear and unambiguous,
there is no room for judicial construction and the courts must
construe
the
statute
using
its
quotations and citation omitted).
plain
meaning.”)
(internal
The plain language of Policies
5118 and 5131 reveals that they apply to students who have been
assigned to alternative learning programs as an alternative to
suspension or expulsion.
In the instant case, after petitioners’ initial refusal to
submit to a risk assessment, Rone was placed in the ISS classroom
for the remainder of the 2007-08 school year.
When petitioners
continued to refuse respondent’s request for a risk assessment,
respondent then assigned Rone to the ALC until a risk assessment
was completed.
Since Rone had previously been suspended for his
refusal to submit to a risk assessment, his assignment to the ALC
for the exact same behavior necessarily constituted an alternative
to suspension.
Additionally, although the Board Panel’s letter opinion of 9
October 2008 indicated that it did not consider Rone’s assignment
to the ALC to be a disciplinary assignment, both Principal Puryear
and the Board Panel’s letters informed petitioners that, pursuant
to state law, Rone’s assignment to the ALC would remain in his
cumulative record until five calendar years after Rone graduates or
withdraws from school.
The letters then informed petitioners of
the procedure for expunging the assignment from Rone’s record.
-14This expungement procedure was taken verbatim from N.C. Gen. Stat.
§ 115C-402 (2008), which permits expungement from a student’s
record any “notice of suspension or expulsion.”
The notice given
to petitioners by both Principal Puryear and the Board Panel was
the exact notice required by Policy 5131, Article VI.G, to be given
“[w]hen notice is given to students or parents of a suspension of
more than 10 days or expulsion[.]”
Rone’s placement in ISS at the end of the 2007-08 school year,
coupled with the fact that petitioners were provided with the same
procedures to remove the assignment from his student record as the
procedures required to expunge a long-term suspension or expulsion
from his student record, makes Rone’s assignment to the ALC “an
alternative to suspension from school” under Policy 5118.
result,
petitioners
were
entitled
to
a
due
process
As a
hearing
regarding that assignment as provided by Policy 5131, and the
superior’s
court
conclusion
of
law
that
Policy
5131
was
not
applicable was error.
B.
Motion to Dismiss
On 3 March 2010, respondent filed a Motion to Dismiss the
Appeal,
alleging
respondent
offered
that
petitioners’
petitioners
a
appeal
was
moot
because
superintendent-level
hearing
regarding Rone’s assignment to the ALC for the 2009-10 school year.
We have determined that Rone was assigned to the ALC as an
alternative to suspension and that his assignment therefore was
subject to the procedures in Policy 5131.
Under Policy 5131, the
principal may only recommend assignment to the ALC “for a period in
-15excess of ten school days but not exceeding the time remaining in
the school year. . . .”
Policy 5131, Art. VI.C.1.
Therefore,
petitioners’ appeal concerns only the assignment of Rone to the ALC
for the 2008-09 school year.
offered
a
The fact that petitioners have been
superintendent-level
hearing
for
Rone’s
2009-10
assignment to the ALC is immaterial to the issues in the instant
case.
Accordingly, respondent’s motion to dismiss petitioners’
appeal as moot is denied.
C.
Adequate Due Process
Respondent argues, and the trial court concluded as a matter
of law, that the failure of respondent to provide petitioners with
a superintendent-level hearing was harmless, as petitioners were
later provided with an adequate due process hearing by the threemember Board Panel.
In making this determination, the superior
court relied upon Goodrich v. Newport News School Bd., 743 F.2d 225
(4th Cir. 1984) and In re Alexander, supra.
In Goodrich, the Court
held that, for termination of a public school teacher, “[m]inimal
procedural
due
process
required
.
.
.
adequate
notice,
a
specification of the charges against [the teacher], an opportunity
to confront the witnesses against [the teacher], and an opportunity
to be heard in [the teacher’s] own defense.”
(internal quotations and citation omitted).
743 F.2d at 227
In In re Alexander,
this Court held that a long-term suspended student’s due process
rights were not violated by a hearing where the student was
represented by counsel, in addition to presenting and crossexamining witnesses, presenting documentary evidence, and making
-16legal arguments.
171 N.C. App. at 658, 615 S.E.2d at 415.
An
examination of the hearing procedures and the transcript of the
Board Panel hearing indicates that while petitioners’ hearing
before the Board Panel met some of the due process requirements
listed in Goodrich and In re Alexander, it failed to adequately
provide full due process protections.
Based on the policy’s guidelines, the superintendent-level
hearing is an evidentiary hearing.
See Policy 5131, Art. VI.C.
The purpose of this hearing is “(i) to determine whether the
grounds
[for
alternative
school
assignment]
are
true
and
substantiated and (ii) if true and substantiated, whether the
student’s behavior warrants an alternative school assignment . . .
.”
Id.
At this hearing, the student may be represented by his
parent or guardian, or by an attorney of his choice.
Id.
The
hearing takes place before a neutral hearing officer, and the
principal or his designee has the burden of proving by the greater
weight of the evidence that the student has violated the policy.
Id.
Both the principal and the student are permitted to present
witnesses and evidence, and both sides are permitted to crossexamine the witnesses presented by the opposing side.
Id.
The
student is permitted to appeal the decision of the superintendentlevel hearing to the Board, pursuant to Policy 5131, Art. VI.C.7.
In contrast, petitioners’ challenge to Rone’s assignment to
the
ALC
was
a
Board-level
hearing
grievance procedure in Policy 5145.
conducted
pursuant
to
the
Under this policy, this Board
hearing essentially operates as an appellate hearing.
The policy
-17requires that “a written record of all prior proceedings shall be
prepared
by
the
school
attorney
that
fairly
and
accurately
expresses the facts and contentions of all the parties to the
grievance[.]”
Policy 5145, Art. IV.C.3.
“In addition, each party
shall be allowed to prepare a written statement in support of
his/her position in respect to the grievance[.]” Policy 5145, Art.
IV.C.4.
Each side is permitted fifteen minutes to make their
primary argument. However, “[n]o new evidence shall be admitted at
the hearing” and “the parties shall not be entitled to crossexamine or question any other party to the grievance.”
Policy
5145, Art. IV.C.5. Finally, after the hearing is concluded, “[t]he
hearing panel shall render a decision, in writing, based upon a
review of the whole record and the presentations made at the
hearing[.]”
Policy 5145, Art. IV.C.6.
In the instant case, the Board’s decision, which “unanimously
affirmed the decision” to assign Rone to the ALC, was made without
the benefit of the superintendent-level hearing.
A review of the
transcript indicates that the Board Panel did not strictly comply
with Policy 5145, and permitted petitioners to call a single
witness, gave petitioners five minutes of rebuttal time, and
allowed petitioners to cross-examine Mills during their rebuttal
time.3
However, even though the Board allotted more due process
measures to petitioners than were required by Policy 5145, these
3
Unlike Policy 5145, a Board-level hearing under Policy 5131,
which is a review of the superintendent-level hearing sought by
petitioners, would have permitted these procedures in some
circumstances.
-18measures were still ultimately inadequate.
While petitioners were
permitted to present arguments and a single witness on their behalf
at the Board hearing, the amount of time the witness testified
counted as part of the fifteen minutes allotted for their primary
argument.
questions
Moreover, while petitioners were allowed to ask some
of
Asst.
Principal
Mills
during
their
five-minute
rebuttal time, their cross-examination was cut off by the Hearing
Panel after the expiration of the five-minute period, before the
cross-examination was complete. Petitioners’ attorney specifically
objected to the cessation of his cross-examination. Once the fiveminute rebuttal time was complete, petitioners were not permitted
to cross-examine any additional administrators or witnesses, or
argue in rebuttal.
Under these circumstances, respondent violated
Rone’s due process rights by failing to provide petitioners with an
adequate opportunity to present evidence or cross-examine witnesses
against Rone.
Therefore, we determine that Rone’s assignment to
the ALC was made upon unlawful procedure, and we reverse the trial
court’s order affirming the decision of the Board.
C.
Remedy
In
the
instant
case,
the
Petition
for
Judicial
Review
specifically sought: (1) a reversal of respondent’s assignment of
Rone to the ALC; (2) an order for respondent to allow Rone to
return immediately to the regular classroom; (3) to expunge Rone’s
academic record of all references to the assignment to the ALC; and
(4) that the costs of the action, including reasonable attorney’s
fees, be taxed to respondent.
At the time this appeal was heard by
-19this Court, Rone had already spent the entire 2008-09 school year
in the ALC.
Petitioners correctly note that Rone’s assignment to
the ALC by the Board did not contain a termination date for that
assignment.
Thus, petitioners contend, Rone has been assigned to
the ALC for an indefinite period of time and that this assignment
is ongoing.
However, as previously noted, the principal may only recommend
assignment to the ALC “for a period in excess of ten school days
but not exceeding the time remaining in the school year . . . .”
Policy 5131, Art. VI.C.1.
We have determined, and petitioners
themselves have vociferously argued, that Rone was assigned to the
ALC
as
an
alternative
to
suspension
therefore fell under Policy 5131.
and
that
his
assignment
Thus, pursuant to Policy 5131,
Rone’s assignment to the ALC could necessarily only last until the
completion of the 2008-09 school year.
As a result, our determination that Rone’s assignment to the
ALC for the 2008-09 school year was made upon unlawful procedure
can no longer affect that assignment.
Since our review is limited
to whether Rone’s assignment to the ALC for the 2008-09 school year
was valid, our determination that the assignment was invalid does
not allow us to grant petitioners’ request that Rone be ordered
back into the regular classroom immediately, as the school year at
issue in the instant case has been completed.
Any decision by
respondent to assign Rone to the ALC for any time subsequent to the
2008-09 school year would be considered a new assignment under
Policy 5131.
Such an assignment would once again need to be
-20contested pursuant to the procedure outlined in that policy and
then, if necessary, appealed to the superior court, before it could
be appealed to this Court.
However, since it is no longer possible to provide Rone with
adequate due process to challenge his assignment to the ALC for the
2008-09 school year, we remand the case to the superior court with
instructions to further remand the case to the School Board in
order to expunge the assignment to the ALC for the 2008-09 school
year from Rone’s student record.
On remand, the superior court
should also determine whether petitioners are entitled to the costs
of the action.
VI.
Conclusion
It is unfortunate that the instant case needed to be resolved
by this Court, when cooperation between the parties could have
resulted in simpler and less costly resolutions.
We do not wish
our disposition to preclude schools from being able to adequately
protect their faculty, staff, and students from those who may be a
threat
to
themselves
or
others.
We
recognize
that
“‘school
districts are in the best position to judge the student’s actions
in light of all the surrounding circumstances’” and craft a remedy
“‘to fit the unique circumstances of each student’s situation.’”
King v. Beaufort County Bd. of Educ., ___ N.C. ___, ___, ___ S.E.2d
___, ___ (2010) (quoting In Re RM, 2004 WY 162, ¶ 25, 102 P.3d 868,
876 (Wyo. 2004)).
However, our review of the instant case is limited to the
interpretation and application of respondent’s specific policies
-21which were in place at the time of Rone’s ALC assignment to the
facts which led to the assignment.
the
ALC
was
an
alternative
to
Because Rone’s assignment to
suspension
under
respondent’s
policies, petitioners were entitled to a superintendent-level due
process hearing as a result of that assignment.
Respondent failed
to provide petitioners with adequate due process to support a longterm assignment to the ALC under its procedures which were in place
at the time of the assignment.
Rone’s assignment to the ALC for the 2008-09 school year was
an alternative to suspension under Policy 5118.
As a result,
petitioners were entitled to the due process superintendent-level
hearing set out in Policy 5131.
The Board Panel hearing actually
provided to petitioners was inadequate to satisfy the requirements
of due process.
Therefore, the order of the superior court
affirming respondent’s decision to assign Rone to the ALC is
reversed.
This disposition makes it unnecessary to consider
petitioners’ additional assignments of error.
Because the 2008-09 school year is complete, our courts can no
longer order respondent to allow Rone to return to the regular
classroom for that school year.
However, since Rone’s assignment
to the ALC was made upon unlawful procedure, it should be expunged
from his student record.
Consequently, we remand the instant case
to the superior court for further remand to the Board to expunge
Rone’s
assignment
Additionally,
on
to
the
remand,
ALC
the
for
the
superior
2008-09
court
school
should
year.
determine
whether petitioners are entitled to the costs of the proceedings.
-22Reversed and remanded.
Judges GEER and STEPHENS concur.
