Colquitt v. Rich Township HS
Annotate this Case
August 14, 1998
Fifth Division
1-97-2563
JANET COLQUITT, as Mother and Next ) Appeal from the
Friend of LEMONT COLQUITT, a Minor, ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. )
)
RICH TOWNSHIP HIGH SCHOOL )
DISTRICT NO. 227, ) Honorable
) Ellis E. Reid,
Defendant-Appellant. ) Judge Presiding.
JUSTICE HARTMAN delivered the opinion of the court:
Lemont Colquitt, a freshman at Rich South High School (Rich
South), through his mother and next friend, sought a writ of
certiorari in the circuit court to enjoin the Board of Education of
Rich Township High School District No. 227 (Board) from expelling
him. The Board appeals from the court's order reversing its
decision and finding that section 10-22.6 of the Illinois School
Code (School Code) is unconstitutional as applied to Lemont,
raising as issues whether (1) the School Code is constitutionally
deficient as applied in the case sub judice for failing to mandate
the verbatim transcription of disciplinary hearings; (2) Lemont
was deprived of the right to confrontation and cross-examination in
violation of his due process rights; and (3) the Board's decision
to expel Lemont was supported by the evidence.
On January 14, 1997, the Board entered an order expelling
Lemont Colquitt from Rich South for three semesters due to gross
misconduct, harassment and verbal intimidation. The Board had
conducted a hearing previously and provided notice to Lemont's
parents in accordance with the applicable provisions of the School
Code (105 ILCS 5/10-22.6 (West 1996)).
A hearing officer appointed by the Board presided over the
hearing, which took place on January 9, 1997. In attendance were
Lemont and his parents, their attorney, numerous witnesses, and the
attorney for Rich South's administration. The hearing lasted six
hours. Both oral testimony and written statements were admitted.
Both attorneys were provided the opportunity to cross-examine the
witnesses. Although no court reporter was present, the hearing
officer prepared a 36-page report summarizing the evidence.
According to that report, Dr. Kenneth Reczkiewicz, principal
of Rich South, testified that on December 11, 1996, he interviewed
three students regarding an earlier verbal altercation involving
Lemont. Although Reczkiewicz did not witness the actual
confrontation, he spoke with each student immediately after the
incident and each individually prepared, dated and signed written
statements for Reczkiewicz detailing their observations. None of
the students were present at the hearing; two already had withdrawn
from Rich South, attending alternative schools, and the other was
not reenrolled. Over a hearsay objection by Lemont's attorney, the
statements of the three students, Charles Williams, Bryan Gayles
and Gian Rhymes, were entered as evidence.
According to the statements, on December 11, 1996, all three
students were in the high school after hours to watch a basketball
game. During the game, Lemont, who was accompanied by another
young man, started a verbal altercation with Gian outside the
gymnasium, resulting in Lemont and his companion showing Gian,
Charles and Bryan guns and threatening to kill them. Immediately
thereafter, Lemont and the other young man ran out of the school.
After those statements were admitted at the hearing, several
witnesses testified. Enyth Preacely, a teacher at Rich South,
testified at the hearing that she approached a group of students,
including Gian, Lemont and another young man, standing outside the
gymnasium. Immediately, she heard Lemont say to Gian, "if you take
it outside you won't come back in, I'll put a cap in you," while
patting his waist with both hands. Lemont's friend, whom Preacely
could not identify, stated he had a gun. Although she saw no
weapon, Preacely left to summon the police.
Lionel Cesar, a teacher at Rich South, testified that he
approached Gian and Lemont outside the school's gymnasium while the
two were exchanging loud words. Grabbing onto Gian to prevent a
physical fight, Cesar heard Lemont shout, "why don't you come out.
I promise you will not come back." Cesar also saw Lemont and his
companion pull up their coats and gesture towards their waists as
if to indicate they had weapons. Although Cesar saw no guns, he
heard Lemont again say that Gian would "not come back if he stepped
out" and also heard someone in the gathering crowd shout, "there's
a gun, there's a gun."
While Cesar still held Gian, Rich South teacher Lee Johnson,
arriving as the altercation ended, saw two individuals walking away
from the area. Knowing that the police had been called, Johnson
yelled for the two to stop, but they began running and left the
school through the front doors.
Also testifying at the hearing was Assistant Principal
Margurite Martin. She conducted a follow-up investigation of the
incident. Over a hearsay objection, Martin indicated that she had
spoken to an unnamed student on three occasions whom she believed
was a credible and unbiased witness to the incident. Although the
student witnessed the incident, he was not aligned with either
group and his presence at the scene was inadvertent. According to
Martin, the student was frightened and would not testify for fear
of retaliation. At Martin's urging, however, the student prepared
a written statement which was admitted at the hearing over
objection. That statement indicated that while Lemont argued with
Gian, Charles and Bryan, he held a gun at a firing angle for three
to five seconds after which he ran out of the high school.
A statement by Edwin Wilkins, basketball coach at Rich South,
also was admitted at the hearing over objection by Lemont's
attorney. Wilkins' statement detailed his observation of an
argument between two students, neither of whom he knew by name,
outside the gymnasium. He described one of the students, matching
Lemont's description, and indicated that the student stated, "I'm
packing," while lifting his shirt and gesturing towards his
waistband.
At the conclusion of the school administration's evidence,
Lemont was given the opportunity to present any witness testimony,
statements or other evidence regarding his alleged misconduct. In
his case, Lemont presented the testimony of four witnesses in
addition to his own.
According to the testimony, Melissa Robinson, Stacy Blanchard
and Lakia Colquitt, who is Lemont's sister, were members of the
Future Business Leaders of America at Rich South and attended a
meeting of that club on December 11, 1996. After the meeting, the
club showed a movie and served pizza to those in attendance. The
girls had invited Lemont and Mario Robinson, Melissa's 21-year-old
brother, to watch the movie with them. At some point after the
meeting, Gian approached Stacy, who was Lemont's girl friend, and
asked for pizza, but was told "no," and left. Gian returned again
to ask Stacy for pizza. He grabbed Stacy's arm, stating, "girl,
don't let me get violent with you." Lemont was present during this
exchange and told Gian to leave Stacy alone. Stacy and Lemont then
left the area without further trouble.
Shortly thereafter, Lemont and Mario encountered Gian, Charles
and Bryan outside the gymnasium. Lemont and Gian again began
arguing, with Gian threatening Lemont and using gang gestures and
slogans. Neither Lemont nor Mario carried, displayed or made
threats about a gun; rather, it was Gian, a known gang member, who
threatened Lemont. Immediately after the argument, Lemont and
Mario left the school.
The following day, Mario, a security guard, turned himself in
at the Richton Park police department for questioning. Mario gave
a written statement to the police, which was admitted at the
hearing, indicating that he never carried a gun, never used a gun
for his job and did not display a gun at the high school.
On January 13, 1997, acting upon the report prepared by the
hearing officer, the Board expelled Lemont for the remainder of the
1996-97 school year and the entire 1997-98 school year. Basing its
decision on the evidence presented at the hearing, the Board did
not consider the charge of possession of a weapon on school grounds
against Lemont. Instead, the Board's expulsion of Lemont was based
solely on the gross misconduct, harassment, and verbal intimidation
allegations.
Following notice of his expulsion, Lemont filed a petition for
writ of certiorari in the circuit court, seeking a reversal of the
Board's decision on the basis that the expulsion was arbitrary,
capricious and unreasonable. After granting Lemont's petition for
writ of certiorari, the court issued a preliminary injunction
staying the expulsion and allowing Lemont to remain in school.
Thereafter, on June 13, 1997, the circuit court found that the
absence of a transcript of the expulsion hearing denied Lemont
"fundamental due process" and reversed the Board's decision. The
Board filed a timely appeal of that order.
I
The Board initially claims that the circuit court erred in
finding the School Code constitutionally invalid as applied to
Lemont for failing to mandate the transcription of disciplinary
hearings. Lemont insists that the lack of a transcript in the
instant case violates his due process rights.
A student's entitlement to a public education is a property
interest which is protected by due process guarantees; therefore,
it may not be taken away without adherence to minimal procedural
safeguards. Stratton v. Wenona Community Unit District No. 1, 133 Ill. 2d 413, 432, 551 N.E.2d 640 (1990). Although due process
envisions an orderly proceeding wherein notice and an opportunity
to be heard are afforded, procedural due process in an
administrative setting does not always require application of the
judicial model. Stratton, 133 Ill. 2d at 433. The procedural
safeguards required by due process in a particular case vary,
depending on (1) the significance of the private interest which
will be affected, (2) the risk of the erroneous deprivation of that
interest through the procedures used, and (3) the significance of
fiscal and administrative burdens that the additional or substitute
procedural safeguards would entail. Mathews v. Eldridge, 424 U.S. 319, 334, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Stratton, 133 Ill. 2d at 433. An analysis of each of these considerations leads to
the conclusion that Lemont's due process rights were not violated
by the lack of a verbatim transcript of the hearing.
Addressing the first consideration, there is no question that
Lemont possesses a significant interest in the uninterrupted
continuation of his education. In dispute, however, is whether the
risk of erroneous deprivation of this interest would have been
significantly reduced by the use of a court reporter at his
expulsion hearing.
Urging the necessity of transcription, Lemont contends that
the risk of erroneous deprivation of his interest is all the
greater because the hearing officer is an employee of the Board,
the final arbiter of the hearing. Suggesting that this
relationship evidences a bias on the part of the hearing officer,
Lemont insists that hearings must be transcribed to avoid potential
prejudice.
Notwithstanding Lemont's argument, the idea that the mere
combination of judging and investigating functions is a denial of
due process has been repudiated. Scott v. Department of Commerce
and Community Affairs, 84 Ill. 2d 42, 55, 416 N.E.2d 1082 (1981);
Caliendo v. Martin, 250 Ill. App. 3d 409, 421-22, 620 N.E.2d 1318
(1993). "State administrators 'are assumed to be men of conscience
and intellectual discipline, capable of judging a particular
controversy fairly on the basis of its own circumstances.'" Scott,
84 Ill. 2d at 55, quoting United States v. Morgan, 313 U.S. 409,
421, 85 L. Ed. 1429, 61 S. Ct. 999 (1941). There is nothing in the
record, nor has Lemont cited any particular instance, to overcome
a presumption of honesty and integrity on the part of the hearing
officer.
Moreover, the length and detail of the hearing summary belies
any inference that the hearing officer was biased. In the instant
case, the hearing officer's lengthy summary of the evidence
detailed each witnesses' testimony; further, the hearing officer
documented the cross-examination of each witness, at times quoting
the witnesses on key issues. Importantly, the summary documents
the impeachment of Rich South's witnesses through cross-examination
and notes that Lemont's attorney brought out a number of weaknesses
through cross-examination, including the following: Gian's
statement describing Lemont's use of the gun in Cesar's presence
was inconsistent with Cesar's testimony that he saw no weapon;
Johnson could not identify the two individuals running away; Cesar
heard both groups of students using words such as "you won't come
back in"; and neither Cesar nor Preacely saw or heard how the
altercation began.
Given the detail presented, the circuit court erred in holding
the lack of a transcript affected its ability to review the Board's
decision. The circuit court's order, addressing the evidence
presented, contained five pages of factual findings.
Notwithstanding the length and detail of its own findings, the
court nonetheless held that "[w]ithout a transcript, there is no
evidence to support the ultimate decision of the school board."
Focusing on the factual dispute in the case at bar, the court found
it "impossible" to "determine where the manifest weight of the
evidence rests." Both the direct testimony and the impeachment
evidence were documented, providing the circuit court with
sufficient evidence upon which to weigh the Board's decision. The
lack of a transcript in the instant case could not have
detrimentally affected Lemont's due process rights under the
foregoing circumstances.
Supreme Court Rule 323 provides that in the event that no
transcript of proceeding is obtainable, a proposed report of
proceeding from the best available sources, including recollection,
may be filed. See 134 Ill. 2d R. 323(c); Washington v. Smith, 248
Ill. App. 3d 534, 537, 618 N.E.2d 561 (1993) (circuit court's
finding that affidavit with six pages of testimony and a partially
inaudible tape was insufficient to review school board hearing was
erroneous); Sneddon v. State Employee's Retirement System, 69 Ill.
App. 3d 992, 995-56, 388 N.E.2d 229 (1979) (use of a bystander's
report in administrative hearing of pension claim obviated need for
verbatim transcript).
The absence of a court reporter, in and of itself, is neither
a denial of due process nor a denial of equal protection; there is
no requirement to provide a stenographer's transcript in every case
as long as there is some other means to allow for adequate and
effective review. See Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585 (1956); People v. Hopping, 60 Ill. 2d 246, 252-
52, 326 N.E.2d 395 (1975). Because the hearing officer's report is
sufficiently detailed to provide for adequate and effective review,
Lemont was not denied due process in the instant case where the
expulsion hearing was not transcribed.
For the foregoing reasons, the circuit court's order, holding
that the absence of a transcript was a denial of procedural due
process, was in error and must be reversed.
II
Lemont next asserts that it was error for the hearing officer
to admit, over objection, those statements made by students and
teachers not testifying at the hearing, in violation of his due
process right to confront and cross-examine witnesses.
Due process is a flexible concept determined by the nature of
the interest affected and the context in which the alleged
deprivation occurs. See Mathews v. Eldridge, 424 U.S. 319, 334, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). The immutable minimum
requisites of due process, however, are notice and a meaningful
opportunity to be heard. See Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 105 S. Ct. 1487
(1985); Goldberg v. Kelly, 397 U.S. 254, 267-68, 25 L. Ed. 2d 287,
90 S. Ct. 1011 (1970). The flexibility of due process is found in
the type of notice which must be provided and the formality and
fairness of the hearing which provides the opportunity to be heard.
Lemont was entitled, therefore, at a minimum, to be given "some
kind of notice and afforded some kind of hearing." (Emphasis in
original.) Goss v. Lopez, 419 U.S. 565, 579, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975).
The United States Supreme Court has held that "[t]he extent to
which procedural due process must be afforded the recipient is
influenced by the extent to which he may be 'condemned to suffer
grievous loss[]'." Goldberg v. Kelly, 397 U.S. at 262-63, quoting
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168,
95 L. Ed. 2d 817, 71 S. Ct. 624 (1951). Whether the loss
threatened by a particular type of proceeding is sufficiently grave
to warrant more than average administrative safeguards, therefore,
turns on both the nature of the private interest threatened and the
permanency of the threatened loss.
To determine the nature of the proceedings and the particular
procedural safeguards which need apply requires analysis of the
following factors: (1) the significance of the private interest
which will be affected, (2) the risk of the erroneous deprivation
of that interest through the procedures used, and (3) the
significance of fiscal and administrative burdens that the
additional or substitute procedural safeguards would entail. See
Eldridge, 424 U.S. at 334; Santosky v. Kramer, 455 U.S. 745, 754,
71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Stratton, 133 Ill. 2d at
433. An analysis of each of these considerations leads to the
conclusion that there was an absence of meaningful procedure at
Lemont's expulsion hearing.
Unquestionably, "a student's legitimate entitlement to a
public education [is] a property interest which is protected by the
Due Process Clause and which may not be taken away for misconduct
without adherence to the minimum procedures required by that
Clause." Goss, 419 U.S. at 574. As long as a property interest
is not de minimis, due process, in some form, must be accorded.
Goss, 419 U.S. at 575-76. At least in the case of 10-day
suspensions, Goss stopped "short of construing the Due Process
Clause to require, countrywide, that hearings in connection with
short suspensions must afford the student the opportunity to secure
counsel, to confront and cross-examine witnesses supporting the
charge, or to call his own witnesses to verify his version of the
incident." Goss, 419 U.S. at 583. Nevertheless, the Goss court
suggested that "[l]onger suspensions or expulsions for the
remainder of the school term, or permanently, may require more
formal procedures." Goss, 419 U.S. at 584.
Accordingly, Lemont's entitlement to a public education is of
significance, particularly when expulsion proceedings place that
interest in jeopardy for lengthy periods of time. The question
remaining, therefore, concerns whether the procedures used in the
instant case were sufficient to guard against the erroneous
deprivation of that interest.
Lemont makes no specific claims that he was denied, at all
times, the right to confront and cross-examine witnesses against
him. Instead, portraying Gian Rhymes, Bryan Gayles and Charles
Williams as his accusers, he claims that the admission of their
statements denied him due process. Lemont was notified of the
allegations and the hearing date in advance and was afforded a
lengthy hearing during which he was represented by counsel; he was
not, however, given the opportunity to cross-examine all witnesses
against him. Although three independent witnesses were present to
observe portions of the behavior and the language of Lemont, none
of those witnesses were present at the inception of the
confrontation. In fact, the only accusing witnesses against Lemont
who allegedly observed the entire incident were not even present at
the hearing. Here, the outcome of the hearing was directly
dependent on the credibility of witnesses whose statements were
received by the hearing officer; yet, these statements were
conflicting. In such an instance, the opportunity for cross-
examination is imperative.
The Board maintains, however, that the value of cross-
examination in school disciplinary cases is muted by the fact that
the veracity of a student account of misconduct by another is
initially assessed by a school administrator who has a
particularized knowledge of the student's trustworthiness. Coupled
with the fact that an expulsion hearing is not subject to all the
common-law rules of evidence and procedure, the Board asserts that
admission of hearsay, therefore, is not a denial of procedural due
process where school officials are qualified to test students'
credibility. We disagree, for in this instance, the admission of
hearsay accusatory statements which also are bolstered by a school
official's testimony that the proponent is "reliable," as occurred
with Assistant Principal Martin's testimony, is a particularly
egregious departure from the adversarial standard.
Although an expulsion hearing is not a judicial or quasi-
judicial proceeding and, therefore, common law rules of evidence
need not be transplanted wholesale, certain protections, such as
from witnesses "motivated by malice, vindictiveness, intolerance,
prejudice, or jealousy," must be maintained. See Goldberg, 397 U.S. at 270, quoting Greene v. McElroy, 360 U.S. 474, 496, 3 L. Ed. 2d 1377, 79 S. Ct. 1400 (1959). Moreover, "[a] basic tenet of our
jurisprudence is that a person should receive a fair and impartial
hearing, with an opportunity to offer evidence and cross-examine
witnesses." Golden Egg Club, Inc. v. Illinois Liquor Control
Commission, 124 Ill. App. 2d 241, 244, 260 N.E.2d 329 (1970);
Gigger v. Board of Fire & Police Commissioners, 23 Ill. App. 2d
433, 438-39, 163 N.E.2d 541 (1959). Fundamental concepts of a fair
hearing include "the opportunity to be heard, the right to cross-
examine adverse witnesses and to impartiality in rulings upon
evidence." Mahonie v. Edgar, 131 Ill. App. 3d 175, 179, 476 N.E.2d 474 (1985).
Finally, the Board contends that, because it has no powers of
subpoena, "there is no way that school administrators could compel
witnesses to testify at student disciplinary hearings." The mere
fact, however, that the School Code does not confer subpoena powers
to the Board cannot excuse noncompliance with principles of due
process. See, e.g., Smith v. Miller, 213 Kan. 1, 14, 514 P.2d 377,
387 (1973). An adjustment is required in those cases where only
the witnesses' statements are available, but not the witnesses
themselves.
In a similar vein, the Board asserts that the failure to
protect student-witnesses' anonymity would create further violence,
stigmatize the student witnesses and deter those witnesses from
voluntarily providing information. Risk of retaliation might
justify a school board's reliance on written witness reports in
some expulsion hearings; it does not, however, warrant dependence
on reports in all cases or in cases where there is no showing of a
significant risk of harm. Here, with the exception of Assistant
Principle Martin's testimony regarding the unnamed student-
witness's fear of reprisal, there was no evidence that any of the
student-witnesses were threatened or in danger if they testified.
Accordingly, those witnesses' statements should not have been
considered by the Board.
In sum, in expulsion proceedings, the private interest is
commanding; the risk of error from the lack of adversarial testing
of witnesses through cross-examination is substantial; and the
countervailing governmental interest favoring the admission of
hearsay statements is comparatively outweighed. See Eldridge, 424 U.S. at 334. Evaluation of the three Eldridge factors, therefore,
compels the conclusion that the expansive use of accusatory
hearsay, as was done in the instant case, is inconsistent with and
violative of due process.
Based on the foregoing, the judgment of the circuit court
reversing the Board's expulsion order is affirmed. The cause is
remanded to the Board for further proceedings consistent with this
opinion. Because we find that Lemont was not afforded procedural
due process, we need not address his contention that the Board's
decision was arbitrary or capricious.
Reversed in part, affirmed in part, and remanded.
HOFFMAN, P.J., and HOURIHANE, J., concurring.
Fifth Division
1-97-2563
JANET COLQUITT, as Mother and Next ) Appeal from the
Friend of LEMONT COLQUITT, a Minor, ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. )
)
RICH TOWNSHIP HIGH SCHOOL )
DISTRICT NO. 227, ) Honorable
) Ellis E. Reid,
Defendant-Appellant. ) Judge Presiding.
JUSTICE HARTMAN delivered the opinion of the court:
Lemont Colquitt, a freshman at Rich South High School (Rich
South), through his mother and next friend, sought a writ of
certiorari in the circuit court to enjoin the Board of Education of
Rich Township High School District No. 227 (Board) from expelling
him. The Board appeals from the court's order reversing its
decision and finding that section 10-22.6 of the Illinois School
Code (School Code) is unconstitutional as applied to Lemont,
raising as issues whether (1) the School Code is constitutionally
deficient as applied in the case sub judice for failing to mandate
the verbatim transcription of disciplinary hearings; (2) Lemont
was deprived of the right to confrontation and cross-examination in
violation of his due process rights; and (3) the Board's decision
to expel Lemont was supported by the evidence.
On January 14, 1997, the Board entered an order expelling
Lemont Colquitt from Rich South for three semesters due to gross
misconduct, harassment and verbal intimidation. The Board had
conducted a hearing previously and provided notice to Lemont's
parents in accordance with the applicable provisions of the School
Code (105 ILCS 5/10-22.6 (West 1996)).
A hearing officer appointed by the Board presided over the
hearing, which took place on January 9, 1997. In attendance were
Lemont and his parents, their attorney, numerous witnesses, and the
attorney for Rich South's administration. The hearing lasted six
hours. Both oral testimony and written statements were admitted.
Both attorneys were provided the opportunity to cross-examine the
witnesses. Although no court reporter was present, the hearing
officer prepared a 36-page report summarizing the evidence.
According to that report, Dr. Kenneth Reczkiewicz, principal
of Rich South, testified that on December 11, 1996, he interviewed
three students regarding an earlier verbal altercation involving
Lemont. Although Reczkiewicz did not witness the actual
confrontation, he spoke with each student immediately after the
incident and each individually prepared, dated and signed written
statements for Reczkiewicz detailing their observations. None of
the students were present at the hearing; two already had withdrawn
from Rich South, attending alternative schools, and the other was
not reenrolled. Over a hearsay objection by Lemont's attorney, the
statements of the three students, Charles Williams, Bryan Gayles
and Gian Rhymes, were entered as evidence.
According to the statements, on December 11, 1996, all three
students were in the high school after hours to watch a basketball
game. During the game, Lemont, who was accompanied by another
young man, started a verbal altercation with Gian outside the
gymnasium, resulting in Lemont and his companion showing Gian,
Charles and Bryan guns and threatening to kill them. Immediately
thereafter, Lemont and the other young man ran out of the school.
After those statements were admitted at the hearing, several
witnesses testified. Enyth Preacely, a teacher at Rich South,
testified at the hearing that she approached a group of students,
including Gian, Lemont and another young man, standing outside the
gymnasium. Immediately, she heard Lemont say to Gian, "if you take
it outside you won't come back in, I'll put a cap in you," while
patting his waist with both hands. Lemont's friend, whom Preacely
could not identify, stated he had a gun. Although she saw no
weapon, Preacely left to summon the police.
Lionel Cesar, a teacher at Rich South, testified that he
approached Gian and Lemont outside the school's gymnasium while the
two were exchanging loud words. Grabbing onto Gian to prevent a
physical fight, Cesar heard Lemont shout, "why don't you come out.
I promise you will not come back." Cesar also saw Lemont and his
companion pull up their coats and gesture towards their waists as
if to indicate they had weapons. Although Cesar saw no guns, he
heard Lemont again say that Gian would "not come back if he stepped
out" and also heard someone in the gathering crowd shout, "there's
a gun, there's a gun."
While Cesar still held Gian, Rich South teacher Lee Johnson,
arriving as the altercation ended, saw two individuals walking away
from the area. Knowing that the police had been called, Johnson
yelled for the two to stop, but they began running and left the
school through the front doors.
Also testifying at the hearing was Assistant Principal
Margurite Martin. She conducted a follow-up investigation of the
incident. Over a hearsay objection, Martin indicated that she had
spoken to an unnamed student on three occasions whom she believed
was a credible and unbiased witness to the incident. Although the
student witnessed the incident, he was not aligned with either
group and his presence at the scene was inadvertent. According to
Martin, the student was frightened and would not testify for fear
of retaliation. At Martin's urging, however, the student prepared
a written statement which was admitted at the hearing over
objection. That statement indicated that while Lemont argued with
Gian, Charles and Bryan, he held a gun at a firing angle for three
to five seconds after which he ran out of the high school.
A statement by Edwin Wilkins, basketball coach at Rich South,
also was admitted at the hearing over objection by Lemont's
attorney. Wilkins' statement detailed his observation of an
argument between two students, neither of whom he knew by name,
outside the gymnasium. He described one of the students, matching
Lemont's description, and indicated that the student stated, "I'm
packing," while lifting his shirt and gesturing towards his
waistband.
At the conclusion of the school administration's evidence,
Lemont was given the opportunity to present any witness testimony,
statements or other evidence regarding his alleged misconduct. In
his case, Lemont presented the testimony of four witnesses in
addition to his own.
According to the testimony, Melissa Robinson, Stacy Blanchard
and Lakia Colquitt, who is Lemont's sister, were members of the
Future Business Leaders of America at Rich South and attended a
meeting of that club on December 11, 1996. After the meeting, the
club showed a movie and served pizza to those in attendance. The
girls had invited Lemont and Mario Robinson, Melissa's 21-year-old
brother, to watch the movie with them. At some point after the
meeting, Gian approached Stacy, who was Lemont's girl friend, and
asked for pizza, but was told "no," and left. Gian returned again
to ask Stacy for pizza. He grabbed Stacy's arm, stating, "girl,
don't let me get violent with you." Lemont was present during this
exchange and told Gian to leave Stacy alone. Stacy and Lemont then
left the area without further trouble.
Shortly thereafter, Lemont and Mario encountered Gian, Charles
and Bryan outside the gymnasium. Lemont and Gian again began
arguing, with Gian threatening Lemont and using gang gestures and
slogans. Neither Lemont nor Mario carried, displayed or made
threats about a gun; rather, it was Gian, a known gang member, who
threatened Lemont. Immediately after the argument, Lemont and
Mario left the school.
The following day, Mario, a security guard, turned himself in
at the Richton Park police department for questioning. Mario gave
a written statement to the police, which was admitted at the
hearing, indicating that he never carried a gun, never used a gun
for his job and did not display a gun at the high school.
On January 13, 1997, acting upon the report prepared by the
hearing officer, the Board expelled Lemont for the remainder of the
1996-97 school year and the entire 1997-98 school year. Basing its
decision on the evidence presented at the hearing, the Board did
not consider the charge of possession of a weapon on school grounds
against Lemont. Instead, the Board's expulsion of Lemont was based
solely on the gross misconduct, harassment, and verbal intimidation
allegations.
Following notice of his expulsion, Lemont filed a petition for
writ of certiorari in the circuit court, seeking a reversal of the
Board's decision on the basis that the expulsion was arbitrary,
capricious and unreasonable. After granting Lemont's petition for
writ of certiorari, the court issued a preliminary injunction
staying the expulsion and allowing Lemont to remain in school.
Thereafter, on June 13, 1997, the circuit court found that the
absence of a transcript of the expulsion hearing denied Lemont
"fundamental due process" and reversed the Board's decision. The
Board filed a timely appeal of that order.
I
The Board initially claims that the circuit court erred in
finding the School Code constitutionally invalid as applied to
Lemont for failing to mandate the transcription of disciplinary
hearings. Lemont insists that the lack of a transcript in the
instant case violates his due process rights.
A student's entitlement to a public education is a property
interest which is protected by due process guarantees; therefore,
it may not be taken away without adherence to minimal procedural
safeguards. Stratton v. Wenona Community Unit District No. 1, 133 Ill. 2d 413, 432, 551 N.E.2d 640 (1990). Although due process
envisions an orderly proceeding wherein notice and an opportunity
to be heard are afforded, procedural due process in an
administrative setting does not always require application of the
judicial model. Stratton, 133 Ill. 2d at 433. The procedural
safeguards required by due process in a particular case vary,
depending on (1) the significance of the private interest which
will be affected, (2) the risk of the erroneous deprivation of that
interest through the procedures used, and (3) the significance of
fiscal and administrative burdens that the additional or substitute
procedural safeguards would entail. Mathews v. Eldridge, 424 U.S. 319, 334, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Stratton, 133 Ill. 2d at 433. An analysis of each of these considerations leads to
the conclusion that Lemont's due process rights were not violated
by the lack of a verbatim transcript of the hearing.
Addressing the first consideration, there is no question that
Lemont possesses a significant interest in the uninterrupted
continuation of his education. In dispute, however, is whether the
risk of erroneous deprivation of this interest would have been
significantly reduced by the use of a court reporter at his
expulsion hearing.
Urging the necessity of transcription, Lemont contends that
the risk of erroneous deprivation of his interest is all the
greater because the hearing officer is an employee of the Board,
the final arbiter of the hearing. Suggesting that this
relationship evidences a bias on the part of the hearing officer,
Lemont insists that hearings must be transcribed to avoid potential
prejudice.
Notwithstanding Lemont's argument, the idea that the mere
combination of judging and investigating functions is a denial of
due process has been repudiated. Scott v. Department of Commerce
and Community Affairs, 84 Ill. 2d 42, 55, 416 N.E.2d 1082 (1981);
Caliendo v. Martin, 250 Ill. App. 3d 409, 421-22, 620 N.E.2d 1318
(1993). "State administrators 'are assumed to be men of conscience
and intellectual discipline, capable of judging a particular
controversy fairly on the basis of its own circumstances.'" Scott,
84 Ill. 2d at 55, quoting United States v. Morgan, 313 U.S. 409,
421, 85 L. Ed. 1429, 61 S. Ct. 999 (1941). There is nothing in the
record, nor has Lemont cited any particular instance, to overcome
a presumption of honesty and integrity on the part of the hearing
officer.
Moreover, the length and detail of the hearing summary belies
any inference that the hearing officer was biased. In the instant
case, the hearing officer's lengthy summary of the evidence
detailed each witnesses' testimony; further, the hearing officer
documented the cross-examination of each witness, at times quoting
the witnesses on key issues. Importantly, the summary documents
the impeachment of Rich South's witnesses through cross-examination
and notes that Lemont's attorney brought out a number of weaknesses
through cross-examination, including the following: Gian's
statement describing Lemont's use of the gun in Cesar's presence
was inconsistent with Cesar's testimony that he saw no weapon;
Johnson could not identify the two individuals running away; Cesar
heard both groups of students using words such as "you won't come
back in"; and neither Cesar nor Preacely saw or heard how the
altercation began.
Given the detail presented, the circuit court erred in holding
the lack of a transcript affected its ability to review the Board's
decision. The circuit court's order, addressing the evidence
presented, contained five pages of factual findings.
Notwithstanding the length and detail of its own findings, the
court nonetheless held that "[w]ithout a transcript, there is no
evidence to support the ultimate decision of the school board."
Focusing on the factual dispute in the case at bar, the court found
it "impossible" to "determine where the manifest weight of the
evidence rests." Both the direct testimony and the impeachment
evidence were documented, providing the circuit court with
sufficient evidence upon which to weigh the Board's decision. The
lack of a transcript in the instant case could not have
detrimentally affected Lemont's due process rights under the
foregoing circumstances.
Supreme Court Rule 323 provides that in the event that no
transcript of proceeding is obtainable, a proposed report of
proceeding from the best available sources, including recollection,
may be filed. See 134 Ill. 2d R. 323(c); Washington v. Smith, 248
Ill. App. 3d 534, 537, 618 N.E.2d 561 (1993) (circuit court's
finding that affidavit with six pages of testimony and a partially
inaudible tape was insufficient to review school board hearing was
erroneous); Sneddon v. State Employee's Retirement System, 69 Ill.
App. 3d 992, 995-56, 388 N.E.2d 229 (1979) (use of a bystander's
report in administrative hearing of pension claim obviated need for
verbatim transcript).
The absence of a court reporter, in and of itself, is neither
a denial of due process nor a denial of equal protection; there is
no requirement to provide a stenographer's transcript in every case
as long as there is some other means to allow for adequate and
effective review. See Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585 (1956); People v. Hopping, 60 Ill. 2d 246, 252-
52, 326 N.E.2d 395 (1975). Because the hearing officer's report is
sufficiently detailed to provide for adequate and effective review,
Lemont was not denied due process in the instant case where the
expulsion hearing was not transcribed.
For the foregoing reasons, the circuit court's order, holding
that the absence of a transcript was a denial of procedural due
process, was in error and must be reversed.
II
Lemont next asserts that it was error for the hearing officer
to admit, over objection, those statements made by students and
teachers not testifying at the hearing, in violation of his due
process right to confront and cross-examine witnesses.
Due process is a flexible concept determined by the nature of
the interest affected and the context in which the alleged
deprivation occurs. See Mathews v. Eldridge, 424 U.S. 319, 334, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). The immutable minimum
requisites of due process, however, are notice and a meaningful
opportunity to be heard. See Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 105 S. Ct. 1487
(1985); Goldberg v. Kelly, 397 U.S. 254, 267-68, 25 L. Ed. 2d 287,
90 S. Ct. 1011 (1970). The flexibility of due process is found in
the type of notice which must be provided and the formality and
fairness of the hearing which provides the opportunity to be heard.
Lemont was entitled, therefore, at a minimum, to be given "some
kind of notice and afforded some kind of hearing." (Emphasis in
original.) Goss v. Lopez, 419 U.S. 565, 579, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975).
The United States Supreme Court has held that "[t]he extent to
which procedural due process must be afforded the recipient is
influenced by the extent to which he may be 'condemned to suffer
grievous loss[]'." Goldberg v. Kelly, 397 U.S. at 262-63, quoting
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168,
95 L. Ed. 2d 817, 71 S. Ct. 624 (1951). Whether the loss
threatened by a particular type of proceeding is sufficiently grave
to warrant more than average administrative safeguards, therefore,
turns on both the nature of the private interest threatened and the
permanency of the threatened loss.
To determine the nature of the proceedings and the particular
procedural safeguards which need apply requires analysis of the
following factors: (1) the significance of the private interest
which will be affected, (2) the risk of the erroneous deprivation
of that interest through the procedures used, and (3) the
significance of fiscal and administrative burdens that the
additional or substitute procedural safeguards would entail. See
Eldridge, 424 U.S. at 334; Santosky v. Kramer, 455 U.S. 745, 754,
71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Stratton, 133 Ill. 2d at
433. An analysis of each of these considerations leads to the
conclusion that there was an absence of meaningful procedure at
Lemont's expulsion hearing.
Unquestionably, "a student's legitimate entitlement to a
public education [is] a property interest which is protected by the
Due Process Clause and which may not be taken away for misconduct
without adherence to the minimum procedures required by that
Clause." Goss, 419 U.S. at 574. As long as a property interest
is not de minimis, due process, in some form, must be accorded.
Goss, 419 U.S. at 575-76. At least in the case of 10-day
suspensions, Goss stopped "short of construing the Due Process
Clause to require, countrywide, that hearings in connection with
short suspensions must afford the student the opportunity to secure
counsel, to confront and cross-examine witnesses supporting the
charge, or to call his own witnesses to verify his version of the
incident." Goss, 419 U.S. at 583. Nevertheless, the Goss court
suggested that "[l]onger suspensions or expulsions for the
remainder of the school term, or permanently, may require more
formal procedures." Goss, 419 U.S. at 584.
Accordingly, Lemont's entitlement to a public education is of
significance, particularly when expulsion proceedings place that
interest in jeopardy for lengthy periods of time. The question
remaining, therefore, concerns whether the procedures used in the
instant case were sufficient to guard against the erroneous
deprivation of that interest.
Lemont makes no specific claims that he was denied, at all
times, the right to confront and cross-examine witnesses against
him. Instead, portraying Gian Rhymes, Bryan Gayles and Charles
Williams as his accusers, he claims that the admission of their
statements denied him due process. Lemont was notified of the
allegations and the hearing date in advance and was afforded a
lengthy hearing during which he was represented by counsel; he was
not, however, given the opportunity to cross-examine all witnesses
against him. Although three independent witnesses were present to
observe portions of the behavior and the language of Lemont, none
of those witnesses were present at the inception of the
confrontation. In fact, the only accusing witnesses against Lemont
who allegedly observed the entire incident were not even present at
the hearing. Here, the outcome of the hearing was directly
dependent on the credibility of witnesses whose statements were
received by the hearing officer; yet, these statements were
conflicting. In such an instance, the opportunity for cross-
examination is imperative.
The Board maintains, however, that the value of cross-
examination in school disciplinary cases is muted by the fact that
the veracity of a student account of misconduct by another is
initially assessed by a school administrator who has a
particularized knowledge of the student's trustworthiness. Coupled
with the fact that an expulsion hearing is not subject to all the
common-law rules of evidence and procedure, the Board asserts that
admission of hearsay, therefore, is not a denial of procedural due
process where school officials are qualified to test students'
credibility. We disagree, for in this instance, the admission of
hearsay accusatory statements which also are bolstered by a school
official's testimony that the proponent is "reliable," as occurred
with Assistant Principal Martin's testimony, is a particularly
egregious departure from the adversarial standard.
Although an expulsion hearing is not a judicial or quasi-
judicial proceeding and, therefore, common law rules of evidence
need not be transplanted wholesale, certain protections, such as
from witnesses "motivated by malice, vindictiveness, intolerance,
prejudice, or jealousy," must be maintained. See Goldberg, 397 U.S. at 270, quoting Greene v. McElroy, 360 U.S. 474, 496, 3 L. Ed. 2d 1377, 79 S. Ct. 1400 (1959). Moreover, "[a] basic tenet of our
jurisprudence is that a person should receive a fair and impartial
hearing, with an opportunity to offer evidence and cross-examine
witnesses." Golden Egg Club, Inc. v. Illinois Liquor Control
Commission, 124 Ill. App. 2d 241, 244, 260 N.E.2d 329 (1970);
Gigger v. Board of Fire & Police Commissioners, 23 Ill. App. 2d
433, 438-39, 163 N.E.2d 541 (1959). Fundamental concepts of a fair
hearing include "the opportunity to be heard, the right to cross-
examine adverse witnesses and to impartiality in rulings upon
evidence." Mahonie v. Edgar, 131 Ill. App. 3d 175, 179, 476 N.E.2d 474 (1985).
Finally, the Board contends that, because it has no powers of
subpoena, "there is no way that school administrators could compel
witnesses to testify at student disciplinary hearings." The mere
fact, however, that the School Code does not confer subpoena powers
to the Board cannot excuse noncompliance with principles of due
process. See, e.g., Smith v. Miller, 213 Kan. 1, 14, 514 P.2d 377,
387 (1973). An adjustment is required in those cases where only
the witnesses' statements are available, but not the witnesses
themselves.
In a similar vein, the Board asserts that the failure to
protect student-witnesses' anonymity would create further violence,
stigmatize the student witnesses and deter those witnesses from
voluntarily providing information. Risk of retaliation might
justify a school board's reliance on written witness reports in
some expulsion hearings; it does not, however, warrant dependence
on reports in all cases or in cases where there is no showing of a
significant risk of harm. Here, with the exception of Assistant
Principle Martin's testimony regarding the unnamed student-
witness's fear of reprisal, there was no evidence that any of the
student-witnesses were threatened or in danger if they testified.
Accordingly, those witnesses' statements should not have been
considered by the Board.
In sum, in expulsion proceedings, the private interest is
commanding; the risk of error from the lack of adversarial testing
of witnesses through cross-examination is substantial; and the
countervailing governmental interest favoring the admission of
hearsay statements is comparatively outweighed. See Eldridge, 424 U.S. at 334. Evaluation of the three Eldridge factors, therefore,
compels the conclusion that the expansive use of accusatory
hearsay, as was done in the instant case, is inconsistent with and
violative of due process.
Based on the foregoing, the judgment of the circuit court
reversing the Board's expulsion order is affirmed. The cause is
remanded to the Board for further proceedings consistent with this
opinion. Because we find that Lemont was not afforded procedural
due process, we need not address his contention that the Board's
decision was arbitrary or capricious.
Reversed in part, affirmed in part, and remanded.
HOFFMAN, P.J., and HOURIHANE, J., concurring.
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