In the Matter of the Expulsion of B.M. from Independent School District No. 2142.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-421

 

In the Matter of the Expulsion of B.M.

from Independent School District No. 2142.

 

Filed ­­­August 17, 2004

Affirmed

Harten, Judge

 

Minnesota Department of Education

 

 

Mike Hatch, Attorney General, Martha J. Casserly, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2130 (for respondent Minnesota Department of Education)

 

Carla J. Lindell, Colosimo, Patchin, Kearney, Lindell & Brufelt, Ltd., 301 Chestnut Street, Virginia, MN 55792 (for respondent Independent School District No. 2142)

 

B.M., 2839 County Road 904, Babbitt, MN 55706 (pro se appellant)

 

            Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Relator B.M. challenges the commissioner's decision to affirm his expulsion from school, arguing that his due process rights were violated during the expulsion proceeding and that the evidence is insufficient to show that he verbally assaulted a teacher.  We affirm. 

FACTS

In 2003, B.M. was a junior at John F. Kennedy School in St. Louis County Independent School District 2142 (District).  The District has a code of conduct that prohibits students from verbally and physically assaulting staff.[1]  High school students receive copies of this code during the first week of school. 

In September 2003, B.M. verbally assaulted a teacher and was suspended for five days.  The principal sent B.M. a letter indicating that another verbal assault toward a staff member would result in his expulsion from school for one year.  On 18 November 2003, B.M.'s study hall teacher asked him to remain after class due to misbehavior.  When study hall ended, B.M. verbally threatened to destroy school property and to physically harm the teacher if she did not let him leave the classroom.  As a result, B.M. was suspended from school indefinitely pending an expulsion hearing. 

B.M. received a letter on 2 December 2003 notifying him of the proposed expulsion and setting a hearing date for 8 December 2003.  At the hearing, the District and B.M. each presented five witnesses.  Based on this testimony and exhibits admitted into evidence, a hearing officer concluded that B.M. willfully violated the District's reasonable policies by verbally assaulting school staff in September and November 2003.  The hearing officer recommended expelling B.M. 

On 15 December 2003, the school board voted to expel B.M. for a period of one calendar year.  B.M. filed a timely appeal with the Commissioner of the Department of Children, Families, and Learning (commissioner).  The commissioner affirmed B.M.'s expulsion, concluding that the record supports a determination that B.M. twice violated District policies by verbally assaulting school staff.  B.M. now appeals by writ of certiorari.

D E C I S I O N

The Pupil Fair Dismissal Act (PFDA) establishes procedures for the suspension, exclusion, and expulsion of public school students.  Minn. Stat. §§ 121A.40-.56 (2002).  Students who willfully violate any reasonable school board regulation may be expelled under the PFDA.  Minn. Stat. § 121 A. 45, subd. 2.  The PFDA expressly provides for the appeal of a district's expulsion decision to the commissioner and limited judicial review of that body's decision under the Administrative Procedure Act.  Id. §§ 121A.49-.50.  This court may reverse an administrative agency's decision only if the decision (1) violates a constitutional provision; (2) is outside the statutory authority or jurisdiction of the agency; (3) is based on unlawful procedures; (4) reflects an error of law; (5) is unsupported by substantial evidence; or (6) is arbitrary and capricious.  Minn. Stat. § 14.69 (2002). 

1.         Relator's Due Process Claims

 

            The PFDA sets forth the procedural due process framework to be followed when a student faces expulsion from school.  "No public school shall deny due process or equal protection of the law to any public school pupil involved in a dismissal proceeding which may result in suspension, exclusion, or expulsion."  Minn. Stat. § 121 A. 42.  Students subject to expulsion procedures have the right to present evidence and confront and cross-examine witnesses at a hearing.  Minn. Stat. § 121 A. 47, subds. 1, 2. 

On appeal, B.M. raises a number of due process arguments.  First, B.M. argues that his due process rights were violated during the expulsion proceedings because he was denied the opportunity to "question, cross examine or call witnesses" regarding the September 2003 incident of verbal assault. 

The record shows that the September 2003 incident occurred between B.M. and teacher Seth Ismil.  The District sent B.M. a notice of witnesses for the expulsion hearing that listed Ismil as a teacher the District intended to call.  But at the hearing, the District informed the parties that Ismil could not attend and instead offered into evidence Ismil's notarized statement, which documents the September 2003 incident.  B.M. objected to admission of the statement, arguing that he was being denied his right to cross-examine Ismil.  The hearing officer deferred ruling on the objection until the end of the hearing.  At the close of testimony, the officer admitted the statement into evidence.

The commissioner concluded that admitting the notarized statement into evidence did not violate B.M.'s due process rights.  The record supports this conclusion because even if the notarized statement had not been admitted into evidence, there is additional evidence in the record that shows B.M. verbally assaulted a teacher in September 2003.  The principal testified that he suspended B.M. for five days after the September 2003 incident of "verbal assault."  He further testified that he sent a letter to B.M.'s parents that notified them of the incident and the suspension.  That letter was admitted into evidence.  B.M. had the opportunity to cross-examine the principal and to present his own evidence regarding the incident.  Under these circumstances, B.M.'s due process rights were not violated. 

Second, B.M. argues his due process rights were violated because he was not provided with proper access to witnesses.  The record shows that B.M. requested a list of all the students in the study hall during the incident on 18 November 2003 and that the District instead provided B.M. with a list of all seventh-and-eighth-grade students.  B.M. asserts that he was prejudiced by this because he "blindly selected names" from the list to testify on his behalf and because students from other grades may have been in the study hall.  The commissioner concluded that the District did not violate B.M.'s due process rights by failing to provide him with a class roster, and the record supports this conclusion.  B.M. called five students from the study hall to testify on his behalf at the hearing.  And the District called two additional students from the study hall whom B.M. had the opportunity to cross-examine.[2]  B.M. fails to identify what additional evidence would have been provided if he had been given access to a class roster and had called more students to testify.   In addition, the PFDA does not guarantee students subject to expulsion the right to obtain class rosters.  See Minn. Stat. § 121 A. 47.  

Third, B.M. argues his due process rights were violated because the District "forced" a student to testify at the expulsion hearing against her will.  The commissioner concluded there is no evidence in the record to support this claim.  A thorough review of the record supports the commissioner's conclusion.  Consequently, there is insufficient evidence in the record to conclude the District obtained the student's testimony in an inappropriate manner.

Fourth, B.M. argues that his due process rights were violated because he was suspended indefinitely after the November 2003 incident.  The suspension notice that B.M. received for the November 2003 incident, which was admitted into evidence, shows that B.M. was suspended "indefinite[ly] pending expulsion hearing."  The commissioner concluded that the District violated the PFDA by issuing an indefinite suspension.  This conclusion is supported by Minn. Stat. § 121 A. 41, subd. 10, which authorizes school districts to suspend a student for a maximum of 15 school days while initiating an expulsion.  A technical violation of the PFDA, made in good faith, is not a defense to disciplinary procedures under the act unless the student demonstrates actual prejudice as a result of the violation.  Minn. Stat. § 121 A. 48.  The record shows that B.M.'s suspension began on 20 November 2003.  The school board expelled B.M. on 15 December 2003.  Assuming that students received time off for the holidays, B.M.'s "indefinite" suspension lasted less than the 15-day maximum allowed under the PFDA.  And even if students did not receive time off for the holidays, which would result in an 18-day suspension, B.M. has failed to show how he was prejudiced by this delay.

Finally, B.M. asserts that he was prejudiced by the District's failure to provide him with "alternative schooling" until February 2004.  The PFDA requires school districts to provide "alternative educational services" to expelled students.  Minn. Stat. 121A.55(a) (2002).  Alternative educational services include, but are not limited to, "special tutoring, modified curriculum, modified instruction, other modifications or adaptations, instruction through electronic media, special education services as indicated by appropriate assessment, homebound instruction, supervised homework, or enrollment in another district . . . to allow the pupil to progress toward meeting graduation standards . . . ."  Minn. Stat. § 121 A. 41, subd. 11. 

            The commissioner did not reach a conclusion regarding this specific allegation.  Instead, the commissioner noted the alternative educational services that the District provided B.M. and instructed the District to ensure that it complies with PFDA's alternative-education requirements during B.M.'s expulsion.  The record shows that during the expulsion proceedings B.M. was allowed to obtain his school assignments and make-up work.  The record, however, does not specify whether a teacher was assigned to supervise B.M.'s homework.  Although the PFDA gives school districts discretion to establish alternative educational services for expelled students, the act clearly states that homework should be supervised.  The District, therefore, may have failed to comply with the PFDA by not immediately assigning a teacher to supervise B.M.'s homework.  But the record shows that B.M. was not significantly prejudiced by this oversight.  In his brief, B.M. indicates that the District helped him obtain the services of a tutor by February 2004.  Because B.M. had access to his homework during the expulsion period and because only approximately one month elapsed from his expulsion to the assignment of a tutor, the District substantially complied with the PFDA's alternative-education requirement. 

2.         Sufficiency of the Evidence

 

When an agency acts in a quasi-judicial capacity, we apply the substantial-evidence test on review.  In re Petition of N. States Power Co., 416 N.W.2d 719, 723 (Minn. 1987).  We give great deference to an agency's findings of facts.  Info Tel Communications, L.L.C. v. Minn. Pub. Utils. Comm'n, 592 N.W.2d 880, 884 (Minn. App. 1999), review denied (Minn. 28 July 1999).  Substantial evidence is "(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety."  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).  Under the substantial-evidence test, we evaluate the evidence relied on by the agency in view of the entire record as submitted.  Cable Communications Bd. v. Nor-West Cable Communications P'ship, 356 N.W.2d 658, 668 (Minn. 1984).  If an agency engages in reasoned decision-making, the reviewing court will affirm.  Id. at 669.

B.M. argues that there is insufficient evidence to show that he verbally assaulted the study hall teacher in November 2003.  Specifically, he argues that because it is unclear whether he called the study hall teacher a "b*tch" or a "sow," the District has failed to show that a verbal assault occurred.  B.M. believes the term "sow" is not offensive, and, if that is the language he used, he did not commit a verbal assault.

The commissioner concluded that the evidence was sufficient to establish that B.M. verbally assaulted his study hall teacher.  Although it is unclear from the record whether B.M. called the study hall teacher a "b*tch" or "sow," the record supports the commissioner's conclusion.  The study hall teacher testified that she had advised B.M. to remain after class due to misbehavior.  When the bell rang, she positioned herself in front of the classroom doorway.  B.M. walked up to her and said, "Get the hell out of my way."  The teacher told B.M. to sit down, and B.M. backed her up against the door and again said, "I said get the hell out of my way."  The teacher again asked B.M. to sit down and B.M. told her that if she "didn't get out of his way, it wouldn't be a pretty sight."  When the teacher asked B.M. if he was threatening her he replied, "I'm making a statement and it's not going to be pretty."  At that point, B.M. "continued to swear" at the teacher and told her he "didn't know how Jesus Christ could have made a b*tch or a sow like [her]."  He then told the teacher he was going to "smash" her.  He also walked over to a television and acted as though he intended to destroy it.  A short time later, he "charged" the teacher in an attempt to leave the room.  The teacher blocked the doorway and B.M. pushed her as he left the room.  The teacher testified that the altercation, with B.M. made her feel that she was in "danger" of being harmed.  Students present during the incident corroborated the teacher's version of events by testifying that B.M. threatened to harm the teacher and school property.

The District's code of conduct defines verbal assault as words that "arous[e] alarm in others through the use of language that is discriminatory, abusive, threatening, or obscene."  Even discounting the disputed "b*tch" or "sow" language, the record shows that B.M. used other abusive, threatening, and obscene language during the November 2003 incident.  Thus, the commissioner's conclusion that B.M. verbally assaulted the study hall teacher is supported by substantial evidence. 

Affirmed.

[1] The code of conduct uses the term "verbal" assault.  "Verbal" means "in words" which can be either oral or written.

[2] The record shows there were only 28 to 30 students in the study hall.