CABE Journal
April 2015

The almost-interminable winter was finally over, and Peter Principal saw a significant uptick in the number of suspensions for offenses ranging from horseplay to assault.  To make things worse, many of the students had their lawyers on speed dial, and suspension hearings are increasingly becoming mini-trials.  But the problems were not limited to the physical interactions between and among the students.

SeeYouInCourtImageThe telephone rang in Mr. Principal’s office.  “Have you seen it?” asked Bob Bombast, veteran member of the Nutmeg Board of Education.  Mr. Principal had no idea what Bob was talking about.  Bob continued, “There is a new blog out, and everyone is talking about it and posting links to it on their Facebook pages.”

When Mr. Principal asked Bob what that has to do with him, Bob sighed.  “It has everything to do with you, Peter.  It is supposed to be your blog.  And it is not pretty.  It looks like somebody copied your picture from the school website, and they used it to create ‘Peter Principal’s Perch – a Commentary on Life and Times at Nutmeg High School.’  The blog includes posts about teachers at your school, including pictures of female teachers with ‘your’ vulgar comments on their appearance and more.  While the blog purports to be created by you, even I know that it is a hoax.  I don’t know who hates you enough to do this, but this blog is a colossal embarrassment for you and the entire school system.  If some student did this, he or she should be expelled for sure.”

Mr. Principal thanked Bob for giving him this bad news and for his support, and he finished the conversation with Bob by vowing to bring the miscreant who created this blog to justice.   It didn’t take long.

Mr. Principal has his sources, and soon a student told him confidentially that Joe Blow, an honors student, created the blog.  Apparently, Joe was so pleased with his handiwork that he was overheard bragging to other students about the blog.  But to be safe, Mr. Principal asked some other students, and two other students confirmed that they too had heard that Joe Blow was the mastermind behind the blog.

Mr. Principal called Joe Blow down to the office and accused him of creating the blog.  However, Joe was a cool customer, and he stated that he would remain silent on “advice of counsel.”  Mr. Principal suspended Joe on the spot, and he warned Joe that his silence about the blog would not fly at an expulsion hearing.

The expulsion hearing was held last evening.  Mr. Principal presented the information set out above, and he urged the Board to expel Joe for at least one calendar year.  However, Bill Alot, a local attorney representing Joe, was dismissive of Mr. Principal’s case.  “The case against Joe is bupkis,” Bill intoned.  “What do we have?  Rumor? At worst, we may have Joe’s misguided attempt to boost his self-esteem by claiming responsibility for something he would never do.  The Board must exonerate Joe now.”

Bob Bombast was visibly irritated by Bill’s presentation, and at his first chance he jumped in.  “What Joe did was despicable, and he must pay.  The Board members have been talking about this embarrassing blog since it appeared, and we are pleased to find the student responsible and punish him for his actions.

Should Joe be expelled?  Do you have any concerns about Bob’s role here?

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Bob’s actions and comments were inappropriate.  Board members serve in expulsion hearings as judges, and an impartial decision-maker is a fundamental element of due process.  Accordingly, board members should not be personally involved in such matters, and they should certainly not form and express an opinion about an expulsion decision outside of the hearing itself.  Bob’s comments to Mr. Principal and the discussion among Board members about this matter outside the hearing here could well result in a finding that the Board denied Joe due process.  This is not to say that board members cannot participate in expulsion hearings if they have heard about a particular situation (and it is hard to imagine the Board members here not hearing about this blog).  Rather, board members must set aside prior knowledge and determine whether they can decide the case impartially based on the evidence presented.  If so, they may participate, and if not, they should recuse themselves.

The hearing itself raised at least two serious legal issues.  First is the question of proof.  In an expulsion hearing, the superintendent has the burden of proving that the student did in fact engage in the conduct alleged.  Here, Joe admitted nothing, and the evidence presented by the Superintendent was simply that other students had heard Joe bragging.  Such evidence is hearsay, because it is testimony on what someone else said that is presented for the truth of what the speaker said.  If Mr. Superintendent had called the other students to testify, the Board could have considered their direct accounts and found that the statements by Joe were admissions by him.  However, simply by reporting what the other students told him, Mr. Superintendent was asking the Board to rely on hearsay testimony.

In recent years, the courts have been more tolerant of hearsay testimony in student expulsion hearings because of the threat of violence against a student who testifies.  However, here, there was no such concern, and Mr. Superintendent’s reliance on hearsay testimony raised significant due process issues.

Joe’s actions raise an issue of free speech as well.  The Internet has posed significant challenges for school officials who must decide whether and when to discipline students for their online activities.  At present, the law is evolving, because online activity raises basic questions about the jurisdiction of school officials.  At present, we may say that school officials have jurisdiction over online activity when one can reasonably forecast that the postings or other activity will come into the school.

Jurisdiction however, is only the threshold question.  Online activity by students is “speech,” which as such is protected by the First Amendment unless school officials can reasonably predict that such speech will cause substantial disruption or material interference with the educational process or will invade the rights of others.  Here, it is not clear that Joe’s blog, annoying as it was to Peter Principal and the Board, was disruptive.  Indeed, in most cases challenging discipline for online activity, the courts have found that the online speech was not disruptive and was thus protected.

Finally, in passing we note that students in Nutmeg facing suspension have been lawyering up.  The United States Supreme Court first decided in Goss v. Lopez (1973) that students facing discipline are entitled to due process.  However, in the Goss case, the court clearly stated that for suspensions of ten days or less, students are entitled only to an informal hearing to hear the charges and to respond, i.e. no lawyers allowed.