Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

Though the new school year is barely two weeks old, I am sorry to report that I have already been through an expulsion hearing. On the very first day of school, one of my students started selling raffle tickets on behalf of a church to fellow students, with the prize supposedly being a motorcycle. However, it turns out that there was no church and no motorcycle and, in short, he was defrauding his fellow students. They were understandably mad and a number of them threatened to beat him up.

That student told me the whole story and asked me for protection. I told this little scammer that I would provide whatever protection I could, but also that I would be recommending his expulsion because his actions were seriously disruptive of the educational process. My superintendent agreed and we went to the hearing. We were brought up short, however, when the student’s lawyer asked me on cross-examination to identify the board policy that the student had violated. I denied that any board policy was in issue and explained that the student was being expelled for fraud.

The student’s lawyer then moved that “the charges be dismissed. I thought that it was a typical lawyer’s ploy, but I was shocked when, after a brief deliberation, the board agreed. What gives?

Thank you,
Dazed and Confused

Dear Confused:

Welcome to the aftermath of the 2019 legislative session. For years and years, students have been subject to expulsion for conduct that “[1] is violative of a publicized policy of such board or [2] is seriously disruptive of the educational process or [3] endangers persons or property.” In 2015, expulsions were limited to students in grades 3 through 12 except in limited circumstances; and, in 2019, the General Assembly amended the expulsion statute again, which change caused the problem you report.

As of July 1 of this year, expulsion of students in grades 3 through 12 is allowed in only two circumstances: when conduct endangers persons or property or when the conduct “is violative of a publicized policy of such board and is seriously disruptive of the educational process.” (Emphasis added). That means that, when the conduct does not endanger persons or property, a superintendent recommending expulsion will have to show that the student’s conduct both violated a board policy and was seriously disruptive of the educational process.

This change will not affect many expulsion proceedings because board policies typically prohibit the conduct that would lead to a recommendation for expulsion. However, it is important to be aware of this change for two reasons. First, school boards and their administrators should review current discipline policies to assure that the prohibitions against student misconduct are framed in a sufficiently broad manner. Second, in making expulsion recommendations, administrators must now identify the board policy that the student violated. No one likes to expel students, of course, but when expulsion is warranted, administrators must be prepared to comply with this new law.