Last week, Mr. Superintendent sent an email to the members of the Nutmeg Board of Education, asking who would be available for an expulsion hearing.  It is a busy time, and several of the Board members bowed out.  However, after some cajoling from Mr. Superintendent’s administrative assistant, Board members Red Cent, Mal Content, and Bob Bombast all agreed to sit as the panel deciding the case.  In advance of the hearing, Mr. Superintendent sent the Board members a copy of the hearing notice, which identified the student and stated that the reason for the expulsion was distribution of a controlled substance.

The hearing was last evening.  Joe Blow, the accused student, was represented by local attorney Bill Alot.  In his opening statement, Bill asked the Board members to have an open mind about the charges Ms. Superintendent had brought against his client.  For his part, Mr. Superintendent simply asked the Board members to listen carefully to the evidence and do what is necessary to keep Nutmeg students save from the scourge of drugs.

Mr. Superintendent presented his case by calling Al Assistant, the long-serving assistant principal at Nutmeg Memorial High School in charge of student discipline.  On direct examination, Mr. Assistant testified that he had heard from a student that Joe Blow is a “dealer” who could “fix up” any student who is looking for “weed” or “ecstasy.”  Mr. Superintendent then asked how Mr. Assistant investigated further, and he explained that he’d spoken informally with several students with whom he had a close relationship, and they told him unequivocally that Joe was known throughout the school for providing drugs to students.

Attorney Alot then started his cross examination.  He asked Mr. Assistant if he had any direct knowledge of Joe Blow’s dealing drugs, and Mr. Assistant admitted that he did not.  Attorney Bill Alot then elevated his tone, asking Mr. Assistant if he had ever even bothered to ask Joe Blow to respond to these allegations.  Mr. Assistant assured Bill Alot that he had interviewed Joe as part of his investigation, but that he found Joe’s denials unconvincing.

When cross examination ended, Mr. Superintendent rested his case, and the Board members asked Attorney Alot if Joe would be testify.  “No need,” responded Bill Alot.

With that, the Board asked for closing statements.  Mr. Superintendent stressed the importance of being tough on drugs, but Attorney Alot claimed that Mr. Assistant’s testimony was rank hearsay and that the Board members should reject the recommendation for expulsion.

The Board members then retired into private session to deliberate.  Bob Bombast started the discussion with the observation that the Board members shouldn’t believe anything Joe says.  Bob started to explain that his nephew had told him about some run-ins with Joe, but the other two Board members interrupted him, asking Bob if he has a conflict of interest and should recuse himself.  But Bob simply said “Never mind” and redirected the discussion to the case against Joe.  Bob told the other Board members that he found Mr. Assistant’s testimony quite credible, and he wondered aloud about what Joe had to hide by not testifying.

Red Cent enthusiastically agreed, but Mal Content disagreed.  “Expulsion is a serious matter, and we need more than rumors to expel Joe.  I can’t vote to expel.”

“Suit yourself,” Bob responded.  The Board members returned to the hearing room, reconvened in open session, and voted 2 to 1 to expel Joe.

Did the Board members mess up?

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The Board members’ vote was ineffective because Conn. Gen. Stat. § 10-233d requires that there be three affirmative votes in order to expel a student.  However, the ineffective vote was only one of many problems in this case.

When board of education members conduct expulsion hearings (or student accommodation or transportation hearings), they perform a quasi-judicial function.  As “judges,” board members are constrained by principles of due process, key elements of which are fair notice and impartiality.

Here, both the student and the Board members received notice of the hearing.  Such notice to the student is required by statute, which regulates the content of such notice.  It was appropriate for the Board members to receive a copy of the notice as well, so that they are informed of the identity of the student and can know whether any personal connections to the student would affect their ability to decide the case impartially.  While board members should not discuss the case with the superintendent outside of the hearing, notice of the charges, without more, does not create a problem.

An impartial decision-maker is an essential element of due process.  Board members should not investigate the matter independently or talk on the side about the case with the superintendent or others.  Rather, all information that board members rely upon to make a decision should be presented at the hearing.  If a board member brings into the deliberations information that was not shared during the hearing, the student (or the superintendent) would be denied the opportunity to know of and potentially challenge the information being shared.

Here, Bob started to describe other information he had received from his nephew about Joe Blow.  The other Board members properly shut him down, but the question remained – could Bob be impartial?  These matters are not black and white, and the law generally leaves the question to the individual board member – can he or she decide the matter without letting outside information affect deliberation on the matter?  However, Bob’s statements during deliberations were concerning and could give Joe a due process claim.

Hearsay is reliance on a statement of a third party for the truth of the matter asserted.  Mr. Assistant’s testimony was indeed hearsay, because he had no direct knowledge and offered what some students had said as proof of Joe’s guilt.  The problem with hearsay is that the other party cannot effectively cross-examine the testimony because the person(s) with direct knowledge (whose hearsay statements are used) is not present to explain or answer questions.

The essence of due process is basic fairness, and extensive use of hearsay can be unfair.  Given these concerns, the rule for many years was that it was a due process violation to rely on hearsay to expel a student.  In recent years, courts have been more tolerant of hearsay testimony in expulsion cases because of concerns for student safety.  However, in the interest of a fair hearing, boards should permit hearsay testimony only when it is reliable

Finally, we note that two Board members were ready to draw an adverse inference from Joe’s not testifying.  Such an inference would be improper.  The burden of proof in an expulsion hearing is on the superintendent, who must make the case for expulsion.  To be sure, the standard in an expulsion case is that the superintendent must prove the case by a preponderance of the evidence, i.e., does the evidence make it more probable than not that the charges are true. Moreover, Joe’s testimony could help him by providing evidence of his innocence.  However, Joe did not have the burden of proving himself to be innocent, and the Board members should have left whether Joe testified up to him and his lawyer.