Paul Blume's Columns - The most dreaded decision (November 2010)

Sometimes, school boards must expel a student. Here’s how to
perform a sad duty the right way.

When I was in Lawyer School, back in the days of roomsized computers and vacuum-tube televisions (OK, I exaggerate. There were no televisions.), one of my professors told the following tale, which I hope is true but probably is apocryphal: The state of Texas had laws which provided for the death penalty for cattle rustling but only 40 years or so for murder.

When a yankee swell stumbled upon this fact, he asked a sheriff why they would hang people for rustling cattle but only incarcerate someone who had committed murder. The sheriff replied, “Well, we figure there ain’t no cattle that need stealin’, but there probably are some folks who need killin’.” I’m not sure that the professor’s tale is apropos to expulsion, but, from an educational standpoint, expulsion could be the equivalent of cattle rustling: Nobody wants to see it happen.

Nevertheless, expulsion sometimes is necessary in order to get a student away from your other students and your staff. Drugs, violence and weapons are all good reasons to consider expulsion. Whatever the student did in order to justify expulsion does not have to have occurred on campus or during school hours, and that goes back a long way in Arkansas law. In the 1909 case of Douglas vs. Campbell, 89 Ark. 254, the Arkansas Supreme Court upheld an expulsion of a student who, during the Christmas holidays, decided to become drunk and disorderly in town. Things haven’t really changed in that regard. If what a student does could affect the orderly operation or educational processes of the school, then the school may impose its own discipline, and that’s regardless of what the criminal authorities do or don’t do.

Since board members have the final say in whether a student is expelled (or whether some lesser discipline or none is imposed), it will not be uncommon to get phone calls from the students’ parents or friends asking you to give the poor kid a break. That is completely improper – for them to call you and for you to speak with them. If someone calls you about an expulsion (or, for that matter, an employee dismissal), he’s trying to influence you. There’s a time and place for that: the hearing. Politely tell the person who’s trying to improperly influence you that since it’s a student matter, and because you might be called upon to make a decision on it, you may not discuss it. Tell ‘em your lawyer said so. That way, he can despise me, instead of you, for not allowing him to act improperly.

The hearing on a student expulsion must be held within 10 school days (or the equivalent in schools that have block scheduling), so when your superintendent is sending out the notice letter to Mommy and Daddy, the letter should set the hearing date, time and place. If Mommy and Daddy can’t make it then, they may request a postponement for some short, reasonable period with a written statement that they understand that their innocent little student may not return to school, even after 10 school days.

At the hearing, especially if the parents lawyer up, both the board and administration should have lawyers, one to conduct the hearing (usually my job) and one to assist the administration in its representation and questioning (and defending the superintendent, etc., from the parents’ lawyer’s onslaughts). Don’t underestimate the importance of that in any hearing.

And I know it’s hard to do – that is, to kick a kid out of school. That’s not why you’re on the board. But sometimes it’s necessary. I was in federal court several years ago, and a student was suing a district for having been expelled. As his lawyer was trying to explain to the judge that there were mitigating circumstances, the judge stopped the lawyer in mid-sentence and said, “He took a gun to school. There ARE no mitigating circumstances!”

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