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Home / Courts / Schools & School Boards – Long-Term Suspension – Fight – Striking Teacher – Constitutional – Alternative Education Offer – Due Process

Schools & School Boards – Long-Term Suspension – Fight – Striking Teacher – Constitutional – Alternative Education Offer – Due Process

Watson-Green v. Wake County Board of Education. (Lawyers Weekly No. 10-16-1022, 32 pp.) (Ann Marie Calabria, J.) Appealed from Wake County Superior Court. (Orlando F. Hudson Jr., J.) N.C. App. Unpub. Click here to read the full text of the opinion.

Holding: A fight between petitioner “Ryan” and fellow student “Bill” had been broken up by school personnel, and Bill was being held by teacher Steven Klein when Ryan swung a fist at Bill’s face and accidentally hit Mr. Klein. Ryan was not entitled to a defense based on the respondent-school board’s policy that “a student who is attacked may use reasonable force in self-defense, but only to the extent necessary to get free from the attack and notify proper school authorities.”

We affirm the trial court’s decision to uphold Ryan’s long-term suspension.

The board’s policy 6425.3A states in part, “Assault on a School Employee or Other Adult – No student shall assault or attempt to cause physical injury or behave in such a manner that could reasonably cause physical injury to any school employee or other adult.

“A. The first violation of [this section] by a student in grades 6-12 shall result in removal to an alternative educational setting or long-term suspension from the school system for the remainder of the school year.”

There is no dispute that Ryan actually hit Mr. Klein when he swung at Bill. The only issue is whether Ryan acted in self-defense when he did so. Although Ryan alleges he was in the throes of an attack by Bill and that he threw his punch in self-defense, substantial evidence supports the conclusion that the fight between Ryan and Bill had already ended when Ryan consciously threw the punch that struck Mr. Klein.

Ryan acknowledged that he hit Bill in the face after the teachers initially broke up the fight. Ryan’s testimony was corroborated by other witnesses’ accounts.

According to the evidence, Ryan was not trying to get free from an attack or notify the proper school authorities when he used force.

The trial court properly concluded substantial evidence supported the board’s conclusion that Ryan was not acting in self-defense when he threw the punch that caused Mr. Klein to sustain injuries to his nose and “[Ryan] willfully behaved in such a manner that could reasonably cause physical injury to a school employee….”

The board evidently determined that Mr. Klein was credible and gave considerable weight to his testimony. Mr. Klein’s testimony supports a reasonable inference that the fight was over and the boys had been separated when Ryan hit him. The trial court properly considered the evidence in the record and determined that substantial evidence supported the board’s decision. Therefore, the trial court properly refused to substitute its judgment for that of the board and upheld Ryan’s long-term suspension. Under the whole record test, this court is bound by the board’s determination of Mr. Klein’s credibility and, like the trial court, this court’s judgment cannot be substituted for the board’s judgment.

There is sufficient evidence in the whole record to support the board’s decision that Ryan intended to take action which violated Policy 6425.3A, not that he acted for the purpose of violating the policy. Teachers spent about 60 seconds talking to the boys to try to get them to stop fighting. Ryan heard at least one of the teachers telling him to stop fighting. Other teachers arrived and tried to separate the boys.

The boys had been separated for approximately 20 seconds when Ryan threw the punch. There is no evidence that Ryan’s punch was an accident or reflex. Therefore, since Ryan intended to throw a punch, his action willfully violated Policy 6425.3A.

There is no requirement that the board explicitly find that a student “willfully” violated the applicable policy. Indeed, there is no requirement that the board make any findings at all. The only requirement is that the student “willfully violates the policies of conduct established by the local board of education.” G.S. § 115C-391(c). The board, by suspending Ryan for the rest of the school year, necessarily determined that he willfully violated the board policy.

The board articulated a valid reason for upholding Ryan’s long-term suspension, i.e., that Ryan was the only student charged with violating a policy mandating a long-term suspension. The board offered Ryan an alternative educational placement at Millburn, which provides courses in Science, Mathematics, English/Language Arts, and Social Studies.

However, Ryan did not submit the “Request for Alternative School Placement” form to the board. According to Policy 6425.3A, long-term suspension was mandatory if

Ryan did not choose an alternative placement. Given this mandate, school officials had no discretion in deciding whether to recommend Ryan for long-term suspension once he was charged with violating Policy 6425.3A. Therefore, the board’s decision upholding Ryan’s long-term suspension shows that the board acted in good faith, gave fair and careful consideration, and acted in accordance with the law in upholding Ryan’s long-term suspension and that the board’s decision was not arbitrary and capricious.

Even though protection of the student body is the primary goal of G.S. § 115C-391, protection of school employees is also a goal of suspension and expulsion. Since Ryan struck a school employee, his long-term suspension was appropriate under G.S. § 115C-391.

Pursuant to the N.C. Constitution, public schools must provide each student an opportunity to receive a sound, basic education.

Ryan concedes that he was charged with violating a policy that carried a mandatory long-term suspension. After Ryan’s suspension, the board offered Ryan an educational placement at Millburn as an alternative to suspension, and pursuant to Policy 6425.3A. Millburn provides courses in Science, Mathematics, English/Language Arts, and Social Studies. Ryan has not shown that such a program at the alternative school was inadequate to provide him with a sound, basic education.

Ryan argues that his right to present evidence was violated at the school-level hearing and the board-level hearing because: (1) the mother of a student witness, “James,” did not allow him to testify at the school-based hearing; and (2) the board denied Ryan’s request to subpoena James on his behalf at the board-level hearing. We disagree.

Counsel for the board interviewed James at school. When Ryan’s counsel contacted James, “[James’] mother was so upset that the prior interview had been conducted at the school without her consent that she would not allow [Ryan’s] counsel to talk with him and she did not want him to attend the [school-level] hearing.” However, Ryan fails to cite any authority in support of his argument that a private actor’s refusal to allow a witness to testify on his behalf violates his due process rights. Therefore, Ryan’s assignment of error is dismissed pursuant to N.C.R. App. P. 28(b)(6).

The board did not forbid Ryan’s attorney from speaking with James. It was James’ mother who forbade Ryan’s attorney from speaking with James.

Moreover, Ryan has not suggested that James would have provided information that was not available from Ryan’s other witnesses, and therefore has not shown that he was prejudiced by James’ absence. These facts show that the board did not violate Ryan’s due process rights by declining to subpoena James to testify on Ryan’s behalf.

While the board could have chosen to release Bill’s disciplinary record, it would have done so only at the risk of losing significant amounts of federal funding. To avoid that fate, the board could have released Bill’s discipline records to Ryan only with Bill’s consent.

There is nothing in the record showing that Bill gave his consent. Prior to the board-level hearing, Ryan requested “disciplinary records, with names redacted, for all students involved in the incident leading to [Ryan’s] long-term suspension,” contending that since the board’s decision “was both arbitrary and capricious, these records are necessary for his appeal to the Board.” The board denied Ryan’s request, but stated that the board itself would review the records “to provide the board some guidance.” Ryan did not object.

The board disclosed to Ryan that it would be considering Bill’s disciplinary records and subsequently gave Ryan an opportunity to respond. Since Ryan asked for these records and then did not object when the board considered them, Ryan cannot have suffered substantial prejudice. Therefore, his due process rights were not violated when the board considered Bill’s disciplinary records in closed session.

Two Tharrington Smith attorneys represented the school at the board-level hearing, and another Tharrington Smith attorney served as legal counsel to the board. However, Ryan made no showing of actual bias or unfair prejudice. Ryan merely alleged that his “right to an impartial hearing was violated when attorneys from Tharrington Smith LLP represented the school at the school-based hearing and also represented [the board] at the hearing before the three-member panel of the Board.” This allegation is insufficient to show a due process violation in the context of a school board hearing. Ryan’s purely speculative allegations of bias and unfairness are insufficient to establish a constitutional violation.

Affirmed.


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