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EVERETT v. MARCASE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


January 27, 1977

DONNA EVERETT et al.
v.
MICHAEL MARCASE1 et al. JAMES WATSON et al. v. MICHAEL MARCASE et al.

The opinion of the court was delivered by: VANARTSDALEN

OPINION AND ORDER

 VanArtsdalen, J.

 Within the public school system of the School District of Philadelphia (School District), a pupil may not be suspended from school in excess of five days unless precise "due process" procedures as directed by Jones v. Gillespie, 60 Pa. D. & C.2d 576 (C.P., Phila. Co. 1973), are followed. In Dunmore v. Costanzo, Civil Action No. 72-43 (E.D. Pa., filed Feb. 13, 1973), a consent decree was entered approving extensive procedures applicable to involuntary transfers of pupils from a nondisciplinary public school to a special disciplinary public school maintained by the School District. Each year within the School District a substantial number of pupils are involuntarily transferred from one nondisciplinary public school to another for disciplinary reasons, but wherein the disciplinary problems are not considered sufficiently serious so as to require transfer to a special disciplinary facility. Where the transfer is for disciplinary reasons, and the pupil is transferred to a nondisciplinary school, such transfers are known within the School District system as "lateral transfers." In the past such lateral transfers have been conducted by the School District on an informal and largely ad hoc basis, without precise internal guidelines.

 The present two consolidated class actions *fn2" were filed primarily to compel the School District to employ more detailed and precise procedures for lateral transfers. The legal basis for these suits is an allegation that the current procedures violate the plaintiff classes' fourteenth amendment rights to procedural due process.

 The School District has throughout this litigation taken the legal position that the lateral transfers require no due process procedural protections because the transfer deprives a pupil of no constitutionally cognizable property right and does not amount to punishment. In addition, the School District maintains that, assuming such a property right exists, the methods and practices employed by it in determining whether to transfer a pupil fully comply with all due process requirements of the United States Constitution, as announced by the Supreme Court. In this vein, the School District places heavy reliance upon Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975).

 Commendably, however, for the School District and its solicitor, after many conferences with counsel and the trial judge, the litigants have agreed that certain procedures may be incorporated into a consent decree to be applied to all future involuntary disciplinary transfers to nondisciplinary schools. The agreement was reached after consultation with counsel who represents the Philadelphia Federation of Teachers, Local #13, AFT, AFL-CIO, who by order of May 19, 1976 was permitted to participate in this litigation for limited purposes. The form of the consent decree presented in Civil Action No. 75-2 is approved and will be entered as a final partial resolution of the issues presented in Civil Action Nos. 75-2 and 75-459.

 Unfortunately, the parties have been unable to reach agreement as to certain issues which remain unresolved. They are:

 

1. The right of the pupil to be represented by legal counsel.

 

2. Designation of the hearing officer or tribunal and place of hearing.

 

3. Right of appeal from final decision to transfer.

 

4. Right of pupils to continue attending school pending final decision on the transfer.

 Before this court may enter any order beyond that of the consent decree, specifying lateral transfer procedures, a determination must be made that some type of due process procedures are constitutionally required in lateral transfers. I conclude that such transfers involve protected property interests of the pupils and are of sufficient significance as to warrant the shelter of due process protection, and my reasoning follows.

 In theory a transfer from one school to another within the same school district does not reduce the educational opportunities of the transferred pupil. All schools are intended to be approximately equal as to educational quality and physical facilities offered. Subject to statutory and constitutional limitations, not presently applicable, a school district may assign pupils among its various schools as it deems appropriate, and may for purely administrative purposes, assign pupils from one school to another. There is no inherent right of the pupil to attend the school of his or her choice, or the choice of the parents, within the school district.

 An administrative transfer is vastly different from a disciplinary transfer. As shown by the evidence taken during hearings, a transfer during the school year has, at least to many pupils, a serious adverse impact upon their educational progress. The terminology of a "disciplinary" transfer suggests punishment. Even though such transfers may in certain specific instances be for the good of the pupil as well as the transferring school, it nonetheless bears the stigma of punishment. The analogy between a transfer for the good of the pupil and a jail sentence for a convicted felon for "rehabilitation" is not entirely remote.

 Goss v. Lopez, supra, held that where a state establishes a free public school system, a pupil may not be suspended from school even temporarily without some form of procedural due process. In the present cases, the School District has argued that a lateral transfer, even if for disciplinary reasons, unlike a suspension, deprives a pupil of no property right. The evidence presented at the hearings, as well as common knowledge of urban school systems, refutes such argument. A suspension, under Goss, "is a serious event in the life of the suspended child." No less so is a disciplinary transfer to another school "a serious event in the life of the [transferred] child." Goss v. Lopez, supra, at 576. To transfer a pupil during a school year from a familiar school to a strange and possibly more distant school would be a terrifying experience for many children of normal sensibilities. I think it not melodramatic to suggest the genuine danger of physical harm being intentionally inflicted upon a transferred pupil who may be required to pass through different and strange neighborhoods on the way to and from the transferee school. Any disruption in a primary or secondary education, whether by suspension or involuntary transfer, is a loss of educational benefits and opportunities. Realistically, I think many if not most students would consider a short suspension a less drastic form of punishment than an involuntary transfer, especially if the transferee school was farther from home or had poorer physical or educational facilities.

 In Goss, the Supreme Court stated:

 

Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.

 419 U.S. at 576. Substitute the word "interrupted" for "denied" and the words "disciplinary transfers" for "suspension" in the above quote, and the present case appears.

  The stipulation for a consent decree most certainly goes a long way toward providing procedurally fair determinations of the need for disciplinary transfers. The consent decree may in some respects provide a greater degree of protection for the pupil than the minimum fourteenth amendment requirements. Fortunately in this litigation, all parties have attempted in good faith to work out procedures that will afford maximum protection to the school children without interfering with possibly conflicting and competing rights of teachers and school administrators, and without disruption of the school system and quality of education. This was accomplished by all parties taking into consideration the extremely complex administrative and financial realities of operating a massive urban public school system.

 As a federal district judge, I have no authority to order the School District to adopt any procedures beyond those very minimal due process rights applicable and as guaranteed by the fourteenth amendment. Therefore, in those areas where the litigants have been unable to reach agreement, I can do no more than impose the minimum standards, irrespective of whether other solutions might be preferable to all parties.

 In Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), the Supreme Court said:

 

Once it is determined that due process applies, the question remains what process is due.

 408 U.S. at 481, cited with approval in Goss v. Lopez, supra at 577. Because I consider lateral transfers as detrimental to the pupil's interests as a short term suspension, at least in terms of what might constitute appropriate due process procedures, insofar as practical the guidelines of Goss will be adhered to in this decision.

 Pupils must be given some kind of notice and afforded some kind of hearing. Goss v. Lopez, supra at 579. This the consent decree fully provides. First, there is a notice to the parents by the school principal with the right for a prompt informal hearing. The "timing and content of the notice and nature of the hearing" appear to be adequate under the proposed consent decree.

 The first unresolved issue is the right of a pupil to be represented by legal counsel. I find no practical advantage to the pupil and/or his parents having the right to be represented by an attorney at any informal hearing with the principal, nor do I understand plaintiffs' counsel to make this request. On the other hand, there should be no prohibition against a principal permitting, in his discretion, the attendance and advice of counsel at such informal hearing.

 Assuming that the formal hearing will be conducted before a fair and impartial hearing officer or tribunal, I do not think it is a necessary ingredient of due process that the pupil and/or his parents have the right to be represented by legal counsel. As stated in Goss:

 

We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel . . . . To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process.

 419 U.S. at 583. Plaintiffs' counsel contend in their briefs that attorneys may represent pupils at hearings involving transfers to remedial disciplinary schools. However, I find no such express provision in the consent decree entered in Dunmore v. Costanzo, supra. Likewise in Jones v. Gillespie, supra, no specific mention is made as to the right to counsel. In the present cases, in practice, attorneys may be permitted to represent pupils and parents, but I do not think such requirement may be mandated by this court.

 Under the proposed consent decree, there is an express provision that the parents may bring a representative of their choice to the hearing. This is clearly sufficient to comport with due process. There is no prohibition against such representative being an attorney. It would seem, therefore, that if the parents choose a lawyer to be their representative, the hearing officer would have to recognize such representation, and the representative could not be precluded merely because he or she is a lawyer. Consequently, there would seem to be no practical necessity or advantage in expressly providing that, as a matter of constitutional right, the pupil and/or parents may be represented by legal counsel.

 Presumably, plaintiffs' counsel want an express decree as to the right of counsel in order to obtain, at public expense, appointed counsel to represent indigent parents. If so, I consider this request totally unrealistic in view of the serious financial problems of the public school system of Philadelphia. Bearing in mind that the transfer of a pupil from one school to another, whether for disciplinary reasons or otherwise, is primarily an administrative problem for the school administrators who are entitled to broad discretion in such decisions -- subject only to affording the pupils to be transferred requisite due process -- I cannot conclude that the absolute right to counsel is essential.

 The next unresolved area is the designation of the hearing officer and/or hearing tribunal and place of hearing. This poses a difficult problem. The hearing officer, of course, must be fair and impartial. There is a contention by plaintiffs that if the district superintendent's office can control the designation of the hearing officer, there will be too strong a tendency to "rubber stamp" and approve the school principal's recommendation that a lateral transfer be made. There was some evidence presented during the hearings that under the present system, where final determination is made by the district superintendent or someone directly under him, the recommendation of the principal is routinely accepted unless there exist strong countervailing considerations. However, this occurs under the current informal procedure which does not provide for a full due process hearing wherein the pupil and his parents are to be accorded a full opportunity to present their views as to whether a lateral transfer is proper or justified.

 The hearing officer should not, of course, be the principal of the school who holds the first informal hearing and recommends the transfer. Likewise, it obviously should not be someone under his direct control or supervision or below him in the "chain of command." However, I see no reason to prohibit a superior of the principal, such as someone from the district superintendent's office, from being designated as the hearing officer. I am mindful that this may not be the best solution. In certain present disciplinary proceedings, the School District has employed an independent hearing officer, which plaintiffs' counsel state would be acceptable. Unfortunately, the School District contends such is impractical because of the large number of transfers which would require employing additional hearing officers. Perhaps upon adoption of the new and more formal procedures, the number of transfer recommendations will be substantially reduced, so as to make the use of an independent hearing officer entirely feasible.

 In the recent case of Hortonville Joint School District No. 1 v. Hortonville Educ. Ass'n., 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1, 44 U.S.L.W. 4864 (U.S. 1976), the Supreme Court held that a local school board could properly hear and determine disciplinary actions against teachers of that particular district who had gone on strike in violation of state law. The teachers contended that this was a violation of their rights to due process in that the disciplinary proceedings should have been held by an independent, unbiased decisionmaker. The Supreme Court reversed the decision of the Wisconsin Supreme Court which latter court had upheld the teachers' fourteenth amendment contentions. In so doing the Supreme Court also rejected the remedy fashioned by the lower courts of granting the teachers a right of de novo review and hearing before the state trial courts, since state law provided no alternative to the determination being made by the School Board.

 

Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker. Withrow v. Larkin, 421 U.S. 35, 47, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975); Federal Trade Commission v. Cement Institute, 333 U.S. 683, 700-703, 92 L. Ed. 1010, 68 S. Ct. 793 (1948). Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not "capable of judging a particular controversy fairly on the basis of its own circumstances." United States v. Morgan, 313 U.S. 409, 421, 85 L. Ed. 1429, 61 S. Ct. 999 (1941); see also FTC v. Cement Institute, supra, at 701.

 Hortonville District, supra at 4867.

 I conclude as to the hearing officer, that it shall remain the responsibility of the School District to designate a fair and impartial person or group of persons to conduct the hearing and make a determination. It is not for the federal courts to dictate the internal affairs of local governmental agencies. See Rizzo v. Goode, 423 U.S. 362, 380, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1975). The defendants shall not be precluded from designating the district superintendent or someone under the district superintendent's direct supervision, other than the principal or person recommending the transfer, as the hearing officer.

 Concerning the unresolved question of any right to appeal a final decision to transfer, there need be granted no right beyond the procedures set forth in the consent decree. This of course does not preclude any party involved from calling upon any appropriate court of competent jurisdiction to decide issues it may properly determine. The consent decree, in effect, calls for an informal hearing after notice, and a later formal hearing. To provide a third-step hearing or right of appeal would not appear to be a requirement of due process. If defendants want to provide some further review or internal right to appeal, either to the School Board or the Superintendent of Schools, it is, of course, free to do so.

 The final issue is the right of the pupil to continue attending the school from which he or she is proposed to be transferred pending final determination. The School District presently has due process proceedings for suspending a pupil. Jones v. Gillespie, supra. Nothing in the proposed consent decree will affect those procedures. Subject, therefore, to the existing rights to suspend a pupil, I can see no threat to the morale of the school by permitting the pupil to continue to attend classes pending a final determination on the transfer. Certainly, such would in many cases be less disruptive than initially transferring the pupil and then having the pupil re-transferred upon final determination by the hearing officer that the pupil should not have been transferred initially.

 In addition, it seems probable that in most cases the lateral transfer question will be determined at the informal conference before the principal. If the principal decides to make no recommendation of transfer, that will end the matter. In those situations where a transfer is recommended, many parents may consent to the transfer and waive any right to a hearing. Most likely, a hearing will be required only in those cases where there may be a factual dispute. To require the pupil to transfer to another school or to remain out of school until the facts are finally determined could cause unnecessary harm to the pupil and would be potentially disruptive to the pupil's classroom.

 A transfer prior to final hearing, where there exists no emergency situation, would appear to violate the due process prescribed in Goss type suspensions. This is particularly so, since in a true emergency such as potential danger of physical harm to other classmates, suspension procedures remain available. Consequently, no transfer shall become effective until final determination by the hearing officer that the recommendation to transfer be approved.

 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 426 F. Supp.]

 ORDER [January 27, 1977]

 AND NOW, this 27th day of January, 1977, the consent decree, appended hereto, concerning transfers of pupils within the School District of Philadelphia for disciplinary reasons to nondisciplinary schools, and referred to in the consent decree as "lateral transfers," is entered as a final judgment and order. In addition and in supplementation of said consent decree, it is DECREED as follows:

 1.The right of a pupil and/or the pupil's parents to have a representative of his, her or their own choosing at lateral transfer proceedings, shall include the right that such representative be a lawyer, attorney-at-law or legal counsel. Except as so provided, and except to the extent that the School District of Philadelphia may from time to time otherwise authorize or provide, the School District of Philadelphia shall not be required to recognize legal counsel in any lateral transfer proceedings.

 2. The School District of Philadelphia shall have the right to designate the place and personnel who shall conduct the hearings specified in the consent decree, provided no principal or other person recommending a lateral transfer, nor anyone under such principal's or other person's direct supervision shall serve as a hearing officer. The district superintendent or personnel of the district superintendent's office shall not be precluded from serving as a hearing officer if so designated by the School District of Philadelphia. The person or persons conducting such hearing shall determine the matter impartially and in accordance with the terms of the consent decree.

 3. The School District of Philadelphia may provide that the decision of the hearing officer shall be final or may provide such further right of appeal or reconsideration as it deems appropriate.

 4. This shall be entered as a final judgment, subject to this court's continuing jurisdiction to enforce, modify, or amend this DECREE and ORDER.

 BY THE COURT:

 DONALD W. VANARTSDALEN / J.

 DECREE IN PARTIAL RESOLUTION OF THE ISSUES RAISED IN EVERETT V. COSTANZO

 AND NOW, this 30th day of November, 1976 in order to partially resolve the issues presently before this Honorable Court in the case of Everett v. Costanzo, and on the condition that the Court approves and so orders, counsel for the plaintiffs and for the defendants agree that:

 1. In a hearing which took place on April 15, 19 and 20, 1976, the parties herein presented argument, testimony and evidence before this Court regarding the constitutionality of the procedures pursuant to which the School District of Philadelphia involuntarily transfers students from one non-disciplinary school to another non-disciplinary school for disciplinary reasons. This type of transfer shall hereinafter be referred to as a "lateral transfer".

 2. On April 20, 1976, this Court issued a preliminary injunction directing that the School District's transfer of Steven Durham, an intervening plaintiff herein, be voided and that he be returned to Overbrook High School, the school from which he was transferred.

 3. In order to partially resolve the issues before this Court, the parties agree that the following procedures will be implemented and followed, henceforth, before any student is laterally transferred by the School District of Philadelphia.

 A. A student may be laterally transferred only upon a specific finding that the student has committed a "serious" violation of the Code Prohibiting Serious Student Misconduct, attached hereto and incorporated herein by reference as Exhibit "A". This shall mean that there must be a specific finding by the hearing officer which this Court shall designate that the student's violation of the Code Prohibiting Serious Student Misconduct is more serious than an ordinary violation of the Code Prohibiting Serious Student Misconduct.

 B. A copy of the Code Prohibiting Serious Student Misconduct shall be distributed to all students in the School District of Philadelphia at the beginning of each school year with an explanation of its use in the lateral transfer process. Furthermore, a copy of the Code shall be posted in a prominent and easily accessible place in each school in the School District of Philadelphia.

 C. The initial evaluation as to whether or not a student shall be laterally transferred shall be made by the principal of the school which the child attends.

 D. When a lateral transfer recommendation is being considered by a principal, the school will notify the student's parents on the same day or as soon as the parents may be reached by telephone and by letter sent by regular mail, of the possible transfer and shall arrange an appointment with the parents within three days. The form of the letter shall be that of Exhibit "B" attached hereto.

 E. (1) If the parent fails to appear for the school conference or if the principal's recommendation at the conclusion of the conference is to transfer the student, the school will notify the District Office by telephone while the parents are present. In addition, the school will forward Form EH-21 to the District Office.

 (2) If the parents agree to a recommendation for transfer, a waiver of hearing form of the form in Exhibit "C", attached hereto, shall be signed by them.

 F. The District Office on the same day as the receipt of the telephone call from the school, will arrange a hearing with the hearing officer to be designated by the Court, hereinafter called "hearing officer", to be held within three school days from the day of the telephone call or as soon thereafter as the hearing may be conveniently arranged for all parties. A letter in the form of Exhibit "D", attached hereto, will be sent to the parents by certified mail.

 G. The parents shall be advised that they shall have the following rights at the hearing:

 1. They may bring their own witnesses and present their own evidence;

 2. They may bring a representative of their choice.

 3. They may compel the presence of School District employees and may question School District employees;

 4. They may examine all of the student's school records prior to the hearing;

 5.They may have the hearing tape recorded.

 6. They may request that, if a decision is made to transfer their son or daughter, the transfer be to the school closest to the sending school.

 H. If a school district employee attends the hearing, that employee has the right to be accompanied by a union representative. Said union representative may not participate in the proceedings as an advocate, may not argue substantive issues and may not cross-examine witnesses. It is understood that this limitation with respect to the union representatives' participation at such hearings shall not preclude the union representative from acting as an advisor and or consultant to the employee.

 I. The decision at the hearing will be based only on the substantial evidence presented at the hearing regarding the (incidents) of which the student and his/her parents were given notice. The hearing officer shall not be bound by the formal rules of evidence although he/she shall reasonably observe the rules regarding relevance and hearsay.

 J. If the decision of the hearing officer is to transfer the student to another school, the hearing officer shall notify the District Office which shall send a letter to the parents within six school days from the date of the hearing, following the form of Exhibit "E", which letter shall contain a statement of the reasons for the transfer and all other pertinent information pertaining to the recommended transfer, including the name of the receiving school and the date the student is to enroll. If at all possible, and if the student so desires, the student will be transferred to the closest school to the sending school.

 K. If the decision of the hearing officer is to return the student to the sending school, the hearing officer shall notify the District Office of its decision. The District Office shall notify the parents in the same manner as above, by a letter following the form of Exhibit "F" containing a statement of the reasons the student is being returned and any applicable terms or conditions.

 L. A copy of this procedure shall be disseminated to all district superintendents and school principals in the School District of Philadelphia.

 M. This consent decree does not incorporate any agreement between the parties as to who shall be the hearing officer, where the hearing shall be held, whether there shall be a single hearing or a multi-tiered hearing, or whether there shall be an appeal allowed from the decision of the hearing officer.

 N. Further, this consent decree does not incorporate any agreement between the parties regarding whether the student may be represented by counsel or whether the student shall remain in the sending school pending the final decision by the hearing officer.

 O. The parties hereto agree that this Consent Decree shall have no effect on the collective bargaining agreement between the School District and the Philadelphia Federation of Teachers. Furthermore, nothing in the collective bargaining agreement between the School District and the Philadelphia Federation of Teachers shall abridge the rights of students with respect to lateral transfers as these rights are set forth in this Consent Decree.

 MARTIN HOROWITZ Attorney for Defendants

 ELLEN JOSEPHSON STEPHEN T. GOLD Attorneys for Plaintiffs

 CODE PROHIBITING SERIOUS STUDENT MISCONDUCT PHILADELPHIA PUBLIC SCHOOLS

 JANUARY 1973

 RULE 1. DISRUPTION OF SCHOOL

 A student shall not by use of violence, force, noise, coercion, threat, intimidation, fear, passive resistance, or any other conduct intentionally cause the substantial and material disruptions or obstruction of any lawful mission, process, or function of the school.

 Neither shall he engage in such conduct with the deliberate intention of causing the substantial and material disruption or obstruction of any lawful mission, process, or function of the school if such a disruption or obstruction is reasonably certain to result.

 Neither shall he urge other students to engage in such conduct with the deliberate intention of causing the substantial and material disruption or obstruction of any lawful mission, process, or function of the school if a substantial and material disruption or obstruction is reasonably certain to result from his urging.

 RULE 2. DAMAGE, DESTRUCTION OR THEFT OF SCHOOL PROPERTY

 A student shall not intentionally cause or attempt to cause substantial damage to school property, or steal or attempt to steal school property of substantial value. Repeated damage or theft involving school property of small value also shall be considered an act of serious student misconduct.

 RULE 3. DAMAGE, DESTRUCTION OR THEFT OF PRIVATE PROPERTY

 A student shall not, either on the school grounds or during a school activity, school function, or school event off school grounds, intentionally cause or attempt to cause substantial damage to private property, or steals or attempt to steal valuable private property. Repeated damage or theft involving private property of small value also shall be considered an act of serious student misconduct.

 RULE 4. ASSAULT ON A SCHOOL EMPLOYEE

 A student shall not intentionally cause or attempt to cause physical injury or intentionally behave in such a way as could reasonably cause physical injury to any school employee.

 Self-defense against bodily harm is not to be considered an intentional act under this rule.

  EXHIBIT "A"

  RULE 5. PHYSICAL ABUSE OF A STUDENT OR OTHER PERSON NOT EMPLOYED BY THE SCHOOL

  A student shall not intentionally do or attempt to do serious bodily injury to any person

  (1) on the school grounds during and immediately before or immediately after school hours,

  (2) on the school grounds at any other time when the school is being used by a school group, or

  (3) off the school grounds at any school activity, function, or event.

  Self-defense against bodily harm is not to be considered an intentional act under this rule.

  RULE 6. WEAPONS AND DANGEROUS INSTRUMENTS

  A student shall not knowingly possess, handle, or transmit any object that can reasonably be considered a weapon

  (1) on the school grounds during and immediately before or immediately after school hours,

  (2) on the school grounds at any other time when the school is being used by a school group, or

  (3) off the school grounds at any school activity, function, or event.

  This rule does not apply to normal school supplies like pencils or compasses but does apply to any firearm, any explosive including firecrackers, any knife, and other dangerous objects of no reasonable use to the pupil at school.

  RULE 7. NARCOTICS, ALCOHOLIC BEVERAGES, AND STIMULANT DRUGS

  A student shall not knowingly possess, use, transmit, or be under the influence of any narcotic drug, hallucinogenic drug, amphetamine, barbiturate, marijuana, alcoholic beverage, or intoxicant of any kind

  (1) on the school grounds during and immediately before or immediately after school hours,

  (2) on the school grounds at any other time when the school is being used by any school group, or

  (3) off the school grounds at any school activity, function, or event.

  Use of a Word Illegible authorized by a medical prescription from a registered physician shall not be considered a violation of this rule.

  RULE 8. REPEATED SCHOOL VIOLATIONS

  A student shall not repeatedly fail to comply with directions of principals, teachers, or other authorized school personnel during any period of time when he is properly under the authority of school personnel.

  This rule should be applied with circumspection. Basically, it is aimed at these students whose conduct is consistently at odds with normal school discipline and who do not respond to guidance or minor discipline. It also may apply to the student who stubbornly refuses to carry out some legitimate direction of his teacher or of other authorized school personnel. Consideration should be given to whether a student should receive severe, lenient, or perhaps no punishment for failure to comply with directions based on reasonable opinions held in good faith that the directions were unauthorized or detrimental to some proper interest.

  RULE 9. DISRUPTIVE AND/OR OFFENSIVE USE OF LANGUAGE

  Student shall not use language in any school publication, in any meeting of students or in messages through the public address system which is profane, obscene, intentionally disruptive or offensive to other students, faculty or the community.

  Letter Given to Student on Day of Suspension

  (Date)

  Dear M:

  I regret to inform you that I am considering recommending to the district superintendent that your son/daughter be transferred to School, because of serious misbehavior in school. The specific alleged misconduct is the following:

  It is urgent, therefore, that you meet with me (or V.P.) on, at a.m., in my office (or room number), to discuss this transfer. If this time is not convenient, please contact the school tomorrow before to arrange another conference.

  Your cooperation is appreciated.

  Sincerely yours,

  (Principal)

  EXHIBIT "B"

  WAIVER OF RIGHT TO HEARING

  I have been advised that my son/daughter, is entitled to an impartial hearing to determine whether or not he/she should be transferred to the school.

  I agree to a waiver of this hearing and do so with full knowledge of my son/daughter's right to this hearing.

  (Parent or Guardian)

  Date:

  EXHIBIT "C"

  (Certified Mail)

  (Date)

  Dear M:

  A report has been submitted to this office by the principal of the School recommending the transfer of your son/daughter, to the School because of (specify misconduct of student).

  A hearing has been scheduled on at o'clock to be held at before an impartial hearing officer in order to decide whether or not your son/daughter will be transferred. You will have the following rights at the hearing:

  1. You may bring your own witnesses;

  2. You may present evidence of your own including expert medical, psychological and educational evidence as well as any other evidence which you consider to be relevant to the question of whether your son/daughter should be transferred;

  3. You may bring a representative;

  4. You have the right to compel the presence of any school district employee and to question them at the hearing;

  5. You have the right to examine, prior to the hearing, your son/daughter's school records.

  EXHIBIT "D"

  If you wish to have this hearing tape recorded, please notify this office prior to the date of the hearing. If this time is not convenient, please contact my office at (phone number) to arrange another conference.

  Your cooperation is appreciated.

  Sincerely yours,

  Hearing Officer

  (Date)

  Dear M:

  Your son/daughter has been recommended for a transfer to the School because of serious misbehavior. The specific reasons for this transfer are as follows:

  We are taking this action in order to provide your son/daughter with the opportunity to achieve a successful educational career in a new environment.

  Please accompany your son/daughter to the School on, 19, at for enrollment.

  EXHIBIT "E"

  (Date)

  Dear M:

  Your son/daughter was recommended for a transfer to another school because of allegations of serious misbehavior. The decision of the hearing officer is to allow your son/daughter to remain in his/her present school. The specific reasons and conditions relating to this decision are as follows:

  EXHIBIT "F"


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