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April 25, 1997


Appealed From No. 95-11527. Common Pleas Court of the County of Chester. Judge SHENKIN.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge (p.), Honorable Charles A. Lord, Senior Judge. Opinion BY President Judge Colins. Judge Doyle Dissents.

The opinion of the court was delivered by: Colins


FILED: April 25, 1997

Marshall Hamilton, Jr. and his parents, Marshall Hamilton and Robin Hamilton (Appellants), appeal the order of the Court of Common Pleas of Chester County (Common Pleas Court) that affirmed the decision of the Board of School Directors (Board) of the Unionville-Chadds Ford School District (District) to "permanently expel" Marshall Hamilton, Jr. (Hamilton) "as a student." Board's Decision, November 20, 1995. We reverse and remand. *fn1

Hamilton was expelled as a thirteen-year-old, eighth-grade student of the District's Charles S. Patton Middle School (Patton) for committing two serious District and Patton violations in a relatively short period of time. The first incident occurred in March or April 1995, when Hamilton sold a Sony Discman that had been stolen from another student's locker for the benefit of the thief, with the knowledge that it had been stolen. For this incident, Hamilton was suspended for ten days and placed on "probation." The second incident occurred on June 6, 1995, shortly after his return from the suspension, when Hamilton was caught with two or three marijuana cigarettes in his possession, together with regular cigarettes, a lighter, and lighter fluid.

The District Superintendent recommended that Hamilton be expelled because of his repeated "level F" suspensions. Level F is the most serious type of infraction under the Patton Discipline Code (Patton Code) and includes the two infractions committed by Hamilton. A hearing was held before the Disciplinary Committee of the Board in November 1995. The Committee issued an adjudication recommending the permanent expulsion of Hamilton because of his two infractions. The Board adopted this recommendation on November 20, 1995. The Common Pleas Court affirmed, and this appeal followed. *fn2

Appellants raise two issues. First, they argue that the Board erred when it expelled Hamilton rather than impose a ten-day suspension, which suspension is the punishment set forth in the Patton Code for level F infractions. Second, they argue, in the alternative, that conflicts between the Patton Code and the District-wide disciplinary policy (entitled "Student Rights and Responsibilities" and hereinafter referred to as the District Policy), which the Board relied upon, at least in part, to expel Hamilton, render them "void for vagueness" under the Due Process Clause of the United States Constitution.

To impose the punishment of expulsion, the Board was compelled to apply both the Patton Code and the District Policy to Hamilton's case; the Patton Code on its own does not clearly allow for expulsion for Hamilton's infractions. Competent testimony at the hearing established that the District Policy is meant to apply to all students in the District (including Patton students) and that the Patton Code applies only to Patton students.

The Patton Code lists a series of infractions from level A to level F, F being the most serious. One may obtain the next level of infraction by repeated and/or severe offenses classified in the levels below. For example, it is a level F infraction to commit "repeated and/or severe Level A, B, C, D, or E offenses." Patton Code, p. 3. The Patton Code, however, does not address repeated and/or severe level F infractions.

For each level there is an assigned punishment. For level F infractions, students "will receive temporary suspension 10 days out of school." Id. Although the Patton Code defines "Expulsion" (which definition includes permanent expulsion *fn3 ), no offense is listed as warranting this punishment. Similarly, the Patton Code refers to, though does not specifically define, "Probation," but does not indicate what punishment applies to a violation of probation.

The Board found that Hamilton's expulsion was permitted under the District Policy read in conjunction with the Patton Code. This is because the District Policy also provides for punishment for the two infractions committed by Hamilton. The punishment called for under the District Policy is "exclusion," which is defined as either a suspension of one-to-ten days or an expulsion of more than ten days, up to and including permanent expulsion. Because the Patton Code defines expulsion but does not set forth the offenses that warrant expulsion, the Board determined that the District Policy must be consulted to determine what those offenses are, particularly when the Patton Code also does not address repeated level F offenses. Either of Hamilton's infractions could result in exclusion under the District Policy. The Board therefore determined that Hamilton's repeated level F offenses permit a permanent expulsion under the District Policy.

Under Section 1318 of the Pennsylvania School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 13-1318, a school board has broad discretion to expel a student under circumstances deemed sufficient by the board, following a proper hearing. See Giles ex rel. Giles v. Brookville Area School District, 669 A.2d 1079 (Pa. Commw. 1995), petition for allowance of appeal denied, 544 Pa. 686, 679 A.2d 231 (1996). Further, Section 510 of the School Code, 24 P.S. § 5-510, provides that a school board "may adopt and enforce such reasonable rules and regulations as it may deem necessary and proper ... regarding the conduct ... of all pupils...." Notwithstanding, a school board may not act in a manner that is arbitrary or capricious. Giles.

Both the Patton Code and the District Policy were within the discretion of the Board to adopt. The difficulty is that the two policies read together conflict. The District Policy gives broad discretion for the Board to exclude a student from one day to a permanent expulsion for certain infractions. The Patton Code sets limits on the punishment for the same infractions. Thus, under the District Policy, only one of Hamilton's ...

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