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Board of Education of Smyrna School District v. E.D. and Delaware State Bd. of Education

Superior Court of Delaware

December 11, 2018


          Submitted: September 14, 2018.

          On Appeal from the Decision of the Delaware State Board of Education.

          David H. Williams, Esq., James H. McMackin, III, Esq., and Allyson Britton DiRocco, Esq., Morris James LLP, Wilmington, Delaware, Attorneys for Appellant.

          Valerie A. Dunkle, Esq., Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Appellee.


          The Honorable Andrea L. Rocanelli, J.

         This is an appeal from the decision of the Delaware State Board of Education ("DE Board of Ed") reversing the expulsion of E.D., a sophomore special education student at Smyrna High School ("Smyrna High"), which is part of the Smyrna School District ("School District"). The Board of Education of the Smyrna School District ("Smyrna School Board") sought to expel E.D. for an entire academic year (180 days). The DE Board of Ed correctly concluded that the expulsion decision of the Smyrna School Board was made in an arbitrary and capricious manner, lacked substantial evidence to support the discipline imposed, and violated E.D.'s fundamental due process rights. For the reasons set forth below, the DE Board of Ed's decision is affirmed.


         E.D. was 16 years old and received special education services. On September 19, 2017, E.D. was involved in a physical altercation with another student in a classroom at Smyrna High. School personnel attempted to intervene and separate the fighting students. When those efforts failed, the School Resource Officer ("SRO") pulled out his taser and pointed it at E.D. who was then handcuffed and placed under arrest.[1] Smyrna High was put on lockdown until additional law enforcement officers arrived and removed E.D. from the building. E.D. was charged with the misdemeanor offenses of "Resisting Arrest" and "Disorderly Conduct" but those charges were dismissed in Family Court.

         A so-called "building discipline conference" was held at Smyrna High on September 22, 2017. This was a 15-minute conference attended by E.D., his guardian who is his foster mother, and a foster care case worker. During this conference, E.D. was notified that he was facing disciplinary action and was told that a hearing would take place.

         On the same day as the building discipline conference, a manifestation determination meeting also took place. When a student receiving special education services is facing disciplinary action for alleged misconduct, a manifestation determination meeting is held to review the incident and the identified disability from the student's Individualized Education Program ("IEP"). At the conclusion of this meeting, E.D.'s IEP team determined that E.D.'s conduct was not a manifestation of his disability.

         A notice of "Disciplinary Hearing" was then mailed to E.D. who was advised with his foster mother that he had a right to be present at the Disciplinary Hearing and to bring witnesses. E.D. was also advised he had a right to legal counsel.

         The Disciplinary Hearing took place on October 12, 2017. The Hearing Officer introduced herself and explained that the burden of proof was by a preponderance of the evidence.[2] E.D was present with his foster mother and foster care case worker. The School District's Assistant Superintendent and Smyrna High's Assistant Principal were present.

         Although the hearing was transcribed, the record is confused. Documents were admitted but not clearly identified.[3] Similarly, references are made to individuals without identifying each individual's role.

         The School District's Assistant Superintendent and Smyrna High's Assistant Principal presented written reports by reading the reports aloud, including a report from Smyrna High's Principal recommending expulsion. Although the SRO is not identified on the transcript cover sheet as one of the persons present, the SRO was asked if his police report was accurate and he responded "yes, it is." Other than the SRO, the persons whose reports were read into the record were not made available for cross-examination.

         E.D.'s foster mother made a presentation in which she explained that the Family Court charges had been dropped. While acknowledging that there should be consequences for her foster son's behavior, she protested expulsion as too harsh. E.D.'s foster mother further stated that E.D. "is a good student and, besides this, he has had no other issues with the school." E.D.'s foster mother asked that E.D.'s relative youth and brain development be taken into account. She pleaded that E.D. be given a second chance. E.D. apologized.

         The Hearing Officer issued a report ("Report") dated October 13, 2017 recommending the expulsion of E.D. for violations of the Smyrna High School Student Code of Conduct ("Code of Conduct") "by fighting, behaving in a disorderly manner, and resisting arrest." E.D.'s foster mother was advised by letter dated October 13, 2017 that the Smyrna School Board "will sit in session on Wednesday, October 18, 2017 at approximately 7:45 p.m. in the Smyrna School District (John Basset Moore Intermediate School) to hear the results of the Hearing Officer for [E.D.] and to inform you of your child's status in the Smyrna School District." E.D. and his foster mother were "invited to attend" but not required to attend.

         Based on the record presented to this Court, it seems that the hearing before the Smyrna School Board was merely a review of the proceedings before the Hearing Officer. The record does not include any explanation of the standard of review, only that the Smyrna School Board "heard the results of the student hearing." Smyrna School Board issued a letter dated October 23, 2017 informing E.D.'s foster mother that E.D. was expelled "for 180 days with educational services to be determined by the IEP team." E.D.'s foster mother was not advised how to arrange for alternate education for E.D. and E.D.'s foster mother was further informed that "[i]n Delaware, no expelled student is permitted to enroll in another public or charter school for the duration of the expulsion period."

         E.D.'s foster mother filed an appeal with the DE Board of Ed. After a review of the entire record, the DE Board of Ed voted to reverse the expulsion, finding the decision of the Smyrna School Board was arbitrary and capricious, not supported by substantial evidence, and in violation of the Department of Education due process requirements.[4] The ...

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