Submitted: September 14, 2018.
Appeal from the Decision of the Delaware State Board of
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.
Honorable Andrea L. Rocanelli, J.
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
AND PROCEDURAL BACKGROUND
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. 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
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.
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.
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
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. 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
the hearing was transcribed, the record is confused.
Documents were admitted but not clearly
identified. Similarly, references are made to
individuals without identifying each individual's role.
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.
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.
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.
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."
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. The ...