Northwest Education Law Blog : Northwest Education Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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Doe v. Mercer Island Sch. Dist., 288 F. App’x 426 (9th Cir. 2008)

A student challenged his emergency expulsion on procedural and substantive due process grounds in the Western District of Washington. Plaintiff also sought an expungement of the records related to his expulsion that were kept by the school district. Prior to the expulsion, a representative of the school district had met with the student and his mother and gave them oral notice of the expulsion. Later that evening, the superintendent met with the student and his mother for several hours to discuss the incident and the mother’s concerns. The superintendent testified that she did not make the decision to expel the student until near the end of the evening meeting.

On these grounds, the Ninth Circuit upheld the summary judgment dismissal of plaintiff’s claims because he was provided with adequate notice and a hearing regarding the expulsion. The appellate court also upheld the summary dismissal of plaintiff’s substantive due process claims on the grounds that the superintendent made the decision to expel the student based on her knowledge of the student’s assault on his sisters and her concern that the student might be threat to the school. Because courts view with deference a school’s decision in connection with the safety of its students, the Ninth Circuit found that the expulsion did not violate the student’s substantive due process rights.

Finally, the Ninth Circuit affirmed the District Court’s denial of the student’s request to expunge his records of the incident. The school district maintained the records in an internal, confidential file. The student did not allege, and there was no evidence to indicate, that the internal file did not contain an accurate, contemporaneous record of the expulsion and the student’s subsequent reinstatement. The school district also represented that the internal file would be shredded upon the student’s graduation from high school.
 

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Bellevue Sch. Dist. v. E.S., 199 P.3d 1010 (Wash. App. Div. I 2009)

A Washington appeals court has determined that children’s liberty and privacy interests and their right to education are put in jeopardy at initial truancy hearings, and that children are unable to defend these rights themselves. The court held that constitutional due process requires that children be provided with counsel at all stages of a truancy petition.

Under Washington law, if a child reaches a certain number of unexcused absences, the school district is required to file a truancy petition seeking court intervention. A hearing is held to consider the petition; children over 8 years old can be compelled to attend. Until this decision was issued, the court could hold the hearing without either party being represented by an attorney, and without a guardian ad litem for the child. If the truancy allegations are proven, the court can then become more involved in the matter and can order the child to attend school, change schools, appear before a community truancy board, or submit to drug and alcohol testing. If the child fails to abide by the terms of the order, the court may hold the child in contempt of court. It was not until a contempt of court proceeding took place that a child was provided with legal representation.

In this case, the court noted that truancy hearings are the only type of proceeding, civil or criminal, in which a juvenile respondent is not provided with an attorney. It then reasoned that the law presumes that children are neither independent nor capable, and that children cannot be expected to exercise proper judgment in a truancy proceeding that can result in court-ordered violation of bodily privacy through drug or alcohol testing, or the potential deprivation of liberty.

In addition to the privacy and liberty rights that can be impacted at a truancy hearing, the court noted that, somewhat ironically, a child’s right to a free public education is jeopardized because the child could be ordered to transfer to another school or enrolled in an alternative education program. Such an order has the potential to disrupt the child’s education by introducing or exacerbating stigma, uncertainty, and instability, or by placing the child where needed services are not available.

The court concluded: “The initial truancy hearing provides no procedural safeguards to protect the child’s rights, and it is undeniable that the child cannot be expected to protect them herself. Errors in the proceedings are therefore likely, and the risks to the child’s liberty interests are great. Representation is required to ensure that the child understands her rights and the consequences of a truancy finding, that the district is held to its statutory duties and standard of proof, and to ensure that the child can explain her circumstances and respond to any suggested changes in her education program.”