Parent Rights and Zero Tolerance

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Parent's Rights
"Parents have a right to raise their children, and children have a right to be safe. These rights are not mutually exclusive. We do not have to choose just one or the other. Both are necessary and both are possible. To those who say that if we err, we should err on the side of children, I say, why should we err at all? Our laws should enable and encourage parents to fulfill their awesome responsibility to raise their children to the best of their ability."

- Douglas Lamborn

State Representative, District 20, El Paso County

PARENTAL RIGHTS IN THE PUBLIC SCHOOL SYSTEM

What does Lewis-Palmer's "one strike and you're out" disciplinary policy have to do with parental rights?

Answer: EVERYTHING!

The policy was instituted because of parental rights, and there are strong reasons why it should be revoked because of parental rights.

In fact, all public school disciplinary policies are, or at least should be, crafted to achieve a balance between seemingly-opposing "rights." This is no different whatsoever from the situation that exists in society as a whole, as expressed in the old saying that the right of free speech doesn't mean you can yell "fire" in a crowded theater. To say it another way, "your freedom to swing your arms ends where my nose begins!" Rights are not absolute - they inevitably involve tradeoffs. Public schools generally recognize this and attempt to achieve a reasonable balance in their policies.

How well does the LP "one strike and you're out" policy achieve this reasonable balance? That depends on the "rights" which are being balanced. When parents send their kids to public schools, they expect that their children will

1) be educated in a safe environment conducive to learning,

2) receive an education which will give them the opportunity to become productive members of society and to attend college if they choose to do so, and

3) not be indoctrinated with specific religious or moral values, since these may be at variance with what is being taught at home.

Before examining the effect of the "one strike and you're out" policy on these three basic parental "rights", it is necessary to have a clear picture of just what this policy is.

JUST WHAT IS THE "ONE STRIKE AND YOU'RE OUT" POLICY?

Actually, "one strike and you're out" is not a written Lewis-Palmer policy at all, but rather an approach which has been used by the school district as an unwritten extension of its so-called "zero tolerance" disciplinary policy for alcohol or drug offenses. "Zero tolerance" was put into effect in 1995, apparently in response to the frustration of school principals who were concerned that certain students were not getting the message, even after multiple suspensions, that alcohol was not to be tolerated in the school or at school events. A better-defined and stricter policy was needed, and as a result, the current "zero tolerance" policy was adopted by the Board of Education.

The "zero tolerance" policy does not call for mandatory expulsion from the school for alcohol- related offenses, and in fact is worded in such a way as to lead a student or parent to believe that discretion may be used in setting the level of punishment to match the severity of the offense. It is important to realize, however, that it is being applied in a totally inflexible way which admits of no discretion whatsoever. The reason for this is unclear and can only be given by the Lewis-Palmer Board of Education.

For the benefit of unwary students and parents, the "one strike and you're out" policy for alcohol can be clarified as follows:

1) A student who possesses or consumes alcohol is simply expelled from the school on the first offense.

2) No consideration is given to the amount of alcohol consumed. A student who falls down drunk is expelled, and so is a student who has a single sip.

3) No consideration is given to the student's prior disciplinary record. Years of exemplary behavior are absolutely ignored.

4) Academic credit for the expelled student's coursework for the entire semester is nullified even if the infraction occurs near the end of the semester.

5) The expulsion is permanently noted on the student's transcript. School district policy does not provide a mechanism whereby the expulsion can be expunged from the student's record by any amount of upright behavior or community service.

6) No distinction is made between students who provide alcohol and students who have the alcohol provided to them. If a senior provides the alcoholic beverage and pressures a freshman to take a sip, both are expelled equally.

7) On school-related trips involving remote lodging (e.g., a motel), the policy is enforced 24 hours a day even if the lodging is paid for by parents and the school- related activities are over.

8) No consideration is given to whether the school arranged for enough chaperones on a school-related trip, or notified parents in advance that few or no chaperones would be present.

9) No consideration is given if a student comes forward and voluntarily confesses. A student who takes his or her chances on denying involvement, but ends up getting caught, will be expelled along with a student who confesses.

Clearly, the current policy is very strict. It imposes the most severe punishment the school has available for even the most minor of alcohol-related offenses.

In fact, there is concern in the Lewis-Palmer school district that the policy was formulated by a relatively small group which did not solicit widespread community opinion, and which did not thoroughly consider the negative effects of such a stringent policy. The High School Accountability Advisory Committee listed as one of its goals for the 1998-1999 school year to "research factors and community input in developing the current zero tolerance policy in District 38." Unfortunately, as explained below, the Accountability Committee is currently restrained by the Board of Education from pursuing this goal.

THE EFFECT OF "ONE STRIKE AND YOU'RE OUT" ON PARENTAL RIGHTS

The effect of the "one strike and you're out" policy on the parental rights listed above can be examined one by one:

1) The right to a safe environment conducive to learning:

The "one strike and you're out" approach arose from a desire to promote for students a safe environment conducive to learning, something that all parents want without question. Not tolerating alcohol (and drug) use is a key aspect of a positive school environment, and most parents want any alcohol use at all to be viewed as a serious problem requiring immediate and forceful attention. The question to be answered is whether promoting a safe environment conducive to learning requires or justifies always applying the school's most severe punishment, no matter what.

2) The right to an education which will give kids the opportunity to become productive members of society and to attend college if they choose to do so:

This right is the motivation, in the state law (CRS 22-33-201), for the statement that "expulsion should be the last step taken after several attempts to deal with a student who has discipline problems." If a public school expels a student unnecessarily, it neglects its responsibility to provide the education which the parents have been legally obliged to pay for, and the permanent "black mark" of an expulsion may adversely affect the student's future. For these reasons, expulsion is to be used, according to state law and common sense, as a last-resort necessity in order to remove dangerous or habitually disruptive students from school. Schools cannot remove a student for behavior just because it may eventually, if left unchecked, lead to dangerous behavior, nor can they remove a student as a "punishment" intended to serve as an example to other students.

3) The right to not be indoctrinated with specific religious or moral values, since these may be at variance with what is being taught at home:

The effect that the "one strike and you're out" approach has on this basic parental right is subtle and insidious. Disciplinary actions, whether issued by schools or parents, teach kids the relative importance of various moral values. Parents have the primary responsibility and right to teach their kids values, tailoring a particular punishment for a particular offense to a particular son or daughter, thereby fixing the problem while doing the least harm. An exaggerated punishment, however, stemming from an inflexible policy, can do more harm than good. When a kid with no prior discipline problems is expelled after voluntarily confessing to one minor mistake, years of parental training in the importance of such virtues as honesty, respect for authority, courage, compassion, fairness, and common sense are undermined by a rigid, single-issue mentality.

Clearly, the school should impose a disciplinary action for unacceptable behavior. But in cases which do not involve dangerous or habitually disruptive behavior, the school should not proceed directly to the last resort, expulsion, without first attempting to work with the parents.

AN ALTERNATIVE FIRST-OFFENSE DISCIPLINE POLICY

Before deciding to revise the "zero tolerance" policy, it is essential to consider what an alternative policy might be, and to examine it in light of parents rights and how it may help or hurt the Lewis- Palmer school disctrict. An alternative first-offense policy for alcohol might include the following elements:

(1) a suspension of up to 5 days

(2) a mandatory parent/principal conference

(3) community service or other "consequences" which are beneficial to the student and others

(4) counseling programs if necessary

(5) expulsion may be recommended by the principal for extreme (dangerous) cases

The parent/principal conference is a key element in that it provides an opportunity for the parents and the student to be made aware, in no uncertain terms, what the consequences of a second offense will be. But more importantly, it gives the parents, who may have found out about the behavior after the school did, at least one chance prior to expulsion to work with the school to prevent a recurrence.

This is a strict policy which promotes a safe environment conducive to learning while also promoting positive school-parent relationships. It gives the desired message to kids while preserving the parents' primary role as disciplinarians of their own children.

THE BOTTOM LINE: DO WE NEED "ONE STRIKE AND YOU'RE OUT"?

The negatives of the "one strike and you're out" policy are real and easily identifiable.

1) Students have been and continue to be unnecessarily expelled. They are deprived of the education that the public school system was designed to provide them. They receive a permanent "black mark" on their record, which no amount of upright behavior or penitence can ever erase, and which may negatively effect their choices and success in the future.

2) Kids who receive an unreasonable and permanent punishment may develop bitter feelings and a loss of respect for authority. Ironically, expulsion hurts a conscientious kid much more than one who really doesn't want to be in school anyway.

3) Parents who perceive that their son or daughter has received an unreasonable and permanent punishment experience a sense of betrayal and find themselves in an adversarial relationship with the school district they once energetically supported. The loss of parental support has a detrimental effect on the school district.

4) Parents are deprived of their right to be the primary disciplinary force in their childrens' lives. Their ability to issue an appropriate punishment for a particular child is superseded by the school system's "one size fits all" approach.

5) Since kids know their "punishment" will be the same whether they lie or tell the truth about consuming alcohol, in effect they are encouraged to lie when they are questioned about it.

The positive side of the "one strike and you're out" policy is elusive and theoretical. There simply is no evidence that a "one strike" policy produces a better school environment than a "two strike" policy, with the latter having the tremendous advantage that it keeps parents in the loop.

If you add it up, the "one strike and you're out" policy is hurting district 38! This extreme and inflexible policy is not necessary, does not achieve a reasonable balance of parental rights, and does considerable harm while producing no tangible good. This policy "throws the baby out with the bath water."

It is time for the school district to admit that, although the policy was conceived with good intentions in mind, it needs to be reviewed and revised as soon as possible.

WHAT PARENTS CAN DO:

The "zero tolerance" policy is, by its own terms, overdue for review. Unfortunately, the Board of Education has chosen to delay this review while its lawyers attempt to overturn, through an appeal process of indeterminate length, a judge's ruling which, in essence, declares the "one strike and you're out" approach a violation of state law. The Board has dictated that, while their legal proceeding is in process, district employees may not discuss the issue. The school district's Accountability Advisory Committees have also been silenced.

Meanwhile, kids continue to be unnecessarily expelled, even though there is a high likelihood that either the appeal process will eventually fail, or the "one strike and you're out" approach will be scrapped when the "zero tolerance" policy is finally reviewed.

Meanwhile, taxpayer funds are going to lawyers instead of teachers, whether the taxpayers agree with the "one strike and you're out" policy or not. The Board of Education has simply presumed that the district taxpayers want their money spent in this way.

Isn't this issue best resolved in the court of common sense, not in a court of law? If you believe the Board of Education is acting unwisely, contact them and urge them to stop the legal proceedings and turn this issue back to the community where it belongs. The Board, which is elected to represent the community, will be eager to receive your input.

District 38 Expulsions Drag On (10/1/1998 Tribune Letter)

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Remember last year when the district 38 School Board expelled the kids that came forward on their own and turned themselves in for having a taste of alcohol in a motel room in Greeley? These kids had never gotten in trouble before. They turned themselves in expecting a 3-day suspension but instead got the academic equivalent of capital punishment (i.e., expulsion). They were expelled retroactively to the beginning of the semester. That meant they lost all credit for the semester, the seniors missed their prom and it looked like the seniors would also not graduate with their class. They all had a permanent black mark on their records.

We, the parents of 4 of the kids affected, exhausted the appeal process within the district asking for some punishment short of expulsion. It was to no avail. The School Board told us if we weren't happy with their decision that we had the right to seek judicial review. Several of the parents did. Specifically, we asked Judge Toth to issue an injunction in the short term, so that damage to the kids could be abated pending a final ruling (by Judge Toth) regarding the legality of the School Boards decision.

While the Judge made it clear that he did not condone drinking by minors, his preliminary opinion was that the School Board had failed to produce "findings" that justified the expulsions. He asked the School Board to produce findings that supported their contention that the expulsions were justified under the law. Judge Toth also ordered both the School Board and us (the parents) to enlist the services of a professional mediator and to attempt to reach a settlement. Finally, Judge Toth issued a temporary injunction ordering that the kids return to school and that the expulsions be undone pending either mediation or his final ruling.

The next day the School Board invited all of the students that they expelled back to school (not just the ones that the court ordered back). The day after that, the School Board announced it planned to appeal the temporary injunction that ordered 5 of the 8 kids back. (So it welcomed back those that didn't challenge them in court but is trying to re-expell those that challenged them.)

Mediation finally came on 9/24. We were hopeful that this could be resolved in some way that would be good for the district and for our kids. Our hard requirement going into mediation was that the expulsions had to be reversed. Our compromise was that we would agree to a 5-day suspension (already served since they already missed 5 weeks of school). We were asking that the policy regarding alcohol be revised or that at least implementation guidelines be developed that would help to avoid this type of situation in the future. We were willing to forego ever suing for damages (other than attorney's fees). We are not currently suing for damages. Lastly, we were willing to keep a low profile regarding the media/press.

For us, everything except the permanent reversal of the expulsions was negotiable. We all took off work and were prepared to stay as long as it took to reach an acceptable resolution. Unfortunately, both for the District and us, those representing the School District did not come with the same objective. Mediation was over very quickly.

Continuing this battle is costing the school district and us a lot of money. The School Board has two Denver attorneys fighting this. Based on what our bills total to date, we suspect the school district has already spent approximately $30,000 (as of 9/98). That's a lot of textbooks. In addition, if they take their appeals all the way to the State Supreme Court (as we believe they will), it is likely to cost the district in the range of $150,000. That's several new teachers.

We wanted to talk and still do. We want to reach an acceptable arrangement. We don't believe this battle is in the best interest of the District. We feel the School Board should at least get a second legal opinion regarding the likelihood they will eventually prevail. We believe the current school attorneys are less than objective on this matter. This doesn't have to be a win-lose proposition.

Sincerely,

The Expelled Parents

High School Accountability Committee Muzzled by School Board

Wednesday night (10/29/98) the High School Accountability Committee (BAC) was told that they could not continue researching Zero Tolerance related school policies and practices. Back in the May 98 meeting they were told by Board Member Robert Manning that while the board was not going to consider changing the Zero Tolerance Policy for alcohol until after the court challenge was completed, the BAC could set a building goal of doing research and some of the groundwork to facilitate the revision process which would occur at a later date. Towards that end, committee member Chuck Piechota had drafted a proposed survey questionnaire to gather data on other districts, and Mr. Piechota had also made copies of relevant Colorado Statutes and had planned to present them at the meeting.

The Administration told the BAC that essentially nothing could be done by the committee in this regard until after the court challenge was complete. (At this point it is expected to be 1-2 years before this is out of the courts.) When asked why or how gathering data on other schools' policies could impact the court case, Mr. Manning did not have an answer. The committee was told that this action was being taken on the advice of the SB's counsel. But apparently no one on the Board has asked the counsel to explain exactly how a survey of other districts' discipline policies could impact the court action.

When asked if the BAC was an instrument of the Board or an instrument of the parents, Mr. Manning and the Principal did not have an answer. However, at previous meetings (September, 98) this was discussed, and at that time Keith Jacobus was understood to say that the purpose of the Accountability Committees/Process was to provide a means for parents and members of the district to hold the school district accountable.

The bottom line message seems to be this: the Accountability Committees can do anything they want as long as it agrees with what the Administration and the School Board want. The overwhelming majority of the committee seemed to be upset with this strong-arm tactic by the Administration.

Since this meeting, we have surveyed all of the major school disctricts in the state and we have found that District 38 is the only district in the state that has a mandatory expulsion policy for first time alcohol related discipline problems. This explains why they wanted to squelch the survey effort.

The other important implication of this action by the Board is that it undermines the legitimacy of the accountability committees representing the will of the community.

Dissenters need not apply!

Appellate Court Uphold's Judge Toth's Temporary Injunction!

We received word on Thursday the 11th of March that the Appellate Court upheld the injunction Judge Toth issued last May which put our kids back in school. There were three judges that reviewed the case and they unanimously supported Judge Toth in his issuance of the temporary injunction. What is also interesting is the desicion by the Appellate Court not to publish their decision. This probably means that they do not feel that the decision is significant from a case law perspective. To us this is important because it means that even if the School Board were to appeal the Appellate decision to the State Supreme Court, it is unlikely that the State Supreme Court would agree to hear the appeal.

A requirement that must be met for an injunction to be legally founded is that the plaintiffs (the parents) must in the Judge's opinion have a strong enough argument or case that he feels they may prevail in court when the issue gets a complete and formal review. The Appellate Court (three judges) unanimously agreed with Judge Toth's preliminary judgment in this regard.

We also believe that Judge Toth has purposely delayed rendering a final decision on our case because he was awaiting the Appellate Court's decision on his issuance of the injunction. We hope we will get his final decision very soon now.

The fact that the Appellate Court has upheld Judge Toth's preliminary decision (the injunction) should convince even the school board that appealing his final decision (which should be in our favor) will be futile. We will see. To date, very few of their decisions have seem to contain logic and reason. I am sure their attorney is willing to do what ever it takes to protect his pride. Its making him a great living! Their attorney should have advised them last April that the expulsions were legally unfounded, but I believe his pride clouded his judgment then as well.

The School Board's Desperate Measures to Thwart Justice!!!

The school board has filed a motion in December of 1998 for Judge Toth to excuse himself from our case because one of Doctor Winan's patients is Judge Toth's mother. Their argument is that this constitutes a conflict of interest for Judge Toth. Cut me some slack!

Their real agenda is and always has been to delay and continually increase the cost of this judicial action to make it financially prohibitive for us. We have already spent $7100 (as of January, 98) and this latest action on their part will run up the cost another $1500 or more and could delay a decision at least 2 months! (As of May, 99 it looks like it will cause at least a 7 month delay!!!)

The School Board knows they cannot win their case on its merits so they are pulling any legal maneuver they can to delay the inevitable and/or make us cry financial uncle. To further prove the point, what was the purpose of appealing the temporary injunction last May? That appeal has minimal relevance on the outcome of this case. It only served to save face for bruised egos and run up our legal bill.

Every parent in this district has a right to seek judicial review of the decisions of this nature made by this Board of Education. I believe the School Board is confused. I believe, they think that this is the Baghdad Public School System.

Petition For Declaratory Judgement
DISTRICT COURT, EL PASO COUNTY, STATE OF COLORADO
Case No.

PETITION FOR DECLARATORY JUDGMENT

CHARLES PIECHOTA AND NANCY PIECHOTA, ROBERT E. WINANS AND LAURA LYNETTE WINANS, ROBERT QUINN MARRS, SR. AND ANDREA MARRS, WILLIAM NESTLERODE AND STEPHANIE NESTLERODE and CHRISTOPHER KEMP AND STEPHANIE KEMP,

Plaintiffs,

v.

SCHOOL DISTRICT 38 BOARD OF EDUCATION,

Defendants.

COMES NOW the Plaintiffs by their attorney, Kelly A-R McCurley, and petitions this court for a declaratory ruling on a School District 38 policy and as grounds therefore states as follows:

JURISDICTION AND VENUE

1. All Plaintiffs to this action are residents of El Paso County. All Plaintiffs have or have had students in attendance in School District 38.

2. The Defendant is located within El Paso County.

3. Jurisdiction and venue is proper in the County of El Paso.

CLAIM FOR DECLARATORY RELIEF

4. Plaintiffs incorporate paragraphs 1 and 2 by reference as more fully incorporated herein.

5. Pursuant to C.R.S. 22-32-109 (w) a school board is to

To adopt a written conduct and discipline code in accordance with section 22-32-110(2), not inconsistent with law, which relates to the study, discipline, conduct, safety, and welfare of all pupils, or any classification of pupils, enrolled in the public schools of the school district. The conduct and discipline code shall include written procedures, not inconsistent with article 33 of this title, for the suspension and expulsion of, or denial of admission to, a pupil, which procedures shall afford due process of law to pupils, parents, and school personnel. Copies of such conduct and discipline code shall be distributed once to each student in elementary, middle, junior high, and high school and once to each new student in a school district and shall be posted in each public school of the school district. Any significant change in the conduct and discipline code shall be distributed to each student and posted in each public school of the district.

6. Pursuant to this provision, the Defendant created policy JICH, Drug and Alcohol Possession/Use by Students. A copy of the policy is attached hereto as Exhibit A.

7. The policy specifically provides that "(i)t shall be a violation of Board policy and considered to be behavior which is detrimental to the welfare, safety or morals of other students or school personnel for any student to possess, use, sell, distribute or procure or to be under the influence of alcohol, drugs or other controlled substances. The unlawful possession or use of alcohol or controlled substances is wrong and harmful to students."

8. The policy goes on to state that "(s)tudents violating this policy shall be suspended and recommended for expulsion from school and referred for prosecution for the possession, use, sale or distribution of drugs, alcohol or other controlled substances". Under Defendant's "zero tolerance" policy, expulsion is mandatory.

9. This policy is in contradiction to C.R.S. 22-33-106, Grounds for suspension, expulsion and denial of admission.

10. The use or possession of alcohol or drugs is not included among the infractions for which expulsion is mandatory. See C.R.S. 22-33-106(1)(c.5) and (d). Thus, in creating a policy under which the use or possession of drugs and/or alcohol is mandatory expulsion, the Defendant is creating legislation which is not within its powers under C.R.S. 22-32-101, et seq, or 22-33-101, et seq and which is in violation of "expressio unius est exclusio alterius" (inclusion of these express concepts must necessarily imply exclusion of any other concepts).

11. Moreover, Defendants have also created a policy which has judged the effect of a students action and its consequence in advance of its occurrence and without regard to the facts. More specifically, by determining that the use or possession of drugs or alcohol is detrimental to the welfare or safety of other students prior to the conduct occurring, disciplinary code JICH precludes the exercise of discretion in deciding whether the act was detrimental to the student, other students or school personnel. In addition, disciplinary code JICH precludes weighing the comparative seriousness of the act and precludes consideration of mitigating circumstances. In essence a student is not genuinely given due process even though he or she may be provided with the appropriate administrative hearings.

12. Moreover, it would appear that C.R.S. 22-33-106 (1)(c) was enacted so that the administrative body involved in determining whether a student's behavior was detrimental to the welfare or safety of other students or school personnel could establish a reasonable nexus between the student's behavior at the time of its occurrence and the harm to the offending student, another student or a school official.

13. Upon information and belief, Defendant has used this policy to expel over 60 (sixty) students in approximately four years. In some cases, expulsion occurred when a student took a single "sip" of alcohol.

14. Under Rule 57, C.R.C.P., declaratory relief on these issues is proper as the Court is vested with the authority to determine that policy complained of is improper in that it is in fact legislation by a body not authorized to legislate such a matter. In addition, the policy complained of does not permit an administrative body charged with the responsibility of evaluating a student's improper behavior to determine if that behavior was in fact detrimental to another student or to school personnel.

WHEREFORE, Plaintiffs respectfully request that the Court enter a declaratory ruling invalidating Defendant's policy JICH and for such other relief as is proper.

Respectfully submitted this _____ day of October, 1999.

LAW OFFICES OF KELLY A-R MCCURLEY

By:

Kelly A-R McCurley, #17958

Attorney for Plaintiffs

325 Second Street,

P.O. Box 1586

Monument, Colorado 80132-1586

(719)488-2425

Our Personal Battle Is Over

January 2001 - Well it seemed to take the Appellate Court a long time to review our case and when they did, I don't think they really did. They affirmed the lower court decision with very little discussion. They stated that most of our arguments were not within their jurisdiction to consider. They didn't say why. They didn't speak to any of the case law we cited. After reading it I came away with two impressions. First, it didn't matter what we said they were determined to rule for the school board regardless. The second is that they did not read our arguments closely or consider them seriously. The case law that states that it is an abuse of discretion for an administrative agency to rule in a manner that is not consistent with the law was not even mentioned in their decision. This was key to our case. If they had said it wasn't valid or applicable for this reason, I would have felt much better but they did not say anything. So either they didn't even read our arguments or it didn't matter what we said, they had made up their minds ahead of time. They may have bought the school board's argument that many of our arguments could not be considered because they dealt with the policy and thus were beyond the court's jurisdiction as a policy could only be challenged via a declaratory judgment action in the original trial court. We didn't feel that was necessary because the policy as written does not say expulsion is mandatory, it does not say to ignore circumstances or the severity of the offense. These are products of the Board's implementation of the policy, products of their discretion. These things are black and white. They had the policy they could have read it for themselves but apparently didn't. They were not impartial in this case in my opinion. It seems like they ruled on this based on the politics of the case, not the law.

I guess I was naive to expect true a fair hearing. This has been my only experience with the courts. I hope it is my last. It makes me pessimistic about others chances to prevail against tyrannical school boards.

In retrospect, I wish we had filed a declaratory judgment action in the trial court. Perhaps that would have made a difference. Perhaps then our most important arguments would have been heard.

Another mistake may have been the grouping of our cases together as it is obvious that they didn't try the students individually. For example, the court made the point of stating that the evidence of detriment to others was the fact that the sole chaperone's attention was diverted from the other students to attend to ours. Well if they had read our arguments, we made it crystal clear that two of the student's involvement in this fiasco wasn't even known until several days after the band trip. So it is completely nonsensical that the chaperone diverted attention to them. If that was true it was true for every kid on that trip! They all should be expelled!

The decision is a joke and the justices should be ashamed. But the good news is, it is over. I hope our school district reads our arguments and takes them seriously even if the court didn't. I hope they now revise the policy to avoid this type of situation in the future.

I am glad it is over though and that my kids are out of the district and that they can no longer hurt them.

More...

Lessons Learned
The following are some Lessons Learned (the hard way) that may be helpful to others that find themselves at the mercy of an unforgiving Lewis-Palmer School Board:
One of the key points that parents need to know is that the law stipulates you have a right to an appeal process. But you must exercise that right in a certain order and within prescribed time limits. If you don't exercise your rights within these time limits, you forfeit your rights!

Initially, you will be notified in writing by the district that the principal has recommended expulsion. You have 5 calendar days to request your first appeal.

The first step at Lewis-Palmer is to appeal to the superintendent or their designee (hearing officer). Bring your own tape recorder to tape the meeting. The School District conveniently does a very poor job of recording what transpires at these meetings. They will make a copy of their tape available to you, but very little of it will be audible, based on our collective experience. Document and distribute your key arguments to the hearing officer at the meeting. Make sure they are clearly dated and titled as to the meeting they pertain to. Realize that all these materials may be entered as evidence in any subsequent judicial proceeding so make sure you do a very good job. Make sure there is no question as to what you told who and when your told them.

Next the superintendent will notify you that he has upheld the hearing officer's (and the principal's) recommendation of expulsion. Now you have 5 calendar days to request an appeal to the Board of Education. The same suggestions as above apply, bring your own tape recorder, document your arguments and distribute them to the board members. If you can afford an attorney, it is recommended.

Don't be surprised if the School District's attorney is very rude, pompous and obnoxious. He is trying to intimidate you, and make you think you don't have a case. If you digest the information in this web site and your situation is similar to ours, you can probably put this hired gun (their attorney) in his place. Also, at Lewis-Palmer the Board sits on an elevated platform and looks down on you. This can also be intimidating but remember these folks are regular people. They are no better or smarter than you. That is probably why they need the elevated platform (smile)....If it helps stand up when you talk to them and move around a little, it helps to alleviate nervousness and It puts you more at their eye level.

(With respect to the school district's appeal process, do not get your hopes up. Right now the SB and school administrators use absolutely no judgment or common sense. If your child does not deserve expulsion (per the state law), you are not likely to get a meaningful hearing on the subject until you reach the last step in the process which unfortunately is the review by a District Court Judge. We do have a new Superintendent who has earned a reputation over the years of being a fair and reasonable man; however, he works for the School Board and he is not likely to buck the direction of the board. This direction appears to be, do not exercise any judgment, discretion or independent thought. Administrate by the numbers.)

After the School Board upholds the Superintendent's expulsion decision, the last step in the appeal process is judicial review. You need to notify the School District in writing within 5 calendar days of your receipt of "the Board's unanimous decision to uphold the decision of the superintendent" of you intend to seek judicial review of their decision . Use certified return-receipt-requested mail to deliver this notification of intent (Refer to CRS 22-33-108 for details). At this point, you should seriously consider getting an attorney. Successfully navigating the judicial hurdles and gates without an attorney is doubtful at best. Attorneys charge approximately $100 to $300/hour depending on a number of factors. As of the end of September, we (5 going to 4 families) have collectively spent close to $5000 (as of 9/98). If the School Board exercises every appeal option they have, it may cost us $10,000 to $15,000 before we are done. So it is not cheap. If you just have to take your case to the District Court level your cost is likely to be in the range of $2000 to $4000. Recovering your attorney's fees is possible but not common.

If you have a situation similar to ours you may also have grounds to file suit for damages (actual and punitive). We are not suing for damages (other than attorney fees) at this point, but some of us may consider that at a later point if the School Board continues to be unreasonable and continues to make this painful and costly for our families. The important thing to know (in Colorado) is that within 180 calendar days of the initial disciplinary action, you need to notify the school board that you wish to preserve your right to sue for damages. You do not have to file suit, but you do need to notify them of your desire to preserve your right to file suit (use certified-return-receipt requested mail, see CRS 24-10-109 for more details). If this time period lapses without the letter or if any of the above time periods lapse without you taking/exercising your rights, you have probably forfeited those rights.

If you are desperate as we were to get our kids back in school and limit the damage done by missing so much school time, you will need to pursue the issuance of a temporary injunction, because the normal court process or timeline for judicial review will take months. The school district will not let your child back in school during this appeal process even if there is no evidence that they pose a threat to the school. In addition, they will not even give your son or daughter class assignment information to facilitate them trying to keep up with their classmates on their own.

We hope this doesn't happen to you, but if it does, we hope the above "lessons learned" help.

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