This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
In the Matter of the Expulsion of G.H. from
Independent School District No. 883.
Dissenting, Klaphake, Judge
Department of Children, Families and Learning
Cynthia Stange, 300 Rosedale Square Office Building, 2803 Lincoln Drive, Roseville, MN 55113-1312 (for relator)
Patricia A. Maloney, Holly Lindquist Thomas, Ratwik, Roszak & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55044 (for respondent I.S.D. 883)
Mike Hatch, Attorney General, Martha J. Casserly, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2130 (for respondent DCFL)
Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
Rockford Independent School District No. 883 expelled relator G.H. for the entire 2000-01 school year, premised on the school board’s ultimate finding that relator “sexually assaulted” another student. In relator’s subsequent appeal, the Commissioner of the Minnesota Department of Children, Families, and Learning affirmed the school board’s decision. Relator questions the commissioner’s determination that the school board’s findings were supported by substantial evidence. Because the record contains evidence to justify the commissioner’s conclusion, and because there is no merit in relator’s further challenge directed at his three-week absence from school during the 1999-2000 school year, we affirm the commissioner’s conclusion. There is also no merit in relator’s assertions that he was wrongfully denied timely disclosure of evidence considered at the hearing or that he did not receive an appropriate recording of the expulsion proceedings. Finally, relator has waived his right of appeal on additional, important issues raised for the first time in his reply brief.
The school board’s decision rested on undisputed evidence that relator engaged in “sexual contact” with a female student and that semen deposits found at the scene belonged to relator. Relator’s defense rested on his own description of the other student’s prior conduct, including testimony that she (a) repeatedly telephoned him at home; (b) pestered him for sexual contact; (c) took off her own clothes and allegedly committed acts of assault against him before his actions occurred; and (d) had a propensity to lie.
The board responded to relator’s defense by reciting the other student’s statement that relator forcibly sexually assaulted her and by pointing to evidence of the parties’ comparative sizes, which made it implausible to suggest that relator’s will was overcome by the other actor’s force.
The Pupil Fair Dismissal Act establishes procedures for the “suspension, exclusion, and expulsion” of public-school students. Minn. Stat. §§ 121A.40-.56 (2000), amended by 2001 Minn. Laws ch. 183. The act allows a party to appeal the expulsion decision to the commissioner within 21 calendar days after the school board’s action and provides a scope of review that is traditionally employed for judicial review of agency decisions. Id. § 121A.49. The commissioner may affirm the agency decision, remand for additional findings, reverse, or modify if the aggrieved party’s substantial rights have been prejudiced because the administrative findings or conclusions were
(1) in violation of constitutional provisions;
(2) in excess of the statutory authority or jurisdiction of the school district;
(3) made upon unlawful procedure, except as provided in section 121A.48 [good faith exception];
(4) affected by other error of law;
(5) unsupported by substantial evidence in view of the entire record submitted; or
(6) arbitrary or capricious.
Id.; accord Minn. Stat. § 14.69 (2000) (establishing judicial review of agency decisions on similar standards). Our review under the act is also in the nature of judicial review of an agency decision, with a scope determined by Minn. Stat. §§ 14.63-.69 (2000) (Administrative Procedure Act), but review is directed at the commissioner’s appellate decision. Minn. Stat. § 121A.50.
In sum, these statutory directions establish the peculiar requirement that we review agency determinations that are themselves a limited review of another agency’s adjudication. In addition, Minn. Stat. § 121A.49 directs the commissioner to consider remanding for additional findings, casting upon this court the prospective responsibility to determine whether the commissioner acted arbitrarily in failing to remand for additional findings.
1. Substantial evidence
This court will reverse an administrative agency’s decision only when it reflects “an error of law, the findings are arbitrary and capricious, or the findings are unsupported by substantial evidence.” Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn. 1984) (citations omitted). Substantial evidence is defined as: “evidence considered in its entirety”; “[m]ore than a scintilla of evidence”; and “[s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citations omitted).
Relator asserts that he was not “to blame” for the events that occurred but was himself the victim of assaultive behavior, presenting the question of whether his admitted sexual conduct was a willful act. The record permits the commissioner’s decision that substantial evidence showed relator was engaged in serious misconduct. 
Although the record demonstrates inappropriate behavior by the other actor, these facts do not compel disregard of evidence that relator had sufficient control over the situation, in the moments of his alleged wrongdoing, to be held responsible for his participation in the conduct. The commissioner did not err in affirming the school board’s findings that it was significant in this regard that relator was twice the size of the other actor and was more capable of controlling the circumstances.
2. Due Process
The act also provides that a public school must not “deny due process or equal protection of the law to any public school pupil involved in a dismissal proceeding” that “may result in suspension, exclusion, or expulsion.” Minn. Stat. § 121A.42. Relator’s due-process claims have no merit.
Relator contends that he was denied timely disclosure of certain evidence that the board considered at the expulsion hearing, thus affecting his ability to adequately prepare for the hearing. See id. § 121A.47, subd. 8 (providing that a student or parent of the student “shall be given access to all public school system records pertaining to the pupil, including * * * reports upon which the proposed action may be based” at a reasonable time prior to the hearing). But relator fails to show how he was prejudiced by any non-disclosure. There is no evidence that he requested a continuance for additional time to prepare, and he does not claim that his attorney, after reviewing the evidence more thoroughly, was precluded from recalling a witness if necessary. In addition, the hearing took place over three, nonconsecutive days.
Relator also claims that the transcript of the expulsion proceedings was incomplete and inaccurate. But there is no due-process violation if the party is supplied with audiotapes of the proceedings. See id., subd. 7 (mandating the school board to record the hearing at its own expense and provide a transcript if requested by a party, at the party’s own expense). The board provided relator with an audiotape and, at the board’s own expense, a transcript of the proceedings, thus allowing relator the opportunity to identify any problems with the transcript and to make the necessary corrections. The combination of the transcript and the audiotapes afforded relator with procedural due process. Furthermore, relator failed to demonstrate substantial error in the recordings and the commissioner found none.
Relator makes considerable attacks on his purported suspension during the last three weeks of the 1999-2000 school year. But the commissioner found support in the record for the board’s finding that his nonattendance was voluntary. Because there is no reversible error in respect to this decision, we will not review for error in suspension proceedings. See also Eason v. Independent Sch. Dist. No. 11, 598 N.W.2d 414, 419 (concluding that because the act fails to supply procedure for the appeal of suspension decisions, “the public interest is best served by judicial non-interference in school suspension decisions”).
3. Attorney fees
Relator contends that he is entitled to an award of attorney’s fees under 42 U.S.C. §§ 1983, 1988(b) (2000). Because relator has failed to demonstrate that his constitutional rights were violated, he is not entitled to an award of attorney fees.
4. Other issues
Generally, this court will not consider matters not argued and decided below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” (quotation and citation omitted)). Also, Minnesota law dictates “[t]he reply brief must be confined to new matter raised in the brief of the respondent.” Minn. R. Civ. App. P. 128.02, subd. 3; see also McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (stating issues not raised or argued in relator’s brief “cannot be revived” in a reply brief), review denied (Minn. Sept. 28, 1990).
As relator suggests in his reply brief, the record presents substantial questions with respect to the proceedings in the case. But relator’s attempt to raise the issues in his reply brief is prejudicial to respondent, who had no opportunity to address these matters. See Minn. R. Civ. App. P. 128.02 1967 advisory comm. note (“The reply brief should be confined to strict rebuttal * * *.”). Relator also failed to raise the issues below, before either the board or the commissioner. Relator has waived these issues on appeal by failing to address them in his principal brief. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).
a. Four-month delay
Relator contends that he was denied due process as a result of a four-month delay between the date of the incident and notification of his proposed expulsion. Relator raised this issue in his reply brief but failed to properly raise the issue below.
Mitigating circumstances would suggest the desirability of lesser sanctions, but relator did not question the sanctions before the commissioner or this court.
Relator argued before the commissioner that the superintendent was unlawfully involved in the expulsion determination because she was with the school district in recommending relator’s expulsion and was with the board when it made its ultimate decision to expel. In his reply brief, relator states that the school district employed an attorney who presented the evidence favoring expulsion and also prepared proposed findings of fact for the board to use in deciding the issue. Relator also asserts that the attorney advised the board on the expulsion determination, but the record does not clarify the role of the attorney in this regard.
Relator cites to various authorities regarding his concerns, including Schmidt v. Independent Sch. Dist. No. 1,where this court determined that the school district had violated a teacher’s due-process rights because counsel for the district presented the case for the teacher’s termination, advised the board on its legal rulings, and presented findings of fact. 349 N.W.2d 563, 568 (Minn. App. 1984). The court further determined that teacher-discipline cases must employ an independent hearing officer in the absence of exceptional circumstances. Id. The court noted that the use of an independent hearing officer would eliminate the problem of mixing the roles of prosecutor, judge, and jury. Id. at 567-68.
Here, the act gives the school board the prerogative to make its own findings, but as relator asserts, Schmidt presents a constitutional question as to whether that choice can or should be made in expulsion hearings. See Minn. Stat. § 121A.47, subd. 6. The question is especially appropriate in circumstances where the school acts on alleged conduct of a criminal nature. In this case, the school pursued sanctions based on criminal conduct that had been reported to prosecuting authorities, who had elected against acting on the subject. Nevertheless, because relator has not properly raised the issue and thus not permitted respondent to address these concerns, there is no occasion in this matter to determine the merits of the claim.
d. Additional findings
Relator’s assertions concerning the evidence of the case involve pointed attention to the school board’s findings of fact. The board determined willfulness based almost solely on circumstantial evidence concerning the size and capability of relator without otherwise addressing his assertions as to the conduct of the other actor and the credibility of the testimony in that regard. But relator has neither asked the commissioner for a remand for additional findings, nor has he addressed such a request to this court.
KLAPHAKE, Judge (dissenting)
I respectfully dissent because I believe that the process by which the school district expelled G.H. was fundamentally unfair and violated due process. Minn. Stat. § 121A.47, subd. 7 (2000), requires that a school district provide a student with a fair and impartial hearing before expulsion. In my view, G.H. did not receive such a hearing.
At many points in this proceeding, G.H. raised due process issues when he questioned (1) his “suspension” during the last few weeks of the 1999-2000 school year; (2) the four-month delay between the date of the incident and the expulsion hearing; (3) the failure of the school board to timely disclose certain evidence that the board considered at the expulsion hearing; (4) the school board’s credibility findings; and (5) the school board’s failure to provide a complete and accurate transcript. Although the majority addresses and rejects each of these claims, it fails to consider the cumulative effect these actions had on G.H.’s due process rights.
The majority also concludes that we cannot consider the issue of “bias” because it is being raised for the first time by G.H. in his reply brief. The commissioner herself, however, specifically noted the “drawbacks associated with” the board choosing to serve as the hearing officer in expulsion matters. This court has the authority to review issues, particularly issues involving violations of constitutional rights, “as the interest of justice may require.” Minn. R. Civ. App. P. 103.04.
At a minimum, due process requires an opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 903 (1976) (quotation omitted). Minnesota courts have repeatedly warned school districts that “absent unusual or extenuating circumstances, a hearing examiner should be hired in all cases” to avoid the appearance of bias and impartiality inherent when a school board and its administration act as prosecutor, judge, and jury. Schmidt v. Independent Sch. Dist. No. 1, 349 N.W.2d 563, 567 (Minn. App. 1984) (quotation omitted). Due process problems are compounded when school administration is involved in all phases of the proceedings and when the school district’s attorney presents the case, advises the board on legal rulings, and drafts and presents findings of fact and orders. Id. at 568.
The circumstances of this case mandated employment of an independent hearing examiner. The school district ultimately decided to expel G.H. based on serious allegations of criminal sexual conduct, which were reported to police, but never prosecuted or charged. Given the seriousness and potentially destructive consequences of these allegations, the school board should have proceeded much more cautiously to insure that G.H.’s due process rights were not violated and that G.H. received a fair and impartial hearing.
Because the school district failed to employ an independent hearing examiner and because the school district’s attorney and administration were inappropriately involved in all phases of this proceeding, I would reverse.
 The board concluded that relator’s behavior constituted a willful violation of school-board regulations that substantially disrupted the rights of others and endangered their safety. See Minn. Stat. § 121A.45, subd. 2 (2000) (stating these grounds for dismissal of a student), amended by 2001 Minn. Laws ch. 183, § 1. The school district’s rules of conduct, consistent with this statutory law, provide that disciplinary action may be taken against a student who engages in “unacceptable behavior,” which is defined as
1. Willful conduct which materially and substantially disrupts the rights of others to an education;
2. Willful conduct which endangers school district employees, the pupil or other pupils, or the property of the school; or
3. Willful violation of any rule of conduct specified in [the] discipline policy.
 The board’s findings included the following:
13. The female student is 5 feet tall and weighs 93 lbs. [Relator] is 5 feet 9 inches tall and weigh[s] 210 lbs.
14. The female student has mild cerebral palsy, weak upper body strength, weak right side strength and walks with an abnormal gait.
15. [Relator] is active in athletics including football, wrest[l]ing and track[.]
 There was some discussion of evidence regarding sexual penetration. In this respect, the school board made an erroneous finding of fact in reciting an admission of fault—the admission being that contact, not penetration, occurred. In any event, the issue of penetration was not determinative of the board’s conclusion that the contact constituted sexual assault.
 The commissioner’s duty is to determine only whether substantial evidence supports the findings and conclusions of the fact-finder. The commissioner, in this instance, not only recited evidence supporting the school board’s findings but also made her own pointed findings on the credibility of the witnesses. These findings, which were made outside of the commissioner’s scope of review, were not considered by this court on appeal.
 The commissioner determined the superintendent had a lawful role on the board as an ex officio member but did not address whether that role constituted a constitutional violation where the superintendent brought the expulsion petition to the board. The commissioner volunteered the proper observation in her ultimate discussion of the case that the facts demonstrate the drawbacks of having the school board act as the fact-finder of the proceedings.