may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Expulsion of
N.S. from Parkers Prairie
Independent School District No. 547.
Filed December 22, 1998
Affirmed in part, reversed in part, and remanded
Department of Children, Families, and Learning
Kevin J. Rupp, Jill E. Coyle, Ratwik, Roszak & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for relator Independent School District No. 547)
Lenore Knudtson, Knudtson Law Office, 22595 Akermark Road, Grantsburg, WI 54840 (for respondent N.S.)
Hubert H. Humphrey III, Attorney General, Martha J. Casserly, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of Department of Children, Families, and Learning)
Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.
Parkers Prairie Independent School District No. 547 appeals reversal by the Commissioner of Children, Families, and Learning of the school board's decision to expel respondent N.S. We affirm in part, reverse in part, and remand.
Respondent N.S. was enrolled in Parkers Prairie High School for the 1997-98 school year. He was referred to the principal's office 29 times for various discipline problems during the first five months of the school year. On February 11, 1998, in a school hallway, N.S. hit a classmate, A.T., three times in the back with a closed fist. He attempted to hit A.T. a fourth time, this time in the head, but missed. A teacher witnessed the fourth swing and brought both students to the principal's office. Because of the incident, the school district suspended N.S., pending an expulsion decision.
At the expulsion hearing on February 25, 1998, A.T. testified that N.S. was just "fooling around" with him and that the punches barely hurt. The teacher testified that if the fourth swing had connected, "it would have been a very serious blow." The teacher further testified that the punch "was a very violent, aggressive move." The school board voted unanimously to expel N.S. because his conduct was willful and violated reasonable school board regulations, disrupted the rights of others to an education, and endangered himself and others, all of which are statutory grounds for expulsion under Minn. Stat. § 127.29, subd. 2 (Supp. 1997).
N.S. and his parents appealed the expulsion decision to the Department of Children, Families, and Learning. A representative of the commissioner (commissioner) reversed the school board, reasoning that the school discipline policy did not permit expulsion for a student's first physical-assault violation, that the school board acted arbitrarily in finding that N.S. had committed aggravated assault, and that an "" provision in the discipline policy did not support expulsion. He also found that the school district violated two statutory procedural requirements in expelling N.S., concluding that the violations "added to the arbitrary and capricious nature" of the board's decision and "further confirm" his decision to reverse N.S.'s expulsion. The commissioner did not address whether N.S.'s conduct materially and substantially disrupted the rights of others to an education or whether his conduct endangered others.
In reviewing an agency's decision, this court determines whether the decision was
(a) In violation of constitutional provisions; or
(b) In excess of the statutory authority or jurisdiction of the agency; or
(c) Made upon unlawful procedure; or
(d) Affected by other error of law; or
(e) Unsupported by substantial evidence in view of the entire record as submitted; or
(f) Arbitrary and capricious.
Minn. Stat. § 14.69 (1996).
I. Discipline Policy
The commissioner decided that, although N.S. violated a school board regulation, the violation did not justify expulsion. The school district argues the commissioner's decision is unsupported by substantial evidence, is legally erroneous, and is arbitrary. In reviewing an expulsion decision, the commissioner applies the same standard of review that this court applies to the commissioner's decision. Compare Minn. Stat. § 14.69 (describing this court's standard of review), with Minn. Stat. § 127.32 (Supp. 1997) (describing commissioner's standard of review).
A school district may expel a student for a "willful violation of any reasonable school board regulation." Minn. Stat. § 127.29, subd. 2(a) (Supp. 1997). Parkers Prairie High School has issued a student handbook that includes the school board's discipline policy, which identifies "inappropriate behavior" and describes the consequences therefor. The commissioner does not contend that the discipline policy is unreasonable.
A. Physical Assault
The school board found that N.S. committed physical assault, which the discipline policy defines as
[a]ctions that physically hurt someone, or purposely hurt someone. Hitting, kicking, or hurting someone, or verbally provoking someone who then hits, kicks or hurts you. (Not poking, pushing, shoving or scuffling).
The commissioner determined that the February 11, 1998, incident was N.S.'s first physical-assault violation. The school district claims that the commissioner's conclusion is erroneous and that it "hails form over substance," arguing that N.S. has a long history of misconduct that "quite likely" includes other assaults. But nothing in the record shows that N.S. violated the physical-assault provision before the February 11, 1998, incident. Accordingly, the commissioner did not err in concluding this was N.S.'s first physical-assault violation of the discipline policy.
The commissioner also found that the discipline policy does not provide that a student may be expelled for a first physical-assault violation. The policy clearly states that expulsion is the consequence of a student's third violation, not his first. While the school district claims that the policy provides only minimum consequences, nothing in the policy identifies the stated consequences as minimums or suggests that the district retains the discretion to impose discipline more severe than the policy specifies. The commissioner did not err in concluding that the discipline policy does not allow for expulsion for a first physical-assault violation.
B. Aggravated Assault
The school board found that N.S. committed aggravated assault, which the discipline policy defines as "[p]urposely hitting someone with a weapon or object that injures them, or injuring someone badly." The commissioner concluded that N.S.'s conduct was not aggravated assault within the meaning of the policy. The school district argues the commissioner's conclusion was arbitrary because he did not defer to the school district's interpretation of its own policy, citing Board of Educ. of Rogers, Ark. v. McCluskey, 458 U.S. 966, 970, 102 S. Ct. 3469, 3471 (1982) (stating federal courts should defer to school district's interpretation of its own policies). But McCluskey did not involve application of a statute that grants an administrative agency authority to review a school district's decision. See id. at 969, 102 S. Ct. at 3471 (stating 42 U.S.C. § 1983 "does not extend the right to relitigate in federal court * * * the proper construction of school regulations") (citation omitted). The commissioner has statutory authority to review a school district's interpretation of its policies to ensure that interpretation is not arbitrary and capricious. See Minn. Stat. § 127.32 (providing standard of review).
The commissioner concluded that a fist is not an "object" within the meaning of the discipline policy's definition of aggravated assault. If a fist were an "object," there would be no distinction between physical assault and aggravated assault, which the discipline policy defines as separate offenses. There is no evidence that N.S. used an object other than his fist to hit A.T. or that he injured A.T. badly. The commissioner's decision that N.S. did not commit aggravated assault under the discipline policy was not arbitrary.
C. Emergency or Highly Unusual Circumstances
The discipline policy gives the school principal discretion to choose an appropriate consequence in "[e]mergency or highly unusually [sic] circumstances," and the school board purported to justify its expulsion of N.S. on this ground as well. The commissioner found that the school district could not rely on the emergency circumstances provision because it "creates an arbitrary standard which cannot be reasonably enforced." We do not reach the issue of whether this provision of the policy might be enforceable under appropriate circumstances because we find it inapposite here. The principal did not exercise his discretion to choose an appropriate consequence for N.S.'s behavior, as contemplated by the emergency circumstances provision. We therefore affirm the commissioner's conclusion that the school board could not rely on this provision in expelling N.S.
II. Procedural Violations
The commissioner found that the school district violated two statutory procedural requirements in expelling N.S. and that the violations "further confirm" his decision in this case. First, the commissioner found that, at the expulsion hearing, the principal misstated a notification procedure required by the Pupil Fair Dismissal Act. See Minn. Stat. § 127.30, subd. 2 (Supp. 1997) (requiring school district to make "reasonable efforts to notify the parents of the suspension by telephone"). But the record shows that the school district in fact did telephone N.S.'s mother to notify her of N.S.'s suspension. Any subsequent misstatement of the requirement is immaterial.
Second, the commissioner found that the school district failed to advise N.S.'s parents of "available legal assistance." By statute, a school district must, before an expulsion hearing,
advise the pupil's parent or guardian that free or low-cost legal assistance may be available and that a legal assistance resource list is available from the department of children, families, and learning.
Minn. Stat. § 127.31, subd. 2(f)(1) (Supp. 1997). Here, in a letter notifying N.S.'s parents that an expulsion hearing would be held, the school district stated that
[N.S.'s parents] have the right * * * to have a representative of [N.S.]'s choosing, including legal counsel, at the hearing * * * . Free or low-cost legal assistance may be available to [them]. A legal assistance resource list is available from the Minnesota Department of Children, Families and Learning.
The letter satisfied the notification requirement. The commissioner erred in finding that the school district violated statutory procedural requirements in expelling N.S., and we therefore reverse that portion of his decision.
III. Grounds for Expulsion Not Addressed by Commissioner
The school district claims that the commissioner erred in failing to address two of three statutory grounds relied on by the school board in expelling N.S. A student may be dismissed for:
(a) willful violation of any reasonable school board regulation. Such regulation must be clear and definite to provide notice to pupils that they must conform their conduct to its requirements;
(b) willful conduct that materially and substantially disrupts the rights of others to an education; or
(c) willful conduct that endangers the pupil or other pupils, or surrounding persons, or property of the school.
Minn. Stat. § 127.29, subd. 2 (Supp. 1997). "Dismissal" includes exclusion, expulsion, and suspension. Minn. Stat. § 127.27, subd. 2 (1996).
Here, the school board clearly relied on all three statutory grounds in expelling N.S., although any of the three alone is sufficient. See Thompson v. Commissioner of Pub. Safety, 567 N.W.2d 280, 282 (Minn. App. 1997) (explaining that in statutes "or" indicates that satisfaction of any one provision satisfies statute), review denied (Minn. Sept. 25, 1997). But the commissioner reversed the school board's decision upon concluding only that the board had acted arbitrarily in basing N.S.'s expulsion on violations of its discipline policy. The commissioner made no findings regarding whether N.S.'s conduct materially and substantially disrupted the rights of others to an education or whether his conduct endangered others. The commissioner must make findings and conclusions on all material issues. See Minn. Stat. § 14.62, subd. 1 (1996) (stating agency decisions in contested cases "shall include the agency's findings of fact and conclusions on all material issues").
Accordingly, on remand the commissioner must consider whether the facts support the school district's expulsion of N.S. based on either section 127.29, subdivision 2(b), or section 127.29, subdivision 2(c). The commissioner must, at a minimum, determine whether N.S.'s conduct resulting in 29 referrals to the principal's office in the course of five months disrupted the rights of others to an education within the meaning of section 127.29, subdivision 2(b), and whether the fact that N.S. swung his fist at A.T. in a school hallway endangered A.T. or surrounding persons within the meaning of section 127.29, subdivision 2(c).
Affirmed in part, reversed in part, and remanded.