This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of the Expulsion of Richard Krueger

from Independent School District No. 347.

Filed March 3, 1998


Klaphake, Judge

Department of Children, Families and Learning

John E. Mack, Mack & Daby, 26 Main Street, P.O. Box 302, New London, MN 56273 (for relator Krueger)

Patricia A. Maloney, Bridget A. Sullivan, Ratwik, Roszak & Maloney, P.A., 300 Peavey Building, 730 Second Ave. South, Minneapolis, MN 55402 (for respondent ISD No. 347)

Hubert H. Humphrey III, Attorney General, Rachel L. Kaplan, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for observer Minnesota Department of Children, Families, and Learning)

Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and Klaphake, Judge.



Relator Richard Krueger, a high school student expelled from school for fighting, appeals the decision of the Commissioner of the Department of Children, Families, and Learning, upholding the school board's decision to expel him. He claims that (1) his expulsion was invalid due to violations of the Pupil Fair Dismissal Act, the Minnesota Open Meeting Law, and the Due Process Clause of the constitution; (2) the school board unlawfully failed to base its decision on the hearing officer's recommendations; and (3) evidentiary and procedural irregularities undermined the hearing process and warrant reversal of the school board's action. We affirm because we conclude that the expulsion did not violate any statutes or relator's constitutional rights, the decision was within the school board's discretion, and the alleged irregularities do not merit reversal of the school board's decision.



The school district contends that this appeal is moot because relator's expulsion ended on November 3, 1997, and relator may now be readmitted to school. We disagree. Under the doctrine of collateral legal consequences, this court may consider "the continuing effects of a challenged but completed action." Star Tribune v. Board of Educ., Spec. Sch. Dist. No. 1, 507 N.W.2d 869, 871 (Minn. App. 1993) (case not moot after settlement where it could affect school board's future performance of duties), review denied (Minn. Dec. 22, 1993). One such collateral legal consequence in this case could be relator's required participation in a "readmission plan" to ensure his future good behavior at school. See Minn. Stat. § 127.31, subd. 15 (1996). Further, this case is "capable of repetition, but likely to evade review" because it concerns several issues of public concern that may otherwise not be considered on review. See Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 903 (Minn. 1996) (teacher license revocation case not moot even after teacher died); In re Peterson, 360 N.W.2d 333, 335 (Minn. 1984) (case considering appropriateness of revocation of mental health patient's provisional discharge from commitment not moot even where patient discharged during pendency of appeal).

Pupil Fair Dismissal Act

Relator contends that Assistant Principal Connie Nicholson's attendance at a closed portion of the school board meeting violated the Pupil Fair Dismissal Act (the Act). Minn. Stat. § 127.26-.39 (1996). However, the Act merely requires that the school board base its decision on the hearing officer's recommendation and render that decision at a "special meeting." Minn. Stat. § 127.31, subd. 14. Further, any technical violation pertaining to Nicholson's presence is excused by the good faith exception that applies to all "technical violations" of the Act. Minn. Stat. § 127.311. Relator has demonstrated no prejudice, and, as the record indicates, the underlying reason for closing that portion of the meeting during which Nicholson appeared was the concern over publicly revealing private data about other students. Thus, her presence at the meeting did not violate the Act.

Open Meeting Law

Relator also argues that Nicholson's presence at the closed meeting violated the Open Meeting Law. The Open Meeting Law does not require meetings of governing bodies, including school boards, to be open to the public when the governing body is "exercising quasi-judicial functions involving disciplinary proceedings." Minn. Stat. § 471.705, subd. 1 (1996). Further, a governing body may close any portion of a meeting requiring the discussion of non-public "educational data." Id., subd. 1d(a). Thus, the school board did not violate the Open Meeting Law by closing the portion of the meeting in which it discussed relator's discipline or discipline imposed in similar cases.

Relator cites a different subsection of the Open Meeting Law for his assertion that after preliminary consideration of charges in a disciplinary proceeding, all further meetings must be open, and "[a] meeting must * * * be open at the request of the individual who is the subject of the meeting." Id., subd. 1d(c). This subsection does not control in this case. The more specific subsections pertaining to discussion of non-public data and the school board's right to decide disciplinary matters in a closed meeting control over the general, but conflicting, subsections on disciplinary proceedings. See Minn. Stat. § 645.26, subd. 1 (1996) (in event of conflicting statutory provisions, specific provision prevails over general provision).

Due Process Argument

Relator claims he was denied due process because of Nicholson's attendance during the decision phase of the school board meeting. However, due process guarantees in student disciplinary matters are minimal, requiring only "oral or written notice of the charges * * * [and] an explanation of the evidence the authorities have and an opportunity to present [the student's] side of the story." Goss v. Lopez, 419 U.S. 565, 581, 95 S. Ct. 729, 740 (1975); see Board of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 90, 98 S. Ct. 948, 955 (1978) (allowing academic dismissal without hearing). As relator received these guarantees, his due process claim is without merit.

Evidentiary and Procedural Claims

Relator claims that the school board failed to base its decision on the recommendation of the hearing officer as required by Minn. Stat. § 127.31, subd. 14 ("[t]he decision by the school board shall be based upon the recommendation of the hearing officer"). Although the school board's written decision was short, it was factually consistent with the hearing officer's recommendation. While the discipline imposed by the school board was more severe than that recommended by the hearing officer, it was consistent with the original discipline recommended by the school administration and is supported by the facts.

The law does not require a school board to follow the recommended decision of the hearing officer. It is within the school board's discretion to reach a different decision, subject, of course, to the right of judicial review.

Beste v. Independent Sch. Dist. No. 697, 398 N.W.2d 58, 63 (Minn. App. 1986) (citations omitted).[1]

Relator also contends he was denied a fair hearing because the hearing officer excluded his mother's testimony about discipline imposed for other fighting incidents and because the commissioner similarly declined to consider evidence of discipline imposed in other cases. On review, courts must give substantial "deference to the fact-finding processes of the administrative agency." Taylor v. Beltrami Elec. Coop., Inc., 319 N.W.2d 52, 56 (Minn. 1982). The rules of evidence do not apply in administrative proceedings; instead, an agency

may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonable prudent persons in the conduct of their affairs. * * * [The agency] may exclude incompetent, irrelevant, immaterial and repetitious evidence.

Minn. Stat. § 14.60, subd. 1 (1996).

The hearing officer in this case properly excluded evidence of other disciplinary cases, which was offered by relator's mother. The proffered evidence had questionable probative value because it pertained to junior high students at another school and because relator's mother's competency to testify on this point was not clear. Additionally, the Act does not require consideration of other cases in imposing discipline in a given case.[2] See Minn. Stat. § 127.31, subd. 13 (discipline recommended by hearing officer must be based on evidence presented), subd. 14 (school board's decision must be based on hearing officer's recommendation).

Further, the commissioner did not err in declining to consider evidence of other disciplinary cases and in upholding the discipline imposed in this case. The Act does not require that the commissioner consider evidence of other disciplinary cases. See Minn. Stat. § 127.32 (commissioner's decision must be based on record evidence). Finally, because of the procedural posture of this case, our inquiry is limited to whether there is substantial evidence to support the commissioner's decision. See Minn. Stat. § 14.69 (1996). Because relator admitted to violating the school policy and the discipline imposed was consistent with the school discipline policy, there is ample evidence to support the commissioner's decision.

Relator argues, finally, that the commissioner's decision should be reversed because of alleged procedural violations. In addition to previously discussed procedural objections, relator claims that he did not receive an "informal" administrative conference prior to his suspension as required by Minn. Stat. § 127.30, subd. 1, and that he was not offered an alternative educational program before dismissal as required by Minn. Stat. § 127.29, subd. 1. However, the record demonstrates that the school substantially complied with these statutory obligations. After the fight, relator met with Principal Richard Erdmann, who discussed the incident with him and, after doing so, determined that relator should be suspended. The record also shows that relator was told to contact his teachers individually for assignments regarding the very brief duration of the 1996-97 school year, and that he was offered a specific educational program for the 1997-98 school year. Thus, the school met the procedural requirements of the Act, and there are no procedural violations which merit reversal of the commissioner's decision.


[1] Relator also argues that Beaty v. Minnesota Bd. of Teaching, 354 N.W.2d 466, 472 (Minn. App. 1984), required the school board to explain its reasons for rejecting the hearing officer's recommendation. Beaty requires such an explanation only if the agency "rejects or significantly deviates from the hearing examiner's findings." Id. In this case, the board's findings were consistent with the hearing officer's recommendation and no explanation is required under Beaty.

[2] Although relator strenuously argues that his mother's job was threatened during her testimony, the hearing transcript does not support this allegation. When relator's mother initiated the inquiry about whether her job was "on the line" for testifying, the hearing officer told her that it was not. This did not amount to tampering with the witness, as relator suggests. Additionally, any inaccuracies or lapses in transcription of the hearing testimony occurred throughout the transcript and could have been due to technical problems. Relator has identified nothing in the record that establishes someone tampered with the hearing tape.