Court of Appeal Allows Dismissal as an Alternative to Expulsion, But Ignores Constitutional Due Process Rights
August 2, 2013 In June, California's Fourth District Court of Appeal ruled that a charter school student was not entitled to the evidentiary hearing required under Education Code section 48918 before being dismissed from a charter school for bringing a knife to school and threatening a fellow student (Scott B. v. Orange County High School of Arts 217 Cal.App.4th 117 (Cal.App. 4 Dist.2013). Read the decision.
A student with a disability at the Orange County High School of the Arts ("OCHSA") exhibited a knife and threatened a fellow student, resulting in his suspension. After school staff determined that the act of bringing the knife to school was not a manifestation of the student's disability, OCHSA sent a letter to his mother informing her of the school's decision to dismiss him from the school, pursuant to the school's student discipline policy.
The student appealed to the OCHSA Board of Trustees, which upheld the dismissal. The student then filed a legal action (writ of administrative mandate), arguing that he was entitled to an evidentiary hearing under Education Code Section 48918 before lawfully being expelled from the charter school.
The Court rejected the student's claim and upheld the dismissal for two key reasons. First, the Court noted that Education Code Section 48918 does not apply to charter schools as a result of the mega-waiver (Education Code Section 47610), which exempts charter schools from many Education Code requirements. The Court noted that, because OCHSA had not specifically adopted Section 48918 as part of its charter, the school was not bound by the statutory requirements.
The Court further found that the student was "dismissed" from OCHSA, not expelled. Distinguishing dismissal from expulsion, the Court observed that dismissal from a charter school does not implicate the same concerns as expulsion from a traditional school. The Court reasoned that, "OCHSA is a school of choice. No student is required to attend." When a student is dismissed from a charter school, the student is "free to immediately enroll in another school without the loss of classroom time." Accordingly, the Court held that the student was not expelled and, therefore, was not entitled to an evidentiary hearing.
While this case bolsters charter school autonomy and flexibility by endorsing a broad application of the mega-waiver, Charter schools should be cautious in applying the ruling to their own student discipline procedures. Because the student did not challenge whether or not his constitutional due process rights were violated, the court did not address constitutional due process requirements in its opinion.
Charter schools must still provide basic due process protections in disciplining students, up to and including expulsion. Charter schools must provide students with adequate notice and an opportunity for hearing prior to suspension or expulsion. For suspensions of 10 days or less, a student must be "given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." (Goss v. Lopez, 419 U.S. 565 at 581 (1975). Longer suspensions or expulsions, may require more formal procedures. Finally, charter schools must provide an evidentiary hearing prior to expulsion if the school's charter or authorizing agency so requires.