Find Legal Information

No. 3-02-0744

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

PRESIDING JUSTICE McDADE delivered the opinion of the court:

This case arises from the one-year expulsion of a student inthe Beecher Community School District. The student was expelledfrom school after being implicated in an incident involving drugsat a school function. The plaintiff asserted that his son's dueprocess rights were violated by the defendant school district andsought a preliminary injunction in the trial court, which wasdenied. The plaintiff sought review by way of interlocutoryappeal and we reverse.

FACTS

While a freshman at the Beecher Community High School duringthe 2001-02 school year, Kevin Camlin attended a school functionat a bowling alley. During the event, a member of the schoolstaff learned that someone had smoked marijuana in the boys'bathroom.

The incident was reported to the administration, which beganan investigation. After a series of interviews with students atthe school, the administration determined that three boys hadbeen in the bathroom when the marijuana was smoked: Kevin Camlin,Mike Barton, and Miguel Savalez.

The three were interviewed separately by the dean ofstudents, Kevin Brown. Miguel admitted that he had marijuana inhis possession that he obtained from Mike Barton. Barton admittedsmoking the marijuana. Neither stated that Camlin had smoked aswell, and in his interview Kevin denied doing so, although headmitted that he knew the other boys were smoking.

As punishment, Miguel and Mike received 10-day suspensions,with recommendation for expulsion. Although there was no evidencethat Kevin was smoking, he received a six-day suspension becausehe admitted to being present in the bathroom.

Over winter break, Mike Barton struck a deal with the schooladministrators whereby he would avoid expulsion by implicatingCamlin in the incident. On January 17, 2002, when the springsemester began, Kevin was called to the dean's office and wastold that the dean had received "further information" aboutKevin's involvement.

He was not informed of the nature the "further information"or by whom it had been supplied. At that time, Kevin asked tosee his mother, but the request was denied and he was told thathe could see her following the interview. The dean demanded thatKevin sign a disciplinary form acknowledging his culpability.Kevin refused and again demanded to see his mother. The dean thennotified Kevin that he was imposing a 10-day suspension and wouldrecommend expulsion.

Following the January 17 confrontation, Kevin's parentswere notified that an expulsion hearing was scheduled for January31, 2002, and that Kevin was charged with violation of a broaddrug rule. They protested the expulsion and repeatedly urged theschool to adhere to its published school policy concerning drugviolations.

In August 2001, a memo was sent from the high schoolprincipal to parents explaining the school district'sdrug/alcohol policy and requiring a parent's signature to show ithad been received. The attached policy, which was part of theParent-Student Handbook, stated:

"[S]tudents who 'sell, distribute, use, have, or areunder the influence of illegal drugs, look-a-likedrugs, controlled substances, associated paraphernalia,or alcoholic beverages' are subject to disciplinaryaction, including in-school suspension, out-of-schoolsuspension, or expulsion."

Furthermore, the policy stated:

"[S]hould a student choose to violate this policy,Beecher High School highly encourages him/her toparticipate in an educational experience involving thestudent and his/her parents. Therefore, a first-timeviolator will be given the option of participating inthe NEXT STEP PROGRAM sponsored by the Parkside LodgeSouth Resolve Center or he/she will be suspended fromschool as outlined in the student handbook if the NEXTSTEP PROGRAM is not considered by the student andparent."

Kevin's parents requested that their son be allowed to enter theNEXT STEP treatment program as an alternative to punishment, butthat request was denied by the school administration.

On January 31, 2002, an expulsion hearing was held, withFrank Nardi, a guidance counselor at the high school, acting asthe hearing officer. Mike Barton, his parents and his attorney;Dean Brown, acting as the prosecutor; and Kevin's parents were inattendance.

Under examination, Mike Barton testified that Kevin gave himthe bag of marijuana on December 4, 2001. On December 6, hebrought the marijuana to school and to the bowling trip, whereBarton, Savalez and Camlin all smoked. Additionally, Bartontestified that he gave Kevin $20 in exchange for the drugs onthat day.

Following Barton's testimony, Kevin's parents asked whenthey would be allowed to present evidence. Nardi advised themthat evidence needed to be presented at that time. They offerednone but, rather, argued that the school should adhere to thedrug policy stated in the Parent-Student Handbook.

Following the hearing, Nardi wrote a three-page report onthe proceedings but did not make any findings of fact ordeterminations of the credibility of the witnesses. Both Nardiand other school administrators acknowledged that his onlyfunction was to record the proceedings and report what had been said to the school board. On February 11, 2002, the school boardheld a meeting during which it decided, by unanimous vote, toexpel Kevin.

Following the expulsion, Kevin's parents filed, in thecircuit court, a motion for injunctive relief seeking to enjointhe expulsion and compel plaintiff's admission into the NEXT STEPPROGRAM. A hearing was held on the motion on August 29 and 30,2002. The trial court ruled that the petitioner had no likelihoodof success on the merits, that there was no due processviolation, and that the school did not violate its drug/alcoholpolicy. The plaintiff appeals this decision.

ANALYSIS

Plaintiff appeals from the denial of his petition for apreliminary injunction. In order to obtain this equitable relief,the petitioner must prove that (1) there is a clearly ascertainedright in need of protection, (2) irreparable harm will resultunless the injunction is granted, (3) there is no adequate remedyat law, and (4) there is a likelihood of success on the merits.Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 156, 601 N.E.2d720, 726-27 (1992). The trial court's decision should be reviewedfor an abuse of discretion. People v. Studio 20, Inc., 314 Ill.App. 3d 1000, 1005, 733 N.E.2d 451, 454 (2000).

On review, the plaintiff makes two assertions in support ofhis claim of a right in need of protection: (1) that his dueprocess rights were violated at the expulsion hearing; and (2)that the school district violated his due process rights byrefusing to follow its own stated policy concerning first-timedrug offenders. The school district urges the court to find thatits process was free of any constitutional infirmity requiringredress, and contends that Kevin's punishment was consistent withits stated alcohol/drug policy.

The plaintiff asserts that the expulsion hearing was notconstitutionally adequate because, first, the hearing officer wasnot able to make findings of fact or judge the credibility ofwitnesses, thereby depriving the decision-maker of any direct orindirect basis to consider or determine the believability orpersuasiveness of the evidence. Second, the plaintiff claimsthat he was refused a meaningful opportunity to cross-examine thewitness against him, thereby denying him the chance to confronthis accuser and expose any bias or untruth.

Due process guarantees are not the same for all types ofproceedings. Rather, the procedural protections required by dueprocess must be determined by reference to the rights andinterests at stake in a particular case. Morrissey v. Brewer, 408U.S. 471, 481, 33 L. Ed. 2d 484, 494, 92 S. Ct. 2593, 2600(1972). "The very nature of due process negates any concept ofinflexible procedures universally applicable to every imaginablesituation." Cafeteria & Restaurant Workers & Union Local 473 v.McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 1236, 81 S. Ct.1743, 1748 (1961). However, at a minimum, the due process clauserequires that deprivations of life, liberty, or property bepreceded by notice of the charges and an opportunity to be heard.Goss v. Lopez, 419 U.S. 565, 579, 42 L. Ed. 2d 725, 737, 95 S.Ct. 729, 738 (1975).

In Goss v. Lopez, the United States Supreme Court ruled thatstudents who were suspended for 10 days were entitled to noticeof the pending suspension, and to "some kind of a hearing." (Emphasis omitted.) Lopez, 419 U.S. at 579, 42 L. Ed. 2d at 737,95 S. Ct. at 738. The process required in that case was somewhatinformal; in fact, it was no more than an informal hearing toallow the student to tell her side of the story. Lopez, 419 U.S.at 584, 42 L. Ed. 2d at 740, 95 S. Ct. at 741. However, the Courtnoted that in cases involving longer suspensions or expulsions,more formal proceedings may be required. Lopez, 419 U.S. at 584,42 L. Ed. 2d at 740, 95 S. Ct. at 741.

Here, the plaintiff was afforded a hearing on his expulsionand was provided notice of the hearing. He was, however, deniedany information about the identity of his accuser or the natureof the specific charge or of the new evidence he would be calledupon to refute and was thus denied adequate notice of the chargesagainst him. The plaintiff's argument that he was not given theopportunity to confront witnesses against him is not whollyaccurate. Kevin's parents were in the hearing room and couldhave questioned Mike Barton, but this "opportunity" was not fairor meaningful because they had no prior knowledge about the whatand who of the charge. Moreover, the actual decision-maker hadno first-hand basis for arriving at a conclusion. There was noverbatim transcript, only a three-page report by a schoolemployee who was not allowed to make factual findings or evaluatecredibility. Nor was the information ultimately presented to theschool board limited to that disclosed at the hearing or in thereport. It appears that the superintendent advised board membersof something else he had heard that weighed against plaintiff butthat plaintiff had no notice of or opportunity to respond to orrefute. For these reasons, we do not share the trial court'sconfidence that there is no likelihood plaintiff could prevail onthis issue on the merits.

The plaintiff also argues that the school board erred by notfollowing its own rules when punishing his conduct. The school'spolicy states that "students who 'sell, distribute, use, have, orare under the influence of illegal drugs'" are in violation ofthe school's drug policy. However, the rules state that a first-time offender has the option of electing a treatment program, andif the option is not exercised, the student will be subject tosuspension. The school argues that it is under no obligation tofollow its rules when punishing students. We believe thisassertion is clearly wrong.

The plaintiff has a protected property interest in hisentitlement to a public education. Lopez, 419 U.S. at 574, 42 L.Ed. 2d at 734-35, 95 S. Ct. at 736. Since this interest exists,school boards must proceed in accordance with the principles ofdue process. Lopez, 419 U.S. at 574, 42 L. Ed. 2d at 734-35, 95S. Ct. at 736. The property interest claimed by a recipient of abenefit is defined by existing rules or understandings that arisefrom independent sources such as state law, rules andunderstandings that secure certain benefits and support claimsfor entitlement to benefits. Board of Regents v. Roth, 408 U.S.564, 576-77, 33 L. Ed. 2d 548, 560, 92 S. Ct. 2701, 2708-09(1972). Here, the school board has established rules that definea student's rights and obligations in the event the studentviolates the school's drug policy. The school is empowered tocreate such rules by state statute. 105 ILCS 5/10--20.5 (West2000). Although the school board claims to have rescinded thepolicy, the record is devoid of any indication that this was doneprior to the plaintiff's demand or that such rescission waseffectively communicated to students and parents. The schoolboard, by promulgating the rules, has created an entitlement anda right to certain procedures, on which a student may expect torely. It may not refuse to apply the rules it has created.

This result is also supported by Illinois law. In Lewis v.Hayes, 152 Ill. App. 3d 1020, 505 N.E.2d 408 (1987), this courtfound that a public employee could rely on rights concerninghiring established by administrative rules. The court found thatthe employee had acquired a property interest in the privilegescreated by the rules. Lewis, 152 Ill. App. 3d at 1024, 505 N.E.2dat 411. We reached a similar result in Fernandes v. Nolen, 228Ill. App. 3d 424, 592 N.E.2d 1151 (1992).

The defendants cite the case of Martin v. Shawano-GreshamSchool District, 295 F.3d 701 (7th 2002), for the propositionthat school rules do not create rights that may be relied upon.We find the case to be inapposite and decline to follow it.Initially, we note that the decision is not binding on thiscourt. More importantly, although every school day is valuable, the case does not involve the deprivation of a significanteducational right. In that case, the student was caught with apack of cigarettes and was given a three-day suspension. Inviolation of school policy, her parents were not immediatelynotified of the suspension, and they were not called to pick thestudent up from school. Nevertheless, the court found that theschool had complied with the "minimal" due process requirementsmandated by Lopez for a short suspension. Martin, 295 F.3d at706.

This case does not involve a short suspension but rather anexpulsion for a year. The Supreme Court in Lopez acknowledgedthat longer suspensions and expulsions require more due processprotections than short suspensions. Lopez, 419 U.S. at 584, 42 L.Ed. 2d at 740, 95 S. Ct. at 741. Here, in light of the seriousdeprivation he faced, the plaintiff was entitled to significantdue process protections such as notice of the charges andevidence against him, a meaningful opportunity to respond to theevidence and charges, and a chance to rely on duly enacted schoolpolicy. The process that resulted in Kevin Camlin's expulsion didnot satisfy these fundamental requirements.

Since the plaintiff was deprived of significant due processrights in the expulsion process itself and in his denial of theprotection of rules enacted by the school board pursuant tostatutory authority, we find there were clearly ascertainedrights in need of protection and that plaintiff had a reasonablelikelihood of success on the merits of his case. Therefore, thepreliminary injunction should have been granted. It was an abuseof discretion for the trial court to find otherwise. The judgmentof the circuit court of Will County is reversed.

Reversed.

LYTTON, J., concurs.

SCHMIDT, J., specially concurs.

JUSTICE SCHMIDT, specially concurring:

I concur in the judgment of the court reversing the judgmentof the circuit court of Will County. In doing so, I agree withthe majority's conclusion that the school board was bound tocomply with its own drug/alcohol abuse policy. There is nothingambiguous about that policy, which provides that a first-timeoffender, even one accused of selling or distributing drugs, hasthe option of electing a treatment program in lieu of suspension. Parents were required to read and agree to the policy. I agreewith the majority that while the school board was under noobligation to enact such a policy, once enacted, the school boardwas bound to live by it. See Lewis v. Hayes, 152 Ill. App. 3d1020, 505 N.E.2d 408 (1987); Fernandes v. Nolen, 228 Ill. App. 3d424, 592 N.E.2d 1151 (1992). I believe the school board'sfailure to follow its own rules when disciplining this student,is dispositive of this appeal.

I part company with the majority when it holds that thisstudent was otherwise denied due process in the expulsionprocess. Kevin Camlin was aware that the proposed expulsionarose out of an incident involving marijuana at a school functionon December 6, 2001. He was also aware that Mike Barton andMiguel Savalez were the other two individuals involved in thisincident.

Camlin's parents were given a letter informing them of thecharges and a hearing scheduled for January 24, 2002. Thehearing was continued to January 31, 2002, in order to satisfythe Camlins' request for additional time to locate legal counsel. The Camlins were advised to bring Kevin to the hearing.

At the hearing, the Camlins appeared without legal counseland without Kevin. Again, it strikes me that the Camlins mayhave been lulled into this conduct by virtue of the language ofthe school drug policy indicating that their son, as a first-timeoffender, would have the option of electing a drug treatmentprogram. Therefore, my concurrence with the majority. However,but for the school drug policy issue, I do not believe that KevinCamlin was denied due process. Minimum due process requiresnotice and a meaningful opportunity to be heard. Williams v.Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 563 N.E.2d 465(1990). It is not a denial of due process where a party fails toavail himself to that opportunity. People v. DeLuca, 302 Ill.App. 3d 454, 706 N.E.2d 927 (1998), citing Campbell v. CookCounty Sheriff's Merit Board, 215 Ill. App. 3d 868, 576 N.E.2d 90(1991). He was given the opportunity to appear, to cross-examine witnesses, and to present his own evidence. He failed todo so.

While I cannot figure out exactly what the majority requiresof a school district in an expulsion case, I believe the factsshow that Kevin Camlin was aware of the nature of the chargesagainst him, that being a drug-related incident involvinghimself, Mike Barton and Miguel Savalez on December 6, 2001. Theexpulsion hearing was even continued to allow the Camlins toobtain counsel. At the hearing, they not only failed to bringlegal counsel, they failed to bring their son, Kevin Camlin. They did not cross-examine witnesses or present any evidence. The majority concludes that one can refuse to participate in ahearing and then complain that the hearing violated his dueprocess rights. I respectfully disagree.