Friday, July 12, 2013
In Scott B. v. Bd. Of Trustees of Orange Cnty. High School of Arts, 158 Cal.Rptr.3d 173 (Ct.App. Calif. 2013), a student challenged his dismissal/expulsion from a charter school. He had accumulated enough demerits under the school code to be removed and then, on top of that, brought a knife to school. Prior to his removal, the school conducted a manifestation review, per the IDEA, to determine whether his behavior was a manifestation of his disability. Finding that it wasn't, the school dismissed/expelled him. He then appealed to the school board, but was denied a hearing. His challenge before the court was that this denial of a hearing was in violation of the state's disciplinary statutes and federal due process.
The court, however, reasoned that:
Dismissal from a charter school does not implicate these concerns to the same degree as expulsion. Unlike public schools generally, “OCHSA is a school of choice. No student is required to attend.” When a student is dismissed from OCHSA, the student is free to immediately enroll in another school without the loss of classroom time. Thus, dismissal from OCHSA need not and should not delay Scott's education. The May 16, 2011 letter informing Scott's mother of his dismissal instructed her to immediately enroll Scott in another school. Scott's transcripts from OCHSA were attached to the letter. The parties have not cited us to any statute requiring a new school be notified of a dismissal from a charter school.
I find this reasoning spurious for a couple of reasons. First, analogous arguments have been made in regard to students who are expelled from a regular school, but who then are assigned to an alternative school. Some courts have found that due process is not triggered, while others have seen through this argument. The latter are far more persuasive and intellectually honest. Second, numerous state legislatures and local school districts recognize that treating assignment to alternative school as something other than an expulsion or suspension is a fiction. Thus, they affirmatively extend due process rights to these students. See Maureen Carroll, Racialized Assumptions and Constitutional Harm: Claims of Injury Based on Public School Assignment, 83 Temp. L. Rev. 903, 914 (2011). These states outweigh the number of courts finding otherwise. Third, if charters are fully public schools, removing a student from the school should implicate due process in the same way that it would in a regular public school. Finally, the fact that a student can enroll in another school after being dismissed from the charter does not end the matter. Many state statutes allow an expelled student to enroll in another school or district, assuming the school or district will accept the student. I am not aware of the opportunity or potential to enroll elsewhere as ever having been a basis a court to hold due process is not triggered.