Racine Unified School Dist. v. Thompson, 80-2202

• Decision Date: 19 May 1982
• Docket Number: No. 80-2202,80-2202
• Citation: 321 N.W.2d 334,107 Wis.2d 657
• Parties: , 30 A.L.R.4th 926, 4 Ed. Law Rep. 1294 RACINE UNIFIED SCHOOL DISTRICT, et al., Petitioners-Respondents and Cross- Appellants, v. Barbara THOMPSON, State Superintendent of Public Instruction, Respondent- Appellant and Cross-Respondent.
• Court: Wisconsin Court of Appeals

Page 334

321 N.W.2d 334

107 Wis.2d 657, 30 A.L.R.4th 926, 4

Ed. Law Rep. 1294

RACINE UNIFIED SCHOOL DISTRICT, et al., Petitioners-Respondents and Cross- Appellants, v. Barbara THOMPSON, State Superintendent of Public

Instruction, Respondent- Appellant and Cross-Respondent.

No. 80-2202.

Court of Appeals of Wisconsin.

Argued Sept. 29, 1981.

Opinion Released May 19, 1982.

Opinion Filed May 19, 1982.

Daniel D. Stier, Asst. Atty. Gen., argued for respondent-appellant and cross-respondent; Bronson C. La Follette, Atty. Gen., on brief.

Gilbert J. Berthelsen, Racine, argued, for petitioners-respondents and cross-appellants; Arthur P. Simpson of Capwell, Berthelsen, Nolden & Casanova, Ltd., Racine, on brief.

Before VOSS, P. J., and BROWN and SCOTT, JJ.

BROWN, Judge.

State Superintendent of Public Instruction Barbara Thompson ¹ appeals from a judgment overturning her order reversing an expulsion on the ground that hearsay was inadmissible at a school board student expulsion hearing. We conclude that a student's right to due process in an expulsion hearing is satisfied even though some of the testimony presented was hearsay given by members of the school staff. For this reason, we affirm the judgment of the circuit court.

On March 3, 1980, V. O., an eleventh-grader at J. I. Case High School in Racine was requested by Assistant Principal Christiansen to consent to a locker search because a student had reported to him that his class ring had been stolen, and V. O. was the only student present when the ring disappeared. At his locker, V. O. reached inside the pocket of a jacket hanging inside and produced the ring. V. O. was then questioned by school authorities.

An expulsion hearing was set for March 13, 1980, pursuant to sec. 120.13(1)(c), Stats. The procedural mandates of the statute were apparently followed, as it is only the admission of hearsay testimony presented at the hearing to prove the ring itself was stolen or missing that is challenged on appeal. At the hearing, Mr. Johnson, the Director for Pupil Personnel, gave an outline of the events of March 3, much of which was hearsay. His outline of the events was corroborated, in large part, however, by the testimony given by Mr. Christiansen and two other staff members. Testimony was also given by the accused student and his mother. Only the student whose ring was stolen did not testify. It is this last discrepancy that forms the crux of the issue on appeal.

The board ultimately ordered expulsion. The student appealed to the state superintendent pursuant to sec. 120.13(1)(c), Stats., who reversed the expulsion on the ground that there was no competent evidence in the record to support the expulsion. That decision was itself appealed to the circuit court, which reversed the state superintendent, holding that the state superintendent's hearsay ruling was erroneous, primarily because a school board could not compel the attendance of witnesses. While we affirm the circuit court's judgment, we do so on due process grounds and not on the basis of the board's lack of subpoena power. We conclude that the board has subpoena power.

First, we must address the question of mootness, since the student in question has long since been reinstated and has already graduated from high school. Though, as a general rule, appellate courts will not entertain moot questions, they will do so if it is of great public importance. State ex rel. Waldeck v. Goedken, 84 Wis.2d 408, 413, 267 N.W.2d 362, 363 (1978). Clearly, the questions of what measure of due process is required at an expulsion hearing and what powers of review the state superintendent has on appeal are of significant statewide importance and merit attention. We will, therefore, reach the merits of the controversy. ²

Thompson's primary contention is that the Racine school district could not rely on hearsay evidence in an expulsion hearing. We disagree and accordingly affirm the judgment of the circuit court.

This particular question of the use of hearsay in school expulsion hearings is of first impression in Wisconsin. Moreover, a review of other jurisdictions demonstrates that the law is unsettled.

We begin with the United States Supreme Court's discussion of due process in school disciplinary hearings from Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The Goss case involved a short-term suspension ordered by a school principal without a hearing, pursuant to Ohio Rev.Code Ann. § 3313.66 (1972). The Court affirmed the lower court's holding that due process had been denied the suspended students in that they had been denied a hearing.

While Goss is distinguishable on its facts, it is valuable in that it suggests, in dicta, what process is due in cases similar to the one at bar. First, the Court reiterated the principle that, as long as a property deprivation is not de minimis, due process, in some form, must be accorded. Goss, 419 U.S. at 575-76, 95 S.Ct. at 736-37. Since the Court in Goss found due process to attach in a short-term suspension, there can be no question but that it attaches here, a fortiori. "Once it is determined that due process applies, the question remains what process is due." Goss, 419 U.S. at 577, 95 S.Ct. at 738, quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

The Court concluded by stating:

We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.

....

We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. [Emphasis added.]

Goss, 419 U.S. at 583-84, 95 S.Ct. at 740-41.

It should be clear, then, that the procedures followed in the case at bar satisfied and exceeded the process required by the United States Supreme Court for short-term suspensions. The question still remains, however, whether what was accorded was sufficiently "more formal" to suffice for a long-term expulsion.

Some further guidance may be gleaned from a later Supreme Court case, Board of Curators v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). In discussing Goss, the Court emphasized due process as providing a "meaningful hedge against erroneous action." Horowitz, 435 U.S. at 89, 98 S.Ct. at 954. But the Court found that the need for a formal hearing in a disciplinary action was tempered by its cost and its effectiveness as a part of the teaching process. Id.

Clearly, then, the process due a student in a disciplinary action is to be determined by balancing the deprivation at stake with the efficiency possible in the hearing and, we believe, the ability of the school board to implement those protective procedures.

There are a number of federal cases which have addressed the question of the admissibility of hearsay at a disciplinary hearing, but many are distinguishable on their facts, and, in any case, their holdings are mixed. ³

This court is particularly persuaded by the rationale in favor of admitting hearsay as presented in Boykins v. Fairfield Board of Education, 492 F.2d 697 (5th Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1350, 43 L.Ed.2d 438 (1975). ⁴ There, twenty-one black students were subject to disciplinary procedures as a result of a boycott of the school. Ultimately, four were readmitted immediately, eight were readmitted after a week's further suspension, one was suspended for the remainder of the semester and eight were expelled.

At the hearing, the school principal, who had investigated the charges against the students, read statements made by teachers in response to his inquiries. Appellants argued that their expulsions ought not rest upon hearsay. The fifth circuit court disagreed:

There is a seductive quality to the argument--advanced here to justify the importation of technical rules of evidence into administrative hearings conducted by laymen--that, since a free public education is a thing of great value, comparable to that of welfare sustenance or the curtailed liberty of a parolee, the safeguards applicable to these should apply to it.... In this view we stand but a step away from the application of the strictissimi juris due process requirements of criminal trials to high school disciplinary processes. And if to high school, why not to elementary school? It will not do. Basic fairness and integrity of the fact-finding process are the guiding stars. Important as they are, the rights at stake in a school disciplinary hearing may be fairly determined upon the "hearsay" evidence of school administrators charged with the duty of investigating the incidents. We decline to place upon a board of laymen the duty of observing and applying the common-law rules of evidence. [Emphasis added.]

Boykins, 492 F.2d at 701.

We are persuaded, finally, that the hearsay statements from schoolteachers or staff members were admissible. We agree with the fifth circuit's statement that a lay board cannot be expected to observe the niceties of the hearsay rule. Moreover, in the absence of an allegation of bias, we can conceive of no reason why school staff would fabricate or misrepresent statements of this sort. Such statements have, then, sufficient probative force upon which to base, in part, an expulsion.

There can be no question but that the state superintendent's conclusion that hearsay was impermissible was itself a conclusion of law. Questions of law are always reviewable by the court. Bucyrus-Erie Co. v. ILHR Department, 90 Wis.2d 408, 417, 280 N.W.2d 142, 146 (1979). Where the material facts are not in dispute and the only question is one of law, the court may substitute...