Smith v. Miller

Citation213 Kan. 1,514 P.2d 377
Decision Date11 September 1973
Docket NumberNo. 47028,47028
PartiesGary L. SMITH, a minor, By and Through his natural mother and guardian, Flora Cook, Appellant, v. Don MILLER, President of Board of Education, et al., Appellees.
CourtUnited States State Supreme Court of Kansas
Syllabus by the Court

In a proceeding for judicial review of an expulsion of a high school student under the suspension and expulsion of students' act (K.S.A. Chap. 72, Art. 89), wherein denial of procedural due process was alleged and the relief sought included declaratory judgment, the record on appeal is examined and, as more fully stated in the opinion, it is held:

(1)(a) A student has the right to be notified of the substance of the charges and the name of the principal witness against him prior to the initial hearing in which his expulsion or extended term suspension is proposed; (b) the notice given appellant did not comply with these requirements;

(2) the contention that the examiner failed to render a fair and impartial decision based upon the evidence before him is not sustained;

(3) the failure of the examiner's initial report to include a finding respecting appellant's return to school pending any appeal or during the time allowed for appeal did not constitute prejudicial error;

(4) short term suspension without a hearing and continued suspension or expulsion after hearing and without reinstatement in school pending appeal, pursuant to K.S.A. 72-8902(a)(c), are constitutionally permissible;

(5) (a) when the outcome of a proceeding for expulsion or extended term suspension of a student from school for misconduct is dependent on the credibility of two witnesses (possibly including the student threatened with expulsion) whose statements are directly conflicting, cross-examination is imperative in establishing the truth, absent compelling reasons for dispensing with it; (b) under the circumstances revealed in the record appellant should have been afforded the right to confront and cross-examine the principal witness against him as a matter of due process of law; and

(6) aside from the issue of confrontation and cross-examination mentioned in paragraph (5), the contention that the expulsion was not based on substantial evidence is not sustained.

Stephen J. Blaylock, Legal Aid Society, Wichita, argued the cause and was on the brief for appellant.

William H. Dye, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause and was on the brief for appellees.

HARMAN, Commissioner.

Gary L. Smith, a student, was expelled from school by the board of edcation of Unified School District No. 259, Sedgwick county. Upon judicial review the expulsion was upheld and Gary brings the matter here. Primarily, procedural defects are urged upon appeal.

Brief review of the facts and administrative proceedings should first be made.

On September 11, 1972, four separate assaults upon students occurred in and about the hallways of Wichita West High School. Three of the persons assaulted came either to the school office or the nurse's office to report the assaults and to obtain medical treatment. None of these three could identify his assailant. The fourth student assaulted was Martin W. Clemence. The attack upon him was reported the next morning when his mother telephoned the principal. Later Martin told the principal he knew his assailant by sight but not by name and that the same person had assaulted him the year before. Martin identified a picture of Gary L. Smith which appeared in the 1971-1972 school annual as that of his assailant. The picture was a one inch square photograph of Gary. Gary had been suspended twice for assaults during the 1971-1972 school year, the first coming in the second week of school and the second occurring in February after his readmission for the second semester.

Martin indicated to school authorities that he preferred not to testify in person. Accordingly an affidavit stating the essentials of the assault was prepared, which Martin signed. The affidavit stated that Martin encountered a group of seven to ten black students as he was walking through a corridor. While going through the group he was 'hit by a fist on the right side of (his) face.' The affidavit concluded with this paragraph:

'3. I recognized my assailant, but did not know him by name until I went to the office of the principal of West High School and positively identified Gary Smith as the assailant from looking at the School Annual. Likewise, I am sure that he is the one that assaulted me last year. There is no question in my mind when reviewing the photographs that Gary Smith was my assailant.'

On September 12, 1972, the principal addressed the following letter to Gary's parents:

'This is to inform you that your son, Gary Smith, has been suspended from Wichita High School West for gross misconduct.

'I am also recommending that Gary be expelled for the remainder of the school year. A hearing has been set by Mr. Jim Gates, Director of Pupil Adjustment, Educational Services Building, Room 101, 640 North Emporia, Monday, September 18, 1972, at 10:00 a. m. You are invited to attend this hearing if you so desire. The hearing will be conducted by Mr. Gates or a committee of certified employees which he may appoint. Whether or not Gary is to return to school will be determined at this hearing. He may not return to school under any circumstances until after the hearing.

'We are enclosing a copy of the regulations of the Board of Education covering school procedure, as well as a copy of Chapter 300, 1970 Session, Laws of Kansas.

'Please contact the school office (267-8361) if you have any questions.'

A hearing on the matter was held September 18, 1972, before Examiner Gates, who was coordinator of the department of pupil welfare and attendance for the board of education. Gary and his mother were present but were not represented by counsel. The examiner had before him Martin's affidavit and the principal's testimony as to Martin's identification. Gary's mother voiced complaints that the key witness against him was not present at the hearing.

On September 20, 1972, the examiner approved and adopted the recommendation to expel Gary and so advised Gary's parents by letter. His report contained no finding as to whether or not Gary should be permitted to return to school pending any appeal or during the time allowed for notice of appeal.

Gary, through counsel, appealed to the board of education and requested permission to return to school pending the appeal. On October 3, 1972, the examiner wrote a letter to Gary's parents indicating he should be returned to school and recommending his attendance at the Metro Program for the remainder of the semester. Gary declined this program because it was not a regular school with a normal curriculum and he would also have a transportation problem.

October 12, 1972, Gary's appeal was heard by a hearing officer appointed by the board. At this hearing, which was de novo, the principal and the examiner testified, and Martin W. Clemence's affidavit as well was offered, in behalf of expulsion. Gary testified in his own behalf. He stated he was in the hall at Wichita West en route to his locker on the afternoon in question when he saw a student being struck; he did not think the student looked at him after he was hit; Gary stated he did not strike anyone that afternoon; he was about five or six feet away when the assault occurred; possibly more than seven boys could have been involved in the assault; he did not know the boy who did the striking and had never seen him before; he knew by name only two of the boys who were involved. Gary stated he was accompanied in the hall by a friend. This friend testified and generally corroborated Gary's statements.

Other testimony received at this hearing will be alluded to in connection with the points raised on appeal.

During the hearing the issue of confrontation and cross-examination of the witness against him was raised on behalf of Gary and inquiry was made as to whether the hearing officer would issue subpoenas for the attendance of witnesses. Request was again made for Gary's reinstatement pending final determination.

The hearing officer promptly prepared a written report containing her findings and a recommendation that Gary be expelled for the 1972-1973 school year, which recommendation was approved and adopted by the board on October 16, 1972.

Immediately, appeal to the district court was taken pursuant to K.S.A. 60-2101(a). There additional pleadings were filed in which Gary asserted violation of his rights to due process in the actions taken and he also challenged the constitutionality of certain parts of the Kansas statutes pertaining to school expulsion. He requested injunctive and declaratory relief.

The trial court heard the appeal October 20, 1972, and held that the challenged statutes were constitutional, that Gary had been afforded procedural due process throughout, and there was substantial evidence to support the board's ruling. Relief was denied and the matter is here for review. Although in a sense the case is moot in that the school term for which appellant was expelled ended prior to its submission to this court, despite accelerated action at most stages, nonetheless the appeal will be entertained since a real controversy existed and declaratory relief was sought which included the construction, validity and constitutionality of statutes of statewide interest and importance.

We shall refer to the defendant school board and its members simply as appellees.

At this point mention should be made of legislation enacted in 1970 which as amended now appears as K.S.A. Chapter 72, Article 89, entitled Suspension and Expulsion of Pupils. The first section, K.S.A. 72-8901, provides that a public school board or certain of its designated employees may suspend or expel a pupil guilty of particular misconduct. Grounds specified for such action...

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14 cases
  • State ex rel. Stephan v. Smith, 60643
    • United States
    • Kansas Supreme Court
    • December 15, 1987
    ...the proceeding, and the possible burden on that proceeding are all considerations which must be taken into account.' " Smith v. Miller, 213 Kan. 1, 7, 514 P.2d 377 (1973). This court has held that the essence of due process is protection against arbitrary government action. Baker v. List an......
  • Arnold v. Kemp
    • United States
    • Arkansas Supreme Court
    • July 15, 1991
    ...the proceeding, and the possible burden on that proceeding are all considerations which must be taken into account.' " Smith v. Miller, 213 Kan. 1, 514 P.2d 377 (1973). Pertinent provisions of our constitution are subject to the same analysis. Article 2, § 22 of the Arkansas Constitution pr......
  • Edgington v. City of Overland Park
    • United States
    • Kansas Court of Appeals
    • July 26, 1991
    ...appeal, since the issues presented with respect to the charter ordinance are of statewide interest and importance. See Smith v. Miller, 213 Kan. 1, 5, 514 P.2d 377 (1973) (although school term for which plaintiff was expelled ended prior to argument, appeal nonetheless entertained where rea......
  • Colquitt v. Rich Tp. High School Dist. No. 227
    • United States
    • United States Appellate Court of Illinois
    • August 14, 1998
    ...does not confer subpoena powers to the Board cannot excuse noncompliance with principles of due process. See, e.g., Smith v. Miller, 213 Kan. 1, 14, 514 P.2d 377, 387 (1973). An adjustment is required in those cases where only the witnesses' statements are available, but not the witnesses I......
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