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High Court Deadlocks on Fairness of Expulsion Hearing

Ohanian Note: I don't understand how a fight off-campus means a school can expel a student. The whole process seems stacked against students. When are schools going to take the position that we need to fight to keep students, not get rid of them? For 20 years I taught those kids and I used to argue with principals about suspending kids who fought in school, arguing that those kids needed our influence more than most.

Ashley Nichols admitted she fought with another Golden High School student in the parking lot of a bowling alley in April 2000.

That fight and the court battle that followed have expanded the rights of students facing expulsion in Colorado and forced school districts to change their procedures.

"We have had to make changes," said attorney Stu Stuller, who represented Jefferson County Public Schools in the Nichols case and whose law firm represents numerous other school districts in Colorado.

School officials conducting expulsion hearings today, Stuller said, "are more cautions in terms of how we do these things."

"I like to think it's helped other kids," said attorney Richard Borchers, who represented Nichols.

The Nichols case made news Tuesday because it so divided the Colorado Supreme Court that the justices were unable to decide it. By law, that stalemate let stand a 2002 Colorado Court of Appeals ruling that Nichols didn't get a fair hearing before Jeffco Schools expelled her in May 2000 for the rest of the school year.

Nichols and her mother sued.

Jefferson County District Judge Ruthanne Polidori, and later the state Court of Appeals, ruled that the school district wrongly prevented Nichols from presenting two teachers as witnesses to her good character.

The school district, meanwhile, presented the anonymous testimony of numerous students about events leading to the fight - testimony Nichols couldn't counter because the witnesses were unidentified.

That let the school district put on substantial evidence and prevented Nichols from putting on hers, the Court of Appeals said.

The school district argued that, because Nichols confessed, the teachers' evidence of her character was irrelevant.

The Court of Appeals called that argument "disingenuous, as the school district offered substantial evidence despite Nichols' admission."

Besides, the Court of Appeals said, expulsion wasn't mandatory, and the real purpose of the hearing was to determine whether Nichols should be expelled or receive some lesser punishment. In those circumstances, the teachers' testimony about her character mattered.

Stuller said the court rulings mean that, even when a student has confessed to conduct that is grounds for expulsion, a procedural error can invalidate the expulsion.

"This is the first time any court in the country has ever taken that position," Stuller said.

"What it did was provide a clear indication that you can't hide witnesses and can't deny somebody an opportunity to present witnesses at a hearing," Borchers said.

Now the biggest problem is that the Colorado Supreme Court couldn't make a decision in the case, Stuller said. "Important issues regarding the process that due students in expulsion cases remain unanswered," he said.

Borchers agreed: "There are a lot of dangling issues that are still out there in this area which have not been resolved."

Before the Court of Appeals ruling in the Nichols case, Stuller said, students rarely sued when they were expelled from public schools. That changed. "We had three within a month," he said. "And that was just in our office."

Nichols is almost 20 now, with a 14-month-old son, her mother, Kathy Nichols, said Tuesday.

"She's just getting ready to do some part-time work on weekends as a waitress, but she's a full-time mom," Kathy Nichols said.

Ashley Nichols could not be reached Tuesday.

She never returned to high school after her expulsion. She got her General Equivalency Diploma instead.

"With all the publicity and the things that were tied up in court and with the school district, my husband and I didn't feel it was safe to have her go back there," Kathy Nichols said.

She said the court battle was long but was worth it. "To me it was, even if it only serves justice to help someone else and some other child."

The Colorado Supreme Court said Tuesday that Justices Gregory Hobbs, Alex Martinez and Michael Bender agreed that Nichols wasn't treated fairly.

But Chief Justice Mary Mullarkey and Justices Rebecca Kourlis and Nathan Coats sided with the school district.

Justice Nancy Rice did not participate to avoid a potential conflict of interest.

That left the high court evenly divided, 3-3. By law, the lower court's ruling stands when that happens.



— Karen Abbott
High court deadlocks on fairness of expulsion hearing
Rocky Mountain News
2004-01-21
http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_2592089,00.html

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