Packer v. Board of Education

NORCOTT, J.,

concurring. I agree with the majority opinion that General Statutes § 10-233d (a) (1) is constitutional on its face. With less fervor than that opinion, *124however, I also agree with the conclusion that the statute as applied to the named plaintiff (plaintiff) does not support his expulsion from Thomaston High School.

First, I completely agree with the defendant board of education when it argues that the plaintiff was fully aware that his arrest for possession of marijuana, under the circumstances of this case, could possibly subject him to expulsion. Certainly the Thomaston High School student handbook left little doubt as to this.1 Further, the plaintiffs testimony 'at his expulsion hearing evinced the fact that foremost on his mind at the time of his arrest was dismissal from the soccer team and expulsion from school, not necessarily in that order. As the majority aptly notes, the test is whether a person of ordinary intelligence could determine with a reasonable degree of certainty whether the plaintiffs conduct would subject him to expulsion. The student handbook provided the plaintiff with notice that his conduct, under circumstances seriously disruptive of the educational process, would subject him to expulsion. Although the plaintiff was apprised that his conduct violated school policy, what the plaintiff was not apprised of was whether the resulting reaction of the high school would result in a serious disruption of the educational process.

Second, it seems to me that although the record alludes to several instances2 where the defendant perhaps could have supported the conclusion that the plaintiffs off school grounds criminal conduct involving *125a narcotic substance was “seriously disruptive of the educational process” within the meaning of § 10-233d (a) (1), for whatever reasons, the defendant and other relevant school officials did not establish the necessary nexus between the plaintiffs conduct and the disruption of the operations of the high school. Accordingly, I agree with the majority that this vacuum renders the statute unconstitutional as applied to the plaintiff.

Daily administration of public education is the responsibility of state and local school officials, and with that responsibility, school officials possess inherent discretion to proscribe and control student conduct. I write separately specifically to acknowledge the discretion that necessarily must repose in the school board to effectuate an environment conducive to learning. The majority relegates to a footnote the assertion that its opinion does not “suggest that there is no set of circumstances under which possession of illegal drugs off school grounds would markedly interrupt or severely impede the day-to-day operation of a school and, therefore, constitute behavior that is ‘seriously disruptive of the educational process’ as required by § 10-233d (a) (1).” See footnote 25 of the majority opinion. This significant statement merits greater emphasis, lest this case be construed as limiting the discretion of school officials to impose disciplinary action when off campus conduct disrupts the educational process. Had the defendant here “made its case” more substantively with regard to the aforementioned nexus, I would have much more serious disagreement with the majority opinion because of the deference I conclude should be accorded to school authorities, and the restraint I believe this court should exercise in substituting its assessment of what constitutes “seriously disruptive conduct” in today’s academic environment for that of the defendant. Because of the unique facts of the present case, it should not be understood as an invitation *126for every student to challenge disciplinary action imposed for off-campus conduct as a constitutional violation.

It is a well established principle that courts should exercise caution in interfering with school discipline. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 507, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (“[t]he Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials ... to prescribe and control conduct in the schools”); Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968) (“[¡Judicial interposition in the operation of the public school system . . . raises problems requiring care and restraint”); Stephenson v. Davenport Community School District, 110 F.3d 1303, 1306 (8th Cir. 1997) (“we enter the realm of school discipline with caution”); Campbell v. St. Tammany Parish School Board, 64 F.3d 184, 187-88 (5th Cir. 1995) (“public school officials have broad discretion in the management of school affairs and . . . courts should not lightly interfere with the ‘daily operation of school systems’ ”); Thomas v. Board of Education, Granville Central School District, 607 F.2d 1043, 1044 (2d Cir. 1979) (“Public education in America enables our nation’s youth to become responsible participants in a self-governing society. To perform this critical function effectively, professional educators must be accorded substantial discretion to oversee properly their myriad responsibilities.”); Murray v. West Baton Rouge Parish School Board, 472 F.2d 438, 442 (5th Cir. 1973) (“[i]t is clear . . . that school disciplinary codes cannot be drawn with the same precision as criminal codes and that some degree of discretion must, of necessity, be left to public school officials to determine what forms of misbehavior should be sanctioned”); Smith v. School City of Hobart, 811 F. Sup. 391, 393 (N.D. Ind. 1993) *127(“School discipline is not an area in which courts lay claim to any expertise, nor should consider lightly. . . . ‘Because of their expertise and their closest situation— and because we do not want them to fear court challenges to their every act — school officials are given wide discretion in their disciplinary actions.’ ”); Broussard by Lord v. School Board of Norfolk, 801 F. Sup. 1526, 1536 (E.D. Va. 1992) (“The Supreme Court has given great deference to school boards, as in [Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986)]. . . . This Court, too, believes that school boards, school administrators, principals, and teachers must be permitted to govern schools .... The federal courts, ill-suited as they are to second guess decisions of school authorities, should interfere only in the most stringent circumstances.” [Citations omitted; internal quotation marks omitted.]).

We have neither the expertise nor the inclination to assume the micromanagement of student discipline. Schools face student conduct that simply defies a standard response and the statute provides the school board the flexibility to demonstrate that certain conduct meets the criteria for student expulsion. I am loathe to see the judicial system intervene in such a dynamic environment in which it has little expertise. In times that are marked daily with tales of violence and danger in our public schools, we do society no favor by toying with the few tools of discipline left to school authorities.

Nonetheless, for the reasons set forth previously, I concur in the result.

The Thomaston High School student handbook (1997-98) provides in relevant part: “Students are subject to discipline, up to and including suspension and expulsion for misconduct which is seriously disruptive of the educational process and is a violation of a publicized board policy, even if such conduct occurs off school property and during non-school time.

“Examples of off-school conduct that may result in such discipline include . . . [u]se, possession or distribution of illegal drugs. . . .”

See footnote 7 of the majority opinion.