     IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

BOARD OF EDUCATION OF THE              )
SMYRNA SCHOOL DISTRICT,                )
                                       )
            Appellant,                 )
                                       )
      v.                               )        C.A. No. N18A-03-001 ALR
                                       )
E.D. and DELAWARE                      )
STATE BOARD OF EDUCATION,              )
                                       )
            Appellee.                  )

                         Submitted: September 14, 2018
                          Decided: December 11, 2018

                         MEMORANDUM OPINION

    On Appeal from the Decision of the Delaware State Board of Education
                               AFFIRMED




David H. Williams, Esq., James H. McMackin, III, Esq., and Allyson Britton
DiRocco, Esq., Morris James LLP, Wilmington, Delaware, Attorneys for Appellant.

Valerie A. Dunkle, Esq., Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for Appellee.



ROCANELLI, J.
      This is an appeal from the decision of the Delaware State Board of Education

(“DE Board of Ed”) reversing the expulsion of E.D., a sophomore special education

student at Smyrna High School (“Smyrna High”), which is part of the Smyrna

School District (“School District”). The Board of Education of the Smyrna School

District (“Smyrna School Board”) sought to expel E.D. for an entire academic year

(180 days). The DE Board of Ed correctly concluded that the expulsion decision of

the Smyrna School Board was made in an arbitrary and capricious manner, lacked

substantial evidence to support the discipline imposed, and violated E.D.’s

fundamental due process rights. For the reasons set forth below, the DE Board of

Ed’s decision is affirmed.

              FACTUAL AND PROCEDURAL BACKGROUND

      E.D. was 16 years old and received special education services. On September

19, 2017, E.D. was involved in a physical altercation with another student in a

classroom at Smyrna High. School personnel attempted to intervene and separate

the fighting students. When those efforts failed, the School Resource Officer

(“SRO”) pulled out his taser and pointed it at E.D. who was then handcuffed and

placed under arrest.1 Smyrna High was put on lockdown until additional law



1
  According to the SRO, he deployed his taser to give E.D. “one final chance to
comply with his directives.” While there is a reference in the record to a verbal
threat by E.D. towards the SRO, but there is no record evidence to support a finding
of any threat.

                                         1
enforcement officers arrived and removed E.D. from the building. E.D. was charged

with the misdemeanor offenses of “Resisting Arrest” and “Disorderly Conduct” but

those charges were dismissed in Family Court.

      A so-called “building discipline conference” was held at Smyrna High on

September 22, 2017. This was a 15-minute conference attended by E.D., his

guardian who is his foster mother, and a foster care case worker. During this

conference, E.D. was notified that he was facing disciplinary action and was told

that a hearing would take place.

      On the same day as the building discipline conference, a manifestation

determination meeting also took place. When a student receiving special education

services is facing disciplinary action for alleged misconduct, a manifestation

determination meeting is held to review the incident and the identified disability

from the student’s Individualized Education Program (“IEP”). At the conclusion of

this meeting, E.D.’s IEP team determined that E.D.’s conduct was not a

manifestation of his disability.

      A notice of “Disciplinary Hearing” was then mailed to E.D. who was advised

with his foster mother that he had a right to be present at the Disciplinary Hearing

and to bring witnesses. E.D. was also advised he had a right to legal counsel.

      The Disciplinary Hearing took place on October 12, 2017. The Hearing

Officer introduced herself and explained that the burden of proof was by a


                                         2
preponderance of the evidence.2 E.D was present with his foster mother and foster

care case worker. The School District’s Assistant Superintendent and Smyrna

High’s Assistant Principal were present.

      Although the hearing was transcribed, the record is confused. Documents

were admitted but not clearly identified.3      Similarly, references are made to

individuals without identifying each individual’s role.

      The School District’s Assistant Superintendent and Smyrna High’s Assistant

Principal presented written reports by reading the reports aloud, including a report

from Smyrna High’s Principal recommending expulsion. Although the SRO is not

identified on the transcript cover sheet as one of the persons present, the SRO was

asked if his police report was accurate and he responded “yes, it is.” Other than the

SRO, the persons whose reports were read into the record were not made available

for cross-examination.

      E.D.’s foster mother made a presentation in which she explained that the

Family Court charges had been dropped. While acknowledging that there should be

consequences for her foster son’s behavior, she protested expulsion as too harsh.

E.D.’s foster mother further stated that E.D. “is a good student and, besides this, he


2
  Although the Hearing Officer stated the standard for the burden of proof, the
Hearing Officer did not state which party carried that burden.
3
  For example, a “student information packet” is referenced, but the record does not
reflect what documents were included or whether the packet was given to E.D. and
his foster mother in advance of the hearing.

                                           3
has had no other issues with the school.” E.D.’s foster mother asked that E.D.’s

relative youth and brain development be taken into account. She pleaded that E.D.

be given a second chance. E.D. apologized.

      The Hearing Officer issued a report (“Report”) dated October 13, 2017

recommending the expulsion of E.D. for violations of the Smyrna High School

Student Code of Conduct (“Code of Conduct”) “by fighting, behaving in a disorderly

manner, and resisting arrest.” E.D.’s foster mother was advised by letter dated

October 13, 2017 that the Smyrna School Board “will sit in session on Wednesday,

October 18, 2017 at approximately 7:45 p.m. in the Smyrna School District (John

Basset Moore Intermediate School) to hear the results of the Hearing Officer for

[E.D.] and to inform you of your child’s status in the Smyrna School District.” E.D.

and his foster mother were “invited to attend” but not required to attend.

      Based on the record presented to this Court, it seems that the hearing before

the Smyrna School Board was merely a review of the proceedings before the Hearing

Officer. The record does not include any explanation of the standard of review, only

that the Smyrna School Board “heard the results of the student hearing.” Smyrna

School Board issued a letter dated October 23, 2017 informing E.D.’s foster mother

that E.D. was expelled “for 180 days with educational services to be determined by

the IEP team.” E.D.’s foster mother was not advised how to arrange for alternate

education for E.D. and E.D.’s foster mother was further informed that “[i]n


                                          4
Delaware, no expelled student is permitted to enroll in another public or charter

school for the duration of the expulsion period.”

      E.D.’s foster mother filed an appeal with the DE Board of Ed. After a review

of the entire record, the DE Board of Ed voted to reverse the expulsion, finding the

decision of the Smyrna School Board was arbitrary and capricious, not supported by

substantial evidence, and in violation of the Department of Education due process

requirements.4 The Smyrna School Board now appeals the DE Board of Ed’s

decision to reverse E.D.’s expulsion.

                           STANDARD OF REVIEW

       Appeals from a Board of Education decision may be made to the Superior

Court, pursuant to Superior Court Rule 72(a).5 This Court’s appellate review is

limited to correcting errors of law and determining whether the decision is supported

by substantial evidence.6 Substantial evidence is defined as “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.”7




4
   These requirements were directed by statute and set out by administrative
regulation. 14 Del. C. § 122(b)(26); 14 Del. Admin. C. §616.
5
  Super. Ct. Civ. R. 72(a) (“This Rule shall apply to appeals to the Superior Court
from all commissions, boards, hearing officers under the Personnel Rules for Non-
Judicial Employees, or courts from which an appeal may at any time lie to the
Superior Court to be tried or heard on the record made below.”).
6
  29 Del. C. § 10142(d).
7
  Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966)).

                                         5
      Here, the Court is reviewing the decision of the DE Board of Ed to reverse the

decision of Smyrna School Board. Delaware law provides that the DE Board of Ed

“shall overturn the decision of a local board only if it finds …. that the local board’s

decision was contrary to a specific state or federal law or regulation, was not

supported by substantial evidence, or was arbitrary or capricious.”8 The Delaware

courts have interpreted the statute as requiring that the DE Board of Ed uphold a

decision by a local board imposing punishment of a student unless “such punishment

is so disproportionate to the offense in light of all the circumstances as to be shocking

to one’s sense of fairness.”9 Decisional law has emphasized that the Superior Court

“cannot substitute its judgment for the judgment of the school authorities.”10

Accordingly, if substantial evidence exists to support the DE Board of Ed’s findings,

and the Board has not committed any error of law, the decision must be affirmed.11

                                     ANALYSIS

I. The Decision of the Smyrna School Board Violated Due Process

      As established by the Supreme Court of the United States in Goss v. Lopez, a

student’s entitlement to a public education is a property interest “which may not be


8
  14 Del. C. § 1058.
9
  Jordan v. Smyrna Sch. Dist. Bd. of Educ., 2006 WL 1149149, at *1 (Super. Ct. Feb.
15, 2006) (quoting Warmouth v. Delaware State Bd. of Exam’rs in Optometry, 514
A.2d 1119, 1123 (Del. Super. 1985) aff’d, 511 A.2d 1 (Del. 1986).).
10
   Bd. of Educ. Laurel Special Sch. Dist. v. Shockley, 155 A.2d 323, 327 (Del. 1959).
11
   Jordan, 2006 WL 1149149, at *1; Brumbley v. Bd. of Educ. of Polytech Sch. Dist.,
1998 WL 283378, at *1 (Del. Super. Feb. 18, 1998).

                                           6
taken away for misconduct without adherence to the minimum procedures required

by [the Due Process Clause].”12 “The fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time in a meaningful manner.’” 13 Delaware

has enacted procedures to ensure that public school districts do not interfere with a

student’s right to an education without due process.14

      Relevant to this appeal, the Department of Education affords certain

procedural safeguards for students at expulsion hearings, such as the right “[t]o

cross-examine witnesses.”15 The purpose of procedural safeguards “is to avoid

unfair or mistaken exclusion from the educational process, with all of its unfortunate

consequences.”16 The Court has recognized that there is a great risk of erroneous

deprivation of a student’s interest in a public education when the student is not given

an opportunity to fully develop his or her case through cross-examination of

witnesses.17

      It is clear from the record before this Court that the Smyrna School Board

failed to provide for meaningful cross-examination at the Disciplinary Hearing. The



12
   Goss v. Lopez, 419 U.S. 565, 574 (1975).
13
   Mathews v. Eldridge, 424 U.S. 319, 333 (citing Armstrong v. Manzo, 380 U.S.
545, 552 (1965)).
14
   14 Del. C. § 122(b)(26); 14 Del. Admin. C. §616.
15
   14 Del. Admin. C. §616.10.3.11.2.
16
   Goss, 419 U.S. at 579.
17
   Bd. of Educ. of New Castle Cty. Vocational Tech. Sch. Dist. v. Clark, 1988 WL
47096, at *2 (Del. Super. May 3, 1988).

                                          7
Principal’s recommendation, the police report, and two witness statements were

included in the record upon which the Smyrna School Board based its decision, yet

the Principal and two other witnesses did not testify and were not available to be

cross-examined.18 The DE Board of Ed noted that not one witness to the fight

between E.D. and the other student was present at the Disciplinary Hearing.

      It was fundamentally unfair and a violation of due process for the Hearing

Officer to consider statements of three witnesses without providing the student an

opportunity for cross-examination. The DE Board of Ed correctly concluded that

cross-examination was necessary for the minimum due process required in expulsion

hearings and the Court must not set the correct decision of the DE Board of Ed

aside.19

II. The Decision of the Smyrna School Board was Arbitrary and Capricious

      The scope of judicial inquiry encompasses the adequacy of both the evidence

considered by the decision-making agency as well as the adequacy of the process by

which the relevant evidence and facts were obtained.20 Although judicial review of


18
   As noted previously, the SRO was present at the Hearing when his police report
was read into the record. E.D.’s foster mother was asked if she had any questions
for the SRO.
19
   See Clark, 1988 WL 47096, at *2 (Where serious questions of witness credibility
arose, the Court did not interfere with the DE Board of Ed’s conclusion that the
student’s right to have cross-examination at an expulsion hearing was necessary to
satisfy due process standards).
20
   Harmony Constr., Inc., v. State Dep’. of Transp., 668 A.2d 746, 750 (Del. Ch.
1995).

                                        8
administrative decisions is traditionally deferential, “[i]mplicit in the deferential

‘arbitrary and capricious’ standard of review is the premise that the agency has

employed a decision-making process rationally designed to uncover and address the

available facts and evidence that bear materially upon the issue being decided.”21

      Arbitrary and capricious is usually ascribed to action which is
      unreasonable or irrational, or to that which is unconsidered or which is
      willful and not the result of a winnowing or sifting process. It means
      action taken without consideration of and in disregard of the facts and
      circumstances of the case.22

       The DE Board of Ed appropriately found that Smyrna School Board’s

decision to expel E.D. for an entire academic year is not warranted under Smyrna

High’s own disciplinary policies as set out in the Code of Conduct. E.D. had no

prior incidents involving fighting, and as the DE Board of Ed pointed out, a first-

time fight is not an expellable offense.23 Additionally, the single Code of Conduct

violation cited by the Smyrna School Board in support of the expulsion decision is

applicable only to out-of-school criminal conduct.24 As the incident occurred

entirely within Smyrna High, the DE Board of Ed found that the decision to expel

E.D. on this ground was not supported by the evidence presented at the Disciplinary

Hearing. Moreover, based on the record presented to the DE Board of Ed, the



21
   Id. at 751.
22
   Willdel Realty, Inc., v. New Castle Cty., 270 A.2d 174, 178 (Del. Ch. 1970).
23
   Smyrna High School Student Code of Conduct, School Year 2017/2018 at 12.
24
   Id. at 10.

                                         9
punishment of expulsion for an entire school year proposed for E.D. is “so

disproportionate to the offense in light of all the circumstances as to be shocking to

one’s sense of fairness.”25

        Thus, a review of the record reveals a failure on the part of the Smyrna School

Board to employ a rational decision-making process that considers all of the

available facts and circumstances of the case and to ascribe a proportionate and fair

punishment for E.D.’s actions. Therefore, the DE Board of Ed correctly determined

that the decision of the Smyrna School Board to expel E.D. for a full academic year

was unnecessarily harsh, contrary to the School District’s own policies and,

therefore, arbitrary and capricious.

                                   CONCLUSION

        The Court has examined the record and has determined that the DE Board of

Ed correctly found that substantial evidence did not exist to support the Smyrna

School Board’s decision to expel E.D. for an entire academic year. Moreover, the

DE Board of Ed was correct that the Smyrna School Board acted in an arbitrary and

capricious manner and failed to comply with the due process requirements set forth

by federal and state law.




25
     Jordan, 2006 WL 1149149, at *1 (quoting Warmouth, 514 A.2d at 1123).

                                          10
     The Delaware State Board of Education decision to reverse the expulsion

of E.D. must be and hereby is AFFIRMED.

     IT IS SO ORDERED.

                                                                                                                            Andrea L. Rocanelli
                                         ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                         The Honorable Andrea L. Rocanelli




                                    11
