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In re Z.K.

May 17, 2005

IN THE MATTER OF THE EXPULSION OF Z.K. (A04-1617) AND S.K. (A04-1618) FROM ANOKA HENNEPIN INDEPENDENT SCHOOL DISTRICT NO. 11


Minnesota Department of Education.

SYLLABUS BY THE COURT

1. Under Minn. Stat. § 121A.47, subd. 2(f)(1) (2004), of the Pupil Fair Dismissal Act (PFDA), written notice of intent to expel a student must inform the student and parent of the availability of free or low-cost legal assistance.

2. The mere receipt of a copy of the entire PFDA is not sufficient notice of the availability of free or low-cost legal counsel.

The opinion of the court was delivered by: Poritsky, Judge

Reversed and remanded

Poritsky, Judge*fn1

Considered and decided by Minge, Presiding Judge; Wright, Judge; and Poritsky, Judge.

OPINION

Relators S.K. and Z.K. were expelled from respondent school district because they were involved in shooting another juvenile with a BB gun. The school board expelled both relators for periods of one year. On appeal from the Commissioner of Education's order affirming the school board's expulsion order, relators argue that the commissioner's decision must be reversed because (1) the hearing waivers were invalid and nullified the school board's decision; (2) the school district lacks jurisdiction over student acts occurring off school property and outside a school zone; (3) the commissioner's decision was based on insubstantial, conflicting, and inadmissible evidence; and (4) the expulsion decisions were arbitrary and capricious. We conclude that because the parents did not receive proper notice of the availability of free or low-cost legal assistance as required by Minn. Stat. § 121A.47, subd. 2(f)(1) (2004)*fn2, the hearing-waivers were invalid. Therefore, we reverse and remand.

FACTS

This appeal arose from an incident that resulted in the expulsion of two brothers, relators Z.K. and S.K.,*fn3 from Sandburg Middle School (Sandburg) in Anoka County. At the time of the incident, Z.K., and his friend and neighbor B.H. were eighth-grade students at Sandburg, and Z.K.'s brother, S.K., was a sixth-grade student at Sandburg. T.K., the victim in the incident, was S.K.'s classmate.

On the morning of May 11, 2004, Z.K. and S.K. met B.H. in the parent's garage before the school bus arrived. The boys observed T.K., who was waiting at the bus stop, and B.H. suggested that they shoot T.K. with a BB gun. The gun, which belonged to B.H., had been previously left at the brothers' home. One of the brothers got the gun and gave it to B.H. Then one of the brothers called out to T.K. to come over to their house to play basketball. B.H. hid behind the retaining wall with the B.B. gun, and when T.K. arrived, B.H. popped up and pointed the gun at T.K. As T.K. turned and ran back toward the bus stop, B.H. shot the BB gun at T.K., hitting him in the back. B.H. then handed the gun to Z.K. who also shot in the direction of T.K.

Shortly after the incident, the boys boarded the school bus and went to school. Later that day, an unidentified student informed Sandburg Assistant Principal Deb Shepard of the BB-gun incident. Shepard called T.K. into her office, and he admitted that he had been shot with a BB gun that morning. T.K. identified S.K., Z.K., and B.H. as the students involved. Shepard and David Law, another Assistant Principal at Sandburg, called S.K. and Z.K. into Law's office to discuss the morning's incident. Law informed the brothers that the matter was serious, and that if they were comfortable with doing so, he would take their statement. Law then met with each boy individually, and each boy told Law his version of the events while Law typed it on the computer. Each boy then read the statement and signed it.

At the end of the school day on May 11, school officials met with S.K. and Z.K.'s parents to explain the situation. The parents were informed that S.K. and Z.K. each received an initial ten-day out-of-school suspension for their conduct. The parents were also informed that the suspension was "pending possible expulsion." The next day, Doug Hodson, the Assistant Principal of Alternative Programs for the School District, talked with the mother about the situation. During the conversation, the mother asked Hodson if the family should retain a lawyer. According to the mother, Hodson replied that "if [they] knew or had a family friend who was a lawyer, sure," but "not to spend a lot of money on a lawyer because that would probably be a waste since [they] probably would not win against District 11." The mother subsequently shared Hodson's advice with her husband. Hodson, however, denied making the statement.

On May 14, 2004, the family met with Hodson. At the meeting, the parents admitted that their boys "did a stupid thing," and provided Hodson with handwritten notes from S.K. and Z.K. explaining the events of May 11. Hodson then provided the family with letters informing them that the action being recommended by the School District was expulsion of S.K. and Z.K. Hodson advised the family that "the School District administration intended to recommend that [S.K.] be expelled for the remainder of the school year and that [Z.K.] be expelled for one year under probationary conditions, however the [s]chool [b]oard makes the final decision and has the authority to expel each student for a period of up to one calendar year." Hodson also explained that in determining whether to expel the boys, a deciding factor could be where the incident took place. Hodson informed the family that if they disputed the facts, or felt the location of the incident was at issue and the incident did not warrant an expulsion, S.K. and Z.K. each had the right to a hearing before a hearing officer who would review all the evidence and make a recommendation to the school board as to whether S.K. and Z.K. should be expelled. But in response to Hodson's advisements ...


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