ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:
MICHAEL D. SEARS ROBERT L. MEINZER, JR.
JASON M. MASSARO St. John, Indiana
CHERYL A. FROEHLICH
JULIE M. SLAVENS
Indiana School Boards Association
IN THE COURT OF APPEALS OF INDIANA
LAKE CENTRAL SCHOOL CORP., ) BOARD OF TRUSTEES, JOHN DEVRIES, ) NANCY GRAY, HOWARD MARSHALL, ) DEBRA PHELPS, MARGARET CLARK, ) DR. JANET EMERICK, DR. NIKKI ) TSANGARIS, AND SCOTT GRABER, ) ) Appellants-Defendants, ) ) vs. ) No. 45A04-0105-CV-227 ) ANTHONY SCARTOZZI, ) RICK SCARTOZZI and LINDA SCARTOZZI, ) ) Appellees-Plaintiffs. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable William E. Davis, Judge
Cause No. 45D02-0103-CP-132
DECEMBER 27, 2001
OPINION - FOR PUBLICATION
RATLIFF, Senior Judge
Ind. Const. art. I, § 12 (emphasis supplied).
While Osteens claim was based on the Fourteenth Amendment to the United States Constitution, Article 1, Section 12 of the Indiana Constitution has been construed by the courts of our state as analogous to the federal due process clause. Reilly, 666 N.E.2d at 444. Therefore, cases interpreting the federal constitution provision are useful in interpreting our state constitution, Lake of the Woods v. Ralston, 748 N.E.2d 396, 404 (Ind. Ct. App. 2001), trans. denied. In fact, our supreme court in Carlberg remarked that the analysis of claims under the Due Process Clause and the Due Course of Law Clause was the same. 694 N.E.2d at 241. See footnote The test for determining how much process is due the public school student in disciplinary proceedings was set forth by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) and has been applied in numerous student disciplinary cases, including Osteen. The test requires consideration of three factors: (1) the cost of the additional procedure sought; (2) the risk of error if it is withheld; and (3) the consequences of error to the person seeking the procedure. Osteen, 13 F.3d at 226.
Mathews answered whether a social security recipient was entitled to certain procedural protections before termination of benefits. 424 U.S. 319 (1976). After setting forth the three factors courts should consider in deciding whether an administrative procedure violated procedural due process, the U.S. Supreme Court held that the recipient was not entitled to an evidentiary hearing before termination of the recipients benefits. Id. at 334-35, 349. The Seventh Circuits balancing of these factors in Osteen is sound, and the same questions of utility are present in this case. In the end, having attorneys fully participate in expulsion meetings is not worth the cost of the marginal benefit. Moreover, whether there is any marginal benefit is questionable.
We turn now to our analysis of the three factors as they relate to the case at bar. First, the fiscal burden on the school administration outweighs the benefit of allowing counsel at the expulsion hearings. As was noted in Newsome v. Batavia Local School District, 842 F.2d 920, 925-26 (6th Cir. 1988), school boards and administrators are charged with a variety of responsibilities that are critical to the effective operation of our public schools. These include, but most definitely are not limited to, meting out punishment for violations of school rules, hiring and firing of teachers and other school personnel, planning curricula, meeting the dietary and health needs of the student population, supplying and maintaining school buildings, and providing extra-curricular activities. Id. Moreover, the school systems carry out these duties within the strict confines of an increasingly tighter budget. Id. Furthermore, to saddle school boards and administrators with the burden of overseeing a quasi-judicial proceeding is to require of them that which they are ill-equipped to perform. Id. The detriment that will accrue to the educational process in general by diverting school board members and school administrators attention from their primary responsibilities in overseeing the educational process to learning and applying the common law rules of evidence simply outweighs the marginal benefit that will accrue to the fact-finding process by allowing [students attorneys to participate in expulsion meetings]. Id. Additionally, we realize that in many, if not all, school disciplinary cases, the school is represented by one of the school administrators. If it is determined that due process requires that students be represented by an attorney in expulsion meetings, it logically follows that school systems will be forced to pay legal counsel for representation at the meetings, as well.
Thus, having attorneys fully participate in such meetings would end in the partial (or perhaps full) abdication of student discipline to lawyers. One can easily imagine a school system retaining lawyers and instituting quasi-judicialized procedures to meet the demands and objections of the students advocate at expulsion meetings. As Aman and Mayton keenly observe: When due process converts agency processes into trial-type processes, decisional responsibility tends to shift toward those competent in those processes (lawyers) and to move away from those competent with respect to substance [in this case, teachers and school administrators]. Alfred C. Aman, Jr., & William T. Mayton, Administrative Law 180 (1992).
The second factor concerns the risk of error if counsel is not permitted to attend the expulsion meeting. Lake Centrals current procedure for expulsion meetings precludes the students attorney from attending the meeting with the student. The student may, as Anthony did, consult with an attorney prior to the meeting. In fact, Anthonys attorney was allowed to sit outside the meeting room for consultation with Anthony and/or his parents during the course of the meeting. Moreover, Anthony had the right to appeal the expulsion examiners decision, which he did. See Ind. Code § 20-8.1-5.1-13.
This Court has stated that due course of law involves a fair proceeding in which the fundamental requirements of due process are notice and an opportunity for hearing appropriate to the nature of the case. Reilly, 666 N.E.2d at 444; Carlberg, 694 N.E.2d at 241. By fair proceeding we mean that the person adversely affected is afforded the opportunity to respond, explain, and defend. Reilly, 666 N.E.2d at 444. However, this Court has cautioned that due process does not guarantee any particular form of procedure; rather it is only intended to protect substantial rights. Id. To this end, courts have generally refused to require the traditional formalities of legal proceedings in school suspension and dismissal hearings. Id. By recognizing such a right of students to have a lawyer present who is permitted to examine or cross-examine witnesses, to submit and object to documents, to address the tribunal, and otherwise to perform the traditional function of a trial lawyer would force student disciplinary proceedings into the mold of adversary litigation with its formal rules and procedures. Osteen, 13 F.3d at 225. However, when a student appears without counsel, as Anthony did here, the student, administrators and other participants of the expulsion meeting can concentrate on the student and the issues at hand without the focus being shifted to the attorneys and their legal maneuvering. As a result, the proceeding is less adversarial and less formal. As a panel of this court explained in Reilly:
To further escalate the formality and adversity of the suspension process may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as a part of the teaching process. Due process thus requires not an elaborate hearing before a neutral party, but simply an informal give-and-take between student and disciplinarian which gives the student an opportunity to explain his version of the facts.
666 N.E.2d at 444 (internal citations omitted). Thus, we believe the risk
of error to be slight in an informal give-and-take setting where the student
is given a chance to explain and defend his or her actions, particularly
when balanced against the cost to the school system of a more formal,
Finally, we look to the consequences of error to the person seeking the procedure. We do not believe the consequence for Anthony - a two-semester, non-permanent expulsion - entitles him to the procedural protections during the expulsion meeting thought necessary in litigation. Additionally, we note the possibility that Anthony could attend another school during the period of suspension from Lake Central. Further, we reiterate that although Lake Central does not permit attorneys to be present for the expulsion meeting, students such as Anthony do have the right to appeal the schools decision and be represented by counsel at such appeal hearing.