Due process required to revoke inter-district transfer

A federal court has ruled that under existing Kentucky law, a school district must provide due process when revoking an inter-district transfer once it has been granted for that school year.

In G.C. v. Owensboro Public Schools, a panel of the U.S. Court of Appeals for the 6th Circuit ruled 2-1 that a student’s due process rights were violated when the school district terminated his inter-district transfer for disciplinary reasons without a hearing after the transfer had already been granted and the child had begun attending school.

In the case, a student identified as G.C. began attending Owensboro Public School District at the start of his 7th grade year in 2005 under a reciprocal agreement with Daviess County Public School District, his district of residence. This agreement is governed by Board Policy 09.125 which provides in pertinent part, “The continued enrollment of non-resident students in the District’s schools is subject to the recommendation of the school Principal and the approval of the Superintendent.”

Per court documents, G.C. began having disciplinary problems during his freshman year at Owensboro High School. In September of that year, G.C. was given a warning for using profanity in class. In November of 2008, G.C. was warned about excessive tardies to class and also disciplined for fighting and arguing in the boys’ locker room. During that same school year, in March, 2009, G.C. walked out of a meeting with the prevention coordinator for the high school.

School officials convened a hearing with G.C. and his parents regarding that last incident and G.C. was placed on probation and given a four-day in-school suspension. In just under a month G.C. was again suspended, this time for yelling and hitting a locker. At the end of the 2008-2009 school year, the school principal recommended to the district superintendent, Larry Vick,  that G.C.’s inter-district transfer not be renewed. Vick chose not to follow that recommendation and instead had a meeting with G.C.’s parents to discuss conditions for G.C.’s continued attendance at Owensboro High School. Per Vick’s testimony, at the meeting the parents were informed that any further disciplinary actions would result in G.C. not being able to continue attending the high school.

With this understanding, G.C.’s parents re-enrolled him at the high school for the 2009-2010 school year. Despite this agreement though, on September 2, 2009, G.C. was caught violating the school’s cell phone policy by texting during class. Based on this incident, the principal recommended to Vick that G.C.’s inter-district transfer privilege be revoked, and Vick agreed. G.C.’s parents were shortly thereafter informed of the revocation and informed that they could appeal the decision. After a meeting with the parents, their attorney, and the superintendent wherein they were informed that the revocation would stand based on the fact that G.C. “had violated the condition of his out-of-district privilege to attend Owensboro High School by texting in class,” the parents filed suit on a number of different grounds, including a denial of due process. The parents lost in federal district court but prevailed before the 6th Circuit.

In analyzing the case, the court began by noting Goss v. Lopez which held that the 14th Amendment’s Due Process Clause applies to suspension or expulsion from school where a state has conferred a property interest in public education. As is true in most if not all states across the United States, in Kentucky, a hearing is required before an expulsion can occur unless the student’s presence is dangerous or disruptive. Where a student is deemed dangerous or disruptive, a hearing is still required, but the student can be suspended from school pending the outcome of the hearing.

Both the state of Kentucky law and Owensboro Public School district regulations have expressly adopted regulation that states that expulsion from school requires a hearing. Here, it is undisputed that G.C. did not receive a hearing; it is disputed whether G.C. was expelled. While G.C.’s attorneys categorized the removal from Owensboro as an expulsion, the district argued what occurred was not an expulsion but a revocation of his right to Owensboro as an out-of-district student.

The lower court decision held that the district’s board policy governing inter-district transfers gave the district unfettered discretion to the superintendent to remove an out-of-district student like G.C. at any time. The 6th Circuit disagreed with this assessment. It drew a bright line between attendance and enrollment. The board policy (see 3rd paragraph above) applies only to enrollment. The court noted that Kentucky distinguishes enrollment from attendance. Enrollment, the court stated, occurs when the student registers at the beginning of the school year. Attendance, rather, is the on-going ability to attend the school once a student is enrolled. Thus, by revoking G.C.’s ability to attend Owensboro Public School, the district had de facto expelled G.C. from his high school and in violation of its own policy had done so without a hearing.

If you believe that your child’s transfer has been terminated unjustly, please contact The Law Office of Gregory R. Branch by emailing gregorybranch@edrightsadvocate.com or phoning the office at (714) 856-1166.