Johnson v . Collins, et a l . CV-02-531-JM 12/04/02 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Johnson, et a l .
v. Civil N o . 02-531-JM Opinion N o . 2002 DNH 211 Rodney C . Collins, et a l .
ORDER
Before the Court for consideration is the Plaintiffs’ motion
for a preliminary injunction to order the School Board of the
Newmarket School District (“School Board”) to readmit Andrew
Johnson as a student at the Newmarket Jr.-Sr. High School (the
“School”). The Plaintiffs, Richard and Maria Johnson (the
“Johnsons”), are the parents of Andrew Johnson (“Andrew”).1 The
Johnsons allege that the School Board expelled Andrew on June 4 ,
2002 without due process for allegedly writing a bomb threat on a
school chalkboard on March 7 , 2002. The Johnsons further allege
that the School Board imposed unconstitutional conditions on
Andrew’s readmission to school in late August 2002, and then
1 Named as Defendants in this action are Rodney C . Collins, individually and in his official capacity as Chief of Police of the Town of Newmarket (“Chief Collins”), the School Board, Denis Joy, in his official capacity as Superintendent of Schools for the Newmarket School District (the “Superintendent”), and the Town of Newmarket. summarily expelled Andrew without due process on October 4 , 2002
after he violated a school computer use policy.
After considering the testimony and other evidence presented
at the hearing, and the relevant authorities, I find that the
evidence supports the Johnsons’ contention that Andrew was
expelled on October 4 , 2002 without due process in violation of
the Fourteenth Amendment to the United States Constitution, and
that he is likely to suffer ongoing irreparable harm absent
injunctive relief. Accordingly, the Plaintiffs’ motion for
interim injunctive relief is granted.
STANDARD OF REVIEW
“The purpose of a preliminary injunction is to preserve the
status quo, freezing an existing situation so as to permit the
trial court, upon full adjudication of the case’s merits, more
effectively to remedy discerned wrongs.” CMM Cable Rep., Inc. v .
Ocean Coast Prop., Inc., 48 F.3d 6 1 8 , 620 (1st Cir. 1995) (citing
Chalk v . U.S. Dist. C t . Cent. Dist. of Cal., 840 F.2d 7 0 1 , 704
(9th Cir. 1988); Am. Hosp. Ass’n v . Harris, 625 F.2d 1328, 1330
(7th Cir. 1980)). Thus, if the court ultimately finds for the
movant, a preliminary injunction provides the court with a method
for preventing or minimizing any current or future wrongs caused
2 by the defendant. CMM Cable Rep., 48 F.3d at 620.
A district court may grant a plaintiff’s request for a
preliminary injunction if the plaintiff can satisfy a four-part
test: (1) the plaintiff will suffer irreparable harm if the
injunction is not granted; (2) the plaintiff is likely to succeed
on the merits; (3) the injury to the plaintiff outweighs any harm
which granting the injunction would inflict on the defendant; and
(4) the public interest will not be adversely affected by the
granting of the injunction. See Ross-Simons of Warwick, Inc. v .
Baccarat, Inc., 102 F.3d 1 2 , 15 (1st Cir. 1996); Narragansett
Indian Tribe v . Guilbert, 934 F.2d 4 , 5 (1st Cir. 1991); Planned
Parenthood League of Mass. v . Belotti, 641 F.2d 1006, 1009 (1st
Cir. 1981). A party seeking injunctive relief must independently
satisfy each of the preliminary injunction factors. Auburn News
C o . v . Providence Journal Co., 659 F.2d 273, 277 (1st Cir. 1981);
Mass. Coalition of Citizens with Disabilities v . Civil Def.
Agency & Off. of Emergency Preparedness of Com. of Mass., 649
F.2d 7 1 , 74 (1st Cir. 1981). In the First Circuit, the key issue
in determining whether injunctive relief should be granted is
whether the plaintiff can demonstrate a likelihood of success on
the merits. See Philip Morris, Inc. v . Harshbarger, 159 F.3d
3 670, 674 (1st Cir. 1998); Ross-Simons of Warwick, 102 F.3d 1 2 , 16
(1st Cir. 1996); Weaver v . Henderson, 984 F.2d 1 1 , 12 (1st Cir.
1993). With this standard of review in mind, the relevant facts
are discussed below.
BACKGROUND
I. School and Town Officials Respond to Bomb Threat
On the afternoon of March 7 , 2002, a bomb threat was written
on a chalkboard in a classroom at the School. The note stated:
“This ones for real. There is a bomb that will explode between 9
am and 1 pm. Have a nice life.” The bomb threat was discovered
on the morning of March 8 , 2002. The police were notified, the
building was evacuated, and the building was searched. The
threat led to the disruption of the entire school day. The high
school students were dismissed for the day. The junior high
school students were sent to other schools.
The police did not find a bomb. However, the investigation
revealed that the classroom where the bomb threat was written had
been vandalized. Computer cables were cut, a utility panel on a
wall was ripped out, and the face cover to an emergency light
panel outside the room was removed. The chalkboard where the
bomb threat was written, a piece of chalk, and an eraser were
4 seized from the School as evidence of the crime.
The police investigation of the incident eventually revealed
that Andrew and two other students were seen wandering in the
school hallways during the approximate time that the bomb threat
was written on March 7th, and had reportedly left the building at
4:30 p.m. On March 1 4 , 2002, an employee in the Superintendent’s
office received an anonymous telephone call implicating Andrew in
the bomb threat.
In an affidavit dated March 1 4 , 2002 submitted to the
Rockingham County Superior Court, Chief Collins stated that he
had been informed by a Newmarket police detective that the State
Laboratory had confirmed that identifiable fingerprints were
found on the chalkboard. P l . Ex. 1 9 . The detective also
indicated that the State Laboratory determined that the prints
that were found were likely to have been by the person who wrote
the bomb threat. Id. The court issued a search warrant
requiring Andrew to submit to fingerprinting by the police. The
Newmarket police executed the warrant after interviewing Andrew
on March 1 5 , 2002.
The State Laboratory’s subsequent comparison of the
fingerprint impressions that were obtained from the evidence and
5 Andrew’s fingerprints revealed no matches. P l . Ex. 1 7 . The
Newmarket Police did not submit fingerprint impressions from
either of the two other students implicated in the incident for
comparison with fingerprint impressions obtained from the
evidence. Nor was any handwriting analysis ever performed to
compare the handwriting in the bomb threat with handwriting
exemplars of Andrew and two other students implicated in the
incident.
On April 2 8 , 2002, Chief Collins obtained an arrest warrant
for Andrew “[f]or the crime of false reports as to explosives and
criminal mischief (RSA 158:38).” Andrew was arrested and taken
into police custody, while he was at school, on April 2 9 , 2002.
The School suspended Andrew that same day.
II. June 4 , 2002 Expulsion
The Johnsons received written notice of the School Board’s
charge against Andrew of writing a bomb threat by letter dated
May 2 0 , 2002. Def. Ex. B . The Superintendent indicated in the
notice that the Johnsons had the right to have hearing before the
School Board deliberated “on whether or not to expel Andrew for
the rest of the school year . . . .” Id. The School Board held
a hearing regarding the incident on June 4 , 2002. Def. Ex. C .
6 By letter dated June 6, 2002, the Superintendent sent a letter to
the Johnsons informing them of the School Board’s decision to
expel Andrew. See P l . Ex. 1 . The Superintendent wrote in
pertinent part:
This is to formally notify you that at a duly posted hearing held on Tuesday, June 4 , 2002, the Newmarket School Board voted to expel your son, Andrew, for the remainder of the school year. You may apply to the School Board this summer for permission to re-enroll in school beginning August of 2002.
The School Board’s decision was that Andrew did commit an act of “gross misconduct” for which the Board may expel a student under RSA 193:13 I I . The gross misconduct being, the act of writing a bomb threat on a chalkboard at Newmarket Jr.-Sr. High School on Thursday, March 7 , 2002, which was discovered on Friday, March 8 , 2002.
Testimony given by the Newmarket Police Department and the Newmarket Jr.-Sr. High School Principal were the factors upon which the decision was based.
P l . Ex. 1 .
III. Readmission to the Newmarket Jr.-Sr. High School
A. Proceedings in the Family Court
After Andrew was arrested, he was criminally charged with
filing a false report of an explosive device and with criminal
mischief. By that time, the Johnsons were aware of the results
of the fingerprint examination performed by the State Laboratory.
The Johnsons urged the School and the Superintendent to readmit
7 Andrew. Maria Johnson testified that the Superintendent told her
that if Andrew was acquitted at trial he would be “morally
obligated to make things right.”
On July 2 2 , 2002, an adjudicatory hearing was held at
Brentwood Family Court. After hearing the evidence submitted,
the court found that the State did not prove its case against
Andrew for writing a bomb threat beyond a reasonable doubt. In
its written decision, the court found that “the State failed to
prove an element of the offense –- anxiety[,] etc. to any
person.” Def. Ex. A . While the court granted Andrew a directed
verdict on the bomb threat charge, it never determined whether
the allegation against him was true. Moreover, it is not
possible to determine based on the record whether or not the
court would have found Andrew responsible for the bomb threat had
the court been forced to determine the merits of the allegation.
The court did find with respect to the matters which were not the
basis of the expulsion that “the State did prove beyond a
reasonable doubt that the juvenile committed the offense of
criminal mischief (02-J-105) as charged.” Id.
B. Johnsons’ Attempt to Have the Expulsion Nullified
After the proceedings in the family court concluded, the
8 Johnsons attempted to convince the School Board to nullify
Andrew’s expulsion. On August 1 5 , 2002, the School Board
formally voted against expunging the expulsion and notified the
Johnsons of that decision. Def. Ex. D. The School Board further
decided to require Andrew “to undergo a complete psychological
examination by an independent evaluator to determine, among other
things, whether the student is a potential danger . . . and is
emotionally prepared to return to school.” Id.
By letter dated August 2 2 , 2002, the Superintendent sent the
Johnsons a confirmatory letter indicating that the School voted
unanimously not to reconsider Andrew’s expulsion and had agreed
to delay consideration of the Johnsons’ request to have Andrew
return to school. Def. Ex. E . The August 22nd letter also
discussed the School Board’s decision to require Andrew to
undergo a psychological examination prior to being permitted to
return to school. Id.
C. School Board Decides to Readmit Andrew
The Johnsons agreed to have Andrew undergo a psychological
examination before the School Board would consider whether to
readmit him. After the examination, Andrew was found to be a
low-risk for any future misconduct.
9 On August 2 7 , 2002, after the new school year had begun, the
School Board held a special emergency meeting to consider whether
to permit Andrew to return to school. Def. Ex. F. The School
Board voted to allow Andrew to return to school pending the
acceptance by Andrew and the Johnsons of stipulations drafted by
the School Board. Among those stipulations was a provision that
“[i]f the student commits any offense for which suspension from
school is the punishment, reinstatement of the expulsion will
occur.” P l . Ex. 5 . Richard Johnson testified that he and Andrew
signed the agreement because they were desperate to get Andrew
back into school. Maria Johnson refused to sign the agreement
because she found the stipulations offensive. A letter agreement
containing the stipulations was signed by Richard Johnson, Andrew
and the Superintendent on August 2 8 , 2002. Id. Andrew was
readmitted on August 2 9 , 2002.
IV. October 4 , 2002 Suspension And Expulsion
A. Violation of Computer Use Policy
The undisputed evidence showed that Andrew attended classes
without incident until October 4 , 2002. On that date, Andrew was
suspended for violating a computer use policy at the Seacoast
School of Technology where Andrew was taking courses in
10 collaboration with the Newmarket Jr.-Sr. High School. Andrew
admitted to seeing a demonstration of a prohibited file on
another student’s computer and then requesting that the other
student provide him a copy. Andrew then saved the file to the
network. Def. Ex. G. Both Andrew and the student who provided
him with the file were suspended from school for one full day.
Because Andrew took courses at the Seacoast School of Technology
in collaboration with the Newmarket Jr.-Sr. High School, Andrew
was simultaneously suspended from his courses at the Newmarket
Jr.-Sr. High School for the day. P l . Ex. 8 .
B. Summary Expulsion
By letter dated October 4 , 2002, the Superintendent informed
the Johnsons that:
In accordance with the agreement signed on August 2 8 , 2002, because Andrew has been suspended from school, the Newmarket School Board has reinstated Andrew’s expulsion from school effective this date.
Andrew was suspended from school for violating the computer use policy at the Seacoast School of Technology, thus he has violated item number three of the agreement.
P l . Ex. 6. Andrew was not afforded a hearing before the
expulsion took effect. By separate letter dated October 4 , 2002,
the Superintendent informed the Johnsons that the School Board’s
11 August 1 5 , 2002 decision not to reconsider Andrew’s expulsion was
final and that the School Board would not participate in any
further discussion related to reconsidering or reversing the
expulsion. P l . Ex. 7 .
DISCUSSION
I. Likelihood of Success on the Merits
A. Section 1983 Claims
Section 1983 creates a cause of action against those who,
acting under color of state law, deprive individuals of “any
rights, privileges or immunities secured by the Constitution and
laws” of the United States. See 42 U.S.C. § 1983; Parratt v .
Taylor, 451 U.S. 5 2 7 , 535 (1981), overruled on other grounds by
Daniels v . Williams, 474 U.S. 327 (1986); Rodriguez-Cirilo v .
Garcia, 115 F.3d 5 0 , 52 (1st Cir. 1997). In order to be held
liable for a violation under § 1983, a defendant’s conduct must
have been a cause in fact of the alleged deprivation. See Monell
v . Dep’t of Soc. Serv., 436 U.S. 6 5 8 , 692 (1978); Soto v . Flores,
103 F.3d 1056, 1061-62 (1st Cir. 1997).
The premise of the Johnson’s § 1983 claim is that the
defendants, acting under color of state law, wrongfully expelled
Andrew and thereby denied him a liberty interest in a free public
12 education. Although the Johnsons have appealed the School
Board’s decision with respect to the June 4th expulsion to the
State Board of Education, they need not exhaust their
administrative remedies before bringing an action in federal
court under § 1983. See e.g., Parker v . Grand Hyatt Hotel, 124
F. Supp. 2d 7 9 , 86 (D.D.C. 2000); Cook v . Edwards, 341 F. Supp.
307, 310 (D.N.H. 1972).
B . Due Process Claims
States are not obligated under the United States
Constitution to maintain a public school system. Goss v . Lopez,
419 U.S. 565, 574 (1975); San Antonio Indep. School Dist. v .
Rodriguez, 411 U.S. 1 , 35 (1973). But when a state elects to
provide free education to all youths, as in New Hampshire, the
state is “constrained to recognize a student’s legitimate
entitlement to a public education as a property interest which is
protected by the Due Process Clause and which may not be taken
away for misconduct without adherence to the minimum procedures
required by that Clause.” Goss, 419 U.S. at 574. Thus, while
the states possess the authority to prescribe and enforce
standards of conduct in schools, that authority must be exercised
consistent with constitutional safeguards. Id.
13 In Goss, the Supreme Court established standards that school
boards must follow to meet the requirements of the Due Process
Clause in connection with short-term suspensions of ten days or
less. The Court stated, “[a]t the very minimum, . . . , students
facing suspension and the consequent interference with a
protected property interest must be given some kind of notice and
afforded some kind of hearing.” Goss, 419 U.S. at 579. The
Court further clarified that students must “be given oral or
written notice of the charges against him and, if he denies them,
an explanation of the evidence the authorities have and an
opportunity to present his side of the story.” Id. at 581. The
reason for these prerequisites is that the Due Process Clause
“requires at least these rudimentary precautions against unfair
or mistaken findings of misconduct and arbitrary exclusion from
school.” Id.
The Supreme Court expressly stated in Goss that it only
addressed the due process requirements for short suspensions that
do not exceed 10 days. 419 U.S. at 584. The Court stated that
“[l]onger suspensions or expulsions for the remainder of the
school term, or permanently, may require more formal procedures.”
Id. The Supreme Court has never addressed the specific due
14 process requirements of long-term suspensions and expulsions.
The First Circuit recognized in Gorman v . Univ. of Rhode
Island, 837 F.2d 7 , 13 (1st Cir. 1988), that the federal courts
have uniformly held in student discipline cases that “fair
process requires notice and an opportunity to be heard before the
expulsion or significant suspension of a student from a public
school.” Courts have not, however, required that a school
disciplinary hearing resemble a traditional common law trial in
order to be deemed fair. Id. at 1 4 . “Rather, on judicial review
the question presented is whether, in the particular case, the
individual has had an opportunity to answer, explain, and defend,
and not whether the hearing mirrored a common law criminal
trial.” Id. Determining the extent of procedural protections
that are due requires the court to weigh the student’s interest
in completing his education against the state’s interest in
preserving its limited resources for its primary function of
providing education. See id., citing Matthews v . Eldridge, 424
U.S. 319, 334-35 (1976).
In Carey on Behalf of Carey v . Maine School Administrative
District # 1 7 , 754 F. Supp. 906, 919 (D. Maine 1990), the district
court enumerated seven minimum requirements that must be observed
15 in student disciplinary hearings in order to assure the requisite
balance between the substantial interests of the student and the
state:
(1) The student must be advised of the charges against him;
(2) the student must be informed of the nature of the evidence against him;
(3) the student must be given an opportunity to be heard in his own defense;
(4) the student must not be punished except on the basis of substantial evidence;
(5) the student must be permitted the assistance of a lawyer in major disciplinary hearings;
(6) the student must be permitted to confront and to cross-examine the witnesses against him; and
(7) the student has the right to an impartial tribunal.
Carey, 754 F. Supp. at 919, quoting Keene v . Rodgers, 316 F.
Supp. 2 1 7 , 221 (D. M e . 1970). I am persuaded that these seven
requirements strike the appropriate balance between the competing
interests of the parties in this case.
For the reasons that I address herein, I find that the
Johnsons are likely to succeed on the merits of their due process
claim for the following reasons: (1) the School Board’s notice of
its intended action in response to the bomb threat charge was
16 inadequate; (2) the June 4 , 2002 hearing on the bomb threat
charge provided the Johnsons with no meaningful opportunity to
cross-examine the witnesses against Andrew; and (3) the School
Board summarily expelled Andrew on October 4 , 2002 without
affording him a hearing.
1. Lack of Adequate Notice
From the evidence presented at the injunction hearing, I
find that the Johnsons are likely to show that the School Board
did not provide adequate notice that the School Board sought to
permanently expel Andrew from the School on June 4 , 2002. In the
notice of charges sent by the Superintendent, the Johnsons were
informed that the School Board would deliberate whether to expel
Andrew for the remainder of the school year. See Def. Ex. B .
The Superintendent also informed the Johnsons that Andrew had
been expelled for the remainder of the school year in the School
Board’s written decision. See P l . Ex. 1 . The testimony at the
injunction hearing showed that less than three weeks of school
remained in the school year when the School Board made its
decision.
In response to the instant motion for a preliminary
injunction, the School Board contends that the June 4 , 2002
17 expulsion was actually a permanent denial of Andrew’s right to
attend school.2 I find that the notice that Andrew was expelled
“for the remainder of the school year” could reasonably have
affected the Johnsons’ decision whether to be represented by
counsel at that hearing, and the Johnsons’ decision whether to
immediately appeal the School Board’s decision.
2. Denial of Right to Cross-Examine Witnesses
I find that the hearing on the June 4 , 2002 expulsion was
constitutionally deficient because the Johnsons were not
2 The relevant New Hampshire statute, RSA 193:13, does not define the term “expulsion.” The Board of Education’s Administrative Rules with respect expulsions are contradictory. N.H. Code Admin. R. Ed. 317.02(a) defines the term “expulsion” to mean: “the permanent denial of a pupil’s attendance at school for any of the reasons listed in RSA 193:13, II and III. But the disciplinary procedures categorize expulsion as a “level of discipline” that shall be “for a period determined in writing by the board . . . .” N.H. Code Admin. R. Ed. 317.04(a)(3); see also, N.H. Code Admin. R. Ed. 317.04(i) (“The decision shall state whether the student is expelled and the length of the expulsion.”), and N.H. Code Admin. R. Ed. 317.04(j) (“A statement of the time period for which the student is expelled and any action the student may take to be restored by the board). The regulations clearly provide that a school board must indicate the time period of any expulsion. Regardless of the School Board’s intent, the School Board did, in fact, notify the Johnsons that Andrew was suspended for a period of time, namely, for the rest of the school year. For the purposes of this Order, I find that the School Board’s notice of its contemplated action, and its letter of June 6, 2002 informing the Johnsons of its decision, did not provide adequate notice that the School Board sought to permanently deny Andrew the right to attend school.
18 permitted to cross-examine the witnesses against Andrew at the
hearing on the initial expulsion. Although the right to examine
witnesses need not have been in compliance with the rules of
evidence, and unlimited cross-examination is not an essential
requirement of due process in school disciplinary cases,3 the
School Board’s hearing deprived the Johnsons of any meaningful
opportunity to defend against the charges against Andrew.
The School Board stated in its written decision that the
factors upon which the decision was based was the testimony given
by the Newmarket Police Department and the Newmarket Jr-Sr. High
School Principal. The evidence at the injunction hearing showed
that the testimony that the school board relied upon denied the
Johnsons any opportunity to cross-examine the witnesses against
them.
The Superintendent testified at the injunction hearing that
Captain Cyr, a Newmarket Police Officer, testified at the hearing
on behalf of the Newmarket Police Department. Captain Cyr
informed the School Board what other students, implicated in the
crime, told the police during interviews. This was hearsay
testimony that deprived the School Board of any opportunity to
3 Gorman, 837 F.2d at 1 6 .
19 consider the credibility of the student’s testimony for
themselves. It is also obvious that the School Board was far
more likely to credit these statements when relayed from a police
officer as opposed to if the students were required to give live
testimony. Not only was the police officer’s testimony merely
hearsay, however, from the evidence at the injunction hearing it
became apparent that Captain Cyr was not even present at the
interviews of the other students.4 That made Captain Cyr’s
testimony double hearsay. He was only able to testify as to what
he learned from other officers about what the witnesses said and
he did not himself have an opportunity to weigh the credibility
of the witnesses while they gave their statements.
Even more significantly, the students who gave the
statements to the police were themselves implicated in the
alleged crimes and were given immunity in exchange for their
testimony against Andrew. In particular, the other students most
likely to have been the author of the bomb threat had an obvious
motive to divert attention away from themselves and onto Andrew.
4 The Court has reviewed the transcript of the adjudicatory proceedings in the Brentwood Family Court. Captain Cyr, the officer who testified before the School Board on June 4 , 2002, is never mentioned as having been present at the police interviews of the other two students implicated in the incident.
20 In addition to Captain Cyr’s double hearsay testimony,
Deborah Brooks, the School Principal, was not even present during
the hearing. She was permitted to submit tape-recorded comments,
which gave the Johnsons absolutely no opportunity for cross-
examination.
In the instant case, the deprivation of a meaningful right
to cross-examination witnesses is plainly apparent based on the
evidence presented at the injunction hearing. Accordingly, I
find that the Johnsons are likely to succeed on the merits of
their claim that they were deprived of due process because they
were not permitted a fair opportunity to challenge the validity
and weight of the evidence against Andrew. This deprivation
likely violated the Due Process Clause of the Fourteenth
Amendment and a specific Administrative Rule of the New Hampshire
Board of Education which provides that “[d]uring the hearing, the
pupil, parent, guardian, or counsel representing the pupil, shall
have the right to examine any and all witnesses.” N.H. Code
Admin. R. Ed. 317.04(d)(3)(g)(5).
3. Expulsion Without a Hearing
The School Board’s decision to summarily expel Andrew on
October 4 , 2002 likely violated his constitutional right to due
21 process in that he was not afforded any hearing prior to the
expulsion. The summary expulsion was also contrary to the N.H.
Code Admin. R. Ed. 317.04(d)(3)(a), which provides that a formal
hearing shall be held before any expulsion.
The School Board argues that the letter agreement containing
stipulations for Andrew’s readmission to School provided adequate
justification for expelling Andrew without a hearing. The terms
of the stipulation provide, however, that “[i]f the student
commits any offense for which suspension from school is the
punishment, reinstatement of the expulsion will occur.” P l . Ex.
5.
I find the School Board’s argument unpersuasive for three
reasons. First, I have already determined that the Johnsons are
likely to succeed on the merits of their claim that the June 4 ,
2002 hearing was constitutionally deficient. Second, the
stipulation is ineffectual as a basis for reinstating the June 4 ,
2002 expulsion in October 2002 because by the express terms of
the School Board’s written decision the June 4th expulsion was
for the remainder of the previous school year, which ended in
June 2002. The School Board could not reinstate an expulsion
that already expired. Third, even if the stipulation were valid,
22 it contains no express waiver of Andrew’s right under the United
States Constitution, and the New Hampshire Board of Education’s
Administrative Regulations (N.H. Code Admin. R. Ed.
317.04(d)(3)(a)) to have a hearing before the expulsion would
take effect.
For the purposes of the Johnsons’ motion for a preliminary
injunction, I find that the Johnsons have demonstrated a
significant likelihood of success on the merits of their claim
that Andrew was deprived of a liberty and property interest in
his right to attend a free public school without due process of
law.5
5 The Johnsons further allege that Andrew was deprived of an impartial and independent decision-maker because the School Board was intimidated by Chief Collins. Evidence was presented at the injunction hearing suggesting that the Chief Collins was angered because the School Board considered significantly cutting back or entirely eliminating funding for a student resource officer in January 2002. P l . Ex. 1 6 . At the time, Richard Johnson was the Chair of the School Board. An unidentified individual warned the Superintendent to drive carefully in Newmarket because the police “were watching” and looking for an opportunity to retaliate. Id. The student resource officer was retained in the budget. Because I find that the Johnsons are likely to establish that Andrew’s due process rights were violated for the reasons previously stated, I do not consider the merits of the bias allegation here. I also note that since the motion for preliminary injunction did not involve Defendant Collins his evidence had neither been heard nor considered.
23 II. Irreparable Harm
In order to be entitled to a preliminary injunction, the
Johnsons must demonstrate that Andrew is likely to suffer
irreparable harm absent relief. Irreparable harm is a
substantial injury that is not accurately measurable or
adequately compensable by money damages. Ross-Simons of Warwick,
102 F.3d at 18-19; Auburn News Co., supra, 659 F.2d at 277;
Sierra Club v . Larson, 769 F. Supp. 4 2 0 , 422 (D. Mass. 1991).
“To establish irreparable harm there must be an actual, viable,
presently existing threat of serious harm.” Sierra Club, 769 F.
Supp. at 422 (citing Massachusetts Coalition, supra, 649 F.2d at
74).
The value of a free public education is beyond dispute. The
United States Supreme Court stated in Brown v . Board of
Education, 347 U.S. 483 (1954), that “education is perhaps the
most important function of state and local governments . . . .
It is required in the performance of our most basic public
responsibilities . . . . it is the very foundation of good
citizenship.” Id. at 493. I find that the Johnsons have made an
adequate showing that Andrew is likely to suffer irreparable harm
absent injunctive relief if he continues to be deprived of an
24 education during the pendency of this lawsuit.
The evidence shows that Andrew was not given credit for
completion of the 10th grade following his expulsion on June 4 ,
2002. While Andrew was conditionally readmitted on August 2 9 ,
2002, he was summarily expelled on October 4 , 2002, and has not
participated in any classes since through the date of the
preliminary injunction hearing, held on December 2 , 2002. The
standard track for a trial on the merits in this Court is one
year, which means that it is reasonable to expect that a final
decision in this matter would not be reached until months after
the beginning of the next school year. With each passing school
year, the amount of time left for Andrew to complete a free
public education before attaining 21 years of age diminishes. By
statute, the right to a free public education in New Hampshire
expires after a student reaches 21 years of age. See N.H. RSA
193:1-c, I (the right of access to public school programs does
not extend to any pupil who has attained the age of 2 1 ) . The
loss of Andrew’s right to a free public education, and its likely
impact on his future opportunities, is not accurately measurable
or adequately compensable by money damages.
25 III. Balance of the Hardships
I must next consider the balance of the hardships to the
parties in granting an injunction. The Court is mindful that the
School Board was grappling with a difficult issue in determining
how to respond to the bomb threat, and that the School Board
claims that it acted in good faith to enforce school rules. I
find, however, that the balance of the hardships weighs in favor
of the Plaintiffs. The relative cost to Andrew in terms of his
additional loss of time in school outweighs the Defendants’
interest in continuing Andrew’s expulsion during the pendency of
this litigation, particularly in light of the Plaintiffs’ showing
of likelihood of success on the merits.
IV. Affect on the Public Interest
The School Board argues that the granting of an injunction
will impair the school’s ability to enforce its rules through
fair disciplinary action. The School Board also argues that it
relied in good faith on the investigation of the Newmarket Police
Department in reaching its conclusion that Andrew was responsible
for the bomb threat. In contrast, the Johnsons contend that the
public interest weighs in favor of requiring the Newmarket School
District to afford students due process prior to depriving them
26 of a liberty and property interest in a free public education.
I find that the public interest will not be adversely
affected by the granting of an injunction. In making my
determination I find it significant that the School Board made no
showing that Andrew poses a danger to the students or staff at
the School.
CONCLUSION
For the reasons set forth above, the Plaintiffs’ request for
a preliminary injunction seeking an order requiring the School
Board of the Newmarket School District to readmit Andrew to the
Newmarket Jr.-Sr. High School is granted.
It is hereby ordered that pending a decision on the merits
of this action, or further order of this Court, Andrew Johnson
shall be readmitted to the Newmarket Jr.-Sr. High School
commencing on Monday, December 9, 2002. The Defendants, and
their officers, agents, servants, employees, and attorneys, and
any person acting in concert with them who receive actual notice
of this Order, are enjoined from directly or indirectly
preventing Andrew Johnson from attending classes at the Newmarket
Jr.-Sr. High School based either in whole, or in part, on the
School Board’s June 4 , 2002 expulsion decision.
27 The School Board and the School are further ordered to make
such accommodation as is necessary to enable Andrew to complete
the 10th grade, and to get caught up in his course work for this
semester.
James R. Muirhead United States Magistrate Judge Date: December 4 , 2002
cc: Paul McEachern, Esq. Gordon B . Graham, Esq.