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Out-of-District Student Entitled to Due Process Before Expulsion

By Robyn Hagan Cain on March 28, 2013 | Last updated on March 21, 2019

In Goss v. Lopez, the Supreme Court held that the Due Process Clause applies to suspension or expulsion from school where a state has conferred a property interest in a public education. Before you kick a kid out of his local public school, he should get notice and a chance to present his side of the story.

But what if the school from which the student is removed isn’t his local public school?

G.C. began attending school in Kentucky's Owensboro Public School District as an out-of-district student in 2005. In 2009, he was caught sending text messages in class. Because this was the last in a series of disciplinary infractions, Superintendent Dr. Larry Vick revoked G.C.'s out-of-district status, barring him from attending Owensboro High School.

G.C. sued on multiple grounds, including denial of due process, but the district court sided with the defendants: Because G.C. attended Owensboro High School at the unfettered discretion of the Superintendent and because he did not reside in that School District, G.C. did not have a property interest in an education within the Owensboro Public School District.

This week, the Sixth Circuit Court of Appeals reversed the district court's due process ruling.

After Goss, the Sixth Circuit waded into the disciplinary due process waters, concluding that a "student faced with expulsion has the right to a pre-expulsion hearing before an impartial trier-of-fact." Several years later, the appellate court added that, as a general rule, the hearing should be given before removal from the school unless the student's presence is dangerous or disruptive." Kentucky has codified these principles, providing the procedures that a school district is required to provide prior to imposing an expulsion.

Here, there was no question that G.C. didn't receive the Kentucky-mandated pre-expulsion hearing. Instead, his due process claim turns on whether he was actually expelled from Owensboro High School.

Given that neither the Sixth Circuit, nor any Kentucky court, has defined the term "expulsion" or interpreted a reciprocal agreement such as that at issue here, the appellate court relied on Opinion of the Attorney General 79-327.

Once a student is permitted to enroll in a nonresident school for a school year, we believe the law applicable to student conduct and the possibility of suspension and/or expulsion under KRS 158.150 comes in to play ... Termination of the privilege of attending a nonresident school during the course of a school year is in fact an expulsion and must be so handled and effected only after a hearing before the 'foreign' board of education.'

Finding that G.C. had proffered evidence that he was expelled from Owensboro High School, and that all students are afforded due process prior to expulsion under Kentucky law -- regardless of their in-district or out-of-district status -- the Sixth Circuit Court of Appeals reversed the district court summary judgment ruling on G.C.'s due-process claim.

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