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A 6th Circuit panel has ruled that District Judge James H. Jarvis was too hasty in holding that the Knoxville, Tenn., Board of Education violated the constitutional rights of a high school junior when it expelled him under its “zero tolerance” policy for possessing a knife, even though he may not have been aware that a friend had left the knife in his car. The panel said that Jarvis should have given the board the opportunity to present evidence that the expulsion of Dustin W. Seal was a rational decision. It might be able to do so if, for instance, it had reason to believe that Seal knew the knife was in the car while it was parked on school property, the panel said. The case is Seal v. Morgan, Nos. 99-5090/5600. Although the board succeeded in overturning Jarvis’ grant of summary judgment, it did not achieve its larger goal of vindicating its zero tolerance policy. Two of the three panel members, Judges Ronald Lee Gilman and David A. Nelson, rejected the board’s argument that it could expel Seal regardless of whether he had knowledge (“scienter”) that the knife was in his car. Writing for the two, Gilman said that “[S]uspending or expelling a student for weapons possession, even if the student did not knowingly possess any weapon, would not be rationally related to any legitimate state interest. No student can use a weapon to injure another person, to disrupt school operations, or, for that matter, any other purpose if the student is totally unaware of its presence.” Judge Richard F. Suhrheinrich dissented, arguing, “The Columbine High School massacre and other school shootings have, unfortunately, become part of the national consciousness. The Knox County schools themselves are not immune from the threat of violence. Their disciplinary records show 20 injuries as a result of knives and sharp weapons in the three years preceding Seal’s expulsion. Given this national and local landscape of violence, it is perfectly rational to establish a strict zero tolerance policy to ensure students’ safety.” Judge Suhrheinrich added that even if scienter were required, under the facts of this case the board could impute scienter to Seal: “Because Seal undisputedly possessed the knife, the board could reasonably presume that Seal knew it was in his car. At this point, the burden of persuasion shifted to Seal to explain why he did not know the knife was there. … Seal failed to meet that burden here.” BACKGROUND According to the panel, on October 30, 1996, Ray Pritchert, one of Seal’s friends who also attended Powell High School in Knox County, showed Seal a knife that Pritchert was carrying because of a dispute with another Powell student. Seal and Pritchert were not at school at the time. While Seal was driving a group of friends in his mother’s car, Pritchert placed the knife on the floorboard behind the driver’s seat. After Seal left the car, another friend put the knife in the glove compartment. According to the panel majority, “Whether Seal actually saw the knife when it was on the car’s floorboard, or at any other point when the knife was in his mother’s car, is not entirely clear from the record. It is, however, uncontroverted that Seal knew that Pritchert had been carrying a knife around, and that Pritchert had the knife on his person when he was in the car … .” The following night, the panel said, Seal drove Pritchert to their band practice at Powell High School in the same car. Because other members of the band reported seeing Seal and Pritchert drinking, the school’s vice principal asked to search the car, and Seal consented. The vice principal found two cigarettes, prescription medication, and the knife. The vice principal asked Seal to explain in writing why the knife was in the glove compartment. Seal wrote: “The knife was there because [Pritchert's] ex-girlfriend’s boyfriend had been following us around with a few of his friends so we were a little uneasy.” The panel’s two sides took differing views of this written statement, the dissent characterizing it as a confession, while the majority wondered, “Was it a confession … or was it an after-the-fact deduction (as Seal insists) by Seal about how and when the knife must have gotten into the glove compartment?” Seal’s principal held a disciplinary hearing and ordered him suspended pending expulsion. The board’s hearing officer upheld the suspension after a second hearing. The full board conducted a third hearing, approved the suspension, and ordered that Seal be expelled for one year. According to the panel majority, one board member defended the zero tolerance policy by telling Seal, “[W]e always have to be consistent in sending a clear message to students … . You are responsible for what’s in your car and that’s where I’m torn but I would have to say that you have to be held responsible as a driver for what’s in your car. And that’s a problem you’re going to have to deal with.” The majority had no doubt that the three hearings afforded Seal his procedural due process rights; the real question was whether his substantive due process rights were violated because “the board’s ultimate decision was irrational in light of the facts uncovered by the procedures afforded him.” Although the panel did not mention this fact, the board also referred Seal’s case for possible criminal prosecution. According to a March 5, 1997, Knoxville News-Sentinel story, a juvenile judge acquitted Seal of possession of a weapon with intent to go armed. In April 1997, Seal’s father brought this Section 1983 claim. THE IMPACT ON SEAL Tommy K. Hindman, Seal’s attorney, told American Lawyer Media News Service that Seal’s expulsion “has flipped his life upside down.” According to Hindman, Seal was a good student who hoped to go on to the University of Tennessee after graduation and play in that school’s band. Because the one-year expulsion came in November, it effectively forced Seal to miss three semesters of school, he said. Seal never returned to school, and now plans to take the GED. Hindman said that he wasn’t surprised that the panel overturned Judge Jarvis’ summary judgment in favor of Seal and is optimistic about Seal’s prospects at trial. “All we’ve ever wanted is our day in court,” he said. “I’m more than pleased that the panel didn’t summarily dismiss our claim against the board, as they might have. The facts are so strong that one judge granted summary judgment. All the more reason why a jury would find this to be an egregious violation.” Hindman said that he — and Judge Jarvis — were particularly disturbed that the board would not reconsider the expulsion after a juvenile judge acquitted Seal of criminal charges. According to Hindman, the juvenile judge “took about a minute-and-a-half” after the presentation of evidence — which included the testimony of school officials — to rule that he could not find beyond a reasonable doubt that Seal knowingly had the knife. Hindman has asked for $1 million dollars in damages, but may increase that amount before going to trial. Hindman said that he will present expert witnesses who will show that Seal’s expulsion will have a continuing impact on his future earnings and that the experience of failure has caused him grave psychological harm. IS THE STATUTE INFIRM? Mary A.R. Stackhouse, the board’s Deputy Law Director, told ALM News Service that even though the dissent presented an alternative ground for upholding the expulsion — that scienter may be inferred from Seal’s actions � the board will continue to press its claim that it need not prove scienter at all. The board will file a petition for rehearing and for rehearing en banc, if necessary, she said. If those appeals fail, she added, “We might have to revisit this policy.” However, she has questions about whether state law gives the board the freedom to revise its zero tolerance policy. She said, “I have concerns about revisiting our policy because it is based verbatim on state statute. The statute does not have a scienter element. I feel that the court is back-dooring a holding that the statute itself is infirm, an issue that [Seal] has not explicitly raised.” As it existed at the time of Seal’s expulsion, Tenn. Code Ann. Section 49-6-4216 mandated that local boards of education adopt policies “[t]o impose swift, certain and severe disciplinary sanctions on any student … [w]ho, while on a school bus, on school property or while attending any school event or activity … [p]ossesses a drug, drug paraphernalia or dangerous weapon.” The statute also stated that, “Each local and county board of education is encouraged to include within such policies and procedures a zero tolerance policy toward any student who engages in … misconduct [relating to drugs, weapons, threats and assaults.]“ Stackhouse noted that Seal might not have received a one-year suspension under amendments to the statute enacted this year. The statute now contains a provision that, “A zero tolerance violation shall not necessarily result in a presumptive one (1) calendar year expulsion except for those types of student misconduct set forth in Section 49-6-3401(g).” Tenn. Code Ann. Section 49-6-3401(g) calls for a one-year suspension if a student has an illegal drug, commits a battery against a school official, or is in possession of a firearm, but not other weapons. The legislature made these changes at least partly in reaction to Seal’s case, as well as other lawsuits brought by angry parents. Rep. Howard Kerr introduced proposed legislation after Judge Jarvis issued his decision in 1999. Kerr told The Associated Press in February of this year that school officials were so worried about safety they were “destroying good kids.” Governor Don Sundquist signed the bill into law in April and it went into effect in July. However, Stackhouse does not think the new statute will solve the board’s problems, because it does not resolve the central issue in Seal’s case. Although it may raise the threshold for a one-year suspension, she said, the new statute does not amend the zero tolerance policy to include the element of scienter.

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