Conford, Kolovsky and Carton. Conford, P.J.A.D. (concurring). Kolovsky, J.A.D. (concurring). Carton, J.A.D. (concurring).
The expulsions of appellants are reversed and set aside for failure to produce the accusing witnesses for testimony and cross-examination.
The matters are remanded to the Commissioner of Education for rehearing de novo of the charges on which appellants were expelled should the local school authorities choose to prosecute them. No costs.
CONFORD, P.J.A.D. (concurring) The per curiam opinion of the court represents what all the members of the court can agree upon. I herewith supplement that determination with my own reasons for joining therein and my own more specific views as to what the Commissioner of Education should do and the local school authorities may do at this juncture.
We granted leave to appeal an interlocutory decision of the State Commissioner of Education, but denied appellants' request for ad interim readmission to classes at Franklin High School from which they had therefore been expelled or suspended for an alleged physical assault upon other students said to have occurred October 7, 1970. (All were ultimately expelled.) The Supreme Court on motion thereafter
directed the appellants to be readmitted to school, subject to good behavior, pending determination of this appeal.
The sole issue presented is whether a high school student may be expelled from school on the charge of physical assault upon another student where the hearing conducted by the local board of education on the charge is not preceded by identification to the accused of the accusing student witnesses whose ex parte statements the school administration has relied on in bringing the disciplinary proceedings and where such witnesses do not appear to testify at the hearing. My view, and I believe that of the court, is that this procedure denies due process to the student so expelled, and this notwithstanding a determination by the local board, held warranted by the State Commissioner, that the student witnesses were afraid to testify because of fear of physical reprisal and should not be compelled to do so against their will.
On October 7, 1970, according to hearsay testimony adduced before the local board and the Commissioner, two students at the school, sisters, were assaulted by a group of others, all or mostly girls, while all were walking home after classes, a short distance from the school exits. They were struck with a stick, pushed to the ground and jumped upon or kicked, and some of their possessions were taken from them and purloined or scattered. One of them sustained the destruction of her eyeglasses. Both had minor injuries. They ran, crying, back to the guidance office at the school. It appears that neither could, or was willing to, identify any of their attackers. But a number of student witnesses volunteered statements to the school authorities identifying appellants and others (about ten in all) as involved in the episode. They were apparently assured, upon request, that they would not be identified to the accused students because of fear of physical retaliation.
The alleged assailants were, so far as available, called in for interviews, and generally denied complicity. But some stated they were in the vicinity and had seen part of the events. In the case of appellant Tanya Tibbs, statements
of other students supporting her defense that she had seen but not participated in the occurrence were proffered to the school authorities by her parents, but investigation thereof failed to satisfy the authorities that the prima facie case against her had been impaired. We are informed that initial suspensions were imposed upon a total of ten students. After informal hearings the suspensions were lifted as to five of the accused, but the other five, including the four present appellants, were expelled by the board of education after hearings substantially of the kind afforded Tanya, and described hereafter.
Tanya was originally notified of a suspension to begin October 13, 1970 and to terminate November 16. (She remained out of school until the Supreme Court order of January 25, 1971.) Tanya's parents were given notice October 27, 1970 by the superintendent of schools that the board of education would meet November 2, 1970 for a full hearing to consider the recommendation of the school principal and himself that the girl be expelled from school for "assault upon a student of Franklin High School"; that they could be represented by an attorney; that the vice-principal and principal would testify and be subject to cross-examination, and that signed statements of student witnesses would be presented but that such students would not appear at the hearing. The accused pupil would have the right to present testimony of witnesses or a signed statement by any witness not desiring or able to attend.
The hearing was postponed to November 9, 1970 at the request of Tanya's attorney but the latter was informed that the statements of the student witnesses to be provided would not be signed or identified.
At the hearing before the board the principal and vice-principal of the high school testified concerning their investigation and the informal hearings they conducted as to the incident, resulting in findings and conclusions by them substantially to the effect indicated above, including that of Tanya's guilt. The principal also testified that he had received
a telephone call from the mother of one of the accused students threatening the life of one of the prospective student witnesses. There was testimony that the student witnesses were in terror of retaliation if their identity was revealed to the accused students. The principal explained that the problem he faced in deciding whether to produce the children to testify was "a two-fold one: What happens within the confines of a racially tense school; and my own concern for the continued safety of the students involved." (It seems agreed there has been a history of racial conflicts at the school.) The board voted to accept into evidence unsigned and unidentified statements by student witnesses, and three such were read into the record. In each such statement Tanya was identified as one of those "doing the hitting." A statement by the victims, identified as the Cornwell sisters, was also read. This described the occurrence but omitted identification of any assailant.
The attorney for Tanya objected throughout the hearing to the failure to identify and produce and subject to cross-examination any of the accusing witnesses whose statements were read. On the basis of that deficiency he refused to adduce defensive testimony by or on behalf of his client. He had also at the outset of the hearing moved that two members of the board disqualify themselves as prejudiced because of public statements previously made by them concerning the incident and alleged antecedent related occurrences. The motion was denied.
The board of education thereupon voted Tanya guilty and then took testimony concerning her prior disciplinary record in school. This was generally poor. After argument by counsel against expulsion the board voted that determination.
Tanya filed an appeal against the expulsion with the Commissioner of Education and petitioned him for ad interim relief of admission to classes pending adjudication. A hearing on the petition was conducted November 20, 1970 before the Division of Controversies and Disputes at which the school principal testified to the substance of what had been
adduced before the local board. On December 1, 1970 the Commissioner of Education denied ad interim relief. He expressly decided that the procedure used by the local board comported with due process and that he was satisfied by the testimony of the principal "that school officials had sufficient cause for concern regarding the safety of potential student witnesses" so as to justify not "releasing the students' names" or permitting their cross-examination.
It is not necessary here to pursue in detail the long and uneven development of the law over the past century concerning appropriate procedures in school and college student disciplinary proceedings. See Annotations , 58 A.L.R. 2d 903 (1958); A.L.R. 2d Later Case Service (56-63 A.L.R. 2d) at 219; the extensive survey of authorities and literature in R.R. v. Board of Education, Shore Reg. H.S. , 109 N.J. Super. 337 (Ch. Div. 1970); Note, 41 Temple L.Q. 349 (1968); Abbott, "Due Process and Secondary School Dismissals," 20 Case Western Reserve L. Rev. 378 (1969).
To summarize briefly, the early cases, particularly in relation to proceedings below the college level, generally did not recognize due process concepts as appropriate to the exercise of discipline of students, even in the case of expulsion. The idea of the school administrators being in loco parentis to students of secondary and primary grade level held some sway. In the course of time, however, when the sanction applied for misconduct was expulsion or suspension of severe duration, especially in college-level cases, the decisions began to speak in terms of hearing requirements of due process. But a variety of expressions can be found in the cases as to the specifics of fair hearings or due process, particularly in relation to such claimed incidents as the right of counsel, personal appearances of accusing witnesses, and the right of cross-examination of such witnesses by the defense. The variations are probably explainable on the basis of the diversity of attendant circumstances in different cases -- the nature of the offense; nature of the prosecuting and adjudicating entities; ages of the accused students and of
witnesses; stage of the proceedings in the entirety of the process of investigation, punishment-treatment and review; and effect of statutory provisions, e.g. , as to right to subpoena witnesses or to counsel, or the absence thereof, etc. See Madera v. Board of Education, City of New York , 386 F.2d 778 (2 Cir. 1967), cert. den. 390 U.S. 1028, 88 S. Ct. 1416, 20 L. Ed. 2d 284 (1968); Schwartz v. Schuker , 298 F. Supp. 238 (E.D.N.Y. 1969).
Our own statutes are rudimentary. N.J.S.A. 18A:37-2 provides that certain types of pupil misbehavior, including "d. physical assault upon another pupil * * *" may be attended by "suspension or expulsion from school." A principal may suspend any pupil 'for good cause" but must report it forthwith to the superintendent of schools. The superintendent must report the suspension to the board of education at its next regular meeting. Either the principal or superintendent may reinstate the pupil prior to the second regular meeting of the board thereafter unless the board does so at its first meeting. N.J.S.A. 18A:37-4. No suspension may continue beyond the second regular meeting of the board after the suspension unless the board continues it, "and the power to reinstate, continue any suspension reported to it or expel a pupil shall be vested in each board." N.J.S.A. 18A:37-5. No hearing procedures attendant upon suspensions or expulsions are specified.
The leading decision of the modern era relating to fair procedures in college expulsion cases is Dixon v. Alabama State Board of Education , 294 F.2d 150 (5 Cir. 1961), cert. den. 368 U.S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (1961). The guidelines there stated were quoted in full in R.R. v. Board of Education, Shore Reg. H.S., supra (109 N.J. Super. at 349), and need not be repeated here. Basically similar standards were declared in State ex rel. Sherman v. Hyman , 180 Tenn. 99, 171 S.W. 2d 822, 826 (Sup. Ct. 1942), cert. den. 319 U.S. 748, 63 ...