Opinion
C.A. No. 05A-02-004 WLW.
Submitted: November 2, 2005.
Decided: February 15, 2006.
Upon Appeal of the Decision of the State Board of Education. Denied.
Trina Jordan, pro se.
David H. Williams, Esquire of Morris James Hitchens Williams, LLP, Wilmington, Delaware; attorneys for the Appellee.
ORDER
Petitioner, Trina Jordan, filed an appeal with this Court contesting the decision of the State Board of Education ("State Board") to affirm the decision of Respondent, the Smyrna School District Board of Education ("District Board"), which expelled Petitioner's son, J.W., for the remainder of the 2004-2005 school year. J.W. was involved in an incident on September 10, 2004, during the "Pepsi Motivational Assembly" ("Assembly"). While at the assembly, J.W. was using his cell phone, in violation of the school's code of conduct. Mrs. Tice asked J.W. to surrender the phone to her. After several unsuccessful requests, Mrs. Tice motioned for Mr. Soligo, the building principal. Mr. Soligo then asked J.W. to hand him the phone. After four unanswered requests, Mr. Soligo informed J.W. that he would have to accompany him to the office. J.W. still did not respond to Mr. Soligo's repeated instructions to follow him to the office. At that point, Mr. Soligo stated, "`Then I am going to have to escort you to the office at this point in time.'" Mr. Soligo asked the two students seated at the end of the row to move into the aisle and he stepped in and took J.W. by the elbow in an attempt to remove him from the assembly. When Mr. Soligo grabbed J.W.'s elbow, J.W. began to struggle, pushing Mr. Soligo and stepping on his foot. J.W.'s cousin, B.Q., stood up at this point and commented that Mr. Soligo better get his hands off B.Q.'s cousin. Mr. Williams, the associate principal, then assisted in removing B.Q. from the assembly. Both J.W. and B.Q. were escorted to the office, during which time J.W. made comments to Mr. Soligo such as "`You can't touch me'" and "`Just wait till I call my mom. She'll sue [you].'" At the office, they continued to be disruptive. Specifically, J.W. continued to use his cell phone, disrespected Mr. Williams and threatened to "`bank'" other students and teachers. A Smyrna police officer then arrived at the school and took J.W. and B.Q. into custody.
Additional Respondents, the State Board of Education and Louann Vari with the Department of Justice, were dismissed from this action by an Order dated June 3, 2005.
See Record on Appeal, pg. 2 (references to the Record on Appeal will appear as R-__).
Id.
R-11.
R-2.
Id.
Id.
Id.
Id.
Id.
Id., R-12.
R-12.
R-11.
R-3.
R-10. "Bank" refers to the offensive touching of other students, which Mr. Soligo had stated would not be tolerated in the morning announcements.
R-12.
For the reasons set forth below, Petitioner's Appeal from the decision of the State Board is denied.
Standard of Review
"The Court's review, in the absence of actual fraud, shall be limited to a determination of whether the agency's decision was supported by substantial evidence on the record before the agency." Substantial evidence equates to "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." If substantial evidence exists, and the Board has not committed any errors of law, the Court must affirm the decision below.
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) ( quoting Consolo v. Federal Mar. Comm'n, 383 U.S. 607, 620 (1966)).
Mooney v. Benson Mgmt. Co., 451 A.2d 839 (Del.Super. 1982), rev'd on other grounds, 466 A.2d 1209 (Del. 1983).
Discussion
The only issue that must be addressed for the purposes of this appeal is whether the State Board's decision is supported by substantial evidence.Such a discussion begins with an analysis of the State Board's role in this case. Title 14 Del. C. § 1058 reads, in pertinent part, "[t]he State Board shall overturn the decision of a local board only if it decides, after considering the advice of the Secretary, that the local board's decision was contrary to a specific state or federal law or regulation, was not supported by substantial evidence, or was arbitrary or capricious." Additionally, the State Board was required to uphold the punishment of the local board unless "such punishment is so disproportionate to the offense in light of all the circumstances as to be shocking to one's sense of fairness." In the State Board's opinion, it clearly stated that: (1) there was sufficient evidence to support the District Board's finding that J.W. intentionally and offensively touched Mr. Soligo in violation of the code of conduct; (2) the decision was not contrary to specific state or federal laws or regulations; and (3) that the expulsion with referral to an alternative program was not disproportionate to J.W.'s misconduct.
Warmouth v. Delaware State Bd. Of Exam'rs in Optometry, 514 A.2d 1119, 1123 (Del.Super. 1985), aff'd, 511 A.2d 1 (Del. 1986).
The State Board adopted as its decision and final order the proposed order of the hearing officer.
The code of conduct defines "offensive touching" as "[i]ntentionally touching another person (staff member or student), either with a member of his/her body or with an instrument, thereby causing offense or alarm." Further, referral to an alternative program or a recommendation for expulsion were optional punishments for such conduct.
This Court's only function is to determine whether, based on the record, the conclusions of the State Board are supported by substantial evidence. I find that there is substantial evidence to support the State Board's decision. Specifically, there is voluminous, virtually uncontested evidence by way of testimony before the District Board, letters from each of the staff members involved in the incident, and the oral argument hearing before the State Board evidencing that J.W. pushed Mr. Soligo and stepped on his foot. There were no state or federal laws that were violated by the District Board's decision. Additionally, the expulsion of a student who offensively touches a principal is not disproportionate to the misconduct, especially since the District Board recommended an alternative program. The State Board's decision to affirm the District Board's final order was supported by substantial evidence and the State Board did not commit any errors of law. Consequently, I must affirm its decision.
J.W. did not testify because he was advised that any testimony he gave could be used in a criminal prosecution. J.W.'s parents testified, but were not eyewitnesses to the incident, unlike the other witnesses.
Based on the foregoing, Petitioner's Appeal of the Decision of the State Board is denied.
IT IS SO ORDERED.