A.D. and J.D. v. Richland County School District Two ( 2024 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
T.D., by and through his guardians A.D. and J.D.,
Appellants,
v.
Richland County School District Two, Respondent.
Appellate Case No. 2019-001603
Appeal From Richland County
L. Casey Manning, Circuit Court Judge
Opinion No. 2024-UP-310
Heard September 13, 2022 – Filed September 11, 2024
AFFIRMED
Donald Michael Mathison, of Columbia, for Appellants.
Jasmine Rogers Drain and Vernie L. Williams, both of
Columbia, for Respondent.
MCDONALD, J.: Following an investigation into social media messages
containing threats to shoot students at Blythewood Middle School, Richland
County School District Two (the District) conducted an expulsion hearing and
expelled Blythewood student T.D. for the remainder of the school year. T.D.'s
grandparents, A.D. and J.D., appealed the circuit court's order affirming this
expulsion, arguing the circuit court applied an incorrect standard of review in
considering their claims that (1) the District's hearing process violated T.D.'s right
to procedural due process and (2) the District violated South Carolina law by
accessing T.D.'s juvenile records. We affirm the order of the circuit court.
Facts and Procedural History
On December 1, 2018, Officer Josh Robinson of the Richland County Sheriff's
Office (RCSO), responded to a parent's report of Snapchat messages sent by a
student threatening to shoot people at school the following Monday. The messages
were not directed at the complainant's child; the child learned of them from the
student recipients and told his parent. Officers spoke with the student recipients,
who showed them the messages purportedly sent by another student, T.D.
RSCO Sergeants Steffany Boyd and Chris Truluck responded to T.D.'s home,
where his grandparent guardians consented to a search. Sergeant Truluck informed
Grandparents that T.D. would be unable to attend school the next day; he noted the
middle school (School) would contact them regarding T.D.'s status.
Sergeant Truluck then notified the School's principal, Karis Mazyck (Principal) of
the reports that T.D. sent the threatening messages. The message most frequently
referenced during the subsequent expulsion proceedings stated:
I want my shit on Monday or all I know is u and him is
getting shot in school…I don't give a [f***] I want my
shit Monday…my pistol is coming to school with
me…and if I don't get my juul I'm shooting both of y'all
and a ton of other people.
(ellipses in original). Another message read, "I know one thing a 9mm is coming
to school with me and if I get search [sic] I will shoot the school up and if I don't
get my juul I'm shooting the school up."
The Principal contacted Grandparents, who claimed T.D. denied sending the
messages. On December 5, 2018, the Principal notified Grandparents that T.D.
had been recommended for expulsion as of December 3, 2018, because he used
social media to threaten other students in violation of District policy. The District
appointed Director of Student Services Lottie Chisolm (the Hearing Officer) as the
hearing officer; the Hearing Officer then wrote to Grandparents, confirming that
the Principal had recommended T.D. for expulsion and notifying them of a "due
process" hearing scheduled for December 12, 2018. The Hearing Officer also
informed Grandparents of their right to retain counsel.
Pursuant to the Principal's request for law enforcement's records, Officer Truluck
sent her all RCSO records in the investigation along with other records related to
T.D. In sending the records, Officer Truluck advised, "Of course as you know it
involves a Juvenile so it is not allowed to the general public at this time please."
The Principal responded that she wanted to share the information with her
supervisor and the Hearing Officer as part of her recommendation for expulsion.
Before starting the hearing, the Hearing Officer instructed the Principal to meet
with T.D. and Grandparents, disclose the District's evidence against T.D., and give
T.D. the opportunity to "tell [his] side of the story." At this conference, T.D.
claimed he did not send the messages and noted several people knew his Snapchat
login information. The Principal explained that she recommended T.D. for
expulsion because of the threat to other students, the threat against the school, and
the information in the RCSO incident report. At this time, Grandparents were
unaware of the RCSO incident report.
During the hearing, the Hearing Officer questioned T.D. about the current incident,
as well as a prior incident involving social media messages. 1 T.D. denied sending
the messages, said he no longer had a phone, and claimed someone else must have
accessed his account to send the messages. According to Grandparents, T.D. sold
his phone over the Thanksgiving weekend because his service had been turned off,
and they did not know how T.D. could have sent the messages without a phone.
The Hearing Officer then read the RCSO incident report, which noted T.D.
admitted to using his biological mother's phone while at the emergency room.
T.D.'s grandmother explained that she knew T.D. took pictures of his injured hand 2
while at the ER, but claimed he "never got a chance" to use his mother's phone.
The record and incident report contain pictures that user "Country Boy T…" posted
to Snapchat, including a photo of an arm captioned, "Kids don't play with live
1
T.D. had been subject to disciplinary action in early November 2018 for sending
profane Instagram messages to a teacher. As in this instance, T.D. claimed
someone else accessed his account and sent the messages. Following the prior
incident, T.D. served an out of school suspension.
2
T.D. punctured his hand while playing with a bullet.
shotgun shells." Grandparents did not have access to the incident report or other
law enforcement records prior to the expulsion hearing.
The Hearing Officer upheld the Principal's recommendation that T.D. be expelled
for the remainder of the school year. By letter dated January 11, 2019, the Hearing
Officer notified T.D. and Grandparents of her decision and of their right to appeal
her decision to the Board. The letter explained:
The Board will consider all of the written records in this
case in determining whether it will uphold reverse or
modify my decision. You will be notified, in writing, of
the Board's decision within fifteen (15) calendar days of
the date of your Notice of Intent to Appeal. Should the
Board find that unusual and extenuating circumstances
exist such that you will be given the opportunity to
personally appear before the Board concerning your
appeal, you will be notified of the date and time for that
appearance.[3]
Grandparents retained counsel and appealed the Hearing Officer's decision to the
Board. On February 5, 2019, Grandparents requested another hearing and asked
that the record be reopened. The Board agreed to allow Grandparents and T.D. to
attend the Board's proceeding.
On February 8, 2019, Grandparents requested that all witnesses against T.D. be
present at the new hearing, including "[a]ny student who has given a statement that
has been submitted in connection with this matter." Grandparents claimed they
were not given the opportunity to question the student witnesses or the investigator
who prepared the incident report, noting the District had not revealed the identities
of all witnesses. Grandparents requested that the District reopen the record for
additional testimony and make all witnesses, including the threatened students,
available. They argued any hearing conducted without providing the opportunity
to confront and cross-examine all witnesses would not cure the deficiencies they
alleged occurred in connection with the prior expulsion proceeding.
In response, the District proposed remanding the matter for a new hearing before a
new hearing officer—a retired administrator. The District explained, "Our reason
3
At some point prior to sending this letter, the Hearing Officer called Grandparents
and informed them of T.D.'s pending expulsion.
for this proposal was in light of the concerns that you raised that, even if the Board
were to make a decision, included in the record for the Board's consideration are
law enforcement records to which you object based on your client's status as a
juvenile." The District indicated the Board would need to vote on Grandparents'
other requests at its upcoming meeting.
The Board heard T.D.'s appeal on February 12, 2019. On February 18, 2019, the
Board notified T.D. and Grandparents of its decision to uphold T.D.'s expulsion.
The letter noted Grandparents had declined the opportunity for a new hearing and
instead chose to proceed with their appeal.
Grandparents timely appealed the Board's decision to the circuit court and
requested injunctive and declaratory relief. Grandparents sought an order
declaring (1) the District violated Sections 63-19-810 and 2020(E) of the South
Carolina Code (2010) by failing to develop and implement policies concerning the
privacy of juvenile records and (2) the District's policy of failing to give students
recommended for expulsion the opportunity to question all witnesses violated
Article I, Section 22 of the South Carolina Constitution and Section 59-63-240 of
the South Carolina Code (2020).
The circuit court upheld T.D.'s expulsion, finding the decision to expel him was
supported by the substantial evidence in the record and T.D. was afforded due
process. The circuit court further found the District did not violate South Carolina
law governing the confidentiality of juvenile records, noting the "law allows
juvenile records to be used for supervising, monitoring, and meeting the
educational needs of students." The circuit court denied Appellants' request for
injunctive or declaratory relief, finding (1) "any procedural errors either were not
prejudicial to T.D., or were cured on appeal" and (2) the request to reinstate T.D. in
the eighth-grade setting for the remainder of the school year was moot due to the
start of a new school year and T.D.'s ability to apply for readmission.
Analysis
I. Standard of Review Applied by the Circuit Court
Grandparents argue the circuit court erred in applying a substantial evidence
standard of review because their appeal of the Board's decision raised questions of
law and statutory interpretation. We find no error.
The circuit court properly relied on Doe v. Richland County School District Two,
382 S.C. 656, 659, 677 S.E.2d 610, 611 (Ct. App. 2009), in support of its finding
that South Carolina courts have applied a substantial evidence standard of review
in expulsion cases, including those addressing questions of due process. In Doe,
the circuit court reversed the student's expulsion, finding it was unsupported by
substantial evidence and the student's due process rights were violated. Id. On
appeal, this court explained, "Judicial review of the school board's decision is
limited to ascertaining whether the board's decision is supported by substantial
evidence" and affirmed the reversal of Doe's expulsion. Id.We find the circuit court correctly applied a substantial evidence standard in
upholding T.D.'s expulsion. And, for the reasons discussed below, we agree with
the circuit court's finding that T.D. was afforded the requisite due process.
II. Due Process
In addressing Appellants' due process claims, the circuit court concluded, "While
Appellants may dispute the Board's outcome, this Court finds any procedural errors
either were not prejudicial to T.D., or were cured on appeal, and that the Student
was afforded [the] due process required under applicable law." Appellants
challenge the circuit court's findings, arguing: (1) the District violated T.D.'s right
to due process before the Hearing Officer because T.D. was not provided proper
notice of the allegations and evidence against him; (2) the Principal withheld
evidence from Grandparents and T.D.; (3) the Hearing Officer erroneously acted as
both prosecutor and finder of fact; and (4) the hearing before the Board did not
cure the deficiencies before the Hearing Officer because T.D. was not permitted to
introduce new evidence nor was he able to question all witnesses.
Appellants contend the Board's refusal to remand the case for a new hearing in
which they could ask questions of all witnesses, including the threatened students,
violated T.D's rights to confront his accusers, the applicable statutes, and District
policies. To address these claims, we must consider the authorities applicable to
Appellants' constitutional challenge while also recognizing the flexibility school
officials must be afforded in balancing the constitutional interests of an individual
student against legitimate school safety concerns.
Article I, Section 22 of the South Carolina Constitution provides:
No person shall be finally bound by a judicial or
quasi-judicial decision of an administrative agency
affecting private rights except on due notice and an
opportunity to be heard; nor shall he be subject to the
same person for both prosecution and adjudication; nor
shall he be deprived of liberty or property unless by a
mode of procedure prescribed by the General Assembly,
and he shall have in all such instances the right to judicial
review.
"[T]he fact that investigative, prosecutorial, and adjudicative functions are
performed within the same agency, or even performed by the same persons within
an agency, does not, without more, constitute a violation of due process." Majors
v. S.C. Sec. Comm'n, 373 S.C. 153, 161, 644 S.E.2d 710, 714 (2007) (quoting
Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 443, 511
S.E.2d 48, 54 (1998)).
The authority possessed by the State to prescribe and
enforce standards of conduct in its schools, although
concededly very broad, must be exercised consistently
with constitutional safeguards. Among other things, 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 v. Lopez, 419 U.S. 565, 574 (1975).
"Expulsion is a more serious disciplinary action than is suspension. Accordingly,
the procedures and protections given to the accused student should be greater than
the informal, immediate hearing that was authorized in Goss." Stinney v. Sumter
Sch. Dist. 17, 391 S.C. 547, 551, 707 S.E.2d 397, 399 (2011). Our supreme court
has held the expulsion process promulgated in § 59-63-240 satisfies constitutional
due process requirements. Id. at 551–52, (noting "[t]he Stinneys chose not to be
represented by counsel during the initial hearing, and the fact they did not present
evidence or exercise their statutory right to question witnesses does not create a
procedural due process violation").
The version of section 59-63-240 in effect at the time of T.D.'s expulsion hearing
provided:
The board may expel for the remainder of the school year
a pupil for any of the reasons listed in Section 59-63-210.
If procedures for expulsion are initiated, the parents or
legal guardian of the pupil shall be notified in writing of
the time and the place of a hearing either before the board
or a person or committee designated by the board. At the
hearing the parents or legal guardian shall have the right
to legal counsel and to all other regular legal rights
including the right to question all witnesses. If the
hearing is held by any authority other than the board of
trustees, the right to appeal the decision to the board is
reserved to either party. The hearing shall take place
within fifteen days of the written notification at a time
and place designated by the board and a decision shall be
rendered within ten days of the hearing. The pupil may
be suspended from school and all school activities during
the time of the expulsion procedures. The action of the
board may be appealed to the proper court. The board
may permanently expel any incorrigible pupil.
§ 59-63-240. 4
"Due process does not require a trial-type hearing in every conceivable case of
government impairment of a private interest. Rather, due process is flexible and
calls for such procedural protections as the particular situation demands."
Kurschner v. City of Camden Plan. Comm'n, 376 S.C. 165, 171–72, 656 S.E.2d
346, 350 (2008) (citations omitted).
While schools are required to provide students with some
level of due process, "'maintaining security and order in
4
The General Assembly recently amended § 59-63-240, effective May 21, 2024, to
add that this written notification must include "contact information for a legal aid
service provider which may determine eligibility for free legal representation. The
notification must also include the right to access the investigative file in its
entirety, to include all documents and videos, at least three days prior to the
hearing, with appropriate exemptions and redactions as required by the Family
Educational Rights and Privacy Act, 20 U.S.C. Section 1232g." 2024 Act No. 194,
§ 1. In the current matter, we rely on the version of the statute in effect at the time
of T.D.'s expulsion proceeding before the Hearing Officer.
the schools requires a certain degree of flexibility in
school disciplinary procedures, and we have respected
the value of preserving the informality of the
student-teacher relationship.'" Moreover, schools require
this flexibility because they "need . . . to control such a
wide range of disruptive behavior." In other words, "the
school disciplinary rules need not be as detailed as a
criminal code which imposes criminal sanctions."
Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 575 (4th Cir. 2011) (citations
omitted). "[S]chool officials have been afforded substantial leeway to depart from
the prohibitions and procedures that the Constitution provides for society at large.
Such leeway is particularly necessary when school discipline is involved."
Wofford v. Evans, 390 F.3d 318, 323 (4th Cir. 2004).
Here, most of Appellants' concerns would have been cured at the new hearing
before a different hearing officer—an opportunity Appellants were offered but
chose to decline. Although the District did not guarantee all witnesses would be
available, as it could not require the presence of student witnesses it had no
authority to compel, the District indicated it would request the presence of the
investigating law enforcement officers. Further, the District's counsel explained
that while the District would request the attendance of the adult witnesses, those
witnesses would need to appear at the new evidentiary hearing—not at the Board's
appellate proceeding.
Rather than accept this offer of a new hearing with the opportunity to question the
adult witnesses, Grandparents opted to decline the offer because the District would
not accede to all of their demands, particularly their insistence upon
cross-examining the student witnesses. In light of T.D.'s admission to the
investigating officer that he had access to his mother's phone while in the ER—and
Grandparents' rejection of the opportunity to confront and question this officer
once they learned of the incident report containing T.D.'s admission—we decline
to find due process required that Appellants be permitted to question the minor
students regarding T.D.'s social media threats. See Kurschner, 376 S.C. at 172,
656 S.E.2d at 350 ("[D]ue process is flexible and calls for such procedural
protections as the particular situation demands."); Wofford, 390 F.3d at 323("[S]chool officials have been afforded substantial leeway to depart from the
prohibitions and procedures that the Constitution provides for society at large.
Such leeway is particularly necessary when school discipline is involved."
(citations omitted)); Reese v. Richland Sch. Dist. Two, No. 3:13-03040-MGL, 2015
WL 9239785, at *6 (D.S.C. Dec. 17, 2015) (citing Newsome v. Batavia Loc. Sch.
Dist., 842 F.2d 920, 924–27 (6th Cir. 1988) (discussing student's "right to a pre-
expulsion hearing before an impartial trier-of-fact," and finding due process did not
require that student be permitted to cross-examine student accusers) and Brewer ex
rel. Dreyfus v. Austin Indep. Sch. Dist., 779 F.2d 260, 263 (5th Cir. 1985)
(rejecting student's due process argument based on the inability to confront and
cross-examine student witnesses where summaries of students' statements were
read to him at the hearing)).
Moreover, the Board's refusal to reopen the record at its appellate proceeding did
not violate T.D.'s due process rights. The Board was sitting in an appellate
capacity when it considered T.D.'s expulsion. The Board's policy is to review
decisions based on the "established record" consisting of the recording of the
hearing officer's proceeding and the documentary evidence presented there. We
find no error in the Board's refusal to reopen the appellate record, particularly as
the Board offered Grandparents a remand and the opportunity to present additional
evidence before a new hearing officer.
We acknowledge and echo Grandparents' concern that law enforcement's records,
including the student statements and message screenshots, were not made available
to them prior to the proceeding before the first Hearing Officer. However, any
prejudice T.D. suffered from the District's initial disclosure failure would have
been cured at a new hearing before a different hearing officer.
Finally, while we see no evidence in the record that the Hearing Officer acted as
both factfinder and prosecutor, such concerns may have likewise been alleviated
through the procedure offered on remand. Grandparents contend the Hearing
Officer was biased against T.D., but our review of the audio recording reveals no
such bias. The Hearing Officer asked several questions of T.D. and certainly
seemed to doubt his story that someone else had managed to log in to his Snapchat
account and send the threatening messages. But the record contains no evidence of
any actual bias, and Grandparents' allegations regarding the Hearing Officer's
questioning do not rise to a level that would implicate Article I, Section 22's
prohibition. See Marshall v. Cuomo, 192 F.3d 473, 484 (4th Cir. 1999) ("It is well
established that due process rights are not violated simply by the combination of
the investigative, prosecutorial, and adjudicative functions in one agency. Rather,
actual bias or a high probability of bias must be present before due process
concerns are raised.").
III. T.D.'s Juvenile Records
Grandparents next assert the circuit court erred by failing to dismiss the expulsion
proceeding due to the District's violation of South Carolina law mandating the
confidentiality of juvenile records. Specifically, Grandparents allege the District
violated § 63-19-810(C), addressing law enforcement's notification of a school
principal when a juvenile is charged with a misdemeanor or a felony, and
§ 63-19-2020(E), providing for notification of a juvenile's school principal of the
disposition of certain criminal offenses and requiring that school districts develop
policies "to ensure that the confidential nature of a child offense history and other
information received is maintained." Appellants contend the District's policies
lack the statutorily mandated language necessary "to protect and safeguard juvenile
information."
Section 63-19-810(C) requires:
When a child is charged by a law enforcement officer for
an offense which would be a misdemeanor or felony if
committed by an adult, not including a traffic or wildlife
violation over which courts other than the family court
have concurrent jurisdiction as provided in Section
63-3-520, the law enforcement officer also shall notify
the principal of the school in which the child is enrolled,
if any, of the nature of the offense. This information may
be used by the principal for monitoring and supervisory
purposes but otherwise must be kept confidential by the
principal in the same manner required by Section
63-19-2220(E).[5]
§ 63-19-810(C).
Section 63-19-2020(A) provides, in pertinent part:
Except as provided herein, all information obtained and
records prepared in the discharge of official duty by an
employee of the court or department are confidential and
must not be disclosed directly or indirectly to anyone,
5
§ 63-19-2220(E) references "the effective tracking and supervision of juveniles"
pursuant to the Interstate Compact for Juveniles.
other than the judge, the child's attorney, or others
entitled under this chapter or any other provision of law
to receive this information, unless otherwise ordered by
the court.
Section 63-19-2020(E)(1) mandates that the Department of Juvenile Justice notify
the principal of a school in which a child is enrolled "upon final disposition of a
case in which the child is charged" with certain specified offenses. Section
63-19-2020(E)(2) requires:
(2) Each school district is responsible for developing a
policy for schools within the district to follow to ensure
that the confidential nature of a child offense history and
other information received is maintained. This policy
must provide for, but is not limited to:
(a) the retention of the child offense history and other
information relating to the child offense history in the
child's school disciplinary file or in some other
confidential location;
(b) the destruction of the child offense history upon the
child's completion of secondary school or upon reaching
twenty-one years of age; and
(c) limiting access to the child's school disciplinary file to
school personnel. This access must only occur when
necessary and appropriate to meet and adequately address
the educational needs of the child.
In considering her recommendation for expulsion, the Principal requested Officer
Truluck's incident report regarding T.D. and the social media threats. In response,
Officer Truluck provided all of T.D.'s juvenile records. Section 63-19-810(C)
specifically allows a school principal to use such records "for monitoring and
supervisory purposes" while otherwise maintaining confidentiality. We agree with
the circuit court that Appellants have failed to provide support for their argument
that the Principal or other school official involved with T.D.'s disciplinary
proceeding violated the statutory parameters relating to the proper use and
confidentiality of T.D.'s records. 6
Conclusion
Following their review of the evidence to which they were statutorily entitled,
Appellants were offered a new hearing before a different hearing officer. They
declined. Thus, for the reasons discussed above, the order of the circuit court is
AFFIRMED.
GEATHERS, J., and HILL, A.J., concur.
6
To the extent Appellants' argument regarding the language of the District's
juvenile records confidentiality policy is not moot, Appellants have failed to
establish how the District's policy is lacking for purposes of § 63-19-2020(E). As
the circuit court recognized, the policy named the Principal as the custodian of all
student records for her school, contained language "regarding the retention and
destruction of records," and "provided that the school would maintain student
records in a confidential manner and comply with all state and federal law,
including the Family Educational Rights and Privacy Act ("FERPA") regarding
publication and dissemination of student records."