Student wins civil rights case against Todd County schools

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A U.S. District Judge ruled that Todd County High School, on the Rosebud
Reservation, violated a student's civil rights.

Judge Charles Kornmann issued a partial summary judgment against the Todd
County School Board and the school's administration for failing to allow
Levi Waln due process after a suspension.

Waln was 15 years old and a freshman at the high school when an altercation
occurred there that involved two other students and faculty members. He
received a long-term suspension that wiped out an entire semester and, as
the plaintiffs argued, was not afforded due process.

Kornmann agreed with Waln and his mother Jody Waln, co-plaintiffs in the
case, "that the defendants shouldered the responsibility of initiating the
proper administrative proceedings or at least making Waln aware of what
proceedings could be initiated."

The court found in favor of the plaintiffs on the three counts alleged in
their complaint: The defendants failed to provide adequate notice, failed
to provide due process within 10 days of the suspension and failed to
provide a meaningful due process hearing.

A defendant's motion for dismissal was denied.

Waln was suspended before his mother and stepfather were notified, and it
wasn't until later that they were notified that a hearing before the board
of education was scheduled. This is in violation of South Dakota law and
administrative education procedures.

Waln was allowed to return to school after his parents complained, but
according to Dana Hanna, Waln's attorney, the semester was lost at that
point: it was 31 days after his long-term suspension.

Waln and two other students had begun fighting in a restroom, and two
faculty members tried to intervene with no positive results as blow were
exchanged. The other two students were also suspended.

Jody Waln was notified by phone the day after the incident by school
Principal Bruce Blanchard, and by letter two days after the Dec. 13, 2004
incident, that her son was to be suspended for aggravated assault as
defined by the student manual, the court ruling stated. Waln received a
short-term suspension on Dec. 13; on Dec. 15, Superintendent Richard
Bordeaux issued the long-term suspension to include the rest of the
semester.

"This letter made no mention of a hearing or other procedures that could be
employed to challenge the suspension," Kornmann stated.

The school administration claimed they did not have to set a hearing date
when the issued involved a long-term suspension. They asserted that the
plaintiff must make a request for such a hearing. Kornmann disagreed.

Another letter was submitted to Waln's parents by Blanchard on Dec. 28,
with the date of a scheduled hearing before the board of education set for
Dec. 29. This did not provide the parents time to prepare for the hearing
or acquire an attorney, they argued. The letter did not mention what
evidence there was against Waln, nor did it mention he would have an
opportunity to confront his accusers.

At the school board hearing the alleged aggravated assault charge mentioned
by Blanchard was not discussed, but a charge of confrontation with a
faculty member was, according to the court ruling. The latter charge is not
mentioned in the school's handbook as grounds for long-term suspension.

The school board made no recommendation, but returned the case back to
Bordeaux to review his own decision. Bordeaux was unavailable for comment.

Waln attends school under Section 504 of the 1973 Rehabilitation Act. He
suffers a severe arthritic condition. The defendants claimed that Waln
could not return to school until a manifestation determination process was
complete.

"Section 504 does not require a manifestation determination. It is
something they decided to do rather than make a decision. There is a lot of
confusion on the part of the school district," said Dana Hanna, Waln's
attorney.

The manifestation determination is part of the Disabilities Act, but is
less stringent than the Individual Disabilities Education Act. In that case
a hearing is held to determine if a student was acting out as a result of
his or her disability.

"In this case the primary dispute is whether the minimum due process rights
vis--vis public school disciplinary proceedings were met as to Waln.

"Blanchard's imposition of a suspension through the remainder of the school
year without a hearing was clearly improper," Kornmann wrote.

"Informing a student of his due process after imposing punishment is
exactly the type of conduct that is prohibited by the due process clause."

Kornmann's written statement said that the board of education held a
hearing and gave Waln no opportunity to challenge the suspension with no
final decision, while at the same time he was under suspension.

"Guilty until proven innocent, so to speak," he stated.

In his ruling, Kornmann criticized the school without ordering the
administration to improve student suspension policy procedures, although he
did state that Waln should have been given the right to chose whether to
challenge the suspension in an adjudicatory hearing.

"The judge doesn't have to spell out the effect to the school; Todd County,
you had better start following the law. Follow the law by reading the state
statutes about what is required when you impose a suspension of more than
10 days," Hanna said.

"[Kornmann] doesn't have to spell that out to them because if they don't
understand that's what they have to do, they will be sued again and again
and again."

The statute of limitations on any case involving due process is three
years. In that time there may have been some cases of suspension that have
not followed the due process procedures of the state or the state education
system, or that of Todd County School District.

Another trial will be held to determine payment of damages. Hanna did not
reveal what damages the plaintiffs would seek.

Waln now attends St. Francis School, a tribally operated school on the
Rosebud Reservation. Hanna said he had no concrete information about the
other two students involved.