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Involuntary transfer results in suit against MPS over discipline policy, due-process rights

The decision to transfer, as opposed to expel, meant the student was granted neither a hearing where his side could be heard nor an opportunity to appeal.

Throughout his high-school career, the 17-year-old plaintiff referred to in U.S. District Court case 11-cv-1322 only as J.K. has maintained a GPA of 3.75. In his junior year, he managed this even though the majority of his courses were in the extremely rigorous International Baccalaureate program at Minneapolis’ Southwest High School.

Southwest, of course, is the district’s crown jewel. Frequently described as the best high school in the state, it is a perennial fixture on the “best schools” lists published by national newsstand glossies.

Slight and articulate, J.K. played on both the varsity basketball and varsity baseball teams and was on track to co-captain the basketball team his senior year. He sang with the Zero Hour Mens Chorus, mentored younger students and was inducted into the National Honor Society.

In the suit filed here in May [PDF], J.K. and his parents, Don Kaplan and Thea Nelson, charge that Minneapolis Public Schools violated J.K.’s rights when administrators unilaterally transferred him out of Southwest against his will in April following allegations of inappropriate behavior on a spring-break trip to Florida.

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No appeal, no hearing
J.K., the complaint argues, was denied his right to an appeal and, ultimately, a hearing before the state Department of Education, where he would have argued he was made a scapegoat for school officials’ failure to properly supervise the trip.

Because the matter is the subject of pending litigation and involves private student data, an MPS spokesman declined to comment on the case on behalf of the district and of the MPS employees who are named defendants.

In their complaint, J.K. and his parents are asking the court to order MPS to change what they say is an unfair discipline policy that has major ramifications for hundreds of students throughout the district.

“They’re claiming the unilateral right to pluck a kid out in the middle of the school year without providing him any notice or opportunity to be heard,” said Atlee Reilly, his attorney.

Dozens of Minnesota school districts expel a handful of students each year, and a few expel a lot [PDF]. Minneapolis expels almost none, but does unilaterally transfer hundreds as a result of disciplinary issues [PDF]. When the district makes an administrative transfer, the student involved has very little right to due process.

267 involuntarily moved last year
In the last school year, 267 were involuntarily moved to a new school or alternative learning center.

The unwritten district policy is an attempt to hang onto kids who would otherwise probably drop out, according to MPS’ executive director of communications.

“In Minneapolis, we do everything we can to keep students in school,” explained Stan Alleyne. “The overall thought process is to keep as many students in school as possible.”

In J.K.’s case, his parents and attorney counter, the formal proceedings that would have preceded an expulsion could have allowed a star student to clear his name. An independent hearing officer would be appointed, witnesses and evidence would be presented and tested and a recommendation would have been made to the school board. J.K. could have then appealed to the state Department of Education and then to the court of appeals.

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Baseball team trip to Florida
In March, 24 members of the baseball team traveled to Florida for spring training. On the evening of March 24, they were supposed to have a team activity followed by lights-out at midnight, according to the itinerary supplied to players’ parents. The activity never took place, and the boys were up wandering the motel halls, largely unsupervised, well after midnight, according to the complaint in J.K.’s civil suit.

At some point J.K. was wrestling with another player, J.O. J.K. pinned the boy and looked up and saw a third player expose his genitalia above J.O.’s head. J.K. immediately released J.O.  

J.K. didn’t think the stunt was funny, according to an affidavit he filed in the case. Another student had done the same thing to him at another time, and J.O. had done it to someone else.

A month after the trip, the suit says, the school’s athletic director called J.K. to his office where the principal, William Smith, was waiting. Smith said he was investigating an incident involving J.K. that occurred on the trip, and demanded that the boy tell him “everything.” After J.K. figured out what the principal was talking about, he did.

Like other district administrators, Smith cannot comment on the case.

Student at first suspended for five days
A few minutes later, Smith called Donald Kaplan and told him J.K. was being suspended for five days for “hazing” and recommended for expulsion from the district. “When asked what J.K. did to warrant this action, Defendant Smith refused to say,” the complaint alleges. “J.K.’s father protested, saying that J.K. was a good kid. Defendant Smith agreed with [Kaplan] that J.K. was a good kid.”

Kaplan said that other parents have since told him that the other two boys involved in the incident have been treated the same way. Because of student privacy rules, and because neither appears to have gone to court, there is no way to corroborate this.

In any case, word got around about J.K.’s situation. “Shortly after J.K.’s initial suspension, his baseball coaches informed his teammates he had been transferred to another school district,” the complaint charges.

A few days later the school social worker, Chul Schwanke, called Don Kaplan and said an outside investigation might take place. He “opined that there appeared to be a lack of supervision on the trip and that J.K. seemed like a scapegoat,” the suit alleges.

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At least one other student — W.M., who filed an affidavit on J.K.’s behalf in the case — claims to have gone to Smith to explain that he had been subjected to the same behavior by teammates, including J.K.’s alleged victim, but was told that the investigation was limited to J.K. and the other student involved in the incident at question.

Informed of transfer
On May 17, the Kaplans were informed that J.K. was being transferred to another school. There would be no hearing, no school board vote — none of the opportunities to be heard that J.K. would have been entitled to if he had been expelled.

“J.K. knows nothing about their decision making process because it has been shrouded in secrecy,” the suit alleges. “J.K. knows nothing about what information they reviewed to come to a decision.”

Indeed, much of what the family knows it has heard from other parents whose kids were on the trip who were present at meetings called by Smith.

The next day, May 5, Smith held a meeting with parents of many of the athletes who were on the trip. Throughout the meeting, parents asked what the central allegation was, hazing, bullying or sexual assault? Smith replied that it was an isolated incident and their children were safe.

“He was in a position of not being able to give us any details about the investigation,” said Tim Nolan, the father of another of the athletes and a friend of the Kaplans’. “I think he was expecting that we would applaud him for protecting our sons.”

Other parents concerned about school’s response
The parents, however, were concerned about the way the situation was being handled and about what some called a “zero tolerance” response, he added. When some suggested there were other athletes involved in the same behavior, Smith is said to have replied that, given names, he was prepared to expel them all.

“I’ve had the sense all along that the school district sees this as having a sexual component,” Nolan said. “You could view this incident on a whole, broad line of behavior, from stupid to torture.”

If J.K.’s conduct was so egregious it made him a danger to the Southwest community, Nolan added, he doesn’t understand why MPS is willing to let him attend another district program.

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“If the district truly believes that these boys have committed a sexual assault, why would you put them in any Minneapolis high school?” he said. “They don’t think it’s criminal sexual conduct. They don’t want public scrutiny.”

MPS’ Alleyne can’t answer even general questions about the case, but said students who pose a danger are usually transferred to alternative programs where their issues can be addressed. “If the administration determines that a student is a danger, they’re not going to put that student in a situation where they can do harm to another,” he said.

The district “doesn’t just move students from one place to another,” he added. “There has to be some belief the new situation will benefit the student.”

Last year’s transfers
Last year, MPS unilaterally transferred 267 students. The vast majority, 197, were African-American. Also transferred were 24 Hispanics, 21 Native Americans, 18 whites and seven Asians. Edison High transferred 28 kids, South 20, Henry 17 and Northeast Middle School 14.

The grades in which the fewest students were transferred were kindergarten and second grade, with five each, and 12th grade, with seven. The most transfers occurred in 10th with 49, 9th with 41 and eighth, with 32.

During the 2009-2010 school year, MPS transferred 276 students. The year before, 299 were transferred.

Because race and class are closely correlated in Minnesota, most don’t come from homes where parents have the wherewithal to hire attorneys and pursue a claim that might take two years to resolve. If Reilly’s assertion that the transfers constitute de facto expulsions is borne out, that means minorities are suffering in hugely disproportionate numbers.

Late last month the federal judge presiding over the case, Patrick Schiltz, denied J.K.’s request for a preliminary injunction allowing him to stay in school at Southwest pending trial. As a consequence, on Monday J.K. will start classes at a new district high school.

Scheduled for trial next summer
The case is not scheduled to go to trial until next August, three months after J.K. is scheduled to graduate and more than a year after he was removed from his rigorous academic track and rendered ineligible to continue playing varsity sports because of the transfer.

By then, he and his parents said, the damage to his academic and athletic careers will have been done, but the principle involved is important to them.

J.K. is heartbroken. “I’ve been at the school for two and a half years,” he said. “I’ve created a lot of great relationships with kids and teachers. I’ve worked really hard.

“Going to a new school as a senior, and trying to get involved in the community and adjust and play sports — that would be impossible,” he added.

On top of everything, the school missed out on an opportunity to engage the kids in a conversation about behavior that was admittedly at least offensive. Instead, said Tim Nolan, J.K.’s classmates watched while he was punished for answering an administrator’s questions honestly.

“If the kids are learning anything,” said Nolan, “it’s that if the principal calls you in and starts asking questions, you better call your parents.”