In the Matter of the Expulsion of A.D. from United South Central Public Schools No. 2134.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1587

In the Matter of the Expulsion of A.D. from
United South Central Public Schools No. 2134.

Filed July 20, 2015
Reversed
Johnson, Judge

Minnesota Department of Education

Andrea L. Jepsen, Amy J. Goetz, School Law Center, LLC, St. Paul, Minnesota (for
relator A.D.)

Trevor S. Helmers, Elizabeth J. Vieira, Rupp, Anderson, Squires & Waldspurger, P.A.,
Minneapolis, Minnesota (for respondent United South Central Public School No. 2134)

Lori Swanson, Attorney General, Martha J. Casserly, Assistant Attorney General,
St. Paul, Minnesota (for respondent Brenda Cassellius, commissioner of Department of
Education)

Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Johnson,

Judge .

UNPUBLISHED OPINION

JOHNSON, Judge

The United South Central School District suspended a student, A.D., after staff

found a knife in her purse during a search of her locker. After an evidentiary hearing, the

school board found that A.D. violated a school policy that forbids the possession of

weapons on school property and that she engaged in conduct that endangered herself and

others. Based on those two findings, the school board expelled A.D. for the remainder of

her junior year of high school, a period of approximately six weeks. The commissioner

of education affirmed the expulsion. On appeal, A.D. argues that her expulsion violates

the Pupil Fair Dismissal Act. We conclude that each of the bases for A.D.’s expulsion is

improper. The first basis is improper because the school board did not find that A.D.

willfully violated the applicable school policy when she carried the knife to school. The

second basis is improper because the evidentiary record does not support the school

board’s finding that A.D. willfully engaged in conduct that endangered herself or others.

Therefore, we reverse the expulsion.

FACTS

On the morning of Tuesday, April 15, 2014, members of the staff of United South

Central High School, which is located in the city of Wells, conducted a random search for

contraband. The school building was placed on lockdown status while a drug-sniffing

dog walked past students’ lockers. Students were required to remain in their classrooms.

A dog alerted on A.D.’s locker. School liaison officer Rick Herman performed a search

of the locker. He found a purse and, inside the purse, a three-inch-long “hunting-style

pocketknife.” Herman did not find any drugs in A.D.’s locker; he testified that the dog

may have alerted on A.D.’s locker because of the strong odor of perfume.

Herman secured the knife in his office and informed the school’s principal, Kelly

Schlaak, of the results of his search. Schlaak called A.D. to her office. Schlaak asked

A.D. whether she knew why she had been called to the principal’s office; A.D. answered,

“you probably found my knife.” A.D. said that she had put the knife in her purse over the

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weekend after using it to help with chores on her boyfriend’s family’s farm. She said that

she intended to remove it from her purse afterward but forgot to do so. She said that she

remembered that the knife was in her purse when the lockdown was announced. She

confirmed that she was aware that the school has a policy that does not allow her to

possess a knife at school.

Schlaak explained to A.D. that the school’s policy obligated her to suspend A.D.

for up to five days. Schlaak imposed a three-day suspension because A.D. was

cooperative and appeared to be telling the truth. Schlaak prepared a written statement

describing the incident, which A.D. signed. Schlaak informed A.D. that the school would

investigate further and refer the matter to the district superintendent for a determination

whether the district would commence expulsion proceedings.

On April 21, 2014, the school district served A.D. and her parents with a notice of

proposed expulsion. Three days later, the school board held a hearing on the proposed

expulsion. Herman, Schlaak, and superintendent Jeremy Jensen testified for the district.

A.D. testified on her own behalf, along with her father, her part-time employer, the high

school’s athletic director, and a former pre-school teacher. Both Schlaak and A.D.’s

witnesses testified that A.D. was an outstanding student who participated in sports and a

mentoring program.

On the same day as the hearing, the school board issued written findings of fact,

conclusions, and a recommendation that A.D. be expelled until the end of the 2013-2014

school year, a period of approximately six weeks. A.D. appealed the school board’s

expulsion decision to the commissioner of education pursuant to the Pupil Fair Dismissal

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Act (PFDA). See Minn. Stat. § 121A.49 (2014). On July 10, 2014, the commissioner

issued an order in which she affirmed the finding that expulsion is appropriate but

concluded that the school board had failed to adequately explain its reasons for the

duration of the expulsion. The commissioner remanded the matter to the school board

with directions to provide additional justification for the duration of the expulsion. The

school board reconvened on July 15, 2014, and issued a three-page letter to the

commissioner in which it explained the factors it considered when deciding to expel A.D.

for six weeks. On August 8, 2014, the commissioner issued a second order in which she

affirmed the six-week duration of the expulsion. A.D. appeals to this court by way of a

writ of certiorari.

DECISION

I. Mootness

In its responsive brief, the school district argues that A.D.’s appeal should be

dismissed as moot. The school district contends, “The period of [A.D.]’s expulsion has

passed and she has already returned to enrollment in the district.” In her reply brief, A.D.

argues that her appeal should not be dismissed as moot because she may suffer collateral

consequences as a result of her expulsion.

“Well established in this state’s jurisprudence is the precept that the court will

decide only actual controversies. If the court is unable to grant effectual relief, the issue

raised is deemed to be moot resulting in dismissal of the appeal.” In re Schmidt, 443

N.W.2d 824, 826 (Minn. 1989). An exception to the mootness doctrine exists if

“collateral consequences attach to the judgment.” In re McCaskill, 603 N.W.2d 326, 327

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(Minn. 1999). Under this exception, an appeal will not be dismissed as moot if the

appellant can identify collateral consequences arising from the judgment, and an

appellate court will presume that collateral consequences exist if “real and substantial

disabilities attach to a judgment.” Id. at 329 (quotation omitted).

A.D. contends that, without a decision from this court, she may suffer collateral

consequences from the expulsion because, for example, she will be required to disclose

the expulsion on applications to colleges and universities, and the expulsion may cause

her to be denied acceptance. The school district contends in turn that there is no evidence

in the record to support A.D’s argument concerning collateral consequences and that

A.D. will have been accepted to a college or university by the time this decision is

released. But “if real and substantial disabilities attach to a judgment, we do not require

actual evidence of collateral consequences but presume such consequences will result.”

Id. (quotation omitted). We presume that these collateral consequences exist because the

possible disadvantages that A.D. could suffer if she is required to disclose her expulsion

in undergraduate, postgraduate, or job applications are “real and substantial disabilities.”

See id.; see also Goss v. Lopez, 419 U.S. 565, 575, 95 S. Ct. 729, 736 (1975) (stating that

suspension from school “could . . . interfere with later opportunities for higher education

and employment”); State v. Jones, 516 N.W.2d 545, 546-47 n.1 (Minn. 1994)

(concluding, without reference to evidence in record, that appeal of criminal defendant

was not moot in part because “having a criminal record could affect his ability to obtain

future employment”). “A party may rebut this presumption of collateral consequences

only by showing there is no possibility” of collateral consequences. McCaskill, 603

5

N.W.2d at 329 (quotation omitted). The school district has not shown that there is no

possibility that A.D. will be disadvantaged by her expulsion. Thus, A.D.’s appeal should

not be dismissed as moot.

II. Expulsion

A.D. argues that the school board erred by expelling her in violation of the PFDA

and that the commissioner erred by upholding the school board’s decision.

Under the PFDA, a student who has been expelled has the right to appeal the

school board’s expulsion decision to the commissioner of education. Minn. Stat.

§ 121A.49. The student then may seek judicial review of the commissioner’s decision in

this court by way of a writ of certiorari. Minn. Stat. § 121A.50 (2014); Minn. Stat.

§§ 14.63-69 (2014). This court reviews the commissioner’s decision to determine

whether it is

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or
jurisdiction of the agency; or

(c) made upon unlawful procedure; or

(d) affected by other error of law; or

(e) unsupported by substantial evidence in view of
the entire record as submitted; or

(f) arbitrary or capricious.

Minn. Stat. § 14.69. We may affirm the commissioner’s decision, remand for further

proceedings, reverse, or modify the decision. Id. “Although in form we are reviewing

the commissioner’s decision . . . in substance we are reviewing the school board’s

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decision directly.” In re Expulsion of N.Y.B., 750 N.W.2d 318, 323 (Minn. App. 2008).

We defer to the school board’s factual findings so long as they are supported by

substantial evidence. See In re Denial of Eller Media Co.’s Applications for Outdoor

Advert. Device Permits, 664 N.W.2d 1, 7 (Minn. 2003); see also In re Expulsion of I.A.L,

674 N.W.2d 741, 746 (Minn. App. 2004) (applying substantial-evidence test to school

board’s findings). “Substantial evidence consists of: 1) such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion; 2) more than a

scintilla of evidence; 3) more than some evidence; 4) more than any evidence; and

5) evidence considered in its entirety.” Citizens Advocating Responsible Dev. v.

Kandiyohi Cnty. Bd. of Comm’rs, 713 N.W.2d 817, 833 (Minn. 2006) (quotation

omitted). “[W]e generally defer to a school board’s judgment on matters of student

discipline” because “[j]udicial intervention in the public-school system requires

restraint.” N.Y.B., 750 N.W.2d at 323.

The PFDA allows a school district to expel a student on any of the following

grounds:

(a) willful violation of any reasonable school board
regulation. Such regulation must be clear and definite to
provide notice to pupils that they must conform their conduct
to its requirements;

(b) willful conduct that significantly disrupts the
rights of others to an education, or the ability of school
personnel to perform their duties, or school sponsored
extracurricular activities; or

(c) willful conduct that endangers the pupil or other
pupils, or surrounding persons, including school district
employees, or property of the school.

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Minn. Stat. § 121A.45, subd. 2. In this case, the school board voted to expel 1 A.D.

through the end of the school year, a period of approximately six weeks, based on

paragraphs (a) and (c) of the above-quoted statute.

A.D.’s arguments implicate issues of the proper interpretation of the PFDA. “The

objective of all statutory interpretation is ‘to give effect to the intention of the legislature

in drafting the statute.’” State v. Thompson, 754 N.W.2d 352, 355 (Minn. 2008) (quoting

State v. Iverson, 664 N.W.2d 346, 350 (Minn. 2003)). “The principal method of

determining the legislature’s intent is to rely on the plain meaning of the statute.” Id. To

identify the plain meaning of a particular word used in a statute, it is appropriate to refer

first to the common usage of the word. See Gassler v. State, 787 N.W.2d 575, 586 n.11

(Minn. 2010). “We are to read and construe a statute as a whole and must interpret each

section in light of the surrounding sections to avoid conflicting interpretations.”

American Family Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000).

A. First Basis: Willful Violation of Regulation

A.D. first contends that the school board and the commissioner erred by

concluding that her expulsion satisfies paragraph (a) of section 121A.45, subdivision 2.

The school district has adopted a policy that states, “No student . . . shall possess,

use or distribute a weapon when in a school location.” It is undisputed that A.D.’s knife

1
Under the PFDA, expulsion is one type of dismissal. “‘Dismissal’ means the
denial of the current educational program to any pupil, including exclusion, expulsion,
and suspension” but “does not include removal from class.” Minn. Stat. § 121A.41,
subd. 2 (2014). “‘Expulsion’ means a school board action to prohibit an enrolled pupil
from further attendance for up to 12 months from the date the pupil is expelled.” Minn.
Stat. § 141A.41, subd. 5.

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is considered a weapon under the policy. According to the policy, “‘Possession’ means

having a weapon on one’s person or in an area subject to one’s control in a school

location.” The policy also contains a safe-harbor provision, which states, “A student who

finds a weapon on the way to school or in a school location, or a student who discovers

that he or she accidentally has a weapon in his or her possession, and takes the weapon

immediately to the principal’s office shall not be considered to possess a weapon.”2

After the evidentiary hearing, the school board concluded that A.D.’s “conduct at

school on April 15, 2014, constituted a willful violation of reasonable School Board

regulations.” This conclusion apparently is based on findings that A.D. “admitted that

the knife was hers and that the knife had been in her locker” and “stated she normally

took the knife out of her purse when she went to school, but that when the lockdown was

announced, she remembered that she had not taken it out of her purse.” The school board

also found that A.D. “stated she was worried that the knife may be found, but did not

report the fact that she had the knife to her teachers or the principal.” The school board’s

conclusion also is based on the following reasoning:

[A.D.] knew, or should have known, that she could be
expelled for bringing a knife to school. While she stated that
she simply forgot that the knife was in her bag, she admitted
that she immediately remembered that the knife was in her

2
The safe-harbor provision of the policy was not fully and accurately restated in
the student handbook and the student agenda book, which are the two primary means by
which the school district communicates the policy to students. In each of those
documents, the description of the safe-harbor provision omits the phrase, “or a student
who discovers that he or she accidentally has a weapon in his or her possession.” Those
documents state merely, “A student who finds a weapon on the way to school or in a
school building [or any school location] and takes the weapon immediately to the
principal’s office shall not be considered to possess a weapon.”

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bag when the notice was made about the locker searches, but
she did not immediately report it to her teachers or the
Principal.3

The commissioner concluded that the school board’s decision was supported by the

record and satisfied the statutory requirements.

A.D. contends that the school board erred because it did not find that she

committed a “willful violation” of the school district court’s weapons policy. The terms

“willful violation” and “willful” are not defined in the PFDA. A leading legal dictionary

defines “willful” to mean “[v]oluntary and intentional, but not necessarily malicious.”

Black’s Law Dictionary 1737 (9th ed. 2009). In the criminal context, this court has said:

Willful generally means a bad purpose or evil intent in
statutes involving moral turpitude. U.S. v. Illinois Central
Railroad, 303 U.S. 239, 58 S. Ct. 533, 82 L. Ed. 773 (1938);
State v. Bowers, 178 Minn. 589, 228 N.W. 164 (1929). In
misdemeanor statutes, it means a voluntary, knowing and
intentional act, as distinguished from accidental, involuntary
or unintentional. U.S. v. Perplies, 165 F.2d 874 (7th Cir.
1948). See, Illinois Central Railroad, 303 U.S. at 242-43, 58
S. Ct. at 534-35.

State v. Green, 351 N.W.2d 42, 44 (Minn. App. 1984); see also State v. Cyrette, 636

N.W.2d 343, 348 (Minn. App. 2001) (concluding that “willfully,” as used in child-neglect

statute, means “intentional”), review denied (Minn. Feb. 19, 2002).

3
Schlaak asked A.D. if she had brought her purse to school on the prior day, and
A.D. said that she had not done so. During the ensuing investigation, Herman reviewed
surveillance video-recordings and saw that A.D. had brought the same purse to school on
the day before the knife was found, and the school board found that A.D. had therefore
also brought the knife to school the day before the lockdown. In any event, the school
board’s finding that A.D. lied is limited to that one particular statement about the day
before the lockdown. The school board did not find A.D. to be not credible in general
and did not find that her misstatement concerning the prior day undermined her
statements concerning the day in question.

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To reiterate, the PFDA requires not just willful conduct but a “willful violation.”

Minn. Stat. § 121A.45, subd. 2(a). The supreme court has explained the meaning of the

term “willful violation” on only one occasion. In the context of a party’s failure to

respond to discovery requests, the supreme court has defined “willful violation of

discovery rules” to require “a knowing awareness of the duty imposed . . . and, in spite of

this awareness, a deliberate, conscious, and intentional choice to disregard this duty.”

Garrity v. Kemper Motor Sales, 280 Minn. 202, 207, 159 N.W.2d 103, 107 (1968).

Accordingly, paragraph (a) of section 121A.45, subdivision 2, requires not just that a

student violates a school policy but also that the student is aware of the policy and makes

a “deliberate, conscious, and intentional choice” to violate the policy. See id.

In this case, the school board did not find that A.D. willfully violated the weapons

policy by carrying a knife into the school building in her purse on April 15, 2014. The

school board did not find that A.D. was aware that she was in possession of a knife when

she entered the school building or at any time before the lockdown. The school board

seems to have accepted as true A.D.’s testimony that she forgot about the knife when

going to school on that day. The school board’s order does not state that A.D.’s

testimony on that point was not credible. Thus, the findings of fact in the school board’s

order are not sufficient to support the school board’s conclusion that A.D. willfully

violated the school’s weapons policy by carrying the knife to school in her purse.

The school district suggests that A.D. willfully violated the school’s weapons

policy because her conduct does not satisfy the requirements of the safe-harbor

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provision.4 The school district’s suggestion fails for two reasons. First, the record

demonstrates that the terms of the safe-harbor provision were not “clear and definite,” as

required by the PFDA. See Minn. Stat. § 121A.45, subd. 2(a). The school district

maintained multiple documents that described the safe-harbor provision, and each

document did so in a different way. The school district seeks to rely on a version that

allows a student to avoid punishment by turning in his or her own weapon to school

administrators. But the two versions that the school provided directly to students do not

allow a student to avoid a violation by turning in his or her own weapon; those versions

would allow a student to avoid a violation if the student finds and then turns in someone

else’s weapon. A.D. testified that she was unaware of any opportunity to avoid a

violation by making a voluntary self-disclosure. The school board did not make any

contrary finding. The school district cannot establish that A.D. willfully violated the

safe-harbor provision of the weapons policy without evidence and a finding that A.D.

was aware of the terms of the particular version of the safe-harbor provision that she was

alleged to have violated.

4
We question whether a student commits an independent violation of the school
district’s weapons policy if the student’s conduct does not trigger the safe-harbor
provision. The school district’s written and oral arguments are unclear and seemingly
inconsistent as to whether the safe-harbor provision is an independent basis for a
violation of the policy. It appears that the safe-harbor provision is not an independent
basis for a violation; rather, the safe-harbor provision simply allows a violation to be
negated if a student makes a voluntary self-disclosure. Nonetheless, for purposes of a
thorough discussion of the school district’s arguments, we assume without deciding that a
student violates the school district’s weapons policy by not making a voluntary self-
disclosure.

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Second, even if A.D. had been aware of the version of the safe-harbor provision

that the school district has invoked, she was prevented from complying. All versions of

the safe-harbor provision state that a student “shall not be considered to possess a

weapon” if the student “takes the weapon immediately to the principal’s office.” During

the lockdown, however, A.D. was prohibited from leaving her classroom. After the

lockdown, she could not have complied with the safe-harbor provision because Herman

had confiscated the knife, thereby removing it from her possession. The school district

cannot establish that A.D. willfully violated the safe-harbor provision of the weapons

policy by not verbally informing a member of the school’s staff of the existence of a

weapon elsewhere in a school building because the safe-harbor provision does not allow

a student to avoid a violation by that type of self-disclosure.

Therefore, A.D. did not willfully violate the school district’s weapons policy by

bringing a knife to school or by not disclosing the existence of the knife after the

lockdown began.

B. Second Basis: Willful Conduct Endangering Self or Others

A.D. also contends that the school board and the commissioner erred by

concluding that her expulsion satisfies paragraph (c) of section 121A.45, subdivision 2.5

5
The commissioner did not affirm the school board on this ground, even though
A.D. argued to the commissioner that the school board erred by concluding that she
engaged in willful conduct that endangered herself or others. The commissioner
considered only whether A.D. willfully violated a school regulation and affirmed the
school board on that basis. In her appellate brief, A.D. challenges both of the school
board’s bases for her expulsion. She does not contend that the expulsion is not justified
by the second basis on the ground that the commissioner did not affirm the school board

13

After the evidentiary hearing, the school board concluded that A.D.’s “conduct at

school on April 15, 2014, constituted . . . willful conduct that endangered [A.D.], other

pupils, and surrounding persons.” This conclusion apparently is based on the undisputed

fact that A.D. carried a knife into the school building inside her purse, which was stored

inside her locker, as well as the finding that she “created a material and substantial risk of

harm to other students and staff by possessing a knife on school property.”

A.D. contends that the school board erred by concluding that she engaged in

willful conduct that endangered herself or others. The term “endanger” is not defined in

the PFDA. The plain meaning of the word “endanger” is “to bring into danger or peril of

probable harm or loss.” Webster’s Third New International Dictionary 748 (3d ed.

1961). The school district relies on Jensen’s testimony that the presence of A.D.’s knife

in her locker endangered students and staff because “it could get into the wrong hands.”

There was no finding and no evidence that A.D. intended to remove the knife from her

purse while at school or that any other student was aware of the presence of a knife inside

her purse inside her locker. The mere presence of A.D.’s knife inside her purse inside her

locker may give rise to the potential for danger, but it does not rise to the level of

“probable harm or loss.” See id. This interpretation of the PFDA is consistent with the

supreme court’s observation, in a juvenile delinquency prosecution for possession of a

knife in a school, that “knives as common household utensils are clearly not inherently

dangerous, as they can be used for a myriad of completely benign purposes.” In re

on that basis. Thus, we will consider and resolve A.D.’s argument that the school board’s
second basis for the expulsion is erroneous.

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Welfare of C.R.M., 611 N.W.2d 802, 810 (Minn. 2000). The PFDA permits a school

district to expel a student for willfully violating a reasonable policy, and the school

district in this case had a policy that prohibits the possession of a weapon in the school.

But the structure and language of section 121A.45, subdivision 2, indicates that

paragraph (c) requires something more than conduct that creates the mere possibility of

harm, which may be regulated by a policy that may be vindicated pursuant to paragraph

(a). Thus, the evidence in the record of the school board’s evidentiary hearing does not

support the school board’s conclusion that A.D. engaged in willful conduct that

endangered herself or others.

In sum, we reverse the decisions of the school board and the commissioner. See

Minn. Stat. § 14.69; In re Wang, 441 N.W.2d 488, 492-94 (Minn. 1989) (reversing and

granting relief to relator because agency decision was affected by error of law and lacked

substantial evidence); Beaty v. Minnesota Bd. of Teaching, 354 N.W.2d 466, 471 (Minn.

App. 1984) (reversing and granting relief to relator because agency decision was affected

by error of law).

Reversed.

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