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Dean Nielsen Jr., Andrew Nelson, & Jerod Burns
Dean & Jane Nielsen, Roger & Evelyn Nelson, John & Tracy Burns
Audubon Community School District
Full Text

On Saturday night, March 23, 1996, Jerod Burns went to the local Amoco Station, where Andy Nelson was working. Dean Nielsen was there working on his pickup truck. All three boys were seniors at Audubon High School. Throughout their high school careers, all of the boys had been active in extracurricular activities. Dean Nielsen participated in football, golf, band, and show choir. He had also played basketball and baseball until recently when an eye problem forced him to drop out of these activities. Andy Nelson participated in golf, band, chorus, basketball, baseball, and football, in addition to maintaining a place on the honor roll. Jerod was active in football, track, wrestling, baseball, and band. He, too, was an honor roll student. At the time of the "incident" in question, the three friends were members of the percussion section of the school band. They were looking forward to playing in the Festival of Bands and the large group state band contest. But most of all, they were anticipating the band's trip to Florida, which was to occur the first part of June. The Florida trip was an event that had been scheduled by the school four years before. Since that time, the funds to pay for the trip were being raised by band students working in conjunction with the Band Parents Booster Club.

After Andy Nelson got off work that evening, the three boys decided to drive around together in Dean's pickup truck. They were driving in the country when they found some dead animals beside the road. There were three pigs, a ewe and a sheep. The boys loaded the dead animals in the back of the pickup truck and drove into town. On the way, they passed by the home of Mr. Ewing, the chorus teacher. Noticing that their band teacher's car was at Mr. Ewing's, they proceeded to drive to the band teacher's home and dump all of the dead animals on his lawn. Later that evening, they reconsidered their actions. When they returned to the band teacher's home to remove the animals, they discovered that Mr. Tinder had come home and called the police. Too scared to stop, they drove on by. On Sunday, Jerod confessed to his parents. On Tuesday, March 26, 1996, all three students went to see Mr. Tinder to confess and apologize. The reason they did not go in to talk to him on Monday was because Dean Nielsen was serving the final day of a three-day suspension. Mr. Tinder accepted the boys' apologies.

The gist of the parents' appeal is that the boys were expelled from a class for which they receive credit even though the act did not take place in band class or on school property. They question whether the students could have been expelled from any other academic class for behavior occurring outside of that class. In addition, the parents complain that the good conduct policy was not followed by the principal when he disciplined the boys. They disagree with the principal's decision to discipline the boys without discussing the incident with them; obtaining parental input or involvement with the decision; without taking into account any mitigating circumstances or considering the boys'prior discipline records. The parents also cited three other examples of inconsistencies in discipline and policy carried out by the administration and the board.

When the special meeting of May 14, 1996, was convened, only three of the five Board members were present. One Board member was missing because of an illness in her family, and the other Board member was missing "because he had another commitment." The Board did not want to vote on a decision at this meeting because they wanted to question the principal and teacher involved. When the parents asked why the principal and teacher were not present at this meeting, they testified that they did not receive an answer. The parents then agreed to wait until May 20, 1996, for a meeting in which all the Board members could be present and a vote could be taken. At the May 20th meeting, the parents were advised that the two members of the Board who were not present at the special meeting would not be allowed to vote on the appeal. The Board president took one of the Board members outside in the hallway and conducted a private discussion. When that Board member returned to the meeting, the Board president repeated the process with the other Board member. After this was done, the motion was made to "uphold the disciplinary action administered by Dan Lowe regarding students removed from band." Their primary challenge is to the authority of the principal to abandon a duly-adopted and applicable policy of the school board in favor of his own system of justice. Secondly, they challenge the administration's denial of academic credit for misconduct which did not occur on school grounds or at a school-sponsored activity.In the case before us, it is possible that these students' misconduct could have been reached by the Board's general discipline policy. There appears to be the requisite "direct and immediate relationship to the operation and management of the school" required by the courts

There is no dispute that the good conduct policy applied to Appellants' sons when they deposited the animal carcasses on the band teacher's lawn. It is also undisputed that the policy was not followed. Both Superintendent Reifenrath and the parents testified that Principal Lowe did not want to follow it, and that he devised his own punishment.There is no authority in the Law for a school principal to go outside of the bounds of duly-adopted board policies to impose suspensions or academic sanctions for misconduct. The failure of the Principal to follow the good conduct policy, alone, would have prevented us from sustaining the discipline imposed. But there is another problem: denying the students their fourth quarter grade in band. The withholding of academic credit as punishment for non-academic misconduct is hardly ever allowed. Courts have generally disfavored the practice of reducing grades or denying academic credit based on non-academic misconduct or reasons. Courts have considered grade reductions an unwarranted "double punishment" and an improper technique whereby an educational institution makes a clear misrepresentation of the student's scholastic achievement.

That the decision of the Audubon Community School District's Board of Directors made on May 20, 1996, is hereby recommended for reversal.