7 minute read
Legal Forum
A Suspended Student Returned to School and Was Charged with Trespassing
Dr. Dave Dagley, Professor Emeritus, University of Alabama
Dr. Amy Dagley, Assistant Professor, University of Alabama at Birmingham
X.B. was a student in a Florida middle school, who was involved in an incident with another student during physical education class and was sent to the dean of students. The dean of students told X.B. he was suspended from school that day, and that he was not to return from school until a parent or guardian came to the school. The dean gave X.B. an exclusionary letter to give to his parent, which included the admonition not to return until a parent or guardian came to the school. X.B. came back to school the next morning, and when he returned to his physical education class, he was arrested for trespassing. This commentary arises from the court record for X.B. v. State, 337 So.3d 99, 402 Educ. L. Rep. 1245 (Fla. Dist. Ct. App. 2021).
Because X.B. was a minor, the charge against him was heard in an adjudicatory hearing in a juvenile trial court. Florida has a statute that criminalizes trespassing on school property, which reads as follows:
X.B.’s mother testified that she had not received the exclusionary letter and that the school had not called her. She further testified that X.B. had told her that he could not go to school the next day unless she met with school officials, but she did not believe him and nonetheless had someplace else she needed to be, so she dropped him at school the next day. X.B.’s attorney argued that in those circumstances, the state had failed to prove that X.B. was actually suspended at the time of trespass, and had also failed to prove that he “willfully” entered or remained on school grounds. The trial court did not accept that argument, but withheld adjudication and placed X.B. on probation for six months. X.B. appealed.
The appeals court affirmed the decision of the trial court. The dean of students had addressed X.B. and directed him verbally that he was suspended, and the exclusionary letter was unnecessary to prove that X.B. was suspended. The dean of students’ testimony that he had advised X.B. that he was suspended was competent, substantial evidence that X.B. was indeed suspended. X.B.’s attorney had also argued that X.B. had not created the situation, when he was dropped off at school by his mother. The appeals court pointed out that the statute does not use the word “willfully,” so it wasn’t necessary to prove that X.B. intended to commit a trespass.
We selected this case for comment because neither of us recall seeing a case about trespass in a school, committed by a student who has been excluded from school by suspension. No doubt such cases have occurred and may be common, and in our school law courses we have frequently suggested that criminal trespassing statutes can be used to bar troublesome members of the public, including students, for example, from sporting events. One explanation may be that such situations do occur, but cases in state trial courts, especially those serving to adjudicate minors in juvenile courts, are not reported in the national reporting system. This case appeared in the system when it reached an appellate court.
Note that this case involves a Florida state law specifically for trespass in a school building. We do not know how many states have similar laws, but a quick search found such laws in just a few states. Alabama does not have a trespassing law for trespass in a school building, but it does have the Charles “Chuck” Poland, Jr., Act, which makes it a Class A misdemeanor for a person to trespass on a school bus, damage a school bus, refuse to leave a school bus, or impede the operation of a school bus. Section § 13A- 7-4.2 Code of Alabama (1975). The Alabama statute most likely to apply to situations where a person might have been banned from a school is criminal trespass in the third degree, Section § 13A-7-4 Code of Alabama (1975). That statute is written to say “a person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.” A companion definitions statute explains that “A person ‘enters or remains unlawfully’ in or upon premises when the person is not licensed, invited, or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.” Section § 13A-7-1(3) Code of Alabama (1975). This is identified as a “violation,” for which a court could punish the person with up to 30 days in jail and a fine up to $200.
The U.S. Supreme Court addressed student exclusions from school (suspensions and expulsions) in Goss v. Lopez, 419 U.S. 565 (1975). Suspensions are removal from school for ten days or less; expulsions are removal for a time period of more than ten school days. Suspensions require only minimal due process and may be accomplished by a certified school administrator. The due process necessary to suspend a student is very simple: (1) the school administrator gives oral or written notice of the charges against the student; (2) the student has an opportunity to present his side of the story; (3) the school administrator explains the evidence against the student. Expulsions require substantially more procedural steps and require an action by the school board to accomplish. The court in Goss did not list the steps required for an expulsion, but courts in various states have identified the following procedural steps for an expulsion: (1) notice in writing of the intent to expel; (2) notice in writing of a hearing before the school board; (3) right to counsel; (4) an expectation of impartiality on the part of the school board as a hearing body; (5) a right to subpoena and call witnesses; (6) right to a record of the proceedings; (7) vote by the school board.
School administrators should be alert to an important point: the first step in an effective suspension and the first step in prosecuting an effective trespass case against a student who wrongly returns to school during the suspension are exactly the same step. The school administrator must give notice to the student. Another important point is that neither the Supreme Court in Goss nor the Alabama Legislature in trespass law requires that the notice must be in writing. In Alabama a school board certainly has the authority to require a school administrator to give notice both verbally and in writing, but that would be for other reasons, such as seeking parental involvement or for safety or planning purposes, but not for due process reasons. One concerning fact not adequately addressed by the Florida court was that the exclusionary letter given to X.B. instructed that the child was not allowed to attend school until a parent or guardian came to school. A better way to phrase it would be to instruct that the student is suspended for the rest of this school day and ____ more days, or less upon a conference with the parent or guardian. An indeterminate length of time, controlled completely by the parent or guardian, may later be a problem for adjudicating a possible truancy claim, and arguably for a successful trespassing claim.
