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Judge: Student's constitutional rights violated
Rules 14-year-old who admitted drive-by-shooting entitled to suspension hearing

For the second time in slightly more than a year, a federal judge has ruled that the Todd County School District, superintendent and school board members have violated a student’s constitutional rights by suspending him without a proper hearing.

U.S. District Judge Charles Kornmann found in favor of the plaintiff, student Ernest Doe, along with his mother Danita Doe (both names are pseudonyms). Attorney Dana Hanna filed the complaint last December against the school district, superintendent Richard

Bordeaux and board members Randy Her Many Horses, Marlon Leneaugh, Charles Moe, Steve Her Many Horses and Troy Heinert.

The complaint alleged that Bordeaux and the board denied Doe, then an eighth-grader, of his right to a public education by improperly suspending him from school from Nov. 1, 2005, through May 17, 2006.

Hanna filed a similar suit against the district on behalf of another Todd County student, Levi Waln, under the Federal Civil Rights Act. Kornmann ruled in favor of Waln in September 2005.

Last week, Kornmann again found that the Todd County School District and its officials had violated a student’s rights.

“In the immortal words of Yogi Berra, it’s deja vu all over again,” Hanna said Tuesday. He said he had hoped the district would change its practices after the Waln case. “I suspect the second time around that somebody’s going to realize there’s a problem.”

In this case, Ernest Doe, then 14, admitted to being one of four students who drove past Todd County Middle School late on Oct. 14, 2005, and to firing a .22-caliber rifle near the school from a moving vehicle. No one was in the school or on the grounds at the time.

After the shooting, middle school Principal Peggy Diekoff suspended Doe from all classes and school activities. Doe’s parents were contacted about the suspension, which was to continue until there was a school board hearing.

In a letter dated Oct. 25, 2005, Bordeaux informed the Does that he was extending the suspension until Jan. 13, 2006. The Does were told they could contest the decision at a Nov. 1, 2005, school board hearing.

At the Nov. 1 hearing, it was noted that Ernest Doe was on an Individualized Educational Program, which meant that because of a learning disability, he had rights under the Individuals with Disabilities Education Act. The school board then referred action to Bordeaux, who said Doe should be put on disciplinary “home study” until testing could determine if his actions were related to his disabilities.

On Nov. 22, Bordeaux informed the Does that he was leaving Ernest on home study until the end of the school year and that Ernest was not to be on school grounds or at school activities during that time. After Doe’s attorneys filed for a preliminary injunction, Ernest was allowed to return to school on Jan. 23, 2006.

In his ruling, Kornmann noted that Diekoff and Bordeaux justified extending Ernest’s suspension based on vandalism to school property, even though the school handbook provides for only three days’ suspension for a first act of vandalism.

The school district also cited as justification the Gun Free Schools Act, which would have allowed for at least one year’s suspension. But because there was no proof Ernest Doe set foot on school property Oct. 14, Kornmann said that law did not apply.

Kornmann ruled that the board acted improperly by not making a decision after the Nov. 1 hearing and by leaving Ernest on suspension while he was being tested regarding his learning disabilities.

The ruling also notes that these incidents occurred barely a month after the court released the Waln opinion, which involved a student at Todd County High School.

As a result, Kornmann found that Bordeaux and the school board members named in this suit are liable for monetary damages because they knew they were violating the law.

“The defendants’ alleged conduct, in this case, is some of the very same conduct the court held violated Waln’s due process rights just a month earlier,” Kornmann wrote. “In short, the right to a public education is sufficiently clear that the defendants would have been aware what conduct was lawful and what was not.”

Later in the ruling, Kornmann stated that “the court reaches the determination, based on this conduct and based on the record, that the defendants did not conduct themselves as reasonably competent public officials.”

Bordeaux could not be reached for comment Tuesday. An attorney for the Todd County School District did not return a call from the Rapid City Journal.

Hanna said there was a monetary settlement in the Waln case. As for Ernest Doe, “He’s happy to be back in school,” Hanna said.

Hanna serves as the Rosebud Sioux Tribe’s attorney general but has filed suits against the school district through his private practice. He has also filed a suit against the Winner School District alleging racial discrimination. That case is still pending.