Edward J. Gutman, LLC
Mediation & Arbitration Services
A local school system advised the mother of an elementary school student that her son’s enrollment at the elementary school he was attending would be discontinued because the student’s residence was outside the school’s attendance area.
In a hearing requested by the mother to contest the decision to remove her son, the only evidence produced by the school system in support of the decision to remove him from the school he was attending was testimony given by an administrator. She testified that she spoke by telephone with a pupil personnel worker who told her that she - the PPW - had conducted a visit to the rental office of an apartment complex outside of the residency area of the student’s school and was told by the assistant manager of the apartment complex that the student’s parents had a lease on an apartment in the complex. Also according to the administrator’s testimony, the PPW told her that she had spoken by telephone with the student’s father and that he confirmed that he and his wife had a lease on an apartment in the complex outside of the residency area of the student’s school. Based solely on this information which had been provided to her by the PPW, the administrator concluded that the student was fraudulently enrolled and should be withdrawn from the school he was attending.
In the hearing, the mother testified that although her name was on the lease of an apartment outside of the residency area, she was separated from her husband and that she and her son were living with her mother within the attendance area of her son’s school. In addition, she testified that her husband had not told the PPW that they were living together.
According to State Board regulations, local board decision are considered prima facie correct unless the local school systems’ decision was arbitrary, unreasonable or illegal. The school system here contended that it proved that the mother and her son lived outside the attendance area of the school he was attending by the testimony of the administrator that the assistant manager at the apartment complex outside of the attendance area told the PPW that the mother and student lived at that address.
There can be no dispute that the administrator’s testimony was based on hearsay - in fact, double hearsay. While it is generally accepted that the strict rules of evidence do not apply in administrative hearings, nevertheless, evidence taken on an issue being contested must be probative to the issues. Thus, for an agency to consider hearsay, the agency must carefully consider its reliability and its probative value. As one Court explained:
[I]t is well settled that the procedure followed in administrative agencies usually is not as formal and strict as that of the courts. As such, the rules of evidence are generally relaxed in administrative proceedings . . . that, while administrative agencies are not constrained by technical rules of evidence, they must observe basic rules of fairness as to the parties appearing before them . . . The Court has remained steadfast in reminding agencies that to be admissible in an adjudicative proceeding, hearsay evidence must demonstrate sufficient reliability and probative value to satisfy the requirements of procedural due process.
Giving meaning to that basic right of fairness is especially important when a young student’s education is involved, as in this case. Moreover, reliance on hearsay testimony risks faulty memory or a misunderstanding of what a speaker had actually said. In fact, an example of this risk was shown in this case demonstrating that words get lost in translation and when they are the words that could affect the well being of a student, heightened scrutiny is required .Thus, when the substance of what someone told them is put in evidence not even by them but by persons to whom they relayed the information, not only is the risk of misstatement increased but the opportunity to test that information for its accuracy is completely lost.
Accordingly, I found that the second hand information provided by the school administrator was too tainted to militate against the mother’s testimony that showed that she and her son resided within the school attendance are of the school he was attending. Indeed, to give weight to the hearsay evidence produced by the school system would ignore the court’s caution that evidence "must demonstrate sufficient reliability and probative value to satisfy the requirements of procedural due process." Moreover, to rely on the second hand testimony would completely ignore the mother’s testimony - albeit that it was hearsay as well - that her husband denied telling the PPW that she lived with him in the apartment outside her son’s attendance area.
The mother having met the burden of showing that her son lived within the attendance area of the school he was attending, I recommend that her appeal from the decision to remove him be sustained and that her son be allowed to attend his school for the remainder of the academic year.