IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

BOARD OF EDUCATION OF THE )

SMYRNA SCHOOL DISTRICT, )

)

Appellant, )

)

v. ) C.A. No. N18A-03-001 ALR

)

E.D. and DELAWARE )

STATE BOARD OF EDUCATION, )

)

Appellee. )

Submitted: September 14, 2018

Decided: December 11, 2018

MEMORANDUM OPINION

On Appeal from the Decision of the Delaware State Board of Education

AFFIRMED

David H. Williams, Esq., James H. McMackin, III, Esq., and Allyson Britton 

DiRocco, Esq., Morris James LLP, Wilmington, Delaware, Attorneys for Appellant.

Valerie A. Dunkle, Esq., Deputy Attorney General, Department of Justice, 

Wilmington, Delaware, Attorney for Appellee.

ROCANELLI, J.
1

This is an appeal from the decision of the Delaware State Board of Education 

(“DE Board of Ed”) reversing the expulsion of E.D., a sophomore special education 

student at Smyrna High School (“Smyrna High”), which is part of the Smyrna 

School District (“School District”). The Board of Education of the Smyrna School 

District (“Smyrna School Board”) sought to expel E.D. for an entire academic year 

(180 days). The DE Board of Ed correctly concluded that the expulsion decision of 

the Smyrna School Board was made in an arbitrary and capricious manner, lacked 

substantial evidence to support the discipline imposed, and violated E.D.’s 

fundamental due process rights. For the reasons set forth below, the DE Board of 

Ed’s decision is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

E.D. was 16 years old and received special education services. On September 

19, 2017, E.D. was involved in a physical altercation with another student in a 

classroom at Smyrna High. School personnel attempted to intervene and separate 

the fighting students. When those efforts failed, the School Resource Officer 

(“SRO”) pulled out his taser and pointed it at E.D. who was then handcuffed and

placed under arrest.

1

 Smyrna High was put on lockdown until additional law 

 

1 According to the SRO, he deployed his taser to give E.D. “one final chance to 

comply with his directives.” While there is a reference in the record to a verbal 

threat by E.D. towards the SRO, but there is no record evidence to support a finding 

of any threat.
2

enforcement officers arrived and removed E.D. from the building. E.D. was charged 

with the misdemeanor offenses of “Resisting Arrest” and “Disorderly Conduct” but 

those charges were dismissed in Family Court. 

A so-called “building discipline conference” was held at Smyrna High on 

September 22, 2017. This was a 15-minute conference attended by E.D., his

guardian who is his foster mother, and a foster care case worker. During this 

conference, E.D. was notified that he was facing disciplinary action and was told 

that a hearing would take place. 

On the same day as the building discipline conference, a manifestation 

determination meeting also took place. When a student receiving special education 

services is facing disciplinary action for alleged misconduct, a manifestation 

determination meeting is held to review the incident and the identified disability 

from the student’s Individualized Education Program (“IEP”). At the conclusion of 

this meeting, E.D.’s IEP team determined that E.D.’s conduct was not a 

manifestation of his disability.

A notice of “Disciplinary Hearing” was then mailed to E.D. who was advised 

with his foster mother that he had a right to be present at the Disciplinary Hearing 

and to bring witnesses. E.D. was also advised he had a right to legal counsel. 

The Disciplinary Hearing took place on October 12, 2017. The Hearing 

Officer introduced herself and explained that the burden of proof was by a 
3

preponderance of the evidence.2 E.D was present with his foster mother and foster 

care case worker. The School District’s Assistant Superintendent and Smyrna 

High’s Assistant Principal were present. 

Although the hearing was transcribed, the record is confused. Documents 

were admitted but not clearly identified.3 Similarly, references are made to 

individuals without identifying each individual’s role.

The School District’s Assistant Superintendent and Smyrna High’s Assistant 

Principal presented written reports by reading the reports aloud, including a report 

from Smyrna High’s Principal recommending expulsion. Although the SRO is not 

identified on the transcript cover sheet as one of the persons present, the SRO was 

asked if his police report was accurate and he responded “yes, it is.” Other than the 

SRO, the persons whose reports were read into the record were not made available 

for cross-examination. 

E.D.’s foster mother made a presentation in which she explained that the 

Family Court charges had been dropped. While acknowledging that there should be 

consequences for her foster son’s behavior, she protested expulsion as too harsh. 

E.D.’s foster mother further stated that E.D. “is a good student and, besides this, he 

 

2 Although the Hearing Officer stated the standard for the burden of proof, the 

Hearing Officer did not state which party carried that burden. 

3 For example, a “student information packet” is referenced, but the record does not 

reflect what documents were included or whether the packet was given to E.D. and 

his foster mother in advance of the hearing. 
4

has had no other issues with the school.” E.D.’s foster mother asked that E.D.’s 

relative youth and brain development be taken into account. She pleaded that E.D. 

be given a second chance. E.D. apologized. 

The Hearing Officer issued a report (“Report”) dated October 13, 2017

recommending the expulsion of E.D. for violations of the Smyrna High School 

Student Code of Conduct (“Code of Conduct”) “by fighting, behaving in a disorderly 

manner, and resisting arrest.” E.D.’s foster mother was advised by letter dated 

October 13, 2017 that the Smyrna School Board “will sit in session on Wednesday, 

October 18, 2017 at approximately 7:45 p.m. in the Smyrna School District (John 

Basset Moore Intermediate School) to hear the results of the Hearing Officer for 

[E.D.] and to inform you of your child’s status in the Smyrna School District.” E.D. 

and his foster mother were “invited to attend” but not required to attend. 

Based on the record presented to this Court, it seems that the hearing before 

the Smyrna School Board was merely a review of the proceedings before the Hearing 

Officer. The record does not include any explanation of the standard of review, only 

that the Smyrna School Board “heard the results of the student hearing.” Smyrna 

School Board issued a letter dated October 23, 2017 informing E.D.’s foster mother 

that E.D. was expelled “for 180 days with educational services to be determined by 

the IEP team.” E.D.’s foster mother was not advised how to arrange for alternate 

education for E.D. and E.D.’s foster mother was further informed that “[i]n 
5

Delaware, no expelled student is permitted to enroll in another public or charter 

school for the duration of the expulsion period.” 

E.D.’s foster mother filed an appeal with the DE Board of Ed. After a review 

of the entire record, the DE Board of Ed voted to reverse the expulsion, finding the 

decision of the Smyrna School Board was arbitrary and capricious, not supported by

substantial evidence, and in violation of the Department of Education due process 

requirements.

4

 The Smyrna School Board now appeals the DE Board of Ed’s 

decision to reverse E.D.’s expulsion. 

STANDARD OF REVIEW

Appeals from a Board of Education decision may be made to the Superior 

Court, pursuant to Superior Court Rule 72(a).5 This Court’s appellate review is 

limited to correcting errors of law and determining whether the decision is supported 

by substantial evidence.

6

 Substantial evidence is defined as “such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion.”7

 

4 These requirements were directed by statute and set out by administrative 

regulation. 14 Del. C. § 122(b)(26); 14 Del. Admin. C. §616.

5 Super. Ct. Civ. R. 72(a) (“This Rule shall apply to appeals to the Superior Court 

from all commissions, boards, hearing officers under the Personnel Rules for NonJudicial Employees, or courts from which an appeal may at any time lie to the 

Superior Court to be tried or heard on the record made below.”).

6 29 Del. C. § 10142(d).

7 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. 

Comm’n, 383 U.S. 607, 620 (1966)).
6

Here, the Court is reviewing the decision of the DE Board of Ed to reverse the 

decision of Smyrna School Board. Delaware law provides that the DE Board of Ed 

“shall overturn the decision of a local board only if it finds .... that the local board’s 

decision was contrary to a specific state or federal law or regulation, was not 

supported by substantial evidence, or was arbitrary or capricious.”8 The Delaware 

courts have interpreted the statute as requiring that the DE Board of Ed uphold a 

decision by a local board imposing punishment of a student unless “such punishment 

is so disproportionate to the offense in light of all the circumstances as to be shocking 

to one’s sense of fairness.”9 Decisional law has emphasized that the Superior Court

“cannot substitute its judgment for the judgment of the school authorities.”10

Accordingly, if substantial evidence exists to support the DE Board of Ed’s findings, 

and the Board has not committed any error of law, the decision must be affirmed.11

ANALYSIS

I. The Decision of the Smyrna School Board Violated Due Process

As established by the Supreme Court of the United States in Goss v. Lopez, a 

student’s entitlement to a public education is a property interest “which may not be 

 

8 14 Del. C. § 1058.

9

Jordan v. Smyrna Sch. Dist. Bd. of Educ., 2006 WL 1149149, at *1 (Super. Ct. Feb. 

15, 2006) (quoting Warmouth v. Delaware State Bd. of Exam’rs in Optometry, 514 

A.2d 1119, 1123 (Del. Super. 1985) aff’d, 511 A.2d 1 (Del. 1986).).

10 Bd. of Educ. Laurel Special Sch. Dist. v. Shockley, 155 A.2d 323, 327 (Del. 1959).

11 Jordan, 2006 WL 1149149, at *1; Brumbley v. Bd. of Educ. of Polytech Sch. Dist., 

1998 WL 283378, at *1 (Del. Super. Feb. 18, 1998).
7

taken away for misconduct without adherence to the minimum procedures required 

by [the Due Process Clause].”12 “The fundamental requirement of due process is the 

opportunity to be heard ‘at a meaningful time in a meaningful manner.’”13 Delaware 

has enacted procedures to ensure that public school districts do not interfere with a 

student’s right to an education without due process.

14

 

Relevant to this appeal, the Department of Education affords certain 

procedural safeguards for students at expulsion hearings, such as the right “[t]o 

cross-examine witnesses.”15 The purpose of procedural safeguards “is to avoid 

unfair or mistaken exclusion from the educational process, with all of its unfortunate 

consequences.”16 The Court has recognized that there is a great risk of erroneous 

deprivation of a student’s interest in a public education when the student is not given 

an opportunity to fully develop his or her case through cross-examination of 

witnesses.17 

It is clear from the record before this Court that the Smyrna School Board 

failed to provide for meaningful cross-examination at the Disciplinary Hearing. The 

 

12 Goss v. Lopez, 419 U.S. 565, 574 (1975).

13 Mathews v. Eldridge, 424 U.S. 319, 333 (citing Armstrong v. Manzo, 380 U.S. 

545, 552 (1965)).

14 14 Del. C. § 122(b)(26); 14 Del. Admin. C. §616.

15 14 Del. Admin. C. §616.10.3.11.2.

16 Goss, 419 U.S. at 579.

17 Bd. of Educ. of New Castle Cty. Vocational Tech. Sch. Dist. v. Clark, 1988 WL 

47096, at *2 (Del. Super. May 3, 1988).
8

Principal’s recommendation, the police report, and two witness statements were 

included in the record upon which the Smyrna School Board based its decision, yet 

the Principal and two other witnesses did not testify and were not available to be 

cross-examined.

18

 The DE Board of Ed noted that not one witness to the fight 

between E.D. and the other student was present at the Disciplinary Hearing.

It was fundamentally unfair and a violation of due process for the Hearing 

Officer to consider statements of three witnesses without providing the student an 

opportunity for cross-examination. The DE Board of Ed correctly concluded that 

cross-examination was necessary for the minimum due process required in expulsion 

hearings and the Court must not set the correct decision of the DE Board of Ed 

aside.19

II. The Decision of the Smyrna School Board was Arbitrary and Capricious

The scope of judicial inquiry encompasses the adequacy of both the evidence 

considered by the decision-making agency as well as the adequacy of the process by 

which the relevant evidence and facts were obtained.20 Although judicial review of 

 

18 As noted previously, the SRO was present at the Hearing when his police report 

was read into the record. E.D.’s foster mother was asked if she had any questions 

for the SRO.

19 See Clark, 1988 WL 47096, at *2 (Where serious questions of witness credibility 

arose, the Court did not interfere with the DE Board of Ed’s conclusion that the 

student’s right to have cross-examination at an expulsion hearing was necessary to 

satisfy due process standards).

20 Harmony Constr., Inc., v. State Dep’. of Transp., 668 A.2d 746, 750 (Del. Ch. 

1995).
9

administrative decisions is traditionally deferential, “[i]mplicit in the deferential 

‘arbitrary and capricious’ standard of review is the premise that the agency has 

employed a decision-making process rationally designed to uncover and address the 

available facts and evidence that bear materially upon the issue being decided.”21

Arbitrary and capricious is usually ascribed to action which is 

unreasonable or irrational, or to that which is unconsidered or which is 

willful and not the result of a winnowing or sifting process. It means 

action taken without consideration of and in disregard of the facts and 

circumstances of the case.22

The DE Board of Ed appropriately found that Smyrna School Board’s 

decision to expel E.D. for an entire academic year is not warranted under Smyrna 

High’s own disciplinary policies as set out in the Code of Conduct. E.D. had no 

prior incidents involving fighting, and as the DE Board of Ed pointed out, a firsttime fight is not an expellable offense.23

 Additionally, the single Code of Conduct 

violation cited by the Smyrna School Board in support of the expulsion decision is 

applicable only to out-of-school criminal conduct.24 As the incident occurred

entirely within Smyrna High, the DE Board of Ed found that the decision to expel 

E.D. on this ground was not supported by the evidence presented at the Disciplinary

Hearing. Moreover, based on the record presented to the DE Board of Ed, the 

 

21 Id. at 751.

22 Willdel Realty, Inc., v. New Castle Cty., 270 A.2d 174, 178 (Del. Ch. 1970).

23 Smyrna High School Student Code of Conduct, School Year 2017/2018 at 12.

24 Id. at 10.
10

punishment of expulsion for an entire school year proposed for E.D. is “so 

disproportionate to the offense in light of all the circumstances as to be shocking to 

one’s sense of fairness.”25

Thus, a review of the record reveals a failure on the part of the Smyrna School 

Board to employ a rational decision-making process that considers all of the 

available facts and circumstances of the case and to ascribe a proportionate and fair 

punishment for E.D.’s actions. Therefore, the DE Board of Ed correctly determined 

that the decision of the Smyrna School Board to expel E.D. for a full academic year 

was unnecessarily harsh, contrary to the School District’s own policies and,

therefore, arbitrary and capricious.

CONCLUSION

The Court has examined the record and has determined that the DE Board of 

Ed correctly found that substantial evidence did not exist to support the Smyrna 

School Board’s decision to expel E.D. for an entire academic year. Moreover, the 

DE Board of Ed was correct that the Smyrna School Board acted in an arbitrary and 

capricious manner and failed to comply with the due process requirements set forth 

by federal and state law. 

 

25 Jordan, 2006 WL 1149149, at *1 (quoting Warmouth, 514 A.2d at 1123).
11

The Delaware State Board of Education decision to reverse the expulsion 

of E.D. must be and hereby is AFFIRMED.

IT IS SO ORDERED.

Andrea L. Rocanelli

________________________________________________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

The Honorable Andrea L. Rocanelli