6-7426-14751-3
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR
|
In
the Matter of the Student Discipline of R.K. |
FINDINGS OF
FACT, CONCLUSIONS
OF LAW, RECOMMENDATION,
AND MEMORANDUM |
This matter came on for hearing on March 5, 2002 in
Appearing on behalf of
R.K.[1]
appeared on his own behalf, without assistance of counsel.
The hearing began at approximately 9:30 a.m. on March 5,
2002, and it concluded shortly after 12:30 p.m. At the end of the hearing, Mr.
Driscoll submitted a Memorandum of Law regarding whether blocking an exit from
a room is a threatening or coercive act. R.K. was given the opportunity to file
responsive materials with the Administrative Law Judge by March 11, 2002, but
no such materials were received. The record in this matter was closed on March
11.
Please
take notice that this Report is a recommendation only and not a final decision. Chancellor James H. McCormick or his designee
will make the final decision after review of the record. The final decision may
adopt, reject, or modify these Findings of Fact, Conclusions of Law, and
Recommendation. Under Minnesota Statutes section 14.61, the final decision
shall not be made until this report has been made available to the parties to
the proceeding for at least 10 days. An opportunity must be afforded to each
party adversely affected by this report to file exceptions and present argument
to the final decisionmaker. Parties should contact Kristine Legler Kaplan,
MnSCU, 500 World Trade Center, 30 East Seventh Street, St. Paul, Minnesota
55101-4946, telephone 651-296-3905, to learn the procedure for filing exeptions
or presenting argument to the to the final decisionmaker.
Whether
The
following persons testified at the hearing:
1.
Carol Tulikangas, Vice President of Academic & Student
Affairs at HTC;
2.
Marty Patterson, Senior Dean of Instruction at HTC;
3.
Thomas Tonkin, Associate Dean of Academic Affairs at HTC;
and
4.
Ronald Kraft, Dean of Student Affairs at HTC.
Based upon the entire record herein, the Administrative Law
Judge makes the following:
1.
2.
The MnSCU Board has adopted policies to govern its member
institutions as authorized by Minnesota Statutes section 136F.06, subd. 1. As a
member of MnSCU, HTC is governed by these MnSCU Board Policies. Chapter 3.6 of
those Policies governs student conduct, and Part 7 of that chapter states the
following:
Students shall be provided an avenue of
appeal within the institution for any adverse outcome of a conduct proceeding.
In addition, in cases involving sanctions of suspension for 10 days or longer,
students shall be informed of their right to a contested case hearing under
3.
HTC has adopted College Policies. Among these College
Policies is the Code of Student Conduct. Violations of that code include
“[f]ailure to comply with directions of . . . college officials acting in the
performance of their duties,”[3]
“verbal abuse, threats, intimidation, … or other conduct which endangers or
threatens to endanger the health or safety of any person,”[4]
and “engaging in assault or battery upon a member of the college community . .
. .”[5]
4.
R.K. was enrolled as a student at HTC during Spring Semester
of 2001. That semester, R.K. attended two courses conducted by Instructor Roger
Beyer, and he received two “B” grades in those courses.
5.
In July 2001, Thomas Tonkin received a telephone call from
an employee in an office adjacent to the Registrar’s office.
6.
An appointment with Carol Tulikangas and R.K. was scheduled
for August 1, 2001 at 5 p.m. as the final step in an appeals process regarding
the two “B” grades that R.K. had received from instructor Roger Beyer in two
computer classes. Tulikangas did not talk with Beyer before her August 1
meeting with R.K., and Beyer was not invited to attend the meeting.[6]
7.
On August 1, 2001, R.K. arrived at Tulikangas’ office at
3:50 p.m., or an hour and ten minutes before the scheduled time. Since R.K. was
early, Tulikangas asked for ten minutes to prepare for the meeting. Tulikangas
had read that some R.K.’s actions leading up to the appeal appeared “threatening,”
so she asked Marty Patterson if he could remain in the area during the meeting
in case she needed help.[7]
At around 4 p.m., Tulikangas told R.K. that it was too hot in her office so she
would rather meet in Room F-150. Tulikangas chose Room F-150 both because it
was cooler and also because she wanted to be closer to Patterson.[8] Tulikangas and
R.K. then walked to Room F-150, and the door to the room was left open.
8.
R.K. and Tulikangas sat on opposite sides of a long
conference table, both near the end closest to the door.[9]
R.K sat on the side of the table closest to the door, and Tulikangas sat on the
side farthest from the door. Throughout the meeting, R.K. did most of the
speaking, and Tulikangas primarily listened. Shortly after the meeting began,
R.K. became agitated. With animated hand movements, R.K. told Tulikangas that
the grade appeal process “was a lie,” that Dean of Students Ronald Kraft had
“torpedoed” his appeal, and that teachers are supported unconditionally. R.K.
showed Tulikangas several documents[10]
detailing the grades that R.K. had received. In a loud and agitated manner,
R.K. argued that the numbers on those documents did not add up.
9.
Tulikangas told R.K. that if he wanted the conversation to
continue, he would need to calm down and stop making accusations. Soon after
hearing this, R.K. became more agitated and made more accusatory statements.
10.
After about five more minutes, Tulikangas stood up and told
R.K. that if they could not have a civil conversation, then the meeting was
over. Tulikangas walked around the table to leave the room. At the same time, R.K. stood up very quickly
and moved between Tulikangas and the door.[11]
There was no verbal exchange at this point, but R.K. stood very close to
Tulikangas,[12]
he crossed his arms, and he gave her an “intense” look. The combination of
these actions made Tulikangas feel “very threatened.”[13]
11.
Frightened, Tulikangas called Patterson’s first name and
yelled to Patterson and Thomas Tonkin to “call the police.” Within seconds,
Patterson and
12.
Tulikangas, who appeared to be upset and afraid,[15]
told Patterson that she needed help, that R.K. was blocking her path, and that
“[R.K.] won’t let me leave.” Patterson told Tulikangas that he would talk with
R.K., and Tulikangas then left the room. The entire meeting between R.K. and
Tulikangas lasted about ten minutes.
13.
After Tulikangas left, Patterson and R.K. sat at the table
and spoke for about fifteen to twenty minutes, while Patterson tried to calm
R.K. down. Patterson tried to ascertain what had happened between R.K. and
Tulikangas, but instead R.K. focused on the grade dispute. R.K. seemed “obviously upset,” claiming that
he was getting a “bum steer.” Patterson informed R.K. of the college’s
harassment policy. R.K. kept showing Patterson the documents relating to his
grades[16]
and argued that his grades should be changed.
14.
At the end of the conversation between R.K. and Patterson,
R.K. stated that he wanted to go to the financial aid office. That office is
next door to Tulikangas’ office, and Patterson feared Tulikangas was in her
office at the time. Patterson walked with R.K. to the financial aid office,
then watched as R.K. left the building unescorted. The police were never
called.
15.
On August 3, 2001 Dean of Student Affairs Ronald Kraft sent
a letter to R.K. stating that R.K. was being summarily suspended from HTC based
on the August 1 incident. Kraft scheduled an August 6 meeting with R.K. to
discuss the August 1 incident. It was Kraft’s duty to determine whether the
summary suspension was to be continued.
16.
On August 6, 2001 Kraft met with R.K. regarding the August 1
incident. The purpose of informal meeting was to give R.K. an opportunity to
present his side of the story and for Kraft to assess whether R.K. still posed
a safety concern. In that meeting, Kraft asked R.K. if he still posed a safety
concern to the college community. R.K. declined to answer the question and
responded that there was “no way that he could answer that question in a
meaningful way.”[17]
R.K. explained that if he answered no, Kraft would not be able to tell whether
R.K. was being truthful or not. On the other hand, if R.K. answered yes he
would be “condemning himself.”[18]
During the meeting, R.K. also spoke about corruption, violence, “justifiable
violence,” and—among other items—the righteousness of the Boston Tea Party.
R.K.’s statements that Tulikangas was “corrupt” were made in the same context
as his comments that violence may be sometimes justified.[19]
17.
On August 22, 2001, Kraft notified R.K. that the HTC Student
Conduct Panel would conduct a meeting on August 27 to review R.K.’s suspension.[20]
The Student Conduct Panel reviewed the testimony and documents presented at the
meeting, and it voted to impose the sanction of expulsion upon R.K.[21]
An August 28 letter from Kraft formally notified R.K. of the Panel’s decision.[22]
18.
On September 4, 2001, R.K. appealed the Panel’s decision and
filed a brief in support of his position.[23]
19.
On September 27, 2001, HTC President Sharon K. Grossbach
wrote a letter to R.K. informing him of her decision not to overturn the
Panel’s decision.[24]
In an October 19 letter to Grossbach,[25]
R.K. opted to have this contested case hearing.
On February 1, 2002, HTC issued the Notice and Order for Hearing,
setting March 5 as the date for this hearing.
Based
upon the foregoing Findings of Fact, the Administrative Law Judge makes the
following:
1.
The Administrative Law Judge and the HTC have jurisdiction
in this matter pursuant to Minnesota Statutes sections 14.50, 136F.06, subd. 1;
MnSCU Board Policy Chapter 3.6, Part 7; and HTC Code of Student Conduct, Part
4B.
2.
R.K. received timely and proper notice of the expulsion
hearing. HTC has complied with all applicable procedural requirements to
properly set this matter for contested case hearing.
3.
The HTC Code of Student Conduct prohibits certain conduct,
including:
a. Violation of published policies, rules,
procedures or regulations of the Board of Trustees or of the college.
b. Failure to comply with directions of . . .
college officials acting in the performance of their duties . . .
c. Physical or psychological abuse or
harassment of a person, including stalking; abuse or harassment through other
persons, or by use of electronic or other communication devices such as
audio/video recorders, computers, and telephones.
d. Physical abuse, verbal abuse, threats,
intimidation, coercion, or other conduct which endangers or threatens to
endanger the health or safety of any person
e. Engaging in fighting; engaging in assault or
battery upon a member of the college community or a visitor to the college;
engaging in obscene, abusive, lewd, or profane language; engaging in boisterous
or noisy conduct reasonably intended to arouse alarm, resentment, or anger in
others; disrupting classes, meetings, or other college activities.[26]
4.
The HTC Code of Student Conduct contains reasonable
regulations that are clear and definite, and those regulations were known to
R.K.
5.
On August 1, 2001, by refusing to comply with the decision
of Vice President Carol Tulikangas to terminate their meeting, and by blocking
her attempt to leave the room, R.K. violated the HTC Code of Student Conduct.
Specifically, R.K. did so by engaging in intimidation, coercion, and boisterous
conduct reasonably intended to arouse alarm, resentment, or anger in others.
6.
R.K.’s violations of the HTC Code of Student Conduct on
August 1, 2001 constitute grounds for expulsion.
Based upon the foregoing Conclusions, the Administrative Law
Judge makes the following:
It is respectfully recommended that the
proposed expulsion of R.K. be AFFIRMED.
Dated this 29th day of March, 2002.
|
|
/s/ Allan W. Klein |
|
|
ALLAN W.
KLEIN |
Reported: Tape Recorded.
No transcript prepared.
Under
Minnesota Statutes section 14.62,
subd. 1 (2001), HTC is requested to serve its final decision upon each party
and the Administrative Law Judge by first class mail or as otherwise provided
by law.
The
record supports HTC’s contention that R.K. has “[failed] to comply with the
directions of . . . college officials acting in the performance
of their duties.”[27]
At their August 1 meeting, when Tulikangas indicated that the meeting was over,
R.K. blocked her exit from the room—an action that was in direct opposition to
Tulikangas’ decision to end the meeting. Further, his demeanor caused alarm to
Tulikangas, as it reasonably would have alarmed most similarly situated people.
The
purpose of the instant hearing is not to ascertain what R.K.’s “B” grades
should have been. Rather, the question is whether R.K.’s actions on August 1
violated the Code of Student Conduct. While the grade dispute was the initial
purpose of the meeting, the grade dispute became overshadowed by R.K.’s
behavior on August 1, which is the issue at hand. While some evidence offered
by R.K. concerning his grades was admitted, the purpose of that admission was
to establish R.K.’s state of mind and attitude before and during the incident.
However, at no time did the scope of this proceeding change. The scope was, and remains, limited to R.K.’s
conduct on August 1, not whether his grades were correct.
The
evidence provided by HTC regarding the August 1 incident is for the most part
uncontested by R.K. With the exception of certain details of peripheral
importance,[28]
R.K.’s evidence and the testimony elicited agree. The evidence shows that the events of August
1 occurred as they have been outlined in the Findings of Fact. R.K. became
upset during his August 1 meeting with Tulikangas. Tulikangas made the decision
to end the meeting and leave the room, and R.K.—in a threatening and
intimidating manner—blocked her exit from the room.
Blocking
a person’s rightful exit from a room is inherently coercive behavior. The
United States Supreme Court has held that blocking a person from entering or
exiting the premises may be intimidating and prohibited conduct. Schenck v. Pro-Choice Network Of Western New
York, 519
R.K.
has a history of “boisterous or noisy conduct reasonably intended to arouse
alarm, resentment or anger in others.”[29]
The incident in the Registrar’s office to which Associate Dean Tonkin was
called was an example of the behavior that R.K. has exhibited in the past. R.K.
acknowledged that he was speaking loudly in both instances, but he does not
recognize that causing alarm in others by raising one’s voice is unacceptable
conduct. He states in his appeal materials that “Raising one’s voice is not
immoral.”[30]
However, the record shows that R.K.’s demeanor in both instances caused alarm
and fear to employees of the college.
In
addition, R.K. has continued to indicate that he may pose a threat of
continuing similar behavior in the future. At the August 6 meeting with Ronald
Kraft, R.K. asserted that raising one’s voice is not out of the ordinary, that
violence is sometimes justified, and—with regard to corruption—there is
sometimes “justifiable violence.” This evidence indicates that, if R.K. were
allowed to remain there, HTC might be forced to deal with similar situations in
the future.
R.K.
has argued that he does not believe that his actions were threatening,
intimidating, or coercive enough to justify the school’s decision to expel him.
While he may not perceive this to be the case, there is ample evidence to show
that R.K. violated the Student Code of Conduct by failing to comply with
Tulikangas’ decision to end the meeting. In the process, R.K. effectively
intimidated Tulikangas, and the actions would have intimidated any reasonable,
similarly situated person. R.K.’s subjective perceptions of his actions cannot
overcome the evidence on the record showing that R.K. violated the policies
outlined in the Code of Student Conduct.
HTC bears the burden of
demonstrating, by a preponderance of the evidence, that R.K.’s conduct on
August 1, 2001 constituted serious violations of the HTC Code of Student
Conduct. Based on the entire record in this matter, HTC has met its burden, and
the Administrative Law Judge recommends that the decision to expel R.K. be
affirmed.
A.W.K.
[1] While the respondent is over 18 years of age, the parties have stipulated that only R.K.’s initials will be used in this proceeding.
[2] HTC Code of Student Conduct (hereinafter “Code”), Parts 4(B)(5), (12) and (14).
[3] Code, Part 4(B)(5).
[4] Code, Part 4(B)(12).
[5] Code, Part 4(B)(12).
[6] Tulikangas testimony.
[7] Patterson’s office, Room F-151, is approximately ten feet from Room F-150, the location of the incident.
[8] Tulikangas testimony.
[9] See black dots on Exhibit 10. Exhibit 10 is an enlargement of the diagram in Exhibit 7, page 9.
[10] Exhibit 11.
[11] See Exhibit 10
[12]
Testimony gauging the distance between R.K. and Tulikangas ranged from 12
inches (Tulikangas testimony) to 24 inches (
[13] Tulikangas testimony.
[14]
Patterson stated that R.K. was directly between Tulikangas and the door, while
[15] Patterson testimony.
[16] Exhibit 11.
[17] Testimony of Ronald Kraft; Exhibit 7, Part IV.
[18] Testimony of Ronald Kraft.
[19]
[20] Exhibit 5.
[21] Exhibit 6.
[22]
[23] Exhibit 7.
[24] Exhibit 8.
[25] Exhibit 9.
[26]
[27] Code, Part 4(B)(5).
[28] These details include the distance between R.K. and Tulikangas, and whether R.K.’s arms were crossed while he blocked Tulikangas’ path to the door.
[29] Code, Part 4(B)(14).
[30] Exhibit 7, p. 10 (final of the unnumbered pages).