Johnson v . Collins, et a l . CV-02-531-JM 12/04/02 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Johnson, et a l .

v. Civil N o . 02-531-JM Opinion N o .

Rodney C . Collins, et a l .

ORDER

Before the Court for consideration is the Plaintiffs’ motion

for a preliminary injunction to order the School Board of the

Newmarket School District (“School Board”) to readmit Andrew

Johnson as a student at the Newmarket Jr.-Sr. High School (the

“School”). The Plaintiffs, Richard and Maria Johnson (the

“Johnsons”), are the parents of Andrew Johnson (“Andrew”).1 The

Johnsons allege that the School Board expelled Andrew on June 4 ,

2002 without due process for allegedly writing a bomb threat on a

school chalkboard on March 7 , 2002. The Johnsons further allege

that the School Board imposed unconstitutional conditions on

Andrew’s readmission to school in late August 2002, and then

1 Named as Defendants in this action are Rodney C . Collins, individually and in his official capacity as Chief of Police of the Town of Newmarket (“Chief Collins”), the School Board, Denis Joy, in his official capacity as Superintendent of Schools for the Newmarket School District (the “Superintendent”), and the Town of Newmarket. summarily expelled Andrew without due process on October 4 , 2002

after he violated a school computer use policy.

After considering the testimony and other evidence presented

at the hearing, and the relevant authorities, I find that the

evidence supports the Johnsons’ contention that Andrew was

expelled on October 4 , 2002 without due process in violation of

the Fourteenth Amendment to the United States Constitution, and

that he is likely to suffer ongoing irreparable harm absent

injunctive relief. Accordingly, the Plaintiffs’ motion for

interim injunctive relief is granted.

STANDARD OF REVIEW

“The purpose of a preliminary injunction is to preserve the

status quo, freezing an existing situation so as to permit the

trial court, upon full adjudication of the case’s merits, more

effectively to remedy discerned wrongs.” CMM Cable Rep., Inc. v .

Ocean Coast Prop., Inc.,

1 8 , 620 (1st Cir. 1995) (citing

Chalk v . U.S. Dist. C t . Cent. Dist. of Cal.,

0 1 , 704

(9th Cir. 1988); Am. Hosp. Ass’n v . Harris,

(7th Cir. 1980)). Thus, if the court ultimately finds for the

movant, a preliminary injunction provides the court with a method

for preventing or minimizing any current or future wrongs caused

2 by the defendant. CMM Cable Rep.,

.

A district court may grant a plaintiff’s request for a

preliminary injunction if the plaintiff can satisfy a four-part

test: (1) the plaintiff will suffer irreparable harm if the

injunction is not granted; (2) the plaintiff is likely to succeed

on the merits; (3) the injury to the plaintiff outweighs any harm

which granting the injunction would inflict on the defendant; and

(4) the public interest will not be adversely affected by the

granting of the injunction. See Ross-Simons of Warwick, Inc. v .

Baccarat, Inc.,

2 , 15 (1st Cir. 1996); Narragansett

Indian Tribe v . Guilbert,

, 5 (1st Cir. 1991); Planned

Parenthood League of Mass. v . Belotti,

(1st

Cir. 1981). A party seeking injunctive relief must independently

satisfy each of the preliminary injunction factors. Auburn News

C o . v . Providence Journal Co.,

(1st Cir. 1981);

Mass. Coalition of Citizens with Disabilities v . Civil Def.

Agency & Off. of Emergency Preparedness of Com. of Mass.,

1 , 74 (1st Cir. 1981). In the First Circuit, the key issue

in determining whether injunctive relief should be granted is

whether the plaintiff can demonstrate a likelihood of success on

the merits. See Philip Morris, Inc. v . Harshbarger,

(1st Cir. 1998); Ross-Simons of Warwick,

2 , 16

(1st Cir. 1996); Weaver v . Henderson,

1 , 12 (1st Cir.

1993). With this standard of review in mind, the relevant facts

are discussed below.

BACKGROUND

I. School and Town Officials Respond to Bomb Threat

On the afternoon of March 7 , 2002, a bomb threat was written

on a chalkboard in a classroom at the School. The note stated:

“This ones for real. There is a bomb that will explode between 9

am and 1 pm. Have a nice life.” The bomb threat was discovered

on the morning of March 8 , 2002. The police were notified, the

building was evacuated, and the building was searched. The

threat led to the disruption of the entire school day. The high

school students were dismissed for the day. The junior high

school students were sent to other schools.

The police did not find a bomb. However, the investigation

revealed that the classroom where the bomb threat was written had

been vandalized. Computer cables were cut, a utility panel on a

wall was ripped out, and the face cover to an emergency light

panel outside the room was removed. The chalkboard where the

bomb threat was written, a piece of chalk, and an eraser were

4 seized from the School as evidence of the crime.

The police investigation of the incident eventually revealed

that Andrew and two other students were seen wandering in the

school hallways during the approximate time that the bomb threat

was written on March 7th, and had reportedly left the building at

4:30 p.m. On March 1 4 , 2002, an employee in the Superintendent’s

office received an anonymous telephone call implicating Andrew in

the bomb threat.

In an affidavit dated March 1 4 , 2002 submitted to the

Rockingham County Superior Court, Chief Collins stated that he

had been informed by a Newmarket police detective that the State

Laboratory had confirmed that identifiable fingerprints were

found on the chalkboard. P l . Ex. 1 9 . The detective also

indicated that the State Laboratory determined that the prints

that were found were likely to have been by the person who wrote

the bomb threat.

The court issued a search warrant

requiring Andrew to submit to fingerprinting by the police. The

Newmarket police executed the warrant after interviewing Andrew

on March 1 5 , 2002.

The State Laboratory’s subsequent comparison of the

fingerprint impressions that were obtained from the evidence and

5 Andrew’s fingerprints revealed no matches. P l . Ex. 1 7 . The

Newmarket Police did not submit fingerprint impressions from

either of the two other students implicated in the incident for

comparison with fingerprint impressions obtained from the

evidence. Nor was any handwriting analysis ever performed to

compare the handwriting in the bomb threat with handwriting

exemplars of Andrew and two other students implicated in the

incident.

On April 2 8 , 2002, Chief Collins obtained an arrest warrant

for Andrew “[f]or the crime of false reports as to explosives and

criminal mischief (RSA 158:38).” Andrew was arrested and taken

into police custody, while he was at school, on April 2 9 , 2002.

The School suspended Andrew that same day.

II. June 4 , 2002 Expulsion

The Johnsons received written notice of the School Board’s

charge against Andrew of writing a bomb threat by letter dated

May 2 0 , 2002. Def. Ex. B . The Superintendent indicated in the

notice that the Johnsons had the right to have hearing before the

School Board deliberated “on whether or not to expel Andrew for

the rest of the school year . . . .”

The School Board held

a hearing regarding the incident on June 4 , 2002. Def. Ex. C .

6 By letter dated June 6, 2002, the Superintendent sent a letter to

the Johnsons informing them of the School Board’s decision to

expel Andrew. See P l . Ex. 1 . The Superintendent wrote in

pertinent part:

This is to formally notify you that at a duly posted hearing held on Tuesday, June 4 , 2002, the Newmarket School Board voted to expel your son, Andrew, for the remainder of the school year. You may apply to the School Board this summer for permission to re-enroll in school beginning August of 2002.

The School Board’s decision was that Andrew did commit an act of “gross misconduct” for which the Board may expel a student under RSA 193:13 I I . The gross misconduct being, the act of writing a bomb threat on a chalkboard at Newmarket Jr.-Sr. High School on Thursday, March 7 , 2002, which was discovered on Friday, March 8 , 2002.

Testimony given by the Newmarket Police Department and the Newmarket Jr.-Sr. High School Principal were the factors upon which the decision was based.

P l . Ex. 1 .

III. Readmission to the Newmarket Jr.-Sr. High School

A. Proceedings in the Family Court

After Andrew was arrested, he was criminally charged with

filing a false report of an explosive device and with criminal

mischief. By that time, the Johnsons were aware of the results

of the fingerprint examination performed by the State Laboratory.

The Johnsons urged the School and the Superintendent to readmit

7 Andrew. Maria Johnson testified that the Superintendent told her

that if Andrew was acquitted at trial he would be “morally

obligated to make things right.”

On July 2 2 , 2002, an adjudicatory hearing was held at

Brentwood Family Court. After hearing the evidence submitted,

the court found that the State did not prove its case against

Andrew for writing a bomb threat beyond a reasonable doubt. In

its written decision, the court found that “the State failed to

prove an element of the offense –- anxiety[,] etc. to any

person.” Def. Ex. A . While the court granted Andrew a directed

verdict on the bomb threat charge, it never determined whether

the allegation against him was true. Moreover, it is not

possible to determine based on the record whether or not the

court would have found Andrew responsible for the bomb threat had

the court been forced to determine the merits of the allegation.

The court did find with respect to the matters which were not the

basis of the expulsion that “the State did prove beyond a

reasonable doubt that the juvenile committed the offense of

criminal mischief (02-J-105) as charged.”

B. Johnsons’ Attempt to Have the Expulsion Nullified

After the proceedings in the family court concluded, the

8 Johnsons attempted to convince the School Board to nullify

Andrew’s expulsion. On August 1 5 , 2002, the School Board

formally voted against expunging the expulsion and notified the

Johnsons of that decision. Def. Ex. D. The School Board further

decided to require Andrew “to undergo a complete psychological

examination by an independent evaluator to determine, among other

things, whether the student is a potential danger . . . and is

emotionally prepared to return to school.”

By letter dated August 2 2 , 2002, the Superintendent sent the

Johnsons a confirmatory letter indicating that the School voted

unanimously not to reconsider Andrew’s expulsion and had agreed

to delay consideration of the Johnsons’ request to have Andrew

return to school. Def. Ex. E . The August 22nd letter also

discussed the School Board’s decision to require Andrew to

undergo a psychological examination prior to being permitted to

return to school.

C. School Board Decides to Readmit Andrew

The Johnsons agreed to have Andrew undergo a psychological

examination before the School Board would consider whether to

readmit him. After the examination, Andrew was found to be a

low-risk for any future misconduct.

9 On August 2 7 , 2002, after the new school year had begun, the

School Board held a special emergency meeting to consider whether

to permit Andrew to return to school. Def. Ex. F. The School

Board voted to allow Andrew to return to school pending the

acceptance by Andrew and the Johnsons of stipulations drafted by

the School Board. Among those stipulations was a provision that

“[i]f the student commits any offense for which suspension from

school is the punishment, reinstatement of the expulsion will

occur.” P l . Ex. 5 . Richard Johnson testified that he and Andrew

signed the agreement because they were desperate to get Andrew

back into school. Maria Johnson refused to sign the agreement

because she found the stipulations offensive. A letter agreement

containing the stipulations was signed by Richard Johnson, Andrew

and the Superintendent on August 2 8 , 2002.

Andrew was

readmitted on August 2 9 , 2002.

IV. October 4 , 2002 Suspension And Expulsion

A. Violation of Computer Use Policy

The undisputed evidence showed that Andrew attended classes

without incident until October 4 , 2002. On that date, Andrew was

suspended for violating a computer use policy at the Seacoast

School of Technology where Andrew was taking courses in

10 collaboration with the Newmarket Jr.-Sr. High School. Andrew

admitted to seeing a demonstration of a prohibited file on

another student’s computer and then requesting that the other

student provide him a copy. Andrew then saved the file to the

network. Def. Ex. G. Both Andrew and the student who provided

him with the file were suspended from school for one full day.

Because Andrew took courses at the Seacoast School of Technology

in collaboration with the Newmarket Jr.-Sr. High School, Andrew

was simultaneously suspended from his courses at the Newmarket

Jr.-Sr. High School for the day. P l . Ex. 8 .

B. Summary Expulsion

By letter dated October 4 , 2002, the Superintendent informed

the Johnsons that:

In accordance with the agreement signed on August 2 8 , 2002, because Andrew has been suspended from school, the Newmarket School Board has reinstated Andrew’s expulsion from school effective this date.

Andrew was suspended from school for violating the computer use policy at the Seacoast School of Technology, thus he has violated item number three of the agreement.

P l . Ex. 6. Andrew was not afforded a hearing before the

expulsion took effect. By separate letter dated October 4 , 2002,

the Superintendent informed the Johnsons that the School Board’s

11 August 1 5 , 2002 decision not to reconsider Andrew’s expulsion was

final and that the School Board would not participate in any

further discussion related to reconsidering or reversing the

expulsion. P l . Ex. 7 .

DISCUSSION

I. Likelihood of Success on the Merits

A. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, deprive individuals of “any

rights, privileges or immunities secured by the Constitution and

laws” of the United States. See

; Parratt v .

Taylor,

2 7 , 535 (1981), overruled on other grounds by

Daniels v . Williams,

(1986); Rodriguez-Cirilo v .

Garcia,

0 , 52 (1st Cir. 1997). In order to be held

liable for a violation under § 1983, a defendant’s conduct must

have been a cause in fact of the alleged deprivation. See Monell

v . Dep’t of Soc. Serv.,

5 8 , 692 (1978); Soto v . Flores,

(1st Cir. 1997).

The premise of the Johnson’s § 1983 claim is that the

defendants, acting under color of state law, wrongfully expelled

Andrew and thereby denied him a liberty interest in a free public

12 education. Although the Johnsons have appealed the School

Board’s decision with respect to the June 4th expulsion to the

State Board of Education, they need not exhaust their

administrative remedies before bringing an action in federal

court under § 1983. See e.g., Parker v . Grand Hyatt Hotel,

9 , 86 (D.D.C. 2000); Cook v . Edwards,

(D.N.H. 1972).

B . Due Process Claims

States are not obligated under the United States

Constitution to maintain a public school system. Goss v . Lopez,

(1975); San Antonio Indep. School Dist. v .

Rodriguez,

, 35 (1973). But when a state elects to

provide free education to all youths, as in New Hampshire, the

state is “constrained to recognize a student’s legitimate

entitlement to a public education as a property interest which is

protected by the Due Process Clause and which may not be taken

away for misconduct without adherence to the minimum procedures

required by that Clause.” Goss,

. Thus, while

the states possess the authority to prescribe and enforce

standards of conduct in schools, that authority must be exercised

consistent with constitutional safeguards.

13 In Goss, the Supreme Court established standards that school

boards must follow to meet the requirements of the Due Process

Clause in connection with short-term suspensions of ten days or

less. The Court stated, “[a]t the very minimum, . . . , students

facing suspension and the consequent interference with a

protected property interest must be given some kind of notice and

afforded some kind of hearing.” Goss,

. The

Court further clarified that students must “be given oral or

written notice of the charges against him and, if he denies them,

an explanation of the evidence the authorities have and an

opportunity to present his side of the story.”

. The

reason for these prerequisites is that the Due Process Clause

“requires at least these rudimentary precautions against unfair

or mistaken findings of misconduct and arbitrary exclusion from

school.”

The Supreme Court expressly stated in Goss that it only

addressed the due process requirements for short suspensions that

do not exceed 10 days.

. The Court stated that

“[l]onger suspensions or expulsions for the remainder of the

school term, or permanently, may require more formal procedures.”

The Supreme Court has never addressed the specific due

14 process requirements of long-term suspensions and expulsions.

The First Circuit recognized in Gorman v . Univ. of Rhode

Island,

, 13 (1st Cir. 1988), that the federal courts

have uniformly held in student discipline cases that “fair

process requires notice and an opportunity to be heard before the

expulsion or significant suspension of a student from a public

school.” Courts have not, however, required that a school

disciplinary hearing resemble a traditional common law trial in

order to be deemed fair.

at 1 4 . “Rather, on judicial review

the question presented is whether, in the particular case, the

individual has had an opportunity to answer, explain, and defend,

and not whether the hearing mirrored a common law criminal

trial.”

Determining the extent of procedural protections

that are due requires the court to weigh the student’s interest

in completing his education against the state’s interest in

preserving its limited resources for its primary function of

providing education. See

citing Matthews v . Eldridge,

(1976).

In Carey on Behalf of Carey v . Maine School Administrative

District # 1 7 ,

(D. Maine 1990), the district

court enumerated seven minimum requirements that must be observed

15 in student disciplinary hearings in order to assure the requisite

balance between the substantial interests of the student and the

state:

(1) The student must be advised of the charges against him;

(2) the student must be informed of the nature of the evidence against him;

(3) the student must be given an opportunity to be heard in his own defense;

(4) the student must not be punished except on the basis of substantial evidence;

(5) the student must be permitted the assistance of a lawyer in major disciplinary hearings;

(6) the student must be permitted to confront and to cross-examine the witnesses against him; and

(7) the student has the right to an impartial tribunal.

Carey,

, quoting Keene v . Rodgers,

1 7 , 221 (D. M e . 1970). I am persuaded that these seven

requirements strike the appropriate balance between the competing

interests of the parties in this case.

For the reasons that I address herein, I find that the

Johnsons are likely to succeed on the merits of their due process

claim for the following reasons: (1) the School Board’s notice of

its intended action in response to the bomb threat charge was

16 inadequate; (2) the June 4 , 2002 hearing on the bomb threat

charge provided the Johnsons with no meaningful opportunity to

cross-examine the witnesses against Andrew; and (3) the School

Board summarily expelled Andrew on October 4 , 2002 without

affording him a hearing.

1. Lack of Adequate Notice

From the evidence presented at the injunction hearing, I

find that the Johnsons are likely to show that the School Board

did not provide adequate notice that the School Board sought to

permanently expel Andrew from the School on June 4 , 2002. In the

notice of charges sent by the Superintendent, the Johnsons were

informed that the School Board would deliberate whether to expel

Andrew for the remainder of the school year. See Def. Ex. B .

The Superintendent also informed the Johnsons that Andrew had

been expelled for the remainder of the school year in the School

Board’s written decision. See P l . Ex. 1 . The testimony at the

injunction hearing showed that less than three weeks of school

remained in the school year when the School Board made its

decision.

In response to the instant motion for a preliminary

injunction, the School Board contends that the June 4 , 2002

17 expulsion was actually a permanent denial of Andrew’s right to

attend school.2 I find that the notice that Andrew was expelled

“for the remainder of the school year” could reasonably have

affected the Johnsons’ decision whether to be represented by

counsel at that hearing, and the Johnsons’ decision whether to

immediately appeal the School Board’s decision.

2. Denial of Right to Cross-Examine Witnesses

I find that the hearing on the June 4 , 2002 expulsion was

constitutionally deficient because the Johnsons were not

2 The relevant New Hampshire statute, RSA 193:13, does not define the term “expulsion.” The Board of Education’s Administrative Rules with respect expulsions are contradictory. N.H. Code Admin. R. Ed. 317.02(a) defines the term “expulsion” to mean: “the permanent denial of a pupil’s attendance at school for any of the reasons listed in RSA 193:13, II and III. But the disciplinary procedures categorize expulsion as a “level of discipline” that shall be “for a period determined in writing by the board . . . .” N.H. Code Admin. R. Ed. 317.04(a)(3); see also, N.H. Code Admin. R. Ed. 317.04(i) (“The decision shall state whether the student is expelled and the length of the expulsion.”), and N.H. Code Admin. R. Ed. 317.04(j) (“A statement of the time period for which the student is expelled and any action the student may take to be restored by the board). The regulations clearly provide that a school board must indicate the time period of any expulsion. Regardless of the School Board’s intent, the School Board did, in fact, notify the Johnsons that Andrew was suspended for a period of time, namely, for the rest of the school year. For the purposes of this Order, I find that the School Board’s notice of its contemplated action, and its letter of June 6, 2002 informing the Johnsons of its decision, did not provide adequate notice that the School Board sought to permanently deny Andrew the right to attend school.

18 permitted to cross-examine the witnesses against Andrew at the

hearing on the initial expulsion. Although the right to examine

witnesses need not have been in compliance with the rules of

evidence, and unlimited cross-examination is not an essential

requirement of due process in school disciplinary cases,3 the

School Board’s hearing deprived the Johnsons of any meaningful

opportunity to defend against the charges against Andrew.

The School Board stated in its written decision that the

factors upon which the decision was based was the testimony given

by the Newmarket Police Department and the Newmarket Jr-Sr. High

School Principal. The evidence at the injunction hearing showed

that the testimony that the school board relied upon denied the

Johnsons any opportunity to cross-examine the witnesses against

them.

The Superintendent testified at the injunction hearing that

Captain Cyr, a Newmarket Police Officer, testified at the hearing

on behalf of the Newmarket Police Department. Captain Cyr

informed the School Board what other students, implicated in the

crime, told the police during interviews. This was hearsay

testimony that deprived the School Board of any opportunity to

3 Gorman,

6 .

19 consider the credibility of the student’s testimony for

themselves. It is also obvious that the School Board was far

more likely to credit these statements when relayed from a police

officer as opposed to if the students were required to give live

testimony. Not only was the police officer’s testimony merely

hearsay, however, from the evidence at the injunction hearing it

became apparent that Captain Cyr was not even present at the

interviews of the other students.4 That made Captain Cyr’s

testimony double hearsay. He was only able to testify as to what

he learned from other officers about what the witnesses said and

he did not himself have an opportunity to weigh the credibility

of the witnesses while they gave their statements.

Even more significantly, the students who gave the

statements to the police were themselves implicated in the

alleged crimes and were given immunity in exchange for their

testimony against Andrew. In particular, the other students most

likely to have been the author of the bomb threat had an obvious

motive to divert attention away from themselves and onto Andrew.

4 The Court has reviewed the transcript of the adjudicatory proceedings in the Brentwood Family Court. Captain Cyr, the officer who testified before the School Board on June 4 , 2002, is never mentioned as having been present at the police interviews of the other two students implicated in the incident.

20 In addition to Captain Cyr’s double hearsay testimony,

Deborah Brooks, the School Principal, was not even present during

the hearing. She was permitted to submit tape-recorded comments,

which gave the Johnsons absolutely no opportunity for cross-

examination.

In the instant case, the deprivation of a meaningful right

to cross-examination witnesses is plainly apparent based on the

evidence presented at the injunction hearing. Accordingly, I

find that the Johnsons are likely to succeed on the merits of

their claim that they were deprived of due process because they

were not permitted a fair opportunity to challenge the validity

and weight of the evidence against Andrew. This deprivation

likely violated the Due Process Clause of the Fourteenth

Amendment and a specific Administrative Rule of the New Hampshire

Board of Education which provides that “[d]uring the hearing, the

pupil, parent, guardian, or counsel representing the pupil, shall

have the right to examine any and all witnesses.” N.H. Code

Admin. R. Ed. 317.04(d)(3)(g)(5).

3. Expulsion Without a Hearing

The School Board’s decision to summarily expel Andrew on

October 4 , 2002 likely violated his constitutional right to due

21 process in that he was not afforded any hearing prior to the

expulsion. The summary expulsion was also contrary to the N.H.

Code Admin. R. Ed. 317.04(d)(3)(a), which provides that a formal

hearing shall be held before any expulsion.

The School Board argues that the letter agreement containing

stipulations for Andrew’s readmission to School provided adequate

justification for expelling Andrew without a hearing. The terms

of the stipulation provide, however, that “[i]f the student

commits any offense for which suspension from school is the

punishment, reinstatement of the expulsion will occur.” P l . Ex.

5.

I find the School Board’s argument unpersuasive for three

reasons. First, I have already determined that the Johnsons are

likely to succeed on the merits of their claim that the June 4 ,

2002 hearing was constitutionally deficient. Second, the

stipulation is ineffectual as a basis for reinstating the June 4 ,

2002 expulsion in October 2002 because by the express terms of

the School Board’s written decision the June 4th expulsion was

for the remainder of the previous school year, which ended in

June 2002. The School Board could not reinstate an expulsion

that already expired. Third, even if the stipulation were valid,

22 it contains no express waiver of Andrew’s right under the United

States Constitution, and the New Hampshire Board of Education’s

Administrative Regulations (N.H. Code Admin. R. Ed.

317.04(d)(3)(a)) to have a hearing before the expulsion would

take effect.

For the purposes of the Johnsons’ motion for a preliminary

injunction, I find that the Johnsons have demonstrated a

significant likelihood of success on the merits of their claim

that Andrew was deprived of a liberty and property interest in

his right to attend a free public school without due process of

law.5

5 The Johnsons further allege that Andrew was deprived of an impartial and independent decision-maker because the School Board was intimidated by Chief Collins. Evidence was presented at the injunction hearing suggesting that the Chief Collins was angered because the School Board considered significantly cutting back or entirely eliminating funding for a student resource officer in January 2002. P l . Ex. 1 6 . At the time, Richard Johnson was the Chair of the School Board. An unidentified individual warned the Superintendent to drive carefully in Newmarket because the police “were watching” and looking for an opportunity to retaliate.

The student resource officer was retained in the budget. Because I find that the Johnsons are likely to establish that Andrew’s due process rights were violated for the reasons previously stated, I do not consider the merits of the bias allegation here. I also note that since the motion for preliminary injunction did not involve Defendant Collins his evidence had neither been heard nor considered.

23 II. Irreparable Harm

In order to be entitled to a preliminary injunction, the

Johnsons must demonstrate that Andrew is likely to suffer

irreparable harm absent relief. Irreparable harm is a

substantial injury that is not accurately measurable or

adequately compensable by money damages. Ross-Simons of Warwick,

; Auburn News Co., supra,

;

Sierra Club v . Larson,

2 0 , 422 (D. Mass. 1991).

“To establish irreparable harm there must be an actual, viable,

presently existing threat of serious harm.” Sierra Club,

(citing Massachusetts Coalition, supra,

).

The value of a free public education is beyond dispute. The

United States Supreme Court stated in Brown v . Board of

Education,

(1954), that “education is perhaps the

most important function of state and local governments . . . .

It is required in the performance of our most basic public

responsibilities . . . . it is the very foundation of good

citizenship.”

. I find that the Johnsons have made an

adequate showing that Andrew is likely to suffer irreparable harm

absent injunctive relief if he continues to be deprived of an

24 education during the pendency of this lawsuit.

The evidence shows that Andrew was not given credit for

completion of the 10th grade following his expulsion on June 4 ,

2002. While Andrew was conditionally readmitted on August 2 9 ,

2002, he was summarily expelled on October 4 , 2002, and has not

participated in any classes since through the date of the

preliminary injunction hearing, held on December 2 , 2002. The

standard track for a trial on the merits in this Court is one

year, which means that it is reasonable to expect that a final

decision in this matter would not be reached until months after

the beginning of the next school year. With each passing school

year, the amount of time left for Andrew to complete a free

public education before attaining 21 years of age diminishes. By

statute, the right to a free public education in New Hampshire

expires after a student reaches 21 years of age. See N.H. RSA

193:1-c, I (the right of access to public school programs does

not extend to any pupil who has attained the age of 2 1 ) . The

loss of Andrew’s right to a free public education, and its likely

impact on his future opportunities, is not accurately measurable

or adequately compensable by money damages.

25 III. Balance of the Hardships

I must next consider the balance of the hardships to the

parties in granting an injunction. The Court is mindful that the

School Board was grappling with a difficult issue in determining

how to respond to the bomb threat, and that the School Board

claims that it acted in good faith to enforce school rules. I

find, however, that the balance of the hardships weighs in favor

of the Plaintiffs. The relative cost to Andrew in terms of his

additional loss of time in school outweighs the Defendants’

interest in continuing Andrew’s expulsion during the pendency of

this litigation, particularly in light of the Plaintiffs’ showing

of likelihood of success on the merits.

IV. Affect on the Public Interest

The School Board argues that the granting of an injunction

will impair the school’s ability to enforce its rules through

fair disciplinary action. The School Board also argues that it

relied in good faith on the investigation of the Newmarket Police

Department in reaching its conclusion that Andrew was responsible

for the bomb threat. In contrast, the Johnsons contend that the

public interest weighs in favor of requiring the Newmarket School

District to afford students due process prior to depriving them

26 of a liberty and property interest in a free public education.

I find that the public interest will not be adversely

affected by the granting of an injunction. In making my

determination I find it significant that the School Board made no

showing that Andrew poses a danger to the students or staff at

the School.

CONCLUSION

For the reasons set forth above, the Plaintiffs’ request for

a preliminary injunction seeking an order requiring the School

Board of the Newmarket School District to readmit Andrew to the

Newmarket Jr.-Sr. High School is granted.

It is hereby ordered that pending a decision on the merits

of this action, or further order of this Court, Andrew Johnson

shall be readmitted to the Newmarket Jr.-Sr. High School

commencing on Monday, December 9, 2002. The Defendants, and

their officers, agents, servants, employees, and attorneys, and

any person acting in concert with them who receive actual notice

of this Order, are enjoined from directly or indirectly

preventing Andrew Johnson from attending classes at the Newmarket

Jr.-Sr. High School based either in whole, or in part, on the

School Board’s June 4 , 2002 expulsion decision.

27 The School Board and the School are further ordered to make

such accommodation as is necessary to enable Andrew to complete

the 10th grade, and to get caught up in his course work for this

semester.

James R. Muirhead United States Magistrate Judge Date: December 4 , 2002

cc: Paul McEachern, Esq. Gordon B . Graham, Esq.

28