Does moving an expelled student to an alternative school when they're readmitted count as double jeopardy?

Official title

Opinion addressing whether penalties arising out of school disciplinary proceedings under Section 59-63-210(A) constitute criminal punishments under the Double Jeopardy Clause.

Requester

Requested by Danielle Fields, Board Chair, Greenwood School District 50.

Plain-English summary

Greenwood School District 50's board chair asked the Attorney General a constitutional question about student discipline. The board wanted to readmit some expelled students but condition readmission on placement in the district's alternative school rather than the student's original school. The worry was double jeopardy: if expulsion is a punishment for a student-conduct violation, does requiring an alternative placement on readmission amount to a second punishment for the same offense, in violation of the Fifth Amendment?

The Attorney General concluded it does not. The Double Jeopardy Clause protects only against multiple criminal punishments for the same offense, in successive proceedings. So the threshold question is whether school disciplinary penalties under § 59-63-210(A) are criminal or civil. Following the framework South Carolina courts adopted from the U.S. Supreme Court's decision in Hudson v. United States, the office first looked at the statute's text and concluded it implies a civil penalty, because the General Assembly gave school boards (administrative bodies) discretionary authority to expel, suspend, or transfer students, and South Carolina courts treat local school boards as administrative agencies.

The office then ran through the seven Hudson factors (used in State v. Price) to check whether the scheme is nonetheless so punitive in purpose or effect as to be criminal. It found the penalties do not impose an affirmative disability like imprisonment, have not historically been treated as criminal punishment (the Fourth Circuit held in Starbuck that double jeopardy does not apply to school disciplinary proceedings, and federal courts have said the Clause does not apply to academic discipline), do not require scienter, and are not excessive in relation to their purpose of maintaining a positive learning environment for all students. The deterrent element and the fact that the underlying conduct might also be a crime were not enough to make the penalties criminal. The office pointed to § 59-19-90(3), which frames student-conduct rules as serving the welfare of all students, and noted that even expelled students may petition for readmission the following year.

Finally, on the alternative-school placement specifically, the AG concluded a school board has discretionary authority under § 59-19-90(9) to transfer and assign students "so as to promote the best interests of education," as the South Carolina Supreme Court recognized in Storm M.H. Placing a readmitted student in the alternative school also fits the Legislature's stated purpose for alternative schools in § 59-63-1300. So neither the expulsion nor the reassignment implicates the Double Jeopardy Clause.

What this means for you

School boards and administrators: Based on this opinion, you can condition a readmitted student's return on placement in an alternative school without raising a double jeopardy problem, because the AG treats these disciplinary measures as civil and views student assignment as within your § 59-19-90(9) discretion.

Parents and students: The opinion concludes that expulsion and a later alternative-school placement are not "criminal punishments," so the constitutional double jeopardy protection does not bar the board from doing both. The right to petition for readmission the following school year remains.

School attorneys: The AG's analysis is a straightforward application of the Hudson/Price civil-versus-criminal test and the Fourth Circuit's Starbuck decision; it treats school discipline as civil and administrative.

Common questions

Is expelling a student and then sending them to an alternative school double jeopardy?
No, according to the AG. School discipline under § 59-63-210(A) is civil, not criminal, so the Double Jeopardy Clause (which applies only to multiple criminal punishments) is not triggered.

Why are school disciplinary penalties considered civil?
The AG concluded the statute implies a civil penalty because the Legislature gave school boards, treated as administrative agencies, discretionary authority to impose discipline, and the Hudson factors show the scheme is not so punitive as to be criminal.

Can a school board require a readmitted student to attend a different school?
Yes. The AG concluded § 59-19-90(9) gives boards discretionary authority to transfer and assign students to promote the best interests of education, which covers placement in an alternative school.

Does it matter that the student's conduct might also be a crime?
No. The AG, following State v. Price, noted that the mere fact the underlying conduct is also criminal does not turn a civil school-discipline sanction into a criminal penalty.

Background and statutory framework

S.C. Code Ann. § 59-63-210(A) lets a district board of trustees expel, suspend, or transfer a pupil for cause or when the pupil's presence is detrimental to the school, and gives each expelled pupil the right to petition for readmission the succeeding school year. The double jeopardy protections come from U.S. Const. Amend. V (applied to the states through the Fourteenth Amendment) and S.C. Const. Art. I, § 12.

The civil-versus-criminal analysis follows State v. Cuccia, 353 S.C. 430, 578 S.E.2d 45 (Ct. App. 2003), which applied Hudson v. United States, 522 U.S. 93 (1997), and the seven-factor test from State v. Price, 333 S.C. 267, 510 S.E.2d 215 (1998). On school discipline specifically, the AG relied on Starbuck v. Williamsburg James City Cnty. Sch. Bd., 28 F.4th 529 (4th Cir. 2022), holding the Double Jeopardy Clause inapplicable to school disciplinary proceedings, and on federal authority that the Clause does not apply to academic discipline. Section 59-19-90(3) frames student-conduct rules as serving the welfare of all students, § 59-19-90(9) grants student-assignment discretion (as construed in Storm M.H. ex rel. McSwain v. Charleston Cnty. Bd. of Trustees, 400 S.C. 478, 735 S.E.2d 492 (2012)), and § 59-63-1300 states the legislative purpose behind alternative schools.

Citations

• S.C. Code Ann. § 59-63-210(A) (board authority to expel, suspend, or transfer; right to petition for readmission)
• S.C. Code Ann. § 59-19-90(3) (student-conduct rules for the welfare of all pupils)
• S.C. Code Ann. § 59-19-90(9) (board discretion to transfer and assign students)
• S.C. Code Ann. § 59-63-1300 (purpose of alternative schools)
• U.S. Const. Amend. V; S.C. Const. Art. I, § 12 (double jeopardy)
• State v. Cuccia, 353 S.C. 430, 578 S.E.2d 45 (Ct. App. 2003)
• Hudson v. United States, 522 U.S. 93 (1997)
• State v. Price, 333 S.C. 267, 510 S.E.2d 215 (1998)
• Starbuck v. Williamsburg James City Cnty. Sch. Bd., 28 F.4th 529 (4th Cir. 2022)
• Storm M.H. ex rel. McSwain v. Charleston Cnty. Bd. of Trustees, 400 S.C. 478, 735 S.E.2d 492 (2012)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-penalties-arising-out-of-school-disciplinary-proceedings-under-section-59-63-210-a-constitute-criminal-punishments-under-the-double-jeopardy-clause/
• Original PDF: https://www.scag.gov/media/f55nhd1t/03509224.pdf

Original opinion text

Alan Wilson
Attorney General

February 15, 2024

Danielle Fields
Board Chair

Greenwood County School District 50 Board of Trustees
P.O. Box 248
Greenwood, SC 29648

Dear Ms. Fields:

We received your letter requesting an Attorney General’s opinion on behalf of Greenwood School
District 50’s (the District’s) Board of Trustees (the Board). You seek an opinion on “whether the
concept of double jeopardy is invoked when a student who was previously expelled from the
District may be readmitted and placed in the District’s alternative school or another alternative
placement rather than the student’s previously assigned school.” By way of background, you
explain:

During its regular meeting in October 2023, the Board took up the issue of double
jeopardy as it may relate to expelled students seeking petition for readmission under

Board Policy JKE - Expulsion of Students,1 with its accompanying administrative
rule. . . . During our discussion, the Board weighed various options of allowing
readmission of an expelled student contingent upon placement in the District’s
alternative program.
As way of example, you state:

[P]ursuant to [section 59-63-210 of the South Carolina Code (2020)], as long as the
nature of the offense for which a student was expelled does not pertain to firearms,
“[e]ach expelled pupil has the right to petition for readmission for the succeeding

school year.” Based upon a plain reading of this statute, the word “readmission”
seems to indicate the legislative intent that the student be allowed to return to the
school that he or she was last expelled from as opposed to being reassigned to an
alternative placement.

1 Board Policy JKE provides: “A student may be expelled for the reasons listed in the [District’s
discipline policy, for the commission of any crime, gross immorality, gross misbehavior or the

violation of any other written rules and regulations established by the [B]oard, the school or the

state board of education. A student may also be expelled when the presence of the student is
deemed to be detrimental to the best interest of the school.”
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Daniel Fields
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February 15, 2024

Further and as a result, the principle of double jeopardy may be implicated by such
a requirement. The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution prohibits anyone from being prosecuted or sentenced twice for
substantially the same offense. The relevant part of the Fifth Amendment states,
“[n]o person shall ... be subject for the same offense to be twice put in jeopardy of
life or limb . . . .” To that end, if a District student is expelled for the remainder of
the year, the expulsion is exacted for the purpose of punishing the student for a
Student Code of Conduct violation in accordance with Board Policy JICDA - Code
of Conduct and its accompanying administrative rule. The issue that arises under
that scenario is whether, upon a student’s petition for readmission after expulsion,
the Board’s decision to allow the student’s readmission contingent upon placement
in the District’s alternative school constitutes a second punishment stemming from
the same transaction or occurrence, which may be seen as violating the student’s
Fifth Amendment rights.
Law/Analysis

Both the Fifth Amendment to the United States Constitution, applicable to the States through the
Fourteenth Amendment, and our State Constitution protect against double jeopardy. U.S. Const.
Amend. V (providing no person shall “be subject for the same offense to be twice put in jeopardy
of life or limb”); S.C. Const. Art. I, § 12 (“No person shall be subject for the same offense to be
twice put in jeopardy of life or liberty . . . .”); State v. Cuccia, 353 S.C. 430, 434, 578 S.E.2d 45,
47 (Ct. App. 2003) (noting the Double Jeopardy Clause of the Fifth Amendment is applicable to
South Carolina through the Fourteenth Amendment to the United States Constitution). In State v.
Cuccia, the South Carolina Court of Appeals recognized “the Double Jeopardy Clause does not

prohibit the imposition of all additional sanctions that could, ‘in common parlance,’ be described
as punishment.” 353 S.C. at 435, 578 S.E.2d at 48 (quoting Hudson v. United States, 522 U.S. 93,
98-99 (1997). In Hudson v. United States, the United States Supreme Court reaffirmed that the
“[Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments

for the same offense, and then only when such occurs in successive proceedings.” 522 U.S. at 99
(citations omitted). “Nevertheless, the [Double Jeopardy] Clause may prevent the government
from subjecting a defendant to both a criminal punishment and a civil sanction.” Cuccia, 353 S.C.
at 435, 578 S.E.2d at 48.
In determining whether a penalty implicates the Double Jeopardy Clause, a court must first
determine whether it is criminal or civil in nature. Initially, a court should look to the language of

the statute to determine the nature of the punishment. Id. at 435, 578 S.E.2d at 48 (“Whether a
particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A

court must first ask whether the legislature, ‘in establishing the penalizing mechanism, indicated
either expressly or impliedly a preference for one label or the other.’” (quoting Hudson, 522 U.S.
at 99)); id. at 436, 578 S.E.2d at 48 (“To determine whether a penalty is criminal or civil, a court
must look to the face of the statute and then determine if the statutory scheme is so punitive in

purpose or effect as to transform what was intended as a civil sanction into a criminal penalty.”).

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However, “Even in those cases where the legislature ‘has indicated an intention to establish a civil
penalty, we have inquired further whether the statutory scheme was so punitive either in purpose
or effect,’ as to ‘ transfer[m] what was clearly intended as a civil remedy into a criminal penalty.”
Id. at 435-36, 578 S.E.2d at 48 (quoting Hudson, 522 U.S. at 99) (alteration in original). In making
this determination, our Supreme Court has adopted the factors enumerated by the United States
Supreme Court in Hudson:

(1) whether the sanction involves an affirmative disability or restraint, (2) whether
it has historically been regarded as a punishment, (3) whether it comes into play
only on a finding of scienter, (4) whether its operation will promote the traditional

aims of punishment-retribution and deterrence, (5) whether the behavior to which
it applies is already a crime, (6) whether an alternative purpose to which it may
rationally be connected is assignable for it, and (7) whether it appears excessive in
relation to the alternative purpose assigned.

State v. Price, 333 S.C. 267, 270-72 n.5, 510 S.E.2d 215, 217-18 n.5 (1998).

We believe a court would likely determine the penalties resulting from school disciplinary
proceedings do not constitute criminal penalties under the Double Jeopardy Clause. Section 5963-2 10(A) of the South Carolina Code (2020) grants a district board of trustees the authority to
expel, suspend, or transfer any student for cause or when a student’s presence is detrimental to the
best interest of the school. Looking first to the statutory language, while the statute does not
expressly provide the penalties are civil or criminal in nature, we believe a court would find the
language implies a civil penalty.
Any district board of trustees may authorize or order the expulsion, suspension, or

transfer of any pupil for the commission of any crime, gross immorality, gross
misbehavior, persistent disobedience, or for violation of written rules and
promulgated regulations established by the district board, county board, or the State

Board of Education, or when the presence of the pupil is detrimental to the best
interest of the school. Each expelled pupil has the right to petition for readmission
for the succeeding school year. Expulsion or suspension must be construed to
prohibit a pupil from entering the school or school grounds, except for a
prearranged conference with an administrator, attending any day or night school
functions, or riding a school bus. The provisions of this section do not preclude
enrollment and attendance in any adult or night school.

S.C. Code Ann. § 59-63-21 0(A) (emphasis added). Of significance, the General Assembly granted
district boards of trustees discretionary authority to order or authorize the penalties listed in section
59-63-2 10(A). See Hudson, 522 U.S. at 103 (“That [the] authority [to issue debarment orders] was
conferred upon administrative agencies is prima facie evidence that Congress intended to provide
for a civil sanction.”); see also Price, 333 S.C. at 272, 510 S.E.2d at 218 (finding it significant that
the authority to suspend a driver’s license was vested with the South Carolina Department of Motor

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Vehicles when the statute was silent as to whether the sanctions were civil or criminal in nature).
South Carolina appellate courts have treated local school boards as administrative agencies. See
e.g. Lee Cnty. Sch. Dist. Bd. of Trustees v. MLP Charter Sch. Acad. Plan. Comm., 371 S.C. 561,
567-68 n.l, 641 S.E.2d 24, 28 n.l (2007) (finding the requirements for administrative agencies
when presenting their findings apply to “all administrative agencies, including local school
boards”); Brown v. James, 389 S.C. 41, 50, 697 S.E.2d 604, 609 (Ct. App. 2010) (determining the

doctrine of exhaustion of administrative remedies under the Administrative Procedures Act2
applied to a local school board in an action for violation of the Employment and Dismissal Act3).
Accordingly, we believe a court would likely find the language of section 59-63 -2 10(A) implies

the penalties are civil in nature.
Turning to whether the statutory scheme is nevertheless “so punitive in purpose or effect as to
transform what was intended as a civil sanction into a criminal penalty,” we believe a court would

likely find the disciplinary penalties under section 59-63-21 0(A) are civil penalties.

Price, 333
S.C. at 271, 510 S.E.2d at 218. First, the penalties under this section do not involve an affirmative

disability or restraint. See Hudson, 522 U.S. at 1 04 (finding a prohibition from further participating
in the banking industry was “certainly nothing approaching the ‘infamous punishment’ of
imprisonment” (quoting Flemming v. Nestor, 363 U.S. 603, 617 (I960))). Second, penalties
resulting from school disciplinary proceedings have not traditionally been regarded as criminal
punishment. Recently, in Starbuck v. Williamsburg James City County School Board, the United
States Court of Appeals for the Fourth Circuit affirmed the United States District Court for the
Eastern District of Virginia’s holding that the Fifth Amendment’s Double Jeopardy Clause did not
apply to school disciplinary proceedings. 28 F.4th 529, 537 (4th Cir. 2022). In Starbuck, a student
brought a 42 U.S.C. § 1983 action against a local school board following his suspension from a
public high school. Id. at 531-32. In holding the Double Jeopardy Clause was inapplicable to the
student’s case, the District Court relied on Hudson, 522 U.S. at 98-99 and Doe v. University of

South Carolina, No. 3:18-161, 2018 WL 1215045, at 8 n.10 (D.S.C. Feb. 12, 2018). Starbuck v.
Williamsburg James City Cnty. Sch. Bd., No. 4: 1 8CV63, 2020 WL 7330182, at 9 (E.D. Va. Nov.

20, 2020), affd in part, rev'd in part, 28 F.4th 529 (4th Cir. 2022). In Doe v. University of South
Carolina, a University of South Carolina graduate student was suspended from the university,
jeopardizing his visa status. 2018 WL 1215045, at * 1-2. The District Court noted “it is well settled

that the Double Jeopardy Clause does not apply to academic disciplinary proceedings.” Id. at *6
n.10.

Third, section 59-63-2 10(A) is silent as to whether it requires a finding of scienter.

Fourth,
penalties resulting from school disciplinary proceedings do promote the aim of deterrence;
however, no civil remedy is solely remedial. Hudson, 522 U.S. at 102 (“If a sanction must be
‘solely’ remedial (f.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause,

then no civil penalties are beyond the scope of the Clause.”). Fifth, assuming for the purpose of
our analysis the conduct precipitating a school disciplinary penalty is already a crime, this is

2 S.C. Code Ann. §§ 1-23-310 to -400 (2005 & Supp. 2023).
3 S.C. Code Ann. §§ 59-25-410 to -530 (2004).

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insufficient to transform a civil penalty into a criminal penalty.

Price, 333 S.C. at 273-74, 510

S.E.2d at 219 (“[T]he mere fact that the conduct for which the sanction is imposed is also criminal

is insufficient to render the sanction criminally punitive.”).
Lastly, although there is a deterrent element to school disciplinary penalties, section 59-19-90(3)

of the South Carolina Code (2020), indicates that the General Assembly intended codes of conduct
promulgated by school district boards of trustees to be for the benefit of all students. The board
of trustees shall:
Promulgate rules prescribing scholastic standards of achievement and standards of
conduct and behavior that must be met by all pupils as a condition to the right of
such pupils to attend the public schools of such district. The rules shall take into
account the necessity of proper conduct on the part of all pupils and the necessity
for scholastic progress in order that the -welfare ofthe greatest possible number of

pupils shall be promoted notwithstanding that such rules may result in the
ineligibility ofpupils who fail to observe the required standards, and require the
suspension or permanent dismissal ofsuch pupils', . . .
§ 59-19-90(3) (emphasis added).
policies.

This goal is also reflected in the language of the District’s

Board Policy JK - Student Discipline states in pertinent part: “The school is a

community.

It is responsible for educating those children who attend, and therefore, it must

establish and enforce guidelines and procedures that provide for reasonable order and an

atmosphere where learning can take place.”

In addition, Board Policy JIC - Student Conduct

states: “The [B]oard directs the administration to establish rules and regulations necessary to create
and preserve conditions essential to the orderly operation of the schools.” Further, we believe a

court would determine the penalties are not excessive in relation to the goal of promoting a positive
learning environment for all students.

Even under the most severe form of punishment—

expulsion—the student has the right to petition for readmission the following school year.
Taken together, we believe a court would find that under an analysis of the Hudson factors, section

5 9-63 -2 10(A) is not so punitive in either purpose or effect to transform it into a criminal penalty.

See Price, 333 S.C. at 271, 510 S.E.2d at 218 (“Only the clearest proof will suffice to override
legislative intent and transform what has been denominated as a civil remedy into a criminal
penalty.”); Hudson, 522 U.S. at 101 (“[N]° one factor should be considered controlling as they

‘may often point in differing directions.’” (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144,
169(1963))).

As to requiring a formerly expelled student to attend the District’s alternative school or a school
other than the school the student previously attended, we believe a court would likely determine
section 59-19-90(9) of the South Carolina Code (2020), grants the school board of trustees the
discretionary authority to assign and transfer students as it deems appropriate. S.C. Code Ann. §
59-19-90(9) (“The board of trustees shall . . . Transfer any pupil from one school to another so as
to promote the best interests of education, and determine the school within its district in which any

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pupil shall enroll; . . .”); see Storm M.H. ex rel, McSwain v. Charleston Cnty. Bd. of Trustees, 400
S.C. 478, 489, 735 S.E.2d 492, 498 (2012) (“In construing the language of [section 59-19-90(9) &

(10)(d)], we agree . . . that the General Assembly conferred discretionary authority on a board of
trustees ... to determine which school in its district a student may attend.”).

Moreover, with

respect to a formerly expelled student’s placement in the District’s alternative school, we believe
this would align with the General Assembly’s intent in establishing alternative schools. S.C. Code
Ann. § 59-63-1300 (2020) (“The General Assembly finds that a child who docs not complete his

education is greatly limited in obtaining employment, achieving his full potential, and becoming a
productive member of society. It is, therefore, the intent of this article to encourage district school
boards throughout the State to establish alternative school programs. These programs shall be

designed to provide appropriate services to students who for behavioral or academic reasons are
not benefiting from the regular school program or may be interfering with the learning of others.”).
Conclusion

Accordingly, we believe a court would likely determine penalties arising out of school disciplinary

proceedings under section 59-63-2 10(A) do not constitute criminal punishments under the Double
Jeopardy Clause. Further, the General Assembly vested the Board with the discretion to transfer
and assign students as deemed appropriate “so as to promote the best interests of education.” S.C.

Code Ann. § 59-19-90. Therefore, we believe a court would find that neither a student’s expulsion
nor the Board's assignment of a previously expelled student to a placement other than the student’s

previously assigned school implicates the Double Jeopardy Clause.

Sincerely,

Elizabeth McCann
Assistant Attorney General

REVIEWED AND APPROVED BY:

z

Robert D. Cook
Solicitor General