Not-Pot Leaf Gets6th-Grader in Big Trouble

Boy was suspended for 364 days after being caught with a leaf that tested negative for weed

[Credit: Rotational | WikiMedia Commons]

SOURCE: www.Roanoke.com
AUTHOR: Dan Casey

At first blush it sounds like an open-and-shut school disciplinary matter in a zero-tolerance age:

Some schoolchildren claim another student bragged about having marijuana. They inform school administrators. An assistant principal finds a leaf and a lighter in the boy's knapsack. The student is suspended for a year. A sheriff's deputy files marijuana possession charges in juvenile court.

All of the above and more happened last September to the 11-year-old son of Bedford County residents Bruce and Linda Bays. He was a sixth-grader in the gifted-and-talented program at Bedford Middle School.

There was only one problem: Months after the fact, the couple learned the substance wasn't marijuana. A prosecutor dropped the juvenile court charge because the leaf had field-tested negative three times.

Their son remains out of school - he's due to return Monday on strict probation. But in the meantime, the events of the past six months have wreaked havoc on the formerly happy-go-lucky boy's psyche. His parents say he's withdrawn socially, and is now under the care of a pediatric psychiatrist for panic attacks and depression.

The couple - both are schoolteachers - have filed a federal lawsuit against Bedford County Schools and the Bedford County Sheriff's Office. It refers to their son only by the initials R.M.B.

It alleges Bedford Middle School Assistant Principal Brian Wilson and school operations chief Frederick "Mac" Duis violated his due process rights under the U.S. Constitution.

"Essentially they kicked him out of school for something they couldn't prove he did," said Roanoke attorney Melvin Williams, the Bays' lawyer.

It also accuses the Bedford County Sheriff's Office of malicious prosecution, because Deputy M.M. Calohan, a school resource officer, filed marijuana possession charges against the boy despite field tests that indicated otherwise.

"The field test came back not inconclusive, but negative," Williams said. "Yet she went to a magistrate and swore he possessed marijuana at school."

Filed Feb. 3 in U.S. District Court in Lynchburg, the lawsuit doesn't ask for specific damages. "We intend to see what a jury would say about that," Williams said.

Bedford Sheriff Mike Brown did not return my phone call Thursday (a woman in his office said he was off work last week). Wilson and Duis each declined to comment, and instead referred me to the school system's lawyer, Salem attorney Jim Guynn. He's also representing the sheriff.

Guynn has moved to dismiss the suit for a couple of reasons that we'll get into below. One argument, he told me, is that under the school board's anti-drug policies it may not matter whether the leaf was marijuana or not.

Even if the lawsuit is as meritless as he suggests, the case presents a cautionary tale about the current zero-tolerance drug climate in Virginia schools.

‘We have never seen the leaf'

The events leading up the boy's 364-day suspension began Sept. 22. The Bays said they're still unclear about how or why school officials targeted their son - because they've heard three different stories about that.

"We know they relied on ‘tips' that after the fact turn out to be less than reliable," Williams said.

One was that R.M.B. was showing off the leaf on the school bus (which also transports Liberty High students) that day. The second was that it happened in a school bathroom. The third is that it occurred inside his homeroom class.

Word apparently made it through the school grapevine to Wilson, who took the Bays' son out of gym class that day, along with his knapsack, which had been in an unsecured gym locker. They went to Wilson's office.

There, Linda Bays said, Wilson asked their son "if he had anything he shouldn't have. He said, ‘No.' "

Wilson then asked the boy to empty his knapsack. As their son did, the assistant principal personally unzipped a small pouch on the pack's exterior, and found a crumpled leaf and a lighter. He summoned a school resource officer, Bedford County Sheriff's Deputy M.M. Calohan

Next, Wilson called Linda Bays at work. She's a teacher at Stewartsville Elementary School.

"He told me [her son] had been seen in the bathroom with a marijuana leaf and lighter and that I needed to come to [Bedford Middle School] quickly," Linda said. She called her husband (a retired schoolteacher in both Bedford and Pittsylvania counties) and they met in Wilson's office.

"He had us sit down and he proceeded to tell us [our son] had been seen in the classroom with a lighter and a leaf," Linda said. Wilson added that their son told "several students" that "we had marijuana growing in our back yard and that his dad knew about it and didn't care," Linda said.

"It's farfetched," Bruce said. "Anybody who knows me knows that's not true."

The assistant principal also told the couple that their son had told Wilson a high-schooler on the bus had given him the leaf. (The couple said their son has told them repeatedly he has no idea how the leaf got in his backpack, that he didn't know it was there, and that he never showed it off to anyone.)

"I asked, ‘Can I see the leaf?' and the deputy said, ‘No, it's already in evidence,' " Linda told me. "We have never seen the leaf. He's been out of school for six months."

The boy was immediately suspended for 10 days pending an administrative hearing. That happened before Duis on Sept. 29 at the Bedford Science and Technology Center.

Wilson was there but the deputy was not, the Bays said. In the meantime they'd hired Bedford attorney Emily Sitzler to represent their son for that hearing and his later one in juvenile court. They paid her $1,500. (She didn't return my phone call Thursday.)

Bruce Bays said: "During the hearing I asked Wilson, ‘What about the field test on the marijuana leaf?' "

The assistant principal hemmed and hawed "and finally he got around to it and said ‘I'm not qualified to interpret the results of the field test,' " Bruce Bays said.

The couple said Duis ultimately rejected Wilson's recommendation for expulsion, but instead suspended their son for 364 days. The reason Duis cited in a letter he sent later was "possession of marijuana."

The juvenile court hearing happened late in November. When the Bays got there, Sitzler informed them that the commonwealth was going to ask for a continuance because they had neglected to send the leaf off to a state lab for testing.

Linda Bays told Sitzler they wouldn't agree to a continuance. Sitzler went back to the prosecutor, "and she came back and said they were going to drop" the charge. That's when the Bays learned the leaf had field-tested negative three times.

The lawyer "said the assistant commonwealth's attorney told her they were going to have problems with this case anyway," Linda Bays told me.

After that, "I immediately sent a letter to Dr. Duis requesting a new hearing," Linda Bays told me. His response: "The court system and the school system were two different entities."

Schooled at home

Duis' suspension letter also made an allowance for R.M.B to attend Bedford County's alternative education program. Basically, that's a school full of students who are in trouble for all sorts of infractions.

When Linda Bays looked into that, she discovered her son would be searched before and after school every day. Besides that, he'd be going to school with the problem students from every other school. And she didn't want that.

Williams compared it to when a person with no criminal background is sent to prison. They end up getting educated in all kinds of nefarious conduct, the lawyer said.

Instead, the Bays worked out a deal with the school system. They would not appeal the suspension to the Bedford County School Board if their son was allowed to complete the alternative school's online educational program at home.

It's called Edgenuity. However, that program is strictly timed and if their son could not keep up with it, he would have to attend the alternative school in person, Linda Bays said.

With that hanging over his head, their son was unable to concentrate on the online program and he fell behind. So the Bays worked out another arrangement allowing them to home-school their son. But that has meant he missed out on band practices, performances and the social aspect of school.

The school system also required the boy be evaluated for substance abuse problems. So the Bays took him to his longtime pediatrician in Lynchburg, who referred them to a pediatric psychiatrist.

They said the psychiatrist told them he didn't believe their son had a substance abuse problem. But by then, the boy had other problems. After the disciplinary hearing, "he just broke down and said his life was over. He would never be able to get into college; he would never be able to get a job," Linda Bays said.

Now their son is skittish about going out in public, suffers from panic attacks and is depressed. The psychiatrist is treating him for that.

In a letter to the school system, Linda Bays said, the doctor has recommended the best thing for their son would be to go back to school. The school system has agreed to allow him to resume attending another school beginning Monday.

But their son will remain on strict probation until next September, under the terms of the original suspension letter. A minor infraction could get him kicked out again.

Lookalike drugs prohibited

I spoke about this case Thursday with the school board's and the sheriff's attorney, Jim Guynn. He said he's filed motions to dismiss the malicious prosecution claim against the sheriff's deputy because it's in the wrong court.

"Malicious prosecution is a state claim," Guynn told me. "If you want to make a malicious prosecution claim you need to be in state court." But beyond that, he argued, the deputy's filing of the juvenile court charge against R.M.B was not malicious. That's because she visually identified the leaf as marijuana, Guynn said.

"The young man was telling people on the bus that he had marijuana that was given to him by someone from the high school," Guynn told me. The attorney added the leaf was not dried, as marijuana typically is, but that "it was a little sprig" that looked to Guynn exactly like a photo of a marijuana leaf he found on the Internet.

And under the school system's anti-drug policy it may not matter whether the leaf was actually marijuana or a similar-looking leaf, such as from a Japanese maple tree.

That's because the policy treats "lookalike" and "imitation" drugs the same as the real thing. Here's what it says:

"The unlawful manufacture, distribution, dispensation, possession, use or being under the influence of alcohol, anabolic steroids, or any narcotic drug, hallucinogenic drug, amphetamine, barbiturate, marijuana or other controlled substance ... [or] imitation controlled substances or drug paraphernalia while on school property, while going to and from school, or while engaged in or attending any school-sponsored or school approved activity or event, is prohibited, and will result in an automatic recommendation of expulsion."

Guynn called that "a pretty standard rule across the commonwealth."

"It's the same punishment and exactly the same result" whether the leaf was marijuana or not, he said. For that reason, the Bays' due-process claim should be tossed out, too, Guynn said.

Williams countered: "If the school argues now that they were justified in suspending him for possession of lookalike marijuana, that's disingenuous because they've never argued that prior to the suit being filed."

Guynn responded: "I understand what he's saying. I disagree with that."

A possible prank?

In our interview Wednesday in Williams' office, I asked the Bays if they thought it was possible their son had showed the leaf to other students and joked about having marijuana.

Back when I was in the sixth grade, I did something similar. I scratched the raised letters BAYER off an aspirin and told another student it was LSD. I think my parents ended up getting a phone call from the school. When they asked me about it later, I told them it was a joke. That was true.

There were no consequences because this happened in 1969, long before an anti-drug fervor had gripped this nation to such an extent that school drug policies covered schoolboy pranks.

The Bays are adamant that's not what happened in this case, however. They said their son has no idea how the leaf or lighter got in his knapsack, and that he wasn't joking around.

But there indeed have been consequences. The Bays are out money for lawyers and doctors, and they're out the time they've taken to homeschool their child. Meanwhile, his psyche is very fragile now compared to its state before Wilson found the leaf in his knapsack.

Linda Bays said that based on scuttlebutt she's heard since his suspension, she believes one or two students who dislike her son put the leaf in his knapsack, probably on the bus, and then informed school officials about it.

That's left a situation in which, Bruce Bays said, "any kid can tell on another kid and set that kid up. And a principal or assistant principal could potentially push a kid out of school."

Linda Bays added: "Why would you want an 11-year-old gifted-and-talented student out of school for 364 days?" That's a good question. It seems out of proportion to the offense.

Thursday, U.S. District Court Judge Norman Moon ordered the lawsuit be referred to mediation with U.S. Magistrate Robert Ballou. That hasn't yet been scheduled.

Stay tuned.