Pubdate: Sun, 15 Mar 2015
Source: Roanoke Times (VA)
Copyright: 2015 Roanoke Times
Contact:  http://www.roanoke.com/
Details: http://www.mapinc.org/media/368
Author: Dan Casey

Now Under a Psychiatrist's Care

NOT-POT LEAF GETS 6TH-GRADER IN BIG TROUBLE

An 11-year-old boy at Bedford Middle School was suspended for 364 
days after being caught with a substance that tested negative for marijuana.

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parents say he's withdrawn socially, and is now under the care of a 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 
attendBedford 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.
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MAP posted-by: Jay Bergstrom