City of Akron v. Lane

• Citation: 65 Ohio App.2d 90,416 N.E.2d 642,19 O.O.3d 56
• Parties: , 19 O.O.3d 56 CITY OF AKRON, Appellee, v. LANE, Appellant.
• Decision Date: 11 July 1979
• Court: United States Court of Appeals (Ohio)

Page 90

65 Ohio App.2d 90

416 N.E.2d 642, 19 O.O.3d 56

CITY OF AKRON, Appellee, v. LANE, Appellant.

Court of Appeals of Ohio, Ninth District, Summit County.

July 11, 1979.

Syllabus by the Court

1. The exceptions from compulsory school attendance are listed in R.C. 3321.03(A), (B) and (C), and mere equivalency between home instruction and public education is not an exception listed in the statute.

2. The allowance of a home instruction exception is discretionary with the district superintendent of schools, subject to state direction, R.C. 3321.04(A) (2), and subject to appeal to the Juvenile Court, R.C. 3331.08.

3. A parent cannot defend a prosecution based upon the compulsory education laws by showing that his child is being taught at home in a manner equivalent to, or substantially in compliance with, state minimum educational standards where such parent sought, but failed to obtain, the approval of the district superintendent of schools for home instruction, pursuant to R.C. 3321.04(A)(2), and took no appeal to the Juvenile Court, pursuant to R.C. 3331.08.

4. The term "school," in the context of R.C. 3321.03 and 3321.04, refers to a school chartered by the state, pursuant to R.C. 3301.16, and the term "special education program," in the context of R.C. 3321.03 and 3321.04, refers to a special education program operated pursuant to State Board of Education standards and authorization.

Peter D. Oldham, City Prosecutor, and Edward J. Riegler, Akron, for appellee.

Gerald J. Glinsek and Terry D. Zimmerman, Akron, for appellant.

MAHONEY, Presiding Judge.

Defendant, Richard T. Lane, appeals his conviction, after a bench trial, of violation of the compulsory education laws (R.C. 3321.03, 3321.04 and 3321.38(A)). We affirm.

Defendant has a daughter, Stacey Lane, who is of compulsory school age and whose hearing is impaired. Prior to the 1978-1979 school year, Stacey attended the Akron Public Schools. Because of her impaired hearing, Stacey was initially placed in a special education class at Mason Elementary School where the "oral method" of teaching is used. Later, Stacey was placed in the special education class at Voris Elementary School where the "total communication" method is used. Absent her need for special education, Stacey would attend King Elementary School.

Defendant was dissatisfied with Stacey's educational progress in the special education classes and took the position that federal law required that Stacey be placed in regular classes with the aid if an interpreter. The Akron Board of Education disagreed with defendant's interpretation of the law. Defendant filed a suit in federal district court, but it was dismissed because of available administrative remedies. In March of 1978, defendant filed a complaint against the Akron Board of Education with the Department of Health, Education, and Welfare (HEW). No findings on the complaint have been issued at this time. Defendant's motion to continue the instant prosecution pending action by HEW was overruled.

Defendant did not send Stacey to Voris Elementary School for the 1978-1979 school year. Instead, he hired a tutor, alleged to be a certified instructor of the deaf, to provide instruction for Stacey at home. An attempt was made to secure the approval of Conrad C. Ott, Akron Superintendent of Schools, for the home instruction program, but this approval was not obtained. No appeal was taken to the Juvenile Court, as is permitted by R.C. 3331.08.

Defendant was notified, pursuant to R.C. 3321.19, that he was in violation of the compulsory education laws (Chapter 3321). A complaint was thereafter filed against defendant, stating in part that:

" * * * (O)n or about the 14th day of November, 1978, and continuing thereafter, * * * Richard T. Lane did knowingly and willfully fail to cause his daughter, Stacey Lane to attend a school which conforms to the minimum standards prescribed by the State Board of Education for the full time the school attended is in session, or otherwise to cause her to be instructed in accordance with law * * *."

The trial court indicated at several points during the trial that the quality of either the education offered at Voris Elementary School except as it pertains to minimum state standards, or defendant's home instruction program was immaterial to the proceeding. The trial court found defendant guilty and imposed a fine of $20 and costs. There is no issue of free exercise of religion in this case.

Assignments of Error

"1. The trial court committed reversible error in overruling defendant-appellant's motion for a continuance pending resolution of * * * (his) complaint with the Department of Health, Education and Welfare against the Akron Board of Education.

"2. The trial court committed reversible error in overruling appellant's motion for discovery.

"3. It is error, in a criminal prosecution under the State Compulsory Attendance Laws for a court to deny a defendant the right to present evidence which would establish that he did not willfully violate those laws.

"4. The verdict of guilty was not sustained by the evidence where the court failed to find that the educational program provided by the defendant-appellant did not meet the state minimum standards."

Discussion

Assignment of Error No. 1

The ruling on a motion for continuance is committed to the sound discretion of the trial court. See, e. g., State v. Simmons (Summit Co. Ct. of Appeals No. 7811, January 14, 1976), unreported. We see no abuse of discretion here. Uncertainty exists regarding the form and effect of the federal agency's finding and the time when judicial review would be accomplished.

Assignment of Error No. 2

The trial court overruled, in part, defendant's motion for discovery of certain items of information which, defendant argued, would allow him to raise the issue of the quality of the education provided for his daughter at the Voris Elementary School and show that she was not provided an equal educational opportunity. Defendant cites several cases from other jurisdictions which, based on the pertinent statutes, indicate that a showing of equivalency between public education and home instruction is a good defense to an action based upon violation of compulsory education laws. See State v. LaBarge (1976), 134 Vt. 276, 357 A.2d 121; People v. Turner (1950), 277 App.Div. 317, 98 N.Y.S.2d 886; Cleary v. Lash (In re Lash) (1977), 92 Misc.2d 642, 401 N.Y.S.2d 124. The exceptions from compulsory school attendance are listed in R.C. 3321.03(A), (B) and (C). Mere equivalency between home instruction and public education is not an exception listed in the statute. The allowance of a home instruction exception is discretionary with the district superintendent of schools, subject to state direction, R.C. 3321.04(A)(2), and subject to appeal to the Juvenile Court, R.C. 3331.08. Whether defendant's home instruction program is equivalent to the education provided by the Akron Board of Education was, therefore, immaterial to the instant prosecution. See Commonwealth v. Renfrew (1955), 332 Mass. 492, 126 N.E.2d 109; State v. Hoyt (1929), 84 N.H. 38, 146 A. 170; but see People v. Levisen (1950), 404 Ill. 574, 90 N.E.2d 213.

We do not understand defendant to say that the program for the hearing impaired at Voris Elementary School does not meet minimum state standards applicable to such a program.

Assignment of Error No. 3

Defendant states that he instituted the home instruction program because of his concern with Stacey's educational development and...