BUSCH EX REL. v. OMAHA PUBLIC SCH. DIST.

• Decision Date: 30 March 2001
• Docket Number: No. S-98-1374.,S-98-1374.
• Citation: 623 N.W.2d 672,261 Neb. 484
• Parties: Porcha BUSCH, a minor, by and through her mother and next friend, Gwen KNAVE, Appellant, v. OMAHA PUBLIC SCHOOL DISTRICT et al., Appellees.
• Court: Nebraska Supreme Court

623 N.W.2d 672

261 Neb. 484

Porcha BUSCH, a minor, by and through her mother and next friend, Gwen KNAVE, Appellant, v. OMAHA PUBLIC SCHOOL DISTRICT et al., Appellees.

No. S-98-1374.

Supreme Court of Nebraska.

March 30, 2001.

Daniel J. Welch, of Welch Law Firm, P.C., Omaha, for appellant.

David M. Pedersen and Maya C. Samms, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

GERRARD, Justice.

NATURE OF CASE

Porcha Busch was expelled from school by the Omaha Public School District (OPS) after a fight with another student during which Busch accidentally struck and injured an assistant principal who was attempting to restrain Busch and break up the fight. Busch argues that OPS exceeded its statutory authority by adopting the rule pursuant to which Busch was expelled. The district court disagreed and upheld the expulsion. Because we determine that OPS acted within its statutory authority, we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts of this case are essentially undisputed. At the time of the incident in question, Busch was in the seventh grade at the McMillan Magnet Center in Omaha, Nebraska. On September 30, 1998, Busch became involved in a physical altercation with another student with whom Busch had a history of disagreements. Four staff members, including the assistant principal, intervened to stop the fight. Despite being restrained, Busch continued to fling her arms in an attempt to break away and reach the other student.

During her struggling, Busch's hand struck and injured the assistant principal on the left side of her nose and upper lip. Both Busch and the assistant principal testified that although Busch was very angry at the other student, Busch did not specifically intend to strike the assistant principal.

Busch was immediately suspended, and she and her mother were notified that the McMillan Magnet Center administration was recommending that she be expelled from classes for the remainder of the first semester of the 1998-99 school year. Upon receiving notification of the recommendation of expulsion, Busch and her mother requested a due process hearing before a hearing officer. After holding the hearing requested by Busch, the hearing officer upheld the recommendation of expulsion for the remainder of the semester. Busch and her mother appealed the hearing officer's decision to a committee of school board members, and an ad hoc committee of the OPS board of education, on October 23, 1998, upheld the expulsion for the remainder of the first semester of the 1998-99 school year.

Busch, by and through her mother, filed a petition in error in the district court, arguing, inter alia, that OPS exceeded its statutory authority in adopting the rule pursuant to which Busch was expelled. That rule, OPS Student Code of Conduct rule 1(b), provides:

Injuring a school employee who is attempting to break up or prevent a physical confrontation

Students are forbidden by the use of violence or force to cause personal injury to a school employee who is attempting to break up or prevent a physical confrontation. Such use of violence or force constitutes a substantial interference with school purposes.

First Offense: Expulsion. Remainder of the semester. Law Enforcement will be contacted.

Busch argued that this rule exceeded the authority granted to OPS by Neb.Rev. Stat. § 79-267(3) (Reissue 1996), as interpreted by this court's decision in Spencer v. Omaha Pub. Sch. Dist., 252 Neb. 750, 566 N.W.2d 757 (1997). Busch also argued that the rule was not "clear and definite" as required by Neb.Rev.Stat. § 79-262(1) (Reissue 1996).

The district court rejected Busch's arguments, determining that rule 1(b) was sufficiently clear and definite and was based on the authority of § 79-267(1), not § 79-267(3). Consequently, the district court entered a judgment affirming Busch's expulsion. Busch, by and through her mother, appealed. We granted the parties' petitions to bypass the Nebraska Court of Appeals.

ASSIGNMENTS OF ERROR

Busch assigns, consolidated and restated, that the district court erred in failing to reverse the decision of OPS because (1) rule 1(b) was outside the statutory authority of § 79-267 and (2) rule 1(b) is not clear and definite as required by § 79-262(1).

STANDARD OF REVIEW

Appeals from the district court under the Student Discipline Act, Neb. Rev.Stat. § 79-254 et seq. (Reissue 1996 & Cum.Supp.2000), are governed by the Administrative Procedure Act. § 79-292. See, also, Spencer v. Omaha Pub. Sch. Dist., supra; Kolesnick v. Omaha Pub. Sch. Dist., 251 Neb. 575, 558 N.W.2d 807 (1997). A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Gottsch Feeding Corp. v. State, 261 Neb. 19, 621 N.W.2d 109 (2001); Affiliated Foods Co-op. v. State, 259 Neb. 549, 611 N.W.2d 105 (2000). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.

Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Tilt Up Concrete v. Star City/Federal, 261 Neb. 64, 621 N.W.2d 502 (2001).

ANALYSIS

Statutory Authority

We have long acknowledged that school boards are creatures of statute, and their powers are limited. Spencer v. Omaha Pub. Sch. Dist., supra. Any action taken by a school board must be through either an express or an implied power conferred by legislative grant. Id.

Thus, it is important to recognize from the outset that the Legislature sets the broad policy for maintenance of discipline in the schools in this state. The local school boards in turn are charged with the responsibility for promulgating rules that maintain order and foster a safe and appropriate learning environment for students and staff within the parameters of the policies set forth by the Legislature. Absent any suggestion that a particular school rule violates some statutory or substantive constitutional guarantee, the courts generally defer to that legislative and local judgment, and refrain from attempting to distinguish between the rules that are important to the preservation of order in the schools and rules that are not. See New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). See, also, Kolesnick v. Omaha Pub. Sch. Dist., supra.

The Legislature, within this framework, passed the Student Discipline Act, § 79-254 et seq. The stated purpose of the Student Discipline Act is "to [en]sure the protection of all elementary and secondary school students' constitutional right to due process and fundamental fairness within the context of an orderly and effective educational process." (Emphasis supplied.) § 79-255. As part of the Student Discipline Act, the Legislature set forth the types of student conduct that may be, in the judgment of the local school boards, grounds for long-term suspension, expulsion, or mandatory reassignment of offending students. Section 79-267 provides, in relevant part:

The following student conduct shall constitute grounds for long-term suspension, expulsion, or mandatory re-assignment, subject to the procedural provisions of the Student Discipline Act ...:

(1) Use of violence, force, coercion, threat, intimidation, or similar conduct in a manner that constitutes a substantial interference with school purposes;

. . . .

(3) Causing or attempting to cause personal injury to a school employee, to a school volunteer, or to any student. Personal injury caused by accident, self-defense, or other action undertaken on the reasonable belief that it was necessary to protect some other person shall not constitute a violation of this subdivision.

OPS subsequently passed rule 1(b), which was modeled after the language contained in § 79-267(1).

Busch first argues that OPS acted outside the scope of authority granted to school districts by § 79-267(3) when it passed rule 1(b) and applied the rule in the instant case. Busch's argument is based on this court's application of § 79-267(3) in Spencer v. Omaha Pub. Sch. Dist., 252 Neb. 750, 566 N.W.2d 757 (1997). In Spencer, OPS had adopted a rule that provided for the expulsion of a student for causing injury to another student and provided that it would not be a defense to the charge of assault that the student did not intend to hurt anyone. This court held that an injury caused "by accident," within the meaning of § 79-267(3), is "one which is caused accidentally, unintentionally, or unexpectedly." Spencer v. Omaha Pub. Sch. Dist., 252 Neb. at 755, 566 N.W.2d at 760. This court, limiting its analysis to § 79-267(3), noted that the rule adopted by OPS did not permit the defense that the act caused a result that was accidental and, thus, concluded that the school board exceeded its statutory authority in adopting the rule. See id.

Busch maintains that the rule at issue in the instant case is like that in Spencer in that the rule does not permit a defense that the injury was caused accidentally, and thus exceeds the statutory authority of § 79-267(3). OPS argues that rule 1(b) is authorized by § 79-267(1) and that the school district is not relying on § 79-267(3) as the enabling section of the statute. OPS asserts that the use of violence or force upon a school employee who is attempting to break up or prevent a physical confrontation, in and of itself, constitutes a substantial interference with school purposes, and when personal injury to the school employee occurs (whether intentional or...