D.K. v. Dist. Sch. Bd. Indian River County, 4D08-105.
| Decision Date | 21 May 2008 |
| Docket Number | No. 4D08-105.,4D08-105. |
| Parties | D.K., a Child, by his Father, Thomas A. KENNEDY, Appellants, v. DISTRICT SCHOOL BOARD INDIAN RIVER COUNTY, Florida, Appellee. |
| Court | Florida District Court of Appeals |
Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for appellants.
Usher Larry Brown and Erin J. O'Leary of Brown, Garganese, Weiss & D'Agresta, P.A., Orlando, for appellee.
ON MOTION TO DISMISS
Appellee, District School Board of Indian River County ("School Board"), seeks dismissal of D.K.'s appeal on the grounds that a suspension order is not permitted to be reviewed under the Florida Administrative Procedure Act (ch. 120, Fla.Stat.). We dismiss D.K.'s appeal of his suspension because this Court has no jurisdiction to review a direct appeal of a School Board's decision that results in suspension.
In October 2007, the principal suspended D.K. for 10 days under the school's "zero weapon tolerance policy" pursuant to Section 1006.13(1)(a), Florida Statutes (2006), and recommended expulsion. The School Board sustained the suspension, but did not expel D.K. D.K. seeks judicial review with this Court of his suspension under the APA.
Under section 1006.07(1)(a), Florida Statutes (2006), hearings that result in expulsion fall within the APA and are entitled to judicial review in the appropriate district court. See Mitchell v. Leon County Sch. Bd., 591 So.2d 1032 (Fla. 1st DCA 1991); Walter v. Sch. Bd. of Indian River County, 518 So.2d 1331 (Fla. 4th DCA 1987). However, suspension hearings are specifically exempted from the protections of the APA. See Fla. Stat. 1006.07(1)(a) and 120.81(1). Therefore, this Court has no jurisdiction to review D.K.s suspension.1
D.K. argues that he should be entitled to judicial review because he was subject to an expulsion proceeding. D.K. believes that he was subject to an expulsion proceeding because he potentially faced the punishment of expulsion. However, if we read section 1006.07 to require judicial review where expulsion is a possibility; the legislatures intent to limit the review of suspensions would be circumvented. Consequently, we construe section 1006.07 to permit judicial review of proceedings that result in expulsion and not those where expulsion is a possibility.2
Therefore, we grant the School Board's motion to dismiss and dismiss this appeal.
Dismissed.
1. This holding does not bar student who has a constitutional right violated by a suspension from bringing action in the appropriate court. See Scholastic Sys., Inc. v. LeLoup, 307 So.2d 166 (Fla. 1974); Ferrara v. Hendry County Sch. Bd., 362 So.2d 371 (Fla. 2d DCA 1978). In this case,...
To continue reading
Request your trial
-
S.J. v. Thomas, CASE NO. 1D16–3635
...We do not find this case persuasive. The court relied on a case from the Fourth District, D.K. ex rel. Kennedy v. District School Board of Indian River County, 981 So.2d 667 (Fla. 4th DCA 2008), which held that a student who was suspended for 10 days is not entitled to the protections of th......
-
L.M. v. State, 3D15-893
...established by the local School Board, to appeal disciplinary actions, including suspension. See D.K. ex rel. Kennedy v. Dist. Sch. Bd. Indian River Cty., 981 So.2d 667 (Fla. 4th DCA 2008). Much as an adult defendant or civil litigant must obey a judicial order while pursuing rehearing, a s......
-
G.F.C. v. Pace, Case No. 5D16-1923.
...Procedure Act ("APA") ] and are entitled to judicial review in the appropriate district court." D.K. ex rel. Kennedy v. Dist. Sch. Bd. Indian River Cty. , 981 So.2d 667, 667 (Fla. 4th DCA 2008) (citing § 1006.07(1)(a), Fla. Stat. (2006) ). However, hearings that result in suspension do not ......