Dolinger v. Driver, S98A0168.

• Decision Date: 23 February 1998
• Docket Number: No. S98A0168.,S98A0168.
• Citation: 498 S.E.2d 252,269 Ga. 141
• Parties: DOLINGER et al. v. DRIVER et al.
• Court: Georgia Supreme Court

498 S.E.2d 252

269 Ga. 141

DOLINGER et al. v. DRIVER et al.

No. S98A0168.

Supreme Court of Georgia.

February 23, 1998.

Judith Anne O'Brien, Bradley Erik Heard, Sutherland, Asbill & Brennan, LLP, Atlanta, for Stephen D. Dolinger et al.

Sonya Bailey, Albert A. Mitchell & Associates, Atlanta, for Katina A. Driver, b/n/f, et al.

THOMPSON, Justice.

The issue for decision in this case is whether high school students who lack the required course credits to graduate can resort to a court of equity and obtain an injunction that would allow the students to march in a graduation ceremony. The answer is "no."

Two and a half weeks prior to their graduation from high school, a number of Fulton County students were notified that discrepancies had been found in the computer records which tracked their course work, grades and credits. Following an investigation, school officials informed the students that they did not qualify for a high school diploma and would not be allowed to participate in the graduation ceremony.

Less than 48 hours before the scheduled graduation ceremony, five students brought suit against the school board and school officials, seeking an order requiring the school board to let them participate in the commencement exercises. A six-hour hearing was held on the eve of the scheduled graduation. At the conclusion of the hearing, the superior court determined that the students had no constitutional right to participate in a graduation ceremony. Nevertheless, even though the students lacked the required course credits to graduate, the court entered a temporary restraining order enabling four of the students to participate in the graduation ceremony.

Defendants brought this appeal. In the meantime, the four students participated in the graduation ceremony.

1. A temporary restraining order is not directly appealable. OCGA § 5-6-35(a)(9). Although the injunction in this case is denominated as a TRO, there is no magic in nomenclature. A document is to be construed by its substance or function, rather than by its name. Martin v. Williams, 263 Ga. 707, 708(1), 438 S.E.2d 353 (1994); Frost v. Frost, 235 Ga. 672, 673(1), 221 S.E.2d 567 (1975). Thus, where a TRO is entered after a lengthy adversary hearing and effectively grants the plaintiff all of the relief he or she sought, it is directly appealable. Commonwealth of Virginia v. Tenneco, 538 F.2d 1026, 1029-30 (4th Cir.1976). See also Coalition for Basic Human Needs v. King, 654 F.2d 838 (1st Cir.1981) (TRO is appealable if in reality it operates as preliminary injunction).

The TRO in this case was entered after a six-hour evidentiary hearing at which both sides were present. Moreover, it did not merely preserve the status quo pending further proceedings; it directed action which gave plaintiffs all of the relief they sought. It follows that the TRO was directly appealable and that we have appellate jurisdiction. See Geld-Halden Industries v. Parr, 237 Ga. 773, 774, 229 S.E.2d 620 (1976).

2. This appeal is not moot simply because the students participated in the graduation ceremony. The issues in this appeal are of public importance and they are capable of repetition, yet evade judicial review. See Payne v. Chatman, 267 Ga. 873, 876, 485 S.E.2d 723 (1997); Chastain v. Baker, 255 Ga. 432, 339 S.E.2d 241 (1986). As a practical matter, cases of this type invariably will be brought at the eleventh hour when immediate appellate review will be impossible.

3. The students did not assert that they were being deprived of a diploma they had earned. They only sought the right to march with their classmates in the graduation ceremony. However, students have no right to participate in a graduation ceremony. Williams v. Austin Independent School Dist., 796 F.Supp. 251, 255 (W.D.Tex.1992) (although students have property interest in high school diploma, there is no accompanying right to receive the diploma at a graduation...