Gutierrez v. School Dist. R-1

• Decision Date: 12 October 1978
• Docket Number: R-1,No. 78-584,O,78-584
• Citation: 585 P.2d 935,41 Colo.App. 411
• Parties: Artie and Carlos GUTIERREZ, minors, by their next friends and parents, Mr. Arthur Gutierrez and Mrs. Alma Gutierrez, Plaintiffs-Appellees, v. SCHOOL DISTRICTtero County, Mrs. Joy Mitchell, Mr. Ernie Mascarenas, Mrs. Lela Schauer, Mr. Herbert Schwien and Mr. Jon Kolomitz, in their official capacities as members of the Board of Education of School Districttero County, Defendants-Appellants. . III
• Court: Colorado Court of Appeals

Page 935

585 P.2d 935

41 Colo.App. 411

Artie and Carlos GUTIERREZ, minors, by their next friends and parents, Mr. Arthur Gutierrez and Mrs. Alma Gutierrez, Plaintiffs-Appellees, v. SCHOOL DISTRICT R-1, Otero County, Mrs. Joy Mitchell, Mr Ernie Mascarenas, Mrs. Lela Schauer, Mr. Herbert Schwien and Mr. Jon Kolomitz, in their official capacities as members of the Board of Education of School District R-1, Otero County Defendants-Appellants.

No. 78-584.

Colorado Court of Appeals, Div. III.

Oct. 12, 1978.

Steve E. Alcala, La Junta, Norman Aaronson, Alamosa, Bruce Boreson, La Junta, for plaintiffs-appellees.

Ralph N. Wadleigh, La Junta, for defendants-appellants.

Caplan & Earnest, Gerald A. Caplan, Boulder, for Colorado Ass'n of School Executives amicus curiae.

VanCISE, Judge.

Based on the "attendance-tardies" policy adopted by La Junta High School and by the East Otero School District R-1 Board of Education, plaintiffs Artie and Carlos Gutierrez (the students) were denied academic credit for the fall semester of the 1977-1978 school year at La Junta High School. The students and their parents then brought this action in the district court seeking a declaratory judgment and judicial review of the order of the board of education. The court decreed that the attendance policy was contrary to state law and thus null and void insofar as the policy denied academic credit to the students for having failed to meet the attendance requirements established by that policy. It further ordered that the students be allowed academic credit for the fall semester upon completion of any remaining necessary academic requirements. The defendants (collectively the school district) appeal. We affirm.

The case was tried to the court on a stipulation of facts and issue, and on admissions in the pleadings. The issue for decision was whether the school district could lawfully promulgate and enforce the attendance-tardies policy within the scope of the rule-making authority delegated to local school boards pursuant to § 22-32-109(1)(w), C.R.S.1973 (1976 Cum.Supp.). That statute authorizes a school board:

"To adopt written policies, rules and regulations, not inconsistent with law, which may relate to the study, discipline, conduct, safety, and welfare of all pupils, or any classification of pupils, enrolled in the public schools of the school district and to adopt written procedures, not inconsistent with article 33 of this title, for the suspension and expulsion of, or denial of admission to, a pupil, which procedures shall afford due process of law to pupils, parents, and school personnel."

The attendance-tardies policy of the school district provided that a student will be denied academic credit for all classes in which more than seven "absences" occur in a semester. "The seven (7) days of absence are to accommodate such things as:

a. Personal illness.

b. Professional appointments that could not be scheduled outside the regular school day.

c. Serious personal or family problems.

d. Or any other reason."

An attendance review board is created, "to meet when requested by a student, teacher, parent, or counselor to examine the specific conditions relating to an individual case . . . . Disciplinary suspension days will be included in the total days absent." The review board "may extend the absence limit, continue the student's enrollment in the class(es) on a probationary basis, or take such action as is indicated."

During the fall semester of the 1977-78 school year, the students accumulated in excess of seven "absences." These included tardies, truancies, suspension days, and excused absences. Thereafter,...