Michael Commons v. Westlake City Schools

• Decision Date: 29 February 1996
• Docket Number: 68843,96-LW-0911
• Parties: MICHAEL COMMONS, ET AL., Plaintiffs-appellants v. WESTLAKE CITY SCHOOLS, Defendant-appellee
• Court: Ohio Court of Appeals

MICHAEL COMMONS, ET AL Plaintiffs-appellants v. WESTLAKE CITY SCHOOLS, Defendant-appellee

No. 68843.

96-LW-0911 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

February 29, 1996

Civil appeal from Court of Common Pleas Case No. CV-27835.

FOR PLAINTIFFS-APPELLANTS: Joseph E. Ujczo, Esq., Walter T Spalding, Jr., Esq., Spalding & Ujczo Co., L.P.A., 24500 Center Ridge Road, #175, Westlake, Ohio 44145.

FOR DEFENDANT-APPELLEE: John C. Burkholder, Esq., Scott C Peters, Esq., Means, Bichimer, Burkholder & Baker Co., L.P.A., Summit One, Suite 540, 4700 Rockside Road, Cleveland, Ohio 44131-2152.

OPINION

HARPER J.

Plaintiff-appellant, Michael Commons, a minor, by and through his father and natural guardian, Carl Commons, appeals from the entry of summary judgment in favor of defendant-appellee, the Westlake City Schools Board of Education ("the Board"), by the Court of Common Pleas of Cuyahoga County. Appellant submits that genuine issues of material fact remain for litigation regarding his declaratory judgment action in which he sought recognition of academic credit earned during a period of expulsion. A careful review of the record compels affirmance.

Appellant, when a freshman at Westlake High School, brought a handgun to school in violation of Section II of the Code of Student Conduct. The violation resulted in appellant's eighty-day expulsion from school, commencing on January 19, 1993 and terminating on May 20, 1993. As part of the expulsion process, appellant's family received a written "NOTICE OF EXPULSION FROM SCHOOL," along with a "NOTICE OF RIGHTS RE: EXPULSION FROM SCHOOL" and a "NOTICE OF ASSISTANCE PROGRAMS RE: EXPULSION FROM SCHOOL." The latter notice provided, in part, the name, address and telephone number of the individual who acted as the home-school contact for the school district. The notice advised that "[w]hile credit cannot be given during expulsion, assistance is available."

Appellant's parents, in a letter dated March 1, 1993, informed Beverly B. Reep, Superintendent of the school district, that they enrolled appellant in the Academy of Home Education ("the Academy"). The Commonses related that appellant would not return to the high school for the 1992-1993 academic year following the end of his expulsion period, but would complete his ninth grade education in this home schooling program.

The Commonses sent a second letter to Reep in late April 1993, stating therein that appellant would return to Westlake High School for the 1993-1994 school year. The correspondence to Reep stated, please let us know if "you plan to make any special assessment of his readiness to enter the tenth grade."

Reep responded to the Commonses request in a few days. She informed them that their April 1993 letter was forwarded to Dr. Christina Dinklocker, the Assistant Superintendent for Curriculum and Instruction. According to Reep's letter, Dinklocker would review the Academy's accreditation and contact the Commonses regarding appellant's readiness to rejoin his classmates at the high school for his sophomore year.

The Commonses forwarded another letter to Reep on June 13, 1993. They repeated an earlier request that appellant's textbooks be reviewed in order to determine whether appellant received a "quality education" through the Academy.

David Minich, Principal of Westlake High School, informed the Commonses via a June 16, 1993 letter that pursuant to the school district's policy, credit would not be granted to appellant for his Academy school education. Minich, in part, referenced the notice relating to assistance programs wherein it was specifically stated that credit was not to be given for education received during expulsion.

After receipt of Minich's letter, the Commonses sought Reep's support and assistance in a letter to her on June 21, 1993. The letter contained references to appellant's "withdrawal" from school, and Chapter 3301-34 of the Rules for Excuses from Compulsory Education adopted by the State Board of Education. The Commonses suggested to Reep that the rules required appellant's placement at the school upon his return to be based on an assessment of his educational progress, including his schooling with the Academy.

Reep responded to the Commonses latest letter in a letter dated June 29, 1993. She initially set forth five points which related to the parents' concerns. First, Reep stated that the expulsion forms clearly advised that appellant could not receive credit during his 80-day expulsion. Second, she explained that the notice of assistance programs was required by the Ohio Revised Code. Reep noted that even though Dr. Dinklocker's name was listed as the district's home schooling adviser, the Commonses failed to contact Dinklocker regarding appellant's home education. Third, Reep emphasized that the letter forwarded to her by the Commonses on March 1, 1993 qualified neither as a formal withdrawal notification nor a formal notification of home schooling. Fourth, the Commonses were advised that appellant could not earn home schooling credit for the period of expulsion.

Finally, Reep outlined the assessment options available under O.A.C. 3301-3404. Reep then advised the Commonses that a review of appellant's textbooks was not an assessment option available under the rule.

In conclusion, and with the foregoing points in mind, Reep concluded, in part:

[I] will not allow earned credit for the 80 day period he was expelled. Technically, the home schooling procedure was not properly followed by you. However, we will be happy to evaluate Michael's educational progress through the assessment options listed by 3301-34-04 for the days he was not expelled but not in attendance at Westlake High School.

***

Reep affirmed her conclusion that appellant would not receive credit for his home schooling education during the period of expulsion in an August 9, 1993 letter.

Appellant filed his complaint for declaratory judgment in the trial court on June 23, 1994. Appellant alleged therein that the Board violated his right to due process by refusing to recognize the credits earned through the home schooling program while expelled from Westlake High School. Appellant thus requested the trial court to declare the rights, duties and responsibilities of the parties pursuant to R.C. Chapter 2721.

Both parties filed partial summary judgment motions, the Board on January 30, 1995, and appellant on February 2, 1995. The motions addressed the limited issue of whether a student expelled from public school can earn home schooling credit for education received during the disciplinary expulsion. Following the filing of responsive motions, the trial court granted summary judgment in favor of the Board on March 17, 1995.

This appeal followed with appellant claiming as error:

I.

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEE AND DENYING APPELLANTS' REQUEST FOR RECOGNITION OF ACADEMIC CREDIT EARNED THROUGH ACCREDITED HOME SCHOOLING DURING A PERIOD OF DISCIPLINARY EXPULSION, WHERE APPELLEE, BOARD OF EDUCATION, AND SUPERINTENDENT ACTED WITHOUT STATUTORY AUTHORITY IN DENYING SUCH RECOGNITION.

II.

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEE AND DENYING APPELLANTS' REQUEST FOR RECOGNITION OF ACADEMIC CREDIT EARNED THROUGH ACCREDITED HOME SCHOOLING DURING A PERIOD OF DISCIPLINARY EXPULSION, WHERE BOARD OF EDUCATION AND SUPERINTENDENT ACTED ARBITRARILY, CAPRICIOUSLY AND ABUSED THEIR DISCRETION IN FAILING TO RECOGNIZE ACADEMIC CREDIT.

III.

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEE AND DENYING APPELLANTS' REQUEST FOR RECOGNITION OF ACADEMIC CREDIT EARNED THROUGH ACCREDITED HOME SCHOOLING DURING A PERIOD OF DISCIPLINARY EXPULSION, WHERE BOARD OF EDUCATION AND SUPERINTENDENT IMPOSED ACADEMIC PENALTIES UPON APPELLANT WHICH WERE UNRELATED TO THE BREACH OF DISCIPLINE FOR WHICH APPELLANT WAS EXPELLED WAS A DENIAL OF SUBSTANTIVE DUE PROCESS.

IV.

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEE AND DENYING APPELLANTS' REQUEST FOR RECOGNITION OF ACADEMIC CREDIT EARNED THROUGH ACCREDITED HOME SCHOOLING DURING A PERIOD OF DISCIPLINARY EXPULSION, WHERE STUDENTS SIMILARLY EXPELLED BUT ATTENDING A "STATE CHARTERED" SCHOOL RECEIVED AUTOMATIC RECOGNITION OF CREDIT EARNED, DENIED APPELLANT EQUAL PROTECTION OF THE LAW.

V.

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEE AND DENYING APPELLANTS' REQUEST FOR RECOGNITION OF ACADEMIC CREDIT EARNED THROUGH ACCREDITED HOME SCHOOLING DURING A PERIOD OF DISCIPLINARY EXPULSION WHERE QUESTIONS OF FACT EXIST AS TO WHETHER APPELLANT FOLLOWED PROPER PROCEDURE IN WITHDRAWING FROM WESTLAKE HIGH SCHOOL OR IN APPLYING FOR HOME SCHOOLING.

Appellant basically asserts in his first four assignments of error that the Board acted without statutory or administrative authority when it denied him credit for home schooling education acquired during a period of expulsion. He submits that this denial was an abuse of discretion, and denied him his rights to due process and equal protection. This court notes that except for two cases from Indiana and Pennsylvania, appellant fails to cite to any statutory or legal authority in support of his position even with regard to our review of motion for summary judgment dispositions and his constitutional arguments. See, App.R. 16(A)(7) and Loc.App.R. 6(6). Appellant nonetheless argues that the trial court erroneously granted judgment in favor of the Board.

The granting of summary judgment is only appropriate if there is no genuine issue as to any material fact, and reasonable minds can come to but one conclusion which is adverse to the nonmoving party. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III Inc. (1986), 24 Ohio St.3d 198,...