S.J. v. Thomas, CASE NO. 1D16–3635

• Decision Date: 19 December 2017
• Docket Number: CASE NO. 1D16–3635
• Citation: 233 So.3d 490
• Parties: S.J., Appellant, v. Malcolm THOMAS and School Board for Escambia County, Florida, Appellees.
• Court: Florida District Court of Appeals

233 So.3d 490

S.J., Appellant,

v.Malcolm THOMAS and School Board for Escambia County, Florida, Appellees.

CASE NO. 1D16–3635

District Court of Appeal of Florida, First District.

Opinion filed December 19, 2017

Benjamin James Stevenson, ACLU Foundation of Florida, Pensacola, and Nancy Abudu, ACLU Foundation of Florida, Miami, for Appellant.

Joseph L. Hammons, The Hammons Law Firm, Pensacola, for Appellees.

WOLF, J.

Appellant S.J. challenges a trial court order dismissing with prejudice his complaint requesting mandamus relief. Appellant, a high school student, requested the trial court to require appellee the Escambia County School Board (the School Board) to issue a final order as defined by the Administrative Procedure Act (the APA), in section 120.57(7), Florida Statutes (2015), in an administrative proceeding regarding appellant's "disciplinary reassignment" by the School Board. We find that the complaint for mandamus relief sufficiently alleged facts that entitle appellant to mandamus relief.¹ We, therefore, reverse and remand for the trial court to issue an alternative writ of mandamus directing the School Board to show cause why the alternative writ should not be granted. See Holcomb v. Dep't of Corr., 609 So.2d 751, 753 (Fla. 1st DCA 1992) ; Radford v. Brock, 914 So.2d 1066, 1067–68 (Fla. 2d DCA 2005).

I. Facts

Appellant, a minor, sued the School Board and the Superintendent of Schools, Malcolm Thomas. In his complaint, appellant alleged that the superintendent removed him from his regular, traditional school, West Florida High School, through a process called "disciplinary reassignment," and did not give him an option to attend another traditional school. Instead, appellant alleged he had to finish out the school year at either an alternative school or a virtual school. Appellant opposed the "disciplinary reassignment" and requested a hearing, which was held pursuant to the APA, sections 120.569 and 120.57, Florida Statutes. On January 28, 2016, the hearing officer issued a recommended order recommending appellant be "disciplinarily reassigned" for the remainder of the 2015–2016 school year.

On February 16, 2016, the School Board adopted the hearing officer's recommended order, and in March 2016 it created a Notice of Adoption of Recommended Order. There is no indication that the School Board intended its Notice of Adoption of Recommended Order to be a rendered final order pursuant to section 120.57(7). Further, the School Board's actions throughout this proceeding indicate that although it held a hearing on the issue of appellant's "disciplinary reassignment" pursuant to the APA, it did not intend to bestow upon appellant all of the rights afforded by the APA.

After the Notice of Adoption of Recommended Order was filed, appellant filed a complaint alleging two counts, only one of which is pertinent to the current appeal: appellant requested a writ of mandamus against the School Board, alleging the Board had an indisputable legal duty to issue a written final order pursuant to the APA following the hearing and the hearing officer's recommended order of "disciplinary reassignment." Appellant reasoned that his "disciplinary reassignment" affected his substantial interests much like expulsion. Specifically as to the nature of the "disciplinary reassignment," appellant's complaint alleged:

10. Following an incident on October 1, 2015, the Student's regular school principal suspended the Student.

11. Based on the October 1 incident, the Student's school principal requested that the Superintendent remove the Student from his regular school.

12. On October 21, 2016 [sic], the Superintendent recommended to the School Board to remove the Student from his regular school through a process called "disciplinary reassignment."

13. Both disciplinarily reassigned students and students expelled with services are removed from their regular schools. Expelled students are offered the same educational services at an alternative or virtual school as offered to disciplinarily reassigned students.

14. Like the determination to expel a student, the determination to disciplinarily reassign a student affects his substantial interest.

15. Disciplinary reassign [sic] affects a student's substantial interest in a high quality education and educational opportunities in several ways including the quantity and quality of work assignments, the curriculum design, availability of physical education, the teaching methods and learning activities used, access to highly qualified teachers, positive social interactions with traditional school students during both instructional and non-instructional periods, eligibility to participate in sports and extracurricular activities, blemish on school record, and the location of the school.

16. After the Superintendent issued his recommendation of disciplinary reassignment, the Superintendent prohibited the Student from attending his regular school. The Superintendent has prohibited the Student from attending his regular school since the Superintendent made the recommendation of disciplinary reassignment. The Superintendent continues to prohibit the Student from attending his regular school or any other traditional school in the School District.

....

(Emphasis added).

The School Board moved to dismiss appellant's complaint requesting mandamus relief, alleging it had no legal duty to issue a final written order pursuant to the APA because (1) the Legislature did not explicitly require the same APA due process protections for "disciplinary reassignment" as it did for expulsion, and (2) appellant's "disciplinary reassignment" did not trigger APA protection because it did not affect his substantial interests.

A hearing was held on the motion to dismiss on May 26, 2016, where both parties presented argument. The trial court orally granted the motion to dismiss, holding that the APA did not apply to "disciplinary reassignment" both because (1) the Legislature did not explicitly provide for "disciplinary reassignment" to fall under the purview of the APA like it provided for expulsion; and (2) "disciplinary reassignment" did not affect a substantial interest of appellant. The court also determined that the School Board allowing an administrative hearing in this case and having the hearing officer make findings of fact and conclusions of law did not automatically vest jurisdiction within the APA.

II. Analysis

A request for mandamus relief is appropriate when an agency wrongfully refuses to issue an administrative final order pursuant to the APA. Sowell v. State, 136 So.3d 1285 (Fla. 1st DCA 2014). Our review of a trial court's order dismissing a complaint based upon an interpretation of statutes is de novo. See Walker v. Ellis, 989 So.2d 1250 (Fla. 1st DCA 2008) ; Henry v. State, 134 So.3d 938, 945 (Fla. 2014).

This court has laid out the appropriate procedure for a trial court when ruling on a motion to dismiss a request for mandamus relief. Similar to ruling on any motion to dismiss, the trial court must consider the sufficiency of the allegations as pled.

In order for a court to issue a writ of mandamus, a petitioner "must show that he has a clear legal right to the performance of a clear legal duty by a public officer and that he has no other legal remedies available to him." Hatten v. State, 561 So.2d 562, 563 (Fla.1990). When a petitioner files a petition for mandamus, the court has the initial task of assessing the legal sufficiency of the allegations. If the court finds the allegations insufficient, it will deny the petition, see, e.g., Gibson v. Florida Parole & Probation Comm'n, 450 So.2d 553 (Fla. 1st DCA 1984), or dismiss those claims that are factually insufficient, see, e.g., Adams v. Wainwright, 512 So.2d 1077 (Fla. 1st DCA 1987). However, if the petition is facially sufficient, the court must issue an alternative writ, i.e., an order directed to the respondent to show cause why the requested relief should not be granted. Conner v. Mid–Florida Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA 1989) ; Fla.R.Civ.Pro. 1.630(d).

Holcomb, 609 So.2d at 753.

"Disciplinary reassignment" is neither defined nor mentioned in the Florida Statutes. Thus, the method of review of this type of disciplinary action of the School Board is not clearly outlined. However, other types of disciplinary decisions are specifically addressed in the statutes, which set out the methods of review of those decisions. Appellant claims he is entitled to a final order under the APA and that such a final order is necessary for this court to review this case on the merits. Mitchell v. Leon County Sch. Bd., 591 So.2d 1032, 1033 (Fla. 1st DCA 1991) ("In the absence of rendition of a proper order there is nothing for this court to review nor, for that matter, any true legal obstacle to Mitchell's return to classes."). We, therefore, must resolve two issues: (A) whether "disciplinary reassignment," as set out in the complaint, is sufficiently similar to other types of discipline that fall under the purview of the APA to also require APA protections in this case, including the rendering of a final order; and (B) even if "disciplinary reassignment" is not sufficiently similar to other types of discipline, whether its application nonetheless affects appellant's substantial interests and therefore requires application of the APA.

A. Whether "Disciplinary Reassignment" is Similar to Other Types of Education Code Discipline

The Florida Legislature permits school districts to deprive a student of his or her constitutional right to an education in a traditional school and remove the student from the classroom in four specific ways. School districts may remove a student through (1) in-school suspension; (2) out-of-school suspension; (3) expulsion; and (4) either voluntary or involuntary assignment to a "dropout prevention [or] academic intervention program." See § 1006.07(1)(a), Fla. Stat. (2015) (directing school boards to adopt rules for the "in-school...