State ex rel. Barno v. Crestwood Bd. of Edn.

• Decision Date: 22 June 1998
• Parties: The STATE ex rel. BARNO, Appellant, v. CRESTWOOD BOARD OF EDUCATION et al., Appellees.
• Court: Ohio Court of Appeals

134 Ohio App.3d 494

731 NE 2d 701

The STATE ex rel. BARNO, Appellant, v. CRESTWOOD BOARD OF EDUCATION et al., Appellees.

Court of Appeals of Ohio, Eleventh District, Portage County.

Decided June 22, 1998.

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Jennifer Barno, pro se.

Gary Lee Pierce and Douglas K. Paul, for appellees.

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NADER, Presiding Judge.

In this case we are squarely confronted with the question whether a board of education may validly enact a student attendance policy that denies a high school senior her diploma solely as a consequence of absenteeism. It is an issue of first impression in Ohio, and, insofar as the procedural posture of this appeal is unique, we believe it to be an issue of first impression for the entire nation.

I

In the spring of 1997, appellant, Jennifer L. Barno, was a senior at the Maplewood Area Joint Vocational School in Ravenna, Ohio. A few days before her class was scheduled to graduate, Jennifer filed an action for a writ of mandamus in the Portage County Court of Common Pleas against the appellees, various superintendents and the boards of education of her home school and the vocational school. For cause, Jennifer stated that she had successfully completed the vocational school's curriculum, earning a grade point average of 3.966 out of 4.0 through the first five grading periods of her senior year, and that she had passed all the proficiency tests that were required by state law. She argued that appellees had a clear duty under R.C. 3313.61¹ to issue her a high school diploma and that appellees had violated that duty when they informed her she would not receive academic credit for her senior year.

The trial court issued an alternative writ, and on the return day, the appellees responded that Jennifer was not entitled to a diploma because she had not completed the "curriculum" as defined by the Maplewood JVS Board of Education. The board had enacted a strict attendance policy requiring each student to attain a ninety-three-percent attendance rate to receive academic credit. Since the school year was one hundred eighty-two days long, a student could be absent approximately thirteen days and still graduate. This policy, which was adopted in 1986 or 1987, was published every year in the student handbook. Jennifer received a copy of the 1996-1997 student handbook explaining the policy.

Jennifer was absent a total of eighteen and one-half days her senior year. All but two of these were excused,² but under the terms of the Maplewood policy, both excused and unexcused absences count against the student when figuring the final attendance rate. The principal of the JVS informed Jennifer that she would not be allowed to graduate because of her poor attendance.

Jennifer filed an extenuating-circumstances form to request reinstatement of her academic credit, asserting that her absences were due to minor personal illnesses and a family vacation. This form was considered by a credit-reinstatement committee consisting of the principal and three teachers at the JVS, but the committee did not find that these were adequate extenuating circumstances. Jennifer filed an "appeal," which can best be described as a request for reconsideration. In an attached memorandum, Jennifer provided a more detailed statement of her claim of extenuating circumstances. She alleged that her attendance records were inaccurate because she had been in the school clinic on one of the days the school recorded her as being truant.³ She also requested special consideration because she worked approximately twenty hours per week while attending school. The committee again denied reinstatement notwithstanding the additional considerations.

On these facts, the matter was submitted to the court.

II

For a writ of mandamus to issue, the relator must demonstrate that she has a clear right to the requested relief, that the respondents have a clear legal duty to perform the requested actions, and that she has no adequate remedy in the ordinary course of law. Hardrives Paving & Constr., Inc. v. Niles (1994), 99 Ohio App.3d 243, 246, 650 N.E.2d 482, 483-484; State ex rel. Jones v. Smith (May 15, 1998), Trumbull App. No. 97-T-0178, unreported, 1998 WL 258160.

The trial court addressed the merits of the issue without determining whether Jennifer had an adequate remedy at law. That omission is not fatal to the court's judgment because we can independently determine that an extraordinary writ is an appropriate remedy under these circumstances.

A

The trial court remarked in its judgment entry that Jennifer did not appeal the reinstatement committee's denial of her motion to reconsider. In oral argument, Jennifer claimed that no one informed her of a right of appeal to either the board of education or the superintendent of the joint vocational school district. That claim is supported by the record because the student handbook does not contain any provisions regarding a right of appeal from the reinstatement committee's determination.

Presumably, the court meant that Jennifer could have appealed directly to the court of common pleas under R.C. 2506.01. We disagree.

Courts may review only quasi-judicial administrative proceedings under R.C. 2506.01. DeLong v. Southwest School Dist. Bd. of Edn. (1973), 36 Ohio St.2d 62, 65 O.O.2d 213, 303 N.E.2d 890. Whether such proceedings before the administrative tribunal are quasi-judicial depends on whether the aggrieved party had a right to notice and an opportunity to be heard. In re Appeal of Howard (1991), 73 Ohio App.3d 717, 598 N.E.2d 165. The fact that the tribunal actually afforded these rights is not material to the inquiry, which focuses on whether the tribunal was required to afford these rights. Id. These procedures, notice and an opportunity to be heard, are required under the United States Constitution only where the state seeks to deprive a person of a right to life, liberty, or property that is somehow conferred by state law. Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494, 501.

Although R.C. 3313.48 and 3313.64, which provide for a free public education in Ohio, have been interpreted as conferring a statutory right upon our children to attend school so that school officials may not deprive a student of that right without due process of law, Goss v. Lopez (1975), 419 U.S. 565, 573, 95 S.Ct. 729, 735-736, 42 L.Ed.2d 725, 733-734, that interest was not at stake in this case. Jennifer was not deprived of her right to attend Maplewood JVS; she was denied academic credit for her senior year. There is no comparable statutory or case law that confers upon her a right to academic credit so that school officials would be compelled to afford notice and an opportunity to be heard before deciding to deny it.

Since there was no liberty or property interest created by state law at stake before the reinstatement committee, it was not required under the Due Process Clause to afford Jennifer any procedural safeguards whatsoever, and these were not quasi-judicial proceedings from which an appeal would lie pursuant to R.C. 2506.01.

Jennifer had no right of appeal under the policy or under R.C. 2506.01, so neither of these barred the court from considering her petition in mandamus.

B

Hypothetically, Jennifer could have filed an action for an injunction or for declaratory judgment in order to obtain judicial review of Maplewood's attendance policy. However, an action for mandatory injunction does not bar mandamus because the injunction itself is not a remedy available in the ordinary course of law. State ex rel. Levin v. Schremp (1995), 73 Ohio St.3d 733, 735, 654 N.E.2d 1258, 1260-1261.

Similarly, the availability of declaratory judgment does not automatically bar the issuance of a writ of mandamus, but may be considered by a court as an element in exercising its discretion whether a writ should issue. State ex rel. Fenske v. McGovern (1984), 11 Ohio St.3d 129, 11 OBR 426, 464 N.E.2d 525, paragraph two of the syllabus.

A remedy at law will be regarded as adequate and therefore as sufficient grounds to refuse a petition for a writ of mandamus only where the remedy offers complete, beneficial, and speedy relief. State ex rel. Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 65 Ohio St.3d 323, 328, 603 N.E.2d 1005, 1009. That is to say, the remedy must be adequate under the circumstances. State ex rel. Butler v. Demis (1981), 66 Ohio St.2d 123, 124, 20 O.O.3d 121, 121-122, 420 N.E.2d 116, 117.

The credit-reinstatement committee denied Jennifer's motion for reconsideration on Friday, May 23, 1997. Her class was scheduled to graduate on Sunday, June 8, 1997. This left only sixteen days for Jennifer to obtain judicial review. The facts of this case are analogous to an election case, where a voter or candidate seeks court review of the actions of election officials before a ballot is scheduled to be taken, in a few days. In such cases, the Supreme Court has repeatedly held that declaratory judgment is inadequate because it is too slow, being governed by traditional rules of civil procedure, including a twenty-eight-day period which the defendants have in which to answer. E.g., State ex rel. Arnett v. Winemiller (1997), 80 Ohio St.3d 255, 259, 685 N.E.2d 1219, 1222; State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 341, 673 N.E.2d 1351, 1354. Likewise, in this case, an action for declaratory judgment would have been too slow to afford Jennifer complete relief.

Since Jennifer did not have an adequate remedy in the ordinary course of law, the trial court properly addressed the merits of her petition.

III

The trial court, in its judgment entry, lectured Jennifer about accepting the consequences of her actions, then denied her petition, holding, in essence, that she was not entitled to a diploma and that the...