KRISTOFFER A. KOLESNICK, A MINOR, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, EDITH SHAW, APPELLEE, V. OMAHA PUBLIC SCHOOL DISTRICT ET AL., APPELLANTS.
No. S-95-099.
Supreme Court of Nebraska
January 24, 1997
558 N.W.2d 807
APPEAL DISMISSED.
C. Jan Headley and Jeffrey T. Palzer for appellee.
Catherine Mahern, of Creighton Legal Clinic, for amicus curiae Paul Dilly.
WHITE, C.J., FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.
LANPHIER, J.
The Omaha Public School District (OPS) adopted a student code of conduct for the 1994-95 school year, which provided for a two-semester expulsion for the possession of a weapon, including a knife, at school. On September 23, 1994, Kristoffer Kolesnick, an eighth grade student at King Science Center, brought a switchblade knife to school. On September 29, after learning about the knife incident, Deborah Frison, the assistant
Kolesnick filed a petition in Douglas County District Court by and through his mother and next friend, appealing this decision. The district court found that Kolesnick had been prejudiced by the two-semester expulsion because his substantial rights were violated. The district court then reduced the two-semester expulsion to a one-semester expulsion. OPS appealed the district court‘s decision pursuant to the Administrative Procedure Act and filed a petition to bypass review by the Nebraska Court of Appeals. We granted OPS’ petition to bypass.
BACKGROUND
OPS adopted a student code of conduct for the 1994-95 school year, which included the following section:
e. Weapon (Guns, Knives and Other Dangerous Weapons) (Grades 7-12)
Students are forbidden knowingly and voluntarily to bring to school, possess, handle, transmit or use any gun, knife, or other dangerous weapons in school or on school grounds or at a school function off school grounds.
First Offense: Expulsion. Remainder of the semester and the following semester or the remainder of the semester, summer school and the first semester of the following year.
In August 1994, Kolesnick signed a form acknowledging his receipt of a handbook containing the student code of conduct and other school rules.
That evening, Condon told his parents about the incident on the bus. Condon‘s mother asked him not to discuss the incident with anyone for fear of retaliation by Kolesnick. On the evening of September 27, Condon‘s mother informed Frank Murch, OPS bus 686‘s regular driver, of the incident and told him she had been keeping Condon home out of concern for Condon‘s safety.
On the morning of September 28, Murch related his conversation with Condon‘s mother to his supervisor, Martha Holmes. Holmes immediately contacted King Science Center to inform them that Kolesnick was in possession of a knife on OPS bus 686. Upon receiving that information, Frison and Forth Carmichael, a security officer, immediately searched Kolesnick‘s locker. When no knife was found, Kolesnick was asked to go to Frison‘s office.
Frison asked Kolesnick about the incident on OPS bus 686. Kolesnick stated that he had shown Condon a nail clipper with a foldout knife he had found on the street. Frison then contacted Condon‘s mother, who related Condon‘s story about the switchblade knife to Frison. Robert Jorgensen, principal of King Science Center, questioned Kolesnick as to where the switchblade was. Kolesnick told him it was at his home. Jorgensen then suggested that Frison and Kolesnick go to Kolesnick‘s home and retrieve the knife.
Frison, Carmichael, and Kolesnick then went to Kolesnick‘s home. Frison explained the situation to Shaw, and Shaw invited Frison and Carmichael into her home. Kolesnick then went to
On September 29, 1994, Frison sent a letter to Shaw notifying her that Frison was recommending that Kolesnick be expelled from King Science Center for the remainder of the current semester and the following semester. On October 4, OPS received a request for a hearing concerning the recommendation that Kolesnick be expelled. On October 11, a hearing was held before a hearing officer to the department of student personnel for OPS, and expulsion was recommended. On October 17, Ronald Burmood, director of student personnel services for OPS, notified Kolesnick of the decision to expel him for the remainder of the current semester and the following semester. Kolesnick filed a timely appeal of that decision of the superintendent to the board of education. On November 9, the ad hoc discipline hearing committee of the board of education of OPS affirmed the decision.
Pursuant to
OPS and the other defendants appeal from that decision.
ASSIGNMENTS OF ERROR
Summarized and restated, OPS assigns as error (1) the district court‘s ruling that the two-semester expulsion was in violation of constitutional provisions and (2) the district court‘s failure to rule that Kolesnick‘s expulsion with regard to the switchblade knife was within the statutory authority of OPS;
STANDARD OF REVIEW
Appeals from the district court under the Student Discipline Act are governed by the Administrative Procedure Act. On an appeal under the Administrative Procedure Act, an appellate court reviews the judgment of the district court for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings. Rainbolt v. State, 250 Neb. 567, 550 N.W.2d 341 (1996); Knowlton v. Harvey, 249 Neb. 693, 545 N.W.2d 434 (1996); Metro Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996); George Rose & Sons v. Nebraska Dept. of Revenue, 248 Neb. 92, 532 N.W.2d 18 (1995).
A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Val-Pak of Omaha v. Department of Revenue, 249 Neb. 776, 545 N.W.2d 447 (1996).
ANALYSIS
The Student Discipline Act,
affirm the decision of the school board or board of education, remand the case for further proceedings, or reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the board‘s decision is:
(a) In violation of constitutional provisions;
(b) In excess of the statutory authority or jurisdiction of the board;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Unsupported by competent, material, and substantial evidence in view of the entire record as made on review; or
(f) Arbitrary or capricious.
Pursuant to this section, the district court is given the power to review the decision of the board of education. The power to affirm, reverse, modify, or remand the case for further proceedings, however, depends on whether the petitioner‘s substantial rights have been prejudiced. Thus, to determine whether the decision of the board should be altered in this case, we must first determine if Kolesnick was prejudiced.
First, Kolesnick argues that his substantial rights were prejudiced because his constitutional rights were violated. Education, however, has not been determined to be a fundamental right under the U.S. Constitution. See, Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982); San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973); Craig v. Selma City School Bd., 801 F. Supp. 585 (S.D. Ala. 1992).
We decline to hold, in the context of student discipline, that a student has a fundamental right to education, which would trigger strict scrutiny analysis whenever a student‘s misconduct
Under the rational basis test, as long as the official action is directed to a legitimate purpose and is rationally related to achieving that purpose, it is not unconstitutional. See, Plyler v. Doe, supra; Williamson v. Lee Optical Co., 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955). Applying this rational basis test to the facts of this case, we conclude that Kolesnick‘s expulsion was rationally related to the board and the school officials’ interest in protecting other students and staff from violence. The board was aware that Kolesnick knowingly possessed a knife on school property and used the knife to poke holes in his coat and a bus seat. The board was also aware of Condon‘s mother‘s decision to keep her son out of school for fear of repercussions by Kolesnick. Both the use of the knife and Condon‘s mother‘s fear for her son‘s safety reinforce the school‘s interest in protecting students and staff from violence. Expulsion is a rationally related means of protecting students and staff from violence. Accordingly, Kolesnick‘s expulsion did not violate his rights under the Nebraska or federal Constitution.
While some courts have recognized substantive due process limitations on the severity of disciplinary sanctions imposed on students in the public education system, these courts have determined that a court may overturn a school district‘s ruling if there is a shocking disparity between the punishment and the offense. See, New v. City of Minneapolis, 792 F.2d 724, 726 (8th Cir. 1986) (stating that defendant-appellant‘s conduct must be “‘offensive to human dignity‘“); Fitzgerald v. Williamson, 787 F.2d 403 (8th Cir. 1986); Mitchell v. Board of Trustees of Oxford, etc., 625 F.2d 660 (5th Cir. 1980); Lee v. Macon County Board of Education, 490 F.2d 458 (5th Cir. 1974); Petrey v. Flaugher, 505 F. Supp. 1087 (1981); Adams v. City of Dothan Bd. of Educ., 485 So. 2d 757 (Ala. App. 1986). We find this rationale persuasive. The fact that the board opted for consis-
Kolesnick‘s next argument is that the discipline and sentence ordered by the board exceeded statutory authority. This argument is also without merit.
Kolesnick argues that the mandatory maximum sentence should not be given to all offenders and that
We have also held that an appellate court will sustain the decision of an administrative body if there is evidence in the record to sustain its findings. In re Application of Jantzen, 245 Neb. 81, 511 N.W.2d 504 (1994). Here, we find the decision of the board to be both within its power and supported by competent evidence. Therefore, the decision to assert the maximum punishment against Kolesnick was within the statutory authority of OPS.
Kolesnick next asserts that the board‘s assignment of the maximum sentence to him was arbitrary and capricious. An arbitrary action is one which is taken “in disregard of the facts or circumstances of the case, without some basis which would lead a reasonable and honest person to the same conclusion.” In re Application of Jantzen, 245 Neb. at 100, 511 N.W.2d at 517.
The evidence is clear that Kolesnick brought a knife to school in violation of the OPS code. The penalty for that violation is expulsion. The board did not disregard the facts, nor was it guided by fancy in applying the stated penalty to Kolesnick. Accordingly, OPS was well within the authority given to it by the Student Discipline Act to expel Kolesnick for the semester in which the incident occurred and the following semester. Such action was neither arbitrary nor capricious.
Finally, Kolesnick asserts that the board‘s decision was not supported by competent, material, or substantial evidence. We disagree. The facts clearly establish that OPS had an expulsion policy for students who bring weapons, including knives, to school. Kolesnick brought the knife to King Science Center by way of OPS bus 686, showed the weapon to another student, and used it to cut his coat sleeve. The evidence clearly indicates that Kolesnick knowingly and voluntarily possessed the switchblade knife on the schoolbus and at school. Accordingly, the board‘s decision was supported by competent, material, and substantial evidence.
CONCLUSION
The appellants did not prejudice Kolesnick‘s substantial rights by ordering the two-semester expulsion. We reject Kolesnick‘s argument that the appellants violated his state and
REVERSED.
CAPORALE, J., not participating.
FAHRNBRUCH, J., concurring in part, and in part dissenting.
I agree with the trial court and with the majority of this court that expulsion from school is an appropriate sanction when a student takes a weapon to school. It should be pointed out, however, that under the Omaha Public School District‘s rule, expulsion for the semester in which the violation occurs and the following semester is inherently inequitable.
Under the rule, if a weapons violation occurs the first week of the fall semester, the violator is expelled not only for the remainder of the fall semester, but also for the spring semester. On the other hand, if a violation occurs the last week before the end of the fall semester, the violator is expelled for only 1 week of the fall semester, plus the entire spring semester. Thus, the student violating the rule at the beginning of the fall semester is punished more severely than the student committing the same violation in the last week of the fall semester.
Fairness dictates that the length of Kolesnick‘s expulsion should have been reduced. In that regard, the decision of the trial judge should have been affirmed.