583 N.E.2d 1358 | Ohio Ct. App. | 1989
This cause comes before the court upon the appeal of plaintiffs, Patricia and William J. Novak, from the judgment of the Summit County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Revere Local School District, on plaintiffs-appellants' claim for reimbursement of student transportation expenses pursuant to R.C.
Appellants assign two errors on appeal.
"II. There was no evidence submitted that proper administrative procedure was followed by the Board in the denial of reimbursement, and therefore, a genuine issue of material fact existed which precluded summary judgment."
The issue raised in the second assignment of error was not raised in the trial court below. The general rule is that an appellate court will not consider any error that a party could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Awan (1986),
Likewise, appellants failed to raise the constitutional issue in their first assignment of error to the trial court. "Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal."Id. at syllabus. This waiver doctrine, however, is discretionary. In re M.D. (1988),
We are thus obliged to look to the merits of appellants' claim of error to determine whether there was plain error in the trial court's failure to recognize that R.C.
R.C.
"In all city, exempted village, and local school districts where resident school pupils in grades kindergarten through eight live more than two miles from the school * * * and to which they are assigned by the board of education of the district of residence or to and from the non-public school which they attend the board of education shall provide transportation for such pupils to and from such school except when, in the judgment of such board, confirmed by the state board of education, such transportation is unnecessary or unreasonable.
"In all city, exempted village, and local school districts the board may provide transportation for resident school pupils in grades nine through twelve to and from high school to which they are assigned by the board of education of the district of residence or to and from the non-public high school which they attend * * *.
"A board of education shall not be required to transport elementary or high school pupils to and from a non-public school where such transportation would require more than thirty minutes of direct travel time as measured by school bus from the collection point as designated by the coordinator of school transportation * * *.
"Where it is impractical to transport a pupil by school conveyance, a board of education may, in lieu of providing such transportation, pay a parent, guardian, or other person in charge of such child, an amount per pupil which shall in no event exceed the average transportation cost per pupil, such average cost to be based on the cost of transportation of children by all boards of education in this state during the next preceding year."
Appellants were denied reimbursement for their child's transportation expenses to a non-public school more than thirty minutes away from the designated collection point, in accordance with the statute. R.C.
Appellants do not argue with this interpretation of the statute; rather, they claim that it is unconstitutionally arbitrary and discriminatory as applied to them. The standard that is applied when reviewing a claim of denial of equal protection depends on whether the statute in question involves either a suspect classification, such as race, or fundamental rights. First, this statute does not create a suspect classification, as the class of students who attend non-public schools beyond thirty-minutes driving distance is not "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio SchoolDist. v. Rodriguez (1973),
Though appellants claim that the unconstitutionality of the statute lies in its discriminatory application, their argument attacks the statute on its face for its classification of students, for reimbursement purposes, on the basis of the travel time required to attend school. Appellants concede that this classification is reasonable for determining which students will be provided transportation, yet argue that it somehow becomes arbitrary and unreasonable when applied in determining those entitled to reimbursement. We fail to find any basis for drawing such a distinction, as any right to reimbursement is secondary and dependent upon the primary right to transportation.
We find no merit in appellants' claim of constitutional violations. The classification of students for the purposes of R.C.
Appellants' assignments of error are not well taken.
Judgment affirmed.
QUILLIN, P.J., and REECE, J., concur.