Richie v. Board of Education

Duane RICHIE, Next Friend of Phillip Richie
v. BOARD of EDUCATION of the Lead Hill School
District; Mark Methvin, President

96-521                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 18, 1996


1.   Schools & school districts -- right of student to appeal
     suspension is issue of public importance -- such cases will
     not be dismissed for mootness. -- The right of a student to
     appeal to the school board a suspension from school made by a
     teacher is an issue of public importance and one subject to
     repetition; the supreme court will not dismiss such a case for
     mootness.

2.   Statutes -- construction of -- effect given to legislative
     intent. -- In construing statutes, words are given their
     ordinary and accepted meaning; in addition, the supreme court
     adheres to the basic rule of statutory construction, which is
     to give effect to the intent of the legislature, making use of
     common sense.

3.   Statutes -- meaning of statute clear -- no occasion to resort
     to rules of statutory construction. -- Where the clear and
     definite meaning of Ark. Code Ann.  6-18-507(b) was that a
     student who has been suspended by a teacher has the right to
     appeal the suspension to the school board, the supreme court
     refused to resort to rules of statutory construction; where
     the language of a statute is plain and unambiguous and conveys
     a clear and definite meaning, there is no occasion for
     resorting to rules of statutory interpretation.     

4.   Schools & school districts -- governmental entity must
     strictly adhere to its own procedures for punishing
     infractions -- procedural due process protections violated
     where district failed to adhere to its own written policy. -- 
     To protect due process, the courts, in matters pertaining to
     a governmental entity's observance and implementation of
     self-prescribed procedures, must be particularly vigilant and
     must hold such entities to a strict adherence to both the
     letter and the spirit of their own rules and regulations;
     here, the district failed to adhere to its own expressly
     enunciated procedures for punishing infractions of its school
     bus rules; because neither alternative form of punishment
     offered to appellant was authorized by the district's own
     written policy, it would have undermined the very purpose of
     procedural due process protections for the court to allow the
     district, through violation of its own procedural guidelines,
     to effectively deny the student's right to appeal his
     suspension from school.  

5.   Mandamus -- when writ will issue -- trial court erred in
     granting summary judgment in appellee's favor. -- A writ of
     mandamus will issue whenever the directors of a school
     district fail or refuse to do an act which is plainly their
     duty to do; because Ark. Code Ann.  6-18-507(b) clearly
     established the legal right to a hearing before the school
     board when a student has been suspended by a teacher, the
     trial court erred in granting summary judgment in appellee's
     favor and denying appellant's petition for writ of mandamus;
     the matter was reversed and remanded.    


     Appeal from Boone Circuit Court; John Lineberger, Judge;
reversed and remanded.
     George B. Morton, for appellant.
     W. Paul Blume, for appellee.

     Bradley D. Jesson, Chief Justice.
     Appellant Duane Richie filed a petition for mandamus in Boone
County Circuit Court on behalf of his son, Phillip Richie, to
compel appellee Lead Hill School District to hear an appeal of
Phillip's three-day suspension from school.  The trial court
granted summary judgment in the district's favor and denied the
petition.  Because we agree that Ark. Code Ann.  6-18-507(b)(Repl.
1993 and Supp. 1995), clearly establishes the legal right to a
hearing before the school board when a student is suspended by a
teacher, we hold that the trial court erred in granting summary
judgment and reverse and remand. 
     On March 29, 1995, Phillip Richie, a sixth grader, was
travelling to a school basketball game in a school bus being driven
by Charles Archer, superintendent of the Lead Hill School District. 
While on the bus, Phillip asked a friend, "Did you fart?" 
According to Mr. Archer, Phillip immediately admitted to asking
this question, which Mr. Archer viewed as obscene.  The
superintendent told Phillip to report to the principal's office the
following morning, at which time Phillip would receive a paddling. 
     The next morning, Duane Richie arrived at the principal's
office with his son.  After explaining what Phillip had said on the
bus, Mr. Archer told Mr. Richie that Phillip would receive a
paddling.  When Mr. Richie complained that the punishment was too
severe for the offense, Mr. Archer, in the presence of Principal
Pat Bailey, explained that the alternative punishment was a three-
day suspension from school.  Mr. Richie would not allow his son to
be paddled, and instructed Phillip to go to their vehicle.  Phillip
did not return to school for three days.    
     In his petition for mandamus, Mr. Richie claimed that he
requested permission to appeal the suspension to the school board
on March 30, April 13, and April 14, 1995, and that all three
requests were denied by the board through Mr. Archer.  The district
filed a motion for summary judgment.  After receiving affidavits
from Mr. Archer and Ms. Bailey and briefs from both parties, the
trial court granted the motion and dismissed the mandamus petition. 
Specifically, the trial court concluded that (1) the mode of
punishment chosen by Mr. Archer, a paddling, was not appealable;
(2) Mr. Richie voluntarily selected an alternative form of
punishment -- suspension -- and in doing so forfeited his right to
appeal to the school board; (3) the relief sought was moot because
Phillip had served his suspension; and (4) Mr. Richie was not
entitled to a hearing as a matter of law.  It is from this ruling
that Mr. Richie has appealed.  
     We first address the trial court's ruling that Mr. Richie's
claim was moot because Phillip had already served his suspension. 
In Springdale Bd. of Educ., v. Bowman, 294 Ark. 66, 740 S.W.2d 909
(1987), appellee Bowman, a high-school student, was suspended for
receiving drugs on school grounds and sought and obtained an
injunction in chancery court.  The school board appealed.  We
rejected Bowman's claim that the case was moot since she had
already graduated, reasoning that the questions raised in the case
were issues of public interest and practical importance, and were
subject to repetition.  Id. at 68.  Because we view the right of a
student to appeal to the school board a suspension from school made
by a teacher as an issue of public importance and one subject to
repetition, we decline to dismiss this case for mootness.
     Turning to the merits, Mr. Richie claims that Phillip was
entitled to a hearing in front of the school board as a matter of
law.  Particularly, he asserts that the plain wording of Ark. Code
Ann.  6-18-507(b) specifically gives a student who is suspended
from school by a teacher the right to appeal the suspension to the
school board.  In response, the district asserts that Phillip was
not entitled to appeal his three-day suspension under the United
States Supreme Court's decision in Goss v. Lopez, 419 U.S. 565
(1974), holding that a student facing suspension is entitled, at
the very minimum, to some kind of notice and some kind of hearing. 
The district relies on the portion of the Goss decision in which
the Court stopped short of requiring that hearings in connection
with suspensions less than ten days must afford the student "the
full panoply of procedural rights applicable to a criminal
prosecution." Bethel School Dist. No. 403 v. Frazier, 488 U.S. 675,
686 (1986). 
     In construing statutes, we give words their ordinary meaning
and attempt to give effect to legislative intent:
     The beginning point in interpreting this statute, as with
     all statutes, is to construe words just as they read and
     to give them ordinary and accepted meaning.  In addition,
     this court adheres to the basic rule of statutory
     construction which is to give effect to the intent of the
     legislature, making use of common sense.

Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 221 (1995), quoting State v. Johnson, 317 Ark. 226, 876 S.W.2d 577, 579 (1994) (other citations omitted). 
     The statute at issue, Ark. Code Ann.  6-18-507(b), provides
in pertinent part:
     (b) The board of directors may authorize the teacher to
     suspend any pupils, subject to appeal to the board.

(Emphasis added).  The title to the predecessor of this provision,
Ark. Stat. Ann.  80-1516 (Repl. 1980) is "Suspension of pupils --
Causes -- Right to appeal" (emphasis added).  
     While the United States Supreme Court has outlined in Goss v.
Lopez what minimum due process is required in cases involving
school suspensions and expulsions, some states have accorded
greater substantive and procedural due process rights than the
minima that are mandated by the Fourteenth Amendment.  William D.
Valente, Education Law -- Public and Private,  16.91 at 567 (1985
and Supp. 1995).  When reading  6-18-507(b), it is clear that our
legislature has afforded greater procedural due process protections
to students who have been suspended by teachers.  Section 6-18-
507(b) gives the suspended student the right to a hearing before
the school board.  There is no qualification in the statute
indicating that it only applies to suspensions greater than ten
days, and we cannot defy the plain meaning of this provision by
inserting such a restriction.  The legislature has amended  6-18-
507 twice since Goss v. Lopez was decided, and has chosen not to
revise or remove this subsection. See Act 567 of 1995; Act 441 of
1979.  We have repeatedly held that, where the language of a
statute is plain and unambiguous and conveys a clear and definite
meaning, there is no occasion for resorting to rules of statutory
interpretation. Office of Child Support Enforcement v. Harnage,
supra; Arkansas Dep't of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993).  The clear and definite meaning of  6-18-507(b) 
is that a student who is suspended by a teacher has the right to
appeal the suspension to the school board.   
     The dissent cites Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994), in support of its position that Ark. Code Ann.  6-18-
502(c) (Supp. 1995), which generally directs the Arkansas
Department of Education to establish school-district student-
discipline policies, impliedly repeals  6-18-507(b).  We initially
observe that this point was not raised in the parties' briefs.  In
any event, the dissent's reliance on Donoho is misplaced.  In that
case, we held that a subsequent, specific statute governing the
timeliness of setoffs of judgments impliedly repealed two earlier
provisions generally authorizing setoffs.  Here, we have a specific
statute governing a student's right to appeal a suspension by a
teacher to the school board.  The general statute cited by the
dissent simply cannot impliedly appeal this specific statute at
issue.  See Donoho, 318 Ark. at 639.  We feel certain that, if the
legislature no longer wishes to provide these heightened procedural
due process protections to students who face teacher suspensions,
it will amend or repeal  6-18-507(b).     
     The district also asserts that, because Mr. Richie voluntarily
selected suspension as an alternative form of punishment to
paddling, he forfeited his right to appeal the suspension to the
school board.  While the trial court agreed with district's
contention, we do not.   
     The General Assembly has charged the Department of Education
with the responsibility of establishing guidelines for the
development of school-district student-discipline policies.  Ark.
Code Ann.  6-18-502 (Supp. 1995).  In turn, each school district
is responsible for developing its own written policies in
compliance with the Department's guidelines.  Ark. Code Ann.  6-
18-503 (Supp. 1995).  The Lead Hill School District developed a
written student-discipline policy which includes certain rules
concerning conduct on its buses.  Particularly, Rule 8 prohibits
loud yelling and profane language.  Specific disciplinary
procedures for infractions of bus rules are as follows:
     1. Warning, conference with student
     2. Paddling
     3. Suspension from bus (3 days)
     4. Conference: Principal/bus driver/bus supervisor/parent
                    Suspension from the bus

(Emphasis added.)  The policy further provides that the
standardized lists for disciplinary infractions will be adhered to
in "alphabetical" order after each occurrence.  In Mr. Archer's
affidavit, he states that "[I]t is the standard practice in the
Lead Hill School District to paddle, with three (3) licks, each
student who utters an obscenity or profanity, whether on a school
bus or on campus."  Obviously, the standard practice that Mr.
Archer articulates differs from the district's written policy.  To
protect due process, the courts, in matters pertaining to a
governmental entity's observance and implementation of
self-prescribed procedures, must be particularly vigilant and must
hold such entities to a strict adherence to both the letter and the
spirit of their own rules and regulations. Smith v. Denton, 320
Ark. 253, 895 S.W.2d 550 (1995).  In this case, the district failed
to adhere to its own expressly enunciated procedures for punishing
infractions of its school bus rules.  Because neither alternative
form of punishment offered to Phillip was authorized by the
district's own written policy, it would undermine the very purpose
of procedural due process protections for us to allow the district,
through violation of its own procedural guidelines, to effectively
deny Phillip's right to appeal his suspension from school.  
     A writ of mandamus will issue whenever the directors of a
school district fail or refuse to do an act which is plainly their
duty to do. Springdale Bd. of Educ. v. Bowman, supra; Maddox, et
al. v. Neal, et al., 45 Ark. 121 (1885). Because  6-18-507(b)
clearly establishes the legal right to a hearing before the school
board when a student is suspended by a teacher, we hold that the
trial court erred in granting summary judgment in appellee's favor
and denying Mr. Richie's petition for writ of mandamus. 
     Reversed and remanded.    
     Dudley, Glaze, and Brown, JJ. dissent.

=================================================================
     Robert L. Brown, Associate Justice, dissents.
     Although I agree that the relief sought by Phillip Richie is
not moot because of the potential for recurrence, I must
respectfully dissent.  The practical effect of the majority opinion
is to hold that any student, whether in the Lead Hill, Pine Bluff,
or Little Rock School District, has a mandated right to have
appeals of suspensions heard by the school board.  This is so,
according to the holding, even when the suspensions are for half a
day.  That interpretation reaches an absurd result because I can
now foresee school boards being inundated by suspension appeals. 
See Hensen v. Fleet Mortgage Co., 319 Ark. 491, 892 S.W.2d 250
(1995).  I respectfully disagree.  
     The predecessor of Ark. Code Ann.  6-18-507(b) (Supp. 1995)
was enacted as part of Act 169 of 1931.  Since that time, the
General Assembly has directed the Arkansas Department of Education
["ADE"] to establish school district student discipline policies. 
1983 Ark. Acts Ex. Session 77, 104.  The Arkansas Code now reads in
relevant part:
     (c) The school discipline policies shall:
                              ....
          (3) Establish procedures for notice to students and
     parents of charges, hearings, and other due process
     proceedings to be applicable in the enforcement and
     administration of such policies by the school
     administrator and by the school board.
Ark. Code Ann.  6-18-502(c) (Supp. 1995)(emphasis added).  In
turn, the ADE, pursuant to this express authority from the General
Assembly, promulgated the following provision:
     Suspension: Schools may suspend students from school.  A
     suspension is defined as dismissing the student from
     school for any time period not exceeding 10 days.  For a
     suspension, the United States Supreme court in Goss v.
     Lopez required that a student be accorded the minimum due
     process requirements under the United States
     Constitution.  Districts should only use suspension
     and/or expulsion when all other alternatives fail. 
     Districts should afford suspended students the following
     rights:
     1.   Prior to any suspension, the principal or his/her
     designee, shall advise the student in question of the
     particular misconduct of which he/she is accused, as well
     as the basis for the accusation.
     2.   The pupil shall be given an opportunity at that time
     to explain his/her version of the facts to the school
     principal or his/her designee.
     3.   Written notice of suspension and the reason(s) for
     the suspension shall be given to the pupil.
     4.   Any parent, legal guardian, or person acting as a
     parent shall have the right to appeal to the
     superintendent or his/her designee.
Arkansas Department of Education Rules and Regulations Governing
Development, Review and Revision of School District Student
Discipline and School Safety Policies  6.04(B). 
     When reading  6-18-502(c) together with the ADE rules, it is
clear that minimal due process is achieved pursuant to Goss v.
Lopez, 419 U.S. 565 (1974), which is all that is required. 
Although not favored, repeal of a statute by implication may be
effected when there exists "an invincible repugnancy between the
former and later provisions that both cannot stand together." 
Donoho v. Donoho, 318 Ark. 637, 639, 887 S.W.2d 290, 291 (1994). 
Furthermore, the implication must be "clear and irresistible." 
Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 532, 715 S.W.2d 432, 434 (1986).
     Section 6-18-507(b), originally enacted in 1931, calls for
appeals before the school board relating to any suspension, which
is clearly repugnant to Ark. Code Ann.  6-18-502(c) (Supp. 1995),
originally enacted in 1983, which directs the ADE to promulgate
appropriate procedures to satisfy due process requirements. 
Mandatory appeals for any and all suspensions, no matter how short
the duration, goes well beyond the General Assembly's subsequent
enactment to address due process requirements and delegate rule-
making authority to the ADE.
     The due process afforded to Phillip Richie with respect to the
three-day suspension is consistent with the ADE rules discussed
above.  Because the ADE rules were promulgated under a later act of
the Arkansas General Assembly and because the majority's reading of
the 1931 Act leads us to an absurd and impractical result, I would
affirm.
     Dudley, J., joins.