In the case of N.Z. v. Madison Bd. of Edn., 2017-Ohio-6992, an Ohio appellate court found that a “Student’s due process rights were protected during the emergency removal, suspension, and expulsion process.” N.Z. at ¶ 51.
The discipline in this matter stemmed from the Student’s participation in a free mobile messaging app which “contained posts including hate speech specifically towards African-Americans, sexually aggressive language, discussions of school shootings, photos of students with access to firearms, photos of stabbing weapons, videos of students with firearms and comments about killing African-Americans.” N.Z. at ¶ 10. The “school administration determined to emergency remove from school the students involved in the message group, including Student.” N.Z. at ¶ 12. The school administration subsequently suspended and expelled the Student and the Student appealed arguing that “the emergency removal, suspension, and expulsion process violated Student’s due process rights because the school administrators did not comply with R.C. 3313.66.” N.Z. at ¶ 21.
As to the emergency removal, R.C. 3313.66(C) provides that, “[i]f a pupil’s presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process [* * *] the superintendent or a principal or assistant principal may remove a pupil from curricular activities or from the school premises.” If a student is removed under this provision, the school must hold a hearing “within three days from the time the initial removal is ordered.” R.C. 3313.66(C). The Student argued that the school did not follow R.C. 3313.66 because the school did not hold the hearing for a full week following the removal. However, the Ohio appellate court noted that the hearing must be held within three school days, not calendar days, and the record showed there was no school on two of the days in the following week due to a holiday and “a bomb threat requiring an evacuation of all buildings in the school district.” N.Z. at ¶ 33. As a result, the Ohio appellate court agreed that the Student’s due process rights were protected during the emergency removal process as the school held the hearing within three school days of the removal.
As to the suspension, the school did not suspend the student until after the emergency removal hearing. The Student argued that these additional “days between his removal and suspension was a de facto expulsion that was not proceeded by notice and hearing.” N.Z. at ¶ 43. However, the Ohio appellate court noted that these additional days “were part of the emergency removal process, not the suspension process” and, as a result, the Student did not suffer any prejudice. This decision would seem to suggest that a school does not need to consider days spent out of school due to an emergency removal when assessing discipline related to the circumstances that led to the student’s emergency removal.
As to the expulsion, the “Student [alleged that he] was deprived of his due process protections because the expulsion hearing was not held within three to five school days after the notice [of intent to expel] was given,” which is required under R.C. 3313.66. N.Z. at ¶ 48. While the Ohio appellate court acknowledged that the school failed to meet this statutory deadline, it found that “the school’s delay in holding the expulsion hearing did not materially affect Student’s due process rights.” N.Z. at ¶ 50.
Even though the Ohio appellate court ruled in favor of the school district with respect to the expulsion – most likely because the student was associated with student violence in an era of increasing concern over student safety – it cannot be stressed enough that schools should always attempt to follow statutory procedures as much as possible. This procedural violation allowed the Student to contest the expulsion decision and subjected the school to the risk of having the expulsion overturned. Fortunately, any statutory delay did not materially affect the Student’s due process rights in this case.
To read this case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.