N.Z. v. Madison Bd. of Educ.

[Cite as N.Z. v. Madison Bd. of Edn., 2017-Ohio-6992.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

N.Z. : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 16CA71
:
MADISON BOARD OF EDUCATION :
:
:
Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No. 2015-CV-
1519 D

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: July 26, 2017

APPEARANCES:

For Plaintiff-Appellant: For Defendant-Appellee:

ALAN M. MEDVICK ANDREW BURTON
23 S, Main St. 9 North Mulberry Street
Third Floor, The Nantucket Building Mansfield, OH 44902
Akron, OH 44308
Richland County, Case No. 16CA71 2

Delaney, P.J.

{¶1} Plaintiff-Appellant N.Z. appeals the September 15, 2016 judgment entry of

the Richland County Court of Common Pleas. N.Z. is the mother of the student involved

in this case. We shall refer to N.Z. and her child as “Mother” and “Student” in this opinion.

FACTS AND PROCEDURAL HISTORY

{¶2} The Madison Local School District is located in Mansfield, Ohio. During the

2015-2016 school year, Student was a pupil at Madison Comprehensive High School.

{¶3} On Tuesday, October 6, 2015, the Madison Comprehensive High School

received a bomb threat, requiring an evacuation of the students from the building.

{¶4} On Friday, October 9, 2015, around the lunch hour, a teacher was walking

down the stairs of the high school and she noticed a three-ring binder laying at the bottom

of the stairwell. The teacher looked at the binder and observed that “Klebold Surprise”

was written on the cover. The names “Dylan Klebold” and “Eric Harris” were also written

on the cover of the binder. Dylan Klebold and Eric Harris were the students responsible

for the 1999 Columbine High School shootings. The teacher did not touch the binder, but

immediately went to the library to contact the Dean of Students about the presence of the

binder in the hallway.

{¶5} The Dean of Students was supervising the lunchroom when he received a

radio message that he needed to report to the library. He came to the library and found

the teacher and librarian in a state of panic. The two teachers took the Dean of Students

to location of the binder. The Dean of Students picked up the binder and took it to his

office. He then radioed the Principal, who was also on lunchroom duty, to come to the

administrative offices.
Richland County, Case No. 16CA71 3

{¶6} The Dean of Students opened the binder. He found academic papers inside

the binder with the name of a student, G.E., written on the papers. The Dean of Students

called G.E. to the office. Upon questioning by the Dean of Students, G.E. said he knew

about the binder but he did not write “Klebold Surprise” on the cover. He said two other

students, Student and B.C., were present when “Klebold Surprise” was written. Student

and B.C. were called to the office.

{¶7} The school administrators interviewed the students to determine why the

students wrote the names of the Columbine shooters on the binder and then left the binder

in the school hallway. Student, G.E., and B.C. were interviewed individually. None of the

students were forthcoming with information and the Dean of Students felt they were being

evasive. G.E. said B.C. wrote the names of the Columbine shooters on the binder. B.C.

said G.E. wrote the names. Student thought B.C. wrote the names.

{¶8} The school administrators confiscated the cell phones of B.C. and G.E.

Student did not have a cell phone. When the Dean of Students picked up B.C.’s cell

phone, the phone received a text message from C.C., another high school student. B.C.

let the Dean of Students read the text message and it stated in part, “We’re fucked, they

know about the Columbine shit, I’m going to get expelled.” The Dean of Students felt the

students were involved in more serious activity than just writing names on a three-ring

binder. C.C. was called to the office.

{¶9} During C.C.’s interview, he told the Dean of Students that a group of

students were part of a message group on Kik. Kik is a free mobile messaging app for

smartphones. While he was speaking, C.C. showed the school administrators his cell

phone and the Principal observed the wallpaper on C.C.’s cell phone was a photo of
Richland County, Case No. 16CA71 4

Adam Lanza, the man who committed the Sandy Hook elementary school shooting. At

this time, the Principal asked the Dean of Students to call law enforcement to continue

the investigation.

{¶10} The school administrators continued to speak with the students regarding

the message group on Kik. One of the students gave the school administrators access to

the message group on the Kik app. A password was required to access the message

group. The message group was named “Klebold Kuck Krew.” The message group

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. Student admitted to being an active participant on the Kik

message group since September 2015. Law enforcement told the school administrators

they felt the participants on the message group could be forming a hate group.

{¶11} After viewing the screen names in the message group, the school

administrators called two more students down to the office. The Dean of Students,

Principal, two other school administrators, and four law enforcement officers were

involved interviewing students, gathering information, and calling the student’s parents.

The investigation started in the late morning on October 9, 2015 and it was not until after

3:00 pm before the last student left.

{¶12} The school administration determined to emergency remove from school

the students involved in the message group, including Student. The basis for the

emergency removal was to allow the school to conduct a further investigation before the

school considered suspension. Pursuant to the 2015-2016 Madison Comprehensive High
Richland County, Case No. 16CA71 5

School Student Handbook, “emergency removal” is “the exclusion of a student who poses

a continuing danger to District property or persons in the District or whose behavior

presents an on-going threat of disrupting the educational process provided by the

District.” On October 9, 2015, the Principal spoke to each student with his or her parent

representative and explained the process for emergency removal. The Principal told the

student and parent representative the school intended to contact them within three days

to tell them when their hearing would be scheduled and to hold the hearing within three

days.

{¶13} No school was held on Monday, October 12, 2015 because it was

Columbus Day. The school administration intended to contact the students on

Wednesday, October 14, 2015, to notify them the emergency removal hearing would be

held on Friday, October 16, 2015. On Wednesday, October 14, 2015, however, the

Madison Local School District received a district-wide bomb threat and all school buildings

were evacuated. The school administration contacted Student on Thursday, October 15,

2015, to notify him of the emergency removal hearing on Friday, October 16, 2015.

{¶14} Student and Mother attended the emergency removal hearing on Friday,

October 16, 2015. The Dean of Students presented an explanation of the events of

October 9, 2015 and why the school administration pursued an emergency removal. The

Principal asked Student if the Dean of Students had presented any inaccurate

information, but Student said everything was accurate. Student admitted to participating

in the message group. He understood the activity on the message group was

inappropriate but he chose not to remove himself from the group. The Principal asked
Richland County, Case No. 16CA71 6

Student if he had anything he wanted to share, expecting Student to offer an apology, but

Student stated he did not have anything to say.

{¶15} At the conclusion of the emergency removal hearing, the Dean of Students

and Principal met separately and determined to suspend Student. The Dean of Students

filled out a “Notice of Intended Suspension From School” form and it was given to Student

and his mother at the emergency removal hearing. The reasons given for Student’s

suspension were for “creating a disturbance of curricular activities” and “attempted to

mislead school personnel” in violation of Sections 5 and 18 of the Code of Student

Conduct. On the form, the Principal checked the box that imposed a ten-day suspension

with recommendation of expulsion. Student signed the form indicating he received a copy

of the Notice of Intended Suspension on October 16, 2016. At the bottom of the form, it

provided for the “Notice of Suspension.” The Principal concluded upon his review of the

facts and circumstances that Student was to be suspended from school for ten days

beginning on Monday, October 19, 2016 and ending Friday, October 30, 2015.

{¶16} On October 16, 2015, the school administrators sent a letter to the

Superintendent recommending that Student be expelled.

{¶17} On Tuesday, October 20, 2015, the Superintendent mailed by ordinary and

certified mail a “Notice of Intent to Consider Expulsion from School” to Student and his

mother at the mailing address listed in the school records. The notice informed Student

and Mother that an expulsion hearing was scheduled on Friday, October 30, 2015.

{¶18} On Thursday, October 22, 2015, there was a bomb threat for the Madison

Local School District and a nearby local school district. On Monday, October 26, 2015,

there was a shooter threat at Madison Local School District.
Richland County, Case No. 16CA71 7

{¶19} On Friday, October 30, 2015, the expulsion hearing went forward before the

Superintendent. Student, his grandmother, and Student’s two attorneys were present at

the hearing. On October 30, 2015, the Superintendent sent a “Notice of Expulsion From

School” to Student and Mother at the mailing address listed in the school records. The

notice informed Student and his mother that the Superintendent expelled Student from

school beginning November 2, 2015 through January 8, 2016. It was also agreed Student

would successfully complete a counseling program and enroll in an online school or

alternative program at the end of his expulsion period. The notice informed Student and

Mother of their right to appeal the expulsion decision to the Madison Local School District

Board of Education. Student appealed.

{¶20} Student, his family, and his counsel appeared before the Madison Local

School District Board of Education on Wednesday, November 18, 2015. The Dean of

Students and the Principal testified at the hearing. After the hearing, the Board of

Education affirmed the Superintendent’s order of expulsion.

{¶21} Mother, on Student’s behalf, filed an administrative appeal of the Board of

Education’s decision with the Richland County Court of Common Pleas pursuant to Ohio

Revised Code Chapter 2506. Mother argued in her appeal that: (1) 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 and (2) Student’s

First Amendment right as to free speech were violated by the Board of Education’s

decision to affirm his expulsion.

{¶22} The trial court issued its decision on September 15, 2016. The trial court

reviewed the whole record to determine if Board of Education’s decision to expel Student
Richland County, Case No. 16CA71 8

from school was supported by a preponderance of reliable, substantial, and probative

evidence. As part of the record, the trial court considered the numerous bomb and

shooting threats that Madison Local School District received during October 2015. The

trial court first found while the school administration did not fully meet the timing

requirements of R.C. 3313.66, Student’s due process rights were not violated during the

emergency removal, suspension, and expulsion proceedings. Student fully participated

in all stages of the proceedings and was represented by counsel at the expulsion hearing

and expulsion appeal. The trial court next found Student’s First Amendment rights were

not violated by Student’s expulsion. The trial court found Student’s private conversation

outside of school in the “Klebold Kuck Krew” message group was brought into school

when the three-ring binder labeled “Klebold Surprise” was found in the school hallway

and the members of the message group warned other members on October 9, 2015 to

not tell the school administration about the message group. The trial court found it relevant

the message group glorified school violence and was discovered by school administrators

during a time the Madison Local School District was receiving multiple bomb and shooting

threats.

{¶23} It is from this decision Mother now appeals.

ASSIGNMENTS OF ERROR

{¶24} Mother raises one Assignment of Error:

{¶25} “THE LOWER COURT ABUSED ITS DISCRETION BY AFFIRMING THE

DECISION OF THE MADISON BOARD OF EDUCATION TO EXPEL STUDENT FROM

MADISON HIGH SCHOOL.”
Richland County, Case No. 16CA71 9

ANALYSIS

Standard of Review

{¶26} Mother argues the trial court abused its discretion when it affirmed the

decision of the Madison Local School District Board of Education to expel Student from

Madison Comprehensive High School. The matter comes before us upon an

administrative appeal pursuant to Ohio Revised Code Chapter 2506.

{¶27} As an appellate court, our standard of review to be applied in an R.C.

2506.04 appeal is “limited in scope.” Kisil v. Sandusky, 12 Ohio St.3d 30, 465 N.E.2d 848

(1984). “This statute grants a more limited power to the court of appeals to review the

judgment of the common pleas court only on ‘questions of law,’ which does not include

the same extensive power to weigh the preponderance of the substantial, reliable, and

probative evidence, as is granted to the common pleas court.” Id. Ultimately, the standard

of review for appellate courts in a R.C. 2506 appeal is “whether the common pleas court

abused its discretion in finding that the administrative order was or was not supported by

reliable, probative, and substantial evidence.” See Weber v. Troy Twp. Board of Zoning

Appeals, 5th Dist. Delaware No. 07 CAH 04 0017, 2008-Ohio-1163. “The standard of

review for courts of appeals in administrative appeals is designed to strongly favor

affirmance” and “permits reversal only when the common pleas court errs in its application

or interpretation of the law or its decision is unsupported by a preponderance of the

evidence as a matter of law.” Cleveland Clinic Foundation v. Cleveland Board of Zoning

Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161.
Richland County, Case No. 16CA71 10

Students Are Entitled to Due Process

{¶28} Mother contends Student’s due process rights were violated by the Madison

Local School District during the emergency removal, suspension, and expulsion process.

Mother argues specifically the school disregarded notification and timing requirements

found in the Madison Comprehensive High School Student Handbook and R.C. 3313.66.

{¶29} The United States Supreme Court has stated that students facing

temporary suspension from public school have property and liberty interests that qualify

for protection under the Due Process Clause under the Fourteenth Amendment. Beaver

v. Licking Valley Local School Dist. Bd. of Edn., 2015-Ohio-4557, 46 N.E.3d 1080, ¶ 29

(5th Dist.) citing Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975),

paragraph one of syllabus. “While children do not ‘shed their constitutional rights * * * at

the schoolhouse gate,’ * * * the nature of those rights is what is appropriate for children in

school.” State v. Polk, 2017-Ohio-2735, -- N.E.3d --, ¶ 22 citing Veronia School Dist., 47J

v. Acton, 515 U.S. 646, 655–656, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) quoting Tinker

v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21

L.Ed.2d 731 (1969). In the Goss case, the Court held that prior to interference with the

student’s legitimate entitlement to a public education as a property interest protected by

the Due Process Clause, due process requires the school to give the student some kind

of notice and afforded some kind of hearing. Goss, supra, at paragraphs one and two of

the syllabus.

Due Process and the Emergency Removal

{¶30} Mother contends Student’s emergency removal from school on October 9,

2015 did not comply with the Madison Comprehensive High School Student Handbook or
Richland County, Case No. 16CA71 11

R.C. 3313.66(C) and therefore violated Student’s due process rights. On October 9, 2015,

after interviewing the students and discussing the matter, the school administrators

decided to remove Student from school. The Principal spoke with Student and Mother to

explain Student was being emergency removed and that the school intended to contact

them within three days to tell them when their hearing would be held. School was not in

session on Monday, October 12, 2015 and Wednesday, October 14, 2015. The school

notified Student and Mother of the hearing on October 15, 2016 to be held on October

16, 2015.

{¶31} The Student Handbook states:

If a student’s presence poses a continuous danger to persons or property,

or an on-going threat of disrupting the academic process, then the

Superintendent, principal or assistant principal may remove the student

from the premises. * * * If a teacher makes an emergency removal, reasons

will be submitted to the principal in writing as soon after the removal as

practicable. * * * If the emergency removal exceeds twenty-four (24) hours,

then a due process hearing will be held within seventy-two (72) hours after

the removal is ordered. Written notice of the hearing and the reason for

removal and any intended disciplinary action will be given to the student as

soon as practical prior to the hearing. The student will have the opportunity

to appear at an informal hearing before the principal, assistant principal,

Superintendent or designee, and has the right to challenge the reasons for

the intended suspension or otherwise explain his/her actions. The person

or persons who ordered or requested the removal will be present at the
Richland County, Case No. 16CA71 12

hearing, and within twenty-four (24) hours of the decision to suspend,

written notification will be given to the parent(s), guardian(s) or custodian(s)

of the student, and Treasurer of the Board. This notice will include the

reasons for the suspension and the right of the student or parent to appeal

to the Superintendent or his/her designee.

{¶32} The Student Handbook follows the language of R.C. 3313.66(C), with one

difference:

* * * If a pupil is removed under this division from a curricular activity or from

the school premises, written notice of the hearing and of the reason for the

removal shall be given to the pupil as soon as practicable prior to the

hearing, which shall be held within three school days from the time the initial

removal is ordered. * * * (Emphasis added.)

{¶33} Mother contends the school did not follow the guidelines of the Student

Handbook or R.C. 3313.66(C) because the school did not give written notice of the

reasons for removal, written notice of the hearing, and the hearing was not held within

three school days or 72 hours from the time the initial removal was ordered. The trial court

found on October 9, 2015, the Principal verbally informed Mother and Student of the

reasons for Student’s emergency removal. Because the emergency removal was going

to exceed 24 hours, the Principal told Mother and Student that they would be contacted

within three days for a hearing. The school did not contact Mother and Student until

October 15, 2016 for the hearing on October 16, 2015. There was no school on October

12, 2015 due to a school holiday and October 15, 2015 due to a bomb threat requiring an

evacuation of all buildings in the school district. The hearing went forward on Friday,
Richland County, Case No. 16CA71 13

October 16, 2015. The trial court found that Mother and Student received sufficient notice

of the reasons for the emergency removal, notice of the hearing, and a hearing to

satisfactorily protect Student’s due process rights.

{¶34} In determining the timing and content of the notice and the nature of the

hearing, the United Supreme Court in Goss recognized that “schools are vast and

complex. Some modicum of discipline and order is essential if the educational function is

to be performed. Events calling for discipline are frequent occurrences and sometimes

require immediate, effective action.” Goss, supra, at 580. “[T]here are recurring situations

in which prior notice and hearing cannot be insisted upon. Students whose presence

poses a continuing danger to persons or property or an ongoing threat of disrupting the

academic process may be immediately removed from school. In such cases, the

necessary notice and rudimentary hearing should follow as soon as practicable * * *.”

Goss, supra, at 582.

{¶35} The school administration determined Student’s involvement in the creation

of the “Klebold Surprise” binder and participation in the “Klebold Kuck Krew” message

group posed a possible threat to the students of the Madison Comprehensive High

School, especially in light of the bomb threat the school received three days before the

discovery of the binder. The school administrators immediately removed Student from

school and provided Student and Mother with the necessary notice and rudimentary

hearing as soon as practicable. Student was removed from school on the afternoon of

Friday, October 9, 2015. School was not in session on Monday, October 12, 2015 and

Wednesday, October 14, 2015. The school notified Student of the hearing on Thursday,

October 15, 2015 to be held on Friday, October 16, 2015. The school notified Student of
Richland County, Case No. 16CA71 14

the hearing within two school days of the emergency removal and held the hearing within

three school days of the emergency removal.

{¶36} The trial court found the preponderance of the substantial, reliable, and

probative evidence supported the finding that Student’s due process rights were protected

during the emergency removal process. We find no abuse of discretion.

Due Process and the Suspension

{¶37} Mother next contends the school administrators violated Student’s due

process rights during the suspension process. On Thursday, October 15, 2015, the school

administration notified Mother and Student by telephone that the emergency

removal/suspension hearing was going to be held on Friday, October 16, 2016. On

Friday, October 16, 2016, Mother and Student appeared at the hearing before the

Principal. The Dean of Students was also present. The Principal provided Mother and

Student a form entitled, “Notice of Intended Suspension from School.” The form notified

Student he may be suspended from school for the reasons of “creating a disturbance in

curricular activities” and “attempted to mislead school personnel” in violation of sections

5 and 18 of the Code of Student Conduct. The form also notified Student the Principal

was considering a ten-day suspension with recommendation of expulsion. Student signed

the form stating he received a copy of the “Notice of Intended Suspension.” During the

hearing, the Dean of Students presented an explanation for the charges against Student

and Student was given an opportunity to present his side of the story. After the hearing,

the Principal determined to suspend Student for ten days. The suspension started on

Monday, October 19, 2015 and ended on Friday, October 30, 2015. Mother and Student

were provided a copy of the “Notice of Suspension” at the hearing.
Richland County, Case No. 16CA71 15

{¶38} The Madison Comprehensive High School Student Handbook states:

* * * No period of suspension will be for more than ten (10) school days. The

guidelines listed below will be followed for all suspensions * * *.

1. The student will be informed in writing of the potential suspension and

the reasons for the proposed action.

2. The student will be provided the opportunity for an informal hearing to

challenge the reason for the intended suspension and explain his/her

actions.

3. An attempt will be made to notify parents or guardians by telephone if a

suspension is issued.

4. Within twenty-four (24) hours, a letter will be sent to the parent or

guardian stating the specific reasons for the suspension and including

notice of their right to appeal such action.

{¶39} R.C. 3313.66(A) states:

Except in the case of a pupil given an in-school suspension, no pupil shall

be suspended unless prior to the suspension the superintendent or principal

does both of the following:

(1) Gives the pupil written notice of the intention to suspend the pupil and

the reasons for the intended suspension * * *

(2) Provides the pupil an opportunity to appear at an informal hearing before

the principal, assistant principal, superintendent, or superintendent's

designee and challenge the reason for the intended suspension or

otherwise to explain the pupil's actions.
Richland County, Case No. 16CA71 16

{¶40} Constitutional due process requires that when a school suspends a student

for ten days or less, the school must provide the student with: “(1) adequate notice of the

charge against the student, (2) an explanation of the evidence supporting the charge and

(3) an opportunity for the student to respond.” Williams v. Cambridge Bd. of Edn. (C.A.6,

2004), 370 F.3d 630, 639, citing Goss v. Lopez (1975), 419 U.S. 565, 583, 95 S.Ct. 729,

42 L.Ed.2d 725.

{¶41} There need not be a delay between the time the school gives the student

“notice” and the time of the hearing. Buckosh v. Westlake City Schools, 8th Dist.

Cuyahoga No. 91714, 2009-Ohio-1093, ¶ 16 citing Goss, supra, at 582. In most cases,

the school administrator may “informally discuss the alleged misconduct with the student

minutes after it has occurred * * *. [I]n being given an opportunity to explain his version of

the facts at this discussion, the student [must] first be told what he is accused of doing

and what the basis of the accusation is.” Id. Both the notice and the hearing should occur

before the school removes the student from the school to serve the suspension. Id.;

Rossman v. Conran (1988), 61 Ohio App.3d 246, 250, 572 N.E.2d 728.

{¶42} The trial court found Student’s due process rights were not violated by the

suspension process. The record in this case supports the finding that Student and Mother

were provided notice of the charge against Student and an opportunity for Student to

respond.

{¶43} Mother also argues the school violated Student’s due process rights by

suspending him in excess of the ten days allowed by statute. Mother claims four school

days passed before Student’s hearing on Friday, October 16, 2015, when he was officially
Richland County, Case No. 16CA71 17

suspended for ten days. Mother contends the additional four days between his removal

and suspension was a de facto expulsion that was not proceeded by notice and hearing.

{¶44} Student was emergency removed in the afternoon of Friday, October 9,

2015. School was not in session on Monday, October 12, 2015 or Wednesday, October

14, 2015. Student was not permitted to attend school on Tuesday, October 13, 2015 and

Thursday, October 15, 2015, and Friday, October 16, 2015. On Thursday, October 15,

2015, the school notified Student of the hearing and held the hearing on Friday, October

16, 2015. Student was not present for three school days. These three school days were

part of the emergency removal process, not the suspension process. The record in this

case shows the school notified Student of the hearing within two school days of the

emergency removal and held the hearing within three school days of the emergency

removal.

{¶45} As the trial court found, we likewise find on appeal Mother has not shown

any prejudice suffered by Student during the suspension process due to notice or hearing

defects.

Due Process and the Expulsion

{¶46} Mother finally contends Student’s due process rights were violated during

the expulsion process. The Madison Comprehensive High School Handbook explains the

expulsion process:

* * * The Superintendent will give the student and parent(s), guardian(s) or

custodian(s) written notice of the intended expulsion, including reasons for

the intended expulsion. The student and parent or representative has the

opportunity to appear on request before the Superintendent or designee to
Richland County, Case No. 16CA71 18

challenge the action or to otherwise explain the student’s actions. This

notice will state the time and place to appear which must not be less than

three (3) days nor later than five (5) days after the notice is given.

Within twenty-four (24) hours of the expulsion, the Superintendent will notify

the parent(s), guardian(s), or custodian(s) of the student and Treasurer of

the Board.

The notice will include the reasons for the expulsion, and the right of the

student, parent(s), guardian(s) or custodian(s) to appeal to the Board of

Education or its designee; the right to be represented at the appeal and the

right to request the hearing be held in executive session.

{¶47} The expulsion process outlined in the Student Handbook follows the

language of R.C. 3313.66(B)(6)(b).

{¶48} The Superintendent issued the “Notice of Intent to Consider Expulsion from

School” to Mother and Student on Tuesday, October 20, 2015. The written notice notified

Student and Mother the expulsion hearing was scheduled for Friday, October 30, 2015.

Mother contends Student was deprived of his due process protections because the

expulsion hearing was not held within three to five school days after the notice was given.

{¶49} The trial court found that pursuant to the statutory guidelines and the

Student Handbook, the hearing should have been held on Monday, October 26, 2015 or

Tuesday, October 27, 2015. “[T]he spirit of R.C. 3313.66 clearly intends that a pupil

should not risk cold evidence nor lose valuable classroom time to administrative delay on

the part of disciplining school officials.” Beaver v. Licking Valley Local School Dist. Bd. of

Edn., 2015-Ohio-4557, 46 N.E.3d 1080, ¶ 41 (5th Dist.) quoting Stuble v. Cuyahoga
Richland County, Case No. 16CA71 19

Valley Joint Vocational School Dist. Bd. of Education, 8th Dist. Cuyahoga No. 44412,

1982 WL 5953 (Oct. 7, 1982). The trial court determined Student suffered no prejudice

from a three-day delay of the hearing. Student did not unnecessarily miss school because

he was serving his suspension from October 19, 2015 to October 30, 2015. At this stage

of the proceedings, Student was represented by counsel. Student did not object to the

hearing date. Student makes no assertion he was prejudiced by the hearing date or his

rights were affected by the hearing date.

{¶50} We find the trial court made no abuse of discretion in determining the

school’s delay in holding the expulsion hearing did not materially affect Student’s due

process rights.

{¶51} In summary, Student’s due process rights were protected during the

emergency removal, suspension, and expulsion process.

Students Have First Amendment Rights, With Exceptions

{¶52} Mother also argues the school violated Student’s First Amendment rights

when it expelled him based on Student’s involvement in the creation of the “Klebold

Surprise” binder and participation in the “Klebold Kuck Krew” message group.

{¶53} The United States Supreme Court held in Tinker v. Des Moines

Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed. 731

(1969) that “First Amendment rights, applied in light of the special characteristics of the

school environment, are available to teachers and students.” Teachers and students do

not “shed their constitutional rights to freedom of speech or expression at the schoolhouse

gate.” Id. However, “school officials retain some authority consistent with fundamental

constitutional safeguards to prescribe and control conduct in the schools.” Nixon v. Hardin
Richland County, Case No. 16CA71 20

Cty. Bd. of Educ., 988 F.Supp.2d 826, 833, (W.D.Tenn.2013) citing Defoe ex rel. Defoe

v. Spiva, 625 F.3d 324, 331 (6th Cir.2010). “The constitutional rights of students in public

school are not automatically coextensive with the rights of adults in other settings, and

the Constitution does not compel school officials to surrender control of the American

public school system to public school students.” Id.

{¶54} In Tinker, a group of high school students decided to wear black armbands

to protest the Vietnam War. School officials learned of the plan and adopted a policy

prohibiting students from wearing armbands. Morse v. Frederick, 551 U.S. 393, 403, 127

S.Ct. 2618, 168 L.Ed.2d 290 (2007) citing Tinker at 504. The students wore the armbands

to school and the school suspended the students. The students sued arguing their First

Amendment rights were violated and the Supreme Court agreed. Id.

{¶55} Tinker provided the standard for evaluating whether the First Amendment

protects a student’s speech. Bell v. Itawamba Cty. School Bd., 799 F.3d 379, 390 (5th

Cir.2015). The Court held that student expression may not be suppressed unless school

officials reasonably conclude that it will “materially and substantially disrupt the work and

discipline of the school.” Tinker at 513.

{¶56} The United States Supreme Court has outlined four types of student speech

that schools may restrict, each governed by its own lead case: “(1) vulgar, lewd, obscene,

and plainly offensive speech is governed by [Bethel Sch. Dist. No. 403 v.] Fraser, [478

U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)]; (2) school-sponsored speech is

governed by Hazelwood [School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98

L.Ed.2d 592 (1988)];” (3) “speech promoting illegal drug use” is governed by Morse v.

Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007); and (4) “speech that
Richland County, Case No. 16CA71 21

falls into [none] of these categories' is governed by Tinker.” C.R. v. Eugene School Dist.

4J, 835 F.3d 1142, 1148-1149 (9th Cir.2016) quoting Wynar v. Douglas Cty. Sch. Dist.,

728 F.3d 1062, 1067 (9th Cir. 2013) (internal citations and quotation marks omitted).

These cases, however, speak only to the school’s ability to regulate a student’s on-

campus speech.

School Regulation of Off-Campus Speech

{¶57} The students in this matter created the message group outside of school

and without school resources. The issue raised by Mother is whether the school has

authority to regulate off-campus speech. Neither the United States Supreme Court, the

U.S. Sixth Circuit Court of Appeals, nor the Ohio Supreme Court have ruled on the issue

whether schools may regulate off-campus online speech by students in light of Tinker and

its progeny. Nixon v. Hardin Cty. Bd. of Educ., 988 F.Supp.2d 826, 836 (W.D.Tenn.2013)

citing Yoder v. Univ. of Louisville, 526 Fed.Appx. 537, 545 (6th Cir.2013) (noting that

neither the Supreme Court nor the Sixth Circuit have ruled on the subject), cert. denied,

––– U.S. ––––, 134 S.Ct. 790, 187 L.Ed.2d 594 (2013).

{¶58} In making its decision to determine whether the school violated Student’s

First Amendment rights in the present case, the trial court relied on a decision from the

U.S. Fifth Circuit Court of Appeals, Bell v. Itawamba Cty. School Bd., 799 F.3d 379 (5th

Cir.2015). In Bell, a high school student (off-campus and without using any school

resources) posted a rap recording containing violent and threatening language against

two high school teachers/coaches on Facebook and YouTube. Both the Facebook and

YouTube accounts were publicly accessible. Id. at 382. The school interpreted the

language as threatening, harassing, and intimidating the teachers. The school took
Richland County, Case No. 16CA71 22

disciplinary action against Bell. Bell brought action against the school, claiming the

school’s actions violated his First Amendment rights. Id.

{¶59} After examining Tinker and its progeny, the Fifth Circuit found Tinker

governs the analysis “when a student intentionally directs at the school community

speech reasonably understood by school officials to threaten, harass, and intimidate a

teacher, even when such speech originated, and was disseminated, off-campus without

the use of school resources.” Id. at 396.

{¶60} The U.S. Ninth Circuit Court of Appeals has twice considered whether

schools may regulate students’ off-campus speech. C.R. v. Eugene School Dist. 4J,

supra, at 1149. In LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir.2001), the court found

a poem written by a high school student from the perspective of a school shooter was

subject to the school’s regulation and the school did not violate the student’s free speech

rights when it expelled him based on the poem’s violent content. Id. at 992. In Wynar v.

Douglas Cty. Sch. Dist., 728 F.3d 1062 (9th Cir. 2013), the student was expelled for a

series of messages sent through MySpace threatening to commit a school shooting. The

court held the school did not violate the student’s First Amendment rights when it

suspended him because “when faced with an identifiable threat of school violence,

schools may take disciplinary action in response to off-campus speech * * *.” Id. at 1069.

{¶61} The U.S. Fourth Circuit Court of Appeals applied a “nexus” test, asking

whether a student’s off-campus speech was tied closely enough to the school to permit

its regulation. C.R. v. Eugene School Dist. 4J, supra, at 1149 citing Kowalski v. Berkeley

Cty. Schools, 652 F.3d 565, 573 (4th Cir.2011). In S.J.W. v. Lee's Summit R–7 School

District, 696 F.3d 771 (8th Cir. 2012), the Eighth Circuit applied a test asking whether it
Richland County, Case No. 16CA71 23

was “reasonably foreseeable” that off-campus speech would reach the school. C.R. v.

Eugene School Dist. 4J, supra, at 1149 citing S.J.W., supra, at 777.

{¶62} The Ninth Circuit found that “[w]hatever the legal test ultimately applied,

courts consistently engage in a circumstance-specific inquiry to determine whether a

school permissibly can discipline a student for off-campus speech.” C.R. v. Eugene

School Dist. 4J, supra, at 1150.

{¶63} If it is determined that a student’s off-campus speech was susceptible to

regulation by the school, the court is to apply Tinker to evaluate the constitutionality of the

school’s imposition of discipline. Id.; Bell, supra, at 396-397. Tinker permits schools to

restrict speech that “might reasonably have led school authorities to forecast substantial

disruption of or material interference with school activities” or collides with the rights of

others. Tinker, supra, at 513-514.

The School Had the Authority to Discipline Student for His Off-Campus Speech

{¶64} Mother contends the school did not have authority to discipline Student for

his participation in the message group and creation of the binder. The message group

was password-protected and did not contain any direct references or threatening

language about a specific person or school community. Mother does not dispute the

binder and message group contained references to the Columbine shootings, sexual

language, and racial epithets. The content of the message group, however, was private

among the members and the members never intended to convey the content to the school

community.

{¶65} The trial court found Student and the other participating students may not

have intended the binder and the contents of the message group to reach the school
Richland County, Case No. 16CA71 24

community, but Student’s private conversations reached the school community on

October 9, 2015. The trial court stated:

Student participants in the “KKK” chatroom extended their so-called “private

conversation,” one that glorified school violence, into the school when they:

1) wrote “The Klebold Surprise” and “Dylan Harris” on the cover of a

notebook at school and left it in the stairwell to be discovered; and 2)

communicated with each other on their phones within the school and during

school hours, warning the recipient(s) not to tell school officials about the

chatroom.

(Judgment Entry, Sept. 15, 2016). The trial court found the student’s text warnings were

an attempt to obstruct discovery of the message group by school officials. Further relevant

to the trial court’s determination that the binder and the message group impacted the

school community was that the school received a bomb threat three days before the

binder was discovered.

{¶66} Under a circumstance-specific inquiry, nexus test, or reasonable

foreseeability test, we find the trial court did not abuse its discretion in finding the school

had the authority to regulate Student’s off-campus speech. Student was a participant in

the creation of a binder that the students labeled “Klebold Surprise,” a direct reference to

the Columbine shootings. A teacher found the binder in the stairwell of the school building

while school was in session. The reference to the Columbine shootings, three days after

a bomb threat, caused the teacher to feel panic and instigated a school investigation to

determine whether there was another threat of violence in the school. During the

investigation, the Dean of Students discovered Student’s participation in the “Klebold
Richland County, Case No. 16CA71 25

Kuck Krew” message group through text messages sent by a student during the school

day. The text message warned the members that the school knew about the students’

interest in the Columbine shootings. While the evidence does not show the content of the

message group was specifically directed at a teacher, student, or school community, the

Dean of Students testified as to the contents of the message group:

Officer Kotterman later said it was a year’s worth of material of hate speech,

particularly against black – the black race. He – it was sexual in nature,

aggressive sexual in nature, talking about school shootings, kind of

glorifying school shootings. A lot of hate speech, like I said. It showed

students with access to firearms. It showed pictures of stabbing weapons.

In particular there were two videos that were – that I saw that were

disturbing. There was one of a student with a loaded rifle putting it up by his

mouth and then unloading the rifle to where the ammunition was shooting

out. There was a second video of a student pulling a – he was in downtown

Mansfield and he was in a car by himself and he pulled a Glock handgun

out of his pocket, and as the kids were going down and using the kick (sic)

site, you know, comments like time to kill niggers or niggers are going to

die.

(Tr. 26-27).

{¶67} We agree with the trial court’s determination the school had the authority to

regulate Student’s off-campus speech. The binder was found at school and the discovery

of the binder led to the discovery of the message group. The binder and the message

group, of which Student was a participant, referenced the Columbine shootings and other
Richland County, Case No. 16CA71 26

violent acts. The message group demonstrated the students had access to weapons. It

was not an abuse of discretion to find the off-campus speech in this case had a connection

with the school to permit administrative discipline.

Student’s Expulsion Was Permissible Under Tinker

{¶68} Tinker permits schools to restrict speech that “might reasonably have led

school authorities to forecast substantial disruption of or material interference with school

activities” or collides with the rights of other students to be secure and let alone. Tinker,

393 U.S. at 513-514; C.R. v. Eugene School Dist. 4J, 835 F.3d at 1152; Wynar, 728 F.3d

at 1070.

{¶69} The trial court found the discovery of the binder with the label “Klebold

Surprise” and the time and resources expended in its investigation was sufficient

disruption to curricular activities to justify the suspension and expulsion of Student. A

teacher found the binder in the school stairwell, causing her panic. The teacher, with

another teacher, showed the Dean of Students the binder, which resulted in an

investigation. The investigation into the binder led to the discovery of the message group.

The investigation into the message group further disrupted curricular activities. The Dean

of Students, Principal, two other school administrators, and four law enforcement officers

were involved interviewing multiple students, gathering information, and calling the

student’s parents. The investigation started in the late morning on October 9, 2015 and it

was not until after 3:00 pm before the last student left.

{¶70} The trial court further found the contents of the binder and the message

group reasonably led the school administration to forecast substantial disruption or

material interference with school activities. The Principal testified he considered the
Richland County, Case No. 16CA71 27

speech to be “a growing threat, a concern to our students. * * * [Student] admitted to being

an active participant in a group that we felt threatened our students.” (Tr. 63). The school

discovered the binder and the content of the message group at a time when the school

was already investigating a threat of school violence. After October 9, 2015, the school

received three more threats of violence requiring evacuation.

{¶71} The Ohio Supreme Court recently addressed the balance between the

student’s expectation of privacy and the need to protect public-school students from

physical harm in State v. Polk, -- Ohio St.3d --, 2017-Ohio-2735, -- N.E.3d --. The Ohio

Supreme Court held a student’s Fourth Amendment right was not violated by the school’s

protocol requiring searches of unattended book bags – to determine ownership and

whether the contents are dangerous – because it furthers the compelling governmental

interest in protecting students from physical harm. Id. at ¶ 2. The Court stated:

Schools have an obligation to keep their students safe. Earls, 536 U.S. at

830, 122 S.Ct. 2559, 153 L.Ed.2d 735. “Columbine, Virginia Tech

University, and now Sandy Hook underscore a fundamental policy change

that has taken place in our schools. We now pursue a new fundamental

value in our schools: security.” Demitchell, Locked Down & Armed: Security

Responses to Violence in Our Schools, 13 Conn.Pub.Int.L.J. 275, 281

(2014). The United States Department of Homeland Security's “See

Something Say Something” website warns that persons should be

suspicious of “abandoned” items like luggage. See

http://www.nationalterroralert.com/suspicious-activity/ (accessed Apr. 17,

2017). Because of “the perceived crisis concerning violence and drug use
Richland County, Case No. 16CA71 28

in the schools, * * * school officials may be remiss if they do not find and

seize objects which might pose a threat to the well being of other students

or school officials.” (Emphasis sic.) Ferraraccio, Metal Detectors in the

Public Schools: Fourth Amendment Concerns, 28 J.L. & Educ. 209, 214

(1999).

Id. at ¶ 25.

{¶72} In this case, we find the school could discipline Student for his off-campus

speech. The school’s emergency removal, suspension, and expulsion was permissible

under Tinker. We find the school did not violate Student’s First Amendment right to free

speech.

CONCLUSION

{¶73} The sole Assignment of Error of Mother is overruled.

{¶74} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Baldwin, J. and

Wise, Earle, J., concur.