ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
J. ROBERT KINKLE RAY M. DRULEY
Hall, Partenheimer & Kinkle Fort Branch, Indiana
Princeton, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA SCHOOL BOARDS
ASSOCIATION:
JULIE M. SLAVENS
Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA ASSOCIATION OF PUBLIC
SCHOOL SUPERINTENDENTS AND
INDIANA ASSOCIATION OF SCHOOL
PRINCIPALS:
DAVID R. DAY
Johnson, Smith, Pence & Heath LLP
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
SOUTH GIBSON SCHOOL BOARD, )
)
Appellant-Defendant, ) Supreme Court Cause Number
) 26S01-0009-CV-530
v. )
)
TRENT SOLLMAN, DONALD SOLLMAN ) Court of Appeals Cause Number
and MARILYN SOLLMAN ) 26A01-9906-CV-222
)
Appellees-Plaintiffs. )
APPEAL FROM THE GIBSON SUPERIOR COURT
The Honorable Earl G. Penrod, Judge
Cause No. 26D01-9903-MI-0004
ON PETITION TO TRANSFER
May 24, 2002
RUCKER, Justice
Case Summary
Gibson Southern High School has a zero-tolerance drug policy. In
essence, any student found in possession of drugs is expelled from school.
When a small amount of marijuana was found in the truck of junior student
Trent Sollman with only three days left in the fall semester, he was not
only expelled from school for the balance of the year, but also he was
denied credit for all course work previously completed that semester. On
review, the trial court determined that the policy of summarily denying
credit to a student suspended and later expelled without regard to whether
the student had completed sufficient course work to earn a passing grade
prior to the suspension was arbitrary, capricious, and an abuse of
discretion. The Court of Appeals agreed. South Gibson Sch. Bd. v.
Sollman, 728 N.E.2d 909, 914 (Ind. Ct. App. 2000). Concluding that
insufficient deference was given to the school’s disciplinary decision, we
grant transfer and reverse in part the judgment of the trial court.
Facts and Procedural History
Student discipline rules for the South Gibson School Corporation
proscribe certain conduct including the possession of marijuana.[1] For
several years there has been in place a zero-tolerance policy concerning
drugs, the application of which results in the “maximum expulsion” allowed
by law. R. at 202. The policy has been consistently applied at Gibson
Southern High School as well as other schools in the South Gibson School
Corporation. According to the school superintendent, after reviewing case
files he found that for the twenty-year history that he has served as
superintendent, “[w]hen drugs were the offense, the recommendation from the
high school principal was expulsion and in each and every case it was
expulsion.” R. at 199.
Although the exact date is not clear, the record shows that Sollman
attended a general assembly at the school that included grades nine through
twelve. R. at 162. Teachers were there; the Gibson County Prosecutor was
present as well as members of the Gibson County Sheriff’s Department. Drug-
sniffing dogs were brought in, and there was a demonstration of how the
dogs could indeed locate hidden marijuana. Underscoring the school’s zero-
tolerance policy, the superintendent advised the students “[i]f we find it
on your person, in your locker, or in your vehicle, then we are going to –
we will consider that you will be in possession and it will be dealt with
[as] an expulsion.” R. at 162.
On December 17, 1998, a drug-sniffing dog found a small amount of
marijuana in Sollman’s truck that was parked in a lot on Gibson Southern
High School property. There were three days left in the fall semester.
The Gibson Southern principal suspended Sollman effective immediately. He
also recommended to the superintendent that Sollman be expelled and that an
expulsion examiner[2] be appointed to conduct the necessary expulsion
proceedings. An expulsion examiner was appointed accordingly, and he
convened a meeting at which Sollman, his parents, and legal counsel were
present. After evidence was presented and arguments heard, the examiner
issued a written summary of the evidence. He concluded by expelling
Sollman from school. Specifically, the expulsion examiner determined
“Trent Sollman will not be allowed to complete the first semester, the
second semester, nor summer school of the 1998 – 99 school year. He will
be allowed to enter GSHS again for the fall semester of the 1999-2000
school year.” R. at 39.
Sollman appealed to the South Gibson School Board. After a hearing,
the School Board returned the matter to the expulsion examiner for further
proceedings.[3] Subsequently, the expulsion examiner issued a revised
report again determining that Sollman would be expelled until the fall
semester of the 1999-2000 school year. This determination also was
appealed to the School Board, which upheld the examiner’s determination.
On March 19, 1999, Sollman along with his parents filed a petition for
judicial review. By that time, grades for the fall semester of 1998 had
been posted, and Sollman received no grades or credits for the period. As
a result, the petition for review not only challenged the expulsion but
also the denial of grades and credits.
After conducting a hearing, the trial court determined that the
ordered expulsion must end on the last day of the spring semester and could
not extend through the summer session. As for the denial of grades and
credits, finding the School Board’s action arbitrary and capricious, the
trial court ordered that Sollman was to be given zeros for all fall
semester course work that he missed after the expulsion but was then to be
given credit for those courses in which he had a passing grade after taking
the zeros into account. The School Board appealed, and the Court of
Appeals affirmed. Having previously granted transfer, we now affirm in
part and reverse in part the judgment of the trial court.
Discussion
The Court of Appeals agreed with the trial court that Sollman could
not be expelled beyond the last day of the spring semester. According to
the Court of Appeals, the statute defining “school year,” Indiana Code
section 20-10.1-2-1(a), and the statute limiting the expulsion period for
misconduct in the fall semester to the “remainder of the school year,”
Indiana Code section 20-8.1-5.1-14(a), were not intended to include summer
school within the period of expulsion that may be imposed for conduct
occurring in the fall semester. Sollman, 728 N.E.2d at 918. We agree and
summarily affirm the Court of Appeals’ opinion on this issue. See Ind.
Appellate Rule 58(A)(2). We disagree, however, that the School Board acted
arbitrarily and capriciously in denying Sollman credit for the fall
semester.
The record shows that before the trial court Sollman took the position
that “[n]othing in the statute permits the school corporation to take away
credits already earned . . . . Depriving Trent Sollman of his first
semester credits is a clear violation of due process and clearly an
arbitrary and capricious act.” R. at 66. He cited no authority for the
latter assertion. In agreeing that the school’s policy of denying credit
was indeed arbitrary and capricious, the trial court acknowledged that the
“action taken against Trent was consistent with the action taken in similar
cases. That is, if a student is removed from school before the end of the
semester, credit for that semester is not granted.” R. at 119. However,
the trial court determined that the policy was flawed because it did not
distinguish between those students who earned passing grades in spite of
missed assignments and those who did not. R. at 124. In essence, the
trial court determined that precisely because every student is treated the
same, the School Board’s policy is arbitrary and capricious.
A school board is an administrative body. See I.C. § 20-4-1-3(5).
And as with any administrative body, judicial review of its decisions is
narrow. An agency decision will not be overturned unless it is purely
arbitrary or an error of law has been made. Ind. State Bd. of Pub. Welfare
v. Tioga Pines Living Ctr., Inc., 622 N.E.2d 935, 939 (Ind. 1993); see also
I.C. § 4-21.5-5-14(d).
We understand the sentiment implicit in the trial court’s order and
expressed by some commentators concerning the harshness of so-called zero-
tolerance policies.[4] However, it is not the role of the courts “to set
aside decisions of school administrators which the court may view as
lacking a basis in wisdom or compassion. . . . The system of public
education that has evolved in this Nation relies necessarily upon the
discretion and judgment of school administrators and school board members.
. . .” Wood v. Strickland, 420 U.S. 308, 326 (1975). The question in this
case is whether the decision of the School Board was arbitrary and
capricious.
We have said “[a]n action of an administrative agency is arbitrary and
capricious only where there is no reasonable basis for the action.” Ind.
Civil Rights Comm’n v. Delaware County Cir. Ct., 668 N.E.2d 1219, 1221
(Ind. 1996); compare City of Indianapolis v. Woods, 703 N.E.2d 1087, 1091
(Ind. Ct. App. 1998) (“An arbitrary and capricious decision is one which is
patently unreasonable. It is made without consideration of the facts and
in total disregard of the circumstances and lacks any basis which might
lead a reasonable person to the same conclusion.”). The burden of proving
that the administrative action of the school was arbitrary or capricious
falls on the party attempting to upset the administrative decision.
Forrest v. Sch. City of Hobart, 498 N.E.2d 14, 17 (Ind. Ct. App. 1986).
Indiana Code section 20-8.1-5.1-3 provides:
(a) Student supervision and the desirable behavior of students in
carrying out school purposes is the responsibility of a school
corporation and the students of a school corporation.
(b) In all matters relating to the discipline and conduct of students,
school corporation personnel stand in the relation of parents and
guardians to the students of the school corporation. Therefore,
school corporation personnel have the right, subject to this chapter,
to take any disciplinary action necessary to promote student conduct
that conforms with an orderly and effective educational system.
(c) Students must follow responsible directions of school personnel in
all educational settings and refrain from disruptive behavior that
interferes with the educational environment.
I.C. § 20-8.1-5.1-3 (emphasis added). In turn, Indiana Code section 20-8.1-
1-10(a)(2) defines expulsion in relevant part as “a disciplinary or other
action whereby a student . . . is separated from school attendance for the
balance of the current semester or current year unless a student is
permitted to complete required examinations in order to receive credit for
courses taken in the current semester or current year[.]” In this case,
Sollman was not allowed to complete required examinations “in order to
receive credit” for the courses he had taken during the semester. He was
thus expelled as a disciplinary sanction within the meaning of the statute.
And although we do not agree with the view that the statute mandates a
loss of credit upon expulsion,[5] we do acknowledge that the School Board
has the discretion to impose such a sanction.
In order to promote student conduct which conforms with an orderly and
effective educational system, a school board could understandably reach the
conclusion that the deterrent of expulsion, uncoupled from a loss of
credit, may not be a deterrent sufficient enough for a student to avoid
being expelled. If a student knows for example that the ultimate
consequence of violating school policy is expulsion only, then the student
may assume the risk of getting expelled where he has already accumulated
sufficient grades to pass the semester. In that instance, the disciplinary
sanction for misbehavior is appreciably lessened, leaving only a penalty
students might consider an incentive to misbehave. We also note that a
consistently applied policy weighs against the notion that it is arbitrary.
Compare Ind. High Sch. Athletic Ass’n, Inc. v. Carlberg, 694 N.E.2d 222,
233 (Ind. 1997) (finding no arbitrariness or capriciousness in part because
of consistent application of the athletic association’s interpretation of
transfer rule) with Crane v. Ind. High Sch. Athletic Ass’n, Inc., 975 F.2d
1315, 1325 (7th Cir. 1992) (finding arbitrariness and capriciousness under
same rule partly because guidelines were inconsistently applied). In this
case, the record shows that all students are treated the same under the
school’s policy regardless of when the misconduct occurred or the status of
the students’ academic standing.
Deterring disciplinary problems in its school system is the basis upon
which the School Board has adopted its expulsion/no credit zero-tolerance
policy regarding drugs. Whether the School Board should re-examine its
policy is not a matter for the courts to decide. As the Court of Appeals
has observed, “School officials, with their expertise in such matters, are
in the best position to determine in their discretion what actions are
reasonably necessary to carry out school purposes . . . .” Bd. of Sch.
Trustees v. Barnell, 678 N.E.2d 799, 805 (Ind. Ct. App. 1997). We agree.
As applied here, we cannot say there was “no reasonable basis” for the
School Board’s action. Ind. Civil Rights Comm’n, 668 N.E.2d at 1221.
Accordingly, Sollman failed to carry his burden of demonstrating that the
School Board acted arbitrarily and capriciously in depriving him of his
fall semester credits. On this issue, the judgment of the trial court is
reversed.
Conclusion
We reverse that portion of the trial court’s judgment ordering the
School Board to award Sollman zeros for the fall semester course work that
he missed after the expulsion and to give Sollman credit for those courses
in which he had a passing grade after the zeros are taken into account. In
all other respects, the judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] The full text of the rules is not a part of the record. However,
the record does reveal that Sollman was officially charged with violation
of “SGSC Policy Section VI-F-3-a-(1)(2)(10)(11)(13)(14)(16).” R. at 19.
According to Amicus Indiana School Boards Association, the text of the
relevant rules is:
(10) Knowingly possessing, using, transmitting, or being under the
influence of any Controlled Substance as defined by Indiana Statutes,
including, but not limited to, a narcotic drug, hallucinogenic drug,
amphetamine, barbiturate, or marijuana; an alcoholic beverage; or
intoxicant of any kind; (a) on the school grounds during and
immediately before or immediately after school hours; (b) on the
school grounds at any time when the school is being used by any school
group; or (c) off the school grounds at a school activity, function,
or event.
(11) Violation of any criminal law.
. . .
(13) Engaging in any activity forbidden by the laws of the State of
Indiana which constitutes an interference with school purposes.
(14) Failing to comply with tobacco restrictions.
Brief of the Amicus Curiae to the Court of Appeals, Indiana School Boards
Association at 4. The parties to this appeal do not contest Amicus’
representation.
[2] See Ind. Code § 20-8.1-5.1-13(a) (authorizing school
superintendent to conduct an expulsion meeting or appoint a third party to
conduct the meeting).
[3] Specifically, in his factual recitation the expulsion examiner
declared, “Whether Trent knew the marijuana was there or not, he still is
responsible for the contents of his vehicle . . . .” R. at 38. The School
Board directed that the matter should be returned to the examiner to
determine whether the element of knowledge was proved, and if so, the facts
the examiner relied upon to so find. R. at 34.
[4] Although it is difficult to find a written definition of the term
“zero-tolerance,” since its inception in federal drug policy of the 1980’s,
it “has been intended primarily as a method of sending a message that
certain behaviors will not be tolerated, by punishing all offenses
severely, no matter how minor.” Russell J. Skiba, Ind. Educ. Policy Ctr.,
Zero Tolerance, Zero Evidence: An Analysis of School Disciplinary Practice
2 (Aug. 2000) (observing there is little evidence that the strategies
typically associated with zero tolerance contribute to improved student
behavior or overall school safety).
[5] See Brief of the Amicus Curiae to the Court of Appeals, Indiana
School Boards Association at 3 (arguing “[t]he South Gibson School Board by
statute had to deny Trent Sollman his first semester credits.”) (emphasis
added).