G.S. v. West Shore School District

28 Pa. D. & C.4th 465, 1993 Pa. Dist. & Cnty. Dec. LEXIS 15
CourtPennsylvania Court of Common Pleas, Cumberland County
DecidedOctober 29, 1993
Docketno. 49 Equity 1993
StatusPublished

This text of 28 Pa. D. & C.4th 465 (G.S. v. West Shore School District) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Cumberland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G.S. v. West Shore School District, 28 Pa. D. & C.4th 465, 1993 Pa. Dist. & Cnty. Dec. LEXIS 15 (Pa. Super. Ct. 1993).

Opinion

HESS, J,

This case is before the court on the request of the plaintiffs for a preliminary injunction to set aside the action of the West Shore School District in expelling the minor plaintiff, W.S., from the seventh grade at Lemoyne Middle School. The case is about a child who brought to school an extremely convincing replica of a revolver-type firearm complete with bullets. Though secretive with the weapon, he proceeded to either show the replica weapon to other students or indicate verbally that he had it in his possession. His stated purpose was to “blow a hole” in the head of a fellow student with whom he had had an altercation in the recent past.

This is not a case in which a student possessed an over-the-counter tablet and has been expelled by the school board for the possession of a controlled substance. See Nestlerode v. West Shore School District, 40 Cumberland L.J. 91 (1989), wherein we reinstated a student for the possession of No-Doz when the student had been charged and suspended for the possession of a controlled substance. Nor is this a case where the child in question brought a look-alike six-shooter to school so that he could be more convincing in the lead role in “Oklahoma.” Were the expulsion in this case grounded solely on the alleged possession, by the student, of “a weapon,” then we would, no doubt, be required to grant the motion for preliminary injunction and send W. back to school. A replica firearm is not a weapon.

From the beginning of these disciplinary proceedings, the school authorities have understood that the firearm was a replica and have never claimed otherwise. Ad[467]*467mittedly, the written notices of the expulsion hearing made reference to a violation of the “school district’s weapons policy” and alleged that W. had been in possession of and displayed “a gun and ammunition.” At least one of the notices, however, was supplemented by statements of proposed witnesses of the school board which made clear the fact that the proposed disciplinary action was based on the student’s possession of what appeared to be a firearm during the course of which he made alarming comments about doing bodily harm to a fellow student.

A hearing was ultimately held before four members of the school board authorized to take testimony and make findings concerning the incident. Despite the efforts of petitioners’ counsel to delimit the issues at the outset of the hearing, the thrust of the accusation was clear. At no time did anyone contend that W. had possessed a real firearm or that he had actually attempted to cause bodily injury to anyone. Instead, the board committee concluded that the child had threatened another student by, among other things, drawing attention to a replica gun and bullets which he had brought to school on September 16, 1993. The board went on to conclude that these actions violated policies of the school district permitting expulsion for “acts which constitute a threat to the health, safety, and welfare of students and staff members” and/or “acts which are in violation of the state penal code.” In addition, the board found that there had been violations of other provisions which could lead to the expulsion of students from schools in the West Shore School District. Specifically mentioned were “threatening or assuming a threatening attitude towards students or staff members,” “possession/use of weapons,” and “any single action which creates severe danger to other persons or causes severe disruption to the educational process....”

[468]*468At the regular meeting of the school board on October 21, 1993, the board voted nine to zero to adopt the recommendation of the board committee and approve the petitioner’s temporary expulsion from the district. Pursuant to the adjudication, W. may be readmitted to the district at the commencement of the 1994-95 school year provided that he has made satisfactory academic progress in the schoolwork which he must do out of school and that he otherwise demonstrate a positive attitude. This action in equity has been fried seeking to set aside the action of the school board thereby permitting W. to return to school.

As we have observed in the past, it is not our function to second guess school administrators. The court is not to act as a “super school board” with knowledge superior to that of public school administrators, Commonwealth v. Hall, 309 Pa. Super. 407, 455 A.2d 674 (1983), and cannot, absent a gross abuse of discretion, substitute its own judgment for that of school districts. Hall, supra at 412, 455 A.2d at 677. On the other hand, there is a duty on our part to intervene if we conclude that due process has been abridged by governmental authorities no matter how well intentioned. In this regard, one method by which a student may be restored to school and a suspension vacated is by the filing of a case in equity and the procuring of an injunction. Oravetz v. West Allegheny School District, 74 D.&.C.2d 733 (1975). Despite this remedy, the burden of proof to establish the requisite elements, particularly for a preliminary injunction, remains, of course, with the plaintiff. In order to be entitled to injunctive relief, he must establish, at a minimum, that: 1) a clear right to the relief requested exists; 2) imminent and irreparable injury incapable of compensation by the award of damages will occur if the injunction is not [469]*469granted; and 3) greater injury will result from the court’s denial of the injunction than from the court’s granting it. See Bell v. Thornburgh, 491 Pa. 263, 420 A.2d 443 (1980); Riverside School Board v. Kobeski, 146 Pa. Commw. 106, 604 A.2d 1173 (1992).

With respect to a comparison of the injuries, the plaintiff argues that any detriment to W. is far greater than that to the school district were we to fail to restore him to the classroom. The school district, on the other hand, argues that W.’s return to school will “send the message to the entire student body that threats and intimidations of violence are acceptable in the district.” Because we believe the plaintiffs’ request for preliminary injunction fails on other grounds, we need not resolve this particular issue in order to make a ruling.

W. argues that our failure to restore him to the classroom results in imminent and irreparable injury because he is in his formative years and his removal from the classroom unfairly stigmatizes him. The school board, however, observes that he is currently enrolled in an educational program at the Harrisburg Institute of Psychiatry and that the district has and will continue to make every effort to assure that he receives all assignments and the necessary materials to complete them. Moreover, the district has acknowledged that it is legally required to continue to provide for the child’s education. As the board notes, Commonwealth regulations provide that the parents of an expelled student have 30 days to find an alternate placement for the student in another school, through tutorial or correspondence study, or through another educational program approved by the district superintendent. If such placement is not made, the district is legally required to provide for the student’s education. 22 Pa. Code 12.6(e). We have no reason to believe that if W. ’s parents are unable to arrange

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Related

Goss v. Lopez
419 U.S. 565 (Supreme Court, 1975)
Riverside School Board v. Kobeski
604 A.2d 1173 (Commonwealth Court of Pennsylvania, 1992)
Commonwealth v. Hall
455 A.2d 674 (Superior Court of Pennsylvania, 1983)
Bell v. Thornburgh
420 A.2d 443 (Supreme Court of Pennsylvania, 1980)
In re the Tax Assessment of Real Estate of Greater Erie Economic Development Corp.
433 A.2d 568 (Commonwealth Court of Pennsylvania, 1981)
Porter v. Board of School Directors
445 A.2d 1386 (Commonwealth Court of Pennsylvania, 1982)

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28 Pa. D. & C.4th 465, 1993 Pa. Dist. & Cnty. Dec. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gs-v-west-shore-school-district-pactcomplcumber-1993.