Spencer Ex Rel. Spencer v. Omaha Public School District

566 N.W.2d 757, 252 Neb. 750, 1997 Neb. LEXIS 165
CourtNebraska Supreme Court
DecidedJuly 3, 1997
DocketS-95-119
StatusPublished
Cited by19 cases

This text of 566 N.W.2d 757 (Spencer Ex Rel. Spencer v. Omaha Public School District) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spencer Ex Rel. Spencer v. Omaha Public School District, 566 N.W.2d 757, 252 Neb. 750, 1997 Neb. LEXIS 165 (Neb. 1997).

Opinions

Wright, J.

The Omaha Public School District (OPS), the board of education for the city of Omaha, the principal of McMillan Junior High School, and the director of student personnel services for OPS (collectively referred to as the “school district”) appeal the decision of the district court that reduced the expulsion of Blake R. Spencer from two semesters to one semester.

SCOPE OF REVIEW

Appeals from the district court under the Student Discipline Act are governed by the Administrative Procedure Act. Kolesnick v. Omaha Pub. Sch. Dist., 251 Neb. 575, 558 N.W.2d 807 (1997).

On an appeal under the Administrative Procedure Act, an appellate court reviews the judgment of the district court for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings. Rainbolt v. State, 250 Neb. 567, 550 N.W.2d 341 (1996).

When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996); Goolsby v. Anderson, 250 Neb. 306, 549 N.W.2d 153 (1996).

FACTS

On Friday, September 23, 1994, Spencer, a student at McMillan Junior High School in Omaha, Nebraska, rode home in a school van. In his possession, he had a metal fork which he. had obtained from the cafeteria earlier that day. During the ride, [752]*752Spencer bent the metal fork back and forth. He then placed the fork against the neck of the student sitting in front of him, Michael Keefer.

On Monday, September 26, 1994, the school nurse examined Keefer. The nurse noted a Vi-inch red mark on the back of his neck. Based on the nurse’s observation of the red mark, the assistant principal opined that Spencer was in violation of § 1(b)(2) of the OPS Student Code of Conduct and recommended a one-semester expulsion. Subsequently, the assistant principal amended the allegation to a § 1(b)(1) violation of the Student Code of Conduct, intentionally or knowingly causing personal injury to another student, which mandates expulsion for the remainder of the semester and the following semester.

Spencer’s parents requested a review of the assistant principal’s decision, and on October 5, 1994, Spencer and his parents met with a hearing officer, Carol Grossman. Upon review of the allegations by Keefer, the school nurse’s observations, and Spencer’s admission that he did in fact touch the fork handle to Keefer’s neck, the hearing officer upheld the assistant principal’s decision to expel Spencer.

Spencer appealed the hearing officer’s determination regarding the expulsion to the school board pursuant to the Student Discipline Act, Neb. Rev. Stat. §§ 79-4,169 to 79-4,205.02 (Reissue 1994) (now codified at Neb. Rev. Stat. §§ 79-254 to 79-294 (Reissue 1996)). The school board made no findings of fact, but voted to uphold the assistant principal’s decision to expel Spencer.

Spencer appealed the school board’s action to the district court for Douglas County, claiming, inter alia, that § 1(b)(1) of the Student Code of Conduct exceeded the authority granted to OPS under the Student Discipline Act, that there was insufficient evidence to support a two-semester expulsion, and that the punishment so grossly outweighed the offense as to violate Spencer’s substantive due process rights.

The district court found that the Student Code of Conduct did not violate or exceed state law, but that the school board’s decision to expel Spencer for the remainder of the school year was excessive and violated his constitutional right to substantive due process. The district court reduced Spencer’s expulsion to one [753]*753semester. The school district has appealed from the district court’s decision, and Spencer has cross-appealed.

ASSIGNMENTS OF ERROR

The school district assigns as error that (1) the district court erred when it ruled that the expulsion of Spencer for two semesters for knowingly and intentionally causing personal injury to another student was in violation of constitutional provisions and (2) the district court erred when it ruled that the expulsion of Spencer for two semesters for knowingly and intentionally injuring another student was not supported by the evidence.

Spencer assigns as error on cross-appeal that (1) the district court erred in finding that OPS, through the Student Code of Conduct, did not exceed its authority set forth in the Student Discipline Act; (2) the district court erred in failing to rule as a matter of law that the school system’s action in expelling Spencer for a full school year was arbitrary or capricious; and (3) the district court erred in failing to rule as a matter of law that the Student Code of Conduct was based on an illegal standard.

ANALYSIS

Because it is decisive of this case, we address only whether the school board acted within the power conferred upon it by the Legislature, an issue presented in Spencer’s cross-appeal. This issue presents a question of law; thus, we reach our conclusion independent of the lower court’s ruling. See, Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996); Goolsby v. Anderson, 250 Neb. 306, 549 N.W.2d 153 (1996).

School boards are creatures of statute, and their powers are limited. They can bind the district only within the limits fixed by the Legislature. School Dist. of Waterloo v. Hutchinson, 244 Neb. 665, 508 N.W.2d 832 (1993). Any action taken by a school board must be through either an express or an implied power conferred by legislative grant. Id. As the school board is a creature of statute, its actions beyond such limitations are void. See id. An administrative agency cannot use its rulemaking power to modify, alter, or enlarge provisions of a statute which it is charged with administering. Beatrice Manor v. Department of Health, 219 Neb. 141, 362 N.W.2d 45 (1985).

[754]*754However, if a school board has acted within the power conferred upon it by the Legislature, the courts cannot question the manner in which the board has exercised its discretion in regard to a subject matter over which the board has jurisdiction, unless the action is so unreasonable and arbitrary as to amount to an abuse of discretion. School Dist. of Waterloo v. Hutchinson, supra.

Section 1(b) of the Student Code of Conduct, which was adopted by OPS for the 1994-95 school year, provides:

1. VIOLATIONS AGAINST PERSONS
b.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

J.P. v. Millard Public Schools
285 Neb. 890 (Nebraska Supreme Court, 2013)
Brunk v. Nebraska State Racing Commission
700 N.W.2d 594 (Nebraska Supreme Court, 2005)
Martin v. Nebraska Department of Correctional Services
671 N.W.2d 613 (Nebraska Supreme Court, 2003)
Capitol City Telephone, Inc. v. Nebraska Department of Revenue
650 N.W.2d 467 (Nebraska Supreme Court, 2002)
Busch Ex Rel. Knave v. Omaha Public School District
623 N.W.2d 672 (Nebraska Supreme Court, 2001)
Opinion No. (2000)
Nebraska Attorney General Reports, 2000
Opinion No. (1999)
Nebraska Attorney General Reports, 1999
Father Flanagan's Boys' Home v. Agnew
590 N.W.2d 688 (Nebraska Supreme Court, 1999)
FATHER FLANAGAN'S BOYS'HOME v. Agnew
590 N.W.2d 688 (Nebraska Supreme Court, 1999)
State Ex Rel. Fick v. Miller
584 N.W.2d 809 (Nebraska Supreme Court, 1998)
Miller v. Horton
574 N.W.2d 112 (Nebraska Supreme Court, 1998)
Norwest Corp. v. State, Dept. of Ins.
571 N.W.2d 628 (Nebraska Supreme Court, 1997)
Vinci v. NEB. DEPT. OF CORR. SERVICES
571 N.W.2d 53 (Nebraska Supreme Court, 1997)
Vinci v. Nebraska Department of Correctional Services
571 N.W.2d 53 (Nebraska Supreme Court, 1997)
Wolgamott v. Abramson
570 N.W.2d 818 (Nebraska Supreme Court, 1997)
Four R Cattle Co. v. Mullins
570 N.W.2d 813 (Nebraska Supreme Court, 1997)
Spencer Ex Rel. Spencer v. Omaha Public School District
566 N.W.2d 757 (Nebraska Supreme Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
566 N.W.2d 757, 252 Neb. 750, 1997 Neb. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-ex-rel-spencer-v-omaha-public-school-district-neb-1997.