State ex rel. Massie v. Gahanna-Jefferson Pub. Schools Bd. of Edn.

[This opinion has been published in Ohio Official Reports at 76 Ohio St.3d 584.]

THE STATE EX REL. MASSIE v. BOARD OF EDUCATION OF GAHANNA-JEFFERSON

PUBLIC SCHOOLS ET AL.

[Cite as State ex rel. Massie v. Gahanna-Jefferson Pub. Schools Bd. of Edn.,

1996-Ohio-47.]

Schools—Mandamus to compel board of education and superintendent of schools

to issue grades and credits to students with unpaid instructional fees—

Writ denied, when.

(No. 96-276—Submitted July 24, 1996—Decided October 2, 1996.)

IN MANDAMUS.

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{¶ 1} Due to a projected deficit following the defeat of school operating

levies, respondent Jack J. Schmidt, Superintendent of Gahanna-Jefferson Public

Schools, proposed that respondent Board of Education of Gahanna-Jefferson Public

Schools impose a student instructional fee. On August 10, 1995, the board adopted

Schmidt’s proposal and established a student instructional fee of twenty dollars per

student in kindergarten, thirty-five dollars per student in grades one through five,

forty dollars per student in grades six through eight, and forty-five dollars per

student in grades nine through twelve. The instructional fee is assessed up to a

maximum of three children per family and is waived for students in serious

financial need. The instructional fee is in addition to certain class-specific fees at

the high school level.

{¶ 2} The instructional fees have been used by the board to purchase

materials used in courses of instruction. The fees have not been used to purchase

administrative materials or necessary textbooks. Included in the materials

purchased by the board with the instructional fees are workbooks, notebooks,

clipboards, maps, pencils, and copy paper used to reproduce learning aids,

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workbooks, and assignments. In a letter dated September 13, 1995, Superintendent

Schmidt advised parents of Gahanna-Jefferson students that “[t]he money collected

from the students will be used to buy workbooks and other materials used within

the classroom.”

{¶ 3} Relator, John Massie, has three children, William, Samuel, and

Jessica, who are students in Gahanna-Jefferson Public Schools. The board has

withheld grades and credits for Massie’s children because he did not pay the

applicable student instructional fees for the 1995-1996 school year. Massie paid

$65 in class-specific charges for William’s twelfth grade art classes. William had

seven other classes in twelfth grade that did not have class-specific charges. Massie

also purchased sewing materials for Jessica to use in a class in lieu of being

provided the same materials by school officials. According to the Massie children,

they have not been given any other materials for classes.

{¶ 4} Massie instituted this action for a writ of mandamus to compel the

board and Schmidt to issue grades and credits to Massie’s children. We granted an

alternative writ and further granted Massie’s motion to amend the complaint to

indicate that this action is being brought in the name of the state on his relation. 75

Ohio St.3d 1424, 662 N.E.2d 26; see, also, R.C. 2731.04; State ex rel. Huntington

Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 533, 653 N.E.2d 349, 353.

After the parties filed evidence and Massie filed his merit brief, respondents failed

to file a brief. Instead, respondents filed motions to dismiss the amended complaint

and vacate the alternative writ as to the claim relating to William’s grades and

credits. Massie filed a memorandum opposing the motions, which contained

affidavits of both Massie and William. Respondents then moved to strike these

affidavits.

{¶ 5} The cause is now before this court on the merits as well as on

respondents’ motions.

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Alden & Associates Co., L.P.A., Matthew L. Alden and Erick R. Alden, for

relator.

Scott, Scriven & Wahoff, Julie C. Martin and Gregory B. Scott, for

respondents.

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Per Curiam.

Motions to Dismiss, Vacate, and Strike

{¶ 6} As a preliminary matter, respondents request that we dismiss the

complaint and vacate the alternative writ as to Massie’s claim relating to his son

William’s grades and credits. Civ.R. 17(A) requires that “[e]very action shall be

prosecuted in the name of the real party in interest.” A real party in interest is

directly benefited or injured by the outcome of the case rather than merely having

an interest in the action itself. State ex rel. Botkins v. Laws (1994), 69 Ohio St.3d

383, 387, 632 N.E.2d 897, 902.

{¶ 7} Respondents assert that Massie is not a real party in interest as to

William’s grades and credits because his statutory duty to support William ceased

when William became eighteen. The evidence presented established that William

is an eighteen-year-old high school student. Respondents rely on R.C. 2151.03,

which defines “neglected child,” and R.C. 2151.011(B)(1)(a), which defines

“child.” Respondents’ reliance is misplaced. The applicable provision is R.C.

3103.03(B), which provides that “the parental duty of support to children, including

the duty of a parent to pay support pursuant to a child support order, shall continue

beyond the age of majority as long as the child continuously attends on a full-time

basis any recognized and accredited high school.” Therefore, the fact that William

had reached eighteen was not dispositive. The evidence presented pursuant to the

alternative writ indicated that William was still attending high school on a full-time

basis. Massie possessed a duty under R.C. 3103.03(B) to support William.

Furthermore, the evidence established that William’s grades are being withheld due

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to Massie’s failure to pay his student instructional fee. Based on the foregoing,

Massie is a real party in interest on his claim for the issuance of William’s grades

and credits. We overrule respondents’ motions to dismiss and vacate. Since we

need not consider the affidavits attached to Massie’s memorandum in opposition to

the motion in deciding the motion, respondents’ motion to strike these affidavits is

moot.

Mandamus; R.C. 3313.642

{¶ 8} In his first proposition of law, Massie contends that a board of

education cannot impose a fee for instruction or for consumable materials as part

of a deficit reduction plan. Massie did not pay the student instructional fees for his

three children because he believed that his children were entitled to a free public

education.

{¶ 9} The General Assembly “shall make such provisions, by taxation, or

otherwise, as, with the income arising from the school trust fund, will secure a

thorough and efficient system of common schools throughout the State.” Section

2, Article VI, Ohio Constitution. R.C. 3313.48 provides that “[t]he board of

education of each city, exempted village, local, and joint vocational school district

shall provide for the free education of the youth of school age within the district

under its jurisdiction ***.” See, also, R.C. 3313.64.

{¶ 10} However, R.C. 3313.642 provides:

“Notwithstanding the provisions of sections 3313.48 and 3313.64 of the

Revised Code, the board of education of a city, exempted village, or local school

district shall not be required to furnish, free of charge, to the pupils attending the

public schools any materials used in a course of instruction with the exception of

the necessary textbooks required to be furnished without charge pursuant to section

3329.06 of the Revised Code. The board may, however, make provision by

appropriations transferred from the general fund of the district or otherwise for

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furnishing free of charge any materials used in a course of instruction to such pupils

as it determines are in serious need of such materials. ***” (Emphasis added.)

{¶ 11} Unlike tuition, which pays the costs of instruction or teaching,

student fees charged by many educational institutions typically pay the costs of

items actually used by students, such as textbooks and supplies. See, generally, 1

Rapp, Education Law (1996) 5-115, Section 5.04[1]. According to Massie, R.C.

3313.642 does not authorize the student instructional fees charged by respondents.

“‘In construing a statute, a court’s paramount concern is the legislative intent in

enacting the statute. *** In determining legislative intent, the court first looks to

the language in the statute and the purpose to be accomplished.’” State ex rel.

Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 220,

631 N.E.2d 150, 153, quoting State v. S.R. (1992), 63 Ohio St.3d 590, 594-595, 589

N.E.2d 1319, 1323. Words used in a statute must be taken in their usual, normal or

customary meaning. R.C. 1.42; State ex rel. Solomon v. Police & Firemen’s

Disability & Pension Fund Bd. of Trustees (1995), 72 Ohio St.3d 62, 65, 647

N.E.2d 486, 489.

{¶ 12} “Materials” are tools or articles needed to make or do something.

Webster’s Third New International Dictionary (1986) 1392. “Instruction” refers to

teaching. Id. at 1172. Therefore, R.C. 3313.642 authorizes boards of education to

charge fees for all articles used in courses where students are taught, with the

exception of necessary textbooks required to be furnished under R.C. 3329.06 to

pupils attending public schools. The General Assembly enacted R.C. 3313.642 to

“relieve the undue burden placed upon boards of education because of inability to

charge for materials in the course of instruction.” Am.S.B. No. 214, Section 2, 128

Ohio Laws 286, 287 (1959).

{¶ 13} In Assn. for the Defense of the Washington Loc. School Dist. v. Kiger

(1989), 42 Ohio St.3d 116, 537 N.E.2d 1292, we granted a peremptory writ of

mandamus to compel the Superintendent and the Board of Education of the

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Washington Local School District to issue grades and credits of students which had

been withheld for failure to pay a five-dollar-per-pupil fee. The superintendent had

announced that the fees would “assist in providing paper products, copier materials,

student record keeping/test supply sheets, work sheets, and other necessary

consumable educational supply items which directly affect all students in their

classrooms/buildings.” Id., 42 Ohio St.3d at 116-117, 537 N.E.2d at 1292. We

noted that since free public education is the general rule in Ohio, the exception

under R.C. 3313.642 should be strictly construed. Id., 42 Ohio St.3d at 118, 537

N.E.2d at 1293. After strictly construing R.C. 3313.642, we determined that the

student fees at issue were “for the costs of administrative materials, not classroom

materials.” Id., 42 Ohio St.3d at 118, 537 N.E.2d at 1293. We noted that this

conclusion was strengthened by language in the announcement that the fees were

“in addition to other laboratory, workbook, and activity fees, etc., being assessed

for science, industrial arts, art, weekly readers, etc.” Id., 42 Ohio St.3d at 118, 537

N.E.2d at 1293. Since the fees were not authorized by R.C. 3313.642, the

superintendent and board of education possessed a clear legal duty to issue grades

and credits to the parents of students who had not paid the fees. Id., 42 Ohio St.3d

at 118, 537 N.E.2d at 1293-1294.

{¶ 14} Massie claims that based on Kiger, respondents’ fees here are not

authorized by R.C. 3313.642 because all consumable supplies constitute

administrative rather than classroom materials. Massie misreads Kiger. Kiger did

not hold that consumable supplies can never constitute materials used in courses of

instruction under R.C. 3313.642. While the fees in Kiger were referred to by the

respondents therein as “consumable educational supply items which directly affect

all students,” there was no indication that these materials were actually used in

classrooms during courses. In fact, “student record keeping” sheets indicated

administrative rather than classroom materials in Kiger.

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{¶ 15} Conversely, the record in this case establishes that the instructional

fees assessed by respondents have been used to purchase classroom materials, i.e.,

materials used in courses of instruction. Similarly, although like Kiger, the

challenged fees are being charged in addition to certain class-specific fees, this does

not mandate a finding that these instructional fees are also for administrative, rather

than classroom, materials.

{¶ 16} The term “administrative” “pertains to administration, especially

management, as by managing or conducting, directing, or superintending, the

execution, application or conduct of persons or things” and particularly has the

characteristics of “executive or ministerial action.” Black’s Law Dictionary (6

Ed.1990) 45. The evidence indicates that the instructional fees established by

respondents are for classroom materials instead of administrative materials. The

treasurer of the school district stated that the fees generated less income than the

expenses he posted to categories of the State Auditor designated under the Uniform

School Accounting System as covering “instructional supplies” or “teaching aids.”

These are defined respectively as “[e]xpenditures for consumable non-food

instructional supplies used in classroom, such as paper, paste, pencils, [and] paint”

and “[e]xpenditures for items and supplies used by teachers to aid in their

instruction of the student, for example, flash cards, geographical maps, and so

forth.” These accounting classifications comport with the conclusion that the

challenged fees are assessed to cover the cost of classroom materials, as authorized

by R.C. 3313.642.

{¶ 17} While Massie emphasizes that the court must narrowly construe R.C.

3313.642, courts do not have the authority to ignore the plain language of a statute

under the guise of statutory interpretation or liberal or narrow construction. See,

e.g., Morgan v. Ohio Adult Parole Auth. (1994), 68 Ohio St.3d 344, 347, 626

N.E.2d 939, 942. The plain language of R.C. 3313.642 permits the instructional

fees established by respondents because they are being used for classroom

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materials. Therefore, Massie is not entitled to a writ of mandamus based on Kiger

and the applicable statutes. His first proposition of law is meritless and is overruled.

Constitutionality of R.C. 3313.642

{¶ 18} In his second proposition of law, Massie asserts that even if the fees

are authorized by R.C. 3313.642, he is entitled to extraordinary relief in mandamus

to compel issuance of the withheld grades and credits of his children because R.C.

3313.642 is unconstitutional. Massie claims that R.C. 3313.642 violates due

process because it penalizes children (by withholding grades and credits) for the

actions of their parents (failure to pay fees for materials used in a course of

instruction).

{¶ 19} Massie did not raise this constitutional claim in his complaint or

motion to amend the complaint. The alternative writ was issued on a pleading

which did not include this claim. Evidence was presented by respondents without

notice that this claim was being raised. Massie has not sought leave to amend his

complaint to raise this claim. Finally, respondents have not expressly or impliedly

consented to trial of this issue. Civ.R. 15(B). Therefore, we need not consider the

merits of this improperly raised claim. See, e.g., Austintown Loc. School Dist. Bd.

of Edn. v. Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities (1993), 66

Ohio St.3d 355, 364-365, 613 N.E.2d 167, 174-175; State ex rel. Evans v.

Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41, 5 OBR 99, 448 N.E.2d 1159,

syllabus.

Conclusion

{¶ 20} Accordingly, in that Massie has failed to establish either a clear legal

right to the withheld grades and credits of his children or a corresponding clear legal

duty on the part of respondents to issue them, he is not entitled to the requested

extraordinary relief in mandamus. The writ is denied.

Writ denied.

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January Term, 1996

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

STRATTON, JJ., concur.

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