S. J. v. Malcolm Thomas

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

S.J., NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D16-3635

MALCOLM THOMAS and

SCHOOL BOARD FOR

ESCAMBIA COUNTY,

FLORIDA,

Appellees.

_____________________________/

Opinion filed December 19, 2017.

An appeal from the Circuit Court for Escambia County.

John L. Miller, Judge.

Benjamin James Stevenson, ACLU Foundation of Florida, Pensacola, and Nancy

Abudu, ACLU Foundation of Florida, Miami, for Appellant.

Joseph L. Hammons, The Hammons Law Firm, Pensacola, for Appellees.

WOLF, J.

Appellant S.J. challenges a trial court order dismissing with prejudice his

complaint requesting mandamus relief. Appellant, a high school student, requested

the trial court to require appellee the Escambia County School Board (the School

Board) to issue a final order as defined by the Administrative Procedure Act (the

APA), in section 120.57(7), Florida Statutes (2015), in an administrative proceeding

regarding appellant’s “disciplinary reassignment” by the School Board. We find that

the complaint for mandamus relief sufficiently alleged facts that entitle appellant to

mandamus relief.1 We, therefore, reverse and remand for the trial court to issue an

alternative writ of mandamus directing the School Board to show cause why the

alternative writ should not be granted. See Holcomb v. Dep’t of Corr., 609 So. 2d

751, 753 (Fla. 1st DCA 1992); Radford v. Brock, 914 So. 2d 1066, 1067-68 (Fla. 2d

DCA 2005).

I. Facts

Appellant, a minor, sued the School Board and the Superintendent of Schools,

Malcolm Thomas. In his complaint, appellant alleged that the superintendent

removed him from his regular, traditional school, West Florida High School, through

a process called “disciplinary reassignment,” and did not give him an option to attend

another traditional school. Instead, appellant alleged he had to finish out the school

year at either an alternative school or a virtual school. Appellant opposed the

“disciplinary reassignment” and requested a hearing, which was held pursuant to the

1

We decline to address appellee’s assertion raised for the first time on appeal that a

final order was actually issued. This claim was not raised in the motion to dismiss

or ruled on by the trial court. Further, the face of appellant’s complaint contradicted

this assertion.

2

APA, sections 120.569 and 120.57, Florida Statutes. On January 28, 2016, the

hearing officer issued a recommended order recommending appellant be

“disciplinarily reassigned” for the remainder of the 2015-2016 school year.

On February 16, 2016, the School Board adopted the hearing officer’s

recommended order, and in March 2016 it created a Notice of Adoption of

Recommended Order. There is no indication that the School Board intended its

Notice of Adoption of Recommended Order to be a rendered final order pursuant to

section 120.57(7). Further, the School Board’s actions throughout this proceeding

indicate that although it held a hearing on the issue of appellant’s “disciplinary

reassignment” pursuant to the APA, it did not intend to bestow upon appellant all of

the rights afforded by the APA.

After the Notice of Adoption of Recommended Order was filed, appellant

filed a complaint alleging two counts, only one of which is pertinent to the current

appeal: appellant requested a writ of mandamus against the School Board, alleging

the Board had an indisputable legal duty to issue a written final order pursuant to the

APA following the hearing and the hearing officer’s recommended order of

“disciplinary reassignment.” Appellant reasoned that his “disciplinary

reassignment” affected his substantial interests much like expulsion. Specifically as

to the nature of the “disciplinary reassignment,” appellant’s complaint alleged:

10. Following an incident on October 1, 2015, the Student’s regular

school principal suspended the Student.

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11. Based on the October 1 incident, the Student’s school principal

requested that the Superintendent remove the Student from his regular

school.

12. On October 21, 2016 [sic], the Superintendent recommended to the

School Board to remove the Student from his regular school through a

process called “disciplinary reassignment.”

13. Both disciplinarily reassigned students and students expelled with

services are removed from their regular schools. Expelled students are

offered the same educational services at an alternative or virtual school

as offered to disciplinarily reassigned students.

14. Like the determination to expel a student, the determination to

disciplinarily reassign a student affects his substantial interest.

15. Disciplinary reassign [sic] affects a student’s substantial interest in

a high quality education and educational opportunities in several ways

including the quantity and quality of work assignments, the curriculum

design, availability of physical education, the teaching methods and

learning activities used, access to highly qualified teachers, positive

social interactions with traditional school students during both

instructional and non-instructional periods, eligibility to participate in

sports and extracurricular activities, blemish on school record, and the

location of the school.

16. After the Superintendent issued his recommendation of disciplinary

reassignment, the Superintendent prohibited the Student from attending

his regular school. The Superintendent has prohibited the Student from

attending his regular school since the Superintendent made the

recommendation of disciplinary reassignment. The Superintendent

continues to prohibit the Student from attending his regular school or

any other traditional school in the School District.

....

(Emphasis added).

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The School Board moved to dismiss appellant’s complaint requesting

mandamus relief, alleging it had no legal duty to issue a final written order pursuant

to the APA because (1) the Legislature did not explicitly require the same APA due

process protections for “disciplinary reassignment” as it did for expulsion, and (2)

appellant’s “disciplinary reassignment” did not trigger APA protection because it

did not affect his substantial interests.

A hearing was held on the motion to dismiss on May 26, 2016, where both

parties presented argument. The trial court orally granted the motion to dismiss,

holding that the APA did not apply to “disciplinary reassignment” both because (1)

the Legislature did not explicitly provide for “disciplinary reassignment” to fall

under the purview of the APA like it provided for expulsion; and (2) “disciplinary

reassignment” did not affect a substantial interest of appellant. The court also

determined that the School Board allowing an administrative hearing in this case and

having the hearing officer make findings of fact and conclusions of law did not

automatically vest jurisdiction within the APA.

II. Analysis

A request for mandamus relief is appropriate when an agency wrongfully

refuses to issue an administrative final order pursuant to the APA. Sowell v. State,

136 So. 3d 1285 (Fla. 1st DCA 2014). Our review of a trial court’s order dismissing

a complaint based upon an interpretation of statutes is de novo. See Walker v. Ellis,

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989 So. 2d 1250 (Fla. 1st DCA 2008); Henry v. State, 134 So. 3d 938, 945 (Fla.

2014).

This court has laid out the appropriate procedure for a trial court when ruling

on a motion to dismiss a request for mandamus relief. Similar to ruling on any

motion to dismiss, the trial court must consider the sufficiency of the allegations as

pled.

In order for a court to issue a writ of mandamus, a petitioner “must

show that he has a clear legal right to the performance of a clear legal

duty by a public officer and that he has no other legal remedies available

to him.” Hatten v. State, 561 So.2d 562, 563 (Fla.1990). When a

petitioner files a petition for mandamus, the court has the initial task of

assessing the legal sufficiency of the allegations. If the court finds the

allegations insufficient, it will deny the petition, see, e.g., Gibson v.

Florida Parole & Probation Comm'n, 450 So.2d 553 (Fla. 1st DCA

1984), or dismiss those claims that are factually insufficient, see,

e.g., Adams v. Wainwright, 512 So.2d 1077 (Fla. 1st DCA1987).

However, if the petition is facially sufficient, the court must issue an

alternative writ, i.e., an order directed to the respondent to show cause

why the requested relief should not be granted. Conner v. Mid-Florida

Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA1989);

Fla.R.Civ.Pro. 1.630(d).

Holcomb, 609 So. 2d at 753.

“Disciplinary reassignment” is neither defined nor mentioned in the Florida

Statutes. Thus, the method of review of this type of disciplinary action of the School

Board is not clearly outlined. However, other types of disciplinary decisions are

specifically addressed in the statutes, which set out the methods of review of those

decisions. Appellant claims he is entitled to a final order under the APA and that

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such a final order is necessary for this court to review this case on the

merits. Mitchell v. Leon County Sch. Bd., 591 So. 2d 1032, 1033 (Fla. 1st DCA

1991) (“In the absence of rendition of a proper order there is nothing for this court

to review nor, for that matter, any true legal obstacle to Mitchell’s return to

classes.”). We, therefore, must resolve two issues: (A) whether “disciplinary

reassignment,” as set out in the complaint, is sufficiently similar to other types of

discipline that fall under the purview of the APA to also require APA protections in

this case, including the rendering of a final order; and (B) even if “disciplinary

reassignment” is not sufficiently similar to other types of discipline, whether its

application nonetheless affects appellant’s substantial interests and therefore

requires application of the APA.

A. Whether “Disciplinary Reassignment” is Similar to Other Types of Education

Code Discipline

The Florida Legislature permits school districts to deprive a student of his or

her constitutional right to an education in a traditional school and remove the student

from the classroom in four specific ways. School districts may remove a student

through (1) in-school suspension; (2) out-of-school suspension; (3) expulsion; and

(4) either voluntary or involuntary assignment to a “dropout prevention [or]

academic intervention program.” See § 1006.07(1)(a), Fla. Stat. (2015) (directing

school boards to adopt rules for the “in-school suspension, [out of school]

suspension, and expulsion of students”); § 1003.53, Fla. Stat. (2015) (“defining

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dropout prevention [or] academic intervention program”); § 1003.32(5), Fla. Stat.

(2015) (indicating a student removed from a classroom may be placed in in-school

suspension, out-of-school suspension, assigned to a “dropout prevention [or]

academic intervention program,” or expelled).

Each form of removal is clearly defined in the Education Code. § 1003.01,

Fla. Stat.; § 1003.53, Fla. Stat. Further, the Florida Legislature has explicitly

indicated whether each form of removal is subject to the APA. Both in-school and

out-of-school suspensions are excluded from the APA. § 1006.07(1)(a), Fla. Stat.

Expulsion and involuntary assignment to a “dropout prevention [or] academic

intervention program” are subject to the APA. § 1006.07(1)(a), Fla. Stat; §

1003.53(5), Fla. Stat.

Rather than reviewing the entirety of the Education Code as a whole, however,

the trial court looked only to one section of the Code, section 1006.08(1), Florida

Statutes (2015), to support its finding that the APA did not apply to “disciplinary

reassignment” because that section did not explicitly provide for it.

Section 1006.08(1) notes the authority of various school employees to place

disruptive students “in an alternative education setting;” however, it does not

delineate the types of “alternative education settings” in which students may be

placed. It does specifically note, though, that a student who is recommended for

expulsion by the district school superintendent will have the due process rights of

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the APA. Relying solely on this section, the trial court determined, and the School

Board argues, that the Legislature’s silence indicates its clear intent to exclude

students facing placement in an “alternative educational setting” other than

expulsion from the procedural protections of the APA.

The trial court’s reading of section 1006.08 does not give the Legislature’s

intent full consideration because it does not consider the Education Code in its

entirety. The Legislature’s determination in section 1006.08 that students who are

expelled should be protected by the procedural due process rights of the APA cannot

necessarily be read to exclude students facing placement in an “alternative education

setting” from receiving the same due process protections. “‘[I]f a part of a statute

appears to have a clear meaning if considered alone but when given that meaning is

inconsistent with other parts of the same statute or others in pari materia, the Court

will examine the entire act and those in pari materia in order to ascertain the overall

legislative intent.’” Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986

So. 2d 1260, 1265-66 (Fla. 2008) (quoting Fla. State Racing Comm’n v.

McLaughlin, 102 So. 2d 574, 575-76 (Fla. 1958)).

The Education Code, in sections other than section 1006.08, provides APA

protections to students who are placed in other “alternative education settings” but

are not expelled. For example, involuntary placement in a dropout prevention and

academic intervention program could be considered “placement in an alternative

9

education setting;” though section 1006.08 itself did not expressly provide for APA

protection for those involuntarily placed in a dropout prevention and academic

intervention program, section 1003.53, Florida Statutes, explicitly does. Thus, it is

illogical, from reading the Education Code in pari materia, to determine that the

Legislature’s failure to note in one section of the Education Code that “alternative

education settings” other than expulsion could be governed by the APA evinced a

legislative intent to exclude all of the other “alternative education settings” from the

APA’s jurisdiction.

Further, in the Education Code, the Legislature not only specifically noted

certain “alternative education settings” that were governed by the APA, it also

specifically noted certain “alternative education settings” that were exempt from the

APA. For example, section 1006.07(1)(a) notes that “[s]uspension hearings are

exempted from the provisions of chapter 120,” but that “[e]xpulsion hearings shall

be governed by ss. 120.569 and 120.57(2).” The Legislature did not explicitly

exclude “disciplinary reassignment” from the purview of the APA as it did with

other forms of discipline.

Because the Legislature failed to explicitly determine whether “disciplinary

reassignment” itself falls within the purview of the APA, we reject an interpretation

of the Education Code that requires this court to look solely at the statutes without

consideration of the consequences of “disciplinary reassignment” as alleged in the

10

complaint to determine whether those consequences entitle a “disciplinarily

reassigned” student to the due process protections of the APA.

Where the Legislature has determined that expulsions and involuntary

assignments to dropout prevention and academic intervention programs do require

the procedural protections of the APA, it is logical to further conclude that

“disciplinary reassignments” that are factually indistinguishable on the face of the

complaint from expulsion and involuntary assignment to dropout prevention and

academic intervention programs should also fall within the purview of the APA.

Here, we believe appellant’s “disciplinary reassignment” as alleged in his complaint

is similar to both expulsion and involuntary assignment to dropout prevention and

academic intervention programs as defined by the Education Code. 2

“Expulsion” is defined in the Education Code as “the removal of the right and

obligation of a student to attend a public school under conditions set by the district

2

The Fifth District Court of Appeal recently held that a student who was transferred

from her then-current school to a virtual school for a period of time was not entitled

to the protections of the APA. G.F.C. v. Pace, 225 So. 3d 421 (Fla. 5th DCA 2017).

We do not find this case persuasive. The court relied on a case from the Fourth

District, D.K. ex rel. Kennedy v. District School Board of Indian River County, 981

So. 2d 667 (Fla. 4th DCA 2008), which held that a student who was suspended for

10 days is not entitled to the protections of the APA. To the extent that the Fifth

District equates the punishment imposed in G.F.C. with a period of short suspension,

we reject that contention. For the reasons previously expressed, we determine that

the punishment imposed in this case is more similar to an expulsion than a brief

suspension.

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school board, and for a period of time not to exceed the remainder of the term or

school year and 1 additional year of attendance. Expulsions may be imposed with or

without continuing educational services and shall be reported accordingly.” §

1003.01(6), Fla. Stat. (2015) (emphasis added).

Appellant contends that “disciplinary reassignment” is the same as expulsion

with continuing educational services because his reassignment prevented him from

attending another traditional school. However, the School Board points out that

expulsion eviscerates the student’s right to attend a public school, whereas

“disciplinary reassignment” allows the student to attend a public school – just a

different one than his or her original public school. It notes that here, appellant was

able to enroll in a virtual school. The distinction is a fine one and may even be a

distinction without a difference, as expulsion can include “continuing educational

services.” Further, in the current case, appellant alleged in his complaint that he was

not given the option of attending another traditional public school. If these

allegations are taken as true, there is no meaningful distinction between expulsion

and the “disciplinary reassignment” in this case.

Additionally, as noted by appellant, “disciplinary reassignment” has much in

common with involuntary assignment to dropout prevention and academic

intervention programs as outlined in section 1003.53, Florida Statutes. That statute

notes that while normally student participation in a dropout prevention or academic

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intervention program is voluntary, “[d]istrict school boards may . . . assign students

to a program for disruptive students.” § 1003.53(1)(a), Fla. Stat. A student qualifies

for services funded through the dropout prevention and academic intervention

program if he or she “has a history of disruptive behavior in school.” §

1003.53(1)(c)3, Fla. Stat. “Disruptive behavior” in that subsection is defined as

behavior that either “[i]nterferes with the student’s own learning or the educational

process of others and requires attention and assistance beyond that which the

traditional program can provide or results in frequent conflicts of a disruptive

nature,” or that “[s]everely threatens the general welfare of students or others with

whom the student comes into contact.” § 1003.53(1)(c)3b, Fla. Stat.

Dropout prevention and academic intervention programs may differ from

traditional educational programs and schools in:

scheduling, administrative structure, philosophy,

curriculum, or setting and shall employ alternative

teaching methodologies, curricula, learning activities, and

diagnostic and assessment procedures in order to meet the

needs, interests, abilities, and talents of eligible students.

§ 1003.53(1)(a), Fla. Stat.

These differences between dropout prevention and academic intervention

programs and traditional educational programs mirror the ways in which appellant

alleged his “disciplinary reassignment” from his traditional school to a virtual school

affected his substantial interests:

13

the quantity and quality of work assignments, the

curriculum design, availability of physical education, the

teaching methods and learning activities used, access to

highly qualified teachers, positive social interactions with

traditional school students during both instructional and

non-instructional periods, eligibility to participate in

sports and extracurricular activities, blemish on school

record, and the location of the school.

Thus, expulsion, involuntary assignment to a dropout prevention and

academic intervention program, and the “disciplinary reassignment” as alleged in

the current case all have shared characteristics that may involve involuntary

separation from the traditional educational setting and benefits attached to such

placement for potentially long periods of time. Because of this similarity, and

because appellant’s complaint must be taken as true with the procedural posture of

this case, we find the trial court erred in granting the motion to dismiss appellant’s

complaint. Where appellant sufficiently alleged a similarity between “disciplinary

reassignment” and two other disciplinary measures that explicitly fall under the

purview of the APA pursuant to the Education Code, it was error for the trial court

to determine, solely on the face of appellant’s complaint, that appellant’s own

“disciplinary reassignment” did not also fall within the APA’s purview.

B. Whether Appellant’s “Disciplinary Reassignment” in the Current Case Affects

His Substantial Interests

Appellant also alleges that the consequences of his “disciplinary

reassignment” as set forth in his complaint affected his substantial interests, and

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therefore his “disciplinary reassignment” required the application of the APA. We

agree. To determine whether an action affects the substantial interests of the plaintiff

pursuant to section 120.569, Florida Statutes, two questions must be asked: (1)

whether the proposed agency action results in an injury-in-fact that is of sufficient

immediacy to justify a hearing; and (2) whether the injury is of the type that the

statute under which the agency has acted is designed to protect. School Bd. of Palm

Beach County v. Survivors Charter Sch., Inc., 3 So. 2d 1220, 1231 (Fla. 2009)

(quoting Fairbanks, Inc. v. State, Dep’t of Transp., 635 So. 2d 58, 59 (Fla. 1st DCA

1994)).

1. Injury-in-Fact

Under the first prong, “the injury-in-fact standard is met by a showing that the

petitioner has sustained actual or immediate threatened injury at the time the petition

was filed, and ‘[t]he injury or threat of injury must be both real and immediate, not

conjectural or hypothetical.’” S. Broward Hosp. Dist. v. State, Agency for Health

Care Admin., 141 So. 3d 678, 681 (Fla. 1st DCA 2014) (quoting Village Park Mobile

Home Ass’n v. State, Dep’t of Bus. Regulation, 506 So. 2d 426, 433 (Fla. 1st DCA

1987) (holding that appellant established injury-in-fact by showing the real and

immediate injury that it would not receive a refund of almost $150,000 as a result of

AHCA’s action)); Menorah Manor, Inc. v. Agency for Health Care Admin., 908 So.

2d 1100, 1104 (Fla. 1st DCA 2005) (finding Menorah Manor failed to prove

15

substantial injury where the harm it alleged was conclusory, speculative, and

regarded damage only to its reputation).

In his complaint, appellant alleged that the School Board affected his

substantial interests by removing him from his regular school and “disciplinarily

reassigning” him to an alternative or virtual school:

Disciplinary reassign[ment] affects a student’s substantial interest in a

high quality education and educational opportunities in several ways

including the quantity and quality of work assignments, the curriculum

design, availability of physical education, the teaching methods and

learning activities used, access to highly qualified teachers, positive

social interactions with traditional school students during both

instructional and non-instructional periods, eligibility to participate in

sports and extracurricular activities, blemish on school record, and the

location of the school.

The School Board states that this allegation is insufficient and relies on School

Board of Orange County v. Blackford, 369 So. 2d 689, 691 (Fla. 1st DCA 1979), in

which two parents of children who attended Cherokee Junior High School alleged

that they (via their children) had a substantial interest in their children’s school being

shut down and their children being transferred to Howard Junior High School. This

court determined that although “[e]very concerned parent has an interest in their

children and in the educational program in which their children are enrolled,” and

“[t]hey also have a natural interest that the educational progress of the child not be

unnecessarily disrupted,” a change from one school to the other, on its face, standing

alone, could not be considered a hindrance. Id.

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Blackford, however, does not apply because it involved a transfer from one

traditional high school to another. In contrast, in this case appellant alleged that his

“disciplinary reassignment” affected his ability to attend a traditional high school at

all. He alleged that “[t]he Superintendent continues to prohibit the Student from

attending his regular school or any traditional school in the school district.”

(Emphasis added). Thus, appellant properly alleged injury in fact and met the first

requisite element to prove his “disciplinary reassignment” affected his substantial

interests.

2. Injury of the Type Protected by the Statute

To meet the second element necessary to prove his “disciplinary

reassignment” affected his substantial interests, appellant needed to show his injury

was of the type that the statute under which the School Board acted was designed to

protect. Fairbanks, 635 So. 2d at 59. We find appellant has done so.

The statutes at issue in the present case were intended to establish a balance

between the right of the school administration to control the behavior of students at

school for the benefit and welfare of all students versus the rights of a student to due

process in challenging severe disciplinary measures.

The purpose of the Education Code as a whole “is to provide by law for a state

system of schools, courses, classes, and educational institutions and services

adequate to allow, for all Florida’s students, the opportunity to obtain a high quality

17

education.” § 1000.01(2), Fla. Stat. (2015). Thus, appellant’s allegation that his

“disciplinary reassignment” affects his substantial interests in attending a traditional

public school are the type of interests the Education Code was designed to protect.

However, the Education Code also requires the school districts “[p]rovide for

the proper accounting for all students of school age, for the attendance and control

of students at school, and for proper attention to health, safety, and other matters

relating to the welfare of students.” § 1003.02(1), Fla. Stat. (2015) (emphasis added).

“Control of students” encompasses adopting “rules for the control, attendance,

discipline, in-school suspension, suspension, and expulsion of students.” §

1003.02(1)(c)1, Fla. Stat. We do not challenge the ability and necessity of the School

Board to control and ensure a safe environment for all of its students.

Nonetheless, the Education Code does provide for a balance between the two

occasionally competing interests of the student’s right to receive a high-quality

public education and the duty of school boards to control students. This balance can

be found in the Legislature’s determination that certain disciplinary actions are

governed by the APA. Pro Tech Monitoring, Inc. v. State, Dep’t of Corr., 72 So. 3d

277, 279 (Fla. 1st DCA 2011) (“[T]he purpose of the Administrative Procedure Act

is to ensure due process and fair treatment of those affected by administrative

actions.”).

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Thus, the procedural safeguards afforded by the APA allow students to

challenge the School Board’s disciplinary decisions that affect their substantial

interests. Where, as here, appellant has appropriately alleged his substantial interests

are affected, the APA enables appellant to challenge the School Board’s disciplinary

action. In conclusion, we determine that appellant’s complaint pled a facially

sufficient request for a writ of mandamus ordering the School Board to render a final

order of appellant’s “disciplinary reassignment.” Appellant sufficiently alleged that

the “disciplinary reassignment” in his case was virtually indistinguishable from

expulsion with continued educational services, which falls under the purview of the

APA pursuant to the Education Code. Appellant also sufficiently alleged that

“disciplinary reassignment” affected his substantial interests.

As such, we determine that the trial court erred in granting the School Board’s

motion to dismiss appellant’s complaint, and we REVERSE and REMAND for the

trial court to issue an alternative writ of mandamus directing the School Board to

show cause why the requested relief should not be granted. See Holcomb, 609 So.

2d at 753; Radford, 914 So. 2d at 1067-68.

B.L. THOMAS, C.J., and ROBERTS, J., CONCUR.

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