Petition — Geraci v. St. Xavier High School
Supreme Court brief1979
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IN THE \ YUN 11 J970 i
SUPREME COURT OF THE UNITED STATES ....,.
OCTOBER TERM, 1978
'
,
MARK W. GERACI
and
JOSEPH A. GERACI,
Petitioners,
VS.
ST. XAVIER HIGH SCHOOL,
REV. PAUL BORGMANN,
MICHAEL D. TRAINOR,
THOMAS A. MEYER,
REV. ROBERT O’CONNER,
RICHARD B. BERNING,
RICHARD J. PIZNING,
JAMES F. CAHILL,
REV. DANIEL L. FLAHERTY,
and
SOCIETY OF JESUS,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF OHIO
(Counsel on inside cover)
COURT INDEX PRESS, INC. — 2/5 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450
ROSEN AND ROSEN
BY: HYMAN B. ROSEN
1005 First National Bank Building,
Fourth and Walnut Streets,
Cincinnati, Ohio 45202
(513) 621-0828
Attorneys for Petitioners
DINSMORE, SHOHL, COATES
& DEUPREE
BY: GARY D. BULLOCK
WILLIAM L. BLUM
2100 Fountain Square Plaza
Cincinnati, Ohio 45202
(513) 621-6747
Attorneys for Respondents
TABLE OF CONTENTS
JURISDICTIONALSTATEMENT |
QUESTION PRESENTED FOR REVIEW _...
CONSTITUTIONAL PROVISION INVOLVED
STATUTES INVOLVED ....
STATEMENT OF THE CASE ..........
STATEMENT OF FACTS
ARGUMENT FOR ALLOWANCE OF WRIT OF
CERTIORARI
CONCLUSION
APPENDIX
A
B
Cc
D
ea)
oO
Order from the Supreme Court of Ohio Dis-
missing Appeal from Court of Appeals ___.
Order from the Supreme Court of Ohio De-
III eee, |
Notice of Appeal in the Supreme Court of
ES OE
Opinion of the Court of Appeals _.
Judgment Entry of the Court of Appeals
Entry Overruling Motion to Require Court to
Pass on Assignments of Error and Overrul-
ing Application for Reconsideration |
Opinion of the Court of Common Pleas .__.
Judgment Entry of the Court of Common
tt ile eS i
Page
I Excerpt from Complaint Filed August 7, 1978
Powrozirer
Court of Common Pleas, Hamilton Coun-
lop CI ON Ms ok bs tis Bee ee 5 28a
Excerpt from Memorandum of Petitioners
Filed August 25, 1978, Court of Common
Pleas, Hamilton County, Ohio Page 10 .... 29a
Excerpt from Memorandum of the Petitioners
in the Court of Appeals for the First Ap-
pellate District of Ohio Filed October 5,
See Ms acd evan ob miss pe mate 30a
UD TERR I en 6s ik cs reams 3la
OGNINEL Mn GAMO si anne nce ep 32a
as 6 34a
PR I GUNES as ila eek ss kaos eras 35a
NE MUD SDs 6.) 6 hs ns 5 sb are pean ee 36a
Title 28, Section 1257 (3) U.S.C. ............ 37a
1977-78 St. Xavier Handbook Containing
Grounds for Expulsion .................. 38a
TABLE OF AUTHORITIES
Cases: Page
Amalgamated Food Employees Union Local 590 v.
Logen Valley Plaza, Inc., 391 U.S. 308 .......... 13
American Life & Accident Insurance Company of
Kentucky v. Jones, 152 Oh. St. 287, 297 ...... 23
Armstrong v. Manzo, 380 U.S. 545 .............. 26
Belk v. Chancellor of Washington University, 336
We UE, Gg a ee ce aces 17
Board of Education of Central School District v.
Allen, Commissioner, 392 U.S. 236 ............ 16
Board of School Commissioners of the City of In-
dianapolis v. Jacob, 420 U.S.128................ 23
Brown v. Board of Education, 347 U.S. 483, 493 .. 16
Buckton v. National Collegiate Athletic Association,
$66.F. Supp. 1152 (D.C. Mas.) ................ 17
Carroll v. Lessee of Carroll, 57 U.S.275 ...... oe
Coe v. Armour Fertilizer Works, 237 U.S. 413 .... 26
ek Wi A, GP 8 ec ee eh das 22
Culver v. City of Warren, 84 Oh. App. 373, 393 .. 23
Evans v. Newton, 382 U.S. 296 ................. oe
Franks v. Bowman Transportation Company, 424
I en eer 23
Garner v. Louisiana, 368 U.S. 157 .............. 22
Gese v. Eanes, 41:05. S66. ... 2... a nas 12, 21
Griffin v. Breckenridge, 403 U.S.88 ..............., 15
IV.
Page
Hammond v. University of Tampa, 344 F. (2d) 951... 17
Hudgens v. N.L.R.B., 424 U.S. 507 ................ 13
In Re Gault, 387 U.S. 1 5 i aoe ti ee 23, 25
— v. re Edison Company, 419 U.S.
rrr eee ee 14
Koblitz v. Western Reserve University, 2) Oh. Cir.
Ct. 144, P. 158 <a 5 oa Geka ae Rete 21-22
Lioyd Corp. Ltd. v. Tanner, 407 U.S. 551... 13, 14
Lockett v. State of Ohio, 98 Sup. Ct. Rep. 2984 .. 25
Marsh v. Alabama, 326 U.S. 501 .................. 13
Miner v. Wiss, G2 Ob. Se. S0P 2. 2505s he ee 23
NAACP v. Alabama, 357 U.S. 449 ._............... 24
National Labor Relations Board v. The Cat* lic
Bishop of Chicago, No. 77-752, Decided 3/21/79 .. 16
New England Divisions Case, 261 U.S. 185 ........ 26
Pacific Steamship Company v. Peterson, 278 U.S.130 27
Pierce, Gov. of ee v. a of Sisters, 268
US. 510 + oo oe ws how ee ee ed 24
Presseisen v. Swarthmore, 71 F.R.D. (E.D. Pa.) .... 17
Raley v. Obie, 360 US. GB... PRs 22
Schoppelrei v. Franklin University, 11 Oh. App.
(2d) 62 . PP rr ry 22
Shelley v. Kraemer, 884 US. 1 ..........0....64 24
Slaughter v. Brigham Young Uviversity, 514 F.
(2d) 622 kee aie yal sea ee 17
Vv .
Page
aeary ©. Agee, 340 US: 461... .. 18, 18
United States v. Harriss, 347 U.S. 612 ............ 22
West Virginia State Board of Education v. Bar-
I UO kc vee ee veees 25
Wolman v. Walter, 433 U.S. 229 ................. 24
Constitution:
Fourteenth Amendment, Section 1 to United States
en a low 2
Statutes:
NE ee ee 23
ES 15, 16
I I no, ik, kala wie dss wes eee
ec ecteaewsave 15
SE a a 15
Title 28, Section 1257(3) U.S.C. .......... Feticd 2
Other Authorities:
20 Case — Western Reserve Law Review 378 ....... 19
8] Harvard Law Review 1045 .................. 18
58 Marquette Law Review 705,739... ........ a ee
48 N.Y.U. Law Review 1151, 1146................... 18
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
MARK W. GERACI and JOSEPH A. GERACI,
Petitioners,
vs.
ST. XAVIER HIGH SCHOOL, et al,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF OHIO
JURISDICTIONAL STATEMENT
Petitioners respectfully petition this Court for a Writ
of Certiorari to review the final orders and judgments of
the Supreme Court of Ohio entered on March 23, 1979
dismissing their appeal without opinion and denying their
Motion for an order directing the Court of Appeals for the
First District of Ohio to certify its record to the Supreme
Court of Ohio, which are appended hereto on pages la
and 2a of the Appendix.
The opinion of the Court of Appeals of the First District
of Ohio was returned on December 27, 1978, is not
reported and is appended hereto in the Appendix, P. 6a.
9
—
The application of the Petitioner to reconsider was denied
by the Court of Appeals on January 25, 1979, without
opinion.
The jurisdiction of this Court to consider the Federal
Constitutional issues is conferred by Title 28, Section
1257(3) U.S.C. which is appended hereto on P. 37a of the
Appendix.
QUESTION PRESENTED FOR REVIEW
Does the Fourteenth Amendment to the United States
Constitution confer on a student in a private or parochial
school the right to ‘‘due process”’ in disciplinary proceedings
against him?
CONSTITUTIONAL PROVISION INVOLVED
Fourteenth Amendment, Section 1 to the United States
Constitution is as follows:
“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”
The manner in which the rights guaranteed to the
Petitioners under the Fourteenth Amendment to the
United States Constitution were raised in this case is as
follows:
3
. Complaint of the Petitioners in the Court of Com-
mon Pleas of Hamilton County Ohio, Page 6, Item
15, in which it is alleged that the Respondents “failed
to accord the Plaintiffs ‘due process’ and ‘equal pro-
tection’ with other students at said school as required
by State and Federal laws.”
Said Item 15 is Appended hereto on P. 28a of the
Appendix.
. Memorandum of Petitioners filed at the trial in
the Court of Common Pleas, Hamilton County Ohio
— Page 10, in which it is claimed that there had
been a violation of Petitioners’ rights of ‘due pro-
cess” and “equal protection”.
Excerpts from this Memorandum is appended hereto
on P. 29a of the Appendix.
. Opinion of the Court of Common Pleas of Hamilton
County Ohio which is appended hereto on P. 17a
of the Appendix.
Special attention is called to pages 1 and 6 of the
Opinion in which the Court finds: “that due pro-
cess is not applicable to a private institution based on
the evidence of this case.”
. Page 8 of the Memorandum of the Petitioners in the
Court of Appeals for the First Appellate District
of Ohio which is appended hereto on P. 30a of the
Appendix, in which the following appears:
“The Trial Court erred to the prejudice of the
Plaintiffs when it held that the Constitutional
rights of due process guaranteed by the Four-
teenth Amendment of the United States do not
extend to them.
4
Issues Presented for Review
First Issue
The Constitutional right of due process set
forth in the Fourteenth Amendment of the
United States applies to and is controlling in
disciplinary proceedings by a private school
against a student.”
5. Memorandum of the Petitioners in the Court of
Appeals for the First Appellate District of Ohio in
which the following appears on P. 18 thereof:
“Second Issue
The Constitutional right of due process set forth
in the Fourteenth Amendment of the United
States requires that disciplinary proceedings
against a student by a private school for which
expulsion is a possible penalty be procedurally
fair with notice and substantially all of the rights
granted in a judicial hearing.”
6. Opinion of the Court of Appeals for the First Ap-
pellate District of Ohio which is appended hereto on
P. 5a of the Appendix.
Special reference is made to P. 2 where the Court
recognizes that the issue is “whether appellants’ con-
stitutional right to ‘due process’ has application to
the conduct or disciplinary proceedings by a private
school.”
. Assignment of Error No. | of Petitioners in the Court
of Appeals as follows:
“The Trial Court erred to the prejudice of the
Plaintiffs when it held that the Constitutional
. rights of Due Process guaranteed by the Four-
5
teenth Amendment of the United States do not
extend to them.”
8. Notice of Appeal of the Petitioners to the Supreme
Court of Ohio from the Court of Appeals appended
hereto on P. 3a of the Appendix with special refer-
ence to the following statement therein:
“This case involves a substantial Constitutional
Question, concerning namely the Fourteenth
Amendment of the United States Constitution
and is of public or great general interest.”
STATUTES INVOLVED
Section 2721.09 O.R.C.
Section 3321.04 O.R.C.
Section 3321.07 O.R.C.
Section 3321.38 O.R.C.
Section 3321.99 O.R.C.
STATEMENT OF THE CASE
Petitioners Mark W. Geraci, a student at St. Xavier
High School, Cincinnati, Ohio, and his father, Joseph
A. Geraci, filed a Complaint in the Court of Common
Pleas of Hamilton County Ohio to restrain the Respon-
dents, St. Xavier High School and its various administrators
from expelling him on account of alleged misconduct
which took place on June 2, 1978. An additional Count
asking for a Declaratory Judgment of the rights and status
of the parties, as well as further relief based on such
determination was included in the Complaint.
The Trial Court denied Petitioners’ request for relief
and found that St. Xavier High School, Respondent, was
6
a private institution not covered by the Fourteenth Amend-
ment of the United States Constitution and thus, not re-
quired to afford the Petitioner “due process”.
It also found that a contract existed between the parties
for the education of Mark W. Geraci, the terms and con-
ditions of which were set forth in the Student Handbook
issued by the school. The Court further found there were
eleven offenses for which the maximum penalty was ex-
pulsion as set forth on P. 18 of the Student Handbook,
which is appended hereto on P. 38a cf the Appendix, and
Mark was guilty of violating Offenses No. 1 and 8. These
offenses were:
(1) No. 1: “Conduct detrimental to the reputation
of the School.”
(2) No. 8: “Immorality in talk or action.”
The Trial Court found that Mark W. Geraci had
breached the contract for his education by his misconduct,
and the expulsion was warranted. The Court of Appeals
affirmed the judgment of the Trial Court, and the Supreme
Court of Ohio dismissed the Petitioners’ Appeal finding no
debatable constitutional questions and denied their Motion
to Certify.
7
STATEMENT OF FACTS
On June 2, 1978, a lemon meringue pie was thrown at
James Downie, an English teacher at St. Xavier High
School, a Catholic Parochial High School at Cincinnati,
Ohio by Tom McKenna, a student at Moeller High School,
Cincinnati, Ohio. This was intended to be a prank on
the last day of school concocted by seven of Mr. Downie’s
students. There was little or no injury to Mr. Downie
since the pie only struck him on one side of the face, and
most of it was dissipated on his clothes and the blackboard.
Petitioner Mark W. Geraci was expelled the same day
by Thomas A. Meyer, Assistant Principal in charge of
discipline at St. Xavier High School. Mr. Meyer sum-
moned Mark by telephone in the early evening and sum-
marily expelled him from school. No one else was present
at the meeting. Mark was seventeen years of age at the
time, a Junior at St. Xavier High School and the leading
scholar at the school. He had received no prior notice of
any charges against him and he did not bring his parents
with him.
Earlier that afternoon, Mr. Meyer and Mr. Michael D.
Trainor, the Principal of St. Xavier High School actively
investigated the incident immediately after it had occurred
and conferred with each other. They also received infor-
mation as to alleged statements made by McKenna, the pie
thrower, to Father Paul Borgmann, President of St. Xavier
High School. Father Borgmann also was active in the
investigation, caused McKenna’s arrest and prosecuted him.
These statements implicated Mark according to the testi-
mony of Father Borgmann, and were not made in Mark’s
presence.
Mark’s expulsion had been agreed upon prior thereto
by Mr. Meyer and Mr. Trainor, and they both testified
that their decision was irrevocable. Nothing that Mark
could say or do would mitigate the penalty. While Father
Borgmann is the chief executive of St. Xavier High School,
Mr. Meyer had complete authority to expel Mark Geraci.
It also is apparent that Father Borgmann, like the other
administrators, had pre-judged Mark. After trying to avoid
the elder Geraci fc» two days by representing that he was
out of the city, he finally agreed to talk to him informally
stating, ‘My mind is made up. There is no sense in trying
to change my mind.”
The attitude of the administrators of St. Xavier High
School and their manner of dealing with Mark Geraci in
expelling him without a hearing, “due process”, or pro-
cedural fairness is well illustrated by the testimony of
Thomas A. Meyer:
“Q. Would the record, the conduct record, be a
factor that would be important to you as mat-
ters of — well, to consider as an extenuating
circumstance in determining the severity of the
punishment which you were going to mete to
Mark Geraci?
Not in the case of an act this severe.
oO >
In your opinion, this act was such that nothing
could matter at all to you as far the penalty
of expulsion?
Yes.
There was nothing to mitigate; is that right, sir?
Right.
Nothing he could say or do could mitigate it
once you determined his guilt?
A. Correct.”
Oo >oO>
The Disciplinary Board of St. Xavier High School made
up of faculty members with advisory powers usualy sum-
9
moned in serious disciplinary matters was not convoked.
There can be no dispute that Mark had been pre-judged,
and the Trial Court so found on P. 9 of its Opinion, “These
latter two men had decided on the punishment of expulsion
if Mark were found to be implicated.”
This pre-judgment and summary dismissal without a
hearing completely prevented Mark from clearing himself
or mitigating the alleged offense. Subsequent to his dis-
missal and before trial in the Court of Common Pleas of
Hamilton County Ohio, McKenna, the pie thrower, was
killed in an accident. As a result, Mark was deprived of
the one witness who could have exonerated him by testi-
fying that he threw the pie as a prank of his own rather
than for Mark. This would have established Mark's con-
sistent claim of innocence based on the fact that the plan
had been abandoned as far as he was concerned.
Mark W. Geraci and his father, Joseph A. Geraci, ob-
jected to the summary manner in which Mark was expelled,
the lack of notice, charges, the failure to require the
presence of his parents, an opportunity to present witnesses
or statements in his defense or mitigation and other aspects
of the expulsion which lacked procedural fairness. In
this regard, Mark at all times contended that he was not
guilty because the plan to throw the pie had been aban-
doned. They further contended that St. Xavier High
School was engaged in activity of a public and governmental
nature in the operation of its school. Accordingly, the
Geracis filed suit claiming that the expulsion violated their
Constitutional rights in that they were denied ‘‘due process”
to which they were entitled under the Fourteenth Amend-
ment of the United States Constitution and its equivalent
of procedural fairness which Ohio Courts, by prior deci-
sions, held applicable to disciplinary proceedings in private
schools.
10
Evidence was produced to show that St. Xavier High
School paid no real estate taxes to the State of Ohio, and
its students received the loan of books, as well as transpor-
tation subsidies. Further, it was incorporated and chartered
by the State of Ohio, it was certified by the Ohio Board
of Education, and all of its teachers held certificates or
licenses issued by the Ohio Board of Education. It met
mandatory requirements of the Statutes and regulations of
the Ohio Board of Education as to curriculum, hours of
attendance, and otherwise complied with the standards
which were incumbent on public schools. Moreover, it filed
reports with the Ohio Board of Education and was periodi-
cally visited and inspected by representatives of the Ohio
Board of Education and other accrediting boards.
Also, the public function of so-called private schools is
attested to by the fact that the State of Ohio spends an aver-
age of $180 to $200 per annum in “Auxiliary Services” aid
for each student for a total of $44,000,000 per year.
Joseph A. Geraci, the father had made a deposit on the
tuition for the 1978-1979 school year for his son and the
Trial Court found that a contract for the education of
Mark existed between St. Xavier High School and the
Petitioners for the ensuing year.
While Mark had made contact with Tom McKenna for
the purpose of throwing the pie, he had done so on behalf
of the six other students and he claimed that before the
pie was thrown, the conspiracy was abandoned, and Mc-
Kenna threw the pie on his own. Subsequent to the
expulsion, the other students involved made know their
implication in the conspiracy to Father Paul Borgmann,
the President of St. Xavier High School, and asked that
they be equally punished with Mark Geraci. However,
Father Borgmann ignored them and no disciplinary pro-
ceedings were ever brought against them.
11
Mark subsequently enrolled at Moeller High School,
another Catholic parochial high school in Cincinnati, Ohio,
and he will graduate in June, 1979. However, St. Xavier
High School was particularly meaningful to him because
it is regarded as the leading Catholic high school in the
country from an academic standpoint.
Mark’s expulsion caused emotional and physical injuries
to both him and his father which affected him psychologi-
cally as is apparent from his testimony:
“Also, it damaged me as far as my ideas of justice and
what it was all about. I didn’t think I was treated
fairly. I didn’t think I had a chance to really have
an impartial hearing with anybody present that could
back up my story, you know.
And, also, to realize that three years of hard study at
this school, I didn’t feel was taken into any consider-
ation or appreciated by the people who were making
the decisions,. . .”
The Constitutional question of the lack of ‘due process”
was raised at every opportunity in this case commencing
with the filing of the Complaint. This is evident from the
various Opinions of the Courts which are appended here-
to on pages 5a and 17a of the Appendix, in which each
Court recognized Petitioners’ claim of constitutional rights
which were denied them as well as in the Notices of Appeal
to the Ohio Court of Appeals and the Supreme Court.
12
ARGUMENT FOR ALLOWANCE OF
WRIT OF CERTIORARI
The decision as to whether or not private or parochial
schools are subject to the “due process” clause of the
Fourteenth Amendment of the United States Constitution
is of great importance.
It has been determined by this Court in Goss v. Lopez,
419 U.S. 565; 95 Sup. Ct. Rep. 729 (1975) that disciplinary
proceedings in public schools are of the gravest importance
to all students and parents alike. This case pointed out
that disciplinary proceedings become part of the record of
the student and seriously affect his right to further educa-
tional and employment opportunities.
The suspension of a student for less than ten days with-
out a hearing in accordance with Ohio Statutes was held
unconstitutional.
A basis for the application of the Fourteenth Amend-
ment to St. Xavier High School or any other private school
is that its activity in educating children in a state where
public education is mandatory constitutes the performance
of a public or governmental function. While it is clear
that St. Xavier High School is not a part of the State of
Ohio, its educational activities are open to all races and
religions, and are such that they constitute “state action”’
subject to the Fourteenth Amendment of the United States
Constitution.
This Court has decided that activity of a public or gov-
ernmental nature, even when performed by private persons
on private property can be considered “‘state action” subject
to the Constitution of the United States, particularly as to
exercise of freedom of speech or of the press. While this
Court has modified some of its original rulings in the cases
cited, the existence of the doctrine contended for by the
13
Petitioners was recognized in Amalgamated Food Em-
ployees Union Local 590 v. Logen Valley Plaza, Inc., 391
U.S. 308 (1968) involving picketing in a labor dispute
carried on in a shopping center; Lloyd Corp., Ltd. v.
Tanner, 407 U.S. 551 (1972) involving the distribution of
handbills protesting the Viet Nam War; Marsh v. Alabama,
326 U.S. 501 (1946) involving distribution of religious
literature in a company owned town; and Terry v. Adams,
345 U.S. 461 (1953) involving the exclusion of blacks
from a privately conducted Democratic primary. How-
ever, in Hudgens v. N.L.R.B., 424 U.S. 507 (1975), the
doctrine was to some extent modified in that activity inci-
dent to a labor dispute carried on in a shopping center was
not protected by the United States Constitution. Never-
theless, the Court has recognized that the doctrine of
“public or governmental function” does exist when the
activity is very closely allied to that carried on by the State,
as in Marsh v. Alabama, 326 U.S. 501 (1946) which has
been continuously approved by this Court.
In Lloyd Corp. v. Tanner, 407 U.S. 551, 569, this Court
stated the purport of Marsh v. Alabama, supra:
“In effect, the owner of the company town was per-
forming the full spectrum of municipal powers and
stood in the shoes of the State.”
To the same effect is the language in Marsh v. Alabama,
326 U.S. 501, 506:
‘Ownership does not always mean full dominion . . .”
‘.. . Since these facilities are built and operated pri-
marily to benefit the public, and since their operation
is essentially a public function, it is subject to State
regulation.”
In accord is Evans v. Newton, 382 U.S. 296, later referred
14
to in this Petition. Reference is made to P. 299 where this
Court again recognizes the theory of State action:
“That is to say, when private individuals or groups
are endowed by the State with powers or functions
governmental in nature they become agencies or in-
strumentalities of the State and subject to its Consti-
tutional limitations.”
The Constitutional claim of “due process’ has been
asserted by the Petitioners with reference to the activities
for which the Respondents were organized, namely its
existence as an educational institution and the furnishing
of education to young citizens of the State of Ohio. In
this respect, this case differs from Lloyd Corp. Ltd. vs.
Tanner, 407 U.S. 551 wherein this Court upheld the
right of the owners of enclosed shopping centers to prohibit
the distribution of handbills on their premises. This
Court pointed out on P. 564 of Lloyd:
“The handbilling by the Respondents in the malls of
Lloyd Center had no relation to any purpose for which
the center was built and being used.”
The case at Bar differs from Jackson v. Metropolitan
Edison Company, 419 U.S. 345 (1974) and many of the
other cases decided in that they concern persons and
corporations engaged in business and activities carried on
for profit, whereas St. Xavier High School is a corporation
not for profit engaged in a public or charitable activity.
Consequently doctors, optometrists, lawyers and grocers
which the Court likewise found on P. 354 not to be gov-
ernmental or public in nature would not constitute State
action. The mere fact that they, like Metropolitan Edison
Company, a utility, were licensed by the State did not
make them subject to the United States Constitution.
Where the activity was not of a business nature as in
15
Terry v. Adams, 345 U.S. 461 (1953), or Evans v. Newton,
382 U.S. 296 (1965) which involved the operation of a
private park of a public nature, this Court had no difficulty
in determining that such activities carried on by private
persons were subject to the Fourteenth Amendment of
the United States Constitution.
Also, there is considerable logic in concluding that the
Fourteenth Amendment, as well as other provisions of the
Constitution are enforceable against private citizens, as
well as against states. This Court has recognized the
validity of this argument in Griffin v. Breckenridge, 403
U.S. 88 wherein it upheld the validity of the Civil Rights
Act.
Ohio has a compulsory school attendance law which
requires compulsory attendance of young people from
six to eighteen years of age in schools which must meet
the curriculum and other requirements of the Ohio law
and the regulations of the Ohio Board of Education
(3321.04 O.R.C. and 3321.07 O.R.C. appended hereto on
p. 5a of the Appendix.)
A parent who fails to send his child to school in violation
of Section 3321.04 O.R.C. is subject to criminal punish-
ment under Section 3321.38 O.R.C. and 3321.99 O.R.C.
Section 3321.04(C) O.R.C. provides:
“The board of education of the city, exempted vil-
lage, or county school district in which a public school
is located or the governing authorities of a private or
parochial school may in the rules governing the
discipline in such schools, prescribe the authority by
which and the manner in which any child may be ex-
cused for absence from such school for good and suf-
ficient reasons.
The state board of education may by rule prescribe
conditions governing the issuance of excuses, which
16
shall be binding upon the authorities empowered to
issue them,”
(Emphasis Ours)
Section 3321,04(¢) O.R.C, is particularly important be-
cause it indicates that the State of Ohio has conferred
disciplinary powers to suspend students in private or
parochial schools, A suspension of a student is a valid
excuse for his non-attendance, While this Court has rec:
ognized that “education is perhaps the most important
function of state and local governments”, Brown v, Board
of Education, 347 U.S, 4838, 498, it has also recognized that
‘Parochial schools, in addition to their sectarian function,
perform the task of secular education”, ‘Thus, Head Note
No. 8 of Board of Education of Central School District v.
Allen, Commissioner, 3892 U.S, 286, is as follows:
“Parochial schools, in addition to their sectarian func
tion, perform the task of secular education, and, on
the basis of this meager record, the Court cannot agree
with appellants that all teaching in a sectarian school
is religious or that the intertwining of secular and
religious training is such that secular textbooks fur-
nished to students are in fact instrumental in teaching
religion, Pp, 245-248,”
The Petitioners have not found any decision of this Court
where the issue raised by them as to the right of “due
process” in disciplinary proceedings in private schools has
been determined by this Court. No First Amendment
rights were asserted by the Respondents at any time in any
of the proceedings in the State Courts,
The decision of this Court in National Labor Relations
Board v. The Catholic Bishop of Chicago, No, 77-752
decided March 21, 1979, is not controlling in this case,
As the Court pointed out, the relationship between the
17
Catholic school and its teachers was unique and vital to
the existence of the school, so that the attempt to compel
collective bargaining would violate First Amendment
rights,
It is not the intention or purpose of the Petitioners to
control the discretion of St, Xavier High School in the
discipline of its students, All that the Petitioners seek is
procedural fairness, namely the right to be heard at a
meaningful time in a meaningful manner before unbiased
and unprejudiced persons, St, Xavier High School had
such machinery available in the form of a Disciplinary
Board, which it did not employ,
The only available decisions to date have been of Courts
inferior to this Court and their decisions have not been
unanimous, Some have upheld and others have denied
“due process” in the case of private and parochial schools.
The authorities to the effect that there is a right to “due
process”, or the right to a fair hearing are
Buckion v. National Collegiate Athletic Association,
866 *, Supp. 1152 (D.C, Mass.) involving the right
of stulents to engage in intercollegiate athletics at
Boston 'niversity, a private denominational institu:
tional,
Slaughter v. Brigham Young University, 514 F. (2d)
622, relating to disciplinary proceedings in a Mormon
University,
Belk v. Chancellor of Washington University, 336 F.
Supp. 45 (E.D. Mo.) dealing with Washington Uni-
versity, a private school at St. Louis,
Presseisen v. Swarthmore, 71 F.R.D, (E.D. Pa.) con.
cerning Swarthmore College, a private institution in
Pennsylvania,
Hammond v, University of Tampa, 844 F, (2d) 951,
involving a private institution which made use of city
surplus buildings.
18
In addition, legal scholars have commented very strongly
that the public function of education in and of itself by
a private school is sufficient to subject it to the Fourteenth
Amendment of the United States Constitution, In 8/
Harvard Law Review 1045, 1060 thia position is thus
stated;
“Rather than examine separately the connections
between each school or department and the state, all
private schools might be found subject to the four
teenth amendment on the ground that they fulfill a
‘public function’,
Other pertinent portions of this Law Review Article are
as follows on P, 1060;
“Analogous reasoning suggests that state action may
be found where a state's own allocation of educational
resources is planned in relation to, and influenced by,
the number of children in private and parochial
schools; where official accreditation and laws enabling
the schools to grant diplomas provide a legal setti
for the private schools; and where tax exemptions ond
other forms of aid such as bussing support the schools
so that they can continue to do their share,”
Likewise on P, 106):
“A stronger case can be made for grade and high
schools where the states have actively undertaken to
provide all children with schooling, especially since
education is considered vital in the peubentien for
future participation in the democratic process,”
In accord is 48 N.Y.U, Law Review 1151, 1146;
“The public function doctrine provides a potential
means of avoiding the shortcomings inherent in tra-
ditional fourteenth amendment theories of state action,
This doctrine focuses on the nature of a challenged
i
19
activity, rather than on the nature of the state's
involvement with the entity periorming or intimately
connected with that activity. Under the doctrine,
when private entities undertake to exercise powers
or functions governmental in nature, they become
instruments of the state and are thus subject to four-
teenth amendment limitations . . .
..» The public function doctrine might be used to
establish fourteenth amendment jurisdiction over
private schools, Private schools perform educational
tasks which are usually performed by the state,”
To the same effect that private education is a public
function is 20 Case — Western Reserve Law Review 378,
(1969),
It cannot be overemphasized that the failure to accord
“due process” to students has the same undesirable and
deleterious effect regardless of whether the school is pri-
vate, parochial, or public — which is the more reason for
the application of the Fourteenth Amendment. The
results which this Court has deplored in cases involving lack
of “due process’ in schools are exactly the same regardless
of the nature of the school in a sphere of the greatest public
concern, Education is not a private matter, The public
policy of the state is involved,
This point was developed at the trial of this case in the
testimony of Dr, Claroy Pruden, Professor at the Graduate
School of Xavier University, who teaches the subject of
discipline, The following is an excerpt of her testimony:
“Q. What importance, if any, do you ascribe to an
opportunity for a fair and impartial hearing that
accords the student the opportunity to defend
himself, present proof before unbiased people
who will determine the penalty?
A. Are you asking my opinion?
20
Yes, and I'm talking about children.
All right. Basically I feel that a student, for
whatever transgression, has a right to defend
themself, has a right to discuss the prose and
cons or has the right to make amends for their
error or transgression, whatever you want to call
it.
I feel that punishment that is meted out in a
controlled situation in the sense that it totally
and completely cuts the student off from any
form of retribution or what have you — is
negative.”
> ©
She also testified as to the effect of expulsion:
“However, for a student that has positive feelings about
the educational process and about the learning process,
this can have very detrimental and very negative
effects upon that student in that they feel that their
education has been terminated. They may — and if it
is a bright, well-adapted student, one with good ego
functioning, they may well begin to seriously question
authority, they may begin to question Christian prin-
ciples and may, really, really question their own moti-
vation in terms of has all this been worth it, you know,
the work that I’ve done.”
The Respondents have pictured in the State Courts the
dire consequences of the interference of courts in the
discipline of private and parochial schools. As in the
dissenting Opinions in this Court in cases which extended
“due process” and Constitutional rights in public schools,
they proclaimed that “due process” would cause drastic
interference with the operation of the schools, multiplicity
of legal actions, timidity on the part of teachers and school
administrators, and many other serious « »nsequences which
have not occurred. Public schools still exist and the Con-
stitution of the United States prevails.
21
In spite of their dissents, the dissenting justices have
recognized the importance of school discipline for the
training of good citizens. We refer to Goss v. Lopez, 419
U.S. 565, 593, wherein the following appears:
“The classroom is the laboratory in which this lesson
of life is best learned.”
Mr. Justice Black summed it up:
“School discipline, like parental discipline, is an
integral and important part of training our children
to be good citizens — to be better citizens.” Tinker,
393 U.S., at 524, 89 S. Ct. at 746 (Dissenting opinion) .
Petitioners’ position that good citizenship is promoted
only by fair discipline is echoed by 58 Marquette Law Re-
view, 703, 739, in which it is stated:
“Students have a peculiar need for receiving fair treat-
ment. Ina time when the ‘system’ is being challenged
on all fronts, students are looking for evidence that
they live in a fair society in which rules, not the arbi-
trary action of men, governs. If their first contact
with the ‘system’ results in feelings of unfairness and
bitterness, the damage done may be irreparable.”
17,704,000 students enrolled in private or parochial
schools at primary and secondary levels bear witness to the
importance of the question involved, namely the right of
students in such schools to “due process” and to be treated
fairly by according them “procedural fairness” in disci-
plinary proceedings.
The Ohio courts have recognized that students have a
right to be treated fairly by private schools and are entitled
to procedural fairness and “even handed justice” in the
matter of discipline, Koblitz v. Western Reserve University,
‘ 22
21 Oh. Cir. Ct. 144 P. 158 and Schoppelrei v. Franklin Uni-
versity, 1! Oh. App. (2d) 62.
In this regard, it must be pointed out that Mark and
his father were denied ‘due process” for the further reason
that the grounds for expulsion set forth in the Student
Handbook and which the Court found authorized his
expulsion were vague and lacked definiteness. Neither
“conduct detrimental to the reputation of the school” nor
“Immorality in talk or action” meet the Constitutional
requirement as to what conduct is prohibited or give notice
of the kind of conduct which is ground for expulsion. Since
the trial judge considered Mark's guilt on the basis of the
Criminal Statutes of the State of Ohio, the same standards
should be applied as govern such cases. Such vague
language denies the offender ‘“‘due process”, United States
v. Harriss, 347 U.S. 612, and Raley v. Ohio, 360 U.S. 423.
Specificity is absolutely required in disorderly conduct
and breach of the peace statutes and regulations, Cox v.
Louisiana, 379 U.S. 536 and Garner v. Louisiana, 368 U.S.
157.
Mark’s graduation from another high school will not
render this case moot since a real viable controversy would
still be pending before the Courts.
The First Count of the Complaint asked for relief which
was not limited to his restoration as a student, but also
asked “for all other relief to which the Plaintiffs may be
entitled either at law or equity”.
The Second Count of the Complaint asked the Court
“to declare whether the attempted expulsion was in vio-
lation of the contractual relation between the Plaintiffs
and Defendants or otherwise was valid and in accordance
with law, and to grant all relief proper and necessary in
this cause, including setting aside the alleged expulsion”.
(Emphasis Ours)
23
Under the prayer for relief it is clear that the Plaintiffs
sought a determination as to the validity of the expulsion
and to have it expunged from the record if it was invalid,
as well as other relief which could conceivably include a
claim for money damages for breach of contract. 2721.09
O.R.C. provides for the granting of “further relief based
on a declaratory judgment or decree previously granted by
way of a separate petition to the Court”.
The expunction of the expulsion from the records after
the graduation of a high school student is still available
as a remedy which prevents the case from being moot,
Board of School Commissioners of the City of Indianapolis
v. Jacob, 420 U.S. 128. The fact that some relief can still
be granted prevents the case from being moot, Franks v.
Bowman Transportation Company, 424 U.S. 753, 756,
American Life and Accident Insurance Company of Ken-
tucky v. Jones, 152 Oh. St. 287, 297, Miner v. Witt, 82
Oh. St. 237, and Culver v. City of Warren, 84 Oh. App.
373, 393.
CONCLUSION
Petitioners submit that the question on appeal is such
as to clearly show that their rights under the Constitution
of the United States have been violated in more than one
respect and the immunities and privileges which are
granted by the Constitution of the United States have been
completely denied to them. Questions of great concern
have been raised which are national in character and
which should be determined.
No questions of First Amendment rights is involved in
this case. None was ever raised in the State Courts.
This Court has shown an increasing awareness of the
rights of young people. In Jn Re Gault, 387 U.S. 1, the
24
rights of juveniles in criminal proceedings were placed on
a par with those of adults. In addition, this Court has
upheld the rights of students in parochial schools to books,
transportation, and other services equal to those of public
schools, while at the same time placing restraints on the
parochial schools themselves, Wolman v. Walter, 433 U.S.
229.
The right of parents to send their children to parochial
schools is not a matter of freedom of religion under the
First Amendment, but rests entirely on the right of parents
to direct the upbringing and education of their children
which this Court recognized was a “Due Process” right
under the Fourteenth Amendment, Pierce, Gov. of Oregon
v. Society of Sisters, 268 U.S. 510.
Similarly, the Petitioner, Joseph A. Geraci bases his
right to the continued education of his son at St. Xavier
High School on the Fourteenth Amendment to the United
States Constitution. Moreover, the failure of the Ohio
Courts to follow its precedents entitling the student in a
private school to procedural fairness, the equivalent of “due
process” was in violation of the Fourteenth Amendment.
The failure of the state judiciary to afford “due process”
is a violation of the Fourteenth Amendment, NAACP v.
Alabama, 357 U.S. 449; Shelley v. Kraemer, 334 U.S. 1.
The pre-judgment by the Respondents as to the penalty
is the most injurous aspect of the proceedings. In advance
of the meeting with the Petitioner, they chose the most
extreme of four possible penalties, namely “‘jugging” (de-
tention) , demerits, suspension and expulsion. This case
would not have arisen if any of the lesser penalties had been
chosen.
The importance of affording fairness to young people
has been emphasized by this Court on more than one oc-
casion. In 1943, Mr. Justice Jackson wrote:
25
“The Fourteenth Amendment, as now applied to the
States, protects the citizens against the State itself and
all of its creatures — Boards of Education not excepted.
These have, of course, important, delicate, and highly
discretionary functions, but none that they may not
perform within the limits to the Bill of Rights. That
they are educating the young for citizenship is reason
for scrupulous protection of Constitutional freedoms
of the individual, if we are not to strangle the free
mind at its source and teach youth to discount im-
portant principles of our government as mere plati-
tudes.” West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 637.
“Due process of law is the primary and indispensable
foundation of individual freedom...” As Mr. Justice
Frankfurter has said:
“The history of American freedom is, in no small
measure the history of procedure.”
“Under our Constitution, the condition of being a boy
does not justify a kangaroo court.”
“Age 15 is a tender and difficult age for a boy of any
race. He cannot be judged by the more exacting
standards of maturity. That which would leave a
man cold and unimpressed can overawe and over-
whelm a lad in his early teens. This is the period of
great instability which the crisis of adolescence pro-
duces.” In Re Gault, 387 U.S. 1, 20, 28, 45.
Moreover, Lockett v. State of Ohio, 98 Sup. Ct. Rep.
2954, demonstrates that the Respondents did not accord
Mark the same consideration which this Court has decided
must be given to even the worst criminals. Reference is
made to the fact that in capital cases a state statute is
unconstitutional and a person is deprived of “due process”
because the Court is not permitted to consider all extenu-
ating circumstances including lack of intent, whether the
26
offender was a principal or an accomplice, and the prior
record before imposing sentence.
Further, this Court has consistently held that ‘due
process” cannot be denied on the ground that “due process”
would have led to the same result or because the party
was guilty, Coe v. Armour Fertilizer Works, 237 U.S. 413;
New England Divisions Case, 261 U.S. 185; Armstrong v.
Manzo, 380 U.S. 545.
Millions of students in private and parochial schools and
their parents want to know what their rights are in disci-
plinary proceedings. It is a vital issue for them as to
whether they are to be treated fairly and given “due pro-
cess’’ as is due a citizen in a democracy, or instead to be
ruled by arbitrary fiat.
This Court should take jurisdiction because it has never
decided the issue of whether the Fourteenth Amendment
applies to private or parochial schools. The furthering of
good citizenship of students by the practice of democracy
and fair dealing by private schools is reason enough why
this vital issue should be considered. Dr. Claroy Pruden,
Professor of the Graduate School of Xavier University, a
Catholic Jesuit Institution, testified at the trial that courses
relating to educational discipline which she teaches at
the University attended largely by Catholic teachers and
administrators emphasized the necessity and propriety of
according students “due process”. In addition, the finan-
cial considerations caused by the transfer of students from
Catholic schools to public schools by reason of unfair
disciplinary procedures in such schools could conceivably
create havoc with the public school system. 17,704,000
students attend private and parochial schools, and 43,-
346,000 attend public schools."
1 1978 Statistical Abstract of the United States published by United
States Department of Commerce, Bureau of the Census.
27
While there is language in prior decisions indicating the
Court’s view with regard to private and parochial schools,
the same constitute obiter dictum and are not binding on
this Court, Carroll v. Lessee of Carroll, 57 U.S. 275;
Pacific Steamship Company v. Peterson, 278 U.S. 130.
Petitioners submit that a Writ of Certiorari should issue
to the Supreme Court of Ohio for review of the final
orders and judgments entered by it on March 28, 1979.
Respectfully submitted,
Hyman B. Rosen of Rosen and Rosen,
Trial Attorney for Petitioners,
Mark W. Geraci and Joseph A. Geraci,
1005 First National Bank Building,
Fourth and Walnut Streets,
Cincinnati, Ohio 45202
(513) 621-0828
APPENDIX A
THE SUPREME COURT OF OHIO
‘ THE STATE OF OHIO, ) 1979 TERM
City of Columbus. ) To wit: March 23, 1979
MARK W. GERACI, A MINOR,
Appellants,
vs.
ST. XAVIER HIGH SCHOOL ET AL.,
Appellees.
No. 79-136
APPEAL FROM THE COURT OF APPEALS
FOR HAMILTON COUNTY
This cause, here on appeal as of right from the Court of
Appeals for Hamilton County, was heard in the manner
prescribed by law, and, no motion to dismiss such appeal
having been filed, the Court sua sponte dismisses the ap-
peal for the reason that no substantial constitutional ques-
tion exists herein.
It is further ordered that a copy of this entry be certified
to the Clerk of the Court of Appeals for Hamilton County
, for entry.
' I, Thomas L. Startzman, Clerk of the Supreme Court
of Ohio, certify that the foregoing entry was correctly
copied from the Journal of this Court.
Witness my hand and the seal of
the Court this ........_. day of
oa ex Atle, Me wee
aveak COVE Reh eee Clerk
eee ee ee Deputy
Za
APPENDIX B
THE SUPREME COURT OF OHIO
THE STATE OF OHIO, ) 1979 TERM
City of Columbus, ) ‘To wit; Mareh 28, 1979
[ee -
MARK W. GERACI, A MINOR,
Appellants,
V8.
ST, XAVIER HIGH SCHOOL ET AL,,
Appellees,
No, 79-136
MOTION FOR AN ORDER DIRECTING
THE COURT OF APPEALS
FOR HAMILTON COUNTY
TO CERTIFY ITS RECORD
It is ordered by the Court that this motion is overruled,
COSTS:
Motion Fee, $20.00, paid by Hyman B, Rosen
I, Thomas L, Starteman, Clerk of the Supreme Court of
Ohio, certify that the foregoing entry was correctly copied
from the Journal of this Court,
Witness my hand and the seal of
the Court this day of
19
Clerk
Deputy
_—=
Sa
APPENDIX C
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
AND
THE SUPREME COURT OF THE STATE OF OHIO
NO, C-780581
MARK W, GERACI, A Minor
By and Through
JOSEPH A, GERACI, His
Father and Next Friend,
and
JOSEPH A, GERACI,
Plaintiffs-Appellants,
va.
ST, XAVIER HIGH SCHOOL,
REV, PAUL BORGMANN,
MICHAEL D, TRAINOR,
THOMAS A, MEYER,
REV, ROBERT O'CONNER,
RICHARD B, BERNING,
RICHARD J, PIENING,
JAMES F, CAHILL,
REV. DANIEL L, FLAHERTY,
and
SOCIETY OF JESUS,
Defendants-Appellees,
da
NOTICE OF APPEAL
(Filed Court of Appeals January 22, 1979)
Come now Plaintiffs-Appellants Mark W, Geraci, pres-
ently eighteen years of age, and Joseph A. Geraci, and
give Notice of Appeal from the judgment entered in the
Court of Appeals of Hamilton County, First Appellate
District of Ohio on the 27th day of December, 1978, which
affirmed the judgment in favor of the Defendants-Appellees
and against the Plaintiffs-Appellants, rendered by the Court
of Common Pleas of Hamilton County, Ohio, Said Appeal
is to the Supreme Court of Ohio,
This case is one which did not originate in the Court
of Appeals.
This case involves a substantial Constitutional Question,
concerning namely the Fourteenth Amendment of the
United States Constitution and is of public or great gen-
eral interest,
/s/ HYMAN B, ROSEN
Hyman B, Rosen of Rosen and Rosen,
Trial Attorney for Plaintiffs-Appellants,
1005 First National Bank Building,
Fourth and Walnut Streets,
Cincinnati, Ohio 45202
621-0828
(CERTIFICATE OF SERVICE OMITTED]
5a
APPENDIX D
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
NO, C-780581
MARK W, GERACIL, A Minor
By and Through
JOSEPH A, GERACI, His
Father and Next Friend,
and
JOSEPH A, GERACI,
Plaintiffs-Appellants,
Vs.
ST, XAVIER HIGH SCHOOL,
REV. PAUL BORGMANN,
MICHAEL D, TRAINOR,
THOMAS A, MEYER,
REV. ROBERT O'CONNER,
RICHARD B. BERNING,
RICHARD J, PIENING,
JAMES F, CAHILL,
REV. DANIEL L, FLAHERTY
and
SOCIETY OF JESUS,
Defendants: Appellees.
6a
APPEAL FROM THE COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
OPINION
(Filed December 27, 1978)
Messrs. Rosen and Rosen, Hyman B. Rosen of counsel,
1005 First National Bank Buiding, Fourth and Walnut
Streets, Cincinnati, Ohio 45202, for Plaintiffs-Appellants.
Messrs. Dinsmore, Shohl, Coates and Deupree, Gary D.
Bullock and William L. Blum of counsel, 2100 Fountain
Square Plaza, 511 Walnut Street, Cincinnati, Ohio 45202,
for Defendants-Appellees.
BETTMAN, J.
Appellants, Mark Geraci and his father, brought this ac-
tion for a declaratory judgment and for injunctive relief
against appellees, St. Xavier High School and various offi-
cials thereof, seeking to have Mark reinstated as a student
in good standing in said high school. St. Xavier is a
private, parochial, college preparatory school operated by
the Society of Jesus. It admits students of any race, color,
national or ethnic origin, or religious affiliation. Mark was
a student from his freshman year (9th grade) until his
expulsion on June 2, 1978, the end of his junior year.
This appeal raises basically two issues. First, whether ap-
pellants’ constitutional right to due process has applica-
tion to the conduct of disciplinary proceedings by a private
school. Secondly, whether appellees’ handling of Mark's
expulsion was arbitrary and unreasonable and therefore a
breach of appellants’ contract of enrollment.
7a
Appellants’ first assignment of error complains that the
trial court erred in holding that St. Xavier's disciplinary
proceedings are not controlled by Fourteenth Amendment
due process requirements.
Historically, our government has permitted all private as-
sociations to operate free of government interference except
in those situations where the actions of these associations
may have broad societal effects. As a result of this policy
of minimal governmental interference, private schools have
been allowed to control their own affairs as long as they
met basic standards in education. The Fourteenth Amend-
ment has been applied in a manner consistent with this
tradition.
The due process requirements of the Fourteenth Amend-
ment are only applicable to situations involving “state ac-
tion.” The basic issue raised by this assignment is there-
fore whether St. Xavier's disciplinary proceedings const:-
tute state action. It has been clearly established that a
student facing misconduct charges in a public high school
is entitled to the protection of the Fourteenth Amendment.
Goss v. Lopez (1975), 419 U.S. 565. A determination of
whether the actions of a ‘‘private’’ school constitute state
action requires an analysis of all the facts and circumstances
of the case.
Courts have employed several modes of analysis in deter-
mining whether public or private action is involved. State
action will be found “in the exercise by a private entity
of powers traditionally exclusively reserved to the State;”
i.e. if this entity is performing a “public function.” Jackson
v. Metropolitan Edison Co. (1974), 419 U.S. 345, 352.
Education is not now and has never been an exclusive
function of the state. Lorentzen v. Boston College (D. Mass.
1977), 440 F. Supp. 464, aff'd (Ist Cir. 1978), 577 F.2d
8a
720; Powe v. Miles (2d Cir. 1968), 407 F.2d 73." Privately
controlled and administered educational institutions have
a long and distinguished history in this country.
Where, as in this case, the enterprise in question is regu-
lated by the state, state action will be found if there is
“a sufficiently close nexus between the State and the chal-
lenged action of the regulated entity so that the action
of the latter may be fairly treated as that of the State itself.”
Jackson, supra at 351. This mode of analysis would here
focus on the specific action of expulsion from St. Xavier.
The state regulation of St. Xavier is relatively minimal.
Our attention has been directed to nothing indicating state
involvement in St. Xavier's disciplinary process. To the
extent that appellant may be correct in asserting that a
private school’s decision to suspend or expel a student is
sanctioned by R. C. 3321.04(C), this still does not in-
volve the state in the decision-making process.
Even without state involvement in the disciplinary pro-
ceedings, state action may still be found if the state is so
entwined with the administration and operation of the
school that a ‘symbiotic relationship” has developed. Jack-
son, supra at 357; Burton v. Wilmington Parking Authori-
ty (1961) , 365 U.S. 715. Determining whether a symbiotic
relationship has developed requires an analysis of all the
facts and circumstances of the state’s involvement with
St. Xavier.
St. Xavier is approved by the state as a high school. It
files annual reports with the state dealing with its cur-
riculum, class loads, number of teachers, etc. The teach-
ers at St. Xavier all have state certificates of qualification.
The state provides, on loan, certain standard texibooks and
' We find the circumstances and reasoning of Buckton v. National
Collegiate Athletic Association (D. Mass. 1973), 366 F. Supp. 1152
inapposite.
9a
furnishes transportation to students. The school is ex-
empted from state taxation. However, other than ascertain-
ing that the school meets minimum state standards for a
high school, the state exercises no control over the school
whatsoever. This is certainly not the sort of pervasive state
involvement required for a finding of a symbiotic state
action. See Powe v. Miles (2d Cir. 1968), 407 F.2d 73;
Rackin v. Univ. of Pa. (E. D. Pa. 1974) , 386 F. Supp. 992.
Our conclusion that there is no state action in the dis-
ciplinary proceedings of a private high school such as St.
Xavier is supported by Wisch v. Sanford School, Inc. (D.C.
Del. 1976) , 420 F. Supp. 1310; Bright v. Isenbarger (N.D.
Ind. 1970), 314 F. Supp. 1382; and a long line of federal
cases involving private universities. The assignment is, ac-
cordingly, overruled.
Appellants’ assignments of error two, three and four
maintain that the trial court erred in finding that the
contract between the parties was breached by Mark’s con-
duct and not by the procedures used by appellees in de-
termining to expel him.
Mr. Geraci had paid Mark’s tuition for his junior year
and made the required deposit toward the senior year tu-
ition. The parties are in agreement that this gave rise
to a contract that St. Xavier would continue to provide edu-
cation to Mark so long as he met its academic and disci-
plinary standards. They are further in agreement that the
catalogue, describing St. Xavier High School’s academic
program and its standards and requirements constituted a
part of the terms and conditions of such contract. The
catalogue (Exhibit 1) provides in pertinent parts:
By the act of registering at St. Xavier High School,
a student and his parents (or guardians) understand
and agree to pursue the educational objectives and
10a
practices as stated in this catalogue and to observe
the disciplinary code of the school.
Disciplinary Norms
The St. Xavier norms of conduct are predicated on
two premises: first, that every student has the right
to certain situations (such as the protection of his
personal property, the physical integrity of the fa-
cilities, an atmosphere conducive to personal growth
and development) and, second, that every student
has the duty to preserve these rights for others. The
underlying concept is not one of legalisms, punish-
ments, or discipline for discipline’s sake. Rather, it
is one of personal and corporate privileges bound of
necessity to personal and corporate responsibilities.
Since no list of norms can cover every situation, the
administration presumes that common sense, mature
judgment, and Christian charity are the guides by
which every St. Xavier student should measure his
actions.
The assistant principal is in charge of all matters
of discipline, .. .
Expulsion The following offenses are grounds for
expulsion:
1. conduct detrimental to the reputation of the
school. . . .
8. immorality in talk or action.
Appellants understood that Xavier maintained high stand-
ards of deportment.
The evidence before the trial court was as follows. On
the final day of the school year Tom McKenna, a student
at Moeller High School, entered St. Xavier High School,
——
ate ps
lla
went to the classroom where Mark Geraci and his class-
mates were taking a final test and threw a meringue pie
in the face of Mr. Downie, the teacher. Pandemonium en-
sued involving teachers and students. By Mark’s own tes-
timony, several weeks before he and some fellow students
had decided it would be a “funny prank” to get McKenna
to “pie” Mr. Downie. “I called Tom. . . and he said he
would go along with it.” The original plan was that Mark
would collect $50.00 from the group to pay McKenna.
He did not, however, collect any money. Nevertheless,
the evening preceding the last day of school, when Mark
called McKenna to ask him to a party, McKenna asked
‘whatever happened about the pie throwing.” Geraci told
him he had not collected any money and McKenna said
“he might come over and do it anyway.” Mark made no
response to this statement. On McKenna’s inquiry Geraci
told him the room number of the class where Mr. Downie
would be teaching and, on further inquiry, which door of
the building to enter. At McKenna’s request, Geraci called
another Moeller student to arrange for transportation for
McKenna.
The very recital of the above facts makes abundantly
clear that Geraci aided and abetted McKenna’s throwing
of the pie in the face of his teacher, Mr. Downie, an act
patently “immoral,” ‘detrimental to the reputation of the
school” and violative of Geraci’s acknowledged duty to ex-
ercise “common sense, mature judgment, and Christian
charity.” The trial court’s finding that Geraci’s acts con-
stituted a breach of the contract with St. Xavier is, there-
fore, fully supported by the evidence.
Aithough, as hereinbefore discussed, a private school’s
disciplinary proceedings are not controlled by the due pro-
cess clause, and accordingly such schools have broad discre-
tion in making rules and setting up procedures for their
12a
enforcement, nevertheless, under its broad equitable powers
a court will intervene where such discretion is abused
or the proceedings do not comport with fundamental fair-
ness. Schoppelrei v. Franklin University (10th Dist. 1967) ,
11 Ohio App. 2d 60, 228 N.E.2d 334; Koblitz v. Western
Reserve (8th Dist. 1901), 11 O.C.D. 515, 21 O.C.C. 144.
The record shows that Mr. Meyer, the Assistant Prin-
cipal of Xavier in charge of discipline, called Mark to his
office several hours after the event. At that time Mark,
though protesting that he did not really expect McKenna
to go through with it, admitted substantially all the ele-
ments of his involvement, hereinbefore set out. Meyer
forthwith advised him that he was expelled. The transcript
further shows that before this decision was finalized Mr.
Meyer, Mr. Trainor, the Principal, and Father Borgmann,
President of St. Xavier, all discussed and considered the
matter; that Meyer discussed it with Mr. Geraci; that
Trainor discussed it with Mr. Geraci and that Father
Borgmann discussed it with both father and son. The tes-
timony as to these discussions shows an appreciation and
consideration by appellees of Mark’s previously unblem-
ished disciplinary record and his academic excellence, an
understanding of how much Xavier meant to appellants
and a genuine human concern for them. On the basis
of the record we cannot say that appellees abused their
discretion nor that the procedures were unfair.
The trial court did not err in holding that Mark’s ex-
pulsion was just, proper, and in accordance with the con-
tract between the parties and did not constitute an abuse
of discretion. Assignments two, three and four are over-
ruled.
The fifth and sixth errors assigned deal with the ad-
mission and exclusion of evidence. We have considered
them and find the court’s rulings not prejudicial to the
l3a
rights of appellants. The final assignment suggests that the
judgment is contrary to the manifest weight of the evidence.
This has, in effect, been disposed of in our previous dis-
cussions. Assignments five, six and seven are overruled.
The judgment of the trial court must accordingly be
affirmed.
PALMER, P. J. and CASTLE, J., CONCUR.
PLEASE NOTE:
The Court has placed of record its own entry in this
case on the date of the release of this Opinion.
l4a
APPENDIX E
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
NO. C-780581
MARK W. GERACI, A Minor
By and Through
JOSEPH A. GERACI, His
Father and Next Friend,
and
JOSEPH A. GERACTI,
Appellants,
vs.
ST. XAVIER HIGH SCHOOL,
REV. PAUL BORGMANN,
MICHAEL D. TRAINOR,
THOMAS A. MEYER,
REV. ROBERT O’CONNER,
RICHARD B. BERNING,
RICHARD J. PIENING,
JAMES F. CAHILL,
REV. DANIEL L. FLAHERTY,
and
SOCIETY OF JESUS,
Appellees.
15a
JUDGMENT ENTRY
(Entered December 27, 1978)
This cause came on to be heard upon the appeal on
questions of law, assignments of error, the record from the
Court of Common Pleas of Hamilton County, Ohio, the
briefs and the arguments of counsel.
Upon consideration thereof, the Court finds that the
assignments of error are not well taken for the reasons
set forth in the Opinion filed herein and made a part
hereof.
It is, therefore, Ordered by the Court that the judg-
ment of the Court of Common Pleas of Hamilton County,
Ohio, be, and the same hereby is, affirmed.
It is further Ordered that a mandate be sent to the
Court of Common Pleas of Hamilton County, Ohio, for
execution upon this judgment.
Costs to be taxed in compliance with Rule 24, Appellate
Rules.
And the Court being of the opinion that there were rea-
sonable grounds for this appeal, allows no penalty.
It is further Ordered that a certified copy of this Judg-
ment, with a copy of the Opinion attached, shall constitute
the mandate pursuant to Rule 27, Ohio Rules of Appellate
Pfocedure.
To all of which the appellants, by their counsel, except.
l6a
APPENDIX F
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
NO. C-780581
MARK W. GERACI, A Minor, ET AL.,
Appellants,
vs.
ST. XAVIER HIGH SCHOOL, ET AL.,
Appellees.
ENTRY OVERRULING MOTION TO REQUIRE
COURT TO PASS ON ASSIGNMENTS OF ERROR
AND OVERRULING APPLICATION FOR
RECONSIDERATION.
(Entered January 25, 1979)
This cause came on to be heard upon the motion of the
appellant to pass on Assignments of Error Nos. 5 and 6 and
upon the application of the appellant for reconsideration |
of this Court's decision and judgment entered herein and |
upon the memoranda of the appellee in opposition there-
to, and
The Court’being fully advised in the premises finds that
said motion and application are not well taken and that
the same ought to be and hereby are overruled.
17a
APPENDIX G
STATE OF OHIO, HAMILTON COUNTY
COURT OF COMMON PLEAS
CASE NO. A-7806922
MARK GERACI,
PLAINTIFF
vs.
ST. XAVIER HIGH SCHOOL ET AL.,
DEFENDANTS
DECISION
(August 28, 1978)
MARRS, J.
This matter came on for hearing to the court on com-
plaint of the plaintiffs asking for a restraining order to
prevent Mark Geraci from being expelled from St. Xavier
High School and in the second cause of action to declare
his and his father’s rights under a contract implied by
the payment of tuition to the defendant school.
Evidence, exhibits, stipulations, and arguments were
received and heard by the court. These created issues
which are as follows:
(1) A question of fact as to whether Mark Geraci
had abandoned the pie throwing event or had the Mc-
Kenna youth undertaken the matter on his own?
(2) Does ‘Due Process’, a constitutional right given to
citizens of the United States extend to the citizens re-
lationship with a private educational institution of his own
choosing?
(3) Does a contractual relationship exist where a par-
ent pays tuition for his child to a private institution and
if so, does that relationship require and imply safeguards
against the summary expellment of said child?
(4) Did the expulsion procedure followed by the school
authorities constitute an abuse of discretion and therefore
the action taken was arbitrary, capricious and unreason-
able?
(1) First Issue
The evidence shows that about three weeks prior to
the end of the school year, a group of some 8 or 10 stu-
dents were having lunch in the Cafeteria of St. Xavier
High School, a private parochial college preparatory school
for young men. Someone came forth with an idea (ap-
parently copied from an episode at the 1977 Ohio State
Fair wherein a pie was thrown which struck the Governor
of the State) to “pie” Mr. Downie, an English teacher
at the high school. The plaintiff Mark Geraci, was a close
friend of one Tom McKenna (now deceased accidentaly
by means totally unrelated to this case) and called the
said McKenna suggesting the “pie throwing idea’’ and in-
dicated to Tom that the boys would be willing to pay him
for doing the job. Tom liked the idea, thought it would
be fun and agreed to do the act. Mark Geraci in the next
few weeks was approached by several of the boys who of-
fered money to Mark but according to his story, he re-
fused to accept. However, the night before the unhappy
event occurred, Mark Geraci called up Tom McKenna in-
viting him to a party and the subject matter of the pie
ee
ser
19a
throwing came up. Geraci relates that ‘Tom was still en-
thused and agreed to do it without pay. Geraci, accord.
ing to his testimony told Tom about the room location and
class time. (Tom was not a student at St. Xavier) Geraci
also related that he told Tom about a door at the corner
of the building that he could use as an escape route. ‘Tom
also said he needed a ride to the school and agreed to do
it if he had the time as he was going “bridge jumping”
at Morrow, Ohio. Another friend, Chuck Folzenlogen
was then called by Mark to arrange for Tom's transporta-
tion (See Patricia Geraci deposition P11-12). Mark Geraci
by his testimony claims that he then abandons the in-
cident because he doesn't know, so he says, that Folzen-
logen would drive ‘Tom to the school and secondly whether
Tom would even have the time to do the job. However,
Tom did arrive at the agreed time and place to do the
pie throwing.
The court would find from the evidence as a trier of
the fact that Mark Geraci did not abandon the plan. He
had not abandoned the plan when after talking with Me-
Kenna on the night before Mark called Folzeulogen to
arrange a ride for ‘Tom. When Tom showed up and threw
the pie, Mark had done nothing to show an abandonment
of the plan. Mark had not told Mr. Downie, Mr. Meyer
or anyone including his parents of the plan in advance so
that the idea could have been quashed. Mark let it proceed
in the natural course of events as initially had been dis-
cussed. Mark is the only one claiming abandonment. It
now becomes a matter of belief. Mark never at any time
told his mother, father, or the school authorities the full
extent of his involvement. Only after legal proceedings
were underway was it discovered that he had given the
escape route to McKenna. That just coincidently? Folzen-
logen was the driver of the car that brought McKenna to
20a
St. Xavier after Mark had called him the night before.
The evidence convinces this court that Mark Geraci was an
aider and abettor to the pie throwing affair. The criminal
law defines an aider and abettor as one “who aids, helps,
assists, encourages, directs, associates himself with another
for the purpose of committing the act. Such person is re-
garded as if he were the principal offender and is just
as guilty as if he had performed every act constituting the
offense. When two or more persons have common purpose
to commit a crime and one does one part and another per-
forms a second, those acting together have the purpose
or knowledge required.”
“Proof of motive is not required. (Whether prank or
intended assault) The presence or absence of motive is one
of the circumstances bearing on purpose or knowledge.”
“Purposely” is defined “When it is the specific intention
to bring about a certain result. A person acts purposely
when the gist of the offense is a prohibition against conduct
of a certain nature regardless of what the offender intended
to accomplish thereby, if it is his specific intention to
engage in conduct of that nature”.
“Purpose is a decision of the mind to do an act inten-
tionally and not accidently.”
Applying these principles to the instant case as well as
“the purpose with which a person does a certain act is
determined from the manner in which it was done, the
means used and all other facts and circumstances in evi-
dence”, this court can only conclude that Mark Geraci
continued throughout to be a part of the plan.
(2) Second Issue
Evidence in this case shows that St. Xavier High School
is a State of Ohio approved high school, its students are
subject to the compulsory education laws, uses only State
2la
certified teachers, owns tax exempt properties, receives
public transportation subsidies, participates and receives
on loan at no expense to it, a book lending subsidy from
the Public local school district and other municipal sub-
sidies.
In examining the meager case law on this subject, the
court in Wisch v. Sanford School Inc., 420 F.Supp. 1310
(Delaware 1976) defined whether or not a school institu-
tion was subject to the “due process” clause by applying the
following tests:
“The State must have either significant control over an
input into the policy making process of the private institu-
tion, or be so involved in the financing and running of the
institution that it in effect facilitates the constitutional
violation complaint of.”
Examinations of the cases cited in the well prepared
briefs by the attorneys for the plaintiffs as well as those of
the defendants compells this court to find from the evidence
in this case, that the “Due Process” Clause is not applicable
because the assistance received from the State of Ohio by
St. Xavier High School is minimial and indirect and that
the State has nothing to say about its policy input or about
its disciplinary procedures. Likewise the State does not
assist in its financing or fund raising or involve itself in
any manner n the running of the School.
The facts in this case with regard to the issue of “Due
Process’’ are similar to the case of Bright v. Isenberger, 314
F. Supp. 1382 (445 F 2nd 412) and when combined with
the Wisch case (supra), this court would find that “Due
Process” is not applicable to a private institution based
on the evidence of this case.
(3) Third Issue
The facts indicate that Mr. Joseph Geraci, Mark's father,
pays his son’s tuition and has done so for three years. He
22a
has also in accordance with the School's rules deposited
10% of the 1978-79 year in advance. This advance deposit
was returned to him by the School when Mark was expelled
but he has not accepted the return of the deposit. It is his
claim that a contractual agreement is in effect between he
and the school. That because of this contractual relation-
ship he is afforded the opportunity of being present at any
serious hearing concerning the disciplining of his son and
especially at the hearing where his son is expelled from the
school.
This court would find from the evidence that a contract
does exist between Mr. Joseph Geraci and St. Xavier High
School.
We must now examine the extent of that contractual rela-
tionship. To this end we must look at Plaintiff's Exhibit
1, the guide book outlining philosophy and objectives and
setting forth the guidelines for behavior and discipline and
also the extent of Mr. Geraci’s knowledge and understand-
ing of the contractual relationship.
Mr. Geraci took the witness stand and testified that he
had attended St. Xavier High Schol and had graduated
therefrom and then went on to graduate from Xavier Uni-
versity. He also related that 12 other members of his family
had attended and graduated from St. Xavier High School
including his oldest son, Mark’s older brother. He testified
he had not read the Guide Book but was aware of the
discipline of the school.
In examining the guide book, on page 2, we find that
“By registering at St. Xavier High School, a student and his
parents understand and agree to pursue the educational
objectives and practices as stated in the catalogue and to
observe the disciplinary code of the School”.
Page 14 of the book reveals the right of the individual!
student as well as the students duty. Also on this page
NL NT NS A NT Te See ln Ne Fw
ee ea
ee ee ee
23a
the Assistant Principal is in charge of all matters of dis-
cipline.
Page 15 outlines procedures on complaint of a student,
that the case may be represented to the principal or the
assistant principal.
It is to be specifically noted that ‘a student involved in
off-campus conduct prejudicial te the reputation of the
school is liable to expulsion”.
Page 18 provides offenses for expulsion and No. | sets
up “conduct detrimental to the reputation of the school.”
No. 8 provides for “immorality in talk or action”.
Page 34 provides for a Disciplinary Board that serves
only in an advisory capacity to the Principal. Any decisions
of the Board are subject to his approval. Likewise the
Board “advises the Assistant Principal for student affairs
in matters touching on norms of conduct for students.”
The evidence in the case shows that after Tom McKenna
threw the pie, he attempted to escape after a struggle with
Mr. Downie, that he kicked out a glass door (the suggested
escape route) fisticuffs ensued and Tom was eventually
subdued and taken to the police station where he involved
Mark Geraci as his contact. The evidence further showed
that Mark had gone home, told his mother about what
Tom had done and his capture and that he was concerned
about Tom. He likewise related to some degree that he
was involved and should go back to school and explain it
to Mr. Downie. Mr. Meyer, the Assistant Principal, called
and said he wanted to talk with Mark and the mother asked
Mark if she should accompany him. Mark said no, went
to school, conversed with Mr. Meyer, the Assistant Prin-
cipal, and related in part his implications. Mr. Meyer, had
previously investigated the matter, had conversed with Mc-
Kenna at the police station heard the implication of Mark,
further discussed the matter with Mr. Trainor, the School
24a
Principal. Reverend Borgman, the President of St. Xavier
High School, had also investigated the matter and had like-
wise talked with ‘Tom McKenna, Mr. ‘Trainor and Mr.
Meyer. These latter two men had decided on the punish-
ment of expulsion if Mark were found to be implicated.
Mr. Meyer conversed with Mark, gave him the opportunity
to be heard and found him to be an instigator of the affair
and expelled him. Mark and his father appealed to Mr.
Trainor and finally both talked to Father Borgman who
had the power to affirm or modify the punishment. He
affirmed the decision of Mr. Meyer and the expulsion of
Mark.
The plaintiffs now claim that the procedure outlined
above violated the terms of the contract because the father
was not allowed to be present at the hearing which resulted
in the expulsion.
The court would find that under the system of the
school’s disciplinary procedures the father was not entitled
to be present. He knew from his long association with the
school (his own attendance and that of the older son, as
well as other members of the family) what the procedures
were and agreed to this when the boy was enrolled (Page
2 of the guide book). Likewise the mother having heard
half the story from her son knew that when Mr. Meyer
called, something of a serious nature was involved and she
offered to accompany her son but he refused her offer and
she let him go on his own to see Mr. Meyer.
The School gave Mark’s father the opportunity of appeal
as he was allowed to talk with Mr. Trainer and ultimately
with Father Borgman, who apparently wanted time to
think about the event and the drastic punishment meted
out as he avoided confrontation with Mr. Geraci by a
somewhat common ruse, that having his associates tell Mr.
Geraci that he was “‘out of town’. Father Borgman testi-
ree eee Or
25a
fied as to his concern over the effect of this episode on the
individuals directly involved, the student body, the 61
other teachers and the overall ‘effect in the future.’
This court would find that Mr. Geraci and his son re-
ceived from the school, that procedure for handling dis-
ciplinary matters that the contract called for in the guide
book.
(4) Fourth Issue
Did the expulsion procedure amount to an abuse of
discretion?
The court thinks not! ‘The episode flaunted the personal
dignity of the teacher, Mr. Downie. It was an affront to
the authority and prestige of the school itself. If such
conduct was subject to expulsion if engaged in off-campus
activities, certainly such conduct was subject to expulsion
if engaged in while on campus.
Although the hearing itself was not held in the manner
of those conducted by a court, yet the guide book says on
Page 14 “The underlying concept is not one of legalisms,
punishments, or discipline for disciplines sake”. ‘The
court feels that Mr. Geraci knew what he was getting when
he chose to send his son to St. Xavier High School. He
elected this school and paid the tuition for a system which
he spparently from his experience believed would produce
a highly disciplined boy. Unfortunately, for all, it didn’t.
The court would find there has not been an abuse of
discretion as the matter was heard and reviewed, thought
about, prayed about and the decision made should not be
set aside by the court substituting its judgment in private
affairs.
Relief prayed for is denied.
26a
APPENDIX H
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
No. A-7806922
MARK W. GERACI, A Minor,
By and Through
JOSEPH A. GERACTI,
His Father and Next Friend,
and
JOSEPH A. GERACI,
Plaintiffs,
vs.
ST. XAVIER HIGH SCHOOL, et al.
Defendants,
JUDGMENT ENTRY
(Entered September 13, 1978)
‘This case came on to be heard on Plaintiffs’ Complaint,
the Answer of the Defendants, the Application of Plaintiffs
for Preliminary and Permanent Injunction and other relief
including the declaration of the rig! :s, status, and legal
relationship between the Plaintiffs and the Defendants as
set forth in Plaintiffs’ Complaint.
Whereupon, the Court, upon agreement of counsel for
the parties, ordered the Application of the Plaintiffs for
said injunctions to be consolidated with trial of the action
=~
Ca al So OI ata hy MORES
27a
on the merits and the case proceeded to trial accordingly
on the evidence and the pleadings and was submitted to the
Court.
Upon consideration the Court finds:
1. That St. Xavier High School receives only minimal
and indirect aid from the State of Ohio; that the State of
Ohio is not involved in the disciplinary procedures or
otherwise in the operation of St. Xavier High School; that
St. Xavier High School is a private institution; and that
the due process provisions of the XIVth Amendment to
the United States Constitution are not applicable to the
parties in this case.
2. That a contract for education did exist between
Plaintiffs and St. Xavier High School; that Mark Geraci
arranged for a third person to throw a pie at a member
of the faculty while his class was in progress at St. Xavier
High School; that Mark Geraci did not abandon such
plan or take any steps to terminate such plan; that he
continued throughout to be a part of such pian; and that,
by his conduct, Plaintiff, Mark W. Geraci, breached such
contract;
3. That Plaintiffs received from St. Xavier High School
and those acting on its behalf that procedure for the ad-
ministration of discipline to which they were entitled under
the aforesaid contract and that St. Xavier High School
has not acted in any manner such as to constitute a breach
of such contract between it and Plaintiffs;
4. That, upon the evidence, the expulsion of Mark W.
Geraci as a student at St. Xavier High School was just,
proper, and in accordance with the contract between the
parties, and did not constitute an abuse of discretion on the
part of the school or any other Defendant herein.
It is therefore ordered and adjudged that all issues herein
joined be and hereby are determined in favor of Defendants
28a
and judgment is entered accordingly. Plaintiff is ordered
to pay the costs herein.
Judge
/s/ HYMAN B. ROSEN, Trial Attorney
for Plaintiffs
for Defendants
APPENDIX I
EXCERPT FROM COMPLAINT
Court of Common Pleas, Hamilton County, Ohio
(Filed August 7, 1978)
Page 6:
(15) The actions of the Defendants in expelling and
disciplining the Plaintiff or otherwise aiding therein, and
by denying him a proper hearing as a student at St. Xavier
High School were arbitrary, capricious, unreasonable, un-
lawful and in violation of the contractual relations between
said parties and Plaintiff's rights, and failed to accord the
Plaintiff due process and equal protection with other
students at said School, as required by State and Federal
laws.
« ie Fe hs
eles PLD
he ee, eel
ee ee
29a
APPENDIX J
EXCERPT FROM MEMORANDUM OF
PETITIONERS
Court of Common Pleas, Hamilton County, Ohio
(Filed August 25, 1978)
Page 10:
It is undisputed that the courts must intervene to insure
the rights of students in cases involving public schools.
No case has reached the Supreme Court of the United States
whose decision would be binding on this court in regards
to the rights of courts as to private schools. However,
there seems to be no reason why any distinction should
be made between public and private schools, since ad-
mittedly they perform the same function. In view of the
fact that there is no binding authority on the subject, the
Plaintiffs can only reason by analogy. The United States
Supreme Court by its numerous decisions on the subject
is persuasive authority that where a private person or
organization performs a function which is public in nature,
such function constitutes State action. Consequently such
persons or parties are subject to all the provisions of the
United States Constitution, including rights under the
Bill of Rights, Rights of Due Process, Equal Protection,
and Rights of Citizens under the Thirteenth and Fifteenth
Amendments.
30a
APPENDIX K
EXCERPT FROM MEMORANDUM OF THE
PETITIONERS IN THE COURT OF APPEALS FOR
THE FIRST APPELLATE DISTRICT OF OHIO
(Filed October 5, 1979)
Page 8:
The Trial Court erred to the prejudice of the Plaintiffs
when it held that the Constitutional rights of due process
guaranteed by the Fourteenth Amendment of the United
States do not extend to them.
Issues Presented for Review
First Issue
The Constitutional right of due process set forth in
the Fourteenth Amendment of the United States applies
to and is controlling in disciplinary proceedings by a private
school against a student.
<
$la
APPENDIX L
SECTION 2721.09 O.R.C.
§ 2721.09 Further relief granted. (GC § 12102-8)
Whenever necessary or proper, further relief based on a
declaratory judgment or decree previously granted may
be given. The application therefor shall be by petition
to a court having jurisdiction to grant the relief. If the
application is sufficient, the court shall, on reasonable
notice, require any adverse party, whose rights have been
adjudicated by the declaratory judgment or decree, to show
cause why further relief should not be granted forthwith.
HISTORY: GC § 12102-8; 115 v 496, § 8. Eff 10-1-53.
Comment
By this section, any interested person may apply to a court
for further relief based upon a declaratory judgment or
decree previously entered. It is reported that in some cases
a request for a declaration is accompanied by a prayer for
coercive relief, such as injunction or other relief. Under
this section such relief may be petitioned after the declara-
tory decree has been entered.
$2a
APPENDIX M
SECTION 3321.04 O.R.C.
§ 3321.04 Compulsory attendance.
Every parent of any child of compulsory school age who
is not employed under an age and schooling certificate must
send such child to a school or a special education program
that conforms to the minimum standards prescribed by the
state board of education, for the full time the school or
program attended is in session, which shall not be for less
than thirty-two weeks per school year. Such attendance
must begin within the first week of the school term or pro-
gram or within one week of the date on which the child
begins to reside in the district.or within one week after his
withdrawal from employment.
For the purpose of operating a school or program on a
trimester plan, “full time the school attended is in session,”
as used in this section means the two trimesters to which
the child is assigned by the board of education. For the
purpose of operating a school or program on a quarterly
plan, “full time the school attended is in session,” as used in
this section, means the three quarters to which the child is
assigned by the board of education. For the purpose of
operating a school or program on a pentamester plan, “full
time the school is in session,” as used in this section, means
the four pentamesters to which the child is assigned by
the board of education.
Excuses from future attendance at or past absence from
school or a special education program may be granted for
the causes, by the authorities, and under the following
conditions:
1 —
ee eee ae
33a
(A) The superintendent of schools of the city, ex-
empted village, or county school district in which the child
resides may excuse him from attendance for any part of the
remainder of the current school year upon satisfactory show-
ing of either of the following facts:
(1) That his bodily or mental condition does not per-
mit his attendance at school or a special education program
during such period; this fact is certified in writing by a
licensed physician or, in the case of a mental condition, by
a licensed physician, a licensed psychologist, licensed school
psychologist or a certificated school psychologist; and pro-
vision is made for appropriate instruction of the child, in
accordance with Chapter 3323. of the Revised Code;
(2) That he is being instructed at home by a person
qualified to teach the branches in which instruction is re-
quired, and such additional branches, as the advancement
and needs of the child may, in the opinion of such super-
intendent, require. In each such case the issuing superin-
tendent shall file in his office, with a copy of the excuse,
papers showing how the inability of the child to attend
school or a special education program or the qualifications
of the person instructing the child at home were deter-
mined. All such excuses shall become void and subject to
recall upon the removal of the disability of the child or the
cessation of proper home instruction; and thereupon the
child or his parents may be proceeded against after due
notice whether such excuse be recalled or not.
(B) The state board of education may adopt rules au-
thorizing the superintendent of schools of the district in
which the child resides to excuse a child over fourteen years
of age from attendance for a future limited period for the
purpose of performing necessary work directly and exclu-
sively for his parents or legal guardians.
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All excuses provided for in divisions (A) and (B) of
this section shall be in writing and shall show the reason for
excusing the child. A copy thereof shall be sent to the
person in charge of the child.
(C) The board of education of the city, exempted vil-
lage, or county school district in which a public school is
located or the governing authorities of a private or paro-
chial school may in the rules governing the discipline in
such schools, prescribe the authority by which and the
manner in which any child may be excused for absence from
such school for good and sufficient reasons.
The state board of education may by rule prescribe con-
ditions governing the issuance of excuses, which shall be
binding upon the authorities empowered to issue them.
APPENDIX N
SECTION 3321.07 O.R.C.
§ 3321.07 Requirements for child not attending public
schools.
If any child attends upon instruction elsewhere than in a
public school such instruction shall be in a school which
conforms to the minimum standards prescribed by the state
board of education. The hours and term of attendance
exacted shall be equivalent to the hours and term of attend-
ance required by children in the public schools of the
district. This section does not require a child to attend a
high school instead of a vocational, commercial, or other
special type of school, provided the instruction therein is
for a term and for hours equivalent to those of the high
~~
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school, and provided his attendance at such school will not
interfere with a continuous program of education for the
child to the age of sixteen.
APPENDIX O
SECTION 3321.38 O.R.C.
§ 3321.38 Failure to send child to school.
(A) No parent, guardian, or other person having care
of a child of compulsory school age shall violate section
3321.01, 3321.03, 3321.04, 3321.07, 3321.10, 3321.19,
3321.20, or 3331.14 of the Revised Code. The court may
* require a person convicted of violating this division to give
bond in the sum of one hundred dollars with sureties to the
approval of the court, conditioned that he will cause the
child under his charge to attend upon instruction as pro-
vided by law, and remain as a pupil in the school or class
during the term prescribed by law.
(B) No parent, guardian, or other person shall fail
or refuse to pay a fine and costs for violating division (A)
of this section or fail to give bond as provided for in this
section.
(C) This section does not relieve from prosecution and
conviction any parent, guardian, or other person upon
further violation of such sections; nor shall forfeiture of
the bond relieve such person from prosecution and convic-
tion upon further violation of such sections.
Section 4109.13 of the Revised Code applies to section
3321.38 of the Revised Code.
*HISTORY: 137 v H 883. Eff 1-12-79.
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APPENDIX P
SECTION 3321.99 O.R.C.
§ 3321.99 Penalties.
(A) Whoever violates division (A) of section 3321.38
of the Revised Code shall be fined not less than five nor
more than twenty dollars.
(B) Whoever violates division (B) of section 3321.38
of the Revised Code shall be imprisoned not less than ten
nor more than thirty days.
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APPENDIX Q
TITLE 28, SECTION 1257(3) U.S.C.
Final judgments or decrees rendered by the highest court
of a State in which a decision could be had, may be reviewed
by the Supreme Court as follows:
(1) By appeal, where is drawn in question the validity
of a treaty or statute of the United States and the decision
is against its validity.
(2) By appeal, where is drawn in question the validity
of a statute of any state on the ground of its being repugnant
to the Constitution, treaties or laws of the United States,
and the decision is in favor of its validity.
(3) By writ of certiorari, where the validity of a treaty
or statute of the United States is drawn in question or where
the validity of a State statute is drawn in question 0) the
ground of its being repugnant to the Constitution, treaties
or laws of the United States, or where any title, right, privi-
lege or immunity is specially set up or claimed under che
Constitution, treaties or statutes of, or commission held
or authority exercised under, the United States. June Z5,
1948, c. 646, 62 Stat. 929.
5 tn onicas eae
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APPENDIX R 4
1977-78 ST. XAVIER HANDBOOK
CONTAINING GROUNDS FOR EXPULSION
CONTINUED i
Expulsion The following offenses are grounds for expul-
sion:
1. conduct detrimental to the reputation of the school.
2. conduct detrimental to the health or safety of other
students (e.g., bomb threats, false fire alarms, tem-
pering with fire equipment) .
3. chronic misconduct by a student who has been pre-
viously suspended or placed on probation.
4. twelve demerits in a semester or twenty in a year.
a third suspension.
6. dishonesty in any form, especially stealing, even
though the article may be of comparatively little
value.
7. willfully damaging furniture, equipment, or other
school property or the private property of others.
8. immorality in talk or action.
9. possession or distribution of obscene materials.
10. possession or use of alcoholic beverages or drugs on
school property or at school-related events.
11. possession or use of fire crackers or other explosives.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.