B.O.A. v. U.S.D. 480 Bd. of Education

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No. 119,773

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

B.O.A., a Minor, By and Through L.O., Next Friend,
Appellee,

v.

U.S.D. 480 BOARD OF EDUCATION,
Appellant.


SYLLABUS BY THE COURT

1.
A district court has jurisdiction to review and modify a school board's decision
under K.S.A. 60-2101(d).

2.
When an appeal is taken under K.S.A. 60-2101(d), the district court may not
substitute its judgment for that of the political or taxing subdivision or agency and the
court's scope of review is limited to deciding whether the board's decision was within the
scope of its authority; its decision was substantially supported by the evidence; and it did
not act fraudulently, arbitrarily, or capriciously.

3.
An appellate court exercises the same statutorily limited review of a political or
taxing subdivision action as the district court.

Appeal from Seward District Court; BRADLEY E. AMBROSIER, judge. Opinion filed March 15,
2019. Affirmed.

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Lane L. Frymire and Richard R. Yoxall, of Yoxall, Antrim, Foreman & Frymire, LLP, of Liberal,
for appellant.

Kelly Premer Chavez, of Tahirkheli & Premer-Chavez Law Office, LLC, of Liberal, for appellee.

Before GARDNER, P.J., HILL and SCHROEDER, JJ.

HILL, J.: Good government requires political and taxing subdivisions to give
reasons for imposing penalties such as expulsion from public schools. In this appeal of a
student's expulsion, the U.S.D. 480 Board of Education failed to give any reason why it
increased the length of that student's expulsion to the statutory maximum when it
reviewed the decision of the school superintendent. When the student appealed to the
district court, it held that the Board's action of increasing the length of this student's
expulsion was arbitrary, capricious, and unreasonable. The court then modified the
Board's order by reducing the term of the student's expulsion to the length suggested by
the superintendent of schools. Finding no error, we affirm.

To aid the understanding of the facts, we offer a brief outline of the procedures
used to expel this public school student. Review of this expulsion extended through
several layers. First, the student's school principal made her recommendation. This was
followed by a formal hearing before a school district hearing officer. After that, the
school district superintendent reviewed the matter. And, finally, the Board of Education
reviewed the superintendent's findings and recommendations and considered whether to
expel the student and if so, for how long. This student, aggrieved by this process, sought
review of the school district's actions by the district court under K.S.A. 60-2101(d). Here
is what happened.




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A middle school reacted to threats posted on social media.

In January 2018, a student at the Eisenhower Middle School in U.S.D. 480 alerted
Principal Randi Jones that posts on social media were threatening a school shooting.
Screen shots of the posted threats showed that the shooting was to occur on Wednesday,
January 17.

School officials reported the threats to the Liberal Police Department for
investigation. The police investigation determined that B.O.A. was responsible for
posting at least one of the threats. B.O.A. was enrolled as a seventh grader at the school.
He acknowledged to the police that one of the threatening posts was his by placing a
checkmark by it and writing his name. That post stated, "Lets [sic] start a school shooting
starting with EMS."

When she learned that the police believed B.O.A. was responsible for one of the
threats, Principal Jones told him and his mother that she had placed him on an immediate
10-day school suspension. Later, while suspended from school, B.O.A. wrote a letter of
apology to the principal and the school district. In it he stated that he intended the post as
a joke, but that it went too far. He asked for forgiveness and the opportunity to continue
going to school.

The principal then notified the student and his parents that she proposed a 186-day
expulsion for B.O.A. This notice alleged that his conduct violated several statutory
provisions which called for his expulsion. The notice also told him that he was entitled to
a formal hearing. B.O.A. requested a formal hearing.

His formal hearing was held by Michael Stovall, Director of District Systems for
the school district. At the hearing, Principal Jones, the assistant principal, B.O.A., and his
parents attended. Both of B.O.A.'s parents spoke. They both acknowledged "he did do
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wrong," but that he was a good kid who behaves at home, and was otherwise responsible.
They described his general demeanor as shy, and stated he lacked self-esteem and was
easily influenced by others. They asked for another opportunity for their son.

Hearing Officer Stovall spoke to B.O.A. and told him that school districts cannot
take such threats as "just a prank," and told him that his actions caused disruption within
the school district. Stovall went on to say that by "typing that" on his phone, B.O.A.
showed he did not understand the consequences of his actions.

The hearing officer found that B.O.A.'s conduct met four specified statutory
criteria to justify his expulsion and ordered his expulsion for 186 school days. This is the
maximum expulsion allowed by statute. See K.S.A. 72-6115(a). Basically, his decision
affirmed what the principal had suggested. Stovall told B.O.A. and his parents that he
could file a written appeal with school superintendent Renae Hickert. They did so.

When Superintendent Hickert convened the expulsion appeal hearing, she received
several exhibits and heard testimony from Principal Jones, Hearing Officer Stovall, some
law enforcement officers, another student, a parent of other students, and B.O.A.'s
mother. In her decision, Hickert made 18 detailed findings of fact about the time line of
events, as well as findings related to the police investigation and the effects this had on
the schools.

In her decision, Hickert found that:
 B.O.A. admitted he made some threats against the middle school on social
media;
 he identified one threat in particular by a checkmark and writing his name
next to it;
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 he had written an apology letter asking for forgiveness for his conduct, and
the timing and context of his letter showed the conduct for which he
apologized was the posted threat against the school;
 the police investigation determined that B.O.A. posted some threats on
social media;
 Principal Jones' testimony at the hearing showed that the social media
threats disrupted and interfered with the school because school resources
were diverted from normal operations to attend to concerns of students,
faculty, and staff, and to assist law enforcement in the investigation;
 Jones suggested that nearly half of the student body was absent on the day
the threatened shooting was to take place because concerned parents kept
their children from school that day;
 B.O.A. and his parents acknowledged and admitted—in the context of
Stovall's hearing—that he made the threats;
 Stovall testified that B.O.A.'s conduct violated the middle school student
code of conduct, and that the threats met several categories of conduct
prohibited by statute which warranted expulsion; and
 law enforcement officials determined that the threats were criminal and
would constitute a felony if committed by an adult.

Finally, Hickert specified the statutory categories of conduct that could warrant
expulsion. Basically, she ruled that four grounds that allow a school district to expel a
public school student were proved here. See K.S.A. 72-6114(a)-(d). She found that
witness testimony—including B.O.A.'s testimony—established that he violated a
published student code of conduct when he made threats of a school shooting on social
media that targeted the middle school. Hickert found that this act of making the threats
substantially disrupted, impeded, and interfered with the operation of the school, and
endangered the safety of others or substantially impinged upon or invaded the rights of
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others at the school. She also found that B.O.A.'s threats would constitute a felony if
committed by an adult. Based on these findings, she recommended that he should be
expelled from the middle school and U.S.D. 480 for the remainder of the 2017-2018
school year, and be allowed to return at the beginning of the fall semester for the 2018-
2019 school year. The issue then went on to the Board of Education.

At the Board's next regular meeting, neither B.O.A. nor his parents attended. After
first considering the matter in executive session with its counsel, the Board found that
further hearing on the matter was unnecessary. It adopted Superintendent Hickert's 18
findings. But, contrary to her recommendation, the Board expelled B.O.A. for 186 school
days, beginning January 29, 2018.

The parties come to court.

In his appeal to the district court, B.O.A. alleged U.S.D. 480 violated his due
process rights by not allowing him and his parents to attend the board meeting when his
fate was decided and deciding the matter in executive session with the Board's lawyer. He
also appealed the determinations that he violated a published regulation for student
conduct, endangered the safety or rights of others, and substantially disrupted or
interfered with the operation of the school. He argued that he had not been convicted of a
felony and claimed that the Board did not follow the law by failing to adopt Hickert's
recommendation that he be allowed to return to school for the 2018-2019 school year.

The Board argued that it acted within the law and had the statutory authority to
expel B.O.A. The Board contended there was substantial evidence to support its decision
to expel him and adopt Hickert's findings. In its view, there was no evidence to show it
acted fraudulently, arbitrarily, or capriciously in expelling B.O.A.

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After reviewing all the evidence from the prior proceedings, the district court was
unable to learn the exact nature of B.O.A.'s involvement in making the threats. But the
court still found there was "no doubt B.O.A. had some level of involvement regarding the
electronic statements," and speculated he allowed a friend to use his device to transmit
the threats. The court observed that Hickert—after hearing all the evidence—found it
appropriate to expel him through the end of the school year.

The court agreed that the Board's decision was arbitrary and capricious, and
granted B.O.A. the relief he requested—limiting his expulsion to the spring of 2018 and
allowing him to return to school in the fall of 2018. While doing so, the court declined to
rule on his due process argument.

The Board appealed, arguing the court substituted its judgment for the Board's.
B.O.A., however, did not cross-appeal. We note that under K.S.A. 2017 Supp. 60-
2103(h), an appellee must file a notice of cross-appeal from adverse rulings to obtain
appellate review of those issues. See Lumry v. State, 305 Kan. 545, 553-54, 385 P.3d 479
(2016). Thus, we will not consider B.O.A.'s due process claims because we are without
jurisdiction to consider them.

This is an appeal by a taxing subdivision of state government.

To us, the Board argues that the district court disregarded B.O.A.'s admission of
making the social media statement. It reweighed the evidence and substituted its
judgment for that of the Board when it modified B.O.A.'s term of expulsion. The Board
contends that the district court did not determine whether the Board's findings were
substantially supported by the evidence. The Board also contends that its decision to
expel him was supported by substantial evidence, and thus was not arbitrary or
capricious. We note, however, the Board's findings of fact are not in dispute, and the
district court affirmed the Board's decision to expel B.O.A.
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The district court had jurisdiction to review and modify the Board's decision under
K.S.A. 60-2101(d). When an appeal is taken under this statute, the district court may not
substitute its judgment for that of the political or taxing subdivision or agency and the
court's scope of review is limited to deciding whether:
 The Board's decision was within the scope of its authority;
 its decision was substantially supported by the evidence; and
 it did not act fraudulently, arbitrarily, or capriciously.

See Denning v. Johnson County Sheriff's Civil Service Bd., 299 Kan. 1070, 1075, 329
P.3d 440 (2014).

We review the district court's ruling.

The district court here did not conclude that the Board's decision to expel B.O.A.
was outside the scope of its authority, but found that the Board's decision to expel him for
the maximum period allowed by law—186 school days—was unsupported by its adopted
findings of fact and the record as a whole, and was therefore arbitrary and capricious. See
K.S.A. 72-6115(a). Essentially, the district court found the Board acted arbitrarily and
capriciously when it adopted all of Hickert's factual findings, but without further hearing
or explanation, ignored her recommendation to limit B.O.A.'s expulsion to the remainder
of the school year.

To dispute an expulsion, a student must appeal the school board's decision to the
district court under K.S.A. 60-2101(d): "A judgment rendered or final order made by a
political or taxing subdivision, or any agency thereof, exercising judicial or quasi-judicial
functions may be reversed, vacated or modified by the district court on appeal."
(Emphasis added.) Here, having found that the evidence and factual findings did not
support the maximum term of expulsion, the district court modified the Board's decision
by limiting the period of expulsion to the current school term.
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An appellate court exercises the same statutorily limited review of the agency's
action as the district court. It is as though the appeal had been made directly to the
appellate court. Carlson Auction Service, Inc. v. Kansas Corporation Comm'n, 55 Kan.
App. 2d 345, 349, 413 P.3d 448 (2018). Thus, we must determine whether the Board's
decision on the length of B.O.A.'s expulsion was supported by the evidence or, given the
record as a whole, was arbitrary and capricious. See Butler v. U.S.D. No. 440, 244 Kan.
458, 463, 769 P.2d 651 (1989).

The Board, in its brief, does not address the district court's actual finding that
imposing the maximum term of expulsion given all the evidence in the case was arbitrary
and capricious. Issues not adequately briefed are considered waived or abandoned. In re
Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018). A point raised
incidentally in a brief and not argued therein is also considered abandoned. Russell v.
May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017).

While the district court found substantial evidence to support expulsion, it found
other evidence detracted from imposing the statutory maximum term of that expulsion:

"While it is easy to sympathize with the Board in their attempt to send a tough message to
those who may be engaged in this type of conduct, there is simply nothing in the fact
pattern of this case which substantiates the harshest penalty being imposed. Ms. Hickert,
who heard all the testimony live, obviously reached the conclusion that while B.O.A. had
some involvement, his culpability did not support the most severe sanction. The Board,
armed with no additional evidence, in effect doubled the punishment invoked by Ms.
Hickert. The Court can find absolutely no justification in the record for that determination
and, therefore, finds the same to be unreasonable and without foundation in fact."

The judge was concerned about the total lack of reasoning offered by the Board. A
court, when reviewing an agency decision, cannot read minds.

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Because we review the same record, we share a similar concern. We have no
doubt that B.O.A. made a threat against the middle school on social media. Indeed, he
does not argue on appeal that his expulsion should be reversed. Instead, he contends only
that the district court was right to modify his term of expulsion by reducing it from the
statutory maximum set by the Board.

Indeed, the record reveals facts that detract from the Board's maximum imposed
term. B.O.A.'s post was made in the context of other posts that supported his claim that it
was a joke that went too far. He accepted responsibility for posting the threat, and asked
for forgiveness and the opportunity to return to school. The police investigation
discovered B.O.A. could not carry out his threat.

Simply put, the trouble with the Board's position is that it fails to offer any
explanation in the record why it imposed the maximum period of expulsion instead of
following Superintendent Hickert's recommendation. After the Board came out of
executive session it gave no reasons why it increased the period of expulsion.

This meant that there was no administrative record for the district court to work
with in trying to decide the reasonableness of the Board's decision. We, too, have no
record to review on this point. The district court, seizing on Hickert's well-reasoned and
well-supported work, ruled that the shorter period of expulsion was reasonable. We
cannot say that was erroneous.

The district court confirmed that the parties were arguing over the term of B.O.A.'s
expulsion, not the expulsion itself. The court then reviewed all the evidence in the context
of the record as a whole and determined that the term of expulsion was unsupported by
the Board's findings. This was not a mere substitution of the district court's judgment for
that of the Board. The district court appropriately reviewed the record in its full context
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and decided that the Board increased B.O.A.'s expulsion without giving a reason. When a
government agency or subdivision acts without explanation, it acts arbitrarily.

The district court acted within its scope of review and is affirmed.