From Casetext: Smarter Legal Research

State ex Rel. Yarber v. McHenry

Supreme Court of Missouri, En Banc
Dec 19, 1995
915 S.W.2d 325 (Mo. 1995)


following Weber while distinguishing Hagely

Summary of this case from Smith v. City of St. Louis


No. 77744

November 21, 1995. As Modified on Denial of Rehearing December 19, 1995.


Kent L. Brown, Jefferson City, for relator.

Virginia L. Fry, Don G. Busch, Springfield, for respondent.

Steven L. Wright, Melissa K. Randol, Columbia, for amicus curiae Missouri School Boards Association.

This is a proceeding in prohibition. Relator, Clint Yarber, asks this Court to determine the proper venue for judicial review of a decision by the Mountain Grove School District denying him a semester of high school credit hours because of excessive absences. Yarber contends that venue is proper in Cole County because the underlying case is a "contested case" as that term is used in the Missouri Administrative Procedure Act (MAPA), set out in chapter 536, RSMo. Respondent, Hon. James F. McHenry of the Circuit Court of Cole County, determined that the case is not a "contested case" and ordered that it be transferred to the Circuit Court of Wright County where Yarber resides and where the school district is located. The Missouri Court of Appeals, Western District, issued a preliminary writ of prohibition at Yarber's request after which this Court granted transfer. Rule 83.03 . We now make the writ absolute.

On transfer, the Missouri School Boards Association, with leave of court, filed a brief as amicus curiae.


Clint Yarber attends Mountain Grove High School, which is operated by the Mountain Grove R-III School District. The school district has an attendance policy for the high school that states in pertinent part as follows:

I. Any student who misses more than six days in any given class in a semester will have the opportunity to make up class time or lose credit for that semester.

. . . .

II. For the seventh and subsequent absences, students will attend "Saturday School" to make up time missed and receive credit for the semester.

. . . .

V. If a student misses more days than available make-up days would accomodate [sic] (due to major illness, accident, or death in his/her immediate family), that student could file an appeal along with his or her parent/guardian(s) to be released from those days missed.

Yarber was accused of violating the attendance policy during the fall 1993 semester. The school notified him that he would be required to make up three days over Christmas vacation and one day during the month of January. Yarber attended two of the scheduled make-up days, but when his mother allegedly saw students in the make-up classes eating pizza and watching a movie, she took him out of the classes and did not send him back for the remaining days.

On January 12, 1994, Yarber, who had received passing grades for his class work, was notified by the school district that he had lost all credit for the semester because of the attendance policy violation. Yarber then appealed to the school board, which heard Yarber's objection but did not convene a formal hearing as contemplated by the "contested case" provisions of § 536.070, RSMo 1986. Thereafter, on January 28, 1994, the board denied the appeal.

Yarber, by and through his mother and next friend, Cheryl Yarber, then filed a three-count petition in the Circuit Court of Cole County, naming the school district, members of the board, and various administrators as defendants. In Count I, Yarber seeks judicial review under § 536.150, RSMo 1986, governing review of noncontested cases. Count II is brought, in the alternative, under § 536.100 to 536.140, RSMo 1986, governing review of contested cases. Count III is a claim for damages and injunctive relief pursuant to 42 U.S.C. § 1983 and 1988 for violation of Yarber's constitutional right to due process.

In the petition, Yarber alleged that venue was proper in Cole County under § 536.110.3, RSMo 1986, which states: "The venue of [contested] cases shall, at the option of the plaintiff, be in the circuit court of Cole County. . . ." Defendants filed a motion to transfer the case to Wright County on the ground that the case was not a contested case. Judge McHenry sustained the motion to transfer, but several days thereafter he stayed the transfer to allow Yarber to seek a writ of prohibition. In the meantime, however, the case files were transferred to Wright County. When advised of the stay order, Wright County officials sent the files back to Cole County.

The principal issue before us is whether Yarber's case is a contested case. If so, then Yarber is correct that venue is proper in Cole County. § 536.110.3, RSMo 1986. Otherwise, the case can be brought only in Wright County. § 508.010 (1), RSMo 1986.


A contested case is defined in § 536.010 (2), RSMo 1986, as "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after a hearing." Local school boards such as that in Mountain Grove qualify as agencies under this definition because they are created by Missouri statutes from which they derive their rule-making and adjudicatory authority. § 536.010 (1), RSMo 1986. See also Hagely v. Board of Education of Webster Groves School District , 841 S.W.2d 663 (Mo. banc 1992) (MAPA applied to Board of Education of Webster Groves).


We would note, preliminarily, that the failure in this case of the Mountain Grove School District to conduct a formal hearing under contested case procedures presents the issue of whether chapter 536 applies at all. In Hagely , this Court, in dicta, stated:

A hearing that is not held pursuant to the procedural format necessary under MAPA does not qualify as a contested case, even though the hearing is required by law.

Id . at 668-69. However, as pointed out in Weber v. Firemen's Retirement System , 872 S.W.2d 477, 480 (Mo. banc 1994), this language was used to indicate that certain procedural advantages provided to the agency by the MAPA may be lost by the agency if it failed to follow contested case procedures. Id. at n. 3. In the context of the case at hand, § 536.010 (2) mandates that if a hearing is required by substantive law, it must be conducted according to contested case procedures. The relevant inquiry is not whether the agency in fact held a contested case hearing, but whether it should have done so.


The "law" referred to in the contested case definition encompasses any statute or ordinance, or any provision of the state or federal constitutions that mandates a hearing. Weber , 872 S.W.2d at 479; Byrd v. Board of Curators of Lincoln University of Missouri , 863 S.W.2d 873, 875 (Mo. banc 1993). The right to a hearing, in other words, is determined by substantive law outside the MAPA. In this case, neither Yarber nor the school district has directed us to any statute, rule, or ordinance granting Yarber a hearing, nor have we found one independently. The only other possible source for a hearing, therefore, is the constitutional right to due process.

In order to be entitled to a hearing under due process of law, a plaintiff must have either a life, liberty, or property interest protected by the Constitution. Board of Curators of the University of Missouri v. Horowitz , 435 U.S. 78, 82 (1978). Yarber contends that he has a protected property interest in a high school education. Although no fundamental right to education exists under the United States Constitution, San Antonio School District v. Rodriguez , 411 U.S. 1, 34-35 (1972), protected property interests generally derive from state law, Perry v. Sindermann , 408 U.S. 593, 599-603 (1972). In Goss v. Lopez , 419 U.S. 565 (1975), the United States Supreme Court determined that a state-created property interest arose out of Ohio statutes that provided for free public education and compulsory attendance. Goss , 419 U.S. at 573-74. Similarly, in Missouri, § 160.051, RSMo 1986, mandates the establishment of schools for the "gratuitous instruction of children," and § 167.031, RSMo 1986, provides for compulsory attendance. These Missouri statutes establish a property interest in an education no less than the property interests established by the Ohio statutes in Goss .

Any governmental taking of a property right implicates the right to procedural due process and thus requires notice and an opportunity to be heard. Weber , 872 S.W.2d at 479. In Goss , the Supreme Court held that a student suspended even for a de minimis period — 10 days or less — is entitled to notice of the charges against him or her and a hearing consisting of "at least an informal give-and-take between student and disciplinarian." Goss, 419 U.S. at 581-84. The Court also suggested that where the discipline is more than de minimis , a hearing affording more than the informal proceeding in Goss may be required. Goss, 419 U.S. at 584.

In Yarber's case, the penalty imposed — loss of a semester's worth of credit hours — is in no way de minimis; it is instead a considerable infringement on Yarber's property interest. For that reason, we hold that procedural due process requires a hearing with more formal and extensive procedures than that provided in Goss . This, in turn, triggers the contested case provisions of MAPA.

The school district, citing State ex rel. Leggett v. Jensen , 318 S.W.2d 353 (Mo. banc 1958), contends that due process does not require a contested case hearing for all deprivations of life, liberty, or property rights. Implicit in Leggett , according to the school district, is the notion that a de minimis penalty would not require a contested case hearing. We note that Leggett predates Goss and other modern due process cases. In any event, having determined that the penalty imposed upon Yarber is a considerable infringement on his property interest, we need not address the viability of Leggett or the question of whether a contested case hearing is required for a de minimis penalty.


The Supreme Court, in Horowitz , qualified its decision in Goss by determining that procedural due process does not require a hearing when the deprivation is for academic reasons rather than disciplinary reasons. Horowitz , 435 U.S. at 89-91 and n. 3. Consequently, only when the deprivation is for disciplinary reasons does the degree of the deprivation become a factor in evaluating the level of process due. In explaining the academic/disciplinary distinction, the Court stated:

The educational process is not by nature adversary; instead it centers around a continuing relationship between faculty and students, "one in which the teacher must occupy many roles — educator, adviser, friend, and, at times, parent-substitute." . . . In Goss, this Court concluded that the value of some form of hearing in a disciplinary context outweighs any resulting harm to the academic environment. Influencing this conclusion was clearly the belief that disciplinary proceedings, in which the teacher must decide whether to punish a student for disruptive or insubordinate behavior, may automatically bring an adversary flavor to the normal student-teacher relationship. The same conclusion does not follow in the academic context. We decline to further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship.

Id . at 90.

Accordingly, this Court must determine what constitutes an academic as opposed to a disciplinary sanction. In Horowitz , the plaintiff was dismissed from medical school because of her inadequate performance, erratic attendance and lack of personal hygiene. The plaintiff argued that the latter two criteria constituted disciplinary, as opposed to academic, reasons for her dismissal. However, the Court determined otherwise, finding that factors other than grades can also be a part of an individual's academic performance. Thus, a dismissal or other sanction can be based on factors other than grades and yet be considered academic in nature. Id . at n. 6.

As we understand Horowitz , if the sanction relates to the academic evaluation of the student, it is academic rather than disciplinary. Conversely, if the sanction does not bear upon the academic evaluation of the student, it is disciplinary rather than academic. The distinction, we observe, will often be difficult to make as nearly every aspect of a student's conduct has some potential bearing on academic performance.

The question then is squarely posed: Is the attendance policy of Mountain Grove High School academic or disciplinary in nature? If disciplinary in nature, then a hearing is required, and the underlying suit is a contested case. Therefore venue would be proper in Cole County. On the other hand, if the nature of the attendance policy is academic, then a hearing is not required, and the underlying suit is not a contested case. Therefore venue would be proper only in Wright County.

We hold that the Mountain Grove attendance policy, as written and as applied to Yarber, is disciplinary in nature. The policy states that if the student fails to make up the absences, he or she will "lose credit for that semester." It is axiomatic that Yarber must have already earned the credit in order for him to lose it. The attendance provision takes away previously earned credit as punishment for unsatisfactory attendance. If the attendance policy were truly academic in nature, then a passing grade, which by definition is a recognition of sufficient academic performance, should not have been issued because Yarber, due to his absenteeism, would not have fulfilled the academic requirements. While an attendance policy could conceivably be structured to relate to academic performance, the policy in this case does not do so.

Our research has produced only two cases addressing the right to procedural due process in relation to school attendance policy violations. In Campbell v. Board of Education of New Milford , 475 A.2d 289 (Conn. 1984), the Supreme Court of Connecticut found an attendance policy to be academic in nature, rather than disciplinary. Campbell , 475 A.2d at 291-95. However, the attendance policy in Campbell differed significantly in three respects from the Mountain Grove attendance policy: (1) the school withheld credit from the student for missing twenty-four class periods rather than taking away credit already earned; (2) the attendance policy explicitly stated that its purpose was academic; and (3) the student's grades were reduced for each unapproved absence. Id . at 290-291. In Slocum v. Holton Board of Education , 429 N.W.2d 607 (Mich. Ct. App. 1988), the Michigan Court of Appeals never discussed the academic/disciplinary due process distinction, but held, instead, that the student did not possess a property right to unearned grades. Slocum , 429 N.W.2d at 611. Therefore, we find these cases distinguishable and unpersuasive.

We are aware that in Knapp v. Junior College District of St. Louis County , 879 S.W.2d 588 (Mo. App. 1994), the Court of Appeals, Eastern District, held a suspended college student who unquestionably possessed a property right to a semester's education was not entitled to a contested case hearing. The suspension was invoked because of an altercation between plaintiff and a college staff member. One basis for the court's holding was that no formal hearing was required by due process, despite the fact that the suspension was disciplinary in nature. To the extent that Knapp holds that no formal hearing is required for a semester-long suspension, it should no longer be followed.

The applicability of the MAPA to colleges and universities may now be a moot point because the general assembly has enacted § 536.018, RSMo 1994, which states that the term "agency" does not include an institution of higher education that has otherwise established constitutionally adequate safeguards.


Finally, the school district argues that the petition for writ of prohibition should be dismissed for the reason that Judge McHenry had no jurisdiction over the case at the time the petition was filed. According to the school district, once the judge ordered the change of venue and the case was transferred to Wright County, his purported stay order was of no effect, even though the case files were indeed returned to Cole County.

Having decided that Judge McHenry had no authority to transfer the case to Wright County in the first place, the order to transfer, itself, was void. Had the case not been returned from Wright County to Cole County, it would have been necessary for relator to join the appropriate Wright County judge as a party-respondent. See State ex rel. Malone v. Mummert , 889 S.W.2d 822, 826-27 (Mo. banc 1994). That the case is now properly pending in Cole County obviates the need for such joinder.

We make absolute the preliminary writ in prohibition. The trial court shall vacate its order transferring this case to Wright County and shall exercise jurisdiction over the case.

_______________________________ Stephen N. Limbaugh, Jr., Judge

Benton, Price, JJ., Montgomery, Sp.J., and Blackmar, Sr.J., concur; Covington, J., concurs in separate opinion filed; Holstein, C.J., dissents in separate opinion filed. Robertson, J., not sitting. White, J., not participating because not a member of the Court when case was submitted.

I concur completely in the majority opinion. I write separately to note that secondary and elementary schools may want to consider addressing the possibility of exclusion from the full panoply of process dictated by Chapter 536 when a case is deemed to be contested because a hearing is required by law, as did certain institutions of higher education through enactment of section 536.018, RSMo 1994. The majority opinion appropriately does not reach the question of how much process actually is due in a case such as the one sub judice . Applicability of the Missouri Administrative Procedure (Act) in this case, however, appears necessarily to require extensive process. See, e.g. , §§ 536.063, 536.067, 536.068, 536.070, 536.073, 536.077, 536.080, 536.083, RSMo 1994. In addition, the Act provides for the recovery of attorney's fees by a prevailing party. § 536.087.1, RSMo 1994.

The provisions of the Act itself subsume the question of how much process, as a constitutional requirement, would be due in this case. While Goss v. Lopez , 419 U.S. 565, 581-84 (1975), clearly suggests that a hearing affording more than the informal proceeding in Goss may be required, it by no means prescribes in every case the process mandated under the Act. If secondary and elementary schools find the necessary result in this case unduly burdensome, their concern could be addressed by the legislature.

_______________________________ Ann K. Covington, Judge

I respectfully dissent.

The cases relied on by the majority hold that a public school student has a due process property right in education so that the student may not be denied the right to attend classes without a hearing. Horowitz, Goss, Leggett and Knapp all involved a denial of a right to attend a public school or college. By contrast, Yarber makes no claim that he was denied a right to attend public school classes. His claim is that he was denied academic credit.

A student's right to attend school is not equivalent to the student's right to academic credit. Academic credit must be earned. The earning of credit requires not only making minimum grades on papers and tests but also attendance in required classes. A student who is not precluded from attending classes, but fails to attend the minimum necessary to be given academic credit, never earns the credit and, thus, never has a property interest in that credit. The case closest to the issue here is Slocum v. Holton Board of Education , 429 N.W.2d 607 (Mich. Ct. App. 1988), which held that students do not possess a property right in unearned academic credit. 429 N.W.2d at 611. To hold that such property right exists is unprecedented.

The Court should not reach the question of whether a denial of academic credit is academic or disciplinary in nature because Yarber's pleadings demonstrate that he has failed to earn any academic credit in which he has a property right. However, even assuming that such property right exists, I would find that the denial of credit here is academic in nature.

The majority's conclusion that the attendance prerequisites are disciplinary in nature is founded on the "lose credit" wording of the school's policy and the majority's axiom that in order to lose credit, one must have already earned it. If the axiom is true, then the Cleveland Indians did not lose the 1995 World Series and the Buffalo Bills never lost a Super Bowl. The axiom is in error. To lose in sports, as well as in most other pursuits, is not to win and then have the win taken away, but rather to have performed insufficiently to gain credit for a win. A simple dictionary reference discloses that one of the common meanings for the word "lose" is "to fail to win, gain or obtain." Had the school district used the words "credit shall be withheld" in its attendance policy rather than "lose credit," the result here would be different. It seems to me that the majority places form over substance in its narrow interpretation of the attendance policy's "lose credit" language as being per se disciplinary in nature. The constitutional right to a hearing should not depend upon the nuances of the wording of the school's policy. As acknowledged by the majority, the single case in which the issue was raised concluded that an attendance policy was academic in nature rather than disciplinary. Campbell v. Bd. of Educ. of New Milford , 475 A.2d 289, 291-95 (Conn. 1984). To distinguish Campbell based solely upon the wording of the school's policy is to make a distinction without any real difference. Again, the holding of the Court here that the school's attendance policy is disciplinary in nature is unprecedented.

The expansive view of when due process requires an administrative hearing expressed in this opinion underscores the urgency of Judge Covington's suggestion in her concurring opinion that the legislature may wish to redefine what constitutes a contested case, a definition that has remained unchanged since 1957. From 1957 to the present, judicially improvised notions of when due process requires a hearing have altered what the legislature originally meant by a "contested case."

Knapp v. Junior College District of St. Louis County , 879 S.W.2d 588 (Mo. App. 1994), is inapposite. There a college student was suspended from attending college and denied a formal hearing. In the present case, Yarber was not suspended from attending high school, rather he voluntarily chose not to attend. The school district did not deprive him of his property right to a semester's education without due process. Yarber just did not take advantage of the opportunity to attend class. This case does not involve a suspension, expulsion or denial of enrollment.

I would hold that due process does not require an administrative hearing prior to denial of academic credit. If a student feels the denial of academic credit for nonattendance is unlawful, the "uncontested" case judicial procedures afford an adequate remedy to vent such complaints.

The only potential argument for a hearing being required by law is that the board's policy granting an "appeal" creates a right to a hearing. However, Yarber makes no such claim in his brief or pleadings and we need not construct such a claim or argument for him. On the basis of the pleadings and brief presented, no administrative hearing is required. Because no administrative hearing is required, this is an uncontested case and venue for the proceeding below is properly in Wright County. I would quash the preliminary writ.

_______________________________ JOHN C. HOLSTEIN, Chief Justice

Summaries of

State ex Rel. Yarber v. McHenry

Supreme Court of Missouri, En Banc
Dec 19, 1995
915 S.W.2d 325 (Mo. 1995)

following Weber while distinguishing Hagely

Summary of this case from Smith v. City of St. Louis

In McHenry, in which the issue was whether or not a school district's denial of a semester of high school credit hours because of a student's excessive absences was a contested case, the Supreme Court, without any consideration of how formal or informal the hearing was or should have been, decided that his case was a contested case under the definition of § 536.010(2) because the student's constitutional rights required a hearing.

Summary of this case from Herron v. Kempker
Case details for

State ex Rel. Yarber v. McHenry

Case Details


Court:Supreme Court of Missouri, En Banc

Date published: Dec 19, 1995


915 S.W.2d 325 (Mo. 1995)

Citing Cases

State ex Rel. School Dist. v. Williamson

The MAPA is applicable to local school boards (and districts), as they are created by state statute, from…

Smith v. City of St. Louis

Sapp, 320 S.W.3d at 163 (quoting Ladd v. Missouri Bd. of Probation and Parole, 299 S.W.3d 33, 38 (Mo. App.…