MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Dec 10 2018, 9:42 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Dale W. Arnett                                           Sara R. Blevins
Winchester, Indiana                                      Michelle Cooper
                                                         Lewis & Kappes, P.C.
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

S.B. as Next Friend of A.D.,                             December 10, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-MI-1575
        v.                                               Appeal from the Randolph
                                                         Superior Court
Randolph Eastern School                                  The Honorable Peter D. Haviza,
Corporation,                                             Judge
Appellee-Respondent.                                     Trial Court Cause No.
                                                         68D01-1505-MI-446



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MI-1575 | December 10, 2018              Page 1 of 7
                                              Case Summary
[1]   A.D. (“Student”)—by Next Friend S.B., his mother (“Mother”)—appeals the

      grant of summary judgment in favor of Randolph Eastern School Corporation

      (“School”), thereby upholding a 2015 decision to expel Student for several

      months. Student challenges the grant of summary judgment, alleging that

      School failed to comply with a handbook provision concerning representation

      by counsel when his counsel was not permitted to personally participate in his

      expulsion hearing. Having identified no violation of the handbook provision,

      we discern no error. We therefore affirm the decision of the trial court.1



                              Facts and Procedural History
[2]   The undisputed facts are that, in March 2015, Student was accused of using a

      high school computer to sell marijuana. Student and Mother met with the

      principal, and Student was suspended pending expulsion. Mother requested a

      formal expulsion hearing. As to this hearing, the student handbook specified:

      “A requested formal hearing is scheduled with the hearing examiner during

      which the student may be represented by his/her parents and/or legal counsel.”

      Appellant’s App. Vol. II at 132. Counsel for Student arrived for the expulsion




      1
       To the extent School argues the matter is moot, we note that the expulsion remains on Student’s record—
      something Student might have to disclose if he pursues a college education. Moreover, there remains the
      possibility—however small—that a new hearing could result in Student receiving credit for certain classes.
      See, e.g., S. Gibson Sch. Bd. v. Sollman, 768 N.E.2d 437, 442 (Ind. 2002) (observing that a school has discretion
      to award credit based upon the student’s coursework preceding a mid-semester expulsion).

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1575 | December 10, 2018                     Page 2 of 7
      hearing, but was told that he could not attend. Mother and Student ultimately

      attended the hearing while counsel stayed in an office down the hall.


[3]   The hearing examiner decided to temporarily expel student until August 1,

      2015. Mother then appealed the decision to the school board. The board held a

      hearing—that counsel was not permitted to attend—and, on May 4, 2015,

      issued notice of its decision to uphold the expulsion. Student then sought

      judicial review on May 14, 2015. Both School and Student filed motions for

      summary judgment, and the trial court held a hearing on the motions on May

      20, 2016. The hearing focused on whether Student was deprived of due process

      because counsel was not permitted to attend either hearing. At the hearing on

      summary judgment, Student stated that he “did not attack the evidentiary part,”

      but that “[i]t was the procedure of what they did. It was the procedure that they

      used according to their own rules.” Tr. Vol. II at 15. The trial court took the

      matter under advisement and, in June 2018, entered an order (1) denying

      Student’s motion for summary judgment and (2) granting School’s motion.2


[4]   Student now appeals.



                                     Discussion and Decision
[5]   We review de novo whether the trial court properly granted summary judgment.

      See Hewitt v. Westfield Washington Sch. Corp., 46 N.E.3d 425, 429 (Ind. 2015).




      2
          The record does not disclose an explanation for the two-year delay between the hearing and the ruling.


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1575 | December 10, 2018                   Page 3 of 7
      Summary judgment is appropriate only “if the designated evidentiary matter

      shows that there is no genuine issue as to any material fact and that the moving

      party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). In

      conducting our review, we look only to the designated evidence. T.R. 56(H).

      Moreover, upon cross-motions for summary judgment, we separately consider

      each motion to determine whether a movant is entitled to judgment as a matter

      of law. In re Ind. State Fair Litig., 49 N.E.3d 545, 548 (Ind. 2016).


[6]   Here, summary judgment turns on the propriety of the expulsion decision,

      which the school board upheld. According to Indiana Code Section 20-33-8-21,

      judicial review of an expulsion decision “is limited to the issue of whether the

      governing body acted without following the procedure required under” Indiana

      Code Chapter 20-33-8. Student makes no argument that School failed to afford

      him the procedure required under that chapter, taking the position that “[t]he

      minimum [statutory] requirements do not require the right to an attorney.”

      Appellant’s Br. at 8. Nevertheless, despite the purported statutory limitation on

      judicial review, the Indiana Constitution empowers courts to review “whether a

      disciplinary action comports with the minimum requirements of due process.”

      Bd. of Sch. Tr. of Muncie Cmty. Schs. v. Duncan ex rel. Barnell, 678 N.E.2d 799, 803

      (Ind. Ct. App. 1997) (applying Article 1, Section 12 of our constitution).


[7]   At bottom, all of Student’s arguments hinge on the purported failure to comply

      with this handbook provision: “A requested formal hearing is scheduled with

      the hearing examiner during which the student may be represented by his/her

      parents and/or legal counsel.” Appellant’s App. Vol. II at 132. Student asserts

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1575 | December 10, 2018   Page 4 of 7
      that he was entitled to have counsel personally participate in his hearing. Thus,

      as a threshold matter, we examine whether the provision afforded such a right.


[8]   Notably, Indiana Code Section 20-33-8-12 provides that “the governing body of

      a school corporation must,” among other things, “[e]stablish written discipline

      rules” and “make[] a good faith effort to disseminate to students or parents

      generally the text or substance of a discipline rule.” I.C. § 20-33-8-12. Thus,

      the instant handbook procedure is akin to an administrative regulation.3

      “When the meaning of an administrative regulation is in question, the

      interpretation [by] the administrative agency is given great weight unless the

      agency’s interpretation would be inconsistent with the regulation itself.” State

      Bd. of Tax Comm’rs v. Two Mkt. Square Assocs. Ltd. P’ship, 679 N.E.2d 882, 886

      (Ind. 1997). Furthermore, “the foremost goal of regulatory construction—like

      with statutory interpretation—is to give the words and phrases in the

      regulations their plain and ordinary meaning, within the context of the

      regulatory scheme in a way that reflects the intent of the agency that

      promulgated the regulations.” Nat. Res. Def. Council v. Poet Biorefining-N.

      Manchester, LLC, 15 N.E.3d 555, 564 (Ind. 2014).




      3
        We note that a school corporation is a municipal corporation. I.C. § 36-1-2-10. Our legislature excluded
      municipal corporations from the purview of the Administrative Rules and Procedures Act. See I.C. § 4-22-2-3
      (excluding “a political subdivision as defined in IC 36-1-2-13” when defining “agency”); I.C. 36-1-2-13
      (providing that “‘[p]olitical subdivision’ means municipal corporation or special taxing district”). Our
      legislature also excluded municipal corporations from the purview of the Administrative Orders and
      Procedures Act. See I.C. § 4-21.5-1-3 (excluding “a political subdivision” when defining “agency”); I.C. 4-
      21.5.-1-12 (giving “political subdivision” the meaning “set forth in IC 36-1-2-13”). Nevertheless, in matters
      of school discipline, schools are functioning like administrative bodies. See Sollman, 768 N.E.2d at 441.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1575 | December 10, 2018                 Page 5 of 7
[9]    Here, School directs us to designated evidence that School has consistently

       interpreted the provision to mean that a student “has the opportunity to talk to

       the legal counsel, just the legal counsel is not . . . in the hearing.” App. Vol. II

       at 112. According to School, its procedure accorded with the handbook

       because “counsel was on-site and A.D. was permitted to step out of the meeting

       to confer with counsel had [he] chosen to do so.” Br. of Appellee at 16.


[10]   We observe that Indiana schools should comply with their own handbooks, just

       as schools expect students to follow the rules. Here, the handbook provision

       makes an unartfully bare reference to counsel that opens itself to interpretation.

       Nonetheless, within the context of student discipline, we cannot say that

       School’s interpretation is inconsistent with the handbook provision itself.

       Rather, the provision specified that Student “may be represented” by counsel

       during the expulsion hearing, and Student could have consulted with counsel

       during the hearing. This interpretation is not tantamount to a lack of

       representation. Further, in other contexts, this Court has recognized the

       advantages of less-adversarial disciplinary proceedings, observing that “[t]o

       further escalate the formality . . . of the suspension process ‘may not only make

       it too costly as a regular disciplinary tool but also destroy its effectiveness as []

       part of the teaching process.’” Reilly v. Daly, 666 N.E.2d 439, 444 (Ind. Ct.

       App. 1996) (quoting Goss v. Lopez, 419 U.S. 565, 583 (1975)), trans. denied; see

       also Lake Cent. Sch. Corp. v. Scartozzi, 759 N.E.2d 1185, 1190 (Ind. Ct. App.

       2001) (recognizing that when an expulsion hearing occurs without counsel, “the

       student, administrators and other participants . . . can concentrate on the


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1575 | December 10, 2018   Page 6 of 7
       student and the issues at hand without the focus being shifted to the attorneys

       and their legal maneuvering”).


[11]   As we conclude that the handbook provision did not guarantee the presence of

       counsel at the hearing itself, Student has not directed us to error. Thus, the trial

       court properly granted summary judgment in favor of School. Nevertheless, we

       remind schools of the importance of complying with their adopted procedures.


[12]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1575 | December 10, 2018   Page 7 of 7
