Appeal and Error; Schools and Education--mootness--school suspension
Respondent board of education's appeal from the trial court's order reversing the board's
imposition of a long-term suspension of petitioner from high school for drug possession is
dismissed as moot, because: (1) petitioner's suspension was for the remainder of the 2002-2003
school year and that school year has now ended; (2) even if the Court of Appeals were to reverse
the decision of the court, the board would have no authority to resuspend petitioner when
N.C.G.S. § 115C-391(c) provides that schools in our state are authorized to suspend students for
periods of times in excess of ten school days not exceeding the time remaining in the school
year; and (3) respondent failed to show an exception to the mootness doctrine when the issues
concern evidence particular to this case and are thus not capable of repetition.
Staton, Perkinson, Doster, Post & Silverman, by Norman C.
Post, for petitioner-appellees.
Love & Love, P.A., by Jimmy L. Love, Sr., for respondent-
appellant.
HUDSON, Judge.
On 18 October 2002, superintendent Dr. Barry L. Aycock (“Dr.
Aycock”) suspended petitioner J.S.W. from Lee County Senior High
School for the remainder of the 2002-2003 school year. On 25
November 2002, respondent Lee County Board of Education (“the
Board”) affirmed the superintendent's decision to impose a long-
term suspension. Petitioners filed a petition for judicial review,
and on 17 July 2003, Superior Court Judge Ripley E. Rand entered an
order reversing the order of the Board and remanding the matter tothe Board for further action. The Board appeals. For the reasons
discussed below, we dismiss this appeal as moot.
On 11 October 2002, J.S.W. was a sophomore at Lee County
Senior High School in Sanford, North Carolina. Teachers discovered
two bags of white powder in J.S.W.'s possession, which the State
Bureau of Investigation later determined contained some amount of
cocaine. Assistant Principal Gregory D. Batten (“Batten”) imposed
a ten-day out-of-school suspension and recommended that J.S.W. be
considered for suspension for the remainder of the school year.
That same day, J.S.W. and his mother, along with Batten, signed an
agreement indicating their intention to enroll in an approved
program, the Saving Families Through Education (“SAFTE”) program.
On 18 October 2002, Dr. Aycock notified J.S.W. and his parents
by letter that J.S.W. would be suspended for the remainder of the
school year. On 24 October 2002, petitioners notified the Board
that they planned to appeal J.S.W.'s suspension, and asked Dr.
Aycock to reconsider his decision. On 29 October 2002, Dr. Aycock
responded by letter, reaffirming his decision. On 13 November
2002, petitioners requested a hearing before the Board. At a 22
November 2002 hearing, petitioners gave testimony and presented
evidence. On 25 November 2002, the Board affirmed Dr. Aycock's
decision to suspend J.S.W. for the remainder of the school year.
On 3 December 2002, petitioners filed a petition for judicial
review of the Board's decision. Following a hearing, the court
entered an order reversing the Board's imposition of the long-term
suspension on J.S.W. Two documents set out the disciplinary options here. First,
pursuant to the Lee County Schools Code of Conduct, first-time
offenders, like J.S.W., can avoid long-term suspension by agreeing
to participate in an approved alternative drug education program.
Rule 11 of the Code of Conduct states that:
Violation of this rule shall result in school
disciplinary action, which shall be, at a
minimum, long-term suspension and may result
in expulsion. However, a student and parent
or guardian agreement to participate in an
alternative drug education program shall
result in modification of the disciplinary
action. Satisfactory completion of an
administratively approved education program
shall result in a reduction of the suspension
for the first offense
Also, the Lee County Senior High School Handbook section on Level
II Disciplinary Action Severe Infractions provides:
If the student, with the parent or guardian,
agree to participate in an alternative
drug/alcohol education program, the principal
may modify disciplinary action. Satisfactory
completion of an administratively approved
education program will result in a 10 day
suspension for the first offense, and a
subsequent offense will result in long term
suspension.
J.S.W. and his parents first argue that this issue is moot and
that appellate review is not appropriate. Our Supreme Court has
held that:
[w]henever, during the course of litigation it
develops that the relief sought has been
granted or that the questions originally in
controversy between the parties are no longer
at issue, the case should be dismissed, for
courts will not entertain or proceed with a
cause merely to determine abstract
propositions of law.
In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912, cert.
denied, Peoples v. Judicial Standards Comm., 442 U.S. 929, 61 L.
Ed. 2d 297, 99 S. Ct. 2859 (1979) (citations omitted). Here,
J.S.W.'s suspension was for the remainder of the 2002-2003 school
year, and that school year has now ended. Schools in our state are
authorized to suspend students “for periods of times in excess of
10 school days but not exceeding the time remaining in the school
year. . . .” N.C. Gen. Stat. § 115C-391(c) (2001). Thus, even
were we to reverse the decision of the court below, the Board would
have no authority to re-suspend J.S.W.
However, even when an issue is moot, we will consider the
merits if the issue is “capable of repetition yet evading review.”
In Re Jackson, 84 N.C. App. 167, 171, 352 S.E.2d 449, 452 (1987)
(holding that N.C. Gen. Stat. § 115C-391 did not limit a school
board's right to suspend students who were under the juvenile
court's jurisdiction and that the Juvenile Code contained no
legislatively granted authority to interfere with a school's
disciplinary procedures). To apply this exception to the mootness
doctrine, petitioners must show that the challenged action is “in
its duration too short to be fully litigated prior to its cessation
or expiration” and that there is a reasonable expectation that the
same issue would arise again. Crumpler v. Thornburg, 92 N.C. App.
719, 723, 375 S.E.2d 708, 711 (citation omitted), disc. review
denied, 324 N.C. 543, 380 S.E.2d 770 (1989). We conclude that this
exception does not apply here. In its first two arguments, respondent contends that the court
erred (1) in concluding that J.S.W.'s suspension was not supported
by substantial evidence, and (2) in finding that the suspension was
arbitrary and capricious. These two issues concern only the
evidence peculiar to this case, and thus are not “capable of
repetition.”
Respondent next argues that the court erred as a matter of law
in imposing a long-term suspension on J.S.W. despite his completion
of the SAFTE program. Respondent contends that the Lee County
Senior High School Handbook provision quoted above gives the
principal and Board discretion to modify or not modify a first-time
offender's long-term suspension following completion of the SAFTE
program, while the Code of Conduct does not. As we have concluded
that this appeal is moot, we decline to address the merits of this
argument.
Dismissed.
Judges TYSON and BRYANT concur.
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