ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
J. ROBERT KINKLE RAY M. DRULEY
Hall, Partenheimer & Kinkle Fort Branch, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA SCHOOL BOARDS
JULIE M. SLAVENS
ATTORNEY FOR AMICUS CURIAE
INDIANA ASSOCIATION OF PUBLIC
SCHOOL SUPERINTENDENTS AND
INDIANA ASSOCIATION OF SCHOOL
DAVID R. DAY
Johnson, Smith, Pence & Heath LLP
SUPREME COURT OF INDIANA
SOUTH GIBSON SCHOOL BOARD, )
Appellant-Defendant, ) Supreme Court Cause Number
TRENT SOLLMAN, DONALD SOLLMAN ) Court of Appeals Cause Number
and MARILYN SOLLMAN ) 26A01-9906-CV-222
APPEAL FROM THE GIBSON SUPERIOR COURT
The Honorable Earl G. Penrod, Judge
Cause No. 26D01-9903-MI-0004
ON PETITION TO TRANSFER
May 24, 2002
Gibson Southern High School has a zero-tolerance drug policy. In essence, any
student found in possession of drugs is expelled from school. When a
small amount of marijuana was found in the truck of junior student Trent
Sollman with only three days left in the fall semester, he was not
only expelled from school for the balance of the year, but also he
was denied credit for all course work previously completed that semester. On
review, the trial court determined that the policy of summarily denying credit to
a student suspended and later expelled without regard to whether the student had
completed sufficient course work to earn a passing grade prior to the suspension
was arbitrary, capricious, and an abuse of discretion. The Court of Appeals
agreed. South Gibson Sch. Bd. v. Sollman, 728 N.E.2d 909, 914 (Ind.
Ct. App. 2000). Concluding that insufficient deference was given to the schools
disciplinary decision, we grant transfer and reverse in part the judgment of the
Facts and Procedural History
Student discipline rules for the South Gibson School Corporation proscribe certain conduct including
the possession of marijuana.
See footnote For several years there has been in place
a zero-tolerance policy concerning drugs, the application of which results in the maximum
expulsion allowed by law. R. at 202. The policy has been
consistently applied at Gibson Southern High School as well as other schools in
the South Gibson School Corporation. According to the school superintendent, after reviewing
case files he found that for the twenty-year history that he has served
as superintendent, [w]hen drugs were the offense, the recommendation from the high school
principal was expulsion and in each and every case it was expulsion.
R. at 199.
Although the exact date is not clear, the record shows that Sollman attended
a general assembly at the school that included grades nine through twelve.
R. at 162. Teachers were there; the Gibson County Prosecutor was present
as well as members of the Gibson County Sheriffs Department. Drug-sniffing dogs
were brought in, and there was a demonstration of how the dogs could
indeed locate hidden marijuana. Underscoring the schools zero-tolerance policy, the superintendent advised
the students [i]f we find it on your person, in your locker, or
in your vehicle, then we are going to we will consider that
you will be in possession and it will be dealt with [as] an
expulsion. R. at 162.
On December 17, 1998, a drug-sniffing dog found a small amount of marijuana
in Sollmans truck that was parked in a lot on Gibson Southern High
School property. There were three days left in the fall semester.
The Gibson Southern principal suspended Sollman effective immediately. He also recommended to
the superintendent that Sollman be expelled and that an expulsion examinerSee footnote be appointed
to conduct the necessary expulsion proceedings. An expulsion examiner was appointed accordingly,
and he convened a meeting at which Sollman, his parents, and legal counsel
were present. After evidence was presented and arguments heard, the examiner issued
a written summary of the evidence. He concluded by expelling Sollman from
school. Specifically, the expulsion examiner determined Trent Sollman will not be allowed
to complete the first semester, the second semester, nor summer school of the
1998 99 school year. He will be allowed to enter GSHS
again for the fall semester of the 1999-2000 school year. R. at
Sollman appealed to the South Gibson School Board. After a hearing, the
School Board returned the matter to the expulsion examiner for further proceedings.See footnote Subsequently,
the expulsion examiner issued a revised report again determining that Sollman would be
expelled until the fall semester of the 1999-2000 school year. This determination
also was appealed to the School Board, which upheld the examiners determination.
On March 19, 1999, Sollman along with his parents filed a petition for
judicial review. By that time, grades for the fall semester of 1998
had been posted, and Sollman received no grades or credits for the period.
As a result, the petition for review not only challenged the expulsion
but also the denial of grades and credits.
After conducting a hearing, the trial court determined that the ordered expulsion must
end on the last day of the spring semester and could not extend
through the summer session. As for the denial of grades and credits,
finding the School Boards action arbitrary and capricious, the trial court ordered that
Sollman was to be given zeros for all fall semester course work that
he missed after the expulsion but was then to be given credit for
those courses in which he had a passing grade after taking the zeros
into account. The School Board appealed, and the Court of Appeals affirmed.
Having previously granted transfer, we now affirm in part and reverse in
part the judgment of the trial court.
The Court of Appeals agreed with the trial court that Sollman could not
be expelled beyond the last day of the spring semester. According to
the Court of Appeals, the statute defining school year, Indiana Code section 20-10.1-2-1(a),
and the statute limiting the expulsion period for misconduct in the fall semester
to the remainder of the school year, Indiana Code section 20-8.1-5.1-14(a), were not
intended to include summer school within the period of expulsion that may be
imposed for conduct occurring in the fall semester.
Sollman, 728 N.E.2d at
918. We agree and summarily affirm the Court of Appeals opinion on
this issue. See Ind. Appellate Rule 58(A)(2). We disagree, however, that
the School Board acted arbitrarily and capriciously in denying Sollman credit for the
The record shows that before the trial court Sollman took the position that
[n]othing in the statute permits the school corporation to take away credits already
earned . . . . Depriving Trent Sollman of his first semester
credits is a clear violation of due process and clearly an arbitrary and
capricious act. R. at 66. He cited no authority for the
latter assertion. In agreeing that the schools policy of denying credit was
indeed arbitrary and capricious, the trial court acknowledged that the action taken against
Trent was consistent with the action taken in similar cases. That is,
if a student is removed from school before the end of the semester,
credit for that semester is not granted. R. at 119. However,
the trial court determined that the policy was flawed because it did not
distinguish between those students who earned passing grades in spite of missed assignments
and those who did not. R. at 124. In essence, the
trial court determined that precisely because every student is treated the same, the
School Boards policy is arbitrary and capricious.
A school board is an administrative body. See I.C. § 20-4-1-3(5).
And as with any administrative body, judicial review of its decisions is narrow.
An agency decision will not be overturned unless it is purely arbitrary
or an error of law has been made. Ind. State Bd. of
Pub. Welfare v. Tioga Pines Living Ctr., Inc., 622 N.E.2d 935, 939 (Ind.
1993); see also I.C. § 4-21.5-5-14(d).
We understand the sentiment implicit in the trial courts order and expressed by
some commentators concerning the harshness of so-called zero-tolerance policies.
See footnote However, it is
not the role of the courts to set aside decisions of school administrators
which the court may view as lacking a basis in wisdom or compassion.
. . . The system of public education that has evolved in
this Nation relies necessarily upon the discretion and judgment of school administrators and
school board members. . . .
Wood v. Strickland, 420 U.S. 308,
326 (1975). The question in this case is whether the decision of
the School Board was arbitrary and capricious.
We have said [a]n action of an administrative agency is arbitrary and capricious
only where there is no reasonable basis for the action. Ind. Civil
Rights Commn v. Delaware County Cir. Ct., 668 N.E.2d 1219, 1221 (Ind. 1996);
compare City of Indianapolis v. Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App.
1998) (An arbitrary and capricious decision is one which is patently unreasonable.
It is made without consideration of the facts and in total disregard of
the circumstances and lacks any basis which might lead a reasonable person to
the same conclusion.). The burden of proving that the administrative action of
the school was arbitrary or capricious falls on the party attempting to upset
the administrative decision. Forrest v. Sch. City of Hobart, 498 N.E.2d 14,
17 (Ind. Ct. App. 1986).
Indiana Code section 20-8.1-5.1-3 provides:
(a) Student supervision and the desirable behavior of students in carrying out school
purposes is the responsibility of a school corporation and the students of a
(b) In all matters relating to the discipline and conduct of students, school
corporation personnel stand in the relation of parents and guardians to the students
of the school corporation. Therefore, school corporation personnel have the right, subject
to this chapter, to take any disciplinary action necessary to promote student conduct
that conforms with an orderly and effective educational system.
(c) Students must follow responsible directions of school personnel in all educational settings
and refrain from disruptive behavior that interferes with the educational environment.
I.C. § 20-8.1-5.1-3 (emphasis added). In turn, Indiana Code section 20-8.1-1-10(a)(2) defines
expulsion in relevant part as a disciplinary or other action whereby a student
. . . is separated from school attendance for the balance of the
current semester or current year unless a student is permitted to complete required
examinations in order to receive credit for courses taken in the current semester
or current year[.] In this case, Sollman was not allowed to complete
required examinations in order to receive credit for the courses he had taken
during the semester. He was thus expelled as a disciplinary sanction within
the meaning of the statute. And although we do not agree with
the view that the statute mandates a loss of credit upon expulsion,
See footnote we
do acknowledge that the School Board has the discretion to impose such a
In order to promote student conduct which conforms with an orderly and effective
educational system, a school board could understandably reach the conclusion that the deterrent
of expulsion, uncoupled from a loss of credit, may not be a deterrent
sufficient enough for a student to avoid being expelled. If a student
knows for example that the ultimate consequence of violating school policy is expulsion
only, then the student may assume the risk of getting expelled where he
has already accumulated sufficient grades to pass the semester. In that instance,
the disciplinary sanction for misbehavior is appreciably lessened, leaving only a penalty students
might consider an incentive to misbehave. We also note that a consistently
applied policy weighs against the notion that it is arbitrary.
High Sch. Athletic Assn, Inc. v. Carlberg, 694 N.E.2d 222, 233 (Ind. 1997)
(finding no arbitrariness or capriciousness in part because of consistent application of the
athletic associations interpretation of transfer rule) with Crane v. Ind. High Sch. Athletic
Assn, Inc., 975 F.2d 1315, 1325 (7th Cir. 1992) (finding arbitrariness and capriciousness
under same rule partly because guidelines were inconsistently applied). In this case,
the record shows that all students are treated the same under the schools
policy regardless of when the misconduct occurred or the status of the students
Deterring disciplinary problems in its school system is the basis upon which the
School Board has adopted its expulsion/no credit zero-tolerance policy regarding drugs. Whether
the School Board should re-examine its policy is not a matter for the
courts to decide. As the Court of Appeals has observed, School officials,
with their expertise in such matters, are in the best position to determine
in their discretion what actions are reasonably necessary to carry out school purposes
. . . . Bd. of Sch. Trustees v. Barnell, 678 N.E.2d
799, 805 (Ind. Ct. App. 1997). We agree. As applied here,
we cannot say there was no reasonable basis for the School Boards action.
Ind. Civil Rights Commn, 668 N.E.2d at 1221. Accordingly, Sollman failed
to carry his burden of demonstrating that the School Board acted arbitrarily and
capriciously in depriving him of his fall semester credits. On this issue,
the judgment of the trial court is reversed.
We reverse that portion of the trial courts judgment ordering the School Board
to award Sollman zeros for the fall semester course work that he missed
after the expulsion and to give Sollman credit for those courses in which
he had a passing grade after the zeros are taken into account.
In all other respects, the judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
The full text of the rules is not a part of
the record. However, the record does reveal that Sollman was officially charged
with violation of SGSC Policy Section VI-F-3-a-(1)(2)(10)(11)(13)(14)(16). R. at 19. According
to Amicus Indiana School Boards Association, the text of the relevant rules is:
(10) Knowingly possessing, using, transmitting, or being under the influence of any Controlled
Substance as defined by Indiana Statutes, including, but not limited to, a narcotic
drug, hallucinogenic drug, amphetamine, barbiturate, or marijuana; an alcoholic beverage; or intoxicant of
any kind; (a) on the school grounds during and immediately before or immediately
after school hours; (b) on the school grounds at any time when the
school is being used by any school group; or (c) off the school
grounds at a school activity, function, or event.
(11) Violation of any criminal law.. . .
(13) Engaging in any activity forbidden by the laws of the State of
Indiana which constitutes an interference with school purposes.
(14) Failing to comply with tobacco restrictions.
Brief of the Amicus Curiae to the Court of Appeals, Indiana School Boards
Association at 4. The parties to this appeal do not contest Amicus
See Ind. Code § 20-8.1-5.1-13(a) (authorizing school superintendent to conduct an
expulsion meeting or appoint a third party to conduct the meeting).
Specifically, in his factual recitation the expulsion examiner declared, Whether Trent
knew the marijuana was there or not, he still is responsible for the
contents of his vehicle . . . . R. at 38.
The School Board directed that the matter should be returned to the examiner
to determine whether the element of knowledge was proved, and if so, the
facts the examiner relied upon to so find. R. at 34.
Footnote: Although it is difficult to find a written definition of the
term zero-tolerance, since its inception in federal drug policy of the 1980s, it
has been intended primarily as a method of sending a message that certain
behaviors will not be tolerated, by punishing all offenses severely, no matter how
minor. Russell J. Skiba, Ind. Educ. Policy Ctr., Zero Tolerance, Zero Evidence:
An Analysis of School Disciplinary Practice 2 (Aug. 2000) (observing there is
little evidence that the strategies typically associated with zero tolerance contribute to improved
student behavior or overall school safety).
See Brief of the Amicus Curiae to the Court of Appeals,
Indiana School Boards Association at 3 (arguing [t]he South Gibson School Board by
statute had to deny Trent Sollman his first semester credits.) (emphasis added).