# FILED

June 6, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

WHITNEY LEIGH DAVIDSON, minor ) KNOX CHANCERY child, by next friend, ROZAN ) DAVIDSON, ) ) Plaintiffs/Appella nts ) NO. 03A01-9702- CH-00051 ) v. ) HON. WILLIAM EVERETT LANTRIP ) CHANCELL OR, By Inte rchange DONNA WRIGHT, ET AL, ) ) Defendants/Appellees ) ) AFFIRMED

W illiam A. (Bill) Davidson, Knoxville, for Appellants. Catherine F. Quist, Knoxville, for Appellees.

O P I N I O N

INMAN, Se nior Jud ge I The Knox County

Board of Education a dopted a policy against the possession of weapons on sc hool campuses for th e school year beginni ng in September 1995. Whitney Leigh Davi dson was pr ovided a copy

of the West High School Handbook which ex plained the poli cy and the consequences of it s violat ion. On Januar y 23, 1996, whil e a junior at West High School, she was suspended for a v iolation of the policy. Follow ing a seri es of administrati ve hearing s the Board of Educat ion held a plenary hear ing and upheld the decision t o expel Ms Davidson for one year. Judicial review resulted in a finding that t he Board had not act ed arbitrar ily, i llegally or beyond its juris diction in ex pelling M s. David son. This appeal by

Ms. Dav idson presents for appellate review the issue, as paraphrased, of w hether she was deprived of due process and equal protec tion of the law. She also questions the acti on of the Board in dec lining to allow her to attend an alternat ive school followingher expuls ion from West High.1 A kni fe, eight een inch es in lengt h, co ncea led in a can e. It is adm itte dly a

dangerous weapon. 2 Our standard of review permits us to determine wh ether the board’ s action was ill egal, in excess of its ju risdicti on, or arbitr ary or capricious. Laidlaw Environm ental Servic

e of Nashvil

le v. Metr

opolitan, 934 S.W.2d 40 (Tenn. Ct. App. 1996); McCallen v. City of Memphis, 786 S.W .2d 633, 638 (Tenn . 1990). II On the night of January 17, 199 6, Ms. Dav idson had a teleph one convers ation with a st udent friend, DeVon Logan, who told her that he had purchased a canesword. 1 Logan attended Powell High School and on the morning following his conversati on with M s. David son took the weapon to Powel l High Sc hool. At noon on January 18, 1996, Ms. Dav idson and a friend, Clagget t, drove to

Powell H igh School in Ms. Dav idson’s car

and picked up Log an, with hi s cane swo rd, whic h he showed to Ms. Davidson. They eventually drove to Powell Middle School to attend a basketball game. Ms. D avidson and C laggett de cided to leave early, and Logan req uested that she “get his stuff” from her car. She retrieved Logan’s book bag and the cane -sword and gave the m to him. The cane-sword was later confis cated by a s ecurity guard, who report ed the incident to the Powel l High Sc hool princi pal, who reported it to t he West High School princ ipal, Donna Wright. Principal W right notified Ms. Davidson and her parents tha t a disciplinary hearing would be held on Ja nuary 23, 1996 to consider w hether she had v iolated the no-weapons po licy by

possessing a dangerous weapon on school g rounds. In the interim the Knox

County Sch ools Securit y Department

investi gated the inci dent and filed a report w ith Princi pal Wright which revealed that s he admitted havi ng the canesword at the basketball game. At the hear ing before Pri ncipal Wright she admitted that she had the can e-sword in her car, and that she deli vered it to Logan at the game. Ms. D avidson was represented by counsel at the hearing before Princip al Wright, who suspended her pending a re commendation of expul sion.3 Ms. Davidson appealed, and on Febru ary 1, 1996 another hearing was held before the disciplinary-hearing authority for the Board, Jimmie Thacker. T his was a de novo hearing, and Ms. Dav idson was again represented by cou nsel. The decision of Pri ncipal Wright was upheld. On March 6, 19 96, Ms. Dav idson appeared before the Board of Educatio n, still represented by counsel. The Board e lected to hear the matte r on the record from the Hearing Authority, and voted to up hold the decision of th e Disciplinary Hear ing Au thor ity. A petition for c ertiorari was filed M arch 11, 1996. The C hancellor hear d the matter de novo

on August 14 and 15, 1996 and concl uded that the Board had not acted arbitrarily, illegall y or beyond its juri sdiction and t hat Ms. Dav idson had been afforded due process at every stage. III This appeal pres ents the issues of (1) whet her the Board v iolated the appellant’s due process rights; (2) whether the Board act ed illegally and arbitrarily and in exces s of its juri sdiction; ( 3) whether the appellant was denied equal protection, ( 4) whether

the Board v iolated its own polic y in refusi ng to allow

the appellant to atten d an alternativ e school; (5) whether th e indivi dual defendants should have be en dismissed. IV The policy ad opted by the Boar d was dis seminated to each student. The appell ant con ceded h er kno wled ge of th e poli cy, w hich we repr oduce verbati m: KNOX COU NTY BOARD OF EDUCATION Weapons & Dangerous Instruments Students shall not possess, handl e, transmit, us e or attempt to us e any dangerous weapon in school buildings or on school g rounds at any time, or in s chool vehi cles and/or bus es or off the school grounds at a school-sponso red activ ity, functio n or event. Dangerous weapons for the purpose of this policy shall include, but are not limited to “ . . . any firearm, explosive, explosive weapon, Bowie knife, hawk bi ll knife, ic e pick, dagg er, sling shot, swi tchblade knife, blackjack k nuckles . . . ” Students who are found to have v iolated this policy s hall be subjec t to suspension and/or

expulsion for a period of not l ess than one (1) year.4 The Superintendent sh all have t he authority to modify this

suspension requirement on a case-by-case basis. When it is determined that a stu dent has vio lated this pol icy, the principal of the school shall notify the st udent’s parents or guardi an and the c rimin al jus tice or juve nile delin quen cy syste m as r equir ed by l aw. Students are further

forbidden to use any

instruments or

substances such as chemica ls, pencils , scissor s, razor s, or compasses

with the intent to do harm on in a ma nner which renders the item dangerous. Students who violate th is policy shall be subj ect to suspensi on and/or expulsion. Upon information that a student is suspected of vi olating thi s policy , the prin cipa l of t he sc hoo l sha ll be n otif ied im med iate ly. The principal shall notify the student’s p arent or gua rdian and the app ropr iate law en for ceme nt of fici als a s requ ired by law. The appellant doe s not deny her knowledge of the policy, as previously stated; neither does she deny that she possessed the can e-sword in her automobile while on ( 1) the Powel l High Sc hool campus, (2) the Karns Hi gh School campus , and (3) the Powell Middle School campus. We are constrained to make shor t shrift of the lac k of due process ar gument, in light of the myriad, met iculous efforts by the school sy

stem to afford the appell ant a litany of hearings, al l of which were directed to the substanti ve issue of whether she violated a Board policy known to her. The School Securi ty Act of 1981 (T. C. A. 49-6- 4201 et seq. ) comprehensively addres ses the imperati ve need for a safe env ironment in the school systems of Tenness ee. It authori zes the sear ch of areas of buildi ngs or g rounds where dang erous weapons may be stored; it requ ires the local Board of Educati on to file with the State Commiss ioner of Education a writt en policy respecting violent a nd dangerous weapons, and to impose swift, certai n and severe di

sciplinar y action on any student who bring s a dangerous weapo n onto school property. The Act authorizes

the school pr incipal to s uspend any stu dent for possessi on of a knife on school proper

ty for a spec ified period of time. Thus it is that the appellan t not only violated a lawful Board policy, but also violated a specific statut ory prohi bition agai nst the possess ion of knives . That the Board acted normal ly in the adoption of the quoted policy is not dispute d, in lig ht of2 See Tennessee Attorney General Opini on 93-43.

5 the fact that eig hteen (18) stabb ings occur red on school p roperty du ring the preceding t

wo year s. The Board has a

compelling interest i n the welfare and safety of the students. Cheena v. Thom pson, 67 F.3rd 883 (9th Cir. 1995). The denial of equal protection argument is based on the history of lesser disciplina ry acti ons imposed by principals , or the Hear ing Officer, or the Board, on various students who possessed knives on campus. T his issue is not extensively briefed, and weare cited to no authority which hol ds that the sanct ions imposed must be uniform. Suffice to say that di ffering facts inter vene in each instance. The issue of alternative schoo l assignment was not di scussed by

the Chancellor. T. C. A. § 49-6- 3402(a) prov ides in perti nent part: Local boards of education may establish al ternative schools for students in g rades one (1) through si x (6) w ho have been sus pended or expe lled from thei r regu lar sc hoo l prog ram. At lea st on e (1) a ltern ative school shall be established and availabl e for students in grades seven (7) throug h twelve (12) w ho have been sus pended or expel led as provided i n this part. The provision of assignment to alternative schools for expelled students is a permissive act of the local Board of Education. 2 The Boa rd has th e power to a ssign students as desc ribed in T. C. A. § 49-6-3102 a nd may consid er 22 factors i n the assignment of them . Any one or more of the fa ctors can be considered in determining the propriety of an assignment of a student. The provisi on for alternati ve schools for suspended or ex pelled students as provided by T.C.A. § 49-6-3102 does no t remove the discretion allowed the Board in assignment of pupi ls as descr ibed in T.C.A. §49-6-3102 and 3103. We are of the opinion that the assignmen t by the Board of a student to an alternative school is within t he sound discretionary au thority of the Board. In view of our disposit ion of this appeal, the propriety of the dismissal of the individual defendants is moot.6 The judgment is affirmed at the costs of the appellant.

___________________________________ W illiam H. I nman, Senior Ju dge CONCUR:

_______________________________ Housto n M. Godd ard, Pre siding Jud ge

_______________________________ Charles D. Susano , Jr., Jud ge