COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70004 IN RE: SUSPENSION OF : ALFRED DREYFUS, ET AL. : : Appellants : : JOURNAL ENTRY -vs- : AND : OPINION LAKEWOOD CITY SCHOOLS : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-292167 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellants: BRUCE G. VAN VALKENBURGH (#0022776) 12768 CHILLICOTHE ROAD CHESTERLAND, OHIO 44026 For Defendant-Appellee, Lakewood City Schools: THOMAS E. GIFFELS (#0038674) Flanagan, Blackie & Giffels Co., L.P.A. 55 Public Square, Suite 1331 Cleveland, OH 44113 - 2 - SPELLACY, C.J.: Student "Alfred Dreyfus" ("Dreyfus") and his parents appeal the judgment of the trial court granting the Lakewood City School Board's ("the board") motion to dismiss. Dreyfus assigns the following errors for our review: I. THE COURT OF COMMON PLEAS FOR CUYAHOGA COUNTY ERRED IN GRANTING THE MOTION OF THE LAKEWOOD CITY SCHOOL DISTRICT TO DISMISS THIS ACTION ON THE GROUNDS THAT THE ACTION WAS MOOT. II. THE COURT OF COMMON PLEAS FOR CUYAHOGA COUNTY ERRED IN GRANTING THE MOTION OF THE LAKEWOOD CITY SCHOOL DISTRICT TO DISMISS THIS ACTION WHERE, IF THE ACTION IS DETERMINED TO BE MOOT, THE SITUATION IS CAPABLE OF REPETITION, YET EVADE REVIEW. III. THE COURT OF COMMON PLEAS FOR CUYAHOGA COUNTY ERRED IN GRANTING THE MOTION OF THE LAKEWOOD CITY SCHOOL DISTRICT TO DISMISS THIS ACTION WHERE SECTION 3313.66(E) OF THE OHIO REVISED CODE PROVIDES FOR A HEARING TO REVIEW THE SUSPENSION, AND WHERE THE LAKEWOOD CITY SCHOOL DISTRICT FAILED TO PROVIDE SUCH A FAIR HEARING. IV. THE COURT OF COMMON PLEAS FOR CUYAHOGA COUNTY ERRED IN GRANTING THE MOTION OF THE LAKEWOOD CITY SCHOOL DISTRICT TO DISMISS THIS ACTION CONTRARY TO THE OHIO SUPREME COURT HOLDING IN IN RE APPEAL OF SUSPENSION OF HUFFER FROM CIRCLEVILLE HIGH SCHOOL (1989), 47 OHIO St.3d 12. V. THE COURT OF COMMON PLEAS FOR CUYAHOGA COUNTY ERRED IN GRANTING THE MOTION OF THE LAKEWOOD CITY SCHOOL DISTRICT TO DISMISS THIS ACTION IN VIOLATION OF APPELLANT'S RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF LAW UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 16 AND 2 OF THE OHIO CONSTITUTION. VI. THE COURT OF COMMON PLEAS FOR CUYAHOGA COUNTY ERRED IN GRANTING THE MOTION OF THE LAKEWOOD CITY SCHOOL DISTRICT TO DISMISS THIS ACTION - 3 - WHERE THE HARDING MIDDLE SCHOOL LACKED SUBJECT MATTER JURISDICTION TO SUSPEND DREYFUS. Finding Dreyfus' appeal lacks merit, the judgment of the trial court is affirmed. On June 1, 1995, Dreyfus and three other male students attending Harding Middle School in Lakewood, Ohio, were suspended from school for their involvement in an incident in which a female student was improperly touched on her chest. In particular, the substitute teacher that day reported to the assistant principal, Dr. Lant, that the students had been asked to get in line for lunch, and that Dreyfus and three other boys were reaching for and touching the female student's breast. (Tr. 10). Dr. Lant questioned each student involved in the incident, and subsequently suspended each of the four boys from school for the remainder of June 1, 1995, and all of June 2, 1995. On June 13, 1995, a Suspension Appeal Hearing was held at the request of Dreyfus' mother. At the hearing, Dr. Lant stated that she questioned each child involved in the incident. The girl involved in the incident stated that several boys were reaching for and touching her breast area and she told them to stop. (Tr. 10). The girl, however, in her affidavit stated that Dreyfus did not engage in inappropriate touching of her. (Affidavit, Maranda Elliot, June 13, 1995). Furthermore, the young girl told her mother that two boys were pushing both Dreyfus and another boy into her, and that Dreyfus was trying to stop the two boys from doing that. (Tr. 7). Moreover, the young girl stated that she did not - 4 - understand why Dreyfus got suspended when the two other boys were pushing [him] into her. (Tr. 7). Dreyfus also testified at the hearing. In particular, Dreyfus stated that one of the boys involved grabbed another boy's hand and tried to force it into the girl's chest area. (Tr. 4). Dreyfus stated that he was trying at that time to pull the boy's hand away from the young girl. (Tr. 4). Dreyfus further testified that during their meeting with Dr. Lant two of the other boys and the young girl told the same story, but the boy trying to force the other boy's hand into the girl's chest stated that it was Dreyfus who, in fact, pushed the boy's hand. (Tr. 5). On June 13, 1995, the board rendered its decision, and on June 16, 1995, in a letter to Dreyfus' parents, stated that it had concluded that Dreyfus was directly involved, did engage in the misconduct and that the two-day suspension was appropriate and in accordance with the student code of conduct. (Board Letter, June 16, 1995). The letter further stated that due to the late postmark of the suspension letter to Dreyfus' parents, Dreyfus' two-day suspension and the letter of suspension will be removed from his permanent record. (Board Letter, June 16, 1995). On July 12, 1995, pursuant to R.C. 2506, Dreyfus filed an appeal in the Cuyahoga County Court of Common Pleas requesting the court to reverse the decision rendered by the board on June 13, 1995, upholding the suspension. On that same date, Dreyfus also - 5 - filed a motion to stay. Dreyfus, however, had previously served his two-day suspension. Thus, his motion was denied. On October 13, 1995, the board filed a motion to dismiss on the theory that the cause was moot. Subsequently, on November 24, 1995, the board's motion to dismiss was granted with prejudice by the trial court. I. For purposes of this appeal, Dreyfus' first, second, and fourth assignments of error will be addressed together. In particular, this court will address whether the trial court properly granted the board's motion to dismiss the present cause of action as moot. In this appeal, Dreyfus contends that the action is not moot and therefore the board's motion to dismiss should not have been granted. The general rule in Ohio is that courts exercise jurisdictional restraint in cases that are not actual controversies. Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14. Thus, the duty of the court of appeals is to decide actual controversies between parties "by a judgment that can be carried into effect." Minor v. Witt (1910), 82 Ohio St. 237, 238 (quoting Mills v. Green [1895], 159 U.S. 651, 653). An appellate court is not required to render an advisory opinion on a moot question or abstract proposition or to rule on a question of law that cannot affect matters in issue in a case. Minor, supra at 238; State v. Bistricky (1990), 66 Ohio App.3d 395, 397. Therefore, when, - 6 - without the fault of either party, circumstances preclude an appellate court from granting effectual relief in a case, the "mootness doctrine" mandates that the case be dismissed. Minor, supra at 239; James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791. Although an appellate court must dismiss a cause of action where it is unable to grant effectual relief to the parties, two exceptions to the "mootness doctrine" exist, allowing for a court to hear a cause of action which has otherwise been rendered moot. The Ohio Supreme Court in In re Suspension of Huffer From Circleville High School (1989) 47 Ohio St.3d 12, set forth that where an issue is capable of repetition, yet evading review or involves a matter of public or great general interest, the court is vested with the jurisdiction to hear the appeal, even though the case is moot. Id. at 14, citing Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28, 30. In Huffer, a case distinguishable from the case sub judice, the appellant challenged the authority of the local school board to make certain rules and regulations. The Ohio Supreme Court, in addressing this issue, determined that the authority granted to the local school board "is of 'great general interest'". Huffer, supra at 14. Furthermore, the Court stated that the issue was "capable of repetition," yet it may "evade review", since students who challenge school board rules generally graduate before the case winds its way through the court system. Id. - 7 - In the case sub judice, Dreyfus was suspended from school for one and a half days; and reference to Dreyfus' suspension was placed in his permanent record. Subsequently, Dreyfus served his suspension; and following the suspension appeal hearing, the board removed any reference to the suspension from Dreyfus' permanent record. Dreyfus challenges the trial court's ruling dismissing the cause of action as moot. In doing so, Dreyfus contends that the present case is similar to the case presented in Huffer. However, after a complete review of the record before us, as well as a complete review of Huffer, this court determines that the two cases are not similar. In Huffer, the appellant challenged the authority of the school board to make and enforce school policy, as well as the constitutionality of Policy No. 622. In the present case, however, Dreyfus did not challenge the authority of the board, nor did Dreyfus challenge any school policy applicable to his situation. Rather, Dreyfus, in essence, has asked this court to determine whether his suspension was supported by sufficient evidence. As stated supra, this court cannot entertain questions which have become moot due to the occurrence of some outside event. In the present case, Dreyfus served his suspension and any reference to his suspension has been removed from his permanent record. Furthermore, Dreyfus' cause of action is not one which is capable of repetition, yet evading review, in that Dreyfus is no longer a - 8 - student at Harding Middle School. Nor is Dreyfus' cause of action one that rises to the level of great public concern. Thus, the present action is moot for purposes of review by this court. Accordingly, Dreyfus' first, second, and fourth assignments of error are overruled. II. In his third and fifth assignment of error, Dreyfus contends that he was not awarded a fair suspension hearing. Thus, Dreyfus asserts, his rights to Equal Protection and Due Process under the Fourteenth Amendment of the United States Constitution were violated. R.C. 3313.66 (A)(1) and (2) set forth the following: (A) "* * * the principal of a public school may suspend a pupil from school for not more than ten school days. * * * No pupil shall be suspended unless prior to the suspension such superintendent or principal does both of the following: (1) Gives the pupil written notice of the intention to suspend him and the reasons for the intended suspension * * *. (2) Provides the pupil an opportunity to appear at an informal hearing before the principal, assistant principal * * * and challenge the reason for the intended suspension or otherwise explain his actions." Furthermore, R.C. 3313.66 (E) provides: (E) "A pupil or his parent * * * may appeal his expulsion or suspension by a * * * principal to the board of education * * *." The United States Supreme Court in Goss v. Lopez (1975), 95 S.Ct. 729, addressed the issue of notice and a hearing when a - 9 - student is suspended from school. In particular, the Goss court, in recognizing that public school students have a property right in their eduction, as well as a liberty interest in their reputation, held that "students facing temporary suspension from public school were entitled to protection under the due process clause and that due process required, in connection with suspension of up to ten days, that such a student be given notice of charges and an opportunity to present his version to authorities preferably prior to removal from school." Id. at syllabus. Though the decision in Goss was rendered prior to the current version R.C. 3313.66, the same general rules apply today. The Goss court recognized that only the minimal requirements of the Due Process Clause need be satisfied. Recognizing that a fundamental requisite of due process of law is the opportunity to be heard, the Court stated: "[a]t the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of hearing." Goss, supra at 738. The Clause requires at least the following rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school: (1) the student be given oral or written notice of the charges against him and, (2) if he denies them, an explanation of the evidence the authorities have and, (3) an opportunity to present his side of the story. - 10 - Id. at 740. "There need be no delay between the time "notice" is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with student minutes after it has occurred * * * provided the student be given an opportunity to explain his version of the facts at this discussion." Id. In the case sub judice, almost directly following the incident, Dreyfus was called to the assistant principal's office. At that point, Dreyfus was asked by Dr. Lant what had occurred. Dr. Lant subsequently questioned the girl and the other boys involved in the incident. Dr. Lant then required the attendance of each individual involved to restate, in front of each other, what had transpired. Directly following the hearing, Dr. Lant informed Dreyfus that he would be suspended for the remainder of the day, as well as the entire following day. Dr. Lant subsequently telephoned Dreyfus' mother, informed her of the incident which had occurred, and told her to come get Dreyfus from school. The hearing held by Dr. Lant following the incident, complies with the informal hearing and notice requirement set forth in Goss. Furthermore, the hearing provided by Dr. Lant shortly after the incident occurred complied with the mandates set forth in R.C. 3313.66 (A) (1) and (2). Furthermore, the suspension appeal hearing held on June 12, 1995, complied with the dictates of R.C. 3313.66 (E). Therefore, Dreyfus' due process right to a fair hearing was not violated. - 11 - Accordingly, Dreyfus' third and fifth assignments of error are overruled. III. In his sixth assignment of error, Dreyfus contends that his cause of action is not moot, in that the board lacked subject matter jurisdiction to suspend him. Dreyfus' contends that the board's failure to provide him with written notice prior to suspending him violated the requirements of R.C. 3313.66 (A)(1). R.C. 3313.66 (A)(1) requires that prior to suspending a student, written notice of the intention to suspend him must be given and the reasons for the intended suspension. In the present case, neither the board, nor the assistant principal provided Dreyfus with written notice of his suspension prior to suspending him. Furthermore, in violation of R.C. 3313.66(D), Dreyfus' parents were not notified in writing of the suspension within one day after Dreyfus' suspension. R.C. 3313.66 (G) sets forth the following: (G) "The failure of the superintendent or the board of education to provide the information regarding the possibility of permanent exclusion in the notice required by divisions (A), (B), and (D) of this section is not jurisdictional, and the failure shall not affect the validity of any suspension * * *." R.C. 3313.66 (G) clearly states that failure to provide notice is not jurisdictional and does not affect the validity of the suspension. Even though the board failed to provide notice to Dreyfus' parents, the board, in order to remedy its error, deleted - 12 - from Dreyfus' permanent record any reference to his suspension. Therefore, no actual controversy exists, nor is there any means of relief which this court can grant. Thus, Dreyfus' cause of action is moot. Accordingly, Dreyfus' sixth assignment of error is moot. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J. and JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .