Denial of Credit for Absenteeism

• Most school districts maintain school attendance policies which may include loss of class credit for excessive absenteeism.
• In State ex rel. Yarber v. McHenry, 915 S.W.2d 325 (Mo. 1995), the Missouri Supreme Court defined the level of due process required for denial of course credit.

Facts 

Clint Yarber was a student at Mountain Grove High School in Wright County, when he violated the school's attendance policy.  The school district denied Yarber a semester of high school credit hours because of excessive absences. Mountain Grove School District notified Yarber that he had lost the credit for the semester because of the attendance policy violation.  Yarber appealed to the school board, which heard his objection but did not convene a formal hearing.  The school board denied the appeal.   

Yarber filed a three-count petition in the Cole County Circuit Court questioning whether his case was considered contested. (I -seeks judicial review Mo. Rev. Stat. § 536.150 (1986), governing review of noncontested cases: II - Mo Rev. Stat. § 536.100-140 (1986), governing review of contested cases; III - claim for damages and injunctive relief pursuant to 42 U.S.C. §§ 1983 and 1988).  Yarber alleged that venue was proper in Cole County under Mo Rev. Stat. § 536.110.3 (1986) for a contested case.  The school district filed a motion to transfer the case to Wright County on the ground that the case was not a contested case.  Judge McHenry sustained the motion to transfer, later he stayed the transfer to allow Yarber to seek a writ of prohibition. 

Decision

At issue was whether a hearing relating to excessive absences and violating the school district's attendance policy should be considered a contested case, and if the school's attendance policy was academic or disciplinary in nature.  The court determined that the attendance policy established by the school district was disciplinary in nature.  The court referred to Mo. Rev. Stat. § 536.010(2), (1986), which defines a contested case as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after a hearing.”  Local school boards qualify as agencies under this definition because they are created by Missouri statutes from which determine their rulemaking and adjudicatory authority.

Since the student, school district or the court did not find a statute, rule, or ordinance granting the student a hearing, the only possible way the student will have a hearing is through due process.  In order to be entitled to a hearing under due process, the plaintiff must have either a life, liberty, or property interest protected by the Constitution, Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 82, 98, S.Ct. 948, 951, 55 L.Ed.2d 124 (1978).  Yarber contended that he has a protected property interest in his high school education.  In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the United States Supreme Court determined that a state-created property interest arose out of Ohio statutes that provided for free public education and compulsory attendance.  Missouri has two statutes, Mo. Rev. Stat. §§ 160.051 and 167.031, (1986), that establish a property interest in education.  Any governmental taking of a property right implicates the right to procedural due process and thus requires notice and an opportunity to be heard, Weber v. Fireman’s Retirement System, 872 S.W.2d 477, 479 (Mo. 1994).  The court held that procedural due process requires a hearing with more formal and extensive procedures than that provided in Goss.  This, in turn, triggers the contested case provisions of Missouri Administrative Procedure Act.

The Court determined that the school district's attendance policy is disciplinary in nature and does not relate to academic performance.

Note:  Since Yarber, the Missouri General Assembly amended Mo. Rev. Stat. § 167.161, so that public school boards no longer have to conduct contested case hearings when reviewing student disciplinary actions.  In the case of formal hearings brought before the board, schools must now provide due process that is "appropriate."