Opinion
No. 79310
Decided May 22, 1961.
Schools — Pregnant students — Regulation by board of education — Withdrawal from school attendance required immediately upon knowledge — Section 3321.04, Revised Code — Exception from compulsory attendance — "Bodily condition" — Mandamus to permit attendance not justified, when.
1. The compulsory attendance statute, Section 3321.04, Revised Code, does not prohibit a regulation of a local school board of education barring attendance of pregnant students, since the statute permits the board to excuse a student from attendance when not permitted by a bodily condition.
2. A regulation of a local school board of education requiring a pregnant student to withdraw from school attendance immediately upon knowledge of her pregnancy is not an abuse of discretion.
3. A student who withdraws from school attendance in compliance with a regulation of the board of education regarding pregnancy, makes no objection for three months thereafter, has co-operation from teachers permitting satisfactory completion of all her courses while absent, and who may return for her last year of high school is not entitled to a writ of mandamus to require her to be permitted to resume school attendance prior to the termination of her pregnancy.
Mr. H. O. Finkelman, for plaintiff.
Mr. Robert L. Marrs, for defendants.
This is an action in mandamus wherein the relator seeks a writ against the respondents commanding them to reinstate and permit the relator to attend daily classes at the Trenton High School, Trenton Local School District, Butler County.
Prior to February 18, 1961, relator was duly enrolled and in daily attendance at the Trenton High School, Trenton, Ohio, as a member of the junior class. She was not permitted to attend classes thereafter by reason of the fact that she was pregnant. Relator is sixteen years of age and her husband, who is also a member of the Junior Class of Trenton High School, is of the same age.
On February 16, 1961, the Trenton Board of Education adopted the following regulation respecting policy:
Section 8:20 — Pregnant Students.
"Pregnant students are to withdraw from school attendance immediately upon knowledge of pregnancy. School officials may demand a doctor's examination in cases of question."
The foregoing regulation adopted by the Trenton Board of Education, hereafter referred to as the board, is urged as the basis for prohibiting plaintiff from attending her classes. The plaintiff attacks both the power of the board to adopt such regulation and the reasonableness thereof.
We are thus presented with the determination of these issues.
Unquestionably a local board of education has the power to adopt rules and regulations for the government of the schools under its jurisdiction.
Section 3313.47, Revised Code, provides:
"Each city, exempted village, or local board of education shall have the management and control of all of the public schools of whatever name or character in its respective district. * * *"
Section 3313.20, Revised Code, provides, among other things, as follows:
"The board of education shall make such rules and regulations as are necessary for its government and the government of its employees and the pupils of the schools. * * *."
There is ample authority to the effect that in the exercise of the foregoing statutory powers, boards of education have been granted a wide area of discretion with which the courts will not interfere in the absence of a showing of an abuse of discretion.
We then must address ourselves to the question of whether plaintiff here has shown that the adoption of the regulation here in question, requiring a pregnant student to withdraw from school attendance, constitutes an abuse of discretion on the part of the board which discretion is vested by law in such board.
It is, of course, axiomatic that courts will, in a proper case, require the respondent to exercise such discretion but are not empowered to control the same.
Chapter 3321, Revised Code, deals with school attendance and therein are set forth the statutory provisions which elearly make school attendance on the part of children between the ages of six and eighteen compulsory. The law further requires every parent, guardian or other person having charge of any child to send such child to school and makes it a criminal offense for such parents to fail to do so.
Certain conditions are provided by law under which a child may be excused from attendance at school by a local board of education. In connection with our inquiry here, it is of interest to note that one of such conditions which is found in Section 3321.04 (the compulsory attendance section) is as follows:
(1) "That his bodily or mental condition does not permit his attendance at school during such period."
These statutes clearly reveal a mandate by the General Assembly that every child in this state receive an education in a public school or its equivalent.
In the case of State v. Gans, 168 Ohio St. 174, 5 O. O. 2d 472, 151 N.E.2d 709, 68 A. L. R. 2d 736, the court upheld a conviction of parents for acts tending to cause the delinquency of their minor child in that said parents had consented to their child, age 11, becoming married in West Virginia. The court therein stated that marital duties on the part of a child are not among the reasons set out in the statute which would constitute an excuse from attending school.
It is apperent that the Supreme Court was of the opinion that marriage would not constitute a valid reason for failing to attend school in compliance with the compulsory attendance laws.
It seems clear to us that the public policy of the state of Ohio which, of course, requires every child to receive a basic education, may not be frustrated or thwarted by a board of education adopting a rule that marriage in and of itself, will cause the child to be prohibited from attending school. Here, however, the board, by regulation specifically permits school attendance by married students.
Recently (April 27, 1961) the Attorney General of Ohio in opinion No. 2147 rendered to the Prosecuting Attorney of Morrow County stated that the board of education may not adopt a regulation prohibiting attendance at school of all students under the age of eighteen who become married or, when married, become pregnant. It was his opinion that such regulation would be contrary to the public policy of this state as expressed in the compulsory education laws, Section 3321.01 et seq., Revised Code, which require a basic education for all children.
There is an almost complete dearth of authorities in this state dealing with the question with which we are here confronted. Our own Court of Appeals recently held (no written opinion), that a regulation of a board of education denying married students admission to the public schools was not within the power of a board of education to adopt and issued a writ of mandamus directed to the board requiring the married child's admission to school. However, in the case before our Court of Appeals the student was not pregnant and the court was not dealing with a board of education's regulation respecting students who become pregnant. Here, relator was pregnant at the time of her marriage and by reason of her husband being under eighteen years of age the consent of the Juvenile Judge to such marriage had to be first obtained.
It is quite evident that the board's primary purpose in adopting this regulation was to safeguard and protect the pregnant student whose physical well-being might be endangered as she went about, was subject to, and engaged in, the day to day school work and activities.
The evidence here shows that the relator's further school attendance was denied in the interest of her physical well-being and not as a punitive measure. Furthermore, is it unreasonable for a board, having in mind that it serves the entire student body, to consider the effect upon the other students the continued presence in the classroom of a pregnant fellow student might have? May it not calculate that such presence might adversely affect the morale of the student body, cause disruption to the orderly operation of the school's daily activities and to some extent, interfere with the discipline and government of the students?
We think the board may make such evaluations and having come to a conclusion in respect thereto and incorporated the same in the adoption of a policy and regulation, a court cannot and should not label it as constituting an abuse of discretion.
The Legislature has seen fit to provide, as it has, in Section 3321.04, Revised Code, that a child's bodily condition may provide an excuse from attendance at school. May not, therefore, a board of education adopt a resolution as here which has as its purpose to safeguard and protect the pregnant student's physical condition and well-being? In doing so, would it not merely be implementing the legislative policy exemplified by such statutory provision?
It is, therefore, our view that the board did not abuse the discretion vested in it by law in adopting the complained of regulation, but rather said board properly and wisely exercised such discretion.
The Attorney General of Ohio, in the opinion hereinbefore referred to and upon which relator relies to a great extent, asserted that a board could not adopt a rule which would automatically prohibit the attendance of married students who become pregnant. However, he further said:
"I do not deny the probability, however, that at some stage of the pregnancy different factors may be involved. The typical rough-and-tumble characteristic of children in high school might present a danger which a pregnant spouse or a board of education might wish to avoid. Thus, regulation at such stage of pregnancy where the bodily condition of the child is an important element would appear to be permissible, provided, of course, it is confined to protecting the child at an advanced stage of pregnancy and not as an unwarranted and abusive punishment."
Of course, the Attorney General concludes that a board may not adopt a rule which would automatically prohibit the attendance of married students who become pregnant; but he recognizes the board's right to adopt a rule which would prohibit a student in an advanced stage of pregnancy from attending regular school classes, thus considerably diluting the opinion so rendered. He thereby apparently concedes that the validity of the regulation depends upon the time of its enforcement.
It is apparent that the disagreement as to the opinion of the Attorney General and the board is found in the fact that the Attorney General believes that the pregnant student's withdrawal from school ought not to occur until some time in the later stages of pregnancy. While here the board believes that it might be advisable that such withdrawal take place upon the discovery of pregnancy. In our opinion, to require a board of education to adopt the view as expressed by the Attorney General rather than permit it to make its own determination based upon the experience of those skilled in the administration of school affairs, would constitute the court controlling the board's discretion. This, the law does not permit.
Even if we were to concede, as of course we do not, that this regulation automatically calls for the pregnant student's immediate withdrawal from school and is self-executing and therefore, beyond the board's power to adopt, still relator is not now entitled to a writ of mandamus. This, for the reason that the board would, at this stage of relator's pregnancy and in the interest of her safety, be acting in the exercise of a sound discretion, in refusing to allow her to return to the classroom.
It is clear here and we so find that the board in the adoption of the regulation here in question was not motivated by a desire to punish relator. The evidence shows that ever since her leaving school, her teachers have fully co-operated in providing her with the daily assignments of the work being done by her classmates. Her instructors made corrections and suggestions respecting her work, gave her the same examinations taken by the other students, graded the same, and issued report cards to her. The effectiveness of such help rendered plaintiff is illustrated by the fact that she has continued to maintain the high scholastic average which she held when in regular school attendance. Fortunately, this plaintiff is not only interested and conscientious, but an excellent student. The evidence shows that her absence from school since February 17, 1961, will not prevent her from receiving full credits in the subjects she is carrying.
We could well deny the relief prayed for by relator on the ground that the question here presented is practically moot. The evidence shows that relator will receive full credits in all her subjects for this year in spite of her being away from daily classroom sessions.
The evidence further shows that relator's child, in all probability, will have been delivered by the time the fall, 1961 school session commences, or shortly thereafter. She will then be permitted, under the regulations — which permit a married student to remain in school — to attend her daily classroom work and graduate from high school. No prejudice has resulted to relator as a result of her withdrawal from school when she did. She voluntarily complied with the regulation requiring her withdrawal and took no legal action attacking such withdrawal until almost three months following her withdrawal from classes.
It is well settled that the right to the relief sought by a relator in mandamus must be clear and that the burden of establishing such clear right is on the relator. It is likewise well settled that the relator must show such right to the relief sought as a condition precedent to obtaining it. If there is a substantial doubt as to the relator's right, the writ must and will be refused (35 Ohio Jurisprudence 2d 254 and 255, Section 13).
It is our opinion that no abuse of discretion has been shown by the board in the adoption of the regulation here in issue. Said regulation, particularly as it affects the relator herein, is neither unreasonable, arbitrary, nor contrary to law and the board did not abuse its discretion in applying said regulation to relator herein when it did.
The discretion of a board of education cannot be controlled, destroyed or limited by a writ of mandamus, and a court will not, by mandamus, substitute its discretion for that of said board in the proper exercise of its authority.
The writ herein prayed for will be denied.
Writ denied.