Education Law Publications

DUFF, WHITE & TURNER, L.L.C.
Attorneys And Counselors At Law

SCHOOL LAW
"ISSUE OF THE MONTH"
August 2007

Interpretation of the S.C. Freedom of Information Act

On July 16, 2007, the S.C. Supreme Court issued a decision in a case involving a dispute between The Spartanburg Herald-Journal newspaper (Herald) and Spartanburg County School District Seven (District) concerning the District's interpretation of the S.C. Freedom of Information Act (FOIA), S.C. Code Ann. § 30-4-10 et seq. At issue in the case of Spartanburg Herald-Journal v. Spartanburg County School District No. 7 was the provision of FOIA that requires public entities to disclose, upon request, materials related to "not fewer than the final three applicants" being considered for an employment position.

In 2003, the District Board of Trustees conducted a search for a new superintendent. The Herald made a written request to the District under FOIA seeking materials pertaining to "not fewer than the final three applicants" being considered for the superintendent position. The District provided materials relating only to the two individuals the Board considered to be the "finalists." Subsequently, the Herald filed suit, seeking a declaratory judgment that the District had violated FOIA by not disclosing information on at least three applicants. Following a non-jury trial, the lower court ruled that the District had violated FOIA and that it must pay the Herald's attorney's fees and costs. The District appealed, and the S.C. Supreme Court now has upheld the lower court ruling.

Section 30-4-40(a) of FOIA states that "A public body may but is not required to exempt from disclosure the following information...[a]ll materials, regardless of form gathered by a public body during a search to fill an employment position, except that materials relating to not fewer than the final three applicants under consideration for a position must be made available for public inspection and copying." The District argued that this language means only materials related to true "finalists" must be disclosed. During the superintendent search in question, a pool of 30 applicants was first narrowed to five "semi-finalists;" two of those five were then determined to be "finalists." Rejecting the District's arguments, the Court concluded that the statutory language does not mean that materials relating only to "finalists" must be disclosed, but rather that information must be disclosed pertaining to the final "pool" of applicants, consisting of at least three persons. The Court reasoned that interpreting the statute in any other manner would allow public employers to avoid disclosure by naming fewer than three "finalists."

The Court's decision clarifies that upon request, public employers must release information about at least three applicants, no matter how many applicants are considered to be "finalists." This ruling makes it difficult to determine what course of action a district should take in cases where a pool of applicants is narrowed to a number larger than three, perhaps for interview purposes, and then is narrowed to only two individuals who are actually considered for the position. Districts will have to determine whether to release information on all of the applicants who were interviewed, even if that number is greater than three, or whether in all cases to select at least three individuals for the final "pool."

Interpretation of the S.C. Student Discipline Code

The S.C. Supreme Court also recently considered the appeal rights of students transferred to an alternative program in lieu of expulsion. On June 25, 2007, the Court issued an opinion in Davis v. School District of Greenville County concluding that the Student Discipline Code, S.C. Code Ann. § 59-63-210 et seq., does not provide a right to appeal student transfers into court, as is the case with student expulsions.

Davis was a high school student in the Greenville County School District (District) during the 2004-05 school year, when he was accused of smoking marijuana at school. The school principal recommended expulsion pursuant to the District's discipline policy, and Davis was given an expulsion hearing before the District Hearing Officer. At the conclusion of the hearing, the Hearing Officer ruled that the evidence supported the misconduct charge; in lieu of expulsion, however, the Hearing Officer assigned Davis to an alternative program. Davis appealed the transfer ruling to the District Board of Trustees, which affirmed the Hearing Officer's decision. Subsequently, Davis appealed the transfer to the circuit court, which overturned the transfer decision. The District appealed the ruling to the S.C. Supreme Court on the ground that state law does not give courts the authority to hear an appeal of a student transfer. The Supreme Court agreed and reversed the lower court.

At issue in Davis is the language of the expulsion statute, § 59-63-240, which provides that a school board's decision to expel a student may be appealed to the "proper court." A separate transfer statute, § 59-63-250, addresses the appeal rights of students who have been transferred to an alternative program, in lieu of suspension or expulsion. The transfer statute states that a transfer made by an administrator may be appealed "to the board." It does not specify any further appeal beyond the board, as is the case in the expulsion statute. Davis argued that because his case was initiated as an expulsion proceeding, he should have the appeal rights specified in the expulsion statute. The Supreme Court disagreed andruled that the lower court lacked jurisdiction to review the Board's decision to transfer Davis to the alternative program.

In the 1996 case of Byrd v. Irmo High School , the S.C. Supreme Court reviewed the Student Discipline Code's suspension statute, § 59-63-230, which states that a suspension decision may be appealed to "the board of trustees or its authorized agent." The Court concluded that where a statute does not specify any further appeal rights beyond the school board, the courts lack jurisdiction to hear an appeal. In 2002, however, the S.C. Supreme Court noted in the case of Floyd v. Horry County School District that a court would have the authority to review a student suspension, and thus presumably a transfer, only if it was alleged that required procedures had not been followed. Absent such procedural allegations, Byrd and Davis clarify the rule that transfers and suspensions, unlike expulsions, may not be appealed into the court system to challenge the disciplinary action itself.