Attorney General's Opinion 1974-75 #343


June 30, 1975

Member, House of Delegates

74-75 343

This is in response to your recent inquiry whether a school board may hold an executive or closed meeting to consider an appeal of the suspension of a student from public school.

There is no Virginia statute which speaks directly to the question of a student's right either to a public hearing or a closed hearing. Sections 22-230.1 and 22-230.2 of the Code of Virginia (1950), as amended, require only that appeal of an expulsion be allowed to the full school board and that appeal of a suspension be allowed to the full board or a committee thereof. The Virginia Freedom of Information Act provides that individual scholastic records shall be exempt from the requirement of public disclosure. See §2.1-342(b)(3). Section 2.1-344, however, which enumerates situations in which closed meetings may be held, makes no specific reference to the permissibility of holding closed meetings for student disciplinary hearings.

Section 2.1-344(a)(3) of the Act reads, in pertinent part, as follows: "(a) Executive or closed meetings may be held only for the following purposes:

* * * "(3) The protection of the privacy of individuals in personal matters not related to public business."

It is my opinion that the testimony presented at a student disciplinary hearing, and the subsequent deliberations thereon by the board, are properly within the purview of §2.1-344(a)(3) so that such a hearing may be held in closed session. Student disciplinary matters have long been recognized to be of a confidential nature frequently involving personal testimony which, in the interest of the individuals involved, should not be treated as subject to public disclosure. This view is consistent with the statutory provision that a student's scholastic records are exempt from public access.

Student disciplinary appeals are of a personal nature, not affecting a public interest, and are not deemed to be "public business" as that term is used in §2.1-344(a)(3). The term "public business" may refer to a business enterprise affected with the public interest, but broadly defined is used generally to refer to affairs related to the public interest. "Public business" is not defined as broadly as all business transacted by a public officer in his capacity as an official. Kantack v. Kruer, 158 N.W.2d 842, 847, 280 Minn. 232 (1968)(sheriff's sale not public business). It means that the public must have an interest, as opposed to the individual. Ibid. An accepted definition is:

"As contradistinguished from a private business, a public purpose or public business has for its objective the promotion of the general welfare of all the inhabitants within a given political division. . . ." Green v. Frazier, 176 N.W. 11, 17 (N.D. 1920); Kantack v. Kruer, supra at 847. Public interest means more than mere public curiosity. To be a matter involving public interest, something must be involved in which the public, the community at large, has an interest or a right which may be affected. State v. North Dakota Hospital Services Assistant, 106 N.W.2d 545, 547 (N.D 1960). See also 35 Words and Phrases 299 (1963).

Although the testimony and deliberations relating to a student's suspension may be heard in closed session, the requirements of §2.1-344(b) and (c) must be met with regard to the manner of going into executive session and voting in open session on the action to be taken.