Wednesday, September 23, 2009

A football case, from a few years back

Here's part of an old brief, apropos of the high school football season:

Plaintiff was in a fight on school property at the High School, where he is a student and was a member of the football team. The altercation occurred on the football practice field following football practice. Plaintiff has acknowledged that school rules prohibit such fighting. He admits his role in the fight. He does not dispute the essential details of fight that were represented by other witnesses.

Plaintiff told his side of the story to the High School principal. The principal dealt lightly in deciding that the appropriate discipline was only one day’s suspension for both students. Plaintiff appealed to the Disciplinary Committee and then to the School Board. Plaintiff presented his side of the story with the aid of counsel to the School Board. Both the Disciplinary Committee and the School Board upheld the punishment decided by the principal. After the School Board’s decision, Plaintiff sued in the Circuit Court, claiming that the one-day suspension would violate his rights under the U.S. Constitution. He obtained an ex parte temporary injunction. The defendants removed the case. (Pursuant to 28 U.S.C. § 1450, the injunction remains in effect, subject to further order of this Court.) The defendants now seek summary judgment and dissolution of the injunction.


In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court decided what procedural protections are due under the United States Constitution in cases of student suspensions for 10 days or less. “[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him, and if he denies them, an explanation of the evidence the authorities have, and an opportunity to present his side of the story.” Id. at 581. The Virginia Supreme Court applies the same standard. See Wood v. Henry County Public Schools, 255 Va. 85, 92, 495 S.E.2d 255, 259 (1998).

On the undisputed facts of this case, Plaintiff received all the process he was due under the Constitution, and more. The offense with which he was charged was clearly defined. Although Plaintiff disputes who was to blame for the fight and whether his actions were justified, he has never denied his involvement. Plaintiff had not one but three opportunities hear the charge against him and state his response, and he was represented by counsel at both the second and third stages.

The procedural due process contemplated by Goss is limited and informal, and “due process principles have never assured a successful defense.” Bystrom v. Fridley High School 686 F. Supp. 1387, 1394 (D. Minn. 1987). The Court in Goss refused to require “that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.” 419 U.S. at 583. Compare Bethel School District v. Fraser, 478 U.S. 675, 686 (1986) (“Two days’ suspension from school does not rise to the level of a penal sanction calling for the fully panoply of procedural due process protection applicable to a criminal prosecution.”). In essence, the student is guaranteed only the chance to alert the disciplinarian “to the existence of disputes about facts and arguments about cause and effect.” Goss, 419 U.S. at 583-84. “[T]he student will at least have the opportunity to characterize his conduct and put it in what he deems the proper context.” Id. at 584. As the Eleventh Circuit concluded, “once school administrators tell a student what they heard or saw, ask why they heard or saw it, and allow a brief response, a student has received all the process that the Fourteenth Amendment demands." C.B. v. Driscoll, 82 F.3d 383, 386 (11th Cir. 1996).

The Goss standard continues to be applied to similar cases in Virginia and throughout the country. See Martin v. Shawano-Gresham School Dist., 295 F.3d 701, 705-06 (7th Cir. 2002) (affirming summary judgment); Ratner v. Loudon County Public Schools, 16 Fed. Appx. 140, 2001 WL 855606 (4th Cir.) (unpublished) (affirming dismissal for failure to state a claim, citing Goss); West v. Derby Unified School Dist. No. 260, 206 F.3d 1358, 1364 (10th Cir. 2000) (affirming summary judgment on due process claim); Smith on Behalf of Smith v. Severn, 129 F.3d 419, 428 (7th Cir. 1997) (affirming summary judgment); Brian A. ex rel. Arthur A. v. Stroudsburg Area School Dist., 141 F. Supp.2d 502, 508 (M.D. Pa. 2001) (granting summary judgment); Long v. Board of Educ. of Jefferson County, Ky., 121 F. Supp.2d 621, 628 (W.D. Ky. 2000) (granting summary judgment); Smith ex rel. Lanham v. Greene County School Dist., 100 F. Supp.2d 1354, 1367 (M.D. Ga. 2000) (granting summary judgment); Carlino v. Gloucester City High School, 57 F. Supp.2d 1, 28 (D.N.J. 1999) (granting summary judgment on due process issue); Achman v. Chisago Lakes Independent School Dist. No. 2144, 45 F. Supp.2d 664, 671 (D. Minn. 1999) (granting summary judgment); Broussard by Lord v. School Bd. of City of Norfolk, 801 F. Supp. 1526, 1532 (E.D. Va. 1992) (granting judgment as a matter of law); Granowitz v. Redlands Unified School Dist., 105 Cal. App.4th 349, 354, 129 Cal. Rptr.2d 410, 414 (2003); Floyd v. Horry County School Dist., 351 S.C. 233, 236-37, 569 S.E.2d 343, 345 (2002); Atcitty v. Board of Educ. of San Juan County School Dist., 967 P.2d 1261, 1263 (Utah App. 1998) (“Goss remains the guiding decision in public school suspension cases of ten days or less.”); M.M. v. Chesapeake City Schools, 52 Va. Cir. 356, 2000 WL 33261105, *2 (Va. Cir. Ct. 2000).

Plaintiff cannot conjure up a procedural due process claim based on some real or imagined violation of the letter of the School Board’s written policies or the student code of conduct. “[T]he failure to conform with the procedural requirements guaranteed by state law does not by itself constitute a violation of federal due process.” Martin, 295 F.3d at 706. Even if plaintiffs can show that school policies were not followed to the letter, his constitutional claim must be measured not by the code book, but by the law of due process. “Alleged violations of due process in the deprivation of a protectable interest are to be measured against a federal standard of what process is due and that standard is not defined by state- created procedures, even when those state-created procedures exceed the amount of process otherwise guaranteed by the Constitution.” Riccio v. County of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990); compare Gray v. Laws, 51 F.3d 426, 438 (4th Cir. 1995) (“The Constitution’s due process requirements are defined by the Constitution and do not vary from state to state on the happenstance of a particular state’s procedural rules.”).

Finally, the bill of complaint suggests that the School District had no authority to discipline Plaintiff because of when, where, and how the fight occurred. This argument sounds more like a substantive due process claim. Some courts view a school suspension as an “executive decision” that does not implicate rights of substantive due process if “proper procedural protections are afforded,” since public education is not a fundamental right. See C.B. v. Driscoll, 82 F.3d at 387. Others courts have concluded that school disciplinary decisions do not violate substantive due process so long as they are rationally related to the school’s legitimate interests, or do not “shock the conscience.” See Smith ex rel. Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d 168, 173 (2d Cir. 2002) (teacher slapping student for no reason does not violation substantive due process, which protects “only against egregious conduct which goes beyond merely ‘offend[ing] some fastidious squeamishness or private sentimentalism’ and can fairly be viewed as so ‘brutal’ and ‘offensive to human dignity’ as to shock the conscience.”); Harris v. Robinson, 273 F.3d 927, 930 (10th Cir. 2001) (“shock the conscience” test applies to measure substantive due process in school discipline cases); Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000) (“In the context of school discipline, a substantive due process claim will succeed only in the ‘rare case’ when there is ‘no rational relationship between the punishment and the offense.’”) (quoting Brewer by Dreyfus v. Austin Independent School Dist., 779 F.2d 260, 264 (5th Cir. 1985)); Dunn v. Fairfield Community High School Dist. No. 225, 158 F.3d 962, 966 (7th Cir. 1998) (no substantive due process violation where the plaintiffs “freely conceded that they had violated a school rule, that the rule was designed to preserve discipline in the classroom and to punish student insubordination, and that these were legitimate interests on the part of the school district.”). In this case, there is no constitutional basis for the claim that the school’s disciplinary authority does not extend to these after-school events which occurred on school property, related to a school activity, and involved one student injuring another.

By law, the School Board has control over school property, without limitation as to the time of day. See Va. Code §§ 22.1-79, 22.1-125; compare New Jersey v. T.L.O., 469 U.S. 325, 339 (1985) (recognizing the “substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds”); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“School officials have the authority to control students and school personnel on school property”). The School Board has an obligation to provide a safe environment for its students. See, e.g., Va. Code § 22.1-279.6 (school boards will have “policies on alcohol and drugs, vandalism, trespassing, threats, search and seizure, disciplining of students with disabilities, intentional injury of others”) (emphasis added); 8 VAC 20-131-260 (requiring schools to have procedures “for responding to violent, disruptive or illegal activities by students on school property or during a school sponsored activity” as part of their program for student safety); compare Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S. Ct. 2559, 2565 (2002) (“the school has the obligation to protect pupils from mistreatment by other children”) (citation omitted). The School Board’s enforcement of its policy against fighting in this case “furthers the district’s legitimate interest in maintaining a safe environment and is rationally related to that interest.” Peterson v. Independent School Dist. No. 811, 999 F. Supp. 665, 673 (D. Minn. 1998). Compare Escatel ex rel. Escatel v. Atherton, 2001 WL 755280, *7 (N.D. Ill. 2001) (“Given that there is no fundamental right to an education, the defendants’ policy permitting expulsion must be sustained if it is rationally related to a legitimate state interest”); Craig v. Selma City School Bd., 801 F. Supp. 585, 595 (S.D. Ala. 1992) (upholding suspensions and expulsions of students who fought after a football game on school proper, noting that “[t]he purposes of the defendants in seeking to enforce school regulations and to protect other students as well as school property from violence are certainly legitimate”).

The District Court granted summary judgment in the case.