C.B. Ex Rel. Breeding v. Driscoll , 82 F.3d 383 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-8494.
C.B., a minor, By and Through his father and next of friend,
William J. BREEDING, Jr.; T.P., a minor, by and through her mother
and next of friend, Shirley Paschall, Plaintiffs-Appellants,
v.
Sandra DRISCOLL, Principal, individually and in her official
capacity; Edward E. Corry, Superintendent, individually and in his
official capacity; Greene County Board of Education, Defendants-
Appellees.
April 18, 1996.
Appeal from the United States District Court for the Middle
District of Georgia. (No. 3:91-00136-CA-ATH(DF), Duross
Fitzpatrick, Chief Judge.
Before EDMONDSON and BIRCH, Circuit Judges, and HENDERSON, Senior
Circuit Judge.
EDMONDSON, Circuit Judge:
Plaintiffs in this action, minors TP and CB, sued their former
high school principal, Dr. Driscoll, and superintendent, Mr. Corry,
in Defendants' individual and official capacities under 42 U.S.C.
§ 1983. The claims asserted were for constitutional injuries
allegedly suffered when Defendants suspended Plaintiffs from
school. The district court granted summary judgment to Defendants.
And, in the light of the exceedingly limited rights of public
school students facing school discipline, we affirm.
I. Facts
TP was involved in a fight at the Greene-Taliaferro
Comprehensive High School, where she was a student. According to
school administrators, TP refused to calm down when teachers
arrived, attempted again to attack the other student, and screamed
obscenities and threats. A teacher eventually carried her to the
principal's office, where TP continued to shout obscenities and to
disobey the school administrators' instructions to remain seated
and to wait quietly. Dr. Driscoll also says—without
contradiction—that TP injured her as administrators tried to calm
TP in the principal's office. The police were summoned, and TP was
taken to the station. From there, she called her mother, who
retrieved her.
TP and her mother discussed the incident later that same day
with Dr. Driscoll by phone. TP told Dr. Driscoll that the other
student had started the fight. She claims, however, that Driscoll
was uninterested in her story, and TP argues that the decision to
suspend her had already been made. Dr. Driscoll is herself unsure
whether the decision to suspend TP was made before or after the
phone conversation.
School policy authorizes administrators to suspend students up
to nine days following a conference; longer suspensions and
expulsions require that the Board of Education first hold a more
formal hearing. Superintendent Corry explained to TP's mother that
TP was entitled to no formal hearing. TP then enrolled in a
neighboring school district and filed this lawsuit.
About a week after the TP incident, Assistant Principal
Johnson was told by a student that CB was going to make a drug sale
at school later in the day. The informant had been told by another
student that CB had hidden the drugs in CB's coat. In response,
Driscoll and Johnson went to CB's class, asked him to follow them
to the hallway, and informed him that it had been reported that he
was in possession of drugs. They asked CB to empty his pockets,
and CB removed from his coat two plastic packets of what appeared
to be marijuana. CB maintained he knew nothing about the packets.
Dr. Driscoll permitted CB to return to class. At a conference
attended by CB's grandparents, CB was given a chance to explain the
source of the packets. Dr. Driscoll told CB that the police would
test the substance and that she would continue investigating. She
did not suspend him then.
The next week CB's father, stepmother, grandmother and aunt
(who is also CB's attorney before this Court) attended a meeting
with Driscoll and a Georgia Bureau of Investigation agent where CB
was given the opportunity to explain himself again. Dr. Driscoll
decided to suspend CB for nine days for the possession of a
"look-alike" illegal substance. After the suspension, Driscoll
decided that CB would—pending the outcome of the drug testing—be
assigned to the "alternative school" where CB would do work
assigned by the regular teachers, but would not attend regular
classes. CB then withdrew from school and filed this lawsuit.
Later, tests revealed the substance not to be marijuana.
The school handbook permits administrators to search the
person effects of students when administrators reasonably suspect
that the search will reveal evidence of a violation of law or
school rules. Possession of both illegal drugs and substances that
appear to be illegal drugs are prohibited by School Rule 23. CB
admitted in his deposition that he was aware of the rules against
illegal drugs, including the prohibition against "look-alikes."
Everyone concedes the packets looked to contain marijuana.
Review of summary judgment is plenary; and this court will
affirm if, after construing the evidence in the light most
favorable to the non-moving party, it concludes that no genuine
issue exists on a material fact and that the moving party is
entitled to judgment as a matter of law. Delancey v. St. Paul Fire
and Marine Insurance Co., 947 F.2d 1536 (11th Cir.1991).
II. TP's Due Process Claims
A. Procedural Due Process
TP argues that her suspension for fighting, screaming
obscenities, and refusing to cooperate with and assaulting faculty
members was imposed with inadequate process. She says she received
no notice or hearing and alleges the decision to suspend was made
before the phone conference.1
The Supreme Court determined in Goss v. Lopez, 419 U.S. 565,
577, 95 S. Ct. 729, 738, 42 L. Ed. 2d 725 (1975), that the Fourteenth
Amendment is implicated in school suspension decisions when a state
provides an entitlement to a public education. But, the
characterization of what process is due in the academic setting was
strikingly tempered by the Court's recognition that "[j]udicial
interposition in the operation of the public school system ...
raises problems requiring care and restraint." Id. (citations and
internal quotation marks omitted). Therefore, when a student is
suspended for fewer than ten days, the process provided need
1
The district court originally determined that factual
issues required a jury trial on the question of when (and if)
TP's hearing was provided; but on reconsideration, the court
held that TP received a hearing during the phone conversation
between TP and Dr. Driscoll that satisfied due process regardless
of whether or not it preceded the decision to suspend.
consist only of "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." 419 U.S. at 582, 95 S.Ct. at 740.
The dictates of Goss are clear and extremely limited:
Briefly stated, 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. The only other requirement arises
from the Court's admonishment that the hearing come before removal
from school "as a general rule," unless a student's continued
presence is dangerous or disruptive. In these instances, removal
can be immediate. Id.
When TP was removed from school, she posed a danger to persons
or property or both and was disruptive. After fighting with two
girls, she had had to be physically carried to the principal's
office by a teacher; and while the details of what followed are
contested, TP admits she was emotionally distraught and that she
expressed to administrators her intention to "kill that girl" who
had allegedly attacked her. She also admits that she refused to
stay seated in the office and tried to run out of the office. Dr.
Driscoll says (without contradiction) that she was injured in the
attempts to calm TP in Driscoll's office. So, TP was first
properly removed from school under the circumstances even if she
was given no opportunity to explain herself. The important issue
is whether she had the chance to explain her behavior before the
decision setting the duration of the suspension—nine days—became
final.
Appellees assert that TP received her hearing by telephone
later that day, when TP's mother phoned Dr. Driscoll at school. TP
and her mother both took part in that call.2 Dr. Driscoll admits
that she cannot recall whether the initial decision to suspend was
reached before or after that call.
Despite this uncertainty, Appellees are still correct that the
phone call satisfied the requirements of the due process clause.
This court had occasion to consider, shortly after Goss, the issue
of whether a hearing held after a suspension decision has been
announced, but in time to modify or to reverse the decision,
satisfies due process. In Sweet v. Childs, 518 F.2d 320, 321 (5th
Cir.1975), the student plaintiffs were removed from school because
they were causing a disruption. Later that day, an announcement
was made over local radio that they had been suspended. Shortly
thereafter, in a "post-suspension student-parent conference[ ],"
the students were allowed to air their views; and the suspensions
were reversed. Id. Applying Goss, the court found no deprivation
of due process.
Sweet teaches that when students are removed from school for
creating a disturbance, a tentative decision to continue to suspend
the students for some days may be made before a hearing as long as
the disciplinarian goes on to hold a prompt—given the
practicalities—hearing at which the preliminary decision to suspend
can be reversed. Here, TP acknowledged in her deposition that,
2
Appellees do not argue that TP received a sufficient
hearing in the principal's office, and therefore we do not
consider this idea.
within hours of leaving school, she was able to tell her side of
the story to Dr. Driscoll on the phone: "I said [to Dr. Driscoll],
no we were not fighting.... [T]hese girls jumped on me, and her
sister was holding me." TP also told Dr. Driscoll her attacker
jumped on her "for no reason." Dr. Driscoll then declined to alter
the punishment. Under Sweet, that the hearing did not precede the
initial determination of TP's punishment is not dispositive on
whether due process was afforded. Therefore, because TP was
apprised of the charges against her, and Dr. Driscoll soon heard
TP's version of the morning's events, TP—given the
circumstances—received sufficient process under Goss.
B. Substantive Due Process
TP claims that the procedural due process violation discussed
above also constituted a violation of what the Supreme Court has
called substantive due process: she says the nine-day suspension
caused her injury of a "shocking and abusive nature." And, TP
argues her substantive due process rights were violated because
Driscoll, who made the decision to suspend, was biased because TP
injured Driscoll in the struggle in the principal's office
following TP's fight with other students.
These substantive due process claims are without merit.
Pursuant to this court's opinion in McKinney v. Pate, 20 F.3d 1550,
1557 n. 9 (11th Cir.1994) (en banc), the decision to suspend TP for
nine days is an executive decision. As an executive act, the
suspension contravenes substantive due process rights only if, in
the Supreme Court's words, the right affected is "implicit in the
concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319,
325, 58 S. Ct. 149, 152, 82 L. Ed. 288 (1937), overruled on other
grounds by Benton v. Maryland, 395 U.S. 784, 793, 89 S. Ct. 2056,
2062, 23 L. Ed. 2d 707 (1969). See also McKinney, 20 F.3d at 1556
(noting strong presumption against discovering substantive due
process protection for unenumerated rights). The right to attend
a public school is a state-created, rather than a fundamental,
right for the purposes of the substantive due process clause. See
Plyler v. Doe, 457 U.S. 202, 221, 102 S. Ct. 2382, 2396, 72 L. Ed. 2d
786 (1982) (noting that though it is societally important,
"[p]ublic education is not a "right' granted to individuals by the
Constitution") (citations omitted).
Therefore, the "right" to avoid school suspension may be
abridged as long as proper procedural protections are afforded;
and TP's substantive due process challenge must fail. By the way,
TP's quarrel with Driscoll's supposed bias is also properly seen as
an alleged deprivation of procedural, not substantive, due process.
McKinney, 20 F.3d at 1560-61. Thus, TP's effort to invoke
substantive due process fails.3
3
We note that Driscoll's alleged bias amounts to no
deprivation of procedural due process either. In the school
context, it is both impossible and undesirable for administrators
involved in incidents of misbehavior always to be precluded from
acting as decisionmakers. Thus Justice White noted in Goss, 419
U.S. at 584, 95 S.Ct. at 741, that as long as the "informal
give-and-take" occurs, a disciplinarian who has witnessed the
conduct at issue can suspend a student on the spot. And in an
analogous situation, we have written that "in the case of an
employment termination ... due process does not require the state
to provide an impartial decisionmaker at the pre-termination
hearing," McKinney, 20 F.3d at 1562 (citing Parratt v. Taylor,
451 U.S. 527, 543, 101 S. Ct. 1908, 1917, 68 L. Ed. 2d 420 (1981))
(citations and internal quotation marks omitted). The reasoning
is that often the supervisor will participate in events preceding
termination, and thus always requiring an impartial decisionmaker
to be educated on the facts would render the required processes
III. CB's Fourth and Fourteenth Amendment Claims
A. Illegal Search and Seizure
CB argues that Driscoll lacked reasonable grounds to search
him because no administrator observed him with drugs, no
administrator observed him acting strangely, and the informant was
unreliable. Whether the facts construed in favor of CB show that
Driscoll had reasonable grounds to suspect the presence of banned
substances is a question of law and review is de novo. See United
States v. Harris, 928 F.2d 1113 (11th Cir.1991). We hold that the
search of a student in the instant circumstances does not violate
the Fourth Amendment, and therefore we need not consider issues of
qualified immunity and of local government liability.
In New Jersey v. T.L.O., 469 U.S. 325, 342, 105 S. Ct. 733,
743, 83 L. Ed. 2d 720 (1985), the Supreme Court held that school
officials need only "reasonable grounds for suspecting" that a
search will turn up evidence that the student has violated either
the law or school rules. "Sufficient probability, not certainty,
is the touchstone of reasonableness under the Fourth Amendment."
T.L.O., 469 U.S. at 346, 105 S.Ct. at 745 (citations and internal
quotation marks omitted). The tip in this case provided sufficient
probability, viewed against the "reasonable grounds" standard, to
justify the search here.
A fellow student provided the information that CB carried
too complex. See, e.g., Schaper v. City of Huntsville, 813 F.2d
709, 715 n. 7 (5th Cir.1987) (citations omitted). This reasoning
applies with at least equal force in the school suspension
context. Even if Driscoll was not wholly impartial, we conclude
as a matter of law that Driscoll's involvement in the events in
the office did not preclude her from acting as the decisionmaker.
drugs with the intent of selling them. The tip was provided to
administrators directly, rather than anonymously, and was thus more
likely to be reliable because the student informant faced the
possibility of disciplinary repercussions if the information was
misleading. Cf. United States v. Harris, 403 U.S. 573, 583, 91
S. Ct. 2075, 2082, 29 L. Ed. 2d 723 (1971) (plurality opinion)
(stating "common sense" proposition that tip that places informant
at risk of prosecution is entitled to greater credit). Many courts
have approved reliance on tips from fellow students. E.g., S.C. v.
State, 583 So. 2d 188, 192 (Miss.1991) (noting that tips from
students are less suspect than those from society in general). And
while the tip did not include the identity of the student who
observed the contraband firsthand, the Supreme Court has recognized
that information from an anonymous source can help provide the
"reasonable suspicion" necessary for a Terry stop. See Alabama v.
White, 496 U.S. 325, 331, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301
(1990). Administrators also received at least some corroboration
when they noted that CB, who was reported by the informant to have
the drugs in his "big old coat," did in fact have such a coat in
his possession when the search was initiated. See United States v.
Gibson, 64 F.3d 617, 623 (11th Cir.1995) (holding that anonymous
tip can be corroborated by verifying that present circumstances,
rather than future acts, are as reported), petition for cert.
filed, No. 95-8439 (Mar. 26, 1996). In the light of the
circumstances, reasonable grounds to search existed; and CB's
Fourth Amendment rights were not violated.
B. Procedural Due Process
CB also argues that his procedural due process rights were
violated because he was suspended without adequate notice or
hearing. The District Court granted summary judgment on the merits
of this claim. Again, only a "rudimentary" hearing is required for
short-term suspensions. Goss, 419 U.S. at 581, 95 S.Ct. at 740.
Here CB had two opportunities to discuss the issue with
administrators before he was suspended, either one of which more
than satisfied Goss. (CB was in fact represented by counsel at the
second hearing.)4
C. Substantive Due Process
CB claims his substantive due process rights were violated by
the decision to suspend him and then to send him to an "alternative
school." The district court granted summary judgment on the merits
of this claim.
Our holding in McKinney, 20 F.3d at 1560-61, forecloses CB's
substantive due process claim for his suspension and transfer. As
discussed above, McKinney reminded us that executive acts warrant
no substantive due process protection unless the right infringed is
recognized by the Constitution as "fundamental," which is to say
that "our democratic society and its inherent freedoms would be
lost if that right were to be violated." Id. at 1561 (citing
Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198, 99 S. Ct.
4
CB also fails to set out a persuasive procedural due
process claim based on the alleged vagueness of Rule 23
(possession of look-alike substances). See, e.g., Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675, 686, 106 S. Ct. 3159, 3166,
92 L. Ed. 2d 549 (1986) (stating that "school disciplinary rules
need not be as detailed as a criminal code which imposes criminal
sanctions"). Rule 23 was sufficiently clear as not to deny CB
the process he was due.
1062, 1064, 59 L. Ed. 2d 248 (1979)). CB's suspension and transfer
were both executive acts, see McKinney, 20 F.3d at 1557 n. 9, and
neither abridged a fundamental right. Plyler, supra. Because the
right to an education is state-created, that right can be
restricted as long as adequate procedures are followed. McKinney,
20 F.3d at 1561.5 Thus, what the Supreme Court has identified as
substantive due process was not offended by the suspension and
transfer.
IV. Plaintiffs' Other Motions Below
The district court dismissed Plaintiffs' other pending motions
as moot because he ruled on the summary judgment motion first. In
the light of our holdings expressed above, we decline to review the
merits of these motions.
The judgment of the district court is AFFIRMED.
5
And, although we need not address the issue (because CB has
not alleged a violation of procedural due process based on the
transfer), we doubt CB has a property interest under Georgia law
in attending Greene-Taliaferro instead of the alternative school
to which he was assigned. See generally Doe v. Bagan, 41 F.3d
571, 576 (10th Cir.1994). In Bagan, the court stated,
It is obvious, however, that Doe was not denied his
right to public education. He was only denied his
request to attend the public school of his choice.
Plaintiffs cite no Colorado authority, and we have
found none, indicating that the right to a public
education encompasses a right to choose one's
particular school.
Id. Cf. Zamora v. Pomeroy, 639 F.2d 662, 670 (10th
Cir.1981) (holding that, at least absent showing that
alternative school was "so inferior [to previous school as]
to amount to an expulsion from the educational system," the
plaintiffs "lack the requisite standing to attack the
appellees' actions"). In any event, CB clearly received all
the process that was due.