Matthew T. Hinterlong v. Arlington Independent School District ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-050-CV
MATTHEW T. HINTERLONG APPELLANT
V.
ARLINGTON INDEPENDENT APPELLEE
SCHOOL DISTRICT
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION AND F ACTUAL B ACKGROUND
Appellant Matthew T. Hinterlong appeals the trial court’s judgment that
he take nothing from Appellee Arlington Independent School District (AISD) on
his due process claim asserted pursuant to 42 U.S.C. § 1983 (2003).
Hinterlong’s due process claim arose out of an incident involving AISD’s zero
1
… See Tex. R. App. P. 47.4.
tolerance policy as set forth in AISD’s Code of Student Conduct Revised
Version For 1999–2000.2 Following an anonymous tip, school officials found
a thimble-full of a substance that smelled like alcohol in an Ozarka water bottle
in Hinterlong’s vehicle while it was parked on school property. Based on this
finding, AISD’s zero tolerance policy required Hinterlong’s removal from
Arlington Martin High School and placement in Turning Point High School, an
alternative school. After hearings before the vice principal, the principal, an
administrative appeal panel, and the superintendent, the decision to place
Hinterlong at the alternative school was upheld.
Ultimately, Hinterlong sued AISD and others 3 as a result of AISD’s
application of its zero policy to him. Following a bench trial, the trial court
signed a take-nothing judgment in favor of AISD and against Hinterlong.
Hinterlong requested findings of fact and conclusions of law. See Tex. R. Civ.
P. 296. He did not, however, timely file a notice of past due findings of fact
and conclusions of law, and none were made. See Tex. R. Civ. P. 297.
2
… AISD’s Code of Student Conduct’s zero tolerance policy has since
been amended to require consideration of the student’s intent.
3
… The other parties involved in the case were granted summary
judgment before trial.
2
II. S TANDARD OF R EVIEW
In a trial to the court where no findings of fact or conclusions of law are
filed, the trial court’s judgment implies all findings of fact necessary to support
it. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996); In re Estate
of Rhea, 257 S.W.3d 787, 790 (Tex. App.—Fort Worth 2008, no pet.). Where
a reporter’s record is filed, however, these implied findings are not conclusive,
and an appellant may challenge them by raising both legal and factual
sufficiency of the evidence issues. BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 795 (Tex. 2002); Estate of Rhea, 257 S.W .3d at 790. Where
such issues are raised, the applicable standard of review is the same as that to
be applied in the review of jury findings or a trial court’s findings of fact.
Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). The judgment must
be affirmed if it can be upheld on any legal theory that finds support in the
evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re
Guardianship of Boatsman, 266 S.W.3d 80, 85 (Tex. App.—Fort Worth 2008,
no pet.).
III. AISD P ROVIDED H INTERLONG W ITH A W AY TO E SCAPE Z ERO T OLERANCE P OLICY
On appeal, Hinterlong raises one issue, arguing that “[t]he evidence was
factually and legally insufficient to support the District Court’s implied finding
that the school district’s ‘zero tolerance’ policy is rationally related to a
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legitimate state interest.” Specifically, Hinterlong argues that he was entitled
to school disciplinary procedures that comported with due process requirements
and that AISD’s zero tolerance policy did not meet those minimum requirements
because it subjects to punishment students who do not knowingly or
consciously possess alcohol.
A constitutional challenge, like the one Hinterlong raises, can be either a
facial challenge or an as applied challenge. In a facial challenge, the challenging
party contends that the statute, by its terms, always operates
unconstitutionally. See Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d
504, 518 (Tex. 1995) (citing New York State Club Ass’n v. New York City,
487 U.S. 1, 11, 108 S. Ct. 2225, 2233 (1988); United States v. Salerno, 481
U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987)). An as applied challenge,
however, requires the challenger to demonstrate only that the statute operates
unconstitutionally when applied to the challenger’s particular circumstances.
Garcia, 893 S.W.2d at 518 n.16.
Although Hinterlong appears to raise both facial and as applied
challenges, to have standing to raise a facial challenge, he must first
demonstrate that the zero tolerance policy as applied to him operated
unconstitutionally. See generally Barshop v.Medina County Underground Water
Conservation Dist., 925 S.W.2d 618, 626 (Tex. 1996) (explaining that in
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facial constitutional challenge to statute, plaintiff must have suffered some
actual or threatened injury under the statute and must contend that the statute
unconstitutionally restricts the plaintiff’s own rights); accord Stewart v. State,
39 S.W.3d 230, 233 (Tex. App.—Tyler 1999, pet. denied) (stating that when
challenging the facial validity of a statute, generally appellant must not only
establish that statute is impermissibly vague as applied to him but must also
successfully demonstrate that statute is unconstitutionally vague in all of its
applications), cert. denied, 531 U.S. 857 (2000). Based on the record before
us, as explained in more detail below, Hinterlong has not demonstrated that
AISD’s zero tolerance policy operated unconstitutionally as applied to him.
School districts’ zero tolerance policies, as a whole, have promoted
consistency over rationality. See generally Christopher D. Pelliccioni, Note, Is
Intent Required? Zero Tolerance, Scienter, and the Substantive Due Process
Rights of Students, 53 Case W. Res. L. Rev. 977, 990–91 (2003). Arguments
can be made that appeals, processes, and procedures provided to a student
after application of a zero tolerance policy are worthless because each appeal,
process, or procedure simply affirms zero tolerance; that is, such procedural due
process is meaningless because no one within the process can circumvent the
policy. Moreover, strict adherence to zero tolerance policies without
consideration of the student’s mens rea would appear to run afoul of
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substantive due process notions. See Seal v. Morgan, 229 F.3d 567, 578 (6th
Cir. 2000) (stating that “the Board’s Zero Tolerance Policy would surely be
irrational if it subjects to punishment students who did not knowingly or
consciously possess a weapon”).
But here, the facts before the trial court demonstrated that Hinterlong
suffered no deprivation of procedural due process or substantive due process
because there was a way for Hinterlong to obtain consideration of his mens rea,
to present evidence that he lacked knowledge of the Ozarka water bottle and
its contents, and to thereby circumvent continued application of the zero
tolerance policy. As noted above, Hinterlong received hearings before the vice
principal, the principal, the administrative appeal panel, and the superintendent.
The superintendent, Dr. Mac Bernd, testified that he informed Hinterlong that
he would overturn the decision of the administrative appeal panel, thereby
returning Hinterlong to Arlington Martin High School, if Hinterlong would
provide one or more pieces of specified evidence, including an analysis of the
substance in question showing that it was not alcohol, polygraph results from
Hinterlong showing that he did not have prior knowledge of the bottle or of its
contents, or testimony from an independent witness substantiating the
allegation that the bottle was “planted” in Hinterlong’s vehicle. Hinterlong, his
mother, and Dr. Bernd all testified that Hinterlong did not supply any of the
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specified items of evidence that would have allowed Dr. Bernd to overturn the
decision of the administrative appeal panel. The record thus demonstrates that
no evidence was presented by Hinterlong to escape application of the zero
tolerance policy.4 But see Christopher D. Pelliccioni, Note, Is Intent Required?
Zero Tolerance, Scienter, and the Substantive Due Process Rights of Students,
53 Case W. Res. L. Rev. at 992 (stating that when superintendent has power
to modify length of expulsion or to uphold principal’s recommendation for
expulsion for calendar year [as opposed to reversing the expulsion decision], the
possible reduction in punishment really only softens the blow of zero tolerance
policies that are unfairly applied in many circumstances). Because AISD
provided an escape mechanism in lieu of strict application of the zero tolerance
policy—that is, Dr. Bernd testified that, if provided with any of the requested
evidence, he would have reversed the expulsion decision—Hinterlong’s as
applied due process challenge must fail. Cf. Village of Hoffman Estates, 455
U.S. at 499–500, 102 S. Ct. at 1194 (holding that appellee’s facial challenge
failed because ordinance contained a scienter requirement); Garner v. Bd. of
4
… The escape mechanism provided by the superintendent makes this
case distinguishable from cases in which strict application of the zero tolerance
policy is imposed despite the offender’s lack of knowledge of the contraband.
Thus, the issue of whether a zero tolerance policy that provides no escape
mechanism would violate due process is not before us.
7
Pub. Works of City of Los Angeles, 341 U.S. 716, 723–24, 71 S. Ct. 909, 914
(1951) (holding that oath did not deny due process after assuming that scienter
was implicit in each clause of oath).
Having reviewed the record and applied the appropriate standard of
review set forth above, we hold that the trial court did not err by granting
judgment for AISD and against Hinterlong on his due process claim. We
overrule Hinterlong’s sole issue.5
IV. C ONCLUSION
Having overruled Hinterlong’s sole issue, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: February 11, 2010
5
… Based on our disposition of Hinterlong’s sole issue, we need not
address AISD’s argument that the trial court’s judgment could be upheld based
on the unchallenged implied finding that Hinterlong suffered no damages. See
Tex. R. App. P. 47.1; see also Williams v. Kaufman County, 352 F.3d 994,
1001 (5th Cir. 2003) (stating well-established law that plaintiffs may recover
nominal damages when their constitutional rights have been violated but they
are unable to prove actual injury).
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