C. B. 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,
      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-
                                   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
    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
          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
          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,
          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
    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
    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
          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
    (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
    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.
    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.
    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.
    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
                       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.
          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.

Document Info

DocketNumber: 94-8494

Citation Numbers: 82 F.3d 383

Filed Date: 4/18/1996

Precedential Status: Precedential

Modified Date: 7/10/2017

Authorities (18)

Palko v. Connecticut , 302 U.S. 319 ( 1937 )

Benton v. Maryland , 395 U.S. 784 ( 1969 )

United States v. Harris , 403 U.S. 573 ( 1971 )

Goss v. Lopez , 419 U.S. 565 ( 1975 )

Harrah Independent School Dist. v. Martin , 440 U.S. 194 ( 1979 )

Parratt v. Taylor , 451 U.S. 527 ( 1981 )

Plyler v. Doe , 457 U.S. 202 ( 1982 )

New Jersey v. TLO , 469 U.S. 325 ( 1985 )

Bethel School Dist. No. 403 v. Fraser , 478 U.S. 675 ( 1986 )

Alabama v. White , 496 U.S. 325 ( 1990 )

Rudolph Sweet, Eddie Rhyne v. Robert E. Childs, Etc., Etc. , 518 F.2d 320 ( 1975 )

grace-zamora-as-parent-and-natural-guardian-on-behalf-of-vidal-shawn , 639 F.2d 662 ( 1981 )

Dale Schaper v. City of Huntsville, Gene Pipes and Hank ... , 813 F.2d 709 ( 1987 )

United States v. Reginald Bernard Harris, A/K/A "Reggie" , 928 F.2d 1113 ( 1991 )

Ben and Audrey Delancy, as Co-Administrators and on Behalf ... , 947 F.2d 1536 ( 1991 )

john-doe-a-minor-and-as-next-best-friend-and-guardian-ruth-rios-ruth , 41 F.3d 571 ( 1994 )

United States v. Oliver L. Gibson , 64 F.3d 617 ( 1995 )

SC v. State , 583 So. 2d 188 ( 1991 )

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