Nevares v. San Marcos Cons Ind ( 1997 )

  •                                REVISED
                          FOR THE FIFTH CIRCUIT
                               No. 96-50420
         DAN NEVARES, Individually and as
         next friend for Timothy Nevares,
         a minor,
             Appeal from the United States District Court for
                       the Western District of Texas
                              April 11, 1997
    Before REAVLEY, KING and BARKSDALE, Circuit Judges.
    REAVLEY, Circuit Judge:
         The district court has declared a Texas statute
    unconstitutional because it does not expressly mandate that the
    school afford a proper hearing for a student charged with off-
    campus conduct punishable as a felony prior to transferring the
    student to an alternative education program.   The student was not
    transferred to the alternative program, because his father sought
    immediate judicial intervention.       We find no constitutional
    deprivation actual or threatened, and dismiss the case for lack
    of standing.
         High school student Timothy Nevares sued the San Marcos
    Independent School District challenging his transfer to the
    Rebound alternative education program and the constitutionality
    of Texas Educ. Code §37.006(a).    The district court held that the
    threatened removal from regular classes and assignment to the
    Rebound program was a form of punishment that impacted the
    student’s protected property and liberty interests.       We disagree.
         Timothy Nevares, a 15 year old tenth grade student, was
    detained for aggravated assault on January 23, 1996 by the San
    Marcos police.   He reportedly threw stones at a car and injured
    one of the passengers.   On February 12, 1996, the school received
    the police report of Nevares’ detention and the assistant
    principal took Nevares from class to question him.       Nevares
    refused to make any statement at this meeting other than to tell
    the school authorities to contact his father and lawyer, saying
    they were getting the matter dismissed.
         Thereafter, Nevares’ father called the school principal,
    admitted that the act in question had occurred but maintained
    that his son’s behavior had been in self-defense, and requested a
    meeting to discuss the situation before the school took any
    action.   The principal explained that according to school
    regulations, once there was reason to believe an aggravated
    assault had been committed, Timothy would be reassigned to the
    alternative education program.    When the principal confirmed with
    the juvenile authorities that the aggravated assault charge on
    Nevares was still pending, he decided to transfer Timothy to the
    Rebound program.   Nevares promptly sued.
         At the threshold we must decide whether any constitutional
    injury is presented and whether Nevares has standing to sue for a
    declaratory judgment on the unconstitutionality of the statute or
    for a permanent injunction against the school district.     Federal
    courts have no jurisdiction under Article III § 2 of the
    Constitution unless a case or controversy is presented by a party
    with standing to litigate, and this requires a showing of “an
    invasion of a legally protected interest” that is “concrete and
    particularized” and “actual or imminent.”      Arizonans for Official
    English v. Arizona.1
         The Supreme Court has held that the suspension from school
    without some kind of notice and hearing may violate property and
    liberty interests.2    The state statute to which the Court pointed
    in Goss gave students the entitlement to a public education.
    Timothy Nevares is not being denied access to public education,
    not even temporarily.    He was only to be transferred from one
    school program to another program with stricter discipline.     This
    alternative program is maintained by Texas schools for those
    students whose violations of the law or the school’s code of
    117 S. Ct. 1055
    , 1067 (1997)(quoting Lujan v. Defenders of
    504 U.S. 555
    , 560 (1992) and Whitmore v. Arkansas, 
    495 U.S. 149
    , 155 (1990)).
             Goss v. Lopez, 
    419 U.S. 565
    conduct fall short of triggering suspension or expulsion, but who
    for reasons of safety and order must be removed from the regular
         Today it is generally recognized that students are being
    deprived of their education by lack of discipline in the
    schools.4   Not only does disorder interfere with learning school
    studies, it also defeats the charge to “inculcate the habits and
    manners of civility.”     Veronia School District 479 v. Acton.5
         We have previously held that no protected property interest
    is implicated in a school’s denial to offer a student a
    particular curriculum.6    In Arundar, a high school student had
    claimed that her property right to education was implicated when
    she was denied enrollment in certain courses of study.      We
    affirmed the district court’s dismissal of the case and held that
    although state law could create a protected interest in a
    particular kind of education, for example by mandating special
    education for exceptional children, absent such a basis in state
    law, there was no cause of action.     This court has also rejected
    arguments that there is any protected interest in the separate
    components of the educational process, such as participation in
             Tex. Educ. Code §§ 37.001 - 37.011.
            Anne Proffitt Dupre, Should Students Have Constitutional
    Rights? Keeping Order in Public Schools, 65 Geo. Wash. L. Rev.
    49 (1996).
    115 S. Ct. 2386
    , 2392 (1995)(quoting Bethel Sch. Dist. No.
    403 v. Fraser, 
    478 U.S. 675
    , 681 (1986)).
            Arundar v. DeKalb Cty. School Dist., 
    620 F.2d 493
    Cir. 1980).
    interscholastic athletics.7   The Tenth Circuit has held that a
    student does not have a constitutional right to particular
    incidents of education such as sports or advanced placement
    classes or attending a particular school.8   A transfer to a
    different school for disciplinary reasons has also been held not
    to support the court’s jurisdiction on constitutional grounds.9
         We recognize the importance of trust and confidence between
    students and school administrators.   For that reason the student
    and parents must be treated fairly and given the opportunity to
    explain why anticipated assignments may not be warranted.      But
    that is for Texas and the local schools to do.   We would not aid
    matters by relegating the dispute to federal litigation.    And
    because the United States Constitution has not been offended in
    the present dispute, we retire from it.
            Walsh v. Louisiana High Sch. Athletic Ass’n, 
    616 F.2d 152
    (5th Cir. 1980).
             Seamons v. Snow, 
    84 F.3d 1226
    , 1234-1235 (10th Cir.
             Zamora v. Pomeroy, 
    639 F.2d 662
    , 669-670 (10th Cir.