Opinion
Case No. 01-4019-RDR
October 16, 2002
MEMORANDUM AND ORDER
This is an action brought by the plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff contends that her constitutional due process rights were violated when she was suspended from school prior to her graduation. She further asserts two state law claims. The defendants are the Board of Education of Unified School District No. 256 and Donald Johnson, the principal of Marmaton Valley High School. This matter is presently before the court upon cross-motions for summary judgment.
SUMMARY JUDGMENT STANDARDS
In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the opposing party. Barber v. General Electric Co., 648 F.2d 1272, 1276 n. 1 (10th Cir. 1981). Summary judgment is proper only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this rule, the initial burden is on the moving party to show the court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party's burden may be met when that party identifies those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met these requirements, the burden shifts to the party resisting the motion. The non-moving party must "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The party resisting the motion "may not rest upon the mere allegations or denials of his pleadings . . ." to avoid summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The mere existence of a scintilla of evidence will not avoid summary judgment; there must be sufficient evidence on which a jury could reasonably find for the nonmoving party. Id. at 251 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)).
FACTS
Many of the relevant facts in this case are not disputed. In May 2000, plaintiff was a senior attending Marmaton Valley High School of Unified School District No. 256. Defendant Johnson was the principal of Marmaton Valley High School during the 1999-2000 school year. Plaintiff attended her school's senior trip to Osage Beach, Missouri in May 2000. During the trip, on May 5th she defecated into an empty can of Pringles potato chips. She sat the can on a table in a room where several of the students on the trip were located. She intended to give the can to a specific student because "he'd been a turd throughout the day." That student discovered the can and deposited the contents into the shoe of a female student. Plaintiff and another student made some effort to clean up the shoe, but a stain remained. The shoe was discovered by the mother of the female student upon her return home.
On May 9, 2000 plaintiff attended classes at the high school. During that day an investigation of the incident on the senior trip was undertaken by Principal Johnson and David Taylor, a teacher at the high school. Plaintiff was interviewed by Johnson and Taylor. She admitted that she had defecated into the Pringles can. She further admitted that she had intended to give the can to another student, but that she had not intended for the contents to wind up in the female student's shoe.
On May 10, 2000 plaintiff again met with Johnson and Taylor. She again admitted what she had done during the senior trip. After interviewing all students allegedly involved in the senior trip incident, Johnson and Taylor met with the discipline committee and informed the committee of the events on the senior trip. Seven students, including plaintiff, were either directly involved or present in the room when the senior trip incident took place. The disciplinary committee decided that three students who were not directly involved in the incident, but were in the room where it occurred, would be punished by in-school suspension on May 15, 16 and 17, 2000. The disciplinary committee further decided that the other four students, including the plaintiff, who were directly involved in the incident, would be punished by out-of-school suspension for the remainder of the year and excluded from extracurricular activities for the remainder of the year, including participation in commencement ceremonies.
On May 11, 2000 plaintiff attended her college classes that she was taking at Allen County Community College in the morning. In the afternoon she did not attend classes at the high school, but chose to take a "college day to get things to look at" by driving to Coffeyville Community College.
During the afternoon of May 11, 2000, Johnson delivered a written notice of discipline to Kelli Barnett, plaintiff's mother, at plaintiff's home. In the heading of the notice, the incident is characterized as "Mischief, Threats/Harmful." The disposition is identified as "Expulsion." The body of the notice states as follows:
On the Sr. trip an incident happened that involved your daughter and another student's property. Your daughter defecated in a Pringles can which it was used by another student to be placed in a shoe. It has been decided by the discipline committee that the students involved in these acts against another student be suspended for the remainder of the year and not be allowed to participate in the graduation ceremony. You must also pay your share for the replacement of the shoes, which is $30 each. You may appeal to the discipline committee Fri. at 8:30 am. or visit with me when you would be able to.
As plaintiff was returning from Coffeyville, she talked with her mother by cell phone and was advised of the discipline. Plaintiff reviewed the written notice either that evening or the next morning. Plaintiff understood the notice related to her action of defecating into a Pringles can on the senior trip.
Plaintiff and her parents appealed to the disciplinary committee on May 12, 2000. They indicated to the disciplinary committee that they were appealing the "harshness of the punishment." They agreed that plaintiff deserved to be punished.
On May 15, 2000 the disciplinary committee recommended that the four students involved in the senior trip incident be punished by five days out-of-school suspension followed by a conference with Johnson, and then be allowed to participate in the graduation ceremonies. Plaintiff was allowed to appeal her suspension to the school board and provided with notice of that opportunity.
A meeting of the school board was held on May 15, 2000. Plaintiff was represented by counsel before the school board. Plaintiff's counsel and her parents were given a full opportunity to present their position before the school board. Plaintiff did not personally attend the school board meeting on advice of counsel.
The school board voted to suspend plaintiff for the remainder of the school year and not permit her to participate in the graduation ceremonies. Plaintiff was suspended from school beginning May 11, 2000 through the end of the school year. As a result, plaintiff's suspension was five days.
On May 18, 2000 the Iola Register reported that four students at Marmaton Valley High School, including the plaintiff, had been prohibited from participating in graduation ceremonies by the school board for Unified School District No. 256. The newspaper noted that the announcement had occurred at a special meeting of the school board, and that the discipline had been imposed because "of actions that occurred on a recent class trip."
Thereafter, plaintiff filed an action in state court seeking injunctive relief. She sought a temporary restraining order preventing the school district from enforcing its ban on plaintiff participating in the graduation ceremonies. The state court granted plaintiff's request and allowed her to participate in the graduation ceremonies. Following the entry of the temporary restraining order, plaintiff dismissed the action without prejudice. Plaintiff did subsequently participate in the graduation ceremonies, and she did receive her diploma.
PROCEDURAL DUE PROCESS
The Fourteenth Amendment specifies that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1. Absent a denial of life, liberty or property, under the Constitution the government need not provide any process to the adversely affected individual. Board of Regents v. Roth, 408 U.S. 564, 578 (1972).
A student's entitlement to a secondary public education is a property interest which is constitutionally protected by the Due Process Clause of the Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565, 574 (1975). Moreover, suspensions from school may infringe a student's liberty interest by damaging his or her reputation and are thus protected by the Due Process Clause. Id. at 575. There is no dispute here that plaintiff had a property interest in her education and a liberty interest in her reputation.
The nature of the due process that must be afforded a student depends upon the type of punishment imposed by the school. In Goss, the Supreme Court held that, with any suspension of up to ten days, all the Due Process Clause requires is for the student to "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." 419 U.S. at 581; accord Watson v. Beckel, 242 F.3d 1237, 1240 (10th Cir. 2001). The Supreme Court said that "[i]n the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred," and "[w]e hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is." 419 U.S. at 582. The Court has since explained that all Goss requires before a suspension is an "informal give and take" in order to provide the student "the opportunity to characterize his conduct and put it in what he deems the proper context." Board of Curators v. Horowitz, 435 U.S. 78, 86 (1978) (quoting Goss, 419 U.S. at 584).
Plaintiff has suggested that she did not incur a short-term school suspension. Rather, she contends she was expelled. In support of this contention, she points out that the notice received by her mother was entitled "Expulsion." She offers nothing else except that she was precluded from attending the remainder of the school year.
There is no dispute about the heading of the notice provided by Principal Johnson to plaintiff's mother. The notice did identify the discipline as "Expulsion." However, the body of the notice clearly explained that plaintiff was suspended, not expelled. She missed five school days. She, however, missed no classes as a result of the suspension. As a senior, she had concluded her course work at the high school and was only scheduled for finals. Her grades made her exempt from final examinations irrespective of the suspension.
Plaintiff's suspension is not transferred into an expulsion because it occurs at the end of the school year. Lamb v. Panhandle Community Unit School Dist. No. 2, 826 F.2d 526, 529 (7th Cir. 1987) (student disciplined for drinking whiskey on senior trip was suspended, not expelled, even though suspension occurred at end of year and precluded student from taking final exams and graduating, where student would have been able to graduate if grades had been high enough); Mifflin County School Dist. v. Stewart, 503 A.2d 1012, 1014 (Pa. 1986) (high school student's suspension through the time of graduation ceremonies was not equivalent to an expulsion, although there was no return to school, where student was in fact graduated). The uncontroverted facts here clearly show that plaintiff was disciplined with suspension for five days and prevented from participation in graduation ceremonies. She did, however, graduate and receive a diploma. The actions here must be characterized as a suspension rather than an expulsion. Accordingly, we find that the due process requirements for short-term suspensions must be applied.
For short-term suspensions, the Supreme Court in Goss stated that the student must be afforded at least a rudimentary hearing. 419 U.S. at 419. The Court clearly indicated that it did not want to unduly burden public education by imposing elaborate detailed due process elements in each situation. Id. at 580. In fact, the Court indicated that the hearing need only be "an informal give-and-take discussion between the student and disciplinarian." Id. at 584. The rudimentary hearing is intended to provide the school official with an opportunity to inform the student of the alleged misconduct and to give the student an opportunity to explain his or her version of the situation. Id. at 582. Additional procedural safeguards beyond notice and a rudimentary hearing were not required, although the Court noted that school officials had discretion to afford additional procedures if the situation warranted. Id. at 583-84.
The court finds that the undisputed evidence here demonstrates that the plaintiff was afforded due process. Plaintiff was given notice of her misconduct. She was also given an opportunity to respond. The actions of the school district satisfied the constitutional requirements set forth in Goss. Plaintiff has pointed to a variety of alleged deficiencies in the handling of her suspension, most involving alleged lack of compliance with Kansas state law on suspensions, K.S.A. 72-8902. The court finds no merit to any of the suggestions noted by plaintiff. There is little question that plaintiff was afforded ample due process.
In addition, even if the court accepted that the plaintiff's allegations that the state law on school suspension was not followed, we would not find a violation of plaintiff's constitutional due process rights. The failure to conform to the procedural requirements guaranteed by state law does not by itself constitute a violation of federal due process. Martin v. Shawano-Gresham School Dist., 295 F.3d 701, 706-07 (7th Cir. 2002); Brody v. City of Mason, 250 F.3d 432, 437 (6th Cir. 2001). As noted previously, the uncontroverted facts indicate that plaintiff received the necessary due process provided by the Fourteenth Amendment.
Finally, even if the court found that due process was lacking, we would find no merit to plaintiff's claim because she has failed to show substantial prejudice. In order to establish a denial of due process, a student must show substantial prejudice from the allegedly inadequate procedure. Watson, 242 F.3d at 1242. Plaintiff admitted the conduct that was the subject of the suspension. As a result, plaintiff was not prejudiced even if due process was somehow lacking. Additional due process would not have allowed plaintiff to better defend the allegations. Therefore, she has failed to establish a procedural due process violation.
SUBSTANTIVE DUE PROCESS
Plaintiff has also argued that her rights to substantive due process were violated by the defendants. She contends that the discipline imposed was arbitrary and capricious. Plaintiff has offered an extended discussion that she did nothing wrong here. It can be summarized in the following statements taken from her motion for summary judgment: "Plaintiff putting excrement in a can in the privacy of her bathroom obviously is not misconduct. Placing the can on a table is not prohibited conduct."
The defendants have countered with two arguments. First, they contend that the court should not even consider this claim because it has not been preserved in the pretrial order. Second, they assert that, if the claim is considered, it should be rejected as completely lacking any merit.
The pretrial order "measures the dimensions of the lawsuit, both in the trial court and on appeal." Hullman v. Board of Trustees of Pratt Community College, 950 F.2d 665, 668 (10th Cir. 1991). Issues not preserved in the pretrial order are eliminated from the action. Id.
The court has carefully reviewed the pretrial order and we find no mention of a federal substantive due process claim. Accordingly, we find that this claim has been eliminated by the plaintiff and we need not consider it.
Even if we were to consider it, we would find that it lacks merit. In school discipline cases, the substantive due process inquiry is whether the actions of the school administrators are shocking to the conscience. Harris v. Robinson, 273 F.3d 927, 930 (10th Cir. 2001). In order to satisfy this standard, "a plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." Id. (quoting Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995)).
A school district and its administrators have vast powers in determining what constitutes appropriate conduct. Courts do not have the time or the ability to second guess every disciplinary decision made by a school administrator. See Wood v. Strickland, 420 U.S. 308, 326 (1975) ("It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion."); Haverkamp v. Unified School Dist. No. 380, 689 F. Supp. 1055, 1058 (D.Kan. 1986) ("Federal courts should not ordinarily intervene in the resolution of conflicts which arise in the daily operation of school systems. Local school boards have a legitimate and substantial community interest in promoting respect for authority and traditional values."). Despite plaintiff's apparently heartfelt arguments to the contrary, there is little question that the conduct of plaintiff here was inappropriate. In her deposition, plaintiff had no trouble acknowledging the impropriety of her actions:
Q: You knew that it was inappropriate to defecate in a Pringles can, didn't you?
A: Yes, I did.
. . . . .
Q: Did you need a written rule to tell you that you shouldn't do that while on the senior trip?
A: I didn't need a written rule, no.
The discipline imposed here falls far short of meeting the "shock the conscience" standard. Accordingly, even if we were to consider this claim, we would find that the defendants are clearly entitled to summary judgment on it.
STATE LAW VIOLATIONS
Plaintiff has asserted a state law claim based upon a theory that she was deprived of her education without compliance with the procedures set forth in K.S.A. 72-8902. Thus, plaintiff contends that she is entitled to recover damages based upon the failure of the defendants to comply with K.S.A. 72-8902. She also alleges that her right to substantive due process under state law has been violated.
The determination of whether a violation of K.S.A. 72-8902 creates the basis for private claim is a matter of intention of the legislature. Greenlee v. Board of Clay Co. Commissioners, 241 Kan. 802, 740 P.2d 606, 609 (1987). "In the absence of express provisions, the legislative intent to grant or withhold such a right is determined primarily from the language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration." Kansas State Bank v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587, 603 (1991).
The statute at issue, K.S.A. 72-8902, provides for specific procedures to be followed before certain penalties can be levied against a student in Kansas. The court finds no support either in the language of the statute or in its legislative history for the contention that the Kansas legislature intended to create a private right of action to any student aggrieved by a violation of K.S.A. 72-8902. We note that Kansas law allows a student to appeal to state district court if a violation of the statute occurs. See K.S.A. 60-2101(d); Smith v. Miller, 213 Kan. 1, 514 P.2d 377 (1973). This right to appeal suggests it would be inappropriate to confer a private right of action based upon the statute when the statutory scheme provides its own remedy by way of appeal. Accordingly, the court does not find that plaintiff can assert a claim pursuant K.S.A. 72-8902. This claim must be dismissed for failure to state a claim upon which relief can be granted.
The court notes that plaintiff has offered no support for her claim that Kansas law allows a substantive due process claim under these circumstances. She has not cited any precedent in support of that contention. The court is not persuaded that such a claim can be asserted, but even if it can, we do not find that plaintiff has demonstrated that she is entitled to any relief. As previously noted, the court does not find that the decisions of the defendants were arbitrary or capricious or that they were shocking to the conscience.
CONCLUSION
In sum, the court finds that the defendants are entitled to summary judgment on all plaintiff's constitutional due process claims. The court also finds that plaintiff's state law claims must be dismissed for failure to state claims upon which relief can be granted.
IT IS THEREFORE ORDERED that plaintiff's motion for summary judgment (Doc. #25) is hereby denied.
IT IS FURTHER ORDERED that defendants' motion for summary judgment (Doc. #26) is hereby granted. Judgment shall be entered for the defendants and against the plaintiff.
IT IS SO ORDERED.