REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50420
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DAN NEVARES, Individually and as
next friend for Timothy Nevares,
a minor,
Plaintiff-Appellee,
versus
SAN MARCOS CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT,
Defendant-Appellant,
TEXAS EDUCATION AGENCY,
Intervenor-Appellant.
_______________________________________________________
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
2
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
1
117 S.Ct. 1055, 1067 (1997)(quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) and Whitmore v. Arkansas, 495
U.S. 149, 155 (1990)).
2
Goss v. Lopez, 419 U.S. 565 (1975).
3
conduct fall short of triggering suspension or expulsion, but who
for reasons of safety and order must be removed from the regular
classroom.3
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
3
Tex. Educ. Code §§ 37.001 - 37.011.
4
Anne Proffitt Dupre, Should Students Have Constitutional
Rights? Keeping Order in Public Schools, 65 Geo. Wash. L. Rev.
49 (1996).
5
115 S.Ct. 2386, 2392 (1995)(quoting Bethel Sch. Dist. No.
403 v. Fraser, 478 U.S. 675, 681 (1986)).
6
Arundar v. DeKalb Cty. School Dist., 620 F.2d 493 (5th
Cir. 1980).
4
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.
JUDGMENT REVERSED. CASE DISMISSED.
7
Walsh v. Louisiana High Sch. Athletic Ass’n, 616 F.2d 152
(5th Cir. 1980).
8
Seamons v. Snow, 84 F.3d 1226, 1234-1235 (10th Cir.
1996).
9
Zamora v. Pomeroy, 639 F.2d 662, 669-670 (10th Cir.
1981).
5