Meyer v. Austin Ind School

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-50561

TED MEYER, Individually and as Next Friend for Carolyn Preciado, A
Minor; ROSEMARY MEYER, Individually and as Next Friend for Carolyn
Preciado, A Minor; HAROLD ROBBINS, Individually and as Next Friend
for Linda Rosales, now known as Linda Quiroz, A Minor; LINDA
ROBBINS, Individually and as Next Friend for Linda Rosales, now
known as Linda Quiroz, A Minor; PEDRO R AGUIRRE, Individually and
as Next Friend for Angelica Aguirre, A Minor; SYLVIA MARTINEZ,
Individually and as Next Friend for Aglae Martinez, A Minor; JESSE
MARTINEZ, Individually and as Next Friend for Aglae Martinez, A
Minor; HERMINIA LARIOS, Parent of Sarah Ramirez; SARAH RAMIREZ
Plaintiffs-Appellees,

AUSTIN INDEPENDENT SCHOOL DISTRICT; KENT EWING, Principal, Bowie
High School
Defendants-Appellants

Appeal from the United States District Court
for the Western District of Texas

November 16, 1998

Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Students in a Travis County, Texas, high school alleged that

school administrators illegally denied them procedural due process

by suspending them for gang-related activity. The magistrate judge

presiding by consent refused to grant summary judgment for the

school principal on the basis of qualified immunity. Given our

limited jurisdiction on this interlocutory appeal, we affirm.

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 Five minor students and their parents as next friends sued the

Austin Independent School District, its board of trustees and

school board, superintendent James H. Fox, Bowie High School, and

Bowie principal and vice-principal Kent Ewing and Jorge Rodriguez.

The complaint was filed in Texas state court and removed by the

defendants. After threatening expulsion, the school had suspended

the plaintiffs for three days each on the ground that their shirts,

which were “maroonish or reddish” and allegedly contained gang

insignia, indicated that they were engaging in gang-related

activities. The students complained that they had not received

procedural due process when they were suspended from school without

a hearing, and also made complaints based on the First Amendment,

substantive due process, and the Equal Protection Clause.

Defendants filed a motion to dismiss, based in part on the

immunity doctrine of Monell v. Department of Soc. Servs., 436 U.S.

658, 690-91 (1978). The parties consented to proceed before a

magistrate judge, and the case was reassigned to him for all

purposes.1 The magistrate judge dismissed all claims other than

the procedural due process claim, and dismissed the procedural due

process claim as it related to Rodriguez in all capacities and

Ewing in his official capacity. The AISD remained as a defendant

only for the limited purpose of enabling the district court to

grant the students’ request for injunctive relief regarding certain

1
This appeal is thus before the court pursuant to 28 U.S.C. §
636(c)(3) (authorizing a direct appeal from a magistrate to the
court of appeals). See also Parker v. Collins, 736 F.2d 313 (5th
Cir. 1984).

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AISD records should the court find that the principal violated the

students’ procedural due process rights.

Ewing and AISD filed a Rule 56 summary judgment motion. The

school argued that the parents lacked standing to assert a due

process claim and that there were informal “give and take” hearings

between the students and the administrators that met the

requirements of procedural due process. The magistrate judge,

persuaded that the parents lacked standing, granted summary

judgment on the due process claims, but denied the motion in all

other respects. The magistrate judge found that there was a

question of fact as to whether the interviews held with students

and parents constituted a “hearing” in which students had been able

to present “their side of the story” regarding the events at issue.

The district court did not make explicit factual findings, but

assumed for the purpose of summary judgment the facts as set forth

by the students. The students submitted affidavits telling similar

stories. As they were arriving at school, Rodriguez or Ewing

noticed their clothing and inquired as to why they were wearing

“gang stuff.” The administrators did not give the students a chance

to answer the apparently rhetorical questions. Ewing told the

students that they would not be allowed to return to Bowie, and a

journalism teacher took pictures of the students and their

clothing. At no time did any administrator ask the students to

explain how they came to wear similarly colored clothing, although

several students protested that they did not belong to a gang.

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 The students’ parents were ultimately called, and though some

argued at length with the principal, the school imposed three-day

suspensions. Affidavits of the students and their parents assert

that the students were not allowed to urge their side of the story.

Some of the parents, however, volunteered that their children did

not belong to gangs. After serving their suspensions, the students

were given re-entry conferences, and they were then permitted to

return to school.

Ewing and AISD appeal from the denial of summary judgment.

II

In Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), the Supreme

Court held that “denial of a claim of qualified immunity to the

extent that it turns on an issue of law, is an appealable 'final

decision' within the meaning of 28 U.S.C. § 1291 notwithstanding

the absence of a final judgment.” See also Coleman v. Houston Ind.

Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997) (“'Denial of summary

judgment on the ground of qualified immunity is immediately

appealable to the extent that the question on appeal is whether the

undisputed facts amount to a violation of clearly established

law.'”) (quoting Kelly v. Foti, 77 F.3d 819, 821 (5th Cir. 1996)).

The inquiry is a subtle one, because the Supreme Court has

confined the Mitchell doctrine. A summary judgment determination

based upon whether there is sufficient evidence to create a genuine

issue of material fact, the Court has held, is not subject to

immediate appeal. See Hare v. City of Corinth, 74 F.3d 633, 638

(5th Cir. 1996) (citing Johnson v. Jones, 515 U.S. 304, 313

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(1995)). Under Johnson, this court “cannot review whether the

evidence could support a finding that particular conduct occurred,

but can take, as given, the facts that the district court assumed

when it denied summary judgment and determine whether those facts

state a claim under clearly established law.” Southard v. Texas

Bd. of Criminal Justice, 114 F.3d 539, 548 (5th Cir. 1997)

(internal quotation marks and citations omitted); see also Nerren

v. Livingston Police Dep't, 86 F.3d 469, 472 (5th Cir. 1996).

In Behrens v. Pelletier, 516 U.S. 299 (1996), the Supreme

Court sought to explain the distinction:

Johnson held, simply, that determinations of evidentiary
sufficiency at summary judgment are not immediately
appealable merely because they happen to arise in a
qualified-immunity case; if what is at issue in the
sufficiency determination is nothing more than whether
the evidence could support a finding that particular
conduct occurred, the question decided is not truly
“separable” from the plaintiff’s claim, and hence there
is no “final decision” .... Johnson reaffirmed that
summary-judgment determinations are appealable when they
resolve a dispute concerning an “abstract issu[e] of law”
relating to qualified immunity, ... typically, the issue
whether the federal right allegedly infringed was
“clearly established.”

Id. at 313.

In Colston v. Barnhart, 146 F.3d 282 (5th Cir. 1998), we

applied the Supreme Court test and distinguished between genuine

issues of fact and material issues of fact. See id. at 284. We

cannot consider a claim “that the district court erroneously

concluded that a genuine issue of fact exists.” Id. Therefore, in

the instant case, we could not reexamine the plaintiffs’ affidavits

and determine that these affidavits did not present sufficient

evidence that the administrators failed to give them a chance to

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tell their side of the story.2 At the same time, we can consider

a claim “that a material issue of fact exists,” id., i.e. that the

legal conclusion the district court drew was incorrect. Thus, for

example, we would have jurisdiction to hold that meetings with

parents always provide adequate due process for children, or to

hold that the law does not require school officials to give

students a chance to tell their side of the story. Our inquiry

thus narrows to the straits of these guidelines.

III

In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court

required that before a school suspend a student, the student be

“given an opportunity to explain his version of the facts at this

discussion” by being “told what he is accused of doing and what the

basis of the accusation is.” Id. at 582. The Court further noted

that while such discussion “will add little to the fact-finding

function where the disciplinarian himself has witnessed the conduct

forming the basis for the charge ... the student will at least have

2
A caveat is that “where the district court does not identify
those factual issues as to which it believes genuine disputes
remain, an appellate court is permitted to go behind the district
court’s determination and conduct an analysis of the summary
judgment record to determine what issues of fact the district court
probably considered genuine.” Id. at 285. The magistrate judge
here held that there was a genuine issue of fact as to whether the
students had been given an opportunity to tell their side of the
story. While the record does not make clear whether the magistrate
judge concluded that administrators’ meetings with parents can be
adequate substitutes for meetings with the students provided the
parents relay the students’ stories, our best assessment is that
the magistrate judge also found a genuine issue of fact as to
whether the parents had been able to present their children’s
stories.

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the opportunity to characterize his conduct and put it in what he

deems the proper context.” Id. at 584.

The appellants seize on this latter language, arguing that the

disciplinarian here witnessed the conduct. But the relevant

“conduct” here is belonging to a gang, and the wearing of clothes

is merely evidence of that conduct.3 Moreover, this focus does not

confront the Supreme Court’s common sense admonition that “things

are not always as they seem to be, and the student will at least

have the opportunity to characterize his conduct and put it in what

he deems the proper context.” Id. We do not read Goss to exempt

conduct witnessed by the school official, and we are unpersuaded

that the students’ assumed inability to tell their stories was here

immaterial.

We need not decide here whether a meeting with a parent is

necessarily a sufficient substitute for a meeting between an

administrator and a student. We recognize that Goss speaks

immediately to the opportunity of students to defend themselves,

not an opportunity for parents to defend their children. Under

some circumstances, a parent may serve as an acceptable surrogate

for a student, whose story is told through the parent. As long as

3
Appellants note that Bowie had adopted a policy prohibiting
the wearing of any clothing in any manner other than that for which
it was designed, and stating that the school would take action if
a student’s appearance conflicted with the safety, health,
behavior, or learning environment within the school. The policy,
however, notably does not ban “reddish or maroonish” clothing.
Thus, the school officials did not directly witness prohibited
conduct, as would be the case if, for example, they caught a
student red-handed violating a weapons policy by smuggling a gun
into the school.

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the student’s story is told, either directly or through a reliable

intermediary standing in loco parentis to the child, the

requirements of Goss are met. Even given the parent’s power to act

as a surrogate for a child where the parent is given the

opportunity to tell the child’s side of the story, we cannot

disturb the district court’s factual conclusion that there is a

genuine issue as to whether the students were able to tell their

side of the story, including the parents in the mix. Our limited

jurisdiction also means that we cannot disturb this conclusion by

considering whether the re-entry conferences were adequate post-

deprivation hearings at which the students were given a chance to

tell their side of the story.4

The appellants contend in the alternative that the

administrators acted as reasonable public officials would and thus

are entitled to qualified immunity. Reasonable public officials,

however, could not differ on whether allowing the students to tell

their side of the story was required. To overcome the defense of

qualified immunity, a plaintiff must show that the contours of the

4
The Goss Court specified that the hearing should be
“preferably prior to the suspension,” 419 U.S. at 584, indicating
that a hearing subsequent to the suspension might be appropriate.
We have recognized before that post-suspension hearings may afford
students adequate procedural due process. In Sweet v. Childs, 518
F.2d 320, 321 (5th Cir. 1975), we held, “The post-suspension
student-parent conferences sufficed as informal ‘give-and-take’
sessions in which the students could air their views as to the
events leading up to the suspensions.” That case differed from this
one in that the students had left the school premises before the
suspensions were announced, so no hearing could have been held on
that day. The case nonetheless reaffirms the proposition that
predeprivation hearings are not always required.

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constitutional right were “sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Where

reasonable public officials could differ on the lawfulness of the

official’s actions, the official is entitled to qualified

immunity.” Cantu v. Rocha, 77 F.3d 795, 806 (5th Cir. 1996).

Appellants emphasize that it was reasonable for Ewing to be

concerned about the appearance and behavior of the students,

because he had heard that a gang fight was imminent. What is at

issue here, however, is not the appellants’ aims, but his means.

While he was free to suspend the students after hearing their

stories, Goss unambiguously required him to allow them to present

those stories, and if he did not do so, he violated the students’

due process rights.

We hold that given the district court’s finding that there was

insufficient summary judgment evidence to force the conclusion that

the students were able to tell their side of the story, we cannot

upset the summary judgment on the qualified immunity issue. Of

course, Principal Ewing still has a qualified immunity defense

available to him at trial. He thus may show that the students,

either personally or through their parents, were able to tell their

side of the story.

AFFIRMED.

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