Case: 10-60392 Document: 00511406175 Page: 1 Date Filed: 03/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 10, 2011
No. 10-60392 Lyle W. Cayce
Clerk
DEREK HARRIS, by and through his parents and next friends, Robert and
Phyllis Harris; PHYLLIS HARRIS, Individually,
Plaintiffs - Appellants
v.
PONTOTOC COUNTY SCHOOL DISTRICT; KEN ROYE, individually and in
his official capacity of Superintendent of Pontotoc County School District,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
Before KING, DAVIS, and SOUTHWICK, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Derek Harris and his mother, Phyllis Harris, brought suit against the
Pontotoc County School District and its superintendent, Ken Roye. They
alleged that Derek was denied his due process rights and defamed, and that Mrs.
Harris had her First Amendment rights violated and suffered tortious
interference with her contract of employment with the school district. Summary
judgment was granted to the defendants. We AFFIRM.
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No. 10-60392
STATEMENT OF FACTS
Derek Harris was an eighth grade student at South Pontotoc Middle
School. His mother Phyllis Harris was the secretary for the principal of South
Pontotoc Elementary School. Both schools are within the Pontotoc County
School District and located on the same campus.
In September 2008, Derek and a friend emailed their computer teacher,
Terina Dexter, asserting they had hacked into Dexter’s computer. Later in the
email, the boys stated they were only joking about having hacked into her
computer. About two weeks later, Derek sent Dexter a message during
computer class that read, “you might need to tell the admin the school is
vulnerable to a DoS,” which is an acronym for a denial of service attack. Dexter
informed Melanie Kidd, the District’s technology coordinator, of the message.
Kidd informed Scotty Collins, the middle school principal.
Several days later, Ken Roye, the District’s superintendent, learned of
Derek’s communications and asked Kidd to investigate. Knowing that Derek
often used his mother’s computer at the elementary school, Kidd recovered a log
of all internet queries from Mrs. Harris’s computer. Some of the queries related
to hacking, key loggers, and denial of service attacks.
The next day, Kidd contacted the Mississippi Department of Education.
The Department agreed to send a computer analyst, Glen Popeil, the following
morning to inspect the network’s security and possibly speak with Derek.
At 7:11 the next morning, October 17, Derek used his mother’s computer
at the elementary school to send an email to Chris Garrard, a computer
technician at the middle school. Derek requested help with running two batch
files. He also asked whether Garrard had heard of a denial of service attack.
Garrard immediately forwarded the email to Kidd, who then forwarded the
email to Collins and Roye with the following message:
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This student has issues and in my opinion needs to be off our
network and SURELY does not need to be using his mother’s
computer to send emails. [Mississippi Department of Education]
network security will be here at 9:00 this morning. It would make
EVERYONE[’]S life much better [i]f he would tell[] us where the
batch files are and what [he] has attempted to do. If [the
Department] has to comb our network it is going to get ugly!
Around 7:48 a.m., the District began experiencing network problems. At
9:00 a.m., Popeil arrived at Kidd’s office. The two of them removed Mrs. Harris’s
computer from the network and disconnected the school’s internet connection.
The network problems ended at 9:15 a.m.
From there, Collins, Popeil, Kidd, and Garrard went to Derek’s second-
period computer class, unplugged the computer Derek was using, and removed
Derek from class to question him.
Derek’s version of subsequent events was that he was taken to a
classroom, where Collins searched Derek’s bag and asked whether he had any
flash drives or disks. Derek told Collins he had a disk with a demonstration of
a key logger program. Collins asked Derek why he had the disk. Derek
responded that he brought it for Collins’ wife, the school counselor and his third-
period teacher, because she had recently asked Derek how key logger programs
work. Garrard told Derek that someone had engaged in a denial of service
attack on the school server.
Derek was then taken to another room, where Collins, Popeil, Kidd, and
Garrard questioned him about his knowledge of computers and what he had
done. They presented him with a copy of the email he had sent Garrard that
morning and a copy of the school’s acceptable-use policy for computers. They
then identified what rules he had broken and told him that he was being
investigated for causing the denial of service attack. According to Derek, they
said that “his mother could lose her job, he could go to jail, his plans for college
were over, and [his] father would be responsible for all the damage [he] caused.”
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Derek denied any knowledge of the attack, and named a student at another high
school who might have been responsible. Derek then returned to class.
Between fourth and fifth periods, Derek met with Collins to inquire about
the status of the investigation. Collins said that he did not have any more
information other than that Derek was being blamed for the attack, and that he
would be suspended until the investigation was complete. At that point, Derek’s
mother joined the meeting. Collins presented this letter:
Derek was found in [possession] of “key logger” software this
morning. That same “key logger” software was installed on a
computer. Also this morning, someone set up a school computer to
“ping” our network which caused our network to slow down and stop
working. This “pinging” could have caused damage to our networks.
We suspect that Derek may be responsible for this pinging
attack. He has admitted to bypassing the security on a school
computer to pull up the [Disk Operating System] prompt.
A network specialist from the state department of education
is here in the district investigating our computer network. Until
such time as he completes his investigation, Derek is suspended
from school.
At other times, the“pinging” incident was referred to as a denial of service
attack. Later that afternoon, after Mrs. Harris and Derek had returned home,
Mrs. Harris spoke with Superintendent Roye on the telephone about what Derek
was suspected of having done and what punishment was being considered.
On October 22, both of Derek’s parents met with Roye to discuss the
situation. Roye told them he would recommend to the school board that Derek
be sent to alternative school for 45 days. Mrs. Harris complained about what she
considered unfair treatment of her son, requested further process, contested
some of the allegations against Derek, and asked him to instruct teachers to stop
discussing Derek in front of students. Roye allegedly replied that there was “no
due process” and that he could not stop his employees from talking.
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The school board approved Roye’s recommendation on October 23. Derek
began attending alternative school on October 27. That same day, Roye received
an email from the high school principal indicating that several teachers were
concerned that personal information might have been compromised by Derek’s
possible access to the information on his mother’s computer. According to the
District, Roye decided to reassign Mrs. Harris to an assistant teacher’s position
to limit her access to computers containing confidential information.
On November 3, Mrs. Harris found out about the reassignment. She left
the office and returned home. Her husband called Roye to protest this change
in duties and Derek’s punishment. He later alleged that Roye made these
statements: if they were considering a lawsuit, Mrs. Harris would be fired; she
had been reassigned because she had “bad mouthed” Roye around town; and
parents did not trust her around their children. Mrs. Harris grabbed the phone
and called Roye “a liar”; Roye alleges she also used profanity towards him. Roye
immediately terminated her employment over the phone.
On Derek’s behalf, his parents sued the District and Roye; Mrs. Harris
also sued individually. These were the claims: Derek’s right to due process was
violated; Derek was defamed; Mrs. Harris was wrongfully terminated in
retaliation for protected First Amendment speech; Roye tortiously interfered
with her employment contract.
The district court granted summary judgment to the District on all claims.
A timely appeal followed.
DISCUSSION
A grant of summary judgment is reviewed de novo. Bolton v. City of
Dallas, 472 F.3d 261, 263 (5th Cir. 2006). Summary judgment is appropriate if
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant has the burden
of showing that summary judgment is appropriate, and we view the evidence in
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the light most favorable to the non-moving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Once the moving party has
carried its burden, the non-movant must come forward with specific facts
showing a genuine factual issue for trial. Id. at 587.
I. Derek’s Due Process Claim
A State’s extending the right to an education creates a property interest
protected by the Due Process Clause of the Fourteenth Amendment; a State
“may not withdraw that right on grounds of misconduct absent[] fundamentally
fair procedures to determine whether the misconduct has occurred.” Goss v.
Lopez, 419 U.S. 565, 574 (1975) (citation omitted). A student’s transfer to an
alternative education program does not deny access to public education and
therefore does not violate a Fourteenth Amendment interest. See Nevares v. San
Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26-27 (5th Cir. 1997). Thus, we
analyze only Derek’s temporary suspension.
Because Derek was subject to a temporary suspension of no more than 10
days, he had 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.” Goss, 419 U.S. at 581. “[I]n being
given an opportunity to explain his version of the facts at this discussion, the
student [must] first be told what he is accused of doing and what the basis of the
accusation is.” Id. at 582. There is no particular delay or formality required, but
there must be at least “an informal give-and-take between student and
disciplinarian.” Id. at 582, 584. In addition, “a parent may serve as an
acceptable surrogate for a student” to tell the student’s side of the story. Meyer
v. Austin Indep. Sch. Dist., 161 F.3d 271, 275 (5th Cir. 1998).
In this case, the district court summarized its findings in this way:
Derek admitted to having possession of a key logger program and to
using his mother’s school computer to send emails and attempt
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internet searches in violation of the school district’s policy. Derek
clearly and admittedly violated the district’s policy, and the record
reveals that both Derek and his parents were adequately informed
of the accusations against Derek and the reasons for the disciplinary
measures taken and were afforded an adequate opportunity to
respond.
We disagree with part of the district court’s summary of the evidence. As
we view the evidence, Derek did not admit to having possession of an operative
key logger program. Instead, when initially questioned and continuing in this
suit, he has asserted that the relevant disk contained a demonstration of a non-
functioning key logger program. Further, though the district court was correct
that Derek seemingly admitted to using his mother’s school computer to send
emails and conduct internet searches that violated District policy, his suspension
was not based on those actions. Consequently, we do not rule on the grounds
used by the district court, namely, that Derek admitted to the offense. Instead,
we examine whether he was given the process that was due.
We must first be clear as to the basis for his suspension. These are the
charges in the letter given to Derek: (1) he had possession of a key logger
program, the same program that was installed on a school computer; (2) a school
computer had been set up to “ping” the school’s network and Derek was
suspected of being responsible; and (3) Derek admitted to bypassing the security
on a school computer to pull up the Disk Operating System prompt.
The truth of these charges is not the question in evaluating whether Goss
has been satisfied. Instead, the issue is whether Derek was adequately informed
of the specific charges from which the suspension derived, and whether he was
given “an opportunity to present his side of the story.” Goss, 419 U.S. at 581.
He received the written charges on the day he was suspended. The remaining
fact issue, then, is whether he or his parents had a chance to respond to the
charges. Derek and his parents had numerous opportunities to meet with school
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officials, to hear some of the charges, and to explain and respond. We examine
the evidence to see if there is any dispute that he or his parents were aware of
all the charges and had a chance to explain and respond.
Derek’s multiple opportunities to give his side of the story included two
morning meetings, one with Collins and Garrard, and a second with Collins,
Popeil, Kidd, and Garrard. As to the key logger program, Derek explained that
his disk only contained a non-functioning demonstration of the program, which
he alleged to have brought for Collins’s wife. He denied doing anything on a
computer that caused the network attack, and said that he did not know what
had happened. Derek offered the name of another student who he thought
might have been responsible. Additionally, there is uncontested evidence that
Derek admitted to bypassing the security on a school computer to access the
Disk Operating System prompt. Porter v. Ascension Parish Sch. Bd., 393 F.3d
608, 624 (5th Cir. 2004).
It is not clear that Derek had an opportunity to respond to the suspension
letter itself. The letter was delivered at the final meeting of the day with Derek
and his mother. Collins stated in an affidavit that he explained the reasons for
the suspension. On the other hand, Derek and his mother contend that Collins
did not mention the key logger software at the time the letter was given to them.
The letter certainly made that assertion, regardless of whether Collins orally
articulated it as well. Derek was not required to have an opportunity to respond
at the exact moment of suspension. See Meyer, 161 F.3d at 275 n.4; Goss, 419
U.S. at 582-84. Derek already had been given explanations of the accusations
against him and an opportunity to respond to them. That process was sufficient.
Summary judgment was proper as to the due process claim.
II. Derek’s Defamation Claim
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Derek alleges that he was defamed when teachers made comments to
students that he was a “hacker” and had changed grades. All of Derek’s
allegations are based either on hearsay or on statements made directly to him.
Hearsay evidence inadmissible at trial cannot be used to create a genuine
issue of material fact to avoid summary judgment. Broadway v. City of
Montgomery, 530 F.2d 657, 661 (5th Cir. 1976). Defamatory statements must
be made to a third party and not to the claimant. See Smith v. Jones, 335 So. 2d
896, 897 (Miss. 1976). Summary judgment on the defamation claim was proper.
III. Mrs. Harris’s First Amendment Claim
Mrs. Harris argues that her freedom of speech was violated when Roye
fired her in retaliation for protesting the actions against Derek and for
threatening to take legal action against the District.
The First Amendment protects a public employee’s speech in cases of
alleged retaliation only if the speech addresses a matter of “public concern.”
Connick v. Myers, 461 U.S. 138, 147 (1983). Whether speech is of public concern
is “determined by the content, form, and context of a given statement, as
revealed by the whole record.” Id. at 147-48. “Because almost anything that
occurs within a public agency could be of concern to the public, we do not focus
on the inherent interest or importance of the matters discussed by the
employee.” Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir.
1986). Rather than looking at whether the public might or would have an
interest in the matter, the court examines whether the speaker’s motivation was
to speak primarily as a citizen or as an employee. Dodds v. Childers, 933 F.2d
271, 273 (5th Cir. 1991). In cases of mixed speech or motives, “the speaker must
have spoken predominantly ‘as a citizen’ to trigger First Amendment protection.”
Id. at 274 (citation omitted). If the speech is not of public concern, we do not
question the employer’s motivations for taking action against the employee. Id.
at 273.
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Despite Mrs. Harris’s conclusional statements that she questioned
whether the District’s “lack of due process for students complied with the United
States Constitution and established case law,” the evidence in the record shows
only a mother who complained about the treatment her child received in a
discrete incident and an employee who was upset at being reassigned. Both
matters are personal. It is evident that she did not speak predominantly as a
citizen, thus the District was entitled to summary judgment on this claim.
IV. Mrs. Harris’s Tortious Interference Claim
Mrs. Harris also brought a claim against Roye individually for tortious
interference with her employment contract. An employee in a position of
responsibility who thereby is a party to the employment contract cannot be held
liable for tortious interference with a contract unless the employee acted outside
the scope of his authority and with bad faith. Morrison v. Miss. Enter. for Tech.,
Inc., 798 So. 2d 567, 574-75 (Miss. Ct. App. 2001). Mrs. Harris argues that Roye
fired her in retaliation for questioning Derek’s discipline and for her threats to
sue. She did not, however, offer any evidence to indicate the claim is anything
other than duplicative of her unsuccessful First Amendment claim. Roye was
not acting outside the scope of his authority when he fired Mrs. Harris.
Summary judgment was appropriate.
AFFIRMED.
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