USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 95-1421
CHRISTOPHER DONOVAN, ET AL.,
Plaintiffs, Appellants,
v.
JOHN M. RITCHIE, PRINCIPAL,
WINCHESTER HIGH SCHOOL, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Before
Boudin, Circuit Judge, _____________
Aldrich and Coffin, Senior Circuit Judges. _____________________
____________________
Paul L. Kenny for appellant. _____________
Mary Joann Reedy for appellees. ________________
____________________
October 24, 1995
____________________
COFFIN, Senior Circuit Judge. This appeal requires us to _____________________
decide whether the procedural due process requirements of Goss v. ____
Lopez, 419 U.S. 565 (1975), applied to and, if so, were correctly _____
applied to a high school student before his suspension.
Appellant, a senior at Winchester High School, brought
suit under both federal and state statutes and constitutional
provisions against the school principal, the superintendent of
schools, and the school committee, seeking injunctive relief,
compensatory and punitive damages, and attorney's fees and costs
for his ten-day suspension from school and exclusion from various
extracurricular activities.
At the conclusion of a five-day bench trial, in which the
evidence and argument focused solely on whether appellant had
been afforded procedural due process, the district court granted
judgment as a matter of law for the school committee members and
found that the process given appellant was adequate. Appellant
appeals from these dispositions but has not furnished us with a
transcript of the trial proceedings. We affirm.
The case revolves about a nine-page document bearing, in
large capital letters, the scatological title, "The Shit List."
Apart from a cover page and a concluding page containing general
remarks of a boorish nature, the document zeroed in on some 140
named students,1 each name being followed by one or more lines of
____________________
1 The district court referred to the list as containing
"the first name and the first initial of the last name" of
students. The list appearing in the record as an exhibit
contains the initial of the given name and the full surname of
each student.
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crude descriptions of character and/or behavior. The freshmen,
fewer than a dozen, were treated to insulting comments about
their appearance or social conduct. But the sophomores and
juniors, more than thirty in each group, and more than sixty
seniors were characterized by epithets that were not merely
insulting as to appearance, but suggestive, often explicitly so,
of sexual capacity, proclivity, and promiscuity.
The sequence of events leading to appellant's suspension is
the following. On September 18, 1994, a Sunday, some fifteen
students were gathered in the home of one of them when the list
was created by someone still unknown. On Thursday appellant and
two other boys made copies of the list and put them in a trash
barrel. They were delivered to the school soon after. After it
was discovered by a faculty member the next day, Principal
Ritchie announced to the school that the list was harmful and
degrading, and urged students to provide information as to the
perpetrators. On the following Monday, September 26, appellant
and two others came to Ritchie's office and denied any
involvement.
The next day they came back and said that they had
photocopied the list but denied knowing the contents and that,
since the photocopying was outside of school premises, they were
not subject to school discipline. The principal disagreed and
said that they would probably face suspension. Meanwhile,
Principal Ritchie met with other students and compiled a list of
fifteen students who were said to be present at the creation of
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the list. On Thursday, September 29, a letter was sent to the
fifteen, announcing a meeting the next day for them and their
parents.
At the September 30 meeting, Principal Ritchie said that the
list was a violation of the school's rules, as set forth in the
school handbook, against harassment and obscenity. After the
meeting, Ritchie met with appellant and his mother and said he
was indefinitely suspended. He did not specify the length of the
suspension, but said that information would soon be forthcoming.
In a letter requested by the principal and received the following
Monday, October 3, appellant wrote apologizing for this "bad
mistake" and saying:
My involvement in the list is such; I had the list
copied with 2 other boys and we then proceeded to take
the list put it in a trash bag and put it in the barrel
at Gin [Ginn Field] where it was to be picked up.
Two days later, Ritchie met with the school's "Crisis Team,"
consisting of twelve staff members, and then wrote appellant's
mother, specifying "the consequences for your son, Christopher's
participation in the chain of events leading up to the
distribution of the 'Shit List' at Winchester High School." They
were suspension for ten days, and exclusion from any school
social events and interscholastic athletics.
Principal Ritchie identified the following parts of the
Student Handbook as being violated: (1) the cover, which called
for an end to name calling, harassment, "put downs;" (2) an
opening statement proscribing "harassment of any kind;" (3) a
section proscribing violent behavior, vandalism, or violation of
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students' civil rights on school premises or at school-related
events, carrying the sanction of indefinite suspension or
expulsion; and (4) a section barring abusive or obscene language
or materials. Possible reinstatement to athletic programs (in
appellant's case, lacrosse) and removal of the letter from
appellant's file was to depend on steps "to repair the damage" to
individuals and the school.
In a subsequent, undated letter to the principal, appellant
complained of his "excessive punishment" and added to his prior
statement that he thought "it was the Underground Newspaper."
Appeals to the superintendent and later to the school
committee, in which presentations were made by both appellant's
attorney and the principal, were unsuccessful.
Discussion __________
We must first face a threshold question: whether the
sanction imposed on appellant was an expulsion or a ten-day
suspension. Appellant's brief assumes throughout that it was the
former, citing the fact that Principal Ritchie initially told
appellant and his mother than he was indefinitely suspended.
Appellant then cites Jones v. Fitchburg, 211 Mass. 66, 68, 97 _____ _________
N.E. 612, 613 (1912), for the proposition that a suspension,
"intended to operate[] for an indefinite period, . . . in effect
amount[s] to a permanent exclusion. . . ." Accordingly, he
invokes the authorities that specify a considerable panoply of
rights, including the assistance of counsel and the right to
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examine witnesses at a hearing. See, e.g., Dixon v. Alabama ___ ___ _____ _______
State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961). __________________
Unfortunately for appellant, the mere repetition of the
expulsion label is of no avail. As the district court found,
Principal Ritchie, after informing appellant and his mother that
he was indefinitely suspended, told them that they would receive
the information as to the length of the suspension in the mail
"shortly thereafter." Five days later, after conferring with the
"Crisis Team," he sent his letter of October 5, containing the
details of the ten-day suspension. Appellant cannot attack the
basis of the district court's finding that he was suspended, for
he has not furnished us with a transcript. Real v. Hogan, 828 ____ _____
F.2d 58, 60 (1st Cir. 1987) ("If [the existing record] proves
inconclusive, it is the appellant who must bear the brunt of an
insufficient record on appeal.") In any event, however, we would
be unlikely to find "clear error" in the finding. Cf. Roland M. __ _________
v. Concord School Committee, 910 F.2d 983, 990 (1st Cir. 1990). ________________________
We are, therefore, dealing with the kind of temporary
suspension at issue in Goss v. Lopez. In that case the Court ____ _____
succinctly summarized the three procedural prerequisites: "that
the student 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. The Court added, "In the
great majority of cases the disciplinarian may informally discuss
the alleged misconduct with the student minutes after it has
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occurred." Id. at 582. In order for the student "to explain his ___
version of the facts at this discussion, [he should] first be
told what he is accused of doing and what the basis of the
accusation is." Id. "Requiring that there be at least an ___
informal give-and-take between student and disciplinarian," the
Court concluded, would at least give the student "the opportunity
to characterize his conduct and put it in what he deems the
proper context." Id. at 584. ___
It is clear, first of all, that appellant had adequate
notice. The principal warned him several days before the
suspension took effect that the conduct he had acknowledged
likely would result in his suspension. The principal's letter of
October 5, elaborating on and specifying the bases for the
suspension, referred to the High School Handbook, which every
student was obliged to read and understand. Its cover, as the
letter noted, briefly but clearly identified name-calling,
harassment, and "put downs" as actions to be resisted. The
principal also referred to the "Opening Remarks" of the Handbook,
prohibiting "harassment of any kind." This introductory section
defined "harassment" as "conduct, behavior, or comments that are
personally offensive, degrading, or threatening to others," and
gave such examples as "sexually suggestive remarks, . . . and the
display or circulation of written materials . . . that are
degrading to any individual. . . ."
Thirdly, the principal cited to a regulation barring
fighting, violent behavior, or "violation of other students'
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civil rights" on school premises, the violation of which called
for an indefinite suspension and possibly expulsion. Appellant
challenges the relevance of this regulation to the facts of his
case. He also argues that more formal procedures regarding
notice, counsel, and presentation of witnesses are required under
this regulation. This would seem to be true but it is obvious
from the sanction imposed, a temporary suspension, that this
regulation was not a ground for decision.
The principal's fourth basis for punishment was regulations
barring the use of either obscene materials or language that was
"abusive," "obscene," "profane," or "vulgar."
Apart from the attack noted above to the third ground listed
by the principal, appellant makes only two arguments. The first
is that a passage in "Opening Remarks" urges sensitivity to the
feelings of others and prompt communication between a student who
feels aggrieved and an offender so that objectionable behavior
may be brought to an end quickly. To read this as preempting any
more severe treatment of what has been "strictly prohibited" is
not only to treat the Opening Remarks section as internally
inconsistent but also to ignore other parts of the Handbook
detailing a twelve point "Range of Consequences" for violations
of the student disciplinary code that extend from verbal warning
to expulsion. Appellant's second thrust is against the charges
of abusive or obscene language. His brief makes the assertion
that "Notwithstanding that Ritchie found no evidence to support
the foregoing, Ritchie cites this regulation without ever
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explaining to Donovan how it was violated." This, in the light
of "The Shit List" itself, defies rational justification even in
the context of strenuous advocacy.
By the same token, there can be no rational question raised
as to the basis for the suspension. Indeed, appellant knew
precisely what the basis was -- the preparation and distribution
of the list; he acknowledged his part in making photocopies and
merely asserts that he did not know the contents. This leads us
to the third requirement of Goss v. Lopez, an opportunity for the ____ _____
student to have presented his version of the facts.
We conclude from the record that appellant had, and took
advantage of, multiple opportunities to present his view of what
occurred. On September 26, he and two others met with Principal
Ritchie and denied any involvement. On September 27, they had
another meeting and admitted photocopying, but no knowledge of
contents. They also advanced their defense that their act did
not take place on school property. On September 30, appellant
and his mother met separately with Principal Ritchie, after a
larger meeting, and had the opportunity to add to what had been
said.
We add these observations. At no time has appellant
indicated the presence of any evidence other than his own say-so
that could shed light on his defense of ignorance of contents.
Moreover, as we reflect on the giant-sized capital letters
spelling out the title of the list on the cover, and the
following listing names with, generally, a salacious one-line
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commentary, we can be skeptical of the likelihood of one
remaining oblivious to content after feeding into and retrieving
from the copying machine multiple copies of this nine-page
document. Given the nature of the defense, the nature of the
evidence, the lack of any trial transcript, and the opportunities
given appellant to explain and support his position, we conclude
that the disciplinarian was entitled to make a credibility
judgment.
We take note of an argument briefly advanced by appellant --
that, because of the bar to interscholastic athletics and other
school activities, in addition to a ten-day suspension, the
punishment falls outside of Goss and required a higher level of ____
procedural formalities. We are not unmindful of the impact of
sanctions other than suspension and expulsion. As the Court in
Goss recognized, there may be "unusual situations, although ____
involving only a short suspension, [where] something more than
the rudimentary procedures will be required." 419 U.S. at 584.
But the mere fact that other sanctions are added to a short
suspension does not trigger a requirement for a more formal set
of procedures. In Goss itself one of the plaintiffs had not only ____
been suspended, but had been transferred to another school. Id. ___
at 569 n.4. What must remain the focus is whether the student
was given the opportunity to present his version of what
occurred. In this case appellant has never suggested any respect
in which he was denied this opportunity.
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We add one final word. We have said that appellant bears
any risk stemming from an inadequate record. Our reading of
appellees' Proposed Findings of Facts below suggests that the
absence of a record may have deprived us of evidence that is more
adverse than helpful to appellant. In any event, on this record
we conclude that he received all of the process that was due.
We make short shrift of two other arguments. One is that
Mass. Gen. L. ch. 71, 84 prohibits the suspension of a student
for "marriage, pregnancy, parenthood or for conduct which is not
connected with any school-sponsored activities. . . ." While the
context suggests that the statute is dealing with matters other
than actions taken with and aimed toward other students, we are
entirely satisfied with the district court's reasoning that
appellant's "admitted off-premises conduct led to the
distribution of the list on school premises." As for appellant's
objection to the judgment dismissing the claim against the
members of the school committee, our due process holding renders
further statement unnecessary.
We do not, however, deem this such a frivolous appeal as to
grant appellees' motion for attorney's fees.
AFFIRMED. ________
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