C.B. Ex Rel. Breeding v. Driscoll

United States Court of Appeals,

Eleventh Circuit.

No. 94-8494.

C.B., a minor, By and Through his father and next of friend,
William J. BREEDING, Jr.; T.P., a minor, by and through her mother
and next of friend, Shirley Paschall, Plaintiffs-Appellants,

v.

Sandra DRISCOLL, Principal, individually and in her official
capacity; Edward E. Corry, Superintendent, individually and in his
official capacity; Greene County Board of Education, Defendants-
Appellees.

April 18, 1996.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 3:91-00136-CA-ATH(DF), Duross
Fitzpatrick, Chief Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and HENDERSON, Senior
Circuit Judge.

EDMONDSON, Circuit Judge:

Plaintiffs in this action, minors TP and CB, sued their former

high school principal, Dr. Driscoll, and superintendent, Mr. Corry,

in Defendants' individual and official capacities under 42 U.S.C.

§ 1983. The claims asserted were for constitutional injuries

allegedly suffered when Defendants suspended Plaintiffs from

school. The district court granted summary judgment to Defendants.

And, in the light of the exceedingly limited rights of public

school students facing school discipline, we affirm.

I. Facts

TP was involved in a fight at the Greene-Taliaferro

Comprehensive High School, where she was a student. According to

school administrators, TP refused to calm down when teachers

arrived, attempted again to attack the other student, and screamed
obscenities and threats. A teacher eventually carried her to the

principal's office, where TP continued to shout obscenities and to

disobey the school administrators' instructions to remain seated

and to wait quietly. Dr. Driscoll also says—without

contradiction—that TP injured her as administrators tried to calm

TP in the principal's office. The police were summoned, and TP was

taken to the station. From there, she called her mother, who

retrieved her.

TP and her mother discussed the incident later that same day

with Dr. Driscoll by phone. TP told Dr. Driscoll that the other

student had started the fight. She claims, however, that Driscoll

was uninterested in her story, and TP argues that the decision to

suspend her had already been made. Dr. Driscoll is herself unsure

whether the decision to suspend TP was made before or after the

phone conversation.

School policy authorizes administrators to suspend students up

to nine days following a conference; longer suspensions and

expulsions require that the Board of Education first hold a more

formal hearing. Superintendent Corry explained to TP's mother that

TP was entitled to no formal hearing. TP then enrolled in a

neighboring school district and filed this lawsuit.

About a week after the TP incident, Assistant Principal

Johnson was told by a student that CB was going to make a drug sale

at school later in the day. The informant had been told by another

student that CB had hidden the drugs in CB's coat. In response,

Driscoll and Johnson went to CB's class, asked him to follow them

to the hallway, and informed him that it had been reported that he
was in possession of drugs. They asked CB to empty his pockets,

and CB removed from his coat two plastic packets of what appeared

to be marijuana. CB maintained he knew nothing about the packets.

Dr. Driscoll permitted CB to return to class. At a conference

attended by CB's grandparents, CB was given a chance to explain the

source of the packets. Dr. Driscoll told CB that the police would

test the substance and that she would continue investigating. She

did not suspend him then.

The next week CB's father, stepmother, grandmother and aunt

(who is also CB's attorney before this Court) attended a meeting

with Driscoll and a Georgia Bureau of Investigation agent where CB

was given the opportunity to explain himself again. Dr. Driscoll

decided to suspend CB for nine days for the possession of a

"look-alike" illegal substance. After the suspension, Driscoll

decided that CB would—pending the outcome of the drug testing—be

assigned to the "alternative school" where CB would do work

assigned by the regular teachers, but would not attend regular

classes. CB then withdrew from school and filed this lawsuit.

Later, tests revealed the substance not to be marijuana.

The school handbook permits administrators to search the

person effects of students when administrators reasonably suspect

that the search will reveal evidence of a violation of law or

school rules. Possession of both illegal drugs and substances that

appear to be illegal drugs are prohibited by School Rule 23. CB

admitted in his deposition that he was aware of the rules against

illegal drugs, including the prohibition against "look-alikes."

Everyone concedes the packets looked to contain marijuana.
 Review of summary judgment is plenary; and this court will

affirm if, after construing the evidence in the light most

favorable to the non-moving party, it concludes that no genuine

issue exists on a material fact and that the moving party is

entitled to judgment as a matter of law. Delancey v. St. Paul Fire

and Marine Insurance Co., 947 F.2d 1536 (11th Cir.1991).

II. TP's Due Process Claims

A. Procedural Due Process

TP argues that her suspension for fighting, screaming

obscenities, and refusing to cooperate with and assaulting faculty

members was imposed with inadequate process. She says she received

no notice or hearing and alleges the decision to suspend was made

before the phone conference.1

The Supreme Court determined in Goss v. Lopez, 419 U.S. 565,

577, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975), that the Fourteenth

Amendment is implicated in school suspension decisions when a state

provides an entitlement to a public education. But, the

characterization of what process is due in the academic setting was

strikingly tempered by the Court's recognition that "[j]udicial

interposition in the operation of the public school system ...

raises problems requiring care and restraint." Id. (citations and

internal quotation marks omitted). Therefore, when a student is

suspended for fewer than ten days, the process provided need

1
The district court originally determined that factual
issues required a jury trial on the question of when (and if)
TP's hearing was provided; but on reconsideration, the court
held that TP received a hearing during the phone conversation
between TP and Dr. Driscoll that satisfied due process regardless
of whether or not it preceded the decision to suspend.
consist only of "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 582, 95 S.Ct. at 740.

The dictates of Goss are clear and extremely limited:

Briefly stated, once school administrators tell a student what they

heard or saw, ask why they heard or saw it, and allow a brief

response, a student has received all the process that the

Fourteenth Amendment demands. The only other requirement arises

from the Court's admonishment that the hearing come before removal

from school "as a general rule," unless a student's continued

presence is dangerous or disruptive. In these instances, removal

can be immediate. Id.

When TP was removed from school, she posed a danger to persons

or property or both and was disruptive. After fighting with two

girls, she had had to be physically carried to the principal's

office by a teacher; and while the details of what followed are

contested, TP admits she was emotionally distraught and that she

expressed to administrators her intention to "kill that girl" who

had allegedly attacked her. She also admits that she refused to

stay seated in the office and tried to run out of the office. Dr.

Driscoll says (without contradiction) that she was injured in the

attempts to calm TP in Driscoll's office. So, TP was first

properly removed from school under the circumstances even if she

was given no opportunity to explain herself. The important issue

is whether she had the chance to explain her behavior before the

decision setting the duration of the suspension—nine days—became
final.

Appellees assert that TP received her hearing by telephone

later that day, when TP's mother phoned Dr. Driscoll at school. TP

and her mother both took part in that call.2 Dr. Driscoll admits

that she cannot recall whether the initial decision to suspend was

reached before or after that call.

Despite this uncertainty, Appellees are still correct that the

phone call satisfied the requirements of the due process clause.

This court had occasion to consider, shortly after Goss, the issue

of whether a hearing held after a suspension decision has been

announced, but in time to modify or to reverse the decision,

satisfies due process. In Sweet v. Childs, 518 F.2d 320, 321 (5th

Cir.1975), the student plaintiffs were removed from school because

they were causing a disruption. Later that day, an announcement

was made over local radio that they had been suspended. Shortly

thereafter, in a "post-suspension student-parent conference[ ],"

the students were allowed to air their views; and the suspensions

were reversed. Id. Applying Goss, the court found no deprivation

of due process.

Sweet teaches that when students are removed from school for

creating a disturbance, a tentative decision to continue to suspend

the students for some days may be made before a hearing as long as

the disciplinarian goes on to hold a prompt—given the

practicalities—hearing at which the preliminary decision to suspend

can be reversed. Here, TP acknowledged in her deposition that,

2
Appellees do not argue that TP received a sufficient
hearing in the principal's office, and therefore we do not
consider this idea.
within hours of leaving school, she was able to tell her side of

the story to Dr. Driscoll on the phone: "I said [to Dr. Driscoll],

no we were not fighting.... [T]hese girls jumped on me, and her

sister was holding me." TP also told Dr. Driscoll her attacker

jumped on her "for no reason." Dr. Driscoll then declined to alter

the punishment. Under Sweet, that the hearing did not precede the

initial determination of TP's punishment is not dispositive on

whether due process was afforded. Therefore, because TP was

apprised of the charges against her, and Dr. Driscoll soon heard

TP's version of the morning's events, TP—given the

circumstances—received sufficient process under Goss.

B. Substantive Due Process

TP claims that the procedural due process violation discussed

above also constituted a violation of what the Supreme Court has

called substantive due process: she says the nine-day suspension

caused her injury of a "shocking and abusive nature." And, TP

argues her substantive due process rights were violated because

Driscoll, who made the decision to suspend, was biased because TP

injured Driscoll in the struggle in the principal's office

following TP's fight with other students.

These substantive due process claims are without merit.

Pursuant to this court's opinion in McKinney v. Pate, 20 F.3d 1550,

1557 n. 9 (11th Cir.1994) (en banc), the decision to suspend TP for

nine days is an executive decision. As an executive act, the

suspension contravenes substantive due process rights only if, in

the Supreme Court's words, the right affected is "implicit in the

concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319,
325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), overruled on other

grounds by Benton v. Maryland, 395 U.S. 784, 793, 89 S.Ct. 2056,

2062, 23 L.Ed.2d 707 (1969). See also McKinney, 20 F.3d at 1556

(noting strong presumption against discovering substantive due

process protection for unenumerated rights). The right to attend

a public school is a state-created, rather than a fundamental,

right for the purposes of the substantive due process clause. See

Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 2396, 72 L.Ed.2d

786 (1982) (noting that though it is societally important,
"[p]ublic education is not a "right' granted to individuals by the

Constitution") (citations omitted).

Therefore, the "right" to avoid school suspension may be

abridged as long as proper procedural protections are afforded;

and TP's substantive due process challenge must fail. By the way,

TP's quarrel with Driscoll's supposed bias is also properly seen as

an alleged deprivation of procedural, not substantive, due process.

McKinney, 20 F.3d at 1560-61. Thus, TP's effort to invoke

substantive due process fails.3

3
We note that Driscoll's alleged bias amounts to no
deprivation of procedural due process either. In the school
context, it is both impossible and undesirable for administrators
involved in incidents of misbehavior always to be precluded from
acting as decisionmakers. Thus Justice White noted in Goss, 419
U.S. at 584, 95 S.Ct. at 741, that as long as the "informal
give-and-take" occurs, a disciplinarian who has witnessed the
conduct at issue can suspend a student on the spot. And in an
analogous situation, we have written that "in the case of an
employment termination ... due process does not require the state
to provide an impartial decisionmaker at the pre-termination
hearing," McKinney, 20 F.3d at 1562 (citing Parratt v. Taylor,
451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981))
(citations and internal quotation marks omitted). The reasoning
is that often the supervisor will participate in events preceding
termination, and thus always requiring an impartial decisionmaker
to be educated on the facts would render the required processes
 III. CB's Fourth and Fourteenth Amendment Claims

A. Illegal Search and Seizure

CB argues that Driscoll lacked reasonable grounds to search

him because no administrator observed him with drugs, no

administrator observed him acting strangely, and the informant was

unreliable. Whether the facts construed in favor of CB show that

Driscoll had reasonable grounds to suspect the presence of banned

substances is a question of law and review is de novo. See United

States v. Harris, 928 F.2d 1113 (11th Cir.1991). We hold that the

search of a student in the instant circumstances does not violate

the Fourth Amendment, and therefore we need not consider issues of

qualified immunity and of local government liability.

In New Jersey v. T.L.O., 469 U.S. 325, 342, 105 S.Ct. 733,

743, 83 L.Ed.2d 720 (1985), the Supreme Court held that school

officials need only "reasonable grounds for suspecting" that a

search will turn up evidence that the student has violated either

the law or school rules. "Sufficient probability, not certainty,

is the touchstone of reasonableness under the Fourth Amendment."

T.L.O., 469 U.S. at 346, 105 S.Ct. at 745 (citations and internal

quotation marks omitted). The tip in this case provided sufficient

probability, viewed against the "reasonable grounds" standard, to

justify the search here.

A fellow student provided the information that CB carried

too complex. See, e.g., Schaper v. City of Huntsville, 813 F.2d
709, 715 n. 7 (5th Cir.1987) (citations omitted). This reasoning
applies with at least equal force in the school suspension
context. Even if Driscoll was not wholly impartial, we conclude
as a matter of law that Driscoll's involvement in the events in
the office did not preclude her from acting as the decisionmaker.
drugs with the intent of selling them. The tip was provided to

administrators directly, rather than anonymously, and was thus more

likely to be reliable because the student informant faced the

possibility of disciplinary repercussions if the information was

misleading. Cf. United States v. Harris, 403 U.S. 573, 583, 91

S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971) (plurality opinion)

(stating "common sense" proposition that tip that places informant

at risk of prosecution is entitled to greater credit). Many courts

have approved reliance on tips from fellow students. E.g., S.C. v.

State, 583 So.2d 188, 192 (Miss.1991) (noting that tips from

students are less suspect than those from society in general). And

while the tip did not include the identity of the student who

observed the contraband firsthand, the Supreme Court has recognized

that information from an anonymous source can help provide the

"reasonable suspicion" necessary for a Terry stop. See Alabama v.

White, 496 U.S. 325, 331, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301

(1990). Administrators also received at least some corroboration

when they noted that CB, who was reported by the informant to have

the drugs in his "big old coat," did in fact have such a coat in

his possession when the search was initiated. See United States v.

Gibson, 64 F.3d 617, 623 (11th Cir.1995) (holding that anonymous

tip can be corroborated by verifying that present circumstances,

rather than future acts, are as reported), petition for cert.

filed, No. 95-8439 (Mar. 26, 1996). In the light of the

circumstances, reasonable grounds to search existed; and CB's

Fourth Amendment rights were not violated.

B. Procedural Due Process
 CB also argues that his procedural due process rights were

violated because he was suspended without adequate notice or

hearing. The District Court granted summary judgment on the merits

of this claim. Again, only a "rudimentary" hearing is required for

short-term suspensions. Goss, 419 U.S. at 581, 95 S.Ct. at 740.

Here CB had two opportunities to discuss the issue with

administrators before he was suspended, either one of which more

than satisfied Goss. (CB was in fact represented by counsel at the

second hearing.)4

C. Substantive Due Process

CB claims his substantive due process rights were violated by

the decision to suspend him and then to send him to an "alternative

school." The district court granted summary judgment on the merits

of this claim.

Our holding in McKinney, 20 F.3d at 1560-61, forecloses CB's

substantive due process claim for his suspension and transfer. As

discussed above, McKinney reminded us that executive acts warrant

no substantive due process protection unless the right infringed is

recognized by the Constitution as "fundamental," which is to say

that "our democratic society and its inherent freedoms would be

lost if that right were to be violated." Id. at 1561 (citing

Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198, 99 S.Ct.

4
CB also fails to set out a persuasive procedural due
process claim based on the alleged vagueness of Rule 23
(possession of look-alike substances). See, e.g., Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675, 686, 106 S.Ct. 3159, 3166,
92 L.Ed.2d 549 (1986) (stating that "school disciplinary rules
need not be as detailed as a criminal code which imposes criminal
sanctions"). Rule 23 was sufficiently clear as not to deny CB
the process he was due.
1062, 1064, 59 L.Ed.2d 248 (1979)). CB's suspension and transfer

were both executive acts, see McKinney, 20 F.3d at 1557 n. 9, and

neither abridged a fundamental right. Plyler, supra. Because the

right to an education is state-created, that right can be

restricted as long as adequate procedures are followed. McKinney,

20 F.3d at 1561.5 Thus, what the Supreme Court has identified as

substantive due process was not offended by the suspension and

transfer.

IV. Plaintiffs' Other Motions Below

The district court dismissed Plaintiffs' other pending motions

as moot because he ruled on the summary judgment motion first. In

the light of our holdings expressed above, we decline to review the

merits of these motions.

The judgment of the district court is AFFIRMED.

5
And, although we need not address the issue (because CB has
not alleged a violation of procedural due process based on the
transfer), we doubt CB has a property interest under Georgia law
in attending Greene-Taliaferro instead of the alternative school
to which he was assigned. See generally Doe v. Bagan, 41 F.3d
571, 576 (10th Cir.1994). In Bagan, the court stated,

It is obvious, however, that Doe was not denied his
right to public education. He was only denied his
request to attend the public school of his choice.
Plaintiffs cite no Colorado authority, and we have
found none, indicating that the right to a public
education encompasses a right to choose one's
particular school.

Id. Cf. Zamora v. Pomeroy, 639 F.2d 662, 670 (10th
Cir.1981) (holding that, at least absent showing that
alternative school was "so inferior [to previous school as]
to amount to an expulsion from the educational system," the
plaintiffs "lack the requisite standing to attack the
appellees' actions"). In any event, CB clearly received all
the process that was due.