Strickland v. Inlow

ON PETITION FOR REHEARING

MEHAFFY, Chief Judge,

joined by STEPHENSON and WEBSTER, Circuit Judges, dissenting from denial of the petition for rehearing en banc.

The appellees in this case have filed a petition pursuant to Fed.R.App.P. 40 for a rehearing with suggestion for a rehearing en banc. The Arkansas School Boards Association has joined as amicus curiae in support of the appellees’ petition. After an examination of the panel’s opinion in this case and of the above-mentioned petitions I voted to grant a rehearing en banc. Although a majority of the active judges of this court voted to deny appellees’ petition, I feel compelled to respectfully dissent from the denial of the petition for rehearing en banc.

My principal disagreement with the panel's opinion involves its use of substantive due process as the basis for reversal. I fully recognize that a public high school student has a very strong interest in his or her education. I also recognize that the student’s interest in public education enjoys very important procedural and substantive federal constitutional protection from certain types of unwarranted state action. I cannot *192agree, however, with the panel’s conclusion that the due process clause of the fourteenth amendment empowers this or any other federal court to review every public school disciplinary action on the basis of sufficiency of the evidence. Instead, I am firmly convinced that the substantive reach of the due process clause on the public school campus is limited to the protection of specifically identifiable federal constitutional rights.

This is not a case where the school board has invaded federally protected areas of speech, association, religion, or equality of race or sex. Nor is this a ease where the procedure accorded the students was inadequate, unreasonable, or unfair. Instead, as the panel itself concludes, this is a case where the school board had established a reasonable rule, the students had notice of the rule, the students by their own admission had violated the rule, and, after full procedural protection was afforded, the rule was enforced. Under such circumstances I fail to perceive any federal constitutional question in appellants’ attack.

I am, of course, aware that “substantive due process” has in the past been used without regard to any specific constitutional safeguard to attack a wide variety of state action. E. g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905); Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915). But I thought the federal judiciary had long since rejected such a freewheeling, use of “substantive due process” because it inevitably had led to an unwarranted invasion of the duties and responsibilities of state and local governments. E. g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). None of the cases cited by the panel supports such an unfettered reading of the due process clause; instead, all of the cases involved attacks either on the procedure accorded or on an alleged invasion of some specifically protected right such as free speech. I fear that the panel’s opinion now places every federal court, at least in this circuit, in the position of serving as a board of appeal for every disciplined public school student who feels that his punishment was too severe or that the school board’s decision was not supported by substantial evidence. I feel that this function is one that is the sole responsibility of the state and local governments, which in this case have long provided an appropriate judicial remedy. E. g., Douglas v. Campbell, 89 Ark. 254, 116 S.W. 211 (1909).