Donovan v. Ritchie

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.

-2-

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

-3-

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

-4-

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

-5-

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

-6-

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'

-7-

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

-8-

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

-9-

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.

-10-

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.

-11-