IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 99-21165
_______________________________
NANCY MOORE and GARRY MOORE,
As Next Friends of Aaron Moore;
Plaintiffs-Counter Defendants-Appellants,
versus
WILLIS INDEPENDENT SCHOOL DISTRICT
and ALAN BEENE,
Defendants-Counter Plaintiffs-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________
December 1, 2000
Before KING, Chief Judge, WIENER, Circuit Judge, and LYNN*,
District Judge.
WIENER, Circuit Judge:
Plaintiffs-Appellants are the parents of Aaron Moore, a minor,
(collectively, “the Moores”) who, they allege, sustained serious
injuries as a result of excessive exercise imposed as punishment by
his middle school gym teacher. They ask us to reverse the district
*
The Hon. Barbara M.G. Lynn, District Judge of the
Northern District of Texas, sitting by designation.
court’s summary judgment dismissal of all their claims. We affirm
the court’s grant of summary judgment for the Moores’ failure to
state a constitutional claim of deprivation of substantive due
process under the Fifth or Fourteenth Amendments to the U.S.
Constitution,1 but we reverse the district court’s exercise of
jurisdiction over the Moores’ supplemental state-law claims and
remand them to be dismissed without prejudice.
I.
FACTS AND PROCEEDINGS
Taken in the light most favorable to the Moores, the facts are
as follows. In February 1997, fourteen-year-old Aaron Moore was an
eighth-grade student at Lynn Lucas Middle School in the Willis
(Texas) Independent School District. Aaron was a student athlete
who had just finished the season playing on the school’s basketball
team and was looking forward to trying out for the track team. He
and approximately eighty other boys were enrolled in an elective
gym class of which Allen2 Beene was one of the teachers. On the
day in question, Beene observed Aaron talking to a classmate during
roll call, a violation of a class rule. As punishment, Beene told
Aaron to do 100 “ups and downs,” also known as squat-thrusts.3
1
U.S. Const. amend. V, XIV, § 1.
2
Beene’s first name was spelled incorrectly in the
pleadings.
3
In an affidavit, Beene described the exercise thus:
To perform an up-down the student starts in the
2
Aaron had not been subjected to similar punishment before, but he
understood that if he stopped during this punishment, he either
would be made to start over or would be sent to the principal’s
office. A classmate counted the 100 repetitions.
Aaron then participated in approximately twenty to twenty-five
minutes of weight lifting required of the gym class that day. He
did not complain to Beene of pain or fatigue, fearing that would
make matters worse. In the following days, however, Aaron was
diagnosed with rhabdomyolysis4 and renal failure; he also developed
esophagitis/gastritis. Aaron was hospitalized and missed three
weeks of school. He continues to experience fatigue, and has been
unable to participate in school sports or physical education class.
Plaintiff-Appellant Nancy Moore, Aaron’s mother, states that
Beene told her the “ups and downs” were a means of punishment
necessary to control middle school students. Mrs. Moore also
states that Beene told her that he had intentionally inflicted pain
on her son, explaining: “With high school kids you can have them
standing position, then squats until he can place
his hands flat on the floor. When the hands have
been placed on the floor the legs are then
extended fully to the rear while the arms remain
straight at the elbows with the torso elevated
above the floor. The legs are then drawn back
under the torso into a squatting position, and the
exercise is completed by returning to a standing
position.
4
Rhabdomyolysis is a degenerative disease of the skeletal
muscle that involves destruction of the muscle tissue, evidenced
by the presence of myoglobin in the urine.
3
do two ups and downs and they remember the next time. With junior
high kids, you have to inflict pain or they don’t remember.” Mrs.
Moore further states that the school district’s athletic director,
Ron Eikenberg, told her that “the coaches at the junior high were
out of control and they did their own thing.”
The Moores filed suit in federal district court against the
school district and Beene under 42 U.S.C. § 1983, alleging
violations of the First, Fifth, and Fourteenth Amendments to the
U.S. Constitution; against the school district under Title IX of
the Education Amendments of 1972, 20 U.S.C. § 1681 (a claim they
later non-suited); and against Beene alone for state-law claims of
negligence and intentional infliction of emotional distress. The
school district and Beene responded with motions to dismiss for
failure to state a claim under Rule 12(b)(6) of the Federal Rules
of Civil Procedure or for summary judgment under Rule 56. The
Moores conceded in their response to the summary judgment motion
that their First Amendment claim should be dismissed, leaving only
their substantive due process and state-law claims to be heard.
The matter was referred to a magistrate judge. She
recommended that the defendants’ motion for summary judgment be
granted as to all claims after concluding that the plaintiffs could
not allege a due process violation and that Beene was entitled to
official immunity from the state-law claims. The magistrate judge
subsequently filed a clarifying memorandum, making the same
recommendation. The district court issued a final order granting
4
the motion for summary judgment, and this appeal followed.
II
ANALYSIS
A. Summary Judgment Standard
This case is on appeal from a dismissal on summary judgment.
Therefore, we review the record de novo, applying the same standard
as the district court.5 A motion for summary judgment is properly
granted only if there is no genuine issue as to any material fact.6
An issue is material if its resolution could affect the outcome of
the action.7 In deciding whether a fact issue has been created, we
must view the facts and the inferences to be drawn therefrom in the
light most favorable to the nonmoving party.8
The standard for summary judgment mirrors that for judgment as
a matter of law.9 Thus, the court must review all of the evidence
in the record, but make no credibility determinations or weigh any
evidence.10 In reviewing all the evidence, the court must disregard
5
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,
380 (5th Cir. 1998).
6
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
7
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
8
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
9
Celotex, 477 U.S. at 323.
10
Reeves v. Sanderson Plumbing Products, Inc., __ U.S. __,
120 S. Ct. 2097, 2102 (2000).
5
all evidence favorable to the moving party that the jury is not
required to believe, and should give credence to the evidence
favoring the nonmoving party as well as to the evidence supporting
the moving party that is uncontradicted and unimpeached.11
B. Substantive Due Process
To state a claim under § 1983, a plaintiff must (1) allege a
violation of a right secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.12 A local
government entity, such as a school district, may be held liable
under § 1983 for constitutional violations committed pursuant to a
governmental policy or custom.13
The Moores cannot meet the initial requirement for stating a
§ 1983 claim against either defendant because under our precedent
the conduct of which they complain is not a constitutional
violation.14 We have held consistently that, as long as the state
provides an adequate remedy, a public school student cannot state
a claim for denial of substantive due process through excessive
11
Id. at 2110.
12
Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525
(5th Cir. 1994).
13
Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658
(1978).
14
See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (noting
that whether the plaintiff has been deprived of a right secured
by the Constitution is a threshold inquiry in a § 1983 claim).
6
corporal punishment, whether it be against the school system,
administrators, or the employee who is alleged to have inflicted
the damage. In Fee v. Herndon,15 we reiterated that “[c]orporal
punishment in public schools ‘is a deprivation of substantive due
process when it is arbitrary, capricious, or wholly unrelated to
the legitimate state goal of maintaining an atmosphere conducive to
learning.’”16 Educators in states that proscribe student
mistreatment and provide a remedy “do not, by definition, act
‘arbitrarily,’ a necessary predicate for substantive due process
relief.”17
We do recognize a student’s liberty interest in maintaining
bodily integrity. For example, we found that right to have been
violated by a teacher’s conduct in Doe v. Taylor.18 But Taylor is
distinguishable from Aaron’s case. Taylor involved the sexual
molestation of a student by her teacher, acts unrelated to any
legitimate state goal. In contrast, this case involves excessive
exercise imposed as punishment to maintain discipline, and
15
900 F.2d 804 (5th Cir. 1990), cert. denied, 498 U.S. 908
(1990).
16
Id. at 808 (citing Woodard v. Los Fresnos Indep. Sch.
Dist., 732 F.2d 1243, 1246 (5th Cir. 1984)).
17
Id.
18
15 F.3d 443 (5th Cir. 1994) (en banc), cert. denied, 513
U.S. 815 (1994); see also Jefferson v. Ysleta Indep. Sch. Dist.,
817 F.2d 303 (5th Cir. 1987) (finding a student’s substantive due
process right to be free from bodily restraint implicated by
allegations that she was tied to a chair for two days as part of
an instructional technique, not for punishment).
7
discipline is clearly a legitimate state goal. It must be
maintained in school classrooms and gymnasiums to create an
atmosphere in which students can learn.
By now, every school teacher and coach must know that
inflicting pain on a student through, inter alia, unreasonably
excessive exercise, violates that student’s constitutional right to
bodily integrity by posing a risk of significant injury. This
right is not implicated, however, when, as in this case, the
conduct complained of is corporal punishment – even unreasonably
excessive corporal punishment – intended as a disciplinary measure.
“Our precedents dictate that injuries sustained incidentally to
corporal punishment, irrespective of the severity of those injuries
or the sensitivity of the student, do not implicate the due process
clause if the forum state affords adequate post-punishment civil or
criminal remedies for the student to vindicate legal
transgressions.”19
If the Moores have an adequate remedy under Texas law for
Aaron’s alleged mistreatment, they cannot state a constitutional
claim and their federal claims must be dismissed. Accordingly, we
must examine the state remedies available to the Moores and the
adequacy of these remedies.
C. Availability and Adequacy of State Remedies
Texas law forbids excessive corporal punishment. Texas Penal
19
Fee, 900 F.2d at 808 (emphasis added).
8
Code § 9.62 immunizes educators against criminal responsibility
when they use non-lethal force against students, but only if they
act reasonably:
§ 9.62. Educator-Student
The use of force, but not deadly force, against a person
is justified:
(1) if the actor is entrusted with the care, supervision,
or administration of the person for a special purpose;
and
(2) when and to the degree the actor reasonably believes
the force is necessary to further the special purpose or
to maintain discipline in a group.
On the civil side, Texas law provides for liability of a school
employee who is negligent or uses excessive force in disciplining
students when such acts result in a student’s bodily injury.20
In Cunningham v. Beavers,21 a paddling case, we concluded that
Texas provides adequate traditional common-law remedies for
20
Section 22.051(a) of the Texas Education Code states:
A professional employee of a school district is
not personally liable for any act that is incident
to or within the scope of the duties of the
employee’s position of employment and that
involves the exercise of judgment or discretion on
the part of the employee, except in circumstances
in which a professional employee uses excessive
force in the discipline of students or negligence
resulting in bodily injury to students. (emphasis
added).
21
858 F.2d 269, 272 (5th Cir. 1988), cert. denied, 489
U.S. 1067 (1989); see also Fee, 900 F.2d at 810 (“We hold only
that since Texas has civil and criminal laws in place to
proscribe educators from abusing their charges, and further
provides adequate post-punishment relief in favor of students, no
substantive due process concerns are implicated because no
arbitrary state action exists.”).
9
students who have been subjected to excessive disciplinary force.
These remedies include the possibility of criminal conviction for
assault22 or injury to a child,23 as well as potential civil recovery
in tort.24 Under our precedent, these provisions of state law bar
the Moores from proving that Aaron’s alleged mistreatment was
arbitrary and thus preclude their prevailing on a substantive due
process claim against the school district or Beene. The district
court dutifully followed this precedent in dismissing the Moores’
constitutional claims as do we in affirming that dismissal.
D. Discovery
In addition to assigning error to the district court’s summary
judgment dismissal of their constitutional and state-law claims,
the Moores complain that the trial court erred in granting summary
judgment without allowing them leave to depose the defendants. We
review a district court’s discovery decisions for abuse of
discretion and will affirm such decisions unless they are arbitrary
or clearly unreasonable.25 The Moores have not shown that the
22
See Barr v. Bernhard, 562 S.W.2d 844, 849 (Tex. 1978);
Harris v. State, 203 S.W. 1089 (Tex. Crim. App. 1918); Hogenson
v. Williams, 542 S.W.2d 456 (Tex. Civ. App.-Texarkana, 1976).
23
See Tex. Penal Code § 22.04, Injury to a Child, Elderly
Individual, or Disabled Individual.
24
See, e.g., Grimes v. Stringer, 957 S.W.2d 865 (Tex.
App.-Tyler 1997, writ denied); Spacek v. Charles, 928 S.W.2d 88
(Tex. App.-Houston [14th Dist.] 1996, writ dismissed w.o.j.).
25
Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1441-42
(5th Cir. 1993).
10
district court abused its discretion. The Moores’ suit had been
pending for fourteen months when the magistrate judge recommended
that the district court grant summary judgment. The Moores make
the conclusional argument that they should have been allowed to
“fully explore the Defendants’ conduct, policy, procedures, and
intentions by taking their depositions,” but do not state what
relevant evidence they expected to uncover with additional
discovery. There is nothing arbitrary or unreasonable about the
court’s ruling on this point.
III.
CONCLUSION
We affirm the dismissal of the § 1983 claims asserted against
both defendants. As this leaves no remaining federal claims
involved in the case, we decline to exercise jurisdiction under 28
U.S.C. § 1367(c)(3) over the supplemental state-law claims. We
therefore reverse the summary judgment of the district court
adverse to the Moores on the remaining state-law claims and remand
those claims to that court for dismissal without prejudice.
AFFIRMED in part, REVERSED in part, and REMANDED.
11
WIENER, Circuit Judge, Specially Concurring:
In recent years, this circuit has become increasingly
isolated in our position that substantive due process cannot be
implicated by injuries that students suffer incidental to
disciplinary corporal punishment as long as the state affords
adequate civil or criminal remedies. I now perceive our isolation
to be total. Given our strict rule of stare decisis, however, this
panel could not invoke that trend to change our disposition of the
Moores’ claims. It nevertheless seems to me that the facts
surrounding Aaron’s alleged injury present a proper occasion for us
to re-examine our rule in light of this trend, regardless of the
possibility that in the end the coach’s actions and the extent and
degree of Aaron’s injuries might be deemed to fall short of a
substantive due process violation.
When the Supreme Court affirmed Ingraham v. Wright,1 a school
paddling case and our leading corporal punishment decision, the
Court ruled that subjecting students to corporal punishment without
prior notice and a hearing did not violate procedural due process.
The Court had limited its grant of certiorari in Ingraham, however,
to two questions: whether there was a procedural due process
violation and whether corporal punishment at school represented
cruel and unusual punishment.2 In so doing, the Court declined to
1
430 U.S. 651 (1977).
2
Id. at 659.
12
review a third question that we had answered in the negative in
Ingraham: Can severe corporal punishment constitute a substantive
due process violation?3
Although it focused on procedural requirements, the Court in
Ingraham did hold that corporal punishment implicates Fourteenth
Amendment liberty interests.4 The Court also observed that “there
can be no deprivation of substantive rights as long as disciplinary
corporal punishment is within the limits of the common-law
privilege.”5
The Supreme Court in Ingraham thus framed the threshold fact
question whether corporal punishment may rise to a substantive due
process violation: Did the corporal punishment imposed exceed the
common-law privilege historically afforded to school authorities
seeking to discipline students? I find more significant that which
the Court did not hold: It did not proclaim that an adequate
remedy provided by state law or procedure constitutes a per se bar
to a student’s ability to state a substantive due process claim
based on excessive corporal punishment. This significance is
heightened by the Supreme Court’s subsequent writing to the effect
that, unlike a procedural due process violation, a substantive due
3
Id. at 659 n.12, 679 n.47.
4
Id. at 674.
5
Id. at 676 (emphasis added).
13
process violation is complete when it occurs,6 making irrelevant
the availability of any post hoc state remedy.
Over the past two decades, we have established a line of panel
opinions, culminating in Fee v. Herndon,7 founded on the part of
our Ingraham decision that was not reviewed by the Supreme Court.
Through these holdings, we have solidly established that, when a
state sets reasonable limits and provides adequate remedies,
corporal punishment cannot constitute arbitrary state action and
therefore cannot support a claim grounded in a violation of
substantive due process. Yet, a careful reading of the cases that
make up this line of decisions reveals that we have never closely
examined the adequacy of those state remedies, instead simply
dismissing § 1983 claims against school districts and individual
defendants alike, regardless of whether they might be immune from
suit. (As a matter of fact, Texas school districts generally do
have state-law governmental immunity from tort claims brought by
6
See, e.g., Zinermon v. Burch, 494 U.S. 113, 125 (1990)
(noting that “the Due Process Clause contains a substantive
component that bars certain arbitrary, wrongful government
actions ‘regardless of the fairness of the procedures used to
implement them.’. . . [T]he constitutional violation actionable
under § 1983 is complete when the wrongful action is taken. A
plaintiff . . . may invoke § 1983 regardless of any state-tort
remedy that might be available to compensate him for the
deprivation of these rights.”) (citations omitted).
7
900 F.2d 804 (5th Cir. 1990); see Cunningham v. Beavers,
858 F.2d 269 (5th Cir. 1988), cert. denied, 489 U.S. 1067 (1989)
(construing Texas law); Woodard v. Los Fresnos Ind. Sch. Dist.,
732 F.2d 1243 (5th Cir. 1984) (Texas law); Coleman v. Franklin
Parish Sch. Bd., 702 F.2d 74 (5th Cir. 1983) (Louisiana law).
14
injured students.8)
In the instant case, the district court concluded that Coach
Beene was immune from tort liability under Texas’s common-law
official immunity.9 To reach that result, the court had to find
that Beene acted reasonably (and thus presumably within the common-
law disciplinary privilege identified by the Supreme Court in
Ingraham, signifying that no constitutional violation occurred).10
We acknowledged in Fee that, as to school corporal punishment cases
in general, “under Cunningham [plaintiffs’] choice of forum may be
restricted to state courts.”11 I submit that, if all defendants in
these cases prove to be immune from liability under Texas law, the
question is presented whether the state really provides a remedy to
injured students at all, much less an adequate one.
8
See, e.g., Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex.
1978) (“The law is well settled in this state that an independent
school district is an agency of the state and, while exercising
governmental functions, is not answerable for its negligence in a
suit sounding in tort.”); Fee, 900 F.2d at 810 n.9 (assuming
without deciding that post-punishment relief is unavailable under
state law against school district, supervisor, and trustees).
9
Government employees are entitled to official immunity
from suit arising from the performance of their discretionary
duties in good faith as long as they act within the scope of
their authority. City of Lancaster v. Chambers, 883 S.W.2d 650,
653 (Tex. 1994).
10
We reversed that finding when we declined to exercise
jurisdiction over the state-law claims. We neither express nor
imply an opinion as to the severity of Aaron’s injuries, the
merits of the Moores’ tort claims, the reasonableness of Beene’s
conduct, his immunity from liability, or any other issues germane
to the Moores’ state-law claims.
11
900 F.2d at 809.
15
No other circuit has followed our lead on the issue of
substantive due process in school corporal punishment cases.
Relying on Ingraham and other Supreme Court decisions, the Third,12
Fourth,13 Sixth,14 Eighth,15 Tenth,16 and —— most recently —— the
12
Metzger v. Osbeck, 841 F.2d 518, 520 (3d Cir. 1988) (“A
decision to discipline a student, if accomplished through
excessive force and appreciable physical pain, may constitute an
invasion of the child’s Fifth Amendment liberty interest in his
personal security and a violation of substantive due process
prohibited by the Fourteenth Amendment.”).
13
Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)
(concluding that the “right to ultimate bodily security – the
most fundamental aspect of personal privacy – is unmistakably
established in our constitutional decisions as an attribute of
the ordered liberty that is the concern of substantive due
process. Numerous cases in a variety of contexts recognize it as
a last line of defense against those literally outrageous abuses
of official power whose very variety makes formulation of a more
precise standard impossible. . . . [W]e simply do not see how we
can fail also to recognize it in public school children under the
disciplinary control of public school teachers.”).
14
Saylor v. Bd. of Educ. of Harlan County, Ky., 118 F.3d
507, 514 (6th Cir. 1997).
15
London v. Directors of DeWitt Pub. Sch., 194 F.3d 873,
876-77 (8th Cir. 1999); Wise v. Pea Ridge Sch. Dist., 855 F.2d
560, 564 (8th Cir. 1988) (stating that “at some point the
administration of corporal punishment may violate a student's
liberty interest in his personal security and substantive due
process rights”).
16
Garcia v. Miera, 817 F.2d 650, 654 (10th Cir. 1987),
cert. denied, 485 U.S. 959 (1988) (“Although Ingraham makes clear
that ordinary corporal punishment violates no substantive due
process rights of school children, by acknowledging that corporal
punishment implicates a fundamental liberty interest protected by
the Due Process Clause, we believe that opinion clearly signaled
that, at some degree of excessiveness or cruelty, the meting out
such punishment violates the substantive due process rights of
the pupil.”).
16
Eleventh17 circuits have determined that excessive corporal
punishment can indeed violate a student’s substantive due process
rights, irrespective of the availability of an adequate state law
remedy. Additionally, the Ninth Circuit has held that students are
protected from excessive force under either the Fourth Amendment or
the Due Process Clause,18 and the Seventh Circuit has held that
unreasonable liberty restrictions or corporal punishment could
violate a public school student’s Fourth Amendment rights.19
Very recently, in Neal v. Fulton County Bd. of Educ.,20 the
Eleventh Circuit held that a student who was blinded in one eye
when his football coach punished him for fighting by hitting him
with a weight lock, stated a claim for a substantive due process
violation through excessive corporal punishment. In Neal the
Eleventh Circuit wrote that “[t]he vast majority of Circuits have
concluded that substantive due process principles established by
17
Neal v. Fulton County Bd. of Educ., __ F.3d __, 2000 WL
1480393 (11th Cir. 2000).
18
P.B. v. Koch, 96 F.3d 1298, 1303 n.4, 1304 (9th Cir.
1996) (stating that principal who physically assaulted students
violated their clearly established constitutional rights, but
noting that “for purposes of resolving this qualified immunity
appeal, we need not and do not resolve the question of whether
the Fourth Amendment, rather than the Due Process Clause,
protects a student from the use of excessive force by a school
official.”).
19
Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1014-16
(7th Cir. 1995) (evaluating corporal punishment under Fourth
Amendment seizure standard and rejecting plaintiff student’s
theory of recovery under both Fourth and Fourteenth Amendments).
20
2000 WL 1480393.
17
the Supreme Court protect a student from corporal punishment that
is intentional, obviously excessive, and creates a foreseeable risk
of serious injury.”21 The Neal court construed its binding
precedent —— specifically, the “old” Fifth Circuit’s decision in
Ingraham22 —— and concluded that this court “did not say that under
no set of circumstances could corporal punishment rise to the level
of a constitutional violation.”23 The Neal court went on to
distinguish Ingraham by noting that, in addition to having found
the concept of corporal punishment neither arbitrary nor unrelated
to legitimate educational goals, the old Fifth had examined an
existing school policy and declined to assess individual
punishments administered under that policy.
The Eleventh Circuit concluded that the Supreme Court’s
decision in Ingraham “strongly suggested a favorable view” of the
position that excessive corporal punishment can violate substantive
due process rights.24 Through Neal, the Eleventh Circuit “join[ed]
the vast majority of Circuits in confirming that excessive corporal
punishment, at least where not administered in conformity with a
valid school policy authorizing corporal punishment as in Ingraham,
may be actionable under the Due Process Clause when it is
21
Id. at *1.
22
525 F.2d 909, 916-17 (5th Cir. 1976) (en banc).
23
Neal, 2000 WL 1480393, at *3.
24
Id. at *4.
18
tantamount to arbitrary, egregious, and conscience-shocking
behavior.”25
It now seems clear to me that in Fee we placed too much
reliance on the mere existence of putative state-law remedies when
we answered in the negative the question “whether the federal
Constitution independently shields public school students from
excessive discipline.”26 The notion that no student injury
inflicted under the banner of discipline —— regardless of how
shocking or severe —— can be the result of arbitrary action as long
as relevant state laws are in place, flies in the face of the
constitutional concept of substantive due process as viewed by at
least seven other federal appellate courts that have addressed this
question. Conversely, I find no other circuit in accord with our
position as exemplified by Fee.
Reluctant as each of us is to have the federal courts become
any more involved than we must in such local concerns as school
discipline —— and rightly so —— I respectfully but earnestly
suggest that now is the time for this court, sitting en banc, to
re-examine its position. Can we be the only circuit that is “in
step” and all the rest out of step? We should not demur in our own
housekeeping chores and merely leave to the Supreme Court the job
of eliminating the existing split between this one circuit and all
25
Id. at *5.
26
Fee, 900 F.2d at 808.
19
the rest that have announced an opposite position on the subject.
20