Dunn v. Fairfield Community High School Dist. No. 225

• Decision Date: 15 October 1998
• Docket Number: No. 98-1234,98-1234
• Citation: 158 F.3d 962
• Parties: 130 Ed. Law Rep. 105 Shaun DUNN and Bill McCullough, Plaintiffs-Appellants, v. FAIRFIELD COMMUNITY HIGH SCHOOL DISTRICT NO. 225, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 962

158 F.3d 962

130 Ed. Law Rep. 105

Shaun DUNN and Bill McCullough, Plaintiffs-Appellants, v. FAIRFIELD COMMUNITY HIGH SCHOOL DISTRICT NO. 225, Defendant-Appellee.

No. 98-1234.

United States Court of Appeals Seventh Circuit.

Argued Sept. 17, 1998.

Decided Oct. 15, 1998.

Alan C. Downen (argued), McLeansboro, IL, for Plaintiff-Appellant.

John B. Drummy, Eric D. Johnson (argued), Kightlinger & Gray, Indianapolis, IN, Timothy A. Klingler, Kightlinger & Gray, Evansville, IN, for Defendant-Appellee.

Before POSNER, Chief Judge, and CUMMINGS and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Shaun Dunn and Bill McCullough were both budding musicians who participated as guitar players in the high school band program at Fairfield Community High School, operated by the defendant Fairfield Community High School District No. 225. (We refer to them both as "Fairfield," as there is no distinction important to this appeal.) Fairfield prohibited its band members from departing from the planned musical program during band performances, and it specifically forbade guitar solos during the performances. In direct defiance of those rules and their teacher's explicit orders, Dunn and McCullough (along with two other students) played two unauthorized guitar pieces (instrumentals, with no words) at a February 10, 1995, band program. In due course, the discipline they received for this infraction caused them both to receive an "F" for the band course, and that "F" prevented McCullough from graduating with honors. This lawsuit under 42 U.S.C. §§ 1983 and 1988 followed. Dunn and McCullough have now appealed from the district court's decision to grant summary judgment for Fairfield. While as a practical matter the school may have overreacted to the spectacle of two young musicians playing the "wrong" pieces, we conclude that its actions violated no right cognizable under the federal civil rights statutes, and we therefore affirm the district court.

I

There is little more to the underlying story than the facts we have just outlined. During the 1995-96 school year, Dunn and McCullough were students at Fairfield and were enrolled in the Band class. One class requirement was to perform at various school-wide events, including home basketball games. Fairfield's grading policy for the Band class assigned a certain number of points to the different components of the course. That policy was prepared by the band instructor, filed with the school principal, and disseminated to each student in the class. It read as follows:

GRADING POLICY:

Every rehearsal, concert, etc. will be assigned a point value. Points will be awarded for presence at the event, appropriate dress, appropriate conduct, etc. Additionally, there will be at least two playing evaluations per quarter for points. The point scale will work as follows:

                            Daily Rehearsal:            5 points
                            Performances:              20 points
                            Playing Evaluations:       25 points
                

The policy went on to warn that conduct at performances had to be professional and that conduct not meeting that standard would give rise to dire consequences:

Your conduct at performances is expected to be of the highest standard. We want to look, sound and be professional at all times--anything less is unacceptable. Performance conduct that is not of the highest standard will be dealt with severely. Possible disciplinary actions range from loss of all points for the performance to lowering of the final grade to dismissal from the band.

In the face of both these general warnings and more specific admonishments from both School Principal Rena Talbert and Band Director Charlotte McGill, Dunn and McCullough decided to play their unauthorized guitar songs at the February 10, 1995, band performance during a home basketball game. As they were doing so, McGill was shouting at them to stop, but they ignored her. Dunn and McCullough both testified in their depositions that they realized the songs were verboten and that they expected some form of punishment. McCullough explained the action as a form of protest against the school's rumored decision to remove guitars from the band.

When punishment came, it was far more severe than either student had anticipated. It began on February 13th with McGill's decision not to award them any performance points for the February 10 event. Matters did not stop there, however. McGill evidently referred the matter to Principal Talbert, who decided that Dunn and McCullough had been guilty of disrespect to faculty and staff, which was a Classification III, subparagraph A6 violation of school rules. (Fairfield classified student misconduct into three categories, with Classification I being the most serious and Classification III the least. A student committing a Classification III offense could be removed from class for either academic misconduct (e.g., failure to complete homework) or nonacademic misconduct (e.g., possession of tobacco products).) As a penalty, Talbert decided to remove the two students from Band class for the remainder of the school year and to prohibit them from attending any more home basketball games for that year.

Because of the way the grading policy operated for Band class, this proved to be an exceptionally severe penalty. The prohibition against attending class meant that Dunn and McCullough could not earn any class points for the rest of the year, nor could they earn performance points or evaluation points. Not surprisingly, the number of points they had earned up until the ill-fated February 10 performance was not enough to carry the day for them, and so both received final grades of "F" for the course. Both students graduated, although as we noted above, the "F" in Band prevented McCullough from doing so with honors, and the briefs inform us that both are now attending the Atlanta Institute of Music and hope eventually to have a career in music.

II

The students' complaint alleged that Fairfield had violated their constitutional rights in two ways: first, that it violated their "right to substantive due process ... by imposing disciplinary measures unrelated to academic conduct and ... outside the parameters and intent of the Illinois School Code and [Fairfield's] disciplinary policy," and second, that it violated their Eighth Amendment right to be free of cruel and unusual punishment when it imposed the disciplinary measures. In essence, they claimed that Fairfield had transgressed the Constitution when it imposed the drastic measure of expulsion from class, knowing that it would inevitably lead to a failing grade in the course, for one single disciplinary incident. The district court rejected the students' contentions, noting also that they had failed to address the Eighth Amendment component of their case in their summary judgment motion. (They have abandoned this argument on appeal; we therefore do not consider it further.) The disciplinary action in question, the court concluded, bore a rational relation to the school's interest in maintaining order and providing an education. The court also commented in a footnote that if the plaintiffs were to prevail, "[a]lmost every disciplinary action could become a federal case." The court then considered the students' claim that Fairfield had violated Illinois state law. Because the complaint did not invoke the court's supplemental jurisdiction under 28 U.S.C. § 1367, the court expressed doubt that the claim was properly before it. In any event, the court decided that the undisputed facts showed that no violation of Illinois law had taken place, citing 105 ILCS 5/24-24, 5/10-20.9a.

III

Even though the students are entitled to this court's de novo review of the summary judgment for Fairfield, this generous standard cannot salvage their case. The fundamental flaw in their theory of the case arises from their failure to appreciate the difference between the procedural protections afforded by the Fourteenth Amendment against state deprivations and the far more limited substantive standards that Amendment imposes on state actors. If this had been a case (as it is not) in which Dunn and McCullough had complained that Fairfield threw them out of Band class and effectively condemned them to an "F" in the course without giving them some kind of notice and a hearing, we would delve into the nature of the property interest Illinois law creates in a public education. Assuming a protectible interest exists (as it undoubtedly does, see Osteen v. Henley, 13 F.3d 221, 224-26 (7th Cir.1993); Betts v. Board of Education of the City of Chicago, 466 F.2d 629, 633 (7th Cir.1972); Gorman v. University of Rhode Island, 837 F.2d 7, 12 (1st Cir.1988); cf. Goss v. Lopez, 419 U.S. 565, 574-75, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)), we would then assess Fairfield's procedures under the standard framework described in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

But that is not the students' claim. Instead, they assert that the federal Constitution places substantive restrictions on the type of disciplinary measures public school districts may use for conceded violations of rules of student conduct. At some extreme, that is certainly true; the question here is where the outer boundaries lie. The students seem to think that federal constitutional protection is co-extensive with the right recognized under Illinois law to a free public education through the end of high school. The Supreme Court's recent decision in County of Sacramento v. Lewis, --- U.S. ----, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998),...