372 F.Supp. 1279 (S.D.Ohio 1973), Civ. A. 71-67, Lopez v. Williams

Docket Nº:Civ. A. 71-67
Citation:372 F.Supp. 1279
Party Name:Lopez v. Williams
Case Date:September 12, 1973
Court:United States District Courts, 6th Circuit, Southern District of Ohio
 
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Page 1279

372 F.Supp. 1279 (S.D.Ohio 1973)

Eileen LOPEZ et al., Plaintiffs,

v.

Herbert M. WILLIAMS et al., Defendants.

Civ. A. No. 71-67.

United States District Court, S.D. Ohio, Eastern Division.

Sept. 12, 1973

Probable Jurisdiction Noted Feb. 19, 1974, See 94 S.Ct. 1405

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Peter D. Roos, Eric E. Van Loon, Cambridge, Mass., of counsel, Denis J. Murphy, Kenneth C. Curtin, Columbus, Ohio, for plaintiffs.

James Hughes, City Atty., Thomas A. Bustin, Asst. City Atty., Columbus, Ohio for defendants.

Before PECK, Circuit Judge, KINNEARY, Chief District Judge and RUBIN, District Judge.

OPINION

KINNEARY, Chief District Judge.

This matter is before the Court on plaintiffs' motion for judgment on the pleadings under the provisions of Rule 12(c) of the Federal Rules of Civil Procedure.

This is an action for injunctive and declaratory relief arising out of the suspension of the nine plaintiffs from Columbus Public School System in February and March, 1971.

A Three-Judge Court was convened under the provisions of Title 28, United States Code, Section 2281. Calloway v. Briggs, 443 F.2d 296 (6th Cir. 1971).

The Court has jurisdiction under the provisions of Title 28, United States Code, §§ 1343(3), 2201 and 2202. Plaintiffs' claims for relief are alleged under the provisions of Title 42, United States Code, Section 1983.

Plaintiffs challenge the constitutionality of § 3313.66 of the Ohio Revised Code and § 1010.04 of the Administrative Guide of the Columbus Public Schools, and the Columbus Public School Policy Statement on Discipline. They allege two claims for relief. First, suspension without the minimal due process safeguards of notice and prior hearing is violative of the Fourteenth Amendment to the Constitution of the United States because it denies students an education, an important public right, without due process of law. Second, the statute and regulation are unconstitutionally vague and overbroad because they provide no ascertainable standard for acceptable conduct.

Upon the consent of all parties and the other members of the panel, the factual issues in this case were tried before the Honorable Joseph P. Kinneary, Chief Judge, United States District Court for the Southern District of Ohio. See Rosado v. Wyman, 397 U.S. 397, 403, 90 S.Ct. 1207, 25 L.Ed.2d 422 (1970) who made the following findings of fact which are adopted fully by the Three-Judge District Court.

FINDINGS OF FACT

The plaintiffs presented evidence relating to the dismissals from school of Dwight Lopez, Betty Jane Crome, Susan Cooper, and Deborah Fox. In addition, Phillip Fulton, principal of Marion-Franklin High School during the 1970-

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1971 school year testified by deposition concerning the suspensions from Marion-Franklin High School of plaintiffs Tyrone Washington, Clarence Byars, Rudolph Sutton and Bruce Harris. There was no evidence presented to the Court concerning the suspension from the Columbus Public Shcool System of the plaintiff Carl Smith.

Plaintiffs seek to maintain a class action. Phillip Fulton, principal of Marion-Franklin High School in February-April, 1971, testified on deposition that on or about March 15, 1971 fourteen students were recommended for suspension from his school. Dwight Lopez, a student at Central High School testified that he personally knew more than 75 students who were suspended from Central High School on February 26, 1971. Doctor John Ellis, Superintendent of Columbus Public Schools, testified on deposition that the Department of Pupil Personnel keeps some records on suspensions, but he did not have them available at the time of his deposition. No other evidence relating to the number of students suspended in February-April, 1971 was received by the Court.

Section 3313.66, Ohio Revised Code provides, in relevant part, that:

. . . the principal of a public school may suspend a pupil from school for not more than ten days . . .. Such . . . principal shall within twenty-four hours after the time of expulsion or suspension, notify the parent or guardian of the child, and the clerk of the board of education in writing of such expulsion or suspension including the reasons therefor. The pupil or the parent, or guardian, or custodian of a pupil so expelled may appeal such action to the board of education at any meeting of the board and shall be permitted to be heard against the expulsion. At the request of the pupil, or his parent, guardian, custodian, or attorney, the board may hold the hearing in executive session but may act upon the expulsion only at a public meeting. The board may, by a majority vote of its full membership, reinstate such pupil. No pupil shall be suspended or expelled from any school beyond the current semester.

Section 1010.04 of the Administrative Guide to the Columbus Public Schools (January 2, 1973) provides that:

Pupils may be suspended or expelled from school in accordance with the provisions of § 3313.66 of the Revised Code.

The parties introduced into evidence three memorandums from the Department of Pupil Personnel of the Columbus Public Schools on the subject of suspension of students from school. The earliest memorandum is dated August 16, 1971. 1 None of the memorandums

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were in effect at the time plaintiffs were suspended from the Columbus Public Schools.

Phillip Fulton, principal of Marion-Franklin High School during the 1970-1971 academic year, testified that the following procedure was in effect at the time of the suspensions which are the basis of the present action:

Basically, the assistant principals are the disciplinarians. They held the discipline responsibility in a given school. The majority of times, the incident does not occur with an administrator. It occurs in a situation where a teacher refers it to administration . . ..

The teacher would send to the office in written form, it was to be written. We had a form that we followed indicating the incident, what had happened, and this was brought to the office at the time the student was brought to the office. The administrator then would go over the incident as written or as dictated by the teacher with the student. The student then would be given an opportunity, if the student didn't agree with the way it happened, then he would send back for the teacher and bring the teacher in who if we have some reason to see if there is a discrepancy. We then asked the teacher to interpret what he has written for us. If there is a large discrepancy where a student would deny it and the teacher would confirm it, then we would react upon this information according to what the teacher tells us. Then if it is deemed that there is a suspension, you follow the procedure that I have already formulated. You call the parent first and then send the student home. until their school day is completed. keep the student until his normal school day is over. So they are retained until their school day is completed. The parent, if he can be contacted in the meantime, then would be informed of the situation. This would be followed then by a letter stating again that we would discuss but including also the time of the appointment, if it has been prearranged. If not, the parent may get in tomorrow. They might say that they can get in tonight and maybe have time to see the administrator and that would be set up at that time . . ..

. . . .

(At the conference) the problem, the individual, we talk about their school record. We get their entire school record. We talk about their academic problems, if they exist. We talk about their potential. We talk about their goals. It is a conference to remedy the problem and you try to find a solution so that the student is successful in his schooling . . ..

(It is not conference to verify the facts supporting the suspension.) It is to communicate with the parent, as part of my responsibility, the problem that exists and ask for their help. We inform them and then find out what directions we can take that will eliminate the need for further problems.

On July 10, 1973, the Department of Pupil Personnel of the Columbus Public Schools forwarded to all principals a memorandum containing guidelines for the suspension of students. The memorandum contained the following guidelines:

A. Grounds for suspension.

1. Violation of any City of Columbus Ordinance or state or federal law; and

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2. Violation of written school rules of Board of Education regulations; and 3. Activities which interfere with or threaten the orderly functioning of school activities including classrooms, extra-curricular and athletic activities; and 4. Any activity which is grounds for expulsion. This shall include, but not be limited to, assault on a teacher, arson, or destruction of school property, active leadership in school disruption and direct refusal to follow a direct order from an administrator in time of school tension.

B. Suspension procedures.

1. Whenever an incident occurs which may lead to a suspension, the principal or assistant principal shall investigate the nature of the alleged offense before commencing suspension procedures. Unless the pupil is unavailable or unwilling to discuss the incident with the principal, this investigation shall include a discussion with the pupil so that the pupil may be given an opportunity to be heard with respect to the alleged offense. 2. If the principal determines that grounds for suspension do exist, he shall notify the pupil of the exact reason and length of the suspension and further inform the pupil that the suspension means be must stay off school property and away from school-sponsored activities during the entire term of the suspension. 3...

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