769 F.2d 1323 (8th Cir. 1985), 84-1914, Horton v. Marshall Public Schools

Docket Nº:84-1914.
Citation:769 F.2d 1323
Party Name:Buford HORTON and Laretta Horton, Husband and Wife, and Phillip Allen Roberson, By and Through His Guardians and Next Friends, Buford Horton and Laretta Horton; Janie A. Williams and Rhonda Williams, By and Through Janie Williams, Next Friend, Appellants, v. MARSHALL PUBLIC SCHOOLS, Herbert Cleek, Individually and in His Official Capacity as Superi
Case Date:August 09, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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769 F.2d 1323 (8th Cir. 1985)

Buford HORTON and Laretta Horton, Husband and Wife, and

Phillip Allen Roberson, By and Through His Guardians and

Next Friends, Buford Horton and Laretta Horton; Janie A.

Williams and Rhonda Williams, By and Through Janie Williams,

Next Friend, Appellants,

v.

MARSHALL PUBLIC SCHOOLS, Herbert Cleek, Individually and in

His Official Capacity as Superintendent of Marshall Public

Schools; Spence Holder, Individually and in His Capacity as

Principal of Marshall Public School; Coy England, Cecil Ray

Jenning, Jr., Bob Blare, James Hubbard, and Melvin Evans,

Individually and in their Respective Official Capacities as

Members and Directors of the School Board of the Marshall

School District, Appellees.

No. 84-1914.

United States Court of Appeals, Eighth Circuit

August 9, 1985

Submitted Jan. 15, 1985.

Opinion on Denial of Rehearing En Banc Oct. 17, 1985.

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Marcia McIvor (argued) Fayetteville, Ark., for appellants.

W. Paul Blume (argued) Little Rock, Ark., for appellees.

Before HEANEY, ROSS, and McMILLIAN, Circuit Judges.

ROSS, Circuit Judge.

The plaintiffs in this case challenged the facial constitutionality of the domicile requirement embodied in ARK.STAT.ANN. Sec. 80-1501 (Supp.1983) as it relates to minor children who wish to attend public school in Arkansas. This statute provides as follows:

The public schools of any school district in this State shall be open and free through completion of the secondary program, to all persons between the ages of six (6) and twenty-one (21) years who are domiciled in the district or, in the case of minors, whose parents or legal guardians are domiciled in the district, or to all persons between these ages who have been legally transferred to the district for education purposes.

ARK.STAT.ANN. Sec. 80-1501 (Supp.1983) (emphasis added). The plaintiffs also challenged the constitutionality of the Marshall Public School District's application of Sec. 80-1501 to exclude plaintiffs Phillip Roberson (age seventeen) and Rhonda Williams (age fifteen) from attending school in the Marshall school district during the 1982-83 school year. Both children lived in the Marshall school district but were excluded from school because they were minors and did not have a parent or legal guardian living in the district. Finally, the plaintiffs alleged that the Marshall Public School District failed to provide Phillip and Rhonda with procedural due process when it excluded them from school.

After a bench trial, the district court found no constitutional infirmity in either the statute or in the exclusion of Phillip and Rhonda from school, Horton v. Marshall Public Schools, 589 F.Supp. 95 (W.D.Ark.1984). The plaintiffs now appeal. We find that the Marshall Public School District's

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application of Sec. 80-1501 violated the equal protection and due process clauses and accordingly, reverse and remand.

FACTS

Phillip Roberson moved to Marshall on September 13, 1982, to live with his mother and his aunt and uncle--Laretta and Buford Horton. Phillip's parents are divorced. Previously, Phillip had lived in Missouri with his father. Due to economic and domestic problems, however, Phillip's father had become unable to provide a suitable home for him.

After the move to Marshall, Phillip enrolled in the eleventh grade at Marshall High School. Sometime later his mother moved to Missouri, but left Phillip with the Hortons.

Spence Holder, the principal of Marshall High School, questioned Phillip on January 4, 1983, and discovered that Phillip's mother had left Marshall. Holder then informed Phillip that he would no longer be able to attend school in Marshall, since he did not have a parent or legal guardian living in the district.

Phillip's name was officially removed from the school rolls on January 7, 1983. Subsequently, on February 11, 1983, Phillip was readmitted to school on the basis that his aunt and uncle had initiated guardianship proceedings in order to be named his legal guardians.

In Rhonda William's case, the testimony established that Rhonda moved to Marshall on about April 4, 1983, to live with her aunt and uncle--Janie and Leo Williams. Previously, Rhonda had lived with her parents in Alabama. Due to her father's drinking problem, however, her mother had decided it was not safe for Rhonda at home.

On April 6, 1983, Rhonda's aunt took Rhonda to Marshall High School to enroll her in the ninth grade. Spence Holder informed Rhonda's aunt that Rhonda could not be admitted to school unless a legal guardianship was obtained, since Rhonda's parents were not living in the Marshall school district.

Rhonda's aunt investigated the possibility of becoming Rhonda's legal guardian, but never initiated a guardianship proceeding because Rhonda's mother refused to consent to a guardianship. Consequently, Rhonda was never admitted to Marshall High School. She was forced to repeat the ninth grade, in another school district, the following year.

On April 20, 1983, Phillip and his aunt and uncle, Laretta and Buford Horton, filed this action pursuant to 42 U.S.C. Sec. 1983. The complainants sought Phillip's reinstatement as a student in good standing, 1 a declarative judgment that ARK.STAT.ANN. Sec. 80-1501 (Supp.1983), and the Marshall Public School District's policy, adopted pursuant to Sec. 80-1501, of denying admission to minor children who do not have a parent or legal guardian living in its school district, violated the due process and equal protection clauses, and damages. Subsequently, Rhonda and her aunt, Janie Williams, intervened and filed a complaint seeking relief similar to that sought by Phillip and the Hortons. 2

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DISCUSSION

A. Facial Constitutionality of Sec. 80-1501.

In finding Sec. 80-1501 constitutional, the district court dealt solely with the issue of whether the statute's use of the term "domicile", as opposed to the term "residence", made the statute unconstitutional. 3 First, the court determined that under Arkansas law the term "domicile" for purposes of admission to public schools means residence accompanied by a "present intention to remain." Horton v. Marshall Public Schools, supra, 589 F.Supp. at 102. The court then observed that in Martinez v. Bynum, 461 U.S. 321, 331, 103 S.Ct. 1838, 1844, 75 L.Ed.2d 879 (1983), the Supreme Court stated: "at the very least, a school district generally would be justified in requiring school-age children or their parents to satisfy the traditional, basic residence criteria--i.e., to live in the district with a bona fide intention of remaining there--before it treated them as residents", (emphasis added, footnote omitted), for purposes of admission to public schools. Since Sec. 80-1501, as interpreted by the district court, used this same standard, the court concluded that the statute was free from constitutional concerns.

On appeal, the parties do not contest the district court's finding regarding the "domicile" issue. Instead, appellants argue that Sec. 80-1501 is unconstitutional because it denies minor children admission to public school in a particular school district unless they have a parent or legal guardian living in that school district.

Both parties fail to discuss the fact that the statute challenged in this case, Sec. 80-1501 (Supp.1983), was repealed by an Act passed in Arkansas' 1983 legislative session. 1983 Ark. Acts 60. This repeal became effective on February 8, 1984--one day after the February 7, 1984 trial and approximately three and one-half months before the district court entered its judgment on June 1, 1984. The repealed Sec. 80-1501 (Supp.1983) was replaced by a statute which reads as follows:

The public schools of any school district in this State shall be open and free through completion of the secondary program to all persons between the ages of five (5) and twenty-one (21) years whose parents or legal guardians are domiciled in the district and to all persons between those ages who have been legally transferred to the district for education purposes. Any person eighteen (18) years of age or older may establish a domicile separate and apart from his or her parents or guardians for school attendance purposes.

ARK.STAT.ANN. Sec. 80-1501 (1984 Interim Supp.) (emphasis added).

The plaintiffs have never moved to amend their pleadings to challenge the new Sec. 80-1501. Further, it does not appear that the parties adequately informed the district court of the change in Sec. 80-1501, as the district court opinion cites the repealed Sec. 80-1501 as the statute at issue. Horton v. Marshall Public Schools, supra, 589 F.Supp. at 99 n. 5. Thus, the issue of the constitutionality of Sec. 80-1501 (1984 Interim Supp.) was neither raised in the

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pleadings nor tried by the consent of the parties. See FED.R.CIV.P. 15(a), (b).

Due to the repeal of Sec. 80-1501 (Supp.1983), the question of that statute's facial constitutionality was moot even before the district court rendered its judgment, and will not be considered by this court. The question of the facial constitutionality of the new statute, Sec. 80-1501 (1984 Interim Supp.), is also not properly before us due to plaintiffs' failure to move to amend their pleadings to challenge the new Sec. 80-1501.

We are unable to ignore plaintiffs' failure to move to amend because the language of the two versions of Sec. 80-1501 differ in respect to a critical question involved in this case: whether minor children are actually precluded from attending school unless they have a parent or legal guardian "domiciled" in the particular school district they wish to attend. See Broadrick v. Oklahoma, 413 U.S. 601, 618 n...

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