Newsome v. Batavia Local School Dist.

• Citation: 842 F.2d 920
• Decision Date: 30 March 1988
• Docket Number: No. 87-3091,87-3091
• Parties: 45 Ed. Law Rep. 1037 Arthur Nickolas NEWSOME, et al., Plaintiffs-Appellants, v. BATAVIA LOCAL SCHOOL DISTRICT, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 920

842 F.2d 920

45 Ed. Law Rep. 1037

Arthur Nickolas NEWSOME, et al., Plaintiffs-Appellants, v. BATAVIA LOCAL SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 87-3091.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 7, 1987.

Decided March 30, 1988.

R. Gregory Park, Lead Counsel (argued), Lisa E. O'Rear, Legal Aid Soc. of Clermont Co., Batavia, Ohio, for plaintiffs-appellants.

William J. Ennis (argued), Cincinnati, Ohio, for Batavia Local School Dist.

Before JONES and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

This is an appeal from an order of the District Court for the Southern District of Ohio denying plaintiff-appellant Arthur Newsome's motion for a temporary restraining order and a preliminary injunction and dismissing his entire case on the merits. On appeal, Newsome argues that the district court erred in holding that the procedures employed by the defendant-appellee Batavia School District in expelling him from school did not violate his right to procedural due process of law under the fourteenth amendment. The procedural defects alleged by Newsome involve the denial of his request to cross-examine the witnesses against him, the denial of his right to an impartial tribunal, and the consideration, by that tribunal, of evidence not made available to Newsome. We determine, in the first instance, that Newsome lacks standing for some of the relief he seeks. On the merits, we conclude that, while Newsome's right to procedural due process was not violated by the school district's denial of his request to cross-examine the witnesses against him nor by the composition of the hearing panel, Newsome was deprived of due process by the panel's consideration of evidence of which he was not apprised.

I.

Upon filing of this complaint in the district court, Newsome was a sixteen-year-old junior at Batavia High School in Batavia, Ohio. On November 3, 1986, Newsome was summoned to the office of the principal, Daniel Swart, and accused of possessing and offering a marijuana cigarette for sale on high school property. Newsome denied the charges and asked the source of the accusations. The principal then informed him that the information had been obtained through interviews with two students but refused to identify them.

On November 6, 1986, Newsome was informed by a school representative that the principal intended to suspend him for ten days based on his alleged possession and attempted sale of marijuana.

On November 10, 1986, a suspension hearing was held before Batavia School Superintendent James Fite. Newsome, his mother, Don Schlunk of the Clermont County Juvenile Court, and the principal were all present. The principal recounted the substance of the student accusations upon which Newsome's proposed suspension was based. At no time were the names of the student accusers disclosed. Apparently, at some point, the superintendent privately interviewed the two students.

The hearing was continued to November 14, 1986. At this time, Don Schlunk reported that a urinalysis which Newsome had taken was negative for drug use. A juvenile court officer then testified that there was no present need for Newsome to undergo drug counselling. She recommended that Newsome be immediately returned to school. At the conclusion of the hearing, the superintendent and principal adjourned to discuss the disposition of the case. Later that day, Newsome's mother was informed that the superintendent had decided to give Newsome a clean disciplinary record if he would accept transfer to the Live Oaks Vocational School in Milford, Ohio. Newsome declined this offer, and, on November 17, 1986, he was notified that he had been expelled from school for the remainder of the fall semester.

On November 24, 1986, the Batavia School Board met in executive session to consider Newsome's appeal of his expulsion. Newsome was represented by counsel during this hearing. The principal and superintendent led off the hearing by recounting the statements of the two accusing students. Again, they did not disclose the names of these students but affirmed their belief that the students were telling the truth. The principal stated that he did not believe the students were "out to get" Newsome and that the students were not close friends. In concluding his testimony, the superintendent stated that his decision to expel Newsome was based solely on the statements of the two student informants. Newsome's attorney requested an opportunity to cross-examine the principal and superintendent, but this request was denied by the school board. The meeting concluded with Newsome's testifying that he did not possess or offer to sell marijuana on school property. Newsome's attorney then was allowed a closing argument.

After Newsome, his mother, and his attorney were excused, the school board, together with the principal and superintendent, reviewed the evidence in the case. Upon completing their review, the school board affirmed the superintendent's decision to expel Newsome by a unanimous vote. This decision was confirmed by a letter dated December 1, 1986. The letter stated that Newsome was expelled from Batavia High School until January 21, 1987.

On December 10, 1986, Newsome filed this action in the district court. The complaint, brought under 42 U.S.C. Sec. 1983 and the fourteenth amendment, alleged that Newsome was denied procedural due process during the school board hearing in the following respects: (1) he was denied the opportunity to cross-examine or to even know the identities of his student accusers; (2) he was denied the opportunity to cross-examine the principal and superintendent; and (3) he was denied the right to an impartial tribunal since the school board allowed the principal and superintendent to participate in its review of the superintendent's decision to expel him. Newsome's prayer for relief requested a temporary restraining order and an injunction prohibiting school officials from enforcing his explusion, an injunction requiring the school district to implement a disciplinary process that comports with the requirements of procedural due process, an injunction requiring the school district to provide tutorial assistance to him in making up the work he missed during his expulsion, and $10,000 in compensatory damages as well as attorney's fees.

On December 22, 1986, the district court conducted a self-styled "nonevidentiary hearing" to garner some additional information from the school principal and superintendent. In response to questioning from the court, the superintendent disclosed for the first time that he presented evidence to the school board during their closed deliberations that he had not disclosed during his testimony at the open hearing. Specifically, the superintendent told the school board during their closed deliberations that Jean Wessler, a counselor with the Clermont County Council on Alcoholism, had previously informed him that Newsome had confessed to her his involvement in the alleged possession and attempted trafficking incident. Upon learning at this hearing of this evidentiary disclosure to the school board, and prior to the dismissal of the case, Newsome's attorney approached Jean Wessler about her purported statement to the superintendent. Wessler executed an affidavit that was submitted to the district court denying that Newsome had ever confessed to her his alleged involvement in the incident and that she had ever made such a representation to the superintendent.

On December 29, 1986, the district court, 656 F.Supp. 147, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, issued an order denying Newsome's motion for a temporary restraining order and a preliminary injunction and dismissing his action on the merits. It is from this order that Newsome now appeals.

II.

Remarkably, in its argument to the district court and in its brief to this court, the school district does not raise the issue of whether Newsome has article III standing to seek an injunction ordering the school district to revise its pre-expulsion procedures so that they accord with the dictates of due process. We reach this issue sua sponte, however, because constitutional standing is always a "threshold inquir[y] which this court is obligated to consider prior to asserting jurisdiction over [an] appeal." Allstate Ins. Co. v. Wayne County, 760 F.2d 689, 691 (6th Cir.1985).

In City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the Supreme Court held that, where a plaintiff has been deprived of his constitutional rights by the acts of government officials and seeks declaratory relief to the effect that any such future acts of deprivation are repugnant to the Constitution and/or an injunction preventing such future acts, the plaintiff must demonstrate that he is presently exposed to "a real and immediate threat" of future deprivation by the complained of acts. Id. at 105, 103 S.Ct. at 1667. In order to meet this burden, the plaintiff must show that: (1) he is likely to have another encounter with government officials of the kind which precipitated the complained of act; and (2) either the government officials always engage in the complained of act or the government ordered or authorized the act. Id. at 105-06, 103 S.Ct. at 1667.

In concrete terms, Lyons dealt with a case in which the plaintiff had been stopped by Los Angeles police department officials for violating the traffic laws of the State of California. Allegedly without provocation, the officers administered a "chokehold" to the plaintiff causing injury to his larynx. The plaintiff brought suit in federal district court seeking not only damages but also a judicial declaration that the routine use by Los Angeles police officers of chokeholds on non-threatening detainees violates the first, fourth, eighth, and fourteenth amendments as well as an injunction prohibiting the police from...