Fisher v. Burkburnett Independent School Dist.

• Decision Date: 16 September 1976
• Docket Number: Civ. A. No. CA-7-76-40.
• Citation: 419 F. Supp. 1200
• Parties: Gene FISHER, guardian and next friend for Kate Fisher, Plaintiff, v. BURKBURNETT INDEPENDENT SCHOOL DISTRICT et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

419 F. Supp. 1200

Gene FISHER, guardian and next friend for Kate Fisher, Plaintiff, v. BURKBURNETT INDEPENDENT SCHOOL DISTRICT et al., Defendants.

Civ. A. No. CA-7-76-40.

United States District Court, N. D. Texas, Wichita Falls Division.

September 16, 1976.

Milton E. Douglass, Jr., Wichita Falls, Tex., for plaintiff.

Roger Lee, Wichita Falls, Tex., for defendants.

MEMORANDUM OPINION

ROBERT M. HILL, District Judge.

The facts of this case are not in dispute. The plaintiff, Kate Fisher, a minor 15 years old, was a student at Burkburnett High School when, on May 11, 1976, she seriously overdosed on the drug Elavil. The incident happened at school and nearly resulted in her death. The plaintiff was then suspended ten days for violating a school drug policy. A hearing before the School Board of Trustees on the last day of the suspension resulted in her expulsion for the balance of the school term and loss of all grades and credits for the school term.¹ Plaintiff obtained a temporary restraining order from a state court and passed her final exams. The only question is whether she will be allowed credit for the completed term.

Plaintiff presents essentially three grounds for relief in her complaint. First, she argues that the School Board's drug regulation exceeded a state statutory grant of power. Second, she argues that the alleged mandatory nature of the punishment under this regulation deprived her of procedural due process. Finally, she asserts that the punishment was arbitrary and capricious or, in other words, a violation of substantive due process. Plaintiff also urged at one time that the term "dangerous drug" in the school regulation was unconstitutionally vague and that the School Board's verdict was not supported by substantial evidence. She seems to have since abandoned these latter two points. In any event, the court finds them to be without merit.

I.

The plaintiff's first argument is that the School Board exceeded its statutory authority² in suspending her because Tex. Educ.Code Ann. § 21.301 (1972) authorizes only the suspension of "incorrigible" students.³ The court accepts the plaintiff's definition of "incorrigible" as denoting more than a single instance of misbehavior. It disagrees, however, with her statutory construction. Tex.Educ.Code Ann. § 23.26(d) (1972)⁴ provides an independent grant of authority for school boards to promulgate disciplinary rules and, by necessary implication, to punish students for infractions of these regulations.

The Fifth Circuit read § 23.26 and § 21.301 as alternative grants of disciplinary power in Pervis v. La Marque I. S. D., 466 F.2d 1054, 1057 (1972):

". . . Without reaching the issue whether Pervis and McGrue were punished for violating section 21.301 or the school regulation in question promulgated under § 23.26, we hold that a three-judge court is not required. . . ."

Likewise, in Texarkana I. S. D. v. Lewis, 470 S.W.2d 727 (Tex.Civ.App., Texarkana 1971), a Texas Court of Civil Appeals cited a Texas Attorney General's Opinion consistent with this court's construction of the two statutes as alternative grants of the power to suspend a student.⁵ The court considers this construction of § 23.26(d) as more logical than the plaintiff's one-free-bite (or two, or three) reading of the Texas Education Code. If the bite is sufficiently vicious, a school may under Sec. 23.26(d) suspend even a student who has not previously drawn blood.

This is not to imply that the court considers the plaintiff's behavior as particularly heinous. The court merely holds that the statutes should be reasonably construed to allow school boards to proscribe one-shot offenses punishable by suspension.

Plaintiff also contends that the school board promulgated a mandatory punishment while the statutory authority for suspension makes it a permissive punishment. It is unnecessary to discuss this alleged overstepping of authority in view of the court's construction of Sec. 23.26 as an alternative grant of power, supra, and also in view of the court's finding, discussed below, that the punishment was not in fact mandatory.

II.

Plaintiff contends that she was denied procedural due process because the Burkburnett School Board acted under a policy of mandatory suspension. The relevant portion of her brief states:

. . . In the case at bar the School Board, in following its mandatory policy, merely performed a "formalistic acceptance or ratification" of its prior rule. The Board abdicated its responsibility to exercise proper discretion. Accordingly, Plaintiff received no hearing whatsoever.

Plaintiff's Memorandum at 8.

This description incorrectly characterizes both the facts and the applicable constitutional law.

The transcript of plaintiff's hearing before the School Board shows that the appropriateness of the punishment of expulsion was developed in the record at some length. Both Gene Douglass, plaintiff's attorney, and Roger Lee, attorney for the School Board, questioned the plaintiff's parents about her academic history, her family life, and her plans for future counseling and treatment. Mr. Douglass elicited from plaintiff's father his opinion as an educator about the appropriateness of expulsion for this offense. Tr. at 130-131. Mr. Douglass also argued that expulsion would serve no rehabilitative function. Tr. at 137-138. Both attorneys made it very clear to the School Board that they should not construe the regulation⁶ as being mandatory. Tr. at 26-27, 133-134.

The court finds that, while the school regulation in question was literally mandatory in its use of the word "shall," the School Board had the inherent authority to ignore this mandatory language and impose lesser penalties than expulsion. The punishment in the present case was in fact imposed in a discretionary manner. Although the plaintiff places great emphasis on the Board's language that it would "uphold" the School Board Policy, this does not indicate that the Board merely rubber-stamped a prior decision made before the hearing. In the context of this hearing, the court concludes that the Board considered the punishment prescribed in its regulation to be presumptively correct. If the Board did not find sufficient mitigating circumstances to deviate from the policy, this hardly makes the hearing a sham or rubber-stamp.

Nothing in the Due Process Clause prohibits the establishment of presumptively correct punishments for breaches of school discipline. Quite to the contrary, most recent jurisprudence has urged less rather than more discretion in the imposition of punishment.⁷ The Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), overturned the death penalty principally because of its almost standardless administration.⁸ Legislators and legal pundits have concluded that presumptively correct sentences in the criminal justice system would make punishment much fairer.⁹ This court cannot conclude that a presumption that drug abuse at school should be punished by a trimester's suspension violates procedural due process.

Plaintiff has cited several cases to the effect that mandatory punishment of pupils may violate due process. A closer examination of these cases shows consistency with the court's result in the instant case. In Betts v. Board of Education of City of Chicago, 466 F.2d 629 (7th Cir. 1972), the Seventh Circuit held that the school must allow a student to present arguments in mitigation of punishment "since that penalty was discretionary rather than prescribed." Id. at 633. In other words, the student must be heard about the issue of punishment when punishment is an issue. This case is not authority that school boards may not set mandatory or presumptively correct punishments. Likewise, Lee v. Macon County Board of Education, 490 F.2d 458 (5th Cir. 1974) overturned an expulsion recommended by the school principal as punishment for a course of misconduct, in the absence of any specific regulations.¹⁰ The school board ratified this decision made before the hearing and in the absence of any guiding standards. Due process required that the board hear the student on punishment since the appropriateness of expulsion was issue. Instead the board delegated the decision about punishment to a principal who acted without hearing the student. This opinion in no way indicates that a school board may not formulate a policy about the correct punishment for specific conduct.

Therefore, the court concludes that the Burkburnett School District's regulation, determining in advance that drug abuse presumptively merited a trimester's suspension, was completely consonant with procedural due process. The plaintiff was fully heard by the board on why this policy should not apply to her.

III.

The plaintiff finally urges that her punishment was so grossly excessive that it violates substantive due process. The court does not doubt that the power of the school board to punish is not without limit and that such a case could exist. See Dixon v. Alabama State Board of Education, 294 F.2d 150, 157 (5th Cir. 1961); Lee, supra, at 460 n. 3. Having said this, however, the court cannot find the loss of a trimester constitutionally...