G.C. v. Owensboro Pub. Sch.

• Decision Date: 28 March 2013
• Docket Number: No. 11–6476.,11–6476.
• Citation: 711 F.3d 623
• Parties: G.C., Plaintiff–Appellant, v. OWENSBORO PUBLIC SCHOOLS; Larry Vick, in his individual capacity as Superintendent of Owensboro High School; Anita Burnette, in her individual capacity as Principal of Owensboro High School; Melissa Brown and Christina Smith, in their individual capacities as Assistant Principals of Owensboro High School, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

711 F.3d 623

G.C., Plaintiff–Appellant,

v.OWENSBORO PUBLIC SCHOOLS; Larry Vick, in his individual capacity as Superintendent of Owensboro High School; Anita Burnette, in her individual capacity as Principal of Owensboro High School; Melissa Brown and Christina Smith, in their individual capacities as Assistant Principals of Owensboro High School, Defendants–Appellees.

No. 11–6476.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 24, 2013.

Decided and Filed: March 28, 2013.

ARGUED:Edward E. Dove, Dove Law Office, Lexington, Kentucky, for Appellant. Michael A. Owsley, English, Lucas, Priest & Owsley, LLP, Bowling Green, Kentucky, for Appellees. ON BRIEF:Edward E. Dove, Dove Law Office, Lexington, Kentucky, for Appellant. Michael A. Owsley, English, Lucas, Priest & Owsley, LLP, Bowling Green, Kentucky, for Appellees.

Before: NORRIS, MOORE, and DONALD, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which DONALD, J., joined, and NORRIS, J., joined in part. NORRIS, J. (pp. 635–36), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff–Appellant G.C. began attending school in the Owensboro Public School District as an out-of-district student in 2005. In September 2009, G.C. was caught sending text messages in class. School officials confiscated his cell phone and read the text messages. Because this was the last in a series of disciplinary infractions, Superintendent Dr. Larry Vick (“Vick”) revoked G.C.'s out-of-district status, barring him from attending Owensboro High School. G.C. filed suit, raising both federal and state-law claims against Defendants–Appellees Owensboro Public Schools, Vick, Principal Anita Burnette (“Burnette”), Assistant Principal Melissa Brown (“Brown”), and Assistant Principal Christina Smith (“Smith”), (collectively, “defendants”). The defendants moved for summary judgment, which the district court granted.

G.C. appeals the district court's resolution of three of his claims: (1) his due-process claim, in which he argues that he was denied a hearing prior to expulsion as required by Kentucky statute; (2) his Fourth Amendment claim based on the September 2009 search, in which he contends that school officials violated his constitutional rights when they read text messages on his phone without the requisite reasonable suspicion; and (3) his Rehabilitation Act claim, in which he argues that the defendants failed to identify him as disabled under § 504.

For the reasons stated below, we REVERSE the district court's grant of summary judgment on G.C.'s due-process claim and on G.C.'s Fourth Amendment claim based on the September 2009 search. We AFFIRM the district court's grant of summary judgment on G.C.'s Rehabilitation Act claim. We REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

From 2005 to 2008, G.C. enrolled as an out-of-district student in the Owensboro Public School District. R. 69–17 (Vick Aff. at ¶ 5) (Page ID # 499); R. 69–3 (G.C. Tr. at 10:4–21) (Page ID # 359). Owensboro Public School District has a reciprocal agreement with Daviess County Public School District, the district where G.C.'s parents reside, that allows a limited number of students to enroll in the district where they do not reside. R. 69–17 (Vick Aff. at ¶ 3) (Page ID # 499). As explained by Vick, “[o]ut-of-district students who attend the [Owensboro Public School District] do so pursuant to Board [P]olicy 09.125.... This policy provides in pertinent part, ‘The continued enrollment of non-resident students in the District's schools is subject to the recommendation of the school Principal and the approval of the Superintendent.’ ” Id. ¶ 4 (quoting R. 19, Ex. A (Board Policy 09.125 at 1) (Page ID # 117)). Under this policy, “[n]onresident students are defined as those whose parent or guardian resides outside the District.”R. 19, Ex. A (Board Policy 09.125 at 1) (Page ID # 117).

During his freshman year at Owensboro High School, G.C. began to have disciplinary problems. Shortly thereafter, he communicated with school officials that he used drugs and was disposed to anger and depression. The relevant incidents and discussions are as follows. On September 12, 2007, the first incident in the record, G.C. was given a warning for using profanity in class. R. 69–7 (Referral at 1) (Page ID # 466). In February 2008, G.C. visited Smith's office and expressed to Smith “that he was very upset about an argument he had with his girlfriend, that he didn't want to live anymore, and that he had a plan to take his life.” R. 69–8 (Smith Aff. at ¶ 4) (Page ID # 467). In this same meeting, G.C. told Smith “that he felt a lot of pressure because of football and school and that he smoked marijuana to ease the pressure.” Id. ¶ 5. As a result of this interaction, Smith met with G.C.'s parents and suggested that he be evaluated for mental health issues. Id. ¶ 6. G.C.'s parents took him to a treatment facility that day. Id.; R. 69–28 (Bio–Psycho Social Assessment) (Page ID # 536–48).

On November 12, 2008, G.C. was given a warning for excessive tardies, and on November 17, 2008, G.C. was disciplined for fighting and arguing in the boys locker room. R. 69–12 (Referrals at 1) (Page ID # 490). On March 5, 2009, G.C. walked out of a meeting with Summer Bell, the prevention coordinator at the high school, and left the building without permission. R. 69–8 (Smith Aff. at ¶ 7) (Page ID # 468); R. 69–10 (Bell Tr. at 40:19–21) (Page ID # 484). G.C. made a phone call to his father and was located in the parking lot at his car, where there were tobacco products in plain view. R. 69–8 (Smith Aff. at ¶ 8) (Page ID # 468). G.C. then went to Smith's office, and Smith avers that G.C. “indicated he was worried about the same things we had discussed before when he had told me he was suicidal.” Id. She states that she “was very concerned about [G.C.'s] well-being because he had indicated he was thinking about suicide again. I, therefore, checked [G.C.'s] cell phone to see if there was any indication he was thinking about suicide.” Id. ¶ 9. The record also indicates that G.C. visited a treatment center that day, and the counselor recommended that he be admitted for one to two weeks. R. 69–28 (Bio–Psycho Social Assessment) (Page ID # 560–61).

On March 9, 2009, school officials convened a hearing with G.C. and his parents regarding the March 5 incident, at which both G.C. and school officials gave testimony. R. 69–13 (Hearing Minutes at 1–2) (Page ID # 491–92). G.C. was placed on probation and assigned four days of in-school suspension. Id. at 3 (Page ID # 493). On April 8, 2009, G.C. was suspended after yelling and hitting a locker. R. 69–15 (Referral at 1) (Page ID # 497). At the end of the 2008–09 academic year, Burnette recommended that Vick revoke G.C.'s authorization to attend Owensboro High School. R. 69–17 (Vick Aff. at ¶ 10) (Page ID # 500). Vick did not follow this recommendation, and on June 15, 2009, he met with G.C.'s parents to discuss “what was expected of [G.C.] to be permitted to continue attending the [Owensboro Public School District] as an out-of-district student.” Id. According to Vick, he described the expectations as follows:

At this meeting, I explained to [G.C.'s] parents that they had three options regarding their son's education. First, I told them they could send [G.C.] to the [Daviess County Public School District] since they resided in that school district with their son. I told them their second option was to actually move into the [Owensboro Public School District] and that, upon so doing, [G.C.] would be entitled to all the rights of a resident student. Finally, I told them that despite ... Burnette's recommendation, I would allow [G.C.] to continue to attend school in the [Owensboro Public School District] as a non-resident student for the 2009–10 school year on the condition and understanding that, if he had any further disciplinary infraction, this privilege would be immediately revoked and he would be required to return to his home school district.

Id. ¶ 11.

On August 6, 2009, G.C.'s parents registered G.C. to attend Owensboro High School for the 2009–10 academic year. R. 69–16 (Registration Form at 1) (Page ID # 498). Unlike in years past, however, they filled out an in-district registration form and listed G.C.'s physical address as that of his grandparents, who lived in the Owensboro Public School District. Id. On the same form, they stated that G.C. lived with his parents, who maintained their residence in the Daviess County School District. Id.

On September 2, 2009, G.C. violated the school cell-phone policy when he was seen texting in class. R. 69–4 (Brown Aff. at ¶ 4) (Page ID # 384). G.C.'s teacher confiscated the phone, which was brought to Brown, who then read four text messages on the phone. Id. ¶¶ 4–6 (Page ID # 384–85). Brown stated that she looked at the messages “to see if there was an issue with which I could help him so that he would not do something harmful to himself or someone else.” Id. ¶ 6 (Page ID # 385). Brown explained that she had these worries because she “was aware of previous angry outbursts from [G.C.] and that [he] had admitted to drug use in the past. I also knew [he] drove a fast car and had once talked about suicide to [Smith].... I was concerned how [he] would further react to his phone being taken away and that he might hurt himself or someone else.” Id. ¶ 5 (Page ID # 384–85).

After this incident, Burnette recommended to Vick that G.C.'s out-of-district privilege be revoked, and this time Vick agreed. R. 69–17 (Vick Aff. at ¶ 16) (Page ID # 501). G.C.'s parents were contacted and told that they could appeal the decision if desired. Id. ¶¶ 17–19. (Page ID # 501–02). On October 15, 2009, Vick, Burnette, and other school officials met with G.C.'s parents and their attorney. Id. ¶ 21 (Page ID # 501) Vick explained that G.C. “had violated the condition of his...