Graham v. Knutzen, Civ. No. 72-0-266.

• Decision Date: 13 October 1972
• Docket Number: Civ. No. 72-0-266.
• Citation: 351 F. Supp. 642
• Parties: Cora GRAHAM, natural parent and best friend of Geraldine Graham, a minor, et al., Plaintiffs, v. Owen KNUTZEN, Superintendent of the Omaha Public Schools, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

351 F. Supp. 642

Cora GRAHAM, natural parent and best friend of Geraldine Graham, a minor, et al., Plaintiffs, v. Owen KNUTZEN, Superintendent of the Omaha Public Schools, et al., Defendants.

Civ. No. 72-0-266.

United States District Court, D. Nebraska.

October 13, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert V. Broom, Robert S. Catz and Vard R. Johnson, Legal Aid Society, Omaha, Neb., for plaintiffs.

Edmund D. McEachen, Young, Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Omaha, Neb., for defendants.

DIER, District Judge.

The complaint of the plaintiffs raises apparent constitutional issues. Plaintiffs proceed in forma pauperis.

The Court allowed evidence to proceed piecemeal initially concerning the urgency alleged, and has continued periodically to hear evidence covering not only matters for a temporary restraining order, but for a preliminary and permanent injunction and for declaratory relief, and has considered all of the evidence touching to the "class action" claim, as well as alleged civil rights violations. Thus, the Court has considered every one of the elements and theories of the prayer of the plaintiffs' complaint.

Plaintiffs have just recently filed notice that they have no further evidence of any kind to offer in support of any elements of their complaint, and defendants have rested any further presentation.

THE PLEADINGS AND JURISDICTION

This matter came on for hearing before the Court upon the complaint of three school-age children and their mothers against the Superintendent of the School District of Omaha, Owen Knutzen, the members of the Board of Education of the Omaha School District, and three principals in the Omaha Public Schools, Mr. Harold Reeves, principal of Omaha North High School, Clarence Barbee, principal of Horace Mann Junior High School, and Miss Ida Gitlin, principal of Indian Hill Elementary School.

The complaint sounds in civil rights and seeks a declaratory judgment "that suspensions of students for extended periods of time without any prior notice or fair and proper hearing are unconstitutional" in that their result is to deprive "plaintiffs of their fundamental right to education without due process of law, as required and guaranteed by the Fourteenth Amendment to the United States Constitution." Plaintiffs allege that "suspensions of students for extended periods of time without any prior notice or fair and proper hearing" are had by the defendants pursuant to Sections 6.7 and 3.28e of the Policies and Regulations of the School District of Omaha.

Plaintiffs allege that Sections 6.7a and 3.28e of said Regulations, which they interpret as setting forth the grounds for exclusion from school "on their face and as applied are void for vagueness and, therefore, violate Plaintiffs' constitutional rights to due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States."

Such claims appear to present a proper case for declaratory relief under 42 U.S. C.A. § 1983 and 28 U.S.C.A. §§ 2201 and 2202. Jurisdiction is conferred by 28 U.S.C.A. § 1343(3).

The law of the State of Nebraska, Section 79-449, R.R.S.Neb.1943, provides that a suspension of a student from school "* * * shall not extend beyond the close of the school semester * * *." However, the fact that the minor plaintiffs are no longer under the disability of a suspension from the Omaha Public Schools does not render the case moot. See Esteban v. Central Missouri State College, 415 F.2d 1077, 1079, n. 1 (8 Cir. 1969).

The plaintiffs' complaint further alleges that: "* * * Defendants intend to, and will, continue their present unconstitutional suspension policies and practices, unless the Court orders said unconstitutional policies and practices to cease."

The correctness of the procedures followed in the suspension of minor plaintiffs from the schools they attended has been alleged by the defendants' answer. Cf. Torres v. New York State Department of Labor, 318 F.Supp. 1313, 1316 (S.D.N.Y.1970). The time for decision of this issue is, therefore, pressing.

The plaintiffs' complaint seeking a temporary restraining order, and mandatory injunction was filed on May 17, 1972. On May 19, 1972, plaintiffs' motion for a temporary restraining order was filed. On May 24, 1972, the Court held a hearing on plaintiffs' motion for a temporary restraining order. The complaint also sought to restrain the defendants from denying minor plaintiffs' immediate access to their respective schools. It requested they be returned to school until each of the individual minor plaintiffs had been provided a hearing before an impartial hearing officer. The contention of the plaintiffs was that the minor plaintiffs would be irreparably harmed if the schools which had suspended them did not allow their return for the eight days of the school year remaining. It was contended by plaintiffs' counsel that the failure of the Court to enter a temporary restraining order at this time would effectively deprive the plaintiffs of an entire semester of their education.

The Court found this to be unsupported. On May 24, 1972, it was judicially noted by the Court that, at most, fewer than ten actual class days remained in the then-present school term. Two of the minor plaintiffs had not attended school since March 29, 1972, and the third minor plaintiff had not attended school since February 25, 1972. The filing of a complaint requesting a temporary restraining order on May 19, 1972, came with their absence already long in existence. Irreparable injury cannot, therefore, have occurred because of the plaintiffs' absence from school for the last several days of the term.

At the initial hearing, it became evident that "class action" was in issue, and it became further evident that the system used by the schools deserved scrutiny more importantly than individual mistaken judgment error in isolated instances unless the evidence would support such instances as standard procedures.

The Court stated its concern to counsel that it wanted evidence on violations, if any, on procedural due process. Cf. Federal Rule of Civil Procedure 23(c) (4)(A). If the evidence should show systematic violations of due process, injunctive relief would be forthcoming. In the event that the system utilized by the defendants was determined to be procedurally adequate, then the Court should proceed to consider the cases on the question of whether there had, nevertheless, been a deprivation of the rights secured to the plaintiffs under 42 U.S. C.A. § 1983.

At this time the Court, after the initial hearing, denied plaintiffs' motion for a mandatory order returning the minor plaintiffs to school. The benefit to the plaintiffs of immediate return to school, as opposed to the possible effect on the defendants' school operation, required further evidence on which to make a fair decision.

The crux of the individual positions of the parties appear from the following excerpts of the pleadings. With regard to the allegations "that suspensions of students for extended periods of time without any prior notice or fair and proper hearing are unconstitutional", the plaintiffs' complaint states:

24) Plaintiff GERALDINE GRAHAM has been expelled from North High School since on or about March 29, 1972, without having received any form of proper hearing before an impartial hearing officer or tribunal with the opportunity to face her accusers and to present evidence on her behalf.

* * * * * *

29) Plaintiff PRATT has remained suspended from the Omaha Public School System from March 29, 1972, to date, without having received a hearing before an impartial hearing officer and without the opportunity to confront all of his accusers and to present all the evidence on his behalf.

* * * * * *

32) Plaintiff GEORGE COOPER-RIDER has remained suspended from Indian Hills School for over three months, (from on or about February 11, 1972, to date), without having received any form of prior notice or a proper hearing, and Defendant GITLIN has refused to discuss his return to school with his mother.

* * * * * *

36) It is a widespread invidious practice among Defendants and their agents to suspend class Plaintiffs for extended periods of time, and thereby deprive them of education, without providing:

a) Notice of the specific reasons for the suspension;

b) Notice of the "nature of the evidence" against the suspended student;

c) Notice of the right to a hearing before an impartial hearing officer or tribunal;

d) Notice of the right to appeal to the Board of Education;

e) A fair hearing before an impartial hearing officer with the opportunity to present a defense, to confront witnesses against the student, and to have legal counsel or other representative present; and

f) A notice and a hearing "before" the suspension takes effect.

* * * * * *

39) On information and belief, Plaintiffs believe that Defendants intend to, and will, continue their present unconstitutional suspension policies and practices, unless the Court orders said unconstitutional policies and practices to cease.

Plaintiffs further state that Section 6.7a and 3.28e of the Policies and Regulations of the School District of Omaha violate their rights to due process of law. The pertinent parts of said Rules and Regulations are:

6.7a. No pupil shall be barred from school attendance except by temporary suspension approved by the principal. No set time for suspension is permitted. In every instance the principal shall take active steps to return the pupil to school as quickly as possible. Expulsion of pupils from school is not permissible without the approval of the office of the Superintendent of Schools.

b. Expulsion and suspension may be used as a means of punishment only in the most severe offenses.

3.28e. In his relationship to the pupils in his building, the principal shall have the power to suspend pupils temporarily at any time. Such suspension shall require that parents or

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