Johnson v. Humble Independent School Dist., Civ. A. No. H-92-2390.

• Decision Date: 17 August 1992
• Docket Number: Civ. A. No. H-92-2390.
• Citation: 799 F. Supp. 43
• Parties: Travis JOHNSON and Sheryl Johnson, as Next Friends of Damon Johnson, a Minor Child, Plaintiffs, v. HUMBLE INDEPENDENT SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of Texas

799 F. Supp. 43

Travis JOHNSON and Sheryl Johnson, as Next Friends of Damon Johnson, a Minor Child, Plaintiffs, v. HUMBLE INDEPENDENT SCHOOL DISTRICT, Defendant.

Civ. A. No. H-92-2390.

United States District Court, S.D. Texas, Houston Division.

August 17, 1992.

Arnold A. Vickery, Houston, Tex., for plaintiffs.

J. Timothy Brightman, Bracewell & Patterson, Houston, Tex., for defendant.

MEMORANDUM AND ORDER

WERLEIN, District Judge.

On Friday, August 14, 1992, Plaintiffs Travis and Sheryl Johnson's Motion for Temporary Injunction (Document No. 1A) came on for hearing. The Court, having received and considered the evidence, authorities, and arguments presented by counsel, and for the reasons set forth below, is of the opinion that the motion should be DENIED.

I. Background

Plaintiffs Travis and Sheryl Johnson filed this suit as Next Friends of Damon Johnson ("Johnson"), their minor child. Plaintiffs seek a reversal of Defendant Humble Independent School District's ("HISD") decision to expel Johnson from the Spring 1992 and Fall 1992 school terms.

Johnson is a fifteen year old student at Humble High School, located in Harris County, Texas. On the morning of May 20, 1992, Johnson was involved in an altercation with one of the school's athletic coaches, Jeff Carrigan ("Carrigan"). Johnson admits that during the incident he swung his fist at Carrigan, striking Carrigan in the eye.

In response to this episode, a hearing was held at Humble High school. Coach Carrigan was not present at this hearing. It was determined that, pursuant to Section 21.3011(b) of the Texas Education Code¹, Johnson should be expelled from school for the remainder of the Spring 1992 semester and for all of the Fall 1992 semester. Plaintiffs appealed Johnson's expulsion to the Humble Independent School District Board of Trustees as permitted by Section 21.3011(e) of the Texas Education Code, and the Board upheld the expulsion.

Thereafter, Plaintiffs filed the present suit in the 215th Judicial District Court for Harris County, Texas seeking to reverse Johnson's expulsion. Section 21.3011(e) of the Texas Education Code provides for de novo review of Board decisions by a state district court for the county in which the school district's central administrative office is located. Plaintiffs contend that Johnson was denied the opportunity to confront and cross-examine Carrigan, the primary witness against him, at the hearing and that such denial constituted a violation of Johnson's rights under the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution, the Texas Constitution, Section 21.3011(e) of the Texas Education Code, and 42 United States Code § 1983. Plaintiffs seek a temporary injunction enjoining Defendants HISD from prohibiting Johnson's attendance and enrollment in the regular classes for the Fall 1992 semester of Humble High School. Defendant HISD removed the case to federal court on the grounds that a federal constitutional question is presented.

II. Discussion

To obtain a preliminary injunction, the movant must establish: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat that irreparable injury will result in the absence of the injunction; (3) that the threatened harm to the movant outweighs the threatened harm to the non-moving party; and (4) that granting the injunction will not disserve the public interest. Southerland v. Thigpen, 784 F.2d 713, 715 (5th Cir.1986); Mississippi Power & Light, 760 F.2d 618, 621 (5th Cir.1985); Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974); United Latin Amer. Cit. v. Pasadena Ind. Sch. Dist., 662 F.Supp. 443, 446-447 (S.D.Tex.1987). If any one of these four elements is lacking, the party seeking the injunction cannot prevail. In the case at bar, the Court is of the opinion that Plaintiffs have failed to establish these requisite elements for obtaining preliminary injunctive relief. Plaintiffs most especially have failed to show a substantial likelihood of success on the merits of their due process claim.

In the case at bar, Plaintiffs allege that HISD denied Johnson procedural due process when Johnson was suspended without having been permitted to confront or cross-examine Coach Carrigan at the expulsion hearing. In order to prevail on any due process claim, a plaintiff first must show that he possesses a recognized liberty or property interest. The United States Supreme Court has held that "the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the due process clause...." Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975). Once it is determined that due process applies, the question remains what process is due. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). While it is clear that "a student charged with misconduct may not be suspended from a public school without the `minimum procedures' required by the due process clause," Brewer by Dreyfus v. Austin Indep. Sch. Dist., 779 F.2d 260, 262 (5th Cir.1985), citing Goss, 419 U.S. at 574, 95 S.Ct. at 736, "in the context of school suspension hearings, the Fifth Circuit has cautioned that `the process due may vary in particular cases depending upon the circumstances.'" Id., citing Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1081 (5th Cir.1984).

In Goss v. Lopez, the United States Supreme Court first addressed the issue of what process is due public students in school suspension cases. While Goss specifically limited itself to "the short suspension, not exceeding ten days," it nevertheless "establishes the minimum requirements for long-term expulsions as well." Newsome v. Batavia Local School Dist., 842 F.2d 920 (6th Cir.1988) emphasis added. These minimum requirements include "oral and written notice of the charges against the student and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." Goss, 419 U.S. at 581, 95 S.Ct. at 740.

While the Supreme Court in Goss specifically cautioned that "suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures," Goss, 419 U.S. at 584, 95 S.Ct. at 741, the high court has yet to determine what such "more formal procedures" might include. In the absence of such a ruling, lower federal courts evaluating the procedures used in long-term suspension cases, after assuring that the student was afforded the "minimum procedures" described above, have applied a balancing test similar to the general procedural due process analysis set forth by the Supreme Court in Mathews v. Eldridge. See Newsome, 842 F.2d at 923, in which the court, considering the procedures afforded a student expelled for the remainder of a semester, stated that "without the aid of Supreme Court authority directly on point, we are left with resolving the procedural due process issues presented in this appeal under the more general rubric of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)." The Mathews analysis provides for a flexible, policy-oriented analysis of procedural due process issues in which three competing factors are balanced against each other. These factors include: (1) the private interest that will be affected by the official action; (2) the probative value, if any, of additional or substitute safeguards; and (3) the government's interest, including the fiscal and administrative burden that the additional or substitute procedural requirements would entail. Mathews, 424 U.S. at 334-335, 96 S.Ct. at 902-903. As articulated by the Fifth Circuit, "the sufficiency of procedures must be judged in the light of the parties, the subject matter and the circumstances involved." Brewer, 779 F.2d at 262, citing Keough, 748 F.2d at 1081; Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir.1970).

With regard to the first of the Mathews elements, the private interest affected by the official action, there can be little doubt that "a United States citizen's interest in the free public education to which he is entitled is `important.'" Newsome, 842 F.2d at 924, citing Goss, 419 U.S. at 574, 95 S.Ct. at 736. Accordingly, where a suspended student has been afforded the minimum process required by Goss, a court evaluating the student's procedural due process claims must focus upon whether "the probable value of the additional, preexpulsion safeguards proposed by the student to protect his important interest in a free public education is outweighed by the burden that would be placed upon the school district by the additional safeguards." Newsome, 842 F.2d at 924. In cases like the one at bar, in which the "additional safeguard" proposed by the suspended student is the right to confront and cross-examine his accusers, courts considering the issue consistently have construed the balance in favor of the educational institution.

In Brewer by Dreyfus v. Austin Indep. Sch. Dist., 779 F.2d 260, 262 (5th Cir.1985), a high school student was suspended from attending classes for an eight week period after a school board hearing at which he was found guilty of dealing and using illegal drugs. Brewer's mother, as next friend for her son, sued the school district under 42 U.S.C. § 1983 on the grounds that Brewer was denied due process of law in the suspension hearings. Specifically, Plaintiffs complained that Brewer was not given an opportunity to confront and cross-examine his accusers. Finding that Brewer had not been denied procedural due process, and upholding his suspension, the Fifth Circuit observed:

Brewer's argument — that the Campus Review Board should not have considered evidence that he had used and sold drugs at school without giving him the opportunity to confront and cross-examine the witnesses to these acts — implicitly confuses two quite distinct processes:

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