M. v. Bd. of Ed. Ball-Chatham CUSD No. 5

• Citation: 429 F. Supp. 288
• Decision Date: 16 March 1977
• Docket Number: Civ. No. 77-3035.
• Parties: M. by his parents R. and S., Plaintiff, v. BOARD OF EDUCATION BALL-CHATHAM COMMUNITY UNIT SCHOOL DISTRICT NO. 5, CHATHAM, ILLINOIS, et al., Defendants.
• Court: U.S. District Court — Southern District of Illinois

429 F. Supp. 288

M. by his parents R. and S., Plaintiff, v. BOARD OF EDUCATION BALL-CHATHAM COMMUNITY UNIT SCHOOL DISTRICT NO. 5, CHATHAM, ILLINOIS, et al., Defendants.

Civ. No. 77-3035.

United States District Court, S. D. Illinois, S. D.

March 16, 1977.

Ronald L. Maksym, Mary Lee Leahy, Andrew J. Leahy, Springfield, Ill., for plaintiff.

Alfred B. LaBarre, Springfield, Ill., for defendants.

MEMORANDUM ORDER

ACKERMAN, District Judge.

Plaintiff M., a third year student at Glenwood Senior High School, by his parents R and S, brings this action under 42 U.S.C. § 1983 for redress of alleged violations of his constitutional rights under color of state law by the defendants, Board of Education Ball-Chatham Community District No. 5, Chatham, Illinois, each member of the board as board members and individually, William J. Hovey, individually and as Superintendent, and Michael A. Collins, individually and as Assistant Principal, Glenwood Senior High School.

Plaintiff seeks an injunction requiring defendants to continue plaintiff as a student at Chatham Senior High, expungement of the high school records and damages in the amount of $100,000 from the above-named individual defendants. The cause is here on plaintiff's motion for preliminary injunction.

The facts are not in dispute. On February 9, 1977, at approximately 3:20 in the afternoon Assistant Principal Michael A. Collins was approached by a student who said that he had seen plaintiff and a number of other students passing back and forth what the student thought to be drugs during a study hall on the morning of February 9.¹ The student further stated that plaintiff appeared to be in possession of a large amount of money. Transcript of Expulsion Proceedings before Chatham School Board Unit District No. 5, dated March 3, 1977 hereinafter cited as Transcript at 24-26. Classes adjourned for the day at 3:30.

The next morning at approximately 10:40 a.m. Mr. Collins and Mr. Bird, the assistant principal at the junior high school, entered the study hall class and required plaintiff and the other students reported to be involved in the previous day's activities, to accompany Mr. Collins and Mr. Bird to a nearby kitchen area. There, each boy was searched individually.

In plaintiff's case, the search was accomplished by first requesting plaintiff to empty his pockets. Plaintiff refused. Mr. Collins after stating to plaintiff that there were several alternatives, specifically, calling plaintiff's parents to either get permission for the search or request that they perform the search, or calling the police, attempted unsuccessfully to call plaintiff's parents. After the unsuccessful calls, plaintiff agreed to empty his pockets. Transcript at 6, 15-16. In plaintiff's possession were found a small pipe containing what appeared to be marijuana residue, a small matchbox containing what appeared to be marijuana, and a red and yellow capsule, stated to be a "Contact pill". Transcript at 6.

The substance in the matchbox was subsequently tested by a member of the Chatham Police Department using a field testing kit known as a Voltox kit and the substance was determined to be marijuana.

Mr. Collins, after discovery of the pipe and matchbox and after several more attempts, contacted plaintiff's parents by telephone, informed them of the situation and asked them to come to the school. Further, in a letter dated February 10, Mr. Collins informed plaintiff's parents that plaintiff pursuant to disciplinary procedures promulgated by the Board of Education² was suspended for ten days effective immediately. The letter also advised plaintiff's parents of their right to a hearing on the suspension.

Following the meeting with plaintiff's parents, Mr. Collins prepared a written report of the occurrence. This report along with a request for an expulsion hearing was presented to the defendant board at the next regular board meeting, February 21. Transcript at 13. The expulsion hearing was set for February 24 and notice to plaintiff's parents was given by letter dated February 22, over the signature of William D. Hovey, superintendent of the district. The expulsion hearing was subsequently reset to March 3, at the request of plaintiff's counsel.

At the expulsion hearing on March 3, plaintiff and his parents were present and represented by counsel. Mr. Collins, Mr. Bird, plaintiff, and plaintiff's father testified. Plaintiff's counsel examined all the witnesses, presented questions to the board, and marked documents for identification. The board retired to executive session and after deliberation, ordered plaintiff expelled for the remainder of the school year for violation of the board policy concerning possession of a dangerous substance and related paraphernalia.

Under these circumstances plaintiff contends that his right to due process of law under the Fourteenth Amendment was violated by defendants. Plaintiff contends that the facts present substantive and procedural due process questions. More specifically, plaintiff alleges that his right to substantive due process was violated by an unreasonable search of his person, the fruits of which were introduced against him at the suspension hearing. Additionally, plaintiff contends that his right to due process was violated in at least three instances by the school board procedures or the lack thereof.

I.

In the procedural due process attack on the board action, plaintiff contends that the due process clause was violated in that:

1. the expulsion hearing was conducted without the formulation of any specific procedures to govern expulsion hearings;

2. the disciplinary rules promulgated by the board were overly vague in that they failed to distinguish between conduct which would result in suspension rather than expulsion and;

3. the lack of rules promulgated by the board, to govern search of students by school officials violates fundamental fairness guaranteed by the due process clause.

It is clear that the due process clause is applicable to disciplinary actions taken by public school officials. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). While,

it is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion . . . public high school students do have substantive and procedural rights while at school. Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 922, 1003, 43 L.Ed.2d 214 (1975).

In the Goss case, the Supreme Court held that a suspension of 10 days or less required at least notice and a rudimentary hearing in order to comport with due process. The Court also recognized that "longer suspensions or expulsions for the remainder of the school term, or longer may require more formal procedures." Goss, supra, 419 U.S. at 584, 95 S.Ct. at 741.

In this case, plaintiff was expelled for violation of school rules. Clearly, more than notice and a rudimentary hearing is necessary in order to protect plaintiff's rights under the Constitution. However under the facts here presented, I believe the plaintiff received due process of law.

The procedures followed by the school board here, appear to me to be entirely proper. Although there may have been no written guidebook for the board and plaintiff's attorney to consult concerning expulsion hearings, there was an orderly presentation of evidence by the school officials and plaintiff's counsel. There was adequate notice. All parties were present. All had the opportunity to present whatever testimony they desired and to ask whatever questions they thought appropriate, in front of the assembled school board prior to a decision.

Under these circumstances, the lack of formal guidelines does not violate due process. The cases cited by plaintiff are clearly distinguishable. Nitzberg v. Parks, 525 F.2d 378 (4th Cir. 1975) struck down rules promulgated for prior restraint of student publications on grounds of vagueness, and is inapplicable here. The hearing here was not truncated, incomplete, or merely a rubber stamp for a prior ex parte hearing as was the case in Strickland v. Inlow, 519 F.2d 744 (8th Cir. 1975).

Plaintiff's next objection is that the disciplinary rules promulgated by the board are unconstitutionally vague. I find this argument without merit on the facts here presented.

The disciplinary rules themselves, reproduced here as an appendix, clearly provide differing punishments for differing offenses. Plaintiff contends that as to drug-related offenses, the rules are unconstitutionally vague because they do not differentiate between those offenses meriting a suspension and those offenses from which expulsion may flow. It appears to me that this is not improper or undesirable, much less a violation of due process.

"The system of public education that has evolved in the Nation relies necessarily upon the discretion and judgment of the school administrators and school board members . . ." Wood v. Strickland, supra 420 U.S. at 326, 95 S.Ct. at 1003. The rules here, merely vest the school official with discretion to determine which situations he believes sufficiently serious to warrant expulsion, and the power to request such a sanction from the board. Clearly, the school officials must be vested with this type of discretion in order to maintain discipline and good order. See, Goss, supra 419 U.S. at 589-90, 95 S.Ct. 729 (Powell, Jr., dissenting).

Thirdly, plaintiff argues, citing U. S. v. Barbera, 514 F.2d 294 (2 Cir. 1975), that the failure to provide school administrators with guidelines for searches of students is of itself a violation of due process. But the Barbera case does not go this far. While, I may agree that it would be useful to provide such rules for the use of school administrators, the lack of such rules does not violate due process. As in the language quoted above from the Wood case suggests, the discretion of school officials must be relied upon. If the trust...