Murray v. West Baton Rouge Parish School Board, 72-1871.

• Decision Date: 19 January 1973
• Docket Number: No. 72-1871.,72-1871.
• Citation: 472 F.2d 438
• Parties: Joseph MURRAY, Jr., a minor by Joseph Murray, Sr., his guardian, et al., Plaintiffs-Appellants, v. WEST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.2d 438 (1973)

Joseph MURRAY, Jr., a minor by Joseph Murray, Sr., his guardian, et al., Plaintiffs-Appellants, v. WEST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellees.

No. 72-1871.

United States Court of Appeals, Fifth Circuit.

January 19, 1973.

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Etta Kay Hearn, Wilfret R. McKee, Baton Rouge, La., for plaintiffs-appellants.

Charles H. Dameron, Emile C. Rolfs, III, Baton Rouge, La., for defendants-appellees.

John Dale Powers, Baton Rouge, La., amicus curiae.

Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

In this case, plaintiffs, black students in the West Baton Rouge Parish, Louisiana public schools, challenge the constitutionality of (1) the Louisiana public school disciplinary statutes; (2) the rules and regulations of Port Allen High School; and (3) the system of psychological testing used in the elementary schools. The district court, after trial, dismissed plaintiffs' suit. We affirm.

I. Disciplinary Statute

The genesis and focus of much of this litigation is a disruptive demonstration that took place at Port Allen High School on January 19, 1972. As a result of this demonstration, over one hundred black students were suspended in attainder-like fashion without any prior hearing. Immediately following this mass suspension, the district court found that the school should not have suspended the demonstrators without some type of prior hearing, and on January 28, 1972, the court ordered that all suspended students be reinstated and afforded a hearing. This order was complied with by the school authorities. The students were reinstated, hearings were held, and some of the students were then suspended again. Since that time, at least two students have been sent home from school for short periods of time without having been accorded a prior hearing.

On March 27, 1972, plaintiffs, a rather ill-defined class of black students and parents, filed a § 1983 complaint in federal district court seeking declaratory and injunctive relief, alleging inter alia, that the state disciplinary statute, § 416 of Title 17, La.Rev.Stat., was unconstitutional under the First and Fourteenth Amendments.

A. Three-Judge Court Requirement. In their complaint, plaintiffs requested that a three-judge court be convened pursuant to 28 U.S.C. § 2281 to pass on the statutory claim. The district court refused this request. The law is clear that even where there is an otherwise proper constitutional-injunctive challenge to a state statute, a three-judge court can be denied if the constitutional question is plainly insubstantial. Ex parte Poresky, 1934, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Kirkland v. Wallace, 5 Cir.1968, 403 F.2d 413, 415-416. Plaintiffs challenge the statute on both First Amendment and Due Process grounds. Since we find both challenges plainly insubstantial, see Pervis v. LaMarque Ind. School Dist., 5 Cir.1972, 466 F.2d 1054, we hold that a three-judge court was not necessary in this case.

B. First Amendment Vagueness. Included in the list of offenses that are punishable under the statute are: "willful disobedience," "intentional disruption," "immoral or vicious practices," "disturbs the school," and others of similar import.¹ Plaintiffs contend that these vague proscriptions give school authorities too much leeway in deciding what activity should be punished. It is argued that since the statute could easily be used arbitrarily to infringe on protected First Amendment activities it should therefore be struck down as too vague. E.g., Thornhill v. Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093.

In Pervis v. LaMarque Ind. School Dist., supra, this court rejected a similar argument in a case where the vagueness of the term "incorrigible" was challenged. "Incorrigible" was further defined in the statute under attack as:

"* * * any child within the compulsory school attendance age who is * * * insubordinate, disorderly, vicious, or immoral in conduct, or who persistently violates the reasonable rules and regulations of the school which he attends, or who otherwise persistently behaves in such a manner as to render himself an incorrigible."

Id. at 1057 of 466 F.2d. We rejected the argument that the statute was unconstitutionally vague, with Judge Rives dismissing the constitutional claim as "insubstantial." See also, Dunn v. Tyler Ind. School Dist., 5 Cir.1972, 460 F.2d 137, 142-143; but see, Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1061-1067 (1969).

The statutory proscriptions at issue here are unquestionably imprecise. It is clear, however, that school disciplinary codes cannot be drawn with the same precision as criminal codes and that some degree of discretion must, of necessity, be left to public school officials to determine what forms of misbehavior should be sanctioned.² Absent evidence that the broad wording in the statute is, in fact, being used to infringe on First Amendment rights, cf. Tinker v. Des Moines Ind. Community School Dist., 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, we must assume that school officials are acting responsibly in applying the broad statutory command. See generally, Karr v. Schmidt, 5 Cir.1972, 460 F.2d 609. Despite a vehement attack on the administration of the Port Allen High School, plaintiffs have in no way made a factual showing that the statutory discretion accorded to the school officials is being constitutionally abused.

Although a student does not discard his First Amendment rights upon entering the school house door, see, e.g., Tinker v. Des Moines Ind. Community School Dist., supra; Shanley v. Northeast Ind. School Dist., 5 Cir.1972, 462 F.2d 960, the First Amendment does not give individual students the right to disrupt openly the educational process in order to press their grievances. We cannot say that this statute, either on its face or as applied by the Port Allen High School authorities, violates the First Amendment.

C. Due Process. Plaintiffs' due process attack on the statute appears to be based primarily on the fact that the statute does not, in terms, require a prior hearing every time a student is suspended. The statute reads, in relevant part:

"A. Every teacher is authorized to hold every pupil to a strict accountability for any disorderly conduct in school or on the playgrounds of the school, on the street or road while going to or returning from school, or during intermission or recess. School principals may suspend from school any pupil who is guilty of . . . any offense listed in footnote 1, supra. Notice in writing of the suspension and the reasons therefor shall be given to the parent or parents of the pupil suspended. Any parent of a pupil suspended shall have the right to appeal to the parish superintendent of schools, who shall conduct a hearing on the merits. The decision of the superintendent of schools on the merit of the case, as well as the term of suspension, shall be final, reserving the right to the superintendent of schools to remit any portion of the time of suspension."

Due process requirements for public school suspensions have not yet been sharply defined. See, e.g., Williams v. Dade County School Board, 5 Cir.1971, 441 F.2d 299; Dunn v. Tyler Ind. School Dist., supra. On the basis of existing case law, however, we can say without equivocation that plaintiffs have failed to demonstrate that any due process violation occurred. It is clear that a suspension for forty days or more without provision for a prior hearing presents serious due process problems. See Williams v. Dade County School Board, supra; Pervis v. LaMarque Ind. School Dist., supra; see also, Dixon v. Alabama State Board of Educ., 5 Cir.1961, 294 F.2d 150, cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193. It is equally clear that due process does not require a hearing every time a student is sent home from school or suspended for a short period of time. Dunn v. Tyler Ind. School Dist., supra; Banks v. Board of Public Instruction of Dade County, S.D.Fla.1970, 314 F.Supp. 285, vacated and remanded, 1971, 401 U.S. 988,³ 91 S.Ct. 1223, 28 L.Ed.2d 526, aff'd 450 F.2d 1103; Tate v. Board of Education of Jonesboro, 8 Cir.1972, 453 F.2d 975; Farrell v. Joel, 2 Cir.1971, 437 F.2d 160; Baker v. Downey City Board of Educ., C.D.Cal.1969, 307 F. Supp. 517; see also, Black Students of North Fort Myers Jr.-Sr. High School v. Williams, 5 Cir.1972, 470 F.2d 957.

The statute before us does not, in explicit terms, indicate the duration of a "suspension." Absent evidence that students are, in fact, being suspended for long periods of time without prior hearings, we cannot assume that the statute is being applied in an unconstitutional fashion.⁴ Plaintiffs have not shown us any example of a student being suspended for more than a few days without a hearing having been accorded. Whatever procedural inadequacies existed during the January 19th mass suspensions were cured by the district court order of January 28, and we do not feel that the school board actions in that incident require a holding that the state statute is unconstitutional.

Further, we cannot accept plaintiffs' claim that the statute is unconstitutional because it provides that the superintendent is to conduct all suspension hearings. Due process in the schools does not require that a court of law be convened to hear every suspension, and we find that a hearing before the superintendent is, at least presumptively, adequate to meet the requirements for a fair, impartial hearing. This is not to say that if it can be clearly shown that the superintendent was biased or in any way unable to function fairly as a trier of fact, that a violation of due process cannot be shown. No such showing was made here, and any complaint as to the constitutionality of the statute in this regard must fail.

In sum, whatever individual injustices may have taken place in the administration of discipline in West Baton Rouge...