Nevares v. San Marcos Consol. Independent School Dist.
| Decision Date | 11 April 1997 |
| Docket Number | No. 96-50420,96-50420 |
| Citation | 111 F.3d 25 |
| Parties | 117 Ed. Law Rep. 470 Dan NEVARES, Individually and as next friend for Timothy Nevares, a minor, Plaintiff-Appellee, v. SAN MARCOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant, Texas Education Agency, Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael Charles Shulman, Michael C. Shulman, Attorney at Law, San Marcos, TX, Peter R. Meeker, Austin, TX, for Plaintiff-Appellee.
Eric W. Schulze, Dorcas Ann Green, Walsh, Anderson, Underwood, Schulze & Aldridge, Austin, TX, for Defendant-Appellant.
Edward J. Tuddenham, Wiseman, Durst, Tuddenham & Owen, Austin, TX, for Texas Federation of Teachers, Amicus Curiae.
Robert Teir, Dallas, TX, for American Alliance for Rights and Responsibilities, Amicus Curiae.
Gwendolyn H. Gregory, Alexandria, VA, for National School Board Association, Amicus Curiae.
Denise Nance Pierce, Austin, TX, for Texas Association of School Administrators, Texas Association of School Boards and Texas Council of School Attorneys, Amicus Curiae.
Appeals from the United States District Court for the Western District of Texas.
Before REAVLEY, KING and BARKSDALE, Circuit Judges.
The district court has declared a Texas statute unconstitutional because it does not expressly mandate that the school afford a proper hearing for a student charged with off-campus conduct punishable as a felony prior to transferring the student to an alternative education program. The student was not transferred to the alternative program, because his father sought immediate judicial intervention. We find no constitutional deprivation actual or threatened, and dismiss the case for lack of standing.
High school student Timothy Nevares sued the San Marcos Independent School District challenging his transfer to the Rebound alternative education program and the constitutionality of Texas Educ.Code § 37.006(a). The district court held that the threatened removal from regular classes and assignment to the Rebound program was a form of punishment that impacted the student's protected property and liberty interests. We disagree.
Timothy Nevares, a 15 year old tenth grade student, was detained for aggravated assault on January 23, 1996 by the San Marcos police. He reportedly threw stones at a car and injured one of the passengers. On February 12, 1996, the school received the police report of Nevares' detention and the assistant principal took Nevares from class to question him. Nevares refused to make any statement at this meeting other than to tell the school authorities to contact his father and lawyer, saying they were getting the matter dismissed.
Thereafter, Nevares' father called the school principal, admitted that the act in question had occurred but maintained that his son's behavior had been in self-defense, and requested a meeting to discuss the situation before the school took any action. The principal explained that according to school regulations, once there was reason to believe an aggravated assault had been committed, Timothy would be reassigned to the alternative education program. When the principal confirmed with the juvenile authorities that the aggravated assault charge on Nevares was still pending, he decided to transfer Timothy to the Rebound program. Nevares promptly sued.
At the threshold we must decide whether any constitutional injury is presented and whether Nevares has standing to sue for a declaratory judgment on the unconstitutionality of the statute or for a permanent injunction against the school district. Federal courts have no jurisdiction under Article III § 2 of the Constitution unless a case or controversy is presented by a party with standing to litigate, and this requires a showing of "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent." Arizonans for Official English v. Arizona. 1
The Supreme Court has held that the suspension from school without some kind of notice and hearing may violate property and liberty interests. 2 The state statute to which the Court pointed in Goss gave students the entitlement to a public education. Timothy Nevares is not being denied access to public education, not even temporarily. He was only to be transferred from one school program to another program with stricter discipline. This alternative program is maintained by Texas schools for those students whose violations of the law or the school's code of conduct fall short of triggering suspension or expulsion, but who for reasons of safety and order must be removed from the regular classroom. 3
Today it is generally recognized that students are being deprived of their education by lack of discipline in the schools. 4 Not only does disorder interfere with learning school studies, it also defeats the charge to "inculcate the habits and manners of civility." Vernonia School District 47J v. Acton. 5
We have previously held that no protected property interest is implicated in a school's denial to offer a student a particular curriculum. 6 In Arundar, a high school student had claimed that her property right to education was implicated when she was...
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