Pervis v. LaMarque Independent School District, 71-3434.

• Decision Date: 19 September 1972
• Docket Number: No. 71-3434.,71-3434.
• Citation: 466 F.2d 1054
• Parties: Lee PERVIS, by his next friend Mrs. Elvin Pervis, et al., Plaintiffs-Appellants, v. LaMARQUE INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 1054 (1972)

Lee PERVIS, by his next friend Mrs. Elvin Pervis, et al., Plaintiffs-Appellants, v. LaMARQUE INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.

No. 71-3434.

United States Court of Appeals, Fifth Circuit.

September 19, 1972.

Nathaniel R. Jones, NAACP, James I. Meyerson, New York City, E. Brice Cunningham, Dallas, Tex., for plaintiffs-appellants.

I. Allen Lerner, LaMarque, Tex., Stanley D. Baskin, Baskin, Fakes & Stanton, Pasadena, Tex., for defendants-appellees.

Crawford Martin, Atty. Gen. of Tex., James C. McCoy, Asst. Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., J. C. Davis, Asst. Atty. Gen., Austin, Tex., for intervenors-appellees.

Before JOHN R. BROWN, Chief Judge, and RIVES and CLARK, Circuit Judges.

RIVES, Circuit Judge:

Again we are asked to intervene in a school discipline case. Two issues are presented on appeal: Whether a three-judge district court is required to hear appellants' cause; and whether procedural due process is satisfied when students who have been suspended from February to the end of the term are not given a hearing until early May. We agree with the district court, 328 F. Supp. 638, that no three-judge court was required. However, we reverse the decision below, holding that the subsequent hearing does not cure the initial lack of due process.

During the 1970-71 school term Lee Pervis and Catherine McGrue were enrolled in the eleventh grade at LaMarque Independent High School in LaMarque, Texas. After repeated infractions of school rules relating to tardiness, missing of classes, disruption of classes, disobedience, etc., Pervis and McGrue were suspended for the balance of the school term on February 9 and 16, respectively. In a letter dated February 9, 1971, the principal informed Pervis' mother of his suspension. Enclosed in that letter was a memorandum from the principal to the superintendent of the school district which detailed the specific infractions allegedly committed by Pervis. There was no mention of any right to a hearing or to an appeal of the decision. In a letter dated February 15, 1971, McGrue's mother, Mrs. Jackson, was informed of McGrue's suspension for the balance of the term. The letter did not explicate the charges against McGrue. It did state that "if you Mrs. Jackson feel there is further evidence you wish to present in opposition to the suspension please contact me immediately. Further, if you feel the suspension is unjustified you may appeal to the LaMarque Board of Trustees."

With respect both to Pervis and to McGrue no hearing was afforded prior to imposition of the suspension. Only Mrs. Jackson was informed of a right to appeal. Rather than seek relief within the school hierarchy Pervis and McGrue, through their mothers as next friends, filed this suit in federal district court on April 22, 1972. On April 27 the district court refused an order temporarily restraining the appellees from continuing to exclude Pervis and McGrue from school. However, the court did "suggest" that a hearing be conducted by the school authorities at which Pervis and McGrue could defend themselves. That hearing was held on May 4, 1971, at the close of which the Board of Trustees unanimously voted "that the actions and decisions of the principal and the administration be affirmed" with respect to the suspensions of both students. (Hearing Transcript at 197.)

Pervis and McGrue allege that they were disciplined pursuant to Texas Education Code, § 21.301, V.T.C.A., which provides:

"The board of trustees of any school district may suspend from the privileges of the schools any pupil found guilty of incorrigible conduct, but such suspension shall not extend beyond the current term of the school."

In district court the appellants claimed that section 21.301 is unconstitutionally vague in failing adequately to define the term "incorrigible" and that it violates procedural due process in failing affirmatively to require a hearing prior to imposition of a suspension. They sought an injunction against enforcement of the statute, requesting that a three-judge district court be convened pursuant to 28 U.S.C. §§ 2281, 2284. Moreover, appellants contended that the hearing afforded on May 4, 1971, did not serve to remove the taint resulting from the school's failure to grant them a hearing prior to imposing the suspensions.

The district judge held that a three-judge court is not required because, inter alia, there is no substantial question as to section 21.301's constitutionality. Furthermore he concluded that the hearing conducted on May 4 adequately protected appellants' procedural due process rights.

I. The Three-judge Court Issue

Appellees contend that a three-judge district court is not required in this case because Pervis and McGrue were not suspended under direct authority of section 21.301 but rather pursuant to a school disciplinary regulation promulgated under authority of Texas Education Code, § 23.26.¹ Appellees argue that the school regulation does not rise to the level of a state statute or administrative order of state-wide application and that hence no three-judge court need be empaneled. Without reaching the issue whether Pervis and McGrue were punished for violating section 21.301 or the school regulation in question, we hold that a three-judge court is not required. For even assuming that section 21.301 was the source of authority under which appellants were disciplined a three-judge court is not appropriate because there is no substantial question as to the statute's constitutionality.²

Pervis and McGrue remark two constitutional infirmities in section 21.301: (1) The term "incorrigible" is vague; and (2) the statute fails to require a hearing prior to imposition of a suspension. We find both challenges to be insubstantial.

(1) Although the word "incorrigible" is not defined within the four corners of section 21.301, when that statute is read, as it must be, in pari materia with Texas Education Code, § 21.302 the term is adequately fleshed out. Section 21.302 provides in relevant part:

"* * * 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 misbehaves in such a manner as to render himself an incorrigible."

See Schwartz v. Galveston Independent School District, S.D.Tex.1970, 309 F. Supp. 1034, 1045 n. 10; Southern v. Board of Trustees for Dallas Ind. Sch. Dist., N.D.Tex.1970, 318 F.Supp. 355, 359; Bishop v. Houston Independent School Dist., Ct.App.Tex.1930, 119 Tex. 403, 29 S.W.2d 312.

(2) Similarly we cannot accept appellants' argument that section 21.301 is unconstitutional in that it fails to require a hearing. First, we do not agree that the statute completely omits reference to a hearing. The statute provides that a student may be suspended when he is "found guilty of incorrigible conduct." The phrase "found guilty" implies that some type of hearing was contemplated by the framers of the statute.

Second, it is now settled that the quantum and quality of procedural due process to be afforded a student varies with the seriousness of the punishment to be imposed.³ Assuming that section 21.301 is the sole source of power upon which Texas school officials can rely in suspending ill-behaved students, the Constitution requires only that the rules and regulations promulgated by school authorities be drawn with the necessary precision to require a hearing when the punishment to be imposed is serious enough to warrant such.⁴ But if a particular school district fails in that task, a three-judge court is not required to enjoin enforcement of a valid state law, the application of which becomes unconstitutional for lack of a valid local regulation. Appellants' claim in this case—that they were suspended under authority of section 21.301 without adequate procedural due process—amounts to no more than an allegation that the school officials administered a valid statute (section 21.301) in an unconstitutional manner. In that light a three-judge district court is not required. E. g., Phillips v. United States, 1941, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800; Ex parte Bransford, 1940, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249; and cases cited at 1 Barron & Holtzoff, Federal Practice & Procedure § 52 n. 98.1 (Wright ed. 1970); C. Wright, Law of Federal Courts 190 (1970 ed.).

II. The Procedural Due Process Issue

In Dixon v. Alabama State Bd. of...