Remer v. Burlington Area School Dist., 01-2654.
| Decision Date | 16 April 2002 |
| Docket Number | No. 01-2654.,01-2654. |
| Citation | 286 F.3d 1007 |
| Parties | Sandra REMER, parent of a minor son, M.R., Plaintiff-Appellant, v. BURLINGTON AREA SCHOOL DISTRICT, Larry Anderson, William C. Campbell, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Willie J. Nunnery (argued), Madison, WI, for Plaintiff-Appellant.
Mitchell S. Moser (argued), Quarles & Brady, Milwaukee, WI, for Defendants-Appellees.
Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit Judges.
Sandra Remer brought this action on behalf of her son, M.R., claiming that his expulsion from school had violated his procedural and substantive due process rights. The district court granted the defendants' motion for summary judgment and dismissed the action. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
In November 1998, school and law enforcement officials in Burlington, Wisconsin, learned from a confidential informant that five high school students were planning to enter Burlington High School with guns and shoot several students and school officials. M.R., a minor, was one of the students implicated in the conspiracy. Ms. Remer is M.R.'s mother. Three of the students were detained and prosecuted, but M.R. and another were not. The statements of the conspirators indicated that M.R. had withdrawn from the conspiracy.
Although M.R. was not criminally prosecuted, the school district suspended him. The suspension was to last until December 8, 1998. The superintendent of the Burlington Area School District notified M.R., by letter dated November 24, 1998, that the district would hold a hearing on school district property on December 1, 1998, to determine whether he should be expelled for his participation in the conspiracy. The school district also obtained a temporary restraining order (TRO) to keep M.R. from school district property "for as long as [M.R. was] suspended and for the length of any future expulsion." R.8, Ex.I, at 2. A hearing concerning the TRO was set for November 30, but, when the court was not able to hold the hearing on that date, M.R. and the school district agreed that the TRO "shall be extended and remain in force" until a hearing could be held. R.8, Ex.J. A court thereafter extended the TRO in terms identical to those of the original TRO, "for as long as [M.R. was] suspended and for the length of any future expulsion." R.8, Ex.K, at 2.
On December 1, 1998, the day of the expulsion hearing, the district's counsel faxed counsel for M.R. a message to reassure counsel for M.R. that it would be appropriate for M.R. to attend the expulsion hearing notwithstanding the TRO restricting M.R. from school district property. The message stated that the TRO would remain in force, but that "because we want the hearing to be in an appropriate and comfortable setting for all parties, including your client, we want to make it clear that we have invited your client to the hearing tonight and that it is appropriate for him to attend." R.8, Ex.L. The message also stated that it was the district's position that M.R.'s attendance would not violate the TRO because, according to the message, the TRO would expire the night of the expulsion hearing. By its terms, however, the TRO was to last for the length of M.R.'s suspension, which was to last until December 8 — one week after the expulsion hearing. M.R. did not attend the hearing, which was held as scheduled on December 1.
At the school board hearing, Principal Jose Martinez, who had been informed by the police that he was an intended target of the conspiracy, recommended that M.R. be expelled and submitted the evidence in his possession. This evidence included a copy of the delinquency petition filed by the District Attorney's office against one of M.R.'s co-conspirators and Principal Martinez's verbal summary of information that the police had shared with him after hearing from the confidential informant and obtaining the confessions of all five co-conspirators. Principal Martinez informed the school board that M.R. had withdrawn from the plan, but as the minutes of the hearing indicate "[i]t was also acknowledged that [M.R.] after backing out of the plot did not communicate with school or police officials to inform them of the planned events." R.8, Ex.N, at 2. Even though Principal Martinez had information that the District Attorney was not going to prosecute M.R., he did not so inform the school board. After deliberating, the school board voted to expel M.R. from the schools of the district from December 1, 1998, to April 26, 2003. The practical effect of expelling M.R. until 2003 was to preclude permanently M.R.'s education in the schools of the district.
Ms. Remer sued the Burlington Area School District and several members of the Burlington School Board, claiming that the defendants had violated M.R.'s procedural and substantive due process rights in expelling M.R. from the district's schools. The district court granted the defendants' motions for summary judgment, holding that the defendants had afforded M.R. a reasonable opportunity to be heard and that the expulsion was not unreasonable. The district court further held that, even if a due process violation had occurred, the individual defendants were entitled to qualified immunity.
We review de novo the district court's grant of summary judgment. See Thomas v. Pearle Vision, Inc., 251 F.3d 1132, 1136 (7th Cir.2001). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Children in Wisconsin have a right to free public education until the age of 20. See Wis. Const. Art. 10 § 3. Having provided for the right to education, Wisconsin "may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred." Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). To comport with due process, expulsion procedures must provide the student with a meaningful opportunity to be heard. Linwood v. Bd. of Educ., 463 F.2d 763, 769-70 (7th Cir.1972). The proceedings need not, however, "take the form of a judicial or quasi-judicial trial." Id. at 770. As long as the student is given notice of the charges against him, notice of the time of the hearing and a full opportunity to be heard, the expulsion procedures do not offend due process requirements. Betts v. Bd. of Educ., 466 F.2d 629, 633 (7th Cir.1972).
Ms. Remer does not contest that M.R. was given notice of the charges and the time of the hearing. Rather, she submits that M.R. was not given a meaningful opportunity to be heard because the hearing was held on school district property and the TRO prevented M.R. from coming to the school. On the day of the expulsion hearing, the school district's counsel faxed counsel for M.R. a message encouraging M.R. to attend the hearing and stating that it was the District's position that M.R.'s attendance would not be in violation of the TRO because the TRO was set to expire on the night of the expulsion hearing. The TRO, however, was to last at least "as long as [M.R. was] suspended," R.8, Ex.I, at 2, and M.R.'s suspension was to last until December 8 — one week after the expulsion hearing. Despite the assurances of the district's counsel, then, the TRO was still in effect on the night of the expulsion hearing.
The district's counsel was very clear, however, that the district invited M.R. to attend and that it would be appropriate for him to do so.
Although we have entered into the Extended TRO which would prohibit your client from approaching or entering the Middle School, the District has expressly invited your client to the Middle School tonight for the express purpose of the expulsion hearing. The Extended TRO will remain in force ...; still, because we want the hearing to be in an appropriate and comfortable setting for all parties, including your client, we want to make it clear that we have invited your client to the hearing tonight and that it is appropriate for him to attend.
R.8, Ex.L. Notwithstanding the invitation, neither M.R., his parents nor his attorney attended the hearing.
Notably, Ms. Remer did not claim in the district court that it was the TRO that kept M.R. away from the hearing.1 Rather, she admitted that "nothing prevented M.R. or his parents or counsel from attending." R.46, at 5, ¶ 21; R.50, at 4 (admission).2 Moreover, by its terms, the TRO did not apply to M.R.'s attorney and therefore did not prevent his attending the hearing and objecting to the holding of the hearing on school property. Nor is there any indication that M.R.'s attorney wrote to the school board and made such an objection or that the attorney made an application to the court that had issued the TRO to obtain permission for M.R. to attend the hearing on school property. Indeed, as far as the record indicates, it was not until January 11, 1999, six weeks after the hearing, that M.R.'s newly acquired attorney sent the school district superintendent a letter requesting a new hearing for M.R. on the ground that M.R. had not been able to attend the December 1 hearing because of the TRO. Counsel for the school board responded to the January 11 letter, stating that M.R.'s counsel had "indicated before the expulsion hearing that [M.R.] would not be attending, for reasons completely unrelated to the Extended Temporary Restraining Order." R.49, Ex.15. The school board's findings of fact, which it...
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