Smith on Behalf of Smith v. Severn, 96-1563

Decision Date13 November 1997
Docket NumberNo. 96-1563,96-1563
Citation129 F.3d 419
Parties, 122 Ed. Law Rep. 106 Cheryl SMITH, individually and on Behalf of Brandon SMITH and Dustin Smith, minors, * Plaintiff-Appellant, v. Karen SEVERN and North Boone Community School District 200, Boone County, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

George C. Pontikes, Pontikes & Associates, Chicago, IL, April N. Sochan (argued), Bowie, MD, for Plaintiff-Appellant.

James P. Bartley, Scott F. Uhler (argued), Michele M. McGee, Klein, Thorpe & Jenkins, Chicago, IL, for Defendants-Appellees.

Before CUDAHY, KANNE and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

A mother, on behalf of her teenage son, claims that his three-day suspension from high school for using a chain saw and a boa constrictor to disrupt a school assembly violated his Constitutional rights of due process and equal protection.


In 1994 Brandon Smith was a senior at North Boone High School in Boone County, Illinois. On October 14 of that year Brandon participated in a lip sync 1 contest at North Boone's homecoming school assembly. Prior to the contest, the school officials notified all students that anyone wishing to participate was required to sign up in advance and obtain prior approval for his or her particular lip sync routine.

There was an effort in 1994 to increase control over the homecoming lip sync contest because in the fall of 1993, several students engaged in lip sync performances that were determined to be inappropriate for a school assembly (i.e., repeated crotch grabbing and other tasteless conduct). Brandon and several of his friends who participated in the 1993 lip sync performance were disqualified from the contest and were verbally admonished by faculty members at that time.

Undeterred by the disapproval of his conduct in 1993, Brandon and some of his classmates decided to participate in the 1994 homecoming lip sync contest--without signing up or obtaining any other form of prior approval. In order to keep their surprise performance unknown to the North Boone administrators and faculty, they concocted a plan. Another group signed up for the lip sync event explaining that they would perform a number from the musical "Grease." While the "Grease" lip sync was in progress, Brandon and friends, disguised by face make-up, body paint, and torn clothing would come from backstage and begin their own lip sync performance, chasing the other group from the stage.

The plan was carried out and immediately after taking the stage, Brandon and his friends began their lip sync rendition of "Angel of Death," originally performed by the group "Slayer." In the performance, Brandon and his group made a mock attack on a woman and her child. After the woman was knocked to the ground, Brandon produced a chain saw which he lifted to his groin area in simulation of an erect penis. He then approached the woman and child and pretended to mutilate the woman with the chain saw while his friends joined in beating her with their guitars.

Reacting to the performance, teachers attempted to stop it by closing the stage curtain. Brandon was not to be constrained, however, and he came around the partially-closed stage curtain, produced a live boa constrictor and pretended he was going to throw the snake into the assembly audience of students, parents, and faculty.

Prior to Brandon's performance, Barb Fedderson, the faculty member responsible for the lip sync contest, was backstage. According to Fedderson, just seconds before the "Grease" lip sync performance began she saw Brandon preparing to take the stage. Because it was only moments before the lip sync was to begin, Fedderson made eye contact with Brandon and told him "don't do anything you'll regret." According to Fedderson she did not see that Brandon had a chain saw or a snake.

North Boone school principal Karen Severn was also present at the homecoming assembly. Following Brandon's stage appearance, she decided to call a meeting to evaluate Brandon's conduct. The lip sync contest took place on Friday afternoon, October 14, and Severn contacted Brandon's mother, Cheryl Smith, on Monday, October 17, setting a meeting for the following day, Tuesday, October 18. At the meeting on October 18, a discussion was held involving Severn, Fedderson, Mrs. Smith, and Brandon. A video tape of the lip sync contest was viewed. Fedderson reaffirmed that only moments before Brandon took the stage she had told him "don't do anything you'll regret." Additionally, Brandon and Mrs. Smith were also given the opportunity to ask questions and discuss their version of the incident. At the conclusion of the meeting, Severn told Mrs. Smith and Brandon that she was suspending Brandon for three days for his insubordinate conduct. She determined that Brandon had violated the established rule that all lip sync performers must sign up prior to their participation, and that he had failed to heed Mrs. Fedderson's warning that he should refrain from doing anything that would be in violation of school regulations. Beyond the verbal notice of suspension and articulation of the basis for the action, Severn did not, at that time, give Mrs. Smith or Brandon any written notice that Brandon was being suspended or that Brandon could appeal his suspension.

Following the October 18 meeting, Severn sent Mrs. Smith a notice of suspension. The notice provided, in pertinent part, "Brandon is being suspended a half day on October 18 and 19 and a whole day on October 20 and 21, for a total of three days." The reasons listed for the suspension were: 1) disorderly conduct; 2) weapons (identified as the chain saw); 3) insubordination (described as a refusal to obey a request of a teacher); and 4) gang activity (specified as a display of gang symbols). Lastly, the notice had a heading in capital letters entitled "HEARING CONCERNING THIS SUSPENSION." Directly beneath this heading, the notice stated that a parent may request review of any suspension by contacting Severn. The notice further stated that the review of the suspension shall be held by the board of education or its appointed hearing officer and shall be scheduled promptly.

In response to this written notice, Mrs. Smith sent Severn a letter in which she stated that she would appeal Brandon's suspension and requested a hearing by the school board "as outlined in the Discipline Code of North Boone High School." 2 The letter further specified that Mrs. Smith was "appealing the suspension itself and the fact that the proper procedure was not followed according to the 'Due process and Appeal Process' outlined in the Disciplinary Code."

An appeal hearing was conducted before the school board on January 24, 1995. Among those present at the hearing were Mrs. Smith, her attorney, Brandon, Severn, an attorney representing the North Boone High School, and several student witnesses. Severn testified that prior to the lip sync contest, all students wishing to participate were supposed to sign up and have their performances approved by the event sponsor. According to the testimony of Severn, no faculty member or sponsor had any idea that Brandon and his friends intended to interrupt the lip sync performance to the musical "Grease." Once Severn realized what was occurring on stage, she closed the stage curtain before Brandon and friends could complete their performance.

Severn further testified that whenever a student has been suspended that student must make-up the work that was missed while the student was absent. The made-up work is graded and then calculated into that student's grade in each class. A suspension, therefore, is treated as an excused absence in that students are not penalized for their absence, except that they miss the benefits of in-class participation, just as if those students were absent due to illness.

This was not Brandon's first suspension in his high school career; in fact, he had been previously suspended on several occasions. During his Senior year he had numerous excused and unexcused absences from school. Nevertheless, this suspension arguably did have some affect on his grades in two classes. In English literature, Brandon missed a movie that the class was required to view and then write a paper based on the content of that film. Brandon, nevertheless, submitted a paper without viewing the movie. His poor performance on this paper resulted in his overall class grade dropping from a B- to a C+. Although Brandon denies ever having the opportunity to see the film, his English Literature teacher, Michelle McShane-Rife, submitted an affidavit stating that Brandon was offered the opportunity to view the film prior to the submission of his paper but made no attempt to do so.

Brandon's suspension also affected his grade in his physical education class. Points are awarded in this class for daily participation. No points are awarded when a student is absent, regardless of whether that absence is due to a suspension, illness, or any other reason. As a result of his absence from physical education class, Brandon's lost three days worth of class participation points.

Brandon graduated from North Boone High School-but with a federal case pending of purported constitutional dimension.


Mrs. Smith turned to the courts to redress these perceived wrongs the three-day suspension visited upon her son. She claims that there was a denial of due process and equal protection rights as guaranteed by the Illinois and Federal Constitutions. 3 The action was initially brought in the Circuit Court of Boone County, Illinois. The case was subsequently removed to the United States District Court for the Northern District of Illinois by Severn and the school board on April 17, 1995. The three count complaint involved two counts brought pursuant to 42 U.S.C. § 1983 (Counts II and III) and a supplemental state claim (Count I)....

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