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No. 00-1233
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IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
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ROOSEVELT FULLER, BY HIS
PARENTS GRETTA FULLER AND
ROOSEVELT HARRIS, et al.,
Plaintiffs-Appellants,
v.
DECATUR PUBLIC SCHOOL
BOARD OF EDUCATION
SCHOOL DISCTRICT 61, et al.,
Defendants-Appellees.
INTEREST OF AMICUS
The National School Boards Association (NSBA) is a nonprofit federation that represents the nation’s 95,000 school board members, who in turn serve more than 90 percent of the K-12 students in the nation.
NSBA has an interest in the effective conduct and implementation of local school board policies, including policies that promote school safety. NSBA has a strong interest in insuring school boards maintain autonomy to implement effective student disciplinary policies that do not infringe on students’ constitutional rights, but recognize the rights of other students to receive an education in a safe environment.
STATEMENT OF THE CASE
On September 17, 1999, six high school students attending three different high schools in the Decatur Public School District were involved in a fight at a football game. Following an investigation, the principals of each of the respective schools recommended to the school board that the students be expelled. Following procedural hearings, the board voted to expel the students. The students filed suit in federal district court. Their allegations were as follows, as set out by the court below:
The students in this case argue that they were expelled by the School Board for a period of two years because of a "zero tolerance" policy which punished them as a group, denied their constitutional rights and was racially motivated. The students additionally argue that they were stereotyped as gang members and racially profiled by the actions of the School Board. The students claim that, because the fight was of a short duration and that no guns, no knives, and no drugs were involved, no expulsion was warranted for their actions in the fight.
Fuller v. Decatur Pub. Sch. Bd. of Educ. Sch. Dist. 61, 78 F.Supp.2d 812, 814 (C.D. Ill. 2000).
The district court upheld the school board’s decision and policies. The students have filed this appeal in the Seventh Circuit of the U.S. Court of Appeals.
SUMMARY OF THE ARGUMENT
It is clear that local school districts hold the authority to enact and enforce student discipline policies. As the Seventh Circuit Court of Appeals noted, "the [Supreme Court] has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 827 (7th Cir.1998) (quoting Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 507 (1969)). Assuming arguendo that the district did have a "zero tolerance policy" which was applied in this case, such policies, per se, do not violate students’ substantive and procedural due process rights. In this case, the board adhered to constitutional procedures and safeguards when it expelled the students, regardless of which particular provision of the disciplinary policy was used in meting out the punishment. As such, even if the board employed a zero tolerance policy, the decision of the lower court should stand.
ARGUMENT
THE DISTRICT COURT CORRECTLY FOUND THAT THE SCHOOL BOARD'S EXPULSION OF THE STUDENTS WAS LEGAL, PROPER AND CONSISTENT WITH STUDENTS' CONSTITUTIONAL RIGHTS.
It is Not the Role of Courts to Set Aside Decisions of School Administrators
The issues raised by the appellants are not new. The Supreme Court, as well as this Circuit, has reviewed cases challenging the authority of school boards to discipline students. In Wood v. Strickland, 420 U.S. 308, 326 (1975), the Supreme Court stated clearly that "[i]t is not the role of the federal courts to set aside decisions of school administrators that the court may view as lacking a basis in wisdom or compassion." See also Lamb v. Panhandle Community Unit Sch. Dist. No. 2, 826 F.2d 526, 530 (7th Cir. 1987); Boucher, 134 F.3d at 827 (7th Cir. 1998) (quoting Tinker, 393 U.S. at 507; Parker v. Trinity High School, 823 F.Supp. 511, 521 (N.D. Ill. 1993).
Public high school students do have substantive and procedural due process rights while at school. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969); Goss v. Lopez, 419 U.S. 565 (1975); Wood v. Strickland, 420 U.S. 308 (1975). However, 42 U.S.C. § 1983 "does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members." Section 1983 was "not intended to be a vehicle for federal court correction of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees." Wood, 420 U.S. at 326; see also Lamb, 826 F.2d at 530; Parker, 823 F.Supp. at 521.
Clearly, the school board members in this case exercised careful judgment in ascertaining the appropriate discipline for the students involved in the violent fight in the football stands. As such, proper discretion should be afforded to that decision.
The School Board Properly Exercised Statutory Powers and Adhered to Constitutional Protections When it Expelled the Students
The school board involved in this case did not abuse its discretion. Moreover, the school board afforded the students adequate constitutional protections when it decided to expel the students for engaging in a violent fight in the football stands in which innocent bystanders were injured. The Illinois Compiled Statutes grant school boards broad discretion to adopt and enforce rules and regulations regarding student conduct. 105 ILCS 5/10-20. Section 10-22.6 allows school boards to expel or suspend students and states in pertinent part:
To expel pupils guilty of gross disobedience or misconduct, and no action shall lie against them for such expulsion. Expulsion shall take place only after the parents have been requested to appear at a meeting of the board, or with a hearing officer appointed by it, to discuss their child's behavior. Such request shall be made by registered or certified mail and shall state the time, place and purpose of the meeting. The board, or a hearing officer appointed by it, at such meeting shall state the reasons for dismissal and the date on which the expulsion is to become effective. If a hearing officer is appointed by the board he shall report to the board a written summary of the evidence heard at the meeting and the board may take such action thereon as it finds appropriate.
In addition, that same section of the compiled statutes allows school boards to expel a student for a definite period of time not to exceed two calendar years, as determined on a case-by-case basis. 105 ILCS 5/10-22.6(d).
Here, each of the students and his parent or guardian was provided notice of a hearing before an independent hearing officer and before the school board. In addition, each one was apprised of the provisions of the discipline policy that they were charged with violating. The evidence showed that the parent or guardian of each of the students received this letter prior to the hearing. Finally, each of the students was presented with an opportunity to be heard and to present his version of the incident to the hearing officer and the school board. These procedures are consistent with constitutional procedural due process requirements. See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975).
ASSUMING ARGUENDO THAT THE DISTRICT APPLIED A ZERO TOLERANCE POLICY IN THIS CASE, SUCH A POLICY, PER SE, DOES NOT VIOLATE STUDENTS' CONSTITUTIONAL RIGHTS
Zero Tolerance Policies Have Been Required By State and Federal Law
In their Amended Complaint, the students alleged the School Board's "no tolerance/zero tolerance policy for violence" violated their procedural and substantive due process rights. Assuming arguendo that the zero tolerance resolution became part of the district's official student discipline policy, that fact would not preclude a judgment in favor of the school district.
A zero tolerance policy is generally defined as a school or district policy that mandates pre-determined consequences or punishment for specific offenses, regardless of the circumstances or disciplinary history of the student involved. Schools generally consider zero tolerance policies for students who make threats of violence, engage in violent behavior, or bring weapons to school. Such a policy might include expulsion or suspension of students who threaten to kill or who seriously assault others and, when appropriate, would quickly provide for psychological evaluation or intervention for these students. A clear and consistent message that threats of violence will not be tolerated may help to reduce the actual occurrence of violence.
Although the term "zero tolerance" is relatively recent in use, the concept is not. Similar policies have been mandated by federal and state authorities throughout the 1990s. In 1990, Congress enacted the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(1)(A). This act made it a federal crime to possess or discharge a firearm in a school zone, with a few exceptions. In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court held that the Gun-Free School Zones Act of 1990, exceeded Congress’s power under the Commerce Clause of the U.S. Constitution. Lopez, 514 U.S. at 551. (The Court determined that possession of a firearm in a school zone did not involve an economic activity that substantially affected interstate commerce.) However, after Lopez, many states enacted legislation to require schools to expel students for serious offenses. Most state legislatures expanded the types of offenses and disciplinary infractions that would lead to expulsion, beyond possession of a firearm. In 1996, the Illinois legislature adopted 105 ILCS 5/10-22.6(d), which requires school boards to expel students for not less than one year for bringing a weapon to school or any school-sponsored activity or event, or any activity or event which bears a reasonable relationship to school.
In 1994, Congress enacted the Gun-Free Schools Act, 20 U.S.C. § 8921. This was the congressional response to Lopez. This time, Congress tied the act to its spending power. The Gun-Free Schools Act requires that schools, as a condition to the receipt of Elementary and Secondary Education Act ("ESEA") funds, have a policy mandating a one-year expulsion for students who bring firearms to school. In response, most school districts have adopted zero tolerance policies.
Many states and school districts have expanded the types of offenses that will be met with a response of zero tolerance. As such, the practice of mandating a particular type of punishment has developed to include infractions beyond bringing firearms to school. As reported by the National Center for Education Statistics:
Nine out of 10 schools reported zero tolerance policies for firearms (94%) and weapons other than firearms (91%). Eighty-seven percent of schools had zero tolerance policies for alcohol and 88% had zero tolerance policies for drugs. Most schools also had zero tolerance policies for violence (79%) and tobacco possession violations (79%).
Indicators of School Crime and Safety (1999). Nonetheless, it is important to note that a policy of zero tolerance does not preclude careful adherence to due process of law.
Courts Have Found That Zero Tolerance Policies Adhere to Procedural Due Process Requirements
Zero tolerance policies must provide for adequate procedural due process commensurate with the severity of the designated consequence. In practice, zero tolerance policies don't change the procedures provided before school officials impose discipline. Although zero tolerance policies are often described as providing "automatic" penalties, due process still must be followed. Students must still be given notice of the charges against them, a fair hearing, an opportunity to be heard, and a decision based on the merits.
In James v. Unified Sch. Dist. No. 512, 899 F.Supp. 530 (D. Kan. 1995), the district court upheld a "zero tolerance policy" against an allegation of a procedural due process violation. In that case, a student was expelled for possession of a firearm on school property. He sought a temporary restraining order requiring the school to permit him to take his final exams, or in the alternative, to be awarded grades earned through the date of expulsion and to be allowed to attend school during the next school year. The court held that the school's expulsion process comported with requirements of procedural due process in that the student was notified of the hearing and the charges against him.
As in James, the evidence in this case showed that the students and their parent(s) or guardian(s) received notice from the Superintendent of Schools, Kenneth Arndt, which stated that a hearing had been set before a hearing officer, gave the date, time and location of the hearing, and stated that the parent or guardian and the student "are herewith requested to appear" at the scheduled hearing. In addition, the letter explained that they could have an attorney and witnesses present. The letter also set forth the provisions of the district's student discipline policy and procedures the students were charged with violating, and a copy of these provisions was attached to each letter. Finally, the letter stated that the administration was recommending expulsion of the student for two years, but that the final decision on expulsion would be made by the school board. Fuller v. Decatur Pub. Sch. Bd. Of Educ. Sch. Dist. 61, 78 F.Supp.2d 812, 817 (C.D. Ill. 2000). Clearly, procedural due process was provided to each of the students and their parent(s) or guardian(s). Although the zero tolerance policy sets the standard for the penalty, the procedural guarantees still remain in place and were clearly afforded in this case.
Courts Have Found That Zero Tolerance Policies Adhere to Substantive Due Process Requirements
It is important for school districts to ensure that the designated consequences of proscribed behavior are consistent with substantive due process considerations. Policies should be carefully constructed and include clear definitions so as to not unintentionally include behavior that the school board does not wish to cover. Basically the rule and punishment must be reasonable, not arbitrary or capricious. Since education is not a fundamental right under the Constitution, in determining whether a student's substantive due process rights have been violated, the proper test is merely whether the government action is rationally related to a legitimate government interest. San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 38-40, 93 S.Ct. 1278, 1299-1301 (1973).
In a case heard by this Court, Smith v. Severn, 129 F.3d 419 (7th Cir. 1997), a parent brought a suit on behalf of a high school student against the school district and the principal, alleging that the student's suspension from school violated the student's rights to substantive due process and equal protection. The student was suspended for violating rules regarding the homecoming lip sync contest, disorderly conduct, bringing a chainsaw to school, insubordination, and gang activity. The Seventh Circuit Court of Appeals relied on both San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), and Pontarelli Limousine, Inc. v. City of Chicago, 929 F.2d 339, 342 (7th Cir. 1991), in applying the rational basis standard to review the challenged action since the right to an education was not guaranteed, explicitly or implicitly, by the Constitution. Under the rational basis test, a state action is entitled to a presumption of validity and will not be disturbed by a court as long as it is rationally related to a legitimate government interest. See Scariano v. Justices of the Sup. Ct. of Ind., 38 F.3d 920, 924 (7th Cir. 1994). As such, the court concluded that the school had a rational basis to suspend the student, and that the student was not similarly situated to the other students who participated in the lip sync contest.
In another recent case involving a violation of a school's drug policy, a student appealed the school board's decision to expel him. The court held that the school board's determination that its policy prohibiting the sale of drugs on school property also proscribed agreement on school property for the sale of marijuana, with the actual exchange of money for drugs occurring off school property, was not an abuse of discretion. Giles v. Brookville Area Sch. Dist., 669 A.2d 1079, 1082 (Pa. Commw. Ct. 1995). In addition, the court held that the one-year expulsion of the student was a proper sanction for selling marijuana. Id. at 1082.
A state supreme court struck down a substantive due process challenge to the school district's expulsion of a student for two semesters in a case involving possession of a knife on school property. In Kolesnick v. Omaha Pub. Sch. Dist., 558 N.W.2d 807 (Neb. 1997), the court held that the expulsion of the student was rationally related to the school district's interest in protecting other students and staff from violence. Moreover, the court determined that no shocking disparity existed between the student's sentence and his offense and that neither the district's adoption of the code of student conduct nor the expulsion of the student was arbitrary or capricious. Kolesnick, 558 N.W. 2d at 813. The student in that case did not engage in any violent behavior, but rather brought a switchblade knife with him on the school bus and carried it throughout the day at school.
Similarly, in a case decided by the Eighth Circuit Court of Appeals, a middle school student and his mother sued the school district and several school officials, alleging substantive and procedural due process violations in connection with the student's suspension and expulsion following a physical confrontation with a teacher. The court held that neither the student's substantive due process rights nor procedural due process rights were violated upon his expulsion for the remainder of the school year. London v. Dewitt Pub. Sch., 194 F.3d 873, 874-5 (8th Cir. 1999). In regard to the substantive due process claim, the court stated that the teacher's conduct in responding to the altercation was not so egregious or unconscionable as to shock the judicial conscience. London, 194 F.3d at 874-875. In reaching that conclusion, the court stated that "we are mindful that effective discipline and order in the schools are vital to the educational process." Id.
In this case, the school district responded appropriately by expelling the students for the remainder of the school year for engaging in a dangerous and violent fight in the football stands. The students were charged with violating rules prohibiting gang-like activities, physical confrontation/physical violence with staff or students and acts that endanger the well being of students, teachers or any school employee(s). They presented no evidence at trial to contradict the evidence presented by the appellees showing that each of these charges was well founded. Certainly, the school board's expulsion was reasonable in light of the seriousness of the fight that occurred at the football game. Seven innocent bystanders were injured as a result of the violent fight perpetrated by the appellants that night. Moreover, about one-half of the spectators at the game had to flee the stands in order to avoid serious injury. Undoubtedly, the punishment was neither arbitrary nor capricious. Rather, the discipline invoked by the school board was rationally related to the board's interest in maintaining safety and order at school functions.
Equal Protection Challenges Against Reasonable Zero Tolerance Policies Have Consistently Failed
Zero tolerance policies are often implemented, in part, to address the concern of discriminatory application of discipline policies. Zero tolerance policies are a way for school districts to ensure that any student, regardless of race, would receive the same punishment for the same inappropriate behavior. In this case, the appellants have alleged that the school district has maintained a policy and practice of arbitrary and discriminatory expulsions of African-American students. However, appellants have failed to show that race played any role in the school board's expulsion decision.
The Supreme Court has held that to "establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." United States v. Armstrong, 517 U.S. 456, 465 (1996) (referring to Ah Sin v. Wittman, 198 U.S. 500 (1905)). In Armstrong, the defendants, who were indicted for selling crack cocaine and using a firearm in connection with drug trafficking, alleged that they were selected for prosecution because they are black. Armstrong, 517 U.S. at 456. However, the claim in Armstrong failed because the study upon which the defendants relied "failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted." Id. at 470. The decision in Armstrong is applicable to civil cases where plaintiffs claim discrimination on the basis of race. Chavez v. Ill. State Police, 27 F.Supp.2d 1053, 1066 (N.D. Ill. 1998). In a race case, "plaintiffs must show that similarly situated individuals of a different race were not subjected to the challenged conduct." Id. at 1066. Similarly, in this case the students have not identified individuals who were not black and could have been disciplined for engaging in the same or similar violent behavior that the appellants engaged in at the football game.
In another case, a middle school student sued the school principal, alleging civil rights, due process and equal protection violations under federal and state law arising out of procedures followed in connection with her expulsion from school for allegedly bringing a bag of marijuana to school. In Dornes v. Lindsey, 18 F.Supp.2d 1086 (C.D. Cal. 1998), the court held that an unsupported statement by the student that she was the only African-American student in her school was insufficient to support a claim of an equal protection violation. The court also held that the student received all process she was due in disciplinary proceedings in that she received adequate notice and a full hearing at which she was present. In reaching its conclusion, the court determined that the plaintiff-student did not present any evidence that she was treated differently because of her race.
Similarly, the students in this case have not shown that they were treated differently than any other student charged with fighting at a school function. As a matter of fact, information regarding the race of the students involved never even appeared on the hearing officers' reports, nor was the school board ever advised of the race of any student facing expulsion. Fuller, 78 F.Supp.2d at 824. As with any disciplinary policy, fair and consistent enforcement of zero tolerance policies is essential. The purpose of zero tolerance policies is to provide identical discipline for circumscribed offenses; thus there is no room for inconsistent administration of punishments. In the case at hand, neither the hearing officer nor the school board was ever advised of the race of any student facing expulsion. Even one of the African-American members of the school board who was called as a witness by the students testified that race was not an issue in the decision to expel the students in this case. Id. In light of the foregoing, the decision of the lower court that the students' equal protection rights were not violated must stand.
Zero Tolerance Policies That Are Executed Properly Are Effective
There are increasing reports that zero tolerance policies can be effective in reducing criminal and violent offenses. In Baltimore, Maryland, the school board adopted an aggressive zero tolerance policy. The policy is credited with producing a 67% decline in arrests and a 31% decline in school crime in September and October 1999, compared with the same time a year earlier. Robert C. Johnson, Decatur Furor Sparks Wider Policy Debate, Education Week, November 24, 1999. In Texas, a survey found that from 1993 to 1998, the percentage of teachers who viewed assaults on students as a "significant problem" dropped from 53% to 31%. The Fight’s Not Over, The New Republic, December 6, 1999. It is during this time that Texas mandated expulsion of students for drugs and weapons on school grounds and at school events.
CONCLUSION
The decision of the district court should be upheld regardless of whether a zero tolerance policy was used to expel the students in this case. Reasonable zero tolerance policies assist school officials in maintaining safety and order in a fair, constitutionally sound manner. Reasonable zero tolerance policies specify what types of conduct will result in the automatic penalty of suspension or expulsion. For lesser violations, aggravating and mitigating circumstances should be taken into consideration. Finally, as with any discipline decision by school officials, all due process procedures must be followed and statutory and constitutional rights protected.
Schools should be able to establish reasonable zero tolerance policies for students who present a danger to others. Students who pose a threat must be dealt with under these policies and this information should be communicated to local law enforcement to assist in preventing violence in the community. The resolution adopted in this case did just that. Schools should work with their community to create partnerships with social service organizations and other service-oriented groups that can provide resources to troubled students.
Schools should not tolerate behavior that would be punished as illegal off campus. Moreover, schools should not be a haven for misbehavior. Schools should be a place where students learn civic responsibility and where appropriate behavior is expected. Our nation's schools should be the safest place in America. As such, school boards and school officials need the authority to respond to student violence swiftly and appropriately. It is equally important that the courts afford them the discretion to do their job of educating responsible, law-abiding citizens.
Amicus requests that this Court affirm the decision of the lower court in this case.
Respectfully Submitted,
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JULIE K. UNDERWOOD*, General Counsel
JULIE E. LEWIS, Staff Attorney
National School Boards Association
1680 Duke Street
Alexandria, VA 22314-3493
(703) 838-6710
*Counsel of Record
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ANTHONY G. SCARIANO
Scariano, Ellch, Himes, Sraga and Petrarca
Two Prudential Plaza, Suite 3100
180 North Stetson
Chicago, IL 60601-6714
(312) 565-3100
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