No 14th Amendment Rights for Students Transferred to Disciplinary Programs

No. 10-60392, 2011 U.S. App. LEXIS 4639 (5th Cir. March 10, 2011)

"A Student Assigned to Alternative Education Program for Disciplinary Reasons Is Not Entitled to Due Process"

By Richard Fossey

Professor and Mike Moses Endowed Chair in Educational Administration,University of North Texas

In Harris v. Pontotoc County School District, the Fifth Circuit Court of Appeals briskly disposed off constitutional and tort claims brought by a terminated school secretary and her son against a Mississippi school district. In doing so, the court reaffirmed an earlier decision holding that high school students have no due process rights when transferred from a regular school program to an alternative education program as a disciplinary measure.

Facts of the Harris Case

Derek Harris was an eighth-grade student at South Pontotoc Middle School; and his mother, Phyllis Harris, was the secretary for the principle of the South Pontotoc Elementary School, which was located on the same campus. In September 2008, Derek and a friend reportedly e-mailed their computer teacher, Terina Dexter, claiming to have hacked into her computer. Later, in the same e-mail message, they told Dexter they were only joking. Two weeks later, Derek sent the teacher another message during computer class that read, “you might need to tell the admin the school is vulnerable to a DoS,” which is an acronym for a denial-of-service attack [p. *2].

Ken Roye, the school district’s superintendent, learned of these messages and asked Melanie Kidd, the school district’s technology coordinator, to investigate. Knowing that Derek sometimes used his mother’s elementary-school computer to send messages, Kidd recovered a log of internet queries from the mother’s computer and discovered that some of the queries related to hacking, key loggers, and denial-of-service attacks.

Shortly thereafter, Derek used his mother’s computer at the elementary school to send a message to Chris Garrard, the middle school’s computer technician, asking Garrard for help in running two batch files and asking him if he had heard of a denial-of-service attack.

At the school district’s request, a computer analyst employed by the Mississippi Department of Education came to the school district to inspect the security of the district’s computer network and possibly speak to Derek. On the morning of the state computer analyst’s arrival, the district began experiencing problems with its computer network, apparently a “denial of service attack” (p. *4). The state worker and Kidd, the school district’s computer technician, removed Mrs. Harris’s computer from the computer network and disconnected the school’s internet connection. School authorities then went to Derek’s computer class, unplugged the computer he was using, and removed him from class for questioning. The district’s network problems ended that same morning.

After an investigation, Derek was suspended from school based on suspicion that he was responsible for what the school called a “pinging” incident to the school district’s computer network. Later, the school board approved Superintendent Roye’s recommendation that Derek be placed in an alternative school for 45 days. In addition, based at least partly on teachers’ concerns that personal information might have been compromised by Derek having access to his mother’s work computer, Superintendent Roye reassigned Mrs. Harris to an assistant teacher’s position. According to the school district, Roye took this action to limit Mrs. Harris’s access to computers containing confidential information.

When Mrs. Harris learned about her reassignment, she left work and returned home. Her husband telephoned Superintendent Roye to protest the change in Mrs. Harris’s assignment. At some point, Mrs. Harris allegedly grabbed the phone and called Roye “a liar” (p. *7). Roye terminated Mrs. Harris’s employment over the phone.

The Harrises then sued the school district claiming that Derek had been defamed by some school teachers and had been denied due process in the way he was disciplined. Mrs. Harris also claimed that her constitutional right to to freedom of speech was violated because she was fired in retaliation for protesting the actions taken against her son and for threatening legal action against the district. Mrs. Harris also claimed that Superintendent Roye had tortiously interfered with her employment contract.

Fifth Circuit’s Opinion

A federal trial court dismissed all claims brought by Derek and his mother on a motion for summary judgment. On appeal, the Fifth Circuit affirmed. Regarding Mrs. Harris’s First Amendment claim, the Fifth Circuit ruled that she was speaking to Superintendent Roye about personal matters and not matters of public concern. Thus, under the doctrine articulated by the U.S. Supreme Court in Connick v. Myers, 461 U.S. 138 (1983), her speech did not implicate the First Amendment. As for her tortuous-interference-with-contract claim against Roye, the court ruled that he could not be sued under such a theory because he was in essence a party to Mrs. Harris’s employment contract and acting within the scope of his authority.

Derek claimed that he had been defamed by teachers who had made comments that he was a “hacker” and had changed grades; but the Fifth Circuit upheld the trial court’s decision to dismiss Derek’s defamation claims. According to the Fifth Circuit, the allegedly defamatory remarks that were made about him were either hearsay or were comments made directly to him. A statement was not defamatory, the court said, unless communicated to a third party.

Finally, the Fifth Circuit rejected Derek’s due process claims. Regarding his temporary suspension, the court ruled that he had received all the due process to which he was entitled under Goss v. Lopez, 419 U.S. 565 (1975). “He received the written charges on the day he was suspended” (p. *11); and “Derek and his parents had numerous opportunities to meet with school officials, to hear some of the charges, and to explain and respond” (p. *11). Thus, Derek had been given adequate notice of the charges against him and an opportunity to present his side of the story.

As to the school board’s decision to transfer Derek to an alternative school for 45 days, the court ruled that Derek was entitled to no due process whatsoever. “A student’s transfer to an alternative education program does not deny access to public education,” the court ruled, “and therefore does not violate a Fourteenth Amendment interest” (pp. *8-9).

Significance of the Harris Case

The Fifth Circuit’s Harris decision is the latest in a long line of school-friendly decisions by the Fifth Circuit. In case after case, over a course of 40 years, the Fifth Circuit has upheld school districts against a variety of claims brought by students or their parents. In 1972, for example, the court ruled that students have no constitutional right to choose the length of their hair, setting itself against decisions by other circuit courts. Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972). The Fifth Circuit upheld school uniform policies in two decisions, Canady v. Bossier Parish School Board, 240 F.3d 437 (5th Cir. 2001) and Littlefield v. Forney Independent School District, F3d 275268 (5th Cir. 2001); and it supported a Texas school district’s dress code prohibiting messages on students’ clothing, Palmer v. Waxahachie Independent School District, 579 F.3d 502 (5th Cir. 2009). Harris, then, is typical of the brisk way that the Fifth Circuit has disposed of claims against school districts that the court considers to be without merit.

Perhaps the Harris case is most significant for its reaffirmation of an earlier decision holding that students are not denied access to public education when they are transferred from a regular school program to an alternative education program and thus are not entitled to procedurals due process when such transfers ares made. The court had previously ruled on this point in Nevares v. San Marcos Consolidated School District, 111 F.3d 25 (5th Cir. 1997).

In The Educator’s Guide to Texas School Law (6th edition 2005), Walsh, Kemerer, and Maniotis summarized the Nevares case as follows: “[A]s far as federal law is concerned, students assigned to DAEP [Disciplinary Alternative Education Program] are not entitled to any kind of hearing, not even an informal Goss v. Lopez-type hearing. This would appear to close the door to suits alleging a violation of federal due process based on DAEP assignments” (p. 312).

In the Harris decision, the Fifth Circuit reiterated the point made in Nevares. In the Fifth Circuit, a student who is transferred to an alternative education program as a disciplinary measure is not entitled to due process under the Fourteenth Amendment.