Christian Heyne v. Metropolitan Nashville Board of Public Education

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 16, 2012 Session

CHRISTIAN HEYNE ET AL. v. METROPOLITAN NASHVILLE BOARD

OF PUBLIC EDUCATION

Appeal by Permission from the Court of Appeals

Chancery Court for Davidson County

No. 09-136-III Ellen Hobbs Lyle, Chancellor

No. M2010-00237-SC-R11-CV - Filed September 27, 2012

This appeal involves the scope of the procedural due process rights of a public high school

student facing discipline for an infraction of school rules of conduct. After injuring a

younger student with his automobile on school property, the student was cited for an

infraction of the student conduct rule proscribing reckless endangerment. The principal’s

decision to suspend the student for ten days was upheld by a hearing board and a designee

of the director of schools, and the school board declined to review the matter. Thereafter,

the student and his family filed a petition for common-law writ of certiorari in the Chancery

Court for Davidson County seeking judicial review of the disciplinary decision. Following

a hearing during which the trial court permitted the student and his family to present evidence

regarding allegedly arbitrary, capricious, and illegal conduct by school officials that was not

reflected in the record of the disciplinary proceedings, the trial court found that the school

officials had violated the student’s procedural due process rights because one official had

performed both prosecutorial and decision-making functions and because this official was

biased against the student. The trial court also determined that the evidence did not support

the conclusion that the student’s conduct amounted to reckless endangerment. Accordingly,

the trial court directed the school system to expunge the student’s record and awarded the

student and his family $371,845.25 in attorneys’ fees and $25,626.27 in costs. The Board

of Education appealed, and the Court of Appeals reversed the trial court’s judgments. Heyne

v. Metropolitan Nashville Bd. of Pub. Educ., No. M2010-00237-COA-R3-CV, 2011 WL

1744239 (Tenn. Ct. App. May 6, 2011). We affirm the judgment of the Court of Appeals.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Affirmed

W ILLIAM C. K OCH, JR., J., delivered the opinion of the Court, in which C ORNELIA A. C LARK,

C.J., JANICE M. H OLDER, G ARY R. W ADE, and S HARON G. L EE, JJ., joined.

Philip N. Elbert, Jeffrey H. Gibson, and Meghan C. Dougherty, Nashville, Tennessee, for the

appellants, Christian Heyne, William Heyne, and Robin Heyne.

Wm. Michael Safley, Deputy Director of Law; J. Brooks Fox and Christopher M. Lackey,

Assistant Metropolitan Attorneys, Nashville, Tennessee, for the appellee, Metropolitan

Nashville Board of Public Education.

Richard L. Colbert and Courtney L. Wilbert, Franklin, Tennessee, for the Amicus Curiae,

Tennessee Education Association.

Randall G. Bennett and Joel H. Moseley, Jr., Nashville, Tennessee, for the Amicus Curiae,

Tennessee School Boards Association.

Charles W. Cagle and Angela C. Sanders, Nashville, Tennessee, for the Amicus Curiae,

Tennessee Organization of School Superintendents.

OPINION

I.

This dispute arises from an incident that occurred on Friday, September 5, 2008, at

Hillsboro High School in Nashville. Following an afternoon film session for the varsity

football team, several groups of players had assembled in a narrow parking lot behind the

locker room to talk about their plans for the weekend and to wait for their rides home.

Christian Heyne, an eighteen-year-old senior and co-captain of the football team, was

standing with one group of players when he overheard his name mentioned by another group

of mostly freshman football players. Mr. Heyne believed that the freshman players were

joking about him. Mr. Heyne got into his Lexus automobile, rolled down the windows, and

turned on his music “a little bit.” Then he pulled up to another player’s parked automobile.

Following a brief conversation with the other player, Mr. Heyne put his automobile in reverse

and backed up in preparation to leave the parking lot. The group of freshman players were

standing between Mr. Heyne and the exit. Instead of coming to a complete stop after backing

up, Mr. Heyne shifted directly from reverse to drive, causing his automobile to lurch forward

in the direction of the group of freshman football players.

The freshman players quickly scattered to get out of Mr. Heyne’s way because two

days earlier, Mr. Heyne had swerved his automobile toward two freshmen, forcing them to

jump out of the way. All of the freshman players were able to get out of the way of Mr.

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Heyne’s automobile except for Denzel A.1 Mr. Heyne eventually brought his automobile to

a stop, but not before the left front tire of his automobile pinned Denzel A.’s foot, causing

Denzel A. to fall down.

Mr. Heyne backed up and stopped his automobile. He got out and approached Denzel

A. to find out if he was hurt. Denzel A. was upset and, according to several bystanders,

threatened Mr. Heyne. Mr. Heyne returned to his automobile and drove away, but in the

process, he ran over Denzel A.’s backpack that had fallen under Mr. Heyne’s automobile.

While at least one parent witnessed the incident, no coaches or other school officials

were present. After Mr. Heyne drove away, Denzel A. and six other students found Roderick

L. Manuel, Hillsboro High School’s principal, in his office and described the incident to him.

Mr. Manuel placed a telephone call to William Heyne, Mr. Heyne’s father, but was told that

he was out of town. When Mr. Manuel learned that Mr. Heyne’s father was out of town, he

discussed the incident with Robin Heyne, Mr. Heyne’s mother.

Mr. Manuel also requested Denzel A.’s parents to come to the school. Denzel A.’s

parents picked up their son at school and took him to the emergency room at Vanderbilt

Children’s Hospital. X-rays were taken, and the attending physician diagnosed Denzel A.’s

injuries as a contusion and an ankle sprain. Denzel A.’s parents also notified the police about

what had happened to their son. The police instructed them to consult with the school

resource officer. Denzel A.’s parents returned to the school on Monday, September 8, 2008,

to speak with the school resource officer about the incident.

Mr. Heyne was a high-profile student at Hillsboro High School, and his parents were

very active in activities at the school. Mr. Manuel met with Mr. Heyne and his father on

Monday, September 8, 2008. When Mr. Manuel asked Mr. Heyne to write down his version

of the incident, Mr. Heyne’s father handed Mr. Manuel a written statement that his son had

already prepared. Mr. Heyne’s father also provided Mr. Manuel with the written statements

of two other students that Mr. Heyne’s mother obtained following the incident. Mr. Manuel

informed Mr. Heyne and his father that he would continue to investigate the incident and that

he would contact them at a later date. He also instructed Mr. Heyne to refrain from bringing

his automobile onto the campus. Mr. Heyne and his father agreed to this request.

On Tuesday, September 9, 2008, Mr. Manuel met again with Mr. Heyne’s father and

later in the afternoon with both of Mr. Heyne’s parents. During the first meeting, Mr.

Heyne’s father suggested that his son was merely hazing the freshmen. Mr. Manuel told Mr.

1

Because these events occurred when Denzel A. was a juvenile, we will not use his surname in this

opinion.

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Heyne’s parents that he was attempting to obtain a statement from a parent who had

witnessed the incident. Mr. Manuel also suspended Mr. Heyne for two days pending further

investigation.

Mr. Manuel continued to gather information about the incident. On September 11,

2008, after consulting with officials at the central office of the Metropolitan Nashville Public

Schools (“MNPS”),2 Mr. Manuel determined that Mr. Heyne’s conduct violated three

provisions of the Student-Parent Code of Conduct and Handbook.3

Based on his investigation and his assessment of the seriousness of Mr. Heyne’s

infractions of the rules, Mr. Manuel finally decided that Mr. Heyne should receive a ten-day

out-of-school suspension.4 However, because the Student-Parent Code of Conduct and

Handbook required infractions of Rule 4, Code 44 to “be referred to a disciplinary

coordinator and could lead to possible expulsion,” Mr. Manuel notified Mr. Heyne’s parents

by telephone and in writing that they had a right to request a hearing with regard to their

son’s disciplinary infractions and his punishment. Mr. Manuel’s written notice to the Heynes

stated that they could request a hearing regarding their son’s decision by contacting Fran

Perry, the Coordinator of Student Disciplinary Referrals assigned to Hillsboro High School.

Mr. Heyne’s parents appealed Mr. Manuel’s decision. A hearing was held on

September 23, 2008, before a four-person hearing board.5 Ms. Perry convened and presided

2

Mr. Manuel discussed this matter with Assistant Superintendent of Schools James Briggs, Director

of Attendance and Discipline Alvin Jones, and Fran Perry, the Disciplinary Coordinator assigned to Hillsboro

High School.

3

Mr. Manuel determined that Mr. Heyne’s conduct amounted to (1) reckless endangerment in

violation of Rule 1, Code 8; (2) driving his automobile in a threatening/assaultive manner in violation of Rule

4, Code 44; and (3) cruelty/abusiveness to a student in violation of Rule 9, Code 66. On the notice of

disciplinary action, Mr. Manuel also stated: “Reckless endangerment. Endangering the lives of fellow

students with a vehicle. Several witnesses support the allegation that Christian used his vehicle in a reckless

manner. A student was injured as a result of his reckless driving on campus.”

4

According to the Student-Parent Code of Conduct and Handbook, “[d]isciplinary action may occur

at the school level and the central office level.” Principals have the authority to impose discipline up to a

ten-day suspension. Tenn. Code Ann. § 49-6-3401(c)(2) (Supp. 2011). However, if the principal determines

that a particular infraction warrants expulsion or that a suspension of longer than ten days is warranted, the

student’s parents or guardians must be given an opportunity to appeal the principal’s decision. Tenn. Code

Ann. § 49-6-3401(c)(4)(B).

5

The board included Ms. Perry; Dr. Shuler Pelhan, the executive principal of John Overton High

School; Roosevelt Sanders, Jr., an assistant principal at Glencliff High School; and Cindy Minnis, a school

(continued...)

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over the hearing. During this hearing, the attorneys retained by the Heynes presented a letter

arguing their clients’ case, along with 135 pages of witness statements, character references,

and other documents. Mr. Heyne’s father was also permitted to address the hearing board

and to question Mr. Manuel.6 During this hearing, Mr. Heyne’s father characterized the

incident as “just a negligent accident that happened.”

At the conclusion of the hearing, the hearing board, consistent with the Student-Parent

Code of Conduct and Handbook, deliberated behind closed doors. Following their

deliberations, Ms. Perry announced that she and the other board members had unanimously

concluded that Mr. Heyne’s conduct amounted to reckless endangerment in violation of Rule

1, Code 8 and that the ten-day suspension that Mr. Heyne had already served, coupled with

probation for the remainder of the school year, was appropriate punishment for the infraction.

On September 24, 2008, Ms. Perry and the MNPS Director of Attendance and

Discipline sent a letter to Mr. Heyne’s parents informing them of the results of the hearing.

This letter stated that the hearing board had found:

1. That Christian drove his vehicle into a crowd of 9th

grade football players who were milling around on a

school parking lot.

2. That all but one of the students scattered out of the path

of the vehicle.

3. That one of Christian’s wheels rolled onto the student’s

foot/ankle.

4. [That] [t]he student’s foot/ankle was injured.

5. That Christian’s behavior was reckless.

The letter also informed the Heynes of the conditions of their son’s probation and informed

them that they had the right to appeal the hearing board’s decision to the Director of Schools

or the Director’s designee.

5

(...continued)

psychologist and guidance counselor.

6

The Student-Parent Code of Conduct and Handbook states explicitly that “[t]he student may speak

in his/her own behalf and may be questioned on his/her testimony.” Accordingly, the attorneys retained by

Mr. Heyne’s parents were permitted to attend the hearing but were not permitted to actively participate in

the hearing.

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The Heynes pursued their second administrative appeal, which was heard by Mary

Chambers, MNPS Discipline Coordinator and the Director’s designee. In a lengthy letter

setting out the Heynes’ arguments, their lawyers set forth their version of the facts, extolled

Mr. Heyne’s accomplishments, complained about procedural irregularities in the

proceedings, and even argued that “these proceedings may have been improperly influenced

by the parents of the fellow student who claims to have been injured by Christian, who are

demanding that large sums of money be paid by Christian’s family.”

The hearing before Ms. Chambers took place on October 27, 2008. Mr. Heyne, his

father, and the Heynes’ lawyers actively participated in this hearing. In addition to the

already voluminous administrative record, they submitted 163 pages of documents to Ms.

Chambers. Mr. Heyne gave his version of the September 5, 2008 incident and began to

address the similar incident that had occurred two days earlier on September 3, 2008, until

his father interrupted him, saying “You’re getting off the point here.”

On October 30, 2008, Ms. Chambers notified Mr. Heyne’s parents by mail that she

concurred with the findings of the hearing committee and supported their recommendations.

Thus, she sustained Mr. Heyne’s ten-day suspension and the decision to place him on

probation for the remainder of the school year. She also informed the Heynes of their right

to pursue a discretionary appeal of her decision to the Metropolitan Nashville Board of

Education. Mr. Heyne and his parents appealed to the Board of Education.

A committee of Board members, including the chair of the Board, reviewed the

administrative record and reported to the full Board that Mr. Heyne’s ten-day suspension and

probation were appropriate. Accordingly, on November 26, 2008, the Board of Education

denied the Heynes’ request to appeal. As a result of the Board’s decision, Mr. Heyne’s ten-

day suspension and probation remained in effect.

On January 22, 2009, Mr. Heyne and his parents filed suit in the Chancery Court for

Davidson County. In their original petition and an amended petition filed on April 1, 2009,

they asserted that the disciplinary proceedings were arbitrary, capricious, and illegal. They

also claimed that the disciplinary proceeding against Mr. Heyne violated his due process and

equal protection rights.

The trial court filed an order on August 4, 2009, narrowing the scope of the

proceeding to that available under a petition for common-law writ of certiorari. On

September 4, 2009, the Heynes filed a second lawsuit against not only the MNPS but also

against Mr. Manuel, Ms. Perry, Ms. Chambers, Mr. Jones, and two other school officials in

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their official and individual capacities.7 This complaint, and the amended complaint naming

additional defendants filed on September 10, 2009, sought injunctive relief and compensatory

and punitive damages against the defendants for violating 42 U.S.C. § 1983 and for “their

malicious, intentional, or reckless actions in improperly disciplining [Mr. Heyne].”

On October 23, 2009, the Heynes sought permission to file a second amended petition

in their original certiorari proceeding. In addition to their request for review of the school

system’s decision to suspend Mr. Heyne for ten days, the Heynes included an allegation that

the Board of Education had violated 42 U.S.C. § 1983 and that they were entitled to

reasonable attorneys’ fees under 42 U.S.C. § 1988. As a result of the addition of the new

claims based on 42 U.S.C. § 1983, the Board of Education gave notice on October 20, 2009

that it was removing the case to the United States District Court for the Middle District of

Tennessee.8

On November 3, 2009, the Heynes filed an emergency motion requesting the United

States District Court to remand the case back to the state courts to enable the trial court to

conduct a hearing in accordance with their claim for relief pursuant to a common-law writ

of certiorari. On November 10, 2009, the United States District Court remanded part of the

case back to the state trial court based on the Heynes’ representations “that they do not intend

to seek relief in the Chancery Court for constitutional violations or any federal claim.” 9 On

December 17, 2009, after the case was returned from the United States District Court, the

trial court struck any reference to 42 U.S.C. § 1983 from the Heynes’ pleadings.

7

These officials were Ralph Thompson, the Assistant Superintendent for Student Services, and Chris

Henson, the interim Director of the MNPS.

8

The Board of Education also removed to federal court the complaint the Heynes filed on September

4, 2009. While the United States District Court later dismissed many of these claims, it declined to dismiss

the individual MNPS employees’ qualified immunity defense to the Heynes’ 42 U.S.C. § 1983 claims. Based

on the record in the federal proceeding, the United States Court of Appeals for the Sixth Circuit held that the

Heynes’ complaint failed to state a 42 U.S.C. § 1983 conspiracy claim and that the school officials’ conduct

did not violate Mr. Heyne’s procedural due process rights. However, the court determined that Mr. Heyne

stated a facially valid claim against Mr. Manuel, Mr. Jones, and Ms. Perry for violating his procedural due

process rights. Heyne v. Metropolitan Nashville Pub. Schs., 655 F.3d 556 (6th Cir. 2011).

9

The United States District Court also concluded, in a footnote, that the Heynes “impliedly also

represent that they do not intend to pursue any claim in the state court action for attorneys’ fees pursuant to

42 U.S.C. § 1988.” When the case returned to state court, the Heynes disagreed with the United States

District Court’s conclusion that they would forego attempting to seek attorneys’ fees under 42 U.S.C. § 1988

in the state proceedings.

-7-

The trial court conducted a hearing in this case on December 16 through 18, 2009.

Over the Board of Education’s objection, the trial court permitted the Heynes to present

additional evidence regarding alleged illegal, arbitrary, or capricious actions that were not

reflected in the official record of Mr. Heyne’s disciplinary proceedings. Much of this

testimony focused on Ms. Perry’s role in the proceeding and on deviations between the

manner in which this matter was investigated and resolved and the requirements of the

Student-Parent Code of Conduct and Handbook. The Heynes also presented evidence

intended to demonstrate that the outcome of the proceeding was influenced by considerations

of race, class, and the MNPS’s fear of liability.

The trial court filed a lengthy memorandum and order on December 23, 2009. The

trial court dismissed the Heynes’ substantive due process and equal protection claims.

However, the trial court determined that the school system had acted illegally by violating

Mr. Heyne’s procedural due process right to have his case heard by an impartial decision-

maker. Focusing primarily on the hearing board that conducted the first administrative

review of Mr. Heyne’s discipline on September 23, 2008, the trial court concluded that Ms.

Perry “impermissibly performed and combined the functions of prosecutor in the case and

decision maker.” The court believed that Ms. Perry had acted as a prosecutor because she

had selected the disciplinary infractions with which Mr. Heyne would be charged and

because she assisted in gathering evidence. The trial court also decided that Ms. Perry was

a decision-maker because she was a member of the hearing board that conducted the first

administrative hearing and because she actively participated in the board’s deliberations.

The trial court also concluded that the record contained other evidence sufficient “to

draw an inference of bias and partiality.” In the trial court’s words:

The circumstantial evidence in this case . . . is that [Mr. Heyne]

was an affluent Caucasian student residing in Green Hills and

zoned for Hillsboro High School. He was highly visible on

campus as a scholar and football player, and his parents were

active, well-known supporters of the school. The other student,

[Denzel A.], was not affluent and was not zoned for Hillsboro.

He resided in Antioch. Additionally, circumstances from the

record are that coaches/adult supervision was not in place when

the incident occurred. Further, that [Denzel A.’s] parents, the

very night of the incident, had police on the scene and were

making reports the following Monday morning with school

security raised the spectre of claims of liability or a lawsuit

against the School. There are also the circumstances in the

record that the respondent maintains statistics on school

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discipline broken down by ethnicity. Those statistics show a

higher percentage number of convictions at Hillsboro High

School for students of [Denzel A.’s] ethnicity than other ethnic

groups which could be characterized as disproportionate

enforcement.

The foregoing circumstances of concerns of an

appearance of favoritism and lack of supervision at Hillsboro

High School . . . are accompanied with proof that this case was

handled differently from any other. The proof established that

it is the policy of the Vice Principal assigned to a student by

alphabet to investigate a disciplinary offense. This was not done

in the case of [Mr. Heyne]. Christian Heyne’s Vice Principal

was excluded from and not consulted in the investigation of the

incident whereas [Denzel A.’s] Vice Principal was consulted.

Also . . . there were irregularities such as the Central Office, not

Principal Manuel, performing the role of prosecutor in deciding

the charges. Fran Perry’s zeal, testified to by Dr. Pelham, was

unusual, out of the ordinary. And . . . the charges against

Christian Heyne were out of proportion to and did not fit the

conduct.

Based on these conclusions, the trial court determined that “Ms. Perry’s combined roles and

the circumstances of other motives [MNPS] had in processing the charges against [Mr.

Heyne], establish . . . that Ms. Perry was influenced in her role as decision maker by her

investment in a conviction due to her prosecutorial work, and concerns about litigation and

the appearance of favoritism.”

The trial court also concluded that Mr. Heyne’s ten-day suspension was illegal

because there was no evidence to support it. Even though the court found that the record

contained evidence that Mr. Heyne was reckless, it concluded that the record contains “no

proof that the risk [of injury resulting from Mr. Heyne’s conduct] was substantial, and . . .

that the risk was one of death or serious injury.” Focusing on Denzel A.’s injury, the court

noted that Denzel A. “return[ed] to athletic participation . . . within a week of the incident”

and that the team physician had concluded that “it is highly unlikely that serious injury or

death could result from the incident.” The trial court also noted that the record contained no

evidence that Mr. Heyne intended to cause harm.

In its December 23, 2009 memorandum and order, the trial court reserved ruling on

the Heynes’ claim for attorneys’ fees under 42 U.S.C. §§ 1983 and 1988. In an order entered

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on January 28, 2010, denying the Board of Education motion to strike the claim for attorneys’

fees, the trial court concluded that Tennessee law permitted the recovery of attorneys’ fees

and costs “in a writ of certiorari case where there has been a deprivation of U.S.

constitutional rights under color of state law.” Following a hearing on the Heynes’ request

for attorneys’ fees and costs, the trial court filed a memorandum and order on April 30, 2010,

awarding the Heynes $371,845.25 in attorneys’ fees and $25,626.27 in costs.

The Board of Education perfected an appeal to the Court of Appeals. In an opinion

filed on May 6, 2011, the Court of Appeals disagreed with the trial court’s finding that Mr.

Heyne’s due process rights had been violated. Heyne v. Metropolitan Nashville Bd. of Pub.

Educ., No. M2010-00237-COA-R3-CV, 2011 WL 1744239, at *9 (Tenn. Ct. App. May 6,

2011), perm. app. granted (Sept. 21, 2011). In addition, the Court of Appeals determined

that “there is material evidence to support the board’s decision and, therefore . . . that the

board’s decision was not arbitrary.” Heyne v. Metropolitan Nashville Bd. of Pub. Educ.,

2011 WL 1744239, at *11. Based on its conclusion that Mr. Heyne’s due process rights were

not violated, the Court of Appeals also found that the Heynes were not entitled to recover

attorneys’ fees pursuant to 42 U.S.C. § 1988. Heyne v. Metropolitan Nashville Bd. of Pub.

Educ., 2011 WL 1744239, at *11.

We granted the Heynes’ Tenn. R. App. P. 11 application for permission to appeal. In

their brief filed in this Court, the Heynes present four issues:

(1) Whether Mr. Heyne’s procedural due process rights were violated when Ms.

Perry, “motivated by actual bias and prejudice stemming from, among other things,

the consideration of the race of the students involved,” directed Mr. Manuel to bring

serious disciplinary charges against Mr. Heyne, despite the fact that he had not seen

fit to bring such charges.

(2) Whether Mr. Heyne’s procedural due process rights were violated when Ms.

Perry, “motivated by actual bias and prejudice,” dictated the charges to be brought

against Mr. Heyne, presided over the disciplinary hearing, participated in the

deliberations, and improperly influenced the hearing panel’s decision.

(3) Whether Mr. Heyne was improperly “convicted” of reckless endangerment when

the hearing panel never found that he placed another person at risk of serious bodily

injury or death.

(4) Whether the trial court had the authority to award the Heynes their attorneys’ fees.

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II.

We turn first to the standard of review that courts must use when reviewing local

public school officials’ decisions regarding student discipline. There is no dispute in this

case that local school officials have the authority to discipline students in an appropriate

manner.10 While both state law and the Board’s policies provide for an elaborate

administrative process for the imposition of student discipline, they do not explicitly provide

students with a vehicle for seeking judicial review of adverse disciplinary decisions. Thus,

in the absence of any other plain, speedy, or adequate method for obtaining judicial review

of an adverse disciplinary decision, students, either individually or through their parents, may

seek judicial review using a common-law petition for writ of certiorari authorized by Tenn.

Code Ann. § 27-8-101 (2000) after they have exhausted all the administrative remedies

available to them.

A common-law writ of certiorari is an extraordinary judicial remedy. State v. Lane,

254 S.W.3d 349, 355 (Tenn. 2008) (quoting Robinson v. Clement, 65 S.W.3d 632, 635

(Tenn. Ct. App. 2001)). The scope of the judicial review available through a common-law

writ is quite limited. Harding Acad. v. Metropolitan Gov’t of Nashville & Davidson Cnty.,

222 S.W.3d 359, 363 (Tenn. 2007); Leonard Plating Co. v. Metropolitan Gov’t of Nashville

& Davidson Cnty., 213 S.W.3d 898, 903 (Tenn. Ct. App. 2006).

The reasons for the writ’s limitations on the court’s ability to review an agency’s

decision are particularly important in cases such as this one. These limitations are grounded

in the doctrine of separation of powers found in Article II, Sections 1 and 2 of the Tennessee

Constitution. See Ben H. Cantrell, Review of Administrative Decisions By Writ of Certiorari

in Tennessee, 4 Mem. St. U.L. Rev. 19, 21 (1973). The General Assembly cannot require

the Judiciary to perform functions that are not essentially judicial. In re Cumberland Power

Co., 147 Tenn. 504, 508, 249 S.W. 818, 819 (1923) (quoting Muskrat v. United States, 219

U.S. 348, 352 (1911)). Likewise, the Judiciary may not, on its own initiative, undertake to

perform functions that are not necessarily judicial and that have been assigned to other

branches of government. See Hoover Motor Exp. Co. v. Railroad & Pub. Utils. Comm’n,

195 Tenn. 593, 602, 605-06, 261 S.W.2d 233, 237-38 (1953). Thus, providing the limited

sort of judicial review available under a common-law writ of certiorari will guard against the

risk that the courts might undertake to exercise power that does not belong to them.

10

See, e.g., Tenn. Code Ann. § 49-2-203(a)(7) (Supp. 2011) (empowering local boards of education

to suspend or dismiss pupils when the progress, safety, or efficiency of the school makes it necessary or when

disruptive, threatening, or violent students endanger the safety of other students or school system employees);

Tenn. Code Ann. § 49-6-3401(a) (empowering principals to suspend students from school).

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Creating a climate conducive to learning and maintaining discipline in public schools

between kindergarten and the twelfth grade are not judicial functions. The United States

Supreme Court has properly observed that public education in our country is, by and large,

committed to the control of state and local authorities and that any judicial intervention into

the operation of public schools requires “care and restraint.” Goss v. Lopez, 419 U.S. 565,

578 (1975) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). The care and restraint

reflected in the limited standard of review available through a common-law writ of certiorari

helps to avoid the risk that the courts will be asked to become super school boards insofar

as student discipline is concerned.

The judicial review available under a common-law writ of certiorari is limited to

determining whether the entity whose decision is being reviewed (1) exceeded its

jurisdiction, (2) followed an unlawful procedure, (3) acted illegally, arbitrarily, or

fraudulently, or (4) acted without material evidence to support its decision. Harding Acad.

v. Metropolitan Gov’t of Nashville & Davidson Cnty., 222 S.W.3d at 363; see also Stewart

v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012). We have explicitly approved the use of the

common-law writ of certiorari to provide judicial relief from (1) fundamentally illegal

rulings, (2) proceedings inconsistent with essential legal requirements, (3) proceedings that

effectively deny parties their day in court, (4) decisions that are beyond the decision-maker’s

authority, and (5) decisions that involve plain and palpable abuses of discretion. State v.

Lane, 254 S.W.3d at 355 (quoting Willis v. Tennessee Dep’t of Corr., 113 S.W.3d 706, 712

(Tenn. 2003)). However, we have also held that:

the common law-writ [of certiorari] . . . may not be resorted to

for the correction of technical or formal errors, not affecting

jurisdiction or power, or for the correction of defects that are not

radical, amounting to an illegality that is fundamental, as

distinguished from an irregularity.

State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 249, 192 S.W. 931, 933 (1917).

A common-law writ of certiorari proceeding does not empower the courts to

redetermine the facts found by the entity whose decision is being reviewed. Tennessee Waste

Movers, Inc. v. Loudon Cnty., 160 S.W.3d 517, 520 n.2 (Tenn. 2005); Cooper v. Williamson

Cnty. Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987). Accordingly, we have repeatedly

cautioned that a common-law writ of certiorari does not authorize a reviewing court to

evaluate the intrinsic correctness of a governmental entity’s decision. See, e.g., Stewart v.

Schofield, 368 S.W.3d at 465; Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 480

(Tenn. 1997). Similarly, we have noted that reviewing courts may not reweigh the evidence

or substitute their judgment for the judgment of the entity whose decision is being reviewed.

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See, e.g., State v. Lane, 254 S.W.3d at 355 (quoting Robinson v. Clement, 65 S.W.3d at 635);

Harding Acad. v. Metropolitan Gov’t of Nashville & Davidson Cnty., 222 S.W.3d at 363.

In other contexts, we have recognized that the administrative decisions of local public

school officials are accompanied with a presumption that they were made in good faith. See

Lawrence Cnty. Educ. Ass’n v. Lawrence Cnty. Bd. of Educ., 244 S.W.3d 302, 315 (Tenn.

2007); Mitchell v. Garrett, 510 S.W.2d 894, 898 (Tenn. 1974). This presumption of good

faith applies in proceedings involving a common-law writ of certiorari. McCord v. Southern

Ry., 187 Tenn. 247, 252-53, 213 S.W.2d 184, 186 (1948). Accordingly, parties using a

common-law writ of certiorari to challenge an administrative decision of local school

officials have the burden of presenting evidence establishing that the officials (1) exceeded

their jurisdiction, (2) followed an unlawful procedure, (3) acted illegally, arbitrarily, or

fraudulently, or (4) acted without material evidence to support their decision.

A common-law writ of certiorari is not available as a matter of right. Boyce v.

Williams, 215 Tenn. 704, 713-14, 389 S.W.2d 272, 277 (1965); State ex rel. Karr v. Taxing

Dist. of Shelby Cnty., 84 Tenn. 240, 246 (1886). The petition for a writ is addressed to the

trial court’s discretion. Biggs v. Memphis Loan & Thrift Co., 215 Tenn. 294, 302, 385

S.W.2d 118, 122 (1964); Gaylor v. Miller, 166 Tenn. 45, 50, 59 S.W.2d 502, 504 (1933).

Accordingly, appellate courts must review a trial court’s decision either to grant or to deny

a petition for common-law writ of certiorari using the “abuse of discretion” standard of

review. State v. Lane, 254 S.W.3d at 354.

The “abuse of discretion” standard does not permit an appellate court to substitute its

judgment for the trial court’s judgment. Wright ex rel. Wright v. Wright, 337 S.W.3d 166,

176 (Tenn. 2011). We have recently explained:

Discretionary decisions must take the applicable law and

the relevant facts into account. An abuse of discretion occurs

when a court strays beyond the applicable legal standards or

when it fails to properly consider the factors customarily used to

guide the particular discretionary decision. A court abuses its

discretion when it causes an injustice to the party challenging

the decision by (1) applying an incorrect legal standard, (2)

reaching an illogical or unreasonable decision, or (3) basing its

decision on a clearly erroneous assessment of the evidence.

To avoid result-oriented decisions or seemingly

irreconcilable precedents, reviewing courts should review a

lower court’s discretionary decision to determine (1) whether the

-13-

factual basis for the decision is properly supported by the

evidence in the record, (2) whether the lower court properly

identified and applied the most appropriate legal principles

applicable to the decision, and (3) whether the lower court’s

decision was within the range of acceptable alternative

dispositions.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citations omitted) ; see also

Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012); Gonsewski v. Gonsewski, 350 S.W.3d

99, 105-06 (Tenn. 2011); Elliott v. Cobb, 320 S.W.3d 246, 249-50 (Tenn. 2010).

III.

The Heynes assert that the Court of Appeals erred by reversing the trial court’s order

that vacated Mr. Heyne’s ten-day suspension and directing that his official school record be

expunged. Accordingly, we must decide (1) whether the trial court abused its discretion by

concluding that Mr. Heyne’s disciplinary proceeding was fatally tainted by Ms. Perry’s acting

as both a prosecutor and a decision-maker; (2) whether Mr. Heyne’s disciplinary proceeding

was fatally tainted by the school officials’ individual and collective “bias and partiality”

against him; and (3) whether the record contains material evidence supporting the hearing

panel’s conclusion that Mr. Heyne’s conduct on the afternoon of September 5, 2008

amounted to reckless endangerment under Rule 1, Code 8. We have concluded that the Court

of Appeals correctly determined (1) that the trial court erred by determining that the dual role

Ms. Perry played in the disciplinary proceeding violated Mr. Heyne’s procedural due process

rights, (2) that the record does not contain sufficient evidence that the school officials’

decision to suspend Mr. Heyne for ten days stemmed from their “bias and partiality” against

him, and (3) that the record contains ample evidence to support the school officials’ decision

that Mr. Heyne’s conduct on the afternoon of September 5, 2008 constituted an infraction of

Rule 1, Code 8 proscribing reckless endangerment.

A.

Both the United States Constitution and The Constitution of Tennessee contain

substantially similar limitations on the power of government entities to deprive persons of

their life, liberty, and property. Section One of the Fourteenth Amendment provides, in part,

that the states shall not “deprive any person of life, liberty, or property, without due process

of law.” Similarly, Article I, Section 8 of the Constitution of Tennessee states that “no man

shall be . . . disseized of his freehold, liberties or privileges, or . . . deprived of his life, liberty

or property, but by the judgment of his peers or the law of the land.” We have repeatedly

noted that the procedural due process protections in these two provisions are essentially the

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same. Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 230 (Tenn. 2010); City of White

House v. Whitley, 979 S.W.2d 262, 269 (Tenn. 1998); State ex rel. Anglin v. Mitchell, 596

S.W.2d 779, 786 (Tenn. 1980); Daugherty v. State, 216 Tenn. 666, 675, 393 S.W.2d 739, 743

(1965).

When a person asserts a procedural due process claim, the court must first determine

whether he or she has an interest entitled to due process protection. Board of Regents of

State Colls. v. Roth, 408 U.S. 564, 570-71 (1972); Rowe v. Board of Educ. of City of

Chattanooga, 938 S.W.2d 351, 354 (Tenn. 1996). If the court determines that the person has

an interest that is entitled to constitutional due process protection, then the court must

determine “what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see also

Martin v. Sizemore, 78 S.W.3d 249, 263 (Tenn. Ct. App. 2001). Once the court determines

minimum procedural due process protections to which the person is entitled, the court must

finally determine whether the challenged procedures satisfy these minimum requirements.

Courts must generally look beyond the federal and state Constitutions to determine

whether a person has a constitutionally protected property interest. As the United States

Supreme Court has noted, these sorts of interests “are created and their dimensions are

defined by existing rules or understandings that stem from an independent source such as

state law – rules or understandings that secure certain benefits and that support claims of

entitlement to those benefits.” Board of Regents of State Colls. v. Roth, 408 U.S. at 577.

The United States Supreme Court has declined to recognize that the right to a free

public education is a fundamental right protected by the Equal Protection Clause of the

Fourteenth Amendment. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35-36

(1973). However, Article XI, § 12 of the Constitution of Tennessee “guarantees to all

children of school age in the state the opportunity to obtain an education.” Tennessee Small

Sch. Sys. v. McWherter, 851 S.W.2d 139, 140 (Tenn. 1993). To implement this constitutional

imperative, the General Assembly has created a statutory right to a public education that

benefits all school-age children in Tennessee.11 Accordingly, Mr. Heyne has a claim of

entitlement to a public education that warrants procedural due process protection.

Having determined that Mr. Heyne has a constitutionally protected right to a public

education, the next step is to identify the scope of the minimum due process protections that

must be afforded to students like Mr. Heyne when a school undertakes to disrupt this right

by disciplining them for misconduct. Due process “is not a technical conception with a fixed

content unrelated to time, place and circumstances.” Joint Anti-Fascist Refugee Comm. v.

McGrath, 341 U.S. 123, 162 (1951) (Frankfurter, J., concurring). By its very nature, “due

11

See Tenn. Code Ann. §§ 49-6-3001(c)(1), -3003 (2009).

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process negates any concept of inflexible procedures universally applicable to every

imaginable situation.” Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367 U.S.

886, 895 (1961). Therefore, “due process is flexible and calls for such procedural protections

as the particular situation demands.” Morrissey v. Brewer, 408 U.S. at 481.

The fundamental requirement of due process is the opportunity to be heard “at a

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)); see also Bailey v. Blount

Cnty. Bd. of Educ., 303 S.W.3d at 231. To assure that this requirement is met, both the

United States Supreme Court and this Court require consideration of “three distinct factors.”

Mathews v. Eldridge, 424 U.S. at 335; Smith v. State, 357 S.W.3d 322, 357 (Tenn. 2011);

Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993). These factors include:

First, the private interest that will be affected by the official

action; second, the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if

any, of additional or substitute procedural safeguards; and

finally, the Government’s interest, including the function

involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. at 335.

We concur with the United States Supreme Court’s observation that students do not

shed their constitutional rights at the school house door. Goss v. Lopez, 419 U. S. at 574

(quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)); see also

Morse v. Frederick, 551 U.S. 393, 396 (2007). However, we also concur with the United

States Supreme Court’s observation that the contours of a student’s rights can be properly

defined only by considering the “special characteristics of the school environment,”

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. at 506), and the significant interest of school officials in

controlling the behavior of students to prevent material disruption of class work, to prevent

substantial disorder, and to prevent the invasion of the rights of other students or faculty.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. at 513.

The United States Supreme Court has already had occasion to address the procedural

due process rights of public school students facing discipline for infraction of rules of student

conduct. The case involved nine students who were summarily suspended from school for

up to ten days for disruptive or disobedient conduct in the presence of a school administrator.

The students filed suit in the United States District Court asserting that their procedural due

-16-

process rights were violated because they were denied a hearing of any kind. A three-judge

District Court determined that due process required that, except in emergency situations,

students could not be suspended without first being provided notice and a hearing. Goss v.

Lopez, 419 U.S. at 571-72.

The United States Supreme Court disagreed with the District Court’s assessment of

the scope of the students’ due process rights and explicitly declined to go any further than

requiring “an informal give-and-take between [the] student and [the] disciplinarian.” Gross

v. Lopez, 419 U.S. at 584. The Court noted that a ten-day suspension is “a serious event in

the life of the suspended child,” Goss v. Lopez, 419 U.S. at 576, and that defining the scope

of the students’ rights required an “appropriate accommodation of the competing interests

involved.” Goss v. Lopez, 419 U.S. at 579. While the Court observed that “[s]ome modicum

of discipline and order is essential if the educational function is to be performed,” Goss v.

Lopez, 419 U.S. at 580, it stated that “[t]he risk of error is not at all trivial, and it should be

guarded against if that may be done without prohibitive cost or interference with the

educational process.” Goss v. Lopez, 419 U.S. at 580.

After balancing the competing interests of the student and the school, the United

States Supreme Court held that in order to guard against unfair or mistaken findings of

misconduct or arbitrary exclusion from school, “due process requires, in connection with a

suspension of 10 days or less, that the student be given oral or written notice of the charges

against him and, if he denies them, an explanation of the evidence the authorities have and

an opportunity to present his side of the story.” Goss v. Lopez, 419 U.S. at 581. The Court

explained:

We stop short of construing the Due Process Clause to

require, countrywide, that hearings in connection with short

suspensions must afford the student the opportunity to secure

counsel, to confront and cross-examine witnesses supporting the

charge, or to call his own witnesses to verify his version of the

incident. Brief disciplinary suspensions are almost countless.

To impose in each such case even truncated trial-type

procedures might well overwhelm administrative facilities in

many places and, by diverting resources, cost more than it would

save in educational effectiveness. Moreover, further

formalizing the suspension process and escalating its formality

-17-

and adversary nature may not only make it too costly as a

regular disciplinary tool but also destroy its effectiveness as part

of the teaching process.

Goss v. Lopez, 419 U.S. at 583.

We agree with the manner in which the United States Supreme Court has balanced the

interests of schools and students facing disciplinary suspensions of ten days or less. While

we are obligated to adhere to the Court’s determination of the requirements of the Due

Process Clause of the Fourteenth Amendment, it is solely our prerogative to determine the

procedures that are necessary to satisfy the requirements of Article I, Section 8 of the

Constitution of Tennessee. State constitutions may afford greater protections than those

found in the United States Constitution and may even protect rights that are not protected by

the United States Constitution. See State v. Cox, 171 S.W.3d 174, 183 (Tenn. 2005);

Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d at 152. In the context of the procedural

due process rights of public school students facing discipline for the infraction of school

rules, we have determined that the protections afforded by Article I, Section 8 are the same

as the protections afforded by the Due Process Clause of the Fourteenth Amendment.

Accordingly, we adopt the reasoning and the holding of the United States Supreme Court in

Goss v. Lopez regarding the due process rights of public school students facing a suspension

of ten days or less.

B.

Based on our understanding of the record in this case, Mr. Heyne received all of the

required due process protections before Mr. Manuel suspended him from school for ten days

on September 11, 2008. Had the disciplinary proceeding ended at this point, any claim of

a procedural due process violation would have been effectively foreclosed by Goss v. Lopez.

However, the proceedings did not end with Mr. Manuel’s decision to suspend Mr. Heyne for

ten days.

The Heynes received a notice dated September 11, 2008, stating that the matter of Mr.

Heyne’s discipline for violating three provisions of the Student-Parent Code of Conduct and

Handbook had been referred to the coordinator of student disciplinary referrals and that “the

penalty for the violation may result in a suspension, exclusion and/or expulsion of your

son/daughter for more than ten (10) school days.” This notice triggered additional statutory

rights to further disciplinary hearings. See Tenn. Code Ann. § 49-6-3401(c)(4)(A). The

Heynes pursued these additional hearings. Their current multi-faceted attack on the Board

and the school administrators involves the proceedings that took place after Mr. Manuel

suspended Mr. Heyne for ten days.

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While the Heynes have launched a multi-front attack on the MNPS’s disciplinary

process, they have not asserted that the hearing process mandated by Tenn. Code Ann. § 49-

6-3401(c)(4), (6) and the Student-Parent Code of Conduct and Handbook does not satisfy

minimum due process requirements. Rather, they have asserted that the manner in which this

process was applied in their son’s case rendered the proceedings fundamentally unfair in

three particulars. We will address each of these particulars.

C.

The Heynes’ first procedural due process claim is that the disciplinary proceedings

were fundamentally unfair because of the dual role played by Ms. Perry. They insist that it

is fundamentally unfair to permit a MNPS Disciplinary Coordinator, like Ms. Perry, (1) to

advise and consult with principals, like Mr. Manuel, regarding the disciplinary infractions

that have been committed; (2) to assist in gathering evidence relevant to the alleged

infractions; (3) to preside at the hearing board’s proceeding regarding these charges; and (4)

to participate in the hearing board’s deliberations.

Due process entitles students facing discipline for infractions of school rules that

could result in a suspension greater than ten days to a hearing “at a meaningful time and in

a meaningful manner.” See Mathews v. Eldridge, 424 U.S. at 333. For a hearing to be

“meaningful” in the constitutional sense, it must employ a decision-maker or decision-makers

who are unbiased. Withrow v. Larkin, 421 U.S. 35, 47 (1975) (“observing that “a biased

decisionmaker [is] constitutionally unacceptable”); see also Martin v. Sizemore, 78 S.W.3d

at 264.

Due process does not require all the structural safeguards in administrative and civil

adjudicatory proceedings that we have come to expect in criminal proceedings. See 2

Richard J. Pierce, Jr., Administrative Law Treatise § 9.9, at 679 (4th ed. 2002). Accordingly,

while the separation of investigative, prosecutorial, and adjudicative functions is a hallmark

of criminal proceedings, due process does not require the strict adherence to separation of

functions in civil matters. See Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n,

426 U.S. 482, 493 (1976); 32 Charles A. Wright & Charles H. Koch, Jr., Federal Practice

and Procedure § 8259, at 469 (2006). Accordingly, some combination of overlapping of

functions in an administrative proceeding is not inconsistent with fundamental fairness.

Martin v. Sizemore, 78 S.W.3d at 264.

While we have not heretofore addressed this question in the context of a school

disciplinary proceeding, other courts have determined that due process is not necessarily

violated when school officials have overlapping responsibilities with regard to investigating

and initiating disciplinary proceedings and then deciding whether an infraction has occurred

-19-

and imposing punishment. Brewer ex rel. Dreyfus v. Austin Indep. Sch. Dist., 779 F.2d 260,

264 (5th Cir. 1985); Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 926-27 (6th Cir.

1988); see also 1 Ronna Greff Schneider, Education Law: First Amendment, Due Process

and Discrimination Litigation § 3:12 (2011). As the United States Court of Appeals for the

Eleventh Circuit has noted, “[i]n the school context, it is both impossible and undesirable for

administrators involved in incidents of misbehavior always to be precluded from acting as

decision-makers.” C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383, 387 n.3 (11th Cir. 1996).

The record before us demonstrates that Ms. Perry, acting as the MNPS’s Disciplinary

Coordinator assigned to Hillsboro High School, responded to Mr. Manuel’s request for

assistance in identifying the infractions that Mr. Heyne may have committed during the after-

school incident on September 5, 2008. Ms. Perry and other MNPS staff members identified

the three infractions with which Mr. Heyne was charged and also told Mr. Manuel that it

would be preferable to address the matter at the district level rather than at the local level.

The record also demonstrates that Ms. Perry was a member of the four-person hearing

board that conducted the hearing on September 23, 2008, and that she presided over the

hearing. However, the record shows that none of the other three members of the hearing

board played any role in the investigation or initiation of the disciplinary proceedings

involving Mr. Heyne. While the record also shows that Ms. Perry participated in the hearing

board’s deliberations and stated her opinion that Mr. Heyne had committed the three

infractions with which he was charged, the hearing board eventually found that Mr. Heyne

had not committed two of the infractions12 and determined unanimously that he had

committed the “reckless endangerment” infraction.

Clearly, the role Ms. Perry played in the proceeding involving Mr. Heyne combined

the functions of prosecutor and decision-maker. However, like the other courts that have

addressed the issue of separation of functions in school disciplinary proceedings, we decline

to adopt a per se rule that a combination of functions, by itself, is contrary to due process.

Accordingly, we hold that the fact that Ms. Perry served a dual role in these proceedings,

without more, does not rise to the level of a violation of due process. Therefore, the trial

court employed an incorrect legal standard when it held that Ms. Perry’s actions amounted

to “a combination not permitted by Tennessee law.”

12

The hearing board declined to find that Mr. Heyne had driven his automobile in a

threatening/assaultive manner in violation of Rule 4, Code 44 or that his conduct amounted to

cruelty/abusiveness to a student in violation of Rule 9, Code 66.

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D.

The Heynes’ second procedural due process claim is that the Court of Appeals erred

by overturning the trial court’s conclusion that Ms. Perry’s actions in this case were

“motivated by bias and prejudice” against Mr. Heyne. They assert that the record contains

sufficient circumstantial evidence to support the trial court’s conclusion that “Ms. Perry was

influenced in her role as decision maker by her investment in a conviction due to her

prosecutorial work, and concerns about litigation and the appearance of favoritism.” Like

the Court of Appeals, we have determined that the evidence in this case is not sufficient to

overcome the presumption that Ms. Perry and the other public officials involved in Mr.

Heyne’s disciplinary proceeding were carrying out their responsibilities in good faith.

We have already determined that the dual role Ms. Perry played in Mr. Heyne’s

disciplinary proceedings is not sufficient, by itself, to establish a due process violation.

However, a party may succeed with a due process claim if it can present special facts and

circumstances demonstrating that the risk of actual bias in a particular proceeding is

intolerably high. Withrow v. Larkin, 421 U.S. at 58; Martin v. Sizemore, 78 S.W.3d at 265.

Thus, we must evaluate the evidence presented by the Heynes to determine whether it

supports the trial court’s conclusion that the risk of bias against Mr. Heyne in this particular

proceeding is high enough to rebut the presumption that the school officials were acting in

good faith.

The evidence in this record establishes that :

(1) Mr. Heyne is Caucasian, and Denzel A. is African-American;

(2) Hillsboro High School, like all other schools, complies with Tenn. Code Ann.

§ 49-6-3401(h) by compiling statistics regarding student discipline that include

demographic factors such as the grade level, race, and gender of the student;

(3) These reports purportedly show that more African-American students than

Caucasian students are disciplined at Hillsboro High School;

(4) No coaches or adult personnel were present in the parking lot when the

September 5, 2008 incident occurred;

(5) Immediately following the incident, Denzel A. and other students found Mr.

Manuel in his office and reported what had occurred;

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(6) Denzel A.’s parents were upset that their son had been injured and reported the

incident to law enforcement officials;

(7) Mr. Manuel conducted an investigation and determined that the appropriate

punishment for Mr. Heyne’s conduct was a ten-day suspension and forfeiture

of his right to bring his automobile on campus;

(8) Mr. Manuel and members of the MNPS central office staff decided that the

final disciplinary decision should be made on the district level rather than on

the local school level;

(9) Following a hearing, a four-person hearing board dismissed two of the

disciplinary infractions against Mr. Heyne and found unanimously that his

conduct on September 5, 2008 constituted reckless endangerment under the

2008-2009 Student-Parent Code of Conduct and Handbook;

(10) Following a second hearing, the designee of the Director of Metropolitan

Nashville Public Schools upheld the discipline imposed by Mr. Manuel and the

hearing board; and

(11) Based on the recommendation of a subcommittee headed by the chair of the

Board of Education, the Board of Education declined to review the Heynes’

appeal and allowed the discipline imposed by Mr. Manuel and the hearing

board to stand.

The Heynes argued, and the trial court apparently found, that Mr. Heyne was

suspended from school for ten days because the school officials were concerned about the

appearance that more African-American students than Caucasian students were being

disciplined at Hillsboro High School. The circumstantial evidence they presented on this

point falls far short of the type of evidence that is required to establish racial animus. The

record is entirely devoid of any direct evidence that the school officials had decided that

discipline at Hillsboro High School was tainted by racial bias or that they set about correcting

the problem by singling out Caucasian students for unwarranted discipline.

While the evidence is undisputed that no coaches or other adult school personnel were

present when the September 5, 2008 incident occurred, there is no evidence that Denzel A.’s

parents were pursuing a liability claim against the school or otherwise attempting to hold the

school liable for Mr. Heyne’s actions. The fact that Denzel A.’s parents attempted to initiate

criminal proceedings against Mr. Heyne, or may have been seeking damages from the

Heynes, is not relevant to the school officials’ disciplinary actions. The record contains no

-22-

evidence that the school officials and Denzel A.’s parents were acting in concert with regard

to this incident.

The fact that Mr. Manuel handled this matter himself rather than delegating it to an

assistant principal is not significant. Mr. Manuel was the only administrator on duty when

the incident occurred, and Denzel A. and the other students reported the incident directly to

him. While assistant principals customarily handle student disciplinary matters, other school

officials testified that it is not uncommon for executive principals like Mr. Manuel to take

charge of disciplinary proceedings when the circumstances warrant it. In this case, the

students complained about Mr. Heyne directly to Mr. Manuel. Mr. Heyne was a prominent

member of the student body. His parents were extremely involved with school activities and

vigorously defended their son as soon as they were informed about the incident. Under these

circumstances, it is not remarkable that Mr. Manuel would take on the responsibility to

address the matter rather than delegating it to a subordinate.

Based on this record, the fact that the school officials preferred resolving the matter

at the district level rather than the local level does not support an inference that their decision

to do so was based on race. The disciplinary offense of reckless endangerment had recently

been added to the Student-Parent Code of Conduct and Handbook, and there is evidence of

some uncertainty regarding the sort of conduct that the offense should include. Accordingly,

it is not remarkable that a school principal would consult with other school officials

regarding what the offense entailed or that school officials would deem it preferable to

address disciplinary proceedings involving a relatively unfamiliar offense at the district level

rather than at the local level.

Finally, this record contains no evidence that the review of this case conducted by the

designee of the Director of Metropolitan Public Schools was tainted by racial bias or the fear

of potential liability. Likewise, there is no evidence that the Board of Education did not, in

complete good faith, fulfill its obligation to review the proceedings to decide whether the

discipline Mr. Heyne received was warranted by the facts.

At most, the Heynes assert that by the time the record reached the second tier of

administrative review, the school officials had such a vested interest in upholding the

discipline that Mr. Heyne did not receive a full and fair review of Mr. Manuel’s and the

hearing board’s decisions. This record simply does not contain sufficient evidence to enable

us to uphold such a claim of institutional bias.

The trial court employed an incorrect legal standard when it held that Mr. Heyne’s

disciplinary proceedings were tainted by bias without taking into consideration the

presumption that school officials act in good faith. When that presumption is properly

-23-

applied, the evidence in this case is insufficient to establish the existence of special facts and

circumstances demonstrating that the risk of actual bias in Mr. Heyne’s disciplinary

proceeding was intolerably high.

IV.

The Heynes also insist that the Court of Appeals erred by overturning the trial court’s

conclusion that the school officials acted arbitrarily and illegally. The trial court ruled that

the record contains no material evidence to support the school officials’ finding that Mr.

Heyne’s conduct amounted to reckless endangerment under the Student-Parent Code of

Conduct and Handbook. However, the Court of Appeals agreed with the school system that

the record does contain material evidence to support the hearing board’s finding that Mr.

Heyne’s behavior was reckless and that it amounted to reckless endangerment.

Ascertaining whether a record contains material evidence to support a board’s

decision is a question of law. Leonard Plating Co. v. Metropolitan Gov’t of Nashville &

Davidson Cnty., 213 S.W.3d at 904. For the purpose of this inquiry, “material evidence” is

relevant evidence that a reasonable person would accept as adequate to support a rational

conclusion. Hedgepath v. Norton, 839 S.W.2d 416, 421 (Tenn. Ct. App. 1992) (quoting Pace

v. Garbage Disposal Dist., 54 Tenn. App. 263, 267, 390 S.W.2d 461, 463 (1965)). The

amount of material evidence required to support an agency’s decision “must exceed a

scintilla of evidence but may be less than a preponderance of the evidence.” Leonard Plating

Co. v. Metropolitan Gov’t of Nashville & Davidson Cnty., 213 S.W.3d at 904. Because the

sufficiency of the material evidence in a common-law writ of certiorari proceeding is a

question of law, the courts must review the record de novo without presuming that the

findings are correct. Lafferty v. City of Winchester, 46 S.W.3d 752, 759 (Tenn. Ct. App.

2000).

The trial court found that the record contained evidence of recklessness.13 However,

it concluded that the record does not contain material evidence of “the endangerment aspect.”

Relying on the language of the Student-Parent Code of Conduct and Handbook, the trial

court explained that the offense of reckless endangerment includes “the two other elements

of substantial risk, and death or serious injury to another person.” Accordingly, the trial court

found that the record contains “no proof that the risk was substantial [or] that the risk was

13

After reviewing the evidence considered by Mr. Manuel and the hearing board, the trial court

observed that “10 of those [witness] statements contain testimony that Christian Heyne’s conduct in driving

his car that day was careless, headlong, irresponsible and risky. . . . The foregoing testimony, though only

fulfills the ‘reckless’ element of the offense Christian Heyne was charged with.”

-24-

one of death or serious injury.” The trial court also pointed out that the hearing board had

concluded that Mr. Heyne did not intend to harm Denzel A.

The Student-Parent Code of Conduct and Handbook defined “reckless endangerment”

as conduct “creating a substantial risk of death or serious injury to another person.” This

definition is entirely consistent with our general understanding of recklessness. We have

held that

[a] person acts recklessly when the person is aware of, but

consciously disregards, a substantial and unjustifiable risk of

such a nature that [the person’s] disregard constitutes a gross

deviation from the standard of care that an ordinary person

would exercise under all the circumstances.

Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992); see also 8 Tennessee

Practice: Tennessee Pattern Jury Instructions – Civil 14.55, at 754 (2011); Tenn. Code Ann.

§ 39-11-1069(a)(31) (Supp. 2011); Tenn. Code Ann. § 39-11-302(a) (2010). A “reckless”

person is generally “fully aware of the risks and may even be trying and hoping to avoid

harm.” Bryan A. Garner, A Dictionary of Modern Legal Usage 924 (2d ed. 1995).

The trial court’s decision rests primarily on its appraisal of the nature of the injuries

that Denzel A. actually sustained rather than the possible injuries that could have resulted

from Mr. Heyne’s conduct.14 Like the Court of Appeals, we have concluded that the trial

court’s interpretation of the school’s definition of “reckless endangerment” is too restrictive.

We have also determined that the fact that Mr. Heyne did not intend to harm Denzel A. or

any of the other freshman football players does not undermine either Mr. Manuel’s or the

hearing board’s conclusion that Mr. Heyne was reckless. For the purpose of the school’s

rule, a person can be found to have violated the rule proscribing reckless endangerment if the

person is aware of, but consciously disregards, the possibility that his or her conduct may

create a substantial risk of death or serious injury to another person.

The risks attendant to abruptly driving an automobile in the direction of a group of

teenagers standing in a confined space are obvious. Among these risks is the risk of serious

injury or death. The record in this case contains sufficient material evidence to support the

conclusion that Mr. Heyne had knowledge of facts that would make the danger obvious to

14

The trial court supported its conclusion by pointing to the emergency room records diagnosing

Denzel A.’s injuries as a sprain and contusions and an affidavit from the football team’s orthopaedic surgeon

stating his opinion that it was highly unlikely that serious injury or death could result from the incident.

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anyone in his situation.15 Despite obviousness of the risk, Mr. Heyne shifted his automobile

from reverse to drive and, without stopping or waiting for the students to move out of his

way, drove in the direction of the group of students standing between his automobile and the

exit to the parking lot. Viewing all the evidence available to Mr. Manuel and the hearing

board in the manner required in proceedings involving a common-law writ of certiorari, we

agree with the Court of Appeals that the record contains material evidence supporting the

decision to suspend Mr. Heyne for ten days for engaging in conduct that amounted to

reckless endangerment and, therefore, that the trial court erred by concluding that Mr.

Manuel and the hearing board acted arbitrarily and illegally by making a decision that was

not supported by the evidence.

V.

As a final matter, the Heynes assert that the Court of Appeals erred by reversing the

portion of the trial court’s judgment awarding them attorneys’ fees and costs. However, the

Heynes concede in their argument, as they must, that a party must prove a violation of its

constitutional rights before it is entitled to attorneys’ fees. Because we have determined that

the Heynes have failed to prove that Mr. Heyne’s constitutional rights were violated in the

disciplinary proceeding that resulted in his ten-day suspension from school, we affirm the

decision of the Court of Appeals that the Heynes are not entitled to recover their attorneys’

fees or costs.

VI.

We affirm the judgment of the Court of Appeals and remand the case to the trial court

for any further proceedings that may be required consistent with this opinion. We tax the

costs of this appeal to William and Robin Heyne and their surety for which execution, if

necessary, may issue.

_________________________________

WILLIAM C. KOCH, JR., JUSTICE

15

See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 2 cmt. c (2010)

(noting that the definition of “recklessness” in Section 2(a) “requires that the person either have knowledge

of the danger or have knowledge of the facts that would make the danger obvious to anyone in the actor’s

situation”).

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