The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50561
TED MEYER, Individually and as Next Friend for Carolyn Preciado, A
Minor; ROSEMARY MEYER, Individually and as Next Friend for Carolyn
Preciado, A Minor; HAROLD ROBBINS, Individually and as Next Friend
for Linda Rosales, now known as Linda Quiroz, A Minor; LINDA
ROBBINS, Individually and as Next Friend for Linda Rosales, now
known as Linda Quiroz, A Minor; PEDRO R AGUIRRE, Individually and
as Next Friend for Angelica Aguirre, A Minor; SYLVIA MARTINEZ,
Individually and as Next Friend for Aglae Martinez, A Minor; JESSE
MARTINEZ, Individually and as Next Friend for Aglae Martinez, A
Minor; HERMINIA LARIOS, Parent of Sarah Ramirez; SARAH RAMIREZ
Plaintiffs-Appellees,
AUSTIN INDEPENDENT SCHOOL DISTRICT; KENT EWING, Principal, Bowie
High School
Defendants-Appellants
Appeal from the United States District Court
for the Western District of Texas
November 16, 1998
Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Students in a Travis County, Texas, high school alleged that
school administrators illegally denied them procedural due process
by suspending them for gang-related activity. The magistrate judge
presiding by consent refused to grant summary judgment for the
school principal on the basis of qualified immunity. Given our
limited jurisdiction on this interlocutory appeal, we affirm.
I
Five minor students and their parents as next friends sued the
Austin Independent School District, its board of trustees and
school board, superintendent James H. Fox, Bowie High School, and
Bowie principal and vice-principal Kent Ewing and Jorge Rodriguez.
The complaint was filed in Texas state court and removed by the
defendants. After threatening expulsion, the school had suspended
the plaintiffs for three days each on the ground that their shirts,
which were “maroonish or reddish” and allegedly contained gang
insignia, indicated that they were engaging in gang-related
activities. The students complained that they had not received
procedural due process when they were suspended from school without
a hearing, and also made complaints based on the First Amendment,
substantive due process, and the Equal Protection Clause.
Defendants filed a motion to dismiss, based in part on the
immunity doctrine of Monell v. Department of Soc. Servs., 436 U.S.
658, 690-91 (1978). The parties consented to proceed before a
magistrate judge, and the case was reassigned to him for all
purposes.1 The magistrate judge dismissed all claims other than
the procedural due process claim, and dismissed the procedural due
process claim as it related to Rodriguez in all capacities and
Ewing in his official capacity. The AISD remained as a defendant
only for the limited purpose of enabling the district court to
grant the students’ request for injunctive relief regarding certain
1
This appeal is thus before the court pursuant to 28 U.S.C. §
636(c)(3) (authorizing a direct appeal from a magistrate to the
court of appeals). See also Parker v. Collins, 736 F.2d 313 (5th
Cir. 1984).
2
AISD records should the court find that the principal violated the
students’ procedural due process rights.
Ewing and AISD filed a Rule 56 summary judgment motion. The
school argued that the parents lacked standing to assert a due
process claim and that there were informal “give and take” hearings
between the students and the administrators that met the
requirements of procedural due process. The magistrate judge,
persuaded that the parents lacked standing, granted summary
judgment on the due process claims, but denied the motion in all
other respects. The magistrate judge found that there was a
question of fact as to whether the interviews held with students
and parents constituted a “hearing” in which students had been able
to present “their side of the story” regarding the events at issue.
The district court did not make explicit factual findings, but
assumed for the purpose of summary judgment the facts as set forth
by the students. The students submitted affidavits telling similar
stories. As they were arriving at school, Rodriguez or Ewing
noticed their clothing and inquired as to why they were wearing
“gang stuff.” The administrators did not give the students a chance
to answer the apparently rhetorical questions. Ewing told the
students that they would not be allowed to return to Bowie, and a
journalism teacher took pictures of the students and their
clothing. At no time did any administrator ask the students to
explain how they came to wear similarly colored clothing, although
several students protested that they did not belong to a gang.
3
The students’ parents were ultimately called, and though some
argued at length with the principal, the school imposed three-day
suspensions. Affidavits of the students and their parents assert
that the students were not allowed to urge their side of the story.
Some of the parents, however, volunteered that their children did
not belong to gangs. After serving their suspensions, the students
were given re-entry conferences, and they were then permitted to
return to school.
Ewing and AISD appeal from the denial of summary judgment.
II
In Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), the Supreme
Court held that “denial of a claim of qualified immunity to the
extent that it turns on an issue of law, is an appealable 'final
decision' within the meaning of 28 U.S.C. § 1291 notwithstanding
the absence of a final judgment.” See also Coleman v. Houston Ind.
Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997) (“'Denial of summary
judgment on the ground of qualified immunity is immediately
appealable to the extent that the question on appeal is whether the
undisputed facts amount to a violation of clearly established
law.'”) (quoting Kelly v. Foti, 77 F.3d 819, 821 (5th Cir. 1996)).
The inquiry is a subtle one, because the Supreme Court has
confined the Mitchell doctrine. A summary judgment determination
based upon whether there is sufficient evidence to create a genuine
issue of material fact, the Court has held, is not subject to
immediate appeal. See Hare v. City of Corinth, 74 F.3d 633, 638
(5th Cir. 1996) (citing Johnson v. Jones, 515 U.S. 304, 313
4
(1995)). Under Johnson, this court “cannot review whether the
evidence could support a finding that particular conduct occurred,
but can take, as given, the facts that the district court assumed
when it denied summary judgment and determine whether those facts
state a claim under clearly established law.” Southard v. Texas
Bd. of Criminal Justice, 114 F.3d 539, 548 (5th Cir. 1997)
(internal quotation marks and citations omitted); see also Nerren
v. Livingston Police Dep't, 86 F.3d 469, 472 (5th Cir. 1996).
In Behrens v. Pelletier, 516 U.S. 299 (1996), the Supreme
Court sought to explain the distinction:
Johnson held, simply, that determinations of evidentiary
sufficiency at summary judgment are not immediately
appealable merely because they happen to arise in a
qualified-immunity case; if what is at issue in the
sufficiency determination is nothing more than whether
the evidence could support a finding that particular
conduct occurred, the question decided is not truly
“separable” from the plaintiff’s claim, and hence there
is no “final decision” .... Johnson reaffirmed that
summary-judgment determinations are appealable when they
resolve a dispute concerning an “abstract issu[e] of law”
relating to qualified immunity, ... typically, the issue
whether the federal right allegedly infringed was
“clearly established.”
Id. at 313.
In Colston v. Barnhart, 146 F.3d 282 (5th Cir. 1998), we
applied the Supreme Court test and distinguished between genuine
issues of fact and material issues of fact. See id. at 284. We
cannot consider a claim “that the district court erroneously
concluded that a genuine issue of fact exists.” Id. Therefore, in
the instant case, we could not reexamine the plaintiffs’ affidavits
and determine that these affidavits did not present sufficient
evidence that the administrators failed to give them a chance to
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tell their side of the story.2 At the same time, we can consider
a claim “that a material issue of fact exists,” id., i.e. that the
legal conclusion the district court drew was incorrect. Thus, for
example, we would have jurisdiction to hold that meetings with
parents always provide adequate due process for children, or to
hold that the law does not require school officials to give
students a chance to tell their side of the story. Our inquiry
thus narrows to the straits of these guidelines.
III
In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court
required that before a school suspend a student, the student be
“given an opportunity to explain his version of the facts at this
discussion” by being “told what he is accused of doing and what the
basis of the accusation is.” Id. at 582. The Court further noted
that while such discussion “will add little to the fact-finding
function where the disciplinarian himself has witnessed the conduct
forming the basis for the charge ... the student will at least have
2
A caveat is that “where the district court does not identify
those factual issues as to which it believes genuine disputes
remain, an appellate court is permitted to go behind the district
court’s determination and conduct an analysis of the summary
judgment record to determine what issues of fact the district court
probably considered genuine.” Id. at 285. The magistrate judge
here held that there was a genuine issue of fact as to whether the
students had been given an opportunity to tell their side of the
story. While the record does not make clear whether the magistrate
judge concluded that administrators’ meetings with parents can be
adequate substitutes for meetings with the students provided the
parents relay the students’ stories, our best assessment is that
the magistrate judge also found a genuine issue of fact as to
whether the parents had been able to present their children’s
stories.
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the opportunity to characterize his conduct and put it in what he
deems the proper context.” Id. at 584.
The appellants seize on this latter language, arguing that the
disciplinarian here witnessed the conduct. But the relevant
“conduct” here is belonging to a gang, and the wearing of clothes
is merely evidence of that conduct.3 Moreover, this focus does not
confront the Supreme Court’s common sense admonition that “things
are not always as they seem to be, and the student will at least
have the opportunity to characterize his conduct and put it in what
he deems the proper context.” Id. We do not read Goss to exempt
conduct witnessed by the school official, and we are unpersuaded
that the students’ assumed inability to tell their stories was here
immaterial.
We need not decide here whether a meeting with a parent is
necessarily a sufficient substitute for a meeting between an
administrator and a student. We recognize that Goss speaks
immediately to the opportunity of students to defend themselves,
not an opportunity for parents to defend their children. Under
some circumstances, a parent may serve as an acceptable surrogate
for a student, whose story is told through the parent. As long as
3
Appellants note that Bowie had adopted a policy prohibiting
the wearing of any clothing in any manner other than that for which
it was designed, and stating that the school would take action if
a student’s appearance conflicted with the safety, health,
behavior, or learning environment within the school. The policy,
however, notably does not ban “reddish or maroonish” clothing.
Thus, the school officials did not directly witness prohibited
conduct, as would be the case if, for example, they caught a
student red-handed violating a weapons policy by smuggling a gun
into the school.
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the student’s story is told, either directly or through a reliable
intermediary standing in loco parentis to the child, the
requirements of Goss are met. Even given the parent’s power to act
as a surrogate for a child where the parent is given the
opportunity to tell the child’s side of the story, we cannot
disturb the district court’s factual conclusion that there is a
genuine issue as to whether the students were able to tell their
side of the story, including the parents in the mix. Our limited
jurisdiction also means that we cannot disturb this conclusion by
considering whether the re-entry conferences were adequate post-
deprivation hearings at which the students were given a chance to
tell their side of the story.4
The appellants contend in the alternative that the
administrators acted as reasonable public officials would and thus
are entitled to qualified immunity. Reasonable public officials,
however, could not differ on whether allowing the students to tell
their side of the story was required. To overcome the defense of
qualified immunity, a plaintiff must show that the contours of the
4
The Goss Court specified that the hearing should be
“preferably prior to the suspension,” 419 U.S. at 584, indicating
that a hearing subsequent to the suspension might be appropriate.
We have recognized before that post-suspension hearings may afford
students adequate procedural due process. In Sweet v. Childs, 518
F.2d 320, 321 (5th Cir. 1975), we held, “The post-suspension
student-parent conferences sufficed as informal ‘give-and-take’
sessions in which the students could air their views as to the
events leading up to the suspensions.” That case differed from this
one in that the students had left the school premises before the
suspensions were announced, so no hearing could have been held on
that day. The case nonetheless reaffirms the proposition that
predeprivation hearings are not always required.
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constitutional right were “sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Where
reasonable public officials could differ on the lawfulness of the
official’s actions, the official is entitled to qualified
immunity.” Cantu v. Rocha, 77 F.3d 795, 806 (5th Cir. 1996).
Appellants emphasize that it was reasonable for Ewing to be
concerned about the appearance and behavior of the students,
because he had heard that a gang fight was imminent. What is at
issue here, however, is not the appellants’ aims, but his means.
While he was free to suspend the students after hearing their
stories, Goss unambiguously required him to allow them to present
those stories, and if he did not do so, he violated the students’
due process rights.
We hold that given the district court’s finding that there was
insufficient summary judgment evidence to force the conclusion that
the students were able to tell their side of the story, we cannot
upset the summary judgment on the qualified immunity issue. Of
course, Principal Ewing still has a qualified immunity defense
available to him at trial. He thus may show that the students,
either personally or through their parents, were able to tell their
side of the story.
AFFIRMED.
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