Moore v. Willis Independent School District

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________

No. 99-21165

_______________________________

NANCY MOORE and GARRY MOORE,

As Next Friends of Aaron Moore;

Plaintiffs-Counter Defendants-Appellants,

versus

WILLIS INDEPENDENT SCHOOL DISTRICT

and ALAN BEENE,

Defendants-Counter Plaintiffs-Appellees.

_________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________

December 1, 2000

Before KING, Chief Judge, WIENER, Circuit Judge, and LYNN*,

District Judge.

WIENER, Circuit Judge:

Plaintiffs-Appellants are the parents of Aaron Moore, a minor,

(collectively, “the Moores”) who, they allege, sustained serious

injuries as a result of excessive exercise imposed as punishment by

his middle school gym teacher. They ask us to reverse the district

*

The Hon. Barbara M.G. Lynn, District Judge of the

Northern District of Texas, sitting by designation.

court’s summary judgment dismissal of all their claims. We affirm

the court’s grant of summary judgment for the Moores’ failure to

state a constitutional claim of deprivation of substantive due

process under the Fifth or Fourteenth Amendments to the U.S.

Constitution,1 but we reverse the district court’s exercise of

jurisdiction over the Moores’ supplemental state-law claims and

remand them to be dismissed without prejudice.

I.

FACTS AND PROCEEDINGS

Taken in the light most favorable to the Moores, the facts are

as follows. In February 1997, fourteen-year-old Aaron Moore was an

eighth-grade student at Lynn Lucas Middle School in the Willis

(Texas) Independent School District. Aaron was a student athlete

who had just finished the season playing on the school’s basketball

team and was looking forward to trying out for the track team. He

and approximately eighty other boys were enrolled in an elective

gym class of which Allen2 Beene was one of the teachers. On the

day in question, Beene observed Aaron talking to a classmate during

roll call, a violation of a class rule. As punishment, Beene told

Aaron to do 100 “ups and downs,” also known as squat-thrusts.3

1

U.S. Const. amend. V, XIV, § 1.

2

Beene’s first name was spelled incorrectly in the

pleadings.

3

In an affidavit, Beene described the exercise thus:

To perform an up-down the student starts in the

2

Aaron had not been subjected to similar punishment before, but he

understood that if he stopped during this punishment, he either

would be made to start over or would be sent to the principal’s

office. A classmate counted the 100 repetitions.

Aaron then participated in approximately twenty to twenty-five

minutes of weight lifting required of the gym class that day. He

did not complain to Beene of pain or fatigue, fearing that would

make matters worse. In the following days, however, Aaron was

diagnosed with rhabdomyolysis4 and renal failure; he also developed

esophagitis/gastritis. Aaron was hospitalized and missed three

weeks of school. He continues to experience fatigue, and has been

unable to participate in school sports or physical education class.

Plaintiff-Appellant Nancy Moore, Aaron’s mother, states that

Beene told her the “ups and downs” were a means of punishment

necessary to control middle school students. Mrs. Moore also

states that Beene told her that he had intentionally inflicted pain

on her son, explaining: “With high school kids you can have them

standing position, then squats until he can place

his hands flat on the floor. When the hands have

been placed on the floor the legs are then

extended fully to the rear while the arms remain

straight at the elbows with the torso elevated

above the floor. The legs are then drawn back

under the torso into a squatting position, and the

exercise is completed by returning to a standing

position.

4

Rhabdomyolysis is a degenerative disease of the skeletal

muscle that involves destruction of the muscle tissue, evidenced

by the presence of myoglobin in the urine.

3

do two ups and downs and they remember the next time. With junior

high kids, you have to inflict pain or they don’t remember.” Mrs.

Moore further states that the school district’s athletic director,

Ron Eikenberg, told her that “the coaches at the junior high were

out of control and they did their own thing.”

The Moores filed suit in federal district court against the

school district and Beene under 42 U.S.C. § 1983, alleging

violations of the First, Fifth, and Fourteenth Amendments to the

U.S. Constitution; against the school district under Title IX of

the Education Amendments of 1972, 20 U.S.C. § 1681 (a claim they

later non-suited); and against Beene alone for state-law claims of

negligence and intentional infliction of emotional distress. The

school district and Beene responded with motions to dismiss for

failure to state a claim under Rule 12(b)(6) of the Federal Rules

of Civil Procedure or for summary judgment under Rule 56. The

Moores conceded in their response to the summary judgment motion

that their First Amendment claim should be dismissed, leaving only

their substantive due process and state-law claims to be heard.

The matter was referred to a magistrate judge. She

recommended that the defendants’ motion for summary judgment be

granted as to all claims after concluding that the plaintiffs could

not allege a due process violation and that Beene was entitled to

official immunity from the state-law claims. The magistrate judge

subsequently filed a clarifying memorandum, making the same

recommendation. The district court issued a final order granting

4

the motion for summary judgment, and this appeal followed.

II

ANALYSIS

A. Summary Judgment Standard

This case is on appeal from a dismissal on summary judgment.

Therefore, we review the record de novo, applying the same standard

as the district court.5 A motion for summary judgment is properly

granted only if there is no genuine issue as to any material fact.6

An issue is material if its resolution could affect the outcome of

the action.7 In deciding whether a fact issue has been created, we

must view the facts and the inferences to be drawn therefrom in the

light most favorable to the nonmoving party.8

The standard for summary judgment mirrors that for judgment as

a matter of law.9 Thus, the court must review all of the evidence

in the record, but make no credibility determinations or weigh any

evidence.10 In reviewing all the evidence, the court must disregard

5

Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,

380 (5th Cir. 1998).

6

Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).

7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

8

Olabisiomotosho v. City of Houston, 185 F.3d 521, 525

(5th Cir. 1999).

9

Celotex, 477 U.S. at 323.

10

Reeves v. Sanderson Plumbing Products, Inc., __ U.S. __,

120 S. Ct. 2097, 2102 (2000).

5

all evidence favorable to the moving party that the jury is not

required to believe, and should give credence to the evidence

favoring the nonmoving party as well as to the evidence supporting

the moving party that is uncontradicted and unimpeached.11

B. Substantive Due Process

To state a claim under § 1983, a plaintiff must (1) allege a

violation of a right secured by the Constitution or laws of the

United States and (2) demonstrate that the alleged deprivation was

committed by a person acting under color of state law.12 A local

government entity, such as a school district, may be held liable

under § 1983 for constitutional violations committed pursuant to a

governmental policy or custom.13

The Moores cannot meet the initial requirement for stating a

§ 1983 claim against either defendant because under our precedent

the conduct of which they complain is not a constitutional

violation.14 We have held consistently that, as long as the state

provides an adequate remedy, a public school student cannot state

a claim for denial of substantive due process through excessive

11

Id. at 2110.

12

Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525

(5th Cir. 1994).

13

Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658

(1978).

14

See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (noting

that whether the plaintiff has been deprived of a right secured

by the Constitution is a threshold inquiry in a § 1983 claim).

6

corporal punishment, whether it be against the school system,

administrators, or the employee who is alleged to have inflicted

the damage. In Fee v. Herndon,15 we reiterated that “[c]orporal

punishment in public schools ‘is a deprivation of substantive due

process when it is arbitrary, capricious, or wholly unrelated to

the legitimate state goal of maintaining an atmosphere conducive to

learning.’”16 Educators in states that proscribe student

mistreatment and provide a remedy “do not, by definition, act

‘arbitrarily,’ a necessary predicate for substantive due process

relief.”17

We do recognize a student’s liberty interest in maintaining

bodily integrity. For example, we found that right to have been

violated by a teacher’s conduct in Doe v. Taylor.18 But Taylor is

distinguishable from Aaron’s case. Taylor involved the sexual

molestation of a student by her teacher, acts unrelated to any

legitimate state goal. In contrast, this case involves excessive

exercise imposed as punishment to maintain discipline, and

15

900 F.2d 804 (5th Cir. 1990), cert. denied, 498 U.S. 908

(1990).

16

Id. at 808 (citing Woodard v. Los Fresnos Indep. Sch.

Dist., 732 F.2d 1243, 1246 (5th Cir. 1984)).

17

Id.

18

15 F.3d 443 (5th Cir. 1994) (en banc), cert. denied, 513

U.S. 815 (1994); see also Jefferson v. Ysleta Indep. Sch. Dist.,

817 F.2d 303 (5th Cir. 1987) (finding a student’s substantive due

process right to be free from bodily restraint implicated by

allegations that she was tied to a chair for two days as part of

an instructional technique, not for punishment).

7

discipline is clearly a legitimate state goal. It must be

maintained in school classrooms and gymnasiums to create an

atmosphere in which students can learn.

By now, every school teacher and coach must know that

inflicting pain on a student through, inter alia, unreasonably

excessive exercise, violates that student’s constitutional right to

bodily integrity by posing a risk of significant injury. This

right is not implicated, however, when, as in this case, the

conduct complained of is corporal punishment – even unreasonably

excessive corporal punishment – intended as a disciplinary measure.

“Our precedents dictate that injuries sustained incidentally to

corporal punishment, irrespective of the severity of those injuries

or the sensitivity of the student, do not implicate the due process

clause if the forum state affords adequate post-punishment civil or

criminal remedies for the student to vindicate legal

transgressions.”19

If the Moores have an adequate remedy under Texas law for

Aaron’s alleged mistreatment, they cannot state a constitutional

claim and their federal claims must be dismissed. Accordingly, we

must examine the state remedies available to the Moores and the

adequacy of these remedies.

C. Availability and Adequacy of State Remedies

Texas law forbids excessive corporal punishment. Texas Penal

19

Fee, 900 F.2d at 808 (emphasis added).

8

Code § 9.62 immunizes educators against criminal responsibility

when they use non-lethal force against students, but only if they

act reasonably:

§ 9.62. Educator-Student

The use of force, but not deadly force, against a person

is justified:

(1) if the actor is entrusted with the care, supervision,

or administration of the person for a special purpose;

and

(2) when and to the degree the actor reasonably believes

the force is necessary to further the special purpose or

to maintain discipline in a group.

On the civil side, Texas law provides for liability of a school

employee who is negligent or uses excessive force in disciplining

students when such acts result in a student’s bodily injury.20

In Cunningham v. Beavers,21 a paddling case, we concluded that

Texas provides adequate traditional common-law remedies for

20

Section 22.051(a) of the Texas Education Code states:

A professional employee of a school district is

not personally liable for any act that is incident

to or within the scope of the duties of the

employee’s position of employment and that

involves the exercise of judgment or discretion on

the part of the employee, except in circumstances

in which a professional employee uses excessive

force in the discipline of students or negligence

resulting in bodily injury to students. (emphasis

added).

21

858 F.2d 269, 272 (5th Cir. 1988), cert. denied, 489

U.S. 1067 (1989); see also Fee, 900 F.2d at 810 (“We hold only

that since Texas has civil and criminal laws in place to

proscribe educators from abusing their charges, and further

provides adequate post-punishment relief in favor of students, no

substantive due process concerns are implicated because no

arbitrary state action exists.”).

9

students who have been subjected to excessive disciplinary force.

These remedies include the possibility of criminal conviction for

assault22 or injury to a child,23 as well as potential civil recovery

in tort.24 Under our precedent, these provisions of state law bar

the Moores from proving that Aaron’s alleged mistreatment was

arbitrary and thus preclude their prevailing on a substantive due

process claim against the school district or Beene. The district

court dutifully followed this precedent in dismissing the Moores’

constitutional claims as do we in affirming that dismissal.

D. Discovery

In addition to assigning error to the district court’s summary

judgment dismissal of their constitutional and state-law claims,

the Moores complain that the trial court erred in granting summary

judgment without allowing them leave to depose the defendants. We

review a district court’s discovery decisions for abuse of

discretion and will affirm such decisions unless they are arbitrary

or clearly unreasonable.25 The Moores have not shown that the

22

See Barr v. Bernhard, 562 S.W.2d 844, 849 (Tex. 1978);

Harris v. State, 203 S.W. 1089 (Tex. Crim. App. 1918); Hogenson

v. Williams, 542 S.W.2d 456 (Tex. Civ. App.-Texarkana, 1976).

23

See Tex. Penal Code § 22.04, Injury to a Child, Elderly

Individual, or Disabled Individual.

24

See, e.g., Grimes v. Stringer, 957 S.W.2d 865 (Tex.

App.-Tyler 1997, writ denied); Spacek v. Charles, 928 S.W.2d 88

(Tex. App.-Houston [14th Dist.] 1996, writ dismissed w.o.j.).

25

Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1441-42

(5th Cir. 1993).

10

district court abused its discretion. The Moores’ suit had been

pending for fourteen months when the magistrate judge recommended

that the district court grant summary judgment. The Moores make

the conclusional argument that they should have been allowed to

“fully explore the Defendants’ conduct, policy, procedures, and

intentions by taking their depositions,” but do not state what

relevant evidence they expected to uncover with additional

discovery. There is nothing arbitrary or unreasonable about the

court’s ruling on this point.

III.

CONCLUSION

We affirm the dismissal of the § 1983 claims asserted against

both defendants. As this leaves no remaining federal claims

involved in the case, we decline to exercise jurisdiction under 28

U.S.C. § 1367(c)(3) over the supplemental state-law claims. We

therefore reverse the summary judgment of the district court

adverse to the Moores on the remaining state-law claims and remand

those claims to that court for dismissal without prejudice.

AFFIRMED in part, REVERSED in part, and REMANDED.

11

WIENER, Circuit Judge, Specially Concurring:

In recent years, this circuit has become increasingly

isolated in our position that substantive due process cannot be

implicated by injuries that students suffer incidental to

disciplinary corporal punishment as long as the state affords

adequate civil or criminal remedies. I now perceive our isolation

to be total. Given our strict rule of stare decisis, however, this

panel could not invoke that trend to change our disposition of the

Moores’ claims. It nevertheless seems to me that the facts

surrounding Aaron’s alleged injury present a proper occasion for us

to re-examine our rule in light of this trend, regardless of the

possibility that in the end the coach’s actions and the extent and

degree of Aaron’s injuries might be deemed to fall short of a

substantive due process violation.

When the Supreme Court affirmed Ingraham v. Wright,1 a school

paddling case and our leading corporal punishment decision, the

Court ruled that subjecting students to corporal punishment without

prior notice and a hearing did not violate procedural due process.

The Court had limited its grant of certiorari in Ingraham, however,

to two questions: whether there was a procedural due process

violation and whether corporal punishment at school represented

cruel and unusual punishment.2 In so doing, the Court declined to

1

430 U.S. 651 (1977).

2

Id. at 659.

12

review a third question that we had answered in the negative in

Ingraham: Can severe corporal punishment constitute a substantive

due process violation?3

Although it focused on procedural requirements, the Court in

Ingraham did hold that corporal punishment implicates Fourteenth

Amendment liberty interests.4 The Court also observed that “there

can be no deprivation of substantive rights as long as disciplinary

corporal punishment is within the limits of the common-law

privilege.”5

The Supreme Court in Ingraham thus framed the threshold fact

question whether corporal punishment may rise to a substantive due

process violation: Did the corporal punishment imposed exceed the

common-law privilege historically afforded to school authorities

seeking to discipline students? I find more significant that which

the Court did not hold: It did not proclaim that an adequate

remedy provided by state law or procedure constitutes a per se bar

to a student’s ability to state a substantive due process claim

based on excessive corporal punishment. This significance is

heightened by the Supreme Court’s subsequent writing to the effect

that, unlike a procedural due process violation, a substantive due

3

Id. at 659 n.12, 679 n.47.

4

Id. at 674.

5

Id. at 676 (emphasis added).

13

process violation is complete when it occurs,6 making irrelevant

the availability of any post hoc state remedy.

Over the past two decades, we have established a line of panel

opinions, culminating in Fee v. Herndon,7 founded on the part of

our Ingraham decision that was not reviewed by the Supreme Court.

Through these holdings, we have solidly established that, when a

state sets reasonable limits and provides adequate remedies,

corporal punishment cannot constitute arbitrary state action and

therefore cannot support a claim grounded in a violation of

substantive due process. Yet, a careful reading of the cases that

make up this line of decisions reveals that we have never closely

examined the adequacy of those state remedies, instead simply

dismissing § 1983 claims against school districts and individual

defendants alike, regardless of whether they might be immune from

suit. (As a matter of fact, Texas school districts generally do

have state-law governmental immunity from tort claims brought by

6

See, e.g., Zinermon v. Burch, 494 U.S. 113, 125 (1990)

(noting that “the Due Process Clause contains a substantive

component that bars certain arbitrary, wrongful government

actions ‘regardless of the fairness of the procedures used to

implement them.’. . . [T]he constitutional violation actionable

under § 1983 is complete when the wrongful action is taken. A

plaintiff . . . may invoke § 1983 regardless of any state-tort

remedy that might be available to compensate him for the

deprivation of these rights.”) (citations omitted).

7

900 F.2d 804 (5th Cir. 1990); see Cunningham v. Beavers,

858 F.2d 269 (5th Cir. 1988), cert. denied, 489 U.S. 1067 (1989)

(construing Texas law); Woodard v. Los Fresnos Ind. Sch. Dist.,

732 F.2d 1243 (5th Cir. 1984) (Texas law); Coleman v. Franklin

Parish Sch. Bd., 702 F.2d 74 (5th Cir. 1983) (Louisiana law).

14

injured students.8)

In the instant case, the district court concluded that Coach

Beene was immune from tort liability under Texas’s common-law

official immunity.9 To reach that result, the court had to find

that Beene acted reasonably (and thus presumably within the common-

law disciplinary privilege identified by the Supreme Court in

Ingraham, signifying that no constitutional violation occurred).10

We acknowledged in Fee that, as to school corporal punishment cases

in general, “under Cunningham [plaintiffs’] choice of forum may be

restricted to state courts.”11 I submit that, if all defendants in

these cases prove to be immune from liability under Texas law, the

question is presented whether the state really provides a remedy to

injured students at all, much less an adequate one.

8

See, e.g., Barr v. Bernhard, 562 S.W.2d 844, 846 (Tex.

1978) (“The law is well settled in this state that an independent

school district is an agency of the state and, while exercising

governmental functions, is not answerable for its negligence in a

suit sounding in tort.”); Fee, 900 F.2d at 810 n.9 (assuming

without deciding that post-punishment relief is unavailable under

state law against school district, supervisor, and trustees).

9

Government employees are entitled to official immunity

from suit arising from the performance of their discretionary

duties in good faith as long as they act within the scope of

their authority. City of Lancaster v. Chambers, 883 S.W.2d 650,

653 (Tex. 1994).

10

We reversed that finding when we declined to exercise

jurisdiction over the state-law claims. We neither express nor

imply an opinion as to the severity of Aaron’s injuries, the

merits of the Moores’ tort claims, the reasonableness of Beene’s

conduct, his immunity from liability, or any other issues germane

to the Moores’ state-law claims.

11

900 F.2d at 809.

15

No other circuit has followed our lead on the issue of

substantive due process in school corporal punishment cases.

Relying on Ingraham and other Supreme Court decisions, the Third,12

Fourth,13 Sixth,14 Eighth,15 Tenth,16 and —— most recently —— the

12

Metzger v. Osbeck, 841 F.2d 518, 520 (3d Cir. 1988) (“A

decision to discipline a student, if accomplished through

excessive force and appreciable physical pain, may constitute an

invasion of the child’s Fifth Amendment liberty interest in his

personal security and a violation of substantive due process

prohibited by the Fourteenth Amendment.”).

13

Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)

(concluding that the “right to ultimate bodily security – the

most fundamental aspect of personal privacy – is unmistakably

established in our constitutional decisions as an attribute of

the ordered liberty that is the concern of substantive due

process. Numerous cases in a variety of contexts recognize it as

a last line of defense against those literally outrageous abuses

of official power whose very variety makes formulation of a more

precise standard impossible. . . . [W]e simply do not see how we

can fail also to recognize it in public school children under the

disciplinary control of public school teachers.”).

14

Saylor v. Bd. of Educ. of Harlan County, Ky., 118 F.3d

507, 514 (6th Cir. 1997).

15

London v. Directors of DeWitt Pub. Sch., 194 F.3d 873,

876-77 (8th Cir. 1999); Wise v. Pea Ridge Sch. Dist., 855 F.2d

560, 564 (8th Cir. 1988) (stating that “at some point the

administration of corporal punishment may violate a student's

liberty interest in his personal security and substantive due

process rights”).

16

Garcia v. Miera, 817 F.2d 650, 654 (10th Cir. 1987),

cert. denied, 485 U.S. 959 (1988) (“Although Ingraham makes clear

that ordinary corporal punishment violates no substantive due

process rights of school children, by acknowledging that corporal

punishment implicates a fundamental liberty interest protected by

the Due Process Clause, we believe that opinion clearly signaled

that, at some degree of excessiveness or cruelty, the meting out

such punishment violates the substantive due process rights of

the pupil.”).

16

Eleventh17 circuits have determined that excessive corporal

punishment can indeed violate a student’s substantive due process

rights, irrespective of the availability of an adequate state law

remedy. Additionally, the Ninth Circuit has held that students are

protected from excessive force under either the Fourth Amendment or

the Due Process Clause,18 and the Seventh Circuit has held that

unreasonable liberty restrictions or corporal punishment could

violate a public school student’s Fourth Amendment rights.19

Very recently, in Neal v. Fulton County Bd. of Educ.,20 the

Eleventh Circuit held that a student who was blinded in one eye

when his football coach punished him for fighting by hitting him

with a weight lock, stated a claim for a substantive due process

violation through excessive corporal punishment. In Neal the

Eleventh Circuit wrote that “[t]he vast majority of Circuits have

concluded that substantive due process principles established by

17

Neal v. Fulton County Bd. of Educ., __ F.3d __, 2000 WL

1480393 (11th Cir. 2000).

18

P.B. v. Koch, 96 F.3d 1298, 1303 n.4, 1304 (9th Cir.

1996) (stating that principal who physically assaulted students

violated their clearly established constitutional rights, but

noting that “for purposes of resolving this qualified immunity

appeal, we need not and do not resolve the question of whether

the Fourth Amendment, rather than the Due Process Clause,

protects a student from the use of excessive force by a school

official.”).

19

Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1014-16

(7th Cir. 1995) (evaluating corporal punishment under Fourth

Amendment seizure standard and rejecting plaintiff student’s

theory of recovery under both Fourth and Fourteenth Amendments).

20

2000 WL 1480393.

17

the Supreme Court protect a student from corporal punishment that

is intentional, obviously excessive, and creates a foreseeable risk

of serious injury.”21 The Neal court construed its binding

precedent —— specifically, the “old” Fifth Circuit’s decision in

Ingraham22 —— and concluded that this court “did not say that under

no set of circumstances could corporal punishment rise to the level

of a constitutional violation.”23 The Neal court went on to

distinguish Ingraham by noting that, in addition to having found

the concept of corporal punishment neither arbitrary nor unrelated

to legitimate educational goals, the old Fifth had examined an

existing school policy and declined to assess individual

punishments administered under that policy.

The Eleventh Circuit concluded that the Supreme Court’s

decision in Ingraham “strongly suggested a favorable view” of the

position that excessive corporal punishment can violate substantive

due process rights.24 Through Neal, the Eleventh Circuit “join[ed]

the vast majority of Circuits in confirming that excessive corporal

punishment, at least where not administered in conformity with a

valid school policy authorizing corporal punishment as in Ingraham,

may be actionable under the Due Process Clause when it is

21

Id. at *1.

22

525 F.2d 909, 916-17 (5th Cir. 1976) (en banc).

23

Neal, 2000 WL 1480393, at *3.

24

Id. at *4.

18

tantamount to arbitrary, egregious, and conscience-shocking

behavior.”25

It now seems clear to me that in Fee we placed too much

reliance on the mere existence of putative state-law remedies when

we answered in the negative the question “whether the federal

Constitution independently shields public school students from

excessive discipline.”26 The notion that no student injury

inflicted under the banner of discipline —— regardless of how

shocking or severe —— can be the result of arbitrary action as long

as relevant state laws are in place, flies in the face of the

constitutional concept of substantive due process as viewed by at

least seven other federal appellate courts that have addressed this

question. Conversely, I find no other circuit in accord with our

position as exemplified by Fee.

Reluctant as each of us is to have the federal courts become

any more involved than we must in such local concerns as school

discipline —— and rightly so —— I respectfully but earnestly

suggest that now is the time for this court, sitting en banc, to

re-examine its position. Can we be the only circuit that is “in

step” and all the rest out of step? We should not demur in our own

housekeeping chores and merely leave to the Supreme Court the job

of eliminating the existing split between this one circuit and all

25

Id. at *5.

26

Fee, 900 F.2d at 808.

19

the rest that have announced an opposite position on the subject.

20