Glendle Cain, III v. Owensboro Public Schools

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0078p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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G.C.,

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Plaintiff-Appellant,

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No. 11-6476

v.

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OWENSBORO PUBLIC SCHOOLS; LARRY VICK, -

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in his individual capacity as Superintendent

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of Owensboro High School; ANITA

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BURNETTE, in her individual capacity as

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Principal of Owensboro High School;

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MELISSA BROWN and CHRISTINA SMITH, in

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their individual capacities as Assistant

Principals of Owensboro High School, -

Defendants-Appellees. N

Appeal from the United States District Court

for the Western District of Kentucky at Owensboro.

No. 4:09-cv-102—Joseph H. McKinley, Jr., Chief District Judge.

Argued: January 24, 2013

Decided and Filed: March 28, 2013

Before: NORRIS, MOORE, and DONALD, Circuit Judges.

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COUNSEL

ARGUED: Edward E. Dove, DOVE LAW OFFICE, Lexington, Kentucky, for

Appellant. Michael A. Owsley, ENGLISH, LUCAS, PRIEST & OWSLEY, LLP,

Bowling Green, Kentucky, for Appellees. ON BRIEF: Edward E. Dove, DOVE LAW

OFFICE, Lexington, Kentucky, for Appellant. Michael A. Owsley, ENGLISH, LUCAS,

PRIEST & OWSLEY, LLP, Bowling Green, Kentucky, for Appellees.

MOORE, J., delivered the opinion of the court, in which DONALD, J., joined,

and NORRIS, J., joined in part. NORRIS, J. (pp. 18–19), delivered a separate opinion

concurring in part and dissenting in part.

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No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 2

_________________

OPINION

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KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant G.C. began

attending school in the Owensboro Public School District as an out-of-district student

in 2005. In September 2009, G.C. was caught sending text messages in class. School

officials confiscated his cell phone and read the text messages. Because this was the last

in a series of disciplinary infractions, Superintendent Dr. Larry Vick (“Vick”) revoked

G.C.’s out-of-district status, barring him from attending Owensboro High School. G.C.

filed suit, raising both federal and state-law claims against Defendants-Appellees

Owensboro Public Schools, Vick, Principal Anita Burnette (“Burnette”), Assistant

Principal Melissa Brown (“Brown”), and Assistant Principal Christina Smith (“Smith”),

(collectively, “defendants”). The defendants moved for summary judgment, which the

district court granted.

G.C. appeals the district court’s resolution of three of his claims: (1) his due-

process claim, in which he argues that he was denied a hearing prior to expulsion as

required by Kentucky statute; (2) his Fourth Amendment claim based on the September

2009 search, in which he contends that school officials violated his constitutional rights

when they read text messages on his phone without the requisite reasonable suspicion;

and (3) his Rehabilitation Act claim, in which he argues that the defendants failed to

identify him as disabled under § 504.

For the reasons stated below, we REVERSE the district court’s grant of

summary judgment on G.C.’s due-process claim and on G.C.’s Fourth Amendment claim

based on the September 2009 search. We AFFIRM the district court’s grant of

summary judgment on G.C.’s Rehabilitation Act claim. We REMAND for further

proceedings consistent with this opinion.

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 3

I. BACKGROUND

From 2005 to 2008, G.C. enrolled as an out-of-district student in the Owensboro

Public School District. R. 69-17 (Vick Aff. at ¶ 5) (Page ID #499); R.69-3 (G.C. Tr. at

10:4–21) (Page ID #359). Owensboro Public School District has a reciprocal agreement

with Daviess County Public School District, the district where G.C.’s parents reside, that

allows a limited number of students to enroll in the district where they do not reside. R.

69-17 (Vick Aff. at ¶ 3) (Page ID #499). As explained by Vick, “[o]ut-of-district

students who attend the [Owensboro Public School District] do so pursuant to Board

[P]olicy 09.125 . . . . This policy provides in pertinent part, ‘The continued enrollment

of non-resident students in the District’s schools is subject to the recommendation of the

school Principal and the approval of the Superintendent.’” Id. ¶ 4 (quoting R. 19, Ex.

A (Board Policy 09.125 at 1) (Page ID #117)). Under this policy, “[n]onresident

students are defined as those whose parent or guardian resides outside the District.” R.

19, Ex. A (Board Policy 09.125 at 1) (Page ID #117).

During his freshman year at Owensboro High School, G.C. began to have

disciplinary problems. Shortly thereafter, he communicated with school officials that

he used drugs and was disposed to anger and depression. The relevant incidents and

discussions are as follows. On September 12, 2007, the first incident in the record, G.C.

was given a warning for using profanity in class. R. 69-7 (Referral at 1) (Page ID #466).

In February 2008, G.C. visited Smith’s office and expressed to Smith “that he was very

upset about an argument he had with his girlfriend, that he didn’t want to live anymore,

and that he had a plan to take his life.” R. 69-8 (Smith Aff. at ¶ 4) (Page ID #467). In

this same meeting, G.C. told Smith “that he felt a lot of pressure because of football and

school and that he smoked marijuana to ease the pressure.” Id. ¶ 5. As a result of this

interaction, Smith met with G.C.’s parents and suggested that he be evaluated for mental

health issues. Id. ¶ 6. G.C.’s parents took him to a treatment facility that day. Id.; R.

69-28 (Bio-Psycho Social Assessment) (Page ID #536–48).

On November 12, 2008, G.C. was given a warning for excessive tardies, and on

November 17, 2008, G.C. was disciplined for fighting and arguing in the boys locker

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 4

room. R. 69-12 (Referrals at 1) (Page ID #490). On March 5, 2009, G.C. walked out

of a meeting with Summer Bell, the prevention coordinator at the high school, and left

the building without permission. R. 69-8 (Smith Aff. at ¶ 7) (Page ID #468); R. 69-10

(Bell Tr. at 40:19–21) (Page ID #484). G.C. made a phone call to his father and was

located in the parking lot at his car, where there were tobacco products in plain view.

R. 69-8 (Smith Aff. at ¶ 8) (Page ID #468). G.C. then went to Smith’s office, and Smith

avers that G.C. “indicated he was worried about the same things we had discussed before

when he had told me he was suicidal.” Id. She states that she “was very concerned

about [G.C.’s] well-being because he had indicated he was thinking about suicide again.

I, therefore, checked [G.C.’s] cell phone to see if there was any indication he was

thinking about suicide.” Id. ¶ 9. The record also indicates that G.C. visited a treatment

center that day, and the counselor recommended that he be admitted for one to two

weeks. R. 69-28 (Bio-Psycho Social Assessment) (Page ID #560–61).

On March 9, 2009, school officials convened a hearing with G.C. and his parents

regarding the March 5 incident, at which both G.C. and school officials gave testimony.

R. 69-13 (Hearing Minutes at 1–2) (Page ID #491–92 ). G.C. was placed on probation

and assigned four days of in-school suspension. Id. at 3 (Page ID #493). On April 8,

2009, G.C. was suspended after yelling and hitting a locker. R. 69-15 (Referral at 1)

(Page ID #497). At the end of the 2008–09 academic year, Burnette recommended that

Vick revoke G.C.’s authorization to attend Owensboro High School. R. 69-17 (Vick

Aff. at ¶ 10) (Page ID #500). Vick did not follow this recommendation, and on June 15,

2009, he met with G.C.’s parents to discuss “what was expected of [G.C.] to be

permitted to continue attending the [Owensboro Public School District] as an out-of-

district student.” Id. According to Vick, he described the expectations as follows:

At this meeting, I explained to [G.C.’s] parents that they had three

options regarding their son’s education. First, I told them they could

send [G.C.] to the [Daviess County Public School District] since they

resided in that school district with their son. I told them their second

option was to actually move into the [Owensboro Public School District]

and that, upon so doing, [G.C.] would be entitled to all the rights of a

resident student. Finally, I told them that despite . . . Burnette’s

recommendation, I would allow [G.C.] to continue to attend school in the

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 5

[Owensboro Public School District] as a non-resident student for the

2009–10 school year on the condition and understanding that, if he had

any further disciplinary infraction, this privilege would be immediately

revoked and he would be required to return to his home school district.

Id. ¶ 11.

On August 6, 2009, G.C.’s parents registered G.C. to attend Owensboro High

School for the 2009–10 academic year. R. 69-16 (Registration Form at 1) (Page ID

#498). Unlike in years past, however, they filled out an in-district registration form and

listed G.C.’s physical address as that of his grandparents, who lived in the Owensboro

Public School District. Id. On the same form, they stated that G.C. lived with his

parents, who maintained their residence in the Daviess County School District. Id.

On September 2, 2009, G.C. violated the school cell-phone policy when he was

seen texting in class. R. 69-4 (Brown Aff. at ¶ 4) (Page ID #384). G.C.’s teacher

confiscated the phone, which was brought to Brown, who then read four text messages

on the phone. Id. ¶¶ 4–6 (Page ID #384–85). Brown stated that she looked at the

messages “to see if there was an issue with which I could help him so that he would not

do something harmful to himself or someone else.” Id. ¶ 6 (Page ID #385). Brown

explained that she had these worries because she “was aware of previous angry outbursts

from [G.C.] and that [he] had admitted to drug use in the past. I also knew [he] drove

a fast car and had once talked about suicide to [Smith]. . . . I was concerned how [he]

would further react to his phone being taken away and that he might hurt himself or

someone else.” Id. ¶ 5 (Page ID #384–85).

After this incident, Burnette recommended to Vick that G.C.’s out-of-district

privilege be revoked, and this time Vick agreed. R. 69-17 (Vick Aff. at ¶ 16) (Page ID

#501). G.C.’s parents were contacted and told that they could appeal the decision if

desired. Id. ¶¶ 17–19. (Page ID #501–02). On October 15, 2009, Vick, Burnette, and

other school officials met with G.C.’s parents and their attorney. Id. ¶ 21 (Page ID

#502). Vick explained that G.C. “had violated the condition of his out-of-district

privilege to attend Owensboro High School by texting in class.” Id. Despite the

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 6

revocation, Vick avers that G.C. continued to have the right to attend high school in

Daviess County. Id. ¶ 22 (Page ID #503).

On October 21, 2009, G.C. filed an action for declaratory and injunctive relief,

as well as compensatory and punitive damages, in the U.S. District Court for the Western

District of Kentucky. R. 1 (Compl.) (Page ID #1). G.C. alleged violations of his First,

Fourth, and Fifth Amendment rights as well as violations of the Kentucky Constitution.

Id. at ¶¶ 18–37 (Page ID #1–5). G.C. moved for a temporary restraining order and

preliminary injunction, seeking to enjoin the defendants from denying G.C. his right to

an education, which the district court denied on November 16, 2009. R. 6 (Pl.’s Mot.

at 1) (Page ID #36); R. 20 (Order Denying Preliminary Injunctive Relief at 1) (Page ID

#123). G.C. then amended his complaint to include a Rehabilitation Act claim. R. 36

(First Am. Compl. at ¶¶ 39–48) (Page ID #195–96). On June 2, 2011, the defendants

filed a motion for summary judgment on all of G.C.’s claims, which the court granted

as to G.C.’s federal claims. R. 69-1 (Defs.’ Mot. for Summ. J. at 1) (Page ID #315);

R. 85 (Order at 25) (Page ID #767). The court declined to exercise supplemental

jurisdiction over G.C.’s state-law claims. R. 85 (Order at 25) (Page ID #767). In the

same order, the district court denied G.C.’s motion requesting a Daubert hearing on the

qualifications of the defendants’ Rehabilitation Act expert witness. Id. at 19–21.

(Page ID #761–63).

II. STANDARD OF REVIEW

“We review de novo a district court’s grant of summary judgment.” Dye v.

Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012). “We review the

evidence and draw all inferences in the light most favorable to . . . the nonmoving

part[y].” Id. Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a).

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 7

III. DUE-PROCESS CLAIM

In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court held that the Due

Process Clause applies to suspension or expulsion from school where a state has

conferred a property interest in a public education. Id. at 572–74. For suspensions of

no more than ten days, the Court in Goss explained that the Fourteenth Amendment

requires “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.” Id. at 581. The Supreme Court did not enumerate the

process required for other disciplinary actions, but indicated that “[l]onger suspensions

or expulsions for the remainder of the school term, or permanently, may require more

formal procedures.” Id. at 584. After Goss, this court determined that “[a] student faced

with expulsion has the right to a pre-expulsion hearing before an impartial trier-of-fact.”

Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 927 (6th Cir. 1988). “As a general

rule the hearing should be given before removal from the school unless the student’s

presence is dangerous or disruptive.” Buchanan v. City of Bolivar, 99 F.3d 1352, 1359

(6th Cir. 1996).

Kentucky has codified these principles in §158.150 of the Kentucky Revised

Statutes, which governs suspension and expulsion of a student from school. KY. REV.

STAT. ANN. § 158.150 (West 2006). This provision describes, among other things, the

procedures that a school district is required to provide prior to imposing an expulsion:

“The board of education of any school district may expel any pupil for misconduct as

defined in subsection (1) of this section, but the action shall not be taken until the parent,

guardian, or other person having legal custody or control of the pupil has had an

opportunity to have a hearing before the board.” Id. § 158.150(6). The Owensboro

Public School District has expressly incorporated this provision into its Code of

Conduct: “Expulsion—Upon the recommendation of the Superintendent the Board of

Education may expel a student. Expulsion actions shall be conducted in accordance with

the provisions of KRS 158.150.” R. 69-5 (Code of Conduct at 12) (Page ID #399).

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 8

As it is not disputed for the purposes of this appeal that G.C. did not receive a

pre-expulsion hearing, G.C.’s due-process claim turns on whether G.C. was actually

expelled from Owensboro High School. Although the parties and the district court

addressed at some length whether G.C. was an in-district student for the 2009–10

academic year, we need not consider this issue because even assuming he was an out-of-

district student, we conclude that he would still be entitled to due process. See KY. REV.

STAT. ANN. § 158.150(6) (requiring a hearing before the expulsion of “any pupil” from

“any school district”). Concerning the expulsion, G.C. argues that revocation of the

privilege to attend an out-of-district school is the functional equivalent of an expulsion,

contending that an Opinion of the Kentucky Attorney General endorses this position.

Appellant Br. at 27. The defendants reject this construction of an expulsion, arguing

instead that Vick merely revoked G.C.’s privilege to attend Owensboro High School as

an out-of-district student. Appellees Br. at 29–31. The defendants rely on Board Policy

09.125, entitled “Reciprocal Agreements with Other School Districts for Nonresident

Students,” which they argue gave Vick the discretion to remove an out-of-district student

for any reason and at any time. Id. at 30. The district court agreed with the defendants,

concluding that “[b]ecause G.C. attended Owensboro High School at the unfettered

discretion of the Superintendent and because he did not reside in that School District,

G.C. did not have a property interest in an education within the Owensboro Public

School District.” R. 85 (Order at 13) (Page ID #755).

As an initial matter, we cannot agree that Board Policy 09.125 confers unfettered

discretion to Vick to remove out-of-district students at any time and for any reason.

Board Policy 09.125 makes clear that the superintendent possesses discretion as to the

enrollment and continued enrollment of out-of-district students. R. 19, Ex. A (Board

Policy 09.125 at 1) (Page ID #117) (“A nonresident student may be permitted to enroll

in the District’s schools . . . [if] permission is granted by the Superintendent or

Superintendent’s designee.”); id. (“The continued enrollment of nonresident students in

the District’s schools is subject to the recommendation of the school Principal and the

approval of the Superintendent.”). It does not, however, extend this discretion to a

student’s continued attendance at an Owensboro Public School District school. The

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 9

distinction between “attend” and “enroll” under Kentucky law is well-documented. In

fact, the Kentucky Supreme Court recently explained this distinction by examining both

the common understanding of the terms and their meanings as codified in the Revised

Statutes. Jefferson Cnty. Bd. of Educ. v. Fell, — S.W.3d —, No. 2011-SC-000658-DGE,

2012 WL 4243659, at *5 (Ky. Sept. 20, 2012). The court first recognized that as defined

by Webster’s II New College Dictionary (1995) and the American Heritage Dictionary

of the English Language (4th ed. 2006), the terms “‘enroll’ and ‘attend’ are not

synonymous.” Id. Enroll is defined as “[t]o enter the name of in a record, register, or

roll”; whereas attend is defined as “[t]o be present at: attended class.” Id. (internal

quotation marks omitted). The court further noted that the legal definitions of these

terms are similarly distinct under Kentucky Revised Statutes chapter 159. Id. at *7 (“[I]t

is also evident that the legislature has distinguished ‘enroll’ from ‘attend’ in other parts

of . . . KRS Chapter [(159)].”).

As applied to this context, then, we understand the term “enroll” to refer to a

student’s registration at the beginning of the academic year and the term “attend” to

denote a student’s presence during the academic year. We thus conclude that Board

Policy 09.125 confers to Vick the authority to deny an out-of-district student’s

application for enrollment at the beginning of the academic year, even if the student had

enrolled as an out-of-district student in previous years, but it does not extend to Vick the

power to remove unilaterally and without process a student from the Owensboro Public

School District after the academic year has commenced.

Additionally, reading Board Policy 09.125 as vesting Vick with the limited

discretion to approve enrollments at the commencement of an academic year comports

with the Opinion of the Kentucky Attorney General 79-327 (“OAG 79-327”), which

explains that “[o]nce a student is permitted to enroll in a nonresident school for a school

year, we believe the law applicable to student conduct and the possibility of suspension

and/or expulsion under KRS 158.150 comes into play.” Ky. Op. Att’y Gen. 79-327,

1979 WL 33461 (1979). Further, OAG 79-327 expressly denotes revocation of out-of-

district status as an expulsion: “Termination of the privilege of attending a nonresident

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 10

school during the course of a school year is in fact an expulsion and must be so handled

and effected only after a hearing before the ‘foreign’ board of education.” Id. Under

this interpretation of Kentucky law, which we find persuasive, the defendants would

have been required to hold a hearing prior to revoking G.C.’s out-of-district status.

The district court, however, declined to follow OAG 79-327, noting that

Opinions of the Kentucky Attorney General are not binding on the courts. R. 85 (Order

at 13 n.4) (Page ID #755). Instead, the district court relied on what it considered to be

binding authority from our court, Daniels v. Woodside, 396 F.3d 730 (6th Cir. 2005).

We disagree, though, that Daniels controls the analysis. Although the framework of the

program in Daniels mirrors that of the out-of-district reciprocal agreement at issue here,

the manner in which Daniels was precluded from participation in the program differs in

a critical manner. Id. at 737 (explaining that the superintendent exercised discretion to

admit students). Unlike here where G.C. was removed after the commencement of the

school year, in Daniels the superintendent “denied Daniels’s request for readmission”

when Daniels “was required to seek re-enrollment for the following semester.” Id. at

733. In Daniels, the superintendent was acting within his clear discretion to admit or

deny students seeking readmission when he made the determination to deny Daniels’s

application. We thus concluded that Daniels was not denied due process. Id. at 737.

Had Vick rejected G.C.’s August 2009 application to enroll in Owensboro High School

for the 2009–10 academic year, Daniels would control. Because Vick removed G.C.

during the academic year, however, Daniels is inapposite.

Moreover, the concept of de facto expulsions is not new to this court. See, e.g.,

Wayne v. Shadowen, 15 F. App’x 271, 290 (6th Cir. 2001) (recognizing the constructive-

expulsion argument, yet ultimately finding that the restriction at issue “was not

tantamount to permanent and complete expulsion from the school system”); Ashiegbu

v. Williams, No. 97-3173, 1997 WL 720477, at *1 (6th Cir. Nov. 12, 1997) (“It is

initially noted that an indefinite suspension is the functional equivalent of a permanent

expulsion.”); see also Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1012 (7th

Cir. 2002) (“[W]hen a penalty that is tantamount to expulsion is involved, the school

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 11

authority must afford the student an opportunity to present evidence and argument in

mitigation.”) (internal quotation marks omitted). We therefore conclude that OAG 79-

327 is not in conflict with our precedent.

Given that neither this court nor any Kentucky court has defined the term

“expulsion” under § 158.150 or interpreted a reciprocal agreement such as that at issue

here, we adopt the recommendation of OAG 79-327. The Kentucky courts rely

frequently on Opinions of the Attorney General; in fact, the Kentucky Supreme Court

recently underscored their importance, remarking that “[w]hile not binding on courts,

Opinions of the Attorney General are considered highly persuasive and have been

accorded great weight.” Carter v. Smith, 366 S.W.3d 414, 420 n.2 (Ky. 2012). We thus

conclude that G.C. has proffered evidence demonstrating that he was expelled from

Owensboro High School. Moreover, as we have determined that under Kentucky law,

all students are afforded due process prior to expulsion, regardless of their in-district or

out-of-district status, the district court erred in granting the defendants’ summary

judgment motion on G.C.’s due-process claim. We therefore REVERSE the district

court’s due-process determination.

IV. FOURTH AMENDMENT CLAIM

G.C. argues that the district court erred when it granted summary judgment to the

defendants on his Fourth Amendment claim. G.C. conceded at oral argument that the

March 2009 search of his cell phone was justified in light of the surrounding

circumstances, yet maintains that the September 2009 search was not supported by a

reasonable suspicion that would justify school officials reading his text messages. The

defendants respond that reasonable suspicion existed to search his phone in September

2009 given his documented drug abuse and suicidal thoughts, particularly under the

lower standard applied to searches in a school setting. Appellees Br. at 21–26. They

argue that the searches were limited and “aimed at uncovering any evidence of illegal

activity” or any indication that G.C. might hurt himself. Id. at 28.

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The Supreme Court has implemented a relaxed standard for searches in the

school setting:

[T]he legality of a search of a student should depend simply on the

reasonableness, under all the circumstances, of the search. Determining

the reasonableness of any search involves a twofold inquiry: first, one

must consider whether the action was justified at its inception; second,

one must determine whether the search as actually conducted was

reasonably related in scope to the circumstances which justified the

interference in the first place.

New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985) (internal quotation marks, citation,

and alterations omitted). “A student search is justified in its inception when there are

reasonable grounds for suspecting that the search will garner evidence that a student has

violated or is violating the law or the rules of the school, or is in imminent danger of

injury on school premises.” Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 495–96

(6th Cir. 2008). “Such a search will be permissible in its scope when the measures

adopted are reasonably related to the objectives of the search and not excessively

intrusive in light of the age and sex of the student and the nature of the infraction.”

T.L.O., 469 U.S. at 342. “In determining whether a search is excessive in its scope, the

nature and immediacy of the governmental concern that prompted the search is

considered.” Brannum, 516 F.3d at 497 (internal quotation marks omitted). “In order

to satisfy the constitutional requirements, the means employed must be congruent to the

end sought.” Id.

Because this court has yet to address how the T.L.O. inquiry applies to the search

of a student’s cell phone, the parties point to two district court cases that have addressed

this issue. In J.W. v. DeSoto County School District, No. 2:09-cv-00155-MPM-DAS,

2010 WL 4394059 (N.D. Miss. Nov. 1, 2010), the case relied upon by the defendants

and cited by the district court, a faculty member observed a student using his cell phone

in class, took the cell phone from the student, and “opened the phone to review the

personal pictures stored on it and taken by [the student] while at his home.” Id. at *1.

The district court found the faculty member’s actions reasonable, explaining that “[i]n

assessing the reasonableness of the defendants’ actions under T.L.O., a crucial factor is

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 13

that [the student] was caught using his cell phone at school.” Id. at *4. The court further

reasoned that “[u]pon witnessing a student improperly using a cell phone at school, it

strikes this court as being reasonable for a school official to seek to determine to what

end the student was improperly using that phone.” Id.

Such broad language, however, does not comport with our precedent. A search

is justified at its inception if there is reasonable suspicion that a search will uncover

evidence of further wrongdoing or of injury to the student or another. Not all infractions

involving cell phones will present such indications. Moreover, even assuming that a

search of the phone were justified, the scope of the search must be tailored to the nature

of the infraction and must be related to the objectives of the search. Under our two-part

test, using a cell phone on school grounds does not automatically trigger an essentially

unlimited right enabling a school official to search any content stored on the phone that

is not related either substantively or temporally to the infraction. Because the crux of

the T.L.O. standard is reasonableness, as evaluated by the circumstances of each case,

we decline to adopt the broad standard set forth by DeSoto and the district court.

G.C. directs the panel to Klump v. Nazareth Area School District, 425 F. Supp.

2d 622 (E.D. Pa. 2006), a case in which a student was seen using his cell phone,

followed by two school officials accessing the student’s text messages and voice mail;

searching the student’s contacts list; using the phone to call other students; and having

an online conversation with the student’s brother. Id. at 630. The court initially

determined that the school officials were “justified in seizing the cell phone, as [the

student] had violated the school’s policy prohibiting use or display of cell phones during

school hours.” Id. at 640. The court found that the school officials were not, however,

justified in calling other students, as “[t]hey had no reason to suspect at the outset that

such a search would reveal that [the student] himself was violating another school

policy.” Id. The court further discussed the text messages read by the school officials,

concluding that although the school officials ultimately found evidence of drug activity

on the phone, for the purposes of a Fourth Amendment claim, the court must consider

only that which the officials knew at the inception of the search: “the school officials

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 14

did not see the allegedly drug-related text message until after they initiated the search

of [the] cell phone. Accordingly, . . . there was no justification for the school officials

to search [the] phone for evidence of drug activity.” Id. at 640–41. We conclude that

the fact-based approach taken in Klump more accurately reflects our court’s standard

than the blanket rule set forth in DeSoto.

G.C.’s objection to the September 2009 search centers on the first step of the

T.L.O. inquiry—whether the search was justified at its inception. G.C. argues that the

school officials had no reasonable grounds to suspect that a search of his phone would

result in evidence of any improper activity. The defendants counter that the search was

justified because of G.C.’s documented drug abuse and suicidal thoughts. Appellees Br.

at 26. Therefore, they argue, the school officials had reason to believe that they would

find evidence of unlawful activity on G.C.’s cell phone or an indication that he was

intending to harm himself or others. Id. at 26–27.

We disagree, though, that general background knowledge of drug abuse or

depressive tendencies, without more, enables a school official to search a student’s cell

phone when a search would otherwise be unwarranted. The defendants do not argue,

and there is no evidence in the record to support the conclusion, that the school officials

had any specific reason at the inception of the September 2009 search to believe that

G.C. then was engaging in any unlawful activity or that he was contemplating injuring

himself or another student. Rather, the evidence in the record demonstrates that G.C.

was sitting in class when his teacher caught him sending two text messages on his phone.

R. 69-4 (Brown Aff. at ¶ 4) (Page ID #384). When his phone was confiscated by his

teacher pursuant to school policy, G.C. became upset. Id. ¶ 3. The defendants have

failed to demonstrate how anything in this sequence of events indicated to them that a

search of the phone would reveal evidence of criminal activity, impending contravention

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 15

of additional school rules, or potential harm to anyone in the school.1 On these facts, the

defendants did not have a reasonable suspicion to justify the search at its inception.

The defendants further argue that G.C.’s claim must fail because he did not suffer

any harm as a result of the search; specifically, they point to the fact that he “was not

disciplined based on the contents of his phone.” Appellees Br. at 28. However, the issue

of injury and compensable damages has not been developed before us. Even if G.C.

cannot establish compensable damages, he may be entitled to nominal damages. See

Carey v. Piphus, 435 U.S. 247, 266 (1978) (“[W]e believe that the denial of procedural

due process should be actionable for nominal damages without proof of actual injury.”);

Slicker v. Jackson, 215 F.3d 1225, 1231 (11th Cir. 2000) (“We have held unambiguously

that a plaintiff whose constitutional rights are violated is entitled to nominal damages

even if he suffered no compensable injury.”); Briggs v. Marshall, 93 F.3d 355, 360

(7th Cir. 1996) (recognizing that nominal damages are available for Fourth Amendment

claims). Moreover, punitive damages sometimes attach to an award comprised solely

of nominal damages. See Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 645

(6th Cir. 2005) (“But this is a § 1983 case in which the basis for the punitive damages

award was the plaintiff's unlawful arrest and the plaintiff's economic injury was so

minimal as to be essentially nominal.”). Therefore, we remand to the district court to

address the issue of injury and damages in the first instance.

We therefore REVERSE the district court’s grant of summary judgment as to

G.C.’s Fourth Amendment claim based on the September 2009 search.

1

The ordinary nature of the September 2009 infraction is highlighted further when contrasted with

the March 2009 search, which G.C. has conceded was justified at its inception. Immediately prior to the

March 2009 search, G.C. admitted to making a call on his cell phone in the school parking lot after having

walked out of a meeting with the school prevention coordinator. R. 69-8 (Smith Aff. at ¶ 8) (Page ID

#468). Upon his return, G.C. told Bell that he was having suicidal thoughts, and the security officer

reported to Bell that there were tobacco products in plain view in G.C.’s car. Id. There was thus reason

to believe—based on that day’s sequence of events—that G.C. was contemplating injuring himself or

breaking additional school rules. The defendants, however, can point to no such indications in the hours,

weeks, or months leading up to the September 2009 search.

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 16

V. REHABILITATION ACT CLAIM

Finally, G.C. argues that the district court erred in granting summary judgment

to the defendants on G.C.’s Rehabilitation Act claim. G.C. asserts that “[u]nder the

procedural protections of § 504, the School District is [obligated] under ‘Child Find’ to

identify the student in their school system who may be eligible for special services.”

Appellant Br. at 29. However, merely asserting that the defendants failed to meet certain

obligations under § 504 of the Rehabilitation Act and various regulations is insufficient

to succeed on a Rehabilitation Act claim, particularly at the summary-judgment stage.

Rather, G.C. must proffer evidence that satisfies each of these four elements:

(1) The plaintiff is a “handicapped person” under the Act; (2) The

plaintiff is “otherwise qualified” for participation in the program; (3) The

plaintiff is being excluded from participation in, or being denied the

benefits of, or being subjected to discrimination under the program solely

by reason of his handicap; and (4) The relevant program or activity is

receiving Federal financial assistance.

Campbell v. Bd. of Educ. of Centerline Sch. Dist., 58 F. App’x 162, 165 (6th Cir. 2003)

(citing Doherty v. S. College of Optometry, 862 F.2d 570, 573 (6th Cir. 1988)).

The district court granted the defendants’ motion for summary judgment for

failure to produce evidence of the third element, that the actions of the defendants were

discriminatory. R. 85 (Order at 24–25) (Page ID #766–67). As we have previously

explained, “the Rehabilitation Act further requires that the [plaintiff] must ultimately

prove that the defendant’s failure to provide [the plaintiff] with a free appropriate public

education was discriminatory. Surmounting that evidentiary hurdle requires that either

bad faith or gross misjudgment must be shown before a § 504 violation can be made out,

at least in the context of education of handicapped children.” Campbell, 58 F. App’x at

167 (internal quotation marks omitted). On appeal, G.C. addresses this portion of the

district court’s order in a cursory manner: “The Appellee[s] had full knowledge of the

child’s issues but failed to implement their obligation under ‘child find[.’] The facts of

[G.C.’s] tenure at [Owensboro Public School District] is a litany of bad faith and gross

misjudgment of the [Appellees].” Appellant Br. at 35. G.C. cited no evidence in the

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 17

record to support this assertion. Nor did he reference any controlling case law; he relied

solely on an out-of-circuit case reversing a district court’s dismissal for lack of subject-

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Id. (citing M.P. v.

Independent Sch. Dist. No. 721, 439 F.3d 865 (8th Cir. 2006)). The district court thus

correctly granted the defendants’ motion on G.C.’s Rehabilitation Act claim.

Because G.C. has not produced sufficient evidence in support of his

Rehabilitation Act claim, we need not consider whether the district court erred in

denying G.C.’s motion for a Daubert hearing. G.C. has not produced sufficient evidence

in support of his § 504 claim, and therefore, consideration of the defendants’ expert is

unnecessary. We AFFIRM the district court’s grant of summary judgment on G.C.’s

§ 504 claim.

VI. CONCLUSION

For the reasons stated, we REVERSE the district court’s grant of summary

judgment on G.C.’s due-process claim and on G.C.’s Fourth Amendment claim based

on the September 2009 search. We AFFIRM the district court’s grant of summary

judgment on G.C.’s Rehabilitation Act claim. We REMAND for further proceedings

consistent with this opinion.

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 18

____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

____________________________________________________

ALAN E. NORRIS, Circuit Judge, concurring in part and dissenting in part.

Truly, no good deed goes unpunished. The Majority recognizes that Superintendent

Larry Vick had the authority to bar the re-enrollment of G.C. at Owensboro High School

before the start of the 2009-2010 academic year. Principal Anita Burnette recommended

such a course of action based upon G.C.’s record of disciplinary infractions. Plaintiff’s

own brief characterizes his behavior as “abhorrent.” Rather than take this advice,

Superintendent Vick put the student’s wishes above those of Principal Burnette by

giving him a final chance. Vick then met with G.C.’s parents in June of 2009 and

outlined his concerns and expectations. Among other things, he told them that G.C.

could enroll as a non-resident student for the next year “on the condition and

understanding that, if he had any further disciplinary infraction, this privilege would be

immediately revoked and he would be required to return to his home school district.”

R. 69-17 (Vick Aff. at § 11) (Page ID # 500). In short, despite any misgivings he took

a chance on G.C.

And how was this largesse rewarded? G.C. violated school policy shortly after

the commencement of the new school year by using his cell phone in the classroom. For

that infraction, his out-of-district student status was revoked. G.C.’s parents were

informed and told of their right to appeal the decision. School officials met with G.C.’s

parents the following month to consider their request that their son be re-admitted. He

was not. A layperson considering the actions of school officials might well conclude

that G.C. had been fairly treated, that he had been given repeated opportunities to alter

his behavior but had not taken advantage of them.

As lawyers, of course, we have come to recognize that what appears to be

reasonable is not always legally sufficient. The Majority concludes that the district court

erred when it held that G.C. did not have a property interest in an education within the

Owensboro Public School District sufficient to trigger a right to due process. For the

No. 11-6476 G.C. v. Owensboro Pub. Sch. et al. Page 19

reasons outlined by the Majority, I agree G.C. enjoyed the due process protections set

forth in Goss v. Lopez, 419 U.S. 565 (1975), although it is not clear from that record

whether the June 2009 meeting and subsequent consultations between the parties

satisfied those due process protections. That question, however, is best left to the district

court on remand.

While I concur in the Majority’s resolution of the due process question, I must

dissent from its decision with respect to the September 2009 search of G.C.’s cell phone.

There is a reason that the Supreme Court in New Jersey v. T.L.O., 469 U.S. 325, 341-42

(1985), concluded that the legality of a search in the school setting hinges on

reasonableness in light of all the circumstances: school officials are acting in loco

parentis and, as such, they have a keen interest in student welfare and safety. For that

reason, they must be allowed more leeway under the Fourth Amendment than is

appropriate outside the school setting.

What happened here? G.C. violated school policy by using his cell phone during

class. Under the terms of that policy, his phone was seized, an action that he does not

contest. The question then becomes, was a limited search of the phone’s text messages

permissible? The school official who conducted the search was aware of G.C.’s prior

suicidal thoughts and drug use. She also knew that he had a history of disciplinary

problems, which included fighting. Her duty as an administrator was to ensure the safety

of the students, including G.C. Her subsequent search, which was limited to reading

four text messages created that day, strikes me as reasonable under T.L.O. I respectfully

dissent.