Swindle v. Livingston Parish School Bd.
2011 WL 3962828
5th Cir.2011Background
- Morgan Swindle, an eighth grader, was expelled for marijuana use following a school dance; a hearing and a year-long expulsion notice occurred.
- Before expulsion, plaintiffs requested alternative education if expelled; the request was denied without notice and no second hearing addressed denial.
- Morgan sought readmission as a ninth grader; the school refused, and she remained in the eighth grade.
- The Swindles sued under 42 U.S.C. § 1983 seeking monetary damages for violations of due process and education rights.
- The district court granted summary judgment on qualified immunity; a panel reversed on a procedural due process theory the author finds not properly pleaded.
- The author dissents from the denial of rehearing en banc, arguing the panel manufactured a procedural due process claim and misapplied qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was procedural due process claim adequately pleaded? | Swindle argued denial of due process regarding alternative education | Panel found a property interest in alternative education protected by due process | Panel mischaracterized and未 raised; not adequately pleaded |
| Was the issue properly raised on appeal and reviewable? | Issue was preserved and argued on appeal | Issue not properly raised; waiver principles apply | Issue not properly raised; waiver applies |
| Did the panel correctly deny qualified immunity for the superintendent? | No but the panel reversed on procedural due process grounds | Second hearing was not clearly required; objective reasonableness supports immunity | Qualified immunity should be granted; panel erred in denying it |
Key Cases Cited
- Goss v. Lopez, 419 U.S. 565 (1975) (constitutional right to due process in education)
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (procedural due process and adherence to established procedures)
- Vitarelli v. Seaton, 359 U.S. 535 (1959) (due process requires following established governmental procedures)
- Yellin v. United States, 374 U.S. 109 (1963) (due process and procedural safeguards)
- Browning v. City of Odessa, 990 F.2d 842 (5th Cir. 1993) (standard for evaluating procedural due process claims linked to proper remedies)
- Rathjen v. Litchfield, 878 F.2d 836 (5th Cir. 1989) (limits on recognizing procedural due process claims without proper pleading)
- Myrick v. City of Dallas, 810 F.2d 1382 (5th Cir. 1987) (no procedural due process claim may be made where remedies are not pursued)
- Celanese Corp. v. Martin K. Eby Constr. Co., 620 F.3d 529 (5th Cir. 2010) (waiver and briefing requirements for appellate review)
- French v. Allstate Indemn. Co., 637 F.3d 571 (5th Cir. 2011) (pleading standards and adequacy of briefing on appeal)