Lead Opinion
MOORE, J., delivered the opinion of the court, in which DONALD, J., joined, and NORRIS, J., joined in part. NORRIS, J. (pp. 635-36), delivered a separate opinion concurring in part and dissenting in part.
OPINION
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-Ap-pellees 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.
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]oliey 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, “[Nonresident students are defined as those whose parent or guardian resides outside the Dis
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 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*628 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 [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 # 501) 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 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)
II. STANDARD OF REVIEW
“We review de novo a district court’s grant of summary judgment.” Dye v. Office of the Racing Comm’n,
III. DUE-PROCESS CLAIM
In Goss v. Lopez,
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).
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
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 desig-nee.”); 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 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,
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-distriet 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.
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,
Moreover, the concept of de facto expulsions is not new to this court. See, e.g., Wayne v. Shadowen,
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 “[wjhile not binding on courts, Opinions of the Attorney General are considered highly persuasive and
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.
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.,
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,
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,
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
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,
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.
V. REHABILITATION ACT CLAIM
Finally, G.C. argues that the district court erred in granting summary judgment to the defendants on G.C.’s Re
(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.,
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,
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.
Notes
. 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 V 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.
Concurrence Opinion
concurring in part and dissenting in part.
Truly, no good deed goes unpunished. The Majority recognizes that Superinten
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 readmitted. 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 reasons outlined by the Majority, I agree G.C. enjoyed the due process protections set forth in Goss v. Lopez,
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.,
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