Lead Opinion
We are concerned on this appeal with the propriety of District Court action denying relief to two high school students who were given lengthy suspensions from school for allegedly violating school regulations with respect to the possession and use of intoxicating liquors at a school function on school premises.
Peggy Strickland, Virginia Crain and Jo Wall were tenth grade students at Mena High School, Mena, Arkansas, when this controversy arose. On February 18, 1972, the three girls were accompanied to the principal’s office by Mrs. Curtis Powell, a home economics teacher, where they volunteered to Mr. Waller that they had “spiked” the punch at a recent extracurricular home economics class function. They related to him, through Mrs. Powell that on the day of the spiking incident, someone (it is not clear who) suggested that the punch be spiked. The three girls obtained permission to leave the campus and traveled to a tavern in Oklahoma where Jo Wall purchased two 12-ounce bottles of a flavored malt beverage, “Right Time.” The three students then purchased six 10-ounce containers of a soft drink and combined the total eighty-four ounces of liquid in a milk carton, and returned with the mixture to school. To the liquid was then added enough water to total one and one-half gallons of punch, which was served at the gathering.
“3. Suspension
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“b. Valid cause for suspension from school on first offense:
“Pupils found to be guilty of any of the following shall be suspended from school on the first offense for the balance of the semester and such suspension will be noted on the permanent record of the student along with reason for suspension.
* * * * -x- *
“(4) The use of intoxicating beverages or possession of same or at a school sponsored activity.”
Pursuant to this regulation, Principal Waller suspended the three girls from classes and extracurricular activity for one week, and told them that ultimate disposition would be in the hands of the School Board. He added, however, that he and Mrs. Powell would intercede for them and ask for leniency.
Without adequate notice to the students and with no notice to their parents, a special meeting of the School Board was held the night of February 18 to consider the matter. The only people in attendance were the members of the Board, Mr. Inlow, Mr. Waller and Mrs. Powell. Mrs. Powell relayed the girls’ statements to the Board and she, along with Mr. Waller, recommended leniency. Shortly after these recommendations were made, a telephone call was received by Mr. Inlow. The caller was Mrs. Powell’s husband, also a teacher at the school. He informed Mr. Inlow that he (Powell) had been told that Jo Wall had been involved in an altercation with another student after a basketball game that evening. Mr. Inlow then informed the Board of the substance of his conversation with Powell, leaving out the name of the student involved. With this, Mrs. Powell and Principal Waller withdrew their recommendations and “washed their hands” of the matter. The Board voted to suspend all three students for the balance of the semester.
The School Board considered the matter for a second time on March 2, 1972. Present at this meeting were the members of the Board, Mr. Inlow, the appellants, their parents and counsel for the appellants and appellees. Neither Mr. Waller nor Mrs. Powell, the only two who had testified at the February 18 meeting, was present, although they were in their respective offices in the building during this time. The Board presented a written statement, which it described as a statement of facts found by it.
Thereafter, two of the students— Strickland and Crain — commenced an action in United States District Court under 42 U.S.C. § 1983. They alleged that they had been deprived of the right to attend school without benefit of due process. They asked that they be reinstated, that the defendants be enjoined from imposing sanctions, and that the
The students subsequently amended their complaint, adding a prayer for damages. The matter was then tried to a jury. The defendants moved for a directed verdict, apparently at the close of the plaintiffs’ case. This motion was denied. After the jury failed to reach a verdict, the court declared a mistrial. The court subsequently granted the defendants’ motions for judgment in accordance with their motions for a directed verdict and denied the plaintiffs’ motion for a new trial.
The students contend on appeal that the trial court erred: in denying them equitable relief; in failing to declare the rule with respect to the possession or use of intoxicating beverages invalid; in erroneously instructing the jury with respect to good faith as a defense; and in refusing to grant the students a new trial.
The law with respect to the rights of students is still developing. We think it is clear, however, that the following general principles are reasonably well established. The responsibility for public education is primarily the concern of the states. The exercise of this responsibility, however, must be consistent with federal constitutional requirements.
We believe that the regulation which prohibits the possession or consumption of intoxicants by Mena High School students at school or at a school function is reasonable.
We think it clear that the students were denied procedural due process at the February 18 meeting of the Board. Their parents were not notified of the meeting, and were not given an opportunity to appear at it. We recognize that the March 2 meeting may have cured the procedural defects because it was held promptly after the suspension, and because the students and their parents were given notice of the time and place of the meeting and were given an opportunity to present evidence.
To justify the suspension, it was necessary for the Board to establish that the students possessed or used an “intoxicating” beverage at a school-sponsored activity. No evidence was presented at either meeting to establish the alcoholic content of the liquid brought to the campus. Moreover, the Board made no finding that the liquid was intoxicating. The only evidence as to' the nature of the drink was that supplied by the girls, and it is clear that they did not know whether the beverage was intoxicating or not. The District Court recognized this void in its March 7 findings of fact. It stated:
“I have had grave questions throughout this trial as to whether this concoction from which these students got such a terrific charge was ever an intoxicating beverage. * * * [T]he term ‘intoxicating beverage’ as used in the manual is not defined but the term ‘intoxicating liquid’ is certainly well defined under the Arkansas laws and it provides that it must be a content in excess of 3.2 or 5 percent by weight and I am afraid the School Board is or has made a mistake here but I do not see any constitutional thing within the jurisdiction of this Court that requires any intervention by the Court at this time on the temporary application. If it ever reaches the matter of proof on the intoxicating angle I don’t think you will ever be able to prove that thing there— in spite of the fact that these little girls giggled around and got themselves kicked out of school on such a silly thing — I don’t think you will ever be able to prove that that stuff is intoxicating.”
For reasons not apparent from the record before us, the court failed to discuss this absence of evidence in its final opinion and made no finding that the School Board had determined that the beverage brought to the school by the girls was intoxicating.. Under these circumstances, we have no alternative but to find that the students were denied substantive due process and that they were entitled to have their records cleared and to be reinstated. As reinstatement is no longer possible, the students are entitled to have their records cleared and to be relieved of any punishments that may be of a continuing nature.
We turn then to the question of whether the trial court properly directed a verdict against the students as to their claim for damages as against all defendants.
The directed verdict was appropriate as to the School District because under the doctrine of Monroe v. Pape,
It was appropriate as to Superintendent Inlow and Principal Waller because there is no evidence in the record to support a claim against them. Neither had a vote in the suspension proceedings and neither recommended that the girls be suspended.
It was inappropriate as to the individual School Board members because the record shows clearly that the plaintiffs established that they had been suspended without regard to substantive due process and the defense of good faith was not established as a matter of law. Moreover, the court took an erroneous view of the law. It instructed the jury that the plaintiffs had to prove that the defendants acted with malice toward the plaintiffs. No such specific intent need be proved to recover compensatory damages. It need only be established that the defendants did not, in the light of all the circumstances, act in good faith. The test is an objective, rather than a subjective, one.
We remand to the District Court for action consistent with this opinion. An attorney’s fee in the sum of $500.00 is awarded to counsel for the appellants. Costs will be taxed against all appellees except S. L. Inlow, Duddy Waller, and Mena Special School District.
Notes
. The practical effect of the suspension was to cause the girls to fail their entire sophomore year. It will be possible for them to graduate with their class, but they must complete three academic years in two by taking an increased course load during their final two years in school.
. "FACTS FOUND BY SCHOOL BOARD
“1. That Virginia Crain, Peggy Strickland and Jo Wall are students of Mena High School and subject to the governing rules and policies of Mena High School.
“2. That on or about Feburary 7, 1972 these three girls were charged with the responsibility of providing refreshments for a school function, being a gathering of students of the Home Economic class and some of their parents, on school premises, being the auditorium building of Mena High School, and being under the direction of Mrs. Curtis Powell.
“3. That the three girls in question traveled to Oklahoma, purchased a number of bottles of malt liquor, a beer type beverage, and later went onto school premises with the alcoholic beverage and put two or more of the bottles of the drink into the punch or liquid refreshment which was to be served to members of the class and parents.”
. The opinion of the trial court is published at
. Jones v. Snead,
. Tate v. Board of Ed. of Jonesboro, Ark., Spec. Sell. Dist.,
. Jones v. Snead, supra; Tate v. Board of Ed. of Jonesboro, Ark., Spec. Sell. Dist., supra; Farrell v. Joel,
. Gouge v. Joint School District No. 1,
. Gouge v. Joint School District No. 1, supra. See, 2 T. Emerson, D. Haber & N. Dorsen, Political and Civil Rights in the United States (3rd ed. 1967).
. Although the regulation seems to call for mandatory suspension for the balance of the semester and the “Administrative Policies” for the Mena Public Schools do not provide
. See, Pervis v. LaMarque Independent School District,
“ * * * How, then, could they have been made whole? They would have lost some 3 months of education. This result cannot obtain. Procedural due process must, on the facts present in this case, be given prior to imposition of serious suspensions.”
. We note here that an exception to the Monroe rule has been developed in that line of cases following Harkless v. Sweeney Independent School District,
. McLaughlin v. Tilendis,
Rehearing
ON PETITION FOR REHEARING
joined by STEPHENSON and WEBSTER, Circuit Judges, dissenting from denial of the petition for rehearing en banc.
The appellees in this case have filed a petition pursuant to Fed.R.App.P. 40 for a rehearing with suggestion for a rehearing en banc. The Arkansas School Boards Association has joined as amicus curiae in support of the appellees’ petition. After an examination of the panel’s opinion in this case and of the above-mentioned petitions I voted to grant a rehearing en banc. Although a majority of the active judges of this court voted to deny appellees’ petition, I feel compelled to respectfully dissent from the denial of the petition for rehearing en banc.
My principal disagreement with the panel's opinion involves its use of substantive due process as the basis for reversal. I fully recognize that a public high school student has a very strong interest in his or her education. I also recognize that the student’s interest in public education enjoys very important procedural and substantive federal constitutional protection from certain types of unwarranted state action. I cannot
This is not a case where the school board has invaded federally protected areas of speech, association, religion, or equality of race or sex. Nor is this a ease where the procedure accorded the students was inadequate, unreasonable, or unfair. Instead, as the panel itself concludes, this is a case where the school board had established a reasonable rule, the students had notice of the rule, the students by their own admission had violated the rule, and, after full procedural protection was afforded, the rule was enforced. Under such circumstances I fail to perceive any federal constitutional question in appellants’ attack.
I am, of course, aware that “substantive due process” has in the past been used without regard to any specific constitutional safeguard to attack a wide variety of state action. E. g., Lochner v. New York,