In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2654

SANDRA REMER, parent of a minor son, M.R.,

Plaintiff-Appellant,

v.
BURLINGTON AREA SCHOOL DISTRICT,
LARRY ANDERSON, WILLIAM C. CAMPBELL, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 209--J.P. Stadtmueller, Chief Judge.

ARGUED JANUARY 24, 2002--DECIDED April 16, 2002



  Before EASTERBROOK, RIPPLE and DIANE P.
WOOD, Circuit Judges.

  RIPPLE, Circuit Judge. Sandra Remer
brought this action on behalf of her son,
M.R., claiming that his expulsion from
school had violated his procedural and
substantive due process rights. The
district court granted the defendants’
motion for summary judgment and dismissed
the action. For the reasons set forth in
the following opinion, we affirm the
judgment of the district court.

I

BACKGROUND

A.   Facts

  In November 1998, school and law
enforcement officials in Burlington,
Wisconsin, learned from a confidential
informant that five high school students
were planning to enter Burlington High
School with guns and shoot several
students and school officials. M.R., a
minor, was one of the students implicated
in the conspiracy. Ms. Remer is M.R.’s
mother. Three of the students were
detained and prosecuted, but M.R. and
another were not. The statements of the
conspirators indicated that M.R. had
withdrawn from the conspiracy.
  Although M.R. was not criminally
prosecuted, the school district suspended
him. The suspension was to last until
December 8, 1998. The superintendent of
the Burlington Area School District
notified M.R., by letter dated November
24, 1998, that the district would hold a
hearing on school district property on
December 1, 1998, to determine whether he
should be expelled for his participation
in the conspiracy. The school district
also obtained a temporary restraining
order (TRO) to keep M.R. from school
district property "for as long as [M.R.
was] suspended and for the length of any
future expulsion." R.8, Ex.I, at 2. A
hearing concerning the TRO was set for
November 30, but, when the court was not
able to hold the hearing on that date,
M.R. and the school district agreed that
the TRO "shall be extended and remain in
force" until a hearing could be held.
R.8, Ex.J. A court thereafter extended
the TRO in terms identical to those of
the original TRO, "for as long as [M.R.
was] suspended and for the length of any
future expulsion." R.8, Ex.K, at 2.

  On December 1, 1998, the day of the
expulsion hearing, the district’s counsel
faxed counsel for M.R. a message to
reassure counsel for M.R. that it would
be appropriate for M.R. to attend the
expulsion hearing notwithstanding the TRO
restricting M.R. from school district
property. The message stated that the TRO
would remain in force, but that "because
we want the hearing to be in an
appropriate and comfortable setting for
all parties, including your client, we
want to make it clear that we have
invited your client to the hearing
tonight and that it is appropriate for
him to attend." R.8, Ex.L. The message
also stated that it was the district’s
position that M.R.’s attendance would not
violate the TRO because, according to the
message, the TRO would expire the night
of the expulsion hearing. By its terms,
however, the TRO was to last for the
length of M.R.’s suspension, which was to
last until December 8--one week after the
expulsion hearing. M.R. did not attend
the hearing, which was held as scheduled
on December 1.

  At the school board hearing, Principal
Jose Martinez, who had been informed by
the police that he was an intended target
of the conspiracy, recommended that M.R.
be expelled and submitted the evidence in
his possession. This evidence included a
copy of the delinquency petition filed by
the District Attorney’s office against
one of M.R.’s co-conspirators and
Principal Martinez’s verbal summary of
information that the police had shared
with him after hearing from the
confidential informant and obtaining the
confessions of all five co-conspirators.
Principal Martinez informed the school
board that M.R. had withdrawn from the
plan, but as the minutes of the hearing
indicate "[i]t was also acknowledged that
[M.R.] after backing out of the plot did
not communicate with school or police
officials to inform them of the planned
events." R.8, Ex.N, at 2. Even though
Principal Martinez had information that
the District Attorney was not going to
prosecute M.R., he did not so inform the
school board. After deliberating, the
school board voted to expel M.R. from the
schools of the district from December 1,
1998, to April 26, 2003. The
practicaleffect of expelling M.R. until
2003 was to preclude permanently M.R.’s
education in the schools of the district.

B.   District Court Proceedings

  Ms. Remer sued the Burlington Area
School District and several members of
the Burlington School Board, claiming
that the defendants had violated M.R.’s
procedural and substantive due process
rights in expelling M.R. from the
district’s schools. The district court
granted the defendants’ motions for
summary judgment, holding that the defen
dants had afforded M.R. a reasonable
opportunity to be heard and that the
expulsion was not unreasonable. The
district court further held that, even if
a due process violation had occurred, the
individual defendants were entitled to
qualified immunity.

II

DISCUSSION

  We review de novo the district court’s
grant of summary judgment. See Thomas v.
Pearle Vision, Inc., 251 F.3d 1132, 1136
(7th Cir. 2001). Summary judgment is
appropriate "if the pleadings,
depositions, answers to interrogatories,
and admissions on file, together with
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law." Fed. R.
Civ. P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).

A.   Procedural Due Process Claims

  Children in Wisconsin have a right to
free public education until the age of
20. See Wis. Const. Art. 10 sec. 3.
Having provided for the right to
education, Wisconsin "may not withdraw
that right on grounds of misconduct,
absent fundamentally fair procedures to
determine whether the misconduct has
occurred." Goss v. Lopez, 419 U.S. 565,
574 (1975). To comport with due process,
expulsion procedures must provide the
student with a meaningful opportunity to
be heard. Linwood v. Bd. of Educ., 463
F.2d 763, 769-70 (7th Cir. 1972). The
proceedings need not, however, "take the
form of a judicial or quasi-judicial
trial." Id. at 770. As long as the
student is given notice of the charges
against him, notice of the time of the
hearing and a full opportunity to be
heard, the expulsion procedures do not
offend due process requirements. Betts v.
Bd. of Educ., 466 F.2d 629, 633 (7th Cir.
1972).

1.

  Ms. Remer does not contest that M.R. was
given notice of the charges and the time
of the hearing. Rather, she submits that
M.R. was not given a meaningful
opportunity to be heard because the
hearing was held on school district
property and the TRO prevented M.R. from
coming to the school. On the day of the
expulsion hearing, the school district’s
counsel faxed counsel for M.R. a message
encouraging M.R. to attend the hearing
and stating that it was the District’s
position that M.R.’s attendance would not
be in violation of the TRO because the
TRO was set to expire on the night of the
expulsion hearing. The TRO, however, was
to last at least "as long as [M.R. was]
suspended," R.8, Ex.I, at 2, and M.R.’s
suspension was to last until December 8--
one week after the expulsion hearing.
Despite the assurances of the district’s
counsel, then, the TRO was still in
effect on the night of the expulsion
hearing.
  The district’s counsel was very clear,
however, that the district invited M.R.
to attend and that it would be
appropriate for him to do so.

Although we have entered into the
Extended TRO which would prohibit your
client from approaching or entering the
Middle School, the District has expressly
invited your client to the Middle School
tonight for the express purpose of the
expulsion hearing. The Extended TRO will
remain in force . . . ; still, because we
want the hearing to be in an appropriate
and comfortable setting for all parties,
including your client, we want to make it
clear that we have invited your client to
the hearing tonight and that it is
appropriate for him to attend.

R.8, Ex.L. Notwithstanding the
invitation, neither M.R., his parents nor
his attorney attended the hearing.

  Notably, Ms. Remer did not claim in the
district court that it was the TRO that
kept M.R. away from the hearing./1
Rather, she admitted that "nothing
prevented M.R. or his parents or counsel
from attending." R.46, at 5, para. 21;
R.50, at 4 (admission)./2 Moreover, by
its terms, the TRO did not apply to
M.R.’s attorney and therefore did not
prevent his attending the hearing and
objecting to the holding of the hearing
on school property. Nor is there any
indication that M.R.’s attorney wrote to
the school board and made such an
objection or that the attorney made an
application to the court that had issued
the TRO to obtain permission for M.R. to
attend the hearing on school property.
Indeed, as far as the record indicates,
it was not until January 11, 1999, six
weeks after the hearing, that M.R.’s
newly acquired attorney sent the school
district superintendent a letter
requesting a new hearing for M.R. on the
ground that M.R. had not been able to
attend the December 1 hearing because of
the TRO. Counsel for the school board
responded to the January 11 letter,
stating that M.R.’s counsel had
"indicated before the expulsion hearing
that [M.R.] would not be attending, for
reasons completely unrelated to the
Extended Temporary Restraining Order."
R.49, Ex.15. The school board’s findings
of fact, which it issued following the
expulsion hearing, state that M.R. and
his parents "declined to attend the
expulsion hearing because [M.R.] withdrew
from school and . . . they felt that
expulsion was a foregone conclusion."
R.49, Ex.22, para. 2. Although M.R. has
not admitted formally the truth of the
school board’s assertions, he has not
offered any concrete evidence to negate
their veracity.

  Under these circumstances, we cannot say
that the district court erred in granting
summary judgment for the school district
on this issue.

2.

  Ms. Remer also submits that the
expulsion hearing did not comport with
the requirements of due process because
Principal Martinez did not present any
mitigating evidence. First, we point out
that Principal Martinez did inform the
Board that M.R. had withdrawn from the
conspiracy. Ms. Remer states in her brief
that "[i]t is not clear in this record
that Principal Martinez did in fact
indicate to the Board that MR withdrew
from the plot." Appellant’s Br. at 26.
This bare assertion does not create a
genuine issue of material fact because
Ms. Remer has offered no evidence to
support it. The minutes of the expulsion
hearing and Principal Martinez’ notes of
his statement to the Board indicate that
he told the Board of M.R.’s withdrawal
from the conspiracy, and the information
was also contained in the delinquency
petition that the Board had in its
possession.

  Second, the only other mitigating
factors that Ms. Remer identifies are
that M.R. had no prior history of
violence and that the District Attorney
had decided not to prosecute M.R./3 The
defendants do not contest that Principal
Martinez did not inform the school board
of these facts.

  Ms. Remer suggests that M.R.’s absence
from the hearing imposed on Principal
Martinez an obligation to present the
mitigating evidence on M.R.’s behalf. In
support of her argument, Ms. Remer relies
on Lamb v. Panhandle Community Unit
School District No. 2, 826 F.2d 526 (7th
Cir. 1987). Lamb, however, cannot support
such a novel proposition. In that case,
we simply held that, when a penalty that
is "tantamount to expulsion" is involved,
the school authority must afford the
student an opportunity to present
evidence and argument in mitigation.
Lamb, 826 F.2d at 528; Betts v. Bd. of
Educ., 466 F.2d 629, 633 (7th Cir. 1972).

3.

  Ms. Remer also suggests that Principal
Martinez, who presented evidence to the
school board, was biased because he had
been a target of the plot. This court
tacitly recognized in Lamb that "an
occasional case may demonstrate that a
school official’s involvement in an
incident created a bias ’such as to
preclude affording the student an
impartial hearing.’" Lamb, 826 F.2d at
530 (quoting Brewer v. Austin Indep. Sch.
Dist., 779 F.2d 260, 264 (5th Cir.
1985)). In Lamb, however, the allegedly
biased official not only presented the
evidence against the student to the
school board, but advised the board
during its closed-session deliberations.
See id. at 529. The court nevertheless
determined that the record lacked a
demonstration of actual bias and found no
due process violation.

  Dr. Martinez acted only as the
prosecutor, presenting the evidence
against M.R. to the school board and
recommending expulsion. Due process does
not require a school official acting in
that capacity to be unbiased; it requires
the disciplining authority to afford the
student the opportunity to be heard so
that the student might counteract that
necessarily biased perspective.

4.

  Ms. Remer also submits that the school
board itself was biased as evidenced by
its lack of debate over the length of the
expulsion and the critical view that the
board president took toward M.R.’s
decision not to warn the school of the
planned assault. Ms. Remer must show
actual bias on the part of the school
board, however. See Lamb, 826 F.2d at
530. No reasonable juror could find
actual bias based on the facts she
suggests.

5.

  Finally, Ms. Remer submits that the
school board’s denial of her request for
another hearing and for reconsideration
of the expulsion prevented her from
presenting mitigating arguments. The
school district already had afforded Ms.
Remer and M.R. the opportunity to be
heard. Due process did not require the
school district to reconsider its
decision.

B.   Substantive Due Process Claims

  Ms. Remer also submits that M.R.’s
expulsion denied him substantive due
process. We applied substantive due proc
ess analysis to a school’s disciplinary
decision in Dunn v. Fairfield Community
High School District No. 225, 158 F.3d
962 (7th Cir. 1998). In Dunn, we observed
that "[t]he touchstone of due process . .
. is ’protection of the individual
against arbitrary action of government.’"
Id. at 965 (quoting County of Sacramento
v. Lewis, 523 U.S. 833, 845 (1998)).
"’[O]nly the most egregious official
conduct’ is arbitrary in the
constitutional sense." Id. (quoting
Lewis, 523 U.S. at 846). An abuse of
power is arbitrary if it "shocks the
conscience," but the plaintiff must show
that the official conduct is
"unjustifiable by any governmental
interest." Id. (emphasis in original).

  Ms. Remer contends that M.R.’s expulsion
had no rational basis. She submits that
the school board did not have enough
evidence of M.R.’s culpable conduct to
support his expulsion, that M.R. was not
a continuing threat to students or school
officials and that mere participation in
a conspiracy does not warrant expulsion
when the plot is not actually carried
out.

  There was, however, ample evidence
before the school board establishing
M.R.’s participation in the conspiracy.
The school board heard from Principal
Martinez who summarized the information
provided to him by the police. The police
initially learned the information from a
confidential informant and later verified
it with the confessions of each of the
five conspirators. The school board heard
that M.R.’s role in the planned assault
on students and school officials included
the procurement of firearms, which M.R.
would steal from his father, and a get-
away car, which M.R. would take from his
grandmother’s garage. The school board
also heard that M.R. planned to shoot one
student. Moreover, the school board had
in its possession the delinquency
petition against one of the conspirators;
the petition included information from
M.R.’s own statement to the police
detailing his participation in the
conspiracy. M.R. had the opportunity to
rebut this evidence at the hearing, but
he did not do so.

  Based on the evidence of M.R.’s
participation in the conspiracy, the
school district’s interest in providing
for a safe and stable learning
environment free of distraction and fear
certainly justified the permanent
expulsion of M.R. from its schools. The
school board was not required to
speculate that M.R. did not pose a
continuing threat to students or school
officials. Nor was it required to give
controlling weight to the fact that the
plot was never carried out. M.R.’s
expulsion, therefore, did not violate
substantive due process.

Conclusion

  Because M.R.’s expulsion violated
neither procedural nor substantive due
process, the defendants were entitled to
judgment as a matter of law. We therefore
affirm the judgment of the district
court.

AFFIRMED

FOOTNOTES

/1 Ms. Remer did state in her proposed findings of
fact that Principal Martinez knew "that there was
a civil injunction prohibiting M.R. from coming
to the School District," R.50, at 17, para. 100,
a fact that the defendants did not contest. This
knowledge on the part of Principal Martinez does
not negate the school board’s December 1 invita-
tion encouraging M.R. to attend the hearing,
however, nor does it establish that the TRO
prevented M.R. or his parents from attending it.

/2 Although a January 11 letter to the school dis-
trict from M.R.’s counsel claims that the TRO
prevented M.R. from attending the expulsion
hearing, Ms. Remer did not make that claim on sum-
mary judgment. Rather, she admitted that the TRO
did not prevent M.R. or herself from attending
the hearing.
/3 We note in passing that Ms. Remer has not ex-
plained how the district attorney’s decision not
to prosecute M.R. was a mitigating or exculpatory
factor rather than an exercise of prosecutorial
discretion.
