
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1421                             CHRISTOPHER DONOVAN, ET AL.,                               Plaintiffs, Appellants,                                          v.                             JOHN M. RITCHIE, PRINCIPAL,                           WINCHESTER HIGH SCHOOL, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                                 ____________________               Paul L. Kenny for appellant.               _____________               Mary Joann Reedy for appellees.               ________________                                 ____________________                                   October 24, 1995                                 ____________________               COFFIN, Senior Circuit  Judge.  This  appeal requires us  to                       _____________________          decide whether the procedural due process requirements of Goss v.                                                                    ____          Lopez, 419 U.S. 565 (1975), applied to and, if so, were correctly          _____          applied to a high school student before his suspension.                 Appellant,  a senior  at  Winchester High  School, brought          suit  under both  federal and  state statutes  and constitutional          provisions against  the school  principal, the superintendent  of          schools,  and the  school committee,  seeking injunctive  relief,          compensatory and punitive damages,  and attorney's fees and costs          for his ten-day suspension from school and exclusion from various          extracurricular activities.                 At  the conclusion of a  five-day bench trial,  in which the          evidence  and argument  focused solely  on whether  appellant had          been afforded procedural due  process, the district court granted          judgment  as a matter of law for the school committee members and          found that the process  given appellant was adequate.   Appellant          appeals from these dispositions  but has not furnished us  with a          transcript of the trial proceedings.  We affirm.               The  case revolves  about a  nine-page document  bearing, in          large capital  letters, the scatological title,  "The Shit List."          Apart  from a cover page and a concluding page containing general          remarks of a boorish  nature, the document zeroed in on  some 140          named students,1 each name being followed by one or more lines of                                        ____________________               1  The district court referred to the list as containing          "the first name and the first initial of the last name" of          students.  The list appearing in the record as an exhibit          contains the initial of the given name and the full surname of          each student.                                         -2-          crude descriptions  of character and/or behavior.   The freshmen,          fewer  than a  dozen, were  treated to  insulting comments  about          their  appearance or  social  conduct.   But  the sophomores  and          juniors,  more than  thirty in  each group,  and more  than sixty          seniors  were  characterized by  epithets  that  were not  merely          insulting as to appearance,  but suggestive, often explicitly so,          of sexual capacity, proclivity, and promiscuity.               The sequence of events  leading to appellant's suspension is          the following.   On September  18, 1994, a  Sunday, some  fifteen          students  were gathered in the home of  one of them when the list          was  created by someone still unknown.  On Thursday appellant and          two  other boys made copies of  the list and put  them in a trash          barrel.  They were delivered to the school soon after.   After it          was  discovered  by  a  faculty member  the  next  day, Principal          Ritchie announced to  the school  that the list  was harmful  and          degrading, and urged  students to provide  information as to  the          perpetrators.   On the following Monday,  September 26, appellant          and  two  others   came  to  Ritchie's  office   and  denied  any          involvement.               The  next  day  they  came  back  and  said  that  they  had          photocopied the  list but denied  knowing the contents  and that,          since the photocopying  was outside of school premises, they were          not  subject to school  discipline.  The  principal disagreed and          said  that  they  would  probably face  suspension.    Meanwhile,          Principal  Ritchie met with other students and compiled a list of          fifteen students who were  said to be present at  the creation of                                         -3-          the list.   On Thursday, September  29, a letter was  sent to the          fifteen, announcing a  meeting the  next day for  them and  their          parents.                 At the September 30 meeting, Principal Ritchie said that the          list was a violation of  the school's rules, as set forth  in the          school  handbook, against  harassment and  obscenity.   After the          meeting,  Ritchie met with appellant  and his mother  and said he          was indefinitely suspended.  He did not specify the length of the          suspension, but said that  information would soon be forthcoming.          In a letter requested by the principal and received the following          Monday,  October 3,  appellant  wrote apologizing  for this  "bad          mistake" and saying:                    My involvement in the list is such; I had the list               copied  with 2 other boys and we then proceeded to take               the list put it in a trash bag and put it in the barrel               at Gin [Ginn Field] where it was to be picked up.               Two days later, Ritchie met with the school's "Crisis Team,"          consisting of  twelve staff  members, and then  wrote appellant's          mother, specifying  "the consequences for your son, Christopher's          participation  in  the  chain  of   events  leading  up  to   the          distribution of the 'Shit List' at Winchester High School."  They          were  suspension  for ten  days,  and exclusion  from  any school          social events and interscholastic athletics.                 Principal  Ritchie identified  the  following parts  of  the          Student Handbook  as being violated: (1) the  cover, which called          for  an  end to  name calling,  harassment,  "put downs;"  (2) an          opening  statement proscribing  "harassment of  any kind;"  (3) a          section proscribing violent behavior,  vandalism, or violation of                                         -4-          students' civil  rights on  school premises or  at school-related          events,  carrying  the  sanction   of  indefinite  suspension  or          expulsion; and (4) a section barring abusive or  obscene language          or materials.   Possible  reinstatement to athletic  programs (in          appellant's  case,  lacrosse)  and  removal of  the  letter  from          appellant's file was to depend on steps "to repair the damage" to          individuals and the school.               In a subsequent, undated  letter to the principal, appellant          complained of his  "excessive punishment" and added  to his prior          statement that he thought "it was the Underground Newspaper."               Appeals  to  the  superintendent  and later  to  the  school          committee, in  which presentations were made  by both appellant's          attorney and the principal, were unsuccessful.                                      Discussion                                      __________               We  must  first  face a  threshold  question:   whether  the          sanction imposed  on  appellant was  an  expulsion or  a  ten-day          suspension.  Appellant's brief assumes throughout that it was the          former,  citing the  fact that  Principal Ritchie  initially told          appellant  and his  mother  than he  was indefinitely  suspended.          Appellant then cites  Jones v.  Fitchburg, 211 Mass.  66, 68,  97                                _____     _________          N.E.  612, 613  (1912), for  the proposition  that  a suspension,          "intended to operate[] for an indefinite period, . . . in  effect          amount[s]  to  a permanent  exclusion. .  .  ."   Accordingly, he          invokes the  authorities that  specify a considerable  panoply of          rights,  including the  assistance of  counsel  and the  right to                                         -5-          examine  witnesses at  a hearing.   See,  e.g., Dixon  v. Alabama                                              ___   ___   _____     _______          State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961).          __________________               Unfortunately  for  appellant, the  mere  repetition  of the          expulsion label  is of no  avail.  As  the district court  found,          Principal Ritchie, after informing  appellant and his mother that          he was  indefinitely suspended, told them that they would receive          the information  as to the length  of the suspension  in the mail          "shortly thereafter."  Five days later, after conferring with the          "Crisis  Team," he sent his  letter of October  5, containing the          details of  the ten-day suspension.  Appellant  cannot attack the          basis  of the district court's finding that he was suspended, for          he  has not furnished  us with a  transcript. Real v.  Hogan, 828                                                        ____     _____          F.2d 58, 60  (1st Cir.  1987) ("If [the  existing record]  proves          inconclusive, it is the appellant  who must bear the brunt of  an          insufficient record on appeal.")  In any event, however, we would          be unlikely to find "clear error" in the finding.   Cf. Roland M.                                                              __  _________          v. Concord School Committee, 910 F.2d 983, 990 (1st Cir. 1990).             ________________________               We  are,  therefore,  dealing  with the  kind  of  temporary          suspension at issue  in Goss v.  Lopez.  In  that case the  Court                                  ____     _____          succinctly  summarized the three  procedural prerequisites: "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."  419 U.S. at 581.   The Court added, "In  the          great majority of cases the disciplinarian may informally discuss          the  alleged misconduct  with the  student  minutes after  it has                                         -6-          occurred."  Id. at 582.  In order for the student "to explain his                      ___          version of the  facts at  this discussion, [he  should] first  be          told  what he  is accused  of  doing and  what the  basis of  the          accusation  is."   Id.   "Requiring  that  there be  at  least an                             ___          informal  give-and-take between student  and disciplinarian," the          Court concluded, would at least give the student "the opportunity          to  characterize his  conduct and  put it  in  what he  deems the          proper context." Id. at 584.                           ___               It  is clear,  first  of all,  that  appellant had  adequate          notice.    The  principal  warned  him  several  days  before the          suspension  took  effect that  the  conduct  he had  acknowledged          likely would result in his suspension.  The principal's letter of          October 5,  elaborating  on  and specifying  the  bases  for  the          suspension,  referred to  the High  School Handbook,  which every          student  was obliged to read  and understand.   Its cover, as the          letter   noted,  briefly  but  clearly  identified  name-calling,          harassment,  and  "put downs"  as actions  to  be resisted.   The          principal also referred to the "Opening Remarks" of the Handbook,          prohibiting "harassment of any  kind."  This introductory section          defined "harassment" as "conduct,  behavior, or comments that are          personally offensive, degrading, or  threatening to others,"  and          gave such examples as "sexually suggestive remarks, . . . and the          display  or circulation  of  written materials  .  . .  that  are          degrading to any individual. . . ."               Thirdly,  the  principal  cited  to  a   regulation  barring          fighting,  violent behavior,  or  "violation of  other  students'                                         -7-          civil rights"  on school premises, the violation  of which called          for an  indefinite suspension and possibly  expulsion.  Appellant          challenges the relevance of  this regulation to the facts  of his          case.    He also  argues  that more  formal  procedures regarding          notice, counsel, and presentation of witnesses are required under          this regulation.   This would seem  to be true but  it is obvious          from  the sanction  imposed,  a temporary  suspension, that  this          regulation was not a ground for decision.               The principal's fourth basis  for punishment was regulations          barring  the use of either obscene materials or language that was          "abusive," "obscene," "profane," or "vulgar."                Apart from the attack noted above to the third ground listed          by  the principal, appellant makes only two arguments.  The first          is that a passage  in "Opening Remarks" urges sensitivity  to the          feelings of others and prompt communication between a student who          feels aggrieved  and an  offender so that  objectionable behavior          may be brought to an end quickly.  To read this as preempting any          more severe treatment  of what has been  "strictly prohibited" is          not  only  to treat  the  Opening Remarks  section  as internally          inconsistent  but also  to  ignore other  parts  of the  Handbook          detailing a  twelve point "Range of  Consequences" for violations          of the student  disciplinary code that extend from verbal warning          to  expulsion.   Appellant's second thrust is against the charges          of  abusive or obscene language.   His brief  makes the assertion          that "Notwithstanding  that Ritchie found no  evidence to support          the  foregoing,  Ritchie  cites  this  regulation  without   ever                                         -8-          explaining to Donovan  how it was violated."   This, in the light          of "The Shit List" itself,  defies rational justification even in          the context of strenuous advocacy.                By  the same token, there can be no rational question raised          as  to  the basis  for the  suspension.   Indeed,  appellant knew          precisely what  the basis was -- the preparation and distribution          of the list; he  acknowledged his part in making  photocopies and          merely asserts  that he did not know the contents.  This leads us          to the third requirement of Goss v. Lopez, an opportunity for the                                      ____    _____          student to have presented his version of the facts.               We conclude  from the  record that  appellant had,  and took          advantage of, multiple opportunities to present his view  of what          occurred.  On September  26, he and two others met with Principal          Ritchie  and denied any involvement.   On September  27, they had          another meeting  and admitted  photocopying, but no  knowledge of          contents.   They also advanced  their defense that  their act did          not  take place on school  property.  On  September 30, appellant          and his  mother met  separately with  Principal Ritchie,  after a          larger meeting, and  had the opportunity to add to  what had been          said.               We  add  these  observations.    At  no  time has  appellant          indicated  the presence of any evidence other than his own say-so          that  could shed light on  his defense of  ignorance of contents.          Moreover,  as  we  reflect  on the  giant-sized  capital  letters          spelling  out  the  title  of the  list  on  the  cover,  and the          following  listing names  with,  generally, a  salacious one-line                                         -9-          commentary,  we  can  be  skeptical  of  the  likelihood  of  one          remaining oblivious to content  after feeding into and retrieving          from  the  copying  machine  multiple copies  of  this  nine-page          document.   Given the nature  of the defense,  the nature of  the          evidence, the lack of any trial transcript, and the opportunities          given appellant  to explain and support his position, we conclude          that  the  disciplinarian  was  entitled to  make  a  credibility          judgment.               We take note of an argument briefly advanced by appellant --          that, because  of the bar to interscholastic  athletics and other          school  activities,  in addition  to  a  ten-day suspension,  the          punishment falls outside of  Goss and required a higher  level of                                       ____          procedural  formalities.  We are  not unmindful of  the impact of          sanctions other than suspension  and expulsion.  As the  Court in          Goss  recognized,  there  may be  "unusual  situations,  although          ____          involving only  a short  suspension, [where] something  more than          the  rudimentary procedures will  be required." 419  U.S. at 584.          But  the mere  fact that  other sanctions  are  added to  a short          suspension does not trigger  a requirement for a more  formal set          of procedures.  In Goss itself one of the plaintiffs had not only                             ____          been  suspended, but had been transferred  to another school. Id.                                                                        ___          at 569  n.4.  What must  remain the focus is  whether the student          was  given  the  opportunity  to  present  his  version  of  what          occurred.  In this case appellant has never suggested any respect          in which he was denied this opportunity.                                         -10-               We add one final  word.  We  have said that appellant  bears          any  risk stemming  from an  inadequate record.   Our  reading of          appellees'  Proposed Findings  of Facts  below suggests  that the          absence of a record may have deprived us of evidence that is more          adverse than helpful to appellant.   In any event, on this record          we conclude that he received all of the process that was due.               We make  short shrift of two  other arguments.   One is that          Mass. Gen.  L. ch. 71,   84 prohibits the suspension of a student          for "marriage, pregnancy, parenthood or  for conduct which is not          connected with any school-sponsored activities. . . ."  While the          context suggests that  the statute is dealing  with matters other          than actions taken with  and aimed toward other students,  we are          entirely satisfied  with  the  district  court's  reasoning  that          appellant's   "admitted   off-premises   conduct   led   to   the          distribution of the list on school premises."  As for appellant's          objection  to  the  judgment  dismissing the  claim  against  the          members  of the school committee, our due process holding renders          further statement unnecessary.               We do not, however, deem this  such a frivolous appeal as to          grant appellees' motion for attorney's fees.               AFFIRMED.               ________                                         -11-
