                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1999-CA-01037-SCT
COVINGTON COUNTY, MISSISSIPPI SCHOOL DISTRICT a/k/a BOARD OF
EDUCATION OF COVINGTON COUNTY, MISSISSIPPI
v.
G.W., A MINOR

DATE OF JUDGMENT:                              05/20/1999
TRIAL JUDGE:                                   HON. J. LARRY BUFFINGTON
COURT FROM WHICH APPEALED:                     COVINGTON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                        TOMMY BOTT ROGERS
ATTORNEY FOR APPELLEE:                         DAVID SHOEMAKE
NATURE OF THE CASE:                            CIVIL - OTHER
DISPOSITION:                                   REVERSED AND RENDERED - 07/27/2000
MOTION FOR REHEARING FILED:                    8/10/2000; denied 10/5/2000
MANDATE ISSUED:                                10/12/2000



     BEFORE BANKS, P.J., McRAE AND MILLS, JJ.

     MILLS, JUSTICE, FOR THE COURT:


¶1. On December 7, 1998, Candy Knight, a teacher at Seminary Attendance Center in the Covington
County School District, sent a note to Assistant Principal Richard Thames during school hours advising
Thames that a student had informed her that G.W., a 17-year-old minor, was drinking beer in the school
parking lot. The note was then delivered to Principal Billy Ray Smith. Principal Smith and a school security
officer went to the parking lot and found empty beer cans in the back of G.W.'s truck. Upon request, G.W.
unlocked his vehicle and allowed Smith and the officer to search his truck. Seven unopened bottles of beer
were found in a locked toolbox. Upon questioning by Principal Smith, G.W. admitted that the beer was his
and that he had purchased the beer in Covington County. G.W., however, did not appear to be under the
influence on the morning of the incident. G.W.'s mother was immediately notified, and G.W. was suspended
for five days.

¶2. On December 8, 1998, Ronnie Graves, the Superintendent of Education, mailed a letter to G.W. and
his father notifying them of a hearing on the issue of expulsion. On December 17, 1998, the School Board
conducted the hearing and expelled G.W. for the remainder of the school year. G.W. was to be placed in
an alternative school to finish his last semester and would be allowed to graduate with his senior class.
Thereafter, G.W. filed a petition for appeal and/or injunctive relief in the Chancery Court of Covington
County, Mississippi. By order, dated January 5, 1999, the chancellor ordered G.W. returned to school
"until such time as a proper hearing is conducted in compliance with the Covington County Schools
Handbook." The chancellor noted that the notice given to G.W. and his parents was not given by a board
attorney within 24 hours of the incident as the handbook requires.

¶3. Subsequent to the chancellor's order, the School Board re-mailed its notices and letters to G.W. and his
parents and scheduled a second hearing on the expulsion issue. On February 11, 1999, the second hearing
was held, and G.W. was once again expelled for the remainder of the school year. The next day, G.W. filed
a supplemental petition for appeal and/or injunctive relief with the chancery court. The chancery court
granted G.W.'s request and entered a temporary restraining order prohibiting the School Board from
expelling G.W. until a final decision was reached. On May 20, 1999, the chancellor found the school did
not provide proper notice as outlined in the school's handbook and ordered that G.W. be placed back in
school.(1) Aggrieved by the chancellor's decision, the Covington County School District timely perfected this
appeal.

                                       STANDARD OF REVIEW

¶4. "In Mississippi, our standard of review for factual determinations made by a trial judge sitting without a
jury is the substantial evidence standard." Church of God Pentecostal, Inc. v. Freewill Pentecostal
Church of God, Inc., 716 So. 2d 200, 204 (Miss. 1998). "We will not disturb the findings of a chancellor
when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong,
clearly erroneous or an erroneous legal standard was applied." Id.

                                      STATEMENT OF THE LAW

                                                      I.

 WHETHER THE MINOR WAS AFFORDED PROPER PROCEDURAL DUE PROCESS BY
              THE COVINGTON COUNTY SCHOOL DISTRICT

¶5. The Covington County School District asserts that G.W. was afforded procedural due process and that
the school's failure to send a notice through its board attorney within twenty-four hours did not create
"substantial prejudice" to G.W. The school district also argues that the chancellor erred by not addressing
the substantial prejudice issue in his ruling. Accordingly, the school district contends that no substantial
prejudice occurred and that the "manner of the notice, if wrong, was at the most, harmless error." This
Court agrees that G.W. was not denied due process.

¶6. At the time of the incident, G.W. was subject to the rules outlined in the Covington County School
Handbook, which read in relevant part as follows:

     No pupil attending any school in this district shall be permitted to carry upon his/her person
     or have in his/her possession (in any way) alcoholic beverages, morphine, marijuana, cocaine,
     opium, heroin, (or their derivatives or compounds), drugs commonly called LSD, "pep" pills,
     tranquilizers, or any other narcotic drug, barbiturate, substance, ingredient, or compound which, when
     taken orally, intravenously, inhaled, or in any other manner, may cause the person to be under the
     influence thereof; no pupil shall use any of the same at any school of this school district.

     ***

     When a principal determines that a student has violated one or more of the specific standards of
     conduct described in "Student Conduct," he/she may recommend expulsion or long-term suspension
     of such student to the superintendent. The superintendent shall, within 24 hours, through the
     board attorney, give such student and his/her parent or guardian appointed by the Chancery
     Court any notices due him/her consistent with state and federal due process requirements at
     least five (5) days prior to said hearing. Such hearing shall be held within ten (10) days of the
     notice of expulsion or long-term suspension where possible.

(emphasis added). In the present case, however, it was the superintendent, not the board attorney, who
mailed the notice to G.W.'s father on December 8, 1998. In his order, dated May 20, 1999, the chancellor
reasoned as follows:

     First of all, the Covington County School Board has published and in fact requires all students and
     parents to acknowledge that they have received a copy of the Covington County handbook which
     sets forth the criteria that is expected of a student and his parents as well as the responsibilities of the
     principal, administrators and school boards in the handling of student matters. It is the responsibility of
     this Court to give any student and in particular G.W. all of the rights that are incorporated in that
     handbook since the same could be viewed in fact as the "law of the school district." As with any law it
     puts both responsibilities on the school board as well as on the students and parents. Of course as
     adults or members who are overseeing a school system we cannot expect for children to comply and
     to do things that they are expected to unless we as adults likewise do things in the manner in which we
     are required and expected to do. In fact it is probably more important for us as adults to set a proper
     example and to show that we are willing to abide by the rules and are not trying to tell minors or
     students, "Do as we say, not as we do."... In saying that, this Court however strongly feels that the
     due process rights of any and all persons and in particular minors are a very fundamental and sacred
     right... The handbook which has been relied on to expel the minor child, G.W., from the Seminary
     Public School applies to both the minor and the school board...however whenever a school board
     expects strict adherence by a minor then as adults they should expect nothing less from
     themselves. Whether it have been by mistake, ignorance of the rules or misinterpretation or
     because "this is the way it has always been done," this Court in looking at the provisions of
     the handbook concerning expulsions can find no ambiguity and finds that the handbook in
     fact required them to have a notice sent by the school board attorney which was not
     done...Based upon this Court's interpretation that the handbook controls and since the
     proper steps were not taken in this manner, this Court has no alternative except for to
     reinstate the student....

(emphasis added). The chancellor, in his ruling, placed great emphasis on the fact that the board did not
comply with its own handbook requirement, which says written notice must be given by the board attorney
within 24 hours of the incident. Thus, the chancellor implies that the school's failure to comply with its own
rules violated G.W.'s due process rights. Consequently, we must now determine whether the school's failure
to give notice through its board attorney, as outlined in the student handbook, denied G.W. due process.

¶7. The Mississippi Legislature has provided the governing bodies of local schools with substantial authority
to regulate the activities of students and punish students for violation of school policies. Miss. Code Ann. §
37-7-301 (Supp. 1999). "While school boards have substantial disciplinary authority, that authority is legal
in its derivation and its exercise is subject to the Constitution of the United States." Clinton Mun.
Separate Sch. Dist. v. Byrd, 477 So. 2d 237, 240 (Miss. 1985). Consequently, there is no question that
a student facing suspension or expulsion has a property interest that qualifies for protection under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. Warren County Bd. of
Educ. v. Wilkinson, 500 So. 2d 455, 458 (Miss. 1986).

¶8. In Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975), the United States
Supreme Court set forth the minimum due process requirement for students facing a short-term suspension
as follows:

     Students facing temporary suspension have interests qualifying for protection of the Due Process
     Clause, and due process requires, in connection with a suspension of 10 days or less, 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.

However, the Court also noted that, "longer suspensions or expulsions for the remainder of the school term,
or permanently, may require more formal procedures." Goss v. Lopez, 419 U.S. at 584. Additionally, this
Court has previously held that a violation of due process may only be sustained where the aggrieved party
shows "substantial prejudice." Jones v. Board of Trustees, 524 So. 2d 968, 972 (Miss. 1988); see also
Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1083 (5th Cir. 1984); Hill v. Rankin County,
Miss. Sch. Dist., 843 F. Supp. 1112, 1118 (S.D. Miss. 1993). This Court finds that G.W. has failed to
show substantial prejudice.

¶9. In Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1083 (5th Cir. 1984), the Fifth Circuit
concluded that a suspension could not result from a due process violation where there was substantial
evidence to support a finding that the student admitted to the charges. See also Hill, 843 F. Supp. at 1118
(where student admitted to the charges brought against him, the court found his indefinite suspension was
not the result of a procedural due process violation but rather of his own misconduct). Similarly, G.W.
admitted that the beer found in his truck was his and that he was the one who had purchased the alcohol.
Such a confession, on its own, negates the possibility that G.W. was denied procedural due process.

¶10. G.W. next contends that he was denied due process when the school failed to send notice through the
superintendent, and not the board attorney as outlined in the handbook. This Court also finds this argument
to be without merit. G.W. was suspended on December 7, 1998, immediately following the discovery of
beer in his truck. His mother was immediately notified of the situation. On December 8, 1998, the
superintendent mailed a letter to G.W. and his father, notifying them that a hearing had been set for
December 17, 1998, on the expulsion issue. The letter explained that the recommendation for expulsion
was based on G.W.'s violation of the Drug and Alcohol section of the handbook. The letter also gave the
date and time of the hearing, informed G.W. and his father that G.W. was entitled to be represented by
counsel if he so desired, and informed G.W. that his disciplinary record would also be considered at the
hearing. Additionally, the letter contained attachments which outlined the charge against G.W., which was
possession of alcohol on school premises. G.W. received the notice on December 11, 1998, and his father
received the notice on December 18, 1998. G.W. and both parents, however, were present for the formal
hearing and were once again advised of their right to have counsel present. They waived this right.

¶11. G.W. and his parents argue that they did not receive timely notice of the charges being brought against
G.W. By reading the language of the handbook, it is not clear whether notice must be sent or actually
received within 24 hours of the incident. It is clear, however, that notice must be received 5 days prior to
the formal hearing. Although it is important to point out that G.W.'s father did not receive timely notice for
the first formal hearing, his presence at the hearing indicates that he was aware of the proceedings.
Furthermore, the school board conducted a second formal hearing, wherein it did properly notice G.W.'s
father. We emphasize that this Court is not reaching the conclusion that the school board has the inherent
authority to violate its own rule, and we frown on such lack of proper procedure. A school board which
adopts rules that it does not follow should expect no more from its students. Rather than sending the notice
through certified mail, the school district should have hand-delivered the notice. However, taking into
consideration that both parents were present at the first formal hearing, along with the fact that G.W. did
receive a second formal hearing, we find this issue to also be without merit.

¶12. Furthermore, no material information was missing from his notice. Although sending the notice through
the board attorney would have been proper under the guidelines in the handbook, no additional information
or language would have been included in the letter. While it is true that there are many punishments that
would seem less harsh or more appropriate in this case, we must recognize that the law commits this entire
matter to the discretion of the school board. Clinton Mun. Separate Sch. Dist. v. Byrd, 477 So. 2d at
242. This school district has imposed a zero tolerance policy, which absent a violation of G.W.'s due
process rights, it has the discretion to enforce. We find that no such due process violation occurred.

                                                       II.

   WHETHER THE SCHOOL DISTRICT CONDUCTED A REASONABLE AND PROPER
                      SEARCH OF G.W.'S VEHICLE

¶13. The school district argues that the chancellor erred by finding that the school should have first obtained
a search warrant, notified G.W.'s parents, and given G.W. an opportunity to speak with his parents before
searching G.W.'s vehicle. In his order, dated May 20, 1999, the chancellor reasoned as follows:

      This Court has questions as to the search that was conducted of the minor's vehicle without first of all
      obtaining a search warrant and most importantly taking statements and requiring a student to open a
      locked tool box when he was not in fact present in the vehicle and had to called from class...when a
      complaint is received that a child becomes a subject of an investigation then this Court feels that first
      of all prior to taking any statements that a parent shall be notified and the student given an opportunity
      to talk with that parent prior to making any statements or allowing any searches. Secondly, since at
      the time of the search the minor was not in the vehicle and in fact was not in control of that vehicle
      then the safe route to take would be especially [sic] since a law officer was present to obtain a search
      warrant to search said vehicle.

This Court disagrees with the chancellor's ruling and finds that the chancellor erred in reaching this
conclusion.

¶14. In New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), a teacher reported
that she saw T.L.O. smoking during school, and the principal searched T.L.O.'s purse for the cigarettes.
While recognizing that Fourth Amendment rights do attach to searches and seizures conducted by a school
official, the United States Supreme Court upheld the legality of the search of T.L.O.'s purse, and found that
"the legality of a search of a student should depend simply on the reasonableness, under all the
circumstances, of the search." Id. at 341. "By focusing attention on the question of reasonableness, the
standard will spare teachers and school administrators the necessity of schooling themselves in the niceties
of probable cause and permit them to regulate their conduct according to the dictates of reason and
common sense." Id. at 343. "At the same time, the reasonableness standard should ensure that the interests
of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the
schools." Id.

¶15. The Court then set forth the following twofold test to determine when a search is reasonable:

      (1) First, one must consider whether the search as actually conducted was justified at its inception;

      (2) 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.

Id. "It is universally recognized that evidence, to be relevant to an inquiry, need not conclusively proved the
ultimate fact in issue, but only have 'any tendency to make the existence of fact that is of consequence to the
determination of the action more probable or less probably than it would have been without the evidence."
Id. at 345. "The requirement of reasonable suspicion is not a requirement of absolute certainty." Id. at 346.

¶16. Furthermore, the Supreme Court held that "school officials need not obtain a warrant before searching
a student who is under their authority."Id. at 333, 340. "The warrant requirement, in particular, is unsuited
to the school environment: requiring a teacher obtain a warrant before searching a child suspected of an
infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift
and informal disciplinary procedures needed in schools." Id. at 340.

¶17. In S.C. v. State, 583 So. 2d 188 (Miss. 1991), a student told the assistant principal that S.C. had
offered to sell him handguns and that those handguns were at school. The assistant principal, along with
another assistant principal, removed S.C. from class and asked him to open his locker. S.C. complied and
two guns were found in his locker. Id. at 189. This Court found the search of S.C.'s locker to be
reasonable. While it is important to note that "students have a reasonable expectation of privacy in their
school lockers," we must also emphasize that high school students fall into a different and generally less
suspect class. Id. at 191-92.

¶18. In the present case, Principal Smith was informed that G.W. had been drinking in the school parking
lot. Principal Smith later testified that this story was corroborated by other students who saw G.W. drinking
and that he knew of no reason or motive that would cause them to lie about G.W.'s actions. "Absent
information that a particular student informant may be untrustworthy, school officials may ordinarily accept
at face value the information they supply." Id. at 192. Furthermore, Principal Smith and the school security
officer saw empty beer cans in the back of G.W.'s truck. At the very minimum, reasonable suspicion was
established.

¶19. G.W. argues that a search warrant should have first been secured by the school district before it
searched his vehicle. This Court rejects his contention. G.W.'s argument clearly ignores the principle set
forth in T.L.O., that a search warrant is not required when a search is being conducted by a school official.
Furthermore, all students who bring a vehicle onto school premises must register the vehicle. G.W.'s
registration form was signed by his mother and specifically states that "vehicles will be routinely
checked/searched."

¶20. G.W. also argues that there is a greater expectation of privacy in an automobile than in a school
locker. While this may be true when one is driving down the street, we can hardly say such a higher
expectation of privacy should be had in a car on school property as opposed to a school locker. In State v.
D.T.W., 425 So. 2d 1383 (Fla. Dist. Ct. App. 1983), a District Court of Appeal of Florida held that a
search of a student's vehicle was proper under the Fourth Amendment where a teacher's aide patrolled the
parking lot and saw drug paraphernalia in a student's car. The Florida court reasoned that "the realities of
the school setting require that teachers and other school personnel have the power to make an immediate,
limited search, for contraband, weapons, or other prohibited objects or substances, when a reasonable
subjective suspicion supported by objective, articulable facts would lead a reasonably prudent person to
suspect that these items or present, or that school regulations are being violated." Id. at 1386. The Florida
court further noted that society places a high value on education, which "requires an orderly atmosphere
which is free from danger and disruption. The introduction of dangerous or illegal items or substances into
the school presents a hazard for teachers and students." Id.

¶21. In the present case, there was reasonable suspicion to believe that G.W. had been in the parking lot
drinking before class. A student reported the incident, and several other students confirmed the report.
Empty beer cans were found in the back of G.W.'s truck. A reasonable school official under these
circumstances would and should have regarded this information sufficient to take action. The search was
justified and was reasonably related to the student's assertion that G.W. had been in the parking lot
drinking. Therefore, we conclude that the chancellor erred by finding the search of G.W.'s vehicle to be
illegal under the Fourth Amendment.

                                                     III.

     WHETHER HEARSAY EVIDENCE WAS THE SOLE BASIS UPON WHICH THE
   COVINGTON COUNTY SCHOOL BOARD BASED THEIR ULTIMATE DECISION TO
                            EXPEL G.W.

¶22. G.W. contends that he was denied a fair and impartial hearing before the school board because the
board considered hearsay testimony, i.e., the principal testified to what other students had told him about
the incident. This Court rejects this argument and finds it to be without merit. G.W. was charged with
possession of alcohol. While it is true that the principal testified that other students informed him that G.W.
had been drinking, the principal also testified to what he actually saw. Furthermore, "hearsay testimony from
school employees is apparently treated differently, and admitting this type of hearsay does not deprive a
student of due process." Jones v. Board of Trustees, 524 So. 2d at 973; see also Boykins v. Fairfield
Bd. of Educ., 492 F.2d 697, 700-01 (5th Cir. 1974). G.W. was charged and expelled for possession of
alcohol, not for being under the influence. The only purpose for the principal describing what other unnamed
students had told him was to show the reason he went to G.W.'s vehicle in the first place. Furthermore,
hearsay testimony from a school official does not deprive a student of any due process rights. Accordingly,
this issue is without merit.

¶23. G.W. next asserts that he was denied due process because he did not receive the names of witnesses
prior to the first hearing. G.W. did, however, receive the names of witnesses who would testify prior to the
second hearing. "Since how much process is due depends on the particular circumstances, a denial of a list
of witnesses will not always amount to a prejudicial denial of due process." Jones v. Board of Trustees,
524 So. 2d at 972.

¶24. Likewise, in Keough, 748 F.2d at 1081, a student was not provided with a list of witnesses prior to
the hearing. The Fifth Circuit acknowledged that the argument was "not without some basis" and that such
safeguards should be afforded to satisfy long-term suspensions. Id. However, the Court held that "the
standards of procedural due process are not wooden absolutes" and that "the sufficiency of procedures
employed in any particular situation must be judged in the light of the parties, the subject matter, and the
circumstances involved." Id. Accordingly, the Fifth Circuit held that the student was not denied due process
because the student and his parents were fully appraised of the charges, the underlying facts supporting the
charges, the nature of the hearing, and that they were entitled to counsel. Id. at 1082.

¶25. Similarly, this Court finds that G.W. was not denied due process when the school failed to provide a
list of witnesses prior to the first hearing. G.W. was appraised of the charge against him, the nature of the
hearing, and that he was entitled to have counsel present. Furthermore, he has failed to show exactly how
he was substantially prejudiced by not having the names prior to the first hearing. Therefore, this issue is
also without merit.

                                              CONCLUSION

¶26. The school district's failure to follow the procedures set forth in the handbook, while problematic, did
not deny G.W. any substantive or due process rights under the Fourth and Fourteenth Amendments to the
United States Constitution. Any possible due process violations were cured when G.W. received the
second formal hearing. Additionally, we find the search of G.W.'s automobile by a school official, while on
school property, did not violate the search and seizure clause of the Fourth Amendment. Therefore, this
Court reverses and renders the decision of the Covington County Chancery Court and reinstates the
decision of the Covington County School District.

¶27. REVERSED AND RENDERED.

      PRATHER, C.J., PITTMAN AND BANKS, P.JJ., McRAE, SMITH, WALLER, COBB
      AND DIAZ, JJ., CONCUR.

1. This case is not moot and fits within the exception as outlined in Board of Trustees v. Knox, 638 So.
2d 1278, 1282 (Miss. 1994).
