                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-1668
                                  ___________

Elizabeth Jennings; Steve Jennings;     *
Elizabeth Jennings, as next friend of   *
Rachel Jennings; Nadine Schwaigert;     *
Fred Schwaigert; Nadine Schwaigert,     *
as next friend of Lauren and Sarah      *
Schwaigert,                             *
                                        *
            Plaintiffs/Appellants,      *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Wentzville R-IV School District; John *
Waters, as Principal of Wentzville Holt *
High School; Diane Moran, as Teacher *
at Wentzville Holt High School;         *
Michelle Senda, as Cheerleading         *
Advisor at Wentzville Holt High School,*
                                        *
            Defendants/Appellees,       *
                                        *
Kimberly Miller,                        *
                                        *
            Defendant.                  *
                                   ___________

                            Submitted: November 16, 2004
                               Filed: February 16, 2005
                                ___________

Before RILEY, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
                            ___________
RILEY, Circuit Judge.

        This federal case charges violations of procedural due process and failure to
train, arising from a school district’s ten-day suspension of two student cheerleaders
who consumed alcohol shortly before performing at a school football event.1 The
parents of two high school students claim the Wentzville R-IV School District
(District) and certain members of its staff violated the Fifth and Fourteenth
Amendment rights of their respective daughters, Rachel Jennings (Rachel) and
Lauren Schwaigert (Lauren). The parents appeal the district court’s2 adverse grant
of summary judgment in favor of the District and its staff. We affirm.

I.     BACKGROUND
       Rachel and Lauren, members of the Holt High School varsity cheerleading
squad (squad), drank vodka at another student’s house after school on August 30,
2002, before attending a cheerleading photograph session. After the photo session,
the two returned to their friend’s house and finished drinking their vodka drinks. At
approximately 7:00 p.m., Rachel and Lauren left the house to attend a football
jamboree at Holt High School, where the squad performed until 9:00 p.m. During the
performance, some squad members suspected others on the squad had consumed
alcohol before the jamboree. One squad member testified Rachel, during warmups
before the game, confided, “Don’t tell anyone, me and Lauren are drunk.” During the
game, Diane Moran (Moran), the varsity cheerleading advisor, was informed of one
squad member’s suspicions. After the jamboree, Moran met briefly with the squad
to discuss the evening’s performance, after which the individual members left the


      1
        A third cheerleader was also a subject of the allegations, investigation, and
disciplinary action involved in this case, but is not involved in this litigation.
      2
       The Honorable Frederick R. Buckles, United States Magistrate Judge for the
Eastern District of Missouri, to whom this case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).

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football field. Moran also talked with Lauren and the third cheerleader about rumors
they had consumed alcohol before the jamboree. Later that night, Moran received
telephone calls at her home from various cheerleaders, who informed Moran they
were quitting the squad. After Moran learned five squad members were gathered at
a cheerleader’s home, Moran went to that home to rectify the situation. When Moran
arrived, these squad members declared they could not cheer with girls who had been
drinking before the game. Moran decided the squad should not talk about Rachel and
Lauren without them present to defend themselves, so Moran drove to Rachel’s and
Lauren’s homes, picked them up, and brought them to the meeting. Rachel and
Lauren attended the meeting from approximately 11:00 p.m. to 2:00 or 2:30 a.m.,
after which Moran drove them home. At the meeting, neither Rachel nor Lauren
admitted consuming alcohol before the jamboree.

       The next day, Moran spoke to Rachel’s parents, Steve and Elizabeth
(Elizabeth) Jennings, and to Lauren’s mother, Nadine Schwaigert (Nadine), about the
events from the previous night. Both Rachel and Lauren admitted to their mothers
that they consumed alcohol before the jamboree. On Monday, September 2, Moran
told school Activities Director David Gerdeman (Gerdeman) about the possibility
Rachel and Lauren drank alcohol on August 30, and about the meeting Moran had
with the cheerleaders that night. On September 3, Gerdeman told Principal John
Waters (Waters) about the allegations of alcohol consumption and about the late-
night meeting. Waters met with District Superintendent Dr. Thomas Byrnes (Dr.
Byrnes) and Assistant Principals Richard Fohey (Fohey) and Frank Barro (Barro).
Dr. Byrnes told school administrators to investigate the allegations against Rachel
and Lauren, but to do so “from scratch” without using information obtained during
the late-night meeting Moran conducted. Waters met with the varsity cheerleading
squad after school on September 3 and, without mentioning Rachel’s or Lauren’s
names, informed them the District would not use information obtained during the
late-night meeting. On September 5, Waters and Dr. Byrnes removed Moran from her



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cheerleading advisor position, based on their belief Moran exhibited poor judgment
in conducting such a late-night meeting.

      The same day, Waters interviewed Rachel and invited Elizabeth to attend,
which she did. Elizabeth informed Waters they would not answer any questions
about alcohol consumption on August 30, although Rachel denied being under the
influence of alcohol on August 30. Waters also attempted to meet with Lauren that
day, but after Waters invited Nadine to attend, she withdrew Lauren from school. On
September 9, Rachel’s and Lauren’s parents filed the present lawsuit under 42 U.S.C.
§ 1983, and pursuant to Missouri state law.3

       In response to the lawsuit, the District’s attorney advised the administration to
obtain written statements from students about the events involved in this case.
Several students informed Waters they saw Rachel and Lauren consume alcohol
before the jamboree. On September 17, based on “overwhelming evidence,” Waters
decided to impose a ten-day, out-of-school suspension on Rachel and Lauren for
being under the influence of alcohol at a school function, in violation of school
policy. When Waters called to inform Elizabeth about the suspension, Elizabeth
abruptly ended the conversation and told Waters any further communication would
be through her attorney. Waters attempted unsuccessfully to contact Nadine and her
husband, Fred, eventually leaving a message on their answering machine informing
them of the decision to suspend Lauren and inviting them to contact him if they had
any questions. On September 18, Fohey and Barro sent written confirmations to the
parents of the ten-day suspensions for alcohol use, which letters also informed the
parents they could seek review of the suspensions in accordance with school board




      3
      After dismissing the section 1983 claims, the district court declined
supplemental jurisdiction of the plaintiffs’ state law claims and dismissed them
without prejudice.

                                          -4-
policy by request of the principal and superintendent. Neither Rachel’s parents nor
Lauren’s parents ever contacted any school administrator regarding this matter.

      Under the Student Code of Conduct, as set out in the District’s Discipline
Code, a first offense for alcohol use or possession is punishable by a ten-day, out-of-
school suspension. Rachel knew consuming alcohol before a school event violates
the policy, and Lauren was aware the policy called for a ten-day suspension for
alcohol use.

      When Moran joined the District’s staff in 2000, she attended a two-day
orientation program designed to familiarize new teachers with the District’s
Discipline Code and the high school’s Student Code of Conduct. Three times each
school year the District also provides training for coaches regarding disciplinary
measures when responding to student misconduct. Moran, who became involved in
the cheerleading program in 2001, had not yet attended this training, but had received
a folder regarding the regulations of the Missouri State High School Activity
Association (MSHSAA).

II.   DISCUSSION
      “We review the district court’s grant of summary judgment de novo.” Interstate
Cleaning Corp. v. Commercial Underwriters Ins. Co., 325 F.3d 1024, 1027 (8th Cir.
2003). “We will affirm a district court’s grant of summary judgment ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits . . .’ demonstrate that no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P.
56(c)).

       A.    Failure to Train
       The parents first claim Rachel’s and Lauren’s constitutionally protected liberty
rights were violated because the District “patently fail[ed] to train, educate, warn and

                                          -5-
instruct [its] employees in the proper manner of conducting investigations into
allegations of student misconduct.” To establish the District’s liability under section
1983 for failure to train employees adequately, the parents must prove the failure to
train in a relevant respect demonstrated a “deliberate indifference” to the students’
constitutional rights. City of Canton v. Harris, 489 U.S. 378, 389 (1989); Larson v.
Miller, 76 F.3d 1446, 1454 (8th Cir. 1996) (en banc). To show deliberate
indifference, the parents must prove the District “had notice that its procedures were
inadequate and likely to result in a violation of constitutional rights.” Larson, 76 F.3d
at 1454 (citation omitted). Notice to the District may be implied when (1) “the failure
to train is so likely to result in a constitutional violation that the need for training is
patently obvious,” or (2) “a pattern of misconduct indicates that the school district’s
responses to a regularly recurring situation are insufficient to protect the students’
constitutional rights.” P.H. v. Sch. Dist. of Kansas City, 265 F.3d 653, 660 (8th Cir.
2001). The parents rely on the first implication, claiming it was “patently obvious”
the District’s failure to train Moran adequately would result in violation of
constitutional rights.

       Like the district court, we assume without deciding that Rachel’s and Lauren’s
presence at the cheerleader’s residence on August 30 and 31 amounted to a
deprivation of their liberty sufficient to invoke constitutional protections. In
analyzing the alleged failure to train, we focus on the District’s training policy, not
on the way Moran absorbed the training. Larkin v. St. Louis Hous. Auth. Dev. Corp.,
355 F.3d 1114, 1117 (8th Cir. 2004). The parents concede the District “provided
training in the manner in which employees should conduct investigations and report
allegations of misconduct to school officials, namely assistant principals.” Indeed,
the District required all of its teachers be trained on the manner in which to conduct
investigations into student misconduct. Holt High School provided three basic
training sessions per year (fall, winter, and spring) for coaches, including
cheerleading advisors, regarding disciplinary matters.



                                           -6-
       Although the parents contend Moran did not attend the training sessions and
there was no requirement she do so, the evidence does not support this argument. The
parents rely on selected pages from Moran’s deposition transcript and cite them out
of context. A complete and fair reading of the evidence clearly indicates Moran
received some training on the District’s disciplinary policies. Moran attended a two-
day orientation seminar when she began her employment with the District, at which
time she received training on a “myriad” of topics, including her responsibilities as
a teacher, classroom management, the Student Code of Conduct and the District’s
Discipline Code. Moran was instructed to follow those policies. After becoming
cheerleading advisor, Moran received written materials from Gerdeman about
MSHSAA regulations, because Moran had missed an earlier training session on those
regulations. In 2002, Moran also attended a meeting for coaches with Gerdeman in
the school auditorium, receiving training on the District’s Discipline Code and the
Student Code of Conduct.

       Nothing in the record suggests the District had any hint its policies were
inadequate and likely to result in constitutional violations. The training of District
employees was ongoing. There is no evidence of other late-night meetings, nor any
other complaints or indication the District’s failure to offer additional training would
likely result in some constitutional violation. See P.H., 265 F.3d at 661. A single
incident, under these circumstances, is insufficient to make a lack of training patently
obvious, see Palmquist v. Selvik, 111 F.3d 1332, 1347 (7th Cir. 1997), and, as the
district court noted, effective training need not specifically address every conceivable
situation an employee may encounter, see P.H., 265 F.3d at 661. That a particular
teacher, or cheerleading advisor, might be unsatisfactorily trained does not alone
suffice to represent District policy and make the District liable. The teacher’s or
advisor’s shortcomings may have resulted from factors other than a flawed training
program, such as occasions when an otherwise sound program is administered
negligently. See City of Canton, 489 U.S. at 390-91. Because the District did not
have notice that its training policy was inadequate, the parents have failed to show

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deliberate indifference. See, e.g., Thelma D. v. Bd. of Educ., 934 F.2d 929, 935 (8th
Cir. 1991). Therefore, we conclude the parents did not present sufficient evidence
to support a section 1983 claim for failure to train.

       B.     Procedural Due Process
       The parents claim Rachel and Lauren were denied their procedural due process
rights to an impartial decisionmaker, to be represented by counsel, and to impeach the
evidence against them. The District argues that, because Rachel and Lauren received
all the process they were due for the suspension, there is no constitutional violation
upon which municipal liability can be based.

       In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court addressed the due
process protection available to students facing temporary suspensions. The Court
recognized “[a] 10-day suspension from school . . . may not be imposed in complete
disregard of the Due Process Clause,” because a student’s “legitimate entitlement to
a public education [is] a property interest” protected thereby. Id. at 574, 576. The
Court held “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[,]” though “[t]here need be no delay between the time
‘notice’ is given and the time of the hearing.” Id. at 581-82. The Court “stop[ped]
short of construing the Due Process Clause to require, countrywide, that hearings in
connection with short suspensions must afford the student the opportunity to secure
counsel, to confront and cross-examine witnesses supporting the charge, or to call his
own witnesses to verify his version of the incident.” Id. at 583.

      The record persuasively indicates Rachel and Lauren were afforded due
process. Rachel and Lauren received notice they were being charged with violating
school policy by consuming alcohol before a school event. Waters talked to Rachel
about the charge and gave her an opportunity to respond. After additional

                                         -8-
investigation, Waters informed Elizabeth that Rachel would be suspended for ten
days, based on “overwhelming evidence,” but Elizabeth terminated the discussion
without permitting Waters to explain what evidence he possessed. Waters also
scheduled a meeting with Lauren to discuss the charge and give her an opportunity
to respond. However, Nadine removed Lauren from school, which prevented this
meeting. After an investigation, Waters attempted to contact the Schwaigerts to
inform them Lauren would be suspended for ten days, but was only able to leave a
message on their answering machine. Without providing details, Waters informed the
Schwaigerts his decision was based on “overwhelming evidence,” and invited them
to contact him to discuss the matter. Neither the Jennings nor the Schwaigerts
contacted Waters. Both Rachel and Lauren, as well as their parents, were given the
“opportunity to present [their] side of the story,” which is all that is required. Id. at
581.

        The parents also contend Rachel and Lauren were entitled to counsel, to
impeach the evidence against them, and to present evidence on their own behalf,
citing Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004). This
argument also is foreclosed by Goss. The Goss Court observed that forcing schools
to impose “even truncated trial-type procedures might well overwhelm administrative
facilities in many places and, by diverting resources, cost more than it would save in
educational effectiveness.” Goss, 419 U.S. at 583. The Court continued, “Moreover,
further formalizing the suspension process and escalating its formality and adversary
nature may not only make it too costly as a regular disciplinary tool but also destroy
its effectiveness as part of the teaching process.” Id. As noted above, Rachel and
Lauren, and their parents, were advised of the charges and were afforded an
opportunity to be heard. The parents alone prevented any meeting with Waters,
thereby denying themselves (1) the information they now argue they were deprived,
and (2) the opportunity to respond. No criminal charges were brought against Rachel
and Lauren, and there is no evidence such charges were even considered. The
District officials did not assume a law enforcement role. The school was enforcing

                                          -9-
standards promulgated for the students’ own welfare. Accordingly, the right to
counsel was never implicated in this case.

       As to Waters’s partiality, the court’s analysis begins “with a presumption that
decision-makers are honest and impartial.” de Llano v. Berglund, 282 F.3d 1031,
1035 (8th Cir. 2002) (citation omitted). Both parties cite Riggan v. Midland
Independent School District, 86 F. Supp. 2d 647 (W.D. Tex. 2000), for guidance on
the partiality issue. In Riggan, the court observed, “In a school disciplinary context,
the level of impartiality required for the decision maker does not reach the absolute
neutrality required in the criminal justice system. Impartiality is presumed in the
school context and due process is not implicated simply because the disciplinarian
observed the conduct, had some knowledge regarding it, or even investigated prior
to the hearing.” Id. at 656 (citation omitted). The court denied summary judgment
because the conduct involved in the case, the principal disciplining a student who
allegedly had evidence of sexual misconduct committed by the principal himself, was
“of such an obviously personal nature that any reasonable administrator would have
deferred to another uninvolved individual to conduct any investigation or to mete out
any discipline.” Id. at 657.

      Waters’s alleged bias does not amount to a deprivation of procedural due
process. See Brewer v. Austin Indep. Sch. Dist., 779 F.2d 260, 264 (5th Cir. 1985)
(“A school administrator involved in the initiation and investigation of charges is not
thereby disqualified from conducting a hearing on the charges, although the facts of
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.’”) (quoting Sullivan v. Houston Indep. School Dist., 475 F.2d 1071, 1077
(5th Cir. 1973)); cf. C.B. v. Driscoll, 82 F.3d 383, 387 n.3 (11th Cir. 1996) (“In the
school context, it is both impossible and undesirable for administrators involved in
incidents of misbehavior always to be precluded from acting as decisionmakers.”).
The parents’ suggestion, that Waters was unconstitutionally biased because he

                                         -10-
suspended Rachel and Lauren after this lawsuit commenced, is frivolous. No
personal involvement or animus by Waters was implicated in this case. As part of his
job, Waters investigated possible disciplinary violations. The investigation began
well before the parents filed suit against Waters, and the suspensions were not in any
way related to action the parents later took against Waters. The suspensions were
clearly based on a published school policy of long standing.

      We would be loath to conclude a procedural due process violation occurs when
a lawsuit is filed against a school principal shortly before impending disciplinary
action is taken. Such a conclusion could result in frivolous lawsuits filed against
school officials, before these officials take disciplinary action, in an effort by parents
and students to foreclose school discipline by “creating a bias” in the particular
school official. School administrators must be free to pursue due process disciplinary
procedures without the fear of disqualification from the threats and acts of litigious
parents and students.

III.  CONCLUSION
      Rachel and Lauren received due process, and their section 1983 claims fail.
For the reasons stated, we affirm the district court’s grant of summary judgment in
favor of the District.

JOHN R. GIBSON, Circuit Judge, concurring specially.
    I concur in the result and in the judgment.
                     ______________________________




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