Donovan v. Ritchie, 1st Cir. (1995)

7/26/2019 Donovan v. Ritchie, 1st Cir. (1995)

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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.

____________________


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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

____________________


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COFFIN, Senior Circuit Judge. This appeal requires us_____________________

decide whether the procedural due process requirements of Gos__


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Lopez, 419 U.S. 565 (1975), applied to and, if so, were corre _____

applied to a high school student before his suspension.

Appellant, a senior at Winchester High School, bro

suit under both federal and state statutes and constituti

provisions against the school principal, the superintendent

schools, and the school committee, seeking injunctive rel

compensatory and punitive damages, and attorney's fees and c

for his ten-day suspension from school and exclusion from var

extracurricular activities.

At the conclusion of a five-day bench trial, in whic

evidence and argument focused solely on whether appellant

been afforded procedural due process, the district court gra

judgment as a matter of law for the school committee members


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found that the process given appellant was adequate. Appel

appeals from these dispositions but has not furnished us wi

transcript of the trial proceedings. We affirm.

The case revolves about a nine-page document bearin

large capital letters, the scatological title, "The Shit Li

Apart from a cover page and a concluding page containing gen

remarks of a boorish nature, the document zeroed in on some

named students,1 each name being followed by one or more line

____________________

1 The district court referred to the list as containin

"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 o

each student.

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crude descriptions of character and/or behavior. The fres

fewer than a dozen, were treated to insulting comments a

their appearance or social conduct. But the sophomores

juniors, more than thirty in each group, and more than s

seniors were characterized by epithets that were not me

insulting as to appearance, but suggestive, often explicitly

of sexual capacity, proclivity, and promiscuity.

The sequence of events leading to appellant's suspensio


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the following. On September 18, 1994, a Sunday, some fif

students were gathered in the home of one of them when the

was created by someone still unknown. On Thursday appellant

two other boys made copies of the list and put them in a t

barrel. They were delivered to the school soon after. Afte

was discovered by a faculty member the next day, Princ

Ritchie announced to the school that the list was harmful

degrading, and urged students to provide information as to

perpetrators. On the following Monday, September 26, appel

and two others came to Ritchie's office and denied

involvement.

The next day they came back and said that they

photocopied the list but denied knowing the contents and t

since the photocopying was outside of school premises, they


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not subject to school discipline. The principal disagree

said that they would probably face suspension. Meanw

Principal Ritchie met with other students and compiled a lis

fifteen students who were said to be present at the creatio

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the list. On Thursday, September 29, a letter was sent to

fifteen, announcing a meeting the next day for them and t


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parents.

At the September 30 meeting, Principal Ritchie said that

list was a violation of the school's rules, as set forth in

school handbook, against harassment and obscenity. After

meeting, Ritchie met with appellant and his mother and sai

was indefinitely suspended. He did not specify the length of

suspension, but said that information would soon be forthco

In a letter requested by the principal and received the follo

Monday, October 3, appellant wrote apologizing for this

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 Te


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consisting of twelve staff members, and then wrote appella

mother, specifying "the consequences for your son, Christop

participation in the chain of events leading up to

distribution of the 'Shit List' at Winchester High School."

were suspension for ten days, and exclusion from any sc

social events and interscholastic athletics.

Principal Ritchie identified the following parts of

Student Handbook as being violated: (1) the cover, which ca

for an end to name calling, harassment, "put downs;" (2

opening statement proscribing "harassment of any kind;" (

section proscribing violent behavior, vandalism, or violatio

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students' civil rights on school premises or at school-rel

events, carrying the sanction of indefinite suspension

expulsion; and (4) a section barring abusive or obscene lan

or materials. Possible reinstatement to athletic programs

appellant's case, lacrosse) and removal of the letter

appellant's file was to depend on steps "to repair the damage

individuals and the school.

In a subsequent, undated letter to the principal, appel

complained of his "excessive punishment" and added to his p


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statement that he thought "it was the Underground Newspaper."

Appeals to the superintendent and later to the sc

committee, in which presentations were made by both appella

attorney and the principal, were unsuccessful.

Discussion __________

We must first face a threshold question: whether

sanction imposed on appellant was an expulsion or a ten

suspension. Appellant's brief assumes throughout that it was

former, citing the fact that Principal Ritchie initially

appellant and his mother than he was indefinitely suspen

Appellant then cites Jones v. Fitchburg, 211 Mass. 66, 68,

_____ _________

N.E. 612, 613 (1912), for the proposition that a suspens


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"intended to operate[] for an indefinite period, . . . in ef

amount[s] to a permanent exclusion. . . ." Accordingly

invokes the authorities that specify a considerable panopl

rights, including the assistance of counsel and the rig

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examine witnesses at a hearing. See, e.g., Dixon v. Ala ___ ___ _____ __


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State Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961). __________________

Unfortunately for appellant, the mere repetition of

expulsion label is of no avail. As the district court fo

Principal Ritchie, after informing appellant and his mother

he was indefinitely suspended, told them that they would rec

the information as to the length of the suspension in the

"shortly thereafter." Five days later, after conferring wit

"Crisis Team," he sent his letter of October 5, containin

details of the ten-day suspension. Appellant cannot attac

basis of the district court's finding that he was suspended,

he has not furnished us with a transcript. Real v. Hogan,____ _____

F.2d 58, 60 (1st Cir. 1987) ("If [the existing record] pr

inconclusive, it is the appellant who must bear the brunt of


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insufficient record on appeal.") In any event, however, we

be unlikely to find "clear error" in the finding. Cf. Rolan__ ____

v. Concord School Committee, 910 F.2d 983, 990 (1st Cir. 1990 ________________________

We are, therefore, dealing with the kind of tempo

suspension at issue in Goss v. Lopez. In that case the C ____ _____

succinctly summarized the three procedural prerequisites: "

the student be given oral or written notice of the cha

against him and, if he denies them, an explanation of

evidence the authorities have and an opportunity to present

side of the story." 419 U.S. at 581. The Court added, "In

great majority of cases the disciplinarian may informally dis

the alleged misconduct with the student minutes after it

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occurred." Id. at 582. In order for the student "to explain___

version of the facts at this discussion, [he should] first

told what he is accused of doing and what the basis of

accusation is." Id. "Requiring that there be at leas___

informal give-and-take between student and disciplinarian,"

Court concluded, would at least give the student "the opportu

to characterize his conduct and put it in what he deems


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proper context." Id. at 584. ___

It is clear, first of all, that appellant had ade

notice. The principal warned him several days before

suspension took effect that the conduct he had acknowle

likely would result in his suspension. The principal's lette

October 5, elaborating on and specifying the bases for

suspension, referred to the High School Handbook, which e

student was obliged to read and understand. Its cover, as

letter noted, briefly but clearly identified name-call

harassment, and "put downs" as actions to be resisted.

principal also referred to the "Opening Remarks" of the Handb

prohibiting "harassment of any kind." This introductory sec

defined "harassment" as "conduct, behavior, or comments that


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personally offensive, degrading, or threatening to others,"

gave such examples as "sexually suggestive remarks, . . . an

display or circulation of written materials . . . that

degrading to any individual. . . ."

Thirdly, the principal cited to a regulation bar

fighting, violent behavior, or "violation of other stude

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civil rights" on school premises, the violation of which ca

for an indefinite suspension and possibly expulsion. Appel

challenges the relevance of this regulation to the facts of

case. He also argues that more formal procedures regar

notice, counsel, and presentation of witnesses are required u

this regulation. This would seem to be true but it is ob

from the sanction imposed, a temporary suspension, that

regulation was not a ground for decision.

The principal's fourth basis for punishment was regulat

barring the use of either obscene materials or language that

"abusive," "obscene," "profane," or "vulgar."

Apart from the attack noted above to the third ground li

by the principal, appellant makes only two arguments. The f


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is that a passage in "Opening Remarks" urges sensitivity to

feelings of others and prompt communication between a student

feels aggrieved and an offender so that objectionable beha

may be brought to an end quickly. To read this as preemptin

more severe treatment of what has been "strictly prohibite

not only to treat the Opening Remarks section as intern

inconsistent but also to ignore other parts of the Han

detailing a twelve point "Range of Consequences" for violat

of the student disciplinary code that extend from verbal war

to expulsion. Appellant's second thrust is against the cha

of abusive or obscene language. His brief makes the asser

that "Notwithstanding that Ritchie found no evidence to sup

the foregoing, Ritchie cites this regulation without


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explaining to Donovan how it was violated." This, in the l

of "The Shit List" itself, defies rational justification eve

the context of strenuous advocacy.

By the same token, there can be no rational question ra

as to the basis for the suspension. Indeed, appellant

precisely what the basis was -- the preparation and distribu

of the list; he acknowledged his part in making photocopies


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merely asserts that he did not know the contents. This lea

to the third requirement of Goss v. Lopez, an opportunity for____ _____

student to have presented his version of the facts.

We conclude from the record that appellant had, and

advantage of, multiple opportunities to present his view of

occurred. On September 26, he and two others met with Princ

Ritchie and denied any involvement. On September 27, they

another meeting and admitted photocopying, but no knowled

contents. They also advanced their defense that their act

not take place on school property. On September 30, appel

and his mother met separately with Principal Ritchie, aft

larger meeting, and had the opportunity to add to what had

said.


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We add these observations. At no time has appel

indicated the presence of any evidence other than his own sa

that could shed light on his defense of ignorance of conte

Moreover, as we reflect on the giant-sized capital let

spelling out the title of the list on the cover, an

following listing names with, generally, a salacious one-

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commentary, we can be skeptical of the likelihood of

remaining oblivious to content after feeding into and retrie

from the copying machine multiple copies of this nine-

document. Given the nature of the defense, the nature of

evidence, the lack of any trial transcript, and the opportuni

given appellant to explain and support his position, we conc

that the disciplinarian was entitled to make a credibi

judgment.

We take note of an argument briefly advanced by appellan

that, because of the bar to interscholastic athletics and o

school activities, in addition to a ten-day suspension,

punishment falls outside of Goss and required a higher leve____

procedural formalities. We are not unmindful of the impac


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sanctions other than suspension and expulsion. As the Cour

Goss recognized, there may be "unusual situations, alt ____

involving only a short suspension, [where] something more

the rudimentary procedures will be required." 419 U.S. at

But the mere fact that other sanctions are added to a s

suspension does not trigger a requirement for a more formal

of procedures. In Goss itself one of the plaintiffs had not____

been suspended, but had been transferred to another school.

at 569 n.4. What must remain the focus is whether the stu

was given the opportunity to present his version of

occurred. In this case appellant has never suggested any res

in which he was denied this opportunity.


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We add one final word. We have said that appellant b

any risk stemming from an inadequate record. Our readin

appellees' Proposed Findings of Facts below suggests that

absence of a record may have deprived us of evidence that is

adverse than helpful to appellant. In any event, on this re

we conclude that he received all of the process that was due.


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We make short shrift of two other arguments. One is

Mass. Gen. L. ch. 71, 84 prohibits the suspension of a stu

for "marriage, pregnancy, parenthood or for conduct which is

connected with any school-sponsored activities. . . ." While

context suggests that the statute is dealing with matters o

than actions taken with and aimed toward other students, we

entirely satisfied with the district court's reasoning

appellant's "admitted off-premises conduct led to

distribution of the list on school premises." As for appella

objection to the judgment dismissing the claim against

members of the school committee, our due process holding ren

further statement unnecessary.

We do not, however, deem this such a frivolous appeal a

grant appellees' motion for attorney's fees.


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AFFIRMED. ________

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Documents

Donovan v. Ritchie, 1st Cir. (1995)