Brewer v. Austin Independent School District

779 F.2d 260, 29 Educ. L. Rep. 56
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 30, 1985
DocketNo. 84-1995
StatusPublished
Cited by10 cases

This text of 779 F.2d 260 (Brewer v. Austin Independent School District) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewer v. Austin Independent School District, 779 F.2d 260, 29 Educ. L. Rep. 56 (5th Cir. 1985).

Opinion

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Dennis Brewer, who admitted possessing marijuana in school, contends that he did not receive due process at the hearings in which the length of his suspension from high school was determined. We find that Brewer received the process due him under the fourteenth amendment and affirm the district court’s summary judgment in favor of the school district defendants.

I

Dennis Brewer was a sixteen-year-old student at David Crockett High School in the Austin Independent School District on November 29, 1982, when a teacher told Assistant Principal Johnny Brown that she had just been informed by a student that Brewer was dealing drugs in her class. Brown called Brewer out of the classroom and confronted him with the allegation. Brewer denied the charge, and no contraband was found when his locker was searched. Brown took Brewer to the school’s administrative offices and asked to see the contents of his pockets. Brewer removed a bottle of marijuana and a pipe hose from his pants pocket, admitting they were his. Brown immediately suspended Brewer for three days, and notified Brewer and his mother, Marilou Dreyfus, of the punishment.

A Campus Review Board hearing was scheduled for December 3, 1982. ■ Ms. Dreyfus received telephone notice of the hearing from Brown, along with two written notices, both of which included copies of the AISD disciplinary policy. The first notice indicated that a “Category II” hearing would be held, which suggested a maximum punishment of a one semester suspension. The second notice and telephone call informed Brewer and his mother that he would be facing a “Category III” hearing, with the possibility of a year-long suspension.

On December 3, 1982, the Campus Review Board held its hearing. Brewer freely admitted possession of the marijuana and pipe hose, but he denied selling drugs and asked for the names of the buyers and the circumstances surrounding any alleged sale. Three statements from students, accusing Brewer of selling and smoking marijuana on campus, were read to Brewer at the hearing, although the students themselves were not identified. The Campus Review Board — Brown, two faculty members, and a counselor — voted unanimously to recommend that Brewer be suspended for the remainder of the school year. On December 16, 1982, AISD Superintendent Ellis accepted the Board’s recommendation.

Brewer appealed the decision, and another hearing was held on January 12, 1983, [262]*262before Assistant Superintendent David Duty. Brewer again admitted possession of marijuana and drug paraphernalia while at school, but denied smoking or selling marijuana on campus. Duty, noting the disparity between Brewer’s punishment and that imposed in three similar eases, called Acting Principal Bush after the hearing to find out about the variation. Mrs. Bush replied: “We’re 99% sure Dennis was dealing.... We actually only really learned about the selling after we had scheduled the Campus Review Board — so we didn’t want to make a formal charge out of it.” Duty recommended that the suspension for the remainder of the school year be affirmed, and his recommendation was adopted by Superintendent Ellis.

Brewer’s suspension was terminated in March, 1983, and he returned to school at the W.R. Robbins Secondary School on March 8, 1983. Allowing for vacation time, Brewer’s actual suspension was approximately eight weeks long.

Brewer sued under 42 U.S.C. § 1983, alleging both that he was denied due process of law in the suspension hearings and that the school’s search of his person violated his fourth and fourteenth amendment right to be free from unreasonable search and seizure. Brewer sought damages, a judgment declaring AISD’s disciplinary procedure unconstitutional, and a permanent injunction enjoining the use of the existing procedures.

The district court dismissed the claims for declaratory and injunctive relief, on the ground that Brewer was no longer living in the AISD school district and therefore lacked the concrete, adverse interest necessary to maintain those claims. AISD was granted summary judgment on the due process and search and seizure claims. On appeal, Brewer argues only that the district court erred in holding that his due process rights were not violated in the suspension hearings.

II

Brewer asserts that the Campus Review Board denied him due process by considering evidence that he was selling drugs and smoking marijuana on campus, evidence he had no opportunity to rebut. He also argues that Assistant Principal Brown imper-missibly acted as both a witness and a judge at the Campus Review Board hearing. Brewer contends further that the appellate hearing violated the due process clause because Duty did not make an independent determination of the appropriate punishment and because Duty relied on evidence that Brewer had no opportunity to rebut.

AISD replies that Brewer was suspended solely for “possession of marijuana and drug paraphernalia,” which he freely admitted at both hearings; that consideration of evidence about such activities as drug dealing was permissible in determining the length of the suspension; and that long-term suspension for drug possession alone is authorized by AISD’s policy. Finally, AISD argues that Brewer’s hypothesis that he was suspended for dealing or use of drugs, rather than for possession alone, ignores the fact that the suspension lasted only eight weeks.

Ill

We first address Brewer’s claim that the procedures followed by the Campus Review Board failed to provide due process. Brewer argues that specific allegations of drug dealing and drug use were considered in both hearings and that he had no opportunity to rebut the allegations or to confront and cross-examine his accusers.

A student charged with misconduct may not be suspended from a public school without the “minimum procedures” required by the due process clause. Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975). In the context of school suspension hearings, we have cautioned that “the process due may vary in particular cases depending upon the circumstances,” Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1081 (5th Cir.1984) (citation omitted), and that “[t]he standards of procedural due process are not wooden [263]*263absolutes. The sufficiency of procedures must be judged in the light of the parties, the subject matter and the circumstances involved.” Id. (quoting Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir.1970)). Cf. Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214 (1975).

Because Brewer admitted possession of marijuana and drug paraphernalia and because the punishment he received for the offense was within the limits authorized by AISD’s policy,1 the validity of the suspension itself is beyond question. See McClain v. Lafayette County Bd. of Educ., 673 F.2d 106 (5th Cir.1982).

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Dennis Brewer v. Austin Independent School District
779 F.2d 260 (Fifth Circuit, 1985)

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Bluebook (online)
779 F.2d 260, 29 Educ. L. Rep. 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewer-v-austin-independent-school-district-ca5-1985.