Eartha L. St. Ann, Etc. v. Vincent Palisi, Etc.

495 F.2d 423

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 24, 1974
• Docket: 73-2558
• Status: Published

Opinions

GEWIN, Circuit Judge:

On this appeal Mrs. Eartha St. Ann, individually and on behalf of her minor children, presents a substantive due process challenge to Orleans Parish School Board Regulation XIX ¹ which allows school children to be suspended for their parents’ misconduct. We vacate the district court’s order of dismissal insofar as it relates to the claims of the minor plaintiffs and remand.

The challenge presented is prompted by the following occurrences. On September 27, 1972, the appellant’s son, Maurice, received a three day suspension from his seventh grade classes at Martin Behrman Middle School because of excessive tardiness and absenteeism. The following day Mrs. St. Ann went to the school with her daughter, Lavida, in order to check her into school because she was tardy. While in the school office, she inquired about her son’s suspension. A disagreement ensued between Mrs. St. Ann and the assistant principal,' Mr. Achary. Mrs. St. Ann became enraged and struck Mr. Achary on the face with her fist in which she was holding a key chain. As a consequence Mrs. St. Ann was charged with battery and pled guilty in Orleans Municipal Court.

Because of their mother’s attack and pursuant to the aforementioned regulation, Mrs. St. Ann’s two children were suspended from school by notices dated September 29, 1972. The principal, Vincent Palisi, recommended that the suspension be for an indefinite period of time. The District Superintendent, Mr. Monie, scheduled a conference concerning the suspensions for October 10th, but due to her change of address Mrs. St. Ann did not receive notice of the conference. When she failed to appear on October 10th, Mr. Monie telephoned her in an attempt to schedule another conference, but Mrs. St. Ann advised him that the matter had been referred to her attorney. She subsequently filed suit on October 13th.

At the district court’s request a conference between the parties was held on October 25, 1972. The conference did not result in the children’s reinstatement at Martin Behrman, however, because Mrs. St. Ann refused the school officials’ demands for an apology. After this conference the two children were transferred officially to Karr School which they had been attending since October 17, four days after the suit was filed.

The district court concluded that “Regulation XIX does not abuse the discretion allowed to school authorities to formulate rules for the maintenance of discipline in the public schools, Accordingly, Regulation XIX was held not to violate the substantive due process guarantee of the fourteenth amendment and the complaint was dismissed with prejudice.

As the district court indicated, school principals must be given considerable freedom to achieve effective school administration, but courts should not hesitate to act when fundamental constitutional liberties are contravened.² Freedom from punishment in the. absence of personal guilt is a fundamental concept in the American scheme of justice. In order to intrude upon this fundamental liberty governments must satisfy a substantial burden of justification.³ Since the school officials have failed to meet this burden we must vacate the district court’s order of dismissal with prejudice with respect to the claims of the minor plaintiffs, and remand for proceedings consistent with this opinion.⁴

I

The due process clause of the fourteenth amendment protects from state encroachment those fundamental concepts of justice which lie at the base of our civil and political institutions.⁵ It is established beyond question that these substantive due process rights are not limited to those liberties specifically enumerated in the Bill of Rights.⁶ The rights of marital privacy⁷ and interstate travel⁸ are but two examples of protections which arise from a free society but are not explicitly mentioned in the Constitution. The appellant contends that predicating punishment only upon personal guilt is such a fundamental notion that it should be placed in the same category. The school’s policy which attributes a parent’s misconduct to other family members is asserted to be guilt by association wholly alien to American liberty.

Substantial Supreme Court authority supports the appellant’s contentions. Traditionally, under our system of justice punishment must be founded upon an individual’s act or omission, not from his status,⁹ political affiliation or domestic relationship. This principle has often been recognized by the Court in cases involving membership in subversive organizations. In Scales v. United States¹⁰ Justice Harlan emphasized the personal guilt requirement:

In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ., that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.¹¹

Further evidence of judicial solicitude for the concept of personal guilt appears in the Court’s acknowledgement that the indiscriminate classification of innocent with knowing activity must likewise fall as an impermissible assertion of arbitrary power.¹² Accordingly, a state cannot punish innocent membership in a group without regard for the accused’s knowledge of the nature of the group.¹³

Moreover, personal guilt has not been confined to problems involving political associations. In Levy v. Louisiana¹⁴ an equal protection violation was found when illegitimate children were denied an opportunity to pursue an action for the death of their mother under the Louisiana wrongful death statute. The illegitimate children were not to be deprived due to the indiscretion of their parents.¹⁵ Recently Louisiana’s workmen’s compensation laws which discriminated against illegitimate dependents were invalidated on similar 'grounds.¹⁶ Writing for the Court, Justice Powell stated:

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible laisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffee-tual — as well as unjust — way of deterring the parent.¹⁷

II

These Supreme Court pronouncements provide ample indication that personal guilt is a fundamental element in the American scheme of liberty. The appel-lees do not forcefully dispute this conclusion. Rather they assert, for a variety of reasons, that personal guilt considerations are inappropriate here.

Initially the appellees contend that substantive due process is not applicable unless a federal statutory or constitutional right is being violated. Furthermore, they claim that since San Antonio School District v. Rodriguez,¹⁸ it has been settled that the right to a public education is not a right guaranteed by the Constitution or by Congress. Therefore, appellees conclude that substantive due process cannot be applicable here because no right is being violated.

This syllogism is, of course, irrelevant and erroneous and must be rejected. The argument is irrelevant because the children do not complain that they were denied the constitutional right to an education, but that they were punished without being personally guilty. Thus a cardinal notion of liberty is involved and substantive due process is applicable. Secondly, the appellees are in error if they regard San Antonio as granting the states the power to arbitrarily deny individuals the right to a public education. Finding that education was not a right explicitly or implicitly protected by the Constitution was merely the Court’s analysis of why education is not regarded as fundamental for purposes of “strict scrutiny” under the equal protection clause.¹⁹

Appellees also argue that there has been no punishment without personal guilt present here because there has been, in fact no punishment. The suspension and transfer were allegedly not designed to punish the St. Ann children. According to school authorities these actions were taken in order to maintain discipline and decorum at the Behrman School. This argument, however, is belied by the language of Regulation XIX itself. It provides:

Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere, verbally or in writing, by a parent or guardian, the child or ward of such parent or guardian shall, by reason of such conduct, be liable to suspension or other punishment. (emphasis added)

Furthermore, this court has recognized that a lengthy suspension does constitute a serious punishment, the imposition of which must be preceded by a due process hearing.²⁰ Since the regulation provides for punishment and the St. Ann children were in fact suspended and transferred, the conclusion is inescapable that punishment resulted. The motives of the school officials are not controlling.

Ill

Having established a significant encroachment upon a basic element of due process, the state, in order to justify this encroachment, must satisfy a substantial burden.²¹ In order to assess the strength of the school officials’ interest one must examine the circumstances allegedly creating the need for such a regulation and the reasonableness of the methods used. The school officials argue that Regulation XIX facilitates preservation of discipline and decorum in the schools. We do not question either the necessity or authority of the Orleans Parish School Board in establishing regulations and rules for the maintenance of discipline and decorum in its schools. But the focus must be more narrow here. One must analyze the compelling reason for a regulation which punishes a child for the misconduct of the parent. It should be noted that the school officials commendably do not appear to argue that such a regulation will deter parental misconduct. Rather the argument appears to be that all children tend to ridicule a teacher who is insulted or attacked by a parent, and that if the children of the offending parent are removed from the school the ridicule will allegedly cease and discipline and teacher authority will be restored.

Initially the premise upon which this argument is based might be challenged; for an arbitrary exercise of the power to punish may do more to destroy respect for those in authority than to restore it. This is, however, essentially a legislative judgment, and if it were the only weakness in the appellees’ argument we would not substitute our judgment for that of a legislative body without further evidence.²² Nevertheless, there are further indications that Regulation XIX was less than essential. This court was informed upon oral argument that the Orleans Parish School Board has abolished Regulation XIX subsequent to the district court judgment.²³ The repeal itself supports the contention that the challenged regulation is not completely indispensable even if it may arguably serve to restore an offended teacher’s authority.

After an examination of the exigency for the questioned regulation, an inquiry should be made as to the existence of reasonable alternative means for fulfilling that need.²⁴ Non-students upon school property can be controlled or excluded by local regulations. Persistent violators may be enjoined or prosecuted under state law. Those who attack school officials are subject to state civil and criminal penalties just as Mrs. St. Ann was in the instant altercation. These are traditional and effective remedies for school officials who are disturbed by non-students. All these remedies place restraint on the offending individuals, not on the innocent members of the family. School officials can be relatively certain that news of such remedies will reach the school children, and perHaps the children will realize that the remedy did not arise from the arbitrary use of power but from the traditional precepts of justice in our society.

Since there are alternative paths to restoring teacher authority, and since Regulation XIX is not justifiably or reasonably necessary we must hold that the school officials have been unable to demonstrate a compelling governmental interest. Therefore, this inroad upon the theory of personal guilt cannot be sustained. Even if the challenged regulation were only to be tested against the “mere rationality” standard ²⁵ its constitutionality would be a matter of serious concern. The question would then become whether the regulation is a rational means of advancing a valid state interest.²⁶ The state may find it difficult to show by more than testimonial surmise that punishment of this type actually creates a better educational atmosphere. Furthermore, statute's that make parents liable for the misconduct of their children have been similarly criticized as irrational and violative of personal guilt.²⁷ At least in parent-child cases, however, the parent arguably has the power and duty to control his children. Clearly the children do not have the same opportunity.

Conclusion

Because the school officials cannot justify this infringement of a fundamental liberty guaranteed by the due process clause of the fourteenth amendment, we vacate the order of the district court dismissing the appellants’ case insofar as it relates to the claims of the minor plaintiffs and remand for proceedings consistent with this opinion. We only hold that the court committed error in dismissing the appellant’s complaint on behalf of the minor plaintiffs and make no suggestibn or intimation with respect to the value or lack of value of her claim for monetary damages on their behalf. That issue must be decided by the district court in the first instance.

Vacated and remanded.

1 . Orleans Parish School Board Regulation XIX provides:

A parent or guardian dissatisfied with the conduct of any teacher toward his child or ward shall first lay his complaint before the teacher, and, if not satisfied, may appeal to the principal. The principal shall hear such complaints only in the presence of the teacher concerned. If the matter is not satisfactorily resolved, the parent or guardian may appeal to the assistant superintendent in charge of the district, who shall hear the case only in the presence of the principal and teacher. Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere verbally or in writing, by a parent or guardian, the child or ward of such parent or guardia/n shall, by reason of such conduct, be liable to suspension or other punishment. Said suspension or other punishment shall not be made until after the parent or guardian has refused to make proper amends. (Emphasis added)

2 . Murray v. West Baton Rouge Parish School Board, 472 E.2d 438, 444 (5th Cir. 1973).

3 . Karr v. Schmidt, 460 F.2d 609, 615, n. 12 (5th Cir. 1972) (En Banc).

4 . Nothing we say should be construed as an approval of Mrs. St. Ann’s conduct. This opinion relates entirely to the rights of the minor plaintiffs she represents, her two children. Mrs. St. Ann has not asserted or demonstrated any error by the district court in dismissing her individual claim; therefore we affirm that portion of the order.

5 . Powell v. Alabama, 287 U.S. 45, 67, 53 S. Ct. 55, 63, 77 L.Ed. 158,169 (1932).

In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and [collective] conscience of our people” to determine whether a principle is “so rooted [there] * * * as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L.Ed. 674, 677 (1934).

Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 1686, 14 L.Ed.2d 510, 520 (1965) (Goldberg, J. concurring).

6 . Karr v. Schmidt, 460 F.2d 609, 614 (5th Cir. 1972) (En Banc).

7 . Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

8 . Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969).

9 . See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (State cannot make the “status” of narcotic addiction a criminal offense).

10 . 367 U.S. 203, 224, 225, 81 S.Ct. 1469, 1483, 1484, 6 L.Ed.2d 782, 799 (1961).

11 . The restraints imposed upon legislation by the due process clause of the fifth and four-' teenth amendments are generally considered the same. Heiner v. Donnan, 285 U.S. 312, 326, 52 S.Ct. 358, 361, 76 L.Ed. 772, 779 (1932). Even if different constructions of the provisions may be proper in appropriate eases there is no indication that such a distinction is relevant here.

12 . Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216, 222 (1952).

13 . Id. The concept has been further refined to require a showing of a specific intent to assist in achieving an organization’s unlawful ends. Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238,16 L.Ed.2d 321 (1966).

14 . 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).

15 . See also Glona v. American Guar. and L. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L. Ed.2d 441 (1968). But cf. Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971).

16 . Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) .

17 . Id. at 175, cited with approval Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, 591 (1973).

18 . 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) .

19 . Indeed the Court mentioned with approval several eases that have held the right to acquire useful knowledge a constitutionally protected liberty. Id. at 30.

20 . Black Students v. Williams, 470 F.2d 957 (5th Cir. 1972). Ten days was held to be a substantial period of suspension so as to require a due process hearing.

21 . Griswold v. Connecticut, 381 U.S. 479, 504, 85 S.Ct. 1678, 1692, 14 L.Ed.2d 510, 527 (1965) (White, J., concurring), quoting Bates v. City of Little Bock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480, 486 (1960); Karr v. Schmidt, 460 F.2d 609, 615, n. 12 (1972).

The United States Supreme Court has consistently distinguished between regulatory statutes in the economic sphere and those which are aimed at restricting more personal freedoms. In the case of economic regulation, the Court has stated that a “rational basis” for the legislation will suffice to meet the constitutional requisites of due process; on the other extreme, a clear and present danger to the public safety is required to justify a restriction on the first amendment right to free speech, (footnotes omitted).

Note, A Constitutional Caveat on the Vicarious Liability of Parents, 47 Notre Dame Lawyer 1321,1325 (1972).

22 . See p. 428 infra.

23 . The appellants seek an award of monetary damages as well as declaratory and injunctive relief. The repeal of Regulation XIX may indeed moot all claims except that for monetary damages. See Nat’l Lawyers Guild, Univ. of Texas Chapter v. Bd. of Regents of the Univ. of Texas Sys., 490 F.2d 97 (5th Cir. 1974) and the cases cited therein.

24 . An inquiry into reasonable alternative means to achieve a goal is an appropriate inquiry when analyzing a fourteenth amendment 1 due process challenge. In Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) the Court held that Connecticut could not create an irrebuttable presumption of nonresidence for college tuition purposes when the state had reasonable alternative means for determining residence. Id. at 452.

25 . See note 21 supra.

26 . E. g. Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1973).

27 . See Note, A Constitutional Caveat on the Vicarious Liability of Parents, 47 Notre Dame Lawyer 1321 (1972); cf. Hippard, The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea, 10 Hous.L. Rev. 1039 (1973).