Nevares v. San Marcos Cons Ind

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 16, 1997
• Docket: 96-50420
• Status: Published

Opinion

REVISED IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50420 _____________________

DAN NEVARES, Individually and as next friend for Timothy Nevares, a minor,

Plaintiff-Appellee,

versus

SAN MARCOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellant,

TEXAS EDUCATION AGENCY,

Intervenor-Appellant.

_______________________________________________________

Appeal from the United States District Court for the Western District of Texas _______________________________________________________ April 11, 1997

Before REAVLEY, KING and BARKSDALE, Circuit Judges.

REAVLEY, Circuit Judge:

The district court has declared a Texas statute

unconstitutional because it does not expressly mandate that the

school afford a proper hearing for a student charged with off-

campus conduct punishable as a felony prior to transferring the

student to an alternative education program. The student was not

transferred to the alternative program, because his father sought immediate judicial intervention. We find no constitutional

deprivation actual or threatened, and dismiss the case for lack

of standing.

High school student Timothy Nevares sued the San Marcos

Independent School District challenging his transfer to the

Rebound alternative education program and the constitutionality

of Texas Educ. Code §37.006(a). The district court held that the

threatened removal from regular classes and assignment to the

Rebound program was a form of punishment that impacted the

student’s protected property and liberty interests. We disagree.

Timothy Nevares, a 15 year old tenth grade student, was

detained for aggravated assault on January 23, 1996 by the San

Marcos police. He reportedly threw stones at a car and injured

one of the passengers. On February 12, 1996, the school received

the police report of Nevares’ detention and the assistant

principal took Nevares from class to question him. Nevares

refused to make any statement at this meeting other than to tell

the school authorities to contact his father and lawyer, saying

they were getting the matter dismissed.

Thereafter, Nevares’ father called the school principal,

admitted that the act in question had occurred but maintained

that his son’s behavior had been in self-defense, and requested a

meeting to discuss the situation before the school took any

action. The principal explained that according to school

regulations, once there was reason to believe an aggravated

assault had been committed, Timothy would be reassigned to the

2 alternative education program. When the principal confirmed with

the juvenile authorities that the aggravated assault charge on

Nevares was still pending, he decided to transfer Timothy to the

Rebound program. Nevares promptly sued.

At the threshold we must decide whether any constitutional

injury is presented and whether Nevares has standing to sue for a

declaratory judgment on the unconstitutionality of the statute or

for a permanent injunction against the school district. Federal

courts have no jurisdiction under Article III § 2 of the

Constitution unless a case or controversy is presented by a party

with standing to litigate, and this requires a showing of “an

invasion of a legally protected interest” that is “concrete and

particularized” and “actual or imminent.” Arizonans for Official

English v. Arizona.1

The Supreme Court has held that the suspension from school

without some kind of notice and hearing may violate property and

liberty interests.2 The state statute to which the Court pointed

in Goss gave students the entitlement to a public education.

Timothy Nevares is not being denied access to public education,

not even temporarily. He was only to be transferred from one

school program to another program with stricter discipline. This

alternative program is maintained by Texas schools for those

students whose violations of the law or the school’s code of

1 117 S.Ct. 1055, 1067 (1997)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) and Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). 2 Goss v. Lopez, 419 U.S. 565 (1975).

3 conduct fall short of triggering suspension or expulsion, but who

for reasons of safety and order must be removed from the regular

classroom.3

Today it is generally recognized that students are being

deprived of their education by lack of discipline in the

schools.4 Not only does disorder interfere with learning school

studies, it also defeats the charge to “inculcate the habits and

manners of civility.” Veronia School District 479 v. Acton.5

We have previously held that no protected property interest

is implicated in a school’s denial to offer a student a

particular curriculum.6 In Arundar, a high school student had

claimed that her property right to education was implicated when

she was denied enrollment in certain courses of study. We

affirmed the district court’s dismissal of the case and held that

although state law could create a protected interest in a

particular kind of education, for example by mandating special

education for exceptional children, absent such a basis in state

law, there was no cause of action. This court has also rejected

arguments that there is any protected interest in the separate

components of the educational process, such as participation in

3 Tex. Educ. Code §§ 37.001 - 37.011. 4 Anne Proffitt Dupre, Should Students Have Constitutional Rights? Keeping Order in Public Schools, 65 Geo. Wash. L. Rev. 49 (1996). 5 115 S.Ct. 2386, 2392 (1995)(quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986)). 6 Arundar v. DeKalb Cty. School Dist., 620 F.2d 493 (5th Cir. 1980).

4 interscholastic athletics.7 The Tenth Circuit has held that a

student does not have a constitutional right to particular

incidents of education such as sports or advanced placement

classes or attending a particular school.8 A transfer to a

different school for disciplinary reasons has also been held not

to support the court’s jurisdiction on constitutional grounds.9

We recognize the importance of trust and confidence between

students and school administrators. For that reason the student

and parents must be treated fairly and given the opportunity to

explain why anticipated assignments may not be warranted. But

that is for Texas and the local schools to do. We would not aid

matters by relegating the dispute to federal litigation. And

because the United States Constitution has not been offended in

the present dispute, we retire from it.

JUDGMENT REVERSED. CASE DISMISSED.

7 Walsh v. Louisiana High Sch. Athletic Ass’n, 616 F.2d 152 (5th Cir. 1980). 8 Seamons v. Snow, 84 F.3d 1226, 1234-1235 (10th Cir. 1996). 9 Zamora v. Pomeroy, 639 F.2d 662, 669-670 (10th Cir. 1981).