HEANEY, Circuit Judge.
This cause is before us on remand from the Supreme Court. When first considered, we held that Peggy Strickland and Virginia Crain had been suspended from school in violation of their right to substantive due process. Because the school year had ended, we directed their records expunged and the cause remanded for a determination of damages against the individual School Board members. We declined to rule on the plaintiffs’ claim that they also had been denied their right to procedural due process. On appeal to the Supreme Court, the judgment of this Court was vacated and the cause remanded.1 We now consider the previously undecided issue whether the right of Peggy Strickland and Virginia Crain to procedural due process was violated when they were given lengthy suspensions from Mena High School, Mena, Arkansas. We hold that the plaintiffs’ right to procedural due process was violated and remand the cause to the District Court for further proceedings.
On February 18, 1972, the plaintiffs and a third girl, Jo Wall, admitted to the school principal, Mr. Waller, that they had violated school regulations by spiking the punch at an extracurricular home economics function.2 The plaintiffs were then in the tenth grade, and neither had previously been subjected to disciplinary action.3 Mr. Waller immediately suspended the girls from school and informed them that his decision was subject to ultimate disposition by the School Board. The girls were told that they could attend the Board meeting but were not given notice of its time or place. No notice was given the parents.4 This summary procedure was employed even though the plaintiffs were subject [746] to serious disciplinary action.5 Further, there is no evidence in the record to suggest that the school was threatened with disorder because of the plaintiffs’ actions.
The Board meeting was held the same evening. The members voted to suspend the girls for the balance of the semester. The Board’s decision to impose the maximum penalty upon the plaintiffs was prompted by a telephone report from Mr. Powell, a teacher at the school, that the third girl, Jo Wall, had been involved in an altercation at a basketball game that evening. Mr. Powell’s information was not based upon firsthand knowledge. The report was received by Superintendent Inlow who relayed it to the Board, omitting the name of the student involved. No attempt was made to verify the factual basis of the report. Based thereon, Mr. Waller and Mrs. Powell, also a teacher at the school, withdrew their recommendations of leniency and the Board voted.
The failure to inform the plaintiffs of the time and place of the Board meeting was violative of their right to procedural due process, for fundamental to that concept is adequate notice and the opportunity to be heard. Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725, 737 (1975); Williams v. Dade County School, 441 F.2d 299, 301 — 302 (5th Cir. 1971); Jones v. Snead, 431 F.2d 1115, 1117 (8th Cir. 1970). Here, the right of the plaintiffs to continue in school was determined ex parte.6 Yet, even in the context of minor disciplinary action, the student has the right to be afforded an opportunity to present his side of the case. Goss v. Lopez, supra, 419 U.S. at 581, 95 S.Ct. at 740, 42 L.Ed.2d at 739. This opportunity to be heard is no less important when, as here, there is not a serious dispute over the factual basis of the charge, for
* * * things are not always as they seem to be, and the student will at least have the opportunity to characterize his conduct and put it in what he deems the proper context.
Id., 419 U.S. at 584, 95 S.Ct. at 741, 42 L.Ed.2d at 740.
The defendants make no attempt to justify the procedures employed at the first Board meeting but contend that a second meeting, held March 2, 1972, cured the prior procedural defects. We recognized, in our first opinion, the potential force of this contention but declined to reach its merits. The March 2nd meeting was held promptly after the suspensions and the students and their parents were given notice of its time and place and afforded the opportunity to present evidence.
This second meeting was, however, no more than a ratification of the prior Board decision and did not cure the prior violations of due process. There is no evidence in the record that the Board members considered their prior decision open to reconsideration. Indeed, the Board had, prior to the meeting, prepared its written statement of facts which was presented to the girls and their parents. At the second meeting, the plaintiffs were confronted with a fait accom-pli.
Moreover, even assuming that the Board openly considered the evidence presented by the plaintiffs, the hearing was necessarily truncated and incomplete. The Board’s initial decision was based, at least in part, not on the infraction alleged but on the separate and un[747] substantiated charge that Jo Wall had been involved in a fight at a basketball game. The plaintiffs were not given notice of this second charge. Ignorant of the scope of the matter under consideration, the plaintiffs’ opportunity to present their side of the case was rendered meaningless. See Jones v. Snead, supra at 1117; Dixon v. Alabama State Board of Education, 294 F.2d 150, 159 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). They could not refute the factual basis of the Board’s decision by showing their innocence of the additional wrongdoing. The Board’s arbitrary decision that failed to distinguish between the conduct of the plaintiffs and Jo Wall went unchallenged. This arbitrary denial of the plaintiffs’ right to education is forbidden under the Due Process Clause. See Goss v. Lopez, supra, 419 U.S. at 574, 95 S.Ct. at 736, 42 L.Ed.2d at 735; Farrell v. Joel, 437 F.2d 160, 163 (2nd Cir. 1971); Dixon v. Alabama State Board of Education, supra at 158; Cf., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).
Free access — add to your briefcase to read the full text and ask questions with AI
HEANEY, Circuit Judge.
This cause is before us on remand from the Supreme Court. When first considered, we held that Peggy Strickland and Virginia Crain had been suspended from school in violation of their right to substantive due process. Because the school year had ended, we directed their records expunged and the cause remanded for a determination of damages against the individual School Board members. We declined to rule on the plaintiffs’ claim that they also had been denied their right to procedural due process. On appeal to the Supreme Court, the judgment of this Court was vacated and the cause remanded.1 We now consider the previously undecided issue whether the right of Peggy Strickland and Virginia Crain to procedural due process was violated when they were given lengthy suspensions from Mena High School, Mena, Arkansas. We hold that the plaintiffs’ right to procedural due process was violated and remand the cause to the District Court for further proceedings.
On February 18, 1972, the plaintiffs and a third girl, Jo Wall, admitted to the school principal, Mr. Waller, that they had violated school regulations by spiking the punch at an extracurricular home economics function.2 The plaintiffs were then in the tenth grade, and neither had previously been subjected to disciplinary action.3 Mr. Waller immediately suspended the girls from school and informed them that his decision was subject to ultimate disposition by the School Board. The girls were told that they could attend the Board meeting but were not given notice of its time or place. No notice was given the parents.4 This summary procedure was employed even though the plaintiffs were subject [746] to serious disciplinary action.5 Further, there is no evidence in the record to suggest that the school was threatened with disorder because of the plaintiffs’ actions.
The Board meeting was held the same evening. The members voted to suspend the girls for the balance of the semester. The Board’s decision to impose the maximum penalty upon the plaintiffs was prompted by a telephone report from Mr. Powell, a teacher at the school, that the third girl, Jo Wall, had been involved in an altercation at a basketball game that evening. Mr. Powell’s information was not based upon firsthand knowledge. The report was received by Superintendent Inlow who relayed it to the Board, omitting the name of the student involved. No attempt was made to verify the factual basis of the report. Based thereon, Mr. Waller and Mrs. Powell, also a teacher at the school, withdrew their recommendations of leniency and the Board voted.
The failure to inform the plaintiffs of the time and place of the Board meeting was violative of their right to procedural due process, for fundamental to that concept is adequate notice and the opportunity to be heard. Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725, 737 (1975); Williams v. Dade County School, 441 F.2d 299, 301 — 302 (5th Cir. 1971); Jones v. Snead, 431 F.2d 1115, 1117 (8th Cir. 1970). Here, the right of the plaintiffs to continue in school was determined ex parte.6 Yet, even in the context of minor disciplinary action, the student has the right to be afforded an opportunity to present his side of the case. Goss v. Lopez, supra, 419 U.S. at 581, 95 S.Ct. at 740, 42 L.Ed.2d at 739. This opportunity to be heard is no less important when, as here, there is not a serious dispute over the factual basis of the charge, for
* * * things are not always as they seem to be, and the student will at least have the opportunity to characterize his conduct and put it in what he deems the proper context.
Id., 419 U.S. at 584, 95 S.Ct. at 741, 42 L.Ed.2d at 740.
The defendants make no attempt to justify the procedures employed at the first Board meeting but contend that a second meeting, held March 2, 1972, cured the prior procedural defects. We recognized, in our first opinion, the potential force of this contention but declined to reach its merits. The March 2nd meeting was held promptly after the suspensions and the students and their parents were given notice of its time and place and afforded the opportunity to present evidence.
This second meeting was, however, no more than a ratification of the prior Board decision and did not cure the prior violations of due process. There is no evidence in the record that the Board members considered their prior decision open to reconsideration. Indeed, the Board had, prior to the meeting, prepared its written statement of facts which was presented to the girls and their parents. At the second meeting, the plaintiffs were confronted with a fait accom-pli.
Moreover, even assuming that the Board openly considered the evidence presented by the plaintiffs, the hearing was necessarily truncated and incomplete. The Board’s initial decision was based, at least in part, not on the infraction alleged but on the separate and un[747] substantiated charge that Jo Wall had been involved in a fight at a basketball game. The plaintiffs were not given notice of this second charge. Ignorant of the scope of the matter under consideration, the plaintiffs’ opportunity to present their side of the case was rendered meaningless. See Jones v. Snead, supra at 1117; Dixon v. Alabama State Board of Education, 294 F.2d 150, 159 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961). They could not refute the factual basis of the Board’s decision by showing their innocence of the additional wrongdoing. The Board’s arbitrary decision that failed to distinguish between the conduct of the plaintiffs and Jo Wall went unchallenged. This arbitrary denial of the plaintiffs’ right to education is forbidden under the Due Process Clause. See Goss v. Lopez, supra, 419 U.S. at 574, 95 S.Ct. at 736, 42 L.Ed.2d at 735; Farrell v. Joel, 437 F.2d 160, 163 (2nd Cir. 1971); Dixon v. Alabama State Board of Education, supra at 158; Cf., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).
The plaintiffs are entitled to have their records cleared and to prove their claim of damages against the individual members of the School Board. The School Board members are, of course, immune from damages if their actions were taken in good faith, as defined by the Supreme Court in Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214, 225 (1975). On the basis of the record before us, we cannot say that the defense is proven as a matter of law. Accordingly, that factual issue must be determined by the District Court on the record made at the prior trial.
The cause is remanded to the District Court for further proceedings consistent with this opinion and the decision of the Supreme Court.