USCA1 Opinion

United States Court of Appeals

No. 95-1421

CHRISTOPHER DONOVAN, ET AL.,

Plaintiffs, Appellants,

v.

JOHN M. RITCHIE, PRINCIPAL,

Defendants, Appellees.

____________________

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.

____________________

October 24, 1995

COFFIN, Senior Circuit Judge.

This

appeal requires us

to

decide whether the procedural due process requirements of Goss v.

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

applied to a high school student before his suspension.

Appellant,

suit

under both

provisions against

schools,

and the

a senior

at

federal and

the school

Winchester High

state statutes

School, brought

and constitutional

principal, the superintendent

school committee,

compensatory and punitive damages,

seeking injunctive

of

relief,

and attorney's fees and costs

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

extracurricular activities.

At

evidence

the conclusion of a

and argument

focused solely

been afforded procedural due

judgment

five-day bench trial,

on whether

in which the

appellant had

process, the district court granted

as a matter of law for the school committee members and

found that the process

given appellant was adequate.

appeals from these dispositions

but has not furnished us

transcript of the trial proceedings.

The

case revolves

large capital

Apart

Appellant

about a

with a

We affirm.

nine-page document

letters, the scatological title,

bearing, in

"The Shit List."

from a cover page and a concluding page containing general

remarks of a boorish

nature, the document zeroed in on

some 140

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

The district court referred to the list as containing

"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 of
each student.

-2-

crude descriptions

fewer

than a

their

appearance or

juniors,

seniors

dozen, were

more than

were

of character and/or behavior.

treated to

social

characterized by

insulting as to appearance,

insulting comments

conduct.

thirty in

The freshmen,

But

each group,

epithets

about

the sophomores

and more

that

and

than sixty

were not

merely

but suggestive, often explicitly so,

of sexual capacity, proclivity, and promiscuity.

The sequence of events

leading to appellant's suspension is

the following.

students

On September

18, 1994, a

Sunday, some

fifteen

were gathered in the home of

one of them when the list

was

created by someone still unknown.

On Thursday appellant and

two

other boys made copies of

barrel.

was

the list and put

They were delivered to the school soon after.

discovered

by

faculty member

the

Ritchie announced to

the school

degrading, and urged

students to provide

perpetrators.

and

two

them in a trash

that the list

On the following Monday,

others

came

to

next

Ritchie's

After it

day, Principal

was harmful

and

information as to

the

September 26, appellant

office

and

denied

any

they

had

involvement.

The

next

photocopied the

day

they

came

list but denied

since the photocopying

back

and

said

that

knowing the contents

and that,

was outside of school premises, they were

not

said

subject to school

that

Principal

they

discipline.

would

The

probably face

principal disagreed and

suspension.

Meanwhile,

Ritchie met with other students and compiled a list of

fifteen students who were

said to be present at

the creation of

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the list.

On Thursday, September

fifteen, announcing a

meeting the

29, a letter was

next day for

sent to the

them and

their

parents.

At the September 30 meeting, Principal Ritchie said that the

list was a violation of

school

meeting,

the school's rules, as set forth

handbook, against

harassment and

Ritchie met with appellant

was indefinitely suspended.

suspension, but said that

obscenity.

and his mother

in the

After the

and said he

He did not specify the length of the

information would soon be forthcoming.

In a letter requested by the principal and received the following

Monday,

October 3,

appellant

wrote apologizing

for this

"bad

mistake" and saying:

My involvement in the list is such; I had the list

with 2 other boys and we then proceeded to take

the list put it in a trash bag and put it in the barrel

Two days later, Ritchie met with the school's "Crisis Team,"

consisting of

twelve staff

mother, specifying

participation

wrote appellant's

"the consequences for your son, Christopher's

to

the

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

They

were

in

members, and then

suspension

the

chain

for ten

of

days,

events

leading

and exclusion

from

up

any school

social events and interscholastic athletics.

Principal

Student Handbook

for

an

opening

end to

Ritchie identified

the

following parts

as being violated: (1) the

name calling,

statement proscribing

harassment,

-4-

the

cover, which called

"put downs;"

"harassment of

section proscribing violent behavior,

of

any kind;"

(2) an

(3) a

vandalism, or violation of

students' civil

events,

rights on

carrying

the

school premises or

sanction

of

indefinite

expulsion; and (4) a section barring abusive or

or materials.

appellant's

Possible

case,

at school-related

suspension

obscene language

reinstatement to athletic

lacrosse)

and

removal of

or

the

programs (in

letter

from

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

individuals and the school.

In a subsequent, undated

complained of his

letter to the principal, appellant

"excessive punishment" and added

to his prior

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

Appeals

to

committee, in

the

superintendent

and later

which presentations were made

to

the

school

by both appellant's

attorney and the principal, were unsuccessful.

Discussion
__________

We

must

first

sanction imposed

suspension.

former,

appellant

on

threshold

appellant was

an

question:

whether

expulsion or

the

ten-day

Appellant's brief assumes throughout that it was the

citing the

and his

Appellant then cites

N.E.

face a

612, 613

fact that

mother

than he

Jones v.
_____

(1912), for

Principal Ritchie

initially told

was indefinitely

Fitchburg, 211 Mass.

the proposition

that

suspended.

66, 68,

97

a suspension,

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

amount[s]

to

invokes the

rights,

a permanent

exclusion. .

authorities that

including the

."

Accordingly, he

specify a considerable

assistance of

counsel

effect

and the

panoply of

right to

-5-

examine

witnesses at

a hearing.

See,
___

e.g., Dixon
___
_____

v. Alabama
_______

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

Unfortunately

expulsion label

for

appellant, the

is of no

avail.

As

Principal Ritchie, after informing

he was

the district court

found,

of the suspension

in the mail

Five days later, after conferring with the

Team," he sent his

details of

he

of the

appellant and his mother that

as to the length

"shortly thereafter."

basis

repetition

indefinitely suspended, told them that they would receive

the information

"Crisis

mere

letter of October

the ten-day suspension.

Appellant

5, containing the

cannot attack the

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

has not furnished

F.2d 58, 60

(1st Cir.

us with a

transcript. Real v.
____

1987) ("If [the

inconclusive, it is the appellant

Hogan, 828
_____

existing record]

proves

who must bear the brunt of

an

insufficient record on appeal.")

In any event, however, we would

be unlikely to find "clear error" in the finding.

Cf. Roland M.
__ _________

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

We

are,

therefore,

suspension at issue

succinctly

the

him

in Goss v.
____

given

and,

oral or

if he

In

kind

of

temporary

that case the

Court

procedural prerequisites: "that

written

denies

evidence the authorities have and

side of the story."

with the

Lopez.
_____

summarized the three

student be

against

dealing

notice of

them,

charges

explanation of

the

an opportunity to present

his

419 U.S. at 581.

an

the

The Court added, "In

the

great majority of cases the disciplinarian may informally discuss

the

alleged misconduct

with the

-6-

student

minutes after

it has

occurred."

Id. at 582.
___

version of the

told

what he

accusation

informal

facts at

is accused

is."

Id.
___

In order for the student "to explain his

this discussion, [he

of

doing and

"Requiring

that

give-and-take between student

should] first

what the

there be

basis of

at

be

the

least an

and disciplinarian," the

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

to

characterize his

conduct and

put it

in

what he

deems the

proper context." Id. at 584.

It

is clear,

notice.

The

suspension

took

first

of all,

principal

warned

effect that

the

that

him

suspension,

elaborating

referred to

on

was obliged to read

letter

noted,

harassment,

and

briefly

but

"put downs"

days

he had

the

before the

acknowledged

bases

School Handbook,

and understand.

clearly

adequate

The principal's letter of

and specifying

the High

student

several

conduct

likely would result in his suspension.

October 5,

appellant had

to

the

which every

Its cover, as the

identified

as actions

for

name-calling,

be resisted.

The

principal also referred to the "Opening Remarks" of the Handbook,

prohibiting "harassment of any

kind."

defined "harassment" as "conduct,

This introductory section

behavior, or comments that are

personally offensive, degrading, or

threatening to others,"

and

gave such examples as "sexually suggestive remarks, . . . and the

display

or circulation

of

written materials

. .

that

are

degrading to any individual. . . ."

Thirdly,

fighting,

the

principal

violent behavior,

cited

or

-7-

to

regulation

"violation of

other

barring

students'

civil rights"

for an

on school premises, the violation

indefinite suspension and possibly

challenges the relevance of

case.

He also

argues

of which called

expulsion.

Appellant

this regulation to the facts

that more

formal

of his

procedures regarding

notice, counsel, and presentation of witnesses are required under

this regulation.

from

the sanction

This would seem

imposed,

to be true but

a temporary

it is obvious

suspension, that

this

regulation was not a ground for decision.

The principal's fourth basis

barring

for punishment was regulations

the use of either obscene materials or language that was

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

Apart from the attack noted above to the third ground listed

by

the principal, appellant makes only two arguments.

The first

is that a passage

in "Opening Remarks" urges sensitivity

to the

feelings of others and prompt communication between a student who

feels aggrieved

and an

offender so that

may be brought to an end quickly.

more severe treatment

not

only

to treat

inconsistent

detailing a

but also

to

ignore other

section

parts

as internally

of the

Handbook

Consequences" for violations

disciplinary code that extend from verbal warning

to

expulsion.

of

abusive or obscene language.

Appellant's second thrust is against the charges

that "Notwithstanding

foregoing,

"strictly prohibited" is

Opening Remarks

twelve point "Range of

of the student

the

To read this as preempting any

of what has been

the

objectionable behavior

His brief

makes the assertion

that Ritchie found no

evidence to support

Ritchie

cites

this

regulation

without

ever

-8-

explaining to Donovan

how it was violated."

of "The Shit List" itself,

This, in the light

defies rational justification even in

the context of strenuous advocacy.

By

as

to

the same token, there can be no rational question raised

the basis

precisely what

of the list; he

for the

suspension.

Indeed,

appellant knew

the basis was -- the preparation and distribution

acknowledged his part in making

photocopies and

merely asserts

that he did not know the contents.

This leads us

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

student to have presented his version of the facts.

We conclude

from the

record that

appellant had,

advantage of, multiple opportunities to present his view

occurred.

Ritchie

On September

contents.

not

and admitted

They also advanced

take place on school

and his

mother met

larger meeting, and

said.

of what

26, he and two others met with Principal

and denied any involvement.

another meeting

and took

On September

27, they had

photocopying, but no

knowledge of

their defense that

their act did

property.

separately with

On

September 30, appellant

Principal Ritchie,

had the opportunity to add to

after a

what had been

We

indicated

that

add

these

observations.

no

time has

appellant

the presence of any evidence other than his own say-so

could shed light on

Moreover,

as

we

reflect

spelling

out

the

title

following

At

listing names

his defense of

on the

of the

with,

ignorance of contents.

giant-sized

list

on

generally, a

-9-

the

capital

letters

cover,

and the

salacious one-line

commentary,

we

can

be

skeptical

remaining oblivious to content

from

the

document.

copying

machine

of

the

of

one

after feeding into and retrieving

multiple copies

Given the nature

likelihood

of the defense,

of

this

nine-page

the nature of

the

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

given appellant

that

the

to explain and support his position, we conclude

disciplinarian

was

entitled to

make

credibility

judgment.

We take note of an argument briefly advanced by appellant --

that, because

school

of the bar to interscholastic

activities,

in addition

punishment falls outside of

procedural

formalities.

to

athletics and other

ten-day suspension,

Goss and required a higher

We are

not unmindful of

the

level of

the impact of

sanctions other than suspension

Goss
____

recognized,

involving only

there

a short

may be

rudimentary procedures will

But

the mere

been

was

n.4.

given

occurred.

situations,

although

are

more than

U.S. at 584.

added to

a requirement for a more

a short

formal set

In Goss itself one of the plaintiffs had not only

suspended, but had been transferred

at 569

Court in

be required." 419

other sanctions

suspension does not trigger

of procedures.

"unusual

As the

suspension, [where] something

the

fact that

and expulsion.

What must

the

to another school. Id.

remain the focus is

opportunity

to

present

his

whether the student

version

of

what

In this case appellant has never suggested any respect

in which he was denied this opportunity.

-10-

We add one final

any

risk stemming

appellees'

word.

from an

Proposed Findings

We

have said that appellant

inadequate record.

of Facts

Our

below suggests

bears

reading of

that the

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

adverse than helpful to appellant.

In any event, on this record

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

We make

Mass. Gen.

short shrift of two

L. ch. 71,

other arguments.

One is that

84 prohibits the suspension of a student

for "marriage, pregnancy, parenthood or

for conduct which is not

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

context suggests that

the statute is dealing

than actions taken with

entirely satisfied

appellant's

with

"admitted

members

to

the

with matters other

and aimed toward other students,

the

district

off-premises

court's

judgment

dismissing the

we are

reasoning

conduct

distribution of the list on school premises."

objection

While the

led

to

that

the

As for appellant's

claim

against

the

of the school committee, our due process holding renders

further statement unnecessary.

We do not, however, deem this

such a frivolous appeal as to

grant appellees' motion for attorney's fees.

AFFIRMED.
________

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