GOSS v. LOPEZ
Nine students at two high schools and one junior high school in Columbus, Ohio, were given 10-day suspensions from school. The school principals did not hold hearings for the affected students before ordering the suspensions, and Ohio law did not require them to do so. The principals' actions were challenged, and a federal court found that the students' rights had been violated. The case was then appealed to the Supreme Court.
Did the imposition of the suspensions without preliminary hearings violate the students' Due Process rights guaranteed by the Fourteenth Amendment?
Legal provision: Due Process
Yes. In a 5-to-4 decision, the Court held that because Ohio had chosen to extend the right to an education to its citizens, it could not withdraw that right "on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct ha[d] occurred." The Court held that Ohio was constrained to recognize students' entitlements to education as property interests protected by the Due Process Clause that could not be taken away without minimum procedures required by the Clause. The Court found that students facing suspension should at a minimum be given notice and afforded some kind of hearing.
Argument of Thomas A. Bustin
Chief Justice Warren E. Burger: We will hear arguments next in 73-898, Goss against Lopez.
Mr. Bustin, you may proceed whenever you're ready.
Mr. Thomas A. Bustin: Mr. Chief Justice and may it please the Court.
This case originates as in a direct appeal from the decision of a three-judge district court in Ohio.
During the early months of 1971, in the Columbus School District in Columbus, Ohio, several of the schools located in that district experienced a series of internal student disruptions and the type involving fighting among students, blocking of hallways and stairways, questions surrounding the setting of several fires in one of the school building.
One of the schools had to be closed for a period of time trying to bring order back, open defiance of the type characterized when a principal was speaking to one of the assembled classes, one of the students got up and told the principal that they were all done listening to him that he would now listen to them and they were going to tell him how it was going to be run.
From that pattern of internal disruption, there occurred a series of temporary suspensions from anywhere from five to ten days arising under a statute Section 3313.66 of the Ohio Revised Code, which allowed a principal to temporarily suspend for a period of one to ten days without holding a formal hearing.
The statute required the principal or administrative official to send a notification to the parents and to the School Department of the fact that the suspension.
The statute also contained a provision which in the case of expulsion, required that the parents where expulsion was going to take place, could appeal that action to the Board of Education and the question of whether or not the child should be expelled would be heard by the Columbus Board of Education.
Following this pattern of temporary suspensions, a 1983 Civil Rights Action was instituted in which the section I've just discussed was challenged as being unconstitutional in violation of the Fourteenth Amendment, Due Process Clause and it was also alleged that it was vague and overbroad in its provisions.
Following the conclusion of a trial, a three-judge district court concluded in its opinion that the statutory section and the regulations implementing the statute in the school were, in fact, unconstitutional as being violative of the Due Process Clause.
The court concluded that the statute was not vague or overbroad in its provisions.
In Ohio, in the structuring of the school system, the Ohio constitution directs that the legislature is to use public funds to establish a common system of schools and also gives the legislature power in the area of organization, administration and control of that particular school system that is set up.
In this particular statute, I mentioned is one of that series of statutory scheme which sets up and controls the common system of schools in Ohio.
It's appellants position in this particular case in analyzing what's involved and in discussing the interest of the school.
What’s really involved in this whole case is not really the temporary suspensions themselves, but really a question of what power the states and local school districts will have to structure their particular school systems.
And when I use the term “structure,” I mean, make decisions with respect to not only how the process will go on, who will be the teachers, how it will be managed and what form of academic discipline will be utilized in the particular system.
It’s our position that this is really the important question here before this Court.
In Ohio, academic discipline is viewed by the Ohio courts anyway, as being part and parcel of the educational process, that has been so held in the Lauper (ph) case which is cited in the briefs.
It's our position that the legislature in this particular case, given the type of area concerned that they were involved with, i.e., the educational process, wherein you're faced with entirely different types of interests that you find in other commons areas and I say that from this standpoint.
When you're trying to structure a school system, a very important question is, the type of relationship that the state and carry it down further, the local school districts would like to see established in their particular district.
I think the --
Chief Justice Warren E. Burger: By that you mean between the teachers and the students, I assume?
Mr. Thomas A. Bustin: Yes.
I mean, the type of relationship that will exist in the ongoing process between the teacher, a student and a principal, while the student is --
Chief Justice Warren E. Burger: Members of the school board, for example, don't have anything directly to do with the students day by day, do they?
Mr. Thomas A. Bustin: Not on a day-by-day basis, but I think, this all works into the very process of formulating what type of academic discipline is going to take place in the particular school.
Viewed in that context, I think, the states must retain a certain degree of discretion, if you will, to decide for themselves, whether or not they will have academic discipline and what the form of that academic discipline will be.
It's our position that based on a much similar analogy as was contained in the Linwood case that a legislature that legislates as it has done in this particular case, which is in a restrictive sense, restricting the authority of the principal really, from having a -- what I would class as a carte blanche authority to discipline, cutting down his authority to a period of a one to ten days without requiring a hearing, while at the same time requiring one or utilizing one where a situation is in expulsion that a legislature does act within the framework of the type of discretionary authority.
I think, this Court has talked about in repeated cases where it has been mentioned that local school authorities should retain a great deal of latitude and discretion in the daily management of their particular internal affairs of the school districts.
Justice Byron R. White: Did the district court issue an injunction hearing?
Mr. Thomas A. Bustin: No injunction was issued in this particular case.
The district court in its opinion found the statute and the regulations unconstitutional and directed the Board of Education and --
Justice Byron R. White: And you're appealing?
Mr. Thomas A. Bustin: And we're appealing.
Justice Byron R. White: Do we have jurisdiction up here?
Mr. Thomas A. Bustin: I believe, you do.
Of course, made a --
Justice Byron R. White: Did it have a jurisdiction limit?
Mr. Thomas A. Bustin: Yes, we did.
Justice Potter Stewart: In this case but there wasn't any -- my brother White certainly raise this --
Justice Byron R. White: Was an injunction denied?
Mr. Thomas A. Bustin: No injunction --
Justice Harry A. Blackmun: But here -- but you won?
Mr. Thomas A. Bustin: Is not --
Justice Harry A. Blackmun: You won on the injunction issue?
Mr. Thomas A. Bustin: No, there was really no orderly hearing on an injunction at any point.
Justice Harry A. Blackmun: Well, I know but --
Mr. Thomas A. Bustin: The Court left that kind of as I believe in --
Justice Harry A. Blackmun: But our jurisdiction, isn't this a direct appeal?
Mr. Thomas A. Bustin: It is a direct appeal under the statute.
Justice Harry A. Blackmun: Does that jurisdiction depend on the grant or denial of an injunction in the lower court?
Mr. Thomas A. Bustin: I don't think so.
Justice Harry A. Blackmun: I think, it does.
Chief Justice Warren E. Burger: Explicit in the statute.
Justice William H. Rehnquist: Was an injunction paid for?
Chief Justice Warren E. Burger: An injunction, both a temporary and permanent injunction was paid --
Justice Harry A. Blackmun: That was denied, that injunction was denied but you're the winner on that issue?
Mr. Thomas A. Bustin: Well, yeah.
There is no mention of it in the opinion that the Court handed down all the Court --
Justice Harry A. Blackmun: You won and you opposed the injunction?
Mr. Thomas A. Bustin: We opposed the injunction from the --
Justice Harry A. Blackmun: And you won on, on the injunction part of it, you lost on the invalidity?
Mr. Thomas A. Bustin: If the Court says -- I won from the standpoint that the Court did not grant one.
Justice Harry A. Blackmun: Well, is there an injunction requiring both the cancellation of the record -- of the suspension records that it requires?
Mr. Thomas A. Bustin: The Court required us to expunge from the records of --
Justice Harry A. Blackmun: Well, was that an injunction?
Mr. Thomas A. Bustin: Yes.
Justice Harry A. Blackmun: You lost on that, didn't you?
Mr. Thomas A. Bustin: Yes, that's what I was getting to.
Apart from finding the statute invalid, the Court directed us to expunge from the records of the pupils involved in this particular class action.
Justice Potter Stewart: It's an injunction, however it was labeled, isn't it?
Mr. Thomas A. Bustin: Well, what I was trying to say was that the Court did not specifically label it an injunction that they --
Justice Potter Stewart: But it --
Mr. Thomas A. Bustin: -- did require us to expunge from the records of these people involved in this class action.
Justice Byron R. White: Did the Court require the school to adopt this system that they outlined?
Mr. Thomas A. Bustin: Yes, they set up the system that they found would be a proper type of system to utilize where a temporary suspension was going to take place.
Justice Byron R. White: Well, a little while ago you stated like I thought that no injunction was issued, that no injunction was denied, now I take it you do feel that there was at least an injunction under whatever label, whatever guides it possessed so that you’re changing the position a little bit you have to, don’t you, in order to begin --?
Mr. Thomas A. Bustin: Well, I'm saying there's not a label attached to, but the Court did mandate us in a sense to expunge from the records of these people involved -- any reference to a suspension arising out of this period of time, which gave rise to litigation in that sense that you need an injunction.
Justice Byron R. White: You view it as the injunction I think?
Mr. Thomas A. Bustin: Pardon?
Justice Byron R. White: I say I think you have to take this position to be here?
Mr. Thomas A. Bustin: I wholeheartedly agree that in that sense I view it a as mandate to the Board of Education and the principles involved.
Justice William J. Brennan: Well, at page 19 of the judgment before us, next to the last paragraph is, it is ordered that the defendants delete all reference to the suspension and disciplinary transfers of plaintiffs from the records of the Columbus Public School, is that an injunction?
Mr. Thomas A. Bustin: I would view that as a -- an injunctive type --
Justice William J. Brennan: For the purposes of our appellate jurisdiction.
Mr. Thomas A. Bustin: For the purposes of your jurisdiction.
Chief Justice Warren E. Burger: And by inference, the court has restricted the freedom of the school district to handle suspensions the way they formerly handled them, by imposing affirmative requirements?
Mr. Thomas A. Bustin: Yes Mr. Chief Justice.
The district court set up a formula, if you will, of how we were supposed to handle temporary suspension, saying in part that we could temporarily suspend without a hearing for a period of three days, but after that we had a procedure that we had to go through.
So in that sense they did restrict, I think, place a restriction on this relationship that I'm talking about that I think the Columbus School District sought to foster in its system and that is one of the discipline being part and parcel of the educational process.
Justice Lewis F. Powell: Mr. Bustin, would you tell us a little bit about the purpose for which these records are maintained, are they made available, for example, to some future potential employer here or they maintain only for internal use of the school system?
Mr. Thomas A. Bustin: In the record of this cause, in the deposition of the Superintendent of schools it was taken, it was explained that these records are not made generally available to everyone and that when an employer, for example, calls in and wants information about the student, he is given basic information pertaining to whether his grades, in whether or not he graduated from the school, that the records are not open for ready examination.
It is also explained in that testimony of the Superintendent that even where -- that the focus of their information they try to provide for his graduation and grades and also test where they’ve taken psychological tests and things of that nature.
Justice Lewis F. Powell: Suppose a pupil had been suspended, say, for three days when he was a freshman in high school and he later applied to a college and his high school transcript was sent to the college, would that three-day suspension appear on the record?
Mr. Thomas A. Bustin: In this particular record, looking at the transcripts, it could show, yes, if that whole format, folder, if you will, that they utilized was sent to the college.
Justice Lewis F. Powell: Do you known what they do send as a matter of fact?
Mr. Thomas A. Bustin: As I believe the Superintendent's testimony was more in the nature of trying to provide grades and grades from schooling process and all grades in the psychological test, that type of information, and as other is requested.
Justice Lewis F. Powell: Does that appear in the appendix?
Mr. Thomas A. Bustin: Yes, it appears in the Appendix, in the testimony of Superintendent Ellis.
Justice Lewis F. Powell: Right.
Justice Thurgood Marshall: Would that be binding on the new Superintendent?
Or is this a (Inaudible) of regulation or justice policy?
Mr. Thomas A. Bustin: This was the policy of the Columbus School District.
Justice Thurgood Marshall: I thought the clause was of that Superintendent?
Mr. Thomas A. Bustin: No it was not --
Justice Thurgood Marshall: That's the way I read it.
Mr. Thomas A. Bustin: No, it was not the policy -- explained as being the policy of that Superintendent, it was a policy of the district.
He was explaining --
Justice Thurgood Marshall: Where is it?
Mr. Thomas A. Bustin: -- what they did in the district.
Justice Thurgood Marshall: Where is it in the rules and regulations of the district?
Mr. Thomas A. Bustin: It is not written down as such.
Justice Thurgood Marshall: Is there any prohibition in any document that prevents anybody from circulating that record with material on it?
Mr. Thomas A. Bustin: The regulations explained to the principals and the teachers, the process was that the records would not be circulated, would not be open for a ready examination.
Justice Thurgood Marshall: You used the word “regulation,” where is that regulation?
Mr. Thomas A. Bustin: It is in the -- the only regulation I can point to is the -- in the administrative guide so to speak when they talk about it --
Justice Thurgood Marshall: Where is that in the record?
Mr. Thomas A. Bustin: When they talk in the -- I believe, that's in Volume 3 around page 280, it's where this administrative guide is discussed, that and the Superintendent's testimony.
Justice Thurgood Marshall: Where is it that says that it shall not be circulated?
Mr. Thomas A. Bustin: I can’t say that this record -- I can’t say that this record candidly says in writing that it will not be circulated.
All I can say is that the principal explained that each -- at the time, at the beginning of the school year and in the operation of the school, each principal and other administrative official has directed, not to release this type of information.
That’s the type of testimony that appears in the record.
Justice Thurgood Marshall: That's just his -- that applies as long as he's there.
He could -- could he change tomorrow morning, but this as I take it --
Mr. Thomas A. Bustin: I think, the Board -- no, I think the Columbus Board of Education would have to do that.
Justice Thurgood Marshall: Well, where is the Columbus Board of Education's regulation, that says that?
Mr. Thomas A. Bustin: It's not in writing, in this particular record.
Justice Thurgood Marshall: Well, that's -- is there anything other than writing that's going to help us?
Is there anything you can point to, in writing, that says that this material will not be made available at any time?
Mr. Thomas A. Bustin: No, Your Honor, not in the posture of the record as it appears before this Court.
However, I fail to see the significance of the record showing the three-day suspension, if you will, we view the three-day suspension as being part and parcel of the education process.
It's really no different when the school official is looking at any particular person's record, if you will, and they see on that record, the fact that the person has flunked mathematics.
I think that the college or employer looking at that particular record is going to be as much influenced by the grade that that individual has received in mathematics, for example, as he is by what --
Justice Thurgood Marshall: What experience do you have in evaluating school records?
Mr. Thomas A. Bustin: I have no individual experience, I think.
Justice Thurgood Marshall: I didn't think so.
Chief Justice Warren E. Burger: Is there anything in the Court's opinion that says yeh or neh about what maybe done with the transcript of the student’s record now under the holding of the three-judge court?
Mr. Thomas A. Bustin: No, Your Honor, the three-judge court, all they did was required us or mandate us to expunge these references to the disciplinary transfers and suspensions from their records.
Chief Justice Warren E. Burger: But the school may --
Mr. Thomas A. Bustin: They went no further than that.
Chief Justice Warren E. Burger: The school may suspend for three-days without a hearing in the future.
Mr. Thomas A. Bustin: That's right.
Chief Justice Warren E. Burger: And if that is placed on the record, it will go in whatever manner it has previously gone, is that a fair assumption?
Mr. Thomas A. Bustin: If as Mr. Justice Marshall said, the record is made readily available to any employer and he does, in fact, see that, yes, it would be there.
Chief Justice Warren E. Burger: In other words, this opinion didn't touch -- the opinion of the three-judge court didn't touch on that issue one way or the other?
Mr. Thomas A. Bustin: No, Your Honor.
Justice Potter Stewart: Mr. Bustin, under the existing statute, what if a principal wanted to suspend a student for 15 days?
Mr. Thomas A. Bustin: Under the statute, before it was declared unconstitutional, he would not have that authority.
In other words --
Justice Potter Stewart: He has no authority apparently, it's an odd statute that apparently he has no authority, with or without a hearing, to suspend a student longer than ten days, isn't that it?
Mr. Thomas A. Bustin: Well, as I view the statute --
Justice Potter Stewart: He is --
Mr. Thomas A. Bustin: --as a restrictive statute and has been so viewed in Ohio as a restrictive statute.
His authority to act as principal could not be an action beyond one to ten days for the case --.
Justice Potter Stewart: Can he suspend a student for 11 days with or without a hearing, apparently?
Mr. Thomas A. Bustin: That as I read the statute and interpret it, yes.
If he did so, he would be acting like classified ultra vires, outside of his authority and the Superintendent testifies it.
Justice Potter Stewart: Had no choice except between a suspension of ten days or less and expulsion?
Mr. Thomas A. Bustin: Under that statute.
Justice Potter Stewart: Well, and you think there is any power other than the statute?
Mr. Thomas A. Bustin: No, I view the statute as a restrictive statute which I think the legislature sought to draw down his authority.
There is another statute which talks about the management and control of the schools in Section 33, I think, it's 4720, they're both cited in the brief, but it talks in very general terms and I think here the legislature sought to further restrict that authority so that he could --
Justice Potter Stewart: And as perhaps you know the next case, as I remember at least the suspension was until the end of the school year and that just couldn't -- there would be no power to do that on Ohio?
Or would that be expulsion?
Is expulsion defined anywhere?
Mr. Thomas A. Bustin: The expulsion is not defined as a definition in the code that sets up the common school system.
Justice Potter Stewart: I suppose, you could have expulsion for 20 days, could you?
Mr. Thomas A. Bustin: I could be -- I think a legislature could categorize expulsion.
Justice Potter Stewart: It hasn't defined expulsion at all, has it?
Mr. Thomas A. Bustin: Not that I can find in this particular--
Justice Potter Stewart: How do you understand the meaning of the word “expulsion,” does it mean, permanently out of school, forever?
Mr. Thomas A. Bustin: Well, even in the sense of the Ohio situation, I don't even think they view expulsion as being permanently out of the school or forever.
Justice Potter Stewart: What does it mean?
Mr. Thomas A. Bustin: It's the way the statute reads, it's a removal from the school for the remainder of the school term which may even be 30 days.
Justice Potter Stewart: Has there been any laws on this, any limitations on this expulsion?
Mr. Thomas A. Bustin: I've been able to find -- I've searched hard to find any Ohio cases which have directly taken up this particular statute and the closest thing I can come to in any sense was a case in State Fleetwood in 20 Ohio appellate Second, but that was not to the constitutional nature of the statute itself, it just has not been treated in that context by Ohio Courts.
Chief Justice Warren E. Burger: Would it be correct to or incorrect to say that the difference between the three-judge federal court and the Ohio statute is the difference between ten days and three-days on this suspension, is there --?
Mr. Thomas A. Bustin: They seem to be going off as I view it, the only way I can view it is the difference between three and ten days that they seem to view three day as okay, but a period of ten days as violating Due Process.
Justice Byron R. White: Do you make the same argument for a hundred?
Mr. Thomas A. Bustin: For a hundred?
Under my analysis -- I'm sorry, Your Honor.
Justice Byron R. White: A hundred days, a hundred day suspension?
Mr. Thomas A. Bustin: Under my analysis, in this particular case as I've set forth in my brief, while expulsion is not involved in this case, I would have to say that a right of liberty of property would not be involved where the person --
Justice Byron R. White: But it would be in an expulsion?
Mr. Thomas A. Bustin: No, Your Honor, I do not believe so, under my analysis.
Justice Byron R. White: So it would not be involved in a hundred days either?
Mr. Thomas A. Bustin: No, Your Honor.
Justice Byron R. White: You feel that you have to protect that?
Mr. Thomas A. Bustin: I feel that the position in light of the Roth case, for example, and also the Cafeteria Workers case follows that the student who is removed from the process, as you used for a hundred days, is in no worse position than the non-tenure teacher who is only told that he is non-renewed, but where this district does not say to every other district in Ohio, for example, don't bother with this child, stops and closes every door to him and I see student in your hundred-day situation being in much the same posture.
Justice Byron R. White: You wouldn't think that -- well, in your face as then I gather, this just wouldn't be a question of a pre-suspension hearing, it would be a hearing at all?
You would think that he could be terminated, expelled, terminated for a hundred or a thousand days without any hearing at any time before or action?
Mr. Thomas A. Bustin: As I've analyzed the constitution in this sense, I believe that I would have to answer a yes to that.
Justice Byron R. White: And then what if you're wrong about that?
There has to be a hearing at some time?
Mr. Thomas A. Bustin: And it seems to me that --
Justice Byron R. White: What about this case?
Mr. Thomas A. Bustin: It seems to me that we're down to in that posture drawing lines and I raised any question of where will we stop and I can come back to my situation of -- do we go to a hearing process where a person is receiving a grade or something of that similar nature.
Justice Byron R. White: Right.
Chief Justice Warren E. Burger: Well, if you were trying to defend a 100-day statute, you would have some additional problems of showing that that did not totally disrupt the student's school progress for that year, would you not?
I’m not talking about practical problems, whether they are constitutional or not, is it not a question?
Mr. Thomas A. Bustin: Yes and I might have --
Chief Justice Warren E. Burger: Suspension for a hundred days is certainly going to pretty well cut him off for the school year unless some substitute teaching is provided, is that not so?
Mr. Thomas A. Bustin: Yes, in my --
Chief Justice Warren E. Burger: But ten days you say is -- the difference between ten days and three days is merely a matter of judgment in drawing a line.
Mr. Thomas A. Bustin: I believe, it fits in to the doctrine of the Ohio discipline inculcating self-disciplinary respect for a 30 days as part and parcel of the process and I think a legislature that does this, a legislature as it has done here with this statute, it doesn't seem to--
Chief Justice Warren E. Burger: You seem to make that argument, one argument along these lines negatively by pointing out as I recall it that all of these students did just as well or better after they came back to school, is that correct, as I read your brief?
Mr. Thomas A. Bustin: As I read the record and have analyzed the record, I believe that the record does not disclose that the particular suspensions involved in this case really had any effect on the outcome of their proceeding through the process.
For example, one of the --
Justice Thurgood Marshall: Why make them go a 180 days, why not let them go 170?
Mr. Thomas A. Bustin: I believe that should be a question for the state legislature to decide whether they want to?
Justice Thurgood Marshall: Have the children wasted their time for those ten days?
Mr. Thomas A. Bustin: No, they could very well use their time in some other pursuit, for example, they might have received training in a vocational endeavor or maybe working with somebody in the outside.
It may not be waste, I think.
That's up to the individual how he utilizes that additional time.
Chief Justice Warren E. Burger: Or perhaps their parents might require them to stay home and study?
Mr. Thomas A. Bustin: They could very well do that.
Chief Justice Warren E. Burger: Those are things we can't really speculate about, are they?
Mr. Thomas A. Bustin: No, I don't think you can engage in that kind of speculation.
Justice Thurgood Marshall: Could you live with three-day rule?
Mr. Thomas A. Bustin: No, Your Honor, I cannot.
I believe that --
Justice Thurgood Marshall: How would it disrupt the school system with the three-day as compared to ten-day?
Mr. Thomas A. Bustin: I believe it disrupts the very --
Justice Thurgood Marshall: I understand you to say, the only argument is between three and ten?
Mr. Thomas A. Bustin: I believe it disrupts the very process I've been talking about and the relationship I've been talking about, that the school system seeks to foster.
I believe that you say that a three-day rule and go beyond that, there must be a hearing, but right away you've been injected into the relationship at least a quasi-judicial type of adversary relationship.
Justice Thurgood Marshall: Well, doesn't the present rule say that if you give them 11 days you have to give them here?
Mr. Thomas A. Bustin: No it doesn't.
Justice Thurgood Marshall: What does it say?
Mr. Thomas A. Bustin: It doesn't -- it says you can't go beyond the ten days.
Justice William H. Rehnquist: Well, all that statute here --
Justice Thurgood Marshall: Without a hearing --
Justice William H. Rehnquist: All that statute says, Mr. Bustin, the Superintendent can suspend for more than days, it doesn't limit the School Board's power, does it?
Mr. Thomas A. Bustin: No, it doesn't limit, the School Board in Ohio is a political subdivision, if you will.
Justice Potter Stewart: Well, then maybe --
Mr. Thomas A. Bustin: It hasn't taken the power away from them.
Justice Potter Stewart: Maybe a suspension beyond ten days becomes an expulsion, I'm talking now about the very last sentence of the statute that says that no pupil shall be suspended or expelled from any school beyond the current semester, which implies at least as a negative inference that an expulsion could be for a period beyond ten days, but never beyond the end of the current semester?
Mr. Thomas A. Bustin: I think, to me an expulsion characterizes something where the district or school says to pupil, in essence, we want to remove you from the school on a permanent type basis.
Justice Potter Stewart: Well, except the last sentence of the statute certainly doesn't imply a permanent basis?
Mr. Thomas A. Bustin: No.
Justice Potter Stewart: It's maximum beyond the current semester?
Justice Thurgood Marshall: Well, you can't do it in more than ten days.
Mr. Thomas A. Bustin: No, not more than ten days.
Justice Thurgood Marshall: And the seven days is so important to you, and I'm asking why?
Mr. Thomas A. Bustin: I think it's important to the system in the relationship that the district tries to establish in that system.
It is important that the --
Justice Thurgood Marshall: But specifically, why?
Is the seven days so necessary in order to maintain discipline?
Mr. Thomas A. Bustin: Specifically, because I think the --
Justice Thurgood Marshall: You like it?
Mr. Thomas A. Bustin: Pardon?
Justice Thurgood Marshall: You like it?
Mr. Thomas A. Bustin: Not because I like it, I think it's because the legislature wants to have the principal and his relationship with the student, have a broad range of authority here -- limited authority protect not only --
Justice Thurgood Marshall: What about five --
Mr. Thomas A. Bustin: -- few individuals but the entire school as a whole.
Justice Thurgood Marshall: What about five days and you don't have to end up nine?
Mr. Thomas A. Bustin: I don't think that -- I think, it's this type of line drawing that we're engaging in gets into this type of problem.
I think that's a line that should be drawn by the legislative body if they still have any kind of discretionary authority.
Chief Justice Warren E. Burger: Mr. Bustin, in the number of the states, they have statutes which limit the right to strike except after a ten days notice, they call it colloquially at least the cooling off period, but in your view that there's some cooling off process involved in the ten days that would not be provided in a three-day period?
Mr. Thomas A. Bustin: Well, it --
Chief Justice Warren E. Burger: Or at least that that was the judgment of the legislature?
Mr. Thomas A. Bustin: You could be looking at it in the face of this record and say that in a sense, because here the principal that is portrayed in the testimony of the principal Fulton, when he handed out the suspension, he was trying to restore order so that the vast bulk of students could get on with the process of day-to-day learning.
So, I think, you could characterize it in a sense as a cooling off period.
Also from this sense, the principal tries to, during his period and is portrayed in his testimony also, meet with the student and his parents and discuss the student's entire school record with the emphasis on trying to find out what the student’s problem is and how they can get that student progressing again.
So in that sense I would -- you could characterize it as a cooling off period.
Justice Potter Stewart: Well, where in this opinion do you find the three-day business?
Where do you find the three-day business, Mr. Bustin? Everybody seems to be pretty fair and I assume it is, but I -- or perhaps in the opinions in the appendix to the jurisdictional statement, is it not?
Mr. Thomas A. Bustin: It gets down to, I believe here, Your Honor, gets down around starting on page from 60 over to 64 --
Chief Justice Warren E. Burger: Where?
Mr. Thomas A. Bustin: In the back, yeah, and on page 63, it gets into in more detail.
Chief Justice Warren E. Burger: Well I think Mr. Justice Blackmun had questioned you, he was trying to profound you counsel?
Justice Harry A. Blackmun: I think, the time is passing Mr. Chief Justice, we'll let it go.
Justice Potter Stewart: Well, I have one further question, if I may, assuming there is a three-day holding here, there was no cross-petition first, there was no cross-appeal.
Would the appellees in this case be free to argue that there should be a hearing of some kind before any suspension even for a one day or two day in your view?
Mr. Thomas A. Bustin: Well, I view this decision, entire decision as being open to review by this Court, I think they probably could argue that the District Court was wrong in drawing its line to three days and possibly should be one or even less than that.
Justice Potter Stewart: Thank you.
Justice Byron R. White: Could I acknowledge, people with (Inaudible) that they can -- has events to new rules and regulations promulgated in there and are they effective?
Mr. Thomas A. Bustin: There is a new procedure that the -- let's say a new procedure, new guidelines, if you will, that the Board sat down -- it's contained on page 25 of the jurisdictional statement.
Justice Byron R. White: Are they effective now?
Mr. Thomas A. Bustin: They are in effect.
When I say guidelines --
Justice Byron R. White: But it's --
Mr. Thomas A. Bustin: -- it's an operational procedure that the principals are told how they will operate under the particular statute.
Justice Byron R. White: Were those that passed the muster under the district court’s opinion?
Mr. Thomas A. Bustin: I'm not at all sure.
The district court in its opinion sloughed them off.
Justice Byron R. White: So you just don't know whether they would have satisfied the district court or not?
Mr. Thomas A. Bustin: I can't really say it, it sloughed them off in a footnote as --
Chief Justice Warren E. Burger: Thank you.
Argument of Peter D. Roos
Mr. Peter D. Roos: Mr. Chief Justice, may it please the Court.
I think that a misunderstanding of the lower court's opinion has developed in the questioning of Mr. Bustin.
I think that a close reading of that opinion would show that what the court did or say that a prior hearing is required whenever there is a suspension, except when there’s an emergency situation.
And when there's an emergency situation, the school district can suspend a student for up to 72 hours, but must provide a subsequent hearing.
This was the position that was urged by us to the lower court and we believe that this is gist of the decision of the lower court and this, in fact, is the common accommodation and plans that are voluntarily adopted.
Justice Potter Stewart: In other words, you don't read the opinion to say that a suspension without a hearing for three days is constitutionally valid?
Mr. Peter D. Roos: That is correct, Your Honor, that the Court --
Justice Potter Stewart: I think the --
Mr. Peter D. Roos: -- did not engage in the line drawing that seemed to appear in Mr. Bustin's argument.
It was really rather a prior hearing as required but there maybe circumstances when there is intense disruption of the school or when a student is a danger to himself or to others, that would justify doing away with the prior hearing, but in that instance, a hearing must be provided within 72 hours thereafter.
Chief Justice Warren E. Burger: What that means that the discretion in the first instance rests with the principal under this opinion for 72 hours?
Mr. Peter D. Roos: That is correct, Your Honor.
Chief Justice Warren E. Burger: What if we said -- decide to slice it a little differently and say six days, not ten days as the statute required and not three as the district court, but six, would you think there’d be any basis for that?
Mr. Peter D. Roos: Your Honor, as I understand the lower court's opinion and this would be certainly the position that we would urge.
It is not in saying that three days is -- that a principal has absolute discretion to suspend a student for three days, what it is saying is that there maybe emergency situations which may justify doing away with the prior hearing.
It is not saying that a principal has an absolute carte blanche to throw a kid out or --
Chief Justice Warren E. Burger: Who is going to determine that when and with what consequences?
Mr. Peter D. Roos: Your Honor, obviously, there has to be great reliance upon a good faith of school administrators and then there's at some point or other, it does boil down to them.
I might add however that various other school systems that have voluntarily adopted plans have build in mechanisms for assuring that this isn't a mass of loophole, for example, we're informed that in Seattle, for example, that after subsequent hearing, there is a hearing ultimately.
At the subsequent hearing, one of the issues might be, whether the emergency suspension procedure was properly utilized.
There are institutional mechanisms for assuring that this loophole, if you will, isn't -- just doesn't open the gates to absolute discretion, but ultimately, some confidence has to be accorded to the principal in the belief that they will not make this emergency situation, a giant loophole and call every suspension an emergency.
Justice William J. Brennan: Mr. Roos, if the procedures, guidelines, whatever you call it at pages 25 to 29, the factor as I understand it as so it says here July 10, 1973 had been operative at the time this case arose, would you be here?
Mr. Peter D. Roos: I think, we would Your Honor.
I don't think that --
Justice William J. Brennan: How can you be for sure --
Mr. Peter D. Roos: Your Honor, excuse me.
There was testimony by the chief witness for the district, Mr. Goss as to how they function and if you give me one -- that testimony, Your Honor, starts at 164 and runs 2171, it does cover more than how those newly adopted procedures do operate, but there is testimony concerning --
Justice William J. Brennan: And the gist of it is?
Mr. Peter D. Roos: The gist of it is, Your Honor, they really didn't know what they meant and the gist of it is that they were leaving everything up to the principal to determine whether there would be any sort of meaningful protections.
Justice William J. Brennan: How do they base them, I mean they do seem to require prior notice and hearing, don't they?
Mr. Peter D. Roos: Might I read just to give you a sense of how these things were adopted, question, under this plan was --
Chief Justice Warren E. Burger: From where are you reading?
Mr. Peter D. Roos: Excuse me, from the Appendix of 171, Your Honor.
Justice William J. Brennan: Volume 2?
Mr. Peter D. Roos: Volume 2.
Question, under this plan Mr. Goss, do you contemplate that the pupil will have the opportunity except for his own statements to the principal to call any witnesses in his own behalf?
Answer, that would be the judgment of the principal.
Question, that's up to the principal and not the student, is that it?
Answer, that's right.
So these guidelines really are nothing much more than guidelines, they are not well caught out procedures designed to provide any degree of procedural protection for the student.
Justice Potter Stewart: And I'm sorry, I missed the earlier part, these guidelines are something that's developed since the decision in this case?
Mr. Peter D. Roos: They were developed a week before the decision, Your Honor, and presented to the Court on the day of the trial.
Justice Lewis F. Powell: Okay.
Mr. Roos, I'm not quite clear yet as to your position, do I understand you say that any suspension however brief requires a prior hearing absent an emergency?
Mr. Peter D. Roos: That is correct, Your Honor.
Justice Lewis F. Powell: So the teacher, the principal, for example, could not send a student home for the last hour of a day if the student had misbehaved or been disruptive?
Mr. Peter D. Roos: Your Honor, we might make something for the rest of the day, it's a severance from the school for the rest of the day, might be something different from -- it might be in the nature, in fact, of a cooling off period.
We would assume that that would be what it would be--
Chief Justice Warren E. Burger: But would it --
Mr. Peter D. Roos: -- so that it might be something different from a severance for several days.
Justice Potter Stewart: It used to work the other day, either way, you have to stay a little longer at school?
Mr. Peter D. Roos: Well, Your Honor, we're not certain in --
Chief Justice Warren E. Burger: I'm interested in your slicing that day off.
You say a suspension for one hour without any notice and for any reason is appropriate, and obviously, then that -- my next question and I don't want to ask it would be two hours, three hours and until we --
Mr. Peter D. Roos: Your Honor, --
Chief Justice Warren E. Burger: -- get your point.
Mr. Peter D. Roos: It's generally our position that a severance from the school system, putting the child out of the school system as opposed to punishments that might happen internally within the school system or the one-hour, two-hour, end-of-the-day sort of thing, something that is as final and as abrupt as saying you shall not come back tomorrow or for ten days, has the potential of creating serious disruptions in the educational progress of the student and also has some of the stigmatizing consequences that were alluded to before.
There certainly is some area of line drawing, and I cannot deny that Your Honor, but I think that -- I think that the key is severance and -- I think the key is severance, Your Honor.
Justice William H. Rehnquist: Mr. Roos, do you claim it's a denial of a property interest or a liberty interest that your clients were going to suffer?
Mr. Peter D. Roos: Your Honor, it's our position that both the property interest and a liberty interest are implicated. Under this Court’s rulings in Roth, Sindermann, Bell versus Burson, the statutory entitlement cases, this Court has held that a well-established statutory entitlement creates a property interest.
We would submit that this Court has probably never considered such a historically or in a present such a well-established statutory entitlement as the right to a student to attend or to receive public instruction in Ohio.
Justice William H. Rehnquist: Do you say a student has a property right then to continue in the school system?
Mr. Peter D. Roos: Oh, I think that under this Court's decision, Your Honor, I don't see how there can be any question of that.
Justice William H. Rehnquist: Well, why didn't the teacher in Roth then have a property interest to continue in as a teacher?
Mr. Peter D. Roos: As I understand it Your Honor, in Roth, the sense was if the teacher had had tenure under state law, that there had, in fact been a statutory entitlement to continue in employment or something other than a statutory entitlement and understanding as in Sindermann, then there would have been a protected interest and if there had been an invasion, which obviously a fire and would be --
Justice William H. Rehnquist: Does Ohio law give the student the same sort of a tenure year right to attend school as the statute did in Roth for tenured teachers?
Mr. Peter D. Roos: Well, I don't think that there’s any question Your Honor.
If I can refer to my brief, we pretty well set out the various constitutional and legislative provisions?
Justice Thurgood Marshall: Don't you have the compulsory attendance law in Ohio?
Mr. Peter D. Roos: We have a compulsory attendance law Your Honor, but further than that, there’s a constitutional --
Justice Potter Stewart: But then?
Mr. Peter D. Roos: -- there's a constitutional provision that requires that the -- that public schools be established.
There are several independent legislative requirements that the local community set up schools, that free public schooling be available for children between certain ages.
It's a pervasive, a very pervasive scheme of entitlements.
Justice Lewis F. Powell: Mr. Roos, under your submission, is the age of the child or the grade of the pupil relevant in any situation or putting it differently, as I recall, the ages of these appellees range let's say from 13 to 19, does the age make any difference?
Does it make any difference whether one is a senior in high school or say a sixth grader?
Mr. Peter D. Roos: In terms of the right to a prior hearing --
Justice Lewis F. Powell: Yes.
Mr. Peter D. Roos: -- or the right to hearing Your Honor?
Justice Lewis F. Powell: Yes, yes.
Mr. Peter D. Roos: I don't think so.
A child who is in elementary school is just as needful of the protections as is a child who is in a high school, we're talking about severance from the school system.
As a practical matter Your Honor, if I might, I had quite a deal experiencing in analyzing statistics and what not on suspensions and expulsions, as a practical matter, they very rarely occur at the elementary school level, it's primarily at the junior high and the high school level, but they could occur and under our analysis, there would be no particular reason that we could think of for distinguishing between an elementary school system and a high school system.
Justice Lewis F. Powell: May I ask you this, is it your view that or does the record support the view that a one-day suspension of a sixth grade child would adversely affect the performance of that child in that grade?
Mr. Peter D. Roos: Your Honor, the record does support that it could adversely affect the child.
Justice Lewis F. Powell: That's somebody’s speculation or is there any demonstration of it?
Mr. Peter D. Roos: There's ample uncontroverted testimony of the sorts of harms that can and do occur in a suspension.
Justice Lewis F. Powell: For one day?
Mr. Peter D. Roos: Any suspension Your Honor.
I would draw this Court's attention especially to the testimony of Dr. Ree which starts at page 171, it is not long, it runs to 182.
Justice Lewis F. Powell: Volume two?
Mr. Peter D. Roos: Yes, volume two of the Appendix.
The harms that he describes, and which are un-controverted, all could occur or are substantially likely to occur to any child irrespective of age and irrespective of length.
Now it is true, clearly that the longer an exclusion, the likelihood of harm or the magnitude of the harm may increase.
We would not argue that that is not the case, but we do argue and argue forcefully that even a short-term suspension can have stigmatizing consequences, can have educational consequences and what not.
Chief Justice Warren E. Burger: And of course, aren't there a good many areas in which peremptory action is allowed which involved stigmatizing and no prior hearing and no notice is given if there is probable cause?
Mr. Peter D. Roos: There maybe some situations of that sort Your Honor.
We would submit that there is --
Justice Potter Stewart: Arrests, for example?
Mr. Peter D. Roos: Arrest, I know that this court has mentioned.
There is no reason whatsoever for not holding a prior hearing in a school suspension case.
In an arrest situation where an emergency may occur, there is obviously need for a quick action.
Chief Justice Warren E. Burger: Very often people are arrested in situations where there is no emergency.
Mr. Peter D. Roos: Well, that is so Your Honor.
Chief Justice Warren E. Burger: Sometimes with a warrant and sometimes without a warrant.
Mr. Peter D. Roos: I suppose that --
Chief Justice Warren E. Burger: There's no notice in advance, is there?
Mr. Peter D. Roos: I suppose that that often is the case Your Honor, but we would submit that that there's no reason whatsoever, there is no reason advanced by our opponents and there’s no reason that we can conjure up for not holding some form of protection to ensure that the sorts of harms that we have set out in our brief and which are well-documented in the record will not occur.
Chief Justice Warren E. Burger: What about the adverse effect on the other students and their rights to a quiet classroom, to orderly procedures, to --
Mr. Peter D. Roos: No --
Chief Justice Warren E. Burger: -- all the things that teachers and parents desire?
Mr. Peter D. Roos: No question Your Honor that we believe that a disruptive classroom is not a desirable situation, that is why we urged the lower court to adopt the emergency suspension procedure, absent the sort of emergency that is provided for by the lower court decision and which is commonly provided for and adopted in regulations that are voluntarily adopted.
There is the sort of disruption that your envision is taken care of, is that what we're dealing with, the sorts of situations that are not emergencies, that are not in some way interfering substantially with the rights of other students or with the learning process.
Justice William H. Rehnquist: In your position, is that the constitution compels every school board to adopt this sort of procedure?
Mr. Peter D. Roos: That is correct Your Honor.
We believe that there is certainly in Ohio a property interest, that would appear to be a liberty interest involved.
There, in fact, may even be a liberty interest under the rule of Constantineau and Joint Anti-Fascist.
If one reads a record, one can get a very clear picture of the sort of stigmatizing and harmful consequences that can occur in a suspension, even a short-term suspension.
It’s our position that there is a protected interest.
There is -- I don't think any question, an invasion thereof, it is our position that some form of prior hearing is appropriate.
Chief Justice Warren E. Burger: Very well and I think your time is entirely consumed, Mr. Bustin, thank you gentlemen.
The case is submitted.