A few reminders from the 5th Circuit…

There are numerous factual disputes about exactly what happened at the Whataburger in October, 2019, after the football game between Katy High School and Tompkins.  None of those facts got sorted out in the 5th Circuit’s disposition of the lawsuit filed by Bronson McClelland, former captain of the Katy Tigers gridiron team.  Instead, the court reminds us of several well established principles of law. 

QUALIFIED IMMUNITY.  The student was suspended from the football team and stripped of captain status after he sent a three-second video to a student from the other high school.  He alleged that this disciplinary action violated his First Amendment free speech rights.  After all, his brief Snapchat video was recorded away from school after school hours, and wasn’t even sent to another student at KHS.  Isn’t this just like the F-Bombing cheerleader in Pennsylvania who won her First Amendment case before the Supreme Court?

It would have been satisfying if the court had addressed that issue. But it didn’t.  Instead, the court held that the scope of Mr. McClelland’s free speech rights was not “clearly established” at the time of the incident.  Therefore, the principal was entitled to immunity. Thus we are reminded that school officials are entitled to immunity unless “the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

LIABILITY OF THE DISTRICT.  The district relied on its Athletic Code of Conduct to justify the disciplinary action.  However, the school board never adopted, approved, or ratified the ACC.  General rule in constitutional claims against school districts: they are not liable simply because one of their employees violated someone’s constitutional rights. They face liability only if the injury is directly attributable to action taken by the board.  That didn’t happen here.  So the court dismissed KISD as a defendant.

DUE PROCESS AND THE DAEP. There was a second incident involving this student a year later. He was briefly suspended from school and assigned to the DAEP for possession of a small quantity of marijuana in his car, which was parked on campus. The student alleged that the school deprived him of the “due process” he was entitled to as per the Constitution. Again there were many factual disputes that the 5th Circuit ignores.  Instead, it relied on solid precedent.  Students are not entitled to constitutional due process when assigned to DAEP. Chapter 37 does require a conference with the student prior to DAEP assignment, but the U.S. Constitution does not require “due process.”  That’s because “a student’s placement in an alternative education program violated no protected property right.”  Nevares v. San Marcos CISD, 111 F.3d 25 (5th Cir. 1997).

DUE PROCESS AND THE FOOTBALL TEAM.  The student alleged that the ACC was so vague as to be unconstitutional.  After all, what does “display/model behaviors associated with positive leaders” mean?  Isn’t that pretty subjective?  Again, the court sidestepped that issue and instead, reminded us that getting booted from the football team does not require constitutional due process:

This court has held that “a student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement.”

It’s McClelland v. Katy ISD, decided by the 5th Circuit on March 31, 2023. The case will be published in the official reports, but for now can be found at 2023 WL 2728225.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Tomorrow: Toolbox Tuesday!!