Justice Scalia’s famous quote shows up in a school law case…

We’re Zooming with the Dawg at 10:00 this morning. Hope you can join me and my special guest, Dr. Jamey Harrison from the UIL. 

The late Justice Scalia once expressed the wish that all federal judges would have a stamp that read “stupid but constitutional.”  We hate to see a judge cite that famous quote in a case involving a school district, but unfortunately, that’s what happened in Pearland ISD last year.

While mostly ruling in favor of the school district, the magistrate judge described the actions of the school officials as “stupid” and defying “all logic, commonsense, and, in my estimation, common decency.”  In other words, Hizzoner wanted to make it clear that he did not approve of the decision to bring the 7th grader into compliance with the dress code by using a Sharpie to fill in the bare places on his scalp after he sported a new haircut featuring a “fade with a design line.”  Despite the judge’s strong personal disapproval, he dismissed almost all of the claims in the suit.  Here’s why:

THE PARENTS.  The court held that the parents lacked “standing” to pursue this case in their own names, as they did not allege any injury to themselves.  They could serve as representatives for their son, but had no basis to file a suit on behalf of themselves. So claims filed by the parents were dismissed.

THE 4th AMENDMENT CLAIM OF EXCESSIVE FORCE.  This claim was dismissed based on Flores v. School Board of DeSoto Parish, a 5th Circuit decision from 2004 that limited the ability of students to make such claims in a disciplinary context.

DUE PROCESS UNDER THE 5TH AMENDMENT.  Dismissed.  The 5th Amendment applies only to the federal government, and there was no federal involvement in this incident.

PROCEDURAL DUE PROCESS UNDER THE 14TH AMENDMENT.  Dismissed.  The student was never suspended or even sent to ISS. He was given a choice between ISS and the Sharpie, and he chose the Sharpie. Being threatened with ISS does not invoke the due process requirements of the 14th Amendment. 

SUBSTANTIVE DUE PROCESS UNDER THE 14TH AMENDMENT.  Dismissed. Previous cases have made it clear that as long as state law provides a remedy for abuses by school officials, there is no constitutional claim.  Texas does provide for such remedies.

EQUAL PROTECTION UNDER THE 14TH AMENDMENT.  Dismissed.  The African-American student made conclusory allegations of racial discrimination but did not put forth any factual allegations of white students who were treated differently.

RACIAL DISCRIMINATION UNDER THE CIVIL RIGHTS ACT.  Dismissed. This claim was against the district. The court noted that the district is not “vicariously liable” for the wrongful actions of its employees. There was no PISD policy that authorized this action, and the plaintiff failed to produce facts showing deliberate indifference by any of the higher ups in the district.

CONSPIRACY.  The school’s lawyers pointed out that the district and its employees constitute a single legal entity.  Conspiracy claims require proof of actions by two or more entities acting in concert.  You cannot “conspire” with yourself.  The court agreed with that.  Dismissed.

WHAT’S LEFT?  The student still has a lawsuit to pursue here, but only based on allegations of assault against the specific individuals who were involved. This included an assistant principal, a discipline clerk and a teacher.

The case is Trice v. Pearland ISD, decided by the federal court for the Southern District of Texas on April 1, 2020, with the court approving the Magistrate’s Report and Recommendation. The court order can be found at 2020 WL 1667748 and the R&R is at 2020 WL 1557750.