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BROUSSARD v. SCHOOL BD. OF NORFOLK

September 3, 1992

KIMBERLY ANN BROUSSARD, by her mother and next friend, RUTH LORD, Plaintiff,
v.
SCHOOL BOARD OF THE CITY OF NORFOLK, MICHAEL J. CAPRIO, CHERYL ARTESE, CYNTHIA WATSON, and GENE R. CARTER, Defendants.



The opinion of the court was delivered by: ROBERT G. DOUMAR

ORDER AND OPINION

 This action was brought pursuant to 42 U.S.C. ยง 1983 by a public school student of Blair Middle School in Norfolk, Virginia. The matter comes before the Court after a trial on plaintiff's assertions that school administrators violated her Fourteenth and First Amendment rights. Plaintiff, by her next friend, asserted that her suspension for refusing to change out of a shirt printed with the words "Drugs Suck!" violated her rights of due process and free speech. Plaintiff seeks declaratory and injunctive relief. The Court finds that plaintiff's one-day suspension for refusing to change out of her shirt did not violate her due process and free speech rights.

 In her complaint, plaintiff alleged that the defendants deprived her of her right to due process by suspending her summarily, without according her notice or an opportunity to be heard. She alleged a violation of her right of free speech because the Blair Middle School administrators prohibited her from wearing in school a T-shirt emblazoned with the words "Drugs Suck!" On February 19, 1992, defendants moved for summary judgment on the due process and the free speech issues.

 On July 6, 1992, the Court denied defendants' motion for summary judgment without prejudice to its renewal. Between July 6 and July 8, 1992, a bench trial was held on the due process and First Amendment issues. At the conclusion of the trial, the defendants moved for judgment as a matter of law pursuant to Rule 52(b) of the Federal Rules of Civil Procedure. The Court granted judgment as a matter of law on the due process claim.

 II. FACTS

 On March 31, 1991, Kimberly Broussard bought a concert T-shirt at a concert of a pop music group, New Kids on the Block. The shirt was black with white lettering. On the front of the shirt, printed in letters approximately eight inches in height, were the words "Drugs Suck!" On the back of the shirt was printed "NKOTB Donnie Wahlberg," referring to the group New Kids on the Block and its leader.

 Kimberly, at the time a twelve-year-old in the seventh grade, wore the "Drugs Suck!" shirt to Blair Middle School on Wednesday, April 17, 1991. Blair Middle School is an urban school within the Norfolk Public School system consisting of the sixth, seventh, and eighth grades. Approximately 1200 students ranging in age from eleven to fifteen years attend the school.

 At approximately 7:45 a.m. on April 17, 1991, three of Kimberly's teachers noticed her "Drugs Suck!" shirt while she was walking down the hallway before homeroom. Kimberly's Communication Skills teacher, Ms. Artese, told Kimberly that the shirt was inappropriate attire for school.

 Ms. Artese took Kimberly to the school's main office and spoke with Ms. Watson, the school's dean of students. The Blair Middle School principal, Mr. Caprio, was not in the building at that time; therefore, Dr. Grant, the assistant principal, was in charge. Ms. Watson and Dr. Grant conferred, and both found the shirt inappropriate for school due to the offensiveness of the word "suck." They asked Kimberly whether she would wear the shirt inside out or whether she had another shirt or could borrow a shirt from another student. Kimberly responded that she would not turn her shirt inside out, did not have another shirt, and could not borrow a shirt from another student.

 At 8:00 a.m., from Ms. Watson's Office, Kimberly telephoned her mother, Mrs. Ruth Lord, to ask if she or her stepfather could bring another shirt to school because the school found the word "suck" on Kimberly's shirt to be inappropriate for school. Mrs. Lord could not immediately leave home to bring a shirt, but she told Ms. Watson that she would send another shirt to the school when Kimberly's stepfather, Mr. William Lord, returned home. Mrs. Lord expressed concern that Kimberly not miss her classes.

 Kimberly was sent back to homeroom with a pass to return to the office to see if the replacement shirt her mother promised to send had arrived. The shirt had not arrived by the end of homeroom and Kimberly was instructed to return to the office after each class to see if a replacement shirt had arrived. At 8:45, Mrs. Lord phoned Ms. Watson and assured her that she would send another shirt.

 At 9:00 a.m., Mrs. Lord phoned Mr. Leo Williams, director of pupil personnel services for the Norfolk School System. Mrs. Lord informed him that the school had requested that Kimberly not wear the "Drugs Suck!" shirt, and she questioned whether the school could insist that Kimberly not wear the shirt to school because the administrators found it inappropriate. Mr. Williams told Mrs. Lord that he considered the shirt to be in bad taste, and Mrs. Lord testified that Mr. Williams said the word had sexual connotations. Mr. Williams requested that she send a replacement shirt to school and persuade Kimberly not to wear the shirt.

 Mrs. Lord testified that she had the impression that Mr. Williams had overruled the Blair Middle School administrators' decision that Kimberly could not wear the shirt to school. Mr. Williams, however, had no authority to prevent or overrule the imposition of disciplinary action before it took place. He had authority only to reverse a school administrator's decision after disciplinary action had occurred and a formal appeal had been taken to him.

 Mrs. Lord called Ms. Watson at 10:00 a.m. and told her that Mr. Williams had overruled the school administrators' opinion that Kimberly could not attend class in the shirt. Nevertheless, Mrs. Lord again stated that she would send another shirt to school for Kimberly.

 After the principal, Mr. Caprio, arrived at the school, Ms. Watson informed him of the situation and that Mrs. Lord had indicated that Mr. Williams had given Kimberly permission to wear the shirt in class. Mr. Caprio called Mr. Williams, who denied that he had said that Kimberly could wear the shirt to class. Mr. Williams indicated that he would call Mrs. Lord to explain that he had not given permission to wear the shirt to class.

 At 10:45 a.m., Kimberly telephoned her mother from the office. Mrs. Lord told Kimberly that Mr. Williams had said she could wear her "Drugs Suck!" shirt to class. Kimberly told her mother that she had decided not to change her shirt. Mrs. Lord then spoke to Ms. Watson and informed her that Kimberly would not change the shirt.

 At noon, Mr. Williams phoned Mrs. Lord to tell her that he had spoken to the Blair Middle School administrators and that she had misrepresented his statements when she spoke to Ms. Watson. Mr. Lord had returned home sometime before this second conversation with Mr. Williams, listened in on it, and went to the school with another shirt for Kimberly. It is uncontroverted that, through this point in time, no mention had been made that Kimberly could be suspended for wearing the shirt.

 Mr. Lord arrived at the school's main office between noon and 1:00 p.m. Mr. Lord spoke with Mr. Caprio in Kimberly's presence. Mr. Caprio showed them the school disciplinary rules in the student pamphlet, "4 R's--Rules, Rights, Regulations and Responsibilities." Mr. Caprio expressed his distaste for the shirt's language and told them that Kimberly had violated Rule One. Rule One states that a student does not have a right to engage in conduct that will cause a disruption, disturb, or interrupt any school activity. The pamphlet lists as an example of a Rule One violation the wearing of clothing that distracts other students or that interferes with the classroom participation of other students. Mr. Lord disputed Mr. Caprio's ruling that the wearing of the shirt violated Rule One.

 Mr. Caprio gave Mr. Lord and Kimberly the options of changing out of the "Drugs Suck!" shirt and into appropriate attire and thereupon returning to class or of going home for the remainder of the day. In protest, Mr. Lord wrote on an index card, which he left with the school officials, that Mr. Williams had determined that Kimberly had the option to decide whether to wear the shirt. He also wrote that the shirt did not violate the dress code guideline.

 Mr. Caprio told Mr. Lord and Kimberly that, if she refused to change the shirt and remained in school that day, she would be disciplined with suspension. Mr. Lord and Kimberly had the impression that she was suspended if she did not change the shirt, even if she went home for the remainder of the day.

 Kimberly decided not to change the shirt. The school's office manager released Kimberly from school into the care of her stepfather. Mr. Lord and Kimberly left the school believing that she was suspended. Kimberly testified that she and her stepfather took the pamphlet home and later read about the process for the appeal of school discipline.

 When Mrs. Lord arrived at the school, Mr. Caprio handed her the notice stating that Kimberly was suspended for one day. The notice stated that Kimberly

 refused a request by the principal to remove a shirt that was inappropriate. Parent requested a formal suspension notice instead of the option chosen by father to take the child home. Parent must appear for reinstatement on April 19, 1991.

 Upon receipt of the notice, Mrs. Lord indicated to Mr. Caprio that he would hear from the American Civil Liberties Union ("ACLU").

 After the issuance of the suspension notice, Mr. Lord phoned Mr. Sellew, then the deputy superintendent of schools. Mr. Sellew told Mr. Lord that the shirt was inappropriate because of the offensiveness and sexual connotation of the word "suck." That afternoon, Mr. Lord also phoned Dr. Carter, the superintendent of Norfolk public schools.

 The next day, April 18, 1991, Mr. and Mrs. Lord wrote to Dr. Carter requesting clarification as to the policy of the Norfolk school system regarding the incident involving Kimberly's shirt. on April 19, 1992, Kimberly was reinstated to Blair Middle School. Mrs. Lord, who was at the school for the reinstatement, signed a suspension notice that indicated that the suspension was for one day and was at the request of Kimberly's mother.

 Dr. Carter responded to the parents' letter with a letter dated April 25, 1991. He wrote that he had spoken with the senior school administrators at Blair Middle School and had concluded that Kimberly violated Rule one of the student pamphlet on rights, rules, regulations, and responsibilities. He wrote:

 Clothing containing messages couched in strong language is inappropriate, especially when the language has an overt sexual connotation. Such messages are even more likely to he disruptive when directed at adolescents as opposed to mature adults.

 Dr. Carter stated that he would not reverse the principal's decisions.

 Kimberly and her parents utilized the appeal procedure by requesting and receiving a review of the plaintiff's suspension by the superintendent of schools. The plaintiff and her parents, however, did not appeal to the school board, the next level of appeal after Dr. Carter. With the support of the American Civil Liberties Union Foundation of Virginia, whom Mrs. Lord had consulted on the day of this incident, the plaintiff filed a civil rights action with this Court.

 III. DUE PROCESS CLAIM

 A. Testimony, Argument, and Findings of Fact

 In her complaint, plaintiff asserted that defendants subjected her to an indefinite suspension and that she was denied due process because she did not receive notice or an opportunity to be heard. *fn1" The parties dispute the length of Kimberly's suspension and the events ...


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