Brief In Support Of Temporary Restraining Order
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PAULA WILLIAMS-PIAZZESE and
LOUIS PIAZZESE, as parents
and next
friends of KARA R. WILLIAMS a minor,
Plaintiffs,
No. CIV
STEPHANIE BELMORE, Vice Principal
of Rio Rancho High School, GARY TRIPP,
Principal, Rio Rancho High School,
SUE CLEVELAND, Superintendent of
RIO RANCHO PUBLIC SCHOOLS,
all in their individual and official capacities,
and RIO RANCHO PUBLIC SCHOOLS,
Defendants.
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
INTRODUCTION
Kara Williams ["Kara"], a ninth-grader at Rio Rancho High
School ["RRHS"], is a victim of the blind, unthinking, and
inflexible application of an unwritten so-called "zero tolerance" weapons
policy Kara has been suspended until the Fall 2001 semester on the charge
of "possession of firearms or other weapons." The "weapon" that
Kara had was a one-and-a-quarter inch long swiss-army style penknife
that attached to a key ring with the key to Kara's house. The penknife
contains a small blade; a plastic toothpick; a pair of tweezers; a nail
file, and a pair of scissors. Kara's step-father, Louis Piazzese, had
recently given Kara the key ring with the penknife after she lost her
house key. Kara had no intent, plan or thought of using the penknife
in any threatening or harmful manner, either when she put the key ring
into her backpack before she came to school, or at any other time. Indeed,
Defendant Stephanie Belmore ["Belmore"], vice principal of
RRHS who initially suspended Kara and who recommended long-term suspension,
did not believe that Kara presented any risk of harm. Verified Complaint, ¶¶ 41,
53.
According to Defendants Belmore and vice principal Gary Tripp ["Tripp"],
RRPS's so-called "zero tolerance" weapons policy prohibits
consideration of any circumstances, and prohibits the exercise of disciplinary
discretion. However, in marked contrast, RRHS and RRPS's written policies
specifically provide for the consideration of circumstances, and the
exercise of disciplinary discretion.
BACKGROUND
When Kara left her house the morning of March 30, 2001 to go to school,
she put her key ring inside her purse and put her purse inside her backpack.
Later that day, a school security officer came to one of Kara's classes,
and escorted Kara and another female student, Sarah, to the office, where
Belmore told the girls that the security officer was going to search
them because "there was reason to believe" that they had smoked
marijauna in the bathroom the previous day. Belmore did not ask for Kara
or Sarah's consent for the search, and they did not consent to the search.
Belmore had only one reason for believing that Kara may have smoked
marijuana in the bathroom the previous day, March 29. A teacher, Stacey
Salinas, had reported to Belmore that two female students—not Kara
or Sarah—had returned from a bathroom break on March 29 smelling
like marijuana, and that another student also reported to Ms. Salinas
that those two students had smoked marijuana. One of those suspected
students told Belmore that she had not smoked marijuana, but that there
were two other students in the bathroom while she was there, and that
she smelled marijauna in the bathroom. The student did not identify the
other students in the bathroom by name or appearance, and did not claim
that she saw the students smoking marijuana.
Based only on that information, Belmore checked school records to determine
the names of all female students who had not been in their classrooms
during the entire time that the students whom Ms. Salinas had reported
were absent from Ms. Salinas' classroom. When Belmore learned that Kara
and Sarah had been temporarily absent from their class at the same time
as the alleged marijuana smoking incident, Belmore instructed the school
security officer to bring Kara and Sarah to her office, and to search
them. No one had reported to Belmore, or to anyone else, anything that
may have indicated that Kara or Sarah, separately or together, had smoked
or possessed marijuana on March 29 or on March 30. No one reported that
Kara smelled like marijuana, or behaved or appeared in any way as if
she were under the influence of or possessed marijuana, either on March
29 or on March 30.
The RRHS security officer conducted a pat-down search of Kara, and then
searched Kara's backpack, where she found Kara's key ring with the penknife
inside Kara's purse. Defendant Belmore told Kara that under the so-called
zero tolerance policy, she would be suspended long-term (i.e., for more
than 10 days). Belmore charged Kara with violation of Policy 336-3.A.1.a.(10)(b)
(possession of firearms or other weapons), and recommended long-term
suspension. (Notice of Hearing, attached as Exhibit A.) That policy is
included in the Defendant Rio Rancho Public Schools Board of Education
["Board"] Policies and Procedures ["Board Policies"],
which is not distributed to RRHS students or their parents. The RRHS
Student Handbook contains the school discipline code, the "Code
of Conduct," which lists twenty-seven prohibited "behaviors," including "possession
of weapons." (Code of Conduct, attached as Exhibit B.) Each Student
receives a Student Handbook, and must read it and sign a form acknowledging
that she has read and understands the school discipline code. (Plaintiff
Kara William's signed Acknowledgment Form, attached as Exhibit C.)
"Weapon" is not defined in the Student Handbook. The only
written definition of "weapon" within RRPS is contained in
the Board's Policies as Policy No. 347-1:
The Board of Education recognizes that the presence of weapons in school
not only creates unacceptable risks of injury or death, but also creates
a climate that undermines the educational purposes of the schools. Accordingly,
it is the policy of the Board of Education to forbid the possession,
custody, and use of weapons by unauthorized persons in or around school
property.
This policy is enacted to implement the requirements of the federal
Gun-Free Schools Act, 20 U.S.C. § 8921 (a)(1), and it is the intention
of the Board that it be interpreted to conform to provisions of applicable
law. . . .
For purposes of this policy, a "weapon" is any firearm, knife,
explosive, or other object, even if manufactured for a nonviolent purpose,
that has a potentially violent use . . . if, under the surrounding circumstances,
the purpose of keeping or carrying the object is for use, or threat of
use, as a weapon.
(Board Policy No. 347-1, attached as Exhibit D.) Neither Kara nor her
parents saw or knew of Policy No. 347-1 until April 18, 2001, when the
attorney for RRPS brought a copy of the page-and-a-half Policy to the
suspension hearing that day.
Prior to the hearing, Kara's parents spoke with Tripp in an effort to
have the suspension rescinded, but he told them he could do nothing under
the zero tolerance policy. Kara's attorney wrote to the attorney for
the Board, asking that Kara be reinstated, but the Board refused.
At the suspension hearing on April 18, 2001, Belmore testified that
she had no reason to believe that Kara presented any risk of harm to
anyone. Belmore and Tripp testified that the zero-tolerance policy prohibits
consideration by any school official or administrator of any circumstances
regarding a student's possession of a "weapon," and that under
the zero-tolerance policy, possession of a swiss-army style knife, no
matter what the circumstances, mandated long-term suspension with no
allowance of discretion by any school official or administrator. However,
as Belmore and Tripp both acknowledged at the suspension hearing, the
Code of Conduct in the Student Handbook specifically provides for consideration
of "the circumstances of the behavior . . . and the prior history
or lack thereof." (Code of Conduct, p. 1, Exh. B.) The Code of Conduct
also provides for the exercise of discretion. (Id.)
Nevertheless, Belmore and Tripp both testified that they did not, could
not, and would not consider any circumstances regarding Kara's possession
of the penknife, including that she had no violent history; that she
had never threatened anyone with the penknife or otherwise; that she
had never displayed the penknife; or that she had not presented any risk
or threat to the safety of the students or staff at RRHS by virtue of
having the penknife on her key ring. They also testified that they had
no discretion in the punishment.
At the hearing, Tripp showed a video, in which he discussed the zero-tolerance
policy regarding weapons. He stated that the video was shown in all classrooms
at the beginning of the 2000-2001 school year, over eight months earlier.
Prior to the hearing, Kara did not recall seeing any video about RRHS
weapons policy. However, when she saw the video during the suspension
hearing, she recalled seeing it at the beginning of the school year,
as she readily acknowledged at the hearing.
On April 23, 2001, Kara and her parents received the Hearing Officer's
Decision, suspending Kara until the Fall semester for the 2001-2002 school
year. (Decision of Hearing Officer, attached as Exhibit E.) The Decision
allows Kara to attend a newly-established "Credit Recovery Program,
which allows her to obtain credit for two of her four classes for the
Spring, 2001 semester. She attends the classes in the evenings with one
other student. Kara will lose credit for her two other classes that are
not part of the Credit Recovery Program. Additionally, if Kara misses
two Credit Recovery Program classes, whether excused or not, she may
not complete the Program, and will lose credit for the two classes that
are part of the Credit Recovery Program. By the Decison, Kara may not
attend summer school this summer. During her suspension, Kara cannot
be on school property, or attend any school functions. She has already
missed a field trip that relates to an important project for one of her
required classes, and has missed and will miss school social and athletic
functions.
RRPS officials, including Defendant Sue Cleveland, the Superintendent
of RRPS, have defended Kara's suspension and the zero tolerance policy
in media coverage. In one television news story regarding Kara's suspension
and the zero-tolerance policy, RRPS Associate Superintendent Dr. James
King was quoted as saying that starting next year RRPS will make up a
handout and hand it out to all the students so that they know what weapons
entail what punishments.
ARGUMENT
PLAINTIFFS CAN MEET EACH OF THE FOUR REQUIREMENTS FOR A
TEMPORARY RESTRAINING ORDER AND FOR A PRELIMINARY INJUNCTION.
To obtain a temporary restraining order or a preliminary injunction,
the movant must establish that: "(1) the movant will suffer irreparable
harm unless the injunction issues; (2) there is a substantial likelihood
the movant ultimately will prevail on the merits; (3) the threatened
injury to the movant outweighs any harm the proposed injunction may cause
the opposing party; and (4) the injunction would not be contrary to the
public interest." American Civil Liberties Union v. Johnson, 194
F.3d 1149 (10th Cir. 1999) (citing Kiowa Indian Tribe of Oklahoma v.
Hoover, 150 F.3d 1163, 1171 (10th Cir. 1998)). Plaintiffs can meet each
of those requirements.
A. Plaintiffs are Substantially Likely to Prevail on their Claim that
Defendants Have Violated Plaintiff's Constitutionally Protected Rights.
Kara and her parents are substantially likely to prevail on the merits
of their claim that Defendants have violated Kara's rights guaranteed
by the Fourteenth Amendment. The right to a public education is long-recognized
as a constitutionally protected property interest. Public high school
students have substantive and procedural interests in the right to a
public education. See Wood v. Strickland, 420 U.S. 308, 326 (1975); Goss
v. Lopez, 419 U.S. 565 (1975). Accordingly, "[t]he authority of
the state and of local school boards to prescribe and enforce standards
of conduct for public school students must be exercised consistently
with constitutional safeguards of individual student rights." New
Mexico Board of Education Regulations, § 6.11.2.12 NMAC. Additionally,
by state law, school discipline policies must be developed with the involvement
of parents and students and filed with the state department of education,
and must "detail specific prohibited acts and activities and enumerate
possible disciplinary sanctions." Section 2254.3, NMSA 1978.
Kara's long-term suspension based on the charge of "possession
of a firearm or other weapon" pursuant to the RRPS unwritten so-called
zero-tolerance policy failed to comply with state law requirements, and
is unconstitutional under the Fourteenth Amendment in several respects.
i. Procedural Due Process Violations
As a matter of procedural due process, Defendants' failure to provide
students with a written notice that "weapon" includes a key
ring penknife, even if the penknife is not used or intended for use in
any threatening, harmful way violated Kara's right to be warned of punishable
conduct. See Stephenson v. Davenport Community Sch. Distr., 110 F.3d
1303 (8th Cir 1997) (school regulation prohibiting gang symbols, where "gang
symbols" are undefined, is void for vagueness); see also, Kolender
v. Lawson , 461 U.S. 352, 358 (1983) (the two aspects of the vagueness
doctrine are providing notice of prohibited conduct, and establishing
guidelines in order to govern enforcement). Moreover, state law specifically
provides procedures for enactment of disciplinary policies which set
forth "specific prohibited acts and activities," the obvious
intent of which is to provide notice to parents and students. Section
2254.3 NMSA 1978. The Defendants themselves evidently realize they have
failed to provide notice. See Verified Complaint, ¶ 68 (statement
attributed to Associate Superintendent Dr. James King on a television
news report that next year RRPS will make up a handout and hand it out
to all the students so that they know what weapons entail what punishments).
Also, the refusal to consider facts and circumstances, or to exercise
discretion in enforcing the "weapons policy" pursuant to the
unwritten so-called zero-tolerance policy constitutes a predetermination
which renders any hearing meaningless, and which did deprive Kara of
meaningful due process. Moreover, the refusal to consider circumstances
under the so-called zero-tolerance policy conflicts with the very policy
which Defendants applied to Kara. See Exh. D (Board Policy No. 347-1
defining "weapon," in pertinent part, as a knife . . . even
if manufactured for a nonviolent purpose, that has a potentially violent
use . . . if, under the surrounding circumstances, the purpose of keeping
or carrying the object is for use, or threat of use, as a weapon (emphasis
added)).
ii. Substantive Due Process Violations
As a matter of substantive due process, the zero-tolerance policy as
applied to Kara is irrational, arbitrary and capricious. In the context
of school discipline, a substantive due process claim will succeed when
there is "no rational relationship between the punishment and the
offense." See Seal v. Morgan, et al., 2000 U.S. App. LEXIS 24939;
2000 FED App. 0358P (6th Cir. Nos. 995090/995600) ("suspending or
expelling a student for weapons possession, even if the student did not
knowingly possess any weapon, would not be rationally related to any
legitimate state interest."). Defendants refused to consider any
circumstances regarding Kara's possession of the penknife, including
that she had no violent history; that she had never threatened or harmed
anyone with the penknife or otherwise, and had no thought of doing so;
that she had never displayed the penknife; or that she had not presented
any risk or threat to the safety of the students or staff at RRHS by
virtue of having the penknife on her key ring. they did not consider
her a threat to school safety. Verified Complaint, ¶¶ 54-55.
The long-term suspension of Kara, who presented absolutely no risk to
school safety, bears no relationship—much less a rational one—to
the legitimate state interest of ensuring school safety. Plaintiffs are
likely to prevail on the merits.
B. Kara Williams Will Suffer Irreparable Harm Unless the Restraining
Order and Injunction are Granted.
"The decision to expel a student from school is a weighty one,
carrying with it serious consequences for the student." Seal, 2000
U.S. App. LEXIS 24939 (citing Goss, 419 U.S. at 576 ("Education
is perhaps the most important function of state and local governments,
and the total exclusion from the educational process for more than a
trivial period . . . is a serious event in the life of the suspended
child.") (internal quotation marks and citation omitted)). Thus,
the long-term suspension, accomplished as it was only through Defendants'
continuing constitutional violations and non-compliance with state law,
is an inherent irreparable harm. Further, iuf Kara is not allowed to
immediately return to RRHS, and to complete her assignments and tests
for the semester, she will suffer the irreparable harms of lost education,
and the likely delay of graduation from high school. Additionally, Kara
will be irreparably harmed by the obvious stigma attached to being suspended
from school for "weapons possession," for which Plaintiffs
have asserted a protected liberty interest.
Finally, Defendants' severe punishment of Kara for a mere key ring penknife
sends a destructive message to Kara:
According to many leading psychologists, rigid and inflexible discipline
policies directly conflict with two major developmental needs of schoolaged
youths: 1) the development of strong and trusting relationships with
key adults in their lives, particularly those in their school; and 2)
the formation of positive attitudes toward fairness and justice.
Harvard University, Civil Rights Project, June 2000: Opportunities Suspended:
the Devastating Consequences of Zero Tolerance and School Discipline
Policies. Immediate and full reinstatement will prevent irreparable harm.
C. Issuance of an Injunction Will Not Harm Defendants, Nor Will it Adversely
Impact the Public Interest.
The two remaining requirements for a TRO and for a preliminary injunction,
which Plaintiffs can easily satisfy, are that the threatened injury to
Kara outweighs any harm the proposed injunction may cause to Defendants,
and that the injunction would not be contrary to the public interest.
Inasmuch as Defendants will suffer no conceivable harm by being required
to rescind the unconstitutional suspension of Kara, the harm to Kara
if the restraining order or injunction is not issued greatly outweighs
any potential harm to Defendants. A restraining order or injunction not
only would not harm the public interest, but would uphold the public's
interest in protecting public school students from unconstitutional conduct.
WHEREFORE, Paula Williams-Piazzese and Louis Piazzese, as parents and
next friends of Kara Williams, respectfully request that this Court grant
a temporary restraining order ordering Defendants to allow requiring
Defendant RRPS to allow Kara to return to Rio Rancho High School, and
such further relief as this Court deems just and proper.
Respectfully submitted,
_______________________________
Jane Gagne
Attorney for Plaintiffs
108 Wellesley Drive, S.E.
Albuquerque, N.M. 87106
(505) 265-6199
Cooperating Attorney for New Mexico
Civil Liberties Foundation
Maureen A. Sanders, Co-Legal Director
ACLU of New Mexico
Sanders & Westbrook, P.C.
102 Granite N.W.
Albuquerque, N.M. 87102
(505) 243-2243
Of Counsel
I hereby certify that a copy of the
foregoing was forwarded by facsimile
and mail on April 30, 2001 to the following
attorney for the Defendants:
Charlotte H. Hetherington
Cuddy, Kennedy, Hetherington, Albetta & Ives, LLP
P.O. Box 4160
Santa Fe, NM 87502-4160
Facsimile: (505) 954-7373
__________________________
JANE GAGNE
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