TUTTLE, Circuit Judge:
Appellant, a minor, brought this § 1983 suit for himself and all those similarly situated through his father, for declaratory judgment and a permanent injunction declaring that a part of Regulation 5114 of the Dade County, Florida Board of Education was violative of the due process clause of the Fourteenth Amendment. The part challenged is the section which authorizes the Superintendent of Schools to give a 30-day suspension, in addition to the principal's 10-day suspension, without benefit of a hearing.
The facts reveal that appellant, Tyrone Williams, was a senior at Miami Killian Senior High School. He was charged with participating in a mob attack on Tuesday, May 5, 1970. On Friday, May 8, 1970, he was suspended for ten days by the principal pursuant to Regulation 5114. A suspension notice was mailed on that day to Williams' parents advising them in general terms of the disciplinary action taken and the reasons for it and inviting them to confer with the principal with respect to the matter. This letter also informed Williams' parents that a 30-day suspension following the 10-day suspension already imposed was being recommended.
On the following Monday, Williams' parents and several other persons acting on his behalf conferred with the principal. The nature of the acts that were allegedly committed were explained to them. Thereafter, a 30-day suspension letter signed by the Superintendent was sent to Williams' home. The letter stated that if they had any questions they should telephone the school authorities.
The trial court held that this "hearing" was enough to comply with the due process requirements of the Fourteenth Amendment. Moreover, appellees argue that appellant could have contested the truth or falsity of the charges against him at this informal hearing but did not do so. Thus, even if the hearing was not adequate, it was appellant's own fault.
We disagree with the trial court's decision and appellee's characterization of this hearing for it is obvious from the testimony of the principal himself that this informal meeting was called not to weigh objectively the facts and reach a fair decision, but to explain to the parents the decision that had already been reached.
By Mr. Abbott, Counsel for Plaintiffs-Appellants:
We cannot agree that such a hearing complies with the requirements of Dixon, supra:
We feel we must state, at the outset, that we are not dealing with the power of the school to discipline its students. Nor are we concerned with the guilt or innocence of appellant. We focus only on the school's procedure for the disposition of the case. Further, we note that though the record indicates there may have been considerable disruption in the school at the time appellant was first suspended (for ten days), we are concerned with the imposition of the additional 30-day suspension which was given without benefit of an effective hearing and at a later time.
The constitutionality of the section of Regulation 5114 which allows a 10-day suspension by the principal, without benefit of a hearing, was recently upheld by a three-judge court in this circuit in Banks v. Board of Public Instruction of Dade County, 314 F.Supp. 285 (S.D.Fla. 1970). The court felt that the need to act quickly and in a manner that could not further disrupt the educational process outweighed the student's interest in a prior hearing.
In the case at bar we have a much different situation. An additional 30-day suspension was added after tensions began to subside and a need for summary action could not be overriding. Further, though we feel that even a ten-day suspension is a serious penalty, see, e.g., Black Students of North Ft. Myers, Jr.Sr. High School, et al. v. Williams, et al., 317 F.Supp. 1211 (M.D.Fla.1970), the additional 30-day suspension, which brings the total to 40 school days or eight full weeks is a most serious punishment. It is more than a mere administrative device utilized to remove unruly students at a particularly tense time. Indeed, it is tantamount to the loss of a full term.
We realize, of course, that it is not necessary that students be given the kinds of procedural protections reserved for those accused of serious crime. Nevertheless, we feel that a penalty of this magnitude ought not be imposed without proper notice of the charges, and at least an attempt to ascertain accurately the facts involved and to give the student
Indeed, in an ever increasingly complex society, education plays an extremely significant role. As the Supreme Court said in Brown v. Board of Education of Topeka, Shawnee County, Kansas, 347 U.S. 483, 493, 74 S.Ct. 686, 690, 98 L.Ed. 873 (1954):
Similarly, this court, in Dixon stated:
Though Dixon dealt with the expulsion of college students, we feel that to deprive even a high school student, "in these days", of 40 school days may indeed cause serious harm. Thus, as the court stated in Banks:
While, as stated above, the Banks court did not allow for this kind of a hearing prior to the ten-day suspension, we see no reason why these procedural safeguards ought not be required before adding an additional 30 days.
Appellees raise one other point. They argue that appellant failed to exhaust his administrative remedies. As appellant points out, however, this overlooks the clear language of the then operative Board Regulation 5114 which intimates no right or privilege of appeal.
The trial court's judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
Additional 30-day Suspension
Only the Superintendent of Schools has the authority to suspend a pupil from school for more than 10 days.
If more than a 10-day suspension is deemed necessary, the principal may request an additional 30-day suspension (total 40 school days). This request for an additional 30-day suspension shall be prepared in triplicate on Form 39: Request for 30-day Suspension and the original and one copy sent to the district office for the superintendent's study, concurrence, and signature. This request must include justification for the recommended action. If approved by the district superintendent, the original copy must be sent to the Supervisor of Attendance Services, Pupil Personnel Services Department, within a 3-day period of the initial 10-day suspension in order to have time to process the request before the expiration of the initial 10-day suspension. The district superintendent and the school principal shall each retain a carbon copy of the request. The principal has the responsibility to notify immediately the appropriate police department and the School Security Department at the time of the incident described in the request for the suspension, if this action is warranted.
At the time a pupil is recommended for a 30-day suspension by the principal and the district superintendent, they shall also recommend whether or not the pupil shall have the opportunity to attend a Center for Special Instruction during the suspension period. On approval of the 30-day suspension by the Superintendent of Schools, he shall notify the parent by certified mail of the suspension and the basis for the action taken. The Superintendent's letter shall state also if the pupil's attendance at a Center for Special Instruction is approved. Copies of this letter are forwarded to the district superintendent and the principal.
At this time the school shall file in the pupil's cumulative guidance record Form 39: Request for 30-day Suspension and a copy of the letter of the Superintendent of Schools to the parent. A brief narrative comment of the suspension should be noted in section 9 of the cumulative guidance record.
There shall be no evidence of the 30-day suspension posted on the pupil's permanent record except that which is reflected by the pupil's attendance record.