APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 73-34
Before Seitz, Chief Judge, Van Dusen and Rosenn, Circuit Judges.
These appeals present questions concerning the due process rights of students in the public schools who are temporarily removed and transferred because of behavioral problems from their regularly assigned school to another school designed to meet the needs of such students. This is the second occasion for us to consider issues arising from a dispute over disciplinary procedures to be used in the public schools in the City of Erie, Pennsylvania. Because the details of the protracted litigation in this case are set out at length in our earlier opinion, Jordan v. School District of City of Erie, Pa., 548 F.2d 117 (3d Cir. 1977), it will suffice here to relate merely the heart of the matter.
In early 1973, plaintiffs commenced this action on their own behalf and on behalf of similarly situated students in the Erie School District against the Board of Education of the City of Erie ("the Board") and the Erie Education Association ("the Association"), an organization of school teachers in the Erie School District. In essence, plaintiffs alleged that the school district's disciplinary procedures, involving the transfer of students from their regularly assigned schools to the New Directions Center, a facility designed especially to meet the needs of disruptive students, deprived students of their due process rights under the fourteenth amendment. After considerable pre-trial maneuvers, the parties (including the Commonwealth of Pennsylvania as intervenor-plaintiff) succeeded in negotiating a consent decree, approved by the district court on February 5, 1974. Briefly, the consent decree provided for notice of the proposed disciplinary action to the student and his parents, and for informal and formal hearings concerning the decision to transfer.*fn1
Over a year later, in April 1975, plaintiffs and the Commonwealth, alleging numerous violations of the consent decree, filed a joint Motion for Contempt against the Board and the Association. In July 1975 the Association similarly moved the court to impose sanctions on the School Board. After consideration of the motions, the district court found the Board in contempt for failure to comply with the consent decree.
In December 1975, the district court held hearings, in response to a motion by the Board, to modify the consent decree in light of the Supreme Court's then recent decision in Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). The district court ruled that it had no power to unilaterally modify the consent decree, but would vacate it unless the parties would agree to a modification. The parties failed to reach an agreement, and the court's order vacating the consent decree was appealed to this court in Jordan v. School District of City of Erie, Pa., supra. We reversed, concluding that a district court has the power to modify a decree "if a change in the law alters the operative conditions affected by the decree." 548 F.2d at 122. Therefore, we directed the district court to "effect such modification of the consent decree, if any" as required by Goss v. Lopez. Id.
Upon remand, the district court requested further argument concerning modification of the consent decree, and directed the parties to submit proposed modifications. At a hearing held on April 7, 1977, the class action plaintiffs and the Commonwealth argued in favor of modification, suggesting the addition of the following three paragraphs:
32. Notwithstanding anything to the contrary contained herein, no student shall be removed from class for disciplinary reasons until after notice of proposed action and basis therefor and opportunity to explain his version of the occurrence or occurrences at the informal meeting with the building principal as provided in paragraphs 2 and 3 or if in the judgment of the classroom teacher and the principal a student's presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process, the student may be immediately removed from the class or from the school. In such cases, the procedures for notice and informal meeting with the principal shall be immediately implemented so that the informal meeting with the principal shall be held no later than three school days following the alleged occurrence forming the basis for the procedures.
33. Notwithstanding anything to the contrary herein, students who are recommended to be transferred out of the New Directions Center by the Principal of the New Directions Center shall be placed in his or her regular school without the necessity of further hearings provided the student has attended at least six weeks at the New Directions Center and the principal of the New Directions Center or a staff member designated by him has discussed the student's problems with the teacher and disciplinary committee at the time of his return to his regular school stating the reasons for the action.
34. When a student who has attended the New Directions Center for at least six weeks desires to be transferred out of the New Directions Center contrary to the wishes of the principal of the New Directions Center, the procedure outlined herein for Hearing I and Hearing II shall apply and be put into immediate effect upon receipt of written notice from the student or his or her representative. Under no circumstances shall a student be forced to attend the New Directions Center for a consecutive period longer than one full year.
The district court entered a final order on June 22, 1977, modifying the decree by adding paragraph 32, as suggested by plaintiffs, but excluding their suggested paragraphs 33 and 34.
The Association appeals contending that the consent decree as originally approved need not have been modified in light of Goss v. Lopez. Plaintiffs and the Commonwealth argue in favor of including paragraph 32, and cross-appeal the district court's exclusion of paragraphs 33 and 34.
We reverse in part and affirm in part.
The threshold question before us is whether the principles of Goss v. Lopez require any modification of the consent decree, as originally drafted. To answer that question, we will first examine the language of Goss, and then we will analyze the provisions of the consent decree to determine the scope of Goss "s applicability, and to measure the extent of the rights provided against the Goss yardstick.
Goss v. Lopez involved an Ohio statute which empowered the principals of Ohio public schools to suspend a student for misconduct for up to ten days, provided that notice is given the student's parents within 24 hours, stating the reasons for the action. Plaintiffs, nine public high school students who had been suspended pursuant to this statute, brought a class action against the Columbus, Ohio, Board of Education, seeking, Inter alia, a declaration that the Ohio statute permitting such suspensions was unconstitutional because it empowered school officials to deprive students of their right to an education without a hearing in violation of the due process guarantees of the fourteenth amendment. A ...