Opinion
2:01-CV-394-J
August 22, 2003
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is a pro se civil rights action challenging the constitutionality of the Tulia Independent School District's drug-testing policy. The Court stayed this case pending the Supreme Court's ruling in Board of Education of I.S.D. No. 92 of Pottawatomie County v. Earls, ___ U.S. ___, 122 S.Ct. 2559, 153 L.Ed.2d 735(2002). The stay being lifted upon issuance of that ruling, the remaining Defendants moved for summary judgment on all of Plaintiff's claims, contending that pursuant to theEarls decision no constitutional violation exists. Summary judgment will be entered in favor of the remaining Defendants.
Factual Background
Plaintiff Alan Bean's son, Amos Bean, was a student athlete in the Tulia I.S.D. school system. Amos Bean graduated from Tulia High School in May of 2003. Alan Bean alleges that while Amos was a Tulia High School student certain school district officials performed a drug test that was not consented to by the Plaintiff.
It is undisputed that Plaintiff initially consented to Amos being drug tested. Plaintiff asserts that he later withdrew permission for his son to be tested. Plaintiff alleges that after his consent was withdrawn, at the urging of Defendant Sam Sadler Amos was nevertheless tested pursuant to the school district's drug-testing policy.
At the time this lawsuit was filed the school district's drug-testing policy was being applied only to Tulia's student athletes. It was later expanded to be applicable to all students in grades 7 through 12 who participate in any extracurricular activity or program. The policy covers all sports, band, cheerleading, and University Interscholastic League (UIL) programs, activities and competitions, as well as all other athletic and non-athletic school activities. Because of widespread participation in curriculum enhancement courses, programs and activities within the Tulia student body, the drug-testing policy at issue covers virtually every secondary school student enrolled in the Tulia Independent School District.
Plaintiff alleges that on its face, and as implemented, the drug-testing policy violates the Fourth Amendment's prohibition on unreasonable searches. Plaintiff alleges that the drug testing procedures utilized by the school district vary from the written policy in an unconstitutional manner. Specifically, Plaintiff alleges that students are not randomly selected by a computer for testing but are individually selected by teachers for testing as part of a suspicion-based drug usage testing policy.
Plaintiff further alleges that the policy violates the Texas Constitution and the equal protection clauses of the United States and Texas Constitutions because it was instituted with a racial bias and has a disparate impact upon blacks and Hispanics. Plaintiff is not black or Hispanic; he and his son are white. Plaintiff alleges that the policy, under which students who repeatedly test positive for drugs are placed into alternative learning environments such as Tulia's in-school suspension (ISS) center, have a disparate impact on Amos Bean's opportunity for "the enrichment that comes with an ethnically diverse educational environment" because most of the ISS center students are non-white. Plaintiff alleges that Tulia's athletic programs also suffer from declining minority participation.
Summary Judgment Standards
Once the moving party has initially shown its entitlement to judgment by tendering competent evidence, "the non-movant cannot rest on the pleadings." Green v. Touro Infirmary, 992 F.2d 537, 538-39 (5th Cir. 1993). The party opposing judgment must point the Court to "specific facts with sufficient particularity to meet all the elements necessary to lay a foundation for recovery, including those necessary to negate the defense" offered by movant. Brown v. Texas AM University, 804 F.2d 327, 333 (5th Cir. 1986). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (initial burden is on movant to show entitlement to summary judgment with competent evidence); Fed.R.Civ.Pro. 56(c) (e).
Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp., 477 U.S. at 323-25, 106 S.Ct. at 2553; Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. at 2510. The nonmoving party must designate specific facts showing there exists a genuine issue of material fact on those elements sought to be negated by the movant. Ibid.
Discussion and Analysis Constitutionality of the Policy as Written
On its face the Tulia drug-testing policy does not significantly differ from the policy approved in Vernonia School Dist. 47J v. Action, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). The policy therefore is not unconstitutional as written. Id.; Board of Education of I.S.D. No. 92 of Pottawatomie County v.Earls, ___ U.S. ___, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002).
Constitutionality of the Policy as Applied
It is alleged that the drug-testing policy is not implemented as written and therefore is not a random, suspicionless program but is, instead, used as part of a suspicion-based testing program instituted with a racial bias or animus. In support of these allegations, Plaintiff offered the affidavits of Kathy Curry, Michelle Williams, and Nancy Cozette Bean, which state that their children were tested too often for such testing to be truly random and, in one instance, one drug test perhaps might have been performed in response to non-teacher parent's oral request that the school district test three students, one of whom might have been tested. Plaintiff also tendered the affidavit of Gary 0. Gardner, a former Tulia I.S.D. school board trustee, who states that there was a racial animus behind Tulia's institution of its drug-testing policy. Gardner and Nancy Bean further affirm that the policy has had a disparate impact upon Hispanics and blacks because they have declined to participate in sports and because the positively-testing ISS students are predominately minority. These affidavits were properly objected to by Defendants on the basis that they contain conclusory statements, statements of subjective belief, hearsay and "hearsay within hearsay" statements, and/or are immaterial to the claims pled. See Federal Rule of Evidence 402, 801(c), and 802.
Despite notice, Plaintiff did not attempt to rebut Defendants' objections or cure the cited evidentiary deficiencies. For example, Plaintiff does not tender affidavits from people with personal knowledge of the racial makeup of ISS students who have or have not repeatedly tested positive for drugs, a reasonably precise statement of the total ethnic makeup of the Tulia student body versus the ethnic makeup of tested students, or what exposure Amos might otherwise have had to minorities when participating in extracurricular activities. Even assuming that it might be relevant, there is no competent evidence tending to establish that any purported decline in minority participation is caused by the existence of the drug testing program. Plaintiff's affidavits are replete with hearsay statements about what students and parents may have told the affiant, but no affidavits have been tendered setting forth such relevant personal knowledge by those students or parents.
In order to create an evidentiary record upon which Plaintiff's allegations may be considered at the summary judgment stage, the Court reopened discovery to permit the parties to offer evidence on the entire methodology, protocol, procedures and/or policies utilized from start to finish to obtain consent, select and drug test Tulia students. The Court permitted discovery to be reopened for twenty (20) days insofar as it relates to the issues stated above or is otherwise related to whether or not the drug testing procedure as actually utilized by the Tulia I.S.D. is identical or similar to the procedure approved in Earls and/or the procedure as described at that time in testimony offered before this Court in Gardner v. Tulia I.S.D., civil action number 2:97-CV-20-J. This reopened, second discovery period has now passed.
Despite this additional opportunity to tender competent summary judgment evidence supporting his "non-random" allegations and despite specific notice of the evidentiary deficiencies of his earlier affidavits, Plaintiff did not attempt to engage in any additional discovery procedures. He did not tender any new evidence supporting his allegations that Tulia's random, suspicionless drug-testing procedure was not utilized as written, has a disparate impact upon minorities, or had behind it at its implementation a racial bias or animus.
The Defendants, the School District and Sadler, did tender additional evidence supporting the random, suspicionless drug-testing procedure actually utilized by the District. Defendants tendered the affidavit of Ken Miller, the current Tulia school district superintendent, as well as relevant drug-testing policy exhibits supporting the grant of summary judgment to Defendants on all federal claims.
The party opposing judgment must point the Court to "specific facts with sufficient particularity to meet all the elements necessary to lay a foundation for recovery, including those necessary to negate the defense" offered by movant. Brown v. Texas AM University, 804 F.2d 327, 333 (5th Cir. 1986). "[W]here the non-moving party has presented evidence to support the essential elements of its claims but that evidence is merely colorable, or is not significantly probative, summary judgement may be granted." Anderson, 477 U.S. at 249-50, 106 So. Ct. at 2510-11 (citations omitted). Legal conclusions and general allegations do not satisfy this burden. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Lechuqa v. Southern Pacific Transp. Co., 949 F.2d 790, 798 (5th Cir. 1992) (conclusory statements in affidavits do not provide facts that will counter summary judgment evidence, and testimony based on conjecture alone is insufficient to raise an issue to defeat summary judgment); Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (party affidavits setting forth only ultimate or conclusory facts are insufficient to either support or defeat a motion for summary judgment).
Drug Test Performed After Consent was Revoked
As to Plaintiff's allegation that a drug test was performed on his son after written consent to test had been revoked, Plaintiff submits no evidence showing when Amos' written consent form was revoked in writing, when it was orally revoked, or when the unconsented-to drug test was allegedly performed. The Miller affidavit states that parents could withdraw their testing consent at any time by providing a written statement to that effect. No such evidence is in this record.
Miller further states that he is unaware of any deviation from the district's drug-testing policies and procedures with respect to any testing of Amos Bean after his father withdrew consent. Other than the unverified allegation that it did, there is no evidence in this record that such a policy deviation in fact occurred after consent was revoked in writing, or when the unconsented-to test occurred, or the circumstances under which it occurred. A party cannot rest upon his pleadings to defeat a summary judgment motion. "The bare allegations of the pleadings will not suffice" to show the existence of a genuine issue of material fact. Honore v. Douglas, 833 F.2d 565, 567 (5th Cir. 1987). Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp., 477 U.S. at 323-25, 106 S.Ct. at 2553.
Further, Plaintiff cannot prevail under Section 1983 for any alleged negligent failure by school officials to refrain from or stop what he perceives as unconsented-to action done pursuant to an unconstitutional drug-testing policy. Negligence alone is not actionable under 42 U.S.C. § 1983. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 666, 88 L.Ed.2d 662 (1986).
Mootness
Plaintiff's claims for declaratory and injunctive relief became moot upon his son's high school graduation. The Fifth Circuit has recognized the principle that a student's graduation from school may moot a suit for prospective injunctive and declaratory relief. See Doe v. Marshall, 622 F.2d 118, 119 (5th Cir. 1980), cert denied, 451 U.S. 993 (1981) (case moot where certain injunctive relief was no longer needed for a football player who graduated); Sapp v. Renfroe, 511 F.2d 172, 176 (5th Cir. 1975) (need for declaratory judgment extinguished when issue will not recur as to plaintiff who graduated).
Amos' graduation from Tulia High School in May, 2003, means that his father no longer has a claim for the specific equitable relief sought here. Cf. Alder v. Daval, 112 F.3d 1475 (11th Cir. 1997) (finding plaintiffs' claims for equitable relief moot where students had graduated, despite arguments that other children may be subjected to the same injury). See also McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208, 1211 (8th Cir. 1992) (finding case moot where student graduated even though other children enrolled in the district may suffer from same action).
For all of these reasons, summary judgment for the Defendants will be entered on all federal claims.
State-law Based Claims
Considering "the values of judicial economy, convenience, fairness, and comity," Carneqie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 622-23, 98 L.Ed.2d 720 (1988), this Court declines to exercise its supplemental jurisdiction and will dismiss the remaining state-law claims for resolution in state court, pursuant to the Supreme Court's admonishment in United Mine Workers of America v. Gibbs that "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of the applicable law." 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
The Texas Supreme Court in City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995), held that "there is no basis from the text of the [Texas] Constitution to assume that a party is given more than equitable protection." Because the Texas Supreme Court has held that the Texas Constitution affords only equitable relief for violations of its provisions, the Court notes that the Defendants may also be entitled to summary judgment on Plaintiff's state law claims for monetary relief. However, that issue and the issue of the mootness of Plaintiff's injunctive relief claims are not issues this Court need address.
Conclusions
Summary judgment for the Defendants will be granted on all federal claims.Plaintiff's state-law based claims will be dismissed.
It is SO ORDERED.