UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


BENJAMIN A. RATNER, a minor, by         
and through his mother and next
friend, Beth Haney; BETH HANEY,
individually,
               Plaintiffs-Appellants,
                 v.
LOUDOUN COUNTY PUBLIC SCHOOLS;
EDGAR B. HATRICK, individually and
in his official capacity as Division
Superintendent, Loudoun County
Public Schools; HARRY E. BIBB,                   No. 00-2157
individually and in his official
capacity as Superintendent’s
Designee, Loudoun County Public
Schools; JOSEPH L. MAUCK,
individually and in his official
capacity as Principal, Blue Ridge
Middle School; ROBERTA GRIFFITH,
individually and in her official
capacity as Assistant Principal, Blue
Ridge Middle School,
                Defendants-Appellees.
                                        
            Appeal from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
             Albert V. Bryan, Jr., Senior District Judge.
                          (CA-00-944-A)

                       Argued: May 8, 2001

                      Decided: July 30, 2001

        Before WIDENER and MOTZ, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.
2            RATNER v. LOUDOUN COUNTY PUBLIC SCHOOLS
Affirmed by unpublished per curiam opinion. Judge Hamilton wrote
a concurring opinion.


                             COUNSEL

ARGUED: Steven Henry Aden, THE RUTHERFORD INSTITUTE,
Charlottesville, Virginia, for Appellants. John Otto Easton, JORDAN,
COYNE & SAVITS, L.L.P., Fairfax, Virginia, for Appellees. ON
BRIEF: Carol T. Stone, Anna M. Stafford, JORDAN, COYNE &
SAVITS, L.L.P., Fairfax, Virginia, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   In October 1999, Benjamin Ratner, age 13, was in the eighth grade
at Blue Ridge Middle School in Loudoun County, Virginia.1 On Octo-
ber 8, 1999, a schoolmate told Ratner that she had been suicidal the
previous evening and had contemplated killing herself by slitting her
wrists. She also told Ratner that she inadvertently had brought a knife
to school in her binder that morning. Ratner had known her for two
years, was aware of her previous suicide attempts, and feared for her
safety. Thus, he took the binder from her and put it in his locker. He
did not tell school authorities about the knife, but he intended to tell
both his and her parents after school.

  By lunchtime that day, Roberta Griffith, Assistant Principal at the
school, had learned that the girl might have given a knife to Ratner.
    1
  Our recitation of the facts of this case are those found in Ratner’s
complaint, which we accept as true for the purposes of this appeal.
Mayes v. Rapoport, 

, 460 (4th Cir. 1999).
              RATNER v. LOUDOUN COUNTY PUBLIC SCHOOLS                    3
Eventually, Fanny Kellogg, Dean at the school, summoned Ratner to
her office and asked him about the knife. Ratner admitted that he had
it, and at Kellogg’s direction he went alone to his locker, retrieved the
binder, and gave it to Kellogg. Kellogg acknowledged that she
believed Ratner acted in what he saw as the girl’s best interest and
that at no time did Ratner pose a threat to harm anyone with the knife.

   Nonetheless, Ratner was then suspended by Griffith for 10 days for
possessing a knife on school grounds in violation of school board pol-
icy. Four days later, the school’s principal, Joseph Mauck, affirmed
Ratner’s suspension with written notice. Two days after that, Edgar
Hatrick, Division Superintendent for the Loudoun County Public
Schools, issued written notice informing Ratner that he was being
suspended indefinitely pending further action by the school board,
and informing Ratner that Hatrick was recommending to an adminis-
trative hearing panel that Ratner be suspended for the remainder of
the school term, which ended February 1, 2000. The administrative
hearing panel met on October 29, 1999, and recommended Ratner be
suspended for the remainder of the term, and Hatrick then gave Rat-
ner written notice of his long-term suspension. Ratner’s mother, Beth
Haney, requested and received a hearing before the school district’s
Discipline Committee to appeal, but that committee unanimously
approved Ratner’s long-term suspension.

   Ratner, through his mother, filed suit against the school district and
four of its employees under 42 U.S.C. § 1983. Ratner’s complaint
asserted that his suspension under what is called a zero tolerance policy2
  2
    Ratner’s complaint asserts that the school employs a zero tolerance
policy regarding weapons, a policy that precludes officials from consid-
ering the circumstances of a particular case when meting out punishment.
Although we accept Ratner’s assertion as true for the purposes of this
appeal, we note that his brief’s recitation of the school’s policies indi-
cates that possession of a weapon on school grounds would not necessar-
ily result in long-term suspension. Instead, as recited by Ratner, board
policy in such cases apparently begins with a presumption that offending
students will be expelled (permanently removed) but allows school offi-
cials discretion to subject offending students "to such lesser disciplinary
action, including long-term suspension [suspension for one or two
semesters], as may be deemed appropriate."
4             RATNER v. LOUDOUN COUNTY PUBLIC SCHOOLS
amounted to violations of Ratner’s Fourteenth Amendment rights to
due process and equal protection and his Eighth Amendment right to
be free from cruel and unusual punishment, and asserted several other
causes of action, and sought compensatory and punitive damages,
fees and costs, and other relief.
   The district court dismissed Ratner’s complaint for failure to state
a claim under Fed. R. Civ. P. 12(b)(6). We review de novo a district
court’s decision to dismiss a case for failure to state a claim. Mayes
v. Rapoport, 

, 460 (4th Cir. 1999). In reviewing a
12(b)(6) dismissal, we construe factual allegations in the nonmoving
party’s favor, treating them as true, and we will affirm a dismissal for
failure to state a claim only if it appears that the plaintiffs would not
be entitled to relief under any facts which could be proved in support
of their claims. 

(quotations and citations omit-
ted). Having heard oral argument and considering the briefs and the
record, we find no reversible error, and we affirm substantially for the
same reasons expressed by the district court in its opinion, Ratner v.
Loudoun County Pub. Sch., Civ. No. 00-944-A (E.D. Va. July 28,
2000).
   In its memorandum opinion, the district court concluded Ratner’s
claim was, in essence, a claim of due process violations. The district
court also concluded, correctly, that the school officials gave Ratner
constitutionally sufficient, even if imperfect, process in the various
notices and hearings it accorded him, and we agree. See Goss v.
Lopez, 

, 581 (1975) (describing process due students in
connection with suspensions from school).
   However harsh the result in this case, the federal courts are not
properly called upon to judge the wisdom of a zero tolerance policy
of the sort alleged to be in place at Blue Ridge Middle School or of
its application to Ratner. Instead, our inquiry here is limited to
whether Ratner’s complaint alleges sufficient facts which if proved
would show that the implementation of the school’s policy in this
case failed to comport with the United States Constitution. We con-
clude that the facts alleged in this case do not so demonstrate.
    The judgment of the district court is accordingly
                                                           AFFIRMED.
             RATNER v. LOUDOUN COUNTY PUBLIC SCHOOLS                  5
HAMILTON, Senior Circuit Judge, concurring:

   On appeal, Ratner challenges the district court’s dismissal of three
federal constitutional claims alleged in his complaint: (1) a procedural
due process claim under the Fourteenth Amendment; (2) an equal pro-
tection claim under the Fourteenth Amendment; and (3) a cruel and
unusual punishment claim under the Eighth Amendment. U.S. Const.
amend. VIII, XIV, § 1. After accepting all well-pleaded allegations in
Ratner’s complaint as true and drawing all reasonable factual infer-
ences from those facts in his favor, it appears certain that he cannot
prove any set of facts which would entitle him to relief on any of the
three claims asserted. Accordingly, the opinion for the court correctly
affirms the district court’s Rule 12(b)(6) dismissal of Ratner’s claims,
and I am constrained to concur in that opinion. Edwards v. City of
Goldsboro, 

, 244 (4th Cir. 1999) ("[A] Rule 12(b)(6)
motion should only be granted if, after accepting all well-pleaded
allegations in the plaintiff’s complaint as true and drawing all reason-
able factual inferences from those facts in the plaintiff’s favor, it
appears certain that the plaintiff cannot prove any set of facts in sup-
port of his claim entitling him to relief.").

   I write separately to express my compassion for Ratner, his family,
and common sense. Each is the victim of good intentions run amuck.
Ratner’s complaint alleges that school suspensions for possession of
a weapon on Loudoun County school property are imposed automati-
cally, pursuant to a zero-tolerance policy that precludes consideration
of the facts and circumstances of a particular student’s conduct in
determining a violation of stated policy and the resulting student pun-
ishment. There is no doubt that this zero-tolerance/automatic suspen-
sion policy, and others like it adopted by school officials throughout
our nation, were adopted in large response to the tragic school shoot-
ings that have plagued our nation’s schools over the past several
years. Also, no doubt exists that in adopting these zero-
tolerance/automatic suspension policies, school officials had the noble
intention of protecting the health and safety of our nation’s school
children and those adults charged with the profound responsibility of
educating them. However, as the oft repeated old English maxim rec-
ognizes, "the road to hell is paved with good intentions." The panic
over school violence and the intent to stop it has caused school offi-
cials to jettison the common sense idea that a person’s punishment
6            RATNER v. LOUDOUN COUNTY PUBLIC SCHOOLS
should fit his crime in favor of a single harsh punishment, namely,
mandatory school suspension. Such a policy has stripped away judg-
ment and discretion on the part of those administering it; refuting the
well established precept that judgment is the better part of wisdom.

   Here, a young man, Ratner, took a binder containing a knife from
a suicidal fellow student in an effort to save her life. He put the binder
in his locker without even opening it. Indeed, at all times, Ratner
never saw the knife. Further, the facts do not offer even the hint of
a suggestion that Ratner ever intended to personally possess the knife
or harm anyone with it. In fact, the first school official on the scene
reported that at no time did Ratner intend to harm anyone with the
knife. Yet, based on the school’s zero-tolerance/automatic suspension
policy, Ratner was suspended from school for nearly four months.

   School officials should, without doubt, punish a student for know-
ingly and intentionally bringing a dangerous weapon on school prop-
erty. But the question raised by the facts of Ratner’s case is one of
degree and the law must be flexible enough so that school officials
may intrude upon the right to a free appropriate public education only
in the most justifiable circumstances. See Goss v. Lopez, 

, 573-74 (1975) (holding that property interest in public education
is created when state maintains a public school system and requires
children to attend). Under a facts/circumstances-sensitive examination
of this case, Ratner’s nearly four-month suspension from middle
school is not justifiable. Indeed, it is a calculated overkill when the
punishment is considered in light of Ratner’s good-faith intentions
and his, at best, if at all, technical violation of the school’s policy.
Suffice it to say that the degree of Ratner’s violation of school policy
does not correlate with the degree of his punishment. Certainly, the
oft repeated maxim, "there is no justice without mercy" has been
defiled by the results obtained here. But alas, as the opinion for the
court explains, this is not a federal constitutional problem.