Filed: Jun. 08, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-50907 Summary Calendar _ MIGUEL ESPARZA, by Next Friend Enrique Esparza, by Next Friend Manuela Esparza; PATRICIA ESPARZA, by Next Friend Enrique Esparza, by Next Friend Manuela Esparza; TERESA ESPARZA, by Next Friend Enrique Esparza, by Next Friend Manuela Esparza; ALEX GARZA, by Next Friend Maria de los Angeles Garza; EVELIO CONTRERAS, JR., by Next Friend Graciela Contreras; NORBERTO ESTRADA, by Next Friend Juan R. Estrada; J
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-50907 Summary Calendar _ MIGUEL ESPARZA, by Next Friend Enrique Esparza, by Next Friend Manuela Esparza; PATRICIA ESPARZA, by Next Friend Enrique Esparza, by Next Friend Manuela Esparza; TERESA ESPARZA, by Next Friend Enrique Esparza, by Next Friend Manuela Esparza; ALEX GARZA, by Next Friend Maria de los Angeles Garza; EVELIO CONTRERAS, JR., by Next Friend Graciela Contreras; NORBERTO ESTRADA, by Next Friend Juan R. Estrada; JE..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-50907
Summary Calendar
_______________
MIGUEL ESPARZA, by Next Friend Enrique Esparza,
by Next Friend Manuela Esparza;
PATRICIA ESPARZA, by Next Friend Enrique Esparza,
by Next Friend Manuela Esparza;
TERESA ESPARZA, by Next Friend Enrique Esparza,
by Next Friend Manuela Esparza;
ALEX GARZA, by Next Friend Maria de los Angeles Garza;
EVELIO CONTRERAS, JR., by Next Friend Graciela Contreras;
NORBERTO ESTRADA, by Next Friend Juan R. Estrada;
JESSICA ESTRADA, by Next Friend Juan R. Estrada;
MARCOS VELASQUEZ, by Next Friend Olga L. Velasquez;
RENE VELASQUEZ, by Next Friend Olga Velasquez,
Plaintiffs-Appellants,
VERSUS
BOARD OF TRUSTEES, the Board of Trustees
of the Eagle Pass Independent School District;
and
LEONEL GALAVIZ, Superintendent of
the Eagle Pass Independent School District,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(DR-98-CV-45)
_________________________
June 4, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
This appeal arises from a challenge to the mandatory school
uniform policy of the Eagle Pass Independent School District. Nine
students, acting through their parents, sought a temporary
restraining order (“TRO”) and preliminary injunction (“PI”)
enjoining the district1 from enforcing the school uniform policy,
declaring the policy unconstitutional, and awarding attorneys’
fees. The district court denied a TRO and PI, and the plaintiffs
appeal that denial.2 Finding no reversible error, we affirm the
denial of preliminary relief.
I.
A.
The district adopted a mandatory uniform policy for students
on April 14, 1997. Students in all grades must wear a white top
and khaki trousers or skirts to school. Parents are permitted to
request a waiver based on a “written bona fide religious or
philosophical objection.” The policy also provides for financial
assistance to students who cannot afford uniforms, and families in
crisis are given priority for such assistance.
In the 1997-98 school year, all students who requested waivers
received them. Before the 1998-99 school year, the plaintiffs'
families submitted waiver requests identical to their 1997-98
requests, but the district denied them. With one exception, each
1
The students sued the board of trustees and the superintendent, whom we
refer to collectively as the “district.”
2
The underlying merits issues have not yet been determined and are not
before us in this appeal.
2
of the plaintiffs sought a waiver based on a philosophical
objection, although each also stated that he could not afford to
pay for the uniform.3 The plaintiffs were given a two-week grace
period to purchase and wear their uniforms, but at the end of the
two weeks, they continued to go to school wearing street clothes.
The district follows a four-step procedure for sanctioning a
student who fails to wear a uniform. After each of the first two
infractions, the student receives written warnings, his parents are
notified, and he receives counseling. After the third infraction,
he is placed on in-school suspension for ten days. After the
fourth infraction, he is assigned to the alternative education
placement (“AEP”) program, wherein he receives only the core
courses necessary to earn the credits needed for graduation but may
not participate in advanced placement courses, honors courses, or
extracurricular activities.
The plaintiffs had received their first infraction notice, and
most had received their second notice, when they filed their TRO
motion on September 1, 1998. They sought preliminary relief to
block the in-school suspension that would stem from a third
infraction.
B.
3
Ms. Garza is alleged to have filed a waiver request on behalf of her son
Alex based on indigence alone. The Esparzas and Ms. Contereras are alleged to
have filed waiver requests for their children on the basis of both financial
resources and a philosophical objection. The Velasquez and Estrada plaintiffs
are alleged to have filed waiver requests based on their philosophical objections
alone.
3
The plaintiffs sought declaratory and injunctive relief
pursuant to 42 U.S.C. § 1983, asking the court to block
implementation of the policy for the 1998-99 school year, claiming
the mandatory school uniform policy violates their rights to
procedural due process, substantive due process, and equal
protection under the Fourteenth Amendment. The plaintiffs filed
their complaint on September 1, 1998, seeking first a TRO and later
a preliminary injunction, enjoining the district from enforcing its
uniform policy pending trial on the merits. The district filed an
expedited response to the TRO request on September 2. Without
seeking any further briefing or holding a hearing, the court issued
an order on September 3, denying a TRO and a PI.
II.
As an initial matter, the plaintiffs argue that the court made
several procedural errors in handling their motions. First, they
claim the court abused its discretion when it converted the motion
for a TRO to a motion for PI without first holding an adversarial
hearing. Second, they contend that the court abused its discretion
when it denied the motion for a PI without holding an evidentiary
hearing to resolve factual disputes. Third, they assert that the
court did not permit them fully to brief the legal issues involved
in resolving the merits of granting a PI. As the plaintiffs
acknowledge, we review the procedures employed in denying a PI for
abuse of discretion. See Kaepa, Inc. v. Achilles Corp., 76 F.3d
624, 628 (5th Cir. 1995).
4
A.
The plaintiffs assert that the district court must provide an
adversarial hearing before converting a motion for a TRO to a
motion for a PI. While conceding that the court has the discretion
to convert a TRO motion to a PI motion when the other side has
received notice, the plaintiffs maintain that a court must hold an
adversarial hearing before it can exercise that discretion. In
support, they point out that in all of the cases cited by the
district court as authority for its discretion to convert, the
courts granted such adversarial hearings.4
The plaintiffs misunderstand the holdings of these cases.
None of these courts decided that a trial court must hold an
adversarial hearing on the legal question of whether it can convert
a TRO into a PI. Rather, they held that issuing a PI was possible
because all parties had received notice and had an opportunity to
brief their motion. Thus, the notice and hearing requirements
relate to the district court’s ability to grant a PI but not to its
ability to convert the TRO to a PI.
In a normal TRO setting, there is neither notice nor an
opportunity to be heard, and a court may grant temporary relief
only pursuant to the high standards found in FED. R. CIV. P. 65(b).
4
See, e.g., Earley v. Smoot, 846 F. Supp. 451, 452 (D. Md. 1994) (converting
TRO to PI when application was heard in “adversary fashion with reasonable notice
to defendant who appeared through counsel”); Maine Cent. R.R. v. Brotherhood of
Maintenance of Way Employees,
652 F. Supp. 40, 41 n.1 (D. Me. 1986) (treating TRO
as PI application after defendant received notice and hearing was held); MLZ, Inc.
v. Fourco Glass Co.,
470 F. Supp. 273, 275 (E.D. Tenn. 1978) (converting TRO to PI
where adverse party had notice and participated at hearing).
5
For instance, a TRO may provide relief only for up to ten days, and
the movant must show “that immediate and irreparable injury, loss,
or damage will result to the applicant before the adverse party or
his attorney can be heard in opposition.” See rule 65(b). But
when the adverse party has notice, the protective provisions of
rule 65(b) do not control, and the court has discretion to consider
granting more lasting relief under a PI. See 13 JAMES W. MOORE,
ET AL., MOORE’S FEDERAL PRACTICE § 65.31, at 65-79 n.4 (3d ed. 1998);
accord 11A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2951,
at 254-55 (1995). But there is no authority requiring a district
court to hold a hearing on the legal question whether it can
convert a TRO into a PI.
The plaintiffs have not explained how they were prejudiced by
the decision to convert their request for TRO and PI into a request
for PI only. By so converting, the court actually lowered the
plaintiffs’ burden, because to obtain a TRO they would have had to
meet higher standards. See Levas v. Village of Antioch, 684 F.2d
446, 448 (7th Cir. 1982). It is not evident how an adversarial
hearing on the legal question of conversion would have benefited
the plaintiffs, especially in light of their request for immediate
action for a TRO and a PI.
B.
More persuasively, the plaintiffs aver that the district court
should have held an evidentiary hearing before granting a PI and
that because their motion raises significant factual disputes, the
6
court abused its discretion by denying a PI without giving them a
“meaningful opportunity to be heard.” See Kaepa, 76 F.3d at 628.
The plaintiffs argue that there are four areas of factual dispute.
The first two claims support their equal protection assertions:
that the plaintiffs who failed to wear school uniforms because of
indigence (1) were disciplined and (2) did not receive financial
assistance. The second two claims support their substantive and
procedural due process claims: that they were not permitted to
appeal (1) their waiver request denials and (2) the punishments for
their initial uniform infractions.
The district court, however, exercised its discretion to grant
a PI without a hearing to resolve these factual questions, because
it assumed all of the plaintiffs’ alleged facts (with one
exception) to be true. When material facts are not in dispute, a
court may rule on a motion for a PI without an oral hearing. See
Kaepa, 76 F.3d at 628.5 In other words, just because some facts
are disputed, the court does not have to hold a hearing before
ruling on a motion for a PI unless the parties show there are
material facts in dispute.6
The district court did not abuse its discretion when it
granted the PI on the plaintiffs’ due process claims, because it
accepted as true the plaintiffs’ claim that they were not allowed
5
Accord 13 JAMES W. MOORE ET AL., supra, § 65.21[6], at 65-38 (“Rule 65(a) does
not require a motion for a PI to be supported by oral testimony.”).
6
See also Federal Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 558-59 (5th
Cir. 1987) (affirming grant of PI without a hearing where adverse party failed to
point to any convincing factual disputes material to the decision).
7
to appeal the denial of their waiver requests or their punishments
for violating the uniform policy. Without any disputed facts, the
court had no reason to hold a hearing.
As for the equal protection claims, because the plaintiffs
failed to allege that they had applied for financial assistance,
the court refused to accept as true the contention that the school
had denied their requests for financial assistance and does not
have enough funds for such assistance. In the absence of
allegations that the plaintiffs had pursued these avenues for
financial assistance, the court held that they had not presented a
factual dispute as to the constitutionality of the financial
assistance disbursements. We agree.7
III.
The plaintiffs raised three constitutional challenges to the
implementation of the uniform policy: (1) procedural due process;
(2) substantive due process; and (3) equal protection. The
district court denied injunctive relief because the plaintiffs had
failed to demonstrate a substantial likelihood of success on the
merits of any these challenges.8 We review the district court's
7
The plaintiffs also argue that the court did not give them an “ample
opportunity to present their respective views of the legal issues involved,” as
required by Kaepa, 76 F.3d at 628. The plaintiffs, however, fail to point to any
specific legal issue that they did not adequately brief in the 22-page memorandum
attached to their combined TRO/PI motion.
8
To obtain a PI, the moving party must establish (1) a substantial
likelihood of success on the merits; (2) a substantial threat that the movant
will suffer irreparable injury if the injunction is denied; (3) that the
threatened injury outweighs any damage the injunction might cause the defendant;
and (4) that the injunction will not disserve the public interest. Hoover v.
Morales, 164 F.3d 221, 224 (5th Cir. 1998). Because the district court found
8
factual conclusions for clear error and its legal conclusions
de novo. See Hoover v. Morales, 146 F.3d 304, 307 (5th Cir. 1998).
A.
To prevail on a procedural or substantive due process claim,
the plaintiffs must show that they were deprived of a
constitutionally protected property or liberty interest. See Board
of Regents v. Roth, 408 U.S. 564, 569 (1972). We agree with the
district court that the plaintiffs have failed to demonstrate how
the district’s uniform policy deprives them of a constitutionally-
protected liberty or property interest. Therefore, the plaintiffs
do not meet the “substantial likelihood of success” requirement
needed to win injunctive relief.
The district court held that because the plaintiffs who
violated the uniform policy still received instruction in the core
courses necessary to graduate, the district had not deprived them
of any constitutionally-protected property interest. The
plaintiffs argue that the court failed to consider the district’s
punishments for a third infraction: in-school suspension for ten
days. We agree with the district, however, that this court has
previously held that a similar in-school suspension does not
constitute an unconstitutional deprivation of a property right.
See Nevares v. San Marcos Consolidated Indep. Sch. Dist, 111 F.3d
25, 26 (5th Cir. 1997).
that the plaintiffs had failed to meet the first prong, it did not reach the
others.
9
Like the students in Nevares, the plaintiffs are not being
deprived of their access to public education, because they are not
being excluded or suspended from attending classes. Rather, they
are only being “transferred from one school program to another
program with stricter discipline.” See Nevares, 111 F.3d at 26.9
The plaintiffs do not allege that any part of the district’s policy
would result in suspension or expulsion, the type of actions
encroaching on property interests that the Supreme Court has stated
may implicate due process concerns. See Goss v. Lopez,
419 U.S.
565 (1975).
Similarly, we agree that the plaintiffs did not show a
substantial likelihood of success by alleging a property interest
in gifted and talented or advanced placement courses. To establish
a property interest, the plaintiffs must show that they have “more
than an abstract need or desire for it . . . . [They] must,
instead, have a legitimate claim of entitlement to it.” Board of
Regents, 408 U.S. at 577.
Though it is true that Texas law instructs schools to “provide
an array of learning opportunities for gifted and talented
students,”10 this general admonition does not establish a
constitutional entitlement to such classes. The Nevares court
noted that state law could create a protected interest in a
9
The plaintiffs seek authority in Cole v. Newton Special Mun. Separate
Sch. Dist., 676 F. Supp. 749, 752 (S.D. Miss. 1987), which stated in dictum that
an in-school suspension could be construed as a deprivation of education. We
decline to rely on this non-binding authority, especially in light of more
recent, binding precedent by a panel of this court in Nevares.
10
19 TEX. ADMIN. CODE § 89.3 (West 1998).
10
particular kind of education, such as special education, but the
court refused to find that Texas had created such an interest for
“particular incidents of education such as sports or advanced
placement classes or attending a particular school.” Nevares, 111
F.3d at 27 (citing Seamons v. Snow,
84 F.3d 1226, 1234-35 (10th
Cir. 1996)). Therefore, we agree with the district court that the
plaintiffs have not shown a substantial likelihood of success on
their due process claims based on a right to take advanced courses.
Additionally, we also reject the plaintiffs’ claim of a
liberty interest based on the right to “useful knowledge”
identified by the Supreme Court in Meyer v. Nebraska, 262 U.S. 390,
399 (1923). The district correctly points out that the Meyer court
struck down a statute prohibiting the instruction of foreign
languages as a violation of a parent’s right to direct his child’s
education. The wholesale prohibition of a particular form of
study, as was the case in Meyer, does not implicate the same
liberty interests.
In this case, the district is imposing a temporary restriction
on the plaintiffs that deprives them of enrollment in some classes.
As the Nevares court noted, this court has “rejected arguments that
there is any protected interest in the separate components of the
educational process . . . .” 111 F.3d at 27 (citing Walsh v. La.
High Sch. Athletic Ass’n,
616 F.2d 152 (5th Cir. 1980)).
Finally, the plaintiffs assert a liberty interest in their
right to determine their personal appearance. Instructive in this
regard is Karr v. Tuttle, 460 F.2d 609 (5th Cir. 1972), upholding
11
a school district’s hair-length regulations. There, we analyzed
liberty interest claims along a “spectrum of importance.” See id.
at 615.
At one end of the spectrum are the great liberties such
as speech, religion, and association specifically
guaranteed in the Bill of Rights . . . . At the other
end of the spectrum are the lesser liberties that may be
invaded by the state subject only to the same minimum
test of rationality that applies to all state action.
Id. The Karr court then held that hair length regulations do not
“rise to the level of fundamental significance which would warrant
our recognition of such a substantive constitutional right.”
Id.
The plaintiffs have not adequately explained why clothing worn
during school hours has any more of a “fundamental significance”
than does the length of hair, which affect a student’s appearance
during other than school hours. Moreover, the plaintiffs have not
supported their assertion that the uniform policy is “arbitrary.”
They have not shown any reason to doubt the rationality of the
district’s view that the wearing of uniforms will help promote
school safety, improve discipline, and enhance the learning
environment. Therefore, they have failed to show a substantial
likelihood of success in demonstrating a liberty interest in their
personal appearance.
Without showing a substantial likelihood of success in
asserting a constitutionally-protected property or liberty
interest, the plaintiffs cannot maintain a cognizable substantive
or due process claim. Therefore, we do not reach the plaintiffs’
attacks on the district’s school uniform procedures, and we affirm
the denial of a PI regarding the due process claims.
12
B.
The plaintiffs assert that the district violated their equal
protection rights under the Fourteenth Amendment by discriminating
against them on the basis of wealth, alleging that even though they
sought a waiver based on their philosophical objection and their
indigent status, the district denied their waiver requests. We
agree with the district court, however, that the plaintiffs have
not provided a factual basis for their equal protection allegation.
Assuming that the district did deny some of the plaintiffs’
waiver requests despite their claim of indigence, the plaintiffs
have failed to allege that they had applied for, and have been
denied, financial assistance. They have not contended that other
similarly-situated plaintiffs have applied for, and have received,
financial assistance, while they have been denied. Without this
basic factual claim, the plaintiffs cannot show a substantial
likelihood of success on their equal protection challenge.
Therefore, we affirm the denial of their request for a PI on their
equal protection claim.
AFFIRMED.
13
