FILED

Case 1:16-cv-01086-VEH Document 17 Filed 08/16/16 Page 1 of 17

2016 Aug-16 PM 12:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
CHAD BROWN, by and through his
Father and next friend Ricky Brown,

)
)
)
Plaintiff,
)
) Case No.: 1:16-CV-1086-VEH
v.
)
)
CLEBURNE COUNTY BOARD OF )
EDUCATION ET AL.,
)
)
Defendants.
)
)

ORDER GRANTING PRELIMINARY JUNCTION
This case came before the Court on August 15, 2016, at 9:30 a.m. for a hearing,
after notice to Defendants, on the Plaintiff’s request for a preliminary injunction.
(Motion for Temporary Restraining Order, doc. 6, which was converted by agreement
to a motion for preliminary injunction). The Plaintiff’s request arose out of his
Complaint, doc. 1, which alleged, inter alia, violations of the Plaintiff’s rights under the
14th Amendment to the United States Constitution to due process and equal protection
of law. Specifically, Plaintiff, who is African American, alleged that the Defendants had
violated those rights in disciplining him more harshly, due to his race, than comparably
situated white students. The only remaining portion of Plaintiff’s punishment that

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Plaintiff complained of at the time of the hearing was his suspension from all school
extracurricular activities, which prevented him from participating in sports, specifically,
football.1
At the court hearing, all parties appeared through counsel. The parties filed a
Joint Statement of Stipulated Facts (doc. 15) (“SSF”) and Joint Exhibits (doc. 16)
(“JEX”), all of which were received in evidence. Oral testimony under oath was heard,
and additional exhibits were admitted.
Pursuant to Rule 52(a)(2) of the Federal Rules of Civil Procedure, the Court now
makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
The Board's Disciplinary Procedures
1.

The Cleburne County Schools Code of Conduct provides that "unauthorized

possession, transfer, use or sale of drugs or drug paraphernalia (use includes using
before arrival to school or school sponsored event)" is a Class III Offense in the Code
of Discipline. (SSF 1; JEX 1).
2.

Plaintiff, currently a senior at Cleburne County High School, received a copy of

the Code of Conduct at the start of the 2015-16 school year. (SSF 2).

1

Counsel stated that the first Cleburne High School Football game will occur tonight.
Plaintiff plays “outside linebacker” on the Cleburne High School Football team.
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3.

When a student commits a Class III offense, the principal is to suspend the

student, recommend his or her expulsion, and follow due process. (SSF 3). It is the
Board’s policy for the principal to recommend expulsion. (Testimony of Valrie Bain,
Principal of Cleburne High School). A school administrator completes a Discipline
Report (signed by the student or a parent) and notifies the Superintendent (SSF 4), who
notifies the Board members that they need to hold a due process hearing for a student
disciplinary issue and sets a hearing date. (SSF 5, JEX 2).
4.

The due process for a Class III offense is a hearing before the Board of

Education in which the principal presents evidence to the Board members about the
commission of the offense and the student and his or her parents are given the
opportunity to provide any information they deem relevant. (SSF 7).
5.

The Superintendent sends a letter to the student’s parents notifying them of the

charged disciplinary violation, the date and time of the meeting, and their right to attend
and present witness testimony and evidence to be considered and their right to have
legal counsel represent them at the hearing. (SSF 6).
Allegations against Plaintiff in December 2015
6.

In December 2015, three white female students at Cleburne High School were

discovered to be “swapping” among themselves prescription pills that they brought
from home. (Testimony of Valrie Bain). The principal suspended all three students and
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recommended their expulsion. (Id.). One of the students was withdrawn from the
school by her parents. (Id.). A due process hearing was held for the other two students.
(Id.). Neither of these students was expelled. (Testimony of Hope Lee, School Board
member). The sole reason was that principal Bain asked the Board not to expel them.
(Id.). Ms. Lee does not think that “sharing marijuana” is different from “sharing
[prescription] pills.” (Id.).
7.

In addition to swapping pills, a search of C.M.’s on-school property in

December, 2015 revealed that she had a pipe with marijuana residue. (Testimony of
Valrie Bain). She said that she bought marijuana from the Plaintiff, and gave an exact
date, location, and time. (Id.). The Plaintiff denied C.M.’s accusation. (Id; SSF 8.). The
school administrators searched Plaintiff’s person, car, and locker and only found some
seeds in Plaintiff’s car. (Id; SSF 9 and 10.). The seeds were two few to determine
whether or not they were marijuana. (Id.). The Plaintiff said that other people used and
drove his car. (Id.). He was warned that anything found in his car was “on him.” (Id.).
School administrator looked at school videotape to see if it corroborated C.M.’s
accusation. (Id.). It did not. (Id.). Plaintiff’s father was notified of the accusation. (Id;
SSF 11.).
8.

During a December 2015 due process hearing for C.M., the Board learned about

C.M.’s accusation against C.M. (Testimony of Jerry Cash). The Board asked C.M.
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where she got the drugs and she said Plaintiff gave them to her. (Id.). They also learned
that Plaintiff denied C.M.’s accusation and that it was not able to be corroborated by
the school. (Id.). They also were told about the seeds found in Plaintiff’s car. (Id.).
9.

Neither C.M. nor the other remaining CCHS student involved in the pill

swapping was expelled. (Testimony of Hope Lee). The reason neither was expelled
was because principal Bain asked the Board for leniency. (Id.).
January 2016 Events and Due Process Hearing.
10.

On January 8, 2016, the Heflin Police Department in conjunction with school

administrators conducted a search at Cleburne County High School ("CCHS") for drugs
(SSF 12) and a drug dog "hit" on Plaintiff's vehicle parked in the school parking lot.
(SSF 13). A search of Plaintiff's vehicle in the school parking lot discovered marijuana
(SSF 14) and Plaintiff was arrested. (SSF 15). The street value of the marijuana
discovered was determined by the police to be $1.00. (Testimony of Ricky Brown.).
The Board did not know that value at the Plaintiff’s due process hearing. (Testimony
of Hope Lee.) They did have a picture, taken on Ms. Bain’s phone. (testimony of Valrie
Bain.). The amount found was a “personal use” amount and not a “distribution”
amount. (Id.).
11.

Ms. Bain suspended Plaintiff from school pending a due process hearing (SSF

16) and Carlton McDaniel, a CCHS Assistant Principal, completed a Discipline Report
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and contacted Plaintiff's father. (SSF 17, JEX 3). They notified the Superintendent of
the discipline and recommended the Plaintiff for expulsion pursuant to the Code of
Conduct. (SSF 18).
12.

The Superintendent notified the Board members of the need for a due process

hearing and sent Plaintiff's parents a letter dated January 8, 2016, notifying them that
the Board would hold a due process hearing on January 20, 2016. (SSF 19, JEX 4).
13.

The Board held 8 due process hearings on January 20, 2016 involving three

students at the Cleburne County Middle School (all white female) and five students at
CCHS (1 African American male, 2 white male, 2 white female). (SSF 20). In the
Board's minutes, the students are identified by their school and a number. (SSF 21, JEX
5). Plaintiff is listed as CCHS Student 1. (SSF 21).
14.

The Board held each hearing separately and each student had the choice of

having an open or a closed hearing. (SSF 22). All of the students opted for a closed
hearing. (SSF 22).
15.

With regard to Plaintiff, Board followed a script that is used in due process

hearings. The Board members received a packet of information regarding Plaintiff,
including a statement from Ms. Bain regarding the investigation, the Discipline Report,
and his school records. (Testimony of Valrie Bain).
16.

The Board heard testimony that on January 8, 2016, the Heflin Police
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Department discovered marijuana in Plaintiff's vehicle parked on school property. (SSF
23). Plaintiff admitted that the drug dog hit on his vehicle, the police found marijuana
in his vehicle, he smoked marijuana, he got the marijuana in Anniston, and he used gas
money his parents gave him to buy it. (SSF 24, 25).
17.

Board members asked him if he ever provided drugs to anyone else and he said

he did not. (SSF 26).
18.

The Board went into executive session to consider the appropriate discipline for

Plaintiff. (SSF 27). Three Board members (Defendants Lee, Cash, and Watson)
believed that Plaintiff was not only in possession of drugs on campus but also had
provided drugs to C.M., the student who was disciplined in December and they voted
to expel Plaintiff from school for the remainder of the school year. (SSF 28, 29). The
vote was three member for expulsion and two against expulsion. (SSF 30). If a students
was determined to have provided or sold drugs at school, the Board practice was to
expel the student. (Testimony of Valrie Bain). If a student was found to have merely
possessed drugs at school the Board practice was to send the student to alternative
school rather than expulsion. (Id.). This practice was not followed for the two white
pill-swapping girls. (Id.). The three Board members who voted for expulsion believed
C.M.’s December 2015 accusation that the Plaintiff sold marijuana to her. (Testimony
of Jerry Cash as expressly agreed with by Hope Lee and Lonny Watson.).
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19.

The Superintendent sent a letter dated January 21, 2016 notifying Plaintiff's

parents of the Board's decision to expel Plaintiff for the remainder of the school year.
(SSF 32, JEX 6). As an expelled student, Plaintiff could not participate in any school
activities. (SSF 33).
20.

Another CCHS student, M.N. (identified in the Board minutes as CCHS Student

2), was also found to have had drugs in his vehicle on January 8, 2016. Following his
due process hearing on January 20, 2016, the Board voted to send him to the alternative
school for the remainder of the year. The Board members had no information that M.N.
was providing drugs to other students, so they punished him as they punished other
students that night who were in possession or under the influence.
21.

After the due process hearings on January 20, the Board members believed all

8 students were in possession of or under the influence of drugs on school property but
only believed that three of the students (Plaintiff, CCMS Student 2 and CCHS Student
3) had provided drugs to others. (SSF 31)2. The Board voted to expel all three of those
students. The other five students (3 white males, 2 white females) were sent to the
alternative school. The line the Board drew was that they punished students more
harshly if they believed the student was providing drugs to other students. Below is a
table reflecting the January 20 decisions:
2

Orally corrected at hearing.
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Student

Race

Punishment

CCMS Student 1 W

Alternative school until 4/20/16

CCMS Student 2 W

Expelled remainder of 2015-16 school year

CCMS Student 3 W

Alternative school until 4/20/16

CCHS Student 1

AA

Expelled remainder of 2015-16

CCHS Student 2

W

Alternative school remainder of 2015-16

CCHS Student 3

W

Expelled 1 calendar year

CCHS Student 4

W

Alternative school remainder of 2015-16

CCHS Student 5

W

Alternative school remainder of 2015-16
Plaintiff's Appeal

22.

Plaintiff and his father requested an appeal of the expulsion. (SSF 34). Although

the Board's process does not provide for appeal and the Board regularly denies such
requests for appeal, Mr. Brown addressed the Board in executive session on February
1, 2016, after which, the Board voted to grant the appeal. (SSF 35, JEX 7).
23.

The Board held the appeal on February 5, 2016. (SSF 36). At that hearing, Ms.

Bain presented information to the Board, including her statement of the January 8
events, a photograph of the marijuana taken from Plaintiff's vehicle, her statement
regarding the investigation of C.M.'s allegations in December 2015, the Discipline
Report, and Plaintiff's school records. The Board explained to Mr. Brown that another
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student said Plaintiff had provided her with drugs. (SSF 37).
24.

Mr. Brown asked that the Board reconsider the decision because Plaintiff's

education was the most important thing and he was concerned about his ability to keep
up with Plaintiff's school work through home schooling. (SSF 38). Mr. Brown asked
the Board to consider sending Plaintiff to the alternative school and perhaps suspend
his driving privileges. (SSF 39).
25.

The Board considered Mr. Brown's request to alter Plaintiff's discipline. (SSF

40). The Board voted 3 to 2 to change Plaintiff's discipline from expulsion for the
remainder of the school year to assignment to the alternative school for the remainder
of the school year and suspension of his privileges for the first nine weeks of the
following school year. (SSF 41, JEX 8). Two members of the Board testified at the
hearing that this punishment was “different but equal” to the punishment that the
Plaintiff received after the first hearing.
26.

The Board notified Plaintiff and his parents of this decision on February 8, 2016.

(SSF 42, JEX 9).
27.

If the Plaintiff had not appealed the original decision, and had accepted

expulsion, his punishment would have ended on May 20, 2016–the last day of
school–and he would have immediately been able to resume normal school activities
over the summer, and into the fall of the following year.
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28.

The allegation that Brown had been providing drugs to others enhanced his

punishment. However, Brown was never given notice, either before his original due
process hearing or before his appeal hearing, that he was being accused of
selling/providing drugs to other students and that that allegation would impact his
punishment.
29.

At neither of his hearings did Brown have an opportunity to cross examine C.M.,

his accuser.
30.

The plaintiff is an exceptional football player. The imposition of the discipline

against him will cause him to miss most, if not all, of his high school football season.
31.

The Plaintiff has been recruited by colleges. Missing his senior year of high

school football will adversely affect his chances of receiving a scholarship to play
football. If the Plaintiff does not receive a scholarship to play football, he will, at the
very least, have a difficult time paying for college, and, at worse, will not be able to
attend college.
Conclusions of Law
1.

The Plaintiff seeks a Preliminary Injunction

directing Defendant[] Cleburne County Board of Education to refrain
from enforcing their amended decision of February 8, 2016 to wit: [“]All
privileges including parking, athletics, and all extracurricular activities
will be suspended for the first 9 weeks of the 2016-2017 school year.”
(Doc. 6 at 1).
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2.

It has been noted:
The decision to grant or deny a preliminary injunction “is within the
sound discretion of the district court....” Palmer v. Braun, 287 F.3d 1325,
1329 (11th Cir. 2002). This court may grant a preliminary injunction only
if McClellan demonstrates each of the following prerequisites: (1) a
substantial likelihood of success on the merits; (2) a substantial threat
irreparable injury will occur absent issuance of the injunction; (3) the
threatened injury outweighs the potential damage the requested injunctive
relief may cause the non-moving parties; and (4) the injunction would not
be adverse to the public interest. Palmer, 287 F.3d at 1329; McDonald's
Corp. v. Robertson, 147 F.3d 1301, 1306 (1998); Cate v. Oldham, 707
F.2d 1176 (11th Cir. 1983); Shatel Corp. v. Mao Ta Lumber and Yacht
Corp., 697 F.2d 1352 (11th Cir. 1983). “In this Circuit, [a] preliminary
injunction is an extraordinary and drastic remedy not to be granted unless
the movant clearly established the burden of persuasion as to the four
requisites.” McDonald's, 147 F.3d at 1306 (internal quotations omitted);
All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887
F.2d 1535, 1537 (11th Cir. 1989) (a preliminary injunction is issued only
when “drastic relief” is necessary); Texas v. Seatrain Int'l, S.A., 518 F.2d
175, 179 (5th Cir. 1975) (grant of preliminary injunction “is the exception
rather than the rule,” and movant must clearly carry the burden of
persuasion on each of the prerequisites).

McClellan v. Jones, No. 2:16-CV-363-WHA, 2016 WL 4157212, at *1 (M.D. Ala.
July 8, 2016), report and recommendation adopted, No. 2:16-CV-363-WHA, 2016
WL 4149998 (M.D. Ala. Aug. 2, 2016).
2.

Federal law provides that
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
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shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress[.]
42 U.S.C.A. § 1983 (“Section 1983").

There has been no argument that the

Defendants are not “persons” under Section 1983. Accordingly, for the purposes of
awarding relief at this stage of the proceedings, the Court holds that they are. The
Court also holds that the actions taken by the Defendants in this case were taken under
color of state law.
2.

The First Amendment to the United States Constitution provides: “Congress

shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of
grievances.” U.S. Const. amend. I.
3.

Section 1 of the Fourteenth Amendment to the United States Constitution

provides, in pertinent part: “No State shall . . . deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, Section 1.
4.

Although there is no due process claim in the Complaint, the issue was tried by

implied consent of the parties. See Fed. R. Civ. P. (b)(2) (“When an issue not raised
by the pleadings is tried by the parties' express or implied consent, it must be treated

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in all respects as if raised in the pleadings.”). Regardless, although the discipline in this
case prevents the Plaintiff from playing football, binding precedent makes it clear that
this type of injury simply does not constitute a cognizable due process claim. Mitchell
v. Louisiana High School Athletic Ass'n, 430 F.2d 1155, 1157–58 (5th Cir.1970)
(footnotes omitted) (emphasis added); see also, J.A. ex rel. Swain v. Talladega City
Bd. of Educ., 41 F. Supp. 3d 1302, 1312 (N.D. Ala. 2014).
5.

Count One of the Complaint alleges that the Defendants violated the Plaintiff’s

First Amendment right to freedom of speech by retaliating against him for appealing his
case to the Board. (Doc. 1 at 13).
6.

Count Two alleges that the Defendant’s punishment of the Plaintiff violated his

right to equal protection. It has been noted:
To establish an equal protection claim, a plaintiff must initially show that
he or she was treated differently from other individuals similarly situated.
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249,
3254, 87 L.Ed.2d 313 (1985) ("The Equal Protection Clause of the
Fourteenth Amendment commands that no State shall ‘deny to any person
within its jurisdiction the equal protection of the laws,' which is essentially
a direction that all persons similarly situated should be treated alike.").
James By & Through Singleton v. Tallassee High Sch., 907 F. Supp. 364, 367 (M.D.
Ala. 1995), aff'd sub nom. James v. Tallassee High Sch., 104 F.3d 372 (11th Cir.
1996). “Although there is no federal constitutional right to play football, there is a
federally enforceable right under the equal protection clause not to be denied eligibility,
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by state action, to play football solely because of the color of the player's skin. Title 28
U.S.C. § 1343, more commonly known as the Civil Rights Act of 1964.” Paschal v.
Perdue, 320 F. Supp. 1274, 1274–75 (S.D. Fla. 1970).
7.

In the instant case, the evidence shows that three Caucasian females admitted to

sharing prescription medications at school over some period of time, that no
recommendation was made at the hearing (for the two who remained CCHS students)
that they be expelled, that the principal of CCHS asked that they not be expelled, and
that they were not expelled. By contrast, the Plaintiff, who was accused of providing
drugs to one other student, on one occasion, and who is African American, was
recommended for expulsion, and was in fact expelled originally. Although his
punishment was later changed, there is evidence that the new punishment is either
harsher than expulsion (testimony of Valrie Bain) or at best is “different but equal” to
expulsion (Testimony of Jerry Cash; testimony of Hope Lee). Accordingly, the Plaintiff
was punished more harshly than similarly situated Caucasian students. Further, as this
court noted during the hearing, the Court finds that the Caucasian girls engaged in even
worse conduct than the Plaintiff, in that they admitted getting something of value by
trading pills with each other, on school property, whereas the Plaintiff was merely
accused of giving marijuana to someone. Further, it is the Court’s distinct impression
that the Caucasian females had been doing this over a period of time and there is no
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evidence that Mr. Brown had even been accused of having provided any drugs on
school property other than the one time identified by C.M.’s accusation. For these
reasons, the Court holds that there is a substantial likelihood of the Plaintiff succeeding
on the merits of his equal protection claim.
The Court holds that there is a substantial threat that the plaintiff will suffer
irreparable injury if the injunction is not granted. The Board’s policy or practice is to
punish students this harshly only for distribution, as opposed to mere possession, of
drugs on school property. By being kept from playing sports or participating in other
extracurricular activities for the first nine weeks of school, which is a punishment at
least equivalent to, or even harsher than, expulsion, the Board’s ongoing discipline
tarnishes the Plaintiff as a drug dealer. Thus, the Plaintiff’s very public ban from
participating in football continues to tarnish his reputation in a manner that is difficult
to quantify and is therefore not reimbursable by money.
The court holds that the threatened injury to the Plaintiff outweighs the
threatened harm that the injunction may do to the Defendant Board. Given the many
problems with the way this matter was handled, the Board should reexamine how they
handle their due process hearings and the injunction the court will enter will actually
encourage it to do so.
The court holds that there is no risk to the public that will come from granting
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the preliminary injunction.
Conclusion
Based on the foregoing, it is hereby ORDERED, ADJUDGED, and
DECREED that the Plaintiff’s motion for Preliminary Injunction is hereby
GRANTED. The Cleburne County Board of Education is hereby ENJOINED, until
a final order is entered in this case, from enforcing the Board’s amended decision of
February 8, 2016 to the extent that it provides that: [“]All privileges including parking,
athletics, and all extracurricular activities will be suspended for the first 9 weeks of the
2016-2017 school year.”
DONE and ORDERED this 16th day of August, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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