Federal Judge Rules in Favor of Cleburne County Student Alleging Discriminatory Treatment

An African-American student who filed suit against the Cleburne County Board of Education will return to the football field after U.S. District Judge Virginia Hopkins issued an order temporarily setting aside the extended punishment given to him last February banning him from participating in any extracurricular activities for the first nine weeks of the current school year.

The order is connected to a lawsuit filed by the student in July.

In order to grant the injunction, Hopkins had to determine whether the student, Cleburne County High School senior Chad Brown, might succeed in his claim that the board discriminated against him because of his race. Hopkins declared that “the Court holds that there is a substantial likelihood of [Brown] succeeding on the merits of his equal protection claim”.

In other words, evidence presented in the hearing shows the three board members, Hope Lee, Jerry Cash, and Lonny Watson, who voted for Brown’s punishment likely did discriminate against Brown by punishing him in a different manner than two white females accused of the same code of conduct violation.

During the 2015-2016 school year, Alabama State Department of Education enrollment information showed that 91% of the students in the Cleburne County school system are white.

On August 2, Brown’s attorney, Clarence Dortch, requested a hearing to ask the judge to set aside the punishment, initially given in February but the board extended through the summer and into the first nine weeks of the 2016-2017 school year after an appeal.

After hearing evidence for six hours in federal court in Birmingham on Monday, Hopkins granted the request, finding that not allowing Brown to play football would result in “a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted”.

A high school football coach testified at the hearing that if a high school senior did not get to play football during his senior year, it could cost him the opportunity to play football at the college level.

In her order, Hopkins wrote: “If [Brown] 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.”

Brown’s father said that multiple colleges had expressed an interest in Brown’s football abilities, but due to the punishment given by the board in February, Brown had been unable to participate in any football camps through the high school during the spring and summer.

After listening to testimony and viewing evidence of how the three members of the Cleburne County board of education conducted due process hearings, Hopkins took board members to task for multiple due process violations and recommended they “reexamine” how they conduct due process hearings in the future.

What Happened and Why This Became a Federal Lawsuit

Here’s the initial article we published about Brown’s lawsuit. In the suit, Brown claimed Lee, Cash, and Watson violated his due process rights and had “arbitrarily and capriciously discriminated” against him in the punishment they levied, violating the Equal Protection clause of the U.S. Constitution. The suit alleges the punishment Brown was given by the board was more severe than white students guilty of the same offense. Three board members, Lee, Cash, and Watson, voted for the punishment Brown alleges was discriminatory.

Here’s what happened and what was said during testimony in Monday’s hearing.

On January 8, 2016, a small amount of marijuana was found in Brown’s truck on the high school campus during a routine search for drugs. A police report indicated the street value was less than one dollar.

Drug possession is a class III offense in the board’s code of conduct.

According to Cleburne County’s code of conduct, a class III offense requires immediate suspension until a hearing can be scheduled with the board of education. Board policy recommends expulsion for any student guilty of a class III offense, however the board can exercise discretion.

Brown was one of five students on the high school campus to be found in possession of marijuana as a result of that search. Brown was the only African-American student. The other four students were white.

Board members testifying at the hearing said that if students were guilty of using or possessing drugs, those students were routinely sent to alternative school.

However, if students were guilty of providing drugs to other students, the board routinely expelled those students, as a student providing drugs to other students is a danger to the student population, they explained.

A hearing was held on January 20 for all five students. The five-member elected board of education serves as the sole governing body over student hearings on class III offenses.

Three of the students, all of whom are white, were given alternative school through the remainder of the school year.

Brown and one of the white students were both expelled for the remainder of the school year.

The white student that was expelled admitted to providing drugs to other students. Brown had not been accused of providing drugs to other students nor had he admitted to doing so.

So why was Brown expelled?

An Unproven Accusation Against Brown

Board members Cash and Lee said they voted to expel Brown because they believed an unproven accusation made by a white female student, identified in court as C.M., that Brown had provided her with the marijuana she was caught with.

C.M. made that accusation during her disciplinary hearing for “swapping pills” with two other white female students on campus in December.

An investigation by the school’s principal found no evidence to support C.M.’s claim against Brown. Brown was never charged with anything in connection to C.M.’s claim.

In December, the board voted to send C.M. and a second female student to alternative school as punishment for that class III offense. The third girl withdrew from school before the hearing.

Hopkins noted the board had not followed the routine to which they testified—expelling students guilty of providing drugs to other students—in the case of C.M. and the other female, both of whom were white.

Lee explained the reason the board did not expel the two white students: the high school principal had asked for leniency for the girls, which the board granted.

However, that disparate treatment is the basis on which Hopkins based her ruling: the two white female students, guilty of what was referred to as “trafficking” during the hearing, were not expelled, while Brown, who was only accused but not found guilty of that offense, was expelled.

Though C.M.’s accusation was never proven, Cash and Lee both testified they believed C.M., and that their belief in her claim that Brown provided her with marijuana is why they expelled him at the January 20 hearing.

Neither Brown’s father nor Brown knew the board members were considering C.M.’s unproven allegation as part of their decision-making process in expelling Brown.

Hopkins saw that as a probable violation of Brown’s due process rights because the board never brought that charge in front of Brown, and Brown was never given the opportunity to deny the claim.

Brown’s father appealed the expulsion after learning that the white students had been sent to alternative school for what Brown’s father believed to be the same charge (drug possession). Brown’s father also testified he was concerned that his son was falling behind in math and other subjects while being taught at home.

The board granted his request for appeal, which was held on February 5.

Brown’s father was told by board members during that appeal that his son was guilty of providing drugs to another student. Brown’s father denied the allegation and was adamant that his son wouldn’t do that. Brown did not attend the appeal hearing.

Tapes of both the initial due process hearing and the appeal were played in court.

As a result of the appeal, Cash, Lee, and Watson voted to repeal the expulsion and send Brown to alternative school.

However, they tacked on an additional punishment: suspend Brown’s extracurricular and parking privileges through the first nine weeks of the 2016-2017 school year. That punishment was not given to any other student.

Board members still believed C.M.’s unproven allegation, they testified.

As a result of that additional punishment, Brown was unable to participate in any spring training or summer camps through the high school.

The Order

Hopkins’ order took effect immediately, and Brown is expected to participate in the first high school football game of the season on Friday.

Brown’s attorney declined to comment on Hopkins’ order, as even though the punishment has been set aside, the lawsuit continues.

Here’s Hopkins’ full order.

U.S. District Judge Virginia Emerson Hopkins order in Cleburne County lawsuit by Trisha Powell Crain on Scribd