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June 7, 1994

RAYMOND and BONNIE BAXTER, as parent and next friend of PAUL BAXTER, a minor, Plaintiffs,
THE ROUND LAKE AREA SCHOOLS, COMMUNITY UNIT SCHOOL DISTRICT #116, and MARY L. DAVIS, Superintendent of Round Lake Area Schools in both her personal and professional capacity, Defendants.


The opinion of the court was delivered by: JAMES F. HOLDERMAN

JAMES F. HOLDERMAN, District Judge:

 Plaintiffs Raymond and Bonnie Baxter, as parents of Paul Baxter, a fifteen year old, have brought this action against defendants The Round Lake Area Schools and Superintendent Mary Davis pursuant to 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. §§ 1331 and 1343, alleging that defendants have violated Paul Baxter's procedural and substantive due process rights under the Fourteenth Amendment by employing unfair procedures in Paul Baxter's suspension and expulsion hearings from Round Lake High School. In addition, plaintiffs claim that defendants have violated section 10-22.6 of the Illinois School Code, 105 ILCS 5/10-22.6, Ill. Rev. Stat. ch. 122, para. 10-22.6, by not providing plaintiffs with proper notice of his suspension and expulsion hearings.

 In an earlier opinion in this case, Baxter v. The Round Lake Area Schools, No. 93 C 6864, 1993 U.S. Dist. LEXIS 16396 (N.D. Ill. Nov. 17, 1993), this court denied plaintiffs' motion for a temporary restraining order. Both defendants have now filed motions to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a valid claim upon which relief may be granted. After reviewing the materials filed in connection with defendants' motions to dismiss, this court determined in an order dated May 3, 1994, that because both parties have submitted materials outside the pleadings, defendants' motions to dismiss should be treated as motions for summary judgment under Federal Rule of Civil Procedure 56. *fn1" For the reasons stated below, defendants' motions to dismiss considered as motions for summary judgment are granted.


 On September 23, 1993, Paul Baxter was involved in an altercation with another student in the school building and sustained injuries. Two teachers were also injured in the process of attempting to stop the fight. Eventually, a third teacher pulled Paul from the fight and escorted him to the principal's office to be questioned about what occurred.

 A school dean, Mr. Bending, *fn2" spoke with both students involved in the fight and with the teachers who tried to stop it. *fn3" The dean called Paul's father and asked him to come to the school to discuss his son's situation. The dean also called the police, apparently due to the serious nature of the altercation and the injuries involved. Paul was questioned for a second time by both the dean and the police. The dean decided to suspend Paul from school for 10 days beginning September 23, 1993. Paul and his father were given a copy of behavior report filed by the dean after the meeting. The report clearly states that Paul is suspended from school for 10 days and that the administration requests a conference with Paul's parents on September 27, 1993, to further discuss their son's situation. On the back of the behavior report is a statement regarding the rights of the parents of a suspended student under Illinois law. This statement clearly notified Paul's parents of their right of review of Paul's suspension with an appointed hearing officer.

 On September 27, 1993, the school held a suspension hearing for Paul. That hearing was conducted by a school-appointed hearing officer. As stated above, the school provided Raymond Baxter, Paul's father, with written and oral notice of this hearing at the meeting with the school's dean just following Paul's fight on September 23rd. Paul and his mother attended the September 27th hearing at which Paul was asked to relay his version of the September 23rd altercation. Also in attendance at the September 27th hearing were Mr. Bending, the dean, and Mr. James Briscoe, the school principal.

 At the September 27th hearing, Paul was provided the opportunity to tell the hearing officer his version of the events which led to the fight and to explain what happened when the teachers tried to stop the fight. The principal then read the teachers' reports describing the event. The hearing officer decided to uphold Paul ten-day suspension and to recommended that the school transfer Paul to an alternative educational facility for the remainder of the semester or begin the expulsion process. The hearing officer in the suspension hearing report stated that the school should wait for Mrs. Baxter's decision regarding whether the school should transfer Paul to the alternative educational facility at the end of Paul's suspension period or begin the expulsion process. *fn4"

 After the conclusion of the ten-day suspension period, because the school had not heard from the Baxters regarding their decision, Mr. James Prault, Round Lake Area Schools' Director of Pupil Services, notified the Baxters in a letter dated October 12, 1993, that Paul's suspension was over on October 7, 1993 and that Paul had been assigned to afternoon session at the alternative educational facility. In addition, the letter stated that Paul's absences from school beginning October 8, 1993 are considered to be unexcused by the school.

 On October 13, 1993, the Superintendent of the Round Lake Area Schools, Mary Davis, received a letter from plaintiffs' attorney requesting an appeal of the hearing officer's September 27, 1993 decision regarding Paul's suspension and the hearing officer's recommendations regarding the transfer to the alternative educational facility.

 The expulsion hearing was held on November 2, 1993. Paul, his parents, and their attorney all attended the expulsion hearing. *fn6" The tape recording of the hearing provided to the court indicated that the hearing began with the hearing officer asking Paul background questions and introducing the parties in attendance. The witnesses were then placed under oath. Paul was the first to testify to his version of what occurred on September 23rd. The hearing officer asked Paul to describe what happened, but plaintiffs' attorney protested because she stated that she wanted to ask all the questions of her witnesses. Plaintiffs' attorney also stated that she would answer the hearing officer's questions on plaintiffs' behalf. Plaintiffs' attorney then read a statement on Paul's behalf stating that Paul did not realize he was being suspended after the September 23rd meeting with the school dean immediately following the fight. Plaintiffs' attorney also stated that Paul did not realize the September 27th hearing was a suspension hearing. The hearing officer told plaintiffs' attorney that at that point in the hearing he preferred to first discuss the details surrounding the fight and then they would proceed to discuss the suspension itself and the procedures employed by the school.

 The hearing officer attempted to question Paul, through plaintiffs' attorney, about what took place on September 23, 1993. Plaintiffs' attorney refused to answer the hearing officer's questions about the fight itself. ...

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