Wayne v. Shadowen

¶1In this civil rights action initiated under 42 U.S.C. § 1983, the plaintiff-appellants, Robert and Judy Wayne, a married couple (collectively “the Waynes” or “the plaintiffs;” individually “Robert” and “Judy,” respectively), have assailed the district court’s grant of summary judgment, anchored in qualified immunity, in favor of defendant-appellees Kenneth Shadowen (“Shadowen”) and Terrell W. Powell (“Powell”).1 The Waynes’ complaint alleged that Powell, as the principal of Benton Middle School (“Benton”), and Shadowen, as the superintendent of the Marshall County (Kentucky) School District (Benton’s parent district) (“the District”), have deprived their minor son, Nicholas Jason Wayne (“Nick”), of his constitutionally-protected equal protection and due process rights while enrolled as a student at Benton, by placing him, as a disciplinary measure, in a special correctional classroom environment, for a substantial period, in the absence of a predicate formal hearing, and in violation of state law and school board policies. Nick’s punishment was triggered by his repeated sexual harassment of a female classmate, in writing, using obscene and offensive language, even when adjudged by prevailing contemporary ultra-permissive standards of acceptable or excusable adolescent behavior.

¶2Nick, born on March 17, 1982, had exhibited troublesome aberrant character and behavioral traits since a tender age. The record of this youth’s pattern of serious misconduct at Benton commenced on or about April 14, 1995 when, while a thirteen-year-old seventh-grader, he disrespectfully expressed anger towards cafeteria staff members because he deemed his spaghetti to be unacceptably cold or lumpy. Nick demanded its immediate substitution with cost-free alternate fare. Because his impulsive whim was not instantly gratified, Nick shortly engaged in a tantrum. That display culminated in a public confrontation between Principal Powell and the boy. Powell characterized Nick’s outburst as “disruptive, inattentive, disrespectful, sarcastic, and insubordi- ■ nate.”

¶3That incident, coupled with a recent series of reports from Nick’s teachers which chronicled a pattern of classroom misbehavior, and preying upon weaker students by verbal taunts and physical assaults, earned him a ten-day stint in Benton’s “In-School Suspension Classroom Program” (“ISSC Program”), his first assignment to that corrective classroom environment.2 The Marshall County Board of *275Education (“the Board”) had created the ISSC Program by official resolution adopted on August 10, 1992, to meet the unique supervisory and disciplinary requirements of the rising number of behaviorally deviant pupils which have plagued many American educational districts in recent years. Under the Board’s policies, a finding by the principal that a student had breached an official written school policy could trigger an assignment to the ISSC Program. As developed below, those policies simply articulate universally understood norms of acceptable student conduct.

¶4The Board’s August 10, 1992 resolution specified that the duration of a pupil’s detention within the ISSC Program could range from a minimum of three days, to any greater number of days, as mandated by the principal in his sole discretion. Nonetheless, as a matter of regular policy and practice, any student’s assignment to the ISSC Program for more than twenty days was reviewed by the District’s superintendent. Students relegated to the alternative educational setting of the ISSC Program are segregated from the District’s mainstream responsible, well-mannered, and non-disruptive schoolchildren to safeguard the effectiveness of the scholastic environment for those diligent and obedient youngsters; as well as to discipline, punish, control, and correct the miscreant element of the student population. Delinquent schoolchildren from grades six through eight remain together in the same classroom for the entire school day. However, each child committed to the ISSC Program is nevertheless required to complete daily instructional tasks assigned by his or her ordinary classroom instructor for each academic subject. The student’s ordinary classroom teachers review and evaluate his or her work in the same manner as the product of all other students enrolled in the same regular class. The ordinary classroom instructors maintain regular direct communications with their students who are assigned to the ISSC Program.

¶5At any given moment during any school day, a single certified teacher presides over the ISSC. The classroom proctor’s primary duty is to maintain order among the unruly juvenile delinquents assigned to that classroom, which typically numbers approximately five or six youngsters, but which may rise to as many as twelve individuals, on any given day. Nevertheless, the educator assigned to supervise the ISSC Program gives individual attention to each student in the classroom, is available at all times to answer questions or offer guidance regarding a student’s schoolwork, and generally ensures that the classroom environment remains conducive to study and learning, while each pupil completes his or her individual course assignments.

¶6Apparently undaunted by his April 1995 ten-day introduction to the ISSC Program, Nick promptly gained re-assignment to that alternative classroom for three days very early in his eighth grade year, on or about September 25,1995, after writing an obscene and humiliating note to a female classmate, Brandi Edwards (“Brandi”). That vulgar and hurtful missive stated:

Dear Brandi,

Hello you stupid bitch. You are a fucking idiot. I do not like your stupid goody goody ass. You act so fucking stupid. The only reason I thought you liked me was because Kristin told me you did you dumb slutty bitch. So go fuck your dad or something.

Sincerely yours, you slutty bitch,

Nicky Wayne

¶7Although the Waynes did not protest Nick’s consequent three-day referral to the ISSC Program (nor had they opposed his earlier April 14, 1995 ten-day place*276ment in that program for acting out in the lunchroom),3 they evidently neglected to implement, at any time, any effective affirmative parental sanction designed to reinforce the school administration’s discipline, so as to deter future grave misbehavior by their errant offspring,4 other than short periods of mobility restriction and suspension of certain household privileges commonly known as “grounding.”

¶8Nick, apparently encouraged by the negative attention which was attainable by transgressing school regulations anchored in foundational social rules, standards, and conventions, and fortified by the consistent lesson of his historic experiences, at all times reinforced by his parents, that no serious adverse consequences would follow his impingement of those well-understood universal moral strictures, elected, on January 24, 1996, to escalate, to the next level, his personal challenge of the toleration limits of his school’s authority figures, as well as to test the official indulgence of his disdain for the dignity of a fellow human creature. On that day, Nick handed his prior victim, Brandi Edwards, a second iniquitous communique, which, unlike his disparaging note of the previous semester, was not merely abusive and offensive, but which transgressed all boundaries of self-restraint, civilized propriety, and ordinary decency. That “letter,” composed in the voice of a third person, recited:

Dear Brandi,

You ought to hear what I have been telling Nicky what [sic] I am going to do *277to you. Told him I was going to make wild monkey love to you.

I said I was going to bend you over and spank you till your nice fine ass was red and then I will spank it some more. Then wham I just stuck it in so hard and deep. You will like it so much that you will be praying to the good lord above that you won’t pass out before it is over. Then I will make you get on your knees and suck on my long heavy dick.

Your secret

Lover

?

¶9The following day, January 25, 1996, Nick strove to surpass the nadir proximately achieved by his most recent performance by traumatizing the hapless Brandi with a third message. That handwritten pornographic note, on this occasion drafted in the first person, stated:

Dear Brandi,

I want to suck your large feminine tits until they are red and your hard nipples are nice and juicy. Then I will lick you all the way down to your deep never ending furry taco. Then I will eat you out like you have never been before. Then I will bend you over and make wild monkey love to you. I will do fast and hard like I know you like it, then I will gradually slow down until you are covered with my cremy [sic] cum [sic]. Then I will cum [sic] in your mouth and make you swallow it like a good girl. Then I will fuck you some more just for the hell of it. You will be [illegible] you will want me to keep fucking you all night long and all the next day. Then this is where I leave. See ya later sweet thing.

Your secret Lover,

?

¶10Later that same day, January 25, 1996, the distraught young girl alerted her guidance counselor that Nick had delivered those offensive notes to her. The counsel- or immediately notified Principal Powell, who immediately interviewed Brandi. Powell observed that the harassing notes had caused her severe distress. Immediately thereafter, Powell questioned Nick about Brandi’s accusations. The lad confessed to delivering the two indecent letters to Brandi, but he denied having written them. Nick testified that he told Powell that he had only partially read the second of the two notes. He identified fellow student Lance Warmath (“Lance”) as the author of both letters. Powell then interrogated Lance in Nick’s presence. Lance admitted writing, at Nick’s request, the first of the two notes; but he disavowed any knowledge of the second writing. The overall intelligence gathered by Powell’s investigation at this stage conclusively established that, even if Nick had not written the notes, he at minimum knew their general nature and contents prior to delivering at least the second of them to the targeted female.5

¶11*278Prior to determining a punishment appropriate for Nick’s impudent transgressions, Powell, by telephone, personally invited Robert Wayne to meet with him at the school to discuss his son’s antisocial behavior. During their ensuing meeting of the same day (January 25, 1996), Robert excused his wayward progeny’s effrontery by protesting, in effect, that because Nick claimed that he had not physically transcribed the profane words onto paper, he should be absolved of any significant accountability for his admitted complicity in the torment of the young girl. In response, Powell explained to Robert that Nick’s conceded delivery of the pornographic letters to an innocent young girl greatly exceeded the boundaries of common adolescent gender-based taunting or a sophomoric prank, and warranted severe punishment and corrective action, a concept which the boy’s father refused to accept.6 Powell advised Robert that Nick would incur immediate suspension for ten school days from Benton, and that the Waynes could appeal his disciplinary decision to Superintendent Shadowen.

¶12On January 30, 1996, Powell interviewed additional students reported to have knowledge of the incidents at issue.7 The next day, January 31, 1996, Powell and Shadowen conferred together about Nick’s future status at Benton, given the gravity of his most recent offenses, matched with his repeatedly demonstrated non-comprehension of proper behavioral boundaries, absence of self-discipline, contempt for authority, and disrespect for the rights of others. After reviewing Nick’s eventful disciplinary record, the two academicians resolved that, upon the February 13, 1996 expiration of Nick’s ten-day suspension, he would be assigned to the ISSC Program until the close of the scholastic term in late May 1996. However, Nick would be afforded a “fresh start” at the commencement of his ninth grade year, in Autumn 1996.

¶13During Nick’s ten-day suspension, the Waynes requested a meeting with Shadow-en, Powell, and school board chairman Keith Travis (“Travis”). The District arranged that meeting for February 7, 1996, at 8:00 p.m., to be conducted at the District’s central office. On February 5, 1996, Powell relayed that information, via telephone, to the Waynes. Robert then informed Powell that he and his wife might not attend, irrespective of the scheduling of that meeting solely in compliance with the Waynes’ request, but that they would *279timely notify Shadowen by telephone if they elected not to appear at the meeting. The Waynes failed to attend the February 7. 1996 meeting, after telephoning Travis, but not Shadowen or Powell, to report that they would not appear.8

¶14On February 7, 1996, Shadowen drafted a letter to the Waynes by which he notified them of the final decision jointly made by he and Powell regarding their son, namely that, following the exhaustion of his ten-day suspension term, he would complete the eighth grade in the ISSC Program, and would be required to attend regular counseling sessions.9

¶15Upon the February 13, 1996 lapse of Nick’s ten-day suspension term, and thereafter, he failed to report to Benton. Powell unsuccessfully attempted to telephone the Wayne residence on February 13, 1996, and each school day thereafter, to express concern about Nick’s prolonged truancy. Finally, on February 20, 1996, Powell reached Judy Wayne. She informed Powell that Nick was not truant, that he was at home, and that they (the Waynes) were “taking care of it.” Several days later, Powell learned that the Waynes had enrolled Nick in a nearby parochial instructional institution, St. Mary’s School, when that academy requested Nick’s student records. The Waynes had not bothered to formally withdraw their son from the public school system, nor had they observed minimum standards of decent courtesy by initiating notice to Benton or the District that Nick would no longer be attending classes in the local common schools.10

¶16On January 7, 1997, the Waynes initiated civil rights litigation under 42 U.S.C. § 198311 against Powell and Shadowen, as *280well as each individual member of the school board. Revealingly, the Waynes did not request restoration of their son to the status of a mainstream student within the Marshall County public school system;12 rather, they demanded a monetary payoff, including allegedly “compensatory” damages, punitive damages, and attorney fees.13 The Waynes’ complaint alleged that the defendants, as state actors,14 had deprived Nick of his equal protection and due process rights safeguarded by the Fourteenth Amendment to the United States Constitution,15 as well as the Kentucky Constitution.16

¶17*281Following discovery, including the depositions of twenty-six witnesses, the defendants moved for summary judgment under Fed.R.Civ.P. 56,17 anchored in the defense of qualified immunity.18 The district court *282dismissed the case against the five individual members of the school board, namely defendants Keith Travis, Mike Wyatt, J.P. Lyles, Eddie Jones, and Randy Travis, based upon the plaintiffs’ stipulation that those defendants were entitled to qualified immunity as a matter of law. Moreover, overruling the Waynes’ opposition, the presiding judge also granted summary judgment to defendants Powell and Shadowen, ruling that, on the instant discovery record, those defendants were equally protected against the subject federal civil rights lawsuit by qualified immunity.19 The plaintiffs have appealed only the district court’s March 30, 2000 award of summary judgment to Powell and Shadowen.

¶18“In performing the qualified immunity analysis, the court must initially determine if a plaintiff possessed a constitutional right that had been invaded.” Haverstick Enterprises, Inc. v. Financial Federal Credit, Inc., 32 F.3d 989, 994 (6th Cir.1994) (citation omitted). If the alleged violation of the plaintiffs constitutional right did not occur, the defendant is entitled to immediate judgment; whereas if the alleged constitutional violation did occur, or may have occurred, the court should proceed with the qualified immunity inquiry. Id. at 995.

¶19As its seminal analytic point of departure, this reviewing court emphases that no child in America, irrespective of any particular status or condition, possesses any affirmative federal constitutional entitlement to a publicly-funded, tuition-free education. Papasan v. Attain, 478 U.S. 265, 284, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (remarking that public education “is not among the rights afforded explicit protection under our Federal Constitution.”) (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)); Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (“Public education is not a ‘right’ granted to individuals by the Constitution.”) (citing *283Rodriguez, 411 U.S. at 35); see also Goss v. Lopez, 419 U.S. 565, 572, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

¶20Bather, state-sponsored, universally available, tuition-free primary through secondary instruction for school-aged residents is a “police power” matter largely reserved, in the American federal system, to the states and their subordinate administrative arms, branches, and instrumentalities, including municipalities, counties, and local school districts. See generally Goss v. Lopez, 419 U.S. 565, 578, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. By and large, public education in our Nation is committed to the control of state and local authorities.”) (ellipse omitted) (quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968)); Brown v. Board of Education of Topeka, 347 U.S. 483, 489-93 & n. 4, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (exploring the evolution of free public education in the United States into “perhaps the most important function of state and local governments.”). “When social or economic legislation is at issue,” including state laws or actions within the traditional “police power” realm involving promotion of community health, safety, welfare, and morals, the Constitution affords the states and their agents “wide latitude.”2037712, Inc. v. Ohio Department of Liquor Control, 113 F.3d 614, 622 (6th Cir.1997) (citations omitted).

¶21However, if a state elects to furnish free compulsory public education to any of its citizens (as does Kentucky),21 it must do so in a manner, respecting all of its residents, which comports with basic Fourteenth Amendment equal protection and due process strictures. See Brown, 347 U.S. at 493 (“Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”); Goss, 419 U.S. at 572-75 (explaining that, when state law has guaranteed access to a free public education, a beneficiary of that statutory entitlement may be denied that right only if the state effected that deprivation in conformity with due process requisites).

¶22The Waynes’ confused equal protection argument appears to be anchored in the contention that the defendants unjustifi*284ably denied Nick the equal enjoyment of a “free, appropriate public education”22visa-vis his peers by enrolling him in the ISSC Program for the final four months of the 1995/96 school year. “The Equal Protection Clause requires public institutions [including public schools] to ‘treat similarly situated individuals in a similar manner.’ ” Buchanan v. City of Bolivar, Tenn., 99 F.3d 1352, 1360 (6th Cir.1996) (brackets added) (quoting Gutzwiller v. Fenik, 860 F.2d 1317, 1328 (6th Cir.1988)). “In opposition to a motion for summary judgment, it is plaintiff who possesses the burden of demonstrating that the defendants treated similarly situated individuals in a disparate manner.” Id. at 1360 (citation omitted).

¶23In the case sub judice, the Waynes have primarily contended that, following the expiration of Nick’s ten-day suspension, he should not have been treated substantially different than the run-of-the mill student at Benton. However, Nick patently was not “similarly situated” to the typical student at Benton. Rather, at minimum, Nick posed (1) unique disciplinary and control challenges to the school’s administrators and educators; (2) an extraordinary menace to the psychological, and perhaps physical, well-being of at least one fellow student (Brandi Edwards); and (3) a singular threat to the District’s financial soundness by exposing it to potential litigation and consequent monetary losses if it (the District) had not taken swift and sure corrective and/or preventative action in light of Nick’s sexual harassment of a classmate.23

¶24*285The plaintiffs have produced no evidence that the insolence, rude disruptiveness, unabashed defiance, and/or callous offense to the moral dignity of a fellow human being, which have characterized Nick’s pattern of misbehavior at Benton, typifies the conduct of the average mainstream student at that institution. More specifically, the plaintiffs have not produced evidence that any Benton student who had sustained a lesser penalty than the January 1996 corrective measures imposed upon Nick had ever handed a thirteen-year-old female schoolmate even one, let alone two, abusive pornographic notes. Shadowen testified that, prior to the subject incidents, several Benton students other than Nick had completed a school year within the ISSC Program, and a few were so assigned at the request of the subject child’s parents. Powell corroborated that testimony, and also recalled that at least one pupil had remained in the ISSC Program from November until the school year’s end the following May, a considerably longer duration than Nick’s February-to-May assignment to that alternative educational environment.

¶25Furthermore, the complainants’ protest that “the educational opportunities for Nicky in the ISSC were ‘significantly different from or inferior to’ the educational opportunities he was receiving in the regular classroom,” in a constitutionally unjustifiable manner, was unsupported.24 Kentucky law obligated the District to supply Nick with “a proper and an adequate education.” However, state law did not entitle Nick to the best possible education attainable, nor to instruction administered under ideal conditions, nor to academic opportunities which conformed to any self-acclaimed expert’s subjective ideal vision of a perfect education.

¶26After construing all admissible record evidence most favorably for the plaintiffs, including their allegations of imperfections in the ISSC Program, it cannot be gainsaid that, given Nick’s unique circumstances, which he had solely created by his volitional commission of harassing misdeeds ranging from impertinent contempt of authority to the malicious torment of a callow girl, the Waynes cannot prove that the education available to Nick within the *286ISSC Program environment would not have been “proper and adequate.”25 Accordingly, Nick would have received everything by way of a free appropriate education which the state, by its laws, had promised him.

¶27In their reply brief, the Waynes belatedly emphasized that Lance War-math, the student who Nick had claimed transcribed the two foul narratives of January 1996, incurred only four days in the ISSC Program for his contribution to the harassment of the female pupil. However, “issues raised for the first time in a reply brief are not properly before this court.” Grider v. Abramson, 180 F.3d 739, 750 n. 14 (6th Cir.) (brackets and citation omitted), cert. denied, 528 U.S. 1020, 120 S.Ct. 528, 145 L.Ed.2d 409 (1999).

¶28Moreover, even if the plaintiffs had timely advocated Lance’s punitive circumstances as an averred comparable, that effort would have been unavailing. Lance testified that he had scribed only the first of the two January 1996 letters, that he had done so at Nick’s behest, and that Nick had dictated its contents to him. At any rate, even if Lance rather than Nick had been the primary instigator of the harassment, the fact that Nick had delivered the distasteful notes to Brandi would rationally justify a harsher punishment for Nick, as the damage for which the boys were punished was done when that smut was given to its intended victim. Moreover, Lance’s testimony that he had incurred two days in the ISSC Program during the previous school year on an isolated vandalism charge fell substantially short of evidence that Lance’s overall record of disciplinary incidents was comparable, in numerosity, proximity, *287and/or severity, to Nick’s compilation of prior turpitude-infested misdemeanors. Hence, material distinctions been Nick and Lance existed, which rationally justified a comparatively harsher sanction against Nick.

¶29Thus, the plaintiffs have failed to produce sufficient evidence which could lead a rational fact-finder to conclude that any student similarly situated in “all relevant respects” to Nick had received comparatively favorable disparate treatment from the defendants. See Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).

¶30The plaintiffs’ alternate due process theory is similarly ill conceived.26 Beyond dispute, Nick had a Kentucky law property right to “a proper and an adequate education” at public charge, and a liberty interest in his reputation and good name, which rights could not be abridged by the defendants without predicate conformity to proper state-created procedures. In turn, those official procedures were required to satisfy the minimum judicially-fashioned federal due process standard of notice and an opportunity to be heard prior to an official deprivation of a state-created property or liberty interest. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-42, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Goss v. Lopez, 419 U.S. 565, 572-84, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

¶31Kentucky legislation empowers local school boards to “formulat[e] a code of acceptable behavior and discipline to apply to the students in each school operated by the board.” Ky.Rev.Stat. Ann. § 158.148(4) (Banks-Baldwin 2000). “The code shall contain the type of behavior expected from each student, the consequences of failure to obey the standards, and the importance of the standards to the maintenance of a safe learning environment where orderly learning is possible and encouraged.” Ky.Rev.Stat. Ann. § 158.148(4)(b) (Banks-Baldwin 2000). “The principal of each school shall apply the code of behavior and discipline uniformly and fairly to each student at the school without partiality or discrimination.” Ky.Rev.Stat. Ann. § 158.148(4)(c) (Banks-Baldwin 2000).

¶32Kentucky law provides that a student may be disciplined, by suspension or expulsion, for, among other things, “[w]illful disobedience or defiance of the authority of the teachers or administrators, use of profanity or vulgarity, ... abuse of other students, the threat of force or violence, *288... or other incorrigible bad conduct on school property.”27 Ky.Rev.Stat. Ann. § 158.150(l)(a) (Banks-Baldwin 2000). “The superintendent, principal, assistant principal, or head teacher of any school may suspend a pupil but shall report the action in writing to the superintendent and to the parent, guardian, or other person having legal custody or control of the pupil.” Ky.Rev.Stat. Ann. § 158.150(5) (Banks-Baldwin 2000). However, prior to a student’s suspension, specified processes normally must be followed:

A pupil shall not be suspended from the common schools until after at least the following due process procedures have been provided:

(a) The pupil has been given oral or written notice of the charge or charges against him which constitute cause for suspension;

(b) The pupil has been given an explanation of the evidence of the charge or charges if the pupil denies them; and

(c) The pupil has been given an opportunity to present his own version of the facts relating to the charge or charges.

These due process procedures shall precede any suspension from the common schools unless immediate suspension is essential to protect persons or property or to avoid disruption of the ongoing academic process. In such cases, the due process procedures outlined above shall follow the suspension as soon as practicable, but no later than three (3) school days after the suspension.

¶33Ky.Rev.Stat. Ann. § 158.150(4) (Banks-Baldwin 2000).28

¶34As developed above, Principal Powell followed all appropriate established procedures predicate to Nick’s ten-day suspension for delivering the two harassing January 1996 notes to Brandi. The plaintiffs have not controverted that Nick’s admitted misconduct transgressed valid District standards of student deportment. Likewise, no dispute exists that, prior to dispensing final discipline, the principal interviewed the alleged victim (Brandi), the alleged perpetrator (Nick), his accomplice (Lance), and other students reported to have knowledge of the incident. Most importantly, for procedural due process purposes, the lynchpin event transpired when Nick confessed to delivering the two profane notes, with culpable knowledge of their corrupt general contents.

¶35At that point, Powell had conducted all of the predicate investigation which constitutional due process required prior *289to suspending Nick for ten days. See Goss v. Lopez, 419 U.S. 565, 573-74, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (ruling that, prior to suspension of a public school pupil for a period of ten days or less, a school administrator must follow “fundamentally fair procedures to determine whether the misconduct had occurred.”) (emphasis added); id. at 580-82 (explaining that, if, after receiving oral or written notice of the charges against him, the student denies the accusations, fundamental fairness requires that he be informed of the evidence against him and afforded an informal opportunity to tell his side of the story).29

¶36Furthermore, even if Powell had based his suspension decision upon a conclusion that Nick had in fact composed the two lewd January 1996 letters to Brandi, Nick nonetheless still had received all the “process” to which he would have been “due.” Powell had duly investigated the charge by interviewing the accuser (Brandi), Nick’s alleged accomplice (Lance), and Nick himself. Powell confronted Nick with Brandi’s accusations and Lance’s account, and gave Nick an opportunity to tell his side of the story. Lance’s claim that he had merely transcribed Nick’s dictation to create the first of the January 1996 letters, was highly credible, given Nick’s known authorship of an indecent and offensive writing to the same girl during the previous semester. Conversely, Nick’s claims that he had no part in the drafting of the profane January 1996 notes, and had read only a part of the second note, were, under the circumstances, facially unworthy of belief. Nevertheless, Powell conducted further investigation by interviewing additional student witnesses, who generally corroborated that, although Lance had penned one or both of the tormenting sex fantasies, Nick had composed the harassing literature. See notes 5 and 7 above.

¶37Powell determined that each of Nick’s two January 1996 offenses warranted five days’ suspension from the school, totaling ten days of out-of-school suspension, which was within his lawful authority. See note 28 above. The Waynes have protested that Powell denied Nick due process by failing to arrange a formal hearing before the Board prior to his suspension. However, a hearing before the Board is required under Kentucky law (Ky.Rev. Stat.Ann. § 158.150(2) (Banks-Baldwin 2000)), and the coordinate official policies of the Marshall County School Board, only in cases of student expulsion. Because a ten-day suspension is not a permanent expulsion from the public school system, Nick had no right, under either Kentucky law or the Fourteenth Amendment’s due *290process clause, to a formal hearing before the Board predicate to his ten-day suspension. See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

¶38In response, the Waynes have contended that Nick’s extended assignment to the ISSC Program, following his ten-day suspension, was a “constructive expulsion” from the common school system, which should have been preceded by a formal hearing before the Board.30 That contention was facially misconceived. Nick had been scheduled to resume his studies at Benton immediately following completion of his lawful ten-day suspension. The only condition upon his reinstatement at Benton was that he would do all of his schoolwork in the ISSC Program for the balance of his eighth grade year. Patently, that restriction was not tantamount to permanent and complete expulsion from the school system. As developed herein, Nick would have received all of the basic fundamentals of a “proper and an adequate education” while in the ISSC Program, with the added benefit of a monitored, disciplined environment which would have been more suitable than the traditional classroom to the individual instructional needs of this recalcitrant recidivist serious offender.

¶39Principal Powell’s decision, made in consultation with and with the assent of Superintendent Shadowen, to place Nick in the ISSC Program for the remainder of the 1995/96 academic year, was authorized by the Board’s resolution entrusting all such student assignments to the principal’s discretion. The complainants have failed to mount a colorable case that Nick was entitled to any more “process” than that which he had received prior to the final disciplinary decision of Powell and Shadowen. Nick had admitted the wrongdoing which instigated his placement in the ISSC Program. Accordingly, no useful purpose would have been served by conducting any further inquest into Nick’s conduct; or by affording him any further opportunity to be heard; at least where, as here, the education which he would have received in the alternative ISSC environment would satisfy minimum state law standards of propriety and appropriateness. See Buchanan, 99 F.3d at 1359 (resolving that a disciplined public school student “may not have procedural due process rights to notice and an opportunity to be heard when the sanction is attendance at an alternative school absent some showing that the education received at the alternative school is significantly different from or inferior to that received at his regular public school.”) (citations omitted).31 As developed herein, the education which Nick would have received in the ISSC Program would have been, in a constitutional sense, neither “significantly different from,” nor “inferior to,” that which was available in the traditional classrooms, in light of Nick’s unique individual needs.

¶40*291Accordingly, when all record evidence is construed most favorably for the plaintiffs, they have failed to muster any sustainable constitutional attack against the defendants’ implicated actions and decisions. Rather, the defendants respected all of Nick’s equal protection and due process rights in imposing entirely appropriate, and indeed relatively benign, discipline for his admitted transgressions. Because, after construing all record evidence in the light most favorable to the plaintiffs, the defendants have impinged none of the boy’s asserted constitutionally protected interests, summary judgment for defendants Shadowen and Powell is AFFIRMED.