PDK International | Phi Delta Kappan: Zirkel V78 N10 pp803-804 June 1997

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Courtside: The Midol Case

By Perry A. Zirkel

ON OR ABOUT 10 September 1996, Kimberly Smartt, an eighth-grader at Baker Junior High School in Fairborn, Ohio, went to the school clinic because of severe menstrual pain. She complained to the school nurse of a headache and a sore on her right arm, however, not of menstrual pain. The nurse took her temperature, put a Band-Aid on her arm, told Kimberly to have her arm checked for ringworm, and allowed her to rest. She also attempted to contact Kimberly's mother but could not reach her.

Prior to and during the visit, the school nurse had been working with the medicine box from the previous school year, packaging out-of-date medications for disposal. The box contained, among other medications, several packets of Midol.

When Kimberly asked to use the bathroom, which was separated from the room only by a curtain, the nurse placed the medicine box on a cot and left the room briefly to give Kimberly privacy. During her absence, Kimberly took two Midol tablets from the box.

Later in the day, she ingested one of the tablets and gave the other to another student, who was complaining of menstrual pain. The other student is white; Kimberly is African American.

On 18 September, two teachers gave to assistant principal William Howard a note they had found in the school auditorium that stated, in part: "I stole Midol from the nurse because I was cramping so bad." It was signed "Kim."

Howard met with Kimberly and her guidance counselor to discuss the note. During the meeting, Kimberly admitted writing it, taking the Midol tablets from the clinic, ingesting a tablet, and giving the second one to another student. Howard then explained to her the significant difference, under the student conduct code, between possessing a drug and the more serious charge of transmitting a drug.

Section 5 of the student code warned that disciplinary action, including suspension and/or expulsion, could result from knowing possession, consumption, or transmission of any "non-prescription or prescription drug (except when under the direction of a physician/parent and within school procedure)." Said procedure required written parental permission to take the drug, storage of the drug in the nurse's office, and administration of the drug by the school nurse.

In cases of drug or alcohol use (including possession) the code also specified different punishments for first and subsequent offenses. For a first offense, this policy prescribed a 10-day suspension, with reduction to three days if the student and his or her parents agreed to have an evaluation by a mutually agreed upon chemical dependency counselor and to follow the counselor's recommendations. For a second offense, the policy required the principal to recommend expulsion. This provision expressly cross-refers to a separate section of the code regarding the distribution (i.e., transmission) or sale of drugs or alcohol, which does not allow for a lesser punishment for first-time offenses.

Soon after speaking with Kimberly, Howard contacted her mother, and, when she arrived at school, he conducted an informal hearing, during which Kimberly admitted her actions and he explained the consequences. That afternoon, the principal sent Kimberly's mother a notice confirming that Kimberly was suspended for 10 days, effective 19 September, for "Violation of student code of conduct #5, 'Alcoholic Beverages, Drugs, and Narcotics.' Possession of a drug (Midol), transmission of a drug, which calls for a 10-day suspension with recommendation for expulsion."

On the same day (18 September), the student to whom Kimberly had given the Midol admitted to the incident and was suspended for 10 days, in accordance with the "first offense" provision of the use/possession section of the code. Also in accordance with that provision, she submitted to a professional evaluation by a chemical dependency counselor, and her suspension was reduced to three days.

On 24 September, an administrative assistant for personnel heard Kimberly's appeal of her 10-day suspension and upheld the suspension. He explained that Kimberly's transmission of the Midol warranted the more severe penalty.

On 26 September, the superintendent sent a "notice of intended expulsion" to Kimberly's mother, citing the same section of the code and referencing "transmission of a non-prescription drug." This notice corrected one sent the day before that only referenced possession.

Per the notice, on 30 September the superintendent's designee held an expulsion hearing. She explained the relevant code sections, including the difference between possession or ingestion and the more serious offense of transmission, and took testimony from the principal, assistant principal Howard, and Kimberly.

On 1 October the superintendent sent Kimberly notice that she was expelled for 80 days, commencing on 3 October. Soon thereafter, Kimberly's counsel appealed the suspension and the expulsion, per the district's policy, to the school board.

On 7 October, the school board convened the appeal hearing. Kimberly attended with her mother, her grandfather, three attorneys, a paralegal, a secretary, and two law clerks. The board members handled the questioning after both sides' presentations. The board allowed Kimberly's attorneys to direct any questions to its president, who then asked them of the appropriate individuals.

On the following day, the board notified Kimberly's parents that it had voted to affirm the 10-day suspension but to modify the 80-day expulsion to the three days already served. If Kimberly and her parent would agree to an evaluation by a substance abuse counselor and would follow any recommendations of the counselor, the expulsion would be removed from her records, and she would be given the opportunity to make up the work missed.

On 7 October, Kimberly and her family filed suit in federal court against the school board, the superintendent, and the principal. Their federal claims included violations of 14th Amendment procedural due process, equal protection (in terms of racial discrimination), and substantive due process. Their related state claims were negligence and intentional infliction of emotional distress. The defendants moved for summary judgment.

On 10 February 1997, federal judge Walter Rice issued a summary judgment in favor of the defendants as to the federal claims and declined to exercise the court's supplemental jurisdiction to decide the state claims.1

As for procedural due process, the court rejected the plaintiff's various arguments in relation to the suspension and expulsion. In response to the argument that the suspension notice of 18 September was defective, the court concluded that 1) both the notice and the prior informal hearing adequately informed her of the charges, which included "transmitting" the Midol; and 2) the applicable Supreme Court precedent does not require notice of the specific provision under which the student is charged.2 Similarly, rejecting the argument that the subsequent suspension proceedings were held too late to make any difference, the court cited the same precedent in concluding that the notice and informal hearing on 18 September fulfilled the applicable minimum, thus making the timing of the suspension appeal constitutionally irrelevant.

In response to the attacks on the expulsion hearing, the court cited Sixth Circuit precedent that students are not constitutionally entitled to the right to cross-examine witnesses at expulsion hearings3 and, going further, that "the defendants did not deprive Kimberly of procedural due process by depriving her of the opportunity to call her own witnesses." Disposing of Kimberly's remaining procedural arguments, the court listed the five separate administrative hearings for Kimberly and professed having "rarely seen a case in which a school district has taken such care to provide the plaintiff with a full panoply of due process protections, including certain procedures which are not required by federal or state law."

With regard to the alleged racial discrimination, the court concluded that the 14th Amendment's equal protection clause requires public institutions to provide similar treatment to individuals who are similarly situated in all relevant respects without purposeful racial discrimination. Kimberly's counsel identified two white students who allegedly had been treated more leniently on the basis of race. One had been suspended in 1994 for 10 days but not expelled for possessing and giving nonprescription diet pills to another student. The fatal problem, in the court's view, was the plaintiff's failure to prove that the same school administrators imposed discipline on both that student and Kimberly. The other student was the one to whom Kimberly had given the Midol. The fatal defect here for Kimberly was the significant distinction between the two offenses, possession/consumption and transmission, as specified in the student handbook.

As for substantive due process, Kimberly's counsel argued that the school officials had been "arbitrary and capricious" in defining Midol as an illegal drug, leaving it in Kimberly's unsupervised presence while she was in menstrual pain, and severely disciplining her for this minor matter. Citing the Supreme Court's directive to defer to the substantive discretion of school officials in disciplinary matters when there is no specific constitutional violation,4 Judge Rice found more than one rational basis for regarding as serious the transmission of nonprescription as well as prescription drugs: 1) the need to protect students who may have adverse, allergic reactions to nonprescription medications, 2) the need to wage war on the epidemic of substance abuse in the schools, and 3) the need to ensure that even nonprescription drugs are not used in an excessive, harmful manner by students. Thus, he concluded, "there can be no argument that there is no rational relationship between the transgression and the punishment."

WHEN Kimberly's family filed suit, the "Midol Case" had its moment of national attention; the news media made it a cause celebre.5 Yet neither the public nor educators are generally aware of the ultimate court decision. Implicitly acknowledging the common perception of the case, Judge Rice stated, "Although this Court is aware of many possible transgressions by public school students which are more dangerous to both the student and the community than the unauthorized possession and distribution of Midol, it is neither arbitrary nor capricious to outlaw and punish such actions." The school district's attorney, Janet Cooper, comments, "Judge Rice's decision upholds the interest of schools in protecting each and every student, regardless of race, from adverse reaction to medication of any kind, and in prohibiting unregulated possession, use, and transmission of nonprescription drugs."

Refusing to see the case as ended, the family's attorney, Carl Lewis, redirects our attention to the power of the press. He speaks of Kimberly's appearance at a news conference held in the wake of the federal court's decision and remarks that "her ordeal has been a shining light on injustices throughout a lot of schools." He also reports that, rather than appeal to the Sixth Circuit, he will refile in state court, based on the common-law claims of negligence and intentional infliction of emotional distress. Given the necessary evidentiary elements of these claims and the general attitude of the courts, he faces a steep uphill slope.

In any event, both Kimberly's discipline and the federal court's disposition are regrettable but unsurprising results given the modern reality of a war on drugs and violence in the schools and in society. It is fascinating to see the courts selectively recasting and relying on judicial pronouncements from the 1970s to come to such conclusions as the one in this case -- that Midol is not a "smart(t)" pill for a student to have, take, or give in school.

1. Smartt v. Clifton, No. C-3-96-389 (S.D. Ohio 10 Feb. 1997). I obtained supplementary information via telephone interviews on 28 February 1997 with attorneys Carl Lewis and Janet Cooper, who represented the plaintiff family and the school district defendants respectively.
2. Goss v. Lopez, 419 U.S. 565 (1975). For a summary of the various such precedents, see Perry A. Zirkel, Sharon Richardson, and Steve Goldberg, Supreme Court Decisions Affecting Education (Bloomington, Ind.: Phi Delta Kappa Educational Foundation, 1995).
3. Newsome v. Batavia Sch. Dist., 842 F.2d 920 (6th Cir. 1988). Courts in other jurisdictions have recently followed suit. See, for example, L.Q.A. v. Eberhart, 920 F. Supp. 1208 (M.D. Ala. 1996); and Coplin v. Conejo Unified Sch. Dist., 903 F. Supp. 1377 (C.D. Cal. 1995).
4. See, for example, Wood v. Strickland, 420 U.S. 308 (1975).
5. See, for example, "Girl's Suspension Is Reduced in Case of Passing Midol," New York Times, 9 October 1996, p. B-9; and "Student with Midol Returns," Education Week, 9 October 1996, p. 4.

PERRY A. ZIRKEL is Iacocca Professor of Education, Lehigh University, Bethlehem, Pa.