01-2654 Remer v. Burlington Area School District, et al.

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“Notably, Ms. Remer did not claim in the district court that it was the TRO that kept M.R. away from the hearing. Rather, she admitted that ‘nothing prevented M.R. or his parents or counsel from attending.’ R.46, at 5, para. 21; R.50, at 4 (admission). Moreover, by its terms, the TRO did not apply to M.R.’s attorney and therefore did not prevent his attending the hearing and objecting to the holding of the hearing on school property. Nor is there any indication that M.R.’s attorney wrote to the school board and made such an objection or that the attorney made an application to the court that had issued the TRO to obtain permission for M.R. to attend the hearing on school property. Indeed, as far as the record indicates, it was not until Jan. 11, 1999, six weeks after the hearing, that M.R.’s newly acquired attorney sent the school district superintendent a letter requesting a new hearing for M.R. on the ground that M.R. had not been able to attend the December 1 hearing because of the TRO. Counsel for the school board responded to the Jan. 11 letter, stating that M.R.’s counsel had ‘indicated before the expulsion hearing that [M.R.] would not be attending, for reasons completely unrelated to the Extended Temporary Restraining Order.’ R.49, Ex.15. The school board’s findings of fact, which it issued following the expulsion hearing, state that M.R. and his parents ‘declined to attend the expulsion hearing because [M.R.] withdrew from school and . . . they felt that expulsion was a foregone conclusion.’ R.49, Ex.22, para. 2. Although M.R. has not admitted formally the truth of the school board’s assertions, he has not offered any concrete evidence to negate their veracity.

“Under these circumstances, we cannot say that the district court erred in granting summary judgment for the school district on this issue.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Ripple, J.