United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 11, 2003
Charles R. Fulbruge III
Clerk
No. 02-51141
Summary Calendar
BRYAN ANDERSON,
Plaintiff-Appellant,
versus
SOUTHWEST TEXAS STATE UNIVERSITY; BOARD OF REGENTS OF
THE TEXAS STATE UNIVERSITY SYSTEM; JEROME H. SUPPLE,
Doctor, in his individual and official capacity; JAMES
STUDER, Doctor, in his individual and official capacity;
DEAN GARRISON, Doctor, in his individual and official
capacity; VINCENT MORTON, Doctor, in his individual
and official capacity,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CV-981
--------------------
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Bryan Anderson sued the defendant-appellees under section
1983 after he was suspended for two semesters from Southwest
Texas State University (the University). Anderson was suspended
because he deliberately lit a marijuana cigarette at an on-campus
rally being held to protest the University’s drug policy. In
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-51141
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this appeal, Anderson challenges the district court’s summary-
judgment dismissal of his section 1983 complaint. Anderson
argues that: (1) there is a genuine issue of material fact
regarding whether the University has a “zero tolerance” drug
policy, and (2) his equal protection and due process rights were
violated by the University’s “zero tolerance” drug policy. After
reviewing the record, the Court does not find a genuine issue of
material fact that precludes summary judgment. See FED. R. CIV.
P. 56(e).
Although Anderson argues that summary judgment was improper
because there is a genuine issue of material fact concerning
whether the University has a “zero tolerance” drug policy
mandating dismissal if a student violates the policy, the summary
judgment evidence does not indicate the University has a “zero
tolerance” drug policy. The alleged policy serves as the basis
of Anderson equal protection claim. Anderson maintains students
who violate the University’s drug policy are denied the full
range of disciplinary sanctions, from probation to dismissal,
that are available in other types of cases. To establish a
question of fact about the “zero tolerance” policy, Anderson
relies on section 2.02(n) of the University’s Code of Student
Conduct (the Code), which provides that “[s]tudents found guilty
of possession, use or distribution of illegal drugs will be
dismissed from the university,” and the affidavits provided by
university officials, which state that students who violate the
No. 02-51141
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drug policy may present evidence in mitigation and possibly have
their sentences probated. Although Anderson maintains this
evidence creates a fact question, no conflict exists between the
Code and the affidavits of University officials although section
2.02(n) of the Code is somewhat internally inconsistent.
The first paragraph of section 2.02(n) provides that
any student who violates the drug policy “shall be suspended
for a period of not less than the following long two semesters.”
The following paragraph states that students who violate the
University’s drug policy “will be dismissed from the university.”
Thus, section 2.02(n) provides for either suspension or dismissal
in the event of a violation of the University’s drug policy.
Anderson, however, does not mention this inconsistency–most
likely because it would undermine his argument that a “zero
tolerance” policy exists. Anderson’s argument regarding a “zero
tolerance” policy is further belied by the fact that he was
sentenced to the minimum suspension provided for in the first
paragraph of section 2.02(n).
The penalty provisions of section 2.02(n), however, are not
automatic. Under the Code, students are entitled to a hearing
before a disciplinary hearing committee. Certain university
officials, including the President of the University and the
Vice-President of Student Affairs, have the authority to
“approve, reject, or modify” the decision of the disciplinary
hearing committee. The affidavits of Dr. Jerome Supple, the
No. 02-51141
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President of the University, and Dr. James Studer, the Vice-
President of Student Affairs, state that the discretion “to
modify the decision includes the ability to probate any
suspension” if “mitigating factors warrant probation in a
particular case.” Contrary to Anderson’s assertions, the
information contained in the affidavits does not conflict with
the Code.
Taken together, the Code and affidavits establish that
students who violate the University’s drug policy are, in fact,
subject to the full range of disciplinary sanctions, from
probation to dismissal. Anderson produced no evidence
demonstrating the information in the affidavits is false.
Consequently, Anderson’s argument that the University has a “zero
tolerance” drug policy mandating dismissal lacks merit.
Anderson also argues that the University’s “zero tolerance”
drug policy is unconstitutional per se because the full range of
disciplinary sanctions, applicable in other cases, is not
applicable in drug cases. Although Anderson maintains the
University’s disciplinary procedures raise procedural due process
issues, he focuses on appeal on his primary argument–that the
University has a “zero tolerance” policy which leaves the
administration no downward leeway. But as discussed above, the
University does not have a “zero tolerance” drug policy.
University administrators retain the discretion to accept,
reject, modify, or even probate any sentence imposed by the
No. 02-51141
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disciplinary hearing committee. As a result, Anderson’s equal
protection claim lacks merit.
The Court will not address Anderson’s due procedural due
process claim because the issue has not been adequately preserved
for appeal. Every appellant has an obligation to state a legal
argument indicating the basis for each contention that he makes
on appeal. See FED. R. APP. P. 28(a)(9); 5TH CIR. R. 28.3(j).
Anderson has not done so in this case. Moreover, because
Anderson is proceeding through counsel, his brief is not entitled
to liberal construction. See Beasley v. McCotter, 798 F.2d 116,
118 (5th Cir. 1986) (noting that this court does not give
attorney-prepared briefs the benefit of liberal construction).
The district court properly dismissed Anderson’s claims, and
therefore this Court AFFIRMS the judgment of the district court.
AFFIRMED.