Parker v. Duffey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 22, 2007

No. 06-50794 Charles R. Fulbruge III
Clerk

TONIYA PARKER; RUSSELL KAUITZSCH; TINA LIVINGSTON,

Plaintiffs-Appellants,
v.

THELMA DUFFEY; JOHN J. BECK; MICHAEL BOONE; CHRISTOPHER
BROWN; STAN CARPENTER; COLLEEN CONNOLLY; LINDA HOMEYER;
STELLA KERL; JOLYNNE REYNOLDS; ERIC SCHMIDT; TEXAS STATE
UNIVERSITY; VINCENT MORTON,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Texas
1:04-CV-315

Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants appeal the district court’s grant of summary
judgment in favor of Defendants-Appellees. Finding no error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
During the 2002-03 academic year, Plaintiffs-Appellants Toniya Parker,
Russell Kauitzsch, and Tina Livingston were graduate students enrolled in the

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-50794

Professional Counseling, Marriage, and Family Therapy Program at Texas State
University (“University”).1 They also served as officers for two university-
affiliated organizations, the Counseling Association of Southwest Texas
(“CAST”) and an honor society, Chi Sigma Iota (“CSI”). Defendant-Appellee
Thelma Duffey served as the faculty advisor to both organizations. In order for
funds from the bank accounts of those two organizations to be accessed, one of
the officers and Duffey had to approve and sign a “Request for Club Account
Payout” form.
In March 2003, Parker, Kauitzsch, and Livingston approached Duffey
about attending a conference in California hosted by the American Counseling
Association. Although Duffey told them they could attend, she informed them
that the CAST chapter at the University could not fund the trip. The students
informed Duffey that they had acquired private funding for the trip, but since
that money would not be collected until after the conference, they requested a
$1,500 advance from the CAST account to temporarily cover their expenses.
Duffey signed the form authorizing their use of the CAST funds.
In July 2003, Duffey, while reviewing the CAST and CSI bank accounts,
discovered that additional payout forms had been submitted, even though none
of the students had presented her with any “Request for Club Account Payout”
forms to sign. She requested that Dr. Michael Boone, then Acting Chair of the
Educational Administration Psychology Services Department, meet with the
three students and discuss her suspicions that they had forged her signature and
stolen money from the CAST and CSI accounts. Boone and Duffey met with
Parker and Kauitzsch twice during the month of July; Livingston did not attend
either meeting as she had already graduated and could not take time off work.
During these meetings, Duffey accused the students of mishandling the CAST

1
Livingston graduated from the program during the Spring of 2003.

2
 No. 06-50794

and CSI funds. The students, in response, presented receipts for all
expenditures and argued that Duffey had allowed them to withdraw expenses
from the account even when she had not personally signed the forms. Duffey
denied those assertions.
Parker and Kauitzsch then met with Dean Vincent Morton, the
Coordinator of Student Justice, which was the forum responsible for addressing
university-wide violations of student conduct and adjudicating disciplinary
actions. Since Livingston was no longer enrolled, Student Justice commenced
no actions against her. At their initial meeting, Parker and Kauitzcsh orally
requested that Morton provide them with a copy of their files and all information
pertinent to his investigation. They allege that they never received these
materials until after the instigation of litigation. Morton met with Parker and
Kauitzcsh twice, and after reviewing all the materials submitted both by the
students and the University, he concluded that they had violated the University
Code of Student Conduct. On August 27, 2003, both Parker and Kauitzsch
signed a form agreeing to waive a disciplinary hearing and accept a penalty of
one year of disciplinary probation and restitution of $1,936 to the CAST bank
account. The students claim that Dean Morton assured them that signing the
disciplinary form would appease the faculty.
However, soon thereafter, Dr. Stella Kerl, an associate professor in the
students’ department, scheduled a meeting between each student and a Faculty
Review Committee (“FRC”) to determine whether the students satisfied the
requisite ethical standards needed to continue in the counseling graduate
program. Parker and Kauitzsch each met with a FRC on September 8, 2003.
After the meetings, both FRCs concluded that Parker and Kauitzsch should be
suspended from the program for two-years (with the possibility of review after
one year) and attend forty-five hours of ethical counseling. The students
appealed these decisions to the chair of the department, Dr. Stan Carpenter,

3
 No. 06-50794

contending that they were entitled to a full academic hearing. They also argued
that the two-year suspension essentially amounted to expulsion since their
program required that they graduate within five years of the date of their
matriculation into the program. Carpenter upheld the FRCs’ recommendations.
All three students filed suit against the above named Defendants-
Appellees in federal district court, alleging violations of due process and equal
protection under both the Texas and federal constitutions, as well as violations
of the federal Family Educational Rights and Privacy Act (“FERPA”), and the
Texas Public Information Act (“TPIA”); they sought damages and injunctive
relief under 42 U.S.C. § 1983.2 The district court: (1) dismissed the claims
against the University and Beck in his official capacity, finding they were barred
by the Eleventh Amendment; (2) dismissed Livingston’s due process claims; (3)
granted Defendants’ motion for summary judgment on Parker’s and Kauitzsch’s
due process claims; (4) dismissed the students’ equal protection and first
amendment retaliation claims; and (5) dismissed their FERPA and TPIA claims
as moot. The three students timely appealed the district court’s dismissal of
their procedural due process claims, as well as the dismissal of their FERPA and
TPIA claims as moot.
II. DISCUSSION
We review the district court’s grant of summary judgment de novo.
Templet v. Hydro-Chem, Inc., 367 F.3d 473, 477 (5th Cir. 2004). “Summary
judgment is appropriate if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law.” Id. Evidence is viewed
in a light most favorable to the non-movant. Id.
The Fourteenth Amendment prevents states from depriving any person of
life, liberty, or property without due process of law. U.S. CONST. amend XIV, §

2
The students also brought a First Amendment Retaliation claim against the
Defendants. That claim, which was also dismissed by the district court, was not appealed.

4
 No. 06-50794

1. The Supreme Court has recognized that students at tax-supported
educational institutions subjected to remedial actions resulting in removal from
the academic setting are entitled to the protections of the Due Process Clause.
Goss v. Lopez, 419 U.S. 565, 576 n.8 (1975). While “the very nature of due
process negates any concept of inflexible procedures universally applicable,” Id.
at 578 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)), at a
very minimum, students are entitled to notice and an opportunity to be heard.
Id. at 579.
The students assert that the district court erred in granting the
Defendant’s motion for summary judgment on their due process claims.3 They
contend that the district court erred in determining that they knowingly waived
a hearing on the disciplinary decision and that the academic suspension that
followed was not the result of that disciplinary action. They direct this court’s
attention to Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 158-59 (5th Cir.), cert.
denied, 368 U.S. 930 (1961), where this court not only held that students at
public universities are entitled to procedural due process protections, but also
that the amount of process due is dependant on whether the action is
disciplinary or academic.4 See Wheeler v. Miller, 168 F.3d 241, 248 (1999). The
students argue that the University “bootstrapped” its disciplinary decision onto
its academic decision, and as such, they were entitled to greater due process
protections.

3
Plaintiffs bring their claims under the Texas and federal constitutions. However,
because “Texas courts [in cases involving academic decisions] interpreting the Due Course
Clause of the Texas Constitution have looked to federal case law interpreting federal due
process rights,” Wheeler v. Miller, 168 F.3d 241, 247 (1999) (internal citations omitted), we
need not analyze their claims under both state and federal case law.
4
In Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 86-90 (1978), the Supreme
Court, relying in part on Dixon, explained that students are entitled to far fewer procedural
protections in academic actions. While a hearing may typically be appropriate for disciplinary
actions schools take against their students, the Court observed that such a process may be less
useful in determining the truth concerning scholarship or other academic endeavors. Id.

5
 No. 06-50794

We reject the arguments advanced by the students. First, the district
court properly dismissed Livingston’s due process claim. It is uncontested that
Livingston graduated from the University in the Spring of 2003, before Duffey
raised her allegations against the students. Livingston was not a part of any of
the meetings that occurred during the Summer of 2003, and she has failed to
demonstrate that she was deprived of any constitutionally-protected interest.5
Livingston asserts that her reputation was damaged by the University’s actions,
but case law has established that there is “no support for the proposition that
reputation alone, apart from some more tangible interests . . . is either ‘liberty’
or ‘property’ by itself sufficient to invoke the procedural protection of the Due
Process Clause.” Wheeler, 168 F.3d at 249 (quoting Paul v. Davis, 424 U.S. 693,
701 (1976)).
Second, Parker and Kauitzsch have failed to demonstrate that they were
entitled to any more due process than they have already received. They were
given notice of the allegations against them. They then had ample opportunity
to be heard: they had two meetings with Boone and Duffey, two meetings with
Morton, and they each met with a FRC. While none of these meetings were
formal, trial-type hearings, both Parker and Kauitzsch were able to fully discuss
the charges against them and present evidence supporting their contentions.
That is all the Due Process Clause requires in this situation. The district court,
after a thorough review of the evidence, found that the students “were afforded
the due process to which they were entitled.” After independently reviewing the
record, we refuse to disturb that determination. In reaching this conclusion, we

5
Livingston, for the first time in her reply brief, states that even though the University
had already conferred her degree at the time the allegations against her arose, she was still
attending class in order to finish an incomplete grade. She contends that the University
converted her incomplete into an “F,” and that she is entitled to due process on that ground.
However, this court does not consider arguments not raised in an appellant’s original brief.
See Nissho-Iwai Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1539 n.14 (5th Cir. 1984)
(“[A]n [appellant’s] original brief abandons all points not mentioned therein.”).

6
 No. 06-50794

need not decide whether the action the University took against the students was
disciplinary or academic in nature because the students received sufficient
process under either standard.
We also find that the district court properly dismissed the students’
FERPA and TPIA claims as moot because the University provided them with the
records they requested.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

7