F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 19 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
DANIEL WATSON, as a minor by
his next friends, JIM and SANDRA
WATSON,
Plaintiff - Appellant,
v. No. 99-2290
ROBERT D. BECKEL, Superintendent,
New Mexico Military Institute, SETH R.
ORELL, Commandant of Cadets, New
Mexico Military Institute, ANTONIO
PINO, CHRISTOPHER CORTEZ,
Employees of the New Mexico Military
Institute, all in their individual capacities,
Defendants - Appellees.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-98-551-JC/LFG)
Warren F. Frost, Tucumcari, New Mexico, for the appellant.
Richard E. Olson (Rebecca N. Johnson with him on the brief), of Hinkle, Hensley, Shanor
& Martin, L.L.P, Roswell, New Mexico, for the appellees.
Before TACHA and LUCERO, Circuit Judges, and LUNGSTRUM, District Judge.*
*
The Honorable John W. Lungstrum, United States District Judge for the District
of Kansas, sitting by designation.
LUNGSTRUM, District Judge.
After Daniel Watson was expelled from the New Mexico Military Institute, he
sued officials at the Institute under 42 U.S.C. § 1983 alleging that he was denied due
process. The district court granted summary judgment for the defendants on the due
process claim and denied Mr. Watson’s motion for leave to amend the complaint to add
an equal protection claim. Mr. Watson appeals. We exercise jurisdiction pursuant to 28
U.S.C. § 1332 and affirm the district court’s order.
Background
Daniel Watson enrolled as a ninth grade cadet at the New Mexico Military Institute
on January 3, 1998. In February 1998, Mr. Watson’s roommate at the Institute
complained to Lieutenant Antonio Pino, an official at the Institute, that Mr. Watson and
several other cadets had assaulted him. Mr. Watson was required to change rooms and an
investigation into the allegation was initiated. Mr. Watson’s mother called Lieutenant
Pino about the room change and was told that her son had assaulted his roommate and
that the assault was motivated by racism. Major Christopher Cortez led the investigation
and interviewed numerous cadets, including Mr. Watson. Major Cortez told Mr. Watson
that the alleged assault was the subject of the investigation and Major Cortez asked Mr.
Watson questions about the assault and its motive.
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Major Cortez prepared a written report and, on the basis of the report, the
Commandant of Cadets, Seth Orell, decided to convene a Major Disciplinary Board to
hear the allegations against Mr. Watson and two other cadets allegedly involved in the
assault. The Commandant appointed Lieutenant Pino as president of the board and Major
Cortez as the recorder. Henry Borom, a Troop Leadership Advisor at the Institute,
informed Mr. Watson of the decision. Mr. Borom told Mr. Watson that the investigating
officer had recommended that he go before a Major Disciplinary Board for the alleged
assault. The same day, Mr. Borom called Mr. Watson’s mother and told her that her son
was to appear before a disciplinary board for the assault. On March 4, 1998, Lieutenant
Pino presented Mr. Watson with a Major Disciplinary Notice informing him of the time
and date of the hearing and that he was “permitted to have an Advisor/Assistant from the
staff, faculty, or Corp. of Cadets, to call witnesses on my behalf, to testify or remain silent
without prejudice to be drawn therefrom.” The notice did not specify the charges against
Mr. Watson.
Mr. Watson arrived at the hearing without an “Advisor/Assistant.” Major Cortez
presented the evidence against Mr. Watson to the board, including five witnesses and
numerous exhibits. Mr. Watson spoke to the board, but did not call witnesses on his
behalf or introduce other evidence. Mr. Watson admitted to the board that he assaulted
his roommate and that he was motivated by the fact that his roommate was Hispanic and
Catholic. The board voted unanimously to expel Mr. Watson.
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Commandant Orell met with Mr. Watson to inform him of the board’s decision.
Mr. Orell told Mr. Watson of his right to appeal the board’s decision and Mr. Watson
requested an appeal to the Superintendent. Robert Beckel, the Institute Superintendent,
reviewed the evidence and upheld the board’s decision to expel Mr. Watson.
On May 8, 1998, Mr. Watson filed this lawsuit against officials at the Institute
under 42 U.S.C. § 1983 alleging that he was denied due process. The district court
subsequently granted summary judgment for the defendants on the due process claim and
denied Mr. Watson’s motion for leave to amend the complaint to add an equal protection
claim on the ground that the amendment would be futile.
Standards of Review
We review a district court’s grant of summary judgment de novo, applying the
same legal standard used by the district court. See Byers v. City of Albuquerque, 150
F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When
applying this standard, we review the evidence and draw inferences in the light most
favorable to the nonmoving party. See Byers, 150 F.3d at 1274.
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This court reviews de novo a district court’s refusal to grant leave to amend a
complaint based on the court’s conclusion that the amendment would be futile. See
Jefferson County School Dist. No. R-1 v. Moody’s Investor’s Services, Inc., 175 F.3d 848,
858-59 (10th Cir.1999). A proposed amendment is futile if the complaint, as amended,
would be subject to dismissal for any reason, including that the amendment would not
survive a motion for summary judgment. Id; Bauchman v. West High School, 132 F.3d
542, 561 (10th Cir. 1997).
Due Process
Mr. Watson argues that he was denied due process because he received inadequate
notice.1 Notice was inadequate, according to Mr. Watson, because the written notice he
received did not specify the charges against him. Mr. Watson also alleges that the board
based its decision, in part, on the finding that Mr. Watson was a racist and argues that
notice was inadequate because he was not told that he was charged with racism.
The Supreme Court decision in Goss v. Lopez, 419 U.S. 565 (1975), sets the
standard for procedural due process owed to students facing short-term school
suspensions:
1
The appellees do not contest Mr. Watson’s assertion that he had a property or
liberty interest in his education at the Institute and was owed due process under the
Fourteenth Amendment.
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Due process requires, in connection with a suspension of 10 days or less,
that the student be given oral or written notice of the charges against him
and, if he denies them, an explanation of the evidence the authorities have
and an opportunity to present his side of the story.
Goss, 491 U.S. at 581. The Goss court explained that “[l]onger suspensions or expulsions
for the remainder of the school term, or permanently, may require more formal
procedures.” Id. at 584. Mr. Watson, therefore, was entitled to at least the amount of due
process described by the Goss court.
The Supreme Court has not answered the question of what, if any, additional
process is required for a long-term suspension or expulsion. The Goss decision, however,
provides some guidance. The Court explained that “the timing and content of the notice
and the nature of the hearing will depend on appropriate accommodation of the
competing interests involved. Id. at 579. The students’ interest in “unfair or mistaken
exclusion from the educational process” must be balanced against the school’s interest in
“discipline and order.” Id. The Court emphasized that “the risk of error should be
guarded against if that may be done without prohibitive costs or interference with the
educational process.” Id. at 580.
Other circuits that have considered the requirements of due process in cases of
long-term suspension or expulsion have applied the balancing test of Mathews v.
Eldridge, 424 U.S. 319 (1976), to determine if additional process was required. See
Palmer v. Merluzzi, 868 F.2d 90, 95 (3d Cir. 1989); Newsome v. Batavia Local School
Dist., 842 F.2d 920, 923-34 (6th Cir. 1988); Gorman v. University of Rhode Island, 837
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F.2d 7, 14 (1st Cir. 1988); Nash v. Auburn University, 812 F.2d 655, 660 (11th Cir.
1987). Under Mathews, a court must balance three factors: (1) the private interest that
will be affected by the official action, (2) the probable value, if any, of additional or
substitute procedural safeguards, and (3) the government’s interest, including the fiscal
and administrative burden, that the additional or substitute procedural requirements would
entail. Mathews, 424 U.S. at 334-35. The three-factor test from the Mathews decision,
decided one year after Goss, is appropriate for determining when additional procedure is
due because the test crystallizes the balancing of student interests against school interests
suggested in the Goss decision.
Mr. Watson’s argument that he received insufficient notice because the written
notice provided to him failed to list the specific charges fails under the Mathews
balancing test. The Goss decision specifies that a student may be provided with either
oral or written notice of the charges against him. It is uncontroverted that Mr. Borom told
Mr. Watson that he was to appear before the board for a hearing on the alleged assault,
that Mr. Watson knew the subject of the investigation and that Mr. Watson understood
that the hearing was about the assault. In addition, Mrs. Watson was told by Lieutenant
Pino that her son was being investigated for the assault of his roommate and that the
assault was racially motivated. Mr. Watson received adequate oral notice of the charges
against him as well as what the district court termed “constructive notice”-- knowing the
allegations that were the subject of the investigation and understanding that the hearing
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was about those allegations. The issue, therefore, is whether there would have been any
additional value in listing the charges in the written notice and comparing that value to
the burden that would be placed upon the Institute in complying.
Despite the inadequacy of the written notice provided, Mr. Watson was well aware
of the allegations that were the subject of the hearing. “All that is necessary” to satisfy
due process “is that the procedures be tailored, in light of the decision to be made, to ‘the
capacities and circumstances of those who are to be heard,’ to insure that they are given a
meaningful opportunity to present their case.” Mathews, 424 U.S. at 349 (quoting
Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970)). The notice given to Mr. Watson
satisfied this requirement because it allowed Mr. Watson to prepare for the hearing and
defend against the charges. Because Mr. Watson already knew the allegations he faced,
he would have received little or no additional benefit from a written notice that specified
the charges against him. While the burden of requiring schools to provide written notice
specifying charges is slight, in this case, requiring such notice in addition to oral and
constructive notice was not necessary to ensure a fair proceeding.2
Mr. Watson’s argument that notice was insufficient because he was not told that he
was charged with racism also fails under the Mathews balancing test. The board’s finding
2
The Court explained in Mathews that the “ultimate balance involves a
determination as to when, under our constitutional system, judicial-type procedures must
be imposed upon administrative action to assure fairness.” Mathews, 424 U.S. at 348.
Judicial intervention to require written notice of charges when a student already knows
the charges is not necessary to ensure fairness.
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that the motive for the assault was racism does not constitute an independent charge
against Mr. Watson. The record does not indicate that the board expelled Mr. Watson
because he was racist, but that he was expelled for the assault. Mr. Watson does not cite,
and this court does not find, any precedent for the proposition that notice must include all
suspected motives for a student’s actions.3 Such extensive notice is not even due in a
criminal trial.4 The record suggests that Mr. Watson knew in advance of the hearing that
the suspected motive for the assault was racism.5 Mr. Watson was present to hear the
evidence indicating that the assault was racially motivated and had the opportunity to
respond. The record of the hearing indicates that Mr. Watson said that racism was his
motive and that Mr. Watson’s testimony constituted the majority of the evidence about
3
In Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), the
court held that the student “should be given the names of the witnesses against him and an
oral or written report on the facts to which each witness testifies.” The purpose of this
requirement was to allow the student an opportunity to respond to the charges because he
was not allowed to be present for the testimony. The Dixon court did not suggest that this
information was necessary to provide adequate notice.
4
The Mathews Court emphasized that due process does not require the “wholesale
transplantation” of the judicial rules of procedure to administrative hearings. Mathews,
424 U.S. at 348. Certainly due process does not require notice more extensive be
provided to students than what is due a criminal defendant.
5
Mr. Watson’s mother was told by Mr. Boron in advance of the hearing that
racism was suspected as the motive for the assault. Mr. Watson was questioned by Major
Cortez about the assault and the motive for the assault. The investigation report, prepared
by Major Cortez, suggested that racism was the motive for the assault. While the report
does not specify if Mr. Watson said that racism was his motive, it seems unlikely that Mr.
Watson was unaware that Major Cortez and other cadets believed that the assault was
racially motivated.
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racism. Mr. Watson, therefore, was not prejudiced by not being told by officials that they
suspected racism was his motive. On the other hand, the burden on schools to provide
notice of suspected motives would be heavy. Schools would be required to investigate
possible motives for student misbehavior and set out those theories in the student’s notice.
Should evidence be presented at a hearing that suggests a motive not included in the
notice, the student would have grounds to challenge any disciplinary action. This heavy
burden easily outweighs any benefit of requiring that notice include suspected motives for
student behavior.6
In order to establish a denial of due process, a student must show substantial
prejudice from the allegedly inadequate procedure. See, e.g., United States v. Kennedy,
64 F.3d 1465,1473 (10th Cir. 1995), Moore v. Reynolds, 153 F.3d 1086, 1111 (10th Cir.
1998), Keough v. Tate County Board of Ed., 748 F.2d 479 (5th Cir. 1984). Mr. Watson
admitted to the board that he assaulted his roommate and that he did so because his
roommate was Hispanic and Catholic. Because Mr. Watson candidly admitted his guilt,
Mr. Watson was not prejudiced by a lack of notice. See Gross, 419 U.S. at 581
(explaining that due process requires that “the student be given oral or written notice of
the charges against him and, if he denies them, an explanation of the evidence the
6
The Goss court emphasized that the burden of imposing “trial-type procedures”
on schools “might well overwhelm administrative facilities in many places and, by
diverting resources, cost more than it would save in educational effectiveness.” This
would be the case if schools were required to give notice of possible motives for
disciplinary violations, such as racism.
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authorities have and an opportunity to present his side of the story”) (emphasis added).
Additional notice would not have allowed Mr. Watson to better defend the allegations.
Mr. Watson, therefore, failed to establish a due process violation. See Keough v. Tate
County Board of Ed., 748 F.2d 479 (5th Cir. 1984) (“there was substantial evidence to
support the district court’s finding that Keough admitted the charges and therefore his
suspension did not result from a procedural due process deprivation.”); Trujillo v. Taos
Municipal Schools, 1995 WL 868603 at *9 (D.N.M. Aug. 10, 1995) (“In light of
Student’s admission of the offense, no due process infringement could be found even if
the charges against him were not included on the notice of hearing.”); Boster v. Philpot,
645 F. Supp. 798, 804 (D. Kan. 1986) (holding that even if procedure was inadequate,
“the students would still be unable to show that they suffered any prejudice so as to
establish a denial of due process. By admitting their guilt, the plaintiffs waived their right
to a hearing.”). Also, because Mr. Watson received proper notice regarding the charge of
assault and was expelled for the assault, Mr. Watson would not be prejudiced by the
board justifying expulsion on additional grounds. See Smith v. Severn, 129 F.3d 419, 428
(7th Cir. 1997) (holding that so long as a student receives proper notice of a charge and is
suspended on the basis of that charge, justifying the suspension by finding additional
violations does not constitute a due process violation).
Mr. Watson requests that the court order “that upon the proposed expulsion or
long-term suspension of any student attending a state-supported educational institution,”
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the student must be afforded written notice specifying the charges, legal counsel, the
presentation of evidence, the right to cross-examine witnesses, an impartial board, a
transcript of the hearing, and independent review of the decision. Not only does
precedent indicate that due process does not require all of these rights, see, e.g., Gorman
v. University of Rhode Island, 837 F.2d 7, 16 (1st Cir. 1988) (rejecting the argument that
due process requires the right to counsel, to cross-examine witnesses, or to have a
transcript of the hearing); Newsome v. Batavia Local School Dist., 842 F.2d 920, 924 (6th
Cir. 1988) (holding that due process does not require the right to cross-examine witnesses
or that investigating officials be excluded from the deliberation process), but Mr. Watson
lacks standing to request such an order because he has not demonstrated that he will be
subject to future disciplinary procedures, see Beattie v. United States, 949 F.2d 1092,
1093 (10th Cir. 1991) (“plaintiff cannot maintain a declaratory or injunctive action unless
he or she can demonstrate a good chance of being likewise injured in the future”); Gebert
v. Hoffman, 336 F. Supp. 694,697 (E.D. Penn. 1972) (holding that students lacked
standing to challenge the rules governing suspension because the students “failed to
establish any reasonable probability of [future] injury to them as a result of the continued
existence and use of those rules.”), and because Mr. Watson did not request an injunction
from the district court or raise the issue of a student’s entitlement to these rights, this
court will not consider the request upon appeal, see Unicover World Trade Corp. v. Tri-
State Mint, Inc., 24 F.3d 1219, 1221 (10th Cir.1994).
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Because the uncontroverted facts presented to the district court show that Mr.
Watson received adequate notice of the charges against him, summary judgment was
properly granted for the defendants.
Equal protection
Mr. Watson moved the district court for leave to amend his complaint to include
an equal protection claim, arguing that equal protection is violated because students at
other New Mexico schools are given written notice specifying charges and a hearing with
more rights than were afforded to Mr. Watson. For support, Mr. Watson pointed to the
New Mexico Department of Education regulations that, for long-term suspensions and
expulsions, require that a student be provided detailed written notice and a hearing with
the right to counsel and the right to cross-examine witnesses. The district court denied
Mr. Watson’s motion on the grounds that it would be futile. According to the district
court, because Mr. Watson was afforded sufficient due process, he has no basis for an
equal protection claim under the rational basis test.
Mr. Watson argues that the district court was wrong because “there can be no
rational basis” for having different procedural safeguards among students in the same
state. For support of his argument, Mr. Watson cites the Seventh Circuit decision in Betts
v. Board of Ed. of the City of Chicago, 466 F.2d 629 (7th Cir. 1972). In Betts, the
plaintiff argued “that she was denied equal protection of the laws in that the procedural
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safeguards afforded to her were not comparable to those required by the Illinois statutes
for students in areas other than Chicago.” Id. at 632. The Seventh Circuit did not rule on
the issue because the complaint did not include an equal protection claim. Id. The court,
however, suggested that, upon amendment of the complaint, the district court “may well
decide that the equal protection clause has been violated by affording lesser procedural
safeguards to Chicago students in disciplinary proceedings than in other Illinois school
districts, unless the defendants can show the distinction to be rationally related to the
achievement of a legitimate state goal.” Id.
Because Mr. Watson does not claim that he is a member of a suspect class or assert
the deprivation of a fundamental right, his equal protection claim fails if the difference
between procedure afforded students at the Institute and other state schools is rationally
related to a legitimate state interest. See Vacco v. Quill, 521 U.S. 793, 799 (1997)
(holding that unless a distinction burdens a fundamental right or targets a suspect class,
courts will uphold it if it is rationally related to a legitimate end); West v. Derby Unified
School Dist. No. 260, 206 F.3d 1358, 1365 (10th Cir. 2000) (“public school students are
not a suspect class under the Equal Protection Clause”). The appellees assert that the
difference in procedure is rationally related to a legitimate state interest in providing a
military education to students at the Institute and cite Stilianos v. Board of Trustees of
Massachusetts Maritime Academy, 1983 U.S. Dist. LEXIS 13529 (D. Mass. Sept. 22,
1983) for support of the proposition that cadets at military institutions are taught to “live
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up to high standards of conduct” and that, consequently, “such schools have greater
freedom in fashioning their disciplinary procedures than do other schools.”
The principle difference between a military school and other schools is the degree
of discipline imposed on students. Students, like Mr. Watson, and their parents generally
choose a military education for this reason. The punishments for student misbehavior and
procedures for imposing those punishments are different than those followed by other
schools. This difference is a fundamental ingredient of a military education. See
Hagopian v. Knowlton, 470 F.2d 201, 204 (2d Cir. 1972) (recognizing that “the [United
States Military] Academy’s rigorous and exacting standards of discipline, behavior and
personal decorum for cadets” are “standards which have traditionally been recognized as
vital elements of a training program designed to develop the mind, body, and character of
prospective career officers.”). Disciplinary proceedings at the Institute, therefore, should
not be expected to mirror that of other public schools which have different codes of
conduct and methods of discipline.
In line with its objective of providing a military education to its students, the
Institute modeled Mr. Watson’s hearing after a military court-martial.7 Because of the
7
Federal courts have long recognized that due process does not require that
military courts-martial mirror a criminal trial. See Weiss v. United States, 510 U.S. 163,
177-78 (1994). Courts review military disciplinary proceedings with great deference and
find a violation of due process only if “the factors militating in favor of ” the additional
procedure “are so extraordinarily weighty as to overcome the balance struck by
Congress.” Id.
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military’s unique code of conduct and methods of discipline, the fact that military
personnel are subject to different proceedings and different punishments than civilians
does not constitute an equal protection violation. See Parker v. Levy, 417 U.S. 733, 743
(1974) (“This Court has long recognized that the military is, by necessity, a specialized
society separate from civilian society. We have also recognized that the military has,
again by necessity, developed laws and traditions of its own during its long history. . . .
the Court has approved the enforcement of those military customs and usages by courts-
martial from the early days of this Nation.”).8 Just as military courts-martial proceedings
for service persons are rationally related to the military’s culture and methods of
discipline, the Institute’s choice to model the hearing after a court-martial is rationally
related to its objective of instilling military culture and discipline in its students.9
Because the Institute had a rational basis for its choice of procedure, Mr. Watson has no
8
See also United States v. Gray, 37 M.J. 751, 718 (A. Ct. Crim. App. 1993)
(holding that it is not an equal protection violation that service members, unlike civilians,
are not entitled to have their cases reviewed by Article III judges); United States v. Curtis,
28 M.J. 1074, 1085 (N-M. Ct. Crim. App. 1989) (holding that it is not a denial of equal
protection to subject service members to the death penalty while civilians are not subject
to the death penalty for the same crime).
9
A military education is unique and procedures for imposing discipline “which
appear harsh in the abstract to Judges more attuned to adversary civilian trials may prove
entirely reasonable within the confines of Academy life.” Wasson v. Towbridge, 382 F.2d
807, 812 (2d Cir. 1967). Due process, therefore, requires only that a student at a military
school “be given a fair hearing at which he is appraised of the charges against him and
permitted a defense.” Id.
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basis for an equal protection claim and the district court’s decision that an amendment
would be futile was correct.
The district court’s order granting summary judgment and denying leave to amend
the complaint, therefore, is AFFIRMED.
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