     Case: 12-20352       Document: 00512236778         Page: 1     Date Filed: 05/09/2013




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

                                                                            FILED
                                                                            May 9, 2013

                                     No. 12-20352                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



SHENITA COMB; SHERITA SIMS-COTTON; MINNIE ENGLISH; TRACEY
EADEN; LAKEISHA PARKER; NAOMI FLEMMING; IRIS WILLIAMS;
BEVERLY BASHIR; BRENDA WITHFIELD; KATHY BUTLER;
DEMETRIUS HAWKINS; RANDOLPH NICHOLS; NANCY WATTA,

                                                  Plaintiffs - Appellants
v.

RON ROWELL, Superintendent of Benji’s Special Education Academy,
Incorporated; KAY KARR, Member of the Board of Managers of Benji’s
Special Educational Academy, Incorporated; JAMES HOLMAN, Member of
Board of Managers of Benji’s Special Educational Academy, Incorporated;
EARNESTINE PATTERSON, Member of the Board of Managers of Benji’s
Special Educational Academy, Incorporated; ROBERT SCOTT, Commissioner
of the Texas Education Agency; RICK SCHNEIDER, Former Superintendent
Benji’s Special Educational Academy,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:10-CV-3498


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*


       *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
     Case: 12-20352    Document: 00512236778       Page: 2   Date Filed: 05/09/2013



                                  No. 12-20352

       This appeal arises out of the Texas Education Agency’s closure and
revocation of the charter of Benji’s Special Educational Academy. The plaintiffs
(parents/guardians of students and two teachers) appeal the district court’s
grant of summary judgment in favor of the defendants, officials of the Texas
Education Agency. The parents and guardians claimed that the closure of the
school violated the due process requirements of the Individuals with Disabilities
Education Act (IDEA). The teachers claimed that the closure of the school
violated their constitutional due process rights. The district court granted
summary judgment on the parents/guardians’ IDEA claims on the ground that
they had failed to exhaust administrative remedies. The court granted summary
judgment on the teachers’ claims on the ground that they were at-will employees
and did not have a protected property right in continued employment.
       The plaintiffs argue, for the first time on appeal, that all Texas children
have a constitutionally protected property right to a free public education which
was violated by defendants’ actions. We do not consider arguments that were
not presented to the district court.
       In their reply brief, the plaintiffs contend that their IDEA claims were
changed by amendment into § 1983 claims in their Second Amended Complaint.
That contention is belied by the record. The Second Amended Complaint clearly
alleges violations of the IDEA.        The district court correctly held that the
plaintiffs cannot escape the administrative exhaustion requirements of the IDEA
by pleading a cause of action under § 1983 based upon violations of their IDEA
rights to notice.
       The plaintiffs argue that the district court erred by granting summary
judgment on the teachers’ claims when it had earlier denied a motion to dismiss
for failure to state a claim based on the same evidence. This argument is



R. 47.5.4.

                                          2
    Case: 12-20352     Document: 00512236778     Page: 3   Date Filed: 05/09/2013



                                  No. 12-20352

without merit. In ruling on the motion to dismiss, the district court could not
consider the teacher plaintiffs’ employment contracts, which contain an “At Will
Statement.” However, on summary judgment, that evidence was properly
considered by the district court and supports its conclusion that the teachers did
not have a protected property interest in continued employment.
      In sum, based on our review of the record and the briefs, we conclude that
the district court did not err by granting summary judgment in favor of the
defendants. We AFFIRM the summary judgment essentially for the reasons
stated by the district court in its thorough, well-reasoned opinion.
                                                                    AFFIRMED.




                                        3
