     Case: 12-50149          Document: 00512108536              Page: 1      Date Filed: 01/10/2013




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

                                                                                      FILED
                                                                                   January 10, 2013

                                            No. 12-50149                             Lyle W. Cayce
                                                                                          Clerk

TATE SMITH,

                                                         Plaintiff - Appellee

v.

DESSIE DAVIS,

                                                         Defendant - Appellant



                      Appeal from the United States District Court
                           for the Western District of Texas
                                 USDC No. 7:11-CV-95


Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
        In this interlocutory appeal, Dessie Davis contests the denial of qualified
immunity against a due-process claim. That defense was presented in her
motion to dismiss Tate Smith’s amended complaint, pursuant to Federal Rule
of Civil Procedure 12(b)(6) (failure to state claim). That operative complaint
claimed, inter alia, violation of due process under the Fourteenth Amendment.
Because Davis is entitled to such immunity for that claim, its denial is



        *
          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 R. 47.5, the court has determined that this opinion should not be published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.
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REVERSED; on REMAND, the due-process claim against Davis is to be
dismissed.
                                        I.
      In addition to Davis, Odessa College, in Odessa, Texas, is a defendant.
The following factual statements are in Smith’s amended complaint.
      In the summer of 2009, Smith enrolled in an introductory English course,
taught by Davis, at the college. Davis knew Smith was a football-scholarship
athlete at the University of New Mexico. He needed a passing grade in Davis’
class to maintain his scholarship and compete in the 2009 football season.
      By 5 August 2009, Smith submitted to Davis a required research essay,
using Odessa College’s computer system: Blackboard. At 9:06 a.m. on 5 August,
Davis e-mailed Smith that she could not open the file due to the file type; he was
instructed: “[R]eread the instructions for the assignment. If you want to turn
it [in] by 5pm today, email me a request to clear this submission. The highest
grade possible will be a 70.” At 2:43 p.m. that day, Smith e-mailed Davis his
paper. She replied at 3:29 p.m.: “Do not email me your essay; if you would like
to submit it via Blackboard, let me know and I will clear your first attempt.”
Very early the next day, at 12:17 a.m., Smith e-mailed Davis to apologize for
misunderstanding, and requested permission to re-submit. Davis replied that
afternoon at 12:38 p.m.: “I am not re-opening the assignment in Blackboard. I
will decide what to do with the emailed copy.”
      Davis reduced Smith’s assignment-grade because she deemed the paper
late, which resulted in Smith’s failing the class. Smith filed a grievance through
the college’s appeal procedure. The appeals committee conducted a hearing in
October 2009, and subsequently denied the appeal.


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      In August 2011, Smith filed this action in state court against Davis and
Odessa Junior College District d/b/a Odessa College, claiming: (1) violation of
due process under the Fourteenth Amendment; and (2) breach of contract under
state law. Following removal to federal court, the college moved to dismiss,
pursuant to Rule 12(b)(1), for lack of subject-matter jurisdiction. It and Davis
also moved to dismiss, pursuant to Rule 12(b)(6), for failure to state a claim upon
which relief can be granted. The district court denied the motions without
prejudice and, sua sponte, ordered Smith to re-plead. In his amended complaint,
he alleged defendants’ actions caused him, inter alia: loss of income for the
payment of tuition, fees, and college expenses at the University of New Mexico;
mental anguish and pain and suffering from being unable to play football at that
university during the 2009 season; and loss of potential earnings through a
professional football contract.
      The college again moved to dismiss, pursuant to Rule 12(b)(1). It and
Davis also again moved to dismiss, pursuant to Rule 12(b)(6). In doing so, Davis
again claimed qualified immunity against the due-process claim.
      In February 2012, the district court dismissed Smith’s breach-of-contract
claim against defendants, but denied dismissal of the due-process claim. In
doing so, the court referenced, but did not address, Davis’ qualified-immunity
defense. Smith v. Odessa Junior Coll. Dist., et al., No. MO-11-CV-095 (W.D. Tex.
11 Feb. 2012).
                                        II.
      At issue in this interlocutory appeal is only whether Davis is entitled to
qualified immunity against the due-process claim that remains pending in this
action. (Again, the court dismissed the breach-of-contract claim against Davis


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and the college.) The denial of qualified immunity, to the extent it turns on an
issue of law, is appealable as a “final decision” pursuant to 28 U.S.C. § 1291,
“notwithstanding the absence of a final judgment”. Mitchell v. Forsyth, 472 U.S.
511, 530 (1985).
      The court’s not awarding qualified immunity to Davis against the due-
process claim, pursuant to her Rule 12(b)(6) motion, is reviewed de novo. E.g.,
Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc). “In so doing,
we must accept all well-pleaded facts as true and draw all reasonable inferences
in favor of the nonmoving party.” Id. On the other hand, Smith has the burden
of demonstrating inapplicability of such immunity. E.g., Cantrell v. City of
Murphy, 666 F.3d 911, 918 (5th Cir. 2012).
      The purpose of the qualified-immunity doctrine is to shield government
officials not only from personal liability, but from suit as well, “when their
actions could reasonably have been believed to be legal”. Morgan, 659 F.3d at
370-71; see Mitchell, 472 U.S. at 526 (“The entitlement is an immunity from suit
rather than a mere defense to liability; . . . it is effectively lost if a case is
erroneously permitted to go to trial.”) (emphasis in original). In that regard,
“pre-existing law must dictate, that is, truly compel (not just suggest or allow or
raise a question about), the conclusion for every like-situated, reasonable
government agent that what defendant is doing violates federal law in the
circumstances”. Pasco v. Knoblauch, 566 F.3d 572, 578-79 (5th Cir. 2009)
(internal quotation marks and citation omitted) (emphasis in original). This
standard protects the balance between upholding constitutional or statutory
rights and ensuring government officials can effectively perform their duties, by




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“reasonably [] anticipat[ing] when their conduct may give rise to liability”. Davis
v. Scherer, 468 U.S. 183, 195 (1984).
      Therefore, a government official’s personal liability for a claimed unlawful
action turns on the “‘objective legal reasonableness’ of the action, assessed in
[the] light of the legal rules that were ‘clearly established’ at the time it was
taken”. Shaboon v. Duncan, 252 F.3d 722, 728-29 (5th Cir. 2001) (quoting
Anderson v. Creighton, 483 U.S. 635, 639 (1987)). To defeat the qualified
immunity asserted in the Rule 12(b)(6) motion, Smith must show: (1) he stated
well-pleaded facts that Davis did not provide due process under the Fourteenth
Amendment; and (2) her challenged conduct was objectively unreasonable in the
light of clearly established law at the time of that conduct. E.g., Morgan, 659
F.3d at 371; Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
      Courts have discretion to decide which of these two prongs to address first,
in the light of the particular circumstances. Pearson v. Callahan, 555 U.S. 223,
236 (2009). First reviewing the second prong (objectively unreasonable conduct
vel non) is often preferable, as it “comports with [the] usual reluctance to decide
constitutional questions unnecessarily”. Reichle v. Howards, 132 S. Ct. 2088,
2093 (2012) (citation omitted).
      To satisfy the second prong, Smith “must be able to point to controlling
authority—or a robust consensus of persuasive authority—that defines the
contours of the right in question with a high degree of particularity”. Morgan,
659 F.3d at 371-72 (internal quotation marks and citations omitted). “Where no
controlling authority specifically prohibits a defendant’s conduct[,] . . . the law
cannot be said to be clearly established. . . . [G]eneralizations and abstract
propositions are not capable of clearly establishing the law”. Id. at 372. While


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there need not be a decision directly on point, “existing precedent must have
placed the statutory or constitutional question beyond debate”. Ashcroft v. Al-
Kidd, 131 S. Ct. 2074, 2083 (2011) (emphasis added).
       Davis asserts Smith fails to satisfy the second prong because, when Davis
assigned Smith’s grade, it was not clearly established he had a property or
liberty interest in the outcome of a dispute concerning it. In response, Smith
asserts: Davis arbitrarily treated Smith’s paper as tardy when he timely filed
it on Blackboard; and, therefore, such treatment was objectively unreasonable.
He also contends this treatment constituted a violation of due process under the
Fourteenth Amendment.
       The Fourteenth Amendment provides that no person shall be deprived “of
life, liberty, or property, without due process of law”. U.S. Const. amend. XIV,
§ 1.    “To be entitled to the procedural protections of the Fourteenth
Amendment”, Smith must demonstrate he was “deprived [] of either a ‘liberty’
or a ‘property’ interest”. Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S.
78, 82 (1978). For example, property interests are created, and their dimensions
defined, “by existing rules or understandings that stem from an independent
source such as state law-rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits”. Bd. of Regents v. Roth,
408 U.S. 564, 577 (1972).
       Smith claims he had a property interest in: the summer 2009 English
course; the grade he received in it; and obtaining a four-year education. He
claims a liberty interest in: his good name; his reputation; and continuing to
play football for the University of New Mexico.




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      Most case law involving due process in the educational setting concerns
student dismissals or suspensions from academic institutions.              In such
circumstances, the Supreme Court has held students are afforded limited due-
process protections, in the form of “an ‘informal give-and-take’ between the
student and the administrative body dismissing him that would, at least, give
the student ‘the opportunity to characterize his conduct and put it in what he
deems the proper context’”. Horowitz, 435 U.S. at 86 (quoting Goss v. Lopez, 419
U.S. 565, 584 (1975)). The Court also recognized there is a “significant difference
between the failure of a student to meet academic standards and the violation
by a student of valid rules of conduct[,] . . . [which] calls for far less stringent
procedural requirements in the case of an academic dismissal”. Id.
      The Court has not held college academic decisions implicate property or
liberty interests, entitling a student to constitutional due-process protections.
Accordingly, our court has followed suit. For example, to the extent our court
has addressed this issue, it has held a student who is not denied access to public
education does not have a property or liberty interest implicated. E.g., Nevares
v. San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26 (5th Cir. 1997) (no
property or liberty interest implicated in transfer from one school program to
another with stricter discipline because student never denied access to public
education, even temporarily, such as through suspension or expulsion); cf. Goss,
419 U.S. at 576 (student’s “total exclusion from the educational process for more
than a trivial period” triggers possible violation of property or liberty interest).
We have “also rejected arguments that there is any protected interest in the
separate components of the educational process”. Nevares, 111 F.3d at 27
(emphasis added); e.g., Jeffrey v. Bd. of Trustees of Bells ISD, 261 F. Supp. 2d


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719, 726 (E.D. Tex. 2003) (no property interest in right to take high-school
Spanish course at different time; “it is only when a student is excluded from the
entire educational system that due process must be afforded”), aff’d, 96 F. App’x
248 (5th Cir. 2004) (per curium). Other circuits have been similarly cautious.
E.g., Hennessy v. City of Melrose, 194 F.3d 237, 249-52 (1st Cir. 1999) (because
Supreme Court has not decided whether university student has constitutionally-
protected property interest in continued enrollment, court assumed interest and
held no violation because hearing not required for academic sanctions); Trotter
v. Regents of Univ. of N.M., 219 F.3d 1179, 1184 (10th Cir. 2000) (no due-process
violation because hearing not required for academic sanctions); Schuler v. Univ.
of Minn., 788 F.2d 510, 514 (8th Cir. 1986) (full procedural safeguards of
Fourteenth Amendment inapplicable where student dismissed from state
university for academic reasons). Smith has neither alleged denial of access to
an education, even on a temporary basis, nor placed in legitimate doubt the
academic nature of Davis’ actions.
      Rather than determine whether a student has a particular property or
liberty interest, the common practice has been the above-discussed
constitutional avoidance, comporting with the “usual reluctance to decide
constitutional questions unnecessarily”. Reichle, 132 S. Ct. at 2093 (citation
omitted); see, e.g., Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 223 (1985)
(assumed property or liberty interest in continued enrollment); Davis v. Mann,
882 F.2d 967, 973 (5th Cir. 1989) (declined to decide whether plaintiff had liberty
or property interest in residency program); Mahavongsanan v. Hall, 529 F.2d
448, 449-50 (5th Cir. 1976) (“[W]e know of no case which holds that colleges and
universities are subject to the supervision or review of the courts in the uniform


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application of their academic standards”.) (quoting Wright v. Tex. S. Univ., 392
F.2d 728, 729 (5th Cir. 1968)) (internal quotation marks omitted).
      As stated, for our analysis of the second prong of the qualified-immunity
test, the objective reasonableness of Davis’ actions must be viewed in the light
of then clearly-established law.   Needless to say, the law was not clearly
established. The limited case law related to the matter, discussed above, does
not “truly compel . . . the conclusion for every like-situated, reasonable
government agent that what [Davis has allegedly done] violates [constitutional
due process] in the circumstances”. Pasco, 566 F.3d at 578-79 (citation omitted)
(emphasis in original). In short, Smith’s asserted property or liberty interests
were not established “beyond debate”; therefore, Davis is entitled to qualified
immunity. Ashcroft, 131 S. Ct. at 2083.
                                      III.
      For the foregoing reasons, the denial of qualified immunity to Davis
against the due-process claim is REVERSED; on REMAND, that claim against
Davis is to be dismissed.




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