                                                                           FILED
                           NOT FOR PUBLICATION                              APR 19 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


T.T., by and through his guardian ad litem,    No. 09-35330
T.M.,
                                               D.C. No. 2:08-cv-00365-JCC
              Plaintiff - Appellant,

  v.                                           MEMORANDUM*

BELLEVUE SCHOOL DISTRICT, a
Washington municipal corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                  John C. Coughenour, District Judge, Presiding

                        Argued and Submitted April 5, 2010
                               Seattle, Washington

Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.

       Plaintiff T.T., by and through his mother T.M., appeals the adverse summary

judgment for Bellevue School District (“school district”), claiming procedural due

process violations arising from his fifty-five day school suspension. Finding the



         *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
district court erred in its consideration of the role of state procedural requirements, we

remand for it to conduct that analysis in the first instance with the benefit of further

fact finding.

      Based entirely on hearsay statements from individuals unaffiliated with the

school, T.T. was initially expelled and later suspended long-term for allegedly

smoking marijuana off campus. Accompanied by his mother, T.T. had two informal

meetings with school officials to discuss the charges, and he also received a formal

hearing followed by an appeal before Bellevue’s Disciplinary Appeals Council

(“DAC”). The school district made no effort to reveal the substance of the witness

statements, produce the witnesses, or have any school official with suspension

authority question them in person. T.T. thus claims he was effectively deprived of any

real ability to defend against the charges, including any opportunity to question and

confront witnesses at his hearing or appeal.

      As a threshold consideration, we affirm the district court’s conclusion that T.T.

has a protected property interest in receiving a public education. See Goss v. Lopez,

419 U.S. 565, 573 (1975). However, the question the district court set aside, which

it should consider on remand, is whether the Washington Administrative Code (“the

Code”) gave T.T. a reasonable expectation of a protected entitlement because the

mandatory nature of the Code sections created a significant substantive restriction on


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the school district’s decision making. See Wedges/Ledges of California, Inc. v. City

of Phoenix, 24 F.3d 56, 62-63 (9th Cir. 1994) (“Wedges/Ledges”).

      Relevant on remand are the two Code sections providing students with certain

procedures, which can, in some instances, entitle a student to “[q]uestion and confront

witnesses.” Wash. Admin. Code 392-400-315; 392-400-270. In particular, the Code

treats the procedures required differently depending on the type of appeal the school

district has chosen to provide, Wash. Admin. Code 392-400-315, and it is unclear

from the record which type of appeal the DAC was conducting. The record also is

unclear whether T.T. requested the opportunity to question or confront his accusers.

See Wash. Admin. Code 392-400-270(2)(c).

      Once further fact finding has resolved these issues, the district court will be able

to consider whether T.T. had a property right in the process afforded under

Washington law.      Violation of an administrative regulation “would not alone

constitute a denial of due process.” Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir.

1989). Nevertheless, “[a]lthough procedural requirements ordinarily do not transform

a unilateral expectation into a protected property interest, such an interest is created

if the procedural requirements are intended to be a significant substantive restriction

on . . . decision making.” Stiesberg v. State of Cal., 80 F.3d 353, 356 (9th Cir. 1996)

(quoting Wedges/Ledges, 24 F.3d at 62). “A protected property interest is present


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where an individual has a reasonable expectation of entitlement deriving from

‘existing rules or understandings that stem from an independent source such as state

law.’” Wedges/Ledges, 24 F.3d at 62 (quoting Bd. of Regents of State Colls. v. Roth,

408 U.S. 564, 577 (1972)).

      Finally, T.T.’s appellate briefs do not allege any error based on state law claims

independent of due process, and therefore any appeal of the state law claims is

waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Nor must we

decide whether the inability to cross-examine in these circumstances is a constitutional

violation in absence of the Washington regulations, where there remains a potentially

narrower ground, involving application of state law, for resolving the case. See

Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 184 (1999)

(“[W]e do not ordinarily reach out to make novel or unnecessarily broad

pronouncements on constitutional issues when a case can be fully resolved on a

narrower ground.”).

      AFFIRMED in part, REVERSED in part, and REMANDED. Each party

shall bear its own costs on appeal.




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