     Case: 19-10009   Document: 00515171167     Page: 1   Date Filed: 10/23/2019




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


                                 No. 19-10009                       FILED
                                                             October 23, 2019
                                                               Lyle W. Cayce
RAJIN PATEL,                                                        Clerk

             Plaintiff - Appellant

v.

TEXAS TECH UNIVERSITY; DUANE JONES, Individually and in his
Official Capacity as Adjunct Professor; WILLIAM PASEWARK, Individually
and in his Official Capacity as Texas Tech University Rawls College of
Business Associate Dean of Graduate Programs and Research; ROBERT
RICKETTS, Individually and in his Official Capacity as Area Coordinator in
Accounting; BRITTANY TODD, Individually and in her Individual Capacity
as Associate Director of the Office of Student Conduct,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Northern District of Texas


Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
      Rajin Patel appeals the district court’s order granting defendants’ motion
for summary judgment and dismissing his complaint. We affirm.
                                       I.
      Patel, a graduate student at Texas Tech University, sued the university
and several of its officers and agents (collectively, “Defendants”) asserting
substantive due process and equal protection claims in connection with the
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university’s evaluation of allegations that Patel cheated on an exam. The story
begins with a business law final exam administered by Defendant Duane
Jones. While grading the exam, Jones noted distinct similarities between
Patel’s answers and answers from a test bank, indicating Patel may have
cheated. Jones reported Patel to the Office of Student Conduct (“OSC”). In
turn, OSC—led by then-associate director Defendant Brittany Todd—
conducted an internal investigation that resulted in a report adverse to Patel.
OSC then convened a panel that heard evidence from Patel, Jones, and OSC.
The panel found Patel responsible for plagiarism and cheating and assessed
financial and academic penalties. The panel’s determination was based on the
similarities between the test bank answers and Patel’s test answers. Texas
Tech denied Patel’s internal appeal.
       Patel then sued Texas Tech and all individually named Defendants in
their official and individual capacities. He asserted claims under 42 U.S.C.
§ 1983 for substantive due process and equal protection violations, as well as
a breach of contract claim against Texas Tech. Defendants 1 filed motions to
strike Patel’s expert reports and a motion for summary judgment. While it
denied the motions to strike, the district court declined to consider the expert
reports when ruling on summary judgment because the reports were unsworn.
Finding no genuine issue of material fact as to Patel’s claims, the district court
granted Defendants’ motion for summary judgment and dismissed his
complaint. Patel appeals the district court’s failure to consider his expert
reports as well as the summary judgment dismissing his substantive due
process and equal protection claims. 2


       1 The court dismissed Patel’s individual-capacity claims against certain defendants on
qualified immunity grounds. Those rulings are not before us.
      Patel voluntarily dismissed his breach of contract claim before the district court’s
       2

summary judgment ruling.
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                                          II.
      We first address whether the district court erred in refusing to consider
Patel’s unsworn expert reports when ruling on summary judgment. We review
a district court’s evidentiary rulings that determine the summary judgment
record for abuse of discretion. Maurer v. Independence Town, 870 F.3d 380, 383
(5th Cir. 2017). Although that standard is deferential, an “erroneous view of the
law” satisfies it. Id. at 384 (citation omitted).
      The expert reports at issue come from Dr. Robert Coyle and Dr. Alan
Perlman. Dr. Coyle’s report opines that Patel has a learning disability that
requires him to study by rote memorization. Dr. Perlman’s report applies
linguistic theory to conclude that the similarities between Patel’s answers and
the test bank answers are insufficient to show Patel cheated. Although the
district court declined to consider the expert reports because they were
unsworn, it made no finding that the opinions expressed in the reports could
not be placed in admissible form.
      In discounting the reports, the district court mistakenly relied on a prior
version of Federal Rule of Civil Procedure 56 and cases applying it. See Lee v.
Offshore Logistical and Transport, L.L.C., 859 F.3d 353, 354 (5th Cir. 2017) (“In
2010, Rule 56 was amended to clarify and streamline the procedures regarding
summary judgment motions and to make clear the process for supporting
assertions of fact and objecting thereto.”). New Rule 56(c), added in 2010,
permits a party to support or dispute summary judgment through unsworn
declarations, provided their contents can be presented in admissible form at
trial. “Although the substance or content of the evidence submitted to support
or dispute a fact on summary judgment must be admissible . . ., the material
may be presented in a form that would not, in itself, be admissible at trial.” Id.
at 355 (quoting 11 Moore’s Federal Practice–Civil ¶ 56.91 (2017)); see also, e.g.,
Maurer, 870 F.3d at 384 (“At the summary judgment stage, evidence need not
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be authenticated or otherwise presented in an admissible form.”) (citations
omitted). The district court declined to consider Patel’s two reports solely
because they were unsworn, without considering whether those opinions were
“capable of being presented in a form that would be admissible in evidence.” Id.
(quoting LSR Consulting, L.L.C. v. Wells Fargo Bank, NZ, 835 F.3d 530, 534
(5th Cir. 2016)) (cleaned up). This contravened the new summary judgment rule
and was therefore an abuse of discretion. Consequently, we will consider Patel’s
expert reports in determining whether Defendants were entitled to summary
judgment. See Maurer, 870 F.3d at 385 (because the district court mistakenly
excluded evidence under the new summary judgment rule, “[w]e will
. . . consider the [excluded evidence] in determining whether the [movant] was
entitled to summary judgment”); Curtis v. M&S Petroleum, Inc., 174 F.3d 661,
667–68 (5th Cir. 1999) (after first reviewing evidentiary rulings, “[t]hen, with
the record defined, we must review de novo the order granting judgment as a
matter of law”) (citations omitted).
                                        III.
      We now turn to Patel’s contention that the district court erred in
granting Defendants summary judgment. We review a summary judgment de
novo. Ezell v. Kan. City S. Ry. Co., 866 F.3d 294, 297 (5th Cir. 2017). Summary
judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if, under the applicable
substantive law, “its resolution could affect the outcome of the action.” Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir.
2010) (citation omitted).
      Patel’s claims are, in essence, that the university’s evaluation of the
cheating allegations violated his substantive due process and equal protection
rights. In opposing summary judgment, Patel points to evidence—including the
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two expert reports—purporting to show that, contrary to the OSC panel’s
determination, he did not cheat or plagiarize during the final exam. This
misapprehends the gravamen of claims concerning allegedly unconstitutional
academic decisions, such as the one at issue here. “When judges are asked to
review the substance of a genuinely academic decision, . . . they should show
great respect for the faculty’s professional judgment.” Regents of Univ. of Mich.
v. Ewing, 474 U.S. 214, 225 (1985). “Plainly, they may not override [an academic
decision] unless it is such a substantial departure from accepted academic
norms as to demonstrate that the person or committee responsible did not
actually exercise professional judgment.” Id. “Courts must accept, as consistent
with due process, an academic decision that is not beyond the pale of reasoned
academic decision-making when viewed against the background of the student’s
entire career.” Wheeler v. Miller, 168 F.3d 241, 250 (5th Cir. 1999). This
exceedingly narrow scope for judicial review of academic decisions applies to
both due process and equal protection claims. See id. at 252. 3
       With respect to his substantive due process claim, Patel fails to identify
any summary judgment evidence raising a genuine fact issue that Defendants
“did not actually exercise professional judgment” in resolving the cheating
allegations, Ewing, 474 U.S. at 225, or that the result of the process was
“beyond the pale of reasoned academic decision-making,” Wheeler, 168 F.3d at
250. Instead Patel merely asserts, for example, that Jones failed to exercise


       3 The Sixth Circuit recently addressed a similar scenario where a student contested
his dismissal from medical school for cheating on an exam. See Endres v. N.E. Ohio Med.
Univ., 938 F.3d 281 (6th Cir. 2019). Endres does not conflict with our decision here. That case
involved a “procedural due process” claim that the student was not afforded adequate
procedural safeguards before dismissal, id. at 297, not the “substantive due process” claim
Patel asserts. We also note that the Sixth Circuit distinguishes the process constitutionally
required for “academic” versus “disciplinary” decisions. See id. (explaining that dismissal for
“disciplinary misconduct” demands “more robust process” than dismissal for “academic
underperformance”). Our circuit has not had occasion to address this distinction in the
context of procedural due process claims. In any event, it has no bearing on this case.
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professional judgment by reporting him for cheating and that Todd and the
panel failed to adequately investigate the allegations against him. These
conclusory allegations cannot create a genuine fact issue sufficient to defeat
summary judgment. See, e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). The record is devoid of evidence even suggesting that any
Defendants acted unreasonably in reporting, investigating, or resolving the
allegations against Patel. To the contrary, the record reflects that Defendants
followed protocol in reporting and investigating the allegations and that the
result of the process was supported by evidence. In response to this, Patel only
offers evidence suggesting, at most, it may have been reasonable for the
university to conclude that he did not in fact plagiarize or cheat. Again, this
misses the point: the applicable constitutional standard asks not whether Patel
in fact cheated but instead whether the decisionmaker “did not actually
exercise professional judgment” in reaching its decision. Ewing, 474 U.S. at
225. We thus conclude that Patel’s substantive due process claim was properly
dismissed on summary judgment.
      Patel likewise fails to demonstrate a genuine issue of material fact as to
his equal protection claim. He alleges that Jones only reported Patel even
though Jones received an anonymous report that two other unnamed students
may have cheated. This “class of one” equal protection claim requires Patel to
show that “(1) he . . . was intentionally treated differently from others similarly
situated and (2) there was no rational basis for the difference in treatment.”
Lindquist v. City of Pasadena Tex., 669 F.3d 225, 233 (5th Cir. 2012); see also
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Patel points to no
summary judgment evidence creating a genuine fact issue as to either prong.
That is, nothing in the record suggests that Patel was intentionally treated in
a manner irrationally different from other similarly situated students. See
Ewing, 474 U.S. at 228 n. 14 (even when student identifies possible academic
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                                No. 19-10009
comparators through statistical evidence, courts “are not in a position to say”
those students were “similarly situated” for purposes of challenging academic
decisions). We therefore conclude the district court properly granted summary
judgment dismissing Patel’s equal protection claim.
      AFFIRMED




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