                    UNITED STATES COURT OF APPEALS

                           FOR THE TENTH CIRCUIT



 S.V. DIXON,

              Plaintiff-Appellant,

 v.                                                     No. 99-2245
                                               (D.C. No. CIV-98-725-SC/DJS)
 REGENTS OF THE UNIVERSITY                               (D. N.M.)
 OF NEW MEXICO,

              Defendant-Appellee.


                                     ORDER
                             Filed November 1, 2000


Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.



      This matter is before the court on petition of appellant S. V. Dixon for

rehearing of this court’s order and judgment filed October 6, 2000. The hearing

panel grants the petition in part and issues a revised order and judgment which

modifies the language of footnote four concerning a private cause of action under

the Family Education Rights and Privacy Act (FERPA).

      The members of the hearing panel have considered appellant’s arguments

on the merits of this court’s disposition of his appeal, and conclude that the
original disposition was correct. Therefore, the petition for rehearing is denied

on the merits. A copy of the corrected order and judgment is attached.

                                               Entered for the Court
                                               Patrick Fisher, Clerk of Court

                                               By:
                                                     Keith Nelson
                                                     Deputy Clerk




                                         -2-
                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           NOV 1 2000
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

    S.V. DIXON,

                  Plaintiff-Appellant,

    v.                                                    No. 99-2245
                                                 (D.C. No. CIV-98-725-SC/DJS)
    REGENTS OF THE UNIVERSITY                              (D. N.M.)
    OF NEW MEXICO,

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

         After being expelled from the University of New Mexico School of

Medicine, plaintiff S.V. Dixon filed this action alleging that the Regents of


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the University of New Mexico (the University) violated her rights under the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-213 and the

Rehabilitation Act, 29 U.S.C. §§ 701-96. She also made claims under the

Civil Rights Act of 1871, 42 U.S.C. § 1983, asserting procedural due process,

substantive due process, and equal protection violations. The district court

granted defendant’s motion for summary judgment. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.


                                 BACKGROUND

      Ms. Dixon’s academic record shows that she had difficulty in gaining

admittance to the medical school, in fulfilling course requirements, and in passing

required national examinations. She eventually completed her second year of

course work and, in May 1994, began phase II of medical school in the University

hospital, consisting of clinical rotations focusing on various medical specialties.

Although Ms. Dixon’s performance was satisfactory in other third-year rotations,

she failed the obstetrics-gynecology rotation (reputedly a high-stress endeavor)

for performance and behavioral problems and also because she did not pass the

final examination.

      In April 1995, the University required Ms. Dixon to take a leave of

absence, during which time she sought treatment for emotional difficulties.

Later that year, she requested reinstatement, submitting a letter from her treating

                                         -2-
therapist indicating the belief that Ms. Dixon “ha[d] recovered from her episode

of depression” and was “continuing to work on other personal issues.”

Appellant’s App. at 268. The therapist thought that Ms. Dixon, if re-admitted,

would “function better academically,” “be more capable of functioning

interpersonally on clinical rotations,” and could now “manage the academic

and interpersonal stressors.”   Id.

       The Committee on Student Promotions and Evaluations II allowed

Ms. Dixon to return in September 1995, but required her to re-take all her

third-year rotations and continue treatment with her therapist. The academic

year following reinstatement, Ms. Dixon passed rotations in family medicine,

pediatrics, and internal medicine. As for the obstetrics-gynecology rotation,

the supervising physician and other members of the department noted a general

improvement in her performance, but they continued to have serious reservations

about her ability to function in a clinical setting. Ms. Dixon again failed the

final examination. In spite of misgivings about Ms. Dixon’s performance, the

supervising physician permitted her to take the examination a third time. On this

attempt, she passed with a marginal grade.

       On November 26, 1996, a Committee on Student Promotions and

Evaluations II convened to discuss Ms. Dixon’s performance problems and

her potential dismissal from medical school. On that day, for the first time,


                                         -3-
Ms. Dixon was informed that she had passed the written examination in

obstetrics-gynecology on her third try. At the meeting, Ms. Dixon was not

permitted to question witnesses or present witnesses of her own, but both she and

her therapist testified. The Committee recommended that Ms. Dixon be expelled

because the “totality of [her] poor academic performance is such that the

Committee found [she was] an unsuitable candidate for the MD degree and that

[she did] not possess the qualities and skills necessary to enable [her] to be a safe

and effective practitioner of medicine.” Appellant’s App. at 257. The letter

informing Ms. Dixon of the decision also notified her of appeal rights.

      Ms. Dixon’s appeal letter was untimely; however, the Dean of the

medical school allowed it to proceed to the next level, the Education Council.

Ms. Dixon made both written and oral presentations before that body.

Although the Education Council found fault with the way the Department of

Obstetrics-Gynecology dealt with her final examination, it upheld the

Committee’s decision.

      Ms. Dixon then appealed to the Dean, alleging that she had not been

provided a fair and impartial hearing. The Dean reviewed Ms. Dixon’s “overall

academic and non-cognitive performance over the five years that [she had] been

pursuing [her] medical education.” Appellant’s App. at 235. He also met with

Ms. Dixon and interviewed some of the individuals she identified as being


                                          -4-
familiar with her work. The Dean made the ultimate decision to expel Ms. Dixon

based on her “failure to satisfactorily remediate the OB/Gyn clerkship and on

[her] continued poor academic performance.”         Id.

       Ms. Dixon then filed this lawsuit, arguing that the University had denied

her substantive and procedural due process at all levels and failed to

accommodate her emotional problems, as required by the ADA and Rehabilitation

Act. The district court entered summary judgment in favor of the University,

holding that plaintiff could not prove (1) that she was entitled to the protection

of the ADA and Rehabilitation Act because she could not prove she had a

statutorily-cognizable disability or handicap; or (2) that her constitutional rights

had been violated in any way. Upon the district court’s entry of summary

judgment, Ms. Dixon appealed, arguing that the district court erred in analyzing

her claims.


                                      DISCUSSION

       We review de novo the district court’s decision granting summary judgment

and apply the same legal standard as the district court.   See Bullington v. United

Air Lines, Inc. , 186 F.3d 1301, 1313 (10th Cir. 1999). Summary judgment is

appropriate on a record demonstrating 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). “[W]e view the factual record and inferences

                                             -5-
therefrom in the light most favorable to the nonmoving party.”      Bullington ,

186 F.3d at 1313.

                              Disability-related claims

      As a threshold matter, we must address the University’s motion for leave to

file a supplemental memorandum in order to assert that it has Eleventh

Amendment immunity from an ADA claim.            See Buchwald v. University of N.M.

Sch. of Med. , 159 F.3d 487, 494 n.3 (10th Cir. 1998) (noting that the University

of New Mexico School of Medicine and university regents are “arms of the state”

and entitled to Eleventh Amendment immunity). The University’s argument was

based on the Supreme Court’s holding that the Eleventh Amendment precludes

claims under the Age Discrimination in Employment Act (ADEA) against the

states. Kimel v. Florida Bd. of Regents    , 120 S. Ct. 631, 650 (2000). In light of

the Kimel decision, this court has reconsidered our prior determination in     Martin

v. Kansas , 190 F.3d 1120, 1127-28 (10th Cir. 1999), that the ADA abrogated the

states’ Eleventh Amendment immunity.        See Cisneros v. Wilson , No. 98-2215,

2000 WL 1336658 (10th Cir. Sept. 11, 2000). At the conclusion of its analysis,

a panel of this court concluded that, unlike the ADEA, the ADA amounted to

a valid abrogation of Eleventh Amendment immunity.          See id. at *16. It therefore

reaffirmed the Martin holding. See id.




                                           -6-
       “‘We are bound by the precedents of prior panels [of this court] absent

en banc reconsideration or a superseding contrary decision by the Supreme

Court.’” United States v. Malone , 222 F.3d 1286, 1294 (10th Cir. 2000) (quoting

In re Smith , 10 F.3d 723, 724 (10th Cir. 1993)).     1
                                                          Because Cisneros holds that the

states are not immune from ADA claims, we proceed to the merits of Ms. Dixon’s

ADA claim.

       Ms. Dixon argues that the district court erred in concluding that she did not

have a disability as defined by the ADA.        See Poindexter v. Atchison, Topeka

& Santa Fe Ry. Co. , 168 F.3d 1228, 1230 (10th Cir. 1999) (holding that the

disability determination is a matter of law for the court to decide).     2
                                                                              The Supreme

Court has developed a three-step process for making the relevant determination.

The plaintiff must (1) identify an impairment recognized by the ADA; (2)          state

the relevant major life activity as that term is defined under the ADA; and

(3) show that the impairment substantially limits the major life activity.

Poindexter , 168 F.3d at 1230 (citing     Bragdon v. Abbott , 524 U.S. 624, 631

(1998)). “[A] plaintiff must articulate with precision the impairment alleged and

1
       We note, however, that the Supreme Court has granted certiorari on the
Eleventh Amendment immunity issue.       See University of Ala. at Birmingham Bd.
of Trustees v. Garrett , 120 S. Ct. 1669 (2000).
2
       The ADA defines disability as: “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(2).

                                             -7-
the major life activity affected by that impairment.”    Id. at 1232. A general

statement that the plaintiff has an impairment substantially impacting a major

life activity will not suffice.   See id.

       Here, Ms. Dixon gives her claim of depression only vague contours and

fails to articulate any particular major life activity that was affected by the

asserted impairment.      See Appellant’s Br. at 8 (stating generally that “her

depression [a]ffected ever[y] part of her life”). Furthermore, there is no evidence

that the University regarded her as having a disability. The district court correctly

determined that Ms. Dixon has failed to show a disability under the ADA.

       Ms. Dixon also asserts cause of action under the Rehabilitation Act, which

prohibits discrimination against disabled persons who are otherwise qualified for

participation in programs receiving federal funding, including grants to public

universities, see 29 U.S.C. § 794(a), (b)(2)(A). The Rehabilitation Act      defines

“disability” in the same way as the ADA.       See Bragdon , 524 U.S. at 624, 631.

Therefore, Ms. Dixon’s Rehabilitation Act claim suffers from the same flaw

as her ADA claim: lack of a showing that she has a disability covered by the

applicable statute.

       Based on the record before us, Ms. Dixon is not entitled to the protections

of either the ADA or the Rehabilitation Act. Accordingly, we need not reach any

issues concerning the accommodations she wished to receive from the University.


                                            -8-
                                 Constitutional claims

       Plaintiff asserts that she was deprived of both procedural and substantive

due process. “[P]rocedural due process ensures that a state will not deprive

a person of life, liberty or property” without employing “fair procedures;

substantive due process, on the other hand, guarantees that the state will not

deprive a person of those rights for an arbitrary reason regardless of how fair

the procedures” used.    Hennigh v. City of Shawnee      , 155 F.3d 1249, 1253

(10th Cir. 1998) (quoting    Archuleta v. Colorado Dep’t of Insts., Div. of Youth

Servs. , 936 F.2d 483, 490 (10th Cir. 1991) (alteration in    Archuleta )).

       For both types of claims, a plaintiff must show possession of an interest to

which due process protection attaches.      See Watson v. University of Utah Med.

Ctr. , 75 F.3d 569, 577 (10th Cir. 1996) (procedural due process);     Clinger v.

New Mexico Highlands Univ. , 215 F.3d 1162, 1167 (10th Cir. 2000) (substantive

due process). It has not been “clearly established” that a plaintiff holds

a “‘property’ or ‘liberty’ interest in continued enrollment at the [University of

New Mexico] Medical School despite [her] academic failures.”          Trotter v.

Regents of the Univ. of N.M.     , 219 F.3d 1179, 1184 (10th Cir. 2000). For

purposes of the instant case, however, we assume without deciding that plaintiff

has such a protected interest.

       Turning to Ms. Dixon’s procedural due process claim, we must determine


                                            -9-
whether she was afforded “an appropriate level of process.”      Watson , 75 F.3d

at 577. Our review of the record reveals that she had the opportunity to

present written evidence and make oral statements to the responsible university

officials. “[T]he due process clause does not require that a student dismissed

from a state medical school for academic reasons be given a hearing.”      Trotter ,

219 F.3d at 1185 (citing   Board of Curators of the Univ. of Mo. v. Horowitz   ,

435 U.S. 78, 86 (1978)).   3
                               Ms. Dixon was accorded all the process required

by the Fourteenth Amendment.       4




3
        The Supreme Court has observed that procedural due process requirements
for students may vary depending on whether the action taken is “disciplinary”
or “academic.” Board of Curators , 435 U.S. at 87-90. To the extent Ms. Dixon
asserts that she was entitled to the additional procedural protections that may
attach to disciplinary expulsions, the argument is unavailing. In  Board of
Curators , the Court explained that a decision to dismiss the respondent from
medical school

      rested on the academic judgment of school officials that she did not
      have the necessary clinical ability to perform adequately as a medical
      doctor and was making insufficient progress toward that goal. Such
      a judgment is by its nature more subjective and evaluative than the
      typical factual questions presented in the average disciplinary
      decision. Like the decision of an individual professor as to the
      proper grade for a student in his course, the determination whether to
      dismiss a student for academic reasons requires an expert evaluation
      of cumulative information and is not readily adapted to the
      procedural tools of judicial or administrative decisionmaking.

Id. at 89-90. The University’s decision regarding Ms. Dixon was genuinely
“academic.”
4
      Ms. Dixon also asserts that the University violated her procedural due
                                                                     (continued...)

                                           -10-
       For a substantive due process claim, Ms. Dixon must show that the

University’s actions “would shock the conscience of federal judges,”     or “were

arbitrary or lacking a rational basis.”   Tonkovich v. Kansas Bd. of Regents   ,

159 F.3d 504, 528-29 (10th Cir. 1998) (quotations omitted). Here, the

University’s decision to dismiss Ms. Dixon was a product of ordered professional

judgment and was not shocking, arbitrary, or irrational in any way. Accordingly,

she was not denied substantive due process.


                                      CONCLUSION

       For the reasons stated above, we conclude that the district court correctly

entered summary judgment in favor of the University. We AFFIRM the district

court’s judgment. The University’s motion for leave to file a supplemental

memorandum is denied.




4
 (...continued)
process rights because it did not comply with the regulations developed under
the Family Education Rights and Privacy Act (FERPA), 20 U.S.C. § 1232(a)(2)),
or its own procedures. FERPA does not create a direct private cause of action,
see Fay v. South Colonie Cent. Sch. Dist. , 802 F.2d 21, 33 (2d Cir. 1986), or
expand constitutional rights, Falvo v. Owasso Indep. Sch. Dist. No. I-011 , No. 99-
5130, 2000 WL 1472451, *3 (10th Cir. Oct. 4, 2000). Although we recognize that
certain violations of FERPA provide a basis for a civil rights lawsuit under 42
U.S.C. § 1983, see id. at *6 (discussing a privacy right contention), we determine
that, in this case, Ms. Dixon has no actionable FERPA-related claim. Moreover, a
school’s failure to follow its own procedures does not, in itself, give rise to a due
process violation. See Trotter , 219 F.3d at 1185 (citing cases).

                                           -11-
       Entered for the Court



       Stephen H. Anderson
       Circuit Judge




-12-
