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

                                                                            FILED
                                                                           June 20, 2008
                                     No. 07-60893
                                                                      Charles R. Fulbruge III
                                   Summary Calendar
                                                                              Clerk


EDWARD SENU-OKE,

                                                  Plaintiff-Appellant,

v.

JACKSON STATE UNIVERSITY; DOCTOR RONALD MASON, JR.; DOCTOR
JOSEPH STEVENSON; and DOCTOR VELVELYN B. FOSTER,

                                                  Defendants-Appellees.


                   Appeal from the United States District Court
             for the Southern District of Mississippi, Jackson Division
                              USDC No. 3:06-CV-468


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Following the termination of his participation in an educational program,
Edward Senu-Oke sued under 42 U.S.C. § 1983, claiming due process violations
and national origin discrimination. He appeals a summary judgment dismissing
his federal claims against the individual defendants:                Dr. Ronald Mason,
President of Jackson State University (“JSU”); Dr. Joseph Stevenson, founding



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-60893

director of the educational program at issue; and Dr. Velvelyn B. Foster, Vice
President for Academic Affairs and Student Life at JSU.1 We affirm.
                                    BACKGROUND
       The basic facts are largely undisputed. Beginning in fall 2004, JSU offered
an Executive Ph.D. program (“EPhD”) in Urban Higher Education, described as
a unique, non-traditional program for professionals who wished to obtain a
doctorate degree in higher education. The university had a separate admissions
committee for EPhD consisting of representatives from various disciplines
involved in the program. EPhD was designed as an accelerated, cohort-based
program in which the students would take all of their classes with each other,
usually on long weekends once a month over a period of two years. Students
were required to complete a dissertation while completing their courses.
       Senu-Oke is currently (and was in 2004) the Chair of the Department of
Social and Behavioral Sciences at Joliet Junior College in Joliet, Illinois. He is
a native citizen of Nigeria. Senu-Oke planned to return to Nigeria in 2006 to
campaign for governor of his state, and he thought that a doctorate would be a
good credential to obtain. Senu-Oke applied for the EPhD inaugural cohort and
was advised in June 2004 that he had been accepted for admission. He signed
an EPhD Agreement and made a deposit of $2,000 to hold his place. In August
2004, Senu-Oke arrived at JSU for a week-long orientation.                       The EPhD
orientation included academic modules and lectures on such topics as
dissertation methodology.
       On the first full day of the orientation, Senu-Oke received a phone call
from the chairman of the board of trustees from his college advising him that the
president of his college had resigned and that Senu-Oke should return
immediately to be considered for the presidency. Senu-Oke left that day without

       1
        Senu-Oke does not appeal the district court’s dismissal of his federal claims against
JSU and against the individuals in their official capacities. Likewise, he does not appeal the
remand of his Mississippi state law claims for breach of contract and intentional infliction of
emotional distress.

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successfully contacting Dr. Stevenson or informing other EPhD staff. Dr. Fran
Bridges, who was at that time the Pre-Planning Coordinator for the EPhD
program, became concerned about Senu-Oke’s absence and telephoned his
contact numbers the next day to check on him. After Dr. Bridges reached Senu-
Oke in his Joliet office, Senu-Oke explained on the phone and in a follow-up
email that he had left to attend to a job-related emergency, but he did not
explain further. University officials were under the impression that Senu-Oke
left to attend a retirement function for the president of his college.
      Senu-Oke requested that he be allowed to “go forward and conclude the
registration process.” His request was denied by telephone and again later in a
letter from Dr. Stevenson. The letter to Senu-Oke stated:
      [Y]our absence [from orientation] . . . did not allow you access to the
      information and experiences shared from the guest lecturers and the
      cohort, especially with regard to the preparation for the dissertation. You
      were also absent during registration without arrangements to complete
      the process. . . .

      . . . At this time we are prepared to accept a request from you to be
      considered for the next cohort. . . . As a good faith effort, we are willing to
      return your $2,000 deposit minus the hotel charges.

The letter also stated that Senu-Oke’s actions breached the EPhD Agreement
and “compromise[d] the plan of study as designed.” Senu-Oke made further
phone calls and sent emails and letters but was not forthcoming about the full
reason for his absence. He was told that the decision regarding the current
year’s EPhD program was final.
      Senu-Oke tried to obtain a face-to-face meeting with Dr. Stevenson to
explain the situation in person and to plead his case to be part of the inaugural
cohort, but Dr. Stevenson declined to meet with him. Eleven months later,
Senu-Oke obtained counsel and unsuccessfully tried to obtain a hearing. After
he filed a notice of claim in October 2005 pursuant to state law, Senu-Oke finally
obtained a meeting with Dr. Stevenson. Senu-Oke offered several proposals that


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would enable him to obtain his doctorate by the end of 2006 as he desired, but
Dr. Stevenson declined to accommodate his requests. Senu-Oke then met with
Dr. Stevenson’s boss, Dr. Foster, who ultimately provided the same negative
response.
      Senu-Oke filed a lawsuit in Mississippi state court, and the defendants
removed the case to federal court. The district court held, inter alia, that the
individual defendants in their individual capacities were entitled to qualified
immunity. Senu-Oke appeals.
                                    ANALYSIS
      Senu-Oke alleges two claims under § 1983: (1) that his right to due process
was violated when Dr. Stevenson “dismissed” him from the EPhD program and
refused to give him a hearing; and (2) that the defendants discriminated against
him on account of his national origin in violation of his equal protection rights.
      This court reviews the grant of summary judgement de novo. Ray v.
Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995). Summary judgment
is appropriate when “there is no genuine issue as to any material fact and . . .
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
I. Qualified Immunity
      Government officials performing discretionary functions are protected
from personal liability by the doctrine of qualified immunity “‘insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” McClendon v. City of Columbia,
305 F.3d 314, 322 (5th Cir. 2002) (en banc) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). To determine whether an official is entitled to qualified
immunity from a suit alleging a constitutional violation, we conduct a familiar
two-step inquiry. First, we ask whether, considered in the light most favorable
to the plaintiff, the plaintiff has alleged facts that, if proven, would establish
that the official violated the plaintiff’s constitutional rights. Saucier v. Katz, 533
U.S. 194, 201 (2001); Stotter v. Univ. of Tex., 508 F.3d 812, 823 (5th Cir. 2007).

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Next, we ask whether the right was clearly established. Saucier, 533 U.S. at
201. Even if a constitutional right may have been violated, the official is entitled
to qualified immunity unless the court finds that the official’s conduct was
objectively unreasonable in light of clearly established law at the time of the
state actions at issue. McClendon, 305 F.3d at 323. For a right to be “clearly
established” for purposes of qualified immunity, “the contours of the right must
be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (internal quotation
marks omitted).
      If qualified immunity is raised in a motion to dismiss, “it is the defendant’s
conduct as alleged in the complaint that is scrutinized for ‘objective legal
reasonableness.’” Behrens v. Pelletier, 516 U.S. 299, 309 (1996). “On summary
judgment, however, the plaintiff can no longer rest on the pleadings . . . and the
court looks to the evidence before it (in the light most favorable to the plaintiff)
when conducting the Harlow inquiry.” Id. (citation omitted). In the present
case, significant discovery occurred prior to summary judgment, and this court’s
task is to examine the summary judgment record to determine whether Senu-
Oke has adduced sufficient evidence to raise a genuine issue of material fact
suggesting (1) that the defendants’ conduct violated an actual constitutional
right; and (2) that the defendants’ conduct was objectively unreasonable in light
of law that was clearly established at the time of their actions. See McClendon,
305 F.3d at 323.
II. Procedural Due Process Claim
      The parties dispute whether Senu-Oke possessed a property interest in
continuing in the EPhD program. Although Senu-Oke was accepted to the EPhD
program, signed an agreement, and paid a deposit, he left the EPhD orientation
prior to completing the process of registration or paying his tuition and fees. He
points out that the Mississippi Supreme Court has stated that “the student-

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university relationship is contractual in nature.” Univ. of Miss. Med. Ctr. v.
Hughes, 765 So.2d 528, 535 (Miss. 2000). Senu-Oke claims that he “had a
property interest in the form of a contract and that the defendants acted
unreasonably in denying him this property interest without adequate due
process.” His state law claim for breach of contract was remanded to the state
courts and remains pending.
      Even assuming arguendo that Senu-Oke had a property interest in the
EPhD program, it is clear that Senu-Oke was accorded at least as much
procedural due process as the Fourteenth Amendment requires. If a public
school dismisses a student for “disciplinary reasons,” the student is entitled to
“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.’” Bd.
of Curators v. Horowitz, 435 U.S. 78, 86 (1978) (finding that the procedural due
process accorded had been more than sufficient and did not require a hearing for
a student dismissed from medical school for academic cause) (quoting Goss v.
Lopez, 419 U.S. 565, 584 (1975)). An academic dismissal, however, “calls for far
less stringent procedural requirements” and certainly does not require a formal
hearing. Horowitz, 435 U.S. at 86, 88.
      Senu-Oke left the university prior to the first full day of EPhD orientation
and was thereafter denied the opportunity to return in the middle of orientation,
to complete the registration process, and to continue in the program. The
orientation was an important part of the cohort’s academic program and
included information regarding preparation for the dissertation. In a letter, Dr.
Stevenson denied Senu-Oke’s requests to return because Senu-Oke’s absence
had “compromise[d] the plan of study as designed.” There was no allegation of
any misconduct on Senu-Oke’s part, and in fact he was invited to apply for the
next year’s EPhD program. The defendants’ decision was clearly made for
“academic reasons,” and the courts are reluctant to interfere with academic

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evaluations, particularly at the higher educational levels. See Horowitz, 435
U.S. at 85 n.2 (“A graduate or professional school is, after all, the best judge of
its students’ academic performance and their ability to master the required
curriculum.”).
       Senu-Oke claims that “receiving and responding to emails and letters” was
not sufficient due process and that he should have been accorded “at least an
informal hearing or other direct contact to enable Senu-Oke to explain in detail
his reasons for leaving the orientation and to explain why he should be allowed
to continue in the program.” Senu-Oke is incorrect. He was not entitled to a
face-to-face meeting. He had the opportunity to plead his case in writing, and
he chose not to be forthcoming about the reason for his absence.2 At most, Senu-
Oke was “dismissed”3 for academic reasons, which requires a lower level of due
process than a dismissal for disciplinary reasons. Even when a student is
dismissed for disciplinary reasons, he is not entitled to a formal hearing but only
to an “informal give-and-take” with the school to have an “opportunity to
characterize his conduct,” and Senu-Oke received such an opportunity. See
Horowitz, 435 U.S. at 86. No due process violation has been shown.




       2
         Senu-Oke stated that he did not want to fully explain his departure in writing because
of the sensitive nature of the situation, and he claimed a cultural concern about it being “overly
presumptuous” to discuss possibly assuming the presidency when it had not been offered to
him. He also expressed concern about the potential for his employer learning from emails
about his “dismissal” from the EPhD program and drawing negative inferences. Nevertheless,
he was given the opportunity to inform the EPhD program of his situation, and it was his
choice to wait for a possible in-person meeting to explain the details of his departure.
Senu-Oke communicated back and forth with the EPhD program, which made an academic
decision that he could not return, and he received more than sufficient due process.
       3
         Senu-Oke argues that the district court was incorrect to characterize the events as
akin to an “academic dismissal.” Because he had not been allowed to register, he claims he
was not a student and could not be “dismissed” from anything. He argues, without citing legal
authority, that he was deprived of his property interest not by a “dismissal” but by the
defendants’ refusal to honor the contract between Senu-Oke and the EPhD program by
allowing Senu-Oke to register and continue in the program. Regardless, Senu-Oke received
sufficient procedural due process.

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      We have considered the summary judgment record in the light most
favorable to the plaintiff, and Senu-Oke has not raised a genuine issue of
material fact regarding the existence of a due process violation. The summary
judgment motion was properly granted.
III. Discrimination Claim
      Defendants’ summary judgment motion also argued that Senu-Oke
proffered no evidence, direct or circumstantial, that they discriminated against
him because of his Nigerian descent. To prevail on their motion, the defendants
were not required to “prove a negative . . . on an issue that the plaintiff must
prove at trial. [They] need[ed] only [to] point to an absence of proof on plaintiff’s
part and, at that point, plaintiff [had to] designate specific facts showing . . . a
genuine issue for trial.” Parker v. Sony Pictures Entm’t, 260 F.3d 100, 111 (2d
Cir. 2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)) (internal
quotation marks omitted). Senu-Oke could not do so.
      In support of his discrimination claim, Senu-Oke can point only to
evidence that (1) he was the only foreign national admitted to the program
during its first three years; (2) he was dismissed or refused admission because
he missed the first two days of orientation; and (3) none of the other students in
the EPhD program was dismissed even though some of them missed classes (but
not the orientation).    Senu-Oke did not demonstrate that he was treated
differently from any other similarly situated individual, and his unsupported
opinion that he was discriminated against does not constitute evidence of the
defendants’ intent. See Ray, 63 F.3d at 435 (stating that “bald assertions of . . .
discrimination are inadequate to permit a finding that proscribed discrimination
motivated [the defendant’s] actions against [the plaintiff]”). Senu-Oke’s evidence
does not raise a genuine issue of material fact as to whether the defendants
intentionally discriminated against him based on his national origin.
Accordingly, the district court properly granted summary judgment.



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                        CONCLUSION
Finding no error in the district court’s ruling, we AFFIRM.




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