                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 03-2119



VICTORIA M. BUTLER,

                                                Plaintiff - Appellant,

           versus

RECTOR AND BOARD OF VISITORS OF THE COLLEGE OF
WILLIAM AND MARY; TIMOTHY J. SULLIVAN,
President; VIRGINIA K. MCLAUGHLIN, Dean;
THOMAS J. WARD, Associate Dean; TERI B.
ANCELLOTTI, Doctor; DENNIS FRANK; CHARLES R.
MCADAMS, III, Doctor,

                                               Defendants - Appellees.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. James E. Bradberry, Magistrate
Judge. (CA-02-85-4)


Argued:   November 30, 2004                 Decided:   February 8, 2005


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.      Judge Gregory wrote a
concurring opinion.


ARGUED: Carolyn P. Carpenter, Richmond, Virginia, for Appellant.
Catherine Crooks Hill, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellees.   ON BRIEF:
Jerry W. Kilgore, Attorney General of Virginia, Judith Williams
Jagdmann, Deputy Attorney General, Edward M. Macon, Senior
Assistant  Attorney   General/Chief,  Richmond,   Virginia,  for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

         Plaintiff-appellant Victoria Butler was expelled from William

and Mary’s School of Education Community Counseling Masters Program

(“Counseling Program”) following the Spring 2002 semester.                   Butler

sued the defendants-appellees, the Rector and Board of Visitors of

the College of William and Mary (“William and Mary”), claiming that

her expulsion violated both procedural and substantive due process

and constituted a breach of contract and tortious interference with

contract under Virginia law.             The district court dismissed all of

Butler’s claims with prejudice pursuant to Federal Rule of Civil

Procedure 50(a).         For the reasons given herein, we affirm.



                                          I.

         In   April   2001,    William    and   Mary   admitted     Butler   to   the

Counseling Program.           For the Spring 2002 semester, Butler enrolled

in   a    course      entitled   “EDC42,       Practicum    in   Counseling”      (the

“Practicum”), an off-campus course taught by Dr. Teri B. Ancellotti

and designed to provide students with their first client contact in

a closely-supervised setting.             As part of the Practicum, students

were asked to find a site where they could conduct videotaped

counseling       sessions.       Butler    performed       the   Practicum   at    the

Prevention Services Department of the Newport News Colonial Services

Board (“CSB”), where she was supervised by CSB employee Amber

Bodner.


                                           3
     Upon hearing from Butler’s doctoral supervisor, Mr. Denny

Frank, of possible problems with Butler’s Practicum, Dr. Ancellotti

contacted Bodner.   Bodner informed Dr. Ancellotti that CSB was only

a prevention site and that she had made clear to Butler that no

counseling occurred there. Bodner further noted that CSB emphasized

to Butler that no videotaping would be permitted at CSB.1        In

addition, Bodner told Dr. Ancellotti that Butler inappropriately

“promot[ed] herself as an individual counselor with professional

experience” and told a client to meet with her secretly for

individual counseling.   According to Bodner, Butler also told the

client that she might lose custody of her children if she disclosed

anything to the CSB counselors. Bodner informed Ancellotti that CSB

would have problems working with Butler in the future.

     On February 7, 2002, Dr. Ancellotti and Mr. Frank met with

Butler to discuss their concerns, among them that Butler had been

deceitful in obtaining approval of her Practicum site and the

allegations of misconduct.    They discussed Bodner’s accusations,

which Butler denied.     Butler stated that others at CSB could

substantiate her version of the events regarding the Practicum, but

Dr. Ancellotti and Mr. Frank did not call those individuals.

     On February 11, 2002, the Counseling Program faculty, including

Dr. Ancellotti and Mr. Frank, met to discuss Butler’s Practicum.



     1
      Butler told CSB that she and William and Mary had “worked
out” the videotaping issue.

                                  4
At that meeting, the faculty decided to remove Butler from the

Practicum and subject her to certain conditions required for her

continuation in the Counseling Program.       Butler was subsequently

informed of this decision and given a written memorandum outlining

the conditions required by the faculty.       Butler was required to,

inter alia, maintain an acceptable rating (level 3 out of 5) on her

“Professional/Personal   Performance    Criteria”   review,   a   student

evaluation system in which Program faculty evaluate students on

semester review forms (hereinafter “Semester Review”). In addition,

Butler was required to meet with her faculty advisor monthly to

discuss her progress.    During this period, Dr. Ancellotti and Mr.

Frank also submitted allegations of ethical and legal misconduct

against Butler based on the same Practicum circumstances to the

School of Education Honor Council.     Butler was ultimately acquitted

of all the charges before the Honor Council.

     In early April, 2002 Butler was informed that she had received

three sub-par Semester Reviews.   Each review rated Butler below the

acceptable level and provided the reasoning behind the ratings.

Faculty members noted, among other things, that Butler “accosted,”

“threatened,” and “stalked” other students and members of the

faculty--making both her fellow students and faculty members scared

and uncomfortable.   Butler was provided copies of these reviews on

April 15, 2002.




                                  5
     In late April 2002, the Program faculty met to discuss Butler’s

status and unanimously recommended to Tom Ward, the Associate Dean

of the William and Mary School of Education, that Butler be expelled

from the program.   Dean Ward reviewed the recommendation and agreed

with it.   He then asked Virginia McLaughlin, Dean of the School of

Education, to review his decision. Butler was told on May, 2, 2002,

that the faculty recommended that she be removed from the program.

     On May 14, 2002, Dean McLaughlin met with Butler to discuss the

faculty recommendation. Butler acknowledges that, at this meeting,

she was given an opportunity to tell her side of the story and

present evidence in support of her desire and fitness to remain in

the program. After considering the evidence, Dean McLaughlin upheld

the decision to remove Butler from the program. Butler was informed

of that decision in writing on May 21st, 2004.

     Subsequently, Butler filed the present action under 42 U.S.C.

§ 1983, alleging that William and Mary violated her substantive and

procedural due process rights by expelling her.    She also claimed

that her expulsion amounted to a breach of contract and tortious

interference with contract under Virginia law.

     The case proceeded to trial on August 21, 2002.   At the close

of Butler’s evidence, William and Mary moved for judgment as a

matter of law on all claims pursuant to Federal Rule of Civil

Procedure 50(a).    The trial court granted the motion and Butler

timely appeals.


                                  6
                                  II.

     The district court should grant a Rule 50(a) motion for

judgment as a matter of law only if the nonmoving party has been

fully heard and, viewing the evidence presented in the light most

favorable to the nonmoving party, there is no legally sufficient

evidentiary basis for a reasonable jury to find for the nonmoving

party.    Fed. R. Civ. P. 50(a)(1); Brown v. CSX Transp., Inc., 18

F.3d 245, 248 (4th Cir. 1994).         We review the district court’s

decision de novo.    Brown, 18 F.3d at 248.



                                  A.

     The Due Process Clause of the Fourteenth Amendment to the

Constitution protects life, liberty, and property interests from

arbitrary government action.     Stewart v. Bailey, 7 F.3d 384, 392

(4th Cir. 1993).    We assume for purposes of this appeal that Butler

has a property interest in continued enrollment in the Program that

is protected by the Due Process Clause.      See Tigrett v. Rector and

Board of Visitors of the Univ. of Va., 290 F.3d 620, 627 (4th Cir.

2002) (noting that the Supreme Court and the Fourth Circuit have

made this assumption). We are nevertheless mindful of the deference

courts traditionally accord academic decision-making. See id. at

629-30.




                                   7
     In order to establish a substantive Due Process violation,

Butler must demonstrate that William and Mary’s actions in expelling

her were so arbitrary and egregious as to “shock the conscience.”

See Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998); see also Dunn

v. Fairfield Community High School Dist. No. 225, 158 F.3d 962, 965

(7th Cir. 1998).       Butler’s claim does not meet this standard.

     Butler relies heavily on the fact that she was “exonerated” by

the Honor Council of charges stemming from the same allegations for

which she was subsequently expelled to argue that the faculty

conduct was “arbitrary” and “egregious.”            Butler contends that “the

College   is   bound    by    the   determination     of   the   Honor   Council

proceedings,” or that, at the very least, a reasonable jury could

conclude that the Program faculty were so bound.            Appellant’s Brief

at 32.    Fatal to Butler’s argument, however, is her failure to

produce   evidence     that    demonstrates   any    relevant    institutional

connection between the student-run Honor Council proceedings and the

faculty-imposed remedial action plan applied to her.              No reasonable

jury could find, based on the evidence Butler presented, that the

Program faculty were bound by, or even connected to, the Honor

Council exoneration.         The two processes were independent.

     The School of Education faculty decided to subject Butler to

remedial actions after considering allegations that she had been

deceitful in obtaining approval of her Practicum site and that she

engaged in misconduct at that site.           Following three independent


                                        8
semester      evaluations,        student     input,    additional      faculty

consideration,     and    an    opportunity   for   input   from   Butler,   the

faculty, Assistant Dean, and Program Dean all agreed to expel Butler

from the Program.

     Butler has not persuaded us that the behavior described above

“shocks the conscience” or otherwise rises to the level of a

substantive due process violation. On the contrary, it appears well

within     the   bounds    of    constitutionally      acceptable     behavior.

Accordingly, we affirm the district court’s dismissal of Butler’s

substantive Due Process claim.

     In addition to substantive due process guarantees, the Due

Process Clause also required William and Mary to provide Butler with

certain     procedural    protection    before      expelling   her   from   the

Program.2    As discussed below, William and Mary’s actions in this

case meet that constitutional burden.

     “At a minimum, the Constitution requires notice and some

opportunity to be heard.”         Mallette v. Arlington County Employees’

Supplemental Retirement System II, 91 F.3d 630, 640 (4th Cir. 1996)

(citing Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,

178 (1951)).     “Above that threshold, due process . . . is ‘flexible


     2
      We assume for purposes of this appeal, but need not decide,
that Butler’s expulsion was for disciplinary and not academic
reasons.    Disciplinary dismissals require greater procedural
safeguards than academic dismissals. See Henson v. Honor Comm. of
Univ. of Va., 719 F.2d 69, 74 (4th Cir. 1983). It is unnecessary
to reach this issue because we conclude that William and Mary’s
conduct satisfies even the more exacting standard.

                                        9
and   calls   for   such   procedural     protections   as   the   particular

situation demands.’”       Id. (quoting Morrissey v. Brewer, 408 U.S.

471, 481 (1972)).     “The nature of the notice and the quality of the

hearing   are   determined    by   the    competing   interests    involved.”

Richardson v. Town of Eastover, 922 F.2d 1152, 1159 (4th Cir. 1991).

      Keeping this flexibility in mind, we view the procedural due

process given to Butler through the three factor balancing test that

the Supreme Court discussed in Matthews v. Eldridge, 424 U.S. 319,

335 (1976).     Specifically, we balance

       [f]irst, the private interest that will be affected by
       the official action; second, the risk of an erroneous
       deprivation of such interest through the procedures
       used, and the probable value, if any, of additional or
       substitute procedural safeguards; and finally, the
       Government's interest, including the function involved
       and the fiscal and administrative burdens that the
       additional or substitute procedural requirement would
       entail.

 Mallette, 91 F.3d at 640 (quoting Matthews, 424 U.S. at 335).

      We note initially that William and Mary certainly provided

Butler with the rudiments of procedural due process--notice and an

opportunity to be heard.      William and Mary informed Butler of the

most serious charges and complaints against her and provided her

with an opportunity to respond. She was given written copies of the

most serious charges against her.            Additionally, she was given

notice of the most grievous punishment--expulsion--12 days before

she met with Dean Laughlin to respond. At that meeting she not only

disputed evidence against her, but also provided her own evidence


                                     10
arguing that she should not be expelled from the program.                 Only

after   considering       that   evidence,    along   with   the   unanimous

recommendation of the faculty as well as Associate Dean Ward, did

Dean McLaughlin decide to expel Butler.

     Considering these facts in light of the Matthews test, we hold

that Butler received the requisite constitutional procedural due

process.     Butler’s interest in remaining in graduate school is

unquestionably high.         However, William and Mary’s interest in

controlling the integrity of its graduate programs is also high.

Accordingly, this case hinges on the second Matthews factor:              “the

risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or

substitute procedural safeguards.”           Matthews, 424 U.S. at 335.

     Butler has not demonstrated how additional procedural process

would have helped her in this case.            Counsel for Butler at oral

argument suggested that a trial-like proceeding, with the attendant

right   to   call   and   cross-examine      witnesses,   should   have   been

afforded.     However, we find no basis in the law, nor does Butler

provide one, for importing such a requirement into the academic

context.

     Butler was given notice and an opportunity to respond to all

charges against her. She does not claim that she had evidence which

she was not able to present because of a lack of procedural

safeguards.    She argues that William and Mary was wrong to believe


                                      11
the charges against her and not believe her.          But that argument,

even if true, does not rise to the level of a procedural due process

violation.

     Therefore, because Butler was afforded substantial process, and

because she cannot demonstrate any probative value that additional

process would have provided, she has not made her claim for a

violation of procedural due process. We affirm the district court’s

dismissal of her procedural due process claim.



                                   B.

     Finally, Butler contends that the district court erred in

dismissing her breach of contract and tortious interference with

contract   claims   against   William   and   Mary.   Specifically,   she

contends that a reasonable jury could conclude that William and Mary

breached a contract with her by expelling her after the Honor

Council refused to punish her.     We disagree.

     Assuming that William and Mary had a contract with Butler, it

did not breach that contract by expelling her after the Honor

Council refused to punish her.     As discussed previously, the Honor

Council and the Program faculty serve two separate and distinct

functions, and Butler has presented no evidence demonstrating that

the Program was bound by the Honor Council decision.         Butler also

has not presented evidence demonstrating that, by expelling her in

the manner that it did, William and Mary breached an express or


                                   12
implied promise to Butler.       In short, Butler’s breach of contract

claim   is    legally   and   factually   baseless.   Because   tortious

interference with contract under Virginia law requires a breach of

contract, Butler’s tortious interference claim also fails.           See

Chaves v. Johnson, 335 S.E.2d 97, 102 (Va. 1985).



                                   III.

     Viewing the evidence presented at trial in the light most

favorable to Butler, we hold that, as a matter of law, there is no

legally sufficient evidentiary basis through which a reasonable jury

could have found for Butler on her due process or contractual

claims.      Accordingly, we hold that the district court did not err

in granting William and Mary’s Rule 50(a) motion.

                                                                AFFIRMED




                                    13
GREGORY, Circuit Judge, concurring in the judgment:

     Victoria Butler (“Ms. Butler”) received the appropriate due

process because the College of William and Mary followed the

procedures outlined in both the Honor Code and the Counseling

Program handbooks.   For this reason, I concur in the judgment to

affirm the district court.

     Ms. Butler has alleged that the College of William and Mary

breached its contract with her by not affording her the proper

procedure when she was expelled from the Counseling Program.   She

claims that her expulsion was for “disciplinary” reasons stemming

from her failed Practicum site, where she was accused of lying. Ms.

Butler argues that if she had not been accused of lying she would

not have been expelled.   Ms. Butler believes that because she was

ultimately acquitted of the Honor Code1 charges related to her

Practicum, the Counseling Program faculty should be foreclosed from

using the same conduct as the basis for her expulsion.      In the

alternative, Ms. Butler contends that she was at least entitled to

another hearing.




     1
      The College of William and Mary’s Honor Council, which
enforces the Honor Code, is a completely student run process that
has jurisdiction over charges of lying, cheating, or stealing.
Those accused of an Honor Code violation are granted trial-like
procedures with a list of rights, including: a right to receive
written notice of the charges against her, the right to have
another willing student act as her student counsel, and the right
to have silent legal counsel present.

                                14
     In early Spring semester 2002, Dr. Teri Ancellotti, a member

of the Counseling Program faculty, became aware of problems that Ms.

Butler was having at her Practicum site.      After contacting the

supervisor at the Practicum site, Dr. Ancelotti and    Ms. Butler’s

doctoral student advisor, Mr. Frank, called Ms. Butler in for an

“information-gathering meeting” to discuss their concerns that Ms.

Butler had been deceitful in obtaining approval for her Practicum

site and that she had been behaving unprofessionally at the site.

The meeting was followed by a series of remedial procedures which

are outlined in the Counseling Program student handbook. A few days

after speaking with Ms. Butler about the problems at the site, Dr.

Ancellotti and Mr. Frank reported Ms. Butler to the Honor Council

based upon the same facts that gave rise to the remedial actions

occurring in the Counseling Program.

     Ms. Butler was charged with five separate counts of lying at

her Practicum site and was given an Honor Council hearing to address

those charges.   The Honor Council found her guilty of two counts of

lying. Ms. Butler appealed. Professor John E. Donaldson, Provost’s

designee to review appeals, reviewed the entire complaint and found

that the Honor Council lacked jurisdiction in four of the five

counts of lying. He also found that there was insufficient evidence

to establish guilt beyond a reasonable doubt on the remaining count.

Professor Donaldson’s findings vacated the Honor Council’s findings

of guilt and acquitted Ms. Butler of all Honor Code charges.


                                 15
        However, the Honor Council proceedings were separate and a part

from the remedial procedures implemented by the Counseling Program

faculty.     The Counseling Program has a student handbook, to which

Ms. Butler must also adhere.2         The handbook provides in relevant

part:

      Students are expected [to] conduct themselves in an
      ethical, responsible and professional manner.

      . . . .

      As counselor educators, the faculty expect prospective
      counselors to be concerned about other people, to be
      stable and psychologically well adjusted, . . . and to be
      able to receive and give constructive feedback.

      . . . .

      Therefore,   the    faculty   believe   part   of   their
      responsibility to the student, the profession and the
      eventual consumers of counseling services provided by
      William and Mary graduates, is to monitor not only
      students’ academic progress but also those personal
      characteristics which will affect their performance in
      the field. The purposes of this monitoring process is
      that   William    &   Mary   graduates    possess   these
      characteristics sufficiently so that they do NOT
      interfere with their professionalism or helping capacity.

J.A. 555 (emphasis added).

      According to the Counseling Program handbook, all Counseling

Program students are reviewed each semester by the faculty for

compliance with the non-academic professional performance standards.

The     non-academic   professional        performance   standards   include



        2
      Ms. Butler testified that she received the Counseling Program
student handbook in the fall 2001 and read and understood the
handbook. J.A. 73, 129.

                                      16
“attention to ethical and legal considerations.”3             J.A. 556.   Based

on the handbook, detailed infra, the Counseling Program faculty

designated certain personal characteristics that are directly linked

to the academic program and the profession, which are to be

monitored by the faculty.     The faculty support the monitoring and

remedial procedure instituted by articulating how these particular

personal characteristics are integral to a student becoming a

competent counselor.     Ms. Butler’s contention that the Counseling

Program faculty is bound by the proceedings before the Honor Council

is meritless -- they are distinct entities.

     The   Counseling    Program        handbook   provides    the   following

procedure if a student does not receive a passing rating under the

performance standards:

     Each standard is rated on a 1 (poor) to 5 (excellent)
     scale. The results of the review are recorded on each
     student’s Semester Review Form . . . . [s]tudents
     receiving a rating of 2 or below on the non-academic,
     professional performance standards will be subject to the
     following procedure:

     1. The student is presented in writing with a copy of the
     review form and the professor’s comments. A copy of the
     form is also given to the full faculty and discussed in
     the next student review meeting.      After the faculty
     discussion, the student and the professor will also meet
     to discuss the form and any recommended remediation
     deemed appropriate.

     2. If a student receives more than one review form during
     any one semester OR receives a review form from more than


     3
      Incidents of lying related to the counseling profession bring
into question a student’s “attention to ethical and legal
considerations” as well as implicate violations of the Honor Code.

                                   17
       one professor during his/her program, the student will be
       required to meet with his or her advisor and the faculty
       member(s) issuing the forms to discuss remediation or
       possible reconsideration of his/her continuation in the
       program. A copy of the forms and any action taken will
       be given to the student and placed in the student’s file.

       3. If a student receives three review forms or more, the
       student will be required to meet with [sic] his/her
       advisor and the faculty members issuing the forms to
       discuss reconsideration of continuation in the program.
       If the faculty determines that the student’s personal or
       professional behavior is inappropriate to the field of
       counseling, and that such behaviors would be a detriment
       in working with others, the denial [of] continuance in
       the program will be recommended to the Associate Dean.

       Policies for review of student during Practicum and
       Internship include the above criteria and procedures as
       well as additional criteria appropriate to the clinical
       experience.

J.A. 556.

       As stated, Dr. Ancellotti and Mr. Frank, met with Ms. Butler,

in the early part of the Spring Semester, to discuss their concerns

that Ms. Butler had engaged in professionally unacceptable behavior

with clients at her Practicum site.      Following that discussion, Ms.

Butler received her first unsatisfactory Semester Review based on

the problems at her Practicum site.         Ms. Butler also received a

letter from the faculty regarding her failed Practicum, which

included several different issues regarding Ms. Butler’s personal

characteristics and how they affected her professionalism.             The

letter included professional determinations by the faculty that: she

gave   inaccurate   information   to    clients,   attempted   to   provide

individual private-home counseling services without supervision,


                                   18
“knowingly present[ed] false information about the field site that

was   critical    to    the    site       approval     process,”    and   that     she

“contradicted specific directives by the Practicum faculty and

supervisor to cease activities at the field site.”                  J.A. 653.      The

faculty’s concerns are directly related to Ms. Butler’s lack of

attention    to   ethical     and    legal      considerations     --   one   of   the

Counseling     Program’s      professional       performance     standards.        Ms.

Butler’s continuance in the program was contingent on her receiving

a rating of level 3 or higher for her professional personal

performance criteria and on following the other directives in the

remedial plan.     Thereafter, Ms. Butler met monthly with her advisor

to chart her progress.

      Approximately a month later, Ms. Butler’s advisor informed her

that she had received two more unsatisfactory Semester Reviews from

faculty   --   rating    her    at    a    level   1   on   several     professional

performance standards.4         The Counseling Program Student handbook

expressly provides that receiving three unsatisfactory Semester

Reviews could result in expulsion.               After Ms. Butler received her

final two unsatisfactory Semester Reviews she met with faculty

members about them.        Subsequently, the Counseling Program faculty



      4
      Specifically, the Semester Reviews rated Ms. Butler at a
level 1 -- for cooperativeness with others, willingness to accept
and use feedback, awareness of own impact on others, ability to
deal with conflict, ability to accept personal responsibility, and
ability to express feelings effectively and appropriately. J.A.
659-664.

                                           19
convened as a whole and recommended to the Associate Dean of the

School of Education that she be dismissed.

       The Associate Dean reviewed Ms. Butler’s record and elected to

follow the faculty’s recommendation.             At the Associate Dean’s

request, the Dean of the School of Education reviewed that decision.

Before making a final decision, the Dean met with Ms. Butler to give

her the opportunity to respond to the faculty’s evaluations and

recommendation.     Ultimately,     the   Dean    accepted    the   faculty’s

recommendation and the Associate Dean’s decision and dismissed Ms.

Butler.   It was only after all of these steps, in direct compliance

with   the   Counseling   Program   handbook,     was   Ms.   Butler   denied

continued enrollment.

       The faculty followed the criteria and procedure outlined in

Counseling Program handbook and afforded Ms. Butler sufficient

opportunities to meet the requirements of the Program. Based on the

particular facts of this case, Ms. Butler received the prescribed

due process. Because Ms. Butler was afforded the proper due process

and William and Mary adhered to both the Honor Code and to the

Counseling Program handbooks, the district court was correct --

there was insufficient evidence to support Ms. Butler’s claim for

breach of contract or tortious interference with a contract.              For

the reasons stated herein, I would affirm the district court.




                                    20
