                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         April 22, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
GRACE LEE,

      Plaintiff - Appellant,

v.                                                        No. 15-3189
                                               (D.C. No. 2:12-CV-02638-JAR-TJJ)
JAMES A. GUIKEMA; JAMES W.                                  (D. Kan.)
NEILL, in their individual and official
capacities,

      Defendants - Appellees,

and

KANSAS STATE UNIVERSITY; CAROL
W. SHANKLIN; DUANE W.
CRAWFORD; HAIYAN WANG;
HEATHER M. REED,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, PORFILIO, and BALDOCK, Circuit Judges.
                  _________________________________




       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Grace Lee, a former graduate student at Kansas State University (KSU), appeals

pro se from a district court order that found her 42 U.S.C. § 1983 due-process claim

against Drs. James A. Guikema and James W. Neill barred by qualified immunity.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                      BACKGROUND

       Lee was enrolled in the doctoral program at KSU’s statistics department and

worked as a graduate teaching assistant. To obtain a Ph.D., Lee needed an advisor “to

supervise [her] research on [a] chosen dissertation topic.” R., Vol. I at 718. The topic “is

often related to the [advisor’s] area of research,” and because the advisor expends time

and provides expertise in the student’s preparation of the dissertation, “the topic

remain[s] with the [advisor] if sufficient progress is not being made by the student.” Id.

at 662. Lee’s advisor was Dr. Haiyan Wang, the “only faculty member in the [s]tatistics

[d]epartment whose expertise involved Lee’s chosen topic, which involved an area of

[s]tatistics research that was at the that time on the cutting edge, specialized, complex and

narrow.” Id. at 665.

       In July 2011, Lee asked Dr. Neill, the department head, to remove Dr. Wang as

her advisor, claiming that she was “irresponsible for her advisory duty.” Id., Vol. II at

109. Dr. Neill met with Lee and gave her four options on how to proceed: (1) keep

working with Dr. Wang; (2) pursue a new research topic under a different advisor; (3) file

a grievance; or (4) “[t]erminate from the [s]tatistics graduate program.” Id., Vol. I at 689.

On October 2, Lee acknowledged in an email that she “need[ed] a supporting major

advisor so that [she] [could] move [her] academic progress forward,” and that she “would

                                              2
never be ready for a preliminary [Ph.D.] exam” without an advisor. Id. at 690. And she

quoted a portion of the statistics department handbook that provided: “students who fail

to make satisfactory progress [toward degree completion] . . . will not only lose

departmental support but will be recommended for dismissal from the Graduate School.”

Id. Nevertheless, Lee decided to seek Dr. Wang’s removal and she submitted a grievance

letter to Dr. Guikema, the graduate school’s associate dean, complaining that “Dr. Wang

ha[d] lost her credibility to act as [her] major advisor.” Id., Vol. II at 118.

       Lee initially accepted a compromise situation in which Dr. Neill agreed “to serve

as a mediator between Lee and Dr. Wang so” Lee could keep working on her chosen

dissertation topic. Id., Vol. I at 724. But despite Dr. Neill’s intervention, Lee remained

dissatisfied with Dr. Wang and she filed another grievance. On April 4, 2012, Lee’s

grievance was approved and Dr. Wang was removed as her advisor.

       On April 9, Dr. Neill notified Lee that she was “free to find another professor

within the department” to continue her dissertation work, but she had to keep him

informed so he could “track [her] academic progress.” Id. at 697. Lee contacted all

twelve of the remaining statistics faculty members, but none agreed to advise her on the

dissertation topic she had with Dr. Wang, and Lee refused to change her research topic.

       On April 19, Dr. Neill told Lee that if she wanted to be considered for a graduate

teaching-assistant position, he needed to know by April 27 whether she had found a new

advisor. Dr. Neill explained that “[a]cademic progress is necessary in order to be

considered for such support by the department.” Id. Lee failed to meet the deadline and

she lost her teaching-assistant position.

                                               3
       On April 30, Lee complained to Dr. Guikema that Dr. Neill had cancelled her

teaching-assistant position and was “forcing” her to select a new Ph.D. research topic. Id.

at 71. She acknowledged that she was facing “termination from the program.” Id. In

response, Dr. Guikema advised Lee to stay focused on her goal of obtaining a Ph.D. He

noted that while her options for success in the statistics department were “almost down to

zero,” he suggested that she “explore discussions with related graduate programs.” Id. at

72.

       On May 2, KSU’s director of student life received a report that Lee had been

“yelling and disruptive in the Graduate School office.” Id., Vol. II at 512. Dr. Neill

informed the statistics faculty of the report and surmised that Lee would be “terminat[ed]

from at least this program.” Id. at 237. KSU’s critical incident response team (CIRT)

met and determined, however, that Lee did not appear to be dangerous and only “needed

to be warned about her disruptive conduct.” Id. at 512.

       On May 7, Dr. Guikema met with Lee and told her that the statistics department

would likely be recommending her dismissal from the KSU graduate program because

she had not found a replacement advisor. But Dr. Guikema offered not to process that

recommendation for six weeks, so she could pursue graduate opportunities in other

departments, such as mathematics and computer science. On May 9, Dr. Neill and the

graduate-student progress committee submitted the termination recommendation, “based

on [Lee’s] failure to find a replacement major professor to supervise her PhD research.”

Id., Vol. I at 80. Dr. Guikema forwarded it to Lee and reminded her to “keep [her] eye on

the prize” by finding a graduate program in which she could succeed. Id. at 711.

                                             4
       As of May 30, Lee had not sought admission to any other department at KSU, and

she notified the graduate school that she had decided not to transfer. The next day,

Dr. Guikema processed the recommendation from the statistics department and dismissed

Lee from the graduate program.

       After unsuccessfully seeking reinstatement, Lee sued KSU, Dr. Wang, and various

school administrators. The district court dismissed all of Lee’s claims except her

procedural due-process claim against Drs. Guikema and Neill. As for that claim, the

district court found that qualified immunity applied, and it granted them summary

judgment.

                                        DISCUSSION

                                 I. Standards of Review

       We review the district court’s grant of summary judgment de novo, viewing the

evidence in the light most favorable to Lee. Schneider v. City of Grand Junction Police

Dep’t, 717 F.3d 760, 766 (10th Cir. 2013). “The court shall grant summary judgment 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). To defeat summary

judgment based on qualified immunity, a plaintiff must “show (1) a reasonable jury could

find facts supporting a violation of a constitutional right, which (2) was clearly

established at the time of the defendant’s conduct.” Estate of Booker v. Gomez, 745 F.3d

405, 411 (10th Cir. 2014). We liberally construe Lee’s pro se filings, but we do not act as

her “attorney in constructing arguments and searching the record.” Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

                                              5
                                II. Procedural Due Process

       “In order to prevail on her procedural due process claim, [Lee] must show that she

possessed a protected property interest in” her graduate position at KSU. Meiners v.

Univ. of Kan., 359 F.3d 1222, 1233 (10th Cir. 2004). Courts ordinarily “look to existing

rules or understandings that stem from an independent source such as state law to define

the dimensions of protected property interests.” Setliff v. Mem. Hosp. of Sheridan Cty.,

850 F.2d 1384, 1395 (10th Cir. 1988) (internal quotation marks omitted). Lee does not

address the contours of her purported property interest, and Drs. Guikema and Neill

assume for the sake of argument that she has such an interest. “[A]n individual’s place in

a post-secondary . . . program” can qualify as a protected interest. Harris v. Blake, 798

F.2d 419, 422 (10th Cir. 1986). But we need not resolve whether Kansas law specifically

establishes a property interest in continued enrollment as a doctoral student, given that

Lee has “failed to identify any clearly established law requiring more process than she

received before [KSU] dismissed her.” Trotter v. Regents of Univ. of N.M., 219 F.3d

1179, 1184 (10th Cir. 2000); see also Salehpoor v. Shahinpoor, 358 F.3d 782, 786 (10th

Cir. 2004) (assuming, without deciding, that student had a right to continued enrollment

in a doctoral program).

       The adequacy of process is “a matter of federal constitutional law.” Hulen v.

Yates, 322 F.3d 1229, 1247 (10th Cir. 2003). “When a school makes an ostensibly

academic judgment about a student, the procedural requirements of the Due Process

Clause are satisfied if the student is given prior notice of the deficiencies in [her]

academic performance and if the challenged decision is careful and deliberate.” Gossett

                                               6
v. Okla. ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1181 (10th Cir. 2001)

(internal quotation marks omitted).

       Lee contends she is entitled to a more stringent standard because her dismissal was

disciplinary, rather than academic. See Harris, 798 F.2d at 423 (“The Supreme Court has

emphasized that less stringent procedural requirements attach when a school makes an

academic judgment about a student than when it takes disciplinary action.”). To support

this characterization, she points to (1) Dr. Neill’s impression that as a result of the May 2

incident report, Lee would be dismissed; and (2) her academic achievements at KSU,

including a 3.95 grade-point average and several academic scholarships. But neither

matter shows that Lee’s dismissal was disciplinary. Dr. Neill’s impression turned out to

be incorrect, as the CIRT team concluded she was not dangerous and needed only a

warning. And despite Lee’s academic achievements, she knew that academic progress

toward a Ph.D. was not possible without an advisor, and she failed to obtain an advisor.

Every communication in the record references that failure as the reason for Lee’s

dismissal. No reasonable jury could find that Lee’s dismissal was for a disciplinary

purpose.

       Accordingly, we must consider whether Lee’s dismissal was preceded by notice

and “a careful and deliberate evaluation of h[er] academic ability.” Gossett, 245 F.3d at

1181. Lee argues she had no notice that the lack of an advisor would result in her

dismissal from the statistics program. But she knew at least as early as September 2011

that an advisor was critical to her academic progress and that one of the alternatives to

finding a replacement for Dr. Wang was “[t]erminat[ion] from the [s]tatistics graduate

                                              7
program.” R., Vol. I at 663-64. Further, in an October 2011 email, Lee reproduced a

portion of the statistics department handbook that prescribed dismissal for students who

failed to satisfactorily progress towards degree completion. After Dr. Wang was

removed on April 4, 2012, Dr. Neill twice told Lee (on April 9 and 19) that if she wished

to pursue the option of finding a new advisor, she would have to keep him informed so he

could track her academic progress. And when Lee complained to Dr. Guikema on April

30 about losing her teaching-assistant position and having to consider a new research

topic, she admitted she was facing “termination from the program.” Id. at 71. Moreover,

Dr. Guikema advised Lee on May 1 that her options for a statistics Ph.D. were “almost

down to zero,” id. at 72, and on May 7 he told her to expect a dismissal recommendation,

id. at 78. Given these circumstances, Lee cannot complain she lacked notice when the

statistics department finally recommended her dismissal on May 9 or when that

recommendation was processed on May 31.

       Lee further contends that a jury could find her dismissal was arbitrary, rather than

careful and deliberate, because (1) she had limited time to find an advisor; (2) other

graduate students were not subject to the same constraints; and (3) she was not given a

hearing. We disagree.

       In regard to the timing of Lee’s dismissal, Dr. Neill notified her that Dr. Wang had

been removed and that she was free to find another statistics advisor on April 9, 2012—a

full month before he joined with the progress committee in recommending her dismissal.

Dr. Guikema encouraged Lee to explore options in other departments and delayed

processing the dismissal recommendation until May 31. Lee does not explain how either

                                             8
of these timeframes was insufficient to obtain an advisor. She concedes that she was able

to contact “all twelve of the other [statistics] faculty members,” Aplt. Opening Br. at 6,

and that she had decided not to pursue a new research topic with one of those faculty

members or to seek admission to a different program, R., Vol. I at 717, 720.1

       Lee’s claim of disparate treatment also fails. The evidence she cites is not

probative, as it does not indicate whether other students were similarly situated to her.

See, e.g., id., Vol. II at 313 (email from another KSU student stating only that she had not

begun looking for an advisor). Moreover, statements from other students addressing

whether they have been looking for an advisor and for how long are inadmissible

hearsay. See Wright–Simmons v. City of Okla., 155 F.3d 1264, 1268 (10th Cir. 1998) (“It

is well settled in this circuit that we can consider only admissible evidence in reviewing

an order granting summary judgment.” (internal quotation marks omitted)).

       Finally, in the context of dismissals for academic reasons, a hearing is not required

to satisfy due process. See Trotter, 219 F.3d at 1185.

       No reasonable jury could find that the decision to dismiss Lee was anything but

careful, deliberate, and preceded by sufficient notice. Accordingly, Drs. Guikema and

Neill were entitled to qualified immunity from suit and summary judgment on Lee’s due-

process claim.




       1
        Lee also claims that Dr. Neill limited the pool of potential new statistics
advisors to tenured faculty members. The record indicates, however, that he merely
suggested “an experienced advisor [to] expedite Lee’s dissertation research on a new
research topic.” R., Vol. I at 666.
                                             9
                               CONCLUSION

The judgment of the district court is affirmed.
                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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