                                                                       [PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT           FILED
                              ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                      No. 10-11546            DECEMBER 21, 2010
                                ________________________          JOHN LEY
                                                                   CLERK
                           D.C. Docket No. 2:07-cv-00104-WCO
SARA CASTLE,

lllllllllllllllllllllPlaintiff - Appellant,

versus

APPALACHIAN TECHNICAL COLLEGE, JASPER GEORGIA,
In their individual and official capacities,
et al.,

llllllllllllllllllllllDefendants,

JOAN THOMPSON, Vice President, in their individual and official capacities,
DR. TRINA BOTELER, Executive Affairs Officer, in their individual
and official capacities,

lllllllllllllllllllllDefendants - Appellees.

                               ________________________

                       Appeal from the United States District Court
                          for the Northern District of Georgia
                             ________________________


                                     (December 21, 2010)
Before BARKETT, MARTIN and HILL, Circuit Judges.

BARKETT, Circuit Judge:

      Sara Castle, a former nursing student, brought this 42 U.S.C. § 1983 action

alleging that her suspension from the Licensed Practical Nursing Program (“the

Nursing Program”) at Appalachian Technical College (“ATC”), violated her free

speech and due process rights. Castle alleged that two ATC administrators, Joan

Thompson, Vice President of Academic Affairs, and Dr. Trina Boteler, interim

Vice President of Student Services, (1) suspended her in retaliation for reporting

one of her instructors for falsifying attendance records, in violation of the First

Amendment; and (2) suspended her without a meaningful opportunity to respond

to the charges against her, in violation of the Due Process Clause of the Fourteenth

Amendment.

      The district court awarded summary judgment in favor of Thompson and

Dr. Boteler on Castle’s First Amendment retaliation claim based on qualified

immunity but permitted the procedural due process claim to be tried before a jury,

which returned a verdict in Castle’s favor in the amount of $50,000 in

compensatory damages and $400,000 in punitive damages. However, the district

court subsequently granted the administrators’ motion for a judgment as a matter

of law, see Fed. R. Civ. P. 50(b), holding that while there was sufficient evidence

                                           2
for the jury to conclude that Castle’s due process rights were violated, the

administrators were shielded by qualified immunity. Castle now appeals both

rulings. After careful review, we affirm, concluding that the appellees were

entitled to qualified immunity.

       Qualified immunity shields government officials sued in their individual

capacity from liability for civil damages if their conduct “does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As administrators

at a state technical college, Thompson and Dr. Boteler were government officials,

and the parties agree that they were acting within the scope of their discretionary

authority. Thus, to determine whether they are protected by qualified immunity,

we consider (1) whether the evidence, taken in the light most favorable to Castle,

shows that the administrators violated a federal right and, if so, (2) whether that

right was clearly established at the time of the violation. Saucier v. Katz, 533 U.S.

194, 201 (2001).1 Therefore, we first decide whether a violation of federal law

occurred as to each claim and, if so, then determine whether the administrators

would reasonably have known that their actions violated the plaintiff’s federal


       1
         In Pearson v. Callahan, the Supreme Court revisited Saucier and held that while that
opinion’s two-step inquiry “is often appropriate, it should no longer be regarded as mandatory.”
– U.S. –, 129 S. Ct. 808, 818 (2009). In this case, we find it appropriate to follow Saucier.

                                                3
rights.2

                         I. First Amendment Retaliation Claim

       To establish a First Amendment retaliation claim, a plaintiff must show that

(1) her speech was constitutionally protected; (2) she suffered adverse conduct that

would likely deter a person of ordinary firmness from engaging in such speech;

and (3) there was a causal relationship between the adverse conduct and the

protected speech. Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). In

order to establish a causal connection, the plaintiff must show that the defendant

was subjectively motivated to take the adverse action because of the protected

speech. Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008). However, once

the plaintiff shows that her protected conduct was a motivating factor, the burden

shifts to the defendant to show that she would have taken the same action in the

absence of the protected conduct, in which case the defendant cannot be held

       2
          We review the summary judgment on the First Amendment retaliation claim de novo,
viewing the evidence in the light most favorable to the non-moving party. Durruthy v. Pastor,
351 F.3d 1080, 1084 (11th Cir. 2003). Summary judgment is appropriate only if the pleadings,
depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
         We also review the judgment as a matter of law on the procedural due process claim de
novo, viewing the evidence in the light most favorable to the non-moving party. Combs v.
Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997). To determine whether a defendant is
entitled to qualified immunity following a jury verdict, we view the evidence in the light most
favorable to the prevailing party, giving “deference to the jury’s discernible resolution of
disputed factual issues.” Oladeinde v. City of Birmingham, 230 F.3d 1275, 1290 (11th Cir.
2000) (quotation marks omitted).

                                                 4
liable. Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

(1977)).

        The evidence before the district court at the summary judgment stage,

viewed in the light most favorable to Castle, reflects the following events. In

March 2007, one of Castle’s instructors complained to school administrators that

she often disrupted class, and Castle was given a disciplinary warning stating that

she must improve her behavior or face the possibility of expulsion. Later, in

approximately May 2007, Castle supported a petition seeking to change the

Nursing Program’s passing grade requirements. Castle does not dispute that she

told one student that he would be “verbally attacked” by his peers if he did not

sign the petition, but the parties dispute to what other extent Castle pressured

students. No students complained about being pressured to sign the petition at this

time.

        On two occasions after Castle received the disciplinary warning, the

administration received reports of her misconduct from her instructors. First, in

June 2007, one of Castle’s instructors informed an administrator that a student had

told her that Castle had threatened him.3 This allegation was not investigated at



        3
         The record is not clear as to whether this was the same student who testified that Castle
had threatened him if he did not sign the petition.

                                                 5
the time. Second, on August 21, 2007, a different instructor reported that Castle

was inappropriately loud and argumentative during a class discussion and that

another student, Suanne Clayton, had reported that Castle had threatened her the

previous semester, warning her to “be careful in the parking lot.” Castle denies

making this threat.

      On August 22, 2007, there was a heated argument between Castle, Clayton,

and other students about a clinical course taught by Betty Sue Loflin. Castle and

another student, Elizabeth Mata, left class to report what they believed were

infractions by both Clayton and Loflin. Castle and Mata informed the Vice

President of Academic Affairs, Thompson, that Loflin consistently released

students early from this full day clinical course—sometimes after as little as one

hour—and falsified their attendance records. They also complained that student

Clayton had an excessive number of absences and received preferential treatment.

Thompson initiated an investigation that confirmed the allegations against Loflin,

and the instructor was fired two days later, on August 24, 2007.

      As part of the investigation into Loflin’s misconduct, Thompson also

interviewed Clayton. Clayton admitted that she had been permitted to leave class

early and had missed classes, but also told Thompson that she felt threatened by

Castle and Mata and filed a formal grievance against them. In the grievance,

                                         6
Clayton alleged that Castle and Mata had both bullied and yelled at her, and that

Castle had spread lies about her, called her names, and disrupted class by arguing

with instructors. Thompson instructed Dr. Boteler to investigate Clayton’s

grievance against Castle and Mata.

      Dr. Boteler immediately interviewed all of the students in the clinical course

except for Castle, Mata, and Clayton. According to her notes, every student who

was present corroborated Clayton’s account of the August 22 argument and

reported witnessing “inappropriate, aggressive, and/or threatening behavior” by

Castle, and one student stated that Castle had once threatened him or her.4 None

of the students reported any inappropriate conduct by Mata. However, one of the

students interviewed testified that she reviewed Dr. Boteler’s notes of each

interview and concluded that none accurately reflected what she had said.

      That same day, August 24, 2007, Dr. Boteler and Thompson met with Castle

and told her that they had decided to dismiss her from the Nursing Program

because she had violated the Student Code of Conduct and the terms of her

disciplinary warning. The defendants also advised Castle of her right to appeal the

decision. On August 27, 2007, Castle filed a written administrative appeal, which

was referred to an independent committee for review. The committee elected to


      4
          Dr. Boteler did not identify the students by name or gender in her interview notes.

                                                 7
forgo a formal hearing and to decide the case based on the written appeal. On

September 6, 2007, the committee upheld the dismissal as a suspension for the

remainder of the year. Castle then filed this lawsuit alleging that Thompson and

Dr. Boteler suspended her in retaliation for reporting the misconduct by Loflin.

      The parties do not dispute that reporting Loflin was protected speech and

that the suspension from the Nursing Program constituted adverse conduct. Thus,

the questions remaining are whether Castle presented sufficient evidence that her

protected speech was a motivating factor in the suspension and, if so, whether the

administrators established that they would have suspended her in the absence of

the protected speech. The district court found that there were disputed issues of

material fact as to the administrators’ subjective motivations and, for the purposes

of this appeal, we accept that there is a factual dispute as to whether Castle’s

protected speech was a motivating factor in the suspension.

      Assuming for the sake of argument that there was a retaliatory motive, this

record, however, establishes that Thompson and Dr. Boteler did in fact also

possess a lawful motive for suspending Castle, and that they reasonably believed

that they would have suspended Castle in the absence of her protected speech

because of her other conduct. This is further supported by the fact that the

administrators took no disciplinary action against Mata, who engaged in the same

                                          8
protected speech as Castle. Even though this issue could raise a jury question on

the merits of Castle’s claim, we cannot say the district court erred in deciding that,

for qualified immunity purposes, school administrators in their position could have

reasonably believed that suspending Castle would not violate her First

Amendment rights under the facts of this case. See Foy v. Holston, 94 F.3d 1528,

1534-35 (11th Cir. 1996). Therefore, we affirm the summary judgment in the

appellees’ favor based on qualified immunity.

                           II. Procedural Due Process Claim

       The Fourteenth Amendment prohibits the states from depriving a person of

life, liberty or property without due process of law. U.S. Const. amend. XIV.

Thompson and Dr. Boteler do not dispute that Castle had a property interest in her

continued enrollment in the Nursing Program, and that she could not be deprived

of that interest without due process. See Dixon v. Ala. State Bd. of Educ., 294

F.2d 150, 156-57 (5th Cir. 1961) (holding that students had a property interest in

their continued enrollment at a “public institution of higher learning”).5 While the

due process rights of students charged with misconduct “are not co-extensive with

the rights of litigants in a civil trial or with those of defendants in a criminal trial,”


       5
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.

                                               9
Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir. 1987), the Fourteenth

Amendment requires that they be provided with “the opportunity to be heard at a

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.

319, 333 (1976) (quotation marks omitted).

      Thus, we have held that “due process requires notice and some opportunity

for hearing before a student at a tax-supported college is expelled for misconduct.”

Dixon, 294 F.2d at 158 (emphasis added). In the context of suspensions of no

more than ten days, the Supreme Court held that “as a general rule notice and

hearing should precede removal of the student from school.” Goss v. Lopez, 419

U.S. 565, 582 (1975) (emphasis added). However, the Court also recognized an

exception to the pre-suspension hearing requirement where a student’s “presence

poses a continuing danger to persons or property or an ongoing threat of

disrupting the academic process,” in which case the student may be immediately

removed from school and a “hearing should follow as soon as practicable . . . .”

Id. at 582-83.

      In this case, Thompson and Dr. Boteler did not provide Castle with any

opportunity to be heard before the decision was made to suspend her. The

administrators argue that Castle was not entitled to a pre-deprivation hearing

because she had previously received a disciplinary warning. We find this

                                         10
argument meritless. It cannot be that once disciplined, a student loses any right to

respond to new accusations against her. A previous disciplinary warning cannot

preclude a student from presenting evidence that she was not guilty of subsequent

misconduct or mitigating evidence showing that a less stringent punishment would

be appropriate. Just as a person charged with a crime retains the same due process

rights even if she was previously convicted of a similar offense, a student accused

of misconduct retains her due process rights even if she had been previously

disciplined.

      The administrators also argue that Castle was not entitled to a pre-

deprivation hearing because she posed a continuing danger to other students and

an ongoing threat of disruption to the educational process. They direct our

attention to Hill v. Bd. of Trs. of Mich. State Univ., 182 F. Supp. 2d 621 (W.D.

Mich. 2001) and Picozzi v. Sandalow, 623 F. Supp. 1571 (E.D. Mich. 1986). In

Hill, the court held that administrators were not required to provide a pre-

suspension hearing to a student after he was arrested for inciting a riot of several

thousand students next to the university campus. 182 F. Supp. 2d at 630. In

Picozzi, the court held that no pre-suspension hearing was required for a student

suspected of setting fire to his dormitory room. 623 F. Supp. at 1578. We find

these cases inapposite. Castle was never accused of involvement in any physical

                                          11
altercation or of creating a public safety hazard, and many of the complaints

against her—including the most serious accusation, that she had threatened other

students6 —were based on incidents that allegedly occurred months before the

suspension. The allegations against Castle do not rise to the level of seriousness

necessary to show that she posed a threat sufficient to deny her a pre-suspension

hearing. For the foregoing reasons, we reiterate that depriving a public school

student of a pre-suspension hearing constitutes a violation of due process.

       However, notwithstanding the constitutional violation, we cannot say that

the district court erred in deciding that, for qualified immunity purposes, it was not

clearly established at the time Castle was suspended that the immediate

availability of an appeals process would not have adequately protected Castle’s

due process rights under the facts of this case. We have already noted the

complicated factual issues surrounding the investigation of Castle’s conduct.

Moreover, the administrators made known to Castle that she could immediately

appeal their determination, which Castle did within a few days. Based on the facts

of this case, we affirm the judgment as a matter of law in the appellees’ favor

based on qualified immunity.



       6
         Castle asserts that the only threat that she made was that another student would be
verbally attacked by his peers for not signing the petition.

                                                12
AFFIRMED.




            13
