                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               AUG 21 2000
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 GRACIELA ORNELAS,

              Plaintiff-Appellant,

 v.                                                          No. 99-2123

 REGENTS OF THE UNIVERSITY OF                  (D.C. No. CIV-98-0418 JC/JHG-ACE)
 NEW MEXICO; DEBORAH                                        (D. N.M.)
 RIFENBARY, Ed.D.; WILLIAM
 FISHBURN, Ed.D.,

              Defendants-Appellees


                             ORDER AND JUDGMENT*


Before HENRY and PORFILIO, Circuit Judges, and WEINSHIENK,** District Judge.



      Graciela Ornelas appeals the district court’s grant of judgment as a matter of law

against her and in favor of the defendants the Regents of the University of New Mexico,

Dr. Deborah Rifenbary, and Dr. William Fishburn. In trial proceedings before the district

court, Ms. Ornelas challenged her removal from an internship class for the spring

      *
          This order and judgment is not binding precedent, except under the doctrines of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 Honorable Zita L. Weinshienk, Senior District Judge for the United States
District Court for the District of Colorado, sitting by designation.
semester of 1997. Pursuant to 42 U.S.C. § 1983, she alleged that the removal constituted

retaliation for activity protected by the First Amendment: writing a letter in support of a

professor’s application for tenure and participating in a panel discussion concerning

discrimination encountered by minority students. Ms. Ornelas also alleged that the

removal violated her procedural due process rights under the Fourteenth Amendment.

For the reasons set forth below, we affirm the district court’s decision.



                                   I. BACKGROUND

       Ms. Ornelas began graduate school in the Counseling Program in the University of

New Mexico’s Department of Education in the fall of 1994. During the spring 1996

semester, Ms. Ornelas (who was president of the Counseling Graduate Student

Association) and a fellow student wrote a letter to the University Provost protesting the

denial of tenure to a professor in the Counseling Program, Dr. Susan Cameron. The letter

praised Dr. Cameron’s commitment to teaching and to supporting “underrepresented

students of color.” Rec. Ex. Addendum, at 3. “Unlike other professors,” the letter

continued, “[Dr. Cameron] incorporates multiculturalism and ethics into her classrooms.”

Id. at 4. During the same semester, Ms. Ornelas participated in a panel discussion about

racism on campus. In the course of the discussion, she stated that “[m]ost minority

students don’t feel comfortable at school.” Id. at 5. She added that she had to “second-

guess [her]self about [her] aptitudes, about [her] qualities and about [her] accent.” Id.


                                            -2-
       Ms. Ornelas took several courses with the defendant Dr. Rifenbary. In the fall

1996 semester, she enrolled in her field practicum class, which required students to serve

in supervised counseling positions in the community and to participate in weekly

classroom sessions on campus.

       Early in the semester, Ms. Ornelas met with another professor, Dr. David Scherer,

to complain about Dr. Rifenbary. She told him that Dr. Rifenbary had graded her unfairly

on a paper in a prior class and had made an inappropriate remark regarding Hispanics.

Ms. Ornelas also repeated a rumor that she had heard that Dr. Rifenbary had engaged in

an improper sexual relationship with a student. Dr. Scherer informed Dr. Rifenbary about

some of Ms. Ornelas’s concerns.

       According to Dr. Rifenbary, she did not learn that Ms. Ornelas had repeated the

rumor about an inappropriate sexual relationship until late in the fall semester. However,

before learning about Ms. Ornelas’s repeating the rumor, Dr. Rifenbary became

concerned about Ms. Ornelas’s participation in the internship class. Dr. Rifenbary

testified that Ms. Ornelas would turn her back whenever she would speak and would

make comments to the other students. Dr. Rifenbary began to “[feel] that there was an

atmosphere . . . not completely conducive to a positive learning environment” and that,

because of the conflicts with Ms. Ornelas, she could not effectively supervise her. See

Rec. vol. II, at 71.

       Dr. Rifenbary was also concerned about Ms. Ornelas’s handling of a case


                                           -3-
presentation. She testified that Ms. Ornelas notified her only a few minutes before the

scheduled class that she would not be able to give the presentation. Because nearly all of

the class had been set aside for Ms. Ornelas’s presentation, Dr. Rifenbary was left with

very little time to prepare alternative material. According to Dr. Rifenbary, the reason

given by Ms. Ornelas—an eleventh hour change in the diagnosis given to the patient by

the supervising counselor—was insufficient to justify Ms. Ornelas’s failure to give her

presentation.

       Ms. Ornelas completed the requirements for the internship class for the fall 1996

semester, and Dr. Rifenbary gave her credit for the class.1 However, Dr. Rifenbary

reported her concerns about Ms. Ornelas to the rest of the faculty. After discussing the

matter at a January 21, 1997 meeting, the faculty voted to remove Ms. Ornelas from Dr.

Rifenbary’s internship class for the spring 1997 semester. In a letter to Ms. Ornelas

explaining the basis of the faculty’s decision, the defendant Dr. Fishburn (the coordinator

of the Counseling Program) stated that her “behavior and verbalizations [were]

frequently, contentious, antagonistic and generally disruptive to the academic enterprise”

and that “there is a serious concern over [her] apparent difficulty in responding to

academic and clinical supervision.” Ex. Addendum at 9.

       On February 4, 1997, Dr. Fishburn telephoned Ms. Ornelas and told her that she

would be allowed to appear in person at a faculty meeting on the following day to


       1
           The internship class was graded on a credit/no credit basis.

                                             -4-
challenge the decision to remove her from the internship course. Ms. Ornelas appeared at

the faculty meeting and argued against the decision. The faculty denied her appeal but

appointed a special committee to address the issue of how she could complete the

internship requirements. However, after receiving a letter from a lawyer representing Ms.

Ornelas, the faculty decided to dissolve the special committee That decision was based

on the lawyer’s request that “any future communication regarding my client be done

directly through my office and no contact other than regular school work and school

directives be made with my client.” Aple. Supp. App. at 14. Eventually, the faculty

allowed Ms. Ornelas to complete the internship class and awarded her a masters degree in

counseling.

       Ms. Ornelas filed the instant case in New Mexico state court in March 1998,

naming the Regents of the University of New Mexico, Dr. Rifenbary, and Dr. Fishburn as

defendants. The defendants removed the case to the federal district court. After hearing

Ms. Ornelas’s evidence at trial, the court granted judgment as a matter of law on both her

First Amendment retaliation claim and her procedural due process claim under the

Fourteenth Amendment. The court reasoned that Ms. Ornelas had failed to establish a

causal connection between the protected activity (her letter protesting the denial of tenure

to Dr. Cameron and her participation in the panel discussion on minority students) and the

decision to remove her from the internship class. The court added that affording Ms.

Ornelas the opportunity to appeal the initial decision at the February 5, 1997 faculty


                                            -5-
meeting and appointing a special committee to assist her in completing the internship

class in the future satisfied the requirements of the Due Process Clause.




                                    II. DISCUSSION

       We engage in de novo review of the grant of judgment as a matter of law, applying

the same standards as the district court pursuant to Fed. R. Civ. P. 50. Judgment as a

matter of law is warranted only if “the evidence and all inferences to be drawn therefrom

are so clear that reasonable minds could not differ on the conclusion.” Greene v. Safeway

Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996) (quotation omitted). We construe the

record in the light most favorable to the nonmoving party. Id.



                               A. First Amendment Claim

       The Supreme Court has held that a state university cannot expel a student in

retaliation for engaging in activity protected by the First Amendment. See Papish v.

Board of Curators of the Univ. of Mo., 410 U.S. 667, 669-71 (1973). In order to establish

a retaliation claim cognizable under the First Amendment, the plaintiff student must

prove that her speech was constitutionally protected and that it was a “substantial” or

“motivating” factor in the challenged decision. See Mt. Healthy City School Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977); Kelleher v. Flawn,761 F.2d 1079, 1083 (5th


                                            -6-
Cir. 1985). If the plaintiff meets that burden, then the defendant may defeat the claim if

he or she proves by a preponderance of the evidence that the same decision would have

been made even in the absence of the protected speech. See Mt. Healthy City Sch. Dist.,

429 U.S. at 287.

       When the alleged retaliatory decision involves an academic issue, we afford

substantial deference to the explanations given by the faculty. As the Supreme Court has

observed:

              [W]hen judges are asked to review the substance of a genuinely
              academic decision . . . they should show great respect for the
              faculty’s professional judgment. . . . [T]hey may not override it
              unless it is such a substantial departure from accepted academic
              norms as to demonstrate that the person or committee
              responsible did not actually exercise professional judgment.
                      Considerations of profound importance counsel
              restrained judicial review of the substance of academic
              decisions.

Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (citations omitted).

       Here, Ms. Ornelas contends that there was sufficient evidence from which a

reasonable jury could conclude that the Counseling Department’s decision to remove her

from the internship class constituted retaliation for activity protected by the First

Amendment (her letter protesting the denial of tenure to Dr. Cameron and her

participation in the panel discussion on diversity issues). She invokes a variety of

evidence from the trial proceedings.

       First, she notes that Dr. Cameron and Dr. Fishburn both expressed disagreement


                                             -7-
with her assessment of the lack of commitment to diversity in the Counseling Department.

She also cites testimony regarding Dr. Rifenbary’s comments about her competence.

See, e.g., Rec. vol. II at 236. (testimony of a fellow student that Dr. Rifenbary stated

after the removal from the internship class that Ms. Ornelas would “never graduate”).

       Additionally, Ms. Ornelas questions Dr. Rifenbary’s judgment that Ms. Ornelas’s

behavior warranted her removal from the internship class. She observes that, in spite of

the problems noted by Dr. Rifenbary, Ms. Ornelas received credit for the fall semester

class. According to Ms. Ornelas, the reasons for the decision were “trivial, irrelevant or .

. . vague.” Aplt’s Br. at 10. She further alleges that, in arguing for Ms. Ornelas’s

removal, Dr. Rifenbary concealed certain key information from the faculty: a favorable

evaluation that Ms. Ornelas received from the psychologist who had provided on-site

supervision of her internship.

       Moreover, Ms. Ornelas points to certain conduct of Dr. Rifenbary after the

January 1997 decision. She notes that Dr. Rifenbary contacted potential employers to

express her negative assessment of Ms. Ornelas’s qualifications. According to Ms.

Ornelas, that conduct reveals Dr. Rifenbary’s retaliatory animus against her. Finally, she

cites testimony from other professors that her involvement in the dispute over the denial

of tenure to Dr. Cameron and her participation in the diversity panel was “connected” to

the earlier disputes about Dr. Cameron’s tenure and about diversity on campus. See Rec.

vol III at 322.


                                            -8-
       After careful review of the record, we agree with the district court that the

evidence introduced by Ms. Ornelas was insufficient to warrant submission of her First

Amendment retaliation claim to a jury. Most tellingly, Ms. Ornelas’s retaliation theory is

unable to account for the significant delay—from March 1996 until January

1997—between the protected activity and the allegedly retaliatory action. After Ms.

Ornelas wrote the letter in support of Professor Cameron and participated in the diversity

panel, she was allowed to enroll in Professor Rifenbary’s fall 1996 internship class and in

fact received credit for that class. The defendants presented a convincing explanation for

the decision to require her to withdraw from the spring 1997 class: the conflicts with

Professor Rifenbary that she reported in her meeting with Professor Scherer at the

beginning of the fall 1996 semester and the quality of her actual class performance as the

fall semester unfolded. The evidence presented at trial demonstrated that it was Professor

Rifenbary’s assessment of difficulties in the internship class created by the conflict with

Ms. Ornelas, as well as her performance during the fall semester, that led to the

challenged decision.

       As the district court observed, the evidence introduced by Ms. Ornelas certainly

demonstrates that she and Dr. Rifenbary “don’t get along, and [that] [Ms. Ornelas] was

going to have a tough time in that class.” Rec. vol. III at 432. However, the evidence

does not undermine the academic judgment made by the faculty. The testimony about

Professor Rifenbary and Professor Fishburn’s disagreement with her assessment of the


                                            -9-
Counseling Program’s commitment to diversity and their comments about her

competence do not indicate that the particular decision here at issue was retaliatory.

Moreover, the fact that Ms. Ornelas’s on-site supervisor gave her a favorable evaluation

does not undermine the conclusion that the classroom component of the internship class

was adversely affected by Ms. Ornelas’s conduct. Finally, the evidence of Dr.

Rifenbary’s subsequent contacts with Ms. Ornelas’s employers, although demonstrating

her negative assessment of Ms. Ornelas’s qualifications, does not undercut the

reasonableness of the faculty’s prior academic judgment.

       Accordingly, we conclude that the district court properly granted judgment as a

matter of law to the defendants on Ms. Ornelas’s First Amendment claim.



                                    B. Due Process Claim

       Ms. Ornelas also argues that the district court erred in granting judgment as a

matter of law to the defendants on her procedural due process claim. She maintains that

the Due Process Clause of the Fourteenth Amendment entitled her to notice of the

contemplated decision to remove her from the internship class and an opportunity to

respond to the faculty’s concerns. She maintains that she was entitled to such notice

before the faculty’s initial decision.

       In Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 82-91 (1978),

the Supreme Court rejected a medical student’s due process challenge to her dismissal.


                                           - 10 -
The Court held that the procedures employed by the medical school faculty and

administration comported with the Due Process Clause. The student had been informed

of her deficiencies and afforded opportunities to improve. The school provided notice of

the contemplated dismissal, as well as a careful and deliberate determination of the

relevant issues. The Court observed that less stringent procedural requirements apply

when a school makes an academic judgment about a student than when it takes

disciplinary action.

       In Harris v. Blake, 798 F.2d 419, 423-25 (10th Cir. 1986), this circuit applied

Horowitz to a graduate student’s due process challenge to the placement of a critical letter

in his academic file and to the giving of low grades that eventually resulted in the school

requiring him to withdraw from the program. After first concluding that the student had a

constitutionally protected property interest in continued enrollment in the state college

system, we held that the school’s established appeal procedures provided him with due

process. See id. at 423-24 (noting that the student “employed [the appeals] procedure and

participated personally in the hearing to challenge his grades” and that the student

“received several opportunities to present his position to responsible school officials”).

       Ms. Ornelas’s due process challenge is foreclosed by Harris. Significantly, in

contrast to the student in Harris, the decision that Ms. Ornelas challenges resulted in her

removal from one class rather than an entire program. In light of the lesser individual

interest involved, Ms. Ornelas was arguably entitled to less elaborate procedures than


                                            - 11 -
those described in Harris. See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)

(holding that the requirements of due process depend in part on the individual interest

affected by official action). Nevertheless, Ms. Ornelas received the kind of process that

we approved in Harris: the opportunity to personally participate in an appeal of the

challenged decision to responsible university officials. Like the district court, we see no

indication in the record that the decision was a disciplinary rather than an academic one.

Thus, the Due Process Clause did not entitle Ms. Ornelas to notice of the proposed

decision prior to the January 21, 1997 faculty meeting. Her opportunity to appeal the

faculty’s initial decision comported with due process requirements. Thus, the district

court properly granted the defendants’ motion for judgment as a matter of law on Ms.

Ornelas’s procedural due process claim.2

       2
          Although we share the concerns about academic freedom set forth in Judge
Porfilio’s concurrence, our reading of the cases suggests that Ms. Ornelas has sufficiently
alleged state action. Her complaint identifies the individual defendants as a professor
and program chair at the University of New Mexico. The University of New Mexico is a
state educational institution. N. M. Const. Art. XII, § 11 (stating that the University of
New Mexico is a state educational institution); N. M. Stat. Ann. §§ 21-7-1 (establishing
the University of New Mexico as a state university); N. M. Stat. Ann. § 21-7-10 (stating
that “[t]he university shall be open to the children of all residents of this state and such
others as the board of regents may determine, under such rules and regulations as may be
prescribed by said board”).
        In West v. Atkins, 487 U.S. 42, 49-50 (1988), the Supreme Court explained that
“state employment is generally sufficient to render the defendant a state actor,” that “[i]t
is firmly established that a defendant in a §1983 suit acts under color of state law when
he abuses the position given to him by the State,” and that, “generally, a public employee
acts under color of state law while acting in his official capacity or while exercising his
responsibilities pursuant to state law.” (Internal citations and quotations omitted). Here,
we read Ms. Ornelas’s complaint as alleging that the defendants were performing their
                                                                                (continued...)

                                           - 12 -
                                  III. CONCLUSION

      For the reasons set forth above, we affirm the district court’s decision granting

judgment as a matter of law to the defendants the Regents of the University of New

Mexico, Professor Rifenbary, and Professor Fishburn.




                                         Entered for the Court,



                                         Robert H. Henry
                                         United States Circuit Judge



No. 99-2123, Ornelas v. Regents of the University of New Mexico
Special Concurrence - Porfilio, Senior Circuit Judge



      At the risk of appearing to be a pettifogger, I cannot accept the court’s



      2
       (...continued)
official responsibilities as a professor and administrator at a state university when they
took the challenged action. Cf. National Collegiate Athletic Ass’n v. Tarkanian, 488
U.S. 179, 192 (1988) (“A state university without question is a state actor.”).
        The fact that we consider the defendants to be state actors does not undermine our
deference to their academic decisions. We merely conclude the defendants are entitled to
judgment as a matter of law because they complied with the requirements of the First
Amendment and the Due Process Clause—not because of a lack of state action.

                                          - 13 -
conclusion the defendants in this case were state actors. To me, this conclusion

trivializes the underlying purpose of § 1983 of allowing redress for invidious

discrimination. 1 Equally important, what we have done today seriously imperils

academic freedom, the essence of education.

      As I understand the court’s view, its conclusion is predicated upon the

simple fact the defendants were employees of the State of New Mexico. In most

instances, I would have no quarrel with that view; however, when that conclusion

is applied to the facts of this case, it becomes shibbolethic.

      The action upon which this suit was predicated, according to the plaintiff,

was her “apparent dissent from [defendant] Rifenbary’s views on the relationship

of counseling to multi-culturalism.” She also averred defendant had made

“threats, demeaning remarks . . . and concerted efforts to alienate plaintiff from

other students and faculty.” It is nonetheless clear, however, that these acts

center upon Professor Rifenbary’s determination plaintiff’s in-class conduct

affected the academic atmosphere of the classroom. Thus, I believe we have a

genuine question of whether this action involves Professor Rifenbary as a

representative of the State of New Mexico or as an academician exercising her

inherent pedagogical judgment of what constitutes the best interests of her class.


      1
       “The purpose of § 1983 is to deter state actors from using the badge of
their authority to deprive individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158,
161 (1992).
      I recognize immediately I draw a fine line here. Yet, I believe it is a line

that must be effected. This is not a case, such as those relied upon by the court,

of a professor using his status over a student to gain sexual favors. Those are

clearly harassment cases in whch the exercise of pedagogical judgment takes

absolutely no part. In those cases, the harasser who needed the power his

professorship gave him over his student to commit an illegal act was not only

acting under color of state law but also in violation of the precise purpose of the

civil rights law. But for the position created for each defendant by state law, the

power necessary to commit the violation would not have been present.

      In contrast, I believe every teacher, whether employed in a public or private

capacity, has certain inherent rights and responsibilities which are essential to the

proper performance of the task of educating students. One of those surely is the

right to determine proper class discipline. If a student’s behavior compromises

the learning process and the educational opportunity of other students, the teacher

has the right and responsibility to take appropriate and lawful action to eliminate

that compromise. However, if every such academic action taken by a teacher on

the public payroll is to be made subject to the scrutiny of federal courts, it will be

judges and not teachers who decide what is proper classroom atmosphere. I

cannot accept that notion.

      The public employs its teachers to educate students, reflecting, I believe, a


                                          -2-
public acceptance of the idea teachers, by training and experience, have

knowledge of academia that sets them apart from the rest of society. Although

judges also are possessed of special knowledge and experience, few have the

basic tools to second-guess teachers on the exercise of their academic judgment.

      For these reasons, I would conclude in this case plaintiff has failed to

establish defendants were state actors in the sense required by §1983. I believe

her complaint has failed to establish defendants’ specific power of which she

complains was “possessed by virtue of state law and made possible only because

the wrongdoer is clothed with the authority of state law.” United States v.

Classic, 313 U.S. 299, 326 (1941). I believe it was not state law, but the inherent

pedagogical authority of a teacher which made it possible for Professor Rifenbary

to take the action which was the genesis of this case. I would affirm the judgment

of the district court, then, but on the basis it had no jurisdiction.




                                          -3-
