                          In the
                     Court of Appeals
             Second Appellate District of Texas
                      at Fort Worth
                    ___________________________
                         No. 02-19-00321-CV
                    ___________________________

                        JOHN DOE, Appellant

                                    V.

UNIVERSITY OF NORTH TEXAS HEALTH SCIENCE CENTER; DR. MICHAEL
 WILLIAMS, INDIVIDUALLY IN HIS OFFICIAL CAPACITY; AND DR. FRANK
    FILIPETO, INDIVIDUALLY IN HIS OFFICIAL CAPACITY, Appellees



                On Appeal from the 153rd District Court
                        Tarrant County, Texas
                    Trial Court No. 153-303463-18


               Before Sudderth, C.J.; Gabriel and Bassel, JJ.
                Memorandum Opinion by Justice Bassel
                           MEMORANDUM OPINION

                                    I. Introduction

      In a single issue, Appellant John Doe argues that Appellees University of North

Texas Health Science Center, Dr. Michael Williams, and Dr. Frank Filipeto (both sued

in their official capacity) denied Appellant the rights he was due under the Texas

Constitution to reenroll in medical school after he took a leave of absence. Appellees

filed a plea asserting that Appellant’s claims were barred by sovereign immunity. The

trial court granted the plea and dismissed the suit with prejudice.

      Appellant’s due-course-of-law claim faces an obstacle: the process rights of

students dismissed for academic reasons are limited—generally requiring no hearing at

all before dismissal. He tries to sidestep this obstacle by claiming that Appellees

violated the process standards that they set for themselves in an agreement governing

his leave of absence. But to establish a valid constitutional claim, Appellant must do

more than claim that Appellees did not follow their agreement. Nor does Appellant

explain why he failed to receive the necessary level of process when he acknowledges

that he was able to appeal the decision in question and challenges only the sufficiency

of that process with a conclusory statement that it was not “meaningful.” Thus, we

conclude that Appellant failed to plead a valid constitutional claim that overcomes

Appellees’ sovereign-immunity protections, and the trial court properly granted

Appellees’ plea to the jurisdiction. We affirm.



                                            2
                      II. Factual and Procedural Background

      The factual record is sparse. We set forth the entirety of the bare-bones factual

allegations of Appellant’s amended petition; in essence, they allege that he took a leave

of absence from medical school and experienced a deprivation of process when he

was denied the opportunity to reenroll (we highlight the last paragraph of the factual

allegations that apparently are the focus of Appellant’s claimed process violation):

      11. In the Fall of 2014, [Appellant] began attending the Texas College of
      Osteopathic Medicine (“TCOM”)[,] which is a part of UNTHSC and
      not a separate entity. [Appellant’s] first three years at TCOM were
      uneventful as [Appellant] worked successfully to complete his medical
      degree. However, during [Appellant’s] intensive fourth-year rotations,
      [Appellant] began experiencing difficulties with the TCOM
      administration. Specifically, Defendants repeatedly failed to submit the
      necessary documentation to [Appellant’s] fourth-year medical rotation
      sites. It is incumbent upon TCOM’s administration to submit the
      proper paperwork so students can properly participate in medical
      training to each rotation site. Beginning with [Appellant’s] third rotation
      site, Defendants failed to submit the requisite paperwork on his behalf;
      however, [Appellant] managed to successfully complete his third
      rotation.

             12. Following the completion of [Appellant’s] third rotation,
      [Appellant] secured a rotation site for his fourth rotation with no
      assistance from Defendants. However, just as before, Defendants failed
      to submit the necessary paperwork to [Appellant’s] fourth rotation site.
      Unlike the previous occurrence, [Appellant] was unable to overcome
      Defendants’ failure, and the administrator of the fourth rotation site
      rescinded [Appellant’s] position.

              13. Thereafter, [Appellant] was summoned by Defendants’
      Director of Student Services to appear before TCOM’s Student
      Performance Committee (“SPC”). [Appellant] was interrogated by the
      SPC as to why [Appellant had] failed to finalize his position with his
      fourth rotation site. In response, [Appellant] explained that the failure to
      finalize his position with the fourth rotation site was not due to a lack of

                                           3
      effort on his part[] but was due to the failure of Defendants to meet
      their obligation to submit the necessary paperwork. Facing such an
      unexpected inquisition, [Appellant] requested a one-year Leave of
      Absence (“LOA”), which was later granted by Assistant Vice Dean Dr.
      Frank Filipeto on November 9, 2016.

              14. According to the terms of [Appellant’s] LOA, [Appellant] was
      required to re[]enroll at TCOM with Defendants by July 2017 (the “Re[]enrollment
      Deadline”). However, before [Appellant] had an opportunity to re[]enroll,
      [Appellant] was formally dismissed by Defendants. Defendants dismissed
      [Appellant] in violation of the LOA agreement, prior to the expiration of the
      Re[]enrollment Deadline, and without any notice or opportunity to participate by
      [Appellant]. [Appellant] properly appealed the decision; however, [Appellant’s]
      request was immediately denied without any meaningful opportunity for [Appellant]
      to be heard. [Emphasis added.] [Citation omitted.]

      Though not alleged in the petition, Appellant added a detail to his claims in a

subsequent pleading he filed.       There, he asserted that the decision denying his

reenrollment occurred on July 21, 2017.

      In pleading his cause of action for a due-course-of-law violation, Appellant

characterizes his view of the process that he was denied but adds no more factual

detail than in the paragraphs quoted above regarding how the deprivation occurred:

      According to the terms of the LOA, [Appellant] had until July 2017 to
      re[]enroll at TCOM. Before [Appellant] had an opportunity to re[]enroll,
      Defendants dismissed [Appellant] without providing a hearing or giving
      [Appellant] an opportunity to participate in any meaningful way.

      Appellees answered Appellant’s suit and filed a plea to the jurisdiction asserting

that sovereign immunity barred Appellant’s claim. That plea had three themes: (1)

the trial court should defer to Appellees’ decisions on an academic matter in view of

Appellant’s failure to allege that their decision was arbitrary and capricious or made in


                                             4
bad faith; (2) Appellant received all the process that he was due; and (3) Appellant

failed to avail himself of the process that he was accorded.

      The trial court conducted a hearing on Appellees’ plea. That hearing focused

the controversy on the process that Appellant was due because both sides agreed that

he held a protectible interest for which he could not be deprived without being

accorded some process.       The parties also agreed that Appellees had acted for

academic reasons and that Appellant was entitled only to the limited process due in

that context. As a basis to deny the plea, Appellant’s counsel focused the trial court

on the two-sentence paragraph from the petition highlighted above (paragraph 14).

The basis of Appellant’s argument to deny the petition was driven by the petition and

stated that “based on the pleadings and language in the pleadings, our position is that

there is sufficient evidence here to show at least a bad faith claim that we can

investigate.” At the hearing, Appellant did not seek to adduce evidence or ask for an

opportunity to amend his petition.

      The trial court granted the plea to the jurisdiction and dismissed Appellant’s

claim with prejudice. This appeal ensued.

           III. Appellant Failed to Plead a Valid Constitutional Claim

      In his sole issue, Appellant argues that he pleaded a valid constitutional claim

for violations of his fundamental rights.        Appellant contends that he had a

fundamental right to complete his medical degree and that he was entitled to due



                                            5
process before Appellees dismissed him from medical school. We set forth the

standard of review and applicable law and then apply those to the facts before us.

      A.     Standard of Review

      No one disputes that Appellee University of North Texas Health Science

Center and the individual Appellees are state actors protected by sovereign immunity.

Unless that immunity is waived, the trial court is deprived of subject-matter

jurisdiction. Tex. Tech Univ. Health Scis. Ctr. v. Enoh, 545 S.W.3d 607, 616 (Tex.

App.—El Paso Dec. 14, 2016, no pet.). A plea to the jurisdiction is the appropriate

procedural vehicle to raise a jurisdictional challenge based on sovereign immunity. Id.

We review the question of whether the trial court had subject-matter jurisdiction

under a de novo standard of review. Id.

       Here, the trial court heard no evidence; its determination was based solely on

the allegations in Appellant’s amended petition. Three principles govern our review

of a plea directed to the sufficiency of the pleadings:

   • “[W]e determine whether the plaintiff has met his burden by pleading facts that

       affirmatively demonstrate the trial court’s subject[-]matter jurisdiction.” Id.

   • “[W]e construe the pleadings liberally in favor of the plaintiff and look to the

      pleader’s intent, and accept as true the factual allegations in the pleadings.” Id.

   • “If the pleadings are insufficient to establish jurisdiction but do not

       affirmatively demonstrate an incurable defect, then the issue is one of pleading



                                            6
      sufficiency[,] and the plaintiff should be afforded the opportunity to amend.”

      Id. at 616–17. “However, if the pleadings affirmatively negate the existence of

      the trial court’s jurisdiction, then a plea to the jurisdiction may be granted

      without allowing the plaintiffs an opportunity to amend.” Id. at 617.

      Also, a plaintiff does not meet the burden to plead facts affirmatively

demonstrating jurisdiction with conclusory allegations; as we have held, if conclusory

allegations were sufficient, “the jurisdictional inquiry would become meaningless.”

City of Forest Hill v. Cheesbro, No. 02-18-00289-CV, 2019 WL 984170, at *2 (Tex.

App.—Fort Worth Feb. 28, 2019, no pet.) (mem. op.).

      B.     Applicable Law

             1.     To establish a waiver of sovereign immunity based on a
                    constitutional claim, a petition must allege a facially valid
                    constitutional claim.

      “[S]overeign immunity does not bar a suit to vindicate constitutional rights[.]”

Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015) (citing City of El

Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)). That said, not every suit alleging a

constitutional violation causes a waiver of sovereign immunity; no waiver occurs if the

constitutional claims are facially invalid. See id.; see also Andrade v. NAACP of Austin,

345 S.W.3d 1, 11 (Tex. 2011); Lamar Univ. v. Jenkins, No. 09-17-00213-CV, 2018 WL

358960, at *5 (Tex. App.—Beaumont Jan. 11, 2018, no pet.) (mem. op.) (holding that

a facially invalid procedural due-process claim did not waive sovereign immunity).



                                           7
             2.      We analyze a claim under the Texas Constitution’s due-
                     course-of-law provision in harmony with interpretations of
                     the Due Process Clause of the United States Constitution
                     and utilize a two-part test to determine whether a due-course
                     claim exists.

      We set the parameters of our analysis by noting that the Texas Supreme Court

recently observed that the wording of the Texas Constitution’s due-course-of-law

provision differs slightly from the Due Process Clause of the Fourteenth Amendment

to the United States Constitution. See Mosley v. Tex. Health & Human Servs. Comm’n,

593 S.W.3d 250, 264 (Tex. 2019).1 The slight textual differences do not create

material distinctions in the meaning of the two provisions, and thus, Texas courts

interpret our constitution’s due-course provision by looking to the federal courts’

interpretations of the Due Process Clause. Id. (“‘While the Texas Constitution is

textually different in that it refers to “due course” rather than “due process,” we

regard these terms as without meaningful distinction and thus ‘have traditionally

followed contemporary federal due[-]process interpretations of procedural due[-

      1
       As explained in Mosley,

      The Texas Constitution’s due-course-of-law guarantee provides that
      “[n]o citizen of this State shall be deprived of life, liberty, property,
      privileges or immunities, or in any manner disfranchised, except by the
      due course of the law of the land.” Tex. Const. art. I, § 19. It is nearly
      identical to the Fourteenth Amendment’s due-process clause, which
      provides that “[n]o State shall make or enforce any law which shall
      abridge the privileges or immunities of citizens of the United States; nor
      shall any State deprive any person of life, liberty, or property, without
      due process of law . . . .” U.S. Const. amend. XIV, § 1.

593 S.W.3d at 264.

                                          8
]process issues.’” (quoting Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929

(Tex. 1995))).

      Texas courts apply a broad two-part test in deciding a due-course claim. Id.

That test turns on whether a plaintiff “(1) ha[s] a liberty or property interest that is

entitled to procedural due[-]process protection; and (2) if so, [a determination] what

process is due.” Id.

      Appellees agree that Appellant has a protectible liberty or property interest

sufficient to entitle him to due-course protection. This concession pretermits the

need for further discussion of what rises to the level of a protectible interest. Our

focus will be on what process is due.

               3.      In making our determinations of what process is due, we
                       must defer to decisions that are based on the professional
                       judgment of educators.

      A particular set of due-process/due-course rules apply in an academic setting;

these rules require that courts give deference to the decision makers in that setting.

These rules are derived from the federal precedents establishing the boundaries of

due-process protections that guide us in determining the scope of due-course

protections.     Our court has relied on that guidance to explain why we accord

deference to academic decisions.

      Our most comprehensive discussion of these precedents, which set the limits

of our review of academic decisions, occurred in Tobias v. University of Texas at



                                           9
Arlington, 824 S.W.2d 201, 211 (Tex. App.—Fort Worth 1991, writ denied).2 We cited

two opinions from the United States Supreme Court as lodestars for the principle of

limited review of academic decisions. See id. at 207–08 (citing Bd. of Curators of Univ. of

Mo. v. Horowitz, 435 U.S. 78, 92, 98 S. Ct. 948, 956 (1978), and Regents of Univ. of Mich.

v. Ewing, 474 U.S. 214, 225, 106 S. Ct. 507, 513 (1985)). The principle we gleaned

from these cases is that courts are ill-equipped to second-guess academic decisions

and that we may engage in that second-guessing only if there are allegations or proof

that a decision was based on something other than professional academic judgment.

See id. at 208. We later referred to the rule we had initially stated in Tobias as follows:

“When a reviewing court has found evidence of ‘professional judgment,’ such

evidence is considered sufficient to justify judgment against a student as a matter of

law.” Nkansah v. Univ. of Tex. at Arlington, No. 02-10-00322-CV, 2011 WL 4916355, at



      2
         The holding we reference in Tobias dealt with a different concept than we
review in this case—substantive versus procedural due process. 824 S.W.2d at 211.
“Substantive due[-]process challenges strike at the decision itself and not at the
procedures afforded the student in the academic decision-making process.” Brown v.
Univ. of Tex. Health Ctr. at Tyler, 957 S.W.2d 911, 916 (Tex. App.—Tyler 1997, no pet.).
In essence, substantive due process deals with whether the government may make a
decision limiting a person’s rights while procedural due process deals with the
protections that must be afforded when the government goes about making that
decision. United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 2101 (1987)
(stating that “[s]o-called ‘substantive due process’ prevents the government from
engaging in conduct that ‘shocks the conscience’ or interferes with rights ‘implicit in
the concept of ordered liberty’” and that “[w]hen government action depriving a
person of life, liberty, or property survives substantive due[-]process scrutiny, it must
still be implemented in a fair manner. This requirement has traditionally been referred
to as ‘procedural’ due process” (citations omitted)).

                                            10
*6 (Tex. App.—Fort Worth Oct. 13, 2011, pet. denied) (mem. op. on reh’g)

(per curiam).

       The rule of deference that we referenced in Tobias remains good law. Less than

a year ago, the Fifth Circuit summarized the holdings of the same precedents we cited

in Tobias to reiterate the rule that judicial intervention comes only in a case where a

court concludes that an academic decision was based on something other than

professional academic judgment:

       “When judges are asked to review the substance of a genuinely academic
       decision, . . . they should show great respect for the faculty’s professional
       judgment.” . . . Ewing, 474 U.S. [at] 225, 106 S. Ct. [at 513]. “Plainly, they
       may not override [an academic decision] 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.” Id. “Courts must accept, as consistent with due process, an
       academic decision that is not beyond the pale of reasoned academic
       decision-making when viewed against the background of the student’s
       entire career.” Wheeler v. Miller, 168 F.3d 241, 250 (5th Cir. 1999).

Patel v. Tex. Tech Univ., 941 F.3d 743, 747 (5th Cir. 2019).

       Our sister courts have phrased the acceptable point of judicial intervention a

bit differently than we did in Tobias but have still set a definite line that should not be

crossed in second-guessing academic decisions; these other courts drew the line based

on whether a decision was made in bad faith or was arbitrary and capricious because it

was made on factors not reasonably related to academic criteria. See Villarreal v. Tex.

S. Univ., 570 S.W.3d 916, 923 (Tex. App.—Houston [1st Dist.] 2018, pet. filed)

(per curiam) (acknowledging court’s prior precedent restricting review of academic


                                            11
decision but noting “the rule ‘assumes, of course, that the academic decision was

made in good faith,’ because if it was made in bad faith, the university was ‘not

entitled to the deferential standard of review used in cases of good faith academic

dismissals’”); Alanis v. Univ. of Tex. Health Sci. Ctr., 843 S.W.2d 779, 784 (Tex. App.—

Houston [1st Dist.] 1992, writ denied) (“If the dismissal was based upon academic

grounds, the school’s decision is not to be disturbed unless it was motivated by bad

faith or ill will unrelated to academic performance, or was based on arbitrary and

capricious factors not reasonably related to academic criteria.”); Eiland v. Wolf, 764

S.W.2d 827, 833 (Tex. App.—Houston [1st Dist.] 1989, writ denied) (“If the dismissal

was based on academic grounds, the school’s decision was not to be disturbed unless

it was motivated by bad faith or ill-will unrelated to academic performance[] or was

based on arbitrary and capricious factors not reasonably related to academic criteria.”

(citing Hines v. Rinker, 667 F.2d 699, 703 (8th Cir. 1981), and Wilkenfield v. Powell, 577

F. Supp. 579, 583 (W.D. Tex. 1983)).

              4.     The due-course/due-process protections required for a
                     student in an academic setting are slight.
       What process is due in any circumstance “is measured by a ‘flexible standard’

that turns on the ‘practical requirements of [those] circumstances.’” Enoh, 545 S.W.3d

at 620 (citing Than, 901 S.W.2d at 930);3 see also Shah v. Univ. of Tex. Sw. Med. Sch., 129


      3
        Enoh describes the factors that a court uses to determine the process due as a
flexible standard that includes


                                            12
F. Supp. 3d 480, 497–98 (N.D. Tex. 2015) (mem. op. & order) (“[D]ue process,

‘unlike some legal rules, is not a technical conception with a fixed content unrelated to

time, place[,] and circumstances’; instead, it is ‘flexible and calls for such procedural

protections as the particular situation demands.’” (citing Mathews v. Eldridge, 424 U.S.

319, 334, 96 S. Ct. 893, 902 (1976)).

       In an academic setting, the process due hinges on the nature of the underlying

act and depends on whether the matter involves discipline or academic performance.

Enoh, 545 S.W.3d at 621. A proceeding dismissing a student for a disciplinary reason

may require a hearing. Id.4 However, the Supreme Court has established a lower

standard for decisions that are solely based on academic performance. Id. at 622

(citing Horowitz, 435 U.S. at 86, 98 S. Ct. at 953).

       Precedent of the United States Supreme Court establishes that no hearing is

required when a dismissal occurs for an academic reason. Horowitz, 435 U.S. at 86 n.3,

       (1) the private interest that will be affected by the official action; (2) 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 (3) the government’s interest, including the
       function involved and the fiscal and administrative burdens that the
       additional or substitute procedural requirement would entail.

Id. (citing Than, 901 S.W.2d at 930).
       4
        We rely on the opinions of our sister courts and the federal courts for the rule
establishing this distinction. The Texas Supreme Court has not definitively
established the process due in an academic dismissal. See Than, 901 S.W.2d at 931
(“Because we conclude that Than’s dismissal involved a disciplinary matter, we need
not decide and express no opinion on what, if any, procedural due process must be
afforded when academic dismissals are involved.”).

                                             13
98 S. Ct. at 953 n.3; Enoh, 545 S.W.3d at 621–22; Tobias, 824 S.W.2d at 209. The

Supreme Court’s rationale for not requiring a hearing echoes to some extent the

reasons we outlined above regarding why we should not second-guess an academic

decision:      (1) academic institutions do not function in the same way as courts;

(2) academic decisions are “an expert evaluation of cumulative information and [are]

not readily adapted to the procedural tools of judicial or administrative

decisionmaking”; and (3) it would undermine the academic relationship between

teacher and student to impose court-like procedures on that relationship. Enoh, 545

S.W.3d at 621–22 (citing Horowitz, 435 U.S. at 87–90, 98 S. Ct. at 953–55).

       The minimal process requirements of an academic dismissal do not mean that

no process is due; students who are academically dismissed must still “be given some

meaningful notice and an opportunity to respond.” Id. at 622. The formulation of

what process is due provides that “a student has received all the procedural due

process required [for an academic dismissal] where ‘[t]he school fully informed [him]

of the faculty’s dissatisfaction with [his] clinical progress and the danger that this

posed to timely graduation and continued enrollment.’” Shah, 129 F. Supp. 3d at 500

(citing Horowitz, 435 U.S. at 85, 98 S. Ct. at 952); Enoh, 545 S.W.3d at 622. The

process requires no more than giving the student “the opportunity to characterize his

conduct and put it in proper context.” Burnett v. Coll. of the Mainland, 994 F. Supp. 2d

823, 826 (S.D. Tex. 2014) (mem. op. & order) (quoting Horowitz, 435 U.S. at 86, 98 S.

Ct. at 953).

                                          14
             5.     The failure of a governmental entity to follow a self-
                    established notice-and-hearing procedure does not translate
                    into a constitutional process violation.

      In making the determination of what process is due, the standard is set by the

Constitution and not the dictates of an institution’s internal rules or agreements:

simply stating that a state actor may have violated its own standards of process is not

sufficient to allege a facially valid due-course/due-process violation. In other words,

the decision regarding what flexible standard of process is required in a discrete

situation turns on constitutional standards and not simply the claim that a state actor

has violated the entity’s internal standards. See Enoh, 545 S.W.3d at 624 n.13. If a

party has received constitutionally adequate process, the claim for a violation of an

internal or promised procedure falls into a different category of claim than a

constitutional violation, such as a breach-of-contract or other state-law claim. The

Fifth Circuit has enunciated this principle as follows: “There is not a violation of due

process every time a university or other government entity violates its own rules.

Such action may constitute a breach of contract or a violation of state law, but unless

the conduct trespasses on federal constitutional safeguards, there is no constitutional

deprivation.” Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1230 (5th Cir. 1985)

(citing Garrett v. Mathews, 625 F.2d 658, 660 (5th Cir. 1980)); see also Dearman v. Stone

Cty. Sch. Dist., 832 F.3d 577, 584 (5th Cir. 2016) (same); Whatley v. Philo, 817 F.2d 19,

21 (5th Cir. 1987) (same); Enoh, 545 S.W.3d at 624 n.13 (“Dr. Enoh also emphasizes

that Texas Tech did not follow its own policies in the appeal process. The procedural

                                           15
due[-]process inquiry, however, focuses on what is constitutionally required, and not

whether particular written policies were followed.”).

              6.     Even when there is a defect in the process originally
                     accorded a student, a subsequent hearing may cure the
                     original failure.

       When there is a defect in the procedural due process accorded a student, that

failure may be cured by a subsequent action. Sullivan v. Hous. ISD, 475 F.2d 1071,

1077 (5th Cir. 1973) (“It is, however, well settled that a procedural defect in an initial

hearing before school officials can be cured by subsequent hearings.”); see also Murray

v. W. Baton Rouge Parish Sch. Bd., 472 F.2d 438, 443 (5th Cir. 1973) (same). What

curative action is sufficient in the eyes of the Texas Supreme Court is unclear. See

Than, 901 S.W.2d at 933. Apparently, a de novo hearing is sufficient, but the court

would not determine whether an appellate hearing would do. Id. (“While Sullivan and

Murray suggest that post-deprivation de novo proceedings may cure defects in the

initial process, it is less clear the extent to which ordinary appellate review can cure

initial procedural defects.”).

       C.     Application—Appellant has failed to plead a facially valid
              constitutional claim, and the trial court properly dismissed the suit
              below for lack of subject-matter jurisdiction.

       At bottom, Appellant places us in the middle of a decision that we should not

second-guess. Appellant characterizes himself as being “dismissed” from medical

school while the substance of his allegations is that he entered into an LOA

agreement, the terms of which required that he obtain permission to “reenroll” in

                                           16
school. Nothing tells us what permission the reenrollment process involved, but it

apparently vested school administrators with the discretion to decide if Appellant

could reenroll.    We cannot second-guess that decision because it turns on a

professional judgment of whether Appellant had the qualifications to continue to

pursue a career in the highly specialized field of medicine.

      Appellant then places several limitations on himself that are fatal to his appeal.

Appellant acknowledges that he was not permitted to reenroll based on academic

rather than disciplinary reasons. Yet, his brief does not argue or even cite the

principles that govern the very limited process that a student is entitled to in an

academic setting or make any effort to show why the process he received failed to

meet that standard or how his petition alleged a constitutional failing to meet that

standard.   Further, the operative facts pleaded by Appellant are set out in two

conclusory sentences that turn not on the claim that the process he received fell below

a constitutional minimum but on the claim that Appellees violated the terms of an

LOA agreement. Then, he acknowledges that he was able to appeal the decision but

challenges the sufficiency of the appeal with a one-sentence conclusory allegation that

the appeal process was not “meaningful.” Operating under the limitations imposed

by Appellant on his claim, and for the reasons we explain below, we conclude that

Appellant has not alleged a facially valid due-course/due-process claim.

      As a preliminary matter, Appellant’s brief uses most of its word count to deal

with two matters that are not in dispute. First, the brief elaborates on the basic

                                           17
concept that sovereign immunity does not bar a facially valid constitutional claim.

We agree that a claim is not barred when a petition asserts a facially valid

constitutional claim. See Klumb, 458 S.W.3d at 13. Next, the brief focuses on the

question of whether Appellant has a “protected liberty interest” in his medical

education. No one argues that he does not.

       Once he moves off topics that are not in controversy, Appellant’s brief funnels

down to a three-page argument that he was “not afforded the process he was due.”

The factual focus of his brief’s argument is as narrow as the factual allegations of his

petition.   Though Appellant’s amended petition spends most of its paragraphs

intimating that there was some unfairness in how he came to be on an LOA, the

process violation he alleges turns on the events by which he was denied reenrollment.

Nor does his brief challenge the process that produced the LOA agreement.

       Also, in an apparent attempt to give us grounds to question the decision to

deny his reenrollment, he calls it arbitrary, but the context of that word’s use shows

that he is not claiming the dismissal decision fell outside professional judgment.

Instead, he places the arbitrary label on the decision because he did not receive notice

of the hearing in which the decision was reached.

       To build an argument based on the claim that he did not receive notice of a

hearing where an academic decision was made places that argument on a flimsy

foundation. The precedents we cited above establish that an academic decision may

be made without a hearing. The process that is due requires only that the school fully

                                          18
inform the student of the faculty’s dissatisfaction with his clinical progress and of the

danger that this posed to timely graduation and continued enrollment. See Shah, 129

F. Supp. 3d at 500. Again, that process requires no more than giving the student “the

opportunity to characterize his conduct and put it in proper context.” Burnett, 994

F. Supp. 2d at 826. Appellant makes no allegations in his petition or arguments in his

brief that he did not receive this level of process.

       And the mechanism that he relies on to create his right to a hearing does not

aid him in stating a facially valid constitutional claim. He is clear in describing what

that mechanism was: Appellees dismissed him “in violation of the LOA agreement.”

Again, the failure of a state actor to follow an agreement or an entity’s own standards

does not state a constitutional violation but relegates a plaintiff to a breach-of-

contract or another state-law claim. See Enoh, 545 S.W.3d at 624 n.13.

       Appellant’s argument has another self-revealed flaw; his argument devolves

down further than a claim that Appellees failed to abide by the LOA agreement.

Instead, there is apparently a disagreement on how Appellant and Appellees

interpreted that agreement. Appellant states that the LOA agreement specified that

he was to seek reenrollment “by” July but interprets the preposition to mean that he

had until the end of July to reenroll. The school, however, had a different view, as

apparently evidenced by consideration of Appellant’s status in July. Thus, Appellant

not only fails to state a valid constitutional claim because his claim lacks the proper

grounding; he acknowledges, at least impliedly, that he is relying on nothing more

                                            19
than a difference of opinion to establish his claim. That reinforces our conclusion

that Appellant has not alleged a valid constitutional claim but rather a breach-of-

contract claim that he has tried to dress in constitutional garb.

        And even Appellant acknowledges that he did have some means—through an

appeal—to challenge the decision that he complains about. That appeal process

receives a one-sentence treatment in his petition: “[Appellant] properly appealed the

decision; however, [Appellant’s] request was immediately denied without any

meaningful opportunity for [Appellant] to be heard.” Though the supreme court has

questioned whether a deprivation of due process in an academic disciplinary

proceeding may be cured by an appeal process, the court has not dealt with the

limited due-process rights incident to a strictly academic decision. See Than, 901

S.W.2d at 933. Appellant’s conclusory characterization of what occurred through the

“appeal” does not allege that he did not receive the limited process rights associated

with an academic decision to be able to tell his side of the story. If we are to give the

requirement to plead facts stating a constitutional violation any meaning and not allow

it to be a meaningless formality, a pleading will have to go further than the conclusory

statement that Appellant offered. Accordingly, we overrule Appellant’s sole issue.




                                            20
                                  IV. Conclusion

      Having overruled Appellant’s sole issue, we affirm the trial court’s judgment

dismissing Appellant’s claim with prejudice.

                                                   /s/ Dabney Bassel

                                                   Dabney Bassel
                                                   Justice

Delivered: April 2, 2020




                                          21
