     Case: 13-60391      Document: 00512501109         Page: 1    Date Filed: 01/15/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                      No. 13-60391                            FILED
                                                                        January 15, 2014
                                                                         Lyle W. Cayce
MARK FAILS; LAURA FAILS,                                                      Clerk

                                                 Plaintiffs - Appellants
v.

JEFFERSON DAVIS COUNTY PUBLIC SCHOOLS,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:12-CV-34


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The plaintiffs’ daughter was barred from attending a school outside her
district. The plaintiffs filed a § 1983 action against Glenn Swan, the district’s
conservator, and the district for monetary damages and an injunction. The
plaintiffs assert a constitutionally protected right in sending their child to a
school outside their district. We agree with the district court’s holding that
there is no such constitutionally protected right, and consequently affirm its
summary judgment in favor of the defendants.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-60391
      At issue in this case is a policy by the Jefferson Davis County School
District (“the District”) prohibiting students in that district from transferring
to schools outside the district. The policy affected Courtney Fails, a resident
of the District, but who had been enrolled in the Lamar County School District
for the preceding five years. The Failses asked the Jefferson Davis County
School Board (“the Board”) to consider whether Courtney’s transfer would be
revoked by the new policy. The Board attempted to vote on the issue but was
stopped by the District’s conservator, Glenn Swan.
      What followed was a lengthy lawsuit in Mississippi state court.
Eventually the Mississippi Supreme Court dismissed the case as moot, as the
Failses’ purchase of a home in the Lamar County School District allowed
Courtney to attend schools there. Fails v. Jefferson Davis Cnty. Pub. Sch., 95
So. 3d 1223, 1225 (Miss. 2012). Courtney graduated from high school in 2012.
      Courtney’s parents then brought this second suit in state court against
Swan, in both his individual and official capacities, as well as the District. The
Mississippi Department of Education, a defendant that was subsequently
dismissed, removed the case to district court. The plaintiffs sought damages
for alleged violations of 42 U.S.C. §§ 1981, 1983. Their claims relate to alleged
violations of procedural and substantive Due Process under the Fourteenth
Amendment. The district court granted the defendants summary judgment on
all claims. The Failses now appeal.
                                        I.
      We review a grant of summary judgment de novo. Freed v. Neopost USA,
Inc., 701 F.3d 434, 438 (5th Cir. 2012). Summary judgment is appropriate if
there is “no genuine dispute as to any material fact and the [moving party] is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).




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                                        No. 13-60391
                                               II.
       The thrust of the plaintiffs’ argument on appeal is that the District and
Swan violated the Failses’ constitutionally protected interest in choosing what
school their daughter would attend. 1 The Failses argue that this amounted to
a substantive Due Process violation, entitling them to damages under § 1983.
They also argue that the defendants violated procedural Due Process in
depriving the Failses of a fair hearing before the Board.
       The procedural Due Process claim turns on whether the Failses have
shown a constitutionally protected interest in life, liberty or property.
Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (“[t]o state a Fourteenth
Amendment due process claim under § 1983, a plaintiff must first identify a
protected life, liberty or property interest and then prove that governmental
action resulted in a deprivation of that interest”) (internal quotation marks
and citation omitted); see also Zinermon v. Burch, 494 U.S. 113, 125 (1990).
Because the substantive Due Process claim also requires a constitutionally
protected interest, if the Failses cannot pinpoint such an interest, there will be
no basis for either of their § 1983 claims.
       The Failses first argue that precedent establishes a liberty interest that
would allow them to continue enrolling their daughter in a school outside their
district. They note that parents have a liberty interest in “direct[ing] the
upbringing and education of children under their control.” Pierce v. Soc’y of



       1We do not treat as freestanding claims the state law issues that the Failses raise on
appeal. First, their complaint makes no mention of state law claims. Second, in their brief
on appeal, the Failses frame the defendants’ alleged violations of state law in constitutional
terms. For instance, the Failses state “[u]ltimately, the issues before this Court rest on one
question: do actions by government actors that violate of [sic] state statutes violate the 14th
Amendment to the United States Constitution?”
       Also, while the plaintiffs mention briefly § 1981, they fail to cite any authority for this
claim and therefore waive it. See L&A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d
106, 113 (5th Cir. 1994).
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                                  No. 13-60391
Sisters, 268 U.S. 510, 534-35 (1925). The Failses, however, have brought no
cases to our attention that allow parents to enroll a child in the public school
of their specific and unilateral choosing. The cases they have cited all relate
to parents’ rights to enroll their children in private school. See Pierce, 268 U.S.
at 534-35; Barrow v. Greenville Indep. Sch. Dist., 332 F.3d 844, 847 (5th Cir.
2003); Brantley v. Surles, 718 F.2d 1354, 1359 (5th Cir. 1983).
      In fact, we have previously recognized that states have a compelling
interest in tying a student’s domicile to the district in which he attends public
schools. Arrendondo v. Brockette, 648 F.2d 425, 428-32 (5th Cir. 1981) (holding
that Texas has a compelling interest in requiring a child’s “presence in another
school district be for some cogent reason other than attending free public school
in that district before qualifying for tuition-free status”).      We have also
emphasized that “[a] schoolchild has no inalienable right to choose his school.”
U.S. v. Jefferson Cnty. Bd. of Educ., 380 F.2d 385, 390 (5th Cir. 1967). Our
precedent does not support the liberty interest that the Failses assert.
      The Failses argue, however, that a statutory right under Mississippi law
can serve as the basis for a § 1983 claim. They cite the following passage:
      [U]pon the petition in writing of a parent or guardian . . . individual
      students living in one school district . . . may be legally transferred
      to another school district, by the mutual consent of the school
      boards of all school districts concerned . . . . If such a transfer is
      approved by the transferee board, then such a decision shall be
      final.
MISS. CODE ANN. § 37-15-31(1)(a), (b).
      The Failses allege that, contrary to the Mississippi Attorney General’s
opinion on the subject, the Conservator lacked the legal authority to revoke a
transfer. The Failses only focus on the violation of MISS. CODE ANN. § 37-15-
31 as a predicate to their § 1983 claim. They do not argue that the statute,
which speaks in terms of discretionary relief, defines a constitutionally


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                                  No. 13-60391
protected property right. Cf. DePree v. Saunders, 588 F.3d 282, 289 (5th Cir.
2009).
        The Failses seem to misconstrue the nature of a § 1983 claim. They
allege that the defendants’ violation of MISS. CODE ANN. § 37-15-31 can serve
as a basis for a § 1983 suit. However, the Supreme Court has stated that there
are three types of § 1983 claims: (1) those predicated on the violation of certain
“specific protections defined in the bill of rights;” (2) substantive Due Process
violations; and (3) unfair procedures. Zinermon, 494 U.S. at 125. In short, a
violation of state law cannot, without more, serve as the basis for a § 1983
claim.
        We recognized this proposition in Castellano v. Fragozo 352 F.3d 939
(5th Cir. 2003) (en banc). Prior to Castellano, we had previously interpreted
the elements of a malicious prosecution claim under state law as identical to
the elements required for a § 1983 claim. Id. at 947. We put an end to this,
stating “that ‘malicious prosecution’ standing alone is no violation of the
United States Constitution, and that to proceed under 42 U.S.C. § 1983 such a
claim must rest upon a denial of rights secured under federal and not state
law.”    Id. at 942.   Applying Castellano here, it is clear that, assuming a
violation of MISS. CODE ANN. § 37-15-31, there is “no violation of the United
States Constitution.” Id.
        Finally, the Failses argue that Swan’s actions interfered with the
Mississippi Legislature’s powers, upsetting the balance of powers in an
unconstitutional matter. See Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 635-39 (1952). This claim was not asserted in the Failses’ complaint,
does not appear to have been argued before the district court, and is therefore
waived. See New Orleans Depot Servs., Inc. v. Dir., Office of Worker’s Comp.
Programs, 718 F.3d 384, 387-88 (5th Cir. 2013) (en banc).


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                                No. 13-60391
      Because we hold that the Failses have failed to assert a federal
constitutional violation, we also hold that there is no basis for their § 1983
claims relying on substantive and procedural Due Process. Accordingly, we do
not need to consider the defendants’ immunity and mootness arguments.
                                     III.
      For the foregoing reasons, the district court’s award of summary
judgment is
                                                                  AFFIRMED.




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