Opinion

Haley Mariah Anderson v. Paul E. Stanton, Jr.

Court
Court of Appeals of Tennessee
Filed
May 26, 2010
Status
Published
On the bench
Judge D. Michael Swiney
Cited by
0 cases
Authority
More cited than 29.3%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 10, 2010 Session

HALEY MARIAH ANDERSON, ET AL. v. PAUL E. STANTON, JR., ET AL.

Appeal from the Chancery Court for Washington County

No. 36989 G. Richard Johnson, Chancellor

No. E2009-01081-COA-R3-CV - FILED MAY 26, 2010

Haley Mariah Anderson and Macey Elizabeth Anderson (“the Children”) by next friend and

father, Mac Todd Anderson (“Father”), sued Paul E. Stanton, Jr. (“Stanton”), Hal Knight

(“Knight”), Deborah Defrieze (“Defrieze”), d/b/a East Tennessee State University, University

School (“University School”)1 (or collectively “Defendants”), and the Washington County

Board of Education seeking, in part, to prevent University School from withdrawing the

Children from enrollment in University School due to alleged actions of the Children’s

mother, Treda Anderson (“Mother”). Defendants filed a motion for summary judgment. The

Trial Court held a hearing on Defendants’ motion for summary judgment, entered an order

granting Defendants summary judgment, and certified the order as final pursuant to Tenn.

R. Civ. P. 54.02. The Children appeal to this Court the grant of summary judgment primarily

raising an issue regarding procedural due process. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,

P.J., and C HARLES D. S USANO, J R., J., joined.

Guy W. Blackwell, Gray, Tennessee, for the appellants, Haley Mariah Anderson and Macey

Elizabeth Anderson by next friend and father, Mac Todd Anderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

and Melissa Moreau, Assistant Attorney General, for the appellees, Paul E. Stanton, Jr., Hal

1

The Washington County Board of Education is not involved in this appeal. We will refer to

defendants Stanton, Knight, and Defrieze d/b/a University School collectively as “Defendants” with the

understanding that although they are the only defendants involved in this appeal, they are not the only

defendants involved in this lawsuit.

Knight, and Deborah Defrieze, d/b/a East Tennessee State University, University School.

OPINION

Background

University School is a public school in Washington County, Tennessee that is

considered to be a school of mutual choice. Admission to University School is determined

first by a lottery and then by an interview process. The Children were enrolled as students

in University School and each had attended University School since kindergarten. At the

beginning of 2008, the older of the Children was in the eighth grade and the younger was in

the third grade at University School.

Students who are enrolled at University School and their parents sign a copy

of the University School Student/Parent Handbook (“the Handbook”), which provides, in

pertinent part:

University School students are subject to all public school laws, the policies

and regulations of the Tennessee State Board of Education as stated in the

Tennessee Code Annotated (TCA), and the policies and regulations of the

State University and Community College System of Tennessee as administered

through the President of ETSU.

***

Parent/Students Code of Conduct: Attending University School is your choice.

Please note that University School also has the choice at anytime to convene

a committee to discuss options which may include withdrawal when academic

progress, behavior or attendance becomes a concern. Withdrawal may also

result when the conduct of any student or parent is determined to interfere with

the operation of University School or ETSU.

In early January parents/guardians of currently enrolled students are mailed a

letter to re-enroll their child. Parents must return this enrollment form and

materials fee by the specified date or the child’s position in the school will be

considered open. This child will then be placed at the bottom of the waiting

list; not on the sibling list.

***

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University School is not the primary school of assignment, but rather a school

of mutual choice.

***

University School may require withdrawal of an entire family from the school

if a determination is made that the parents and/or students have interfered or

continue to interfere with the peaceful operation of University School or

ETSU. Any such decision is subject to review by the President of the

University.

***

University School is not the primary school of assignment, but rather a school

of mutual choice. University School has the option, with appropriate

consultation, to withdraw any child or children from the school if the

parents/guardians consistently conduct themselves in a manner which

interferes with the operation, safety, academic or extra curricular activities of

the school. Determinations to withdraw children from the school on such

grounds are reviewable by the President of the University or his designee.

By letter dated February 7, 2008, Father and Mother were notified by

University School that the Children would be withdrawn from University School on March

1, 2008 due to alleged incidents involving Mother. The February 7, 2008 letter notified

Father and Mother that they had the right to appeal the withdrawal to Stanton, the President

of the University. As directed, Mother submitted to Stanton a written response to the

February 7, 2008 letter in which she denied the truth of three of the four alleged incidents

detailed in the February 7, 2008 letter. In her letter, Mother apologized for one of the stated

incidents, one which involved Mother distributing inappropriate notes about University

School administration written on donut bags and given to some University School employees.

Father and Mother also requested a meeting with Stanton and were allowed to submit their

position in writing, but they were not allowed to ask him any questions. Father and Mother

argue that their meeting with Stanton did not constitute a hearing. After Father and Mother

met with Stanton, they were informed by letter that Stanton had decided to uphold the

decision to withdraw the Children from University School.

The Children, through Father, sued the defendants under 42 U.S.C. § 1983

claiming, in part, that the Children had a property right to continue their education at

University School due to a contract created by the Handbook and that they had been denied

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procedural due process when they were withdrawn from enrollment. Mother is not a party

to this lawsuit.

The Children filed a motion for a temporary restraining order seeking an order

“restraining Defendants from prohibiting [the Children] from entering and pursuing their

public education at ETSU University School.” The Trial Court held a hearing on the motion

for a temporary restraining order and entered its order on April 16, 2008 finding and holding,

inter alia, that the Children would be permitted to attend University School “during the

pendency of this proceeding or other Orders of this Court,” that Mother was prohibited from

entering University School and ordered to have no contact with University School

employees, and that Father would conduct any and all contacts with University School

employees regarding the Children’s curricular or extracurricular activities during the

pendency of this suit.

Defendants filed a motion to dismiss for failure to state a claim upon which

relief can be granted. After a hearing, the Trial Court entered an order denying the motion

to dismiss. Defendants then filed a motion for summary judgment supported, in part, by the

affidavit of Stanton, which provided, in pertinent part:

I had no involvement in the decision to withdraw the Anderson children

from University School. Per University School policy, I am authorized to hear

appeals from a decision to withdraw. As President of East Tennessee State

University, I have the authority to reinstate children who are withdrawn.

My office received a letter dated February 8, 2008, from Mrs.

Anderson. In the letter she requested information as to an appeal of her

children’s withdrawal from University School. I advised her to the appeal

process. She responded with a narrative of her position. A hearing was

conducted on March 17, 2008. I heard the Andersons[’] appeal. Mrs.

Anderson had the opportunity to tell me her side of the story in regard to the

reasons for the withdrawal. I considered the letter of withdrawal, Mrs.

Anderson’s written and verbal responses, and the voluminous information

which had been accumulated over the years. I decided to uphold the

withdrawal and so notified the Andersons on March 18 th .

Stanton also gave a deposition during which he testified he met with Mother

and Father on March 17, 2008 in his office. When asked if there were ground rules for the

meeting, he testified: “One of the ground rules was that I was not serving and this is my

interpretation as a witness, therefore no questions were to be asked of me. Otherwise, they

could bring whatever information with them in writing or ready for verbal presentation.”

-4-

Stanton testified that he asked Mother and Father “quite a number” of questions during the

meeting. He further stated that prior to this meeting he had reviewed “every single document

that University School had on the matter or that Mr. Kelly may have had in his office or

human resources had in its office.” The meeting lasted approximately one hour.

Stanton testified that after the meeting, he “went back through every page,

every document again, including the document that [Mother and Father] had sent forward

themselves” before making his decision. He stated that his “intention [with regard to the

appeal of the withdrawal decision] and what was carried out was a review from the

beginning” and that he reviewed the matter de novo. When asked if he made any findings

of fact as a result of his review of the record, he testified:

Well, in a couple of cases between the time the Andersons were in my office

and my letter that went out there was further review of an incident with Tracy

Smith, in which the Andersons said that they were not present neither one of

them on the date indicated, I think it was February 1 st . We checked with Dr.

Defrieze and the student. They both indicated seeing Mrs. Anderson on the

ramp - - I’m not even sure what the ramp is - - on that date. So she was on the

campus. And I believe there was also the recheck into the situation with the

doughnut bag and Mrs. Anderson indicating that she had only done that in the

privacy of offices. She admitted in my office to having done that in the

privacy of their offices. Two employees of University School had come

forward. We went back; double checked that to make certain that they were

done in the hallway. So I had two issues of significant credibility on a couple

of these factors.

After a hearing on Defendants’ motion for summary judgment2 , the Trial Court

entered its order on April 21, 2009 granting Defendants summary judgment, holding that the

restraining order allowing the Children to remain at University School pending the outcome

of the case would expire, and directing entry of a final judgment as to Defendants pursuant

to Tenn. R. Civ. P. 54.02. The Children filed an appeal to this Court.

On June 30, 2009, the Children filed with this Court an Ex Parte Application

for Restraining Order seeking an order prohibiting Defendants from withdrawing the

Children from University School before the start of the 2009-2010 school year pending the

outcome of their appeal. This Court denied the ex parte application by order filed July 2,

2

Plaintiffs also filed a motion for summary judgment. The time for Defendants to respond to this

motion had not run when the Trial Court held its hearing on Defendants’ motion for summary judgment. As

a result, the Trial Court heard argument at that time on Defendants’ motion only.

-5-

2009 finding and holding, inter alia, that the Children had failed to comply with Tenn. R.

App. P. 7(a) and present the request first to the Trial Court.

On July 9, 2009, the Children filed with the Trial Court an Ex Parte

Application for Restraining Order seeking an order prohibiting the defendants from

withdrawing the Children from University School pending an appeal. The Trial Court denied

the application. The Children then filed a motion seeking to have this Court review the Trial

Court’s denial of their application for a stay of judgment pending appeal. By order filed July

24, 2009, this Court denied the motion finding and holding, inter alia:

First, the [Defendants] were never served with the motion to stay filed by [the

Children] in the trial court. Second, [the Children] did not file the motion in

the trial court until July 9, 2009, over two months after entry of the judgment

and the day after the commencement of the 2009-2010 school year at East

Tennessee State University’s K-12 public school. Even [the Children’s] first

attempt to obtain a stay of execution of the judgment, filed before [they] filed

any motion for stay with the trial court, was not filed with this court until June

30, 2009. Under the circumstances, it cannot be argued that [the Children]

would have suffered immediate and irreparable injury, loss or damage before

notice of a motion for stay could be served on [Defendants], and a hearing had

on such motion, if [the Children] had sought relief from the trial court in a

more timely fashion. See Tenn. R. Civ. P. 65.03 (authorizing the granting of

a restraining order, without notice to the adverse party, only if it is clearly

shown that “the applicant’s rights are being or will be violated by the adverse

party and the applicant will suffer immediate and irreparable injury, loss or

damage before notice can be served and a hearing had thereon”).

Discussion

Although the Children raise two issues on appeal, the dispositive issue is

whether the Trial Court erred in granting summary judgment to Defendants. Our Supreme

Court reiterated the standard of review in summary judgment cases as follows:

The scope of review of a grant of summary judgment is well

established. Because our inquiry involves a question of law, no presumption

of correctness attaches to the judgment, and our task is to review the record to

determine whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

-6-

A summary judgment may be granted only when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter

of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.

1993). The party seeking the summary judgment has the ultimate burden of

persuasion “that there are no disputed, material facts creating a genuine issue

for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.

If that motion is properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the burden, the

movant must either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party cannot establish

an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,

270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient

to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not

apply the federal standard for summary judgment. The standard established

in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),

sets out, in the words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd

v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.

175, 220 (2001).

Courts must view the evidence and all reasonable inferences therefrom

in the light most favorable to the non-moving party. Robinson v. Omer, 952

S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate

only when the facts and the reasonable inferences from those facts would

permit a reasonable person to reach only one conclusion. Staples v. CBL &

Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this

Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

In the case now before us on appeal, the Trial Court found and held, inter alia,

that the Children did not have a property interest in continued attendance at University

School, and, even if they did, they were not deprived of procedural due process when they

were withdrawn from University School. As this Court has explained:

The Fourteenth Amendment to the United States Constitution provides,

in relevant part, 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

-7-

any state deprive any person of life, liberty, or property, without due process

of law….” Article I, section 8 of the Tennessee Constitution states that “no

man shall be … deprived of his life, liberty or property, but by the judgment

of his peers or the law of the land.” The phrase “law of the land” is

synonymous with the phrase “due process of law” found in the Fourteenth

Amendment. State v. Hale, 840 S.W.2d 307, 312 (Tenn. 1992).

The first question that arises in addressing [the issue of whether there

has been a violation of the due process clauses of the Tennessee and United

States Constitutions] is whether the plaintiffs have identified a “liberty” or

“property” interest that triggers the due process requirements. As the United

States Supreme Court’s teaching in Bd. of Regents of State Colleges v. Roth,

408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972), makes clear,

[t]o have a property interest in a benefit, a person clearly

must have more than an abstract need or desire for it. He must

have more than a unilateral expectation of it. He must, instead,

have a legitimate claim of entitlement to it.

***

Property interests, of course, are not created by the Constitution.

Rather they are created and their dimensions are defined by

existing rules or understandings that stem from an independent

source such as state law - - rules or understandings that secure

certain benefits and that support claims of entitlement to those

benefits.

C.S.C. v. Knox County Board of Education, No. E2006-00087-COA-R3-CV, 2006 Tenn.

App. LEXIS 802, at **25-28 (Tenn. Ct. App. Dec. 19, 2006), no appl. perm. appeal filed.

Defendants argue on appeal that the Children have no property right in their

continued attendance at University School. Plaintiffs argue that the Children do have a

contractual property right created primarily by the Handbook. Defendants concede that the

Children’s parents were required to sign “such an agreement and agreed to conduct

themselves pursuant to University School policies.”

Defendants rely, in part, upon the case of Ward v. Athens City Bd. of Educ., in

which the United States Court of Appeals for the Sixth Circuit held that the plaintiff children

in that case had no property right in continued attendance at the specific public school where

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they were tuition students. Ward v. Athens City Bd. of Educ., No. 97-5967, 1999 U.S. App.

LEXIS 22766, at **21-22 (6th Cir. Aug. 11, 1999)3 . The Ward case, however, is easily

distinguishable from the case now before us on appeal in that the Athens City Board of

Education had a written policy which stated: “The Board of Education reserves the right to

accept or reject any tuition student(s) on an annual basis.” Id. at *2.

In contrast, the Handbook provided that once properly enrolled, University

School students would have the right to remain at University School until graduation unless

they failed to pay fees, failed to submit re-enrollment paperwork each year, or were subject

to withdrawal for problems with academic progress, behavior, attendance, or conduct by the

student or parent which interfered with the operation of University School or ETSU.

Defendants rely upon the parents having “agreed to conduct themselves pursuant to

University School policies” as set forth in the Handbook as the basis for the withdrawal of

the Children from University School. That same Handbook provides that the Children could

continue at University School until graduation absent certain circumstances as detailed in the

Handbook. Thus, the language of the Handbook created a contractual right to continued

enrollment at University School except in certain specified circumstances. As such, we hold

that the Children did have a property interest in continued enrollment at University School

that triggered due process protections.

We thus must consider whether the Children received procedural due process.

As pertinent to this issue, the United States Supreme Court has instructed:

“Once it is determined that due process applies, the question remains

what process is due.” Morrissey v. Brewer, 408 U.S., at 481, 92 S. Ct., at

2600. We turn to that question, fully realizing as our cases regularly do that

the interpretation and application of the Due Process Clause are intensely

practical matters and that “[the] very nature of due process negates any concept

of inflexible procedures universally applicable to every imaginable situation.”

Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 1748, 6 L.

Ed. 2d 1230 (1961). We are also mindful of our own admonition:

“Judicial interposition in the operation of the public

school system of the Nation raises problems requiring care and

restraint…. By and large, public education in our Nation is

committed to the control of state and local authorities.”

Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 270, 21

3

We note that the Ward case is an unreported case and may only be cited in a court in the Sixth

Circuit in limited situations pursuant to the Sixth Circuit Rules.

-9-

L. Ed. 2d 228 (1968).

There are certain bench marks to guide us, however. Mullane v.

Central Hanover Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950),

a case often invoked by later opinions, said that “[m]any controversies have

raged about the cryptic and abstract words of the Due Process Clause but there

can be no doubt that at a minimum they require that deprivation of life, liberty

or property by adjudication be preceded by notice and opportunity for hearing

appropriate to the nature of the case.” Id. at 313, 70 S. Ct. at 657. “The

fundamental requisite of due process of law is the opportunity to be heard,”

Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 783, 58 L. Ed. 1363

(1914), a right that “has little reality or worth unless one is informed that the

matter is pending and can choose for himself whether to … contest.” Mullane

v. Central Hanover Trust Co., supra, 339 U.S. at 314, 70 S. Ct. at 657. See

also Armstrong v. Manzo, 380 U.S. 545, 550, 85 S. Ct. 1187, 1190, 14 L. Ed.

2d 62 (1965); Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168-

169, 71 S. Ct. 624, 646-647, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring).

At the very minimum, therefore, students facing suspension and the

consequent interference with a protected property interest must be given some

kind of notice and afforded some kind of hearing. “Parties whose rights are

to be affected are entitled to be heard; and in order that they may enjoy that

right they must first be notified.” Baldwin v. Hale, 1 Wall. 223, 233, 17 L. Ed.

531 (1864).

It also appears from our cases that the timing and content of the notice

and the nature of the hearing will depend on appropriate accommodation of the

competing interests involved. Cafeteria Workers v. McElroy, supra, 367 U.S.

at 895, 81 S. Ct. at 1748; Morrissey v. Brewer, supra, 408 U.S. at 481, 92 S.

Ct. at 2600.

***

We do not believe that school authorities must be totally free from

notice and hearing requirements if their schools are to operate with acceptable

efficiency. Students facing temporary suspension have interests qualifying for

protection of the Due Process Clause, and due process requires, in connection

with a suspension of 10 days or less, that the student be given oral or written

notice of the charges against him and, if he denies them, an explanation of the

evidence the authorities have and an opportunity to present his side of the

story. The Clause requires at least these rudimentary precautions against

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unfair or mistaken findings of misconduct and arbitrary exclusion from school.

There need be no delay between the time “notice” is given and the time

of the hearing.

***

We stop short of construing the Due Process Claus to require,

countrywide, that hearings in connection with short suspensions must afford

the student the opportunity to secure counsel, to confront and cross-examine

witnesses supporting the charge, or to call his own witnesses to verify his

version of the incident.

Goss v. Lopez, 419 U.S. 565, 577-83, 95 S. Ct. 729, 738-40, 42 L. Ed. 2d 725 (1975)

(footnote omitted). The Goss case involved students who were facing up to a ten day

suspension from school as a disciplinary measure due to alleged conduct of the student.

Goss, 419 U.S. at 568.

The Children argue, in part, that they did not receive sufficient notice of the

withdrawal to satisfy due process requirements because they never were notified that the

Appeals Committee, which made the initial decision to withdraw the Children, was meeting

to discuss Mother’s alleged actions. While it may be true that the Children and their parents

were not notified that a meeting had been called to discussed Mother’s alleged actions, the

Children ignore that they did receive notice several weeks before the date upon which the

withdrawal was to occur. The February 7, 2008 letter notifying Father and Mother about the

withdrawal gave notice that the Children would be withdrawn from University School on

March 1, 2008, and also that they had a right to appeal that decision. Because the Children

received notice of the impending withdrawal in ample time to allow them to contest the

decision, we find that notice was given sufficient to satisfy due process requirements.

The Children also argue that they did not receive a hearing sufficient to satisfy

due process requirements. They contend that they were not given a proper hearing because

the decision to withdraw the Children was made based in part upon evidence which would

not be admissible in court, or evidence which constitutes hearsay. They further argue that

they were not granted a proper hearing because they were not allowed to ask questions or to

cross-examine witnesses.

The United States Supreme Court, however, has instructed that a proper

hearing in a school setting for purposes of procedural due process does not necessarily

require formal “trial-type procedures [which] might well overwhelm administrative facilities

in many places and, by diverting resources, cost more than it would save in educational

-11-

effectiveness.” Id. at 583. Father and Mother were given the opportunity to submit to

Stanton in writing any materials they chose to support their appeal of the withdrawal

decision. The February 7, 2008 letter clearly informed the Children, Father, and Mother of

the allegations upon which the withdrawal decision was based. Furthermore, Father and

Mother requested and were granted a meeting with Stanton in which they were able to

answer any and all questions Stanton had with regard to the allegations. In short, they were

given ample opportunity to tell Mother’s side of the story.

We cannot say that the potential deprivation of property that will occur in this

case, i.e., the Children will be withdrawn from, and no longer allowed to attend, University

School, is significantly more serious than the potential deprivation that the United States

Supreme Court discussed in Goss. In Goss, the students were facing suspensions as a

disciplinary measure, which would mean that, if the suspensions were upheld, the student

would be deprived of public education for the length of the suspension, and would be subject

to having the discipline recorded in his or her educational record. Id. at 574-75.

In contrast, the Children are not facing disciplinary measures of any sort. Even

if the withdrawal is upheld, no information adverse to them will be noted in their educational

records. Furthermore, even if the withdrawal is upheld, the Children will not be losing even

one day of publicly-funded education. Instead, they simply will not be able to attend

University School. They still will be free to attend the public school zoned for the area in

which they live, which is what they would have been entitled to do if they never had been

admitted to University School via the lottery system. As the potential deprivation cannot be

said to be significantly more serious than the deprivation faced by the plaintiffs in Goss, we

will not say that a level of due process higher than the one granted in Goss is necessary to

satisfy notions of minimum due process.

In their brief on appeal, the Children also argue:

As a public school, University School was subject to T.C.A. 49-6-3007, which

defined the term expelled as “removed from the pupil’s regular school program

at the location where the violation occurred or moved from school attendance

altogether as determined by the school official.” That was clearly what

happened here, it was [the Children’s] public education at University School

that was threatened and under T.C.A. 49-6-3401 and the U.S. and Tennessee

constitutions, at least minimum due process was required.

While we agree with the assertion that “minimum due process was required,” the Children

are mistaken in their assertion that Tenn. Code Ann. § 49-6-3401 applies in this case. This

statute applies to situations where a student is subject to suspension or expulsion from school

-12-

as discipline for that student’s own wrongful actions. In the case now before us on appeal,

the Children are not being disciplined and are not subject to suspension or expulsion for their

own wrongful actions. Tennessee Code Ann. § 49-6-3401 is wholly inapplicable given the

facts and circumstances in this case.

The Children also discuss in their brief on appeal an ETSU “post-secondary

Telephone Directory and Student Handbook,” which they assert provided procedural due

process procedures that should have been followed in their case. Importantly, we note that

this directory and handbook was applicable to post-secondary students enrolled at ETSU and

not students enrolled at University School. Furthermore, and even more importantly, as best

as we can tell from the record before us on appeal, the procedures detailed in the ETSU

directory and handbook apply in disciplinary circumstances in the same manner as does

Tenn. Code Ann. § 49-6-3401, and, just like the statute, are not applicable to the factual

situation in the case now before us.

After a careful and thorough review of the record on appeal, viewing the

evidence and all reasonable inferences therefrom in the light most favorable to the Children,

as we must, we find that there are no genuine issues of material fact and Defendants are

entitled to judgment as a matter of law. The Children had a property right in continued

enrollment in University School which triggered due process protections. The Children

received due process when they were notified by the February 7, 2008 letter that the

withdrawal would occur several weeks later, and also were provided an opportunity to a de

novo appeal to Stanton of the withdrawal decision. Given this, we hold that the Trial Court

did not err in granting Defendants summary judgment.

Our determination that the Children received procedural due process pretermits

the necessity of considering whether Defendants are entitled to qualified immunity.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

appellants, Haley Mariah Anderson and Macey Elizabeth Anderson by next friend and father,

Mac Todd Anderson, and their surety.

_________________________________

D. MICHAEL SWINEY, JUDGE

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