Opinion

Affirmed and Opinion filed June 12, 2007

Affirmed and Opinion filed June 12, 2007.

In The

Fourteenth Court of

Appeals

____________

NO. 14-06-00295-CV

____________

ROBERT JACKSON , Appellant

V.

TEXAS SOUTHERN UNIVERSITY-THURGOOD

MARSHALL SCHOOL OF LAW, J. FAITH JACKSON, INDIVIDUALLY AND AS EMPLOYEE, AND

MCKEN CARRINGTON , INDIVIDUALLY AND AS EMPLOYEE, Appellees

On Appeal from the 234th

District Court

Harris County, Texas

Trial Court Cause No. 04-45694

O P I N I O N

Appellant, Robert Jackson, was dismissed from Texas

Southern University = s Thurgood Marshall School of Law for

failure to maintain at least a 2.0 grade point average. Jackson attributed his

dismissal to a low grade received in a writing class, after the instructor gave

him a zero for collaborating on a closed memo. Jackson sued Texas Southern

University (TSU) and five other defendants, both individually and in their

official capacities for defamation, fraud, breach of contract, and due process

violations pursuant to 42 U.S.C. ' 1983. The trial

court granted the defendants = motions for summary judgment, and Jackson

now appeals only the due process claims as to three defendants. Because we

find that Jackson received due process, we affirm.

Factual and Procedural Background

Jackson, a former police officer, began law school at TSU

in the fall of 2003. One of his courses that fall was Lawyering Process I,

taught by Professor J. Faith Jackson. The class was broken into several

components. The final paper in the course, worth forty-nine percent of the

total grade, was a A closed memo, @ meaning that the

students must prepare the memo without the aid of anyone else.

One of the defendants below, Jong Kim, was a classmate of

Jackson = s who asked for a

draft of Jackson = s paper on two occasions, ostensibly to

use as a guideline. Jackson acquiesced by printing out a copy of his paper and

giving it to Kim.

After noting the striking similarities between the papers,

Professor Jackson assigned both Jackson and Kim a zero. When Jackson saw his

final grade for the course, a score of sixty-seven percent, he went to see

Professor Jackson. During their initial conversation, Jackson admitted to

giving Kim a copy of his paper. A second meeting was then arranged between

Professor Jackson, Jackson, and Kim. At this meeting, Professor Jackson

pointed out the similarities in the papers and allowed each person to explain

to her their version of events. Concluding that, at the very least, the

students had collaborated on a closed memo, Professor Jackson assigned them

both a grade of zero for the memo. Jackson took no further steps at that time

to have his grade changed.

However, during his spring semester Jackson pursued an

honor court complaint against Kim, even though such a complaint could do

nothing to change his own grade. Jackson also asked the Academic Standards

Committee to extend the deadline for filing a request for a grade change,

because he wanted to resolve the Kim honor court matter before he appeared

before the Academic Standards Committee. After the spring semester ended, Jackson

was notified by letter of his academic dismissal, pursuant to school policy.

Jackson replied by letter stating that he had been waiting for the resolution

of Kim = s honor court

proceeding before appealing his grade. He then formally filed his appeal with

the Academic Standards Committee despite not having the Kim issue resolved.

The Academic Standards Committee met with Jackson and his

attorney twice in the month of August. The first meeting was spent discussing Jackson = s frustration with

the honor court = s failure to act in a timely manner on his

complaint against Kim. The second meeting was approximately a week later, and

Jackson and his attorney each had a chance to speak, with the committee asking

questions. The committee was not concerned with whether Jackson cheated, but

only with whether Jackson had been treated differently from other similarly

situated students. The committee ultimately denied Jackson = s petition, and

his dismissal was affirmed.

Jackson sued TSU, Professor Jackson, Dean Carrington,

Academic Dean Vergie Mouton, Associate Dean Fernando Colon-Navarro, and Jong

Kim. He alleged defamation, breach of contract, fraud and violation of due

process pursuant to 42 U.S.C. ' 1983. Kim was eventually nonsuited. The

remaining defendants moved for summary judgment on all causes of action. The

summary judgment was granted without specifying which arguments in the motion

the court found meritorious. Jackson appeals here only the grant of summary

judgment as to the due process claims. [1]

Analysis

I. Standard

of Review

The defendants stated three grounds for dismissal of the

due process claims C sovereign immunity as to TSU and as to the

defendants in their official capacities, qualified immunity as to the

defendants in their individual capacities, and satisfaction of due process. In

its order granting summary judgment, the trial court did not state which ground

it found meritorious. We review a trial court = s grant of summary

judgment de novo, taking as true all evidence favorable to the nonmovant, and

indulging every reasonable inference and resolving any doubts in the nonmovant = s favor. Provident

Life and Acc. Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). When the

trial court = s order does not specify the grounds for its summary

judgment, we must affirm the summary judgment if any of the theories presented

below and preserved on appeal are meritorious. Id. at 216 . In light of

this standard, we consider only the third basis for the motion for summary

judgment C satisfaction of

due process C because it is dispositive of the appeal.

II. Procedural

Due Process Claim Fails Because Interest Asserted Is Not Protected by Due

Process

Review of a procedural due process claim involves a two

step analysis: (1) we must decide whether Jackson was deprived of a protected

interest; and (2) if so, what process is due. Logan v. Zimmerman Brush Co. ,

455 U.S. 422, 428 (1982). The range of interests protected by due process is

not infinite. Bd. of Regents of State Colls. v. Roth , 408 U.S. 564 , 569 B 70 (1972). For

this reason, framing the nature of the property interest allegedly deprived is

of fundamental importance in claiming a violation of due process.

In his appeal, Jackson raises a very specific complaint

regarding his claim of procedural due process. He alleges a property interest

in TSU = s rules and

regulations themselves. He states, A [w]hen TSU

codified its Rules and Regulations, it conferred a right, or entitlement, to

the student body that is protected by the Fourteenth Amendment. @ He also cites to

Sylvester v. Texas Southern University , 957 F. Supp. 944 (S.D. Tex.

1997), for the proposition that A TSU = s Rules and

Regulations conferred a benefit on the student body sufficient to merit due

process protection. @ In his concluding remarks in one section

of his brief, he states, A In summary, Appellant contends the success

of his appeal rests upon whether the Court holds that appellant had a due

process right to procedures established by TSU = s Rules and

Regulations. @

However, the United States Supreme Court has made it clear

that an individual does not acquire a substantive interest in specific

procedures developed by the State. The Court explained,

Process is not an end in itself.

Its constitutional purpose is to protect a substantive interest to which the

individual has a legitimate claim of entitlement....The State may choose to

require procedures for reasons other than protection against deprivation of

substantive rights, of course, but in making that choice the State does not

create an independent substantive right.

Olim

v. Wakinekona , 461 U.S. 238 , 250 B 51 (1983); accord

Town of Castle Rock, Colo. v. Gonzales , 545 U.S. 748 , 771 B 72 (2005).

Jackson = s entire claim is

that his due process rights were violated because TSU did not follow its own

rules, and that he had a substantive interest in the process itself. Notably,

he does not assert that the process he was given did not meet minimum due

process standards.

Following the reasoning of Olim we conclude that

Jackson has failed to state a cognizable due process claim because he has no

substantive interest in specific rules.

III. Substantive

Due Process Satisfied

Reading his brief very generously, Jackson = s brief also

raises a substantive due process claim. Specifically, he claims he has the

right to have his writing assignment fairly graded. He argues that the

defendants = judicial admissions preclude the notion that the zero

was given as a disciplinary measure for cheating; he claims the admissions

prove instead that the zero was a purely subjective academic evaluation of

Jackson = s work. This

would aid Jackson because his grade of zero is more likely to be found

arbitrary and unreasonable if this court is precluded from considering the fact

that the zero was given as punishment for cheating.

Jackson = s judicial admission argument falls flat.

First, the admission stating that Jackson = s dismissal was

academic rather than disciplinary states a conclusion of law, not subject to

judicial admission. See Jaksa v. Regents of the Univ. of Mich. , 597 F.

Supp. 1245 , 1248 n.2 (E.D. Mich. 1984) (resolving question of whether

suspension for cheating was disciplinary or academic as a matter of law on

summary judgment); H.E. Butt Grocery Co. v. Pais , 955 S.W.2d 384, 389

(Tex. App. C San Antonio 1997, no pet.) (holding that a party may

not judicially admit a question of law). Second, the alleged judicial

admission stating that Jackson was never accused of cheating is taken out of

context. The sentence he cites in the motion for summary judgment clearly

means to say only that the administration never formally charged him with

cheating, since the following sentence in the motion discusses the fact that

Professor Jackson gave him a zero for not working independently on a paper

requiring independent work. Finally, any admissions that formal charges were

not filed, or that the school itself never took any actions against Jackson, do

not preclude the fact that the zero was given by the professor as a

disciplinary measure. Therefore, we do not accept Jackson = s judicial

admission argument, nor the proposition that the zero was a reflection of the

academic merit of his paper rather than a disciplinary measure.

Since the zero was given as a disciplinary measure, the

substantive due process question is simply whether the government action was

arbitrary and capricious to the point of irrationality. Harrington v.

Harris , 118 F.3d 359, 368 (5th Cir. 1997). Giving a student a zero for

cheating on course work is not irrational. It is a logical punishment, often

handed down by teachers, for turning in work that is not one = s own, or for

helping another person turn in work that is not their own. It is rational in

that it gives no credit to a student who may not have done any work himself,

and it is rational in that it serves as a deterrent to keep students from

engaging in or repeating academic dishonesty. Jackson was not denied

substantive due process in his receipt of a zero for cheating.

Conclusion

Having found that Jackson failed to assert a cognizable procedural

due process claim and that his substantive due process claim has no merit, we

affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment

rendered and Opinion filed June 12, 2007.

Panel

consists of Chief Justice Hedges and Justices Fowler and Edelman.

[1] Vergie Mouton and Fernando Colon-Navarro are not

parties to this appeal.