James v. Cleveland School Dist

Case: 21-60688 Document: 00516436515 Page: 1 Date Filed: 08/17/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 17, 2022

No. 21-60688

Lyle W. Cayce

Clerk

Olecia James,

Plaintiff—Appellant,

versus

The Cleveland School District; Dr. Lisa Bramuchi, in her

individual and official capacity; Dr. Randy Grierson, in his individual

and official capacity; Dr. Jacqueline Thigpen, in her individual and

official capacity; Richard Boggs, in his individual and official capacity;

Todd Fuller, in his individual and official capacity; Dr. Chresteen

Seals, in her individual and official capacity; Tonya Short, in her

individual and official capacity; George Evans, in his individual and

official capacity,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:19-CV-66

Before Smith, Duncan, and Oldham, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Olecia James was a model student with reason to hope she would

graduate second in her high school class. But, as the result of a longstanding

desegregation decree, her high school was consolidated with another school

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No. 21-60688

before her senior year. This reshuffled the class rankings, and James ended

up third. She sued school officials, alleging she had been denied due process

of law under the Fourteenth Amendment. The district court correctly

dismissed her claims. James alleges only a property interest, but she has no

such interest in her class ranking or in the points awarded for her courses.

This defeats both her procedural and substantive due process claims.

That James did not end up class salutatorian may seem unfair. It was

surely disappointing. But it was not unconstitutional.

We affirm the district court’s judgment.

I.

Based on a fifty-year-old desegregation consent decree, a federal judge

ordered the consolidation of Cleveland, Mississippi’s two high schools—

East Side High School (“ESHS”) and Cleveland High School (“CHS”). See

Cowan v. Bolivar Cnty. Bd. of Educ., 186 F. Supp. 3d 564, 621 (N.D. Miss.

2016); Cowan v. Bolivar Cnty. Bd. of Educ., No. 2:65-CV-31 (N.D. Miss. July

22, 1969). Olecia James, a displaced rising senior at ESHS, enrolled in the

newly opened Cleveland Central High School (“CCHS”). James was by any

metric a model student. She played basketball, participated in mock trial, and

was elected homecoming queen. She also excelled academically, contending

for valedictorian and salutatorian. But the consolidation made the race tighter

than usual, with more students now vying for fewer honors.

To complicate matters, the consolidated high schools had both failed,

at times, to follow the Cleveland School District’s handbook when awarding

course credit and quality points for the preceding three years. The handbook

designated each course as “regular” (4 points), “accelerated” (5 points), or

“advanced” (6 points) based on the course’s rigor. Due to slipups in a

handful of courses, CCHS seniors with identical grades in identical courses

had received different quality points on their transcripts. That error bled over

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into the class ranking, where even a minor quality point discrepancy

reshuffled the rank and, ultimately, who would receive graduation honors.

Weeks before graduation, Superintendent Jacqueline Thigpen and

Assistant Superintendent Lisa Bramuchi diagnosed the problem and, in the

interest of fairness, set out to align all transcripts with the handbook

retrospectively. CCHS counselors independently reviewed each senior’s

transcript and flagged any errors. The District then altered the transcripts

(including James’s) to match the handbook and distributed the updated

transcripts to CCHS seniors, who could dispute any discrepancies.

James and her family were understandably caught off guard by her

altered quality point average. The next day, they met with Thigpen, who

vowed to restore James’s quality points, though her transcript would be

inconsistent with the handbook. James and her family also met with CCHS

Principal Randy Grierson and appeared at the regular school board meeting

to complain about the unfairness of last-minute transcript changes. After the

meetings, James received an updated transcript, which credited her with the

quality points her family had requested.

Two days later, Thigpen backtracked again after meeting with another

disgruntled parent. This time her decision was final: all CCHS seniors would

receive the same credit and weight for identical courses, consistent with the

handbook. James’s transcript was again altered. Thigpen deemed it the

fairest outcome for a bad situation. The District printed the updated

transcripts and distributed them to all CCHS seniors.

Once teachers finalized spring grades, Principal Grierson announced

the final class rankings. K.B., a black female from ESHS, graduated

valedictorian. W.M., a white male from CHS, ranked second. James, a black

female, finished third. James contested her rank, but Thigpen and Bramuchi

claimed they could not alter the course weights against the handbook.

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James sued Bramuchi, Thigpen, Grierson, the District, and the school

board members under 42 U.S.C. § 1983, alleging a conspiracy to strip her of

salutatorian honors in violation of Mississippi law as well as her federal due-

process and equal-protection rights. Invoking qualified immunity, the

defendants moved for summary judgment, which the district court granted

in their favor. James v. Cleveland Sch. Dist., No. 4:19-CV-66-DMB-RP, 2021

WL 3277239, at *1 (N.D. Miss. July 30, 2021). The court found no

constitutional violation, reasoning in a meticulous opinion that James

produced no evidence that she was deprived of quality points (due process),

nor that the calculation had any discriminatory effect or purpose (equal

protection). Id. at *13–22. James timely appealed, preserving only her

procedural and substantive due process claims against school officials

Thigpen, Bramuchi, and Grierson.

II.

We review summary judgments de novo. Patel v. Tex. Tech Univ., 941

F.3d 743, 747 (5th Cir. 2019); Fed. R. Civ. P. 56(a). Because the officials

invoked qualified immunity, James bore the burden “to show that the

defense is not available, though we still draw all inferences in [her] favor.”

Wilson v. City of Bastrop, 26 F.4th 709, 712 (5th Cir. 2022) (cleaned up).

Government officials merit qualified immunity unless (1) they “violated a

statutory or constitutional right of the plaintiff” and (2) “the right was

clearly established at the time of the violation.” Dyer v. Houston, 964 F.3d

374, 380 (5th Cir. 2020) (citation omitted).

III.

James contends the school officials violated her rights under the Due

Process Clause of the Fourteenth Amendment, which provides that “[n]o

State shall . . . deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1. Her due process claims

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come in two varieties—“procedural” and “substantive”—which we

address separately. See generally United States v. Salerno, 481 U.S. 739, 746

(1987) (distinguishing the two concepts) (citations omitted).

A.

First, the procedural variety. A procedural due process claim turns on

“‘(1) whether there exists a liberty or property interest which has been

interfered with by the State,’ and (2) ‘whether the procedures attendant

upon that deprivation were constitutionally sufficient.’” Richardson v. Tex.

Sec’y of State, 978 F.3d 220, 228–29 (5th Cir. 2020) (quoting Ky. Dep’t of

Corr. v. Thompson, 490 U.S. 454, 460 (1989)). Without a cognizable interest

in liberty or property, “there is nothing subject to Due Process protections

and our inquiry ends.” Hampton Co. Nat. Sur., LLC v. Tunica County, 543

F.3d 221, 225 (5th Cir. 2008) (citation omitted). James claims only a property

interest. Namely, she asserts an interest in “continued receipt of an

education pursuant to the rules adopted by the school board as well as the

laws the Mississippi Legislature adopted to govern public schools in this

state.” 1

The district court assumed James had a cognizable property interest.

Specifically, the court assumed James alleged a property interest in two

“aspect[s]” of her public education—rules on class rankings and rules

assigning quality points to specific courses, both contained in the school’s

curriculum guide for James’s graduating year. Based on those assumptions,

the court engaged in a detailed analysis and found James had not been

1

To the extent James claims a protected interest based on the District’s altering

other students’ transcripts, she can have no property interest in the benefit or punishment

of a third party. See Planned Parenthood of Greater Tex. Fam. Plan. & Preventative Health

Servs., Inc. v. Kauffman, 981 F.3d 347, 356–57 (5th Cir. 2020) (citing O’Bannon v. Town Ct.

Nursing Ctr., 447 U.S. 773, 785 (1980)).

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deprived of either interest because the school calculated her rank and quality

points correctly. While we respect the court’s meticulous analysis (and see

no reason to doubt its correctness), the court’s threshold assumption that

James had a cognizable property interest was unwarranted.

“[W]hether a state-created property interest ‘rises to the level’ of a

constitutionally-protected interest is a matter of federal constitutional law.”

Wigginton v. Jones, 964 F.3d 329, 336 (5th Cir. 2020) (quoting Town of Castle

Rock v. Gonzales, 545 U.S. 748, 757 (2005)). By establishing a compulsory

school system, a state creates a property interest in “entitlement to a public

education . . . protected by the Due Process Clause.” Goss v. Lopez, 419 U.S.

565, 574 (1975). Accordingly, a student may not be expelled or suspended

from a public school “without adherence to the minimum procedures

required by that Clause.” Id. at 574. Applying Goss, our cases have explained

that due process is triggered only by “a student’s ‘total exclusion from the

educational process.’” Swindle v. Livingston Par. Sch. Bd., 655 F.3d 386, 401

(5th Cir. 2011) (quoting Goss, 419 U.S. at 576). Thus, a student must receive

due process before being denied state-guaranteed access to an alternative

education, ibid., or before being suspended from school for ten days, Harris

ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011);

see also Nevares v. San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26 (5th

Cir. 1997) (“The Supreme Court has held that the suspension from school

without some kind of notice and hearing may violate property and liberty

interests.” (citing Goss, 419 U.S. 565)).

Our precedents are equally clear, however, that students lack “any

protected interest in the separate components of the educational process.”

Nevares, 111 F.3d at 27. This means “no protected property interest is

implicated” when a school declines to offer a student “a particular

curriculum” or denies “participation in interscholastic athletics.” Ibid.

(citing Arundar v. DeKalb Cnty. Sch. Dist., 620 F.2d 493 (5th Cir. 1980);

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Walsh v. La. High Sch. Athletic Ass’n, 616 F.2d 152 (5th Cir. 1980)); see also

Niles v. Univ. Interscholastic League, 715 F.2d 1027, 1031 (5th Cir. 1983) (“A

student’s interest in participating in interscholastic athletics falls ‘outside the

protections of due process.’” (quoting Mitchell v. La. High Sch. Athletic

Ass’n, 430 F.2d 1155, 1158 (5th Cir. 1970))). And we have favorably cited

sister circuit precedent holding that students lack due process interests in

“particular incidents of education such as sports or advanced placement

classes or attending a particular school.” Nevares, 111 F.3d at 27 (citing

Seamons v. Snow, 84 F.3d 1226, 1234–1235 (10th Cir. 1996)). 2

It follows that students lack due process interests in their class rank or

in the quality points assigned to their courses. Indeed, we have already stated

this principle in a previous (albeit unpublished) opinion rejecting a challenge

to the same District’s policies for choosing valedictorians: “While students

have a property interest in receiving a state-provided public education, there

is no free-standing right to class honors.” Shepard v. Cleveland Sch. Dist., 822

F. App’x 312, 313 (5th Cir. 2020) (per curiam) (citing Goss, 419 U.S. 565). 3

2

In light of that, we respectfully disagree with the district court that a student may

have a property interest in “an aspect of her public education (rather than the education as

a whole).” For that proposition, the court relied on our unpublished decision in Shepard,

but as we explain below, Shepard does not support it. See Shepard v. Cleveland Sch. Dist.,

822 F. App’x 312 (5th Cir. 2020) (per curiam). But even if it did, published decisions from

our court reject the notion that a student has a property interest in “incidents” or

“components” of his or her public education. See Nevares, 111 F.3d at 27 (collecting cases).

In any event, our cases are also clear that a student’s property interest consists only in not

being “totally excluded” from a state-created right to public education. See Swindle, 655

F.3d at 401; see also Goss, 419 U.S. at 576.

3

James makes no colorable attempt to link her putative interests to any state-

created right. For instance, she points to a statute affording “the superintendent of

schools” the “power[], authority, and dut[y] . . . [t]o enforce . . . the courses of study

provided by law or the rules and regulations of the State Board of Education.” Miss.

Code Ann. § 37-9-14(2). This statute says nothing about class rank or quality points. It

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Said another way: a student’s not being chosen salutatorian or not getting

specific course points is not the “total exclusion from the educational

process,” Swindle, 655 F.3d at 401, that would trigger due process

safeguards.

That is a relief. It would be a fool’s errand to try to write federal due

process rules governing how schools should award honors or how many

quality points an Algebra II class should get. Federal judges have no business

constitutionalizing such matters. “If [we] wanted to do that, [we] would have

run for school board.” Oliver v. Arnold, 19 F.4th 843, 862 (5th Cir. 2021)

(Duncan, J., dissenting from denial of rehearing en banc). Our late colleague

Judge Tom Reavley summed this point up perfectly:

We recognize the importance of trust and confidence between

students and school administrators. For that reason the student

and parents must be treated fairly and given the opportunity to

explain [their views]. But that is for [the State] and the local

schools to do. We would not aid matters by relegating the

dispute to federal litigation. And because the United States

Constitution has not been offended in the present dispute, we

retire from it.

Nevares, 111 F.3d at 27.

does not even apply to one of the school officials (Principal Grierson). Even as to a

superintendent, the statute leaves her discretion over how to “enforce . . . courses of

study,” ibid., which means the statute cannot create a property interest. See, e.g., Town of

Castle Rock, 545 U.S. at 756 (“[A] benefit is not a protected entitlement if government

officials may grant or deny it in their discretion.”); Baldwin v. Daniels, 250 F.3d 943, 946

(5th Cir. 2001) (“Discretionary statutes do not give rise to constitutionally protectable

interests.”). Finally, James fails to identify any mandatory state “rules” or “regulations”

pertaining to class rank or course points.

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B.

Second, James also frames her claim under “substantive” due

process. The Supreme Court recently clarified how to assess this kind of

claim. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). The

“liberty” protected by the Due Process Clause of the Fourteenth

Amendment, the Court explained, includes “two categories of substantive

rights[:]” (1) “rights guaranteed by the first eight Amendments” and (2) “a

select list of fundamental rights that are not mentioned anywhere in the

Constitution.” Id. at 2246. Under either category, a right must be “deeply

rooted in [our] history and tradition” and must be “essential to our Nation’s

‘scheme of ordered liberty.’” Ibid. (quoting Timbs v. Indiana, 139 S. Ct. 682,

686 (2019); McDonald v. Chicago, 561 U.S. 742, 764, 767 (2010); Washington

v. Glucksberg, 521 U.S. 702, 721 (1997)).

James’s claim immediately runs aground, however, because she

alleges only a property interest and not a liberty interest. As already

explained, James has no cognizable property interest in the components of

her public education. Under our precedent, this lack of a property interest

dooms her substantive due process claim by definition. See Edionwe v. Bailey,

860 F.3d 287, 292 (5th Cir. 2017) (“The first inquiry in every due process

challenge—whether procedural or substantive—is whether the plaintiff has

been deprived of a protected interest in property or liberty.”); Mahone v.

Addicks Utility Dist. Of Harris Cnty., 836 F.2d 921, 929 n.8 (5th Cir. 1998)

(“Since no liberty interest is alleged here, and since [Appellant’s] allegations

of a property interest are inadequate, both [Appellant’s] procedural due

process and substantive due process claims must fail.”).

Despite the shortcomings of James’s theories, we underscore that

civil rights laws continue to offer a remedy to students who may be unjustly

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stripped of academic or athletic honors by way of discrimination. 4 But James

has concededly abandoned any such claim in this case.

IV.

The district court’s judgment is AFFIRMED.

4

See, e.g., Intervenor-Plaintiffs’ Mem. in Support of Mot. to Intervene, Tennessee

v. U.S. Dep’t of Educ., No. 3:21-CV-308, 2021 WL 8314850 (E.D. Tenn. Oct. 4, 2021)

(seeking to intervene on behalf of female athletes to challenge DOJ Title IX guidance and

arguing “allowing males to compete in women’s sports takes away female roster spots and

reduces their limited chances of receiving college scholarships”); see also Tennessee v. U.S.

Dep’t of Educ., No. 3:21-CV-308, 2022 WL 2791450 (E.D. Tenn. July 15, 2022) (granting

plaintiffs’ motion for preliminary injunction); Hornstine v. Township of Moorestown, 263 F.

Supp. 2d 887, 904 (D.N.J. 2003) (declining to dismiss ADA discrimination claim when a

special needs senior alleged stripping of valedictorian honors based on his disability).

10