F I L E D

United States Court of Appeals

Tenth Circuit

AUG 25 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN BUTLER, as parent and next friend of

Joshua Butler, a Minor; MARY BUTLER, as parent

and next friend of Joshua Butler, a Minor, 

Plaintiffs-Appellees,

v.

RIO RANCHO PUBLIC SCHOOLS BOARD OF

EDUCATION, local public governing body of the

State of New Mexico; SUE CLEVELAND; GARY

TRIPP; SALLY MARQUEZ, individuals; GERARD

HYATT; GEORGE DOE, in their individual and

official capacities,

Defendants-Appellants,

CITY OF RIO RANCHO, a local public governing

body of the State of New Mexico; RUSS APGAR,

Officer, in his individual and official capacity,

Defendant.

--------------------------------

NATIONAL SCHOOL BOARDS ASSOCIATION;

NEW MEXICO SCHOOL BOARDS ASSOCIATION;

COLORADO ASSOCIATION OF SCHOOL

BOARDS; OKLAHOMA STATE SCHOOL BOARDS

ASSOCIATION; UTAH SCHOOL BOARDS

ASSOCIATION; WYOMING SCHOOL BOARDS

ASSOCIATION,

Amici Curiae.

No. 02-2199
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Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-01-466-M/WWD)

Joan M. Waters, Albuquerque, New Mexico, for Plaintiffs-Appellees.

Charlotte H. Hetherington (Andrew M. Sanchez with her on the briefs) of Cuddy,

Kennedy, Hetherington, Albetta & Ives, LLP, Santa Fe, New Mexico, for

Defendants-Appellants.

Julie K. Underwood and Thomas E.M. Hutton, National School Boards

Association, Alexandria, Virginia, filed a brief on behalf of Amici Curiae.

Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,

Circuit Judge.

BRORBY, Senior Circuit Judge.

Rio Rancho Public Schools Board of Education and certain school officials

appeal a district court decision denying their motion to dismiss based on qualified

immunity. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse. See

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

I. Background

The following facts are alleged in the amended complaint. One day, Mr.

Joshua Butler borrowed his brother’s car and drove to his public high school. Mr.
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Butler parked the car in the faculty parking lot without a permit. A school

security guard noticed the vehicle did not have a permit and ran a registration

check. The registration check revealed the vehicle belonged to Mr. Butler’s

brother.

During this time, the security guard “observed the butt end of a knife

sticking up from between the passenger seat and the center console.” He

contacted Mr. Butler and had him open the vehicle. The security guard found a

“sheathed hunting knife” in the vehicle. The security guard also found a

handgun, ammunition, and drug paraphernalia. Mr. Butler denied knowing the

items were in the car. The knife, gun, and ammunition belonged to Mr. Butler’s

brother.

Initially, the principal of the high school suspended Mr. Butler. After a

disciplinary hearing, a hearing officer concluded Mr. Butler should be suspended

for one year. Mr. Butler appealed the hearing officer’s decision to the school

board. After a hearing, the school board upheld the hearing officer’s decision.

Mr. Butler’s parents sued on his behalf the school board and various school

officials, among others, (collectively the “School”) in the United States District
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Court for the District of New Mexico pursuant to 42 U.S.C. §§ 1983, 1985. In

relevant part, the Butlers claimed the School violated Mr. Butler’s substantive due

process right “to a free public education.” They also requested, and the district

court granted, a preliminary injunction allowing Mr. Butler to attend school and

“participate in the commencement exercises and graduation related social events.”

The School appealed the court’s decision, but we dismissed it as moot because

Mr. Butler had already “graduated from school and received his diploma.” Butler

v. Rio Rancho Pub. Sch. Dist., 2002 WL 863141, at *1 (10th Cir. May 7, 2002).

The School subsequently filed a motion to dismiss the Butlers’ complaint,

arguing the complaint failed to state a claim and the School was entitled to

qualified immunity. The district court granted the motion on several claims but

denied it on the Butlers’ substantive due process and supplemental state law

claims. The School moved the district court to reconsider its ruling that the

School was not entitled to qualified immunity on the Butlers’ substantive due

process claims. The district court denied the motion. The School appeals.

II. Discussion

On appeal, the School argues the district court should have granted its

motion to dismiss based on qualified immunity because it did not violate Mr.
1

 Both parties argue cases involving criminal statutes support their

respective positions. We do not find either party’s analogies to scienter in the

criminal context helpful or persuasive in this case.

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Butler’s substantive due process rights. In the alternative, the School argues Mr.

Butler’s substantive due process rights were not clearly established.1

We review the district court’s denial of a motion to dismiss based on

qualified immunity de novo. See Currier v. Doran, 242 F.3d 905, 911 (10th Cir.),

cert. denied, 534 U.S. 1019 (2001); Tonkovich v. Kansas Bd. of Regents, 159 F.3d

504, 516 (10th Cir. 1998). We accept all well-pleaded allegations of the

complaint as true and consider them “in the light most favorable to the

nonmoving party.” Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226,

1236 (10th Cir. 1999); see also Currier, 242 F.3d at 911. We will not dismiss a

complaint “‘unless it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.’” Currier, 242

F.3d at 917 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

Since the School raised the defense of qualified immunity in its motion to

dismiss, we first examine whether the Butlers asserted a violation of federal law

in their complaint. See Currier, 242 F.3d at 917; Tonkovich, 159 F.3d at 516. In
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doing so, we also consider the decisions of the hearing officer and the school

board, in addition to the Butlers’ complaint, because the documents are “referred

to in the complaint,” they are “central” to the Butlers’ claims, and “the parties do

not dispute the documents’ authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d

936, 941 (10th Cir.), cert. denied, 123 S. Ct. 623 (2002). We determine the legal

effect of these decisions by their own terms “rather than by [the] allegations in

the complaint.” Id.

If we conclude the Butlers properly alleged a violation of federal law, we

next “determine whether the [law] was clearly established such that a reasonable

person in the [School’s] position would have known that his or her conduct

violated [the law].” Tonkovich, 159 F.3d at 516. See also Currier, 242 F.3d at

923. If the Butlers failed to assert a violation of federal law, we need not pursue

this second inquiry. See Tonkovich, 159 F.3d at 516 n.6.

The Butlers alleged in their complaint the School violated Mr. Butler’s

substantive due process right “to a free public education” by suspending him for

one year “without finding that he knowingly/intentionally brought, carried or kept
2

 The Butlers also claimed the School was “deliberate[ly] indifferen[t]” to

Mr. Butler’s substantive due process right “to a free public education” for various

reasons, but, given our conclusion below, these claims necessarily fail.

3

 While the Supreme Court has made clear the right to a public education is

not a fundamental right, see, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411

U.S. 1, 35, 37, 40 (1973), the Supreme Court has not decided whether a state

created property right like the right to a public education triggers substantive due

process guarantees, see, e.g., Regents of Univ. of Michigan v. Ewing, 474 U.S.

214, 222-23 (1985); Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S.

78, 91-92 (1978).

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a weapon or firearm on school grounds.”2 The district court, without reviewing

the decisions of the hearing officer or the school board, concluded the Butlers

alleged a due process violation because “suspending a student for unknowingly

transporting a weapon onto the school campus does not rationally support the

legitimate state interest in maintaining school safety and discipline.”

The Supreme Court has not clarified what type of interest triggers

substantive due process guarantees.3

 The case law in this circuit is also unclear. 

See, e.g., Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111,

1119 (10th Cir. 1991) (citing cases). Nevertheless, we see no need to decide

whether Mr. Butler has such an interest in this case because, even assuming his

interest in a public education triggers substantive due process guarantees, we

conclude the Butlers failed to state a substantive due process violation.
4

 Although we questioned in Tonkovich whether the “shock the conscience”

standard applies to all due process violations, see Tonkovich, 159 F.3d at 528-29,

we need not decide the issue in this case because we conclude the School’s

conduct does not violate the due process clause under any of the standards.

5

 Although the School’s policy does not expressly require knowledge, the

policy does state it is to be “interpreted to conform to provisions of applicable

law,” and the New Mexico statute pursuant to which the School enacted the policy

requires knowledge. See N.M. Stat. Ann. § 22-5-4.7 (1995).

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“The Due Process Clause not only provides a procedural safeguard against

deprivations of life, liberty, and property but also protects substantive aspects of

those interests from unconstitutional restrictions by government.” Harris v.

Blake, 798 F.2d 419, 424 (10th Cir. 1986). Absent certain factors not present

here, we will uphold a school’s decision to suspend a student in the face of a

substantive due process challenge if the decision is not arbitrary, lacking a

rational basis, or shocking to the conscience of federal judges.4 See Tonkovich,

159 F.3d at 528; Curtis v. Oklahoma City Pub. Sch. Bd. of Educ., 147 F.3d 1200,

1215 (10th Cir. 1998); Abeyta v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253,

1256 (10th Cir. 1996).

Contrary to the Butlers’ allegations and the district court’s decision, the

School in this case did not suspend Mr. Butler for “unknowingly” bringing a knife

onto school property. Although the hearing officer initially found only that Mr.

Butler possessed weapons on school property in violation of school policy,5 the
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school board later concluded “[Mr.] Butler should have known, as the driver of

the vehicle, that he was in possession of and transporting a weapon onto school

grounds.” This was because “the knife was in plain view and readily identifiable

as a knife to persons standing outside the vehicle looking in.” The board also

concluded “[Mr.] Butler knew, or should have known that he was responsible for

the vehicle he brought onto school property and the contents thereof.”

As a result of the board’s decision, we need not decide whether suspending

a high school student for “unknowingly” bringing a weapon onto school property

violates the student’s substantive due process rights. See Seal v. Morgan, 229

F.3d 567, 575 (6th Cir. 2000) (stating “suspending or expelling a student for

weapons possession, even if the student did not knowingly possess any weapon,

would not be rationally related to any legitimate state interest”). Instead, we need

only decide whether a school’s decision to suspend a student when he “should

have known” he was bringing a weapon onto school property violates the

student’s substantive due process right, if any, to a public education. We

conclude it does not.

There is no doubt the School has a legitimate interest in providing a safe

environment for students and staff. It is not unreasonable for the School to
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conclude that student possession of weapons on school property threatens this

interest. In order to protect against this threat and further the School’s interest in

safety, we believe there is a rational basis for the School to suspend Mr. Butler,

even for one year, when he should have known he brought a weapon onto school

property. The School’s decision was not arbitrary, nor does it shock the

conscience. Accordingly, the decision did not violate Mr. Butler’s substantive

due process rights, if any. Since the Butlers failed to state a substantive due

process violation, we conclude the School is entitled to qualified immunity on the

Butlers’ substantive due process claims.

III. Conclusion

For the reasons discussed above, we REVERSE the district court’s order

denying the School’s motion to dismiss the Butlers’ substantive due process

claims and REMAND to the district court. The Butlers’ request for costs and

attorney’s fees is denied.