## 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. 02-2199-2- 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 Plaint iffs-Appellees. Charlotte H. Hetherington (Andrew M. Sanchez with h er on the briefs) of Cuddy, Kennedy, Hetherington, Albetta & Ives, LLP, Santa F e, 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 ce rtain school officials appeal a district court decision denying their moti on 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 comp laint. One day, Mr. Joshua Butler borrowed his brother’s car and drove to his public high school. Mr.-3-

Butler parked the car in the faculty parking lot wi thout a permit. A school security guard noticed the vehicle did not have a p ermit 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 secur ity guard also found a handgun, ammunition, and drug paraphernalia. Mr. B utler denied knowing the items were in the car. The knife, gun, and ammunit ion belonged to Mr. Butler’s brother.
Initially, the principal of the high school suspend ed Mr. Butler. After a disciplinary hearing, a hearing officer concluded M r. Butler should be suspended for one year. Mr. Butler appealed the hearing offi cer’s decision to the school board. After a hearing, the school board upheld th e 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-4-

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 a lso requested, and the district court granted, a preliminary injunction allowing Mr . Butler to attend school and “participate in the commencement exercises and grad uation related social events.” The School appealed the court’s decision, but we di smissed it as moot because Mr. Butler had already “graduated from school and r eceived 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 t he 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 rec onsider its ruling that the School was not entitled to qualified immunity on th e Butlers’ substantive due process claims. The district court denied the moti on. The School appeals.

II. Discussion On appeal, the School argues the district court sho uld have granted its motion to dismiss based on qualified immunity becau se 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
. -5- Butler’s substantive due process rights. In the al ternative, the School argues Mr. Butler’s substantive due process rights were not cl early established. 1

We review the district court’s denial of a motion t o 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-plea ded allegations of the complaint as true and consider them “in the light m ost 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 h im 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 im munity 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-6-

doing so, we also consider the decisions of the hearing officer and the school board, in addition to the Butlers’ complaint, becau se the documents are “referred to in the complaint,” they are “central” to the But lers’ 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 “rathe r 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 estab lished 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 o f 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 v iolated Mr. Butler’s substantive due process right “to a free public edu cation” by suspending him for one year “without finding that he knowingly/intenti onally brought, carried or kept2The Butlers also claimed the School was “deliberate[ly] indifferen[t]” to

Mr. Butler’s substantive due process right “to a fr ee public education” for various reasons, but, given our conclusion below, these cla ims 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. Rodrigu ez , 411 U.S. 1, 35, 37, 40 (1973), the Supreme Court has no t decided whether a state created property right like the right to a public e ducation 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).
-7- 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 n ot rationally support the legitimate state interest in maintaining school saf ety and discipline.”
The Supreme Court has not clarified what type of in terest triggers substantive due process guarantees. 3 The case law in this circuit is also unclear. See, e.g., Jacobs, Visconsi & Jacobs, Co. v. City o f 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 cas e 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.4Although 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 w e conclude the School’s conduct does not violate the due process clause und er any of the standards.

5 Although the School’s policy does not expressly r equire knowledge, the policy does state it is to be “interpreted to confo rm 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). -8- “The Due Process Clause not only provides a procedu ral safeguard against deprivations of life, liberty, and property but als o protects substantive aspects of those interests from unconstitutional restrictions by government.” Harris v. Blake , 798 F.2d 419, 424 (10th Cir. 1986). Absent certa in factors not present here, we will uphold a school’s decision to suspenda student in the face of a substantive due process challenge if the decision i s not arbitrary, lacking a rational basis, or shocking to the conscience of fe deral 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 distri ct court’s decision, the School in this case did not suspend Mr. Butler for “unknowingly” bringing a knife onto school property. Although the hearing officerinitially found only that Mr. Butler possessed weapons on school property in viol ation of school policy, 5 the-9-

school board later concluded “[Mr.] Butler should h ave known, as the driver of the vehicle, that he was in possession of and trans porting a weapon onto school grounds.” This was because “the knife was in plainview 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 de cide 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 kno wingly possess any weapon, would not be rationally related to any legitimate s tate 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 pr operty 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 inter est in providing a safe environment for students and staff. It is not unre asonable for the School to-10-

conclude that student possession of weapons on scho ol 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 th e School to suspend Mr. Butler, even for one year, when he should have known he bro ught a weapon onto school property. The School’s decision was not arbitrary, nor does it shock the conscience. Accordingly, the decision did not viol ate Mr. Butler’s substantive due process rights, if any. Since the Butlers fail ed to state a substantive due process violation, we conclude the School is entitl ed 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 c osts and attorney’s fees is denied.