IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31249

BOBBY W SWINDLE, JR. and TRACY A SWINDLE, As Administrators of

the Estate of Morgan Taylor Swindle, 

Plaintiffs - Appellants

v.

LIVINGSTON PARISH SCHOOL BOARD; RANDY POPE, Superintendent of

Livingston Parish School Board; PAUL PASTOREK; LOUISIANA

DEPARTMENT OF EDUCATION; STATE BOARD OF ELEMENTARY AND

SECONDARY EDUCATION,

Defendants - Appellees

Appeal from the United States District Court 

for the Middle District of Louisiana

Before BENAVIDES, DENNIS, and ELROD, Circuit Judges.

DENNIS, Circuit Judge:

Plaintiffs, Bobby and Tracy Swindle, brought this action for damages

under 42 U.S.C. § 1983 on behalf of their minor daughter, Morgan Swindle, who

allegedly was deprived of her constitutional rights of procedural and substantive

due process and equal protection of the laws when she was expelled from public

school and refused alternative education benefits during the 2005-2006 academic

school year by Defendants—the Livingston Parish School Board (“LPSB”); its

Superintendent, Randy Pope; the Louisiana State Superintendent of Education;

United States Court of Appeals

Fifth Circuit

F I L E D

September 8, 2011

Lyle W. Cayce

Clerk

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the Louisiana Department of Education (“DOE”); and the Louisiana State Board

of Elementary and Secondary Education (“BESE”). Defendants moved for

summary judgment. Plaintiffs opposed that motion but did not file a crossmotion. The district court granted summary judgment in favor of Defendants

dismissing all of Plaintiffs’ claims. We AFFIRM the summary judgment in favor

of the State Superintendent of Education, sued in his official capacity, and the

DOE and the BESE, as they are entitled to state sovereign immunity from suit

for money damages in federal court. Further, we AFFIRM the summary

judgment dismissing Plaintiffs’ claims thatMorgan’s procedural and substantive

due process rights were violated in connection with her expulsion, the extension

of her term of expulsion, and her denial of readmission as a ninth grader for the

2006-2007 school year; and dismissing Plaintiffs’ claim that Morgan was denied

equal protection of the laws by being denied access to an alternative education

program that another student, expelled for the same reason as Morgan, was

provided. However, we REVERSE the summary judgment in favor of the LPSB

and Pope in respect to Plaintiffs’ procedural due process claim grounded on

Defendants’ denial, without proper notice and a fair hearing, of the Swindles’

request that Morgan continue her public education during her expulsion in an

alternative education program. This decision prematurely terminated Morgan’s

public education benefits for the 2005-2006 academic year and caused her to

reenter public school as a repeating eighth grader in 2006-2007. Accordingly, we

REMAND this case to the district court for further proceedings on Plaintiffs’

procedural due process claim with respect to the alleged denial of continued

public educational benefits in an alternative educational program during

Morgan’s expulsion. 

BACKGROUND

During the 2005-2006 academic year, Morgan was thirteen years old and

a student in the eighth grade at Doyle High School in Livingston Parish,

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Louisiana. In October 2005, Morgan attended an evening school event, a student

dance, on school property. At some point, Morgan and a small group of other

students exited the dance and left the school property. One of the other students

offered marijuana for the group to share in smoking. Morgan smoked the

substance with the other students while off school property and away from the

school dance event. The students then returned to the school property and the

dance under the effects of marijuana. However, there is no evidence that Morgan

possessed marijuana on school property or at the school dance event; and there

is no evidence that Morgan controlled or directed other students to possess

marijuana on school property or at the school dance event. 

The school principal, Tony Terry, learned of the students’ conduct and

decided to take disciplinary action. In respect to Morgan, he decided to

recommend that she be expelled for the remainder of the academic year. Under

Louisiana law, Terry could not expel a student. Instead, he was required to

recommend expulsion to the LPSB superintendent, who was then required to

make an independent determination of the ultimate punishment. See La. Rev.

Stat. Ann. § 17:416(C)(1). Therefore, in an undated letter to LPSB

administrators, Terry explained his recommendation, stating that Morgan had

admitted “to leaving [the] school function, smoking marijuana with other

students, and returning to [the] school function under the influence.” Further,

choosing from an authorized list of grounds for expulsion, he stated that

Morgan’s conduct justified expulsion for the rest of the academic year based

upon ground “21-Any Other Serious Offense.” In his letter, Terry did not give

any other ground supporting his recommendation.

On November 3, 2005, Terry wrote to Morgan’s parents, informing them

that “[i]t has been recommended to the Superintendent that your child be

expelled from school for the remainder of this school session.” As part of this

letter, Terry included a chart entitled “Reason(s) [for] Expulsion,” containing a

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list of possible grounds for expulsion. On that chart, Terry again indicated that

Morgan’s conduct justified expulsion based upon ground “21-Any Other Serious

Offense.” He did not select ground “7-Use/Possess Controlled Substance,” which

was also listed on the chart.1

On November 11, 2005, Morgan and her mother attended a hearing

conducted by an LPSB administrator, Paulette Foster, concerning Terry’s

recommendation. In light of Terry’s recommendation and the information

collected at the hearing, LPSB Superintendent Pope determined that Morgan

should be expelled for one calendar year, rather than for the rest of the academic

year, as recommended by Terry. On November 14, 2005, the Swindles were

provided written notice of this decision in the form of a letter from Pope to

Morgan’s parents. The letter stated that “violations of Livingston Parish Public

School policies, as well as local school rules pertaining to the conduct of a

student, are not acceptable” and informed the Swindles that they had a right to

 The chart on the letter appears as follows:

1

Reason(s) Expulsion

___ 01-Willful Disobedience

___ 02-Disrespect for Authority

___ 03-False Charge Against Authority

___ 04-Use of Profane/Obscene Lang

___ 05-Immoral or Vicious Practice

___ 06-Conduct Injurious to Other

___ 07-Use/Possess Controlled Substance

___ 08-Use/Possess Tobacco or Lighter

___ 09-Use/Possess Alcohol

___ 10-Disturbs School/Violates Rules

___ 11-Vandalism

___ 12-Writes/Draws Obscenities

___ 13-Possesses Weapon(s) (Fed. Law)

___ 14-Possesses Weapon(s)

___ 15-Throws Missiles

___ 16-Fighting

___ 17-Violates Traffic/Safety Rules

___ 18-Leaves Campus or Cuts Classes

___ 19-Habitually Tardy And/Or Absent

___ 20-Is Guilty of Stealing

 x 21-Any Other Serious Offense

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an administrative appeal. Pope’s letter did not specify any other ground for his

decision, make findings or render any decision in respect to Morgan’s right to

continued public education in an alternative education program or otherwise.2

The Swindles chose not to exercise their right to an administrative appeal, but

they did not waive or forfeit Morgan’s other rights, including her right to

continued public education in an alternative education program. See generally

Goss v. Lopez, 419 U.S. 565 (1975); La. Rev. Stat. § 17:416.2(A)(1).

According to a diary of events prepared by Morgan’s mother and

introduced in the district court summary judgment record, starting on November

9, 2005—before the LPSB’s hearing, but after it was clear that Morgan would

 That letter stated in full: 2

Dear Mr. and Mrs. Swindle: 

This is to advise that as a result of the hearing held for your child Morgan Taylor

Swindle at the Livingston Parish Public Schools Office on Friday, November

11, 2005 at 9:00 a.m., it is my decision, after reviewing the testimony presented, that

the expulsion of Morgan Taylor Swindle for twelve (12) calendar months is to

be upheld.

I regret having to make this decision; however, violations of Livingston Parish Public

School policies, as well as local school rules pertaining to the conduct of a student, are

not acceptable.

Morgan Taylor Swindle is not to return to the Doyle High School campus for any

reason nor is she to attend any school functions involving the Doyle High School for

the remainder of this expulsion.

Within five days after receipt of this letter, you may request in writing that this

decision be reviewed by the board members of Livingston Parish Schools.

Sincerely,

Randy K. Pope

Superintendent

Livingston Parish Public Schools

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face some disciplinary action—the Swindles requested that Morgan be provided

“alternative education” by the LPSB, if she were expelled. After Morgan’s

expulsion on November 14, 2005, the Swindles continued to request that Doyle

High School, Pope, the LPSB, and the DOE provide an alternative educational

program for Morgan. Their petitions were not granted. Furthermore, according

to the summary judgment record presented for our review, neither Pope nor any

other educational officer or entity provided the Swindles with prior notice that

Morgan would be refused access to an alternative education program during her

expulsion, and the Swindles were not afforded a hearing in connection with that

deprivation of continued public educational benefits for Morgan, either before or

after their requests were not granted.

Louisiana Revised Statutes §17:416.2(A)(1) provides: “Any student

suspended or expelled from school pursuant to the provisions of R.S. 17:416,”

subject to certain exceptions, “shall remain under the supervision of the

governing authority of the city, parish, or other local public school system taking

such action using alternative education programs for suspended and expelled

students approved by the State Board of Elementary and Secondary Education

. . . .” But “[a]ny city, parish, or other local school system unable to comply with

the provisions of Subsection A of this Section for economically justifiable reasons

as defined by the State Board of Elementary and Secondary Education may

apply to the board on a school year to school year basis for a waiver from the

requirements of these provisions.” La. Rev.Stat. Ann. § 17:416.2(B)(1). However,

effective with the 2008-2009 school year, such waivers are prohibited. La. Rev.

Stat. Ann. § 17:416.2(B)(3).

Pope and the other defendants acknowledge that at the time the Swindles

requested and were refused alternative education for Morgan, no “waiver had . . . 

been sought [by the LPSB] for that particular school year [2005-2006].” Pope Br.

8. They emphasize that the LPSB had obtained waivers from providing its

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students alternative education from 1995 to 2004. Nonetheless, according to a

letter from the LPSB to the BESE, it was not until March 10, 2006, almost four

months after the LPSB had terminated all public educational benefits for

Morgan, that the LPSB petitioned the DOE for a waiver of the LPSB’s obligation

to provide public school children alternative education for the 2005-2006 school

year. Insofar as the record discloses, before Defendants rejected the Swindles’

requests that Morgan receive alternative education, neither the LPSB, Pope, nor

the other defendants notified the Swindles or Morgan that the LPSB intended

to apply for such a waiver. Thus, the Swindles and Morgan were not given any

kind of notice, hearing or process in connection with the LPSB’s denial of public

education benefits to Morgan through an alternative education program or

otherwise.

Without access to continuing public educational benefits, the Swindles

endeavored to home-school Morgan for the rest of the 2005-2006 school year.

They then petitioned the LPSB to have Morgan readmitted to Doyle High School

at the start of the 2006-2007 school year. The LPSB and Pope agreed, but 3

required that Morgan reenter as an eighth grader and repeat her eighth grade

classwork, refusing to allow her readmission to the ninth grade along with her

former classmates.

“Plaintiffs then sought to have Morgan take the [Louisiana Education Assessment 3

Program (‘LEAP’)] test. The School Board initially refused to administer the test to Morgan.

Plaintiffs brought suit in the 21st Judicial District Court of Louisiana and received injunctive

relief mandating that Morgan be allowed to take the test. Morgan took the LEAP test and

passed, scoring at the achievement level of ‘mastery’ in English and ‘basic’ in Mathematics.

Despite Morgan’s scores on the LEAP and her home schooling, the LPSB declined to promote

Morgan to the ninth grade upon her return to Doyle High School. After further litigation in

state court, the school system was ordered to consider Morgan’s home school work and

determine whether Morgan should be advanced to the next grade. LPSB evaluated Morgan

and decided that she should not be advanced because she was 11 days short of the attendance

requirement and had failed the math portion of another placement test administered by the

School Board.” Swindle v. Livingston Parish Sch. Bd., No. 06-837-JJB, 2008 WL 5157727, at

*1 (M.D. La. Dec. 9, 2008) (unpublished) (footnotes omitted). 

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In June 2006, the Swindles filed suit in state court seeking injunctive

relief against Defendants related to Morgan’s readmission to Doyle High School.

B.W.S., Jr. v. Livingston Parish Sch. Bd., 960 So. 2d 997, 998 (La. Ct. App. 1st

Cir. 2007). On February 15, 2007, the Louisiana trial court denied the Swindles’

request for injunctive relief. Id. at 1001. Plaintiffs appealed from that judgment

to the Louisiana Court of Appeal for the First Circuit, but that court, on April 4,

2007, found that their case was moot, as “the remedy of allowing the child to

attend the ninth grade at this late date provides her with no relief as there are

[now] less than 65 days left in the school year.” Id. at 1002.

On October 30, 2006, Plaintiffs filed this federal suit for damages under

42 U.S.C. § 1983 on Morgan’s behalf in the United States District Court for the

Middle District of Louisiana. The Swindles alleged that Defendants violated

Morgan’s procedural and substantive due process rights and her right to equal

protection of the laws. In the district court, as part of their answers to the

complaint and motions for summary judgment, Defendants raised the defenses

of sovereign immunity, res judicata, and qualified immunity. 

The district court granted summary judgment for Defendants dismissing

all of Plaintiffs’ claims, concluding that Plaintiffs had failed to adduce evidence

on which a reasonable trier of fact could conclude that Defendants perpetrated

“any constitutional violations upon which a § 1983 claim could be based.”

Swindle v. Livingston Parish Sch. Bd., No. 06-837-JJB, 2008 WL 5157727, at *5

(M.D. La. Dec. 9, 2008) (unpublished). The district court did not reach any of the

affirmative defenses raised by Defendants. Plaintiffs timely appealed. 4

In a footnote, which Westlaw has not reprinted in full, the district court acknowledged 4

that the State Superintendent of Education, the Louisiana Department of Education, and the

State Board of Elementary and Secondary Education would likely be entitled to sovereign

immunity from suit and that Pope would likely be entitled to qualified immunity. However,

it rested its judgment on the basis that Plaintiffs had failed to establish their claims.

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STANDARD OF REVIEW

“In determining whether a district court properly granted summary

judgment, this Court must review the record under the same standards that

guided the district court.” Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir.

1992). “We must review the evidence, as well as the inferences that may be

drawn from the evidence, in the light most favorable to the party that opposed

the motion for summary judgment.” Id. “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). Summary judgment is required against a party who, “after

5

adequate time for discovery[,] . . . fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). Conversely, “[i]f the evidence would permit a reasonable trier

of fact to find for the non-moving party, then summary judgment should not be

granted.” Anaya v. Traylor Bros., Inc., 478 F.3d 251, 253 (5th Cir. 2007) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). 

DISCUSSION

Except for its dismissal of Plaintiffs’ procedural due process claim

regarding the denial of Morgan’s request for alternative education, we see no

error in the district court’s judgment. Moreover, Plaintiffs have waived all of

their other claims by failing to adequately brief and argue them on appeal.6

While this case was pending before this court, the text of Rule 56 changed. This

5

change was meant to “carr[y] forward the summary-judgment standard expressed in former

subdivision (c).” Fed. R. Civ. P. 56 advisory committee note (2010 Amendments). Thus, while

the district court’s decision and our decision rely on slightly different language, both represent

the same legal standard.

The Federal Rules of Appellate Procedure require an appellant to present in his brief 6

his “contentions and reasons for them, with citations to the authorities and parts of the record

on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). “A litigant’s failure to provide legal

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I. 

“Procedural due process imposes constraints on governmental decisions

which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning

of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v.

Eldridge, 424 U.S. 319, 332 (1976). Defendants do not contend that procedural

due process is totally inapplicable to terminations of a public school student’s

public education benefits. On the contrary, they and the district court recognize

that Louisiana’s statutes create a “property interest” protected by the Due

Process Clause of the Fourteenth Amendment in a public school child and her

parents receiving such benefits. Swindle, 2008 WL 5157727, at *2 (citing Goss

v. Lopez, 419 U.S. 565, 574 (1975)). They acknowledge that this protected

property interest cannot “be taken away for [the student’s] misconduct without

adherence to the minimum procedures required by th[e Due Process] Clause.”

Id. (quoting Goss, 419 U.S. at 574). The district court also recognized that the

state statutes “may potentially give rise to a property interest in alternative

education” and that “[i]f such a property interest does exist, then Morgan would

indeed be entitled to due process before being denied alternative education.” Id.

at *3.

Nevertheless, the district court concluded that Morgan had no protected

property interest in alternative educationbecause the state statute allows a local

school system to annually apply for and obtain from the BESE, “for economically

justifiable reasons,” a waiver of its obligation to provide alternate education. Id. 

(quoting La. Rev. Stat. Ann. § 17:416.2(B)(1)) (internal quotation marks

omitted). It had been the LPSB’s “pattern and practice” in previous school years

or factual analysis results in waiver.” Nw. Enters. Inc. v. City of Houston, 352 F.3d 162, 183

n.24 (5th Cir. 2003); see also Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir. 2007)

(stating that the court will not “consider issues that are not adequately briefed” in the

appellant’s brief, even if the appellant attempts to incorporate by reference arguments made

elsewhere).

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to obtain such a waiver. Id. Although the LPSB did not obtain a waiver for the

2005-2006 school year prior to Morgan’s expulsion on November 14, 2005 and

her parents’ request that she receive alternative education, the LPSB belatedly

obtained such a waiver for the 2005-2006 school year in April 2006. Thus, the

district court concluded that Morgan and her parents did not have a

constitutionally protected expectation in receiving alternative education in

Livingston Parish. Id. As for Plaintiffs’ arguments that the waiver could not

retroactively defeat Morgan’s property right to alternative education benefits

and that the waiver had been granted illegally, the district court declined to find

one way or another because “Plaintiffs cite no case law or statute for the

proposition that the Board’s waiver was illegally granted.” Id.

We cannot agree with the district court’s analysis in this respect. Morgan’s

constitutional claim that she was entitled to procedural due process before she

was refused access to alternative education is entirely distinct from and

collateral to her substantive claim of entitlement under state law to continued

education through an alternative education program. See Mathews v. Eldridge,

424 U.S. 319, 330-31 (1976). Morgan claims that she was entitled to predeprivation notice and some kind of hearing, before a possibly erroneous

termination of her right to alternative education caused her to lose her right to

education entirely for the 2005-2006 school year and suffer irreparable damage.

When we analyze her constitutional claim of procedural due process as a

separate entitlement to protect against the erroneous or wrongful deprivation

of her claim to continued public education, we conclude that she was entitled to

some kind of notice and hearing, either prior to or soon after she was deprived

of her right to continued education, and that in this case she was afforded

neither. Therefore, based upon the record before us, we conclude that neither

Pope nor the LPSB were entitled to summary judgment on this claim. 

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A.

In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court held that a

student has a property interest in continued receipt of an education when the

state creates a public school system and requires children to attend. The Court

explained that two Ohio statutes “direct[ed] local authorities to provide

education to all residents between five and 21 years of age, and a

compulsory-attendance law require[d] attendance for a school year of not less

than 32 weeks.” Id. at 573. Therefore, “on the basis of state law, appellees

plainly had legitimate claims of entitlement to a public education.” Id. Put

another way, although the state “may not be constitutionally obligated to

establish and maintain a public school system, [Ohio] has nevertheless done so

and has required its children to attend.” Id. at 574. The Court emphasized the

consequence of public education, calling it “‘perhaps the most important function

of state and local governments.’” Id. at 576 (quoting Brown v. Bd. of Educ., 347

U.S. 483, 493 (1954)). The Court determined that the state laws also created a

liberty interest in not being stigmatized by suspension. Id. at 574 (“The Due

Process Clause also forbids arbitrary deprivations of liberty. ‘Where a person’s

good name, reputation, honor, or integrity is at stake because of what the

government is doing to him,’ the minimal requirements of the Clause must be

satisfied.” (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). “The

Fourteenth Amendment, as now applied to the States, protects the citizen

against the State itself and all of its creatures—Boards of Education not

excepted.” Id. (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943))

(internal quotation marks omitted). 

This court has consistently held that a student who is removed from her

regular public school, but is given access to an alternative education program,

has not been denied her entitlement to public education. See Harris ex rel.

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

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v. San Marcos Consol. Indep. Sch. Dist., 111 F.3d 25, 26 (5th Cir. 1997). This

rule is consistent with Goss’s directive that, where state law creates an

entitlement to public education, it is a student’s “total exclusion from the

educational process for more than a trivial period” that constitutes a deprivation

of protected property and liberty interests subject to due process constraints.

Goss, 419 U.S. at 576 (emphasis added). Accordingly, we have explained that “a

student’s transfer [from her regular school] to an alternative education program

does not deny access to public education, and therefore does not violate the

Fourteenth Amendment interest.” Harris, 635 F.3d at 690 (emphasis added)

(citing Nevares, 111 F.3d at 26-27); Nevares, 111 F.3d at 26 (concluding that a

student removed from his regular school for disciplinary reasons and reassigned

to an alternative education program was “not . . . denied access to public

education, even temporarily”); see also Riggan v. Midland Indep. Sch. Dist., 86

F. Supp. 2d 647, 655 (W.D. Tex. 2007) (recognizing that “[t]he [Nevares] Court

found that a constitutional issue was not raised because the plaintiff was never

denied access to public education,” and that “[Nevares] reinforces the basic idea

that protected property rights are affected and due process protections are

required when the discipline imposed amounts to a deprivation of access to

education”). In other words, such a reassignment does not amount to a “total

exclusion from the educational process.” See Goss, 419 U.S. at 576; McCall v.

Bossier Parish Sch. Bd., 785 So. 2d 57, 66 (La. App. 2d Cir. 2001) (“[T]he

expulsions in this case . . . were made with an assignment to [an] alternative

school. Because this is not an expulsion in the traditional sense causing total

deprivation of education, the U.S. Fifth Circuit Court of Appeals has indicated

that no protected property interest is implicated for purposes of due process

analysis in a school’s expulsion and assignment of a student to an alternative

school.”) (citations omitted); Stafford Mun. Sch. Dist. v. L.P., 64 S.W.3d 559, 563

(Tex. App. 2001) (“[H]ere, as in Nevares, [a student reassigned to an alternative

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education program] was not excluded from the educational process . . . [and so]

the transfer . . . did not involve a property or liberty interest.”). It follows clearly

and inexorably from these decisions that when a child is denied the right to

alternative education provided her by state law, resulting in her “total exclusion

from the educational process[,] . . . [n]either the property interest in educational

benefits . . . denied nor the liberty interest in reputation, which is also

implicated, is so insubstantial that [such deprivation] may constitutionally be

imposed by any procedure the school chooses, no matter how arbitrary,” Goss,

419 U.S. at 576. 

Consistent with these cases, and contrary to the conclusion of the district

court, we conclude that Louisiana’s statutory scheme provided Morgan an

entitlement to receive alternative education during her expulsion, i.e., Morgan

had a property interest in continued alternative education of which she could not

be deprived without due process. The importance of public education to students

and the public, upon which the Supreme Court remarked in Goss, id., does not

cease upon a student’s suspension or expulsion. Recognizing this, Louisiana’s

statutes provide, as a general rule, that when a child is suspended or expelled,

she is not automatically deprived of all further public educational benefits.

Rather, in the main, the student “shall remain under the supervision of the

governing authority of the city, parish, or other local public school system taking

such action using alternative education programs . . . .” La. Rev. Stat. Ann.

§17:416.2(A)(1); see also McCall, 785 So. 2d at 58 n.1 (“An expulsion includes the

removal of the student from all regular school settings for a period of not less

than one school semester, during which time the school board shall place the

pupil in an alternative school.” (citing La. Rev. Stat. § 17:416(A)(2)(c))). Only

certain categories of expelled students are statutorily ineligible for such

programs, such that they may be excluded from public education altogether, La.

Rev. Stat. Ann. §§ 17:416.2(A)(1), 17:416(B) & (C)(2), and it has not been shown

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for purposes of summary judgment that Morgan falls within such a class of

expellees. The statutes also allow the school board to apply for a waiver from its 7

obligation to provide alternative education programs. See La. Rev. Stat. 

§ 17:416.2(B) (stating that “[a]ny . . . local school system unable to comply with

[§ 17:416.2(A)(1), the alternative education program requirements] for

economically justifiable reasons . . . may apply to the [BESE] on a school year to

school year basis for a waiver from the requirements . . .”). However, the statute

provides that a board may only do so on a “school year to school year” basis. Id.

Consequently, we believe that the LPSB’s failure to apply for and obtain such a

waiver prior to the start of the 2005-2006 school year raised reasonable

expectations that, in general, under state law, expelled students would continue

under the LPSB’s supervision and continue to receive alternative education

during that school year. It was not until March 2006—four months after Morgan

was expelled and the LPSB refused to provide Morgan alternative

education—that the LPSB applied for a waiver from the BESE. Accordingly,

when Morgan’s parents applied for her entry into an alternative education

program, she had such a right recognized and protected by state law. We see

nothing in Louisiana law that allows for the retrospective alteration or

deprivation of an expelled student’s right to alternative education, and we are

Defendants contend that Morgan’s misconduct places her in one of these exceptions, 7

viz., that she was a student expelled for possession of marijuana on school property or at a

school event, see La. Rev. Stat. Ann. § 17:416(C)(2)(b)(ii). However, the summary judgment

record does not indicate that Defendants have introduced any evidence demonstrating that

Morgan was ever charged with, or determined to be guilty of, such conduct, as defined under

Louisiana law. See State v. Proctor, 901 So. 2d 477, 482 (La. Ct. App. 5th Cir. 2005) (explaining

that “[m]ere presence in an area where drugs are found or mere association with the person

in actual possession does not constitute constructive possession”); McCall, 785 So. 2d at 59,

67 (concluding that “possession of a [controlled dangerous substance on school grounds] . . .

did not occur” when students “acknowledged they left school without authorization, smoked

what they believed was marijuana [and what the court assumed was a controlled dangerous

substance, of which they were under the influence] and immediately returned to school where

they were apprehended in a parking lot by a school official”).

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not persuaded that such action can be used to retroactively defeat or circumvent

a student’s right to due process when she is deprived of her state law right to

continued public alternative education. Therefore, because the Louisiana

statutes directed that a student such as Morgan be provided alternative

education, rather than excluded from public education entirely, we conclude that

she was entitled to the procedural protections provided by the Due Process

Clause before she could be deprived of alternative education.8

Our analysis is confirmed by the Supreme Court’s decision in Paul v.

Davis, 424 U.S. 693 (1976). There the Court explained:

It is apparent from our decisions that there exists a variety

of interests which are difficult of definition but are nevertheless

comprehended within the meaning of either “liberty” or “property”

as meant in the Due Process Clause. These interests attain this

constitutional status by virtue of the fact that they have been

initially recognized and protected by state law, and we have

repeatedly ruled that the procedural guarantees of the Fourteenth

Amendment apply whenever the State seeks to remove or

significantly alter that protected status. In Bell v. Burson, 402 U.S.

535 (1971), for example, the State by issuing drivers’ licenses

recognized in its citizens a right to operate a vehicle on the

highways of the State. The Court held that the State could not

withdraw this right without giving petitioner due process. In

Morrissey v. Brewer, 408 U.S. 471 (1972), the State afforded

To be clear, we do not hold that there is a generalized constitutional right to 8

alternative education programming for expelled students. As explained in Goss, “interests in

property [protected by the Due Process Clause] are normally ‘not created by the Constitution.

Rather, they are created and their dimensions are defined’ by an independent source such as

state statutes or rules entitling the citizen to certain benefits.” Goss, 419 U.S. at 572-73. We

merely reaffirm Goss’s conclusion that where, as “[h]ere, on the basis of state law, [a student]

plainly had [a] legitimate claim[] of entitlement to a public education . . . the State is

constrained to recognize [that entitlement] as a property interest which is protected by the

Due Process Clause and which may not be taken away . . . without adherence to the minimum

procedures required by that Clause.” Id. at 573-74. In this case, Louisiana law created and

defined the parameters of such a protected property interest by mandating that, subject to

certain narrow exceptions, local education authorities must provide students expelled from

their regular schools with public education in the form of alternative education programs,

rather than being relieved of the obligation to provide public education altogether. Under Goss,

this entitlement is protected by the requirements of due process. 

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parolees the right to remain at liberty as long as the conditions of

their parole were not violated. Before the State could alter the

status of a parolee because of alleged violations of these conditions,

we held that the Fourteenth Amendment’s guarantee of due process

of law required certain procedural safeguards.

In each of these cases, as a result of the state action

complained of, a right or status previously recognized by state law

was distinctly altered or extinguished. It was this alteration,

officially removing the interest from the recognition and protection

previously afforded by the State, which we found sufficient to invoke

the procedural guarantees contained in the Due Process Clause of

the Fourteenth Amendment.

Id. at 710-711 (footnote omitted). Just as in Bell and Morrissey, as a result of the

state action by the LPSB, Pope, and the BESE, a right or status previously

recognized by state law and vested in Morgan was distinctly altered or

extinguished. This alteration, officially removing Morgan’s interest from the

recognition and protection previously afforded by the state, was sufficient to

invoke the procedural guarantees contained in the Due Process Clause of the

Fourteenth Amendment.

B.

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

process is due.” Goss, 419 U.S. at 577 (quoting Morrissey v. Brewer, 408 U.S. at

481) (internal quotation marks omitted). “The student’s interest is to avoid

unfair or mistaken exclusion from the educational process, with all of its

unfortunate consequences.” Id. at 579. “Disciplinarians, although proceeding in

utmost good faith, frequently act on the reports and advice of others; and the

controlling facts and the nature of the conduct under challenge are often

disputed. The risk of error is not at all trivial . . . .” Id. at 580. On the other hand,

“[t]he difficulty is that our schools are vast and complex. Some modicum of

discipline and order is essential if the educational function is to be performed.”

Id. As a result, the court held that “[a]t the very minimum, . . . students facing

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suspension and the consequent interference with a protected property interest

must be given some kind of notice and afforded some kind of hearing.” Id. at 579.

The Court said that for a suspension of ten days or less, the student must be

provided “oral or written notice of the charges” and “an explanation of the

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

story.” Id. at 581. But the Court indicated that more formal proceedings might

be required in cases involving longer suspensions or expulsions. Id. at 584 (“We

should also make it clear that we have addressed ourselves solely to the short

suspension, not exceeding 10 days. Longer suspensions or expulsions for the

remainder of the school term, or permanently, may require more formal

procedures. Nor do we put aside the possibility that in unusual situations,

although involving only a short suspension, something more than the

rudimentary procedures will be required.”).

As the Court explained in Mathews, “[p]rocedural due process imposes

constraints on governmental decisions which deprive individuals of ‘liberty’ or

‘property’ interests[,] . . . ‘flexibl[y] . . . call[ing] for such procedural protections

as the particular situation demands.’” 424 U.S. at 332, 334 (quoting Morrissey,

408 U.S. at 481). “Accordingly, resolution of the issue whether the . . . procedures

provided here are constitutionally sufficient requires analysis of the

governmental and private interests that are affected.” Id. at 334 (citing Arnett

v. Kennedy, 416 U.S. 134, 167-68 (1974) (Powell, J., concurring in part); Goldberg

v. Kelly, 397 U.S. 254, 263-66 (1970); Cafeteria Workers v. McElroy, 367 U.S. 886,

895 (1961)). “More precisely, [the Court’s] prior decisions indicate that

identification of the specific dictates of due process generally requires

consideration of three distinct factors: First, the private interest that will be

affected by the official action; second, the risk of an erroneous deprivation of

such interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and finally, the Government’s

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interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirement would entail.”

Id. at 334-35 (citing Goldberg, 397 U.S. at 263-71). 

Here, the private interest—Morgan’s ability to continue her public

education, without the delay, damage and stigma of being forced to repeat the

eighth grade—is immense. As the Court stated in Goss and has continued to

reiterate, “‘[e]ducation is perhaps the most important function of state and local

governments.’” Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 499 (2003) (quoting

Brown, 347 U.S. at 493); New Jersey v. T.L.O., 469 U.S. 325, 353 (1985)

(Blackmun, J., concurring in the judgment) (same); Columbus Bd. of Educ. v.

Penick, 443 U.S. 449, 490 (1979) (Rehnquist, J., dissenting, joined by Powell, J.)

(same); Goss, 419 U.S. at 576 (same). Public education has also been described

as “a most vital civic institution for the preservation of a democratic system of

government.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 230 (1963)

(Brennan, J., concurring). Accordingly, the Court’s cases have “consistently

recognized the importance of education to the professional and personal

development of the individual.” City of Cincinnati v. Discovery Network, Inc., 507

U.S. 410, 437 (1992) (Blackmun, J., concurring) (citing Brown, 347 U.S. at 493).

Moreover, it cannot be denied that “[i]ncreasing global competition also has

made primary and secondary education economically [even] more important.”

United States v. Lopez, 514 U.S. 549, 621 (1995) (Breyer, J., dissenting, joined

by Stevens, Souter, and Ginsburg, JJ.). 

Further, as the Court also recognized in Goss, 419 U.S. at 580, and as the

facts of this case demonstrate, the risk of an erroneous deprivation through the

lack of procedures used by the LPSB is significant. Although the Swindles were

never provided notice or a hearing regarding why Morgan was denied alternative

education, in this appeal Defendants take the position that it was because

Morgan possessed drugs on school grounds or at a school event. Yet, the

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summary judgment evidence supports the opposite conclusion: Morgan was not

accused of or expelled for possession of marijuana on school property or at the

school event. Instead, she was accused of and expelled for “any other serious

offense.” Therefore, the facts of this case reveal that absent procedures to protect

against secret determinations and post hoc rationalizations, the opportunity for

error is great. See Freeman v. City of Dallas, 186 F.3d 601, 607 (5th Cir. 1999)

(“Non-disclosure by the government poses the risk of an erroneous deprivation

because it forecloses the individual from testing the accuracy of the government’s

evidence.”).

The probable value of even minimal procedural safeguards in this case is

clear and undisputable. Had the Swindles been provided any notice and an

opportunity to be heard regarding the denial of Morgan’s right to alternative

education, it appears likely that they could have demonstrated that Morgan did

not fall within the category of expellees disqualified for alternative education.

What is more, they could have disputed Pope’s erroneous claim that LPSB had

applied for or received from the BESE a waiver from the state law requirement

that it provide Morgan alternative education for the 2005-2006 school year. Had

this notice and some kind of a hearing occurred before, or at a reasonable time

after, the deprivation of her alternative education, Morgan might have avoided

most of the consequences of what appears on this record to have been a mistaken

decision. See Mathews, 424 U.S. at 331 (noting that pre-deprivation process is

particularly appropriate where “full relief cannot be obtained at a

postdeprivation hearing” (citing Reg’l Rail Reorganization Act Cases, 419 U.S.

102, 156 (1974)); see also Cuellar v. Tex. Emp’t Comm’n, 825 F.2d 930, 934 (5th

Cir. 1987) (noting the benefit provided by holding “‘some kind of a hearing’ [in

order to] ensur[e] an effective ‘initial check against mistaken decisions’” (quoting

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985))).

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Finally, providing the Swindles with a minimal notice and hearing

safeguard would not have adversely affected Defendants’ interests. See Mathews,

434 U.S. at 335. The cost of providing notice that explains the basis for the

denial, and some form of hearing before an administrator, is extraordinarily low.

We are speaking only of administrators performing their normal functions of

communicating with parents and students. Therefore, as in Goss, we conclude

that Morgan was, at a minimum, entitled to some kind of notice and hearing

before the LPSB deprived her of alternative education. See Goss, 419 U.S. at 579.

“The ultimate balance involves a determination as to when, under our

constitutional system, . . . procedures must be imposed upon administrative

action to assure fairness.” Mathews, 424 U.S. at 348. This case starkly

demonstrates that absent fair procedures, a student can be mistakenly denied

the right to public education for most of a school year and unnecessarily made

to repeat the same grade. On the record before us, Morgan was provided neither

due process notice nor an opportunity to be heard regarding the denial of her

right to alternative education. Therefore, it is clear that Pope and the LPSB are

not entitled to summary judgment on this claim. 

II.

As we can affirm summary judgment on any available ground, because we

have concluded that a reasonable trier of fact could find in Plaintiffs’ favor on

one claim, we now examine Defendants’ claimed defenses to suit.

A.

The State Superintendent of Education, sued in his official capacity, the

DOE and the BESE, argue that they are immune from the suit because they are

entitled to sovereign immunity. We agree. “[T]he Constitution does not provide

for federal jurisdiction over suits [for money damages] against nonconsenting

States.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000). Sovereign immunity

also extends to state officials sued in their official capacity for monetary relief.

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See id.; Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978) (“[O]fficialcapacity suits generally represent only anotherway of pleading an action against

an entity of which an officer is an agent . . . .”). At oral argument, Plaintiffs

disclaimed that they had any claims for equitable relief against the

Superintendent or the state agencies. They solely sought money damages for

past constitutional violations. Therefore, we must affirm the grant of summary

judgment in favor of those defendants on the basis that they are entitled to

sovereign immunity from suit.

B.

The LPSB argues that we should conclude that Plaintiffs’ claims against

it are barred by res judicata. It argues that the state trial court’s February 15,

2007 judgment represents a final judgment on the merits that has preclusive

effect against all claims not raised in that proceeding, including the claims

herein. We disagree. Res judicata requires that there have been a “prior action

[that] was concluded by a final judgment on the merits.” Test Masters Educ.

Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). We look to state law to

determine whether a prior state court judgment was final. See Blanchard 1986,

Ltd. v. Park Plantation, LLC, 553 F.3d 405, 407 n.8 (5th Cir. 2008). Louisiana

law provides that it would “be quite incongruous to declare an entire suit moot

and yet give [r]es judicata effect to a district court judgment in the moot

proceeding.” Randle v. Gallagher, 169 So. 2d 224, 226 (La. Ct. App. 4th Cir.

1964). Applying this principle, a Louisiana Court of Appeal held that a trial

court’s judgment, in a case in which a married plaintiff sought a separation and

obtained an alimony award, was not a final judgment that would have “[r]es

judicata effect” on subsequent alimony determinations. Id. While the original

case “was pending [before the state supreme court], defendant obtained a

divorce,” and thus the trial court’s alimony award became moot. Id. at 225.

Mootness rendered the original trial court judgment not a final judgment, even

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though the Louisiana Supreme Court had denied motions to dismiss that suit,

leaving intact “the judgment of the lower court,” including the alimony award.

Id. at 226; see also Randle v. Randle, 119 So. 2d 495 (La. 1960) (the Louisiana

Supreme Court decision); Randle v. Randle, 144 So. 2d 461 (La. Ct. App. 4th Cir.

1962) (the Louisiana Court of Appeal decision affirming the alimony award). 

The facts of Randle are analogous to what occurred in this case. The

February 15 judgment of the state trial court “denied [a] mandatory injunction”

that Plaintiffs sought against the LPSB. B.W.S., Jr. v. Livingston Parish Sch.

Bd., 960 So. 2d 997, 1001 (La. Ct. App. 1st Cir. 2007). Plaintiffs appealed that

judgment and the state appellate court denied the writ because “the remedy of

allowing the child to attend the ninth grade at this late date provides her with

no relief.” Id. at 1002. In other words, the case was held to be moot. Therefore,

under Louisiana law, the judgment of the trial court is not a final judgment that

has a preclusive effect against claims not raised in that proceeding. 

C.

Finally, Superintendent Pope re-urges his motion for qualified immunity,

which the district court did not specifically rule on in its opinion granting

summary judgment. To defeat a claim of qualified immunity, a plaintiff must

demonstrate both that the right the defendant was alleged to have violated was

“clearly established,” and that the defendant acted “unreasonably” in light of

that clearly established law. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir.

2010) (“Once an official pleads the defense, the burden then shifts to the

plaintiff, who must rebut the defense by establishing a genuine fact issue as to

whether the official’s allegedly wrongful conduct violated clearly established law.

. . . [In addition,] a plaintiff must allege facts sufficient to demonstrate that no

reasonable officer could have believed his actions were proper.”). “Whether an

asserted federal right was clearly established at a particular time, so that a

public official who allegedly violated the right has no qualified immunity from

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suit, presents a question of law, not one of ‘legal facts.’” Elder v. Holloway, 510

U.S. 510, 516 (1994) (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985); Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). “That question of law, like the generality

of such questions, must be resolved de novo on appeal.” Id. (citing Pierce v.

Underwood, 487 U.S. 552, 558 (1988)). “A court engaging in review of a qualified

immunity judgment should therefore use its ‘full knowledge of its own [and other

relevant] precedents.’” Id. (alteration in original) (quoting Davis v. Scherer, 468

U.S. 183, 192 n.9 (1984)). “The touchstone of th[e] inquiry” into whether an

official’s conduct was unreasonable in light of clearly established law “is whether

a reasonable person would have believed that his conduct conformed to the

constitutional standard in light of the information available to him.” Goodson v.

City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). In other words, we

perform an objective analysis of the reasonableness of the official’s conduct in

light of the circumstances and are forbidden from considering the official’s

“subjective state of mind.” Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457

(5th Cir. 2005). 

As we have already explained, it has been clear since Goss that when state

law directs local authorities to provide public education, a student’s “total

exclusion from the educational process” must be accompanied by the procedural

protections required by the Due Process Clause. E.g., Goss, 419 U.S. at 576. In

Nevares and Harris, this court made clear that no deprivation of the liberty and

property interests associated with public education occurs when a student is

removed from her regular school environment and transferred to an alternative

education program. Harris, 635 F.3d at 690; Nevares, 111 F.3d at 26. In a

disciplinary alternative education model like those in Nevares in Harris—and

like the Louisiana statutory scheme at issue here9—a student’s expulsion from

As explained above, only particular categories of expelled students can be denied 9

alternative education under Louisiana’s scheme. See La. Rev. Stat. Ann. §§ 17:416.2(A)(1),

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her regular school does not deny her access to the educational process, because

she continues to receive a public education in the form of alternative

programming. E.g., McCall, 785 So. 2d at 66 (In Louisiana, “expulsion[] . . . made

with an assignment to an alternative school . . . is not an expulsion in the

traditional sense causing total deprivation of education . . . .” (citing Nevares, 111

F.3d 25)). Under these decisions, a constitutionally relevant deprivation occurs

when an official denies a student access to alternative education to which she

has an entitlement based on state law; it is by that action that the official

“total[ly] exclud[es]” the student from public education, Goss, 419 U.S. at 576.

We conclude that these “precedents . . . placed . . . beyond debate,” Ashcroft v.

Al-Kidd, 131 S. Ct. 2074, 2083 (2011), the question of whether procedural due

process safeguards had to be complied with in connection with Pope’s refusal to

permit Morgan access to alternative education. 

With respect to the process due, this court held in Meyer v. Austin

Independent School District that it was clearly established that before students

could be deprived of their right to education they must be afforded the

opportunity “to tell their side of the story.” 161 F.3d 271, 275 (5th Cir. 1998).

“Reasonable public officials . . . could not differ on whether allowing the students

to tell their side of the story was required.” Id. “While [a principal] was free to

suspend the students after hearing their stories, Goss unambiguously required

him to allow them to present those stories, and if [the principal] did not do so,

he violated the students’ due process rights.” Id.; see also Tex. Faculty Ass’n v.

Univ. of Tex., 946 F.2d 379, 385-86 (5th Cir. 1991) (“In Goss, [419 U.S. at 583,]

the Court held that students are entitled to a due process hearing before being

suspended from school for nonacademic reasons because ‘effective notice and an

informal hearing . . . will provide a meaningful hedge against erroneous action.’”

17:416(B) & (C)(2).

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(omission in original)). The Louisiana statutes direct school boards both to

provide public education generally and, connected with that right, to provide

suspended and expelled students alternative education, unless a specific

statutory exception applies. The summary judgment record indicates that

Morgan fell within the class of people protected by both statutes. She was

provided no notice or hearing when her parents’ request that she receive

alternative education was not granted.

Pope implies that his conduct was objectively reasonable because he did

not know that the school system had failed to obtain a waiver from the BESE

relieving it of its obligation to provide alternative education in the 2005-2006

school year. What is at issue here, however, is not whether Pope was 10

reasonable in believing that to be the case. While Pope was free to deny the

Swindles’ petition for Morgan to receive alternative education after hearing the

Swindles’ story, Goss and its progeny unambiguously required him to allow them

to present their stories and their side of the case. See Meyer, 161 F.3d 271. If he

To the extent that Pope suggests that he also believed that Morgan’s alleged conduct 10

exempted the school board from its duty to provide her alternative education, see La. Rev. Stat.

Ann. § 17:416.2(A)(1), this belief was contrary to clear Louisiana law. See id. §

17:416(C)(2)(b)(ii); Proctor, 901 So. 2d 482; McCall, 785 So. 2d at 67. Moreover, the

reasonableness of this purported belief is irrelevant to our qualified immunity inquiry

regarding Plaintiffs’ procedural due process claim. Regardless of whether Pope correctly

thought that there was a basis for denying Morgan alternative education, he was still

obligated to give her notice and an opportunity to be heard. Here, Pope did not give Morgan

or her parents notice that Morgan was charged with an offense that could result in denial of

alternative education; rather, she was charged with “any other serious offense.” See Goss, 419

U.S. at 581 (“[D]ue process requires . . . 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 tell his side of the story. . . . [I]n being given an opportunity to

explain his version of the facts at this discussion, the student first must be told what he is

accused of doing and what the basis of the accusation is.”); Harris, 635 F.3d at 691 (“We must

first be clear as to the basis for [the student’s] suspension. . . . The truth of th[e] charges is not

the question in evaluating whether Goss has been satisfied. Instead, the issue is whether [the

student] was adequately informed of the specific charges from which the suspension derived,

and whether he was given ‘an opportunity to tell his side of the story.’” (quoting Goss, 419 U.S.

at 581)).

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did not do so, as the summary judgment record strongly indicates, then he

violated Morgan’s procedural due process rights. See id.

Accordingly, Pope is not entitled to summary judgment based on his claim

of qualified immunity, although he is still entitled to raise the defense of

qualified immunity at trial.

CONCLUSION

For these reasons, we AFFIRM the district court’s summary judgment in

principal part, but we REVERSE the summary judgment in respect to Plaintiffs’

claims that Morgan was deprived of her constitutional right to procedural due

process when Defendants denied her right under state law to continued public

educational benefits through an alternative education program without some

kind of notice and some kind of hearing. We REMAND the case to the district

court for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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