IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10009

RAJIN PATEL, 

 Plaintiff - Appellant

v.

TEXAS TECH UNIVERSITY; DUANE JONES, Individually and in his 

Official Capacity as Adjunct Professor; WILLIAM PASEWARK, Individually 

and in his Official Capacity as Texas Tech University Rawls College of 

Business Associate Dean of Graduate Programs and Research; ROBERT 

RICKETTS, Individually and in his Official Capacity as Area Coordinator in 

Accounting; BRITTANY TODD, Individually and in her Individual Capacity 

as Associate Director of the Office of Student Conduct, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas 

Before KING, HIGGINSON, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

Rajin Patel appeals the district court’s order granting defendants’ motion 

for summary judgment and dismissing his complaint. We affirm. 

I. 

Patel, a graduate student at Texas Tech University, sued the university

and several of its officers and agents (collectively, “Defendants”) asserting

substantive due process and equal protection claims in connection with the 

United States Court of Appeals

Fifth Circuit

FILED

October 23, 2019

Lyle W. Cayce

Clerk

 Case: 19-10009 Document: 00515171167 Page: 1 Date Filed: 10/23/2019
No. 19-10009

2

university’s evaluation of allegations that Patel cheated on an exam. The story 

begins with a business law final exam administered by Defendant Duane 

Jones. While grading the exam, Jones noted distinct similarities between 

Patel’s answers and answers from a test bank, indicating Patel may have

cheated. Jones reported Patel to the Office of Student Conduct (“OSC”). In 

turn, OSC—led by then-associate director Defendant Brittany Todd—

conducted an internal investigation that resulted in a report adverse to Patel.

OSC then convened a panel that heard evidence from Patel, Jones, and OSC. 

The panel found Patel responsible for plagiarism and cheating and assessed 

financial and academic penalties. The panel’s determination was based on the 

similarities between the test bank answers and Patel’s test answers. Texas 

Tech denied Patel’s internal appeal.

Patel then sued Texas Tech and all individually named Defendants in 

their official and individual capacities. He asserted claims under 42 U.S.C. 

§ 1983 for substantive due process and equal protection violations, as well as 

a breach of contract claim against Texas Tech. Defendants1 filed motions to 

strike Patel’s expert reports and a motion for summary judgment. While it 

denied the motions to strike, the district court declined to consider the expert 

reports when ruling on summary judgment because the reports were unsworn. 

Finding no genuine issue of material fact as to Patel’s claims, the district court 

granted Defendants’ motion for summary judgment and dismissed his 

complaint. Patel appeals the district court’s failure to consider his expert 

reports as well as the summary judgment dismissing his substantive due 

process and equal protection claims.2

 

1 The court dismissed Patel’s individual-capacity claims against certain defendants on 

qualified immunity grounds. Those rulings are not before us. 

2 Patel voluntarily dismissed his breach of contract claim before the district court’s 

summary judgment ruling.

 Case: 19-10009 Document: 00515171167 Page: 2 Date Filed: 10/23/2019
No. 19-10009

3

II. 

We first address whether the district court erred in refusing to consider 

Patel’s unsworn expert reports when ruling on summary judgment. We review 

a district court’s evidentiary rulings that determine the summary judgment 

record for abuse of discretion. Maurer v. Independence Town, 870 F.3d 380, 383 

(5th Cir. 2017). Although that standard is deferential, an “erroneous view of the 

law” satisfies it. Id. at 384 (citation omitted).

The expert reports at issue come from Dr. Robert Coyle and Dr. Alan 

Perlman. Dr. Coyle’s report opines that Patel has a learning disability that 

requires him to study by rote memorization. Dr. Perlman’s report applies

linguistic theory to conclude that the similarities between Patel’s answers and 

the test bank answers are insufficient to show Patel cheated. Although the 

district court declined to consider the expert reports because they were 

unsworn, it made no finding that the opinions expressed in the reports could 

not be placed in admissible form.

In discounting the reports, the district court mistakenly relied on a prior 

version of Federal Rule of Civil Procedure 56 and cases applying it. See Lee v. 

Offshore Logistical and Transport, L.L.C., 859 F.3d 353, 354 (5th Cir. 2017) (“In 

2010, Rule 56 was amended to clarify and streamline the procedures regarding

summary judgment motions and to make clear the process for supporting 

assertions of fact and objecting thereto.”). New Rule 56(c), added in 2010, 

permits a party to support or dispute summary judgment through unsworn 

declarations, provided their contents can be presented in admissible form at 

trial. “Although the substance or content of the evidence submitted to support 

or dispute a fact on summary judgment must be admissible . . ., the material 

may be presented in a form that would not, in itself, be admissible at trial.” Id.

at 355 (quoting 11 Moore’s Federal Practice–Civil ¶ 56.91 (2017)); see also, e.g.,

Maurer, 870 F.3d at 384 (“At the summary judgment stage, evidence need not 

 Case: 19-10009 Document: 00515171167 Page: 3 Date Filed: 10/23/2019
No. 19-10009

4

be authenticated or otherwise presented in an admissible form.”) (citations 

omitted). The district court declined to consider Patel’s two reports solely 

because they were unsworn, without considering whether those opinions were 

“capable of being presented in a form that would be admissible in evidence.” Id.

(quoting LSR Consulting, L.L.C. v. Wells Fargo Bank, NZ, 835 F.3d 530, 534 

(5th Cir. 2016)) (cleaned up). This contravened the new summary judgment rule 

and was therefore an abuse of discretion. Consequently, we will consider Patel’s 

expert reports in determining whether Defendants were entitled to summary 

judgment. See Maurer, 870 F.3d at 385 (because the district court mistakenly 

excluded evidence under the new summary judgment rule, “[w]e will 

. . . consider the [excluded evidence] in determining whether the [movant] was 

entitled to summary judgment”); Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 

667–68 (5th Cir. 1999) (after first reviewing evidentiary rulings, “[t]hen, with 

the record defined, we must review de novo the order granting judgment as a 

matter of law”) (citations omitted). 

III. 

We now turn to Patel’s contention that the district court erred in 

granting Defendants summary judgment. We review a summary judgment de 

novo. Ezell v. Kan. City S. Ry. Co., 866 F.3d 294, 297 (5th Cir. 2017). Summary 

judgment is appropriate only “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). A fact is “material” if, under the applicable 

substantive law, “its resolution could affect the outcome of the action.” Sierra 

Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 

2010) (citation omitted).

Patel’s claims are, in essence, that the university’s evaluation of the 

cheating allegations violated his substantive due process and equal protection 

rights. In opposing summary judgment, Patel points to evidence—including the 

 Case: 19-10009 Document: 00515171167 Page: 4 Date Filed: 10/23/2019
No. 19-10009

5

two expert reports—purporting to show that, contrary to the OSC panel’s 

determination, he did not cheat or plagiarize during the final exam. This 

misapprehends the gravamen of claims concerning allegedly unconstitutional 

academic decisions, such as the one at issue here. “When judges are asked to 

review the substance of a genuinely academic decision, . . . they should show 

great respect for the faculty’s professional judgment.” Regents of Univ. of Mich. 

v. Ewing, 474 U.S. 214, 225 (1985). “Plainly, they may not override [an academic 

decision] unless it is such a substantial departure from accepted academic 

norms as to demonstrate that the person or committee responsible did not 

actually exercise professional judgment.” Id. “Courts must accept, as consistent 

with due process, an academic decision that is not beyond the pale of reasoned 

academic decision-making when viewed against the background of the student’s 

entire career.” Wheeler v. Miller, 168 F.3d 241, 250 (5th Cir. 1999). This 

exceedingly narrow scope for judicial review of academic decisions applies to 

both due process and equal protection claims. See id. at 252.3

With respect to his substantive due process claim, Patel fails to identify 

any summary judgment evidence raising a genuine fact issue that Defendants 

“did not actually exercise professional judgment” in resolving the cheating 

allegations, Ewing, 474 U.S. at 225, or that the result of the process was 

“beyond the pale of reasoned academic decision-making,” Wheeler, 168 F.3d at 

250. Instead Patel merely asserts, for example, that Jones failed to exercise 

 

3 The Sixth Circuit recently addressed a similar scenario where a student contested 

his dismissal from medical school for cheating on an exam. See Endres v. N.E. Ohio Med. 

Univ., 938 F.3d 281 (6th Cir. 2019). Endres does not conflict with our decision here. That case

involved a “procedural due process” claim that the student was not afforded adequate 

procedural safeguards before dismissal, id. at 297, not the “substantive due process” claim 

Patel asserts. We also note that the Sixth Circuit distinguishes the process constitutionally 

required for “academic” versus “disciplinary” decisions. See id. (explaining that dismissal for 

“disciplinary misconduct” demands “more robust process” than dismissal for “academic 

underperformance”). Our circuit has not had occasion to address this distinction in the 

context of procedural due process claims. In any event, it has no bearing on this case.

 Case: 19-10009 Document: 00515171167 Page: 5 Date Filed: 10/23/2019
No. 19-10009

6

professional judgment by reporting him for cheating and that Todd and the 

panel failed to adequately investigate the allegations against him. These 

conclusory allegations cannot create a genuine fact issue sufficient to defeat 

summary judgment. See, e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075 

(5th Cir. 1994). The record is devoid of evidence even suggesting that any 

Defendants acted unreasonably in reporting, investigating, or resolving the 

allegations against Patel. To the contrary, the record reflects that Defendants 

followed protocol in reporting and investigating the allegations and that the 

result of the process was supported by evidence. In response to this, Patel only 

offers evidence suggesting, at most, it may have been reasonable for the 

university to conclude that he did not in fact plagiarize or cheat. Again, this 

misses the point: the applicable constitutional standard asks not whether Patel 

in fact cheated but instead whether the decisionmaker “did not actually 

exercise professional judgment” in reaching its decision. Ewing, 474 U.S. at 

225. We thus conclude that Patel’s substantive due process claim was properly 

dismissed on summary judgment. 

Patel likewise fails to demonstrate a genuine issue of material fact as to 

his equal protection claim. He alleges that Jones only reported Patel even 

though Jones received an anonymous report that two other unnamed students 

may have cheated. This “class of one” equal protection claim requires Patel to 

show that “(1) he . . . was intentionally treated differently from others similarly 

situated and (2) there was no rational basis for the difference in treatment.” 

Lindquist v. City of Pasadena Tex., 669 F.3d 225, 233 (5th Cir. 2012); see also 

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Patel points to no 

summary judgment evidence creating a genuine fact issue as to either prong. 

That is, nothing in the record suggests that Patel was intentionally treated in 

a manner irrationally different from other similarly situated students. See

Ewing, 474 U.S. at 228 n. 14 (even when student identifies possible academic 

 Case: 19-10009 Document: 00515171167 Page: 6 Date Filed: 10/23/2019
No. 19-10009

7

comparators through statistical evidence, courts “are not in a position to say” 

those students were “similarly situated” for purposes of challenging academic 

decisions). We therefore conclude the district court properly granted summary 

judgment dismissing Patel’s equal protection claim.

AFFIRMED 

 Case: 19-10009 Document: 00515171167 Page: 7 Date Filed: 10/23/2019