* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. R. 36.3. UNITED STATES COURT OF APPEALS Filed 7/1/96 FOR THE TENTH CIRCUIT

______ VELTRAN TRUJILLO, SR.; GLORIA TRUJILLO ) as next of friends and guardians of ) their minor child VELTRAN TRUJILLO, JR.,) ) Plaintiffs-Appellants, ) ) v. ) No. 95-2192 ) (D.C. No. CIV-94-1350) TAOS MUNICIPAL SCHOOLS, a New Mexico ) (Dist. of Ne w Mexico) School District; HAROLD BREEN; JOE ) MCGINNIS; IGNACIO PERALTA; BOB ROMERO, ) individually and as members of the Taos ) Municipal School Board; JUAN ARAGON, ) individually and in his capacity as ) Superintendent of Taos Municipal ) Schools; RUBEN R. QUINTANA, individually) and in his capacity as Principal of ) Taos Junior High School; IRENE HERN, ) individually and in her capacity as ) the Assistant Principal of Taos Junior ) High School; BOARD OF EDUCATION, Taos ) Municipal Schools, ) ) Defendants-Appellees. )

______ ORDER AND JUDGMENT *

______ Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______ After examining the briefs and the appellate record , this panel has determined unanimously to honor the parti es’ request for a decision on the briefs without oral argument. Se eFed. R. App.- 2 -

P. 34(f); 10th Cir. R. 34.1.9. The case is therefo re ordered submitted without oral argument. Appellants, Veltran Trujillo, Sr. and Gloria Trujil lo, appeal the district court’s Order granting summary judgmen t, in part, in favor of appellees and dismissing their state law c laims without prejudice.
Facts Appellants filed this action for declaratory relief , injunctive relief, and damages as next of friends a nd guardians of their son, Veltran Trujillo, Jr. (Trujillo), based on alleged violations of Trujillo’s constitutional rights, law s of the United States, breach of contract, and prima facie tort. Appellants’ claims arose out of the circumstances surrounding t he permanent expulsion of Trujillo from Taos Municipal Schools b y appellee, Ruben R. Quintana (Quintana), Principal of Taos Jun ior High School. The undisputed facts are as follows. In November, 1993, Trujillo was enrolled in the sev enth grade at Taos Junior High School. On November 15, 1993, Trujillo carried a .22 caliber pistol to school. When confronted byschool officials, Trujillo admitted that he had a gun in h is physical education locker and turned it over to them. On November 17, 1993, Assistant Principal Irene Her n (Hern) sent a notice of hearing to Trujillo’s parents, app ellants. The notice of hearing indicated that Trujillo had viola ted the “weapons- 3 -

policy” by “carrying a gun on campus” and that the purpose of the hearing was “[t]o determine if student shall . . . [b]e recommended for expulsion.” (Plaintiff-Appellant’s Corrected B rief in Chief at 263). At the hearing, appellants were informed that Truji llo was being “suspended or expelled from Taos Municipal Sc hools.” Shortly thereafter, Gloria Trujillo visited Quintana and as ked how long Trujillo was expelled. Quintana responded that Tru jillo was expelled for the remainder of the school year and a dvised her to enroll him in the Questa or Penasco public schools. On December 17, 1993, a written decision was mailed to appellan ts in which Quintana upheld the recommendation of Hern and expe lled Trujillo from Taos Municipal Schools. On February 4, 1994, Trujillo, by letter and throug h counsel, requested that Quintana advise him of the exact per iod of his expulsion. On March 10, 1994, Trujillo again wrote Quintana and requested a “Grievance Hearing.” A grievance heari ng was set for April 14, 1994. At the hearing, Quintana refused t o reconsider Trujillo’s expulsion and advised appellants to see Superintendent Aragon if they were unsatisfied with his decision. On April 20, 1994, Trujillo requested Superintenden t Aragon reconsider his expulsion. Superintendent Aragon re sponded by letter of April 26, 1994, that he would notify appe llants of the time and date for a meeting as soon as he met with the appropriate- 4 -

staff and reviewed the case. No meeting was ever s cheduled or
held. Thereafter, appellants initiated this action. Appe llees moved for summary judgment on the grounds that they are e ntitled to qualified immunity, appellants were provided due pr ocess, and appellants failed to exhaust their post-deprivationadministrative remedies. Appellants moved for summary judgment ontheir claims of violation of their right to procedural due process, equal protection, and breach of contract. On August 10, 1995, the district court granted summary judgment in favor of appellees on appellants’ due p rocess and equal protection claims and dismissed without prejudice a ppellants state law breach of contract and tort claims. Discussion On appeal, appellants contend that the district cou rt erred in granting appellees’ motion for summary judgment anddenying their motion for summary judgment. Appellants assert tha t appellees are not entitled to qualified immunity and that Trujill o was not afforded procedural or substantive due process. We review a district court’s grant or denial of summary judgment denovo . Lancaster v. Air Line Pilots Ass’n Int’l , 76 F.3d 1509, 1516 (10th Cir. 1996). We apply the same legal standard used by the district court and examine the record t o determine if any genuine issue of material fact was in dispute. Purrington v.- 5 -

University of Utah , 996 F.2d 1025, 1028 (10th Cir. 1993) (citing Applied Genetics Int’l Inc. v. First Affiliated Sec . Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990)). If there is no mater ial dispute of fact, we determine if the substantive law was corre ctly applied. Purrington , 76 F.3d at 1516. In its order, the district court concluded that “[t ]he law is clearly established . . . as to a student’s constit utional right to notice and opportunity to be heard in regard to exp ulsion from public school. Thus, [appellants’] allegations of insufficient notice and improper hearing procedures withstand [a ppellees’] claim of qualified immunity.” (Plaintiff-Appellant’s Cor rected Brief in Chief at 277). However, the court concluded that s ince there are no cases establishing a constitutional right to app eal, appellees were entitled to qualified immunity on appellants’ claim of a violation of their right to appeal Trujillo’s expul sion. Id

. In analyzing appellants’ procedural due process cla ims, the district court concluded that appellants “had suffi cient notice of serious consequences stemming from having a gun in school,” id . at 279; although failure to notify a parent of the pos sible punishments is not a violation of due process, appe llants’ had adequate notice of the possible penalty in the writ ten notice of charges, id . at 279-80; in light of an admission of guilt, a hearing is required only to determine proper punishment and allow the student to present mitigating circumstances andappellants were- 6 -

afforded this opportunity, id . at 281; although a written decision containing the findings of fact to support the expu lsion is not required by due process, appellants received a writ ten decision which clearly stated the circumstances and the deci sion, id .; appellants failed to provide any evidence to suppor t the allegation that Trujillo was denied a fair and impartial heari ng, id . at 282; and Quintana had ample authority to expel Trujillo. Id
. Finally, the district court recognized that the rig ht to a public education, although a constitutional right, was not a fundamental right. Therefore, the court concluded that appellants’ substantive due process and equal protection claims failed because “expelling a student for carrying a gun to school i s certainly rationally related to the vital state interest in p roviding a safe environment conducive to learning, protecting stude nts and staff, and maintaining discipline in public schools.” Id . at 283. We
agree. We affirm substantially for the reasons set forth i n the district court’s Order of August 10, 1995.
AFFIRMED. The mandate shall issue forthwith.

Entered for the Court:

James E. Barrett, Senior United States Circuit Judge