*This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of Tenth Cir. 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 New 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 parties’ request for

a decision on the briefs without oral argument. See Fed. R. App.
- 2 -

P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Appellants, Veltran Trujillo, Sr. and Gloria Trujillo, appeal

the district court’s Order granting summary judgment, in part, in

favor of appellees and dismissing their state law claims without

prejudice.

Facts

Appellants filed this action for declaratory relief,

injunctive relief, and damages as next of friends and guardians of

their son, Veltran Trujillo, Jr. (Trujillo), based on alleged

violations of Trujillo’s constitutional rights, laws of the United

States, breach of contract, and prima facie tort. Appellants’

claims arose out of the circumstances surrounding the permanent

expulsion of Trujillo from Taos Municipal Schools by appellee,

Ruben R. Quintana (Quintana), Principal of Taos Junior High School.

The undisputed facts are as follows. 

In November, 1993, Trujillo was enrolled in the seventh grade

at Taos Junior High School. On November 15, 1993, Trujillo carried

a .22 caliber pistol to school. When confronted by school

officials, Trujillo admitted that he had a gun in his physical

education locker and turned it over to them. 

On November 17, 1993, Assistant Principal Irene Hern (Hern)

sent a notice of hearing to Trujillo’s parents, appellants. The

notice of hearing indicated that Trujillo had violated the “weapons
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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 Brief in Chief at

263).

At the hearing, appellants were informed that Trujillo was

being “suspended or expelled from Taos Municipal Schools.” Shortly

thereafter, Gloria Trujillo visited Quintana and asked how long

Trujillo was expelled. Quintana responded that Trujillo was

expelled for the remainder of the school year and advised her to

enroll him in the Questa or Penasco public schools. On December

17, 1993, a written decision was mailed to appellants in which

Quintana upheld the recommendation of Hern and expelled Trujillo

from Taos Municipal Schools.

On February 4, 1994, Trujillo, by letter and through counsel,

requested that Quintana advise him of the exact period of his

expulsion. On March 10, 1994, Trujillo again wrote Quintana and

requested a “Grievance Hearing.” A grievance hearing was set for

April 14, 1994. At the hearing, Quintana refused to reconsider

Trujillo’s expulsion and advised appellants to see Superintendent

Aragon if they were unsatisfied with his decision.

On April 20, 1994, Trujillo requested Superintendent Aragon

reconsider his expulsion. Superintendent Aragon responded by

letter of April 26, 1994, that he would notify appellants of the

time and date for a meeting as soon as he met with the appropriate
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staff and reviewed the case. No meeting was ever scheduled or

held.

Thereafter, appellants initiated this action. Appellees moved

for summary judgment on the grounds that they are entitled to

qualified immunity, appellants were provided due process, and

appellants failed to exhaust their post-deprivation administrative

remedies. Appellants moved for summary judgment on their 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 process and equal

protection claims and dismissed without prejudice appellants state

law breach of contract and tort claims.

Discussion

On appeal, appellants contend that the district court erred in

granting appellees’ motion for summary judgment and denying their

motion for summary judgment. Appellants assert that appellees are

not entitled to qualified immunity and that Trujillo was not

afforded procedural or substantive due process.

We review a district court’s grant or denial of summary

judgment de novo. 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 to 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 material dispute of

fact, we determine if the substantive law was correctly 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 constitutional right to

notice and opportunity to be heard in regard to expulsion from

public school. Thus, [appellants’] allegations of insufficient

notice and improper hearing procedures withstand [appellees’] claim

of qualified immunity.” (Plaintiff-Appellant’s Corrected Brief in

Chief at 277). However, the court concluded that since there are

no cases establishing a constitutional right to appeal, appellees

were entitled to qualified immunity on appellants’ claim of a

violation of their right to appeal Trujillo’s expulsion. Id.

In analyzing appellants’ procedural due process claims, the

district court concluded that appellants “had sufficient notice of

serious consequences stemming from having a gun in school,” id. at

279; although failure to notify a parent of the possible

punishments is not a violation of due process, appellants’ had

adequate notice of the possible penalty in the written 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 and appellants were
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afforded this opportunity, id. at 281; although a written decision

containing the findings of fact to support the expulsion is not

required by due process, appellants received a written decision

which clearly stated the circumstances and the decision, id.;

appellants failed to provide any evidence to support the allegation

that Trujillo was denied a fair and impartial hearing, id. at 282;

and Quintana had ample authority to expel Trujillo. Id.

Finally, the district court recognized that the right 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 is certainly

rationally related to the vital state interest in providing a safe

environment conducive to learning, protecting students and staff,

and maintaining discipline in public schools.” Id. at 283. We

agree.

We affirm substantially for the reasons set forth in 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