* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50794

TONIYA PARKER; RUSSELL KAUITZSCH; TINA LIVINGSTON,

Plaintiffs-Appellants,

v.

THELMA DUFFEY; JOHN J. BECK; MICHAEL BOONE; CHRISTOPHER

BROWN; STAN CARPENTER; COLLEEN CONNOLLY; LINDA HOMEYER;

STELLA KERL; JOLYNNE REYNOLDS; ERIC SCHMIDT; TEXAS STATE

UNIVERSITY; VINCENT MORTON,

Defendants-Appellees.

Appeal from the United States District Court 

for the Western District of Texas

1:04-CV-315

Before GARWOOD, JOLLY, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants appeal the district court’s grant of summary

judgment in favor of Defendants-Appellees. Finding no error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

During the 2002-03 academic year, Plaintiffs-Appellants Toniya Parker,

Russell Kauitzsch, and Tina Livingston were graduate students enrolled in the

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2007

Charles R. Fulbruge III

Clerk
No. 06-50794

1 Livingston graduated from the program during the Spring of 2003.

2

Professional Counseling, Marriage, andFamilyTherapyProgram at Texas State

University (“University”).1 They also served as officers for two universityaffiliated organizations, the Counseling Association of Southwest Texas

(“CAST”) and an honor society, Chi Sigma Iota (“CSI”). Defendant-Appellee

Thelma Duffey served as the faculty advisor to both organizations. In order for

funds from the bank accounts of those two organizations to be accessed, one of

the officers and Duffey had to approve and sign a “Request for Club Account

Payout” form.

In March 2003, Parker, Kauitzsch, and Livingston approached Duffey

about attending a conference in California hosted by the American Counseling

Association. Although Duffey told them they could attend, she informed them

that the CAST chapter at the University could not fund the trip. The students

informed Duffey that they had acquired private funding for the trip, but since

that money would not be collected until after the conference, they requested a

$1,500 advance from the CAST account to temporarily cover their expenses.

Duffey signed the form authorizing their use of the CAST funds.

In July 2003, Duffey, while reviewing the CAST and CSI bank accounts,

discovered that additional payout forms had been submitted, even though none

of the students had presented her with any “Request for Club Account Payout”

forms to sign. She requested that Dr. Michael Boone, then Acting Chair of the

Educational Administration Psychology Services Department, meet with the

three students and discuss her suspicions that they had forged her signature and

stolen money from the CAST and CSI accounts. Boone and Duffey met with

Parker and Kauitzsch twice during the month of July; Livingston did not attend

either meeting as she had already graduated and could not take time off work.

During these meetings, Duffey accused the students of mishandling the CAST
No. 06-50794

3

and CSI funds. The students, in response, presented receipts for all

expenditures and argued that Duffey had allowed them to withdraw expenses

from the account even when she had not personally signed the forms. Duffey

denied those assertions.

Parker and Kauitzsch then met with Dean Vincent Morton, the

Coordinator of Student Justice, which was the forum responsible for addressing

university-wide violations of student conduct and adjudicating disciplinary

actions. Since Livingston was no longer enrolled, Student Justice commenced

no actions against her. At their initial meeting, Parker and Kauitzcsh orally

requested that Morton provide them with a copy oftheir files and all information

pertinent to his investigation. They allege that they never received these

materials until after the instigation of litigation. Morton met with Parker and

Kauitzcsh twice, and after reviewing all the materials submitted both by the

students and the University, he concluded thatthey had violated the University

Code of Student Conduct. On August 27, 2003, both Parker and Kauitzsch

signed a form agreeing to waive a disciplinary hearing and accept a penalty of

one year of disciplinary probation and restitution of $1,936 to the CAST bank

account. The students claim that Dean Morton assured them that signing the

disciplinary form would appease the faculty.

However, soon thereafter, Dr. Stella Kerl, an associate professor in the

students’ department, scheduled a meeting between each student and a Faculty

Review Committee (“FRC”) to determine whether the students satisfied the

requisite ethical standards needed to continue in the counseling graduate

program. Parker and Kauitzsch each met with a FRC on September 8, 2003.

After the meetings, both FRCs concluded that Parker and Kauitzsch should be

suspended from the program for two-years (with the possibility of review after

one year) and attend forty-five hours of ethical counseling. The students

appealed these decisions to the chair of the department, Dr. Stan Carpenter,
No. 06-50794

2 The students also brought a First Amendment Retaliation claim against the

Defendants. That claim, which was also dismissed by the district court, was not appealed.

4

contending that they were entitled to a full academic hearing. They also argued

that the two-year suspension essentially amounted to expulsion since their

program required that they graduate within five years of the date of their

matriculation into the program. Carpenter upheld the FRCs’ recommendations.

All three students filed suit against the above named DefendantsAppellees in federal district court, alleging violations of due process and equal

protection under both the Texas and federal constitutions, as well as violations

of the federal Family Educational Rights and Privacy Act (“FERPA”), and the

Texas Public Information Act (“TPIA”); they sought damages and injunctive

relief under 42 U.S.C. § 1983.2 The district court: (1) dismissed the claims

againstthe University and Beck in his official capacity, finding they were barred

by the Eleventh Amendment; (2) dismissed Livingston’s due process claims; (3)

granted Defendants’ motion for summary judgment on Parker’s and Kauitzsch’s

due process claims; (4) dismissed the students’ equal protection and first

amendment retaliation claims; and (5) dismissed their FERPA and TPIA claims

as moot. The three students timely appealed the district court’s dismissal of

their procedural due process claims, as well as the dismissal oftheir FERPA and

TPIA claims as moot.

II. DISCUSSION

We review the district court’s grant of summary judgment de novo.

Templet v. Hydro-Chem, Inc., 367 F.3d 473, 477 (5th Cir. 2004). “Summary

judgment is appropriate if no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law.” Id. Evidence is viewed

in a light most favorable to the non-movant. Id.

The Fourteenth Amendment prevents states from depriving any person of

life, liberty, or property without due process of law. U.S. CONST. amend XIV, §
No. 06-50794

3 Plaintiffs bring their claims under the Texas and federal constitutions. However,

because “Texas courts [in cases involving academic decisions] interpreting the Due Course

Clause of the Texas Constitution have looked to federal case law interpreting federal due

process rights,” Wheeler v. Miller, 168 F.3d 241, 247 (1999) (internal citations omitted), we

need not analyze their claims under both state and federal case law.

4

In Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 86-90 (1978), the Supreme

Court, relying in part on Dixon, explained that students are entitled to far fewer procedural

protections in academic actions. While a hearing may typically be appropriate for disciplinary

actions schools take against their students, the Court observed that such a process may be less

useful in determining the truth concerning scholarship or other academic endeavors. Id.

5

1. The Supreme Court has recognized that students at tax-supported

educational institutions subjected to remedial actions resulting in removal from

the academic setting are entitled to the protections of the Due Process Clause.

Goss v. Lopez, 419 U.S. 565, 576 n.8 (1975). While “the very nature of due

process negates any concept of inflexible procedures universally applicable,” Id.

at 578 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)), at a

very minimum, students are entitled to notice and an opportunity to be heard.

Id. at 579.

The students assert that the district court erred in granting the

Defendant’s motion for summary judgment on their due process claims.3 They

contend that the district court erred in determining that they knowingly waived

a hearing on the disciplinary decision and that the academic suspension that

followed was not the result of that disciplinary action. They direct this court’s

attention to Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 158-59 (5th Cir.), cert.

denied, 368 U.S. 930 (1961), where this court not only held that students at

public universities are entitled to procedural due process protections, but also

that the amount of process due is dependant on whether the action is

disciplinary or academic.4 See Wheeler v. Miller, 168 F.3d 241, 248 (1999). The

students argue that the University “bootstrapped” its disciplinary decision onto

its academic decision, and as such, they were entitled to greater due process

protections.
No. 06-50794

5 Livingston, for the first time in her reply brief, states that even though the University

had already conferred her degree at the time the allegations against her arose, she was still

attending class in order to finish an incomplete grade. She contends that the University

converted her incomplete into an “F,” and that she is entitled to due process on that ground.

However, this court does not consider arguments not raised in an appellant’s original brief.

See Nissho-Iwai Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1539 n.14 (5th Cir. 1984)

(“[A]n [appellant’s] original brief abandons all points not mentioned therein.”).

6

We reject the arguments advanced by the students. First, the district

court properly dismissed Livingston’s due process claim. It is uncontested that

Livingston graduated from the University in the Spring of 2003, before Duffey

raised her allegations against the students. Livingston was not a part of any of

the meetings that occurred during the Summer of 2003, and she has failed to

demonstrate that she was deprived of any constitutionally-protected interest.5

Livingston asserts that her reputation was damaged by the University’s actions,

but case law has established that there is “no support for the proposition that

reputation alone, apart from some more tangible interests . . . is either ‘liberty’

or ‘property’ by itself sufficient to invoke the procedural protection of the Due

Process Clause.” Wheeler, 168 F.3d at 249 (quoting Paul v. Davis, 424 U.S. 693,

701 (1976)).

Second, Parker and Kauitzsch have failed to demonstrate that they were

entitled to any more due process than they have already received. They were

given notice of the allegations against them. They then had ample opportunity

to be heard: they had two meetings with Boone and Duffey, two meetings with

Morton, and they each met with a FRC. While none of these meetings were

formal,trial-type hearings, both Parker and Kauitzsch were able to fully discuss

the charges against them and present evidence supporting their contentions.

That is all the Due Process Clause requires in this situation. The district court,

after a thorough review of the evidence, found that the students “were afforded

the due process to which they were entitled.” After independently reviewing the

record, we refuse to disturb that determination. In reaching this conclusion, we
No. 06-50794

7

need not decide whether the action the University took againstthe students was

disciplinary or academic in nature because the students received sufficient

process under either standard.

We also find that the district court properly dismissed the students’

FERPA andTPIA claims as moot because the University provided them with the

records they requested.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.