Ivan VILLARREAL, Appellant v. TEXAS SOUTHERN UNIVERSITY; Dannye Holley, in His Individual & Official Capacities; Edward Maldonado (a/k/a Spearit ), in His Individual & Official Capacities; Gabriel Aitsebaomo, in His Individual & Official Capacities, Appellees

NO. 01-17-00867-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 31, 2018 Rehearing Denied April 25, 2019

*919PER CURIAM

Former law student Ivan Villarreal appeals from a trial court order dismissing with prejudice his claims against Texas Southern University and three members of its faculty. Villarreal argues that the trial court improperly granted a plea to the jurisdiction on his constitutional claims, his breach-of-contract claim, and his claims directed at the university employees in their official and personal capacities. We conclude that under governing precedents, Villarreal has alleged viable constitutional claims, and we reverse the trial court's judgment in part and remand for further proceedings.

**Background**

As required by the standard of review applicable to this appeal, we construe the pleadings liberally and accept factual allegations as true unless proved otherwise by undisputed evidence.1

Appellant Ivan Villarreal enrolled in the Thurgood Marshall School of Law at Texas Southern University as a first-year student in August 2014. The university divided all first-year students into four sections. Villarreal was in Section 4. All but one of the first-year classes were graded on a curve. For those classes subject to a curve, a student's final grade was made up of two parts. The first part was an exam score that was scaled against all other first-year student scores in all sections; the second was a score assigned by the professor that was scaled against other student scores in the same section. Each of those scores accounted for half of each student's grade. The students' total scores in each class were once again curved to produce final grades. Using a typical system of grade-point averages, the university had a policy of dismissing any student who failed to maintain a GPA of 2.0 (a C average) after the completion of the first two semesters.

The university had another policy prohibiting professors from leading classroom teaching sessions during the reading period between the last day of classes and final exams. Professor Maldonado, the criminal-law professor for Section 2 who uses the "professional name" of "SpearIt," proposed review sessions during the reading period. But Assistant Dean Gabriel Aitsebaomo instructed Professor Maldonado not to conduct classroom-style teaching, on or off campus, during the reading period.

Professor Maldonado held review sessions anyway. The times and locations were disseminated by email. At the review sessions, Professor Maldonado showed students at least thirteen questions that were materially identical to questions that later appeared on the sixty-question uniform criminal-law exam that was used for all four sections of students. Some students left the review sessions with copies of the previewed questions.

Shortly after first-semester grades were posted, rumors circulated among the first-year class that "a handful of students," predominantly from Professor Maldonado's Section 2 criminal-law class, had received pre-exam access to a number of exam questions during off-campus study sessions. By early February 2015, university administrators were aware of Professor Maldonado's unauthorized review sessions. Dean Dannye Holley identified thirteen exam questions that were accessed by an undetermined number of students before the exam and commissioned a statistical analyst to determine the effect of Professor Maldonado's review sessions. The statistician sought clarification that the university administrators were "quite sure"

*920that the thirteen identified questions were the "only items that might have been compromised," as he planned to "use the non-compromised items as the 'control' " for his analysis. Dean Aitsebaomo responded: "There is a likelihood that the other items may potentially be compromised but the items you have are the ones we were provided evidential proof of." The statistician was instructed to assume that only thirteen questions were compromised and that Section 2 was the only section that received prior access to the questions.

In early March, Dean Holley informed the entire first-year class by email that the matter had been investigated and the exam results had been submitted to a "national expert," whose "key finding" was:

> Most importantly, the overall mean difference between the alleged compromised items(13)[C] and the Non-compromised items(4)[NC] in Fall 2013 students was to be no different from the one observed in 2014. Further a comparison of the NC TO C item set performance difference between sections again showed no significant difference between sections. This finding confirms that the differences between sections are most likely random occurrences.

Dean Holley thus stated:

> Hence our expert concluded no section received an advantage that made a difference in the performance between sections. The section which performed better on the thirteen items also performed better on the remaining 47, and the section which performed worst on the thirteen items also performed worst on the remaining 47. We must conclude therefore that even if the C items were previewed to a section, they did not impact the exam outcomes for those students, or the students in other sections[.]

The university advised students to file individual petitions with the Academic Standards Committee to review their individual exam scores by March 15, 2015, if they wished to preserve challenges to their grades. Villarreal relied on this email's conclusion that the review sessions had no effect on student scores in deciding not to challenge the C+ grade he received in criminal law.

Still concerned about the "optics" of the scenario, the university implemented a "class-wide remedy." The exam was re-scored without the thirteen compromised questions. The university then allowed students the option of accepting the new score if it was higher than the original score. The university claimed that this remedy did not result in any student's final letter grade being reduced, but in a later email to the entire first-year class, the class president stated that "at least one student's grade was lowered."

At the end of the second semester, the law school's registrar emailed Villarreal and informed him that he was being dismissed from the law school. His GPA was 1.98, below the minimum 2.0 GPA. Villarreal filed three petitions with the Academic Standards Committee, requesting review of his grades. He met with the committee, Dean Aitsebaomo, and Dean Holley. All stated that Villarreal missed the opportunity to challenge his criminal-law grade, with the committee noting that the university already "addressed administratively the issue of the alleged cheating in Criminal Law." Villarreal was then dismissed from the law school.

Villarreal sued the university, Dean Holley, Professor Maldonado, and Dean Aitsebaomo. He alleged that his substantive and procedural "due course of law" rights under the Texas Constitution were violated in multiple ways: by the unauthorized review *921sessions; by the university's failure to provide "suitable and appropriate remediation of the gross violation of his rights" with respect to the criminal-law exam and the determination of his cumulative GPA; by the university's actions misrepresenting the statistician's conclusions, withholding his full report, and "covering up the affair"; and by his dismissal from law school. He also alleged breach of contract. Villarreal's petition specifically stated it was "based solely on claims arising under Texas law" and that he "expressly disavows any federal claims."

While discovery was ongoing, the appellees filed a plea to the jurisdiction based on sovereign immunity and supported by evidence challenging some of Villareal's factual allegations. Villarreal filed a response, asking the trial court to deny the plea or, in the alternative, refrain from ruling until sufficient discovery could be conducted. After a hearing, the trial court granted the jurisdictional plea and dismissed Villarreal's claims with prejudice. Villarreal then filed a motion for a new trial that the trial court denied.

Villarreal appeals.

**Analysis**

Villarreal contends that the trial court erred by dismissing his case. In their jurisdictional plea, the appellees argued that they were immune from suit. Sovereign immunity protects the State and its employees from suit and will defeat a trial court's subject-matter jurisdiction unless the plaintiff establishes the State's consent to suit or pleads a viable constitutional claim.2 Subject-matter jurisdiction implicates questions of law that this court reviews de novo.3

A plea to the jurisdiction may be supported by evidence challenging the existence of jurisdictional facts necessary to support a claim.4 A trial court reviews the relevant evidence and determines whether there is a dispute regarding a jurisdictional fact.5 When such a fact question exists, a trial court should not grant the plea, and when none exists, a trial court may rule on the jurisdictional issue as a matter of law.6 As with a traditional motion for summary judgment, a party asserting a plea to the jurisdiction must conclusively negate a jurisdictional fact before the burden shifts to the nonmovant to present evidence raising a question of fact.7 If a jurisdictional deficiency can be cured by allowing the nonmovant to amend his pleadings, he should be afforded that opportunity.8

**I. Due-course-of-law claims**

Villarreal contends that the trial court improperly granted the university's plea to the jurisdiction because he stated viable due-course-of-law claims that defeated the appellees' claim to sovereign immunity. Section 19 of the Texas Bill of Rights provides: "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of law of the land."9 The Supreme Court of Texas has looked to federal authorities *922applying the Fourteenth Amendment as persuasive authority when interpreting the analogous due-course-of-law clause in the Texas Constitution.10 This court must analyze Villarreal's due-course-of-law claims and determine whether the trial court properly concluded that some element of the claims had been shown conclusively to be lacking.11

**A. Procedural due-course-of-law claims**

As a threshold issue for any procedural due-course-of-law claim, the claimant must allege that the state deprived him of a constitutionally protected interest.12 Whether such a protected interest exists is a question of law this court reviews de novo.13 The university contends that Villarreal has failed to satisfy this element and the trial court therefore appropriately granted its plea to the jurisdiction. We disagree.

Villarreal alleged generally that the university deprived him of the liberty interest students have in "continuing graduate education." In *University of Texas Medical School at Houston v. Than* ,14 the Supreme Court of Texas has held that a graduate student dismissed for academic dishonesty held a "constitutionally protected liberty interest in his graduate education that must be afforded procedural due process."15 And because Villarreal alleges that the appellees' handling of the exam controversy resulted in his criminal-law grade being depressed and ultimately caused his year-end GPA to dip just below the 2.0 cutoff to remain enrolled, and that he faces serious damage to his reputation and the loss of his chosen profession as a lawyer, his allegations sufficiently implicate the liberty interest in a graduate education as recognized in *Than* and precedents of this court.

The appellees contend that Villarreal's pleadings do not sufficiently allege that he was deprived of his liberty interest in continuing a graduate education without due course of law. A "flexible standard" that focuses on the "practical requirements of the circumstances" applies to determine what process was due.16 Considerations include the private interest affected by official action; the risk that the procedures used will result in an erroneous deprivation of that interest; "the probable value, if any, of additional or substitute procedural safeguards"; and "the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."17

Villarreal claims that he was denied due process when the university acted in bad faith by misleading students about the effect of Professor Maldonado's review sessions on criminal-law exam scores. After the university informed Villarreal of its *923decision to dismiss him, he attempted to challenge his criminal-law grade. The university told him he missed his opportunity to challenge the grade from the previous fall semester, noting that it already "addressed administratively the issue of the alleged cheating in Criminal Law." Villarreal alleges that he did not challenge his grade earlier because he relied on Dean Holley's email sent to the entire first-year class that stated "our expert concluded no section received an advantage that made a difference in the performance between sections." Villarreal contends that the email was misleading because it quoted a portion of the statistician's report concluding that any "differences between sections are most likely random occurrences," but it left out other portions of the report that suggested otherwise, such as the conclusions that there was a "statistically significant difference" between section scores and that it was "unclear from the data available whether this difference was due to the [compromised] item set being inherently easier or the fact that student's received pre-testing information on them which would have enhanced their performance."

This court previously held that when a graduate student's dismissal results from a university's bad faith, that student's procedural due-course-of-law rights are violated. In *Alcorn v. Vaksman* , a doctoral candidate in history was dismissed for nominally academic reasons.18 On appeal from a judgment in the student's favor after a bench trial, the university relied upon the U.S. Supreme Court's decision in *Board of Curators of University of Missouri v. Horowitz*19 to argue that its academic judgments were due "great respect" from the court.20 This court agreed with that principle21 but noted that the rule "assumes, of course, that the academic decision was made in good faith," because if it was made in bad faith, the university was "not entitled to the deferential standard of review used in cases of good faith academic dismissals."22 After reviewing the trial court's findings, this court concluded that there was sufficient evidence that the student's dismissal was not due to academic deficiencies, but instead was a result of the university's "bad faith or ill will unrelated to performance."23

In this case, Villarreal contends that the university engaged in a cover-up by tailoring its investigation to reach a specific conclusion. According to Villarreal, the university did this by refusing to investigate the number of students who accessed the review-session questions, by refusing to ascertain the actual number of questions that were disclosed to students in advance of the exam, by providing incomplete information to the statistician who analyzed the review sessions' effect on student scores, and finally by revealing to students only selected quotes from the statistician's report in an attempt to mislead them to conclude that the review sessions had no effect on their grades.

The university, relying on declarations of its employees, contends that its decisions to investigate the allegations, to hire an expert to evaluate the exam, and to *924present its findings to the first-year class are undisputed evidence that conclusively demonstrates that it did not act in bad faith. We disagree. "Bad faith, like motive and other such ultimate facts constituting state of mind, must, of necessity, usually be established as an inference flowing from words, acts and conduct proved."24 Although "the nature of the words, acts and conduct proved might be such as to authorize and justify a court in taking a case from the jury and in drawing the ultimate fact inference as a matter of law ... that can rarely be so."25 The retention of a statistician and communications with the first-year class are not conclusive proof that the university did not act in bad faith.26

Applying our court's precedents, we conclude that Villareal adequately alleged a procedural due-course-of-law claim based on his allegation of the university's bad-faith mismanagement of an exam-grading controversy, which allegedly caused him to miss the GPA cut-off by two one-hundredths of a grade point and thereby jeopardized his reputation and intended career path.27

**B. Substantive due-course-of-law claims**

Villarreal also argues that the trial court improperly granted the plea to the jurisdiction on his substantive due-course-of-law claim. A court reviewing a student's challenge to his dismissal from a publicly funded university may not override the faculty's professional judgment with respect to an academic dismissal unless that judgment reflects such "a substantial departure from accepted academic norms as to conclusively demonstrate that the person or committee responsible did not actually exercise professional judgment."28

Even if we assume, as suggested by the appellees, that Villarreal's dismissal was the result of a purely academic decision, to justify deference to the decision the evidence submitted in support of the plea to the jurisdiction must conclusively demonstrate *925the exercise of professional judgment.29

Read liberally, Villarreal's pleadings allege that the "class-wide remedy" for irregularities in the criminal-law exam was arbitrary, implemented in bad faith, and negatively affected his grades. Aside from Dean Holley's declaration stating that the remedy "fit the facts," nothing in the record explains why the university imposed the remedy that it did.30 Accordingly, we conclude that the appellees did not conclusively demonstrate that the decision to implement the "class-wide remedy" was an exercise of professional judgment entitled to judicial deference in the context of a constitutional challenge.31 We therefore sustain Villarreal's issue challenging the dismissal of his substantive due-course-of-law claim.

**II. Breach-of-contract claim**

Villarreal also challenges the dismissal of his breach-of-contract claim. He did not allege a contractual relationship with any party other than the university. By "entering into a contract, the State does not waive its immunity from suit."32 It is "the Legislature's sole province to waive or abrogate the State's immunity from suit."33 Therefore, even to the extent Villarreal had a contract with the university, his failure to identify any legislative authority that would overcome sovereign immunity from his breach-of-contract claim confirms that the trial court appropriately dismissed the claim. Accordingly, we overrule Villarreal's issue regarding his breach-of-contract claim.

**III. Official- and personal-capacity claims**

Finally, Villarreal argues that the trial court improperly dismissed his claims against Dean Holley, Dean Aitsebaomo, and Professor Maldonado in their official and personal capacities. Every cause of action Villarreal raised against the individual defendants alleged that they violated his rights under the due-course-of-law clause. In light of our conclusion that Villarreal alleged a viable constitutional claim, we sustain his issue challenging the erroneous dismissal of his official-capacity claims.34 Villareal's petition did not specifically allege any basis to hold the individuals liable in their personal capacities for constitutional violations, and his appellate brief sheds no additional light on the matter. We therefore overrule the challenge to the dismissal of constitutional claims against the individual defendants in their personal capacities.35 Because Villarreal *926failed to state a viable personal-capacity claim against any of the named defendants, we conclude that the trial court appropriately dismissed his personal-capacity claims.

**Conclusion**

We reverse the judgment of the trial court to the extent it dismissed Villareal's constitutional claims against all appellees. We affirm the judgment to the extent it dismissed claims alleging the university's breach of contract or personal liability of the individual defendants for constitutional violations. We remand the case to the trial court for further proceedings.

Justice Jennings concurring in the judgment only.

Justice Massengale, concurring in the judgment.

**CONCURRING OPINION**

Michael Massengale, Justice

The Texas Bill of Rights provides that no "citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."1 As this provision was understood when our Texan predecessors adopted the 1876 state constitution, a law student's dismissal from school for poor academic performance properly should not be considered a deprivation of liberty. Even if it were, in the circumstances of this case the dismissal was not inconsistent with "the due course of the law of the land."

I concur in the judgment as an intermediate appellate court's application of controlling precedent. But I also respectfully suggest that in their past development of Texas constitutional law, Texas courts often have too uncritically adopted the federal courts' ever-morphing methods of applying the Fourteenth Amendment of the U.S. Constitution. The Texas bench and bar should undertake the effort of litigating and implementing the proper interpretation of our unique Texas Constitution. Not for the sake of being different, but because our state constitution serves an important function as a distinct source of legal protections for individual rights, because reasonable jurists can and do disagree about how the legal concept of due process can and should be implemented by courts, and because independent reasoning by Texas judges could positively influence the development of the law in other states and in the federal courts as well.

**I**

Ivan Villareal's fundamental complaint is that he was dismissed from a public law school. The justification was that his GPA fell below 2.0, which mandated his dismissal under school policies. Villareal does not challenge the constitutionality of the policy of requiring a 2.0 GPA to continue his studies.

There is no allegation that the law school failed to provide fundamental procedural protections to Villareal in the implementation of this policy. The school provided Villareal notice of his dismissal and the reason for it. He had opportunities to give reasons why the policy should not be applied to him, and he actually was heard in various ways by the Academic Standards Committee and in personal meetings with two deans. To the extent Villareal attributes his substandard GPA to one particular grade, he also had an opportunity to challenge that grade after the fall semester, though he failed to do so. Thus from a procedural perspective concerning the individual grades that cumulatively determined his GPA and resulted *927in his academic dismissal, Villareal has no constitutional grievance whatsoever.

But there's more to this case, which confounds the typically observed distinction of dismissals based on academic performance from those based on student misconduct.2 Villareal's 1.98 GPA was so close to the 2.0 cutoff that the smallest incremental increase of any one of his grades would have allowed him to stay in school. And there were unusual circumstances surrounding one of his classes, his fall course in criminal law. The first irregularity arose from a law professor previewing actual questions from a criminal-law exam given to the entire first-year class and graded on a curve. Villareal alleges that an unfair advantage to some students depressed the grades of other students and caused his own GPA to dip to 1.98.

The exam irregularity allegedly was compounded by the school administration's handling of the matter. Villareal criticizes the investigation for jumping to unwarranted conclusions by failing to fully inquire about the scope of the problem, such as how many questions were previewed and how many students were disadvantaged as a result. The school then reported to students selected excerpts of the resulting statistical analysis as an apparent assurance that grades were unaffected. Villareal contends that he relied on this information when he decided not to challenge his criminal-law grade, a decision he regretted the next semester when an incremental grade adjustment could have made the difference that allowed him to continue his studies. The subject of the constitutional challenge therefore is not simply his dismissal for low grades, but the cumulative effect of conduct by school employees that impacted one component of one grade just enough to subject Villareal to an otherwise unimpeachable academic dismissal.

Villareal sued, seeking a declaration of his rights and injunctive relief in the form of re-admittance to the law school as a second-year student in good standing. He alleged that a contract with the law school was breached, but his claims are primarily based on the Texas Constitution's due-course-of-law protections. For reasons that are not disclosed in the appellate record, Villareal has deliberately confined his constitutional claims to the Texas Constitution, and he has expressly disavowed reliance on comparable federal protections.3

**II**

To reach the conclusion that Villareal's complaint presents a valid type of constitutional claim, courts have identified reputation associated with the pursuit of graduate education as a constitutionally protected liberty interest.4 But it has been persuasively argued that the "liberty" referenced in federal and state constitutional due-process protections, which *928are similarly traceable to Magna Carta,5 refers to freedom from physical restraint: "the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law."6 This conception of liberty also was understood as a freedom from governmental interference, not a right to governmental entitlements.7

Even to the extent courts have stretched the concept of liberty for these purposes beyond the original public understanding at the time the Texas Constitution was adopted, the case for treating a citizen's pursuit of graduate education-and whatever embarrassment may accompany an expulsion from school-as sufficiently fundamental to invoke constitutional protection under the rubric of due process is far from self-evident. Contemporary precedents have identified a student's reputational concern for not being arbitrarily dismissed on grounds of alleged misconduct as the justification for recognizing a liberty interest worthy of constitutional protection.8 Without diminishing the significance of the concern for students facing that circumstance, it bears observation that the *929cases have not attempted to justify extending constitutional protections on the grounds that this interest is of a nature "so rooted in the traditions and conscience of our people as to be ranked as fundamental."9

**III**

Even accepting precedents such as *Goss v. Lopez*10 and *University of Texas Medical School at Houston v. Than*11 at face value, their application to the unique facts of this case should not compel a conclusion that a constitutional claim is viable. It's one thing for courts to have held that a state university or its employee can be sued when bad faith tainted a decision to expel a graduate student despite a pretense of procedural protections such as *930notice and a hearing.12 But it is hard to see how that circumstance is implicated in this case, when the essential allegation is not a denial of procedural fairness in enforcing the rule imposing a minimum standard of academic performance.

Instead, Villareal presents a different kind of complaint that boils down to allegations of incompetence or self-serving malfeasance in the exercise of academic discretion, with an attenuated theory of causation that the marginal impact on the exam curve affecting 50% of his criminal-law grade had the consequential effect of pulling his GPA below the school's minimum standard for academic performance. But the suggestions that some conduct by Professor Maldonado,13 or by Dean Holley and Dean Aitsebaomo,14 could be proved to have proximately caused Villareal's academic dismissal,15 thereby depriving him of the opportunity to pursue a legal career, strain credulity.

**IV**

Assuming that Villareal has a cognizable claim under the Texas Constitution, by what standard should a court evaluate it? In the past our court has applied an ultradeferential review standard found nowhere in the federal or state constitutions. If "reasonable academic judgment" was used to justify dismissal, then under our precedents the student's challenge can't succeed.16 But once the courts have decided to recognize a constitutionally protected liberty interest in these circumstances, why would they then hold state-employed academics to such a toothless extraconstitutional standard determined by academia itself?

Courts applying due-process principles need not, and have no authority to, inject themselves into "every field of human activity where irrationality and oppression *931may theoretically occur."17 It is unnecessary to constitutionalize disputes of this kind that can be better resolved in other ways that do not require courts to conjure rules to govern academic administration, especially if the rule they invent is only going to impose extreme deference to "reasonable academic judgment."

In the absence of legislative and regulatory guidance, the better tools for analyzing this dispute are the traditional common-law causes of action18 -the same legal claims Villareal presumably would consider if a public school were not involved in this case. He already has alleged breach of contract. Based on the allegations that the first-year class was misled about the nature of the school's investigation and the conclusions to be drawn about whether the curve had been impacted, a tort claim such as fraudulent misrepresentation might provide a remedy,19 subject to the application of defensive doctrines such as governmental and official immunities.20

To the extent the remedies supplied by the common law might be considered inadequate-because they are limited to money damages or could be barred by immunity-the Legislature is better equipped to supply remedies to protect citizens' access to and fair treatment in the course of publicly funded graduate education. The Legislature can determine whether special statutes or regulations are necessary to supply legal rules to police and ensure fairness in academic exams. The Legislature can determine whether and to what extent the existing scope of immunity should be narrowed to allow students to access courts to vindicate their legal rights. And if the Legislature saw fit to take such actions, courts then would have justiciable standards by which the actions of professors and university administrators could be evaluated. Courts then would also have a basis grounded in law to determine whether a student was deprived of some right established by state law, and if so whether it was caused by some official action that conflicted with the due course of the law of the land.

**V**

Confronted with a novel case like this, Texas judges should resist the easy path of *932merely stating that we follow the federal courts in their implementation of constitutional due-process protections. To the extent early Texas authorities reasonably observed a conceptual unity behind federal constitutional "due process" and state constitutional "due course of law,"21 the ensuing 150 years of judicial experience have shown, at a minimum, that these important constitutional protections for individual rights have not always been susceptible to judicial implementation by objectively discerned standards. Citizens and jurists have disagreed in good faith about how these provisions can and should be enforced in the courts, and the solutions applied by the federal courts therefore are not necessarily the infallibly correct solutions.22 These questions, including the means of safeguarding those unalienable rights of men that have not been reduced to writing in a constitutional text, ultimately depend on the application of reason and judgment, which federal and state courts are equally capable of performing, even when they reach different conclusions.

State courts interpreting their own state constitutions have an important role to play in ongoing national developments about the interpretation and application of American constitutional principles,23 including the relative roles of the branches of government. Important perspectives will be lost and the quality of decisionmaking will be poorer if we do not fully engage, and instead uncritically defer to federal precedents.

Texas courts do not have to meekly follow federal authorities when interpreting the Texas Constitution. We should adopt reasoning used in federal cases when it is relevant and persuasive. When federal authorities are relevant yet unpersuasive, we should engage in an independent judicial decisionmaking process and aim to reach better decisions and provide better guidance to the legal community and to the public generally, explaining the reasoning that we think better resolves the cases before us. In my view, our judicial oaths to preserve the Texas Constitution require nothing less.

* * *

The briefing in this appeal and the novel issues presented to us assume the continuing validity of prior Texas decisions which have not analyzed the issues in the way I am suggesting. The briefs do not advocate any distinctive constitutional interpretations based on unique text or history associated with the Texas Constitution.24 As such, in the current procedural posture the court is not equipped to draw any firm conclusions about what the Texas Constitution might require in a case such as this. For present purposes at this early stage of *933litigation, I am satisfied with the court's conclusion that based on the current state of the law as stated by the Supreme Court of Texas and precedents of this court, it was error for the trial court to conclude that Villareal failed to plead viable constitutional claims. As such I concur in the court's judgment remanding the case for further proceedings in the trial court.

1

*See**Tex. Dep't. of Parks & Wildlife v. Miranda* , 133 S.W.3d 217, 225-26 (Tex. 2004).

2

*Tex. Nat. Res. Conservation Comm'n v. IT-Davy* , 74 S.W.3d 849, 855 (Tex. 2002).

3

*Id.*

4

*See, e.g.* , *Miranda* , 133 S.W.3d at 227.

5

*Id.* at 227-28.

6

*Id.*

7

*Id.* ; *Tex. S. Univ. v. Gilford* , 277 S.W.3d 65, 70 (Tex. App.-Houston [1st Dist.] 2009, pet. denied).

8

*Id.* at 226-27.

9

Tex. Const. art. I, § 19.

10

*See, e.g.* , *Univ. of Tex. Med. Sch. at Hous. v. Than* , 901 S.W.2d 926, 929 (Tex. 1995) ("in matters of procedural due process, we have traditionally followed contemporary federal due process interpretations of procedural due process issues"); *see also**Alcorn v. Vaksman* , 877 S.W.2d 390, 396 (Tex. App.-Houston [1st Dist.] 1994, writ denied) (en banc) ("[I]f a federal due process violation was proved, the evidence will prove a state violation, as well.").

11

*See**Miranda* , 133 S.W.3d at 228.

12

*See**Than* , 901 S.W.2d at 929.

13

*See**id.* at 929-31.

14

901 S.W.2d 926 (Tex. 1995).

15

*Id.* at 930 ; *see also**Alcorn* , 877 S.W.2d at 396.

16

*Than* , 901 S.W.2d at 930.

17

*Id.*

18

877 S.W.2d at 393-95.

19

435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978).

20

*Alcorn* , 877 S.W.2d at 397.

21

*See**id.* (citing *Clements v. Cty. of Nassau* , 835 F.2d 1000, 1005 (2nd Cir. 1987) ).

22

*Id.* (citing *Ikpeazu v. Univ. of Neb.* , 775 F.2d 250, 253 (8th Cir. 1985) ).

23

*Id.* at 400 (quoting *Ikpeazu* , 775 F.2d at 253 ).

24

*Kone v. Sec. Fin. Co.* , 158 Tex. 445, 313 S.W.2d 281, 284 (Tex. 1958) ; *see also**Alcorn* , 877 S.W.2d at 400.

25

*Kone* , 313 S.W.2d at 284 ; *see also**Alcorn* , 877 S.W.2d at 400 (noting that where bad faith, a state of mind, is the critical issue and strong evidence exists to support the plaintiff's case, summary judgment is generally inappropriate).

26

*See**Kone* , 313 S.W.2d at 284.

27

*See also**Alanis v. Univ. of Tex. Health Sci. Ctr.* , 843 S.W.2d 779, 784 (Tex. App.-Houston [1st Dist.] 1992, writ denied) ("If the dismissal was based upon academic grounds, the school's decision is not to be disturbed unless it was motivated by bad faith or ill will unrelated to academic performance, or was based on arbitrary and capricious factors not reasonably related to academic criteria.").

28

*Alanis* , 843 S.W.2d at 789 (quoting *Regents of the Univ. of Mich. v. Ewing* , 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985) ). Although *Ewing* made a point of characterizing the case as one involving an academic judgment, it said nothing about how and if the standard changes in disciplinary cases, *see*474 U.S. at 225, 106 S.Ct. at 513, despite the clear difference the distinction has in procedural due-process cases. *Compare**Goss v. Lopez* , 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975) (stating procedural due process requires students dismissed for disciplinary reasons be afforded "some kind of notice" and "some kind of hearing"), *with**Horowitz* , 435 U.S. at 85-86, 98 S.Ct. at 953 (noting that procedural due-process requirements for an academic decision are "far less stringent," do not include a hearing, and may be satisfied by an informal process culminating in a "careful and deliberate" academic assessment).

29

*See**Ewing* , 474 U.S. at 225, 106 S.Ct. at 513 ; *see also**Miranda* , 133 S.W.3d at 228.

30

Although the university contends that no student's grade was lowered, that claim has been factually disputed to the extent the record includes an email sent by the class president in which he "confirmed that at least one student's grade was lowered."

31

*See**Alanis* , 843 S.W.2d at 789 ("to have a cause of action for substantive due process violations," a dismissed graduate student must show that a university official's actions "were arbitrary and capricious; that is, that there was no rational basis for the University's decision, or that the decision to dismiss was motivated by bad faith or ill will unrelated to his academic performance" (citing *Ewing* , 474 U.S. at 220-26, 106 S.Ct. at 510-14 ) ).

32

*IT-Davy* , 74 S.W.3d at 856.

33

*Id.*

34

*See, e.g.* , *Hall v. McRaven* , 508 S.W.3d 232, 238-39 (Tex. 2017) ; *City of El Paso v. Heinrich* , 284 S.W.3d 366, 372-73 (Tex. 2009).

35

*See, e.g.* , *City of Beaumont v. Bouillion* , 896 S.W.2d 143, 147-49 (Tex. 1995) (no implied cause of action for damages against government employees for violations of the Texas Constitution).

1

Tex. Const. , art. I, § 19.

2

*See, e.g.* , *Univ. of Tex. Med. Sch. at Houston v. Than* , 901 S.W.2d 926, 931 (Tex. 1995) (citing *Bd. of Curators of Univ. of Mo. v. Horowitz* , 435 U.S. 78, 86-87, 98 S.Ct. 948, 953-54, 55 L.Ed.2d 124 (1978) ).

3

The procedural posture of this appeal and the presentation of state constitutional issues are therefore quite different from the circumstances of *Davenport v. Garcia* , 834 S.W.2d 4 (Tex. 1992), in which only federal constitutional arguments were made until the Supreme Court of Texas invited supplemental briefing on the effect of the state constitution. *See also* Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 8-9 (2018) (observing that although American dual federalism results in dual constitutional opportunities to challenge actions by state governments, most lawyers focus their arguments on federal claims and neglect to present meaningful distinct arguments based on state constitutions).

4

*E.g.* , *Than* , 901 S.W.2d at 930 (medical student expelled for academic dishonesty had "a constitutionally protected liberty interest in his graduate education that must be afforded procedural due process," citing *Goss v. Lopez* , 419 U.S. 565, 574-75, 95 S.Ct. 729, 736-37, 42 L.Ed.2d 725 (1975), *Bd. of Regents of State Coll. v. Roth* , 408 U.S. 564, 572, 92 S.Ct. 2701, 2706-07, 33 L.Ed.2d 548 (1972), and *Dixon v. Ala. State Bd. of Educ.* , 294 F.2d 150, 157 (5th Cir. 1961) ).

5

Magna Carta, ch. 39 (1215) ("No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land."); Magna Carta (1225) ("No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers or by the law of the land."); *see also**Kerry v. Din* , --- U.S. ----, 135 S.Ct. 2128, 2132, 192 L.Ed.2d 183 (2015) (Scalia, J., plurality op.) ("The Due Process Clause has its origin in Magna Carta."); *Den v. Hoboken Land & Improvement Co.* , 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1855) ; *Patel v. Tex. Dep't of Licensing & Regulation* , 469 S.W.3d 69, 82-84 (Tex. 2015) (discussing history of adoption of due-course-of-law clause, including alterations made at the 1875 constitutional convention); *Sax v. Votteler* , 648 S.W.2d 661, 664 (Tex. 1983) (acknowledging that article I, section 19 of the Texas Bill of Rights has its origin in Magna Carta); 1 George D. Braden et al., The Constitution of the State of Texas: An Annotated and Comparative Analysis 68 (1977) ("Whether the phrase be 'due course of law' or 'due process of law' they both have a common origin in the 'law of the land' expression of the Magna Carta and a common history."); John Cornyn, *The Roots of the Texas Constitution: Settlement to Statehood* , 26 Tex. Tech L. Rev. 1089, 1127-30 & n. 245 (1995) (noting that due course of law was incorporated in the 1845 Texas Constitution "without debate" and later reproduced in the 1876 Texas Constitution); J.E. Ericson, *Origins of the Texas Bill of Rights* , 62 S.W. Hist. Q. 457, 463-64 (1959) (noting that the "due course of law" provision was first introduced in a Texas constitution upon statehood in 1845).

6

1 William Blackstone, Commentaries on the Laws of England 130 (1769); *see also* Charles Warren, *The New "Liberty" Under the Fourteenth Amendment* , 39 Harv. L. Rev. 431, 441-45 (1926) (discussing the founding-era interpretation and application of "liberty" as used in state constitutions).

7

*See* Philip A. Hamburger, *Natural Rights, Natural Law, and American Constitutions* , 102 Yale L.J. 907, 918-19 (1993) (arguing that Americans in the founding era understood natural liberty as "the freedom an individual could enjoy as a human in the absence of government").

8

*See**Goss* , 419 U.S. at 574-75, 95 S.Ct. at 736 (high-school students were suspended for up to 10 days on charges of misconduct that, "[i]f sustained and recorded ... could seriously damage the students' standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment"); *Than* , 901 S.W.2d at 930 ("A medical student charged with academic dishonesty faces not only serious damage to his reputation but also the loss of his chosen profession as a physician.... The stigma is likely to follow the student and preclude him from completing his education at other institutions.").

The liberty rationale in *Goss* was arguably dicta, as it was secondary reasoning provided after the Court first referenced Ohio state law to determine that public high-school students in that state had "legitimate claims of entitlement to a public education." 419 U.S. at 573, 95 S.Ct. at 735 (citing Ohio Rev. Code §§ 3313.48 and 3313.64 (1972 & Supp. 1973) ). The Court held that a 10-day suspension was a sufficiently significant intrusion on the students' state-law property right to attend school, *id.* at 576, 95 S.Ct. at 737, and that the Due Process Clause required that a student receive "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 present his side of the story." *Id.* at 581, 95 S.Ct. at 740. Later U.S. Supreme Court cases reviewing student dismissals have focused on the adequacy of process without confronting questions of whether a protected liberty or property interest had been implicated. *See**Regents of Univ. of Mich. v. Ewing* , 474 U.S. 214, 222-23, 106 S.Ct. 507, 511-12, 88 L.Ed.2d 523 (1985) ; *Bd. of Curators of Univ. of Mo. v. Horowitz* , 435 U.S. at 84-85, 98 S.Ct. at 952.

9

*Snyder v. Mass.* , 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (Cardozo, J.); *see also**Michael H. v. Gerald D.* , 491 U.S. 110, 122-23, 109 S.Ct. 2333, 2341-42, 105 L.Ed.2d 91 (1989) (Scalia, J., plurality op.). *Than* cited *Goss* , which quoted Justice Douglas's opinion in *Wis. v.Constantineau* , 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), for the proposition that "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." 400 U.S. at 437, 91 S.Ct. at 510 ; *see**Goss* , 419 U.S. at 574, 95 S.Ct. at 736 ; *Than* , 901 S.W.2d at 930. This language in the *Constantineau* opinion was not directly supported by legal authority, and the opinion included no analysis grounding the announced standard in legal history or tradition.

Notably, in *Constantineau* the plaintiff complained that, without notice or a hearing, a police chief caused a notice to be posted in all liquor stores in his town, stating that sales or gifts of liquors were forbidden to him for a year. 400 U.S. at 435, 91 S.Ct. at 509. This action was authorized by a state statute described by the court as providing "that designated persons may in writing forbid the sale or gift of intoxicating liquors to one who 'by excessive drinking' produces described conditions or exhibits specified traits, such as exposing himself or family 'to want' or becoming 'dangerous to the peace' of the community." *Id.* at 434, 91 S.Ct. at 508. Thus the nature of the reputational concern deemed to invoke constitutional protection as a liberty interest started with publication of a notice that branded a person as an excessive drinker and prevented him from buying liquor (*Constantineau* ), then expanded to include a high-school student expelled for 10 days for misconduct (*Goss* ) and a medical student dismissed for academy dishonesty (*Than* ). Villareal would have us expand this concept to a law student dismissed for poor academic performance without any suggestion of wrongdoing by the student.

10

419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

11

901 S.W.2d 926, 931 (Tex. 1995).

12

*See, e.g.* , *Alcorn v. Vaksman* , 877 S.W.2d 390, 397 (Tex. App.-Houston [1st Dist.] 1994, writ denied) (en banc) (citing *Ikpeazu v. Univ. of Neb.* , 775 F.2d 250, 253 (8th Cir. 1985) ).

13

Villareal's real complaint that Professor Maldonado gave an unfair advantage to some students is not based so much on the timing of the sessions as the preview of exam questions. Villareal did not allege that he was not given substantively similar opportunities to attend other review sessions where he could receive supplemental instruction conducted by Professor Maldonado or others. Nor did Villareal identify statutes, regulations, or even informal policies governing the extent to which instructors were precluded from "teaching to the test" in review sessions or otherwise (classroom instruction, office hours, etc.).

14

Read in the light most favorable to Villarreal, the petition suggests that administrators deployed junk science in an effort to assuage student concerns about the effect on the grade curve. There is no allegation of malice toward or discrimination against Villarreal or any identifiable group of students. The administrators could have consciously decided not to invest any greater effort into more rigorously evaluating the potential marginal effect Professor Maldando's review sessions had on an exam grade that was just one component of just one of many grades received by the first-year students. Maybe they wanted to shield Maldonado, themselves, and the institution from criticism. Maybe they just didn't know what to do and handled it poorly. In any case, Villarreal alleges no violation of a statute, regulation, or even informal policy in the handling of the matter.

15

*Cf.**Parratt v. Taylor* , 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981) (observing that although prisoner had been deprived of property under color of state law, "the deprivation did not occur as a result of some established state procedure").

16

*See, e.g.* , *Alcorn* , 877 S.W.2d at 397 ; *Alanis v. Univ. of Tex. Health Sci. Ctr.* , 843 S.W.2d 779, 784-85 (Tex. App.-Houston [1st Dist.] 1992, writ denied) ; *Eiland v. Wolf* , 764 S.W.2d 827, 833 (Tex. App.-Houston [1st Dist.] 1989, writ denied).

17

*Cruzan v. Dir., Mo. Dep't. of Health* , 497 U.S. 261, 300-01, 110 S.Ct. 2841, 2863, 111 L.Ed.2d 224 (1990) (Scalia, J., concurring).

18

*Cf.**Daniels v. Williams* , 474 U.S. 327, 332, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) ("Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society."); *Parratt* , 451 U.S. at 544, 101 S.Ct. at 1917 (observing that the Fourteenth Amendment was not intended to function as "a font of tort law to be superimposed upon whatever systems may already be administered by the States," quoting *Paul v. Davis* , 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976) ).

19

*See, e.g.* , *Ho v. Univ. of Tex. at Arlington* , 984 S.W.2d 672, 691 (Tex. App.-Amarillo 1998, pet. denied) (discussing fraudulent misrepresentation in context of dismissal of graduate student).

20

*See, e.g.* , *id.* at 683, 687-88 (discussing governmental and official immunity defenses to tort claims alleged in context of dismissal of graduate student). Notably, official immunity is conditioned on the individual defendant's "good faith" performance of discretionary duties within the scope of his authority. *See, e.g.* , *City of Lancaster v. Chambers* , 883 S.W.2d 650, 653 (Tex. 1994). The objective standard for good faith inquires "whether a reasonable official could have believed his or her conduct to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred." *McCartney v. May* , 50 S.W.3d 599, 605 (Tex. App.-Amarillo 2001, no pet.) (quoting *Chambers* , 883 S.W.2d at 653 ).

21

*E.g.* , *Mellinger v. City of Houston* , 68 Tex. 37, 3 S.W. 249, 252-53 (1887) ; *see also**Patel* , 469 S.W.3d at 84.

22

*Cf.* William J. Brennan, Jr., *State Constitutions and the Protection of Individual Rights* , 90 Harv. L. Rev. 489, 495 (1977).

23

*See, e.g.* , *Obergefell v. Hodges* , --- U.S. ----, 135 S.Ct. 2584, 2596-97, 192 L.Ed.2d 609 (2015) (discussing the role played by state courts, including decisions interpreting state constitutions, in helping to "explain and formulate the underlying principles" informing the U.S. Supreme Court's recognition of a constitutional right to same-sex marriage). Justice Kennedy's *Obergefell* opinion included two appendices listing state court decisions addressing or legalizing same-sex marriage. *See**id.* at 2610-11.

24

*Cf.* Sutton, *supra* note 3, at 177 ("There will never be a healthy 'discourse' between state and federal judges about the core guarantees in our American constitutions if the state judges merely take sides on the federal debates and federal authorities, as opposed to marshaling the distinct state texts and histories and drawing their own conclusions from them.").