T.T. Ex Rel. T.M. v. Bellevue School District , 376 F. App'x 769 ( 2010 )

FILED
NOT FOR PUBLICATION APR 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
T.T., by and through his guardian ad litem, No. 09-35330
T.M.,
D.C. No. 2:08-cv-00365-JCC
Plaintiff - Appellant,
v. MEMORANDUM*
BELLEVUE SCHOOL DISTRICT, a
Washington municipal corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted April 5, 2010
Seattle, Washington
Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.
Plaintiff T.T., by and through his mother T.M., appeals the adverse summary
judgment for Bellevue School District (“school district”), claiming procedural due
process violations arising from his fifty-five day school suspension. Finding the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
district court erred in its consideration of the role of state procedural requirements, we
remand for it to conduct that analysis in the first instance with the benefit of further
fact finding.
Based entirely on hearsay statements from individuals unaffiliated with the
school, T.T. was initially expelled and later suspended long-term for allegedly
smoking marijuana off campus. Accompanied by his mother, T.T. had two informal
meetings with school officials to discuss the charges, and he also received a formal
hearing followed by an appeal before Bellevue’s Disciplinary Appeals Council
(“DAC”). The school district made no effort to reveal the substance of the witness
statements, produce the witnesses, or have any school official with suspension
authority question them in person. T.T. thus claims he was effectively deprived of any
real ability to defend against the charges, including any opportunity to question and
confront witnesses at his hearing or appeal.
As a threshold consideration, we affirm the district court’s conclusion that T.T.
has a protected property interest in receiving a public education. See Goss v. Lopez,
419 U.S. 565, 573 (1975). However, the question the district court set aside, which
it should consider on remand, is whether the Washington Administrative Code (“the
Code”) gave T.T. a reasonable expectation of a protected entitlement because the
mandatory nature of the Code sections created a significant substantive restriction on
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the school district’s decision making. See Wedges/Ledges of California, Inc. v. City
of Phoenix, 24 F.3d 56, 62-63 (9th Cir. 1994) (“Wedges/Ledges”).
Relevant on remand are the two Code sections providing students with certain
procedures, which can, in some instances, entitle a student to “[q]uestion and confront
witnesses.” Wash. Admin. Code 392-400-315; 392-400-270. In particular, the Code
treats the procedures required differently depending on the type of appeal the school
district has chosen to provide, Wash. Admin. Code 392-400-315, and it is unclear
from the record which type of appeal the DAC was conducting. The record also is
unclear whether T.T. requested the opportunity to question or confront his accusers.
See Wash. Admin. Code 392-400-270(2)(c).
Once further fact finding has resolved these issues, the district court will be able
to consider whether T.T. had a property right in the process afforded under
Washington law. Violation of an administrative regulation “would not alone
constitute a denial of due process.” Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir.
1989). Nevertheless, “[a]lthough procedural requirements ordinarily do not transform
a unilateral expectation into a protected property interest, such an interest is created
if the procedural requirements are intended to be a significant substantive restriction
on . . . decision making.” Stiesberg v. State of Cal., 80 F.3d 353, 356 (9th Cir. 1996)
(quoting Wedges/Ledges, 24 F.3d at 62). “A protected property interest is present
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where an individual has a reasonable expectation of entitlement deriving from
‘existing rules or understandings that stem from an independent source such as state
law.’” Wedges/Ledges, 24 F.3d at 62 (quoting Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972)).
Finally, T.T.’s appellate briefs do not allege any error based on state law claims
independent of due process, and therefore any appeal of the state law claims is
waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Nor must we
decide whether the inability to cross-examine in these circumstances is a constitutional
violation in absence of the Washington regulations, where there remains a potentially
narrower ground, involving application of state law, for resolving the case. See
Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 184 (1999)
(“[W]e do not ordinarily reach out to make novel or unnecessarily broad
pronouncements on constitutional issues when a case can be fully resolved on a
narrower ground.”).
AFFIRMED in part, REVERSED in part, and REMANDED. Each party
shall bear its own costs on appeal.
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