Lindsey et al v. Matayoshi et al

Filing 79

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re 60 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/18/13. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HEATHER LINDSEY and GEREMY
K. LOPEZ, individually and as
Guardians Ad Litem for RFL, their
minor daughter,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
KATHRYN S. MATAYOSHI in her
)
official capacity as State Superintendent, )
Department of Education; KANU O KA )
‘AINA NEW CENTURY PUBLIC
)
CHARTER SCHOOL; PAT BERGIN; )
ALLYSON TAMURA; KEOMAILANI )
CASE; JOHN and/or DOES 1-20; DOE )
CORPORATIONS 1-10; DOE NON- )
PROFIT CORPORATIONS 1-10; and )
DOE GOVERNMENTAL ENTITIES 1- )
10,
)
)
Defendants.
)
________________________________ )
)

CIVIL NO. 11-00713 JMS-KSC
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
I. INTRODUCTION
On November 28, 2011, Plaintiffs Heather Lindsey (“Lindsey”) and
Geremy K. Lopez, individually and as guardians ad litem for RFL, their minor

1

daughter, (collectively, “Plaintiffs”), filed this action against Kathryn S. Matayoshi
in her official capacity as State Superintendent, Department of Education
(“Matayoshi”); Kanu O Ka ‘Aina New Century Public Charter School (“Kanu”);
and Pat Bergin (“Bergin”), Allyson Tamura (“Tamura”), and Keomailani Case
(“Case”) in their official and individual capacities (collectively, “Defendants”).1
RFL was suspended and later expelled from Kanu, a charter school on the Big
Island. Plaintiffs now assert, among other things, that RFL’s expulsion violated
their due process rights pursuant to the United States and State of Hawaii
Constitutions.
Currently before the court is Defendants’ Motion for Summary
Judgment, in which they argue that Plaintiffs’ claims are barred by the Eleventh
Amendment and/or fail as a matter of law. Based on the following, the court finds
that Plaintiffs’ due process and state law claims for damages are barred by the
Eleventh Amendment, and that Plaintiffs’ due process claim for injunctive relief
fails because Plaintiffs were not deprived of a constitutionally-protected interest.
As a result, Defendants’ Motion for Summary Judgment is GRANTED on all
claims.

1

On January 11, 2013, the parties stipulated to dismissal of all claims against
Defendants Bergin, Tamura, and Case in their individual capacities. Doc. No. 56. Thus, claims
against these three Defendants remain in their official capacities only.
2

II. BACKGROUND
A.

Factual Background
Plaintiffs enrolled their fourteen-year-old daughter RFL at Kanu for

the 2011-2012 school year.2 See Doc. No. 61, Defs.’ Concise Statement of Facts
(“CSF”) ¶ 3.3 Upon enrollment, RFL and Lindsey received a copy of Kanu’s
handbook, which sets forth Kanu’s “no tolerance” policy toward bullying, teasing,
taunting, and name calling. Id. ¶¶ 3-5. The handbook also explained that abusive
language, harassment, cyberbullying, and fighting were prohibited. Id. ¶ 6. RFL
committed in writing that she would follow Kanu’s behavior expectations, and
treat every member of the Kanu “ohana with aloha and respect at all times.” Id.
¶ 8.
In late August 2011, a Kanu staff member met with RFL and Lindsey
regarding several text messages RFL sent to another Kanu student. Id.
¶ 9. During this meeting, the Kanu staff member reminded RFL that Kanu’s rules
2

During all times relevant to this action, the law applicable to charter schools was found
in Hawaii Revised Statutes (“HRS”) Chapter 302B. Effective June 19, 2012, Chapter 302B was
repealed and replaced with Chapter 302D. 2012 Haw. Sess. Laws, ch. 130, §§ 2, 16.
As a charter school, Kanu has been given “the flexibility and independent authority to
implement alternative frameworks with regard to curriculum, facilities management,
instructional approach, virtual education, length of the school day, week, or year, and personnel
management.” HRS § 302 B-1. Although governed by an autonomous local school board, HRS
§ 302B-7(c), the Hawaii Department of Education (“DOE”) maintains responsibility for
providing a free education to all students, including those in a charter school. HRS § 302B-15.
3

Where Plaintiffs do not dispute a particular fact, the court cites directly to Defendants’

CSF.
3

prohibited threatening, bullying or teasing other students through social media. Id.
¶ 10.
On October 18, 2011, RFL got into an altercation at Kanu with a
female schoolmate (not the same female involved in the August 2011 email
incident). Id. ¶ 11. Each girl struck the other at least once. Doc. No. 61-5, Pls.’
Resp. to Defs.’ First Req. for Admis. ¶ 19. That day, Kanu administrators met with
RFL and Lindsey at which time RFL did not dispute that she fought with the other
girl and that such behavior was inappropriate and prohibited by Kanu’s rules. Doc.
No. 61, Defs.’ CSF ¶ 12. Kanu administrators instructed both RFL and the other
girl not to escalate the dispute by texting or posting on Facebook or other social
media and issued two-day suspensions to both girls. Id. ¶ 13.
Despite this warning, within minutes RFL posted comments on her
Facebook page regarding the fight and the other girl. Id. ¶ 14. These posts were in
response to inquiries from her friends. Doc. No. 61-5, Pls.’ Resp. to Defs.’ First
Req. for Admis. ¶ 30. The posts included the following: (1) “Talk shit, spit blood
BITCH! Ha, classic;” (2) in response to a question by a Facebook friend about
whether there would be a “Round 2,” RFL responded “We see ;) haha not in school
again, bumbai gta go pull weeds lmao;” (3) “stupid bitches like to tlk shit too
much, haha;” and (4) “ill [] be back Friday! and yeah, psh. that dumb bitch aint

4

done with HER! ahaha.” Doc. No. 61-6, Decl. of Allyson Tamura ¶ 13; Doc. No.
61-9 Defs.’ Ex. D; Doc. No. 61-5, Defs.’ Ex. I ¶ 31.
The next day, a Kanu administrator met with RFL and Lindsey to
discuss the posts, which RFL admitted she had made. Doc. No. 61, Defs.’ CSF
¶¶ 17-18. During that meeting, the Kanu administrator told RFL and Lindsey that
Kanu “did not appear to be a good fit for RFL and that Kanu would assist in
transferring RFL to another school of the Lindseys’ choosing.” Id. ¶ 19. In
response to Lindsey’s request that Kanu reconsider this decision, the administrator
agreed to take the request under consideration. Id. ¶ 20.
After the October 19 meeting, RFL again posted comments on her
Facebook page regarding the other girl, including calling her “a jap.” Id. ¶ 21. On
October 20, after reviewing the additional postings, Kanu administrators decided
not to reconsider the decision to release RFL from Kanu and called Lindsey to
convey this decision. Id. ¶¶ 22-23. During this conversation, a Kanu administrator
discussed several options for continuing RFL’s education, including nearby public
and private high schools as well as home schooling, and offered to assist in the
transition of RFL to the school of Plaintiffs’ choice. Id. ¶ 23.
Thereafter, following a request from Lindsey, Kanu’s Local School
Board (“LSB”) called a special meeting on November 2, 2011, during which

5

Plaintiffs discussed their concerns and asked the LSB to overturn Kanu’s decision
to release RFL from Kanu. Id. ¶ 24. During this meeting,4 Plaintiffs did not
dispute that RFL had fought with another student and later posted comments about
the fight and the student on Facebook. Id. ¶ 25. Thereafter, the LSB voted to
uphold the decision to release RFL from Kanu. Id. ¶ 26.
Kanu administrators repeatedly offered Lindsey assistance in
transferring RFL to another school to finish the 2011-12 school year and discussed
several options. Id. ¶ 27. At no time was RFL precluded from transferring to a
Hawaii public high school. Id. ¶ 28. In fact, Plaintiffs were offered the option of
enrolling at Honokaa High School, Kealakehe High School or Kohala High
School. Id. Plaintiffs declined to enroll RFL in any of these three public high
schools. Id. ¶ 29.
B.

Procedural Background
On November 28, 2011, Plaintiffs filed their Complaint against

Defendants asserting claims for violation of their due process rights pursuant to the
United States and Hawaii State Constitutions, violation of Hawaii Administrative
4

The parties dispute whether this was a meeting or hearing. Compare Doc. No. 61,
Defs.’ CSF ¶ 25 (characterizing it as a hearing), with Doc. No. 71, Pls.’ CSF ¶ 25 (stating it was
not a hearing); see Doc. No. 71-5, Pls.’ Ex. D, Deposition of Pat Bergin (characterizing this
event as both a hearing and a meeting). Plaintiffs contend that they never received a formal
hearing in connection with RFL’s expulsion from Kanu. Doc. No. 71, Pls.’ CSF ¶ 34; see Doc.
No. 71-5, Pls.’ Ex. D, Deposition of Pat Bergin (conveying details about the nature of the event).
6

Rules (“HAR”), and intentional and negligent infliction of emotional distress
(“IIED” and “NIED,” respectively). Plaintiffs seek injunctive relief and monetary
damages.
On February 15, 2013, Defendants filed their Motion for Summary
Judgment. Doc. No. 60. Plaintiffs filed an Opposition on May 3, 2012, Doc. No.
71, and Defendants filed a Reply on May 10, 2012. Doc. No. 72. A hearing was
held on May 20, 2013. Both parties filed supplemental briefs on June 5, 2013.
Doc. Nos. 75 & 76.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine

7

issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn

8

in his favor” (citations omitted)).
IV. DISCUSSION
Defendants seek summary judgment on all claims, contending that
Plaintiffs’ due process claims are barred by Eleventh Amendment immunity and
that Plaintiffs were not deprived of any constitutional rights. Alternatively,
Defendants contend that even if Plaintiffs were denied a constitutional right, the
process provided was adequate. Finally, Defendants contend that the state law
claims fail as a matter of law. The court addresses each argument in turn.
A.

Eleventh Amendment Immunity
1.

Legal Framework
The doctrine of sovereign immunity applies when claims are asserted

against a state in federal court. The Eleventh Amendment provides:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
U.S. Const. amend. XI. Pursuant to the Eleventh Amendment, states cannot be
sued in federal court, whether by their own citizens or citizens of another state.
Papasan v. Allain, 478 U.S. 265, 275 (1986); Hans v. Louisiana, 134 U.S. 1
(1890). Similarly, a suit for damages against state officials, in their official

9

capacity, constitutes a suit against the state itself and therefore is barred by the
Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985).
Although state officials are literally persons, “a suit against a state official is not a
suit against the official but rather is a suit against the official’s office.” Will v.
Mich. Dep’t State Police, 491 U.S. 58, 71 (1989) (citing Brandon v. Holt, 469 U.S.
464, 471 (1985)). “As such, [a suit against a state official] is no different from a
suit against the State itself.” Id.
States and state officials may, however, be held to answer for damages
in federal court in three limited circumstances: where the state waives its sovereign
immunity, where Congress expressly abrogates state sovereign immunity with
respect to a particular federal cause of action, and where Congress creates a
statutory scheme under which states are the only possible defendants. Alaska v.
EEOC, 564 F.3d 1062, 1081-82 (9th Cir. 2009); see also Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1991) (noting that
Eleventh Amendment immunity is waivable); Quern v. Jordan, 440 U.S. 332, 342
(1979) (holding that Congress may abrogate Eleventh Amendment immunity in
certain circumstances).
Further, Ex parte Young, 209 U.S. 123, 159-60 (1908), held that the
Eleventh Amendment does not bar a suit to enjoin the unconstitutional actions of a

10

state official. Young held that a state official who acts in violation of federal law,
though sued in his or her official capacity, is “stripped of his official or
representative character” because “the state has no power to impart to him any
immunity from responsibility to the supreme authority of the United States.” Id.
The Supreme Court has limited the Young exception to suits for prospective relief
against ongoing violations of federal law. Papasan, 478 U.S. at 277-78. Thus,
relief that “serves directly to bring an end to a present violation of federal law is
not barred by the Eleventh Amendment[.]” Id. at 278 (citing Milliken v. Bradley,
433 U.S. 267, 289-90 (1977)).
2.

Whether Defendants Are State Agencies or State Officials
Plaintiffs concede that Defendant Matayoshi, as Superintendent of the

Department of Education (“DOE”), is a state official, but contend that the
remaining Defendants are not state agencies or officials. Plaintiffs argue that
Defendant Kanu is a “privately operated entity,” and therefore cannot assert
sovereign immunity pursuant to the Eleventh Amendment. Plaintiffs further
contend that Defendants Bergin, Tamura, and Case, officials of Kanu and/or
Kanu’s LSB, are not state officials and cannot invoke Eleventh Amendment
immunity. Plaintiffs are mistaken.
The Ninth Circuit has set forth five factors to determine whether an

11

entity is an arm of the state for purposes of Eleventh Amendment immunity:
[1] whether a money judgment would be satisfied out of
state funds, [2] whether the entity performs central
governmental functions, [3] whether the entity may sue
or be sued, [4] whether the entity has the power to take
property in its own name or only the name of the state,
and [5] the corporate status of the entity.
Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1989). These factors
are analyzed by looking at how state law treats the entity. Id.; Regents of the Univ.
of Cal. v. Doe, 519 U.S. 425, 429 n.5 (1997) (stating that the question whether an
entity is an arm of the state “can be answered only after considering the provisions
of state law that define the agency’s character”).
As a starting point, Hawaii law governing public charter schools
generally identifies them as state entities. See HRS § 302B-1 (“‘Charter schools’
refers to those public schools holding charters to operate as charter schools[.]”);
see also HRS § 302B-9(d) (characterizing charter schools as “public schools and
entities of the state”); Waters of Life Local Sch. Bd. v. Charter Sch. Review Panel,
126 Haw. 183, 189, 268 P.3d 436, 442 (Haw. App. 2011) (finding a charter
school’s local school board to be an arm of the state because it, along with the
charter school, is part of the charter school system which is administratively
attached to the DOE, thus entitling it to the “same sovereign immunity available to
the State”).
12

Application of the Mitchell factors confirms that charter schools are
state agencies for purposes of Eleventh Amendment immunity.
The first Mitchell factor is the most crucial and has been refined to a
determination of whether the state would be legally liable for a judgment against
the entity. Eason v. Clark Cnty. Sch. Dist., 303 F.3d 1137, 1141 (9th Cir. 2002);
see Regents of the Univ. of Cal., 519 U.S. at 431 (“[I]t is the entity’s potential legal
liability, rather than its ability or inability to require a third party to reimburse it, or
discharge the liability in the first instance, that is relevant.”); see also Durning v.
Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) (“The relevant question is
whether the state would have a legal liability to pay the judgment, not whether the
defendant entity would have the practical ability to pay it.”)
The State of Hawaii is unique -- it vests the state, as opposed to local
or county government, with the obligation to educate its populace: “Hawaii is the
only state in the nation that has placed the primary responsibility for public
education on the state itself. It does not operate public schools through smaller
local districts.” Michael P. v. Dep’t of Educ., 656 F.3d 1057, 1070 (9th Cir. 2011)
(Clifton, J., dissenting). Pursuant to the Hawaii State Constitution, “[t]he State
shall provide for the establishment, support and control of a statewide system of
public schools[.]” Haw. Const. art. 10, § 1. And “public schools” include “all

13

academic and noncollege type schools established and maintained by the
department and charter schools chartered by the board in accordance with law.”
HRS § 302A-101 (emphasis added).5 Payment of judgments against the public
schools is subject to legislative appropriation. See Haw. Const. art. 7, § 5
(“Provision for the control of the rate of expenditures of appropriated state moneys
. . . shall be made by law. No public money shall be expended except pursuant to
appropriations made by law.”). Each year, the Department of the Attorney General
submits requests for appropriations to the state legislature for money to cover
settlement and judgment debts that the public schools are unable to fund from any
other source. See Doc. No. 75-3, Decl. of Monica T.L. Morris ¶¶ 4-5. Considering
the structure of Hawaii state charter schools, along with the Constitution and laws
of the state, the court concludes that because charter schools are part of the state’s
public school system, legal liability for a judgment against Kanu rests with the
State of Hawaii, regardless of Kanu’s ability to pay the judgment. Accordingly,
the first Mitchell factor supports a finding that Kanu is a state entity.
The remaining Mitchell factors also support a finding that Kanu is an
5

Charter schools are funded through the DOE in accordance with the funding scheme
applied to all other public schools -- they receive a baseline per-pupil allocation, subject to
legislative appropriation and reductions imposed by the governor, HRS § 302B-12(a), and are
“eligible for all federal financial support to the same extent as all other public schools.” HRS
§ 302B-12(b). Charter schools are authorized to generate additional funds and may disperse
those funds without state oversight, HRS § 302B-12(b), but may not assess tuition. HRS
§ 302B-12(e).
14

arm of the state. Plaintiff concedes the second factor -- that Kanu performs a
central governmental function by providing educational services. As to the third
factor, Hawaii law expressly prohibits charter schools from bringing “suit against
any . . . entity or agency of the State.” HRS § 302B-9(d). Regarding the fourth
factor, Plaintiff contends that Kanu owns property in its own name, but fails to
provide any evidence to support that contention. Conversely, Hawaii law provides
that individual public schools lack authority to purchase real property, but the DOE
may acquire facilities for public schools, including land, “with the concurrence of
the director of finance.” HRS § 302A-1506. Furthermore, if a charter school
dissolves or a charter is revoked, “the State shall have first right, at no cost to the
State, to all the assets and facilities of the charter school[.]” HRS
§ 302B-14(I). Thus, the fourth factor supports a finding that Kanu is a state entity.
Finally, as to the fifth factor, Kanu does not appear to have an independent
corporate status. It is not registered with the Internal Revenue Service as a
501(c)(3) non-profit organization, nor has it filed its own tax return as any other
type of independent entity. See Doc. No. 75-1, Decl. of Taffi Wise ¶¶ 10-11.
Plaintiff relies on Holz v. Nenana City Public School District, 347
F.3d 1176 (9th Cir. 2003), and Eason in which the Ninth Circuit determined that
school districts in Alaska and Nevada are not arms of the state. Neither case is

15

persuasive. Under Alaska law, because municipalities are responsible for
providing public education, school districts are deemed arms of municipalities
rather than the state. Holz, 347 F.3d at 1187. Furthermore, Alaska law “explicitly
provides that ‘[t]he state is not responsible for the debts of a school district.’” Id.
at 1182 (quoting Alaska Stat. § 14.17.900(a)). And unlike Hawaii’s state-wide
educational system, Nevada has multiple, county-governed public school districts,
each of which receives a guaranteed minimum of state funds determined by a perpupil calculation and generates additional funds through tax revenues collected at
the local, county level. Eason, 303 F.3d at 1142-43 (citing Nev. Rev. Stat.
§§ 387.121-22, 387.1233). Eason addressed which public entity bears the ultimate
legal liability for public school debt -- the local, county-wide school district or the
State of Nevada. Eason concluded that under Nevada law “it is not necessarily
true that an amount withdrawn from a school district’s account in order to pay a
judgment will be replaced with state money.”6 Id. Ultimately, Eason ruled that the
defendants could not “demonstrate that the State of Nevada bears a legal obligation
6

Eason compared Nevada law to that of California, explaining that the State of
California “‘sets a revenue limit for each school district[.] . . . In short, the state determines the
amount of money that schools districts may spend per pupil and then provides the necessary state
funds.’ By virtue of this revenue limit system, ‘state and local revenue is commingled in a single
fund under state control, and local tax revenue lost to a judgment must be supplanted by the
interchangeable state funds already in the district budget.’ Thus, in California, ‘any use of the
commingled funds is a use of state funds.’” Eason, 303 F.3d at 1142 (quoting Belanger v.
Madera Unified Sch. Dist., 963 F.2d 248, 252 (9th Cir. 1992) (granting Eleventh Amendment
immunity to California school districts)).
16

to satisfy any adverse judgment against the District.” Id.
Under Hawaii law, state funds are similarly distributed among public
schools in accordance with a per-pupil calculation,7 and charter schools are
authorized to generate additional funds and may disperse those funds without state
oversight.8 However, unlike Eason, there is no local governmental entity or school
district between individual charter schools and the state. The Hawaii DOE is the
state. Defendants provided evidence that when the public schools, which include
Kanu, fall short of funds to satisfy legal judgments, the legal responsibility for
payment rests with the state, not the LSB. Moreover, additional statutory
provisions governing charter schools further support the conclusion that Hawaii
public charter schools are creatures of Hawaii law that are subject to the
supervision and control of the state and exist at the discretion of the state. See,
e.g., HRS § 302B-4 (limiting the number of charter schools that may be established
each year); HRS § 302B-3 (placing the entity charged with authorizing and
evaluating charter schools within the DOE).
Accordingly, the court finds that Defendant Kanu is a state entity and
Defendants Matayoshi, Bergin, Tamura and Case, named in their official
7

See HRS 302B-12(a)(2) (applying per-pupil funding scheme in public schools to
charter schools).
8

See HRS 302B-12(b) (providing that “additional funds generated by the local school
boards . . . may be expended at the discretion of the local school boards”).
17

capacities, are state officials.
And the state has not waived its immunity. A state’s consent to waive
sovereign immunity must be expressed unequivocally. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 99 (1984). The State of Hawaii has not waived
its sovereign immunity for civil rights actions brought in federal court. See
Linville v. Hawaii, 874 F. Supp. 1095, 1103 (D. Haw. 1994). Nor has Congress
abrogated sovereign immunity for civil rights claims asserted pursuant to 42 U.S.C.
§ 1983. See Will, 491 U.S. at 65-66; see also Sherez v. Haw. Dep’t of Educ., 396
F. Supp. 2d 1138, 1142-43 (D. Haw. 2005) (dismissing claims against the DOE
and against state official in his official capacity based on Eleventh Amendment
immunity).
Thus, Eleventh Amendment immunity bars Plaintiffs’ due process
claims for damages against State Defendants. The court now turns to the claim for
injunctive relief.
B.

Due Process Claims for Injunctive Relief
Plaintiffs seek to enjoin Defendants from continuing to deny RFL a

free public education without a hearing. During the hearing on this Motion,
Plaintiffs expressed a continuing desire for RFL to return to Kanu.
“A procedural due process claim has two elements: deprivation of a

18

constitutionally-protected liberty or property interest, and denial of adequate
procedural protection.” Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of
Higher Educ., 616 F.3d 963, 970 (9th Cir. 2010) (citing Brewster v. Bd. of Educ. of
the Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)). Defendants
argue that neither element of Plaintiffs’ due process claim is met because RFL was
not denied any protected interest in her public education and in any event, the
procedure provided for her expulsion was adequate.
1.

Defendants Did Not Deprive Plaintiffs of a Protected Interest
In general, Hawaii students have a protected interest in their public

education. “Property interests are not created by the Constitution, ‘they are created
and their dimensions are defined by existing rules or understandings that stem from
an independent source such as state law . . . .’” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538 (1985) (quoting Bd. of Regents v. Roth, 408 U.S.
564, 577 (1972)). Because the State of Hawaii provides schooling for all children
between the ages of six and eighteen, see HRS § 302A-1132, RFL has a property
interest in her education. See, e.g., Goss v. Lopez, 419 U.S. 565, 574 (1975)
(holding that a student has a property interest in her education where Ohio created
free education for residents between the ages of five and twenty-one).
Although the Ninth Circuit has not addressed the precise issue

19

presented in this action, other courts have held that an entitlement to public
education does not include the right to attend a particular school. Specifically, “a
student who is removed from her regular public school, but is given access to an
alternative education program, has not been denied her entitlement to public
education.” Swindle v. Livingston Parish Sch. Bd., 655 F.3d 386, 394 (5th Cir.
2011); Buchanan v. City of Bolivar, Tenn., 99 F.3d 1352, 1359 (6th Cir. 1996)
(explaining that a student “may not have procedural due process rights to notice
and an opportunity to be heard when the sanction imposed is attendance at an
alternative school absent some showing that the education received at the
alternative school is significantly different from or inferior to that received at his
regular public school”); Zamora v. Pomeroy, 639 F.2d 662, 669-70 (10th Cir.
1981) (determining no due process violation absent a showing that the alternate
school was so significantly inferior that it amounted to expulsion from the
educational system); Thorns v. Madison Dist. Pub. Schs., 2007 WL 1647889, at *4
(E.D. Mich. June 5, 2007) (determining no deprivation of property interest where
students suspended for 180 days were offered transfer to different school with
stricter policies).
Additionally, an entitlement to public education does not include the
right to a particular kind of education or curriculum. Nevares v. San Marcos

20

Consol. Indep. Sch. Dist., 111 F.3d 25, 26-27 (5th Cir. 1997); Mitchell v.
Beaumont Indep. Sch. Dist., 2006 WL 2092585, at *9 (E.D. Tex. July 25, 2006)
(explaining that a student has no right to direct, control, or determine her
curriculum, or to “receive a public education on special terms or conditions
designated by herself or her parents”). Nor is a student deprived of an education
when attendance at an alternative school is rejected in lieu of suspension. Foster v.
Tupelo Pub. Sch. Dist. 569 F. Supp. 2d 667, 675 (N.D. Miss. 2008).
The parties do not dispute that immediately after informing Plaintiffs
that RFL would not be permitted to return, Kanu administrators offered assistance
in transferring RFL to another school. Nor do the parties dispute that Kanu
administrators continued to offer such assistance. Plaintiffs were offered the
option of transferring RFL to Honokaa, the public high school for her district, or to
Kealakehe or Kohala High Schools, the other two public high schools on the Big
Island.
Plaintiffs declined transfer to any of the three public high schools
offered by Defendants. And transfer to a different school does not by itself
constitute a deprivation of education -- instead, there must be a showing that the
alternative school is significantly inferior to Kanu. But Plaintiffs fail to offer facts
to establish a genuine dispute regarding the inferiority of the alternative high

21

schools. Instead, they offer unsupported allegations: (1) they “were unable to
enroll RFL in Honokaa School because of safety considerations due to a prior
bullying incident with other students there;” (2) they “declined to enroll RFL at
either Kohala High School or Kealakehe High School because of the distances and
lengthy travel times to and from those schools;” and (3) “[a]ttendance at any of the
three ‘local’ public schools would have resulted in a vastly different educational
experience in much larger classes without the cultural education to which partHawaiian RFL was exposed at Kanu.” Doc. No. 71, Pls.’ CSF ¶¶ 35-37.
Plaintiffs utterly fail to provide an evidentiary basis to support these
allegations. The sole evidence provided is counsel’s declaration containing vague
and/or conclusory statements. See Doc. No. 70-1, Decl. of Eric A. Seitz ¶ 9
(vaguely referencing a “‘bullying’ situation in which [RFL] was victimized at an
earlier age by other students who now attend school at Honokaa”); see also id.
¶ 10 (stating that “placements [at Kealakehe] or Kohala [] would have required
[RFL] to spend between two and three hours each day travelling back and forth to
school”); id. ¶ 11 (stating that “enrollment of [RFL], who is part-Hawaiian, in any
of the three proposed public high schools would have resulted in a vastly different
educational experience in much larger classes without any of the cultural values
and opportunities available to her at a smaller charter or private school such as

22

Kanu”). This will not suffice. Rule 56(c)(4) provides that a “declaration used to
support or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the . . . declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4); see Bank Melli Iran v.
Pahlavi, 58 F.3d 1406, 1412 (9th Cir. 1995) (rejecting declarations of counsel
because counsel “did not have personal knowledge”); see also Boyd v. City of
Oakland, 458 F. Supp. 2d 1015, 1024 (N.D. Cal. 2006) (stating that the “matters
must be known to the declarant personally, as distinguished from matters of
opinion or hearsay”). Counsel’s statements are hearsay and obviously are not
based on his own “personal knowledge,” and therefore, are accorded no weight.
Accordingly, Plaintiffs failed to establish a material issue of fact regarding the
inferiority of the three public schools.
Moreover, even if Plaintiffs had provided sufficient evidentiary
support for these specific allegations, the allegations do not raise a material issue of
fact regarding whether transfer to any of the three public high schools would be
significantly inferior to Kanu. For example, Plaintiffs fail to allege any facts
showing that a transfer to Honokaa, even considering a possible safety issue,
would be significantly different or inferior to Kanu. And in any event, even if
attending Honokaa was equivalent to a deprivation of education, Plaintiffs were

23

offered other educational options.
Additionally, Plaintiffs’ other reasons for rejecting enrollment at any
of the three public high schools -- increased travel time, lack of the Hawaiian
cultural values and opportunities provided by Kanu, and increased class size -- do
not constitute a material issue of fact. Plaintiffs do not have a protected interest in
the cultural values and opportunities available at Kanu. See Nevares, 111 F.3d at
26-27 (determining that students have no right to a particular kind of education or
curriculum). Nor do they have a protected interest in smaller class sizes or
attending a school closer to home. See Mitchell, 2006 WL 2092585, at *9
(explaining that a student has no right to “receive a public education on special
terms or conditions designated by herself or her parents”). Plaintiffs merely
alleged that two of the proposed high schools were distant, suggesting
inconvenience rather than lack of access to an education.
Plaintiffs’ rejection of all offered alternative public schools, in lieu of
no schooling, does not constitute a deprivation of education. Accordingly, the
court finds that Plaintiffs were not deprived of a constitutionally-protected property
interest in public education. Absent such a deprivation, Plaintiffs were not entitled
to any procedural due process protections in connection with RFL’s expulsion
from Kanu.

24

2.

State Due Process Claims
Plaintiffs appear to assert their § 1983 claim for violation of due

process pursuant to not only the Constitution of the United States, but also the
Hawaii state constitution and HAR. But to state a due process claim under § 1983,
there must be a deprivation of federal constitutional or statutory rights. Paul v.
Davis, 424 U.S. 693, 700 (1976) (noting that not every state constitutional or
regulatory right becomes a constitutional entitlement); San Bernardino Physicians’
Servs. Med. Grp. v. Cnty. of San Bernardino, 825 F.2d 1404, 1408-09 (9th Cir.
1987) (“[F]ederal constitutional law determines whether that interest rises to the
level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.”)
(quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978) (quoting
Roth, 408 U.S. at 577)). Alleging violations of the state constitution, regulations,
administrative rules, or other state law is not sufficient to state a claim for relief
under § 1983. Cornejo v. Cnty. of San Diego, 504 F.3d 853, 855 n.3 (9th Cir.
2007) (noting that “a claim for violation of state law is not cognizable under §
1983”); Oyama v. Univ. of Haw., 2013 WL 1767710, at *13 (D. Haw. Apr. 23,
2013) (finding that Ҥ 1983 claims based on the Hawaii State Constitution fail as a
matter of law”).
Accordingly, Defendants are entitled to summary judgment on

25

Plaintiffs’ § 1983 due process claims.
C.

Eleventh Amendment Bars State Law Tort Claims
The Eleventh Amendment bars claims for damages against

Defendants unless the state waives its sovereign immunity. See Coll. Sav. Bank,
527 U.S. at 675. Although Hawaii has waived its sovereign immunity as to some
state tort and statutory claims, it has done so solely with respect to state court
actions. HRS § 662-3 states that “circuit courts of the State and . . . the state
district courts shall have original jurisdiction of all tort actions on claims against
the state.” HRS § 661-1 similarly grants the state courts jurisdiction over “[a]ll
claims against the State founded upon any statute of the State[.]” Nothing in the
language of these statutes suggests that Hawaii intended to subject itself to suit in
federal court.
Moreover, the Hawaii Legislature has specifically declared that it
intended §§ 662-3 and 661-1 to extend jurisdiction to state courts, but not to
federal courts. See Act 135 of 1984 Session Laws of Hawaii; see also Office of
Hawaiian Affairs v. Dep’t of Educ., 951 F. Supp. 1484, 1491 (D. Haw. 1996)
(discussing both plain language and legislative intent and holding that §§ 661-1
and 662-2, which waived the state’s immunity for torts committed by its
employees, do not waive the state’s Eleventh Amendment immunity). Defendants

26

are therefore entitled to Eleventh Amendment immunity on these state claims.
V. CONCLUSION
As set forth above, the court finds that Plaintiffs’ due process and
state law claims for damages are barred by the Eleventh Amendment and that
Plaintiffs’ due process claim for injunctive relief fails because Plaintiffs were not
deprived of a constitutionally protected interest. Defendants’ Motion for Summary
Judgment is GRANTED on all claims. The Clerk of Court is directed to close this
case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 18, 2013.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Lindsey et al. v. Matayoshi et al., Civ. No. 11-00713 JMS-KSC, Order Granting Defendants’
Motion for Summary Judgment

27