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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20110
Summary Calendar
ALLAN THAN,
Plaintiff-Appellant,
versus
UNIVERSITY OF TEXAS MEDICAL SCHOOL AT HOUSTON;
M. DAVID LOW, Medical Doctor, Individually and in his Official
Capacity as President of the University; MARGARET C. McNEESE,
Medical Doctor, Individually and in her Official Capacity as
Associate Professor; DEAN OF STUDENT AFFAIRS,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
September 27, 1999
Before POLITZ, DAVIS, and WIENER, Circuit Judges.
POLITZ, Circuit Judge:
Allan Than is a former medical student at the University of Texas Health Science
Center at Houston. During his third year, two proctors observed him repeatedly looking at
another student's paper during a National Board of Medical Examiners' surgery examination.
A comparison of their examinations revealed identical answers to 88% of all questions
incorrectly answered. After a hearing, Than was expelled for academic dishonesty. He sued

in state court, challenging the sufficiency of the hearing. Ultimately, the Texas Supreme
Court ruled in his favor, concluding that although Than was afforded "a high level of due
process," his rights "were violated by his exclusion from a portion of the evidentiary
proceedings."1 To remedy the deficiency, the Texas Supreme Court ordered a new hearing
which resulted in a finding that Than had cheated on the examination. This decision was
affirmed by the President of the UT Health Science Center.
Alleging a violation of his federal constitutional due process rights, Than filed the
instant action. The trial court held that Than's claims against the UT Health Science Center
were precluded by the eleventh amendment; his claims against the individual defendants
were barred by the doctrine of qualified immunity; and his claims against those defendants
in their official capacities could not survive summary judgment under Fed. R. Civ. P. 56(c).
Our review of the record persuades that the trial court committed no reversible error.
In so concluding, we rely largely on the trial court's thorough legal analysis. We briefly
address, however, the contentions advanced by Than on appeal.
Contrary to Than's insistence, any defects of the first hearing are irrelevant; the Texas
Supreme Court specifically held that any such defects would be cured by a second hearing.
Our focus on this appeal are the procedural protections afforded Than in the second hearing.
In a shotgun approach Than contends that the second hearing fell below the standard
required by due process. As defendants correctly note, his complaint is concerned less with
1University of Texas v. Than, 901 S.W.2d 926, 931-32 (Tex. 1995).
2

process than with substance. Than received ample notice of the charges and the evidence.
The hearing officer, a professor at a different medical school, obviously was knowledgeable.
He also was impartial; Than does not suggest otherwise. At the hearing, Than was
represented by counsel, who called nine witnesses and introduced more than three score
exhibits; cross-examined all adverse witnesses; and made an opening statement and closing
argument. The UT Health Science Center offered the testimony of the proctors who had
observed Than during the examination, and the testimony of a former director of testing
services for the National Board of Medical Examiners who supported the statistical analysis
relied upon by the UT Health Science Center. After considering testimonial and
documentary evidence offered by both parties, the hearing officer rendered a well-reasoned
and even-handed written opinion which we find supported by substantial evidence. We
entertain no doubt that Than suffered no federal due process deprivation.2 The academic
institution made a reasoned judgment after a deliberate process in the sphere in which it is
expert.
The appellate issue of qualified immunity is rendered moot by our conclusion that
defendants did not violate any of Than's federal due process rights.
The judgment appealed is in all respects AFFIRMED.
2The contours of the federal due process right are fleshed out in Mathews v.
Eldridge, 424 U.S. 319 (1976); Goss v. Lopez, 419 U.S. 565 (1975); Jenkins v. Louisiana
State Bd. of Educ., 506 F.2d 992 (5th Cir. 1975); Ferguson v. Thomas, 430 F.2d 852 (5th
Cir. 1970).
3