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Nieshe v. Concrete School District


We are asked to decide whether the superior court erred by sustaining a jury verdict in favor of Jennifer Nieshe on a 42 U.S.C. sec. 1983 claim, under which she argued that the Concrete School District denied her due process when it arbitrarily and capriciously excluded her from participating in a high school graduation ceremony. We conclude that the court erred, and reverse. Nieshe did not have a cognizable right under sec. 1983 because participation in a graduation ceremony is not a life, liberty, or property interest protected by the Due Process Clause of the Federal Constitution.


Jennifer Nieshe (formerly Jennifer Past) became pregnant during her senior year at Concrete High School. In order to graduate, Nieshe had to pass a course called 'Current World Problems' (CWP). Students needed a grade of D, or 60 percent, to pass CWP.

During the second half of the last semester, when Nieshe was already several months pregnant, her grade in CWP fell below her previous C minus average. The final exam consisted of two quizzes worth 50 points each. Nieshe received 22 percent on the first quiz. Her teacher, Janis Schweitzer, warned Nieshe that she was in danger of failing CWP, and told her that she needed at least a B on the final quiz in order to pass the class and graduate. Nieshe took the second quiz the day before graduation and received a C, which gave her a grade for the semester of 58.8 percent.

The next morning, on the day of graduation, Principal William Giller met with Nieshe, Schweitzer, and Nieshe's mother to determine whether Nieshe had been treated fairly. Giller reviewed Schweitzer's records and concluded that Nieshe's grade could not be raised to 60 percent under the class grading policy. Giller told Nieshe that she would not graduate just hours before the ceremony was scheduled to begin. Nieshe was not permitted to participate in the graduation ceremony.

The following month, Dr. Marie Phillips became superintendent of Concrete School District. Nieshe's parents contacted Dr. Phillips and informed her of Nieshe's situation. She met with the family and suggested that the school could use a 504 plan to increase Nieshe's grade in CWP. A 504 plan is a type of special education plan, which is applied to students with temporary or permanent disabilities. The plan is not routinely used for pregnant students, but could properly be applied. Dr. Phillips drafted an agreement using the 504 plan, under which the total points that Nieshe could have earned in CWP were reduced by participation points that she was unable to earn due to excused absences. This adjustment allowed Nieshe to graduate.

Almost three years after she was prevented from attending her graduation ceremony, Nieshe, her husband, and her parents filed suit against the District and three individual defendants under 42 U.S.C. sec. 1983, alleging discrimination and a due process violation. The superior court dismissed Nieshe's parents as plaintiffs for lack of standing and the individual defendants based on qualified immunity. The District moved to exclude evidence of the 504 plan agreement, arguing that it was an offer of compromise and a subsequent remedial measure. The superior court disagreed and denied the motion.

Nieshe asked the superior court to sanction the District for a discovery violation. Nieshe argued that the District violated the discovery rules because it did not produce a computer disk that was in Schweitzer's possession, which contained data of grade reports for the 1999 CWP students. During discovery, Nieshe had requested from the defense 'grading records or documents related to grades or grading.' Although the District provided the plai

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