author: KYLE, District Judge.

text:
    SLIGO, INC., Plaintiff/Appellee, v. Cynthia R. NEVOIS and Michelle A. Vlahek, Trustees of the Raymond H. Cornell Revocable Trust, Defendants/Appellants.
    No. 95-2955.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 12, 1996.
    Decided May 21, 1996.

      Richard Wunderlich, St. Louis, MO, argued (James W. Herron and Jeana D. McFerror, on the brief), for appellants.
    Kenton Kniekmeyer, St. Louis, MO, argued (David F. Szewczyk, on the brief), for appellee.
    Before WOLLMAN and HANSEN, Circuit Judges, and KYLE, District Judge.

      . The HONORABLE RICHARD H. KYLE, United States District Judge for the District of Minnesota, sitting by designation.

   KYLE, District Judge.

Plaintiff/App ellee Sligo, Inc. (“Sligo”), a closely held corporation, commenced this diversity action against Defendants/Appellants Cynthia Nevois and Michelle Vlahek (“Trustees”) seeking a declaration that it properly exercised an option to purchase shares of Sligo stock held by the Trustees, or alternatively, an order of specific performance requiring the Trustees to accept Sligo’s tender offer for the shares. The district court found for Sligo and ordered the Trustees to convey the stock certificates. The Trustees appeal, claiming the district court’s order is contrary to the express language of Sligo’s option and contesting the proper purchase price for the shares. Sligo subsequently filed a motion to dismiss the appeal as moot on the grounds the Trustees complied with the district court Order and conveyed the stock during the pendency of this appeal. For the reasons set forth below, we deny Sligo’s motion to dismiss this appeal, and we reverse the decision of the district court.

I. BACKGROUND

The parties dispute the proper method for calculating the purchase price of Sligo stock under the terms of Sligo’s option. The Trustees claim the purchase price should be based on the book value of Sligo shares on December 31,1989. Sligo maintains the purchase price should be based on the book value of the shares on January 31,1994. The following facts underlying this conflict are undisputed.

A. Acquisition of Sligo and the Restrictive Stock Transfer Agreement

In July, 1988, Raymond H. Cornell (“Cornell”), and J. Richard Hauser (“Hauser”) engineered a leveraged buyout of Sligo, a St. Louis-based industrial supply distributor. (J.A. at 4-5, 37, 96-97.) Cornell and Hauser each owned fifty percent of Sligo’s outstanding shares under the terms of the acquisition, and each served as an officer and director of Sligo. As a condition of financing this acquisition, Sligo’s lenders required it to purchase and maintain life insurance policies in the amount of $1 million on the lives of Cornell and Hauser and required that the life insurance proceeds be applied toward repayment of the financing loans if either Hauser or Cornell died before the loans were repaid. Sligo later purchased additional life insurance policies on the lives of Cornell and Hauser in the amount of $500,000.00 each. Sligo was the beneficiary of these life insurance policies.

In December, 1988, Hauser and Cornell entered into a Restrictive Stock Transfer Agreement (“Agreement”) to restrict each owner’s ability to transfer his shares of Sligo stock. (J.A. at 969.) This Agreement provided Sligo with an option to purchase an owner’s share upon certain events and under certain conditions, as more fully set forth below. After executing the Agreement and pursuant to its terms, Cornell transferred his shares of Sligo stock to an inter vivos revocable trust (the “Trust”), of which he was the sole trustee.

Under the Agreement, Sligo’s option was triggered when a specified “transfer” occurred. Its option read in pertinent part:

3.4 Purchase Options Upon Death of a Shareholder or Other Involuntary Transfers.
(b) First Option of Corporation. Within thirty (30) days of the Corporation’s receipt of actual notice of a Transfer ... the Corporation may exercise an option hereby granted to the Corporation to purchase all, but not less than all, of the Shares so Transferred ... for the price and upon the other terms provided in Article V hereof....

(J.A. at 13.) The Agreement treated the death of a shareholder as a “transfer” which accordingly triggered Sligo’s option to purchase the deceased shareholder’s shares.

The Agreement also established two mechanisms for setting the value of the shares in the event of a transfer. The first was a “fail-safe” provision which read:

5.2 Market Value. Unless otherwise specified in a certificate of agreed value then in effect pursuant to Section 5.3 hereof, the “Market Value” of Shares as used herein shall mean:
(b) Death and Insurance. In the case of a sale and purchase of Shares by the Corporation under [the terms of its option] as a result of the death of a Shareholder if the Corporation receives life insurance proceeds upon the death of such Shareholder, the Market Value shall mean the book value of said Shares for the period ending December SI, 1989, and One and one-half (1%) times said book value thereafter. Book value shall conclusively be determined by the accountant or accounting firm then servicing the Corporation.

{Id. at 16 (emphasis added).) As an alternative, the Agreement provided that the shareholders could change the Market Value as determined under Section 5.2(b) by executing a “Certificate of Agreed Market Value.” The amount agreed upon in such a certificate superseded the Market Value as set out in Section 5.2(b). Specifically, Section 5.3 of the Agreement provided:

5.3 Certificate of Agreed Market Value. The Shareholders and the Corporation may, at any time and from time to time, determine “Market Value” as used in Section 5.2 hereof by executing and filing with the Corporation a written instrument wherein such determination is set forth, whereupon, for the period of time stated in such instrument, “Market Value” so determined shall supersede “Market Value” as determined in Section 5.2_

(Id. at 16-17.) Cornell and Hauser executed a Certificate of Agreed Market Value effective for the period August 1, 1988 through December 31, 1988. They did not execute a subsequent Certificate of Agreed Market Value.

B. Sligo’s Attempt to Exercise its Option

Cornell committed suicide on January 31, 1994, and the Trustees succeeded him as successor co-trustees of the Trust. Under - the Agreement, his death constituted a “transfer” which triggered Sligo’s option to purchase the shares held in the Trust. On February 18, 1994, Sligo exercised its option and notified the Trustees of its intention to purchase the shares of Sligo stock held in the Trust.

In order to determine the purchase price of these shares, Sligo contacted “the accounting firm then servicing the Corporation,” De-loitte & Touche, and requested that it calculate the book value of Sligo as of the date of Cornell’s death, January 31,199f

That book value was calculated using Sli-go’s financial statements for 1993 and information obtained from Sligo regarding income for the period January 1-81, 1994. Deloitte & Touche determined the book value of all Sligo shares on January 81,1994 to be $546,-523.00. Cornell's fifty percent interest was $273,261.50, and Sligo tendered one and one-half times this amount, $409,892.25, to the Trustees.

Although Deloitte & Touche did not calculate the book value of Sligo shares as of December 31, 1989 — the date referred to in Section 5.2(b)of the Agreement — the parties do not dispute that the book value on that date was $879,724.00. The book value of Cornell’s fifty-percent interest in Sligo at that time was $439,862.00. (J.A. at 724.)

Based on the accountant’s calculation of the January 31, 1994 book value, Sligo offered the Trustees $409,892.25 for the Trust’s shares of Sligo stock. The Trustees refused the offer, claiming that Sligo had improperly calculated the book value and asserting the following: First, because the shareholders and Sligo never determined “Market Value” under the procedure established in Section 5.3, the “fail safe” provision in Section 5.2(b) applies, and the “Market Value” of the shares was one and one-half times their “book value” as of December 31, 1989, not January 31, 1994. They accordingly assert that Sligo must pay $659,793.00 for the shares — the agreed upon December 31, 1989 book value of $439,862.00 multiplied by 1.5.

Second, and alternatively, if the book value is to be calculated as of the date of Cornell’s death, the $1.5 million due to Sligo from Cornell’s life insurance policies should have been included in the determination of book value.

Third, and also based on the calculation of book value as of the date of Cornell’s death, the accountants “did not make an independent review of the records of Sligo in order to calculate book value” and instead relied on unreviewed information Sligo supplied. (Appellant’s Br. at 13.) They accordingly claim the accountants did not “determine” the book value of the shares as required by Section 5.2(b) of the Agreement.

C. District Court Proceedings

The parties submitted their claims to the district court on a stipulated record. In its Findings of Fact, Conclusions of Law and Final Order, the district court concluded Sli-go had timely and validly executed its option. It held that the purchase price of the shares to be purchased under Section 5.2(b) should be based on their book value as of January 31, 1994, the date of Cornell’s death. The district court further concluded that Deloitte & Touche properly excluded the $1.5 million in life insurance proceeds payable to Sligo from the calculation of the shares’ book value as of January 31, 1994. Finally, the district court concluded that De-loitte & Touche complied with the Agreement’s term that it “determine” the shares’ book value, notwithstanding its failure to independently review financial records, because: (1) the Agreement did not explicitly require the accountants to conduct an audit and (2) the Trustees failed to show the book value was determined in an arbitrary or capricious maimer. Based on these determinations, the district court entered judgment in Sligo’s favor and ordered the Trustees to accept Sligo’s tender of $409,892.25 and convey the shares.

D. Post-Trial Proceedings

The Trustees filed a notice of appeal to this Court on July 25, 1995. They simultaneously filed a motion with the district court seeking to stay execution of its Order pending resolution of their appeal; this motion was denied. On August 14, 1995, Sligo informed the district court that it intended to execute on the Order pursuant to Rules 69 and 70 of the Federal Rules of Civil Procedure. (Wunderlich Aff. ¶ 7.) Sligo also informed counsel for the Trustees that unless they tendered the shares, Sligo would deem such inaction as refusing to comply with the terms of the Order. (Id., Ex. E.)

The Trustees subsequently advised Sligo that they would accept Sligo’s tender of $409,892.25 for the shares to avoid risk of a contempt citation, but without waiving or prejudicing their appeal rights. (Id. ¶ 15 & id, Exhs. H, J.) Accordingly, the certificate conveyed to Sligo contained the following reservation of rights clause:

Without waiving any issue or right on appeal, Trustees of the Raymond H. Cornell Trust dated 10-3-90 hereby deliver to Sli-go, Inc. the 50 shares of common stock of Sligo, Inc. as directed in the Final Order of Judge Shaw signed on June 29, 1995 in Sligo, Inc. v. Cynthia R. Nevois, et al., Cause No., 4:94-cv-670CAS, in the United States District Court for the Eastern District of Missouri.

(Id, Ex. K.) Sligo tendered a check for $409,-892.25, which the Trustees deposited in a separate account pending resolution of this appeal. (Nevois Aff. ¶ 7 & id, Ex. A; Vla-hek Aff. ¶ 7 & id, Ex. A.)

Sligo currently claims the Trustees abandoned their appeal because they “accepted” payment for the shares.

II. DISCUSSION

A. Motion to Dismiss the Appeal

Sligo’s motion to dismiss this appeal is premised on the “acceptance of benefits” doctrine, which provides that an appeal from a court judgment may be barred where the appealing party has voluntarily and intentionally accepted the benefits of that judgment. See Commercial Union Ins. v. Walbrook Ins., 41 F.3d 764, 769 (1st Cir.1994); Wynfield Inns v. Edward LeRoux Group, Inc., 896 F.2d 483, 489 (11th Cir.1990); International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 889 (5th Cir.1977). The application of this doctrine requires a party to accept the benefits of a judgment under circumstances which “indicate an intention to finally settle and compromise a disputed claim.” In re Tudor Assoc., Ltd. II, 20 F.3d 115, 118 (4th Cir.1994) (quotation omitted).

In the present case, the circumstances clearly indicate that the Trustees did not intend to finally settle their dispute with Sligo when they conveyed the shares. The conveyance was made pursuant to an adverse court order and under a threat of contempt. Moreover, the Trustees repeatedly and consistently informed Sligo that they did not intend to waive their appeal by conveying the shares; the certificate itself specifically memorializes this position. The Trustees did not seek to take “advantage” of the court order compelling them to transfer the shares. This was precisely the result the Trustees litigated to avoid. We accordingly deny Sligo’s motion to dismiss this appeal.

B. Merits of the Appeal

The Trustees raise three issues on appeal: (1) whether the district court properly interpreted Section 5.2(b) of the Agreement in determining the date for establishing the book value of the shares; (2) whether the insurance proceeds payable to Sligo upon Cornell’s death should have been included in the “Market Value” of the shares if the date for determining book value is January 31, 1994; and (3) whether the accountant “determined” the book value as required under the Agreement. We need only reach the first issue.

1. Section 5.2(b)

Sligo and its shareholders did not execute a Certificate of Agreed Market Value pursuant to Section 5.3 for the period following December 31, 1988. As a result, the “Market Value” determination is governed by the fail-safe clause found in Section 5.2(b), which provides that if a shareholder dies and Sligo receives life insurance proceeds, and if there is not a Certificate of Agreed Market Value covering the date of such a shareholder’s death:

the Market Value shall mean the book value of said Shares for the period ending December SI, 1989, and One and one-half times said book value thereafter. (Emphasis added.)

The Trustees argue that the words “said book value” refer to the previously stated book value, and thus expressly require the market value of the Shares to be determined as of December 31, 1989. Sligo argues that the phrase “for the period ending December 31, 1989” qualifies the reference to “Market Value” in this clause, and does not modify the term “book value.” Sligo maintains the book value to be used in this section is the book value as of the date of the shareholder’s death, January 31, 1994. Both parties rely on the alleged plain meaning of Section 5.2(b) to support their conflicting interpretations.

The district court did not find Section 5.2(b) ambiguous, found the Trustee’s construction of Section 5.2(b) “without merit,” and concluded as follows:

December 31, 1989, is clearly not the only date on which book value is to be calculated. Due to the use of the word ‘thereafter,’ the Court concludes that the Agreement provides for the purchase price to be calculated on dates after December 31, 1989. Said date is used by the Agreement as a line of demarcation between when the purchase price is straight book value and when it is one and one-half times book value.

(J.A. at 971-72.)

2. Legal Standard

We review the district court’s interpretation of Missouri law de novo. Bell Lumber & Pole Co. v. United States Fire Ins., 60 F.3d 437, 441 (8th Cir.1995).

The construction and interpretation of a contract is a matter of law, and no deference is paid to the trial court’s interpretation. See Central City Ltd. v. United Postal Sav. Ass’n., 903 S.W.2d 179, 182 (Mo.Ct.App.1995). Whether the language of a contract is ambiguous is also a question of law. CIT Group/Sales Fin., Inc. v. Lark, 906 S.W.2d 865, 868 (Mo.Ct.App.1995); see also Maurice Sunderland Architecture, Inc. v. Simon, 5 F.3d 334, 337 (8th Cir.1993) (explaining that “[t]he determination that a contract is or is not ambiguous is a legal determination, and no deference is paid to the trial court’s determination on that issue” and “[i]f the contract is unambiguous, the interpretation is a question of law and determined de novo”) (applying Minnesota law). A contract is not ambiguous simply because the parties disagree as to its meaning. Young Dental Mfg. Co. v. Engineered Prod., Inc., 838 S.W.2d 154, 155-56 (Mo.Ct.App.1992). Rather, to determine whether a contract is ambiguous, the court must “consider the whole instrument and give the words their ordinary and natural meaning.” Angoff v. Mersman, 917 S.W.2d 207, 210 (Mo.Ct.App.1996) (quotation omitted).

Accordingly, a contract is ambiguous only if “its terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction.” CIT Group Sales, 906 S.W.2d at 868; see also Central City, 903 S.W.2d at 182 (“[w]here a contract is not ambiguous, we ascertain the intent of the parties by giving the language used its natural, ordinary and common sense meaning”). A court may not use “forced or strained meanings” and “cannot use extrinsic or parol evidence to create an ambiguity.” Young Dental, 838 S.W.2d at 156. If no ambiguity exists, the court must construe and enforce the contract according to its plain meaning. Schuster v. Shelter Mut. Ins., 857 S.W.2d 381, 383 (Mo.Ct.App.1993); see also Lake Cable, Inc. v. Trittler, 914 S.W.2d 431, 435-36 (Mo.Ct.App.1996)(“[w]hen a contract uses plain and unequivocal language, it must be enforced as written”).

3. Application

We agree with the district court that Section 5.2(b) is not ambiguous, but disagree with its interpretation of the plain language used in this section.

The crux of the parties’ dispute, and the claimed district court error, centers upon the meaning of the word “said” as it is used in Section 5.2(b). Missouri courts have explained that the plain meaning of the word “said” is “before mentioned,” “already spoken of’ or “aforesaid” and that it “refers to an appropriate antecedent.” York Pharmacol Co. v. Henry C. Beckmann Realty & Inv. Co., 304 S.W.2d 40, 42 (Mo.Ct.App.1957) (quotation omitted); accord Smith v. Stowell, 256 Iowa 165, 125 N.W.2d 795, 797 (1964) (quotation omitted); see also Barilaro v. Consolidated Rail Corp., 876 F.2d 260, 265 (1st Cir.1989) (noting that “[i]n usual parlance, when the word ‘said’ precedes another term it is so used in order to call the reader’s attention to an antecedent meaning or designation for the term”); Black’s Law Dictionary 1336 (6th ed.1990) (defining “said” as “[b]efore mentioned” and noting that “[t]his word is frequently used in contracts, pleadings, and other legal papers with the same force as ‘aforesaid’”). We agree with this construction.

Applying this construction to Section 5.2(b), its meaning, we believe, becomes clear and not reasonably susceptible to conflicting interpretations. Section 5.2(b) creates two distinct periods for calculating the purchase price of the shares, depending upon the date this provision is triggered. The first period is “for the period ending December 31,1989.” The second period is for any time “thereafter.” With respect to calculating the book value before December 31, 1989 — the first period — this section provides that the Market Value shall mean the “book value of the shares” for the period ending on that date. With respect to calculating the Market Value anytime after the first period, the Market Value is one and one-half times “said book value.” In other words, the Market Value is one and one-half times the previously mentioned or aforesaid book value. In this section, the previously mentioned book value is the book value of the shares on December 31, 1989. This language is plain and unequivocal.

To hold otherwise would be to ignore the use of the word “said” in this section, or to give it a strained or unnatural meaning. This we may not do. See Liberty Storage Co. v. Kansas City Terminal Warehouse Co., 340 S.W.2d 189, 192 (Mo.Ct.App.1960) (explaining “[w]e are not at liberty to ignore the presence of [a word in a contract], but must attach meaning and significance to it, because every part of the contract must be given effect, if fairly and reasonably possible”). If the parties had wanted the fail-safe clause to use the current book value of the shares, they could have easily provided language to this effect. They did not. They specified the book value on December 31, 1989.

With respect to the district court’s construction, we note its focus was on the term “thereafter.” The district court found that, because of this term, the date December 31, 1989 marked a “line of demarcation” between when the purchase price was straight book value and when it was one and one-half times book value. It concluded that Section 5.2(b) did not provide a fixed date to be used to determine the book value, but merely provided that the book value at the time the purchase price was calculated would be multiplied by 1.5.

The district court read too much into Section 5.2(b). We agree that Section 5.2(b)con-templates that the purchase price may be calculated on different dates, and that December 31, 1989 marks a line of demarcation between when the purchase price will be straight book value and when it will be 1.5 times the book value. It does not follow, however, that the book value used in the calculation must change merely because the multiplier applied to that book value changed. This additional condition is found nowhere in the Agreement. To the contrary, as stated above, the book value specified by the Agreement is the previously mentioned book value of the shares on December 31, 1989.

Moreover, this construction is consistent with the remaining provisions of the Agreement. The Agreement establishes a fixed purchase price for the shares for the period August 1, 1988 to December 31, 1988. Section 5.2(b) is a fail-safe provision which establishes two alternative fixed purchase prices for the shares for the period following December 31, 1988. This provided a predictable basis from which the parties could determine whether to supersede the purchase price pursuant to Section 5.3 with a current valuation of the shares. If the parties had intended to deviate from the values established by the fail-safe provision, they could have easily done so.

Based on the foregoing, we find the language of Section 5.2(b) is not ambiguous. The purchase price for the Trust’s shares is one and one-half times the book value of those shares on December 31,1989, not their January 31, 1994 book value — the date of Cornell's death. The parties do not dispute that the book value of Cornell’s shares on December 31, 1989, was $439,862.00. The purchase price of the Trust’s shares is accordingly one and one-half times that amount, or $659,793.00. As a result of this conclusion, we need not address the remainder of the Trustees’ claims.

III. CONCLUSION

The decision below is reversed and this action is remanded to the district court with directions to enter judgment in favor of the Trustees in an amount consistent with this Opinion.

      . The Agreement defined the term "transfer” as follows:
      (e) Transfer. All references herein to "Transfer” shall mean and shall include any sale, exchange, gift, assignment, transfer in trust or otherwise,.... In addition, if for any reason any Present Shareholder ceases to be at least an officer, a director or an employee of the Corporation, a "Transfer” subject to the provisions of Section 3.4 hereof shall be deemed to have occurred with respect to the Shares of such Present Shareholder on the first Business Day on which such Present Shareholder is not an officer, director or employee of the Corporation.
      (J.A. at 10.)

      . A third individual, Michael A. Lazaroff, was also named as a successor and co-trustee of the Trust; he resigned as a co-trustee on February 16,1994. (J.A. at 38.)

      . In calculating this value, Deloitte & Touche did not include the $1.5 million due Sligo from the life insurance policies payable upon Cornell’s death. Sligo did not receive payment on these policies until approximately March, 1994, at which time it received $504,247.38 from Kentucky Central Life Insurance Company and $1,000,638.58 from Allianz Life Insurance Company. (J.A. at 715, 716.)

      . Section 8.9 of the Agreement provides that "[t]his agreement shall be subject to and governed by the laws of the State of Missouri.” (J.A. at 22.)

      . In its Brief, Sligo claims that the district court relied on extrinsic evidence in "resolving the issues in this case,” and that as a result, its conclusions must be reviewed under the clearly erroneous standard. (Appellee's Br. at 14.) This is clearly not the law. with respect to the district court's interpretation of the language of the Agreement.

      . For example, rather than providing the purchase price to be the book value of the shares for the period ending December 31, 1989, "and One and one-half times said book value thereafter," the Agreement, if the parties wanted to use the current book value, could simply have provided the purchase price to be the book value of the shares for the period ending December 31, 1989, “and One and one-half times the current book value thereafter,” or "and One and one-half times their book value thereafter.”

      . The Court also notes that calculating the book value at the end of an accounting period rather than the purchase date is reasonable. See 1 O'Neal, Close Corporations § 7.30 at 141 (3d ed.1994) ("Ordinarily, in order to avoid closing books, making an audit and taking inventory, it is preferable to provide that book value will be calculated as of the end of the last preceding fiscal or calendar year or some other designated accounting period").

      . The Trustees concede that the remaining issues regarding life insurance proceeds or the accountants’ actions need be addressed only if it is determined that the book value is determined as of a date other than December 31, 1989.


source: Caselaw Access Project

author: McMILLIAN, Circuit Judge.

license: Public Domain

text:
    Cherry HEIDEMANN, a minor child, June Heidemann, mother and next friend, Nebraska Advocacy Services, Inc., a Nebraska Corporation, Appellees, v. Thomas L. ROTHER, individually and in his official capacity as the Superintendent of Schools for Tecumseh Public Schools; Colleen S. Naber, individually and in her official capacity as the Special Education Administrator for Tecumseh Public Schools; Donna Defreece, individually and in her official capacity as Special Education Teacher for Tecumseh Public Schools; Robyn Faris, individually and in her official capacity as Special Education Teacher for Tecumseh Public Schools; Linda Stone, individually and in her official capacity as Special Education Aide for Tecumseh Public Schools; Kathy Philippi, individually and in her official capacity as Special Education Aide for Tecumseh Public Schools; Karen Casey, individually and in her official capacity as Special Education Aide for Tecumseh Public Schools; Joe Grof, individually and in official capacity as member of School Board for Tecumseh Public Schools; Stacey Goodrich, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Carla Meints, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Rosemary Pella, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Judy Vance, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Howard Buethe, individually and in official capacity as member of the School Board for Tecumseh Public Schools; Tecumseh Public Schools, of Johnson County, Nebraska; Appellants. Sharon Joy, individually, Defendant-Appellant.
    Nos. 94-4112, 95-1136.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1995.
    Decided May 23, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied July 1, 1996.

      Brien M. Welch, Omaha, NE, argued (Terry J. Grennan, Omaha, NE, on the brief), for appellants Thomas L. Rother, et al., in No. 94-4112.
    J. Michael Coffey, Omaha, NE, argued, for Sharon Joy in No. 95-1136.
    Tania Diaz, Lincoln, NE, argued (Bruce G. Mason, Omaha, NE and Shirley Mora James, Lincoln, NE, on the brief), for appellees in Nos. 94-4112 and 95-1136.
    Before WHITE, Associate Justice (Ret.), and McMILLIAN and LOKEN, Circuit Judges.

       The Honorable Byron R. White, Associate Justice of the United States Supreme Court, (Ret.), sitting by designation, pursuant to 28 U.S.C. § 294(a).

   McMILLIAN, Circuit Judge.

This civil action was brought pursuant to 42 U.S.C. § 1983 by Cherry Heidemann (hereinafter Cherry), a minor, along with her mother, June Heidemann, and Nebraska Advocacy Services, Inc. (collectively plaintiffs), alleging violations of Cherry’s constitutional rights to due process and equal protection and federal statutory rights under the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (formerly the Education of the Handicapped Act (EHA)). The case is presently on interlocutory appeal from two collateral orders filed simultaneously by the district court on December 9, 1994. In the first order, the district court denied a motion for partial summary judgment on qualified immunity grounds brought by all but one of the defendants, including: the Tecumseh Public Schools, a/k/a School District #49-0032 of Johnson County, Nebraska (the District); various individuals employed by the Tecumseh Public Schools, sued in their individual and official capacities; and members of the board of education of the Tecumseh Public Schools, sued in their individual and official capacities (collectively the school defendants). Heidemann v. Rother, No. 8:CV93-540 (D.Neb. Dec. 9, 1994) (Heidemann I). In the second order, the district court denied a motion for partial summary judgment based on qualified immunity and other grounds brought by the remaining defendant, Sharon Joy, a licensed physical therapist whom plaintiffs sued individually because she provided services to Cherry under a contract with the Tecumseh Public Schools. Id. (Heidemann II). For reversal, all of the defendants, including Joy, argue that they are entitled to qualified immunity as a matter of law because plaintiffs have failed to allege a violation of any clearly established constitutional or federal statutory rights. Upon careful de novo review, and for the reasons discussed below, we reverse the orders of the district court and remand the case for further proceedings.

Background

Cherry is a nonverbal, mentally and physically disabled girl who was nine years old at the time this action was filed, but functioned at approximately a one-year-old level. Joint Appendix at 331. Her disabilities include severe mental retardation, visual and hearing impairment, epilepsy, and learning disabilities. Prior to October 1993, she was enrolled in the District’s special education programs. She attended school in the nearby School District of Elk Creek, Nebraska, which contracted with the District to provide special services to Cherry.

At times, Cherry’s teachers used a treatment on her referred to as “blanket wrapping.” The blanket wrapping involved binding her body with a blanket such that she could not use her arms, legs, or hands. Defendant Joy, a licensed physical therapist who operated under a contract with the District to provide physical therapy and related services to special education students, recommended the use of the blanket wrapping technique for Cherry. According to defendant Joy’s affidavit, she

recommended for the years 1992/1993 and 1993/1994 that the Tecumseh Public School educators of Cherry Heidemann consider blanket wrapping to provide said Cherry Heidemann with security and comfort and that the use of this treatment would also provide said Cherry Heidemann with warmth and stability and would have a calming effect on her.

Joint Appendix at 121. Plaintiffs agree that defendant Joy recommended the use of the blanket wrapping technique. Brief for Ap-pellees at 44.

Defendants maintain that the blanket wrapping was therapeutic and calmed Cherry by giving her a sense of warmth and security. They allege that sometimes Cherry would fall asleep while blanket wrapped because it calmed her. Defendants further claim that June Heidemann approved the use of blanket wrapping for Cherry and never voiced any objections to its use until on or about October 18, 1993, approximately one week before she removed Cherry from the District’s special education programs.

Plaintiffs, by contrast, allege that the blanket wrapping was used as a means of physical restraint. They allege that it was administered as a substitute for educational and habilitative programming, merely for defendants’ convenience. They allege that Cherry was wrapped against her will for periods of one and a half hours or more. On October 6, 1993, June Heidemann allegedly found Cherry blanket wrapped on the floor, with flies crawling in and around her mouth and nose; the blanket was so tightly wrapped, according to June Heidemann, that she needed assistance to remove it. She allegedly did not know that the blanket wrapping was being used in this manner. One week later, June Heidemann again found Cherry blanket wrapped on the floor and was again unable to remove the blanket without assistance. Shortly thereafter, June Heidemann removed Cherry from the Teeumseh public school system and enrolled her elsewhere.

Plaintiffs filed this § 1983 action in federal district court alleging that each of the defendants was directly or indirectly responsible for Cherry’s blanket wrapping treatment and, accordingly, violated her constitutional rights to substantive and procedural due process and equal protection (among other constitutional rights) and her federal statutory rights under the IDEA and the Rehabilitation Act. The school defendants and defendant Joy separately filed motions for partial summary judgment seeking qualified immunity for their actions. In denying each of the two motions, the district court stated: “after careful consideration of the materials submitted ... the court concludes that factual disputes exist in this action such that genuine issues of material fact remain for trial. See Fed.R.Civ.P. 56.” Heidemann I, slip op. at 1; Heidemann II, slip op. at 2. The school defendants and defendant Joy separately appealed, and this court consolidated their appeals for purposes of oral argument. We now reverse the orders of the district court and remand this case to the district court for further proceedings consistent with this opinion.

Discussion

Jurisdiction to review summary judgment disposition

In first considering our jurisdiction to review the issues presently on interlocutory appeal, we are guided by the Supreme Court’s recent decision in Behrens v. Pelletier, — U.S. ---, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (Behrens). In Behrens, the Supreme Court’s primary holding was to reject the Ninth Circuit’s one-interlocutory-appeal rule in the context of successive collateral orders addressing the same claim of qualified immunity. Id. at-, 116 S.Ct. at 838-41. That holding has no application in the present case because this is defendants’ first interlocutory appeal on qualified immunity grounds. However, Behrens also includes language which is highly instructive to our jurisdictional analysis in the present case. In Behrens, the defendant, an official with the Federal Home Loan Bank Board, had moved for summary judgment on qualified immunity grounds, arguing that his actions had not violated any clearly established right. Id. at-, 116 S.Ct. at 838. The Supreme Court observed, “[t]he District Court denied the motion with the unadorned statement that ‘[m]aterial issues of fact remain as to [the defendant] on the Bivens [] claim.’” Id. Nevertheless, the Supreme Court held that the appeal to the Ninth Circuit was not barred from appellate review under the rule of limited interlocutory appellate jurisdiction announced in Johnson v. Jones, — U.S.-,-, 115 S.Ct. 2151, 2156-57, 132 L.Ed.2d 288 (1995), because, in Behrens, the district court’s denial of qualified immunity was not premised upon a specific finding of insufficient evidence to determine whether or not particular conduct had occurred. — U.S. at-, 116 S.Ct. at 842; see also Miller v. Schoenen, 75 F.3d 1305, 1309 (8th Cir.1996) (“if the issues relate to whether the actor actually committed the act of which he is accused, or damages, or causation, or other similar matters that the plaintiff must prove, we have no jurisdiction to review them in an interlocutory appeal of a denial of a summary-judgment motion based on qualified immunity”). Rather, the Supreme Court noted, “the District Court’s denial of [the defendant’s] summary-judgment motion necessarily determined that certain conduct attributed to [the defendant] (which was controverted) constituted a violation of clearly established law.” Behrens, — U.S. at-, 116 S.Ct. at 842. In remanding the case to the Ninth Circuit for review of the denial of summary judgment on the defendant’s qualified immunity claim, the Supreme Court explained that, notwithstanding the district court’s “unadorned” ruling, which merely stated that “[m]aterial issues of fact remain,”

Johnson permits [the defendant] to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow [] standard of “objective legal reasonableness.” This argument was presented by [the defendant] in the trial court, and there is no apparent impediment to its being raised on appeal. And while the District Court, in denying [the defendant’s] summary judgment motion, did not identify the particular charged conduct that it deemed adequately supported, Johnson recognizes that under such circumstances “a court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed.” Johnson, supra, at -, 115 S.Ct. at 2159. That is the task now facing the Court of Appeals in this case.

Id.

The procedural circumstances of the case before us are similar in many important respects to those which were before the Supreme Court in Behrens. In rejecting defendants’ qualified immunity claim in the present case, the district court stated, without further explanation, that “factual disputes exist in this action such that genuine issues of material fact remain for trial.” We, therefore, find it necessary to review the record and consider the legal context of plaintiffs’ constitutional and statutory claims, in order to determine whether this interlocutory appeal raises abstract issues of law relating to qualified immunity over which we presently have jurisdiction. We hold that it does. Accordingly, consistent with the Supreme Court’s guidance in Behrens, we now examine, as to each of plaintiffs’ constitutional and statutory claims, (1) what material facts are not genuinely in dispute, viewing the evidence in the light most favorable to plaintiffs, and (2) whether, assuming such facts, defendants infringed a clearly established constitutional or statutory right. — U.S. at-, 116 S.Ct. at 841-42; see also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (public officials are shielded from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known). In considering this latter question, we employ this court’s analytical approach in Foulks v. Cole County, 991 F.2d 454, 456 (8th Cir.1993) (in reviewing the district court’s denial of summary judgment based upon qualified immunity, the court considers: (1) whether a federal violation had been asserted; (2) whether the allegedly violated right was clearly established; and (3) whether, given the facts most favorable to the plaintiffs, a reasonable official would have known that the alleged actions violated that right); see also Manzano v. South Dakota Dep’t of Social Servs., 60 F.3d 505, 509 (8th Cir.1995) (“clearly established” means the contours of the right are sufficiently clear that a reasonable official would understand that what he or she is doing violates that right; specific conduct need not have been previously held unlawful, so long as the unlawfulness is “apparent” in light of pre-exist-ing law) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). “Summary judgment is appropriate when there is no genuine issue of material fact that would allow a reasonable jury to find in favor of the non-moving party.” Miller v. Schoenen, 75 F.3d at 1309 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986)).

Substantive due process claim

Plaintiffs’ substantive due process claim is governed by the Supreme Court’s decision in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Youngberg v. Romeo concerned a profoundly retarded 33-year-old man named Nicholas Romeo, who had the mental capacity of an 18-month-old child. Id. at 309, 102 S.Ct. at 2454-55. He had been involuntarily committed to a state-operated hospital at the request of his mother. Id. Upon learning that Nicholas was being physically restrained for portions of the day, Paula Romeo, as his mother and next friend, sued three of the hospital’s administrators pursuant to 42 U.S.C. § 1983, seeking damages for the alleged breach of Nicholas’s constitutional rights based upon the allegation that the defendants were routinely restraining Nicholas for prolonged periods of time. Id. at 307, 310-11, 102 S.Ct. at 2454, 2455-56. The case proceeded to an eight-day jury trial, and the defendants prevailed. Id. at 311-12, 102 S.Ct. at 2455-56. On appeal to the Third Circuit, the Court of Appeals, sitting en banc, reversed and remanded for a new trial, holding, among other things, that Nicholas’s liberty interest in freedom of movement was a fundamental liberty “that can be limited only by an ‘overriding, non-punitive’ state interest.” Id. at 313, 102 S.Ct. at 2456-57 (quoting the Court of Appeals’ decision below, 644 F.2d 147, 157-58 (3d Cir.1980)). The Supreme Court agreed with the Third Circuit that Nicholas had a constitutionally-protected interest in freedom from bodily restraint. In discussing that interest, the Supreme Court explained, “[i]n other contexts, the existence of such an interest is clear in the prior decision of this Court. Indeed, ‘[Ijiberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’ ” Id. at 316, 102 S.Ct. at 2458 (quoting Greenholtz v. Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1, 18, 99 S.Ct. 2100, 2109, 60 L.Ed.2d 668 (1979) (Powell, J., concurring in part and dissenting in part)). The Court further noted “[t]his interest survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment.” Id. The Supreme Court then went on to discuss the standards that were to be applied in that case. The Supreme Court held “[i]n determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance ‘the liberty of the individual’ and ‘the demands of an organized society.’ ” Id. at 320, 102 S.Ct. at 2460 (citing Poe v. Ullman, 367 U.S. 497, 542, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961)). In vacating the decision of the Third Circuit, the Supreme Court explained:

We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints. He would have held that “the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” 644 F.2d at 178. Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. Cf. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). At the same time, this standard is lower than the “compelling” or “substantial” necessity tests the Court of Appeals would require a State to meet to justify use of restraints or conditions of less than absolute safety. We think this requirement would place an undue burden on the administration of institutions ... and also would restrict unnecessarily the exercise of professional judgment as to the needs of residents.

Id. at 321-22, 102 S.Ct. at 2461-62. As the above-quoted language indicates, the Supreme Court rejected the standard applied by the Third Circuit’s majority opinion and expressly adopted the standard articulated in the concurring opinion written by Chief Judge Seitz. Id. at 321, 102 S.Ct. at 2461. Elsewhere in its opinion, the Supreme Court noted that Judge Seitz had “concluded that the appropriate standard was whether the defendants’ conduct was ‘such a substantial departure from accepted professional judgment, practice, or standards in the care and treatment of [the] plaintiff as to demonstrate that the defendants did not base their conduct on a professional judgment.’” Id. at 314, 102 S.Ct. at 2457 (citing 644 F.2d at 178 (Seitz, C.J., concurring)).

In the present case, in light of the undisputed facts that Cherry has “verified severe mental retardation, epilepsy, visual impairments, hearing impairments, and learning disabilities,” requiring special education programs and special education placement, Joint Appendix at 27 (Amended Complaint ¶¶ 26-27), we hold that her constitutionally-protected interest in freedom from bodily restraint in the context of her public school education must be evaluated under the standard adopted in Youngberg v. Romeo. Applying those standards, we conclude that the school defendants’ conduct in using the blanket wrapping technique at defendant Joy’s recommendation did not violate Cherry’s clearly established right to be free from unreasonable bodily restraint. Defendant Joy is unquestionably a licensed professional therapist. Moreover, plaintiffs concede that the school defendants were following the recommendation of defendant Joy in using the blanket wrapping treatment. See Brief for Appellees at 44. Certainly, even if the blanket wrapping treatment did constitute a substantial departure from professional norms (which it did not), a reasonable official would not have known that to be true. Therefore, the school defendants are entitled to qualified immunity on this claim as a matter of law.

Plaintiffs allege, and we assume for purposes of this summary judgment analysis, that defendant Joy, as a contract employee of the District, was acting under color of state law in recommending the use of blanket wrapping for Cherry. We note that Young-berg v. Romeo does not specifically address the constitutional standard to be applied to substantive due process claims against defendants like Sharon Joy, the very professional upon whom the school defendants relied for guidance in treating Cherry. The constitutional standard which we infer from Young-berg v. Romeo is that her recommendation must be within the scope of “professionally acceptable choices.” In other words, a finding that defendant Joy violated Cherry’s substantive due process rights would require no less that a finding that her recommendation represented a substantial departure from accepted professional judgment, practice, or standards.

In considering whether defendant Joy is protected by qualified immunity for recommending the blanket wrapping treatment for Cherry, we note that the traditional objective reasonableness test is unworkable. In other words, we cannot logically say that, even assuming the blanket wrapping treatment was not within the realm of professionally acceptable choices, a reasonable professional such as defendant Joy would not have known that -to be true. Plaintiffs’ assertion that defendant Joy violated Cherry’s right to freedom from bodily restraint falls within a class of constitutional claims for which “it is nearly impossible to separate the constitutional violation analysis from the clearly established right analysis.” Manzano, 60 F.3d at 510. Accordingly, we hold that, when an authorized professional acting under color of state law exercises professional judgment in treating a disabled individual under the state’s care, and that exercise of judgment would otherwise cause unconstitutional bodily restraint, he or she is entitled to qualified immunity if such treatment is within the scope of professionally acceptable choices, which, for purposes of judicial review, is broadly defined to include any choice that is not a substantial departure from accepted professional judgment, practice, or standards.

In the present case, defendant Joy stated in her affidavit that “blanket wrapping for individuals such as Cherry Heidemann was- and is an accepted practice in the field of pediatric physical therapy and occupational therapy” and “the use of blanket wrapping was the most effective and least restrictive form of treatment for an individual such as Cherry Heidemann at the time of the incidents complained of.” Joint Appendix at 121 (affidavit of Sharon Joy). Although plaintiffs have submitted affidavits showing that other professionals in the field would not have recommended the use of blanket wrapping in this particular case or in the manner applied in this case, we hold that plaintiffs’ submission of evidence on summary judgment was insufficient to create a genuine dispute as to whether the blanket wrapping treatment represented a substantial departure from accepted professional judgment, practice, or standards in the care and treatment of Cherry. Accordingly, defendant Joy is protected by qualified immunity as a matter of law. A decision to the contrary, we believe, “would restrict unnecessarily the exercise of professional judgment as to the needs” of special students such as Cherry. Youngberg v. Romeo, 457 U.S. at 322, 102 S.Ct. at 2461-62.

Equal protection claim

We next turn to plaintiffs’ equal protection claim. Defendants argue that plaintiffs have failed as a matter of law to allege a violation of a clearly established constitutional right. We agree. In City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442, 105 S.Ct. 3249, 3255-56, 87 L.Ed.2d 313 (1985), the Supreme Court specifically held that mental retardation is not “a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation.” The Court went on to explain:

[h]ow this large and diversified group is to be treated under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary....
Doubtless, there have been and there will continue to be instances of discrimination against the retarded that are in fact invidious, and that are properly subject to judicial correction under constitutional norms. But the appropriate method of reaching such instances is not to create a new quasi-suspect classification and subject all governmental action based on that classification to more searching evaluation.

Id. at 442, 443, 105 S.Ct. at 3255-56, 3256. The Supreme Court thus held that the rational basis test applies to' equal protection claims of this nature.

In view of the facts that the school defendants were following defendant Joy’s recommendation in using the blanket wrapping technique, that defendant Joy is a licensed professional therapist, and that her recommendation has not been shown to be beyond the scope of professionally acceptable choices, we hold that plaintiffs have failed to genuinely dispute the fact that defendants’ actions, including defendant Joy’s recommendation of the blanket wrapping treatment, were rationally related to a legitimate governmental purpose — namely, providing appropriate care for Cherry as part of her public school education. See id. at 442, 105 S.Ct. at 3255-56 (“the States’ interest in dealing with and providing for [their mentally retarded citizens] is plainly a legitimate one”). Accordingly, we hold that it is beyond genuine dispute that Cherry’s equal protection rights were not violated. Because there is no genuine issue of material fact as to whether defendants violated Cherry’s clearly established equal protection rights, defendants are entitled to qualified immunity on this claim as a matter of law.

Rehabilitation Act claim .

We next consider plaintiffs’ claim that defendants violated Cherry’s rights under the Rehabilitation Act. Defendants incorrectly cite Lue v. Moore, 43 F.3d 1203 (8th Cir.1994), for the general proposition that “the qualified immunity defense applies to all actions brought under the Rehabilitation Act of 1973 § 504(a).” Brief for Appellants (school defendants) at 21 (emphasis added). In Lue v. Moore, this ’ court noted that, while the Rehabilitation Act does permit private damages claims against public officials under 42 U.S.C. § 1983, “qualified immunity is available ” in such actions. 43 F.3d at 1205 (emphasis added). This court then went on to explain “Qualified immunity shields the defendants from liability unless they violated [the plaintiffs] clearly established rights under the Act and reasonably should have known they were doing so.” Id. (citing Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738). In Lue v. Moore, this court reviewed the record in the light most favorable to the plaintiff and concluded that no violation of the Rehabilitation Act had occurred as a matter of law. 43 F.3d at 1206.

Section 504(a) of the Rehabilitation Act, 29 U.S.C. § 794(a), provides in pertinent part: “[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Plaintiffs fail to identify specific facts which support their claim that defendants have excluded Cherry, denied her benefits, or have subjected her to discrimination solely by reason of her disability. They merely assert “[t]he school may not deny the student with handicaps an opportunity to participate in programs that is not equal to that afforded other students without handicaps, or provide different or separate services to such students unless such action is necessary.” Brief for Appel-lees at 34. Thus, we assume plaintiffs’ § 504 claim to be that defendants subjected Cherry to the blanket wrapping treatment unnecessarily and solely on account of her disability, in violation of her rights under the Rehabilitation Act.

In Monahan v. State of Nebraska, 687 F.2d 1164, 1170-71 (8th Cir.1982) (Monahan), cert. denied, 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983), we reasoned that the standard to be applied in Rehabilitation Act cases involving public school education of children with disabilities is similar to the standard that was adopted in Young-berg v. Romeo. Thus, in considering the viability of the plaintiffs’ challenge in that case to the placement of their handicapped children, this court held that

either bad faith or gross misjudgment should be shown before a § 504 violation can be made out, at least in the context of education of handicapped children.... The standard of liability we suggest here ... reflects what we believe to be the proper balance between the rights of handicapped children, the responsibilities of state educational officials, and the competence of courts to make judgments in technical fields. So long as the state officials involved have exercised professional judgment, in such a way as not to depart grossly from accepted standards among educational professionals, we cannot believe that Congress intended to create liability under § 504.

Id. at 1171.

As we concluded above, defendants did not depart grossly from acceptable standards among qualified professionals, even viewing the evidence in the light most favorable to plaintiffs. There being no genuine issue of material fact as to whether defendants violated Cherry’s clearly established rights under the Rehabilitation Act, defendants are entitled to qualified immunity on this claim as a matter of law.

IDEA claim

Finally, we consider plaintiffs’ claim that defendants have violated the IDEA. Plaintiffs allege, among other things, that defendants failed to adequately inform June Heid-emann of the true nature and degree of use of the blanket wrapping treatment for Cherry, or to obtain June Heidemann’s consent to the treatment as it was actually used, in violation of the statutory requirements for developing and implementing an individualized education program (IEP) for Cherry, as required under 20 U.S.C. § 1401(a)(20).

In this appeal, defendants assert that they are entitled to qualified immunity as a matter of law on plaintiffs’ IDEA and related procedural due process claim because no private cause of action exists under the statute for recovery of general damages. Plaintiffs’ IDEA and related procedural due process claims (along with all their other claims) seek “general damages for pain, suffering, emotional anxiety, distress, and loss of skills” and punitive damages. Joint Appendix at 45-46 (Amended Complaint, prayer for relief).

We specifically do not reach the merits of plaintiffs’ assertions that defendants failed to comply with the procedures set forth in the IDEA and effectively denied. Cherry a “free appropriate public education.” We simply hold that plaintiffs’ claims based upon defendants’ alleged violations of the IDEA may not be pursued in this § 1983 action because general and punitive damages for the types of injuries alleged by plaintiffs are not available under the IDEA. In reaching this conclusion, we agree with the Sixth Circuit’s reasoning in Crocker v. Tennessee Secondary Sch. Athletic Ass’n, 980 F.2d 382 (6th Cir.1992) (Crocker). While Crocker was factually very different from this ease, it presented a similar legal question: whether the plaintiffs could pursue a claim for general damages pursuant to § 1983 based upon the defendants’ alleged violations of the EHA (the predecessor of the IDEA). The court in Crocker stated “we do not find case authority interpreting the Act to allow an award of general damages for emotional injury or injury to a dignitary interest.” Id. at 386. Quoting Burlington Sch. Comm. v. Massachusetts Dep’t of Educ., 471 U.S. 359, 370-71, 105 S.Ct. 1996, 2002-03, 85 L.Ed.2d 385 (1985), the Sixth Circuit interpreted the Supreme Court’s decision in that case as implicitly holding that the EHA did not allow “damages” in general but rather only allowed “ ‘reimbursement [of] ... expenses that it [the municipal government] should have paid all along and would have borne in the first instance had it developed a proper IEP.’” Crocker, 980 F.2d at 386. Notably, the Sixth Circuit went on to state “[w]e read Miener v. State of Missouri, 800 F.2d 749, 752-54 (8th Cir.1986), and Anderson v. Thompson, 658 F.2d 1205, 1210-14 (7th Cir.1981), as suggesting the same approach.” Crocker, 980 F.2d at 386. We now hold as a matter of law that plaintiffs in the present case cannot recover general or punitive damages arising out of defendants’ alleged violations of the IDEA and, accordingly, defendants are entitled to qualified immunity for plaintiffs’ IDEA claim and related procedural due process claim.

Conclusion

For the foregoing reasons, we hold that the district court erred in denying both the school defendants’ motion for partial summary judgment and defendant Joy’s motion for partial summary judgment on the basis of their qualified immunity defenses. The orders of the district court are reversed and the case is remanded for further proceedings consistent with this opinion.

      . Defendants maintain that flies tended to congregate in the special education rooms of the school building because the school was restricted from spraying in those rooms, due to allergies and other sensitivities of special education students.

        . Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

      . Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

      . This undertaking, which involves the traditional de novo review of the record on summary judgment, is characterized by the Supreme Court as a determination of " ‘what facts the district court, in the light most favorable to the nonmov-ing party, likely assumed.’ " Behrens v. Pelletier, — U.S. -, -, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996) (quoting Johnson v. Jones, -U.S. -, -, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995)). Oftentimes it is, of course, merely a theoretical supposition that the district court “assumed” any particular facts in deciding to deny a motion for summary judgment on qualified immunity grounds.

      . In Manzano v. South Dakota Dep’t of Social Servs., 60 F.3d 505, 510-11 (8th Cir.1995), we recognized that, because the abstract substantive due process right to familial integrity in the child abuse investigation context requires balancing a liberty interest against the governmental interest in protecting minor children, the traditional qualified immunity analysis would be impracticable. Moreover, proof of a clearly established right would be “particularly formidable.” Id. at 510. In that context we held that "when a state official pursuing a child abuse investigation takes an action which would otherwise unconstitutionally disrupt familial integrity, he or she is entitled to qualified immunity if such action is properly founded upon a reasonable suspicion of child abuse.” id. at 511.

      . One of plaintiffs’ experts, Penny White-Romero, a licensed physical therapist, gave the following opinion:
      7. The practice of wrapping a child in a blanket to promote calm and relaxation is not a widely used practice, and should only be performed in a certain fashion and under appropriate circumstances. Since I have become licensed as a physical therapist, I have attempted its use on only 2 or 3 children, each for a period of a month or two.
      8. The use of a blanket to provide relaxation is not a therapeutic technique, but is used to prepare the child for therapy. When used, the blanket should be folded over the child so that it enfolds them, and should be left on the child for a maximum of ten (10) minutes. The purpose of this method is to decrease excessive external stimuli so that the child can participate in and receive therapy and instruction. Leaving the blanket on the child for more than a ten (10) minutes period is inappropriate because the presence of the blanket ceases to serve its purpose once the child is accustomed to it.
      9. The standard course of practice in this field for inducing relaxation prior to therapy would also include the use of other methods in lieu of blanket wrapping. For example, excessive external stimuli can be relieved by redirecting the child, or by removing the child to a quieter environment.
      10.In my opinion, wrapping a child in a blanket so tightly that they cannot move, and leaving the child so wrapped for an hour would constitute restraint, and would clearly fall outside of the scope of the appropriate use of the method, that being blanket wrapping.
      Joint Appendix at 179 (affidavit of Penny White-Romero).
      Plaintiffs’ other expert, Kenneth D. Keith, Ph. D., gave the following opinion:
      7. Based upon my review ... it is my opinion that the blanket wrapping technique was used on Cherry Heidemann as a behavior management tool. The technique was used in order to produce physical restraint to address behaviors such as kicking, hitting and biting. As such, this technique would be recognized by behavior analysts as an aversive behavior management technique.
      8. Prior to the use of an aversive behavior management tool, it is necessary that data be collected as a baseline on the behaviors in question. It is necessary to use these data to first develop behavior management programming using non-restrictive techniques. Data must be collected to determine the effectiveness of those techniques. Use of an aversive, restrictive technique should be considered only after a documented showing that less restrictive techniques are ineffective. At that point, the aversive method should be used only in conjunction with a non-restrictive method of addressing the problem behaviors.
      9. Aversive behavior management techniques such as the one used on Cherry Heide-mann must be utilized appropriately and with the aforementioned safeguards. Aversive methods are subject to abuse and misuse, and when used inappropriately or for convenience of staff persons prove harmful and detrimental to the health and well being of the child subjected to such treatment.
      Id.at 162 (affidavit of Kenneth D. Keith).

      . In their response on appeal, plaintiffs do not dispute that Cherry is not a member of a suspect or quasi-suspect class for equal protection purposes. Instead, they now attempt to frame their equal protection claim as essentially the same as their statutory claims.

      . We find plaintiffs’ claims of unconstitutional corporal punishment and violation of Cherry’s rights under the privileges and immunities clause to be wholly without factual or legal foundation. Accordingly, defendants are entitled to qualified immunity on those claims as well.

      . The question of whether plaintiffs have asserted a statutory violation which is privately enforceable in this § 1983 action is squarely within the scope of our appellate jurisdiction. Behrens v. Pelletier, - U.S. -, -, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996) (summary judgment determinations are immediately appealable when they resolve disputes concerning abstract issues of law relating to qualified immunity). If plaintiffs have failed to assert a cognizable statutory violation, that failure would dispose of the qualified immunity issue at the first stage of the three-step inquiry set forth in Foulks v. Cole County, 991 F.2d 454, 456 (8th Cir.1993) (first question is whether a violation has been asserted).

      . In Miener v. State of Missouri, 800 F.2d 749, 754 (8th Cir.1986), this court stated
      [t]he relief [the plaintiff] requests is entirely consistent with [Congress's] goal, since she wishes to recover compensatory educational services to remedy denial of the benefits Congress sought to protect through denying a damages remedy, a free appropriate education....
      Our conclusion that [the plaintiff] may recover compensatory educational services under the EHA does not obviate the necessity of determining whether she has also stated a claim for violations of the Rehabilitation Act ... or a claim under § 1983 for violations of the Due Process Clause; if [the plaintiff] succeeds on either of these claims she might obtain relief, such as general damages or attorney’s fees, not available under the EHA. However, we conclude that the plaintiff has not succeeded on either point.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. CERTIFICATE OF DEPOSIT, NO. 8101730026, FIRST NATIONAL BANK OF OMAHA, Defendant, Shari Thompson, Appellant.
    No. 95-3865.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 21, 1996.
    Decided May 28, 1996.
    Shari Thompson, pro se.
    Thomas Monaghan, Omaha, NE, for appel-lee.
    Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
   PER CURIAM.

Following the arrest of Billy Thompson in April 1990 for possession with intent to distribute cocaine, the government seized a bank certificate of deposit (CD) valued at $7,000 and filed a forfeiture complaint against the property. Shari Thompson, Billy’s wife, answered the forfeiture complaint and asserted a claim to the CD. When partial summary judgment was granted in favor of the bank in September 1991, the district court’s docket sheet entry erroneously reflected the ease as terminated. After no activity for four years, the docketing mistake was detected in September 1995 — the record does not tell us how — and the case reopened, presumably at the government’s behest. The district court ordered the case set for trial a few weeks later, and when Thompson did not appear, denied her motion for a continuance and entered a default judgment against her. Thompson appeals. We reverse.

The government’s delay of more than four years evidences a lack of reasonable diligence in prosecuting its forfeiture action. The government does not explain why it took four years to discover the district court’s docketing error. The procedural prejudice to Thompson is apparent from the circumstances surrounding the hasty reopening and entry of default judgment. Moreover, the government has alleged that the CD was redeemed in March 1995. That event either made the CD forfeiture proceeding moot, or created a need for much more complex litigation before the government could recover the money previously represented by the CD. Since the government originally seized the CD, it is to blame for any mishandling, so it is appropriate to treat the CD’s redemption as mooting the forfeiture proceeding. For all these reasons, we conclude that dismissal because of the government’s failure to prosecute is the proper course of action. See Garland v. Peebles, 1 F.3d 683, 686 (8th Cir.1993). See also Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962) (courts have inherent authority to dismiss sua sponte for failure to prosecute).

Accordingly, the judgment of the district court is reversed and the case is remanded with instructions to dismiss the government’s forfeiture complaint for failure to prosecute.


author: MURPHY, Circuit Judge.

text:
    Karen BUCHANAN, Plaintiff-Appellee, v. LITTLE ROCK SCHOOL DISTRICT OF PULASKI COUNTY, ARKANSAS; Linda Poindexter, Patricia Gee, Judy Magness, Oma Jacovelli, T. Kevin O’Malley, John E. Riggs, IV, Individually and in their official capacities as the Board of Directors for the Little Rock School District; Henry Williams, Individually and in his official capacity as Superintendent, Little Rock School District; Defendants-Appellants.
    No. 95-3192.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 12, 1996.
    Decided May 28, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied July 15, 1996.

      Michael S. Moore, Little Rock, Arkansas, argued for appellants (Christopher J. Heller, on the brief).
    Troy Anthony Price, Little Rock, Arkansas, argued for appellee.
    Before BEAM and MURPHY, Circuit Judges, and NANGLE, District Judge.

       The HONORABLE JOHN F. NANGLE, United States District Judge for the Eastern District of Missouri, sitting by designation.

   MURPHY, Circuit Judge.

Karen Buchanan claims her due process rights were violated because she did not receive a hearing in connection with her reassignment from principal of a junior high school to an administrative post. The district court concluded as a matter of law that she had a property interest in her position as principal, and judgment was entered in her favor after a jury trial. The Little Rock School District of Pulaski County, Arkansas (the district), the members of its school board, and its superintendent appeal from the judgment. We reverse.

The facts are essentially undisputed. Buchanan was hired by the district as a teacher in 1985, promoted to assistant principal the following year, and then to principal in 1987. She received an individual contract for each school year. She served as the principal of a number of elementary schools within the district through the 1993-94 academic year and received favorable evaluations.

In April 1994, she signed a contract indicating she would be the principal at Garland Elementary School the following year. The superintendent, Dr. Henry Williams, recommended that she instead take over as principal at Henderson Junior High School, a magnet school troubled by poor student performance and discipline problems. The school board approved the recommendation, and a letter from a district administrator confirmed the transfer early in the summer.

After Buchanan started at Henderson friction developed quickly between her and some of the teachers. At the beginning of the 1994-95 school year, Buchanan reviewed with them the policy manual she had revised over the summer. Apparently a number of teachers were upset that they would no longer be able to use their preparation periods to run errands. Several teachers were angry because they had been moved to different classrooms without being consulted. There were several other unpopular policy changes, such as requiring teachers to record their grades as percentages. The school board received a number of complaints, which in turn were reported to Buchanan by Williams. The changes instituted by Buchanan were consistent with district rules, and Williams indicated that he supported her efforts to enforce district policies.

The situation did not improve over the next month, however, and Buchanan had a difficult time with unruly students and disgruntled faculty. Following an incident in which a girl was beaten by other students on a bus, Buchanan told Williams, “Get me out of here.” She later changed her mind and said she wanted to stay at Henderson, and Williams provided increased security staff. The tension between Buchanan and the faculty continued. Williams told her that they perceived her as being arbitrary, authoritarian, and insensitive to their concerns. Some teachers were discussing a walkout.

After Williams met with some of the teachers, he told Buchanan to “make peace” with the faculty. Buchanan circulated a survey to pinpoint problems with the faculty, but only six of some seventy teachers responded. She received a list of complaints from teachers on September 16. Three days later she met with the faculty and received a second list of concerns, which was similar to the first. The meeting apparently failed to reduce the tension.

Matters came to a head on September 20, when at least seven teachers apparently participated in a “sickout” and failed to come to work. Williams visited Henderson that day and asked Buchanan to meet with him that evening. Fearing she would be removed from her position, Buchanan retained counsel, who attended the meeting with her.

At their meeting Williams told Buchanan that he had decided to recommend that she be reassigned to another position within the district and explained that his decision was “political.” The school board unanimously approved the recommendation at a regular board meeting on September 22. The board minutes indicate she was “temporarily reassigned.” Six other principals and assistant principals were also reassigned at the same time; one became an Acting Assistant Superintendent and another was made an Acting Assistant Vocational Director. The district did not inform Buchanan of any way in which she could air any complaints about the transfer, and Buchanan did not avail herself of the existing grievance procedure.

Buchanan was reassigned to the Office of Student Assignment, where she was encouraged to apply for a new position not yet formally approved. The district planned to divide the responsibilities of the Desegregation Facilitator between the Associate Superintendent for Desegregation and the Director of Student Assignment. Buchanan apparently performed the functions of the latter role, assigning students to schools based on then-needs and in accord with the district’s extensive desegregation plan. She worked in that capacity for the remainder of the fall 1994 semester and was then assigned to be the acting principal at Garland Elementary School. Garland was the school that had been named on the contract she had signed in April for the school year.

Buchanan filed this action on October 26, 1994, a month after she was transferred from Henderson. The complaint alleged that appellants deprived her of a property interest in her position as principal at Henderson without a hearing and therefore violated her due process rights. Buchanan sought a preliminary injunction returning her to Henderson, which was denied in November 1994. She also sought compensatory damages and a permanent injunction that she be reinstated at Henderson and not removed without due process of law.

The matter was tried before a jury in June 1995. The district court had indicated before trial that it would rule she had a property interest in her position as a principal, and it issued a written order to that effect after trial. The jury returned a verdict in favor of Buchanan and found that she had suffered $50,000 in damages. Injunctive relief was not granted, however. The appellants now seek reversal of the judgment in Buchanan’s favor, mainly on the ground that the district court erred in finding a property interest in her position as principal.

An employee has a property interest in employment under the due process clause if she has a “legitimate claim of entitlement” to it. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Winegar v. Des Moines Independent Community School District, 20 F.3d 895, 899 (8th Cir.), cert. denied — U.S. -, 115 S.Ct. 426, 130 L.Ed.2d 340 (1994). A property interest can be in the entire position or in a specific benefit, but “a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Thus, a claimant must demonstrate that there were “rules or mutually explicit understandings that support [her] claim of entitlement” to her position. Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).

A protected property interest must be derived from a source independent of the Constitution, such as state law. Drake v. Scott, 823 F.2d 239, 240 n. 2 (8th Cir.), cert. denied 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987). A contract may create a property interest. See Brockell v. Norton, 688 F.2d 588, 590-91 (8th Cir.1982). “[Federal constitutional law determines whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Memphis Light, Gas, & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978). Whether the district court’s order finding a property interest in the status of principal is construed as a partial summary judgment or a judgment as a matter of law, review is de novo.

The appellants argue that neither Arkansas law nor Buchanan’s employment contract created a property interest in a particular assignment. Buchanan’s definition of her claimed property interest has been somewhat unclear. She originally sought injunctive relief reinstating her as principal at Henderson, but her appellate briefs focus more on her loss of a principal position for the last months of 1994. At all times, however, she has claimed at least a property interest in the status of a principal based on her contract.

Buchanan’s contract for the 1994-95 year, dated April 28, 1994, was entitled a “Teacher’s Contract” and stated: “[Buchanan] agrees to perform services as assigned by Superintendent or Principal.” The next line read: “Primary responsibility” with “Elementary Principal” typed in the following blank.

On the day after Williams told Buchanan he was going to recommend her transfer from Henderson, the school district issued a memorandum authorizing revision of her April contract. Two changes were indicated. “Henderson Magnet” was entered on a line designated “site,” and her salary was increased by $175 because junior high principals were entitled to a larger automobile allowance.

The district court concluded that Buchanan’s contract created a legitimate expectation that she would be a principal for the entire 1994r-95 academic year. It reviewed the statutory description of the work of a principal in considering her rights under the contract. The duties of a principal under Arkansas law include “supervis[ing] the operation and management of the school and property ...,” Ark.Code Ann. § 6-17-302(a), and assuming “administrative responsibility and instructional leadership....” Id. at § 6-17-302(b). The court reasoned that Buchanan was deprived of a contractual right and therefore a constitutionally protected property interest because she no longer performed these functions after her reassignment.

The same Arkansas statute that discusses the work of a principal also provides that those duties will be performed “as the board shall determine necessary,” § 6-17-302(a), and “[in the area] to which he is assigned.” § 6-17-302(b). Section 6-17-302(d) goes even further: “The principal shall perform such other duties as may be assigned by the superintendent pursuant to the legal rules and regulations of the board.”

These statutory sections do not create a right to remain a principal, especially in light of the transfer provision in Ark.Code Ann. § 6-17-303, which states:

District school boards shall have authority to assign and reassign or transfer all teachers in schools within their jurisdiction upon the recommendation of the superintendent.

The parties do not dispute that principals are considered teachers for the purposes of the statute. Since these Arkansas statutes preserve the right of the board and superintendent to determine the assignments for principals, Buchanan cannot have a property interest in her principal status based on them.

Buchanan also argues that the contract and revision explicitly create a property interest in being a principal. Arkansas law requires that contracts be construed in a manner which gives effect to all clauses. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462, 465 (1986).

In seeking to harmonize different clauses of a contract, we should not give effect to one to the exclusion of another even though they seem conflicting or contradictory, nor adopt an interpretation which neutralizes a provision if the various clauses can be reconciled. The object is to ascertain the intention of the parties, not from particular words or phrases, but from the entire context of the agreement.

Id. In her contract Buchanan agreed to “perform services as assigned by the Superintendent.” Her “primary responsibility” was identified on the next fine of the contract as “elementary principal.” To read this as a limitation on the superintendent’s power of assignment would go beyond the words of the contract and nullify the assignment clause.

The assignment to Henderson in the September contract revision also contained no express guarantee of the position. It simply stated that Henderson Magnet would be her “site.” The duration of the contract was listed as “1994-95,” but nothing in the revision implies that she would serve at Henderson for that entire period. This document itself was a revision of her initial contract, and its language does not support a justifiable expectation that she would not be reassigned again.

The customs and practices of the district also do not support her claim. See Winegar v. Des Moines Independent Community School District, 20 F.3d 895, 899 (8th Cir.), cert. denied — U.S. -, 115 S.Ct. 426, 130 L.Ed.2d 340 (1994). The evidence at trial showed reassignment of principals was not uncommon in the district. Six personnel decisions regarding principals and assistant principals were included in the same school board vote which moved Buchanan from Henderson. The appellants also submitted evidence of prior reassignments of principals. There are no explicit assurances in the record, by contract or otherwise, that Buchanan would necessarily be a principal for the entire year. In light of the language in the contract, its revision, and the context in which the documents were executed, Buchanan could not have had a legitimate expectation that she would necessarily continue to be a principal at Henderson or elsewhere.

The closest Arkansas case to the issue here supports the conclusion that Buchanan had no property right under these circumstances. In Chandler v. Perry-Casa Public Schools District No. 2, 286 Ark. 170, 690 S.W.2d 349 (1985), a math and computer science teacher was reassigned to teach only computer science. The computer science course ended before the close of the school year, and Chandler thereafter performed only administrative duties. He sued under state and federal law to regain his math position. The Arkansas Supreme Court determined that he had no legal right to the position for “[t]here is no requirement that a teacher be assigned to the duties of his preference or that he consent to transfer or reassignment.” Id. 690 S.W.2d at 351. The court also noted that his reassignment was to an important and useful position. Id.

Chandler indicates that Buchanan could not legitimately expect to remain a principal under Arkansas law. Her reassignment was also to an important and useful position. She received the same salary and was responsible for significant desegregation and student assignment matters during her months in the Office of Student Assignment. While she was no longer playing the role of a principal, she did retain the title and compensation package. She was made the acting principal of Garland within months, where her compensation remained virtually unchanged.

The conclusion that Buchanan had no property interest in a particular assignment preventing transfer without a hearing is in accord with similar eases from other states. See Raposa v. Meade School District 46-1, 790 F.2d 1349, 1353 (8th Cir.1986) (teacher did not have a property interest in a specific assignment under South Dakota law); see also Wilson v. Walker, 777 F.2d 427 (8th Cir.1985) (Air National Guard pilot did not have property interest in flying status and could be transferred without hearing to nonflying post).

Other circuits have concluded school districts may transfer principals under similar circumstances. See Lyznicki v. Board of Education, School District 167, Cook County, Illinois, 707 F.2d 949, 952 (7th Cir.1983) (principals in Illinois can be transferred “to positions of similar rank and equal salary'’); Wooten v. Clifton Forge School Board, 655 F.2d 552, 555 (4th Cir.1981) (principal could be reassigned to teaching position without hearing where contract was silent and Virginia statute explicitly allowed transfer); Coe v. Bogart, 519 F.2d 10, 12-13 (6th Cir.1975) (principal could be reassigned to teaching position without hearing under Tennessee law). A case reaching the opposite result relied on specific rights granted by a Georgia statute and not found in Arkansas law. See Hatcher v. Board of Public Education and Orphanage for Bibb County, 809 F.2d 1546, 1551-52 (11th Cir.1987) (principal demoted to teaching position entitled to due process protections because Georgia statute guaranteed position of comparable responsibility, prestige, and salary).

Since there was an insufficient showing as a matter of law that Buchanan had any constitutionally protected property interest in her status as a principal, she was not entitled to the procedural protections of the due process clause. A hearing was therefore not constitutionally required in connection with her reassignment. The judgment is reversed.

      . Buchanan testified that she did not use the district’s established grievance procedure because she had been transferred and the grievance procedure was limited to “suspension, termination, or nonrenewal.”

      . Buchanan also asserted she had been deprived of a liberty interest, but that claim was dismissed for lack of proof at trial and is not at issue on appeal.

      . The parties seem to agree that Buchanan had a property right in a position with the district under Arkansas law. Thus, had she been terminated or had her transfer amounted to a constructive termination, the due process clause could have been implicated.

      . There is no contract revision in the record reflecting her transfer from Henderson to the Office of Student Assignment. A revision was made on March 13, 1995 showing her transfer to Garland.

      . The court was interpreting Ark.Code Ann. § 80-1234 (repealed), which was the predecessor to Ark.Code Ann. § § 6-17-303, the transfer and reassignment statute discussed supra.

      . Buchanan places great emphasis on Winegar v. Des Moines Independent Community School District, 20 F.3d 895 (8th Cir.), cert. denied - U.S. -, 115 S.Ct. 426, 130 L.Ed.2d 340 (1994), but that case is distinguishable. In Winegar, a teacher who had been at the same school for nineteen years was accused of physically abusing a student after the student hit him. Winegar was suspended for several days and transferred. The parties agreed he had a property interest under Iowa law, id. at 899 n. 4, and he also had a protected liberty interest because he was stigmatized by the charge against him. The court concluded he was entitled to a hearing, but it acknowledged that a transfer alone would not necessarily implicate due process. Id. at 900.