F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        MAY 19 2004
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    SAMANTHA LABRUM, a minor
    child, STETSON LABRUM, a minor
    child, and DANA HENSHAW, parent
    and guardian of Samantha Labrum and
    Stetson Labrum,

               Plaintiffs-Appellants,
                                                       No. 03-4106
    v.                                          (D.C. No. 2:02-CV-219-DB)
                                                         (D. Utah)
    WAYNE COUNTY SCHOOL
    BOARD; H. R. STAR; KATHY
    WOOLSEY; DENNIS EKKER;
    GEORGE MORRELL; DAVID
    BRINKERHOFF; DARREN NELSON;
    DAVE BEHUNIN; WAYNE
    COUNTY SCHOOL DISTRICT,

               Defendants-Appellees.


                           ORDER AND JUDGMENT           *




Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiffs Dana Henshaw and her two minor children, Samantha and Stetson

Labrum, appeal the district court’s order granting summary judgment in favor of

defendants on their 42 U.S.C. § 1983 civil rights complaint. We affirm.

      Plaintiffs sued the Wayne County School District, its Board, and seven

officers of the District (collectively, the District). Plaintiffs contend the District

violated their constitutional equal protection rights by arbitrarily and capriciously

refusing to establish a new school bus route that would provide them with school

bus service from the county road nearest their home to the elementary school that

Samantha and Stetson attend.

      Plaintiffs live approximately three miles from the nearest school bus stop

and fifteen miles from the elementary school. The District is a rural school

district encompassing 2,400 square miles of territory; it has approximately 533

students and buses approximately 368 students. Under the governing Utah state

administrative rules and standards, a minimum of ten children is required to

create a new bus route or route extension. The District does not provide a bus

stop closer than three miles from plaintiffs’ home because there are not enough


                                           -2-
children in that area. The District reimburses families, including plaintiffs, who

live more than 1.5 miles from a bus stop for the cost of driving their children to

the nearest bus stop. School districts are authorized to request special permission

for an exception to the ten-student bus rule, and there are a few existing bus route

segments in the District that serve children in areas with fewer than ten children.

The District considered the feasibility of creating a bus route closer to plaintiffs,

but concluded that the in-lieu reimbursement was significantly more cost-efficient

than extending the existing route closer to plaintiffs’ home.

       Plaintiffs argue that the District’s disparate treatment of similarly situated

children violates their equal protection rights by arbitrarily and capriciously

allowing some exceptions to the ten-student bus rule, but not allowing an

exception for them. The district court ruled that the District did not violate the

Equal Protection Clause because its classification of children to whom it provides

nearby bus service was rationally related to a legitimate governmental interest.

       We review the district court’s summary judgment rulings de novo, applying

the same legal standard used by the district court pursuant to Fed. R. Civ.

P. 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc.   , 

,

1241 (10th Cir. 1990). That is, we first consider if there is a genuine issue of

material fact in dispute; if not, we then determine if the district court correctly

applied the substantive law.     

Equal Protection Clause prohibits state and local governments from

treating similarly situated persons differently.”   Rector v. City & County of

Denver , 

, 949 (10th Cir. 2003). “Unless a suspect class or

fundamental right is implicated,” neither of which is in this case, “a government’s

classification need only be rationally related to a legitimate government interest.”

is on the plaintiffs to establish that the [state action] is

irrational or arbitrary and that it cannot conceivably further a legitimate

governmental interest.”     Riddle v. Mondragon , 

, 1207 (10th Cir.

1996) (quotation and original alteration omitted). “Under the rational basis test,

if there is a plausible reason [for the state] action, our inquiry is at an end.”

United States v. Castillo , 

, 883 (10th Cir. 1998) (quotation omitted).

       Plaintiffs argue on appeal that the district court failed to consider their

argument that the District was arbitrarily and capriciously applying the bus rules

to discriminate against them, and erroneously ruled only that the rules were valid

and facially constitutional. Plaintiffs also contend the district court improperly

weighed the evidence in evaluating the District’s summary judgment motion. We

disagree with both contentions.

       The district court expressly noted that plaintiffs did not contend that any of

the bus rules were facially unconstitutional, and were arguing only that the

District was arbitrarily and capriciously applying these rules. Aplt. App. at 263.


                                             -4-
Contrary to plaintiffs’ contention, the district court clearly ruled that the District

was not arbitrarily and capriciously discriminating against them, but rather had

rationally created a classification of students based on whether convenient bus

service to them was cost-efficient.

      Nor did the district court improperly weigh the evidence. The District

presented rational, plausible reasons why it was economically feasible and cost-

efficient to maintain a few bus route segments serving fewer than ten children,

but that it was not economically cost-efficient to make an exception in order to

provide the plaintiffs with a bus stop closer than three miles from their home. It

presented evidence that a bus route to plaintiffs’ home would require an unusual

out-and-back bus trip of several miles over a dirt road, in contrast to the routes

for which they have allowed an exception, which are on through streets, do not

require the buses to make lengthy out-and-back trips, and do not significantly

extend bus time or mileage. Plaintiffs presented no evidence to dispute the

economic basis of the District’s conclusion.

      Plaintiffs argue on appeal that the District could construct a bus route to

their area that would not require an out-and-back trip, and that certain of the

existing bus route segments are not cost-effective. Unsupported, conclusory

arguments of counsel, however, do not create an issue of fact.     See Matthiesen v.

Banc One Mortgage Corp . 

, 1247 (10th Cir. 1999). Moreover, in


                                           -5-
determining whether local governmental action is arbitrary and capricious, courts

are not free to substitute their own judgment for that of the local governing

bodies. Governmental bodies have wide latitude under the Equal Protection

Clause in making social and economic decisions; “the federal courts do not sit as

arbiters of the wisdom or utility of these [decisions].”      Allright Colo., Inc. v. City

& County of Denver , 

, 1512 (10th Cir. 1991). Plaintiffs also argue

for the first time in their reply brief that the District created bus routes based on

the social status of the children’s parents. This assertion is both untimely and

wholly unsupported by any evidence in the record. We agree with the district

court that plaintiffs did not meet their burden of showing that the District’s

decision not to provide them with more convenient bus service was irrational or

arbitrary or that it could not plausibly further a legitimate governmental interest

in providing cost-effective bus service to the entire District.

       The judgment of the district court is AFFIRMED for substantially the same

reasons set forth in its March 21, 2003 order.


                                                           Entered for the Court



                                                           Wade Brorby
                                                           Senior Circuit Judge




                                             -6-