IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA (Roanoke Division) Plaintiff, Civil Action No. COMPLAINT

Transcription

1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA (Roanoke Division) JOHN DOE, v. Plaintiff, Civil Action No. 7:17-cv-176 VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY, FRANCES B. KEENE, CAROLINE GREEN, KATIE BYLENGA, KYLE ROSE and TIMOTHY D. SANDS, Defendants. COMPLAINT 1. John Doe 1 files this complaint for violations of his rights under the First Amendment of the United States Constitution, the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Due Process Clause of the Virginia Constitution, as well as for breach of contract. THE PARTIES AND JURISDICTION 2. Plaintiff John Doe is, and at all times relevant to this Complaint has been, a resident of the Commonwealth of Virginia. 3. Virginia Polytechnic Institute and State University ( Virginia Tech ) is a land grant institution, founded in 1872, located in Blacksburg, Virginia, which 1 John Doe is not the plaintiff s real name. Due to the nature of the allegations in this lawsuit, Mr. Doe is proceeding under a pseudonym to protect his privacy, to avoid retaliation and to protect the identity of the witness, who is identified as Jane Roe. In using a pseudonym, Mr. Doe relies upon the factors set out in Co. Doe v. Pub. Citizen, 74 F.3d 246 (4th Cir. 2014). Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 1 of 12 Pageid#: 1

2 is governed by the Board of Visitors of Virginia Polytechnic Institute and State University ( Board ), a public corporation. 4. Defendant Timothy D. Sands ( Mr. Sands ) is the president of Virginia Tech and a resident of the Commonwealth of Virginia. Under the bylaws of the Board, the Board delegates to the president the authority to oversee and to administer the policies of the Board and manage the administrative services of the Board. 5. Defendant Caroline Green ( Ms. Green ) is the Student Conduct Coordinator for Abusive Conduct and Adaptable Conflict of Virginia Tech and a resident of the Commonwealth of Virginia. 6. Defendant Katie Bylenga ( Ms. Bylenga ) is the Assistant Director for Student Conduct of Virginia Tech and a resident of the Commonwealth of Virginia. 7. Defendant Kyle Rose ( Mr. Rose ) is a Student Conduct Coordinator of Virginia Tech and a resident of the Commonwealth of Virginia. 8. Defendant Frances B. Keene ( Ms. Keene ) is the Deputy to the Senior Associate Vice President for Student Affairs of Virginia Tech and a resident of the Commonwealth of Virginia. 9. The Court has subject matter jurisdiction pursuant to 28 U.S.C and 28 U.S.C because John Doe s claims arise under the United States Constitution, brought pursuant to 42 U.S.C The state law and common law claims are so closely related to the federal law claims as to form 2 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 2 of 12 Pageid#: 2

3 the same case or controversy under Article III of the United States Constitution. STATEMENT OF FACTS 10. John Doe enrolled at Virginia Tech as a Freshman during the fall semester of 2016 to pursue a degree in biology. 11. In the 2017 Spring Semester, John Doe was enrolled in, among other classes, a core biology class that is prerequisite for later classes. 12. John Doe lived on campus in the West Ambler Johnston Hall where he became friends with individuals within the same hall. 13. A group Facebook chat was started among the group who lived in West Ambler Johnston Hall. 14. Facebook has a feature that allows individuals to create a private chat that includes any individuals who are invited to participate in the chat. 15. The group Facebook chat was private and only shared among the students who were invited to participate. 16. One of the members of the chat, John Smith, 2 began to make comments about school shootings, particularly Columbine. 17. Outside of the group chat, John Smith would speak insultingly to one particular student, Jane Roe. 3 2 Not his real name. 3 Not her real name. 3 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 3 of 12 Pageid#: 3

4 18. Facebook allows members of the group to change other member s names and give them nicknames. It also allows members of the group to change the photograph associated with the group chat and the name of the group chat. 19. John Smith changed his name in the group chat to Eric Harris and also changed John Doe s name to Dylan Klebold, the names of the Columbine shooters. John Doe immediately changed his name back. 20. John Doe was annoyed by John Smith s actions and, to mock him, changed the picture of the group chat to a meme 4, which showed the background of the Columbine cafeteria with a video game character superimposed on it with a quote from the video game: Die! Die! Diieee. John Doe did not create the meme; he found it online. 21. Several other members of the group chat played video games, and John Doe knew they would recognize the reference. 22. Jane Roe took a snapshot of that one portion of the chat and shared it with her parents, who reported the group chat to Virginia Tech. THE INVESTIGATION 23. On February 24, 2017, both John Doe and John Smith were questioned by Detective John Waid. 24. On March 13, 2017, Ms. Green set up a meeting with John Doe and provided him with a Virginia Tech Student Conduct Report of Allegations that stated he was being investigated for violating the abusive conduct-harassment; 4 A meme is an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media. Merriam Webster, 4 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 4 of 12 Pageid#: 4

5 disorderly or disruptive conduct; and involvement in university violation policies. It did not inform John Doe that suspension could be a consequence of an adverse finding at a hearing. 25. On March 17, 2017, four days later, a formal hearing was held. 26. The hearing was conducted by Mr. Rose and Ms. Bylenga and was for both John Doe and John Smith. 27. John Doe asked Jane Roe to speak on his behalf at the hearing, but she refused because it was a joint hearing with John Smith. 28. John Doe and John Smith both gave opening statements; Mr. Rose and Ms. Bylenga adjourned for an hour; they returned and asked some follow up questions; they adjourned again; and then called John Doe back in alone and informed him that they found him responsible for disorderly or disruptive conduct and involvement in a university violation. 29. During the hearing, the questions focused primarily on John Smith not John Doe. Additionally, when answering questions, John Smith would cut off John Doe when he was answering questions. 30. Mr. Rose and Ms. Bylenga did not stop John Smith from cutting off or speaking over John Doe. 31. Based on this finding, John Doe was suspended immediately for the remainder of the Spring 2017 semester until the Fall 2017 semester. He also cannot obtain housing until August 1, 2018, must attend five counseling sessions, complete as of yet undetermined educational programs, and submit to a mandatory assessment and re-enrollment interview with Virginia Tech. 5 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 5 of 12 Pageid#: 5

6 32. From February 24, 2017, until John Doe s appeal was final on April 11, 2107, he remained in residence at West Ambler Johnston Hall; there were no restrictions placed upon his movements or interactions. 33. Virginia Tech provides an advisor to students who wish to appeal the findings of the Student Conduct Office. John Doe met with an advisor, Bruce Hayden ( Mr. Hayden ). 34. When advising John Doe, Mr. Hayden stated that he thought the appeal would be unsuccessful given the timing: the 10 th anniversary of the Virginia Tech shootings was a couple of weeks away. He also advised John Doe not to appeal based on his responsibility for the actions but rather that the sanctions were too harsh. 35. On March 27, 2017, John Doe appealed the decision to the Student Conduct Office, on the basis that Virginia Tech violated his First Amendment rights and that the punishment was unduly harsh or arbitrary. 36. In support of his appeal, John Doe submitted letters from the other members of the group chat, including Jane Roe, who stated that she never intended to complain about John Doe s actions, only about John Smith s actions, and that she thought John Doe s punishment was not appropriate. 37. On April 11, 2017, Ms. Keene denied John Doe s appeal. UNIVERSITY POLICIES AND PROCEDURES 38. Virginia Tech s handbook on Student Conduct defines disorderly or disruptive conduct as [e]ngaging in disorderly or disruptive conduct that: (1) [d]isturbs the peace; (2) [i]nterferes with the performance of the duties of 6 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 6 of 12 Pageid#: 6

7 public/civil officials; (3) [i]nterferes with the rights and/or activities of others; or (4) [i]nterferes with the orderly functioning of the university and/or the performance of the duties of university personnel, including but not limited to studying, teaching, research, University administration, and blocking entrances and egress. 39. Virginia Tech s handbook on Student Conduct defines involvement in a University violation as the [p]resence during any violation of the Student Code of Conduct and/or University policies for Student Life in such a way as to condone, support, or encourage that violation. (Note: Students who anticipate or observe a violation of university policy are expected to remove themselves from participation and are encouraged to report the violation.) 40. Virginia Tech has procedures to be followed with regard to complaints made to the Student Conduct Office. 41. Once a complaint is received by the Student Conduct Office, it is reviewed to determine if there is a conflict to be resolved or a potential violation of the Student Code of Conduct. 42. The involved student is then contacted for a meeting with a student conduct representative to review the complaint and discuss options for resolution. 43. The possible outcomes of this meeting include: (1) the complaint will be considered resolved if student conduct designee believes it is unsupported; (2) all parties affected by the conflict can agree to proceed via an adaptable conflict resolution process; (3) an agreed resolution of a potential violation of the 7 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 7 of 12 Pageid#: 7

8 Student Code of Conduct; or (4) the complaint is referred to a formal hearing and the student is notified of the Student Code of Conduct charges and the hearing date. 44. For formal hearings, Virginia Tech states that it will notify the student in advance of the conduct charges he has allegedly violated and the time, date, and location of the hearing. During the formal hearing, conduct officers or a committee will determine responsibility for the alleged violations, including sanctions. 45. Virginia Tech states that it provides the following procedural guarantees: (1) the student will be provided a written statement of charges sufficiently in advance of the hearing and in reasonable detail to allow the student to prepare a case for the formal hearing; (2) the student may choose to refute or question any information or witnesses and will be given the opportunity to rebut the charges and to produce witnesses or written statements on their own behalf; (3) the student may have an advisor present but the advisor may not participate in the hearings; (4) the student may challenge the objectivity of any committee member or administrator given reasonable cause to believe they are biased or have a conflict of interest; and (5) after the formal hearing the student may appeal the decision on appropriate grounds. 46. At the hearing, the hearing officers must find by a preponderance of the evidence that a violation has occurred. The evidence must indicate that it is more likely than not that the violation occurred. 8 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 8 of 12 Pageid#: 8

9 47. Students can appeal on the following grounds (1) denial of procedural guarantees; (2) significant and relevant new evidence that was not available at the time of the hearing; and (3) sanctions/findings that are unduly harsh or arbitrary. COUNT I VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION PURSUANT TO 42 U.S.C John Doe incorporates by reference all paragraphs of this Complaint as though fully set forth herein. 49. The Fourteenth Amendment to the United States Constitution provides that no state shall deprive any person of life, liberty, or property, without due process of law. 50. Fourteenth Amendment due process protections are required in higher education disciplinary proceedings. 51. Virginia Tech denied John Doe s due process rights in his protected liberty interest in his education when (a) it held a formal hearing only four days after informing John Doe of the charges; (b) held a joint hearing with John Smith, where John Smith cutoff and spoke over John Doe; (c) did not provide John Doe with any witness summaries nor called any witnesses at the hearing; (d) failed to inform him that suspension could be a result if found responsible for the charges against him; and (e) failed to allow John Doe to provide his version of events before the formal hearing. 52. John Doe was entitled to a fundamentally fair procedure to determine whether he was responsible for the alleged misconduct. 9 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 9 of 12 Pageid#: 9

10 53. John Doe did not receive a fundamentally fair proceeding, because Mr. Rose and Ms. Bylenga reviewed the Virginia Tech Student Conduct Report of Allegations, which contained a one-sided version of events and did not incorporate any of John Doe s clarifications or defenses. 54. John Doe has a protected liberty interest in pursuing his education, as well as future educational and employment opportunities and occupational liberty, of which he cannot be deprived without due process. 55. John Doe has a protected property interest in his education, because, once he accepted his offer of admission and paid his tuition, he was entitled to enrollment at Virginia Tech. 56. John Doe was suspended, effective immediately, approximately one month before finishing the semester, unfairly delaying his education. 57. John Doe was also suspended for the Summer 2017 semester. 58. John Doe is also barred from utilizing on campus housing until August of These charges will become a permanent part of John Doe s student record which will follow him throughout any other educational opportunities. 60. As a result of these due process violations, John Doe was suspended and suffers ongoing harm and numerous damages. He was forced to withdraw from his classes and is marred by an erroneous record on his transcript that will always negatively affect future educational and employment opportunities. WHEREFORE, plaintiff John Doe prays judgment as hereinafter set forth. 10 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 10 of 12 Pageid#: 10

11 COUNT II VIOLATION OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION PURSUANT TO 42 U.S.C John Doe incorporates by reference all paragraphs of this Complaint as though fully set forth herein. 62. The First Amendment to the United States Constitution states that Congress shall make no law... abridging the freedom of speech. 63. The First Amendment protections to speech apply in a higher education setting. 64. John Doe had the right to express his views without punishment. 65. Virginia Tech violated John Doe s First Amendment Rights by punishing him for pure speech. WHEREFORE, plaintiff John Doe prays judgment as hereinafter set forth. COUNT III VIOLATION OF THE DUE PROCESS CLAUSE OF THE VIRGINIA CONSTITUTION 66. John Doe incorporates by reference all paragraphs of this Complaint as though fully set forth herein. 67. The Virginia Constitution states that no person shall be deprived of his life, liberty, or property without due process of law. Va. Const. art I For the reasons stated under Count I, Virginia Tech deprived John Doe of due process of his liberty interest in his education without due process of law. WHEREFORE, plaintiff John Doe prays judgment as hereinafter set forth. COUNT IV BREACH OF CONTRACT (Against the Board only) 69. John Doe incorporates by reference all paragraphs of this Complaint as though fully set forth herein. 11 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 11 of 12 Pageid#: 11

12 70. Virginia Tech and John Doe entered into a contract, providing, inter alia, that upon receipt of John Doe s enrollment and payment of tuition, John Doe and Virginia Tech would both abide by the Student Code of Conduct and that John Doe would be entitled to take the classes in which he was enrolled. 71. Virginia Tech breached the contract by suspending him without justification and by failing to consider the new information provided by John Doe in his appeal. 72. Virginia Tech has caused and is causing irreparable damage to John Doe s reputation, education, and future learning opportunities. WHEREFORE, plaintiff John Doe prays that judgment be entered in his favor for: (1) Preliminary and permanent injunctive relief restraining the Board from (a) continuing to enforce any punishment against John Doe, and (b) from noting the student conduct hearing findings and sanctions on his academic record or transcript (2) An amount to be proven at trial in this matter; and (3) Costs and such further relief as is just and equitable. Dated: April 25, 2017 HARVEY & BINNALL, PLLC 717 King Street, Suite 300 Alexandria, Virginia Telephone: (703) JOHN DOE By Counsel /s/ Jesse R. Binnall Jesse R. Binnall (VSB #79292) jbinnall@harveybinnall.com Counsel for Plaintiff 12 Case 7:17-cv MFU Document 1 Filed 04/25/17 Page 12 of 12 Pageid#: 12