IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA ( Roanoke Division)

Transcription

1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA ( Roanoke Division) JOHN DOE, ) ) Plaintiff, ) ) Civil Action No: 7:17cv176 v. ) ) VIRGINIA POLYTECHNIC INSTITUTE ) AND STATE ) UNIVERSITY, FRANCES B. KEENE, ) CAROLINE GREEN, KATIE BYLENGA, KYLE ROSE and TIMOTHY D. SANDS, Defendants, DEFENDANTS BRIEF IN OPPOSITION TO PLAINTIFF S MOTION FOR INTERLOCUTORY RELIEF Defendants, by undersigned counsel, submit this brief in opposition to Plaintiff s Motion for Interlocutory Relief. Plaintiff has moved the Court for a temporary restraining order or alternatively a preliminary injunction on the grounds that Defendants violated his Due Process and First Amendment rights. The facts and law of this case prove that Plaintiff is not entitled to such extraordinary relief, because he is highly unlikely to succeed on the merits of this case. Facts Plaintiff received more than adequate notice of the potential charges against him and had multiple opportunities to be heard and present witnesses. Plaintiff s conduct, not his speech, earned him his suspension. Plaintiff received notice that he been referred to student conduct on March 10, Exhibit A, Affidavit of Caroline E. Green. Caroline Green verbally explained the Page 1 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 1 of 11 Pageid#: 55

2 charges, procedure, and possible outcomes to Plaintiff on March 13, Id. Ms. Green reviewed her report of allegations with Plaintiff, which also outlined the charges against him. Id. In addition, Ms. Green also provided Plaintiff with a written Student Conduct Informational Meeting document and reviewed the document with Plaintiff page by page. Id. Plaintiff initialed each page and signed the document. Id. The document explains the student conduct process and procedures, and informed Plaintiff of the possible outcomes and his right to produce witnesses and have an adviser. Id. In addition, the student conduct process is extensively outlined at and in the Hokie Handbook, all of which were available to Plaintiff at all times. During the March 13 meeting, Plaintiff and Ms. Green agreed upon the hearing date of March 17, and Plaintiff received a follow-up Student Conduct Hearing Notification. Id. Plaintiff received additional notice of his procedural guarantees and the charges against him at the hearing on March 17. Exhibit B, Transcript of Hearing, p.1-6. The hearing officers provided Plaintiff an opportunity at the hearing to present witnesses, and Plaintiff declined. Id. at 3. The hearing officers found Plaintiff responsible for Disorderly or Disruptive Conduct and Participating in University Violation. Plaintiff admitted to this conduct at the hearing. Transcript of Hearing, 15 and 19. The disruptive conduct consisted of repeatedly adding members involuntarily back to a chat group who had voluntarily left the group. Id. at 15. Plaintiff added the member in to expose the members to shocking content or dark humor, which was the reason the members left in the first place. Id. Page 2 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 2 of 11 Pageid#: 56

3 Plaintiff also admits that he participated in the antics of another student who was found responsible for harassment. Id. at 23 and 26. Applicable Law for Interlocutory Relief Preliminary injunctive relief is an extraordinary remedy that should be granted sparingly and only in limited circumstances. In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003). As a condition precedent to preliminary injunctive relief, a Plaintiff must show that the relief is necessary to prevent harm that is both irreparable and immediate. Id. at 527; Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991). If the plaintiff has satisfied this condition, a court then engages in a four-factor balancing test to determine whether to grant the requested relief. In re Microsoft, 333 F.3d at 527. The court considers: (1) the likelihood of irreparable harm to the plaintiff if the requested relief is not granted; (2) the likelihood of harm to the defendant if the relief is granted; (3) the likelihood that plaintiff will succeed on the merits; and (4) the public interest. Id.; Direx Israel, Ltd., 952 F.2d at 811. Plaintiff bears the burden of establishing that each of the four factors supports granting an injunction. Id. at 812. Plaintiff has failed to make the threshold showing necessary to entitle him to injunctive relief.1 That is, he has not shown that exigent circumstances exist requiring 1 This Court and other federal courts have held that state universities are an instrumentality of the state and immune from suit in federal court. See Cobb v. Rector and Visitors of Univ. of Va., 69 F.Supp.2d 815, (W.D.Va.1999); see also Collin v. Rector and Bd. of Visitors of Univ. of Va., 873 F.Supp. 1008, 1013 (W.D.Va.1995); Wilson v. University of Va., 663 F.Supp. 1089, 1092 (W.D.Va.1987); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Moreover, to the extent that Plaintiff has sued all other individual defendants in their official capacities, those suits are barred to the extent plaintiff seeks monetary relief. See Cobb, 69 F.Supp.2d at 824; see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Of course, the 11th Amendment does not bar Plaintiff s suit against the individual Page 3 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 3 of 11 Pageid#: 57

4 the extraordinary remedy he has requested. Furthermore, the first two factors of the four-part test indicate that preliminary injunctive relief is not appropriate. As explained more fully below, the second two factors also weigh in Defendants favor and against Plaintiff. Discussion of Law and Facts I. Plaintiff Cannot Show That He Is Likely to Succeed on the Merits of His Due Process Claim The Plaintiff alleges a violation of Due Process required to comport with the Constitution. Plaintiff alleges that the university 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. Complaint at 51. In the context of student discipline, the Due Process Clause requires notice and an opportunity to be heard. See Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir.1961); Gorman v. University of Rhode Island, 837 F.2d 7, 12 (1st Cir.1988); Carey v. Maine Sch. Admin. Dist. No. 17, 754 F.Supp. 906, 918 (D.Me.1990); Reilly v. defendants in their official capacities to the extent that he seeks prospective injunctive relief, see Cobb, 69 F.Supp.2d at 824; see also Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Page 4 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 4 of 11 Pageid#: 58

5 Daly, 666 N.E.2d 439, 444 (Ind.Ct.App.1996). The Plaintiff acknowledges that he received notice of the charges and the hearing in advance four days in advance. At the hearing, the Plaintiff was asked by the hearing officers if he had any witnesses to present, and he answered that he did not have witnesses to present. The university does not compel witnesses to attend and it is the responsibility of students to ensure witness attendance at their hearing.2 Furthermore, a copy of the hearing transcript and audio is being presented to the Court to demonstrate that Virginia Tech did not deprive the Plaintiff of due process.3exhibit B. The hearing transcript reveals that throughout the hearing, the hearing officers repeatedly and extensively provided Plaintiff opportunities to speak and asked him his version of events. Id. The student did have an informational, pre-hearing meeting with Student Conduct prior to the formal hearing. At this meeting, March 13, 2017, the student was presented by Caroline Green, an employee of Student Conduct, with a copy of a document, Student Conduct Informational Meeting, along with a copy of the charges. Doe signed and initialed each page of the Student Conduct Informational Meeting document and the document was explained to him by Green. Exhibit A, Attachment 4. 2 Although students or organizational representatives may remain silent during a formal hearing, they may choose to refute or question any information or witnesses and will be given an opportunity to present a rebuttal to the charges and to produce witnesses or written statements on their own behalf. Virginia Tech Student Conduct System ( 3 University faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation. See Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 225 (1985), Quarterman v. Byrd, 453 F.2d 54, 56 (4th Cir.1971) (recognizing that in matters of school discipline the courts should defer to the expertise of the school authorities ). Due process, as the Sixth Circuit explained, mandates only that they be afforded a meaningful hearing. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ( The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. ); Richardson v. Eastover, 922 F.2d 1152, 1160 (4th Cir. 1991). Page 5 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 5 of 11 Pageid#: 59

6 This document, in addition to providing information about the conduct process and the charges that the student faced, clearly states on page two that the outcome of [that] formal hearing will be final unless the hearing results in a loss of privilege (e.g. suspension, dismissal, denial of on-campus housing, network access or athletic privileges). Exhibit A, Attachment 4. Moreover, the University Policies for Student Life, one of the governing documents of the university, clearly states: The following student conduct sanctions may be imposed upon a student or student organization for violation of university policy. Further delineated within this sanctioning information is Suspension from the University as a possible outcome: Suspension from the University Student is notified that he or she is separated from the university for a specified period of time. Students who are suspended must leave campus within the time prescribed by the hearing/appeal officer. Permission to return to Virginia Tech may be required by the director of student conduct. Permission must be granted before a student will be permitted to reenroll. If the decision to suspend a student is made, imposition of the suspension may be delayed until the following semester at the discretion of the university, for example if the decision occurs very late in the semester. Suspensions effective for the subsequent semester will be effective immediately following the conclusion of the current semester. However, if the hearing officer feels that the health and safety of the student or the university community is at risk, the suspension may be effective immediately. A notation is placed on the student's academic transcript: suspended for a violation of the Student Code of Conduct. Page 6 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 6 of 11 Pageid#: 60

7 For student organizations, recognition with the university is withdrawn for a specified period of time. Permissions to regain status may be required by the director of student conduct and other appropriate university officials. For students involved in serious misconduct that could result in suspension and have completed their academic course work, the conferring of an academic degree will be withheld for a specified period of time. Further, contrary to his assertion, Doe did have an opportunity to explain his version of events at the formal hearing. This opportunity clearly and fully comports with the requirements of Due Process. In the context of student discipline, the Due Process Clause requires notice and an opportunity to be heard. See Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir.1961). The student was provided this opportunity and he availed himself of that opportunity at the hearing. Therefore, Plaintiff has not shown a strong likelihood of success on the merits due to a violation of Due Process in order to obtain the requested interlocutory relief. In re Microsoft, 333 F.3d at 526. Plaintiff has failed to clear[ly] show [ ] that [he] is likely to succeed on the merits. Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir.2011) (citing Winter, 555 U.S. at 22, 129 S.Ct. 365). Plaintiff cannot carry this burden because he claims he was denied rights to which he is not clearly entitled. The Supreme Court has assumed, without actually deciding, that while university students possess a constitutional protectable right in their continued enrollment in a university, Tigrett v. Rector & Visitors of Univ. of Va., 290 F.3d 620, 627 (4 th Cir. 2002), students' due process rights may be satisfied by something less than a Page 7 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 7 of 11 Pageid#: 61

8 trial-like proceeding. Henson v. Honor Comm. of Univ. of Va., 719 F.2d 69, 74 (4 th Cir.1983) (citing Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).The Plaintiff cannot succeed on this 1983 claim because Plaintiff cannot show that Defendants deprived him of due process. II. Plaintiff Cannot Show That He Is Likely to Succeed on the Merits of His First Amendment Claim In the case sub judice, the Plaintiff makes an argument about a First Amendment violation. This is a red herring argument. The facts demonstrate that behavior and disruptive conduct provided the grounds for discipline, not a sanctioning of the content of his speech. John Doe and John Smith managed a Facebook message group. When students left the group because the content had gone too far, John Doe and John Smith would add them back, involuntarily, in order to expose them to shocking content or dark humor. This conduct was meant to be disruptive, similar to repeated prank phone calls. Virginia Tech found students Doe and Smith responsible for disorderly/disruptive conduct as well as involvement in a university violation. This finding was not predicated upon the speech disseminated by Doe on the Facebook message group page. The Virginia Tech policy on disruptive conduct clearly articulates that conduct that interferes with others may be a violation of university policy.4 Doe acknowledged in the hearing 4 Disorderly or Disruptive Conduct Engaging in disorderly or disruptive conduct that: 1. Disturbs the peace 2. Interferes with the performance of the duties of public/civil officials. Page 8 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 8 of 11 Pageid#: 62

9 that he added people back into the Facebook message group after they withdrew from it. The hearing officers specifically found, [W]hile we believe the behavior to be uncivil, our decision was not based on the communication simply being vulgar or offensive. The decision was based on the violation of university policy. We determined the behavior of Mr. Doe to be disorderly and disruptive [.] Exhibit C. Additionally, Doe was found responsible for a violation of university policy related to involvement in a university violation.5 In this determination, the hearing officers took into consideration that Doe was able to describe the majority of policy violations in detail when the other charged student, John Smith, was unable to, including an abusive conduct/harassment charge that Smith was found responsible for. The university in these charges did not punish free speech or the First Amendment. It was conduct and behavior of Doe that was lawfully punished. In a recent case in which the United States Supreme Court denied certiorari, the circuit court held that Put another way, conduct by the student, in class or out of it, which for any reason... materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized.... Bell v. Itawamba County Sch. Bd., 774 F.3d 280 (2014)(citing Tinker v. Des Moines Indep.Cmty. Sch. Dist., 393 U.S. 3. Interferes with the rights and/or activities of others 4. Interferes 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. ( 5 Involvement in a University Violation - Presence during any violation of the Student Code of Conduct and/or the 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.) Page 9 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 9 of 11 Pageid#: 63

10 503, 514, 89 S.Ct. 733, 21L.Ed.2d 731 (1969). Doe was found responsible for involvement in a university violation and also disorderly conduct for his behavior, not predicated upon free speech. In closing, the Plaintiff has alleged to have suffered two violations of the United States Constitution as a result of the Virginia Tech Student Conduct decision, related to due process and First Amendment. The Plaintiff is unlikely to succeed on the merits for these claims and the motion for interlocutory relief should be denied. Dated: April 26, 2017 VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY, FRANCES B. KEENE, CAROLINE GREEN, KATIE BYLENGA, KYLE ROSE and TIMOTHY D. SANDS, By Counsel /s/ M. Hudson McClanahan Kay K. Heidbreder (VSB # 22288) Stephen F.Capaldo (VSB # 74045) M. Hudson McClanahan (VSB # 46363) 236 Burruss Hall Blacksburg, VA Telephone: Facsimile: scapaldo@vt.edu Counsel for Defendants Page 10 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 10 of 11 Pageid#: 64

11 CERTIFICATE OF SERVICE I hereby certify that on April 26, 2017, I filed the foregoing using the Clerk s CM/ECF system, which will provide notice to all counsel of record. There are no pro se parties. Additionally, I sent via electronic mail a copy of the foregoing to: Jesse R. Binnall, Esq. HARVEY & BINNALL, PLLC 717 King Street, Suite 300 Alexandria, VA Tel: (703) Fax: (703) jbinnall@harveybinnall.com Counsel for Plaintiff /s/ M. Hudson McClanahan M. Hudson McClanahan (VSB # 46363) 236 Burruss Hall Blacksburg, VA Telephone: Facsimile: scapaldo@vt.edu Page 11 of 11 Case 7:17-cv MFU Document 10 Filed 04/27/17 Page 11 of 11 Pageid#: 65