Due Process Denied in Student Misconduct Case

Deborah Elkins//February 1, 2017

Due Process Denied in Student Misconduct Case

Deborah Elkins//February 1, 2017

A male college student wins summary judgment against James Madison University in his suit alleging he was not afforded due process in JMU’s investigation and discipline of him for sexual misconduct in allegedly forcing sex upon a female student; the Harrisonburg U.S. District Court says plaintiff was deprived of his protected property interest in continued enrollment at JMU, without adequate due process.

Student complaint

A female student, Jane Roe, claimed plaintiff assaulted her on an occasion when she did not consent to sexual intercourse and was too intoxicated to give consent. At the initial hearing before the Office of Student Accountability and Restorative Practices (OSARP), both students were given an opportunity to speak, to present witnesses, to question each other’s witnesses (though the head of OSARP), and each had a support person – in each case, a fellow student – with them who was not permitted to testify. At the end of the hearing, the OSARP board issued a written decision that plaintiff was “not responsible” on the charge of sexual misconduct.

Roe appealed. The appeal review board met while plaintiff was on semester break and determined that he should be suspended, so he was not permitted to return to JMU after his first semester on campus. The appeal board later issued a decision increasing the sanction to a five and one-half year suspension. The appeal board determination was sent to defendant Mark Warner, a JMU senior vice president, who affirmed the board decision and sanction, without any notice to or input from plaintiff. After Warner and the head of OSARP met with Doe’s parents and informed them the decision was final, the charge file was shredded, per JMU policy. Four months later, Doe sued JMU, its president, Jonathan Alger, and Warner under 42 U.S.C. § 1983.

Property interest

The undisputed facts show that plaintiff has a protected property interest in continued enrollment at JMU. The court agrees that interest is based on an express contractual relationship with JMU: “money in exchange for an education.”

Based on the undisputed evidence, the court concludes there was a mutual understanding and assent, as well as a practice, and therefore an enforceable entitlement under Virginia law. Thus, the court concludes Doe had not just a subjective sense of entitlement, but a “legitimate entitlement” to due process before being effectively expelled. The court concludes, as a matter of law, that Doe had a protected property interest.

The undisputed facts also establish that Doe was not afforded due process.

The appeal board provided no reasons for its decision. It reversed the decision in Doe’s favor without hearing any live testimony, even though a new issue of credibility had arisen, and even after considering additional evidence submitted by Roe, some of which was not even provided to Doe until after a final decision was made. Doe was not permitted to be present at the appeal hearing. The lack of explanation makes it impossible to tell whether the appeal board applied the wrong standard for gauging consent, as it appears may have been the case.

Doe was given no opportunity to respond to some of the evidence, was hampered by the rules prohibiting contact with witnesses or limited by time constraints in responding to others, and was not permitted to appear before the appeal board. Also, because the appeal board made no finding of responsibility by Doe and provided no reasons for its “Increased Sanction” decision, the appeal board decision and its review were unfair to Doe. The court concludes no reasonable jury could find Doe was given fundamentally due process. Doe is entitled to judgment in his favor on his due process claim as to liability.

Summary judgment for plaintiff.

Doe v. Alger (Dillon) No. 5:15cv35, Dec. 23, 2016; USDC at Harrisonburg, Va.; Humes J. Franklin III for plaintiff; John G. Butler III, OAG, for defendants. VLW 017-3-026, 30 pp.


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