Virginia Lawyers Weekly VA Lawyers Weekly
Where a Virginia Tech student filed suit against university officials after he was found responsible for “Sexual Violence-Rape,” his Title IX and 14th Amendment Equal Protection claims were dismissed. The student did not allege any facts that would establish that his gender played a role in the defendants’ actions.
Background
Robert Dillow, then a student at Virginia Tech, was found responsible for the offense of “Sexual Violence-Rape” by a panel of Virginia Tech employees. As a result, he was suspended for two years. Dillow appealed that judgment under the university’s Title IX protocol, but he was unsuccessful.
Dillow brought suit in this court against Virginia Tech and several administrators related to the Title IX investigation and trial. This matter is now before the court on three motions to dismiss.
Insufficient service
Defendants Sloan and Tully assert that they were not timely served with the summons and complaint and so the allegations against them should be dismissed without prejudice. Because the record does not demonstrate a serious effort to locate Sloan or Tully in order to serve them properly, Dillow has not shown “good cause” or “excusable neglect” for his failure to serve them in the time allotted. Accordingly, the claims against Sloan and Tully will be dismissed without prejudice.
Jurisdiction
Virginia Tech and the administrator defendants all move to dismiss the claims against them for lack of jurisdiction. Virginia Tech argues that it is not a “person,” and therefore is not subject to suit under § 1983. As to the § 1983 and state law claims, Virginia Tech argues that it is protected by the sovereign immunity afforded by the Eleventh Amendment. The court agrees.
The administrator defendants argue that, although the complaint is styled against each of them in their “individual capacities,” Dillow’s claims are actually official capacity suits, meaning they are actually against Virginia Tech, and therefore barred for the same reasons. The court agrees and will dismiss the counts for due process, equal protection, breach of contract, negligence and negligent infliction of emotional distress. And because Title IX does not authorize suit against school officials, teaches and other individuals, this claim will be dismissed against the administrator defendants.
Merits
Dillow alleges that the hearing panel issued its ruling on April 24, 2020, but he did not file this action until June 2, 2022. Therefore, unless the statute of limitations period was tolled for approximately 40 days, Dillow’s § 1983 and Title IX claims are time barred. Because the statute of limitations was tolled during the Covid-19 pandemic, however, his complaint was filed within the applicable statute of limitations.
The defendants argue that Dillow has not alleged a sufficient liberty or property interest, such that his Due Process rights were not implicated by Virginia Tech’s actions. The case law is very clear that, absent some special pleading or allegation, an individual does not have a per se liberty or property interest in continued enrollment in a college or university.
The court finds that Dillow’s bare-bones allegations of a “contract” between himself and Virginia Tech — without any effort to define its scope or terms, much less how it relates to processes and procedures when a student is accused of raping another — simply does not allege, for purposes of a motion to dismiss, a legitimate liberty or property interest. Accordingly, his claim will be dismissed.
But more fundamentally, accepting his allegations at face value, Dillow has pleaded that he received due process. Regarding Dillow’s Title IX and 14th Amendment Equal Protection claims, Dillow has not alleged any facts that would establish that his gender played a role in the defendants’ actions. All of Dillow’s state-law claims are barred by his failure to present notice of them to the proper individuals or agencies, as required by Virginia law.
Defendants’ motions to dismiss granted.
Dillow v. Virginia Polytechnic and State University, Case No. 7:22-cv-00280, March 2, 2023. WDVA at Roanoke (Cullen). VLW 023-3-091. 28 pp.
