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University student’s Due Process claim dismissed

Virginia Lawyers Weekly//March 9, 2023

University student’s Due Process claim dismissed

Virginia Lawyers Weekly//March 9, 2023//

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Where a former Virginia Tech student alleged that the university violated his procedural Due Process rights, but he failed to identify a policy or custom that conferred a property right in continued enrollment, this claim was dismissed.


John Doe has sued Timothy Sands, as president of Virginia Tech in his official capacity, and Tamara Cherry-Clarke, an employee in the Virginia Tech Office of Student Conduct, in both her official and individual capacities, for violation of the Due Process Clause. Doe also asserts claims against Virginia Tech and Dr. Alexey Onufriev, Doe’s graduate advisor, for violating Title IX. Defendants have filed a motion to dismiss.


Defendants contend that Doe’s claims for money damages against Sands and Cherry-Clarke in their official capacities are barred because a plaintiff may seek money damages only against a person under 42 U.S.C. § 1983 and an official-capacity suit against a state officer is not a suit against the person, but rather against the person’s office. Defendants also argue that Title IX does not authorize lawsuits against individuals.

Doe agrees with defendants. Accordingly Doe’s claims for money damages brought against Sands and Cherry-Clarke in their official capacities are dismissed with prejudice. In addition, Doe’s Title IX claim against Onufriev is dismissed with prejudice.

Due Process

To succeed on a procedural due process claim, a plaintiff must show (1) that he had a constitutionally cognizable life, liberty or property interest; (2) that deprivation of that interest was caused by some form of state action and (3) that the procedures employed were constitutionally inadequate.

Doe alleges that he has a property interest in continued enrollment arising from his and Virginia Tech’s agreement based on Virginia Tech’s “various policies and customs.” Without identifying the policy or custom that confers on him the property right in continued enrollment, Doe cannot state a claim for deprivation of his right to Due Process.

Doe further alleged that the Virginia Tech Code of Conduct guaranteed that he could not be arbitrarily removed as a student if he paid tuition, met the academic requirements and abided by the university’s conduct system. However, nothing in any of the language cited creates a property interest in continued enrollment. Accordingly, this claim is dismissed. The court alternatively finds that, even if Cherry-Clarke did not provide Doe with constitutional due process, she enjoys qualified immunity against Doe’s claims brought against her in her personal capacity.

Title IX

Doe claims that he was discriminated against on the basis of his sex in violation of Title IX when Onufriev allocated $40,000 of research grant funding to a female graduate student who was not involved in the grant research. He also alleges that Virginia Tech created a hostile environment and retaliated against him for reporting discrimination.

Virginia Tech asserts that Doe’s Title IX claim is barred by the statute of limitations. Because Title IX does not contain an express statute of limitations, courts apply “the most closely analogous statute of limitations under state law.” In this case, the most analogous statute of limitations under state law is Virginia’s two-year personal injury limitations period. Doe has alleged that he learned in August 2019 that he would not be receiving funds for a second year. Accepting Doe’s allegation as true, the court finds that for purposes of this motion to dismiss, the claim is timely.

In addition, to state a claim for discrimination under Title IX, a plaintiff must show that gender was the “but for” cause of negative treatment. Doe has plausibly alleged that Onufriev denied him grant funding on the basis of sex when Onufriev gave the funding to a female student and asked, “Who can resist a Persian princess?”

The basis of Doe’s hostile environment allegation is that Onufriev often met with the female student but ignored Doe’s requests to meet for office hours, left him waiting for long periods of time and often simply failed to show up to scheduled meetings. These allegations do not plausibly state a claim of hostile environment-sexual harassment. This claim is dismissed.

Doe’s allegation that he reported to Dr. Mark Pitt, chair of the physics department at Virginia Tech, that he did not receive the NIH grant funds is sufficient at this point in the proceedings to show that Doe engaged in protected activity under Title IX. And Doe’s allegation that Pitt shared information about the complaint with Onufriev and Onufriev purposefully created unnecessary obstacles that impeded Doe’s ability to finish his degree states a claim that he suffered an adverse action. Accordingly, Virginia Tech’s motion to dismiss this claim is denied.

Defendants’ motion to dismiss granted in part, denied in part.

Doe v. Virginia Polytechnic Institute & State University, Case No. 7:21-cv-00378, Feb. 23, 2023. WDVA at Roanoke (Urbanski). VLW 023-3-073. 32 pp.

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