Education: Officials sued for violating ex-student’s due process rights

Where a former graduate student at Virginia Tech alleged that he was given only 24 hours’ notice of a disciplinary hearing, and that the university denied his request for a continuance, which affected his ability to prepare his defense, he plausibly alleged a due process claim against the university president and a university director.

Background

John Doe’s third amended complaint asserts two causes of action: (1) against Timothy Sands, as president of Virginia Tech in his official capacity, and Tamara Cherry-Clarke, in both her official capacity as Assistant Director of Student Conduct at Virginia Tech and in her individual capacity, for violating the Due Process Clause and (2) against Virginia Tech for violating Title IX. Defendants have filed a motion to dismiss.

Due process

It is undisputed that the Commonwealth of Virginia has not created a property interest in a continued public university education. However, courts in this district have determined that, in the absence of a state statute, a plaintiff can plead an “independent source” sufficient to withstand a motion to dismiss by alleging that the university at issue, through its policies or practices, does not expel, suspend or dismiss students without cause.

Doe alleges that the Virginia Tech code provisions, taken together, “provid[e] for the sanction of dismissal solely as an outcome of the Student Conduct Process.” In other words, Doe alleges that it created an expectation that students “could only be dismissed after a finding is made that a student violated” the code. Accordingly, the court finds that, construing all well-pleaded allegations in the light most favorable to Doe, Doe has now sufficiently pled that he had a property interest in his continued enrollment at Virginia Tech, and the court “will give him the opportunity to prove the legitimacy of his claim to a property right ‘in light of the policies and practices of the institution.’”

Doe pleads that the 24 hours’ notice he received from Virginia Tech of his disciplinary hearing was inadequate. The court finds that Doe has sufficiently alleged that the one-day notice of the hearing Doe received was inadequate to afford him due process. Doe pleads that he learned on March 5, 2020, that his hearing would be held the next day.

Further, upon learning that his hearing was set for the next day, Doe contacted Cherry-Clarke to request a continuance of the hearing, explaining that he did not have enough time to prepare or to gather the evidence he needed to defend himself, and that Cherry-Clarke denied this request. Finally, Doe alleges that the inadequate notice affected his ability to present his own defense.

Individual defendants

Defendants argue that Virginia Tech is the real party in interest for purposes of the official capacity claims and, accordingly, the official capacity claims against Sands and Cherry-Clarke are duplicative. The cases that defendants cite involve instances in which a plaintiff brings the same claim against the entity and the individual defendants.

Here, by contrast, Doe brings his due process claim against Sands and Cherry-Clarke only and his Title IX claim (Count Two) against Virginia Tech. Accordingly, the court finds that those cases are inapposite and denies defendants’ motion to dismiss Sands and Cherry-Clarke — the only defendants to the due process claim — on that basis.

Title IX

Defendants also argue that Doe’s Title IX claim should be dismissed for failure to state a claim. The court previously concluded that Doe failed to allege facts showing that he “was subjected to harassment based on [his] sex.”

Doe’s new allegations do not resolve this deficiency. To satisfy the second element of Doe’s claim, Doe must proffer facts showing that Onufriev subjected him to harassment based on his sex, which “occurs when the victim is subjected to sex-specific language that is aimed to humiliate, ridicule, or intimidate.” While some of the new facts certainly provide additional color to Onufriev’s rude behavior — bolstering Doe’s grant funding and retaliation claims — they do not help Doe establish that he was “subjected to harassment based on his sex.”

Accordingly, Doe has not pled facts sufficient to state a claim for Title IX based on hostile environment, and the court dismisses the claim with prejudice. However, consistent with its prior ruling, Doe may proceed on his Title IX claim based on 2019-20 grant funding and retaliation.

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

Doe v. Virginia Polytechnic Institute and State University, Case No. 7:21-cv-378, Apr. 2, 2024. WDVA at Roanoke (Urbanski). VLW 024-3-211. 36 pp.