Education: Virginia Tech defeats former student’s due process claim

Where a former Virginia Tech student alleged he was denied due process during a disciplinary proceeding, but the record showed he received constitutionally sufficient notice and had a meaningful opportunity to prepare for the hearing, the university prevailed on this claim.

Background

Joe Doe brings a constitutional claim pursuant to 42 U.S.C. § 1983 through which he claims that Virginia Tech violated his procedural due process rights as guaranteed by the Fourteenth Amendment when the university dismissed him after finding that he violated multiple school policies related to sexual violence (Count One). Doe also brings a statutory claim pursuant to Title IX on the grounds that Virginia Tech and Alexey Onufriev, Doe’s graduate advisor, discriminated and retaliated against Doe by improperly withholding federal grant funding from him because of his gender (Count Two). Defendants have filed a motion for summary judgment.

Procedural due process

Defendants contend that Doe cannot identify the tangible and independent source giving rise to his property interest in continued enrollment at Virginia Tech. The court disagrees. In addition to Virginia Tech’s Student Code of Conduct and Virginia Tech’s policies and procedures, the record includes the testimony of Tamara Cherry-Clarke, the assistant director of student conduct, that she conveyed Doe’s procedural guarantees directly to him during their March 3, 2020, meeting and her testimony that Virginia Tech did not dismiss students without a formal hearing.

The terms of the Code and Cherry-Clarke’s testimony that Virginia Tech did not dismiss students without cause demonstrate that Virginia Tech and Doe had a mutual understanding that Doe would not be dismissed from the university without cause. Accordingly, the evidence shows that Doe had a legitimate entitlement to his continued enrollment at Virginia Tech, which gave him the right to receive due process as guaranteed by the Fourteenth Amendment.

Doe argues that he received inadequate notice of the charges against him and of the hearing date. However the law does not establish a concrete period of advance notice that a university must give to a student accused of conduct violations. Nor does the law distinguish between notice of the charges faced and notice of a hearing date. Instead, notice will be sufficient where it gives the relevant parties sufficient time to prepare.

Considering the evidence in the light most favorable to Doe, the court finds that he received constitutionally sufficient notice. Doe first became aware of the investigation and potential charges against him on Feb. 17, 2020. He met with his advisor, Anthony Scott, the same day. Doe then had additional meetings with Scott, Barnett, Keene and Cherry-Clarke in the weeks preceding the March 6, 2020, hearing. To be sure, Cherry-Clarke denied Doe’s requests to continue the hearing, even though Doe told her that he had recently been in the hospital. But the court cannot conclude that these refusals deprived Doe of a meaningful opportunity to prepare for the hearing.

Doe also challenges his inability to ask a particular question during the hearing.  The Fourth Circuit does not require that universities allow cross-examination during conduct hearings. However, review of the audio recording of the hearing demonstrates that Doe was given the opportunity to ask, and successfully asked, questions of Barnett and Roe during the hearing. That the hearing officers declined to force Roe to answer this one question does not amount to a deprivation of due process.

Title IX

The Fourth Circuit has explained that a claim under Title IX requires “but … for causation.” That is, Doe must show that, but for his gender, Onufriev would not have withheld these NIH grant funds. The fundamental flaw in Doe’s discrimination claim is that there is no evidence that Doe’s gender influenced Onufriev’s funding decisions in any respect.

Turning to the Title IX retaliation claim, Doe struggles to identify any adverse action taken by Virginia Tech against him. Onufriev and other faculty members created certain milestones and deadlines as part of Doe’s plan to graduate with his Ph.D., and Onufriev’s refusal to include certain language in the green card letter had no impact on Doe, who subsequently received his green card. Additionally, even if Onufriev insulted Doe, there is no evidence to show that these insults affected Doe’s status at Virginia Tech.

Defendants’ motion for summary judgment granted.

Doe v. Virginia Polytechnic Institute and State University, Case No. 7:21-cv-378, Sept. 26, 2024. WDVA at Roanoke (Urbanski). VLW 024-3-527. 48 pp.