ENTRY ON DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on Defendants’ Motion to Dismiss (Filing No. 11). While a student at Indiana University-Purdue University Indianapolis (“IUP-UI”), Plaintiff Jeremiah Marshall (“Marshall”) was suspended, expelled and banned from all Indiana University campuses, following accusations of sexual assault by a female student. On April 6, 2015, Marshal filed this action in the Marion Superior Court, alleging that Defendants’ policies and response to the accusations denied him due process and free speech rights under both the state and federal Constitutions, and violated his rights under Title IX of the Education Amendments of 1972 (“Title IX”), and the Fourth, Fifth and Fourteenth Amendment’s to the United States Constitution. On May 6, 2015, the Defendants removed the case to federal court and filed their motion to dismiss. For the reasons stated below, the Court grants in part and denies in part the Defendants’ motion.
I. BACKGROUND
The following facts are taken from Marshall’s Complaint (Filing No. 1-1) and must be accepted as true solely for purposes of the motions to dismiss. See Erickson v. Pardus,
The next day, September 8, 2014, Marshall emailed Defendant, Jason Spratt (“Dean Spratt”), the Dean of Students at IUPUI, to appeal the interim suspension and eviction from campus. Dean Spratt promptly responded that the interim suspension would remain in place and that Marshall was only permitted on campus for the purpose of meeting with the Office of Student Conduct. While on interim suspension, Marshall was not permitted to attend classes or to access the on-campus Counseling and Psychological Services Center.
On September 17, 2014, Marshall emailed Dean Spratt, Defendant Brian Tomlinson (“Mr. Tomlinson”), the Assistant Dean and Director of Student Conduct, and Defendant Maria Hinton (“Ms. Hinton”), the Assistant Director of Student Conduct, for permission to meet with the Office of Student Conduct. Later that day, Marshall and his father met with Mr. Tom-linson. The next day, September 18, 2014, Marshall received a letter from Ms. Hinton stating that he was accused of on-campus personal misconduct.
Five days later, on September 22, 2014, Marshall met with Ms. Hinton and informed her that he too had been sexually assaulted by another female student. (Filing No. 1-1 at 5.) However, the Defendants never investigated Marshall’s reported sexual assault. (Filing No. 1-1 at 11; Filing No. 14 at 21.)
At some point thereafter, Marshall was permitted to view the evidence against him in a closed room at IUPUI, but he was not allowed to have his own copy nor was he allowed to photograph the evidence. On October 13, 2014, Dean Tomlinson provided Marshall with a witness list but prohibited Marshall from contacting any of the witnesses and instructed him that he should not contact other IUPUI students to testify on his behalf.
On October 15, 2014, Marshall retained counsel to represent him in the upcoming disciplinary hearing. Marshall’s legal team was similarly denied copies of the evidence, which exceeded over one hundred pages in length. (Filing No. 1-1 at 7; Filing No. 14 at 24.) After intervention by IUP-UI’s General Counsel, Marshall’s attorneys were eventually permitted to read the evidence on the IUPUI campus and take handwritten notes. However, in order to prevent the attorneys from copying the evidence, they were not allowed to take their cell phones into the room. (Filing No. 1-1 at 7; Filing No. 14 at 24.)
On October 30, 2014, 53 days after his interim suspension and eviction occurred, Marshall attended a disciplinary hearing. (Filing No. 1-1 at 8.) The proceeding took place before a three-person panel, consisting of Defendants Dr. Chad Ahren, Dr. Melanie Peterson and Diana Sims-Harris (“the Panel”). In addition, Dean Tomlinson served as a non-voting coordinator on the Panel.
Ms. Hinton, a non-practicing attorney and cum laude graduate of the University
At the hearing, Marshall testified and IUPUI Campus Police officers testified. However, the alleged victim did not testify and the Panel heard only hearsay evidence regarding the allegations against Marshall. The Panel assessed the allegations based on a preponderance of the evidence standard. (Filing No. 1-1 at 9.)
On October 30, 2014, Marshall received a letter from Dean Tomlinson, stating that the Panel had found him guilty of Personal Misconduct, that he was expelled from IUPUI, and that he was banned from all Indiana University campuses. On November 4, 2014, Marshall appealed the lifetime expulsion and ban, which IUPUI denied a week later, on November 11, 2014.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal if the complaint fails to sets forth a claim upon which relief can be granted. “The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits.” Gibson v. City of Chi.,
At a minimum, the complaint must give the defendant fair notice of what the claim is and the grounds upon which it rests, and the factual allegations must raise a right to relief above the speculative level. See Bissessur v. Ind. Univ. Bd. of Trs.,
III. DISCUSSION
In his complaint, Marshall’s alleges multiple due process violations, violations of his rights to free speech, violation of his rights under Title IX and violation of his Fourth, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. The court will address each claim in turn.
A. Counts 1 and 3: Due Process
Defendants contend that Marshall has not pled a viable due process claim. Al
To begin, Marshall argues persuasively that the same due process standards applicable to “grade school food-fights” should not also apply to disciplinary proceedings in higher education, where adult students face expulsion for allegations of sexual assault. Marshall contends that expulsion from a state university system has serious and long-term economic consequences. See James M. Piccozi, Note, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 YALE L.J. 2132, 2138 (1987) (“[t]he most significant alteration of an expelled student’s status, though, is his inability to re-enroll at another university. A subsequent university to which a student may apply always knows of the reasons for his prior dismissal. If he leaves without having earned his degree, the student must make an affirmative showing to any subsequent university to which he applies that he left the original university in good standing”); Furey v. Temple Univ.,
In addition, Marshall asserts that, given the gravity of the charges he was facing and the severity of the penalties imposed, his attorneys should have been allowed to participate at his disciplinary hearing, rather than merely attend. See Osteen v. Henley,
Further, Marshall argues that he was denied a “meaningful” opportunity to review the evidence against him and to defend himself. See Gorman v. Univ. of Rhode Island, 837 F.2d 7, 13 (1st Cir.1988) (“[t]he hearing, to be fair in the due process sense, implies that the person adversely affected was afforded the opportunity to respond, explain, and defend”). Marshall notes that he and his attorneys were not allowed to obtain copies of the evidence against him prior to the hearing and were prohibited from interviewing witnesses while preparing his defense. Marshall asserts that the Defendants deliberately requested the presence of a uniformed police officer at the disciplinary hearing, which forced Marshall into the untenable position of having to choose between his due process rights and his Fifth Amendment right to not testify against himself.
Additionally, Marshall contends that a higher evidentiary standard should have been applied at his disciplinary hearing, instead of the minimal “preponderance of the evidence” and “some evidence” standards. Specifically, Marshall argues that a higher “substantial evidence” standard should have been required, given the qua
Finally, Marshall argues that the Panel that heard his case was biased. Specifically, Marshall contends that the Panel was under pressure to aggressively prosecute campus sexual assault allegations, due to ongoing investigations against Indiana University-Bloomington for Title IX noncompliance. See Tyler Kingkade, Barnard College Joins List of 91 Colleges Under Title IX Investigations, HUFFINGTON POST, Jan. 7, 2015, www.huffingtonpost. com/2015/01/07/barnard-college-title-ix investigations_n_6432596.html. Further, both Ms. Hinton and Mr. Tomlinson, who led the investigation into the charges against Marshall, also improperly participated in the Panel’s deliberations. See Whitford v. Boglino,
In response, the Defendants note that Marshall received all the process that was due to him under the laws of Indiana and the Seventh Circuit. The Defendants note that the due process rights of students facing discipline in an educational setting are not the same as those afforded to defendants in a criminal or quasi-criminal setting. See Linwood v. Bd. of Educ. of the City of Peoria,
Defendants point out that the only process that was required was “some kind of notice” and “some kind of hearing”. See Goss v. Lopez,
Addressing Marshall’s more specific due process arguments, the Defendants note correctly that the Seventh Circuit has not recognized a student’s right to an attorney in educational disciplinary proceedings, particularly not in the manner advocated by Marshall. See Osteen,
Defendants argue that they were within their rights to have an attorney represent IUPUI’s case at the hearing and participate in the deliberations. See Lamb v. Panhandle Cmty. United Sch. Dist. No. 2,
Although Marshall’s argument that more process was potentially warranted in his case is compelling, particularly with regard to the seemingly deficient eviden-tiary standard applied by the Defendants at the hearing, his arguments do not find support under either Indiana or Seventh Circuit law. The Court is bound by what the law is and not by what Marshall believes the law ought to be. Notably, Marshall solely cites out-of-Circuit cases and secondary sources to support each of his arguments, none of which are binding upon this Court. Importantly, Marshall has not alleged that the Defendants based their expulsion decision on less than “some evidence”, arguing instead that the standard of review should change. As the law stands in Indiana and in the Seventh Circuit, the Defendants were not required to give Marshall any more process than he received; and, therefore, dismissal of Marshall’s due process claims is warranted.
Further, because Marshall has failed to identify a knowing violation of clearly established due process rights, as defined by Indiana law or the Seventh Circuit, the individual Defendants are also entitled to qualified immunity against Marshall’s due process claims. See Saucier v. Katz,
B. Counts 4 and 5: Free Speech
Marshall also has not pled a viable free speech violation. In this regard, Mar
In his response, Marshall failed to identify even a single case to demonstrate a recognized free speech right to interview witnesses prior to an educational disciplinary hearing. Instead, he points to cases’ wherein criminal defendants are afforded the rights to compel and cross-examine witnesses under the Sixth Amendment of the United States Constitution. See, e.g., Washington v. Texas,
In addition, as with his due process claims, because Marshall has failed to identify a clearly established free speech right to interview witnesses prior to an educational disciplinary hearing, under either Indiana or Seventh Circuit law, the individual Defendants have qualified immunity against Marshall’s free speech claims as well. See Saucier,
C. Count 6: 42 U.S.C. § 1983
Marshall has also failed to articulate a viable constitutional claim under the Fourth, Fifth, or Fourteenth Amendments, pleading no particular facts to support this claim. See Iqbal,
D. Count 2: Title IX Discrimination
However, Marshall has minimally pleaded a viable Title IX gender discrimi
While Marshall cannot proceed on a disparate impact theory of liability under Title IX, the Defendants cannot credibly argue that the issue of intentional gender discrimination is not factually alleged by Marshall’s assertion of selective, gender-based enforcement against Marshall personally. See Ludlow v. Nw. Univ.,
Further, although Marshall’s pleading may lack the contours of more particularized facts, the Defendants do not deny that they are in sole possession of all information relating to the allegations made by and against Marshall, notably refusing, at all times, to share such information with Marshall or his attorneys. In this regard, the Defendants cannot have it both ways, restricting access to the facts and then arguing that Marshall’s pleading must be dismissed for failure to identify more particularized facts. Instead, whether the facts alleged sufficiently ultimately support a claim for intentional gender discrimination under Title IX is a question for a later stage in this litigation, after fair and robust discovery by both sides.
Finally, Title IX authorizes suits against institutions and programs only and does not authorize suits against school officials, teachers, or other individuals. Levin v. Madigan,
E. Count 7: 42 U.S.C. § 1988
Because Marshall’s Title IX claim remains pending, dismissal of Marshall’s Section 1988 claim is not appropriate. See 42 U.S.C. § 1988(b) (“[i]n an action or proceeding to enforce a provision of.. .title IX of Public Law 92-318.. .the court, in its discretion, may allow the prevailing party...a reasonable attorney’s fees as part of the costs”). Accordingly, the Defendants’ motion to dismiss Marshall’s Section 1998 claim is also denied.
For the aforementioned reasons, the Court GRANTS in part and DENIES in part the Defendants’ Motion to Dismiss. (Filing No. 11.) Marshall’s due process claims, free speech claims, and Section 1983 claim are DISMISSED with prejudice and the claims against all individual Defendants are dismissed from this action. Marshall’s Title IX claim and Section 1988 claim against Indiana University and IUP-UI remain pending.
SO ORDERED.
Notes
. Even if Marshall could proceed on his due process claims, his claim for monetary damages may not proceed for claims arising out of the Indiana Constitution. See McIntire v. Franklin Twp. Cmty. Sch. Corp.,
. Further, Marshall does not explain how a federal Sixth Amendment right would somehow translate into either a federal First Amendment free speech right or a state law free speech right.
. In addition, because Marshall’s state law, free speech claim improperly seeks monetary damages under the Indiana Constitution, that claim would also have to be repleaded for declaratory and injunctive relief alone. See McIntire,
