2016 Record - Emory University School of Law

Emory Civil Rights and Liberties
Moot Court Competition
2016 Appellate Record
Docket No. 16-0007
In the
Supreme Court of the United States
The Salem Institute,
Petitioner
v.
George Weasley,
Respondent
On Writ of Certiorari for the
United States Court of Appeals to the Fourteenth Circuit
Dated June 8, 2016
1 Instructions: 1. Do not cite to any case that was decided after the date in which certiorari was granted in this case (June 8, 2016). 2. Assume, unless otherwise noted in the Record, that all motions, defenses, and appeals were timely filed in accordance with the Federal Rules of Civil Procedure and that both issues may be brought together in the same case. 3. Assume, for the purposes of your brief, that George Weasley has standing to bring his claim before the Court, and that the Salem Institute is an appropriate defendant. 4. Assume that the facts discussed in the “Factual Background” section of the majority opinion are drawn from the record of the lower court, and are thus accurate. 5. Questions or clarifications should be directed to Allie Weiss at [email protected]. 2 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT GEORGE WEASLEY, APPELLANT v. THE SALEM INSTITUTE, APPELLEE Case No. 12-­‐1342 Decided: July 31, 2014 Before: HAGRID, GRANGER, and LONGBOTTOM, Circuit Judges OPINION GRANGER, Circuit Judge George Weasley, a former student of the Salem Institute, appeals the decision of the district court granting summary judgment to the Salem Institute. The case below was decided on cross-­‐motions for summary judgment. In his Complaint, Mr. Weasley seeks relief under 42 U.S.C. § 1983, alleging that the Salem Institute violated his constitutional rights to free speech and procedural due process. The district court ruled on the merits in favor of the Salem Institute. For the following reasons, we AFFIRM IN PART and REVERSE IN PART. FACTS The undisputed facts of the case are as follows. Mr. Weasley enrolled at the Salem Institute as a freshman in 2008. The Salem Institute is a public university located in Dooley City, Emory. Between the college and the law school, the university has a total enrollment of nearly 1,600 students, most of whom are in-­‐state residents. All in-­‐state resident students receive heavily 3 discounted tuition rates. The Salem Institute is the only public university located in the state of Emory, and operates under the supervision of the Emory Board of Regents. Under the powers conferred upon the Board by the Emory Constitution, the Board published the most recent version of the State Board of Regents Policy Manual in 1997 (the “Policy Manual”). Under the powers conferred upon public colleges and universities by the Policy Manual, the Salem Institute published its most recent version of the Student Conduct Manual in 2009. All first-­‐year students of the Salem Institute are given a copy of the Student Conduct Manual during their first week of classes. The Student Conduct Manual is also posted on the university’s website. The relevant portions of the Student Conduct Manual are discussed below. Mr. Weasley began his senior year at the Salem Institute in 2011. As a computer science major, his grade-­‐point average after the fall semester of his senior year was 3.98. He was the vice president of the Salem Institute’s Student Executive Committee, as well as a research assistant in the biology department. He was the co-­‐
founder of a student organization on campus. With these impressive credentials, Mr. Weasley was hired by Nox Services, a prestigious software company in the state of Emory. He was scheduled to begin his employment upon graduating from the Salem Institute, with the caveat that the company could withdraw the offer if his grade-­‐
point average suffered any significant drop or if he was subject to sanctions by the university for misconduct. During his senior year, Mr. Weasley was a resident advisor in Reed Hall, where he supervised 38 residents. Mr. Weasley had been a resident advisor since his sophomore year, advising nearly 40 students per year. Over the course of his three 4 years as a resident advisor, Mr. Weasley filed formal reports against 12 students for charges related to the possession of alcohol or illegal drugs in dormitory rooms. Use of these substances constitutes misconduct under Section 45 of the Salem Institute’s Student Conduct Manual. Of the students that Mr. Weasley reported, all 12 were suspended under the Salem Institute’s “zero-­‐tolerance” policy.1 Mr. Weasley was also active on social media. By the start of his senior year, Mr. Weasley’s Twitter account had garnered approximately 65 followers. Mr. Weasley stated in his deposition that many students at the Salem Institute, including his current and former residents, followed him on Twitter. Mr. Weasley’s Twitter account was “private,” meaning that only those who received Mr. Weasley’s permission could view his postings. During the fall semester of his senior year, Mr. Weasley began posting messages about the well-­‐known politician Gilderoy Lockhart. Mr. Lockhart is a wealthy citizen of the state of Emory who was campaigning for gubernatorial office in 2011. The most controversial element of Mr. Lockhart’s campaign was his promise to ensure that marijuana would be legalized in the state of Emory for both medicinal and recreational uses should he become governor.2 At the end of the fall semester, the Salem Institute closed for winter break. The dormitories were closed for the three-­‐week period between December 17 and 1 The university’s zero-­‐tolerance policy was adopted in 2009. After the university implemented its zero-­‐tolerance policy, it developed a reputation for being one of the strictest substance-­‐free campuses in the country. Each entering class attended a mandatory lecture at which the university’s zero-­‐tolerance policy was explained. Resident advisors did not attend this training, but were encouraged to report students suspected of consuming alcohol or illegal drugs to campus police. 2 Marijuana is not legal for either medicinal or recreational use in Emory. 5 January 9, during which time students left campus. On December 22, 2011, Mr. Weasley attended an off-­‐campus Lockhart rally. The rally did not take place on university property, and the Salem Institute was not involved in the rally in any way. That same day, Mr. Weasley posted a picture on his Twitter account. The picture appears to show Mr. Weasley at the rally, wearing a tee shirt with a large marijuana leaf on the front, accompanied by the text “Light Up for Lockhart.” The photograph included the caption, “Just got #litup at a Lockhart rally. Two joints down, and the country seems pretty great again.”3 In the photograph, Mr. Weasley is wearing a hat with the words “Salem Institute” printed on it. Mr. Weasley’s posting received 48 replies, mostly from Mr. Weasley’s fellow students. Replies included such comments as, “What a hypocrite!”, “Zero-­‐tolerance my a—“ and “Who else wants to make sure this guy gets a taste of his own medicine?” On January 10, 2012, students arrived on campus for the start of the spring semester. Several things happened over the course of that day. First, five of Mr. Weasley’s residents worked together to create a banner which read “Welcome to Weed Hall.” They hung this banner on the outside of the Reed Hall building, in plain view of the main road. At least 20 parents saw the sign when they were dropping off their children and called Argus Filch, the Dean of Students, to express their concern. Second, a group of 30 students arrived at Mr. Filch’s office to report Mr. Weasley’s posting. These students had apparently agreed over winter break that they would congregate in Mr. Filch’s office until he agreed to suspend or expel Mr. 3 Gilderoy Lockhart rallies were known for the large number of attendees who would consume marijuana during the event. As a result, the hashtag “#litup” came to signify in popular culture that someone had consumed marijuana, ostensibly as a showing of support for the Lockhart campaign. 6 Weasley. Mr. Filch, who had been guest lecturing in front of a class of 90 undergraduate students, was forced to release the class an hour early so that he could attend to the group of students gathered outside of his office. Several students in the group were residents on Mr. Weasley’s hall at the time. These students told Mr. Filch that they no longer felt safe living in Reed Hall, given the idea that marijuana would be tolerated in the building after other residents had branded the building “Weed Hall”. These students requested an immediate transfer to another hall. However, because none of the students had printed a copy of the picture to show Mr. Filch, Mr. Filch told them that he could not call a meeting of the Campus Judicial Committee (“CJC”) until he was able to investigate. Mr. Filch then asked one student to bring him a printout of Mr. Weasley’s posting. Once Mr. Filch promised that he would immediately investigate the matter, the students left his office and returned to their regularly scheduled activities. The whole incident lasted approximately 30 minutes. A student later brought Mr. Filch a printout of the image that Mr. Weasley had posted. Mr. Filch determined that the image showed Mr. Weasley at an off-­‐
campus rally, wearing a tee-­‐shirt that included marijuana references and a hat that said “Salem Institute.” He also determined that the image’s caption suggested that Mr. Weasley had recently consumed illegal drugs. Determining that this sort of posting from a student leader reflected badly on the university, Mr. Filch formally charged Mr. Weasley with violating Section 45 of the Student Conduct Manual. Section 45 reads in part: 7 The Salem Institute is a drug-­‐ and alcohol-­‐free campus ... A student found to be in possession or under the influence of any illegal drugs and/or alcohol or mood-­‐enhancing substances while on school property will be found to have committed an act of misconduct. Any student who engages in an act of misconduct under this Section, or who engages in behavior that reflects badly on the university, shall be subject to disciplinary sanctions. (Emphasis added). Mr. Weasley received notice of these charges via e-­‐mail at one o’clock in the afternoon. The notice informed Mr. Weasley that he had been charged with violating Section 45 of the Student Conduct Manual, and that he was required to attend a disciplinary hearing before the CJC at seven o’clock on the evening of January 12, 2012. He was further instructed that he would be allowed to give a formal statement to the CJC in response to the charges laid against him, and that he was not permitted to bring anyone with him to the hearing. The notice also informed him that Dirk Cresswell, a third-­‐year law student, was the Student Advocate assigned to the case. Finally, the notice included the names of the three student justices that would sit on the CJC hearing panel. None of the students on the hearing panel had ever been residents on Mr. Weasley’s hall, nor had they been part of the group of students who had leveled accusations against Mr. Weasley in Mr. Filch’s office. After he received this notice, Mr. Weasley became concerned that he might implicate himself in a crime if he were to speak about the events surrounding his posting the photo. Mr. Weasley sent an e-­‐mail to Mr. Filch and asked whether he was allowed to bring an attorney with him to the hearing. He stated that he would like to have his attorney deliver an opening statement on his behalf, and counsel him 8 during the questioning portion of the hearing. Mr. Filch responded that participation by legal counsel was not allowed at student disciplinary hearings. The hearing took place in the Hedwig Conference Room at seven o’clock in the evening on January 12, 2012. Mr. Weasley appeared before the CJC and requested that the hearing be postponed until he could consult with an attorney. He requested the right to bring his attorney with him to a postponed hearing, to have his attorney present his opening statement on his behalf, and to consult with his attorney during the course of questioning by the hearing panel. All of these requests were denied. Mr. Weasley then stated that he felt uncomfortable proceeding without an attorney present. Mr. Weasley was told that he would not be forced to give a statement, and that if he chose not to answer the CJC’s questions, that the CJC would decide the case based on the evidence presented by the Student Advocate. Mr. Weasley decided not to make a statement or respond to questions. Mr. Weasley was permitted to remain in the room while Mr. Cresswell presented the university’s case. Mr. Cresswell presented the photograph to the CJC, explained when and where it appeared to have been taken, and argued that Mr. Weasley’s actions had reflected badly on the university in violation of Section 45. At the conclusion of the hearing, the CJC again asked Mr. Weasley if he would like to make a statement. Mr. Weasley declined. Mr. Weasley did not ask for a record of the hearing, and no record was made. The CJC subsequently found that Mr. Weasley had violated Section 45 of the Student Conduct Manual. In light of this finding, the CJC recommended that Mr. 9 Weasley be suspended from the university for the remainder of the spring term.4 Furthermore, the CJC recommended that Mr. Weasley should not be allowed to be a resident advisor or live on-­‐campus after his suspension. Mr. Filch adopted the CJC’s recommendations in full, and effectuated Mr. Weasley’s sanctions as of January 15, 2012. Mr. Weasley subsequently filed an application for the Board of Regents to review his case, but the Board declined to review his case. When Mr. Weasley reported his sanctions to Nox Services, the software company that had hired him for post-­‐graduation employment, the company revoked his offer. Mr. Weasley moved into his parents’ house for the remainder of spring term. No criminal charges were ever filed against Mr. Weasley. On February 22, 2012, Mr. Weasley filed suit against the Salem Institute in the District Court for the District of Emory under 42 U.S.C. § 1983. In his complaint, Mr. Weasley asserted that his First Amendment rights had been violated when the Salem Institute disciplined him for speech that he engaged in while not on campus, and that his Fourteenth Amendment procedural due process rights had been violated because Section 45 did not provide him adequate notice that he could be disciplined for posting the photograph, and because he had been denied counsel at his disciplinary hearing. Mr. Weasley sought injunctive relief for the alleged harm to his constitutional rights, such that the Salem Institute would be enjoined to remove all reference to the misconduct from his disciplinary record. After the discovery stage of the district court proceedings had concluded, the Salem Institute moved for summary judgment, asserting that it had not violated Mr. 4 The spring term ended on May 11, 2012. 10 Weasley’s First Amendment rights, and that it had afforded Mr. Weasley sufficient procedural protections in the course of the disciplinary proceedings. Mr. Weasley filed a cross-­‐motion for summary judgment, asserting that he had a First Amendment right to express himself off-­‐campus without being subjected to discipline and that the process that he was afforded was inadequate. The District Court entered summary judgment in favor of the Salem Institute on both counts and denied summary judgment to Mr. Weasley. Mr. Weasley timely appealed. On review of the record given to us by the court below, we now reverse the District Court’s grant of summary judgment on the issue of whether the Salem Institute violated Mr. Weasley’s First Amendment rights. We affirm the District Court’s grant of summary judgment on the issue of whether the Salem Institute violated Mr. Weasley’s right to procedural due process. DISCUSSION I. First Amendment Violation We first turn to the question of whether the Salem Institute’s actions amounted to a violation of Mr. Weasley’s First Amendment rights. If any phrase has become cliché in American jurisprudence, it may well be that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). However, given the unique needs of the school environment, the Supreme Court has stated that school administrators may regulate on-­‐campus student speech that substantially disrupts the work and discipline of the school. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). Therefore, according to 11 what has become known as the Tinker standard, administrators may regulate on-­‐
campus speech to the extent that it creates or would foreseeably create a substantial disruption within the school. Tinker, 393 at 513. There has been some debate about whether Tinker should apply at the college level. However, a public university’s need for order is as vital as that of any other public school, and we begin with the presumption that Tinker applies on a college campus. See Alabama Student Party v. Student Government Ass’n of the University of Alabama, 867 F.2d 1344 (11th Cir. 1989)(applying Tinker in the university setting); Murakowski v. University of Delaware, 575 F. Supp. 2d 571 (D. Del. 2008) (holding that, under Tinker, “a university has the right to exclude First Amendment activities that...substantially interfere with the opportunity for other students to obtain an education”). The extent to which a public institution may regulate a student’s off-­‐campus speech has not been addressed by the court above, and is one of first impression before this court. At the outset, we make note of the fact that circuits have diverged in their answers to this question. Some circuits have held that Tinker applies to off-­‐
campus speech outright, such that an administrator may discipline a student for speech made off-­‐campus so long as the administrator can reasonably predict that the speech will cause substantial disruption on campus. See Boucher v. School Bd. of School Dist. of Greenfield, 134 F.3d 821 (7th Cir. 1998); D.J.M. ex rel. D.M. v. Hannibal Public School Dist. No. 60, 647 F.3d 754 (8th Cir. 2011); LaVine v. Blaine School Dist., 257 F.3d 981 (9th Cir. 2001). 12 Other circuits have found that administrators may only apply the Tinker standard so long as the speech first satisfies some sort of threshold requirement. See Thomas v. Board of Ed., Granville Central School Dist., 607 F.2d 1043 (2nd Cir. 1979)(finding that Tinker was not applicable where the students had “deliberately designed [the speech] to take place outside the schoolhouse gate”); Layshock ex rel. Layshock, 650 F.3d 205 (3rd Cir. 2011) (adopting the Second Circuit’s reasoning in Thomas); Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011)(finding that Tinker applies to off-­‐campus speech if the student could have reasonably anticipated that it would reach the school and that its effects would be felt on campus); Porter v. Ascension Parish School Bd., 393 F.3d 608 (5th Cir. 2004) (finding that Tinker applies to off-­‐campus speech if the student intentionally [directed the speech] at the school community). It appears to this court that circuits applying Tinker outright to off-­‐campus speech ignore the intention behind the Supreme Court’s opinion. The Court in Tinker took great care to ensure that students’ First Amendment rights were protected, regardless of the controversy that a student’s speech may cause. We therefore reject the approach used by these circuits, and adopt a threshold requirement. Specifically, we adopt the requirement used by the Fifth Circuit. See Porter, 393 F.3d at 618-­‐21. In Porter, where a student composed a drawing of his school being attacked and stored the drawing at his home for two years, and the drawing was later brought to campus by his younger brother, the court found that the speech was protected by the First Amendment. Id. at 620. The court held that Tinker only applies if a student intentionally "directed [his speech] at the campus." Id. Because 13 the student had composed his drawing off-­‐campus, shown the drawing only to members of his own household, stored his drawing at his home, and not intended for the drawing to end up on campus, the court found that the speech was not directed at the school. Id. Therefore, the discipline that the school imposed upon the student for creating the drawing was unconstitutional. Id. This opinion found support in Judge Smith’s concurring opinion in Snyder. See J.S. ex rel. Snyder v. Blue Mountain School Dist., 650 F.3d 915, 936 (3rd Cir. 2011). Judge Smith noted that the boundary between on-­‐campus speech and off-­‐campus speech was significantly blurred by the advent of the internet. Snyder, 650 F.3d at 940. For example, where a student sends an e-­‐mail to her school principal from her home computer, it is difficult to discern whether that speech occurred on-­‐campus or off-­‐campus. Id. Judge Smith noted that “the answer plainly cannot turn solely on where the speaker was sitting when the speech was originally uttered.” Id. Rather, the important inquiry is whether the student intentionally directed her speech towards the school. Id. If she did so, then her speech might properly be considered on-­‐campus speech. Id. In such a case, Tinker would apply. We find Judge Smith’s reasoning in Snyder compelling. Therefore, we now ask whether Mr. Weasley intentionally directed his speech toward the Salem Institute. In Snyder, a student had not directed her speech at her school where she created a MySpace profile from her home computer on a weekend evening, where she had no reason to know that the speech would make its way onto campus, and where she took steps to limit the number of people who could access her profile. Id. These facts are comparable to the present case. Mr. Weasley posted the offending image from 14 his personal cell phone. He did so over winter break, when the school was closed and no students were on campus. Finally, Mr. Weasley’s Twitter profile was private, and the only people who could actually view the image were those to whom he had given permission. These facts are sufficient to demonstrate that Mr. Weasley did not intentionally direct his speech toward campus, and therefore his speech does not satisfy the threshold requirement. We need not reach the issue of whether Mr. Weasley’s behavior caused a substantial disruption on campus, because Tinker does not apply to this case. For these reasons, we find that the Salem Institute has violated Mr. Weasley’s First Amendment right to free speech. II. Procedural Due Process Next, we determine whether the Salem Institute violated Mr. Weasley’s right to Due Process. In essence, we ask whether, despite the fact that the Salem Institute did not have the authority to discipline Mr. Weasley for his speech, it afforded Mr. Weasley adequate procedural protections during the disciplinary process. The landmark case in the field of student due process is Goss v. Lopez, in which the Supreme Court held that once a public school extends the benefit of an education to an individual, it may not thereafter withdraw that benefit without affording the individual fundamentally fair procedure. Goss v. Lopez, 419 U.S. 565 (1975). Once this benefit is extended, a student develops a property interest in his or her education, and a liberty interest in maintaining good standing in the eyes of his or her peers, teachers, and potential employers. Id. at 574-­‐575. A school may not deprive the student of his or her property and liberty interests without affording the 15 student due process under the Fourteenth Amendment. Id. See also Jaksa v. Regents of University of Michigan, 597 F. Supp. 1245 (E.D. Mich. 1984) (holding that university students have a liberty interest and/or a property interest in their education that entitles them to due process). After it is determined that due process applies, the court must assess what process is due. Goss, 419 U.S. at 577 (citing Morrisey v. Brewer, 408 U.S. 471, 481 (1972)). The Goss court pointed out that in answering this question, a court should be mindful that judicial interference in the operation of the public school systems requires care and restraint and that public education should usually be left in the hands of state and local authorities. Id. at 578 (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)). Courts have traditionally applied the Mathews factors in determining whether the process afforded a student was sufficient to satisfy the Fourteenth Amendment. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). These factors include: (1) the interest of the student that will be affected by the discipline; (2) the risk that the student’s interest could have been erroneously deprived given the procedures used by the school, and the value that would have been added if the school had used additional procedures; and (3) the burden to the school of requiring that additional procedures be put in place. Id. Mr. Weasley contends that his Fourteenth Amendment rights were violated because the Salem Institute did not allow him to be represented by an attorney at his disciplinary hearing, and because the policy under which he was disciplined was 16 unacceptably vague. We turn now to an analysis of whether the procedures used were deficient under the Mathews factors. A.
Right to an Attorney Mr. Weasley claims that he should have been afforded the opportunity to consult with an attorney during his hearing, and to have his attorney present his opening statement. Having established that the first factor of the Mathews test is satisfied, in that Mr. Weasley has property and liberty rights at stake, we turn to the second factor. The question becomes whether refusing to allow Mr. Weasley to be represented by counsel at his disciplinary hearing was likely to result in the erroneous deprivation of his rights. Alternatively, we ask whether allowing Mr. Weasley to be represented by counsel during the hearing would have decreased the likelihood that an erroneous deprivation would occur. The Goss court specifically stated that a school need not permit attendance by counsel at a student misconduct hearing. Goss, 419 U.S. at 572. The right to counsel is not generally available to students facing disciplinary charges. Henson v. Honor Committee of U. Va., 719 F.2d 69 (4th Cir. 1983). This is because “a school disciplinary proceeding is not a criminal trial, nor is a student…. entitled to all the procedural safeguards afforded criminal defendants.” Jaksa, 597 F. Supp. at 1250. In fact, the only situations in which many courts will even consider finding that a college student has a right to counsel is where criminal charges are pending against the student for the act giving rise to the misconduct hearing, or where the 17 university proceeds through counsel. See e.g., Gabrilowitz v. Newman, 582 F.2d 100 (1st Cir. 1978); French v. Bashful, 303 F. Supp. 1333. There were never any criminal charges pending against Mr. Weasley. Where criminal charges are pending against a student, the risk of erroneous deprivation of the student’s interest at a school hearing is high, because the student is forced to choose between protecting his or her interest in education and protecting his or her rights at future criminal proceedings. The student may therefore choose not to speak in his or her own defense at the school hearing, in which case the school would be unable to consider all relevant evidence when making its determination. On the other hand, where criminal charges are not pending against a student, there is no reason that the student should be afraid to speak in his or her own defense. In such cases, if a student chooses to remain silent at the school hearing, an erroneous finding by the school would not be due to procedural deficiencies, but rather to the student’s poor decisions. Furthermore, where the university does not proceed through an attorney, and the proceedings are not unduly complex, a student does not have the right to be represented by counsel at a disciplinary hearing. Nguyen v. University of Louisville, 2006 WL 1005152, 6 (W.D. Ky. 2006). In the present case, the Student Conduct Manual describes the Salem Institute’s investigation and hearing procedures in language that is easily understood by a senior in college. No complex rules of evidence apply. Furthermore, Mr. Weasley could—and did—consult with Mr. Filch regarding questions he had about the hearing procedures. It is therefore 18 unlikely that the absence of an attorney resulted in a greater risk of Mr. Weasley’s rights being erroneously harmed. Finally, in considering the third Mathews factor, we find that requiring a school to allow for an attorney at every disciplinary hearing would impose too heavy a burden upon the school. Schools are equipped to educate, not to litigate. Discipline is a necessary component of maintaining order in the educational environment, and courts have recognized the need for flexibility in allowing schools to address misconduct. See e.g., Sypniewski v. Warren Hills Regional Bd. of Educ., 307 F.3d 243, 266 (3rd Cir. 2002). If a school were made to conduct a full-­‐
scale adversarial hearing each time it needed to discipline a student, this would result in significant expenditures and untenable procedural complexity. We do not find the risk of erroneous deprivation of Mr. Weasley’s rights so grave as to justify imposing this burden on his school. B. Vagueness Finally, Mr. Weasley contends that the procedures used by the school were deficient because he was not afforded adequate notice that he could be disciplined for posting the offending image prior to being suspended. Mr. Weasley claims that Section 45 of the Student Conduct Manual is void for vagueness, as students of ordinary intelligence are forced to guess as to what constitutes “behavior that reflects badly on the university.” Again, we find Mr. Weasley’s argument without merit. University codes of conduct are not required to satisfy the “same rigorous standards as criminal statutes.” Soglin v. Kauffman, 418 F.2d 163, 168 (7th Cir. 1969). So long as a college 19 student “can read and…[possesses] some power of comprehension,” a code of conduct will not be considered unconstitutionally vague just because the student chooses not to follow it. Esteban v. Central Missouri State College, 415 F.2d 1077, 1088 (8th Cir. 1969). In the present case, Mr. Weasley was well aware of the school’s stance on illegal drug use. He had enforced Section 45 several times himself, in the course of his duties as a resident advisor. It would not be beyond the power of his comprehension that advocating illegal drug use, even while off-­‐campus, would reflect badly on the university. We find that Section 45 is not unconstitutionally vague and that Mr. Weasley had adequate notice that he could be punished for posting the picture. CONCLUSION We therefore reverse the lower court’s grant of summary judgment to the Salem Institute on the first issue, and affirm the grant of summary judgment on the second issue. We enter summary judgment in favor of Mr. Weasley on the first issue, and we order the Salem Institute to remove any reference to the misconduct at issue in this case from Mr. Weasley’s permanent file. However, despite our finding that the Salem Institute afforded adequate process to Mr. Weasley, we are mindful of the fact that due process is a flexible and evolving concept. Lower courts should be aware that there is no single rule that stretches across the spectrum of student discipline fact patterns. Such a rule would 20 be detrimental to students who have been wrongfully suspended—or worse, expelled. So ordered. HAGRID, Circuit Judge, concurring in part and dissenting in part. I concur in the result of today’s opinion as it relates to Mr. Weasley’s First Amendment rights. However, I disagree with the court that Mr. Weasley’s Fourteenth Amendment rights were not infringed. While I agree with the outcome of the first issue, I would like to elaborate on the topic of substantial disruption, as this is another area in which the case law is unclear. To begin, just because a student’s speech had some effect on campus, this does not mean that it had the substantial effect that is required by Tinker. In J.C. ex rel. R.C. v. Beverley Hills Unified School Dist., the Central District of California noted that The substantial disruption inquiry is highly fact-­‐intensive… One court has held that a substantial disruption requires something more than ‘a mild distraction or curiosity created by the speech’ but need not rise to the level of ‘complete chaos’… Not surprisingly, however, the gulf between those two concepts swallows the vast majority of factual scenarios. J.C. ex rel. R.C. v. Beverley Hills Unified School Dist., 711 F. Supp. 2d 1094, 1111 (C.D. Cal. 2010). Where speech causes discussion on campus outside of the classroom, but no interference with activity inside the classroom, it does not create a substantial disruption. Id. at 1111 (citing Tinker at 514). 21 In the present case, the most serious disruption that occurred as a result of the speech was that a group of 30 students met with Mr. Filch for approximately half an hour to voice their discontent over Mr. Weasley’s message. Meeting with students is hardly out of the ordinary for a school administrator. For example, it would not be out of the ordinary for a student to stop by an administrator’s office for an impromptu discussion. The fact that there were more students did not make for more of a disruption, especially in light of the fact that the whole meeting was over in less than an hour. This was hardly the sit-­‐in that was threatened in Doninger, or the chaos that erupted in the Fraser auditorium. See Doninger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008); Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986). This was a peaceful—if slightly dramatic—assembly of students. Nothing about the meeting strikes me as being substantially disruptive to classroom activities. For this reason, I find that the Tinker standard was not satisfied, and I concur with the court in finding that the Salem Institute violated Mr. Weasley’s First Amendment rights. However, I must dissent from the court’s opinion as it addresses Mr. Weasley’s due process rights. Though the court is correct that Goss does not require a school to allow for a student to be represented by counsel, the court fails to recognize that Goss only sets a minimum standard. The students in Goss were facing a ten-­‐day suspension; in the present case, not only does Mr. Weasley face suspension for a much more significant period of time, but he faces a whole host of misfortunes as a result of that suspension. He was not allowed to graduate with the rest of his class, despite having achieved almost a 4.0 grade-­‐point average over the course of his four years at the Salem Institute. He was not allowed to live on campus 22 for the remainder of his time at the university, which likely resulted in a significant expenditure for room and board off-­‐campus. His job offer was revoked as a result of the discipline. Because of the additional severity of Mr. Weasley’s case as compared to Goss, Mr. Weasley should have been afforded an attorney. Furthermore, the court fails to acknowledge the body of case law that allows students the right to representation at disciplinary hearings. See e.g., Marin v. University of Puerto Rico, 377 F. Supp. 613 (D.P.R. 1973). It is apparent to me that, in situations like the present case where the hearing was adversarial and the university proceeded through its own representative, a student should be allowed to have his attorney participate in his disciplinary hearing. See Jaksa, 597 F. Supp. at 1252. This is especially true where the determination of whether to discipline a student hinges on a complex constitutional issue—namely, whether the school would be violating the student’s First Amendment rights. A student uneducated in the law, like Mr. Weasley, would not be equipped to make such an argument. Significantly, Mr. Weasley did not ask to have his attorney cross-­‐examine any witnesses, which may have resulted in a heavier burden upon the school. Therefore, my conviction does not buckle under the weight of the third Mathews factor. Any burden on the school in the present case would have been mitigated by the fact that Mr. Weasley would have paid for his own counsel, and justified by the serious nature of the sanctions. I also find that the school regulation under which Mr. Weasley was disciplined was unconstitutionally vague. The first essential element of due process is that an individual be given adequate notice that he or she could be subject to 23 losing certain rights. Corp. of Haverford College v. Reeher, 329 F. Supp. 1196, 1201 (E.D. Penn. 1971). A statute or regulation must give the individual reasonable certainty about what sort of conduct would cause him or her to lose his or her rights. Id. Surely, there are few policies more vague than one that prohibits conduct that “reflects badly on [a] university.” The layman, when asked what behaviors this policy encompasses, would likely give a variety of answers, ranging from the plausible to the ridiculous. There is not even the requirement that the conduct that reflects badly on the university cause a substantial disruption on campus before it is brought within the reach of the policy. Where no guidelines are given as to a policy’s reach, the policy must be deemed void for vagueness. See e.g., Shanley v. Northeast Indep. School Dist., Bexar County, Tex., 462 F.2d 960 (5th Cir. 1972). LONGBOTTOM, Circuit Judge, concurring in part and dissenting in part. I respectfully dissent from the court’s finding that Mr. Weasley’s First Amendment rights were violated. I find it likely that, if Tinker were decided today, the Supreme Court would allow for online speech to be regulated if it were likely to cause a substantial disruption within a school. It must be remembered that Tinker was decided before the dawn of the Internet age, when speech was either ephemeral or tangible. If it was not made on campus or brought onto campus, it was incapable of causing a disruption in the classroom. Off-­‐campus speech simply did not pose a threat. 24 Today, speech can be everywhere at once, as is evidenced by the case at bar. The Internet exists in the palms of our hands. We carry it around with us in our pockets. Anything that is posted online is as available in the classroom as it is in house where it was created. The important question is no longer where the speech was created, but rather where it ends up, and what effect it has once there. It was not Tinker’s intention to give students free reign to defy school values under the guise of exercising their First Amendment rights. The Supreme Court was very clear: the First Amendment does not protect any speech, regardless of “time, place, or type of behavior,” that has the effect of substantially disrupting classwork. Id. For this reason, I agree with the courts that have applied Tinker outright, and I find that this court should do the same in cases of online speech. See e.g., Boucher v. School Bd. of School Dist. of Greenfield, 134 F.3d 821 (7th Cir. 1998); D.J.M. ex rel. D.M. v. Hannibal Public School Dist. No. 60, 647 F.3d 754 (8th Cir. 2011); LaVine v. Blaine School Dist., 257 F.3d 981 (9th Cir. 2001). Furthermore, applying Tinker to Mr. Weasley’s case, his speech is precisely the sort that a school must be allowed to regulate. The Supreme Court has been especially sensitive to a school’s need to regulate student speech “that can reasonably be regarded as encouraging illegal drug use.” Morse v. Frederick, 551 U.S. 393, 397 (2007). The Court in Morse demonstrated an acute awareness of the devastating effects that drug abuse has on the health of schoolchildren. Morse v. Frederick, 551 U.S. 393, 407. The 25 Court noted that peer pressure to abuse drugs was “’the single most important factor leading schoolchildren to take drugs’, and that students are more likely to use drugs when the norms in school appear to tolerate such behavior.” Id. at 408. Mr. Weasley was a leader on campus. Other students looked to him to set an example. In posting the picture of himself in a tee-­‐
shirt with a marijuana leaf, encouraging students to “Light Up for Lockhart,” with a caption that suggests that he was consuming or had recently consumed illegal drugs, he was demonstrating tolerance of an activity that the school has expressly opposed. Lastly, it is evident that Mr. Weasley’s posting created a substantial disruption on campus. In determining whether a substantial disruption occurred or was reasonably likely to occur, we look to the totality of the facts. LaVine v. Blaine School Dist., 257 F.3d 981, 989 (9th Cir. 2001). Where speech interferes with a school’s work, it creates a substantial disruption. The facts here are analogous to Doninger, wherein the Second Circuit found a substantial disruption when a student’s speech “diverted [administrators] from their core educational responsibilities.” In the present case, not only was Mr. Filch forced to contend with angry students and concerned parents, but he also found it necessary to cancel his class to attend to the disruption. This resulted in 90 students having their days disrupted due to Mr. Weasley’s speech, not including the 30 students whose days were disrupted when they visited Mr. Filch’s office. This speech created more than a minor inconvenience. This sort of effect is the epitome of Tinker’s “substantial disruption.” 26 EXHIBIT I DEPOSITION OF GEORGE WEASLEY The deposition of George Weasley was taken on April 1, 2012, at 9:00 a.m., at 217 Spinner’s End, Dooley City, Emory. COURT REPORTER: CUTHBERT BINNS FLAGRATE REPORTING CO., INC. 1659 SPINNER’S END, DOOLEY CITY, EMORY 00341 (555) 254-­‐1111 FLAGRATE REPORTING CO., INC. 1659 SPINNER’S END DOOLEY CITY, EMORY 00341 * * * 27 1. (DEPOSITION EXCERPTS OF GEORGE WEASLEY.) 2. Q. Mr. Weasley, you operate an account on Twitter, is that correct? 3. A. Yes. 4. Q. When did you create that account? 5. A. I guess around June, 2011. 6. Q. And why did you create that account? 7. A. Well, I wanted to show my support for Mr. Lockhart. I wanted to talk 8. about the things he says. That’s all I really post on there. Quotes and photos 9. of Lockhart, I mean. 10. Q. Are you aware of who follows your account? 11. A. I’m not sure. I know that most of my followers are students from my 12. school. I’ve heard that a lot of them have complained about the things I post. 13. Lockhart’s kind of a controversial guy. 14. Q. Did you post a photo to your account on December 22, 2011? 15. A. Yes. 16. Q. What did that picture show? 17. A. It showed me, wearing a tee-­‐shirt that said “Light Up for Lockhart.” 18. Q. And did you caption the photo? 19. A. Yes. 20. Q. What did the caption say? 21. A. It said something about being at the Lockhart rally, and smoking a 22. couple of joints. I don’t remember, exactly. 23. Q. Knowing that you had students following the account, what made 28 24. you decide to post that picture? 25. A. 26. when the picture was taken. Someone sent it to me, and I just decided to post 27. it right there from my cell phone. I wasn’t thinking about the students who 28. might see it. But, regardless, my account is private. So it’s not like the whole 29. school saw it. 30. Q. 31. tolerance policy for drugs and alcohol, aren’t you? 32. A. Yes. 33. Q. And as a resident advisor, you’re aware that this policy is 34. something that the university takes very seriously? 35. A. Yes. 36. Q. And you had read Section 45 prior to posting the photo, hadn’t 37. you? 38. A. Yes. 39. Q. So you knew that Section 45, which forbids alcohol and drug use 40. on campus, also forbids conduct that would reflect badly upon the 41. university? 42. A. Yes. 43. Q. Did it cross your mind at any point that, as someone who sits on 44. the Student Executive Board, and who is a resident advisor on campus, 45. your post about consuming illegal drugs might reflect badly on the 46. university? I don’t know. I guess I didn’t really think about it. I was at the rally Mr. Weasley, you are aware that the Salem Institute has a zero-­‐
29 47. A. Look, I had no idea that the school could suspend someone for stuff 48. that happens over break. Plus, I know for a fact that I’m not the only student 49. who has ever posted something about smoking that stuff, and as far as I 50. know, the school never suspended any of those guys. 51. Q. 52. Judicial Committee on January 10? 53. A. 54. more trouble down the road. If I started answering questions, and 55. accidentally said something about having used marijuana in the past, I didn’t 56. know if the cops could use that to file charges against me for possession or 57. something. I just didn’t want to say anything without an attorney. 58. Q. 59. to classes, does it? 60. A. 61. hard time finding someone who will hire me for post-­‐grad work with a 62. suspension on my record. No one wants to hire a troublemaker. Before all of 63. this happened, I had a great job lined up. Now, I’m not sure anyone will want 64. to give me a job. Maybe if I didn’t have this on my record, I could actually get 65. a pretty good position somewhere, even if I do graduate a semester late. If that was your position, why didn’t you tell that to the Campus I was afraid that I was going to say something that might get me into Mr. Weasley, your sanction doesn’t prevent you from returning No, it doesn’t. I’m allowed to start up again in the fall. But I’ve had a George Weasley
Executed this 1st day of April, 2012 30 George Weasley EXHIBIT II DEPOSITION OF ARGUS FILCH The deposition of Argus Filch was taken on April 1, 2012, at 11:00 a.m., at 217 Spinner’s End, Dooley City, Emory. COURT REPORTER: CUTHBERT BINNS FLAGRATE REPORTING CO., INC. 1659 SPINNER’S END, DOOLEY CITY, EMORY 00341 (555) 254-­‐1111 FLAGRATE REPORTING CO., INC. 1659 SPINNER’S END DOOLEY CITY, EMORY 00341 * * * 31 1. (DEPOSITION EXCERPTS OF ARGUS FILCH.) 2. Q. Mr. Filch, what is your job title? 3. A. I am the Dean of Students at the Salem Institute. 4. Q. How long have you held that position? 5. A. About seven years now. 6. Q. Can you describe what happened on January 10, 2012? 7. A. Sure. I was guest lecturing to a class of first-­‐year students. It was a 8. psychology class, and the professor wanted me to share some of my insights 9. into team building strategies. Anyway, my phone started ringing right as 10. class began. It was my assistant. She told me that a large group of students 11. had come to the office demanding to see me. I figured something must be 12. wrong, so I dismissed class and ran over there. 13. Q. And what did you find when you got there? 14. A. There were about 30 students or so, all standing in my office, 15. demanding that I expel George Weasley. They were all very upset. I 16. recognized at least a handful of them as former residents on George’s hall, 17. who had been suspended when they’d gotten caught with alcohol or 18. marijuana. 19. Q. 20. posting from December 22, is that correct? 21. A. 22. because he was a resident advisor. Of course, I explained that he wasn’t 23. above the rules. So I told them that I’d look into it. They wanted to you expel Mr. Weasley because of his Twitter Yes. They thought it was unfair that he should be above the rules, just 32 24. Q. And did you? 25. A. Yes. One of the students mentioned that Mr. Weasley’s account was 26. private, so I asked the student to bring me a print-­‐out of the photograph. 27. Once he did, I saw that the photo showed Mr. Weasley in a shirt that had 28. marijuana references on it. The caption suggested that he had been using 29. drugs just before he took the photo. 30. Q. The photo was taken at an off-­‐campus location? 31. A. I believe that’s correct. 32. Q. The photo wasn’t posted from a school computer? 33. A. Not to my knowledge. 34. Q. Mr. Filch, your school has a drug policy that prohibits on-­‐campus 35. consumption of drugs and alcohol, is that correct? 36. A. Yes. Section 45 prohibits use of those substances. 37. Q. Does any other school policy mention drugs or alcohol? 38. A. No. 39. Q. Have you ever disciplined a student under Section 45 for off-­‐ 40. campus behavior before? 41. A. 42. The policy prohibits students from engaging in any conduct that reflects 43. badly on the university. Mr. Weasley set an atrocious example when he 44. posted that picture. He was essentially telling all of the students who look up 45. to him that he had just used drugs, and that they should, too. 46. Q. Not that I can recall. However, it is clearly within our power to do so. But even if that was his intent, he wasn’t demonstrating 33 47. tolerance of on-­‐campus drug use. Correct? 48. A. 49. substance abuse, as well as peer pressure to abuse substances, no matter 50. where such behavior takes place. That’s one of the reasons a lot of students 51. come to our school, actually. 52. Q. 53. the first sign of drugs or alcohol? 54. A. 55. we had a string of tragedies back in 2008. Three students died in one 56. semester from overdoses. And we weren’t the only school where this was 57. happening. All across the country, you hear about students dying from 58. alcohol poisoning and drug use. After that, we decided to turn things around. 59. That’s when we adopted our zero-­‐tolerance policy. Now, we explain to all of 60. our first-­‐year students during their very first week on campus that 61. consuming these substances, or pressuring students to take these 62. substances, or setting negative examples with regard to substance abuse, are 63. all punishable. But despite all of that, look at what happened within one day 64. of students being back on campus after Mr. Weasley posted that photo. Five 65. of his residents hung a banner joking about illegal drugs. Thirty students 66. thought that the university was relaxing its standards. Can you imagine what 67. might have happened if we hadn’t suspended him? It doesn’t matter. The university is well-­‐known for being averse to Students come to your school because you will suspend them at Students come to our school because we offer a safe environment. See, Executed this 1st day of April, 2012 Argus Filch
34 Argus Filch EXHIBIT III THE SALEM INSTITUTE
STUDENT CONDUCT MANUAL
SECTION 45
(AS REVISED APRIL 3, 2009)
Students are expected to be good citizens and to engage in
responsible behaviors. The Salem Institute is a drug- and alcoholfree campus. Possession, sale, and/or use of any type of illegal
drugs, alcohol, or mood-enhancing substance by any person on any
property owned, leased, or controlled by the Salem Institute is
strictly forbidden. The Salem Institute Department of Public Safety
will enforce all federal, state, and local laws concerning underage
drinking, drug, and mood-enhancing substance violations. A student
found to be in possession or under the influence of any illegal drugs
and/or alcohol or mood-enhancing substances while on school
property will be found to have committed an act of misconduct. Any
student who engages in an act of misconduct under this Section, or
who engages in behavior that reflects badly on the university, shall
be subject to disciplinary sanctions up to and including the
possibility of dismissal. The severity of sanctions or corrective
actions depends on the severity, frequency and/or nature of the
offense, the student’s history of past conduct, the student’s
willingness to accept responsibility, previous institutional response
to similar conduct, and the institution’s interests.
35 EXHIBIT IV NOTICE OF CHARGES
AND UPCOMING DISCIPLINARY HEARING January 10, 2012
Dear Mr. Weasley,
It has recently come to my attention that on December 22, 2011,
you posted a photograph of yourself to your Twitter account. This
photograph showed you wearing a tee-shirt that included a picture of a
marijuana leaf and the phrase “Light Up for Lockhart,” as well as a hat
with the words “Salem Institute.” This photograph included the caption
“Just got #litup at a Lockhart rally. Two joints down, and the country
seems pretty great again.” As you know, the Salem Institute is strictly
opposed to the use and/or possession of any type of illegal drugs or alcohol.
Therefore, you have been charged under Section 45 of the Student Conduct
Manual with engaging in behavior that reflects badly upon the university.
In light of these charges, you have been scheduled to attend a
mandatory disciplinary hearing. Your disciplinary hearing will take place
on January 12, 2012, at seven o’clock p.m. in the Hedwig Conference
Room.
The student justices that will hear your case are Katie Bell (’12),
Hannah Abbott (’13), and Susan Bones (’14). Dirk Cresswell (‘12L) is the
Student Advocate that is assigned to your case. Please note that your
attendance at this hearing is mandatory, and failure to appear will result
in additional disciplinary sanctions.
At this hearing, you will be permitted to give a formal statement in
response to the charges that have been laid against you. You will not be
permitted to bring any outside persons into the hearing room with you.
Please feel free to contact me with any questions you may have
regarding your upcoming hearing. You may also access the Student
Conduct Manual, which includes an outline of the school’s disciplinary
hearing procedures, on the school website.
Sincerely,
Argus Filch
Associate Dean of Students
Head of Residential Life
[email protected]
(555) 555-0142
36 EXHIBIT V NOTICE OF SUSPENSION
January 15, 2012
Dear Mr. Weasley,
This letter is to inform you of the decision reached by the Campus
Judicial Committee (“CJC”) at the conclusion of your disciplinary hearing.
Upon review of the evidence, the CJC found that you violated Section
45 of the Student Conduct Manual, which forbids students from engaging
in drug- or alcohol-related misconduct or behavior that reflects badly upon
the university. Based on this finding, the CJC has recommended that you
should be suspended for the remainder of the current term. I have adopted
this recommendation, and your suspension is effective as of your receipt of
this letter. This suspension will preclude you from graduating with the
class of 2012, as you will not be able to complete the number of credit
hours that is required for a student to graduate from this university. You
may resume classes next term, and, if you are able to complete the
required number of credit hours, you may graduate at the end of the fall
semester.
Furthermore, the CJC recommended that, if you choose to return to
the Salem Institute once your suspension has ended, you should not be
permitted to live on campus or work as a Resident Advisor. I have adopted
this recommendation as well.
This decision is final and effective immediately. Under the
Investigation and Hearing Procedures section of the Student Conduct
Manual, you may submit an application to have your case reviewed by the
Board of Regents within 20 calendar days.
Sincerely,
Argus Filch
Associate Dean of Students
Head of Residential Life
[email protected]
(555) 555-0142
37 EXHIBIT VI George&Weasley&
712$Burrow$Drive,$Ottery$St$Catchpole,$Emory$00213$
(555)$723@0837$!|[email protected]$
!
EDUCATION&
The&Salem&Institute& &&&
&
Bachelor!of!Science!Candidate!
Computer!Science!
Current!GPA:!3.98!
&
&&&
&&&&&&&&& &
&&
&
&&&&&May&2012&
!
EXPERIENCE!
Resident!Advisor,!The&Salem&Institute&& &
&
&
&&
&
&&&2009D2012&
Responsible!for!advising!approximately!40!students!each!year.!Trained!in!CPR,!
bystander!intervention,!peer!counseling,!and!crisis!management.!Responsible!for!
enforcing!university!regulations.!!
!
Vice!President,!The&Salem&Institute&Student&Executive&Committee&&&&&&&&&2011D2012&
Elected!by!the!Salem!Institute!Class!of!2012.!Worked!closely!with!the!Student!
Executive!Committee!President!to!oversee!the!distribution!of!student!organization!
funds!to!various!student!groups,!plan!campus!events,!and!facilitate!communication!
between!students!and!the!administration.!!
!
Youth!Literacy!Tutor,!Hogwarts&Elementary&School&&&&&&&&& &
&&
&&&2008D2011&
Tutored!firstO!and!secondOgrade!students!who!struggle!with!literacy!and!reading!
comprehension.!Responsible!for!planning!lessons,!organizing!educational!activities,!
and!helping!with!homework.!!
!
Research!Assistant,!The&Salem&Institute&Biology&Department& &
&&&2009D2011&
Hired!by!Professor!Pomona!Sprout.!Assisted!Professor!Sprout!in!her!research!on!the!
effects!of!various!plant!extracts!on!cognitive,!circulatory,!and!autoimmune!disorders.!
Performed!several!studies!and!analyzed!results.!!
!
Co:Founder,!LUMOS&Student&Organization& &
&
&
&&
&&&2010D2011&
CoOfounded!the!LUMOS!organization,!which!is!a!studentOrun!organization!dedicated!
to!developing!new!uses!for!lightOemitting!diodes!(LEDs).!Together!with!several!other!
students,!designed!a!series!of!lava!lamps!made!from!LED!bulbs!and!recycled!
materials.!!
!
MISCELLANEOUS&
•
•
•
First!member!of!my!family!to!attend!college!
Hobbies!include!traveling,!cooking,!and!attending!Gryffindor!baseball!games.!
Favorite!films!include!Fantastic$Beasts$and$Where$to$Find$them!and!Up$in$Smoke!
38 EXHIBIT VII 39 EXHIBIT VIII THE SALEM INSTITUTE
STUDENT CONDUCT MANUAL
INVESTIGATION AND HEARING
PROCEDURES
(AS REVISED APRIL 3, 2009)
1. Investigation
If there is reason to believe that a student has committed misconduct as
defined in the Student Conduct Manual, the Dean of Students may conduct
a prompt, fair, and impartial investigation. Based on the initial
investigation, if the Dean of Students determines that there is a sufficient
basis to believe that a violation of the Student Conduct Manual may have
occurred, then the Dean of Students will initiate charges regarding the
alleged violation.
When the potential sanctions for the alleged misconduct may involve a
suspension or expulsion from the university, the following student
conduct investigation and hearing process will occur:
a. The student shall be provided with a written notice of the
charges that have been laid against him or her. The notice will
specify allegations of misconduct in sufficient detail to enable
the student to respond. The notice will be sent to the student’s
university email address.
b. The written notice will be provided to the members of the
Campus Judicial Committee assigned to the case for their
consideration in adjudicating the charges.
c. The student will be required to attend a conduct hearing before
the Campus Judicial Committee within five (5) business days of
receipt of the written notice. Though the student may not bring
any outside counsel into the hearing room, the student is
permitted to consult with an attorney prior to and after the
hearing.
40 2. Composition of Hearing Panels
The Campus Judicial Committee is a body of students elected by their
peers to serve as student justices at misconduct hearings. A student is not
eligible to be a member of the Campus Judicial Committee if he or she has
ever been found to have committed any act of misconduct. Students that
are elected to the Campus Judicial Committee will serve as student justices
for the entire school year. The University will provide annual training for
members of the Campus Judicial Committee.
Campus Judicial Committee hearings will be conducted by a hearing panel
composed of three student justices (the “Hearing Panel”). Student justices
are responsible for determining, by a majority vote, whether a student is
in violation of the Student Conduct Manual based on the presentation of
evidence and witnesses. If the student is found in violation of the Student
Conduct Manual, the Hearing Panel will determine and recommend
sanctions appropriate for the violation to the Dean of Students. The Dean
of Students may then adopt or reject the Campus Judicial Committee’s
recommendation.
3. Student Advocates
Student Advocates represent the university’s interests at a Campus
Judicial Committee hearing. The Student Advocate presents information to
the Hearing Panel to demonstrate why it is believed that the student
violated the Student Conduct Manual based on the preponderance of the
evidence. The Student Advocate contacts potential witnesses, presents
documentary evidence, and questions witnesses during the formal
hearing.
4. Hearing Procedures
A hearing before the Campus Judicial Committee will proceed as follows:
a. The student will be permitted to deliver an opening statement.
b. The Student Advocate will present information that supports the
charges against the student.
c. The student will be permitted to present information on his/her own
behalf that supports the denial of responsibility for the alleged Student
Conduct Manual violations.
d. All information, including hearsay, may be considered by the Hearing
Panel, however the Hearing Panel may exclude information during the
hearing if it is not reasonably linked to the charges.
e. A record shall be made of the hearing at the student’s request. A copy
of the record shall be made available to the student upon payment of
associated costs.
f. Upon the conclusion of the hearing, the Hearing Panel will adjourn to
review the information. The Hearing Panel will determine whether it is
41 more likely than not that the student is responsible for having violated
the Student Conduct Manual. If a majority of the Hearing Panel
determines that the student is responsible for violating the Student
Conduct Manual, the Hearing Panel will determine what sanctions are
appropriate, if any.
g. After deliberating, the Hearing Panel shall make a non-binding
recommendation to the Dean of Students within five (5) Business Days
of the hearing regarding the responsibility for the violation(s) and
appropriate sanction(s).
h. The Dean of Students shall make the final decision as to whether it is
more likely than not that a violation of the Student Conduct Manual
occurred and, if so, the appropriate disciplinary sanction(s) to apply,
within five (5) Business Days of receiving the Hearing Panel’s
recommendation.
i. The Dean of Students will inform the student of the decision in writing.
The written decision will include a statement of the violations that the
student is found to have committed, and the sanctions to be imposed.
5. Appeal
To appeal to the Board of Regents, the student may submit an application
for review within 20 calendar days of the date of the Dean’s decision. The
application shall state the decision complained of and the redress desired.
A hearing before the Board is not a matter of right but is within the sound
discretion of the Board. If the application for review is granted, the Board
will, except for in extenuating circumstances, investigate the matter
thoroughly and render its decision thereon within 60 calendar days of the
hearing. The student will be notified in writing of the Board’s decision.
The decision of the Board shall be final and binding. If the Board issues a
final decision, or declines to grant a student’s application for review, then
the university system administrative appeals process has been exhausted.
42 Docket No. 16-0007
In the
Supreme Court of the United States
The Salem Institute,
Petitioner
v.
George Weasley,
Respondent
On Writ of Certiorari for the
United States Court of Appeals to the Fourteenth Circuit
Petition for writ of certiorari to the Supreme Court of the United States is granted,
limited to the following questions:
1. Did the Salem Institute violate Mr. Weasley’s First Amendment rights
when it suspended him for posting the photo from December 22, 2011, to
his Twitter account?
2. Did the Salem Institute violate Mr. Weasley’s right to due process under
the Fourteenth Amendment when it refused to allow him to be represented
by counsel at the disciplinary hearing, or when it suspended him under
Section 45 of the Student Conduct Manual?
43