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F.I.R.E files amicus brief; re:college administrators violating student's civil rights
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Topic Started: Apr 12 2011, 11:58 AM (410 Views)
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Texas Mom
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Apr 12 2011, 11:58 AM
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http://thefire.org/article/13066.html
Joined by Broad Coalition, FIRE Files Brief in Support of Student Rights in 'Barnes v. Zaccari'April 12, 2011
ATLANTA, April 12, 2011—On behalf of a broad coalition of 15 organizations concerned about student rights on public campuses, the Foundation for Individual Rights in Education (FIRE) filed an amici curiae brief yesterday with the United States Court of Appeals for the Eleventh Circuit in the case of Barnes v. Zaccari. The brief asks the Eleventh Circuit to uphold a federal district court's September 2010 ruling denying the defense of qualified immunity to former Valdosta State University (VSU) President Ronald M. Zaccari, arguing that public college administrators who violate the constitutional rights of students should be held liable for doing so.
The brief, authored by FIRE, was jointly submitted to the Eleventh Circuit by FIRE, the American Booksellers Foundation for Free Expression, the American Civil Liberties Union of Georgia, the American Council of Trustees and Alumni, the Cato Institute, the Electronic Frontier Foundation, Feminists for Free Expression, the Individual Rights Foundation, the Libertarian Law Council, the National Association of Scholars, the National Coalition Against Censorship, the National Youth Rights Association, Reason Foundation, the Southeastern Legal Foundation, and Students For Liberty.
"For too long, public college administrators have been able to ignore the Constitution and treat state institutions like personal fiefdoms," FIRE President Greg Lukianoff said. "It's time for this consequence-free abuse of adult students' constitutional rights to end."
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Jack Wade
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Apr 12 2011, 12:07 PM
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1). This doesn't affect Duke because Duke is a private university, not a public university.
2). The case in question concerns a disciplinary action. Beaty said student disciplinary actions are the exception to the general rule for the Middle District that student manuals, etc, aren't contracts.
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Quasimodo
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Apr 12 2011, 02:18 PM
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Some interesting (if maybe tangential) points from the Judge's Sept. 2010 opinion:
- Quote:
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http://thefire.org/public/pdfs/67f9ff1cfbb361b7a2b4151e3241930c.pdf?direct
Barnes v. Zaccari
a. Procedural Due Process Rights of College Students
In the court’s November 19, 2008, order ruling on the defendants’ motions to dismiss, the court held that the case law in the Eleventh Circuit “clearly recognize(s) the existence of some . . . procedural due process rights for college students when facing disciplinary action” [Doc. No. 37, p. 23].
Furthermore, all of the cases cited in the VSU Defendants’ briefs, which were binding on this court and involved the removal or withdrawal of a college student, support the same conclusion -- that a college student is entitled to notice and some sort of hearing prior to
Dixon v. Alabama State Board of Education, 294 F.2d 150, 158 (5th Cir. 1961)(holding that due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct);
(snip)
(N.D. Ga. 2009)(holding that procedural due process requires a notice and an opportunity to be heard); see also Goss v. Lopez, 419 U.S. 565, 579 (1975)(holding that, at the very minimum, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing);
pp.29-30
(snip)
In her brief in support of her motion for summary judgment as to Counts 3 and 4, Gaskins argues that she did not participate in the decision to administratively withdraw Barnes, other than to repeatedly and consistently offer her legal counsel that Barnes’s due process rights had to be respected in any withdrawal procedure.
[Compare with Waziolek]
Additionally, Gaskins points out that she had no authority to withdraw any student and was never asked for her opinion or advice about whether Barnes should be withdrawn. In sum, Gaskins maintains that her role in this entire matter was limited to offering legal advice about the due process and equal protection concerns raised by any student withdrawal, and the decision of whether to accept that advice or reject it was Zaccari’s alone.
Therefore, Gaskins argues that she is entitled to judgment as a matter of law.
In response, Barnes argues that Gaskins knew that actions taken against him regarding the withdrawal were wrong, and through her acts and omissions, Gaskins shares responsibility for the deprivation of Barnes’s rights. According to Barnes, Gaskins is liable despite her warnings because she assisted in implementing the withdraw decision. Barnes maintains that (a) Gaskins is precluded from immunity where, as here, she knowingly participated in a course of action that violated Barnes’s rights, and (b) Gaskins failed to adhere to her legal obligations to bring the Barnes matter to the attention of higher authority. Accordingly, Barnes contends the court should deny Gaskins’s motion for summary judgment.
pp. 33-34
(snip)
With regard to Gaskins, neither the undisputed facts nor any other evidence supports the conclusory allegation that she made an agreement with anyone to violate Barnes’s constitutional rights. To the contrary, the undisputed facts and evidence in this case show that Gaskins opposed the withdrawal of Barnes, and, whenever given the opportunity, she alerted anyone who would listen of the legal ramifications of taking such action. In fact, even after Zaccari announced his decision to withdraw Barnes and directed Gaskins to draft a memorandum that would serve as a withdrawal notice, Gaskins drafted the memorandum which included the pointed reminder and warning,
Please find the below proposed letter. You should note that due process dictates that the student be apprised of what particular policy has been violated, an opportunity to be heard and also informed of the appeal process. My research has led me to the following policies that appear to be implicated. I have attached the same for your review and consideration. Valdosta State Student Code of Conduct E.(7) Disorderly Conduct Mental Health Withdrawal
p.36
[Did Wasiolek or Duke's in-house counsel ever draft any memoranda about the legal issues involved in the Duke case?]
The VSU Defendants contend that VSU should be dismissed from this action because the university is not a properly named party. The court agrees. Under Federal Rule of Civil Procedure 17, the capacity to be sued is determined by state law. Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992). Under Georgia law, “the government, control, and management of the University System of Georgia and all of the institutions in said system shall be vested in the Board of Regents of the University System of Georgia.” Ga. Const. Art 8, § 4 ¶ I(b). As a result, the Board of Regents is the proper party to sue under state law, not VSU.
p.46
Georgia Courts have not specifically determined whether a student handbook issued at one of Georgia’s public state universities and colleges constituted a valid, written contract. However, the Georgia Court of Appeals has held that private universities in Georgia formed contracts with their students via the student handbook issued during the student’s enrollment.
Morehouse College, Inc. v. McGaha, 627 S.E.2d 39, 42 (Ga. Ct. App. 2005)(recognizing the breach of contract was Morehouse's failure to abide by the hearing procedures in its student handbook); Kuritzky v. Emory University, 669 S.E.2d 179 (Ga. Ct. App. 2008)(recognizing an expelled student’s right to bring a breach of contract action against a private educational institution for failure to abide by the hearing procedures set forth in the student handbook);
(snip)
Furthermore, the court notes that there was nothing in the VSU Student Handbook disclaiming that the document established a contract between the student and the university. See Carr v. Board of Regents of University System of Georgia, 249 Fed.Appx. 146, 150
pp.48-49
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Quasimodo
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Apr 12 2011, 02:26 PM
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Amicus brief:
- Quote:
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http://thefire.org/public/pdfs/ac3752887e895a4982de7078beb9a19a.pdf?direct
SUMMARY OF ARGUMENT
(snip)
Barnes’ case is a shocking example of the unconstitutional abuses marring our public institutions of higher education. Because Barnes exercised his First Amendment rights by peacefully protesting the planned construction of a parking facility, he was targeted for expulsion by former Valdosta State University President Ronald Zaccari.
(snip)
Possessing clear knowledge of the constitutional rights to which Barnes was entitled, Zaccari nevertheless ignored longstanding legal precedent, the Valdosta State University Student Handbook, and the counsel of his fellow administrators.
[How did Duke administrators and lawyers counsel Brodhead?]
While Zaccari had been notified that expelling Barnes without notice of the charges against him or any form of hearing would violate Barnes’ due process rights, he chose to do so regardless.
(snip)
College administrators nationwide are watching this case closely.
[Are they watching the Duke case closely also? If so, they have just been told that they can go ahead--at least in the Fourth Circuit--and lie to students and tell them not to get attorneys--and that they are immune for such conduct.]
(snip)
Given the egregious nature of the rights violations at issue here, granting Zaccari qualified immunity will have a profound effect on college administrators’ sense of obligation to safeguard students’ constitutional rights. If students like Hayden Barnes are unable to vindicate their rights after suffering abuses like those before the court, would-be censors across the country will be free to flout constitutional obligations with impunity. If this result is permitted, both our public system of higher education and society at large will suffer.
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Quasimodo
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Apr 12 2011, 02:31 PM
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More from the Amicus brief:
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The Supreme Court has made clear that the “vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487; 81 S. Ct. 247, 251 (1960). Indeed, in Sweezy v. New Hampshire, 354 U.S. 234; 77 S. Ct. 1203 (1957), the Court identified a direct correlation between robust constitutional liberties on public campuses and the health of our nation’s liberal democracy:
The essentiality of freedom in the community of American universities is almost self-evident…. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
Id. at 250. Among the most crucial constitutional freedoms enjoyed by students are the right to freedom of expression and the right to due process of law.
Courts have long identified the necessity of affording students attending public schools the basic components of due process of law. Indeed, this court was one of the first to recognize the necessity of due process for public college students, holding in Dixon v. Alabama State Board of Education, 294 F.2d 150, 158–59 (5th Cir. 1961) that
“due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct.” In Dixon—which, like the instant case, involved an allegation of misconduct, not of academic failure—this Court held that, based on the particular facts at issue, due process required the production of the names and testimony of adversarial witnesses, the opportunity to call supporting witnesses, the chance to present a defense, and the opportunity to inspect the findings of the hearing. Id. at 158–59.
[Does due process apply or not at a private school?
Do Constitutional rights apply at a private school, or are they left at the door, and does a private university become a 'constitution-free' zone?]
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Quasimodo
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Apr 12 2011, 02:36 PM
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Citing Dixon, the Supreme Court ruled nine years later in Goss v. Lopez, 419 U.S. 565, 576; 95 S. Ct. 729, 737 (1975) that even a ten-day suspension from a public high school “may not be imposed in complete 8 disregard of the Due Process Clause.”
The Goss Court further noted that in the wake of this court’s decision in Dixon, “the lower federal courts have uniformly held the Due Process Clause applicable to decisions made by tax-supported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion.” Id.
[Is the distinction between private and public schools made here because the courts assume a contract at a private school (in the student handbook) which covers suspensions? (Don't know.) But if so, and if the handbook/contract governs, then the process will be whatever the contract stipulates?
Note: the court's decision here was that a student handbook was indeed a contract.]
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Quasimodo
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Apr 12 2011, 02:39 PM
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C. College Administrators Are Closely Watching This Case
[What will be the conclusions administrators draw from Judge Beaty's rulings?]
College administrators are quick to seize upon developments in the law that grant them greater discretion to regulate and censor expression on campus.
(snip)
For one, college students in pursuit of a diploma are more likely than other citizens denied rights by government actors to tolerate the abuse at issue rather than risk endangering their prospect of graduation by filing a complaint in federal court against their college or university.
While a defendant in a criminal case is already embroiled in legal proceedings and has a clear, immediate incentive to seek any and all legal remedies for denials of constitutional rights she may have suffered, a college student may rationally conclude that it is far more advantageous to keep quiet. Additionally, college students are less likely to be fully cognizant of the extent of their rights on campus, and may not even be aware of the fact that they have been denied a right to which they are legally entitled.
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Quasimodo
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Apr 12 2011, 02:42 PM
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Once Zaccari decided to proceed with the administrative withdrawal, Gaskins expressed even more adamantly that Zaccari was not following proper procedures. When Zaccari instructed Gaskins to draft a letter to Barnes, requiring him to produce documentation proving that he was not a threat in order to maintain his enrollment at VSU, Gaskins wrote at the top of the proposed letter “you should note that due process dictates that the student be apprised of what particular policy has been violated, an opportunity to be heard and also informed of the appeal process.” Op. at 18.
[Did anyone at Duke express such concerns to Brodhead? Did the in-house counsel advise ANYTHING at all about the case?]
Instead of heeding Gaskins’ advice and providing these rights to Barnes, Zaccari signed a note, placed under Barnes’ door, asserting that Barnes had been administratively withdrawn
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Quasimodo
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Apr 12 2011, 02:45 PM
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A reasonable university administrator would have known, as Zaccari did, that he was failing to provide Barnes with the process required before depriving an enrolled student of his right to continued enrollment. Zaccari is therefore not entitled to qualified immunity, based on the specific facts of this case...
[What did Brodhead know, what would he reasonably have known...?]
Zaccari knowingly flouted the clauses of the VSU Student Handbook that would have safeguarded Barnes’ due process rights...
The VSU Student Handbook, which is a valid, binding contract between Barnes and the BOR, provides that an “accused student . . . shall be notified in writing of specific charge(s) made against them and of the date, time, and place where a hearing will be held...
The district court’s ruling on Barnes’ contract claim further reinforces the fact that Zaccari knowingly initiated a course of conduct that deprived Barnes of due process. As Appellants recognize, Barnes’ due process claim is “intertwined with the alleged breach of contract for failure to follow the handbook.”
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jewelcove
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Apr 12 2011, 04:38 PM
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involved the removal or withdrawal of a college student, support the same conclusion -- that a college student is entitled to notice and some sort of hearing prior to
- Quote:
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Citing Dixon, the Supreme Court ruled nine years later in Goss v. Lopez, 419 U.S. 565, 576; 95 S. Ct. 729, 737 (1975) that even a ten-day suspension from a public high school “may not be imposed in complete 8 disregard of the Due Process Clause.”
Does this include Ryan McFadyen's "removal for his own safety" that was originally reported by CBS News as a suspension. Notice his name and home town were also revealed.
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No charges have been filed in the case, but sophomore Ryan McFadyen, 19, of Mendham, N.J., the player who wrote the e-mail, has been suspended. The school’s president has called the e-mail "sickening" and "repulsive." http://www.cbsnews.com/stories/2006/04/05/national/main1476021.shtml
Question...How was his name given out to the media when FERPA rules require privacy for the students? IIRC someone wanted Ryan to sign a "release". Question...Who drafted that release? Question...Was the release signed by Ryan? If so, before or after the suspension info was released to the public and media?
- Quote:
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“due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct.” In Dixon—which, like the instant case, involved an allegation of misconduct, not of academic failure—this Court held that, based on the particular facts at issue, due process required the production of the names and testimony of adversarial witnesses, the opportunity to call supporting witnesses, the chance to present a defense, and the opportunity to inspect the findings of the hearing. Id. at 158–59.
Question...What kind of "tax support" is required? Most research universities receive a lot of federal and state tax dollars.
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