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F.I.R.E files amicus brief; re:college administrators violating student's civil rights
Topic Started: Apr 12 2011, 11:58 AM (410 Views)
Texas Mom

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."
Edited by Texas Mom, Apr 12 2011, 12:02 PM.
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Jack Wade

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

Some interesting (if maybe tangential) points from the Judge's Sept. 2010 opinion:



Quote:
 
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

Amicus brief:

Quote:
 
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

More from the Amicus brief:

Quote:
 


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

Quote:
 
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

Quote:
 
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.
Edited by Quasimodo, Apr 12 2011, 02:40 PM.
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Quasimodo

Quote:
 
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

Quote:
 

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.”
Edited by Quasimodo, Apr 12 2011, 02:45 PM.
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jewelcove

Quote:
 
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:
 
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.
Quote:
 
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:
 
“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.
Edited by jewelcove, Apr 12 2011, 04:41 PM.
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