Upheld: Traditional Due Process Standards in Disciplinary Decisions

669 F.3d 1295 (11th Cir. 2012).

By Kerry Brian Melear

University of Mississippi

Overview

In February of 2012, the Unites States Court of Appeals for the Eleventh Circuit rendered an opinion embracing traditional procedural due process standards in a public university’s disciplinary dismissal. In Barnes v. Zaccari,[1] Valdosta State University (VSU) student, Thomas Barnes, was administratively dismissed by the institution’s president because of the student’s perceived threat to campus, particularly in the wake of the devastating shootings at Virginia Tech. Although the institution’s handbook and Georgia Board of Regents (board) publications included specific references to procedural due process standards involving notice of charges and an opportunity to be heard in student disciplinary dismissals, Barnes was dismissed under an administrative provision related to campus safety and was provided no procedural due process.

A federal district court denied the president’s motion for summary judgment, reasoning that the decision was disciplinary in nature and required the provision of due process to the student. Barnes also argued a breach-of-contract claim against the board of regents because of the denial of due process, and the district court denied the board’s motion for summary judgment on that claim as well. On appeal, the Eleventh Circuit affirmed the lower court’s decision regarding the due process claim, relying on traditional principles of procedural due process in public university disciplinary decisions. However, the appellate court reversed the denial of summary judgment on the student’s breach-of-contract claim, finding that the state governing board had not waived its sovereign immunity rights to breach-of-contract cases in federal court.

Summary of Facts

Thomas Barnes originally enrolled as a student at Valdosta State University in 2005 and re-enrolled in 2007 after a transfer to another institution. During his term as a VSU student, he suffered from agoraphobia and anxiety disorder, for which he sought treatment by university counseling services. His grades suffered, but he maintained a sufficient average to remain enrolled. Also during Barnes’s tenure as a student, VSU’s president, Ronald Zaccari, developed a campus master plan that included a proposal for a parking garage. The campus newspaper published a story about the parking garage in March of 2007, alerting Barnes to the project. Barnes, an environmentalist, was concerned about the environmental impact of the proposed parking garage, as well as its cost and use of university property.

Barnes posted flyers about the project on campus, emailed university administrators, and included information on his Facebook page. Zaccari saw a flyer and was not pleased. He discerned Barnes’s identity, and Barnes subsequently wrote a letter of apology to Zaccari, assuring him the flyers and other information did not constitute personal attacks. However, Barnes continued to voice his concerns about the project through letters to the editor of the student paper and direct contacts with members of the Georgia Board of Regents, all of which were respectful in tone. When Zaccari learned that Barnes had personally contacted members of the board directly, he called Barnes into his office on April 16, 2007, for a meeting to discuss plans for the project and his frustration with Barnes’s opposition to the project.

On that same day, a Virginia Tech student tragically killed thirty people on that campus, placing Zaccari and other administrators in a state of heightened alert. Barnes subsequently sent a number of emails to Zaccari, continuing to state his opposition and demonstrating his zeal for environmental issues. These communications contained no overt or implied threats. Some days later, Barnes placed a letter requesting an exemption from a student fee in a staff member’s inbox, which Zaccari contended was a breach of his office’s security. Zaccari began monitoring Barnes’s Facebook page and devising a method to remove Barnes from campus. He convened a number of meetings with senior staff, including two mental health professionals who had counseled Barnes.

At these meetings, Zaccari labeled Barnes’s behavior as threatening, but no senior staff member agreed with the assessment. In fact, the mental health professionals repeatedly told Zaccari that Barnes was not a threat to himself or the campus community, and other university officials felt Zaccari was overreacting. Because Barnes’s academics were not sufficiently poor to remove him from campus, Zaccari explored other alternatives, such as a mental health withdrawal (requiring a mental health professional’s assessment of the student as a danger to himself or others) or a disorderly conduct charge that would require due process protections. Couching these alternatives as cumbersome, Zaccari decided to administratively withdraw Barnes under a board policy that permits any employee or student to be subject to dismissal or termination for activities that disrupt or attempt to disrupt efficient university operations.

Barnes was administratively withdrawn under this policy on May 7, 2007, without any provision of due process, a decision that the VSU campus attorney repeatedly warned would violate Barnes’s due process rights. The letter Barnes received (posted to his dormitory room door) outlining his dismissal conditioned his re-admission on submitting two letters from mental health professionals, which Barnes submitted but Zaccari determined did not meet requirements for re-admission. Barnes was also permitted to appeal the decision directly to the board, which referred the matter to an Administrative Law Judge. By December of 2007, Barnes had not received a hearing, and he filed suit in January of 2008. The board then reinstated him without a hearing. In his suit, Barnes asserted, among other claims, that Zaccari violated his procedural due process rights under the Fourteenth Amendment by removing him from campus without providing notice of the charges against him or an opportunity to be heard.

Barnes also argued a breach-of-contract claim against the board, asserting that provisions in the student handbook and other publications were breached when he was not afforded due process protections in his dismissal. Zaccari argued a qualified immunity defense, and the board asserted an Eleventh Amendment immunity defense, moving for summary judgment. The court denied the motions for summary judgment, and Zaccari and the board appealed. Zaccari and Qualified Immunity Qualified immunity protects governmental officials in their individual capacities as long as their conduct does not violate a clearly established constitutional or statutory right under a reasonable person standard. To claim qualified immunity, a defendant must prove that he or she was performing a discretionary action, which was undisputed in this case. The burden shifts then to the plaintiff, who must demonstrate two factors:

(1) The defendant violated a constitutional right, and

(2) That right was clearly established at the time the violation took place.

With regard to the first prong of the analysis, the Eleventh Circuit concluded that Barnes possessed a protected property interest in his enrollment at VSU, established by the board’s Policy Manual, as well as the VSU Student Code of Conduct (code), both of which are official governmental publications limiting the institution to punishment of students who commit a violation of the Code. Citing Goss v. Lopez[2] and Dixon v. Alabama State Board of Education,[3] the Eleventh Circuit held that Barnes’s entitlement to continued enrollment at a state university was protected by the Due Process Clause of the Fourteenth Amendment. Dixon has long been held to represent the “death knell” of in loco parentis, the concept that colleges and universities stood in place of the parent and strictly controlled all student activities, on and off campus.[4]

In Dixon, the Fifth Circuit concluded in 1961 that students at publicly funded colleges and universities possessed due process rights that require notice and some form of hearing prior to disciplinary dismissals from campus. In Goss, the United States Supreme Court held that for suspensions of ten days, students should receive notice of the charges against them and an opportunity to be heard. The Eleventh Circuit found that these two cases clearly established that Barnes was due notice and a hearing prior to his dismissal. Zaccari countered that he faced an emergency requiring quick action, but the appellate court found that no emergency existed, especially in light of mental health professional assessments that Barnes was not a threat to himself or others.

With regard to the second prong of the qualified immunity analysis (the right was clearly established at the time the violation took place), the Eleventh Circuit concluded that that board policy and the VSU code both held that a student could not be suspended or expelled without due process in May of 2007. The appellate court further stated that even if Zaccari could demonstrate that Barnes’s removal was an administrative withdrawal rather than a suspension or expulsion, his right to pre-deprivation due process would remain clear. Thus, because Barnes possessed a protected property interest in his continued enrollment, and should have been afforded due process prior to his removal from campus, the Eleventh Circuit affirmed the district court’s denial of qualified immunity to Zaccari and remanded for further proceedings.

The Board, Breach of Contract, and Eleventh Amendment Immunity

Barnes argued that board and VSU publications established a contract between student and institution that was breached when he was not provided due process protections in his dismissal. The board countered that the Eleventh Amendment to the United States Constitution protects government agencies from legal liability. The district court concluded that the State of Georgia waived its Eleventh Amendment immunity from suits for breach-of-contract claims and ruled in favor of Barnes on his contract argument. The Eleventh Circuit disagreed, holding that neither the Georgia Code nor the Georgia Constitution, which waive sovereign immunity for state breach-of-contract claims, specifically consent to lawsuits in federal court.

Without express consent to federal suits, Georgia has not waived its Eleventh Amendment immunity from breach-of-contract claims in federal court. Notwithstanding, it is worth noting that if the Eleventh Circuit had reached the conclusion that Georgia had in fact waived immunity from federal contract suits, Barnes’s contract claim would likely have been affirmed. The contractual relationship between student and institution created through institutional publications has long been recognized by the courts.[5] Conclusion In Barnes v. Zaccari, the issue focused squarely on whether a public university college student who was expelled from campus should have been provided with procedural due process protections.

The Eleventh Circuit, relying on traditional due process precedent, held that the answer was very clearly “yes,” re-affirming the long-held notion established in Dixon that students at publicly funded colleges and universities possess constitutional due process rights as participants in university disciplinary procedures. Barnes’s breach-of-contract claim was not affirmed because the appellate court concluded that Georgia had not waived sovereign immunity from suit in federal court, but absent that conclusion, the contract claim would likely have been upheld. Student litigants have previously met with success through contract arguments when they demonstrate that a lack of due process in a disciplinary proceeding violates a contractual obligation created through university publications and procedures.