SAM E. HADDON, District Judge.
Before the Court are: (1) Defendants' Motion for Summary Judgment,
Plaintiff asserts claims
Plaintiff's Count I alleges violation of the Fourteenth Amendment Due Process clause under 42 U.S.C. § 1983 ("§ 1983") against the Individual Defendants; Count II, violation of the First Amendment, under § 1983, against the Individual Defendants; Count III, violation of Title IX of the Education Amendments under 20 U.S.C. § 1681 ("Title IX") against MSU; and Count IV, Declaratory Judgment against the Individual Defendants.
In Counts I and II, Plaintiff seeks:
In Count III, Plaintiff requests:
Count IV demands:
Plaintiff has moved for partial summary judgment on Count I, Count II, and Count IV.
The following material facts are not disputed:
1. "Erik Powell ("Powell") was a student [at MSU] during the summer semester of 2016" and was enrolled in a Contemporary Issues in Human Sexuality class taught by Katharine Kujawa ("Kujawa").
2. Powell, as a student and participant in Kujawa's class, signed and submitted to her at her direction a "Contemporary Issues in Human Sexuality Confidentiality Agreement" which stated:
3. When Powell and Perry attended class on May 24, 2016, "the topic of discussion was transgender issues."
4. "After class on May 24, 2016, Powell spoke with Kujawa [in her office] believing that their conversation was confidential."
5. "On May 26, 2016, almost two full days after her meeting with Powell, Kujawa filed an on-line Safety & Welfare Reporting Form with the Dean of Student's office."
6. After class on May 26, 2016, Kujawa informed Perry of the conversation she had with Powell on May 24, 2016.
7. On May 26, 2016, "Perry filed a complaint with [OIE]."
8. "On May 26, 2016, Shaffer assigned James Sletten ("Sletten")
9. On May 26, 2016, Powell was informed that a formal complaint had been filed against him and that a trespass warning, interim suspension, and no-contact order had been issued.
10. At 4:42 p.m. on May, 26, 2016, Shaffer sent an email to Perry which included: "[t]hank you for coming in and telling us what happened. I appreciate so much that you trusted us with this information."
11. OIE lifted Powell's interim suspension and trespass warning on June 2, 2016, with the exception that he was "still prohibited from coming on campus by the [OIE] for the duration of [the] investigation."
12. Four days later, on May 31, 2016, and after Powell had been suspended, Sletten interviewed Powell, Perry, and Kujawa.
13. "On June 3, 2016, Sletten provided to Perry and Powell [an] initial factual summary of his investigation and requested their responses by June 8, 2016."
14. Sletten submitted his "final report of the investigation" ("Sletten's Report") on June 9, 2016.
15. On June 10, 2016, Sletten informed Shaffer: "I spoke with [Perry] yesterday and she seem[ed] to be in better spirits. [Perry] is interested in going to the Big Sky Pride Parade, but isn't sure if she will be able to make it. I offered a ride and she said that she'll get back to us next week."
16. "Powell appealed the OIE findings,"
17. On June 15, 2016, Shaffer emailed Perry an update on the OIE investigation which included words of encouragement to her and the statement that "Orlando knocked the wind out of me, and I'm only an aspiring ally. If you need support please know I am here for you, as is my staff."
18. On July 21, 2016, Robert Stutz ("Stutz"), Montana Assistant Attorney General, appointed as hearing officer on Powell's appeal, conducted a hearing on the appeal.
19. On August 15, 2016, Stutz issued a written decision on Powell's appeal ("Appeal Decision"), reciting that: (1) "Powell [did] not substantiate[] the existence of any grounds for appeal"; and (2) concluding that Sletten's "Report should be approved."
20. "On August 17, 2016, [] Mokwa determined `Based upon the [Appeal Decision], I support the findings that the evidence submitted provides a reasonable basis for the resulting decision. In addition, there were no procedural errors so substantial as to deny a fair hearing to either party.'"
21. "On August 25, 2016, Sletten prepared a Sanctioning Recommendation for [Powell] for [Dean of Students, Dr. Caires ("Caires")]."
22. Under MSU's Discrimination Grievance Procedures, the responsible officer "makes recommendations for remedial actions," and "[i]n the case of student Respondents, the Discipline Authority is [vested in] the Dean of Students or other University official with the authority to impose discipline on students," and impose sanctions.
23. On September 1, 2016, Caires issued a Sanctions Letter to Powell: (1) suspending him from MSU for the Fall 2016 semester; (2) prohibiting him from having access to MSU-Bozeman facilities through December 31, 2016; (3) restricting him from making any contact with Perry; (4) requiring completion of anger management training prior to re-enrollment; (5) requiring completion of civil rights training prior to re-enrollment; and (6) requiring completion of a Campus Safety Questionnaire upon re-enrollment.
24. On September 30, 2016, Powell filed an appeal of Mokwa's decision to Commissioner of Higher Education, Clayton Christian ("Christian").
25. On December 22, 2016, Christian denied Powell's appeal and affirmed Mokwa's decision "and sanctions imposed by the Dean of Students."
26. "Powell received a tuition refund for the summer courses he enrolled in at MSU during the Summer 2016 term."
Fed. R. Civ. P. 56 provides in part "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Plaintiffs § 1983 claim is grounded in an asserted violation of his First Amendment rights.
"[T]rue threat[s]" are not protected by the First Amendment,
Furthermore, a true threat is one that, when considered in light of "the whole factual context and `all of the circumstances' . . . `is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.'"
Kujawa contends that during the discussion in her office, Powell stated "`that if [Perry] approached him, he would . . . pull her aside and say I'm not comfortable with you speaking to me. Please don't talk to me outside of class. And . . . that if she persisted and wanted to continue to talk to him, that he would break her face.'"
Additional factual disputes exist as to Powell's description of an encounter with a self-described gay man some nine years earlier, and about Powell having loaded guns in his truck.
Disputed material facts outlined above remain with respect to Plaintiff's § 1983 claim grounded in an asserted violation of his due process rights.
Factors to be considered in addressing the due process issue include: "[(1)] the private interest that will be affected by the official action; [(2)] the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and [(3)] the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
Engagement of "an impartial decision maker is a fundamental right" that cannot be denied without due process of law.
Here, Plaintiff has raised issues of bias on the part of persons assigned to his case by MSU and who were charged with the responsibility to undertake and carry out the investigation and disciplinary process. Unresolved issues of material fact relevant to those matters remain. The Court, on the present record, cannot conclude or undertake to conclude that one or more of those involved in the investigation did not prejudge a material issue and thereby taint the entire investigation with bias.
Some courts have concluded generally that a university student facing disciplinary charges and suspension does not have the right to cross-examine witnesses against him.
As recently as September 2018, the Sixth Circuit reaffirmed its holding in Doe,
Like both Doe and Baum, the decision made by MSU was a "he said/she said" dispute turning on credibility.
Issues of material fact continue to be present regarding Shaffer's conduct in the selection of Sletten as investigator and in the conduct of the investigation by Sletten without prejudgment of the issue of Powell's guilt. Correspondence and exchanges between Sletten, Shaffer, Perry, and Assistant Dean of Students Grusonik, viewed in the light most favorable to the Plaintiff, establish that questions of material fact remain as to whether Sletten's investigation was impartial and whether Shaffer unfairly prejudged OIE's investigation against Powell. Moreover, MSU's imposition of sanctions against Powell before any decision on the merits of Perry's complaint had been reached clearly calls into question whether MSU itself inappropriately prejudged the case.
Here, the parties remain in dispute over matters related to the severity and extent of Powell's punishment, specifically, whether a "hold" still remains on his account, preventing him from returning to MSU-Bozeman, whether his suspension remains part of his official permanent record, and whether a background check on Powell would reveal records of the investigation and sanctions.
As stated above, significant unresolved issues of material fact remain that relate to Powell's asserted right of confrontation and cross-examination. At this point, the undisputed record establishes that MSU suspended and removed Powell from MSU, barred him from a public university campus and imposed additional sanctions on the basis of a single statement claimed to have been made by him to an instructor, in what he believed to be a confidential meeting with her. It was this same single statement attributed to Powell, and which he denies, that MSU determined constituted a violation of its Hostile Environment Policy.
The MSU policy statement, taken as a whole, strongly suggests that more than a single statement, made, if at all, under the circumstances and in the setting described by Kujawa, is required to support a finding of a "hostile environment." Moreover, the claimed statement was not even made to Perry, the alleged victim, or in her presence. By the record, it was conveyed to her and to others only through a third person when Powell was not present.
In addition, the question remains whether the sanctions imposed against Powell beyond suspension from the university, including a ban from campus, ban from contact with Perry, and the requirements for anger management training and civil rights training were constitutionally permissible as prerequisites to readmission to MSU.
Title IX of the Education Amendments of 1972 ("Title IX") provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
Powell asserts that MSU "treated . . . Perry [and himself] differently under Title IX by ignoring Perry's threatening gesture of showing a pocket knife when asked about her concerns about a potential encounter with Powell," while finding that Powell violated MSU policy by virtue of a statement allegedly made to Kujawa and directed toward Perry.
A private right of action for money damages stemming from a violation of Title IX has indeed been recognized by the Supreme Court.
Here, MSU could be found to have "acted erroneously" particularly in light of the record that MSU ultimately acted adversely to Powell's interests by removing him from the university notwithstanding that Powell had complied with Kujawa's requirement that her students execute a confidentiality agreement and notwithstanding that it took no action related to the undisputed statement of Perry about possession of a knife. Furthermore, Sletten's and Shaffer's treatment of Perry during the investigation could be found to have been biased. Whether disparate treatment between Powell and Perry, as claimed by Powell, occurred, and whether, if it did occur, it can be said MSU acted erroneously, cannot be resolved as a matter of law at this point. Genuine issues of material fact exist as to whether MSU's actions were biased or discriminatory. The Title IX claim, for now, remains viable.
The Court has determined, as stated above, that issues of fact preclude summary judgment in favor of Defendants on Counts I, II, and IV. Plaintiff likewise is not entitled to summary judgment on the same claims.
Plaintiff further argues, however, that the MSU policy he was found to have violated is facially unconstitutional under the First Amendment. As written, the policy prohibits "Hostile Environment Harassment" which can be created by harassment based on, inter alia, "gender expression," that is "sufficiently serious . . . and objectively offensive so as to deny or limit a person's ability to participate in or benefit from the University's programs, services, opportunities or activities."
The policy itself explains that "[m]ere offensiveness is not enough to create a hostile environment," and that "[i]n determining whether harassment creates a hostile environment, the harassment will be considered not only from the perspective of the individual who feels harassed,
This policy, arguably is not unconstitutionally overbroad or vague on its face. Rather, it contains limitations intended to protect against the university imposing overly restrictive limits on protected speech. In the university setting, speech is protected only from unreasonable regulation that favors a particular viewpoint.
The MSU policy establishes that a hostile environment is not created by "mere offensiveness." This provision itself may be said to reduce the potential for inappropriate restrictions on viewpoint-based distinctions in speech. Moreover, neither the complainant nor the investigator would be entitled to claim a violation of this policy because he or she was offended by the speaker's viewpoint. Rather, harassment that violates the policy must have been severe enough to deny or limit a person's ability of access or participation in MSU's programs and services. The policy likewise required consideration of an objective, reasonable person's perspective in making a determination of whether the policy was violated, not just that of the complainant.
In this case, MSU, acting through its designated and selected personnel, made a determination of violation of the policy by Powell without evidence of record of meaningful consideration having been accorded to the required adequate reasonable-person perspective. A separate issue also remains as to whether MSU's policy, as interpreted and applied in this case, exceeded the bounds of constitutionally permitted conduct and action.
At a minimum, MSU's application of the policy in the manner it selected and carried out, leaves open and unanswered questions of material fact and issues of law which preclude a summary judgment that upholds the policy as applied by MSU, in suspending Powell as a student, in excluding him from the MSU campus, and in imposing other sanctions against him that were facially penal in nature.
While Plaintiff seeks summary judgment on his declaratory judgment claim, this claim rests upon the grounds of a violation of his First Amendment and procedural due process rights. The Court has determined that issues of fact preclude summary judgment on those claims. Plaintiff is not entitled to summary judgment on his declaratory judgment claim.
The Eleventh Amendment bars unconsented lawsuits in federal court against states or the "arms" of states.
Issues of fact preclude summary judgment on Eleventh Amendment immunity grounds for official capacity claims against the Individual Defendants in Counts I, II, and IV. "Actions seeking only prospective declaratory or injunctive relief against state officers in their official capacities,"
Defendants argue that no "ongoing violation" is occurring."
Furthermore, the record is not clear, at this stage, as to which of the Individual Defendants, in his or her official capacity, was or were sufficiently connected with Powell's claims of ongoing violations to be subject to such an injunction. Such facts are material to whether the Individual Defendants are immune from suit under the doctrine of Ex Parte Young.
ORDERED:
Defendants' Motion for Summary Judgment
