Terrance Esfeller v. Board of Supervisors for LA, et al


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Terrance Esfeller v. Board of Supervisors for LA, et al Doc. 0 Case: 09-30611 Document: 00511193439 Page: 1 Date Filed: 08/03/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-30611 August 3, 2010 Lyle W. Cayce Clerk T E R R A N C E PATRICK ESFELLER P la in t if f -A p p e lla n t v. S E A N O'KEEFE, In his official capacity as the Chancellor of Louisiana State U n iv e r s it y , Baton Rouge D e fe n d a n t s -A p p e lle e s A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:08-CV-63 B e fo r e KING and GARZA, Circuit Judges.* P E R CURIAM:* * T h is is an appeal from the district court's denial of a preliminary in ju n ctio n . Appellant Terrance Patrick Esfeller sought preliminary and p e r m a n e n t injunctive relief, enjoining the enforcement of the Louisiana State U n iv e r s it y ("LSU" or the "University") Code of Conduct (the "Code"). * This matter is being decided by a quorum. 28 U.S.C. 46(d). Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. ** Dockets.Justia.com Case: 09-30611 Document: 00511193439 Page: 2 No. 09-30611 I Date Filed: 08/03/2010 I n 2006, Esfeller, at the time an LSU student, was charged by the LSU O ffic e of Judicial Affairs with four non-academic misconduct violations: (1) extreme, outrageous or persistent acts, or communications that a r e intended or reasonably likely to harass, intimidate, harm, or h u m ilia te another; (2 ) committing an act or attempting to commit an act on campus t h a t would be in violation of city, parish, state, or federal law; (3 ) attempting to commit or assisting with the commission or a t t e m p t e d commission of any of the foregoing listed offenses; and (4) violating any rule and/or regulation of the University, including, b u t not limited to, administrative rules of campus offices. T h e charges arose from a dispute between Esfeller and his former girlfriend, who file d a complaint with LSU campus police. Esfeller allegedly persistently h a r a s s e d and threatened his ex-girlfriend through email and social networking s it e s , such as MySpace and Facebook, and physically confronted her. She asked E s fe lle r to stop but Esfeller persisted. After her complaint, the LSU police p r e p a r e d a report detailing the incidents; however, Esfeller's ex-girlfriend d e c id e d not to press charges. Esfeller was served with notice of the violations, w h ic h apparently spurred him to escalate the harassment by threatening to b e g in his own investigation into her conduct, threatening her scholarship status, a n d threatening her reputation. Esfeller also threatened to post unflattering e m a ils about her and to contact the father of her child to incite a custody battle. E s fe lle r met with a dean regarding the charged violations. The dean c o n d u c t e d an investigation and found Esfeller to be in violation of the Code. Esfeller was offered a one-year disciplinary probation term and enrollment in an a n g e r management course. He rejected the proposed sanctions and requested a second investigation into the matter. A second dean investigated; she, too, fo u n d Esfeller in violation of the Code and offered the same sanctions. Esfeller a g a in rejected the sanctions and told the dean that he was aware that another s t u d e n t with similar violations was given a disciplinary warning for one 2 Case: 09-30611 Document: 00511193439 Page: 3 No. 09-30611 Date Filed: 08/03/2010 s e m e s te r . The second dean offered to match that sanction, along with c o m p le t io n of an anger management court. Esfeller again rejected the sanctions a n d asked for a panel hearing. B e t w e e n April and July 2007, LSU repeatedly tried to schedule a panel h e a r in g but had to reschedule a number of times due to Esfeller's schedule, the a v a ila b ilit y of the complaining witness, and the availability of panel members. The hearing was finally scheduled for July 27, 2007 and three notices were sent t o Esfeller, in which he was informed that he would be able to present witnesses a n d documentary evidence. At the close of business the evening before the h e a r in g , Esfeller informed LSU that he would not be able to attend because of w o r k obligations. LSU proceeded with the hearing, and although Esfeller was a b s e n t and his attorney was not permitted to participate in or observe the h e a r i n g , the panel heard from Esfeller's designated witnesses and reviewed d oc u m e n t a r y evidence that he submitted. The panel unanimously found Esfeller i n violation of the Code. Esfeller appealed the panel's decision to LSU's Vice C h a n c e llo r who denied the appeal. Esfeller then sought review by LSU's t h e n -C h a n c e llo r Sean O'Keefe, who denied the appeal. E s fe lle r filed suit in the district court against O'Keefe, in his official c a p a c it y , and LSU's Board of Supervisors (the "Board"), alleging violations of 42 U .S .C . 1983 and 1988, the First, Fifth, Sixth, and Fourteenth Amendments o f the Constitution, and the Family Educational Rights and Privacy Act ( " F E R P A " ), 20 U.S.C. 1232g.1 Esfeller alleged that the LSU Code is facially a n d as-applied overbroad and vague. He also asserted that LSU deprived him o f procedural due process in violation of the Fourteenth Amendment by failing The district court granted the Board's motion to dismiss all claims against it. Esfeller does not appeal that dismissal. The district court also dismissed all monetary claims against O'Keefe, and all claims based on violations of the Fifth and Sixth Amendments and FERPA. Accordingly, the only remaining claims are for injunctive relief, attorneys' fees and costs against O'Keefe in his official capacity, stemming from alleged violations of the First and Fourteenth Amendments. 1 3 Case: 09-30611 Document: 00511193439 Page: 4 No. 09-30611 Date Filed: 08/03/2010 t o provide sufficient notice and an opportunity to be heard in the disciplinary p r o c e e d in g . He sought preliminary and permanent injunctive relief invalidating a n d restraining enforcement of the Code and "enjoining defendants from e n fo r c in g the disciplinary punishment levied against [him]" by the University h e a r in g panel. The district court denied preliminary injunctive relief, finding t h a t Esfeller was unlikely to succeed on the merits of either claim. II W e briefly address whether Esfeller meets the requirements for Article III ju r is d ic t io n . Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 413 n.16 (5th C ir . 1999). He is no longer a student at LSU, having been expelled because of a low grade-point average. Further, he has no plans to return to LSU. Mootness g o e s to the heart of the court's Article III jurisdiction. A case becomes moot if : " (1 ) there is no reasonable expectation that the alleged violation will recur and (2 ) interim relief or events have completely and irrevocably eradicated the effects o f the alleged violation." Id. at 41314. Standing alone, Esfeller's request for in ju n c t iv e relief invalidating the offending Code provision is moot. Where a s t u d e n t is no longer enrolled in the school whose policies he is challenging, there is no case or controversy sufficient to support prospective injunctive relief. See W a r d v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 606 (5th Cir. 2004); Hole v. T e x . A&M Univ., No. 04-CV-175, 2009 U.S. Dist. LEXIS 123291, at *20 (S.D. T e x . Feb. 10, 2009). Here, however, Esfeller received a disciplinary sanction, r e fle c t e d on his academic record and he seeks to prevent the University from e n fo r c in g that punishment. Thus, there are collateral or future consequences s u ffic ie n t to satisfy the case or controversy requirement. Cf. Kennedy v. M in d P r in t (In re ProEducation Int'l, Inc.), 587 F.3d 296, 299 n.1 (holding that in ju r y to attorney's reputation stemming from disqualification order sufficed to con fe r Article III jurisdiction for appeal); see also Sullivan v. Houston Indep. Sch. D i s t., 307 F. Supp. 1328, 1338 (S.D. Tex. 1969). Although, absent the blemish o n his academic record, Esfeller would not have a live controversy or standing 4 Case: 09-30611 Document: 00511193439 Page: 5 No. 09-30611 Date Filed: 08/03/2010 t o challenge the validity of the Code now that he is no longer subject to it, the s a n c t io n is an actual, concrete injury sufficient to satisfy Article III. See F a ir c h ild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 754 (5th Cir. 2010). Thus, h e can seek to invalidate the Code provisions and enjoin their application b e c a u s e , if successful, Esfeller will no longer be subject to the disciplinary s a n c t io n , which would be removed from his record. III T h is court reviews the denial of a preliminary injunction for abuse of d is c r e t io n . Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 2 8 4 (5th Cir. 1999) (per curiam). The district court's findings of fact are r e v ie w e d for clear error, while conclusions of law are reviewed de novo. Id. at 2 8 4 8 5 . A preliminary injunction "is an extraordinary and drastic remedy, not t o be granted routinely, but only when the movant, by a clear showing, carries a burden of persuasion." Black Fire Fighters Ass'n v. City of Dallas, 905 F.2d 63, 6 5 (5th Cir. 1990) (per curiam). A preliminary injunction will issue if the m o v a n t establishes: "(1) a substantial likelihood of success on the merits, (2) a s u b s t a n t i a l threat of irreparable injury if the injunction is not issued, (3) that t h e threatened injury if the injunction is denied outweighs any harm that will r e s u lt if the injunction is granted, and (4) that the grant of an injunction will not d is s e r v e the public interest." Concerned Women for Am. Inc. v. Lafayette Cnty., 8 8 3 F.2d 32, 34 (5th Cir. 1989). IV E s fe lle r 's overbreadth challenge attacks a single provision of the Code, p r o h ib it in g "extreme, outrageous or persistent acts, or communications that are in ten d ed or reasonably likely to harass, intimidate, harm, or humiliate another." Esfeller argues that the Code provision is facially unconstitutional.2 A Although Esfeller nominally asserts an as-applied challenge, he wholly fails to identify the conduct or speech that he contends is protected, let alone argue how the Code impinged on his rights. Accordingly, Esfeller has waived any argument that the Code is 2 5 Case: 09-30611 Document: 00511193439 Page: 6 No. 09-30611 Date Filed: 08/03/2010 " fa c ia l challenge to a [regulation] is . . . the most difficult challenge to mount s u c c e s s fu lly , since the challenger must establish that no set of circumstances e x is t s under which the [regulation] would be valid." United States v. Salerno, 4 8 1 U.S. 739, 745 (1987). We first consider "whether the [provision] reaches a s u b s t a n t ia l amount of constitutionally protected conduct. If it does not, then the o v e r b r e a d t h challenge must fail." Fairchild, 597 F.3d at 755. The party c h a lle n g in g the statute must demonstrate "a realistic danger that the statute it s e lf will significantly compromise recognized First Amendment protections of p a r tie s not before the [c]ourt before a statute will be struck down as facially o v e r b r o a d ." Hersh, 553 F.3d at 762 (internal quotation marks omitted). " A school need not tolerate student speech that is inconsistent with its `b a s ic educational mission,' even though the government could not censor similar s p e e c h outside the school." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1 9 8 8 ) (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986)). The highest level of scrutiny--applied to school regulations that are viewpoints p e c ific -- r e q u ir e s the school to show that the expression would "substantially in t e r fe r e with the work of the school or impinge upon the rights of other s t u d e n t s ." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1 9 6 9 ). Thus, for Esfeller's facial challenge to succeed, the overbreadth must be " s u b s t a n t ia l in relation to the [provision's] legitimate reach. Hersh, 553 F.3d at 762. E s fe lle r relies heavily on the Third Circuit's decision in Saxe v. State C o lle g e Area School District, 240 F.3d 200, 209 (3d Cir. 2001). Although the C o d e provision at issue here is similar to the code found to be overbroad in Saxe, w e find the provisions sufficiently distinguishable to conclude that Esfeller is u n lik e ly to be able to show that the Code provision is unconstitutionally unconstitutional as applied to him. See, e.g., Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 762 n.21 (5th Cir. 2008). 6 Case: 09-30611 Document: 00511193439 Page: 7 No. 09-30611 Date Filed: 08/03/2010 overbroad. Unlike the code at issue in Saxe, LSU's Code is not explicitly v ie w p o in t -b a s e d : it does not prohibit hostile, disruptive, or offensive speech or c o n d u c t based on "race, religion, color, national origin, gender, sexual o r ie n t a t io n , disability, or other personal characteristics," see id. at 202, which, e v e n if highly offensive, may very well be at the core of protected speech. Second, although the LSU Code, like the Saxe code aims at speech or conduct t h a t creates an intimidating, hostile, or offensive environment, the LSU Code r e q u ir e s that the expression be persistent, extreme or outrageous and " r e a s o n a b ly likely" to cause harassment or intimidation. Such a limitation e x c lu d e s from the Code's sweep speech or conduct that is merely offensive to s o m e o n e . See Saxe, 240 F.3d at 217. These limitations direct the Code at speech t h a t "intrudes upon . . . the rights of other students" and is legitimately subject t o regulation under Tinker. S im ila r ly , Esfeller cannot show that the provision is "impermissibly vague in all of its applications." Fairchild, 597 F.3d at 756. In the school regulation c o n t e x t , this court has held that proscriptions need not be as precise as would be r e q u ir e d in the criminal context. See Murray v. W. Baton Rouge Parish Sch. Bd., 4 7 2 F.2d 438, 442 (5th Cir. 1973). This court found a criminal statute p r o h ib it in g certain acts that "intimidate," "harass," "coerce," and "threaten" not t o be unconstitutionally vague. See CISPES (Comm. in Solidarity with People o f El Salvador) v. FBI, 770 F.2d 468, 47576 (5th Cir. 1985); see also United S ta t e s v. Cassel, 408 F.3d 622, 635 (9th Cir. 2005) (finding, in the criminal c o n t e x t , that the term "intimidate" was not unconstitutionally vague where the s t a t u t e limited the word by specifying the context in which the intimidation m u s t occur and the effect it must have); United States v. Bowker, 372 F.3d 365, 3 8 3 (6th Cir. 2004), vacated on other grounds, 543 U.S. 1182 (2005) (finding, in t h e criminal context, that the words "threaten" and "harass" have generally a c c e p t e d meanings that can be easily ascertained). Given the wider latitude in t h e context of school regulations than the criminal context, the district court did 7 Case: 09-30611 Document: 00511193439 Page: 8 No. 09-30611 Date Filed: 08/03/2010 n o t abuse its discretion in determining that Esfeller was unlikely to succeed in s h o w in g unconstitutional vagueness. V E s fe lle r challenges the disciplinary proceedings as violating due process b e c a u s e he did not receive sufficient notice of the charges or an opportunity to b e heard at the disciplinary hearing. A student subject to school disciplinary proceedings is entitled to some p r o c e d u r a l due process. Goss v. Lopez, 419 U.S. 565, 574 (1975). The student m u s t be given notice of the charges against him, an explanation of what evidence e x is t s against him, and "an opportunity to present his side of the story." Id. at 581. The student is not entitled to the "opportunity to secure counsel, to c o n fr o n t and cross-examine witnesses supporting the charge, or to call his own w it n e s s e s to verify his version of the incident." Id. at 583. R e g a r d in g his claim that he did not receive sufficient notice of the charges, E s fe lle r did, in fact, receive written notice of the charges against him, including c it a t io n to the precise provisions of the LSU Code that he was charged with v io la t in g . He was apprised of the charges, in person, on at least two occasions w h e n he met with LSU officials. He was given access to the Office of Judicial A f f a i r s ' file regarding the charges. Accordingly, Esfeller would be highly u n lik e ly to succeed on the merits of showing a lack of notice sufficient to violate d u e process. E s fe lle r 's claim that he was not given an opportunity to be heard is slightly m o r e troubling. Esfeller informed LSU that he could not be present at the panel d is c ip lin a r y hearing due to work obligations. LSU nonetheless held the hearing in Esfeller's absence and barred his attorney from observing or participating in t h e hearing. Although Esfeller argues that he was not given an opportunity to b e heard, the fact is that he was heard on a number of occasions by different L S U officials. LSU spent nearly four months trying to schedule the hearing and fin a lly selected a date in July 2007, during the summer break, when all 8 Case: 09-30611 Document: 00511193439 Page: 9 No. 09-30611 Date Filed: 08/03/2010 w it n e s s e s would be available as well as panel members. Esfeller was provided t h r e e separate notices of the hearing date and time but failed to tell LSU until t h e close of business the day before the hearing that he could not attend. And, a lt h o u g h Esfeller did not attend the panel hearing, he was heard on two s u b s e q u e n t occasions by officials with the power to overturn the panel ruling. See Sullivan v. Houston Indep. Sch. Dist., 475 F.2d 1071, 1077 (5th Cir. 1973) (n o t in g the well-settled principle that a procedural defect in an initial hearing c a n be cured by subsequent hearings). A s LSU points out, it is not clear that Esfeller was even required to be g iv e n the opportunity to be heard at the panel hearing. Goss requires "at least" a n "opportunity to characterize [the] conduct and put it in . . . the proper c o n t e x t ." Goss, 419 U.S. at 584. Esfeller does not dispute that he received at le a s t that much process. Esfeller was not entitled to have counsel present, to c r o s s -e x a m in e witnesses, or even to call his own witnesses. Id. at 583. Nonetheless, the panel heard from witnesses designated by Esfeller and c o n s id e r e d the documentary evidence that he submitted. These facts, coupled w it h the multiple other opportunities in which Esfeller exercised his right to be h e a r d , support the district court's determination that Esfeller was unlikely to s u c c e e d on the merits of showing a due process violation. Accordingly we find n o abuse of discretion. VI F o r the foregoing reasons, we AFFIRM the district court's order denying p r e lim in a r y injunctive relief. 9

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