Stebbins v. University of Arkansas et al

Filing 179

MEMORANDUM OPINION. Signed by Honorable Jimm Larry Hendren on December 28, 2012. (jn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DAVID STEBBINS

PLAINTIFF

v.

Civil No. 10-5125

UNIVERSITY OF ARKANSAS, and
G. DAVID GEARHART, in his
Official Capacity as Chancellor
of the University of Arkansas,
Fayetteville

DEFENDANTS

MEMORANDUM OPINION
On December 3-4, 2012, the captioned matter came on for trial
to the Court. Plaintiff appeared and represented himself. Defendants
appeared

by

their

representative

represented by counsel.

Dr.

Monica

Holland

and

were

The Court received documentary evidence and

heard testimony and the arguments of counsel, and now makes the
following findings of fact and conclusions of law.
PROCEDURAL HISTORY
1.

Plaintiff David Stebbins contends that the University of

Arkansas ("UA") discriminated against him, in violation of Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), by failing
in 2010 to allow him to re-enroll as a student after he was banned
from campus in 2007.

Stebbins contends that he has a disability -

Asperger's Syndrome - and that UA made no attempt to accommodate this
disability.
2.

He seeks money damages and injunctive relief.

Stebbins also asserted claims that his First Amendment

rights were violated by UA Chancellor David Gearhart, and that he was

subjected to employment discrimination by UA.

These claims were

dismissed before trial, as lacking merit, and will not be addressed
in this opinion.
FINDINGS OF FACT
3.
2007.

Stebbins enrolled in UA as an undergraduate in August,
In connection with his enrollment, on August 14, 2007, he

registered with UA's Center for Education Access ("CEA"), which
facilitates the college experience for students with disabilities.
In his Registration Form, Stebbins stated "I have Asperger's, a mild
form of Autism, making it difficult to find people who put up with
me.

Also,

authorities."

I

am

tactless,

&

can

accidentally

smart

off

to

Stebbins indicated that the accommodation he sought

was "help negotiating my tactlessness w/my professors."
A summary of Stebbins' registration meeting stated "Requested
accommodations (none at this time but he feels he may need services
in the future)."
4.

On

September

19,

2007,

Stebbins

returned

to

the

CEA

because he had lost his room key and his cell phone, and had problems
with the bookstore and with his bank account.

At that time the CEA

had not received documentation of Stebbins' disability.
5.

The

CEA

received

documentation

regarding

Stebbins'

disability from Vista Health Counseling Center in Harrison, Arkansas,
on September 24, 2007.

The Vista Health chart reflects diagnoses of

Intermittent Explosive Disorder ("IED"), Asperger's Disorder, and
Panic Disorder without Agoraphobia.

-2-

The most recent chart note,

dated April 10, 2007, reported that Stebbins' mother said he was
frequently verbally aggressive, and sometimes physically aggressive.
This note also reported that Stebbins had made no progress towards
his treatment plan goals and blamed his anger on others.

Other chart

notes reflect that Stebbins tended to externalize blame and was
unable to consider the feelings of others.
6.
Asperger's

Anne

Jannarone,

Syndrome

characterized

by

is

social

Director
a

of

the

CEA,

high-functioning

awkwardness

interaction, but not by violence.

and

testified

form

challenges

that

of

autism

with

social

In her experience, students with

Asperger's Syndrome do not make threats or use profanity.

IED is

characterized by explosive outbursts of anger and both verbal and
physical aggression, usually not premeditated.

Panic Disorder is

characterized by extreme fear and tremendous anxiety.
7.

Based on the Vista Health documentation, on September 24,

2007, the CEA accommodated Stebbins with preferential seating at the
front of his classes and permission to use a laptop computer in class
with the internet disabled.
8.

Stebbins

accommodation
violence.

did

relating

not
to

request

the

use

that
of

the

CEA

profanity

or

approve
threats

any
of

However, even if he had, Jannarone testified that such

conduct rises to the level of a conduct violation under the Code of
Student Life, and it would not be reasonable to accommodate it.

She

testified that UA does not provide unreasonable accommodations.
9.

Stebbins met with Jannarone on October 11, 2007, regarding

-3-

a lost book and problems with following his instructors in class.
Jannarone approved an additional accommodation -- permission to
record class lectures.
10.
dormitory.

On October 12, 2007, an incident occurred in Stebbins'
Debbie Hudson, who worked the front desk and handed out

mail, had been asked to deliver mail to several other dorms because
the dorms were shorthanded.

Hudson put up a sign saying she would

be back at 3 p.m., but she did not return until 3:15 p.m.
Upon her return, Stebbins confronted Hudson.

He was very

upset, cursing, raving, and slinging his arms, saying "you said you'd
be back at 3 and you weren't, I need my package and I need it now!"
While this was not Hudson's first encounter with an enraged, yelling,
cursing Stebbins, he seemed unusually violent to her that day, so
much so that she filled out an Information Report.

Hudson testified

that this was the first Information Report she had ever made in some
23 years at UA.

She wrote in it that "I thought I should write this

report up because I think David could be a danger to students and
myself in the hall."
Stebbins later "apologized" to Hudson, saying "I would never
hit you because if I did I would be suspended from school."
11.

On November 14, 2007, Stebbins went to the Treasurer's

Office, upset about a charge to his financial account. The situation
was described by Jo Ann Pepper, Financial Systems Coordinator and
Director of Student Accounts. She testified that Stebbins was upset,
yelling, cursing, and ranting.

The incident was so disturbing that

-4-

Pepper reported it to Dr. Daniel Pugh, Dean of Students, who
instructed the Treasurer's Office not to deal with Stebbins any
further, but to have him deal directly with Dr. Pugh's office.
12.

As a result of the incidents with Hudson and with the

Treasurer's Office, Stebbins came to the attention of Dr. Monica
Holland, who was at that time Director of the Office of Community
Standards and Student Ethics ("OCSSE"), the office charged with
enforcing the Code of Student Life.

Dr. Holland summoned Stebbins

to her office and charged him with a violation of Section I.B.8. of
the Code of Student Life, "Disorderly conduct including, but not
limited to, verbal abuse or inappropriate behavior or any activity
or behavior prohibited by Ark. Code Ann. § 5-71-207."
13.

Stebbins elected to have Dr. Holland conduct an Immediate

Administrative Hearing.
the charged violation.

She did so, and found him responsible for
She placed Stebbins on Conduct Probation for

one year, with the prospect of suspension if there were any more
violations of the Code of Student Life.

She also required Stebbins

to write a letter of apology to the Treasurer's Office; to write one
to Hudson unless it could be confirmed that, as he stated, he had
already apologized to her; and to meet with CEA personnel to develop
a plan to minimize future occurrences of the behaviors that had
resulted in his referral to OCCSE.
14.

Stebbins wrote a letter of apology to the Treasurer's

Office as instructed, but added a P.S.: "I would like to point out
(as calmly as I can, may I add) that I do not appreciate being

-5-

defamed like I was.

Claiming that I was accusing individuals of

conspiring this problem, and that I did not calm down after the
waiver was presented to me, are nothing but bald-faced lies.

I hope

you know that that is libel, and is illegal."
15.
Office.

On November 28, 2007, Stebbins returned to the Treasurer's
He demanded to know who had sent the information about him

to Dr. Holland, saying it contained lies and threatening to file
charges of slander against the Treasurer's Office.
16.

On December 3, 2007, Dr. Holland called Stebbins in to her

office to discuss his conduct upon returning to the Treasurer's
Office, as well as a report of his using profane language with a
Resident Assistant. No charges under the Code of Student Life were
brought against Stebbins as a result of this conduct but, during the
meeting, Stebbins told Dr. Holland of a plan he had for injuring his
father.

As reported by Dr. Holland in a Memo to Stebbins' file,

David indicated he plans to have his father in his room,
at which point he would cut his father's forehead and
take his blood to write a letter of forgiveness. David
indicated he planned to have the occurrence videotaped
and posted on the internet website You Tube.
David
indicated that thinking of the pain his father would be
in and the screams he would produce gave him "chills."
David proceeded to make the physical motions of a person
who had the chills while making this statement.
David
was asked how often he thought of this plan, in which he
replied a response to the effect of "I practically jerk
off to it daily."
This meeting so disturbed Dr. Holland that she spoke with her
supervisor.

They decided to contact Jannarone and Chad Parsons

(Counselor-in-residence at Stebbins' dorm), and meet as a group with
Stebbins to try to help him and also to determine if he had the

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ability to carry out the threat against his father.
17.
discuss

On
"the

disability."

December
amount

4,

of

2007,

support

Stebbins
he

had

met
in

with

place

Jannarone
to

manage

to
his

During this meeting, Dr. Holland called Jannarone to

set up the meeting with Stebbins, Jannarone, and Parsons.

When the

meeting was suggested to Stebbins, he abruptly left Jannarone's
office.
18.
Health

On December 5, 2007, Stebbins went to the Pat Walker

Center

prescriptions.

("Health

Center")

to

obtain

a

renewal

of

some

He had not run out of his medications at this time,

but he was running low.

Because he was half an hour late for his

appointment, staff at the Health Center told him he would have to
reschedule.
Stebbins became angry and extremely distraught.

He went to the

UA Ombuds Office, where he talked to Susan Theiss, whose job it was
to attempt a neutral resolution of conflicts.

During their meeting,

Stebbins told Theiss that if he did not get his medications, "there
could be another Virginia Tech incident."

This was about eight

months after a student at Virginia Tech shot and killed numerous
innocent bystanders, an incident that made national headlines.
Theiss testified that she almost pushed her "panic button" while
talking with Stebbins.
19.

Theiss

walked

with

Stebbins

to

Counseling

and

Psychological Services ("CAPS"), and arranged for him to receive his
prescriptions.

During the walk, Stebbins repeated his assertion

-7-

about "another Virginia Tech incident," and did not appear to be in
control of what he was saying or doing.

Stebbins' conduct so

disturbed Theiss that -- although her work is by nature confidential
-- she filled out an OCCSE Referral Form about the situation because
she considered Stebbins a significant threat.
20.

As a result of Stebbins' statements about a "Virginia Tech

incident," Dr. Holland decided to place him on interim suspension.
Section I.E.2. of the Code of Student Life defines interim suspension
as "an action requiring that a student immediately leave the campus
and University property.

It suspends the student's participation in

any classes or any other University activities."
Before

notifying

Stebbins

of

the

interim

suspension,

Dr.

Holland arranged for his mother, Mrs. Rita Stebbins, to come to
campus to pick him up.

She also arranged for Lt. Vance Rice of UA

Police Department to be present for security purposes.
Dr.

Holland

verbally

informed

suspension and the reasons for it.

Stebbins

of

his

interim

She also documented the interim

suspension in a letter to Stebbins, stating that his "Virginia Tech
incident"

comments

and

his

plan

to

injure

his

father

violated

Sections I.B.1, I.B.8. and I.B.35. of the Code of Student Life.
21.

The terms of the interim suspension were that Stebbins was

not allowed to be in any UA building, dorm, apartment, or campus
event, and must participate in the formal review process under the
Student Judicial System.
22.

Stebbins was so distraught about being suspended that

-8-

before leaving campus he threatened to commit suicide, threatened to
attack Lt. Rice, and stated that a "Virginia Tech incident" was
"still a possibility."

Dr. Holland, Mrs. Stebbins, and Lt. Rice

eventually persuaded Stebbins to check in to a hospital for mental
evaluation.

It appears that the most effective form of persuasion

was Lt. Rice's statement that if Stebbins did not voluntarily check
in, he would be arrested and held so that Lt. Rice could seek an
involuntary commitment.
23.

A formal review of Stebbins' interim suspension took place

on January 10, 2008, before a Board of the All University Judiciary
("AUJ").

Stebbins testified, as did his mother, Parsons, Theiss and

Dr. Holland. Stebbins and the Board members were allowed to question
each witness until they had explored the matter as fully as they
desired.
During his testimony, Stebbins agreed that asking UA to "look
the other way" would not be a reasonable accommodation for statements
such as his "Virginia Tech incident" comments, and acknowledged that
he had come to understand that cursing was not only offensive to some
people, but could be seen as a threat.
24.

The Board found Stebbins responsible for the behaviors

charged, and concluded that interim suspension was the appropriate
response to his "Virginia Tech incident" statements.

It determined

that he would be allowed to re-enroll in Fall, 2008, if he fulfilled
the following conditions:
*

during the period of suspension, he had to obtain mental

-9-

health

care

from

a

psychiatrist,

addressing

the

behaviors

that

resulted in his suspension and his anger management issues; and
*

he had to sign a waiver allowing OCSSE to confirm his

participation in these counseling sessions.
Upon

re-enrollment,

he

participate in counseling.

would

be

required

to

continue

to

The duration of counseling was to be at

the discretion of the mental health professional.
Finally, a one-year conduct probation would be imposed upon reenrollment.
25.

Although

an

avenue

of

administrative

appeal

existed,

Stebbins did not appeal the decision of the AUJ.
26.
campus

During the Spring Semester of 2008, Stebbins lived off

and

sought

mental

health

treatment

from

Licensed Social Worker at Ozark Guidance Center.

Carla

Brown,

a

Brown diagnosed

Stebbins with Asperger's Disorder and Relational Problems Related to
Mental Health Diagnoses.

By the time Stebbins stopped coming to her

for counseling, Brown had added Intermittent Explosive Disorder to
the list of diagnoses.
27.

While Stebbins initially stated to Brown that he would "do

anything to get back into school," Brown testified that Stebbins put
forth only minimal effort during the course of treatment, made only
minimal progress, and left at the end of April, 2008, to move home
to Harrison.

According to Brown, Stebbins wanted others to adjust

their behavior rather than making the effort to change his own, and
tended

to

blame

others

for

his

-10-

problems

rather

than

taking

responsibility for them himself.
of

revenge,

including

on

one

He repeatedly verbalized thoughts
occasion

fantasies

of

kidnapping,

torturing, and killing people who angered him.
28.

Pursuant to releases authorizing her to convey information

about Stebbins' mental health to UA personnel, Brown told Dr. Holland
in early May, 2008, that in her professional opinion it would not be
safe for Stebbins to return to campus.
29.

On

December

21,

2009,

Stebbins

e-mailed

Dr.

Holland,

asking if he could "come back," and, if not, "how to appeal that
decision."

Dr. Holland responded that Stebbins had not met the

conditions of the AUJ for re-enrollment, and that he had forfeited
his right to appeal by not timely submitting an appeal.
30.

On June 13, 2010, Stebbins sent an e-mail to Chancellor

Gearhart, making demands related to re-enrollment.

Judy Schwab,

Associate Vice Chancellor for Administration, received the e-mail on
a website she and the Chancellor both monitor.

Schwab described the

e-mail not only as threatening, but as "off the continuum" of rage
and anger.

Although it was after business hours when she received

the e-mail, Schwab was sufficiently concerned to call Chancellor
Gearhart at home to alert him about it.
The subject line of this e-mail stated "You're a hair's breadth
away from getting sued out your ass."

The content of the e-mail is

instructive in understanding the situation that presented itself at
that time, and is repeated here verbatim:
Listen up, you fucking maggot,

-11-

For the purposes of this email, I am not talking to the
University of Arkansas; I am talking to David Gearhart in
your individual capacity.
Remember, since I am
addressing, not the UA Chancellor, but David Gearhart,
that means that you do not have sovereign immunity.
On January 2008, I was expelled because your fucking
inbred, crackpot employees couldn't be bothered to
accommodate my disability.
They say I "made a terroristic threat." That is fucking
bullshit! I didn't fucking threaten anyone. YOU TOOK IT
THAT WAY!
So, listen up, you fucking retard, you fucking inbred,
cocksucking piece of shit.
I'm not asking you, and I
sure as hell am not asking you kindly: You have sixteen
business hours - you have until 5PM this Tuesday evening
- to do the following:
1.
Override the student accounts office (that is why I
am talking to you, because, if anyone has the authority
to do that, it's you).
2.
Remove my suspension. Make it so that, officially,
I was never kicked out against my will in the first
place; I withdrew on my own.
3.
Allow me to re-admit myself to the University of
Arkansas on the spot, no applications, no fucking
interviews, no jack shit.
4.
Send me an email telling me that the above three
have been accomplished.
All of them must be completed by Tuesday, June 15, 2010
at 5:00PM CT. If they are not, I will sue you in your
individual capacity and collect $50,000 in punitive
damages from you.
Thank you, and go to hell.
Sincerely,
David Stebbins
Harrison, AR 72601
31.

On June 14, 2010, a Threat Assessment Team was convened

to determine how to respond to this e-mail.

It was determined that

Stebbins should be placed under a criminal trespass warning for a

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year, during which he would not be allowed on UA property.

Lt. Rice

advised Stebbins by e-mail that he was not to make direct contact
with any member of administration; that he should contact Lt. Rice
and make arrangements if he need to meet with anyone at UA;

and that

his status could be re-evaluated in a year.
32.

Stebbins testified that UA should have accommodated him

with access to his medications and "patience."

He contended that UA

should have given him the benefit of the doubt, as long as it was
possible that he did not mean to carry out his "Virginia Tech
incident" threat.
33.

The evidence supports a finding that Dr. Holland and the

AUJ Board reasonably believed that Stebbins' threats of violence had
to be taken seriously. The Vista Health records available to the CEA
included a note that Mrs. Stebbins had told Stebbins' counselor that
Stebbins could be both verbally and physically aggressive.

Hudson,

Pepper and Theiss had made written reports about Stebbins' disturbing
behavior.

Dr. Holland had access to this information when she heard

Stebbins verbalize his gruesome plan regarding his father, and his
"Virginia Tech incident" comments.
CONCLUSIONS OF LAW
34.

UA

contends

that

Stebbins'

case

should

be

dismissed

because he failed to exhaust administrative remedies when he did not
appeal the decision of the AUJ.
without merit.

The Court finds this contention

UA did not plead failure to exhaust as an affirmative

defense in its Answer.

Generally speaking, "'failure to plead an

-13-

affirmative defense results in a waiver of that defense'." Sherman
v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008).

While

the Eighth Circuit has recognized that a trial court may exercise
discretion to allow the defense to be untimely pled if it does not
result in unfair surprise, UA never sought to amend its Answer, nor
was the matter brought to the Court's attention until shortly before
trial.

Under these circumstances, the Court finds that UA has waived

this defense.
35.

To make out a prima facie case on his Rehabilitation Act

claim, Stebbins must show the following:
(a)

that he is a person with a disability, as defined by

statute;
(b)

that

he

is

otherwise

qualified

for

the

benefit

in

question, enrollment at UA;
(c)

that

he

was

excluded

from

the

benefit

due

to

discrimination based on his disability; and
(d)

that the program or activity from which he was excluded

receives federal financial assistance.
Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).
36.

"Disability," for purposes of the Rehabilitation Act, has

the meaning given in 42 U.S.C. § 12102.
includes

a

person

with

a

physical

or

29 U.S.C. § 705.
mental

impairment

It
that

substantially limits one or more major life activities, a person with
a record of such impairment, and a person regarded as having such an
impairment.

Major

life

activities

-14-

include

learning,

thinking,

communicating, and working.

Defendant admitted, in Responses to

Requests for Admission, that Stebbins was eligible for accommodations
based on the disability of Asperger's Syndrome.

Thus, element (a)

is not in dispute.
37.

Stebbins

presented

a

webshot

of

a

UA

description

of

available financial aid including statements relating to application
for Federal Student Aid, and this was admitted without objection.
It appears, therefore, that element (d) is also undisputed.
38.

A person is "otherwise qualified" under the Rehabilitation

Act if, with reasonable accommodations, he "can perform the essential
functions of the position in question without endangering the health
and safety of the individual or others."
District,

25

F.3d

667,

669

(8th

Cir.

Wood v. Omaha School

1994).

Failing

to

make

reasonable accommodations is a form of disability discrimination.
Peebles v. Potter, 354 F.3d 761, 765-67 (8th Cir. 2004).
39.
requested

Stebbins

has

reasonable

the

initial

accommodations

burden
from

of
UA,

proving
and

accommodations would render him "otherwise qualified."

that

that

he

those

Mershon v.

St. Louis University, 442 F.3d 1069, 1077 (8th Cir. 2006).

He need

not have used any particular words to request accommodations, but
must have said enough to invoke the "interactive process" whereby he
and UA would have worked out what accommodations were appropriate for
what disability.

Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir.

2002).

-15-

40.

Stebbins failed to establish that he requested reasonable

accommodations applicable to the reason for his suspension.
evidence

shows

that

when

he

registered

with

the

CEA as

The

having

Asperger's Syndrome, the only accommodation he mentioned was "help
negotiating my tactlessness w/my professors."

His statements that

if he did not get his medications refilled there could be another
"Virginia Tech incident" are on a different order of magnitude than
mere tactlessness.

They could reasonably be interpreted as threats

to the safety of the entire UA community, and in fact were so
perceived.
Moreover, Stebbins failed to show that the accommodations he
requested after having made the "Virginia Tech incident" comments -patience and understanding, giving him the benefit of the doubt, not
taking his words as threatening unless he really meant them that way,
giving him a second chance -- were reasonable.
Jannarone

testified

that

it

would

be

unreasonable

to

accommodate behavior that rises to the level of a violation of the
Code of Student Life, such as threats and profanity.

The legal

touchstone for reasonable accommodations supports this position.

An

accommodation is not reasonable if it imposes undue financial and
administrative burdens on an institution.

Kohl by Kohl v. Woodhaven

Learning Center, 865 F.2d 930, 936 (8th Cir. 1989).

For UA officials

to have adopted a "wait and see" attitude in the face of Stebbins'
"Virginia Tech incident" comments would have burdened UA with the
risk of all the financial, administrative, and human toll that

-16-

another Virginia Tech incident would have carried with it had they
made the wrong decision.

It cannot be seriously argued that such

would be reasonable.
41.

Stebbins also failed to establish that he was excluded

from the benefit of UA enrollment due to discrimination based on his
disability.

The evidence shows that accommodations appropriate to

Asperger's Syndrome were afforded Stebbins, and that he was not
suspended for "tactlessness" or the social awkwardness and challenges
with social interaction that characterize Asperger's Syndrome.

He

was suspended for making threats, which is not a characteristic of
Asperger's Syndrome.
42.

Not only did Stebbins fail to establish a prima facie case

of discrimination, UA succeeded in establishing its affirmative
defense

that

Stebbins

constituted

a

direct

threat

community, as to which it had the burden of proof.
Stores, Inc., 477 F.3d 561, 571 (8th Cir. 2007).

to

the

UA

EEOC v. Wal-Mart

The criteria to be

used in assessing whether a student presents a direct threat are
drawn from School Board of Nassau County, Fla. v. Arline, 480 U.S.
273, 287 (1987), wherein the Court said that the Rehabilitation Act
has goals of protecting handicapped individuals from discrimination
"while giving appropriate weight to such legitimate concerns of
grantees as avoiding exposing others to significant health and safety
risks."
Factors to consider in the evaluation of risk under Arline
include:

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(a)

the nature of the risk;

(b)

the duration of the risk;

(c)

the severity of the risk; and

(d)

the probability of the risk.

43.

When the Arline factors are applied to the facts of this

case, they lead ineluctably to the conclusion that UA officials
properly evaluated Stebbins as a direct threat to UA on December 5,
2007, when he made repeated statements that if he did not get his
medications refilled there could be another "Virginia Tech incident."
(a)

The nature of the risk:

Stebbins' statements about a "Virginia Tech incident" went far
beyond the tactlessness and "smarting off" he noted when registering
with the CEA.

Only a few months before, a student had shot and

killed a large number of people on the campus of Virginia Tech, a
highly publicized event that shocked the nation, and especially those
on college campuses.

UA was not required to prove that a threat was

actually made and intended by Stebbins, but rather that those who
heard his statements reasonably believed that a threat was made.
Mershon, supra, 442 F.3d at 1075.

Based on Stebbins' history at UA,

Dr. Holland and the AJU could reasonably have believed that Stebbins
might do the same thing.
(b)

The duration of the risk:

By December 5, 2007, Stebbins had been a student at UA for
about

four

months.

In

that

short

period

of

time,

he

had

had

significant difficulties in his interactions with dorm staff and

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Treasurer's Office staff.
suspend

Stebbins,

knew

Dr. Holland, who made the decision to
about

these

difficulties,

and

it

was

reasonable for her to believe that the December 5, 2007, incident was
not an isolated one, but rather a pattern that had existed from
Stebbins'

enrollment

significant

and

intervention.

was

not

Thus,

likely

the

to

duration

improve
of

the

without
risk

was

indefinite.
(c)

The severity of the risk:

The

risk

in

this

case

was

severe.

Stebbins'

statements

implicated the safety -- indeed, the lives -- of students, faculty,
and

staff

at

UA.

No

reasonable

administrator

could

afford

to

overlook them.
(d)

The probability of the risk:

Given Stebbins' history since matriculation -- reflecting a
pattern

of

repeatedly

becoming

enraged

over

what

others

would

perceive merely as minor annoyances -- it was reasonable for Dr.
Holland, and later the AUJ, to believe that there was a significant
probability that Stebbins would carry out his threats of another
"Virginia Tech incident."
44.

Finally, the Court is not persuaded that there was any

violation of law when UA decided not to allow Stebbins to re-enroll
following his profanity-filled e-mail to Chancellor Gearhart. In
addition to the fact that Stebbins still had not satisfied the
conditions of re-enrollment established by the AUJ, there was the
threatening tone of the e-mail itself.

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While Stebbins argued at trial that the only threat to be found
in the e-mail was a threat to sue Chancellor Gearhart, the Court does
not agree.
*

The e-mail is extremely profane, and Stebbins admitted at

the AUJ hearing -- long before he sent the e-mail -- that he knew
profanity could be perceived as threatening.
*

The tone of the e-mail is intensely malicious.

*

The e-mail is couched in terms of demands that must be met

within hours.
*

The threat to sue is obviously coercive in nature.

When viewed in light of Stebbins' past history at UA, and his
mental health treatment records, the e-mail was clearly threatening,
and the Court finds that it was reasonable for UA to conclude that
Stebbins should not be allowed back in school, or even on campus.
45.

Having concluded that Dr. Holland's interim suspension was

reasonable; that the interim suspension of the AUJ was reasonable;
and that the criminal trespass warning in 2010 was reasonable, it
follows that Stebbins' claim that UA violated the Rehabilitation Act
is without merit.

There is, therefore, no need to address the issues

of damages or injunctive relief.

His claims will be denied and

dismissed with prejudice, and a separate judgement to this effect
will be entered contemporaneously herewith.
IT IS SO ORDERED, this 28th day of December, 2012.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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