Al-Turk v. University of Nebraska et al

Filing 19

MEMORANDUM AND ORDER denying 2 Motion for Temporary Restraining Order. This case is referred to Magistrate Judge Zwart for expedited progression. Ordered by Senior Judge Richard G. Kopf. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAYTH MOHAMMAD AL-TURK,
Plaintiff,
v.
UNIVERSITY OF NEBRASKA,
BOARD OF REGENTS OF THE
UNIVERSITY OF NEBRASKA,
UNIVERSITY OF NEBRASKA
COLLEGE OF LAW, SUSAN
POSER, Dean of the University of
Nebraska, College of Law, JOHN
LENICH, Honor Code Prosecutor for
the College of Law, BRIAN
LEPARD, Individually, and CRAIG
R. LAWSON, Honor Committee
Chairperson,
Defendants.

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8:13CV74

MEMORANDUM AND ORDER

Today, I held a hearing on Plaintiff’s request for a temporary restraining order.
I took judicial notice of the evidence attached to the indexes submitted by the parties.
As is my practice on requests for temporary restraining orders, I did not take live
testimony. I also heard the arguments of counsel.1
I now deny the request for a temporary restraining order. Briefly, the reasons
for my decision are set forth below.

1

The lawyers did a great job. In particular, I compliment counsel for Plaintiff.

I. BACKGROUND
Plaintiff has filed a Complaint seeking damages and injunctive relief stemming
from alleged violations of the Due Process Clause and the Equal Protection Clauses
of the 14th Amendment to the U.S. Constitution, the equivalent clauses of the
Nebraska State Constitution, and 42 U.S.C. § 1983 and 42 U.S.C. § 2000d. In support
of his motion, Plaintiff has submitted an Index of Evidence containing his affidavit
setting forth the basis of his complaints, along with the affidavit of his attorney,
Robert A. Mooney.
Plaintiff’s affidavit submitted in support of his Motion for Temporary
Restraining Order establishes that he is a U.S. Citizen and he is Arab and Muslim.
Plaintiff’s affidavit further establishes that he is a resident of Omaha, Nebraska and
until February 28, 2013 was a student studying law at the University of Nebraska
College of Law. Plaintiff was dismissed from the College of Law after hearing by an
Honor Committee established under an Honor Code covering conduct and discipline
of law students. Plaintiff’s dismissal by the Committee was affirmed by the Dean of
the College of Law on February 28, 2013.
Plaintiff’s affidavit further establishes that (1) he was midway through the
spring 2013 semester when he was dismissed; (2) he had paid the tuition for the spring
2013 semester; (3) he has incurred substantial student debt to attend the law college;
(4) he had completed 81 hours towards his Juris Doctorate Degree and was within 30
hours of completing his degree when dismissed; (5) he had progressed partially
through the spring semester and will lose the benefit of his progress this semester if
not allowed to continue his studies pending this litigation; and, (6) if Plaintiff is not
enrolled full time as a student, his accrued student loan debt will become immediately
due, and will begin to accrue substantial interest.
Evidence from Defendants showed that Plaintiff had been readmitted to law
school on probation in August of 2012 after previously failing to keep up his grades.
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In the fall of 2012, other evidence showed that Plaintiff copied almost verbatim and
without attribution materials from two texts and submitted that information as part of
his class work. There is a strong showing that Plaintiff was guilty of plagiarism. The
evidence also tends to show that Plaintiff may have lied to his professor about the
paper that contained the plagiarized material, although that evidence is less strong.
The evidence also shows that the Honor Code provides procedural protections
that are entirely consistent with the law. However, there are two questions for which
the answers are not so clear.
There is a question about whether Defendants followed the Honor Code in one
particular regarding an incident where the professor who submitted the plagiarism
complaint conferred with Plaintiff without notifying Plaintiff that the complaint had
been made by that professor. The recorded recollection of the professor was later used
as evidence by the Honor Code prosecutor. When questioned by the prosecutor
during an investigation, the Honor Code requires that the student have notice of the
charges and it allows a student to remain silent. Essentially, Plaintiff claims that the
professor was acting as the hidden hand of the prosecutor.
There is also a question about whether white students have been penalized less
harshly than minority students such as Plaintiff who have plagiarized material. In that
regard, there is a difficult subsidiary question about whether those other students were
similarly situated to Plaintiff.
II. ANALYSIS
In Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir. 1981),
the court, sitting en banc, clarified the standard district courts should apply when
considering a motion for preliminary injunctive relief:

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(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict
on other parties litigant; (3) the probability that movant will succeed on
the merits; and (4) the public interest.
Dataphase, 640 F.2d at 114. “No single factor in itself is dispositive; rather, each
factor must be considered to determine whether the balance of equities weighs toward
granting the injunction.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th
Cir. 1998).
At base, the question is whether the balance of equities so favors the
movant that justice requires the court to intervene to preserve the status
quo until the merits are determined. . . .
....
[W]here the balance of other factors tips decidedly toward movant a
preliminary injunction may issue if movant has raised questions so
serious and difficult as to call for more deliberate investigation.
Dataphase, 640 F.2d at 113.
I believe that the Dataphase case must be applied to temporary restraining order
situations. Cf. Baker Elec. Co-Op, Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994).
When I do, the balance of the equities do not weigh in favor of disturbing the status
quo.2
First, the threat of irreparable harm to Plaintiff is real but limited. Time lost this
semester can never be recovered. It would also be nearly impossible to value that loss
of time. Otherwise, Plaintiff could be compensated for any losses he may incur by the
payment of money. The first factor favors Plaintiff but only minimally so.
2

To be clear, nothing I have written in this rapidly prepared Memorandum and
Order precludes Plaintiff from ultimately prevailing.
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Second, the state of Plaintiff’s harm when balanced against Defendants’ slight
institutional interests is at equipoise. In other words, this factor does not favor either
party.
Third, at this early stage of the proceedings, it is not “probable” that Plaintiff
will prevail on the merits and this factor weighs in favor of Defendants. It is hard to
believe that Defendants’ discriminated against Plaintiff because of his protected status.
The uncontradicted evidence shows that, after failing to maintain his grades, Plaintiff
was readmitted to the law school on probation about two months before this dispute
first arose. In other words, the leniency with which Plaintiff was treated in August
of 2012 strongly rebuts any suggestion that the final dismissal decision in February
of 2013 was driven by religious, racial or ethnic animus. Moreover, even if the Honor
Code is construed to have prohibited the prosecutor from using the recorded
recollection of the complaining professor about a conversation with Plaintiff held after
the charge was made but before Plaintiff knew of the charge, in every other respect
Plaintiff was provided with all the process he was due. Just as no trial is perfect, no
Honor Code prosecution is likely to be perfect. Simply put, the Due Process Clause
does not require perfection.
Fourth, the public interest strongly favors the Defendants. Ethical law students
are a precondition to having an ethical legal profession. In turn, an ethical legal
profession is crucial to Article III of the Constitution relating to the third branch of
government, the judiciary. Swift enforcement of ethical norms for law students is
very important to the public, just as swift enforcement of ethical norms for lawyers
is very important to the public. After all, we are talking about the public’s confidence
in the rule of law.
III. CONCLUSION
The motion for a temporary restraining order will be denied. However, I want
this case expedited for a preliminary injunction hearing and a trial. See Federal Rule
5

of Civil Procedure 65(a)(2). I would think we could get this case tried to a jury and
equitable issues resolved by July 15, 2013 or before. Thus, if Plaintiff prevails, he
could start school again in the fall. I therefore refer this matter to Magistrate Judge
Zwart with the request that she rapidly progress this case.
IT IS ORDERED that:
1.

The Motion for Temporary Restraining Order (filing no. 2) is denied.

2.

This case is referred to Magistrate Judge Zwart for expedited
progression.

DATED this 12th day of March, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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