CLEMMONS v. GUILFORD TECHNICAL COMMUNITY COLLEGE et al
Filing
47
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 07/21/2017, that Clemmons's motion for summary judgment (Doc. 30 ) is DENIED, and her motion to strike (Doc. 38 ) is DENIED AS MOOT. FURTHER ORDERED that Defendants' mo tion for summary judgment (Doc. 34 ) is GRANTED with respect to Clemmons's federal claims, which are DISMISSED WITH PREJUDICE, and otherwise DENIED as to Clemmons's remaining State-law claims, which are REMANDED to the Superior Court of North Carolina for Durham County for further consideration. The court expresses no opinion whether Clemmons's State-law claims are barred in whole or in part as a result of this court's disposition of her federal claims. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BAILEY CLEMMONS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
GUILFORD TECHNICAL COMMUNITY
COLLEGE; QUENTIN JOHNSON,
1:16CV482
Defendants.
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This action arises out of Plaintiff’s long-term suspension
from classes at a community college for alleged violations of the
student code of conduct.
competing
motions
for
Before the court are the parties’
summary
judgment
(Docs.
30,
34)
and
Plaintiff’s motion to strike evidence outside the administrative
record (Doc. 38).
For the reasons that follow, the court will
deny Plaintiff’s motions, grant Defendants’ motion for summary
judgment on Plaintiff’s federal claims, and remand the action to
State court for further consideration of Plaintiff’s State-law
claims under the North Carolina Constitution and North Carolina’s
Administrative Procedure Act.
I.
BACKGROUND
Plaintiff Bailey Clemmons enrolled as a student in the dental
assisting program for the 2015 academic year at Guilford Technical
Community
College
(“GTCC”),
a
public
community
college
in
Jamestown, North Carolina.
¶ 3.)
(Doc. 11 ¶ 3; Doc. 31 ¶ 3; Doc. 35
On September 15, 2015, she was walking her dog, Penelope,
near her home in Durham, when the pet was tragically struck and
killed by a car.
(Doc. 4 ¶ 6; Doc. 11 ¶ 6; Doc. 31 ¶ 6.)
Clemmons
sent a text message to her professor, Sherry Shook, explaining:
“Good morning, Mrs. Shook.
today.
This is Bailey.
I won’t be in class
My sister died in a car accident this morning.” 1
¶ 8(a); Doc. 35-6 at 3, 8.)
(Doc. 35
When Professor Shook contacted
Clemmons later that evening, Clemmons thanked the teacher for her
consolation and responded, “It is not easy.
at home.”
(Doc. 35-6 at 3.)
classes.
(Id. at 4.)
Life is different now
Clemmons missed the next two days of
As gestures of sympathy, Clemmons’s peers
purchased a card and collected money – described as “close to $200”
– in honor of her sister.
(Id. at 5; Doc. 35-13 at 6-7; Doc. 35-
14 at 27.)
Mrs. Snider, the GTCC dental assisting department chair, also
emailed her condolences as to Clemmons’s “little sister” and
assured
Clemmons
that
“[t]his
certainly
qualifies
as
an
extenuating circumstance, so you will not be penalized for absences
during this time. . . . Stay with your family.”
(Doc. 35-6 at 7.)
The next day, Clemmons informed Mrs. Snider that she was in the
process of making funeral arrangements.
1
(Id.)
Clemmons sent a similar message to a classmate.
2
Clemmons also
(Doc. 35 ¶ 8(a).)
reported to her instructors that there was going to be a memorial
service for her sister at Kingdom Hall on September 18, 2015, and
that she would be taking a few days off for “mental mollification.”
(Id. at 3; Doc. 35 ¶ 8(b).)
Clemmons further explained that,
because the service would be shortly thereafter, she would be
wearing her black dress to class.
4.)
(Doc. 35 ¶ 8(c); Doc. 35-6 at
Clemmons also spoke to Violeta Herrera, an administrative
assistant in the dental department, and informed her that she had
two sisters, Madison and Penelope, and that Penelope was the sister
who died.
(Doc. 35-6 at 5.)
Because of her absences, Clemmons was reaching the maximum
number allowable without incurring an academic penalty.
multiple
occasions,
Professor
Shook
and
Dr.
Richard
(Id.)
On
Foster,
director of the dental program, inquired about an obituary and
requested that Clemmons bring one to GTCC officials so that her
absences could be excused.
to do so.
(Id.; Doc. 35 ¶ 8.)
(Doc. 35-6 at 5.)
Clemmons agreed
About ten days into the charade,
however, GTCC faculty discovered through Facebook that Penelope
was not Clemmons’s sister, but her dog.
(Doc. 35 ¶ 8k.)
Dr.
Foster then filed a formal complaint, charging that Clemmons had
violated GTCC’s Student Conduct Policy.
(Id. ¶ 6; Doc. 35-9 at 2-
3).
Students enrolled at GTCC are provided and required to comply
with several policies, guidelines, and regulations (Doc. 35—4 at
3
2), including GTCC’s Student Conduct Policy (also referred to as
the “Student Code of Conduct”).
(Doc. 35 ¶ 9; Doc. 36 ¶ 4). 2
That
policy provides:
Students may not display conduct on Guilford Technical
Community College premises or at GTCC sponsored events
that adversely affects the college's educational
objectives, is illega1, or is contrary to the rules and
regulations of the college. Students who display such
conduct shall be subject to disciplinary action under
the college's disciplinary policy. The Student Code of
Conduct may also apply to off-campus incidents or
behaviors when college administrators determine that
off-campus conduct affects a substantial interest of the
college.
The student has the right to appeal
disciplinary action. A full text of the Student Policy
and disciplinary procedures is available in the Medlin
Campus Center (Jamestown Campus), Suite 320.
Conduct prohibited by this rule shall be determined by
the President, consistent with this definition.
(Doc. 35-9 at 2.)
The policy goes on to set out prohibited conduct
by means of an illustrative list - which expressly “does not
include all conduct that could be prohibited” – and includes
2
The GTCC Student Handbook governs all GTCC students. Dental assisting
students also have policies and rules for their specific program: GTCC
Dental Assisting Dental Hygiene Student Handbook (Doc. 35-1); GTCC Dental
Assisting Clinic Manual (Doc. 35-2); and GTCC Student Orientation
Handbook: Dental Assisting and Dental Hygiene Programs (Doc. 35-3).
(Doc. 35 ¶ 4.)
As with the Student Conduct Policy, these policies
require students to conduct themselves in a professional manner, which
includes exercising honesty, integrity, and sound ethical judgment.
(Doc. 35-1 at 2-5 (e.g., prohibiting “fabrication and falsification” in
an academic exercise); Doc. 35-2 at 2-4 (“[p]roviding information one
knows to be false to a College official, hearing officer or judicial
body in connection with any investigation into any actual or potential
academic honesty policy violation”), 7-8 (requiring honest communication
with faculty); Doc. 35-3 at 3 (“Inherent to the ethical and professional
expectations for students is the expectation that students will
consistently practice honesty, genuineness, and authenticity in all of
their academic endeavors and pursuits while enrolled at GTCC.”).)
4
“[f]orgery, alteration, or misuse of college documents, records,
or instruments of identification providing false information to
the college”; “[a]buse of the Student Code of Conduct, including
but not limited to . . . falsifying, distorting or misrepresenting
before a Disciplinary Review Committee”; and “[b]ehavior that
adversely impacts the learning environment adversely affecting the
college community’s pursuit of its educational purposes.”
(Id. at
2-3.)
On October 2, Michael Hughes, Chief Disciplinary Officer at
GTCC, informed Clemmons of the claims against her and that he would
be investigating.
(Doc. 35 ¶¶ 6-7; Doc. 35-7.)
Hughes explained
that Clemmons was alleged to have violated two provisions of the
GTCC Student Conduct Policy: (1) forgery, alteration, or misuse of
college
documents,
records,
or
instruments
of
identification
providing false information to the college, and (2) violation of
local, state, or federal criminal law on college premises.
35-7 at 3.)
(Doc.
Clemmons emailed Hughes on October 6, writing that
she took full responsibility for the miscommunication.
¶ 11; Doc. 31-2.)
(Doc. 31
Hughes and Clemmons met on October 7, when
Hughes informed Clemmons that she was accused of providing false
information to GTCC, stating falsely that her sister had died in
a car accident.
(Doc. 35 ¶ 7.)
After the meeting, on October 23,
Hughes determined that Clemmons had violated the Student Conduct
Policy by providing false information to a college official and
5
placed her on restricted probation for four semesters.
(Id. ¶ 12;
Doc. 35-10.)
On October 26, Clemmons appealed Hughes’ decision to the GTCC
Review Committee.
(Doc. 31 ¶ 16.)
set for November 3.
(Id.)
A hearing for her appeal was
Before the hearing, Hughes emailed
Clemmons to inform her of the witnesses that GTCC officials would
call and information concerning her rights during the hearing.
(Doc. 35-12 at 3-5.)
These rights included the right to have
counsel present, the right to call witnesses and present evidence,
and the right to testify or refuse to testify.
(Id.)
Hughes’
email noted, however, that if Clemmons elected to have counsel
present
at
committee.
Review
the
hearing,
(Id. at 3.)
Committee
would
her
counsel
could
not
address
the
Hughes’s email also explained that the
determine
appropriate
sanctions,
would not be limited to those imposed by Hughes.
which
(Id. at 4.)
Clemmons also had the right to appeal the Review Committee’s
decision, but only for two grounds: (1) the severity of the
penalty, or (2) an alleged violation of GTCC’s procedures during
the hearing or investigation.
(Doc. 35-17 at 8.)
At the hearing, faculty and students testified that Clemmons
told them that her ten-year-old sister had been killed.
Faculty
witnesses also expressed concerns about whether Clemmons could be
trusted, especially during clinic rotations.
32,
44-45;
Doc.
35-14
at
32-34.)
6
At
the
(Doc. 35-13 at 31hearing,
Clemmons
discussed the service held for her dog at a local place of worship.
(Doc. 35-15 at 5.) But on November 9, when asked about the service,
Clemmons
stated
that
there
was
no
service;
individuals had convened to comfort her.
Clemmons
later
miscommunication.
argued
(Id.)
that
her
a
few
(Doc. 35-16 at 2.)
hearing
testimony
was
a
The Review Committee voted to suspend
Clemmons until the fall 2016 semester.
35-17 at 2.)
instead,
(Doc. 35 ¶¶ 21, 23; Doc.
The Review Committee also mandated that Clemmons
complete ethics training before re-enrolling.
(Doc. 35-17 at 2.)
Clemmons again appealed her decision to Dr. Quentin Johnson,
Vice President of Student Support Services.
¶ 3; Doc. 35 ¶¶ 23-24.)
(Doc. 4 ¶ 17; Doc. 11
Johnson affirmed the Review Committee’s
decision, finding no violation of GTCC’s procedures during the
hearing or investigation and concluding that the sanction imposed
was
appropriate.
(Doc.
35-18
at
2.)
Because
Clemmons
was
suspended and could not complete her coursework, GTCC gave her
failing grades for her incomplete courses.
(Doc. 31 ¶ 22.)
On February 25, 2016, Clemmons filed this action, as amended,
against GTCC and Johnson in Durham County Superior Court (Doc. 11), and Defendants timely removed the case to this court (Doc. 1).
Clemmons
seeks
reversal
and
expungement
of
her
long-term
suspension, alteration of her failing grades to incomplete grades,
a refund of any tuition paid to GTCC by or on her behalf, an
injunction, and attorneys’ fees.
Following discovery, the parties
7
filed competing motions for summary judgment.
(Docs. 30, 34.)
Clemmons later moved to strike certain evidence GTCC submitted,
arguing that it is inadmissible because it was not a part of GTCC’s
administrative record.
II.
(Doc. 38.)
ANALYSIS
Summary
judgment
is
appropriate
where
the
pleadings,
affidavits, and other proper discovery materials demonstrate that
no genuine dispute as to any material fact exists and the moving
party is entitled to judgment as a matter of law.
Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986).
The
party seeking summary judgment bears the burden of initially
demonstrating the absence of a genuine dispute as to any material
fact.
Celotex, 477 U.S. at 323.
If this burden is met, the
nonmoving party must then affirmatively demonstrate a genuine
dispute of material fact which requires trial.
Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
There is no issue for trial unless sufficient evidence favoring
the nonmoving party exists for a factfinder to return a verdict
for that party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50, 257 (1986).
A.
Federal Claims
1.
Claims against GTCC
GTCC moves to dismiss Clemmons’s federal claims against it on
the grounds it is not a “person” under 42 U.S.C. § 1983 and is
8
otherwise immune from suit under the Eleventh Amendment.
Clemmons
argues that GTCC waived its immunity under the Eleventh Amendment
by removing the action to federal court.
Title 42, Section 1983 provides a right of action against
“[e]very
person
who,
under
color
of
any
statute,
ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws.”
GTCC is State-funded.
N.C. Gen. Stat. § 115D-31; Miller
v. Guilford Tech. Cmty. Coll., No. 2:96CV00329, 1998 U.S. Dist.
LEXIS 15153, at *6 (M.D.N.C. June 15, 1998). State-funded colleges
and universities are alter egos of the State.
Huang v. Board of
Governors of the Univ. of N.C., 902 F.2d 1134, 1138 (4th Cir.
1990); Miller, 1998 U.S. Dist. LEXIS 15153, at *6.
Because GTCC
is an agency of the State, it is not a “person” within the ambit
of § 1983, and Clemmons’s constitutional claim against GTCC is
therefore not cognizable.
Will v. Michigan Dep't of State Police,
491 U.S. 58, 64 (1989) (“a State is not a person within the meaning
of § 1983”); Mann v. Winston Salem State Univ., No. 1:14CV1054,
2015 WL 5336146, at *4 (M.D.N.C. Sept. 14, 2015) (“Because WSSU is
an agency of the State of North Carolina, it is not a ‘person’
within the meaning of § 1983 and thus does not fall within the
purview of § 1983.”); Googerdy v. N. Carolina Agr. & Tech. State
9
Univ.,
386
F.
plaintiff’s
Supp.
§ 1983
2d
claim
618,
625
for
(M.D.N.C.
monetary
2005)
and
(dismissing
injunctive
relief
because State university is not a “person” under 1983).
Clemmons’s argument that GTCC waived its immunity under the
Eleventh Amendment by removing the action to federal court is thus
immaterial
as
to
GTCC.
Will,
491
U.S.
at
66-67
(rejecting
proposition that the scope of sovereign immunity under the Eleventh
Amendment and the scope of § 1983 are not separate issues –
“[c]ertainly
they
are”).
In
any
event,
the
Supreme
Court
foreclosed this argument in Lapides v. Bd. of Regents of Univ.
Sys. of Georgia, reiterating that a § 1983 claim is not valid where
the defendant – there a State; here, an alter-ego of a State – is
not a “person” under the statute, even if the defendant removed
the action to federal court.
535 U.S. 613, 617 (2002).
For these reasons, Clemmons’s § 1983 claim against GTCC will
be dismissed.
2.
Claims against Johnson
Johnson is sued only in his official capacity as GTCC’s Vice
President of Student Support Services.
While Johnson is “person”
within common parlance, “a suit against a state official in his or
her official capacity is not a suit against the official but rather
is a suit against the official's office.”
Will, 491 U.S. at 71.
Thus, Clemmons’s claim for money damages against Johnson in his
official capacity fails for the same reason as above: he is not a
10
“person” within the meaning of § 1983.
Id.
(“We hold that neither
a State nor its officials acting in their official capacities are
‘persons’ under § 1983.”).
Clemmons’s § 1983 claim for monetary
relief against Johnson will be dismissed.
Clemmons’s
claims
against
Johnson
seeking
prospective
injunctive relief are cognizable, however, as such claims are
treated differently under § 1983.
Id. at 65 n.10 (“Of course a
state official in his or her official capacity, when sued for
injunctive relief, would be a person under § 1983 because officialcapacity actions for prospective relief are not treated as actions
against the State.”) (citations omitted); Kentucky v. Graham, 473
U.S.
159,
167
n.14
(1985)
(“official-capacity
actions
for
prospective relief are not treated as actions against the State”).
The court will address each federal claim advanced against
Johnson in turn.
a.
First Amendment
Clemmons contends that she is entitled to summary judgment
because GTCC imposed discipline against her based on her speech
and therefore violated her rights under the First Amendment to the
United States Constitution.
(Doc. 4 at 4; Doc. 33 at 6-8.)
Clemmons maintains that her speech cannot be regulated by GTCC, as
it was an “expression of grief” and did not affect the rights of
other students.
(Doc. 33 at 7.)
According to Johnson, Clemmons’s
speech falls outside of the protections of the First Amendment
11
because it was false, entitling him to summary judgment.
at
6-10.)
Johnson
disciplining
rights.
also
Clemmons
and
argues
did
not
that
he
violate
was
her
(Doc. 40
justified
in
constitutional
(Id. at 10-12.)
When assessing Clemmons’s First Amendment claim, the court
must
conduct
a
three-part
analysis.
First,
the
court
determine whether Clemmons engaged in protected speech.
it must identify the nature of the forum.
must
Second,
Third, it must decide
whether the justifications for the exclusion satisfy the requisite
standard for that forum.
Am. Civil Liberties Union v. Mote, 423
F.3d 438, 442-43 (4th Cir. 2005) (citations omitted); see Chandler
v. Forsyth Tech. Cmty. Coll., No. 1:15CV337, 2016 WL 4435227, at
*8 (M.D.N.C. Aug. 19, 2016).
Because of the Supreme Court’s plurality opinion in United
States v. Alvarez, the court will assume without deciding that
Clemmons’s false statements qualified as protected speech.
567
U.S. 709 (2012); Moore-King v. Cty. of Chesterfield, Va., 708 F.3d
560, 567 (4th Cir. 2013) (“[W]e cannot agree . . . that inherently
deceptive speech necessarily lacks First Amendment protection.”)
In
addition,
in
consensus
with
courts
assessing
similar
forums, the court concludes (and Clemmons has not argued otherwise)
that
GTCC
is
a
non-public
forum.
Hazelwood
Sch.
Dist.
v.
Kuhlmeier, 484 U.S. 260, 267 (1988); Am. Civil Liberties Union,
423 F.3d at 444 (noting that, like here, “[t]here [was] nothing in
12
the record to indicate that . . . the campus was anything but a
non-public forum for members of the public not associated with the
university”); Chandler, 2016 WL 4435227, at *8 (finding Forsyth
Technical Community College to be a non-public forum).
As a non-
public forum, GTTC is thus entitled to “make reasonable, viewpoint
neutral
restrictions
on
speech
in
the
educational
an
assessment
context.”
Chandler, 2016 WL 4435227, at *8.
This
turns
the
inquiry
to
justifications for disciplining Clemmons.
of
Defendants’
In other words, the
question is “whether [the First] Amendment permits the particular
regulation of speech at issue here.”
Williams–Yulee v. Florida
Bar, 135 S. Ct. 1656, 1667, 191 L. Ed. 2d 570 (2015).
As Clemmons
properly notes, “students do not ‘shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate.’”
Morse v. Frederick, 551 U.S. 393, 396 (2007) (quoting Tinker v.
Des Moines Independent Community School Dist., 393 U.S. 503, 506
(1969)).
But “the constitutional rights of students in public
school are not automatically coextensive with the rights of adults
in other settings.”
U.S.
675,
682
Bethel School Dist. No. 403 v. Fraser, 478
(1986).
Indeed,
First
Amendment
rights
are
“circumscribed in light of the special characteristics of the
school environment.”
Morse, 551 U.S. at 405 (internal citation
and quotations omitted).
Unlike regulations that stem from “an
abstract desire to avoid controversy,” a school can properly
13
regulate speech that has a negative effect on the school’s mission.
Id. at 408-09; see also, Bell v. Itawamba Cty. Sch. Bd., 799 F.3d
379, 390 (5th Cir. 2015) (explaining that “certain speech, which
would be protected in other settings, might not be afforded First
Amendment protection in the school setting”).
Juxtaposed with the
right to free speech is the “conflicting, but equally important,
need to maintain decorum in our public schools so that the learning
process may be carried out in an orderly manner.”
Hardwick ex
rel. Hardwick v. Heyward, 711 F.3d 426, 436 (4th Cir. 2013)
(internal citation and quotations omitted).
Here, Johnson was not “regulating” Clemmons’s speech because
of its content or viewpoint.
her dishonesty.
has
a
Rather, he was disciplining her for
GTCC, like all institutions of higher learning,
legitimate
and
reasonable
justification
for
enforcing
standards of honesty involving student behavior, particularly as
it
relates
topics.
to
interactions
with
faculty
about
school-related
This is especially true for a program preparing students
for careers in medicine.
Keefe v. Adams, 840 F.3d 523, 530 (8th
Cir. 2016) (“Given the strong state interest in regulating health
professions, teaching and enforcing viewpoint-neutral professional
codes of ethics are a legitimate part of a professional school's
curriculum that do not, at least on their face, run afoul of the
First Amendment.”).
14
Moreover,
in
affirming
her
suspension,
exclude or prohibit Clemmons’s speech.
Johnson
did
not
Rather, he disciplined her
for her repeated false statements, including those made even during
the suspension proceeding itself. Id. (“That a graduate student's
unprofessional speech leads to academic disadvantage does not
‘prohibit’ that speech, or render it unprotected; the university
simply imposes an adverse consequence on the student for exercising
his right to speak at the wrong place and time, like the student
who receives a failing grade for submitting a paper on the wrong
subject.”).
Maintaining an environment that demands honesty from
students is especially reasonable here, as seen by the testimony
of
GTCC
expressed
faculty
at
concerns
Clemmons’s
about
appeal
letting
a
hearing,
student
dishonesty practice in a clinical setting.
44-45; Doc. 35-14 at 32-34.)
where
who
several
exhibited
(Doc. 35-13 at 31-32,
Put another way, “[a] school need
not tolerate student speech that is inconsistent with its ‘basic
educational mission.’” Hazelwood, 484 U.S. at 266 (quoting Fraser,
478 U.S. at 685).)
For these reasons, the court will deny Clemmons’s motion for
summary judgment on her First Amendment claim and grant Johnson’s
motion on the same.
b.
Procedural Due Process
Clemmons argues she was deprived of her education without due
process of law.
She alleges two deprivations; (1) that she was
15
unable
to
have
an
attorney
present
her
case
to
the
Review
Committee, and (2) that GTCC officials failed to give her adequate
notice of the charges she was facing.
Courts
have
assumed,
without
deciding,
that
university
students possess a constitutionally protectable property right in
their continued enrollment in a university.
Regents of the Univ.
of Michigan v. Ewing, 474 U.S. 214, 223 (1985); Tigrett v. Rector
& Visitors of Univ. of Virginia, 290 F.3d 620, 627 (4th Cir. 2002);
Henson v. Honor Comm. of the Univ. of Virginia, 719 F.2d 69, 73
(4th Cir. 1983) (assuming that student had “protectable liberty or
property interest” in Honor Committee disciplinary proceeding).
Assuming, without deciding, the same here, the question becomes
whether
Clemmons
was
afforded
adequate
procedural
protections
during her disciplinary proceedings.
The standard for determining
what due process is due is flexible.
Mallette v. Arlington County
Employees' Supplemental Retirement System II, 91 F.3d 630, 640
(4th Cir. 1996) (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)).
“At a minimum, the Constitution requires notice and some
opportunity to be heard.”
Id.
(citing Joint Anti–Fascist Refugee
Comm. v. McGrath, 341 U.S. 123, 178 (1951)).
“The nature of the
notice and the quality of the hearing are determined by the
competing interests involved.”
Richardson v. Town of Eastover,
922 F.2d 1152, 1159 (4th Cir. 1991); see generally, Butler v.
Rector & Bd. of Visitors of Coll. of William & Mary, 121 F. App'x
16
515, 519–20 (4th Cir. 2005).
In sum, students are not guaranteed
the
as
same
procedural
litigants.
rights
criminal
defendants
or
civil
Chandler, 2016 WL 4435227, at *13 (quoting Heenan v.
Rhodes, 757 F. Supp. 2d 1229, 1243 (M.D. Ala. 2010)).
Clemmons’s first complaint – that her constitutional rights
were violated when she was not allowed to have an attorney address
the Review Committee during her initial appeal – lacks merit.
In
support of her argument, Clemmons cites a North Carolina Court of
Appeals opinion concerning a high school student’s suspension.
In
re Roberts, 150 N.C. App. 86, 92–93, 563 S.E.2 37, 42 (2002),
overruled on other grounds by N. Carolina Dep't of Env't & Nat.
Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004).
The Roberts
court ruled that the school violated due process when it refused
to allow the student legal representation in his disciplinary
proceeding.
But the Fourth Circuit has held that students facing
disciplinary challenges do not have a right to have an attorney
present their case for them.
Cir. 1983).
not
an
Moreover, Roberts concerned a high school student,
adult
distinguished
Wimmer v. Lehman, 705 F.2d 1402 (4th
like
its
Clemmons.
holding
from
Indeed,
the
Wimmer
on
–
she
that
Roberts
very
court
ground.
Roberts, 150 N.C. App. at 91.
Clemmons’s
second
argument
that
was
not
provided
adequate notice of the charges against her – also fails.
True,
GTCC officials initially accused Clemmons of “forgery, alteration,
17
or
misuse
of
college
documents,
records,
or
instruments
of
identification providing false information to the College,” and
the “violation of local, state, or federal criminal law on college
premises.”
(Doc. 35-7 at 2.)
But whether Clemmons’s actions
implicated either prohibition is ultimately not determinative.
What
matters
is
whether
she
was
given
timely
notice
of
the
accusations of her dishonesty, whether her dishonesty violated
stated
school
opportunity
standards,
to
explain
her
and
whether
version
of
she
what
had
a
reasonable
occurred.
While
Hughes’s October 2 email to Clemmons cited the two aforementioned
charges, he later informed her during their October 7 meeting that
she
was
accused
officials.
of
providing
(Doc. 35 ¶ 7.)
false
information
to
college
As Hughes explained, the allegations
centered on her claim that her sister had died, when in fact it
was her dog.
(Id.)
Clemmons does not contest Hughes’s account of their meeting.
And it appears that she was aware of why Hughes was investigating
her actions, as she emailed him on October 6 – before her meeting
with Hughes – that she “accept[ed] full responsibility for [the]
miscommunication on [her] part.”
(Doc. 31-2 at 1.)
conducted
he
probation.
his
investigation,
Clemmons
then
appealed
sanctioned
to
the
After Hughes
Clemmons
Review
with
Committee,
affording her an additional chance to present her side of the
story.
Before the hearing, Hughes reiterated that she was accused
18
of providing false information to GTCC officials.
3, 6.)
(Doc. 35-12 at
During the hearing, Clemmons lied again when she explained
the “service” that was held for her dog.
(Doc. 35-16 at 2.)
This
was in violation of the Student Code of Conduct, which lists as
prohibited
conduct
“falsifying,
distorting
before a Disciplinary Review Committee.”
or
misrepresenting
(Doc. 35-9 at 3.)
The
Review Committee then decided to suspend her.
Despite
retroactively
governing
these
facts,
charging
dental
her
students,
Clemmons
with
argues
violations
because
violated the Student Conduct Policy.
it
cannot
that
of
its
prove
(Doc. 39 at 6.)
GTCC
is
policies
that
she
According
to Clemmons, “[a]t no time was [she] provided information that her
expression of grief and statements were a violation of anything
other than the Student Code of Conduct.”
(Id. at 6.)
The court finds that Clemmons was provided adequate notice.
Carboni v. Meldrum, 949 F. Supp. 427, 437 (W.D. Va.), aff'd, 103
F.3d 116 (4th Cir. 1996) (“Federal guarantees of due process only
require
that
a
student
faced
with
disciplinary
charges
at
a
university be given notice of the charges against her, and a
reasonable opportunity to present her side of the story to a
neutral decisionmaker.”)(citing Goss v. Lopez, 419 U.S. 565, 581,
95 S. Ct. 729, 739–40, 42 L.Ed.2d 725 (1975) and Board of Curators,
19
Univ. of Missouri v. Horowitz, 435 U.S. 78, 83–87 (1978)). 3
While
Clemmons takes issue with GTCC’s initial categorization of her
conduct – arguing that GTCC failed to sufficiently explain to her
why she was being investigated – her meeting with Hughes left no
doubt that she was being investigated for dishonesty. In addition,
before her appeal of Hughes’ sanction, Clemmons received written
notice that she had been found responsible for providing false
information to a GTCC official in relation to her enrollment.
(Doc. 35-12 at 3.)
While Clemmons relies on a parsing of the
Student Conduct Policy, she ignores the Policy’s qualification
that its list of prohibited conduct “does not include all conduct
that could be prohibited.”
(Doc. 35-9 at 2.)
Ultimately, all of
Clemmons’s misconduct occurred after she had received multiple
instructions that GTCC dental students were to conduct themselves
with honesty.
(Doc. 35-1 at 2-5; Doc. 35-2 at 2-4, 7-8.)
Indeed,
before enrolling, Clemmons affirmed her understanding that failure
to comply with these policies could result in her suspension.
(Doc. 35-4 at 2.)
In the end, her argument boils down to a claim that she was
3
Clemmons also argues that GTCC reduced her grades without notice when
she was suspended.
(Doc. 33 at 11.)
This argument fails.
GTCC’s
Student Handbook clearly explains that in the event a student is unable
to finish a course, she will receive an “I” for incomplete. (Doc. 42-1
at 4.) Clemmons affirmed that she was aware of this policy when she
signed her “Student Policy Agreement,” stating that she had read and
understood all of the “policies, guidelines and regulations” set forth
by the GTCC dental program. (Doc. 35-4 at 2.)
20
unaware that the Student Conduct Policy prohibited her lying to
faculty and staff about matters material to her enrollment.
is facially unpersuasive.
This
Thus, to the extent that Clemmons
suggests that she was not given sufficient notice that dishonesty
was impermissible, this argument fails.
The court will therefore deny Clemmons’s motion for summary
judgment on Clemmons’s procedural due process claims and grant
Johnson’s motion on the same, “mindful of the deference courts
traditionally accord academic decision-making.”
Butler, 121 F.
App'x at 519.
c.
Clemmons
Substantive Due Process
also
advances
a
substantive
due
process
claim,
arguing that her suspension and the reduction in her grades were
“constitutionally irrational” and “shocking.”
(Doc. 33 at 12-13.)
Like procedural due process claims, substantive due process claims
are triggered by a legitimate claim of entitlement to a property
interest.
Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62,
80 (4th Cir. 2016).
But unlike procedural due process claims,
determining substantive due process claims involves an assessment
of “the reasonableness of the governmental decision.” Id. A court
begins this assessment by asking whether the challenged conduct
was “so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.”
Hawkins v. Freeman, 195 F.3d
732, 738 (4th Cir. 1999) (quoting Cty. of Sacramento v. Lewis, 523
21
U.S. 833, 847 n.8 (1998)).
If it does not meet that test, the
claim fails on that account, with no need to inquire into the
nature of the asserted liberty interest.
Id.
If it does meet the
threshold test of culpability, the court’s inquiry must turn to
the nature of the asserted interest and the level of protection to
which that interest is entitled.
Hawkins, 195 F.3d at 738.
Meeting this threshold test is difficult.
Cty. of Sacramento, 523
U.S. at 849 (conduct shocks the conscience when it is “intended to
injure in some way unjustified by any governmental interest”)
(emphasis added).
Clemmons’s suspension and reduction in her grades fail to
meet this test.
GTCC officials found that Clemmons was dishonest
and acting in an unprofessional manner, each in violation of school
policy.
Reasonable minds might differ as to the proper punishment
for Clemmons’s repeated lies and falsehoods to the faculty and
administrators of her dental assisting program.
Perhaps, as
Clemmons argues, some may view GTCC’s decision to place her on
probation, later suspend her, and give her failing grades as harsh
punishment. But in light of her persistent falsehoods, even during
the administrative review process, it clearly does not shock the
conscience so as to violate her substantive due process rights.
See, e.g., Hicks ex rel. Hicks v. Halifax Cty. Bd. of Educ., 93 F.
Supp. 2d 649, 665 (E.D.N.C. 1999) (“While the School Board’s
decision to suspend [a student] on a long-term basis and, thereby,
22
to substantially interrupt and interfere with his educational
process, for his failure to wear khaki pants and blue shirt may be
a decision disturbingly inconsistent with the most basic goals of
the public school system, the court cannot conclude that such a
decision ‘shocks the conscience’ as the Supreme Court has used
that term.”) (citing Cty. of Sacramento, 523 U.S. at 849); Thomson
ex rel. Thompson v. Carteret Cty. Bd. of Educ., No. 90-1010, 1990
WL 77153 (4th Cir. Apr. 17, 1990) (per curiam) (affirming summary
judgment for a county that suspended a student after she “consumed
approximately three tablespoons of rum just before coming on school
premises”).
The court will therefore deny Clemmons’s motion for summary
judgment on her federal substantive due process claims and grant
Johnson’s motion as to the same.
B.
State-Law Claims
In addition to seeking relief under federal law, Clemmons
also sought relief, at least in part, under the North Carolina
Constitution and North Carolina’s Administrative Procedure Act,
N.C. Gen. Stat. § 150B-50. For example, she argues that her speech
was also protected under the North Carolina Constitution, that the
punishment violates her State constitutional rights, and that the
discipline meted out is not supported by substantial evidence and
is arbitrary, capricious, and an abuse of discretion.
4; Doc. 33 at 11.)
(Doc. 4 at
As to Clemmons’s claim directed toward GTCC,
23
she has moved to strike any evidence Defendants submitted in
support of their summary judgment briefing that was not contained
in the administrative record on the grounds that, without a proper
motion,
the
State
Administrative
Procedure
Act
prohibits
consideration of new evidence upon judicial review. 4
the
(Doc. 39 at
2.) Defendants contend that Clemmons’s claims fare no better under
State law and, in any event, her statutory claim is time-barred.
(Doc. 37.)
Having resolved her federal claims, the court declines to
exercise jurisdiction over the remaining State-law claims.
Under
28 U.S.C. § 1367(c), a federal district court “may decline to
exercise supplemental jurisdiction” over such State-law claims if
“the district court has dismissed all claims over which it has
original jurisdiction.”
The Fourth Circuit has noted in a similar
circumstance that “[w]ith all its federal questions gone, there
may be the authority to keep [the case] in federal court[,] . . .
but there is no good reason to do so.”
Waybright v. Frederick
Cty., Md., 528 F.3d 199, 209 (4th Cir. 2008).
4
This is particularly
Clemmons does not specifically identify the new evidence she wishes
struck.
(Doc. 39 at 6 (“The court should strike and exclude all
testimonies, documents and defenses not duly disclosed, in this action,
except for the administrative record allowed to be reviewed by the court
under N.C. Gen. Stat. § 150B-47.”).) In her reply brief in support of
her motion, she references Hughes’ affidavit (Doc. 35) and its
attachments, as well as Johnson’s affidavits (Docs. 36, 42) and its
attachments. (Doc. 46 at 5.) She contends that Defendants failed to
file a petition to the court to present “new evidence related to new
theories of the case as required by N.C. Gen. Stat. 150B-49.” (Doc. 38
at 2; Doc. 39 at 5-6.)
24
the case here, where State interests underlie consideration of the
remaining State claims. Because this court will dismiss Clemmons’s
federal claim, therefore, it will decline to exercise supplemental
jurisdiction over her State-law claims, which will be remanded to
State court.
Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617
(4th Cir. 2001) (recognizing that “the remand power [is] inherent
in
the
statutory
authorization
to
decline
supplemental
jurisdiction under § 1367(c)”).
II.
CONCLUSION
For the reasons stated, therefore,
IT IS ORDERED that Clemmons’s motion for summary judgment
(Doc. 30) is DENIED, and her motion to strike (Doc. 38) is DENIED
AS MOOT.
IT IS FURTHER ORDERED that Defendants’ motion for summary
judgment (Doc. 34) is GRANTED with respect to Clemmons’s federal
claims, which are DISMISSED WITH PREJUDICE, and otherwise DENIED
as to Clemmons’s remaining State-law claims, which are REMANDED to
the Superior Court of North Carolina for Durham County for further
consideration.
The court expresses no opinion whether Clemmons’s
State-law claims are barred in whole or in part as a result of
this court’s disposition of her federal claims.
/s/
Thomas D. Schroeder
United States District Judge
July 21, 2017
25
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