L.M. v. Southern Illinois University at Edwardsville

FOR THE SOUTHERN DISTRICT OF ILLINOIS

L.M.,

Plaintiff,

v. Case No. 18-cv-1668-NJR-GCS

SOUTHERN ILLINOIS UNIVERSITY

AT EDWARDSVILLE (SIUE) and

RANDALL G. PEMBROOK, in his

official capacity as Chancellor of SIUE,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is a Motion to Dismiss Plaintiff’s Complaint filed by

Defendants Southern Illinois University at Edwardsville and Randall Pembrook

(Docs. 10 and 11).

FACTUAL BACKGROUND

Plaintiff, L.M., was a male student at Southern Illinois University at Edwardsville

(“SIUE”) (Pl.’s Compl., Doc. 1-1, ¶ 1-5). For months prior to October 15, 2017, L.M. had a

strictly sexual relationship1 with a female student, C.M. (Doc. 1-1, ¶ 1-5). On October 15,

2017, C.M. went to L.M.’s apartment where they drank alcohol and had sex three times

(Id.).

Approximately one month later, C.M. went to SIUE authorities and disclosed that

1 The Complaint alleges that they did not have a romantic relationship and never went on a formal “date”

(Doc. 1-1, ¶ 4).

sexual assaults began in April 2018 (Id.). On April 25, 2018, SIUE’s Associate Dean

Shustrin issued a written investigation report finding L.M. had sex with C.M. at times

when, due to C.M.’s ingestion of alcohol, she was unable to give knowing consent (Id. at

¶ 8). L.M. appealed the investigator’s findings of two incidents of guilt (Id. at ¶ 13).

The appeal went to SIUE’s Sexual Harassment Panel (“Panel”), which held a

hearing with live testimony on May 18, 2018 (Id.). L.M. complains about the procedures

of this hearing including: L.M.’s lawyer being unable to speak during the proceeding,

L.M.’s lawyer being unable to conduct direct or cross examinations of witnesses, and the

Panel’s handling of the cross-examination questions that L.M.’s counsel submitted to

them (Id. at ¶ 17-21).

On June 4, 2018, the Panel issued its report of findings (Id. at ¶ 22). Specifically, the

Panel found L.M. guilty of sexual harassment of C.M. at 2:00 a.m. on October 15, 2017 (Id.

at ¶ 23). The Panel found L.M. innocent of sexual harassment at 4:00 a.m. and 10:00 a.m.,

which were the other two times L.M. and C.M. had sex on October 15, 2017 (Id.).

L.M. appealed the Panel’s decision to Chancellor Pembrook. Chancellor

Pembrook, also a defendant in this case, upheld the Panel’s decision to discipline L.M.

and stated that L.M. “has received all due process rights afforded by University policy.”

(Id. at ¶ 25).

On July 23, 2018, L.M. filed suit in Madison County state court, and the case was

removed here on August 30, 2018 (Doc. 1). L.M.’s Complaint alleges the following six

counts:

harassment policies and procedures violate due process and

violated L.M.’s constitutional rights;

Count II - Injunctive Relief under 42 U.S.C. § 1983;

Count III - In the alternative, an award of Compensatory Damages under

42 U.S.C. § 1983;

Count IV - Violation of Title IX, 20 U.S.C. § 1681, et seq.—Disparate

Treatment Based on Sex;

Count V - Violation of Title IX, 20 U.S.C. § 1681, et seq.—Disparate

Impact Based on Sex; and

Count VI - Administrative Review and Relief and Vacation of the

adverse determination of SIUE and Defendant Pembrook of

June 19, 2018.

LEGAL STANDARD

In evaluating a motion to dismiss brought pursuant to Federal Rule of Civil

Procedure 12(b)(6), a district court must treat all well-pleaded facts as true and draw all

reasonable inferences in favor of the non-moving party. Trujillo v. Rockledge Furniture LLC,

926 F.3d 395, 397 (7th Cir. 2019). Taking the factual allegations as true, a complaint must

“state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007). “A plaintiff must plead particularized factual content, not conclusory

allegations, that allows the court to plausibly infer the defendant is liable for the alleged

misconduct.” Doe v. Columbia Coll. Chi., 933 F.3d 849, 854 (7th Cir. 2019).

ANALYSIS

I. Counts I and II

Counts I and II seek declaratory and injunctive relief under relief under

42 U.S.C. § 1983 based on a theory of deprivation of due process. The Seventh Circuit

identify the protected property or liberty interest at stake. Second, it must determine what

process is due under the circumstances.” Charleston v. Bd. of Trustees of Univ. of Illinois at

Chicago, 741 F.3d 769, 772 (7th Cir. 2013). There are two protected interests the Seventh

Circuit has recognized in university discipline due process cases: (1) a protected property

interest; and (2) a protected liberty interest. See Doe v. Purdue Univ., 928 F.3d 652, 660-63

(7th Cir. 2019). Thus, to survive a motion to dismiss, L.M. must allege he was deprived

of a property interest or liberty interest. The Complaint fails to specifically allege the

“property interest” or “liberty interest” that was violated, so the Court is left to piece the

factual allegations together to see if a potential property interest or liberty interest is

implicated.

A. Property Interest

The Seventh Circuit has held a property interest in higher education is a matter of

contract between the student and the university. See Bissessur v. Ind. Univ. Bd. of Trs., 581

F.3d 599, 601 (7th Cir. 2009) (The “basic legal relation between a student and a private

university or college is contractual in nature”). In a complaint for deprivation of a

property interest by a university, the “university student must do more than show that

he has a contract with the university; he must establish that the contract entitled him to

the specific right that the university allegedly took, such as the right to a continuing

education or the right not to be suspended without good cause.” Purdue Univ., 928 F.3d

at 660 (quotations and citations omitted). “[T]he student’s complaint must be specific

about the source of this implied contract, the exact promises the university made to the

Ill. at Chi., 741 F.3d 769, 773 (7th Cir. 2013).

Here, the Complaint fails to specify any specific promise the school made to L.M.

that was protected by due process. Even though it mentions various interests of L.M.

(although these are only mentioned under Count III), including being able to take another

year of education at SIUE, his FAFSA funding, and his fourth-year scholarships, the

Complaint fails to allege a specific promise the school made to him to allow him to take

another year of education at SIUE, or a specific promise to give FAFSA funding, or a

specific promise to grant fourth year scholarships. Because the Complaint has failed to

specify “the exact promises the university made to the student, and promises the student

made in return[,]” Id., L.M. has failed to adequately allege that he was deprived of a

property interest.

B. Liberty Interest

L.M.’s Complaint also fails to allege a protected liberty interest that would allow

him to seek relief based on procedural due process. “The concept of liberty in Fourteenth

Amendment jurisprudence has long included the liberty to follow a trade, profession, or

other calling.” Lawson v. Sheriff of Tippecanoe Cty., Ind., 725 F.2d 1136, 1138 (7th Cir. 1984).

“It is the liberty to pursue a calling or occupation, and not the right to a specific job, that

is secured by the Fourteenth Amendment.” Wroblewski v. City of Washburn, 965 F.2d 452,

455 (7th Cir. 1992). The Supreme Court has assumed there is a liberty interest in higher

education at a public university. See Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S.

78, 82–85 (1978).

allege this. In his response to the motion to dismiss, L.M. argues that he “has a protected

interest because the suspension for one year stops him from pursuing a second Bachelor’s

Degree, a degree he will contend in a First Amended Complaint that he would have

pursued, but for the suspension.” (Doc. 18, p. 4). This interest is obviously not alleged in

the original Complaint, and this argument is not sufficient to defeat a motion to dismiss

directed at that Complaint.

C. Substantive Due Process

“There are two types of substantive due process violations.” T.E. v. Grindle, 599

F.3d 583, 589 (7th Cir. 2010). “The first occurs when the state actor’s conduct is such that

it ‘shocks the conscience.’” Id. “The second occurs when the state actor violates an

identified liberty or property interest protected by the Due Process Clause.” Id.

As explained above, the Complaint fails to clearly define the specific liberty or

property interest that was violated here. The Complaint also does not clearly delineate

what allegations relate to a substantive due process claim. L.M. appears to be alleging

that the Procedures and Policies violate substantive due process because they did not

allow counsel to conduct direct examination of L.M. or cross-examination of C.M., and

because counsel could only submit written questions in advance. To survive a motion to

dismiss, a plaintiff must allege that the defendant’s actions (1) were arbitrary and

irrational and (2) shock the conscience. Pyles v. Vill. of Manteno, No. 13-CV-2114, 2013 WL

6459484, at *5 (C.D. Ill. Dec. 9, 2013) (citing Altman v. City of Chicago, 99 C 6496, 2000 WL

6458932, at *5 (N.D. Ill. Oct. 25, 2000)).

examination and speak at the hearing, L.M. alleges that this is “irrational” and “shocks

the conscience.” (Doc. 1-1, p. 12-13). Whether certain conduct shocks the conscience is “a

necessarily fact-bound inquiry,” and not appropriately decided at the motion to dismiss

stage. Eilenfeldt v. United C.U.S.D. #304 Board of Education, 84 F. Supp. 3d 834, 845 (C.D.

Ill. 2015) (citing King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 818 (7th Cir.

2007)); see also Fenner v. Freeburg Community High School District No. 77, No. 15-0729-DRH,

2016 WL 633898, at *3 (S.D. Ill. Feb. 17, 2016). Defendants have not cited to authority

demonstrating why this particular allegation fails to state a substantive due process

claim. Thus, L.M.’s substantive due process claim will not be dismissed at this stage of

the proceedings. To the extent L.M. seeks to allege that various other procedures violated

substantive due process, however, he must specifically allege that those procedures were

arbitrary and irrational and shock the conscience.

Accordingly, Counts I and II, to the extent that they raise a procedural due process

claim, are dismissed without prejudice. Counts I and II, to the extent they raise a

substantive due process claim relating to Procedures and Policies that disallow counsel

to conduct cross examination and speak at the hearing, will proceed.

II. Count III

Count III seeks an alternative award of compensatory damages under Section

1983. Defendants argue that Count III should be dismissed because the Eleventh

Amendment immunizes SIUE and Chancellor Pembrook from Section 1983 money

damage claims because both defendants are “alter egos” of the state. L.M. concedes Count

Pembrook (sued in his official capacity) are not persons within the meaning of Section

1983, Count III is dismissed with prejudice. See, e.g., Kaimowitz v. Bd. of Trs. of the Univ. of

Ill., 951 F.2d 765, 767 (7th Cir. 1991) (“[A] state university is not a person within the

meaning of § 1983 and therefore not subject to suits brought under § 1983.”).

III. Counts IV and V

Counts IV and V allege claims against Defendants for violations of Title IX,

alleging “disparate treatment based on sex” and “disparate impact based on sex.” Title

IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).

Defendants argue that Counts IV and V, as asserted against Chancellor Pembrook, should

be dismissed because Chancellor Pembrook is an individual. Defendants further argue

that L.M.’s Title IX claims against SIUE fail to state a claim upon which relief can be

granted.

L.M. concedes that Chancellor Pembrook is not an appropriate defendant for the

Title IX claims (Doc. 18, p. 1-2). L.M. further concedes that more specificity is required as

to the Title IX claims against SIUE (Id.). Accordingly, the Title IX claims against SIUE are

dismissed without prejudice. The Title IX claims against Chancellor Pembrook, however,

are dismissed with prejudice.

IV. Count VI

Count VI alleges a state law claim for judicial review of the administrative decision

of SIUE’s Sexual Harassment Panel. Illinois Administrative Review Law permits judicial

by express reference in the statute creating or conferring jurisdiction on the

administrative agency involved. 735 ILCS 5/3-102 (“This Article III shall apply to and

govern every action to review judicially a final decision of any administrative agency

where the Act creating or conferring power on such agency, by express reference, adopts

the provisions of this Article or its predecessor, the Administrative Review Act.”).

Defendants argue that the statutes creating and governing the operations of

Southern Illinois University, 110 ILCS 520/0.01 et seq., do not expressly adopt the

provisions of the Administrative Review Law. L.M.’s only argument in response is that

SIUE is an “administrative agency” under the Act and subject to review under the Act.

But L.M. fails to point to any express reference to Administrative Review Law, and the

Court finds that the statutes are silent with respect to judicial review of disciplinary

determinations. See 110 ILCS 520/0.01 et seq. Thus, the decision of SIUE’s Sexual

Harassment Panel does not appear to be subject to review under the Administrative

Review Law. See Peters v. Bd. of Trustees of S. Illinois Univ., 351 Ill. App. 3d 1143, 1147, 816

N.E.2d 1, 3-4 (2004) (similarly finding that “[t]he statutes creating and governing the

operations of Southern Illinois University and its board of trustees do not expressly adopt

the provisions of the Administrative Review Law”). Accordingly, Count VI of the

Complaint is dismissed with prejudice.

CONCLUSION

For the reasons set forth above, the Court GRANTS in part the Motion to Dismiss

filed by Defendants Southern Illinois University at Edwardsville and Randall Pembrook

are DISMISSED without prejudice. Counts III and VI are DISMISSED with prejudice.

Counts IV and V as against Randall Pembrook are DISMISSED with prejudice. Counts

IV and V as against Southern Illinois University at Edwardsville are DISMISSED

without prejudice. L.M. is granted leave to file an Amended Complaint on or before

November 27, 2019.

In so doing, L.M.’s counsel is advised to consult Rule 8(a)’s requirement that a

complaint contain a “short and plain statement” of the claim. The purpose of a complaint

is to give the defendants notice of the specific causes of action being asserted against them

and the alleged misconduct that gives rise to those claims. Moreover, it is inappropriate

to include argument in a complaint.

IT IS SO ORDERED.

DATED: November 6, 2019

s/ Nancy J. Rosenstengel____________

NANCY J. ROSENSTENGEL

Chief U.S. District Judge