DOE v. TRUSTEES OF INDIANA UNIVERSITY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JOHN DOE, )

)

Plaintiff, )

)

v. ) No. 1:20-cv-00123-JRS-DML

)

TRUSTEES OF INDIANA UNIVERSITY, )

LAUREN ROBEL, )

KATHY ADAMS-REISTER, )

LIBBY SPOTTS, )

ROBERT BILLINGHAM, )

MICHAEL COURTNEY, )

GRANT VOGTMAN, )

)

Defendants. )

Entry and Order on Defendants' Motion to Dismiss (ECF No. 46)

Indiana University suspended Plaintiff John Doe ("John") after finding him guilty

of sexual misconduct against a non-student minor. John brought suit against the

Trustees of Indiana University, Provost Lauren Robel, Title IX Deputy Coordinator

and Director of the Office of Student Conduct Libby Spotts, and IU Hearing Commis-

sion members Robert Billingham, Michael Courtney, and Grant Vogtman (collec-

tively "IU," "University," or "Defendants") under 42 U.S.C. § 1983 and 28 U.S.C.

§ 2201, alleging a deprivation of procedural due process. Defendants moved to dis-

miss. (ECF No. 46.) For the following reasons, the Court dismisses John's suit with-

out prejudice.

I. Standard of Review

A complaint must contain a short and plain statement showing that the pleader

is entitled to relief. Conley v. Gibson, 355 U.S. 41, 47 (1957). "To meet this standard,

a plaintiff is not required to include 'detailed factual allegations,'" but the factual

allegations must "state a claim to relief that is plausible on its face." Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if it "pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556).

When considering a motion to dismiss for failure to state a claim, courts "take all

the factual allegations in the complaint as true," Iqbal, 556 U.S. at 678, and draw all

reasonable inferences in the plaintiff's favor, Roberts v. City of Chicago, 817 F.3d 561,

564 (7th Cir. 2016). Courts, however, need not accept the truth of mere legal conclu-

sions. Iqbal, 556 U.S. at 678–79. "[I]f a plaintiff pleads facts that show its suit [is]

barred . . . it may plead itself out of court under a Rule 12(b)(6) analysis." Whirlpool

Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995) (citation omitted).

II. Background

John Doe began his freshman year at Indiana University-Bloomington in Septem-

ber of 2019. (Compl. ¶ 3, ECF No. 43.) He planned to work toward eventually ob-

taining a Master of Business Administration (MBA) degree. (Id. ¶ 44.)

Soon after beginning classes, John was criminally charged with felony sexual mis-

conduct against a sleeping minor, Jane Doe, and a warrant issued for his arrest. (Id.

¶ 45.) In October, an online news website reported on John's arrest and the sexual

misconduct charge. (Id. ¶ 5.)

In early November, the University first learned of John's arrest through the arti-

cle. (Id. ¶¶ 6–7.) On November 11, based on the article, Title IX Deputy Coordinator

and Director of the Office of Student Conduct Libby Spotts notified John that IU was

summarily suspending him for violating IU's Code of Student Rights. (Id.) The sus-

pension would last one year at minimum. (Ex. 1 at 1, ECF No. 43-1.) The notification

letter sent to John stated that Jane had alleged that John sexually assaulted her

while she was visiting John's sister on July 4, 2019. (Id.) Jane said she had fallen

asleep at an off-campus residence and woke to find John's hands down her pants; she

fell back asleep and woke again to find her pants off and John attempting to have sex

with her. (Id.) Consequently, IU said, John posed a "serious threat of harm to

[him]self and/or others on the campus." (Compl. ¶¶ 6–7, ECF No. 43.) IU's summary

suspension procedure permits the Provost to act without following normal procedures

if she is "satisfied that the student's continued presence on the campus constitutes a

serious threat of harm . . . ." (Ex. 1 at 2, ECF No. 43-1.) John requested a formal

hearing reviewing the summary suspension decision before the University Hearing

Commission, comprised of Defendants Robert Billingham, Michael Courtney, and

Grant Vogtman. (Compl. ¶ 8, ECF No. 43.) Spotts contacted John to schedule the

hearing the next day. (Id. ¶ 55.)

IU conducted the hearing on November 15. (Id. ¶ 9.) Minutes before it began,

John reviewed IU's case file, which contained only his correspondence with the Uni-

versity and the docket from his pending criminal case. (Id. ¶ 73.) At the hearing

itself, IU called no witnesses and presented no documents. (Id. ¶ 75.) But John and

his sister testified, presenting a different story than the one Jane told police. They

confirmed that Jane had visited John's sister on July 4, 2019, and that Jane had spent

time in John's room. (Id. ¶ 66.) But John and his sister testified that John's sister

was also present, so John was never alone with Jane and was never physically in a

position to sexually assault her. (Id. ¶¶ 68–71, 80–81.) John and his sister also tes-

tified that Jane had exhibited "odd behavior" that afternoon when she was caught by

John and his sister with her pants down, apparently peeing in a garbage can in the

corner of the room. (Id. at ¶ 72.) John and his sister testified that they believed Jane

was "humiliated," and that none of the three ever spoke of the matter again. (Id. ¶

72.) While John's sister was testifying, a commissioner asked her about Jane's pos-

sible motive for making a false accusation, but Spotts interjected and instructed the

sister not to answer, reasoning that Jane was not available to rebut the sister's testi-

mony. (Id. ¶ 103.) At the end of the hearing, Spotts identified the following as evi-

dence in the record: John's testimony, his sister's testimony, the charges filed against

John, and an online news report about John's arrest. (Id. ¶ 77.) At no point did IU

speak with Jane or ask her to provide a statement. (Id. ¶¶ 14, 93–97, 106.) In total,

the hearing lasted about two hours. (Id. ¶ 75.)

On November 18, the Hearing Commission notified John that it had found him

responsible for personal misconduct by a preponderance of the evidence and would

uphold his summary suspension. (Id. ¶¶ 78–79.) John appealed. (Id. ¶ 83; Ex. 3,

ECF No. 43-3.) Provost Lauren Robel affirmed the suspension, citing the criminal

charge against him in support. (Ex. 4 at 1, ECF No. 43-4.)

John remains suspended, but events after the Commission's decision are relevant.

On February 17, 2020, John entered into a pre-trial diversion program under Indiana

Code § 33-39-1-8(d). (Ex. 6, ECF No. 43-6.) Through the program, the prosecutor

agreed to dismiss the charge against John on May 17, 2020. (Id.) The agreement

prohibits John from contacting Jane for eighteen months from the date of signing,

(id.), extending on a state judge's no-contact order from September 26, 2019, (ECF

No. 41-3). And, although he wants to return to IU, John applied to transfer to Purdue

"in an effort to mitigate his damages during the pendency of this action." (Compl. ¶

112, ECF No. 43.) He was obligated to report and did report the existence of IU's

disciplinary action in the application. (Id. ¶ 112.)

John sued the Trustees, the commissioners, Spotts, and Robel under 42 U.S.C.

§ 1983 and 28 U.S.C. § 2201, alleging that they deprived him of procedural due pro-

cess at his disciplinary hearing. John seeks injunctive relief, including reinstatement

as a student at IU, a new and procedurally proper hearing, expungement of his rec-

ords at IU of any information related to the disciplinary hearing, and rescission of

any failing grades stemming from the suspension. (Id. at 40.) He also asks the Court

to enjoin Defendants from enforcing any associated discipline and sanctions and from

subjecting him to further improper disciplinary proceedings. (Id. at 42.) Defendants

moved to dismiss. (ECF No. 46.)

III. Discussion

The Due Process Clause guarantees certain procedures when a state actor de-

prives someone of "life, liberty, or property." U.S. Const. amend. XIV, § 1. Because

John has not adequately pleaded a deprivation of any of those three interests, John

fails to state a claim.

A. John has failed to plausibly allege that his liberty interest was deprived.

Defendants argue that no cognizable liberty interest is at stake in this case, but

John maintains that the University deprived him of his occupational liberty to pursue

a career in business management.1 (Compl. ¶ 44, ECF No. 43.) To state a claim

under this theory, known as the stigma-plus test, John must allege (1) that the state

disclosed information that damaged his reputation, (2) that the reputational harm

made it "virtually impossible" for him to find employment in his chosen profession,

and (3) that his legal status was altered, depriving him of a previously held right. See

Doe v. Purdue Univ., 928 F.3d 652, 661 (7th Cir. 2019) (citations omitted).

1. John has failed to plead state disclosure.

The first prong of state disclosure roughly corresponds to the publication require-

ment of defamation law. Just as self-defamation is not actionable, self-publication of

1 By failing to respond to Defendants' relevant argument, John concedes that this case implicates no

property interest. See Charleston v. Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 772 (7th Cir.

2013) (reaffirming that the Seventh Circuit does not recognize a stand-alone property interest in

higher education at a state university).

harmful material is inadequate to establish a liberty interest—"a plaintiff can't him-

self spill the beans and then blame the defendant for ruining his reputation." Purdue,

928 F.3d at 661 (citing Olivieri v. Rodriguez, 122 F.3d 406 (7th Cir. 1997)). The pub-

lication requirement of the stigma-plus test is met when disclosure of damaging in-

formation is (1) "compelled," (2) "certain," and (3) "not self-published." Purdue, 928

F.3d at 662. Notably, dissemination by the defendant and not by the plaintiff is a

strict requirement in stigma-plus claims in the Seventh Circuit. See Olivieri, 122

F.3d at 408–409 (explicitly rejecting the approach of other circuits that allow plain-

tiffs to establish stigma-plus claims via self-publication); Johnson v. Martin, 943 F.2d

15, 16–17 (7th Cir. 1991) (same).

Two examples cited in Purdue are illustrative. In Olivieri, the plaintiff probation-

ary officer was fired for sexually harassing female probationers, and he sued his su-

perintendent on a stigma-plus theory. 122 F.3d at 407. Although the superintendent

had never publicly disclosed the grounds for discharge, the plaintiff argued that he

would inevitably have to disclose the reasons for his discharge in future interviews

with police departments. Id. at 408. But the Seventh Circuit rejected his theory

because the plaintiff's honest disclosure does not meet the requirement of dissemina-

tion by the defendant. Id. at 408–409. On the other hand, in Dupuy v. Samuels, the

plaintiffs were legally obligated to authorize a state agency to disclose to current and

future employers a finding that the plaintiffs were child abusers—the panel held that

this scenario, in which the state did the disclosing, satisfied the publication compo-

nent of the stigma-plus test. 397 F.3d 493, 510 (7th Cir. 2005). Likewise, in Purdue,

the plaintiff was legally obligated to authorize Purdue University's disclosure of the

plaintiff's disciplinary record to the Navy. 928 F.3d at 662. In both Dupuy and Pur-

due, the state—not the plaintiff—disseminated the defamatory information.

In contrast, John has not pleaded state disclosure. John alleges that he would be

obligated to disclose his disciplinary record if and when he applies to an MBA or other

graduate-school program. (Ex. 5 ¶¶ 13–14, ECF 43-5 ("John will face a legal obliga-

tion to disclose—often under penalty of perjury—IU's disciplinary action. . . . Most

schools impose on the applicant a legal obligation to disclose sexual misconduct dis-

ciplinary actions." (emphases added))). Additionally, John alleges that he was legally

obligated to disclose his disciplinary record in his transfer application to Purdue.

(Compl. ¶ 112, ECF No. 43 ("The transfer application John submitted to Purdue re-

quired that John report the existence of IU’s disciplinary action, which he has done."

(emphasis added))). Read in the light most favorable to John, neither allegation is

adequate to fulfill the dissemination requirement of the stigma-plus test; although

John has alleged that his own disclosure was certain and compulsory, he has not

alleged that IU has ever disseminated his disciplinary record. John's case is therefore

closer to Olivieri than Dupuy or Purdue.

John's brief opposing Defendant's motion to dismiss simultaneously relies intrin-

sically on Purdue and ignores that decision's reiteration that self-publication cannot

form the basis of a stigma-plus claim. See Purdue, 928 F.3d at 662 ("Purdue, not

John, revealed to the Navy that it had found him guilty of sexual violence . . . ." (em-

phasis added)). To avert dismissal on the self-publication ground, John points to a

recent case from the Northern District of Indiana, Doe v. Purdue Univ., No. 4:19-CV-

56-TLS-JPK, 2020 WL 2839177 (N.D. Ind. June 1, 2020). There, the plaintiff was

expelled from a state university after a negative sexual misconduct determination,

and he brought a stigma-plus claim under § 1983. Id. at *1. Although the plaintiff

only alleged an obligation to self-report his disciplinary record to graduate schools

and licensing boards—not alleging that the state would disclose such information—

the court found that he had stated a claim under the stigma-plus test. Id. at *8. The

Northern District of Indiana court seemingly did not consider the dissemination ele-

ment of the stigma-plus test, as its opinion does not mention that rule or discuss the

operative cases. Consequently, that decision does not persuade the Court in this case.

In any event, that decision is not binding here, whereas Seventh Circuit precedent,

requiring state disclosure, is.

Because John has failed to plead that IU disseminated stigmatizing information,

he fails to state a claim.2

2. John has adequately pleaded that IU's disciplinary finding will make it "vir-

tually impossible" for him to find a job in his chosen career.

Under the second prong of the stigma-plus test, John must show that his "good

name, reputation, honor or integrity [were] called into question in a manner that

makes it virtually impossible for the employee to find new employment in his chosen

field." Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir. 2001). The level of stigma

must cause a "tangible loss of other employment opportunities" or "have the effect of

2 Taking for granted that John can plead facts to cure this defect, the Court will address the remain-

ing issues in this motion for efficiency's sake.

blacklisting" the plaintiff from comparable jobs. Id. (internal quotation marks and

citations omitted).

Defendants argue that John has failed to allege that IU's finding of sexual mis-

conduct foreclosed his career opportunities. Specifically, Defendants maintain that

an alleged loss of higher education opportunities—like the MBA John hopes to obtain,

(Compl. ¶ 44, ECF No. 43)—is insufficient. They argue that John needs to further

allege a particular lost opportunity in the field of business. In contrast, John believes

that his allegation of a lost opportunity to obtain an MBA is sufficient without any

further allegations of loss within a "discrete field of employment." (Pl.'s Opp. Defs.'

Mot. Dismiss Am. Compl. at 13, ECF No. 48.) John says that his being blacklisted

from graduate business schools necessarily precludes his chosen business career,

even if that career is far in the future.

The dispute here revolves around how much attenuation between discipline and

negative employment consequences the phrase "virtually impossible for the employee

to find new employment in his chosen field" allows. John has pleaded that his inabil-

ity to get an MBA, owing to stigma, would make it virtually impossible to enroll in a

reputable graduate school. (Ex. 5 ¶ 16, ECF No. 43-5; Compl. ¶ 152, ECF No. 43.) In

turn, John's career of choice would be unavailable, as John's brief further indicates

that a graduate MBA degree "is a necessary predicate to a career in higher-level busi-

ness management."3 (Pl.'s Opp. Defs.' Mot. Dismiss Am. Compl. at 14, ECF No. 48.)

3 Although this fact was set forth in the briefs and not the pleadings, the Court will consider it be-

cause it is consistent with the amended complaint. See, e.g., Phillips v. Prudential Ins. Co. of Am.,

714 F.3d 1017, 1020 (7th Cir. 2013).

That proposition may eventually be proven wrong—for example, many companies

employing higher-level business managers may prefer their own post-graduate train-

ing programs to an MBA program. But the Court nevertheless finds that these al-

leged facts plausibly show at this early stage of litigation that John's intended career

in higher-level business management is essentially foreclosed.

3. John has sufficiently alleged that his legal status was altered.

Finally, to state a stigma-plus claim, John "must also show that the stigma was

accompanied by a change in legal status." Purdue, 928 F.3d at 662. In Purdue, the

panel found that the state university changed the plaintiff's legal status when it sus-

pended him, subjected him to readmission requirements, and caused the loss of his

Navy ROTC scholarship. Id. at 661. The same is true here. After an official deter-

mination of guilt, IU suspended John for at least twelve months. (Compl. ¶ 38, ECF

No. 43.) To be reinstated, John must meet several conditions. (Ex. 4 at 1, ECF No.

43-4.) IU barred John from entering any IU campus or participating in IU program-

ming. (Id. at 2.) And John has "most likely lost the benefit of the scholarships and

financial aid" he previously had access to. (Compl. ¶ 110, ECF No. 43.) John has

therefore sufficiently alleged that he suffered a change in legal status due to IU's

conduct.

B. Assuming he could plead that IU divested his liberty interest, John has plausi-

bly pleaded that IU afforded him inadequate process.

"The fundamental requirement of due process is the opportunity to be heard 'at a

meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319,

333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). In the school

disciplinary context, as in others, the requisite procedures are "context-specific." Pur-

due, 928 F.3d at 665 (citing Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78,

86 (1978)). The higher the education level, the more procedure a student is entitled

to. See Pugel v. Bd. of Trs. of Univ. of Ill., 378 F.3d 659, 663–64 (7th Cir. 2004). And,

a university must provide stronger safeguards where more severe consequences are

at stake, such as longer-term suspensions or expulsions. See Purdue, 928 F.3d at 665

(citing Goss v. Lopex, 419 U.S. 565, 584 (1975)).

Two features that render a hearing like John's inadequate emerged from Purdue.

First, the state university cannot withhold evidence. Purdue, 928 F.3d at 663

("[W]ithholding the evidence on which [the University] relied in adjudicating [John's]

guilt was itself sufficient to render the process fundamentally unfair.") (citing Goss,

419 U.S. at 580). Second, the "'hearing must be a real one, not a sham or pretense.'"

Purdue, 928 F.3d at 663 (quoting Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622,

629 (7th Cir. 2016)). Specifically, the Purdue panel found two circumstances indicat-

ing that the result of the hearing was predetermined, or a "sham": (1) two of Purdue's

three commissioners did not read the investigative report containing inculpatory ev-

idence, but they found the plaintiff guilty anyway; and (2) the Purdue commissioners

announced adverse credibility conclusions against the plaintiff and positive credibil-

ity conclusions as to the accuser without ever evaluating her by testimony, judging a

written statement, or hearing specific impeachment evidence proffered against the

accuser. 928 F.3d at 663–64.

John has not pleaded facts showing that IU withheld evidence at his hearing.

However, John does claim that the hearing was a "sham." (Compl. ¶¶ 12, 14, 92, 95,

167, ECF No. 43.) In support of his allegation that the hearing was predetermined,

John specifies that IU (1) failed to conduct any investigation, (2) failed to present

inculpatory evidence, (3) ignored exculpatory evidence, (4) denied him the oppor-

tunity to present impeachment evidence, and (5) unjustifiably believed the absent

accuser over John. (Id. ¶ 12.) Furthermore, John asserts that he had a right to cross-

examine his accuser, (id. ¶ 132), an undecided issue in the Seventh Circuit.

Points (1) and (2) boil down to an attack on the evidentiary rules IU used. Namely,

John believes that IU could not consistent with due process find him guilty based only

on an arrest warrant issued against him for felony sexual assault of a minor.4 (Id. ¶

141; Pl.'s Opp. Defs.' Mot. Dismiss Am. Compl. at 23, ECF No. 47.) In support of that

proposition, John cites language in Purdue warning universities not to find students

"guilty based on the accusation rather than the evidence." 928 F.3d at 663. But

"accusation" in Purdue refers to Jane Doe's bare complaint to the university, not a

formalized finding of probable cause. Indeed, Purdue did not disturb caselaw finding

an arrest warrant to be "compelling evidence" that could at least justify a suspension

without a pre-deprivation hearing. Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d at 668,

674 (7th Cir. 2016). And while the arrest warrant in John's case arose in the context

4 John attempts to frame his objection to the admissibility of the arrest warrant as an issue of the

University failing to conduct "any investigation" into his wrongdoing. (Compl. ¶ 98, ECF No. 43.)

But what he really questions is whether IU could properly find him guilty while relying primarily on

the arrest warrant as inculpatory evidence. This is a challenge to the admissibility and weight of the

warrant as evidence.

of a post-deprivation hearing, the Court cannot say that the commissioners erred

simply by considering the warrant—the Court is reluctant to impose rules of evidence

on universities. See Medlock v. Trs. of Ind. Univ., 738 F.3d 867, 871 (7th Cir. 2013)

(cautioning courts to avoid "judicializing university disciplinary proceedings"). Nor

did Purdue disturb precedent that a university need only "some evidence" of miscon-

duct before disciplining a student. McDonald v. Bd. of Trs. of Univ. of Ill., 375 F.

Supp. 95, 103 (N.D. Ill.) (using "some evidence" standard and rejecting substantial-

evidence standard in analyzing hearing that resulted in student's expulsion for cheat-

ing), aff'd and adopted, 503 F.2d 105 (7th Cir. 1974). The Court is therefore not per-

suaded that IU needed to use a higher evidentiary standard or that IU could not

consider the arrest warrant as inculpatory evidence.

John's allegations under points (3), (4), and (5) are more concerning. Essentially,

he argues that IU mishandled the credibility determinations in John's disciplinary

hearing. For one, IU did not call Jane to testify or ask her to provide a written state-

ment, (Compl. ¶¶ 14, 93–97, 106, ECF No. 43), so IU had no way to evaluate her

credibility. Yet, IU concluded she was credible. (Id. ¶¶ 102, 132, 136, 168.) Addi-

tionally, Spotts prevented John's sister from testifying as to impeachment evidence

regarding Jane's motivations for falsely accusing John. (Id. ¶¶ 104–106, 142.)

In important respects, the alleged procedural defects in IU's hearing parallel those

in Purdue. Like in Purdue, the commissioners here found John's accuser more cred-

ible without ever hearing from her. (Id. ¶ 136.) Like in Purdue, the commissioners

did not try to examine the accuser's credibility, although John identified specific im-

peachment evidence. (Id. ¶ 72.) Like in Purdue, the University blocked John from

presenting impeachment evidence as to the accuser's motive to lie. (Id. ¶¶ 103–106.)

And, like in Purdue, this case involves a "he said/she said" problem where credibility

determinations matter immensely. If true, these facts are sufficient to establish a

procedural defect in John's hearing.

This case and Purdue do differ in one key respect: Here, the evidence included an

arrest warrant against John. IU implies that the fact of an arrest warrant issuing

against John—after the complainant convinced a prosecutor and judge of John's

wrongdoing—bolsters the complainant's credibility. (Defs.' Br. Supp. Mot. Dismiss

at 5, ECF No. 47.) But the arrest warrant here does not cure the procedural defect of

making unsubstantiated credibility determinations. Although an accuser must con-

vince both a prosecutor and judge before an arrest warrant issues, the process leading

to a criminal charge presents countless unknowns. Did the prosecutor or judge ques-

tion credibility at all, or did they take Jane's word at face value? By what methods,

if any, did they evaluate Jane's credibility? And would they have believed her had

they heard John's and his sister's conflicting story? Given these unanswerable ques-

tions, IU could not simply substitute the prosecutor's and judge's suspicions for their

own credibility determinations and call it a day. While an arrest warrant is "compel-

ling evidence" in the context of summary suspension, see Hess, 839 F.3d at 674, and

perhaps even probative evidence of guilt in a post-deprivation hearing, see Part III.B.,

supra, an arrest warrant alone is not an instrument by which the commissioners

could have independently evaluated Jane's credibility. The additional fact of an ar-

rest warrant here therefore does not meaningfully distinguish this case from Purdue.

Finally, as to the Spotts objection, IU says that John has failed to state a claim

because he has not demonstrated how the evidentiary objection prejudiced him—for

example, John did not plead that his sister's blocked testimony regarding Jane's mo-

tive to lie would have changed the commissioners' minds. (Defs.' Br. Supp. Mot. Dis-

miss at 27, ECF No. 47.) The Court disagrees. Depriving a student of a procedurally

adequate hearing by making unsubstantiated credibility conclusions about the com-

plainant is "fundamentally unfair." Purdue, 928 F.3d at 664. Moreover, the Purdue

panel implied that harmless error analysis is not appropriate for this type of proce-

dural defect. Cf. id. ("Sermersheim and the Advisory Committee may have concluded

in the end that John's impeachment evidence did not undercut Jane's credibility. But

their failure to even question Jane or John's roommate to probe whether this evidence

was reason to disbelieve Jane was fundamentally unfair to John."). In the criminal

trial context, inferring prejudice is appropriate for those structural errors that result

in a "fundamentally unfair" proceeding. See generally Weaver v. Massachusetts, 137

S. Ct. 1899, 1907–08 (2017). By analogy, John does not need to make a specific show-

ing of prejudice resulting from IU's unsubstantiated credibility conclusions, which

made his hearing "fundamentally unfair."

In sum, John has sufficiently alleged that his hearing was procedurally defective

because it was a "sham."5

C. John has not waived his due process rights.

According to IU, even if John has established a deprivation of his liberty interest,

his suit should be dismissed because he waived any relevant due process rights as a

matter of strategic choice—that is, IU says that John and his counsel strategically

chose to proceed at the hearing without Jane so that they could present a one-sided

case. (Defs.' Br. Supp. Mot. Dismiss at 23, ECF No. 47.) Certainly, an individual may

waive his procedural due process rights if such waiver is knowing and voluntary. See

Domka v. Portage Cty., Wis., 523 F.3d 776, 781 (7th Cir. 2008). And, at least in some

contexts, "a strategic choice provides strong evidence of waiver." United States v.

Hunt, 930 F.3d 921, 924 (7th Cir. 2019) (conditions of supervised release); United

States v. Butler, 777 F.3d 382, 387 (7th Cir. 2015) (U.S. Sentencing Guidelines calcu-

lation); United States v. Cooper, 243 F.3d 411, 417 (7th Cir. 2001) (evidentiary objec-

tion). Assuming the doctrine of waiver by strategic choice applies to John's discipli-

nary hearing, the Court still cannot infer that the complainant's absence was a mat-

ter of John's strategic choice. Nowhere does John plead that he wanted to avoid con-

fronting Jane for his own advantage. The complaint, viewed in the light most favor-

able to John, simply does not give rise to any such inference. Thus, John has not

waived his due process rights.

5 Deciding whether John had the right to cross-examine Jane is unnecessary at this point because

the Court has found that John has sufficiently alleged that the hearing was defective on other

grounds.

D. John has standing to request the injunctive relief sought.

IU concedes that John has standing to request expungement of his disciplinary

record. (Defs.' Br. Supp. Mot. Dismiss at 26, ECF No. 47.) But IU contests John's

standing to seek other parts of the equitable relief demanded: reinstating John as a

student and providing him a new disciplinary process consistent with due process;

immediately allowing John to enroll in courses for the current term; and rescinding

negative academic consequences stemming from the discipline. (Compl. at 40–42,

ECF No. 43.)

To have standing at this stage, John must allege "(1) an injury in fact, (2) a suffi-

cient causal connection between the injury and the conduct complained of, and (3) a

likelihood that the injury will be redressed by a favorable decision." Simic v. City of

Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (citing Susan B. Anthony List v. Driehaus,

573 U.S. 149, 157–58 (2014)). Contrary to IU's assertions, John has alleged that he

intends to return to campus to complete his undergraduate degree. (Compl. ¶ 112,

ECF No. 43.) John's case is therefore distinguishable from Purdue, where requests

for comparable injunctive relief were dismissed for lack of standing because the plain-

tiff had failed to allege that he intended to return to Purdue. 928 F.3d at 666. Fur-

thermore, John has amply alleged how the disciplinary hearing has directly and con-

cretely harmed him. (See, e.g., id. at ¶¶ 11, 110, 148, 154–155, 164–165, 180.) The

relief sought would clearly redress his injuries. John therefore easily has standing to

seek the above relief.

E. The individual Defendants are proper at this stage.

Even if John had properly pleaded facts demonstrating a procedurally defective

disciplinary hearing, IU contends that he lacks standing to sue the individual De-

fendants. Specifically, IU's main argument here is that John's amended complaint

merely alleges a substantive disagreement with each Defendant's ultimate finding of

guilt, something the courts are not in the business of reviewing. See Medlock v. Trs.

of Ind. Univ., No. 1:11-CV-00977-TWP, 2013 WL 1309760, at *6 (S.D. Ind. Mar. 28,

2013), aff'd, 738 F.3d 867 ("It is the Court's job to determine whether Mr. Medlock

received adequate due process under the circumstances, not to review the decision of

the university or second-guess the university officials' determination as to what con-

stitutes a 'threat of disrupting the academic process.'").

But John has sufficiently alleged at least one procedural defect here. See Part

III.B., supra. Moreover, John has alleged that each named Defendant played a part

in that purported deprivation of his liberty interest. Spotts prevented John's sister

from opining on Jane's motivation for making a false accusation. (Compl. ¶¶ 104–

106, 142, ECF No. 43.) The commissioners made credibility determinations about

Jane without actually evaluating her credibility, by testimony or otherwise. (Id. at

¶¶ 14, 79, 104, 168.) Given that John has adequately pleaded that his hearing was

defective by reason of unsubstantiated credibility determinations, Spotts and the

commissioners were sufficiently involved in IU's conduct such that John has standing

against them.

Finally, John alleges that Provost Robel placed improper weight on the criminal

charge, (id. ¶¶ 83–90), and denied John's appeal, (id. ¶ 83). The first charge is not

misconduct. See Part III.B, supra. The second charge does not state a claim against

Robel either, as the Due Process Clause does not guarantee a right to appeal even in

the trial context. See, e.g., Griffin v. Illinois, 351 U.S. 12, 18 (1956). John has, how-

ever, alleged that one of Provost Robel's duties is ensuring that IU complies with due

process mandates. (Compl. ¶ 36, ECF No. 43.) That fact is enough, for now, to keep

Robel as a defendant.

F. The University officers can be subject to a § 1983 suit for injunctive relief.

IU argues that John's § 1983 claims against the Trustees, Robel, Spotts, and the

commissioners in their official capacities are barred. State university officers acting

in their official capacities are not "persons" who can be sued for damages under

§ 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Kashani v.

Purdue Univ., 813 F.2d 843, 845 (7th Cir. 1987). But official-capacity suits against

state officers for injunctive relief are permitted under § 1983 and are not barred by

the Eleventh Amendment. See Will, 491 U.S. at 71 n.10 (citing Ex parte Young, 209

U.S. 123, 159–160 (1908)); Power v. Summers, 226 F.3d 815, 819 (7th Cir. 2000);

Kashani, 813 F.2d at 848. Accordingly, to the extent John seeks monetary damages

from Defendants in their official capacities, his claims are dismissed with prejudice.

To the extent John similarly seeks injunctive relief, his claims may proceed.

G. The Court reserves ruling on whether Defendants are entitled to qualified im-

munity.

Defendants assert qualified immunity to the extent John seeks damages from De-

fendants in their personal capacities. State "officers are entitled to qualified immun-

ity under § 1983 unless (1) they violated a federal statutory or constitutional right,

and (2) the unlawfulness of their conduct was 'clearly established at the time.'" Dis-

trict of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (citation omitted). Although

there is "no hard-and-fast rule" against it, Purdue, 928 F.3d at 665, "a complaint is

generally not dismissed under Rule 12(b)(6) on qualified immunity grounds," Al-

varado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). That is because qualified im-

munity often "depend[s] on the particular facts of a given case," Jacobs v. City of Chi-

cago, 215 F.3d 758, 765 n.3 (7th Cir. 2000), which are often not sufficiently developed

at the pleading stage.

The Court will reserve ruling on whether Defendants have qualified immunity

until a later stage in litigation. After Purdue, it is at least clearly established that a

student can state a claim based on a state university's deprivation of his liberty in-

terest. 928 F.3d at 665–66. But John's case is different enough from Purdue that

specific facts will affect the Court's decision on qualified immunity. For instance, one

of John's allegations is that IU's failure to provide him an opportunity to confront his

accuser rendered the disciplinary hearing fundamentally unfair. (Compl. ¶ 132, ECF

No. 43.) The Seventh Circuit, however, has never ruled on whether a student has a

right to cross-examination in these circumstances. See Purdue, 928 F.3d at 664 n.4

(declining to reach the issue of whether the plaintiff was entitled to cross-examine

his accuser because the hearing was procedurally defective on other grounds). If John

can cure the pleading defects identified in this order, and if after discovery John's

constitutional claims hinge on an alleged right to cross-examine and the Court recog-

nizes that right, Defendants would be entitled to qualified immunity; on the other

hand, if John's claims ultimately hinge on procedural deficiencies like those found in

Purdue, Defendants would not be so entitled. Thus, waiting to rule on qualified im-

munity is prudent.

IV. Conclusion

Defendants' motion to dismiss, (ECF No. 46), is granted. John's claims are dis-

missed without prejudice. John is granted leave to amend within twenty-one

days of this order's issuance.

SO ORDERED.

Date: 10/26/2020

JAMES R. SWEENEY II, JUDGE

United States District Court

Southern District of Indiana

Distribution:

Tracy Nicole Betz

TAFT STETTINIUS & HOLLISTER LLP (Indianapolis)

thetz@taftlaw.com

Vivek Randle Hadley

TAFT STETTINIUS & HOLLISTER LLP (Indianapolis)

vhadley@taftlaw.com

Eric J. Rosenberg

ROSENBERG & BALL CO. LPA

erosenberg@rosenbergball.com

Michael C. Terrell

TAFT STETTINIUS & HOLLISTER LLP (Indianapolis)

mterrell@taftlaw.com

22