The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JOHN DOE CIVIL ACTION
VERSUS
LOUISIANA STATE UNIVERSITY, ET NO.:20-00379-BAJ-SDJ
AL.
RULING AND ORDER
Before the Court is Plaintiff’s Motion for a Temporary Restraining Order
and Preliminary Injunction (Doc. 3). Plaintiff asks the Court to order
Defendants, Louisiana State University (“LSU”) and interim President Thomas
Galligan, to provide him a hearing before the University Hearing Panel (“UHP”) and
to lift the sanctions placed on him pending the outcome of the UPH decision.
Defendants filed an opposition to the Motion (Doc. 17). For the reasons stated herein,
Plaintiff’s Motion is DENIED.
I. BACKGROUND
Plaintiff John Doe, a student-athlete at LSU, alleges that on February 4, 2020,
he was informed by Defendants that another student, identified herein as “Jane Roe,”
filed a report accusing him of sexual misconduct.1 On February 19, 2020, Plaintiff
met with Jeff Scott, LSU’s Title IX Lead Investigator, who interviewed him regarding
the events described in the report. On March 6, 2020, Plaintiff was notified, in
1 Due to the nature of the underlying allegations, Plaintiff filed a motion asking to proceed with this
lawsuit using the “John Doe” pseudonym. (Doc 2). His motion was granted. (Doc. 19).
writing, that Scott found him responsible for the sexual misconduct alleged by Jane
Roe. Defendants advised Plaintiff that he could appeal Scott’s decision to the Title IX
Coordinator, Jennie Stewart. Plaintiff timely appealed, and following a review, the
Title IX Coordinator later upheld Scott’s findings. Defendants then notified Plaintiff
that he was entitled to attend a meeting with Jonathan Sanders, Director of Student
Advocacy and Accountability, to further discuss the report and decisions. Plaintiff
attended this meeting.
On May 1, 2020, Defendants notified Plaintiff by letter that they found him
responsible for the sexual misconduct reported by Jane Roe and that he would be
suspended from LSU for a period of one year. In the letter, Defendants also offered
Plaintiff the opportunity to request a University Panel Hearing (“UHP”) review
within three days of his receipt of the letter. Plaintiff requested the UHP review on
May 12, 2020, several days past the three-day deadline. (Doc. 23 at p.3). Defendants
sent a letter to Plaintiff acknowledging the receipt of his request and informing him
that he would be notified of the “date, time and location” of the hearing at a later
date. However, on June 5, 2020, LSU sent Plaintiff another letter notifying him that
his request for a UHP review was denied because “the time frame . . . to request a
University Hearing Panel has expired.” (Doc 3, Exhibits 1 and 2).
A. Suit and Preliminary Injunction
On June 18, 2020, Plaintiff filed a Complaint against Defendants asserting
violations under Title IX of the Education Amendments Act of 1972, 42 U.S.C. § 1983,
and alleging Breach of Contract under Louisiana law. (Doc. 1). The same day,
Plaintiff also filed a Motion for Temporary Restraining Order and a Preliminary
Injunction. Plaintiff alleges that throughout the investigation he was never given the
“opportunity to make arguments to a panel of decision-makers, participate at a
hearing, and prepare for and present a case, and cross-examine witnesses, or procure
expert testimony.” (Doc. 3 at p. 1). Plaintiff alleges that Defendants denied him the
bare-minimum procedures outlined in LSU’s policy and deprived him of a hearing or
the ability to review evidence against him until after Defendants found him
responsible. (Id.)
Plaintiff alleges three violations of school policy regarding the investigation
process. First, Plaintiff asserts that, according to Defendants’ Permanent
Memorandum 73-Title IX and Sexual Misconduct Policy (“PM-73”), he should have
been notified in writing as to the date, time, and location of the formal resolution
process. Plaintiff claims he received no such notice. (Id. at p. 2). Plaintiff further
claims that he only received notice after a formal resolution process had taken place
and he was determined to be responsible for the alleged misconduct. (Id.).
Second, Plaintiff asserts that, according to the Defendants’ policy, a Student
Advocacy and Accountability Meeting is an informal administrative meeting in which
a charged student is asked to share information about the incident before a
determination of responsibility is made. Plaintiff claims that he attended the Student
Advocacy and Accountability Meeting but was only asked questions concerning his
character. Plaintiff claims that he was not given the opportunity to share any
information or details about the incident. (Id. at p. 3). Soon after this meeting,
Defendants issued Plaintiff an outcome letter notifying him that LSU found him
responsible for sexual misconduct.
Third, Plaintiff asserts that University policy allows a student to request a
UHP review within three days of receipt of the outcome letter. Plaintiff received his
outcome letter on May 1, 2020. Plaintiff claims that he did not understand the
significance of the letter until May 8, 2020, and immediately sent notice of his request
for a UHP review to Defendants on that day. (Doc. 3-1). Plaintiff claims that
Defendants acknowledged the receipt of Plaintiff’s request on May 12, 2020, and
agreed to stay Plaintiff’s suspension, and that LSU allowed him to enroll in an
intersession course at the University pending the outcome of the UHP review. (Id.).
Plaintiff alleges that on June 5, 2020, he was notified that Defendants had rejected
his request because LSU deemed it to have been filed untimely. His suspension was
then reinstated. (Doc. 3-2).
Plaintiff alleges that Defendants have unfairly blamed him for his failure to
understand its “incomprehensible policies” and that, in contrast, Defendants have
been in frequent contact with Jane Roe to specifically explain the disciplinary policies
and procedures to her. (Id.). Plaintiff alleges that Jane Roe received preferential
treatment from Defendants. He also alleges that Defendants have blatantly
discriminated against him on the basis of sex and have deprived him of critical due
process rights. Plaintiff claims that the Defendants’ investigation and review
procedures were unfair and rushed, and resulted in his suspension from the
university, led to his removal from the football team, and caused the loss of his full
athletic scholarship. (Id. at p. 4). Plaintiff requests the Court to order Defendants to
give Plaintiff a hearing before the UHP and lift the sanctions imposed on him pending
the outcome of the UHP hearing.
In his pleadings and arguments, Plaintiff argues that his reputation and
education are the liberty and property interests at stake in this litigation. Plaintiff
also argues that the notice and opportunity to be heard during and after the
investigation were deficient. Plaintiff further argues that his request for a UHP
review was not untimely because Governor John Bel Edwards issued an Executive
Proclamation, in response to the COVID-19 pandemic, that had the effect of
extending the deadline for him to seek a hearing before the UHP to May 15, 2020.
Defendants dispute the applicability of the Governor’s Proclamation to this
matter and argue that Plaintiff was afforded sufficient due process because he was
given notice and the opportunity to be heard at three different intervals during the
investigation: the meeting with the Title IX investigator, the Title IX appeal stage,
and the Student Advocacy and Accountability Meeting. Defendants argue that
Plaintiff would have had an opportunity to be heard a fourth time–at the UHP review
level –had he timely requested it. Defendants also argue that Plaintiff should not now
be granted a UHP review because of concerns regarding the equal application of the
university rules. In other words, to now accommodate the Plaintiff with a review by
the UHP, despite his untimely request, would serve to afford Plaintiff a benefit to
which other students are not entitled.
Moreover, Defendants assert that now that the Plaintiff has been suspended
from LSU, granting the TRO will not return him to the status of a student in good
standing at the University because the suspension has already taken place. In other
words, his request that the Court order, through a TRO, that the status quo be
maintained is actually a request for the Court to reverse the decisions of University
officials, which is improper at this stage of the litigation.
At the conclusion of the evidentiary hearing in this matter, the parties were
permitted to file post-hearing briefs that specifically addressed the applicability of
the Governor’s Proclamation and the possible irreparable injury to the Plaintiff.
Plaintiff argues in the brief that the Governor’s Proclamation extended the deadline
for the UHP review beyond the three-day request period because as a state board,
Defendants are subject to Section 5(H) of the Governor’s Order, which requires the
suspension of certain deadlines. (Doc. 25 at p. 2). Plaintiff further argues that
Defendants had previously excused Plaintiff’s late request for the UHP review on
May 12, 2020, but Defendants improperly revoked the UHP review request nearly a
month later. (Id. at p. 3).
Defendants argue in their brief that Section 5(H) of the Governor’s
Proclamation is inapplicable to this matter because the UHP review deadline is not
a legal deadline required to be extended. They argue that is, instead, a non-essential
deadline and that the Governor’s Proclamation merely provided LSU with the
flexibility to extend administrative deadlines if they deemed it necessary to do so.
(Doc. 24 at p. 5). Defendants further argue that Plaintiff did not plead or produce
evidence that he actually relied on the Governor’s Proclamation when he submitted
his untimely request for the UHP review.
Regarding Plaintiff’s claim of irreparable injury, he argues that if Defendants
are not required to stay his suspension pending the outcome of the UHP review, he
faces the injury of being irreversibly branded as a sexual predator and that a
permanent gap will be featured on his academic record. (Doc. 24 at p. 4). Plaintiff
further argues that the loss of his ability to play college football is another irreparable
injury that may result from the unfair process and sanctions. Plaintiff asserts that
had he received a proper disciplinary process and the ability to adequately defend
himself, he would not have been suspended from the University and removed from
the football team. (Id. at p. 5).
Defendants counter that Plaintiff has failed to establish a substantial threat
of irreparable injury. They assert that “the notion of irreparable injury only refers to
harm that might occur pendente lite if the preliminary injunction is not granted.”
(Doc. 24 at p. 2). Defendants argue that since Plaintiff has already been suspended,
he now seeks to upset, not preserve, the status quo. (Id.). Defendants additionally
note that Plaintiff has been suspended, not expelled; thus, he will not be permanently
prevented from resuming his academic career after his suspension has concluded.
Defendants assert that to the extent Plaintiff has a protected interest in pursuing
higher education, then he has not been deprived of this right, it has only been delayed.
(Id.). Defendants further assert that Plaintiff’s argument that he will be harmed by
having to explain the gap in his academic record is too speculative to warrant
injunctive relief. (Id. at p. 4).
II. LEGAL STANDARD
The party moving for a temporary restraining order must establish “(1) a
substantial likelihood of success on the merits; (2) a substantial threat that the
movant will suffer irreparable injury if the injunction is denied; (3) that the
threatened injury outweighs any damage that the injunction might cause the
defendant; and (4) that the injunction will not disserve the public interest.” Jackson
Women’s Health Org. v. Currier, 760 F.3d 448, 452 (5th Cir. 2014) (quoting Hoover v.
Morales, 164 F.3d 221, 224 (5th Cir. 1998)). A temporary restraining order “is an
extraordinary remedy [that] should not be granted unless the party seeking it has
clearly carried the burden of persuasion on all four requirements.” PCI Transp., Inc.
v. Fort Worth & Western R. Co., 418 F.3d 535, 545 (5th Cir. 2005). When Plaintiff fails
to satisfactorily show one of the prerequisites for injunctive relief, the Court need not
consider the remaining factors. See Roho, Inc. v. Marquis, 902 F.2d 356, 361 (5th Cir.
1990).
III. DISCUSSION
A. The Governor’s Proclamations
Beginning in March 2020, Louisiana Governor John Bel Edwards issued a
series of executive proclamations in response to the COVID-19 pandemic. Plaintiff
submitted Proclamation Number 52 JBE 2020, issued in April 2020, in support of his
assertion that the three-day deadline imposed on May 1, 2020 was extended to May
15, 2020, by order of the Governor. Section 5(H) of the Proclamation, entitled “LEGAL
AND ADMINISTRATIVE DEADLINES,” expressly addressed the suspension of
specific “[l]egal deadlines . . . applicable to legal proceedings in courts, administrative
agencies and boards,” until Friday, May 15, 2020. Section 5(H)(1) provides an
illustrative list of statutes and regulations to which the suspension applies. The
examples listed include, inter alia, the Louisiana Civil Code, Louisiana Code of Civil
Procedure, Louisiana Code of Criminal Procedure, Louisiana Children’s Code, Motor
Vehicle and Traffic regulations, Revenue and Taxation statutes Wildlife and
Fisheries statutes and several other titles of the Louisiana Revised Statutes. Section
5(H)(2) provides that “all other deadlines in legal proceedings in all courts,
administrative agencies, and boards shall remain suspended until Friday, May 15,
2020.” (emphasis added).
Section 5(I) of the Proclamation provides, “any state department or agency or
political subdivision is hereby granted authority to further extend any non-essential
deadline for a period of no longer than 30 days if deemed necessary to respond to the
threat of COVID-19.” Defendants argue that to the extent the Governor’s
Proclamation applies to the disciplinary proceeding it conducted in this matter,
Section 5(I) applied to such proceedings and must be interpreted as having provided
LSU with the discretion to extend any non-essential deadline that it, the University,
considers to be a “non-essential.”
The applicability of Section 5(H) of the Proclamation to the disciplinary
proceedings conducted by LSU turns on whether such a university disciplinary
proceeding is a “legal proceeding.” Although the parties did not specifically address
the issue, the Court must conclude, at this stage of the proceedings, that the student
disciplinary proceeding conducted here was not a legal proceeding that was subject
to the Proclamation. Nothing in the record indicates that the disciplinary procedure
featured sworn testimony, arguments by the parties or their representatives, the
service of subpoenas or other discovery, an accurate recordation of the proceedings, a
hearing officer, a legal analysis that supported the outcome or any other indicia of
that which is commonly considered to be a legal proceeding. To be sure, the procedure
conducted by LSU may have ultimately resulted in the initiation of legal proceedings,
but no legal proceedings were conducted up to that point. As the United States
Supreme Court has noted, “a school is an academic institution, not a courtroom or
administrative hearing room.” Board of Curators of the University of Missouri v.
Horowitz, 435, U.S. 78,88 (1978).
Moreover, the plain language of Section 5(H) and the illustrative list of
statutory and regulatory provisions included in it reveal that the Proclamation is
applicable to legal proceedings conducted by courts in Louisiana and state agencies
responsible for the enforcement of Louisiana statutes and regulations. In contrast,
the student disciplinary process featured here appears to have been conducted not
pursuant to Louisiana law but in conformity with guidance offered by the United
States Department of Education and requirements under Title IX of the Education
Amendments of 1972, a federal statute to which the Proclamation by the state’s
governor does not seem to apply, especially when read in context with the specific
state provisions listed in the Proclamation. Thus, the applicability of the
Proclamation over the disciplinary proceedings is uncertain.
Because the UHP review deadline was not imposed as a part of a legal
proceeding within the meaning of Section 5(H), the Court finds that the UHP review
deadline was a non-essential deadline and that Defendants were entitled to extend it
up to 30 days if they deemed it necessary to do so. Thus, the Court must conclude at
this stage of the proceedings that Defendants were not in violation of the
Proclamation by declining to extend the UHP review deadline beyond the three-day
period.
B. Likelihood of Success on the Merits
The Court finds that Plaintiff has not demonstrated a substantial likelihood of
success on the merits of his Title IX claim at this stage of the proceedings. This is not
to say, however, that he may not ultimately prevail on the merits of his claim.
However, he has not pleaded sufficient facts to lead the Court to conclude that he is
likely to prevail.
Plaintiff asserts Title IX liability under the theories of selective enforcement
and erroneous outcome. To succeed on a selective enforcement theory, Plaintiff must
show that regardless of his guilt or innocence, the decision to initiate the disciplinary
proceedings against him and/or the severity of his punishment was affected by his
gender. See Klocke v. Univ. of Texas at Arlington, 938 F.3d 204 (5th Cir. 2019). But
here, Plaintiff has not pointed to any facts that persuade the Court that his gender
was a motivating factor in Defendants’ decision to suspend him. To succeed on the
erroneous outcome theory, Plaintiff must show a causal connection between the
flawed outcome and gender bias. Klocke, 938 F.3d at 210. Plaintiff attempts to
establish the claim by alleging that Jane Roe received preferential treatment during
the Title IX investigation. Yet Plaintiff has not pointed to any facts, other than his
assertion that University officials met with her on several occasions, to convince the
Court that a causal connection exists between the allegedly erroneous outcome of the
Title IX investigation and Plaintiff’s gender.
Also, Plaintiff has not demonstrated a substantial likelihood of success on the
merits of his due process claim under 42 U.S.C. § 1983. Plaintiff alleges that he was
not afforded notice and an opportunity to be heard; however, as Defendants have
noted, Plaintiff was given notice of the claim against him and was provided three
opportunities to participate in the disciplinary proceedings: (1) he participated in a
meeting with the Title IX lead investigator, (2) he was advised of, and indeed invoked,
his right to seek an appeal with the Title IX Coordinator, and (3) he was advised of
his the opportunity to meet with the Student Advocacy and Accountability director,
and indeed did so.
Courts assess due process in a university disciplinary proceeding by
considering: (1) the student’s interests that will be affected, (2) the risk of an
erroneous deprivation of such interests through the procedures used and the probable
value of additional or substitute procedural safeguards, and (3) the university’s
interest, including the burden that additional procedures would entail. Plummer v.
Univ. of Houston, 860 F.3d 767, 773 (5th Cir. 2017). Here, the Court finds that
Plaintiff has established, as required by the first factor, that his interest will be
affected by LSU’s refusal to provide a UHP review. Currently, the Plaintiff is
suspended from the University and cannot complete the degree requirements or
return to the football team. His interests here cannot be disputed. However, the Court
cannot conclude, at this stage, that Plaintiff was erroneously deprived of these
interests by the procedure used by LSU. As noted, LSU asserts that Plaintiff was
provided sufficient due process throughout the disciplinary procedures and that no
additional safeguards were warranted. The Court agrees. The evidence presented
thus far suggests that the notice LSU provided to Plaintiff, informing him of the
allegations and providing him the opportunity to seek UHP review, was clear and
unambiguous. Thus, the second factor weighs against Plaintiff. The third factor
weighs in LSU’s favor, as “the University has a strong interest in the educational
process, including maintaining a safe learning environment for all its students, while
preserving its limited resources.” See Doe v. Univ. of Mississippi, 361 F.Supp.3d 597
(S.D. Miss. 2019), quoting Doe v. Cummings, 662 F.App’x 437, 466 (6th Cir. 2016).
Thus, at this stage of the case, the Court cannot readily conclude that Plaintiff can
demonstrate a due process violation.
The Court also finds that Plaintiff has failed to demonstrate a substantial
likelihood of success on his breach of contract claim under Louisiana law. The State
of Louisiana has not waived its sovereign immunity to be sued for breach of contract
in federal court and the State did not waive it in this matter. See La. R.S. 13:5106(A).
The United States Court of Appeals for the Fifth Circuit has held that a breach of
contract claim against LSU in federal court is barred by the Eleventh Amendment
under La R.S. 13:5106(A). See Raj v. Louisiana State University, 714 F.3d 322, 329
(5th Cir. 2013).
C. Irreparable Harm
A plaintiff seeking a preliminary injunction must show that irreparable injury
will occur during the pendency of the litigation unless a preliminary injunction issues.
Justin Inds., Inc. v. Choctaw Secs., L.P., 920 F.2d 262, 268 (5th Cir. 1990). A harm
is irreparable where there is no adequate remedy at law, such as monetary damages.
Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011). A showing of a speculative injury
is not sufficient; there must be more than an unfounded fear. Id. (citing Carter v.
Heard, 593 F.2d 10,12 (5th Cir. 1979)).
Defendants cite Pham v. Univ. of Louisiana at Monroe, 194 F.Supp.3d 534, 548
(W.D. La. 2016), aff’d sub nom. Dung Quoc Pham v. Blaylock, 712 Fed.Appx 360
(5th Cir. 2017), in support of their contention that preservation of the status quo,
technically speaking, will not assist the Plaintiff. In Pham, an expelled pharmacy
student brought a lawsuit against his university for the failure to comply with due
process before his expulsion. He also requested a preliminary injunction. The district
court found that since plaintiff had already been expelled at the time he filed his suit,
there was “no threat of irreparable injury or reason to preserve the status quo because
the status quo is not what is desired.”
Plaintiff’s preliminary injunctive relief request here includes a UHP review
and the reinstatement of his status as a student and member of the football team.
The purpose of a preliminary injunction is to preserve the status quo and prevent
irreparable harm until the respective rights of the parties can be ascertained during
a trial on the merits. Exhibitors Poster Exchange, Inc. v. National Screen Service
Corp.,441 F.2d 560, 561 (5th Cir. 1971).
The Court finds that because Plaintiff had already been suspended when he
filed suit, preservation of the status quo will not aid him. Moreover, because the Court
has found the Governor’s Proclamation to be inapplicable to Plaintiff’s request for an
extension of the UHP review deadline, the Plaintiff’s status quo request is untimely.
In fact, as the Defendants point out, the relief requested by Plaintiff would upset the
status quo, not preserve it.
Regarding Plaintiff’s allegations that a lapse in his education record, inability
to play football, and possible branding as a sexual predator will result in irreparable
harms, he offers rulings from several district courts and the United States Court of
Appeals for the Sixth Circuit in support of his arguments. (Doc. 25 at p. 4).2 Numerous
2 King v. DePauw Univ., No. 2:14-CV-70-WTL-DKL, 2014 WL 4197507, at *1 (S.D. Ind. 2014);
Marshall v. Ohio University, No. 2:15-CV-775, 2015 WL 1179955, at *1 (S.D. Ohio 2015);
Doe v. University of Connecticut, No. 3:20CV92 (MPS), 2020 WL 406356, at *1 (D. Conn. 2020);
Doe v. Pennsylvania State University, 276 F.Supp.3d 300 (M.D. Pa. 2017); Doe v. University of
Cincinnati, 872 F.3d 393, 407 (6th Cir. 2017).
courts have found irreparable harm based on a suspension alone; whereas, other
courts found irreparable harm when additional factors, specific to each plaintiff’s
situation, was considered.3
The Court notes that the Plaintiff has not pointed to, and the Court has not
found, cases in which the Fifth Circuit has recognized that a suspension from a
university is an irreparable harm. While the Court recognizes that Plaintiff’s alleged
harms carry potentially far-reaching and serious consequences, it must conclude at
this stage of the litigation that such possible harms are far too speculative to
constitute an irreparable harm that is likely to occur if injunctive relief is not granted.
For instance, it is not certain that Plaintiff will be branded a sexual predator or that
he will someday have to explain any gap in his educational career. Moreover, the
assertion that Plaintiff’s desired professional football career would be compromised
if he must await a trial on the merits of his claim is entirely speculative. Because
Plaintiff is suspended and not expelled, his education and football career are delayed
but not irrevocably denied.
3 In Doe v. University of Connecticut, the plaintiff had one semester remaining until graduation when
he was suspended. The plaintiff had already begun to apply for jobs, so the court found that not
granting injunctive relief to stay the two-year suspension would cause irreparable harm. In Doe v.
Pennsylvania State University, the court found irreparable harm because the broad language of
Plaintiff’s sanction could extend the two-year suspension for many years beyond.
IV. CONCLUSION
Accordingly, for the reasons provided herein,
IT IS ORDERED that Plaintiff’s Motion for Temporary Restraining Order
and Preliminary Injunction (Doc. 3) is DENIED.
Baton Rouge, Louisiana, this 21st day of July, 2020
______________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA