The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ANDREW BABINSKI CIVIL ACTION
VERSUS 20-426-SDD-EWD
TODD QUEEN, ET AL.
RULING
This matter is before the Court on the Motion to Dismiss1 filed by defendants,
Kristin Sosnowsky (“Sosnowsky”), Shannon Walsh (“Walsh”), John Fletcher (“Fletcher”),
and Alan Sikes (“Sikes”) (collectively “Defendants”). Plaintiff Andrew Babinski (“Babinski”)
filed an Opposition,2 to which Defendants filed a Reply.3 For the following reasons,
Defendants’ Motion shall be granted in part and denied in part.
I. BACKGROUND
A. Plaintiff’s Allegations
This is a free speech case. Babinski was a student in the Louisiana State University
(“LSU”) School of Theatre Ph.D. program (“the Program”).4 Sosnowsky is alleged to be
the Chair of the LSU School of Theatre as well as a faculty member.5 She is sued in her
official and individual capacities.6 Walsh, Fletcher, and Sikes are alleged to be faculty
1 Rec. Doc. No. 32.
2 Rec. Doc. No. 38.
3 Rec. Doc. No. 39.
4 Rec. Doc. No. 28, p. 1–2.
5 Id. at 2.
6 Id.
members of the School of Theater, and they are sued in their official and individual
capacities.7
Babinski enrolled in the Program in 2017, and Sosnowsky appointed him as a
graduate assistant when he enrolled.8 Fletcher appointed Babinski to be his teaching
assistant in Babinski’s second semester.9 In the spring semester of 2019, Babinski
enrolled in Walsh’s course “Gender, Sexuality, and Performance.”10 Babinski alleges that
the Program advertised the course as an “academic discussion about gender and
sexuality in performance,” but in reality it was a “liberal indoctrination course where
opposing opinions and critical discussion were often met with hostility from certain
students and Professor Walsh, herself.”11 Babinski voiced unpopular opinions in class,
and he alleges that Walsh and his classmates rewarded him with abuse and
mistreatment.12 Babinski attempted to discuss his concerns around midterms with Walsh,
but Walsh allegedly dismissed his “concerns and escalated the pattern of mistreatment,
even telling Babinski that he deserved the harm he’d experienced in class.”13
Babinski used the course’s final paper to express his concerns about the “Gender,
Sexuality, and Performance” course and the Program as a whole.14 He alleges he used
“performative writing” to express that he felt mistreated and discriminated against when
he expressed his views inside and outside of class.15 Babinski allegedly learned about
7 Id. at 2–3.
8 Id. at 3–4.
9 Id. at 4.
10 Id. at 5.
11 Id.
12 Id.
13 Id.
14 Id. at 6.
15 Id.
performative writing from Walsh and others on the faculty.16 According to Babinski,
performative writing is:
[A] style whereby the writer is trying to perform a concept or idea through
language, manner, and form, in addition to its content. It is most often done
by liberal, feminist, anti-racist scholars as a means of trying to use words to
create a sensation of the very experience they are describing. As a
performance makes you “feel something” in an effort to make you
understand another person’s life, this form of writing seeks to do the same—
not through only describing it, but in the process of actually sensorially
experiencing something.17
Babinski’s final paper allegedly included expletives and harsh criticism of faculty members
and peers—but no threats.18 It purportedly included the disclaimer that “his writing was
performative and exaggerated.”19 In the paper, Babinski asked that Walsh share the
paper with Fletcher and Sikes and requested that the three of them meet to discuss
Babinski’s concerns about the Program.20 Walsh took it a step further.
Walsh forwarded the paper to Sosnowsky who then forwarded it to the LSU Police
Department (“LSUPD”) and the LSU Office of Student Advocacy and Accountability.21
The LSUPD allegedly found that the paper presented no actionable security issues, and
the Office of Student Advocacy and Accountability allegedly found no violation of LSU
policies and refused to issue a “no contact directive.”22 Babinski alleges that the
Program’s faculty took his discipline into their own hands.
Walsh allegedly failed Babinski for the course, causing him to fall into academic
probation, and Sosnowsky revoked his graduate assistantship because he was placed
16 Id. at 7.
17 Id. at 6.
18 Id. at 7.
19 Id.
20 Id.
21 Id.
22 Id. at 8.
on academic probation.23 As a result, Babinski lost his graduate assistantship stipend, his
tuition waiver, and his non-resident fee waiver.24 Babinski alleges that he attempted to file
a grade appeal.25 Babinski alleges that, per LSU regulations, the first step in that process
is “the student and faculty member must have a discussion and attempt to arrive at a
solution.”26 He alleges that this, and other grade appeal procedures, were not followed
because Walsh and Sosnowsky refused to meet with him in person.27 According to
Babinski, Sosnowsky refused to “petition the graduate school for a graduate assistantship
waiver for Babinski, even though, upon information and belief, Professor Sosnowsky
regularly made such petitions for students who fell into academic probation for the first
time.”28 Babinski allegedly sought to make amends over the summer.
According to Babinski, his entreaties to Defendants over the summer were met
with silence.29 Defendants allegedly “collectively” decided that they would refuse to teach,
and administer exams to, Babinski.30 This decision was made at a meeting ten days
before the beginning of the fall 2019 semester, and Babinski was not allowed to attend
the meeting.31 Instead, one of the attendees summarized a statement Babinski had
provided.32 Babinski alleges that this meeting did not conform to LSU policies regarding
disciplinary and academic proceedings.33 Todd Queen, then-dean of the LSU College of
Music and Dramatic Arts, advised Babinski that given the Defendants’ refusals to teach
23 Id. at 8, 10.
24 Id. at 8.
25 Id.
26 Id. at 10.
27 Id. at 10–11.
28 Id. at 8.
29 Id. at 11.
30 Id.
31 Id.
32 Id.
33 Id.
him, Babinski could not continue in the Program.34 “Dean Queen allegedly misled
Babinski as to various university procedures in furtherance of the determination that
Babinski could not continue in the Program, even though other students were correctly
advised of these procedures and allowed to use them when issues with faculty arose.”35
Sosnowsky was present for this meeting and allegedly subscribed to these false
statements.36
Specifically, Babinski alleges that Queen and Sosnowsky inaccurately told
Babinski that he would not be able to form a dissertation committee because of
Defendants’ refusal to teach him.37 Babinski alleges that this was not true, citing a portion
of the LSU General Catalog.38 Further, Babinski alleges that two months after he was
informed he could not assemble a dissertation committee, Fletcher informed another
student, identified as “S.C.,” that she could assemble a committee with a graduate, “non-
Program theatre professor.”39
Additionally, Babinski alleges that the LSU Ombudsperson advised Babinski,
Sosnowsky, and Queen that she was aware of a situation where “a professor refused to
teach a student even though the professor’s course was required for graduation. LSU
34 Id. at 12.
35 Id.
36 Id.
37 Id.
38 Id. The relevant portion of the General Catalog provides:
At least one-half of the graduate faculty on doctoral committees must be full-time tenured
or tenure-track faculty at LSU. A minimum of two of those faculty members must be from
the student’s major departmentand at least one of whom must be a full member of the LSU
graduate faculty. The remaining members may be from the major department or may be
from outside the department if pertinent to the student’s area of concentration, with the
proviso that at least one of the remaining members must be a full member of the faculty.
39 Id. at 13.
accommodated this student by allowing them to receive credit for the course through
independent study.”40 Queen and Sosnowsky did not give Babinski that opportunity.
Babinski alleges that Sosnowsky sent Walsh and Fletcher the following email in
July 2019, relaying information received from Tracy Blanchard of the Student Advocacy
and Accountability Office: “I also spoke with Tracy regarding Andy’s continuation in the
[P]rogram. We are not able to prevent him from continuing in the [P]rogram should he be
able to pay his tuition.”41
Babinski continued in the Program through the fall 2019 semester.42 He took one
course within the Program and three additional courses for his minor concentration.43 He
allegedly completed the courses without incident.44 Meanwhile, Babinski attempted to
resolve the situation with Defendants, but they refused to reconsider their positions.45 At
the end of the fall 2019 semester, Babinski had only three courses remaining in the
Program in order to reach the “milestone” of completing his coursework which would have
led him to “certain professional benefits and opportunities.”46 Babinski transferred to the
department of philosophy and sued Defendants.47
Babinski brings five constitutional claims. First, Babinski contends that his speech
in and outside of class and in his paper constitutes protected speech.48 He argues that
Defendants’ “decision to refuse to teach Babinski or administer general exams, and
Professor Sosnowsky’s refusal to permit Babinski to continue in the Program, constitute
40 Id.
41 Id. at 15.
42 Id. at 13.
43 Id.
44 Id.
45 Id. at 13–14.
46 Id. at 14.
47 Id.
48 Id. at 15.
a de facto expulsion from the Program resulting from Babinski’s protected speech.”49
Second, Babinski argues that Defendants’ actions after he submitted his paper violated
his right to be free from retaliation for his protected speech.50 Third, Babinski asserts that
he was denied procedural due process prior to his expulsion in violation of the Fourteenth
Amendment.51 Fourth, Babinski asserts a class of one equal protection claim, arguing
that the Defendants’ actions toward Babinski differed considerably from their treatment of
other, similarly situated students without sufficient justification.52 Fifth, Babinski alleges
that Defendants conspired to violate his civil rights.53
Babinski seeks damages as well as injunctive relief. As to the requested injunctive
relief, Babinski asks the Court to issue a permanent injunction mandating that Sosnowsky
reinstate Babinski in the Program and remove all impediments to his completion thereof.54
He also asks the Court to enjoin Defendants from disseminating further information about
this matter, including his paper, and from further disparaging Babinski to other persons.55
B. Procedural History
The Court granted in part and denied in part Defendants’ first Motion to Dismiss.56
The Court found that Babinski had adequately pled First Amendment claims, subject to
the caveat that neither party had briefed whether Babinski’s paper implicated a matter of
public concern—which the Court explicitly stated would require analysis of Babinski’s
49 Id.
50 Id. at 16.
51 Id. at 17.
52 Id. at 18.
53 Id. at 19.
54 Id. at 20.
55 Id. at 21.
56 Rec. Doc. No. 24.
paper itself.57 However, the Court held that Babinski had failed to overcome Defendants’
assertion of qualified immunity and ordered him to file a Rule 7(a) response.58 Babinski
complied,59 and Defendants filed a Reply60 addressing his Response. The Court did not
dismiss Babinski’s First Amendment claims as to Sosnowsky in her official capacity.61
The Court dismissed Babinski’s other claims without prejudice and granted leave to
amend. Babinski filed a First Amended Complaint.62
II. LAW AND ANALYSIS
A. Babinski’s Rule 7(a) Response
To defeat qualified immunity, Babinski must allege that: (1) his constitutional rights
were violated, and (2) the right that was violated was clearly established at the time of the
violation.63 Babinski offers two arguments as to why qualified immunity should be denied.
First, he asserts that, based on the email quoted above, Defendants knew they could not
impede Babinski’s progress in the Program as long as he continued to pay tuition.64
Second, he cites several Supreme Court and Fifth Circuit cases for the proposition that it
was clearly established law that Defendants could not de facto expel Babinski.
The email cannot carry the day for Babinski as to his First Amendment claims. The
referenced email arguably put Defendants on notice that LSU policy prohibited them from
de facto expelling Babinski. However, a violation of LSU policy is not equivalent to a
violation of Babinski’s rights under the First Amendment. Moreover, LSU policy cannot
57 Id. at 12, n. 77, 21–22. Once again, neither party raises the issue, and Defendants do not move to dismiss
Babinski’s First Amendment claims.
58 Id. at 26–28.
59 Rec. Doc. No. 29.
60 Rec. Doc. No. 39.
61 Rec. Doc. No. 24, p. 28.
62 Rec. Doc. No. 28.
63 Sims v. City of Madisonville, 894 F.3d 632, 638 (5th Cir. 2018).
64 Rec. Doc. No. 29, p. 1–2.
serve as clearly established law that Defendants’ de facto expulsion violated Babinski’s
rights under the First Amendment.
The cases Babinski cites are also insufficient. In its prior Ruling, the Court
summarized the parties’ arguments as to which First Amendment standard should apply
to Babinski’s paper.65 In sum, Babinski urged the Court to apply the standard articulated
in Tinker v. Des Moines Independent School District,66 while Defendants advocated for
the more stringent standard provided in Hazelwood School District v. Kuhlmeier.67 The
Court concluded, after substantial analysis, that Tinker applied. The Court concluded in
the alternative that if Hazelwood applied, Babinski’s paper would still be protected speech
as alleged. “Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions. When properly applied,
it protects all but the plainly incompetent or those who knowingly violate the law.”68 At the
time of the alleged violation of Babinski’s First Amendment rights, the law was not clearly
established. As noted above, it was debatable whether Tinker or Hazelwood applied to
his speech. The Court cannot state that the law was clearly established when the
threshold question of which standard to apply was at issue. Moreover, neither Tinker,
which involved students in a public high school wearing black armbands in protest of the
Vietnam War, nor Hazelwood, which involved the free speech rights of public high school
students who authored the school newspaper, are sufficiently factually similar to the
instant case. Defendants are entitled to qualified immunity as to Babinski’s First
Amendment claims. The Court turns to the instant Motion to Dismiss.
65 Rec. Doc. No. 24, p. 12–18.
66 393 U.S. 503 (1996).
67 484 U.S. 260 (1988).
68 Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S. Ct. 2074, 2085, 179 L. Ed. 2d 1149 (2011).
B. Rule 12(b)(6) Motion to Dismiss Analysis
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-
pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”69 The Court
may consider “the complaint, its proper attachments, ‘documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice.’”70 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”71
In Bell Atlantic Corp. v. Twombly, the United States Supreme Court set forth the
basic criteria necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss.
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.”72 A complaint is also insufficient if it merely “tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’”73 However, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that a defendant is liable for the misconduct alleged.”74 In order to
satisfy the plausibility standard, the plaintiff must show “more than a sheer possibility that
the defendant has acted unlawfully.”75 “Furthermore, while the court must accept well-
69 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
70 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio
Equitieis, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
71 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
72 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
[hereinafter Twombly].
73 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted) [hereinafter Iqbal].
74 Id.
75 Id.
pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.’”76 On a
motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as
a factual allegation.”77
Defendants move to dismiss: (1) Babinski’s request that Defendants be enjoined
from continuing to share Babinski’s paper and other disparaging information about him;
(2) Babinski’s due process claims; (3) Babinski’s equal protection claim; and (4)
Babinski’s conspiracy to violate civil rights claims.
Babinski alleges that Walsh, Sosnowsky, and Fletcher shared and continue to
share Babinski’s paper and disparaging information about him. As Defendants note, the
only allegation that bears on whether Walsh, Sosnowsky, and Fletcher continue to do the
complained-of actions is:
Upon information and belief, Professors Walsh, Sosnowsky, and Fletcher
continue to share Babinski’s paper or disparaging information about him
with others both within and without the Department without Babinski’s
permission in an effort to harm Babinski’s reputation, integrity, ability to
continue in [the Program] and ability to transfer schools to complete his
Ph.D. elsewhere.78
Babinski’s allegations that Walsh, Sosnowsky, and Fletcher distributed the paper
and disparaged him several years ago when the facts pertinent to this case were taking
shape does not make it plausible that they continue to do so now. Moreover, while the
Fifth Circuit allows pleading on information and belief to satisfy Rule 12(b)(6), “the
complaint must set forth the factual basis for such belief.”79 The First Amended Complaint
76 Taha v. William Marsh Rice Univ., 2012 WL 1576099, at *2 (S.D. Tex. 2012) (quoting Southland Sec.
Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
77 Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
78 Rec. Doc. No. 28, p. 10.
79 U.S. ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 329 (5th Cir. 2003) (internal citations omitted).
fails to do so. As such, this request for injunctive relief is dismissed without prejudice,
should re-urging for this relief become appropriate.
C. Due Process Claims
“To be entitled to the procedural protections of the Fourteenth Amendment,
[Babinski] must demonstrate he was deprived of either a liberty or a property interest.”80
“[P]roperty interests are created, and their dimensions defined, by existing rules or
understandings that stem from an independent source such as state law-rules or
understandings that secure certain benefits and that support claims of entitlement to
those benefits.”81 Babinski asserts violations of both his property and liberty interests.
The Fifth Circuit has held that there is “no state-created right to graduate-level
education” in Louisiana.82 But Babinski urges that the various property interests he
identifies were created by contract. Louisiana courts have implicitly recognized a
contractual relationship between a student and an educational institution,83 and several
federal courts of appeal have applied the contract theory urged here in comparable
contexts.84 But even though the “catalogues, bulletins, circulars, and regulations of the
institution made available to the matriculant may become part of the contract…,” the
student must establish an “entitlement to a tangible continuing benefit.”85 “In order to
80 Smith v. Davis, 507 F. App'x 359, 362 (5th Cir. 2013).
81 Id.
82 Barnes v. Symeonides, 44 F.3d 1005 (5th Cir. 1995).
83 Babcock v. New Orleans Baptist Theological Seminary, 554 So. 2d 90, 95 (La. Ct. App. 1989), writ denied,
558 So. 2d 607 (La. 1990); Fussell v. Louisiana Bus. Coll. of Monroe, Inc., 519 So. 2d 384 (La. Ct. App.
1988); McKee v. Southfield Sch., 613 So. 2d 659, 661 (La. Ct. App. 1993); Simmons v. Sowela Tech. Inst.,
470 So. 2d 913 (La. Ct. App.), writ denied, 475 So. 2d 1109 (La. 1985).
84 See e.g. Bissessur v. Indiana Univ. Bd. of Trustees, 581 F.3d 599, 601 (7th Cir. 2009); Ikpeazu v. Univ.
of Nebraska, 775 F.2d 250, 253 (8th Cir. 1985).
85 Bissessur, 581 F.3d at 602 (7th Cir. 2009).
establish this type of entitlement, the student must point to an identifiable contractual
promise that the university failed to honor.”86
The Court begins with Babinski’s property interest argument. Babinski asserts that
Defendants violated his procedural due process rights in three ways: (1) Defendants
failed to follow the mandatory procedures for a grade appeal; (2) Defendants stripped him
of his graduate assistantship in violation of LSU policies; and (3) Defendants deprived
him of his entitlement to continued enrollment.87 Defendants counter that: (1) they
followed the procedures for a grade appeal; (2) Babinski’s entitlement to his assistantship
evaporated when he was placed on academic probation; and (3) Babinski has no
protected property interest in maintaining enrollment in a particular academic program.88
Babinski has adequately pled that Walsh and Sosnowsky failed to follow the
procedures for a grade appeal. Babinski alleges that:
[T]he LSU General Catalog under “regulations” requires that, as a first step
in a grade appeal, “the student and the faculty member must have a
discussion and attempt to arrive at a solution.” Professor Walsh refused to
meet with or correspond with Babinski and the [D]efendants did not provide
a substitute, so this procedure was never followed. Similarly, the next step
requires a meeting with the department chair, student, and professor within
14 days. No meeting occurred, as Professor Sosnowsky instead solicited a
single e-mailed statement from Babinski and Professor Walsh, from which
she e-mailed them her ruling.
Defendants argue that the procedures that occurred satisfied the LSU grade
appeal procedure, citing from other provisions of the General Catalog. The Court will not
consider Defendants’ factual contentions at the motion to dismiss stage.89 Therefore,
86 Id. (cleaned up).
87 Rec. Doc. No. 38, p. 4–6.
88 Rec. Doc. No. 32-1, p. 5–7, 10.
89 Moreover, even if the Court were to consider Defendants’ contention that the “discussion” between the
student and faculty member can permissibly occur via email, the result would be the same. First, Babinski
Babinski has adequately stated a procedural due process claim against Walsh and
Sosnowsky as it relates to their alleged failure to follow the grade appeal process.
Babinski does not allege that Sikes and Fletcher were involved in this process, and so
they are not implicated in this claim.
Babinski’s argument that Defendants stripped him of his graduate assistantship in
violation of LSU policies fails. Babinski alleges that LSU rule PS-21 provides:
[T]he offer of [graduate assistant] appointment, once accepted, becomes a
binding contract between the student and the appointing unit….. Your
appointment will be for the 9-month academic period, may be renewed, and
is contingent on our being a student in “good academic and accountability
standing” in the Graduate School, a term defined in the General Catalog. A
student on probation (academic or disciplinary) is not in good standing.
Essentially, Babinski argues that, had Sosnowsky and Walsh correctly followed the grade
appeal procedure, he would not have received a failing grade and therefore would not
have lost his graduate assistantship. This claim fails because it rests on speculation and
conjecture that the grade appeal process, if properly followed, would have culminated in
a result that removed him from academic probation. Speculation and conjecture fail to
move the needle from possible to plausible.
Finally, the Court turns to the core of Babinski’s property interest procedural due
process claim: Defendants deprived him of an alleged property interest in continued
enrollment. Defendants cite several cases in support of their argument that there is no
state-created right to higher education.90 However, as noted above, Babinski can
does not allege that there were emails exchanged between him and Walsh as part of the first step in the
process. Second, Sosnowsky’s acceptance of one email from Babinski and Walsh with no further input, as
alleged, is arguably not a “discussion.”
90 Smith v. Davis, 507 F. App’x 359 (5th Cir. 2013); Sonya D. Aryndar b/n/f Freya Arundary v. DeKalb
County School District, 620 F.2d 493 (5th Cir. 1980); Barnes v. Symeonides, 44 F.3d 1005 (5th Cir. 1995).
adequately state his claim if he points to a contractual promise that Defendants failed to
honor.
Babinski redirects the Court to the July 2019 email from Sosnowsky to Walsh and
Fletcher:
I also spoke with Tracy [(of the Student Advocacy and Accountability
Office)] regarding [Babinski’s] continuation in the program. We are not able
to prevent him from continuing in the program should he be able to pay
tuition.91
Babinski asserts that “[t]his admission provides the necessary evidence of an existing
property or contractual interest that could not be deprived absent due process.”92
Defendants counter that “the excerpt [of the email] provided makes it clear that the
purpose of Professor Sosnowsky’s email was to relay to her colleagues that authorities
did not conclude [that Babinski] posed an active threat to the faculty.”93
The Court concludes that Babinski has adequately alleged that Defendants
violated his right to procedural due process by denying him the continued enrollment to
which he was allegedly entitled. At the 12(b)(6) stage, the Court must draw reasonable
inferences in favor of the plaintiff. From the email, the Court may infer that LSU policy, as
articulated by the Student Advocacy and Accountability Office, prevented Defendants
from stopping Babinski’s continuation in the Program. In other words, the Court may infer
that, after Babinski submitted his paper and received the failing grade, he still had an
entitlement to continued enrollment as long as he continued to pay tuition. This suffices
to allege a contractual or property interest. Defendants’ alleged de facto expulsion of
Babinski constitutes an infringement upon that interest because he was not provided a
91 Rec. Doc. No. 28, p. 14–15.
92 Rec. Doc. No. 38, p. 6.
93 Rec. Doc. No. 39, p. 2–3.
hearing prior to his de facto expulsion,94 so this claim is properly pled. The Court turns to
Babinski’s liberty interest argument.
The Supreme Court has stated that “[w]here a person’s good name, reputation,
honor or integrity is at stake because of what the government is doing to him,”95 the
minimal requirements of the [Due Process] Clause must be satisfied.”96 The Fifth Circuit,
in interpreting applicable Supreme Court precedent in the context of a discharged public
employee, has required a showing of stigma-plus. Although it does not appear that the
Fifth Circuit has applied the stigma-plus doctrine to a liberty interest claim by an expelled
student, the Court finds that the same principles apply in the instant context because
Babinski alleges that the government has deprived him of a liberty interest.
Under the stigma-plus doctrine, a plaintiff must allege “a stigma plus an
infringement of some other interest.”97 “Concern about the impact of the plaintiff's [de
facto expulsion] on his or her general reputation is not, standing alone, sufficient to give
rise to the required liberty interest.”98 On the contrary, “a constitutionally protected liberty
interest is implicated only if a [student] is [expelled] in a manner that creates a false and
defamatory impression about him and thus stigmatizes him and forecloses him from
other…opportunities.”99
Babinski alleges that Sosnowsky made false claims about him to “various LSU
administrators” that harmed his reputation, including “that he was mentally unstable, that
he was abusive to other students, and that he’d threatened other students and faculty in
94 Goss v. Lopez, 419 U.S. 565 (1975).
95 Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 510, 27 L. Ed. 2d 515 (1971).
96 Goss v. Lopez, 419 U.S. 565, 574 (1975).
97 Tebo v. Tebo, 550 F.3d 492, 503 (5th Cir. 2008).
98 Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000).
99 Id.
his paper.”100 Further, Babinski alleges that Walsh, Sosnowsky and Fletcher withheld
mitigating information in their communications with LSU administrators and the Office of
Student Advocacy and Accountability.101 He alleges that Sosnowsky and Walsh shared
his education records and paper with other students.102 He avers that Walsh, Sosnowsky,
and Fletcher continue to share his paper with others both inside and outside the
Program.103 In sum, Babinski alleges that his “protected liberty interest in his good name,
reputation, and integrity…has been infringed upon and tarnished by the [D]efendants’
actions in sharing Babinski’s paper and de facto expelling him from the Program by
refusing to teach him and refusing to make alternative arrangements for him.”104 Notably,
Defendants do not address Babinski’s liberty interest theory of the procedural due
process claim.
Babinski has adequately stated a claim for a violation of his liberty interest without
due process as to Sosnowsky—but not Walsh, Fletcher, or Sikes. He alleges that
Sosnowsky defamed him to LSU administrators and that the defamation contributed to
his being unable to continue in the Program. This allegation is sufficient to state a
plausible claim for infringement of a liberty interest. However, the allegation that Walsh,
Sosnowsky, and Fletcher withheld mitigating information is not sufficient as to Walsh and
Fletcher because Babinski does not allege that Walsh and Fletcher provided false
information that needed to be corrected. In other words, the Court will not impose upon
Walsh and Fletcher a duty to correct the misstatements of others. Finally, the allegation
100 Rec. Doc. No. 28, p. 9.
101 Id. at 10.
102 Id.
103 Id.
104 Id. at 17.
that Sosnowsky, Walsh, and Fletcher continue to share Babinski’s paper is conclusory.
Moreover, even if the Court credited this allegation, Defendants’ sharing of Babinski’s
paper is not in and of itself defamatory because Babinski admittedly wrote the paper. This
claim survives as to Sosnowsky, but not the other Defendants.
Babinski’s substantive due process claim fails to the extent he has alleged one.
Babinski does not assert a violation of his substantive due process rights as a separate
count in the Amended Complaint.105 He also fails to adequately oppose Defendants’
Motion as to that claim as he provides no argument. Defendants’ Motion is granted as to
Babinski’s substantive due process claim, which is dismissed with prejudice.
D. Class of One Equal Protection Claim
Babinski asserts a class of one equal protection claim. The Fifth Circuit recently
explained:
Class-of-one equal-protection claims are an application of the principle that
the seemingly arbitrary classification of a group or individual by a
governmental unit requires a rational basis. To state a class of one claim
under the Equal Protection Clause, the plaintiff must allege that: (1) the
defendant intentionally treated plaintiff differently from others similarly
situated, and (2) the defendant lacked a rational basis for the difference in
treatment.106
As the Fifth Circuit explained in Rountree v. Dyson,107 a plaintiff bringing a class of
one equal protection claim who merely “alleges that other similarly situated individuals
were treated differently, but [] points to no specific person or persons and provides no
specifics as to their violations” has not stated a class of one claim under Fed. R. Civ. P.
105 Rec. Doc. No. 28.
106 Martinez v. New Deal Indep. Sch. Dist., 802 F. App'x 98, 100 (5th Cir. 2020) (internal citations omitted).
107 892 F.3d 681 (5th Cir. 2018).
12(b)(6).108 The Fifth Circuit elaborated, “[a]n allegation that others were treated
differently, without more, is merely a legal conclusion that we are not required to credit.”109
The Court applied Rountree in its prior Ruling and held that Babinski had failed to
allege that a specific person was treated differently. The amendments to his Complaint
compel a different result on this Motion. Babinski now alleges that:
[U]pon information and belief, two months after Dean Queen and Professor
Sosnowsky advised Babinski he could not assemble a dissertation
committee, another Program student, S.C., asked Professor Fletcher if she
could assemble a committee with a graduate, non-Program theatre
professor (an option that was denied Babinski). Professor Fletcher advised
S.C. that this was an acceptable practice.110
Further:
[U]pon information and belief, the LSU Ombudsperson advised Babinski,
Professor Sosnowsky, and Dean Queen that she was specifically aware of
a situation where a professor refused to teach a student even though the
professor’s course was required for graduation. LSU accommodated this
student by allowing them to receive credit for the course and through
independent study. Babinski was specifically deprived of this option by
Dean Queen and Professor Sosnowsky.
These allegations are sufficient to plead the first prong of a class of one claim as
to Fletcher and Sosnowsky. While both are pled on information and belief, the second
allegation provides that Babinski learned this knowledge firsthand, so the basis for his
belief is provided.111 Additionally, the second allegation identifies that there is a discrete
individual who received differing treatment, rather than a conclusory allegation that
“others” received different treatment. The first allegation does not contain the basis for
the belief, but the identification by initials of a similarly situated individual lends credence
108 Id. at 685.
109 Id.
110 Rec. Doc. No. 28, p. 13.
111 U.S. ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 329 (5th Cir. 2003) (internal citations omitted).
to the belief. Babinski has sufficiently identified specific individuals who were allegedly
treated differently than him to satisfy his burden at the 12(b)(6) stage. Moreover, those
students were similarly situated because they, like Babinski, needed to use the LSU
procedures which he was not allowed to use. The Court turns to the second prong of the
class of one claim: Babinski must allege that Fletcher and Sosnowsky lacked a rational
basis for that differing treatment.
At this stage, the Court must draw reasonable inferences in favor of Babinski, and
he has sufficiently alleged that Fletcher and Sosnowsky lacked a rational basis for the
differing treatment. Babinski generally alleges that Defendants disliked his paper and took
steps to prevent his continuation in the Program because of its content. He alleges, in the
form of the email from the Student Advocacy and Accountability Office, that Sosnowsky,
Walsh, and Fletcher knew that they could not prevent Babinski from continuing in the
Program so long as he paid his tuition.112 He also alleges that Sosnowsky and Fletcher’s
actions were in violation of LSU policy.113 Babinski has adequately alleged a class of one
claim as to Sosnowsky and Fletcher.
Babinski has not alleged a class of one claim against Sikes and Walsh. He does
not allege that Sikes or Walsh treated him differently than any other specific student, so
he cannot satisfy the first prong. The class of one claim against Sikes and Walsh is
dismissed.
E. Conspiracy to Violate Civil Rights Claim
112 Rec. Doc. No. 28, p. 14–15.
113 Id. at 11–13.
To state a claim for conspiracy to violate civil rights, a “plaintiff must not only allege
facts that establish (1) the existence of a conspiracy involving state action, but also (2) a
deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.”114
Babinski alleges that in the summer of 2019 after he submitted the paper, he
attempted to communicate with Walsh, Fletcher, and Sikes, but they refused to
respond.115 He alleges that Defendants had a meeting ten days before the start of the fall
2019 semester where they agreed to refuse to teach Babinski.116 The alleged meeting
and the content of the discussions are pled on information and belief.117 The Court will
credit Babinski’s allegation that his continued enrollment was the topic of conversation at
the meeting because Babinski alleges that Sosnowsky, Walsh, and Fletcher, exchanged
an email in late July 2019 wherein Sosnowsky told Fletcher and Walsh that Defendants
could not prevent Babinski from continuing in the Program as long as he could pay
tuition.118
Babinski has adequately pled a conspiracy to violate civil rights claim. Babinski
alleges a conspiracy by Fletcher, Sikes, Walsh, and Sosnowsky to prevent his continued
enrollment in the Program. Babinski has adequately pled a First Amendment claim, a
class of one claim, and a procedural due process claim. Therefore, he has adequately
pled a conspiracy to violate civil rights claim, and the underlying constitutional claims are
different theories of his one conspiracy to violate civil rights claim.
F. Qualified Immunity
114 Shaw v. Villanueva, 918 F.3d 414, 419 (5th Cir. 2019) (internal citations omitted).
115 Rec. Doc. No. 28, p. 11.
116 Id. at 11.
117 Babinski adequately asserts this allegation because the First Amended Complaint implies that Babinski
became aware of the meeting after it occurred.
118 Id. at 14–15.
Babinski concedes that qualified immunity applies to his equal protection and
conspiracy claims.119 The Court concluded above that qualified immunity applies to his
First Amendment claims. Thus, the Court only analyzes qualified immunity in the context
of his procedural due process claims.120
To defeat qualified immunity, Babinski must allege that: (1) his constitutional rights
were violated, and (2) the right that was violated was clearly established at the time of the
violation.121 Babinski cites four cases in support of his argument that qualified immunity
is inapplicable; three are cases from Louisiana appellate courts, which are not binding
Fifth Circuit or Supreme Court precedent.122 Babinski also cites Goss v. Lopez.123
In Goss, the Supreme Court held that Ohio high school students who were
suspended for ten days were entitled to due process in the form of a hearing before, or
reasonably after, they received suspensions.124 The Court began by finding that Ohio
statutes created a right to public education for the students.125 The Court held that this
right to public education is a property interest protected by the Due Process Clause.126
The Court also found that students had a liberty interest in their good name and reputation
which was also implicated when the school suspended them without due process.127 Of
note here, the school officials argued that the Due Process Clause “comes into play only
119 Rec. Doc. No. 38, p. 11.
120 Qualified immunity does not extend to claims for injunctive relief. Morgan v. Swanson, 659 F.3d 359,
365, n. 3 (5th Cir. 2011). Thus, Babinski’s request for an injunction requiring his reinstatement into the
Program is still viable.
121 Sims v. City of Madisonville, 894 F.3d 632, 638 (5th Cir. 2018).
122 Keller v. Fleming, 952 F.3d 216, 225 (5th Cir. 2020) (cleaned up).
123 419 U.S. 565 (U.S. 1975).
124 Id. at 584.
125 Id. at 574. “Having chosen to extend the right to an education to people of appellees' class generally,
Ohio may not withdraw that right on grounds of misconduct absent, fundamentally fair procedures to
determine whether the misconduct has occurred.” Id.
126 Id.
127 Id. at 576.
when the State subjects a student to a severe detriment or grievous loss,” and a ten day
suspension did not reach that high bar.128 The Court rejected that argument stating, “[t]he
Court’s view has been that as long as a property deprivation is not de minimis, the gravity
is irrelevant to the question whether account must be taken of the Due Process
Clause.”129 Having found that due process applies, the Court held that, at a minimum, a
student facing a ten day suspension is entitled to oral or written notice of the charges
against him and, if he denies them, an explanation of the evidence the authorities have
and an opportunity to present his side of the story.”130 The Court also clarified that it had
addressed solely short suspensions, and “[l]onger suspensions or expulsions for the
remainder of the school term, or permanently, may require more formal procedures.”131
The parties debate whether Goss suffices as clearly established law in this case.
Babinski essentially argues that Goss requires notice and an opportunity to be heard
before a suspension is imposed, so, a fortiori, Goss requires a notice and an opportunity
to be heard before a de facto expulsion is imposed132 Babinski avers that Defendants did
not provide him notice and a hearing, so they violated the clearly established law in
Goss.133
Defendants argue that Goss is inapplicable because Babinski was never
suspended by LSU.134 Rather, “[h]e simply received a failing grade in THTR 7923 for
submitting his paper late and not in accordance with the instructions.”135 Further, citing
128 Id. at 575.
129 Id. at 576.
130 Id. at 581.
131 Id. at 584.
132 Rec. Doc. No. 38, p. 12.
133 Id. at 12–13.
134 Rec. Doc. No. 39, p. 4.
135 Id.
the First Amended Complaint, Defendants assert that “Babinski was afforded due process
through an appeal of the grade on his paper, through the LSUPD investigation, the office
of Student Advocacy and Accountability investigation, and communications with LSU
faculty members.”136 Moreover, Defendants argue that Babinski was able to pursue
another degree.137
Defendants’ characterization of the allegations in the First Amended Complaint is
disingenuous. Babinski alleges that he “attempted to petition for a grade appeal, but the
process was mired in defects…” and did not follow LSU policy.138 Likewise, he alleges
that the LSUPD and Office of Student Advocacy and Accountability investigations led to
the conclusions that Babinski’s paper “presented no actionable security issues to anyone”
and that “no violation of any LSU policies” occurred.139 As pled, these investigations
support the allegation that discipline was inappropriate. Finally, Babinski alleges that,
while there was some communication between him and Defendants, they refused to
communicate with him in the months leading up to the fall 2019 semester; critically, he
also alleges that he was not allowed to attend a meeting at which Defendants decided
that they would refuse to teach him.140 Next, the Court considers whether Defendants are
entitled to qualified immunity for Babinski’s procedural due process claims.
In Mullenix v. Luna, the Supreme Court stated the principles relevant to the clearly
established inquiry:
The doctrine of qualified immunity shields officials from civil liability so long
as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known. A
136 Id. at 4–5 (citing Rec. Doc. No. 28, p. 7–10).
137 Id. at 5.
138 Rec. Doc. No. 28, p. 10–11.
139 Id. at 8.
140 Id. at 11.
clearly established right is one that is sufficiently clear that every reasonable
official would have understood that what he is doing violates that right. We
do not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate. Put simply,
qualified immunity protects all but the plainly incompetent or those who
knowingly violate the law.
We have repeatedly told courts not to define clearly established law at a
high level of generality. The dispositive question is whether the violative
nature of particular conduct is clearly established. This inquiry must be
undertaken in light of the specific context of the case, not as a broad general
proposition.141
The Supreme Court also provided further instruction on the degree of specificity required.
A general statement of the law is not sufficient; rather, it must be clearly established that
the state actor’s actions were unconstitutional in the specific factual scenario that the state
actor faced.142
According to the First Amendment Complaint, the factual scenario is as follows.
Babinski, a post-graduate student, submitted a paper that earned him a failing grade and
disturbed Defendants. Defendants reported his paper to the LSUPD and Office of Student
Accountability and Advocacy; both of those organizations found that the paper was not
actionable. Further, a representative of the latter office informed Sosnowsky that she
could not prevent Babinski from continuing in the Program, and Sosnowsky relayed that
message to Fletcher and Sikes. However, Defendants refused to teach Babinski and
denied him access to grade appeal procedures and other procedures that he could have
used to continue in the Program. In sum, Defendants made it impossible for Babinski to
continue in the Program, and critically, Babinski alleges that their intent was to prevent
141 Mullenix v. Luna, 577 U.S. 7, 12–14, 136 S. Ct. 305, 309, 193 L. Ed. 2d 255 (2015).
142 Id.
his continuation in the Program.143 Defendants allegedly de facto expelled Babinski from
the Program without providing him a notice and an opportunity to be heard.
In 2017, the Fifth Circuit stated that “due process requires notice and some
opportunity for hearing before a student at a tax-supported college is expelled for
misconduct.”144 This rule, along with the holding in Goss makes the right to pre-expulsion
notice and opportunity to be heard clearly established.
Although Babinski was an LSU post-graduate student, there is no discernable
basis for applying a different rule than that applied to LSU undergraduate students.
Babinski, as a post-graduate student enrolled in LSU, was subject to LSU’s rules and
procedures, including the LSU General Catalog—much like an undergraduate student.145
There is no reasonable distinction between his property and liberty interest in his
continued enrollment as a post-graduate student and that of an undergraduate student.
Likewise, it is irrelevant that Babinski failed a course. He was placed on academic
probation as a result of his failing the course; and, although his academic failure merited
an academic punishment, Defendants cannot and do not reasonably argue that they de
facto expelled Babinski for academic reasons.
Additionally, it is not relevant that Defendants did not formally expel Babinski or
that he completed a different program within LSU. Defendants reported Babinski’s actions
to the Office of Student Advocacy and Accountability, but the Office allegedly stated that
there had been no violation of LSU policies. This fact, accepted as true, implies that
Defendants knew that formal processes were necessary, but shifted to a de facto
143 Rec. Doc. No. 28, p. 14–15.
144 Plummer v. Univ. of Houston, 860 F.3d 767, 773 (5th Cir. 2017), as revised (June 26, 2017).
145 Rec. Doc. No. 28, p. 12.
expulsion strategy once the formal LSU disciplinary process resulted in no punishment.
The Court will not reward Defendants for their creativity in doling out procedurally deficient
punishments. Under the facts of this case, Defendants knew or should have known that
it would be unconstitutional for them to force Babinski out of the Program without sufficient
process, so qualified immunity is inappropriate as to the procedural due process claims.
III. CONCLUSION
With the exception of the procedural due process claims, all of Babinski’s claims
against Defendants in their individual capacities are dismissed on the basis of qualified
immunity, with prejudice. Likewise, the request for an injunction to prevent Defendants
from continuing to share Babinski’s paper and/or disparaging information about him is
dismissed as to all Defendants in both their official and individual capacities, without
prejudice to re-urging should renewal of this requested relief become appropriate.
Babinski’s substantive due process claims against all Defendants in their official and
individual capacities are dismissed with prejudice.
Babinski adequately pled a property interest theory procedural due process claim
against all Defendants in their individual capacities, and Defendants are not entitled to
qualified immunity as pled. As to Sosnowsky only, he adequately pled a liberty interest
theory procedural due process claim against her in her individual capacity, and she is not
entitled to qualified immunity as pled.
Babinski adequately pled the First Amendment claims and conspiracy to violate
civil rights claim against all Defendants in their official capacities. He adequately pled a
class of one claim as to Sosnowsky and Fletcher in their official capacities, but not Walsh
and Sikes.
Unless otherwise noted, all claims that are not properly pled are dismissed with
prejudice. Defendants’ Motion146 is granted in part and denied in part.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on August 17, 2022.
S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
146 Rec. Doc. No. 32.