Nicholas Hess v. Board of Trustees of Southern

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-1064

NICHOLAS HESS,

Plaintiff-Appellant,

v.

THE BOARD OF TRUSTEES OF SOUTHERN

ILLINOIS UNIVERSITY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:14-cv-00727 LJM — Larry J. McKinney, Judge. *

____________________

ARGUED SEPTEMBER 15, 2016 — DECIDED OCTOBER 13, 2016

____________________

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. Nicholas Hess was suspended and

later expelled from Southern Illinois University (SIU) after he

was arrested for aggravated battery. Hess sued the Board of

* Of the Southern District of Indiana, sitting by designation.

2 No. 16-1064

Trustees of the university, as well as several school adminis-

trators in their individual and official capacities, for violations

of his procedural and substantive due-process rights. After

dismissing some of the claims as barred by sovereign immun-

ity, the district court awarded summary judgment to defend-

ants on the remaining claims. We affirm.

I. Background

In the early morning of November 28, 2013, law-enforce-

ment officials responded to a call about a bar fight in Marion,

Illinois. Marion police officer Adam Byrne was one of the first

to arrive at the scene. As he approached the bar, Byrne spotted

one man chasing another across the parking lot. The latter in-

dividual ran to a parked car and was able to get in before the

pursuer, not far behind, also reached the car and began

punching at the driver’s-side window. Byrne restrained the

pursuer, and the man in the car drove away.

The pursuer was Nicholas Hess, a student at SIU. Hess

told Officer Byrne that a fight had broken out at the bar, so he

and his brother, sister, and girlfriend had tried to leave the

venue. Before they could do so, however, a man Hess recog-

nized as Aaron Franks had hit Hess’s sister in the face. Hess

had then given chase, but claimed to have never made contact

with Franks because Franks had jumped into his car. Hess’s

girlfriend and his siblings corroborated his story, though the

sister did not have any injuries suggestive of facial trauma.

The Marion Police Department sent an officer to speak

with Aaron Franks, who had driven himself to a nearby hos-

pital. Franks, it turned out, had been stabbed several times,

and he gave to the police officer a physical description of the

person Franks believed had attacked him. This description

No. 16-1064 3

closely matched Hess’s appearance on the morning in ques-

tion, and Hess was taken into custody a short time later. After

a second round of questioning—during which Hess gave the

same account as he had previously—Hess was released. A

few days later, however, he was charged with aggravated bat-

tery, and a warrant was issued for his arrest on December 4,

2013. Hess turned himself in on December 9, and was released

on bail later that day.

News of the arrest soon reached SIU’s Director of Student

Rights and Responsibilities, Chad Trisler, who requested the

relevant incident reports from the police department. After

reviewing the reports, Trisler recommended to the acting

Dean of Students, Katherine Sermersheim, that Hess be sus-

pended from the university pending a hearing. Sermersheim

concurred, and asked Trisler to issue the interim suspension.

On December 11, 2013, SIU police officers told Hess to

come to the campus police department to receive a letter. Hess

went to the department with his mother, and Trisler met with

them and explained that Hess was being suspended. Trisler

also gave to Hess a written notice of suspension, which stated

that Hess was being suspended from all university property

and events in light of allegations from the Williamson County

Sheriff’s Department that he had stabbed someone several

times during a bar fight. If Hess wished to appeal the suspen-

sion, the notice explained, he could ask for an interim appeal

hearing, which would take place within two days of the re-

quest. Hess did not request an interim hearing, and, while

suspended, he missed two final exams.

On December 13, Hess received from Trisler a “charge and

notification” letter, which listed the provisions of the SIU Stu-

dent Conduct Code that school administrators believed Hess

4 No. 16-1064

had violated during the bar incident. These alleged violations

included: (1) intentional, negligent, or attempted homicide;

(2) physical assault or abuse; (3) violent behavior; (4) “group

actions” (defined in Section 2.3.6.2 of the Code as any incident

in which a group of two or more persons engaged in violence,

or the threat of violence, against an individual); (5) reckless

disregard for the risk one’s actions presented to others;

(6) reckless conduct presenting a danger to property; (7) the

possession, carrying, or use of any object intended for use as,

or used as, a weapon; and (8) disorderly conduct. The letter

instructed Hess to complete and return to SIU within five

days an attached form, in which Hess could either admit his

responsibility for the offenses charged, or deny his responsi-

bility and request an administrative hearing. Hess requested

a hearing, which was scheduled (in light of the winter holi-

day) for January 17, 2014.

Four days before the January hearing, Hess received a let-

ter explaining that Chad Trisler would be his assigned hearing

officer, and that Hess could call as a witness any person who

had been present at, or who otherwise had firsthand

knowledge of, the events at issue. Hess decided to testify on

his own behalf, but had little to say at the hearing, as his coun-

sel—who was present as Hess’s advisor throughout the pro-

ceeding—had instructed him not to answer any questions

about what had happened at the bar. Hess’s girlfriend testified

that she, Hess, and his siblings had decided to leave the bar

after another person had told them that someone there had a

gun. It was in trying to exit that Hess had seen Aaron Franks

(the stabbing victim) punch Hess’s sister in the nose, and Hess

had given chase. Up until that point, said the girlfriend, she

and Hess had been holding hands.

No. 16-1064 5

Officer Byrne also testified at the hearing. He described

what he had seen after arriving at the bar—i.e., Hess chasing

Franks across the parking lot—and what Hess (and, later, his

girlfriend and siblings) had told Officer Byrne about Franks

punching Hess’s sister in the face. Byrne had then gone inside

the bar to investigate, he explained, and had concluded that

several “incidents of battery” had taken place there—though

he did not believe Hess had participated in those fights. 1

Byrne testified that Franks had later described his attacker as

resembling Hess, and that police officers had looked for evi-

dence that Hess had had with him at the bar a knife or other

weapon, but that no such evidence was found.

Trisler nonetheless thought Franks’s description was cred-

ible, and concluded that Hess was responsible for the stab-

bing. In a letter dated January 21, 2014, Trisler informed Hess

of the decision to expel him from the university. The letter

enumerated the seven sections of the Student Conduct Code

that Trisler believed Hess had violated—oddly, only “use of a

weapon” was dropped from the original list of eight alleged

violations—and explained that Hess had three days in which

to file an administrative appeal. Hess did so, and his appeal

was considered by a three-member panel of SIU employees.

1 According to Byrne’s written police report, he had seen inside the

bar Aaron Franks’s brother, Aadam, and two men with blood on them,

Mikeal Simmons and Dustin Kendrick. Aadam claimed to have been in-

jured by Simmons, and Simmons by Aadam, after Simmons had ex-

changed angry words with Aaron Franks. Kendrick maintained that he

had been punched in the face—though he did not say by whom—when

attempting to break up a fight between his friends and another man, who

had attacked them.

6 No. 16-1064

The panel recommended that Trisler’s decision be upheld,

and the Chancellor of the university, Rita Cheng, agreed.

Hess filed suit under 42 U.S.C. § 1983 against SIU’s Board

of Trustees, and Cheng, Sermersheim, and Trisler—each in

their individual and official capacities—for violations of

Hess’s procedural and substantive due-process rights. Ac-

cording to Hess, he had a property interest in a continued ed-

ucation at SIU, as well as a liberty interest in his reputation

with his instructors and fellow students (and in his ability to

pursue additional education elsewhere), and defendants had

unlawfully deprived him of those interests by: (1) suspending

him without first affording him an opportunity to tell his side

of the story; and (2) expelling him after conducting an unfair

hearing. Hess requested money damages, as well as an injunc-

tion compelling both his readmission to the university and the

opportunity for Hess to take his missed final exams.

Defendants filed a motion to dismiss the complaint, argu-

ing first that the official-capacity claims and claims against the

Board for monetary relief were barred by the Eleventh

Amendment, and, second, that the claims as a whole were in-

adequately pleaded. The motion to dismiss was still pending

when the parties later cross-moved for summary judgment,

so the district court resolved all three motions in the same

opinion.

The court granted the motion to dismiss insofar as it con-

cerned the damages claims against the Board, and against the

administrators as sued in their official capacities, as these

were claims against the university. The university, reasoned

the court, was not a “person” from whom money damages

could be obtained under § 1983. The court then converted the

No. 16-1064 7

remainder of the motion to dismiss into a motion for sum-

mary judgment, and ruled, in connection with the existing

motions for summary judgment, in defendants’ favor. Hess

had established neither a protected property interest nor a

protected liberty interest, said the court; and even if he had

proven such an interest, defendants had in any event pro-

vided Hess with sufficient procedural protections in depriv-

ing him of it. The district court was similarly unconvinced of

any substantive due-process violation.

Hess now appeals the granting of defendants’ summary-

judgment motion. He does not challenge either the denial of

his own summary-judgment motion or the court’s dismissal

of his money-damages claims against the university.

II. Discussion

We review de novo a district court’s decision on cross-mo-

tions for summary judgment, construing all facts and draw-

ing all reasonable inferences in favor of the party against

whom the motion under consideration was filed. Calumet

River Fleeting, Inc. v. Int’l Union of Operating Eng’rs, Local 150,

AFL–CIO, 824 F.3d 645, 647–48 (7th Cir. 2016) (citations omit-

ted). As we consider here only defendants’ motion for sum-

mary judgment, we resolve all factual disputes in Hess’s favor.

Summary judgment is appropriate where there are no genu-

ine issues of material fact and the movant is entitled to judg-

ment as a matter of law. Fed. R. Civ. P. 56(a).

A. Procedural Due Process

We undertake a two-part analysis in procedural due-pro-

cess cases: first, we determine whether the plaintiff was de-

prived of a protected interest; if so, we determine what pro-

cess was due under the circumstances. See Charleston v. Bd. of

8 No. 16-1064

Trs. of the Univ. of Ill. at Chi., 741 F.3d 769, 772 (7th Cir. 2013)

(citing Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003));

Pugel v. Bd. of Trs. of the Univ. of Ill., 378 F.3d 659, 662 (7th Cir.

2004) (citing Doherty v. City of Chi., 75 F.3d 318, 322 (7th Cir.

1996)). Hess argues that he had a protected interest in, among

other things, a continued education at SIU—both at the time

of his interim suspension, and, later, when Hess was perma-

nently expelled from campus. We will assume for present

purposes that Hess did have such an interest, and that de-

fendants therefore deprived him of this interest in removing

Hess from school. We turn, then, to the procedures used by

the university in effecting that alleged deprivation.

Where students are suspended from school for only brief

periods of time—i.e., for ten days or fewer—due process re-

quires only minimal safeguards: notice of the charges asserted

against the student, and, if he denies them, an explanation of

the evidence and an opportunity for the student to present his

side of the story. See Goss v. Lopez, 419 U.S. 565, 581 (1975); see

also id. at 584 (discussing an “informal give-and-take” be-

tween the student and disciplinarian). Hess was suspended

for more than ten days, but the temporary exclusion from

school property and activities was, as a practical matter, much

shorter than the calendar would otherwise suggest, as the sus-

pension coincided with SIU’s winter break. The Goss standard

thus applies here. Hess does not quarrel with the application

of this standard to his interim suspension, but maintains that

the standard was not satisfied in this case because there was

no “give-and-take” before the punishment was imposed. See

419 U.S. at 582 (noting that, in general, the required notice and

hearing should precede the student’s removal from school).

Hess was merely given a letter describing the conduct of

which he had been accused.

No. 16-1064 9

As we have explained in the past, however, schools may

in some instances dispense with certain pre-disciplinary pro-

cedures without running afoul of the Due Process Clause. In

Medlock v. Trustees of Indiana University, 738 F.3d 867 (7th Cir.

2013), for example, we addressed the suspension of a college

student found to have cultivated and hidden in his dorm

room a large quantity of marijuana. This flagrant violation of

university rules—and of Indiana criminal law—in our view

warranted immediate remedial action, and therefore obviated

the need for a pre-suspension hearing. See id. at 871 (citing

Goss, 419 U.S. at 581–83). There are, as Hess points out, differ-

ences between Medlock and the present case: Whereas in Med-

lock all evidence pointed toward the student’s guilt, leaving

no doubt that he had engaged in the conduct charged, see id.

at 871–72, here, as we shall see, the balance does not tilt so

clearly in the university’s favor. Nevertheless, an arrest war-

rant for aggravated battery was compelling evidence that

Hess may have been responsible for the stabbing of Aaron

Franks—permitting SIU, in the interest of protecting other

members of its community, to promptly remove Hess from

campus pending a later hearing. See Goss, 419 U.S. at 582–83

(observing that schools may provide a post-removal hearing

where, as here, the student’s presence “poses a continuing

danger to persons or property”).

Hess insists that he was not a threat to anyone at SIU, and

that defendants could not reasonably have believed that he

was, because the person Hess had allegedly injured was not a

student at the university. Hess had also been on campus mul-

tiple times between the stabbing incident and when he was

suspended, and on none of those occasions had he behaved

violently toward anyone. Moreover, says Hess, the school had

10 No. 16-1064

no policy of prohibiting convicted persons from entering uni-

versity property—so it made no sense to bar from campus

those who had been merely accused, but not convicted, of

committing a crime. None of these arguments is persuasive.

Whether SIU had formally banned all convicted felons from

coming onto campus says nothing about the actions school

administrators could, or would, take when faced with a par-

ticularized threat; and, as evidenced by the warrant for Hess’s

arrest, administrators in this case had reason to be concerned.

The police believed Hess had stabbed another person multi-

ple times—thus suggesting to defendants that Hess was not

in full command of his emotions or, consequently, his behav-

ior, and might without warning endanger other individuals.

That Aaron Franks was not a member of the SIU community,

or that Hess had returned to campus without issue since the

stabbing had occurred, would not have obviated the risk de-

fendants reasonably thought Hess’s presence posed. It was

logical for the university to suspend him pending a later hear-

ing. Cf. Gilbert v. Homar, 520 U.S. 924, 933–34 (1997) (conclud-

ing, in the public-employment context, that a pre-suspension

hearing was rendered unnecessary by an arrest and the filing

of charges, as these events ensured that there were reasonable

grounds for disciplinary action) (citation omitted). 2

2 Hess cites to Goss for the proposition that even his arrest was not

reason enough to do away with a pre-disciplinary hearing, as one of the

students in Goss had likewise been arrested, and due process required for

that student a pre-deprivation opportunity to explain herself. See 419 U.S.

at 580 n.9. However, the problem with the procedures afforded in Goss

was not the lack of a pre-suspension hearing in particular, but the failure

to provide a disciplinary hearing at any time. See id.; id. at 571, 584. Indeed,

and as noted above, the Supreme Court was careful to explain that the

kind of pre-disciplinary procedures Hess now demands are not required

No. 16-1064 11

Moreover, we question the degree to which Hess actually

valued the interest he says was curtailed by the interim sus-

pension—and thus the importance to Hess of any pre-disci-

plinary safeguards he claims ought to have been employed

here—as Hess chose not to appeal that suspension in the first

instance. See, e.g., Goss, 419 U.S. at 578 (noting that procedural

due process is a practical concept, dependent on context) (ci-

tation omitted); id. at 579 (examining, in context, the private

interest at stake); Pugel, 378 F.3d at 663–64 (same). The written

notice of disciplinary action that Hess received on December

11, 2013, explained that Hess could request an interim appeal

meeting; and that meeting, had Hess asked for one, would

have taken place within two days of the request. So Hess

could have had his say by December 13. Hess urges that a con-

versation at that time would have served no purpose, because

he still would have missed his final exams. Yet even if an in-

terim appeal would not have allowed Hess to take all of his

exams as scheduled, we do not see why a student in his posi-

tion, as concerned with his academic record as Hess claims to

have been, would not have availed himself of every oppor-

tunity to protect—or at least mitigate the possible damage

to—that record.

In any event, Hess argues that the hearing he ultimately

did receive—that is, the post-suspension (but pre-expulsion)

hearing—was procedurally deficient, because the presiding

officer, Chad Trisler, was biased against Hess and had pre-

in situations where, as here, the student’s presence potentially poses a con-

tinuing danger to the school community. See id. at 582–83 (observing that,

in such cases, the rudimentary hearing should take place “as soon as prac-

ticable”).

12 No. 16-1064

judged his case. Trisler must have been biased, says Hess, be-

cause: Trisler was smiling when he first told Hess about the

interim suspension in December 2013; Trisler purportedly

communicated to the Dean of Students that, before the hear-

ing in January 2014, Trisler had already decided Hess was

guilty of the conduct charged; and Trisler not only presided

over that hearing, but was also responsible for collecting the

evidence presented during the proceeding.

Although biased decision-making does violate due pro-

cess, see Withrow v. Larkin, 421 U.S. 35, 47 (1975), the combina-

tion of investigative and adjudicative functions into a single

administrator does not, in itself, demonstrate such bias, see id.

at 47–55. This is because we presume that administrators are

honest and impartial, id. at 47, and therefore “capable of judg-

ing a particular controversy fairly on the basis of its own cir-

cumstances,” id. at 55 (quoting United States v. Morgan, 313

U.S. 409, 421 (1941)). The presumption is a rebuttable one, but

the burden of rebuttal is heavy indeed: To carry that burden,

the party claiming bias must lay a specific foundation of prej-

udice or prejudgment, such that the probability of actual bias

is too high to be constitutionally tolerable. Id. at 47, 55; see also

Amundsen v. Chi. Park Dist., 218 F.3d 712, 716 (7th Cir. 2000)

(explaining that the plaintiff typically must show that the ad-

judicator had a pecuniary interest in the outcome of the case,

or that he was previously the target of the plaintiff’s personal

abuse or criticism (quoting Withrow, 421 U.S. at 47)). 3

3Before the district court, Hess argued that Trisler was likely biased

against him because of some offensive remarks Hess (and his mother) al-

legedly made to Trisler after learning of the suspension. The district court

rejected this argument, however, and Hess has not renewed it on appeal.

No. 16-1064 13

To show prejudgment here, Hess relies in part on the dep-

osition testimony of Dean Sermersheim—which, according to

Hess, demonstrates that Trisler thought him guilty from the

get-go. Sermersheim testified as follows:

Q: What was your understanding of what the

charges were that had been lodged against

Hess on December 11, 2013?

A: The information I had at the time was a bar

fight, resulting in Mr. Hess stabbing another

individual multiple times.

Q: Did you conclude that Hess had stabbed an-

other individual multiple times?

A: At that time, based on the information we

had, yes.

Q: Really?

A: Yes.

Q: You had concluded that Hess had stabbed

another individual multiple times, correct?

A: Yes.

Q: Who told you that, that Hess had stabbed

another individual multiple times?

A: That was the information that we had at that

time shared with me by Chad Trisler.

Q: Well, “we.” Who is “we”?

A: Chad, uh, the information that was shared

with him, which in turn, following our pol-

icy, when we believe there’s information to

14 No. 16-1064

suggest a threat to the university commu-

nity, uh —

Q: But my question is, did Chad Trisler tell you

that he believed that Hess had stabbed an-

other individual multiple times?

A: Yes. Based on not him believing, but based

on information that we had received

through our community partners, uh, the in-

formation was shared that that is what was

believed to have occurred at that time.

Q: [S]o Chad Trisler told you that he had re-

viewed information that had been supplied

to him by your, quote, partners, which I take

it in this case was the Marion Police Depart-

ment, right?

A: I’m not exactly sure who the source was, but

it was police, law enforcement.

…

Q: And based on his review of that information,

he concluded, he told you that Hess had

stabbed another individual multiple times;

is that accurate?

…

A: Yes.

We agree with the district court that only a tortured reading

of these statements would permit an inference of predetermi-

nation on Trisler’s part. Read sensibly and as a whole, the tes-

timony clearly communicates that it was the police, not Tris-

ler, who initially thought Hess responsible for the stabbing,

No. 16-1064 15

and that SIU administrators simply credited those beliefs in

deciding whether to remove Hess temporarily from campus.

Nothing in these statements indicates that Trisler had conclu-

sively determined Hess’s guilt before the January hearing.

This leaves us with Hess’s assertion that Trisler was smil-

ing when the latter informed Hess of his interim suspension

in December 2013. Even if true, this evidence is insufficient to

overcome the presumption of impartiality. Smiling at an-

other’s misfortune may reflect malice, as Hess urges; but one

may also smile in sympathy, or to ease the tension of a difficult

moment—or simply out of awkwardness. And there is no

suggestion that Trisler’s facial expressions here were in fact

the product of bad faith. Trisler did not know Hess before

their December 2013 meeting, and thus had no reason to dis-

like him. Nor is there any evidence that Trisler knew the stab-

bing victim. The alleged smile is not enough to show an un-

acceptable likelihood of bias on Trisler’s part.

Moreover, even if Trisler had displayed bias, Hess was

able to (and did) appeal that administrator’s decision to an-

other adjudicative body. Trisler’s decision was considered—

and upheld—by a three-member panel of university employ-

ees, and later by Cheng, the university Chancellor. While Hess

implies that Cheng neglected to conduct an independent re-

view of the facts, and so effectively rubber-stamped the rec-

ommendations she received, there is no evidence reasonably

suggesting that this was the case. In any event, the decision to

expel, as just noted, was also reviewed by the three-member

appeals panel; and there is no contention that any of the latter

individuals was biased against Hess. Thus, to the extent

Hess’s procedural due-process claim rests on allegations of

bias, that claim suffers from a fatal flaw. Cf. Schacht v. Wis.

16 No. 16-1064

Dep’t of Corr., 175 F.3d 497, 503 (7th Cir. 1999) (no due-process

violation where the plaintiff could still obtain administrative

remedies from unbiased decision-makers), overruled on other

grounds by Higgins v. Mississippi, 217 F.3d 951 (7th Cir. 2000).

“Due process does not … require a judicial or quasi-judi-

cial trial … before a school may punish misconduct.” Coronado

v. Valleyview Pub. Sch. Dist. 365-U, 537 F.3d 791, 795 (7th Cir.

2008) (citations and internal quotation marks omitted). In ad-

dition to notice, the Constitution requires only that students

facing expulsion receive a meaningful opportunity to be

heard. Id.; Remer v. Burlington Area Sch. Dist., 286 F.3d 1007,

1010 (7th Cir. 2002) (citing Linwood v. Bd. of Educ., 463 F.2d 763,

769–70 (7th Cir. 1972)). Hess received exactly that. He had a

hearing, at which he was permitted to call witnesses, question

those witnesses, and testify on his own behalf; and he had

counsel, present with him and advising him, throughout that

proceeding. These procedural safeguards were constitution-

ally adequate.

B. Substantive Due Process

Because there is no fundamental right to education, see

Charleston, 741 F.3d at 774 (citing San Antonio Indep. Sch. Dist.

v. Rodriguez, 411 U.S. 1, 35–37 (1973)), Hess’s substantive due-

process claim, like his procedural claim, rests on the alleged

deprivation of an independent property or liberty interest, see

id. (citing Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603

(7th Cir. 2009)). We again suppose the existence of such an in-

terest here, and ask instead whether the alleged deprivation

of that interest was constitutionally problematic. To demon-

strate a substantive due-process violation, Hess must show

that the university’s actions were so wholly arbitrary as to

“shock[] the conscience.” Remer, 286 F.3d at 1013 (quoting

No. 16-1064 17

Dunn v. Fairfield Cmty. High Sch. Dist. No. 225, 158 F.3d 962,

965 (7th Cir. 1998)); see also id. (“Only the most egregious offi-

cial conduct is arbitrary in the constitutional sense.” (quoting

Dunn, 158 F.3d at 965)) (internal brackets and quotation marks

omitted).

Hess argues that Trisler’s conduct was egregious enough

to shock the conscience, because there was no evidence that

Hess had stabbed Aaron Franks. Thus, Hess contends, there

was no evidence supporting Trisler’s decision to expel Hess

from SIU, as the lesser charges of disorderly conduct, etc.,

would not have warranted such an extreme (and, according

to Trisler, rarely-used) sanction. It is true that not all of the

available evidence pointed to Hess as Franks’s attacker. Hess’s

girlfriend, for example, testified at the hearing that she had

been holding Hess’s hand before Hess had gone after Franks,

and that the two men had “never made bodily contact.” And

Officer Byrne testified that he did not think Hess had been

involved in the “incidents of battery” inside the bar. Byrne

also stated that the police had uncovered no evidence that

Hess had had a knife with him that morning.

Franks, however, had described his attacker, and that de-

scription—by Hess’s own admission—closely matched Hess’s

appearance on the morning in question. 4 Hess argues that

Trisler should not have given the description any weight, be-

cause Franks’s credibility was never tested. And it was never

tested, says Hess, because Franks was not called as a witness

4 Hess complains that Trisler referred to Franks’s description as an

“identification,” when in fact no line-up or other formal identification pro-

cedure was used. While a formal identification may have been stronger ev-

idence of Hess’s culpability, this does not mean that the description Franks

did provide ought not to have been considered at all.

18 No. 16-1064

at the hearing—an omission Hess seeks to lay at the feet of the

university. The criticism is misplaced. Trisler could have

asked Franks to attend the hearing, but Hess could have done

so, as well. Hess also could have asked Trisler to make the re-

quest on his behalf, as explained in Section 4.4 of SIU’s Stu-

dent Conduct Code. Hess did neither. And more importantly,

at the hearing, Hess did not communicate any reasons he may

have had for suspecting Franks was lying. 5 Trisler, mean-

while, had reason to be skeptical of Hess’s story. According to

Hess—as he explained to the police in November 2013 (and

as reflected in the police report provided to SIU)—he had run

after Franks because Franks had punched Hess’s sister in the

face. Yet the sister did not have on her face any markings in-

dicating she had in fact been hit there, and she did not seek

criminal charges against Franks until after her brother had

been arrested for the stabbing (which was almost a week after

the incident had taken place). Franks, moreover, was bleeding

from multiple stab wounds when the attack on Hess’s sister

purportedly took place. Trisler thought it odd—and we can-

not say he was wrong to so believe—that someone with

Franks’s injuries would act so aggressively toward a woman

he did not know.

We do not say that all signs pointed to Hess as the person

responsible for the stabbing. But there was enough evidence

of Hess’s culpability to preclude us from disturbing Trisler’s

assessment of guilt. See McDonald v. Bd. of Trs. of Univ. of Ill.,

375 F. Supp. 95, 102–03 (N.D. Ill. 1974) (explaining that a dis-

ciplinarian’s findings must be sustained where supported by

5For example, Hess now suggests that Franks knew him, and so

would have referred to him by name if Franks had actually intended to

identify Hess as Franks’s attacker.

No. 16-1064 19

“some,” but not necessarily substantial, evidence), aff’d and

adopted by McDonald v. Bd. of Trs. of Univ. of Ill., 503 F.2d 105

(7th Cir. 1974). The Fourteenth Amendment is not a vehicle

for re-litigating in federal court evidentiary questions arising

in school disciplinary proceedings, or for correcting a univer-

sity’s allegedly bad decision-making. See Wood v. Strickland,

420 U.S. 308, 326 (1975); Flint v. City of Belvidere, 791 F.3d 764,

770 (7th Cir. 2015) (citations omitted). To succeed on his sub-

stantive due-process claim, Hess needed to show much more:

He needed to show that defendants acted with a mens rea ap-

proaching that of criminal recklessness. See Flint, 791 F.3d at

770 (citations omitted). Even when viewing the facts in Hess’s

favor, no reasonable juror would find such recklessness here. 6

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.

6 Because there was no constitutional violation, we do not reach de-

fendants’ alternative argument that the individual administrators are

qualifiedly immune from suit.