J. Endres v. Ne. Ohio Med. Univ.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0222p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

J. ENDRES, ┐

Plaintiff-Appellant, │

│

│

v. │

> No. 18-3825

│

NORTHEAST OHIO MEDICAL UNIVERSITY; NORTHEAST │

OHIO MEDICAL UNIVERSITY BOARD OF TRUSTEES; │

SANDRA EMERICK; JAY A. GERSHEN, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 5:17-cv-02408—Sara E. Lioi, District Judge.

Argued: May 2, 2019

Decided and Filed: August 30, 2019

Before: MERRITT, KETHLEDGE, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: John S. Marshall, MARSHALL AND FORMAN LLC, Columbus, Ohio, for

Appellant. Todd R. Marti, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,

for Appellees. ON BRIEF: John S. Marshall, MARSHALL AND FORMAN LLC, Columbus,

Ohio, for Appellant. Todd R. Marti, Anthony J. Farris, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellees.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 2

_________________

OPINION

_________________

NALBANDIAN, Circuit Judge. Northeast Ohio Medical University (“NEOMED”)

dismissed Julian Endres, a medical student, for cheating on a test. Endres denies cheating, but

his guilt or innocence is not relevant to this appeal. Instead, this appeal presents two questions.

The first concerns when Endres should have brought the claims that he brings here. And the

second concerns what process the school should have afforded him before dismissing him. After

his dismissal, Endres sued NEOMED, its president and board of trustees, and a NEOMED

administrator, Sandra Emerick, alleging violations of his right to procedural due process, along

with the Americans with Disabilities Act and the Rehabilitation Act of 1973. But before

considering the substance of those claims, the district court dismissed Endres’s complaint as

untimely. The district court also held that even if Endres’s due process claim were timely,

Emerick is entitled to qualified immunity. Endres appeals that decision.

We hold that Endres’s claims are timely and REVERSE the district court’s dismissal of

his complaint. Endres has also alleged facts which, taken as true, establish several violations of

his procedural due process rights. But because the contours of those rights were not clearly

established, we AFFIRM the district court’s grant of qualified immunity to Emerick, which

immunizes her from damages though not from injunctive relief.

I.

Julian Endres has Attention Deficit Hyperactivity Disorder (“ADHD”). Since his

diagnosis at age six, Endres has taken medication to treat that condition, beginning with Ritalin,

and he seemed to manage well. Endres graduated from high school as valedictorian and enrolled

in the accelerated B.S./M.D. program at the Northeast Ohio Medical University (“NEOMED”), a

public university. After completing his undergraduate studies in two years, graduating magna

cum laude, Endres began medical school.

When Endres started his second semester of medical school, he experienced a new side

effect from Ritalin. Endres alleges that around March 2015, he felt that the medicine was over-

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 3

sedating him and making him lethargic—so he stopped taking it altogether. By that time, Endres

had passed fourteen of the fifteen required classes to complete his first year of medical school,

but he still had one class left. No longer on Ritalin, Endres failed that class. So NEOMED made

Endres repeat the entire first-year curriculum during the following academic year, including the

fourteen classes he had passed.

Before he returned to NEOMED that fall, Endres consulted with his physicians to find a

medicine that would treat his ADHD without inducing the unwanted side-effects, and in August

2015, Endres switched to Strattera. Endres alleges that Strattera helped him concentrate without

making him feel drowsy but that it was not a magic bullet. Unlike Ritalin, Strattera did not

suppress his fidgeting. Even so, he stuck with the new medicine.

The Test. Back at NEOMED, Endres re-enrolled in the mandatory first-year curriculum,

including Human Development and Structure (“HDS”), taught by Professor Hans Thewissen. It

made no difference that Endres passed HDS the prior year because he had to retake all first-year

classes.

Tests at NEOMED are a serious undertaking. Students take their tests on NEOMED’s

laptops, using a special software program that allows them to zoom in and out and manipulate

the images on the screen. Endres alleges that NEOMED’s laptops are set at the lowest

brightness level and that students cannot make the screen any brighter. And while students are

taking tests, NEOMED officials are watching—both with their own eyes and with a camera that

records students taking examinations. Students knew that NEOMED was filming them. Indeed,

Endres had worked part-time as an assistant, helping NEOMED professors set up the camera to

record class lectures.

This case involves the 25-question test Endres took on September 28, 2015, as part of the

HDS course. Endres sat directly in front of the camera. And as it turned out, the camera focused

on Endres throughout much of the test. Footage from the test reveals Endres fidgeting and

repeatedly glancing toward his right—and in the direction of his seatmate’s (“Student B”) laptop.

Endres concedes that his eye movements and sideways glances might look suspicious to

someone watching the video with no context, but he offers an alternate explanation. According

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 4

to Endres, Student B repeatedly used the software’s zoom feature, which created brief flashes of

light that caused Endres to look repeatedly to the source. In any event, Endres contends that it

was physically impossible to see any legible content on the laptop to his right, both because he

was sitting about five feet away, and because all laptops were set to the lowest brightness level.

When the test ended, one of the proctors completed an irregularity report, noting that

Endres appeared to look repeatedly at the laptop to his right—but that perhaps he was just

nervous. That report made its way to Sandra Emerick, NEOMED’s chief officer of student

affairs. And so NEOMED’s investigation of Endres began.

The Investigation and Referral to CAPP. Endres alleges that Emerick began a three-day

investigation into his conduct during the September 28 test. Emerick reviewed the video

recording of the test and obtained Endres’s and Student B’s answer keys, which revealed that

84% of their answers were identical. Student B and Endres answered the same six questions

incorrectly, the same fifteen questions correctly, and the same four questions differently. In the

end, Endres scored a 72 while Student B scored a 64. The class mean was a 56.5. Emerick then

sent her findings to several university administrators and professors, including Thewissen,

writing that the video footage “clearly” showed Endres “viewing peer’s computer screen

repeatedly during the exam,” and noting in boldface that “84% of the tests were identical.”

(R. 23, First Am. Compl. at ¶ 47.)

NEOMED’s student handbook outlines various procedures to address allegations of

student misconduct, including cheating, and gives NEOMED administrators discretion over

which procedures to use. Under the handbook, the chief officer of student affairs works with

several administrators to decide where to refer misconduct allegations. The administrators have

three basic options—they may refer the allegations to: (1) a formal disciplinary body; (2) the

Committee on Academic and Professional Progress (“CAPP”); or (3) a less formal process, such

as counseling or mediation. When administrators refer a matter to the formal disciplinary body,

the student has a right to an adversarial hearing—where he may learn the evidence against him,

cross-examine witnesses, and present evidence in his defense.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 5

Emerick referred the matter to CAPP, which reviews issues related to academic

performance and professionalism. CAPP accepted the referral and later sent Endres a letter

notifying him that he had to attend a hearing on October 21, where a panel would discuss the

“professionalism concern,” as well as Endres’s “overall educational performance.” (Id. at ¶ 80.)

The letter instructed Endres to review his student file and to complete a student interview form

with Emerick, which Emerick would then add to his student file and present to CAPP at the

hearing.

Emerick Meets with Endres. After referring the matter to CAPP, Emerick called Endres

for a brief meeting on October 7, marking the first time that he learned of the allegations against

him. Endres alleges that he was “completely stunned” to learn that he stood accused of cheating.

(Id. at ¶ 72.) And when Emerick showed Endres footage of the test, Endres alleges he was

“shell-shocked to see how ‘bad’ his fidgeting and side-glances caused by distractions looked.”

(Id.) Endres informed Emerick that he had recently switched from Ritalin to Strattera, which did

not suppress his fidgeting, so Emerick requested that Endres provide documentation from his

doctor about the medication change. Less than a week later, Endres’s doctor, Dr. Caroline

Ramos, sent Emerick a letter describing Endres’s ADHD, along with medical records

documenting Endres’s medication adjustment between April and August 2015. Ramos stated

that she viewed the video recording and found that Endres’s behavior during the test mimicked

the fidgeting that Endres had described at an April 2015 appointment. Ramos also suggested that

because Endres had recently started the Strattera, NEOMED should make certain

accommodations for him, especially so that no one would misinterpret his fidgeting as academic

misconduct.

After the initial meeting, Endres emailed Emerick about his case. Endres explained to

Emerick that the position of the laptops prevented a test-taker from viewing any meaningful

information on a nearby laptop. So Endres requested that CAPP recreate the testing conditions

through a “field test,” which would prove that it was impossible to cheat. Endres alleges that

Emerick never responded to that request. In the same email, however, Endres requested

information and evidence on his case, and Emerick responded to that request, explaining that his

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 6

official student file contained all information from the investigation that she would present to

CAPP.

On October 14, Endres visited the student enrollment office to review his file. Endres

alleges that he found a folder containing all of his records since he applied to NEOMED as a

high-school student—and in no particular order. According to Endres, his file contained only

two records related to the misconduct allegation: (1) an email from Emerick, referring the matter

to CAPP; and (2) Endres’s and Student B’s answer keys to the September 28 test. Endres alleges

that the proctor’s irregularity report was missing from his file, prompting him to email Emerick

and request to view the report. Endres returned to the student enrollment office the next day to

view the report, which was then in the file.

Endres met once more with Emerick before the CAPP hearing. He alleges that Emerick

did not discuss any information about his case or describe to him the evidence that she would

present before CAPP. Endres then submitted his student interview form, a personal statement, a

statement from Dr. Ramos, and his medical records, which CAPP could review during the

hearing.

The First CAPP Hearing. CAPP conducted the first hearing on October 21. CAPP

procedures allow the accused student to speak to his unsatisfactory performance and respond to

questions from committee members but do not allow the accused student in the room while the

committee reviews documents about his case. So the meeting began with Emerick in the room,

presenting the case against Endres, while Endres waited down the hall. After Emerick finished

her presentation, the panel allowed Endres into the room, and he presented his case. Endres

explained to the panel that it would be physically impossible to commit the alleged misconduct

and described the field test he conducted with three randomly selected NEOMED students.

According to Endres, all three students agreed that it was impossible to view any information on

the laptop immediately to their right—even if they turned their heads and stared directly at the

laptop. Endres also explained his sideways glances, telling the panel about his recent medication

change and that Strattera did not suppress his fidgeting or movements. And Endres noted that

the flashes of light from Student B’s computer repeatedly distracted him during the test. As

Endres explained, NEOMED’s laptop software allows students to zoom in on pictures and

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 7

diagrams, causing a color change on the laptop screen—and for Endres, a flash appearing in the

corner of his eyes. This prompted him to turn repeatedly to his right, whenever his seatmate

adjusted the content on the laptop. Finally, Endres discussed the exam answers themselves.

Although Endres did not have the answer keys for the entire class, he explained that the

percentage of identical answers that two students might share simply turns on their scores and

the number of correctly or incorrectly answered questions. According to Endres, the normal

distribution range of similarity for two students who scored a 64 and a 72 (Student B’s score and

Endres’s score, respectively) would be between 64% and 92%. Thus, Endres explained that the

fact that he and Student B answered 84% of the questions identically was unremarkable.

After Endres completed his 30-minute presentation, the panel questioned him about why

he did not request an accommodation before taking the test. Endres explained that before

September 28, he had not taken any test while on Strattera and that he had never needed any

accommodations while on Ritalin. Endres alleges that Emerick remained in the room throughout

his presentation and the panel’s questions. But according to Endres, the panel did not inform

Endres about any part of Emerick’s presentation, nor did the panel ask Endres any questions

related to that presentation.

Endres left the room, and the panel began its deliberations with Emerick still present.

Emerick called Endres the next day, telling him that the panel found him responsible for the

misconduct. Endres later received an email informing him of the consequences of CAPP’s

decision. He could: (1) withdraw within four days, in which case his transcript would state that

he had withdrawn; (2) accept the decision for dismissal, in which case his transcript would state

that he had been dismissed; or (3) request an appeal of CAPP’s decision if there is “significant

and compelling new information” unavailable at the hearing or if he had evidence that there was

a defect or irregularity in the proceedings. (Id. at ¶ 118.)

Endres and His Parents Meet with Emerick. Two days after the hearing, Endres and his

parents met with Emerick. Emerick discussed the evidence that she presented during the hearing

and that the committee relied on in reaching its decision. One key piece of evidence was a

statistical analysis from Professor Thewissen (“Thewissen Analysis”), which claimed that there

was a 0.000036% chance that two students would have six identical wrong answers. Endres

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 8

alleges that this was the first time he learned about the Thewissen Analysis and that the analysis

was not present when he reviewed his student file before the hearing. The other key piece of

evidence was Emerick’s verbal interpretation of the video recording from the test. Emerick

relayed to Endres and his parents that the panel did not believe that his ADHD caused his eye

movements and that he should have used his right hand to shield his eyes from the occasional

flashes of light.

Endres Files Appeal, Requests Additional Evidence. NEOMED’s student handbook

provides students with a limited right of appeal. The Executive Review Committee (“ERC”)

considers appeals—but only if the student presents “significant and compelling new information

that was not available for presentation [to CAPP], or evidence of a defect or irregularity in the

CAPP [ ] Committee proceeding.” (R. 25, Mot. to Dismiss Appx. at PageID #691.) The student

must file an appeal (NEOMED calls it a “Petition for Executive Review”) within four working

days after learning of CAPP’s decision, and if he fails to file an appeal in that time, CAPP’s

“decision becomes final.” (Id.) Moreover, CAPP’s decision becomes final if the ERC declines

to accept the appeal. (Id.)

After the meeting with Emerick, Endres requested additional evidence related to the

exam, which he planned to introduce on appeal. In particular, Endres sought: (1) the student

performance report for the entire HDS class, containing each individual score and answer key;

(2) the Thewissen Analysis; and (3) timestamp reports from the laptop software, showing

precisely when Student B and Endres answered each exam question. Although NEOMED first

declined to provide Endres with this evidence, it ultimately turned over those records on the eve

of Endres’s deadline to appeal.

Hours later, Endres filed his appeal with the ERC and submitted new evidence, including:

(1) hundreds of test comparisons based on the actual data from the HDS class, which Endres

alleges undermined the Thewissen Analysis and the fact that his answers and Student B’s

answers were 84% similar; (2) signatures from HDS students, who agreed that it was impossible

to view content on a nearby laptop; and (3) a psychological evaluation from Dr. Andrew

Trauben, a psychiatrist specializing in ADHD, who reviewed the video of the test and met with

Endres to evaluate his symptoms. Endres tried to submit additional evidence after filing his

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 9

appeal, including his own statistical analysis that allegedly debunked the Thewissen Analysis.

Hours before the ERC hearing, however, Emerick emailed Endres to notify him that the ERC

would not accept his report and that he could not distribute copies of that report to ERC

members.

The ERC Hearing. The ERC conducted a hearing on November 2, using the same

procedures as CAPP. This meant that Emerick presented her case while Endres waited outside

the room until it was his turn to speak. Endres then entered the room, and although he could not

distribute copies of his statistical analysis, he described that analysis—as well as flaws in

Emerick’s statistical comparison and the Thewissen Analysis. As Endres explained, Emerick’s

statistical comparison—that he and Student B had answered 84% of the questions identically—

proved no misconduct. Of the 160 HDS students who took the exam, more than 80 students had

85% similar answers with at least one other student in the class. And more than two-thirds of the

class had six or more identical wrong answers with at least one other student in the class.

According to Endres, that data refuted the Thewissen Analysis’s claim that the probability two

students would mistakenly answer the same six questions was 0.000036%.

The next day, Endres received a letter from the ERC granting him a rehearing before

CAPP but restricting the information he could present. While Endres could introduce Trauben’s

report, he could not submit any evidence contesting the Thewissen Analysis.

The Second CAPP Hearing. Knowing that CAPP would not consider his statistical

analysis, Endres sent test data to Thewissen and asked him to defend his findings given the full

class data. Thewissen declined to review the data, and NEOMED’s legal counsel later informed

Endres that Thewissen was not open to making any statement about potential errors in his

analysis. That said, NEOMED’s legal counsel told Endres that the CAPP committee had agreed

to allow Trauben to speak at the hearing—and that the committee members would have some

questions for the physician.

Several hours before the second CAPP hearing on November 18, NEOMED’s legal

counsel issued a limiting instruction to the CAPP:

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 10

Please be advised that during our deliberations today, the Committee should

accord no weight to any statement made or documents presented during the initial

hearing in [Endres’s] CAPP case that recounted any statistical analysis performed

on his test answers. Consistent with disregarding any statements made or

documents presented about any statistical analysis, the committee is to likewise

accord no weight to any documents set forth by [Endres] throughout his appeal

that include any statistical analysis of his test answers. While these documents

were included in the record received by the Committee in advance of today’s

meeting, they should not be considered during our review of this matter today, or

in making a decision.

(R. 23, First Am. Compl. at ¶ 157.) This meant that Endres could not discuss the Thewissen

Analysis or distribute any material about that analysis at the hearing. Nor could Endres

introduce recorded video from a field test, which he alleges proved that it was physically

impossible to view content on a neighboring laptop.

The second CAPP hearing proceeded much like the first hearing. Emerick presented her

case, after which Endres entered the room to present his version of events. Endres alleges that

CAPP only allowed him to speak generally and that he could not present, distribute, or discuss

any material that would have exonerated him, such as a video recording from a field test he

conducted. According to Endres, the recording would have proven that it was physically

impossible for any student to view content on a neighboring laptop. CAPP then called Trauben,

who reiterated that Endres’s behavior during the test was a manifestation of his ADHD. Endres

alleges that the committee asked Trauben some questions about his credentials and qualifications

to write the report he submitted on behalf of Endres. The next day—November 19, 2015—

Endres learned that the committee had voted to dismiss him.

The Emerick Memo. Several days after the second CAPP hearing, Endres obtained a hard

copy of his student file, which he alleges contained information he had not reviewed before that

hearing. Endres reviewed the file on November 11, when it was supposed to include all evidence

and information that Emerick would present at the second CAPP hearing. But when he reviewed

the file after that hearing, it contained new evidence: a memo from Emerick (“Emerick Memo”),

dated November 2.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 11

Endres alleges that the Emerick Memo inaccurately summarizes Emerick’s conversations

with two of his physicians, Ramos and Trauben. Indeed, Ramos and Trauben submitted

affidavits stating that the Emerick Memo did not faithfully memorialize their conversations with

Emerick and that its content was either false, misleading, or taken out of context. For example,

the Emerick Memo states that Trauben “understood that he needed a quick turn around on

documentation in order to submit a CAPP appeal letter.” (Id. at ¶ 171.) But Trauben explained

in his affidavit that “[t]hat sentence appears to suggest that my analysis of Mr. [Endres], or the

opinion I rendered, was compromised because of the timeframe in which it was completed. That

is not so, and it is not something I ever conveyed to [Defendant Emerick.]” (Id.) Trauben

concluded that Emerick “did not faithfully memorialize the contents of our telephone call.” (Id.

at ¶ 173.)

Ramos recounted similar inaccuracies and misrepresentations in the Emerick Memo. The

Emerick Memo states that “Dr. Ramos only met with [J. Endres] three times in total” and that

Ramos did not meet with Endres before submitting her October 13th letter documenting her

treatment of Endres. (Id. at ¶ 174.) Ramos objects to both statements, noting that she met with

Endres three times within a four-month period in 2015, including an August meeting about a

month before Endres took the HDS test. Ramos explained that she met with Endres more often

than she does with most of her patients. The Emerick Memo also alleges that Ramos “simply

prepared the letter based upon the materials [Plaintiff’s] parents sent her via jump drive

regarding [Plaintiff’s] case.” (Id. at ¶ 176.) Ramos described that statement as “false,” noting

that it “suggests that the views I expressed in my letter were somehow biased by information I

received from Mr. [Endres’s] parents.” (Id.) Finally, Endres accuses Emerick of falsely

characterizing his feelings toward his physicians and his medical care. Emerick allegedly told

Ramos that Endres blamed her for the side effects he experienced on Strattera. Yet Endres

alleges that he never told Emerick that Ramos was responsible and maintains that he—not his

physicians—wanted to try a different medicine. Endres hypothesizes that Emerick

mischaracterized his feelings to elicit a response from Ramos that would damage his credibility

before CAPP.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 12

Endres filed his two-count complaint in federal court on November 16, 2017, naming

NEOMED, NEOMED president Jay Gershen, NEOMED’s board of trustees, and Emerick as

defendants (“Defendants”). Endres’s first count, under 42 U.S.C. § 1983, alleges that Gershen,

Emerick, and the board of trustees violated his constitutional rights by depriving him of his

property and liberty interests in enrollment at NEOMED without procedural due process. His

second count, under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of

1973, alleges that NEOMED effectively concluded that his ADHD precluded him from

completing his medical studies—even though NEOMED could have made reasonable

accommodations to ensure that his ADHD-related symptoms would not create the appearance of

academic misconduct.

Defendants moved to dismiss the complaint on statute of limitation grounds, contending

that Endres’s two-year window to file his complaint started in October 2015, when CAPP first

concluded that Endres should be dismissed. Emerick also claimed qualified immunity. The

district court ruled for the Defendants, holding that the two-year statute of limitations barred

Endres’s suit and that in any case, Emerick is entitled to qualified immunity. Endres appeals that

decision.

II.

We review de novo the district court’s dismissal of a complaint on statute of limitations

grounds. Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003). Neither § 1983, the

ADA, nor the Rehabilitation Act provides a statute of limitations, so courts must borrow one

from the most analogous state cause of action. McCormick v. Miami Univ., 693 F.3d 654, 663

(6th Cir. 2012). This court has applied Ohio’s two-year statute of limitations governing personal

injury actions to Ohio cases arising under § 1983, the ADA, and the Rehabilitation Act. Banks,

344 F.3d at 553 (applying two-year period to § 1983 suit); McCormick, 693 F.3d at 663

(applying two-year period to ADA suit); Bishop v. Children’s Ctr. for Dev. Enrichment,

618 F.3d 533, 536 (6th Cir. 2010) (applying two-year period to Rehabilitation Act suit). This

appeal, however, is not about the length of the limitations period, which both parties agree is two

years. Rather, it turns on when the limitations period starts to run, and federal law holds the

answer to that question. See Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, the

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 13

statute of limitations period begins “when the plaintiff knows or has reason to know of the injury

which is the basis of his action.” Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984) (citations

omitted). Therein lies the heart of this dispute.

Endres and Defendants agree that the injury triggering this suit is Endres’s dismissal from

NEOMED. But the disputed question is when Endres learned that he had no future at

NEOMED. According to Endres, the limitations period began on November 19, 2015, when he

learned the outcome of the second CAPP hearing. If Endres is correct, then his claim is timely

because he filed his complaint on November 16, 2017, within the two-year statute of limitations.

But Defendants say the limitations period began on October 22, 2015, when Endres learned the

outcome of the first CAPP hearing, and if they are correct, Endres’s claim is time-barred.

Both parties point us to Delaware State College v. Ricks, in which the Supreme Court

held that a college professor’s employment discrimination claim was time-barred. 449 U.S. 250,

254 (1980). The case warrants close study. After the plaintiff, Ricks, had been teaching at

Delaware State College for about three years, the college’s tenure committee recommended in

February 1973 that he not receive tenure. Id. at 252. That committee agreed to reconsider its

decision in a year, and it did so in February 1974, adhering to its original recommendation. Id.

Next, the faculty senate voted to approve the committee’s recommendation, and in March 1974,

the board of trustees voted to deny Ricks tenure. Id. Ricks then filed a grievance with the

board’s educational policy committee, and in May 1974, that committee took the grievance

under consideration. Id. Although the college denied him tenure, Ricks was not immediately

jobless. The college had a policy of providing junior faculty members who had been denied

tenure with a one-year terminal contract, and Ricks received one of those contracts on June 26,

1974. Id. at 253–54. The board informed Ricks on September 12, 1974, that it had denied his

grievance, so Ricks left the college when his contract expired on June 30, 1975.

Ricks turned to federal court for relief, filing his employment discrimination claim on

September 9, 1977. Id. at 254. Up against a statute of limitations defense, Ricks argued that the

statute of limitations period commenced on June 30, 1975, when his contract with the college

ended. The Court rejected that argument, noting that the “termination of employment at

Delaware State is a delayed, but inevitable, consequence of the denial of tenure.” Id. at 257–58.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 14

According to the Court, the limitations period began when the college communicated to Ricks its

final, official decision to deny him tenure. Id. at 259. That happened when the college offered

Ricks a one-year terminal contract on June 26, 1974, by which point “the tenure committee had

twice recommended that Ricks not receive tenure; the Faculty Senate had voted to support the

tenure committee’s recommendation; and the Board of Trustees formally had voted to deny

Ricks tenure.” Ricks, 499 U.S. at 262. In short, the college “had established its official

position—and made that position apparent to Ricks.” Id.

Defendants contend that CAPP’s first decision to dismiss Endres commenced the statute

of limitations, calling CAPP’s October 22 letter an “unequivocal” signal that Endres’s “time at

NEOMED had come to an end.” (Appellee Br. at 24.) According to Defendants, Endres “must

have known” that the first CAPP decision “constituted a rejection of his disability-based

assertions,” thus placing him on notice of his impending dismissal and triggering the limitations

period. (Id.) But for that argument to hold any weight, we would have to ignore the existence of

NEOMED’s appeals procedure. To be sure, NEOMED students are not entitled to an appeal as a

matter of course. Only if a student sets forth “significant and compelling new information that

was not available for presentation to the CAPP [ ] Committee, or evidence of a defect or

irregularity in the CAPP [ ] Committee proceeding” will the ERC consider the appeal. (R. 25,

Mot. to Dismiss Appx. at PageID #690.) But Endres alleged precisely that—both that Emerick

presented evidence, including the Thewissen Analysis, that he never had a chance to review

before the first CAPP hearing (a procedural defect) and that his statistical analysis undermined

the accuracy of the Thewissen Analysis (significant and compelling new information that he

could have not presented until learning that the Thewissen Analysis existed). Far from

“establish[ing] its official position—and ma[king] that position apparent to [Endres],” the ERC

remanded the matter to CAPP, giving Endres a second chance to defend himself against

allegations of misconduct. Ricks, 499 U.S. at 262. NEOMED did not reach a final decision—

and communicate that decision to Endres—until it informed him on November 19 that the

second CAPP panel voted to dismiss him, at which point Endres had exhausted the appeals

process.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 15

Citing Ricks, Defendants also contend that NEOMED’s appeals process is analogous to a

collateral attack on CAPP’s decision, in which case Endres’s appeal would not have tolled the

statute of limitations. In Ricks, the E.E.O.C. filed an amicus brief, arguing that the statute of

limitations did not start until the college notified Ricks that it denied the grievance he filed after

the board of trustees voted to deny him tenure. Id. at 260. The Court rejected that argument,

drawing a critical distinction between collateral and direct review of a hiring decision. Although

a meritorious grievance may well change the result of an adverse hiring decision, a grievance is a

“remedy for a prior decision, not an opportunity to influence that decision before it is made.” Id.

at 261 (emphasis in original). Thus, a pending grievance or “some other method of collateral

review of an employment decision, does not toll the running of the limitations period.” Id.

(citing Elec. Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976)). But Ricks also suggests

that the statute of limitations will not begin until the institution conveys its final decision to the

plaintiff. There, the Court did not select February 1973—when the college’s tenure committee

first recommended denying Ricks tenure—as the accrual date for Ricks’s claim. Not until the

tenure committee reevaluated that decision one year later, the faculty senate approved that

decision, the board of trustees voted to deny Ricks tenure, and the college extended Ricks a one-

year terminal contract did Ricks’s claim accrue.1

Although Defendants are correct that a collateral challenge to a final decision will not toll

the statute of limitations, their argument misses the mark because Endres’s appeal was not

collateral. A collateral challenge necessarily implies the existence of a final decision, but

NEOMED’s own procedures tell us that the appeals process postpones the finality of a CAPP

decision. For one, the student has four working days to appeal an adverse CAPP decision to the

ERC. Failure to file an appeal within that timeline amounts to a “waiver of the right to appeal,

and the decision becomes final.” (R. 25, Mot. to Dismiss Appx. at PageID #691.) That of course

implies that CAPP’s decision does not become final until—at the earliest—four working days

1In a footnote, the Court hinted that the accrual date may have occurred in March 1974, when the college’s

board of trustees voted to deny Ricks tenure, even though the district court held that Ricks’s claim accrued when the

college extended him a one-year terminal contract in June 1974. Ricks, 449 U.S. at 262 n.17. Ricks filed his

grievance against the college after the board’s vote—but before the college offered the contract. In any event, the

Court concluded that even if the claim accrued in June 1974, Ricks’s claim was still untimely, noting that “[w]e

cannot say that [the district court’s] decision was erroneous.” Id. at 262.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 16

after its issuance. Second, NEOMED’s procedures explain that if the ERC refuses to grant the

student’s appeal, the CAPP decision becomes final. Again, that implies that the CAPP decision

is not final while an appeal request is pending before the ERC or after the ERC grants the appeal

and remands the matter to CAPP for reconsideration, as it did here. And when the ERC remands

the matter for reconsideration, it effectively gives the accused student another shot at proving his

innocence. That is, the student gets another “opportunity to influence [CAPP’s] decision before

it is made.” Ricks, 449 U.S. at 261 (emphasis in original).

Defendants’ arguments fare no better under this court’s precedents. Defendants draw our

attention to Janikowski v. Bendix Corp., in which we held that the plaintiff’s repeated requests

for relief from an adverse decision did not toll the statute of limitations period for his

employment discrimination claim. 823 F.2d 945, 948 (6th Cir. 1987). We find that comparison

inapt. In Janikowski, the plaintiff’s employer announced a workforce reduction plan and

informed the plaintiff on September 4, 1980, that his position would end on September 30, 1981.

Id. at 946. Following up in November 1980, the plaintiff’s employer sent him a memo,

reminding him that his position would no longer exist on September 30, 1981, and warning him

that if he did not find a different position within the company, his employment with the company

would also end. Id. The employer gave the plaintiff time off to interview, but as September

1981 approached, the plaintiff had still not found employment, either within the company or

elsewhere. Id. So the plaintiff negotiated to postpone his termination, and the employer agreed

to retain him on a month-to-month basis—but ultimately terminated him on November 30, 1981.

Id.

We agreed with the district court that the three-year statute of limitations barred the

plaintiff’s suit, which he filed more than three years after his claim accrued. We found that the

accrual date was September 4, 1980, when the plaintiff received “notice of termination, not when

his employment actually cease[d].” Id. True, the employer accommodated the plaintiff, even

after the September 30, 1981, deadline had passed, but there was never any question that the

employer would terminate the plaintiff’s position. Although the plaintiff sought more time to

“avoid the consequences of the termination,” he knew on September 4, 1980, that his position

would not exist in about a year. Accordingly, we repeated the Supreme Court’s remark that in a

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 17

statute of limitations analysis, “the proper focus is on the time of the discriminatory act, not the

point at which the consequences of the act become painful.” Id. at 947 (quoting Chardon v.

Fernandez, 454 U.S. 6, 8 (1981)) (emphasis in original).

Under Janikowski, Endres could not argue (nor does he) that his claim accrued when

NEOMED made him clear out his dorm room and leave campus, even if the consequences of

NEOMED’s decision were most painful then. Rather, our statute of limitations analysis focuses

on the alleged wrong giving rise to the claim—here, NEOMED’s dismissal decision. Though it

was always a foregone conclusion that the employer in Janikowski would terminate the

employee’s position, Endres’s fate remained uncertain until the second CAPP panel voted to

dismiss him. Only then—by which point he had exhausted the appeals process—was there no

doubt that Endres would have to leave NEOMED.

As a last resort, Defendants argue it makes no difference that NEOMED provides an

appeals process because federal law controls when a claim accrues and the NEOMED handbook,

of course, is not federal law. Thus, Defendants claim that NEOMED’s procedures do not inform

our analysis. In support of that claim, Defendants cite Haeberle v. University of Louisville, in

which the plaintiff argued that because the University of Louisville is a “creature of the state of

Kentucky, it is therefore subject to the interpretations of the Kentucky Supreme Court and the

Kentucky legislature with respect to the finality of state entity decisions.” 90 F. App’x 895, 900

(6th Cir. 2004) (internal quotation marks omitted). We rejected that view, explaining that federal

law governs when the limitations period begins. Haeberle, however, is inapposite. Although the

plaintiff in Haeberle asked this court to apply Kentucky law—not federal law—to determine

when the statute of limitations commences, Endres makes no such request. Indeed, Endres does

not challenge our principle that the statute of limitations starts “when the plaintiff knows or has

reason to know of the injury which is the basis of his action.” Sevier, 742 F.2d at 273. That

principle—one of federal law—does not keep us from considering how NEOMED’s policies

may have informed Endres about his injury. That is not to say that the policies themselves have

independent legal significance or that we are substituting the policies in place of our law.

Rather, the policies help us determine when Endres knew that his time at NEOMED had ended.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 18

They reveal that until CAPP’s decision became final, Endres did not know for certain that he had

no future at NEOMED.

For these reasons, we conclude that the statute of limitations did not start until November

19, 2015, when Endres learned that the second CAPP panel issued a final, non-appealable

decision recommending his dismissal. Having filed his complaint within two years of that date,

Endres has satisfied the statute of limitations.

III.

Because Endres’s suit is timely, his claim under the ADA and the Rehabilitation Act may

go forward. But Endres also brings a claim under 42 U.S.C. § 1983, alleging that Sandra

Emerick violated his Fourteenth Amendment rights by depriving him of his liberty and property

interests in continued enrollment at NEOMED without procedural due process.2 Emerick, a state

official named in her official and individual capacity, argued below that she is entitled to

qualified immunity on Endres’s § 1983 claim. Although the district court held that Endres’s

entire suit was time-barred, it also held in the alternative that Emerick is entitled to qualified

immunity. Endres appeals that decision, which we review de novo. O’Brien v. City of Grand

Rapids, 23 F.3d 990, 998 (6th Cir. 1994).

In any qualified immunity analysis, we must answer two questions: (1) was there a

constitutional violation; and (2) if so, was the right clearly established when the violation

occurred? Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009). We consider each question in

turn.

A.

At the outset, Endres must show a constitutionally protected life, liberty, or property

interest to prevail on his procedural due process claim. Endres alleges both a property and

liberty interest in his continued enrollment at NEOMED, and our case law supports—at the very

2Endres sued NEOMED president Jay Gershen and NEOMED’s board of trustees in their official

capacities and Emerick in her official and individual capacity. As the district court noted, state defendants acting in

their official capacities are not “persons” under § 1983 with respect to claims for monetary damages. See, e.g.,

Gean v. Hattaway, 330 F.3d 758, 766 (6th Cir. 2003). Thus, Endres cannot seek money damages under § 1983 from

Gershen or NEOMED’s board of trustees.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 19

least—his alleged property interest. In Doe v. University of Cincinnati, we explained that a

university’s decision to suspend the student for two years “clearly implicates a protected

property interest” in the student’s continued enrollment at the university. 872 F.3d 393, 399 (6th

Cir. 2017) (internal quotation marks omitted). If a two-year suspension is sufficient, then surely

permanent dismissal is sufficient, too—and Emerick does not argue otherwise. Indeed, we have

repeatedly held that a state-university student facing a significant disciplinary decision, such as

expulsion, is entitled to “minimum due process protections.” Id.; Flaim v. Med. Coll. of Ohio,

418 F.3d 629, 633 (6th Cir. 2005).

So how much process is enough? To be sure, universities are not courts, and an accused

student cannot expect the same procedural safeguards as a criminal defendant. Flaim, 418 F.3d

at 635 n.1. Still, our cases tell us there must be some process; how much depends on the basis of

the dismissal. The Supreme Court has recognized a critical distinction between dismissals for

disciplinary misconduct and dismissals for academic underperformance. Compare Goss v.

Lopez, 419 U.S. 565 (1975), with Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78

(1978). When a school imposes a serious sanction like dismissal to address a student’s

disciplinary misconduct, the student is entitled to more robust process, including a hearing to

“present his side of the story.” Goss, 419 U.S. at 581. In Goss, one of the named plaintiffs, a

public high school student, allegedly participated in a lunchroom melee that destroyed some

school property, leaving high school administrators to resolve a binary, factual question: did the

student engage in that misconduct? Id. at 569 n.4. The administrators answered in the

affirmative and suspended the student without conducting a hearing, which, according to the

Court, violated the student’s procedural due process rights. The Court held that when a student

accused of misconduct faces “total exclusion from the educational process for more than a trivial

period,” he is entitled to an “opportunity to present his side of the story.” Id. at 576, 581. Even

if the evidence looks stacked against the student, “things are not always as they seem to be.” Id.

at 584. Thus, hearings “provide a meaningful hedge against erroneous action” by, at the very

least, allowing the student to alert administrators to factual disputes and breaks in causal chains.

Id. at 583.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 20

Academic inquiries, not always so cut-and-dry, are a different matter. In Horowitz, the

Court held that a medical school did not violate a student’s due process rights when it dismissed

her without a hearing because the basis for that dismissal was academic. 435 U.S. at 89–90. In

that case, the medical school faculty reported concerns with the student’s clinical performance,

not to mention that the student’s attendance at clinical sessions was “erratic” and that the student

“lacked a critical concern for personal hygiene.” Id. at 81. The medical school did not

summarily dismiss the student upon hearing these complaints but instead allowed her to spend

time with seven physicians, who would evaluate her performance and recommend whether she

should graduate on time. Id. Of those seven, two recommended that the medical school dismiss

the student immediately; three recommended that the school postpone her graduation. Id. The

medical school ultimately dismissed the student, id. at 82, so she sued, alleging that the medical

school violated her due process rights. Id. at 91.

The Court, however, found no constitutional violation. Unlike the factual question in

Goss—i.e., did the student engage in misconduct—the question that the medical school

administrators had to resolve in Horowitz was far from objective. As the Court explained,

measuring a student’s academic performance “by its nature [is] more subjective and evaluative

than the typical factual questions presented in the average disciplinary decision” and often

requires “an expert evaluation of cumulative information.” Id. at 90. It is also less contentious.

Although a student with poor grades may face the same consequences (e.g., dismissal) as the

student accused of disciplinary misconduct, the educational process itself “is not by nature

adversar[ial]” and therefore not as “readily adapted to the procedural tools of judicial or

administrative decisionmaking.” Id. Finally, in an academic context, the decision-makers are

not drawn by lot to find facts, like we ask laymen to do as members of a jury. Rather, they

exercise their “historic judgment” as educators to evaluate the student, and their decision is

entitled to substantial deference. Id.

In the end, the Court declined to “formalize the academic dismissal process by requiring

a hearing.” Id. So long as the university’s evaluation and ultimate decision is “careful and

deliberate,” the university meets the Due Process Clause’s requirements. Id. at 85. The upshot

for students facing dismissal on academic grounds is that “the due process afforded is minimal.”

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 21

Yoder v. Univ. of Louisville, 526 F. App’x 537, 549 (6th Cir. 2013) (citing Horowitz, 435 U.S. at

85; Ku v. Tennessee, 322 F.3d 431, 436 (6th Cir. 2003)). The university must provide the

student with notice of his unsatisfactory academic performance and deliver a “careful and

deliberate” decision on the student’s fate. Ku, 322 F.3d at 436 (citing Horowitz, 435 U.S. at 85–

86). But the university need not provide a hearing.

Whether Endres can show a constitutional violation turns on the basis for his dismissal.

Emerick claims that the dismissal was for academic reasons, meaning that NEOMED did not

even need to provide Endres with a hearing. Indeed, Emerick contends that Endres “received at

least as much process as was required for an academic dismissal.” (Appellee Br. at 32.) Endres,

by contrast, alleges that allegations of cheating fall squarely on the disciplinary side of the

disciplinary-academic divide, triggering more robust procedures under the Due Process Clause.

As Emerick acknowledges, the boundary between disciplinary misconduct and

unsatisfactory performance can be hazy, but she offers two signs of when a dismissal rests on

academic grounds: (1) the student’s conduct relates to the student’s prospects for success in his

chosen field; and (2) the university labels the student’s conduct as “academic” in its standing

procedures. We consider each in turn.

Emerick is correct that grades, by themselves, do not dictate a student’s prospects for

success in his chosen field and that the university may consider more than just grades to assess a

student’s academic standing. Following Horowitz, this court has endorsed a broad view of what

constitutes academic conduct. In Al-Dabagh v. Case Western Reserve University, we did not

second-guess the medical school’s decision to treat a student’s lack of professionalism as an

academic matter. 777 F.3d 355, 357 (6th Cir. 2015). Although he performed well academically,

the student arrived habitually late to important meetings, displayed a poor bedside manner

around patients, and harassed two female students at a school dance. Id. at 357–58. That

conduct prompted the medical school to contemplate dismissing the student, although the school

ultimately settled on some lesser sanctions. Id. at 358. But the shoe finally dropped after a

North Carolina court convicted the student for drunk driving, at which point the medical school

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 22

convened a committee and refused to certify him for graduation. 3 Id. The student sued, and

although he did not allege any due process deprivation, we said that his “dismissal on

professionalism grounds amounts to a deference-receiving academic judgment.” Id. at 359.

Noting that professionalism “has been a part of the doctor’s role since at least ancient Greece,”

we explained that academic evaluations “may permissibly extend beyond raw grades and other

objective criteria.” Id. at 360 (internal alterations, quotation marks, and citations omitted).

Medical schools have no interest in credentialing students with dim prospects in the

medical profession, be that because of low aptitude, poor hygiene, or drunkenness. And to the

extent that the medical profession demands certain traits in physicians, medical schools have

good reason to ensure that their students possess those traits. Even so, it cannot be the case that

because the alleged misconduct somehow relates to a professional trait, the medical school need

only treat the matter as academic and provide the student with minimal process. If that were so,

the medical school could reasonably construe all types of misconduct as a sign of the student’s

lack-of-professionalism and thus avoid providing the student with the heighted procedures that

the Due Process Clause may demand. To give an example, a medical school could treat

allegations of physical assault as academic, given that violent medical students might be likely to

disobey the commandment that as physicians, they first do no harm. By treating those

allegations as academic rather than disciplinary, the university could dismiss the accused student

without providing him the opportunity to contest facts or present evidence of his innocence, even

though this is exactly the type of situation that Goss says warrants a hearing. Such a broad

conception of academic conduct would swallow all forms of conduct, sweeping Goss into

oblivion and obviating the need to ever hold a disciplinary hearing. For these reasons, the

relationship between the conduct and the student’s future professional success cannot be what

distinguishes academic and disciplinary conduct.

Emerick points to a second sign that the conduct falls on the academic side of the

disciplinary-academic divide: the label that the medical school affixes to the alleged misconduct.

3After the student sued, the district court ordered the medical school to grant his diploma. Al-Dabagh,

777 F.3d at 358–59. The medical school did so—but then appealed to this court, and we reversed the district court’s

order. Id. at 361.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 23

According to Emerick, the student handbook defines cheating as a form of academic misconduct,

which supports the inference that the basis for Endres’s dismissal was academic. Endres,

however, correctly identifies two problems with that inference—one specific to NEOMED’s

polices, the other more universal. First, NEOMED’s student handbook does not state that

cheating is necessarily academic. The student handbook categorizes cheating as a form of

“academic misconduct,” which itself is a type of “student misconduct.” (R. 25, Mot. to Dismiss

Appx. at PageID #618.) But NEOMED administrators have discretion over how to adjudicate

allegations of student misconduct. As the student handbook explains, NEOMED’s chief officer

of student affairs—here, Emerick—must consult with other administrators and decide whether

the allegations are “best resolved through the formal disciplinary process . . . or by way of a

referral to Committee on Academic and Professional Progress (CAPP) or some other mechanism

such as counseling or mediation.” (Id. at PageID #613.) That is, NEOMED—acting through

Emerick—gets to decide whether allegations of cheating merit a disciplinary hearing or some

other type of adjudication with less rigorous procedures. Nothing in the student handbook,

however, suggests that cheating necessarily falls on the academic side of the disciplinary-

academic divide.

The second problem with Emerick’s argument is more general. Whether the university

describes conduct as academic or disciplinary does not dictate what process the Constitution

demands. As a default, it is the Constitution, not a university handbook, that establishes what

process is due: the Constitution sets “the floor or lowest level of procedures acceptable.” Flaim,

418 F.3d at 636; see also Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 566, 569 (6th Cir.

2011). Of course, parties may agree by contract to waive their constitutional rights, such as

when a student agrees to warrantless searches of his dormitory room as a condition of living in a

university building. See, e.g., Medlock v. Trs. of Indiana Univ., 738 F.3d 867, 872 (7th Cir.

2013). Such contracts, however, require “clear and unmistakable language” for us to infer that

one party has agreed to waive his constitutional rights—language not present in NEOMED’s

student handbook. Morrison v. Warren, 375 F.3d 468, 474 (6th Cir. 2004).

There is a more straightforward way to tell when the university’s decision is disciplinary

or academic. A decision is disciplinary when the university engages in first-level factfinding to

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 24

resolve a disputed, objective question about the student’s conduct—and the outcome of that

inquiry could lead to the student’s dismissal or a long suspension. Our method of distinguishing

academic from disciplinary decisions is not something of our own creation. Rather, it tracks the

distinction that the Supreme Court has drawn through Goss and Horowitz—and that courts have

followed. See, e.g., Fenje v. Feld, 398 F.3d 620, 625 (7th Cir. 2005) (describing disciplinary

dismissals as “being more objective in nature and not dependent upon the analytical expertise of

professional academicians”); Pugel v. Bd. of Tr. of Univ. of Ill., 378 F.3d 659, 663 (7th Cir.

2004) (“Courts addressing graduate student dismissals on charges of academic dishonesty

traditionally have relied upon Goss.”).

We underscore the critical difference between engaging in first-level factfinding and

drawing subjective conclusions from established facts. Al-Dabagh draws out this distinction. In

that case, the university refused to certify the student for graduation and effectively dismissed

him for lack of professionalism—an academic decision—when it learned of his North Carolina

conviction for drunk driving. Al-Dabagh, 777 F.3d at 358–59. Although drunk driving might

seem like inherently disciplinary conduct, the university was not adjudicating whether the

student had, in fact, driven while intoxicated. Rather, the university had to decide, given the

court’s decision, whether the student possessed the necessary traits to succeed in the medical

profession. That is a purely subjective inquiry, analogous to the university’s decision in

Horowitz, that does not warrant a hearing under the Due Process Clause.

The same goes when the university evaluates a student’s academic performance. It is

true that this type of evaluation “also involves [questions] of objectively determinable fact—e.g.,

whether the student gave certain answers on an examination.” Horowitz, 435 U.S. at 95 n.5

(Powell, J., concurring). But the purpose of the inquiry is not to answer an objective question

about the student’s conduct. Rather, the university’s “critical decision requires a subjective,

expert evaluation as to whether [the student’s] performance satisfies some predetermined

standard of academic competence,” which itself “is set by a similarly expert judgment.” Id. This

contrasts with a disciplinary inquiry, which “requires a factual determination as to whether the

conduct took place or not” and thus warrants more rigorous protections under the Due Process

Clause. Id.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 25

What does this all mean for Endres? Emerick referred the cheating allegations to CAPP,

which then resolved a disputed, objective question: whether Endres cheated on the September

28 test. In answering that question, CAPP engaged in first-level factfinding and ultimately

dismissed Endres, no doubt a serious sanction. The basis for Endres’s dismissal was

disciplinary, calling for more rigorous procedures under the Due Process Clause.

The next question is whether the process Endres received was sufficient. When a

university student faces a serious sanction like dismissal over allegations of disciplinary

misconduct, he is entitled to a “fundamentally fair hearing.” Flaim, 418 F.3d at 635 n.1 (citation

omitted). Endres received a hearing. But his allegations, which we must take as true at this

stage, reveal that hearing was far from fair. For one, the student has a “right to be present for all

significant portions of the hearing,” provided the hearing is live. Flaim, 418 F.3d at 635. And

even when the hearing is not live, the university must “provide the accused with the opportunity

to ‘respond, explain, and defend.’” Id. (quoting Gorman v. Univ. of R.I., 837 F.2d 7, 13 (1st Cir.

1988)). Endres, however, alleges he was not allowed in the room while Emerick presented her

case to the CAPP panels. That alone establishes a due process violation, but Endres’s allegations

do not end there.

Doe also says that the university must provide the student with “an explanation of the

evidence” against him, but Endres’s allegations show that NEOMED repeatedly failed on this

front. 872 F.3d at 399–400. According to Endres, Emerick presented a statistical analysis to the

first CAPP panel showing that the odds he and Student B would have six identical wrong

answers was 0.000036%. But that evidence—the Thewissen Analysis—was not present when

Endres reviewed his student file before the hearing. Moreover, NEOMED did not allow Endres

to listen in when Emerick presented the Thewissen Analysis and the rest of the case against him.

Without knowing that the Thewissen Analysis even existed, Endres could not have responded to

what seemed like incontrovertible proof that he was a cheater.

Even if the second CAPP hearing cured the defects of the first hearing, the second

hearing was not flawless. Again, NEOMED excluded Endres from the room while Emerick

presented her case. And once more, NEOMED failed to inform Endres of the key evidence

against him. After the second CAPP panel dismissed him, Endres reviewed his student file and

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 26

discovered a memo Emerick had drafted, which summarized her conversations with two of his

physicians. Endres not only alleges that Emerick discussed the memo as she presented her case

to the second CAPP committee—but also that its content was false. Both physicians provided

sworn affidavits in which they disputed Emerick’s account of their conversations, but those

affidavits were of no use once the second CAPP panel voted to dismiss Endres, marking the end

of the appeals process. Without knowledge of the memo’s existence, Endres could not “present

his side of the story.” Doe, 872 F.3d at 400 (citation omitted).

B.

Endres has alleged more than enough to establish a due process violation, but that does

not end the matter. Because Emerick has claimed qualified immunity, Endres must also show

that the constitutional rights Emerick violated were clearly established when the violation

occurred. See DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 608–09 (6th Cir. 2015). “For a right to

be clearly established, the contours of the right must be sufficiently clear that a reasonable officer

would understand that what he is doing violates that right.” McGlone v. Bell, 681 F.3d 718, 735

(6th Cir. 2012).

Emerick alleges that the law defining Endres’s due process rights was not clearly

established, and on this front, she is correct. To be sure, the Supreme Court’s decisions in Goss

and Horowitz make clear that a student facing a serious sanction for disciplinary misconduct is

entitled to a fair hearing, but neither those cases nor our own decisions have articulated a bright-

line rule to distinguish academic from disciplinary matters. Moreover, clearly established law

“must be ‘particularized’ to the facts of the case,” yet no case from the Supreme Court or this

court has held that cheating is a disciplinary matter warranting more robust procedures under the

Due Process Clause. White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting Anderson

v. Creighton, 483 U.S. 635, 640 (1987)). And because no precedent clearly established that

Endres was even entitled to a hearing, it follows that his right to be present at the hearing and to

hear the evidence against him was not clearly established, either. We therefore hold that

Emerick is entitled to qualified immunity.

No. 18-3825 Endres v. Ne. Ohio Med. Univ., et al. Page 27

We note, however, that qualified immunity “‘only immunizes defendants from monetary

damages’—not injunctive or declaratory relief.” Kanuszewski v. Mich. Dep’t of Health and

Human Servs., 927 F.3d 396, 417–18 (6th Cir. 2019) (quoting Williams v. Com. of Ky., 24 F.3d

1526, 1541 (6th Cir. 1994)); see also Ward v. Polite, 667 F.3d 727, 742 (6th Cir. 2012). Thus,

our ruling shields Emerick from monetary damages. But the qualified immunity doctrine does

not preclude Endres from continuing to pursue the injunctive and declaratory relief that he has

also requested in his § 1983 claim.

IV.

We REVERSE the district court’s dismissal of Endres’s complaint and AFFIRM the

district court’s alternative holding that Emerick is immune from monetary damages on Endres’s

§ 1983 claim.