Petition for Writ of Certiorari — Adem Albra, Petitioner v. Board of Trustees of Miami Dade College, et al.

Supreme Court briefSep 19, 2018

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Informa pauperis

No. 18

INThE

SUPREME COURT OF THE UNITED STATES

InreADEM ALBRA

Petitioner, Pro Se

vs.

The Board of Trustees for

MIAMI DADE COLLEGE

and

The US Dept of Education, et a]

Respondent(s)

On Petition for

A WRIT OF CERTIORARI to the United States Court of Appeals

for the District of Columbia

w w w V (SJII)

WRIT OF CERTIORARI

Adem Aibra, Pro Se Petitioner

860 NE 34th Street

Fort Lauderdale, FL 33334

(954) 638-8190

ademalbra@hotmail.com

QUESTION(S) PRESENTED

Did the Public College take away the Petitioner's right to earn a living in

whatever vocation he chooses, indirectly, by expelling him, twice, for being a

"direct threat", and, where the College admits Petitioner is not a direct

physical threat?

Conflicting Opinions exists from two different circuits. The DC Court of

Appeals accepted the diagnosis from a Public College that Petitioner is a

"direct [verbal] threat" so severe, he can never attend higher education, even

with reasonable accommodation.. The 11th Circuit, case #18-12197, 11th

Circuit Court of Appeals, has a ruling from its District Court that Petitioner

is not disabled, and can work. Both the ALJ for SSA and the District Court

were fully aware of the College's finding, and the DC Circuit opinion.

Therefore, this Court needs to determine if Petitioner is a direct threat and

disabled as conflicting opinions are rendered against him; in the interim, the

PetLioner is deprived of his liberty and property interest for three and a half

year now, and counting.

Petitioner has exculpatory evidence where his doctor of psychiatric stated he

is not a direct threat. He also a world renown forensic psychologist expert

who's performed over 20,000 evaluations, with extensive court testimony,

who stated that the College's motivation for removing Petitioner from College

had nothing to do with him being a direct threat, but, was the College's

retaliation for free speech, at the very minimum. He also stated the College's

psycio1ogist failed to list Petitioner's known mental disabilities. Therefore, is

the DC Court of Appeals ruling creating a precedent where Courts no longer

have to consider exculpatory evidence as the DC Court did to Petitioner?

Can federal agencies violate an individual's Constitutional Rights, as well as

fail to follow their own rules, precedents, High Court rulings, and case

handling procedures, without explanation or cause?

According to the CDC 78% of Americans living with HIV/AIDS live in

poverty, with nearly 70% living in extreme poverty with incomes of less than

$10,000. Also, 1 out of every 2 persons living with HIV/AIDS will become

homeless in their lifetime. The next closest group of Americans living in

poverty is Americans with Disabilities at 30%, of which, HIV/AIDS in

included. Therefore, does this case reflect the overwhelmingly institutional

biases that exist in America against persons with HIV/AIDS, and reflect that

persons with HIV/AIDS are not afforded the same protections as other

Americans?

Scenarios for Accepting or Denying Writ

ACTION

Deny the

Writ

MEANING

• Upholds CoA decision.

• Rewrites rules of Due Process

and Exculpatory.

• Allows government to exclude

individual permanently from

education for being a direct

threat, yet requires him to work

which requires significantly

more exertion mentally and

physically,

Require

Petitioner

to go for

Evaluation

•

Would require Petitioner to

'prove' innocence, particularly

when he has exculpatory

evidence already.

• The College refused to call law

enforcement at any time

pertaining to incident although

it was Petitioner requesting it.

• The College also refused to

"Baker Act" Petitioner

Remember this is a School of

Nursing and a nurse is lawfully

able_to_do_so.

• Determine the College's action's

are lawful, and award SSA

benefits to Petitioner.

IMPACT

In no way is Petitioner saying this

would ever happen; This scenario is

for illustrative purposes only:

If Petitioner ever became 'postal'

because the Courts ruled he is to the

level of direct threat he could never

attend College, but then forced

Petitioner to work which requires

more exertion and hours of that of

being in College, the legitimacy of

American Jurisprudence will be put

on trial by the people.

Would rewrite Due Process for all

proceedings including criminal.

Public Outcry overwhelmingly

opposed as this form of tyranny has

no basis in fact or law.

Grant the

Writ

Scenario 1

Grant the

Writ

Scenario 2

Would allow any American to bypass

the SSA process and merely have a

school 'dub' them a direct threat and

be immediately eligible for benefits.

Financial impact would devastate

this country and Congress would

respond to this Court's opinion

through steps they deemed

appropriate.

• Determine the College's action's The rule of law will continue to be

are unlawful, and remand with followed from Brown v. Education,

Goss v. Lopez, Tinker v Des Moines,

specific instructions.

• Deciding on SSA benefits would Matthews v Elderidge, et cetera.

not _be_necessary.

SUBSET OF QUESTIONS

MIAMI DADE COLLEGE

(Petitioner Respectfully Reminds this Court he is pro Se, and suffers from numerous

disabilities and asks for leniency in interpretation of his Petition)

Did the State College violate Petitioner's rights of the U.S. Constitution,

specifically the 1st and 14th Amendment to the U.S. Constitution, by taking

away his liberty, property interest, and retaliated by his exercising free

speech, all without the required due process?

Did both the State (State College), and the U.S. Department of Education,

deliberately ignore exculpatory evidence to deprive Petitioner his right to

pursue a vocation of his choosing, and the education needed to obtain it?

Did both the State (State College), and the U.S. Department of Education

provide the Petitioner the, appropriate due process before permanently

removing him and denying him the education needed to pursue the vocation

of his choosing?

Is the State justified in their exclusion of Petitioner from higher education?

If so, what is the public interest?

Is Petitioner's right to pursue a vocation of his choosing, a liberty and

property right protected by the Immunities and Privileges Clause of the

United States Constitution?

Lk!4

Did the State College fail to provide Petitioner equal protection? And, then

retaliate against him for submitting a complaint?

Can the State arbitrarily disregard its Student Handbook's policies and

procedures to the detriment of Petitioner?

Can the State fundamentally change one of it's College's programs after

Petitioner was already enrolled, and such changes were never announced

(breach contract)?

Did the State College violate both the ADA and Section 504 as it pertains to

petitioner?

Are the actions by the State's College willful, malicious, and would it shock

the conscience of any reasonable person?

Subset QUESTIONS EDUCATION

Did the US Dept of Education fail to follow seven (7) of its own case

precedents as it pertains to the State College, without explanation, or cause,

and acted in an arbitrary and capricious manner?

Did the Dept of Education violate Petitioner's Due Process protections, in its

Voluntary Agreement with the State College, which contradicted Supreme

Court rulings (i.e. suspensions longer than 10 days, amongst other items; and

completely disregarding the High Court's ruling in Matthews v Elderidge

that sets forth guidelines for Due Process

which included instructions for

the federal Agencies, to the detriment of Petitioner?

Pertaining to enforcement of the Voluntary Agreement between the State

College and the Dept of Education, did the Dept of Education's Case

Handling Manual set forth specific actions to take for enforcement, but were

ignored by the Dept of Education?

Did the Department of Education act, contrary to law, in negotiating the

agreement with the State College by disregarding, without explanation or

notice, without first conferring with Complainant (as required) prior to

signing contract, and for providing time frames to the State College that far

exceeding Court rulings in time frames allowed?

Are the actions by US Department of Education deliberate and malicious

towards Complainant?

LIST OF PARTIES

[1 All parties appear in the caption of the case on the cover page.

[X] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

Co-Defendants (not included on cover)

US Department of Education, OCR

Catherine Lhamon, individual capacity as enforcement director of Dept of

Education

3. John King, Secretary of Department of Education

Interested Parties that this Writ may Affect in Time

Judge Beryl A. Howell, Chief Judge District

DC Court of Appeals

VII

TABLE OF CONTENTS

QUESTIONS PRESENTED

SCENARIOS

111

Accept/Deny Writ

SUBSET OF QUESTIONS

LIST OF PARTIES

vii

CASES / OCR CASE PRECEDENTS

OPINIONS BELOW

JURSIDICTION

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

CONFLICT WITHIN CIRCUIT

DC CoA Case Conflict w/SCOTUS

DC CoA Case Conflict other Circuits

Memorandum of Law & Argument

REASON FOR GRANTING WRIT

CONCLUSION

APPENDIX

Exhibit A

DC COURT OF APPEALS

Reconsideration

Exhibit B

DC COURT OF APPEALS Opinion

VIII

Cases

Adair v. United States, 208 U.S. 161, 172, 28 S.Ct. 277 (1908) .............................................35

Adams v. Richardson, 356 F. Supp. 92 (D.D.C. 1973)....................................................................17

A/lgeyer v. Louisiana, 165 U.S. 578, 589-90, 17 S.Ct. 427 (1897).............................................34

Anti-Fascist Committee v. McGrath, 341 U.S. 123........................................................................22

Armstrongv. Manzo, 380 U.S. 545,.......................................................................................................22

Baldwin v. Hale, 1 Wall. 223,233(1864)............................................................................................23

Becker v. illinois Real Estate Admin. and Discilinary Bd.,

884 F.2d 955, 957 (7th Cir. 1989)....................................................................................................37

Bigby v. City of Chicago, 766 F.2d 1053, 1057 (7th Cir. 1985)....................................37

Boardof Regents vRoth (1972)...............................................................................................................17

Boddie v. Connecticut, 401 U.S. 371, 378-379(1971). ................................................20.

Boyd v. United, 116 U.S. 616 at 635 (1885)........................................................................................33

Brownv. Board of Education....................................................................................................................18

Butchers' Union Slaughterhouse Co. v. Crescent City

Live-Stock Landing Co., 111 U.S. 746, at page 762,4 Sup. Ct. 657........................34

Cafeteria Workers v. McElroy, 367 U.S. 886 895(1961)..............................................................21

Chaney, 470 U.S. at 832-33.......................................................................................................................16

Coppage v. Kansas, 236 U.S. 1, 14, 35 S.Ct. 240 (1915)..............................................36

Duncan v. Missouri, 152 U.S. 377, 382 (1894)...................................................................................31

Elrod v. Burns, 427 U.S. 347; 6 S. Ct. 2673; 49 L. Ed. 2d (1976)..................................32

Epperson v. Arkansas, 393 U.S. 97,104 (1968) ........................................................22

Fuentes v. Shevin, 407 U.S. 67, 86(1972)...........................................................................................20

Giozza v. Tiernan, 148 U.S. 657, 662 (1893).......................................................................................32

Gitlow v. New York, 268 U.S. 652, 666.................................................................................................33

Goetz v. Windsor Central School District, 698 F.2d 606, 609 (2nd Cir. 1983)................37

Gomilion v. Lightfoot, 364 U.S. 155 (1966)........................................................................................31

GossvLopez (1973)......................................................................................................................................18

Grannis v. Ordean, 234 U.S. 385, 394(1914),...........................................................22

Greene v. McElroy, 360 U.S. 474, 492 79S. Ct. 1400 (1959) ..............................................31Grosjean v. American Press Co., Inc., 297 U.S. 233, 244, 56 S.Ct. 444 (1936)................33

Illinois Psychological Ass 'n v. Falk, 818 F.2d 1337, 1344 (7th Cir. 1987).....................37

Jenkins v. McKeithen, 395 U.S. 411,421(1959)...............................................................................33

Matyv. Grasseii Chemical Co .................................................................................................................33

McBurneyv. Young.......................................................................................................................................29

Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042(1923) .............36

Miranda v. Arizona, 384 U.S. 426,491; 86 S. Ct. 1603...................................................................32

Morehead v NY exrel Tipaldo, 298 U.S. 587, 601, 56 S.Ct. 918 (1936).......................31

Morrisseyv. Brewer, 408 U.S. at 481.....................................................................................................21

Mullane v. Central Hanover Trust Co., 339 U.S. 306[p579] (1950)...............................37

Near v. Minnesota, 283 U.S. 697, 707...................................................................................................33

New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S. Ct. 371 (1932)................................30

OSO, 132 F.3d at 812; Crowley, 37 F.3d at 676-77.....................................................16

Owen v. City of Independence ................................................................................................................... 31

Picking v. Pennsylvania R. Co., 151 Fed 2nd 240.............................................................................33

Pucketv. Cox, 456 2nd 233........................................................................................................................33

Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2nd Cir. 1980)..........36

Sch ware v. Board of Bar Examiners, 353 U.S. 232, 238-39,

77 S.Ct. 752, 755-56, 1 L.Ed.2d 796........................................................................................37

Smithv. All wright, 321 U.S. 649.644....................................................................................................31

Sniadach v. Family Finance Corp.,395 U.S. 337, 342(1969).......................................20

Stidham v. Tex. Comm 'ii on Private Sec., 418 F.3d 486, 491 (5th Cir. 2005)..................37

Tate v. Board of Education, 453 F.2d 975, 979 (CAS 1972).........................................25

Thomas v. Board of Examiners, 866 F.2d 225, 227 (7th Cir. 1988) (per curiam)...........38

United States v. Chadwick, 433 U.S. I at 16 (1976)........................................................................33

Vail v. Board of Education, 354 F.Supp. 592, 603 (Nfl 1973)......................................25

Wisconsin v. Cons tan tin ea u, 400 US. 433, 437(1971);. ................................................................ 19

Statutes

28 CFR 35.139(b)............................................................................................................................................9

OCR CASE PRECEDENTS & Guidance Publication

BlufftonUniversity case.............................................................................................................................13

GeorgetownUniversity ...............................................................................................................................10

Guidance publication by the Dept of Education, Secret Service, and FBI ................................6

GuifordUniversity

............................... . ........................................................................................................14

MariettaCoIlee .............................................................................................................................................14

NationalUniversity ................................................................................................................................. .... 14

SanDiego tate ruling .............................................................................................................................. .15

StJoseph College's ........................................................................................................................................15

WesternWashington University .............................................................................................................11

OPINIONS BELOW

[X] For cases from federal courts:

The date on which the United States Court of

Appeals decided my case was July 9, 2018

[]No petition for rehearing was timely filed in my

case.

[X] A timely petition for rehearing was denied by

the United States Court of Appeals on the following

date: Sot. 14. 2018

and a copy of the order

denying rehearing appears at Appendix

[]An extension of time to file the petition for a writ

of certiorari was granted to and including (date)

on _(date) in Application No. A__________

JURISDICTION

The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Natural Law

Liberty—.is

is best defined as "..autonomy: immunity

from arbitrary exercise of authority: political

independence, freedom of choice; to think or feel or

do just as one pleases; personal freedom from

servitude or confinement or oppression"

United States Constitution, Amendment I:

Congress shall make no law.. .abridging the freedom

speech...;.. .or of the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

United States Constitution, Amendment IT' Sec 2:

"The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the several

States."

United States Constitution, Amendment V

The Fifth Amendment says to the federal

government that no one shall be "deprived of life,

liberty or property without due process of law.'

United States Constitution, Amendment VI:

"..the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and

district wherein the crime shall have been

committed,

ascertained by law, and to be

informed of the nature and cause of the accusation;"

...

United States Constitution, Amendment XIV,Sec 1:

"No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws."

Title II of the American with Disabilities Act

Section 504 of The Rehabilitation Act of 1973

Civil Rights Act-42 U.S.C. § 1983

28 U.S.C. Section 1331:

The district courts shall have original jurisdiction of

all civil actions arising under the Constitution,

laws, or treaties of the United States.

28 U.S.C. Section 1343(a)(3) & (4):

(a) The district courts shall have original

jurisdiction of any civil action authorized by law to

be commenced by any person:

To redress the deprivation, under color of any

State law, statute, ordinance, regulation, customor

usage, of any right, privilege or immunity secured

by the Constitution of the United States or by any

Act of Congress providing for equal rights of

citizens or of all persons within the jurisdiction of

the United States;

To recover damages or to secure equitable or

other relief under any Act of Congress providing for

the protection of civil rights, including the right to

vote.

Civil Rights Act-42 U.S.C. § 1983:

Every person who under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution...

The Rehabilitation Act of 1973 No University that

is receiving federal funds shall discriminate against

a student with a disability. Title IX of the

Education Amendments of 1972 No University that

is receiving federal funds shall discriminate against

a student based on sex. United States Supreme

Court currently has original and exclusive

jurisdiction over cases between state governments.

Suits filed against state officials under the

?!stripping doctrine" [edit] The "stripping doctrine"

permits a state official who used his or her position

to act illegally to be sued in his or her individual

capacity Ex parte Young allows federal courts to

enjoin the enforcement of unconstitutional state (or

federal) statutes on the theory that "immunity does

not extend to a person who acts for the state, but

[who] acts unconstitutionally, because the state is

powerless to authorize the person to act in violation

of the Constitution.

STATEMENT OF THE CASE

This case is about a 47 year old student, who

has had his right to earn a living in a profession of

his choosing indirectly taken away from him, by a

College official by mere assertion he is a "direct

threat" alone, and the Courts had been unwilling to

review exculpatory evidence.

This case is about a 47 year old student, with

numerous disabilities, who had never been arrested

in his life, who had been convicted, and

permanently excluded by a public College, for a

crime he did not commit, without due process, or

consideration of evidence that would exonerate him.

The College admits that Petitioner is not a

direct physical threat, but believes he's a high

degree verbal threat.

The College's determination is based on their

"go to" psychologist's report which contains

numerous errors and omissions. Petitioner's doctor

of psychiatry and a forensic psychology expert both

state that Petitioner is not, nor had never been a

direct threat.

Petitioner was removed by College officials

with no notice. When he eventually learned of the

claim by the College, it was Petitioner who

implored the College to call law enforcement to

determine if he was a 'direct threat'; as set forth in

the guidance publication by the Dept of Education,

Secret Service, and FBI, created for Colleges and

Universities to utilize after the VA Tech Shooting.

In Petitioner's situation, the College had no

intention of calling law enforcement despite

numerous pleas from Petitioner for them to do so

knowing their allegations to be fictitious, and

designed specifically to exclude Petitioner.

This case is also about arbitrary and

capriciousness from the U.S. Department of

Education, Office of Civil Rights to the detriment of

Petitioner, where its employees demonstrated

disregard for a person's Constitutional Rights.

This case is about disciplinary, permanent

expulsion from a Public College where the US

Department of Education, Office of Civil Rights had

intervened, signed an agreement with Miami Dade

College, and failed to enforce this agreement, and

abide by its own case precedents, rules, and case

processing manual, without explanation.

This case involves lack of due process from

Miami Dade College, and the OCR, before depriving

Aibra of his rights afforded to him in the

Constitution; and the Dept of Education's failure to

follow its own case precedents and own rules.

In the Appendix, the Supplemental

Complaint filed with the District Court provides a

very thorough history of the actions by the College,

which including removing Petitioner, 2 days after

an alleged direct threat incident, without any

notice, hearing, or opportunity to be heard before

removal. In fact, it was Petitioner who submitted a

bullying complaint two days prior which went

completely ignored by the College.

This Supplemental Complaint sets forth

eight (8) specific charges against the State College

for which relief is sought and entitled to if the laws

are equally enforced.

Petitioner was removed by the College on

June 12, 2015. He filed a complaint with the US

Dept of Education, Office of Civil Rights for

disability discrimination, failure to protect, and

retaliation. An agreement between the College and

OCR took place in January 2016, without any input

from Petitioner, and, with OCR allowing the

College to exclude him during this time frame, and

then permanently.

28 CFR 35.139(b) states "In determining

whether an individual poses a direct threat to the

health or safety of others, a public entity must

make an individualized -assessment, based on

reasonable judgment that relies on current medical

knowledge or on the best available objective

evidence, to ascertain: the nature, duration, and

severity of the risk; the probability that the

potential injury will actually occur; and whether

reasonable modifications of policies, practices, or

procedures or the provision of auxiliary aids• or

services will mitigate the risk.

Upon receiving a copy of the Agreement

between OCR and the State College, Petitioner

immediately made an appointment with his

psychiatrist and then submitted this letter from his

licensed doctor of psychiatry to the College, and

OCR, in January 2016, stating that he is not a

direct threat.

Both the College and OCR ignored this letter

and required him to attend the College's designated

psychologist for evaluation in late March 2016,

which violates OCR case precedent re: Georgetown

University, and 28 CFR 35.139(b).

In the OCR ruling against Georgetown

University, the school may require a second

assessment

only

under

"extraordinary

circumstances" and must be able to articulate a

rationale for this requirement. It violates Section

504 when the school fails to give notice of what

constitutes sufficient documentation to return

following medical leave, or fails to articulate its

rationale for finding documentation insufficient.

Since neither OCR nor the College articulated a

reason for this second evaluation, one can only

speculate that if they attempted to claim that a

physician is unqualified to do a psychological

evaluation, then this too would violate another

ruling made by OCR in Western Washington

University.

In OCR's ruling against Western Washington

University, The University suspended the student

from RA position after a psychiatric

hospitalization, rejected letter from the treating

physician, and demanded "extensive evaluation" by

"a qualified mental health professional" because

the University considered the general practice

physician unqualified to do the psychological

evaluation. This violated Section 504 because the

University failed to articulate grounds for

demanding additional evaluation: no recurring

behavior concerns, no consultation with another

professional to determine validity of doctor's

opinion, and no attempt to contact doctor to

determine basis of opinion. The University must

have good cause to demand a second psychological

evaluation.

Petitioner implores this Court to read The State

College's designated psychologist's report as it is

clearly biased according to anyone reading it, and

contains numerous errors. Petitioner hired an

expert, a forensic psychologist, unknown to him,

who impugned the report of the psychologist

yet

both the College and OCR rejected this expert,

without explanation, not because of the law, but

because they choose to do so.

Moreover, the College's (and OCR's allowance)

direct threat assessment violates another OCR case

precedent ruling in the Bluffton University case.

OCR ruled the University failed to adequately

assess direct threat as it did not consult with

medical "did not consult with medical personnel,

examine objective evidence, ascertain the nature,

duration and severity of the risk

...

or consider

mitigating the risk of injury." The University also

violated the minimal due process requirement

because it provided the student with no notice or

opportunity to be heard, refused to reconsider

decision

after

receiving

letter

from

treating

psychiatrist.

Petitioner's exculpatory / contradictory evidence

includes the forensic psychologist who has

performed over 20000 evaluations and testified in

courts stated that Aibra is not and was not a direct

threat, and stated in his report that the 'actions of

the College' were based on, at a minimum,

retaliation for free speech.

The College admits visa-a-vie their designated

psychologist, that Aibra is not a physical threat to

safety or well-being of others. Yet both the College

and OCR allow this permanent expulsion violating

various OCR case precedents

Marietta College,

Guiford University & National University.

In Marietta College, OCR clarifies high

probability of speculative harm and not speculative

risk. This ruling lays the groundwork that in order

for someone to be a direct threat

a physical

harm/threat must exist in the highest degree. Nor

were the OCR standards set forth in both Guiford

University and National University applied.

When Miami Dade College removed Albra as

being a direct threat, both the 1st and 2' time he

was expelled, both incidents violated two more

OCR case precedent's found in both its St Joseph

College's ruling, and San Diego State ruling.

St Joseph's College, "OCR ruled against

Joseph College, the College was found in violation

of Section 504 for a history of applying separate,

unpublished emergency suspension procedure to

students with perceived mental illness that offered

no notice or opportunity to present evidence.

In the San Diego State College ruling OCR

stated Use of disciplinary process to exclude

student violated Sec. 504 because College failed to

make objective assessment or even identify specific

behavior indicative of direct threat; decisions were

made on basis of uncorroborated rumors.

The OCR failed to follow its own policies and

procedures. The specificity of the policies and

procedures violated were set forth in both the

District Court and Court of Appeals filings.

CONFLICT WITHIN CIRCUIT APA CLAIMS

1) Recent case out of DC Circuit =

NAACP v.

Trump, (2018). A key factor on whether agency

deference is appropriate, is best opined,

recently, by a different Judge in the District

Court of Columbia, case #17-1907, NAACP v

Trump et a], decided April 24, 2018.

"Fortunately, neither Supreme Court nor

D.C. Circuit precedent compels such a result.

Rather, the cases are clear the courts have the

authority to review an agency's interpretation of

the law if it is relied on to justify an enforcement

policy, even when the interpretation concerns the

lawful scope of the agency's enforcement discretion.

See Chaney, 470 U.S. at 832-33; OSG, 132 F.3d at

812; Crowley, 37 F.3d at 676-77. Under this rule,

an official cannot claim that the law ties her hands

while at the same time denying the courts' power to

unbind her.

She may escape political

accountability or judicial review, but not both."

In Adams v. Richardson, 356 F. Supp. 92

(D.D.C. 1973), the Secretary of HEW asserted

absolute agency discretion

disagreed holding

the high court

in language characteristic of

"statutory guidelines" exception that "Title VI not

only requires the agency to enforce the Act, but also

sets forth specific enforcement procedures."

The Court went further in its opinion stating

that "consistent failure" [by the agency] was a

'dereliction of duty reviewable by the Courts'.

CONFLICT WITH SCOTUS DECISIONS

Board of Regents v Roth (1972) provides for

procedural due process under the 14th Amendment

since liberty and interest are at stake. These

protections were not afforded by the College to the

Appellant. This court's ruling usurps this decision.

Brown v. Board of Education and Goss v

Lopez (1973) are the "go to cases" regarding school

discipline and clarifies that public school students

have property and liberty interests. Here the Court

stated, "the relevant case authority would: (1)

permit "[i]mmediate removal of a student whose

conduct disrupts the academic atmosphere of the

school, endangers fellow students, teachers or

school officials, or damages property'; (2) require

notice of suspension proceedings to be sent, to the

student's parents within 24 hours of the decision to

conduct them; and (3) require a hearing to be held,

with the student present, within 72 hours of his

removal.

In the College's action towards Petitioner,

Aibra was removed from College 2 days after

"alleged threat", provided Albra no notice as to why

he was being removed until a later time where the

charges changed several times, and no hearing was

conducted within 72 hours.

As further explained in the Goss v. Lopez

ruling, it is important to note the College has

broken every element in the quoted section below,

without denial:

"The Due Process Clause also forbids

arbitrary deprivations of liberty. "Where a

person s good name, reputation, honor, or

integrity is at stake because of what the

government is doing to him," the minimal

requirements of the Clause must be

satisfied. Wisconsin v. Constantinea u, .IQQ

Us. 433, 437 (1971); Board of Regents v.

Roth, supra, at 573. School authorities here

suspended appellees from school for periods

of up to 10 days based on charges. of

misconduct. If sustained and recorded, those

charges could seriously damage the students'

standing with their fellow pupils and their

teachers as well as interfere with later

opportunities for higher education and

employment. It is apparent that the claimed

right of the State to determine unilaterally

and without process whether that

misconduct has occurred immediately

collides with the requirements of the

Constitution.

Appellants proceed to argue that, even if

there is a right to a public education

protected by the Due Process Clause

generally, the Clause comes into play only

when the State subjects a student to a

"severe detriment or grievous loss." The loss

of 10 days, it is said, is neither severe nor

grievous and the Due Process Clause is

therefore of no relevance. Appellants'

argument is again refuted by our prior

decisions; for in determining whether due

process requirements apply in the first place,

we must look not to the "weight" but to

the nature of the interest at stake.

Board of Regents v. Roth, supra, at 570-571.

Appellees were excluded from school only

temporarily, it is true, but the length and

consequent severity of a deprivation, while

another factor to weigh in determining the

appropriate form of hearing, "is not decisive

of the basic right" to a hearing of some kind.

Fuentes v. Shevin, 407 U.S. 6Z 86 (1972).

The Court's view has been that, as long as a

property deprivation is not de minimis, its

gravity is irrelevant to the question whether

account must be taken of the Due Process

Clause. Sniadach V. Family Finance

Corp.,395 U.S. 33Z 342 (1969) (Harlan, J.,

concurring), Boddie v. Connecticut, 401 U.S.

ZL, 378-379 (1971); Board of Regents v.

Roth, supra, at 570 n. 8. A 10-day suspension

from school is not de minimis, in our view,

and may not be imposed in complete

disregard of the Due Process Clause.

A short suspension is, of course, a far milder

deprivation than expulsion. But, "education

is perhaps the most important function of

state and local governments, "Brown v.

Board of Education, 347 U.S. 483, 493(1954),

and the total exclusion from the educational

process for more than a trivial period, and

certainly if the suspension is for 10 days, is a

serious event in the life of the suspended

child Neither the property interest in

educational benefits temporarily denied nor

the liberty interest in reputation, which is

also implicated, is so insubstantial that

suspensions may constitutionally be imposed

by any procedure the school chooses, no

matter how arbitrary.

III

"Once it is determined that due process

applies, the question remains what process is

due. "Morrissey v. Brewer, 408 U.S. at 481.

We turn to that question, fully realizing, as

our cases regularly do, that the

interpretation and application of the Due

Process Clause are intensely practical

matters, and that "[t]he very nature of due

process negates any concept of inflexible

procedures universally applicable to every

imaginable situation. "Cafeteria Workers v.

McElroy, 367 U.S. 886, 895 (1961). We are

also mindful of our own admonition:

Judicial interposition in the operation of

the public school system of the Nation

raises problems requiring care and

restraint.

By and large, public

education in our Nation is committed to

the control of state and local authorities.

Epperson v. Arkansas, 393 US. 9Z 104

(1968).

There are certain benchmarks to guide us,

however. Mullane v. Central Hanover Trust

Co., 339 U.S. 3061p5791 (1950), a case often

invoked by later opinions, said that [m]any

controversies have raged about the cryptic

and abstract words of the Due Process

Clause but there can be no doubt that, at a

minimum they require that deprivation of

life, liberty or property by adjudication be

preceded by notice and opportunity for

hearing appropriate to the nature of the case.

Id. at 313. "The fundamental requisite of due

process of law is the opportunity to be

heard," Granriis v. Ordean, 234 U.S. 385, 394

(1914), a right that "has little reality or

worth unless one is informed that the matter

is pending and can choose for himself

whether to

contest. "Mullane v. Central

Hanover Trust Co., supra, at 314. See also

Armstrong v. Manzo, 380 U.S. 545, 550

(1965); Anti-Fascist

Committee

McGrath, 341 U.S. 123, 168-169 (1951)

(Frankfurter, J., concurring). At the very

minimum, therefore, students facing

suspension and the consequent interference

with a protected property interest must be

given some kind of notice and

afforded some kind of hearing. "Parties

whose rights are to be affected are entitled to

be heard; and in order that they may enjoy

that right they must first be notified.

"Baldwin v. Hale, 1 Wall. 223,233(1864).

It also appears from our cases that the

timing and content of the notice and the

nature of the hearing will depend on

appropriate accommodation of the competing

interests involved Cafeteria Workers v.

McElroy, supra, at 895; Morrissey v. Brewer,

supra, at 481. The student's interest is to

avoid unfair or mistaken exclusion from the

educational process, with all of its

unfortunate consequences. The Due Process

Clause will not shield him from suspensions

properly imposed, but it disserves both his

interest and the interest of the State if his

suspension is, in fact, unwarranted The

concern would be mostly academic if the

disciplinary process were a totally accurate,

unerring process, never mistaken and never

unfair. Unfortunately, that is not the case,

and no one suggests that it is.

Disciplinarians, although proceeding in

utmost good faith, frequently act on the

reports and advice of others; and the

controlling facts and the nature of the

conduct under challenge are often disputed.

The risk of error is not at all trivial, and it

should be guarded against if that may be

done without prohibitive cost or interference

with the educational process.

The difficulty is that our schools are vast and

complex. Some modicum of discipline and

order is essential if the educational function

is to be performed Events calling for

discipline are frequent occurrences, and

sometimes require immediate, effective

action. Suspension is considered not only to

be a necessary tool to maintain order, but a

valuable educational device. The prospect of

imposing elaborate hearing requirements in

every suspension case is viewed with great

concern, and many school authorities may

well prefer the untrammeled power to act

unilaterally, unhampered by rules about

notice and hearing. But it would be a strange

disciplinary system in an educational

institution if no communication was sought

by the disciplinarian with the student in an

effort to inform him of his dereliction and to

let him tell his side of the story in order to

make sure that an injustice is not done.

"[F]airness can rarely be obtained by secret,

one-sided determination of facts decisive of

rights. ."

Secrecy is not congenial to truth-seeking,

and self-righteousness gives too slender an

assurance of rightness. No better

instrument has been devised for arriving

at truth than to give a person in jeopardy

of serious loss notice of the case against

him and opportunity to meet it.

Anti-Fascist Committee V. McGrath,

supra, at 170, 171-172 (Frankfurter, J.,

concurring).

We do not believe that school authorities

must be totally free from notice and hearing

requirements if their schools are to operate

with acceptable efficiency. Students facing

temporary suspension have interests

qualifying for protection of the Due Process

Clause, and due process requires, in

connection with a suspension of 10 days or

less, that the student be given oral or written

notice of the charges against him and, if he

denies them, an explanation of the evidence

the authorities have and an opportunity to

present his side of the story. The Clause

requires at least these rudimentary

precautions against unfair or mistaken

findings of misconduct and arbitrary

exclusion from school.

There need be no delay between the time

"notice" is given and the time of the hearing.

In the great majority of cases the

disciplinarian may informally discuss the

alleged misconduct with the student minutes

after it has occurred. We hold only that, in

being given an opportunity to explain his

version of the facts at this discussion, the

student first be told what he is accused of

doing and what the basis of the accusation is.

Lower courts which have addressed the

question of the nature of the procedures

required in short suspension cases have

reached the same conclusion. Tate v. Board

of Education, 453 F.2d 975, 979 (CAS

1972); Vail v. Board of Education, 354

F.Supp. 592, 603 (NH 1973). Since the

hearing may occur almost immediately

following the misconduct, it follows that as a

general rule notice and hearing should

precede removal of the student from school.

We agree with the District Court, however,

that there are recurring situations in which

prior notice and hearing cannot be insisted

upon. Students whose presence poses a

continuing danger to persons or property or

an ongoing threat of disrupting the academic

process may be immediately removed from

school. In such cases, the necessary notice

and rudimentary hearing should follow as

soon as practicable, as the District Court

indicated.

In holding as we do, we do not believe that

we have imposed procedures on school

disciplinarians which are inappropriate in a

classroom setting. Instead we have imposed

requirements which are, if anything, less

than a fair-minded school principal would

impose upon himself in order to avoid unfair

suspensions. Indeed, according to the

testimony of the principal of MarionFranklin I-ugh School, that school had an

informal procedure, remarkably similar to

that which we now require, applicable to

suspensions generally but which was not

followed in this case. Similarly, according to

the most recent memorandum applicable to

the entire CPSS, seen. 1, supra, school

principals in the CPSS are now required by

local rule to provide at least as much as the

constitutional minimum which we have

described.

We stop short of construing the Due Process

Clause to require, countrywide, that hearings

in connection with short suspensions must

afford the student the opportunity to secure

counsel, to confront and cross-examine

witnesses supporting the charge, or to call

his own witnesses to verify- his version of the

incident. Brief disciplinary suspensions are

almost countless. To impose in each such

case even truncated trial-type procedures

might well overwhelm administrative

facilities in many places and, by diverting

resources, cost more than it would save in

educational effectiveness. Moreover, further

formalizing the suspension process and

escalating its formality and adversary nature

may not only make it too costly as a regular

disciplinary tool, but also destroy its

effectiveness as part of the teaching process.

On the other hand, requiring effective notice

and informal hearing permitting the student

to give his version of the events will provide

a meaningful hedge against erroneous action.

At least the disciplinarian will be alerted to

the existence of disputes about facts and

arguments about cause and effect. He may

then determine himself to summon the

accuser, permit cross-examination, and allow

the student to present his own witnesses. In

more difficult cases, he may permit counsel.

In any event, his discretion will be more

informed and we think the risk of error

substantially reduced.

Requiring that there be at least an informal

give-and-take between student and

disciplinarian, preferably prior to the

suspension, will add little to the factfinding

function where the disciplinarian himself has

witnessed the conduct forming the basis for

the charge. But things are not always as they

seem to be, and the student will at least have

the opportunity to characterize his conduct

and put it in what he deems the proper

context.

We should also make it clear that we have

addressed ow-selves solely to the short

suspension, not exceeding 10 days. Longer

suspensions or expulsions for the remainder

of the school term, or permanently, may

require more formal procedures. Nor do we

put aside the possibility that, in unusual

situations, although involving only a short

suspension, something more than the

rudimentary procedures will be required."

The DC Court of Appeals ruling in this case also

strikes down The Supreme Court's ruling in

Matthews v Elderidge where the protections of Due

Process required are set forth in a three prong test;

of which, neither the federal agency nor the College

provided to the Plaintiff, and the Appellant Court

ignored, as follows:

The importance of the interest at stake

The risk of an erroneous deprivation of

the interests because of the procedures

used, and the probable value of

additional procedural safeguards, and

iii) The government's interest.

Focusing on ii) above, the second part of the test

assesses the risk of the possibility that a person

will be mistakenly deprived of the interest because

of the need for additional or different procedural

safeguards. If the risk of error is minimal, then the

need for additional procedures declines. If the risk

is high then additional procedures would be

merited. Government agencies also may reduce the

risk of erroneous deprivation by ensuring that

regulations are not Arbitrary or discriminatory, and

by defining reasonable classifications.

In 2012 the 4th Circuit Confirmed the Right

to Earn a Living is protected by the Constitution in

McBurney v. Young, yet the DC Circuit is indirectly

denying this right based on a school official's

unchecked assertion.

Moreover, a proper analysis of case law,

precedents, and stare decisis as it pertains to

disability discrimination, is clear to any reasonable

person that this is a blatant case of disability

discrimination amongst others. The Department of

Justice is well aware of these facts, as they had

written the guidelines of the ADA and Section 504

of the Rehabilitation Act.

The College's perversion of the phrase "direct

threat" equates to words spoken that they do not

like. The College admits that Aibra presents no

physical harm to self or others

just his words.

MEMORANDUM OF LAW

New State Ice Co. v. Liebmann, 285 U.S. 262,

278, 52 S. Ct. 371 (1932): '[N]othing is more clearly

settled than that it is beyond the power of a state,

'under the guise of protecting the public, arbitrarily

[to] interfere with private business or prohibit

lawful occupations or impose unreasonable and

unnecessary restrictions upon them."

Morehead v. NY ex rel Tipaldo, 298 U.S.

587, 601, .56 S.Ct. 918 (1936):"Nothing is better

settled in our constitutional law than that liberty

does not mean merely freedom from physical

restraint, but includes the right to work for a living

by using the powers of brain and muscle in the

ordinary activities of mankind."

Greene v. McElroy, 360 U.S. 474, 492, 79 S.

Ct. 1400 (1959): "[R]ight to hold specific private

employment and to follow a chosen profession free

from unreasonable governmental interference

comes within the 'liberty' and 'property' concepts

of the Fifth Amendment."

"Constitutional 'rights' would be of little

value if they could be indirectly denied." Gomillion

v. Lightfoot, 364 U.S. 155 (1966), cited also in

Smith v. Allwright, 321 U.S. 649.644

"The innocent individual who is harmed by

an abuse of governmental authority is assured that

he will be compensated for his injury." Owen v. City

Of Independence.

Due process of law and the equal protection

of the laws are secured if the laws operate on all

alike, and do . not subject the individual, to an

arbitrary exercise of the powers of government."

Duncan v. Missouri, 152 U.S. 377, 382 (1894).

half their efficacy, and leads to gradual

depreciation of the right, as if it consisted more in

sound than in substance. It is the duty of the

Courts to be watchful for the Constitutional Rights

of the Citizens, and against any stealthy

encroachments thereon. Their motto should be

Obsta Principiis." Boyd v. United, 116 U.S. 616 at

635 (1885).

Pro se pleadings are to be considered without

regard to technicality; pro se litigants' pleadings

are not to be held to the same high standards of

perfection as lawyers. Jenkins v. McKeithen, 395

U.S. 411, 421 (1959); Picking v. Pennsylvania R.

Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233

Ma ty v. Grasseii Chemical Co.,

"It is deeply distressing that the Department

of Justice, whose mission is to -protect the

constitutional liberties of the people of the United

States, should even appear to be seeking to subvert

them by extreme and dubious legal argument."

United States v. Chadwick, 433 U.S. I at 16 (1976).

Grosjean v. American Press Co., Inc., 297

U.S. 233, 244, 56 S.Ct. 444 (1936):"That freedom of

speech and of the press are rights of the same

fundamental character, safeguarded by the due

Fourteenth

process of law clause of the

Amendment against abridgment by state

legislation, has likewise been settled by a series of

decisions of this Court beginning with Gitlow v.

New York, 268 U.S. 652, 666, and ending with Near

v. Minnesota, 283 U.S. 697, 707.

A/lgeyer v. Louisiana, 165 U.S. 578, 589-90,

17 S.Ct. 427 (1897): "The liberty' mentioned in

that amendment means, not only the right of the

citizen to be free from the mere physical restraint of

his person, as by incarceration, but the term is

deemed to embrace the right of the citizen to be

free in the enjoyment of all his faculties; to be free

to use them in all lawful ways; to live and work

where he will; to earn his livelihood by any lawful

calling; to pursue any livelihood or avocation; and

for that purpose to enter into all contracts which

may be proper, necessary, and essential to his

carrying out to a successful

conclusion the

purposes above mentioned.

"It was said by Mr. Justice Bradley, in

Butchers' Union Slaughterhouse Co. v. Crescent

City Live-Stock Landing Co., 111 U.S. 746, at page

762, 4 Sup. Ct. 657, in the course of his concurring

opinion in that case, that 'the right to follow any of

the common occupations of life is an inalienable

right. It was formulated as such under the phrase

'pursuit of happiness' in the

Declaration of

Independence, which commenced with the

fundamental proposition that 'all men are created

equal; that they are endowed by their Creator with

certain inalienable rights; that among these are

life, liberty, and the pursuit of happiness.'

This right is a large ingredient in the civil

liberty of the citizen.' Again, on page 764, 111 U.

S., and on page 658, 4 Sup. Ct., the learned justice

said: 'I hold that the liberty of pursuit-the right to

- -

follow any of the ordinary callings of life-is one of

the privileges of a citizen of the United States.'

And again, on page 765, 111 U. S., and on page 658,

4 Sup. Ct.: 'But if it does not abridge the privileges

and immunities of a citizen of the United States to

prohibit him from pursuing his chosen calling, and

giving to others the exclusive right of pursuing it, it

certainly does deprive him (to a certain extent) of

his liberty; for it takes from him the freedom of

adopting and following the pursuit which he

prefers, which, as already intimated, is a material

part of the liberty of the citizen.' It is true that

these remarks were made in regard to questions of

monopoly, but they well describe the rights which

are covered by the word 'liberty,' as contained in

the fourteenth amendment."

Adair v. United States, 208 U.S. 161, 172, 28

S.Ct. 277 (1908):"Such liberty and right embrace

the right to make contracts for the purchase of the

labor of others, and equally the right to make

contracts for the sale of one's own labor; each right,

however, being subject to the

fundamental

condition that no contract, whatever its subjectmatter, can be sustained which the law, upon

reasonable grounds, forbids as inconsistent with

the public interests, or as hurtful to the public

order, or as detrimental to the common good,"

"Of course, the liberty of contract relating to

labor includes both parties to it. The one has as

much right to purchase as the other to sell labor. *

* * The right of a person to sell his labor upon such

terms as he deems proper is, in its essence, the

same as the right of the purchaser of labor to

prescribe the conditions upon which he will accept

such labor from the person offering to sell it," Id.,

Coppage v. Kansas, 236 U.S. 1, 14, 35 S.Ct.

240 (1915): "The principle is fundamental and

vital. Included in the right of personal liberty and

the right of private property-partaking of the

nature of each

is the right to make contracts for

the acquisition of property. Chief among such

contracts is that of personal employment, by which

labor and other services are exchanged for money or

other forms of property. If this right be struck

down or arbitrarily interfered with, there is a

substantial impairment of liberty in the longestablished constitutional sense."

Quinn v. Syracuse Model Neighborhood

Corp., 613 F.2d 438, 446 (2nd Cir. 1980): "It is

well-settled that an individuals liberty can be

implicated when a governmentally imposed stigma

restricts his ability to seek and obtain employment.

This 'broad and majestic' principle, Roth,

supra, 408 U.S. at 571, 92 S.Ct. 2701, embraces

interference with 'the right of the individual to

contract, to engage in any of the common

occupations of life.' Meyer v. Nebraska, 262 U.S.

390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923).

And it is also established that such governmental

action cannot be undertaken unless the individual

is afforded an opportunity to be heard and to 'clear

his name'."

Goetz v. Windsor Central School District, 698

F.2d 606, 609 (2nd Cir. 1983): "Liberty

guaranteed by the Fourteenth Amendment denotes

the right of the individual to engage in the common

occupations of life and to 'enjoy privileges

recognized as essential to the orderly pursuit of

happiness."

Stidham v. Tex. Comm 'n on Private Sec., 418

F.3d 486, 491 (5th Cir. 2005): 'The Supreme Court

has said that "the right to work for a living in the

common occupations of the community is of the

very essence of the

personal freedom and

opportunity that it was the purpose of the

[Fourteenth]Amendment to secure[,]' and this court

has 'confirmed the principle that one has a

constitutionally protected liberty interest in

pursuing a chosen occupation."

Becker v. Illinois Real Estate Admin. and

DisciplinaryBd, 884 F.2d 955, 957 (7th Cir. 1989):

"Several professions have been recognized as

constituting 'common occupations.'

These

professions include an attorney, Sch ware v. Board

of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct.

752, 755-56, 1 L.Ed.2d 796, police officer, physician

and nurse, Bigby v. City of Chicago, 766 F.2d 1053,

1057 (7th Cir. 1985), cert. denied, 474 U.S. 1056,

106 S.Ct. 793, 88 L.Ed.2d 771; psychologist, Illinois

Psychological Ass'n v. Falk, 818 F.2d 1337, 1344

(7th Cir. 1987); and schoolteacher, Thomas v. Board

Of Examiners, 866 F.2d 225, 227 (7th Cir. 1988)

(per curiam)."

Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7

(1915): "It requires no argument to show that the

right to work for a living in the common

occupations of the community is of the very essence

of the personal freedom and opportunity that it

was the purpose of the Amendment to secure."

Meyer v. State of Nebraska, 262 U.S. 390,

399, 43 S.Ct. 625 (1923): "While this court has not

attempted to define with exactness the liberty thus

guaranteed, the term has received much

consideration and some of the included things have

been definitely stated. Without doubt, it denotes

not merely freedom from bodily restraint but also

the right of the individual to contract, to engage in

any of the common occupations of life, to acquire

useful knowledge, to marry, establish a home and

bring up children, to worship God according to the

dictates of his own conscience, and generally to

enjoy those privileges long recognized at common

law as essential to the orderly pursuit of happiness

by free men."

REASONS FOR GRANTING THE PETITION

To resolve an issue of two conflicting

opinions, from two US Circuits. The DC

Circuit accepted the College's determination

that Petitioner is a verbal threat to the

degree that he can never attend higher

education again; while the 11th Circuit states

he is not disabled.

To ensure that Petitioner and every

American is not subjected to conviction

without Due Process allowed for by the DC

Court of Appeals.

To ensure that the Constitutional and

Natural Right to earn a living in a profession

of one's choosing is not indirectly taken away

based on words a college official pretends to

be threatening, but is in fact, free speech.

4) Failure to grant this Petition would force

Petitioner in a lifetime of indentured

servitude

forcing him to pay student loans,

while requiring him to work in a

substandard job. Petitioner, affirms this

injustice and attempts to force him into

slavery will never happen.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

:0 (?~k,

Adem Albra

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