Petition for Writ of Certiorari — Jane Doe, Petitioner v. Timothy White, et al.

No. ______

In the Supreme Court of the United States

__________________

JANE DOE,

v.

TIMOTHY WHITE, ET AL.,

__________________

Petitioner,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

DANIEL CHARLES ROTH

LAW OFFICE OF DAN ROTH

803 Hearst Avenue

Berkeley, CA 94710

JOSHUA ADAM ENGEL

ENGEL AND MARTIN, LLC

4660 Duke Drive

Suite 101

Mason, OH 45040

LARA BAZELON

2130 Fulton Street

Kendrick Hall Suite 211

San Francisco, CA 94117

ALLISON L. EHLERT

Counsel of Record

EHLERT HICKS LLP

2001 Addison Street

Suite 300

Berkeley, CA 94704

(510) 833-7339

aehlert@ehlerthicks.com

JOCELYN SPERLING

LAW OFFICE OF JOCELYN SPERLING

2342 Shattuck Avenue

Suite 121

Berkeley, CA 94704

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

When State actors threaten to deprive

individuals of liberty or property, the Fourteenth

Amendment requires procedural protections that

comport with minimum standards of fairness. In Goss

v. Lopez, 419 U.S. 565, 573-76 (1975), this Court held

that high school students had been unconstitutionally

deprived of their Fourteenth Amendment liberty and

property interests when they were suspended without

notice and an opportunity to be heard. The questions

presented are:

1. Whether students at public colleges and

universities have, as a matter of right, liberty and

property interests when facing suspension or

expulsion, or whether they must make a particular

showing to establish such interests.

2. Whether, given this Court’s decades’-old

decision in Goss, the law was clearly established at the

time of the events giving rise to this case such that

Respondents are not protected by qualified immunity.

ii

PARTIES TO THE PROCEEDING

Jane Doe, petitioner on review, was the

appellant below and plaintiff in the trial court.

Timothy White, Sarah Clegg, Joyce Suzuki,

William Kidder, and Jesse Andrews, respondents on

review, were appellees below and defendants in the

trial court.

STATEMENT OF RELATED PROCEEDINGS

There are no related proceedings.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ...................................... iv

PETITION FOR A WRIT OF CERTIORARI..............1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS.......................................1

INTRODUCTION ........................................................2

STATEMENT OF THE CASE ....................................6

REASONS FOR GRANTING THE WRIT ................11

A.

Background on this Court’s relevant

precedents .......................................................11

B.

The courts of appeals are divided on

whether higher-education students have,

as a matter of right, a liberty interest at

stake in suspension and expulsion

proceedings, or whether they instead must

satisfy the “stigma-plus” test to establish a

liberty interest ................................................17

iv

C.

The courts of appeals are divided on

whether higher-education students have,

as a matter of right, a property interest in

their continued university enrollment or

instead whether any such property interest

must be supplied by a source of law other

than the Constitution .....................................25

D.

The law was clearly established by Goss

that a higher-education student facing

disciplinary proceedings has a protected

liberty interest ................................................29

E.

The Ninth Circuit’s decision is wrong ............31

F.

The questions presented are important,

arise repeatedly, and are squarely raised

in this case ......................................................37

CONCLUSION ..........................................................40

APPENDIX

Appendix A

Memorandum in the United States

Court of Appeals for the Ninth

Circuit

(June 1, 2021)........................... App. 1

Appendix B

Order Granting Defendants’ Motion

to Dismiss without Leave to Amend

in the United States District Court

for the Northern District of

California

(February 24, 2020) ................. App. 7

v

Appendix C

Judgment in the United States

District Court for the Northern

District of California

(February 24, 2020) ............... App. 39

Appendix D

Order Denying Rehearing in the

United States Court of Appeals for

the Ninth Circuit

(July 8, 2021).......................... App. 40

vi

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) ................................................ 31

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ................................................ 31

Barnes v. Zaccari,

669 F.3d 1295 (11th Cir. 2012) .................. 27, 28, 29

Bd. of Curators of the Univ. of Missouri v.

Horowitz, 435 U.S. 78 (1978) ........... 2, 15, 16, 32, 36

Bishop v. Wood,

426 U.S. 341 (1976) ................................................ 35

Branum v. Clark,

927 F.2d 698 (2d Cir. 1991).............................. 27, 29

Camreta v. Greene,

563 U.S. 692 (2011) ................................................ 30

Charleston v. Bd. of Trustees of Univ. of Ill.

at Chicago, 741 F.3d 769 (2013) ...................... 27, 29

District of Columbia v. Wesby,

__ U.S. __, 138 S. Ct. 577 (2018) ............................ 30

Dixon v. Ala. State Bd. of Educ.,

294 F.2d 150 (5th Cir. 1961) .......... 13, 14, 18, 19, 31

Doe v. Miami Univ.,

882 F.3d 579 (6th Cir. 2018) .......... 17, 18, 25, 26, 28

Doe v. Purdue Univ.,

928 F.3d 652 (7th Cir. 2019) .......................... passim

vii

Doe v. Trustees of Indiana Univ.,

496 F. Supp.3d 1210 (S.D. Ind. 2020) .................... 24

Doe v. Trustees of Indiana Univ.,

No. 20-cv-00123, 2021 WL 2213257

(S.D. Ind. May 4, 2021) .......................................... 24

Doe v. Univ. of Cincinnati,

872 F.3d 393 (6th Cir. 2017) .......... 17, 18, 25, 26, 28

Doe v. Univ. of Colorado,

255 F. Supp.3d 1064 (D.Colo. 2017) ...................... 38

Does 1-2 v. Regents of the Univ. of Minn.,

999 F.3d 571 (8th Cir. 2021) .................................. 23

Flaim v. Medical College of Ohio,

418 F.3d 629 (6th Cir. 2005) .................................. 18

Gorman v. Univ. of Rhode Island,

837 F.2d 7 (1st Cir. 1988)........................... 17, 18, 39

Goss v. Lopez,

419 U.S. 565 (1975) ........................................ passim

Gossett v. Oklahoma ex rel. Board of Regents for

Langston University, 245 F.3d 1172 (10th Cir.

2001) ....................................................................... 28

Haidak v. Univ. of Mass.-Amherst,

933 F.3d 56 (1st Cir. 2019)................... 25, 26, 28, 38

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ................................................ 29

Harris v. Blake,

798 F.2d 419 (10th Cir. 1986) ........................ passim

viii

Krainski v. Nevada ex rel. Bd. of Regents of Nevada

Sys. of Higher Ed., 616 F.3d 963 (9th Cir. 2010),

cert denied, 562 U.S. 1286 (2011) ........ 20, 21, 22, 24

Mathews v. Eldridge,

424 U.S. 319 (1976) ................................................ 11

Osei v. Temple Univ.,

518 F. Appx. 86 (3d Cir. 2013) ............................... 19

Paul v. Davis,

424 U.S. 693 (1976) ........................................ passim

Pearson v. Callahan,

555 U.S. 223 (2009) .......................................... 29, 30

Perry v. Sinderman,

408 U.S. 593 (1972) ................................................ 36

Plummer v. Univ. of Houston,

860 F.3d 767 (5th Cir. 2017) ...................... 17, 18, 19

Regents of the Univ. of Mich. v. Ewing,

474 U.S. 214 (1985) ...................................... 2, 16, 32

Regents v. Roth,

408 U.S. 564 (1972) .......................................... 12, 13

Saucier v. Katz,

533 U.S. 194 (2001) ................................................ 30

Schultz v. Incorporated Village of Bellport,

No. 08-CV-0930-JFB-ETB, 2010 WL 3924751

(E.D.N.Y., Sept. 30, 2010), aff'd,

479 F. Appx. 358 (2d Cir. 2012) ............................. 33

Schwake v. Arizona Board of Regents,

821 F. Appx. 768 (9th Cir. 2020).......... 21, 22, 27, 29

ix

Sheppard v. Visitors of Virginia State University,

993 F.3d 230 (4th Cir. 2021) ............................ 26, 29

Swarthout v. Cooke,

562 U.S. 216 (2011) (per curiam) ........................... 11

Tigrett v. Rector and Visitors of Univ. of Virginia,

290 F.3d 620 (4th Cir. 2002) .................................. 23

Wisconsin v. Constantineau,

400 U.S. 433 (1971) ................................................ 13

Woodis v. Westark Comm. College,

160 F.3d 435 (8th Cir. 1998) .................................. 23

Zinermon v. Burch,

494 U.S. 113 (1990) ................................................ 11

Constitution and Statutes

U.S. Const. amend. XIV .................................... passim

28 U.S.C. § 1254(1) ...................................................... 1

42 U.S.C. § 1983 ................................................ passim

Regulations

Nondiscrimination on the Basis of Sex in

Education Programs or Activities Receiving

Federal Financial Assistance, 85 Fed. Reg.

30026 (May 19, 2020) ............................................. 33

Other Authorities

Curtis L. Berger & Vivian Berger, Academic

Discipline: A Guide to Fair Process for the

University Student, 99 Colum. L. Rev. 289

(1999) ...................................................................... 37

x

Fernand N. Dutile, Students and Due Process in

Higher Education: Of Interests and Procedures,

2 Fla. Coastal L.J. 243 (2001) ................................ 16

Samantha Harris & KC Johnson, Campus Courts

in Court: The Rise in Judicial Involvement in

Campus Sexual Misconduct Adjudications, 22

N.Y.U. J. Legis. & Pub. Pol’y 49 (2019) ................... 4

Tamara Rice Lave, Ready, Fire, Aim: How

Universities Are Failing the Constitution in

Sexual Assault Cases, 48 Ariz. St. L.J. 637

(2016) ...................................................................... 37

Open Letter from Members of the Penn Law

School Faculty, Sexual Assault Complaints:

Protecting Complainants and the Accused

Students at Universities (Feb. 18, 2015),

http://online.wsj.com/public/resources/document

s/2015_0218_upenn.pdf ............................................ 5

Rethink Harvard’s Sexual Harassment Policy,

Boston Globe (Oct. 15, 2014),

https://www.bostonglobe.com/opinion/2014/10/1

4/rethink-harvard-sexual-harassmentpolicy/HFDDiZN7nU2UwuUuWMnqbM/story.h

tml ............................................................................. 5

U.S. Department of Education Dear Colleague

Letter (2017) ......................................................... 4, 5

1

PETITION FOR A WRIT OF CERTIORARI

Jane Doe respectfully petitions for a writ of

certiorari to review the judgment of the Court of

Appeals for the Ninth Circuit.

OPINIONS BELOW

The Ninth Circuit’s opinion is unpublished but

is available at 859 F. Appx. 76 (9th Cir. 2021). Pet.

App. 1-6. The district court’s opinion is reported at 440

F. Supp.3d 1074 (N.D. Cal. 2020). Pet. App. 7-38.

JURISDICTION

The Ninth Circuit entered judgment on June 1,

2021. Doe thereafter filed a timely petition for

rehearing, which the court denied on July 8, 2021. Pet.

App. 40. On July 19, 2021, this Court entered a

standing order, the effect of which extends the time to

file a petition for writ of certiorari in this case to

December 6, 2021. This Court has jurisdiction under

28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Due Process Clause of the

Amendment provides in relevant part:

Fourteenth

[N]or shall any State deprive any person

of life, liberty, or property, without due

process of law . . . .

2

42 U.S.C. § 1983 provides in relevant part:

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 and laws,

shall be liable to the party injured in an

action at law, suit in equity, or other

proper proceeding for redress . . . .

INTRODUCTION

In 1975, this Court held that high school

students were deprived of their Fourteenth

Amendment rights to liberty and property when they

were suspended without notice and an opportunity to

be heard. Goss v. Lopez, 419 U.S. 565, 576 (1975).

Since Goss, this Court has twice assumed, but never

expressly decided, that students enrolled in public

colleges and universities also possess constitutionally

protected liberty or property interests when they face

suspension and expulsion proceedings. Bd. of Curators

of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 8485 (1978); Regents of the Univ. of Mich. v. Ewing, 474

U.S. 214, 223 (1985). Each of the federal courts of

appeals to consider the issue has held the Due Process

Clause applies to such proceedings in the highereducation context, but they are split on what higher-

3

education students must show, if anything, to

establish a liberty or property interest—the threshold

question of any procedural due-process analysis.

Among the Circuits, the First, Fifth, and Sixth

Circuits have taken the most expansive view, holding

that

higher-education

students

confronting

suspension or expulsion inherently have a Fourteenth

Amendment liberty interest at stake. Students in

those Circuits are thus not required to show any

special facts because their liberty interests are

automatically deemed to be at risk. The Seventh,

Ninth, and Tenth Circuits, on the other hand, take a

considerably narrower view. These courts require

students to satisfy a “stigma-plus” test by showing:

(1) they suffered a stigma to their reputations;

(2) university officials publicly disclosed their

purported wrongdoing; and (3) they suffered some

change to their legal status. The far more onerous

nature of the stigma-plus test means that plaintiffs

are typically unable to establish the existence of a

protected liberty interest. Indeed, the Ninth Circuit

held that Petitioner Jane Doe failed to satisfy this test

and that consequently, she did not allege a

constitutionally protected liberty interest.

The Circuits are likewise split on the

circumstances under which higher-education students

may invoke a constitutionally protected property

interest when confronting disciplinary proceedings.

The First and Sixth Circuits hold that these students

have a property interest in their education as a matter

4

of right (much like both Circuits recognize a liberty

interest as a matter of right). Most other Circuits,

however (including the Second, Fourth, Seventh,

Ninth, and Eleventh), require students to allege that

some other non-constitutional source of law, such as a

state statute or university policy, confers upon them a

property interest in their continued enrollment, as the

Ninth Circuit did here.

University students suspended or expelled by

their institutions are increasingly filing section 1983

actions in federal court alleging they were denied

procedural due process in the investigations brought

against them—including in cases where students are

charged with sexual misconduct, as Doe here was by

Sonoma State University. See Samantha Harris & KC

Johnson, Campus Courts in Court: The Rise in

Judicial Involvement in Campus Sexual Misconduct

Adjudications, 22 N.Y.U. J. Legis. & Pub. Pol’y 49

(2019). Courts and commentators alike have

frequently deemed university disciplinary proceedings

fundamentally prejudicial to the accused. 1 But before

In 2017, the U.S. Department of Education withdrew prior

guidance concerning university investigations of sexual-violence

complaints, explaining:

1

Legal commentators have criticized the [prior

guidance]... for placing “improper pressure upon

universities to adopt procedures that do not afford

fundamental fairness.” [As a result, many schools have

established procedures for resolving allegations that]

lack the most basic elements of fairness and due process,

are overwhelmingly stacked against the accused, and are

in no way required by Title IX law or regulation.

5

there can be any examination of the procedures used,

there must first be a finding that the student has a

constitutionally protected liberty or property interest.

In the First, Fifth, and Sixth Circuits, students

inherently have such interests, and those courts

therefore reach the merits of the students’ procedural

due-process claims without any requirement that the

students meet a particular test or show a violation of

state law. But in the Seventh, Ninth, and Tenth

Circuits, the contrary is true and, as a result, the cases

of students in those Circuits are often dismissed before

any analysis of the procedures deployed against them

can be undertaken—no matter how fundamentally

unfair those procedures may have been.

This Court should grant review to clarify that

higher-education students have a protected liberty

and property interest when facing suspensions or

expulsions, and to reject the unnecessarily exacting

approach endorsed by some Circuits.

Dear Colleague Letter (2017) at 1-2 (quoting Open Letter from

Members of the Penn Law School Faculty, Sexual Assault

Complaints: Protecting Complainants and the Accused Students

at

Universities

(Feb.

18,

2015)

(http://online.wsj.com/public/resources/documents/2015_0218_u

penn.pdf); Rethink Harvard’s Sexual Harassment Policy, Boston

Globe

(Oct.

15,

2014)

(https://www.bostonglobe.com/opinion/2014/10/14/rethinkharvard-sexual-harassmentpolicy/HFDDiZN7nU2UwuUuWMnqbM/story.html).

6

STATEMENT OF THE CASE

1. Doe began studying for her master’s degree

in Depth Psychology at Sonoma State University in

September 2016. Pet. App. 8. There were 11 students

in her cohort and they all took their classes together.

Id. at 9.

In the spring of 2017, Doe and her cohort were

enrolled in a class called Methods in Depth

Psychology. Id. at 9. The syllabus for the course

encouraged students to “experiment[] and maintain[]

curiosity in the face of discomfort” and “ride the edge

of your comfort zone and push yourself into new

terrain.” Id. at 9-10, 64-65.

On April 27, the students participated in an

“Authentic Movement” exercise. Id. at 9-10. They

paired up during the exercise, and Doe was paired

with student NH. Id. at 10, 65. One student in each

pair was designated the “mover” and the other the

“witness.” Id. at 9. The instructor directed the

“movers” to “challenge yourself to move in ways that

might be taboo or that you might not normally move.”

Id.

After the class, two students, NH and DB, wrote

the instructor to complain about Doe’s movements. Id.

They alleged her movements were harassing because

they simulated masturbation. Id. at 10-11. A third

student, VH, also complained. Id. at 10. VH admitted

she had not actually seen Doe’s movements herself,

7

but said, “hearing about her actions alone was

triggering and anxiety producing.” Id.

On May 11, 2017, DB filed a written complaint

accusing Doe of sexually harassing NH during the

movement exercise. Id. at 11. VH and NH also filed

complaints. Id. In the wake of these complaints, the

course instructor wrote Doe to say, “rest assured that

I hold the perspective that . . . your movement . . . was

not egregious nor directed at anyone in a harassing

manner. You were simply doing the exercise and your

interpretation of it.” Id.

Sonoma State’s Title IX Coordinator, Joyce

Suzuki, initiated an investigation of the students’

complaints on May 18, 2017. Id. at 11. Suzuki wrote

Doe on May 19 to notify her that DB and NH had

accused her of engaging in a display of masturbation

during the movement exercise without the consent of

NH, or her classmates. Id.

On July 18, two months after the investigation

was launched, Suzuki interviewed Doe. Id. at 12. She

said that Doe would be able to return to class when

school resumed in late August. Id. On August 19,

Suzuki backtracked from her prior representation and

informed Doe that she would not, in fact, be permitted

to return to class while the investigation was pending.

Id. at 12. Suzuki characterized what was, in effect, a

suspension, as an “interim remedy.” Id.

Three people were in charge of the investigation

at different times. Id. at 12. Besides Doe, the

8

investigators interviewed the complainants and the

course instructor. Id. at 12-13. During the prolonged

investigation, Doe regularly inquired about its status,

but without success. Id. at 12-13.

Finally, on June 2, 2018, the Deputy

Coordinator informed Doe and the complainants that

they could review the evidence and submit responses.

Id. at 13-14. Doe submitted her response on July 30.

Id. at 14.

On August 22, 2018, the University exonerated

Doe of any wrongdoing. Id.

Doe ended up suspended from Sonoma State for

14 months, from May 2017 until August 2018. She was

thus excluded from the entire second year of her

graduate program. She did not receive any hearing

before being suspended or during the suspension at

which she could confront her accusers and the

evidence against her.

2. On August 15, 2019, Doe filed suit in the

Northern District of California, naming as Defendants

five individuals involved in the University’s

disciplinary proceedings. Id. at 43, 46-48. Doe asserted

one cause of action under 42 U.S.C. § 1983 against all

the Defendants, alleging she had been deprived of her

constitutional right to Due Process under the Fifth

and Fourteenth Amendments. Id. at 79-82.

Defendants moved to dismiss the complaint.

The district court was disturbed by Doe’s allegations,

commenting that if true, “plaintiff has raised serious

9

questions about whether she was provided due process

during the Title IX investigation and imposition of the

‘interim remedy’ of preventing plaintiff from attending

class for 14 months while the inordinately lengthy

investigation took place.” Id. at 37-38 n.13.

Nonetheless, the district court granted Defendants’

motion to dismiss. The court agreed with Defendants

that they were entitled to qualified immunity because

the law was not clearly established that graduate

students, like Doe, have a constitutionally protected

liberty or property interest in their continued

university enrollment. Id. at 21-38. At the same time,

the district court explained that it would “welcome

guidance” concerning how procedural due process

applies to university disciplinary proceedings given

the increasing number of cases like Doe’s:

Based upon the Court’s research, it

appears that cases involving procedural

due process claims by post-secondary

students accused of misconduct arise

with some frequency. Thus, these issues

will continue to be litigated, and the

Court would welcome guidance from the

Ninth Circuit about the standards

governing such claims.

Id. at 37 n.13.

3. The Ninth Circuit affirmed. Id. at 1-6. Like

the district court, the Ninth Circuit concluded that

Doe had not pleaded the existence of any liberty or

10

property interests entitling her to the procedural

safeguards of the Fourteenth Amendment. Id. at 2-6.

First, the court held there was no clearly

established protected property interest at stake

because California law is ambiguous as to whether

there is a contractual relationship between public

colleges and universities and their students. Id. at 35.

Next, the court applied what has come to be

known as the “stigma-plus” test to assess whether Doe

had adequately alleged a protected liberty interest. Id.

at 5-6. It held she did not. Id. It reasoned that Doe had

not satisfied the “stigma” element of the test because

she had not pleaded facts indicating Sonoma State had

injured her reputation by publicly disclosing the

charges in the misconduct investigation. Id. at 5. It

further reasoned she had not satisfied the “plus”

element of the test, rejecting as a basis for this

element the 14-month suspension she suffered. Id. at

6.

The Ninth Circuit therefore concluded Doe had

no protected liberty or property interests at stake and

it affirmed the dismissal of her complaint.

This petition follows.

11

REASONS FOR GRANTING THE WRIT

A.

Background

precedents.

on

this

Court’s

relevant

“The fundamental requirement of due process is

the opportunity to be heard at a meaningful time and

in a meaningful manner.” Mathews v. Eldridge, 424

U.S. 319, 333 (1976). A plaintiff who alleges that his

or her procedural due-process rights have been

violated must satisfy a two-step showing. First, the

plaintiff must allege the deprivation of a

constitutionally protected liberty or property interest.

Second, he or she must allege that the procedures used

to deprive him or her of that interest did not satisfy

the minimum standards of the Due Process Clause.

See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per

curiam); Zinermon v. Burch, 494 U.S. 113, 125 (1990).

This case involves the threshold question of what a

higher-education student must show to establish the

deprivation of a constitutionally protected liberty or

property interest.

1. Nearly 50 years ago, in Goss v. Lopez, 419

U.S. 565 (1975), this Court considered what

procedural due-process protections high school

students were owed before they were suspended.

There, nine Columbus, Ohio high school students had

been suspended for up to 10 days each without any

notice of the charges against them or an opportunity

to contest those charges. Id. at 568. They brought suit

against various administrators employed by the

Columbus Public School System, alleging the

12

deprivation of their constitutional due-process rights.

Id. at 567.

This Court first considered whether the

students had a protected property interest in their

public education. Id. at 572-74. To answer that

question, the Court looked to state law, explaining

that, “[p]rotected interests in property are normally

‘not created by the Constitution. Rather, they are

created and their dimensions are defined’ by an

independent source such as state statutes or rules

entitling the citizen to certain benefits.” Id. at 572-73

(quoting Regents v. Roth, 408 U.S. 564, 577 (1972)).

The Court reasoned that because Ohio law provided

for a free education to all residents between the ages

of five and 21, and because the State mandated school

attendance, the high school students “plainly had

legitimate claims of entitlement to a public education.”

Id. at 573. Having chosen to make education a right,

Ohio could not eliminate that right based on alleged

student misconduct in the absence of “fundamentally

fair procedures to determine whether the misconduct

has occurred.” Id. at 574. Ohio students thus had a

property interest protected by the Fourteenth

Amendment in their public educations. Id.

This Court proceeded to consider whether the

students also had a protected liberty interest in their

education. Id. at 574-75. The Court held that they did:

“‘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

13

Clause must be satisfied.” Id. at 574 (quoting

Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)).

The suspensions, reasoned the Court, “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.”

Id. at 575.

Importantly, Goss cited the Fifth Circuit’s

decision in Dixon v. Ala. State Bd. of Educ., 294 F.2d

150 (5th Cir. 1961) with approval and characterized it

as a “landmark decision.” 419 U.S. at 576 n.8. In

Dixon, students at Alabama State College were

expelled, apparently for participating in a civil rights

demonstration. 294 F.2d at 151-54. The Fifth Circuit

held they had a constitutionally protected interest in

their continued enrollment that was violated when

they were expelled without notice or a hearing. Id. at

154-55. The court treated the applicability of the Due

Process Clause as indisputable:

The precise nature of the private interest

involved in this case is the right to

remain at a public institution of higher

learning in which the plaintiffs were

students in good standing. It requires no

argument to demonstrate that education

is vital, and indeed, basic to civilized

society. Without sufficient education the

plaintiffs would not be able to earn an

adequate livelihood, to enjoy life to the

fullest, or to fulfill as completely as

14

possible the duties and responsibilities of

good citizens.

Id. at 157. The Goss Court observed that since Dixon

“the lower federal courts have uniformly held the Due

Process Clause applicable to decisions made by taxsupported educational institutions to remove a

student from the institution long enough for the

removal to be classified as an expulsion.” 419 U.S. at

576 n.8 (collecting cases).

2. A year after Goss was decided, this Court

decided Paul v. Davis, 424 U.S. 693 (1976). Paul had

nothing to do with the procedural due-process rights

of students and instead arose from the distribution of

fliers by city and county police departments branding

the plaintiff a criminal. Id. at 694-95.

The police had distributed a five-page flier to

Louisville, Kentucky merchants containing the names

and mug shots of purported shoplifters. Id. at 695.

Respondent Edward Davis was a photographer with

the Louisville Courier-Journal and Times. Id. at 696.

He was among those included on the flier because he

had been arrested and arraigned on a charge of

shoplifting, but the charge was dismissed shortly after

the flier was circulated. Id. at 695-96. Davis’s

supervisor confronted him about the flier and warned

him that while he would not be fired over it, he had

better not find himself in similar circumstances in the

future. Id. at 696.

15

Davis filed a section 1983 action, arguing the

dissemination of the flyer had unconstitutionally

deprived him of liberty under the Due Process Clause.

Id. at 698. He argued that publicly branding him an

“active shoplifter” impaired his future employment

prospects and interfered with his ability to enter local

business establishments for fear of arousing suspicion

or false accusations of stealing. Id. at 697.

This Court held that although Davis had

suffered a stigma to his reputation, that fact, by itself,

was insufficient to trigger the Due Process Clause. Id.

at 697-98, 701. Surveying its precedents, the Court

concluded there had to be some “alteration of legal

status” accompanying the defamation, such as the loss

of employment, for the claimant to be entitled to the

safeguards of procedural due process. Id. at 708-09.

The Court viewed Paul as consistent with Goss,

but in so stating, it referred only to Goss’s property

analysis, which was predicated on Ohio law, and not

to its liberty analysis. Id. at 710. The three dissenting

justices criticized the majority for what they regarded

as the latter’s selective reading of Goss. Id. at 730 n.15.

Twice before this Court has assumed that

university students possess a constitutionally

protected liberty or property interest, but it went on to

decide those cases on other grounds. Horowitz, 435

U.S. at 84-85 (assuming without deciding plaintiff’s

dismissal from medical school deprived her of a liberty

or property interest, but holding she had “been

awarded at least as much due process as the

16

Fourteenth Amendment requires”); Ewing, 474 U.S.

at 223 (“We therefore accept the University’s

invitation to assume the existence of a constitutionally

protectible property right in [the student’s] continued

enrollment, and hold that even if [the student’s]

assumed property interest gave rise to a substantive

right under the Due Process Clause to continued

enrollment free from arbitrary state action, the facts

of record disclose no such action.”); see also Fernand

N. Dutile, Students and Due Process in Higher

Education: Of Interests and Procedures, 2 Fla. Coastal

L.J. 243, 261 (2001) (commenting that, “This failure of

guidance [in Horowitz and Ewing], on a clearly

threshold issue, may well have spawned, or at least

lengthened, litigation against universities and

others.”). 2

The courts of appeals that have considered the

issue uniformly agree the Fourteenth Amendment’s

procedural due-process guarantees apply to highereducation students confronting suspension or

expulsion. But they are divided about what is required

to establish procedural due-process claims in this

context. As the district court noted, this issue is

becoming more acute with each passing day as an

increasing number of students subjected to university

2 Horowitz and Ewing involved academic dismissals, rather than

disciplinary proceedings based on charges of misconduct.

Horowitz noted the “significant difference” between the two, but

the difference involves the degree of process owed, not the

threshold question of whether there is a protected interest at

stake. Id. at 86-90 & n.3.

17

discipline seek vindication of their rights in federal

court. Pet. App. 37 n.13. This Court’s intervention is

urgently needed.

B.

The courts of appeals are divided on

whether higher-education students have,

as a matter of right, a liberty interest at

stake in suspension and expulsion

proceedings, or whether they instead

must satisfy the “stigma-plus” test to

establish a liberty interest.

The courts of appeals have adopted divergent

standards governing when higher-education students

have adequately shown the deprivation of a liberty

interest protected by the Fourteenth Amendment.

Some Circuits follow in the footsteps of Goss and hold

that

university

disciplinary

proceedings

automatically implicate a protected liberty interest.

Other circuits do not treat this as a foregone

conclusion. They instead apply Paul and what they

describe as Paul’s “stigma-plus” test. Under that

approach, to invoke a constitutionally protected

liberty interest, students must show they suffered

both a stigma to their reputation as well as some

change in their legal status.

1. The First, Fifth, and Sixth Circuits apply the

Goss standard. See e.g., Gorman v. Univ. of Rhode

Island, 837 F.2d 7 (1st Cir. 1988); Plummer v. Univ. of

Houston, 860 F.3d 767 (5th Cir. 2017); Doe v. Miami

Univ., 882 F.3d 579 (6th Cir. 2018); Doe v. Univ. of

Cincinnati, 872 F.3d 393 (6th Cir. 2017). The First

18

Circuit has stated, for instance, that, “It is . . . not

questioned that a student’s interest in pursuing an

education is included within the Fourteenth

Amendment’s protection of liberty and property.”

Gorman, 837 F.2d at 12 (citing Goss, 419 U.S. at 57475). Students at public colleges and universities faced

with the prospect of suspension or expulsion are

therefore “entitled to the protections of due process.”

837 F.2d at 12.

The Sixth Circuit takes the same approach. In

Flaim v. Medical College of Ohio, 418 F.3d 629, 633

(6th Cir. 2005), a case concerning the expulsion of a

medical student for a felony drug offense, the court

stated, “In this Circuit, we have held that the Due

Process Clause is implicated by higher education

disciplinary decisions.” Likewise, in two more recent

cases brought by students disciplined for sexual

misconduct, the court stated that “allegations of

sexual assault may impugn a student’s reputation and

integrity, thus implicating a protected liberty

interest.” Univ. of Cincinnati, 872 F.3d at 399

(internal quotation marks and citation omitted);

Miami Univ., 882 F.3d at 599.

In Plummer, 860 F.3d at 770, 774, the Fifth

Circuit relied on Goss and Dixon to hold that two

students expelled for violating the University of

Houston’s

sexual-misconduct

policy

had

a

constitutionally protected liberty interest in their

higher education. The Plummer majority went on to

hold that the university’s disciplinary procedures were

19

constitutionally adequate. Id. at 774-75. The dissent

disagreed that the procedures satisfied the Due

Process Clause, but it concurred with the majority’s

holding that the students had a protected liberty

interest at stake: “The panel correctly cites this court’s

decision in Dixon for the proposition that the students

have at least liberty interests protected under the due

process clause.” Id. at 781 (J. Jones, dissenting).

Thus, in the First, Fifth, and Sixth Circuits,

university students who bring section 1983 actions

challenging the procedures used to punish them do not

have to show any particular facts to establish they

have a protected liberty interest under the Fourteenth

Amendment. In these circuits, it is axiomatic that they

do. 3

2. That is not the case in the Seventh, Ninth,

and Tenth Circuits. Those courts do not regard liberty

within the meaning of the Due Process Clause as

invariably at stake in university disciplinary

proceedings. Instead, they rely on Paul and hold that

university students must comply with Paul’s stigmaplus test to establish a protected liberty interest. This

requires students to allege a stigma to their

reputations and some “alteration of legal status” as a

result of university disciplinary proceedings. See e.g.,

Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019);

The Third Circuit has also held the Due Process Clause

applicable to university disciplinary proceedings, but it has not

specified whether the right at stake is a property right or a liberty

right. See Osei v. Temple Univ., 518 F. Appx. 86, 88 (3d Cir. 2013)

(quoting Goss, 419 U.S. at 581).

3

20

Krainski v. Nevada ex rel. Bd. of Regents of Nevada

Sys. of Higher Ed., 616 F.3d 963 (9th Cir. 2010), cert

denied, 562 U.S. 1286 (2011); Harris v. Blake, 798 F.2d

419 (10th Cir. 1986). These circuits construe Paul as

having “circumscribed the reach” of Goss. Krainski,

616 F.3d at 971.

One of the leading cases in this area is the

Seventh Circuit’s decision in Purdue. 4 There, Purdue

suspended John Doe for one year after finding him

responsible for sexually assaulting a female student.

928 F.3d at 656. The Navy ROTC then expelled John,

dashing his plan to pursue a naval career. Id. at 656.

John filed a section 1983 action, contending Purdue’s

disciplinary process did not satisfy the minimum

standards of fairness mandated by the Due Process

Clause. Id. at 659.

In assessing whether John alleged a protected

liberty interest, the Seventh Circuit held he had to

show “that the state inflicted reputational damage

accompanied by an alteration in legal status that

deprived him of a right he previously held.” Id. at 661

(citing Paul, 424 U.S. at 708-09). To adequately allege

stigma, John had to plead facts establishing Purdue

publicly disclosed his disciplinary history. Id. at 66162. He did so, reasoned the court, based on his

allegation that he was required to authorize Purdue to

4 The Purdue decision was authored by Justice Barrett, while

sitting on the Seventh Circuit.

21

disclose to the Navy he had been found guilty of sexual

assault. Id. at 662.

Next, the court considered whether John had

pleaded sufficient allegations of the “plus” element, of

the stigma-plus test, asking whether “the stigma was

accompanied by a change in legal status.” Id. at 662.

The court concluded he had because the university’s

finding that he was guilty of sexual assault “changed

John’s legal status: he went from a full-time student

in good standing to one suspended for an academic

year.” Id. This in turn deprived him of occupational

liberty because he was precluded from pursuing a

career in the Navy. Id. at 662-63.

The Ninth Circuit likewise applies the stigmaplus test. In Krainski, 616 F.3d at 971, the plaintiff

alleged her reputation had been damaged as a result

of being found guilty of Student Conduct Code

violations. Relying on Paul, the court deemed such

reputational-injury allegations insufficient to trigger

the protections of the Due Process Clause. More

recently, in Schwake v. Arizona Board of Regents, 821

F. Appx. 768, 770-71 (9th Cir. 2020), the Ninth Circuit

applied perhaps the most stringent version of the

stigma-plus test, holding that it cannot be satisfied

absent a showing that the punishment meted out by

the university has the practical effect of entirely

22

foreclosing a student from pursuing his or her chosen

profession. 5

As in Krainski and Schwake, the Ninth Circuit

applied the stigma-plus test in this case, concluding

Doe had not adequately alleged either the “stigma” or

“plus” elements. Pet. App. 5-6. The stigma element

was not satisfied, according to the court, because Doe

did not allege that the sexual-harassment charges

leveled against her were publicly disclosed. Id. at 5. As

to the “plus” element, the court rejected Doe’s

argument that Sonoma State changed her legal status

by suspending her. Id. at 5-6.

Finally, the test applied by the Tenth Circuit

closely resembles “stigma-plus,” although the court

has not expressly labeled it as such. In Harris, 798

F.2d at 420-22 n.2, the plaintiff was forced to

withdraw from his graduate psychology program due

to poor grades. He alleged his procedural due-process

rights had been infringed when one of his professors

placed a letter in his file criticizing his competence and

professional ethics, which allegedly caused other

professors to give him poor grades. Id. at 420-22. The

Tenth Circuit held he did not have a liberty interest at

play because the damaging letter had not been

distributed outside his academic program (in line with

the “publication” aspect of the stigma-plus test applied

5 The Ninth Circuit’s unpublished Schwake opinion “assumed”

the stigma-plus test applied even though the earlier, published

decision in Krainski held that it did. The Schwake panel may

have been unaware of the Circuit’s precedent, as it did not cite

Krainski.

23

by the Seventh and Ninth Circuits), and because he

had not been entirely prevented from pursuing his

future career plans (in line with the Ninth Circuit’s

especially exacting application of the stigma-plus test

in Schwake). 6 Id. at 422 n.2.

3. The overarching Circuit split between the

First, Fifth, and Sixth Circuits, on the one hand, and

the Seventh, Ninth, and Tenth Circuits, on the other

hand, means that students confront dramatically

different Circuit-dependent burdens to establish the

deprivation of a constitutionally protected liberty

interest. Students in the First, Fifth, and Sixth

Circuits have no burden at all since those Circuits

treat students as possessing a protected liberty

interest as a matter of right.

Things are not so simple for students in the

Seventh, Ninth, and Tenth Circuits. The Paul stigmaplus test adopted by those Circuits erects an onerous

burden for students. Besides alleging harm to their

reputations—which must include facts showing the

universities caused the harm by disclosing the

students’ misconduct—plaintiffs must also allege a

change in their legal status.

6 The Fourth Circuit has not expressly applied the stigma-plus

test but has at least suggested that it yet may. See Tigrett v.

Rector and Visitors of Univ. of Virginia, 290 F.3d 620, 627-28 (4th

Cir. 2002).

The Eighth Circuit’s jurisprudence is somewhat

muddled. Compare Woodis v. Westark Comm. College, 160 F.3d

435, 440 (8th Cir. 1998), with Does 1-2 v. Regents of the Univ. of

Minn., 999 F.3d 571, 583 (8th Cir. 2021).

24

Inevitably, the Circuits’ very different

approaches

are

almost

always

outcome

determinative—at least insofar as they control

whether the courts proceed to the next step of

considering the fairness of the challenged disciplinary

procedures. The First, Fifth, and Sixth Circuits

invariably reach that analysis but the Seventh, Ninth,

and Tenth Circuits typically do not, because plaintiffs

only occasionally succeed in clearing the stigma-plus

bar. The Ninth Circuit did not consider the challenged

procedures in either Krainski or this case, and the

Tenth Circuit did not do so in Harris. Although the

Seventh Circuit reached the procedural-fairness

question in Purdue, district courts in that Circuit since

Purdue was issued have more often than not found the

stigma-plus test not satisfied and therefore have not

proceeded to analyze the university disciplinary

procedures. See e.g., Doe v. Trustees of Indiana Univ.,

No. 20-cv-00123, 2021 WL 2213257, *4-5 (S.D. Ind.

May 4, 2021) (holding stigma-plus test not met); Doe

v. Trustees of Indiana Univ., 496 F. Supp.3d 1210,

1216-17 (S.D. Ind. 2020) (same); but see Doe v. Purdue

Univ., 464 F. Supp.3d 989, 1001-02 (N.D. Ind. 2020).

25

C.

The courts of appeals are divided on

whether higher-education students have,

as a matter of right, a property interest in

their continued university enrollment or

instead whether any such property

interest must be supplied by a source of

law other than the Constitution.

This Court has held that property interests

protected by the Fourteenth Amendment are not

typically created by the Constitution, but instead by

other sources of law, such as state statutes. Goss, 419

U.S. at 572-73; Paul, 424 U.S. at 709.

Based on this precept, several Circuits hold that

university students do not have any property interest

in their education unless such an interest is conferred

by the law of the state in which the university is

located and/or the university’s particular policies.

Other Circuits hold that higher-education students

possess an inherent property interest in their

continued enrollment.

1. The First and Sixth Circuits fall within this

latter category. See Haidak v. Univ. of Mass.-Amherst,

933 F.3d 56 (1st Cir. 2019); Miami Univ., 882 F.3d at

599; Univ. of Cincinnati, 872 F.3d at 399. They hold

that university students necessarily possess a

property interest in their education and they do not

undertake any separate inquiry to ascertain whether

such a property right is embodied in state law or the

university’s policies.

26

In Haidak, for example, the court invoked Goss

for the proposition that students have a “‘legitimate

entitlement to a public education as a property

interest’” protected by the Due Process Clause:

It has long been clear that, though states

have broad authority to establish and

enforce codes of conduct in their

educational institutions, they must

“recognize

a

student’s

legitimate

entitlement to a public education as a

property interest which is protected by

the Due Process Clause and which may

not be taken away for misconduct

without adherence to the minimum

procedures required by that Clause.”

Haidak, 933 F.3d at 65 (quoting Goss, 419 U.S. at 574);

see also Miami Univ., 882 F.3d at 599 (stating that

“[s]uspension clearly implicates a protected property

interest . . . .”) (internal quotation marks and citation

omitted); Univ. of Cincinnati, 872 F.3d at 399 (same).

2. Most other Circuits, however, do not

recognize an inherent property interest in public

higher education but instead hold that a property

interest must be conferred by state law or university

policies.

In Sheppard v. Visitors of Virginia State

University, 993 F.3d 230, 239 (4th Cir. 2021), the

Fourth Circuit held the plaintiff had to show that

Virginia “created [a] property interest in continued

27

enrollment at a public education institution,” which he

failed to do. Similarly, in Branum v. Clark, 927 F.2d

698, 705 (2d Cir. 1991), the Second Circuit concluded

that because New York recognizes an implied contract

between its public colleges and universities and their

students, the plaintiff had a property interest in

continuing his education that was entitled to

constitutional protection.

The Seventh Circuit also rejects “a stand-alone

property interest in an education at a state

university.” Charleston v. Bd. of Trustees of Univ. of

Ill. at Chicago, 741 F.3d 769, 772 (2013). While that

court allows express or implied contracts between

students and universities to form the basis of a

protected property interest, the plaintiff must be

specific in identifying the exact promises the

university made to him or her, and the return

promises he or she made to the university. Id. at 773;

see also Purdue, 928 F.3d at 660 (“And to demonstrate

that he possesses the requisite property interest, a

university student must . . . establish that the contract

entitled him to the specific right that the university

allegedly took, such as the right to a continuing

education or the right not to be suspended without

good cause.”) (internal quotation marks and citation

omitted). Finally, the Ninth and Eleventh Circuits

also decline to recognize a property interest in the

absence of a state- or contract-based authority. See

Schwake, 820 F. Appx. at 770 (holding the plaintiff

failed to identify any Arizona law conferring a

property right in his continued education); Barnes v.

28

Zaccari, 669 F.3d 1295, 1304-05 (11th Cir. 2012)

(holding that the university’s student Code of Conduct

and the Board of Regents’ Policy Manual bestowed a

property interest that could not be taken away

without complying with the Due Process Clause). In

this case, the Ninth Circuit held that California law is

equivocal as to whether university students have a

property interest in their education. Pet. App. 3-4. It

therefore would not recognize one. 7

3. Like the split in authority concerning a

liberty interest, this property-interest split carries

significant

consequences

for

higher-education

plaintiffs. The First and Sixth Circuits’ recognition of

an inherent, stand-alone property interest in students’

continued enrollment means those courts will

invariably reach the question as to whether a

university’s

disciplinary

procedures

were

fundamentally fair in compliance with the Fourteenth

Amendment. See Haidak, 933 F.3d at 66-73; Miami

Univ., 882 F.3d at 599-604; Univ. of Cincinnati, 872

F.3d at 399-407. Not so in the other Circuits, in which

plaintiffs must point to specific state laws and/or

university policies to establish a constitutionally

7 The Tenth Circuit is at odds with itself. In Harris v. Blake, 798

F.2d 419, 422 (10th Cir. 1986), cert denied, 479 U.S. 1033 (1987),

the court concluded that the plaintiff had a property interest

under Colorado law entitling him to procedural due process. In

Gossett v. Oklahoma ex rel. Board of Regents for Langston

University, 245 F.3d 1172, 1181 (10th Cir. 2001), the court relied

on Harris to support its conclusion that the plaintiff had a

property interest in his continued enrollment in nursing school,

even though the university was in Oklahoma, not Colorado.

29

protected property interest. These courts have deemed

this requirement satisfied only about half the time.

See Branum, 927 F.2d at 705; Harris, 798 F.2d at 422;

Barnes, 669 F.3d at 1304-05; but see Sheppard, 993

F.3d at 239 (holding that no independent source of law

conferred a property interest on university students);

Purdue, 928 F.3d at 660 (same); Charleston, 741 F.3d

at 772 (same); Schwake, 820 Fed. App’x at 770 (same).

This Court’s intervention is necessary to clarify,

once and for all, whether students inherently have a

protected property interest in their continued

enrollment in public colleges or universities, or

whether no such interest exists absent a state statute,

university policy, or some other source of law

providing for it.

D.

The law was clearly established by Goss

that a higher-education student facing

disciplinary proceedings has a protected

liberty interest.

The doctrine of qualified immunity protects

government officials from liability for civil damages

insofar as their conduct does not violate clearly

established statutory or constitutional rights. Pearson

v. Callahan, 555 U.S. 223, 231 (2009); Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). This Court has

articulated a two-part test for resolving qualifiedimmunity claims.

First, a court must decide whether the

facts that a plaintiff has alleged . . . or

30

shown . . . make out a violation of a

constitutional right. Second, if the

plaintiff has satisfied this first step, the

court must decide whether the right at

issue was “clearly established” at the

time of defendant’s alleged misconduct.

Pearson, 555 U.S. at 232 (quoting Saucier v. Katz, 533

U.S. 194, 201 (2001)). 8

The clearly established analysis focuses on

“settled law;” as a result, the right at issue may be

clearly established by “controlling authority” or “a

robust consensus of cases of persuasive authority.”

District of Columbia v. Wesby, __ U.S. __, 138 S. Ct.

577, 589-90 (2018) (internal quotation marks and

citations omitted). This Court has required that a

right be “sufficiently clear that every ‘reasonable

official would [have understood] that what [the

8 Sometimes courts bypass the constitutional question and decide

cases at the second step, holding that even if a constitutional

right was violated, it was not “clearly established.” While this

Court permits that approach, it has also cautioned that declining

to decide the constitutional question has serious drawbacks: It

leaves important constitutional questions undecided, thereby

failing to advance the development of the law, and it enables

officials to persist in potentially unlawful behavior because they

know they will not be held liable. Camreta v. Greene, 563 U.S.

692, 705-06 (2011). In Camreta, the Court explained that

avoiding the constitutional question “sometimes does not fit the

qualified immunity situation because it threatens to leave

standards of official conduct permanently in limbo.” Id. at 706.

Indeed, “[q]ualified immunity thus may frustrate ‘the

development of constitutional precedent’ and the promotion of

law-abiding behavior.” Id. (quoting Pearson, 555 U.S. at 237).

31

official] is doing violates that right.’” Ashcroft v. alKidd, 563 U.S. 731, 741 (2011) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). “We do not

require a case directly on point, but existing precedent

must have placed the statutory or constitutional

question beyond debate.” Ashcroft, 563 U.S. at 741.

Goss squarely held that students have

Fourteenth Amendment liberty and property interests

at stake when confronting suspension and expulsion

proceedings. Although Goss concerned high school

students, not higher-education students, its reliance

on the “landmark decision” of Dixon—which did

concern a university student—would have put

reasonable university administrators on notice that

they could not suspend a student for 14 months

without giving him or her a hearing to challenge the

evidence against them. This Court has never

backtracked on Goss’s holding that students have

constitutionally protected interests implicated by

suspension and expulsion proceedings and, as

described above, Goss has long been relied on by the

lower courts for exactly that holding. There is thus a

robust consensus on this issue and Respondents are

not entitled to qualified immunity.

E.

The Ninth Circuit’s decision is wrong.

The Ninth Circuit erred in concluding that Doe

had neither a protected liberty interest, nor a

protected property interest, at stake in her 14-month

suspension.

32

1. To begin with, the court’s reliance on the

stigma-plus test for assessing whether Doe adequately

alleged a liberty interest was wrong. Although this

Court assumed, without deciding, the existence of

some type of protected interest in both Horowitz and

Ewing, in neither case did it suggest the stigma-plus

test might apply. Indeed, neither case even cited Paul.

Moreover, Paul’s stigma-plus test did not arise

out of a university disciplinary case, but out of an

entirely different set of facts. The plaintiff in Paul was

publicly branded a shoplifter by police department

flyers, but he did not suffer any loss of employment or

any other tangible detriments.

This gets to the next problem with the Ninth

Circuit’s use of the stigma-plus test: It is

fundamentally unsuitable in the context of claims

arising out of university disciplinary proceedings.

Suspensions and expulsions by definition have farreaching consequences for the trajectory of students’

lives and the choices and experiences available to

them. As Goss explained, suspensions can “seriously

damage the students’ standing with their fellow pupils

and their teachers as well as interfere with later

opportunities for higher education and employment.”

419 U.S. at 575. In the same vein, the Department of

Education recently recognized that “the way in which

a school, college, or university responds to allegations

of sexual harassment in an education program or

activity has serious consequences for the equal

educational access” of the accused (and the accuser).

33

Nondiscrimination on the Basis of Sex in Education

Programs or Activities Receiving Federal Financial

Assistance, 85 Fed. Reg. 30026, 30030 (May 19, 2020).

There are “life-altering consequences that may follow

a determination regarding responsibility for such

conduct.” Id. at 30049. 9 Students who suffer a

suspension or expulsion may see their education

ended abruptly and their career plans derailed. Even

if they ultimately complete their degree programs, the

suspension or expulsion may follow them far into the

future, as notations on official transcripts, as gaps in

their university careers that need to be explained, and

in the loss of valuable professional connections and

training opportunities.

The stigma-plus test is perhaps most frequently

applied in the public-employment context, where

plaintiffs allege they have been terminated or

otherwise denied public employment. 10 Subjecting

plaintiffs in that setting to a higher standard of

pleading and proof is fundamentally different from

subjecting suspended or expelled university students

to it. The former can presumably find other jobs, but

university students may not be able to enroll in other

degree programs and may be prevented from pursuing

9 These statements were made in the context of the new Title IX

regulations, but extend beyond Title IX and sexual harassment.

10 “Stigma-plus claims often arise in the public-employment

context where, for example, an employer is alleged to have made

defamatory statements in connection with firing the plaintiff.”

Schultz v. Incorporated Village of Bellport, No. 08-CV-0930-JFBETB, 2010 WL 3924751, at *9 (E.D.N.Y., Sept. 30, 2010), aff'd,

479 F. Appx. 358 (2d Cir. 2012).

34

their chosen career paths. Because of the formative

role colleges and universities play in students’ lives—

setting the stage for their educational, professional,

financial, and personal opportunities far into the

future—students naturally have a liberty interest in

university disciplinary proceedings worthy of

constitutional protection. Those Circuits that

recognize an inherent liberty interest have adopted

the correct rule. The stigma-plus test has no place in

this particular context and should be rejected.

2. Even if the stigma-plus test governs,

however, the Ninth Circuit misapplied it and opened

a rift with the Seventh Circuit by holding that Doe’s

14-month suspension did not constitute a change to

her legal status (the “plus” element of the stigma-plus

test). See Purdue, 928 F.3d at 662 (holding that yearlong suspension constituted a change in legal status

sufficient to satisfy the “plus” element). Going from a

student in good standing to one who is expelled or

suspended necessarily amounts to a change in legal

status, and a potentially grievous one at that. During

Doe’s suspension—which spanned the entire second

year of her master’s program—she was prevented

from continuing her studies, prevented from

transferring to another graduate program, and

prevented from pursuing her career plans. Naturally,

the prolonged investigation—one in which she was

falsely accused of sexually harassing lewd behavior—

was damaging not least because it froze her in place,

unable to move forward or move on.

35

In addition, the Ninth Circuit and the other

stigma-plus Circuits are wrong to demand a

showing—as a predicate to establishing the “stigma”

element of the test—that the university has publicly

disclosed the plaintiff’s misconduct. Disclosure by a

party other than the plaintiff may make sense in the

employment context—where the stigma-plus test is

mainly applied—because without disclosure of the

reasons for a discharge decision, an employee may not

suffer any harm to his or her reputation and his or her

future employment prospects may not be

jeopardized. 11 In the university disciplinary context,

however, suspensions and expulsions inflict

reputational harm regardless of whether the

university publicly discloses the misconduct leading to

them. The mere fact of a suspension or expulsion may

prove fatal to a student’s career or educational plans

in a way that the mere fact of losing a job does not.

Moreover, enforcing a publication requirement

would insulate college and university administrators

from liability so long as they do not disclose the

charges against accused students. Students could find

themselves suspended or expelled based on sham

procedures, yet be entirely foreclosed from challenging

the deprivation of their liberty interests in a court of

law. Universities would be privileged to commit the

greater sin of suspending or expelling students

through fundamentally unfair processes, so long as

11 The origin of the public-disclosure requirement is this Court’s

decision in Bishop v. Wood, 426 U.S. 341, 348 (1976), an

employment case, not a case concerning education.

36

they do not commit the lesser sin of revealing the

students’ misconduct to third parties. Such a rule has

nothing to recommend it. 12

3. The Ninth Circuit also erred in holding state

law must conclusively provide for a property right in

higher education to trigger the Due Process Clause. In

Perry v. Sinderman, 408 U.S. 593, 601-02 (1972), this

Court held that it is not just state laws or contracts

that may provide a basis for a protected property

interest—mutual understandings may do so as well.

Sinderman taught in the Texas state college system

under one-year contracts that were renewed annually

between 1959 and 1969. Id. at 594. When he became

involved in some public disputes with the Board of

Regents, his contract was not renewed. Id. at 595. This

Court held that Sinderman, “who has held his position

for a number of years, might be able to show from the

circumstances of this service—and from other relevant

facts—that he has a legitimate claim of entitlement to

job tenure” under an implied contract or de facto

tenure program. Id. at 602.

12 In Horowitz, 435 U.S. at 85, the University of Missouri asked

this Court to hold that it had not violated the student’s liberty

interest because it did not publicly reveal the reasons for her

dismissal. Indeed, this was one of the questions on which this

Court granted certiorari. The Court, however, declined to delve

into this issue and instead held that even if the student had a

protected liberty interest, she received all the process she was

due. Id. at 84-85. Thus, in Horowitz, the applicability of the

stigma-plus test to university disciplinary proceedings was

squarely presented, but this Court did not adopt it.

37

The same kind of reasoning applies here. The

relationship between students and their universities

creates a mutual understanding that bestows on

students a property interest in their continued

enrollment. They agree to pay tuition, complete a

certain number of credits, maintain a minimum gradepoint average, and comply with specified rules of

conduct, and in exchange, their universities agree to

award them their degrees. See Tamara Rice Lave,

Ready, Fire, Aim: How Universities Are Failing the

Constitution in Sexual Assault Cases, 48 Ariz. St. L.J.

637, 666 (2016); Curtis L. Berger & Vivian Berger,

Academic Discipline: A Guide to Fair Process for the

University Student, 99 Colum. L. Rev. 289, 292 (1999)

(“The contract, formed when an accepted student

registers, arises from the mutual understanding that

the student who satisfactorily completes a program’s

academic requirements will receive the appropriate

degree.”). The recognition by the First and Sixth

Circuits of an inherent property interest in university

enrollment comports with this reasoning (and that of

Sinderman) and should be endorsed by this Court.

F.

The questions presented are important,

arise repeatedly, and are squarely raised

in this case.

The division among the lower courts on what

plaintiffs must allege to establish a protected liberty

or property interest and thereby obtain the procedural

protections of the Due Process Clause has become

increasingly problematic. More and more students are

38

challenging the fundamental fairness of university

disciplinary proceedings through section 1983 cases in

federal court. As one district court recently observed,

there has been a “wave” of litigation about this issue

as colleges and universities “devote more attention to

sexual assault accusations.” Doe v. Univ. of Colorado,

255 F. Supp.3d 1064, 1067 (D.Colo. 2017). Cases

involving suspensions or expulsions for sexual

misconduct, like this case, are among the most

common. As the district court in Doe’s case made clear,

guidance is needed. Pet. App. 37 n.13.

Unless this Court clarifies the law, the lower

courts will continue to take significantly different

approaches which, in turn, will yield different

outcomes for litigants on similar facts. For instance,

had Doe’s case been before the First, Fifth, or Sixth

Circuits, those courts would not have questioned that

she had a protected liberty or property interest at

stake and they would have gone on to consider the

issue that neither the district court nor the Ninth

Circuit reached here—whether Sonoma State’s

conduct met the constitutional minimum when it

suspended her for 14 months without any hearing.

Although the amount and kind of process Doe was

entitled to is not at issue here, at least one court (the

First Circuit) would have held that her prolonged

suspension did not meet the fundamental fairness

mandated by the Due Process Clause. 13

13 In Haidak, 933 F.3d at 72, the First Circuit held that a five-

month suspension without a hearing violated the Due Process

39

But of course, before they can consider the

constitutional adequacy of the disciplinary procedures

at issue, courts must first confirm that a constitutional

right to liberty or property is implicated. Setting the

bar too high on that question—as the Circuits

employing the stigma-plus test do—disregards the

reality of the profoundly influential role colleges and

universities play in shaping students’ life trajectories,

and it risks leaving students vulnerable to deeply

unfair university disciplinary procedures.

Finally, this case is an excellent vehicle for

answering the questions presented. The issues were

fully presented below. The case was dismissed at the

pleading stage so there are no factual disputes or

procedural wrinkles that would prevent a decision

here from having broad applicability. And this case

presents one of the most common fact patterns

occurring in this area—a student accused of sexual

misconduct who alleges the denial of due process.

This Court should grant certiorari to ensure

uniform interpretation of the Due Process Clause on

an important issue that that has divided the lower

Clause even though the plaintiff had an opportunity to, and did,

respond orally and in writing to the suspension. The court

concluded that “[w]hen a state university faces no real exigency

and certainly when it seeks to continue a suspension for a lengthy

period, due process requires ‘something more than an informal

interview with an administrative authority of the college.’” Id.

(quoting Gorman, 837 F.2d at 14). Here, Doe had nothing but an

informal meeting with former Title IX Coordinator Suzuki. She

was never afforded any hearing.

40

courts and that promises to recur with increasing

frequency.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DANIEL CHARLES ROTH

LAW OFFICE OF DAN ROTH

803 Hearst Avenue

Berkeley, CA 94710

JOSHUA ADAM ENGEL

ENGEL AND MARTIN, LLC

4660 Duke Drive

Suite 101

Mason, OH 45040

LARA BAZELON

2130 Fulton Street

Kendrick Hall Suite 211

San Francisco, CA 94117

ALLISON L. EHLERT

Counsel of Record

EHLERT HICKS LLP

2001 Addison Street

Suite 300

Berkeley, CA 94704

(510) 833-7339

aehlert@ehlerthicks.com

JOCELYN SPERLING

LAW OFFICE OF JOCELYN SPERLING

2342 Shattuck Avenue

Suite 121

Berkeley, CA 94704

Counsel for Petitioner