Court: District Court, E.D. Pennsylvania; August 3, 2012; Federal District Court
The legal memorandum addresses a suit resulting from the expulsion of Kevin Furey from Temple University, asserting violations of his Fourteenth Amendment procedural due process rights. The Court conducted a bench trial from March 26 to April 5, 2012, with closing arguments presented on June 21, 2012. It found in favor of Furey on his procedural due process claim but granted qualified immunity to individual defendants.
The procedural history outlines that Furey filed a complaint and a motion for preliminary injunction on June 2, 2009, after his May 2009 expulsion. He claimed violations of Due Process, Equal Protection rights, breach of contract, and retaliation, seeking reinstatement and record expungement. Following unsuccessful settlement discussions, the Court denied the defendants’ motion to dismiss and allowed an expedited discovery schedule. After discovery, the defendants sought summary judgment, which resulted in partial favor for them; however, the procedural due process claim remained.
The findings of fact reveal that Furey was a full-time student at Temple University during the spring semester of 2008, prior to his expulsion on May 27, 2009. The memorandum details the structure of the findings, including specific incidents, disciplinary charges, hearing processes, and subsequent appeals, along with the Court's conclusions on due process requirements and the overall fairness of the disciplinary proceedings.
Temple University, a public institution within the Commonwealth education system, has several key defendants involved in student conduct matters. Andrea Seiss serves as the Associate Dean of Students and University Code Administrator; Brian Foley is the Vice Code Administrator; Valerie Harrison is the Associate University Counsel; Richard Greenstein is a Professor of Law and chair of the University Disciplinary Committee; Keith Gumery is a professor and vice chair of the Disciplinary Committee; Diane Adler is a retired Nursing Professor; Theresa Powell is the Vice President for Student Affairs; and Ainsley Carry is the Associate Vice President and Dean of Student Affairs.
Student conduct is regulated by the Student Code of Conduct, which applies to both on-campus and certain off-campus behaviors that threaten the safety or well-being of the university community. The Code outlines prohibited activities and possible sanctions, including expulsion. The University Code Administrator manages the judicial system, determining if students should be charged with violations and informing them of the charges, witnesses, and evidence.
A Pre-Hearing Meeting is scheduled within five days of charging a student, allowing informal discussion of the charges and procedures, where students may attend with an advisor. Students can accept responsibility or proceed to a hearing, with complex cases referred to the University Disciplinary Committee's Full Panel, consisting of faculty and student members.
Hearings are non-adversarial and fact-finding, with a burden of proof on the university to demonstrate a violation under a "more likely than not" standard. Accused students can present their defense, including testimony and evidence, and can question witnesses through the Chairperson. A Full Panel hearing is expected to occur within thirty business days of the Pre-Hearing Meeting, subject to extensions at the Code Administrator’s discretion.
Students wishing to present Temple community witnesses at a hearing can request the Code Administrator's office to issue appearance notices. If new evidence arises during the hearing that was not included in the original notice, students may respond to it. Students are allowed to have an advisor or attorney, who may assist but cannot actively participate in questioning or addressing the panel. The charged student is not obligated to testify, and no negative inference can be drawn from their silence. Hearings are closed to the public, with select university officials allowed to attend as observers.
The hearing panel decides on violations by majority vote and recommends sanctions, with faculty or administration able to suggest sanctions. In cases of recommended expulsion, students may appeal to the Review Board within three days on specific grounds, including new evidence or procedural defects. The Review Board consists of two students, two faculty members, and one administrator. It can recommend modified sanctions or new hearings based on its findings.
The Review Board's recommendations are directed to the Vice President for Student Affairs, who must consider them with presumptive weight when making the final decision on responsibility and sanctions. The Code does not allow for further review post-decision, but if new information comes to light after the appeals process, it may be brought to the Dean of Students Office for potential reevaluation.
The excerpt also details an incident on April 5, 2008, where the plaintiff was arrested after an encounter with an off-duty police officer and subsequently charged with aggravated assault, leading to a preliminary hearing on April 15, 2008, where the officer provided testimony.
Judge Moore postponed the case, and on November 24, 2008, the plaintiff agreed to enter an Accelerated Rehabilitative Disposition (ARD) Program instead of proceeding with prosecution. At the hearing, the plaintiff expressed his understanding of the proposed ARD terms, which included an admission of Wolfe's testimony and an apology, believing these could be renegotiated later. The plaintiff officially entered the ARD program on June 10, 2009, during a hearing with a different judge, but the terms discussed previously were not included in the final ARD agreement.
Subsequently, the Temple University Code Administrator, Seiss, received a report detailing an incident on April 5, 2008, involving Temple student Kevin Furey and Philadelphia Police Officer Travis Wolfe. The report described a struggle where Wolfe, after identifying himself, restrained Furey, who had brandished a machete. This incident was deemed to fall within the University’s jurisdiction due to its proximity to campus and potential threat to safety.
On April 10, 2008, the Code Administrator notified the plaintiff via email of disciplinary action, attaching a "Charge Notice" citing three violations of the Temple University Student Code of Conduct. The charges included intimidation or violence towards another person, possession of dangerous items (specifically mentioning firearms and related weapons), and engaging in disorderly conduct. The Charge Notice outlined the relevant sections of the Student Code of Conduct and provided a link for the plaintiff to access the full code online.
The Charge Notice included a copy of the relevant paragraph from Finding of Fact 41, which formed the basis for the charges against the plaintiff. It instructed the plaintiff to arrange a Pre-Hearing Meeting with the University Code Administrator within five days. The plaintiff forwarded this notice to his mother, Margaret Boyce Furey, Esq., who acted as his attorney. In her response dated April 16, 2008, she detailed the plaintiff's account of the incident and requested a Pre-Hearing Meeting after May 5, 2008. Due to the letter being from an attorney, Seiss forwarded it to University Counsel Harrison. No further actions were taken until fall 2008, during which time the plaintiff was not enrolled in courses, prompting a hold on his student account. This hold was lifted when he attempted to register for fall classes, allowing the parties to schedule a hearing.
Throughout fall 2008 and spring 2009, efforts were made by Boyce Furey, Seiss, and Harrison to schedule the Pre-Hearing Meeting and the Hearing, culminating in a Pre-Hearing Meeting on December 15, 2008. Boyce Furey requested details about the charges, evidence, disciplinary procedures, and the Code of Conduct, which had initially been provided to the plaintiff but not re-sent to her. She also requested the attendance of Temple police officers involved in the incident. Seiss provided a list of witnesses, including all officers present on April 5. Boyce Furey sought contact information for individuals accompanying Officer Wolfe, which Seiss obtained from the Temple Police and shared their names, but not contact details, with Boyce Furey and the plaintiff.
The Hearing date was rescheduled multiple times due to various requests, concluding with a scheduled Hearing on March 25, 2009, before a Full Panel chaired by Professor Greenstein. Boyce Furey communicated with University officials, including sending letters to Greenstein, who was aware of the attorney's involvement and the continuances in scheduling the Hearing.
Brian Foley became the Code Administrator for the plaintiff's case shortly before the Hearing. Neither he nor Seiss discussed the case with any Panel members, including Greenstein. Foley notified Temple students Segars and Anderson about the Hearing via email, but neither responded. Seiss had previously informed them about an earlier hearing, to which Segars expressed a desire not to participate. Foley communicated with Robinson by phone, who stated he could not attend due to police academy obligations. He also contacted Woltemate regarding the attendance of police officers for the Hearing scheduled on March 25, 2009. The day prior, Woltemate indicated that two officers would be absent due to illness and family commitments, but the plaintiff was not informed of these absences before the Hearing.
The Hearing took place at Temple University with a Panel comprising three professors and two students, chaired by Professor Greenstein. The plaintiff attended with his parents, who acted as advisors, while Seiss and Harrison were present as observers. Temple University presented witnesses from the Philadelphia Police Department, and the plaintiff brought forward his own witnesses and submitted exhibits. The Hearing was transcribed at the plaintiff's request.
At the beginning of the Hearing, Foley inquired if any Panel member felt unable to be impartial; all affirmed their capability. Panel members are trained to disclose any recognition of participants to evaluate their impartiality. Prior to the Hearing, the Panel members had no prior knowledge of the case. They were given a one-page "Hearing Summary" detailing the Hearing's logistics and alleged Code violations, but it did not include the witnesses requested by the plaintiff.
The Hearing Summary contained a "Specifications" section, identical to that in the Charge Notice. Greenstein clarified that the "Specifications" were meant to outline the hearing's focus, not to serve as evidence. The plaintiff received this summary at the hearing's start but could not present his account until after University witnesses testified, as no opening statements were made.
Several witnesses, including Officers Binder and Harvey, did not attend the hearing. The plaintiff requested a continuance to allow their presence but was informed by Greenstein that the hearing would proceed, though he could describe what he believed the absent witnesses would have contributed. The decision to continue a hearing lies with the Code Administrator, and once it begins, the Chair lacks authority to grant a postponement.
Notices sent to the absent witnesses warned that failure to attend could lead to a Code violation charge, but typically, violations are charged only for the absence of a complaining witness or the accused. After consultation, it was decided not to charge the absent students. The Code Administrator lacks the power to enforce witness attendance beyond the threat of sanctions.
Wolfe, the first witness, testified that he saw the plaintiff yelling and retrieving what he suspected was a weapon. Wolfe, concerned for public safety, confronted the plaintiff, who brandished a machete and charged at Wolfe's car. Wolfe identified himself as a police officer and ordered the plaintiff to drop the weapon, which he eventually did after several requests. Wolfe described a struggle to restrain the plaintiff, who appeared intoxicated. Following his narrative, Wolfe answered further questions from the Panel.
The Chair inquired if the plaintiff had questions for Wolfe, leading the plaintiff to propose several questions. The Chair relayed many of these inquiries, though Greenstein required the plaintiff to clarify the relevance of some before proceeding. Certain questions were not posed, including those regarding the plaintiff's companions on April 5, discrepancies in the police report versus his testimony, a paper he authored, inconsistencies with prior statements, Wolfe's probation status, and his attendance at parties with university students.
To highlight inconsistencies in Wolfe's account, the plaintiff submitted a transcript of Wolfe’s testimony from an earlier hearing and a police report. The Panel took breaks to copy and review the transcript, which were not due to Wolfe's inability to answer questions. During a break, Wolfe made a phone call and subsequently read a statement asserting the consistency of his past testimonies and claiming exoneration from wrongdoing by an internal affairs investigation. He mentioned that the plaintiff had acknowledged his actions were wrong and had apologized in court, while also accusing the plaintiff and his attorney of undermining the proceedings with frivolous allegations.
The plaintiff objected to Wolfe's statement, noting Wolfe's phone call beforehand, and requested Greenstein to investigate the call's recipient, which Greenstein deemed irrelevant. Additionally, the University presented testimonies from Officer Crawford and Sergeant McGuire, who arrived after the plaintiff was handcuffed. They reported that the plaintiff was shouting obscenities and resisting arrest, with Crawford observing a machete near the plaintiff's vehicle and McGuire noting the plaintiff appeared intoxicated.
At the hearing's outset, Greenstein clarified to the plaintiff that he could testify but was not obligated to do so, and the plaintiff chose to testify on his own behalf.
On April 4, 2008, the plaintiff attended a party with friends and later went to Jon Fischer's house, where they watched television. At approximately 3:00 a.m. on April 5, Fischer realized he had locked his keys inside his bedroom. The plaintiff went to his car to retrieve a machete for assistance. While at his car, he was approached by five individuals, one of whom, Wolfe, drew a gun and claimed to be a cop without showing a badge. The plaintiff believed he was being mugged, and as others urged Wolfe to shoot him, he dropped the machete. Wolfe then tackled the plaintiff, and he was subsequently kicked by others, losing consciousness upon hitting the pavement. Temple police officers arrived, handcuffed the plaintiff, and injured his knees when dropping him. He was taken to the 22nd District and later to Hahnemann Hospital for treatment.
During questioning by the Panel, Greenstein did not question the credibility of the Philadelphia police officer involved. He sought to understand Wolfe’s motivations for the attack. Kenyatta was instructed to allow the plaintiff to finish his answers. Adler inquired about the plaintiff's alcohol consumption and noted that hospital records indicated a positive alcohol detection, meaning the staff smelled alcohol. Adler clarified that "positive ETOH" referred to a "nose test" rather than indicating intoxication. When the plaintiff contested the alcohol detection, he suggested that conspiracies could explain the discrepancies. Additionally, during a break, Furey overheard Adler express frustration about the duration of the proceedings.
Gumery interrogated the plaintiff regarding his assertion of encountering a "gang" on April 5. The plaintiff defined a gang as a group of criminals sharing allegiance and mindset, distinguishing it from casual groups of friends. Boyce Furey objected to the line of questioning as argumentative, prompting Gumery to dismiss her comment. At the Hearing's conclusion, Greenstein inquired about the expected testimony from absent witnesses, to which the plaintiff expressed a desire for testimony from Colin Anderson and others allegedly in a car during the incident.
During the exchange, Gumery interrupted, leading to a clarification regarding the alleged presence of individuals in the car, which Furey attempted to explain. Professor Greenstein again asked the plaintiff about the absent witnesses, and the plaintiff indicated he aimed to establish their character.
Three Temple students testified for the plaintiff; however, none were present during the incident on Monument Street. George Furey supported his son's claim that a machete was a gardening tool, providing photographic evidence of its use at home and social media exhibits showing Wolfe in casual settings.
At the Hearing's outset, the plaintiff introduced his advisors, with Foley clarifying their role was limited to advising without direct questioning. Boyce Furey frequently addressed the Panel, objecting to decisions and questioning the plaintiff, despite being instructed to allow him to speak for himself. The Panel noted that the plaintiff's discussions with his advisors were too loud and distracting. Panel deliberations proceeded in two phases: determining responsibility and considering sanctions.
Foley participated in the Panel's deliberations but did not vote. At the beginning of the sanctions deliberation, Foley instructed the Panel to focus on the evidence presented rather than the hearing's conduct. The Panel unanimously concluded that the plaintiff had likely violated the Code of Conduct. During sanctions deliberation, the Panel decided to consider the plaintiff's demeanor at the hearing. Foley noted that past violations involving weapons and police conflicts typically resulted in expulsion. Consequently, the Panel unanimously recommended immediate expulsion. Wolfe was present when this decision was announced, and deliberations lasted approximately thirty minutes in total.
Following the hearing, the plaintiff submitted a rebuttal and appeal with twenty-seven grounds for contesting the decision, including a report from Dr. Alfred Sacchetti indicating no alcohol use prior to a hospital visit and a Facebook screen capture showing a friendship between two individuals. These materials were sent to the Review Board, which independently reviewed the appeal and the hearing audio. The Review Board found no grounds for appeal on twenty-four of the twenty-seven points but identified three valid concerns: insufficient evidence against Kevin Furey for intimidation, the sanction being disproportionate, and a procedural defect related to a hearing panel member being friends with a key witness. They recommended suspension instead of expulsion and suggested further investigation into the procedural issue without calling for a new hearing. The Review Panel communicated these recommendations to Foley, who then investigated the Facebook friendship by meeting with Kenyatta.
Kenyatta revealed to Foley in a brief meeting that he was unaware of his Facebook friendship with Wolfe and did not know him personally. At the time of the hearing, Kenyatta had over a thousand Facebook friends and used the platform to promote events at Temple. Carry, appointed by Powell to review disciplinary appeals, first learned of the incident on April 5, 2008, through a report from campus safety and remained updated throughout the disciplinary process. Foley compiled the Review Panel’s recommendations and relevant documents, which were shared with Powell and Carry. Foley and Carry met to discuss the case but Foley did not provide a recommendation on the resolution. In April 2009, Carry met with Doug Segars, a student present during the incident, for roughly twenty to thirty minutes to hear his account. Following his discussions with Foley, Carry reviewed the case file and listened to the Hearing’s audio recording. He carefully considered the recommendations from both the Hearing Panel and Review Board, without giving presumptive weight to the latter. Carry concluded that sufficient evidence existed to support a finding of assault due to the altercation, the presence of a weapon, and resistance to arrest. He also factored in Wolfe's role as a police officer, and despite the specification paragraph being non-evidential at the Hearing, Carry used it in his decision-making. He noted that the University historically expelled students involved in similar incidents. Consequently, Carry recommended to Powell that the Hearing Panel's decision to expel the plaintiff be upheld. Powell did not engage with Foley or review any materials related to the case.
Powell did not listen to the audio recording of the Hearing and relied on Carry’s review and recommendation for her decision. Following their discussion, Carry directed the preparation of a letter for Powell's signature. On May 27, 2009, Powell sent a letter to the plaintiff, upholding the Hearing Panel's decision and imposing immediate expulsion. Subsequently, on June 9, 2009, Boyce Furey requested reconsideration of Powell’s decision, presenting new information about an ongoing police investigation concerning Wolfe's conduct that night. However, Powell did not read this letter; it was forwarded to the University General Counsel's office and referred to outside counsel due to ongoing litigation.
Five absent witnesses provided accounts of the incident to police and during discovery. Steve Robinson, who accompanied Wolfe, reported seeing the plaintiff waving a machete, claiming Wolfe identified himself as a police officer and attempted an arrest after the plaintiff dropped the weapon. Douglas Segars, who had called Wolfe for a ride, witnessed the plaintiff holding a machete and saw the subsequent struggle between Wolfe and the plaintiff. Colin Anderson, also in Wolfe's car, observed Wolfe draw his gun and order the plaintiff to drop the object, later identified as a machete, during the confrontation. Anderson did not recall the plaintiff approaching Wolfe or yelling during the incident.
Officer Binder, while patrolling Monument Street, witnessed two men fighting, with one man on the ground and the other on top. Upon approaching, the man on top identified himself as an off-duty police officer. Binder assisted in restraining the plaintiff and provided handcuffs to another officer, Wolfe. After the plaintiff was detained, he refused to enter Binder's vehicle. Binder noted signs of intoxication in the plaintiff, including the smell of alcohol, slurred speech, and bloodshot eyes, along with minor injuries, including an abrasion on the forehead and a mark below the left eye. Binder transported the plaintiff to Central Detective, where he was informed that a medical check was necessary before processing, leading to a trip to Hahnemann Hospital before returning to Central Detective around 7 a.m.
Officer Harvey arrived in response to Binder's report and found the plaintiff in handcuffs. He recognized Wolfe nearby and noted the plaintiff exhibited signs of intoxication as well. Harvey had previously been to Monument Street due to noise complaints at a party and had seen Wolfe's vehicle parked there.
Following the initiation of litigation, the plaintiff discovered a photograph of two individuals, Kenyatta and Segars, on Facebook, taken after a talent show organized by Segars, in which Kenyatta participated. Kenyatta did not know Segars at the time the photo was taken or prior to the hearing.
The legal conclusions state that the plaintiff, a student at a state-funded school, is entitled to procedural due process in disciplinary actions. The determination of what constitutes due process involves assessing the nature of the interests affected and the circumstances surrounding the deprivation. Citing *Goss v. Lopez*, the excerpt explains that a minimum due process requirement includes notice of the charges and an opportunity for a hearing appropriate to the case, ensuring fundamental fairness.
The Court ruled against requiring formal disciplinary procedures for academic institutions due to limited administrative resources, emphasizing that such requirements would distract from the educational mission and hinder the effectiveness of the discipline process. In cases of short suspensions, hearings could be conducted soon after notice, without the necessity of legal counsel, cross-examination of witnesses, or the ability to present witnesses. Instead, due process was satisfied by an informal exchange where the student could explain their actions.
In Palmer v. Merluzzi, the Third Circuit evaluated whether a student facing a sixty-day athletic suspension, in addition to a ten-day academic suspension, was entitled to more procedural protections. The student was informed of the accusations and evidence against him during an informal hearing but argued he should have been warned about the potential athletic suspension. The court applied the balancing factors from Mathews v. Eldridge: the private interests of the student, the governmental interests in maintaining order with limited resources, and the fairness of existing procedures. The court concluded that additional procedures would impose unnecessary costs and disruptions without significantly improving fairness. It determined that the student should have been aware of the potential for an athletic suspension and found the existing process adequate, as he had the opportunity to present his case informally.
The Court of Appeals for the Third Circuit, in Sill v. Pennsylvania State University, established that due process in disciplinary proceedings is satisfied through notice and the opportunity to be heard by an impartial tribunal, without a right to a specific panel. In evaluating the plaintiff’s claim of procedural due process violation, the Court emphasizes the significance of the plaintiff's private interests, including the serious ramifications of expulsion on educational access, reputation, and future career prospects. This aligns with the Supreme Court's recognition in Goss that more formal procedures may be warranted for severe sanctions like expulsion.
The defendants, Temple University, have interests in maintaining campus safety and effectively utilizing resources for their educational mission. The plaintiff alleges multiple due process violations, categorized as: 1) a facial challenge to the Code’s jurisdiction; 2) deviations from the Code of Conduct; 3) inadequate notice; 4) lack of rights to remain silent, counsel, and cross-examination; 5) absence of witnesses and alleged perjury; 6) bias and impartiality; and 7) general fairness issues in the hearing process.
The Court reviews each claim in the context of existing procedural safeguards and considers the overall disciplinary process. Regarding the facial challenge to Temple's jurisdiction, the Court finds no constitutional violation, asserting that the University is entitled to exercise jurisdiction over off-campus behavior, supported by precedent from Kusnir v. Leach, which upheld a student's suspension for off-campus activities.
A college has a legitimate interest in the behavior of its students, viewing off-campus actions as indicative of a student's character and suitability for the student body. Pennsylvania law grants campus police jurisdiction over college grounds and within 500 yards of them. The plaintiff contends he was unaware of this 500-yard boundary or the associated jurisdiction. Educational institutions are not held to the same clarity standards as criminal statutes regarding codes of conduct, allowing Temple University to discipline students for off-campus behavior. The court determined that the events in question occurred within the 500-yard jurisdiction and involved the safety of the university community, thus validating Temple's jurisdiction.
The plaintiff claims he was denied due process due to Temple's failure to adhere to its Code of Conduct, specifically regarding delays in holding required Pre-Hearing and Hearing meetings and allowing certain individuals to attend a closed Hearing. He argues that a procedural violation occurred when a panel member and witness were Facebook friends, yet the Review Board did not recommend a new hearing. However, minor deviations that do not undermine fundamental fairness do not constitute due process violations. The court found that these individual claims did not compromise the reliability or fairness of the disciplinary process.
Delays in meetings were authorized by the Code Administrator and often requested by the plaintiff. The plaintiff failed to demonstrate any prejudice from these delays. The attendance of Seiss and Harrison, who were involved in the case, was justified due to their roles at the university, although their presence contributed to a confrontational atmosphere. Wolfe's attendance during the announcement of the Panel's decisions, despite not being necessary, also did not amount to a due process violation, even though it suggested a potential bias due to his prior testimony.
The Panel's treatment of Wolfe during the Hearing is scrutinized, but the Court finds no constitutional violation despite the Review Board's failure to recommend a new hearing for procedural violations. The relationship between Kenyatta and Wolfe, characterized by being Facebook "friends," does not constitute a procedural defect. The plaintiff argues he did not receive adequate notice of the charges, potential sanctions, or witness statements, claiming this hindered his defense against additional allegations, such as intoxication. However, the Court determines that Temple provided sufficient notice, fulfilling due process requirements. Citing precedent, the Court explains that while formal written notice may be necessary in cases with stronger private interests, oral notice can suffice in less severe situations. In this case, the plaintiff was informed of the charges and the police referral in the Charge Notice and Hearing Summary, and he had the opportunity to discuss these with the Code Administrator before the Hearing. He was also given the names of the witnesses. The Court concludes that the notice allowed him a meaningful opportunity to prepare for his defense. Furthermore, the absence of witness statements does not impose an investigatory burden on the University, since the plaintiff was aware of the witness names and the basis for the charges, and the information about the incident was fully disclosed to him.
The Court determined that the administrative burden of requiring witness statements outweighs the potential benefits of reducing errors in the disciplinary process. The Charge Notice sent to the plaintiff outlined the charges and referenced the Temple Code of Conduct, which specifies that violations can lead to expulsion. The Third Circuit Court of Appeals has established that schools are not obligated to explicitly inform students of potential sanctions if these are clearly stated in other accessible materials. Given that the plaintiff was aware of the serious nature of the charges and the possible severe consequences, the Court concluded that due process did not mandate an explicit mention of expulsion in the Charge Notice.
Additionally, the Court found that the plaintiff's due process rights were not violated when testimony at the Hearing included information beyond what was summarized in the Charge Notice. The plaintiff faced no new charges and did not raise concerns during the Hearing about the additional information presented. He was given the opportunity to hear all testimony and to contextualize or counter it.
Regarding the right to remain silent, the Court ruled that the plaintiff was not denied due process, noting he was informed he could choose not to testify and did not raise this issue during the Hearing. The right to cross-examine witnesses is acknowledged as a due process requirement; however, the excerpt does not elaborate on the Court's findings regarding this aspect.
In Winnick, the Second Circuit determined that a student is not entitled to cross-examine a witness if the witness's testimony is not crucial to the case's outcome. However, the court acknowledged that if credibility were at issue, cross-examination might be necessary. The court concluded that due process was satisfied as the plaintiff could question witnesses through the Chair, which allowed for the exploration of credibility issues. Additionally, the Panel itself was able to question witnesses, further ensuring credibility was addressed. The court found that the potential benefits of direct cross-examination by the plaintiff or counsel were outweighed by the administrative burdens it would impose on the school.
Regarding the right to counsel, several courts have held that students facing disciplinary actions related to criminal charges may have the right to consult legal counsel during hearings. The First Circuit in Gabrilowitz ruled that due process necessitated allowing a student under criminal charges to receive counsel's advice. Similarly, the Seventh Circuit in Osteen recognized the need for consultation with counsel for students facing expulsion due to criminal charges. However, both courts limited this right to advisory roles and did not extend it to active representation, as allowing lawyers to cross-examine witnesses and fully participate would transform disciplinary proceedings into adversarial processes.
Counsel is required primarily to advise students about their Fifth Amendment rights during disciplinary hearings, rather than to actively participate in the proceedings. This is supported by case law, including Donohue, which emphasizes the advisory role of counsel. The plaintiff cites Coulter, a case where a preliminary injunction mandated active counsel participation, but this was stayed by the Third Circuit, and does not address prior cases on the matter. In the current case, the plaintiff had access to legal counsel before and during the hearing, but faced challenges due to the counsel's noncompliance with hearing procedures. Notably, the plaintiff did not raise concerns about his pending criminal charges or Fifth Amendment rights during the hearing. The court concludes that allowing active counsel representation would introduce unnecessary adversarial elements and complexity, thus agreeing with previous rulings that do not require such representation.
Regarding the absence of witnesses, the plaintiff claimed due process was violated when key witnesses, including police officers, did not attend the hearing, and he was not provided with their contact information to secure their presence. This omission is particularly significant given the credibility issues central to the charges of assault and weapon possession. The hearing primarily relied on the testimonies of the plaintiff and Wolfe, whose accounts significantly conflicted—Wolfe described the plaintiff as threatening, while the plaintiff disputed this characterization and questioned Wolfe's credibility.
None of the absent witness statements corroborated Wolfe’s account of events, specifically regarding a crowd of students, the plaintiff yelling at Wolfe’s car, or the plaintiff approaching Wolfe with a machete. A police officer had noted Wolfe’s car outside a party earlier that evening. Despite this testimony, the Panel could have chosen to believe Wolfe over the plaintiff. Witnesses did not support the plaintiff's claim of being approached and attacked by five men, including Wolfe, nor did they assert that Wolfe failed to identify himself as a police officer. Most witnesses described the plaintiff as appearing intoxicated, a claim he contested during the Hearing.
The Court noted that the dispute over the plaintiff’s intoxication and other credibility issues heightened the need for a fair tribunal, emphasizing the necessity of examining all witness testimonies for truthfulness. The Court did not find a due process violation regarding Temple's failure to provide the plaintiff with witness contact information since there is no discovery requirement in academic disciplinary proceedings. Under the Mathews test, the University’s interest in protecting student privacy and maintaining a non-adversarial process justified this approach. The Code Administrator contacted witnesses to attend the Hearing, but the plaintiff could not reach them, raising questions about the fairness of proceeding without their testimonies.
The absence of witnesses affected the Hearing's reliability and fairness, increasing the University's responsibility to provide a just process. The plaintiff argued that the Panel relied on Wolfe's potentially perjured testimony; however, there was no evidence that the Panel members were aware of any perjury. The plaintiff raised concerns about bias during the Hearing, citing the relationship between Kenyatta and Wolfe, remarks from Panel members, and the involvement of certain individuals in the process. The necessity for an impartial adjudicator is a key component of due process.
In disciplinary hearings, school administrators are presumed to be impartial, and the plaintiff must provide sufficient evidence to counter this presumption. Allegations of bias must be supported by more than speculation. The court determined that claims of partiality against panel members lacked evidentiary support. Specifically, there was no evidence that Kenyatta was biased due to a Facebook friendship with Wolfe or any relationship with Segars, as they did not know each other. Additionally, there was no indication that Greenstein favored police officers or that Adler's reference to the plaintiff testing positive for alcohol demonstrated bias, given that this information was sourced from the plaintiff's medical record.
The use of a Full Panel, the attendance of Seiss and Harrison, and Carry's knowledge of the case did not suggest bias. Seiss opted for a Full Panel due to the severity of the charges, and there was no evidence that this choice influenced the outcome.
However, the court expressed concerns about aspects of the hearing process that collectively indicated a failure to meet due process standards. These included the Hearing Summary provided to the Panel at the beginning, which was the only introduction to the case and did not allow the plaintiff to present his version of events until after university witnesses testified. The Panel's treatment of witnesses raised further issues, as Wolfe received considerable deference and was allowed to narrate events with minimal questioning, limiting the examination of relevant factors regarding his testimony.
Wolfe was allowed to make a prepared statement to the Panel, addressing his prior testimony, the plaintiff's statements at a criminal hearing, and details from a police internal affairs investigation that were not disclosed to others. Wolfe's account of the plaintiff's preliminary hearing was incomplete, as the terms of the plaintiff's ARD agreement were not finalized, and he was not exonerated of wrongdoing; Lt. Saggese indicated that Wolfe instigated the confrontation. In contrast, the Panel rigorously questioned the plaintiff, sometimes aggressively, focusing on his alcohol consumption that night and his perception of being approached by a "gang." This differential treatment may have hindered the plaintiff's ability to present his case effectively.
While the Panel did question Wolfe about his actions and drinking, the contrasting treatment between him and the plaintiff did not align with the Panel's role in administrative fact-finding. This disparity heightened the adversarial nature of the Hearing, suggesting that the plaintiff was disbelieved while Wolfe was favored. The Chair's management of Wolfe's cross-examination contributed to this confrontational atmosphere, further placing the plaintiff in an adversarial position. Although these issues may not individually constitute a due process violation, their cumulative effect compromised the overall fairness of the disciplinary process.
Regarding the appeal, while there are due process concerns surrounding the Hearing, the primary focus is on Carry's decision-making in the appeal process. The University provided an appeal, and Carry, as the Vice President's designee, was tasked with reviewing the differing recommendations from the Hearing Panel and the Review Board to make the final determination on responsibility and sanctions. The appeal process was not merely a review of the Panel's findings.
The ultimate decision on responsibility and sanctions rested with Carry, the Vice President’s designee, despite recommendations from both the Hearing Panel and the Review Board. Carry's review exhibited significant flaws. He met ex parte with Segars, an eyewitness to an incident involving the plaintiff, which constituted a potential due process violation as the plaintiff could not challenge Segars's account. This undermined the integrity of the decision-making process. Furthermore, Carry's assessment of the recommendations from the Review Board deviated from established procedural safeguards, as he failed to give them the presumptive weight required by the Code and could not adequately justify his rejection of their findings in favor of the Hearing Panel’s recommendations. Carry's rationale for expulsion appeared to be based on maintaining consistency with prior university practices, despite the specifics of the incident at hand being in question. Additionally, he seemed to accept Wolfe's testimony primarily due to Wolfe's status as a police officer, without substantiating the plaintiff's alleged wrongful behavior beyond the officer's response. Carry also improperly relied on the Specification in the Hearing Summary, which was not considered evidence during the Hearing.
Carry's deposition reveals that his review of the Hearing did not contradict the police report, indicating either an undue reliance on campus police or a misinterpretation of the evidence. This raises concerns about the final decision maker's failure to question the truthfulness of Wolfe’s account. Given the University’s policy mandating expulsion when a student, police officer, and weapon are involved, it is essential that the student has a fair opportunity to challenge the officer's account. It remains unclear if the plaintiff was afforded that opportunity in Carry’s review. Additionally, Carry did not examine all the exhibits submitted by the plaintiff during the Hearing.
Temple University’s disciplinary process ostensibly adheres to procedural due process, providing students with notice of charges, the chance to be heard, and the option for a full panel hearing. Impartiality is ensured through questioning of panel members and the possibility for students to have witnesses present. Students can challenge evidence and are allowed representation during hearings. Following serious sanctions, decisions can be appealed to a Review Board, which reassesses the evidence and fairness of the process before recommendations are made to the Vice President for Student Affairs.
Despite these procedures, the Court finds that, in Kevin Furey's case, the system failed to function as intended and did not meet due process requirements. The cumulative errors throughout the process and deviations from the Temple Code led to a violation of procedural due process.
Carry exhibited significant flaws in the decision-making process related to a disciplinary hearing, primarily by failing to give presumptive weight to the Review Board's recommendation, favoring Wolfe's account over the plaintiff's, and engaging in an ex parte discussion with a non-testifying witness. Additional contributing factors included the lack of eyewitnesses present at the Hearing, a hostile atmosphere, and biased questioning directed towards the plaintiff compared to Wolfe. Temple's process aims to balance student rights with resource allocation, requiring the final decision-maker to review all evidence and the Review Board's findings; however, Carry neglected to do so. He disregarded the Review Board's suggestion that the charges lacked sufficient evidence and that suspension was the appropriate penalty. His reliance on Wolfe's police officer status to assert that the plaintiff posed a danger, without considering Wolfe’s potential role in instigating the incident, further undermined the integrity of the process. The Hearing was also flawed by the absence of key witnesses despite the plaintiff's request for their attendance, and the Panel's initial reading of a summary that presented Wolfe’s narrative without allowing the plaintiff to provide his perspective. The Panel failed to rigorously question Wolfe, allowing him to present lengthy narratives and misleading statements regarding his exoneration from police policy violations, which were later found to be inaccurately represented.
The Chair questioned the plaintiff regarding inquiries directed at Wolfe and declined to pose certain questions. In contrast, the Panel members aggressively cross-examined the plaintiff, leading to a contentious atmosphere, exacerbated by the presence of the plaintiff's mother. The Hearing was intended to focus on the plaintiff rather than his mother, highlighting a lack of decorum from the Panel and University officials that hindered the truth-finding process.
Regarding qualified immunity, the defendants claimed entitlement in their individual capacities, asserting that government officials performing discretionary functions are protected unless they violate clearly established rights. The court must assess whether any constitutional rights were violated and if those rights were clearly established. Although the plaintiff's due process rights during the disciplinary hearing were clearly established and violated, the court found that the violation stemmed from multiple issues rather than the actions of any single defendant. Consequently, a reasonable official in the defendants' positions would likely not recognize that their actions violated the plaintiff's rights. Although Carry could have identified earlier errors, the complexities of the case prevented a clear understanding of due process violations. Therefore, the court ruled that the individual defendants are entitled to qualified immunity.
Ultimately, the court favored the plaintiff on the procedural due process claim, vacating his expulsion and ordering his reinstatement at Temple University unless a new due process-compliant hearing is conducted within sixty days. An appropriate order will follow.
Defendants in the case include Temple University and several university officials, with the Temple University Review Board inadvertently omitted from a prior summary judgment order. During the bench trial, the Court reserved rulings on objections to exhibits, addressing only those relevant to the findings of fact, while ruling others moot. Exhibits submitted by the plaintiff are labeled as "P" and those by the defendants as "D." The Temple University Code of Conduct underwent amendments, with two versions submitted as exhibits; the version applicable at the time of the incident (P-68) and the one in effect during the hearing and appeal (D-2). Despite the changes, the Court found them irrelevant to the case. The facts of the incident in question are disputed, but the Court determined that findings on these facts were unnecessary for assessing the plaintiff's procedural due process claim.
The plaintiff objected to a transcript on hearsay grounds, but the Court accepted it to show what was stated during a specific hearing, not for the truth of those statements. Testimony revealed that Robinson could not recall being contacted about the Temple disciplinary hearing but did remember two calls about a related incident, one suggesting he need not attend a hearing if he could answer questions in a phone interview. The Court found no clarity on whether Robinson was informed about his attendance requirements for the hearing. An undisputed transcript of the Hearing was entered into evidence, alongside an audio recording that neither party submitted. The plaintiff and another witness testified that the plaintiff never received the Hearing Summary or was aware of its distribution to the Panel, despite references made to it during the hearing by university officials.
The Court addresses testimony relevant to the due process claim without making factual findings about the events of April 5, 2008, which are outside the lawsuit's scope. The plaintiff testified that Greenstein took a break when Wolfe became flustered, with transcripts indicating no questions were posed to Wolfe immediately prior to these breaks. Philadelphia Police Lt. Saggese's February 27, 2009 memorandum stated that Wolfe violated Police Department policy on that date, though he was exonerated from an excessive force allegation. Saggese criticized Wolfe’s decision to confront the plaintiff, noting it was dangerous for Wolfe, who was off-duty and in plainclothes, and that his perception of danger was unfounded until the confrontation escalated. The plaintiff and the Panel did not possess this memorandum. George Furey testified he heard Greenstein’s question during a Hearing break, and while the Court finds Furey’s sincerity credible, it also finds other witnesses' testimonies equally credible. Greenstein asked the plaintiff about Wolfe's possible motivations, and Adler later clarified her deposition statement regarding a "positive ETOH" designation, asserting it was correct as it appeared in both the social history and physician’s report. Testimonies regarding the deliberation time by the Panel varied; the plaintiff reported short deliberations, while others indicated longer periods. Professor Jonathan Scott's deposition was submitted instead of live testimony. Discrepancies arose in Carry's testimony about a meeting with Segars, affecting the Court's assessment of Carry's credibility and factual findings regarding that meeting.
Carry's testimony at trial differed from Segars's regarding a specific meeting, with the Court favoring Segars's account due to his demeanor, clarity, and lack of personal stake in the case. Carry claimed to have reviewed exhibits presented by the plaintiff during the hearing; however, he previously stated in a December 2009 deposition that he did not review these exhibits and could not recall any specifics. Given this inconsistency, the Court concluded that Carry did not review the exhibits.
Carry's deposition revealed that he initially denied the Code mandated giving presumptive weight to the Review Board’s recommendation but later acknowledged considering it more than the Hearing Panel's decision. He later claimed his deposition responses were incorrect, asserting he typically uses the phrase "weigh in favor" of the Review Board, yet could not clarify how this presumption influenced his analysis.
Carry expressed concern regarding a student's involvement in a weapon-related incident with an officer, stating that such behavior typically results in expulsion, and he found no reason to deviate from this decision in this case. He confirmed consideration of the specific allegation in his expulsion decision and maintained that no prior information contradicted it.
The testimony regarding the incident was corroborated by Robinson's trial testimony and statements made to police detectives. The defendants' objection to the relevance of this exhibit was overruled, with descriptions derived from multiple testimonies and statements documented in police incident reports.
The defendants' objection to exhibit P-54 is overruled, as both Segars and Kenyatta identified themselves in the photograph. The Supreme Court case Bd. of Curators of the Univ. of Missouri v. Horowitz established that dismissals for academic reasons are based on subjective judgment from school officials, necessitating less stringent due process requirements compared to disciplinary dismissals. Woltemate's email, which suggested urgency in resolving the matter, is noted, but he was not a decision maker in the disciplinary process. Courts have indicated that due process might necessitate legal representation when a school’s case involves an attorney or complex procedures; however, this case did not involve such circumstances, as the University’s proceedings were straightforward, allowing the plaintiff to question witnesses and present evidence. The ruling differentiates from Mills v. Bd. of Educ., where counsel was mandated for disabled students who could not represent themselves. The Court observed that Adler's use of the term "tested" was not clarified to mean a "smell test," but this did not indicate bias, as the Panel received ample testimony regarding the plaintiff's drinking prior to the incident.
