The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Plaintiff Julie Coulter's Motion for Preliminary Injunction pursuant to Fed. R. Civ. P. 65(a). (Doc. 18.) For the reasons discussed below, Plaintiff's motion will be granted.
In January 2010, Plaintiff began her spring semester as a freshman at East Stroudsburg University and paid ten thousand nine hundred and thirty-two dollars ($10,932.00) in tuition, room, board, and fees. (Am. Compl. ¶ 7.) On March 18, 2010, East Stroudsburg University Police Officer Matthew Brill went to Plaintiff's dormitory room to investigate a report that Plaintiff possessed illegal controlled substances, where he seized twelve (12) blue pills that Plaintiff allegedly stated were ecstasy. (Coulter Aff., Ex. C.)
A disciplinary hearing was scheduled for April 21, 2010. (Am. Compl. ¶ 15.) At the hearing, Plaintiff's counsel was allowed to attend and advise plaintiff, but not otherwise participate. (Schlottman Aff. at ¶ 4.) During the hearing East Stroudsburg University Police Chief, Robyn Olson, was the only witness that testified against Plaintiff; Olson's testimony was essentially limited to reading the arresting officer's report. (Doc. 18 at ¶ 14.) When asked if Plaintiff had any questions for the witness, Plaintiff declined to speak, upon counsel's advice that she exercise her right to remain silent; likewise, Plaintiff chose not to present any witnesses on her own behalf. (Coulter Aff. at ¶¶ 15-16.) Plaintiff chose to remain silent at the hearing because she had been advised that the matter was under investigation by the Monroe County District Attorney. (Coulter Aff. at ¶ 14.)
At the conclusion of the hearing, it was recommended that Plaintiff be immediately suspended from the university until the end of the spring 2011 semester, be placed on academic probation until the end of the spring 2012 semester, be subject to a drug and alcohol evaluation upon return to school, and be ineligible for campus housing upon return to school. (Am. Compl. ¶ 17.) On April 23, 2010, the recommendations were adopted by the Vice President of Student Affairs. (Am. Compl. ¶ 19.) Plaintiff filed the instant motion on May 5, 2010, seeking, inter alia, to enjoin Defendant Robert J. Dillman from expelling Plaintiff from East Stroudsburg University and prohibiting Plaintiff from attending scheduled courses and taking final examinations at East Stroudsburg University.*fn1
In order to be granted a preliminary injunction, the Plaintiff must show (1) a reasonable likelihood of success on the merits; (2) that irreparable harm will result if the Court denies relief; (3) that even greater harm will not befall Defendant if the Court should grant relief; and (4) that granting preliminary relief will be in the public interest. See Forum For Academic and Institutional Rights v. Rumsfield, 390 F.3d 219, 228 (3d Cir. 2004).
Plaintiff is likely to succeed on her claim against Dillman for violation of procedural due process, pursuant to 42 U.S.C. § 1983. The Fourteenth Amendment protects a person against government deprivation of life, liberty, or property without due process of law. "Property interests are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540 (1985) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)).
In Ross v. Pennsylvania State University, 445 F. Supp. 147, 152 (M.D. Pa. 1978), this Court held that graduate students have "a reasonable expectation based on statements of policy by [the university] and the experience of former students that if [they] perform the required work in a satisfactory manner and pays [their] fees [they] will receive the degree [they] seek." However, in Ross, it was held that the student did not have a property interest in specific procedures because the official publications of the university did not contain hearings. Id. Thus, it is likely Plaintiff had a property interest in continuing her education with East Stroudsburg University because she had a reasonable expectation of being allowed to take her exams having performed the work required and paying her tuition.
Having determined Plaintiff likely has a valid property interest, the Court must determine what process was due. In the context of academic disciplinary hearings, the touchstone of due process is notice and opportunity to be heard. Goss v. Lopez, 419 U.S. 565, 578-79 (1975). The opportunity to be heard must be meaningful. Jarbough v. Attorney General of the United States, 483 F.3d 184, 190 (3d Cir. 2007)(citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Although the amount of process due in disciplinary hearings for students is relatively low, the procedures in place must meet the minimum requirements of due process. See Goss, 419 U.S. at 582 (ten-day suspension requires no delay between notice and time of hearing); see also Flaim v. Medical College of Ohio, 418 F.3d 629 (6th Cir. 2005)(universities need not allow active representation by legal counsel, cross-examination of witness, or give statement of reasons for adverse decision). Nonetheless, the hearing must give the accused the opportunity to respond, explain, and defend. Flaim, 418 F.3d at 635.
In determining whether the process given was sufficient, the court must weigh the private interest affected by official action, the risk of erroneous deprivation of that interest through the procedures used, and the probable value of additional safeguards weighed against the cost of instituting additional safeguards. Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). Due process is a flexible and fluid concept that will call for procedural protections based heavily on the context of the situation at bar. Id. at 334.
The crux of Plaintiff's argument is that the University violated her due process rights when it did not allow her to have an attorney or some other representative actively participate in the hearing process, despite the fact that Plaintiff believed that she might be facing criminal prosecution stemming from this incident. Plaintiff was confronted with the choice of either making a statement or cross-examining the witness at the risk of having those statements used against her in future criminal proceedings, or remaining silent and having her academic future decided on the basis of adverse evidence only, namely the police report. Plaintiff claims that denying ...