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Kevin Furey v. Temple University

August 3, 2012

KEVIN FUREY
v.
TEMPLE UNIVERSITY, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN FUREY v. TEMPLE UNIVERSITY, et al.

CIVIL ACTION NO. 09-2474

TABLE OF CONTENTS

I. Procedural History.. . . . . . . . . . . . . . . . . . . . 2 II. Findings of Fact.. . . . . . . . . . . . . . . . . . . . . 3 A. Introduction. . . . . . . . . . . . . . . . . . . . . 3 B. Temple's Code of Conduct. . . . . . . . . . . . . . . 5 C. The Incident on April 5, 2008.. . . . . . . . . . . 10 D. University Disciplinary Charges Against the Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . 11 E. Correspondence and Scheduling the Hearing.. . . . . 13 F. The Hearing.. . . . . . . . . . . . . . . . . . . . 18 1. Conflicts. . . . . . . . . . . . . . . . . . . 19 2. The Hearing Summary. . . . . . . . . . . . . . 20 3. Absent Witnesses and Requested Continuance.. . 21 4. Wolfe's Testimony .. . . . . . . . . . . . . . 23 5. Other University Witnesses . . . . . . . . . . 27 6. The Plaintiff's Testimony. . . . . . . . . . . 27 7. Other Testimony for the Plaintiff. . . . . . . 32 8. The Plaintiff's Advisors.. . . . . . . . . . . 33 G. Panel Deliberations.. . . . . . . . . . . . . . . . 34 H. Rebuttal and Appeal.. . . . . . . . . . . . . . . . 35 1. The Review Board . . . . . . . . . . . . . . . 36 2. Foley's Investigation. . . . . . . . . . . . . 37 I. Carry's Review. . . . . . . . . . . . . . . . . . . 38 1. Meeting with Doug Segars.. . . . . . . . . . . 39 2. Carry's Decision.. . . . . . . . . . . . . . . 40 J. Carry's Recommendation to Powell. . . . . . . . . . 42 K. Post Appeal Events. . . . . . . . . . . . . . . . . 43 L. Absent Witnesses. . . . . . . . . . . . . . . . . . 43 M. Other Events. . . . . . . . . . . . . . . . . . . . 47 III. Conclusions of Law.. . . . . . . . . . . . . . . . . . . 48 A. Due Process Requirements. . . . . . . . . . . . . . 48 B. The Plaintiff's Challenges. . . . . . . . . . . . . 52 1. Facial Challenge to the Code.. . . . . . . . . 54 2. Departures from the Code of Conduct. . . . . . 55 3. Failure to Provide Notice. . . . . . . . . . . 58 4. Right to Remain Silent, Cross-examine Witnesses, and Right to Counsel.. . . . . . . . . . . . . 62 a. Right to Remain Silent. . . . . . . . . . . 62 b. Cross-Examination.. . . . . . . . . . . . . 62 c. Right to Counsel. . . . . . . . . . . . . . 64 5. Absence of Witnesses and Alleged Perjured Testimony .. . . . . . . . . . . . . . . . . . 67 6. Bias and Impartiality. . . . . . . . . . . . . 71 7. Other Issues with the Fairness of the Hearing Process .. . . . . . . . . . . . . . . . . . . 73 a. The Hearing.. . . . . . . . . . . . . . . 73 b. The Appeal. . . . . . . . . . . . . . . . 76 C. The Plaintiff's Disciplinary Process as a Whole.. . 80 D. Qualified Immunity. . . . . . . . . . . . . . . . . 85 IV. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . 87

MEMORANDUM

This suit arises from the plaintiff's expulsion from Temple University. The plaintiff claims that Temple University and various Temple employees*fn1 violated his Fourteenth Amendment right to procedural due process during the disciplinary process that led to his expulsion.

The Court held a bench trial from March 26, 2012 to April 5, 2012 and heard the parties' closing arguments on June 21, 2012. This memorandum and order constitutes the Court's findings of fact and conclusions of law. The Court finds in favor of the plaintiff on his procedural due process claim but finds that the individual defendants are entitled to qualified immunity in their individual capacities.

I. Procedural History

The plaintiff filed a complaint and motion for preliminary injunction on June 2, 2009 and an amended complaint on June 9, 2009 following his expulsion from Temple University in May of that year. The plaintiff alleged violations of his Due Process and Equal Protection rights as well as breach of contract and retaliation. He sought reinstatement as a student at Temple and expungement of any record of the expulsion from his college records.

The Court stayed the case while the parties engaged in settlement discussions. After those discussions were unsuccessful, the Court considered and denied the defendants' motion to dismiss. The Court set an expedited discovery schedule and a hearing. At the close of discovery, the defendants filed a motion for summary judgment on all claims. The plaintiff filed a motion for leave to file a second amended complaint alleging several new due process violations and amending the relief requested to include monetary damages. This request was denied except that the plaintiff was permitted to amend his complaint to include a damages request for attorney fees and costs. The plaintiff's second amended complaint was filed on May 27, 2010.

Following a full briefing and oral argument on the defendants' motion for summary judgment, the Court granted summary judgment in favor of several defendants who were not involved in the decision to expel the plaintiff, and in favor of the remaining defendants on all counts except the procedural due process claim.*fn2 The case was stayed again while the parties engaged in settlement discussions. The discussions were unsuccessful and the Court scheduled a trial. Shortly before trial, the plaintiff withdrew his jury demand. An eight-day bench trial followed.

II. Findings of Fact*fn3

A. Introduction

1. In April of 2008, the plaintiff, Kevin Furey, was a full-time student at Temple University in the second semester of his sophomore year. 3/26/2012 Tr. at 27:13-15. On May 27, 2009, the plaintiff was expelled from Temple University. Ex. P-40.*fn4

2. The defendant Temple University ("Temple" or "the University") is a public university and member of the Commonwealth system of education.

3. The defendant Andrea Seiss was Temple's Associate Dean of Students and University Code Administrator for the Office of Student Conduct. 4/2/12 Tr. at 227:17-18; 4/3/12 Tr. at 39:8-19.

4. The defendant Brian Foley was Vice Code Administrator and Program Coordinator for the Office of Student Conduct. 4/2/12 Tr. at 4:22-5:1.

5. The defendant Valerie Harrison was Temple's Associate University Counsel. 4/4/12 Tr. at 194:7-12.

6. The defendant Richard Greenstein was a Professor of Law at Temple's Beasley School of Law and a chair of Temple's University Disciplinary Committee. 3/30/12 Tr. at 72:4-8, 74:6-9.

7. The defendant Keith Gumery was a professor in Temple's Department of English and the Associate Director of Temple's First Year Writing Program. He was a vice chair of Temple's University Disciplinary Committee. 3/29/12 Tr. at 174:5-9, 281:25-282:8.

8. The defendant Diane Adler was a retired Professor at the School of Nursing. 4/4/12 Tr. at 58:18-24.

9. The defendant Theresa Powell was Temple's Vice President for Student Affairs. 3/30/2012 Tr. at 7:7-11.

10. The defendant Ainsley Carry was Temple's Associate Vice President and Dean of Student Affairs. 3/28/2012 Tr. at 169:4-7.

B. Temple's Code of Conduct

11. Student conduct at Temple University is governed by the Student Code of Conduct ("the Code").*fn5

12. The Code applies to conduct within 500 yards of the University campus and to off-campus conduct that seriously threatens the safety and well being of Temple University students or staff or that adversely affects the University community. Ex. P-68 at 1-2.

13. The Code of Conduct lists prohibited activities and the possible sanctions for those activities. One possible sanction is expulsion. Id. at 5-7.

14. The University Code Administrator oversees the University's judicial system. Id. at 3.

15. When an incident occurs that could be a violation of the Code, the Code Administrator determines whether to charge the student with Code violations. Id. at 1, 3.

16. The Code Administrator is responsible for notifying a student charged with Code violations of the specific charges, the identity of any witnesses, and a description of any physical or documentary evidence filed with the charges. Id. at 3.

17. The Code Administrator schedules a Pre-Hearing Meeting with the charged student within five days of the student being charged. This meeting is informal and non-adversarial so the student and the University Disciplinary Committee ("UDC") staff member can discuss the charges, the incident, the hearing procedures, and the possible sanctions. The student must attend the Pre-Hearing Meeting and may be accompanied by an advisor in a non-active role. Id. at 11-12, 14.

18. The student may choose to accept responsibility for the charges or continue to a hearing. Id. at 11-12.

19. The Code Administrator determines the appropriate hearing body from among the four bodies that hear disciplinary charges. Complex cases or cases involving severe sanctions are referred to the UDC Hearing Panel (the "Full Panel"). The Full Panel is composed of three faculty members of the UDC, one of whom is the panel chair, and two student members of the UDC. Id. at 12.

20. A Full Panel hearing should occur thirty business days after the Pre-Hearing Meeting, but the time limit may be extended at the Code Administrator's discretion. Id. at 13.

21. The Full Panel, like all UDC hearing bodies, is an administrative, fact-finding panel. Its proceedings are non-adversarial; rules of evidence, standards of proof, and other elements of court proceedings do not apply. Id. at 2.

22. During the hearing, the University has the burden to prove that the student violated the Code of Conduct under a more likely than not standard. Ex. D-2 at 12.

23. At the hearing, an accused student can offer testimony, witnesses, and other evidence in his own defense. Accused students may also question testifying witnesses by posing questions through the presiding Chairperson. Id.

24. When a student wishes to present witnesses who are members of the Temple community, the student can request that the Code Administrator's office issue notices requiring the witnesses' appearance at the hearing. Id.

25. If evidence is presented at the hearing that was not included with the original hearing notice, the student may have time during the hearing to examine and respond to it. Id. at 13.

26. A student may have an advisor or an attorney to assist in preparing for the hearing and at the hearing itself. The advisor or attorney plays a non-active role and cannot question witnesses or address the panel. Id.

27. The charged student is not required to testify and the panel can draw no inference from the student's failure to testify. Id.

28. All hearings are closed to the public. The Dean of the student's school, the Dean of Students, and the Vice President for Student Affairs or her designee may attend hearings as observers. Id. at 12-13.

29. The hearing panel deliberates and determines a violation by majority vote and then recommends a sanction. Faculty or administration officials may make recommendations to the hearing body concerning sanctions. Id. at 13.

30. When expulsion is recommended, the student can appeal the recommendation and sanction directly to the Review Board. An appeal must be filed within three days and based on: (1) availability of new evidence sufficient to alter the decision, (2) procedural defects substantially preventing a fair hearing, (3) insufficiency of the evidence to reasonably support the decision, or (4) sanctions grossly disproportionate to the offense. Id. at 14.

31. The Review Board is comprised of two students, two faculty members, and one administrator. Id. at 11.

32. If the Review Board decides that the sanctions are grossly disproportionate to the offense, then it may recommend modified sanctions. If a majority of the Board decides that there were procedural defects that substantially prevented a fair hearing, it will recommend a new hearing before a new panel. If a majority of the Board decides that the decision could not have been reasonably reached from the evidence presented at the hearing, the Review Board will recommend that the original decision and/or sanctions be modified.

Id. at 14-15.

33. The Review Board conveys its recommendations to the Vice President for Student Affairs. Id. at 15.

34. The Vice President for Student Affairs, or her designee, reviews the entire record, the hearing panel's recommendation, and the Review Board's recommendation. The Vice President for Student affairs must give presumptive weight to the Review Board's recommendations. Id.

35. Once the Vice President for Student Affairs has made a final determination of responsibility and sanctions, the Code does not provide for further review of the decision or sanction. Id.

36. Although the Code does not provide for additional appeals, if new information is discovered after the appeals process, a student could bring that information to the Dean of Students Office or the Office of Student Affairs. The Dean of Students and University counsel would review the material and determine if another appeals process was appropriate. 4/3/12 Tr. at 15:10-16:8.

C. The Incident on April 5, 2008

37. In the early morning hours of April 5, 2008, the plaintiff was arrested following an encounter with Travis Wolfe, an off-duty Philadelphia police officer.*fn6

38. Following this incident, the plaintiff was charged by the Commonwealth of Pennsylvania with aggravated assault on a police officer. 3/26/12 Tr. at 72:20-22.

39. The plaintiff appeared in Municipal Court before Judge Jimmie Moore for a preliminary hearing on April 15, 2008. Wolfe testified at the hearing about the events of April 5, 2008. Ex. P-12.

40. Judge Moore continued the case, and the plaintiff again appeared before Judge Moore on November 24, 2008. Ex. D-82.*fn7 At this hearing, the parties reached an agreement for the plaintiff to enter an Accelerated Rehabilitative Disposition ("ARD") Program in lieu of continuing prosecution. The plaintiff read a statement that he believed were proposed terms of the ARD agreement admitting the truthfulness of Wolfe's testimony and apologizing. Id. at 22:21-24:4. The plaintiff believed these terms could later be negotiated. 3/28/12 Tr. at 114:7-18, 145:6-13. The plaintiff was placed in the ARD program on June 10, 2009 at a later hearing before a different Judge. 3/28/12 Tr. at 114:11-18, 153:1-14. The terms read at the November 28, 2008 hearing were not part of the eventual ARD agreement. Id. at 145:6-13.

D. University Disciplinary Charges Against the Plaintiff

41. Seiss received a report from the Temple campus safety services with a one paragraph description of the April 5 incident. 4/3/12 Tr. at 46:15-47:2. That paragraph read:

At 3:29am on Saturday April 5, 2008 PO Binder observed two men struggling on the ground. As he approached the men, Travis Wolfe identified himself as a Philadelphia Police Officer. Wolfe requested help in controlling the other male, Temple student Kevin Furey. Binder helped Wolfe handcuff Furey. Wolfe told Officer Binder that he had been in his car and observed Furey with an unidentified object that appeared to be a handgun. Furey started walking toward Wolfe. Wolfed asked Furey what he had in his waistband. Wolfe said that Furey removed a machete from his pants and started walking toward him in a threatening combat motion. Wolfe removed his service handgun and showed Furey his badge and instructed Furey to put down the machete. Furey pointed the machete to the ground but did not drop it. Wolfe again ordered Furey to put down the machete. Furey then dropped the machete.

Ex. D-3.

42. Other than the names of witnesses to the event, this is the only information about the case that the Code Administrator received from the Campus Safety Office.

43. Seiss determined that the incident was within the Code's jurisdiction because it both occurred within 500 yards of the University campus and might have seriously threatened the safety of University community members. 4/3/12 Tr. at 76:3-13.

44. On April 10, 2008, the Code Administrator's office sent an e-mail to the plaintiff's Temple University e-mail address with the subject line "Notice of Disciplinary Action." Attached to the e-mail was a one page "Charge Notice." Ex. D-3; 3/28/12 Tr. at 7:15-20; 4/3/12 Tr. at 57:16-58:11.

45. Based on the description provided in the referral, Seiss charged the plaintiff with three Code violations. 4/2/12 Tr. at 221:7-10, 226:19-20.

46. The Charge Notice stated: "You have been charged by Temple University with violation(s) of the following section(s) of the Temple University Student Code of Conduct" and included the full text of those sections:

3. Any act or threat of intimidation or physical violence toward another person including actual or threatened assault or battery;

8. The use, possession, sale or storage of articles and substances that endanger a person's health and/or safety. This includes, but is not limited to, firearms (e.g. guns, pistols, rifles, stun guns, air rifles, pellet guns, etc.), fireworks, knives, weapons, ammunition, gun powder, explosives, or other material containing flammable substances, as well as replicas of any such articles or substances. The University will confiscate any such articles. Any student found in possession of a firearm will be immediately suspended from Temple University pending the outcome of the UDC process;

12. Engaging in disorderly conduct. Disorderly conduct may include disruption of programs, classroom activities or functions and processes of the University. This includes unreasonable noise, creating a physically hazardous or physically offensive condition; inciting or participating in a riot or group disruption; failing to leave the scene of a riot or group disruption when instructed by officials.

Ex. D-3.

47. The Charge Notice also included a web site where the student could access the Student Code of Conduct online. Ex. D-3.

48. In addition, the Charge Notice contained a copy of the paragraph reproduced at Finding of Fact 41 upon which Seiss based the charges. 4/3/12 Tr. at 46:15-47:2.

49. Finally, the Charge Notice also instructed the plaintiff to schedule a Pre-Hearing Meeting with the University Code Administrator within five days. Ex. D-3.

E. Correspondence and Scheduling the Hearing

50. The plaintiff forwarded the notice to his mother, Margaret Boyce Furey, Esq., who acted as his attorney. 3/28/12 Tr. at 8:8-9.

51. Boyce Furey responded to Seiss in a letter dated April 16, 2008, describing the plaintiff's version of the incident and requesting a Pre-Hearing Meeting after he finished classes on May 5, 2008. Ex. D-4.

52. Because the April 16 letter was written by an attorney, Seiss forwarded a copy of the letter to University Counsel Harrison. 4/3/12 Tr. at 9:3-21.

53. The Pre-Hearing Meeting was not scheduled at that time and no further action was taken by any party until the fall of 2008.

54. In April of 2008, the plaintiff had not enrolled in any courses for the fall 2008 semester. Because Temple does not schedule a hearing when a student is not registered for classes, a "hold" was placed on the plaintiff's student account. The hold was removed in the summer of 2008 when the plaintiff attempted to register for classes for the fall of 2008 and the parties attempted to schedule a hearing. 4/2/12 Tr. at 173:14-175:15, 285:12-286:16.

55. During the fall of 2008 and the spring of 2009, Boyce Furey, Seiss, and Harrison attempted through phone calls, e-mails, and letters to schedule both the Pre-Hearing Meeting and Hearing.

56. A Pre-Hearing Meeting was held on December 15, 2008. The plaintiff, Boyce Furey, Seiss, and Harrison attended. 4/3/12 Tr. at 36:3-6, 70:17-21.

57. During the correspondence, Boyce Furey requested notice of the charges against the plaintiff, a summary of the evidence supporting the charges, a copy of the disciplinary hearing procedures, and a Copy of the Code of Conduct. Exs. D-5; D-18.

58. This information had been provided in the Charge Notice sent to the plaintiff, but it was not re-sent to Boyce Furey.

59. Boyce Furey also requested that the Temple police officers who were present on April 5 attend the disciplinary hearing. Ex. D-18.

60. Seiss sent the plaintiff a list of all of the witnesses the University intended to call to the Hearing. Officer Wolfe and all four Temple University officers who were present on April 5 were included on this list. Exs. D-13; D-30.

61. Boyce Furey also requested that Temple provide her with the names and addresses of the individuals accompanying Wolfe on April 5. Exs. D-18; D-19; D-21; D-24; D-28; D-33.

62. Seiss contacted Ed Woltemate with the Temple Police department to request information about the individuals with Wolfe on the night of the incident. 4/3/12 Tr. at 106:10-107:12; Ex. D-35.

63. Woltemate provided Seiss with three names: Steve Robinson, Douglas Segars, Colin Anderson. Colin Anderson and Douglas Segars were both students at Temple University. Exs. D-36; D-37.

64. Seiss and Harrison sent the plaintiff and Boyce Furey the names of these individuals but not their contact information. Exs. D-22; D-27; 4/2/12 Tr. at 267:12-23; 4/4/12 Tr. at 144:12-17. Seiss informed the plaintiff and Boyce Furey that the University would contact these witnesses about the Hearing. Ex. D-22.

65. The Hearing date was rescheduled on several occasions, including once by Seiss when one of the student witnesses reported to her that he would be unable to attend, twice at Boyce Furey's request because a Pre-Hearing Meeting had not been held, and once to accommodate Boyce Furey's schedule. Exs. D-14; D-18; D-23; D-29; D-32.

66. A Hearing was scheduled for March 25, 2009 before a Full Panel. Seiss informed the plaintiff that Professor Greenstein would act as Chair of the Panel. 4/3/12 Tr. at 47:3-7; Ex. D-34.

67. Boyce Furey included Greenstein as a recipient on several letters sent to University officials. Greenstein read one of the letters and did not open or read the rest. From the letter he read, he was aware both that the plaintiff's case involved an attorney advisor and there were continuances in scheduling the Hearing. 3/30/12 Tr. at 114:19-25, 212:6-15, 213:13-17.

68. Shortly before the Hearing, Brian Foley became the Code Administrator for the plaintiff's ...


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