Doe v. Pennsylvania State University
Doe v. Pennsylvania State University
Opinion of the Court
MEMORANDUM OPINION
Before the Court for disposition is Plaintiff John Doe’s Motion for a ’Temporary Restraining Order and Preliminary Injunction. Following a hearing on August 10-11, 2017 and upon thoughtful consideration of the parties’ arguments, this Motion will be granted in accordance with the reasoning set forth below.
I. BACKGROUND
A. The Complaint
On September 7, 2016, Jane Roe (“Roe”), a student in the joint program between The Pennsylvania State University (“Penn State”) and the Sidney Kimmel Medical College at Thomas Jefferson University,
Following this complaint by Roe, two immédiate actions were taken. First, Doe was issued, on September 8, 2016, a “Notification of Administrative Directive” by Mr. Kowal stating that he was to have no contact with Roe.
B. The Investigation
On September 21, 2016 John Doe received an email from the Senior Title IX Compliance Specialist, Defendant Kathari-na Matic (“Ms. Matic”), requesting a meeting for the following day.
On September 28, 2016, John Doe again met with Ms. Matic, the Investigator, during which he was first informed of the general substance of Jane Roe’s allegations. He was specifically informed that Residence Life had gone- to Jane Roe’s room to meet with her and her roommate on the afternoon of September 7, 2016. During that meeting, Jane Roe had stated that John Doe had “attempted to kiss her, that she was afraid to scream, that there was touching of a hand up under her clothes and that she might be bleeding a bit.”
John Doe met with Ms. Matic again on October 5, 2016. While Roe had not yet submitted a written report, Ms. Matic stated that, based upon the incident report from Residence Life, Roe was alleging that John Doe was responsible for noneonsen-sual digital penetration.
On December 16, 2016, John Doe was allowed to see the preliminary investigation report compiled by Ms. Matic for a limited time in her office and under her supervision.
On January 13, 20Í7, .Doe again met with the Investigator to review the revised investigation report, and, in the course of that meeting, told Ms., Matic that, he disagreed with the numerous redactions that had been made in the report.
On March 21,-2017, Doe reviewed another draft of the investigation report, and thereafter submitted another response.
The final. Investigative Report and Exhibits was provided to. Defendant. .Karen Feldbaum, Associate Director of Student Conduct (“Ms. Feldbaum”) on April 18, 2017.
As such, I have issued the following charge and sanctions: •
02.03 / Nonconsensual Penetration: Digital or With an Inanimate Object.
Conduct Suspension through FA2017.
*305 Educational Program and/or Counseling required for readmission determine by assessment.
I have attached the University form which indicates the charge and sanctions. You have five business days to respond (the form indicates 3 but we provide 5 given the nature of the violation and sanction). Your decision is due to me no later than 5:00PM on May 17, 2017. Your options are:
1) Accept the charge and sanction
2) Accept the charge and contest'the sanction
3) Contest the charge, which will also carry with it a determination of the sanction.34
• John Doe refused to accept the charge and accompanying sanction, and filed a written response on May 17, 2017 denying Roe’s allegations and objecting specifically to Penn State’s failure to inform him as to a November 3, 2016 revision in the Code of Conduct.
C. The Hearing and the Board’s Decision
The Title IX Decision Panel was held on June 6, 2017. Plaintiff alleges that the following errors occurred before' the decision panel. First, Dóe alleges that he was silenced when he attempted to talk about the procedural errors committed by Penn State which had impacted the investigation and adjudication in violation of Penn State’s Code of Conduct.
When and where did you hav.e a medical examination?
You were examined to see if there was any evidence of non-consensual penetration by [Doe]. Is this correct?
You received the results of that medical examination, in a report or records, right?
Before you were examined, you explained to someone there what happened and why you wanted a medical examination, is this correct? And you provided information about whether you had any medical conditions and whether you are taking any' medications?40 '
The Hearing Chair rejected all these questions, reasoning:
We understand you already went for a medical exam and we also understand that a medical exam is not going to*306 determine whether it was consensual or nonconsensual activity in any case, so that’s not relevant. Again, that’s new information so not considering.41
The Title IX Decision Panel found Doe to be in violation of Penn State’s Code of Conduct that same day,
D. The Appeal
On June 16, 2017, Doe appealed this decision to the Student Conduct Appeals Officer, Yvonne Gaudelius.
E. This Action
On July 25, 2017, Plaintiff John Doe commenced the instant action against Defendants The Pennsylvania State University; The Pennsylvania State University Board of Trustees; Eric J. Barron, individually and as agent for the Pennsylvania State University; Paul Apieella, individually and as agent for the Pennsylvania State University; Karen Feldbaum, individually and as agent for the Pennsylvania State University; and Katharina Matic, individually and as agent for the Pennsylvania State University.
On July 28, 2017, Plaintiff filed the instant Motion for a Temporary. Restraining Order and Preliminary Injunction to prohibit Defendants, from barring Plaintiff from attending Fall Semester 2017 Classes at Penn State and from participation in the Penn State-Jefferson seven (7) year premed program.
II. LAW
The United States Court of Appeals for the Third Circuit has recognized that “the grant of injunctive relief is an extraordinary remedy, which should be granted only in limited circumstances.”
In Reilly v. City of Harrisburg, the Third Circuit recently clarified the burden on a party 'seeking issuance of a preliminary injunction.
III. ANALYSIS
In Doe’s Motion for a Temporary Restraining Order and Preliminary Injunction, he argues that injunctive relief is appropriate because he has shown (1) a likelihood of success on the merits of both his due process and Title IX gender discrimination claim,
A. Plaintiff Has Demonstrated a Likelihood of Success on the Merits of his Due Process Claim.
A short suspension is, of course, a far milder deprivation than expulsion. But, “education is perhaps the most important function of state and local governments,” Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is' a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.64
Turning to the application of the Due Process Clause, the Court wrote: “Once it is determined that due process applies, the question remains what process is due.”
First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.66
Importantly, in a school disciplinary setting, the Goss Court wrote that “students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.”
In the instant matter, I find that, based on the singularities of this case, Doe
First, Doe alleges-that his right to due process in a school disciplinary setting has not been satisfied because, among other things, he was denied the opportunity to meaningfully cross examine and confront his accuser.
Due Process in disciplinary proceedings does not, in itself, require that the accused be afforded the right to cross examination witnesses supporting a charge.
Doe argues, however, that Penn State nevertheless deviated from this procedure when the hearing panel rejected as “new evidence” almost all of the twenty-two questions he submitted, including, most pertinently for purposes of my analysis today, questions concerning an unproduced medical exam.
Here, I find, at this preliminary stage in the litigation, that Penn State’s failure to ask the questions submitted by Doe.may contribute to a violation of Doe’s right to due process as a “significant and unfair deviation” from its procedures. As noted above, Penn State’s procedure, as embodied in the Code of Conduct, provides that “the Complainant and Respondent may suggest questions to be posed to the other party by and through the Panel. Proposed questions will be submitted to the Pan
While Penn State’s policy allowing for the submission' of questions for review and use by the hearing panel may satisfy an accused’s rights to confront and cross examine adverse witnesses,
Second, while I accept the finding of the hearing chair that this evidence was “not going to determine whether it was consensual or nonconsensual activity,”
THE COURT: But do you know whether she actually sought medical treatment beyond her say-so?
THE WITNESS: It indicated it in the packet and there was nothing that questioned that in the packet.
THE COURT: But you don’t know whether there was actually beyond her saying'it—in Latin it would be ipse dixit. Beyond her saying so, you don’t know whether she actually went to a doctor or she went to the infirmary or she went to the medical provider because there was actually no report reviewed by you?
*311 THE WITNESS: Correct.
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THE COURT: But were you concerned in a way in evaluating the credibility of the complainant who said this is what happened and then there was actually beyond her statement that it had no medical report provided? You don’t know whether there was any medical treatment sought. Were you concerned about her credibility in following up on that or not following up on it?
THE WITNESS: That’s—
THE COURT: Because you were assessing credibility weren’t you?
THE WITNESS: I am. That is one piece of my determination, looking at all of the information that was provided in the packet. So there was enough another sufficient information that was not a key point for me.83
Prior to the hearing, Doe submitted questions which would have challenged the medical report’s existence in a way which Ms. Feldbaum herself admitted was absent from the investigative packet. Therefore, I find, at this preliminary stage, that Doe has demonstrated a likelihood of success on the merits of his. due process claim premised on Penn State’s significant and unfair deviation
Second, and again owing to the particular circumstances of this case, I find that Doe has shown that (1) a deviation from Penn State’s policy concerning the production of the investigative packet to the hearing panel, and (2) that Penn State’s redactions of Doe’s Response before the Title IX hearing panel and subsequent limitation of oral testimony may have worked in conjunction to violate his right to due process. As noted by the Supreme Court of the United States, “[a] fundamental requirement of due process is ‘the opportunity to be heard.’ It is an opportunity which must be granted at a meaningful time and in a meaningful manner.”
The November 3, 2016 version of the Code of Conduct stipulates the following:
The hearing authority will be permitted at least five business days to individually review the Investigative Packet. During this time, they may submit additional questions to the Investigator or request additional follow up by the investigator. If new information is acquired by the Investigator, both parties will be permitted to review this new information and respond within an appropriate amount of time, to be determined within the discretion of the investigator.88
Q. Well, ma’am, why don’t you just go up a little to J and where J defines what the investigative packet is. “Which will include the relevant information collected and any relevant written responses to the charges.” Relevant written responses to the charges are what the complainant and' the respondent submit. Correct?
A. Correct.
Q. Those are included—that investigative packet includes the investigative report, the 77 pages and the complainant and respondent—
A, Correct.
Q. So isn’t it'a fact, ma’am—if I have to go through the—isn’t it a fact that the panel did not receive the investigative packet as defined by Penn State's policies and procedures- until the day before?
A. Correct.
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Q, They - got 'that the day before, hours before the hearing. Correct?
A. A day before.
[[Image here]]
Q. Okay. So they got it the day before. They got it on June 5th. You would agree with me, ma'am, that is a violation of J(ii),.is it not, ma’am?
A, A violation?
Q. -Yeah, It violates the rule. The hearing authority would be permitted at least five, business days to individually review the investigative packet. That did not happen here, did it?
A. No, that did not happen.89
This delay, or deviation from the Penn State procedure, is troubling given that the Title IX decision panel chair, Jamey Perry, admitted-during the preliminary injunction hearing that he knew nothing about the case itself prior to receiving documentation from the case manager.
Beyond an admitted deviation from the policy allowing the Title IX decision panel five days to review and reflect upon a Respondent’s Response to the Charge and Sanction Notification, Doe alleges that he was further deniéd a meaningful opportunity to respond through both the significant redactions to his June 1, 2017 Response to the Charge and Sanction Notification and the Subsequent limitation of his testimony at the June 6, 2017 hearing.
I note further that this function has a funneling. effect whereby information deemed, irrelevant by the Investigator, an allegedly neutral party, is thereafter, disallowed from submission to the Title IX decision panel—the ultimate, and I believe proper, arbiter of both relevance and the accused’s fate. Indeed, during the hearing held before this Court, Mr. Perry, the chair of the Title IX Decision Panel, stated the following concerning the limitation which these redactions placed on Doe:
Q. Well, let me ask you this. Do you recall my client attempting to give you background information and that you cut him off and stopped him?
A. I recall that. I explained to him periodically throughout the proceedings that any information he is providing needs to be a part of the investigative packet and relevant to the charges at hand.95
Within this framework, it is therefore easy to foresee that an errant relevancy determination by the. Investigator may result in the erroneous deprivation of a private interest by preventing, , in totality, the disclosure .of otherwise relevant information.
Based on the above deviations in conjunction with what I view as the questionable role of the Investigator in redacting information, I find that Doe has demonstrated the necessary showing of likelihood of success on the merits of his due process claim.
B. Plaintiff Has Demonstrated Immediate Irreparable Harm.
Having - determined that Doe has made the necessary showing of success on the merits of his due process claim, I must now address the second of the “most critical” gatekeeping factors—immediate irreparable harm.
In Reilly v. City of Harrisburg, the Third Circuit quoted the Honorable Frank H. Easterbrook of the United States Court
How strong a claim on the merits'is enough depends on the balance of the harms: the more net harm an injunction can prevent, the'Weaker the plaintiffs claim on the merits can be while still supporting some preliminary relief.99
Here, I find that issuance of injunctive relief can prevent the imposition of serious net harm. Specifically, I conclude that, contrary to the assertions of Penn State and given the broad language of the sanction issued by the Title IX decision panel, the harm Doe would suffer absent some preliminary relief is real, immediate, and irreparable.
First, while Penn State argues that suspension from the joint program is for a mere two years, the exact language of the sanction recommends his exclusion as long as'[Roe] is a participant in the pro-gramA
Second, given the competitive nature of medical school applications and what he avers are the mandatory disclosures required for admission to an alternative medical school, Doe would essentially be without means to mitigate this - harm by securing acceptance into another medical program, and, if he intends to proceed with his goal of hecoming a doctor, would essentially be forced to await his return to full participation in the program. At the hearing held by this Court, Doe explained with specificity the conundrum in which he finds himself absence preliminary relief:
Q. You indicated that you would not be ' able to get to medical school based on this? Why? Tell the Court why.
A. The only reason I believe—the reason I believe I could not get to medical school is with this institution—this is termed an institutional action. And when I apply for medical school, I have to indicate if I was ever subjected to any institutional action and I have to explain the institutional action, of course.
And as far as I know any suspension, especially for a sexual misconduct, is pretty much I will be—I will—as I heard from experts or people who are ex medical admissions officers that they basically said if you have any sexual misconduct or any institutional.102
Finally, even if this limitation on acceptance into an alternative medical school did not exist and I were to accept Penn State’s assertion that a gap of only two years will result, Doe would still be irreparably harmed by the imposition of this sanction. In Doe v. Middlebury College, the United States District Court for the District of Vermont found that immediate irreparable harm existed where “plaintiff would have to explain, for the remainder of his professional life, why his education either ceased prior to completion or contains a gap.”
C. The Balance of Harms Weighs in Favor of Injunctive Relief.
Having found that the most critical factors concerning the issuance of injunc-tive relief have been satisfied, the Court must now consider the final two factors of this conjunctive test—the balance of harms and the public interest. The third factor requires that I weigh the interests and relative harm of the parties, i.e. “the potential injury to the plaintiff if an injunction does not issue versus the potential injury to the defendant if the injunction is issued.”
I generally agree with that contention. However, in the instant matter, Doe has shown that the absence of immediate relief during the pendency of the litigation will work irreparable harm to his professional career and advancement. Given that this harm is caused by a constitutional violation on which Doe has shown the necessary likelihood of success, I find that it outweighs that inflicted on Penn State. Furthermore, to the extent that Penn State argues that this factor is in its favor because of the its further need to protect its students and Roe, I note that, during the pendency of the investigation, Doe remained (1) on campus, (2) in the Penn State-Thomas Jefferson program, and (3) separated from Ms. Roe, without incident. I have no reason to believe that this status quo
The final factor considers “whether there are policy considerations that bear on whether the order should issue.”
IV. CONCLUSION
Based on the above reasoning, injunctive relief is appropriate and will be granted in the, instant matter. Therefore, Penn State shall immediately permit and assist the Plaintiff, John Doe, in registering for classes necessary for participation in the Penn State-Jefferson seven (7) year premed program for the Fall 2017 Semester which begins on August 21,2017. ■
Said registration and participation by Doe is to be effectuated in accordance with Penn State’s practice, utilized during the prior academic year, of separating Doe and Roe.
An appropriate Order follows.
. This program is a highly competitive, accelerated seven year program in which students must complete three years at Penn State, followed by four years at Thomas Jefferson in Philadelphia. See ECF No. 31-6, at 3.
. Here, Doe and Jane Roe vigorously disagree about what happened during the incident in question on September 7, 2016. However, despite this disagreement, the facts surrounding Defendant The Pennsylvania State University’s handling of the complaint, the true subject of this litigation, are largely undisputed.
. See ECF No. 31-6. at 30.
.' Id.
. Id. at 30, 33.
. See ECF No. 31-7.
. Compl. (ECF No. 1) ¶ 74, at 25.
. Id. ¶ 76, at 26.
. Id. ¶ 77, at 26.
. Id. ¶ 78, at 26.
. Id. ¶ 79, at 26-27.
. Id. The document online on September 23, 2016 was identified as the “Code of Conduct and Student Conduct Procedures, Revised 4/25/2016”. Compl. (ECF No. 1) ¶ 80, at 27.
. Compl. (ECF No. 1) ¶ 81-82, at 27-28.
. See Preliminary Injunction Hearing Transcript, Volume II (ECF No. 43) at 150:15-24.
. Compl. (ECF No. 1) ¶ 83, at 28.
. Id. ¶ 84, at 28.
. Id. If 86, at 29.
. Id. ¶ 87, at 29.
. Id. ¶ 88, at 29.
. Compl. (ECF No. 1) ¶ 88, at 29.
. Id. ¶ 89, at 30.
. Id. ¶ 90, at 30.
. Id. ¶¶ 90-91, at 30.
< ■ Compl. (ECF No. 1) ¶ 97, at 32;, see also John Doe’s Unredacted Response to the Preliminary Investigation Report (Defs,’ Exhibit 2).
. See John Doe’s Unredacted Response to the Preliminary Investigation Report (Defs.; Exhibit 2).
. See Pennsylvania State University Office of Sexual Misconduct Prevention and Response Investigative Report (ECF No, 31-6), Attachment J, at 65-67,
. Compl. (ECF No. 1) ¶ 98, at 32.
. See Pennsylvania State-University Office of Sexual Misconduct Prevention and Response Investigative Report (ECF No. 31-6), at 23-26. '
. Compl. (ECF No. 1) ¶ 101, at 33.
. See Pennsylvania State University Office of Sexual Misconduct Prevention and Response Investigative Report (ECF No, 31-6), at 26.
. Id.
. See generally id.
. See May 11, 2017 Email Concerning Charges and Sanctions Notification (ECF No. 11-7).
. id,
. Compl. (ECF No. 1) ¶ 103, at 33. Doe specifically stated that, at the September 23, 2016 meeting with Matic, he was directed to find a copy of the "Office of Student Code of Conduct and Student Conduct 4/25/2016” procedures online. Despite meeting with administrators and staff regarding the alleged incident more than a dozen times thereafter, he was not informed until the last May 1, 2017 that the procedures had been revised and reissued nearly 6 months prior on November 3, 2016. Compl. (ECF No. 1) ¶ 105, at 34.
. Cf. John Doe’s June Í, 2017 Un-redacted Response to Charge and Sanction Notification (ECF No. 11-9) with John Doe’s Redacted Response to Charge and Sanction Notification (ECF No. 11-10).
. See May 23, 2017 Email from Karen Feldb-aum to John- Doe and Marybeth Sydor Report (Defs.’ Exhibit 6).
. Compl, (ECF No. 1) ¶ 118, at 39.
. Id. ¶ 121, at 40.
. Questions for Complaint (ECF No. 11-11).
. Compl. (ECF No. 1) ¶ 125, at 42 (emphasis added). :
. See Email from Karen Feldbaum to Doe on June 6, 2017 (Defs.' Exhibit 10).
. See Title IX Decision Panel (ECF No. 11-12).
. Id.
. Doe’s Appeal of Title IX Decision Panel Findings (ECF No. 31-11).
. Id.
. Penn State’s June 27, 2017 Appeal Denial Letter (ECF No. 11-8).
. ECF No. 1.
. Id.
. ECF No. 20.
. ECF No. 11.
. ECF Nos. 12, 31, & 33.
. ECFNo. 34.
. Instant Air Freight Co. v. C.F. Air Freight. Inc., 882 F.2d 797, 800 (3d Cir. 1989) (internal quotations and citation omitted).
. B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 302 (3d Cir. 2013); Crissman v. Dover Downs Entm’t, Inc., 239 F.3d 357, 364 (3d Cir. 2001); Beattie v. Line Mountain Sch. Dist., 992 F.Supp.2d 384, 391 (M.D. Pa. 2014).
. 858 F.3d 173 (3d Cir. 2017).
. Id. at 179.
. Id.
. Kos Pharmaceuticals Inc. v. Andrx Corporation, 369 F.3d 700, 718 (2004) (citing University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)).
. Plaintiff has not briefed, and the Court will therefore not opine on, the likelihood of success on the merits of the remaining claims within his Complaint.
. This merits determination is only for purposes of the instant motion for injunctive relief, and, as such, the Court is not bound by its findings ■ and conclusions in deciding a
. U.S. Const. Amend. XIV.
. Goss v. Lopez, 419 U.S. 565, 572, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (White, J.).
. Id. at 576, 95 S.Ct. 729.
. Id. at 577, 95 S.Ct. 729 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).
. 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
. Goss, 419 U.S. at 579, 95 S.Ct. 729.
. Osei v. Temple University of Commonwealth System of Higher Educ., Civil Action No. 10-CV-2042, 2011 WL 4549609, at *8 (E.D. Pa. Sept. 30, 2011)(quoting Gorman v. University of Rhode Island, 837 F.2d 7, 14 (1st Cir. 1988)).
. See Pl.’s Br. in Supp. (ECF No. 12), at 7-10.
. See Defs.’ Br. in Opp. (ECF No. 31), at 19-23. See also Code of Conduct, revised 11/3/2016 (ECF No. 31-4) at V.D.1.j.vi ("the Complainant and Respondent may suggest questions to be posed to the other party by and through the Panel. Proposed questions will be submitted to the Panel/hearing authority, which will review the proposed question(s) for relevance and appropriateness before they are posed to the other party.").
. Goss, 419 U.S. at 583, 95 S.Ct. 729.
. 884 F.Supp.2d 223, 251 (E.D. Pa. 2012).
. Pl.’s Br. in Supp. at 8.
. See Furey, 730 F.Supp.2d [390] at 396-97 [(2010)] (citing Winnick v. Manning, 460 F.2d 545, 550 (2d Cir. 1972)).
. Id. at 397.
. Id.
. See Code of Conduct, revised 11/3/2016 (ECF No. 31-4) at V.D.l.j.vi.
. Id. at V.D.1.j.vii.
. Compl. (ECF No. 1) ¶ 125, at 42.
. Indeed, this Opinion should not be read to find that this method of cross examination in toto offends due process. See Doe v. University of Cincinnati, 223 F.Supp.3d 704, 711 (S.D. Ohio. 2016)(fmding that, although this format of cross-examination may not constitute a due process violation, complainant’s failure to attend and be subject to such evaluation constituted a violation).
. See Pennsylvania State University Office of Sexual Misconduct Prevention and Response Investigative Report (ECF No. 31-6), at 26; John Doe’s June 1, 2017 Response to the Charge and Sanction Notification (ECF No. 11-9).
. Compl. (ECF No. 1) ¶ 125, at 42.
. See Preliminary Injunction Hearing Transcript, Volume I, (ECF No. 44), at 149:21— 150:6; 150:17-151:5.
. See Doe v. University of Cincinnati, 223 F.Supp.3d 704, 711 (S.D. Ohio. 2016)(finding that, although this format of cross-examination may not constitute a due process violation, complainant's failure to attend and be subject to such evaluation constituted a violation).
. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)(quoting Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914)).
. Gorman v. University of Rhode Island, 837 F.2d 7, 13 (1st Cir. 1988).
. Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 617, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993).
. See Code of Conduct, revised 11/3/2016 (ECF No. 31-4) at V.D.l.j.ii.
. ' See Preliminary Injunction Hearing Transcript, Volume I, (ECF No. 44), at 94:23-95:13; 96:19-21; 96:24-97:6; see also Preliminary Injunction Hearing Transcript, Volume II, (ECF No. 43), at 15:2-6 (Perry admitting that receiving part of the investigative packet the day before would be a violation of this procedure).
, See Preliminary Injunction Hearing Transcript, Volume II, (ECF No, 43), at 13:22— 14:2 ("I wouldn’t know what the case was until. I received the investigative information.’’).
. Pl.’s Reply Brief (ECF No. 33) at 4-6..
. See Def.’s Br, at 20 (citing Code of Conduct, revised1 11/3/2016 (ECF'No. 31-4) § V(D)(l)(j)(vii)).
. See Preliminary Injunction Hearing Transcript, Volume II, (ECF No. 43), at 130:13— 14; 133:19-20; 136:25-137:2; 137:14-16.
. Pl.’s Reply Brief (ECF No. 33) at 4-6.
. See Preliminary Injunction Hearing Transcript, Volume II, (ECF No, 43), at 33:17-23 (emphasis added)..
. See generally Reilly, 858 F.3d 173.
. See PL's Br. at 27-29.
. See Defs.’ Br. at 33.
. Reilly, 858 F.3d at 179 (quoting Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009)).
. See Title IX Decision Panel Opinion (ECF No. 11-12).
. As noted above, this program is a highly competitive, accelerated seven year program in which students must complete three years at Penn State, followed by four years at Thomas Jefferson in Philadelphia. See ECF No. 31-6, at 3.
. See Preliminary Injunction Hearing Transcript, Volume II, (ECF No. 43), at 124: 9-21.
. Civil Action No. 15-CV-192, 2015 WL 5488109, at *3 (D. Vt. Sept. 16, 2015).
. See Doe v. University of Cincinnati, 223 F.Supp.3d 704, 712 (S.D. Ohio. 2016)(finding that a suspension of one year constitutes irreparable harm); King v. DePauw Univ., Civil Action No. 14-CV-70, 2014 WL 4197507, at *13 (S.D. Ind. Aug. 22, 2014)(finding that a gap or a senior-year transfer on his record constitutes irreparable harm).
. Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 596 (3d Cir. 2002).
. Defs.’ Br. at 34.
. The Court finds that allowing Doe to reg- . ister for classes and continue in the Penn State-Thomas Jefferson program this semester would not alter the status quo, as he was a participant in the preceding two semesters. As such, Doe must nqt meet a heightened burden of irreparable harm. See Bennington Foods LLC v. St. Croix Renaissance, Group, LLP, 528 F.3d 176, 179 (3d Cir. 2008) ("[W]here the relief ordered by the preliminary injunction is mandatory and will alter the status quo, the party seeking the injunction must meet a higher standard of showing irreparable harm in the absence of an injunction.”).
. Indeed for the comfort and safety of all parties, this continued practice of separating the parties is needed, and based on the repre-sentatións of Ms. Matic during the hearing, feasible. See Preliminary Injunction Hearing, Volume II, (ECF No. 43), at 152:20-154:19.
. See King, 2014 WL 4197507, at *14 (finding that "if [defendant university] ultimately wins this suit, the harm it will have suffered by King’s court-ordered return to campus this fall, while real, will not be as great as the harm King will have suffered if he is not permitted to return to campus but ultimately wins.”).
. Trefelner ex rel. Trefelner v. Burrell Sch. Dist., 655 F.Supp.2d 581, 598 (W.D. Pa. 2009) (quoting 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE § 2948.4 at 200-01 (2d ed. 1995)).
. Defs.’ Br. at 35 (quoting Palmer by Palmer v. Merluzzi, 868 F.2d 90, 95 (3d Cir. 1989) (citing Goss, 419 U.S. at 584, 95 S.Ct. 729)).
. See Doe v. University of Cincinnati, 223 F.Supp.3d at 712 (finding that a plaintiff has adequately shown that the issuance of an injunction is in the public interest where he has alleged a violation of his due process rights based on the university’s deviation from its own policies);, see also Knoch v. University of Pittsburgh, Civil Action No. 16-CV-970, 2016 WL 4570755, at *9 (W.D. Pa. Aug. 31, 2016) (finding this factor to be, at most neutral, because "[wjhile the public's interest in pursuing education free of constitutional violations is undeniable, (citation omitted), an educational institution’s authority to make disciplinary decisions without having to- resort to court intervention is a substantial public interest.”).
Reference
- Full Case Name
- John DOE v. The PENNSYLVANIA STATE UNIVERSITY, The Pennsylvania State University Board of Trustees, Eric J. Barron, individually and as agent for The Pennsylvania State University, Paul Apicella, individually and as agent for The Pennsylvania State University, Karen Feldbaum, individually and as agent for The Pennsylvania State University, Katharina Matic, individually and as Agent for The Pennsylvania State University
- Cited By
- 13 cases
- Status
- Published