812 F.2d 655 (11th Cir. 1987), 85-7675, Nash v. Auburn University

Docket Nº:85-7675.
Citation:812 F.2d 655
Party Name:David M. NASH and Donna C. Perry, Plaintiffs-Appellants, v. AUBURN UNIVERSITY, Frank G. Vice, J.T. Vaughan, H.C. Morgan and James E. Martin, individually and in their official capacities, Defendants-Appellees.
Case Date:March 16, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 655

812 F.2d 655 (11th Cir. 1987)

David M. NASH and Donna C. Perry, Plaintiffs-Appellants,


AUBURN UNIVERSITY, Frank G. Vice, J.T. Vaughan, H.C. Morgan

and James E. Martin, individually and in their

official capacities, Defendants-Appellees.

No. 85-7675.

United States Court of Appeals, Eleventh Circuit

March 16, 1987

Page 656

McPhillips, DeBardelaben & Hawthorne, Julian McPhillips, Griffin Sikes, Montgomery, Ala., for plaintiffs-appellants.

David R. Boyd, Balch & Bingham, Montgomery, Ala., Thomas D. Samford, III, Samford & Samford, Opelika, Ala., Joseph C. Espy, III, Melton & Espy, P.C., Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before RONEY, Chief Judge, CLARK, Circuit Judge, and DOYLE [*], Senior District Judge.

JAMES E. DOYLE, Senior District Judge:

Appellants Nash and Perry seek injunctive relief and damages under 42 U.S.C. Sec. 1983 for constitutional violations in their suspension from the Auburn University School of Veterinary Medicine on a charge of academic dishonesty. They brought this action on September 20, 1985, also alleging a pendent state law claim for breach of contract by wrongful suspension. After a hearing on September 25, appellants were granted a temporary restraining order, under which they were allowed to audit classes and to take the tests required of other students enrolled in the School of Veterinary Medicine. On October 18, 1985, the district judge conducted a hearing on appellants' motion for preliminary injunction, consolidated with a trial on the merits. On cross motions for summary judgment, the court granted summary judgment in favor of appellees. Nash v. Auburn University, 621 F.Supp. 948 (M.D.Ala.1985). The court later denied appellants' motion for an injunction pending appeal. Appellants ask us to reverse the district court's grant of summary judgment to appellees.

Page 657

On appeal, Nash and Perry make two arguments: that appellees engaged in constitutionally inadequate procedures which violated appellants' rights under the due process clause of the fourteenth amendment; and that the decision to suspend them was made without sufficient evidentiary support, in violation of their substantive due process rights under the fourteenth amendment.


Pursuant to 28 U.S.C. Sec. 1291, this court has jurisdiction over this appeal, as the district court's grant of summary judgment to appellees is a final judgment. Burkett v. Shell Oil Co., 487 F.2d 1308, 1314 (5th Cir.1973). 1 In our review we apply independently the standard a district court must apply to determine the appropriateness of summary judgment. East Park, Inc. v. Federal Insurance Co., 794 F.2d 616, 618 (11th Cir.1986). We have conducted an independent review of the record and have found that the appellees satisfactorily demonstrated to the district court that no genuine dispute exists as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); East Park, 794 F.2d at 618. Any factual inferences drawn from the evidence are viewed in the light most favorable to appellants, the non-moving party. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; East Park, 794 F.2d at 618. Likewise, any reasonable doubt about the facts is resolved in favor of the non-moving party. East Park, 794 F.2d at 618.

  1. Facts Relating to the Procedures

    Appellants were first-year students at the Auburn University School of Veterinary Medicine when the events occurred that form the basis of the claims in this lawsuit.

    1. The notice

    Appellants were advised in writing on June 6, 1985, that they were charged with a violation of the Student Code of Professional Ethics (the code) of the Auburn University School of Veterinary Medicine. By such notice they were given "at least 72 hours to prepare a defense for the charge of academic dishonesty, in that while taking examinations during 1984-1985 school year, information was allegedly obtained in an unethical manner." A hearing was scheduled for June 10, 1985, before the Student Board of Ethical Relations (the board).

    Appellants appeared with counsel at the June 10 hearing. Counsel objected that the June 6 notice was inadequate and too general to advise the appellants of the charge against them. He requested a more specific notice and one additional day to prepare their defense. Appellants consulted with counsel and they agreed to receive a restated charge the following day, with a hearing set for June 12, 1985. The following colloquy took place between appellants' attorney and the student chancellor of the board after the chancellor had taken a recess to seek advice from school officials:

    Chancellor: In view of the request by [plaintiffs' attorney] Mr. Meadows to have more of an opportunity and more time for consideration of specific charges and in view of the fact that specific charges were not stated in the letter and after review and counsel from Dr. Morgan and Dean Vaughan, it is ... decided that at least 48 hours shall be enough time, and 48 hours, if the accused and attorney ... feel that that's necessary. I ask them now if 48 hours is sufficient time?

    Plaintiffs Attorney: ... Mr. Vice, let me just ask. Am I to understand that we're having 48 hours from tonight with specific charges?

    ... If so, when will those charges be forthcoming?

    Chancellor: [T]he specific charges can be given to you tomorrow, June 11, 1985. The dean's office by 1:00. They will be in writing, typed form, and those will be the charges that you all will have to address. And the time for the hearing, if it's agreeable, and probably not agreeable

    Page 658

    ... the best possible time that I think that the next hearing should take place would be June 12, 1985, 6:45, 7:00 Wednesday night. Is that sufficient time?

    Plaintiffs Attorney: That's fine with me. Can I take just a moment more to ask them? (MEADOWS CONSULTED WITH NASH AND PERRY.)

    [T]hat's fine with us. 48 hours from tonight, which will be Wednesday night, June 12, at 6:45, here. That's fine. We'll be here.

    Chancellor: [S]ince the justices and accused are in agreement, are the witnesses also in agreement to that time? The nods are in agreement that Wednesday night will [sic] ... June 12, 1985, 7:00, in the Pathology Department. So, with that, we'll adjourn until Wednesday night, 7:00.

    Defendants' Exhibit 28 at 9.

    The following day each appellant received a written memorandum, dated June 11, 1985, advising them that they were charged with a violation of the code in "giving or receiving [a]ssistance or communication between students during the [a]natomy examination given on or about May 16, 1985." Included in the memorandum was a list of students and anatomy faculty witnesses who were expected to testify at the hearing in support of the charge against appellants.

    2. The hearing

    A disciplinary hearing before the board was held on June 12, 1985. Both Nash and Perry attended, in the company of their attorney. The hearing was conducted by the non-voting student chancellor of the board, in the presence of appellants, witnesses and student justices. There was no attorney for the board present. The chancellor allowed appellants' counsel to advise his clients during the hearing, but he was not permitted to participate in the proceedings. Appellants were to be allowed to question the adverse witnesses by directing their questions to the chancellor, who would then pose their questions of the witnesses.

    The June 12 hearing opened with statements by the witnesses in support of the charge against appellants. The witnesses also answered questions from the justices and appellants objected to the limited method of cross-examination allowed them. After all of the testimony was presented supporting the charge, appellants were granted a short recess and then given an opportunity to present their defense. Appellants were allowed to present statements responding to the charge against them and rebutting the testimony of the student and faculty witnesses. They brought witnesses in their behalf who also made statements to the board and answered questions of the justices. After all of the presentations, the board again questioned appellants and the witnesses.

    After the board completed its questioning, appellants were given the opportunity to question the opposing witnesses by submitting questions to the chancellor, who would then direct the questions to the witnesses. Appellants instead asked the board several questions. Appellants asked for a recess, which was denied by the chancellor, and the hearing was concluded.

    After deliberating in private, the board decided unanimously that appellants were guilty of the charge of academic dishonesty. The justices recommended that appellants be suspended from school, with the opportunity to apply for admission again in one year. Appellants were notified of the board's decision and recommendation.

    3. Nature of the tribunal

    In May, 1985 an undergraduate student at Auburn University was caught with a crib sheet during an examination, confessed to having cheated, and was suspended from school by an honor court. The university president reduced the sanction, and was publicly criticized by the Auburn chapter of the Association of University Professors and by the Auburn University student senate. In fact, the chair and seven members of the Auburn University Honor Committee resigned to protest the action of the university president. The episode in May was "emotionally charged," and concern

    Page 659

    over academic dishonesty persisted in the minds of many Auburn students and faculty members during June, 1985. There was no reference to the May incident at the board's June 10 or June 12 hearings on the charge...

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