Foo v. Trustees, Indiana University

• Decision Date: 28 June 1999
• Docket Number: No. IP 97-960-C-T/G.,IP 97-960-C-T/G.
• Citation: 88 F.Supp.2d 937
• Parties: Kenneth FOO, Plaintiff, v. The TRUSTEES OF INDIANA UNIVERSITY, a/k/a Indiana University; John Walda, In his representative and official capacities as President of the Trustees of Indiana University; Myles Brand, In his representative and official capacities as President of Indiana University; Richard McKaig, Individually and in his representative and official capacities as Dean of Students; Robert Allen Weith, Individually and in his representative capacities as Associate Director of Student Ethics and Resident Life; Lou Moir, In her representative and official capacities as Presiding Officer of the Review Board; Defendants.
• Court: U.S. District Court — Southern District of Indiana

88 F.Supp.2d 937

Kenneth FOO, Plaintiff, v. The TRUSTEES OF INDIANA UNIVERSITY, a/k/a Indiana University; John Walda, In his representative and official capacities as President of the Trustees of Indiana University; Myles Brand, In his representative and official capacities as President of Indiana University; Richard McKaig, Individually and in his representative and official capacities as Dean of Students; Robert Allen Weith, Individually and in his representative capacities as Associate Director of Student Ethics and Resident Life; Lou Moir, In her representative and official capacities as Presiding Officer of the Review Board; Defendants.

No. IP 97-960-C-T/G.

United States District Court, S.D. Indiana, Indianapolis Division.¹

June 28, 1999.

COPYRIGHT MATERIAL OMITTED

Stephanie J. Hahn, Kendall Law Office, Indianapolis, IN, for plaintiff.

Cory Brundage, Ice, Miller, Donadio & Ryan, Indianapolis, IN, for defendant.

ENTRY DISCUSSING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TINDER, District Judge.

This matter comes before the court on the Motion for Summary Judgment filed jointly by all the Defendants. Plaintiff, Kenneth Foo, claims that Defendant Indiana University ("I.U.") and the other Defendants, all of whom are affiliated with I.U., violated his constitutional rights in connection with his suspension and expulsion from I.U. Specifically, he claims the Defendants discriminated against him on the basis of his race and national origin in violation of the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983. He also claims that the Defendants afforded him neither the substantive nor the procedural due process to which he was entitled under the Fourteenth Amendment and that the deprivation of these rights also violated § 1983. The Defendants move for summary judgment as to each of Mr. Foo's claims. The court, having considered the motion and submissions of the parties, finds as follows.

I. Background Facts

Mr. Foo was a student at I.U. from 1990 until his expulsion in 1996. He is a male of Chinese descent and was born in the Republic of Singapore in 1967.

Mr. Foo's first disciplinary sanction at I.U. arose from an incident that occurred March 26, 1994. Catherine Spohnholtz, a staff member of Mr. Foo's residence hall, Foster Residence Center, filed a "Residence Hall Report Form" stating that Mr. Foo was in a hallway with an open container of beer. (Foo Dep. at 103-05; Foo Dep. Ex. 2.) The report further states that as Ms. Spohnholtz led Mr. Foo to the bathroom to dispose of the beer, Mr. Foo repeatedly tried to drink the remainder of the beer. (Id.) At an I.U. Judicial Conference on April 19, 1994, Mr. Foo was charged with violating the Code of Student Ethics ("Code") and the Handbook for Residence Hall Living ("Handbook") during the March 26 incident. (Foo Dep. at 107-12; Foo Dep. Ex. 3.) On April 8, Mr. Foo received notice of the Conference and the charges against him. (Id.) At the Conference, Mr. Foo admitted he violated the Code and Handbook rule prohibiting the use or possession of alcoholic beverages in a residence hall. (Foo Dep. at 112.) In a letter dated April 22, 1994, the Foster Residence Center Judicial Board informed Mr. Foo that it had concluded that he had violated the rule as charged and informed him of his right to appeal the decision. (Foo Dep. Ex. 4.) The Board recommended to the Dean of Students, and the Dean accepted, that Mr. Foo complete an "Alcohol IQ" computer program as a sanction. (Foo Dep. at 112; Foo Dep. Ex. 1.) Mr. Foo completed the computer program. (Id.)

The next disciplinary proceedings I.U. instigated against Mr. Foo related to a November 29, 1994 incident that occurred in a residence hall cafeteria. Mr. Foo threw his food tray against a wall, breaking the dishes and glasses on the tray. (Foo Dep. at 79; Foo Dep. Ex. 5.) Mr. Foo told the cafeteria staff that he "just felt like destroying something." (Id.) A member of the cafeteria staff filed a Residence Hall Report Form about the incident. (Id.)

On December 1, 1994, Wil McCall, the Coordinator of Residence Life of Foster Residence Center, sent a letter to Mr. Foo stating that because of the incident in the cafeteria, he was being charged with violating certain provisions in the Code and Handbook. (Foo Dep. Ex. 6.)² At the scheduled Judicial Conference with Mr. McCall, Mr. Foo admitted that he had thrown the tray. (Foo Dep. at 119-20.) Mr. McCall subsequently recommended to the Dean of Students, and the Dean accepted, that Mr. Foo be placed on disciplinary probation until April 1, 1995. (Id. at 121-22; Foo Dep. Ex. 7.) Mr. Foo was informed of the decision by a letter dated December 12, 1994. (Id.) The letter also stated: "If you are involved in any further acts of misconduct, or violate any conditions of the probation, additional charges and disciplinary sanctions, including suspension or expulsion from the University, may be imposed." (Id.) The letter further explained that the sanction would become binding unless Mr. Foo requested an appeal hearing. (Id.) Mr. Foo did not request a hearing. (Foo Dep. at 123.)

In the summer of 1995, Mr. McCall received a copy of a police report which indicated that Mr. Foo had been held on a 72-hour emergency detention at the Bloomington Hospital Crisis Care Unit in June. (McCall Aff. ¶¶ 9-10; McCall Aff. Ex. cc.) The report stated that the police had been requested to transport Mr. Foo to the Unit because Mr. Foo had made suicidal remarks to his mother and other people on campus. (Id.) Specifically, the report stated that Mr. Foo threatened to shoot himself in the head with a gun and also spoke of "getting some people in a car and then driving over a cliff." (Id.) The report stated that when the police came to Mr. Foo's room at Eigenmann Residence Hall, they found glass from broken bottles on his floor. (Id.) The report said that after bringing Mr. Foo to the Unit, they searched his car and dorm room pursuant to a search warrant and found three hundred rounds of firearm ammunition, information booklets on handguns, an order form for incendiary ammunition, and a completed order form for a "sniper training and employment manual." (Id.) The report also stated that the police recovered an Intratec 9mm Lugar Tec-DC9 (a semiautomatic handgun) with one clip, which Mr. Foo had stored in a safe deposit box at a local bank. (Id.)

Mr. McCall was told that Mr. Foo had left campus after his release from the Unit, but that he would be attending fall classes. (McCall Aff. ¶ 11.) Mr. McCall decided to charge Mr. Foo with violations of the Code and Handbook. (Id.) When Mr. Foo returned to campus in late August 1995, Mr. McCall repeatedly called Mr. Foo and Mr. Foo also called Mr. McCall.³ (Id.; Foo Dep. at 270.)⁴ On August 28 1995, they came into contact. (McCall Aff. ¶ 11.) Mr. McCall told Mr. Foo about the charges and the need for a Conference. (Id.) Mr. Foo indicated that he would prefer to have the Conference quickly and it was scheduled for that afternoon. (Id.)

At the August 28 Judicial Conference, Mr. McCall gave Mr. Foo a form with three headings; the first heading said, "CODE OF STUDENT ETHICS," the next said, "Judicial Conference/Informal Disposition," and the last said, "Waiver of Right to Three-Day Notification." Mr. McCall told him: "You have to sign this so that we can have our talk today." (Foo Dep. at 284, 286.) Mr. McCall was "adamant" that they talk that day. (Id. at 288.) Mr. Foo signed the waiver form, which read:

In order that my case be expedited, I hereby waive my right for a three-day notification of a judicial conference as provided for under section D, 3b, of the Student Code of Ethics. This waiver pertains to the conference on the charge(s) of: III B 20A(1) & (2) which allegedly occurred on June 12, 1995[at] Eigenmann Center.

(Foo Dep. Ex. 15.)

At the Conference, Mr. Foo received a copy of a letter dated August 21 from Mr. McCall. (McCall Aff. ¶ 12, Ex. dd.)⁵ The letter explained that he was being charged with violating, among others, the Code provision prohibiting a student from making "an express or implied threat to interfere with an individual's personal safety" and the Handbook provision indicating that "activities that result in disturbance or distress to others ... are prohibited." (Foo Dep. Ex. 14.) The letter continued: "Specifically, it is being charged that on June 12, 1995, at 7:00 p.m. at Eigenmann Residence Center, you made threats in reference to a handgun. Additionally you made threats of suicide." (Id.) The letter also stated that a Judicial Conference had been scheduled and, "[a]t the conference, a decision about responsibility may be determined and if appropriate, a sanction may be imposed." (Id.) At the Conference, Mr. McCall said to ignore the letter when Mr. Foo received it in his mailbox; he said it was moot because they had talked. (Foo Dep. at 264, 296-97.)

At the Conference, Mr. McCall asked Mr. Foo questions about the June 12 incident and showed him a copy of the police report. (McCall Aff. ¶¶ 13-14; Foo Dep. at 292-93, 298-99.) When asked about the allegations in the August 21 letter, Mr. Foo maintained that "nothing happened" and he "didn't do anything wrong." (Foo Dep. at 295, 299.) Mr. Foo also explained that he had been in the hospital and had switched doctors and there had been "issues" with his medication. (McCall Aff. ¶ 14; Foo Dep. at 298.) Mr. McCall told him that "even though nothing happened, we still need to make an arrangement." (Foo Dep. at 296.) He said, "You've got to go see a doctor; you've got to take your medicine; and you've got to come back to sign this contract...." (Id.) Because he did not feel like he had a choice, Mr. Foo said he would comply. (Id.)

Mr. Foo testified that the August 28 Judicial Conference was more informal than the earlier Judicial Conference that took place between Mr. McCall and Mr. Foo concerning the incident in the cafeteria. (Id. at 288-89.) Mr. Foo felt that the...