Hart v. Ferris State College

• Decision Date: 08 March 1983
• Docket Number: No. G83-140 CA.,G83-140 CA.
• Citation: 557 F. Supp. 1379
• Parties: Dorothy HART, Plaintiff, v. FERRIS STATE COLLEGE, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

557 F. Supp. 1379

Dorothy HART, Plaintiff, v. FERRIS STATE COLLEGE, et al., Defendants.

No. G83-140 CA.

United States District Court, W.D. Michigan, S.D.

March 8, 1983.

Barbara A. Klimaszewski, William T. Street, Klimaszewski & Street, Saginaw, Mich., for plaintiff.

Steven L. Dykema, Mika, Meyers, Beckett & Jones, Grand Rapids, Mich., Karl Brevitz, Big Rapids, Mich., for Ferris State College.

OPINION

BENJAMIN F. GIBSON, District Judge.

This action seeks an injunction to prevent defendant Ferris State College from conducting a disciplinary hearing on the subject of plaintiff's arrest for the sale of illegal drugs. Plaintiff is a student at Ferris State. Defendant Ewigleben is the President of Ferris State, and defendant Peterson is the Hearing Officer, who is responsible for making and enforcing policies involving student discipline at the college. Plaintiff contends that if the hearing is held it will violate her constitutional rights to procedural and substantive due process and to equal protection of the laws, and that she will suffer irreparable harm. This Court previously issued a Temporary Restraining Order and an extension thereof, and now considers the plaintiff's request for a preliminary injunction.

FACTS

Plaintiff was arrested on January 14, 1983, and charged with selling a total of 12.4 grams of marijuana in two separate transactions to an undercover agent of the Mecosta County Sheriff Department. In a letter of February 3, 1983, plaintiff was charged with off-campus violations of the college's "Misconduct and Discipline Policy and Procedures" statement, namely, being an individual "in violation of federal, state, or local laws, which materially and adversely affects the individual's suitability as a member of the College community."¹ The letter indicated that a college administrative hearing would be held. On February 11, 1983, plaintiff appeared with counsel at a conference with the Hearing Officer designated as a "pre-hearing," at which the procedures for the disciplinary hearing were explained and the potential sanctions, including suspension and expulsion, were described. At this "pre-hearing," plaintiff requested an adjournment of the hearing until after the resolution of the criminal charges, which request was denied.

Plaintiff is a senior at Ferris State and is scheduled to complete the requirements for graduation in the spring quarter which begins March 1, 1983. She alleges that if prevented from doing so this term, she will be unable to complete her course requirements for graduation until the spring quarter of 1984, when the classes she is required to complete will be offered again. Plaintiff further states that the program in which she is enrolled, Printing Management, is the only program of its kind in the area, and that if excluded from this program at Ferris State she will be unable to enroll in a comparable program. She alleges that she will suffer permanent and irreparable harm to her academic record and personal reputation if she is deprived of her constitutional rights in connection with the proposed disciplinary hearing.

The constitutional rights with which plaintiff is concerned are primarily rights of procedural due process. In particular, plaintiff claims that the College's hearing procedure will deprive her of her alleged rights to:

a) the disposition of criminal charges against plaintiff prior to a disciplinary hearing by the College;

b) a hearing at which plaintiff receives the effective assistance of counsel, including the right to examine witnesses and take an active role in the proceedings;

c) a hearing at which plaintiff will have an opportunity to confront her accusers and examine their testimony, with the assistance of counsel;

d) a hearing which is open to the public;

e) remain silent without being penalized for her silence, as guaranteed by the Fifth Amendment.

Plaintiff also claims that the threatened imposition of penalties for off-campus acts which do not affect the security or functioning of the college in any respect is a violation of her right to remain in a state college, a protected property and liberty interest under the substantive due process guaranteed by the Fourteenth Amendment. She further claims an equal protection violation in that she is treated differently from non-student defendants of illegal drug charges, and she also claims a violation of the Michigan Open Meetings Act.

STANDARD FOR PRELIMINARY INJUNCTIONS

In deciding whether a preliminary injunction is appropriate, four factors are considered: (1) the likelihood of success on the merits, (2) the irreparable nature of the harm to the party seeking injunctive relief, (3) the balance of the injury as between the parties, and (4) the impact of the ruling on the public interest. E.g., Mason County Medical Ass'n v. Knebel, 563 F.2d 256 (6th Cir.1977). The wording of the first factor in the decisions of the Sixth Circuit has not been totally consistent. The Court has sometimes referred to "a possibility of success on the merits." SEC v. Senex Corp., 534 F.2d 1240, 1241 (6th Cir.1976). That articulation has been criticized as "unfortunate terminology," and the Court later required plaintiffs to demonstrate "a strong or substantial likelihood or probability of success on the merits." Mason County Medical Ass'n, 563 F.2d at 261, n. 4. More recently, the Court addressed any apparent inconsistency by quoting with approval from an opinion of District Judge Feikens in Metropolitan Detroit Plumbing & Mechanical Contractors Ass'n. v. HEW, 418 F.Supp. 585, 586 (E.D.Mich.1976):

This apparent disparity in the wording of the standard merely reflects the circumstances that no single factor is determinative as to the appropriateness of equitable relief. In addition to assessing the likelihood of success on the merits, the court must consider the irreparability of any harm to the plaintiff, the balance of injury as between the parties, and the impact of the ruling on the public interest. In general, the likelihood of success that need be shown will vary inversely with the degree of injury the plaintiff will suffer absent an injunction .... It thus appears that the precise wording of the standard for the likelihood of success on the merits is not as important as a realistic appraisal of all the traditional factors weighed by a court of equity. A balancing is required, and not the mechanical application of a certain form of words.

Roth v. Bank of Commonwealth, 583 F.2d 527, 537-38 (6th Cir.1978), cert. dismissed, 442 U.S. 925, 99 S.Ct. 2852, 61 L.Ed.2d 292 (1979).

The Roth opinion also noted that the Sixth Circuit has cited with general approval the oft-quoted test of Judge Jerome Frank in Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1953):

To justify a temporary injunction it is not necessary that the plaintiff's right to a final decision, after a trial, be absolutely certain, wholly without doubt; if the other elements are present (i.e., the balance of hardships tips decidedly toward plaintiff), it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation. (footnote omitted)

The Court has recently emphasized that this alternate or "balance of hardships" test, the purpose of which is to underscore the flexibility that traditionally has characterized the law of equity, does not eliminate the irreparable harm requirement. Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir.1982).

With these standards in mind, this Court proceeds to consideration of plaintiff's likelihood of success on the merits.

PROCEDURAL DUE PROCESS

It is undisputed that the threat of suspension or expulsion implicates plaintiff's property and liberty interests in public education and reputation, and that such interests are within the purview of the due process clause of the Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Dixon v. Alabama State Board of Education, 294 F.2d 150, cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961); Nzuve v. Castleton State College, 133 Vt. 225, 335 A.2d 321 (1975). The issue is what procedures are constitutionally required in order that the deprivation of such interests not be suffered without due process of law. "Once it is determined that due process applies, the question remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

The seminal opinion discussing the dictates of due process in this context is Dixon. Indeed, the Supreme Court has described the opinion as a "landmark decision." Goss, 419 U.S. at 577, n. 8, 95 S.Ct. at 738, n. 8. After holding that due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct, the Dixon court elaborated as follows:

For the guidance of the parties in the event of further proceedings, we state our views on the nature of the notice and hearing required by due process prior to expulsion from a state college or university. They should, we think comply with the following standards. The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion under the regulations of the Board of Education. The nature of the hearing should vary depending upon the circumstances of the particular case. The case before us requires something more than an informal interview with an administrative authority of the college. By its nature, a charge of misconduct, as opposed to a failure to meet the scholastic standards of the college, depends upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses. In such circumstances, a hearing which gives the Board or the administrative

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