Dodge City can’t dodge due process and free speech lawsuit

By August 24, 2018

Earlier this month, a federal judge denied Dodge City Community College’s motion to dismiss student Lyle VanNahmen’s due process and First Amendment claims against the Kansas institution.

In the spring of 2017, DCCC charged VanNahmen with violating the college’s “Behavior Misconduct” and “Assault” policies. But according to VanNahmen’s complaint, DCCC failed to provide him with adequate notice of what he allegedly did to earn those charges. Moreover, the complaint alleges, the college punished him merely for exercising his constitutional right to freedom of speech — specifically, criticizing the college president and a proposed land deal involving the college. After the finding against him and a four-year suspension was affirmed by an administrator on appeal, VanNahmen sued the school.

The charge letter VanNahmen received on March 5, 2017 stated only that he was alleged to have violated the provisions below (underlined in original to indicate language applicable to the charges against VanNahmen) “on or about December 5, 2017 and on or about December 8, 2017,” apparently meaning the same dates of the previous year.

Behavior Misconduct (page 78), states “Students are not to exhibit behavior that threatens any person, harms, or causes to place in harm any person or conduct themselves in a lewd, indecent, obscene, offensive, or disorderly manner.”

Assault (page 80), states “Any actual or threatened interference, physical attack or sexual attack, physical or verbal harassment, intimidation, or personal abuse against any member of the College community is forbidden.

The letter did not specify what alleged behavior constituted these violations. The next day, VanNahmen and his attorney requested that VanNahmen “be provided specific notice of the conduct that he must defend against.” After all, even if you’re told what rule you’ve allegedly broken, it can be difficult or impossible to defend yourself if you don’t understand how you’ve allegedly broken the rule. In response to this request, DCCC simply referred VanNahmen back to the March 5 charge letter.

As FIRE readers will remember, the Supreme Court of the United States has held that where a public school student faces suspension of 10 days or more, he is entitled to due process that includes at least “notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” This letter plainly does not qualify.

In his order rejecting DCCC’s motion to dismiss the case, Judge Eric F. Melgren found the notice insufficient, as alleged, writing:

While the amount of notice required may differ in different circumstances, “[d]ue process requires that a student be made aware of the charges facing him so that he may prepare a proper defense.” VanNahmen alleges that he did not receive sufficient notice of the charges against him, and the Court concludes that he has adequately pleaded a procedural due process violation based on a lack of notice. DCCC’s letter only vaguely refers to disorderly and threatening behavior, without providing any context other than that it allegedly occurred “on or about” two specific dates. Indeed, the letter further clouds this issue by stating that students can be held responsible for their behavior whether on or off campus. [Internal citation omitted.]

DCCC had argued that VanNahmen received additional, adequate information before the hearing, but Judge Melgren wrote that the college was making “factual assertions that the Court cannot consider under the motion to dismiss standard.” Accordingly, VanNahmen’s due process claim survived DCCC’s motion to dismiss.

So what did VanNahmen do?

According to his complaint, on Dec. 5, 2016, he “met with college president Dr. Harold Nolte … at Nolte’s office to express displeasure about” “a proposal for DCCC to sell land for retail development.” Although “Nolte acknowledged that VanNahmen did not curse at or physically assault him,” Nolte apparently held the “position that plaintiff’s voice was raised and the encounter left Nolte feeling threatened.”

On Dec. 8, VanNahmen tried to deliver Nolte a letter “in effect … demanding Nolte’s resignation,” but a campus security officer took the letter on Nolte’s behalf; VanNahmen and Nolte did not interact that day.

Without more information, it’s impossible to tell whether VanNahmen did actually threaten Nolte, or whether Nolte subjectively and unreasonably felt threatened based merely on VanNahmen’s enthusiastic opposition to the land sale proposal. Similarly, without more information, it would be impossible to effectively prepare a defense to the charges against VanNahmen, or even to know whether the question to be decided was a factual one (Did VanNahmen say a certain threatening thing?) or a policy one (Did what VanNahmen admitted to saying constitute a threat?).

If VanNahmen’s behavior is fairly characterized in the complaint, VanNahmen’s raised voice and Nolte’s subjective feeling of being threatened are not enough to convert VanNahmen’s speech into a constitutionally unprotected “true threat.” A true threat is a “serious expression of an intent to commit an act of unlawful violence.” If DCCC was alleging VanNahmen did say something that rose to that level, it should have relayed such language in the charge letter. If DCCC is not alleging behavior beyond what VanNahmen acknowledges, then it seems to be punishing him for expressing himself, in violation of the First Amendment.

Judge Melgren wrote that while DCCC argued VanNahmen was suspended for threatening behavior, again, that was not a factual dispute that could be resolved at this stage of the proceedings. Accordingly, VanNahmen’s First Amendment claim survived DCCC’s motion to dismiss.

It’s not clear whether DCCC will ultimately provide evidence to show that VanNahmen had legally sufficient notice of his alleged wrongdoing, and whether the college did, in fact, punish him for a true threat and not for expressing his opinions. But whatever the court ultimately holds, DCCC has a moral obligation to provide adequate information about charges in its notice letters to students accused of misconduct. There is no good reason not to, and withholding information serves only to hinder a student’s ability to present his or her case, potentially hindering fact finders’ ability to discover the truth.

This is why, in awarding points to universities for FIRE’s Spotlight on Due Process report, we demand that notice include information about both what policies were allegedly violated and what behavior allegedly violated those policies. We’ll be watching VanNahmen’s case closely and we hope this serves as incentive for colleges to guarantee meaningful written notice to accused students.