Campus Due Process Litigation Tracker

Sheppard v. Visitors of Virginia State University, 2019 U.S. Dist. LEXIS 70661 (E.D. Va. Apr. 25, 2019)

School type: Public
State: Virginia
Federal Circuit: Fourth
Decision primarily favorable to: University
Stage of litigation: Motion to dismiss
Keywords: Due process, Selective enforcement, Title IX

The court dismissed Plaintiff’s Title IX and due process claims against the university and several administrators.

The case stemmed from an incident in which, after Plaintiff’s ex-girlfriend stole some belongings from his room, Plaintiff pushed his ex-girlfriend in an attempt to grab her keys and return his belongings. Ultimately, Plaintiff was found responsible for assault and his ex-girlfriend for theft, but the university only moved forward on the theft complaint after Plaintiff filed a complaint with OCR alleging differential treatment.

Plaintiff brought a Title IX “selective enforcement” claim based on the disparity between the university’s treatment of his claim vs. his ex-girlfriend’s claim arising from the same incident: “Plaintiff is arguing that VSU subjected him to unequal treatment because it waited to pursue charges against Students A and B until almost five months after his proceedings.”

The court dismissed Plaintiff’s Title IX claim because (1) he did not identify a similarly situated female student (because the claim against him was assault and the claim against her was theft, “the Court concludes that the nature of the charges in this context are so dissimilar so as to render the circumstances of Plaintiff s prosecution distinct from those of Students A and B”); (2) he failed to allege he was treated differently from the two female students — temporal disparity is not sufficient; and (3) his remaining allegations of gender bias are conclusory.

With regard to Plaintiff’s due process claim, the court held that he had not established a protected liberty or property interest at stake in the case. Noting that “reputational injury alone” was insufficient to establish a liberty interest, the court applied what it called a “stigma-plus” test that requires a Plaintiff to have been deprived of more tangible interests in addition to the reputational stigma of a guilty finding. Here, Plaintiff’s transcript apparently only reflected the fact that he had withdrawn from classes, which did not affect his reputation because there are many reasons a student may withdraw from classes.

In terms of the alleged property interest, “Neither the Supreme Court nor the Fourth Circuit has held that such a property interest exists in connection with higher education, either categorically or specifically with regard to Virginia law.”