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Endres v. Northeast Ohio Medical University

United States Court of Appeals, Sixth Circuit

August 30, 2019

J. Endres, Plaintiff-Appellant,
Northeast Ohio Medical University; Northeast Ohio Medical University Board of Trustees; Sandra Emerick; Jay A. Gershen, Defendants-Appellees.

          Argued: May 2, 2019

          Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:17-cv-02408-Sara E. Lioi, District Judge.


          John S. Marshall, MARSHALL AND FORMAN LLC, Columbus, Ohio, for Appellant.

          Todd R. Marti, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

         ON BRIEF:

          John S. Marshall, MARSHALL AND FORMAN LLC, Columbus, Ohio, for Appellant.

          Todd R. Marti, Anthony J. Farris, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

          Before: MERRITT, KETHLEDGE, and NALBANDIAN, Circuit Judges.



         Northeast Ohio Medical University ("NEOMED") dismissed Julian Endres, a medical student, for cheating on a test. Endres denies cheating, but his guilt or innocence is not relevant to this appeal. Instead, this appeal presents two questions. The first concerns when Endres should have brought the claims that he brings here. And the second concerns what process the school should have afforded him before dismissing him. After his dismissal, Endres sued NEOMED, its president and board of trustees, and a NEOMED administrator, Sandra Emerick, alleging violations of his right to procedural due process, along with the Americans with Disabilities Act and the Rehabilitation Act of 1973. But before considering the substance of those claims, the district court dismissed Endres's complaint as untimely. The district court also held that even if Endres's due process claim were timely, Emerick is entitled to qualified immunity. Endres appeals that decision.

         We hold that Endres's claims are timely and REVERSE the district court's dismissal of his complaint. Endres has also alleged facts which, taken as true, establish several violations of his procedural due process rights. But because the contours of those rights were not clearly established, we AFFIRM the district court's grant of qualified immunity to Emerick, which immunizes her from damages though not from injunctive relief.


         Julian Endres has Attention Deficit Hyperactivity Disorder ("ADHD"). Since his diagnosis at age six, Endres has taken medication to treat that condition, beginning with Ritalin, and he seemed to manage well. Endres graduated from high school as valedictorian and enrolled in the accelerated B.S./M.D. program at the Northeast Ohio Medical University ("NEOMED"), a public university. After completing his undergraduate studies in two years, graduating magna cum laude, Endres began medical school.

         When Endres started his second semester of medical school, he experienced a new side effect from Ritalin. Endres alleges that around March 2015, he felt that the medicine was over- sedating him and making him lethargic-so he stopped taking it altogether. By that time, Endres had passed fourteen of the fifteen required classes to complete his first year of medical school, but he still had one class left. No longer on Ritalin, Endres failed that class. So NEOMED made Endres repeat the entire first-year curriculum during the following academic year, including the fourteen classes he had passed.

         Before he returned to NEOMED that fall, Endres consulted with his physicians to find a medicine that would treat his ADHD without inducing the unwanted side-effects, and in August 2015, Endres switched to Strattera. Endres alleges that Strattera helped him concentrate without making him feel drowsy but that it was not a magic bullet. Unlike Ritalin, Strattera did not suppress his fidgeting. Even so, he stuck with the new medicine.

         The Test. Back at NEOMED, Endres re-enrolled in the mandatory first-year curriculum, including Human Development and Structure ("HDS"), taught by Professor Hans Thewissen. It made no difference that Endres passed HDS the prior year because he had to retake all first-year classes.

         Tests at NEOMED are a serious undertaking. Students take their tests on NEOMED's laptops, using a special software program that allows them to zoom in and out and manipulate the images on the screen. Endres alleges that NEOMED's laptops are set at the lowest brightness level and that students cannot make the screen any brighter. And while students are taking tests, NEOMED officials are watching-both with their own eyes and with a camera that records students taking examinations. Students knew that NEOMED was filming them. Indeed, Endres had worked part-time as an assistant, helping NEOMED professors set up the camera to record class lectures.

         This case involves the 25-question test Endres took on September 28, 2015, as part of the HDS course. Endres sat directly in front of the camera. And as it turned out, the camera focused on Endres throughout much of the test. Footage from the test reveals Endres fidgeting and repeatedly glancing toward his right-and in the direction of his seatmate's ("Student B") laptop. Endres concedes that his eye movements and sideways glances might look suspicious to someone watching the video with no context, but he offers an alternate explanation. According to Endres, Student B repeatedly used the software's zoom feature, which created brief flashes of light that caused Endres to look repeatedly to the source. In any event, Endres contends that it was physically impossible to see any legible content on the laptop to his right, both because he was sitting about five feet away, and because all laptops were set to the lowest brightness level.

         When the test ended, one of the proctors completed an irregularity report, noting that Endres appeared to look repeatedly at the laptop to his right-but that perhaps he was just nervous. That report made its way to Sandra Emerick, NEOMED's chief officer of student affairs. And so NEOMED's investigation of Endres began.

         The Investigation and Referral to CAPP. Endres alleges that Emerick began a three-day investigation into his conduct during the September 28 test. Emerick reviewed the video recording of the test and obtained Endres's and Student B's answer keys, which revealed that 84% of their answers were identical. Student B and Endres answered the same six questions incorrectly, the same fifteen questions correctly, and the same four questions differently. In the end, Endres scored a 72 while Student B scored a 64. The class mean was a 56.5. Emerick then sent her findings to several university administrators and professors, including Thewissen, writing that the video footage "clearly" showed Endres "viewing peer's computer screen repeatedly during the exam," and noting in boldface that "84% of the tests were identical." (R. 23, First Am. Compl. at ¶ 47.)

         NEOMED's student handbook outlines various procedures to address allegations of student misconduct, including cheating, and gives NEOMED administrators discretion over which procedures to use. Under the handbook, the chief officer of student affairs works with several administrators to decide where to refer misconduct allegations. The administrators have three basic options-they may refer the allegations to: (1) a formal disciplinary body; (2) the Committee on Academic and Professional Progress ("CAPP"); or (3) a less formal process, such as counseling or mediation. When administrators refer a matter to the formal disciplinary body, the student has a right to an adversarial hearing-where he may learn the evidence against him, cross-examine witnesses, and present evidence in his defense.

         Emerick referred the matter to CAPP, which reviews issues related to academic performance and professionalism. CAPP accepted the referral and later sent Endres a letter notifying him that he had to attend a hearing on October 21, where a panel would discuss the "professionalism concern," as well as Endres's "overall educational performance." (Id. at ¶ 80.) The letter instructed Endres to review his student file and to complete a student interview form with Emerick, which Emerick would then add to his student file and present to CAPP at the hearing.

         Emerick Meets with Endres. After referring the matter to CAPP, Emerick called Endres for a brief meeting on October 7, marking the first time that he learned of the allegations against him. Endres alleges that he was "completely stunned" to learn that he stood accused of cheating. (Id. at ¶ 72.) And when Emerick showed Endres footage of the test, Endres alleges he was "shell-shocked to see how 'bad' his fidgeting and side-glances caused by distractions looked." (Id.) Endres informed Emerick that he had recently switched from Ritalin to Strattera, which did not suppress his fidgeting, so Emerick requested that Endres provide documentation from his doctor about the medication change. Less than a week later, Endres's doctor, Dr. Caroline Ramos, sent Emerick a letter describing Endres's ADHD, along with medical records documenting Endres's medication adjustment between April and August 2015. Ramos stated that she viewed the video recording and found that Endres's behavior during the test mimicked the fidgeting that Endres had described at an April 2015 appointment. Ramos also suggested that because Endres had recently started the Strattera, NEOMED should make certain accommodations for him, especially so that no one would misinterpret his fidgeting as academic misconduct.

         After the initial meeting, Endres emailed Emerick about his case. Endres explained to Emerick that the position of the laptops prevented a test-taker from viewing any meaningful information on a nearby laptop. So Endres requested that CAPP recreate the testing conditions through a "field test," which would prove that it was impossible to cheat. Endres alleges that Emerick never responded to that request. In the same email, however, Endres requested information and evidence on his case, and Emerick responded to that request, explaining that his official student file contained all information from the investigation that she would present to CAPP.

         On October 14, Endres visited the student enrollment office to review his file. Endres alleges that he found a folder containing all of his records since he applied to NEOMED as a high-school student-and in no particular order. According to Endres, his file contained only two records related to the misconduct allegation: (1) an email from Emerick, referring the matter to CAPP; and (2) Endres's and Student B's answer keys to the September 28 test. Endres alleges that the proctor's irregularity report was missing from his file, prompting him to email Emerick and request to view the report. Endres returned to the student enrollment office the next day to view the report, which was then in the file.

         Endres met once more with Emerick before the CAPP hearing. He alleges that Emerick did not discuss any information about his case or describe to him the evidence that she would present before CAPP. Endres then submitted his student interview form, a personal statement, a statement from ...

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