The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Jaime Borda ("Borda") brought suit against defendant
Dr. Patricia Ridge ("Ridge") pursuant to 42 U.S.C. § 1983. This
court has jurisdiction pursuant to 28 U.S.C. § 1331. Borda claims
that Ridge, the Chairperson of the Bachelor of Arts Review Board
and the Director for Bachelor of Arts degrees in the Department
of Theatre at Northern Illinois University ("NIU"), violated his
rights to due process and equal protection under the 14th
Amendment. Ridge moves to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted.
Under FRCP 12(b)(6) "a motion to dismiss should not be granted
unless it appears beyond doubt that the plaintiff cannotprove any
facts that would support his claim for relief." Kennedy v. Nat'l
Juvenile Detention Ass'n., 187 F.3d 690, 694 (7th Cir.
1999). "All statements of fact in the complaint are taken as true
and all reasonable inferences must be drawn in favor of [the
non-movant]." Dixon v. Page, 291 F.3d 485, 486 (7th Cir.
2002). As a result, the following facts are taken to be true for
purposes of deciding Ridge's motion.
During the Spring of 2001 NIU charged Borda with various
disciplinary infractions and expelled him from the Theatre
Department. Borda appealed the sanction as a violation of NIU's
Handbook. On May 16, 2001, Ridge agreed that NIU violated its own
Disciplinary Code in expelling Borda under the circumstances and
partially reversed the decision to sanction him. Between May 16,
2001 and November 1, 2001, Ridge engaged in a discriminatory
course of conduct against Borda based on her personal animus
against him. The misconduct included retaining Borda on probation
in violation of NIU's Handbook, when the only authorized sanction
was casting probation, subjecting Borda to unequal scrutiny in
order to justify his second expulsion from the Theatre
Department, and revealing to Borda's entire class that he was "on
probation and better be careful," which is alleged to be in
violation of the right to confidentiality guaranteed by the
Family Educational Rights and Privacy Act ("FERPA").*fn1 In
addition, between May 16, 2001 and November 1, 2001, Ridge
determined that Borda was guilty of violating the terms of his
probation as a result of a shoving match with another student
without affording him an opportunity to respond to the charges.
As a result of that determination, Borda was expelled from NIU's
Theatre Department a second and permanent time, though he was
still permitted to seek a different course of study at NIU.
Borda asserts that Ridge, as the head of the Review Board for
disciplinary actions, violated his due process rights when she
permanently expelled him from the Theatre Department without
giving him an opportunity to respond to the allegations he faced
and for damaging his reputation by revealing his disciplinary
status to other students. Borda also asserts that Ridge violated
his equal protection rights because she intentionally
ignored/violated NIU's disciplinary rules so that Borda would be
expelled from the Theatre Department, treating him differently
from similarly situated students.
Ridge argues that Borda's claims are time-barred by the statute
of limitations. She also argues that the due process claim should
be dismissed because Borda had no Constitutional right to an
education from the Theatre Department and because Borda did not
have a liberty interest in his reputation. Ridge then argues the
equal protection claim should be dismissed because Borda's
Complaintand Amended Complaint make it clear that he was a prime
candidate for expulsion and because he asserts no facts to
demonstrate that his treatment was different from those of
similarly situated students. Ridge asserts that because she was
acting within the scope of her authority as a state governmental
agent, she has qualified immunity from Borda's suit.
Borda was expelled from the theatre program on November 1,
2001. The parties agree a two-year statute of limitations
applies. Borda filed suit on October 31, 2003. The complaint is
timely. The fact that plaintiff contests his probationary status
prior to his expulsion and that it was imposed outside the
two-year limitations period does not defeat his claim that his
expulsion was improper. To the extent he is attempting to state a
claim for injuries arising from the revelation of his
probationary status and lost eligibility for financial aid due to
his probation, the statute of limitations would seem to preclude
these claims since they necessarily occurred prior to his
expulsion on November 1, 2001, and his complaint was filed on
October 31, 2003.
Borda claims a denial of substantive and procedural due process
in his expulsion from the NIU Theatre Department. To state a
claim for substantive due process, Borda must allege conduct
intended to injure that was not justifiable by any governmental
interest. Dunn v. Fairfield Cmty. High Sch. Dist. No. 225,
158 F.3d 962, 965 (7th Cir. 1998). The action must shock the
conscience. Id. Expulsion from a college theatre program, no
matter how mean-spirited the motivation, simply is not
To state a claim for deprivation of procedural due process,
plaintiff must allege a deprivation of a property or liberty
interest that is protected by the 14th Amendment without due
process of law. Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
In Osteen v. Henley, 13 F.3d 221 (7th Cir. 1993), a case
involving an actual expulsion from NIU, not just expulsion from a
program at NIU, the court stated "[a]s we tirelessly but
unavailingly remind counsel in this court, a violation of state
law (for purposes of this case the student judicial code may be
treated as a state law) is not a denial of due process, even if
the state law confers a procedural right." Id. at 225.
Plaintiff's claim that Ridge denied him due process because she
did not follow the Theatre Department's procedures for discipline
Borda's due process claim that Ridge damaged his reputation by
revealing his disciplinary status to other students, (which, as
discussed above, appears defeated by the statute of limitations)
is baseless. Borda does not present any authority that such a
claim is available to a student. Even if the court were to treat
this claim like that of a discharged government employee (and
there is no reason to do so), plaintiff cannot get by the first
step of that analysis. Ridge must have made false statements of
fact to meet the first steptoward stating a claim. See
Strasburger v. Bd. of Ed., Hardin County Cmty. Unit Sch. Dist.
No. 1, 143 F.3d 351, 356 (7th Cir. 1998), cert. denied,
525 U.S. 1069 (1999). She is alleged to have said he was "on
probation and better be careful," which was true. Further, there
is no way her making such a statement to his fellow students
could have damaged him in a way that would be analogous to "a
tangible loss of other employment opportunities." Id. Borda's
procedural due process claim fails.
Borda claims a "class of one" equal protection violation. He
must allege that he was "(1) intentionally treated differently
from others similarly situated and that there is no rational
basis for the difference in treatment or (2) that the government
is treating unequally those individuals who are prima facie
identical in all relevant respects, and that the cause of the
differential treatment is a totally illegitimate animus toward
the plaintiff by the defendant." Nevel v. Village of
Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002). Borda's
complaint fails to meet this test. According to Ex. C, attached
to his complaint, Borda was expelled for an incident with another
student in which he failed to take responsibility for his
inappropriate actions, modify his belligerenttone, and adhere to
standards of professionalism. He does not allege other students
who failed to do these things were not disciplined. He does not
allege that other students who failed to do these things exist.
In the absence of allegations of similarly situated or prima
facie identical individuals receiving different treatment, Borda
fails to state a claim.
Because the court finds the complaint fails to state a claim on
which relief can be granted, as discussed above, the court
declines to address Ridge's qualified immunity argument.
Defendant's motion to dismiss is ...