Zale v. Moraine Valley Cmty. Coll.

2019 IL App (1st) 190197

135 N.E.3d 137

434 Ill.Dec. 253

Joshua ZALE, Plaintiff-Appellant,

v.MORAINE VALLEY COMMUNITY COLLEGE, Defendant-Appellee.

No. 1-19-0197

Appellate Court of Illinois, First District, Fourth Division.

August 29, 2019

Rehearing denied September 20, 2019

Joshua Zale, of Oak Lawn, appellant pro se.

John B. Murphey, of Rosenthal, Murphey, Coblentz & Donahue, of Chicago, for appellee.

JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 The instant appeal arises from the dismissal of plaintiff Joshua Zale's complaint against defendant Moraine Valley Community College, in which plaintiff took issue with a warning issued by the defendant college in response to a comment made by plaintiff during a theater class, claiming that the sanctions imposed on him violated his due process rights and an implied contract between plaintiff and the defendant college. Plaintiff appeals and, for the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On August 14, 2017, plaintiff filed a pro se complaint against the defendant college, alleging that he was enrolled as a student during the 2016-17 school year. Plaintiff alleged that one of the courses in which he was enrolled was an acting class, where he was given an assignment to improvise a scene in which he was to impersonate a pimp who was to persuade his prostitute to give him money. After the class, his professor informed plaintiff that he had used an unacceptable word during his performance. Plaintiff and the professor met on April 20, 2017, to discuss plaintiff's use of the word, which plaintiff alleged "was precisely within the assignment he had been given." Defendant's assistant dean of liberal arts and director of academic arts was present at the meeting and, during the meeting, "accused Plaintiff of mistreating her as a woman."

¶ 4 Plaintiff's complaint did not set forth the specific details of the incidents leading to the report against him, but the record contains an incident report entered by the assistant dean, as well as notes commemorating a conversation the defendant's dean of students had with the professor concerning the report. According to the professor, approximately six weeks before April 20, plaintiff had been involved in an improvisational scene in his theater class, in which plaintiff was in the role of a pimp and the professor was in the role of a prostitute. During the scene, plaintiff used the word "c***," and the professor instructed plaintiff not to use that word. According to the professor, the moment passed, and plaintiff did not bring it up again. However, several weeks later, on April 18, plaintiff engaged the professor in a provocative line of conversation, involving plaintiff's thoughts on Jewish people, "safe zones, affirmative action, and modern-day feminism," during which plaintiff brought up the incident from class and suggested that he could say anything he liked because it was protected by the first amendment. Two days later, on April 20, plaintiff followed the professor into his office after they had attended a campus speaker event, stating that he wanted to " ‘continue our argument from the other day.’ " Plaintiff again began speaking about the first amendment and its relationship to the student code of conduct. The professor called the assistant dean and asked her to come to his office, which she did. They attempted to speak with plaintiff about "the Code [of Conduct], Title IX, and students being comfortable on campus." Plaintiff began to "argue over" the assistant dean and to interrupt her, at one point calling her a " ‘little girl’ " before she left the office. According to the professor, the conversation became loud enough that a colleague came over and asked them to be quieter.

¶ 5 According to the assistant dean's report, on April 20, 2017, the professor called her and asked her to come to his office, where she discovered him in conversation with a student. The professor asked her what steps he was to take when a student made inappropriate comments in a classroom, and she explained the options. The student "jumped in" and stated that the first amendment permitted him to say anything he liked, and the professor and the assistant dean "verbally shared Code of Conduct and Title IX information with the student." However, the student insisted that "it wouldn't stand up in the court of law" and stated that he was " ‘smarter than the lawyers,’ " at which point the assistant dean asked the student if he was in law school. According to the assistant dean, at one point, she informed the student that his behavior and words could be perceived as intimidating and bullying, and he backed up into his chair, crossed his arms, and repeatedly asked, " ‘you think this is intimidating?’ " Another faculty member entered the room and asked everyone to quiet down, as he had a student in the next room taking an exam, and the student replied " ‘boo hoo.’ " The student later asked the assistant dean if she was " ‘making this a woman thing’ " and referred to her as a " ‘little girl’ " as she was leaving the office. The assistant dean reported that "[t]hroughout the entire conversation, the student was disrespectful towards [the professor], [the other faculty member], and [the assistant dean] and could be perceived as harassing or intimidating in various situations." As an example, the assistant dean pointed to the student's frequent habit of speaking over the professor and the assistant dean and not permitting them to speak, even after the professor raised the issue with him.

¶ 6 In his complaint, plaintiff alleged that on April 26, 2017, he received a letter from defendant's dean of students,¹ and, after receiving the letter, plaintiff "demanded that the individuals who were accusing him of misconduct be present at any hearing which was to be held regarding the charges against him." The dean denied plaintiff's request, and as a result, plaintiff refused to participate in any hearing. On May 4, 2017, plaintiff received a letter informing him that he would be required to write an essay and that failure to do so would result in a hold being placed on his records. Plaintiff refused to write the essay, and on May 19, 2017, plaintiff received a letter informing him that a hold had been placed on his records, preventing him from enrolling in future courses. As a result, plaintiff alleged that he had been deprived of the ability to continue with his education at the defendant college.

¶ 7 Plaintiff alleged that he was deprived of procedural due process because the charges against him were conclusory and did not provide notice of the conduct with which he was charged; he was deprived of the right to confront his accusers; the hearing was to be conducted by the dean, who was not an unbiased decisionmaker; and the punishment was arbitrary and capricious. Plaintiff further alleged that the manner in which the proceedings were handled failed to comply with the defendant college's code of student conduct and that the penalties imposed were done in retaliation for plaintiff's exercise of his right to free speech.

¶ 8 Plaintiff requested that the trial court grant him the following relief: (1) ordering the defendant college to rescind any and all charges against him and any penalties imposed upon him, (2) ordering the defendant college to allow plaintiff to enroll in any courses for which he is qualified, and (3) awarding plaintiff actual and punitive monetary damages.

¶ 9 Attached to the complaint were copies of the letters referenced in the complaint. First, an April 26, 2017, letter from the dean stated that, based on a report from the assistant dean and plaintiff's professor, "it is important that we discuss the incident that took place on April 20, 2017 at 1:00 PM in the F Building. Actions of this nature, if accurate, are not acceptable at the college and may have violated the Code of Student Conduct." Specifically, the letter stated that plaintiff was accused of violating two sections of the code:

"1. IV.2 Disruption or obstruction of any operation of the college, including, but not limited to, teaching, student conduct proceedings, college activities, public service functions on or off campus, or other authorized non-college activities, when the act occurs on college premises.

2. IV.3 Physical/Verbal Abuse of Harassment: Any act that threatens or endangers the health or safety of any person, including but not limited to, physical abuse, verbal abuse, threats, intimidation, harassment, coercion, intimate partner violence, and stalking. For more information, see Sexual Discrimination, Harassment, and Misconduct Policy."

The letter asked plaintiff to contact the dean to schedule a meeting regarding the matter and provided, in bold print, that "[t]his meeting must be scheduled by May 1, 2017, and held no later than May 3, 2017. Failure to respond to this request may result in additional violations and/or a hold on your records, and a hearing will be scheduled for you."

¶ 10 Next, a May 4, 2017, letter from the dean stated that a hearing was held in plaintiff's absence on May 4, and that plaintiff had been determined "[r]esponsible" for three violations of the code of student conduct: (1) "Disruption of college operation," (2) "Physical/verbal abuse & harassment," and (3) "Failure to comply with a request to attend a meeting." As a result, two sanctions were imposed on plaintiff. First, plaintiff received a formal warning, and second, plaintiff was required to write a two-page essay "on how [the defendant college's] five core values apply to [plaintiff's] interaction with the staff members," which was to be submitted to the dean by May 18. The letter provided that plaintiff had the right to appeal any decision or sanctions within five days of the receipt of the letter and warned that "[f]ailure to complete or to abide by these sanctions by the indicated deadlines could result in a hold placed on your records or further disciplinary action."

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