Nicholas Hess v. Board of Trustees of Southern

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1064
NICHOLAS HESS,
Plaintiff-Appellant,
v.
THE BOARD OF TRUSTEES OF SOUTHERN
ILLINOIS UNIVERSITY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:14-cv-00727 LJM — Larry J. McKinney, Judge. *
____________________
ARGUED SEPTEMBER 15, 2016 — DECIDED OCTOBER 13, 2016
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Nicholas Hess was suspended and
later expelled from Southern Illinois University (SIU) after he
was arrested for aggravated battery. Hess sued the Board of
* Of the Southern District of Indiana, sitting by designation.
2 No. 16-1064
Trustees of the university, as well as several school adminis-
trators in their individual and official capacities, for violations
of his procedural and substantive due-process rights. After
dismissing some of the claims as barred by sovereign immun-
ity, the district court awarded summary judgment to defend-
ants on the remaining claims. We affirm.
I. Background
In the early morning of November 28, 2013, law-enforce-
ment officials responded to a call about a bar fight in Marion,
Illinois. Marion police officer Adam Byrne was one of the first
to arrive at the scene. As he approached the bar, Byrne spotted
one man chasing another across the parking lot. The latter in-
dividual ran to a parked car and was able to get in before the
pursuer, not far behind, also reached the car and began
punching at the driver’s-side window. Byrne restrained the
pursuer, and the man in the car drove away.
The pursuer was Nicholas Hess, a student at SIU. Hess
told Officer Byrne that a fight had broken out at the bar, so he
and his brother, sister, and girlfriend had tried to leave the
venue. Before they could do so, however, a man Hess recog-
nized as Aaron Franks had hit Hess’s sister in the face. Hess
had then given chase, but claimed to have never made contact
with Franks because Franks had jumped into his car. Hess’s
girlfriend and his siblings corroborated his story, though the
sister did not have any injuries suggestive of facial trauma.
The Marion Police Department sent an officer to speak
with Aaron Franks, who had driven himself to a nearby hos-
pital. Franks, it turned out, had been stabbed several times,
and he gave to the police officer a physical description of the
person Franks believed had attacked him. This description
No. 16-1064 3
closely matched Hess’s appearance on the morning in ques-
tion, and Hess was taken into custody a short time later. After
a second round of questioning—during which Hess gave the
same account as he had previously—Hess was released. A
few days later, however, he was charged with aggravated bat-
tery, and a warrant was issued for his arrest on December 4,
2013. Hess turned himself in on December 9, and was released
on bail later that day.
News of the arrest soon reached SIU’s Director of Student
Rights and Responsibilities, Chad Trisler, who requested the
relevant incident reports from the police department. After
reviewing the reports, Trisler recommended to the acting
Dean of Students, Katherine Sermersheim, that Hess be sus-
pended from the university pending a hearing. Sermersheim
concurred, and asked Trisler to issue the interim suspension.
On December 11, 2013, SIU police officers told Hess to
come to the campus police department to receive a letter. Hess
went to the department with his mother, and Trisler met with
them and explained that Hess was being suspended. Trisler
also gave to Hess a written notice of suspension, which stated
that Hess was being suspended from all university property
and events in light of allegations from the Williamson County
Sheriff’s Department that he had stabbed someone several
times during a bar fight. If Hess wished to appeal the suspen-
sion, the notice explained, he could ask for an interim appeal
hearing, which would take place within two days of the re-
quest. Hess did not request an interim hearing, and, while
suspended, he missed two final exams.
On December 13, Hess received from Trisler a “charge and
notification” letter, which listed the provisions of the SIU Stu-
dent Conduct Code that school administrators believed Hess
4 No. 16-1064
had violated during the bar incident. These alleged violations
included: (1) intentional, negligent, or attempted homicide;
(2) physical assault or abuse; (3) violent behavior; (4) “group
actions” (defined in Section 2.3.6.2 of the Code as any incident
in which a group of two or more persons engaged in violence,
or the threat of violence, against an individual); (5) reckless
disregard for the risk one’s actions presented to others;
(6) reckless conduct presenting a danger to property; (7) the
possession, carrying, or use of any object intended for use as,
or used as, a weapon; and (8) disorderly conduct. The letter
instructed Hess to complete and return to SIU within five
days an attached form, in which Hess could either admit his
responsibility for the offenses charged, or deny his responsi-
bility and request an administrative hearing. Hess requested
a hearing, which was scheduled (in light of the winter holi-
day) for January 17, 2014.
Four days before the January hearing, Hess received a let-
ter explaining that Chad Trisler would be his assigned hearing
officer, and that Hess could call as a witness any person who
had been present at, or who otherwise had firsthand
knowledge of, the events at issue. Hess decided to testify on
his own behalf, but had little to say at the hearing, as his coun-
sel—who was present as Hess’s advisor throughout the pro-
ceeding—had instructed him not to answer any questions
about what had happened at the bar. Hess’s girlfriend testified
that she, Hess, and his siblings had decided to leave the bar
after another person had told them that someone there had a
gun. It was in trying to exit that Hess had seen Aaron Franks
(the stabbing victim) punch Hess’s sister in the nose, and Hess
had given chase. Up until that point, said the girlfriend, she
and Hess had been holding hands.
No. 16-1064 5
Officer Byrne also testified at the hearing. He described
what he had seen after arriving at the bar—i.e., Hess chasing
Franks across the parking lot—and what Hess (and, later, his
girlfriend and siblings) had told Officer Byrne about Franks
punching Hess’s sister in the face. Byrne had then gone inside
the bar to investigate, he explained, and had concluded that
several “incidents of battery” had taken place there—though
he did not believe Hess had participated in those fights. 1
Byrne testified that Franks had later described his attacker as
resembling Hess, and that police officers had looked for evi-
dence that Hess had had with him at the bar a knife or other
weapon, but that no such evidence was found.
Trisler nonetheless thought Franks’s description was cred-
ible, and concluded that Hess was responsible for the stab-
bing. In a letter dated January 21, 2014, Trisler informed Hess
of the decision to expel him from the university. The letter
enumerated the seven sections of the Student Conduct Code
that Trisler believed Hess had violated—oddly, only “use of a
weapon” was dropped from the original list of eight alleged
violations—and explained that Hess had three days in which
to file an administrative appeal. Hess did so, and his appeal
was considered by a three-member panel of SIU employees.
1 According to Byrne’s written police report, he had seen inside the
bar Aaron Franks’s brother, Aadam, and two men with blood on them,
Mikeal Simmons and Dustin Kendrick. Aadam claimed to have been in-
jured by Simmons, and Simmons by Aadam, after Simmons had ex-
changed angry words with Aaron Franks. Kendrick maintained that he
had been punched in the face—though he did not say by whom—when
attempting to break up a fight between his friends and another man, who
had attacked them.
6 No. 16-1064
The panel recommended that Trisler’s decision be upheld,
and the Chancellor of the university, Rita Cheng, agreed.
Hess filed suit under 42 U.S.C. § 1983 against SIU’s Board
of Trustees, and Cheng, Sermersheim, and Trisler—each in
their individual and official capacities—for violations of
Hess’s procedural and substantive due-process rights. Ac-
cording to Hess, he had a property interest in a continued ed-
ucation at SIU, as well as a liberty interest in his reputation
with his instructors and fellow students (and in his ability to
pursue additional education elsewhere), and defendants had
unlawfully deprived him of those interests by: (1) suspending
him without first affording him an opportunity to tell his side
of the story; and (2) expelling him after conducting an unfair
hearing. Hess requested money damages, as well as an injunc-
tion compelling both his readmission to the university and the
opportunity for Hess to take his missed final exams.
Defendants filed a motion to dismiss the complaint, argu-
ing first that the official-capacity claims and claims against the
Board for monetary relief were barred by the Eleventh
Amendment, and, second, that the claims as a whole were in-
adequately pleaded. The motion to dismiss was still pending
when the parties later cross-moved for summary judgment,
so the district court resolved all three motions in the same
opinion.
The court granted the motion to dismiss insofar as it con-
cerned the damages claims against the Board, and against the
administrators as sued in their official capacities, as these
were claims against the university. The university, reasoned
the court, was not a “person” from whom money damages
could be obtained under § 1983. The court then converted the
No. 16-1064 7
remainder of the motion to dismiss into a motion for sum-
mary judgment, and ruled, in connection with the existing
motions for summary judgment, in defendants’ favor. Hess
had established neither a protected property interest nor a
protected liberty interest, said the court; and even if he had
proven such an interest, defendants had in any event pro-
vided Hess with sufficient procedural protections in depriv-
ing him of it. The district court was similarly unconvinced of
any substantive due-process violation.
Hess now appeals the granting of defendants’ summary-
judgment motion. He does not challenge either the denial of
his own summary-judgment motion or the court’s dismissal
of his money-damages claims against the university.
II. Discussion
We review de novo a district court’s decision on cross-mo-
tions for summary judgment, construing all facts and draw-
ing all reasonable inferences in favor of the party against
whom the motion under consideration was filed. Calumet
River Fleeting, Inc. v. Int’l Union of Operating Eng’rs, Local 150,
AFL–CIO, 824 F.3d 645, 647–48 (7th Cir. 2016) (citations omit-
ted). As we consider here only defendants’ motion for sum-
mary judgment, we resolve all factual disputes in Hess’s favor.
Summary judgment is appropriate where there are no genu-
ine issues of material fact and the movant is entitled to judg-
ment as a matter of law. Fed. R. Civ. P. 56(a).
A. Procedural Due Process
We undertake a two-part analysis in procedural due-pro-
cess cases: first, we determine whether the plaintiff was de-
prived of a protected interest; if so, we determine what pro-
cess was due under the circumstances. See Charleston v. Bd. of
8 No. 16-1064
Trs. of the Univ. of Ill. at Chi., 741 F.3d 769, 772 (7th Cir. 2013)
(citing Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003));
Pugel v. Bd. of Trs. of the Univ. of Ill., 378 F.3d 659, 662 (7th Cir.
2004) (citing Doherty v. City of Chi., 75 F.3d 318, 322 (7th Cir.
1996)). Hess argues that he had a protected interest in, among
other things, a continued education at SIU—both at the time
of his interim suspension, and, later, when Hess was perma-
nently expelled from campus. We will assume for present
purposes that Hess did have such an interest, and that de-
fendants therefore deprived him of this interest in removing
Hess from school. We turn, then, to the procedures used by
the university in effecting that alleged deprivation.
Where students are suspended from school for only brief
periods of time—i.e., for ten days or fewer—due process re-
quires only minimal safeguards: notice of the charges asserted
against the student, and, if he denies them, an explanation of
the evidence and an opportunity for the student to present his
side of the story. See Goss v. Lopez, 419 U.S. 565, 581 (1975); see
also id. at 584 (discussing an “informal give-and-take” be-
tween the student and disciplinarian). Hess was suspended
for more than ten days, but the temporary exclusion from
school property and activities was, as a practical matter, much
shorter than the calendar would otherwise suggest, as the sus-
pension coincided with SIU’s winter break. The Goss standard
thus applies here. Hess does not quarrel with the application
of this standard to his interim suspension, but maintains that
the standard was not satisfied in this case because there was
no “give-and-take” before the punishment was imposed. See
419 U.S. at 582 (noting that, in general, the required notice and
hearing should precede the student’s removal from school).
Hess was merely given a letter describing the conduct of
which he had been accused.
No. 16-1064 9
As we have explained in the past, however, schools may
in some instances dispense with certain pre-disciplinary pro-
cedures without running afoul of the Due Process Clause. In
Medlock v. Trustees of Indiana University, 738 F.3d 867 (7th Cir.
2013), for example, we addressed the suspension of a college
student found to have cultivated and hidden in his dorm
room a large quantity of marijuana. This flagrant violation of
university rules—and of Indiana criminal law—in our view
warranted immediate remedial action, and therefore obviated
the need for a pre-suspension hearing. See id. at 871 (citing
Goss, 419 U.S. at 581–83). There are, as Hess points out, differ-
ences between Medlock and the present case: Whereas in Med-
lock all evidence pointed toward the student’s guilt, leaving
no doubt that he had engaged in the conduct charged, see id.at 871–72, here, as we shall see, the balance does not tilt so
clearly in the university’s favor. Nevertheless, an arrest war-
rant for aggravated battery was compelling evidence that
Hess may have been responsible for the stabbing of Aaron
Franks—permitting SIU, in the interest of protecting other
members of its community, to promptly remove Hess from
campus pending a later hearing. See Goss, 419 U.S. at 582–83
(observing that schools may provide a post-removal hearing
where, as here, the student’s presence “poses a continuing
danger to persons or property”).
Hess insists that he was not a threat to anyone at SIU, and
that defendants could not reasonably have believed that he
was, because the person Hess had allegedly injured was not a
student at the university. Hess had also been on campus mul-
tiple times between the stabbing incident and when he was
suspended, and on none of those occasions had he behaved
violently toward anyone. Moreover, says Hess, the school had
10 No. 16-1064
no policy of prohibiting convicted persons from entering uni-
versity property—so it made no sense to bar from campus
those who had been merely accused, but not convicted, of
committing a crime. None of these arguments is persuasive.
Whether SIU had formally banned all convicted felons from
coming onto campus says nothing about the actions school
administrators could, or would, take when faced with a par-
ticularized threat; and, as evidenced by the warrant for Hess’s
arrest, administrators in this case had reason to be concerned.
The police believed Hess had stabbed another person multi-
ple times—thus suggesting to defendants that Hess was not
in full command of his emotions or, consequently, his behav-
ior, and might without warning endanger other individuals.
That Aaron Franks was not a member of the SIU community,
or that Hess had returned to campus without issue since the
stabbing had occurred, would not have obviated the risk de-
fendants reasonably thought Hess’s presence posed. It was
logical for the university to suspend him pending a later hear-
ing. Cf. Gilbert v. Homar, 520 U.S. 924, 933–34 (1997) (conclud-
ing, in the public-employment context, that a pre-suspension
hearing was rendered unnecessary by an arrest and the filing
of charges, as these events ensured that there were reasonable
grounds for disciplinary action) (citation omitted). 2
2 Hess cites to Goss for the proposition that even his arrest was not
reason enough to do away with a pre-disciplinary hearing, as one of the
students in Goss had likewise been arrested, and due process required for
that student a pre-deprivation opportunity to explain herself. See 419 U.S.
at 580 n.9. However, the problem with the procedures afforded in Goss
was not the lack of a pre-suspension hearing in particular, but the failure
to provide a disciplinary hearing at any time. See id.; id. at 571, 584. Indeed,
and as noted above, the Supreme Court was careful to explain that the
kind of pre-disciplinary procedures Hess now demands are not required
No. 16-1064 11
Moreover, we question the degree to which Hess actually
valued the interest he says was curtailed by the interim sus-
pension—and thus the importance to Hess of any pre-disci-
plinary safeguards he claims ought to have been employed
here—as Hess chose not to appeal that suspension in the first
instance. See, e.g., Goss, 419 U.S. at 578 (noting that procedural
due process is a practical concept, dependent on context) (ci-
tation omitted); id. at 579 (examining, in context, the private
interest at stake); Pugel, 378 F.3d at 663–64 (same). The written
notice of disciplinary action that Hess received on December
11, 2013, explained that Hess could request an interim appeal
meeting; and that meeting, had Hess asked for one, would
have taken place within two days of the request. So Hess
could have had his say by December 13. Hess urges that a con-
versation at that time would have served no purpose, because
he still would have missed his final exams. Yet even if an in-
terim appeal would not have allowed Hess to take all of his
exams as scheduled, we do not see why a student in his posi-
tion, as concerned with his academic record as Hess claims to
have been, would not have availed himself of every oppor-
tunity to protect—or at least mitigate the possible damage
to—that record.
In any event, Hess argues that the hearing he ultimately
did receive—that is, the post-suspension (but pre-expulsion)
hearing—was procedurally deficient, because the presiding
officer, Chad Trisler, was biased against Hess and had pre-
in situations where, as here, the student’s presence potentially poses a con-
tinuing danger to the school community. See id. at 582–83 (observing that,
in such cases, the rudimentary hearing should take place “as soon as prac-
ticable”).
12 No. 16-1064
judged his case. Trisler must have been biased, says Hess, be-
cause: Trisler was smiling when he first told Hess about the
interim suspension in December 2013; Trisler purportedly
communicated to the Dean of Students that, before the hear-
ing in January 2014, Trisler had already decided Hess was
guilty of the conduct charged; and Trisler not only presided
over that hearing, but was also responsible for collecting the
evidence presented during the proceeding.
Although biased decision-making does violate due pro-
cess, see Withrow v. Larkin, 421 U.S. 35, 47 (1975), the combina-
tion of investigative and adjudicative functions into a single
administrator does not, in itself, demonstrate such bias, see id.at 47–55. This is because we presume that administrators are
honest and impartial, id. at 47, and therefore “capable of judg-
ing a particular controversy fairly on the basis of its own cir-
cumstances,” id. at 55 (quoting United States v. Morgan, 313
U.S. 409, 421 (1941)). The presumption is a rebuttable one, but
the burden of rebuttal is heavy indeed: To carry that burden,
the party claiming bias must lay a specific foundation of prej-
udice or prejudgment, such that the probability of actual bias
is too high to be constitutionally tolerable. Id. at 47, 55; see also
Amundsen v. Chi. Park Dist., 218 F.3d 712, 716 (7th Cir. 2000)
(explaining that the plaintiff typically must show that the ad-
judicator had a pecuniary interest in the outcome of the case,
or that he was previously the target of the plaintiff’s personal
abuse or criticism (quoting Withrow, 421 U.S. at 47)). 3
3Before the district court, Hess argued that Trisler was likely biased
against him because of some offensive remarks Hess (and his mother) al-
legedly made to Trisler after learning of the suspension. The district court
rejected this argument, however, and Hess has not renewed it on appeal.
No. 16-1064 13
To show prejudgment here, Hess relies in part on the dep-
osition testimony of Dean Sermersheim—which, according to
Hess, demonstrates that Trisler thought him guilty from the
get-go. Sermersheim testified as follows:
Q: What was your understanding of what the
charges were that had been lodged against
Hess on December 11, 2013?
A: The information I had at the time was a bar
fight, resulting in Mr. Hess stabbing another
individual multiple times.
Q: Did you conclude that Hess had stabbed an-
other individual multiple times?
A: At that time, based on the information we
had, yes.
Q: Really?
A: Yes.
Q: You had concluded that Hess had stabbed
another individual multiple times, correct?
A: Yes.
Q: Who told you that, that Hess had stabbed
another individual multiple times?
A: That was the information that we had at that
time shared with me by Chad Trisler.
Q: Well, “we.” Who is “we”?
A: Chad, uh, the information that was shared
with him, which in turn, following our pol-
icy, when we believe there’s information to
14 No. 16-1064
suggest a threat to the university commu-
nity, uh —
Q: But my question is, did Chad Trisler tell you
that he believed that Hess had stabbed an-
other individual multiple times?
A: Yes. Based on not him believing, but based
on information that we had received
through our community partners, uh, the in-
formation was shared that that is what was
believed to have occurred at that time.
Q: [S]o Chad Trisler told you that he had re-
viewed information that had been supplied
to him by your, quote, partners, which I take
it in this case was the Marion Police Depart-
ment, right?
A: I’m not exactly sure who the source was, but
it was police, law enforcement.
…
Q: And based on his review of that information,
he concluded, he told you that Hess had
stabbed another individual multiple times;
is that accurate?
…
A: Yes.
We agree with the district court that only a tortured reading
of these statements would permit an inference of predetermi-
nation on Trisler’s part. Read sensibly and as a whole, the tes-
timony clearly communicates that it was the police, not Tris-
ler, who initially thought Hess responsible for the stabbing,
No. 16-1064 15
and that SIU administrators simply credited those beliefs in
deciding whether to remove Hess temporarily from campus.
Nothing in these statements indicates that Trisler had conclu-
sively determined Hess’s guilt before the January hearing.
This leaves us with Hess’s assertion that Trisler was smil-
ing when the latter informed Hess of his interim suspension
in December 2013. Even if true, this evidence is insufficient to
overcome the presumption of impartiality. Smiling at an-
other’s misfortune may reflect malice, as Hess urges; but one
may also smile in sympathy, or to ease the tension of a difficult
moment—or simply out of awkwardness. And there is no
suggestion that Trisler’s facial expressions here were in fact
the product of bad faith. Trisler did not know Hess before
their December 2013 meeting, and thus had no reason to dis-
like him. Nor is there any evidence that Trisler knew the stab-
bing victim. The alleged smile is not enough to show an un-
acceptable likelihood of bias on Trisler’s part.
Moreover, even if Trisler had displayed bias, Hess was
able to (and did) appeal that administrator’s decision to an-
other adjudicative body. Trisler’s decision was considered—
and upheld—by a three-member panel of university employ-
ees, and later by Cheng, the university Chancellor. While Hess
implies that Cheng neglected to conduct an independent re-
view of the facts, and so effectively rubber-stamped the rec-
ommendations she received, there is no evidence reasonably
suggesting that this was the case. In any event, the decision to
expel, as just noted, was also reviewed by the three-member
appeals panel; and there is no contention that any of the latter
individuals was biased against Hess. Thus, to the extent
Hess’s procedural due-process claim rests on allegations of
bias, that claim suffers from a fatal flaw. Cf. Schacht v. Wis.
16 No. 16-1064
Dep’t of Corr., 175 F.3d 497, 503 (7th Cir. 1999) (no due-process
violation where the plaintiff could still obtain administrative
remedies from unbiased decision-makers), overruled on other
grounds by Higgins v. Mississippi, 217 F.3d 951 (7th Cir. 2000).
“Due process does not … require a judicial or quasi-judi-
cial trial … before a school may punish misconduct.” Coronado
v. Valleyview Pub. Sch. Dist. 365-U, 537 F.3d 791, 795 (7th Cir.
2008) (citations and internal quotation marks omitted). In ad-
dition to notice, the Constitution requires only that students
facing expulsion receive a meaningful opportunity to be
heard. Id.; Remer v. Burlington Area Sch. Dist., 286 F.3d 1007,
1010 (7th Cir. 2002) (citing Linwood v. Bd. of Educ., 463 F.2d 763,
769–70 (7th Cir. 1972)). Hess received exactly that. He had a
hearing, at which he was permitted to call witnesses, question
those witnesses, and testify on his own behalf; and he had
counsel, present with him and advising him, throughout that
proceeding. These procedural safeguards were constitution-
ally adequate.
B. Substantive Due Process
Because there is no fundamental right to education, see
Charleston, 741 F.3d at 774 (citing San Antonio Indep. Sch. Dist.
v. Rodriguez, 411 U.S. 1, 35–37 (1973)), Hess’s substantive due-
process claim, like his procedural claim, rests on the alleged
deprivation of an independent property or liberty interest, see
id. (citing Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603
(7th Cir. 2009)). We again suppose the existence of such an in-
terest here, and ask instead whether the alleged deprivation
of that interest was constitutionally problematic. To demon-
strate a substantive due-process violation, Hess must show
that the university’s actions were so wholly arbitrary as to
“shock[] the conscience.” Remer, 286 F.3d at 1013 (quoting
No. 16-1064 17
Dunn v. Fairfield Cmty. High Sch. Dist. No. 225, 158 F.3d 962,
965 (7th Cir. 1998)); see also id. (“Only the most egregious offi-
cial conduct is arbitrary in the constitutional sense.” (quoting
Dunn, 158 F.3d at 965)) (internal brackets and quotation marks
omitted).
Hess argues that Trisler’s conduct was egregious enough
to shock the conscience, because there was no evidence that
Hess had stabbed Aaron Franks. Thus, Hess contends, there
was no evidence supporting Trisler’s decision to expel Hess
from SIU, as the lesser charges of disorderly conduct, etc.,
would not have warranted such an extreme (and, according
to Trisler, rarely-used) sanction. It is true that not all of the
available evidence pointed to Hess as Franks’s attacker. Hess’s
girlfriend, for example, testified at the hearing that she had
been holding Hess’s hand before Hess had gone after Franks,
and that the two men had “never made bodily contact.” And
Officer Byrne testified that he did not think Hess had been
involved in the “incidents of battery” inside the bar. Byrne
also stated that the police had uncovered no evidence that
Hess had had a knife with him that morning.
Franks, however, had described his attacker, and that de-
scription—by Hess’s own admission—closely matched Hess’s
appearance on the morning in question. 4 Hess argues that
Trisler should not have given the description any weight, be-
cause Franks’s credibility was never tested. And it was never
tested, says Hess, because Franks was not called as a witness
4 Hess complains that Trisler referred to Franks’s description as an
“identification,” when in fact no line-up or other formal identification pro-
cedure was used. While a formal identification may have been stronger ev-
idence of Hess’s culpability, this does not mean that the description Franks
did provide ought not to have been considered at all.
18 No. 16-1064
at the hearing—an omission Hess seeks to lay at the feet of the
university. The criticism is misplaced. Trisler could have
asked Franks to attend the hearing, but Hess could have done
so, as well. Hess also could have asked Trisler to make the re-
quest on his behalf, as explained in Section 4.4 of SIU’s Stu-
dent Conduct Code. Hess did neither. And more importantly,
at the hearing, Hess did not communicate any reasons he may
have had for suspecting Franks was lying. 5 Trisler, mean-
while, had reason to be skeptical of Hess’s story. According to
Hess—as he explained to the police in November 2013 (and
as reflected in the police report provided to SIU)—he had run
after Franks because Franks had punched Hess’s sister in the
face. Yet the sister did not have on her face any markings in-
dicating she had in fact been hit there, and she did not seek
criminal charges against Franks until after her brother had
been arrested for the stabbing (which was almost a week after
the incident had taken place). Franks, moreover, was bleeding
from multiple stab wounds when the attack on Hess’s sister
purportedly took place. Trisler thought it odd—and we can-
not say he was wrong to so believe—that someone with
Franks’s injuries would act so aggressively toward a woman
he did not know.
We do not say that all signs pointed to Hess as the person
responsible for the stabbing. But there was enough evidence
of Hess’s culpability to preclude us from disturbing Trisler’s
assessment of guilt. See McDonald v. Bd. of Trs. of Univ. of Ill.,
375 F. Supp. 95, 102–03 (N.D. Ill. 1974) (explaining that a dis-
ciplinarian’s findings must be sustained where supported by
5For example, Hess now suggests that Franks knew him, and so
would have referred to him by name if Franks had actually intended to
identify Hess as Franks’s attacker.
No. 16-1064 19
“some,” but not necessarily substantial, evidence), aff’d and
adopted by McDonald v. Bd. of Trs. of Univ. of Ill., 503 F.2d 105(7th Cir. 1974). The Fourteenth Amendment is not a vehicle
for re-litigating in federal court evidentiary questions arising
in school disciplinary proceedings, or for correcting a univer-
sity’s allegedly bad decision-making. See Wood v. Strickland,
420 U.S. 308, 326 (1975); Flint v. City of Belvidere, 791 F.3d 764,
770 (7th Cir. 2015) (citations omitted). To succeed on his sub-
stantive due-process claim, Hess needed to show much more:
He needed to show that defendants acted with a mens rea ap-
proaching that of criminal recklessness. See Flint, 791 F.3d at
770 (citations omitted). Even when viewing the facts in Hess’s
favor, no reasonable juror would find such recklessness here. 6
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
6 Because there was no constitutional violation, we do not reach de-
fendants’ alternative argument that the individual administrators are
qualifiedly immune from suit.