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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 21, 2023
No. 22-30588 Lyle W. Cayce
____________ Clerk
Andrew Babinski,
Plaintiff—Appellee,
versus
Kristin Sosnowsky, in her personal and official capacities as Chair of the
School of Theatre of Louisiana State University; Shannon Walsh; John
Fletcher; Alan Sikes,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:20-CV-426
______________________________
Before Richman, Chief Judge, and Stewart and Dennis, Circuit
Judges.
Carl E. Stewart, Circuit Judge:
Kristin Sosnowsky, Shannon Walsh, John Fletcher, and Alan Sikes
(collectively “the Professors”) appeal the district court’s denial of qualified
immunity after Andrew Babinski alleged that they violated his Fourteenth
Amendment right to due process by conspiring to prevent his continued
enrollment in Louisiana State University’s (“LSU”) theatre program.
Because the Professors’ conduct does not violate clearly established law, we
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REVERSE the district court’s determination that they were not entitled to
qualified immunity and DISMISS Babinski’s claims.
I. Background
A. Babinski’s Time at LSU
Babinski enrolled in LSU’s theatre doctoral program in 2017, where
he excelled in his coursework. His academic accomplishments garnered him
favor within the program, and he was invited to teach undergraduate students
and serve as a teaching assistant to Professor Fletcher. But his experience
took a turn for the worse in the Spring 2019 term when he enrolled in
Professor Walsh’s THTR 7923 course, “Gender, Sexuality, and
Performance.” According to Babinski, he thought he signed up for a semester
of critical discussions on gender and sexuality in performance but was
disappointed to find out that the class was largely skewed to Walsh’s
politically-progressive opinions.
Throughout the semester, Babinski alleges that he suffered hostility
and mistreatment from his classmates and Walsh in THTR 7923. He states
that his classmates regularly made fun of his opinions and were dismissive of
his views because they often differed from his peers’ assessments of the same
issues. He further claims that his mistreatment in the course only worsened
when he approached Walsh for help. He remained in the class despite his
perceived mistreatment because the course was necessary to progress in the
program.
Walsh required each student to write a term paper relevant to the
subject matter of the course to receive a passing grade in her class. Babinski
wrote his paper in a performative fashion, a writing technique he learned at
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LSU. 1 His paper criticized the Professors, the LSU theatre program more
generally, and his classmates in THTR 7923. Walsh was not amused. In fact,
she assigned him a failing grade for the course and immediately forwarded his
paper to Professor Sosnowsky, the Chair of LSU’s School of Theatre, for
additional review.
Sosnowsky read Babinski’s paper and was so troubled by its contents
that she submitted it to the LSU Police Department (“LSU Police”) and the
LSU Office of Student Advocacy and Accountability (“SAA”). The LSU
Police found no actionable security issues or threats in Babinski’s paper. SAA
came to the same conclusion and refused the Professors’ request for a “no
contact directive” issued against him. Having exhausted all administrative
avenues to no avail, Babinski alleges that the Professors took matters into
their own hands and conspired to prevent him from continuing in the theatre
program.
Babinski avers that the Professors sabotaged his efforts to appeal his
failing grade in THTR 7923. Specifically, he alleges that they intentionally
refused to follow LSU’s regulations for student grade appeals. For example,
the university required the Professors to have an initial discussion with
Babinski and find an amenable solution—he states that this never occurred
because they refused to meet or even correspond with him. Additionally, he
asserts that, under LSU’s grade-appeal regulations, he was entitled to “a
meeting with the department chair . . . and [relevant] professor within 14
days” of his appeal. Babinski states that this meeting never occurred either
_____________________
1
Babinski explains that “performative writing” is “a purposefully exaggerated
style whereby the writer is performing a concept or idea through language, manner and
form, in addition to its content.” While Babinski has not produced the paper in these
proceedings, he has conceded that it contained “strong language, expletives, and harsh
criticisms of various faculty members and peers[.]” He also included a disclaimer that his
paper was “performative and exaggerated” when turning it in to Walsh.
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and that Sosnowsky “instead solicited a single e-mailed statement from [him]
and [Walsh], from which she e-mailed them her ruling.” He maintains that
his appeal was only denied due to the Professors’ unfiltered bias and efforts
against him.
Babinski states that his failed appeal process was only the beginning of
his problems. Losing his appeal meant keeping his failing grade, which placed
him on academic probation, and forfeited his graduate-assistantship stipend.
He claims that the Professors routinely made direct petitions to the graduate
school to obtain a waiver for continued funding if a student lost funding due
to an academic misstep. But that they took no such measures for him as part
of their scheme to force his withdrawal from the program.
Babinski also claims that the Professors held a secret disciplinary
meeting after his grade appeal but before he returned for the Fall 2019
semester. At this meeting, which he was allegedly prohibited from attending,
he avers that the Professors determined that they would do whatever was
necessary to prohibit him from continuing in the theatre program. 2 This
included the Professors’ refusals to: (1) teach him in any additional courses,
especially required courses like THTR 7923; (2) convene a dissertation panel
for him; and (3) administer his general examinations. He states that each of
these actions were independently sufficient to ensure that he was unable to
continue in or complete the theatre program.
The Professors’ alleged campaign against Babinski culminated in the
Dean advising him that there was no way for him to progress in the Ph.D.
program because none of the Professors wanted to teach him or serve on a
dissertation committee for him. Babinski states that the Dean explained to
_____________________
2
Babinski explains that he was only permitted to provide a statement to be read
and summarized by one of the Professors at the meeting.
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him that the Professors expected his withdrawal from the theatre program as
soon as possible.
Babinski alleges, however, that LSU’s regulations provided him with
an alternative route to convene a dissertation committee that did not include
any of the Professors. He claims that the Dean and the Professors
intentionally withheld this information from him to ensure his departure
from the program. In support, he highlights that the Professors permitted a
similar arrangement for a different student in the same program as him.
Additionally, he asserts that LSU’s regulations permitted him to obtain
credit for his remaining required course, THTR 7923, through independent
study. He states that this is another option that the Professors knew was
available yet refused to inform him of in an ongoing effort to mislead him into
believing that he had no options to continue in the theatre program.
Babinski took a full courseload in the Fall 2019 term, consisting of one
unrequired theatre course and three classes that he needed for his minor
concentration. During this semester, he also claims to have made multiple
attempts at remedying his issues with the Professors. He states that these
efforts were all fruitless as they refused to change their stance on his
progression in the theatre program. He ultimately cut his losses and
withdrew, instead pursuing and obtaining a second master’s degree in the
philosophy department. He sued the Professors in federal court.
B. District Court Proceedings
At the district court, Babinski advanced numerous constitutional
claims against the Professors, each deriving from his assertion that they
violated his right to procedural due process by conspiring and accomplishing
a de facto expulsion. The Professors moved to dismiss his claims on qualified
immunity grounds. The district court partially held in their favor, granting
them qualified immunity on all of Babinski’s claims except his: (1) property-
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interest procedural due process claim and (2) liberty-interest procedural due
process claim against Sosnowsky.
On Babinski’s property-interest due process claim, the district court
reasoned that none of the Professors were entitled to qualified immunity
because he sufficiently alleged that they effected a de facto expulsion without
affording him a meaningful opportunity to state his case for remaining in the
program. It relied on his argument that the Professors willfully circumvented
LSU’s policies to deprive him of any process. Furthermore, citing Goss v.
Lopez, 419 U.S. 565 (1975) and Plummer v. Univ. of Hous.,
860 F.3d 767, 773
(5th Cir. 2017), as revised (June 26, 2017), it held that he cited caselaw clearly
establishing that the Professors’ conduct violated his due process rights as an
LSU student.
Regarding Babinski’s substantive due process claim against
Sosnowsky, the district court proceeded under the stigma-plus doctrine. 3 It
held in his favor because he alleged that Sosnowsky made false claims about
him to harm his reputation and withheld mitigating information from LSU
Police, SAA, and other university representatives. It stated that Sosnowsky’s
actions violated Babinski’s liberty interest in his reputation, good name, and
integrity.
In sum, the district court concluded that the Professors “knew or
should have known that it would be unconstitutional for them to force
Babinski out of the Program without sufficient process, so qualified immunity
_____________________
3
The stigma-plus doctrine recognizes the liberty interest that an individual has in
his good name and reputation. To make out a stigma-plus claim, a plaintiff must
demonstrate that: (1) he has suffered a stigma from some government action; plus (2) he
experienced the extinguishment of a right of status previously recognized by state law. San
Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991).
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is inappropriate as to the procedural due process claims.” The Professors
timely appealed.
II. Standard of Review
We review a district court’s denial of a motion to dismiss asserting
qualified immunity de novo, accepting all well-pleaded facts as true and
viewing them in the light most favorable to the plaintiff. See Brown v. Miller,
519 F.3d 231, 236 (5th Cir. 2008). A plaintiff attempting to overcome
qualified immunity at the Rule 12(b)(6) stage must plead facts that allow this
court to reasonably infer that the defendant is liable for the harm alleged. See
Arnold v. Williams,
979 F.3d 262, 267 (5th Cir. 2020).
III. Discussion
“To be entitled to the procedural protections of the Fourteenth
Amendment,” Babinski must show that he was “deprived [] of either a
‘liberty’ or a ‘property’ interest.” Bd. of Curators of Univ. of Mo. v. Horowitz,
435 U.S. 78, 82 (1978). If there is a liberty or property interest at stake and
due process applies, “the question remains what process is due.” Morrissey
v. Brewer,
408 U.S. 471, 481 (1972).
As an initial matter, we note that, although the district court
determined that there was a liberty and property interest at stake, the
Professors do not challenge this holding. Accordingly, the issue is forfeited
on appeal. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021)
(“A party forfeits an argument . . . by failing to adequately brief the argument
on appeal.”).
The Professors do challenge the district court’s determination that
Babinski received inadequate process. They argue that the district court: (1)
incorrectly held that they violated Babinski’s due process rights; and (2)
erroneously relied on the Supreme Court’s decision in Goss and this court’s
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decision in Plummer to hold that they were on notice that their alleged
campaign against Babinski’s continued enrollment in LSU’s theatre program
violated his constitutional right to due process. See 419 U.S. at 465;
860 F.3d
at 767. Specifically, they contend that the district court ignored that Babinski
received the only process he asked for and that it analyzed the clearly
established prong of the qualified immunity analysis at too high a level of
generality. On the latter point, they maintain that Goss and Plummer are too
dissimilar from the instant case to have provided the Professors sufficient
notice of their allegedly unconstitutional behavior. We agree with the
Professors’ latter argument and reverse in their favor.
“Qualified immunity operates to ensure that before they are subjected
to suit, [public officials] are on notice their conduct is unlawful.” Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (internal quotation and citation omitted).
“When a defendant invokes qualified immunity, the burden is on the plaintiff
to demonstrate the inapplicability of the defense.” Ramirez v. Guadarrama,
3 F.4th 129, 133 (5th Cir. 2021) (quotation and citation omitted). This
demonstration requires a plaintiff to allege both “(1) the violation of a federal
constitutional or statutory right; and (2) that the right was clearly established
at the time.”
Id. (citation omitted). These inquiries may be addressed in
“whatever order [this court] deems most expeditious.”
Id. (citing Pearson v.
Callahan,
555 U.S. 223, 236 (2009)).
“A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotations and
citation omitted). The Supreme Court has cautioned appellate courts on
“defin[ing] clearly established law at too high a level of generality.” City of
Tahlequah v. Bond,
142 S. Ct. 9, 11 (2021). “Although we do not require a
case directly on point . . . there must be adequate authority at a sufficiently
high level of specificity to put a reasonable official on notice that his conduct
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is definitively unlawful.” Walsh v. Hodge, 975 F.3d 475, 485–86 (5th Cir.
2020) (internal quotations and citation omitted) (emphasis in original); see
also Ashcroft v. al–Kidd,
563 U.S. 731, 741 (2011) (“We do not require a case
directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.”).
A. Constitutional Violation
To defeat the Professors’ qualified immunity defense, Babinski had to
assert a “violation of a federal constitutional or statutory right[.]” Ramirez,
3 F.4th at 133. At the district court, he argued that the Professors violated his
constitutional right to procedural due process by failing to offer him notice
and an opportunity to be heard before de facto expelling him from the Ph.D.
program. 4 The district court embraced his de-facto-expulsion theory,
agreeing that the Professors’ conduct left him no choice but to withdraw from
his desired program and settle for a completely different degree.
Babinski’s de-facto-expulsion theory is particularly important here
because the characterization of his allegations is key to identifying the level
of process that he was due. The Supreme Court has drawn a fine line
differentiating the process required for students facing discipline actions, as
opposed to academic actions which require less procedurally. Ekmark v.
Matthews, 524 F. App’x 62, 64 (5th Cir. 2013) (per curiam) (unpublished)
(quoting Horowitz,
435 U.S. at 86). If a student faces certain disciplinary
consequences, due process requires an “oral or written notice of the charges
against him and, if he denies them, an explanation of the evidence . . . and an
opportunity to present his side of the story.” Goss,
419 U.S. at 581. Applying
_____________________
4 Other courts have recognized a de facto expulsion as a penalty subject to review
under the due process standard. See e.g., G.C. v. Owensboro Pub. Sch., 711 F.3d 623, 631 (6th
Cir. 2013) (“[T]he concept of de facto expulsions is not new to this court.”) (citing cases).
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this standard, the Supreme Court in Goss determined that a school’s
suspension of multiple disruptive students without notice and a hearing was
a violation of the students’ due process rights. Id. at 579.
In Horowitz, the Court distinguished Goss, holding that “there are
distinct differences between decisions to suspend or dismiss a student for
disciplinary purposes and similar actions taken for academic reasons which
may call for hearings in connection with the former but not the latter.” 435
U.S. at 87, 88–89. The student in Horowitz sought to challenge her dismissal
from medical school after several academic deficiencies, though she was
informed of her impending risk of dismissal and the school’s dissatisfaction
with her performance.
Id. at 80–82. The Court rejected her claim reasoning
that an academic decision is “by its nature more subjective and evaluative
than the typical factual questions presented in the average disciplinary
decision.”
Id. at 89–90. Leaving the contours undefined, the Horowitz Court
determined that academic deficiencies require “far less stringent procedural
requirements.”
Id. at 86; see also Davis v. Mann,
882 F.2d 967, 975 (5th Cir.
1989) (explaining that a student subject to an academic dismissal is entitled
to “some meaningful notice and an opportunity to respond”).
Traditionally, a student’s procedural due process claim falls within
one of two arenas—academic deficiencies or disciplinary misconduct. See
Horowitz, 435 U.S. at 87. The unique factual scenario here does not fit
squarely into either category. In his complaint, Babinski alleges that his de
facto expulsion is more tantamount to a disciplinary decision, and the district
court construed his claims as such. To be sure, the chain of events certainly
begins with an academic exercise, including his completion of a paper,
obtaining a grade, and disputing the grade. His federal lawsuit, however, does
not challenge or focus on the grade he received, nor does he allege that it was
the crux of his de facto expulsion. He instead pleads that his de facto
expulsion derives from the views that he expressed in his paper. Specifically,
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he takes issue with the Professors’ conduct in response to his paper, such as
their actions after issuing his failing grade that effectively froze him out of his
chosen discipline. These actions include the secret meeting at which they
refused to teach him in the theatre program and their individual and
collective efforts to intentionally withhold information from him to ensure
his departure from the program.
Given these facts and accepting Babinski’s de facto expulsion
allegations as true, as we must at this stage, we assume, without deciding,
that Babinski has pleaded a violation of the Fourteenth Amendment due
process protections. See Brown, 519 F.3d at 236 (explaining that we view well-pleaded facts “in the light most favorable to the plaintiff”). But our inquiry
does not end here. To defeat qualified immunity, Babinski must satisfy the
clearly established prong of the analysis. See Mullenix,
577 U.S. at 11
(requiring a plaintiff to also establish that the injury to his constitutional right
was “sufficiently clear that every reasonable official would have understood
that what he [was] doing violate[d] that right”). As we will explain, he fails
to satisfy his burden by misconstruing caselaw at too high a level of generality.
See Bond, 142 S. Ct. at 11.
B. Clearly Established Law
As we previously observed, the district court reached this part of the
qualified immunity analysis after holding that the Professors violated
Babinski’s constitutional rights by de facto expelling him from the LSU
theatre program. It then held that the Supreme Court’s decision in Goss and
this court’s in Plummer clearly established the Professors’ conduct as
violative of his Fourteenth Amendment right to due process. Assuming
arguendo that Babinski’s de facto expulsion from a university academic
program was a constitutional violation, we disagree with the district court’s
analysis of the governing caselaw under the clearly established prong.
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In Goss, the Supreme Court considered a district court’s
determination that an Ohio law allowing the suspension of students without
a hearing in a reasonable timeframe violated the students’ procedural due
process rights. See 419 U.S. at 565–67. While the Court acknowledged the
importance of allowing public schools deference in running the day-to-day
affairs, it still held that:
Students facing temporary suspension have interests
qualifying for protection of the Due Process Clause,
and due process requires, in connection with a
suspension of 10 days or less, that the student be given
oral or written notice of the charges against him and, if
he denies them, an explanation of the evidence the
authorities have and an opportunity to present his side
of the story. The Clause requires at least these
rudimentary precautions against unfair or mistaken
findings of misconduct and arbitrary exclusion from
school.
Id. at 581. Ultimately, the Court cabined its decision to suspensions not
exceeding ten days but explained that “[l]onger suspensions or expulsions
for the remainder of the school term, or permanently, may require more
formal procedures.” Id. Importantly, it never considered whether the publicschool official’s actions tainted or undermined any process that the students
received. Instead, its primary consideration was whether the students were
entitled to any process at all, and if so, to what degree.
In Plummer, two expelled students brought procedural due process
and Title IX claims against the University of Houston (“UH”), alleging that
the disciplinary proceedings that they were subjected to were constitutionally
deficient. See 860 F.3d at 767. The district court granted summary judgment
to UH and a panel of this court affirmed. We first explained that our role in
university-student disputes is not to “second-guess[]” the university’s
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disciplinary determinations. Id. at 772–73 (quoting Wood v. Strickland,
420
U.S. 308, 326 (1975)). Rather, our duty is merely to ensure “the presence of
fundamentally fair procedures to determine whether the misconduct ha[d]
occurred.”
Id. (quoting Goss,
419 U.S. at 574). Accordingly, we noted that
“[w]hether a state university has provided an individual student sufficient
process is a fact-intensive inquiry and the procedures required to satisfy due
process will necessarily vary depending on the particular circumstances of
each case.” Id. at 777.
While we considered the students’ allegations that the process they
received was riddled with a UH official’s bias, we never explored any
conspiracy by UH officials against the students. See id. at 776–77 (rejecting
Plaintiffs’ argument that a biased official’s actions prevented them from
cross-examining a witness in their expulsion proceedings). Nor did the
students ever allege that such a conspiracy occurred. We ultimately
concluded that the students received due process and that their
constitutional rights remained intact. Id. Notably, that determination
effectively ended our qualified immunity inquiry. Id. Only a forced
interpretation of Plummer would allow us to hold that it established anything
that happened in Babinski’s pleadings.
Both Goss and Plummer solidify that students, like Babinski, have a
Fourteenth Amendment right to some degree of procedural due process
before or shortly after university officials take certain adverse actions against
them. See 419 U.S. at 581 (“Students facing temporary suspension have
interests qualifying for protection of the Due Process Clause.”);
860 F.3d at
773 (explaining that students are entitled to a “fundamentally fair”
disciplinary process). However, neither case involved, alleged, or even
mentioned an underlying conspiracy to block a student from enjoying that
right. Additionally, neither case dealt with the alleged tainting of the process
that a school or university provided to a student. True, qualified immunity
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does not require precedential exactitude or a case “directly” on point. Walsh,
975 F.3d at 485 (emphasis in original). But both of Babinski’s proffered cases
miss the mark by failing to address conduct like the Professors’ in this case.
Absent an appropriately analogous case of greater specificity, we cannot
uphold the district court’s denial of qualified immunity. See Bond, 142 S. Ct.
at 11.
Fifth Circuit precedent also forecloses Babinski’s argument that the
mere existence of his right to due process provides fair warning to the
Professors for all conduct that he alleges might violate that right. See Walsh,
975 F.3d at 487. In Walsh, a professor brought a
42 U.S.C. § 1983 suit against
the university in which he taught, alleging that it fired him without adequate
due process for his alleged sexual harassment of a student. Id. at 478. The
district court denied the university and its officials qualified immunity. Id. A
panel of this court reversed, explaining that “the ‘sine qua non of the clearlyestablished inquiry is “fair warning.”’” Id. at 486 (quoting Morgan v.
Swanson,
659 F.3d 359, 372 (5th Cir. 2011) (en banc)). The panel continued
that while it is “clearly established that due process for a terminated
professor includes ‘a meaningful opportunity to be heard in his own
defense,’” there was no caselaw speaking “directly to the procedures
necessary to protect a professor’s interest in avoiding career-destruction
after being accused of sexual harassment.”
Id.
The same is true here. Babinski is asking us to do precisely what the
Walsh panel refused to do: hold that his right to a meaningful opportunity to
be heard put the Professors on notice that their conduct in this case was
unconstitutional. Id. at 487 (“Nor can we hold, as Walsh contends, that a
meaningful opportunity to be heard should have put Defendants on notice
that their actions were unlawful.” (internal quotation omitted)). Babinski’s
argument gains no more traction here than Walsh’s did there for precisely
the same reason: he cannot point to any controlling caselaw that would have
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put the Professors on notice that his due process rights were violated in a
similar procedural context. In other words, against the Rule 12(b)(6)
backdrop, Babinski concedes that he was never expressly expelled from the
university. His pleadings likewise acknowledge that, after he alleges that he
was de facto expelled, he continued to enroll in courses and ultimately
obtained his degree from the university. But we have no caselaw “that speaks
directly to the procedures necessary” to protect a student who claims he was
de facto expelled from a university, yet continued to enroll in classes and
receive a degree from the same university after the point in time that he
alleges he was de facto expelled. Id. at 486. As the Walsh panel explained, the
clearly established standard requires more than that—there must be a “high
degree of specificity” between the alleged misconduct and the caselaw
purporting to clearly establish the violation.
Id. at 487. Without it, the
requisite “fair warning” required under the clearly established inquiry is
absent.
Id. at 486.
For these reasons, we hold that the Professors lacked adequate notice
that their conduct was violative of Babinski’s constitutional rights and
because they did not have this notice, they are entitled to qualified
immunity. 5 See Hope, 536 U.S. at 739.
IV. Conclusion
For the foregoing reasons, we REVERSE the district court’s denial
of qualified immunity and DISMISS Babinski’s claims against the
Professors.
_____________________
5
Both parties make competing arguments on whether the Professors could pursue
their qualified immunity argument at a subsequent stage of litigation proceedings. We do
not address those concerns due to our holding herein.
15
