With its 60-day grace period up, the University's General Counsel Office is expected today to file a motion to dismiss the $1.25 million lawsuit filed by College student Richard W. Smith following his two-year suspension.
Smith filed the lawsuit against the University in United States District Court July 21, claiming his constitutional due process rights were violated during disciplinary proceedings against him.
The suit named all members of the Board of Visitors, University President John T. Casteen III, William W. Harmon, vice president for student affairs, and the seven University Judiciary Committee members who tried and expelled Smith Nov. 21. The suit does not seek damages against the students.
Casteen suspended Smith for two years for his involvement in the Nov. 21, 1997 assault on then first-year College student Alexander "Sandy" Kory above the Ruffner Footbridge on Newcomb Road.
Kory has said he sustained a broken jaw and incurred $3,000 in medical expenses from the attack.
University Relations Director Louise Dudley said that she expected the motion to be filed today.
A motion to dismiss assumes hypothetically that a charge is factually true and presents the presiding judge with arguments why the charges should be thrown out regardless.
"Assuming all the facts are true, the motion to dismiss argues that nothing matters because the law hasn't been broken," said Dan Ristrepu, University Law School alumnus and federal court employee.
"What the University is effectively saying is that [Smith] stated a case and it should be thrown out," said Guy Farmer, University Law School alumnus and Florida attorney.
In federal courts, defendants are allowed 60 days in which to file motions to dismiss.
According to attorneys, motions to dismiss are almost always filed regardless of its chances of success.
"It's pretty common to file a motion to dismiss," Farmer said.
The motion "could stop [Smith's suit] but it might not," he added.
University General Counsel Paul Forch and Smith's attorney, Francis McQ Lawrence, declined to comment.
Among several points, Smith contends in the lawsuit that Casteen violated his due process rights.
"Without providing Mr. Smith with notice or an opportunity to be heard, Defendant John Casteen, President of the University, rejected the findings of the panel that had heard the evidence and made his own findings... Defendant Casteen, the true decision-maker, gave Mr. Smith no hearing at all; he merely rendered an edict-and rendered it arbitrarily, capriciously, and without due process of law," the lawsuit states.
Casteen could not be reached for comment.
While the lawsuit does not seek monetary compensation from any students, it does name seven.
University Judiciary Committee Chairman Brian Hudak said that defendants are always afforded due process within the UJC system.
"We follow the procedure outlined by our constitution and laid forth by the Board of Visitors and we follow those to the best of our ability," Hudak said.
"As long as we follow our procedures the [defendant] is afforded due process," he said.
Hudak said that he has been contacted by the General Counsel Office but declined to elaborate.
Smith was not present at his Nov. 21, 1998 student disciplinary hearing. He has said that William W. Harmon, vice president for student affairs, told him the hearing would be postponed. The trial took place despite Smith's absence, a practice that is in accordance with UJC bylaws.
The all-student trial panel voted to expel Smith along with other students involved with the assault, College students Harrison Kerr Tigrett and Bradley Kint.
Smith, Kintz and Tigrett appealed the UJC's expulsion decision and were granted a new trial by the Judicial Review Board.
The JRB remanded the case back to the UJC. But the UJC retrial, scheduled for April 17, did not take place as the trial chairwoman stepped down from the case and the three student prosecutors resigned in fear of being sued.
The UJC then sent the case to Harmon for adjudication.
A Harmon-appointed fact-finding panel convened May 17 and listened to testimony from both Kory and Smith, Kintz and Tigrett, before sending its recommendations to Casteen.
The panel recommended that Smith be suspended for two semesters, with the summer session counting as one semester, and that Tigrett and Kintz each be suspended for one semester.
Casteen then upped the sanctions of both Smith and Tigrett, deciding to suspend Smith for two years and Tigrett for one. He adopted the panel's sanction recommendation for Kintz.
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