Another Foltz-Related Lawsuit Filed Against BGSU

 Ilana Linder, Fraternal Law Partners, Ilana.Linder@manleyburke.com

A few months ago, the family of Stone Foltz, a BGSU student who passed away following the Pi Kappa Alpha Chapter’s Big/Little night, filed a civil lawsuit against Bowling Green State University (BGSU) in the Ohio Court of Claims.^[1] That case is still pending.

Before that, BGSU was served with a different lawsuit related to Stone Foltz’s death, this one filed by Chase Weiss, a former Pi Kappa Alpha member, in the Northern District (federal) Court of Ohio. Weiss, who was suspended by BGSU for eight (8) years following the University’s investigation into Stone’s death, brought several claims against BGSU, along with several BGSU employees in their individual and official capacities, that related to potential violations of procedural due process. For example, Weiss claimed that the University’s refusal to allow him to proceed in a separate, rather than group, hearing, along with the school’s admission of hearsay statements during the hearing and inflammatory/prejudicial statements contained in the notice of allegations, deprived him of procedural due process protections. Weiss also took issue with the hearing panel’s refusal to allow him to cross-examine his “accuser.”

The Defendants all moved to dismiss the Complaint, mostly on the ground that the federal district court lacked jurisdiction to hear claims brought against a public college in Ohio. The federal court agreed, promptly dismissing all claims against BGSU and the employees (in their official capacities). Simply put, Weiss sued in the wrong court by not bringing his suit in the Court of Claims. Additionally, even if the claims had been brought in the correct court, sovereign immunity would have applied to protect the state employees who were acting in their official capacities, further warranting dismissal.

With respect to the claims asserted against the employees in their individual capacities, the court went on to dismiss all but one of Weiss’s claims. Here, the Court was not convinced that the admission of any hearsay statements or allegations containing inflammatory or prejudicial remarks deprived Weiss of any procedural protections. Rather, the Court reasoned that not only do the formal rules of evidence not apply during university disciplinary proceedings, but also that Weiss’s ability to address and refute any such statements during his hearing satisfied the minimal due process requirements.

The only claim that survived dismissal at this stage was Weiss’s belief that he should have been able to cross-examine his accuser, and that the hearing panel chair’s refusal to allow him to do so constituted a due process violation. Accordingly, this single claim against only the hearing panel chair is allowed to proceed, for now.

Unlike in a common Title IX matter, in which there is an identifiable “accuser,” in university disciplinary matters such as this one, it is the University, not a single person, that is technically the “accusing” or “reporting” party. To the extent Weiss was permitted to ask questions of the University’s investigator(s), he arguably was provided an opportunity to “cross-examine” his “accuser.” Accordingly, just because this claim survived the (low-bar) standard applicable to motions to dismiss, it is unlikely that this claim will ultimately succeed.  It appears the court may have confused the cross-examination standard applicable in cases involving party-credibility issues, such as sexual misconduct/Title IX cases, with the due process requirements applicable in a matter like this in which the credibility of the parties is not at the heart of the issue.

Weiss has already filed a Notice of Appeal, seeking to challenge the court’s dismissal of the majority of his claims. We will continue to monitor this case and provide updates as the matter proceeds.

[1] See Gracie Woodyard, Stone Foltz Parents Sue Bowling Green State University, 176 Fraternal L. 1, 5 (Sept. 2022).