CLARKSBURG – A motion for partial summary judgment has been filed in a lawsuit against West Virginia University by a former pharmacy student who claimed he was discriminated against due to his race and religion.

Basil Al-Asbahi claimed he was deprived of his constitutionally protected liberty and property interests in WVU’s School of Pharmacy’s Doctor of Pharmacy Degree Program by the defendants as a result of his dismissal in his final year purportedly for academic reasons because of a failing grade with Dr. Jay Martello, according to the March 1 motion for partial summary judgment.

Al-Asbahi claims he was not provided an opportunity to appeal or obtain review of the grade, which violated his procedural due process rights secured by the Fifth and 14th Amendments to the U.S. Constitution.

“Academic dismissals assuredly require more procedural safeguards than what Plaintiff received, i.e., none,” the plaintiff’s memorandum states. “In both Evans and North, the West Virginia Supreme Court held that due process afforded a state medical school student protection against a disciplinary dismissal by requiring a formal written notice of the charges; sufficient opportunity to prepare a rebuttal; an opportunity for retained counsel at any hearings; an opportunity to confront his accusers and to present exculpatory evidence; an unbiased hearing tribunal; and, an adequate record of the proceedings.”

To decide in the plaintiff’s favor, the court need not prescribe by metes and bounds minimum procedural due process safeguards for academic dismissals of students enrolled in state institutions of higher education, according to the memorandum.

“This Court can simply recognize the obvious: academic dismissals that implicate constitutionally protected property or liberty interests require some process for reviewing the dismissal decisions to insure they are careful and deliberate,” the memorandum states. “The zero process provided by Defendants to Plaintiff cannot be due process. Summary judgment on Count II of the Complaint should thus be entered in favor of Plaintiff.”

Al-Asbahi filed his lawsuit in the U.S. District Court for the Northern District of West Virginia.

The named defendants include the West Virginia University Board of Governors; the West Virginia University School of Pharmacy; Dr. Elizabeth Scharman; Dr. Terrence L. Schwinghammer; Martello; Dr. Patricia Chase; Dr. Lena Maynor; Dr. Mary Euler; Dr. Christopher C. Colenda; and Dr. Chadrick Lowther.

Al-Asbahi, who is of Arab descent and practices Islam, alleges in his complaint that his professors formed a conspiracy to “find an excuse” to dismiss him from WVU’s Doctors of Pharmacy Program.

He argues that his dismissal was motivated “in substantial part” by racial animosity towards his religion and his Arab/Middle Eastern descent.

Al-Asbahi, a graduate of Marshall University, was admitted to the pharmacy program in 2009. A tiny number of persons of Arab descent or Muslims are enrolled in the program, he noted in his complaint.

He was dismissed from the program in his fourth and final year, on Aug. 1, 2014.

He contends he has since been denied an opportunity to appeal the decision to the university’s Committee on Academic and Professional Integrity.

Al-Asbahi, who filed his lawsuit as a result of the denial, argues he was a “solid student” and made satisfactory progress in his academic and clinical studies, receiving satisfactory grades after what he describes as an “early stumble.”

He noted that dismissal of a student from the program in the final year “virtually never happens.”

“Defendants have a pecuniary interest in graduating all students from the Program in the expectation that they will later donate to Defendants’ endowment or otherwise,” he wrote in his 24-page complaint.

Among his allegations: Lowther, a cardiology clinical specialist at Charleston Area Medical Center Memorial Hospital, “brusquely and publicly scolded” Al-Asbahi for requesting a short dispensation to pray at a local mosque.

“In contrast, Defendant Lowther routinely granted corresponding religious dispensations for Christians and Jews,” Al-Asbahi alleges.

Lowther ultimately failed Al-Asbahi in his acute care rotation in critical care, the lawsuit states.

Clarksburg law firm Goddard & Wagoner PLLC is representing Al-Asbahi in the case.

Judge Irene M. Keeley has been assigned the case.

U.S. District Court for the Northern District of West Virginia; case number 1:15-cv-144

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