West Virginia Record

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Judge denies petition for temporary restraining order in Marshall Board of Governors lawsuit

By Kyla Asbury | Dec 30, 2016

General court 4

HUNTINGTON – Circuit Judge Paul T. Farrell denied a petition for temporary restraining order in a lawsuit against Marshall University Board of Governors after the petitioner claimed it made an illegal decision to expel him.

Joseph Chase Hardin filed the petition for temporary restraining order on Sept. 7 and a memorandum of law in opposition to that petition was filed on Sept. 12. On Sept. 14, a hearing was held. That same day, a response was filed by the petitioner.

The court ruled that the petitioner, while he will no doubt suffer harm because of his ban from face-to-face classes until his criminal case is resolved, the harm is not irreparable. The university represented that if he is acquitted of the charges, his scholarships and financial aid would remain in place.

“Moreover, while online classes alone will not be sufficient to complete his degree, he may take some classes via that medium and may also pursue some courses as a visiting student at other institutions. Alternately, he may complete his studies at the university upon a positive resolution of the criminal charges against him,” the order states.

The court ruled that granting of the requested TRP against the university could cause irreparable harm to its students since the petitioner has been charged with a serious sexual crime.

“The university’s paramount responsibility and concern is to ensure the safety of its students,” the order states. “The university’s decision to physically exclude a student under indictment for a sexually violent crime was appropriate, though this court will reiterate that the method for reaching such conclusion reasonably caused the petitioner indignation.”

The lawsuit was filed against the Board of Governors, Jerome Gilbert, Carla Lapelle, Lisa Martin and Debra Hart on Sept. 7 in Cabell Circuit Court.

On Feb. 1, a fellow student accused Hardin of having sex with her without her consent and he was ultimately absolved from the allegations after a hearing was conducted where evidence was presented to a panel chosen by the university.

Hardin claims after he was exonerated, Lapelle, the dean of student affairs, decided to review the decision based upon the “recent flurry of social media,” and unilaterally determined that the Conduct Hearing Board’s decision was not warranted.

That very same day, the interim dean overturned the CHB’s decision and Gilbert, the president of the university, ratified Lapelle’s decision and banned Hardin from the university, according to the suit.

Hardin claims no intent to appeal form was filed by the university or any of its representatives prior to the reversal of the decision and, despite the violation of his due process rights, he chose to appeal the illegal decision.

The plaintiff is suffering irreparable harm by being prohibited from attending the classes in which he has already enrolled and begun attending, according to the suit.

Hardin claims the improper expulsion will result on the loss of numerous scholarships he was awarded and the loss of the investment in books, supplies and a parking pass, among other things necessary for the continuance of his education.

Hardin is seeking a temporary restraining order prohibiting the university from enforcing its decision to expel him. He is being represented by Elizabeth Gardner Estep and J. Anthony Spenia of Estep & Spenia PLLC.

Cabell Circuit Court case number: 16-C-577

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