                                                          EFiled: Aug 22 2014 01:18PM EDT
                                                          Transaction ID 55927702
                                                          Case No. 9683-VCN
                              COURT OF CHANCERY
                                    OF THE
                              STATE OF DELAWARE

                                                                417 SOUTH STATE STREET
 JOHN W. NOBLE                                                  DOVER, DELAWARE 19901
VICE CHANCELLOR                                                TELEPHONE: (302) 739-4397
                                                               FACSIMILE: (302) 739-6179


                                    August 22, 2014



Elizabeth C. Fillingame, Esquire                James D. Taylor, Jr., Esquire
Grady & Hampton, LLC                            Saul Ewing LLP
6 North Bradford Street                         222 Delaware Avenue, Suite 1200
Dover, DE 19904                                 Wilmington, DE 19801

      Re:    Jenkins v. Delaware State University
             C.A. No. 9683-VCN
             Date Submitted: August 14, 2014

Dear Counsel:

      Plaintiff seeks injunctive relief and monetary damages for due process and

contractual violations resulting in her dismissal from the Nursing Program at

Delaware State University. Defendants argue that they respected all of Plaintiff’s

constitutional and contractual rights after she violated the Nursing Program

Handbook and clinical course syllabus.1




1
  The parties agreed to submit their dispute to the Court for resolution on a paper record
in lieu of trial.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 2


                                       ***

      Plaintiff Jordan Jenkins was a senior in the Nursing Program at Defendant

Delaware State University (“DSU”) in fall 2013. Dr. Marsha Horton, Dean of the

College of Education, Health and Public Policy, and Dr. Carol Sando, then Chair

of the Nursing Department, are also named defendants.

      As part of a mandatory Community Health Nursing course, Ms. Jenkins

participated in a clinical program at Dover Interfaith Mission for Housing

(“Interfaith”), an off-campus homeless shelter for men.2 Dr. Jodi Dampeer-Moore

taught the lecture portion of the class, and Dr. Yvonne Stringfield supervised the

clinical portion.3 On October 10, 2013, Ms. Jenkins and her classmates reported to

Interfaith for a clinical scheduled from 1:00-6:45 p.m.4 Because only one resident

arrived for a head-to-toe assessment by the students, Dr. Stringfield allowed the

students to leave around 2:15 p.m. with instructions to return by 4:30 p.m.5




2
  Jenkins Dep. 47.
3
  Jenkins Dep. 35-36.
4
  Am. Compl. ¶ 11.
5
  Jenkins Dep. 61.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 3


      During the break, Ms. Jenkins and a number of her classmates went to

Cheddar’s where four students, including Ms. Jenkins,6 ordered alcoholic

beverages.7 Ms. Jenkins ordered a strawberry margarita and drank half of it.8 She

returned to Interfaith at 4:30 p.m., made her presentation on a health topic

sometime after 5:00 p.m., and left the site at 6:30 p.m.9 Dr. Stringfield oversaw

Ms. Jenkins that afternoon and “was not aware of any violation” of the Nursing

Handbook policy on substance use.10

      Dr. Dampeer-Moore first learned of the drinking on October 14, 2013

through a report from another student in the clinical.11      A second student

corroborated the allegation.12 Dr. Dampeer-Moore discussed the allegations with

Dr. Sando.13 On October 15, 2013, the two invited Ms. Jenkins to Dr. Dampeer-

Moore’s office and asked Ms. Jenkins questions about the incident.14       After

Ms. Jenkins admitted ordering a drink, Dr. Dampeer-Moore and Dr. Sando
6
  Ms. Jenkins was 21 years old at the time.
7
  Horton Dep. 8.
8
  Jenkins Dep. 64, 72.
9
  Jenkins Dep. 64-65.
10
   Horton Dep. 53.
11
   Dampeer-Moore Aff. ¶ 5.
12
   Id.
13
   Dampeer-Moore Aff. ¶ 6.
14
   Dampeer-Moore Aff. ¶ 6; Jenkins Dep. 79-80.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 4


informed Ms. Jenkins that she had violated the Nursing Department’s rules,

pointing specifically to the provision in the Community Health Nursing Syllabus

that states, “Any student under the influence of any illegal medication or drug will

automatically be dismissed from the course and program.”15             Dr. Sando then

suspended Ms. Jenkins from classes and clinical, recommending that Ms. Jenkins

research the definition of “under the influence.”16 Ms. Jenkins followed up the

next day with an email attachment suggesting that her maximum blood alcohol

content, assuming that she weighed 120 pounds and drank one margarita, would

have been 0.03%.17

      During the weekend of October 19, 2013, Ms. Jenkins received a letter of

expulsion from Dr. Sando, dated October 16,18 which stated:

      This letter provides formal notification of your dismissal from the
      course: NURS409 C Community Health Nursing Clinical and from
      the nursing program, as a result of your violation of the course
      syllabus rules of student conduct. As cited on page 10 [sic]: “Any
      student under the influence of any illegal medication or drug will
15
   Jenkins Dep. 82-83 (quoting from the course syllabus which appears as Exhibit E to the
Defendants’ Answering Brief). Email correspondence between Ms. Jenkins and
Dr. Sando on October 18, 2013 confirms that they discussed this specific policy in the
course syllabus. Pl.’s Opening Br. App. 3.
16
   Jenkins Dep. 83-84.
17
   Pl.’s Opening Br. App. 9-11.
18
   Jenkins Dep. 85.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 5


      automatically be dismissed from the course and program.”
      Furthermore, sanctions for students under the influence are stipulated
      in the Delaware State University Department of Nursing Handbook
      policy governing dismissal from clinical for students who exhibit
      “Suspicion of/evidence of substance abuse, use, influence or
      intoxication” (Pre-Licensure/ Baccalaureate Degree Key Information
      for New and Continuing Students Fall 2012-Spring 2013, p. 32).19

In addition, the letter informed Ms. Jenkins that the Nursing Department had

forwarded the matter to the Student Judiciary Board for a hearing on violations of

DSU’s Student Code of Conduct.20 Dr. Sando suggested that Ms. Jenkins should

choose a different major and meet with a faculty advisor to do so.21

      On October 21, 2013, Ms. Jenkins, her mother, and her step-father met with

Dr. Stringfield, Dr. Dampeer-Moore, Dr. Sando, and Dean Horton in multiple

meetings.22   During the first meeting with Dean Horton, Ms. Jenkins

misrepresented that she thought she had ordered a virgin drink and stopped

19
   Pl.’s Opening Br. App. 2. There appears to be some confusion about the difference
between the Key Information for New and Continuing Students referenced in the
expulsion letter and the Nursing Program Handbook. Horton Dep. 16-17. The Court will
refer to the Nursing Program Handbook, since the language relevant to the alleged
violation is substantially the same in both documents. Compare Pl.’s Opening Br.
App. 59-60, with Defs.’ Answering Br. Ex. D at 51-53.
20
   Pl.’s Opening Br. App. 2. Ms. Jenkins has admitted to violating the Student Conduct
Code and had been placed on probation until December 31, 2014. Pl.’s Opening Br.
App. 6-8.
21
   Pl.’s Opening Br. App. 2.
22
   Jenkins Dep. 94-97.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 6


drinking once she realized it contained alcohol.23 Concerned that the “dismissal

may have been unwarranted,” Dean Horton contacted Dr. Dampeer-Moore and

Dr. Sando “immediately” to schedule a second meeting that day.24 Ms. Jenkins

later admitted that she had lied to Dean Horton and apologized.25 Nonetheless,

Dean Horton agreed to reconsider the dismissal at Ms. Jenkins’ parents’ request.26

Dean Horton later informed Ms. Jenkins in a letter, dated October 28, 2013, that

her dismissal would be upheld.27

       Dean Horton explained during the course of this litigation that Ms. Jenkins

was ultimately dismissed “[f]or consuming alcohol while she was on duty which

contributes to unsafe nursing practice.”28 The Nursing Department conducts a

mandatory student orientation at the beginning of each school year to review “the



23
   Horton Aff. ¶ 3.
24
   Horton Aff. ¶ 4.
25
   Horton Aff. ¶ 5.
26
   Horton Aff. Ex. A.
27
   Pl.’s Opening Br. App. 5.
28
   Horton Dep. 56-57. In particular, “[b]y consuming alcohol while on duty, that opened
the door for her behavior to be modified. By consuming alcohol and then getting in a car
and driving students back to a clinical site, [Ms. Jenkins] potentially put herself in danger
and the others in the car. By coming back to a site where . . . some of the clients are
recovering alcoholics, there was the potential there for psychological or social harm.”
Horton Dep. 55.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 7


rules and expectations of the Nursing Program.”29 During the fall 2013 orientation,

Dr. Dampeer-Moore “emphasized the Nursing Program’s position that the use of

alcohol or any substance (legal or not) that has the potential to impact a student’s

performance is strictly prohibited while the student is in, or preparing for,

clinical.”30 The Nursing Program Handbook states that “[a] nursing student may

be dismissed from or not permitted to attend a clinical practice setting by nursing

faculty responsible for directing the clinical learning experience”31 for, among

other reasons, “evidence of substance abuse, use, influence or intoxication.”32 The

Nursing Program Handbook informs that “[u]nsafe nursing practice” is reason for

dismissal from the Nursing Program,33 and “unsafe clinical performance” is reason

for dismissal from the clinical and the Nursing Program.34 No mention of “unsafe




29
   Dampeer-Moore Aff. ¶ 8.
30
   Dampeer-Moore Aff. ¶ 9 (emphasis in original). Ms. Jenkins denies hearing this
discussion, Jenkins Dep. 44, but has not provided evidence to challenge Dr. Dampeer-
Moore’s statement.
31
   Defs.’ Answering Br. Ex. D at 51.
32
   Defs.’ Answering Br. Ex. D at 53.
33
   Defs.’ Answering Br. Ex. D at 38-39.
34
   Defs.’ Answering Br. Ex. D at 51-52.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 8


nursing practice” appears in any charging letters or written communication among

Ms. Jenkins and the DSU faculty and administrators.35

      By the time she received the October 28 letter upholding her dismissal from

the Nursing Program, Ms. Jenkins had already withdrawn from DSU.36                She

applied to a number of other nursing schools and enrolled in Trinitas Nursing

School.37 She expects to graduate in December 2015 or May 2016.38

                                        ***

      Ms. Jenkins asks for reinstatement in the Nursing Program, eradication of

judicial affairs records relating to the alcohol consumption incident, reinstatement

of all scholarships, a class schedule permitting graduation by May 2015,

enrollment in classes taught by other professors, placement in university housing,

cancellation of the outstanding financial aid balance arising from her withdrawal,


35
   The Defendants’ Answering Brief refers to Dean Horton’s deposition and emphasizes
that Dean Horton weighed Ms. Jenkins’ alcohol consumption and subsequent actions in
driving to and participating in clinical when deciding that Ms. Jenkins’ conduct was
“beneath the standard called for in department policy.” Defs.’ Answering Br. 16. While
Dean Horton’s deposition statements may accurately reflect Defendants’ decision-making
process, the record lacks explicit discussion of this reasoning until her July 7, 2014
deposition.
36
   Pl.’s Opening Br. App. 5; Jenkins Dep. 123.
37
   Jenkins Dep. 124-25.
38
   Jenkins Dep. 127.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 9


an order of no retaliation, lost wages, attorneys fees, reimbursement for tuition paid

to another institution, compensatory damages, and punitive damages.39

      The threshold issue before the Court is whether Ms. Jenkins was dismissed

on student discipline grounds or for academic reasons.40 This determination is

important because there is less process due and greater judicial deference

warranted for academic dismissals. Once the type of dismissal is determined, the

Court must decide whether Defendants provided sufficient notice and process to

support Ms. Jenkins’ dismissal from her clinical and the Nursing Program. If any

violation is found, the final question is that of an appropriate remedy.




39
  Pl.’s Opening Br. 31-32.
40
   Ms. Jenkins also advances substantive due process, breach of contract, and contract
interference claims. The Court does not address these claims because the procedural due
process issue is dispositive, and Ms. Jenkins has not proved harm from any breach of
contract that reinstatement does not address. First, the Student Judicial Handbook’s
disciplinary procedures do not apply to the Nursing Department’s evaluation of academic
qualification. Furthermore, although Ms. Jenkins may not have violated the disciplinary
charge of “[o]ff-campus criminal acts involving possession and/or consumption of
alcoholic beverages,” Pl.’s Opening Br. App. 1, she admitted to a violation, waived a
hearing, and accepted the consequences. Pl.’s Opening Br. App. 8. Finally, the Nursing
Program Handbook clearly states that its provisions “do not constitute a contract.” Defs.’
Answering Br. Ex. D at 5. Defendants may have made mistakes in their dismissal
process, but even if the handbooks are enforceable as contracts, Ms. Jenkins has not
proved bad faith or separate harm.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 10


                                         ***

      The Fourteenth Amendment guarantees that no state shall “deprive any

person of life, liberty, or property, without due process of law.”41 One alleging

violations of her Fourteenth Amendment right to due process must show that

“(1) there has been a deprivation of liberty or property in the constitutional sense;

and (2) the procedures used by the state to effect this deprivation were

constitutionally inadequate.”42     The Supreme Court has assumed that public

university students have a “constitutionally protectible property right in . . .

continued enrollment” in their degree programs.43          Generally, procedural due

process requires “(1) notice and (2) an opportunity to be heard.”44 Constitutional

due process differs for academic and disciplinary dismissals because “[a]cademic

evaluations of a student, in contrast to disciplinary determinations, bear little


41
   U.S. Const. amend. XIV, § 1.
42
   Studli v. Children & Youth & Families Cent. Reg’l Office, 346 Fed. Appx. 804, 813
(3d Cir. 2009) (quoting Callahan v. Lancaster–Lebanon Intermediate Unit 13, 880
F. Supp. 319, 332 (E.D.Pa.1994)).
43
   Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 223 (1985). There is a mootness
concern here because Ms. Jenkins withdrew from DSU before receiving Dean Horton’s
confirmation that her dismissal would be upheld. The Court will not address the issue as
the parties have not focused on it.
44
   Marsh v. Del. State Univ., 2006 WL 141680, at *3 (D. Del. Jan. 19, 2006) (citing Goss
v. Lopez, 419 U.S. 565, 575 (1975)).
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 11


resemblance to the judicial and administrative fact-finding proceedings to which

we have traditionally attached a full-hearing requirement.”45 Furthermore, in the

medical program context, courts have held that schools can base an academic

dismissal not only on pure academic merit but also on factors indicating that a

student is not suited for the profession.46

      Courts afford schools “great respect” and “may not override” academic

decisions by faculty “unless it is such a substantial departure from accepted

academic norms as to demonstrate that the person or committee responsible did not

actually exercise professional judgment.”47 Nonetheless, when a student is

dismissed for academic reasons, the student must be “fully informed . . . of the

faculty’s dissatisfaction,” and “the ultimate decision to dismiss” must be “careful

and deliberate.”48




45
   Bd. of the Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 89 (1978).
46
   See, e.g., Yoder v. Univ. of Louisville, 526 Fed. Appx. 537, 550 (6th Cir. May 15,
2013); Fenje v. Feld, 398 F.3d 620, 624 (7th Cir. 2005).
47
   Ewing, 747 U.S. at 225.
48
   Horowitz, 435 U.S. at 85.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 12


A. Was Ms. Jenkins Dismissed from the Nursing Program for Academic Reasons?

      Student dismissals generally fall into two categories: disciplinary and

academic.     The two categories may overlap.           The documents informing

Ms. Jenkins of the Nursing Department’s concerns identified two matters. The

first was an allegation of intoxication. It reads as an allegation of bad conduct and,

thus, implicates discipline, but intoxication in certain circumstances could reflect

badly upon a student’s qualification to be a health care professional. Of course, in

Ms. Jenkins’ case, the allegation of intoxication is without factual support. The

second issue went to the use of a “substance” during the clinical course. When

read in light of Dr. Dampeer-Moore’s orientation guidance regarding the need to

refrain from alcohol consumption before and during a clinical course, the academic

concerns become more obvious.

      In addition, the charging document separately advised Ms. Jenkins that the

matter was being referred to the Student Judiciary Board. This may suggest that

the nursing faculty deferred to the student disciplinary process for the disciplinary

aspect of Ms. Jenkins’ conduct and thus was, for its own purposes, concerned

about the academic aspects and implications of her conduct. This could be so even
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 13


though the text of the “charges” can readily be read as describing conduct worthy

of discipline.

      Defendants argue that the nursing faculty members dismissed Ms. Jenkins

from the clinical course and the Nursing Program after exercising their academic

judgment that Ms. Jenkins’ consumption of part of a margarita constituted unsafe

nursing practice.49    They invoke Board of the Curators of the University of

Missouri v. Horowitz, in which the Supreme Court noted that “[p]ersonal hygiene

and timeliness may be as important factors in a school’s determination of whether

a student will make a good medical doctor as the student’s ability to take a case

history or diagnose an illness.”50 Courts have relied on this footnote for the

proposition that academic dismissals from medical school may be based upon

factors other than grades and test scores.51

      The actions at issue include drinking half a margarita, driving classmates

back to clinical, and participating in clinical. There is no evidence that Ms. Jenkins

was intoxicated or violated any laws. The key reason why Ms. Jenkins’ actions

49
   Defs.’ Answering Br. 23-24.
50
   Horowitz, 435 U.S. at 91 n.6.
51
   See, e.g., Fenje, 398 F.3d at 624; Ku v. State of Tennessee, 322 F.3d 431, 436 (6th Cir.
2003).
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 14


received scrutiny is that she was a nursing student offering care to members of the

community on October 10, 2013. Given the faculty’s express concern about any

alcohol use, mentioned in the Nursing Program Handbook and the fall 2013

student orientation, and the deference owed to university faculty, Ms. Jenkins’

dismissal was based on the faculty’s judgment about her qualification to be a

nurse.     Thus, the Court finds that the Defendants dismissed Ms. Jenkins for

academic reasons.

B. Was Ms. Jenkins Fully Informed of the Faculty’s Dissatisfaction?

         Proceeding under the academic dismissal standard for due process,

Defendants argue that Ms. Jenkins was fully informed because “orientation, class

discussions, the Nursing Handbook, and course syllabi” put her on notice that she

could not drink while on break from clinical.52 Furthermore, Dr. Dampeer-Moore

and Dr. Sando discussed with Ms. Jenkins the incident and their serious concern

promptly after learning of her actions.53 Ms. Jenkins contends that she did not

receive notice of her alleged unsafe nursing practice and that the policies specified



52
     Defs.’ Answering Br. 25.
53
     Dampeer-Moore Aff. ¶¶ 5-6.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 15


in her dismissal letter did not support her dismissal from the Nursing Program.54

Due process for an academic dismissal requires that the plaintiff be fully informed

of the faculty’s dissatisfaction.55 While some authority suggests that a student is

“only entitled to notice on the grounds for the termination decision and an

opportunity to respond” after the offense occurs,56 other courts have required at

least some prior notice that academic performance is inadequate.57

      Although the record is far from clear, the Court accepts that the dismissal

letter and meetings with faculty and administrators gave Ms. Jenkins notice that

Defendants disapproved of her drinking on October 10, 2013.             Dr. Dampeer-

Moore’s orientation warning about alcohol and the Nursing Program Handbook

also can be read to put students on notice that any alcohol use during, or in

preparation for, clinical is grounds for dismissal from a clinical course.

54
   Pl.’s Reply Br. 2.
55
   Horowitz, 435 U.S. at 85.
56
   Fenje, 398 F.3d at 624.
57
   See, e.g., Nickerson v. Univ. of Alaska Anchorage, 975 P.2d 46, 53 (Alaska 1999) (“If
the University’s interests are truly academic rather than disciplinary in nature, its
emphasis should be on correcting behavior through faculty suggestion, coercion, and
forewarning rather than punishing behavior after the fact.”). One court found a material
issue of fact regarding whether a plaintiff was “fully informed” where an academic
review board did not send a letter it had “resolved to send . . . indicating their
dissatisfaction with her progress and outlining the consequences.” Zwick v. Regents of
the Univ. of Mich., 2008 WL 1902031, at *6 (E.D. Mich. Apr. 28, 2008).
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 16


Admittedly, due process for student dismissals does not require the same level of

precision in charging for a criminal matter.58 Yet this Court is not able to find that

a formal dismissal letter pointing to violations other than unsafe nursing practice, a

syllabus referring to dismissal for illegal drug use, and a handbook stating that a

student “may be dismissed from or not permitted to attend a clinical practice

setting” for substance use59 provide sufficient notice for Ms. Jenkins’ dismissal

from DSU’s Nursing Program upon evidence that she had half a drink during a

break from clinical. Additionally, there is no written record suggesting that Ms.

Jenkins knew prior to litigation that her actions demonstrated to the faculty that she

was unfit for the nursing profession. The Court therefore finds that Ms. Jenkins

was not fully informed of the charges against her or the severity of the

consequences and, therefore, she was not validly removed from the Nursing

Program. Whether, given full information, Ms. Jenkins’ actions would have been

sufficient to exclude her from the Nursing Program is a question the Court does not

reach.



58
     See, e.g., Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir. 1987).
59
      Defs.’ Answering Br. Ex. D at 51-53.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 17


C. Was the Faculty’s Decision Careful and Deliberate?

      Next, Defendants argue that the decision to dismiss Ms. Jenkins was careful

and deliberate because of the meetings and correspondence that occurred among

several faculty members, administrators, Ms. Jenkins, and her parents.60              In

Horowitz, the decision was careful and deliberate because “‘the school went

beyond [constitutionally required] procedural due process by affording

[respondent] the opportunity to be examined by seven independent physicians in

order to be absolutely certain that their grading of the [respondent] in her medical

skills was correct.’”61 Horowitz does not require that same level of care, but

persuasive authority suggests that the faculty must be objectively reasonable in

complying with this second prong of the academic dismissal test.62 Careful and

deliberate action can occur through an opportunity to participate in an appeal or

post-termination hearing, though one is not required.63




60
   Defs.’ Answering Br. 25-26.
61
   Horowitz, 435 U.S. at 85 (alteration in original) (quoting Horowitz v. Curators of the
Univ. of Mo., 447 F. Supp. 1102, 1113 (W.D. Mo. 1975)).
62
   Yoder, 526 Fed. Appx. at 550-51.
63
   Id. at 551.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 18


      The meeting in which Dr. Dampeer-Moore and Dr. Sando asked Ms. Jenkins

about the incident and the meeting in which Dean Horton agreed to reconsider

Ms. Jenkins’ dismissal were in effect hearings at which Ms. Jenkins offered her

side of the events in question. There is no evidence that the faculty members were

biased or rash in reaching their decision.     Ms. Jenkins may not have had an

opportunity to explain why her conduct did not demonstrate unfitness for the

profession, but the Court does not address this issue because the academic

dismissal standard already fails on the full information prong.

D. Was Ms. Jenkins Duly Excluded from the Clinical Course?

      In contrast to dismissal from the Nursing Program, dismissal from the

clinical was warranted by Ms. Jenkins’ use of a “substance” in contravention of the

Nursing Program Handbook, as elaborated upon during orientation.            As to

dismissal from the clinical course, she had sufficient notice.      Perhaps some

ambiguity can be found in the term “substance,” and there may be a linguistic

argument that alcohol is distinguished from other drugs, but a fair reading of the

record demonstrates that alcohol is among the substances that must be avoided
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 19


during or before a clinical.64 Ms. Jenkins drank part of a margarita while on break

and not on campus (or at the facility where the clinical took place), but her short

absence before returning to the clinical did not permit consumption of alcohol.

That there was no noticeable impairment is not the standard; DSU had made it

clear to its nursing students that consumption of alcohol and providing nursing

services are incompatible. Ms. Jenkins was on notice of this requirement; she

received fair notice of the faculty’s concerns and of how her conduct violated the

applicable standards; she had a fair opportunity to review the matter with the Dean

and other faculty members; and there is no material dispute about her conduct at

Cheddar’s. Thus, exclusion from the clinical for the duration of the semester was

both substantively and procedurally justified.65

E. To What Relief is Ms. Jenkins Entitled?

      In conclusion, the Court determines that dismissal of Ms. Jenkins from the

Nursing Program was not justified, and Ms. Jenkins may not be excluded from the


64
   The Nursing Program Handbook states that “[s]tudents suspected of substance use will
be required to take a drug or alcohol test.” Defs.’ Answering Br. Ex. D at 39. This text
supports the conclusion that alcohol may be considered a “substance” for purposes of
assessing both the conduct of nursing students and their fitness to serve as nurses.
65
   No contract that would undercut this conclusion has been cited.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 20


Nursing Program based on the letters of October 16 and 28, 2013.66 Preventing

DSU from excluding Ms. Jenkins for the Nursing Program as a result of the

academic process is an appropriate remedy for the procedural difficulties

associated with DSU’s removal efforts.67 On the other hand, Ms. Jenkins has not

demonstrated any material substantive or procedural shortcoming with respect to

her dismissal from the clinical course.

      In addition, Ms. Jenkins has not proved damages (including any tuition

reimbursement and lost wages) or any reason to exclude the faculty members

involved with the academic review process from serving as instructors of her

classes.68 Similarly, scholarships may not be denied to her based on her dismissal

from the Nursing Program, but the Court does not have a sufficient record of

continued entitlement to the scholarships otherwise to order their resumption. The

rights to university housing, expungement of judicial affairs records, or any



66
   The Court does not ignore the judicial deference given to the academic decisions of
faculty. The DSU Nursing Program faculty serves an important role in selecting the men
and women qualified to serve the public as nurses, and this opinion should not be read to
interfere with its professional judgment regarding student qualification.
67
   See, e.g., Goss v. Lopez, 419 U.S. 565, 584 (1975).
68
   No evidence of bias or other improper motive on the part of the nursing faculty has
been shown. Thus, ordering no retaliation is not necessary.
Jenkins v. Delaware State University
C.A. No. 9683-VCN
August 22, 2014
Page 21


particular course schedule also were not established. Finally, the question of

entitlement to attorneys’ fees has not been adequately presented as of this time.69

      IT IS SO ORDERED.

                                       Very truly yours,

                                       /s/ John W. Noble

JWN/cap
cc: Register in Chancery-K




69
   Defendants raised a number of affirmative defenses. Answer ¶¶ 14-15. To the extent
that the affirmative defenses were not briefed, the Court treats them as abandoned. It
bears mention that the complaint does not fail for failure to state a claim. The Court
awards only injunctive relief against DSU, rendering inapplicable the affirmative
defenses of qualified and absolute immunity and failure to mitigate. Nor does the
Eleventh Amendment bar this claim. Laches does not apply because the claim was filed
timely, albeit in the wrong court, and Defendants did not suffer undue prejudice.
