Judge: More info needed on Virginia Tech student's due process complaint

ROANOKE, Va. (WDBJ7) - A cadet at Virginia Tech went before a judge in the US District court Tuesday to ask him to require the school to lift his suspension.

The judge took the request under advisement.

Darrien Brown, a senior cadet, is one of several students disciplined by Virginia Tech for their involvement in an alleged "blood pinning" or hazing event, one in which no students were said to have been injured.

Brown is suing Virgnia Tech, claiming his right to due process was denied. While that case works its way through the court system, Brown asked a judge Tuesday to require Virginia Tech to lift his suspension so that he doesn't break a contract he had with the Army.

This began late last year, following a student conduct hearing in which the school found Brown violated the school's policy on hazing by leading an event in which cadets took part in blood pinning.

It was part of a ceremony in which 20 sophomores voluntarily took part in calisthenics activities before having Bravo company pins placed on their shirts and tapped, which can sometimes break the skin.

Court filings claim the ceremony was conducted “just as it has been for many years.”

Brown was suspended for two semesters. He, through counsel, claims that if he can't graduate by May 2020, he will suffer "irreparable harm" by forfeiting a contract he had to the US Army to enlist this summer, which would also require him to pay back a military scholarship.

In a complaint filed in federal court, Brown and his attorney request a judge find Virginia Tech in violation of Brown's right to due process, calling his hearing at school "constitutionally flawed." Brown requests a full expungement of his record from being connected to hazing and being the subject of discipline. The suit also requests a permanent injunction, preventing Virginia Tech from continuing to enforce any sanction, making note of the incident in his record or disclosing to a third party about adverse disciplinary action. Lastly, it requests the school pay attorney fees and deliver any relief as the court sees appropriate.

The justification? Brown and his attorney, Rob Dean, believe the school, in its processing of the student discipline case, violated Brown's right to due process. Dean said in court Tuesday that Brown deserved to know who had accused him of hazing and said that Brown might not have had all the documents containing complaints he should have been privy to prior to the hearing at school.

The judge appeared confused as to why the plaintiff would make the request, being that the facts he provided to the school on the events of October 18, 2019 did not differ much from those of the witnesses. The judge wasn't sure that there was a reason to question the veracity or credibility of the unknown complainants.

Dean claimed that could have prevented Brown from refuting any of the claims in his hearing. He pointed specifically to a paragraph in the investigator's documentation which included mention of a complaint in which the cadets were told the October 18, 2019 event would be held in secrecy. Dean argued that there is no other reference or document noting this particular complaint in the materials provided to Brown.

A group of five lawyers representing the University and Virginia Tech President Tim Sands sat across from Dean and Brown. In her arguments, Kristina Hartman told the judge that Brown's request to know his accuser was a "red herring."

She told the judge Brown was given all the material used by conduct officers to make their decision about his discipline. She said Brown was given the opportunity to give an opening statement, have an adviser, provide a closing statement, and appeal - all of which she said he did. But Hartman said there were other opportunities available to him, such as calling a witness, presenting evidence, questioning investigators, asking questions of the sophomores present and refusing to respond - all of which he declined to do.

Brown himself was questioned and cross-examined as well. In his examination by Dean, Brown revealed that he believed the documents provided to him before his hearing at school either failed to include or altered original statements made by the accuser(s).

Brown said he and more than 20 other junior and senior cadets cases were heard at the same time, but that not all of them were disciplined.

Dean questioned Brown about his history at the school. Brown said he had a 3.5 GPA, made the Dean's list, had never been in trouble before and had been working for years toward a career in the Army.

Dean claimed that the suspension also prevented Brown from going to another school to earn credits which he could transfer toward his degree.

Hudson McClanahan, a University lawyer, also questioned Brown. In his examination, he revealed the prior to the October 18 event, Brown was required to submit an operating order to his superior, one which ultimately was not approved by the appropriate parties prior to the event. McClanahan also revealed that the "blood pinning" and one other activity from October 18 was not included on the operating order. But Brown denied that the events were intentionally left out of the order.

In redirect, Dean asked Brown whether he was required to go above his superior to ensure the operating order was fulfilled. He said he was not.

In additional examination, McClanahan plays an audio recording of a piece of the hearing which took place at Virginia Tech. The audio reveals that Brown admitted that some students brought forth concerns about the event, concerns which he said he worked to address.

Dean then questions Brown's father, Robert Brown, a veteran of the US Army himself. In his testimony, Brown said following conversations with Corps leadership, he felt the school's leadership had made a decision about his son's discipline before the hearing even took place.

At the conclusion of the hearing, instead of making a decision on violation of due process, the judge ordered Virginia Tech to provide any and all written complaints made about the October 18 incident before November 4, complaints which Brown and Dean are concerned Brown did not get to see before his hearing at school.

The judge told Virginia Tech that is no such material existed, they were to write a statement attesting to that fact. Only after this order is fulfilled will the judge make his call, which is expected to happen early next week.

Lawyers for Virginia Tech, Rob Dean, Darrien Brown and his parents, who were present in court, all declined to comment for this story.

The Montgomery County Commonwealth's Attorneys's office told WDBJ7 Tuesday they are still actively working to determine if this investigation rises to a criminal level.

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