Facebook Friendship May Undermine University Disciplinary Board Decision — Furey v. Temple Univ.

[Post by Venkat]

Furey v. Temple University, Civ. No. 09-2472 (E.D. Pa.) (Aug. 3, 2010)

The Eastern District of Pennsylvania recently concluded that a Facebook ‘friendship’ between a Temple University disciplinary board member and a witness may have procedurally undermined a disciplinary hearing.

Kevin Furey, a Temple University student, was involved in an exchange with an off-duty police officer while technically on school grounds. As described in the order, Furey went out partying and returned to a friend’s house where he was staying. Furey’s friend “locked himself out his bedroom, [so Furey] went to retrieve a machete [??] from his car to pry open the bedroom door.” While at his car, Furey was approached by some men who Furey believed might try to attack or mug him (one of the men, Travis Wolfe, was an off-duty police officer). Furey and the officer engaged in a physical struggle and ultimately Furey was taken down and arrested by additional officers who arrived on the scene.

Furey was charged with a violation of Temple’s code of conduct. The panel adjudicating the charge consisted of three faculty representatives and two student representatives. Malcolm Kenyatta was one of the student representatives. Kenyatta was Facebook “friend[s]” with Officer Wolfe, the officer who had the altercation with Furey. Ultimately, the panel recommended that Furey be expelled. Furey appealed his decision to a review board which found that suspension (rather than expulsion) was a more appropriate sanction. The review board also found that the Facebook friendship between Kenyatta and Officer Wolfe constituted a “procedural defect” for which additional investigation into the propriety of the hearing was warranted (the review board did not order a new hearing). The review board made its recommendation to the VP of Student Afffairs, who ultimately decided to go with expulsion.

The “Code Investigator” who was asked to look into the procedural defects by the review board asked Kenyatta about the Facebook friendship. Kenyatta responded that:

he and Wolfe were friends on Facebook, but he had over 400 friends, and [Kenyatta and Wolfe] were not “friends” in the traditional sense.

Furey filed a lawsuit asserting a variety of claims, including due process violations stemming from procedural improprieties underlying the hearing. The court agreed with Furey that procedural defects underlying the disciplinary process could constitute due process violations. Although the court did not itself comment on whether the Facebook friendship undermined the process, the court noted that the review board found that the Facebook friendship constituted a procedural defect, and the code governing the disciplinary process provided that where a procedural defect is found, the review board should recommend a new hearing that would take place in front of a new panel. Based on this and one other procedural defect, the court denied summary judgment to the university, holding that the plaintiff’s claims for procedural due process violations could go forward.

Facebook friendships between judges, witnesses, and parties should not be viewed as inherently problematic. Litigants, judges, and parties share social connections all the time. However, disclosure is key, and recently, one court found it problematic where a juror didn’t disclose a MySpace ‘friendship’ with the defendant and then gave an unconvincing explanation for it when questioned. (See West Virginia Appeals Court Grants New Trial Based in Part on Undisclosed MySpace Friendship.) On the other hand, more than one court has sneered at the the “friend” label, treating Facebook friendships as something less than real life friendships.

In Williams v. Scribd (see Professor Goldman’s post on that case here), a case involving copyright and publicity claims against Scribd, the court noted:

it’s no secret that the ‘friend’ label means less in cyberspace than it does in the neighborhood, or in the workplace, or on the schoolyard, or anywhere else that humans interact as real people.

In another case (Quigley Corp. v. Karkus) coincidentally also from the Eastern District of Pennsylvania – the court also turned up its nose at the concept of Facebook friendship:

[T]he Court assigns no significance to the Facebook “friends” reference. Facebook reportedly has more than 200 million active users, and the average user has 120 “friends” on the site. . . . Indeed, “friendships” on Facebook may be as fleeting as the flick of a delete button.

Here, there was some evidence that the panel and certain panel members displayed hostility towards the plaintiff. Plaintiff also presented evidence that Kenyatta and Officer Wolfe were part of some club. In any event, the underlying rules provided that where a procedural defect was found, the review board should have ordered a new hearing and this did not take place. [The court's views on Facebook friendship were not central to the case, but since the case mentioned Facebook, I figure I should blog about it. Thanks in advance for cutting me some slack on this!]

Related posts:

Is the Florida Bar Taking Facebook Friendship Too Seriously?