IN THE SUPREME COURT OF ______

NO. 14-1540 ______

YEMPABOU PALO, PETITIONER/APPELLEE

v.

IOWA BOARD OF REGENTS, RESPONDENT/APPELLANT

______

APPEAL FROM THE IOWA DISTRICT COURT IN AND FOR STORY COUNTY THE HONORABLE STEVEN J. OETH, JUDGE ______

APPELLANT’S PETITION FOR REHEARING IN THE COURT OF APPEALS ______

THOMAS J. MILLER Attorney General of Iowa

JEFFREY S. THOMPSON Solicitor General DIANE M. STAHLE Special Assistant Attorney General Hoover Building, Second Floor 1305 East Walnut Street Des Moines, Iowa 50319 PHONE: (515) 281-4670; FAX: (515) 281-7219 ELECTRONICALLY FILED JUL 16, 2015 CLERK OF SUPREME COURT E-MAIL: [email protected] E-MAIL: [email protected] ATTORNEYS FOR RESPONDENT/APPELLANT

) YEMPABOU PALO, ) ) NO. 14-1540 Petitioner/Appellee, ) ) vs. ) ) , ) APPELLANT’S PETITION ) FOR REHEARING IN Respondent/Appellant. ) THE COURT OF APPEALS )

COMES NOW the Appellant Iowa Board of Regents (the Board) and requests a rehearing pursuant to Iowa Rule of Appellate Procedure § 6.1204 and states as follows in support:

1. The Court of Appeals issued its decision on July 9, 2015. The Court concluded that the judicial review proceeding was moot and dismissed the appeal.

The Court stated that “since our decision in this controversy would ‘no longer matter’ and be ‘merely academic’, we find this issue to be moot and decline to reach the merits of this case. We also decline to find that an exception to the mootness doctrine applies in this case.”

2. In reaching the conclusion that the case was moot, the Court focused solely on enforceability of the sanctions imposed against Palo for violating the ISU student conduct code. The two sanctions addressed by the Court were a prohibition from playing on the ISU basketball team and a deferred suspension.

Because Palo was allowed to return to the basketball team by the district court and 2 because he graduated in May of 2015, the Court found that the sanctions were no longer a justiciable controversy.

The Question Whether Palo Violated The Student Conduct Code Is Not Moot.

3. The appropriateness of the sanctions imposed was not an issue on appeal.

Rather, the sole issue was whether there was substantial evidence to support the

Board’s decision that Palo violated the ISU sexual misconduct policy. That issue is not academic and it still matters. While the sanctions for violation of the student conduct code may no longer enforceable once a student graduates, that does not mean that the fact a student was found to have violated the conduct code is expunged or ceases to exist. If Palo in the future applies for further education to

ISU or another institution governed by the Iowa Board of Regents, the institutions would be bound by the District Court’s determination that he was not responsible.

4. One of the main purposes of the student disciplinary process is to hold students accountable for their actions. If a student can escape a final determination of their responsibility simply by leaving school, the integrity of the system is damaged. The disciplinary process at ISU provides for appeal rights through chapter 17A. Those rights, and a final decision on the merits, should continue to exist even though the issue of sanctions may no longer be justiciable.

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Even If The Court Concludes The Case Is Moot, The Merits Should Be Decided.

5. The Court has discretion to decide an issue, even if it is moot, based upon consideration of four factors. v. Osborn, 751 N.W.2d 396, 399

(Iowa 2008). The Court declined to find that an exception to the mootness doctrine applied but did not analyze the four factors or explain its rationale. ISU asserts that two of the relevant factors strongly favor a decision in this case: the desirability of an authoritative adjudication to guide public officials in their future conduct and the likelihood the issue will recur yet evade appellate review.

6. The authority of the Board to decide student disciplinary cases and interpret university sexual misconduct policies is an important issue. The legislature has directed the Board to “develop and implement” a written policy relating to sexual abuse. See Iowa Code § 262.9 (28). The sexual misconduct policies are also one of the means by which the Board assures compliance with

Title IX. (App. 171-172). There can be no dispute that sexual assault on college campuses across the country is an important public policy issue. The Board determined that the universities should have a policy to “[c]learly articulate prohibited conduct and include unambiguous definitions of behaviors.” Id.

Specifically, the Board determined that “[d]efinitions of prohibited conduct must provide students sufficient notice of behavioral expectations so that they may

4 conform their conduct accordingly, and clearly recognize when behavior crosses the acceptable line.” Id.

7. Because of the importance of this issue to public officials, there should be a decision on the merits.

8. The other reason to decide this case, even if it is moot, is because the issue is capable of repetition yet avoiding review. The Court’s decision not to review the case is inconsistent with prior Iowa case law involving very similar facts. In Brewbaker v. State Bd. Of Regents, 843 N.W.2d 466 (Ct. App. 2013) an

ISU student appealed a one year suspension from his graduate program. By the time the case was heard by the Court of Appeals, the suspension period had ended.

The Court noted that the ultimate issue in the case was moot, but went on to decide the merits of the controversy because it was a situation capable of repetition yet evading review. 843 N.W.2d at 475, n. 1. The same is true in this case.

9. The Court’s conclusion that this case is moot and not subject to review essentially means that students who are subject to discipline near the end of their academic terms are given a free pass. Students will have great incentive to delay their hearings and/or appeal adverse findings so they might graduate before their case is final. Or they could just drop out of school and enroll somewhere else.

Under the Court’s rationale, as long as the school no longer has a right to enforce sanctions against the student there is no longer a justiciable controversy and the

5 decision on the merits can never be finally litigated. This is the type of issue that is likely to recur but avoid review because students spend a relatively short period of time at the university and can chose to leave at any time.

Even If The Court Declines To Decide This Case On The Merits, It Must Vacate The District Court Decision.

10. In the event that the Court declines to consider the merits of the case,

ISU requests that the Court of Appeals vacate the decision of the district court.

The Court of Appeal’s decision is based upon the rationale that once Palo graduated from ISU there was no longer a justiciable issue. To the extent that this case is moot due to the graduation of Palo, the case would have been moot prior to the time the district court ruled. Palo graduated from ISU in on May 10, 2014.

(Appellee’s Final Brief, p. 4). The district court ruled on August 21, 2014. There is no basis upon which the controversy could be moot at the Court of Appeals level but not at the district court level.

11. It has been held that when a case on appeal is moot, and was also moot at the time the lower court decided the case, the proper remedy is to dismiss the appeal as moot and vacate the judgment of the district court. Yancy v. Shatzer, 337

Or. 345, 363, 97 P.3d 1161, 1171 (2004); Blechschmidt v. Shatzer, 197 Or. App.

536 (Or.Ct.App. 2005). The district court judgment should accordingly be vacated.

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CONCLUSION

ISU requests that the Court of Appeals reconsider its decision to dismiss this appeal as moot. In the alternative, ISU requests that the Court amend its decision to vacate the judgment of the district court.

Respectfully submitted,

THOMAS J. MILLER Attorney General of Iowa

/S/JEFFREY S. THOMPSON JEFFREY S. THOMPSON Solicitor General

/S/ DIANE M. STAHLE DIANE M. STAHLE Special Assistant Attorney General Hoover Building, Second Floor 1305 East Walnut Street Des Moines, Iowa 50319 PHONE: (515) 281-4670 FAX: (515) 281-7219 E-MAIL: [email protected] E-MAIL: [email protected] ATTORNEYS FOR RESPONDENT/ APPELLANT

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CERTIFICATE OF FILING AND SERVICE

I, Diane M. Stahle, Special Assistant Attorney General for the State of Iowa, hereby certify that I electronically filed this Petition for Rehearing this 16th day of

July, 2015, with the Clerk of the Iowa Supreme Court, Des Moines, Iowa, with service to be made electronically on all parties of record.

/S/ DIANE M. STAHLE DIANE M. STAHLE Special Assistant Attorney General

CERTIFICATE OF COMPLIANCE

The undersigned certifies that the Final Brief complies with the typeface requirements of Iowa R.App.P. 6.903(1)(e). This brief has been prepared in a proportionally spaced typeface and created in Microsoft Word 2010 in font Times

New Roman 14. The number of words is 1,195.

/S/ DIANE M. STAHLE DIANE M. STAHLE Special Assistant Attorney General

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