United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30588

____________

Andrew Babinski, 

Plaintiff—Appellee,

versus

Kristin Sosnowsky, in her personal and official capacities as Chair of the 

School of Theatre of Louisiana State University; Shannon Walsh; John 

Fletcher; Alan Sikes, 

Defendants—Appellants.

______________________________

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:20-CV-426

______________________________

Before Richman, Chief Judge, and Stewart and Dennis, Circuit 

Judges.

Carl E. Stewart, Circuit Judge:

Kristin Sosnowsky, Shannon Walsh, John Fletcher, and Alan Sikes 

(collectively “the Professors”) appeal the district court’s denial of qualified 

immunity after Andrew Babinski alleged that they violated his Fourteenth 

Amendment right to due process by conspiring to prevent his continued 

enrollment in Louisiana State University’s (“LSU”) theatre program. 

Because the Professors’ conduct does not violate clearly established law, we 

United States Court of Appeals

Fifth Circuit

FILED

August 21, 2023

Lyle W. Cayce

Clerk

Case: 22-30588 Document: 00516865070 Page: 1 Date Filed: 08/21/2023
No. 22-30588

2

REVERSE the district court’s determination that they were not entitled to 

qualified immunity and DISMISS Babinski’s claims.

I. Background

A. Babinski’s Time at LSU

Babinski enrolled in LSU’s theatre doctoral program in 2017, where 

he excelled in his coursework. His academic accomplishments garnered him 

favor within the program, and he was invited to teach undergraduate students 

and serve as a teaching assistant to Professor Fletcher. But his experience 

took a turn for the worse in the Spring 2019 term when he enrolled in 

Professor Walsh’s THTR 7923 course, “Gender, Sexuality, and 

Performance.” According to Babinski, he thought he signed up for a semester 

of critical discussions on gender and sexuality in performance but was 

disappointed to find out that the class was largely skewed to Walsh’s 

politically-progressive opinions. 

Throughout the semester, Babinski alleges that he suffered hostility 

and mistreatment from his classmates and Walsh in THTR 7923. He states 

that his classmates regularly made fun of his opinions and were dismissive of 

his views because they often differed from his peers’ assessments of the same 

issues. He further claims that his mistreatment in the course only worsened 

when he approached Walsh for help. He remained in the class despite his

perceived mistreatment because the course was necessary to progress in the

program.

Walsh required each student to write a term paper relevant to the 

subject matter of the course to receive a passing grade in her class. Babinski 

wrote his paper in a performative fashion, a writing technique he learned at 

Case: 22-30588 Document: 00516865070 Page: 2 Date Filed: 08/21/2023
No. 22-30588

3

LSU.

1 His paper criticized the Professors, the LSU theatre program more 

generally, and his classmates in THTR 7923. Walsh was not amused. In fact, 

she assigned him a failing grade for the course and immediately forwarded his

paper to Professor Sosnowsky, the Chair of LSU’s School of Theatre, for 

additional review. 

Sosnowsky read Babinski’s paper and was so troubled by its contents

that she submitted it to the LSU Police Department (“LSU Police”) and the 

LSU Office of Student Advocacy and Accountability (“SAA”). The LSU 

Police found no actionable security issues or threats in Babinski’s paper. SAA 

came to the same conclusion and refused the Professors’ request for a “no 

contact directive” issued against him. Having exhausted all administrative 

avenues to no avail, Babinski alleges that the Professors took matters into 

their own hands and conspired to prevent him from continuing in the theatre

program.

Babinski avers that the Professors sabotaged his efforts to appeal his 

failing grade in THTR 7923. Specifically, he alleges that they intentionally 

refused to follow LSU’s regulations for student grade appeals. For example, 

the university required the Professors to have an initial discussion with 

Babinski and find an amenable solution—he states that this never occurred 

because they refused to meet or even correspond with him. Additionally, he 

asserts that, under LSU’s grade-appeal regulations, he was entitled to “a 

meeting with the department chair . . . and [relevant] professor within 14 

days” of his appeal. Babinski states that this meeting never occurred either 

_____________________

1 Babinski explains that “performative writing” is “a purposefully exaggerated 

style whereby the writer is performing a concept or idea through language, manner and 

form, in addition to its content.” While Babinski has not produced the paper in these 

proceedings, he has conceded that it contained “strong language, expletives, and harsh 

criticisms of various faculty members and peers[.]” He also included a disclaimer that his 

paper was “performative and exaggerated” when turning it in to Walsh.

Case: 22-30588 Document: 00516865070 Page: 3 Date Filed: 08/21/2023
No. 22-30588

4

and that Sosnowsky “instead solicited a single e-mailed statement from [him] 

and [Walsh], from which she e-mailed them her ruling.” He maintains that 

his appeal was only denied due to the Professors’ unfiltered bias and efforts 

against him.

Babinski states that his failed appeal process was only the beginning of 

his problems. Losing his appeal meant keeping his failing grade, which placed 

him on academic probation, and forfeited his graduate-assistantship stipend. 

He claims that the Professors routinely made direct petitions to the graduate 

school to obtain a waiver for continued funding if a student lost funding due 

to an academic misstep. But that they took no such measures for him as part 

of their scheme to force his withdrawal from the program.

Babinski also claims that the Professors held a secret disciplinary

meeting after his grade appeal but before he returned for the Fall 2019 

semester. At this meeting, which he was allegedly prohibited from attending, 

he avers that the Professors determined that they would do whatever was

necessary to prohibit him from continuing in the theatre program.2 This 

included the Professors’ refusals to: (1) teach him in any additional courses, 

especially required courses like THTR 7923; (2) convene a dissertation panel 

for him; and (3) administer his general examinations. He states that each of

these actions were independently sufficient to ensure that he was unable to 

continue in or complete the theatre program.

The Professors’ alleged campaign against Babinski culminated in the 

Dean advising him that there was no way for him to progress in the Ph.D. 

program because none of the Professors wanted to teach him or serve on a 

dissertation committee for him. Babinski states that the Dean explained to 

_____________________

2 Babinski explains that he was only permitted to provide a statement to be read 

and summarized by one of the Professors at the meeting.

Case: 22-30588 Document: 00516865070 Page: 4 Date Filed: 08/21/2023
No. 22-30588

5

him that the Professors expected his withdrawal from the theatre program as 

soon as possible.

Babinski alleges, however, that LSU’s regulations provided him with 

an alternative route to convene a dissertation committee that did not include 

any of the Professors. He claims that the Dean and the Professors 

intentionally withheld this information from him to ensure his departure 

from the program. In support, he highlights that the Professors permitted a 

similar arrangement for a different student in the same program as him. 

Additionally, he asserts that LSU’s regulations permitted him to obtain 

credit for his remaining required course, THTR 7923, through independent 

study. He states that this is another option that the Professors knew was 

available yet refused to inform him of in an ongoing effort to mislead him into 

believing that he had no options to continue in the theatre program. 

Babinski took a full courseload in the Fall 2019 term, consisting of one

unrequired theatre course and three classes that he needed for his minor 

concentration. During this semester, he also claims to have made multiple 

attempts at remedying his issues with the Professors. He states that these 

efforts were all fruitless as they refused to change their stance on his 

progression in the theatre program. He ultimately cut his losses and 

withdrew, instead pursuing and obtaining a second master’s degree in the 

philosophy department. He sued the Professors in federal court.

B. District Court Proceedings

At the district court, Babinski advanced numerous constitutional 

claims against the Professors, each deriving from his assertion that they

violated his right to procedural due process by conspiring and accomplishing 

a de facto expulsion. The Professors moved to dismiss his claims on qualified 

immunity grounds. The district court partially held in their favor, granting 

them qualified immunity on all of Babinski’s claims except his: (1) propertyCase: 22-30588 Document: 00516865070 Page: 5 Date Filed: 08/21/2023
No. 22-30588

6

interest procedural due process claim and (2) liberty-interest procedural due 

process claim against Sosnowsky. 

On Babinski’s property-interest due process claim, the district court 

reasoned that none of the Professors were entitled to qualified immunity 

because he sufficiently alleged that they effected a de facto expulsion without 

affording him a meaningful opportunity to state his case for remaining in the 

program. It relied on his argument that the Professors willfully circumvented 

LSU’s policies to deprive him of any process. Furthermore, citing Goss v. 

Lopez, 419 U.S. 565 (1975) and Plummer v. Univ. of Hous., 860 F.3d 767, 773 

(5th Cir. 2017), as revised (June 26, 2017), it held that he cited caselaw clearly 

establishing that the Professors’ conduct violated his due process rights as an 

LSU student. 

Regarding Babinski’s substantive due process claim against 

Sosnowsky, the district court proceeded under the stigma-plus doctrine.3 It 

held in his favor because he alleged that Sosnowsky made false claims about 

him to harm his reputation and withheld mitigating information from LSU 

Police, SAA, and other university representatives. It stated that Sosnowsky’s 

actions violated Babinski’s liberty interest in his reputation, good name, and 

integrity. 

In sum, the district court concluded that the Professors “knew or 

should have known that it would be unconstitutional for them to force 

Babinski out of the Program without sufficient process, so qualified immunity 

_____________________

3 The stigma-plus doctrine recognizes the liberty interest that an individual has in 

his good name and reputation. To make out a stigma-plus claim, a plaintiff must 

demonstrate that: (1) he has suffered a stigma from some government action; plus (2) he

experienced the extinguishment of a right of status previously recognized by state law. San 

Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991).

Case: 22-30588 Document: 00516865070 Page: 6 Date Filed: 08/21/2023
No. 22-30588

7

is inappropriate as to the procedural due process claims.” The Professors 

timely appealed.

II. Standard of Review

We review a district court’s denial of a motion to dismiss asserting 

qualified immunity de novo, accepting all well-pleaded facts as true and 

viewing them in the light most favorable to the plaintiff. See Brown v. Miller, 

519 F.3d 231, 236 (5th Cir. 2008). A plaintiff attempting to overcome 

qualified immunity at the Rule 12(b)(6) stage must plead facts that allow this 

court to reasonably infer that the defendant is liable for the harm alleged. See 

Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020).

III. Discussion

“To be entitled to the procedural protections of the Fourteenth 

Amendment,” Babinski must show that he was “deprived [] of either a 

‘liberty’ or a ‘property’ interest.” Bd. of Curators of Univ. of Mo. v. Horowitz, 

435 U.S. 78, 82 (1978). If there is a liberty or property interest at stake and 

due process applies, “the question remains what process is due.” Morrissey 

v. Brewer, 408 U.S. 471, 481 (1972).

As an initial matter, we note that, although the district court 

determined that there was a liberty and property interest at stake, the 

Professors do not challenge this holding. Accordingly, the issue is forfeited 

on appeal. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021) 

(“A party forfeits an argument . . . by failing to adequately brief the argument 

on appeal.”).

The Professors do challenge the district court’s determination that 

Babinski received inadequate process. They argue that the district court: (1)

incorrectly held that they violated Babinski’s due process rights; and (2)

erroneously relied on the Supreme Court’s decision in Goss and this court’s 

Case: 22-30588 Document: 00516865070 Page: 7 Date Filed: 08/21/2023
No. 22-30588

8

decision in Plummer to hold that they were on notice that their alleged 

campaign against Babinski’s continued enrollment in LSU’s theatre program

violated his constitutional right to due process. See 419 U.S. at 465; 860 F.3d 

at 767. Specifically, they contend that the district court ignored that Babinski 

received the only process he asked for and that it analyzed the clearly 

established prong of the qualified immunity analysis at too high a level of 

generality. On the latter point, they maintain that Goss and Plummer are too 

dissimilar from the instant case to have provided the Professors sufficient

notice of their allegedly unconstitutional behavior. We agree with the 

Professors’ latter argument and reverse in their favor.

“Qualified immunity operates to ensure that before they are subjected 

to suit, [public officials] are on notice their conduct is unlawful.” Hope v. 

Pelzer, 536 U.S. 730, 739 (2002) (internal quotation and citation omitted). 

“When a defendant invokes qualified immunity, the burden is on the plaintiff 

to demonstrate the inapplicability of the defense.” Ramirez v. Guadarrama, 

3 F.4th 129, 133 (5th Cir. 2021) (quotation and citation omitted). This 

demonstration requires a plaintiff to allege both “(1) the violation of a federal 

constitutional or statutory right; and (2) that the right was clearly established 

at the time.” Id. (citation omitted). These inquiries may be addressed in 

“whatever order [this court] deems most expeditious.” Id. (citing Pearson v. 

Callahan, 555 U.S. 223, 236 (2009)). 

“A clearly established right is one that is sufficiently clear that every 

reasonable official would have understood that what he is doing violates that 

right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotations and 

citation omitted). The Supreme Court has cautioned appellate courts on 

“defin[ing] clearly established law at too high a level of generality.” City of 

Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021). “Although we do not require a 

case directly on point . . . there must be adequate authority at a sufficiently 

high level of specificity to put a reasonable official on notice that his conduct 

Case: 22-30588 Document: 00516865070 Page: 8 Date Filed: 08/21/2023
No. 22-30588

9

is definitively unlawful.” Walsh v. Hodge, 975 F.3d 475, 485–86 (5th Cir. 

2020) (internal quotations and citation omitted) (emphasis in original); see 

also Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011) (“We do not require a case 

directly on point, but existing precedent must have placed the statutory or 

constitutional question beyond debate.”).

A. Constitutional Violation

To defeat the Professors’ qualified immunity defense, Babinski had to

assert a “violation of a federal constitutional or statutory right[.]” Ramirez, 

3 F.4th at 133. At the district court, he argued that the Professors violated his 

constitutional right to procedural due process by failing to offer him notice 

and an opportunity to be heard before de facto expelling him from the Ph.D. 

program.4 The district court embraced his de-facto-expulsion theory, 

agreeing that the Professors’ conduct left him no choice but to withdraw from 

his desired program and settle for a completely different degree.

Babinski’s de-facto-expulsion theory is particularly important here 

because the characterization of his allegations is key to identifying the level 

of process that he was due. The Supreme Court has drawn a fine line 

differentiating the process required for students facing discipline actions, as 

opposed to academic actions which require less procedurally. Ekmark v. 

Matthews, 524 F. App’x 62, 64 (5th Cir. 2013) (per curiam) (unpublished) 

(quoting Horowitz, 435 U.S. at 86). If a student faces certain disciplinary 

consequences, due process requires an “oral or written notice of the charges 

against him and, if he denies them, an explanation of the evidence . . . and an 

opportunity to present his side of the story.” Goss, 419 U.S. at 581. Applying 

_____________________

4 Other courts have recognized a de facto expulsion as a penalty subject to review 

under the due process standard. See e.g., G.C. v. Owensboro Pub. Sch., 711 F.3d 623, 631 (6th 

Cir. 2013) (“[T]he concept of de facto expulsions is not new to this court.”) (citing cases). 

Case: 22-30588 Document: 00516865070 Page: 9 Date Filed: 08/21/2023
No. 22-30588

10

this standard, the Supreme Court in Goss determined that a school’s 

suspension of multiple disruptive students without notice and a hearing was 

a violation of the students’ due process rights. Id. at 579. 

In Horowitz, the Court distinguished Goss, holding that “there are 

distinct differences between decisions to suspend or dismiss a student for 

disciplinary purposes and similar actions taken for academic reasons which 

may call for hearings in connection with the former but not the latter.” 435 

U.S. at 87, 88–89. The student in Horowitz sought to challenge her dismissal 

from medical school after several academic deficiencies, though she was 

informed of her impending risk of dismissal and the school’s dissatisfaction 

with her performance. Id. at 80–82. The Court rejected her claim reasoning

that an academic decision is “by its nature more subjective and evaluative 

than the typical factual questions presented in the average disciplinary 

decision.” Id. at 89–90. Leaving the contours undefined, the Horowitz Court

determined that academic deficiencies require “far less stringent procedural 

requirements.” Id. at 86; see also Davis v. Mann, 882 F.2d 967, 975 (5th Cir. 

1989) (explaining that a student subject to an academic dismissal is entitled 

to “some meaningful notice and an opportunity to respond”).

Traditionally, a student’s procedural due process claim falls within 

one of two arenas—academic deficiencies or disciplinary misconduct. See 

Horowitz, 435 U.S. at 87. The unique factual scenario here does not fit 

squarely into either category. In his complaint, Babinski alleges that his de 

facto expulsion is more tantamount to a disciplinary decision, and the district 

court construed his claims as such. To be sure, the chain of events certainly 

begins with an academic exercise, including his completion of a paper, 

obtaining a grade, and disputing the grade. His federal lawsuit, however, does 

not challenge or focus on the grade he received, nor does he allege that it was 

the crux of his de facto expulsion. He instead pleads that his de facto 

expulsion derives from the views that he expressed in his paper. Specifically, 

Case: 22-30588 Document: 00516865070 Page: 10 Date Filed: 08/21/2023
No. 22-30588

11

he takes issue with the Professors’ conduct in response to his paper, such as 

their actions after issuing his failing grade that effectively froze him out of his 

chosen discipline. These actions include the secret meeting at which they

refused to teach him in the theatre program and their individual and 

collective efforts to intentionally withhold information from him to ensure 

his departure from the program.

Given these facts and accepting Babinski’s de facto expulsion 

allegations as true, as we must at this stage, we assume, without deciding,

that Babinski has pleaded a violation of the Fourteenth Amendment due 

process protections. See Brown, 519 F.3d at 236 (explaining that we view wellpleaded facts “in the light most favorable to the plaintiff”). But our inquiry 

does not end here. To defeat qualified immunity, Babinski must satisfy the 

clearly established prong of the analysis. See Mullenix, 577 U.S. at 11 

(requiring a plaintiff to also establish that the injury to his constitutional right

was “sufficiently clear that every reasonable official would have understood 

that what he [was] doing violate[d] that right”). As we will explain, he fails 

to satisfy his burden by misconstruing caselaw at too high a level of generality. 

See Bond, 142 S. Ct. at 11.

B. Clearly Established Law

As we previously observed, the district court reached this part of the 

qualified immunity analysis after holding that the Professors violated 

Babinski’s constitutional rights by de facto expelling him from the LSU 

theatre program. It then held that the Supreme Court’s decision in Goss and 

this court’s in Plummer clearly established the Professors’ conduct as 

violative of his Fourteenth Amendment right to due process. Assuming 

arguendo that Babinski’s de facto expulsion from a university academic 

program was a constitutional violation, we disagree with the district court’s 

analysis of the governing caselaw under the clearly established prong. 

Case: 22-30588 Document: 00516865070 Page: 11 Date Filed: 08/21/2023
No. 22-30588

12

In Goss, the Supreme Court considered a district court’s 

determination that an Ohio law allowing the suspension of students without 

a hearing in a reasonable timeframe violated the students’ procedural due 

process rights. See 419 U.S. at 565–67. While the Court acknowledged the 

importance of allowing public schools deference in running the day-to-day 

affairs, it still held that: 

Students facing temporary suspension have interests 

qualifying for protection of the Due Process Clause, 

and due process requires, in connection with a 

suspension of 10 days or less, that the student be given 

oral or written notice of the charges against him and, if 

he denies them, an explanation of the evidence the 

authorities have and an opportunity to present his side 

of the story. The Clause requires at least these 

rudimentary precautions against unfair or mistaken 

findings of misconduct and arbitrary exclusion from 

school.

Id. at 581. Ultimately, the Court cabined its decision to suspensions not 

exceeding ten days but explained that “[l]onger suspensions or expulsions 

for the remainder of the school term, or permanently, may require more 

formal procedures.” Id. Importantly, it never considered whether the publicschool official’s actions tainted or undermined any process that the students 

received. Instead, its primary consideration was whether the students were 

entitled to any process at all, and if so, to what degree.

In Plummer, two expelled students brought procedural due process 

and Title IX claims against the University of Houston (“UH”), alleging that 

the disciplinary proceedings that they were subjected to were constitutionally 

deficient. See 860 F.3d at 767. The district court granted summary judgment 

to UH and a panel of this court affirmed. We first explained that our role in 

university-student disputes is not to “second-guess[]” the university’s 

Case: 22-30588 Document: 00516865070 Page: 12 Date Filed: 08/21/2023
No. 22-30588

13

disciplinary determinations. Id. at 772–73 (quoting Wood v. Strickland, 420 

U.S. 308, 326 (1975)). Rather, our duty is merely to ensure “the presence of 

fundamentally fair procedures to determine whether the misconduct ha[d] 

occurred.” Id. (quoting Goss, 419 U.S. at 574). Accordingly, we noted that 

“[w]hether a state university has provided an individual student sufficient 

process is a fact-intensive inquiry and the procedures required to satisfy due 

process will necessarily vary depending on the particular circumstances of 

each case.” Id. at 777. 

While we considered the students’ allegations that the process they 

received was riddled with a UH official’s bias, we never explored any

conspiracy by UH officials against the students. See id. at 776–77 (rejecting 

Plaintiffs’ argument that a biased official’s actions prevented them from 

cross-examining a witness in their expulsion proceedings). Nor did the 

students ever allege that such a conspiracy occurred. We ultimately

concluded that the students received due process and that their 

constitutional rights remained intact. Id. Notably, that determination

effectively ended our qualified immunity inquiry. Id. Only a forced 

interpretation of Plummer would allow us to hold that it established anything 

that happened in Babinski’s pleadings.

Both Goss and Plummer solidify that students, like Babinski, have a 

Fourteenth Amendment right to some degree of procedural due process

before or shortly after university officials take certain adverse actions against 

them. See 419 U.S. at 581 (“Students facing temporary suspension have 

interests qualifying for protection of the Due Process Clause.”); 860 F.3d at 

773 (explaining that students are entitled to a “fundamentally fair” 

disciplinary process). However, neither case involved, alleged, or even 

mentioned an underlying conspiracy to block a student from enjoying that

right. Additionally, neither case dealt with the alleged tainting of the process 

that a school or university provided to a student. True, qualified immunity 

Case: 22-30588 Document: 00516865070 Page: 13 Date Filed: 08/21/2023
No. 22-30588

14

does not require precedential exactitude or a case “directly” on point. Walsh, 

975 F.3d at 485 (emphasis in original). But both of Babinski’s proffered cases 

miss the mark by failing to address conduct like the Professors’ in this case. 

Absent an appropriately analogous case of greater specificity, we cannot 

uphold the district court’s denial of qualified immunity. See Bond, 142 S. Ct. 

at 11.

Fifth Circuit precedent also forecloses Babinski’s argument that the 

mere existence of his right to due process provides fair warning to the 

Professors for all conduct that he alleges might violate that right. See Walsh, 

975 F.3d at 487. In Walsh, a professor brought a 42 U.S.C. § 1983 suit against 

the university in which he taught, alleging that it fired him without adequate 

due process for his alleged sexual harassment of a student. Id. at 478. The 

district court denied the university and its officials qualified immunity. Id. A 

panel of this court reversed, explaining that “the ‘sine qua non of the clearlyestablished inquiry is “fair warning.”’” Id. at 486 (quoting Morgan v. 

Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc)). The panel continued

that while it is “clearly established that due process for a terminated 

professor includes ‘a meaningful opportunity to be heard in his own 

defense,’” there was no caselaw speaking “directly to the procedures 

necessary to protect a professor’s interest in avoiding career-destruction 

after being accused of sexual harassment.” Id.

The same is true here. Babinski is asking us to do precisely what the 

Walsh panel refused to do: hold that his right to a meaningful opportunity to 

be heard put the Professors on notice that their conduct in this case was 

unconstitutional. Id. at 487 (“Nor can we hold, as Walsh contends, that a 

meaningful opportunity to be heard should have put Defendants on notice 

that their actions were unlawful.” (internal quotation omitted)). Babinski’s 

argument gains no more traction here than Walsh’s did there for precisely 

the same reason: he cannot point to any controlling caselaw that would have 

Case: 22-30588 Document: 00516865070 Page: 14 Date Filed: 08/21/2023
No. 22-30588

15

put the Professors on notice that his due process rights were violated in a 

similar procedural context. In other words, against the Rule 12(b)(6) 

backdrop, Babinski concedes that he was never expressly expelled from the 

university. His pleadings likewise acknowledge that, after he alleges that he 

was de facto expelled, he continued to enroll in courses and ultimately 

obtained his degree from the university. But we have no caselaw “that speaks 

directly to the procedures necessary” to protect a student who claims he was 

de facto expelled from a university, yet continued to enroll in classes and 

receive a degree from the same university after the point in time that he 

alleges he was de facto expelled. Id. at 486. As the Walsh panel explained, the 

clearly established standard requires more than that—there must be a “high 

degree of specificity” between the alleged misconduct and the caselaw 

purporting to clearly establish the violation. Id. at 487. Without it, the 

requisite “fair warning” required under the clearly established inquiry is 

absent. Id. at 486.

For these reasons, we hold that the Professors lacked adequate notice 

that their conduct was violative of Babinski’s constitutional rights and 

because they did not have this notice, they are entitled to qualified 

immunity.5 See Hope, 536 U.S. at 739.

IV. Conclusion

For the foregoing reasons, we REVERSE the district court’s denial 

of qualified immunity and DISMISS Babinski’s claims against the 

Professors.

_____________________

5 Both parties make competing arguments on whether the Professors could pursue 

their qualified immunity argument at a subsequent stage of litigation proceedings. We do 

not address those concerns due to our holding herein.

Case: 22-30588 Document: 00516865070 Page: 15 Date Filed: 08/21/2023