Campus Due Process Litigation Tracker

Doe v. University of Connecticut, No. 3:20-cv-00092 (D. Conn. Jan. 23, 2020)

School type: Public
State: Connecticut
Federal Circuit: Second
Decision primarily favorable to: Student
Stage of litigation: Motion for TRO/preliminary injunction
Keywords: Cross-examination, Due process, Exculpatory evidence

The court granted Plaintiff’s motion for a temporary restraining order, allowing him to re-enroll at the university.

The case stems from a sexual encounter between Plaintiff and his accuser, Jane Roe, who knew one another from their jobs as student workers at UConn’s African American Cultural Center. After connecting at an off-campus party in April 2019, the pair ended up at Jane’s dorm, where they had sex. John claims the sex was consensual; Jane claims it was not.

John told UConn’s investigator that after John and Jane left the party, they piled — with a group of other friends — into the backseat of another student’s car to go for pizza. According to John, Jane sat on his lap in the car and began to grind against him, giving him a lap dance. Jane denied this, but John obtained statements from two witnesses in the car who observed and felt Jane’s rhythmic movements and understood them to be sexual. These witness statements do not speak to whether the later sexual encounter in Jane’s dorm room was consensual, but since she denied the behavior in the car, they do speak to her credibility about the evening’s events.

This exculpatory evidence was never considered, however, because UConn’s investigator excluded the statements of both of these witnesses from his report, and the hearing officers also refused to allow them to testify at Plaintiff’s hearing.

There were other procedural irregularities as well. The investigator and hearing officers relied on the testimony of several female witnesses in reaching their finding of responsibility, but those witnesses did not appear at the hearing, so Plaintiff had no opportunity to question them in any way. He did have an opportunity to question Jane Roe through the hearing panel, but they excluded some of his questions.

Ultimately, John was suspended for two years, after which time he could reapply to UConn, but with no guarantee of readmission.

The court granted Plaintiff’s motion for a TRO, finding that Plaintiff had “shown a clear likelihood of success on his due process claim” and that he would “suffer irreparable harm if he cannot enroll in UCONN this semester.”

The judge expressed serious concern over UConn’s disciplinary process:

Because the Plaintiff and Jane Roe were the only two in the dorm room during the incident, UCONN’s finding of non-consent necessarily hinged on the credibility of both the Plaintiff and Jane Roe. Despite the importance of credibility to the factual dispute, UCONN’s disciplinary procedures hampered the Plaintiff’s ability to present a meaningful defense on this issue.

The judge was particularly troubled by UConn’s decision to exclude witnesses who “were prepared to offer testimony that would tend to undermine Jane Roe’s credibility.” He also found that UConn had impermissibly denied “Plaintiff an adequate opportunity to respond to or question Jane Roe or the other female witnesses interviewed during the investigation.” While declining to rule on whether due process in the university setting requires “traditional” cross-examination — an issue that the Second Circuit has yet to address — the judge held that the lack of any meaningful opportunity to confront the witnesses against him was likely a due process violation.

Ultimately, the judge found that

This case involves a severe sanction, a “he said/she said” dispute hinging on the credibility of Roe and the Plaintiff, and important procedural shortcomings in exploring the critical issue of credibility. Under these circumstances, the Plaintiff has shown a clear likelihood of success on the merits of his due process claim.