Campus Due Process Litigation Tracker

Averett v. Hardy, No. 3:19-cv-00116 (W.D. Ky. Mar. 3, 2020)

School type: Public
State: Kentucky
Federal Circuit: Sixth
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Cross-examination, Due process, Erroneous outcome, Exculpatory evidence, Notice, Title IX

The court denied the defendants’ motion to dismiss Plaintiff’s due process claims, but dismissed his claims for Title IX violations, defamation, and intentional infliction of emotional distress.

As an initial matter, with respect to Plaintiff’s due process claims, the court noted that only his claims against administrators in their individual capacities were not barred by Eleventh Amendment immunity. A student’s suspension or expulsion for sexual misconduct implicates both protected property and liberty interests, held the court: suspension or expulsion from a state university deprives a student of a protected property interest, while “allegations of sexual assault can ‘impugn [a student’s] reputation and integrity, thus implicating a protected liberty interest.’”

The court explained that the question of precisely how much process is due is analyzed using the factors set forth by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976):

(1) the nature of the private interest subject to official action; (2) the risk of erroneous deprivation under the current procedures used, and the value of any additional or substitute procedural safeguards; and (3) the governmental interest, including the burden any additional or substitute procedures might entail.

The court held that the private interest is significant for a student in a campus sexual misconduct case, acknowledging “‘the seriousness and the lifelong impact that expulsion can have,’ and the ‘immediate and lasting impact on a student’s life’ that follows a label of sex offender.”

Plaintiff alleged that he was deprived of adequate notice because the university’s investigator “intentionally failed to provide him with accessible critical evidence in violation of [the university’s] own policies,” and that this failure hampered his ability to cross-examine witnesses.

Plaintiff also alleged that the university’s investigator, who also served as the presiding hearing officer, was biased against him. Among other things, he alleged that she only sought out evidence that confirmed Plaintiff’s guilt, and that she “forced him to truncate his written witness statement which prevented him from fully presenting his defense.”

The court agreed that these allegations set forth a plausible due process violation, and denied the university’s motion to dismiss Plaintiff’s procedural due process claim against the investigator/hearing officer.

Turning to Plaintiff’s Title IX claim, the court held that it was most appropriately analyzed under the “erroneous outcome” theory, which requires a Plaintiff to plead

(1) ‘facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding’ and (2) a ‘particularized…causal connection between the flawed outcome and gender bias.’

The court chose to analyze the second prong first, and held that Plaintiff had not sufficiently pled any facts suggesting that the university was motivated in any way by gender bias. It therefore dismissed his Title IX claim.

The court also dismissed Plaintiff’s claims for defamation and intentional infliction of emotional distress.