Campus Due Process Litigation Tracker

Doe v. Michigan State University, No. 1:18-cv-01430 (W.D. Mich. Sep. 1, 2020)

School type: Public
State: Michigan
Federal Circuit: Sixth
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Cross-examination, Due process, Erroneous outcome, Qualified Immunity, Selective enforcement, Single investigator, Title IX

Defendants’ motion to dismiss granted in part and denied in part.

Plaintiff’s suit against Michigan State stems from a sexual encounter he had with a female student, Jane Roe, after a fraternity party at which both students had been drinking. Roe alleges the sex was nonconsensual; Plaintiff alleges it was fully consensual.

Plaintiff was expelled after Michigan State adjudicated his case using a “single investigator” model in which the school did not hold a hearing and the parties did not have the opportunity to cross-examine one another. He sued alleging constitutional due process violations and violations of Title IX, as well as various state-law claims. He also asked the court to certify a class consisting of

All MSU students and/or former students, including prospective and future students, subjected to a disciplinary sanction, suspension, or expulsion pursuant to a finding of responsibility under the RVSM Policy (or its predecessor and/or successor policy/policies) without first being afforded a live hearing and opportunity for cross[-]examination of witnesses.

The court dismissed Plaintiff’s due process claim against Michigan State, noting that public universities are not “persons” subject to suit under Section 1983. The court also dismissed the claims for monetary damages against the individual defendants in their official capacities as barred by the Eleventh Amendment. Plaintiff’s individual-capacity claims against the individual defendants were allowed to proceed, however, and the court denied qualified immunity to the individual defendants on Plaintiff’s due process claim, finding that by 2017, the right to a hearing and cross-examination in a campus proceeding where credibility was at stake had been clearly established by the Sixth Circuit’s decision in Doe v. University of Cincinnati.

Plaintiff brought a Title IX claim under both an “erroneous outcome” and a “selective enforcement” theory, and the court dismissed both. On the erroneous outcome claim, the court held that while Plaintiff had cited potential bias against accused students, this was not the same thing as bias on the basis of sex, and found that Plaintiff had not shown any specific statements by administrators or other evidence suggesting gender bias.

Plaintiff also alleged selective enforcement, noting that he had asked the university to investigate whether he was too drunk to consent at the time of his encounter with Jane Roe, and that they had failed to do so. The court held that Plaintiff and Roe were not similarly situated, however, because Plaintiff had not alleged that Roe assaulted him until just before filing his lawsuit.

The court also denied the Plaintiff’s motion for class certification, finding certification not appropriate because each individual case would have to be assessed to determine whether the case turned on credibility such that the requirement for a live hearing with cross-examination would be triggered.