Campus Due Process Litigation Tracker

Doe v. Michigan State University, No. 1:19-cv-00226 (W.D. Mich. Dec. 10, 2019)

School type: Public
State: Michigan
Federal Circuit: Sixth
Decision primarily favorable to: University
Stage of litigation: Motion to dismiss
Keywords: Cross-examination, Due process, Erroneous outcome, Evidentiary standard, Title IX

The court granted the university’s motion to dismiss Plaintiff’s due process, Title IX, and equal protection claims.

The case stems from behavior that occurred within a group of friends — all first-year medical students — during a drunken night at the medical school’s “Med Ball.” Plaintiff had (at different points during the night) sexual contact with two women, Jane Roe 1 and Jane Roe 2, contact he claims was consensual. Both women maintain the contact was nonconsensual. In their second year of medical school, both women requested not to be placed with Plaintiff in their clinical rotations, and when asked by the university about their requests, they disclosed the encounters and were informed that they should report them to the university’s Office of Institutional Equity, which they did.

Plaintiff was initially found responsible under an investigative model, but the university later held a hearing pursuant to the Sixth Circuit’s decision in Doe v. Baum at which “[h]e and his counsel were permitted to, and did, cross-examine Roe 1, Roe 2, and all other witnesses.” However, “Roe 1 was permitted to refuse to answer questions on cross-examination.” The administrative law judge (ALJ) presiding over the hearing found the Roes’ testimony more credible than Plaintiff’s, and found him responsible for policy violations in both encounters. He was dismissed from the medical school.

Plaintiff alleged that the university violated his due process rights when it allowed Roe 1 to refuse to answer several of the questions she was asked during cross-examination. The court dismissed this argument, ruling that “Baum still only requires ‘some form’ of cross examination. It does not require that all submitted questions are asked, nor does it require all asked questions to be answered.”

Plaintiff also brought a Title IX “erroneous outcome” claim, which requires a party to plead facts both casting articulable doubt on the outcome of a disciplinary proceeding and connecting that erroneous outcome to gender bias. The court found that Plaintiff had not cast articulable doubt on the outcome of the case. Plaintiff cited some disparities between the investigator’s findings and the ALJ’s findings, such as the fact that the investigator found Roe 1 was too drunk to consent while the ALJ found that she was not too drunk, but that the sex had been nonconsensual. While the court acknowledged that inconsistencies in findings had been treated as evidence of articulable doubt in the case of Doe v. Miami Univ., the court found that the inconsistencies in that case were on a different order of magnitude than the inconsistencies here. Plaintiff made various other allegations, including the fact that he was not permitted to introduce a polygraph and that Roe 1 did not, as required by university policy, pre-submit her cross-examination questions to the ALJ, but the court found them all to be unavailing.

The court also held that even if Plaintiff had cast articulable doubt on the proceeding’s outcome, he had not plead anything beyond the most conclusory allegations to support his claim of gender bias.

Plaintiff also asserted an equal protection claim on two grounds. First, he claimed that he was discriminated against on the basis of gender, which required him to show that a similarly situated female was treated differently. Because he presented “no allegations that a woman who engaged in the same type of conduct was treated differently,” the court dismissed that claim. He also claimed that the university violated the Equal Protection clause by subjecting students accused of sexual misconduct to a lower evidentiary standard than students accused of other types of misconduct. Because his claim did not involve a “suspect class,” the court reviewed MSU’s use of the preponderance standard using rational basis review. The court agreed that “following the 2011 Dear Colleague Letter is a rational basis for applying the preponderance of the evidence standard to sexual misconduct hearings,” and dismissed his claim.