Campus Due Process Litigation Tracker

Doe v. Northern Michigan University 2019 U.S. Dist. LEXIS 88717 (W.D. Mich. May 28, 2019)

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

University’s motion to dismiss granted in part and denied in part.

More than a year after the night in question, Jane Roe brought sexual misconduct charges against Plaintiff John Doe, alleging both that she had been too drunk to consent to sex and that he had forced her to perform oral sex on him. He denied the forced oral sex allegation, but affirmed the allegations related to her intoxication level, allegedly because he felt that doing so might lead to a lesser sanction.

Plaintiff brought procedural due process claims against several NMU officials in both their official and individual capacities. The court held that he had stated a plausible violation of his due process rights on the official-capacity claims based on the fact that he was not given a live hearing or an opportunity to cross-examine his accuser. The court did not, however, accept his claims that due process entitled him to legal representation or to a standard of evidence higher than “preponderance.”

On the personal-capacity claims, the court held that the administrators were entitled to qualified immunity on the live hearing and cross-examination claims. According to the law in place at the time, cross-examination was not necessary “if the accused student admits the ‘critical fact[s]’ against him,” which Plaintiff did to some extent by affirming two of the three charges (he was found not responsible for the one he did not affirm).

The court also dismissed Plaintiff’s Title IX erroneous-outcome claim, holding that although he had plausibly alleged the outcome of the disciplinary proceeding was flawed, he had not plausibly alleged a connection to gender bias.

The court allowed Plaintiff’s breach of contract claim to proceed on the grounds that he had not been informed, as required by university policy, of his right to have an adviser present at any disciplinary meetings/hearings.