Campus Due Process Litigation Tracker

Doe v. University of Arkansas-Fayetteville, 2019 U.S. Dist. LEXIS 57889 (W.D. Ark. Apr. 3, 2019)

School type: Public
State: Arkansas
Federal Circuit: Eighth
Decision primarily favorable to: University
Stage of litigation: Motion to dismiss
Keywords: Cross-examination, Due process, Evidentiary standard, Exculpatory evidence, Title IX

The court dismissed Plaintiff’s due process and Title IX claims. Although the case is distinguishable from most campus sexual misconduct cases in that the discipline imposed was relatively minor — Title IX training, 10 hours of community service, and an online sexual violence accountability course — the court did not focus on that fact in dismissing Plaintiff’s due process claims.

This was an incapacitation case in which the Title IX investigator found Plaintiff not responsible for sexual assault, but an appeals panel found him responsible after his accuser appealed the initial finding. Most notably, the court rejected Plaintiff’s claim that his inability to cross-examine his accuser violated his right to due process, pointing out that the now-rescinded 2011 DCL discouraged cross-examination and that the university has “an overwhelming interest in protecting potential victims of sexual assault from cross-examination that may be traumatic or intimidating, which could escalate or perpetuate a hostile environment on campus.” That interest, the court held, outweighs Plaintiff’s interest in preventing an erroneous deprivation of his liberty interest in his reputation, etc.

The court also rejected Plaintiff’s claim that the Title IX coordinator’s failure to interview witnesses with exculpatory information violated his due process rights: “Given the significant burden interviewing all suggested witnesses would have on universities in completing sexual assault investigations in a prompt and equitable manner, due process did not require that Barnett interview every witness with potentially exculpatory information.”

Unlike several other courts to consider the issue, this court also affirmed that preponderance of the evidence is an appropriate standard to use in the campus sexual misconduct setting.

The court also rejected Plaintiff’s Title IX erroneous outcome claim, finding that he had not even sufficiently plead facts to cast articulable doubt on the outcome of the case — normally a very low hurdle to clear, and a surprising finding given that the Title IX investigator found him not responsible initially.