Campus Due Process Litigation Tracker

Doe v. University of Arkansas – Fayetteville, 2020 U.S. App. LEXIS 28193 (8th Cir. Sep. 4, 2020)

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

On appeal from the District Court’s dismissal of Plaintiff’s Title IX and due process claims, the Eighth Circuit reversed the dismissal of Plaintiff’s Title IX claim but affirmed the dismissal of his due process claim.

The case stems from a 2017 sexual encounter between Plaintiff and his accuser, known in court papers by the pseudonym Jane Roe. According to Plaintiff’s complaint, when Plaintiff would not allow Roe to stay over at his apartment after a consensual sexual encounter, Roe became angry and later attempted suicide. She subsequently filed a complaint against Plaintiff with the university’s Title IX office, alleging that she had been incapacitated by alcohol and unable to consent to sex.

Following an investigation, the university’s Title IX coordinator issued a decision finding Plaintiff not responsible on the grounds that “the evidence was insufficient to establish that it was more likely than not that Roe was intoxicated to the point of incapacitation.” Specifically, the Title IX coordinator noted that “Roe’s consumption of alcohol had not substantially impacted her decision-making capacity, awareness of consequences, and ability to make fully informed judgments. He cited Roe’s ‘coherent, error-free, and goal-oriented’ text messages en route to Doe’s residence as evidence that she was ‘capable of making fully informed judgments regarding her actions.'”

Roe appealed the decision, arguing that under university policy, sexual assault could be accomplished by force or incapacitation, and that the university had failed to consider the issue of force. Specifically, she said that acts performed on an incapacitated person are necessarily by force, rather than alleging that Plaintiff had actually used physical force in the encounter. Plaintiff requested clarification on her allegations, arguing that “Roe’s statements on appeal were ‘confusing’ on this issue, and it was ‘unclear whether the allegation is force or not.'”

The university refused to clarify, and the appeals board found Plaintiff responsible by a vote of 2-1. They sanctioned him with Title IX training and community service. Plaintiff subsequently sued, alleging that the university had discriminated against him on the basis of sex and had violated his Constitutional due process rights.

The Eighth Circuit reversed the lower court’s dismissal of Plaintiff’s Title IX claim, finding that Plaintiff had alleged several circumstances that, “taken together,” stated a plausible claim of sex discrimination. Specifically, Plaintiff had plausibly alleged that:

  • the appeals’ panel’s decision was against the weight of the evidence;
  • the extraordinarily mild sanction, which strayed from the usual sanction of expulsion in findings of responsibility for forcible sexual assault, “suggests that the University found him responsible for sexual assault in order to avoid further negative media attention and to portray a stricter approach to sexual assault cases”; and that
  • the university was under pressure to appear to be taking a hard line on sexual assault, both from state and federal investigations and from a publicity campaign launched by Roe herself after Plaintiff was initially found not responsible.

Collectively, the court held, these allegations support a plausible sex discrimination claim.

The court held, however, that the lower court had not erred in dismissing Plaintiff’s due process claim. Plaintiff first alleged that he did not have adequate notice of Roe’s use-of-force theory, but the court held that because Roe had raised the argument in her appeal documents, Plaintiff had received sufficient notice. The court also rejected Plaintiff’s argument that the university had improperly shifted the burden of proof to him to prove consent, holding that “we understand the credibility determinations to mean that the panel believed that Roe did not consent. Based on that finding, the University overcame the presumption of non-responsibility.”

Plaintiff also alleged that his due process rights were violated because he did not have the opportunity to cross-examine his accuser. Citing the First Circuit’s decision in Haidak v. University of Massachusetts, however, the court held that “[a] process under which the adjudicating panel poses questions to witnesses is not ‘so fundamentally flawed as to create a categorically unacceptable risk of erroneous deprivation.'” The court acknowledged that a panel’s questioning could be insufficient in a given case, but held that Plaintiff had not identified any specific flaws in the panel’s questioning in his case. Finally, the court rejected Plaintiff’s argument that the university’s use of the “preponderance of the evidence” standard violated his due process rights, holding that “we do not think a higher standard of proof is compelled by the Constitution.”