Campus Due Process Litigation Tracker

Doe v. University of Michigan, No. 2:18-cv-11776 (E.D. Mich. Mar. 23, 2020)

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

The court granted Plaintiff’s motion for partial summary judgment on his due process claim. The court granted the university’s motion to dismiss Plaintiff’s Title IX claim, but denied its motion to dismiss his due process claim — and held that the university defendants were not entitled to qualified immunity.

Plaintiff was accused of sexual misconduct by a female student. She claimed the encounter was nonconsensual, he claimed it was consensual, and there were no witnesses. At the time it began investigating in May 2018, the university used a single-investigator model to adjudicate sexual misconduct claims. There was no hearing and no opportunity for cross-examination. Plaintiff filed his lawsuit in June 2018, and his disciplinary proceedings are currently stayed. In September 2018, the Sixth Circuit issued its decision in Doe v. Baum, holding that a live hearing with cross-examination was essential to due process in cases turning on credibility.

The university said it will adjudicate Plaintiff’s case using the Interim Policy it adopted to comply with the Sixth Circuit’s Baum decision, and argued that Plaintiff’s case was moot as a result. The court noted, however, that voluntary cessation of unconstitutional conduct is alone insufficient to moot a claim. Rather, a claim is only moot if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” To determine this, the court asked two questions: (1) Did the process of change involve legislative-like actions, or was it done in a manner that was discretionary and easily reversible? (2) Does the university continue to defend its use of the challenged policy?

The court held that “the university fails under both prongs.” First, it did not use legislative-like procedures to change its policy. Secondly, it continues to defend the old policy: the university president explicitly declared that “the Sixth Circuit got it wrong” in Baum, and that that “he ‘continue[d] to believe’ that their prior method of adjudicating sexual misconduct cases was ‘the best way to determine the truth.’”

Defendants also argued that they should be entitled to qualified immunity on Plaintiff’s due process claim, arguing that the right to a hearing with cross-examination was not “clearly established” at the time of Plaintiff’s investigation, when Baum had not yet been decided. The court held, however, that the right to a hearing with cross-examination “was established by [Doe v. University of Cincinnati] on September 25, 2017, months before the 2018 Policy came into effect and the investigation against Plaintiff launched.” Baum, the court held, merely reiterated and strengthened that holding. Accordingly,

Because the Individual Defendants violated this ruling and Plaintiff’s clearly established constitutional rights, the Court finds that they are not entitled to qualified immunity.

The court did grant Defendants’ motion to dismiss Plaintiff’s Title IX claim, holding that he had not shown a plausible inference of intentional gender discrimination. While things like the university’s “Start By Believing” campaign “may reveal favor towards survivors over the accused,” the court held, this does not equate to evidence of gender bias.

The court granted Plaintiff’s motion for summary judgment on his due process claim, finding that he was deprived of a live hearing and an opportunity for cross-examination in violation of his constitutional right to due process.

Finally, the court evaluated the appropriateness of the university’s Interim Policy in light of the Sixth Circuit’s Baum decision. While the Interim Policy largely complies with Baum, the court noted that it only states that a hearing will be provided “where warranted,” without further explanation. This, the court held, leaves students’ rights impermissibly in doubt. Accused students’ rights, the court held, “must be guaranteed — not left open for interpretation.”