Campus Due Process Litigation Tracker

Doe v. University of Mississippi, 2018 U.S. Dist. LEXIS 123181 (S.D. Miss. July 14, 2018)

School type: Public
State: Mississippi
Federal Circuit: Fifth
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Due process, Erroneous outcome, Exculpatory evidence, Title IX, Training materials

The court allowed Plaintiff’s Title IX claim to proceed. The court also allowed Plaintiff’s procedural due process claim to proceed against the president in his official capacity, but dismissed the rest of the claims due to Eleventh Amendment immunity and lack of subject matter jurisdiction.

Plaintiff and Jane Roe had sex, which Plaintiff said was consensual and Roe said was not. Plaintiff brought suit after he was found responsible in a university hearing. He sued under Title IX on “erroneous outcome” and “deliberate indifference” theories. To state a viable claim under an erroneous outcome theory, a Plaintiff must show facts that cast articulable doubt on the outcome of the proceedings and facts that suggest gender bias may have contributed to the erroneous outcome. After finding that “the Amended Complaint pleads a plausible claim that the sexual encounter was consensual and that the outcome was erroneous,” the court turned to the question of gender bias and found that Doe had also stated a plausible claim there.

Specifically, Doe pleaded facts suggesting that the university’s Title IX investigator, Honey Ussery, excluded potentially exculpatory evidence from her report, which the court held plausibly suggested that Ussery treated Roe more favorably than Doe. According to the judge, Ussery did not report “all evidence” (breaching her duty to do so) and completed a biased investigation.

Because Plaintiff successfully plead a Title IX violation under the “erroneous outcome” theory, the court declined to address the question of deliberate indifference, instead deeming the issue moot.

Turning to Plaintiff’s procedural due process claims, the court first rejected his claims that (1) the failure to turn over all evidence, including exculpatory evidence, to him prior to his hearing violated due process; (2) the university had subpoena power and could have compelled the testimony of witnesses in his case; (3) the fact that he was limited to indirect cross-examination by submitting written questions to an administrator violated his due process rights; (4) late disclosure of the members of his hearing panel, which was against school policy, violated his due process rights; and (5) the failure to declare a mistrial after Roe mentioned a previous disciplinary hearing in Plaintiff’s second hearing violated due process.

However, the court held that Plaintiff had stated a plausible due process claim based on the Title IX coordinator’s investigation, report, and training materials:

This is a he-said/she-said case, yet there seems to have been an assumption under Ussery’s training materials that an assault occurred. As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered. It is therefore plausible that the scales were tipped against [Plaintiff] to such a degree that further procedural safeguards may have lessened the risk of an erroneous deprivation.

The court also held that Plaintiff had stated a plausible due process claim based on the university’s use of the preponderance of the evidence standard: “Given the developing nature of the law, and the fact that other portions of this claim survive Defendants’ Rule 12(b)(6) attack, the Court elects to carry this issue beyond the pleading stage.”