Campus Due Process Litigation Tracker

Doe v. University of Mississippi, 361 F. Supp. 3d 397 (S.D. Miss. 2019)

School type: Public
State: Mississippi
Federal Circuit: Fifth
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Biased statements, Cross-examination, Due process, Erroneous outcome, Evidentiary standard, Exculpatory evidence, Selective enforcement, Title IX, Training materials

The court dismissed Plaintiff’s due process claim against most of the individual defendants on grounds of Eleventh Amendment immunity, but allowed the claim to proceed against the university president. The court also allowed Plaintiff’s Title IX and equal protection claims to proceed.

The court found that Plaintiff had pled specific facts about the conduct of the university’s Title IX investigator that plausibly suggested gender bias (such as her exclusion of exculpatory evidence and her statement that she had never seen a case of “regret sex.”) He also plausibly alleged that he was treated differently by the university for engaging in the same conduct as his accuser: having sex with someone under the influence of alcohol.

With regard to the §1983 due process claim against the university president, the court turned to the Fifth Circuit’s leading Title IX campus due process decision in Plummer v. University of Houston, where the Fifth Circuit ruled that because the evidence of guilt was overwhelming (the incident was captured on video), other procedural safeguards were not as necessary. The court distinguished this case from Plummer, holding that because the facts “do not suggest overwhelming proof that Doe sexually assaulted Roe,” “the amount of process due may be higher than in Plummer.”

Plaintiff stated a plausible due process claim based on his allegations that the panel was improperly trained, because “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.”

Plaintiff also stated a plausible due process claim based on his allegations that he was not given an opportunity to learn the identity of the panel members before the hearing, because “the
presence of an allegedly biased panel member raises a due-process problem.”

Additionally, Plaintiff stated a plausible due process claim based on the lack of any opportunity to cross-examine his accuser or witnesses, because “[i]t is at least plausible in this he said/she said case, that giving Doe an opportunity to cross-examine Roe could have added some value to the hearing” without unreasonably burdening the university, and based on the university’s use of the preponderance of the evidence standard, “given the developing nature of the law” in this area.

The court also denied the university’s motion to dismiss Plaintiff’s equal protection claim, which was based on the argument that the university “disciplin[ed] him for engaging in sexual intercourse with Roe while she was under the influence of alcohol but fail[ed] to discipline Roe for engaging in sexual intercourse with him.”