Campus Due Process Litigation Tracker

Doe v. University of Southern Mississippi, No. 2:18-cv-00153 (S.D. Miss. Nov. 27, 2018)

School type: Public
State: Mississippi
Federal Circuit: Fifth
Decision primarily favorable to: University
Stage of litigation: Motion for TRO/preliminary injunction
Keywords: Cross-examination, Due process

The court denied Plaintiff’s motion for a second preliminary injunction (a first injunction, ordering Plaintiff to be reinstated as a student in good standing during the pendency of the action, was granted).

Plaintiff was suspended for sexual misconduct under a procedure that did not allow for live cross-examination or even the submission of written questions. After Plaintiff filed suit, the court granted a preliminary injunction ordering Plaintiff to be reinstated as a student in good standing during the pendency of the action. USM elected to hold a re-hearing in his case, using new procedures that it believed complied with the court’s previous order and with constitutional due process. The new process allowed for cross-examination by questions submitted to and vetted by a hearing panel.

Plaintiff asked the court to enjoin the university from proceeding until a) the new Department of Education Title IX regulations are finalized or b) Plaintiff is allowed to cross-examine parties through his adviser. The court, explicitly declining to follow the Sixth Circuit’s ruling in Doe v. Baum, denied the motion, holding that the cross-examination the university now proposed to provide was sufficient, and that the Baum decision “appears to go well beyond what was required for reversal.” As for the argument about the regulations, the court held both that (1) there is no guarantee they will be adopted as currently written, and (2) “even if the proposed regulations are adopted in toto, it is not the federal agency’s role to determine what constitutes adequate due process—such a determination remains the role of the courts.”