Campus Due Process Litigation Tracker

Doe v. Virginia Polytechnic Institute and State University, No. 7:19-cv-00249 (W.D. Va. Mar. 19, 2020)

School type: Public
State: Virginia
Federal Circuit: Fourth
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Due process, Erroneous outcome, Selective enforcement, Title IX

The court granted the university’s motion to dismiss Plaintiff’s due process claim, but allowed his Title IX claim to proceed.

The case stems from accusations of domestic violence against the Plaintiff, Jacob Doe, brought by his ex-girlfriend, Jane Roe. Doe also alleged that Roe assaulted him repeatedly during the course of their relationship. Doe was found responsible for domestic violence and suspended for a year and a half.

Doe alleged there were numerous procedural irregularities throughout the investigation and adjudication of his case. Among other things, he alleges that the university’s notice of investigation did not contain specific information about the allegations against Doe, and that the university refused to interview the witnesses he identified. But Doe’s complaint focused in particular on the fact that the university treated his complaint of domestic violence against Jane Roe very differently from the way the university treated her complaint against him. When he complained informally, the university did not even open an investigation. When he filed a formal complaint, the university finally did investigate and find Jane Roe responsible for “dating violence,” but she was only sanctioned with probation.

Doe brought a due process claim pursuant to 42 U.S.C. § 1983 and a sex-discrimination claim pursuant to Title IX.

While the court held that Plaintiff’s claims for injunctive relief (to have his record expunged) did fall within the Ex parte Young exception to Eleventh Amendment immunity with regard to the individual defendants, it nonetheless dismissed his due process claim on the grounds that he had not shown either a property or a liberty interest in his continued enrollment at Virginia Tech.

With regard to the liberty interest, the court noted that it had “previously held that a public university student does not have a protected liberty interest in his continuing education.” There could be a protected property interest if established by state statute or regulation, or by contract or policy with the university. Plaintiff did not argue that there was a state statute or regulation which conferred a protected property interest, so the question became whether there was a contract or policy that did so.

Unlike in other cases in the courts of the Fourth Circuit, Plaintiff in this case did not point to a Virginia Tech policy that supports a “legitimate claim of entitlement” to continued enrollment. Rather, he argued that his payment of tuition created an implied contract between him and the university that gave rise to a protected property interest. The court held, however, that there was no Fourth Circuit authority to support this argument, and dismissed his due process claim.

However, the court allowed Plaintiff’s Title IX claim to proceed. Analyzing his claim under the “erroneous outcome” framework, the court noted that Plaintiff needed to point both to facts casting articulable doubt on the outcome of his case and facts linking that outcome to gender bias. The procedural irregularities were sufficient to create articulable doubt, and the “differences in treatment [Plaintiff] received both as the subject of an investigation and as a complainant” were sufficient, at this stage, to suggest gender bias. Specifically, the court noted:

  • “In contrast to Roe, who received advice and was encouraged to file a complaint, nobody from the Title IX or student conduct office met with Doe to help him file a complaint or discuss his rights or options under the Title IX process.”
  • “Doe was treated differently than Roe throughout their investigations and hearings”; for example, “While Doe received a “no-contact” order prohibiting him from contacting Roe, defendants did not issue the same order to Roe in response to Doe’s allegations.”