Due process legal update: Judge holds that ‘preponderance of evidence’ standard may be unconstitutional in campus sexual misconduct proceedings

By September 28, 2018

Last week, a federal judge in New Mexico allowed a student’s due process lawsuit to proceed against the University of New Mexico and its president, but dismissed his claims against several individual administrators, holding that because the “contours of [the plaintiff’s] due process rights were not clearly established,” the university administrators who punished him were entitled to qualified immunity.

In his opinion, Judge James Browning made some of the strongest and most remarkable statements to date in favor of a student’s right to due process in a campus proceeding.

The student-plaintiff, known in the pleadings only as “J. Lee,” alleged that the process used by the University of New Mexico to find him responsible for sexual misconduct violated his constitutional right to due process. When the university moved to dismiss his claim, Judge Browning found that Lee had indeed stated a plausible due process claim. Among other things, the court held that:

  • “Lee’s allegations plausibly support a finding that his sexual misconduct investigation resolved into a problem of credibility such that a formal or evidentiary hearing, to include the cross-examination of witnesses and presentation of evidence in his defense, is essential to basic fairness.”
  • “[P]reponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”
  • “[The fact] that UNM provides an evidentiary hearing in cases of alleged non-sexual misconduct but not in cases of alleged sexual misconduct supports Lee’s claim that the process he received was constitutionally inadequate.”

On the question of cross-examination, this is the latest in a growing line of cases holding that cross-examination is essential to due process when credibility is at issue. Earlier this month, the U.S. Court of Appeals for the Sixth Circuit ruled that “[I]f a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

On the second point — the evidentiary standard — this opinion is remarkable. It is, to my knowledge, the first federal court decision explicitly stating that “preponderance of the evidence” is an inadequate standard in campus disciplinary cases with such severe potential consequences. Of particular importance is the fact that the judge considered the lasting impact of “a permanent notation” on the plaintiff’s transcript in reaching this finding. FIRE has long argued that “[i]f a de facto sex offender registry for college students is to be constructed, it is all the more critical that procedural protections be in place to ensure trustworthy results,” and it is heartening to see a judge reach the same conclusion. I hope other courts (there are currently hundreds of lawsuits by accused students pending in federal and state courts around the country) will follow suit.

Judge Browning also noted the difference between UNM’s process for students accused of non-sexual misconduct, who get an evidentiary hearing, and its process for students accused of sexual misconduct, who do not. This phenomenon is hardly unique to UNM; a disturbing number of universities offer fewer procedural protections to students accused of sexual misconduct than students accused of non-sexual misconduct. Other schools that provide students with a meaningful hearing in non-sexual misconduct cases, but not in sexual misconduct cases, include Brown, Cal Tech, Dartmouth, Georgetown, Notre Dame, Princeton, Penn, Tufts, UC Berkeley, UCLA, the University of Virginia, and Washington University in St. Louis, to name just a few. (For more information on procedural protections at these and other schools, stay tuned for FIRE’s second annual report on campus due process, coming out later this fall.)

Despite these findings, however, Judge Browning dismissed Lee’s claim against the individual administrators on grounds of qualified immunity. Under the doctrine of qualified immunity, state officials and employees are entitled to immunity from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

This result, while disappointing, is not altogether surprising. Until the recent deluge of lawsuits brought by students accused of sexual misconduct, the law surrounding students’ due process rights in campus proceedings was not very well fleshed-out. Recently, a growing number of courts have begun to clarify the scope of these rights, but Judge Browning clearly felt that the parameters were still insufficiently clear to hold university administrators personally liable. Hopefully, the many additional rulings certain to come in the hundreds of accused-student lawsuits still pending will help increase certainty and clarity. And in the meantime, Lee’s due process claim against the university itself continues on.