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Due Process Legal Update: The Kangaroo Lives On

By November 30, 2016

In my most recent due process legal update, I mentioned that a California appellate court held oral arguments in the case of a University of California, San Diego student who alleged he was denied a fair hearing in a sexual misconduct case at UCSD. Last July, a California judge ruled that UCSD had denied the student a fair hearing and that the evidence did not support the university’s finding of responsibility.

The university appealed the ruling to the California court of appeals. FIRE filed an amicus brief in that case, arguing (among other things) that the UCSD hearing panel’s extensive reliance on the report of an investigator who did not testify at the hearing raised serious fairness concerns. As we pointed out in our brief, universities increasingly rely—either heavily, as UCSD did, or even entirely—on investigators rather than hearings to determine responsibility in sexual misconduct cases. These “single investigator” systems raise significant due process concerns, articulated perfectly by Judge Dennis Saylor in the Doe v. Brandeis decision:

The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.

At oral arguments, the judges hearing the UCSD appeal expressed serious concern with UCSD’s procedure. Justice Richard Huffman said that “whatever we resolve at the end of the full analysis of the record … there’s parts of this procedure that give me grave pause.” The judges were particularly concerned with the fact that the accused student was not given access to the notes of the university’s investigator, with Justice Huffman stating that he was “at a total loss to understand why anybody interested in a fair and accurate outcome would do something like that.” After reading the case briefs, he said, “my comment was, ‘Where’s the kangaroo?’”

Those of us who found UCSD’s procedure lacking were encouraged by the judges’ comments at oral argument. Unfortunately, however, the court issued a disappointing ruling last week. Despite remaining “concerned that the procedure employed by UCSD has great potential to be unfair to a student accused of violating the Sex Offense Policy,” the court ruled in favor of UCSD and overturned the lower court’s decision. Specifically, the court held that “the Panel’s substantive decision is supported by substantial evidence, the hearing provided John [Doe, the accused student] did not deny him due process, and the sanctions were not a product of an abuse of discretion.”

This decision illustrates the uphill battle that student plaintiffs face in seeking relief from the courts for harms stemming from university judicial proceedings. In this case, the court made very clear that it was bound by an extremely deferential standard of review: “We are required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict.”

A federal court’s recent dismissal of a case at Florida’s Lynn University illustrates this same phenomenon. In Doe v. Lynn University, a student who was suspended from Lynn University filed suit alleging that Lynn’s procedures discriminated against him on the basis of sex in violation of Title IX. Among other things, he alleged that in his sexual misconduct proceeding, his accuser was allowed to be actively represented by an experienced lawyer—in violation of the university’s policy—while he was limited to a silent, non-attorney advisor, who in his case was his mother.

To proceed to the next stage of litigation, the student’s complaint had to sufficiently allege both (1) facts that cast doubt on the outcome of the proceeding, and (2) facts plausibly establishing a link between that erroneous outcome and gender bias. With regard to the first prong, the court considering the university’s motion to dismiss held that the plaintiff had alleged facts “more than sufficient to support the plausible inference that the disciplinary proceeding against Plaintiff was procedurally flawed.” The court ruled that the student had not, however, alleged enough facts “to support the plausible inference that he was discriminated against on the basis of his gender.”

The allegations in the student’s complaint focused on the environment of intense national pressure on colleges and universities to more aggressively address sexual assault on campusan environment in which, as FIRE has documented extensively, many universities have reduced protections for accused students, even dispensing with hearings altogether in many cases. But these general allegations, the court held, were insufficient to establish a causal connection in his particular case. For his case to proceed, the student would need to point to evidence “that this national backlash resulted in gender-biased disciplinary proceedings” at Lynn.

Although the court granted the university’s motion to dismiss, it did so without prejudice, which gives the student plaintiff an opportunity to file an amended complaint pointing to the kinds of specific facts necessary to plausibly allege gender bias. The judge gave the plaintiff until November 30—which is today—to file his amended complaint, so we will keep you posted on whether he actually does so.

One more ruling, from the District of New Jersey, illustrates how differently courts around the country are treating these legally similar cases. The case of Collick v. William Paterson University involves two male students who were accused of sexually assaulting a female classmate. Although a grand jury declined to indict them on charges of sexual assault, they were expelled from William Paterson University (WPU), and filed suit. This month, a New Jersey federal judge denied the university’s motion to dismiss many of their claims (although some, including racial discrimination claims, were dismissed).

Like the plaintiff at Lynn, the WPU students alleged (among other things) that the university had discriminated against them in violation of Title IX. In this case, the judge held that although the gender-discrimination claims were “rife with conclusory assertions,” they were sufficient to survive a motion to dismiss. Notably, the court did credit the plaintiffs’ allegation that the national pressure affected WPU’s process, stating that it was a “commonsense inference that the public’s and the policymakers’ attention to the issue of campus sexual assault may have caused a university to believe it was in the spotlight.”

More than a year into covering these decisions for FIRE, it is clear to me that while individual students may find relief in the courts, fully addressing the campus due process crisis is going to take more than just lawsuits. There are many such avenues: lobbying for bills that grant students the right to counsel in disciplinary hearings; continuing to push back against the federal overreach that has contributed greatly to the current climate; and speaking out publicly for the rights of the accused even when doing so is politically unpopular. The state of the law being what it is, all of these efforts will be critically important in the ongoing fight for due process on campus.

Schools: William Paterson University University of California, San Diego