Campus Due Process Litigation Tracker

Messeri v. DiStefano, 2020 U.S. Dist. LEXIS 150942 (D. Colo. Aug. 20, 2020)

School type: Public
State: Colorado
Federal Circuit: Tenth
Decision primarily favorable to: Student
Stage of litigation: Motion for summary judgment
Keywords: Cross-examination, Due process, Evidentiary standard, Single investigator, Training materials

The court denied the university’s motion for summary judgment on Plaintiff’s procedural due process claims on a number of grounds, and granted the motion on other grounds.

On September 12, 2016, a female student known in court papers as Jane Doe reported to the University of Colorado Police Department that Plaintiff had forced her to perform oral sex on him. The police reported this allegation to the university’s Office of Equity and Compliance (OIEC), which opened an investigation. OIEC’s investigation relied heavily on the interviews performed by the police. OIEC interviewed several witnesses, but did not interview Plaintiff or Jane Doe, instead relying exclusively on recordings of their interviews with police. OIEC’s investigators found Plaintiff responsible. After their finding of responsibility was reviewed by the university’s Standing Review Committee, Plaintiff was expelled.

Plaintiff’s lawsuit alleges that the university violated his procedural due process rights in a number of ways. Perhaps most critically, he alleges that he was denied the right to a hearing and the opportunity for cross-examination in violation of his due process rights. To assess Plaintiff’s due process claims, the court applied the balancing test developed by the Supreme Court in Mathews v. Eldridge, which considers:

(1) the interests of the individual in retaining their property and the injury threatened by the official action; (2) the risk of error through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the costs and administrative burden of the additional process, and the interest of the government in efficient adjudication.

On the first factor, the court held that “Plaintiff has a strong interest in completing his education and avoiding mistaken expulsion from the University.” On Plaintiff’s claim of entitlement to a hearing, the court found that the probable value of the additional safeguard was high, noting that a hearing before a neutral arbitrator who could look at the evidence from a “fresh perspective” would reduce the risk of error. The court also found that the added burden on the university of providing a hearing would not outweigh Plaintiff’s strong interest. Therefore, the court held, “A reasonable factfinder could thus find that the University’s failure to provide Plaintiff a hearing before a neutral arbitrator violated his procedural due process.”

The court also held that the lack of opportunity for cross-examination may have violated Plaintiff’s due process rights. The university argued it had a strong interest in not “converting its classrooms to courtrooms,” but the court ruled that the university’s interest “truly pales” in comparison to the risk to Plaintiff of wrongful expulsion.

Additionally, the court held that the university’s decision to withhold the identity of one of the witnesses in the case may have violated Plaintiff’s due process rights. The university, citing Eleventh Circuit precedent, argued that due process does not require a university to give students facing a hearing the names of the witnesses who will be testifying against them. The court held, however, that where there was no hearing and “the opposing witnesses did not testify in the presence of the accused,” withholding witness identities could in fact violate an accused student’s due process rights.

Plaintiff complained about several other aspects of the disciplinary process that the court held did not violate his due process rights. Most notably, the court held that the university’s use of the “preponderance of the evidence” standard, rather than the higher “clear and convincing” standard, was constitutionally permissible, writing that

Increasing the evidentiary standard would undoubtedly make it less likely that the University erroneously sanctioned Plaintiff or others similarly situated. The Court finds, however, that the University’s interest in a lower standard of proof is also strong, and ultimately outweighs Plaintiff’s interests. If the University were required to utilize a clear and convincing evidentiary standard—which is higher than the standard used in other civil actions—it would have to expend more resources to investigate and adjudicate cases, which would detract from other administrative priorities. Moreover, requiring a higher evidentiary standard would make it more likely that the University reaches false negatives, i.e., instances in which a culpable party is not sanctioned. Such a result would detract from the University’s “strong interest in the ‘educational process,’ including maintaining a safe learning environment for all its students.”

Among other things, the court also held that Plaintiff’s due process rights were not violated by the university’s reliance on police interviews of Plaintiff and Jane Doe or by the university’s use of trauma-informed investigative techniques.