Campus Due Process Litigation Tracker

Messeri v. University of Colorado, Boulder, No. 1:18-cv-2658 (D. Colo. Sept. 23, 2019)

School type: Public
State: Colorado
Federal Circuit: Tenth
Decision primarily favorable to: University
Stage of litigation: Motion to dismiss
Keywords: Cross-examination, Due process, Single investigator, Title IX, Training materials

The court granted in part and denied in part the university defendants’ motion to dismiss Plaintiff’s claims. The court granted the individual defendants’ motion to dismiss Plaintiff’s claims on grounds of qualified immunity.

Plaintiff was expelled after a sexual encounter that he claims was consensual and his accuser, Jane Doe, claims was nonconsensual. There were two witnesses, one male and one female, whose accounts of the evening vary. Jane Doe’s friend told investigators that Plaintiff was trying to get Jane to drink more, and that he kissed her without her permission. Plaintiff’s friend told investigators that he saw Plaintiff and Jane mutually making out, that he never heard Plaintiff encouraging Jane to drink, and that Jane did not appear upset when she and Plaintiff emerged from the bathroom where the sexual encounter took place. Rather, Plaintiff’s friend said Jane became upset after Plaintiff, later in the evening, got off an elevator with another woman after a party.

The university used a single-investigator model to decide the case: there was no hearing, and no opportunity for cross-examination.

Plaintiff alleged procedural due process violations based on 16 separate actions of the university, and also alleged a “stigma plus” due process violation based on the fact that he had a permanent mark placed on his transcript without due process. Defendants moved to dismiss 3 out of the 16 individual due process allegations, as well as the “stigma plus” allegation. The court granted the motion to dismiss with regard to the 3 individual allegations, but denied it as to the “stigma plus” allegation. The “stigma plus” test requires a Plaintiff to demonstrate both reputational harm and the “attendant diminishing of another legal right” — here, his property interest in continued enrollment at a state university. The court allowed this claim to proceed, holding that “Plaintiff, as an enrolled undergraduate student, had a property interest in continued enrollment at the University, which, when coupled with his liberty interest forms an adequate basis for his stigma plus due process claim.”

The court dismissed Plaintiff’s substantive due process claims, holding that he was actually just challenging the process, which is addressed under his procedural due process claims.

The court also dismissed Plaintiff’s Title IX claims, finding that while some of his claims may suggest a “pro-victim” bias on the part of the investigators, this was not evidence of gender bias. With regard to his claim about trauma-informed training, for example, the court held that “training in trauma-informed investigations is not inherently pro-female or anti-male.”

The court granted qualified immunity to the individual defendants on all of Plaintiff’s due process claims. Exercising its discretion, the court addressed the “clearly established” prong without addressing whether there was a constitutional violation, and found that although some of the procedures used by the university have subsequently been held to violate accused students’ due process rights, these rights were at the very least not clearly established as of 2016, when the university conducted its investigation.

Despite the fact that the decision went largely in the university’s favor, the court concluded its opinion thusly, making this a potentially useful opinion for future litigants:

The Court pauses here to make one final observation. The opportunity for at least some form of cross-examination of the complainant and supporting witnesses is increasingly being recognized as an essential right of procedural due process in these cases. Indeed, a review of caselaw nationwide as of September 2019 reveals that a growing number of courts are recognizing that a university student facing a disciplinary proceeding for sexual misconduct is entitled to some form of process that allows him or her to test the credibility of the complainant and supporting witnesses, particularly where credibility issues may be determinative of the inquiry.