Campus Due Process Litigation Tracker

Neal v. Colorado State Univ., Pueblo, 2017 U.S. Dist. LEXIS 22196 (D. Colo. Feb. 16, 2017)

School type: Public
State: Colorado
Federal Circuit: Tenth
Decision primarily favorable to:
Stage of litigation: Motion to dismiss
Keywords: Biased statements, Breach of contract, Cross-examination, Due process, Erroneous outcome, Evidentiary standard, Title IX

University’s motion to dismiss granted in part and denied in part. Federal defendants’ motion to dismiss granted.

This case stems from a complaint brought by a third-party complainant who alleged that Plaintiff had raped a student in the athletic training program, based on a conversation she had with the alleged victim. Both Plaintiff and his alleged victim, Jane Doe, have stated that the sex was consensual. Plaintiff was suspended, and that suspension affirmed on appeal, following a procedure that he alleged was riddled with “procedural flaws and bias”:

[Plaintiff] identifies several procedures that he alleges CSU-Pueblo should have provided but did not, among them: adequate notice of the charges being investigated; identification of the adverse witnesses; an evidentiary hearing for witnesses to testify subject to cross-examination and for Plaintiff to present other evidence in his defense; and adequate notice of the allegations before such hearing. Plaintiff further alleges that the evidentiary standard CSU-Pueblo used — preponderance of the evidence — was unfair and insufficient for the criminal-like charges and potential sanctions.

Plaintiff sued the university and several of its administrators alleging § 1983 due process violations, Title IX violations, breach of contract, and promissory estoppel. He also sued the federal Department of Education alleging that it “coerced” the university to use unfair procedures through its April 4, 2011 “Dear Colleague” letter, which Plaintiff alleged violated the Administrative Procedure Act.

On Plaintiff’s Title IX “erroneous outcome” claim, the court found that numerous procedural flaws in the investigation and adjudication — such as the failure to interview witnesses suggested by Plaintiff, the failure to consider Jane Doe’s statement that the sex was consensual, etc. — were suggestive of bias. Bias alone, of course, is insufficient — a plaintiff must plead facts suggesting that the bias was because of his sex. Here, the court held that taken together, Plaintiff’s allegations of “gender-skewed implementation of the 2011 DCL, pressure to avoid DOE investigation and loss of federal funding, procedural shortcomings against Plaintiff’s ability to present evidence and question witnesses, and [the university investigator’s] gender-biased statements” sufficed to suggest gender bias.

On Plaintiff’s procedural due process claim, the court dismissed his claim for damages against the university and several administrators in their official capacities as barred by Eleventh Amendment immunity. On his claim for injunctive relief against the university, the court used the Supreme Court’s balancing test from Mathews v. Eldridge to analyze whether Plaintiff had received sufficient due process: “(1) the private interest that will be affected by the official action, (2) the probable value, if any, of additional or substitute procedural safeguards, and (3) the government’s interest, including the fiscal and administrative burden, that the additional or substitute procedural requirements would entail.”

The court first agreed that Plaintiff’s private interest was “substantial.” The court then considered Mathews factors (2) and (3) in the context of several of Plaintiff’s particular procedural complaints.

Biased proceeding: The court noted that “applying the Mathews balancing test to a claim of bias is awkward,” but felt it was important enough to do anyway because impartiality “is the bedrock for all procedures requisite to due process.” The court then held that the university had not met its burden of proving it was entitled to dismissal on this point.

Hearing: The court found that Plaintiff’s interest in a live hearing was high, holding that “If there had been an in person meeting for each of these persons to tell their side of the story to the decisional officer … that would have made the allegedly erroneous decision less likely.” And while acknowledging that holding a hearing with cross-examination would impose some degree of greater administrative burden on the university, the court held that “In light of the seriousness of Plaintiff’s private interests at stake, and the foregoing legal authorities, the [university] has not shown it is entitled to dismissal of the due process claim regarding Plaintiff’s right to a hearing in which to question witnesses, present witnesses and present other evidence.”

The court also allowed Plaintiff’s breach of contract claim — which was based on arguments that the university failed to follow its own policies in conducting Plaintiff’s disciplinary process — to proceed. Plaintiff’s promissory estoppel claim was also allowed to proceed based on similar reasoning.

The court dismissed Plaintiff’s claims against the Department of Education on standing grounds. Plaintiff argued that three aspects of his disciplinary procedure were directly caused by the Department’s April 4, 2011 Dear Colleague letter: (1) CSU’s use of the preponderance standard; (2) CSU’s failure to allow cross-examination; and (3) CSU’s process allowing complainants to appeal. The court noted, however, that of these, the DCL only made #1 mandatory, and that — unlike some other schools — CSU had already been using the preponderance standard prior to its issuance.

The case later settled.