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Court: Exclusion of evidence, biased training, lack of cross-examination, low evidentiary standard may have violated student’s due process rights

While the Department of Education considers new regulations on how colleges and universities adjudicate claims of sexual misconduct on campus, the wave of litigation stemming from how they currently handle those claims continues unabated.

Yesterday, a federal court in Mississippi denied the University of Mississippi’s motion to dismiss a student’s claim that the university violated his due process rights in numerous ways during the sexual misconduct investigation and hearing that ultimately left him suspended. (Technically speaking, these claims will proceed against the university’s president, since the university itself is immune from suit under the Eleventh Amendment.)

The case stems from a sexual encounter between the plaintiff, an Ole Miss student proceeding under the pseudonym Andrew Doe, and his date to a fraternity formal. His date, a fellow student known by the pseudonym Bethany Roe, never filed a complaint against Doe. According to Doe’s lawsuit, the complaint was filed by one of Roe’s friends, and Roe herself told law enforcement that although both students had been drinking, the sex had been consensual. Roe did not participate in the campus disciplinary proceedings against Doe.

Doe’s lawsuit alleges the university violated his due process rights in a number of different ways. Several of his concerns relate to the impartiality both of the university’s Title IX investigator and of the panel that heard his case.

He alleges that the Title IX investigator, Honey Ussery, deliberately refused to consider certain exculpatory evidence, including Bethany Roe’s statements to law enforcement that the sex was consensual, when preparing her investigative report for the hearing panel. He also alleges that the materials used to train the hearing panel were unfairly biased in favor of complainants in a number of ways, such as by implying that “when complainants withhold exculpatory details or lie to an investigator or the hearing panel, those lies should simply be considered a side effect of an assault.”

The court allowed Doe’s due process claim to proceed on these impartiality grounds, holding that “there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered. Coupled with the alleged deficiencies in the investigation, it is plausible that the scales were tipped against Doe” in a manner that violated his due process rights.

The court also held that Doe’s inability to challenge the composition of the panel that heard his case may have violated his due process rights. According to Doe, one of the panel members “had previously mocked the defenses raised by men accused of sexual assault,” but he only learned she was on the panel minutes before his hearing. Noting that “the presence of an allegedly biased panel member raises a due-process problem,” the court held that “[t]his portion of the claim will go forward.”

The lack of any opportunity for cross-examination may also have violated Doe’s due process rights, according to the court, which cited the U.S. Court of Appeals for the Sixth Circuit’s recent decision in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018). Baum holds that “if 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.”

Doe also alleged that the school’s use of the low “preponderance of the evidence” standard of proof— which from April 2011 until September 2017 was mandated by the Department of Education’s Office for Civil Rights — violated his due process rights. The court allowed this claim to proceed as well, noting that it was a “thorny issue” and an “unsettled” and “developing” area of the law. (In September, a federal district court in New Mexico ruled that preponderance was “not the proper standard for disciplinary investigations such as the one that led to [the plaintiff’’s] expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on [the plaintiff’s] transcript.”)

The court’s decision yesterday is already the fifth opinion of 2019 involving lawsuits brought by a student accused of sexual misconduct on campus; four of those five decisions have been favorable to the accused student.

Since 2011, there have been more than 400 lawsuits brought in federal and state courts by accused students alleging they were denied a fair process in campus sexual misconduct adjudications. At public universities, these cases typically include a claim, like the one here, that the university violated the accused student’s constitutional due process rights. As these cases work their way through the courts, the law surrounding universities’ due process obligations continues to evolve.

While courts have historically been reluctant to interfere in matters of internal college discipline, that traditional deference has begun to change as colleges increasingly adjudicate claims not just of academic misconduct but also of a quasi-criminal nature. As one federal judge recently wrote, there is a serious question as to “whether this context—wherein a [student] is accused of conduct which may form the basis for criminal prosecution—changes the...calculus” in a way that requires a university to provide accused students with more robust due process protections.

FIRE will continue to keep you updated on this growing body of law as it develops.

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