Campus Due Process Litigation Tracker

Norris v. University of Colorado, Boulder, 362 F. Supp. 3d 1001 (D. Colo. 2019)

School type: Public
State: Colorado
Federal Circuit: Ninth
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Biased statements, Cross-examination, Due process, Title IX

University’s motion to dismiss granted in part (on breach of contract, due to Eleventh Amendment immunity) and denied in part (on Title IX and constitutional due process claims).

The court denied the university’s motion to dismiss Plaintiff’s Title IX erroneous outcome claim. According to the court, Plaintiff cited numerous procedural flaws that could cast articulable doubt on the outcome of his case: “(1) withholding service of the notice of investigation until after Plaintiff was interviewed by police; (2) denying Plaintiff a hearing; (3) denying Plaintiff the right to cross-examine his accuser; (4) precluding Plaintiff from questioning witnesses; (5) unreasonably denying Plaintiff access to the investigation file; (6) failing to provide Plaintiff with any information about the Standing Review Committee, which reviewed the Investigators’ finding; and (7) allowing the Title IX Coordinator—who determined the sanction in Plaintiff’s
case—to conduct an ‘administrative review’ of her own prior determination.” And Plaintiff pointed to sufficient evidence of gender bias (including the university’s disparate treatment of him and his accuser throughout the investigative process, as well as some involved administrators’ outspoken advocacy against sexual assault) to plausibly allege a causal connection between the outcome and gender bias.

With regard to Plaintiff’s due process claim, the court ruled that he had plausibly alleged a due process violation stemming from “the timing of the notice and his conditions to access of the investigation.” The court also held that “with the credibility of the parties in the investigation at issue, the lack of a full hearing with cross-examination provides evidence supporting a claim for a violation of his due process rights.” The fact that the university repeatedly told Plaintiff that an earlier version of the conduct policy, which used different procedures, was in effect also potentially constitutes a due process violation.

Plaintiff’s breach of contract claim was dismissed on grounds of Eleventh Amendment immunity.