Campus Due Process Litigation Tracker

Plummer v. University of Houston, 860 F.3d 767 (5th Cir. 2017)

School type: Public
State: Texas
Federal Circuit: Fifth
Decision primarily favorable to: University
Stage of litigation: Motion to dismiss
Keywords: Cross-examination, Due process, Title IX

Ryan McConnell, a student at the University of Houston, met a female UH student at a local bar and later engaged in sexual activity in his dorm room. McConnell’s then-girlfriend (now-wife), Natalie Plummer, went to his room and found the two of them intoxicated, naked, and unconscious on the floor. Plummer took photos and video of the female student in which McConnell was shown groping the female student with Plummer urging him on (the Dorm Room Video). Plummer took a second video of the female student in which Plummer led her, naked, to the dorm elevator and left her there (the Elevator Video). The female student was discovered by other students, transported to a hospital, and an investigation was opened after a medical examination indicated that she had likely been sexually assaulted.

When the videos emerged, Plummer and McConnell were both charged with sexual misconduct. They both retained counsel, who represented them in the proceedings, responded to the charges against them, and went with them to meetings. Normal university procedures allowed for cross-examination via written questions, but Plummer and McConnell’s attorneys were allowed to cross-examine all witnesses directly. The female student did not appear or testify at the hearing. McConnell was found guilty of nonconsensual sexual activity (due to the accuser’s intoxication level), and Plummer was found guilty of recording the activity and making lecherous comments. Their appeals were denied, and they filed suit against the university.

Plaintiffs argued that they weren’t given adequate notice of adverse evidence, that written cross-examination was insufficient, that the investigator’s multiple roles created conflicts, and that they were held to the 2013 UH standard even though the incident happened in 2011. The court held that they received adequate due process, in large part because of the overwhelming video evidence of their guilt. For example, cross-examining the female student, who remembered nothing of the incident, would not have added anything to the proceeding. The court took pains to limits its holding to the facts of this particular case, noting:

Again, we emphasize that we do not suggest a constitutional “floor” for state university disciplinary procedures. Whether a state university has provided an individual student sufficient process is a fact-intensive inquiry and the procedures required to satisfy due process will necessarily vary depending on the particular circumstances of each case.

The court also upheld the district court’s dismissal of Plaintiffs’ Title IX claims, noting that “[t]he University’s discipline was predicated on what the two charged students did, and during the discipline process they—a male and a female—were treated equally. There is no sound basis for an inference of gender bias.”