480 F.Supp.3d 1157
D. Colo.2020Background:
- Plaintiff Girolamo Messeri was expelled by the University of Colorado Boulder in Nov. 2016 after OIEC investigators concluded he engaged in non‑consensual sexual activity with “Jane Doe.”
- OIEC investigators reviewed CUPD audio/video and interviews, attended some CUPD interviews, prepared a Written Evidence Summary (WES), and issued a Final Investigation Report applying the preponderance standard; Messeri and counsel submitted written responses to the WES.
- OIEC’s Standing Review Committee reviewed and signed off on the investigation on the same day; Executive Director Valerie Simons imposed permanent expulsion and exclusion from campus.
- Messeri sued the Chancellor (official capacity) asserting procedural and substantive due process violations and seeking damages and removal of the expulsion from his records.
- The University moved for summary judgment; the court granted the motion in part and denied it in part, allowing claims based on certain procedural defects (e.g., no neutral hearing, no live cross‑examination, nondisclosure of a key witness) to proceed, while dismissing other theories.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to a neutral hearing | Messeri: no hearing before a neutral decisionmaker; credibility issues required one | Univ: investigation and written responses provided ample opportunity to be heard | MSJ denied — claim survives (hearing before neutral decisionmaker required under Mathews) |
| Cross‑examination | Messeri: no method to question witnesses or meaningfully test credibility | Univ: written responses to WES were sufficient; Mathews does not require live questioning | MSJ denied — claim survives (some form of live questioning/cross‑examination required) |
| Independent OIEC interview of complainant | Messeri: OIEC should have interviewed Jane Doe independently | Univ: investigators reviewed CUPD interviews and attended some; no showing additional interview would help | MSJ granted — claim dismissed (no due process violation shown) |
| Evidentiary standard (preponderance vs. clear and convincing) | Messeri: clear and convincing required given severity of sanction | Univ: preponderance is appropriate; higher standard would burden university and risk under‑sanctioning | MSJ granted — claim dismissed (preponderance constitutionally permissible) |
| Withholding identity of W1 (key witness) | Messeri: nondisclosure prevented investigation and private investigator interviews | Univ: no constitutional right to all discovery in administrative proceedings | MSJ denied — claim survives (nondisclosure here could violate due process) |
| Standing Review Committee process | Messeri: same‑day signoff was a rubber stamp and sham review | Univ: committee had access to file and reviewed report; no evidence they failed to consider materials | MSJ granted — claim dismissed (no factual support of sham review) |
| Right to appeal | Messeri: denied appeal rights; Director’s review was inadequate/biased and not disclosed | Univ: Director’s discretionary review existed and Messeri did not pursue it; no constitutional right to appeal | MSJ granted — claim dismissed (no independent constitutional right to appeal) |
| Alleged investigator/committee bias (trauma‑informed training; committee disclosure) | Messeri: trauma‑informed methods and committee composition show bias against accused | Univ: training and committee membership do not show actual bias; declarations deny pressure | MSJ granted — claim dismissed (no substantial evidence of actual bias) |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (establishes three‑factor balancing test for required process)
- Goss v. Lopez, 419 U.S. 565 (U.S. 1975) (students have significant interest in avoiding exclusion from education)
- Davis v. Alaska, 415 U.S. 308 (U.S. 1974) (cross‑examination as principal means to test witness credibility)
- Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) (due process may require live questioning in campus sexual‑misconduct cases)
- Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019) (some real‑time cross‑examination required in disciplinary proceedings)
- Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504 (10th Cir. 1998) (impartial tribunal requirement and standards for proving bias)
- Addington v. Texas, 441 U.S. 418 (U.S. 1979) (clear and convincing standard required only in particular high‑interest proceedings)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (heightened proof required when fundamental rights are at stake)
- Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (U.S. 1990) (context for heightened evidentiary standards)
- Plummer v. Univ. of Houston, 860 F.3d 767 (5th Cir. 2017) (university’s interest in campus safety relevant to process and burden choices)
- Maryland v. Craig, 497 U.S. 836 (U.S. 1990) (permitting alternatives to face‑to‑face testimony where necessary to protect witnesses)
- Flaim v. Med. Coll. of Ohio, 418 F.3d 629 (6th Cir. 2005) (limits on required disclosure in student disciplinary contexts)