43 F.4th 522
5th Cir.2022Background
- In 2015 Texas A&M students Austin Van Overdam and Hannah Shaw had a single sexual encounter involving three sequential acts; Shaw later complained that the second act (sodomy) was nonconsensual while the first was consensual and the third occurred from fear.
- Texas A&M held a live disciplinary hearing: both parties attended, Van Overdam had counsel, the panel heard Shaw live, but Van Overdam and his attorney were not allowed to directly cross-examine Shaw; they could submit unlimited written questions to the panel to ask Shaw subject to relevancy/harassment review.
- Van Overdam sought to introduce evidence regarding Shaw’s mental health and prior sexual history; the panel excluded that evidence and limited certain testimony under usual evidentiary/rape-shield principles.
- The panel found Van Overdam responsible for the alleged nonconsensual sodomy (Act 2) but not responsible for the third act (Act 3); he was suspended one semester and later graduated.
- Van Overdam sued under Title IX (erroneous outcome and selective enforcement theories) and § 1983 for deprivation of due process; the district court dismissed his erroneous outcome and due process claims but allowed selective enforcement to proceed and certified interlocutory appeal under 28 U.S.C. § 1292(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper pleading standard for Title IX challenge to a university disciplinary decision | Van Overdam urged adoption of Purdue’s text-based “plausible inference” standard (do alleged facts, if true, raise a plausible inference of sex discrimination). | Texas A&M argued prior Fifth Circuit Yusuf framework controls (erroneous outcome/selective enforcement categories). | Court harmonized Yusuf and Purdue: apply the Title IX text test (plausible inference) consistent with Yusuf categories; applied it and held Van Overdam failed to plausibly allege sex discrimination. |
| Whether due process requires attorney-led direct cross-examination of accusers in university discipline | Van Overdam argued constitutional due process entitles accused students to have their attorneys directly cross-examine accusers in real time. | Texas A&M argued no constitutional right to attorney-led direct cross-examination and that its procedure (live testimony + panel questioning + unlimited written questions submitted by the accused) satisfied due process. | Court held due process does not require attorney-led direct cross-examination; permitting live testimony, representation, calling witnesses, and submitting unlimited questions to a neutral panel satisfies due process in this context. |
Key Cases Cited
- Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994) (articulated erroneous-outcome and selective-enforcement frameworks for Title IX challenges to campus discipline)
- Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019) (endorsed asking whether alleged facts plausibly infer sex discrimination under Title IX rather than rigid doctrinal tests)
- Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204 (5th Cir. 2019) (applied Yusuf framework in Fifth Circuit Title IX disciplinary context)
- Walsh v. Hodge, 975 F.3d 475 (5th Cir. 2020) (held some opportunity for real-time questioning is required in university proceedings; endorsed panel questioning with submission of questions as constitutionally adequate in certain circumstances)
- Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019) (recognized that panel questioning can satisfy due process and discussed need for real-time cross-examination opportunities)