J. LEE v. THE UNIVERSITY OF NEW MEXICO, a public university, THE BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO, individually and in their official capacities, ROBERT G. FRANK, individually and in his official capacity, LAURA VELE BUCHS, individually and in her official capacity, HEATHER COWAN, individually and in her official capacity, FRANCIE CORDOVA, individually and in her official capacity, MEGAN CHIBANGA, individually and in her official capacity
Case 1:17-cv-01230-JB-LF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
Filed 03/30/20
Document 79
FACTUAL BACKGROUND
The Court takes its facts from the Complaint. The Court accepts the factual allegations as true for the purposes of a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(“Twombly“). The Court does not, however, accept as true the legal conclusions within the Complaint. See Ashcroft v. Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.“).
1. UNM Student Misconduct Policies and Procedures.
UNM has two separate disciplinary procedures, one procedure for students accused of sexual misconduct and another procedure for students accused of non-sexual misconduct. See Lee v. Univ. of N.M., D-202-CV-2017-07891 (Second Judicial Court, County of Bernalillo, State of New Mexico), filed in federal court on December 14, 2017 (Doc. 1-1)(“Complaint“) ¶¶ 33-35, at 5-6. In matters of non-sexual misconduct, UNM‘s “Student Grievance Procedure” provides that a Student Conduct Officer must conduct and prepare an investigation report, which includes
For allegations of sexual misconduct, students are subject to an alternate procedure, the “Discrimination Claims Procedure,” which is “fundamentally different, and less formal.” Complaint ¶¶ 35-36, at 6. Under this procedure, UNM‘s Office of Equal Opportunity (“OEO“) assigns an investigator to interview the complaining student, draft a statement of the allegations, and then provide the statement to the accused student. See Complaint ¶¶ 39-41, at 7. The OEO investigator has complete discretion to determine the investigation‘s scope, and to identify and to analyze the relevant documents and witnesses necessary to determine whether a policy violation occurred. See Complaint ¶¶ 42-43, at 7-8. During the investigation that follows, the accused student is neither aware of the identified witnesses, nor provided an opportunity to test the credibility and weight of the evidence that OEO receives. See Complaint ¶¶ 44-46, at 8.
If OEO finds it “more likely than not,” that is, “by a mere preponderance of the evidence,” that the accused student committed an act of sexual violence or misconduct in violation of UNM policy, UNM OEO issues a Preliminary Letter of Determination (“PLD“). Complaint ¶ 47, at 8. In response to the PLD, the accused student is permitted to provide only “new” information that the OEO has not previously considered, although the accused student “does not know, specifically,
The only recourse an accused student has to contest the OEO‘s Probable Cause3 finding is to appeal to the Office of the UNM President and UNM‘s Board of Regents, who have “discretionary authority” to review OEO final determinations in “extraordinary cases.” Complaint ¶ 52, at 9. If the UNM President or Board of Regents refuse the accused student‘s request to appeal the FLD, then the UNM OEO‘s “Probable Cause” decision is referred to the Dean of Student‘s Office for a sanctions determination. Complaint ¶ 53, at 9.
In cases of alleged sexual misconduct, the only hearing that occurs is a sanctions hearing held after OEO issues a FLD. See Complaint ¶ 54, at 9. Any additional evidence presented at the sanctions hearing may go only to “determine the sanction to be imposed.” Complaint ¶ 54, at 9. During the sanctions hearing, a Student Conduct Officer or the Student Conduct Committee assumes that the FLD is correct and does not determine anew whether a policy violation occurred. See Complaint ¶ 55, at 10. Although UNM allows an accused student to have an advisor present at the sanctions proceeding, the advisor is “not authorized to speak on behalf of the individual they are advising.” Complaint ¶ 56, at 10.
Lee is a former graduate student at UNM, where he pursued Ph.D. studies from August, 2012, to May, 2016. See Complaint ¶ 21, at 4. Before his enrollment at UNM, Lee signed a graduate program application that included policies and procedures that Lee and UNM agreed to follow in disciplinary actions. See Complaint ¶ 25, at 4; Application Questions and Answers (dated January 31, 2012), filed June 29, 2018 (Doc. 30-1)(“Application“). The Complaint alleges that the Application “identified and explained the agreement between UNM and Plaintiff and included the policies and procedures the parties shall follow in disciplinary actions.” Complaint ¶ 25, at 4. The Application‘s Question 27 states that, “[i]f I am accepted as a student at the University of New Mexico, I agree to conform and abide by the letter and spirit of all rules, regulations, and procedures of the University.” Application at 15. Lee marked “Yes” in response. Application at 14.
In September, 2015, the UNM OEO received a report from the UNM Police Department regarding an alleged sexual incident involving Lee and C.H. (“Complainant“). Complaint ¶ 62, at 11. Following the allegation of sexual misconduct, UNM informed Lee that he was “banned” from campus, although UNM permitted Lee to continue his graduate studies until July, 2016. Complaint ¶ 63, at 11. Within several days of the allegation, Cordova, the UNM OEO Director, and Cowan, the UNM Title IX Coordinator, met with Lee to “discuss OEO processes and procedure, [Lee‘s] rights and responsibilities, confidentiality and the University‘s anti-retaliation policy.” Complaint ¶¶ 13-14, 65, at 3, 12. The following day, the Complainant provided a “verbal complaint” to Cordova and Buchs, who took notes and then transcribed a summary of the conversation, which became the Complainant‘s statement. Complaint ¶¶ 12, 67-68, at 3, 12.
Buchs interviewed Lee regarding the allegations in Complainant‘s Statement. See Complaint ¶ 72, at 13. During the interview, and in written statements to the OEO and Buchs, Lee denied -- and continues to deny -- the sexual misconduct accusations. See Complaint ¶ 74, at 13. Lee identified a number of inconsistencies in Complainant‘s statement, denied that any physical contact between himself and Complainant was non-consensual, and presented documents, including screenshots of text messages from Complainant to Lee, which contradicted Complainant‘s allegations. See Complaint ¶¶ 72-76, at 13.
The OEO determined that Lee violated the sexual misconduct policy and issued a PLD. See Complaint ¶ 77, at 14. The PLD states that the OEO will “move forward with the [Probable Cause] determinations unless additional new factual information c[ould] be provided. The additional information must reveal facts not yet discovered during the course of the investigation.” Complaint ¶ 100, at 16. Because Buchs disallowed Lee‘s involvement in the investigative process, he “was not wholly certain what was, or was not, discovered by the investigation.” Complaint ¶ 101, at 17. Therefore, Lee did not know what defendants would consider “new evidence.” Complaint ¶ 101, at 17. Likewise, Lee did not know whether there were “new facts” to glean from witnesses, because he did not know with whom Buchs had spoken. Complaint ¶ 101, at 17.
Lee appealed the OEO‘s findings to the UNM President‘s Office and the UNM Board of Regents. See Complaint ¶ 110, at 18. In his denial of Lee‘s request, Frank, the UNM President, stated that his office would review the underlying investigation only when compelled by “extraordinary circumstances,” and that there were “sufficient facts in the record to support OEO‘s decision.” Complaint ¶¶ 110-12, at 18. The Board of Regents did not respond to Lee‘s request for an appeal of the OEO‘s findings. See Complaint ¶ 105, at 18.
The OEO subsequently referred Lee‘s case to the Dean of Students Office to begin the sanctions process. See Complaint ¶¶ 114-15, at 18-19. Chibanga, the Student Conduct Officer for UNM‘s Office of the Dean of Students, advised Lee of his options: he could refuse to hold a sanctions hearing, have a “formal” sanctions hearing in front of a panel, or a have an “administrative” sanctions hearing over which Chibanga alone would preside. Complaint ¶¶ 15, 115, at 3, 19. Chibanga cautioned Lee that, at the sanctions hearing, he could neither present evidence nor speak with his attorney, but that his attorney could “pass notes” or “whisper” in his ear. Complaint ¶ 117, at 19. Chibanga further advised Lee that the sanctions hearing “was not ‘an evidentiary hearing,’ and that the ‘Probable Cause’ finding ‘was not up for debate’ and would not be ‘challenged.‘” Complaint ¶ 117, at 19. Thus informed, Lee chose an administrative hearing.
In July, 2016, Chibanga issued a sanctions letter that expelled Lee from UNM. See Complaint ¶ 123, at 20. As justification for the sanction, the letter identified the PLD, the FLD, and Lee‘s answers regarding underage drinking. See Complaint ¶¶ 119-123, at 19-20. Based on representations from Chibanga, Cowan, and Buchs, Lee believed that the sanction “calculus” would not include the allegations of underage drinking; underage drinking was not listed as a violation of policy in either the PLD or the FLD. Complaint ¶¶ 120-23, at 20. Lee appealed the sanctions decision to Frank and the Board of Regents, and both found that the facts supported Lee‘s expulsion. See Complaint ¶ 124, at 20. Lee has not “set foot” on the UNM campus since August 23, 2016, and he has not completed his doctoral program. Complaint ¶ 106, at 17-18. Because of the expulsion, Lee suffered damages to his academic and professional reputation, and he “will likely be unable to be admitted to any other university given his status.” Complaint ¶¶ 132-33, at 21.
PROCEDURAL BACKGROUND
Lee filed suit in the Second Judicial District Court, County of Bernalillo, State of New Mexico, alleging in Count I that UNM‘s sexual misconduct investigation procedures violate his federal and state constitutional rights to due process as protected by the
a reversal of the outcome and findings of the UNM investigation, expungement of [his] educational records reflecting the improper discipline/sanction and production of verification of such expungement . . . , prohibiting UNM from disclosing [Lee‘s] education records reflecting discipline during the pendency of this action, and readmittance to UNM to complete his graduate program.
Complaint ¶ 174, at 28-29. In Count III, Lee requests a determination pursuant to the
In Count IV, Lee pleads a claim for violation of
In Count V, Lee pleads a claim against UNM for breach of contract. See Complaint ¶¶ 213-217, at 33-34. Lee alleges that he had “the reasonable expectation[] that UNM would fairly and without bias implement and enforce the provisions and [policies] set forth in its official publications.” Complaint ¶ 214, at 34. Lee then alleges that UNM breached its agreements by “failing to abide by its policies and procedures,” “failing to conduct a fair and impartial investigation and hearing,” “failing to provide [a] fair and impartial sanctioning process,” “failing to provide adequate due process, to include the right to confront witnesses and one‘s accuser,” “failing to adequately and properly consider and weigh evidence,” and “failing to allow adequate representation during the investigative and sanctioning processes.” Complaint ¶ 215, at 34. In Count VI, Lee pleads a claim for breach of the implied covenant of good faith and fair dealing. See Complaint ¶¶ 218-222, at 34-35. Lee alleges that his contracts with UNM “implicitly guaranteed that any investigatory and disciplinary proceedings would be conducted with basic fairness.” Complaint ¶ 219, at 35. He further alleges that “UNM acted in bad faith when it failed to provide adequate due process to safeguard [his] interests in his education.” Complaint ¶ 220, at 35. The Defendants removed the case to federal court based on federal question jurisdiction. See Notice of Removal ¶ 4, at 2, filed December 14, 2016 (Doc. 1)(“Notice of Removal“).
The Defendants move to dismiss Lee‘s claims for violation of his federal and state constitutional rights to due process. See Due Process Motion at 2. At the outset, the Defendants argue that “the federal constitutional claim for damages against UNM fails as a matter of law because UNM is ‘considered an arm of the state of New Mexico’ and therefore not a ‘person’ within the meaning of
The Defendants next assert that the Individual Defendants are entitled to qualified immunity from Lee‘s
The Defendants argue that UNM‘s alleged failure to follow its own procedures does not
The Defendants next turn to Lee‘s claim for damages for violation of the
Finally, the Defendants argue that the Court should dismiss Lee‘s requests for injunctive and declaratory relief for alleged violations of the federal constitution, “because UNM is still not a ‘person’ that can be sued under
2. Lee‘s Response to the Due Process Motion.
Lee responds that the Defendants’ arguments fail, because “receiving limited ‘notice’ and a limited ‘opportunity to be heard’ do not equate to adequate due process.” Response to Defendants’ Motion to Dismiss Plaintiff‘s Due Process Claims at 2, filed May 25, 2018 (Doc. 24)(“Due Process Response“). Lee argues that “fundamental fairness requires that a person receive enough notice and opportunity to be heard to give them the opportunity to adequately and fairly protect the interest,” and that his expulsion for sexual misconduct with nothing more than an investigation was “fundamentally unfair.” Due Process Response at 2. Lee further contends that the Defendants’ Due Process Memo. focuses only on “very limited and specific factual
Lee asserts that he has pled sufficient facts to state a due process claim against the Individual Defendants under
Lee also argues that the Individual Defendants cannot assert -- in their official capacities -- an immunity defense to his claims for prospective injunctive relief. See Due Process Response at 8. As support, Lee also invokes “the Ex Parte Young5 exception,” which he argues entitles him, as an expelled student, “to seek prospective relief against UNM to protect against continuing constitutional violations.” Due Process Response at 9 (citing Trant v. Oklahoma, 754 F.3d 1158, 1172 (10th Cir. 2014)(“[A] state may waive immunity from suit while retaining immunity from liability for monetary damages.“)).
Lee also contends that the named Individual Defendants have the authority to provide the relief that he seeks, and he notes that the “Defendants . . . do not deny that the current President of UNM has authority to expunge records.” Due Process Response at 9. Lee further asserts that the “Defendants disregard the fact that ‘when officials sued in [their official] capacity in federal court
Lee argues that, contrary to the Defendants’ assertion, he has adequately pled a Due Process violation to support a
Turning to his liberty interest, Lee reasserts that “his reputation has been harmed because his educational [record], which was impeccable, now shows an expulsion for alleged sexual misconduct.” Due Process Response at 12-13. Moreover, Lee continues, “[a]s recognized by the [Supreme] Court in Goss [v. Lopez, 419 U.S. 565, 574-75 (1975)], any notations on educational records identifying misconduct or expulsion clearly deprive a student of liberty interests protected by the
Lee then argues that the Individual Defendants are not entitled to qualified immunity from claims against them in their individual capacities, because the weight of Tenth Circuit precedent supports Lee‘s claim that his liberty and property rights were clearly established before UNM expelled him without adequate process. See Due Process Response at 22 (citing Lee v. Kan. State Univ., No. 12-CV-2638-JAR-DJW, 2013 WL 2476702, at *7 (D. Kan. June 7, 2013)(Robinson, J.)(“[T]he constitutional right to due process before a student can be deprived of her property interest in her continued graduate education . . . is clearly established, and a reasonable official would have known that the conduct alleged by Plaintiff was unconstitutional“)).
3. The Defendants’ Reply in Support of the Motion.
The Defendants reply that, in his Response, Lee “concedes that he cannot pursue a claim for damages under
The Defendants next reply to Lee‘s application of the three-part, Mathews v. Eldridge balancing test by first alleging that Lee “cannot truly deny that UNM has a strong interest in ‘maintaining a safe learning environment for all of its students, while preserving its limited administrative resources.‘” Due Process Reply at 4 (quoting Plummer v. Univ. of Houston, 860 F.3d 767, 773 (5th Cir. 2017)). The Defendants argue that existing Supreme Court and Tenth Circuit precedent does not require that a student “receive more robust process than [Lee] allegedly received prior to his expulsion.” Due Process Reply at 5. Specifically, the Defendants assert that the Tenth Circuit has rejected Lee‘s alleged right to a “formalistic notice requirement,” which includes written notice of the charged policy violations, and has held that oral and “constructive notice,” i.e., notice of the underlying allegations, is all that the Constitution requires. Due Process Reply at 6 (citing Watson ex rel. Watson v. Beckel, 242 F.3d at 1241). Turning tо Lee‘s assertion that UNM denied him an adequate opportunity to respond, the Defendants counter that there is a “paucity” of existing precedent to inform schools of what they must do in student disciplinary proceedings. Due Process Reply at 7. The Defendants note that the only clarity from the Supreme
The Defendants reassert that the
4. The Title IX Memo.
The Defendants move to dismiss Lee‘s claims for violation of
The Defendants next assert that Lee‘s claims against UNM fail, because he has not alleged sufficient facts that, if true, would establish gender bias. See Title IX Memo. at 8. While the
5. The Contract Memo.
The Defendants move to dismiss Lee‘s claims for breach of contract, and breach of the implied covenant of good faith and fair dealing. See Contract Motion at 1-2. In support of the Contract Motion, the Defendants filed the Memorandum Brief in Support of Defendant‘s Motion to Dismiss Plaintiff‘s Contract Claims, filed December 21, 2017 (Doc. 11)(“Contract Memo.“). The Defendants first argue that Lee‘s implied contract claims against UNM fail as a matter of law, because UNM is entitled to sovereign immunity. See Contract Memo at 10. They turn first to Lee‘s breach-of-contract claim, and assert that, under
The Defendants then address Lee‘s claim for breach of the implied covenant of good faith and fair dealing. See Contract Memo. at 12. They assert that New Mexico appellate courts have held on multiple occasions that
Alternatively, the Defendants argue that Lee‘s claims fail as a matter of law, because the policies at issue do not create any contractual obligations. See Contract Memo. at 13. They assert that an implied contract may be created where an employee handbook creates a “‘reasonable expectation’ that the employer will follow specified procedures,” Contract Memo. at 14 (quoting Hartbarger v. Frank Paxton Co., 1993-NMSC-029, ¶ 14, 857 P.2d 776, 783), and discuss cases that apply this principle, see Contract Memo. at 14-16 (citing Sanchez v. The New Mexican, 1987-NMSC-059, ¶ 12, 738 P.3d 1321, 1324; Ruegsegger v. Bd. of Regents of W.N.M. Univ., 2007-NMCA-030, 154 P.3d 681; Stieber v. J. Publ‘n Co., 1995-NMCA-068, 901 P.3d 201). The Defendants then discuss a previous Court opinion, Gerald v. Locksley, 785 F. Supp. 2d 1074, 1084 (D.N.M 2011)(Browning, J.), which concludes that the plaintiff‘s contract claims failed as a matter of law, because the UNM‘s Whistleblower and Campus Violence Provisions “‘do not contain language specific enough to raise a reasonable expectation that UNM would provide a particular response to [the plaintiff‘s] grievance.‘” Contract Memo. at 19 (quoting Gerald v. Locksley, 785 F. Supp. 2d at 1145).
The Defendants argue that, like the cases cited above, the policies and procedures which Lee cites for his breach-of-contract claim are “merely declarations of UNM‘s general approach to reports of student sexual misconduct and do not create any contractual obligations on the part of UNM toward students accused of sexual misconduct.” Contract Memo. at 19. They argue that these documents’ “aspirational goals” do not create a breach-of-contract basis. Contract Memo. at 19 (citing Stieber v. J. Publ‘n Co., 1995-NMCA-068, 901 P.3d 201; Clayton v. Vanguard Car Rental U.S.A., Inc., 761 F. Supp. 2d 1210, 1277-80 (D.N.M. 2010)(Browning, J.)). The
Finally, the Defendants argue that Lee‘s claim for breach of implied covenant of good faith and fair dealing fails, because of the absence of an underlying contract. See Contract Memo. at 22. They argue that, “[i]n the absence of an underlying contractual relationship, there is no freestanding cause of action for breach of the implied covenant of good faith and fair dealing and such a claim must be dismissed as a matter of law.” Contract Memo. at 22.
6. The Contract Response.
Lee responds to the Contract Motion. See Plaintiff‘s Response in Opposition to Defendants’ Motion to Dismiss Plaintiff‘s Contract Claims, filed May 29, 2018 (Doc. 25)(“Contract Response“). Lee argues first that his breach-of-contract claim is not barred, because he has a valid written contract with UNM; he filled out an application to attend graduate school, and the application “incorporated language regarding compliance with UNM‘s policies and guidelines.” Contract Response at 5. Lee argues that, because he signed a document referencing these policies and procedures, they are “incorporated into the agreement between the parties.” Contract Response at 6.
Lee then states that, although New Mexico courts have not expanded the implied breach of contract beyond the employment context, “the facts surrounding the case at bar supports expansion of the implied contract doctrine.” Contract Response at 9. He argues that the Court should expand the doctrine, because UNM wrote the contract unilaterally, see Contract Response at 9 (citing Campos de Suenos, Ltd. v. Cty. of Bernalillo, 2001-NMCA-043, ¶ 27, 28 P.3d at 1112), and because “New Mexico has created a statutory right to due process through its statutory entitlement to a public university upon payment of tuition,” Contract Response at 9 (citing Gossett v. Okla. ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1181 (10th Cir. 2001); Harris v. Blake, 798 F.2d at 422; Gaspar v. Bruton, 513 F.2d 843, 850 (10th Cir. 1975); Brown v. Univ. of Kan., 16 F. Supp. 3d 1275, 1288 (D. Kan. 2014)(Melgren, J.); Lee v. Kan. State Univ., 2013 WL 2476702 at *6; Siblerud v. Colo. State Bd. of Agric., 896 F. Supp. 1506, 1512-13 (D. Colo. 1995)(Kane, J.); Assenov v. Univ. of Utah, 553 F. Supp. 2d 1319, 1327 (D. Utah 2008)(Campbell, C.J.)). Finally, Lee argues that UNM breached its duty of good faith and fair dealing. See Contract Response at 10-11. He asserts that the Complaint states that
Defendant UNM failed to properly train investigators on how to investigate sexual misconduct cases, failed to properly staff UNM‘s Office of Equal Opportunity, failed to conduct appropriate evidence gathering, failed to conduct proper credibility determinations of witnesses, and failed to properly conduct an investigation. These allegations establish a claim on the basis that Defendants deprived Plaintiff of the benefit of the bargain through evasion of the spirit of the bargain, lack of diligence or slacking off, willful rendering of imperfect performance, or abuse of a power to specify terms.
Contract Response at 11.
7. The Contract Reply.
The Defendants argue in reply to the Contract Response. See Reply Brief in Support of Defendants’ Motion to Dismiss Plaintiff‘s Contract Claims, filed June 29, 2018 (Doc. 30)(“Contract Reply“). The Defendants first argue against Lee‘s express contract claim and assert that, “[e]ven if the Application created an explicit written contract, it does not bind UNM to comply with its own policies and procedures.” Contract Reply at 3. The Defendants cite similar language in Ruegsegger v. Board of Regents of Western New Mexico University, 2007-NMCA-030, 154 P.3d 681, and assert that the “Plaintiff‘s contract claim based on UNM‘s policies and procedures is not salvaged merely because his school application mentioned his obligation to comply with UNM policies and procedures.” Contract Reply at 3 (emphasis in original). The Defendants bolster their argument by citing cases from the Court of Appeals of New Mexico that have “repeatedly rejected attempts by plaintiffs to show a waiver of the immunity from contract claims afforded by Section
8. The Hearing.
The Court held a hearing on the Due Process Motion, the Title IX Motion, and the Contract Motion on July 3, 2018. See Clerk‘s Minutes at 1, filed July 3, 2018 (Doc. 35). The Court first took up the Title IX Motion and asked Lee whether, because he did not file a response, the Court should grant the Title IX Motion. See Draft Transcript of Hearing at 2:7-14 (taken July 3, 2018)(Court)(“Tr.“).6 Lee responded that “[w]e‘re not necessarily contesting the Title IX claim.
a. Argument Regarding the Due Process Motion.
The Defendants then argued the Due Process Motion. See Tr. at 3:12 (Smith). They asserted that briefing had narrowed the issue to “whether plaintiff has overcome the individual defendants’ assertion of qualified immunity.” Tr. at 5:22-24 (Smith). After laying out their argument‘s outline, the Defendants “t[ook] a step back” and discussed Lee‘s
With this issue clarified, the Court directed the Defendants to address the “violation prong of the . . . alleged due process violation.” Tr. at 14:19-21 (Court). The Defendants discussed the
The Defendants then argued that Lee received notice and a meaningful opportunity to respond, which are the two requirements “[a]t the heart of due process.” Tr. at 26:8 (Smith). The Defendants stated that they “don‘t think there is any real strong argument that the plaintiff was entitled [to] greater notice than what was provided” in Watson ex rel. Watson v. Beckel, Tr. at 27:12-14 (Smith), and that the “allegations in the complaint show that he received a meaningful
The Defendants then argued that no Tenth Circuit case has held that a student facing expulsion for sexual misconduct has a Due Process right to confront his or her accuser. See Tr. at 30:5-14 (Smith). The Defendants noted that Watson ex rel. Watson v. Beckel similarly was an expulsion case that did not require cross-examination and, while it concerned high-school students, the Defendants do not think this fact made a difference. See Tr. at 30:15-32:12 (Smith, Court). They also stated that, under Mathews v. Eldridge‘s balancing test, UNM has a strong interest “in protecting its students who are alleged to have been victimized by sexual assault . . . from further trauma as a result of cross-examination.” Tr. at 33:8-12 (Smith). They also noted that the United States Department of Education‘s “Dear Colleague”7 letter discourages universities from allowing cross-examination in sexual misconduct proceedings. Tr. at 33:21 (Smith); id. at 33:20-24 (Smith).
Lee then responded. See Tr. at 34:19 (Crow). Lee discussed Goss v. Lopez, and argued that it suggests that students are entitled to counsel, witnesses, and cross-examination when facing suspensions longer than ten days. See Tr. at 36:7-21 (Crow). He then discussed Watson ex rel. Watson v. Beckel, and argued that it suggests that accused students are entitled to cross-examination. See Tr. at 38:10-25 (Crow). Lee argued that his notice is far less than the notice that the Tenth Circuit approved in Watson ex rel. Watson v. Beckel. See Tr. at 38:25-39:22 (Crow). The Court expressed its concern that Lee was asking for more notice than a defendant receives in
Lee then discussed Siblerud v. Colorado State Board of Agriculture. See Tr. at 48:23-50:1 (Crow). The Court asked Lee how he could distinguish Watson ex rel. Watson v. Beckel, which cites other Courts of Appeals that reject the argument that due process requires cross-examination. See Tr. at 50:6-12 (Court). Lee responded that Watson ex rel. Watson v. Beckel, is a “unique” case, because there was no need to cross-examine the witness, Tr. at 51:1 (Crow), and asserted: “I don‘t think Watson says you can‘t have cross-examination[.] I think it says we didn‘t need it here,” Tr. at 52:1-3 (Crow). Lee argued that “this situation is: we never had a hearing, so we don‘t know at this point what the totality of the circumstances would give us as far as whether or not there was adequate due process.” Tr. at 52:25-53:4 (Crow). The Court asked for Lee‘s response to the Defendants’ argument that Lee chose the least formal hearing, see Tr. аt 53:5-9 (Court), and Lee stated that “the question isn‘t whether the process that he chose was right or wrong, the question is whether or not it was adequate,” Tr. at 53:13-15 (Crow).
The Court then asked the Defendants about the three notice flaws which Lee identified earlier, see Tr. at 62:19-23 (Court), and whether it troubled them that Lee did not have notice that he could be expelled, see Tr. at 63:13-17 (Court). The Defendants stated that the Tenth Circuit has not said that the notice must include notice of potential consequences. See Tr. at 63:21-64:4 (Smith). The Defendants said that it is “important that neither the Supreme Court nor the Tenth Circuit nor any case that I‘m aware of” has held that a student is entitled to notice of expulsion, Tr. at 66:12-13 (Smith), and that notice is solely about getting a meaningful opportunity to respond, see Tr. at 66:14-24 (Smith). The Defendants also noted that the UNM policies on which Lee relies for his contract claims “specifically spell out that expulsion is a potential consequence of a finding of sexual misconduct.” Tr. at 67:17-19 (Smith). Regarding the underage drinking accusation, the Defendants assert that, as in Watson ex rel. Watson v. Beckel, there are an “unlimited number of
Lee responded that the defendant in Watson ex rel. Watson v. Beckel lacked standing to request more extensive procedures, because he did not demonstrate that he would be subject to future disciplinary procedures. See Tr. at 73:24-22 (Crow). Lee also noted that the fact that the school in Watson ex rel. Watson v. Beckel was a military institute was important to the Tenth Circuit, because students and parents often pick these schools for their disciplinary systems, see Tr. at 74:23-76:1 (Crow), although later the Defendants argued that this point concerns an Equal Protection Clause argument whether there was a rational basis for treating military schools differently, see Tr. at 84:10-85:9 (Smith). Lee also argued that the Tenth Circuit found notice was not necessary in Watson ex rel. Watson v. Beckel, because the defendant had already received “a full-fledged hearing.” Tr. at 76:7 (Crow). Lee cited Goldberg v. Kelly, 397 U.S. 254, 269 (1970), and argued that “cross-examination is critical,” Tr. at 77:24 (Crow), as “a matter of fundamental fairness,” Tr. at 77:20-21 (Crow), in cases where students could be expelled.
Lee then argued that the law is clearly established that “at a minimum a hearing is required.” Tr. at 78:10 (Crow). See id. at 79:17 (Crow). He stated that Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978), most supports his case. See Tr. at 79:25-80:1 (Crow)(citing Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. at 88-90). In addition
The Defendants then argued in response and first noted that Siblerud v. Colorado State Board of Agriculture, is not a Tenth Circuit or Supreme Court case, see Tr. 85:14-15 (Smith), and that numerous cases they cite in their brief have held that students are not entitled to the procedures Lee seeks, see Tr. at 85:18-86:6 (Smith). The Defendants also cited Wilk v. St. Vrain Valley School District, 2017 WL 3190443, *8 (D. Colo. July 27, 2017)(Matsch, J.), which notes that there is little law describing the procedures required in these situations. See Tr. at 87:10-88:2 (Smith). The Defendants concluded that “I think it‘s pretty clear that this area is evolving quickly, rapidly, and there is certainly no clearly established law from either [] the Supreme Court or the Tenth Circuit.” Tr. at 88:7-10 (Smith). As for whether Lee had a property interest, the Defendants conceded that there is some Tenth Circuit caselaw regarding property interests in state university attendance and declined to argue the issue further. See Tr. at 88:24-89:21 (Smith).
The Defendants then addressed Lee‘s claims based on the
The Defendants then argued in support of the Contract Motion. See Tr. at 95:8 (Smith). They asserted that New Mexico courts have allowed suits based on implied-in-fact contracts to overcome sovereign immunity only for employment contracts. See Tr. at 96:12-91:1 (Smith). The Defendants then argued that Lee‘s UNM Application imposed no contractual obligations on UNM. See Tr. at 97:1-99:12 (Smith)(citing Avalos v. Bd. of N.M. State Univ., 2017-NMCA-082, 406 P.3d 551). Next, the Defendants argued that sovereign immunity also bars Lee‘s breach of the implied covenant of good faith and fair dealing. See Tr. at 99:13-100:21 (Smith)(citing Martinez v. Romero, 2012 WL 13076174; Hydro Conduit Corp. v. Kemble, 1990-NMSC-061, 793 P.2d 855).
The Defendants argued alternatively that the policies and procedures at issue do not create any contractual obligations, because “New Mexico appellate courts have long upheld the dismissal of implied contract claims that are based on general guidelines for operation as opposed to specific promissory language.” Tr. at 101:2-6 (Smith). See id. at 101:6-102:11 (Smith)(discussing Ruegsegger v. Bd. of Regents of W.N.M. Univ., 2007-NMCA-030, 154 P.3d 681); Tr. at 102:11-103:13 (Smith)(discussing Gerald v. Locksley, 785 F. Supp. 2d 1074). They argued that the language at issue here is “no more promissory than the policies” in the cited case‘s language. Tr. at 103:15 (Smith). See id. at 103:13-103:25 (Smith). The Defendants also stated that it was important to note that federal law requires UNM to adopt policies and procedures for these circumstances, and that, in an analogous circumstance, the Court concluded that policies adopted to comply with federal law did not create an implied contract. See Tr. at 104:19-106:6 (Smith)(discussing Clayton v. Vanguard Car Rental U.S.A., Inc.). The Defendants concluded by stating that, if Lee‘s claim for breach of contract fails, then his claim for breach of the good faith
Lee responded after recess and argued that Ruegsegger v. Board of Regents of Western New Mexico University‘s facts are not “fundamentally different from the situation we have here.” Tr. at 108:4-5 (Crow). Lee then directed the Court to specific language in § 4.4 of UNM‘s Student Grievance Process which he argued creates a contract. See Tr. at 108:19-109:9 (Crow). Lee argued that, “when the application states that you‘re going to follow the policies and procedures and then in turn it identifies very specific detailed policies and procedures, that is the type of case that the [Ruegsegger] case applies to.” Tr. at 109:17-22 (Crow). The language, Lee argued, “is almost identical to “[Ruegsegger].” Tr. at 110:14-15 (Crow). Lee then distinguished Avalos v. Board of New Mexico State University as providing guidelines rather than contractually guaranteed rights. See Tr. at 111:4-19 (Crow).
The Defendants responded that, if the Court extended Lee‘s logic, students could potentially turn small grievances into breach of contract claims in federal court. See Tr. at 114:2-20 (Smith). They concluded by stating that “if the New Mexico appellate courts have been reluctant to recognize breach of contract claimants, I just don‘t think that‘s a road that the New Mexico Supreme Court or the Court of Appeals is willing to go down,” Tr. at 115:12-16 (Smith). As the hearing ended, the Court asked whether it could analyze the Due Process “clearly established” prong without deciding the constitutional issue, Tr. at 118:10 (Court), and the Defendants stated that it could not, and that the Court would have to decide whether there was a Due Process violation to resolve Lee‘s injunctive claims, see Tr. at 117:17-118:22 (Court, Smith).
The Court issued an Order disposing of the Due Process Motion, the Title IX Motion and the Contract Motion. See Order, filed September 20, 2018 (Doc. 36)(“Sept. 2018 Order”). In the Order, the Court concluded that Lee “alleged facts sufficient to state a plausible
that preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript. That UNM provides an evidentiary hearing in cases of alleged nonsexual misconduct but not in cases of alleged sexual misconduct supports Lee’s claim that the process he received was constitutionally inadequate. In addition, Lee did not receive notice that he faced sаnctions for allegations related to underage drinking until his sanctions hearing, when it was too late to prepare an adequate defense. The Court concludes, however, that Lee cannot successfully sue Defendants for damages pursuant to
§ 1983 , because (i) UNM is not a “person” under§ 1983 ; and (ii) given that the contours of Lee’s due process rights were not clearly established, the Individual Defendants are entitled to qualified immunity. The Court also concludes that the Defendants are entitled to governmental immunity under theNew Mexico Tort Claims Act, NMSA 1978, § 41-4 , so Lee cannot properly sue the Defendants for damages for violation of the Constitution of the State of New Mexico. The Court concludes that the UNM policies and procedures for students accused of sexual misconduct are guidelines for operation and lack specific promissory language necessary to create contractual obligations, so Lee cannot properly sue Defendants for breach of contract or breach of the implied covenant of good faith and fair dealing. At the hearing, Lee conceded his claims pursuant toTitle IX , and the Court dismissed them at the time. The Court nevertheless finds that Lee’sTitle IX claims are not pled with sufficient specificity to infer that UNM treated Lee differently on account of his gender.
Sept. 2018 Order at 3. The Court dismissed Lee’s claims for damages against UNM, the Board of Regents of the University of New Mexico, Frank, Buchs, Cowan, Cordova, and Chibanga. See
10. The May 6, 2019, Rule 16 Scheduling Conference.
The Court held a scheduling conference pursuant to
11. The May 2019 Order.
The Court amended its Sept. 2018 Order in May, 2019. See Amended Order, filed May 30, 2019 (“Amended Order”). The only change the Court made was to remove the sentence: “Moreover, the Court concludes that preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant
12. The August 13, 2019 Email.
The Court received an email on August 13, 2019, from William Kidder, a research associate at UCLA’s Civil Rights Project. See Email from William Kidder to Judge Browning (dated Aug. 13, 2019), filed August 27, 2019 (Doc. 59)(“Email”). The email read, in its entirety:
I noticed Judge Browning’s unpublished ruling in Lee v. University of New Mexico (Sept. 2018) in which he concluded “that preponderance of the evidence is not the proper standard for disciplinary investigations” such as campus
Title IX matters. I have had no contact with either party in this case, and my intent in this email is to simply to share my new research article in the peer-reviewed Journal of College and University Law that looks broadly at the standard of evidence inTitle IX campus proceedings as well as other civil rights and administrative contexts including physician misconduct license cases and research misconduct cases linked to federal grants: https://jcul.law.rutgers.edu/category//journal-articles/ Thank you for your consideration.
Email at 1.
LAW REGARDING RULE 12(b)(6)
A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555.
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
“When a party presents matters outside of the pleadings for consideration, as a general rule ‘the court must either exclude the material or treat the motion as one for summary judgment.’” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322; (ii) “documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); and (iii) “matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and a television episode on a
In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants “supported their motion with numerous documents, and the district court cited portions of those motions in granting the [motion to dismiss].” Id. at 1186. The Tenth Circuit held that “[s]uch reliance was improper” and that, even if “the district court did not err initially in reviewing the materials, the
The Court previously has ruled that, when a plaintiff references and summarizes the
LAW REGARDING § 1983 LIABILITY
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
1. Color of State Law.
“Under Section 1983, liability attaches only to conduct occurring ‘under color of law.’” Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). The under-color-of-state-law requirement is a “jurisdictional requisite for a
In the public-employee context, the Tenth Circuit has directed that, while “‘state employment is generally sufficient to render the defendant a state actor . . . [,]’ at the same time, it is ‘well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.’” Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmonson Oil Co., 457 U.S. at 935-36 n.18; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)). Thus, “before conduct may be fairly attributed to the state because it constitutes action ‘under color of state law,’ there must be ‘a real nexus’ between the employee’s use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant.” Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a case depends on the circumstances:
The under color of law determination rarely depends on a single, easily identifiable fact, such as the officer’s attire, the location of the act, or whether or not the officer acts in accordance with his or her duty. Instead one must examine “the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.”
David v. City & Cty. of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996)(internal citations omitted)(quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)).
Government actors may be liable for the constitutional violations that another actor committed, if the actors “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal connection” between the government actor’s conduct and a plaintiff’s constitutional deprivations. Trask v. Franco, 446 F.3d at 1046. The Tenth Circuit has explained that
The Tenth Circuit has found liability for those defendants who proximately caused an injury alleged under
Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense by the illegal entry.” Id. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d 1068, 1071 (2d Cir. 1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir. 1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 . . . (1989).
Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the
Suppose that three police officers go to a suspect’s house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect’s conduct would constitute a “superseding” cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer’s liability. See id. § 440.
Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, “[f]oreseeable intervening forces are within the scope of the original risk, and . . . will not supersede the defendant’s responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting William
the reasonable foreseeability of an intervening act’s occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.
Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).
3. Supervisory Liability.
The Tenth Circuit has held that supervisors are not liable under
The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, 2011 WL 7444745, at *25-26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010)). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is: “Because vicarious liability is inapplicable to
Whatever else can be said about Iqbal, and certainly much can be said, we conclude the following basis of
§ 1983 liability survived it and ultimately resolves this case:§ 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights . . . secured by the Constitution . . . .”
614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal “does not purport to overrule existing Supreme Court precedent,” but it stated that “Iqbal may very well have abrogated
A plaintiff may . . . succeed in a
§ 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.
Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)). The Tenth Circuit noted, however: “We do not mean to imply that these are distinct analytical prongs, never to be intertwined.” Dodds v. Richardson, 614 F.3d at 1200 n.8. Relying on the Supreme Court’s opinion in Board of County Commissioners v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:
Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right. In any
§ 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.
Dodds v. Richardson, 614 F.3d at 1200 n.8 (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. at 404-05)(internal quotation marks omitted). The Tenth Circuit noted that “[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law.” Dodds v. Richardson, 614 F.3d at 1200 n.8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove “an ‘affirmative’ link . . . between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy . . . -- express or otherwise -- showing their authorization or approval of such misconduct.’” Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)).
4. Municipal Liability.
A municipality will not be held liable under
LAW REGARDING QUALIFIED IMMUNITY
Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). “Qualified immunity protects federаl and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’” Roybal v. City of Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1329834, at *10 (D.N.M. April 28, 2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The Supreme Court deems it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under
Under
That means a court can often avoid ruling on the plaintiff’s claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff’s claim, even though novel or otherwise unsettled, in fact has merit.
Camreta v. Greene, 563 U.S. 692, 705 (2011).
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. at 818). Qualified immunity also shields officers who have “reasonable, but mistaken beliefs,” and operates to protect officers from the sometimes “‘hazy border[s]’” of the law. Saucier v. Katz, 533 U.S. 194, 206 (2001)(quoting Priester v. Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000)). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). See also Pueblo of Pojoaque v. New Mexico, 214 F. Supp. 3d 1028, 1079 (D.N.M. 2016)(Browning, J.).
1. Procedural Approach to Qualified Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” 555 U.S. at 236. The Supreme Court also noted that, while no longer mandatory, Saucier v. Katz’ protocol -- by which a court first decides if the defendant’s actions violated the Constitution, and then the court determines if the right violated was clearly established -- will often
The Supreme Court recognizes seven circumstances where district courts “should address only”12 the clearly established prong of the qualified immunity analysis: when (i) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (ii) “it appears that the question will soon be decided by a higher court”; (iii) deciding the constitutional question requires “an uncertain interpretation of state law”; (iv) “qualified immunity is asserted at the pleading stage,” and “the precise factual basis for
While the Court must faithfully follow the Tenth Circuit’s decisions and opinions, the Court is troubled by this statement and the recent trend of the Supreme Court’s hesitancy in
§ 1983 actions to address constitutional violations. A Reconstruction Congress, after the Civil War, passed§ 1983 to provide a civil remedy for constitutional violations. See Mitchum v. Foster, 407 U.S. 225, 238-39 (1972). In Mitchum v. Foster, the Supreme Court explained:Section 1983 was originally § 1 of the Civil Rights Act of 1871 . . . and was enacted for the express purpose of “enforc(ing) the Provisions of the
Fourteenth Amendment .” The predecessor of§ 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment.407 U.S. at 238-39. Congress did not say it would remedy only violations of “clearly established” law, but that
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 . The Supreme Court established the qualified immunity defense in Pierson v. Ray, 386 U.S. 547 (1967), and held that officials were not liable for constitutional violations where they reasonably believed that their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub. L. 313, 329 (2010). The Supreme Court first introduced the “clearly established” prong in reference to an officer’s good faith and held that a compensatory award would only be appropriate if an officer “acted with such an impermissible motivation or with such disregard of the [individual’s] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” Wood v. Strickland, 420 U.S. 308, 322 (1975). In Harlow v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly established prong became a part of the qualified immunity test. See 457 U.S. at 818 (“We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights.”). It seems ironic that the federal courts would restrict a congressionally mandated remedy for constitutional violations -- presumably the rights of innocent people -- and discourage case law development on the civil side -- and restrict case law development to motions to suppress, which reward only the guilty and is a judicially created, rather than legislatively created, remedy. Commentators have noted that, “[o]ver the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in” exclusionary rule litigation in a criminal case, habeas corpus challenges, and civil litigation under
Kerns v. Bd. of Comm’rs, 888 F. Supp. 2d 1176, 1224 n.36 (D.N.M. 2012)(Browning, J.), abrogated on other grounds as recognized by Ysasi v. Brown, No. 13-0183, 2014 WL 936835, at *9 n.24 (D.N.M. Feb. 28, 2014)(Browning, J.). See Richard E. Myers,
To determine whether a right was clearly established, a court must consider whether the right was sufficiently clear that a reasonable government employee would understand that what he or she did violated a right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). “A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and ‘unquestioned.’” Lobozzo v. Colo. Dep’t of Corr., 429 F. App’x 707, 710 (10th Cir. 2011)(unpublished)(quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)).14
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d at 923. “In determining whether the right was ‘clearly established,’ the court assesses the objective legal
The Supreme Court has clarified that qualified immunity’s clearly established prong is a very high burden for the plaintiff: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. at 741. “In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate.’” Reichle v. Howards, 556 U.S. at 664 (quoting Ashcroft v. al-Kidd, 563 U.S. at 741). “The operation of this standard, however, depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. at 639. “The general proposition, for example, that an unreasonable search or seizure violates the
“[A] case on point isn’t required if the impropriety of the defendant’s conduct is clear from
Although the Tenth Circuit has recognized a sliding scale for qualified immunity’s clearly established inquiry, see Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)(“We have therefore adopted a sliding scale to determine when law is clearly established.”), the Tenth Circuit has since walked back its holding that a sliding-scale is the appropriate analysis, see Aldaba v. Pickens, 844 F.3d 870, 876 (10th Cir. 2016)(“Aldaba II”). In Aldaba II, the Tenth Circuit reconsidered its ruling from Aldaba v. Pickens, 777 F.3d 1148 (10th Cir. 2015)(“Aldaba I”) that officers were entitled to qualified immunity after the Supreme Court vacated its decision in light of Mullenix v. Luna, 136 S. Ct. 305 (2015)(per curiam). In concluding that they had previously erred in Aldaba I, the Tenth Circuit determined:
We erred . . . by relying on excessive-force cases markedly different from this one. Although we cited Graham v. Connor, 490 U.S. 386 (1989) to lead off our clearly-established-law discussion, we did not just repeat its general rule and conclude that the officers’ conduct had violated it. Instead, we turned to our circuit’s sliding scale approach measuring degrees of egregiousness in affirming the denial of qualified immunity. We also relied on several cases resolving excessive-force claims. But none of those cases remotely involved a situation as here.
Aldaba II, 844 F.3d at 876. The Tenth Circuit further noted that its sliding-scale approach may
To show clearly established law, the Hope Court did not require earlier cases with “fundamentally similar” facts, noting that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 741[]. This calls to mind our sliding-scale approach measuring the egregiousness of conduct. See Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012). But the Supreme Court has vacated our opinion here and remanded for us to reconsider our opinion in view of Mullenix, which reversed the Fifth Circuit after finding that the cases it relied on were “simply too factually distinct to speak clearly to the specific circumstances here.” 136 S. Ct. at 312. We also note that the majority opinion in Mullenix does not cite Hope v. Pelzer, 536 U.S. 730, [] (2002). As can happen over time, the Supreme Court might be emphasizing different portions of its earlier decisions.
Aldaba II, 844 F.3d at 874 n.1. Since Aldaba II, the Supreme Court has reversed, per curiam, another Tenth Circuit qualified immunity decision. See White v. Pauly, 137 S. Ct. at 551. In concluding that police officers were entitled to qualified immunity, the Supreme Court emphasized: “As this Court explained decades ago, the clearly established law must be ‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. at 640). With that principle in mind, the Supreme Court explained that the Tenth Circuit “panel majority misunderstood the ‘clearly established’ analysis: It failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the
Factually identical or highly similar factual cases are not, however, the way the real world works. Many cases have so many facts that are unlikely to ever occur again in a significantly similar way. See York v. City of Las Cruces, 523 F.3d 1205, 1212 (10th Cir. 2008)(“However, [the clearly established prong] does not mean that there must be a published case involving identical facts; otherwise we would be required to find qualified immunity wherever we have a new fact pattern.”). The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day-to-day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. It is far more likely that, in their training and continuing education, police officers are taught general principles, and, in the intense atmosphere of an arrest, police officers rely on these general principles, rather than engaging in a detailed comparison of their situation with a previous Supreme Court or published Tenth Circuit case. It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?” Thus, when the Supreme Court grounds its clearly established jurisprudence in the language of what a reasonable officer or a “reasonable official” would know, Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018), yet still requires a highly factually analogous case, it has either lost sight of reasonable officer’s experience or it is using that language to mask an intent to create “an absolute shield for law enforcement officers,” Kisela v. Hughes, 138 S. Ct. at 1162 (Sotomayor, J. dissenting). The Court concludes that the Supreme Court is
Moreover, in a day when police shootings and excessive force cases are in the news, there should be a remedy when there is a constitutional violation, and jury trials are the most democratic expression of what police action is reasonable and what action is excessive. If the citizens of New Mexico decide that state actors used excessive force or were deliberately indifferent, the verdict should stand, not be set aside because the parties could not find an indistinguishable Tenth Circuit or Supreme Court decision. Finally, to always decide the clearly established prong first and then to always say that the law is not clearly established could be stunting the development of constitutional law. See Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 6 (2015). And while the Tenth Circuit -- with the exception of now-Justice Gorsuch, see Shannon M. Grammel, Justice Gorsuch on Qualified Immunity, Stan. L. Rev. Online (2017) -- seems to be in agreement with the Court, see, e.g., Casey, 509 F.3d at 1286, the Supreme Court’s per curiam reversals appear to have the Tenth Circuit stepping lightly around qualified immunity’s clearly established prong, see, e.g, Perry v. Durborow, 892 F.3d 1116, 1123-27 (10th Cir. 2018); Aldaba II, 844 F.3d at 874; Rife v. Jefferson, 2018 WL 3660248, at *4-10 (10th Cir. 2018)(unpublished); Malone v. Bd. of Cty. Comm’rs for Cty. of Dona Ana, 2017 WL 3951706, at *3; Brown v. City of Colo. Springs, 2017 WL 4511355, at *8, and willing to reverse district court decisions should the district court conclude that the law is clearly established, but see Matthews v. Bergdorf, 889 F.3d 1136, 1149-50 (10th Cir. 2018)(Baldock, J.)(holding that a child caseworker was not entitled to qualified immunity, because a caseworker would know that “child abuse and
RELEVANT NEW MEXICO LAW REGARDING IMPLIED EMPLOYMENT CONTRACTS
In New Mexico, “an employment contract is for an indefinite period and is terminable at the will of either party unless the contract is supported by consideration beyond the performance of duties and payment of wages or there is an express contractual provision stating otherwise.” Hartbarger v. Frank Paxton Co., 1993-NMSC-029, ¶ 4, 857 P.2d 776, 779 (citation omitted). At will employment relationships “can be terminated by either party at any time for any reason or no reason, without liability.” Hartbarger v. Frank Paxton Co., 1993-NMSC-029, ¶ 4, 857 P.2d at 779. “New Mexico courts have recognized two additional exceptions to the general rule of at-will employment: wrongful discharge in violation of public policy (retaliatory discharge), and an implied contract term that restricts the employer‘s power to discharge.” Hartbarger v. Frank Paxton Co., 1993-NMSC-029, ¶ 4, 857 P.2d at 779.
A promise, or offer, that supports an implied contract might be found in written representations such as an employee handbook, in oral representations, in the conduct of the parties, or in a combination of representations and conduct. See Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶¶ 6-7, 773 P.2d 1231, 1233 (citation omitted). “Under New Mexico law, a personnel manual gives rise to an implied contract if it controlled the employer-employee relationship and an employee could reasonably expect his employer to conform to the procedures it outlined.” See Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶ 7, 773 P.2d at 1234. The question whether an employment relationship has been modified is a question of fact. See Lukoski v. Sandia Indian Mgmt. Co., 1988-NMSC-002, ¶ 7, 748 P.2d 507, 509. “An implied contract is created only where an employer creates a reasonable expectation. The reasonableness of expectations is measured by just how definite, specific, or explicit has been the representation or conduct relied upon.” Hartbarger v. Frank Paxton Co., 1993-NMSC-029, ¶ 4, 857 P.2d at 783. If the alleged employer’s promise is not sufficiently explicit, the courts will not find an implied contract. See Hartbarger v. Frank Paxton Co., 1993-NMSC-029, ¶ 4, 857 P.2d at 780.
“Evidence relevant to this factual decision includes the language used in the personnel manual as well as the employer‘s course of conduct and oral represеntations regarding it. We do not mean to imply that all personnel manual[s] will become part of employment contracts. Employers are certainly free to issue no personnel manual at all or to issue a personnel manual that clearly and conspicuously tells their employees that the manual is not part of the employment contract and that their jobs are terminable at the will of the employer with or without reason. Such actions instill no reasonable expectations of job security and do not give employees any reason to rely on representations in the manual. However, if an employer does choose to issue a policy statement, in a manual or otherwise, and, by its language or by the employer’s actions, encourages reliance thereon, the employer cannot be free to only selectively abide by it. Having announced a policy, the employer may not treat it as illusory.”
Lukoski v. Sandia Indian Mgmt. Co., 1988-NMSC-002, ¶ 7, 748 P.2d at 509-10 (quoting Leikvold v. Valley View Community Hosp., 141 Ariz. 544, 548, 688 P.2d 170, 174 (1984)).
“Whether an employer’s words and conduct support a reasonable expectation on the part of employees that they will be dismissed only in accordance with specified procedures or for specified reasons generally is a question of fact for the jury.” Mealand v. E. N.M. Med. Ctr., 2001-NMCA-089, ¶ 9, 33 P.3d 285, 289. “[B]ecause an employee‘s expectation based on an employer’s words or conduct must meet a certain threshold of objectivity, an employer may be entitled to judgment as a matter of law if the employee‘s expectations are not objectively reasonable.” West v. Wash. Tru Solutions, LLC, 2010-NMCA-001, ¶ 7, 224 P.3d 651, 653. In deciding whether to grant summary judgment, the question is whether a reasonable jury could find that the words and
In Gerald v. Locksley, the Court reviewed whether the plaintiff, an assistant football coach for the University of New Mexico, had a contract that the University’s Athletics Policies and Procedures covered. See 785 F. Supp. 2d at 1140. His contract with UNM stated that his “appointment is governed by applicable policies as stated in the University’s Intercollegiate Policies and Procedures Manual.” 785 F. Supp. 2d at 1140. The Court concluded that the University’s policies and procedures, in comparison to those in Ruegsegger v. Western New Mexico University Board of Regents, were “similarly broad, suggestive, and ‘of a non-promissory nature and merely a declaration of defendant’s general approach.’” 735 F. Supp. 2d at 1143 (quoting Ruegsegger v. Bd. of Regents of W.N.M. Univ., 154 P.3d at 688).
RELEVANT NEW MEXICO LAW REGARDING THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
“Whether express or not, every contract imposes upon the parties a duty of good faith and fair dealing in its performance and enforcement.” Watson Truck & Supply Co., Inc. v. Males, 1990-NMSC-105, ¶12, 801 P.2d 639, 642 (1990)(citations omitted). “Broadly stated, the covenant requires that neither party do anything which will deprive the other of the benefits of the agreement.” Watson Truck & Supply Co. v. Males, 1990-NMSC-105, ¶12, 801 P.2d at 642 (internal quotation marks omitted). An implied covenant of good faith and fair dealing breach
New Mexico has recognized a cause of action for breach of the covenant of good faith and fair dealing sounding in contract. See Bourgeous v. Horizon Healthcare Corp., 1994-NMSC-038, ¶ 17, 872 P.2d at 857. The Supreme Court of New Mexico has imposed restrictions on such claims. See Beaudry v. Farmers Ins. Exch., 2018-NMSC-012, ¶ 23, 412 P.3d 1100, 1107. “Most important is that ‘fully integrated, clear, and unambiguous,’ termination provisions are legally enforceable and override a claimed breach of the covenant of good faith and fair dealing when there is no showing that the provisions of the contract were arrived at by ‘fraud, or unconscionable conduct.’” Beaudry v. Farmers Ins. Exch., 2018-NMSC-012, ¶ 23, 412 P.3d at 1107 (quoting Melnick v. State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, ¶ 17, 749 P.2d 1105, 1110). The Supreme Court of New Mexico also held that tort recovery for breach of the covenant of good faith and fair dealing are not available for reach of the implied сovenant in an employment contract. See Bourgeous v. Horizon Healthcare Corp., 1994-NMSC-038, ¶ 17, 872 P.2d at 857.
ANALYSIS
The Court concludes that Lee has alleged facts that are sufficient to state a claim under the
I. LEE HAS ALLEGED FACTS SUFFICIENT TO STATE A FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS CLAIM .
Lee has alleged facts sufficient to state a claim for relief under the
A. LEE HAS A PROPERTY INTEREST IN HIS CONTINUED ENROLLMENT AT UNM, BUT HIS ALLEGATIONS DO NOT SUPPORT A LIBERTY INTEREST IN HIS REPUTATION.
As the Defendants conceded at the hearing, see Tr. at 88:24-89:21 (Smith), in the Tenth Circuit, “a student’s legitimate entitlement to a public education as a property interest . . . is protected by the Due Process Clause.” Gaspar v. Bruton, 513 F.2d at 850 (concluding that a student in a public vocational-technical school’s nursing program had a protected property interest). The Tenth Circuit’s reasoning is based on Goss v. Lopez, which similarly recognized a property right in public high-school education. See 419 U.S. at 573. The Tenth Circuit and district courts within I have since recognized property rights in graduate education from public universities. See, e.g., Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d at 1181; Harris v. Blake, 798 F.2d at 422. See also Brown v. Univ. of Kan., 16 F. Supp. 3d at 1288; Assenov v. Univ. of Utah, 553 F. Supp. 2d at 1327; Siblerud v. Colo. State Bd. of Agric., 896 F. Supp. at 1512-13. “The actual payment of tuition secures an individual’s claim of entitlement.” Harris v. Blake, 798 F.2d at 422.
UNM is a public institution that the New Mexico legislature established to provide its citizens with post-secondary education. See Due Process Response at 12 (citing
Lee’s allegations do not support a liberty interest in his reputation. The Supreme Court has stated that damage to “reputation alone, apart from some more tangible interest such as employment,” is insufficient to invoke the Due Process Clause’s protections. Paul v. Davis, 424 U.S. 693, 701 (1976). Instead, a plaintiff “must show that as a result of the defamation, ‘a right or status previously recognized by state law was distinctly altered or extinguished.’” Al-Turki v. Tomsic, 926 F.3d 610, 617 (10th Cir. 2019)(quoting Paul v. Davis, 424 U.S. at 711). This is the “stigma-plus” claim sufficient to implicate a constitutionally-protected liberty interest. See Gwinn v. Awmiller, 354 F.3d 1211, 1216, 1223-24 (10th Cir. 2004). The Tenth Circuit recognizes deprivation “of the right to attend school” as the sufficient “something more” to implicate the Due Process Clause. Al-Turki v. Tomsic, 926 F.3d at 617. Nevertheless, Lee has not alleged that the false statements were publicized. See Brown v. Univ. of Kan., 16 F. Supp. 3d at 1288. The closest he gets is his allegation that he “will likely be unable to be admitted to any other university given his status,” of being expelled. Complaint ¶ 132, at 21. See Complaint ¶¶ 129-31, at 21. The Due Process Clause does not protect such situations, where there is no alleged public dissemination of
B. LEE’S ALLEGATIONS PLAUSIBLY SUPPORT A CONCLUSION THAT UNM’S SEXUAL MISCONDUCT INVESTIGATION PROCEDURES DID NOT COMPORT WITH DUE PROCESS.
“The fundamental requisites of due process consist of notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Turney v. FDIC, 18 F.3d 865, 868 (10th Cir. 1994). See Goldberg v. Kelly, 397 U.S. at 267. Lee alleges flaws in both the notice he received and in the procedures surrounding his opportunity to be heard. See Due Process Response at 13-21. Courts analyze three factors to determine procedural adequacy under the Due Process Clause:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. at 335. See Watson ex rel. Watson v. Beckel, 242 F.3d at 1240. The Supreme Court has counseled that “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
1. Taking Lee’s Alleged Facts As True, UNM’s Procedures Surrounding Lee’s Hearing Did Not Comply With Due Process.
Lee argues that he “should have the opportunity to present evidence, and confront witnesses, in front of an impartial tribunal.” Due Process Response at 15 (citing Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 520-21 (10th Cir. 1998). These rights are especially important, he contends, where “very complex and complicated fact issuеs, to include issues of credibility,”
The stakes of Lee’s interest are high. The Defendants concede that Lee has a “substantial” interest in his continued education. Due Process Memo. at 16; Due Process Reply at 4; Tr. at 56:11 (Smith). See Siblerud v. Colo. State Bd. of Agric., 896 F. Supp. at 1516 (“Siblerud faced expulsion; therefore his private interest was exceptionally robust.”). Lee had worked for four years towards his Ph.D. and “only needed to finish his dissertation to receive his doctoral degree.” Complaint ¶ 130, at 21. He alleges that he “will likely be unable to be admitted to any other university given his status.” Complaint ¶ 132, at 21.
UNM’s interests in limiting procedural safeguards related to students’ hearing rights are less evident. The Defendants argue that UNM “has a strong interest in the ‘educational process,’ including maintaining a safe learning environment for all of its students, while preserving its limited administrative resources.” Due Process Memo. at 16 (citing Plummer v. Univ. of Houston, 860 F.3d at 773). See Due Process Reply at 4. In a footnote in their Due Process Reply, the Defendants argue that, even though UNM has a different disciplinary process for non-sexual misconduct cases, they contend that “it cannot be seriously disputed that UNM has a substantial interest in protecting its students from sexual assault and that requiring UNM to provide a quasi
The Court concludes that, on the record before it, UNM has a limited interest in not providing many of the procedural safeguards of which Lee complains. The Court previously has noted that the fact “[t]hat UNM provides an evidentiary hearing in cases of alleged non-sexual misconduct but not in cases of alleged sexual misconduct supports Lee’s claim that the process he received was constitutionally inadequate.” Amended Order at 3. That UNM provides additional protections in other contexts weakens its argument that these same procedures in sexual misconduct proceedings would impose, as UNM argues, a “substantial fiscal and administrative burden.” Due Process Reply at 5 n.2. While holding an evidentiary hearing would impose some burden on UNM, the Defendants have not bolstered their administrative resource argument by distinguishing the burden that UNM already assumes in other proceedings from the burden it hypothetically would face here. Likewise, UNM has little interest in not providing other basic procedural safeguards that Lee alleges harmed him, such as allowing Lee to more fully present his defense, giving Lee notes, recordings, or transcripts of witness interviews, and providing Lee the identity of the witnesses against him.
UNM has a stronger, but not overwhelming, interest in preventing cross-examination of purported victims of sexual assault. The Tenth Circuit has, in several cases, stated that schools have a legitimate interest in providing a safe environment for students. See Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1201 (10th Cir. 2003)(“There is no doubt the School has a legitimate interest in providing a safe environment for students and staff.”); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1364 (10th Cir. 2000)(“[M]aintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures.”); Edwards For and in Behalf of Edwards v. Rees, 883 F.2d 882, 883-84 (10th Cir. 1989). In a case that the Tenth
In this turbulent, sometimes violent, school atmosphere, it is critically important that we protect the anonymity of students who “blow the whistle” on their classmates who engage in drug trafficking and other serious offenses. Without the cloak of anonymity, students who witness criminal activity on school property will be much less likely to notify school authorities, and those who do will be faced with ostracism at best and perhaps physical reprisals.
Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 925 (6th Cir. 1988). Not allowing students to cross-examine those who accuse them of sexual assault encourages victims to report and to stand by their accusations by minimizing the ensuing hassles and burdens. See Sara O’Toole, Note, Campus Sexual Assault Adjudication, Student Due Process, and a Bar on Direct Cross-Examination, 79 Univ. of Pitt. L. Rev. 511, 537-38 (2018). Indeed, the Department of Education’s Dear Colleague letter encourages colleges and universities to limit cross-еxamination in these circumstances. See Tr. at 33:20-24 (Smith); Complaint ¶ 137, at 22; Blair A. Baker, Note, When Campus Sexual Misconduct Policies Violate Due Process Rights, 26 Cornell J.L. & Pub. Pol’y 533, 541 (2017).
If Lee’s allegations are true, several of UNM’s hearing procedures placed Lee at significant risk of erroneous deprivation. According to the Complaint, although Lee denied the allegations and presented evidence against them, see Complaint ¶¶ 74-75, at 13, UNM did not provide Lee the opportunity to cross-examine witnesses, see Complaint ¶ 88, at 15. Lee’s inability to cross-examine his accuser hindered both his ability to present evidence and UNM’s ability to assess witness credibility.
The Supreme Court has stated that “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested,” Davis v. Alaska, 415 U.S. 308, 316, (1974), and called it the “‘greatest legal engine ever invented for the discovery of truth,’” California v. Green, 399 U.S. 149, 158 (1970)(quoting 5 Wigmore, Evidence § 1367 (3d ed. 1940)). In the context of student disciplinary proceedings, “courts appear to recognize that denial of any opportunity to challenge the credibility of adverse witnesses may deprive an accused university student of due process if the witness’s credibility is in issue and the witness is testifying on facts critical to the case.” Marie Reilly, Due Process in Public University Discipline Cases, 120 Penn. St. L. Rev. 1001, 1014 (2016)(emphasis in original). See Haidak v. Univ. Mass.-Amherst, 933 F.3d 56, 59 (1st Cir. 2019)(“[W]e agree with a position taken by the Foundation for Individual Rights in Education, as amicus in support of the appellant -- that due process in the university disciplinary setting requires ‘some opportunity for real-time cross-examination, even if only through a hearing panel.16’”); Doe v. Baum, 903 F.3d 575 (6th Cir. 2018)(“Due process requires cross-examination in circumstances like these . . . .”); Winnick v. Manning, 460 F.2d 545, 550 (2d Cir. 1972)(“[I]f this case had resolved itself into a problem of credibility, cross-examination of witnesses might have been essential to a fair hearing.”); Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 604-05 (D. Mass. 2016)(Saylor, J.). Credibility is an issue here; Lee alleges that he has continued to deny the Complainant’s accusations. See Complaint ¶ 74, at 13. Lee’s opportunity to point out flaws in the Complainant’s statement is not sufficient. See Doe v. Baum,
What is worse, Lee’s only opportunity to present orally was his October 27, 2015, meeting with Buchs. See Complaint ¶ 72, at 13. The Complaint alleges that Buchs and Cordova interviewed Lee’s accuser. Complaint ¶¶ 67-68, at 12. The Complaint also alleges that Cowan -- not just Buchs and Cordova -- determined witness credibility. See Complaint ¶ 81, at 14. See also Complaint ¶ 100, at 16 (alleging that Lee was allowed to present new evidence to Buchs and Cowan). Lee, therefore, alleges that Cowan, Cordova, and Buchs weighed the witnesses’ credibility against each other without necessarily interviewing each witness. In light of Lee’s substantial interest and UNM’s weaker interests, not permitting any cross-examination violates Due Process. See Doe v. Purdue Univ., 928 F.3d 652, 664 (7th Cir. 2019) (“[I]t is particularly concerning that Sermersheim and the committee concluded that Jane was the more credible witness -- in fact, that she was credible at all -- without ever speaking to her in person.”); Doe v. Baum, 903 F.3d at 583 (holding that, for sexual misconduct disciplinary proceedings, Due Process requires the university to have “some form of live questioning in front of the fact-finder” (emphasis in original)).
UNM’s decision to limit the accused’s defense presentation also risks erroneous deprivation. According to the Complaint, Lee gave his side of the story in an interview on October 27, 2019. See Complaint ¶ 72, at 13. Lee alleges that, on October 27, 2015, Buchs interviewed him, and “was accusatory and hostile” towards him. Complaint ¶ 73, at 13. See Complaint ¶ 72, at 13. He also presented a written statement on the same day. See Complaint ¶ 76, at 13. The
One limit UNM imposed on the proceedings does not implicate the Due Process Clause. UNM “allowed counsel for Plaintiff to be present at meetings between Plaintiff and UNM’s OEO, but did not allow counsel to represent Plaintiff at any meeting that he had with the OEO and/or Defendant Vele Buchs.” Complaint ¶ 84, at 15. Lee alleges that at his sanctions hearing he was told that his counsel was not allowed to “present any evidence or information at the sanctions hearing and could not speak at the sanctions hearing but that he could only ‘pass notes’ or ‘whisper’
in Plaintiff’s ear.” Complaint ¶ 117, at 19. This is similar to the procedure a large majority of American universities use. See Tamara Rice Lave, A Critical Look at How Top Colleges and Universities Are Adjudicating Sexual Assault, 71 U. Miami L. Rev. 377, 397 (2017) (noting that thirty-one out of thirty-six surveyed universities permit counsel at student disciplinary hearings as a silent advisor). Courts express less concern about colleges and universities permitting a limited role for attorneys in student disciplinary proceedings, “[b]ecause such hearings are meant to be more relaxed than judicial hearings, due process generally does not require students to have the right to counsel at disciplinary hearings.” Sarah Holman Loy, Reputation & Fair Results: The Case for School-Funded Counsel in College Sexual Assault Disciplinary Proceedings, 48 J.L. & Educ. 349, 355 (2019). Ostenn v. Henley, 13 F.3d 221, 225 (7th Cir. 1993) (Posner, J.). Students therefore do not have a right for counsel to “examine or cross-examine witnesses, to submit and object to documents, to address the tribunal, and otherwise to perform the traditional function of a trial lawyer.” Ostenn v. Henley, 13 F.3d at 225. See Ellen Mossman, Comment, Navigating a Legal Dilemma: A Student’s Right to Legal Counsel in Disciplinary Hearings for Criminal Misbehavior, 160 U. Pa. L. Rev. 585 (2012) (“Although some courts have suggested that students should have limited assistance of counsel in certain situations, most have avoided requiring counsel in routine disciplinary hearings.”). Courts have recognized a few limited exceptions to this general rule; in Flaim v. Medical College of Ohio, the Sixth Circuit stated that a right to counsel “may exist if ‘an attorney presented the University’s case, or [] the hearing [was] subject to complex rules of evidence or procedure.” 418 F.3d at 640 (quoting Jakso v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1252 (E.D. Mich. 1984) (Feikens, C.J.)). Students also have a right to attorney representation when they are subject to parallel criminal proceedings. See Gorman v. Univ. of R.I., 837 F.2d 7, 16 (1st Cir. 1988); Gabrilowitz v. Newman, 582 F.2d 100, 104 (1st Cir. 1978). Lee does not allege that any of these circumstances are present here. See generally Complaint ¶ ¶ 62-133, at 11-21. Accordingly, UNM’s decision to limit attorney participation in its disciplinary process did not violate Lee’s rights under the Due Process Clause.
When balanced against each other, the Mathews v. Eldridge factors set forth above suggest that Lee did not receive a “meaningful opportunity to be heard,” In re C.W. Mining Co., 625 F.3d 1240, 1244 (10th Cir. 2010), because UNM did not allow for any cross-examination in determining credibility, and because UNM’s procedures unreasonably hindered Lee’s ability to present a meaningful defense. That Lee is four years into his Ph.D. studies and has to complete only his dissertation to earn his degree heightens Lee’s already substantial interest in avoiding expulsion, see Complaint ¶ 130, at 21, and the Defendants do not articulate particularly weighty interests in limiting the procedural safeguards they offer students. While UNM has some interest in limiting cross-examination of those who bring sexual misconduct claims, the Court concludes that Lee’s erroneous deprivation risk outweighs UNM’s interests. See Doe v. Baum, 903 F.3d at 584 (holding that, for sexual misconduct disciplinary proceedings at a public university, “if credibility is in dispute and material to the outcome, due process requires cross-examination”); Doe v. Allee, 242 Cal. Rptr. 3d 109, 134 (Ct. App. 2019).
The Court’s conclusion does not mean that Lee has a right personally to confront witnesses. The Court has previously ruled that Maryland v. Craig, 497 U.S. 836 (1990), is still controlling law after Crawford v. Washington, 541 U.S. 36 (2004), see United States v. Sandoval, No. CR 04-2362 JB, 2006 WL 1228953 (D.N.M. March 7, 2006)(Browning, J.), as it held that a five-year-old girl was not required to testify against her father in open court regarding his alleged molestation, because “she will suffer emotional trauma” and “will thus be unable to testify.” 2006 WL 1228953, at *12. Where even a criminal defendant protected by the Confrontation Clause does
2. Adjudicating Student Disciplinary Proceedings Under a Preponderance-of-the-Evidence Standard Does Not Offend Due Process.
Since the 2011 Dear Colleague Letter, courts and commentators have vigorously debated the proper standard of review for campus sexual assault proceedings. See Deborah L. Brake, Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard, 78 Mont. L. Rev. 109, 109 (2017). The Dear Colleague Letter asserts that a clear and convincing standard for these charges is too high and is “‘inconsistent with the standard of proof established for violations of the civil rights laws, and . . . thus not equitable under Title IX.’” Michelle J. Harnik, Note, University Title IX Compliance: A Work in Progress in the Wake of Reform, 19 Nev. L.J. 647, 664 (2018) (quoting the Dear Colleague Letter at 11). At the time, “most universities were
The executive branch has also changed its position. In November 2018, the Department of Education’s Office of Civil Rights issued a notice of proposed rulemaking on proper evidentiary standards. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61462-01 (proposed Nov. 29, 2018). While not entirely repudiating the preponderance standard, the Department of Education proposed to limit its application, and suggested that,
in reaching a determination regarding responsibility, the [University] must apply either the preponderance of the evidence standard or the clear and convincing evidence standard. The recipient may, however, employ the preponderance of the evidence standard only if the recipient uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction. The recipient must also apply the same standard of evidence for complaints against students as it does for complaints against employees, including faculty.
The Supreme Court has held that the clear-and-convincing evidentiary standard applies “when the individual interests at stake in a state proceedings are both ‘particularly important’ and ‘more substantial than mere loss of money.” Santosky v. Kramer, 455 U.S. 745, 756 (1982) (quoting Addington v. Texas, 441 U.S. 418, 424 (1979)). The extra evidentiary burden is necessary to preserve fairness in “government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’” Santosky v. Kramer, 455 U.S. at 756 (quoting Addington v. Texas, 441 U.S. at 425). Within this group of cases, the Supreme Court has recognized deportation hearings, see Woodby v. INS, 385 U.S. 276 (1966), defamation involving a public figure, see Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974), civil confinement proceedings, see Addington v. Texas, 441 U.S. 418, parental rights termination proceedings, see Santosky v. Kramer, 455 U.S. 745, and the withdrawal of life support, see Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261 (1990). In Cooper v. Oklahoma, the Supreme Court struck down an Oklahoma statute that required a criminal defendant to prove his incompetence to stand trial by clear-and-convincing evidence rather than a preponderance of the evidence. See 517 U.S. 348, 369. The Supreme Court reiterated that “the State’s power to regulate procedural burdens [is] subject to proscription under the Due Process Clause if it ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Cooper v. Oklahoma, 517 U.S. at 367 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). The Tenth Circuit has stated that the clear-and-convincing standard “is typically used in civil cases ‘involving allegations of fraud or some other quasi-criminal wrongdoing.’” Century Sur. Co. v. Shayona Inv., LLC, 840 F.3d 1175, 1177 (quoting Addington v. Texas, 441 U.S. at 424). Thus, for example, the Tenth Circuit requires clear-and-convincing evidence to support a motion under rule 60(b)(3) of the Federal Rules of Civil Procedure, see Anderson v. Dep’t of Health and Human Servs., 907 F.2d 936, 952 (10th Cir. 1990), and to prove civil contempt liability, see F.T.C. v. Kuykendall, 371 F.3d 745, 756 (10th Cir. 2004). See also Assman v. Fleming, 159 F.2d 332, 336 (8th Cir. 1947).
In evaluating an evidentiary burden of proof, the Tenth Circuit weighs the three factors that the Supreme Court set forth in Mathews v. Eldridge. See United States v. Weed, 389 F.3d 1060, 1068 (10th Cir. 2004) (concluding that requiring a defendant found not guilty by reason of insanity to prove by clear-and-convincing evidence that his release would not create a substantial risk of harm satisfies due process). Lee’s private liberty interest is, as discussed above, moderate. Lee’s risk of erroneous deprivation is also moderate; heightening the standard of evidence will make it less likely that UNM erroneously sanctions Lee or others similarly situated. See Michael S. Pardo, Second-Order Proof Rules, 61 Fla. L. Rev. 1083, 1085 (2009). The state’s interest in a lower burden of proof, however, is stronger than its interest in foregoing other procedural safeguards. If UNM had to use a clear-and-convincing standard to satisfy due process, it would require UNM to expend more resources investigating and adjudicating cases to satisfy the clear-and-convincing threshold. The heightened standard may also prove difficult and confusing for UNM’s administration to apply. See William C. Kidder, (En)forcing A Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence
Balancing these interests, the Court concludes that due process permits state education institutions such as UNM to adjudicate sexual misconduct disciplinary proceedings according to a preponderance-of-the-evidence standard. In addition to its legitimate efficiency concerns, see Gorman v. Univ. of R.I., 837 F.2d at 14-15 (discussing administrative burdens on universities), UNM has a very strong interest in reaching the correct conclusion as it reviews sexual misconduсt allegations. Lee’s interests in avoiding expulsion or sanction based on a sexual misconduct allegation are significant, but they do not overcome UNM’s interests. This conclusion accords with the balance other courts have struck. See Doe v. Va. Polytechnic Inst. & State Univ., 400 F. Supp. 3d at 501; Doe v. Univ. of Ark-Fayetteville, 2019 WL 1493701, at *10; Doe v. Brandeis University, 177 F. Supp. 3d at 607. Expelling students from a state university for sexual
The Court also concludes that UNM’s strict limits on Lee’s defense presentation and preparation violate Due Process. UNM was required to provide Lee with notes, transcripts, or recordings from witness interviews if any were generated, and an oral report if they were not. See Doe v. Rector & Visitors of George Mason Univ., 149 F. Supp. 3d 602, 619 (E.D. Va. 2016) (Ellis, J.) (concluding that an administrator’s off-the-record meetings with a sexual assault accuser is a “glaring procedural deficienc[y]” and that, “where an accused student is not present during proceedings against him, he should be ‘given . . . an oral or written report on the facts to which each witness testifies.’” (quoting Dixon v. Ala. State Bd. of Educ., 294 F.2d at 159)). The Supreme Court of the United States afforded even the high school students suspended for ten days in Goss v. Lopez more process. See 419 U.S. at 574 (stating that the students were entitled to notice of the charges against them, and, if denied, “an explanation of the evidence the authorities have and an opportunity to present [their] side of the story”). See also Brock v. Roadway Exp., Inc., 481 U.S. 252, 257 (1987) (concluding that failing to provide the accused party in an administrative proceeding with witnesses’ names and the substance of their statements deprived the accused of procedural due process); Doe v. Purdue Univ., 928 F.3d at 663 (“[W]ithholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair”). Further, viewed in light of the Mathews v. Eldridge balancing test, UNM’s limitations
Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.
Goss v. Lopez, 419 U.S. at 580.
3. Taking Lee’s Alleged Facts As True, UNM Provided Lee Inadequate Notice.
Regarding his alleged lack of notice, Lee argues that he “never received adequate, meaningful notice of the allegations or the alleged violation of policy, the severity of the sanction he faced, the policies or procedures that would be followed, or any limitations placed on sexual misconduct findings and hearings.” Due Process Response at 19. At the July 3, 2018, hearing before the Court, Lee cited three specific notice failings: (i) failure to inform him that he faced expulsion for the charges; (ii) raising underage drinking at the sanctions hearing; and (iii) erroneously informing him that he could not bring in any new evidence at the sanctions hearing. See Tr. at 42:15-45:17 (Crow, Court). Lee’s and UNM’s interests are the same as those
Some of Lee’s alleged notice violations do not, however, implicate a serious risk of erroneous deprivation. For example, Lee alleged that UNM failed to inform him that he faced expulsion. See Complaint ¶¶ 116, at 19 (“Defendant Chibanga never advised Plaintiff whether he was facing a possible expulsion, but merely pointed Plaintiff to the possible sanctions, which included everything from a verbal warning to expulsion, dismissal and barring from campus.”); id. ¶ 154a, at 25. UNM had already informed Lee that he was banned from campus, see Complaint ¶ 63, at 11, and Lee knew enough аbout the charges against him to know he potentially faced significant disciplinary action. It is also doubtful that, before holding the sanctioning hearing and reviewing the evidence, Chibanga could provide Lee with more specific information about which sanction he was likely to receive -- let alone which sanction he would receive. Lee also appears to have received adequate notice of the procedures that UNM would follow in its investigation. See Complaint ¶ 65, at 12 (alleging that Cowan met with Lee on September 24, 2015 to discuss the investigation’s processes and procedures, confidentiality, and Lee’s rights and responsibilities). With no risk of erroneous deprivation, the Court concludes that these allegations do not state a claim for violations of Due Process. See Watson ex rel. Watson v. Beckel, 242 F.3d at 1241 (concluding that there was no Due Process violation for an alleged lack of notice where the student would not have benefited from more notice and the burden on the school was “slight”).
Two alleged notice failures, however, raise significant risks of erroneous deprivation. The Defendants’ failure to provide Lee notice that they would raise underage drinking claims at his sanctions hearing prevented him from getting a “‘meaningful opportunity to present’” his case.
The Court concludes that the notice UNM provided at the sanctions hearing violates Lee’s Due Process rights. UNM has provided no interest in either disregarding its own procedures allowing additional evidence related to sanctioning or in not disclosing the conduct on which it intends to base its sanctioning decision. Given Lee’s substantial interest in avoiding expulsion, UNM was required to provide Lee advance notice of all conduct on which it reasonably expected to base its sanctioning decision. See Staples v. City of Milwaukee, 142 F.3d 383, 385-87 (7th Cir. 1998). The hearing’s circumstances do not suggest the exigency was so important or the hearing so informal that UNM could dispense with notice in the name of administrative efficiency. See Goss v. Lopez, 419 U.S. at 582 (“There need be no delay between the time ‘notice’ is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred.”); Edwards For & in Behalf of Edwards v. Rees, 883 F.2d 882, 885 (10th Cir. 1989) (holding that removing a student from class to interrogate him regarding a bomb threat did not offend Due Process). Due Process also required UNM to
C. LEE CANNOT SUCCESSFULLY SUE THE DEFENDANTS FOR DAMAGES, BECAUSE VARIOUS IMMUNITIES PROTECT THEM.
Although Lee has stated a claim for relief under the Due Process Clause, Lee cannot successfully sue the Defendants for damages, because several different immunities protect them. The individual Defendants are entitled to qualified immunity, because Lee’s Due Process rights were not clearly established at the time they were violated. UNM is immunized from suit under
1. The Individual Defendants Are Entitled to Qualified Immunity, Because Lee’s Due Process Rights Were Not Clearly Established.
Qualified immunity protects government officials from personal liability so long as they have not violated a “clearly established” right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity shields officers who have “reasonable, but mistaken beliefs” and operates to protect them from the sometimes “hazy border[s]” of the law. Saucier v. Katz, 533 U.S. 194, 205 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant’s actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009);
Proving that the law was clearly established is a high burden for a plaintiff. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (“A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). There are no Supreme Court or Tenth Circuit opinions clearly delineating the appropriate level of procedural safeguards for students accused of sexual misconduct.
The Supreme Court has, however, addressed due process afforded students in disciplinary proceedings in Goss v. Lopez; in that case, students were suspended from Columbus, Ohio public schools without hearings and argued that this procedure violated due process. See 419 U.S. at 567. The Supreme Court agreed with the students, concluding that “due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” 419 U.S. at 581. The Supreme Court noted that “[t]here need be no delay between the time ‘notice’ is given and the time of the hearing,” and that, although there are exceptions, “as a general rule, notice and hearing should precede removal of the student from school.” 419 U.S. at 582. The Supreme Court also observed that the administrative
The Supreme Court addressed a tangential issue in Board of Curators of University of Missouri v. Horowitz, in which it reviewed the procedural safeguards to which students facing academic dismissal are entitled. The Supreme Court distinguished disciplinary dismissals from academic dismissals, and noted that the Constitution “may call for hearings in connection with the former but not the latter.” 435 U.S. at 87. See id. at 88-89. It observed that even Goss v. Lopez “stopped short of requiring a formal hearing” in a disciplinary setting, 435 U.S. at 89 (emphasis in original), and that whether to dismiss a student for academic reasons was not “readily adapted” to determination via hearing, 435 U.S. at 90. The Supreme Court also noted that Goss v. Lopez concluded that “the value of some form of hearing in a disciplinary context outweighs any harm to the academic environment.” 435 U.S. at 90.
The Tenth Circuit has addressed the procedural safeguards to which students are entitled on several occasions, most notably and thoroughly in Watson ex rel. Watson v. Beckel. See also Gossett v. Okla. Ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1181-82 (10th Cir. 2001); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1363-65 (10th Cir. 2000); Edwards For and in Behalf of Edwards v. Rees, 883 F.2d at 885; Harris v. Blake, 798 F.2d 419, 422-24 (10th Cir. 1986). In Watson ex rel. Watson v. Beckel, the New Mexico Military Institute (“NMMI”) expelled a student after NMMI’s investigation revealed
Here, the precise contours of Lee’s due process rights are not clearly established. The Tenth Circuit has prescribed Mathews v. Eldridge’s balancing test to determine whether procedural safeguards are constitutionally adequate. See Watson ex rel. Watson v. Beckel, 242 F.3d at 1240. This mandate necessarily requires an intensely fact-specific analysis, which limits predictability and doctrinal development. See Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 987 (9th Cir. 1998) (O’Scannlain, J.) (“Justice Brennan lamented the proliferation of so-called ‘balancing tests’ in constitutional jurisprudence, warning that the freewheeling multifactor inquiries would pave the road to ‘doctrinally destructive nihilism.’ Nowhere is Justice Brennan’s observation more apropos than in the realm of qualified immunity, in which ‘clearly established’ law reigns supreme.”). The Tenth Circuit’s one case thoroughly discussing this area of law,
2. Lee Cannot Successfully Sue UNM for Damages, Because it is Not a “Person” Under § 1983 .
The Court also concludes that Lee cannot successfully sue UNM for damages, because it is not a “person” under
The Court concludes that the Defendants are entitled to governmental immunity under the NMTCA. The NMTCA declares that, “governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act.”
II. LEE’S COMPLAINT STATES A CLAIM FOR RELIEF UNDER TITLE IX.
Lee conceded his Title IX claim against UNM in the face of the Defendants’ argument that the Complaint does not allege facts that establish gender bias. See Tr. at 2:18-20 (Crow). Lee did not file a response to the Title IX Motion and made no argument at the hearing. Cf. Doe v. Brandeis Univ., 177 F. Supp. 3d at 593 n.19. Although the Defendants cite several district court opinions
In Doe v. Purdue University, the United States Court of Appeals for the Seventh Circuit reversed a magistrate judge’s ruling that the plaintiff had failed to state a claim under Title IX. See 928 F.3d at 656. The Seventh Circuit noted that, while the defendant “casts his Title IX claim against the backdrop of a 2011 ‘Dear Colleague’ letter from the U.S. Department of Education,” 928 F.3d at 668, “the letter, standing alone, is obviously not enough to get [the defendant] over the plausibility line,” 928 F.3d at 669. Instead, the Seventh Circuit stated that the complaint alleged “facts raising the inference that Purdue acted at least partly on the basis of sex in his particular case.” 928 F.3d at 669. The Seventh Circuit said the “strongest” fact alleged is that the Purdue Title IX coordinator justified her decision by stating that she found the plaintiff’s accuser more credible than the plaintiff -- even though the accuser never spoke with the coordinator and did not even submit a written statement in her own words. 928 F.3d at 669. The Seventh Circuit also noted that the plaintiff alleged that the panel conducting the hearing “appeared to credit [the
In Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018), the Sixth Circuit reversed a district court‘s
The United States Court of Appeals for the Second Circuit reached a similar conclusion in an opinion issued before Lee filed his complaint. See Doe v. Columbia Univ., 831 F.3d 46. As it overturned a district court‘s dismissal of the plaintiff‘s
As outlined above, the Complaint alleges that during the period preceding the disciplinary hearing, there was substantial criticism of the University, both in the student body and in the public media, accusing the University of not taking seriously complaints of female students alleging sexual assault by male students. It alleges further that the University‘s administration was cognizant of, and sensitive to, these criticisms, to the point that the President called a University-wide open meeting with the Dean to discuss the issue. Against this factual background, it is entirely plausible that the University‘s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault.
831 F.3d at 57. In rejecting the district court‘s conclusion that bias in favor of the female “could equally have been -- and more plausibly was -- prompted by lawful, independent goals,” the Second Circuit noted that courts are obliged to “draw reasonable inferences in favor of the sufficiency of the complaint.” 831 F.3d at 57 (emphasis in original). The Second Circuit also concluded that the plaintiff‘s complaint stated a plausible claim of discrimination against Columbia University‘s
Courts of Appeals have not unanimously reversed
Doe alleges events aimed at raising awareness of sexual assault issues and a screening of “The Hunting Ground,” a film about sexual assault, demonstrate an anti-male bias on campus. Doe also points to Columbia sanctioned social media posts titled the “Presence of Yes” which included statements like, “Teach boys that they are not entitled to women‘s bodies” and “Misogyny kills: the sexual entitlement that many men have and the ways in which they objectify women are behind the high rates of sexual violence, abuse, and harassment that women experience.”
933 F.3d at 855. The Seventh Circuit rejected Doe‘s argument that this is sufficient evidence to state a
There is currently a Court of Appeals split regarding the pleading standard for
The Sixth Circuit, meanwhile, has explicitly rejected a lower pleading standard under Swierkiewicz v. Sorema N.A. or McDonnell Douglas. See Doe v. Miami Univ., 882 F.3d at 588-89. The Sixth Circuit declined to alter its Twombly and Ashcroft v. Iqbal-based pleading standard, because its own precedent reconciled Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), differently than the Second Circuit. See Doe v. Miami Univ., 882 F.3d at 589. In Keys v. Humana, Inc., 684 F.3d 605 (6th Cir. 2012), the Sixth Circuit ruled that that Twombly and Ashcroft v. Iqbal still apply to a court‘s assessment of whether “a complaint‘s factual allegations support its legal conclusion,” which is a standard that still “applies to causation in discrimination claims.” Keys v. Humana, Inc., 684 F.3d at 609-10. The United States Court of Appeals for the Ninth Circuit has rejected the Second Circuit‘s reasoning in Doe v. Columbia University. See Austin v. Univ. of Or., 925 F.3d 1133, 1137 (9th Cir. 2019)(“We read the Second Circuit‘s application of the McDonnell Douglas presumption at the pleading stage as contrary to Supreme Court precedent, and we decline to embrace that approach.“). See also Doe v. Princeton Univ., 2019 WL 5491561, at *2 n.3 (3d Cir. Oct. 25, 2019)(unpublished); Doe v. Columbia Coll., Chi., 933 F.3d at 856 (“Doe does not allege the particularized ‘something more’ that is required to survive a motion to dismiss.“); Doe v. Trs. of Bos. Coll., 892 F.3d 67, 90 n.13 (1st Cir. 2018)(“We take no position as to whether such a presumption applies to
The Tenth Circuit applies the McDonnell Douglas burden-shifting framework to
UNM has already faced a similar lawsuit in the District of New Mexico. Chief Judge Armijo dismissed plaintiffs’
The Court agrees that, standing alone, the “Dear Colleague” letter is insufficient to demonstrate that UNM adopted anti-male bias in its disciplinary proceedings. Ruff v. Bd. of Regents of Univ. of N.M., 272 F. Supp. 3d at 1302. It is, nevertheless, “one piece of the puzzle,” that can help state a claim. Doe v. Loyola Univ. Chi., No. 18 CV 7335, 2020 WL 406771, at *4
although evidence of the [Dear Colleague Letter] and external pressure placed on the school to conform with its guidance may provide the plaintiff with “a story about why [the school] might have been motivated to discriminate against males accused of sexual assault,” such evidence is insufficient in itself to support any inference that the school‘s actions in a particular case were motivated at least in part by gender bias.
Lee‘s Complaint alleges more than just the “Dear Colleague” letter contributed to UNM‘s anti-male motivations. In Paragraph 140, Lee states:
Upon information and belief, during the period preceding the actions taken against Plaintiff stated herein, there was substantial criticism that Defendants failed to take seriously complaints of female students alleging sexual assault by male students. In fact, the Department of Justice launched an investigation on December 4, 2014, based on multiple complaints about Defendants’ handling of reports of students of sexual harassment and sexual assault.
Complaint ¶ 140, at 23. Lee specifically alleges here that UNM faced pressure to better respond to female complaints against male students, and not all sexual misconduct complaints against all students. These are similar allegations to those that the Doe v. Columbia University plaintiff made, 831 F.3d at 50-51, and which the Second Circuit held were adequate support for concluding that Columbia‘s administrators were biased, 831 F.3d at 56. Further, unlike in Ruff v. Board of Regents of University of New Mexico, UNM‘s investigation and disciplinary process occurred after the Department of Justice had launched its own investigation into UNM‘s handling of sexual misconduct claims. See 272 F. Supp. 3d at 1297. Taken together, Lee‘s Complaint suggests non-
Lee has also made several factual allegations that indicate the Defendants allowed gender bias to affect Lee‘s disciplinary proceedings. For example, he alleges that UNM failed to follow its own procedures as it adjudicated his case. See Complaint ¶¶ 118-19, at 19; Handbook at 5, 8. Several courts have concluded that failing to follow procedures supports an inference of bias. See Doe v. Columbia Univ., 831 F.3d at 56-57 (identifying failing “to act in accordance with University procedures designed to protect accused students” as an allegation supporting the inference of sex discrimination); Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 766 (D. Md. 2015)(Bredar, J.); Doe v. Loyola Univ. Chi., 2020 WL 406771, at *5. Lee also alleges that the Defendants adopted the Complainants statements as true, “even though the statements were illogical, inconsistent, or contrary to other witnesses,” and ignored “all evidence exculpatory to Plaintiff.” Complaint ¶ 207, at 33. See id. ¶ 75, at 13 (“Plaintiff pointed out a number of inconsistencies between Complainant‘s statement and the events of that evening, denied any allegation that any physical contact between Plaintiff and Complainant was non-consensual, and presented documents, to include screen shots of text messages from Complainant, that contradicted Complainant‘s purported claims.“). Again, Courts have found that similar allegations permit an inference of bias:
The alleged fact that Sessions-Stackhouse, and the panel and the Dean, chose to accept an unsupported accusatory version over Plaintiff‘s, and declined even to explore the testimony of Plaintiff‘s witnesses, if true, gives plausible support to the proposition that they were motivated by bias in discharging their responsibilities to fairly investigate and adjudicate the dispute.
Doe v. Columbia Univ., 831 F.3d at 57. Lee alleges that Buchs was also “accusatory and hostile towards Plaintiff” in the October 27, 2015, interview, another allegation suggesting that the
Drawing all “reasonable inferences in favor of the sufficiency of the complaint,” the Court concludes that Lee‘s Complaint states a claim for relief under
III. LEE CANNOT PROPERLY SUE THE DEFENDANTS FOR BREACH-OF-CONTRACT CLAIMS, BECAUSE UNM‘S POLICIES AND PROCEDURES ARE GUIDELINES AND LACK SPECIFIC PROMISSORY LANGUAGE NECESSARY TO CREATE CONTRACTUAL OBLIGATIONS; BECAUSE UNM FOLLOWED ITS PROCEDURES IN HANDLING LEE‘S DISPUTE; AND BECAUSE SOVEREIGN IMMUNITY BARS THE CLAIMS.
Lee accuses UNM of breaching an express agreement in six ways. See Complaint ¶ 215,
A. UNM‘S POLICIES AND PROCEDURES LACK SPECIFIC PROMISSORY LANGUAGE NECESSARY TO CREATE CONTRACTUAL OBLIGATIONS.
UNM‘s student grievance policies and procedures, The Pathfinder -- UNM‘s Student Handbook, filed December 21, 2017 (Doc. 11-1)(“Handbook“), do not create a contract with Lee or any other student. Lee argues that, because he “signed a document that referenced UNM‘s policies and procedures, those policies and procedures become incorporated into the agreement between the parties. Therefore, the disciplinary procedures become part of the entire valid, written agreement between Plaintiff and Defendants.” Contract Response at 6. Lee also argues that, even if there is not an express contract, he “reasonably expected Defendant to comply with the policies and procedures and would have expected that such policies and procedure related to discipline would be followed by UNM.” Contract Response at 7. In contrast to other New Mexico cases dismissing implied-contract claims, Lee argues that UNM‘s “policies and procedures are very
1. No Express Contract Exists Between Lee and UNM.
First, the Court disagrees with Lee that his Application to UNM creates an express contract binding UNM to follow its Handbook‘s policies and procedures. The Complaint alleges that the Application “identified and explained the agreement between UNM and Plaintiff and included the policies and procedures the parties shall follow in disciplinary actions.” Complaint ¶ 25, at 4. The Application‘s Question 27 states, however, that, “[i]f I am accepted as a student at the University of New Mexico, I agree to conform and abide by the letter and spirit of all rules, regulations, and procedures of the University.” Application at 15. Lee marked “Yes” in response. Application at 14. The Application therefore purports to bind Lee to UNM‘s policies and procedures, but it does not purport to bind UNM and “lack[s] specific contractual terms” suggesting that the parties entered into an express agreement. Sanchez v. The New Mexican, 1987-NMSC-059, ¶ 12, 738 P.2d at 1324. See Hartbarger v. Frank Paxton Co., 1993-NMSC-029, ¶ 7, 857 P.2d at 780 (“Ordinarily, to be legally enforceable, a contract must be factually supported by an offer, an acceptance, consideration, and mutual assent.“). In these circumstances, “federal courts have almost uniformly held that, in the absence of any formal agreement between the student and the college, the terms of the contract are implied.” Kashmiri v. Regents of Univ. of Cal., 67 Cal. Rptr. 3d 635, 649 (Ct. App. 2007)(citing Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998); Ross v. Creighton Univ., 957 F.2d 410, 417 (7th Cir. 1992); Lyons v. Salve Regina Coll., 565 F.2d 200, 202 (1st Cir. 1977); Johnson v. Schmitz, 119 F. Supp. 2d 90, 93 (D. Conn. 2000)(Arterton, J.)). See also Harwood v. Johns Hopkins Univ., 747 A.2d 205, 209 (Md. 2000)(“When a student is duly admitted by a private university . . . there is an implied contract between the student and the
2. No Implied Contract Exists Between Lee and UNM.
While the Supreme Court of New Mexico has not addressed the question, see Ruegsegger v. W.N.M. Univ. Bd. of Regents, 2007-NMCA-030, ¶ 23, 154 P.3d at 686-87, courts in numerous states hold that implied contracts exist between universities and their students, and student handbooks and other published policies -- if specific -- help define these implied contracts. See e.g., Andersen v. Regents of Univ. of Cal., 99 Cal. Rptr. 531, 535 (Ct. App. 1972); Alden v. Georgetown Univ., 734 A.2d 1103, 1111 n.11 (D.C. 1999); John B. Stetson Univ. v. Hunt, 102 So. 637, 640 (Fla. 1924); Sharick v. Se. Univ. of Health Scis., Inc., 780 So. 2d 136, 138 (Fla. Dist. Ct. App. 2000); Yu v. Idaho State Univ., 165 Idaho 313, 444 P.3d at 890; Brody v. Finch Univ. of Health Scis./The Chi. Med. Sch., 698 N.E.2d 257, 265 (Ill. 1998); Amaya v. Brater, 981 N.E.2d 1235, 1240 (Ind. Ct. App. 2013); Ctr. Coll. v. Trzop, 127 S.W.3d 562, 568 (Ky. 2003); Harwood v. Johns Hopkins Univ., 747 A.2d at 209; Schaer v. Brandeis Univ., 735 N.E.2d 373, 378 (Mass. 2000); Univ. of Miss. Med. Ctr. v. Hughes, 765 So. 2d 528, 535 (Miss. 2000); Behrend v. State, 379 N.E.2d 617, 620 (Ohio Ct. App. 1977); Aase v. S.D. Bd. of Regents, 400 N.W. 2d 269, 270 (S.D. 1987); Reynolds v. Sterling Coll., Inc., 750 A.2d 1020, 1022 (Vt. 2000); Marquez v. Univ. of Wash., 648 P.2d 94, 96 (Wash. Ct. App. 1982). But see Montany v. Univ. of New England, 858 F.3d 34, 44 (1st Cir. 2017)(noting an absence of authority under Maine law for a contractual relationship between students and universities); Shaw v. Elon Univ., 400 F. Supp. 3d 360, 366 (M.D.N.C. 2019)(Osteen, J.); Doe v. Marymount Univ., 297 F. Supp. 3d at 587-88 (“Under
Even where the relationship is contractual, however, “a student asserting a breach of contract claim must identify specific terms of the implied contract that were allegedly violated by the college (such as an internal rule, regulation, or code), and failure to do so is fatal to the claim.” Rolph v. Hobart and William Smith Colls., 271 F. Supp. 3d 386, 405-06 (W.D.N.Y. 2017)(Wolford, J.). “Not all terms in a student handbook are enforceable contractual obligations . . . and courts will only enforce terms that are ‘specific and concrete.‘” Knelman v. Middlebury Coll., 898 F. Supp. 697, 709 (D. Vt. 2012)(Reiss, J.)(quoting Reynolds v. Sterling Coll., Inc., 750 A.2d at 1022). “To create contractual rights, however, the terms of the representation must be sufficiently explicit to create a reasonable expectation of an implied contract.” Trujillo v. N. Rio Arriba Elec. Co-op, Inc., 2002-NMSC-004, ¶ 22, 41 P.3d 333, 341-42.
Several New Mexico cases inform the Court‘s analysis whether UNM‘s Handbook creates a sufficiently specific implied contract. In the first, Ruegsegger v. Western New Mexico Board of Regents, 2007-NMCA-030, 154 P.3d 681 (Pickard, J., joined by Fry and Kennedy, JJ.), the Court of Appeals of New Mexico affirmed a district court‘s dismissal of breach-of-contract and breach
The Court of Appeals of New Mexico‘s review of these provisions led it to conclude that the plaintiff “could not reasonably expect, as a matter of law, that Defendants were contractually obligated to perform the investigatory and support services claimed by Plaintiff in her complaint.” 2007-NMCA-030, ¶ 36, 154 P.3d at 689. “[I]nstead of contractually guaranteeing a right to specific types of investigation, support and sanctions,” the Court of Appeals of New Mexico concluded that the handbook‘s provisions “merely provide guidelines for the operation of
The Court of Appeals of New Mexico‘s holding in Ruegsegger v. Western New Mexico Board of Regents is a straightforward application of the Supreme Court of New Mexico‘s caselaw and is therefore a strong indicator of how the Supreme Court of New Mexico would rule on a similar issue. The Supreme Court of New Mexico has, for example, stated that a manual‘s written disclaimers that it is not a contract strongly suggest that reliance on the manual is not reasonable. See Lukoski v. Sandia Indian Mgmt., 1988-NMSC-002, ¶ 7, 748 P.2d 507, 509-10 (quoting Leikvold v. Valley View Cmty. Hosp., 688 P.2d at 174). Manuals must also be reasonably specific before they are considered as part of an implied contract. In Hartbarger v. Frank Paxton Co., for example, the Supreme Court of New Mexico concluded that an employee manual that set forth a list of reasons an employee could be fired did not contractually preclude the employer for firing an employee for a different reason or for any reason at all. See 1993-NMSC-029, ¶ 18, 857 P.2d 776, 784. In supporting this conclusion, the Supreme Court of New Mexico noted that there was no statement in the handbook that its policies reflеcted established procedure, its policies were consistent with at-will employment, and there was no language suggesting either “directly or indirectly” that employees could not be fired at will. 1993-NMSC-029, ¶ 18, 857 P.2d at 784. Likewise, in Trujillo v. Northern Rio Arriba Electric Cooperative, Inc., the Supreme Court of New Mexico declined to find an that implied employment contract existed where a handbook delegated choice of discipline to the company‘s manager, and provided that discipline “may or may not be progressive in terms of one sanction preceding or following another.” 2002-NMSC-004, ¶ 23, 41 P.3d 333, 342. The Supreme Court of New Mexico also concluded that no implied contract based on an employee handbook existed in Sanchez v. The New Mexican. See 1987-NMSC-059, ¶ 1, 738 P.2d at 1322. The newspaper‘s personnel director had testified that the handbook provided suggested guidelines and that managers retained complete discretion in every case, see 1987-NMSC-059, ¶ 7, 738 P.2d at 1323, but the plaintiff argued that the handbook stated “that the Employer would attempt to give an employee who is in danger of discharge ‘repeated warnings,’ and that the Employer would fire an employee without having given such warnings only ‘for cause,‘” 1987-NMSC-059, ¶ 7, 738 P.2d at 1323. On these limited facts -- the opinion does not quote from the handbook itself -- the Supreme Court of New Mexico concluded that the handbook‘s “language is of a non-promissory nature and merely a declaration of defendant‘s general approach to the subject matter discussed.” 1987-NMSC-059, ¶ 12, 738 P.2d at 1324.
In contrast, the Supreme Court of New Mexico has found implied employment contracts in cases where manuals contained extensive specific language. In Newberry v. Allied Stores, Inc., 1989-NMSC-024, 773 P.2d 1231, it stated that, although an employment manual
covered a variety of personnel-type matters, it also included a section on termination, as well as one on rules and regulation, a violation of which was “sufficient grounds for disciplinary actions ranging from a warning to immediate dismissal.” The section on involuntary termination states: “To be discharged as the result of rule infractions, poor performance, or other ‘cause’ is a situation you and only you, control.” This statement suggests that it was T-Bird‘s policy not to terminate employment except for a good reason. Based on the totality of the parties’ relationship and surrounding circumstances, it is clear that the manual controlled the employee-employer relationship and that Newberry could expect T-Bird to conform to the procedures in the policy guide.
Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶ 10, 773 P.2d at 1235 (quoting the defendant‘s policy manual). The Supreme Court of New Mexico also found an implied employment contract in Garcia v. Middle Rio Grande Conservancy District, where the employee handbook “contains provisions relating to most every aspect of an employment relationship, including job description,
The Court has also addressed a similar issue. In Gerald v. Locksley, the Court dismissed an implied contract claim under
The Court concludes that UNM‘s Handbook is not “sufficiently specific, explicit, or mandatory to create a reasonable expectation that UNM would provide a particular response.” Gerald v. Locksley, 785 F. Supp. 2d at 1145 (citing Hartbarger v. Frank Paxton Co., 1993-NMSC-029, 857 P.2d at 783). First, the Handbook‘s preliminary sections suggest that, like the Handbook in Ruegsegger v. Western New Mexico University Board of Regents, the disciplinary procedures are guidelines rather than guarantees to specific rights. For example, in § 1.10, the Handbook
Section 4.1 also states that UNM “may take disciplinary action against a student for a violation of the Student Code of Conduct,” appearing to leave this discretion in UNM‘s hands. Handbook § 4.1, at 4. See Trujillo v. N. Rio Arriba Elec. Co-op, Inc., 2002-NMSC-004, ¶ 23, 41 P.3d at 342 (noting, in concluding that no implied contract existed, that an employee manual‘s language reserved the right to impose discipline within the employer‘s discretion). The Handbook further states that its policies are “Subject to Change Without Notice,” Handbook at 1. Courts reviewing similar language have concluded that a disclaimer such as this one means that it is not reasonable for a student to believe that a handbook represents a contractual agreement, see, e.g., Doe v. Rider Univ., No. 3:16-cv-4882-BRM-TJB, 2020 WL 634172, at *16 (D.N.J. Feb. 4, 2020)(Martinotti, J.); Huang v. Univ. of Pikeville, No. 7:18-CV-11-REW, 2019 WL 5929260, at *11 (E.D. Ky. Nov. 12, 2019)(Wier, J.); George v. Averett Univ. of Danville, Va., No. 4:19-CV-00008, 2019 WL 3310517, at *3 (W.D. Va. July 23, 2019)(Kiser, J.)(“Student Handbooks that permit the school to make unilateral changes at any given time are not binding contractual agreements“); Doe v. Univ. of Chi., No. 16 C 08298, 2017 WL 4163960, at *10 (N.D. Ill. Sept. 20, 2017)(Chang, J.); Doe v. Wash. and Lee Univ., 2015 WL 4647996, at *11 (W.D. Va. Aug. 5, 2015)(Moon, J.); Cook v. Talladega Coll., 908 F. Supp. 2d 1214, 1224 (N.D. Ala. 2012)(Hopkins,
In light of the vast number of courts that have ruled that similar language that it is not specific enough to create a contract between students and universities, the Court concludes that the Supreme Court of New Mexico would not hold that UNM‘s Handbook represents a contract. While UNM Handbook‘s procedures thus provide more rigorous guidance for sexual assault proceedings than the guidelines at issue in Gerald v. Locksley, see Handbook at 7-8, UNM has still reserved considerable flexibility. The Handbook alerts students that UNM may alter its procedures for sexual misconduct sanctions hearings, but it leaves unspecified the modification‘s extent. See Handbook at 8. Section 4.4(C) states that sexual misconduct hearings “will be modified as appropriate” to focus on determining what sanctions to impose. Handbook at 8. Nothing in the Handbook suggests a limit on UNM‘s ability to modify the hearing. See Handbook at 7-8. See Garcia v. Middle Rio Grande Conservancy Dist., 1996-NMSC-029, ¶ 13, 918 P.2d at 11 (“The Personnel Policy is so specific so that employees may reasonably rely on its provisions and may expect that the MRGCD will conform as well.“). Where UNM has not said explicitly it may not always follow disciplinary procedures, suggests that it will make reasonable deviations from these procedures, told students that any procedures can be changed without notice, and reserved the power to modify hearing procedures as it sees fit, students cannot “reasonably expect”
3. The Court Will Dismiss Lee‘s Claims for Breach of the Implied-Covenant-of-Good-Faith-and-Fair Dealing.
The Court will dismiss Lee‘s claim for breach of the implied-covenant-of-good-faith-and-fair-dealing. See Complaint ¶¶ 218-22, at 34-35. As just discussed, Lee fails to allege a contract between himself and UNM. Without a contract, there is no cause of action for breach of the implied-covenant-of-good-faith-and-fair-dealing. See Sanders v. FedEx Ground Package Sys., Inc., 2008-NMSC-040, ¶¶ 7-9, 188 P.3d 1200, 1203; Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, ¶ 53, 68 P.3d 909; Rolph v. Hobart & William Smith Colls., 271 F. Supp. 3d at 406.
B. EVEN IF THERE IS A WRITTEN CONTRACT, LEE‘S ALLEGED FACTS DO NOT SUPPORT A CONCLUSION THAT UNM BREACHED THE CONTRACT.
UNM‘s policies for sexual misconduct disciplinary proceedings are in § 4.4 of the Handbook. Section 4.4(B) states that sexual misconduct allegations “will be referred to the OEO for investigation pursuant to OEO‘s Discrimination19 Claims” and that the OEO will issue a Final Letter of Determination at the end of its investigation. Handbook § 4.4(B), at 7. Section 4.4(B) also grants students the right to appeal “as provided for in OEO‘s Discrimination Claims Procedure.” Handbook § 4.4(B), at 7. The Handbook states that, after the OEO issues its Final Letter, the OEO “will refer the matter to the Dean of Students Office to determine the sanction.” Handbook § 4.4(C), at 7. The Student Conduct Officer then decides which hearing to conduct under §§ 4.2(B)(iii) and (iv), in consultation with the accused, and these hearings are “modified as
While the Court concluded supra that UNM‘s decision to forbid Lee from presenting evidence on the newly raised underage drinking allegations violated Due Process, UNM‘s Handbook anticipates the decision to modify the sanctioning hearing. The Complaint‘s alleged facts show that UNM followed its own process, such that even if the Handbook represents a contract with Lee, UNM did not breach it. The OEO “received a report from the University of New Mexico Police Department regarding an alleged sexual incident involving Plaintiff аnd another person.” Complaint ¶ 62, at 11. On February 25, 2016, the OEO “issued a Final Letter of Determination.” Complaint ¶ 106, at 17. Lee appealed this decision to UNM‘s President and Board of Regents. See Complaint ¶ 110, at 18. Lee was then referred to the UNM Dean of Students for sanctions. See Complaint ¶ 114, at 18. A Dean of Students employee contacted Lee to discuss the sanctions process. See Complaint ¶ 115, at 18. UNM afforded Lee the opportunity to appeal his sanction. See Complaint ¶ 124, at 20. In all respects, UNM followed its own procedures. Based on these facts, even assuming UNM and Lee had a contract based on the Handbook, Lee cannot argue justifiably that UNM breached any express provision of that contract.
C. SOVEREIGN IMMUNITY BARS LEE‘S CONTRACTUAL CLAIMS.
The Supreme Court of New Mexico adopted Judge Bustamante‘s analysis on appeal -- stating that courts should recognize sovereign immunity where parties dispute whether a contract was formed but not dismiss claims based on sovereign immunity when courts had to perform
Lee‘s argument to the contrary is unavailing. He contends that sovereign immunity does not bar his contractual claims, because there is an “imbalance of power” between UNM and its students, which extending the doctrine could help ameliorate. Contract Response at 9 (citing Campos de Suenos, Ltd. v. Cty. of Bernalillo, 2001-NMCA-043, ¶ 27, 28 P.3d at 1112). In
IT IS ORDERED that: (i) the Defendants’ Motion to Dismiss Plaintiff‘s Due Process Claims, filed December 21, 2017 (Doc. 9), is granted in part and denied in part; (ii) the Defendants’ Motion to Dismiss Plaintiff‘s
James O. Browning
UNITED STATES DISTRICT JUDGE
Counsel:
Aryln G. Crow
Alana M. De Young
Adams + Crow Law Firm
Albuquerque, New Mexico
Attorneys for the Plaintiff
Quentin Smith
Leah M. Stevens-Block
Jackson Loman Stanford & Downey, P.C.
Albuquerque, New Mexico
Attorneys for the Defendants
Notes
Nard v. City of Oklahoma City, is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . And we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court finds that Nard v. City of Oklahoma City, Douglas v. Norton, 167 F. App’x 698 (10th Cir. 2006)(unpublished); Johnston v. Hunter Douglas Window Fashions, Inc., 715 F. App’x 827 (10th Cir. 2017)(unpublished); Doe No. 1 v. Boulder Valley School District No. RE-2, 523 F. App’x 514 (10th Cir. 2013)(unpublished); and Lobozzo v. Colorado Deparment of Corrections, 429 F. App’x 707 (10th Cir. 2011), have persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion and Order.
In Kerns v. Bader, the Tenth Circuit reversed the Court’s decision that an officer was not entitled to qualified immunity, noting that the Court “analyzed both aspects of the qualified immunity test before agreeing” with the plaintiff that the qualified immunity defense did not protect the officer. 663 F.3d at 1183. In reversing, the Tenth Circuit stated:
Because we agree with Sheriff White on the latter (clearly established law) question, we reverse without addressing the former (constitutional violation) question. And we pursue this course because doing so allows us to avoid rendering a decision on important and contentious questions of constitutional law with the attendant needless (entirely avoidable) risk of reaching an improvident decision on these vital questions.
663 F.3d at 1183-84. The Tenth Circuit did not analyze whether the officer violated the plaintiff’s constitutional rights and stated that guidance on the particular constitutional issue would be more appropriate in a case not involving qualified immunity: “Neither do we doubt that the scope of the Constitution’s protection for a patient’s hospital records can be adequately decided in future cases where the qualified immunity overlay isn’t in play (e.g., through motions to suppress wrongly seized records or claims for injunctive or declaratory relief).” 663 F.3d at 1187 n.5. On remand, the Court stated: