Nаtalie PLUMMER; Ryan McConnell, Plaintiffs-Appellants v. UNIVERSITY OF HOUSTON; Richard Baker; Richard Walker, Defendants-Appellees
No. 15-20350
United States Court of Appeals, Fifth Circuit.
FILED June 23, 2017 REVISED June 26, 2017
860 F.3d 767
For these reasons, we hold that the only claims in Welsh II that are barred under res judicata are those that were mature at the time that Welsh filed her petition in Welsh I. The parties have not briefed this issue under this framework (instead proposing contrary rules for claim preclusion dates not supported by Texas caselaw). For that reason and because at least some facts supporting Welsh‘s alleged claims clearly were not extant at the time Welsh I was filed such that a claim could not have been mature based upon thosе facts, we conclude that the question of which claims survive in this case is best left in the first instance to the district court on remand.
VACATED and REMANDED.
Sean Patrick Flammer, Esq., Office of the Attorney General for the State of Texas, Austin, TX, for Defendants-Appellees.
Before JONES, WIENER, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
The University of Houston found two former students, Ryan McConnell and Natalie Plummer, to have violated the University‘s sexual misconduct policy. After two unsuccessful administrative appeals, McConnell and Plummer were ultimately expelled. McConnell and Plummer then sued the University and two University officials, alleging that they were denied constitutional due process and were discriminated against in violation of
I
McConnell and Plummer were students at the University of Houston in 2011. On the night of November 19, 2011, McConnell met, for the first time, “Female UH Student” at a bar in Houston. Both McConnell and Female UH Student became intоxicated. They were ejected from the bar for disruptive behavior and walked to McConnell‘s nearby dorm room. There, they engaged in sexual activity, but neither can remember exactly what occurred.
Later that evening, McConnell‘s girlfriend (now wife), Plummer, appeared at his dorm room and found McConnell and Female UH Student, both naked and unconscious on the floor. Plummer yelled expletives and took a photo of the two, which she posted on Facebook but removed sometime later. Plummer also made two brief videos. In one, the “Dorm Room Video,” a drowsy McConnell appears to fondle the unresponsive Female UH Student as she lies on the dorm room floor and Plummer crudely berates him. After McConnell stands up, Plummer focuses the camera on Female UH Student‘s vagina and yells several lewd statements, including “Fucking yeah, yeah. Fucking get it, get it. Fucking get that pussy, bitch!” Simultaneously, slapping sounds can be heard in the background. In the other, the “Elevator Video,” Plummer films Female UH Student, who is still fully naked, lying on the dormitory‘s communal hallway floor. Female UH Student stands up and walks toward Plummer, and Plummer leads the nude Female UH Student into an elevator and sends it to the lobby. Voices can be heard speaking throughout the video, but the precise statements are often unclear. Plummer later showed the videos to her friends and shared the videos and photo electronically.
Other students found Female UH Student lying naked in the elevator, and they contacted University police. A Sexual Assault Nurse examined Female UH Student and found injuries consistent with sexual assault. Police investigated the incident, but did not criminally charge McConnell or Plummer.
On February 12, 2012, Female UH Student submitted a complaint to the University alleging that she was a victim of sexual assault. Richard Baker, the Vice President of the University‘s Office of Equal Opportunity Services (EOS), notified McConnell that EOS was investigating the incident. Thereafter, McConnell and Plummer met with Baker to discuss
The University provided both McConnell and Plummer with a formal, written declaration of the various allegations against them on September 30, 2013.1 Each student retained counsel, who formally responded to the charges and accompanied McConnell and Plummer to meetings with Baker. McConnell reported that he remembered nothing after he and Female UH Student arrived at his dorm room but denied sexually assaulting her. Plummer insisted that her actions were motivated by anger at her boyfriend, not an attempt to encourage him to assault Female UH Student. She also asserted that Female UH Student, when awakened, was pressing to “sex” her.2
After completing his investigation, Baker authored a report finding that McConnell “violated the sexual assault and attempted sеxual assault provisions . . . when he engaged in sexual activity with [Female UH Student] on November 19, 2011, without her consent.”3 Baker also found that Plummer “facilitated/encouraged the sexual assault of another [UH] student[,]” “electronically recorded the sexual activity of another [UH] student and then shared that video . . . without that student‘s permission[,]” and “made lewd, lecherous and humiliating comments of a sexual nature against another [UH] student.”
Pursuant to the University‘s procedures, each student appealed Baker‘s findings to a four-person panel of University personnel. The panels, tasked with upholding or rejecting EOS‘s findings based on a preponderance of the evidence standard, held separate appeal hearings for McConnell and Plummer. Neither student attended the other‘s full hearing, although Plummer testified as a witness at McConnell‘s hearing. Baker, an attorney, presented his findings to the panel, including by testifying about his investigation and providing a packet of investigatory materials. He called two witnesses at McConnell‘s hearing—two University police officers who resрonded to and investigated the incident—and none at Plummer‘s hearing. An additional University EOS attorney was present at each hearing to advise the panel.
McConnell‘s and Plummer‘s attorneys attended and participated in the hearings. Although the University‘s procedures explicitly allow a student‘s attorney only a minor role as an “adviser” at the appeal
McConnell and Plummer each made opening and closing arguments, testified, presented witnesses, cross-examined witnesses, and raised legal and factual objections to the panel. The University‘s procedures explicitly allow cross-examination of witnesses only through the submission of written questions. Here, however, the рanels frequently allowed all parties (or their attorneys) to question witnesses (including Baker) in person at the hearing. McConnell and Plummer were informed of the investigatory evidence several days before each hearing, although some identities were redacted from materials based on educational privacy concerns. At each hearing, the panel was shown the Dorm Room and Elevator Videos, and all parties offered interpretations of the videos’ contents. Female UH Student was not deposed and did not appear or testify at either hearing. Neither Baker nor any other witness testified to the substance of any conversations with Female UH Student about her memory of the night, and Female UH Student‘s original complaint—which was among the materials supplied to the panels—stated that she did not remember anything that occurred after she arrived at the bar the night of the incident.
Both hearing panels upheld Baker‘s findings. McConnell and Plummer then appealed to Richard Walker, the University‘s Vice President and Vice Chancellor for Student Affairs and Enrollment Services, as allowed by the University‘s procedures. In September 2014, Walker denied these further appeals. McConnell and Plummer were expelled and banned from the University and any activities connected with it.4 The disciplinary notations were, however, removed from their official transcripts.
In this lawsuit challenging their discipline, McConnell and Plummer complain that the University retroactively applied its 2013 Misconduct Policy to their 2011 conduct. They also assert that the University‘s hearing procedures failed to give them adequate notice of the adverse evidence, denied them confrontation rights against Female UH Student, and limited cross-examination to written questions. Finally, they charge that Baker‘s multiple roles created impermissible conflicts. These deficiencies, they allege, deprived them of constitutional due process.5
The district court, in a 36-page opinion relying on Supreme Court and Fifth Circuit law, concluded that the process offered to McConnell and Plummer was constitutionally sufficient. Plummer v. Univ. of Hous., No. 4:14-CV-2959, 2015 WL 12734039 (S.D. Tex. May 28, 2015). McConnell and Plummer appealed. We affirm.
II
“It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion.” Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992,
Generally, the amount of process due in university disciplinary proceedings is based on a sliding scale that considers three factors: (a) the student‘s interests that will be affected; (b) the risk of an erroneous deprivation of such interests through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (c) the university‘s interests, including the burden that additional procedures would entail. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In Goss v. Lopez, the Supreme Court held that an informal give-and-take between a high school student and the administration afforded sufficient process preceding a tеmporary suspension. 419 U.S. at 584. The Court specified, however, that “[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.” Id. This court has held that “due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct.” Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 158 (5th Cir. 1961). “[T]he interpretation and application of the Due Process Clause are intensely practical matters and . . . ‘the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.‘” Goss, 419 U.S. at 578 (alteration omitted) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). “The nature of the hearing should vary depending upon the circumstances of the particular case.” Dixon, 294 F.2d at 158.
Here, the first and third Mathews factors are easily identified. On the one hand, McConnell and Plummer have a liberty interest in their higher education. See Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929-30 (Tex. 1995) (recognizing a liberty interest in graduate higher education under the Texas Constitution); accord Dixon, 294 F.2d at 157 (“The precise nature of the private interest involved in this case is the right to remain at a public institution of higher learning in which the plaintiffs were students in good standing.“).6 The sanctions imposed by the University could have a “substantial lasting impact on appellants’ personal lives, educational and employment opportunities, and reputations in the community.” Doe v. Cummins, 662 Fed.Appx. 437, 446 (6th Cir. 2016) (unpublished) (citing Goss, 419 U.S. at 574-75). On the other hand, the University has a strong interest in the “educational process,” including maintaining a safe learning environment for all its students, while preserving its limited administrative resources. See Goss, 419 U.S. at 580, 583; see also Gorman v. Univ. of Rhode Island, 837 F.2d 7, 14-15 (1st Cir. 1988) (“Although the protection of [a student‘s private interest] would require all possible safeguards,
Applying the second Mathews factor—the risk of erroneously depriving McConnell and Plummer‘s interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards—the unique facts of this case render it unnecessary that we draw any determinative line regarding sufficient procedures in state university disciplinary cases. McConnell and Plummer received multiplе, meaningful opportunities to challenge the University‘s allegations, evidence, and findings. In light of the graphic conduct depicted in the videos and photo—which the panels viewed for themselves before affirming the University‘s findings—further procedural safeguards would not have lessened the risk of an erroneous deprivation of McConnell and Plummer‘s interests or otherwise altered the outcome. See Mathews, 424 U.S. at 335; see also Flaim, 418 F.3d at 639-43 (holding that additional procedures were not necessary in case without significant factual disputes); Cummins, 662 Fed.Appx. at 446-451 (finding students accused of sexual assault received adequate due process in university disciplinary hearings where, “although the procedures employed by [the university] did not rise to the level of those provided to criminal defendants,” students received an “opportunity to be heard at a meaningful time and in an meaningful manner” (quoting Mathews, 424 U.S. at 333)); cf. Dailey v. Vought Aircraft Co., 141 F.3d 224, 230 (5th Cir. 1998) (“There may be cases of such gross and outrageous conduct in open court as to justify very summary proceedings for an attorney‘s suspension or removal from office, but even then he should be heard before he is condemned.” (internal quotation omitted)); Scott v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (recognizing that the existence of undisputed video evidence, which discredited the plaintiff‘s version of events, justified summary judgment).8 Thus, we
McConnell and Plummer argue several potential violations of due process standards. They assert inadequate notice of the standards of conduct because the University‘s sexual harassment/misconduct policy was changed between 2011, when the incident occurred, and 2013, when they were formally accused. They contend the investigation against them was not full and fair, that Baker‘s role was suffused with conflicts and bias against them, that there was an “absence of direct evidence,” and that they were denied confrontation of the victim and effective cross-examination. Each of these claims will be briefly discussed.
The claim that a standard of misconduct was retroactively imposed on McConnell and Plummer is unsupportable on the facts of this case. Their conduct, as detailed in the photo and two videos, violated the University‘s Interim Sexual Assault Policy (effective in November 2011), which prohibited sexual assault as “the touching of an unwilling person‘s intimate parts . . . through the use of the victim‘s mental or physical helplessness of which the accused was aware or should have been aware.” The policy also prohibited “. . . sexual misconduct which is lewd, exhibitionistic or voyeuristic . . . [and] forbids . . . any act which demeans, degrades, or disgraces any person. . . .” The University‘s Interim Sexual Harassment policy (effective in November 2011) prohibited “the use of sexually oriented photos . . . unrelated to instruction and/or the pursuit of knowledge.”9 The conduct captured in the videos and photo also violated the more broadly worded 2013 Sexual Misconduct Policy, which encompassed the following violations: (facilitating) sexual assault; taking abusive sexual advantage of another; and non-consensual electronic recording and transmitting sexual images without the knowledge and consent of the parties involved. As applied to this conduct, the charged violations are neither vague nor outside the legitimate purview of the policies.
McConnell and Plummer also assert that they were denied confrontation of Female UH Student and the opportunity to effectively cross-examine adverse witnesses. This case does not require that we determine whether confrontation and cross-examination would ever be constitutionally required in student disciplinary proceedings. The unique facts of this case demonstrate no procedural deficiency in this regard. The University‘s case did not rely on testimonial evidence from Female UH Student. Indeed, it is undisputed that Female UH Student remembered little about the incident, and no one testified to the substance of any conversations with her about her memory of the night. Rather, the primary evidence Baker presented to the panels were the videos and photo, taken and distributed by Plummer. The conduct depicted in the videos and photo—combined with Plummer‘s subsequent distribution and publication—was sufficient to sustain the University‘s findings and sanctions. See Mathews, 424 U.S. at 335 (courts must weigh whether further procedural safeguards would have lessened the risk of an erroneous depriva
McConnell and Plummer‘s claims that the University failed to prоvide adequate notice of adverse evidence and that Baker‘s multiple roles suffused the proceedings with bias are similarly unpersuasive. Applying the second Mathews factor, even if the University could have provided notice further in advance of the hearings of the identities of relevant witnesses and other evidence, the ultimate disciplinary decisions were conclusively supported by the videos and photo, about which McConnell and Plummer had full knowledge. See Mathews, 424 U.S. at 335. McConnell and Plummer do not show how more timely knowledge of the adverse evidence could have aided in their defense. See id. Likewise, McConnell and Plummer have not demonstrated that Baker‘s dual roles amount to a constitutional violation. They argue that Baker‘s dual role as victim advocate and investigator prevented him from impartially investigating the incident, and that EOS‘s role in advising the panel created a conflict of interest.11 But McConnell and Plummer fail to show how any of these alleged impermissible conflicts undermined the integrity of their proceedings. Baker relied primarily on the videos and photo to support his findings before the panel, and there is nothing in the record or offered by McConnell and Plummer to suggest that a different investigator would have uncovered information diminishing the significance of that graphic evidence to the initial findings. See Mathews, 424 U.S. at 335; cf. Baran v. Port of Beaumont Nav. Dist. of Jefferson Cty., 57 F.3d 436, 446 (5th Cir. 1995) (“[Where a]llegations of bias based on the prejudgment of the facts or outcome of a dispute generally stem from the fact that an administrative body or hearing officer has dual roles of investigating and adjudicating disputes and complaints . . . the honesty and integrity of those serving as adjudicators is presumed.” (citing Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975))). Notably, the
We have carefully reviewed the record, and we hold that the process Appellants received was sufficient. It follows that the question of qualified immunity for the individual defendants becomes moot. Again, we emphasize that we do not suggest a constitutional “floor” for state university disciplinary procedures. Whether a state university has provided an individual student sufficient process is a fact-intensive inquiry and the procedures required to satisfy due process will necessarily vary depending on the particular circumstances of each case. See Dixon, 294 F.2d at 158. As we noted at the outset, the Supreme Court has admonished that “[i]t is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion.” Wood, 420 U.S. at 326; see also Davis, 526 U.S. at 648 (“[C]ourts should refrain from second-guessing the disciplinary decisions made by school administrators.“).
III
We now turn to McConnell and Plummer‘s argument that the district court erred in dismissing their
We review the dismissal and the district court‘s related conclusions of law de novo. Dehoyos v. Allstate Corp., 345 F.3d 290, 294 (5th Cir. 2003). Briefly, McConnell and Plummer were required to plead facts asserting a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The University, as a recipient of federal funding, can be held liable for intentional discrimination on the basis of sex or for deliberate indifference to discrimination against or harassment of a student on the basis of sex. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005).12
According to the Second Circuit, a university can face
McConnell and Plummer‘s allegations here rest on selective enforcement and deliberate indifference to their rights. With regard to selective enforcement, they urge that the University was motivated by gender bias in favor of Female UH Student. They assert essentially that McConnell and Female UH Student were in pari delicto, in that both had passed out and each engaged in sexual conduct with another extremely intoxicated individual. Plummer chides the University for not taking up her charge of misconduct against Female UH Student for pressing to “sex” her. We agree, however, with the district court‘s assessment of the undisputed facts: the photo and graphic videos, taken and later exhibited by Plummer, show McConnell touching Female UH Student in private areas. Female UH Student is unresponsive and inactive. Female UH Student was found naked in an elevator and taken to the hospital for sexual assault testing. The University‘s discipline was predicated on what the two charged students did, and during the discipline process they—a male and a female—were treated equally. There is no sound basis for an inference of gender bias.13
McConnell and Plummer tersely assert that the University was deliberately indifferent to the constitutional insufficiency of the procedures it employed in sexual misconduct discipline cases. Although the University may have been better advised in a number of procedural respects, there is a stark contrast between McConnell‘s and Plummer‘s culpability and case procedures applied to them and the allegations of student innocence and official refusal to conduct a thorough investigation in Columbia Univ., 831 F.3d at 49-50, 52-53, 56-57. Deliberate indifference to constitutional rights is a very high standard of misconduct. See Sanches v. Carrollton-Farmers Branch Ind. Sch. Dist., 647 F.3d 156, 169-70 (5th Cir. 2011). As the district court held, the pleadings here do not meet that standard.
IV
For the foregoing reasons, the judgment of the district court is AFFIRMED.
EDITH H. JONES, Circuit Judge, dissenting:
With due respect to my colleagues’ refusal to set a “constitutional floor” for the students’ procedural due process claims, I dissent. This case is the canary in the coal mine, auguring worse to come if appellate courts do not step in to protect students’ procedural due process right where allegations of quasi-criminal sexual misconduct arise. Yes, there is undisputed graphic evidence—videos and a photo of what transpired among McConnell, Plummer and the Female Student on November 19, 2014. The panel‘s conclusion seems driven by the “unique facts” of graphic evidence to discount all of McConnell‘s and Plummer‘s serious arguments. Put bluntly, the panel implies that because they were guilty, they got enough due process.
I would hold that several features of the process to which McConnell and Plummer were subjected, most prominently the intermingled and inherently conflicting duties of UH Title IX Coordinator Baker, violated their due process rights to defend against quasi criminal charges of sexual assault and facilitating sexual assault. I would reverse and remand for further proceedings, which necessarily include the question of qualified immunity.
The background of this controversy, left unmentioned by the panel although both parties cited and relied on it, is the promulgation by the United States Dеpartment of Education, Office of Civil Rights, of a circular that offered “guidance” on how universities must respond to complaints of sexual misconduct on campus. See United States Department of Education, Office of the Assistant Secretary for Civil Rights, Dear Colleague Letter, (2011), available at http://www2.ed.gov/print/about/offices/list/ocr/letters/colleague-201104.html. The circular was not adopted according to notice-and-comment rulemaking procedures;1 its extremely broad definition of “sexual harassment” has no counterpart in federal civil rights case law;2 and the procedures prescribed for adjudication of sexual misconduct are heavily weighted in favor of finding guilt. Institutions of higher learning, like the University of Houston, flocked to embrace the “guidance.” From a federal government database, it is estimated that between 20,000 and 25,000 complaints of sexual misconduct have been filed based on the “guidance” and thousands of students’ discipline cases adjudicated using procedural standards far less demanding than those accorded mоst
The University policies used in this case largely tracked the DOE guidance letter. For this reason, it is a hollow claim that the procedures are owed particular deference as products of “institutions of higher learning.” These policies were developed by bureaucrats in the U.S. Department of Education and thrust upon educators with a transparent threat of withholding federal funding. Viewed as a whole, without the panel majority‘s self-imposed blinkers, the procedures raise serious questions about the sufficiency of the University of Houston‘s procedures to adjudicate fully and fairly charges of sexual misconduct that will affect the students’ future lives as surely as criminal convictions.
In part because the female had no recollection of these events, and she denied anyone had touched or hit her, she declined to file a charge against the students. Because of insufficient evidence, no criminal charges were filed.
Instead, McConnell and Plummer were investigated and charged by Baker, the Vice President of the UH Office of Equal Opportunity Services (EOS), with various violations of the UH sexual misconduct policy (2013 version). Baker‘s official Title IX position placed him in the multiple, and inherently conflicting, roles of advocating for the female student, investigating the events, prosecuting McConnell and Plummer, testifying as a witness at their hearings, and training and advising the disciplinary hearing panels. By a “more likely than not” standard, his investigative report found that McConnell “violated the sexual assault and attempted sexual assault provisions . . . when he engaged in sexual activity with another [sic] [female UH student] on November 19, 2011, without her consent.” Under the same standard, Baker found that Plummer “facilitated/encouraged the sexual assault of another [UH] student.”
During each student‘s separate hearings, Baker informed the panels that their only job was to determine “by a preponderance of the evidence,” which he carefully distinguished from the beyond-a-reasonable doubt standard, whether the results of his investigation should be sustained. And lest it be overloоked, Baker ludicrously tried to persuade the panels that the video portrayed Plummer encouraging McConnell to rape the Female Student.3 Baker, in essence, assumed the roles of prosecutor, jury and judge, whose decision the hearing panels were required to approve only by a preponderance of the evidence.
Other aspects of the procedures are troubling. Although the students’ attorneys participated in the proceedings to some extent, they were not permitted formally to represent their clients. Instead, McConnell and Plummer each played lawyer against the real lawyer, University EOS Vice President Baker. Thus, the students made opening and closing arguments, tes
Based on the graphic video and photo evidence, it is unsurprising that the hearing panels upheld Baker‘s charges and the students’ appeals were rejected. (The meaning of “sexual assault” in this context is open-ended but could have covered the conduct here.) They were expelled and permanently banned from UH and any activities connected with it. The disciplinary notations were removed from their official transcripts, but that matters little for the impact of the “sexual predator” stigma on their careers and reputations.6
The panel correctly cites this court‘s decision in Dixon for the proposition that the students have at least liberty interests protected under the due process clause.7 Dixon v. Alabama State Bd. of Ed., 294 F.2d 150, 151 (5th Cir. 1961).8 The panel
In my contrary view, the process deployed against the students was fundamentally flawed because of (a) the absence of a complaint by and evidence from the Female Student; (b) the conflicting roles played by Baker; (c) the preponderance standard for adjudicating quasi criminal conduct (for which no actual criminal charges were brought), compounded by (d) the deference that Baker insisted was due by the hearing panels to his position.9 While it seems incontestable that punishment of some kind was due for the students’ graphically depicted conduct, these watered-down elements of process conspired to assure that Baker‘s recommendations to throw the book at McConnell and Plummer would be approved in full.
Put in terms of the Mathews balancing test, Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), the students’ interests in preserving their educational status and reputations in the face of serious sexual misconduct charges were compelling.10 Second, the risk of erroneous deprivatiоn was exacerbated by (i) the Female Student‘s failure to participate or provide evidence in the disciplinary proceeding; (ii) Baker‘s role as her “advocate” while he also served as prosecutor, a witness, and legal adviser to the hearing panel; (iii) the preponderance test used by Baker in his report, along with the deference he claimed from the hearing panel;11 and (iv) the imbalance be
Third, additional or substitute safeguards would have enhanced the quality of factfinding and adjudication by providing a confrontation right if material fact issues existed. Eliminating Baker‘s role in advising and directing the hearing panel would have enabled the panel to make independent findings and receive disinterested advice on issues such as the meaning of “sexual assault” and “facilitating sexual assault.”12 Elevating the standard of proof to clear and convincing, a rung below the criminal burden, would maximize the accuracy of factfinding. Permitting counsel to represent the students would have resulted in more efficient hearings; the parties and hearing panels spent a lot of time sparring over trivial misunderstandings about procedure. Adopting some or all of the foregoing safeguards would not significantly impede the disciplinary process.
Fourth, the University‘s interest lies in impartially adjudicating quasi criminal sexual misconduct allegations. The University has no significant expertise in this area; indeed, as noted above, its policies and procedures derive directly from the Dear Colleague letter, not from inherently educational decisions. Further, to the extent that UH eliminates confrontation and counsel participation; allows one officer, Baker, to direct the investigatory, prosecutorial and adjudicative process; and relies on the lowest standard of proof, the integrity of its decisions may be questioned and discredited.13
Even assuming that McConnell and Plummer forfeited a challenge to their inability to confront the Female Student, the problem of Baker‘s conflict of interest cannot be overstated. Baker cоuld not conscientiously “advocate” for the Female Student while also conducting an impartial investigation of the accused students. He could not both prepare a report and testify as a principal witness while serving as the prosecutor and then insist that the adjudicatory hearing panel agree with his “preponderance” evaluations of the evidence by their preponderance standard. But he purported to do all these things. Even the Dear Colleague letter admonishes universities that: “The Title IX coordinator should not have other job responsibilities that may create a conflict of interest. For example, serving as the Title IX coordinator and a disciplinary hearing board member or general counsel may create a conflict of interest.” Dear Colleague Letter at 7. To the extent Baker‘s multiple roles substantially lessened the hearing panels’ factfinding and adjudicatory autonomy, the integrity of the process was compromised. See also Brandeis Univ., 177 F.Supp.3d at 606 (“The dangers of combining in a single individual the powеr to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.“).
As a final note, the Sixth Circuit case law cited by the panel is inapposite. In Flaim, the court upheld a medical student‘s expulsion after he had pled guilty to a felony criminal drug offense. While rejecting Flaim‘s individual procedural com
The panel‘s reliance on the Sixth Circuit‘s unpublished opinion in Doe is also curious. First, that the opinion is “unpublished” means it is not to be cited as precedent.
In sum, I do not take the position that the students must be afforded the same procedural protections as criminal defendants. What drives my concern is the close association between the charges levelled against them and actual criminal charges. Sexual assault is not plagiarism, cheating, or vandalism of university property. Its ramifications are more longlasting and stigmatizing in today‘s sociеty. The University wants to have it both ways, degrading the integrity of its fact-finding procedures, while congratulating itself for vigorously attacking campus sexual misconduct. Overprosecution is nothing to boast about.
Even though these students deserved punishment, they also deserved more protective procedures given the seriousness of the charges. See Carey, supra. Accordingly, I would reverse and remand for further proceedings.