New 6th Circuit Court Decision in Sexual Assault Case

Tim Burke, Manley Burke, tburke@manleyburke.com

A February 9^th decision by the United States Court of Appeals for the 6^th Circuit demonstrates again the challenges faced by universities in appropriately conducting sexual misconduct disciplinary actions in a fair and constitutionally acceptable manner.  In the case of Doe v. Miami University,¹ John Doe had been accused of sexual misconduct with Jane Doe.  Both had been drinking.  The University hearing panel, which had found John responsible for violating student conduct regulations and suspended him for three terms, summarized their finding this way:

“You stated that you and [Jane] were friends and had spent time together in the past.  Both of you agreed to go to your residence hall room, where you engaged in consensual kissing and some consensual sexual contact.  However, at some point, [Jane] indicated she did not want to have oral sex and asked you to stop, but the act continued.”

John appealed the decision through the University appeal process.  The finding of responsibility was upheld throughout that process, but ultimately his suspension period was reduced by four months.

Nonetheless, John filed suit in Federal District Court against the University and several of those involved in the decision.  He also initially sued Jane.²  John’s Complaint made multiple claims against the University, including a Title IX hostile environment claim, a Title IX deliberate indifference claim, 42 USC 1983 substantive – and procedural due process and equal protection claims, as well as a Title IX erroneous outcome claim, and 42 USC 1983 procedural-due-process and equal protection claims against the disciplinary panel members.

The District Court dismissed all of John’s claims in response to a motion to dismiss by the defendants.

As the 6^th Circuit noted, that on a motion to dismiss, the Court must accept all of the factual claims made by the plaintiff, in this case, John, as being true.  That is a high bar for defendants to meet on a motion to dismiss.  The 6^th Circuit ultimately upheld most, but not all of the District Court’s decision.  Specifically, the Court reversed the District Court on several critical issues.

First, the Court found John’s allegation that Miami University violated Title IX under an erroneous outcome theory of liability created at least a “plausible inference of intentional gender discrimination.”  That conclusion was based on several issues in the record of the case, though at this stage in a case, the record is very limited and discovery between the parties has not taken place.  First, the court noted that Jane’s statement to the University, which was attached to John’s complaint, was “internally inconsistent with regard to her description of the oral sex; she states both that ‘I said no’ and ‘I never said no’.”  The court was critical of the fact that the Hearing Panel did not explain how it resolved that inconsistency.  Vaughn, a defendant and member of the Hearing Panel, had erroneously stated in a newspaper that Miami University required there to be “affirmative consent,” even though that it is not required in the University’s Title IX Policy and the Student Handbook.  Finally, the Court noted that there was “statistical evidence that ostensibly shows a pattern of gender-based decision-making and the external pressure on Miami University supports at the Motion-to-Dismiss stage a reasonable inference of gender discrimination.”

In reviewing Doe’s 42 U.S.C. 1983 Equal Protection claims, the Court focused on John’s claims against Vaughn who, in addition to being a member of the hearing panel, was also the Director of the University’s Office of Ethics and Student Conflict Resolution.  John claimed that Vaughn was the individual responsible for deciding whether or not to charge students with sexual misconduct violations, and she decided to charge him and not Jane, though both, according to John, had violated Miami policies.  John argued that the difference in treatment was based on his gender, and the Court noted that:

“This case is before us at the motion-to-dismiss stage and discovery may disprove John’s allegation that the reason he was treated differently than Jane was because of his gender and not because of other legitimate reasons.  But given the procedural posture, in which the case currently rests, however, we must presume John’s allegations to be true.”

The court also found that John’s claims of violation of his procedural due process rights should not have been dismissed by the trial court.  Relying on prior decisions, the court noted that higher education disciplinary decisions implicate constitutionally-protected due process rights.  In doing so, it referred to prior court decisions which had stated:

“Suspension ‘clearly implicated’ a protected property interest, and allegations of sexual assault may ‘impugh [a student’s] reputation and integrity, thus implicating a protected liberty interest.”³

The court agreed that John was entitled to an unbiased decision maker, and reviewed John’s criticism of Vaughn who, according to John, had served as investigator, prosecutor and judge.  The court agreed that the allegation of her dominance on the three-person hearing panel “raises legitimate concerns, as she was the only one of the three with conflicting roles.”  According to John, Vaughn had also announced during the hearing that “I’ll bet you do this [sexually assault woman] all the time.”  While the court is clear in saying that fulfilling multiple roles in the process does not always create a due process problem, here there were sufficient allegations that the claim should have survived a motion to dismiss.

The court was also critical of the fact that Miami University did not provide John with his complete disciplinary file prior to the hearing.  The Court made it clear that the Constitution does require that a student be provided with the evidence against him prior to the hearing.  Thus, John had “alleged a cognizable due-process violation.”

Finally, the court overturned the finding by the District Court that Vaughn was entitled to qualified immunity since John’s “right to freedom from invidious [gender] discrimination under the Equal Protection Clause was certainly clearly established at all times pertinent to this action.”  The qualified immunity granted to the other members of the University administration who have been named as defendants was upheld.

The Court of Appeals decision sends the case back to the Federal District Court for consideration of the issues on which the court reversed the Motion to Dismiss.

1 Doe v. Miami University, 2018 U.S. App. LEXIS 3075.

2 John and Jane reached a settlement and the claims against her were dismissed by agreement between the parties.

3 University of Cincinnati, 872 F.3^rd at 399 (quoting Cummins, 662 F. App’x at 455).