Three Recent Federal Lawsuits Raise Due Process Concerns In University Disciplinary Procedures

Micah Kamrass, Manley Burke, mkamrass@manleyburke.com

Three separate federal cases have emerged where students are challenging university disciplinary action taken against them on the grounds of due process violations. Interestingly, within the last two months, all three cases have survived attempts by the universities to dismiss the claims or to win judgment on the pleadings.

Doe v. Lynn University¹

On January 19, 2017 Judge Robin Rosenberg denied Lynn University’s Motion to Dismiss the claims of John Doe. According to Doe’s complaint, Doe, a 17 year­ old freshman student at Lynn University (at the time of the incident) attended a party at another student’s room in Doe’s residence hall. At the party, Doe engaged in a conversation with a female classmate, and the two agreed to travel to Doe’s room. While in Doe’s room, the two engaged in sexual intercourse.

The next day, a rape complaint was filed against Doe with Lynn University Security, who turned this re­ port over to the Boca Raton Police Department. The Po­ lice Department concluded that there was no evidence of sexual battery. Ultimately, no criminal charges were filed against Doe.

Lynn University charged Doe with engaging in “Non-Consensual Sexual Intercourse” in violation of Lynn’s policies. Doe alleges the hearing on these charges was filled with procedural errors. The Lynn University Hearing Officer refused to ask questions prepared by Doe, but asked questions prepared by the attorney for Doe’s accuser. Additionally, Doe’s closing statement was cut short by a time limit that he was never made aware of, but his accuser’s closing statement was read in full. Finally, the hearing officer refused to allow the presentation of critical evidence such as the reports of the investigating police officers.

Four days later, Doe was found guilty, and Lynn University’s Dean of Students affirmed this decision on appeal. Doe then filed suit alleging gender discrimination under Title IX.

Citing the fact that neither the Supreme Court nor the Eleventh Circuit Court of Appeals has set forth a framework to analyze challenges to university disciplinary proceedings under Title IX, the Court applied the Second Circuit Court of Appeals’ framework from Yusuf v.Vassar College.²    This  framework  established  that  a plaintiff bringing an erroneous outcome claim under Title IX must establish facts sufficient to cast doubt on the accuracy of the proceedings and also that the flawed out­ come was caused by gender The Court also cited two other cases that we have recently reported on in Fraternal Law.³

In applying these cases, the Court determined that previous criticisms of the University for failing to seriously investigate and respond to females’ allegations of sexual assaults committed by males may have caused the Lynn University administrators to “take a hard line toward male students accused of sexual battery by female students, while not prosecuting any female students for similar alleged offenses.” Calling this pressure, “just a pebble on the scale” the Judge said these facts were more similar to the Columbia case than they were to the Cummins case, because there was greater evidence of gender bias through the combination of the national pressure, the local pressure, and the procedural defects. For these reasons, the Court denied Lynn’s Motion to Dismiss, and the case will proceed.

Neal v. Colorado State University-Pueblo

On February 16 , 2017 Magistrate Judge Craig Shaffer recommended that Colorado State University­ Peublo’s motion to dismiss be granted in part and denied in part. According to the complaint, a female student reported to the University’s Director of Athletic Training that the Plaintiff, Grant Neal, a high profile football player, raped another female student, Jane Doe. The complainant made these allegations without informing Doe or Neal. These allegations were ultimately reported to the Tile IX coordinator.

According to the complaint, the complainant inaccurately concluded that Doe did not wish to have sex with Neal that night, even though Doe claimed the sex was consensual. What Doe told the complainant was that she did not want to have unprotected sex with Neal that night, which Neal claims they did not (and Doe seemingly does not dispute).

Even though the alleged victim never accused Neal of having non-consensual sex with her, Neal was found guilty of non-consensual sex, was suspended from campus, and his appeal was denied by the Dean of Stu­ dents. Neal filed suit alleging 14th Amendment procedural defects and Title IX discrimination including not receiving the following items: adequate notice, the identification of adverse witnesses, an evidentiary hearing with cross-examination, and also that the University deviated from its outlined process in other manners.

Citing the same cases as the Doe v. Lynn University decision (and also citing Doe v. Lynn), the Magistrate determined that the DOE/OCR Dear Colleague letter on Title IX from 2011 has skewed enforcement against men, that the University was influenced by the pressure of OCR enforcement, that the University had a financial incentive not to challenge the DOE’s enforcement of the Dear Colleague Letter, and that the underlying facts of this case raise doubt of the accuracy of the outcome. This combination was sufficient for Neal’s claims to survive the University’s Motion to Dismiss.

Doe v. Amherst College⁵

This case is most notable because Doe, a male student, was expelled from the school for sexual conduct, for sex he had while he was incapacitated with Sandra Jones, female student who was not incapacitated. Jones alleged that the two engaged in consensual sexual activities, but that Doe continued even after she later with­ drew her consent. Doe has continually maintained that he was “blacked out” during the encounter and remembers very little.

After being found guilty, having his appeal denied, and then being expelled from the College, Doe was made aware of text messages that Jones sent the evening of their sexual encounter that raised serious concerns about the credibility of her investigation. Doe then re­ quested that the College reopen the proceedings. When the college refused to do so, Doe filed suit alleging gen­der bias in his dismissal and breach of contract among other claims. For many of the same reasons discussed in the previous two cases, the Judge denied the College’s Motion for Judgment on the Pleadings with regards to the Tile IX and Breach of Contract claims.

Conclusion

These cases demonstrate that this remains a rap­ idly evolving area of law. However, it is abundantly clear that male students accused and found guilty of sexual assault by the University are having increased success challenging these sanctions on the grounds of Due Process and Title IX. Fraternal Law will continue to monitor these cases and other similar ones that emerge.

1       Doe v. Lynn University, S.D.Fla., Case No: 9:16-CV-80850. 2                 35 F.3d 709 (2ndCir. 1994).

• See Doe Columbia University, 831 F.3d 46 (2nd Cir. 2016) and

Doe v. Cummins, No. 16-3334, 2016 WL 7093996 (61h Cir. 2016).

• Neal v. Colorado State University-Pueblo (D.Col) 16-CV-873- RM-CBS.

s          Doe v. Amherst College, (D.MA) Case No: 3-15-cv-3009 7-MGM