Due Process

Federal Judge Concludes UConn Sexual Assault Hearing Likely Violated Due Process,

orders university to temporarily reinstate accused student for Spring semester.

|The Volokh Conspiracy |

From Doe v. Univ. of Connecticut, decided Thursday by Judge Michael P. Shea (D. Conn.):

This case challenges the fairness of disciplinary proceedings brought against Plaintiff John Doe by the University of Connecticut ("UCONN") for alleged sexual assault, culminating in the Plaintiff's two-year suspension from the University…. As set forth herein, the Court grants the Plaintiff's motion for a Temporary Restraining Order {allow[ing] him to "rejoin the class of 2020" and register for Spring classes}.

[A.] Irreparable Harm

Based on the facts alleged in the complaint, the Plaintiff's affidavit, and the documents submitted in support of the motion, it is clear that the Plaintiff will suffer irreparable harm if he cannot enroll in UCONN this semester. The January 15, 2020 letter from UCONN to the Plaintiff states that his suspension is "effective from December 16, 2019 through January 1, 2022." Though he may apply for readmission in 2022, his "[r]eadmission to the University is not guaranteed" and "reacceptance into your school or college is at the discretion of the school or college." In addition, "[a] notation of Suspension shall be placed on [his] official transcript until graduation" and "[t]he University of Connecticut will not accept credits earned at another institution during a period of suspension."

In his affidavit, the Plaintiff explains that he was "majoring in Management Information Systems in the UConn business school" and "had only one semester to go before graduating." He was in good academic standing, with a 3.5 GPA and an unblemished record, and he held a job on campus. After the suspension, even if he is readmitted to UCONN, he would "still have to reapply to the business school to complete [his] degree."  He avers that "[w]ith a finding of responsibility for a sex crime and a two-year gap in [his] educational record … [his] educational and career prospects are forever changed."

Because UCONN "will not accept credits earned at another institution during a period of suspension," "this two-year suspension stops [his] education dead in the water" and guarantees that he will have a two-year gap in his education.  He would have to explain that gap—and his sanction for a sex offense—to any educational institutions or jobs he applies for in the future.  He states that he was "beginning to apply for internships which are available only during your senior year," and that "UConn's actions against [him] have kept [him] from applying to internships, let alone [his] first post-college job[,] which [he] planned to take after graduating in spring 2020."

For a college student poised to graduate in a few months, it is highly likely that a two-year suspension and a sanction for sexual assault would indeed "forever change[]" the trajectory of his education and career. If he is not permitted to enroll in the Spring 2020 semester, he would need to explain a gap on his résumé in future applications to schools or jobs. He would also need to explain the suspension notation on his UCONN transcript, and a truthful explanation would seriously hinder his prospects. During the January 23, 2020 telephonic status conference, counsel for the defendants did not offer any argument that the harm imposed by a two-year suspension would not be irreparable. I find, therefore, that the Plaintiff has demonstrated irreparable harm.

[B.] Clear Likelihood of Success on the Merits

The Plaintiff alleges, among other claims, that UCONN's disciplinary proceedings violated his right to due process under the Fourteenth Amendment. On the record before the Court, the Plaintiff has met the heightened requirement for a mandatory injunction and has shown a clear likelihood of success on his due process claim….

On the question of "what process is due [in government administrative hearings]," the law is highly fact-specific. "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." A court must consider three factors in determining whether due process has been satisfied: "[f]irst, 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."

The Plaintiff was accused of "non-consensual sexual contact and nonconsensual sexual intercourse" with a fellow UCONN student ("Jane Roe") in Jane Roe's dorm room on the evening of April 5, 2019. UCONN ultimately found that he did "engage[] in non-consensual sexual contact as well as … non-consensual intercourse with [Jane Roe] in [Roe's] Residence Hall room." The Plaintiff does not dispute that he had sexual intercourse with Jane Roe on that night, but he argues that all sexual activity between them was consensual. Because the Plaintiff and Jane Roe were the only two in the dorm room during the incident, UCONN's finding of non-consent necessarily hinged on the credibility of both the Plaintiff and Jane Roe.

Despite the importance of credibility to the factual dispute, UCONN's disciplinary procedures hampered the Plaintiff's ability to present a meaningful defense on this issue. First, the Plaintiff avers in his affidavit that the hearing officers at his December 16, 2019 administrative hearing refused to hear testimony from four of the five witnesses the Plaintiff attempted to present. The evidence the Plaintiff has submitted indicates that his witnesses were prepared to offer testimony that would tend to undermine Jane Roe's credibility.

Specifically, two witnesses were prepared to testify that Jane Roe had initiated "sexual movements" on the Plaintiff's lap in the car on the night of April 5, 2019. ECF No. 10-5 at 5 (statement by witness "FW" that "the girl sitting on [Plaintiff's] lap was moving like she was dancing on his lap, moving her body like moving from her waist. I didn't want to stare at them."); ECF No. 10-11 (statement by witness "KW" that "I could also feel the knees of the girl sitting on [Plaintiff's] lap through the back of my seat. I could feel that she was moving back and forth. It was clear to me that these movements on [Plaintiff's] lap were sexual. She was not just bumping my seat randomly."). This is significant because Jane Roe specifically denied initiating any sexual movement on the Plaintiff's lap. ECF No. 10-2 at 40 (investigator's interview notes, indicating that he asked Jane Roe, "Information received indicated that you were rubbing your butt on the respondent's penis while sitting on him in the back seat of the car. Can you respond to this information?" and that Jane Roe responded, "I was not.").

The record also suggests that the Plaintiff's proposed witnesses were prepared to testify that Jane Roe and her female friend invited the Plaintiff and one other male friend to their dorm, which would contradict Jane Roe's written statement, which states, "one of [Plaintiff's] visiting friends and himself suggested that they come back to my friends and I dorm …. Although my friend and I agreed to them coming over since I knew she liked [Plaintiff's] friend, I made it a point that we can all, as a group, watch tv in my room as a way to infer that I had no intentions of doing anything sexual …."

In contrast, the Plaintiff's friend "JM" stated in his interview that "[Plaintiff] was going to go back to his room, but the ladies wanted me and [Plaintiff] to come back with them. They said 'let's chill, let's come over to our place.' … My friend [KW] stayed in the car because he did not have a date." In his written statement, "KW" similarly wrote, "[Plaintiff] got out [of the car]. Both girls in the backseat called out to him to pull him back into the car. They wanted him to come back to their place…. I sure wasn't being invited back to their dorm…. I stayed in the car and wasn't invited in. When they left the car, the girls led [JM] and [Plaintiff] to their building. No one invited me to do anything."

Based on this evidence, the Plaintiff's proposed witnesses would have provided relevant testimony as to Jane Roe's credibility, but the hearing officers allowed testimony only from "JM," refusing to hear testimony from "FW," "KW," and two other witnesses proposed by the Plaintiff. "KW" was never even interviewed during the investigation, though the Plaintiff identified him as a potential witness during his interview.

Under the factors identified in Mathews v. Eldridge, although there is a "risk of an erroneous deprivation" in any case involving a "he said/she said" dispute, that risk was heightened by the procedures used here. In such a dispute, evidence bearing on credibility is critical, and thus the "probable value" of allowing these witnesses to testify, as an additional procedural safeguard, was substantial. That value easily outweighed any burden on UCONN, since the witnesses were already present at the hearing and willing to testify.

In addition to denying the Plaintiff the opportunity to present four of his five witnesses, UCONN also never gave the Plaintiff an adequate opportunity to respond to or question Jane Roe or the other female witnesses interviewed during the investigation. Under UCONN's policy, the Plaintiff was provided with a copy of Jane Roe's statement and notes from interviews with Roe and two other female witnesses only after the investigation was complete and the investigator had prepared recommended findings. At the hearing, only Roe testified; the other two female witnesses did not attend.

The Plaintiff, therefore, did not have the opportunity at any point in the process to propose any questions for the two female witnesses, let alone to cross-examine them. But the investigator and the hearing officers relied on the interviews of those witnesses in making their determinations. See ECF No. 10-7 at 8, 10 (investigator quoting statements from female witnesses, "S3" and "S4" in analyzing the disputed facts of the incident and concluding "there is a preponderance of the evidence that [Plaintiff] engaged in non-consensual sexual contact"). And while the Plaintiff was allowed to propose some questions for the hearing officers to ask Jane Roe, the hearing officers did not ask every question the Plaintiff proposed, according to representations by Plaintiff's counsel during the January 23, 2020 argument. See also id. (The Plaintiff asked for a copy of any statement Roe submitted in April 2019, but UCONN did not provide it, and the hearing officers accepted Roe's testimony that it was the "same" as her later statement without further questioning.).

In analyzing the requirements of due process in the context of university disciplinary proceedings, courts differ on the question of whether the accused has a right to cross-examine witnesses in the traditional manner. Here, however, the Plaintiff was denied even the right to respond to the accusations against him in a meaningful way, because he had no opportunity to question or confront two of Roe's witnesses on whose statements the hearing officers chose to rely. Given UCONN's reliance on this testimony and given the importance of credibility evidence to this factual dispute, denying the Plaintiff the opportunity to respond fully to Jane Roe and her witnesses heightened the risk of erroneous deprivation.

This case involves a severe sanction, a "he said/she said" dispute hinging on the credibility of Roe and the Plaintiff, and important procedural shortcomings in exploring the critical issue of credibility. Under these circumstances, the Plaintiff has shown a clear likelihood of success on the merits of his due process claim. See Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967) ("We conclude, therefore, that due process only requires for the dismissal of a Cadet from the Merchant Marine Academy that he be given a fair hearing at which he is apprised of the charges against him and permitted a defense…. [T]he rudiments of a fair hearing in broad outline are plain. The Cadet must be apprised of the specific charges against him. He must be given an adequate opportunity to present his defense both from the point of view of time and the use of witnesses and other evidence." (emphasis added)); Purdue Univ., 928 F.3d at 664 (plaintiff adequately alleged a violation of due process where, "in a case that boiled down to a 'he said/she said,' " the university's "Advisory Committee[] fail[ed] to make any attempt to examine [complainant] Jane's credibility" even though plaintiff "identified specific impeachment evidence," and noting that the "failure to even question Jane or John's roommate to prove whether this evidence was reason to disbelieve Jane was fundamentally unfair to John")….

[C.] Balance of Equities and Public Interest …

While UCONN certainly has an interest in designing and implementing its own disciplinary proceedings, the harm a TRO would inflict on UCONN is slight. It will suffer no harm if the Plaintiff enrolls and begins to take classes this Spring; UCONN's general counsel confirmed on the January 23, 2020 telephonic status conference that UCONN would not incur any monetary harm from the Plaintiff's enrollment in the Spring semester. The Plaintiff's enrollment may cause some emotional harm to Jane Roe, for example, if she encounters the Plaintiff on campus. However, the Plaintiff avers that there was "no incident or conflict between" him and Roe between April 2019 and December 2019, even though they sometimes crossed paths at their jobs for the same campus employer.

Further, nothing in the record before the Court suggests that UCONN is concerned that the Plaintiff's presence on campus might inflict particular harm on Roe: it took no action in response to Roe's initial April 2019 allegation, and it did not institute any interim measures—such as a no-contact order—after she renewed her allegations in September 2019. Therefore, because the suspension's harm to the Plaintiff outweighs any harm to UConn or anyone else, the balance of equities favors the issuance of a TRO that allows him to enroll and take classes while the parties litigate his motion for a preliminary injunction. An evidentiary hearing on that motion has already been scheduled for February 11, 2020.

Finally, the public interest favors a TRO to protect the Plaintiff's constitutional right to due process while the parties litigate the preliminary injunction motion. There is a public interest in avoiding violations of constitutional rights. While there is also a public interest in enforcement of university disciplinary policies, allowing the Plaintiff to enroll in school while the Court adjudicates his motion for a preliminary injunction does not unreasonably interfere with that interest….

 

NEXT: The Montana Blaine Amendment Case and the Need for a Consistent Approach to Discrimination on the Basis of Religion

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  1. But…but…but..he is a self-identifying cis-gendered white male! That alone PROVES his guilt. #allwomenalwaystellthetruththewholetruthandnothingbutthetruthsohelpthemGaia

    1. Your capital G and lack of capital W is telling.

    2. Where exactly in the record does it say he is white.

      Your assumption is showing.

      1. This is correct. Although the data is hard to come by due to the lack of transparency in these proceedings, it appears that the people punished in these ridiculous Title IX proceedings are dis-proportionally non-white.

  2. This opinion shows in absolute terms why a university should not be in the adjudication business. Universities should restrict their activities to teaching, research and fielding good football and basketball teams (not necessarily in that order). They have no understand or expertise or any basis for engaging in a quasi-judicial process.

    If a university does wish to undertake an investigation and hearing that could lead to sanctions against an individual whose conduct they feel warrants expulstion or suspension, they should outsource that investigation and process to a non-affiliated third party group that can conduct the process in a fair, impartial manner that protects the rights and identities of all parties.

    But this is unlikely to happen, given the arrogance of university administrations that feel they, and they alone, know everything and what is best all around.

    Thanks to Prof. Volokh for the post.

    1. Oh, but they hire the absolute best graduates of gender studies programs to handle these adjudications. And when they constantly get defeated in court the answer will be to hire even more of the best gender studies graduates with increased powers and oversight.

    2. If the woman believes that she was raped, she should report it to the police. They’re equipped to investigate crimes and the courts are equipped to adjudicate them.

    3. Except for the clear and relevant point that University of Connecticut has a law school. That makes their actions in this case, at best, willfully negligent of the facts of law.

      The judge’s description of the case is reminiscent of the Star Trek Cardassian court, where the verdict is given first and then the trial begins.

      1. That’s…not how this works.

        1. They have legal experts on their payroll and still create policies that violate the concept of justice to a point that it’s rationally compared to comically corrupt fiction (Alice in Wonderland also comes to mind). Remember, this isn’t the plaintiff speaking. It’s the judge. We can assume that his description is reasonably accurate. A five year old child would question the fairness of the proceedings.

          I don’t know about where you work, but if I see a policy that violates any part of the law that I know about, I speak up. The professors in the law school definitely know about the constitutional requirements and should have spoken up at their institution implementing illegal policies (in fact, it might be an ethical violation not to). This is in addition to the university’s dedicated legal department. They have NO excuse.

          1. Having a law school doesn’t make you an expert in how a court is going to rule.

            You need wizards or something for that.

          2. Even if law professors are experts on constitutional law (an unproven assumption but we’ll accept it for the moment), those law professors are not counsel for the university. Only those paid by the company to act as counsel get a say in the policies or have any accountability over the constitutionality of those policies.

            The law professors may have spoken up about the policy and been ignored. Or they may have ignored the policy. They may even have supported it. Unless they were acting as counsel, their opinions carry no more weight than the uninformed opinions of the newest professor of English Studies.

      2. The Cardassian justice system and fiction are great, though.

    4. This opinion shows in absolute terms why a any government entity should not be in the adjudication business sans detailed constitutional requirements as in the Bill of Rights

      FTFY

      “We can ignore it because it’s a civil penalty, not a criminal one.”

      “We can ignore it because it’s an impeachment, not a criminal penalty.”

      In both cases, gleefully and proudly ignored in pursuit of nailing the person.

      A warning to all to not ever let cracks into the base idea.

      1. You’re betraying more than ignorance of the law but willful blindness of it. This is after I’ve seen people walk you through it on this blog.

        The specifics of due process have always been different for criminal process. It’s explicitly in the text of the Constitution.
        e.g. nor shall be compelled in any CRIMINAL case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

        1. Oh FFS, you leftists know full well that “due process” is not merely a Constitutional protection, but an American ideal. The pedantry that it doesn’t apply for sexual assault cases in universities, for impeachment, and at private universities is really, really, annoying.

          1. The concept of due process is not merely a constitutional protection, but an American ideal. The specifics of what process is due vary by situation.

            1. True. However, the most basic form of due process is being allowed to review evidence before the trial, counter the evidence presented, and present your own evidence of your innocence. This is a pre-school level definition of due process.

              Yet, it was not followed.

              1. Yet, it was not followed.

                I don’t know why you think McConnell won’t let Trump counter the evidence presented or present his own evidence of innocence. Or why you think Trump didn’t get to see the testimony that had been obtained by the House before the trial started.

                (You do understand that the trial is what happens in the Senate, not the House, right?)

                1. So you admit that the House “investigation” and vote for impeachment was no different than the Progressive controlled university kangaroo courts.

                  1. No, I really don’t “admit” that at all. In fact, entirely the opposite. I was trying to explain to you that in the impeachment process, the House isn’t serving as an adjudicatory body, so it isn’t a court, kangaroo or otherwise.

                    Kangaroo courts, whether at universities or elsewhere, issue verdicts and punishments. That isn’t the House’s role. The trial of an impeached officer doesn’t start until after the House is done.

        2. Now who’s displaying willful ignorance? I demonstrated the reason this is in the constitution by explicitely calling out two cases where it is not, and why, to demonstrate the ease with which politicians and officials will happily violate those standards.

          This demonstrates conclusively the wisdom of adding it in the first place.

          1. Although you don’t say so explicitly, I get the feeling you think all systems go for politicians to wreck others if it isn’t banned, and that’s mighty keen to you? If so, you are further proof of its wisdom

          2. That’s not what you did. You demanded the same due process in the Bill of Rights for administrative actions and impeachment.

            That’s anti-constitutional.

            I know you didn’t mean it; you just didn’t think. But come on, man. Not all process that is due is the same.

            1. “That’s anti-constitutional.”

              what?

              Claiming that the constitution requires the same protections for impeachment and administrative proceedings might be incorrect, but that’s not what the comment said.

              He said what we should provide similar protections for impeachment and punitive administrative proceedings as we do in criminal prosecutions, for the same reasons. And you have failed to address his argument.

              1. I don’t see how else to parse ‘detailed constitutional requirements as in the Bill of Rights’ other than what the bill of rights lays out as elements of due process, which is specific to criminal law.

                The Founders used the word criminal for a reason. A lot of y’all are pretending that word doesn’t exist.

                Fair weather originalists, now fair weather textualists.

                1. IIUC Sarcastro is saying that civil courts and administrative hearings do not have to provide any Due Process to the accused? It is no problem taking testimony from the accuser(s) only and ignoring any testimony from the accused during the investigation; let alone providing all evidence, including exculpatory material, to the accused.

                  1. FFS. Look, I don’t always agree with Sarcrasto, but at least be honest about what he’s arguing. That’s not what he’s saying AT. ALL.

                    That you have to make stuff up in retort says a lot about the strength of his argument and the weakness of yours.

        3. The specifics of due process have always been different for criminal process. It’s explicitly in the text of the Constitution.

          But that avoids the question of what process is due in a case like this one, where you are ruining a young man’s life by expelling him from school and labelling him a rapist. True, this is a “civil” (which nowadays means “not criminal”) decision, but I think that more process is due for this kind of a proceeding than, say, for a $25 parking ticket. From this decision, it is apparent that what he got was far short of what is “due,” and I think that this case is exemplary of what is happening in schools around the country.

          1. Oh, I’m fine with the holding here. I’m a big fan of Goldberg &c.

            My point is specifically to Krayt’s citation to the due process ‘as set forth in the Bill of Rights’ is wrong as he applies it elsewhere.

            It’s a growing thing as the right distorts reality and itself for Trump, but this is particularly egregiously anti-Constitutional.

  3. So, did this turn out this way because UConn is a state school, and therefore at least vaguely governmental? Or is this sort of result likely to occur even in cases invovling purely private universities as well, assuming sufficiently similar facts?

    1. It is generally accepted that public universities are “state actors” that are subject to the strictures of the Constitution. Private universities are not. There may be a basis under Title VII or contract law to require some kind of due process in a case like this one, but that is a harder sell to a court.

  4. Is there any way that this ruling can be applied in similar situations at other universities? It seems that misuse of Title IX has become a nation-wide trend to either get revenge for whatever, or to be able to look like a victim if the female gets pregnant (it seems that pretty much all cases have been females making the charge).

    Also, due process seems to be just two words that mean nothing to the administrators responsible for adjudicating the complain. Almost always it appears that male-bad/female-good is the mantra, and rarely does the defendant get to confront the accuser or present a suitable rebuttal.

  5. White man = guilty, guilty guilty in the eyes of a liberal administrator

    1. The number of victimization-addicted sad sacks here who think a system can’t be broken for reasons other than persecuting white men…

      1. Leave out the white part, leave in the men part. The system as practiced in many universities is tilted heavily towards concluded that a woman’s accusation of rape against a man is true.

        And, in fact, many of the men on the receiving end of these accusations are black.

        1. I’m actually not at all sure that’s true. Think of the inventives – it’s actually tilted towards making the issue go away.

          We see the examples where the issue doesn’t go away and the accused an gets punished, but that’s some extremely strong confirmation bias at work.

        2. Though I allow that your post outlines a different and more rational concern than the knee-jerk ‘white hetero men oppressed again’ put forth by some on here in reaction to every stubbed toe they hear about.

          I still think there’s a decent chance you’re wrong on your facts.

    2. Just for the record, nothing in the record describes him as white

      1. This from the FIRE site seems to indicate that they both may be African American:

        The case stems from a sexual encounter between Plaintiff and his accuser, Jane Roe, who knew one another from their jobs as student workers at UConn’s African American Cultural Center.

  6. The only mistake I see in the opinion is the conclusory statement that there is any “public interest in enforcement of university disciplinary policies”. I support the enforcement of university disciplinary policies to the extent that they are limited to university-specific infractions like plagiarism or cheating on an exam. When the infraction is criminal, they should admit they have neither competence nor jurisdiction and hand the matter over to the police. There is no public interest in maintaining kangaroo courts just because they are enshrined at universities.

    1. I think this is straightforward. If he is guilty, there is clearly a public interest in his being promptly disciplined. That public interest, of course, assumes he is guilty.

  7. It’s true that administrative procedures get less process than criminal ones.

    But process due varies with the seriousness of the deprivation.

    When the proceeding results in a person getting attainted of conduct regarded as a serious crime, the attaint of which will basically destroy his ability to have a career and earn a living and his reputation in society, it would seem it could least be argued that the process due beforehand should be greater than that for a parking ticket (or similar low-level traffic offense), even if the traffic offense is classified as a misdemeanor (a crime) and this isn’t.

    1. Therein lies the problem; rape, sexual assault, etc. are all criminal offenses; yet they are being adjudicated by a kangaroo court.

      1. Yup. Schools have gone nuts. They are using administrators to adjudicate violent crime, and calling Police to handle seating assignment violations.

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