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It has been a while since my last due process legal update, and there are some new developments to report.

First of all, the complaints continue to roll in. Since I last wrote in late September, at least five new lawsuits have been filed. FIREat Albany Medical College, the College of Saint Benedict & Saint John’s University, Shenandoah University, the University of Cincinnati, and the University of Maryland have all filed new federal lawsuits alleging that they were unfairly treated in campus sexual misconduct proceedings.

On Monday, in an important ruling, an Ohio federal judge allowed several of an Ohio State University (OSU) student’s due process claims to survive a motion to dismiss, even holding that several OSU administrators might not be entitled to qualified immunity on those claims.

First, a brief explanation of qualified immunity: A federal civil rights statute, , allows public officials acting under color of state law—including administrators at public colleges and universities—to be sued in their individual capacities for violating constitutional rights like the right to free speech and due process. Under Section 1983, public officials are entitled to “qualified immunity” against personal liability only if their actions do not violate “clearly established” law of which a reasonable person in the official’s position would be aware. See , 457 U.S. 800 (1982).

In Doe v. The Ohio State University, a male student (going by the pseudonym John Doe) sued OSU and several individual OSU administrators after a university hearing panel found that he had committed sexual misconduct by having sex with a classmate who was too drunk to consent. Doe alleged that his accuser had fabricated her story to avoid potential dismissal from OSU’s medical school for academic reasons, and claimed—among other things—that OSU administrators allowed her to lie about the timing of her claim while they were in possession of evidence to the contrary.

A portion of the suit was brought against OSU and the named administrators in their official (as opposed to individual) capacities, and those claims were dismissed—for technical legal reasons beyond the scope of this piece—on grounds of . When it comes to the claims against the administrators in their individual capacities, however, that is where the opinion gets interesting.

The plaintiff alleged that OSU violated his due process rights in seven specific ways, namely: (1) conducting an inadequate, biased investigation; (2) providing biased training to the hearing panel; (3) denying him the right to conduct discovery; (4) denying him the right to effective cross-examination; (5) denying him the effective assistance of an attorney; (6) preventing him from presenting exculpatory expert testimony at the hearing; and (7) failing to disclose exculpatory evidence relating to the timing of his accuser’s claim.

With regard to most of these claims, the court ruled that the plaintiff did not have a constitutional due process right to these things in a university judicial hearing, underscoring the high bar that plaintiffs face when bringing constitutional due process claims stemming from university conduct proceedings. But the court did allow the plaintiff’s claim to proceed on grounds (2) and (7), and indicated that the individual administrators might not be entitled to qualified immunity if their actions violated his due process rights.

With regard to the claim of biased training, the court began by noting that, as the U.S. Supreme Court has held, “[A] biased decisionmaker [is] constitutionally unacceptable.” The court then looked at whether—as is necessary to survive a motion to dismiss—the plaintiff’s complaint had alleged any “specific, non-conclusory facts that if taken as true show actual bias.” According to the court's summary of Doe's complaint,

the panel members were presented statistical evidence that “22‒57% of college men report perpetrating a form of sexual aggressive behavior.” And, “[c]ollege men view verbal coercion and administration of alcohol or drugs as permissible means to obtain sex play or sexual intercourse.” “Repeat perpetrators are aware of myths and how to present and empathic.” (sic). “Sex offenders are experts in rationalizing behavior.” Doe alleges panel members were trained to “identify and understand characteristics of individuals who pose a risk to the safety of the community.” [Internal citations omitted.]

The court ruled that the training, depending on specific facts, could plausibly have led to biased panel members, and allowed the plaintiff’s claim to proceed against OSU’s Title IX Coordinator—the only named administrator who had actually been involved in the training.

The other claim that the court allowed to proceed related to Doe’s allegation that his accuser had fabricated her claim of assault in order to avoid academic dismissal from OSU’s medical school. At Doe’s hearing, his accuser (who is referred to in court documents by the pseudonym Jane Roe) had testified that “their decision to keep me in school and to allow me to continue next year in the fall was already decided before my decision to report this assault.” According to the court,

Doe alleges that he would have impeached Roe on this statement if he had the evidence that OSU had. Here are the facts Doe alleges OSU and its Administrators failed to disclose, “[s]pecifically: (a) Jane Roe reported that she was a victim of sexual assault only after she received notice that she was going to be expelled from school; (b) Jane Roe was permitted to remain in school solely because she claimed to be a victim of sexual assault; and (c) Jane Roe misrepresented to the Hearing Panel her motivation for bringing the allegations and the timing of her disclosure.”

The court allowed Doe’s claim to proceed against several OSU administrators involved in the hearing, holding that “[i]f the Administrators knew that Jane Roe lied about the timing of her accommodation at the hearing and permitted her testimony to stand unrebutted, that plausibly violated John Doe’s right to a fundamentally fair hearing.”

Perhaps most interestingly—because this is a highly contested question in many campus due process cases—the court held:

The right to some form of cross-examination in university expulsion hearings is a clearly established due process right when cross-examination is “essential to due process,” as in a case that turns on “a choice between believing an accuser and an accused.” Given the facts alleged, it is plausible that Doe’s right to cross examination was effectively denied by the Administrators’ failure to turn over critical impeachment evidence. [Internal citations omitted.]

Given that so many colleges have abandoned hearings in sexual misconduct cases in favor of a single-investigator model, where there is no cross-examination whatsoever, the court’s finding that some cross-examination may be a critical element of due process in such cases is an important one. We will continue to follow this case as it proceeds to the next stage of litigation.

Meanwhile, over at his blog Academic Wonderland, Professor KC Johnson of the recent oral arguments in a pending due process case at the University of California, San Diego (a case in which FIREfiled an amicus brief). As I reported last year, a judge in the Superior Court of California ruled that UC San Diego denied a student a fair hearing in a sexual misconduct case, in large part by severely curtailing the student’s right to confront his accuser and the witnesses against him. UC San Diego appealed that ruling to a California appellate court, which held oral arguments in the case on October 12. As Johnson writes, the three appellate judges considering the case seemed very skeptical of UC San Diego’s procedures, with one judge saying on the record that when he had finished reading all of the case briefs, “my comment was, ‘Where’s the kangaroo?’” We are still awaiting a ruling from the appellate court in this case.