Doe v. The University of Mississippi et al
Filing
60
ORDER granting in part and denying in part 33 Motion to Dismiss; granting in part and denying in part 33 Motion to Dismiss for Lack of Jurisdiction; terminating 41 Motion for Preliminary Injunction; terminating 42 Motion for Preliminary I njunction as set out in the Order. The parties are directed to contact the chambers of United States Magistrate Judge F. Keith Ball within 10 days of the entry of this Order to set the case for a status or case-management conference, as appropriate. Signed by Chief District Judge Daniel P. Jordan III on January 16, 2019.(SP)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ANDREW DOE
PLAINTIFF
V.
CIVIL ACTION NO. 3:18-CV-138-DPJ-FKB
THE UNIVERSITY OF MISSISSIPPI, ET AL.
DEFENDANTS
ORDER
Defendants in this sex-discrimination case ask the Court to dismiss Plaintiff Andrew
Doe’s Second Amended Complaint in its entirety. As detailed below, Defendants’ Motion to
Dismiss [33] is granted in part but otherwise denied.
I.
Facts and Procedural History
This case centers around a December 2, 2016 sexual encounter between Plaintiff Andrew
Doe and Bethany Roe, both undergraduate students at the University of Mississippi. While both
participants were intoxicated at the time, Doe and Roe agree that they had sexual intercourse on
December 2. Doe maintains that the encounter was consensual, but Roe’s friends called law
enforcement and reported the incident as a sexual assault. Roe underwent an examination at the
hospital that evening. A representative of the University’s Title IX Office appeared at the
hospital and opened a Title IX investigation into the incident.
Defendant Honey Ussery, the University’s Title IX Coordinator, conducted the Title IX
investigation and submitted a report to Defendant Tracy Murry, the Director of the University’s
Office of Conflict Resolution and Student Conduct. Murry notified Doe of the charges and
scheduled a disciplinary hearing before a panel of the University Judicial Council.
The Judicial Council held a hearing on March 31, 2017, and found Doe responsible. As
punishment, the Judicial Council expelled Doe from the University. Doe appealed, and on April
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27, 2017, the Appellate Consideration Board upheld the finding that Doe was responsible but
changed the sanction levied from expulsion to suspension until fall 2020.
On March 5, 2018, Doe filed this lawsuit alleging discrimination claims under Title IX,
due-process claims under 42 U.S.C. § 1983, and a state-law claim for breach of contract. He
filed an Amended Complaint on April 4, 2018, and a Second Amended Complaint on May 16,
2018, to add new defendants. The Second Amended Complaint [9] asserts claims against the
State of Mississippi; the University of Mississippi; the State Institutions of Higher Learning
(“IHL”); the Board of Trustees of the IHL; the Commissioner and all members of the Board of
Trustees of the IHL in their official capacities; Jeffrey S. Vitter, in his official capacity as the
Chancellor of the University of Mississippi; and Murry and Ussery, in their official and
individual capacities. Defendants moved to dismiss under Federal Rule of Civil Procedure
12(b)(1) and (6), and the matters raised have been fully briefed.1
II.
Standards
Defendants raise Eleventh Amendment immunity as to some claims, thus questioning the
Court’s subject-matter jurisdiction under Rule 12(b)(1). United States v. Tex. Tech. Univ., 171
F.3d 279, 285 n.9 (5th Cir. 1999). “The party seeking relief [in federal court] bears the burden of
establishing subject-matter jurisdiction.” Sawyer v. Wright, 471 F. App’x 260, 261 (5th Cir.
2012). “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
1
Doe moved for a preliminary injunction [41, 42] on June 22, 2018. The briefing on those
motions is stayed. Order [53].
2
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Defendants also challenge the sufficiency of Doe’s pleading under Rule 12(b)(6). When
considering a motion under that rule, the “court accepts ‘all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.’” Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th
Cir. 1999) (per curiam)). But “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To
overcome a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570. “Factual allegations must be enough to
raise a right to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. at 555 (citations and footnote omitted).
Generally, in considering a motion under Rule 12(b)(6), the Court “must limit itself to the
contents of the pleadings, including attachments thereto.” Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000). An exception to this rule exists for documents that
“are referred to in the plaintiff’s complaint and are central to h[is] claim.” Id. at 499. Likewise,
the Court may consider public records. Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995).
In this case, Defendants have attached a number of documents to support their motion to
dismiss. And, in his response, Doe incorporated additional documents he had previously filed to
support his motion for preliminary injunction. The documents the parties submitted include
various publications from the United States Department of Education, Ussery’s investigative
report, a transcript of the hearing, and other documents generated as part of the University’s
handling of the Title IX complaint against Doe. Some of these documents would be proper for
3
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the jurisdictional issues only. Others can be considered under both Rule 12(b)(1) and 12(b)(6).
In sum, the Court concludes that it can rule on the Rule 12(b)(6) motion without converting it
under Rule 12(d). See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.”).
III.
Analysis
A.
Eleventh Amendment Immunity
“The Eleventh Amendment grants a state immunity from suit in federal court by citizens
of other States and by its own citizens . . . .” Lapides v. Bd. of Regents of the Univ. Sys. of Ga.,
535 U.S. 613, 616 (2002) (citation omitted). Immunity also extends to state agencies that are
considered “arms of the state.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989). And
“a suit against a state official in his or her official capacity is not a suit against the official but
rather is a suit against the official’s office.” Id. at 71. Defendants contend that the Eleventh
Amendment bars Doe’s § 1983 and breach-of-contract claims against the State, the University,
IHL, the IHL Board Members and Commissioner, the Chancellor, and Murry and Ussery in their
official capacities.
1.
Section 1983 Claims
Starting with the § 1983 claims, Doe clarifies that he is not seeking monetary damages on
those claims from the State or arms of the State. Instead, he says he “is seeking declaratory and
injunctive relief against these Defendants with respect to the Constitutional claims.” Pl.’s Mem.
[50] at 13. But “[t]he Eleventh Amendment bars suit against a state entity, as opposed to a state
official, regardless of whether money damages or injunctive relief is sought.” Voisin’s Oyster
House, Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986). Because Doe offers no specific
4
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defense of his § 1983 claims against the State, the University, IHL, or the Board of Trustees of
the IHL, Defendants’ motion is granted as to those claims.
As to the claims for declaratory and injunctive relief against the individual defendants
named in their official capacities, Doe invokes the Ex parte Young doctrine. 209 U.S. 123
(1908). In Ex parte Young, the Supreme Court “created an exception to Eleventh Amendment
immunity for claims for prospective relief against state officials who have been sued in their
official capacities.” Nelson v. Univ. of Tex. at Dall., 535 F.3d 318, 320 (5th Cir. 2008). For a
state officer to face liability under Ex parte Young, that officer must have “some connection” to
the requested relief. Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014). Thus, a defendant
who “is not in a position to provide the requested relief” is not a proper party under the Ex parte
Young doctrine. Fairley v. Stalder, 294 F. App’x 805, 812 (5th Cir. 2008).
Defendants seem to acknowledge that Doe’s “requests for expungement, sealing [of his
records,] and re-enrollment” qualify as appropriate prospective relief under Ex parte Young.
Defs.’ Mem. [34] at 7; see Nelson, 535 F.3d at 324 (“[A] request for reinstatement is sufficient to
bring a claim within the Ex parte Young exception to Eleventh Amendment immunity, as it is a
claim for prospective relief designed to end a continuing violation of federal law.”). But
Defendants say “the only state official with any connection to such claim for relief is the
Chancellor of the University.” Defs.’ Mem. [34] at 7; see Air Evac EMS, Inc. .v Tex. Dep’t of
Ins., Div. of Worker’s Compensation, 851 F.3d 507, 519 (5th Cir. 2017) (“Thus, the Ex parte
Young analysis turns on the complaint’s context—including the challenged state law and
defendants—to determine whether ‘the state officer, by virtue of his office, has some connection
with the enforcement of the act.’” (quoting Ex parte Young, 209 U.S. at 157)).
5
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Doe responds by noting that he has alleged “the members of the Board of Trustees of
State Institutions of Higher Learning, the Commissioner of Higher Learning and both Tracy
Murry and Honey Ussery[] have duties and responsibilities related to policy development,
ensuring compliance with the law and the day-to-day administration of disciplinary
proceedings.” Pl.’s Mem. [50] at 15. But Doe has neither shown nor pleaded a plausible claim
that any of the official-capacity defendants other than Chancellor Vitter have the ability to grant
the relief requested. See El-Bawab v. Jackson State Univ., No. 3:15-CV-733-DPJ-FKB, 2018
WL 543040, at *3 (S.D. Miss. Jan. 24, 2018) (finding former University president was “the only
individual defendant who ever had authority to grant the prospective relief” plaintiff sought—“an
immediate promotion to full professor”).
Accordingly, Doe has not met his burden of establishing the Ex parte Young exception to
Eleventh Amendment immunity as to the § 1983 claims against Defendants C.D. Smith, Jr.,
Shane Hooper, Tom Duff, Dr. Ford Dye, Ann H. Lamar, Dr. Alfred E. McNair, Jr., Chip
Morgan, Hal Parker, Alan W. Perry, Christy Pickering, Dr. Doug W. Rouse, Dr. J. Walt Starr,
and Glenn F. Boyce—the Commissioner and members of the Board of Trustees of IHL—or the
official-capacity claims against Murry and Ussery. Those claims are dismissed for lack of
subject-matter jurisdiction.2 The Ex parte Young claim against Chancellor Vitter will be
addressed later in this Order.
2.
Breach-of-Contract Claim
As to the breach-of-contract claim against the State and arms of the State, Doe is correct
that Mississippi has “waive[d] its immunity from suit for a breach of contract when it enters into
2
The Commissioner and members of the Board of Trustees of IHL were named in their official
capacities only.
6
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a contract.” Pl.’s Mem. [50] at 33; see Cig Contractors, Inc. v. Miss. State Bldg. Comm’n, 399
So. 2d 1352, 1355 (Miss. 1981). But a state’s “general waiver of sovereign immunity . . . does
not constitute a waiver by the state of its constitutional immunity under the Eleventh Amendment
from suit in federal court.” Fla. Dep’t of Health & Rehab. Servs. v. Fla. Nursing Home Ass’n,
450 U.S. 147, 150 (1981). So “[w]hile Mississippi has waived its state sovereign immunity to
suit in state court for breach of contract, there is no unequivocal statement of its intent to also
waive its Eleventh Amendment immunity to suit in federal court.” Moore v. Univ. of Miss. Med.
Ctr., 719 F. App’x 381, 387–88 (5th Cir. 2018). Doe’s breach-of-contract claims against the
State Defendants are dismissed without prejudice for lack of subject-matter jurisdiction.
B.
Title IX Claims
Title IX provides: “No person . . . shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Defendants
primarily assert three arguments for dismissing the Title IX claims: (1) the University is the only
defendant properly characterized as an education program or activity that receives federal
funding and is therefore the only defendant potentially liable under Title IX; (2) monetary
damages are not available under Title IX; and (3) the Amended Complaint otherwise fails to
state a claim under Title IX. The Court concludes that Doe’s Title IX claim withstands
Defendants’ arguments.
The Supreme Court has held that Title IX is enforceable through an implied private cause
of action. Cannon v. Univ. of Chi., 441 U.S. 677 (1979). And as Spending Clause legislation,
“Title IX generates liability when the recipient of federal funds agrees to assume liability.”
Pederson v. La. State Univ., 213 F.3d 858, 876 (5th Cir. 2000). “For State and local
7
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governments, only the department or agency which receives the aid is covered. Where an entity
of state or local government receives federal aid and distributes it to another department or
agency, both entities are covered.” Alegria v. Tex., No. G-06-0212, 2007 WL 2688446, at *13
(S.D. Tex. Sept. 11, 2007), aff’d sub nom. Alegria v. Williams, 314 F. App’x 687 (5th Cir. 2009).
Finally, a party asserting claims under Title IX may seek monetary damages. Franklin v.
Gwinnett Cty. Pub. Sch., 503 U.S. 60, 73 (1992); see also Fryberger v. Univ. of Ark., 889 F.3d
471, 477 (8th Cir. 2018) (holding that monetary damages are available under Title IX).3
Many courts have allowed Title IX claims in the context of university disciplinary
proceedings, starting with the Second Circuit’s decision in Yusuf v. Vassar College, 35 F.3d 709,
714–15 (2d Cir. 1994). Defendants say, however, that “the Fifth Circuit has declined to do so”
and therefore this Court should likewise “decline to adopt such theories of liability.” Defs.’
Mem. [34] at 9–10 (citation omitted). For starters, Defendants cite no Fifth Circuit cases that
actually “declined to adopt” this theory. Id. And while the Fifth Circuit may not have directly
examined the question, it has reviewed several Title IX claims related to university disciplinary
proceedings. See Arceneaux v. Assumption Par. Sch. Bd., 773 F. App’x 175, 179 (5th Cir.
2018); Plummer v. Univ. of Hous., 860 F.3d 767 (5th Cir. 2017).
3
While Defendants say only the University is a funding recipient subject to Title IX, Doe
counters that the State Defendants—the State of Mississippi, IHL and the Commissioner and
members of its Board of Trustees, and the University—are all subject to liability under Title IX.
Without converting the Rule 12(b)(6) motion into a Rule 56 motion, the Court cannot
definitively say which State Defendants face Title IX liability. But the claim at least seems
plausible, so the Court will let the Title IX claim go forward against the defendants Doe says
Title IX covers: the State, the University, IHL, and the Commissioner and members of the
Board of Trustees of IHL.
8
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So too, district courts within the Fifth Circuit have consistently addressed this type of
Title IX claim. See, e.g., Klocke v. Univ. of Tex. at Arlington, No. 4:17-CV-285-A, 2018 WL
2744972, at *5 (N.D. Tex. June 7, 2018). Based on this history and the text of Title IX itself, the
statute applies in this context.
As for its standards, the Second Circuit developed “two general theories” under which “a
university can face Title IX liability for imposing discipline when gender is a motivating factor”:
the erroneous-outcome and selective-enforcement theories. Plummer, 860 F.3d at 777. Two
additional theories have also developed: the deliberate-indifference and archaic-assumptions
theories. Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018). Doe appears to assert claims
under the erroneous-outcome, selective-enforcement, and deliberate-indifference standards for
Title IX liability. Pl.’s Mem. [50] at 10.
Starting with erroneous outcome, Doe says “he was innocent of the charges that were
presented and wrongfully found to have committed an offense in [the University’s] disciplinary
proceedings.” Pl.’s Mem. [50] at 9. A “[p]laintiff[] who claim[s] that an erroneous outcome was
reached must allege particular facts sufficient to cast some articulable doubt on the accuracy of
the outcome of the disciplinary proceeding.” Yusuf, 35 F.3d at 715. Additionally, the plaintiff
must “allege particular circumstances suggesting that gender bias was a motivating factor behind
the erroneous finding. . . . Such allegations might include, inter alia, statements by members of
the disciplinary tribunal, statements by pertinent university officials, or patterns of decisionmaking that also tend to show the influence of gender.” Id. Defendants focus on the second
element—whether Doe has pleaded facts showing gender bias.
To begin, the Amended Complaint does include references to gender bias that are
conclusory and therefore must be ignored under Iqbal/Twombly. See, e.g., Am. Compl. [9] ¶¶ 6
9
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(“The University, Defendant Murry, and Defendant Ussery . . . exhibited a gender bias towards
Andrew Doe.”), 136 (“Doe was wrongly found to have committed sexual assault[,] and gender
bias was a motivating factor.”), 142 (“The totality of the circumstances establishes that the
Defendants acted out of a gender bias in reaching the erroneous outcome in this matter and have
demonstrated a pattern of inherent and systemic gender bias and discrimination against male
students who are accused of sexual misconduct at the University.”).
That said, Doe also pleaded facts, including some addressing Defendant Ussery’s conduct
as Title IX Coordinator. Under the University’s Title IX policies, Ussery was charged with
investigating the allegation and “compil[ing] all evidence, including the testimony of various
witnesses, into a report.” Sexual Misconduct Policy [42-14] at 8 (emphasis added). Yet the
Amended Complaint catalogs exculpatory evidence Ussery excluded:
Defendant Ussery’s written report did not address or summarize the
statements made by Bethany Roe to her physician or the police despite these
statements containing highly exculpatory information. The report did not
evidence any attempt by Ussery to interview the responding officers, persons who
attended the pre-game party with Roe and Andrew Doe, or persons the couple
spent time with at the party. Furthermore, the cab driver who took Roe and Doe
to the fraternity party and back to Doe’s apartment was not interviewed and there
was no assessment of any text messages or phone calls between Doe, Roe, the cab
driver, or Roe’s roommate. . . .
No recorded, handwritten or typed statements (sworn or unsworn) from
any of the witnesses were included with Defendant Ussery’s report, nor was a
statement from Andrew Doe. The report did not address nor contain Roe’s
medical records which clearly indicated Roe did not believe she was raped.
Similarly, copies of relevant and exculpatory text messages were not included.
10
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Am. Compl. [9] ¶¶ 67–68.4 Doe further criticizes Ussery by alleging that she referred to another
complainant as the “victim” during an investigation and once stated publicly that she had never
seen a case of “regret” sex. Id. ¶¶ 103–04.
Regarding the Judicial Council panel that handled his hearing, Doe says a female member
“had previously mocked the defenses raised by men accused of sexual assault.” Id. ¶ 72.
Finally, Doe also asserts that Defendants treated him less favorably than Roe for engaging in the
same conduct: “proceed[ing] with sexual activity while [one’s] companion was under the
influence of alcohol.” Id. ¶ 100. Doe avers that “when heterosexual couples engage in sexual
activity while [both are] under the influence of alcohol at the University of Mississippi, males
will be found [r]esponsible for sexual misconduct and females will be considered ‘victims.’” Id.
¶ 101.
Taken together, and viewed in the light most favorable to Doe, these allegations state a
plausible claim of gender bias in the outcome of his disciplinary hearing. While Defendants’
arguments might ultimately prevail, the Court is not willing to say there is no plausible claim.
Going back to the basics, Doe must “nudge[ his] claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 547. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added). This plausibility standard
“does not impose a probability requirement at the pleading stage; it simply calls for enough fact
to raise a reasonable expectation that discovery will reveal evidence of” the claim. Twombly,
550 U.S. at 556 (quoted in In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008)).
4
While such allegations, standing alone, might not be indicative of gender bias, see, e.g., Doe v.
Univ. of Colo., Boulder, 255 F. Supp. 3d 1064, 1074 (D. Colo. 2017), when considered with the
other averments in the Amended Complaint, the Court finds Doe clears the Rule 12(b)(6) hurdle.
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Having found that the claim survives under at least one recognized theory, the Court need not
address the deliberate-indifference and selective-enforcement theories.5
C.
Section 1983 Claims for Injunctive Relief against Chancellor Vitter
Doe pleaded § 1983 claims against Chancellor Vitter under the Ex parte Young doctrine
based on Fourteenth Amendment substantive and procedural due-process and equal-protection
rights. The Court will address each claim in turn.
1.
Procedural Due Process
Starting with procedural due process, the concept “imposes constraints on governmental
decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the
Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S.
319, 332 (1976). “[D]ue 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).
In Plummer, the Fifth Circuit examined whether two students received due process
during a university disciplinary proceeding regarding alleged sexual misconduct. 860 F.3d at
773. The Fifth Circuit noted that “[a] university is not a court of law, and it is neither practical
nor desirable it be one.” Id. (quoting Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 n.1 (6th
Cir. 2005)). It then applied Mathews:
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
5
Even if Doe had failed to state a claim, “a plaintiff’s failure to meet the specific pleading
requirements should not automatically or inflexibly result in dismissal of the complaint with
prejudice to re-filing.” Hart v. Bayer Corp., 199 F.3d 239, 248 n.6 (5th Cir. 2000) (citation
omitted). “Although a court may dismiss the claim, it should not do so without granting leave to
amend, unless the defect is simply incurable or the plaintiff has failed to plead with particularity
after being afforded repeated opportunities to do so.” Id. Here, Doe would have been given that
opportunity.
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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.
Id. (citing Mathews, 424 U.S. at 335). These are the Mathews factors.
As in Plummer, “the first and third Mathews factors are easily identified” in this case. Id.
“On the one hand, [Doe] ha[s] a liberty interest in [his] higher education [and] [t]he sanctions
imposed by the University could have a ‘substantial lasting impact on [his] personal li[f]e[],
educational and employment opportunities, and reputation[] in the community.’” Id. (quoting
Doe v. Cummins, 662 F. App’x 437, 446 (6th Cir. 2016)) (additional citations omitted). “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.” Id. So Doe’s due-process claim turns on “the second Mathews factor—the risk of
erroneously depriving [his] interests through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards.” Id. at 774.
In his Amended Complaint, Doe references seven procedural issues in the handling of his
disciplinary hearing.
(1) Doe contends that the manner in which the Judicial Council and Appellate
Consideration Board members are trained violated his due-process rights. See
Am. Compl. [9] ¶¶ 93–97, 138.
(2) He contends that Ussery “failed to conduct a thorough and impartial
investigation of the allegations brought against [him.]” Id. ¶ 4.
(3) Doe asserts that the manner and timing of the selection of the hearing panel
violated due process. Id. ¶¶ 70–72.
(4) He complains that he was not permitted to cross-examine any witnesses,
including Bethany Roe. Id. ¶ 74.
(5) He complains that his inability to subpoena witnesses violated due process.
Id.
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(6) He argues that the hearing panel’s deliberation was perfunctory. Id. ¶ 80.
(7) He says that the use of the preponderance-of-the-evidence standard fails to
conform to the requirements of due process. Id. ¶ 112.
The Court will address each alleged procedural shortcoming separately.
a.
Ussery’s Training Materials and Investigation
Doe’s first two due-process challenges flow from Ussery’s investigation, report, and
training materials. Similar issues were addressed in Plummer. There, the Fifth Circuit affirmed
summary judgment against two plaintiffs who were disciplined for an alleged sexual assault
despite evidence that the Title IX Coordinator had a conflict of interest and allegedly failed to
properly investigate. The court emphasized that under the second Mathews factor, the “amount
of process constitutionally required in state university disciplinary proceedings will vary in
accordance with the particular facts of each case.” Id. at 774 n.8.
Because the evidence of guilt in Plummer was overwhelming, the process was deemed
sufficient as a matter of law. As the Fifth Circuit explained, “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 [the plaintiffs’] interests or otherwise altered the outcome.” Id. at 774
(citing Mathews, 424 U.S. at 335). Accordingly, the plaintiffs failed to show that the issues
regarding the Title IX Coordinator “undermined the integrity of their proceedings.” Id. at 776.
This case is different for two main reasons. First, it is before the Court under Rule
12(b)(6), so the issue is plausibility rather than a lack of evidence. Second, the facts—as pleaded
and in the light most favorable to Doe—do not suggest overwhelming proof that Doe sexually
assaulted Roe. Thus, the amount of process due may be higher than in Plummer.
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Turning then to Doe’s arguments regarding Ussery, he says her investigation was flawed,
it resulted in an incomplete report that was presented to the Judicial Council as the official report
of the Title IX Coordinator, and the panel itself had been trained in a way that prejudiced Doe’s
ability to be heard. Starting with the investigation, Doe complains that he “did not meet with
Ussery regarding the matter and was never provided with any specifics regarding the allegations
by Ussery, nor was he asked to identify potential witnesses or submit any evidence,” and that
Ussery’s report excluded some relevant and exculpatory evidence. Am. Compl. [9] ¶ 65.
As to the training, Doe makes the following points: (1) the training material “provides
that just because an individual does not protest or resist sexual activity their silence and lack of
resistance does not constitute consent,” (2) it “provides that when both parties are intoxicated,
findings are to be made in favor of the complainant, who is typically female,” and (3) the
materials “advise the panel members that ‘victims’ sometimes withhold facts and lie about
details, question if they’ve truly been victimized[,] and ‘lie about anything that casts doubt on
their account of the event.’” Id. at 12; see Am. Compl. [9] ¶¶ 94–96; Pl.’s Mem. [48] at 14
(slightly mis-quoting Training Slides [42-18] at 21 (“The desire (sometimes) to increase their
credibility by leaving out or lying about anything that might cast doubt on their account of
events.”)).
Taken as a whole, the Court concludes that Doe has stated a plausible claim. This is a
consent-based case in which the victim did not appear before the hearing panel, yet there seems
to have been an assumption under Ussery’s training materials that an assault occurred. As a
result, there is a question whether the panel was trained to ignore some of the alleged
deficiencies in the investigation and official report the panel considered. Coupled with the
alleged deficiencies in the investigation, it is plausible that the scales were tipped against Doe to
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such a degree that further procedural safeguards may have lessened the risk of an erroneous
deprivation. Mathews, 424 U.S. at 335. These claims survive.
b.
Panel Selection
Doe complains that “[p]rior to the hearing, [he] was not informed that he had the right to
know the identity of the panel members or the right to challenge a panel member.” Am. Compl.
[9] ¶ 70. He says when he arrived for his hearing, “he learned that all panel members had not yet
been selected,” so “[t]he hearing was delayed in order for the University to find a third panel
member,” who “was presented with the case file for the first time” “[a]pproximately fifteen
minutes before the hearing began.” Id. ¶ 71. Doe asserts that “one of the female panel members
selected . . . to preside over his hearing had previously mocked the defenses raised by men
accused of sexual assault.” Id. ¶ 72. And he contends that “one of the panelists did not even
identify himself at the hearing” making it impossible for Doe to “reasonably assess the
appropriateness of [that] panel member[].” Pl.’s Mem. [48] at 21.
Doe is correct that, pursuant to the University’s Sexual Misconduct Policy, “the
complainant and respondent will have an opportunity to see a list of board members who will be
serving as fact-finders and request recusal of any they have reason to believe are biased” prior to
the hearing. Sexual Misconduct Policy [42-14] at 9. But “[t]he fact that a valid school policy . .
. was not followed is not by itself significant in determining whether procedural due process has
been violated.” Vann ex rel. Vann v. Stewart, 445 F. Supp. 2d 882, 888 (E.D. Tenn. 2006); see
also Brown v. Tex. A & M Univ., 804 F.2d 327, 335 (5th Cir. 1986) (“The failure of a state
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agency to comply with its internal regulations is insufficient as a matter of law to establish a
violation of Due Process, because constitutional minima nevertheless may have been met.”).6
But the presence of an allegedly biased panel member raises a due-process problem.
“[A] biased decisionmaker [is] constitutionally unacceptable.” Withrow v. Larkin, 421 U.S. 35,
47 (1975). This portion of the claim will go forward. And because some of the panel-selection
claim will proceed, the Court will allow the allegation regarding the panel member who did not
identify himself to go forward as well.
c.
Cross-Examination
Because neither Roe nor any other witnesses against Doe appeared at the hearing, he was
not permitted to cross-examine—either directly or through written questions submitted to the
hearing panel—the witnesses whose accounts of the evening led to his discipline. To assess the
possible impact of cross-examination, it is important to understand the factual context. Doe was
found responsible under the University’s Sexual Misconduct Policy, which requires consent for
all sexual activity and states that “an incapacitated person is not able to give consent.” Sexual
Misconduct Policy [42-14] at 4. The policy defines incapacitation as follows: “Someone is
incapacitated when he or she cannot understand who, what, when, where, why, or how, with
respect to the sexual interaction.” Id. at 5.
The parties agree that Doe and Roe were intoxicated on the night of their encounter, but
Roe’s level of intoxication—particularly as it relates to the “who, what, when, where, why, or
how” of the encounter—is less clear from the record before the hearing panel. Starting with the
6
Even in most criminal contexts, “it is within the discretion of the trial judge to withhold the list
of prospective jurors until the day of the trial.” United States v. Scallion, 533 F.2d 903, 913–14
(5th Cir. 1976), on reh’g, 548 F.2d 1168 (5th Cir. 1977). And by statute, advance disclosure is
mandated only in treason and capital-offense cases. 18 U.S.C. § 3432.
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police reports from the night of the fraternity party, Roe seemed to have some ability to
understand what was happening: she knew she had returned to Doe’s apartment after the party,
that they went into a bedroom, and that they had intercourse. Ussery Report [40-1] at 9, 11, 16.
But a few days later, Roe came to the police department with her parents and told police officers
that she “did not remember having sex with [Doe.]” Id. at 13. Roe later intimated to Ussery that
her drink may have been spiked at the pre-game party and claimed to not remember anything
after she left the fraternity party. Id. at 1–2.
“In almost every setting where important decisions turn on questions of fact, due process
requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly,
397 U.S. 254, 269 (1970). Yet the Fifth Circuit has not “determine[d] whether confrontation and
cross-examination would ever be constitutionally required in student disciplinary proceedings.”
Plummer, 860 F.3d at 775.
The Sixth Circuit has made that determination, recently noting that while “[t]he right to
cross-examine witnesses generally has not been considered an essential requirement of due
process in school disciplinary proceedings,” “[a]ccused students must have the right to crossexamine adverse witnesses ‘in the most serious of cases.’” Doe v. Univ. of Cincinnati, 872 F.3d
393, 400–01 (6th Cir. 2017) (quoting Flaim v. Med. College of Ohio, 418 F.3d 629, 636 (6th Cir.
2005)). Accordingly, the court held that “[i]f a case ‘resolves into a problem of credibility,
cross-examination of witnesses might . . . be[] essential to a fair hearing.’” Id. at 401 (quoting
Flaim, 418 F.3d at 641); see also Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018) (“[I]f a public
university has to choose between competing narratives to resolve a case, the university must give
the accused student or his agent an opportunity to cross-examine the accuser and adverse
witnesses in the presence of a neutral fact-finder.”).
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Defendants urge the Court to reject the Sixth Circuit’s approach to cross-examination in
the student disciplinary context, arguing that “[t]he Sixth Circuit’s blanket mandate . . . leaves no
room to apply the Mat[]hews factors to determine whether cross-examination is necessary in a
particular case.” Defs.’ Supp. Mem. [58] at 5. But the Court can consider the Sixth Circuit’s
reasoning on the value of cross-examination under the second Mathews factor—i.e., “the risk of
erroneously depriving” Doe’s interests by conducting the hearing without cross-examination, and
the “probable value, if any” of providing cross-examination.7 Plummer, 860 F.3d at 774.
Defendants also argue that cross-examination was not constitutionally required here
because Doe “admitted critical facts central to the determination” of the finding of responsibility
“and the fact-finder’s decision could have been adequately supported by uncontested facts, the
observations of the investigating officers, and Doe’s own statements.” Defs.’ Rebuttal [52] at 8.
Defendants apparently base this argument on Doe’s admission that Roe was intoxicated when
they had intercourse. According to Defendants, this admission rendered Doe responsible under
the Sexual Misconduct Policy. But Doe’s admission does not necessarily indicate that Roe was
incapacitated under the policy. In fact, Doe testified at the hearing that Roe was not stumbling
around and was coherent. Hearing Tr. [40-2] at 13.
His admission also falls short of the proof in Plummer, which influenced the Fifth Circuit
to find that the process in that case was sufficient. It is at least plausible in this he said/she said
case, that giving Doe an opportunity to cross-examine Roe could have added some value to the
hearing under the second Mathews factor. And while Defendants argue that requiring cross-
7
Defendants also say cross-examination was not necessary in this case because “the uncontested
allegations included in the Title IX report were sufficient to sustain a violation under the
University’s policy.” Defs.’ Mem. [34] at 17. By placing more significance on the contents of
Ussery’s report, Defendants merely bring the other problems with that report into focus.
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examination will significantly burden the University by making it unable “to process complaints
regarding alleged student misconduct whenever a witness or party declines to appear at a
hearing,” Defs.’ Supp. Mem. [58] at 3, the Sixth Circuit has held that due process would not
require cross-examination in every case, Doe, 872 F.3d at 400–01; see also Goldberg, 397 U.S.
at 270 (noting need for cross-examination “where governmental action seriously injures an
individual, and the reasonableness of the action depends on fact findings”). Regardless, Doe has
pleaded enough facts to surpass plausibility and permit discovery.
d.
Lack of Subpoena Power
Doe cites no relevant legal authority suggesting that “the University had subpoena power
or the authority to compel witnesses’ appearances at a disciplinary hearing.” Doe v. W. New
England Univ., 228 F. Supp. 3d 154, 179 (D. Mass. 2017); see Doe v. Univ. of Ky., 860 F.3d 365,
370 (6th Cir. 2017) (describing campus-disciplinary proceedings as “lack[ing] some of the due
process protections for a criminal trial, such as having an attorney cross-examine witnesses and
being able to subpoena witnesses”). He therefore fails to show Defendants violated his dueprocess rights in this regard. See Plummer, 860 F.3d at 773 (“A university is not a court of law,
and it is neither practical nor desirable it be one.” (quoting Flaim, 418 F.3d at 635 n.1)).
e.
Deliberation of Panel
Doe complains that the hearing panel “only asked three questions during the hearing,” it
deliberated for only “approximately 15 minutes before issuing an initial determination against”
him, and its determination letter “did not provide a rationale for the finding” of responsible nor
“offer an explanation for the severe sanction of expulsion.” Am. Compl. [9] ¶¶ 79–81. But he
cites no cases indicating that these complaints give rise to a due-process claim. Nor does he
apply these allegations to “the second Mathews factor—the risk of erroneously depriving [his]
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interests through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards.” Plummer, 860 F.3d at 774. The Court finds the allegations regarding
the panel’s deliberation do not state a due-process claim.
f.
Standard of Proof
Finally, Doe disputes the standard of proof used by the Judicial Council. The
University’s Sexual Misconduct Policy explains that “[t]he standard of proof for all cases
involving sexual misconduct will be based upon the University’s established standard of
preponderance of the evidence.” Sexual Misconduct Policy [42-14] at 8.
Doe says this preponderance standard violates due process; he raises a thorny issue. See
Doe v. DiStefano, No. 16-CV-1789-WJM-KLM, 2018 WL 2096347, at *6 (D. Colo. May 7,
2018) (noting unsettled nature of the law). The only circuit that appears to have addressed the
issue did so in an unpublished opinion that found no due-process violation when the university
used the preponderance standard in a school disciplinary proceeding. See Cummins, 662 F.
App’x at 449. But Judge Edith Jones made a forceful argument in her Plummer dissent that
hearings on alleged sexual misconduct are quasi criminal and have long-lasting impacts on the
accused. She therefore advocated for a more burdensome standard of review, noting that
“[e]levating the standard of proof to clear and convincing, a rung below the criminal burden,
would maximize the accuracy of factfinding.” Id. at 782 & n.11 (Jones, J., dissenting). The
majority in Plummer avoided the issue, noting that it had not been preserved for appeal. Id. at
772 n.5. Given the developing nature of the law, and the fact that other portions of this claim
survive Defendants’ Rule 12(b)(6) attack, the Court elects to carry this issue beyond the pleading
stage.
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2.
Substantive Due Process
“To state a substantive due process claim a plaintiff must show that the government’s
deprivation of a property interest was arbitrary or not reasonably related to a legitimate
governmental interest.” Williams v. Tex. Tech. Univ. Health Sciences Ctr., 6 F.3d 290, 294 (5th
Cir. 1993); see Pham v. Univ. of La. at Monroe, 194 F. Supp. 3d 532, 546 (W.D. La. 2016) (“The
substantive due process analysis asks whether Defendants’ conduct was so arbitrary as to shock
the conscience.”). A dismissed student can succeed on a substantive-due-process claim if he
shows “that the university’s decision was not careful and deliberate.” Guse v. Univ. of S.D., No.
08-4119, 2011 WL 1256727, at *13 (D.S.D. Mar. 30, 2011) (citing Schuler v. Univ. of Minn.,
788 F.2d 510, 516 (8th Cir. 1986)). While Doe may ultimately have a difficult time proving this
claim, in light of the allegations regarding the investigation and the fact that other portions of
Doe’s § 1983 claim are going forward, the Court denies the motion as to the substantive-dueprocess claim.
3.
Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment is ‘essentially a direction
that all persons similarly situated should be treated alike.’” Wood v. Collier, 836 F.3d 534, 538
(5th Cir. 2016) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). To
establish an equal-protection claim, “the plaintiff must prove that similarly situated individuals
were treated differently.” Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999). The question of
whether the plaintiff and the proposed comparator were similarly situated “is case-specific and
requires [the Court] to consider ‘the full variety of factors that an objectively reasonable . . .
decisionmaker would have found relevant in making the challenged decision.’” Lindquist v. City
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of Pasadena, 669 F.3d 225, 234 (5th Cir. 2012) (quoting Griffin Indus., Inc. v. Irvin, 496 F.3d
1189, 1208 (11th Cir. 2007)).
Doe argues that Defendants violated his rights under the Equal Protection Clause by
disciplining him for engaging in sexual intercourse with Roe while she was under the influence
of alcohol but failing to discipline Roe for engaging in sexual intercourse with him. He cites
Doe v. Miami University, 882 F.3d 479 (6th Cir. 2018), in support of his argument. There, the
Sixth Circuit found the plaintiff had stated an equal-protection claim under similar circumstances
as those presented here. The court reversed dismissal of the equal-protection claim because the
decisionmaker in that case “was operating under ‘the same set of operative facts’ when she
decided not to initiate the disciplinary process against” the female student. 882 F.3d at 596
(quoting Doe v. Ohio State Univ., 239 F. Supp. 3d 1048, 1083 (S.D. Ohio 2017)).
Defendants insist that Doe is distinguishable because the male student there “was
sufficiently intoxicated that he [could] not clearly remember what happened” in the sexual
encounter between himself and the female student, whereas she was sufficiently sober to recall
details of the encounter. Id. at 585–86. By contrast, Defendants argue that Doe claimed the
encounter was consensual and “relayed no memory impairment or other symptoms regarding a
lack of capacity.” Def.’s Reply [52] at 4. Thus, he and Roe were not similarly situated.
While Defendants may ultimately prevail, at this point, the Court lacks sufficient
information to assess whether Doe and Roe were similarly situated. As it is, Doe has alleged that
he and Roe drank together at his fraternity party; that Roe reported to her doctor that she and Doe
“were both drunk and that she felt it was a mutual decision between both of them” to have sex;
and that the University pursued disciplinary action against him but not Roe. Ussery Report [40-
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1] at 11. These allegations are sufficient at the Rule 12(b)(6) stage. The motion to dismiss is
denied as to the equal-protection claim.
D.
Individual-Capacity Claims against Murry and Ussery
Finally, the Court turns to the individual-capacity claims against Murry and Ussery for
breach of contract and under § 1983 for violation of Doe’s due-process and equal-protection
rights.
1.
Breach-of-Contract Claim
Doe alleges the existence of a contract between him and “[t]he University, IHL, through
its Board of Trustees[,] and the State.” Am. Compl. [9] ¶ 182. There is no allegation that he had
a contractual relationship with Murry or Ussery in their individual capacities. To the extent Doe
attempted to plead a breach-of-contract claim against those Defendants, it is dismissed with
prejudice.
2.
Section 1983 Claims
Finally, Murry and Ussery assert qualified immunity as to Doe’s individual-capacity
§ 1983 claims against them.
An official sued under § 1983 is entitled to qualified immunity unless it is shown
that the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct. And a defendant cannot be said
to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it. In other words, existing precedent must
have placed the statutory or constitutional question confronted by the official
beyond debate. In addition, [the Supreme Court] ha[s] repeatedly told courts . . .
not to define clearly established law at a high level of generality, since doing so
avoids the crucial question whether the official acted reasonably in the particular
circumstances that he or she faced.
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (citations omitted).
Taking the allegations from the Amended Complaint as true, and assuming Murry or
Ussery violated Doe’s constitutional rights, Doe does not cite a single case that would put these
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Defendants on notice that their conduct violated clearly established law. Ussery and Murry are
entitled to qualified immunity.
IV.
Conclusion
The Court has considered all arguments. Those not specifically addressed would not
have changed the outcome. For the foregoing reasons, Defendants’ Motion to Dismiss [33] is
granted as to all claims against all Defendants other than (1) the Title IX claims against the
University; IHL; the Board of Trustees of the IHL; the State of Mississippi; and the Chancellor,
IHL Commissioner, and IHL Board Members in their official capacities, and (2) those portions
of the claim against Chancellor Vitter under Ex parte Young discussed herein.
Given that Plaintiff’s Motions for Preliminary Injunction [41, 42] have not been fully
briefed and the Court has now narrowed the substantive issues, those motions are terminated
without prejudice. If Doe wishes to seek preliminary injunctive relief, he may file a new motion
that addresses the substantive claims that survived Defendants’ motion to dismiss. The parties
are also directed to contact the chambers of United States Magistrate Judge F. Keith Ball within
10 days of the entry of this Order to set the case for a status or case-management conference, as
appropriate.
SO ORDERED AND ADJUDGED this the 16th day of January, 2019.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE
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