Lee v. University of New Mexico et al
Filing
107
MEMORANDUM OPINION AND ORDER by District Judge James O. Browning granting the Defendants' Motion for Summary Judgment 70 and dismissing the Plaintiff's due process claims. (kw)
Case 1:17-cv-01230-JB-LF Document 107 Filed 11/16/20 Page 1 of 116
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
J. LEE,
Plaintiff,
vs.
No. CIV 17-1230 JB/LF
THE UNIVERSITY OF NEW MEXICO,
a public university, THE BOARD OF
REGENTS OF THE UNIVERSITY OF
NEW MEXICO, individually and in their
official capacities, ROBERT G. FRANK,
individually and in his official capacity,
LAURA VELE BUCHS, individually and in
her official capacity, HEATHER COWAN,
individually and in her official capacity,
FRANCIE CORDOVA, individually and in
her official capacity, MEGAN CHIBANGA,
individually and in her official capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Defendants’ Motion for Summary
Judgment, filed February 6, 2020 (Doc. 70). The Court held a hearing on September 28, 2020.
See Clerk’s Minutes at 1, filed September 28, 2020 (Doc. 106). The primary issues are: (i) whether
Plaintiff J. Lee, a University of New Mexico (“UNM”) doctoral student, admitted to the UNM
Police Department (“UNMPD”) that he engaged in nonconsensual sexual contact with a UNM
freshman, Jane Roe,1 while Roe was incapacitated from alcohol; (ii) whether, during UNM’s
investigation into the alleged sexual assault, UNM relied on a credibility determination regarding
1
The Defendants refer to this woman as Jane Roe “to protect the privacy of the young
woman who was the victim of an alleged sexual assault.” Memorandum Brief in Support of
Defendants’ Motion for Summary Judgment at 2, n.5, filed February 6, 2020 (Doc. 71). The Court
therefore will refer to the alleged victim as Roe throughout this Memorandum Opinion and Order.
Case 1:17-cv-01230-JB-LF Document 107 Filed 11/16/20 Page 2 of 116
Roe’s statements in making its finding that Lee had violated UNM’s sexual misconduct policies;
(iii) whether the Defendants, UNM, the Board of Regents of UNM, and current UNM President
Garnett S. Stokes,2 violated Lee’s due process rights by expelling him from UNM without
providing him with a hearing; (iv) whether the Defendants violated Lee’s due process rights by
prohibiting Lee from cross-examining witnesses; (v) whether the Defendants violated Lee’s due
process rights by failing to provide him with access to evidence considered during the
investigation; (vi) whether the Defendants violated Lee’s due process rights by employing an
inquisitorial model of factfinding, where the investigator, Ms. Laura Vele Buchs, both presided
over the investigation and determined that Lee violated UNM’s sexual misconduct policies; (vii)
whether the Defendants violated Lee’s due process rights, because Buchs held actual bias against
Lee; (viii) whether the Defendants violated Lee’s due process rights, because Buchs applied a
preponderance-of-the-evidence standard when she decided that Lee violated UNM’s sexual
misconduct policies; and (ix) whether the Defendants violated Lee’s due process rights ,because
they did not notify him that the UNM Dean of Students (“DOS”) would consider his provision of
alcohol to minors when it decided that expulsion from UNM was an appropriate sanction. The
Court concludes that the Defendants have not violated Lee’s due process rights, because: (i) Lee’s
statements to the UNMPD constitute admissions to having nonconsensual sexual contact with Roe
while she was incapacitated; (ii) Roe’s credibility was not at issue, because the UNM Office of
Equal Opportunity (“OEO”) relied almost exclusively on Lee’s admissions to the UNMPD that he
2
The Court previously dismissed Laura Vele Buchs, Heather Cowan, Francie Cordova, and
Megan Chibanga, on qualified immunity grounds. See Lee v. Univ. of New Mexico, 449 F. Supp.
3d 1071, 1080 (D.N.M. 2020)(Browning, J.). On July 21, 2020, the parties filed a Stipulation of
Dismissal of Plaintiff’s Title IX Claim, in which they agreed to dismiss Lee’s Title IX claim. See
Stipulation of Dismissal of Plaintiff’s Title IX Claim, filed July 21, 2020 (Doc. 96).
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had engaged in nonconsensual sex with Roe while she was incapacitated in determining that Lee
violated UNM policies; (iii) the Defendants provided Lee with at least four in-person opportunities
to be heard on the charges against him -- including a hearing with counsel present -- as well as
opportunities to provide written statements characterizing his conduct; (iv) the Due Process Clause
of the Fourteenth Amendment of the Constitution of the United States of America does not require
the Defendants to allow Lee to cross-examine witnesses in any form -- because Roe’s credibility
is not at issue, this would be a fruitless exercise; (v) the Defendants provided Lee with summaries
of all evidence which the OEO considered in its decision that Lee violated UNM policy, including
detailed synopses of interviews with witnesses, and allowed Lee to supplement the evidentiary
record; (vi) the inquisitorial model of factfinding satisfies the Due Process Clause in university
disciplinary proceedings, because non-adversarial models of truth seeking, coupled with
opportunities to challenge a single factfinder’s decision, are an appropriate means of deciding
critical administrative matters; (vii) Lee has not overcome the Court’s presumption that Buchs was
fair and impartial during her investigation, and, even if Buchs is biased towards Lee, Lee had a
separate administrative hearing with the DOS, as well as opportunities to appeal both Buchs’
decision and the DOS’ sanctioning decision to UNM’s President and Board of Regents; (viii) the
preponderance-of-the-evidence standard satisfies the Due Process Clause, because university
disciplinary proceedings are not quasi-criminal; and (ix) the Due Process Clause does not require
universities to provide students notice of every factor that they consider in determining appropriate
sanctions for violations of university policies; regardless, actual notice in advance of Lee’s
sanctions hearing would have been impracticable because (a) he admitted during the sanctions
hearing that he provided alcohol to minors; (b) Lee’s previous statements to the OEO and the
UNMPD indicated that he had provided alcohol to minors; (c) and the DOS gave Lee constructive
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notice that it would consider his provision of alcohol to minors when it informed Lee before the
hearing that the hearing officer would consider evidence presented in the hearing, along with
evidence collected during the OEO investigation, when setting his sanction.
Accordingly, the
Court grants the Defendants’ Motion for Summary Judgment.
FACTUAL BACKGROUND
On February 25, 2016, the OEO found that Lee had violated UNM’s sexual misconduct
policies. See Defendants’ MSJ Memo ¶ 19, at 9 (asserting this fact); FLOD at 3. On July 6, 2016,
Lee received notice that he has been expelled from UNM because he had violated UNM’s sexual
misconduct polices. DOS Sanctions Letter at 22, dated July 6, 2016, filed February 6, 2020 (Doc.
71-3)(“DOS Sanctions Letter”). See Defendants’ MSJ Memo ¶ 25, at 11 (asserting this fact).
Lee’s administrative challenges to the OEO’s finding and his subsequent expulsion ultimately
failed. See Defendants’ MSJ Memo ¶ 20, at 9 (asserting this fact); Minutes of the Regular Meeting
of the Board of Regents of UNM at 14 (dated May 13, 2016), filed February 6, 2020 (Doc. 713)(“Meeting Minutes”).
1.
The “Dear Colleague” Letter.
On April 4, 2011, the United States Department of Education (“USDOE”) issued a letter
providing school districts, colleges, and universities (“schools”) with guidance on how to meet
their obligations under Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §§
1681 et seq., and its implementing regulations, 34 C.F.R. § 106.3 See United States Department
3
Lee attaches a copy of the Dear Colleague Letter to his Response, and includes additional
material facts related to the Dear Colleague Letter. See Response at 11. The Defendants do not
dispute Lee’s characterization of the Dear Colleague Letter. See Reply at 10 (admitting this fact).
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the response will be deemed undisputed
unless specifically controverted.”). The Court, therefore, concludes that the Dear Colleague
Letter’s contents are not in dispute, and summarizes the Dear Colleague Letter to the extent its
contents are relevant to the Court’s analysis.
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of Education Office of Civil Rights Letter at 1 (dated April 4, 2011), filed March 23, 2020 (Doc.
76-6)(“Dear Colleague Letter”); id. at 1 n.1 (identifying the Dear Colleague Letter as a significant
guidance document). The Dear Colleague Letter advises that Title IX prohibits sex discrimination
in education programs, and that sexual harassment -- including sexual violence -- is a form of sex
discrimination. See Dear Colleague Letter at 1. Sexual violence, the Dear Colleague Letter states,
includes “physical sexual acts perpetrated against a person’s will or where a person is incapable
of giving consent due to the victim’s use of drugs or alcohol,” or where a person cannot consent
“due to an intellectual or other disability.” Dear Colleague Letter at 1. The Dear Colleague Letter
next lists acts of sexual violence, including “rape, sexual assault, sexual battery, and sexual
coercion.” Dear Colleague Letter at 1-2.
The Dear Colleague Letter advises schools regarding grievance procedures for sex
discrimination complaints. See Dear Colleague Letter at 8 (citing 34 C.F.R. § 106.8(b)). The Dear
Colleague Letter instructs schools that Title IX permits, but does not require, schools to utilize
separate grievance procedures for sex discrimination complaints and other student disciplinary
complaints. See Dear Colleague Letter at 8. The Dear Colleague Letter continues that, although
grievance procedures “may include voluntary informal mechanisms (e.g., mediation) for resolving
some types of sexual harassment complaints, . . . it is improper for a student who complains of
harassment to be required to work out the problem directly with the alleged perpetrator . . . .” Dear
Colleague Letter at 8; id. (“[I]n cases involving allegations of sexual assault, mediation is not
appropriate even on a voluntary basis.”). The Dear Colleague letter accordingly urges schools to
state in their grievance procedures that the school will not employ mediation to resolve sexual
assault complaints. See Dear Colleague Letter at 8; Student Handbook at 8 (“The options of
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mediation and informal disposition . . . are not available when the accused student has been found
to have engaged in prohibited discrimination . . . .”); OEO Discrimination Claims Procedure at 3.
The Dear Colleague Letter emphasizes that schools must provide “a complainant a prompt
and equitable resolution” under Title IX. Dear Colleague Letter at 8. The Dear Colleague Letter
lists “elements that are critical to achieve compliance” with Title IX’s requirements:
Notice to students, parents of elementary and secondary students, and
employees of the grievance procedures, including where complaints may be filed;
Application of the procedures to complaints alleging harassment carried out
by employees, other students, or third parties;
Adequate, reliable, and impartial investigation of complaints, including the
opportunity for both parties to present witnesses and other evidence;
Designated and reasonably prompt time frames for the major stages of the
complaint process;
Notice to parties of the outcome of the complaint; and
An assurance that the school will take steps to prevent recurrence of any
harassment and to correct its discriminatory effects on the complainant and others,
if appropriate.
Dear Colleague Letter at 9.
Subsequently, the Dear Colleague Letter expands on several of these elements. See Dear
Colleague Letter at 9-14. First, student grievance procedures for resolving sex discrimination
claims “should be . . . easily understood, easily located, and widely distributed” as well as
“prominently posted on school Web sites” and “sent electronically to all members of the school
community . . . .” Dear Colleague Letter at 9. See Student Handbook at 7; OEO Discrimination
Claims Procedure at 4.
Second, the Dear Colleague Letter discusses how schools should ensure “adequate,
reliable, and impartial investigation of complaints.” Dear Colleague Letter at 9. The Dear
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Colleague Letter notes that although sexual misconduct under Title IX may constitute a criminal
violation, standards for criminal violations differ from sex discrimination claims; thus, an activity
may still violate Title IX even if it is not criminal. See Dear Colleague Letter at 9. Furthermore,
the Dear Colleague Letter insists that schools still must investigate sex discrimination claims under
Title IX even if a criminal investigation is underway. See Dear Colleague Letter at 10. The Dear
Colleague Letter continues that schools should inform complainants of their right to file a criminal
complaint, and advises schools not to discourage complainants from filing criminal complaints.
See Dear Colleague Letter at 10.
The Dear Colleague Letter counsels schools that a “clear and convincing” evidentiary
standard is “inconsistent with the standard of proof established for violations of the civil rights
laws, and [is] thus not equitable under Title IX.” Dear Colleague Letter at 11. Consequently, the
Dear Colleague Letter instructs schools to apply a preponderance-of-the-evidence standard when
investigating sex discrimination claims. See Response at 11 (asserting this fact); Reply at 10
(admitting this fact); Dear Colleague Letter at 10-11 (citing Desert Palace, Inc. v. Costa, 539 U.S.
90, 99 (2003); Steadman v. SEC, 450 U.S. 91, 98-102 (1981); Price Waterhouse v. Hopkins, 490
U.S. 228, 252-55 (1989); Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007)). See also
Deborah L. Brake, Fighting the Rape Culture Wars Through the Preponderance-of-the-evidence
Standard, 78 Mont. L. Rev. at 128 (concluding that “most universities were already using this
standard of proof” in 2011 and “citing multiple studies showing that well over half of American
colleges and universities used a preponderance-of-the-evidence standard for sexual assault
adjudications).
Next, the Dear Colleague Letter urges schools to provide the parties “an equal opportunity
to present relevant witnesses and other evidence” throughout the investigation. Dear Colleague
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Letter at 11. For example, “if a school chooses to allow parties to have their lawyers participate
in the proceedings, it must do so equally for both parties.” Dear Colleague Letter at 12. Moreover,
the Dear Colleague Letter “strongly discourages schools from allowing the parties personally to
question or examine each other during the hearing” because such questioning “may be traumatic
or intimidating, thereby possibly escalating or perpetuation a hostile environment.”
Dear
Colleague Letter at 12. See MOO, 449 F. Supp. at 1071 (“[T]he Dear Colleague letter encourages
colleges and universities to limit cross-examination in . . . circumstances[]” involving “sexual
assault” accusations.); Bd. of Regents Admissions at 5 (quoting the same passage in the Dear
Colleague Letter). Further, the Dear Colleague Letter encourages schools to provide an appeals
process. See Dear Colleague Letter at 12; OEO Discrimination Claims Procedure at 4. If schools
provide an appeals process, they “must do so for both parties,” and “must maintain documentation
of all proceedings.” Dear Colleague Letter at 12. See OEO Discrimination Claims Procedure at
4.
The Dear Colleague Letter next delineates qualifications for persons involved in a school’s
grievance procedures. See Dear Colleague Letter at 12. First, they should have “training or
experience in handling complaints of sexual harassment and sexual violence” including
“applicable confidentiality requirements.” Dear Colleague Letter at 12. Further, in sexual
violence cases, the factfinder should have specific training regarding sexual violence -- for
example, “if an investigation or hearing involves forensic evidence, that evidence should be
reviewed by a trained forensic examiner.” Dear Colleague Letter at 12 n.30. Finally, all “conflicts
of interest between the fact-finder or decision-maker and the parties should be disclosed.” Dear
Colleague Letter at 12. The Dear Colleague Letter insists that schools “must provide due process
to the alleged perpetrator[]” but “should ensure that steps taken to accord due process rights to the
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alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the
complainant.” Dear Colleague Letter at 12
Third, the Dear Colleague Letter expands upon its instruction that schools should provide
“designated and reasonably prompt time frames.” Dear Colleague Letter at 12. The Dear
Colleague Letter announces that school grievance procedures should detail time frames for: (i) the
school’s investigation; (ii) the school will provide the parties with the complaint’s outcome; and
(iii) when the parties may file an appeal. See Dear Colleague Letter at 12. Although investigations
take sixty days on average, the timeline “will vary depending on the complexity of the investigation
and the severity and extent of the harassment.” Dear Colleague Letter at 12.
Finally, the Dear Colleague Letter discusses its requirement that schools should provide
“notice of outcome.” Dear Colleague Letter at 13. Schools “must notify parties in writing”
regarding the outcome of the complaint and any subsequent appeal. Dear Colleague Letter at 13.
Moreover, under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g) (“FERPA”),
schools may disclose information about student sanctions where the sanction directly relates to the
complainant; for example, if the school orders an accused student to refrain from contacting the
complainant. See Dear Colleague Letter at 13. The Dear Colleague Letter also suggests education
and prevention tactics schools may employ, including education programs. See Dear Colleague
Letter at 14. The USDOE has since rescinded the Dear Colleague Letter. See MOO, 449 F. Supp.
at 1129-30.4
4
In the MOO, the Court explained that
In November 2018, the Department of Education’s Office of Civil Rights
issued a notice of proposed rulemaking on proper evidentiary standards. See
Nondiscrimination on the Basis of Sex in Education Programs or Activities
Receiving Federal Financial Assistance, 83 Fed. Reg. 61462-01 (proposed Nov. 29,
2018). While not entirely repudiating the preponderance standard, the Department
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2.
The Alleged Sexual Assault.
In the fall of 2015, Lee was a thirty-one-year-old graduate student at UNM. See Defendants’
MSJ Memo ¶ 1, at 2 (asserting this fact)(citing Deposition of Jong Hoon Lee at 14:1-21 (dated
August 30, 2019), filed February 6, 2020 (Doc. 71-1)(“Lee Depo”); id. at 15:9 to 17:23).5 Lee
lived in student housing at UNM -- Lobo Village -- and had three roommates. See Defendants’
MSJ Memo ¶ 1, at 2 (asserting this fact)(citing Lee Depo. at 14:1-21; id. at 15:9-17:23).6 John
Goodnight, who was nineteen years old, was one of Lee’s roommates. See Defendants’ MSJ
Memo ¶ 1, at 2 (asserting this fact)(citing Lee Depo. at 14:1-21; id. at 15:9-17:23).7 Lee went with
of Education proposed to limit its application, and suggested that, in reaching a
determination regarding responsibility, the University must apply either the
preponderance-of-the-evidence standard or the clear and convincing evidence
standard. The recipient may, however, employ the preponderance-of-the-evidence
standard only if the recipient uses that standard for conduct code violations that do
not involve sexual harassment but carry the same maximum disciplinary sanction.
The recipient must also apply the same standard of evidence for complaints against
students as it does for complaints against employees, including faculty. 83 Fed.
Reg. 61462-01, 61477.
MOO, 449 F. Supp. at 1129-30.
5
Lee, as he does with nearly all facts in the Defendants’ MSJ Memo, purports to dispute
the facts detailed in Defendants’ MSJ Memo ¶ 1, at 2, as “irrelevant and immaterial because [they]
do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response to Defendants’ Motion for Summary Judgment at 2-3, filed March
23, 2020 (Doc. 76)(citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986)). Rule 401
of the Federal Rules of Evidence states that evidence is relevant if it “has any tendency to make a
fact more or less probable than it would be without the evidence” and that fact “is of consequence
in determining the action.” Fed. R. Evid. 401(a)-(b). “Irrelevant evidence is not admissible.” Fed.
R. Evid. 402. The Court has previously held, however, that a “relevance argument similarly does
not dispute the fact” and that “relevance is a legal argument that is best left for the Analysis
section” of the opinion. SEC v. Goldstone, No. CIV 12-0257, 2015 WL 5138242, at *27 n.95
(D.N.M. Aug. 22, 2015)(Browning, J.). Further, Lee’s background at UNM is relevant, because
he argues that UNM violated his due process rights in a myriad of ways when UNM expelled him.
See Response at 15-30.
6
For the reasons stated in n.5, supra, the Court considers this fact.
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Goodnight to an event at UNM’s anthropology museum, Maxwell Museum, on the evening of
September 18, 2015. See Defendants’ MSJ Memo ¶ 2, at 2 (asserting this fact)(citing Lee Depo.
at 23:19-24:25; id. at 27:1-17). 8 Goodnight planned to meet Roe, a nineteen-year-old freshman at
UNM, at the event. See Defendants’ MSJ Memo ¶ 2, at 2 (asserting this fact)(citing Lee Depo. at
23:19-24:25; id. at 27:1-17). After the event, Lee, Goodnight, and Roe returned to Lobo Village
together. See Defendants’ MSJ Memo ¶ 2, at 2 (asserting this fact)(citing Lee Depo. at 23:1924:25; id. at 27:1-17). Later that evening, the UNMPD received a 911 call from Roe, who had
locked herself in her car. See Defendants’ MSJ Memo ¶ 3, at 2 (asserting this fact)(citing State of
New Mexico Supplemental Report at 1 (dated September 18, 2015), filed February 6, 2020, (Doc.
70-1)(“Fisher Supp. Rpt.”)).9 UNMPD Officer Michael Fisher arrived at Lobo Village at 10:21
7
For the reasons stated in n.5, supra, the Court considers this fact.
8
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in Defendants’ MSJ Memo ¶ 1, at 2, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 3 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Further, Lee’s initial meeting with Roe is relevant to Lee’s claim that he
did not know the identity of witnesses interviewed during the OEO investigation. See Response
at 14.
9
Lee contends that there are disputed facts “whether Plaintiff was locked in her car or if
she locked herself in the car.” Response at 3 (citing Jong Hoon Lee OEO Statement at 13 (no
date), filed February 6, 2020 (Doc. 71-2)). The Lee OEO Statement does not dispute whether Roe
locked herself in her car. See Lee OEO Statement at 13. The Court, therefore, finds this fact
admitted. See D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the Memorandum will be
deemed undisputed unless specifically controverted.”). Lee also disputes these facts as “irrelevant
and immaterial because [they] do not go to whether Plaintiff’s due process rights were violated
and whether such violations prejudiced Plaintiff.” Response at 3 (citing Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 249 (1986)). The Court reiterates its previous description of the standard
it applies to relevance disputes, see n.5, supra. That Roe locked herself in her car and called the
police is relevant, because it was included in the police reports upon which the OEO relied in
making its sexual misconduct finding. See Preliminary Letter of Determination at 27, filed
February 6, 2020 (Doc. 71-2)(“PLOD”)(explaining that the police report states that “upon arrival
Complainant was locked in her vehicle, ‘intoxicated and not able to stand up,’’[Roe’s] speech was
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p.m., where he interviewed both Goodnight and Lee. See Defendants’ MSJ Memo ¶ 3, at 2
(asserting this fact); Response at 3 (admitting this fact). Fisher interviewed Goodnight and Lee,
recorded those interviews, and documented them in a written report. See Defendants’ MSJ Memo
¶ 3, at 2 (asserting this fact)(citing Fisher Supp. Rpt. at 1).10 After the interview, the UNMPD
transported Lee to the police station, where Lee participated in another interview that was audiorecorded and documented in a written police report. See Defendants’ MSJ Memo ¶ 3, at 2
(asserting this fact); UNMPD Felony Supplemental Report at 36 (dated Oct. 5, 2015), filed Feb.
6, 2020 (Doc. 71-1)(“UNMPD Felony Supplemental Report”).11
slurred and there was an odor of alcoholic beverage coming from inside the vehicle’”)(quoting
Fisher. Supp. Rpt.).
10
Lee purports to dispute whether “Office Fisher documented any taped interviews with
Plaintiff and Mr. Goodnight in a police report.” Response at 3. Lee continues that “Defendants
cite no evidence demonstrating Officer Fisher’s police report is a transcription of his taped
interviews with Plaintiff and Mr. Goodnight . . . .” Response at 3. Lee acknowledges that Fisher
interviewed Goodnight and Lee on September 18, 2015 after the alleged sexual assault. See Lee
Depo. at 705:5-24; id. at 74:10-77:19. Moreover, Fisher’s report indicates that his “contact with
Lee and Goodnight was recorded on my department voice recorder.” Fisher Supp. Rpt. at 2. The
Defendants aver that Fisher “recorded” his interviews with Lee and Goodnight, and subsequently
“documented” them in the report. Defendants’ MSJ Memo MSJ ¶ 3, at 2. The Defendants do not
allege that Officer Fisher’s report is a transcription of his interviews with Lee and Goodnight.
Defendants’ MSJ Memo MSJ ¶ 3, at 2. The Defendants, however, provided an audio recording
and transcript of Fisher’s interview with Lee. See Transcript of Audio Recording Labeled: Ex. C1 -- Audio Recording of Lobo Village Interview of Jong Lee at 31 (undated), filed February 6,
2020 (Doc. 71-1)(certifying the audio quality as “fair”). Lee cites to no evidence demonstrating
that Fisher’s report does not “document[]” his conversations with Lee and Goodnight. Defendants’
MSJ Memo ¶ 3, at 2. See Response at 3; Fisher Supp. Rpt. at 2. The Court, therefore, concludes
that there is no dispute whether Fisher’s report documented his interviews with Lee and Goodnight.
See Fisher Supp. Rpt. at 2; D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the
Memorandum will be deemed undisputed unless specifically controverted.”).
11
Lee again, as he does with nearly all facts in the Defendants’ MSJ Memo, disputes the
facts in the Defendants’ MSJ Memo ¶ 3, at 2, as “irrelevant and immaterial because [they] do not
go to whether Plaintiff’s due process rights were violated and whether such violations prejudiced
Plaintiff.” Response at 3 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986)). The
Court reiterates its previous description of the standard it applies to relevance disputes, see n.5,
supra. Lee notes that this fact “references evidence not considered by the OEO,” including “the
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3.
Lee’s Conversations with the Police.12
UNMPD Felony Supplemental Report, and therefore should not be considered by this Court.”
Response at 3. First, the PLOD notes that Lee “went to the police station in a police vehicle, on
[his] own accord to make [a] statement[]” after his interview with Fisher. PLOD at 22, 28. The
PLOD also states that “a [UNMPD] Significant Events Form (dated September 18, 2015), a State
of New Mexico Uniform Incident Report (dated September 18, 2015), and a State of New Mexico
Supplemental Report (dated September 18, 2015) are of record.” PLOD at 16. It is unclear
whether the OEO specifically considered Lee’s police station interview; the UNMPD summarizes
this interview in a police report titled “University of New Mexico Police Department Felony
Supplemental Record.” UNMPD Felony Supplemental Report at 36. “In a civil case, police
reports may be admissible as public records under rule 803(8)(a)(ii) of the Federal Rules of
Evidence.” Dorato v. Smith, 108 F. Supp. 3d 1064, 1071 n. 6 (D.N.M. 2015)(Browning, J.). Here,
the Court discusses only the portions of the UNMPD Felony Supplemental Report that include the
officer, Detective R. Duren’s first-hand observations, as well his interviews with Lee. See Dorato
v. Smith, 108 F. Supp. 3d at 1071 n.6; Walker v. Spina, 2018 WL 6519133, at *15 (D.N.M. Dec.
11, 2018)(Browning, J.)(admitting a police report under rules 803(8)(a)(iii) and 801(d)(2)). Lee
does not raise hearsay objections about the Court’s consideration of the UNMPD Felony
Supplemental Report. See Response at 4-5. Lee also argues that the Court should not consider
statements from his deposition because he argues this deposition is “evidence not considered by
the OEO . . . and, therefore, should not be considered by this Court.” Response at 4 (citing Argo
v. Blue Cross and Blue Shield of Kansas, 452 F.3d 1193, 1199 (10th Cir. 2006). The case Lee
cites is not directly applicable here, as it only discusses the general standard for considering
evidence at the summary judgment stage. See Argo v. Blue Cross and Blue Shield of Kansas, 452
F.3d 1193, 1199 (10th Cir. 2006). The fact at issue also has ample support elsewhere in the record.
See UNMPD Felony Supplemental Report at 36. The Defendants can rely on Lee’s statements as
the statements of a party opponent; they are non-hearsay. See Rawers v. United States, No. CIV
19-0034 JB\CG, 2020 WL 5663427, at *1 n.2 (D.N.M. Sept. 23, 2020)(Browning, J.)(admitting a
defendant’s statements regarding the car accident at issue to a police officer as statements of a
party opponent). Lee cannot offer his own statements if he is offering them for the truth of the
matter asserted. See Rawers v. United States, 2020 WL 5663427, at *1 n.2 (holding that a
plaintiff’s own statements, “when she offers them herself, are hearsay without any exception to
save their admissibility”).
12
At the summary judgment stage, facts must be viewed in the light most favorable to the
nonmoving party when there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c).
In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court of the United States of America stated
that:
“[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-248 (1986). When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment. That was the case here
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Lee informed Officer Fisher that Roe and Goodnight were “playing Blackjack and taking
shots” and “that at first everything seemed fine but then [Roe] became very intoxicated.” Fisher
Supp. Rpt. at 1. See Defendants’ MSJ Memo ¶ 5, at 3 (asserting this fact).13 Lee informed the
UNMPD that he observed Roe “drink three shots of whiskey.” UNMPD Felony Supplemental
Report at 39 (dated Oct. 5, 2015), filed Feb. 6, 2020 (Doc. 71-1)(“UNMPD Felony Supplemental
with regard to the factual issue whether respondent was driving in such fashion as
to endanger human life. Respondent’s version of events is so utterly discredited by
the record that no reasonable jury could have believed him. The Court of Appeals
should not have relied on such visible fiction; it should have viewed the facts in the
light depicted by the videotape
Scott v. Harris, 550 U.S. at 380-81 (emphases in original). In Scott v. Harris, the video record
clearly contradicted the plaintiff’s version of events. See 550 U.S. at 380-81. The Supreme Court,
therefore, concluded that a court may not adopt a “blatantly contradicted” version of the facts at
the summary judgment stage. 550 U.S. at 380-81. The United State Court of Appeals for the
Tenth Circuit also has concluded that, where an audio recording of an event “‘blatantly
contradicts’” a plaintiff’s version of the facts at the summary judgment stage, the court should not
adopt the plaintiff’s version of the facts to the extent that the audio recording “‘blatantly
contradicted’” them.
York v. City of Las Cruces, 523 F.3d 1205, 1210-11 (10th Cir.
2008)(concluding that a tape recording which only captured part of the events and was often
unintelligible did not blatantly contradict the plaintiff’s version of the evidence)(quoting Scott v.
Harris, 550 U.S. at 380). See Cordero v. Froats, 613 F. App’x 768, 769 (10th Cir. 2015)(explaining
that, in a police shooting case, although evidence -- including a video, audio recordings, and
physical evidence -- undermined the plaintiff’s witnesses, the video did not contradict blatantly
the plaintiff’s version of events, because the video did not show clearly the plaintiff holding a
gun)(citing Scott v. Harris, 550 U.S. at 380). Here, as in Scott v. Harris, Lee denies some of the
police reports’ contents, but clear, intelligible audio recordings support the police reports. To the
extent that Lee purports that he did not provide a particular statement to the police, the Court will
not credit Lee’s testimony where the audio recordings of his police interviews “blatantly
contradict” his statements. See Scott v. Harris, 550 U.S. at 380.
13
Lee disputes whether Roe was “very intoxicated.” Response at 4. Lee cites his
deposition, which indicates that Roe did not appear intoxicated. See Lee Depo. at 282:12-286:23.
Nonetheless, Lee does not dispute that he advised the police that Roe was intoxicated; he
acknowledges that it was “possible” he made the statement though he “did not recall.” Response
at 4. See Lee Depo. at 282:12-286:23. Because Lee does not dispute with . . . that he told the
police that Roe was very intoxicated, the Court will deem this fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the Memorandum will be deemed
undisputed unless specifically controverted.”).
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Report”). See Defendants’ MSJ Memo ¶ 5, at 3 (asserting this fact).14 “Lee advised that he
purchased the alcohol that was consumed by Goodnight and Roe, both of whom he knew to under
the legal drinking age of 21.” UNMPD Felony Supplemental Report Supplemental at 42. See
Defendants’ MSJ Memo ¶ 8, at 4-5 (asserting this fact).15 Lee, Roe, and Goodnight began to play
strip blackjack. See UNMPD Felony Supplemental Report at 41.16 After Roe consumed the
alcohol, Lee informed the UNMPD that Roe was a “6 or 7” on a 1-10 scale with “1 not being
intoxicated and 10 being highly intoxicated.” UNMPD Felony Supplemental Report at 41. See
Defendants’ MSJ Memo at 4 n.5 (asserting this fact); Fisher Supp. Rpt. at 1.17 Lee informed Fisher
that Roe “was really drunk and staggering” on the way into the bedroom, and that Goodnight “was
holding her so she didn’t fall over.” Fisher Supp. Rpt. at 1. See Defendants’ MSJ Memo ¶ 7, at 4
(asserting this fact).18
Thereafter, Lee told Fisher that he saw Roe and Goodnight have sex. See Defendants’ MSJ
Memo ¶ 5, at 3 (asserting this fact); Fisher Supp. Rpt. at 1; id. (Lee “saw Goodnight take off a
condom from his penis and throw it into the toilet[]”); id. (Lee “heard moaning and the sounds of
14
Lee purports to dispute this fact, contending that “there are disputed factual issues about
whether Ms. Roe became ‘very intoxicated’ and was ‘really drunk and staggering;’ Mr. Goodnight
was ‘holding her so that she didn’t fall over;’ and Ms. Roe was ‘very incoherent of what was
happening’ and unable to consent to sexual contact.” For the reasons stated in n.12, supra, the
Court examines Lee’s recorded statements to the UNMPD, and concludes there is no dispute
surrounding whether Lee told the UNMPD officers that Roe was very intoxicated. See e.g.,
Transcript of Audio Recording Labeled: Ex. C-1 -- Audio Recording of Lobo Village Interview of
Jong Lee at 17:11-20 (Lee)(Roe “was stumbling. . . she was buzzed and drunk yeah . . . she was
intoxicated”).
15
For the reasons stated in n.12, supra, the Court considers this fact.
16
For the reasons stated in n.12 and n.14, supra, the Court considers this fact.
17
For the reasons stated in n.12 and n.14, supra, the Court considers this fact.
18
For the reasons stated in n.12 and n.14, supra, the Court considers this fact.
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Goodnight having what he believed was an orgasm”).19 Lee advised Fisher that “he was . . . in the
bedroom the whole time that Goodnight was having sex with [Roe].” Fisher Supp. Rpt. at 2. See
Defendants’ MSJ Memo ¶ 6, at 3 (asserting this fact).20 Officer Fisher asked Lee if he had sex
with Roe, and Lee “looked away for a few seconds and said ‘well I tried to get a blow-job.’”
Fisher Supp. Rpt. at 2 (quoting Lee). See Defendants’ MSJ Memo ¶ 5, at 3 (asserting this fact).21
Lee informed Fisher that “Goodnight was having vaginal sex with Roe while he was trying to
insert his penis into her mouth.” Fisher Supp. Rpt. at 2. See Defendants’ MSJ Memo ¶ 5, at 3
(asserting this fact).22 Lee told Fisher that that “he never succeeded in this act because Roe would
not open her mouth and let him.” Fisher Supp. Rpt. at 2. See Defendants’ MSJ Memo ¶ 5, at 3
(asserting this fact).23 Afterwards, Lee told Fisher that Roe “ha[d] trouble breathing.” Fisher
Supp. Rpt. at 1. See Defendants’ MSJ Memo ¶ 5, at 3 (asserting this fact). She was “naked on the
floor” in Goodnight’s bedroom, “very incoherent of what was happening” and Lee “dressed her
and held her up.” Fisher Supp. Rpt. at 1. See Defendants’ MSJ Memo ¶ 8, at 4 (asserting this
fact). When officers arrived at Lobo Village, Roe “appeared intoxicated and was unable to stand.”
UNMPD Felony Supplemental Report at 39. See Defendants’ MSJ Memo ¶ 8, at 4-5 (asserting
this fact).24 Fisher indicated that his “contact with Lee and Goodnight was recorded” and filed.
Fisher Supp. Rpt. at 2. See Defendants’ MSJ Memo ¶ 8, at 4-5 (asserting this fact); Response at 4
19
20
For the reasons stated in n.12 and n.14, supra, the Court considers this fact.
For the reasons stated in n.12 and n.14, supra, the Court considers this fact.
21
For the reasons stated in n.12 and n.14, supra, the Court considers this fact.
22
For the reasons stated in n.12 and n.14, supra, the Court considers this fact.
23
For the reasons stated in n.12 and n.14, supra, the Court considers this fact.
24
For the reasons stated in n.12 and n.14, supra, the Court considers this fact.
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(admitting this fact).
4.
UNM’s Misconduct Policies.
UNM provides students charged with violations of most UNM policies with options,
including: (i) an administrative hearing where the student may participate, question individuals,
and present evidence; or (ii) a formal hearing where the student may present witnesses, question
witnesses, and respond to charges. See Response at 11 (asserting this fact); Reply at 10 (noting
that the “UNM Policies described by Plaintiff speak for themselves”);25 UNM Student Handbook:
Student Grievance Procedure at 5-6, filed March 23, 2020 (Doc. 76-3)(“Student Handbook”);26
Responses to Plaintiff’s First Set or Requests for Admission to Defendant Board of Regents of the
University of New Mexico at 7-8, 10, filed March 3, 2020 (Doc. 76-5)(“Bd. of Regents
Admissions”)27.
By contrast, the OEO investigates allegations of “discrimination.”28 Student Handbook at
25
UNM does not dispute specifically the fact in the text that Lee proposes, which has ample
support in the record. Accordingly, the Court deems the fact in the text undisputed. See D.N.M.
LR-Civ 56.1(b) (“All material facts set forth in the response will be deemed undisputed unless
specifically controverted.”).
26
The charges may also be resolved via mediation or an informal dispute conference. See
UNM Student Handbook at 5. Students receive and may select from “one of more of
the . . . options” to resolve the charges -- mediation, an informal dispute conference, an
administrative hearing, or a formal hearing -- although “the Student Conduct Officer is authorized
to refer the charges for a formal hearing before the Student Conduct Committee even if the student
does not elect a formal hearing.” Student Handbook at 5.
27
UNM Board of Regents admits that “UNM’s Student Grievance Procedure in effect
during UNM’s investigation into the allegations against Plaintiff provides students who are not
accused of sexual misconduct the option of an administrative hearing with the Student Conduct
Officer and/or a formal hearing with the Student Conduct Committee prior to UNM’s
determination that a policy violation has occurred.” Bd. of Regents Admissions at 6-7
28
Although the Defendants accept these facts, they insist
the distinctions between how UNM investigates and resolves charges of non-sexual
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7.29 See Response at 12 (asserting that the OEO investigates allegations of sexual misconduct);
Reply at 10 (noting that the “UNM Policies described by Plaintiff speak for themselves”).
“Discrimination” includes sexual misconduct allegations. Student Handbook at 7. See Response
at 12 (asserting that the OEO investigates allegations of sexual misconduct); Reply at 10 (noting
that the “UNM Policies described by Plaintiff speak for themselves”).
OEO investigations typically take between two weeks and four months, “depending on the
complexity of a particular claim.” OEO Discrimination Claims Procedure at 4, filed March 23,
2020 (Doc. 76-4). 30 After an investigation, the OEO provides both the accused student and the
misconduct versus charges of sexual misconduct are only pertinent in assessing
whether it would impose a “substantial fiscal and administrative burden” on UNM
to provide a student accused of sexual misconduct with the procedural safeguards
associated with an adversarial hearing.
Reply at 10 (quoting Lee v. Univ. of New Mexico, 449 F. Supp. 3d 1071, 1125 (D.N.M.
2020)(Browning, J.)). The Court notes that the Defendants mischaracterize the MOO, which in
this section rejects the Defendants’ evidentiary burden arguments. See MOO, 449 F. Supp at 1125.
Further, the Court notes that the quote which the Defendants extract from the MOO is a quote from
the Defendants’ briefing. See MOO, 449 F. Supp at 1125.
29
The Student Handbook defines “discrimination” as
all forms of unlawful discrimination based on an individual’s or group’s
protected class(es), including age (40 and over), ancestry/national origin,
color/race, gender identity, medical condition, mental/physical disability, religion,
sex/gender, sexual orientation, spousal affiliation, veteran status, and any other
protected class . . . acts of sexual harassment as described in University
Administrative Policy #2730; and acts of sexual harassment, sexual misconduct,
and sexual violence as described in University Administrative Policy
#2740 . . . . ”[D]iscrimination” also includes retaliation for having made allegations
of discrimination, having participated in an investigation into allegations of
discrimination, or otherwise having engaged in opposition to unlawful
discrimination.
Student Handbook at 7.
30
Neither party has included this fact in their briefing. Lee, however, has attached a copy
of the OEO Discrimination Claims Procedure to his Response and cites it in his Response. See
Response at 12 (citing OEO Discrimination Claims Procedure at 4). The Defendants have accepted
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complainant with a Preliminary Letter of Determination (“PLOD”) that describes the investigator’s
preliminary findings. See OEO Discrimination Claims Procedure at 4. Then, the accused student
and the complainant both have at least two weeks -- which the OEO may extend for “good cause”
-- to respond to the PLOD. See OEO Discrimination Claims Procedure at 4. After the response
period, the OEO issues a Final Letter of Determination (“FLOD”) which finds either probable
cause or no probable cause31 that the accused student has violated UNM policy. See Response at
12 (asserting this fact); Reply at 10 (noting that the “UNM Policies described by Plaintiff speak
for themselves”); Student Handbook at 7. The OEO investigator controls the investigation; the
Student Handbook does not provide the accused student with the right to participate directly in the
investigation. See Response at 12 (asserting this fact); Reply at 10 (noting that the “UNM Policies
described by Plaintiff speak for themselves”); Student Handbook at 7.32
If the OEO investigator finds probable cause that a student engaged in sexual misconduct,
Lee’s facts about UNM’s policies and procedures, affirming that “UNM policies described by
Plaintiff speak for themselves.” Reply at 10. The Court, therefore, concludes that UNM’s official
policies and procedures are not in dispute, and thus includes additional detail from the OEO
Discrimination Claims Procedure that are relevant in this opinion. See D.N.M. LR-Civ 56.1(b)
(“All material facts set forth in the response will be deemed undisputed unless specifically
controverted.”).
31
“‘Probable Cause’ means that the evidence submitted during the OEO investigation
supports a finding that it is more likely than not that the acts alleged are in violation of University
policy prohibiting discrimination.” Student Handbook at 7. Likewise, “‘No Probable Cause’
means that the evidence submitted during the OEO investigation does not support a finding that it
is more likely than not that the acts alleged are in violation of University policy prohibiting
discrimination.” Student Handbook at 7.
32
Lee notes, and the Defendants do not dispute, that “the OEO investigator determines
which witnesses are credible, and the charged student is not able to question his accuser or any
other witnesses, weigh in on the investigation; to attend witness examinations; or take any actions
to test the credibility or weight of any evidence reviewed by the UNM OEO investigator.”
Response at 12 (citing Student Handbook at 7). See Reply at 10. The Court, therefore, deems this
fact admitted. See D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the response will be
deemed undisputed unless specifically controverted.”).
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the OEO then refers the case to the DOS to impose sanctions. See Response at 12 (asserting this
fact); Reply at 10 (noting that the “UNM Policies described by Plaintiff speak for themselves”);
Student Handbook at 7. The accused student may choose between an administrative hearing and
a formal hearing on sanctions. See Response at 12 (asserting this fact); Reply at 10 (noting that
the “UNM Policies described by Plaintiff speak for themselves”); Student Handbook at 7. Either
the accused student or the complainant may appeal a sanctions decision if “there was a significant
procedural error in the sanctioning process of a nature sufficient to have materially affected the
outcome of the sanction decision, and/or the severity of the sanction is grossly disproportionate to
the violations of the university policy that OEO found to have been committed.” Student
Handbook at 8. See Response at 12 (asserting this fact); Reply at 10 (noting that the “UNM
Policies described by Plaintiff speak for themselves”).
After the OEO investigator issues the FLOD, the accused student and the complainant both
may appeal the decision to the UNM President and Board of Regents. See Response at 12
(asserting this fact); Reply at 10 (noting that the “UNM Policies described by Plaintiff speak for
themselves”); Student Handbook at 7. The UNM President and Board of Regents will “normally
accept review only in extraordinary cases, such as those where proper procedure has apparently
not been followed, where the decision appears to be unsupported by the facts, and/or where the
decision appears to violate University policy.” OEO Discrimination Claims Procedure at 4. See
Response at 12 (asserting this fact); Reply at 10 (noting that the “UNM Policies described by
Plaintiff speak for themselves”). The President receives an appeal first. See OEO Discrimination
Claims Procedure at 4.33 The Board of Regents then has discretion whether to review the
33
Neither party has included this fact in their briefing. As discussed in n.30, supra, the
Court will consider relevant facts from the OEO Claims Procedure.
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President’s decision. See OEO Discrimination Claims Procedure at 4.34
5.
The Lee Investigation.
On September 21, 2015, a Student Conduct Officer from the DOS, Lydia Wolberg, sent
Lee an email “emergency banning” Lee from UNM’s campus. Emergency Campus Ban Letter at
1 (dated September 21, 2015), filed February 6, 2020 (Doc. 71-2)(“Emergency Campus Ban
Letter”). See Defendants’ MSJ Memo ¶ 9, at 5 (asserting this fact); Response at 5 (stating that the
Emergency Campus ban Letter “speaks for itself”).35 36 Wolberg also informed Lee that the OEO
“will investigate the actual incident that occurred on campus and they will be in contact with you
regarding the investigation.” Emergency Campus Ban Letter at 1. See Defendants’ MSJ Memo ¶
9, at 5 (asserting this fact); Response at 5 (stating that the Emergency Campus ban Letter “speaks
for itself”).37 Wolberg provided Lee with a link to “information regarding the emergency ban and
disciplinary process of the University.” Emergency Campus Ban Letter at 1. See Defendants’
MSJ Memo ¶ 9, at 5 (asserting this fact); Response at 5 (stating that the Emergency Campus ban
Letter “speaks for itself”).38
34
Neither party has included this fact in their briefing. As discussed in n.30, supra, the
Court will consider relevant facts from the OEO Claims Procedure.
35
Lee does not specifically controvert this fact, so the Court deems it admitted. See D.N.M.
LR-Civ 56.1(b) (“All material facts set forth in the Memorandum will be deemed undisputed
unless specifically controverted.”).
36
Although neither party has included this fact in their briefing, neither disputes this fact.
The Defendants attach the Emergency Campus Ban Letter to the Defendants’ MSJ Memo. The
Court, therefore, deems this fact admitted. See D.N.M. LR-Civ 56.1(b) (“All material facts set
forth in the Memorandum will be deemed undisputed unless specifically controverted.”).
37
Lee does not specifically controvert this fact, so the Court deems it admitted. See D.N.M.
LR-Civ 56.1(b) (“All material facts set forth in the Memorandum will be deemed undisputed
unless specifically controverted.”).
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The following day, Wolberg emailed Lee lifting his campus ban, but informing him that
he would “only [be] allowed to attend classes and class related activities” on campus. Update on
Campus Ban at 2 (dated September 22, 2015), filed February 6, 2020 (Doc. 71-2)(“Update on
Campus Ban”).39 The email reminded Lee that the OEO would investigate the incident. See
Update on Campus Ban at 2.
On September 24, 2015, Lee met with Heather Cowan, UNM’s Title IX Coordinator, and
Francie Cordova, the OEO Director. See Defendants’ MSJ Memo ¶ 11, at 5-6 (asserting this fact);
UNM OEO Handout Acknowledgement at 3 (dated September 24, 2015), filed February 6, 2020
(Doc. 71-2)(“Handout Acknowledgement”); Email to Heather Cowan from Lee at 4 (dated
September 25, 2015), filed February 6, 2020 (Doc. 71-2)(“Sept. 25 Cowan Email”).40 Lee received
copies of the “OEO Claims Procedure” and “Analysis of Claims” handouts.
Handout
38
Lee does not specifically controvert this fact, so the Court deems it admitted. See D.N.M.
LR-Civ 56.1(b) (“All material facts set forth in the Memorandum will be deemed undisputed
unless specifically controverted.”).
39
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in Defendants’ MSJ Memo ¶ 10, at 5, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 3 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Further, whether Lee was able to remain on campus during the
investigation is relevant to his contention that the OEO predetermined his guilt. See Response at
27-28.
40
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in Defendants’ MSJ Memo ¶ 11, at 5-6, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 3 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Further, it is relevant that Lee met with Cowan and Cordova because it is
relevant to Lee’s contention that he did not receive appropriate notice and an opportunity to be
heard. See Response at 17.
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Acknowledgement at 3. See Defendants’ MSJ Memo ¶ 11, at 5-6 (asserting this fact).41 After the
meeting, Lee emailed Cowan to “express my gratitude to you for showing me kindness and
professionalism during yesterday’s meeting. It did not take long for you to convince me that you
would be neutral and fair to me throughout this whole process.” Sept. 25 Cowan Email at 4. See
Defendants’ MSJ Memo ¶ 11, at 5-6 (asserting this fact).42
The OEO conducted its investigation into Lee pursuant to its procedures for allegations of
discrimination. See Response at 12 (asserting this fact); Reply at 10 (noting that “UNM policies
described by Plaintiff speak for themselves”); Bd. of Regents Admissions at 2-4.43 Buchs was the
OEO investigator into Lee’s case. See Response at 12 (asserting this fact); Reply at 10 (not
addressing this fact); PLOD at 33; Final Letter of Determination at 3, filed February 6, 2020 (Doc.
71-3)(“FLOD”).44 Buchs signed both the PLOD and FLOD in Lee’s case. See Response at 12
(asserting this fact); Reply at 10 (not addressing this fact); PLOD at 33; FLOD at 3.45
On October 16, 2015, Buchs hand-delivered a letter to Lee notifying him that that Roe “has
raised issues and concerns of possible sexual violence and misconduct . . . Complainant has
elected to pursue a formal investigation of her concerns and has named you as a Respondent in
41
The Court considers this fact for the reasons stated in n.40, supra.
42
The Court considers this fact for the reasons stated in n.40, supra.
43
The Defendants do not dispute specifically the fact in the text that Lee proposes, which
has ample support in the record. Accordingly, the Court deems the fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the response will be deemed undisputed
unless specifically controverted.”).
44
The Defendants do not specifically controvert this fact, see Reply at 10, so the Court
deems this fact admitted, see D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the
Memorandum will be deemed undisputed unless specifically controverted.”).
45
The Court considers this fact for the reasons stated in n.44, supra.
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this claim.” Letter Re: Investigative Issues at 4 (dated October 16, 2015), filed February 6, 2020
(Doc. 71-2)(“Oct. 16 Letter”). See Defendants’ MSJ Memo ¶ 12, at 6 (asserting this fact).46 The
letter stated that Roe had asserted Lee “subjected her to this non-consensual sexual activity” in
“violation of UNM Policy.” Oct. 16 Letter at 4. See Defendants’ MSJ Memo ¶ 12, at 6 (asserting
this fact).47 The Letter asked Lee to respond to Roe’s allegations within seven business days. See
Defendants’ MSJ Memo ¶ 12, at 6 (asserting this fact); Oct. 16 Letter at 4.48 The Letter then
provided the text of Roe’s statement. See Oct. 16 Letter at 4-5. Lee responded to the allegations
in Roe’s statement by reading a written statement to Buchs on October 27, 2015. See Defendants’
MSJ Memo ¶ 13, at 6 (asserting this fact); Written Statement of Jong Hoon Lee at 8-14 (undated),
filed February 6, 2020 (Doc. 71-2)(“Lee Statement”); PLOD at 16.49 Lee also provided Buchs
with photographs. See PLOD at 16; id. at 26 (noting that Lee “provided photographs of furniture,
46
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in Defendants’ MSJ Memo ¶ 12, at 6, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 6 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Further, it is relevant that Buchs provided Lee with a letter stating that he
had been accused of sexual assault, because Lee contends that he did not receive appropriate
notice. See Response at 17.
47
The Court considers this fact for the reasons stated in n.46, supra.
48
The Court considers this fact for the reasons stated in n.46, supra.
49
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in Defendants’ MSJ Memo ¶ 13, at 6, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 6 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Further, it is relevant that Lee had an opportunity to respond to Roe’s
statement in writing because it relates to whether UNM gave Lee a chance to “characterize his
conduct and put it in what he deems the proper context.” Goss v. Lopez, 419 U.S. 565, 584 (1975).
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stairways, and areas around Lobo Village that were found irrelevant to the investigation . . .”).50
Buchs interviewed Roe, Goodnight, Lee, and two other witnesses during the investigation.
See PLOD at 16.51 The PLOD did not provide the names of the other witnesses, but described
“Witness 1” as a person with “a close, personal relationship with [Goodnight]” to whom Goodnight
had described the evening of the alleged sexual assault, and who had “met all of [Goodnight’s]
roommates, but not having spent any significant time with [Lee] or Witness 2.” PLOD at 26. See
Response at 13 (asserting that Lee did not receive witnesses’ names).52 The PLOD described
“Witness 2” as Lee and Goodnight’s roommate, who was present in the apartment on the evening
of the alleged sexual assault. PLOD at 26.53 In addition to the witness interviews, Buchs also
reviewed the following evidence: (i) a “UNM Police Department Significant Event Form”; (ii) “a
State of New Mexico Uniform Incident Report”; (iii) “a State of New Mexico Supplemental
Report”; (iv) text messages and Facebook messages between Goodnight and Roe; and (v)
photographs of “the exterior of Lobo Village and a nightstand within the apartment where the
50
Neither party asserts this fact. The Defendants, however, attach the PLOD to the MSJ
Memo. Lee does not dispute that this is an accurate copy of the PLOD. This information is
relevant because Lee’s opportunity to supplement the record Buchs considered relates to whether
UNM gave Lee a chance to “characterize his conduct and put it in what he deems the proper
context.” Goss v. Lopez, 419 U.S. 565, 584 (1975). See Response at 15.
51
Neither party asserts this fact. The Defendants, however, attach the PLOD to the MSJ
Memo. Lee does not dispute that this is an accurate copy of the PLOD. This information is
relevant because it relates to whether Lee knew the witnesses’ identities, which he avers he did
not. See Response at 15.
52
The Defendants do not dispute specifically the fact in the text that Lee proposes, which
has ample support in the record. Accordingly, the Court deems the fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the response will be deemed undisputed
unless specifically controverted.”).
53
The Court considers this fact for the reasons stated in n.52, supra.
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alleged incident took place.” PLOD at 16.54 During the investigation, Lee did not (i) receive a
hearing; (ii) have the opportunity to cross-examine or question Roe or any of the other witnesses;
or (iii) have the opportunity to be present during the OEO’s witness interviews. See Response at
13 (asserting this fact); Bd. of Regents Admissions at 5-6.55
The OEO issued the PLOD on January 20, 2016, over four months after the alleged sexual
assault occurred. See Defendants’ MSJ Memo ¶ 16, at 7 (providing the investigation’s timeline);
PLOD at 15.56 The PLOD provided edited witness statements and summarized the evidence the
OEO considered. See Defendants’ MSJ Memo ¶ 16, at 7; PLOD at 16-29.57 The PLOD described
two UNM policies that Lee allegedly violated. See PLOD at 29.58 The PLOD noted that Lee
admits to kissing Complainant and trying to engage in oral sex with her. Therefore,
the remaining analysis seeks to determine whether the sexual activity was
unwelcome and/or non-consensual, and if unwelcome or non-consensual, whether
a reasonable person in the same or similar circumstances would have been aware
the sexual activity was unwelcomed by and/or without consent from the
54
Neither party asserts this fact. The Defendants, however, attach the PLOD to the MSJ
Memo. Lee does not dispute that this is an accurate copy of the PLOD. This information is
relevant because it details what evidence Buchs reviewed during her investigation. See Response
at 18.
55
The Defendants do not dispute specifically the fact in the text that Lee proposes, which
has ample support in the record. Accordingly, the Court deems the fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the response will be deemed undisputed
unless specifically controverted.”).
56
Lee does not dispute specifically the fact in the text that the Defendants propose, which
has ample support in the record. Accordingly, the Court deems the fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the Memorandum will be deemed
undisputed unless specifically controverted.”).
57
The Court considers this fact for the reasons stated in n.56, supra.
58
Neither party asserts this fact. The Defendants, however, attach the PLOD to the MSJ
Memo. Lee does not dispute that this is an accurate copy of the PLOD. This information is
relevant because it relates to why Lee was expelled from UNM.
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Complainant at the time the alleged conduct occurred.
PLOD at 29-30.59 The PLOD also provided UNM’s definition of consent to sexual activity:
Consent is an affirmative, informed, and conscious decision to willingly
engage in mutually acceptable sexual activity. Consent requires a clear affirmative
act or statement by each participant to each sexual act in a sexual interaction.
Sexual activity will be considered to have occurred “without consent” if no
clear act or statement is given. Consent may not be inferred from silence, passivity,
or lack of active response alone. A person who is asleep, unconscious, or otherwise
unaware of what is happening is unable to give consent. Furthermore . . . consent
to one form of sexual activity does not imply consent to other forms of sexual
activity. It is the responsibility of the person initiating the sexual activity to obtain
consent from their partner. Being intoxicated or under the influence of other drugs
does not diminish one’s responsibility to obtain consent.
The use of alcohol or drugs can limit or prevent a person’s ability to freely
and clearly give consent. If a person is under the influence of alcohol or drugs such
that they are unable to give meaningful consent or understand the fact, nature or
extent of the sexual situation, there is no consent. Intoxication alone, however,
does not mean a person is incapable of consenting to sexual activity. OEO examines
the record for other behavior like stumbling or otherwise exhibiting loss of
equilibrium; slurred speech or word confusion; bloodshot, glassy or unfocused
eyes; vomiting, especially repeatedly; being disoriented or confused as to time or
place; or loss of consciousness.
Should the preponderance-of-the-evidence in the record demonstrate that
one or more such behaviors were objectively apparent at the time the alleged
unconsented-to or unwelcomed sexual activity occurred, that evidence may
demonstrate that the Respondent knew or should have known that the Complainant
was incapable of giving meaningful consent to sexual activity due to intoxication.
PLOD at 30 (citing UNM Policy # 2740).60
The PLOD explained that Lee, Goodnight, and Roe agree that all parties consumed alcohol
on the evening of the alleged sexual assault. See PLOD at 30.61 The PLOD continued that Lee
59
The Court considers this fact for the reasons stated in n.58, supra.
60
The Court considers this fact for the reasons stated in n.58, supra.
61
The Court considers this fact for the reasons stated in n.58, supra.
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and Goodnight did not assert that they were incapacitated because of the alcohol they consumed.
See PLOD at 30.62 Roe alleged that “she had consumed so much alcohol as to be incapacitated,”
but Lee and Goodnight denied Roe was incapacitated. PLOD at 30.63 Lee and Goodnight informed
the OEO that Roe “did not exhibit any signs of incapacitation”; the OEO found “these statements
by Respondents are not supported by witness statements and lack credibility.” PLOD at 30.64 In
finding that Lee and Goodnight’s statements regarding Roe’s intoxication lacked credibility, the
PLOD discussed: (i) statements by “Witness 2”; (ii) statements by Roe; (iii) statements by Lee and
Goodnight; (iv) statements by “Witness 1” describing what Goodnight had told him; (v) UNMPD
observations of Roe after she called them on the evening of the alleged incident; and (vi) the fact
that an ambulance transported Roe to the hospital shortly after she called the police. PLOD at
31.65
The PLOD continued that the statements Lee and Goodnight “made to the OEO are
significantly different from the statements Respondents provided to UNMPD . . . and
Respondents’ extemporaneous statements to UNMPD confirm or corroborate critical elements of
Complainant’s account of events.” PLOD at 31.66 Furthermore, the PLOD stated that Lee and
Goodnight both “confirmed to the UNMPD that Complainant was ‘very intoxicated.’” PLOD at
62
The Court considers this fact for the reasons stated in n.58, supra.
63
The Court considers this fact for the reasons stated in n.58, supra.
64
The Court considers this fact for the reasons stated in n.58, supra.
65
The Court considers this fact for the reasons stated in n.58, supra.
66
The Court considers this fact for the reasons stated in n.58, supra.
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31 (no citation for quotation provided).67 After summarizing Lee and Goodnight’s descriptions of
Roe’s intoxication to the UNMPD, Buchs concluded:
[Lee and Goodnight’s] statements to UNMPD that Complainant was “very
intoxicated” and had to be “held up/carried,” had “trouble breathing/medical
episode,” and was dressed by [Lee] demonstrate Complainant was intoxicated to
the point of incapacitation, and a reasonable person, in the same or similar
circumstances, would understand the Complainant was intoxicated to the point of
incapacitation. OEO finds UNMPD’s observation that Complainant was
“intoxicated and not able to stand up” when they arrived at the scene as recorded in
the Supplemental report, corroborates Respondents’ statements made to UNMPD
that Complainant was very intoxicated and supports Complainant’s allegation sHE
was incapacitated. OEO finds Complainant being taken from Lobo Village to a
hospital by ambulance “due to her level of intoxication and incoherent state” further
supports Complainant was incapacitated. OEO also finds both witness statements
support Respondents’ statements made to UNMPD and further corroborate
Complainant’s version of events on or about September 18, 2015. For these
reasons, OEO finds Respondents’ extemporaneous statements To UNMPD on or
about September 18, 2015, are more credible than Respondent’s statements made
to OEO for the purpose of this investigation.
As such, OEO finds the preponderance of the credible evidence shows
Complainant exhibited signs of incapacitation prior to engaging in sexual activities
in [Goodnight’s] bedroom. OEO also finds Complainant’s confirmed statement, as
corroborated by Witness 2, that she wanted to go home demonstrates a lack of
consent for sexual activity at the time the statement was made. OEO further finds
there is no credible evidence of a subsequent statement of affirmative consent
having been made by Complainant . . . . OEO further finds the preponderance of
evidence shows [Lee] knew, or reasonably should have known, Complainant did
not consent to him trying to put his penis in her mouth while she laid on
[Goodnight’s] bed because he confirmed to UNMPD she would not open her mouth
for him to do so.
For the reasons above, OEO finds that it is more likely than not that [Lee]
engaged in nonconsensual sexual activity with Complainant which is a violation of
Policy 11-2740 and Policy #2730.
Based on the information obtained during this investigation, including a
thorough review and analysis of the statements provided by the parties and the
witnesses, it is determined there is sufficient evidence to show it is more likely than
not [Lee]’s behavior constitutes sexual misconduct in violation of University
policy.
67
The Court considers this fact for the reasons stated in n.58, supra.
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PLOD at 31-32. Accord Response at 14 (quoting portions of the PLOD); Reply at 11 (confirming
these quotation). Consequently, the PLOD advised Lee that the OEO had found probable cause
that Lee violated University Policies # 2740 (Sexual Violence and Sexual Misconduct) and # 2730
(Sexual Harassment). See PLOD at 31-32.68
The PLOD invited Lee to provide new factual
information within two weeks to “reveal facts not yet discovered during the course of the
investigation” and advised Lee that “any new factual information will be evaluated before a final
determination is made.” PLOD at 32. See Defendants’ MSJ Memo 18, at 9 (asserting this fact). 69
Lee responded to the PLOD on February 22, 2016. See Defendants’ MSJ Memo ¶ 18, at
9 (asserting this fact); Response at 8 (admitting this fact); Supplemental Information in Response
to the PLOD at 34 (dated February 22, 2016), filed February 6, 2020 (Doc. 71-2)(“Feb. 22 Letter”).
The Feb. 22 Letter first reiterated some of the information detailed in the PLOD. See Defendants’
MSJ Memo ¶ 18, at 9 (asserting this fact); Feb. 22 Letter at 35. 70 The Feb. 22 Letter also contained
additional information about the strength of the alcohol that Roe consumed, as well as information
about alcohol absorption rates. See Defendants’ MSJ Memo ¶ 18, at 9 (asserting this fact);
Response at 8 (admitting this fact); Feb. 22 Letter at 35. The Letter continued that “[g]iven the
68
The Court considers this fact for the reasons stated in n.58, supra.
69
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in the Defendants’ MSJ Memo ¶ 18, at 9, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 8 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Further, it is relevant that Lee was able to provide additional evidence
before the OEO issued the FLOD because it relates to whether UNM gave Lee a chance to
“characterize his conduct and put it in what he deems the proper context.” Goss v. Lopez, 419
U.S. 565, 584 (1975).
70
The Court considers this fact for the reasons stated in n.69, supra.
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amount of alcohol consumed and the amount of time that lapsed between he period of drinking
and the sexual acts, [Lee] did not think that Complainant was so intoxicated that she could not
consent to any sexual contact.” Feb. 22 Letter at 37. See Defendants’ MSJ Memo ¶ 18, at 9
(asserting this fact); Response at 8 (admitting this fact). The Letter also attached an audio
interview with Roe and her mother with a police officer after the incident. See Defendants’ MSJ
Memo ¶ 18, at 9 (asserting this fact); Response at 8 (admitting this fact); Feb. 22 Letter at 37. The
Letter continued that Roe was taking two prescription medications at the time of the alleged sexual
assault, and described the side effects of these drugs. See Defendants’ MSJ Memo ¶ 18, at 9
(asserting this fact); Response at 8 (admitting this fact); Feb. 22 Letter at 37-38. The Letter
contended that “[t]he above-described description of her condition at the time of the alleged
incident is a description of all of the side effects of the anti-depressant medications.” Feb. 22
Letter at 38. See Defendants’ MSJ Memo ¶ 18, at 9 (asserting this fact); Response at 8 (admitting
this fact). Finally, the Letter noted that Lee did not know Roe was taking these medications. See
Feb. 22 Letter at 38; Defendants’ MSJ Memo ¶ 18, at 9 (asserting this fact); Response at 8
(admitting this fact).
On February 25, 2016, the OEO issued the FLOD. See Defendants’ MSJ Memo ¶ 19, at 9
(asserting this fact); FLOD at 3.71 The OEO described the information Lee provided in the Feb.
71
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in the Defendants’ MSJ Memo ¶ 18, at 9, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 8 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Further, the contents of the FLOD are relevant to determine whether the
OEO relied on Roe’s statements when it decided that Lee violated UNM policies. See Response
at 15.
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22 Letter. See FLOD at 3.72 Then, it noted that the PLOD concluded “that the preponderance-ofthe-evidence supports a finding that it is more likely than not that Lee engaged in non-consensual
sexual contact with Complainant in violation of policy.” See Defendants’ MSJ Memo ¶ 19, at 9
(asserting this fact); FLOD at 3.73 The OEO notes that it based its determination on the following
evidence:
[Lee] admits to kissing Complainant and trying to engage in oral sex with her.
At the time of the incident, on or about September 18, 2015, [Lee]
confirmed to UNMPD that Complainant was “very intoxicated” prior to going
into [Goodnight’s] bedroom.
Witness 2 observed Complainant’s speech became “slurry” after she arrived
at the apartment in Lobo Village and prior to the parties going to [Goodnight’s]
room (and therefore prior to the sexual contact occurring). Witness 2 also heard
Complainant say, while the parties were in the common room (and therefore prior
to the parties going to [Goodnight’s] room) in a slurred voice, she “want[ed] to go
home.”
[Lee] confirmed [Goodnight] held Complainant up “so she wouldn’t fall
over when they walked to the bedroom” from the common room.
[Lee] confirmed to UNMPD that when they were all in [Goodnight’s]
bedroom, [Lee] tried to get a “blow job” from Complainant, was “trying to insert
his penis into Complainant’s mouth,” but he was not successful because
Complainant “would not open her mouth,”
[Goodnight] confirmed to UNMPD both Respondents
Complainant” to her car because she was “unable to walk on her own.”
“carried
FLOD at 1-2.74 The OEO concluded that the evidence Lee provided in the Feb. 22 Letter was “not
sufficient to overcome OEO’s preliminary determination that the preponderance-of-the-evidence,
72
Neither party asserts this fact. The Defendants, however, attach the FLOD to the MSJ
Memo. Lee does not dispute that this is an accurate copy of the FLOD. This information is
relevant because it relates to whether the OEO considered Lee’s supplemental information.
73
74
The Court considers this fact for the reasons stated in n.72, supra.
Neither party asserts this fact. The Defendants, however, attach the FLOD to the MSJ
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as summarized above, demonstrates Lee . . . engaged in non-consensual sexual contact with
Complainant in violation of University policy.” FLOD at 2. See Defendants’ MSJ Memo ¶ 19, at
9 (asserting this fact). 75 The FLOD advised Lee that it would refer its determination to the DOS.
See FLOD at 2.76 Finally, the FLOD advised Lee that he had a right to appeal this decision to the
President and Board of Regents. See FLOD at 3.77
Lee filed an appeal on March 10, 2016. See Defendants’ MSJ Memo ¶ 20, at 9 (asserting
this fact); Notice of Appeal at 12 (dated March 10, 2016), filed February 6, 2016 (Doc. 713)(“Notice of Appeal”).78 Lee requested “an opportunity for review based upon the fact that the
facts upon which the OEO bases its facts are not supported by the record.” Notice of Appeal at
12. See Defendants’ MSJ Memo ¶ 20, at 9 (asserting this fact).79 UNM’s President, Robert G.
Memo. Lee does not dispute that this is an accurate copy of the FLOD. This information is
relevant because it relates to why the OEO concluded that Lee had violated UNM’s policies.
75
The Court considers this fact for the reasons stated in n.72, supra.
76
Neither party asserts this fact. The Defendants, however, attach the FLOD to the MSJ
Memo. Lee does not dispute that this is an accurate copy of the FLOD. This information is
relevant because the DOS made the subsequent sanctioning decision, which Lee contests. See
Response at 30.
77
Neither party asserts this fact. The Defendants, however, attach the FLOD to the MSJ
Memo. Lee does not dispute that this is an accurate copy of the FLOD. This information is
relevant because it discusses whether Lee had the ability to appeal the OEO’s decision. See
Response at 27.
78
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in the Defendants’ MSJ Memo ¶ 18, at 9, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 8 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Further, Lee’s ability to appeal the OEO’s decision relates to his allegation
that he did not receive an impartial factfinding process. See Response at 26.
79
The Court considers this fact for the reasons stated in n.78, supra.
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Frank, responded to Lee on March 24, 2016. See Defendants’ MSJ Memo ¶ 20, at 9 (asserting
this fact); UNM Office of the President Letter re: Appeal of OEO finding by Jong Hoon Lee at 13
(dated March 24, 2016), filed February 6, 2020 (Doc. 71-3)(“UNM President Letter”).80 Frank
advised Lee that he did not “find extraordinary circumstances to support an appeal” because “there
are sufficient facts in the record to support OEO’s decision that it is more likely than not that Mr.
Lee engaged in non-consensual sexual contact with Complainant.” UNM President Letter at 13.
See Defendants’ MSJ Memo ¶ 20, at 9 (asserting this fact).81 On May 13, 2016, the Board of
Regents voted unanimously to deny Lee’s appeal. See Defendants’ MSJ Memo ¶ 20, at 9 (asserting
this fact); Meeting Minutes at 14.82
6.
The Sanctioning Process.
On April 22, 2016, Megan Chibanga, a Student Conduct Officer with the DOS, contacted Lee
to schedule a meeting with him about his “options and possible sanctions.” Email from Megan
Chibanga to Jong Lee re: “Sanction Meeting for Policy Violation,” (dated April 22, 2016), filed
February 6, 2020 (Doc. 71-3)(“April 22 Email”). See Defendants’ MSJ Memo ¶ 21, at 10
(asserting this fact).83 Lee and Chibanga scheduled a hearing regarding Lee’s sanctions for June
80
The Court considers this fact for the reasons stated in n.79, supra.
81
The Court considers this fact for the reasons stated in n.79, supra.
82
The Court considers this fact for the reasons stated in n.79, supra.
83
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in the Defendants’ MSJ Memo ¶ 21, at 10, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 9 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Moreover, Lee’s meeting with Chibanga is relevant to Lee’s contention
that he never received a hearing. See Response at 27.
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15, 2016. See MSJ Memo ¶ 22, at 10 (asserting this fact); Emails Between Jong Lee and Megan
Chibanga re: “Meeting Schedule/Availability” at 17 (dated May 20, 2016 to June 8, 2016), filed
February 6, 2020 (Doc. 71-3)(“May 20 Email”).84 On June 8, Chibanga contacted Lee to confirm
procedural parameters for the meeting. See May 20 Email at 16.85 Chibanga informed Lee that
the meeting was scheduled for one hour, and:
Since you selected the administrative hearing, you have the opportunity to
present witnesses and evidence, as it relates to the sanctioning of this case. You
will need to bring or be able to electronically provide any evidence you would like
me to consider. Please note that I do not interview witnesses during the hearing
itself, so you will need to bring a list, with contact information, of any witnesses
and the contributions you expect them to make to the hearing on June 15. The
interviewing of any witnesses is at my discretion as the hearing officer.
As outlined in Section 4.4 of the Student Grievance Procedure, this is not
an evidentiary hearing and the outcome determined by OEO is not up for debate in
this portion of the process. However, portions of the Preliminary Letter of
Determination and Final Letter of Determination issued by the Office of Equal
Opportunity may be discussed as they contribute to the severity of the sanction.
Again, I want to reiterate, the finding by OEO will not be challenged in this hearing.
Lastly, I would like to outline the role that your advisor, Arlyn Crow, can
be present during this meeting. While your advisor may be present, he may not
have an active role in the hearing. The hearing will be a conversation between you
and I, and your advisor cannot make arguments on your behalf. However, notes
and whispered conversations are permissible between you and your advisor.
84
Lee does not dispute specifically the fact in the text that the Defendants propose, which
has ample support in the record. Accordingly, the Court deems the fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the Memorandum will be deemed
undisputed unless specifically controverted.”).
85
Neither party asserts this fact. The Defendants, however, attach the May 22 Email to the
MSJ Memo. Lee does not dispute that this is an accurate copy of the May 22 Email. This
information is relevant because it discusses the procedures followed during Lee’s sanctioning
hearing before the DOS. See Response at 27.
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May 20 Email at 16.86 Later that day, Lee responded advising Chibanga that he was aware of the
procedural limitations. See May 20 Email at 16.87 On June 22, after meeting with Chibanga, Lee
emailed Chibanga a written statement delineating factors he wished her to consider in making his
sanctioning determination letter. See Defendants’ MSJ Memo ¶ 24, at 11 (asserting this fact);
Written Statement on Administrative Hearing at 19-20 (dated June 22, 2016), filed February 6,
2020 (Doc. 71-3)(“Written Statement on Administrative Hearing”).88 The statement described
Lee’s version of the events on the evening of the alleged sexual assault, as well as how the event
would impact his future academic career. See Defendants’ MSJ Memo ¶ 24, at 11 (asserting this
fact); Written Statement on Administrative Hearing at 19-20.89
On July 6, 2016, the DOS sent Lee a letter informing him that “the appropriate level of
sanctions for” the OEO’s “findings is expulsion.” DOS Sanctions Letter at 22. See Defendants’
MSJ Memo ¶ 25, at 11 (asserting this fact).90 The letter noted that the DOS “can only consider
86
The Court considers this fact for the reasons stated in n.85, supra.
87
The Court considers this fact for the reasons stated in n.85, supra.
88
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in the Defendants’ MSJ Memo ¶ 24, at 11, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 10 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249
(1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Moreover, Lee’s meeting with Chibanga is relevant to whether the DOS
gave Lee a chance to “characterize his conduct and put it in what he deems the proper context.”
Goss v. Lopez, 419 U.S. 565, 584 (1975).
89
The Court considers this fact for the reasons stated in n.88, supra.
90
Lee does not dispute specifically the fact in the text that the Defendants propose, which
has ample support in the record. Accordingly, the Court deems the fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the response will be deemed undisputed
unless specifically controverted.”).
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evidence submitted for the purpose of determining the appropriate level of sanction to impose for
the violation.” DOS Sanctions Letter at 22. See Defendants’ MSJ Memo ¶ 25, at 11 (asserting
this fact).91 The letter continued that the DOS based its sanctions on the following information:
The information you provided during your Administrative Sanctioning
Hearing that took place with me on Wednesday, June 15, 2016, regarding your
account of events prior to and since the event and how expulsion would impact
your future academic career
Your admission of purchasing alcohol and subsequently providing it to
minors on the date of the incident;
The written statement you provided me with via email on Wednesday,
June 22, 2016 which outlines your desire to continue with your education and the
impact that severe sanctioning would have on you;
The police report regarding this incident;
The Preliminary and Final Probable Cause findings from OEO regarding
your case; and
The seriousness of an individual having had a Probable Cause finding that
they had nonconsensual sexual activity with another UNM student in violation of
UNM policy.
DOS Sanctions Letter at 22-23. See Defendants’ MSJ Memo ¶ 25, at 11 (asserting this fact).92
Next, the letter defined expulsion as “losing status for an indefinite period of time” but allowed
Lee to reapply to UNM in two years. DOS Sanctions Letter at 23. See Defendants’ MSJ Memo
91
Lee does not dispute specifically the fact in the text that the Defendants propose, which
has ample support in the record. Accordingly, the Court deems the fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the response will be deemed undisputed
unless specifically controverted.”).
92
Lee does not dispute specifically the fact in the text that the Defendants propose, which
has ample support in the record. Accordingly, the Court deems the fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the response will be deemed undisputed
unless specifically controverted.”).
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¶ 25, at 11 (asserting this fact).93 The DOS Sanctions Letter informed Lee that a “notation will be
made on your academic transcript, noting that you have been expelled from the University of New
Mexico for disciplinary reasons.” DOS Sanctions Letter at 23.94 The letter also banned Lee from
the UNM campus, and forbade him from contacting Roe. See DOS Sanctions Letter at 23.95 The
letter warned that violating these prohibitions could result in further sanctions, including
permanent expulsion from UNM. See DOS Sanctions Letter at 23.96 The letter concluded that
Lee could appeal the sanctions decision to the UNM President. See DOS Sanctions Letter at 22.97
Lee appealed the DOS’ sanctioning decision on July 15, 2016. See Defendants’ MSJ
Memo ¶ 26, at 12 (asserting this fact); Respondent’s Appellate Brief at 25, dated July 15, 2016,
filed February 6, 2020 (Doc. 71-3)(“Appellate Brief”).98 In the Appellate Brief, Lee argued that
expulsion was “too severe and harsh,” and that there were “significant procedural errors in the
93
Lee does not dispute specifically the fact in the text that the Defendants propose, which
has ample support in the record. Accordingly, the Court deems the fact in the text undisputed. See
D.N.M. LR-Civ 56.1(b) (“All material facts set forth in the response will be deemed undisputed
unless specifically controverted.”).
94
Neither party asserts this fact. The Defendants, however, attach the DOS Sanctions Email
to the MSJ Memo. Lee does not dispute that this is an accurate copy of the DOS Sanctions Email.
This information is relevant because it provides details about Lee’s sanctions. See Response at
27.
95
The Court considers this fact for the reasons stated in n.94, supra.
96
The Court considers this fact for the reasons stated in n.94, supra.
97
The Court considers this fact for the reasons stated in n.94, supra.
98
Lee again, as he does with nearly all facts laid out in the Defendants’ MSJ Memo, disputes
the facts described in the Defendants’ MSJ Memo ¶ 26, at 12, as “irrelevant and immaterial because
[they] do not go to whether Plaintiff’s due process rights were violated and whether such violations
prejudiced Plaintiff.” Response at 10-11 (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242,
249 (1986)). The Court reiterates its previous description of the standard it applies to relevance
disputes, see n.5, supra. Moreover, Lee’s ability to appeal is relevant to whether the Defendants
provided him with a sufficient opportunity to be heard. See Response at 27.
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sanctioning process” because the procedures infringed on Lee’s due process rights.
See
Defendants’ MSJ Memo ¶ 26, at 12 (asserting this fact); Appellate Brief at 33.99 Lee concluded
that “given the severity of the sanctions involved in this type of matter, it is a violation of
Respondent’s due process rights to prohibit counsel from representing the Respondent at any
hearing, formal or informal.” Appellate Brief at 33. See Defendants’ MSJ Memo ¶ 26, at 12
(asserting this fact).100 Frank responded, and informed Lee that the sanctions were “appropriate,
proportional, and supported by the facts.” UNM Office of the President Appeal of Sanctions
Letter, dated August 23, 2016, filed February 6, 2016 (Doc. 71-3)(“Aug. 23 Letter”). See
Defendants’ MSJ Memo ¶ 26, at 12 (asserting this fact).101 Frank continued that “you do not raise
any procedural issues that constitute significant error, nor do you identify any procedural issues
that materially affected the outcome of the sanction decision.” Aug. 23 Letter at 34. See
Defendants’ MSJ Memo ¶ 26, at 12 (asserting this fact).102 Frank therefore affirmed the DOS
sanctioning decision. See Defendants’ MSJ Memo ¶ 26, at 12 (asserting this fact); Aug. 23 Letter
at 34.103
PROCEDURAL BACKGROUND
1.
The Complaint.
Lee filed suit in the Second Judicial District Court, County of Bernalillo, State of New
Mexico, alleging in Count I that UNM’s sexual misconduct investigation procedures violate his
99
The Court considers this fact for the reasons stated in n.98, supra.
100
The Court considers this fact for the reasons stated in n.98, supra.
101
The Court considers this fact for the reasons stated in n.98, supra.
102
The Court considers this fact for the reasons stated in n.98, supra.
103
The Court considers this fact for the reasons stated in n.98, supra.
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federal and state constitutional rights to due process as protected by the Fourteenth Amendment to
and Article II, § 18 of the Constitution of the State of New Mexico. See Complaint ¶¶ 146-171,
at 24-28. Lee alleges that he “has a protected liberty interest in his good name, reputation, honor,
and integrity,” and “a protected property interest in continuing his education at the University of
New Mexico.” Complaint ¶¶ 150-52, at 25. He alleges that the Defendants deprived him of those
interests by expelling him from UNM without providing him certain procedural safeguards,
including adequate notice of the allegations, an opportunity to respond, the opportunity to crossexamine his accuser, the identification of all of the evidence and witnesses on which UNM relied
during the investigation, a thorough and impartial investigation, and the active participation of
legal counsel during the disciplinary proceedings. See Complaint ¶ 154, at 25-26. Because of
these alleged constitutional violations, Lee seeks monetary relief for damages. See Complaint ¶¶
170-71, at 28. In Count II, Lee argues that the Defendants’ Due Process violations entitle him to
injunctive relief, specifically
a reversal of the outcome and findings of the UNM investigation, expungement of
[his] educational records reflecting the improper discipline/sanction and production
of verification of such expungement . . . , prohibiting UNM from disclosing [Lee’s]
education records reflecting discipline during the pendency of this action, and
readmittance to UNM to complete his graduate program.
Complaint ¶ 174, at 28-29. In Count III, Lee requests a determination pursuant to the Declaratory
Judgment Act, 28 U.S.C. § 2201, and the New Mexico Declaratory Judgment Act, N.M. Stat. Ann.
§ 44-6-1 to -15 that “the investigative and sanctioning processes utilized by Defendants are
unconstitutional, improper, and violative of [his] rights, and, as such, inadequate and invalid as a
matter of law.” Complaint ¶ 178, at 29.
In Count IV, Lee pleads a claim for violation of Title IX, 20 U.S.C. § 1681(a). See
Complaint ¶¶ 183-212, at 30-33. Lee alleges that the “Defendants failed to provide [him with] the
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full benefits and services of and excluded him from participation in and discriminated against him
with regards to programs, services and/or activities at the University of New Mexico because of
his sex.” Complaint ¶ 189, at 30. He alleges that the “Defendants treated [him] differently and
less favorably on the basis of his sex with regard to the ‘Probable Cause’ finding made by UNM
OEO.” Complaint ¶ 204, at 32. He further alleges that the “Defendants intentionally treated
Complainant preferentially on the basis of her sex by adopting her statements as true, even though
the statements were illogical, inconsistent, or contrary to other witnesses, and ignoring all evidence
exculpatory to Plaintiff.” Complaint ¶ 207, at 33. Finally, Lee alleges that the “Defendants were
motivated by gender bias in initiating, adjudicating, and implementing the disciplinary proceeding
and sanctions against [him] based upon his sex as a male student accused of sexual misconduct
because of the increasing public attention and controversy of sexual assault on campuses and at
UNM specifically.” Complaint ¶ 209, at 33.
In Count V, Lee pleads a claim against UNM for breach of contract. See Complaint ¶¶ 213217, at 33-34. Lee alleges that he had “the reasonable expectation[] that UNM would fairly and
without bias implement and enforce the provisions and [policies] set forth in its official
publications.” Complaint ¶ 214, at 34. Lee then alleges that UNM breached its agreements by
“failing to abide by its policies and procedures,” “failing to conduct a fair and impartial
investigation and hearing,” “failing to provide [a] fair and impartial sanctioning process,” “failing
to provide adequate due process, to include the right to confront witnesses and one’s accuser,”
“failing to adequately and properly consider and weigh evidence,” and “failing to allow adequate
representation during the investigative and sanctioning processes.” Complaint ¶ 215, at 34. In
Count VI, Lee pleads a claim for breach of the implied covenant of good faith and fair dealing.
See Complaint ¶¶ 218-222, at 34-35. Lee alleges that his contracts with UNM “implicitly
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guaranteed that any investigatory and disciplinary proceedings would be conducted with basic
fairness.” Complaint ¶ 219, at 35. He further alleges that “UNM acted in bad faith when it failed
to provide adequate due process to safeguard [his] interests in his education.” Complaint ¶ 220, at
35. The Defendants removed the case to federal court based on federal question jurisdiction. See
Notice of Removal ¶ 4, at 2, filed December 14, 2016 (Doc. 1)(“Notice of Removal”).
2.
The Sept. 2018 Order.
The Court issued an Order disposing of the Due Process Motion, the Title IX Motion and
the Contract Motion. See Order, filed September 20, 2018 (Doc. 36)(“Sept. 2018 Order”). In the
Order, the Court concluded that Lee “alleged facts sufficient to state a plausible Fourteenth
Amendment procedural due process claim for injunctive and declaratory relief against the Board
of Regents of UNM and Frank in his official capacity as president of UNM.” Sept. 2018 Order at
2. The Court concluded that Lee has a protected property interest in continued enrollment at UNM
and a protected property interest in “his good reputation.” Sept. 2018 Order at 2. The Court further
held
that preponderance-of-the-evidence is not the proper standard for disciplinary
investigations such as the one that led to Lee’s expulsion, given the significant
consequences of having a permanent notation such as the one UNM placed on Lee’s
transcript. That UNM provides an evidentiary hearing in cases of alleged nonsexual misconduct but not in cases of alleged sexual misconduct supports Lee’s
claim that the process he received was constitutionally inadequate. In addition, Lee
did not receive notice that he faced sanctions for allegations related to underage
drinking until his sanctions hearing, when it was too late to prepare an adequate
defense. The Court concludes, however, that Lee cannot successfully sue
Defendants for damages pursuant to § 1983, because (i) UNM is not a “person”
under § 1983; and (ii) given that the contours of Lee’s due process rights were not
clearly established, the Individual Defendants are entitled to qualified immunity.
The Court also concludes that the Defendants are entitled to governmental
immunity under the New Mexico Tort Claims Act, NMSA 1978, § 41-4, so Lee
cannot properly sue the Defendants for damages for violation of the Constitution of
the State of New Mexico. The Court concludes that the UNM policies and
procedures for students accused of sexual misconduct are guidelines for operation
and lack specific promissory language necessary to create contractual obligations,
so Lee cannot properly sue Defendants for breach of contract or breach of the
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implied covenant of good faith and fair dealing. At the hearing, Lee conceded his
claims pursuant to Title IX, and the Court dismissed them at the time. The Court
nevertheless finds that Lee’s Title IX claims are not pled with sufficient specificity
to infer that UNM treated Lee differently on account of his gender.
Sept. 2018 Order at 3. The Court dismissed Lee’s claims for damages against UNM, the Board of
Regents of UNM, Frank, Buchs, Cowan, Cordova, and Chibanga. See Sept. 2018 Order at 4. The
Court also granted the Title IX Motion and the Contract Motion. See Sept. 2018 Order at 4. The
Court also dismissed with prejudice the Complaint’s Counts I and II as pled against Buchs, Cowan,
Cordova, and Chibanga. See Sept. 2018 Order at 4. Finally, the Court dismissed with prejudice
the Complaint’s Counts IV, V, and VI. See Sept. 2018 Order at 4.
3.
The May 2019 Order.
The Court amended its Sept. 2018 Order in May 2019. See Amended Order, filed May 30,
2019 (“Amended Order”). The only change the Court made was to remove the sentence:
“Moreover, the Court concludes that preponderance-of-the-evidence is not the proper standard for
disciplinary investigations such as the one that led to Lee’s expulsion, given the significant
consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”
Amended Order n.1 at 1.
4.
The August 13, 2019 Email.
The Court received an email on August 13, 2019, from William Kidder, a research
associate at UCLA’s Civil Rights Project. See Email from William Kidder to Judge Browning
(dated Aug. 13, 2019), filed August 27, 2019 (Doc. 59)(“Kidder Email”). The email read, in its
entirety:
I noticed Judge Browning’s unpublished ruling in Lee v. University of New
Mexico (Sept. 2018) in which he concluded “that preponderance-of-the-evidence
is not the proper standard for disciplinary investigations” such as campus Title IX
matters. I have had no contact with either party in this case, and my intent in this
email is to simply to share my new research article in the peer-reviewed Journal of
College and University Law that looks broadly at the standard of evidence in Title
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IX campus proceedings as well as other civil rights and administrative contexts
including physician misconduct license cases and research misconduct cases linked
to federal grants: https://jcul.law.rutgers.edu/category//journal-articles/ Thank you
for your consideration.
Kidder Email at 1.
5.
The Defendants’ Motion for Summary Judgment.
The Defendants filed a Motion for Summary Judgment on February 6, 2020.
See
Defendants’ Motion for Summary Judgment, filed February 6, 2020 (Doc. 70)(“Defendants’
MSJ”). The Defendants argue that Lee “cannot raise any genuine issue of material fact” related to
his federal constitutional due process claim. Defendants’ MSJ at 1. The Defendants note that Lee
opposes the Defendants’ MSJ. See Defendants’ MSJ at 1. The Defendants ask the Court to dismiss
Lee’s “remaining claims for injunctive and declaratory relief for alleged violations of his federal
constitutional right to due process and enter final judgment in their favor.” Defendants’ MSJ at 2.
6.
The Memorandum Brief in Support of Defendants’ Motion for Summary
Judgment.
The Defendants filed a Memorandum Brief in Support of their Motion for Summary
Judgment on February 6, 2020. See Memorandum Brief in Support of Defendants’ Motion for
Summary Judgment, filed February 6, 2020 (Doc. 71)(“Defendants’ MSJ Memo”).
The
Defendants note that the Court has dismissed all of Lee’s claims, except his due process claim
“arising from the investigative and sanctioning process that resulted in his expulsion from UNM
for sexual misconduct.” Defendants’ MSJ Memo at 1.
First, the Defendants contend that UNM’s failure to provide Lee with an adversarial
hearing with an opportunity to cross-examine witnesses does not violate his due process rights.
See Defendants’ MSJ Memo at 17. The Defendants assert that Lee contends that, before his
expulsion from UNM for sexual misconduct, UNM should have provided Lee with an adversarial
hearing where he could (i) cross-examine witnesses, including his accuser; (ii) present evidence;
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and (iii) have active representation of counsel. See Defendants’ MSJ Memo at 17. The Defendants
argue that universities are not courtrooms, and that students facing expulsion need not always
receive an adversarial hearing with the features Lee requests. See Defendants’ MSJ Memo at 1718 (citing Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1242-43 (10th Cir. 2001)(“Watson”)).
Further, the Defendants note that, in Haidak v. University of Massachusetts-Amherst, 933 F.3d 56
(1st Cir. 2019)(“Haidak”), the United States Court of Appeals for the First Circuit held that
universities need not provide students with adversarial hearings. See Defendants’ MSJ Memo at
18. The Defendants maintain that the Court, when determining whether due process requires a
particular procedural safeguards, should evaluate “the extent to which that procedural safeguard
would result in a more accurate finding,” and “the extent to which it would ‘decrease the risk of
an erroneous deprivation.’” Defendants’ MSJ Memo at 19 (quoting Haidak, 933 F.3d at 69-70.)
The Defendants assert that, here, the OEO investigator already questioned the accuser “at
length . . . both in writing and orally,” and, therefore, cross examination would not have generated
a more accurate result. Defendants’ MSJ Memo at 19-20. The Defendants also raise concerns
about “the questioning of the accuser by her alleged assailant.” Defendants’ MSJ Memo at 20.
The Defendants argue that UNM’s “inquisitorial process” satisfies “the minimum requirements of
due process for student discipline.” Defendants’ MSJ Memo at 20-21. Consequently, the
Defendants avow that Lee received sufficient due process, because Lee received notice and a
meaningful opportunity to be heard. See Defendants’ MSJ Memo at 20.
Second, the Defendants argue in the alternative that Lee did not have a right to an
adversarial hearing, because his accuser’s credibility is not at issue. See Defendants’ MSJ Memo
at 21. The Defendants maintain that the United States Court of Appeals for the Sixth Circuit has
held that, where witness credibility is at issue, a student may be entitled to cross-examination in
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non-consensual sexual misconduct cases. See Defendants’ MSJ Memo at 21. The Defendants
also assert that the United States Court of Appeals for the Tenth Circuit has found that where a
student “‘candidly admitted his guilt,” he “was not prejudiced by a lack of notice.’” Defendants’
MSJ Memo at 21 n.9 (citing Watson, 242 F.3d at 1242). Here, the Defendants contend that the
OEO’s finding that Lee had engaged in sexual misconduct did not turn on Roe’s credibility. See
Defendants’ MSJ Memo at 22. Instead, the Defendants argue that the OEO based its sexual
misconduct finding primarily on Lee’s “incriminating admissions” to the UNMPD. Defendants’
MSJ Memo at 22. The Defendants acknowledge that the OEO considered one other witness’s
statement -- Lee’s roommate’s statement -- when it determined Lee had engaged in sexual
misconduct. See Defendants’ MSJ Memo at 23. Nonetheless, the Defendants aver that “the
damning admissions and statements made by Plaintiff himself were more than sufficient to
establish that Plaintiff had engaged in the sexual misconduct for which he was expelled from
UNM.” Defendants’ MSJ Memo at 23. The Defendants also emphasize that UNM had an interest
in both protecting the accuser’s safety and emotional well-being, and in preserving its
administrative resources. See Defendants’ MSJ Memo at 23.
Third, the Defendants contend that the OEO’s sexual misconduct investigation was not
biased. See Defendants’ MSJ Memo at 24. The Defendants maintain that the Court should apply
a rebuttable presumption that the decision-making process was fair and impartial. See Defendants’
MSJ Memo at 24. Lee alleges that the investigator, Buchs, held actual bias against him. See
Defendants’ MSJ Memo at 24. The Defendants assert that Lee fails to provide any concrete
examples of Vele Buchs’ alleged bias. See Defendants’ MSJ Memo at 25. Further, the Defendants
note that Lee has not indicated that Buchs “knew him before the investigation or that she had any
bias against him.” Defendants’ MSJ Memo at 25. The Defendants also note that an appeal board,
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consisting of the UNM President and UNM Board of Regents, approved Buchs’ sexual misconduct
finding. See Defendants’ MSJ Memo at 25.
Fourth, the Defendants argue that UNM properly applied a preponderance-of-the-evidence
standard. See Defendants’ MSJ Memo at 26. They allege that the OEO need not have applied a
higher evidentiary standard when it found that Lee engaged in sexual misconduct. See Defendants’
MSJ Memo at 26. The Defendants have not “found a single federal case that has found that the
use of the preponderance standard in school disciplinary proceedings -- even those involving
sexual misconduct -- is violative of due process.” Defendants’ MSJ Memo at 26. The Defendants
argue, therefore, that the preponderance-of-the-evidence standard satisfies Lee’s due process
rights. See Defendants’ MSJ Memo at 26-28.
Finally, the Defendants maintain that the DOS did not violate Lee’s due process rights
when it considered his provision of alcohol to minors as a factor in his sanctions for sexual
misconduct. See Defendants’ MSJ Memo at 28. The Defendants argue that “there is no evidence
that Plaintiff was sanctioned by UNM for an alcohol violation . . . .” Defendants’ MSJ Memo at
27-28 (emphasis in original). The Defendants continue that the alcohol provision was “at most,
an aggravating factor . . . when determining the appropriate level of sanctioning . . . .” Defendant’s
MSJ at 29. Next, the Defendants aver that Lee received constitutionally adequate notice of the
charges against him, including: (i) notification from a Student Conduct Officer that the OEO would
investigate Lee’s “alleged sexual assault”; (ii) a meeting with the OEO Director and Title IX
Coordinator, where he received information on the upcoming investigation; (iii) a document with
allegations of sexual misconduct from his accuser; and (iv) a document with charges against him
and evidence gathered during the investigation.
Defendants’ MSJ Memo at 29-30.
The
Defendants argue that this notice was sufficient, and that Lee was not entitled to receive notice of
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all factors that UNM would consider in setting his sanction for sexual misconduct.
See
Defendants’ MSJ Memo at 30. Moreover, the Defendants contend that Lee was not prejudiced by
a lack of notice, because he admitted to the UNMPD that he provided alcohol to minors. See
Defendants’ MSJ Memo at 31. The Defendants therefore conclude that “[a]dditional notice would
not have allowed [Lee] to better defend the charges of sexual misconduct against him . . . .”
7.
The Response to Defendants’ Motion for Summary Judgment.
Lee filed a Response to Defendants’ Motion for Summary Judgment on March 23, 2020.
See Response to Defendants’ Motion for Summary Judgment at 1, filed March 23, 2020 (Doc.
76)(“Response”). Lee argues that a genuine issue of material fact exists: whether Lee received
sufficient process during the OEO’s investigation and his expulsion from UNM. See Response at
1.
Lee insists that he has a property interest in his enrollment at UNM, and a liberty interest
in his reputation. See Response at 15-16 (citing Amended Order at 3, filed May 30, 2019 (Doc.
53)). Lee also argues that “case law confirms” Lee’s liberty interest in his “reputation and good
name.” Response at 16 (collecting cases). Lee therefore asserts that he “was entitled to due
process before UNM deprived him of his property interest in his continued enrollment at UNM
and his liberty interest in his good name and reputation.” Response at 16. Lee avers that the Court
should apply the Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), test to determine what due
process is required here. See Response at 17. Consequently, Lee contends that the Court should
balance: (i) the private interest affected -- here Lee’s “property interest in his continued enrollment
at UNM and liberty interest in his good name and reputation”; (ii) “the value of additional
procedural safeguards in preventing an erroneous finding”; and (iii) “the additional burdens that
UNM would suffer from implementing the additional safeguards.” Response at 17 (citing
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Mathews v. Eldridge, 424 U.S. at 334-35). Moreover, Lee alleges that because his sexual
misconduct investigation is a fact intensive inquiry, there is a high risk of error. See Response at
17. Accordingly, Lee maintains that additional procedural safeguards would reduce the risk of
error in his case. See Response at 18.
Further, Lee contends that the Defendants violated his due process rights, because the OEO
did not hold a hearing or allow Lee to cross-examine witnesses. See Response at 18. Lee avers
that Roe’s credibility is a key issue, because the OEO had to determine whether to believe Lee or
Roe. See Response at 18.
Next, Lee turns to the procedural safeguards to which he argues he was entitled. See
Response at 18. First, Lee argues that due process requires the OEO to hold a hearing to determine
whether Lee engaged in sexual misconduct. See Response at 19. Lee maintains that “‘students
facing suspension [or expulsion] and the consequent interference with a protected property interest
must be . . . afforded some kind of hearing.’” Response at 19 (quoting Goss, 419 U.S. at 579).
Further, Lee argues that hearings are necessary where a student faces expulsion to allow an
impartial factfinder to hear both sides of a case. See Response at 19. Lee alleges that he was not
able to cross-examine any witnesses, nor did he receive the names of the witnesses whom the OEO
interviewed during its investigation. See Response at 19. Additionally, he contends that a single
person should not investigate and decide whether a student has committed sexual misconduct. See
Response at 20, 26-27 (arguing that the OEO process is inherently biased because “a single party
is investigator, prosecutor, judge, and jury”). Further, Lee alleges that “there is no indication [Roe]
was effectively questioned during the OEO investigation.” Response at 20. Lee asserts that “a
hearing before an impartial factfinder allows the factfinder to hear testimony at the same time,
allow for cross-examination, evaluate witness’s demeanor, and address conflicting testimony
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between witnesses in real time.” Response at 23. Further, Lee contends that Vele Buchs was
biased because she was “hostile and aggressive” towards Lee, and “did not trust” Lee or
Goodnight. Response at 27-28.
Lee then avers that Roe could consent to sexual contact despite “the fact that alcohol was
involved and there were discussions of Ms. Roe’s level of intoxication.” Response at 24. Lee
asserts that Buchs had to consider the following factors to determine whether Roe was too
incapacitated to consent to sexual contact: (i) “behavior like stumbling or otherwise exhibiting loss
of equilibrium”; (ii) “slurred speech or word confusion”; (iii) “bloodshot, glassy or unfocused
eyes”; (iv) “vomiting, especially repeatedly”; (v) “being disoriented, or confused as to time or
place”; and (vi) “loss of consciousness.” Response at 25 (citing UNM Policy # 2740, § 3).
Because the OEO examined the aforementioned factors, Lee contends that the OEO “made a
factual determination after evaluating the credibility of witnesses,” and therefore, Lee “was
prejudiced by not receiving an opportunity to cross-examine witnesses.” Response at 25. Lee
insists that these inadequate procedures substantially prejudiced him. See Response at 25.
Next, Lee argues that the OEO’s use of the preponderance-of-the-evidence standard
violates Lee’s due process rights. See Response at 29. Lee asserts that a university sexual
misconduct finding’s consequences are similar to criminal consequences, particularly regarding
reputational injury. See Response at 29. Lee declares, therefore, that a clear-and-convincing
evidence standard is appropriate in “quasi-criminal proceeding[s]” like his expulsion from UNM.
Response at 29-30.
Finally, Lee contends that the OEO violated his due process rights by considering his
provision of alcohol to minors as a factor when determining his sanctions. See Response at 30.
Lee alleges that he never received “notice and an opportunity to be heard on the charge related to
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underage drinking because that was addressed at the sanction hearing.” Response at 30-31. Lee
distinguishes Watson, 242 F.3d at 1240-42, from his own case, because the OEO’s finding on
provision of alcohol to minors “did not go to the underlying motive of the case,” as in Watson, but
instead “was a completely separate charge against” Lee. Response at 31. Lee avers that notice
that the OEO would consider his provision of alcohol to minors would have given him “the
opportunity to defend against the allegations and explain the circumstances.” Response at 31.
8.
The Memorandum Opinion and Second Amended Order.
The Court issued a Memorandum Opinion and Order (“MOO”) on March 30, 2020. See
Lee v. Univ. of New Mexico, 449 F. Supp. 3d 1071 (D.N.M. 2020)(Browning, J.). In the MOO,
the Court first explained that Lee cannot sue UNM for damages under § 1983, because UNM is
not a “person” under the statute. See MOO, 449 F. Supp. 3d at 1080. Next, the Court concluded
that Lee cannot sue Frank, Buchs, Cowan, Cordova, and Chibanga (the “Individual Defendants”)
under § 1983, because the Individual Defendants are entitled to qualified immunity. See MOO,
449 F. Supp. 3d at 1080. The Court then concluded that Lee pled facts sufficient to show that the
Defendants violated his constitutional right to due process of law. See MOO, 449 F. Supp. 3d at
1080. Additionally, the Court held that the Defendants are entitled to immunity under the New
Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1 to -30, and therefore Lee cannot sue the
Defendants for violating the Constitution of the State of New Mexico. See MOO, 449 F. Supp. 3d
at 1080. Next, the Court concluded that UNM’s procedures and policies “do not create contractual
obligations.” MOO, 449 F. Supp. 3d at 1080. The Court then held that the Individual Defendants
are not liable under Title IX, because individuals cannot be liable for Title IX violations. See
MOO, 449 F. Supp. 3d at 1080. Finally, the Court concluded that Lee has not alleged sufficient
facts to create an inference of gender bias. See MOO, 449 F. Supp. 3d at 1081. Accordingly, the
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Court dismissed most of Lee’s claims, but did not dismiss Lee’s (i) Title IX claim against UNM;
(ii) Due Process claims against UNM; or (iii) Due Process claim against UNM’s current president.
See MOO, 449 F. Supp. 3d at 1155.
9.
The Reply Brief in Support of Defendants’ Motion for Summary Judgment.
On May 18, 2020, the Defendants filed a Reply Brief in Support of Defendants’ Motion
for Summary Judgment. See Reply Brief in Support of Defendants’ Motion for Summary
Judgment at 1, filed May 18, 2020 (Doc. 87)(“Reply”). The Defendants insist that Lee does not
have a right to an adversarial hearing with cross-examination before expulsion from UNM. See
Reply at 1. They assert that “such a right only arises where there is a credibility determination to
be made.” Reply at 1. Here, the Defendants contend, the OEO did not need to make a credibility
determination, because Lee admitted to sexual misconduct. See Reply at 1-2. The Defendants
maintain that there are no “‘competing narratives’” about Lee’s alleged misconduct, which would
require cross-examination. See Reply at 12 (citing Doe v. Baum, 903 F.3d 575, 581 (6th Cir.
2018)(“Baum”)). Further, the Defendants aver that all cases which Lee cites in support of the
proposition that “a student accused of sexual misconduct has a due process right to an adversarial
hearing with the opportunity to cross-examine his accuser” limit their holdings to proceedings
where “there is an actual credibility determination to be made.” Reply at 12.
The Defendants insist that this matter is not a he said/she said dispute. See Reply at 12.
Here, the Defendants contend that because the outcome does not depend on whether the factfinder
believes Roe, UNM’s “significant interest in encouraging student victims of sexual assault to
report and stand by their accusations outweighs the accused student’s interest in being deprived of
his continued education.” Reply at 12-13 (citing MOO, 449 F. Supp. 3d at 1125). The Defendant’s
maintain that UNM based its sexual misconduct finding on Lee’s admissions to the UNMPD. See
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Defendant’s Reply at 13. The Defendants observe that Lee told the UNMPD that Roe was
extremely intoxicated and that he repeatedly tried to insert his penis into her mouth, but “never
succeeded in this act because Roe would not open her mouth and let him.” Reply at 13. The
Defendants argue that the OEO found Lee had engaged in sexual misconduct based on these
admissions. See Reply at 14. Accordingly, they insist that, because of the “damning nature of
Plaintiff’s own admissions, it is implausible that an adversarial hearing with its attendant
procedural safeguards would have reduced the risk of error or changed the outcome.” Reply at 14.
Next, the Defendants argue that Lee has not demonstrated that the OEO investigation was
biased. See Reply at 14-15. The Defendants argue that an inquisitorial adjudication is fair in
important administrative decisions like the one here. See Reply at 14 (citing Haidak, 933 F.3d at
68). Further, the Defendants argue that Buchs did not have conflicting roles in the investigation
and that she never acted as Roe’s advocate. See Reply at 14. The Defendants further contend that
Buchs did not predetermine the claim against Lee. See Reply at 16.
Finally, the Defendants aver that UNM properly considered Lee’s provision of alcohol to
minors as a factor in determining his sexual misconduct sanction. See Reply at 16. The
Defendants maintain that UNM needs to provide Lee notice of the “charges” against him, and that
the only charge against Lee is sexual misconduct. See Reply at 16-17. Consequently, the
Defendants contend that a student need not receive “advance notice of every possible factor that
may be considered in setting the level of sanction,” because this requirement would be
“unworkable and does not appear to be supported by” any precedent. Defendants Reply at 17
(emphasis in original). Further, the Defendants assert that Watson, 242 F.3d at 1237, indicates
that the Tenth Circuit would not adopt Lee’s proposed notice standard. See Reply at 17. The
Defendants also purport to distinguish Greenhill v. Bailey, 519 F.2d 5 (8th Cir. 1975)(“Greenhill”),
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from the present case. See Reply at 17-18. Additionally, the Defendants note that Lee admitted - and has never denied -- that he provided alcohol to Roe and Goodnight. See Reply at 17-18. The
Defendants conclude, therefore, that additional notice would not have allowed Lee to better defend
against the assertion that he provided alcohol to minors. See Reply at 19.
10.
Stipulation of Dismissal of Plaintiff’s Title IX Claim.
On July 21, 2020, the parties filed a Stipulation of Dismissal of Plaintiff’s Title IX Claim.
See Stipulation of Dismissal of Plaintiff’s Title IX Claim at 1, filed July 21, 2020 (Doc.
96)(“Voluntary Dismissal”). In the Voluntary Dismissal, the parties “stipulate to the dismissal,
without prejudice, of Count IV (‘Violation of Title IX’) of the” Complaint. Voluntary Dismissal
at 1.
11.
The Hearing.
The Court held a hearing on the Defendants’ MSJ on September 28, 2020. See Clerk’s
Minutes at 1, filed September 28, 2020 (Doc. 106). The Court first asked the parties how things
differed at the hearing from the motion to dismiss stage. See Draft Transcript of Hearing at 5:1823 (taken September 28, 2020)(Court)(“Tr.”).104 The Defendants argued that things were different
from the motion to dismiss stage, because “credibility of the accuser is not at stake here,” thus
there is no “determination on the credibility of the accuser as such that due process would require
there to be an availability of cross-examination.” Tr. at 6:18-23 (Smith). The Court asked how
someone would determine in advance whether credibility was at issue. See Tr. at 7:12-21 (Court).
The Defendants compared the present case to Plummer v. University of Houston, 860 F.3d 767
(5th Cir. 2017)(“Plummer”). See Tr. at 8:9-10 (Smith). The Defendants insisted that, as in
104
The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.
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Plummer -- where a university factfinder relied on video evidence from a sexual assault rather than
an accuser’s testimony -- here, due process does not require cross-examination, because the OEO
investigator based her finding on Lee’s admissions to the UNMPD. See Tr. at 8:13-9:13 (Smith).
Next, the Court noted that it was not ready to classify this case as a quasi-criminal
proceeding. See Tr. at 9:16-18 (Court). The Court explained that, during criminal cases,
defendants will often contest confessions by saying the confessions were coerced or inaccurate.
See Tr. at 9:20-25 (Court). In such cases, the Court continued, the Court will still have a criminal
trial with cross-examination available to the defendant. See Tr. at 10:1-2 (Court). The Court asked
the Defendants how it is different “where a student is drug in rather quickly by the police after an
incident,” as here, “and gives some statements -- whether we call them a confession or not” -- from
the criminal trial scenario that the Court had described. Tr. at 10:2-8 (Court). The Defendants
responded that different constitutional rights and interests are at issue, because the constitutional
right to confrontation arises under the Sixth Amendment of the Constitution of the United States
of America, rather than the Due Process Clause. See Tr. at 10:11-20 (Smith). Here, the Defendants
urged the Court to apply the Mathews v. Eldridge, 424 U.S. at 334-35, balancing test. See Tr. at
11:11 (Smith). The Defendants insisted that there will be no added benefit to the factfinding
process by allowing cross-examination in this case. See Tr. at 14:1-3 (Smith). The Defendants
directed the Court to examine the FLOD. Tr. at 14:17 (Smith). The Defendants insisted that the
FLOD indicates that the OEO based its decision entirely on Lee’s admissions rather than on Roe’s
allegations. See Tr. at 14:11-16 (Smith).
The Defendants acknowledged that “being very intoxicated is not necessarily admission to
sexual misconduct.” Tr. at 16:18-19 (Smith). Nonetheless, the Defendants stated that, here, Lee
made
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an admission that not only was she very intoxicated, she had to be carried to the
room, he tried to insert his penis into her mouth and that he was unsuccessful in
those efforts because she wouldn’t open her mouth, and those were the statements
that were relied upon by the OEO investigator to establish indicia of non-consent
such that there was a violation of UNM policy.
Tr. at 16:20-17:2 (Smith). The Court asked whether Roe was having consensual sex with
Goodnight at the same time she refused to have sex with Lee. See Tr. at 17:9-12 (Court). The
Defendants stated that UNM has found that Goodnight engaged in nonconsensual sex with Roe,
and that UNM expelled Goodnight as a result. See Tr. at 17:15-21 (Smith). The Court expressed
doubt that UNM could have made a sexual misconduct finding on the basis of Lee’s statements
alone, without considering Roe’s statements. See Tr. at 18:23-19:7 (Court). The Defendants
insisted that the Court should focus on whether the OEO investigator made a credibility
determination regarding Roe. See Tr. at 19:21-21:21 (Smith). The Court stated that, to make the
sexual misconduct finding, it seems that UNM “had to have credited Roe’s testimony.” Tr. at
23:18-19 (Court). The Defendants asserted that, here, it does not matter what Roe said, and that
therefore cross-examination is unnecessary, because it would not help the factfinder reach the
truth. See Tr. at 24:21-25:1 (Smith).
Next, the Defendants noted that UNM’s policy states that “initiating sexual contact with
somebody who is too incapacitated to consent” is sexual misconduct and violates UNM policy.
Tr. at 27:3-9 (Smith). The Defendants argue, therefore, that Lee’s admissions to the UNMPD are
sufficient to establish a violation of UNM policy, because he admitted that Roe was very
intoxicated and that he attempted to initiate sexual contact with her. See Tr. at 27:1-28:24 (Smith).
Lee argued that he lacked notice of the evidence that would be presented against him. See
Tr. at 33:17-25 (Crow). Lee contended that he is entitled to see a comprehensive list of all
witnesses against him to prepare for a hearing. See Tr. at 35:1-7 (Crow). Lee cited Flaim v. Med.
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Coll. of Ohio, 418 F.3d 629 (6th Cir. 2005)(“Flaim”), where Lee contends that the accused student
was able to present his own version of events at a hearing and had the opportunity to note
inconsistences in the officer’s testimony. See Tr. at 35:22-36:7 (Crow). Lee noted that, here, the
interviewing officer was never called to testify at Lee’s hearing. See Tr. at 36:8-12 (Crow). Lee
contended that “the only thing relied upon” in the OEO’s sexual misconduct determination “was
the police officer’s report . . . hearsay, essentially.” Tr. at 36:11-13 (Crow). Lee emphasized that
“the problem is that we’re not given an opportunity to prepare for a hearing, we’re not given the
opportunity to present testimony when it is to contradict the testimony of an officer or anything in
the report, nothing to that effect.” Tr. at 36:20-24 (Crow). The Court asked whether UNM’s
sexual misconduct policy is similar to California’s rape statute, which considers sex with an
intoxicated person to be rape. See Tr. at 37:4-37:12 (Court).105 The Court continued: “once Lee
spits out several times that Roe was heavily intoxicated, isn’t he in trouble trying to establish any
sort of consent?” Tr. at 37:14-17 (Court). The Court stated that Lee may need to demonstrate that
105
Cal. Penal Code § 261(a) provides:
(a)
Rape is an act of sexual intercourse accomplished with a person not the
spouse of the perpetrator, under any of the following circumstances . . .
(3)
Where a person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled substance,
and this condition was known, or reasonably should have been
known by the accused.
Cal. Penal Code § 261(a) (West 2013). See People v. Braslaw, 233 Cal. App. 4th 1239, 1245, 183
Cal. Rptr. 3d 575, 580 (2015), as modified (Feb. 17, 2015)(concluding that a person was too
intoxicated to consent to sex where the person was vomiting and had been put in the shower by
her friends to clean up).
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Roe consented. See Tr. at 37:18-20 (Court). Lee responded that this problem is “even more in
favor of having a hearing.” Tr. at 37:21-22 (Crow).
Next, Lee argued that the largest risk in university sexual misconduct cases is “potentially
coming up with an erroneous result. See Tr. at 39:23-40:3 (Crow). Lee also noted that the factual
record indicates that Lee further explained why he made “some of those statements . . . to the
police officer.” Tr. at 40:11-12. Lee therefore insisted that cross-examination is necessary in
every university sexual misconduct proceeding. See Tr. at 40:20-31:3 (Crow). Nonetheless, Lee
admitted that no other court had “gone that far.” Tr. at 41:2-7 (Court, Crow).
The Court noted that Lee may have admitted the encounter was nonconsensual, because
Lee (i) stated that Roe was heavily intoxicated; (ii) provided nothing to indicate that she was
consenting; and (iii) from “the fact that she was closing her mouth to him inserting the penis is an
inference you could draw that she’s refusing consent.” Tr. at 42:2-10 (Court). Lee avowed that
any sexual contact with Roe was consensual. See Tr. at 42:15-25 (Crow). Lee disputed the
Defendants’ characterization of Plummer, noting that in Plummer the university relied upon a
video, rather than a police report, the video “wasn’t hearsay,” and the victim had no memory of
the event at issue. Tr. at 43:13 (Crow). Here, by contrast, Lee argued that Roe “testified that she
was well aware of the situation.” Tr. at 44:1-1 (Crow). Further, Lee argued that he would have
presented recordings during a hearing that would “support that issue of consent.” Tr. at 45:5-6
(Crow). Lee conceded that he “didn’t know” if those recordings are part of the record before the
Court. Tr. at 45:15-17 (Court, Crow).
The Court asked Lee how he would “write his due process right” if the Court does not
agree that accused students should have the ability to cross-examine their accusers. See Tr. at
46:12-16 (Court). Lee responded that
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to the extent that there has been no affirmative admission by the accused that he
has admitted some form of policy violation, then the university must provide some
form of procedural safeguard to make sure that the accused has an opportunity to
confirm or in some cases not confirm that there was a policy violation.
Tr. at 46:17-23 (Crow). The Court asked why a procedure such as interrogatories would not
provide sufficient due process rather than live cross-examination, given that “the university has an
interest in encouraging women to come forward” and it is “not unheard of that we conduct some
investigations” without live testimony. Tr. at 41:18-48:12 (Court).106 Lee argued that there is
“nothing like live cross-examination.” Tr. at 41:21-22 (Crow). The Defendants countered that
Lee’s admissions to the UNMPD that Roe consented to sexual contact with Lee. See Tr. at 54:1725 (Smith). The Defendants, therefore, contended that cross-examination would achieve no
benefit, but would embarrass or humiliate Roe. See Tr. at 55:7-17 (Smith).
The Defendants next compared this case to the hypothetical case of a student being
expelled for cheating. See Tr. at 59:10-12 (Smith). The Defendants described a situation where a
teacher sees a person cheating during a test, and the student “says yes, I admit I was looking over
the shoulder and copying answers, but I don’t think that was cheating.” Tr. at 59:16-18 (Smith).
The Defendants continued that, in such a situation, the student has “admitted to the critical facts,”
and there would be no benefit to cross-examining the teacher. Tr. at 59:19-22 (Smith). Similarly,
here, the Defendants argued that Lee has admitted to the important facts, and cross-examining Roe
would produce no further benefit. See Tr. at 59:22-60:4 (Smith).
106
As an example, the Court noted that recent investigations into the president have utilized
interrogatories rather than live cross-examination. See Tr. at 41:18-48:12 (Court); Full Text of
Mueller’s Questions and Trump’s Answers, Associated Press (April 18, 2019),
https://apnews.com/article/98f22511be924ced895ce5c0bfedfe37 (providing the text of Special
Counsel Robert Mueller’s questions to President Donald Trump, and President Trump’s answers).
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Next, the parties addressed the bias issue. See Tr. at 61:14 (Court, Smith). The Defendants
argued that Lee has not presented evidence that would lead a reasonable factfinder to conclude
that the OEO investigation was “infected by actual bias.” Tr. at 62:1-3 (Smith). The Defendants
contended that the Tenth Circuit has held that, “because honesty and integrity are presumed on the
part of a tribunal, there must be some countervailing reason to conclude that the decision maker is
actually biased with respect for the factual issues being adjudicated.” Tr. at 62:9-13 (Smith).
Accord Mangels v. Pena, 789 F.2d 836, 838 (10th Cir. 1986)(“Because honesty and integrity are
presumed on the part of a tribunal, there must be some substantial countervailing reason to
conclude that the decision maker is actually biased with respect for the factual issues being
adjudicated . . . .”).
Although the presumption against bias is rebuttable, the Defendants
continued, the burden to rebut the presumption is “heavy indeed.” Tr. at 62:19-25 (Smith)(quoting
Hess v. Bd. of Trs. Of S. Ill. Univ, 839 F.3d 668, 675 (7th Cir. 2016)(“Hess”)). The Defendants
noted that Lee provided evidence only of his subjective feelings of bias “based on his perception
of nonverbal cues or facial expression from Ms. Vele Buchs.” Tr. at 62:20-25 (Smith). Next, the
Defendants argued that the Supreme Court has held that the government may use a single
governmental administrator to make initial determinations, as it does in Social Security disability
claims. See Tr. at 68:2-19 (Smith); Sims v. Apfel, 530 U.S. 103 (2000). The Defendants then
argued that Buchs did not act as Roe’s advocate at any point in the proceedings. See Tr. at 68:2069:24 (Smith)(citing UNM Policy # 2740). Finally, the Defendants noted that Goodnight tried to
connect with Buchs on LinkedIn. See Tr. at 70:1-9 (Smith). The Defendants maintained that the
LinkedIn request does not relate to Lee and, moreover, that it occurred over a month after Buchs
issued her final determination that Lee had engaged in sexual misconduct. See Tr. at 71:9-20
(Smith).
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Lee argued that the inquisitorial model is inherently biased, because it relies on a single
investigator to make a sexual misconduct determination. See Tr. at 74:20-75:6 (Crow). Lee did
not “have any other argument as it relates to the bias issue.” Tr. at 79:3-4 (Crow). The Court asked
Lee whether any other court has found that the inquisitorial model is inherently biased. See Tr. at
79:5-13 (Court). Lee was unable to cite any cases that had found that the inquisitorial model is
inherently biased. See Tr. at 79:14-15 (Crow). Lee then noted that Buchs stated at some point
that she does not believe Goodnight. See Tr. at 82:2-4 (Crow). The Court said factfinders must
decide who they believe during the decision-making process, and that does not make the
factfinder’s decision inherently biased. See Tr. at 82:11-20 (Court). Lee responded that any oneparty investigation system is inevitably biased. See Tr. at 83:1-18 (Crow). The Defendants
countered that Lee had two levels of appeal if he was dissatisfied with Buchs’ determination. See
Tr. at 85:1-2 (Smith). Further, the Defendants noted that in Haidak, 933 F.3d at 69-70, the First
Circuit found that the inquisitorial model of truth seeking is sufficient for critical administrative
decisions. See Tr. at 86:11-24 (Smith).
The Defendants moved to the final issue: whether Lee was prejudiced, because he did not
receive adequate notice that the fact that he purchased alcohol for minors would be considered in
the sanctioning decision. See Tr. at 91:24-92:4 (Smith). The Defendants noted that, at UNM, the
sexual misconduct determination process is bifurcated from the sanctioning process -- the OEO
investigator determines whether a student has engaged in sexual misconduct, and then the DOS
applies a sanction. See Tr. at 92:5-17 (Smith). The Defendants contended that Lee was not
expelled because he alcohol to minors. See Tr. at 93:1-14 (Smith). The Defendants avowed that
the provision of alcohol is merely an “aggravating factor” in the sanctioning decision. See Tr. at
94:25-95:4 (Smith). The Defendants continued that, as in Watson, the provision of alcohol to
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minors was not an independent charge against Lee, and thus the Defendants are not required to
provide notice that they would consider it in their sanctioning decision.
Tr. at 96:1-23
(Smith)(citing Watson, 242 F.3d at 1241).107 The Defendants argued that no cases exist requiring
“that in order to provide adequate notice for due process, I have to tell you: here’s the twelve things
that I might consider as factors in setting my hearing for your violation of policy.” Tr. at 100:1419 (Smith). Further, the Defendants noted that Lee admitted to the UNMPD that he purchased
alcohol for minors, and under Watson, “a student is not credited by a lack of notice, when he
candidly admits his guilt because additional notice would not have allowed the student to better
defend the allegations.”
107
Tr. at 101:12-16 (Smith).108
Next, the Defendants asserted that
The Defendants read the following quote from Watson:
The board’s finding that the motive for the assault was racism does not constitute
an independent charge against Mr. Watson. The record does not indicate that the
board expelled Mr. Watson because he was racist, but that he was expelled for the
assault. Mr. Watson does not cite, and this court does not find, any precedent for
the proposition that notice must include all suspected motives for a student’s
actions. Such extensive notice is not even due in a criminal trial.
Watson, 242 F.3d at 1241.
108
The Court asked the Defendants to provide an exact quote from Watson, which is as
follows:
In order to establish a denial of due process, a student must show substantial
prejudice from the allegedly inadequate procedure. See, e.g., United States v.
Kennedy, 64 F.3d 1465, 1473 (10th Cir. 1995); Moore v. Reynolds, 153 F.3d 1086,
1111 (10th Cir. 1998); Keough v. Tate Cty. Bd. of Ed., 748 F.2d 1077 (5th Cir.
1984). Mr. Watson admitted to the board that he assaulted his roommate and that
he did so because his roommate was Hispanic and Catholic. See Goss, 419 U.S. at
581. Because Mr. Watson candidly admitted his guilt, Mr. Watson was not
prejudiced by a lack of notice.
Watson, 242 F.3d at 1242.
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Goodnight, who was nineteen years old at the time of the alleged sexual assault, was also expelled
for violating UNM’s sexual misconduct policy. See Tr at 103:9-17 (Smith). The Defendants
argued, therefore, that Lee’s purchase of alcohol for minors was not determinative in UNM’s
decision to expel him. See Tr. at 103:9-17 (Smith). Lee responded that provision of alcohol to
minors does not indicate a predisposition to commit sexual assault, as racism did in Watson. See
Tr. at 105:7-18 (Crow). The Court stated that, at the sentencing phase, courts have broad discretion
and can “consider just about anything.” Tr. at 106:4-18 (Court). Lee replied that his “problem
with the way the hearing happened” was that the hearing officer specifically asked Lee whether he
purchased alcohol for the minors. Tr. at 106:22-107:7 (Crow). The Court responded that requiring
the notice that Lee is proposing would overcomplicate sentencing. See Tr. at 108:3-5 (Court). The
Defendants added that, although Lee did not have advance notice that the hearing officer would
consider the provision of alcohol as a factor in his sanction, Lee had an opportunity to respond to
the provision of alcohol issue at the sanctioning hearing. See Tr. at 109:20-110:2 (Smith).
The Court advised counsel that it thought “some process for questioning the victim is
necessary here.” Tr. at 113:7-9 (Court). The Court continued that it was not “convinced that there
is any right to confrontation.” Tr. at 113:14-15 (Court). Further, the Court stated that it is unlikely
that “unitary models are inherently biased.” Tr. at 113:21-24 (Court). Consequently, the Court
noted that the primary question remains about Lee’s right to cross-examine Roe and whether Roe’s
credibility is at issue. See Tr. at 113:13-19 (Court).
LAW REGARDING SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the
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initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party’s
case.’”
Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1221 (D.N.M.
2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991)(alteration in Herrera v. Santa Fe Pub. Sch.)). See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)(“Celotex”).
Before the court can rule on a party’s motion for summary judgment, the moving
party must satisfy its burden of production in one of two ways: by putting evidence
into the record that affirmatively disproves an element of the nonmoving party’s
case, or by directing the court’s attention to the fact that the non-moving party lacks
evidence on an element of its claim, “since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears
the burden of proof at trial, the nonmovant “must go beyond the pleadings and
designate specific facts to make a showing sufficient to establish the existence of
an element essential to his case in order to survive summary judgment.” Cardoso
v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007)(internal quotations and brackets
omitted).
Plustwik v. Voss of Nor. ASA, No. 2:11CV00757 DS, 2013 WL 1945082, at *1 (D. Utah May 9,
2013)(Sam, J.)(emphasis added). “If the moving party will bear the burden of persuasion at trial,
that party must support its motion with credible evidence -- using any of the materials specified in
Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477
U.S. at 331 (Brennan, J., dissenting)(emphasis in original).109 Once the movant meets this burden,
rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine
issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)(“Liberty Lobby”). In American Mechanical Solutions, LLC v. Northland Piping, Inc., 184
109
Although the Honorable William J. Brennan, Jr., then-Associate Justice of the Supreme
Court, dissented in Celotex, this sentence is widely understood to be an accurate statement of the
law. See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 2727,
at 470 (3d ed. 1998)(“Although the Court issued a five-to-four decision, the majority and dissent
both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how
the standard was applied to the facts of the case.”).
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F. Supp. 3d 1030 (D.N.M. 2016)(Browning, J.), the Court granted summary judgment for the
defendant when the plaintiff did not offer expert evidence supporting causation or proximate
causation in its breach-of-contract or breach-of-the-implied-warranty-of-merchantability claims.
See 184 F. Supp. 3d at 1075-78. The Court reasoned that the plaintiff could prove neither the
breach-of-contract claim’s causation requirement nor the breach-of-the-implied-warranty-ofmerchantability claim’s proximate-causation requirement with mere common knowledge, and so
New Mexico law required that the plaintiff bolster its arguments with expert testimony, which the
plaintiff had not provided. See 184 F. Supp. 3d at 1067, 1073, 1075, 1079. The Court determined
that, without the requisite evidence, the plaintiff failed to prove “an essential element of the
nonmoving party’s case,” rendering “all other facts immaterial.” 184 F. Supp. 3d at 1075 (internal
quotation marks omitted)(quoting Plustwik v. Voss of Nor. ASA, 2013 WL 1945082, at *1). Thus,
if a plaintiff has the burden of proof, and the plaintiff has no competent evidence, the defendant
may move, without any competent evidence itself, past the plaintiff’s lack of competent evidence,
and secure summary judgment. See, e.g., Celotex, 477 U.S. at 323-25 (providing that summary
judgment is proper where a plaintiff lacks evidence on an essential element of its case); Am. Mech.
Sols., LLC v. Northland Piping, Inc., 184 F. Supp. 3d at 1075 (granting summary judgment
because plaintiff lacked evidence on causation); Morales v. E.D. Entyre & Co., 382 F. Supp. 2d
1252, 1272 (D.N.M. 2005)(Browning, J.)(granting summary judgment because plaintiff lacked
competent evidence that defendants defectively manufactured an oil distributor). A conclusory
assertion that the plaintiff lacks evidence is insufficient, however, to secure summary judgment;
the defendant must make some evidentiary showing that the plaintiff lacks competent evidence.
See Halley v. Huckaby, 902 F.3d 1136, 1143 (10th Cir. 2018)(stating that summary judgment may
be warranted if the movant notes a lack of evidence for an essential element of the claim). See
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also 11 James Wm. Moore et al., Moore’s Federal Practice § 56.40[1][b][iv], at 56-109 to -111 (3d
ed. 2018).
The party opposing a motion for summary judgment must “set forth specific facts showing
that there is a genuine issue for trial as to those dispositive matters for which it carries the burden
of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving
party may not rest on its pleadings but must set forth specific facts showing that there is a genuine
issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal
quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials . . . .” Fed. R. Civ. P. 56(c)(1)(A). It is not enough for the party
opposing a properly supported motion for summary judgment to “rest on mere allegations or
denials of his pleadings.” Liberty Lobby, 477 U.S. at 259. See Abercrombie v. City of Catoosa,
896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.
1980)(“[O]nce a properly supported summary judgment motion is made, the opposing party may
not rest on the allegations contained in his complaint, but must respond with specific facts showing
the existence of a genuine factual issue to be tried.” (citation and internal quotation marks
omitted)).
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations
unsupported by specific facts, or speculation.” Colony Nat’l Ins. v. Omer, No. 07-2123-JAR, 2008
WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed. R. Civ. P. 56(e); Argo v. Blue
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Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)(McConnell, J.)). “In
responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on
speculation, or on suspicion and may not escape summary judgment in the mere hope that
something will turn up at trial.’” Colony Nat’l Ins. v. Omer, 2008 WL 2309005, at *1 (quoting
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment.
Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there
must be sufficient evidence on which the fact finder could reasonably find for the nonmoving
party. See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v.
Munson, 81 U.S. (14 Wall.) 442, 448 (1871)(“Schuylkill”)); Vitkus v. Beatrice Co., 11 F.3d at
1539. “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249
(citations omitted). Where a rational trier of fact, considering the record as a whole, cannot find
for the nonmoving party, “there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)(quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 289 (1968)).
When reviewing a motion for summary judgment, the court should keep in mind certain
principles. First, the court’s role is not to weigh the evidence but to assess the threshold issue
whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S.
at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary
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judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind
the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S.
at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party’s
favor and construe all evidence in the light most favorable to the nonmoving party. See Hunt v.
Cromartie, 526 U.S. 541, 550-55 (1999); Liberty Lobby, 477 U.S. at 255 (“The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” (citation
omitted)). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S.
at 255.
There are, however, limited circumstances in which the court may disregard a party’s
version of the facts. This doctrine developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court of the United States concluded that
summary judgment is appropriate where video evidence quite clearly contradicted the plaintiff’s
version of the facts. See 550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving
party has carried its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts . . . .
Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted).
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent
was driving in such fashion as to endanger human life. Respondent’s version of
events is so utterly discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on such visible fiction;
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it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 (alterations in Scott v. Harris)(emphasis in Liberty Lobby).
The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304
(10th Cir. 2009), and explained:
[B]ecause at summary judgment we are beyond the pleading phase of the litigation,
a plaintiff’s version of the facts must find support in the record: more specifically,
“[a]s with any motion for summary judgment, ‘[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the
facts[.]’” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting
Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511
F.3d 1255, 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cty., 584 F.3d at 1312 (second alteration in Thomson v. Salt Lake Cty.,
third and fourth alterations in York v. City of Las Cruces). “The Tenth Circuit, in Rhoads v. Miller,
[352 F. App’x 289 (10th Cir. 2009)] explained that the blatant contradictions of the record must
be supported by more than other witnesses’ testimony.” Lymon v. Aramark Corp., 728 F. Supp.
2d 1222, 1249 (D.N.M. 2010)(Browning, J.), aff’d, 499 F. App’x 771 (10th Cir. 2012).
To allege a claim for relief, rule 8 of the Federal Rules of Civil Procedure requires a
pleading to contain
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the
court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which may include relief in the alternative or
different types of relief.
Fed. R. Civ. P. 8. Parties may allege new claims in motions for summary judgment. Evans v.
McDonald’s Corp., 936 F.2d at 1090-91. When this occurs, courts treat the motion for summary
judgment as a request to amend the complaint pursuant to rule 15 of the Federal Rules of Civil
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Procedure. See Viernow v. Euripides Dev. Corp., 157 F.3d 790 n.9 (10th Cir. 1998). The Tenth
Circuit has stated that “[a]s a general rule, a plaintiff should not be prevented from pursuing a valid
claim just because she did not set forth in the complaint a theory on which she could recover,
provided always that a late shift in the thrust of the case will not prejudice the other party in
maintaining his defense upon the merits.” Evans v. McDonald’s Corp., 936 F.2d at 1090-91
(quotation marks omitted). While the purpose of “fact pleading” is to give defendants fair notice
of claims against them “without requiring the plaintiff to have every legal theory or fact developed
in detail before the complaint is filed and the parties have opportunity for discovery,” plaintiffs
may not “wait until the last minute to ascertain and refine the theories on which they intend to
build their case.” Evans v. McDonald’s Corp., 936 F.2d at 1091.
LAW REGARDING HEARSAY
“Hearsay testimony is generally inadmissible.” United States v. Christy, No. CR 10-1534
JB, 2011 WL 5223024, at *5 (D.N.M. Sept. 21, 2011)(Browning, J.)(citing Fed. R. Evid. 802).
Rule 801(c) of the Federal Rules of Evidence defines hearsay: “a statement that: (1) the declarant
does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Courts deem hearsay
generally unreliable and untrustworthy.
See Chambers v. Mississippi, 410 U.S. 284, 298
(1973)(noting that hearsay is generally untrustworthy and lacks traditional indicia of reliability);
United States v. Lozado, 776 F.3d 1119, 1121 (10th Cir. 2015)(“Hearsay is generally inadmissible
as evidence because it is considered unreliable.” (citing Williamson v. United States, 512 U.S.
594, 598 (1994))); United States v. Console, 13 F.3d 641, 656 (3d. Cir. 1993)(stating hearsay is
“‘inherently untrustworthy’” because of the lack of an oath, presence in court, and cross
examination quoting United States v. Pelullo, 964 F.2d 193, 203 (3rd Cir. 1992))). Testimonial
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proof is necessarily based upon the human senses, which can be unreliable. See 5 Jack Weinstein
& Margaret Berger, Weinstein’s Federal Evidence § 802.02[1][b], at 802-5 (Joseph McLaughlin
ed., 2d ed. 2017)(“Weinstein’s Federal Evidence”). The Anglo-American tradition uses three
devices to illuminate inaccuracies in the testimonial proof: (i) the oath; (ii) personal presence at
trial; (iii) and cross examination. See Weinstein’s Federal Evidence § 802.02[2][a], at 802-5.
Courts view hearsay evidence as unreliable because it is not subject to an oath, personal presence
in court, or cross examination, see, e.g., United States v. Console, 13 F.3d at 656; it is difficult to
evaluate the credibility of out-of-court statements when the three safeguards mentioned above are
unavailable, see Weinstein’s Federal Evidence § 802.02[3], at 802-6 to -7.
“Hearsay within hearsay” is admissible only “if each part of the combined statements
conforms with an exception to the rule.” Fed. R. Evid. 805. See, e.g., United States v. DeLeon,
316 F. Supp. 3d 1303, 1306 (D.N.M. 2018)(Browning, J.)(noting, after concluding that rule 803(8)
provides an exception for law enforcement reports, that a hearsay issue remains regarding the
statements within the reports); Wood v. Millar, No. CIV 13-0923 RB/CG, 2015 WL 12661926, at
*4 (D.N.M. Feb. 19, 2015)(Brack, J.)(stating that witness statements in police reports, to which
rule 803(8) applies, may be admissible under hearsay exclusions other than rule 803(8)); Montoya
v. Sheldon, No. CIV 10-0360 JB/WDS, 2012 WL 6632524, at *7 (D.N.M. Oct. 31,
2012)(Browning, J.)(excluding medical records, which themselves were inadmissible hearsay,
although the statements within the medical records were opposing party statements). A statement
that is otherwise hearsay, however, may be admissible for a purpose, such as impeachment, other
than to prove the truth of the matter asserted. See United States v. Caraway, 534 F.3d 1290, 1299
(10th Cir. 2008)(“We have already explained why the content of the statement, if used
substantively, would be inadmissible hearsay. If admitted for impeachment purposes, however, it
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is not hearsay.”). Likewise, “‘[i]f the significance of an offered statement lies solely in the fact
that it was made, no issue is raised as to the truth of anything asserted, and the statement is not
hearsay.’” Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1087 (10th
Cir. 2001)(quoting Fed. R. Evid. 801 advisory committee’s note). Statements in the latter category
include verbal acts -“statement[s] offered to prove the words themselves because of their legal effect
(e.g., the terms of a will).” Black’s Law Dictionary (10th ed. 2014). “A contract,
for example, is a form of verbal act to which the law attaches duties and liabilities
and therefore is not hearsay.” Mueller v. Abdnor, 972 F.2d 931, 937 (8th Cir. 1992).
See also Cagle v. The James St. Grp., 400 F. App’x 348, 356 (10th Cir. 2010).
Farley v. Stacy, No. 14-CV-0008-JHP-PJC, 2015 WL 3866836, at *5 (N.D. Okla. June 23,
2015)(Payne, J.), aff’d, 645 F. App’x 684 (10th Cir. 2016)(unpublished).
1.
Rule 801(d)(2).
An opposing party’s statement is not hearsay. See Fed. R. Evid. 801(d)(2). Rule 801(d)(2)
specifically excludes from hearsay a statement that is offered against an opposing party and:
(A)
was made by the party in an individual or representative capacity;
(B)
is one the party manifested that it adopted or believed to be true;
(C)
was made by a person whom the party authorized to make a
statement on the subject;
(D)
was made by the party’s agent or employee on a matter within the
scope of that relationship and while it existed; or
(E)
was made by the party’s coconspirator during and in furtherance of
the conspiracy.
The statement must be considered but does not by itself establish the declarant’s
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).
Fed. R. Evid. 801(d)(2). “The admissibility of opposing-party statements ‘is not based on
reliability; rather, they are admitted as part of the adversary system’; they are admitted, in short,
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because the party said the words and should be stuck with them, regardless of their accuracy.”
United States v. Ballou, 59 F. Supp. 3d 1038, 1074 (D.N.M. 2014)(Browning, J.)(quoting Stephen
A. Saltzburg et. al, Federal Rules of Evidence Manual § 801.02[b], at 801-13 (2011)). “[T]he
Tenth Circuit has stated that proponents of such evidence ‘need only show by a preponderance of
the evidence that the opposing party had made the statement.’” United States v. Shirley, No. CR
15-1285 JB, 2016 WL 9021832, at *7 (D.N.M. Dec. 21, 2016)(Browning, J.)(citing United States
v. Brinson, 772 F.3d 1314, 1320 (10th Cir. 2014)).
“Rule 801(d)(2)(A) does not . . . permit such a statement to be used against anyone other
than the party who made the statement, such as codefendants.” United States v. DeLeon, 287
F. Supp. 3d 1187, 1256 (D.N.M. 2018)(Browning, J.)(citing United States v. Wolf, 839 F.2d 1387,
1393 & n.4 (10th Cir. 1988); Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual
§ 801.02(6)(c) (11th ed. 2017)). Statements made during closing argument by an attorney qualify
as an admission by a party opponent under rule 801(d)(2)(A). See United States v. Ganadonegro,
854 F. Supp. 2d 1088, 1121 & 1121 n.11 (D.N.M. 2012)(Browning, J.)(citing United States v.
McElhiney, 85 F. App’x 112, 115 (10th Cir. 2003)(unpublished)). The Court has determined that
rule 806 of the Federal Rules of Evidence, which permits attacking hearsay statements with “any
evidence that would be admissible for those purposes if the declarant had testified as a witness,”
Fed. R. Evid. 806, “does not apply to rule 801(d)(2)(A) statements,” United States v. DeLeon, No.
CR 15-4268 JB, 2018 WL 878121, at *2 n.1 (D.N.M. Feb. 12, 2018)(Browning, J.). “Party
opponents can, however, impeach their own admissions, i.e., rule 801(d)(2)(A) statements, even
though rule 806 does not apply. If a party opponent admission is relevant, then anything that
impeaches such a statement is also relevant.” United States v. DeLeon, 2018 WL 878121, at *2
n.1.
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LAW REGARDING PROCEDURAL DUE PROCESS CLAIMS
The Fourteenth Amendment states: “No State shall . . . deprive any person of life, liberty,
or property, without due process of law.” U.S. Const. amend. XIV. The Due Process Clause
encompasses two distinct forms of protection: (i) procedural due process, which requires a state to
employ fair procedures when depriving a person of a protected interest; and (ii) substantive due
process, which guarantees that a state cannot deprive a person of a protected interest for certain
reasons. See Reid v. Pautler, 36 F. Supp. 3d 1067, 1136 (D.N.M. 2014)(Browning, J.)(citing Cty.
of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)). “Under either form of protection, however,
a person must have a protected interest in either life, liberty, or property.” Chavez-Rodriguez v.
City of Santa Fe, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008)(Browning, J.). The Tenth Circuit
prescribes a two-step inquiry in determining whether an individual’s procedural due process rights
were violated: (i) “[d]id the individual possess a protected property [or liberty] interest to which
due process protection was applicable?”; and (ii) ”[w]as the individual afforded an appropriate
level of process?”
Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.
2006)(quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir. 1999)).
“[T]o determine whether due process requirements apply in the first place, we must look
not to the ‘weight’ but to the nature of the interest at stake.” Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 570-71 (1972). “‘Liberty’ and ‘property’ are broad and majestic terms. They are
among the ‘(g)reat (constitutional) concepts . . . purposely left to gather meaning from
experience.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 571 (quoting National Mutual Ins.
Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949)(Frankfurter, J., dissenting)). The
Supreme Court has “made clear that the property interests protected by the procedural due process
clause extend well beyond actual ownership of real estate, chattels, or money. By the same token,
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the Court has required due process protection for deprivations of liberty beyond the sort of formal
constraints imposed by the criminal process.” Bd. of Regents of State Colls. v. Roth, 408 U.S.
at 571-72. “Yet, while the Court has eschewed rigid or formalistic limitations on the protection of
procedural due process, it has at the same time observed certain boundaries” for “the words
‘liberty’ and ‘property’ in the Due Process Clause of the Fourteenth Amendment must be given
some meaning.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572.
Concerning the Fourteenth Amendment’s meaning of “liberty” guaranteed, the Supreme
Court has stated the following:
Without a doubt, it denotes not merely freedom from bodily restraint but also the
right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, to establish a home and bring up
children, to worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized . . . as essential to the orderly
pursuit of happiness of free men. In a Constitution for a free people, there can be
no doubt that the meaning of ‘liberty’ must be broad indeed.
Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572.
“The Fourteenth Amendment’s procedural protection of property is a safeguard of the
security of interests that a person has already acquired in specific benefits.” Bd. of Regents of
State Colls. v. Roth, 408 U.S. at 576. These property interests, as the Court has already explained,
clearly can include “real estate, chattels, or money,” but they “may take many forms.” Bd. of
Regents of State Colls. v. Roth, 408 U.S. at 571-76.
Thus, the Court has held that a person receiving welfare benefits under statutory
and administrative standards defining eligibility for them has an interest in
continued receipt of those benefits that is safeguarded by procedural due process.
Goldberg v. Kelly, 397 U.S. 254 . . . [(1970)]. See Flemming v. Nestor, 363 U.S.
603, 611 . . . [(1960)]. Similarly, in the area of employment, the Court has held that
a public college professor dismissed from an office held under tenure provisions,
Slochower v. Bd. of Education, 350 U.S. 551 . . . [(1956)], and college professors
and staff members dismissed during the terms of their contracts, Wieman v.
Updegraff, 344 U.S. 183 . . . [(1952)], have interests in continued employment that
are safeguarded by due process.
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Bd. of Regents of State Colls. v. Roth, 408 U.S. at 576-77.
Based upon these decisions, “[t]o have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents
of State Colls. v. Roth, 408 U.S. at 577. “Such an interest arises not from the Due Process Clause
of the Constitution itself, but is created by independent sources such as a state or federal statute, a
municipal charter or ordinance, or an implied or express contract.” Teigen v. Renfrow, 511 F.3d
1072, 1079 (10th Cir. 2007). See Paul v. Davis, 424 U.S. 693, 710 (1976)(“[Liberty and property]
interests attain . . . constitutional status by virtue of the fact that they have been initially recognized
and protected by state law.”). “Property interests, of course, are not created by the Constitution.
Rather they are created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law-rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colls.
v. Roth, 408 U.S. at 577. See Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.
1994)(“Rather, property interests, which are the subject of the present litigation, ‘are created and
their dimensions are defined by existing rules or understandings that stem from an independent
source such as state law.’”)(quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577)).
“[O]nce it is determined that the Due Process Clause applies, the question remains what
process is due.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)(citing Morrissey
v. Brewer, 408 U.S. 471, 481 (1972)). “An essential principle of due process is that a deprivation
of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the
nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542. “[D]ue process is
flexible and calls for such procedural protections as the particular situation demands.” Mathews
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v. Eldridge, 424 U.S. at 334. The Supreme Court has explained that
the root requirement of the Due Process Clause [is] that an individual be given an
opportunity for a hearing before he is deprived of any significant property interest.
This principle requires some kind of a hearing prior to the discharge of an employee
who has a constitutionally protected property interest in his employment.
....
[T]he pretermination hearing, though necessary, need not be elaborate. We have
pointed out that [t]he formality and procedural requisites for the hearing can vary,
depending upon the importance of the interests involved and the nature of the
subsequent proceedings. In general, something less than a full evidentiary hearing
is sufficient prior to adverse administrative action.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545 (footnote omitted).
The United States Court of Appeals for the Second Circuit has stated:
The Supreme Court . . . explained that procedural due process is a flexible standard
that can vary in different circumstances depending on “‘the private interest that will
be affected by the official action’” as compared to “the Government’s asserted
interest, ‘including the function involved’ and the burdens the Government would
face in providing greater process.” Hamdi v. Rumsfeld, 542 U.S. 507,
[529] . . . (2004)(quoting Mathews v. Eldridge, 424 U.S. at 335). A court must
carefully balance these competing concerns, analyzing “‘the risk of an erroneous
deprivation’ of the private interest if the process were reduced and the ‘probable
value, if any, of additional or substitute safeguards.’” Id. (quoting Mathews v.
Eldridge, 424 U.S. at 335. . . .).
United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004). The hearing required depends on:
(i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the
procedures already guaranteed, and whether additional procedural safeguards would prove
valuable; and (iii) the government’s interest and the burdens that additional procedures might
impose. See Mathews v. Eldridge, 424 U.S. at 335. For example, “[w]here . . . the state must act
quickly, a meaningful post-deprivation hearing is adequate.” Clark v. City of Draper, 168 F.3d
at 1189. See Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir. 1989)(concluding that
removal of a child from parents’ custody requires pre-deprivation hearing “except for
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extraordinary situations where some valid governmental interest is at stake that justifies
postponing the hearing until after the event”).
The Court has previously considered procedural due process violations several times. See
A.M. through Youngers v. N.M. Dep’t of Health, No. CIV 13-0692 JB/WPL, 2015 WL 13668431,
at *37-43 (D.N.M. Dec. 7, 2015)(Browning, J.)(“Youngers”). For example, in Youngers, the
Court concluded that the New Mexico Department of Health violated due process when it afforded
a woman with developmental disabilities no process before depriving her of medical care,
conditions of reasonable care, safety, and nonrestrictive confinement, because it afforded her no
process for deprivation. See Youngers, 2015 WL 13668431, at *37-43. The Court has also
concluded that a tenured city employee was not denied due process when the city fired him,
because the city afforded him a hearing. See Salazar v. City of Albuquerque, 776 F. Supp. 2d
1217, 1239 (D.N.M. 2011)(Browning, J.)(“A citizen is entitled to process and is not necessarily
guaranteed a win.”). See also Duprey v. Twelfth Judicial Dist. Court, 760 F. Supp. 2d at 1215
(denying due process claims where a state employee “got her opportunity to be heard at a complex
grievance hearing, with an attorney and with an opportunity to question witnesses, and make
opening and closing arguments to a panel of decision-makers.”); Camuglia v. City of Albuquerque,
375 F. Supp. 2d 1299, 1308-09 (D.N.M. 2005)(Browning, J.), aff’d, Camuglia v. City of
Albuquerque, 448 F.3d at 1220-21 (“[I]t cannot be denied that the City, acting through its
inspectors, may close a restaurant to protect the health of patrons and workers without first
providing a hearing to the restaurant owner.”).
ANALYSIS
“The Fourteenth Amendment [of the United States Constitution] provides that a state shall
‘not deprive any person of life, liberty, or property, without due process of law.’” Lauck v.
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Campbell Cty., 627 F.3d 805, 811 (10th Cir. 2010)(quoting the Fourteenth Amendment). “Once
it is determined that due process applies, the question remains what process is due.” Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). Students, like Lee, facing “interference with a protected
property interest” in their education “must be given some kind of notice and afforded some kind
of hearing.” Goss v. Lopez, 419 U.S. 565, 579 (1975)(“Goss”).
The Court applies Mathews v. Eldridge to determine what process the Defendants owed
Lee when he was expelled from UNM. See Watson, 242 F.3d at 1240. The Court evaluates: (i)
the private interest at stake; (ii) the effect on the private interest in the event of an erroneous
determination as well as the value of any additional procedural safeguards; and (iii) the
government’s interest, including the potential administrative burden of additional procedural
safeguards. See Watson, 242 F.3d at 1240 (applying Mathews v. Eldridge, 424 U.S. at 334-35).
“The three-factor test from the Mathews decision, decided one year after Goss, is appropriate for
determining when additional procedure is due because the test crystallizes the balancing of student
interests against school interests suggested in the Goss decision.” Watson, 242 F.3d at 1240.
As to the first Mathews v. Eldridge factor, Lee has a significant property interest in his
education at UNM and in his reputation. See Goss, 419 U.S. at 576 (explaining that students have
a property interest in educational benefits). As the Court acknowledges in the MOO, “[t]he stakes
of Lee’s interest are high.” MOO, 449 F. Supp. at 1124. The permanent notation on Lee’s
transcript indicating that he was expelled from UNM for disciplinary reason likely will make it
difficult for Lee to apply for admission at another university. See DOS Sanctions Letter at 23. Lee
is currently eligible to re-apply to UNM, however, although he is not guaranteed re-admission.
See DOS Sanctions Letter at 23.110
110
Lee has been eligible to re-apply for admission to UNM as a doctoral student since 2018.
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With respect to the second Mathews v. Eldridge factor, the Court conducts below an
individualized analysis of the risk of erroneous deprivation created by each of Lee’s alleged
procedural deficiencies. See infra Analysis §§ III-VII. The Court concludes that none of Lee’s
alleged procedural deficiencies created a risk of erroneous deprivation of his interest in his
education or reputation. See Mathews v. Eldridge, 424 U.S. at 334-35.
Applying the third Mathews v. Eldridge factor, the Court recognizes that UNM also “has
a strong interest in the ‘educational process,’ including maintaining a safe learning environment
for all of its students, while preserving its limited administrative resources.” Plummer, 860 F.3d
at 773 (citing Goss, 419 U.S. at 583). See Gorman v. Univ. of R.I., 837 F.2d 7, 14-15 (1st Cir.
1988)(“Although the protection of such a vital interest would require all possible safeguards, it
must be balanced against the need to promote and protect the primary function of institutions that
exist to provide education.”). Notably, in this case, UNM has a significant interest in encouraging
students who experience sexual assault or sexual violence to come forward. See Newsome v.
Batavia Local Sch. Dist., 842 F.2d 920, 925-26 (6th Cir. 1988)(concluding that exposing student
witnesses to cross-examination would deter students from coming forward about student
misconduct). To that end, UNM has an interest in creating procedures that prevent additional
trauma to potential victims of sexual assault or sexual violence. See Butler v. Rio Rancho Pub.
Sch. Bd., 341 F.3d 1197, 1201 (10th Cir. 2003)(“There is no doubt the School has a legitimate
interest in providing a safe environment for students and staff.”); West v. Derby Unified Sch. Dist.,
206 F.3d 1358, 1364 (10th Cir. 2000)(“[M]aintaining security and order in the schools requires a
certain degree of flexibility in school disciplinary procedures.”). Further, increasing “procedural
See DOS Sanctions Letter at 23. The Court’s record does not indicate whether Lee has re-applied
to UNM.
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safeguards” in university disciplinary proceedings “will impose significant costs on universities.”
Marie T. Reilly, Due Process in Public University Discipline Cases, 120 Penn. St. L. Rev. 1001,
1025 (citing Osteen v. Henley, 13 F.3d 221 (7th Cir. 1993)(Posner, J.)). Requiring UNM to impose
heightened procedural safeguards in student disciplinary proceedings, therefore, could hamper
UNM’s efforts to protect its students’ well-being and drain its limited administrative resources.
See Plummer, 860 F.3d at 773.
The Court concludes that, under the three Mathews v. Eldridge factors, none of Lee’s
alleged procedural deficiencies substantially prejudice him, and the Defendants have satisfied their
obligations under the Due Process Clause to afford Lee notice and an opportunity to be heard. See
Mathews v. Eldridge, 424 U.S. at 334-35.
I.
LEE ADMITTED TO THE UNMPD THAT HE HAD NONCONSENSUAL
SEXUAL CONTACT WITH ROE WHILE SHE WAS INCAPACITATED, AND
THE OEO THEREFORE DID NOT NEED TO MAKE A CREDIBILITY
DETERMINATION ABOUT ROE TO FIND THAT LEE VIOLATED UNM’S
SEXUAL MISCONDUCT POLICES.
Lee’s statements to the UNMPD indicate that he “knew or should have known” that Roe
was too intoxicated to “give[] meaningful consent to sexual activity.” PLOD at 30 (citing UNM
Policy # 2740). See Fisher Supp. Rpt. at 1-2; UNMPD Supplemental Felony Report at 41-42.
Consequently, Lee’s statements alone are sufficient to allow Buchs to determine that Lee violated
UNM policy. See PLOD at 30; FLOD at 1-2. The OEO found that Lee’s “statements to
UNMPD . . . demonstrate Complainant was intoxicated to the point of incapacitation, and a
reasonable person, in the same or similar circumstances, would understand that Complainant was
intoxicated to the point of incapacitation.” PLOD at 31. Further, the OEO concluded that “Lee
knew or reasonably should have known, Complainant did not consent to him trying to put his penis
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in her mouth while she laid on [Goodnight’s] bed because he confirmed to UNMPD she would not
open her mouth for him to do so.” PLOD at 32.
A.
LEE ADMITTED TO THE UNMPD THAT ROE WAS INCAPACITATED
AND THAT HE HAD NONCONSENSUAL SEXUAL CONTACT WITH
ROE.
Lee argues that he “never admitted he had non-consensual contact with Ms. Roe or that
Ms. Roe was too intoxicated to consent to sexual contact.” Response at 25. Lee avers that although
he “may have made statements regarding Ms. Roe’s level of intoxication . . . he never indicated
that she did not consent to sexual contact or that he she was too intoxicated to consent to sexual
contact.” Lee compares his case to Doe v. University of Mississippi, 361 F. Supp. 3d 597, 603
(S.D. Miss. 2019)(Jordan, C.J.). See Response at 24-25. Doe v. University of Mississippi,
however, is distinguishable. See 361 F. Supp. 3d at 603. In Doe v. University of Mississippi, the
defendant university found that the plaintiff had nonconsensual sex with the complainant in the
case, and suspended him from the university for three years. See 361 F. Supp. 3d at 603. There,
the university’s sexual misconduct policy stated that “an incapacitated person is not able to give
consent.”
361 F. Supp. 3d at 611.
Although both the plaintiff and the complainant were
intoxicated on the night of the alleged sexual assault, and the plaintiff admitted that the
complainant was intoxicated when they had sex, the Honorable Daniel P. Jordan, III, Chief United
States District Judge for the Southern District of Mississippi, concludes that the plaintiff’s
“admission does not necessarily indicate” that the complainant “was incapacitated under the
policy.” 361 F. Supp. 3d at 612. Judge Jordan continues that the plaintiff’s admission “falls short
of the proof in Plummer,” because it was “plausible in this he said/she said case, that giving” the
plaintiff an opportunity to cross-examine the complainant “could have added some value to the
hearing under the second Mathews factor.” 361 F. Supp. 3d at 612-13. Judge Jordan, therefore,
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denied the defendant’s motion to dismiss the plaintiff’s procedural due process claims. See 361
F. Supp. 3d at 598.
Here, by contrast, Lee’s admissions to the UNMPD go far beyond
acknowledging that Roe was intoxicated. See Fisher Supp. Rpt. at 1-2; Lobo Village Tr. at 17:1120 (Lee)(transcript of Lee’s interview with Fisher); UNMPD Felony Supplemental Report at 4142; UNMPD Station Tr. at 32:4-11 (Lee)(transcript of Lee’s interview at the police station).111
Based on Lee’s admissions to the UNMPD alone, the OEO reasonably could have found
that Lee “knew or should have known” that Roe was “incapacitated” and, therefore, incapable of
providing meaningful consent.112 UNM Policy # 2740. Lee informed the UNMPD that Roe
“started freaking out after . . . three or four shots . . . [of] Jack Daniels, whiskey.” Lobo Village
Tr. at 17:11-20 (Lee). Although Lee told the UNMPD that he witnessed only Roe “pour[ing]
herself” shots “at least three times on her own,” he acknowledged that she may have drunk more.
UNMPD Station Tr. at 15:1-3 (Lee, Duren). Lee also advised the UNMPD that, before the sexual
encounter, Roe “was stumbling113 . . . she was buzzed and drunk yeah . . . she was intoxicated,”
Lobo Village Tr. at 17:11-20 (Lee), and he and Goodnight had to “guide her” to the sofa, Lobo
Village Tr. at 20:12-20 (Lee).114 Lee stated that at the sofa, where “we all got naked . . . she was
111
Here, for the reasons stated in n.12, supra, and because Lee avers that he “never indicated
that she did not consent to sexual contact or that she was too intoxicated to consent to sexual
contact,” Response at 25, the Court will rely on transcripts of Lee’s conversations with the
UNMPD.
112
“‘Should have known’ is an objective, reasonable person standard which assumes that a
reasonable person is both sober and exercising sound judgment. Incapacitation occurs when
someone cannot make rational, reasonable decisions because they lack the capacity to give
knowing/informed consent.’” UNM Policy # 2740 (referring to a prior sentence).
113
The OEO considers whether a complainant is “stumbling” when evaluating whether “the
Complainant was incapable of giving meaningful consent to sexual activity due to intoxication.”
UNM Policy # 2740. Accord Response at 25 (quoting this portion of the Policy).
114
The OEO considers whether a complainant is “disoriented or confused as to time or
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intoxicated.” UNMPD Station Tr. at 21:12-20 (Lee). Although Lee told the UNMPD that Roe
“may have” been speaking during the encounter on the sofa, Lee “d[id] not know what she was
saying.” UNMPD Station Tr. at 22:16-18 (Lee).115 Specifically, Lee estimated that on a scale of
“one through ten” Roe was a “six or seven” with ten being “completely” drunk. UNMPD Station
Tr. at 22:2-12 (Lee). Lee advised the UNMPD that, once in the bedroom, he and Goodnight “put
her on the bed, [Goodnight’s] bed.” UNMPD at 25:25-26:1 (Lee).116 During the encounter in the
bedroom, Lee told the UNMPD that he noticed Roe was “extremely buzzed,” and Lee agreed he
would “call her drunk.” UNMPD Station Tr. at 29:2-7 (Lee, Duren). Immediately after the
encounter, Lee told the UNMPD that he asked Roe: “‘Do you want to throw up, you know, to
make you feel better?’”117 Lobo Village Tr. at 21:20-24 (Lee), and “dressed her,” id. at 22:12-13
(Lee). Lee explained to the UNMPD that Roe was laying “on the floor, so we picked her up.”118
place” when evaluating whether “the Complainant was incapable of giving meaningful consent to
sexual activity due to intoxication.” UNM Policy # 2740. Accord Response at 25 (quoting this
portion of the Policy).
115
It is unclear to the Court based on Lee’s statement whether Lee was implying that Roe’s
speech was unintelligible or whether he could not remember whether she had spoken. The OEO
considers whether a complainant had “slurred speech or word confusion” when evaluating whether
“the Complainant was incapable of giving meaningful consent to sexual activity due to
intoxication.” UNM Policy # 2740. Accord Response at 25 (quoting this portion of the Policy).
116
The Court notes that the OEO considers whether a complainant is “exhibiting loss of
equilibrium” when evaluating whether “the Complainant was incapable of giving meaningful
consent to sexual activity due to intoxication.” UNM Policy # 2740. Accord Response at 25
(quoting this portion of the policy).
117
The OEO considers whether a complainant is “vomiting” when evaluating whether “the
Complainant was incapable of giving meaningful consent to sexual activity due to intoxication.”
UNM Policy # 2740. Accord Response at 25 (quoting this portion of the Policy).
118
The OEO considers whether a complainant is “exhibiting loss of equilibrium” when
evaluating whether “the Complainant was incapable of giving meaningful consent to sexual
activity due to intoxication.” UNM Policy # 2740. Accord Response at 25 (quoting this portion
of the Policy)
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UNMPD Station Tr. at 37:8-9 (Lee).
Thereafter, Lee said, Roe “started freaking
out . . . screaming . . . . [S]he was like ‘I need to walk to my car right now.’” Lobo Village Tr. at
14:5-10 (Lee). Lee explained that he and Goodnight “were going to take [Roe] to the hospital if
she wanted to . . . . I was helping [Goodnight] because he needed help . . . to carry her.” Lobo
Village Tr. at 14:16-22 (Lee).
Further, even if Lee did not know that Roe was incapacitated, his statements to the UNMPD
alone are enough to demonstrate that he knew or should have known that Roe did not consent to
sexual contact. See UNM Policy # 2740. Throughout his conversations with UNMPD, Lee stated
multiple times that Roe was “resisting” his attempts to put his penis in her mouth. See, e.g., Lobo
Village Tr. at 29:21-30:3 (Lee); id. at 28:6-8 (Lee). Moreover, Lee stated that, while he,
Goodnight, and Roe were near the sofa, Lee “tried to go for the blow job too, but, like she -- her
mouth wasn’t opening wide enough for me.” Lobo Village Tr. at 23:19-21 (Lee). Lee said that,
once all three arrived in the bedroom, as Goodnight had vaginal sex with Roe, Lee “thought she
was going to give me oral too,” although Roe had refused to open her mouth to “give” Lee “oral”
several minutes earlier. Lobo Village Tr. at 25:18-19 (Lee). Lee also stated that Roe said “‘oh,
no’” when he “tried to” put his penis into Roe’s mouth. Lobo Village Tr. at 29:22-30:5 (Lee).
Although Roe’s mouth was closed and she had told him “no,” Lee “attempted” to put his penis in
her mouth for “maybe a minute, and might be longer,” during which he “may have touched her
lips or cheeks, but no deep throat action.” UNMPD Station Tr. at 32:4-11 (Lee). Lee explained,
however, that he “didn’t get to put it in her,” because, once again, Roe “wasn’t opening her mouth.”
Lobo Village Tr. at 28:2-4 (Lee).
Lee’s statements to the UNMPD, therefore, exceed the Doe v. Mississippi plaintiff’s
statement to police. See 361 F. Supp. 3d at 611. The Court concludes that Lee admitted to the
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UNMPD that he had nonconsensual sexual contact with Roe and that she was incapacitated. See,
e.g., Fisher Supp. Rpt. at 1-2; Lobo Village Tr. 29:21-30:3 (Lee); UNMPD Felony Supplemental
Report at 41-42; UNMPD Station Tr. at 32:4-11 (Lee). This case, therefore, is more similar to
Flaim, 418 F.3d at 641. In Flaim, the defendant medical school expelled the plaintiff medical
student after he was convicted of a felony drug crime. See 418 F.3d at 631. The Honorable Boyce
F. Martin Jr., United States Circuit Judge for the United States Court of Appeals for the Sixth
Circuit, authored an opinion that affirms the dismissal of the plaintiff’s due process claims, because
the defendant’s “procedural approach was consistent with the bare-minimum requirements of due
process, though perhaps less-than-desirable for an institution of higher learning.” 418 F.3d at 632.
The plaintiff argued that he should have been allowed to cross-examine his arresting officer, who
testified at his disciplinary hearing. See 418 F.3d at 641. Judge Martin explains that, as in Winnick
v. Manning, “the ‘critical fact’ in Winnick[v. Manning] was admitted by Winnick, see id., just as
Flaim does not deny his felony conviction.” 418 F.3d at 641 (quoting Winnick v. Manning, 460
F.2d at 550). Similarly, Lee admitted to the UNMPD the “critical fact[s]” which indicate that Roe
was incapacitated and that he had nonconsensual contact with her. Winnick v. Manning, 460 F.2d
at 550. See Flaim, 418 F.3d at 641. Lee argues that, in Flaim, “the plaintiff did not deny his felony
conviction, for which he was expelled.” Response at 26 (citing Flaim, 418 F.3d at 641). True,
Lee now denies many of the initial statements that he made to the UNMPD. See, e.g., PLOD at
8-14. Yet this implicates Lee’s own credibility -- not Roe’s. Compare Lobo Village Tr. at 22:1213 (Lee)(stating that he “dressed her”); id. at 29:22-30:5 (Lee)(informing police that Roe said “oh
no” when he “tried to” put his penis in her mouth), with PLOD at 10 (insisting that Roe “got
dressed by herself”); id. (stating that Roe “never said no once”). See also PLOD at 31 (“OEO also
finds [Lee and Goodnight’s] statements made to OEO are significantly different from the
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statements [Lee and Goodnight] provided to UNMPD.”). The Court, therefore, like Judge Martin,
“assume[s] that any discrepancies” in Roe’s testimony, “to the extent they might have existed,
would not have been sufficient to convince” the OEO that Lee had not violated UNM policy.
Flaim, 418 F.3d at 641. Judge Martin notes that the plaintiff “was able to listen to and observe the
officer’s testimony,” and “then had the opportunity to present his version of events, during which
he had the opportunity to point out inconsistencies or contradictions in the officer’s testimony.”
418 F.3d at 641. Similarly, Lee had the opportunity to read Roe’s statement to Buchs and then to
provide a written statement contradicting much of that testimony. See PLOD at 8-14. For
example, in Lee’s written statement to Buchs, he contends that Roe’s statement “leaves out” “the
most important part,” PLOD at 13, and that her statement is a “strange story,” PLOD at 12. Like
the plaintiff in Flaim, Lee received “adequate opportunity to address any discrepancies in” Roe’s
statement, and therefore “‘cross-examination would have been a fruitless exercise.’” 418 F.3d at
641 (quoting Winnick v. Manning, 460 F.2d at 550). See PLOD at 8-14.
B.
ROE’S CREDIBILITY WAS NOT AT ISSUE IN THE OEO’S FINAL
DETERMINATION THAT LEE VIOLATED UNM POLICY, BECAUSE OF
LEE’S ADMISSIONS TO THE UNMPD.
In the FLOD, the OEO determined that “it is more likely than not that Lee engaged in nonconsensual sexual contact with Complainant in violation of policy.” FLOD at 2. The OEO based
its final decision on the following factors: (i) Lee “admits to kissing Complainant and trying to
engage in oral sex with her”; (ii) Lee “confirmed to UNMPD that Complainant was ‘very
intoxicated,’ prior to going into [Goodnight’s] bedroom”; (iii) Lee’s roommate, Aaron, “observed
Complainant’s speech became ‘slurry’ . . . prior to the parties going to [Goodnight’s] room (and
therefore prior to the sexual contact occurring). [Aaron] also heard Complainant say . . . prior to
the parties going to [Goodnight’s] room, in a slurred voice, she ‘[w]anted to go home’”; (iv) Lee
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“confirmed [Goodnight] held Complainant up ‘so she wouldn’t fall over when they walked to the
bedroom’ from the common room”; (v) Lee “confirmed to UNMPD that when they were all in
[Goodnight’s] bedroom, Lee tried to get a ‘blow job’ from Complainant, was ‘trying to insert his
penis into Complainant’s mouth,’ but he was not successful because Complainant ‘would not open
her mouth’”; (vi) Goodnight “confirmed to UNMPD both [Lee and himself] ‘carried Complainant’
to her car because she was ‘unable to walk on her own.’” FLOD at 1-2 (no citation for quotations).
The FLOD does not mention Roe’s statement. See FLOD at 1-2. The Court, therefore, concludes
that the OEO did not rely on Roe’s statement in making its final determination that Lee had
violated UNM policy.119 See FLOD at 1-2.
II.
THE DEFENDANTS PROVIDED LEE WITH SUFFICIENT OPPORTUNITIES
TO BE HEARD BEFORE HIS EXPULSION FROM UNM.
Lee argues that the OEO did not afford him a hearing and thereby violated his due process
rights. See Response at 18-19. Lee avers that, as the Honorable Amul L. Thapar, United States
Circuit Judge for the United States Court of Appeals for the Sixth Circuit, concludes, UNM “must
hold some sort of hearing before imposing a sanction as serious as expulsion or suspension.”
Baum, 903 F.3d at 575. As the Supreme Court explained in Goss, due process requires UNM to
provide Lee with “at least an informal give-and-take between student and disciplinarian, preferably
prior to the” expulsion, to allow Lee “to characterize his conduct and put it in what he deems the
119
The FLOD indicates that the OEO relied upon Aaron’s statement that Roe’s speech was
slurred, and Goodnight’s statement that Lee and Goodnight carried Roe to her car because she
could not walk. See FLOD at 2. Both statements indicate that Roe was incapacitated. See FLOD
at 2. Lee’s statements to the UNMPD, however, provide ample evidence of Roe’s incapacitation.
See Fisher Supp. Rpt. at 1-2; Lobo Village Tr. at 17:11-20 (Lee); UNMPD Station Tr. at 21:12-20
(Lee); UNMPD Felony Supplemental Report at 41-42. Aaron does not say anything that Lee does
not say; his statements confirm Lee’s statements to the UNMPD about Roe’s incapacitation. See
FLOD at 2. The Court concludes, therefore, that while these statements confirmed Lee’s
admissions regarding Roe’s incapacitation, they were not dispositive; the OEO would have
reached the same conclusion even without this evidence. See FLOD at 2.
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proper context.” 419 U.S. at 584. The Supreme Court notes, however, that “expulsions . . . may
require more formal procedures.” Goss, 419 U.S. at 584. “The timing and content of . . . the nature
of the hearing will depend on appropriate accommodation of the competing interests involved.”
Goss, 419 U.S. at 579-80.
The Court concludes that UNM afforded Lee “some kind of hearing.” Goss, 419 U.S. at
584. First, the DOS held an administrative hearing when it decided whether to expel Lee. See
May 20 Email at 16. At the administrative hearing, Lee had “the opportunity to present witnesses
and evidence,” and have counsel present. May 20 Email at 16. Chibanga also allowed Lee’s
counsel to pass “notes” and have “whispered conversations” with Lee during the hearing, although
she did not permit Lee’s counsel to “make arguments on [Lee’s] behalf.” May 20 Email at 16.
See Osteen v. Henley, 13 F.3d at 225 (A student “is not entitled to be represented” at a disciplinary
hearing “in the sense of having a lawyer who is permitted to examine or cross-examine
witnesses . . . [or] to address the tribunal . . . .”). Because the DOS held a hearing before expelling
Lee, UNM satisfied its baseline obligation to provide Lee with a hearing. See Goss, 419 U.S. at
584; Baum, 903 F.3d at 575. Further, Lee was able to meet with Buchs and to provide a written
statement before she issued the PLOD. See Lee’s Typewritten Statement at 4. Lee also met with
Cowan and Cordova, see Handout Acknowledgement at 3, after which Lee remarked that they
“show[ed] me kindness and professionalism,” and noted that “[i]t did not take long for you to
convince me that you would be neutral and fair to me throughout this whole process” Sept. 25
Cowan Email at 4. Lee also met with Wolberg, another DOS officer, about his initial campus ban.
See Emergency Campus Ban Letter at 1; Update on Campus Ban at 2. All told, the record indicates
that Lee had at least four meetings with persons from UNM’s Title IX Office, the OEO, and the
DOS. See, e.g., Lee Typewritten Statement at 4; Emergency Campus Ban Letter at 1; Update on
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Campus Ban at 2; May 20 Email at 16. Accordingly, the Court concludes that UNM satisfied its
obligations under the Due Process Clause to provide Lee with an opportunity to be heard. See
Goss, 419 U.S. at 579-80.
III.
LEE DOES NOT HAVE A DUE PROCESS RIGHT TO CROSS-EXAMINE
WITNESSES BECAUSE CREDIBILITY IS NOT AT ISSUE.
Students accused of violating university policy do not have an unfettered due process right
to cross-examination in all disciplinary proceedings. See Bd. of Curators of Univ. of Missouri v.
Horowitz, 435 U.S. 78, 86 n.3 (1978)(declining to recognize a right to cross-examination during
student disciplinary proceedings); Watson, 242 F.3d at 1242-43 (10th Cir. 2001)(holding that,
where a state military academy expelled a student, “precedent indicate[s] that due process does not
require all of the rights” that the student requested, including “the right to cross-examine
witnesses”); Gorman v. Univ. of R.I., 837 F.2d at 16 (“[T]he right to unlimited cross-examination
has not been deemed an essential requirement of due process in school disciplinary cases.”); Flor
v. Univ. of N.M., No. CIV 20-0027 JAP/LF, 2020 WL 3410823, at *6 (D.N.M. June 20,
2020)(Parker, J.)(concluding that, where the “OEO’s policy violation finding was divorced from
any statements made by” a student accusing a university a professor of sexual harassment, “due
process would not require cross-examination”); Pacheco v. St. Mary’s Univ., 2017 WL 2670758,
at *17 (W.D. Tex. June 20, 2017)(Lamberth, J.)(“[I]t is clear that the right of cross-examination
and confrontation as it exists in criminal settings is not a requirement of due process in school
disciplinary proceedings.”). Even in student disciplinary proceedings where credibility is at issue,
the Due Process Clause does not require that universities allow accused students personally to
confront complainants. See Haidak, 933 F.3d at 69-70 (“If we were to insist on a right to partyconducted cross-examination . . . the mandated mimicry of a jury-waived trial would be near
complete.”); Doe v. Cummins, 662 F. App’x 437, 448 (6th Cir. 2016)(concluding that the
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defendants had not violated accused students’ due process rights in a case where credibility was at
issue, and the defendants allowed modified “cross-examination where the plaintiffs submitted
written questions to the school investigation panel, were allowed to submit only written questions
to the ARC panel, the panel did not ask all of the questions they submitted, and they were not
allowed to submit follow-up questions”); MOO, 449 F. Supp at 1128-29. A modified version of
cross-examination -- for example, where the “factfinder ask[s] the complaining student questions
in person that the accused student or his counsel has submitted” -- may be necessary to determine
credibility. MOO, 449 F. Supp at 1129. Compare Baum, 903 F.3d at 581-85 (concluding that
universities should allow cross-examination in student disciplinary proceedings where credibility
is at issue), with UC Boulder, 2019 WL 4597875, at *17 (explaining that although “some form of
process that allowed Plaintiff to question Jane Doe’s credibility . . . given the scant evidence and
the ‘he said, she said’ nature of the incident,” defendants were not on notice of a right to crossexamination)(citing MOO, 449 F. Supp. at 1116). By contrast, where credibility is not at issue, a
university need not allow cross-examination, because it would “be[] a fruitless exercise.” Winnick
v. Manning, 450 F.2d at 550. See Plummer, 860 F.3d at 775-76 (holding that accused students
had no right to cross-examination where the defendant university did not rely on testimonial
evidence from the alleged victim); Flaim, 418 F.3d at 641 (holding that cross-examination was
unnecessary where the expelled student plaintiff was able to listen to and to observe the witness’s
testimony and point out inconsistencies, and the plaintiff had admitted the critical fact that caused
his expulsion).
Despite Lee’s substantial interest in his education, denying him the right to cross-examine
Roe creates little risk of erroneous deprivation. See Baum, 903 F.3d at 581. “[C]ross-examination
is unnecessary if a student admits to engaging in misconduct,” because “there is a little to be gained
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by subjecting witnesses to adversarial questioning when the accused student has already
confessed.” Baum, 903 F.3d at 581. See Doe v. N. Michigan Univ., 393 F. Supp. 3d 683, 694
(W.D. Mich. 2019)(Quist, J.)(“Cross-examination is essential to due process only where the finder
of fact must choose between believing an accuser and an accused, but the panel need not make this
choice if the accused student admits the critical fact against him.”)(internal quotations omitted).
Here, after being Mirandized120 and agreeing to speak with police, Lee confirmed that he had
violated UNM’s sexual misconduct policies. See Fisher Supp. Rpt. at 1-2; UNMPD Supplemental
Felony Report. Roe’s credibility, therefore, was not at issue.121 Accordingly, allowing Lee to
120
Miranda v. Arizona, 384 U.S. 436 (1966), “requires that procedural safeguards be
administered to a criminal suspect prior to ‘custodial interrogation.’” United States v. Perdue, 8
F.3d 1455, 1463 (10th Cir. 1993)(quoting Miranda v. Arizona, 384 U.S. at 444). The Supreme
Court of the United States provided the substance of the warning that must be given to a defendant
to meet these procedural safeguard requirements:
Prior to any questioning, the person must be warned that he has a right to remain
silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to consult with an attorney before
speaking there can be no questioning. Likewise, if the individual is alone and
indicates in any manner that he does not wish to be interrogated, the police may not
question him.
Miranda v. Arizona, 384 U.S. at 444-45.
121
If UNM routinely does not afford respondents an opportunity to engage in crossexamination, it runs a risk of error, i.e., not relying exclusively on the respondents’ testimony to
find him guilty. If it prejudges the case, and also assumes that it will rely exclusively on the
respondents’ testimony, it runs the risk of being biased and prejudice. The facts of this case may
be unique, in that UNM could expel Lee solely on his words. UNM may escape liability never
giving the respondent an opportunity for cross-examination, but they run a risk that every case will
not be like Lee’s. If Roe’s credibility had been important, due process would some form of the
right of cross-examination, although submitting questions to a university hearing officer, who then
asks questions of the complainant, will usually satisfy due process. See Haidak, 933 F.2d at 69
(noting that, where an accuser’s credibility is at issue, a university should provide “some
opportunity for real-time cross-examination, even if only through a hearing panel.”). See also
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cross-examine Roe when he had already admitted to having non-consensual sexual contact with
her while she was incapacitated would be a “fruitless exercise.” Winnick v. Manning, 450 F.2d at
550.
IV.
THE OEO PROVIDED LEE WITH SUFFICIENT ACCESS TO THE EVIDENCE
ITS INVESTIGATION UNCOVERED, INCLUDING WITNESSES’ IDENTITIES.
Lee contends that he “was entitled to . . . access to the evidence uncovered in the OEO
investigation, including the names of all witnesses interviewed.” Response at 18. First, due
process does not necessarily entitle Lee to the witnesses’ identities; a university may withhold
witness identities based, for example, on concerns that “[w]ithout the cloak of anonymity, students
who witness criminal activity . . . will be much less likely to notify school authorities, and those
who do will be faced with ostracism at best and perhaps physical reprisals.” Newsome v. Batavia
Local Sch. Dist., 842 F.2d at 924. Moreover, even if due process entitles Lee to all witnesses’
identities, Lee’s unawareness of the identity of a single witness -- who gave a statement that
discussed Goodnight and not Lee -- does not prejudice him unfairly because that statement had
virtually no impact on the OEO’s decision. See PLOD at 27. The OEO also provides Lee with
sufficient summaries of the evidence it considered during the investigation, and allowed him to
supplement the evidentiary record. See PLOD at 17-29. The Defendants, therefore, did not violate
Lee’s due process rights by failing to provide him with access to evidence considered during the
investigation. See PLOD at 17-29.
Walsh v. Hodge, 975 F.3d 475, 485 (5th Cir. 2020)(“‘[W]e have no reason to believe that
questioning . . . by a neutral party is so fundamentally flawed as to create a categorically
unacceptable risk of erroneous deprivation.’”)(quoting Haidak, 933 F.2d at 69).
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A.
LEE KNEW FOUR OF THE FIVE WITNESSES’ IDENTITIES, AND THE
FIFTH WITNESS’ STATEMENT RELATED PRIMARILY TO
GOODNIGHT.
Throughout the investigation, the OEO spoke with five witnesses: Roe; Goodnight; Lee;
Lee and Goodnight’s roommate, Aaron; and a fifth witness (“Witness 1”) that Goodnight
identified. PLOD at 16. Lee never “identified any witnesses or requested OEO interview any
witnesses.” PLOD at 16. The Court addresses each of the OEO’s witnesses in turn. First, Lee is
and was aware of Goodnight and Roe’s identities. See Oct. 16 Letter at 4 (identifying Roe by
name, name redacted in the Court record for privacy); Bd. of Regents Admissions at 6 (“UNM
affirmatively states that, by letter dated October 16, 2015, the UNM OEO disclosed to Plaintiff the
identities of [Roe], [Goodnight], and [Lee].”). Although the Defendants admit that the “OEO did
not disclose to Plaintiff the identities of Witness 1 and Witness 2,” Bd. of Regents Admissions at
6, the PLOD identifies “Witness 2” as an individual who was “in his room, of the apartment he
shared with [Lee and Goodnight], with his bedroom door locked” on the evening of the alleged
sexual assault. PLOD at 27. Lee also informed the UNMPD that “one of my roommates, his name
is Aaron,” was at home during the alleged sexual assault. UNMPD Tr. at 12:9-13 (Duren, Lee).
See id. at 12:15-13:10 (Duren, Lee)(discussing Aaron). The Court, therefore, concludes that Lee
knew Witness 2’s identity. See UNMPD Tr. at 12:9-13:10 (Duren, Lee).
The only remaining unidentified Witness is “Witness 1.” PLOD at 27. The PLOD does
not provide Witness 1’s name, but describes him as a person with a “close, personal relationship”
with Goodnight. PLOD at 27. The PLOD explains that Witness 1 had met Lee and Aaron, but
had not “spent any significant time with” Lee. PLOD at 27. The OEO relied on the following
statement from Witness 1:
Witness 1 reported [Goodnight] told Witness l he and [Roe] were drinking
and [Goodnight] had sexual intercourse with [Roe]. Witness 1 also reported [that
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Goodnight] told Witness 1, he and [Roe] only had sex for “a little bit”‘ because “the
girl was too drunk.” Witness l further reported [Goodnight] told Witness 1 that
after [Goodnight] started having sexual intercourse with [Roe], he decided, “She’s
drunk. She can’t do this.”
PLOD at 27. The PLOD’s analysis section refers only to Witness 1’s statement once, concluding
that “OEO finds Witness 1’s report that [Goodnight] reported identifying at the time he engaged
in sexual activity with [Roe] that [Roe] was ‘too drunk’ to have sex, further shows [Lee and
Goodnight’s] statements to OEO lack credibility.” PLOD at 31. In the FLOD, however, the OEO
does not rely on Witness 1’s statements to determine that Lee violated UNM policy. See FLOD
at 1-2. Viewing the facts in the light most favorable to Lee, the Court concludes that it is plausible
that Lee did not know Witness 1’s identity. See PLOD at 27; Response at 18. Nonetheless, this
lack of awareness does not prejudice Lee, because Witness 1’s statement played a marginal role
in the OEO’s investigation. See Plummer, 860 F.3d at 776.
Due process does not necessarily require universities to disclose witnesses’ identities in
student disciplinary proceedings. See Newsome v. Batavia Local Sch. Dist., 842 F.2d at 924
(disagreeing with the plaintiff’s contention that he had a due process right to know the identities
of and cross-examine his accusers in an expulsion hearing); Nash v. Auburn Univ., 812 F.2d 655,
662-63 (11th Cir. 1987)(“[W]e did not require in Dixon that students facing a hearing on charges
of misconduct be given the names of witnesses against them . . . .”); Keough v. Tate Cty. Bd. of
Educ., 748 F.2d 1077, 1082 (5th Cir. 1984)(holding that a suspended student “suffered no material
prejudice by proceeding to hearing before the school board without a witness list”); Smith ex rel.
Smith v. Seligman Unified Sch. Dist., 664 F. Supp. 2d 1070, 1076 (D. Ariz. 2009)(Teilborg,
J.)(holding that a suspended student did not have the right to know her accusers’ identity, nor
cross-examine witnesses at her expulsion hearing); Gomes v. Univ. of Maine Sys., 304 F. Supp.
2d 117, 128-129 (D. Me. 2004)(Woodcock, J.)(“[D]ue process in the context of academic
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discipline does not necessarily require students be given a list of witnesses . . . .”); Wagner ex rel.
Wagner-Garay v. Fort Wayne Cmty. Schs, 255 F. Supp. 2d 915, 926 (N.D. Ind. 2003)(Cosbey,
M.J.)(“[T]he clear weight of authority holds that a student facing an expulsion hearing does not
have the right to cross-examine witnesses or even learn their identities.”); Coplin v. Conejo Valley
Unified Sch. Dist., 903 F. Supp. 1377, 1381-82 (C.D. Cal. 1995)(Rafeedie, J.)(holding that the
student expelled for sexual harassment did not have a due process right to know identity of his
accusers), aff’d, 116 F.3d 483 (9th Cir. 1997). In Plummer, The Honorable Stephen A. Higginson,
United States Circuit Judge for the United States Court of Appeals for the Fifth Circuit, explained
that, “even if the University could have provided notice further in advance of the hearings of the
identities of relevant witnesses . . . the ultimate disciplinary decisions were conclusively supported
by the videos and photo, about which” the plaintiffs “had full knowledge.” Plummer, 860 F.3d at
776. Likewise, here, even if UNM had told Lee Witness 1’s name, the OEO based its ultimate
decision on Lee’s statements to the UNMPD. See FLOD at 1-2; DOS Sanctions Letter at 22-24.
Witness 1’s statement relates primarily to Goodnight, and not to Lee. See PLOD at 27. Further,
the OEO’s reliance on Witness 1’s statement was minimal -- the PLOD contains approximately
four single-spaced pages of analysis, and its analysis section devotes only one sentence to Witness
1’s statement. See PLOD at 29-32. Witness 1’s statement is relevant to Lee only as it relates to
Roes’ level of intoxication. See PLOD at 27. Yet, as the Court explained in § I, supra, Lee
repeatedly admitted to the UNMPD that Roe was intoxicated to the point of incapacitation. See,
e.g., Lobo Village Tr. at 17:11-20 (Lee); id. at 20:12-20 (Lee); UNMPD Station Tr. at 21:12-20
(Lee); id. at 25:25-61; id. at 29:2-7 (Lee, Duren). Moreover, before discussing Witness 1’s
statement, the PLOD explains that Lee’s and Goodnight’s statements to the UNMPD indicate that
Roe “was intoxicated to the point of incapacitation, and a reasonable person” would understand
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that she was incapacitated. PLOD at 31. Finally, the FLOD never mentions Witness 1’s statement
when it lists the evidence upon which its “determination was based . . . .”
FLOD at 1-2.
Accordingly, the Court concludes that Witness 1’s statement did not cause the OEO to find Lee
violated UNM policy. See PLOD at 27; FLOD at 1-2. UNM’s failure to disclose explicitly
Witness 1’s identity, therefore, did not prejudice Lee. See FLOD at 1-2.
B.
LEE RECEIVED ADEQUATE SUMMARIES OF EVIDENCE THAT THE
OEO AND THE DOS CONSIDERED.
Lee’s argument regarding his lack of access to evidence similarly lacks a sound basis. See
Plummer, 860 F.3d at 776. True, Lee was not privy to all questions that Buchs asked Roe and the
other witnesses. See PLOD at 17-38. He received, however, detailed summaries of Buchs’
interviews with Roe, see PLOD at 17-20, Goodnight, see id. at 20-23, Lee, see id. at 23-26, Aaron,
see id. at 27; and Witness 1, see id. at 27, as well as a summary of the Fisher Supp. Rpt., see id. at
27-38, and texts and Facebook messages between Goodnight and Roe, see id. at 28-29. Lee also
had the opportunity to read Roe’s statement before his meeting with Buchs, and to provide a
written response to her statement indicating where he disagreed. See Oct. 16 Letter at 5-7
(providing Lee with a copy of Roe’s statement and giving him seven working days to respond to
the allegations therein); Lee’s Typewritten Statement at 8-14; Response at 21 (acknowledging that
Lee had the opportunity to “respond in writing to point out inconsistencies” in Roe’s statement).
After the OEO issued the PLOD, Lee was able to respond -- via counsel -- to the evidence
summarized in the PLOD and to provide additional evidence. See Feb. 22 Letter at 34-39.
Notably, in the Feb. 22 Letter, Lee does not raise concerns about the OEO’s failure to provide
evidence or witnesses’ identities. See Feb. 22 Letter at 34-39. Further, both the OEO and DOS
provide a list of evidence which they relied upon at the conclusion of their letters -- finding,
respectively, that Lee had violated UNM policy and that Lee’s actions merit expulsion from UNM.
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See FLOD at 1-2; DOS Sanctions Letter at 23-24. In the Response, Lee does not develop this
withheld-evidence argument, nor indicate which evidence OEO did not provide him.
See
Response at 21-24. Lee notes that he did not receive recordings of Buchs’ witness interviews, but
there is no evidence that Buchs recorded any witness interviews. See Response at 19; Bd. of
Regents Admissions at 6. Because Lee does not explain what evidence the OEO did not provide,
and because it is undisputed that the OEO gave Lee summaries of the relevant evidence before it
issued the FLOD, the OEO did not violate Lee’s due process rights by failing to provide evidence.
See FLOD at 1-2.
V.
THE DEFENDANTS’ DECISION-MAKING PROCESS DOES NOT VIOLATE
LEE’S DUE PROCESS RIGHTS, BECAUSE THE DECISION-MAKING
PROCESS WAS NOT BIASED.
“An impartial tribunal is an essential element of a due process hearing.” Miller v. City of
Mission, 705 F.2d 368, 372 (10th Cir. 1983). The Court, however, “presumes” “honesty and
integrity . . . on the part of” the OEO. Mangels v. Pena, 789 F.2d at 838. The Court holds that
UNM’s inquisitorial model of factfinding is not inherently biased, nor did Buchs demonstrate
actual bias towards Lee. See Withrow v. Larkin, 421 U.S. 35, 47 (1975). Moreover, Lee’s appeals
to UNM’s President and Board of Regents on both the FLOD and the DOS’ sanctioning decision
provided Lee additional procedural safeguards. See Aug. 23 Letter at 34; UNM President Letter
at 13; Meeting Minutes at 14. Consequently, no genuine issue of material fact remains whether a
biased decision-making process violates Lee’s due process rights.
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A.
THE “INQUISITORIAL MODEL” OF INVESTIGATION DOES NOT
VIOLATE STUDENTS’ DUE PROCESS RIGHTS.
Lee argues that the inquisitorial model122 is inherently biased, because it relies on a single
investigator to make a sexual misconduct determination. See Response at 20; Tr. at 74:20-75:6
(Crow). He contends that Buchs’ role as “investigator, judge, and jury” violates his due process
rights. Response at 28. Lee admits, however that no federal court has found the inquisitorial
model is inherently biased. See Tr. at 79:14-15 (Crow). As Justice Harry Blackmun, Associate
Justice of the Supreme Court, noted in Richardson v. Perales, 402 U.S. 389, 410 (1971), “the
advocate-judge-multiple-hat suggestion . . . assumes too much and would bring down too many
procedures designed, and working well . . . .” 402 U.S. at 410.
The Court concludes that Buchs’ dual roles as factfinder and decisionmaker does not mean
the OEO’s process is inherently biased. See Gorman v. Univ. of R.I., 837 F.2d at 15 (explaining
that a factfinder’s “multiple roles” did not “necessarily violate the requirements of fairness). “The
contention that the combination of investigative and adjudicative functions necessarily creates an
unconstitutional risk of bias in administrative adjudication has a . . . difficult burden of persuasion
to carry.” Withrow v. Larkin, 421 U.S. at 47. Although the inquisitorial model is not appropriate
in criminal cases, see Crawford v. Washington, 541 U.S. 36, 61 (2004), it satisfies procedural due
process for important administrative decisions, including student disciplinary proceedings, see,
e.g., Sims v. Apfel, 530 U.S. at 110-11 (holding that the inquisitorial model is appropriate in Social
Security proceedings); Haidak, 933 F.3d at 71 (holding that a university’s use of the inquisitorial
model, which resulted in the student plaintiff’s expulsion, satisfied due process); Hess, 839 F.3d
122
The “inquisitorial system” is a “system of proof-taking used in civil law, whereby the
judge conducts the trial, determines what questions to ask, and defines the scope and the extent of
the inquiry.” Inquisitorial System, Black’s Law Dictionary (11th ed. 2019).
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at 675 (“[T]he combination of investigative and adjudicative function s into a single administrator
doe s not, in itself, demonstrate . . . bias.”). See also Messeri v. Univ. of Colorado, Boulder, No.
18-CV-2658-WJM-SKC, 2019 WL 4597875, at *18 (D. Colo. Sept. 23, 2019)(Martinez,
J.)(concluding that investigators’ roles in Title IX coordination and compliance did not violate due
process).
UNM supplied notice and provided Lee with the opportunity to meet with UNM
officials, including Buchs, on at least four separate occasions.
See, e.g., Lee Typewritten
Statement at 4; Emergency Campus Ban Letter at 1; Update on Campus Ban at 2; May 20 Email
at 16. It may not be the process that Lee wants, but without some evidence that “under a realistic
appraisal of psychological tendencies and human weakness, conferring investigative and
adjudicative powers on” Buchs “poses such a risk of actual bias or prejudgment that the practice
must be forbidden,” the fact that one person conducts the investigation is not so unfair that it is
inherently unconstitutional.
Withrow v. Larkin, 421 U.S. at 47.
See Salazar v. City of
Albuquerque, 776 F. Supp. 2d 1217, 1239 (D.N.M. 2011)(Browning, J.)(“A citizen is entitled to
process” but “is not necessarily guaranteed a win.”). The Court, therefore, concludes that UNM’s
use of an inquisitorial model of factfinding in student disciplinary proceedings is constitutionally
adequate.
B.
LEE HAS NOT DEMONSTRATED THAT BUCHS,
INVESTIGATOR, WAS BIASED AGAINST HIM.
THE
OEO
The Court “presume[s] that administrators are honest and impartial . . . and therefore
‘capable of judging a particular controversy fairly on the basis of its own circumstances.’” Hess,
839 F.3d at 675 (quoting United States v. Morgan, 313 U.S. 409, 421 (1941)). See Mangels v.
Pena, 789 F.2d at 838 (internal citations omitted). “Because honesty and integrity are presumed
on the part of a tribunal, there must be some countervailing reason to conclude that the
decisionmaker is actually biased with respect to the factual issues being adjudicated.” Mangels v.
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Pena, 789 F.2d at 838 (internal citations omitted). Although this presumption is rebuttable, Lee’s
burden is “heavy indeed”; he must “lay a specific foundation of prejudice or prejudgment, such
that the probability of actual bias is too high to be constitutionally tolerable.” Hess, 839 F.3d at
675 (citing Winthrow v. Larkin, 421 U.S. at 47, 55). Lee avows that Buchs “did not trust” Lee or
Goodnight’s version of events, and that she was “hostile and aggressive” towards Lee when she
interviewed him.
Response at 27.
See Lee Depo. at 142:21-25 (stating that Buchs was
“aggressive” and “argumentative” during her meeting with Lee).
Beyond Buchs’ “facial
expression” and “her tone,” however, Lee is “unable to give . . . an example” how Buchs was
argumentative. Lee Depo. at 143:1-11. Lee contends that he “did not have an opportunity to
observe any additional bias f[ro]m” Buchs, “because she conducted her investigation and made
her decision behind closed doors.” Response at 27.
The Court concludes that Lee has not demonstrated successfully that Buchs conclusively
pre-determined his guilt because he fails to provide any evidence of pre-determination. See Lee
Depo. at 142:21-25.
Similarly, Lee’s contention that Buchs had an “aggressive” or
“argumentative” “facial expression,” Lee Depo. at 142:21-143:11, does not meet his “heavy”
burden of rebutting the Court’s presumption that Buchs acted impartially, Hess, 839 F.3d at 675;
Brown v. Univ. of Kansas, 599 F. App’x 833, 838 (10th Cir. 2015)(rejecting a plaintiff’s claim of
bias in a university expulsion proceeding, because “there is no evidence of a link between the
dean’s alleged bias and the decision to expel” the plaintiff). Lee provides no details about Buchs’
tone or facial expression; moreover, facial expression and tone of voice alone are generally
insufficient to demonstrate bias. See Hess, 839 F.3d at 675 (concluding that the plaintiff’s
assertion that a school administrator smiled when informing the plaintiff that he was suspended
did not “overcome the presumption of impartiality,” because “one may smile in sympathy, or to
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ease the tension of a difficult moment, or simply out of awkwardness”). The Court concludes that
Lee’s inference of Buchs’ bias is speculative, and thus cannot overcome the Court’s presumption
of impartiality. See Nash v. Auburn Univ., 812 F.2d at 666 (rejecting a plaintiff’s speculative
contentions regarding an allegedly biased decisionmaker); Duke v. N. Texas State Univ., 469 F.2d
829, 834 (5th Cir. 1972)(“Alleged prejudice of university hearing bodies must be based on more
than mere speculation and tenuous inferences.”); Tr. at 82:11-20 (Court)(explaining that a
factfinder must decide who he or she believes during the decision-making process, and that this
decision does not give rise to a finding of actual bias).
Factfinding is a difficult process. The factfinder often must investigate all facts at the same
time he or she makes a decision. Often a factfinder can just be intuitive, rather than biased or
partial. A factfinder often engages in aggressive questioning, but, again, that does not mean the
factfinder is biased.
See Abdulrahman v. Ashcroft, 330 F.3d 587, 596-97 (3d Cir.
2003)(concluding that a factfinder’s vigorous questioning did not demonstrate bias). To be sure,
facial expression, anger, and aggression, can show bias or partiality. See, e.g., Elias v. Gonzales,
490 F.3d 444, 452 (6th Cir. 2007)(holding that an immigration judge showed bias when the judge
“was inappropriately sarcastic” and “appeared at times to badger petitioner” and his “intemperate”
conduct had “been noted in at least ten opinions or orders issued by the Second Circuit”); Islam v.
Gonzales, 469 F.3d 53, 55 n.1 (2d Cir. 2006)(concluding that an immigration judge was biased
where he “repeatedly” addressed the petitioner “in an argumentative, sarcastic, impolite, and
overly hostile manner that went beyond fact-finding and questioning,” including comparing the
petitioner, who sought asylum, to Terry Nichols, the Oklahoma City bomber). To overcome the
presumption of impartiality or fairness, however, more than just citing these factors are needed --
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the Court must have concrete examples of bias. Here, Lee does not give the necessary details
which would help the Court see whether Buchs was biased.
Further, even if Buchs displayed bias, Lee appealed Buchs’ decision to both UNM’s
President, Frank, and the Board of Regents. See Aug. 23 Letter at 34; UNM President Letter at
13; Meeting Minutes at 14. Both Frank and the Board of Regents upheld Buchs’ finding that Lee
violated UNM policy. See Aug. 23 Letter at 34; UNM President Letter at 13; Meeting Minutes at
14. Further, Frank and the Board of Regents separately affirmed the DOS’ expulsion sanction.
See Schacht v. Wis. Dep’t of Corr., 175 F.3d 497, 503 (7th Cir. 1999)(concluding that no due
process violation existed where the plaintiff could still obtain administrative remedies from
unbiased decision-makers), overruled on other grounds by Higgins v. Mississippi, 217 F.3d 951
(7th Cir. 2000). Lee’s speculative, thin descriptions of Buchs’ demeanor, coupled with additional
procedural safeguards, fail to prove an unacceptably high risk of unfairness exists in UNM’s
decision-making process. See Winthrow, 421 U.S. at 58. Accordingly, Lee’s procedural due
process claims as to Buchs’ bias lack a sound basis in the relevant facts and applicable law.
VI.
UNM’S APPLICATION OF THE “PREPONDERANCE-OF-THE-EVIDENCE
STANDARD” IN STUDENT DISCIPLINARY PROCEEDINGS DOES NOT
VIOLATE LEE’S DUE PROCESS RIGHTS, BECAUSE THE DUE PROCESS
CLAUSE DOES NOT REQUIRE UNIVERSITIES TO APPLY A HIGHER
EVIDENTIARY STANDARD IN STUDENT DISCIPLINARY PROCEEDINGS.
“[D]ue process permits state education institutions such as UNM to adjudicate sexual
misconduct disciplinary proceedings according to a preponderance-of-the-evidence standard.”
MOO, 449 F. Supp. 3d at 1132. The clear-and-convincing evidentiary standard applies only “when
the individual interests at stake in a state proceedings are both ‘particularly important’ and ‘more
substantial than mere loss of money.” Santosky v. Kramer, 555 U.S. 745, 756 (1982)(quoting
Addington v. Texas, 441 U.S. 418, 424 (1979)). This heightened evidentiary burden preserves
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fairness in “government-initiated proceedings that threaten the individual involved with ‘a
significant deprivation of liberty’ or ‘stigma.’” Santosky v. Kramer, 455 U.S. at 756 (quoting
Addington v. Texas, 441 U.S. at 425). Deportation hearings, see Woodby v. INS, 385 U.S. 276
(1966), civil confinement proceedings, see Addington v. Texas, 441 U.S. at 424, parental rights
termination proceedings, see Santosky v. Kramer, 555 U.S. at 756, and the withdrawal of life
support, see Cruzan v. Director, Mo. Dep’t of Health, 479 U.S. 261 (1990), require the clear-andconvincing evidence standard. By contrast, in Cooper v. Oklahoma, the Supreme Court struck
down an Oklahoma statute that required a criminal defendant to prove his incompetence to stand
trial by clear-and-convincing evidence rather than a preponderance-of-the-evidence. See Cooper
v. Oklahoma, 517 U.S. 348, 369 (1996). The Supreme Court reiterated that “the State’s power to
regulate procedural burdens [is] subject to proscription under the Due Process Clause if it ‘offends
some principle of justice so rooted in the traditions and conscience of our people as to be ranked
as fundamental.’” Cooper v. Oklahoma, 517 U.S. at 367 (quoting Patterson v. New York, 432
U.S. 197, 202 (1977)).
The Tenth Circuit has stated that the clear-and-convincing standard “is typically used in
civil cases ‘involving allegations of fraud or some other quasi-criminal wrongdoing.’” Century
Sur. Co. v. Shayona Inv., LLC, 840 F.3d 1175, 1177 (10th Cir. 2016)(quoting Addington v. Texas,
441 U.S. at 424). Thus, for example, the Tenth Circuit requires clear-and-convincing evidence to
support a motion under rule 60(b)(3) of the Federal Rules of Civil Procedure,123 see Anderson v.
123
Rule 60(b)(3) provides in relevant part:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
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Dep’t of Health and Human Servs., 907 F.2d 936, 952 (10th Cir. 1990), and to prove civil contempt
liability, see F.T.C. v. Kuykendall, 371 F.3d 745, 756 (10th Cir. 2004). See also Assman v.
Fleming, 159 F.2d 332, 336 (8th Cir. 1947)(explaining that plaintiffs must usually prove fraud by
clear-and-convincing evidence).
Unlike civil cases involving allegations of fraud or quasi-criminal wrongdoing, due process
does not require universities evaluating sexual misconduct allegations to apply a clear and
convincing evidentiary standard.124 See Doe v. Cummins, 662 F. App’x at 449 (concluding that
a university’s use of the preponderance-of-evidence standard in sexual misconduct disciplinary
proceedings satisfied the Mathews v. Eldridge test). No federal courts have concluded that students
are entitled to anything more than a preponderance-of-the-evidence standard in sexual misconduct
disciplinary proceedings. See Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass.
2016)(Saylor, J.)(“Brandeis”); Doe v. Va. Polytechnic Inst. & State Univ., 400 F. Supp. 3d 479,
...
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party . . . .
Fed. R. Civ. P. 60(b).
124
Despite repudiating the Dear Colleague Letter, the Department of Education has not
rejected the preponderance standard as per se unconstitutional, explaining that,
in reaching a determination regarding responsibility, the [University] must apply
either the preponderance-of-the-evidence standard or the clear and convincing
evidence standard. The recipient may, however, employ the preponderance-of-theevidence standard only if the recipient uses that standard for conduct code
violations that do not involve sexual harassment but carry the same maximum
disciplinary sanction. The recipient must also apply the same standard of evidence
for complaints against students as it does for complaints against employees,
including faculty.
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal
Financial Assistance, 83 Fed. Reg. 61462-01 (proposed Nov. 29, 2018).
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501 (W.D. Va. 2019)(Dillon, J.)(rejecting the plaintiff’s argument that he was entitled to a more
protective evidentiary standard, because the United States Court of Appeals for the Fourth Circuit
has held that trial-like procedures are not required to satisfy the constitution); Doe v. Univ. of ArkFayetteville, No. 5:18-cv-05182, 2019 WL 1493701, at *10 (April 3, 2019)(Holmes, J.)(“Doe fails
to argue how the preponderance-of-the-evidence standard, utilized in similar sexual misconduct
civil actions, denies due process.
School disciplinary proceedings are not criminal trials.
Standards such a clear and convincing evidence and beyond reasonable doubt are not required in
such a civil proceeding.”); Messeri v. Univ. of Colorado, Boulder, No. 18-CV-2658-WJM-SKC,
2019 WL 4597875, at *17 (D. Colo. Sept. 23, 2019)(Martinez, J.)(concluding that a plaintiff in
sexual misconduct disciplinary proceedings had not established he had a clearly established right
to a standard greater than preponderance-of-the-evidence); Doe v. Haas, 427 F. Supp. 3d 336, 350
(E.D.N.Y. 2019)(Hurley, J.)(holding that, where a university suspended a student and placed a
permanent mark on his transcript denoting a sexual misconduct violation, preponderance-of-theevidence was the proper standard, because “courts have rejected the notion that safeguards
applicable to criminal proceedings should be applied in the school disciplinary context”); 83 Fed.
Reg. 61462-01 (explaining that the preponderance standard can satisfy due process as long as
universities apply it uniformly during disciplinary proceedings). See also Defendants’ MSJ Memo
at 26 (explaining that the Defendants had not “found a single federal case that has found that the
use of the preponderance standard in school disciplinary proceedings -- even those involving
sexual misconduct -- is violative of due process”). But see Plummer, 860 F.3d at 780 (Jones, J.,
dissenting)(“Elevating the standard of proof to clear and convincing, a rung below the criminal
burden, would maximize the accuracy of factfinding.”).
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Lee cites Brandeis, 177 F. Supp. 3d at 602, for the proposition that “being found to have
engaged in sexual assault at the university level” is “not as severe as criminal consequences,” but
“bears some similarities, particularly in terms of reputational injury.’” Response at 29. In
Brandeis, the Honorable Dennis Saylor, IV, United States District Judge for the United States
District Court for the District of Massachusetts, concludes that Brandeis University’s
preponderance-of-the-evidence standard for sexual assault disciplinary proceedings “is not
problematic, standing alone.” 177 F. Supp. at 607. Judge Saylor concludes that the standard was
among the reasons Brandeis University’s procedures violated the Due Process Clause, but only
because it applied a clear-and-convincing standard for “virtually all other forms of student
conduct.” 177 F. Supp. at 607. Judge Saylor concludes, therefore, that the preponderance standard
“may thus be seen, in context, as part of an effort to tilt the playing field against accused students,
which is particularly troublesome in light of the elimination of other basic rights of the accused.”
177 F. Supp. 3d at 607. Here, by contrast, UNM evaluates all student misconduct – not just sexual
misconduct -- using a preponderance-of-the-evidence standard. See Student Handbook at 6-7.
The concerns that Judge Saylor raised in Brandeis, therefore, are not salient here, because UNM’s
use of the preponderance-of-the-evidence standard “is not problematic, standing alone.” 177 F.
Supp. at 607.125
The Court also disagrees with Lee’s contention that, as the Honorable Judge Edith C. Jones,
Circuit Judge for the United States Court of Appeals for the Fifth Circuit, noted in Plummer,
“‘[e]levating the standard of proof to clear and convincing, a rung below the criminal burden,
125
Because the preponderance-of-the-evidence standard satisfies due process, universities
are free to apply this standard or a higher standard. A university may also apply different standards
of proof for different categories of offenses. Thus, even if UNM had used a preponderance-ofthe-evidence standard in sexual misconduct cases and a higher evidentiary standard in other
student misconduct cases, it would not have run afoul of the Due Process Clause.
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would maximize the accuracy of factfinding.’” Response at 29 (quoting Plummer, 860 F.3d at 783
(Jones, J., dissenting)). As the Court explained in its MOO, “‘there exists a consensus among
evidence law scholars . . . that increasing the stringency of the standard of evidence . . . will tend
to shift the expected ratio of false negative errors versus false positive errors and thereby lower the
overall accuracy of outcomes in the system.’” MOO, 449 F. Supp. at 1132 n.17 (quoting William
C. Kidder, (En)forcing A Foolish Consistency?: A Critique and Comparative Analysis of the
Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX
Proceedings, 45 J.C. & U.L. at 12 (emphasis in original)). The preponderance-of-the-evidence
standard “allows courts to maximize the total number of correctly decided cases,” while other
standards “are not calibrated to achieve this accuracy maximizing and welfare-improving
consequence.” Ronald J. Allen & Alex Stein, Evidence, Probability, and the Burden of Proof, 55
Arizona L. Rev. 557, 591 (2013).
Lee also cites Doe v. University of Colorado, Boulder, 255 F. Supp. 3d 1064, 1082 n.13
(D. Colo. 2017)(Martinez, J.)(“UC Boulder”), where a university expelled a student and placed a
permanent notation on his transcript after the student was accused of raping two other students.
UC Boulder, 255 F. Supp. 3d at 1069, 1073. Lee notes that there, the Honorable William Martinez,
United States District Judge for the District of Colorado, “recognized that ‘there is a fair question
whether preponderance-of-the-evidence is the proper standard for disciplinary investigations’
involving sexual misconduct allegations.” Response at 29 (quoting UC Boulder, 255 F. Supp. 3d
at 1082 n.13). Judge Martinez declined to address the issue, however, because the defendants
failed to raise it until their reply brief, noting only that the preponderance standard’s
appropriateness in university disciplinary proceedings for sexual misconduct is “up for debate.”
255 F. Supp. 3d at 1082 n.13. Having evaluated the evidence on both sides of this debate, the
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Court concludes -- like every other federal court that has addressed this issue -- that UNM may
apply the preponderance of the evidence standard in student disciplinary proceedings.
In the end, the Anglo-American system of civil law relies on the preponderance of evidence
burden of proof to make a host of important decisions. Billions of dollars are transferred from one
person another on the basis of preponderance of the evidence. That burden has worked for a broad
range of important cases for centuries. John Leubsdorf, The Surprising History of the
Preponderance Standard of Civil Proof, 67 Fla. L. Rev. 1569, 1601-02 (2015)(explaining that the
preponderance-of-the-evidence standard was the default standard for all cases until the midnineteenth century, when courts began requiring proof beyond a reasonable doubt in criminal
cases). There is no reason to create an exception for college students accused of sexual assault.
Moreover, the burden of proof only makes a difference in close cases. Most cases are not that
close, as the factfinder does not talk about the burden of proof much. Only when the factfinder is
obsessing over the result and is stuck is it a good idea to remind the factfinder of the burden of
proof.126 Most cases are not razor thin, and the burden of proof is inapplicable in the vast majority
126
In the Tenth Circuit in a criminal case, a judge reminds the jury to consider the burden
of proof when they reach an impasse:
Members of the jury, I am going to ask that you return to the jury room and
deliberate further. I realize that you are having some difficulty reaching a
unanimous agreement . . . .
You are reminded that the defendant is presumed innocent, and that the
government, not the defendant, has the burden of proof and it must prove the
defendant guilty beyond a reasonable doubt. Those of you who believe that the
government has proved the defendant guilty beyond a reasonable doubt should stop
and ask yourselves if the evidence is really convincing enough, given that other
members of the jury are not convinced. And those of you who believe that the
government has not proved the defendant guilty beyond a reasonable doubt should
stop and ask yourselves if the doubt you have is a reasonable one, given that other
members of the jury do not share your doubt. In short, every individual juror should
reconsider his or her views.
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of cases. Moreover, the requiring higher evidentiary standard also will make it more likely that
UNM reaches the wrong outcome. See William C. Kidder, (En)forcing A Foolish Consistency?:
A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of
Evidence Regulation for Campus Title IX Proceedings, 45 J.C. & U.L. at 12. Because a lower
evidentiary standard increases the likelihood of accurate outcomes, retaining it implicates UNM’s
“strong interest in the ‘educational process,’ including maintaining a safe learning environment
for all its students.” Plummer, 860 F.3d at 773 (quoting Goss, 419 U.S. at 580). In addition to its
legitimate efficiency concerns, see Gorman v. Univ. of R.I., 837 F.2d at 14-15 (discussing
administrative burdens on universities), UNM has a very strong interest in reaching the correct
conclusion as it reviews sexual misconduct allegations, see Heidi M. Zinzow, A Longitudinal
Study of Risk Factors for Repeated Sexual Coercion and Assault in US. College Men, 44 Archives
Sexual Behavior 213 (2015)(noting the high recidivism rates in campus sexual assault). Lee’s
interests in avoiding expulsion or sanction based on a sexual misconduct allegation are significant,
but they do not overcome UNM’s interests in accurately determining who has violated its sexual
misconduct policies to protect its students. See Butler v. Rio Rancho Pub. Sch. Bd., 341 F.3d at
1201 (recognizing a school’s interest in protecting its students’ safety). This conclusion accords
with the balance other courts have struck. See, e.g., Doe v. Va. Polytechnic Inst. & State Univ.,
400 F. Supp. 3d at 501; Doe v. Univ. of Ark-Fayetteville, 2019 WL 1493701, at *10; Brandeis,
177 F. Supp. 3d at 607. Balancing these interests, the Court affirms that due process permits state
education institutions such as UNM to adjudicate sexual misconduct disciplinary proceedings
according to a preponderance-of-the-evidence standard. Accordingly, the Court concludes that
Tenth Circuit Pattern Jury Instructions: Criminal 67 (2011).
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UNM’s application of the preponderance standard was “constitutionally sound and does not give
rise to a due-process violation.” Doe v. Cummins, 662 F. App’x at 449.
VII.
UNM HAS NOT VIOLATED LEE’S DUE PROCESS RIGHTS BY
CONSIDERING ALCOHOL AS A FACTOR IN DETERMINING LEE’S
SANCTIONS FOR VIOLATING UNM POLICY.
Lee argues that the “OEO violated” his due process rights, because he did not receive
“notice or an opportunity to be heard on the charge regarding underage drinking.”127 Response at
30. Lee received notice of the “charges” against him before the OEO: “issues and concerns of
possible sexual violence and sexual misconduct.” Oct. 16 Letter at 5. The Court disagrees with
Lee’s assertion that provision of alcohol to minors was a “charge” against him. See Response at
30. His provision of alcohol to minors was, instead, a factor in the DOS’ sanctioning decision.
See DOS Sanctions Letter at 23. As the Court noted at the hearing, the DOS’ sanctioning phase - bifurcated from the OEO’s sexual misconduct determination -- is analogous to a court’s
sentencing phase, during which courts have “broad discretion” and can “consider just about
anything.” Tr. at 106:4-18 (Court). See DOS Sanctions Letter at 22-23. Moreover, Lee had a
sanctioning decision hearing with the DOS, where he had the opportunity to present mitigating
information, including that he had “never been in trouble with the law,” and that his “only interest
is to complete my dissertation and move on.” Written Statement on Administrative Hearing at 1920. It was at this hearing, in fact, that Lee admitted to the hearing officer that he provided alcohol
to minors. See DOS Sanctions Letter at 22-23. Moreover, Chibanga informed Lee before the
hearing that he would have “the opportunity to present . . . evidence, as it relates to the
sanctioning” that “you would like me to consider.” May 20 Email at16. Lee, therefore, knew or
127
The DOS, not the OEO, made the sanctioning decision in Lee’s case. See DOS
Sanctions Letter at 22-23.
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should have known that, if he informed Chibanga at the hearing that he provided alcohol to minors,
she might consider this fact in her sanctioning decision. See May 20 Email at 16. Lee also told
the OEO that he provided alcohol to Roe and Goodnight, see Lee’s Typewritten Statement at 8 (“I
got out the cups . . . a 2-liter of Dr. Pepper, alcohol, playing cards, and the fake money.”), and
Chibanga placed Lee on notice that she would consider evidence from the OEO’s investigation,
see May 20 Email at 16. The Court, therefore, concludes that due process did not require the DOS
to provide Lee with any further notice that it would consider his provision of alcohol to minors.
See Watson, 242 F.3d at 1241.
Further, in Watson, the Tenth Circuit indicated that it is unwilling to adopt the notice
standard which Lee proposes. See 242 F.3d at 1241. There, the plaintiff was expelled after being
“charged” with assaulting his roommate. 242 F.3d at 1241. Like Lee, the plaintiff argued that the
school disciplinary board violated his due process rights, because it did not notify him that it would
consider that the assault was racially motivated. 242 F.3d at 1241. See Response at 30-31. Judge
John W. Lungstrum, United States District Judge for the District Judge, explained that the school
disciplinary board’s conclusion that “the motive for the assault was racism does not constitute an
independent charge.” 242 F.3d at 1241. Judge Lungstrum also noted that the plaintiff was not
expelled “because he was racist . . . he was expelled for the assault.” 242 F.3d at 1241.
As in Watson, the provision of alcohol to minors is not an independent charge against Lee,
and thus the Defendants are not required to provide notice that they would consider it in their
sanctioning decision. See 242 F.3d at 1241; Oct. 16 Letter at 5. Likewise, Lee was not expelled
because he provided alcohol to minors -- he was expelled for nonconsensual sexual contact. See
242 F.3d at 1241; DOS Sanctions Letter at 22-24. Lee’s purchase of alcohol for minors was not
determinative in UNM’s decision to expel him -- it was one of six pieces of evidence upon which
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the DOS based its decision for Lee’s sanctions. See DOS Sanctions Letter at 22-23. Lee also
admitted to the hearing officer, Chibanga, that he purchased alcohol for minors; under Watson, “a
student is not prejudiced by lack of notice” where he “candidly admits his guilt.” 242 F.3d at 1241.
See DOS Sanctions Letter at 22-24. Furthermore, like the plaintiff in Watson, Lee “does not cite,
and this court does not find, any precedent for the proposition that notice must include all” factors
considered in a sanctioning decision. 242 F.3d at 1241. See Response at 30. This “extensive”
level of notice “is not even due in a criminal trial,” and requiring such extensive notice would
overcomplicate sanctioning decisions. 242 F.3d at 1241. See Tr. at 108:3-5 (Court).
Lee compares this case to Greenhill, 519 F.2d at 6, arguing again that, like the plaintiff in
Greenhill, he never received notice of the grounds for his sanction. See Response at 30-31. In
Greenhill, two committees voted to recommend the plaintiff medical student’s suspension, because
of his academic performance. See 519 F.2d at 6. The plaintiff appealed by letter, because the
medical school did not allow in person appearances, but the defendants upheld his suspension. See
519 F.2d at 6-7. After the plaintiff’s suspension had been finalized, the medical school sent a form
to the medical colleges’ association explaining that the plaintiff was suspended, because of “poor
academic standing” given his “lack of intellectual ability or insufficient preparation.” See 519
F.2d at 6-7. The Honorable Judge William H. Webster, United States Circuit Judge for the United
States Court of the Appeals for the Eighth Circuit, concludes that “at the very least, Greenhill
should have been notified in writing of the alleged deficiency in his intellectual ability, since this
reason for his dismissal would potentially stigmatize his future as a medical student elsewhere,
and should have been accorded an opportunity to appear personally to contest such allegation.”
519 F.2d at 9. Judge Webster continued that the plaintiff was entitled to “an ‘informal give-andtake’ between the student and the administrative body dismissing him and foreclosing his
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opportunity to gain admission at all comparable institutions,” which “would, at least, give the
student ‘the opportunity to characterize his conduct and put it in what he deems the proper
context.’” 519 F.2d at 9 (quoting Goss, 419 U.S. at 584).
Although Judge Webster’s concerns were valid, they do not apply here.128 See 519 F.2d at
9. First, as Judge Webster noted, “there has long been a distinction between cases concerning
disciplinary dismissals, on the one hand, and academic dismissals, on the other.” 519 F.2d at 8.
Lee’s case is a disciplinary dismissal, while the Greenhill plaintiff was dismissed on academic
grounds. See 519 F.2d at 8; DOS Sanctions Letter at 23. Further, unlike in Greenhill, UNM
notified Lee of the reason for his expulsion -- his violation of two UNM policies. See 519 F.2d at
6-8; DOS Sanctions Letter at 23. Like the plaintiff in Greenhill, Lee’s transcript has a notation,
indicating the DOS’ decision to expel him from UNM. See 519 F.2d at 7; DOS Sanctions Letter
at 23. This notation, however, states that Lee was “expelled from the University of New Mexico
for disciplinary reasons.” DOS Sanctions Letter at 23. The notation does not specify why Lee
was expelled, like the form sent to the medical colleges’ association in Greenhill, and does not
state that he provided alcohol to minors. See 519 F.2d at 6-7; DOS Sanctions Letter at 23. Further,
unlike the plaintiff in Greenhill, who was able to respond to the charges against him only by letter,
Lee had the opportunity to discuss his provision of alcohol to minors at the hearing, and was thus
able to “‘characterize his conduct and put it in what he deems the proper context.’” 519 F.2d at 9
(quoting Goss, 419 U.S. at 584). Last, while the plaintiff in Greenhill did not receive advance
notice of the reason for his dismissal, see 519 F.2d at 9, Lee received advance notice of the charges
of sexual misconduct against him, see Oct. 16 Letter at 4. Lee’s lack of notice that the DOS would
128
The Court would have cause for concern if UNM had, like the defendant in Greenhill,
contacted other universities and notified them of charges against Lee without providing notice to
Lee himself. See 519 F.2d at 6-7.
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consider his provision of alcohol to minors, therefore, does not present the same due process
concerns as Greenhill’s situation. See 519 F.2d at 9; DOS Sanctions Letter at 22-24.
In a criminal case, sentencing can be wild and unstructured, in comparison to the order of
a trial. At trial, the system works hard to give defendants notice of charges, and keep the trial in
focus and evidence relevant to these charges. When it gets to sentencing, the parties bring the dump
truck, and unload on the Court all sorts of evidence. United States v. Romero, No. CR 09-1253
JB, 2012 WL 6632493, at *14 (D.N.M. Dec. 6, 2012)(Browning, J.)(discussing courts’ broad
discretion to consider evidence at sentencing). The Supreme Court has said that a trial court can
consider almost anything at a sentencing. See Williams v. People of State of N.Y., 337 U.S. 241,
247 (1949)(“Highly relevant -- if not essential -- to [a sentencing judge’s] selection of an
appropriate sentence is the possession of the fullest information possible concerning the
defendant's life and characteristics.”). Victims and defendants come to court and say all sorts of
things at a sentencing. It is hard to give advance notice to everything that comes out of a victim’s
and defendant’s mouths. The Court, therefore, declines to impose a higher notice requirement on
the sanctioning stage of a university than it imposes at the sentencing phase of a criminal trial.
IT IS ORDERED that: (i) the Defendants’ Motion for Summary Judgment, filed February
6, 2020 (Doc. 70) is granted; and (ii) the Plaintiffs’ due process claims are dismissed.
________________________________
UNITED STATES DISTRICT JUDGE
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Counsel:
Aryln G. Crow
Alana M. De Young
Adams + Crow Law Firm
Albuquerque, New Mexico
Attorneys for the Plaintiff
Quentin Smith
Leah M. Stevens-Block
Jackson Loman Stanford & Downey, P.C.
Albuquerque, New Mexico
Attorneys for the Defendants
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