��֭����

Ordinarily, I wait more than a week between bringing you these due process legal updates. But in the days following my last dispatch, a number of interesting things have happened that I want to bring you up-to-date on.

A complaint filed last week against Drake University in Iowa includes an intriguing argument. Like most such suits against private universities, it claims that Drake breached its contract with the student-plaintiff and discriminated against him on the basis of sex in violation of Title IX. But in addition, it argues that the university was—by virtue of coercive federal pressure—a state actor at the time of the incident, and as such, deprived the plaintiff of his constitutional due process rights.

The complaint in Doe v. Drake University, brought by a male student who was expelled from the university, stems from an allegation of sexual assault that occurred when both parties had been drinking heavily and had limited recollection of the night’s events. The plaintiff’s complaint alleges that, among other things, the university’s investigator failed to interview critical witnesses who could have shed light on the accuser’s level of intoxication during the night in question, and failed to investigate a claim by the accused student that he, in fact, had been unable to give consent due to his own intoxication level. The plaintiff—who has language-based learning disabilities—also complains that the university failed to provide him with the necessary accommodations during the disciplinary process.

As is typical with complaints against private universities, the plaintiff’s complaint includes claims that the university discriminated against him on the basis of sex, particularly because it was under federal Title IX investigation at the time of the incident, and that the university failed to follow its own procedures, in violation of its contractual obligations.

The complaint also alleges that the university violated the plaintiff’s constitutional due process rights. Specifically, the complaint alleges that the federal pressure on universities to address campus sexual assault—beginning with the ordering schools to adopt the “preponderance of the evidence” standard for sexual misconduct adjudications—was so intense as to effectively turn the university into a “state actor” for constitutional purposes. The complaint describes this pressure as follows:

Since 2011, the United States has consistently reaffirmed and adhered to the threat of substantial monetary penalties made in the Dear Colleague Letter. For example, in July 2014, DOE Assistant Secretary for Civil Rights Catherine Lhamon stated that she would strip federal funding from any college found to be non-compliant with the requirements of the Dear Colleague Letter. “Do not think it’s an empty threat,” Lhamon warned. Shortly after this edict was issued, Drake was brought under investigation by the OCR for mishandling sexual assault cases.

[...]

Upon information and belief, Drake acted in response to the federal government’s threat that colleges refusing to comply would be found in violation of Title IX and be subject to extremely substantial, indeed crippling, monetary penalties.

Accordingly, Drake was coerced by the United States into complying with the Title IX investigative and adjudicatory process mandated by the Dear Colleague Letter and by subsequent federal actions, statements, and directives.

We will be following this new suit with interest, and will keep you apprised of any developments.

There have also been two more judicial decisions issued since my last update, and they could not be more different from one another.

In Doe v. University of Cincinnati, the U.S. Court of Appeals for the Sixth Circuit upheld a federal district court’s decision dismissing the complaints of two male students who claimed that the University of Cincinnati, which is public, violated their due process rights and discriminated against them in campus sexual misconduct adjudications. Among other things, the plaintiffs argued that the hearing panel was prejudiced by having been allowed to hear victim-impact statements—including, in one plaintiff’s case, a statement that the plaintiff was “a rapist” and was “going to Hell”—before deciding their guilt or innocence. In an unpublished decision, the court acknowledged that the students had a significant interest in the outcome of the proceedings against them, noting that “[a] finding of responsibility will thus have a substantial lasting impact on appellants’ personal lives, educational and employment opportunities, and reputations in the community.” However, the court held that the students’ allegations about the hearing’s shortcomings did not amount to due process violations.

In Arishi v. Washington State University, on the other hand, a Washington state appellate court ruled that under Washington’s state Administrative Procedure Act, universities are required to conduct a “full adjudication” in cases “where a college or graduate student faces expulsion or is charged with sexual misconduct that would amount to a felony under criminal law.” This decision—which is highly protective of students’ due process rights—was very specific to the laws of the state of Washington. But the court did make some general observations about the nature of campus sexual misconduct adjudications that have broader applicability. The court noted, for example, that the charges against the plaintiff posed “the risk of severe hardship,” both to the plaintiff’s economic interests and to his reputation. The court also noted that “cross-examination” was “critical” to a fair hearing in the case, since “assessment of veracity and credibility were key.”

As I’ve written before, this area of the law is evolving rapidly and with sometimes unpredictable results. We’ll bring you more on these important decisions as they come in.