Doe v. University of South Alabama et al., U.S. Dist. Ct. S. Dist. Alabama, S. Div (February 14, 2020)
Plaintiff, John Doe, was a student at the university, on a full ROTC scholarship that included tuition, fees, money for textbooks and a monthly subsistence check. Doe was notified in October of 2016 that he had been “listed as the responsible person in a violation of the Student Code of Conduct, for engaging in sexual violence towards two individuals”. (Roe 1 & Roe 2).
Following the investigation in that case, the investigator made specific findings of fact and conclusions in favor of Roe 1 & 2 and presented those findings to the University Disciplinary Committee prior to any testimony at the hearing. Doe sought to include additional, relevant information, including providing a witness who (reportedly) had been wrongfully accused of assault by Roe 1, but was refused.
Banners and flyers hung by Victim Advocates were in the common area outside the hearing room with advocacy-based statements. The investigator served as an advisor for the hearing and participated in the deliberations. There was no recording of the hearing. Doe was found responsible, placed on conduct probation, given 100 hours of community service, termination of his housing contract, and banned from other campus facilities.
Doe appealed the decision. The decision was upheld but the sanction was modified to allow Doe to remain in university housing.
In November of 2016 Doe was notified that he was accused of off-campus sexual misconduct by Roe 3, based on Roe’s inability to consent due to incapacitation. Doe then filed a Title IX complaint against Roe 3 for transmitting a sexually transmitted disease. The university did not assist Doe in investigation of his claims. The assigned investigator was the same one in the cases involving Roe 1 & 2. The university assigned an advocate to Doe who did not reach out to him, nor appear at the hearing. Doe sought to have information on the previous case excluded in his hearing and for the investigator to recuse herself since she had exhibited animus and malice toward Doe in the prior hearing. The investigator recused herself.
During the hearing (in which the cross allegations were considered), Roe 3 mentioned details from the previous hearing, despite being admonished not to do so. Doe protested, but the hearing was allowed to proceed. Doe was found responsible for sexual violence, Roe 3 was found not responsible, but the Dean of Students ordered a new hearing for Doe, because of the statements made by Roe 3 during the hearing. He also placed the original investigator as the hearing chair. Doe objected to the investigator serving as the hearing chair and was informed by the Dean that the investigator did not have a conflict of interest related to this role. He also sought supportive measures; a specific allegation of the charge to be brought against Roe 3; a list of witnesses. and to be accompanied by his advocate to review the investigation file. All of his requests were denied.
The hearing panel consisted of two faculty and four students, one of whom served on the previous panel that found Doe responsible. This student also selected the other three students to serve on the panel. Doe was again found responsible and suspended from the university for one year and trespassed from the campus during that time.
Doe brought suit based on denial of due process; breach of contract; Title IX (selective enforcement, erroneous outcome, deliberate indifference); failure to provide a fair and impartial hearing; failure to provide opportunity to confront or cross-examine witnesses; withholding information critical to Doe’s defense; violation of the institution’s own rules; and Sec. 1983 claims against multiple individuals at the university.
Holding & Commentary:
The court did not sustain Doe’s erroneous outcome claim in spite of finding the facts presented cast doubt on the accuracy of the proceeding, because he was unable to establish a gender bias as the foundation for the claim. Further, the court asserted that “demonstrating that a university official is biased in favor of the alleged victims of sexual assault claims, and against perpetrators, is not the equivalent of demonstrating bias against male students.” The court applied the Davis standard in assessing Doe’s Title IX claim, with regard to deliberate indifference, and determined that although Doe presented many examples of “harm” that he experienced, the university’s alleged actions did not constitute deliberate indifference on the part of the institution. Finally, the court upheld Doe’s due process claims to enable him to present supported facts at trial that the named individuals were biased against him but denied Doe’s other due process claims.
- The facts in this case as presented send a strong message about conflicts of interest and bias in the investigation and proceedings. The investigator wore multiple hats and not only investigated the prior Doe case, but also served as the hearing officer in a subsequent case. The investigator also trained and supervised the hearing panel.
- Engaging in multiple roles in a single case is likely to raise a presumption of a conflict of interest sufficient for a court to allow a case to move forward and survive dismissal.
- We must carefully monitor any of the individuals involved in the intake, investigation, training or adjudication of a case to ensure there are no apparent or perceived conflicts of interest or bias.