John Doe v. Univ. of Cincinnati

872 F.3d 393

John DOE, Plaintiff–Appellee,

v.UNIVERSITY OF CINCINNATI; Aniesha Mitchell; Juan Guardia, Defendants–Appellants.

No. 16-4693.

United States Court of Appeals, Sixth Circuit.

Argued: August 1, 2017

Decided and Filed: September 25, 2017

ARGUED: Evan T. Priestle, TAFT, STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellants. Joshua Adam Engel, ENGEL & MARTIN, LLC, Mason, Ohio, for Appellee. ON BRIEF: Evan T. Priestle, Doreen Canton, TAFT, STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellants. Joshua Adam Engel, ENGEL & MARTIN, LLC, Mason, Ohio, for Appellee.

Before: CLAY, GRIFFIN, and THAPAR, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

On September 6, 2015, University of Cincinnati students John Doe and Jane Roe¹ engaged in sex at John Doe's apartment. John contends that the sex was consensual; Jane claims it was not. No physical evidence supports either student's version.

After considerable delay, defendant University of Cincinnati ("UC") held a disciplinary hearing on Jane Roe's sexual assault charges against graduate student John Doe. Despite Jane Roe's failure to appear at the hearing, the University found John Doe "responsible" for sexually assaulting Roe based upon her previous hearsay statements to investigators. Thereafter, UC suspended John Doe for two years—reduced to one year after an administrative appeal.

Plaintiff Doe appealed his suspension to the district court, arguing that the complete denial of his right to confront his accuser violated his due process right to a fair hearing. In granting a preliminary injunction against Doe's suspension, the district court found a strong likelihood that John Doe would prevail on his constitutional claim. So do we, and for the reasons stated herein, affirm the order of the district court.

The Due Process Clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process. Here, the University's disciplinary committee necessarily made a credibility determination in finding John Doe responsible for sexually assaulting Jane Roe given the exclusively "he said/she said" nature of the case. Defendants' failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.

I.

John Doe met Jane Roe on Tinder, and after communicating for two or three weeks, met in person. Thereafter, Doe invited Roe back to his apartment, where the two engaged in sex. Three weeks later, Jane Roe reported to the University's Title IX Office that John Doe had sexually assaulted her that evening in his apartment. Five months later, UC cited Doe for violating the Student Code of Conduct, "most specifically," the University's policies against sex offenses, harassment, and discrimination.

UC resolves charges of non-academic misconduct through an Administrative Review Committee (ARC) hearing process. The process begins when "[a]ny person, department, organization or entity" files a complaint against a student, and the University informs the student of the allegations against him. If the claim involves a potential sexual offense, UC's Title IX Office investigates the matter, interviewing both parties and gathering the evidence. Defendant Aniesha Mitchell, the Director of UC's Office of Student Conduct and Community Standards, discloses the evidence to the accused student before the hearing.

During the hearing, the ARC panelists (a mix of faculty and students) hear the allegations, review the evidence, and question the participating witnesses. Accused students are entitled to present favorable evidence and explain their side of the story in their own words. They may also question witnesses through a "circumscribed form of cross-examination"—one that involves "submitting written questions" to the ARC panelists, "who then determine whether [the] questions are relevant and whether they will be posed to the witness." Doe v. Cummins , 662 Fed.Appx. 437, 439, 448 (6th Cir. 2016).

However, there is no guarantee that a witness will appear for questioning. "Witnesses are strongly encouraged to be present for hearings," but UC's Code of Conduct does not require them to be present, regardless of whether they are the accused, the accuser, or a bystander with relevant information. If a witness is "unable to attend," the Code permits him to submit a "notarized statement" to the Committee in lieu of an appearance. At the close of the hearing, the ARC deliberates and determines whether the accused student should be found "responsible" for violating the Code of Conduct.

Defendants planned to follow these procedures at Doe's June 27, 2016, hearing, but modified the process when Jane Roe failed to appear. The Committee Chair explained how the hearing would proceed in her absence:

So, during the hearing, the Administrative Review Committee and both the respondent and complainant shall have the right to submit evidence and written questions to be asked of all adverse witnesses who testify in the matter. The hearing chair, in consultation with the ARC, has the right to review and determine which written questions will be asked. Questions will be asked in the order presented by the Chair. And all questions from the complainant and respondent must be submitted in writing for review by the ARC [C]hair.

Again, there is no complainant here and we have no witnesses. So we likely won't have to do any of this.

John Doe claims, and defendants do not dispute, that he was not informed in advance that Jane Roe would not be attending the hearing.

The Chair recited the Code of Conduct violations leveled against Doe and invited him to enter an "understanding"—accepting or denying responsibility for the allegations. Doe entered an understanding of not responsible.

The Chair then read a summary of the Title IX Office's report, which began with Jane Roe's account of the night in question, followed by Doe's account. Each party's account was based on his or her interview statements to the Title IX investigators and included remarks that would be hearsay if introduced in court. The Chair also read a summary of witness statements from four of Jane Roe's friends who were told of the alleged sexual assault through Roe. Once the Chair finished, he gave the Committee members the chance to ask questions regarding the report. They had none.

The Chair then asked whether John Doe had any questions:

[The Chair]: Okay, so the complainant is not here. At this time I would have given Roe time to ask questions of the Title IX report. But again, they [sic] are not here. So we'll move on.

So now, do you, as the respondent Mr. Doe, have any questions of the Title IX report?

[Doe]: Well, since she's not here, I can't really ask anything of the report.

Is this the time where I would enter in like a situation where like she said this and that never could have happened? Because that's just—

[The Chair]: You'll have time here in just a little bit to direct those questions. Just—

[Doe]: Then no, I don't have any questions for the report.

With that, the Chair concluded the "Title IX presentation" portion of the hearing.

"And so now," the Chair explained that if Jane Roe had been present, he would have asked her to "read into the record what happened and [provide] any additional information." "The ARC would then have time to ask clarifying questions" of Roe, followed by Doe's opportunity to ask her questions. "Again," however, the Chair noted Roe was not present and "move[d] onto the next step"—asking Doe to "summarize what happened." Doe challenged a number of Roe's statements, and responded to the Committee's questions. Following this exchange, the Chair read Jane Roe's written closing statement into the record and invited Doe to give a responsive closing statement.

After its deliberations, the Committee submitted its recommended findings to Daniel Cummins, UC's Assistant Dean of Students. It recommended that Cummins find Doe responsible for violating the Student Code of Conduct and issue a two-year suspension. On July 7, Cummins notified John Doe that he had accepted the recommendation.

Doe appealed the decision the next day. The University's Appeals Administrator rejected Doe's appeal of the finding of responsibility, but recommended that his sentence be reduced to a one-year suspension to begin at the end of the fall 2016 semester, and conclude at the end of the fall 2017 semester—meaning Doe could not attempt to re-enroll in his graduate program until January 2018. Defendant Juan Guardia, the Assistant Vice President and Dean of Students, accepted the Administrator's recommendation and informed plaintiff on September 23, 2016, that this was the University's final decision.

II.

Doe then filed this action against UC Administrators Guardia and Mitchell and the University in the district court. Plaintiff Doe claimed that defendants violated his due process rights under the United States and Ohio Constitutions and discriminated against him in violation of Title IX.

On the same day he filed his complaint, Doe moved for preliminary relief enjoining UC from enforcing his suspension. Plaintiff's motion focused solely on defendants' failure "to permit John Doe to confront his accuser." Doe maintained that UC could not constitutionally find him responsible for sexually assaulting Roe without "any opportunity to confront and question" her. The district court agreed.

"In this case," the court reasoned, "the ARC Hearing Committee was given the choice of believing either Jane Roe or Plaintiff, and therefore, cross-examination was essential to due process." Doe v. Univ. of Cincinnati , 223 F.Supp.3d 704, 711 (S.D. Ohio 2016). The fact that Doe could have submitted written questions to the Committee Chair, which the Chair could have put to Roe, had she appeared at the hearing, did not convince the district court otherwise. Id. at 712. And although UC's Code of Conduct permits absent witnesses who are "unable" to attend the hearing to provide notarized statements, the...