In December, I wrote about how Jacob Doe – a UNC student accused of sexual misconduct – received a refreshingly favorable ruling on a motion for injunctive relief. Continuing that success, his lawsuit recently survived a motion to dismiss in a strong opinion from Chief Judge Martin Reidinger (a G.W. Bush nominee) in U.S. District Court for the Western District of North Carolina.

As with the former favorable decision, Doe was represented by Nesenoff and Miltenberg. I won’t go into detail on every facet of this opinion because it is rather extensive, but I would like to hit on several key aspects.

Title IX

Doe alleged that UNC “erroneously found him responsible for sexual misconduct because of his sex, and that as a result, he suffered substantial damages, including loss of future educational and career opportunities, emotional distress, reputational damage, and economic injuries.” To do that, he needed to state:

1. “Particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding”
2. “Particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding”

Doe satisfied the first element by arguing UNC’s proceedings were flawed; in particular, that school officials:

1. Consistently asked an accuser leading questions (effectively telling her what to say) while asking Doe repeated misleading questions
2. Aggressively pursued Doe but not his accuser for evidence
3. Misrepresented the allegations against Doe
4. Conspired to withhold evidence
5. Allowed the accuser’s attorney to answer for her during cross-examination
6. Surprised Doe and his attorney during the hearing (which meant Doe had no notice or opportunity to gather evidence) by considering new incidents that were alleged to occur on a different date
7. And more.

Doe also satisfied the second element (gender bias as a motivating factor) by citing the Second Circuit’s Doe v. Columbia decision which held that if the evidence “substantially favors” one side and the school’s decision favors the other it is plausible to infer gender bias.

Due Process

This claim survived dismissal as well. Citing Joint Anti-Fascist Refugee Comm. v. McGrath, Judge Reidinger reminded UNC that “Procedural due process rights attach where state action condemns a person to ‘suffer grievous loss of any kind.’” He further added that “The requirements of procedural due process are flexible. However, generally, as the interest at issue becomes of more importance to the party at risk of deprivation, the procedural protections required become increasingly robust.”

He continued:

Plaintiff has made numerous allegations regarding serious procedural flaws that occurred at his disciplinary hearings. These include allegations that Plaintiff did not receive proper notification of the accusations against him, that he was not allowed to cross-examine his accusers, that the hearing panels failed to consider relevant exculpatory evidence, that relevant evidence was withheld from him, and that the investigators and members of the hearing panels demonstrated gender bias while investigating and adjudicating the allegations made against Plaintiff.

As a particularly stark example, Plaintiff alleges that one of his accuser was allowed by the hearing officer to leave the proceeding in order to avoid being cross-examined, and that the accuser’s attorney was permitted to “answer questions on her behalf.”

Of course, an attorney answering on cross in place of one of the parties destroys the entire purpose of cross-examination. UNC knows this. The attorney especially knows this.

Additionally:

Plaintiff alleges that UNC-CH violated its own policies, which guaranteed him a “prompt, thorough, and impartial resolution process[,]” guaranteed he would be provided with sufficient notice of the charges against him such that he would have time to prepare, guaranteed he would have an “opportunity to inspect and review any evidence obtained as part of the investigation[,]” guaranteed he would be “permitted to ask the other party . . . all relevant questions . . . , including those challenging credibility[,]” and guaranteed him that “any individual designated . . . as a decision-maker . . . must not have a conflict of interest or bias for or against Reporting Parties or Responding Parties generally or an individual Reporting Party or Responding Party; must not rely on sex stereotypes; and must promote impartial investigations and adjudications.”

Judge Reidinger found that Doe plausibly stated a due process claim and denied UNC’s motion to dismiss it.

Qualified Immunity

Qualified Immunity (QI) isn’t just for everyday police. It’s also for the campus “sex police” – at least, that’s what UNC and other universities have argued. Qualified immunity “takes cognizance of human imperfections” by protecting government officials from liability with respect to “bad guesses in gray areas” as Judge Reidinger cited from West v. Murphy and Braun v. Maynard. Plaintiffs can pierce a QI defense by arguing that the rights the defendants violated were clearly established. That appears to be exactly what happened here.

A reasonable person would be aware that investigators and adjudicators should be unbiased, and that an accused has a right to confront his accusers and the evidence against him. Thus, if Plaintiff’s allegations that he was denied an opportunity to cross examine his accusers, that he was prevented from reviewing the evidence used to find him responsible, and that the reports against him were investigated and adjudicated by biased parties prove true, Defendants will have violated Plaintiff’s clearly established due process rights.

Such officials may have the authority to make discretionary decisions within “gray areas”. The Plaintiff, however, has plausibly alleged that the Defendants actions in this case fall outside such gray areas. As such, the UNC Employee Defendants’ 12(b)(1) motions to dismiss based on qualified immunity are denied.

Breach of Contract

Doe argued that UNC created an “express and implied contracts when it offered, and [he] accepted, admission to UNC[-CH], and when [he] paid the required tuition and fees.” This contract, Doe alleges, required UNC to provide him with fair disciplinary procedures.

As with the due process claim, UNC sought dismissal of this claim by arguing that Doe failed to state a claim upon which relief could be granted. Judge Reidinger’s opinion on this matter was short, simply stating that Doe’s allegations, “when taken together, are sufficient to plausibly allege breach of contract.”

Other Claims

There were several other claims that were addressed in the 47-page opinion. They met with varying levels of success. Here is a quick summary:

1. Breach of contract (survived)
2. State constitutional claims (survived)
3. Negligent hiring and supervision (dismissed)
4. Negligent infliction of emotional distress (survived)
5. Intentional infliction of emotional distress (dismissed)
6. Tortious interference (survived)

If the parties don’t settle, I’m looking forward to Judge Reidinger’s summary judgment opinion.