An accused student pseudonymously named Jacob Doe, represented by Nesenoff and Miltenberg, received a favorable ruling from Chief Judge Martin Reidinger (a G.W. Bush nominee) in U.S. District Court for the Western District of North Carolina last week. I wanted to highlight it for several reasons. First, the motion was atypical as far as motions for preliminary injunctions by accused students go. Second, it is refreshing to see more favorable injunctive relief decisions; while 2020-2022 were not great years for them, 2023 has been more even-handed.

Background

Jacob Doe was a sophomore at the University of North Carolina at Chapel Hill. He was accused of misconduct by four female students. The complaint asserts that:

This was not an instance of four unconnected individuals who independently came forward to file reports with the University. Instead, this was a premeditated and coordinated campaign amongst the four women, spearheaded by UNC student Jane Roe 2, all of whom were part of a common friend group, regularly socialized with members of Plaintiff’s fraternity, and two of whom were best friends.

Jane Roe 2 admitted that her actions in organizing the complaints against Plaintiff were intended to ostracize him from his friends, to have him excluded from his fraternity, and to have him lose his prestigious scholarship at UNC.

Doe was expelled and unable to reapply to another school in the UNC system. He also lost his scholarship, apartment, and friends. In February of this year, he sued in federal district court under the eight claims below. The first three are the “trinity” of claims commonly brought in accused student litigation.

1. Due process (specifically, a § 1983 Fourteenth Amendment claim)
2. Title IX (erroneous outcome)
3. Breach of contract
4. Negligent hiring, supervision, and retention
5. Negligent infliction of emotional distress
6. Intentional infliction of emotional distress
7. Tortious interference
8. Violations of the North Carolina Constitution

While the litigation was ongoing, UNC “received a public records request seeking disclosure of his name and disciplinary record.” Doe filed a motion for a preliminary injunction to bar their release while UNC opposed it. ACLU of North Carolina Legal Foundation also filed an amicus brief supporting the exposure of Doe’s identity and disciplinary records, arguing primarily that it was against the public interest. After a hearing on November 21, with Stuart Bernstein delivering the oral argument on behalf of Jacob Doe, the motion was granted.

The Decision

The relief sought here was fairly narrow. While many motions for injunctive relief seek to enjoin universities from enforcing suspensions or expulsions – often raising sterner questions from judges – this motion instead sought to enjoin UNC from releasing Doe’s identity and information concerning the disciplinary proceedings against him and to notify any outside inquisitors that they were enjoined from doing so.

Judges decide preliminary injunctions by weighing four factors as set forth by the U.S. Supreme Court in Winter v. Natural Resources Defense Council. The first two are generally the most important: whether the plaintiff will suffer irreparable harm absent a granting of the motion and whether the plaintiff’s claims are likely to succeed on the merits.

The second two are the balance of equities (or the balance of harms or hardships that would occur between the parties if the relief were granted) and, lastly, whether the relief sought would be in the public interest.

If an accused student cannot convince a judge of either of the first two “threshold” factors, their motion is effectively doomed. Some judges, after finding no irreparable harm or likelihood of success on the merits, will simply deny the motion while declining to consider the balance of equities or public interest (examples: Doe v. Ohio State University, Doe v. University of Georgia).

UNC did not contest three of the factors – irreparable harm, the balance of equities, and the public interest – but it did address whether Doe was likely to succeed on the merits. Problematically, they focused exclusively on Doe’s Title IX claim out of a presumption that the success of Doe’s motion would turn “solely on the determination of…his primary federal claim.”

Chief Judge Reidinger thought otherwise:

The “likelihood of success” factor, however, must be analyzed in the context of the unique circumstances presented by the Plaintiff’s request for injunctive relief. The Plaintiff is not seeking a preliminary grant of the relief that would flow from a successful prosecution of his Title IX claim, such as temporary reinstatement to the University during the pendency of this litigation. Rather, he is only seeking to maintain the status quo and to prevent the disclosure of his identity and details regarding the University’s allegedly flawed investigation into his conduct until the underlying claims can be fully litigated.

He also noted that Doe brought compelling evidence for his Title IX erroneous outcome claim, including procedural deficiencies extensively documented in the verified complaint that:

…taken together…warrant concern that Doe was denied a full and fair hearing. The Plaintiff further has presented evidence that UNC-CH lacked sufficient evidence to find him responsible for sexual misconduct, and that the evidence that UNC-CH did have was unreliable. This evidence, when coupled with procedural irregularities, cast significant doubt on the accuracy of UNC-CH’s determination that the Plaintiff engaged in sexual misconduct. The Defendants have not produced any evidence at this stage to the contrary.

Doe also cited pressure exerted upon UNC by the Department of Education regarding its handling of sexual misconduct complaints and gender bias by Senior Investigator Jeremy Enlow and Associate Vice Chancellor Elizabeth Hall. Taken together, all of this led to Chief Judge Reidinger holding that Doe’s Title IX erroneous outcome claim was likely to succeed.

Concerning irreparable harm, he then broadly stated that the potential damage to Doe’s reputation and job prospects if his identity were disclosed could not be remedied by a monetary award within the court’s power.

Regarding the balance of equities, he also held that UNC would not be harmed by the injunction, whereas Doe would be greatly harmed. Here again, the narrowness of the relief sought played in Doe’s favor:

Here, the Plaintiff merely seeks to prevent the disclosure of his identity and the contents and substance of his disciplinary file…Where the Plaintiff seeks such meager interim relief, and the potential harm to the Plaintiff by denying such relief is so much greater than any potential harm to the Defendants (if any) in granting the relief, the balancing of the equities tips strongly in the Plaintiff’s favor.

The fourth factor – public interest – seems to be decided more subjectively or arbitrarily by federal judges in these cases than the other three. Public interest is not a threshold factor and is often mentioned last in opinions – if it is considered at all. With the way many of these decisions are read, the decision has already been made by the time public interest is considered.

Chief Judge Reidinger held that this factor also weighed in Doe’s favor, succinctly stating that “both the Plaintiff and the public are served by ensuring that the Plaintiff’s Title IX rights are protected.” The ACLU might as well have not filed a brief.

Reflecting on the decision and the briefing, it was interesting to see the ACLU devote so much of its attention to public interest (even if it does fit thematically with the scope of their mission) given that it is one of the weaker considerations in determining injunctive relief, while UNC simultaneously ignored the other three factors and focused exclusively on challenging Doe’s chances of succeeding on his Title IX claim – one of the complaint’s clearly stronger claims.

With all factors considered in Doe’s favor, the motion was granted. UNC was enjoined from disclosing his identity or disciplinary records “during the pendency of this lawsuit or until further Order of this Court.” Of course, we have updated our Title IX Lawsuits Database with this decision.