Seattle Attorneys Blog
The Fourth Circuit recently considered sovereign and qualified immunity in a case arising from a university’s investigatory and disciplinary procedures of a complaint of sexual misconduct against a student.
According to the court’s opinion, the plaintiff was a student at a North Carolina university when four female students submitted a joint complaint to the university alleging he committed sexual misconduct.
He was notified about the complaint in May 2021 and placed on interim suspension. His scholarship was suspended indefinitely. The plaintiff appealed, but the appeal was denied.
In June 2021, two of complainants, identified as Roe 1 and Roe 2, withdrew their complaints, but the university did not dismiss the related disciplinary charges. The alleged events related to those two students occurred on campus and were investigated under university’s Title IX policy.
The events related to the other two students, identified as Roe 3 and Roe 4, occurred off campus and were investigated under the university’s general sexual harassment policy.
The Title IX policy and the sexual harassment policy required an investigation, a written investigation report, and an opportunity for both parties to respond to the evidence before the report was finalized. The Title IX policy, however required a live hearing before a finding of responsibility. The sexual harassment policy provided that the final report would include “investigative finding[s],” and either party could request a hearing if there was a finding a policy violation occurred.
Investigators interviewed the plaintiff, the four complainants, and a number of witnesses. The plaintiff was told the evidence for each investigation would be separated, but the reports referenced the other investigations. The investigative findings in the reports issued under the general sexual harassment policy included a finding the plaintiff was responsible “for engaging in sexual assault or violence” in the Roe 3 matter and “for two counts of sexual assault” in the Roe 4 matter.
There were ultimately separate hearings on all four matters before a three-person panel and a nonvoting chair. The plaintiff was not responsible for the allegations related to Roe 2 and Roe 3.
At the start of the investigation of the Roe 1 matter, the plaintiff was informed the alleged incident happened “[o]n or about November 19, 2020.” He gathered evidence based on that date, but the complainant’s counsel claimed at the hearing it occurred in early November. The hearing panel met privately and then told him they would consider whether there was nonconsensual sexual contact on November 12 or November 13.
The complainant requested a break during her cross-examination by the plaintiff’s attorney. She then left and the hearing panel told the plaintiff her counsel would be allowed to answer questions on her behalf. The plaintiff was found responsible for nonconsensual sexual intercourse while the complainant was incapacitated. The hearing panel suspended the plaintiff for a school year.
Roe 4 did not appear at her hearing and the chair would not allow the plaintiff to present evidence impeaching her credibility. None of the witnesses identified in her complaint appeared either. The plaintiff was found “responsible for engaging in sexual assault or sexual violence.” The panel permanently expelled him from the entire university system.
The plaintiff appealed to the university, but his appeals were denied.
The plaintiff then filed suit against the university, the university system, the Board of Trustees, the Board of Governors, and several university employees. He asserted § 1983 claims for violation of his Fourteenth Amendment due process rights, a Title IX claim for an erroneous disciplinary outcome, and various state law claims. He sought not only monetary damages, but injunctive relief vacating the findings of responsibility, expunging his disciplinary record, and readmitting him to the university as a student in good standing.
The university moved to dismiss, and the district court largely denied those motions. The court rejected the defendants’ arguments of sovereign and qualified immunity for the federal claims. The court dismissed some of the plaintiff’s state law claims, but allowed others to proceed.
The defendants appealed.
Eleventh Amendment
The university defendants argued the Eleventh Amendment barred the plaintiff’s due process and state law claims. The Eleventh Amendment generally protects states from being sued in federal court.
The district court determined the university defendants had not established that they were entitled to sovereign immunity because their filings did not address the distinction between state agencies and “bod[ies] politic and corporate.” Generally, state agencies are protected by the Eleventh Amendment, but bodies politic and corporate are not.
The university defendants argued on appeal that the denial of sovereign immunity was contrary to precedent.
The Fourth Circuit determined the district court erred in denying the university defendants’ motion to dismiss based on sovereign immunity. The court noted it has previously held that defendant universities cannot rely on the court’s determination as to other public universities and that each state university must be evaluated, but it had previously determined that divisions of the defendant university system were entitled to sovereign immunity. The Fourth District noted that the “defendants were entitled to rely on . . . precedent.”
Qualified Immunity
The employee defendants argued qualified immunity barred the plaintiff’s due process claim for damages against them. Qualified immunity protects government officials from personal liability for damages under § 1983 when performing discretionary functions if their conduct does not violate statutory or constitutional rights that a reasonable person would have known. The right must be clear at the time of the official’s conduct.
Courts consider whether there is a violation of a constitutional right and whether the right was “clearly established” when the alleged misconduct occurred. Sheppard v. Visitors of Va. State Univ.
The plaintiff argued his procedural due process rights were violated a number of ways. The “foremost deficiency” he alleged, according to the court, was the denial of the right to cross-examine the complainants. The district court also identified these allegations as “serious procedural flaws” in the hearings.
The Fourth Circuit noted it had not held that due process requires cross-examination in university disciplinary hearings. It therefore could not find that there was a clearly established right to cross-examination when the hearings occurred that would deny the employee defendants the right to qualified immunity.
The Fourth Circuit did hold, however, that the cross-examination opportunity provided to the plaintiff was “constitutionally deficient.” The court stated an accused student must be given the opportunity for a “meaningful hearing” and cross-examination would “materially assist” higher education institutions in ensuring students receive a meaningful hearing, especially when resolution is based on credibility determinations and there is potential for severe sanctions.
In this case, the potential sanctions were severe. The plaintiff was not only expelled from the university, but from every state-funded public university within the university system. His record would reflect the findings and the expulsion.
The Fourth Circuit did not agree that the other alleged procedural defects were constitutional violations.
The court held the due process claims for damages against the employee defendants had to be dismissed because they were entitled to qualified immunity.
Injunctive Relief
There is an exception to sovereign immunity that allows a party to seek prospective equitable relief to prevent ongoing federal law violations. The court must consider if there is an allegation of an ongoing violation of federal law and whether the complaint seeks prospective relief. The district court had not considered the exception because it had determined the defendants were not entitled to sovereign immunity.
The plaintiff claimed a property interest in continued enrollment with the university and a liberty interest in his reputation. The Fourth Circuit noted that it had not actually decided a university student has a property right in continued enrollment in a university. It also had not specifically found a student has a liberty interest implicated in a disciplinary proceeding.
The Fourth Circuit held, however, that the plaintiff alleged a protected liberty interest in his reputation. The court agreed that an erroneous record of permanent expulsion for sexual misconduct causes ongoing injury. It therefore found no error in the district court not dismissing the claims for injunctive relief against the university employees.
The Fourth Circuit reversed the denial of the defendants’ motions to dismiss the claims against the university institutions and the § 1983 due process claim against the employee defendants sued in the personal capacities. It affirmed the portion of the judgment allowing the plaintiff’s due process claim for prospective equitable relief to continue against the employees sued in their official capacities.
Although many of the plaintiff’s claims for damages were dismissed, he will be allowed to proceed with his claims for injunctive relief. Additionally, the Fourth Circuit recognized the importance of cross-examination and the damage that can result from a university finding a student responsible for sexual misconduct.
If you are facing sexual harassment or sexual misconduct allegations at school, a knowledgeable Washington Title IX defense attorney can help protect your rights during the investigation and any disciplinary proceedings. Set up a consultation with Blair & Kim, PLLC, at (206) 622-6562.