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Doe v. Baum

United States District Court, E.D. Michigan, Southern Division

January 5, 2017

JOHN DOE, Plaintiff,
v.
DAVID H. BAUM, SUSAN PRITZEL, TABITHA BENTLEY, E. ROYSTER HARPER, NADIA BAZZY, ERIK WESSEL, UNIVERSITY OF MICHIGAN, and BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN, Defendants.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION AND RENEWED MOTION FOR PRELIMINARY INJUNCTION AND MOTIONS FOR EVIDENTIARY HEARING, AND GRANTING DEFENDANTS' MOTION TO DISMISS

          DAVID M. LAWSON, UNITED STATES DISTRICT JUDGE

         Plaintiff John Doe alleges in an amended complaint that he agreed under duress to withdraw from the University of Michigan with only one semester left to complete his degree, after he was found to have violated the school's Policy on Sexual Misconduct by Students. An appeal board assembled by the University's Office of Student Conflict Resolution (OSCR) determined that Doe had sexual relations with a freshman when Doe should have known that she was too drunk to be able to give consent. Doe filed a seven-count amended complaint in this Court against the OSCR appeal panel members, Office of Student Affairs personnel, the University, and its Board of Regents alleging various constitutional and statutory violations that occurred during the disciplinary proceedings, and seeking damages, attorney's fees, and an order reinstating him so he can complete his degree. The plaintiff has filed motions for temporary injunctive relief and the defendants have filed a motion to dismiss. The Court heard oral argument on December 8, 2016. Because the plaintiff was afforded all the protection to which he is entitled under the Due Process Clause, and he has not stated claims based on the First Amendment, the Equal Protection Clause, or various antidiscrimination statutes for which relief can be granted, the Court will deny the motions for a temporary injunction, grant the motion to dismiss, and dismiss the case.

         I. Fact Summary

         Plaintiff Doe enrolled in the University of Michigan in September 2013. He attended six semesters at the University through April 2016, earning a cumulative GPA of 3.95. He asserts that, before the events described in the complaint, he “had an excellent reputation, had no involvement with law enforcement, and was never disciplined by a school or employer.” In January 2016, a female student filed a complaint with the University's Office of Institutional Equity. Her complaint stated that Doe sexually assaulted her by, among other things, manipulating her into performing oral sex on him, without her consent, after she became drunk at a party.

         Christina Kline, an investigator with the University's Office of Institutional Equity (OIE), conducted a three-month investigation and interviewed 23 witnesses about the event, with the goal of determining whether the complainant was “incapacitated” at the time of the sexual contact, such that she could not, according to the University's policy, give valid consent to engage in the sex acts that occurred. On April 15, 2016, Investigator Kline issued a written report in which she concluded that the evidence she found did not show by a preponderance that Doe had engaged in any unwanted sexual activity with the complainant. The investigator also concluded that there was insufficient evidence to support a finding that the complainant was “incapacitated” and unable to give valid consent to the sexual contact that did occur.

         The complainant appealed Investigator Kline's findings to the University's Office of Student Conflict Resolution, which, according to University policy, can engage in a limited scope review of sexual assault complaints resolved by the OIE. One of the grounds on which an OIE finding may be reversed is where the review panel determines that a “review of all available and relevant information indicates that the evidence clearly does not support the finding(s) and provides firm and definite support for modifying the original finding(s).” On May 25, 2016, the review panel issued a decision in which the panel observed that the OIE investigator had performed a “fair and thorough investigation, ” but the panel also concluded that the finding of no violation clearly was not supported by the information gathered in the investigation.

         Doe contends that the review panel's decision was procedurally flawed and violated his due process rights because (1) the definition of “incapacitated” that was applied during the investigation and review of his case (later revised in a new policy effective July 2016) is “unconstitutionally vague”; (2) the review panel improperly conducted a “de novo review” of the record, rather than properly applying the “clearly erroneous” standard of review called for under the appeal policy; and (3) the review panel selectively considered only evidence that supported their reversal of the OIE investigator's findings, while ignoring other evidence in the record that the OIE investigator relied upon in reaching her conclusion that no violation had been established. Doe also contends that the review panel misconstrued or misstated comments in certain witness statements and relied upon “findings” supported only by speculation about the complainant's level of intoxication at the time of the events, rather than any information in the record or any scientific or medical basis. Doe also alleges that the review panel exhibited gender bias in favor of the female complainant by accepting as true all of the information supporting her account, but rejecting all information that supported the male respondent's account.

         Finally, Doe alleges that one of the review panel members, defendant David Baum, was biased in favor of the complainant, due to his personal and professional relationship with Sarah Prescott, a partner in the law firm that represented the complainant in the appeal proceedings, and also with Ms. Prescott's spouse, J.J. Prescott, who is a tenured professor on the University's law school faculty. Doe asked for a reconsideration of the appeal by a different panel because of the conflict, but the University refused to reconsider or set aside the panel's decision.

         On June 22, 2016, Doe was informed by University officials that if he, the complainant, and the officials could not reach an agreement as to a penalty for the policy violation, then a review officer would determine an appropriate penalty, which likely would be expulsion. But the University informed Doe that if he agreed to accept “permanent voluntary separation” as a penalty, then his transcript would not indicate that he was expelled for violating the sexual misconduct policy. Doe initially hesitated and submitted a response in which he “agreed” to leave the University voluntarily, but also stated that he felt he had been “forced to withdraw” under threat of being expelled and having his permanent transcript marred by a sexual misconduct violation. The University replied that it construed the response as an objection to the penalty and not an agreement. Doe then submitted a second statement of consent to the penalty, without the previously-stated qualification.

         Notwithstanding the “agreed” resolution of the disciplinary complaint, Doe filed a complaint in this Court on September 1, 2016, seeking judicial review of the disciplinary proceedings and declaratory and injunctive relief absolving him of the misconduct allegations and commanding the University to allow him to enroll for classes and complete his degree. Doe originally sued several individual school officials who participated in the disciplinary proceedings. He later filed an amended complaint, which added as parties the University and its Board of Regents. The amended complaint raises claims that (1) the applicable definition of “incapacitated” in the University's sexual misconduct policy (which since has been revised) is “void for vagueness” (Count I); (2) the appeal process deprived Doe of his right to procedural due process because he had no meaningful opportunity for a fair hearing and review of his case by the appeal panel (Count II); (3) the University violated his rights under the First Amendment by denying him the opportunity to set forth his “objections” in his response to the penalty proposal (Count III); (4) the appeal panel discriminated against him on the basis of his sex, contrary to Title IX, by refusing fully and fairly to consider his side of the story (Count IV); and (5) the University's policy regarding sexual misconduct appeals had a disparate impact on Doe based on his sex, because students accused of sexual misconduct are not allowed to have an oral hearing before the appeal board, to pose questions to the complainant on the record, or to have certain other privileges inherent in a live hearing (Count V). The complaint also includes trailing claims for gender discrimination under Michigan's Elliot-Larsen Civil Rights Act (Counts VI and VII), on the same premises advanced in Counts IV and V.

         II. Motion to Dismiss

         In their motion, the defendants argue that they are entitled to dismissal under Federal Rule of Civil Procedure 12(b)(6) because all of the individual defendants are entitled to qualified immunity, and defendants Bentley, Pritzel, and Baum are entitled to absolute “quasi-judicial” immunity. They also contend that the Due Process claims in Counts I and II must be dismissed because the plaintiff has not identified any protected liberty or property interest. And they assert that the definition of “incapacitated” under the University's policy is not unconstitutionally vague. Looking to the procedures as described in the amended complaint, the defendants argue that the plaintiff was afforded ample notice and an opportunity to be heard in the course of the OIE investigation, and that his allegations are insufficient to raise the specter of bias against defendant Baum. The defendants dispute the claimed violation of the First Amendment because no pleaded facts establish that Doe was compelled to make any statement about the disciplinary proceedings, and through counsel he represented that he entered into the agreement to withdraw from the University voluntarily. The defendants contend that the gender discrimination claims in Counts IV and V are defective as a matter of law because (1) the plaintiff has not alleged any facts to show that gender bias motivated the panel to render its decision against him, other than the fact the plaintiff is male and the complainant is female; and (2) claims of disparate impact are not cognizable under Title IX where the policy challenged is facially neutral with respect to gender. They attack the state law claims on similar grounds. Finally, the defendants argue that the plaintiff has waived any right to seek reinstatement to the University, because he voluntarily agreed to withdraw his enrollment, as part of the penalty agreement to which he freely consented.

         “The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true.” Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)). Under Rule 12(b)(6), the complaint is viewed in the light most favorable to the plaintiff, the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the plaintiff. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). “[A] judge may not grant a Rule 12(b)(6) motion based on a disbelief of a complaint's factual allegations.” Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 228-29 (6th Cir. 1997) (quoting Columbia Nat'l Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “However, while liberal, this standard of review does require more than the bare assertion of legal conclusions.” Tatum, 58 F.3d at 1109; Tackett v. M & G Polymers, USA, L.L.C., 561 F.3d 478, 488 (6th Cir. 2009). “To survive a motion to dismiss, [a plaintiff] must plead ‘enough factual matter' that, when taken as true, ‘state[s] a claim to relief that is plausible on its face.' Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007). Plausibility requires showing more than the ‘sheer possibility' of relief but less than a ‘probab[le]' entitlement to relief. Ashcroft v. Iqbal, [556 U.S. 662');">556 U.S. 662, 678] (2009).” Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

         Under the new regime ushered in by Twombly and Iqbal, pleaded facts must be accepted by the reviewing court but conclusions may not be unless they are plausibly supported by the pleaded facts. “[B]are assertions, ” such as those that “amount to nothing more than a ‘formulaic recitation of the elements'” of a claim, can provide context to the factual allegations, but are insufficient to state a claim for relief and must be disregarded. Iqbal, 556 U.S. at 681 (quoting Twombly, 550 U.S. at 555). However, as long as a court can “‘draw the reasonable inference that the defendant is liable for the misconduct alleged, ' a plaintiff's claims must survive a motion to dismiss.” Fabian, 628 F.3d at 281 (quoting Iqbal, 556 U.S. at 678).

         Consideration of a motion to dismiss under Rule 12(b)(6) is confined to the pleadings. Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008). Assessment of the facial sufficiency of the complaint ordinarily must be undertaken without resort to matters outside the pleadings. Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). However, “documents attached to the pleadings become part of the pleadings and may be considered on a motion to dismiss.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007) (citing Fed.R.Civ.P. 10(c)); see also Koubriti v. Convertino, 593 F.3d 459, 463 n.1 (6th Cir. 2010). Even if a document is not attached to a complaint or answer, “when a document is referred to in the pleadings and is integral to the claims, it may be considered without converting a motion to dismiss into one for summary judgment.” Commercial Money Ctr., 508 F.3d at 335-36. If the plaintiff does not directly refer to a document in the pleadings, but that document governs the plaintiff's rights and is necessarily incorporated by reference, then the motion need not be converted to one for summary judgment. Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (holding that plan documents could be considered without converting the motion to one for summary judgment even though the complaint referred only to the “plan” and not its associated documents). In addition, “a court may consider matters of public record in deciding a motion to dismiss without converting the motion to one for summary judgment.” Northville Downs v. Granholm, 622 F.3d 579 (6th Cir. 2010) (citing Commercial Money Ctr., Inc., 508 F.3d at 335-36).

         The relevant portions of the administrative record are proper materials for the Court to consider on the motion to dismiss in this case, even though the administrative record was attached by the parties only to their motion papers and not to the original or amended complaint. See Doe v. Ohio State Univ., No. 15-2830, 2016 WL 6581843, at *3 (S.D. Ohio Nov. 7, 2016). The focus of the claims in this case necessarily will be the constitutional propriety of the procedures followed and the findings and conclusions expressed by the administrative entity. Those findings are discussed in the amended complaint, and the parts not quoted still are “integral to Doe's claims and therefore appropriate to consider.” Ibid.

         A. Immunity

         The doctrine of qualified immunity will protect government officials from having to defend their discretionary decisions in a civil damage action, unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Baynes v. Cleland, 799 F.3d 600, 609 (6th Cir. 2015) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 538-39 (6th Cir. 2008)). Evaluating that defense requires two steps: first, the court must determine whether the plaintiff has made out a constitutional violation; and second, the plaintiff must show that the constitutional right was clearly established at the time of the violation. Id. at 609-10 (quoting Miller v. Sanilac Cnty., 606 F.3d 240, 247 (6th Cir. 2010)). However, the Court need not adopt a “rigid order of battle, ” and may decide these elements in either sequence. Pearson v. Callahan, 555 U.S. 223, 235 (2009) (quoting Brosseau v. Haugen, 543 U.S. 194, 201-02 (2004) (Breyer, J., concurring)). Because the qualified immunity argument is answered by the Court's determination of the merits of the plaintiff's claims, it need not be discussed further.

         Individual defendants Bentley, Pritzel, and Baum also maintain that they are entitled to absolute quasi-judicial immunity as members of the adjudicatory appeal panel. They are not. In Butz v. Economou, 438 U.S. 478 (1978), on which the defendants principally rely, the Supreme Court held that certain federal administrative law judges, who operate under all the formal constraints and protections of the Administrative Procedures Act, are entitled to absolute quasi-judicial immunity when performing adjudicatory functions. However, in Wood v. Strickland, 420 U.S. 308 (1975), the Court held that school board officials reviewing disciplinary complaints and deciding whether to expel students were not entitled to absolute immunity when acting in that adjudicatory capacity. Id. at 320 (“[A]bsolute immunity would not be justified since it would not sufficiently increase the ability of school officials to exercise their discretion in a forthright manner to warrant the absence of a remedy for students subjected to intentional or otherwise inexcusable deprivations.”). With such clear contrary precedent from the nation's highest court, one wonders why these defendants advanced this argument. In all events, defendants Bentley, Pritzel, and Baum are not entitled to absolute immunity from Doe's lawsuit.

         B. Waiver

         The defendants' position that the plaintiff “waived” his right to challenge his expulsion or seek reinstatement to the university is groundless. “‘[W]aiver is the intentional relinquishment or abandonment of a known right.'” United States v. Doxey, 833 F.3d 692, 702 (6th Cir. 2016) (quoting United States v. Olano, 507 U.S. 725, 733 (1993) (internal quotations omitted)). Nothing in the record suggests that the plaintiff intentionally relinquished or abandoned his resistance to the appeal panel's decision to discipline him, notwithstanding the plaintiff's tactical decision - for reasons that are readily apparent - to agree to a negotiated penalty of “voluntary withdrawal” in lieu of a formal expulsion. The plaintiff's election of the “lesser evil” of voluntary withdrawal after the disciplinary proceedings concluded and his fate was sealed does not in any way indicate his concession to abandon any challenge to the correctness of that decision in the first instance, particularly where, in his initial response to the penalty proposal, the plaintiff expressly stated his view that he was “forced” to withdraw under threat of certain expulsion.

         C. Due Process Claims

         Via 42 U.S.C. § 1983, Doe alleges that the defendants' actions violated his rights under the Fourteenth Amendment's Due Process Clause. There is no dispute that the defendants were acting under color of state law when they effectively expelled Doe from a state-run university; that element of the plaintiff's § 1983 claim is satisfied. See Baynes, 799 F.3d at 607. Doe also must show that his rights under the Constitution or federal laws have been violated. Ibid. (citing Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)).

         1. Protected Interest

         Doe alleges violations of his right to procedural due process, and also, although not in explicit terms, the substantive aspect of the Clause as well. “‘Procedural and substantive due process claims are examined under a two-part analysis. First, the Court must determine whether the interest at stake is a protected liberty or property interest under the Fourteenth Amendment.” Puckett v. Lexington-Fayette Urban County Gov't, 833 F.3d 590, 604-05 (6th Cir. 2016) (citations omitted). The defendants argue that the plaintiff has not identified any property or liberty interest that is protected by the Due Process Clause. Like their absolute immunity contention, however, this argument - that the plaintiff had no due-process-protected interest in his reputation or continued enrollment at the University - is a non-starter. The Sixth Circuit plainly has “held that the Due Process Clause is implicated by higher education disciplinary decisions.” Flaim v. Med. College of Ohio, 418 F.3d 629, 633 (6th Cir. 2005) (citing Goss v. Lopez, 419 U.S. 565 (1975); Board of Regents v. Roth, 408 U.S. 564 (1972)); see also Doe v. Cummins, ___ F. App'x ___, 2016 WL 7093996, at *7 (6th Cir. Dec. 6, 2016) (recognizing that due process “protections apply to higher education disciplinary decisions”).

         The cases on which the defendants rely are readily distinguishable because those holdings rejected substantive - not procedural - due process claims, and only in the context of academic dismissals, not charges of misconduct. See Rogers v. Tennessee Bd. of Regents, 273 F. App'x 458, 463 (6th Cir. 2008) (noting that the Sixth Circuit has “rejected the notion that substantive due process protects a medical student's interest in continuing education. . . . This court has, albeit in an unpublished opinion, applied the holding of Bell in a subsequent decision denying a substantive due process claim in the context of an academic dismissal.”) (citing Bell v. Ohio State University, 351 F.3d 240 (6th Cir. 2003) (emphasis added)). Doe's interest in finishing his degree program and preserving his reputation against the claimed violation of the University's sexual misconduct policy qualifies for procedural due process protection.

         2. Procedural Due Process Claims

         In addition to identifying a protected interest, a plaintiff claiming a violation of the Due Process Clause by a state actor must plead that he was not afforded timely and adequate process under law. Waeschle v. Dragovic, 576 F.3d 539, 544 (6th Cir. 2009). Once it is determined that the Due Process Clause applies, as it does in “higher education disciplinary decisions, ” Flaim, 418 F.3d at 633; Roth, 408 U.S. 564), “‘the question remains what process is due.'” Id. at 633-34 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). “The amount of process due will vary according to the facts of each case and is evaluated largely within the framework laid out by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976).” The Mathews framework requires the Court to assess (1) the nature of the interest the plaintiff asserts; (2) the risk that the procedure employed will lead to an erroneous result, and the value that alternative or additional procedures would bring; and (3) the burden on the government of those additional or different procedures. Mathews, 424 U.S. at 335.

         As the court of appeals has noted, “‘[a] university is not a court of law, and it is neither practical nor desirable it be one. Yet, a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing. In weighing this tension, the law seeks the middle ground.'” Flaim, 418 F.3d at 635 n.1 (quoting Gomes v. Univ. of Maine Sys., 365 F.Supp.2d 6, 16 (D. Me. 2005)). Ultimately, the “Court's main concern [must focus on] ensuring the presence of ‘fundamentally fair procedures to determine whether the misconduct has occurred.'” Id. at 634 (quoting Goss, 419 U.S. at 574).

         Fundamental fairness requires, at a minimum, notice and an “opportunity for hearing appropriate to the nature of the case.” Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 296 (6th Cir. 2006) (citing Roth, 408 U.S. at 570) (quotations omitted). In disciplinary expulsion cases, “[t]he hearing, whether formal, informal, live or not, must be meaningful and must provide the accused with the opportunity to ‘respond, explain, and defend.'” Flaim, 418 F.3d at 635-37 (quotations and citations omitted). However, “hearings need not be open to the public, . . . neither rules of evidence nor rules of civil or criminal procedure need be applied, and witnesses need not be placed under oath.” Ibid. Nor is “a full-dress judicial hearing, with the right to cross-examine witnesses, . . . required.” Id. at 637 n.2 (quoting Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961)). But the accused student must have “the right to respond and defend, which will generally include the opportunity to make a statement and present evidence.” Id. at 636.

         Doe does not criticize the notice given him by the OIE. His procedural due process claim is predicated on the following allegations: (1) the review panel improperly conducted a “de novo review” of the record, rather than applying the “clearly erroneous” standard of review called for under the policy; (2) the definition of “incapacitated” that was applied during investigation and review of his case is “unconstitutionally vague”; (3) Doe was not given an opportunity to appear personally before the appeal panel or confront or cross-examine the complainant or other witnesses; and (4) at least one member of the appeal panel had a conflict of interest that rendered him biased.

         a. Appeal Panel's Standard of Review

         After conducting a thorough - even exhaustive - investigation of the incident, Investigator Kline wrote that “there is insufficient evidence to conclude that the Respondent acted in violation of the Policy on January 16, 2016 when he subjected the Complainant to unwanted sexual activity.” On review, the appeal panel concluded that there was “no material deviation from the procedures” applicable to the original investigation. It also found that there was “not any new and relevant information that was unavailable, with reasonable diligence and effort, at the time of the investigation.” However, the panel found that its “review of all available and relevant information indicates that the evidence clearly does not support the OIE investigator's conclusion and provides firm and definite support for modifying the original finding.” This latter conclusion, so the parties seem to agree, appears to paraphrase accurately the University's policy stating the grounds for reversal of investigative findings by an appeal panel. However, Doe insists that the appeal panel actually gave fresh review to the evidence and afforded no deference to the investigator, in violation of the University's Policy.

         But even if the appeal panel applied a review standard not prescribed by the University's procedures, that alone would not establish a due process violation. The Sixth Circuit recently rejected a similar argument in a school expulsion case. Doe v. Cummins, 2016 WL 7093996, at *7 n.2. (“Given that the Constitution - and the case law interpreting it - mandates what procedures are constitutionally required following the deprivation of a property or liberty interest, and not internal school rules or policies, this argument clearly lacks merit.”). That court (and others) has held consistently that the violation of school policies or state law does not create a cognizable due-process claim in federal court. Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 570 (6th Cir. 2011); see also Hall v. Med. Coll. of Ohio, 742 F.2d 299, 309 (6th Cir. 1984) (holding that a school's violation of its own internal rules is of no constitutional moment); Levitt v. Univ. of Texas at El Paso, 759 F.2d 1224, 1230 (5th Cir. 1985) (“There is not a violation of due process every time a university or other government entity violates its own rules.”); Doe v. Univ. of Cincinnati, 173 F.Supp.3d 586, 603 (S.D. Ohio 2016) (holding that “an allegation that the disciplinary board violated its own policies and procedures does not state a claim for a due process violation”). The claimed deviation from the University's appeal procedure here does not state a viable claim for denial of procedural due process.

         b. Vagueness

         Doe's vagueness argument attacks the language of the school's “Policy on Sexual Misconduct by Students.” The parties have not submitted with their pending motions a verbatim copy of that policy, but they apparently do not dispute that the appeal panel accurately summarized the operative provisions in its decision, as follows:

Under the [Sexual Misconduct] Policy, “sexual assault” is defined in relevant part as “[u]nwanted or unwelcome touching of a sexual nature, including . . . fondling, oral sex, . . . or vaginal intercourse . . . that occurs without valid consent.” “Consent” is defined in relevant part as “[c]lear and unambiguous agreement, expressed in mutually understandable words or actions, to engage in a particular activity. . . . Consent cannot be validly given by a person who is incapacitated. For purposes of this policy, the issue is whether Respondent knew, or should have known, that the activity in question cannot be consensual.” “Incapacitated” is defined as “[l]acking the physical and/or mental ability to make informed, rational judgments. This may have a variety of causes, including, but not limited to, being asleep or unconscious, having consumed or taken drugs, or experiencing blackouts or flashbacks.”

         Plf.'s Renewed Mot. for Prelim, Inj., Ex. D, Appeals Board Report dated May 25, 2016 at 2. Doe's main criticism is aimed at the term “incapacitated, ” because, he contends, the term is so loose that it allowed the appeal panel to project its own conception of what the term should mean.

         “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc., ___ U.S. ___, 132 S.Ct. 2307, 2317 (2012). “This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause . . . . It requires the invalidation of laws that are impermissibly vague.” Ibid. “A . . . punishment fails to comply with due process if the statute or regulation under which it is obtained ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.'” Ibid. (quoting United States v. Williams, 553 U.S. 285, 304 (2008)).

         “As [the Supreme Court] has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved.” Ibid. However, “[g]iven [a] school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (“The school disciplinary rule proscribing ‘obscene' language and the prespeech admonitions of teachers gave adequate warning to Fraser that his lewd speech could subject him to sanctions.”).

         The language of the Sexual Misconduct Policy is not unconstitutionally vague, because a person of ordinary intelligence certainly can understand what is meant by the term “incapacitated, ” where it is defined in the policy itself to mean “[l]acking the physical and/or mental ability to make informed, rational judgments.” Doe contends that this definition offered insufficient guidance to the appeal panel and permitted the members to act with unbridled discretion by inventing their own ad hoc application of the policy, when they concluded that the plaintiff “should have known” that the complainant was incapacitated, despite the lack of her display of any specific or enumerated “indicators of incapacitation.” But the Supreme Court in Bethel School District held that such precision is not required. A regulation “need not define every term to survive a vagueness challenge.” Brown v. Chicago Bd. of Educ., 824 F.3d 713, 716-17 (7th Cir. 2016). Here, regardless of what criteria may be employed in order to prove the fact in question, it is plain what fact must be proved: that the complainant lacked the physical or mental capacity to make informed, rational judgments.

         The appeal panel concluded that the complainant lacked the capacity to make informed rational judgments because (1) she had consumed a prodigious amount of alcohol during the approximately one to two hours preceding the sexual encounter; (2) by her own account she was unaware of and unable consciously to perceive, participate in, object to, or give consent to, the sexual activity that ensued; and (3) the apparent signs of intoxication that the complainant described, which were corroborated by at least three other witnesses who observed her for an extended period that night, reasonably should have been perceived by Doe as well. As discussed further below, there was ample testimony in the record to support those conclusions. And the appeal panel placed substantial weight on the fact - which the plaintiff entirely avoids in his pleadings and his briefing - that he admitted to police that the complainant's account of the encounter was essentially entirely correct, but for the fact that he never heard her say “no sex.”

         Doe has not stated a claim in his amended complaint based on the alleged vagueness of the Policy.

         c. Personal Appearance, Confrontation, and Cross-examination

         Doe contends that he was deprived of the privileges of a live hearing, cross-examination of witnesses, and oral argument before the panel. However, he has not pointed to any information favorable to his defense that he was prevented from presenting, and he has not suggested any substantial way in which his defense was prejudiced by the lack of those procedural devices. Doe appears to assert that he was deprived of a fair hearing mainly because the panel ultimately was unpersuaded by his side of the story, despite the exhaustive and uninhibited presentation that he was allowed to make in his defense. Moreover, he has not identified any information in the record that he contends was not submitted to the panel by him, or that he would have submitted if he had received any more process than he actually had.

         The University never convened any live hearing with witnesses present, and there apparently was no hearing before the appeal panel. But Doe did have a hearing, with some degree of formality, during the two live interviews that the investigator conducted. During those interviews the investigator gave verbal and written explanations of the charges and the sexual misconduct policy that Doe was accused of violating. She explained the process that would be followed during the investigation. The investigator made a careful and complete written account of those interviews, and of her contact with all of the other witnesses, which was included in her report, along with documentary exhibits and briefing submitted by the parties that were included as attachments. Doe's attorney was present and advised him, at least during the second interview. He was allowed multiple opportunities before, during, and after both appearances to ask questions, make verbal comments and arguments, and present additional information and clarifications as he saw fit. He was provided copies of the complainant's statement, police reports obtained by the investigator, and the investigator's draft report, and he was allowed to submit additional information and comments in response to all of that evidence. His feedback and clarifications were incorporated by the investigator into her final report.

         In response to the appeal, the plaintiff submitted an eight-page, detailed, point-by-point rebuttal of the complainant's grounds for the appeal, which was prepared and submitted by his counsel. The written decision of the appeal panel indicates that it received and considered the written submissions of both parties.

         The Sixth Circuit has noted that “‘[t]he right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings.” Flaim, 418 F.3d at 641 (quoting Winnick v. Manning, 460 F.2d 545, 549 (2d Cir. 1972)). However, in some instances, such as when a decision may turn on resolution of conflicting versions and witness credibility must be assessed, “cross-examination of witnesses might [be] essential to a fair hearing.” Ibid. But the alleged procedural infirmities in this disciplinary proceedings are immaterial where, as here, Doe has admitted all of the essential facts that precipitated the adverse decision. Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1242 (10th Cir. 2001) (“Mr. Watson admitted to the board that he assaulted his roommate and that he did so because his roommate was Hispanic and Catholic. Because Mr. Watson candidly admitted his guilt, Mr. Watson was not prejudiced by a lack of notice.”); Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1083 (5th Cir. 1984) (“Clearly there was substantial evidence to support the district court's finding that Keough admitted the charges and therefore his suspension did not result from a procedural due process deprivation. The district court did not err in finding that a procedural due process violation, if any, did not cause injury to Keough.”); Black Coal. v. Portland Sch. Dist. No. 1, 484 F.2d 1040, 1045 (9th Cir. 1973) (“Lockridge admitted all of the essential facts which it is the purpose of a due process hearing to establish. There being no reason to order defendant to reopen Lockridge's case and hold a new hearing, the district court properly declined to do so.”).

         Doe has not pleaded any facts that establish a risk that the procedure employed led to an erroneous result, or demonstrated the value that alternative or additional procedures would bring. Mathews, 424 U.S. at 335.

         d. Bias

         Doe also alleges that the relationship of panel member David Baum to the complainant's lawyer's law partner infected the proceedings with illegal bias. It is beyond debate that, “[t]o insure ‘fundamentally fair procedures, ' school officials responsible for deciding whether to exclude a student from school must be impartial.” Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 567 (6th Cir. 2011). “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 136 (1955).

         The requirement of a fair and unbiased adjudicator applies with equal force to both administrative and judicial proceedings. Gibson v. Berryhill, 411 U.S. 564, 579 (1973). However, “[i]n the university setting, a disciplinary committee is entitled to a presumption of honesty and integrity, absent a showing of actual bias.” McMillan v. Hunt, 968 F.2d 1215, 1992 WL 168827, at *2 (6th Cir. 1992) (citing Ikpeazu v. Univ. of Nebraska, 775 F.2d 250, 254 (8th Cir. 1985) (“With respect to the claim of bias, we observe that the committee members are entitled to a presumption of honesty and integrity unless actual bias, such as personal animosity, illegal prejudice, or a personal or financial stake in the outcome can be proven.”)); see also Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 496-97 (1976) (“A showing that the Board was ‘involved' in the events preceding this decision, in light of the important interest in leaving with the Board the power given by the state legislature, is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmaking power.”). “To survive a motion to dismiss, [the plaintiff] needs to allege specific, non-conclusory facts that if taken as true show actual bias.” Doe v. Ohio State Univ., 2016 WL 6581843, at *8.

         Doe alleged in his amended complaint that defendant Baum “knew and had worked with both Sarah Prescott and Professor [J.J.] Prescott, ” and that Baum “was aware that Ms. Prescott had recently started her own law firm and he knew her firm represented the Complainant.” Doe contends that this relationship gave rise to an actual conflict of interest, which Baum failed or neglected to disclose, because (1) Baum “depends on Michigan Law School faculty for support in his job performance, which in turn impacts his continued employment with the University of Michigan”; (2) Baum's “performance is evaluated in part through faculty review”; and (3) “it is in Baum's economic and personal interest to satisfy and gain favor of the tenured faculty, including Professor Prescott.” Even if true, none of those alleged ...


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