John Doe, I v. Daniel Cummins

NOT RECOMMENDED FOR PUBLICATION

File Name: 16a0656n.06

No. 16-3334

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Dec 06, 2016

JOHN DOE I and JOHN DOE II, ) DEBORAH S. HUNT, Clerk

)

Plaintiffs-Appellants, )

) ON APPEAL FROM THE

v. ) UNITED STATES DISTRICT

) COURT FOR THE SOUTHERN

DANIEL CUMMINS, DENINE ROCCO, DEBRA ) DISTRICT OF OHIO

MERCHANT, and UNIVERSITY OF CINCINNATI, )

)

Defendants-Appellees. )

BEFORE: DAUGHTREY, GIBBONS, and COOK, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. John Doe I and John Doe II were both

students at the University of Cincinnati (“UC”). In unrelated incidents in March 2014, each was

charged with violating UC’s Code of Conduct for allegedly sexually assaulting female students.

Following an investigation and hearing conducted by UC, both Doe I and Doe II were found

“responsible” for the respective allegations against them. Doe I was suspended from UC for

three years. Doe II received disciplinary probation and was required to write a research paper.

Doe I and Doe II filed suit against UC and various school administrators (“the individual

defendants”) under 42 U.S.C. § 1983, alleging that UC’s disciplinary process did not afford them

due process as required by the Fourteenth Amendment. Doe I and Doe II also claimed that they

were subject to gender discrimination in violation of Title IX of the Education Amendments of

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Doe I, et al. v. Cummins, et al.

1972. The district court granted defendants’ motion to dismiss on all counts. For the reasons set

forth below, we affirm the judgment of the district court.

I.

A.

The University of Cincinnati is a public university located in Cincinnati, Ohio. On April

11, 2011, the U.S. Department of Education’s Office for Civil Rights circulated a “Dear

Colleague” letter to colleges and universities around the country in an effort to provide guidance

on complying with Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C.

§§ 1681–88, in the context of sexual-assault investigations. Specifically, the letter encouraged

schools to adopt a preponderance standard of proof, allow appeals for both parties, and

“minimize the burden on the complainant” when investigating sexual-assault allegations. DE 1,

Compl., Page ID 5.

In response to the “Dear Colleague” letter, UC adopted certain policies and procedures

for investigating and adjudicating alleged Title IX violations.1 Within seven days of receiving a

complaint, a Title IX Coordinator meets with the respondent and provides notice of the

allegations, a copy of UC’s Title IX policies, and information about investigation and

disciplinary procedures. At this meeting, the respondent is provided an opportunity to give his or

her account of the facts and discuss the nature of the allegations. Within fourteen days of the

complaint being filed, the Coordinator begins interviewing witnesses and gathering relevant

evidence. The respondent is also permitted to provide any relevant evidence or witnesses.

Following this investigation, the Coordinator prepares an investigatory report summarizing his

findings. The report is then provided to both the complainant and respondent for review and

1

For the purpose of our review, we assume appellants’ description of UC’s Title IX process is true. See Logsdon v.

Hains, 492 F.3d 334, 340 (6th Cir. 2007).

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comment. The Coordinator incorporates comments from the parties and, if necessary, conducts a

follow-up investigation. During the investigation, the complainant may be provided certain

accommodations, including changes in homework, deadlines, grades, classes, and schedules.

The respondent, however, may be subject to punitive “interim measures,” including restrictions

on access to certain campus buildings. Id. at 10.

After this initial investigation, the respondent is entitled to an Administrative Review

Committee (“ARC”) hearing prior to the imposition of any discipline. The ARC is a panel made

up of UC administrators. Appellants allege that the ARC panel receives training on UC’s Code

of Conduct and protecting sexual-misconduct victims but receives no comparable training on

protecting the due-process rights of accused students.

At an ARC hearing, panel members function as a board of inquiry and apply a

preponderance-of-the-evidence standard in order to resolve the dispute. The respondent is

permitted to have an attorney present at the hearing, but the attorney may not actively participate.

Cross-examination is allowed, but only by submitting written questions to the panel members,

who then determine whether questions are relevant and whether they will be posed to the

witness. Neither party may compel witnesses to attend the ARC hearing, but hearsay evidence is

allowed. Although parties are not permitted to record the ARC hearings, each party may access

the panel’s recording of the hearing. Both parties have the right to appeal an adverse decision by

the panel.

Between 2010 and the hearings for Doe I and Doe II, the ARC panel presided over nine

cases involving sexual-misconduct allegations. The respondent was found “responsible” in each

of the eight cases where the panel’s decision was disclosed. The punishment imposed in these

cases ranged from disciplinary probation to expulsion.

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B.

On March 9, 2014, Doe I—at that time a junior at UC’s Blue Ash campus—left a party

near campus with Jane Roe I and Jane Roe II to accompany them back to their dorm room. Doe

I claimed that both Roe I and Roe II were intoxicated. Roe I claimed that she went to sleep after

returning to her dorm room but later awoke to Doe I attempting to have sexual intercourse with

her. She alleged that she told Doe I “no” and left the room. Id. at 28. Doe I then allegedly

attempted to also have sexual intercourse with Roe II while she was sleeping. Doe I continues to

deny both sexual-assault allegations.

To buttress his denial, Doe I claims that Roe I and Roe II gave several inconsistent

statements to UC administrators and UC police officers regarding the incident. For example,

Doe I alleges that Roe I gave inconsistent statements about whether she had smoked marijuana

that night and whether she had, in fact, been asleep when Doe I got into bed with her. Likewise,

Roe II allegedly gave inconsistent statements regarding her intoxication level on the night in

question and whether she passed out before or after Doe I initiated intercourse with her.

Doe I also claims that he was fully cooperative with police investigators and that the

police obtained significant evidence exonerating him, despite attempts by UC administrators to

interfere with the police investigation. For example, Doe I challenges both Roe I’s contention

that she was unaware how Doe I got into her dorm and Roe II’s claim that dormitory staff

improperly let Doe I into the building by pointing to surveillance video showing that Roe I

waited while Roe II signed Doe I into the dorm. Similarly, Doe I argues that neither Roe I nor

Roe II appear intoxicated in the surveillance video despite Roe II’s statements to the ARC panel

that she was too intoxicated to remember walking home. Doe I also points to forensic cell-phone

evidence showing that Roe I and Roe II sent text messages during the time they were allegedly

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passed out, and later joked about the case. He also argues that another female student, who was

allegedly present in the room when the assault occurred, denied witnessing anything illegal. Doe

I also believes that the crime lab’s assessment of the rape kits was consistent with his theory of

events.

Doe I claims that Daniel Cummins, UC’s Assistant Dean of Students and Director of the

Office of Judicial Affairs, instituted disciplinary proceedings against him prior to investigating

the credibility of the allegations. Doe I alleges that Cummins sent an initial letter explaining the

charges on March 12, 2014, and later interviewed him in person on March 28. Doe I alleges that

he denied the allegations at this meeting, but otherwise exercised his right to remain silent.

Doe I claims that Cummins scheduled an ARC hearing prior to interviewing any

witnesses. Although the hearing was initially scheduled for April 10, 2014, it was later

postponed until May 2, 2014. Prior to the hearing, Cummins completed an investigative report,

which concluded that Doe I had engaged in sexual activity with Roe I and Roe II without their

consent. Doe I claims that Cummins’s investigative report had several crucial omissions:

1. It did not include a review of the physical evidence obtained by UC Police.

2. It failed to include Doe I’s statements to UC Police.

3. It excluded a witness’s statement that Roe I and Roe II had been “pretty flirtatious”

with Doe I and had “basically dragged” him back to their dorm.

4. It did not include any of the physical evidence that tended to exonerate Doe I, such as

the surveillance videos and text messages.

Id. at 33–34.

Doe I also claims that the initial ARC hearing on May 2, 2014, had numerous procedural

deficiencies:

1. UC did not respond to Doe I’s attorney’s request that the UC Police investigator be

present at the hearing.

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2. UC did not permit Doe I to introduce relevant evidence from the UC Police

investigation, such as the rape-kit analysis, text messages, surveillance video, or

police report.

3. Doe I was not allowed to impeach a witness, Roe I’s boyfriend, who lacked firsthand

knowledge of the incident.

4. Doe I was not allowed to personally record the hearing.

5. The ARC hearing chair refused to ask witnesses relevant questions that Doe I

submitted.

6. The ARC hearing chair refused to compel the attendance of UC police officers who

investigated Doe I’s case.

7. The ARC panel refused to consider a binder of evidence Doe I submitted that

allegedly supported his version of the events.

Doe I claims that these deficiencies led the ARC panel to find that Doe I had violated UC’s Code

of Conduct with respect to Roe I’s claims. Doe I left the ARC hearing before the panel

considered Roe II’s allegations because he determined he would not be afforded due process.

Doe I appealed the ARC panel’s findings. On appeal, UC determined that substantial

procedural errors had occurred and granted Doe I a new hearing. The new hearing took place on

May 18–19, 2015. Although Doe I concedes that his second hearing was not the same “kangaroo

court[]” as before, he alleges it still lacked significant procedural protections:

1. The panel improperly considered Cummins’s allegedly biased investigative report.

2. The panel was not advised that Doe I was presumed innocent or that the complainants

bore the burden of proof.

3. The panel refused to ask the complainants a number of written questions that Doe I

submitted and that were intended to highlight inconsistencies in the complainants’

stories.

4. Doe I was not permitted to make his own recording of the hearing.

5. Doe I was given access to a university advisor at late notice, while the complainants

received access to an advisor at an earlier date.

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6. The panel heard “impact statements” from the complainants prior to adjudicating Doe

I’s responsibility.

7. Doe I was not provided advanced notice of the evidentiary rules that would be

employed at the hearing.

8. UC failed to provide the panel with information regarding alleged academic

accommodations that were provided to the complainants throughout the investigation,

accommodations that Doe I claims may have affected their credibility.

Id. at 38–41.

On rehearing, the ARC panel found Doe I “responsible” for violating UC’s Code of

Conduct with respect to Roe I, but “not responsible” with respect to Roe II. Id. at 41. Doe I

claims that no explanation was given for the inconsistent decision. Doe I’s appeal—including

his claim that the ARC panel erroneously allocated the burden of proof—was rejected by UC’s

Appeal Administrator, Denine Rocco. In response to Doe I’s burden-of-proof argument, Rocco

stated that, “Neither party has any burden of proof. Instead, the ARC [panel] uses the hearing to

investigate what happened and then makes a finding based on the preponderance of evidence.”

Id. at 41–42. Rocco affirmed the ARC panel’s decision on July 23, 2015. As a result of the

responsibility finding, Doe I received a three-year suspension from UC. He has since transferred

to another educational institution.

C.

In March 2014, John Doe II was a law student at UC. On March 6, 2014, Cummins

received a report from Jane Roe III that she had been sexually assaulted by Doe II. Doe II claims

that although Roe III did not report this matter to police, a police report was created at the behest

of Cummins. Following her allegations, Roe III also allegedly received accommodations,

including additional time to complete her graduate thesis. Like Doe I, Doe II claims that he was

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subject to various “interim measures,” including restricted access to certain campus buildings.

Id. at 44.

Doe II claims that Cummins first notified him of the charges on March 17, 2014, and that

he had a formal, in-person meeting with Cummins to discuss the allegations on March 26, 2014.

Following this meeting, Cummins completed an investigatory report, which allegedly

misrepresented Doe II’s statements. Doe II claims that he was not given access to this report

prior to his ARC hearing.

Doe II’s ARC hearing was held on April 22, 2014. Because Doe II’s advisor had a

conflict, he was able to attend only part of the hearing. Doe II alleges that Cummins refused to

accommodate his advisor’s request for a different hearing date. Like Doe I, Doe II claims that

his initial ARC hearing was procedurally deficient in several ways:

1. The panel heard a victim “impact statement” prior to an adjudication of

responsibility.

2. The panel misapplied the definition of “consent” and other legal terms as set forth in

UC’s Title IX policy.

3. The panel permitted witnesses to make prejudicial statements and offer their own

legal conclusions.

4. A Title IX expert was not permitted to testify about the proper legal definition of

terms such as “consent.”

5. Doe II was not permitted to effectively cross-examine adverse witnesses because

questions were required to be submitted in writing through the panel and no follow-

up was allowed.

6. Unreliable hearsay evidence was admitted at the hearing.

7. The panel did not receive any evidence substantiating Roe III’s claim that she was

intoxicated.

Id. at 46–47. Doe II was found “responsible” for violating UC’s Code of Conduct with respect

to Roe III’s claims. Id. at 48. On appeal, Doe II was granted a new ARC hearing.

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The second ARC hearing was held on October 28, 2014. Doe II claims that the second

hearing was permeated with many, if not all, of the same procedural defects that plagued the first

hearing. He also claims that Roe III told Doe II that he was a “rapist” and was “going to Hell”

during her victim-impact statement. Id. Following these comments, Roe III allegedly “stormed

out of the hearing,” which precluded any opportunity for Doe II to cross-examine her. Id. at 49.

The ARC panel again found Doe II “responsible” for a Code-of-Conduct violation. Id.

Doe II alleges that he was not allowed to appeal this finding but claims that Rocco affirmed this

decision on November 10, 2014. As a result, Doe II was placed on disciplinary probation and

required to complete and submit a seven-page research paper. Doe II has since graduated from

UC’s law school, but claims that the negative notation in his academic record may affect future

employment opportunities or bar admission in other states.

D.

In October 2015, Doe I and Doe II filed suit in the District Court for the Southern District

of Ohio against UC and several of its administrators for allegedly mishandling their sexual-

assault disciplinary proceedings. They sought declaratory and injunctive relief under 42 U.S.C.

§ 1983 against UC and the individual defendants in their official capacities. They also sought

damages from the individual defendants in their personal capacities, alleging violations of their

Fourteenth Amendment due-process rights. In addition, Doe I and Doe II sought damages and

equitable relief from UC under Title IX, arguing that the adverse outcomes in their UC

disciplinary proceedings were the result of gender discrimination.

UC and the individual defendants filed a motion to dismiss. The district court granted the

motion to dismiss on all claims. Specifically, the district court concluded that the procedures

provided to Doe I and Doe II in the adjudication of their sexual-assault cases met the minimum

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requirements of due process as required by the Fourteenth Amendment. The district court also

found that, irrespective of any due-process concerns, the individual defendants were entitled to

qualified immunity for appellants’ § 1983 damages claims. Finally, the district court found that

appellants’ complaint failed to allege sufficient facts to raise a plausible inference of gender

discrimination under Title IX. Doe I and Doe II timely appealed.

II.

We review de novo a district court’s dismissal of a plaintiff’s complaint for failure to

state a claim under Rule 12(b)(6). Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006). To

survive a Rule 12(b)(6) motion, a plaintiff must provide “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). This standard is not a “probability requirement,” but “asks for more

than a sheer possibility that a defendant has acted unlawfully.” Id. We must construe the

complaint in a light most favorable to the plaintiff, accepting all factual allegations as true, and

drawing all reasonable inferences in the plaintiff’s favor. Logsdon v. Hains, 492 F.3d 334, 340

(6th Cir. 2007). It is not, however, required that we accept the plaintiff’s legal conclusions as

true, and thus “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

III.

The district court held that appellants’ claims for declaratory relief against the individual

defendants in their official capacities were barred by the Eleventh Amendment, but that their

claims for declaratory relief against these officials in their personal capacities were not so barred.

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Appellees argue that the Eleventh Amendment precludes all claims for declaratory relief against

the individual defendants, both in their official and personal capacities. Although we believe the

district court erred in limiting the availability of declaratory relief to only those claims made

against the individual defendants in their personal capacities, we agree that the Eleventh

Amendment does not bar the declaratory relief sought here.

The Eleventh Amendment bars suits for money damages against the State, arms of the

State, and state officials acting in their official capacities. See Rodgers v. Banks, 344 F.3d 587,

594 (6th Cir. 2003). Suits for equitable relief against the State and its departments are also

prohibited. McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012). Suits for injunctive

and declaratory relief against state officials acting in their official capacities, however, are

permitted in limited circumstances. See Ex Parte Young, 209 U.S. 123, 155–56 (1908); Edelman

v. Jordan, 415 U.S. 651, 666–69 (1974). Whether the Eleventh Amendment bars such suits turns

on the nature of the relief sought. See Edelman, 415 U.S. 651, 666–69. The Eleventh

Amendment does not bar relief that is prospective in nature and designed to ensure future

compliance with federal law. Id. Retroactive equitable relief against state officials—often

involving compensatory payments from the state treasury—however, is precluded by the

Eleventh Amendment because it is effectively a suit against the state itself. Nelson v. Miller,

170 F.3d 641, 646 (6th Cir. 1999).

Because Doe I and Doe II are seeking prospective equitable relief, their claims are not

barred by the Eleventh Amendment. Appellants are requesting an injunction against the

individual defendants in their official capacity “prohibiting the imposition of, or reporting of, any

disciplinary actions under the UC Code of Student Conduct.” DE 1, Compl., Page ID 63. If

successful, this claim would not require the court to grant any retroactive or compensatory

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remedy. Rather, the individual defendants would merely be compelled to remove the negative

notation from appellants’ disciplinary records that resulted from the allegedly unconstitutional

disciplinary process. This is nothing more than prospective remedial action. See Thomson v.

Harmony, 65 F.3d 1314, 1321 (6th Cir. 1995) (holding that an injunction requesting the removal

of negative entries from a personnel record resulting from an alleged due-process violation was

not barred by the Eleventh Amendment); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007)

(finding negative entries in a student’s university records stemming from an allegedly

unconstitutional action presented a continuing violation sufficient to trigger the Ex Parte Young

exception). Importantly, this relief imposes no monetary burden on the state itself, a factor often

dispositive when examining the availability of injunctive relief under the Eleventh Amendment.

See Edelman, 415 U.S. at 663–66. Accordingly, the Eleventh Amendment does not bar the

injunctive relief at issue here. See Thomson, 65 F.3d at 1321.

Appellees nevertheless argue that appellants’ request for a declaratory judgment that the

individual defendants violated the Due Process Clause is barred under the Eleventh Amendment

because it targets past conduct. Such relief, however, is permissible under the Eleventh

Amendment. Standing alone, this type of declaratory relief would likely be barred given its

retroactive nature. See Brown v. Strickland, No. 2:10-cv-166, 2010 WL 2629878, at *4 (S.D.

Ohio June 28, 2010) (“[A] declaratory judgment against state officials declaring that they

violated federal law in the past constitutes retrospective relief. . . .”). Such relief, however, is

permitted when it is ancillary to a prospective injunction designed to remedy a continuing

violation of federal law. See Green v. Mansour, 474 U.S. 64, 67–73 (1985); Banas v. Dempsey,

742 F.2d 277, 286–88 (6th Cir. 1984). Accordingly, we find such declaratory relief against the

individual defendants is also allowed under the Eleventh Amendment.

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IV.

The district court dismissed appellants’ due-process claims, holding that the alleged

deficiencies in UC’s disciplinary procedures did not constitute a violation of their due-process

rights. Appellants appealed, arguing that numerous procedural deficiencies resulted in a

disciplinary process that deprived them of property and liberty interests without due process.

Doe I and Doe II claim that the procedural deficiencies pervading UC’s disciplinary

process deprived them of a fundamentally fair hearing and a meaningful opportunity to be heard.

In their complaint, appellants allege that UC engaged in numerous procedures that violated their

due-process rights, including: (1) conducting biased investigations; (2) improperly admitting

hearsay evidence without providing appellants the opportunity to effectively cross-examine

hearsay witnesses; (3) permitting the ARC panel to hear impact statements prior to adjudicating

responsibility; (4) improperly applying UC’s policies and Code of Conduct at the hearing;2

(5) not allowing effective cross-examination of adverse witnesses; (6) denying effective

assistance of counsel due to the inability of counsel to participate in the hearing; (7) improperly

allocating the burden of proof at the hearing; and (8) utilizing an inherently biased panel that

routinely finds in favor of victims.3 Appellees contend that appellants received constitutionally

sufficient procedures, namely, notice of the charges, an explanation of the evidence against them,

and a meaningful opportunity to present their side of the story. For the reasons set out below, we

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. See Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 570 (6th Cir. 2011) (holding

that the violation of school policies or state law does not create a cognizable due-process claim in federal court);

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).

3

Appellants claim that “[a]n ARC Hearing Panel has never failed to recommend that a student be found responsible

and significant discipline be imposed.” DE 1, Compl., Page ID 58. Like the district court, we take this to mean that

appellants are alleging they faced a disciplinary panel that was inherently biased against them.

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affirm the district court because appellants received sufficient due process under the Fourteenth

Amendment.

A.

The Constitution requires certain minimum procedures before an individual is deprived

of a “liberty” or “property” interest within the meaning of the Due Process Clause of the

Fourteenth Amendment. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). We have recognized

that these protections apply to higher education disciplinary decisions. Flaim v. Med. Coll. of

Ohio, 418 F.3d 629, 633 (6th Cir. 2005). Doe I’s suspension clearly implicates a property

interest. See Jaksa v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1247–48 (E.D. Mich. 1984).

And although Doe II was not deprived of a property interest under the Due Process Clause

because he was not suspended, the adverse disciplinary decision did, and continues to, impugn

his reputation and integrity, thus implicating a protected liberty interest. See Wisconsin v.

Constantineau, 400 U.S. 433, 437 (1971) (holding that where “a person’s good name, reputation,

honor, or integrity is at stake because of what the government is doing to him,” the minimal

requirements of due process must be satisfied).

Once we conclude that due process applies, “the question remains what process is due.”

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). We answer this question by applying the

framework articulated by the Supreme Court in Mathews, 424 U.S. at 335. See Flaim, 418 F.3d

at 634.

Under Mathews, the level of process the Fourteenth Amendment requires is determined

by balancing three factors: (1) the nature of the private interest affected by the deprivation;

(2) the risk of an erroneous deprivation in the current procedures used, and the probable value, if

any, of additional or alternative procedures; and (3) the governmental interest involved,

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including the burden that additional procedures would entail. Mathews, 424 U.S. at 335.

Although the inquiry should be flexible, due process requires, at a minimum, “the opportunity to

be heard ‘at a meaningful time and in a meaningful manner.’” Id. at 333 (quoting Armstrong v.

Manzo, 380 U.S. 545, 552 (1965)). In the school-disciplinary context, an accused student must

at least receive the following pre-expulsion: (1) notice of the charges; (2) an explanation of the

evidence against him; and (3) an opportunity to present his side of the story before an unbiased

decisionmaker. Heyne, 655 F.3d at 565–66 (citing Goss v. Lopez, 419 U.S. 565, 581 (1975)).

We have recognized, however, that “disciplinary hearings against students . . . are not criminal

trials, and therefore need not take on many of those formalities.” Flaim, 418 F.3d at 635.

Although a university student must be afforded a meaningful opportunity to present his side, a

full-scale adversarial proceeding is not required. See id. at 640. The focus, rather, should be on

whether the student had an opportunity to “respond, explain, and defend,” and not on whether the

hearing mirrored a criminal trial. Id. at 635 (quoting Gorman v. Univ. of R.I., 837 F.2d 7, 13 (1st

Cir. 1988)). With these principles in mind, we turn to the Mathews framework.

B.

The first factor to be weighed under Mathews is the nature of the private interest at stake.

Mathews, 424 U.S. at 335. Here, both Doe I and Doe II were accused of serious sexual offenses.

A finding of responsibility will thus have a substantial lasting impact on appellants’ personal

lives, educational and employment opportunities, and reputations in the community. See Goss,

419 U.S. at 574–75. Accordingly, appellants’ private interests are compelling. This is especially

true for Doe I, who received a three-year suspension. Doe II’s interest, however, while still

significant, is slightly diminished given that he was placed only on “university disciplinary

probation,” and not suspended or expelled. DE 1, Compl., Page ID 49.

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C.

The strength of appellants’ private interests, however, is not the end of the inquiry. We

must also consider the other two factors in the Mathews framework. To do so, we balance

appellants’ private interests against the “additional procedures requested, any error-reducing

benefit those procedures might have, and the burden on [the University] of adding those

additional procedures.” Flaim, 418 F.3d at 638. In analyzing the sufficiency of UC’s

procedures, we review each alleged deficiency in isolation for purposes of analytical clarity. The

focus of our analysis, however, is not whether each procedural protection is required, but rather

what protections, as a whole, were required in this case.

In reviewing appellants’ due-process claims, we agree with the district court that, “to the

extent that [Doe I and Doe II] base their due process claims on alleged defects in their first

hearings, those alleged errors were harmless because their appeals were sustained and they both

received new hearings.” Doe v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 601 (S.D. Ohio 2016).

Thus, although both Doe I and Doe II allege that numerous procedural deficiencies existed in

their first ARC hearings, those defects were cured by UC’s decision to grant their appeals, vacate

the finding of responsibility, and provide each a second hearing. See Harper v. Lee, 938 F.2d

104, 105–06 (8th Cir. 1991) (finding that administrative reversal and grant of new disciplinary

hearing rectified any procedural deficiencies in an inmate’s initial hearing); see also Young v.

Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992). Accordingly, the relevant procedures for

purposes of our Mathews analysis are those employed by UC in appellants’ most recent hearings.

1.

There is no question that both Doe I and Doe II received adequate notice of the charges

against them. Doe I concedes that he received written notice of the charges against him on

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March 12, and had a follow-up meeting with Cummins on March 28 to discuss the allegations.

This was a full month before his first ARC hearing on May 2. Similarly, Doe II states that

Cummins notified him in writing of the allegations against him on March 17, and that he had a

follow-up meeting with Cummins to discuss the charges on March 26. This was also a full

month before Doe II’s initial ARC hearing on April 22. This dual form of notice was sufficiently

formal and timely to satisfy due-process requirements and provide appellants with a meaningful

opportunity to prepare a defense. See Flaim, 418 F.3d at 638 (“Notice satisfies due process if the

student had sufficient notice of the charges against him and a meaningful opportunity to prepare

for the hearing.” (quoting Jaksa, 597 F. Supp. at 1250)).

2.

Appellants make several arguments regarding the procedures actually employed at their

ARC hearings, all of which ultimately fail to state a due-process violation. First, appellants

challenge the use of hearsay evidence without adequate safeguards. Appellants’ complaint,

however, fails to indicate what hearsay was actually allowed against them in their hearings. The

only reference to the use of hearsay involves appellants’ initial hearings. As discussed above,

any procedural deficiencies in appellants’ initial hearings were cured when they received new

hearings. Because there is no claim that hearsay evidence was introduced in the second hearings,

this allegation is irrelevant to our analysis.

Second, appellants claim that the ARC panel erred by allowing the introduction of

victim-impact statements prior to adjudicating responsibility. While due process does not

necessarily require that formal “rules of evidence, [or] rules of civil or criminal procedure” be

applied in a school-disciplinary setting, Flaim, 418 F.3d at 635, this allegation is potentially

problematic under Mathews. Exposure to victim-impact statements prior to an adjudication on

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the merits may prejudice the accused and lead to an erroneous outcome based on emotion, as

opposed to reason. This is especially true in Doe II’s case given that the victim testified that Doe

II was “a rapist” and was “going to Hell.” DE 1, Compl., Page ID 48. But UC has a strong

interest in avoiding the bifurcation of proceedings into multiple phases—i.e., a guilt phase and a

punishment phase—that would add time, expense, and complexity to every disciplinary hearing.

Additionally, there were procedural protections in place to counteract any potential for error

from allowing the victims’ statements, including the panel’s ability to make credibility

determinations of the victims’ statements and appellants’ own opportunity to refute the victims’

accounts. Moreover, the limited prejudicial impact of allowing the ARC panels to consider the

victim-impact statements prior to determining appellants’ responsibility is illustrated in this case.

Although the victim’s statements in Doe II’s hearing were more prejudicial than those in Doe I’s,

Doe II ultimately received a more lenient punishment. On balance, therefore, we find that the

introduction of victim-impact statements prior to determining appellants’ responsibility did not

impact appellants’ due-process rights under Mathews.

Third, appellants claim that they were denied effective cross-examination of witnesses

because they were allowed to submit only written questions to the ARC panel, the panel did not

ask all of the questions they submitted, and they were not allowed to submit follow-up questions.

Although due process may require a limited ability to cross-examine witnesses in school

disciplinary hearings where, like here, credibility is at issue, see Flaim, 418 F.3d at 641 (citing

Winnick v. Manning, 460 F.2d 545, 549–50 (2d Cir. 1972)), that requirement was satisfied in this

case. Any marginal benefit that would accrue to the fact-finding process by allowing follow-up

questions in appellants’ ARC hearings is vastly outweighed by the burden on UC. See Newsome

v. Batavia Local Sch. Dist., 842 F.2d 920, 926 (6th Cir. 1988) (“To saddle [school officials] with

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the burden of overseeing the process of cross-examination (and the innumerable objections that

are raised to the form and content of cross-examination) is to require of them that which they are

ill-equipped to perform.”). Moreover, the circumscribed form of cross-examination utilized in

appellants’ hearings has been found constitutionally sufficient under Mathews in one of our sister

circuits. See Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir. 1987) (holding that there “was

no denial of appellants’ constitutional rights to due process by their inability to question the

adverse witnesses in the usual, adversarial manner”).

Doe II’s argument on this point, however, is stronger given he was not permitted to cross-

examine Roe III, in any form, during his second hearing. But his claim that cross-examination

was required still fails for two reasons. First, as mentioned above, Doe II’s private interest under

Mathews’s first prong is diminished because he was not facing expulsion, only disciplinary

probation. Thus, the requisite level of procedural formalities for Doe II was not as high as was

required for Doe I, who was facing a serious suspension.4 See Goss, 419 U.S. at 584 (“Longer

suspensions or expulsions . . . may require more formal procedures.”). Second, it appears that

Doe II did have the chance to cross-examine Roe III in his initial hearing in the presence of

several panel members who then presided over his second hearing. Although it is unclear to

what extent these panel members relied on this initial cross-examination in reaching their

conclusions in the subsequent hearing, taken together, these two facts preclude a due-process

violation in Doe II’s case.

Fourth, appellants contend that they were denied due process because their advisors were

not allowed to actively participate in their hearings despite being able to attend them. We have

recognized that a student may have a constitutional right to counsel in academic disciplinary

4

In fact, the negative entry in Doe II’s disciplinary record has not prevented him from graduating law school or

passing the Ohio Bar Exam.

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proceedings where the hearing is unusually complex or when the university itself utilizes an

attorney. See Flaim, 418 F.3d at 640 (citing Jaksa, 597 F. Supp. at 1252). Neither scenario is

present here. And appellants fare no better under Mathews balancing. Although appellants’

advisors were not allowed to actively participate in the hearing, they were still permitted to be

present and advise appellants in presenting their cases. The added benefit of allowing active

participation by an advisor here is minimal given the limited cross-examination of witnesses, the

lack of complexity, and the fact that knowledge of evidentiary rules was not required. Moreover,

the burden on UC of allowing this level of participation by counsel in every disciplinary hearing

would be significant due to the added time, expense, and increased procedural complexity. See

Flaim, 418 F.3d at 640–41 (“Full-scale adversarial hearings in school disciplinary proceedings

have never been required by the Due Process Clause and conducting these types of hearings with

professional counsel would entail significant expense and additional procedural complexity.”).

The inability of appellants’ advisors to actively participate in their hearings, therefore, does not

present a due-process violation under Mathews.

Finally, appellants allege that it was constitutional error to fail to place the burden of

proof on their accusers, effectively requiring appellants to prove their innocence. Although the

locus of the burden of proof can frequently be dispositive to the outcome of a case, the Supreme

Court has concluded that “[o]utside the criminal law area,” which party bears the burden of proof

“is normally not an issue of federal constitutional moment.” Lavine v. Milne, 424 U.S. 577, 585

(1976).

Under Mathews, however, placing the burden of proof on the appellants may have proven

constitutionally suspect due to the potentially detrimental effect on the accuracy of the hearing

and the minimal burden of an alternate procedure. But, as the district court recognized, the facts

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alleged in appellants’ complaint tend to show that the ARC panel did not place the burden of

proof on either party. Rather, the panel functioned as a board of inquiry, reaching its conclusion

based on a preponderance of the evidence. Allocating the burden of proof in this manner—in

addition to having other procedural mechanisms in place that counterbalance the lower standard

used (e.g., an adequate appeals process)—is constitutionally sound and does not give rise to a

due-process violation.

3.

Appellants’ most ubiquitous argument is that the entire UC disciplinary process was

inherently biased against them, resulting in a fundamentally unfair process. It is unquestioned

that a fundamental due-process requirement is an impartial and unbiased adjudicator. Withrow v.

Larkin, 421 U.S. 35, 47 (1975); Heyne, 655 F.3d at 566.5 It is also well established that school-

disciplinary committees are entitled to a presumption of impartiality, absent a showing of actual

bias. Atria v. Vanderbilt Univ., 142 F. App’x 246, 256 (6th Cir. 2005) (“[I]n a ‘university

setting, a disciplinary committee is entitled to a presumption of honesty and integrity, absent a

showing of actual bias.’” (quoting McMillan v. Hunt, No. 91-3843, 1992 WL 168827, at *2 (6th

Cir. July 21, 1992))); cf. Withrow, 421 U.S. at 47. Thus, “[a]ny alleged prejudice on the part of

the [decisionmaker] must be evident from the record and cannot be based in speculation or

inference.” Nash, 812 F.2d at 665.

Appellants make several allegations regarding UC’s disciplinary process that they claim

evince a bias against those accused of sexual misconduct. First, appellants claim that, due to

pressure from the Department of Education, UC employs a biased investigatory process in order

5

Given that the constitutional requirement of an unbiased decisionmaker is absolute and does not vary based on the

facts of the case, Mathews is inapplicable to this alleged procedural defect. Accordingly, a finding of partiality and

bias would automatically trigger a due-process violation, irrespective of any balancing of interests. See Withrow v.

Larkin, 421 U.S. 35, 47 (1975) (noting that a “biased decisionmaker” in the administrative context is

“constitutionally unacceptable”).

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to “look good” for the Department and preserve federal funding. CA6 R.16, Appellants’ Br., at

28–29. As the district court correctly observed, this is nothing more than a conclusory allegation

devoid of any facts or evidence that UC, itself, has been subjected to any direct investigation or

pressure by the Department of Education.6 See Iqbal, 556 U.S. at 678 (noting that courts are not

required to accept conclusory statements as true); Ctr. for Bio-Ethical Reform, Inc. v.

Napolitano, 648 F.3d 365, 377 (6th Cir. 2011) (finding that “vague and conclusory allegations of

nefarious intent and motivation by officials at the highest levels of the federal government” are

insufficient to state a claim under Iqbal).

Next, appellants assert that Cummins displayed biased behavior against them, including:

(1) seeking accommodations for the alleged victims while simultaneously investigating their

allegations; and (2) preparing a biased investigatory report that excluded exculpatory evidence.

With respect to the allegedly improper accommodations, these are required by federal

regulations. See 34 C.F.R. § 668.46(b)(11)(v). Complying with these regulations, therefore, is

not evidence of Cummins’s bias. Moreover, any claim regarding the allegedly biased

investigative report is weakened by the fact that Cummins did not ultimately serve on the ARC

panels that adjudicated appellants’ culpability. Instead, appellants’ responsibility was

adjudicated by an independent panel that considered all of the evidence allegedly left out of

Cummins’s investigative report. Accordingly, even if Cummins’s initial investigations of the

incidents were biased, those defects were cured by the ARC panel’s subsequent handling of

appellants’ cases.

Finally, appellants allege a general bias by ARC panel members against students accused

of sexual misconduct. They claim that the panel members received biased training that

6

The complaint states that the federal government is investigating at least 129 schools for possible Title IX

violations related to sexual assaults and then lists several schools that are the subject of those investigations.

Notably absent is the University of Cincinnati.

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emphasized the rights of the complaining party over the due-process rights of the accused, and

that the panel members had a history of finding in favor of victims in sexual-misconduct cases.

These allegations are belied by the process appellants received. In both cases, the initial

responsibility determination was reversed on appeal for inadequate hearing procedures. This

demonstrates a system that places much importance on the due-process rights of the accused at

the expense of losing a finding in favor of the accuser. Furthermore, Doe I was ultimately found

“not responsible” for the allegations made by Roe II. It is difficult to explain how the ARC

panel was biased against Doe I in finding him “responsible” for Roe I’s allegations but not

biased against him in finding him “not responsible” for Roe II’s allegations. Overall, this

argument is untenable. Accordingly, we find that appellants’ claims of bias in UC’s disciplinary

process lack constitutional merit.7

4.

Although not perfect, the process afforded to Doe I and Doe II comports with the Due

Process Clause of the Fourteenth Amendment. See Flaim, 418 F.3d at 637 (“[T]he requirements

mandated by the Due Process Clause afford, ‘if anything, less than a fair minded school

administrator would impose upon himself in order to avoid unfair decisions.’” (quoting Goss,

419 U.S. at 538)). Appellants received adequate notice of the charges against them and a

sufficient opportunity to prepare a defense. Regardless of whether appellants’ initial hearings

were permeated with procedural deficiencies, following an appeal, they each received new

hearings without many of the same alleged deficiencies. At these new hearings, appellants were

able to offer pertinent evidence and explain their version of the events. Appellants were also

allowed to conduct modified cross-examination and have an advisor present at the hearing.

7

Appellants also cite statistics that allegedly suggest a bias against men in UC’s enforcement of Title IX. This

argument also fails for reasons discussed infra Part V.

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Although the procedures employed by UC did not rise to the level of those provided to criminal

defendants, that level of process is not required in school-disciplinary proceedings. See Flaim,

418 F.3d at 635. At bottom, all that is required under the Due Process Clause is an “opportunity

to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at 333

(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Appellants received that here.

Accordingly, we affirm the district court’s dismissal of appellants’ due-process claims.8

V.

Appellants also allege that the adverse outcomes in their respective disciplinary hearings

resulted from gender discrimination in violation of Title IX. The district court found that

appellants’ complaint failed to state a viable Title IX claim because it failed to create a plausible

inference of gender discrimination on the part of UC. We agree.

Title IX prohibits educational institutions receiving federal funds from discriminating on

the basis of gender. 20 U.S.C. § 1681(a)(1). Although we are not subject to a binding

framework in evaluating a student’s Title IX discrimination claim, we have previously looked to

the Second Circuit’s decision in Yusuf v. Vassar College, 35 F.3d 709, 715 (2d Cir. 1994), which

identified two categories of Title IX claims related to student-disciplinary hearings: “erroneous

outcome” claims and “selective enforcement” claims.9 See Mallory v. Ohio Univ., 76 F. App’x

634, 638–39 (6th Cir. 2003). A successful “erroneous outcome” claim requires the plaintiff to

show that the “outcome of [the] University’s disciplinary proceeding was erroneous because of

8

Because we find that there is no due-process violation, we need not reach the question of qualified immunity.

9

As was the case with the appellant in Mallory, Doe I and Doe II ask us to adopt two additional categories of Title

IX claims: (1) “deliberate indifference” claims and (2) “archaic assumptions” claims. Noting that the Mallory court

assumed only, arguendo, that such categories apply, we decline to adopt them because neither is applicable here.

Mallory v. Ohio Univ., 76 F. App’x 634, 639 (6th Cir. 2003). The “archaic assumptions” standard appears limited to

unequal athletic opportunities. Id. at 638–39; see also Marshall v. Ohio Univ., No. 2:15-cv-775, 2015 WL 7254213,

at *8 (S.D. Ohio Nov. 17, 2015) (noting that the archaic assumptions doctrine appears limited to unequal athletic

opportunities). Additionally, appellants make no arguments with respect to the “deliberate indifference” standard.

As such, any “deliberate indifference” claim is waived. Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir. 2013)

(“[A]rguments adverted to in only a perfunctory manner[] are waived.”).

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sex bias.” Id. at 639; see also Marshall v. Ohio Univ., No. 2:15-cv-775, 2015 WL 7254213, at

*5 (S.D. Ohio Nov. 17, 2015) (“The gravamen of an erroneous outcome claim is that an

‘innocent’ person was wrongly found to have committed an offense because of his or her

gender.”). To prevail on a “selective enforcement” claim, the plaintiff must show that a

similarly-situated member of the opposite sex was treated more favorably than the plaintiff due

to his or her gender. Mallory, 76 F. App’x at 641; Marshall, 2015 WL 7254213, at *6.

Appellants’ claims are most appropriately analyzed under the “erroneous outcome”

standard.10 Under this standard, “allegations of a procedurally or otherwise flawed proceeding

that has led to an adverse and erroneous outcome combined with a conclusory allegation of

gender discrimination is not sufficient to survive a motion to dismiss.” Yusuf, 35 F.3d at 715.

Instead, to state an erroneous-outcome claim, a plaintiff must plead: (1) “facts sufficient to cast

some articulable doubt on the accuracy of the outcome of the disciplinary proceeding” and (2) a

“particularized . . . causal connection between the flawed outcome and gender bias.” Id.

Causation sufficient to state a Title IX discrimination claim can be shown via “statements by

members of the disciplinary tribunal, statements by pertinent university officials, or patterns of

decision-making that also tend to show the influence of gender.” Id. Because appellants have

failed to show any causal connection between the adverse outcomes in their hearings and gender

bias, they have not met their burden here. Accordingly, their Title IX claims fail.

Appellants first contend that, in order to appease the Department of Education, UC

adopted a practice of investigation and enforcement under Title IX that is inherently biased

against male students accused of sexual assault. This claim is unfounded. First, to the extent

appellants claim that the accommodations offered to the complainants during the investigatory

10

Because appellants do not allege that a similarly accused female was treated differently under UC’s disciplinary

process, the “selective enforcement” standard is inapplicable.

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process are evidence of gender bias, these claims fail because such accommodations were

required by federal regulations. See supra Part IV.C.3. Second, unlike the allegations in the

cases relied on by appellants, the allegations in appellants’ complaint are mere conclusory

statements, unsupported by sufficient factual allegations to make their claims plausible.

For example, Doe v. Columbia University, No. 15-1536, 2016 WL 4056034 (2d Cir. July

29, 2016), involved additional facts substantiating the plaintiff’s claim that federal-government

influence had led to gender bias in the university’s enforcement proceeding. In that case,

Columbia University, in the weeks leading up to the plaintiff’s hearing, had faced substantial

criticism from both the student body and the public media regarding its handling of sexual-

assault investigations. Id. at *8. The effect of this criticism was evident from the university

president’s decision to call a campus-wide town hall for students to discuss the issue with the

dean of the university. Id. The plaintiff’s complaint in Columbia University also alleged that the

Title IX investigator—the position occupied by Cummins at UC—was herself subject to public

criticism in the weeks prior to the hearing. Id. at *9. The Second Circuit concluded that these

additional facts were sufficient to support an inference that pressure to avoid Title IX liability

and further public criticism had led to a disciplinary system that was biased against males. Id. at

*8–9.

Appellants fail to allege similar supporting facts here. They do not allege that UC or any

of its officials had faced public criticism for their handling of Title IX investigations prior to

appellants’ hearings. Nor do appellants allege that UC—unlike Columbia University—was

being investigated by the federal government for potential Title IX violations. Instead,

appellants allege more generally that the Department of Education’s “Dear Colleague Letter”

induced UC to discriminate against males in sexual-assault investigations in order to preserve

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federal funding. This conclusory allegation, without more, is insufficient to create a plausible

claim of gender bias under Title IX.

Appellants next claim that UC’s alleged due-process violations—e.g., the limited right to

cross-examination, the limited access to an advisor, and the improper allocation of the burden of

proof—evidence gender discrimination in UC’s disciplinary process. Appellants, however, fail

to show how these alleged procedural deficiencies are connected to gender bias. As noted by the

district court, these deficiencies at most show a disciplinary system that is biased in favor of

alleged victims and against those accused of misconduct. 11 But this does not equate to gender

bias because sexual-assault victims can be both male and female. See Sahm v. Miami Univ., 110

F. Supp. 3d 774, 778 (S.D. Ohio 2015) (“Demonstrating that a university official is biased in

favor of the alleged victims of sexual assault claims, and against the alleged perpetrators, is not

the equivalent of demonstrating bias against male students.”). Accordingly, without additional

facts linking these alleged procedural deficiencies to gender bias, these procedural defects do not

create a plausible inference of gender discrimination under Title IX. See Yusuf, 35 F.3d at 715

(“Allegations of a procedurally or otherwise flawed proceeding that has led to an adverse and

erroneous outcome combined with a conclusory allegation of gender discrimination is not

sufficient to survive a motion to dismiss.”).

Finally, appellants cite statistics that they allege evince a pattern of discrimination against

males in UC’s investigation and adjudication of sexual-misconduct claims. Specifically,

appellants claim that since 2011 there have been nine sexual-assault investigations at UC, and in

all nine cases, the accused was male and was ultimately found responsible. Like appellants’

other claims, this allegation fails to create a plausible inference of gender bias.

11

Although appellants attack this portion of the district court’s opinion as evidence of a due-process violation, we

concluded that UC’s disciplinary process was not inherently biased, and thus complied with the minimum

requirements of due process. See supra Part IV.C.3.

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First, as the district court aptly observed, appellants fail to eliminate the most obvious

reasons for the disparity between male and female respondents in UC sexual-misconduct cases:

“(1) UC has only received complaints of male-on-female sexual assault, and (2) males are less

likely than females to report sexual assaults.” Univ. of Cincinnati, 173 F. Supp. 3d at 607–08. It

would be unreasonable, therefore, for us to infer that the gender disparity in UC’s sexual-

misconduct cases is the result of gender bias, as opposed to these other, more innocent causes.

See Girgis v. Countrywide Home Loans, Inc., 733 F. Supp. 2d 835, 843 (N.D. Ohio 2010)

(“While it is true that, in considering a motion to dismiss, all well-pleaded factual allegations

must be taken as true, a court need not indulge in unreasonable inferences.” (citations and

internal quotations omitted)); cf. King v. DePauw Univ., No. 2:14–cv–70–WTL–DKL, 2014 WL

4197507, at *11 (S.D. Ind. Aug. 22, 2014) (noting that a university “is not responsible for the

gender makeup of those who are accused by other students of sexual misconduct” (emphasis in

original)).

Second, nine cases is hardly a sufficient sample size for this court to draw any reasonable

inferences of gender bias from these statistics. See Simpson v. Midland-Ross Corp., 823 F.2d

937, 943 (6th Cir. 1987) (finding sample size of seventeen cases insufficient to support an

inference of discrimination in the employment context). Finally, appellants’ own treatment

belies their argument that men are invariably found responsible in UC sexual-assault

investigations: Doe I was found “not responsible” for Roe II’s allegations. These statistics,

therefore, are insufficient to show a pattern of decisionmaking suggesting the influence of gender

in the UC disciplinary process. See Yusuf, 35 F.3d at 715.

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Because appellants have failed to create a reasonable inference that gender bias affected

the outcome of their respective proceedings, we affirm the district court’s finding that appellants

have failed to state a plausible Title IX gender-discrimination claim.

VI.

For the reasons stated above, we affirm.

29