Natalie Plummer v. University of Houston, e

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-20350 FILED

June 23, 2017

Lyle W. Cayce

NATALIE PLUMMER; RYAN MCCONNELL, Clerk

Plaintiffs - Appellants

v.

UNIVERSITY OF HOUSTON; RICHARD BAKER; RICHARD WALKER,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, WIENER, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

The University of Houston found two former students, Ryan McConnell

and Natalie Plummer, to have violated the University’s sexual misconduct

policy. After two unsuccessful administrative appeals, McConnell and

Plummer were ultimately expelled. McConnell and Plummer then sued the

University and two University officials, alleging that they were denied

constitutional due process and were discriminated against in violation of

Title IX. The district court granted summary judgment to the University and

the individual defendants, holding that no due process violation occurred and

that the individual defendants were entitled to qualified immunity. The

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district court dismissed the Title IX claims under Rule 12(b)(6). Finding no

reversible error, we affirm.

I

McConnell and Plummer were students at the University of Houston in

2011. On the night of November 19, 2011, McConnell met, for the first time,

“Female UH Student” at a bar in Houston. Both McConnell and Female UH

Student became intoxicated. They were ejected from the bar for disruptive

behavior and walked to McConnell’s nearby dorm room. There, they engaged

in sexual activity, but neither can remember exactly what occurred.

Later that evening, McConnell’s girlfriend (now wife), Plummer,

appeared at his dorm room and found McConnell and Female UH Student,

both naked and unconscious on the floor. Plummer yelled expletives and took

a photo of the two, which she posted on Facebook but removed sometime later.

Plummer also made two brief videos. In one, the “Dorm Room Video,” a drowsy

McConnell appears to fondle the unresponsive Female UH Student as she lies

on the dorm room floor and Plummer crudely berates him. After McConnell

stands up, Plummer focuses the camera on Female UH Student’s vagina and

yells several lewd statements, including “Fucking yeah, yeah. Fucking get it,

get it. Fucking get that pussy, bitch!” Simultaneously, slapping sounds can be

heard in the background. In the other, the “Elevator Video,” Plummer films

Female UH Student, who is still fully naked, lying on the dormitory’s

communal hallway floor. Female UH Student stands up and walks toward

Plummer, and Plummer leads the nude Female UH Student into an elevator

and sends it to the lobby. Voices can be heard speaking throughout the video,

but the precise statements are often unclear. Plummer later showed the videos

to her friends and shared the videos and photo electronically.

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Other students found Female UH Student lying naked in the elevator,

and they contacted University police. A Sexual Assault Nurse examined

Female UH Student and found injuries consistent with sexual assault. Police

investigated the incident, but did not criminally charge McConnell or

Plummer.

On February 12, 2012, Female UH Student submitted a complaint to the

University alleging that she was a victim of sexual assault. Richard Baker, the

Vice President of the University’s Office of Equal Opportunity Services (EOS),

notified McConnell that EOS was investigating the incident. Thereafter,

McConnell and Plummer met with Baker to discuss the incident and provide

their side of the story. At her meeting with Baker, Plummer presented the

photo she took of McConnell and Female UH Student, as well as the Elevator

Video. Plummer did not disclose the Dorm Room Video. Based on the evidence

gathered, the University did not proceed with disciplinary actions at that time.

More than a year and a half later, however, the University received a copy of

the Dorm Room Video from the Harris County Sherriff’s Office and then

decided disciplinary proceedings were warranted.

The University provided both McConnell and Plummer with a formal,

written declaration of the various allegations against them on September 30,

2013. 1 Each student retained counsel, who formally responded to the charges

and accompanied McConnell and Plummer to meetings with Baker. McConnell

reported that he remembered nothing after he and Female UH Student arrived

at his dorm room but denied sexually assaulting her. Plummer insisted that

her actions were motivated by anger at her boyfriend, not an attempt to

1At some point, Female UH Student decided not to pursue her complaint, and thus

the University was the “Complainant” in both proceedings as provided for by the University’s

procedures.

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encourage him to assault Female UH Student. She also asserted that Female

UH Student, when awakened, was pressing to “sex” her. 2

After completing his investigation, Baker authored a report finding that

McConnell “violated the sexual assault and attempted sexual assault

provisions . . . when he engaged in sexual activity with [Female UH Student]

on November 19, 2011, without her consent.” 3 Baker also found that Plummer

“facilitated/encouraged the sexual assault of another [UH] student[,]”

“electronically recorded the sexual activity of another [UH] student and then

shared that video . . . without that student’s permission[,]” and “made lewd,

lecherous and humiliating comments of a sexual nature against another [UH]

student.”

Pursuant to the University’s procedures, each student appealed Baker’s

findings to a four-person panel of University personnel. The panels, tasked

with upholding or rejecting EOS’s findings based on a preponderance of the

evidence standard, held separate appeal hearings for McConnell and Plummer.

Neither student attended the other’s full hearing, although Plummer testified

as a witness at McConnell’s hearing. Baker, an attorney, presented his findings

to the panel, including by testifying about his investigation and providing a

packet of investigatory materials. He called two witnesses at McConnell’s

hearing—two University police officers who responded to and investigated the

2 The dissent observes that Female UH Student “was never investigated for her

lascivious advances toward Plummer.” Plummer never submitted a formal complaint to EOS,

which would have required EOS to intitiate investigative processes.

3 “Sexual activity” as defined by the University’s 2013 Sexual Misconduct Policy

includes “any intentional contact with the breasts, buttock, groin, or genitals, or touching

another with any of these body parts, or making another touch the Complainant or

themselves with or any of these body parts; and any intentional bodily contact in a sexual

manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or

other orifice.”

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incident—and none at Plummer’s hearing. An additional University EOS

attorney was present at each hearing to advise the panel.

McConnell’s and Plummer’s attorneys attended and participated in the

hearings. Although the University’s procedures explicitly allow a student’s

attorney only a minor role as an “adviser” at the appeal hearing, in this case,

the University allowed McConnell’s and Plummer’s attorneys to participate

more fully, including at times by examining and cross-examining witnesses

and making statements to the panel. Additionally, McConnell’s and Plummer’s

attorneys drafted and submitted formal responses to the University’s

allegations and met with University officials on several occasions to discuss

the evidence against the plaintiffs.

McConnell and Plummer each made opening and closing arguments,

testified, presented witnesses, cross-examined witnesses, and raised legal and

factual objections to the panel. The University’s procedures explicitly allow

cross-examination of witnesses only through the submission of written

questions. Here, however, the panels frequently allowed all parties (or their

attorneys) to question witnesses (including Baker) in person at the hearing.

McConnell and Plummer were informed of the investigatory evidence several

days before each hearing, although some identities were redacted from

materials based on educational privacy concerns. At each hearing, the panel

was shown the Dorm Room and Elevator Videos, and all parties offered

interpretations of the videos’ contents. Female UH Student was not deposed

and did not appear or testify at either hearing. Neither Baker nor any other

witness testified to the substance of any conversations with Female UH

Student about her memory of the night, and Female UH Student’s original

complaint—which was among the materials supplied to the panels—stated

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that she did not remember anything that occurred after she arrived at the bar

the night of the incident.

Both hearing panels upheld Baker’s findings. McConnell and Plummer

then appealed to Richard Walker, the University’s Vice President and Vice

Chancellor for Student Affairs and Enrollment Services, as allowed by the

University’s procedures. In September 2014, Walker denied these further

appeals. McConnell and Plummer were expelled and banned from the

University and any activities connected with it. 4 The disciplinary notations

were, however, removed from their official transcripts.

In this lawsuit challenging their discipline, McConnell and Plummer

complain that the University retroactively applied its 2013 Misconduct Policy

to their 2011 conduct. They also assert that the University’s hearing

procedures failed to give them adequate notice of the adverse evidence, denied

them confrontation rights against Female UH Student, and limited cross-

examination to written questions. Finally, they charge that Baker’s multiple

roles created impermissible conflicts. These deficiencies, they allege, deprived

them of constitutional due process. 5

The district court, in a 36-page opinion relying on Supreme Court and

Fifth Circuit law, concluded that the process offered to McConnell and

Plummer was constitutionally sufficient. Plummer v. Univ. of Hous., No. 4:14-

CV-2959, 2015 WL 12734039 (S.D. Tex. May 28, 2015). McConnell and

Plummer appealed. We affirm.

4 McConnell graduated from the University before his sanction was imposed.

5 The dissent criticizes the University’s use of a “preponderance of the evidence”

standard for the panels’ review of Baker’s initial findings. McConnell and Plummer, however,

do not challenge this aspect of their proceedings on appeal.

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II

“It is not the role of the federal courts to set aside decisions of school

administrators which the court may view as lacking in wisdom or compassion.”

Wood v. Strickland, 420 U.S. 308, 326 (1975); see also Davis ex rel LaShonda

D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999) (“[C]ourts should

refrain from second-guessing the disciplinary decisions made by school

administrators.”). “A university is not a court of law, and it is neither practical

nor desirable it be one.” Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 n.1 (6th

Cir. 2005) (citation omitted). Ultimately, courts must focus on “ensuring the

presence of ‘fundamentally fair procedures to determine whether the

misconduct has occurred.’” Id. at 634 (quoting Goss v. Lopez, 419 U.S. 565, 574

(1975)).

Generally, the amount of process due in university disciplinary

proceedings is based on a sliding scale that considers three factors: (a) the

student’s interests that will be affected; (b) the risk of an erroneous deprivation

of such interests through the procedures used and the probable value, if any,

of additional or substitute procedural safeguards; and (c) the university’s

interests, including the burden that additional procedures would entail. See

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In Goss v. Lopez, the Supreme

Court held that an informal give-and-take between a high school student and

the administration afforded sufficient process preceding a temporary

suspension. 419 U.S. at 584. The Court specified, however, that “[l]onger

suspensions or expulsions for the remainder of the school term, or

permanently, may require more formal procedures.” Id. This court has held

that “due process requires notice and some opportunity for hearing before a

student at a tax-supported college is expelled for misconduct.” Dixon v. Ala.

State Bd. of Educ., 294 F.2d 150, 158 (5th Cir. 1961). “[T]he interpretation and

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application of the Due Process Clause are intensely practical matters and . . .

‘the very nature of due process negates any concept of inflexible procedures

universally applicable to every imaginable situation.’” Goss, 419 U.S. at 578

(alteration omitted) (quoting Cafeteria Workers v. McElroy, 357 U.S. 886, 895

(1961)). “The nature of the hearing should vary depending upon the

circumstances of the particular case.” Dixon, 294 F.2d at 158.

Here, the first and third Mathews factors are easily identified. On the

one hand, McConnell and Plummer have a liberty interest in their higher

education. See Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929–

30 (Tex. 1995) (recognizing a liberty interest in graduate higher education

under the Texas Constitution); accord Dixon, 294 F.2d at 157 (“The precise

nature of the private interest involved in this case is the right to remain at a

public institution of higher learning in which the plaintiffs were students in

good standing.”). 6 The sanctions imposed by the University could have a

“substantial lasting impact on appellants’ personal lives, educational and

employment opportunities, and reputations in the community.” Doe v.

Cummins, 662 F. App’x 437, 446 (6th Cir. 2016) (unpublished) (citing Goss, 419

U.S. at 574–75). On the other hand, the University has a strong interest in the

“educational process,” including maintaining a safe learning environment for

all its students, while preserving its limited administrative resources. See Goss

419 U.S. at 580, 583; see also Gorman v. Univ. of Rhode Island, 837 F.2d 7, 14–

15 (1st Cir. 1998) (“Although the protection of [a student’s private interest]

would require all possible safeguards, it must be balanced against the need to

6 Texas has not recognized a property interest in graduate higher education. Than,

901 S.W. 2d at 930 n.1.

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promote and protect the primary function of institutions that exist to provide

education.”). 7

Applying the second Mathews factor—the risk of erroneously depriving

McConnell and Plummer’s interests through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards—the

unique facts of this case render it unnecessary that we draw any determinative

line regarding sufficient procedures in state university disciplinary cases.

McConnell and Plummer received multiple, meaningful opportunities to

challenge the University’s allegations, evidence, and findings. In light of the

graphic conduct depicted in the videos and photo—which the panels viewed for

themselves before affirming the University’s findings—further procedural

safeguards would not have lessened the risk of an erroneous deprivation of

McConnell and Plummer’s interests or otherwise altered the outcome. See

Mathews, 424 U.S. at 335; see also Flaim, 418 F.3d at 639–43 (holding that

additional procedures were not necessary in case without significant factual

disputes); Cummins, 662 F. App’x at 446–451 (finding students accused of

sexual assault received adequate due process in university disciplinary

hearings where, “although the procedures employed by [the university] did not

rise to the level of those provided to criminal defendants,” students received an

7 The dissent narrowly characterizes the University’s interest as “impartially

adjudicating quasi-criminal sexual misconduct allegations.” Although it is true that the

University is interested in providing a fair disciplinary process, the Supreme Court has

emphasized that “[a] school is an academic institution, not a courtroom or administrative

hearing room.” Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 88 (1978); see also

Goss, 419 U.S. at 580, 583 (“[F]urther formalizing the suspension process and escalating its

formality and adversary nature may not only make it too costly as a regular disciplinary tool

but also destroy its effectiveness as part of the teaching process.”); Gorman, 837 F.2d at 15

(“[I]t is no exaggeration to state that the undue judicialization of an administrative hearing,

particularly in an academic environment, may result in an improper allocation of resources,

and prove counter-productive.”).

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“opportunity to be heard at a meaningful time and in an meaningful manner”

(quoting Mathews, 424 U.S. at 333)); cf. Dailey v. Vought Aircraft Co., 141 F.3d

224, 230 (5th Cir. 1998) (“There may be cases of such gross and outrageous

conduct in open court as to justify very summary proceedings for an attorney’s

suspension or removal from office, but even then he should be heard before he

is condemned.” (internal quotation omitted)); Scott v. Harris, 550 U.S. 372,

380–81 (2007) (recognizing that the existence of undisputed video evidence,

which discredited the plaintiff’s version of events, justified summary

judgment). 8 Thus, we hold that McConnell and Plummer did not meet their

summary judgment burden to demonstrate a genuine factual dispute that the

process surrounding their disciplinary cases was constitutionally defective.

McConnell and Plummer argue several potential violations of due

process standards. They assert inadequate notice of the standards of conduct

because the University’s sexual harassment/misconduct policy was changed

between 2011, when the incident occurred, and 2013, when they were formally

accused. They contend the investigation against them was not full and fair,

that Baker’s role was suffused with conflicts and bias against them, that there

8 The dissent criticizes our reliance on Flaim and Cummins. Flaim supports our

decision not because it involved identical circumstances (it did not), but because it

demonstrates that the amount of process constitutionally required in state university

disciplinary proceedings will vary in accordance with the particular facts of each case. See

418 F.3d at 629 & n.8 (“It is because of the unique facts of this case that we find the

procedures used by Medical College of Ohio adequate.”). Cummins, which we observe for its

persuasive analysis, arguably is distinguishable by a feature that would suggest more process

was due those students than McConnell and Plummer: the sexual assault victims in

Cummins testified at the accused students’ hearings and the students were allowed limited

cross-examination only by submitting written questions to the panel. 662 F. App’x at 439–

442 (one of the accused students was precluded from cross-examining his accuser entirely).

In rejecting the students’ challenge to this alleged procedural flaw, the Cummins court

explained that “[a]ny marginal benefit that would accrue to the fact-finding process by

allowing follow-up questions in appellants’ . . . hearings is vastly outweighed by the burden

on [the university].” Id. at 448.

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was an “absence of direct evidence,” and that they were denied confrontation

of the victim and effective cross-examination. Each of these claims will be

briefly discussed.

The claim that a standard of misconduct was retroactively imposed on

McConnell and Plummer is unsupportable on the facts of this case. Their

conduct, as detailed in the photo and two videos, violated the University’s

Interim Sexual Assault Policy (effective in November 2011), which prohibited

sexual assault as “the touching of an unwilling person’s intimate

parts . . . through the use of the victim’s mental or physical helplessness of

which the accused was aware or should have been aware.” The policy also

prohibited “. . . sexual misconduct which is lewd, exhibitionistic or

voyeuristic . . . [and] forbids . . . any act which demeans, degrades, or disgraces

any person . . . .” The University’s Interim Sexual Harassment policy (effective

in November 2011) prohibited “the use of sexually oriented

photos . . . unrelated to instruction and/or the pursuit of knowledge.” 9 The

conduct captured in the videos and photo also violated the more broadly

worded 2013 Sexual Misconduct Policy, which encompassed the following

violations: (facilitating) sexual assault; taking abusive sexual advantage of

another; and non-consensual electronic recording and transmitting sexual

images without the knowledge and consent of the parties involved. As applied

to this conduct, the charged violations are neither vague nor outside the

legitimate purview of the policies.

McConnell and Plummer also assert that they were denied confrontation

of Female UH Student and the opportunity to effectively cross-examine

9Plummer’s posting of the photo to Facebook and sharing the videos with her friends

would constitute sexual harassment under the 2011 policy, as would her on-video remarks

about Female UH Student.

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adverse witnesses. This case does not require that we determine whether

confrontation and cross-examination would ever be constitutionally required

in student disciplinary proceedings. The unique facts of this case demonstrate

no procedural deficiency in this regard. The University’s case did not rely on

testimonial evidence from Female UH Student. Indeed, it is undisputed that

Female UH Student remembered little about the incident, and no one testified

to the substance of any conversations with her about her memory of the night.

Rather, the primary evidence Baker presented to the panels were the videos

and photo, taken and distributed by Plummer. The conduct depicted in the

videos and photo—combined with Plummer’s subsequent distribution and

publication—was sufficient to sustain the University’s findings and sanctions.

See Mathews, 424 U.S. at 335 (courts must weigh whether further procedural

safeguards would have lessened the risk of an erroneous deprivation or

otherwise altered the outcome). We emphasize that McConnell and Plummer

do not argue that Female UH Student’s testimony or cross-examination would

have suggested that she consented to the degrading and humiliating depictions

of her in the videos and photo, nor that such testimony could have otherwise

altered the impact of the videos and photo. 10 See Flaim, 418 F.3d at 641 (citing

Winnick v. Manning, 460 F.2d 545, 549 (2d. Cir. 1972)) (concluding that cross-

examination of arresting officer was not essential to due process in medical

student’s disciplinary hearing when the case did not turn on credibility of

testimony and plaintiff was unable to identify any significant benefits that

cross-examination would have provided). Further, because McConnell and

10Plummer contends that Female UH Student sexually harassed her by repeatedly

asking to “sex her.” This disputed allegation, if true, would at best demonstrate independent

misconduct, not a defense to Plummer’s own actions.

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Plummer do not challenge the authenticity of the videos and photo, it does not

makes sense to criticize an “absence of direct evidence.”

McConnell and Plummer’s claims that the University failed to provide

adequate notice of adverse evidence and that Baker’s multiple roles suffused

the proceedings with bias are similarly unpersuasive. Applying the second

Mathews factor, even if the University could have provided notice further in

advance of the hearings of the identities of relevant witnesses and other

evidence, the ultimate disciplinary decisions were conclusively supported by

the videos and photo, about which McConnell and Plummer had full

knowledge. See Mathews, 424 U.S. at 335. McConnell and Plummer do not

show how more timely knowledge of the adverse evidence could have aided in

their defense. See id. Likewise, McConnell and Plummer have not

demonstrated that Baker’s dual roles amount to a constitutional violation.

They argue that Baker’s dual role as victim advocate and investigator

prevented him from impartially investigating the incident, and that EOS’s role

in advising the panel created a conflict of interest. 11 But McConnell and

Plummer fail to show how any of these alleged impermissible conflicts

undermined the integrity of their proceedings. Baker relied primarily on the

videos and photo to support his findings before the panel, and there is nothing

in the record or offered by McConnell and Plummer to suggest that a different

11 At the hearings, Baker offered interpretations of the graphic evidence, as well as

legal argument about how the University’s Sexual Misconduct Policy should be interpreted

and applied to that evidence. McConnell and Plummer (on their own and through their

attorneys) argued their own interpretations of the video and photo evidence and often

vigorously contested the analysis offered by Baker. At both hearings, the separate EOS

attorney serving as panel adviser counseled the panel members that they were free to

interpret the video and photo evidence themselves and draw their own conclusions about the

import of that evidence. This separate EOS attorney adviser also responded to panel

questions regarding the meaning and application of the University’s Sexual Misconduct

Policy.

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investigator would have uncovered information diminishing the significance of

that graphic evidence to the initial findings. See Mathews, 424 U.S. at 335; cf.

Baran v. Port of Beaumont Nav. Dist. of Jefferson Cty., 57 F.3d 436, 446 (5th

Cir. 1995) (“[Where a]llegations of bias based on the prejudgment of the facts

or outcome of a dispute generally stem from the fact that an administrative

body or hearing officer has dual roles of investigating and adjudicating

disputes and complaints . . . the honesty and integrity of those serving as

adjudicators is presumed.” (citing Withrow v. Larkin, 421 U.S. 35, 47 (5th Cir.

1975))). Notably, the separate EOS attorney advisor explicitly instructed the

panels that they were free to disagree with the interpretations of the evidence

offered by the parties, including Baker.

We have carefully reviewed the record, and we hold that the process

Appellants received was sufficient. It follows that the question of qualified

immunity for the individual defendants becomes moot. Again, we emphasize

that we do not suggest a constitutional “floor” for state university disciplinary

procedures. Whether a state university has provided an individual student

sufficient process is a fact-intensive inquiry and the procedures required to

satisfy due process will necessarily vary depending on the particular

circumstances of each case. See Dixon, 294 F.2d at 158. As we noted at the

outset, the Supreme Court has admonished that “[i]t is not the role of the

federal courts to set aside decisions of school administrators which the court

may view as lacking in wisdom or compassion.” Wood, 420 U.S. at 326; see also

Davis, 526 U.S. at 648 (“[C]ourts should refrain from second-guessing the

disciplinary decisions made by school administrators.”).

III

We now turn to McConnell and Plummer’s argument that the district

court erred in dismissing their Title IX claims. The district court carefully

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articulated the principles governing dismissals under Fed. R. Civ. Pro. 12(b)(6)

for failure to state a claim and for McConnell and Plummer’s claims that the

University and individual defendants should be liable for sex discrimination

against them under Title IX. 20 U.S.C. § 1681(a). We find no error in the

district court’s dismissal.

We review the dismissal and the district court’s related conclusions of

law de novo. Dehoyos v. Allstate Corp., 345 F.3d 290, 294 (5th Cir. 2003).

Briefly, McConnell and Plummer were required to plead facts asserting a

plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The

University, as a recipient of federal funding, can be held liable for intentional

discrimination on the basis of sex or for deliberate indifference to

discrimination against or harassment of a student on the basis of sex. Jackson

v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). 12

According to the Second Circuit, a university can face Title IX liability

for imposing discipline where gender is a motivating factor for the decision

under two general theories. Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir.

1994). In the first instance, the claim is that the charged student (plaintiff) was

innocent and wrongly found to have committed an offense. Id. The second

instance alleges selective enforcement, i.e., that regardless of the student’s

culpability, the severity of the penalty and/or the university’s decision to

initiate proceedings was affected by the charged student’s gender. Id. More

recently, the same court held a student’s case sufficient to proceed under Title

IX where a male student alleged himself innocent of engaging in

nonconsensual sex with a female student. Doe v. Columbia Univ., 831 F.3d 46,

12 Liability under Title IX does not extend to school officials, teachers and other

individuals. Davis, 526 U.S. at 640–43. Hence, McConnell and Plummer do not appeal the

dismissal of the University administrators.

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50, 53, 59 (2d Cir. 2016). He further alleged procedural bias and improprieties

in the university’s discipline process. Id. at 56–59. He also alleged that he was

singled out because Columbia University was in the midst of a public campaign

criticizing its alleged weak response to female students’ complaints of sexual

assaults by males. Id. at 50–51, 53, 57–58. McConnell and Plummer and the

University each rely on the theories adopted in Yusuf, so we need not speculate

on any other possible theories of Title IX liability.

McConnell and Plummer’s allegations here rest on selective enforcement

and deliberate indifference to their rights. With regard to selective

enforcement, they urge that the University was motivated by gender bias in

favor of Female UH Student. They assert essentially that McConnell and

Female UH Student were in pari delicto, in that both had passed out and each

engaged in sexual conduct with another extremely intoxicated individual.

Plummer chides the University for not taking up her charge of misconduct

against Female UH Student for pressing to “sex” her. We agree, however, with

the district court’s assessment of the undisputed facts: the photo and graphic

videos, taken and later exhibited by Plummer, show McConnell touching

Female UH Student in private areas. Female UH Student is unresponsive and

inactive. Female UH Student was found naked in an elevator and taken to the

hospital for sexual assault testing. The University’s discipline was predicated

on what the two charged students did, and during the discipline process they—

a male and a female—were treated equally. There is no sound basis for an

inference of gender bias. 13

13 McConnell and Plummer assert that the district court should not have awarded the

University “summary judgment” based on the University’s list of 39 sexual harassment

investigations conducted from 2010 forward, which revealed that nearly all involved male

accused students and only 3 involved male accusers. The district court did not address this

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McConnell and Plummer tersely assert that the University was

deliberately indifferent to the constitutional insufficiency of the procedures it

employed in sexual misconduct discipline cases. Although the University may

have been better advised in a number of procedural respects, there is a stark

contrast between McConnell’s and Plummer’s culpability and case procedures

applied to them and the allegations of student innocence and official refusal to

conduct a thorough investigation in Columbia Univ., 831 F.3d at 49–50, 52–

53, 56–57. Deliberate indifference to constitutional rights is a very high

standard of misconduct. See Sanches v. Carrollton-Farmers Branch Ind. Sch.

Dist., 647 F.3d 156, 169–70 (5th Cir. 2011). As the district court held, the

pleadings here do not meet that standard.

IV

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

list, and we need not do so except to note that the same list shows that at least 41% of the

investigations resulted in EOS making “no finding” against the accused.

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EDITH H. JONES, Circuit Judge, dissenting:

With due respect to my colleagues’ refusal to set a “constitutional floor”

the students’ procedural due process claims, I dissent. This case is the canary

in the coal mine, auguring worse to come if appellate courts do not step in to

protect students’ procedural due process right where allegations of quasi-

criminal sexual misconduct arise. Yes, there is undisputed graphic evidence—

videos and a photo of what transpired among McConnell, Plummer and the

Female Student on November 19, 2014. The panel’s conclusion seems driven

by the “unique facts” of graphic evidence to discount all of McConnell’s and

Plummer’s serious arguments. Put bluntly, the panel implies that because

they were guilty, they got enough due process.

The panel’s mode of analysis, in my view, is contrary to Carey v. Piphus,

435 U.S. 247, 265, 98 S. Ct. 1042, 1053 (1978). In Carey, high school students

were suspended for a few weeks without any adjudicative hearing; the

authorities did not challenge the lower courts’ liability determinations. Carey

makes clear that the result of a deprivation of liberty or property does not

justify the procedural means: “Even if respondents’ suspensions were justified,

and even if they did not suffer any other actual injury, the fact remains that

they were deprived of their right to procedural due process.” 435 U.S. at 265,

98 S. Ct. at 1053. Further, “[b]ecause the right to procedural due process is

‘absolute’ in the sense that it does not depend upon the merits of a claimant’s

substantive assertions, and because of the importance to organized society that

procedural due process be observed, we believe that the denial of procedural

due process should be actionable for nominal damages without proof of actual

injury.” 435 U.S. at 266, 98 S. Ct. at 1054 (citations omitted). See also

Zinermon v. Burch, 494 U.S. 113, 126 n.11, 110 S. Ct. 975, 983, 108 L. Ed. 2d

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100 (1990); Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012);

Caine v. Hardy, 943 F.2d 1406 (5th Cir. 1991) (en banc).

I would hold that several features of the process to which McConnell and

Plummer were subjected, most prominently the intermingled and inherently

conflicting duties of UH Title IX Coordinator Baker, violated their due process

rights to defend against quasi criminal charges of sexual assault and

facilitating sexual assault. I would reverse and remand for further

proceedings, which necessarily include the question of qualified immunity.

The background of this controversy, left unmentioned by the panel

although both parties cited and relied on it, is the promulgation by the United

States Department of Education, Office of Civil Rights, of a circular that

offered “guidance” on how universities must respond to complaints of sexual

misconduct on campus. See United States Department of Education, Office of

the Assistant Secretary for Civil Rights, Dear Colleague Letter,

(2011), available at http://www2.ed.gov/print/about/offices/list/ocr/letters/colle

ague-201104.html. The circular was not adopted according to notice-and-

comment rulemaking procedures; 1 its extremely broad definition of “sexual

harassment” has no counterpart in federal civil rights case law; 2 and the

procedures prescribed for adjudication of sexual misconduct are heavily

1The Dear Colleague Letter is currently being challenged in the U.S. District Court

for the District of Columbia on the grounds that it did not go through notice-and-comment

rulemaking, is in excess of the Department of Education’s statutory authority, and

constituted arbitrary and capricious agency action. See Complaint at 18-22, Doe v. Lhamon,

No. 1:16-cv-00158 (D.D.C. June 16, 2016), ECF. No. 1.

2Cf. Davis v. Monroe Cty. Bd. Of Ed., 526 U.S. 629, 634, 119 S. Ct. 1661, 1667 (1999)

(student-on-student sexual harassment actionable only where it is “so severe, pervasive, and

objectively offensive that it effectively bars the victim’s access to an educational opportunity

or benefit”); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993) (sexual

harassment must be “severe or pervasive enough to create an objectively hostile or abusive

work environment—an environment that a reasonable person would find hostile or abusive”).

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weighted in favor of finding guilt. Institutions of higher learning, like the

University of Houston, flocked to embrace the “guidance.” From a federal

government database, it is estimated that between 20,000 and 25,000

complaints of sexual misconduct have been filed based on the “guidance” and

thousands of students’ discipline cases adjudicated using procedural standards

far less demanding than those accorded most defendants. See K.C. Johnson &

Stuart Taylor, Jr., The Campus Rape Frenzy 9-10 (Encounter Books 2017). A

number of lawsuits challenging these procedures have survived preliminary

motions to dismiss, see Johnson & Taylor passim, as state and federal courts

exhibited concern about deficient procedures.

The University policies used in this case largely tracked the DOE

guidance letter. For this reason, it is a hollow claim that the procedures are

owed particular deference as products of “institutions of higher learning.”

These policies were developed by bureaucrats in the U.S. Department of

Education and thrust upon educators with a transparent threat of withholding

federal funding. Viewed as a whole, without the panel majority’s self-imposed

blinkers, the procedures raise serious questions about the sufficiency of the

University of Houston’s procedures to adjudicate fully and fairly charges of

sexual misconduct that will affect the students’ future lives as surely as

criminal convictions.

In part because the female had no recollection of these events, and she

denied anyone had touched or hit her, she declined to file a charge against the

students. Because of insufficient evidence, no criminal charges were filed.

Instead, McConnell and Plummer were investigated and charged by

Baker, the Vice President of the UH Office of Equal Opportunity Services

(EOS), with various violations of the UH sexual misconduct policy (2013

version). Baker’s official Title IX position placed him in the multiple, and

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inherently conflicting, roles of advocating for the female student, investigating

the events, prosecuting McConnell and Plummer, testifying as a witness at

their hearings, and training and advising the disciplinary hearing panels. By

a “more likely than not” standard, his investigative report found that

McConnell “violated the sexual assault and attempted sexual assault

provisions . . . when he engaged in sexual activity with another [sic] [female

UH student] on November 19, 2011, without her consent.” Under the same

standard, Baker found that Plummer “facilitated/encouraged the sexual

assault of another [UH] student.”

During each student’s separate hearings, Baker informed the panels that

their only job was to determine “by a preponderance of the evidence,” which he

carefully distinguished from the beyond-a-reasonable doubt standard, whether

the results of his investigation should be sustained. And lest it be overlooked,

Baker ludicrously tried to persuade the panels that the video portrayed

Plummer encouraging McConnell to rape the Female Student. 3 Baker, in

essence, assumed the roles of prosecutor, jury and judge, whose decision the

hearing panels were required to approve only by a preponderance of the

evidence.

Other aspects of the procedures are troubling. Although the students’

attorneys participated in the proceedings to some extent, they were not

permitted formally to represent their clients. Instead, McConnell and

3 The hearing transcripts demonstrate that Baker pressed his accusations beyond the

photo and videos, in the guise of “interpreting” the evidence, to assert that Plummer was

encouraging McConnell to attempt rape. When challenged about this during one hearing,

Baker responded: “I cannot interpret evidence, that [then?] I cannot be a Title IX coordinator

because that’s exactly what I’ve been hired to do. I’ve been hired to resolve these complaints

by interpreting policy and by interpreting evidence . . . .” A university discipline panel is no

place to adjudicate credible accusations of rape—and there were no such accusations here.

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Plummer each played lawyer against the real lawyer, University EOS Vice

President Baker. Thus, the students made opening and closing arguments,

testified, raised legal and factual objections to the panel, and “cross-examined”

witnesses. They were not fully informed of the investigatory evidence until

less than a week before each hearing; 4 even then, witness identities were

redacted based on “privacy” concerns. Most important, there was no

“confrontation” of the female student, who never appeared, was not deposed,

and was never investigated for her lascivious advances toward Plummer. 5

Based on the graphic video and photo evidence, it is unsurprising that

the hearing panels upheld Baker’s charges and the students’ appeals were

rejected. (The meaning of “sexual assault” in this context is open-ended but

could have covered the conduct here.) They were expelled and permanently

banned from UH and any activities connected with it. The disciplinary

notations were removed from their official transcripts, but that matters little

4The University’s procedures required only five business days’ prior notice of evidence

against the students.

5 UH’s brief defends its practices, noting that “the Department of Education has stated

that it ‘strongly discourages a school from allowing the parties to personally question or cross-

examine each other during a hearing on alleged sexual violence.’” The cited DOE guidance

goes on to explain that this is because “[a]llowing an alleged perpetrator to question a

complainant directly may be traumatic or intimidating, and may perpetuate a hostile

environment.” See United States Department of Education, Office for Civil Rights, Questions

and Answers on Title IX and Sexual Violence,

http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf, at p. 31. It then

recommends that schools limit cross-examination by pre-submitting questions to a hearing

board and that the hearing board screen the questions, which is what happened in this case.

Given the nature of charges against these students, limiting cross-examination to written

questions seems dubious. See Doe v. Brandeis Univ., 177 F.Supp. 3d 561, 604-05 (D. Mass.

2016) (“While protection of victims of sexual assault from unnecessary harassment is a

laudable goal, the elimination of such a basic protection for the rights of the accused raises

profound concerns.”).

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for the impact of the “sexual predator” stigma on their careers and

reputations. 6

The panel correctly cites this court’s decision in Dixon for the proposition

that the students have at least liberty interests protected under the due

process clause. 7 Dixon v. Alabama State Bd. Of Ed., 294 F.3d 150, 151 (5th Cir.

1961). 8 The panel concludes as a matter of law that the process offered to

McConnell and Ryan was constitutionally sufficient, relying in large part on

the “unique facts” and case law that has little in common with quasi criminal

charges of sexual assault that will mar these students indefinitely. Two Sixth

Circuit cases, one published and one unpublished, will be shown to be

particularly weak reeds. Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 639–43

6 Accord Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929-30 (Tex. 1995)

(“A medical student charged with academic dishonesty faces not only serious damage to his

reputation but also the loss of his chosen profession as a physician. The stigma is likely to

follow the student and preclude him from completing his education at other institutions.”).

7 Univ. of Tex. Med. Sch. at Hous., 901 S.W.2d at 929-30 (recognizing liberty interest

in graduate education under Texas Constitution). Property interests are creatures of state

law, and Texas has not recognized a property interest in graduate higher education. Id. at

930 n.1. Other courts have applied Dixon to property interests created by state law. See,

e.g., Barnes v. Zaccari, 669 F.3d 1295, 1303-04 (11th Cir. 2012).

8 Other federal courts have relied on Dixon for the proposition that protected interests

are implicated by university suspensions and expulsions. See, e.g., Barnes, 669 F.3d at 1305;

Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 633-36 (6th Cir. 2005); Pugel v. Bd. of Trs. of Univ.

of Ill., 378 F.3d 659, 663-64 (7th Cir. 2004); Gorman v. Univ. of R.I., 837 F.2d 7, 13-14 (1st

Cir. 1988); Nash v. Auburn Univ., 812 F.2d 655, 662-63 (11th Cir. 1987); Harris v. Blake,

798 F.2d 419, 422-23 (10th Cir. 1986); Henson v. Honor Comm. of U. Va., 719 F.2d 69, 73-74

(4th Cir. 1983); Sill v. Pa. State Univ., 462 F.2d 463, 469-70 (3d Cir. 1972); Winnick v.

Manning, 460 F.2d 545, 548-49 (2d Cir. 1972); Esteban v. Cent. Mo. State Coll., 415 F.2d 1077,

1089 (8th Cir. 1969); Doe v. Rector & Visitors of George Mason Univ., 149 F. Supp.3d at 615.

This court seems to have overlooked Dixon when deciding recent cases that, unlike

this one, involved discipline for academic reasons. See, e.g., Perez v. Texas A&M Univ. at

Corpus Christi, 580 Fed. App’x 244, 248 (5th Cir. 2014) (per curiam); Smith v. Davis, 507 F

Appx 359, 362 (5th Cir. 2013) (per curiam).

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(6th Cir. 2005); Doe v. Cummins, 662 F. App’x 437, 446–451 (unpublished) (6th

Cir. 2016).

In my contrary view, the process deployed against the students was

fundamentally flawed because of (a) the absence of a complaint by and evidence

from the Female Student; (b) the conflicting roles played by Baker; (c) the

preponderance standard for adjudicating quasi criminal conduct (for which no

actual criminal charges were brought), compounded by (d) the deference that

Baker insisted was due by the hearing panels to his position. 9 While it seems

incontestable that punishment of some kind was due for the students’

graphically depicted conduct, these watered-down elements of process

conspired to assure that Baker’s recommendations to throw the book at

McConnell and Plummer would be approved in full.

Put in terms of the Matthews balancing test, Matthews v. Eldridge,

424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976), the students’ interests in

preserving their educational status and reputations in the face of serious

sexual misconduct charges were compelling. 10 Second, the risk of erroneous

9I do not agree that the students lacked fair notice that their conduct was

unauthorized.

10 See Doe v. Rector & Visitors of George Mason Univ., 149 F. Supp.3d at 622

(“[P]laintiff's lost opportunity to continue with his post-secondary education, coupled with

the possibility that he may be unable to pursue meaningful educational opportunities

elsewhere while his name remains associated with sexual misconduct, inevitably affects

plaintiff's professional prospects. . . . And common sense suffices to understand that an

adjudication of responsibility for sexual misconduct carries a . . . powerful stigma,” such that

robust due process is required.); Brandeis Univ., 177 F. Supp.3d at 602 (“Certainly

stigmatization as a sex offender can be a harsh consequence for an individual who has not

been convicted of any crime, and who was not afforded the procedural protections of criminal

proceedings.”); id. at 573 (“If a college student is to be marked for life as a sexual predator, it

is reasonable to require that he be provided a fair opportunity to defend himself and an

impartial arbiter to make that decision.”); see also Smyth v. Lubbers, 398 F. Supp. 777, 797

(W.D. Mich. 1975) (“This case is among the most serious ever likely to arise in a college

context. In the interest of order and discipline, the College is claiming the power to shatter

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deprivation was exacerbated by (i) the Female Student’s failure to participate

or provide evidence in the disciplinary proceeding; (ii) Baker’s role as her

“advocate” while he also served as prosecutor, a witness, and legal adviser to

the hearing panel; (iii) the preponderance test used by Baker in his report,

along with the deference he claimed from the hearing panel; 11 and (iv) the

imbalance between the level of counsel participation allowed on each side.

Third, additional or substitute safeguards would have enhanced the

quality of factfinding and adjudication by providing a confrontation right if

material fact issues existed. Eliminating Baker’s role in advising and directing

the hearing panel would have enabled the panel to make independent findings

and receive disinterested advice on issues such as the meaning of “sexual

assault” and “facilitating sexual assault.” 12 Elevating the standard of proof to

clear and convincing, a rung below the criminal burden, would maximize the

accuracy of factfinding. Permitting counsel to represent the students would

have resulted in more efficient hearings; the parties and hearing panels spent

a lot of time sparring over trivial misunderstandings about procedure.

Adopting some or all of the foregoing safeguards would not significantly

impede the disciplinary process.

career goals, and to make advancement in our highly competitive society much more difficult

for an individual than it already is.”).

11 Commentators have noted that applying the civil preponderance standard to quasi

criminal charges seriously weakens due process for accused students. See, e.g., Ryan D. Ellis,

Mandating Injustice: The Preponderance of the Evidence Mandate Creates a New Threat to

Due Process on Campus, 32 Rev. Litig. 65 (2013); Barclay Sutton Hendrix, A Feather on One

Side, A Brick on the Other: Tilting the Scale Against Males Accused of Sexual Assault in

Campus Disciplinary Proceedings, 47 Ga. L. Rev. 591, 610-15 (2013); Stephen Henrick, A

Hostile Environment for Student Defendants: Title IX and Sexual Assault on College

Campuses, 40 N. Ky. L. Rev. 49, 62, 62 n.59 (2013).

12 The panel majority note that Baker’s assistant attorney served as adviser to the

disciplinary panel. They have no rejoinder, however, to the “graphic facts” I quoted that

demonstrate Baker’s intent to dominate the proceedings in every way.

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Fourth, the University’s interest lies in impartially adjudicating quasi

criminal sexual misconduct allegations. The University has no significant

expertise in this area; indeed, as noted above, its policies and procedures derive

directly from the Dear Colleague letter, not from inherently educational

decisions. Further, to the extent that UH eliminates confrontation and counsel

participation; allows one officer, Baker, to direct the investigatory,

prosecutorial and adjudicative process; and relies on the lowest standard of

proof, the integrity of its decisions may be questioned and discredited. 13

Even assuming that McConnell and Plummer forfeited a challenge to

their inability to confront the Female Student, the problem of Baker’s conflict

of interest cannot be overstated. Baker could not conscientiously “advocate”

for the Female Student while also conducting an impartial investigation of the

accused students. He could not both prepare a report and testify as a principal

witness while serving as the prosecutor and then insist that the adjudicatory

hearing panel agree with his “preponderance” evaluations of the evidence by

their preponderance standard. But he purported to do all these things. Even

the Dear Colleague letter admonishes universities that: “The Title IX

coordinator should not have other job responsibilities that may create a conflict

of interest. For example, serving as the Title IX coordinator and a disciplinary

hearing board member or general counsel may create a conflict of interest.”

Dear Colleague Letter at 7. To the extent Baker’s multiple roles substantially

lessened the hearing panels’ factfinding and adjudicatory autonomy, the

integrity of the process was compromised. See also Brandeis Univ., 177 F.Supp.

3d at 606 (“The dangers of combining in a single individual the power to

13 The majority criticize this description of the University’s interests as too narrow.

Had the University adopted a real, serious concern for its “educational mission,” it would not

have opened a bar on campus near the dorms that served shots to students. Alcohol abuse is

at the root of much student misconduct.

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investigate, prosecute, and convict, with little effective power of review, are

obvious. No matter how well-intentioned, such a person may have

preconceptions and biases, may make mistakes, and may reach premature

conclusions.”).

As a final note, the Sixth Circuit case law cited by the panel is inapposite.

In Flaim, the court upheld a medical student’s expulsion after he had pled

guilty to a felony criminal drug offense. While rejecting Flaim’s individual

procedural complaints, the court stated five times that the fact of a preexisting

criminal conviction rendered his case “quite different from the ordinary”

student discipline matter, 418 F.3d at 642-43, and “because of the unique

facts,” the court declined “to address whether these procedures would suffice

under other facts.” Id. at n. 8. Flaim, by its own terms, should not be relied

on in a case where sexual assault is alleged only by the University’s EOS Vice

President and no criminal charges, much less convictions, were pursued. The

Flaim court stated, “We strongly emphasize that a disciplinary hearing

involving a record of conviction is wholly different from a case involving

disputes of fact, even if the university believes the evidence to be

overwhelming.” Id. at n. 7.

The panel’s reliance on the Sixth Circuit’s unpublished opinion in Doe is

also curious. First, that the opinion is “unpublished” means it is not to be cited

as precedent. 6th Cir. R. 32.1; Crump v. Lafler, 657 F.3d 393, 405 (6th Cir.

2011) (en banc) (“Unpublished decisions in the Sixth Circuit are, of course, not

binding precedent.”). Second, the panel cites Doe for the uncontroversial

proposition that students there, subjected to a different set of procedures,

received an “opportunity to be heard in a meaningful time and in a meaningful

manner,” albeit not the level of protection that would have been offered to

criminal defendants. 662 F.App’x. at 446 (quoting Mathews, 424 U.S. at 333).

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Third, the Doe court found no due process violation in the denial of active

participation by the students’ advisors because the university had not itself

been represented by counsel in their disciplinary hearings. 662 F.App’x. at

448-49 (citing Flaim, 418 F.3d at 640). In this case, however, the students

were out-gunned by attorney Baker. Fourth, the Doe court rejected the claim

of official bias because any defects in the investigator’s report were “cured” by

the Administrative Review Committee’s “subsequent handling of appellants’

cases.” 662 F.App’x. at 450. Contrary to several critical facts before us, Doe

contains no indication that the allegedly biased investigator played any role in

the committee’s activity; the committee was bound by no formal standard of

review; and no claim of deference to the investigator’s report was made.

Finally, the students in the case received, respectively, a 3-year suspension

and a disciplinary suspension plus a research paper requirement, far more

lenient treatment than that accorded McConnell and Plummer, even though

the Doe defendants were found to have engaged in nonconsensual sex with

female students.

In sum, I do not take the position that the students must be afforded the

same procedural protections as criminal defendants. What drives my concern

is the close association between the charges levelled against them and actual

criminal charges. Sexual assault is not plagiarism, cheating, or vandalism of

university property. Its ramifications are more longlasting and stigmatizing

in today’s society. The University wants to have it both ways, degrading the

integrity of its factfinding procedures, while congratulating itself for vigorously

attacking campus sexual misconduct. Overprosecution is nothing to boast

about.

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Even though these students deserved punishment, they also deserved

more protective procedures given the seriousness of the charges. See Carey,

supra. Accordingly, I would reverse and remand for further proceedings.

29