Sixth Circuit upholds a trial court’s decision to abstain from hearing a challenge to an ongoing sexual misconduct disciplinary proceeding

June 19, 2017

Higher Education Alert

Author(s): Steven M. Richard, Laura B. Bacon, Eliza T. Davis

In this alert, we address a recent Sixth Circuit ruling upholding a trial court’s decision to abstain from addressing a male student’s constitutional challenges to a state university’s pending sexual misconduct disciplinary hearing.

Nationally, there has been a proliferation of lawsuits in which a student charged with sexual misconduct sues a college or university alleging a flawed or deficient disciplinary process. In such cases, a respondent may file suit during the pendency of the school’s disciplinary process and seek that a court enter a preliminary injunction to suspend or alter the investigation or disciplinary hearing. When faced with a request for such extraordinary equitable relief, a court must weigh the appropriateness of the judiciary interceding upon a school’s ongoing investigative and adjudicative processes.

In this alert, we address a recent Sixth Circuit ruling upholding a federal district court’s decision to abstain from addressing a male student’s constitutional challenges to a state university’s pending sexual misconduct disciplinary hearing. John Doe v. University of Kentucky, et al., No. 16-5170 (6th Cir. June 15, 2017). Both the district court initially and the Sixth Circuit in its appellate review applied the Younger-abstention doctrine prescribed by the United States Supreme Court in Younger v. Harris, 401 U.S. 37 (1971). The doctrine affords federal courts with the discretion to abstain from resolving constitutional claims when doing so would interfere with ongoing state proceedings (here, a sexual misconduct disciplinary process being conducted by the University of Kentucky (UK)).


UK investigated a complaint that a male student, “John Doe,” engaged in nonconsensual sexual activities with a female student. UK’s investigation determined that the allegations were supported by reasonable suspicion to justify a disciplinary hearing against Doe. The hearing panel found Doe responsible for sexual misconduct policy violations and assessed a one-year suspension. Doe filed an appeal to the University Appeals Board (UAB), which found violations of Doe’s due process rights and UK’s Code of Student Conduct due to an administrator’s withholding of critical evidence and questions from the hearing panel.

The hearing panel then conducted a second hearing, and again found that Doe had violated UK’s sexual misconduct policy. This time, the panel issued a five-year suspension. On appeal, the UAB again found procedural errors, including the improper partitioning of Doe and his advisors from the complainant during the hearing, denying Doe “supplemental proceedings” allowed under UK’s policy, and improper communications by the panel and an administrator with the complainant regarding the sanction to be imposed upon Doe. A third hearing was ordered.

On the eve of UK’s third hearing, Doe filed suit in United States District Court for the Eastern District of Kentucky. Doe asserted violations of his constitutional due process and equal protection rights as a student at a public university. Doe moved immediately for a temporary restraining order to stop the impending hearing. UK agreed to postpone the hearing and the district court denied Doe’s temporary restraining order motion as moot. The case continued with the consideration of Doe’s request for a preliminary injunction. In opposition, UK asserted that it agreed to new procedures to correct any due process concerns that arose during the first two hearings. Also, UK argued that the district court should not interfere with a pending disciplinary process and should abstain under the Younger-doctrine. The district court agreed that abstention was appropriate, and Doe filed an appeal to the Sixth Circuit.

The Sixth Circuit’s Analysis

At the outset, the Sixth Circuit addressed the applicability of the Younger-doctrine, which arose initially from “a desire to prevent federal courts from interfering with functions of state criminal proceedings.” The Supreme Court has expanded the doctrine beyond a case involving a criminal proceeding. Specifically, a federal court may abstain from hearing a constitutional challenge to an ongoing state enforcement proceeding that is “akin to a criminal prosecution.”

Accordingly, the threshold question for the Sixth Circuit was whether UK’s disciplinary hearing is “akin to a criminal prosecution.” The court concluded that, “while the proceeding may lack all the formalities found in a trial, it contains enough protections and similarities to qualify as ‘akin to a criminal prosecution’ for purposes of Younger abstention.” The Sixth Circuit reasoned that UK, a public university and state actor, initiated the disciplinary proceeding to determine whether Doe should be sanctioned, which could result in severe and lasting consequences including expulsion from UK and future career implications. The case against Doe involved the filing of a complaint, an investigation, notice of the charge and the opportunity to introduce witnesses and evidence. While UK’s process does not include the right to have legal counsel cross-examine witnesses or issue subpoenas like a criminal prosecution, the Sixth Circuit has recognized that school disciplinary proceedings require some level of due process. As a whole, UK’s disciplinary process in a sexual misconduct matter is “akin to a criminal prosecution” under the abstention analysis.

After finding that UK’s disciplinary proceeding fits within the scope of the Younger-abstention doctrine, the Sixth Circuit applied the three-factor test articulated by the Supreme Court to determine whether abstention should be exercised: (1) a state proceeding is currently ongoing, (2) the proceeding involves an important state interest, and (3) the proceeding will provide the federal plaintiff with adequate opportunity to raise his constitutional claims. The Sixth Circuit found that all three factors were met to support the district court’s abstention determination. First, UK intends to proceed with the third disciplinary hearing, so the process is ongoing. Second, the state institution has an interest in eliminating sexual assault on its campus and establishing a fair and constitutionally permissible disciplinary process. Third, Doe will have an adequate opportunity to raise his constitutional claims during the continuation of UK’s disciplinary process. The Sixth Circuit cited specifically to the fact that the first two findings of Doe’s responsibility were reversed on appeal because of due process flaws. UK has since instituted a new system that is designed to improve its process, which will afford Doe with the ability to raise his constitutional challenges. Doe can appeal again after the third hearing, and he can ultimately return to federal court after UK’s process has concluded.

Finally, even if abstention is warranted under the three above-stated factors, a plaintiff such as Doe may still show that a recognized exception to Younger applies such that a federal court should hear the constitutional challenge. The exceptions include bad faith, harassment or flagrant unconstitutionality of the state rule at issue. The Sixth Circuit concluded that none applied to prevent abstention. While Doe was subject to two flawed hearings and believed that UK was trying to make an example of him, the Sixth Circuit concluded that UK’s disciplinary process did not amount to a pattern of bad faith prosecution and harassment, especially as Doe succeeded in his appeals and UK will use improved procedures in the third hearing. Finally, the exception for “flagrant unconstitutionality” requires an extremely high showing that a state rule violates constitutional prohibitions in “every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” Doe failed to prove that UK’s policy is facially unconstitutional. The due process concerns during Doe’s first two hearings arose from the implementation of UK’s policy, not the policy itself.


The Sixth Circuit’s ruling pertains to abstention issues in a federal court lawsuit raising constitutional claims against a public university. But beyond its impact on similarly filed lawsuits, it offers insight worthy of consideration in any lawsuit in which a student seeks injunctive relief against a college or university’s ongoing disciplinary process. The Sixth Circuit’s analysis seems to have been impacted by the fact that UK’s appellate system identified flaws in the hearing process and the university committed to improvements in the upcoming third hearing, which minimized any urgency for judicial intervention. Courts are more likely to take the extraordinary judicial step of issuing injunctive relief where there are clear indicia suggesting unfairness in the manner in which a school’s disciplinary process is being conducted. Colleges and universities must carefully implement their Title IX polices in a prompt and equitable manner for both the complainant and respondent and evaluate their processes as they unfold, which will lead courts to exercise judicial restraint respecting the autonomy of schools to conduct their investigations and hearings in sexual misconduct matters.

Also, given the many pending lawsuits challenging sexual misconduct disciplinary proceedings, federal trial court rulings will increasingly reach circuit courts on appeal, as occurred in this case before the Sixth Circuit. The resulting appellate court rulings will have controlling precedential impacts within each circuit’s jurisdiction. To the extent that the federal circuits set differing precedents under Title IX or any applicable constitutional principles, such splits in the controlling law could ultimately result in United States Supreme Court review. We will continue to review and report on the evolving judicial playing field.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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