Due process required at private institutions?

July 02, 2019

Higher Education Alert

Author(s): Kacey Houston Walker

A new district court decision applied a constitutional due process analysis, typically reserved for public institutions, to a private college. The court's analysis may have significant implications for institutions of higher education adjudicating claims of sexual misconduct.

A federal district court recently enjoined Rhodes College from enforcing its decision to expel a male student for violation of the college’s sexual assault policy. Applying Doe v. Baum, 93 F.3d 575 (6th Cir. 2018), the Western District of Tennessee extended the Sixth Circuit’s due process analysis—a constitutional concept typically applied to public institutions—to a private college. The court’s ruling notably links due process to the requirements of Title IX and once again underscores the significance of a respondent’s right to cross-examine key witnesses, including the complainant. We discuss some of the key aspects and implications of the ruling below.


The plaintiff in John Doe v. Rhodes College, Case No. 2:19-cv-02336-JTF-tmp (W.D. Tenn. June 14, 2019), a senior scheduled to graduate in the spring, was accused of sexual misconduct by a fellow undergraduate student. The female student alleged that the plaintiff raped her, and she reported the alleged sexual assault to the local police department after going to the hospital. The next day the college published a notice that a student reported a sexual assault on campus. The local police questioned students at the college and the following week a campus organization called “Culture of Consent” began protesting about topics related to sexual assault, including investigations into alleged assaults.

The college opened its own investigation into the complainant’s alleged sexual assault. The college’s Title IX investigator interviewed 16 witnesses, including the complainant and the plaintiff. After its investigation, the college held a hearing to determine whether the plaintiff violated the college’s sexual misconduct policy. At the hearing, the plaintiff denied any wrongdoing. The complainant did not attend the hearing, so plaintiff had no opportunity to cross-examine her. No witness testimony corroborated the complainant’s allegations through any direct evidence. Female witnesses were allowed to testify about hearsay statements allegedly made by the complainant, but the college chose not to call a male witness who was with the plaintiff the evening of the alleged assault. The hearing panel also did not question a female witness—whom the complainant implicated in the alleged sexual assault—about her involvement. In addition, the college’s Title IX coordinator, without notice, introduced new evidence into the proceeding, including documents related to the complainant’s medical examination.

The college, relying on the complainant’s testimonial evidence and statements given prior to the hearing, ultimately found the plaintiff responsible for sexual misconduct by a preponderance of the evidence. Consequently, the college expelled the plaintiff.

Plaintiff’s Title IX Lawsuit

The plaintiff filed an action alleging the college violated Title IX based on erroneous outcome and selective enforcement theories and sought to enjoin the college from both enforcing its decision to expel him and refusing to confer a degree. The court granted the plaintiff’s motion for a preliminary injunction in part, finding the plaintiff was likely to succeed on the merits of his Title IX claim based on an erroneous outcome theory, and therefore enjoined the college from expelling him. The court found, however, that the record did not reflect that the plaintiff had satisfied all graduation requirements, and thus denied his invitation to enjoin the college from conferring his degree.

Key Takeaways

First the Rhodes court’s ruling suggests that private institutions may be held to the equivalent of constitutional due process requirements. The decision continues the trend of finding that a respondent-plaintiff’s challenge to an institution’s disciplinary determination will likely succeed when the complainant did not testify at the hearing, and there was no opportunity for cross-examination, despite credibility being at stake. Following Sixth Circuit precedent from the public-university context, the Rhodes court found that in any disciplinary decision relying on testimonial evidence where credibility is in dispute and material to the outcome, “due process requires an assessment of credibility through cross-examination.” The Rhodes court also noted that the college resolved credibility issues without seeing or hearing from the complainant and held that the “nonappearance of the [complainant] appears to be a significant denial of due process.” The court reasoned the plaintiff demonstrated a likelihood of success in proving that the college violated his rights because due process requires cross-examination in cases where the credibility of the parties is at stake, and in particular, in cases involving alleged sexual misconduct.

Second, the Western District of Tennessee considered student protests on campus as a factor in determining whether the college’s disciplinary process was affected by gender bias. The court reasoned that the public attention generated by the protests and the social media of “Culture of Consent” directed towards fraternities—“which are necessarily male”—may have pressured the college to “confirm that it took sexual assault misconduct allegations seriously.” The court took a holistic approach in examining the culture on the college’s campus and noted that the student protests, plus the fact that institutions lose federal funding if found to violate Title IX, tended to support causal evidence of bias impacting the plaintiff’s specific proceeding.

Third, the court appeared to weigh the underlying evidence and second-guess the college’s credibility determinations. The court noted that the record “tends to show that [the college] credited exclusively female testimony” and “rejected all male testimony.” Therefore, the court found that the plaintiff’s allegations pled a plausible influence of gender bias and a violation of Title IX.

Looking Ahead

It remains to be seen whether the Rhodes decision is an outlier or marks a significant shift in the Title IX litigation landscape. If this case is a start of a trend in respondent lawsuits, it will signal that private institutions—not just public universities—must be prepared to defend against counts expressly premised upon the denial of due process rights. Increasingly, courts continue to express concerns about failures to provide respondents with full opportunities to be heard and cross-examine their accusers at a hearing. The Rhodes decision could signal an expansion of plausible Title IX claims that may survive beyond the motion to dismiss stage, proceed to often expansive and expensive discovery, and ultimately reach trial. If other courts adopt the Rhodes analysis, Title IX claims against private institutions will mirror procedural and substantive due process claims against public institutions.

We will continue to review and report on important developments in the evolving Title IX judicial playing field, especially pending the Department of Education’s ongoing review of comments to proposed Title IX regulations.

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