In a lawsuit against the University of North Carolina and officials by a male student who was expelled and lost his scholarship after being found responsible for sexual misconduct against female classmates, the Fourth Circuit held that due process claims for damages were barred by sovereign or qualified immunity, but established “going forward” a right to cross-examination in the context of university disciplinary proceedings and allowed plaintiff to seek prospective injunctive relief for due process violations.
The disciplinary proceedings against the plaintiff began with a joint complaint filed by four female students (Jane Roes 1-4), alleging nonconsensual sexual interactions between March 2020 and January 2021. Ultimately plaintiff received separate hearings on all four matters and was found responsible on allegations by Roes 1 and 4 and not responsible on allegations by Roes 2 and 3. At the hearing on Roe 1’s claims, the complainant left in the middle of her cross-examination and the panel allowed her counsel to step in for her and answer questions on her behalf. Roe 4 did not show up for the hearing on her claims, and the hearing chair, “[c]iting university policies,…prohibited [plaintiff] from presenting evidence to impeach Roe 4’s credibility.”
The district court largely denied defendants’ motions to dismiss and allowed plaintiff to proceed with Title IX, due process, breach of contract, and certain other state law claims. Defendants appealed based on the collateral order doctrine, which provides for appellate jurisdiction over orders refusing to dismiss § 1983 and state law claims against officials claiming sovereign or qualified immunity. The Fourth Circuit reversed in part, affirmed in part, and dismissed in part.
First, the Court held that plaintiff’s claims against University of North Carolina entities were barred by state sovereign immunity, since those entities were arms of the state.
Second, the Court addressed the individual defendants’ argument that due process claims against them for damages were barred by qualified immunity. While plaintiff alleged a number of procedural errors (most of which the Court said did not rise to the level of a constitutional violation), the “foremost deficiency” was “the denial of his right to cross-examine his accusers.” The Court acknowledged that Doe had raised serious concerns but said that its prior cases did not clearly establish a due process right to cross-examination in the particular context of university disciplinary proceedings, and that sister circuits are divided on the point:
All that said, we cannot ignore the weighty interests implicated by cross-examination in adjudications of sexual misconduct allegations in higher education settings. We acknowledge that it can take real courage for victims of sexual misconduct to come forward and report their abuse. . .. Reliving the trauma of a sexual assault is an experience that no victim could possibly welcome. The thought of having a private violation of one’s bodily integrity aired in public cannot help but be unsettling. The prospect of facing cross-examination may operate as an additional discouragement to undergoing what is already a forbidding ordeal.
On the other side of the matter is the idea, embedded in the foundations of our adversarial system of justice, that cross-examination is “the greatest legal engine ever invented for the discovery of truth.” . . . Often at the heart of sexual misconduct disputes is the matter of consent. Witness credibility and recollection are crucial in such proceedings, and this renders tools for reaching the truth all the more important.
Though the Court concluded that the right to cross-examination in this context had not been sufficiently clear to deny the individual defendants qualified immunity, it did “hold [] the cross-examination opportunity Doe received here constitutionally deficient.” “[W]e underscore that, as a matter of procedural due process, an accused student must be ‘afforded the meaningful hearing to which they [are] entitled.’ . . . Going forward, cross-examination will materially assist in ensuring a meaningful hearing in higher-education disciplinary proceedings. This is particularly true where, as here, (1) the resolution of a disciplinary charge turns on credibility determinations, and (2) the potential sanctions are severe.” The Court cautioned, however, that universities retain discretion to impose “reasonable limits on cross-examination under the circumstances of a particular case,” and that real-time questioning through the panel could be sufficient if the hearing as a whole is “meaningful in substance and not just in form.” “Courts have no warrant to displace the discretion accorded those university adjudicators whose familiarity with the pertinent circumstances is shown to be matched by their fairmindedness.” This is a significant caveat, given that these cases usually allege lack of fairmindedness; the Court did not explain how fairmindedness can be shown or who bears the burden of proof on the issue.
Third, although the Court’s ruling precludes plaintiff from seeking damages for due process violations, the Court did permit him to proceed on claims for injunctive relief: vacating of the disciplinary decisions, expungement of his record, and reinstatement as a student in good standing. “Given the pejorative nature of the alleged misconduct and the severity of the actual sanction imposed,” the Court held plaintiff had “alleged a liberty interest sufficient to trigger procedural due process protections.” The Court also acknowledged that “an erroneous university record of a student’s permanent expulsion for sexual misconduct inflicts an ongoing injury for which the student can seek equitable relief.”
Finally, the Court denied the university’s request that it exercise pendent appellate jurisdiction and address the merits of the district court’s decision not to dismiss plaintiff’s Title IX claim. The university acknowledged that acceptance of federal funds operates as a waiver of sovereign immunity in a Title IX action, and the Court held that plaintiff’s Title IX claim was not “so interconnected with the individual defendants’ qualified immunity defense that pendent appellate jurisdiction is appropriate.” While the Court did not signal its view of the merits of the Title IX claim, its decision to allow the case to proceed is a victory for plaintiff, and plaintiff can use the Court’s opinion to bolster arguments that the significant flaws in the proceedings are evidence of gender bias.
Doe v. Univ. of N. Carolina Sys., No. 24-1301, 2025 WL 1006277 (4th Cir. Apr. 4, 2025).
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