     Case: 15-20350   Document: 00514048076     Page: 1   Date Filed: 06/26/2017




                        REVISED June 26, 2017

        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
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that the individual defendants were entitled to qualified immunity. The
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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                                      No. 15-20350

       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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                                 No. 15-20350

EDITH H. JONES, Circuit Judge, dissenting:
       With due respect to my colleagues’ refusal to set a “constitutional floor”
for 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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                                          No. 15-20350

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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                                  No. 15-20350

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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                                       No. 15-20350

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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                                        No. 15-20350

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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                                        No. 15-20350

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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                                         No. 15-20350

(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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                                       No. 15-20350

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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                                       No. 15-20350

      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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                                  No. 15-20350

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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                                  No. 15-20350

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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                               No. 15-20350

     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
