Doe v. Baum

• Decision Date: 05 January 2017
• Docket Number: Case Number 16–13174
• Citation: 227 F.Supp.3d 784
• Parties: John DOE, Plaintiff, v. David H. BAUM, Susan Pritzel, Tabitha Bentley, E. Royster Harper, Nadia Bazzy, Erik Wessel, University of Michigan, and Board of Regents of the University of Michigan, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

227 F.Supp.3d 784

John DOE, Plaintiff,
v.
David H. BAUM, Susan Pritzel, Tabitha Bentley, E. Royster Harper, Nadia Bazzy, Erik Wessel, University of Michigan, and Board of Regents of the University of Michigan, Defendants.

Case Number 16–13174

United States District Court, E.D. Michigan, Southern Division.

Signed January 5, 2017

227 F.Supp.3d 790

Benjamin I. Shipper, Irina Vaynerman, Deborah L. Gordon, Deborah L. Gordon Assoc., Bloomfield Hills, MI, for Plaintiff.

Brian M. Schwartz, Megan P. Norris, Miller, Canfield, Detroit, MI, David W. DeBruin, Jenner & Block LLP, Washington, DC, for Defendants.

OPINION AND ORDER DENYING PLAINTIFF'S MOTION AND RENEWED MOTION FOR PRELIMINARY INJUNCTION AND MOTIONS FOR EVIDENTIARY HEARING, AND GRANTING DEFENDANTS' MOTION TO DISMISS

DAVID M. LAWSON, United States District Judge

Plaintiff John Doe alleges in an amended complaint that he agreed under duress to withdraw from the University of Michigan with only one semester left to complete his degree, after he was found to

227 F.Supp.3d 791

have violated the school's Policy on Sexual Misconduct by Students. An appeal board assembled by the University's Office of Student Conflict Resolution (OSCR) determined that Doe had sexual relations with a freshman when Doe should have known that she was too drunk to be able to give consent. Doe filed a seven-count amended complaint in this Court against the OSCR appeal panel members, Office of Student Affairs personnel, the University, and its Board of Regents alleging various constitutional and statutory violations that occurred during the disciplinary proceedings, and seeking damages, attorney's fees, and an order reinstating him so he can complete his degree. The plaintiff has filed motions for temporary injunctive relief and the defendants have filed a motion to dismiss. The Court heard oral argument on December 8, 2016. Because the plaintiff was afforded all the protection to which he is entitled under the Due Process Clause, and he has not stated claims based on the First Amendment, the Equal Protection Clause, or various anti-discrimination statutes for which relief can be granted, the Court will deny the motions for a temporary injunction, grant the motion to dismiss, and dismiss the case.

I. Fact Summary

Plaintiff Doe enrolled in the University of Michigan in September 2013. He attended six semesters at the University through April 2016, earning a cumulative GPA of 3.95. He asserts that, before the events described in the complaint, he "had an excellent reputation, had no involvement with law enforcement, and was never disciplined by a school or employer." In January 2016, a female student filed a complaint with the University's Office of Institutional Equity. Her complaint stated that Doe sexually assaulted her by, among other things, manipulating her into performing oral sex on him, without her consent, after she became drunk at a party.

Christina Kline, an investigator with the University's Office of Institutional Equity (OIE), conducted a three-month investigation and interviewed 23 witnesses about the event, with the goal of determining whether the complainant was "incapacitated" at the time of the sexual contact, such that she could not, according to the University's policy, give valid consent to engage in the sex acts that occurred. On April 15, 2016, Investigator Kline issued a written report in which she concluded that the evidence she found did not show by a preponderance that Doe had engaged in any unwanted sexual activity with the complainant. The investigator also concluded that there was insufficient evidence to support a finding that the complainant was "incapacitated" and unable to give valid consent to the sexual contact that did occur.

The complainant appealed Investigator Kline's findings to the University's Office of Student Conflict Resolution, which, according to University policy, can engage in a limited scope review of sexual assault complaints resolved by the OIE. One of the grounds on which an OIE finding may be reversed is where the review panel determines that a "review of all available and relevant information indicates that the evidence clearly does not support the finding(s) and provides firm and definite support for modifying the original finding(s)." On May 25, 2016, the review panel issued a decision in which the panel observed that the OIE investigator had performed a "fair and thorough investigation," but the panel also concluded that the finding of no violation clearly was not supported by the information gathered in the investigation.

Doe contends that the review panel's decision was procedurally flawed and violated his due process rights because (1) the definition of "incapacitated" that was applied during the investigation and review

227 F.Supp.3d 792

of his case (later revised in a new policy effective July 2016) is "unconstitutionally vague"; (2) the review panel improperly conducted a "de novo review" of the record, rather than properly applying the "clearly erroneous" standard of review called for under the appeal policy; and (3) the review panel selectively considered only evidence that supported their reversal of the OIE investigator's findings, while ignoring other evidence in the record that the OIE investigator relied upon in reaching her conclusion that no violation had been established. Doe also contends that the review panel misconstrued or misstated comments in certain witness statements and relied upon "findings" supported only by speculation about the complainant's level of intoxication at the time of the events, rather than any information in the record or any scientific or medical basis. Doe also alleges that the review panel exhibited gender bias in favor of the female complainant by accepting as true all of the information supporting her account, but rejecting all information that supported the male respondent's account.

Finally, Doe alleges that one of the review panel members, defendant David Baum, was biased in favor of the complainant, due to his personal and professional relationship with Sarah Prescott, a partner in the law firm that represented the complainant in the appeal proceedings, and also with Ms. Prescott's spouse, J.J. Prescott, who is a tenured professor on the University's law school faculty. Doe asked for a reconsideration of the appeal by a different panel because of the conflict, but the University refused to reconsider or set aside the panel's decision.

On June 22, 2016, Doe was informed by University officials that if he, the complainant, and the officials could not reach an agreement as to a penalty for the policy violation, then a review officer would determine an appropriate penalty, which likely would be expulsion. But the University informed Doe that if he agreed to accept "permanent voluntary separation" as a penalty, then his transcript would not indicate that he was expelled for violating the sexual misconduct policy. Doe initially hesitated and submitted a response in which he "agreed" to leave the University voluntarily, but also stated that he felt he had been "forced to withdraw" under threat of being expelled and having his permanent transcript marred by a sexual misconduct violation. The University replied that it construed the response as an objection to the penalty and not an agreement. Doe then submitted a second statement of consent to the penalty, without the previously-stated qualification.

Notwithstanding the "agreed" resolution of the disciplinary complaint, Doe filed a complaint in this Court on September 1, 2016, seeking judicial review of the disciplinary proceedings and declaratory and injunctive relief absolving him of the misconduct allegations and commanding the University to allow him to enroll for classes and complete his degree. Doe originally sued several individual school officials who participated in the disciplinary proceedings. He later filed an amended complaint, which added as parties the University and its Board of Regents. The amended complaint raises claims that (1) the applicable definition of "incapacitated" in the University's sexual misconduct policy (which since has been revised) is "void for vagueness" (Count I); (2) the appeal process deprived Doe of his right to procedural due process because he had no meaningful opportunity for a fair hearing and review of his case by the appeal panel (Count II); (3) the University violated his rights under the First Amendment by denying him the opportunity to set forth his "objections" in his response to the penalty proposal (Count III); (4) the appeal panel discriminated against him on the basis of

227 F.Supp.3d 793

his sex, contrary to Title IX, by refusing fully and fairly to consider his side of the story (Count IV); and (5) the University's policy regarding sexual misconduct appeals had a disparate impact on Doe based on his sex, because students accused of sexual misconduct are not allowed to have an oral hearing before the appeal board, to pose questions to the complainant on the record, or to have certain other privileges inherent in a live hearing (Count V). The complaint also includes trailing claims for gender discrimination under Michigan's...