Doe v. Baum

• Decision Date: 07 September 2018
• Docket Number: No. 17-2213,17-2213
• Citation: 903 F.3d 575
• Parties: John DOE, Plaintiff-Appellant, v. David H. BAUM ; Susan Pritzel; Tabitha Bentley; E. Royster Harper; Nadia Bazzy; Erik Wessel; University of Michigan; Board of Regents of the University of Michigan, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

903 F.3d 575

John DOE, Plaintiff-Appellant,

v.David H. BAUM ; Susan Pritzel; Tabitha Bentley; E. Royster Harper; Nadia Bazzy; Erik Wessel; University of Michigan; Board of Regents of the University of Michigan, Defendants-Appellees.

No. 17-2213

United States Court of Appeals, Sixth Circuit.

Argued: August 1, 2018

Decided and Filed: September 7, 2018

Rehearing En Banc Denied October 11, 2018

COUNSEL ARGUED: Deborah L. Gordon, Deborah Gordon Law, Bloomfield Hills, Michigan, for Appellant. David W. DeBruin, Jenner & Block, LLP, Washington, D.C., for Appellees. ON BRIEF: Deborah L. Gordon, Irina L. Vaynerman, Deborah Gordon Law, Bloomfield Hills, Michigan, for Appellant. David W. DeBruin, Jenner & Block, LLP, Washington, D.C., Brian M. Schwartz, Miller, Canfield, Paddock, and Stone, P.L.C., Detroit, Michigan, for Appellees.

Before: GILMAN, GIBBONS, and THAPAR, Circuit Judges.

THAPAR, J., delivered the opinion of the court, in which GIBBONS, J., joined, and GILMAN, J., joined in part. GIBBONS, J. (pg. 588), delivered a separate concurrence. GILMAN, J. (pp. 588–93), delivered a separate opinion concurring in part and dissenting in part.

THAPAR, Circuit Judge.

Thirteen years ago, this court suggested that cross-examination may be required in school disciplinary proceedings where the case hinged on a question of credibility. Flaim v. Med. Coll. of Ohio , 418 F.3d 629, 641 (6th Cir. 2005). Just last year, we encountered the credibility contest that we contemplated in Flaim and confirmed that when credibility is at issue, the Due Process Clause mandates that a university provide accused students a hearing with the opportunity to conduct cross-examination. Doe v. Univ. of Cincinnati , 872 F.3d 393, 401–02 (6th Cir. 2017). Today, we reiterate that holding once again: if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder. Because the University of Michigan failed to comply with this rule, we reverse.

I.

John Doe and Jane Roe were students at the University of Michigan. Halfway through Roe's freshman and Doe's junior year, the two crossed paths at a "Risky Business" themed fraternity party. While there, they had a drink, danced, and eventually had sex. Two days later, Roe filed a sexual misconduct complaint with the university claiming that she was too drunk to consent. And since having sex with an incapacitated person (unsurprisingly) violates university policy, the administration immediately launched an investigation. Over the course of three months, the school's investigator collected evidence and interviewed Roe, Doe, and twenty-three other witnesses. Two stories emerged.

First, Doe told the investigator that Roe did not appear drunk and that she was an active participant in their sexual encounter. According to him, the night went something like this: after he and Roe had a drink, danced, and kissed at the party, the two decided to go upstairs to his bedroom. Once there, they kissed "vigorous[ly]" and eventually made their way onto his bed. R. 16, Pg. ID 332. After they jointly removed their clothing, he asked Roe if she wanted to have sex. She said, "Yeah," and the two proceeded to have intercourse followed by oral sex. Id. at Pg. ID 333–34. When they were done, they cuddled until Roe became sick and vomited into a trash can by Doe's bed. Doe rubbed her back for five or so minutes and then left to use the bathroom and talk with friends. By the time he returned, Roe was crying and another female student was helping her gather her things. He asked Roe if she was okay, but Roe's new companion told him to "[g]o away" and the two women walked out of the room. Id. at Pg. ID 335. At the time, he assumed that Roe was upset because he had left her alone after they had sex. He asserted that he had no reason to believe that she was drunk or that Roe thought any of his sexual advances were unwelcome.

Roe remembered the night differently. According to her, she was drunk and unaware of her surroundings when she and Doe went to his room. While kissing near the doorway, she told Doe "no sex" before she "flopped" onto his bed. Id. at Pg. ID 325–26. Without asking, Doe undressed her and had intercourse with her while she "laid there in a hazy state of black out." Id. at Pg. ID 326. And at some point, she passed out and woke up to Doe having oral sex with her. Afterwards, she felt a "spinning sensation" and fell back onto the bed. Id. at Pg. ID 327. Doe asked her if she was okay, and she told him that she was not. So Doe placed a trash can by the side of his bed and left the room. She proceeded to vomit into the trash can. Afterward, she attempted to find her clothes but could not get her bearings. Feeling a sense of "desperation and defeat," she tried to catch another female student's attention by making "vomit sounds." Id. It worked, and the female student ("Witness 2") helped Roe find her clothes, put them on, and get back to her dorm.

If Doe's and Roe's stories seem at odds, the twenty-three other witnesses did not offer much clarification. Almost all of the male witnesses corroborated Doe's story, and all of the female witnesses corroborated Roe's. For example, Doe's roommate said that Roe "didn't seem like she was hammered or that drunk," although he stated that he did not "want to speculate" about whether she had had some alcohol because he did not talk to her directly or "really interact with [her]" much. Id . at Pg. ID 339. Yet he mentioned that in his two interactions with her, he did not smell alcohol on her. Id. Doe's roommate further alleged that Roe and Witness 2 were just "rallying against a fraternity guy." Id. at Pg. ID 339–41. Another member of Doe's fraternity told the investigator that he saw Doe and Roe "making out" on the dance floor and there was no reason to suspect that either of them had too much to drink. Id. at Pg. ID 347. And two others stated that Roe did not appear drunk when she left Doe's room at the end of the night, although they indicated they had limited observations of Roe.

Roe's sorority sisters, on the other hand, reported that Roe seemed "more than a little buzzed" at the party because her eyes were "open but unfocused" and she "trail[ed] off at the end of sentences." Id. at Pg. ID 345–46. The female student who helped Roe leave the party told the investigator that she found Roe crying and "very drunk" in Doe's bed. Id. at Pg. ID 342–43. And two other friends provided that when Roe returned to her dorm that night, she sobbed on the floor of her room and said "she thought she'd been raped." Id. at Pg. ID 352.

Given the students' conflicting statements, the investigator concluded that the evidence supporting a finding of sexual misconduct was not more convincing than the evidence offered in opposition to it. The investigator did note, however, that Witness 2 might have been a more credible witness because she had no prior connection to Doe, Roe, or their respective Greek organizations. But because Witness 2 only observed Roe after the sexual encounter had ended, the investigator concluded that she could not address the relevant question—Roe's level of intoxication during the encounter or what signs of intoxication she manifested at that time. So after three months of thorough fact-finding, the investigator was unable to say that Roe exhibited outward signs of incapacitation that Doe would have noticed before initiating sexual activity. Accordingly, the investigator recommended that the administration rule in Doe's favor and close the case.

Roe appealed. She argued that the evidence did not support the investigator's findings and asked the university to reconsider. The case went up to the university's Appeals Board, and a three-member panel reviewed the investigator's report. After two closed sessions (without considering new evidence or interviewing any students), the Board reversed. Although the Board found that the investigation was fair and thorough, it thought the investigator was wrong to conclude that the evidence was in equipoise. According to the Board, Roe's description of events was "more credible" than Doe's, and Roe's witnesses were more persuasive. R. 6-5, Pg. ID 274–75. As a result, the university set the investigator's recommendation aside and proceeded to the sanction phase. Facing the possibility of expulsion, Doe agreed to withdraw from the university. He was 13.5 credits short of graduating.

Since then, Doe filed a lawsuit claiming that the university's disciplinary proceedings violated the Due Process Clause and Title IX. He argues that because the university's decision turned on a credibility finding, the school was required to give him a hearing with an opportunity to cross-examine Roe and adverse witnesses. He also maintains that the Board violated Title IX by discriminating against him on account of his gender. The university filed a motion to dismiss, which the district court granted in full. Doe now appeals, and we review de novo. Kottmyer v. Maas , 436 F.3d 684, 688 (6th Cir. 2006).

II.

To survive a motion to dismiss, a complaint must provide "a short and plain statement of the claim showing that the [plaintiff] is entitled to relief." Fed. R. Civ. P. 8(a)(2). A plaintiff shows that he is entitled to relief by "plausibly suggesting" that he can meet the elements of his claim. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). And a plaintiff's suggestion is plausible when it contains enough factual content that the court can reasonably infer that the defendant is liable. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Legal conclusions, "formulaic recitation[s]" of the claim's elements, and "naked assertion[s]" of liability are all insufficient. Id. (second alteration in original) (quoting Twombly , 550 U.S. at 557, 127 S.Ct....