Lee v. Univ. of N.M.

• Decision Date: 16 November 2020
• Docket Number: No. CIV 17-1230 JB/LF,CIV 17-1230 JB/LF
• Citation: 500 F.Supp.3d 1181
• Parties: J. LEE, Plaintiff, v. The UNIVERSITY OF NEW MEXICO, a public university, the Board of Regents of the University of New Mexico, individually and in their official capacities, Robert G. Frank, individually and in his official capacity, Laura Vele Buchs, individually and in her official capacity, Heather Cowan, individually and in her official capacity, Francie Cordova, individually and in her official capacity, Megan Chibanga, individually and in her official capacity, Defendants.
• Court: U.S. District Court — District of New Mexico

500 F.Supp.3d 1181

J. LEE, Plaintiff,

v.The UNIVERSITY OF NEW MEXICO, a public university, the Board of Regents of the University of New Mexico, individually and in their official capacities, Robert G. Frank, individually and in his official capacity, Laura Vele Buchs, individually and in her official capacity, Heather Cowan, individually and in her official capacity, Francie Cordova, individually and in her official capacity, Megan Chibanga, individually and in her official capacity, Defendants.

No. CIV 17-1230 JB/LF

United States District Court, D. New Mexico.

Filed November 16, 2020

Aryln G. Crow, Alana M. De Young, Adams + Crow Law Firm, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Quentin Smith, Leah M. Stevens-Block, Jackson Loman Stanford & Downey, P.C., Albuquerque, New Mexico, Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendants’ Motion for Summary Judgment, filed February 6, 2020 (Doc. 70). The Court held a hearing on September 28, 2020. See Clerk's Minutes at 1, filed September 28, 2020 (Doc. 106). The primary issues are: (i) whether Plaintiff J. Lee, a University of New Mexico ("UNM") doctoral student, admitted to the UNM Police Department ("UNMPD") that he engaged in nonconsensual sexual contact with a UNM freshman, Jane Roe,¹ while Roe was incapacitated from alcohol; (ii) whether, during UNM's investigation into the alleged sexual assault, UNM relied on a credibility determination regarding Roe's statements in making its finding that Lee had violated UNM's sexual misconduct policies; (iii) whether the Defendants, UNM, the Board of Regents of UNM, and current UNM President Garnett S. Stokes,² violated Lee's due process rights by expelling him from UNM without providing him with a hearing; (iv) whether the Defendants violated Lee's due process rights by prohibiting Lee from cross-examining witnesses; (v) whether the Defendants violated Lee's due process rights by failing to provide him with access to evidence considered during the investigation; (vi) whether the Defendants violated Lee's due process rights by employing an inquisitorial model of factfinding, where the investigator, Ms. Laura Vele Buchs, both presided over the investigation and determined that Lee violated UNM's sexual misconduct policies; (vii) whether the Defendants violated Lee's due process rights, because Buchs held actual bias against Lee; (viii) whether the Defendants violated Lee's due process rights, because Buchs applied a preponderance-of-the-evidence standard when she decided that Lee violated UNM's sexual misconduct policies; and (ix) whether the Defendants violated Lee's due process rights, because they did not notify him that the UNM Dean of Students ("DOS") would consider his provision of alcohol to minors when it decided that expulsion from UNM was an appropriate sanction. The Court concludes that the Defendants have not violated Lee's due process rights, because: (i) Lee's statements to the UNMPD constitute admissions to having nonconsensual sexual contact with Roe while she was incapacitated; (ii) Roe's credibility was not at issue, because the UNM Office of Equal Opportunity ("OEO") relied almost exclusively on Lee's admissions to the UNMPD that he had engaged in nonconsensual sex with Roe while she was incapacitated in determining that Lee violated UNM policies; (iii) the Defendants provided Lee with at least four in-person opportunities to be heard on the charges against him -- including a hearing with counsel present -- as well as opportunities to provide written statements characterizing his conduct; (iv) the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States of America does not require the Defendants to allow Lee to cross-examine witnesses in any form -- because Roe's credibility is not at issue, this would be a fruitless exercise; (v) the Defendants provided Lee with summaries of all evidence which the OEO considered in its decision that Lee violated UNM policy, including detailed synopses of interviews with witnesses, and allowed Lee to supplement the evidentiary record; (vi) the inquisitorial model of factfinding satisfies the Due Process Clause in university disciplinary proceedings, because non-adversarial models of truth seeking, coupled with opportunities to challenge a single factfinder's decision, are an appropriate means of deciding critical administrative matters; (vii) Lee has not overcome the Court's presumption that Buchs was fair and impartial during her investigation, and, even if Buchs is biased towards Lee, Lee had a separate administrative hearing with the DOS, as well as opportunities to appeal both Buchs’ decision and the DOS’ sanctioning decision to UNM's President and Board of Regents; (viii) the preponderance-of-the-evidence standard satisfies the Due Process Clause, because university disciplinary proceedings are not quasi-criminal; and (ix) the Due Process Clause does not require universities to provide students notice of every factor that they consider in determining appropriate sanctions for violations of university policies; regardless, actual notice in advance of Lee's sanctions hearing would have been impracticable because (a) he admitted during the sanctions hearing that he provided alcohol to minors; (b) Lee's previous statements to the OEO and the UNMPD indicated that he had provided alcohol to minors; (c) and the DOS gave Lee constructive notice that it would consider his provision of alcohol to minors when it informed Lee before the hearing that the hearing officer would consider evidence presented in the hearing, along with evidence collected during the OEO investigation, when setting his sanction. Accordingly, the Court grants the Defendants’ Motion for Summary Judgment.

FACTUAL BACKGROUND

On February 25, 2016, the OEO found that Lee had violated UNM's sexual misconduct policies. See Defendants’ MSJ Memo ¶ 19, at 9 (asserting this fact); FLOD at 3. On July 6, 2016, Lee received notice that he has been expelled from UNM because he had violated UNM's sexual misconduct polices. DOS Sanctions Letter at 22, dated July 6, 2016, filed February 6, 2020 (Doc. 71-3)("DOS Sanctions Letter"). See Defendants’ MSJ Memo ¶ 25, at 11 (asserting this fact). Lee's administrative challenges to the OEO's finding and his subsequent expulsion ultimately failed. See Defendants’ MSJ Memo ¶ 20, at 9 (asserting this fact); Minutes of the Regular Meeting of the Board of Regents of UNM at 14 (dated May 13, 2016), filed February 6, 2020 (Doc. 71-3)("Meeting Minutes").

1. The "Dear Colleague" Letter.

On April 4, 2011, the United States Department of Education ("USDOE") issued a letter providing school districts, colleges, and universities ("schools") with guidance on how to meet their obligations under Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. § 106.³ See United States Department of Education Office of Civil Rights Letter at 1 (dated April 4, 2011), filed March 23, 2020 (Doc. 76-6)("Dear Colleague Letter"); id. at 1 n.1 (identifying the Dear Colleague Letter as a significant guidance document). The Dear Colleague Letter advises that Title IX prohibits sex discrimination in education programs, and that sexual harassment -- including sexual violence -- is a form of sex discrimination. See Dear Colleague Letter at 1. Sexual violence, the Dear Colleague Letter states, includes "physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol," or where a person cannot consent "due to an intellectual or other disability." Dear Colleague Letter at 1. The Dear Colleague Letter next lists acts of sexual violence, including "rape, sexual assault, sexual battery, and sexual coercion." Dear Colleague Letter at 1-2.

The Dear Colleague Letter advises schools regarding grievance procedures for sex discrimination complaints. See Dear Colleague Letter at 8 (citing 34 C.F.R. § 106.8(b) ). The Dear Colleague Letter instructs schools that Title IX permits, but does not require, schools to utilize separate grievance procedures for sex discrimination complaints and other student disciplinary complaints. See Dear Colleague Letter at 8. The Dear Colleague Letter continues that, although grievance procedures "may include voluntary informal mechanisms (e.g., mediation) for resolving some types of sexual harassment complaints, ... it is improper for a student who complains of harassment to be required to work out the problem directly with the alleged perpetrator ...." Dear Colleague Letter at 8; id. ("[I]n cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis."). The Dear Colleague letter accordingly urges schools to state in their grievance procedures that the school will not employ mediation to resolve sexual assault complaints. See Dear Colleague Letter at 8; Student Handbook at 8 ("The options of mediation and informal disposition ... are not available when the accused student has been found to have engaged in prohibited discrimination ...."); OEO Discrimination Claims Procedure at 3.

The Dear Colleague Letter emphasizes that schools must provide "a complainant a prompt and equitable resolution" under Title IX. Dear Colleague Letter at 8. The Dear Colleague Letter lists "elements that are critical to achieve compliance" with Title IX's requirements:

Notice to students, parents of elementary and secondary students, and employees of the grievance procedures, including where complaints may be filed;

Application of the procedures to complaints alleging harassment carried out by employees, other students, or third parties;

Adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence;

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