Lee v. Univ. of N.M., No. CIV 17-1230 JB\LF

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
• Citation: 449 F.Supp.3d 1071
• Docket Number: No. CIV 17-1230 JB\LF
• Decision Date: 30 March 2020
• 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.

449 F.Supp.3d 1071

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 March 30, 2020

449 F.Supp.3d 1079

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 ¹ AND SECOND AMENDED ORDER ²

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

449 F.Supp.3d 1080

THIS MATTER comes before the Court on: (i) Defendant University of New Mexico's Motion to Dismiss Plaintiff's Due Process Claims, filed December 21, 2017 (Doc. 9)("Due Process Motion"); (ii) Defendants' Motion to Dismiss Plaintiff's Title IX Claim, filed December 21, 2017 (Doc. 7)("Title IX Motion"); and (iii) Defendants' Motion to Dismiss Plaintiff's Contract Claims, filed December 21, 2017 (Doc. 8)("Contract Motion"). The Court held a hearing on July 3, 2018. The primary issues are: (i) whether Defendant University of New Mexico and Defendant Board of Regents of the University of New Mexico (collectively, "UNM") properly may be sued for damages under 42 U.S.C. § 1983 (" § 1983"); (ii) whether Defendants Robert G. Frank, Laura Vele Buchs, Heather Cowan, Francie Cordova, and Megan Chibanga (collectively, "Individual Defendants") properly may be sued for damages under § 1983 ; (iii) whether not permitting Lee any form of cross-examination, not providing witness statements, forbidding new evidence and arguments, and not providing notice of separate charges before an administrative hearing is sufficient to show a deprivation of liberty or property without due process of law; (iv) whether Lee's claim for damages for violation of the Constitution of the State of New Mexico fails as a matter of law; (v) whether the UNM policies and procedures handbook created contractual obligations to enrolled students accused of sexual misconduct; (vii) whether the Individual Defendants can be held individually liable for violations of Title IX of the Educational Amendments Act of 1972 ("Title IX"); and (viii) whether Lee has pled facts sufficient to show gender bias in violation of Title IX. The Court concludes that: (i) UNM is not a "person" for § 1983's purposes, so Lee cannot successfully sue it for damages under that statute; (ii) the Individual Defendants are entitled to qualified immunity, so Lee cannot successfully sue them for damages under § 1983 ; (iii) Lee has pled facts sufficient to show that the Defendants failed to provide him a meaningful opportunity to be heard in violation of his constitutional right to due process of law, (iv) the Defendants are entitled to governmental immunity under the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1 to -30, and so cannot be sued for damages for violation of the Constitution of the State of New Mexico; (v) UNM policies and procedures do not create contractual obligations; (vi) individuals cannot be held liable for violations of Title IX, so the Individual Defendants are not liable under Title IX; and (vii) Lee alleges

449 F.Supp.3d 1081

facts sufficient to create an inference of gender bias. The Court, accordingly, grants in part and denies in part the requests in the Due Process Motion, and grants the requests in the Title IX Motion, and the Contract Motion. Lee's Complaint alleges a cognizable claim against UNM under Title IX, and it alleges cognizable Due Process claims against UNM and its current president.

FACTUAL BACKGROUND

The Court takes its facts from the Complaint. The Court accepts the factual allegations as true for the purposes of a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (" Twombly"). The Court does not, however, accept as true the legal conclusions within the Complaint. See Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").

1. UNM Student Misconduct Policies and Procedures.

UNM has two separate disciplinary procedures, one procedure for students accused of sexual misconduct and another procedure for students accused of non-sexual misconduct. See Lee v. Univ. of N.M., D-202-CV-2017-07891 (Second Judicial Court, County of Bernalillo, State of New Mexico), filed in federal court on December 14, 2017 (Doc. 1-1)("Complaint") ¶¶ 33-35, at 5-6. In matters of non-sexual misconduct, UNM's "Student Grievance Procedure" provides that a Student Conduct Officer must conduct and prepare an investigation report, which includes "summaries of interviews with the complainant, the accused student and third-party witnesses; photographs of the relevant site(s); other relevant evidence; and a detailed analysis of the events in question." Complaint ¶ 34, at 5-6. The accused student, the complainant, and the Student Conduct Committee receive a copy of this report before a "formal" hearing. Complaint ¶ 34, at 6. At the hearing, both the accused student and the complainant may present and question witnesses and evidence, after which the Student Conduct Committee then decides whether there was a violation of the policy at issue and, if so, the appropriate sanction. See Complaint ¶¶ 33-35, at 5-6.

For allegations of sexual misconduct, students are subject to an alternate procedure, the "Discrimination Claims Procedure," which is "fundamentally different, and less formal." Complaint ¶¶ 35-36, at 6. Under this procedure, UNM's Office of Equal Opportunity ("OEO") assigns an investigator to interview the complaining student, draft a statement of the allegations, and then provide the statement to the accused student. See Complaint ¶¶ 39-41, at 7. The OEO investigator has complete discretion to determine the investigation's scope, and to identify and to analyze the relevant documents and witnesses necessary to determine whether a policy violation occurred. See Complaint ¶¶ 42-43, at 7-8. During the investigation that follows, the accused student is neither aware of the identified witnesses, nor provided an opportunity to test the credibility and weight of the evidence that OEO receives. See Complaint ¶¶ 44-46, at 8.

If OEO finds it "more likely than not," that is, "by a mere preponderance of the evidence," that the accused student committed an act of sexual violence or misconduct in violation of UNM policy, UNM OEO issues a Preliminary Letter of Determination ("PLD"). Complaint ¶ 47, at 8. In response to the PLD, the accused student

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is permitted to provide only "new" information that the OEO has not previously considered, although the accused student "does not know, specifically, what information would be deemed ‘new,’ " because the accused student "does not have all of the information relied upon by UNM OEO, specifically the identity of witnesses." Complaint ¶¶ 48-49, at 8 (emphasis in original). If new evidence is unpersuasive, then the OEO issues a Final Letter of Determination ("FLD"). See Complaint ¶ 50, at 9.

The only recourse an accused student has to contest the OEO's Probable Cause³ finding is to appeal to the Office of the UNM President and UNM's Board of Regents, who have "discretionary authority" to review OEO final determinations in "extraordinary cases." Complaint ¶ 52, at 9. If the UNM President or Board of Regents refuse the accused student's request to appeal the FLD, then the UNM OEO's "Probable Cause" decision is referred to the Dean of Student's Office for a sanctions determination. Complaint ¶ 53, at 9.

In cases of alleged sexual misconduct, the only hearing that occurs is a sanctions hearing held after OEO issues a FLD. See Complaint ¶ 54, at 9. Any additional evidence presented at the sanctions hearing may go only to "determine the sanction to be imposed." Complaint ¶ 54, at 9. During the sanctions hearing, a Student Conduct Officer or the Student Conduct Committee assumes that the FLD is correct and does not determine anew whether a policy violation occurred. See Complaint ¶ 55, at 10. Although UNM allows an accused student to have an advisor present at the sanctions proceeding, the advisor is "not authorized to speak on behalf of the individual they are advising." Complaint ¶ 56, at 10.

2. Lee's Investigation and Sanction Hearing.

Lee is a former graduate student at UNM, where he pursued Ph.D. studies from August, 2012, to May, 2016. See Complaint ¶ 21, at 4. Before his enrollment at UNM, Lee signed a graduate program application that included policies and procedures that Lee and UNM agreed to follow in disciplinary actions. See Complaint ¶ 25, at 4;...