It is unusual for a dissenting opinion to be more noteworthy than the majority’s holding, yet that is the case in Plummer v. University of Houston, a decision recently handed down by the United States Court of Appeals for the Fifth Circuit.  Except for the unsavory facts upon which the decision is based and Judge Edith Jones’ scathing yet thoughtful dissent, Plummer is a fairly unremarkable chapter in the ongoing saga of campus sexual misconduct, student discipline, and consequent Title IX litigation.  Like the character Junior Bunk in the seminal television series, Homicide, however, Judge Jones took it downtown, using her dissent to castigate the United States Department of Education Office for Civil Rights’ April 4, 2011 Dear Colleague letter regarding campus sexual assault and to propose a more equitable standard for adjudicating sexual misconduct claims.

In its 2011 letter, the Office for Civil Rights [“OCR”] noted the generally dismal handling of student-on-student sexual misconduct by colleges and universities. It then set forth the affirmative steps schools were required to implement as well as procedures for investigating and resolving such claims.  OCR’s Dear Colleague letter galvanized schools into more vigorously pursuing sexual harassment claims.  It also triggered a rising wave of litigation brought by students whose schools had deemed them guilty of sexual misconduct and expelled them.

In Plummer, the majority affirmed the trial court’s entry of summary judgment in favor of the University of Houston and two of the school’s administrators [collectively “UH”], holding that in challenging their expulsions, the plaintiffs – a male and, unusual in such cases, a female – had failed to state legally cognizable due process, liberty interest, and Title IX claims.  Although Judge Jones agreed that discipline was appropriate, she derided UH’s process, writing:  “Even though these students deserved punishment, they also deserved more protective procedures given the seriousness of the charges.”

As a preface to her evisceration of UH’s process, Judge Jones focused on what she termed, somewhat skeptically, OCR’s “circular” or “guidance,” writing:

The circular was not adopted according to notice-and-comment rulemaking procedures; its extremely broad definition of “sexual harassment” has no counterpart in federal civil rights case law; and the procedures prescribed for adjudication of sexual misconduct are heavily weighted in favor of finding guilt.

Judge Jones noted that in the wake of OCR’s 2011 letter, “thousands of students’ discipline cases [had been] adjudicated using procedural standards far less demanding than those accorded most defendants.”

Judge Jones dismissed the majority’s deference to what it deemed educationally based disciplinary decisions, noting that the UH policies applied in Plummer “largely tracked the DOE guidance letter,” which was “developed by bureaucrats in the U.S. Department of Education and thrust upon educators with a transparent threat of withholding federal funding.”  Thus, Judge Jones felt that a less-deferential review of UH’s procedures was appropriate, something she undertook with surgical precision.

Judge Jones’ primary concern “was the close association between the charges leveled against [the plaintiffs] and actual criminal charges. Sexual assault is not plagiarism, cheating, or vandalism . . . .  Its ramifications are more long lasting and stigmatizing.”  Despite this, UH had “no significant expertise” in “impartially adjudicating quasi-criminal sexual misconduct allegations.”  Judge Jones was particularly alarmed by the fact that UH’s Title IX coordinator served “in the multiple, and inherently conflicting, roles of advocating for the female student, investigating the events, prosecuting [the plaintiffs], testifying as a witness at their hearings, and training and advising the disciplinary hearing panels.”

Judge Jones wrote that when dealing with “quasi-criminal” charges, schools must have procedures that ensure fairness both to the accuser and to the accused. To that end, she suggested, in part, increasing the standard of proof from a preponderance of the evidence – which requires only that something be more likely than not – to clear and convincing.  She also recommended permitting full participation by the plaintiff/students’ attorneys.  Given the absence of these protections, Judge Jones warned:  “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.”

What Does It Mean?

Given that OCR is reportedly revisiting its April 2011 Dear Colleague letter, Judge Jones’ remarkably frank dissent would seem well timed. Although some will almost certainly characterize her opinion as dismissive of sexual assault, such a gloss would be unfairly reductionist; as noted, Judge Jones clearly stated that the plaintiffs deserved to be disciplined.  Her concern was the diminution – if not outright elimination – of meaningful procedural safeguards for students accused of sexual misconduct.

Judge Jones’ alarm is not misplaced. The torrent of cases that have arisen in the wake of OCR’s 2011 Dear Colleague letter portray college and university disciplinary proceedings that can be something of a train wreck.  Protections and procedures that are fundamental in other forums seem alien to school-based disciplinary panels.  Ultimately, these panel members cannot be blamed.  Although one would neither expect nor require a school nurse to conduct surgery, colleges and universities charge untrained academics, or even other students, with responsibility for making legal and factual determinations, and for adjudicating the equivalent of a serious felony.

There is irony in the fact that the attempt to implement Title IX, a statutory enactment intended to ensure equity, has in some cases created inequity. One cannot seriously question a student’s absolute right to seek recourse for misconduct as heinous as sexual assault.  One also, however, cannot reasonably argue that ensuring a fair adjudication of such assault would be a negative.  It would not derogate from the victim’s rights, it would protect the rights of the accused student, and it would minimize the schools’ exposure to the litigation that is currently arising out of lesser standards.  As Judge Jones correctly observed, “degrading the integrity of its fact-finding procedures, while congratulating itself for vigorously attacking campus sexual misconduct” serves no one’s interests.