Fourth Circuit Upholds Dismissals in Title IX Cases, Leaves Threshold Constitutional Question Unresolved

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Sands Anderson PC

This year, the Fourth Circuit dealt with two Title IX cases involving allegations of due process violations. In these cases, the Court assumed, but did not decide, that university students have a constitutionally protected interest in their continued enrollment in higher education. The Fourth Circuit went on to determine that the students failed to allege they were denied due process of law.

To establish a procedural due process violation, a plaintiff must show “deprivation by state action of a constitutionally protected interest in life, liberty, or property… without due process of law.”  Doe v. The Citadel, No. 22-1843, 2023 WL 3944370, at *2 (4th Cir. June 12, 2023) (citation omitted).

Doe v. Virginia Polytechnic Inst. & State Univ.

In Doe v. Virginia Polytechnic Inst. & State Univ., the Fourth Circuit was given an opportunity to directly address the protected interest issue, because the district court had dismissed Doe’s complaint holding that Doe hadn’t alleged a cognizable liberty or property interest. Instead of ruling on the issue, the Fourth Circuit affirmed the dismissal, but on different grounds. The Fourth Circuit held that “even assuming Doe has such an interest, he hasn’t alleged that he was deprived of it without sufficient process.” 77 F.4th 231,233 (4th Cir. 2023).

Jacob Doe[1] was a student at Virginia Tech who was found responsible for a Title IX violation and suspended. Doe filed a lawsuit alleging due process violations. Doe argued that (1) Virginia Tech didn’t give him notice of the specific charges against him before starting their investigation, (2) he wasn’t able to present testimony from supporting witnesses at the hearing, and (3) the university official who heard his appeal didn’t consider the new evidence he offered to rebut the Complainant’s claim that he isolated her from friends and family.

As to the notice claim, the Fourth Circuit determined that Virginia Tech didn’t violate Doe’s due process rights by investigating the allegations before deciding on charges.[2] In particular, the Fourth Circuit noted that while Doe did not receive notice of the specific charges prior to start of the investigation, he did receive such notice after the completion of the investigation and prior to the hearing, in which he was given an opportunity to respond.

As to the claim about his witnesses, Doe argued his witnesses couldn’t appear in person at the hearing because it was held during the summer. However, the Fourth Circuit noted that Doe doesn’t allege that the witnesses weren’t able to provide testimony by phone, by video or in writing. Nor did he claim that he requested a continuance of the hearing until his witnesses were available.

Finally, Doe argued that the Complainant raised a new allegation at the hearing that he isolated her from friends and family and that his “new evidence” on this issue was not considered on appeal. However, Doe failed to allege why his “new evidence” was not presented at the hearing nor did he allege that he objected to the new allegation or requested a continuance of the proceedings. The Fourth Circuit noted that “[t]here’s a difference between having notice of the charges and having notice of the evidence that supports those charges,” and the Court specifically declined to hold that students have a right to advance notice of all the evidence to be presented against them in a hearing. Thus, the Fourth Circuit held that Doe failed to allege a due process violation.

Doe v. The Citadel

In Doe v. The Citadel, the Fourth Circuit determined that Plaintiff failed to allege a due process claim.  Doe was a student who was found responsible for a Title IX violation, and as a result, he lost his scholarship and was dismissed from The Citadel with leave to apply for readmission after a year. He then filed a lawsuit alleging, among other things, due process violations.  2023 WL 3944370, at *1.

Doe argued that there was bias against him in the Title IX process.  He said the director of the school’s sexual assault center assisted and supported the Complainant during the hearing but did not do so for him.  However, Doe had a “representative” that accompanied him to the hearing who was allowed to conduct cross-examination. Next, he argued that Complainant’s “Battalion TAC Officer” served as the recorder for the hearing.  But the recorder did not get a vote in the determination and Doe failed to allege how his involvement created a bias.  Further, Doe argued that his representative’s cross-examination of the Complainant about her “false memory” was stopped by the decisionmaker.[3] Here, the Fourth Circuit noted the difference between the academic context and criminal context and declined to “import[] [the right to cross-examination] into the academic context.”  Id. at *2.

Further, Doe challenged the determination of responsibility as arbitrary and capricious, arguing that it improperly afforded Complainant’s evidence more weight than his own. The Fourth Circuit deemed this to be a challenge of the ultimate decision on the merits, and thereby not a challenge of the procedure. Finally, Doe argued that he was due greater procedural protections because his case involved sexual misconduct allegations. The Fourth Circuit declined to require a higher procedural standard for sexual misconduct cases. For these reasons, the Fourth Circuit held that Doe failed to allege a due process violation.

In Doe v. The Citadel, despite not deciding the protected interest issue, the Fourth Circuit did provide a concise and helpful summary of its due process analysis: “Doe did not allege that he was provided inadequate notice of the charges or the [] hearing. He was permitted to present a statement and testimony, call witnesses (including character witnesses), and be accompanied by a representative—all safeguards that we have consistently held satisfy due process.” Id. at *2 (citations omitted).


The Fourth Circuit’s recent handling of these cases indicates that due process claims remain a possible attack on a Title IX process. Although the Fourth Circuit did not definitively settle the threshold question of constitutionally protected interests in higher education, its rulings serve as valuable guidance for future cases involving similar issues within the context of Title IX. The Court continues to focus on the specific due process provided in each case, such as notice and a full and fair opportunity to be heard. These decisions highlight the importance of procedural fairness in Title IX proceedings while also demonstrating that the determination of due process violations hinges on the specific facts and circumstances of each case.

[1] A pseudonym.

[2] Doe’s disciplinary proceeding occurred prior to the adoption in 2020 of the Title IX regulation requiring pre-investigation notice of charges. See 34 C.F.R. § 106.45(b)(2) (2023).

[3] Doe’s disciplinary proceeding occurred prior to the adoption in 2020 of the Title IX regulation regarding cross-examination. See 34 C.F.R. § 106.45(b)(6)(i) (2023).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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