By Jason Boleman
The 4th U.S. Circuit Court of Appeals upheld the dismissal of a lawsuit against Virginia Tech and university officials filed by a student who received a “long suspension” from the school after a Title IX investigation.
The student alleged the university’s investigation “denied him due process of law,” the lawsuit says. The U.S. District Court for the Western District of Virginia dismissed the complaint, saying the student failed to allege “a cognizable liability or property interest in his continuing education.”
On appeal, U.S. Circuit Chief Judge Albert Diaz upheld the District Court’s dismissal — but for a different reason.
“[E]ven assuming Doe has such an interest, he hasn’t alleged that he was deprived of it without sufficient process,” Diaz wrote.
U.S. Circuit Judges Roger L. Gregory and Stephanie D. Thacker joined Diaz in Doe v. Virginia Polytechnic and State University.
Alexandria attorney Benjamin North, who represented the plaintiff student, told Lawyers Weekly that he has filed a petition for rehearing en banc.
“For the reasons outlined in our briefs and petition for rehearing en banc, we believe this case presents critical issues of due process and merits the attention of the full court,” North said.
The student plaintiff, identified under the pseudonym “Jacob Doe,” was a student at Virginia Tech in fall 2017. In December 2017, Doe broke up with a female student, identified under the pseudonym “Jenna Roe.”
Per the opinion, Roe subsequently accused Doe of assault and battery and trespassing, which were subsequently dropped after the county prosecutor became aware that Roe “physically assaulted Doe during their relationship.”
Virginia Tech opened a Title IX investigation to investigate the allegations against Doe. While Doe was notified via email, the email “didn’t include ‘any information about the specific incidents, allegations, or possible violations of the Student Conduct Code being investigated.’”
During the three-month investigation, Katie Polidoro then the university’s deputy Title IX coordinator, “met at least four times with Roe and interviewed at least three of Roe’s suggested witnesses.” Per the opinion, witnesses Doe alleged could refute Roe’s claims were not interviewed, and Doe met with Polidoro twice.
Doe received a copy of the investigation report in March 2018, which did not include exact allegations or charges being brought against him or the allegations of abuse by Roe. Five days later, Doe was informed of the seven charges he was facing, including three related to sexual assault.
A combined hearing on Doe and Roe’s conduct was held two months later. Diaz noted that the court knew “very little about what happened at the hearing.”
After the hearing, Doe was found responsible for domestic violence and suspended for 1½ years. Roe was found responsible for dating violence and received probation. The written decision by the university “‘relied heavily’ on the interviews of Roe’s corroborating witnesses.”
Doe appealed the decision, claiming the hearing officers were biased, the wrong standard of proof was used, and they failed to properly notify him of the allegations.
Angela Simmons, Virginia Tech assistant vice president for student affairs, rejected the claims, stating that Doe was told of the charges against him prior to the hearing and refused to consider new evidence offered after the appeal.
Doe subsequently sued Virginia Tech and university officials, claiming gender-based discrimination in violation of Title IX, violation of due process rights, and state law claims, including breach of contract.
The U.S. District Court for the Western District of Virginia dismissed Doe’s suit, saying Doe “hadn’t alleged a cognizable liberty or property interest.”
Doe’s appeal followed.
Doe first argued insufficient process, claiming that Virginia Tech failed to inform him of the specific charges before starting their investigation, that he was unable to present testimony from supporting witnesses at the hearing, and that the official who heard his appeal did not consider the new evidence he brought forward.
Diaz was unpersuaded.
“Assuming Doe has a cognizable interest in his continued enrollment, Virginia Tech’s investigation didn’t deprive him of that interest,” the judge wrote. “Had Virginia Tech suspended Doe at the close of Polidoro’s investigation (with no further opportunity for Doe to be heard), we might face a different case. But as alleged, the investigation report merely described the evidence against Doe. It wasn’t accompanied by any sanction.”
Diaz noted that Doe attended class and remained on the university’s campus for nearly two months between the end of the investigation and the hearing date.
“He was found responsible for domestic violence and suspended only after he saw the university’s report, received notice of the charges against him and had a hearing where he was given an opportunity to respond,” the judge wrote.
Doe’s claim that Virginia Tech could have provided a pre-investigation notice of the charges due to Title IX regulations “misstates our inquiry,” Diaz added.
“Our charge is to balance Doe’s interest in his continuing education with Virginia Tech’s interest in providing a safe campus community, where allegations of misconduct can be timely investigated — or not — as appropriate,” the judge said.
Doe next argued that his due process rights were violated when Virginia Tech did not interview his witnesses during its investigation of Roe’s allegations.
But Diaz said that wasn’t right.
“As we’ve said, Virginia Tech didn’t sanction Doe until after the hearing. And we’ve never held that a university has an obligation to present exculpatory evidence on behalf of an accused student,” the judge wrote.
The complaint said the witnesses could not appear in person at the summer hearing — not that the witnesses could not provide testimony in other ways. Further, Doe didn’t claim to seek a continuance of the hearing and said that Polidoro previously interviewed his witnesses during her investigation into Roe’s conduct.
“So, these allegations too don’t rise to the level of a due-process violation,” Diaz wrote.
Doe’s final contention — that he was unable to challenge Roe’s credibility when Roe presented a new allegation at the hearing — was rejected.
“[E]ven assuming that Doe should have been able to cross-examine Roe and present impeachment evidence at the hearing, his complaint doesn’t allege that Virginia Tech officials prevented him from doing so,” Diaz wrote. “The complaint lacks details on what occurred at the hearing and doesn’t say if Doe testified or had an opportunity to cross-examine Roe. Doe is entitled to reasonable inferences drawn from the facts in the complaint, but we won’t infer a due-process violation from his silence.”
Moreover, the judge said it wasn’t clear why Doe couldn’t have offered this same information at the hearing.
“Perhaps in some future case, the evidence at a hearing might be of such character or consequence to merit advance notice,” Diaz concluded. “But that’s not this case. To find that Doe alleged a due-process violation on this sparse record, we’d have to hold that university students have a right — in effectively every disciplinary hearing — to advance notice of the evidence to be presented against them. The ask is even more striking here because Doe doesn’t allege that he sought a continuance or that Virginia Tech relied on the surprise testimony.”
The District Court’s judgment was affirmed.