When Due Process Is Measured By A Judge’s Values

He was a student at the University of Maryland, “was” being the operative word. Whether this John Doe did anything blameworthy to begin with is a matter of values.

On the evening of December 14, 2014, Plaintiff John Doe, Jane Roe, and several of Doe’s friends, identified as “K.P” and “A.S.,” left a College Park, Maryland bar for K.P. and A.S.’s on-campus apartment. Once at the apartment, Roe grew tired and fell asleep in K.P.’s bedroom. K.P. initially joined Roe in his bed, but later complained that he could not get physically comfortable. K.P. left the bedroom and suggested to Doe, who was resting on K.P.’s couch, that Doe instead sleep in the bed with Roe, and K.P. would sleep on the couch.

To be clear, there is nothing here to suggest that Jane Roe was incapacitated. She had been drinking, but intoxication is not incapacitation. Nor is being sleepy.

K.P. initially claimed that at this point, Doe “brought up a dare,” that he (Doe) would “play a joke on [Roe]” by cuddling with Roe in the bed “until she turns around and realizes that she is not ‘cuddling’ with [K.P.].” Doe denies that he proposed or engaged in any kind of a “dare,” and K.P. now disclaims that Doe suggested a dare.

That United States District Judge Paula Xinis included this paragraph in her recitation of “facts” is the first hint. Is she suggesting that it happened, even though K.P. recanted? To the extent there is anything that taints Roe’s motives, this is it. So either the judge is saying this influenced her decision or not, and by including it, she suggests it did. Except the witness who raised it disclaimed it.

Doe, however, did proceed to get into bed with Roe and fall asleep next to her. About an hour later, Doe and Roe woke up and began kissing. Doe fondled Roe, and asked Roe to perform oral sex on him, to which she agreed. At some point shortly after, Roe looked at Doe and exclaimed, “You’re not K.P.!” Doe immediately left the room. Soon thereafter, Roe exited K.P.’s apartment, visibly upset, and called the police.

So Roe made a mistake and thought Doe was K.P.?

At around 6:00 a.m., the Campus Police at UMCP began investigating the incident. Campus Police took oral and written statements from Roe regarding the encounter, and interviewed Doe, K.P, and A.S. Doe confirmed to the police his version of events regarding his sexual encounter with Roe. Doe added that he thought that Roe knew it was him and not K.P. because Roe would recognize Doe’s voice, and when they were kissing, Roe would have seen and felt Doe’s beard (K.P. is clean shaven).

End of story? Then you don’t know what happens on college campuses these days.

The Campus Police declined to bring criminal charges against Doe, but forwarded the written incident report to the University of Maryland Office of Civil Rights and Sexual Misconduct (OCRSM) on January 27, 2015.

There is nothing in the decision to suggest what claim Roe made against Doe, how this scenario somehow manifested in Doe’s doing anything to Roe. Indeed, that was one of the litany of failures raised by Doe against the college, which expelled him for what happened here.

The January 29 letter tells Doe that he is the subject of “an investigation concerning allegations of sexual misconduct that occurred in December 2014, in Frederick Hall.”

Judge Xinis found this adequate notice of the allegations against Doe, despite the omission of a single allegation of fact or conduct constituting wrongdoing. But in light of her other rulings, this is understandable.

Even though disciplinary-based expulsions require greater procedural safeguards than academic dismissals, “trial-like” procedures are not required to pass constitutional muster. Butler, 121 F. App’x at 519 n. 2; see also Henson, 719 F.2d at 74. In assessing the sufficiency of
the challenged procedural protections, the Court considers three factors: (1) the nature of the
interest protected; (2) the danger of error and the benefit of additional or other procedures; and (3) the burden on the government such procedures would present. Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Butler, 121 F. App’x at 520.

And, indeed, Matthews v. Eldridge provides that the full panoply of due process protections need not be afforded in every administrative hearing. But at the same time, it provides that the degree of due process that must be provided is that which is sufficient to assure a fair outcome.

In weighing the near-complete absence of due process, Judge Xinis considered the college’s protected interest:

Balanced against Doe’s particular interests, however, is UMCP’s interest in regulating student conduct and maintaining the integrity of its institution. See, e.g. Butler, 121 F. App’x at 520. Accordingly, the Court must focus on “the risk of an erroneous deprivation of [Doe’s] interest through the procedures used, and probable value, if any, of additional procedural safeguards.”

The failures of due process here were manifest, though Judge Xinis rationalized the conceded failures as Doe’s fault, because he either believed what his college administrators told him or, had he been sufficiently cynical, could have seized upon opportunities to circumvent their constant stream of failures and misrepresentations. After all, why should a college bureaucracy be required to get their own claimed processes right when a student could have doubted their every word and double-checked them?

But what, you may ask, could Judge Xinis be talking about when she raises the University of Maryland’s interest in “maintaining the integrity of its institution”?

When balancing UMCP’s interests in the integrity of its disciplinary proceedings against Doe’s limitation on cross-examining Roe, the limitations imposed in this case do not, as a matter of law, constitute a denial of due process. See Flaim, 418 F.3d at 641.

When the court says “as a matter of law,” it means that the law does not absolutely mandate it, in this case cross-examination. And that’s generally true, that cross-examination is not mandated in all administrative hearings. But it’s also not the question presented by Matthews, which is whether fairness would require it under the circumstances presented here. Judge Xinis’ language is that of an advocate’s argument, not a judge’s rationale.

And in what way does that relate to the integrity of disciplinary proceedings? To the extent it makes any sense at all, it suggests that the only way these proceedings could have integrity is to guarantee that they result in Doe being found guilty, and expelled, because Roe made a mistake and felt really bad about it afterward.

H/T KC Johnson

9 thoughts on “When Due Process Is Measured By A Judge’s Values

  1. PseudonymousKid

    Dear Papa,

    Kicked on a 12(b)(6)? The judge was shining her favorable light the wrong way. Silly Xinis, it’s the light most favorable to the plaintiff, not the defendant. She even says so herself before immediately forgetting the standard and after she had already slanted the facts. Fuck Iqbal and Twombly for telling judges it’s OK to do this. Hopefully the appellate court nips this in the bud. Xinis should have at least let it get to summary judgment before showing her bias.


    1. SHG Post author

      She said the magic 12(b)(6) words. I could hear them despite the Doppler effect as she went over the cliff.

  2. James L. Smith

    Oh, hell, roll with it. Prof. Nancy Gertner recently complained that for her 17 years as a federal judge, the judges sucked on due process and civil rights cases. When she was a “baby judge,” she said, an official trainer schooled her “Here’s how to get rid of these lawsuits.” The laws are best interpreted, explained, and applied by those whose interests lie in perverting, confounding, and eluding them. (Yes, that was Swift in Gulliver’s Travels.)

  3. Vincent Morrone

    I’m not sure I understand what she means by he could have could have seized upon opportunities to circumvent their constant stream of failures and misrepresentations. How? Isn’t the point of these tribunals to render the respondent powerless to rove his innocence because the administrations does what it wants, regardless of facts or evidence.

    1. SHG Post author

      Don’t confuse my characterization with what the judge wrote. If you want to see the details, you have to read the opinion.

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