When a judge tells you twice in one week that you are violating students’ constitutional rights, it may be time to listen.

A federal court in Connecticut handed the University of Connecticut a stinging rebuke yesterday, holding that the university likely violated an accused student’s due process rights when it ignored exculpatory evidence and prevented him from questioning witnesses in his sexual misconduct case. This is the second time in a week that U.S. District Judge Michael Shea has issued a temporary restraining order against UConn in a case involving students’ constitutional rights: Last week, Judge Shea barred UConn from proceeding with a disciplinary hearing against two students impermissibly being disciplined for their constitutionally protected speech. 

Yesterday’s order stems from a sexual encounter between the plaintiff, John Doe, and his accuser, Jane Roe, who were both student workers at UConn’s African American Cultural Center. John and Jane connected at an off-campus party in April 2019 and ultimately ended up back at Jane’s dorm, where they had sex. John claims the sex was consensual; Jane claims it was not. Since there were no witnesses to the sexual encounter itself, this is the type of case in which the credibility of the two parties is critically important. 

John told UConn’s investigator that after John and Jane left the party, they piled — with a group of other friends — into the backseat of another student’s car to go for pizza. According to John, Jane sat on his lap in the car and began to grind against him. Jane denied this, but according to the witness statement of his friend in the front passenger seat, “I could also feel the knees of the girl sitting on [John Doe’s] lap through the back of my seat. I could feel that she was moving back and forth. It was clear to me that these movements on [John Doe’s] lap were sexual.” A witness in the back seat gave a similar statement: “While we were driving to [the pizzeria], the girl sitting on [John Doe’s] lap was moving like she was dancing on his lap, moving her body like moving from her waist. I didn’t want to stare at them.” 

Now, of course, these witness statements do not speak to whether the later sexual encounter in Jane’s dorm room was consensual — but since she denied the behavior in the car, they speak to her credibility about the evening’s events. This evidence never saw the light of day, however, because UConn’s investigator excluded the statements of both of these witnesses from his report, and the hearing officers also refused to allow them to testify at the plaintiff’s hearing. 

There were other problems with the process, too. The investigator and hearing officers relied on the testimony of several female witnesses in reaching their finding of responsibility — but those witnesses did not appear at the hearing, so John had no opportunity to question them in any way. He did have an opportunity to question Jane Roe through the hearing panel, but the panel did not ask some of his questions. 

Ultimately, John was suspended for two years — after which time he could reapply to UConn, but with no guarantee of readmission. And because UConn would not accept any credits that he earned elsewhere during his suspension, he would be left with a permanent gap in his academic record that he would have to explain to any future schools or employers, in addition to the sexual misconduct finding. 

So on Monday, he filed a federal lawsuit in the U.S. District Court for the District of Connecticut, alleging that UConn had violated his due process rights and asking the judge to grant an emergency TRO allowing him to re-enroll at UConn while he litigated his case. Otherwise, he argued, he would suffer irreparable harm.

Yesterday, the judge agreed, holding that plaintiff had “shown a clear likelihood of success on his due process claim” and that he would “suffer irreparable harm if he cannot enroll in UCONN this semester.” 

Judge Shea took UConn to task for its shoddy process:

Because the Plaintiff and Jane Roe were the only two in the dorm room during the incident, UCONN’s finding of non-consent necessarily hinged on the credibility of both the Plaintiff and Jane Roe. Despite the importance of credibility to the factual dispute, UCONN’s disciplinary procedures hampered the Plaintiff’s ability to present a meaningful defense on this issue.

The judge was particularly troubled by UConn’s decision to exclude witnesses who “were prepared to offer testimony that would tend to undermine Jane Roe’s credibility.” He also found that UConn had impermissibly denied John “an adequate opportunity to respond to or question Jane Roe or the other female witnesses interviewed during the investigation.” 

While declining to rule on whether due process in the university setting requires “traditional” cross-examination — an issue yet to be addressed by the U.S. Court of Appeals for the Second Circuit, the jurisdiction of which includes Connecticut — the judge held that the lack of any meaningful opportunity to confront the witnesses against him was likely a due process violation.

Ultimately, the judge found that:

This case involves a severe sanction, a “he said/she said” dispute hinging on the credibility of Roe and the Plaintiff, and important procedural shortcomings in exploring the critical issue of credibility. Under these circumstances, the Plaintiff has shown a clear likelihood of success on the merits of his due process claim. 

“Today’s ruling demonstrates that UConn has systemic problems with their assessment of credibility, which have to be corrected because a lack of due process harms complainants and accused students alike,” said Michael Thad Allen of Allen Law LLC, John Doe’s attorney. 

“Complainants don’t want a world in which administrators can arbitrarily exclude their witnesses,” Allen said, “and they don’t benefit from the arbitrary exclusion of accused students’ witnesses, either. Everyone benefits from a process aimed at finding the truth and believing the evidence.” 

This is a significant ruling for due process on campus, particularly in the Second Circuit where the case law is relatively underdeveloped compared to other jurisdictions. (The First and Sixth Circuits, for example, have both issued rulings requiring a meaningful hearing process in cases turning on credibility.) FIRE will keep you posted on further developments as they occur.