John Noakes v. Univ. of Cincinnati ( 2024 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0427n.06
No. 24-3388
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Oct 25, 2024
KELLY L. STEPHENS, Clerk
)
JOHN NOAKES,
)
Plaintiff - Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE
) SOUTHERN DISTRICT OF
THE UNIVERSITY OF CINCINNATI; ALECIA ) OHIO
TRAMMER; ADRIENNE LYLES; BLEUZETTE )
MARSHALL; ASHLEIGH WADE, ) OPINION
Defendants - Appellees. )
)
Before: SUTTON, Chief Judge; READLER and BLOOMEKATZ, Circuit Judges.
BLOOMEKATZ, Circuit Judge. The University of Cincinnati expelled John Noakes after
finding that he sexually assaulted another student. Noakes sued the university and several
administrators for denying him a fair hearing in violation of his Fourteenth Amendment due
process rights. He moved for a preliminary injunction to expunge his disciplinary record. The
district court denied his motion. Because Noakes is unlikely to succeed on his due process claim,
we affirm.
BACKGROUND
John Noakes was a student at the University of Cincinnati (UC). On September 10, 2021,
his fraternity hosted a party. There, he met Jane Roe, another UC student.1 Later that night, they
had sex. Noakes says Roe consented. Roe says she didn’t. A few days later, Noakes learned from
a fraternity leader that Roe had accused him of sexual assault.
1
Both Noakes and Roe proceed anonymously.
No. 24-3388, Noakes v. Univ. of Cincinnati
On March 30, 2022, Roe met with an administrator overseeing Greek life at UC. She
revealed that Noakes sexually assaulted her at a fraternity party. The administrator reported Roe’s
allegations to UC’s Office of Gender Equity & Inclusion (OGEI) that same day. OGEI administers
UC’s Title IX Sexual Harassment Policy, which covers claims of sexual assault. A week later,
OGEI Investigator Morgan Shaw met Roe in person.
Roe filed a formal Title IX complaint against Noakes on July 26. Shaw emailed Noakes on
August 18 notifying him of Roe’s formal complaint. Her email shared that Roe had accused him
of “engag[ing] in vaginal intercourse” without her consent on September 10, 2021, in violation of
the Title IX Policy. Compl. R. 1, PageID 23. The email also included a link to the Title IX Policy.
The policy treats nonconsensual sex as sexual assault. It also states that “incapacitation,” including
“impairment resulting from drugs or alcohol,” negates consent. See Title IX Pol’y, R. 1-3, PageID
105–06.
After Roe filed her formal complaint, Shaw began investigating her claims. Shaw
interviewed Noakes, Roe, and nine other witnesses. At his September 22 interview, Noakes
declined to say anything except that his sex with Roe “was consensual, and she was not
incapacitated.” Appellees’ Br. at 7.
On November 10, Shaw provided Noakes with her Preliminary Investigative Report, which
summarized her witness interviews. The preliminary report contained Roe’s version of events,
including that she had been drinking, may have been drugged, and remembered only “flashes” of
the incident. Id. at 6. Other witnesses recalled Roe appearing intoxicated at the party. Noakes
responded to the preliminary report in writing, denying Roe’s claims. On December 6, Shaw sent
Noakes an 82-page Final Investigative Report. Three days later, Alecia Trammer, who coordinates
UC’s Title IX proceedings, informed Noakes that the school would hold a disciplinary hearing.
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That hearing occurred on February 20, 2023. All three members of the disciplinary panel
were consultants from a private consulting company. Noakes and Roe appeared with their
advisors,2 testified, presented opening and closing statements, and cross-examined witnesses,
including each other. Just over a month later, the panel issued a 14-page report summarizing its
findings. The panel determined Noakes violated the Title IX Policy on sexual assault and
recommended expulsion. It found that although Roe likely hadn’t been drugged, she was
intoxicated to the point of incapacitation and therefore could not consent. Noakes appealed the
decision. The appellate panel, this time comprising consultants from a different company, denied
his appeal. UC expelled Noakes. He enrolled elsewhere, graduated, and secured a full-time job.
Noakes sued the university and four of its administrators: Trammer, Bleuzette Marshall,
Adrienne Lyles, and Ashleigh Wade. Noakes alleged that by depriving him of a fair investigation
and hearing, the university violated Title IX and Ohio law, and the administrators violated his
Fourteenth Amendment due process rights. On the due process claims, Noakes moved for a
preliminary injunction requiring the administrators—whom for ease, we refer to collectively as
“UC”—to expunge his disciplinary record. After limited discovery, the district court denied
Noakes’s motion, holding that his due process claim was unlikely to succeed on the merits. He
timely appealed.
ANALYSIS
I. Standard of Review
On a motion for a preliminary injunction, courts must consider whether the movant has a
strong likelihood of success on the merits and whether an injunction would prevent irreparable
2
The Title IX Policy allows parties to have “advisors” assist them at interviews and
hearings. See R. 1-3, PageID 117. Advisors need not be attorneys, but Noakes selected an
experienced former prosecutor as his advisor.
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injury, avoid substantial harm to others, and serve the public interest. See City of Pontiac Retired
Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam). We review
the district court’s ultimate decision for abuse of discretion but examine its legal conclusions “with
fresh eyes.” Arizona v. Biden, 40 F.4th 375, 381 (6th Cir. 2022). When the movant shows no
likelihood of success, “an injunction is unwarranted—regardless of the showing on the other
factors.” Union Home Mortg. Corp. v. Cromer, 31 F.4th 356, 366 (6th Cir. 2022).
II. Likelihood of Success
Our inquiry starts (and ends) with Noakes’s likelihood of success on his due process claim.
Although the “exact outlines of process” required under the Due Process Clause vary between
cases, universities must provide students facing expulsion with “at least” notice, an “explanation
of the evidence,” and an opportunity to present their side before an unbiased decisionmaker. See
Doe v. Univ. of Cincinnati, 872 F.3d 393, 399–400 (6th Cir. 2017). Noakes claims UC offered
neither effective notice nor a fair hearing, and we consider his arguments in turn. But before that,
we address and reject UC’s contention that the Eleventh Amendment bars Noakes’s suit.
A. Eleventh Amendment
Noakes seeks prospective injunctive relief, so the Eleventh Amendment does not shield
UC from suit. The Eleventh Amendment immunizes states from suits seeking to redress past
harms. Block v. Canepa, 74 F.4th 400, 406 (6th Cir. 2023). But it does not prohibit suits for
prospective injunctive relief against state officials acting in their official capacities. See Skatemore,
Inc. v. Whitmer, 40 F.4th 727, 733 (6th Cir. 2022) (citing Ex parte Young, 209 U.S. 123 (1908)).
Noakes does not—and could not—sue the university itself under this exception. Stanley v. W.
Mich. Univ., 105 F.4th 856, 864 (6th Cir. 2024). Rather, he wants the named administrators to
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expunge his disciplinary record, which “is, as a practical matter, prospective relief.” Ashford v.
Univ. of Mich., 89 F.4th 960, 969 (6th Cir. 2024). As a result, the Eleventh Amendment is no bar.
UC tries to recast Noakes’s claim as retrospective, but it misapprehends his theory of harm.
UC highlights a line from the complaint stating Noakes is “entitled to an injunction” preventing
UC from unlawfully “enforcing the Sexual Misconduct Policy and Code of Student Conduct
against him.” Compl., R. 1, PageID 61. Yet Noakes does not seek compensation or any other
backwards-facing remedy. Doe v. Cummins, 662 F. App’x 437, 444 (6th Cir. 2016). Instead, he
asks to clear his disciplinary record and prevent any “further disciplinary proceedings” that violate
his rights. Compl., R. 1, PageID 64. Noakes has alleged that the stain unconstitutionally placed on
his record “will continue to affect” him. See Ashford, 89 F.4th at 969. The Eleventh Amendment
allows the “prospective remedial action” he seeks. Cummins, 662 F. App’x at 444.
Contrary to UC’s assertions, Noakes has sufficiently connected the defendant
administrators to his injuries. A plaintiff seeking to enjoin state officials need only establish that
they have “some connection” to the constitutional violation or an ability to grant the relief sought.
See Top Flight Ent., Ltd. v. Schuette, 729 F.3d 623, 634 (6th Cir. 2013). Trammer, Lyles, and
Marshall administer the Title IX Policy, and Wade maintains UC’s disciplinary records. These
individual defendants therefore have “some connection” to Noakes’s allegations.
B. Notice
Turning to Noakes’s due process claims, we first conclude that UC provided him adequate
notice. In this context, notice must include “a statement of the specific charges and grounds which,
if proven, would justify expulsion.” Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 638 (6th Cir. 2005)
(citation omitted). It needs to afford the student “a meaningful opportunity to prepare for the
hearing.” See id. (citation omitted).
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In August 2022, UC emailed Noakes with the date, time, and location of the alleged
incident. It informed Noakes that Roe had formally accused him of having nonconsensual sex with
her in violation of the Title IX Policy. It also summarized UC’s grievance process and Noakes’s
rights. In turn, the Title IX Policy—linked to in the notice—stated on the second page that a person
cannot “consent” while “incapacitated.” Title IX Policy, R. 1-3, PageID 104. On the next page, it
explained that “incapacitation” includes “impairment resulting from drugs or alcohol.” Id. at
PageID 105. Read with the Title IX Policy it linked to, UC’s August 2022 email notified Noakes
that Roe had accused him of nonconsensual sex, and that incapacitation might be at issue. The
email may by itself have satisfied due process’s notice requirement. See Flaim, 418 F.3d at 638–39.
But even assuming UC’s initial email alone did not suffice, the preliminary report, which
Noakes received on November 10, 2022, did. It noted that Roe drank alcohol before the alleged
assault and also believed she had been drugged. It also summarized Shaw’s interviews of other
witnesses, who recalled Roe appearing intoxicated. The report placed incapacitation at the heart
of Noakes’s case. It afforded him over three months to prepare his defense. Thus, Noakes is
unlikely to succeed on the claim that he lacked fair notice. See Martinson v. Regents of Univ. of
Mich., 562 F. App’x 365, 373–74 (6th Cir. 2014) (holding that notice one month before
disciplinary hearing provided adequate time to prepare); Cummins, 662 F. App’x at 447 (same);
Doe v. Miami Univ., 882 F.3d 579, 603 (6th Cir. 2018) (three weeks).
Noakes’s counterarguments fall flat. He contends UC’s initial notice should have specified
that Roe thought she had been too intoxicated to consent. And he says he faced a “moving target,”
as Roe claimed someone drugged her, while the hearing panel ultimately found she was too drunk
to consent. Appellant’s Br. at 30. But UC’s email and the preliminary report let Noakes know that
the hearing would center on Roe’s capacity, as possibly influenced by drugs or alcohol. That was
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enough to give him a “meaningful opportunity” to formulate a defense, and due process did not
require the university to share more. Flaim, 418 F.3d at 639.
Nor has Noakes established that any delays amounted to due process violations. Noakes
first claims UC should have notified him in March 2022, when it learned Roe had accused him of
sexual assault. But due process requires “notice of the charges,” and until Roe filed a formal
complaint on July 26, Noakes faced no disciplinary charges. Flaim, 418 F.3d at 639. Second,
Noakes argues UC improperly waited three weeks to notify him after Roe’s formal complaint, but
his reliance on Doe v. University of Cincinnati is misplaced. See 872 F.3d 393. In that case, the
university waited five months to inform the respondent after receiving a formal complaint, much
longer than the three weeks here. Even then, we did not rest our due process holding on that delay.
Id. at 403. Third, Noakes suggests UC’s notice provided him too little time to prepare for his
“initial interview.” Appellant’s Br. at 28. Yet due process required only that UC offer him “a
meaningful opportunity to prepare for the hearing,” not for every investigative step along the way.
Flaim, 418 F.3d at 639 (citation omitted). Finally, Noakes contends that UC missed the deadlines
imposed by its own Title IX Policy. But even if that’s true, Noakes must show that it “result[ed]
in a procedure which itself impinge[d]” on his due process rights. Id. at 640 (quoting Bates v.
Sponberg, 547 F.2d 325, 329–30 (6th Cir. 1976)). As explained below, he has not done so.
C. Hearing
UC also provided Noakes a constitutionally adequate hearing. Due process requires that a
student facing expulsion receive a hearing at which they can “respond, explain, and defend”
themselves before unbiased decisionmakers. Id. at 635 (citation omitted); Heyne v. Metro.
Nashville Pub. Schs., 655 F.3d 556, 566 (6th Cir. 2011). If the hearing turns on witness credibility,
the student must receive “an opportunity for cross-examination.” Doe v. Baum, 903 F.3d 575, 581
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(6th Cir. 2018). Noakes and his advisor—an experienced attorney—presented a defense and cross-
examined witnesses at his hearing. The panel issued a 14-page report outlining the evidence,
weighing conflicting pieces of testimony, and concluding that Noakes sexually assaulted Roe in
violation of UC’s policies. Now, Noakes contends his disciplinary panel improperly favored UC,
relied on undisclosed evidence, and prevented him from effectively cross-examining Roe. None
of these challenges holds weight.
1. Panel Bias
Noakes has not shown that his disciplinary panel was biased against him. We presume the
impartiality of school-disciplinary committees absent evidence of actual bias. See Miami Univ.,
882 F.3d at 601 (quoting Cummins, 662 F. App’x at 449). Bias must be “evident from the record”
not just “based in speculation or inference.” Cummins, 662 F. App’x at 450 (quoting Nash v.
Auburn Univ., 812 F.2d 655, 665 (11th Cir. 1987)).
Noakes presents two purported examples of bias, but both miss the mark. First, a 2023 New
York Times article quoted one of the disciplinary panelists on the value of cross-examination
during campus sexual-assault hearings. The panelist stated that cross-examination is supposed to
test credibility but is “basically worthless at getting to the truth.” Appellant’s Br. at 50. Noakes
claims this statement reveals bias, but it favors neither Roe nor Noakes, as they both cross-
examined witnesses, including each other. And simply taking research positions on sexual
misconduct proceedings does not establish a reasonable inference of bias. Miami Univ., 882 F.3d
at 601. Second, Noakes contends the panelists “help[ed] Roe with her story” by repeatedly asking
her to clarify her testimony. Appellant’s Br. at 50–51. Once again, Noakes hasn’t demonstrated
those questions cut against him. Indeed, the panel ultimately discounted parts of Roe’s testimony,
including her belief that she had been drugged. And the panel asked Noakes the same kinds of
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clarifying questions, so bias is not “evident from the record.” Cummins, 662 F. App’x at 450
(quoting Nash, 812 F.2d at 665).
Noakes responds that he does not need “proof of actual partiality,” but he misapprehends
our decision in Utica Packing Co. v. Block. 781 F.2d 71, 77 (6th Cir. 1986). See Appellant’s Br.
at 48–49. There, we did not require proof of actual bias because those prosecuting the case also
served as its adjudicators, resulting in an “intolerably high” risk of unfairness. Id. at 77–78 (quoting
Withrow v. Larkin, 421 U.S. 35, 57 (1975)). Noakes identifies no structural unfairness here. True,
upon his request, UC replaced one of its initial panelists, Brett Sokolow. And unbeknownst to UC,
Sokolow still provided feedback on the panel’s final report. But Noakes has established neither
that Sokolow showed bias, nor that he influenced the case’s outcome. Beyond that, Noakes at most
alleges that panelists worked for entities that also served as “advocates for schools,” including UC,
in other contexts. Appellant’s Br. at 49. But that does not suffice to show structural unfairness in
this proceeding.
Noakes then calls the panel’s decision so “perplexing” that it reflects bias, but that is
hyperbole. Appellant’s Br. at 44. He cites Doe v. Purdue University, in which the Seventh Circuit
held that a university’s disciplinary decision rested on reasoning so faulty that it suggested bias.
See 928 F.3d 652, 669 (7th Cir. 2019) (Barrett, J.). That case “boiled down to a he said/she said”
scenario, and the adjudicator treated the complainant as the “more credible witness” despite never
interviewing her or even meeting her. Id. at 664 (cleaned up). UC’s procedures had no such
infirmities. The disciplinary panel heard from Noakes, Roe, and other witnesses. It allowed cross-
examination. And it amply explained its credibility determinations in its post-hearing report. We
are not “perplexed” by its reasoning.
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Noakes’s remaining arguments fare no better. He challenges the panel’s decision
mentioning that he initially chose not to participate in the investigation. But Noakes presents no
authority recognizing a due process right to remain silent during school disciplinary proceedings,
especially absent a threat of criminal prosecution. Even if that right did exist, the decision does not
suggest that the panel faulted him for not speaking to Shaw. Rather, in assessing Noakes’s
credibility, the panel compared his hearing testimony with his earlier account of the incident.
Noakes spoke to one friend but not to Shaw, so the panel had only one point of comparison. The
panel found that in some respects, his story differed, and as a result, found him less credible.
Noakes has not shown the panel violated his due process rights by doing so.
2. Undisclosed Evidence
Moreover, Noakes hasn’t shown that the panel relied on undisclosed evidence. Universities
need to provide students facing disciplinary sanctions “an explanation of the evidence supporting
the accusation” and a chance to respond to it. Flaim, 418 F.3d at 634. Well before Noakes’s
hearing, UC sent him the preliminary and final reports, which summarized witness interviews and
outlined Roe’s allegations. At his hearing, Noakes got to cross-examine witnesses about Roe’s
intoxication. But in its post-hearing report, the panel referenced a previously undisclosed online
calculator for approximating Roe’s blood alcohol content (BAC). Based on Roe’s testimony, the
calculator estimated her BAC would have been “roughly 0.19% to 0.23%,” which would have
impaired her physical and mental capacity. Report, R. 1-4, PageID 137. Noakes claims UC violated
his due process rights by using the calculator without letting him scrutinize it.
The panel’s reference to an online calculator doesn’t violate the Due Process Clause.
Noakes relies on two cases in which we held that a university violated an accused student’s due
process rights by withholding evidence. See Endres v. Ne. Ohio Med. Univ., 938 F.3d 281, 301–02
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(6th Cir. 2019); Miami Univ., 882 F.3d at 603. But in both, the evidence was so central that without
it, the student “could not have responded to what seemed like incontrovertible proof” against him
or “present[ed] his side of the story.” Endres, 938 F.3d at 301–02 (citation omitted); see Miami
Univ., 882 F.3d at 603 (finding a due process violation where the university refused to provide its
investigative report to a student accused of sexual assault). Noakes’s case is a far cry from Endres
and Miami University. The BAC calculator merely corroborated extensive testimony from Roe
and several other witnesses that, on the night of her alleged assault, Roe’s intoxication had
impaired her physical and mental faculties. As a result, it was inessential to the panel’s decision.
And given the ample evidence that Roe had diminished capacity, attacking the calculator would
not have meaningfully improved Noakes’s ability to craft a responsive defense. We find that the
panel’s reference to the BAC calculator did not deprive Noakes of a fair hearing.
3. Effective Cross-examination
Nor does Noakes show that UC deprived him of his right to cross-examine witnesses. If a
disciplinary proceeding turns on witnesses’ credibility, the “hearing must include an opportunity
for cross-examination.” Baum, 903 F.3d at 581. Noakes had that opportunity. He cross-examined
several witnesses and Roe herself about her level of intoxication and her capacity to consent. But
Noakes argues UC should have shared records of Roe’s medical treatments and academic
accommodations from after the alleged assault, which could have helped him impeach her. Noakes
also asserts the panel improperly cut off his questioning during the hearing. According to him, this
violated his due process right to cross-examine Roe.
These are shots in the dark. Schools cannot access or disclose a witness’s medical records
without their consent. See 34 C.F.R. § 106.45(b)(7)(ii) (2023). Roe did not consent. Noakes looks
to Doe v. Ohio State University for the proposition that due process requires a university to turn
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over records of the complainant’s academic accommodations. See 219 F. Supp. 3d 645, 663 (S.D.
Ohio 2016). That case neither binds nor persuades us. The plaintiff there claimed the university
planned to expel the complainant, allowed the complainant to stay because she alleged sexual
assault by the plaintiff, and withheld that information at his hearing. In those circumstances,
academic supports were “critical evidence” of the complainant’s motive to lie. Id. By contrast,
although Roe may have received academic supports after filing her complaint, Noakes points to
no evidence that she needed those supports beforehand and had motive to lie to receive them.
Rather, Noakes received the final investigative report, which noted Roe sought no academic
supports before filing a complaint. Put simply, the law does not support his position that due
process entitled him to Doe’s records.
Finally, Noakes suggests the panel should have allowed him to ask more questions.
According to Noakes, the panel “cut off good faith questions” from his advisor at least once during
the hearing. Appellant’s Br. at 47. Maybe so, but due process does not require “unlimited” cross-
examination. Doe v. Mich. State Univ., 989 F.3d 418, 431 (6th Cir. 2021). And Noakes does not
argue that being interrupted deprived him of the ability to present a full defense.
Noakes has not shown he is likely to succeed on the merits of his due process claim, so the
district court did not err in denying his motion for a preliminary injunction.
CONCLUSION
We affirm the district court’s denial of a preliminary injunction.
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