Van Overdam v. Texas A & M Univ

Case: 21-20185 Document: 00516425000 Page: 1 Date Filed: 08/09/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 9, 2022
No. 21-20185 Lyle W. Cayce
Clerk
Austin Van Overdam,
Plaintiff—Appellant,
versus
Texas A&M University; Michael K. Young, in his official
capacity; Alyssa Leffall, in her official capacity; Kyle
McCracken, in his official capacity; Dustin Grabsch, in his official
capacity; Jaclyn Upshaw-Brown, in her official capacity; Dayna
Ford, in her official capacity; Kristen Harrell, in her official capacity;
C. J. Woods, in his official capacity,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-2011
Before Higginson, Willett, and Ho, Circuit Judges.
Per Curiam:
This case comes to us on interlocutory appeal under 28 U.S.C.
§ 1292(b). The outcome turns on two controlling questions of law. First,
what is the proper pleading standard for a Title IX challenge to a university’s
disciplinary proceeding? Second, does constitutional due process require
that students accused of sexual assault be permitted the opportunity for
Case: 21-20185 Document: 00516425000 Page: 2 Date Filed: 08/09/2022
No. 21-20185
attorney-led direct cross-examination of their accusers during university
disciplinary proceedings? We analyze each question in turn. Applying the
answers to the present case, we affirm.
I.
Austin Van Overdam and Hannah Shaw were sophomores at Texas
A&M University when they met in 2015 through an online dating application.
During their one and only interaction, Van Overdam and Shaw engaged in
intercourse (“Act 1”), sodomy (“Act 2”), and fellatio (“Act 3”)—in that
order. Roughly eight months later, Shaw filed a complaint against Van
Overdam for sexual abuse, inappropriate sexual contact, and dating violence
in violation of the University’s policies. Shaw alleged the following: The
first sexual act was consensual; but Van Overdam held her down by her wrists
when she refused to consent to the second act and sodomized her against her
will; she then performed fellatio on Van Overdam out of fear because she
“could tell that was what he wanted from his body language,” before leaving
his apartment. Texas A&M provided Van Overdam notice of Shaw’s
allegations and scheduled a live disciplinary hearing to evaluate the evidence
and witness testimony.
Van Overdam’s hearing proceeded pursuant to Texas A&M policy.
Both Van Overdam and Shaw attended the hearing in person. A neutral
chairperson and panel comprised of three university administrators presided.
Van Overdam’s attorney was present throughout the proceeding. After
Shaw described her allegations in detail, Van Overdam and his attorney were
not permitted to cross-examine her directly. Instead, they were allowed to
submit an unlimited number of written questions to the panel for it to ask
Shaw in both parties’ presence, subject to the panel’s determinations on
relevancy and non-harassment. Van Overdam declined to submit any
questions. He did, however, seek to enter unspecified evidence regarding
2
Case: 21-20185 Document: 00516425000 Page: 3 Date Filed: 08/09/2022
No. 21-20185
Shaw’s mental health and prior sexual history. Neither was permitted. Van
Overdam also alleges that the panel stopped Shaw from testifying about her
sexual history.
The panel ultimately found Van Overdam responsible for violating
Texas A&M’s policy as to Act 2, but not responsible as to Act 3. Van
Overdam was suspended for a semester before returning to his studies and
the varsity swim team. He graduated from Texas A&M in 2019.
In 2018, Van Overdam sued Texas A&M and several university
administrators for sex discrimination under Title IX and deprivation of
constitutional due process under 42 U.S.C. § 1983. He based his Title IX
claim on two well-recognized theories of liability within the university
disciplinary context: (1) erroneous outcome and (2) selective enforcement.
See Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204, 210 (5th Cir. 2019);
accord Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2nd Cir. 1994). Put simply, Van
Overdam alleges that the University erroneously found him responsible for
Act 2, and selectively enforced its sexual assault policies against him because
of his gender. As for Van Overdam’s constitutional claim, he argues that the
University’s refusal to permit his attorney to directly cross-examine Shaw
violated his right to due process.
The district court ultimately granted defendants’ motion to dismiss as
to Van Overdam’s Title IX erroneous outcome and § 1983 due process
claims. Thus, only Van Overdam’s Title IX selective enforcement claim was
allowed to proceed—which the court found to “barely clear[] the pleading
hurdle.” Van Overdam filed a motion for reconsideration, which the district
court denied. The district court then certified its rulings for interlocutory
appeal under 28 U.S.C. § 1292(b), on the grounds that they turn on two
controlling questions of law. And this court granted Van Overdam’s leave to
appeal from the interlocutory orders.
3
Case: 21-20185 Document: 00516425000 Page: 4 Date Filed: 08/09/2022
No. 21-20185
II.
Under § 1292(b), our court reviews de novo any controlling legal
questions raised by a district court’s certified orders. Yamaha Motor Corp.,
U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996); McMillan v. Amazon.com, Inc.,
983 F.3d 194, 198 (5th Cir. 2020). Our jurisdiction “is not confined to the
precise question[s] certified by the lower court,” but is “nonetheless
confined to the particular order[s] appealed from.” Hernandez v. Results
Staffing, Inc., 907 F.3d 354, 363 (5th Cir. 2018) (cleaned up) (quoting United
States v. Stanley, 483 U.S. 669, 677 (1987)).
We identify two controlling questions of law raised by the district
court’s certified orders. First, what is the proper pleading standard for a
Title IX claim challenging a university’s disciplinary proceeding? Second,
does constitutional due process require that students accused of sexual
assault be permitted the opportunity for attorney-led direct cross-
examination of their accusers during university disciplinary proceedings?
We address each question below.
A.
Title IX provides that: “No person . . . shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a).
Two frameworks have emerged for analyzing Title IX challenges to
university disciplinary proceedings. The first is commonly referred to as the
“Yusuf framework,” which describes four theories of liability: (1) erroneous
outcome; (2) selective enforcement; (3) archaic assumptions; and (4)
deliberate indifference. Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir.
2018); Yusuf, 35 F.3d at 715. “Plaintiffs attacking a university disciplinary
proceeding on grounds of gender bias can be expected to fall generally
4
Case: 21-20185 Document: 00516425000 Page: 5 Date Filed: 08/09/2022
No. 21-20185
within” one or more of these categories. Yusuf, 35 F.3d at 715. This
framework has been applied by circuit courts for decades, including this one.
See, e.g., Klocke, 938 F.3d at 210; Doe v. Univ. of Dayton, 766 F. App’x 275,
284 (6th Cir. 2019); Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 74 (1st
Cir. 2019); Robinson v. Wutoh, 788 F. App’x 738, 738–39 (D.C. Cir. 2019);
Doe v. Valencia Coll., 903 F.3d 1220, 1236 (11th Cir. 2018); Doe v. Baum, 903
F.3d 575, 585 (6th Cir. 2018); Doe v. Trs. of Boston Coll., 892 F.3d 67, 90–91
(1st Cir. 2018); Plummer v. Univ. of Houston, 860 F.3d 767, 777–78 (5th Cir.
2017).
Under Yusuf and its progeny, a plaintiff who, like Van Overdam,
alleges an erroneous outcome, “must point to particular facts sufficient to
cast some articulable doubt on the accuracy of the outcome of the disciplinary
proceeding,” and “a causal connection between the flawed outcome and
gender bias.” Klocke, 938 F.3d at 210 (cleaned up) (quoting Yusuf, 35 F.3d at
715); accord Miami Univ., 882 F.3d at 592.
The second framework was articulated more recently by the Seventh
Circuit in Doe v. Purdue University, 928 F.3d 652, 667 (7th Cir. 2019). There,
the court noted that while “[s]ome circuits use formal doctrinal tests to
identify general bias in the context of university discipline. . . . [w]e see no
need to superimpose doctrinal tests on the statute.” Id. (citing Yusuf, 35 F.3d
at 715). Under Purdue, the Yusuf categories continue to “describe ways in
which a plaintiff might show that sex was a motivating factor in a university’s
decision to discipline a student.” Id. But, regardless of a plaintiff’s particular
theory of Title IX liability, the critical question remains the same: “do the
alleged facts, if true, raise a plausible inference that the university
discriminated against [the plaintiff] on the basis of sex?” Id. at 667–68
(cleaned up).
5
Case: 21-20185 Document: 00516425000 Page: 6 Date Filed: 08/09/2022
No. 21-20185
Like many plaintiffs before him, Van Overdam pleaded his Title IX
claim based on the Yusuf framework—as an “erroneous outcome” cause of
action and a “selective enforcement” cause of action. Applying Yusuf, the
district court concluded that Van Overdam had not plausibly pleaded an
erroneous outcome and “barely cleared the pleading hurdle” regarding
selective enforcement.
Van Overdam asks us to adopt the Purdue standard. Texas A&M
argues that the district court did not err in applying Yusuf—and, indeed, that
both the district court and this court are bound to do so by Fifth Circuit
precedent. It is true that we have previously applied Yusuf to analyze Title
IX claims in the university context. See Klocke, 938 F.3d at 210; Plummer, 860
F.3d at 777–78. It is also true that we have never expressly considered Purdue
in any Title IX opinion. So while we have applied the Yusuf framework, we
have never expressly adopted it.
We see no meaningful tension between Yusuf and Purdue, as Texas
A&M itself acknowledged during oral argument. Many of our sister circuits
have made the same observation—including in Purdue itself. See 928 F.3d at
667–68. See also Sheppard v. Visitors of Virginia State Univ., 993 F.3d 230, 236
(4th Cir. 2021) (“In adopting [Purdue’s] approach, however, we find no
inherent problems with the erroneous outcome and selective enforcement
theories identified in Yusuf. In fact, either theory, with sufficient facts, may
suffice to state a plausible claim. We merely emphasize that the text of Title
IX prohibits all discrimination on the basis of sex.”); Doe v. Univ. of Denver,
1 F.4th 822, 830 (10th Cir. 2021) (“We think [Purdue’s] approach better
accords with the text and analytical framework of Title IX. But we recognize
that evidence of an erroneous outcome or selective enforcement are means
by which a plaintiff might show that sex was a motivating factor in a
university’s disciplinary decision.”); Doe v. Univ. of Scis., 961 F.3d 203, 209
(3rd Cir. 2020) (explaining that the court’s adoption of Purdue does not alter
6
Case: 21-20185 Document: 00516425000 Page: 7 Date Filed: 08/09/2022
No. 21-20185
the fact that “parties are free to characterize their claims however they
wish”).
Purdue is surely correct that we are governed by the standard set forth
in the text of Title IX—prohibiting discrimination on the basis of sex. Yusuf
is likewise correct that there are different fact patterns that could very well
state a claim of sex discrimination under Title IX.
Accordingly, we apply here the following standard, consistent with
Purdue and Yusuf: Do the alleged facts, if true, raise a plausible inference that
Texas A&M or its administrators discriminated against Van Overdam on the
basis of sex? We find they do not.
B.
To demonstrate gender bias, Van Overdam argues that the
University’s findings—i.e., that he was responsible for Act 2 but not Act 3—
are internally inconsistent. We disagree. Despite Van Overdam’s
mischaracterizations to the contrary, finding that Van Overdam was “not
responsible” for Act 3 is not remotely equivalent to finding Act 3 was
“consensual.” Under Texas A&M’s policies, a student may be found not
responsible for a nonconsensual sexual act if a reasonable person would have
misunderstood the accuser’s actions to constitute consent. See Title IX at
Texas A&M: Glossary of Terms, Tex. A&M Univ.,
https://titleix.tamu.edu/about/glossary (last visited July 25, 2022). A
reasonable person could have recognized Shaw’s lack of consent as to Act 2,
while misunderstanding her lack of consent as to Act 3.
Van Overdam’s other arguments fare no better. He repeatedly claims
that bias can be inferred from the University’s informing Shaw that she
would not need to have an attorney present at the disciplinary hearing,
because it failed to make a similar representation to Van Overdam. But Shaw
was not accused of violating the University’s policies—only Van Overdam
7
Case: 21-20185 Document: 00516425000 Page: 8 Date Filed: 08/09/2022
No. 21-20185
was. If anything, that the University did not dissuade Van Overdam from
having legal representation belies the notion that it sought to violate his
rights.
Finally, Van Overdam argues that the disciplinary panel excluded his
unspecified evidence of Shaw’s prior sexual history and mental health out of
gender bias. But the federal rules of evidence and rape-shield laws routinely
bar defendants from offering evidence of a victim’s prior sexual activity or
topics deemed harassing or irrelevant. E.g., Fed. R. Evid. 402; Fed. R.
Evid. 412; Tex. R. Evid. 412; Capps v. Collins, 900 F.2d 58, 60–61 (5th
Cir. 1990). If these restrictions are generally mandated in criminal trials—
where protections for criminal defendants are at their peak—how can they
reasonably be used to infer gender bias when applied in a university
disciplinary proceeding? In reality, what Van Overdam bemoans as the panel
“treat[ing] the accusing student with kid gloves,” was merely the panel
extending a basic level of respect to an alleged victim of sexual assault that
our laws demand in a variety of contexts.
In sum, we conclude that Van Overdam fails to raise a plausible
inference that Texas A&M discriminated against him on the basis of sex.
III.
We now consider the district court’s dismissal of Van Overdam’s due
process claim. As discussed, this ruling turns on the following question:
Does constitutional due process require that students accused of sexual
assault be granted the opportunity for attorney-led direct cross-examination
of their accusers during university disciplinary proceedings? We find that it
does not.
8
Case: 21-20185 Document: 00516425000 Page: 9 Date Filed: 08/09/2022
No. 21-20185
A.
As an initial matter, Texas A&M argues that this court lacks
jurisdiction over Van Overdam’s due process claim because he has
graduated—which, in its view, precludes any form of relief. We disagree. So
long as a plaintiff alleges a cognizable liberty interest (e.g., continued
reputational harm that may impede future employment), courts have
regularly entertained due process challenges to university proceedings after
the student has graduated. See, e.g., Doe v. Univ. of Arkansas-Fayetteville, 974
F.3d 858, 866 (8th Cir. 2020) (analyzing a former student’s due process
challenge because his disciplinary record may “interfere with his ability to
pursue graduate studies”); Flint v. Dennison, 488 F.3d 816, 824 (9th Cir.
2007) (“So long as a former student’s record contains evidence of
disciplinary sanctions, and the former student seeks ‘an order requiring
school officials to expunge from school records all mention of the disciplinary
action,’ the action is not moot.”) (quoting Hatter v. L.A. City High Sch.
Dist., 452 F.2d 673, 674 (9th Cir.1971)); Doe v. Ohio State Univ., 239 F. Supp.
3d 1048, 1075 (S.D. Ohio 2017) (analyzing plaintiff’s due process challenge
“even though he had already graduated”); Doe v. Univ. of Cincinnati, 173 F.
Supp. 3d 586, 598 (S.D. Ohio 2016) (explaining that a former student’s
lawsuit seeking expungement of his academic disciplinary record “would not
be moot as a result of his graduation”).
Van Overdam alleges a cognizable liberty interest in seeking to restore
his reputation and clear his student disciplinary record. So the district court
did not err in exercising jurisdiction over Van Overdam’s due process claim.
B.
In Walsh v. Hodge, our court analyzed “The Right to Confront One’s
Accuser in a University Proceeding.” 975 F.3d 475, 483 (5th Cir. 2020), cert.
denied, 141 S. Ct. 1693 (2021). There, we found a university had violated a
9
Case: 21-20185 Document: 00516425000 Page: 10 Date Filed: 08/09/2022
No. 21-20185
professor’s due process rights by adjudicating sexual harassment allegations
against him without hearing live testimony from the accusing student. Id. at
484–85. Instead, the accused professor only received “snippets of quotes”
with no “opportunity to test [his accuser’s] credibility.” Id. at 485.
In Walsh, we observed that a university could have avoided a due
process violation by doing precisely what Texas A&M did here: “the
Committee or its representative should have directly questioned [the
accusing student], after which Walsh should have been permitted to submit
questions to the Committee to propound to [her].” Id. “In this respect, we
agree with the position taken by the First Circuit ‘that due process in the
university disciplinary setting requires some opportunity for real-time cross-
examination, even if only through a hearing panel.’” Id. (quoting Haidak,
933 F.3d at 69). Notably, the court “stop[ped] short of requiring that the
questioning of a complaining witness be done by the accused party, as we
have no reason to believe that questioning by a neutral party is so
fundamentally flawed as to create a categorically unacceptable risk of
erroneous deprivation.” Id. (cleaned up).
Van Overdam makes two arguments for distinguishing Walsh. First,
he says that Walsh involved accusations of sexual harassment, rather than a
quasi-criminal accusation of sexual assault. But Van Overdam was merely
suspended for a semester before being permitted to resume his studies and
extra-curricular activities, so he acknowledges that his interest is limited to
the impact of Texas A&M’s findings on his reputation. This is undoubtedly
a legitimate interest. But it does not serve to distinguish Walsh, which
similarly involved reputational harm. Walsh, 975 F.3d at 483. Moreover,
Walsh broadly addressed what “due process in the university disciplinary
setting requires.” Id. at 485 (quotations omitted). It also relied on out-of-
circuit authority involving disciplinary adjudication of sexual assault
allegations against a student. Id.
10
Case: 21-20185 Document: 00516425000 Page: 11 Date Filed: 08/09/2022
No. 21-20185
Next, Van Overdam argues that Walsh “asked for the right to ask the
questions himself,” while Van Overdam merely sought to have his attorney
do so. This argument misstates the facts of Walsh: Walsh did not assert the
right to question his accuser. Id. at 485 n.31.
Applying Walsh to the present case, we conclude that Texas A&M did
not violate Van Overdam’s due process rights. Van Overdam received
advanced notice of Shaw’s allegations against him. He was permitted to call
witnesses and submit relevant, non-harassing evidence of his innocence to a
neutral panel of administrators. He was represented by counsel throughout
the entirety of his disciplinary proceeding. He had the benefit of listening to
Shaw’s description of the allegations directly. And he and his attorney had
the opportunity to submit an unlimited number of questions to the
disciplinary panel.
***
We affirm.
11