Fourth Circuit Establishes Due Process Right to Cross-Examination in University Disciplinary Hearings- Jacob Doe v. UNC, et al.
In a lawsuit brought by Nesenoff & Miltenberg, LLP on behalf of a male student against the University of North Carolina and several of its administrators, the Fourth Circuit recently established a due process right to cross-examination in the university disciplinary context. The plaintiff, Jacob Doe, a former student of the University of North Carolina at Chapel Hill (“UNC”), was investigated for sexual assault after four female students, Jane Roes 1-4, made a joint complaint against Doe consisting of allegations of non-consensual sexual interactions allegedly occurring between March of 2020 and January of 2021. Upon receipt of the joint complaint, UNC imposed an immediate interim suspension and Doe’s prestigious scholarship was revoked. UNC proceeded to investigate the four complaints and ultimately, Doe appeared for four separate hearings on the charges.
Numerous procedural errors and biases permeated the investigations and adjudications of the cases against Doe, including (i) a failure to disclose potentially exculpatory evidence to Doe; (ii) a failure to inform Doe that Roes 1 and 2 had withdrawn their complaints against him; (iii) a reliance on false allegations, of which Doe was not notified, to maintain Doe’s interim suspension; and (iv) the inclusion of information about each complaint in the records for the other matters despite the required bifurcation of the proceedings. Arguably, however, the most egregious error occurred during the Jane Roe 1 hearing. Midway through Doe’s advisor’s cross-examination of Roe 1, the hearing panel chair permitted Roe 1 to leave the hearing, and allowed Roe 1’s attorney to step in and testify in her place. Ultimately, Doe was found responsible for sexual misconduct in the Roe 1 and Roe 4 matters, resulting in an expulsion from every institution in the University of North Carolina System, and a permanent disciplinary notation on his student record. Doe thereafter commenced an action against UNC and various administrators in February of 2023, for a violation of Title IX, denial of 14th amendment procedural due process, breach of contract, and other state law claims.
Defendants moved to dismiss Plaintiff’s Complaint, arguing that Plaintiff failed to plausibly allege a Title IX claim and that the remainder of Doe’s claims were barred by sovereign and/or qualified immunity. In March 2024, the District Court largely denied Defendants’ motions, holding that Plaintiff plausibly alleged a Title IX claim, and rejecting Defendants’ sovereign immunity and qualified immunity defenses. Defendants appealed the District Court’s decision to the Fourth Circuit Court of Appeals based on the collateral order doctrine, which permits immediate review of orders declining to dismiss §1983 claims against state officials claiming sovereign or qualified immunity.
Andrew Miltenberg and Tara Davis argued the appeal before the Fourth Circuit in January 2025. The Fourth Circuit issued its decision in April 2025, reversing in part, affirming in part, and dismissing in part.
First, the Fourth Circuit reversed the District Court’s decision denying the Defendants’ motion to dismiss based on sovereign immunity, holding that the UNC entities were arms of the state and thus entitled to 11th amendment immunity.
Second, the Fourth Circuit affirmed the District Court’s refusal to dismiss Plaintiff’s procedural due process claims against the individually named defendants on the basis of qualified immunity. The Court explained that, to determine whether employee defendants are entitled to qualified immunity, “we must consider whether (1) the facts ‘make out a violation of a constitutional right’ and (2) whether that right was ‘clearly established’ at the time of the defendant[s’] alleged misconduct.” The Court observed that the “concerns Doe raises are serious ones”, but noted that the language from its prior cases had not created a clearly established right to cross-examination in university disciplinary cases, at the time of Doe’s proceedings, precluding his claim for damages against the individual defendants. Nonetheless, the Court recognized:
“[E]mbedded in the foundations of our adversarial system of justice, that cross-examination is ‘the greatest legal engine ever invented for the discovery of truth.’ Often at the heart of sexual misconduct disputes is the matter of consent. Witness credibility and recollection are crucial in such proceedings, and this renders tools for reaching the truth all the more important.”
The Court went on to state that “as a matter of procedural due process, an accused must be afforded the meaningful hearing to which they are entitled.” The Court made clear that from this decision forward, the right to cross-examination in student disciplinary proceedings will be deemed a clearly established right for due process purposes, stating:
“Going forward, cross-examination will materially assist in ensuring a meaningful hearing in higher-education disciplinary proceedings. This is particularly true where, as here, (1) the resolution of a disciplinary charge turns on credibility determinations, and (2) the potential sanctions are severe.”
The Court signaled that university adjudicators will retain discretion to impose limits on cross-examination depending on the facts of a given case, but noted that the “underlying question, of course, is whether the hearing as a whole was meaningful in substance and not just in form.”
Third, while the employee defendants were shielded from damages by qualified immunity, the Court established that Plaintiff was entitled to injunctive relief, pursuant to the Ex parte Young doctrine. Specifically, the Fourth Circuit recognized that Doe sufficiently alleged a liberty interest sufficient to trigger procedural due process protections, and that the erroneous disciplinary record of his expulsion was an ongoing or prospective injury for which he could seek equitable relief. Thus, Plaintiff was permitted to pursue injunctive relief against the individual defendants.
Finally, the Court declined to exercise the sparingly used tool of pendent appellate jurisdiction over Plaintiff’s Title IX claim. The Court found that although the Title IX claim was “factually related to the question of qualified immunity, the two issues were not ‘inextricably intertwined.’” In other words, the issue of whether defendants could avail themselves of qualified immunity would not ‘necessarily resolve’ whether plaintiff plausibly stated a Title IX claim, nor was a review of the Title IX claim necessary to resolve the immunity issues considered on appeal. The Court did not express an opinion concerning the merits of Plaintiff’s Title IX claim.
In sum, going forward, courts within the Fourth Circuit (which includes Maryland, Virginia, West Virginia, North Carolina, and South Carolina) should recognize that students involved in university disciplinary proceedings have a due process right to cross-examination, when (1) the resolution of the charge turns on credibility determinations, and (2) the potential sanctions are severe, as was the case in Jacob Doe v. UNC, et al. This is a significant development not only in the Fourth Circuit, where courts have in the past been hesitant to recognize due process protections for students accused of misconduct, but is also expected to have implications on how courts in other circuits evaluate the necessity of procedural protections in Title IX and university disciplinary proceedings in the future.