Ralph Walsh, Jr. v. Lisa Hodge ( 2020 )

Case: 19-10785 Document: 00515565689 Page: 1 Date Filed: 09/15/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 15, 2020
No. 19-10785 Lyle W. Cayce
Clerk
Ralph Clay Walsh, Jr.,
Plaintiff—Appellee,
versus
Lisa Hodge; John Schetz; Lisa Killam-Worrall; Jessica
Hartos; Emily Spence-Almaguer; Sumihiro Suzuki;
Victor Kosmopoulos; Michael R. Williams; Patricia
Gwirtz; Damon Schranz,
Defendants—Appellants.
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CV-323
Before Davis, Jones, and Engelhardt, Circuit Judges.
W. Eugene Davis, Circuit Judge:
Ralph Walsh, Jr., a former medical school professor at the University
of North Texas Health Science Center (“University”), sued various
professors and school administrators (collectively, “Defendants”) under
§ 1983, alleging they violated his Fourteenth Amendment procedural due
process rights. The Defendants voted to recommend firing Walsh after
conducting a hearing to address a student’s sexual harassment claim against
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No. 19-10785
him. Walsh asserted that Defendants denied him both a fair tribunal and a
meaningful opportunity to be heard. Defendants moved for summary
judgment on the basis of qualified immunity, and the district court partially
denied the motion. Because Walsh’s deprivations of due process were not
clearly established constitutional rights, we REVERSE the district court’s
denial of qualified immunity and RENDER judgment in favor of
Defendants.
I. BACKGROUND
Walsh is a doctor in osteopathic manipulative medicine (OMM) and
family medicine. He served as an Assistant and Associate Professor for the
University, where he both taught and engaged in clinical work from 2011 to
2015. The University could terminate Walsh before the expiration of his
employment contract only for good cause.
In October 2014, Walsh attended a medical conference in Seattle with
two fellow University faculty members and two medical students. The
conference included a formal banquet consisting of a reception, dinner, and
dancing. All parties consumed alcohol, and the evening soon became “festive
and somewhat boisterous.”
When the conference ended and the parties returned to Texas, one of
the two students, Student #1, promptly filed a Title VII complaint with the
University. She alleged Walsh sexually harassed her at the banquet. The
University hired attorney Lisa Kaiser to investigate Student #1’s complaint.
Kaiser interviewed all parties and prepared a report documenting the
allegations, along with details of her investigation and an ultimate
recommendation.
Kaiser’s report detailed the evening from Student #1’s perspective.
Student #1 “complained that Dr. Walsh put his arm around her, rubbed her
back and touched her buttocks after the dinner service.” Student #1 also
observed Walsh “standing behind her while she was sitting, and he was
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looking down her dress,” becoming more aggressive as the evening wore on.
She reported feeling uncomfortable, especially when Walsh repeatedly asked
“whether he should come to her room.” Student #1 explained that while she
felt “embarrassed” and “ashamed,” she did not want to leave or be “that
student” who did not participate; she “did not know what to do at the time.”
Student #1 also expressed unease over an email Walsh sent her the
morning after the banquet. Part of the email read, “Hi. Are you and [Student
#2] still here? You are welcome to do some hands-on training with me at
OES.” Student #1 understood the phrase “hands-on training” to be sexually
suggestive and left the conference two days early as a result. She explained
that, upon returning to school, she still felt “embarrassed” and “distracted,”
and she no longer wanted to come to campus. She stressed that Walsh, as her
professor, should have been someone whom she could trust.
Kaiser next interviewed the other parties present that evening:
Student #2, Faculty Member #1, and Faculty Member #2. Student #2
confirmed that Student #1 looked “uncomfortable.” Faculty Member #1 and
#2 saw the controversy differently. Faculty Member #2 said she did not see
anything inappropriate. She explained Walsh’s behavior by reasoning that
the medical profession is “very handsy” with “quite a bit of hugging,” but
that students are in a “different mindset,” and she could see “how students
can misinterpret.” She argued that Student #1 “could have left without
making a scene” had she wished. Faculty Member #1 echoed Faculty
Member #2’s statements, remarking that “nobody left the event crying.”
But he also recalled walking Student #1 back to her room at her request,
because she feared Walsh would be waiting for her when she got there.
Kaiser next interviewed Walsh, who contested Student #1’s depiction
of the evening. He stressed the flirtation was mutual—Student #1 at no point
communicated her unease to him. Indeed, he claimed she reciprocated his
advances: she sat on his hand, danced with him, and held hands throughout
the evening. He argued photos from the evening corroborated that Student
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#1 was at no point uneasy. He only asked to walk her to her room because he
worried she had too much to drink; moreover, she replied, “Maybe. I don’t
know. I’ll let you know,” portraying no discomfort. As to the email he sent
the next morning, Walsh explained he sought to tell Student #1 in person that
he regretted their flirtation, since he is a married man. “Hands-on training”
carried no double entendre, he clarified, because this terminology is
frequently used by the OMM group. After hearing from Walsh, Kaiser re-
interviewed Student #1.
Kaiser’s report concluded that the interviews substantiated Student
#1’s allegation. Kaiser sent her report to the Dean of the University, who
then recommended Walsh’s termination. Walsh learned of Kaiser’s report
and the decision to take disciplinary action, and he appealed the decision to
the University’s Faculty Grievance and Appeal Committee (“Committee”).
Soon thereafter, Patricia Gwirtz, Chair of the Committee, sent Walsh
a letter outlining the charges against him, a list of the Committee’s witnesses,
and the evidence it planned to consider. The letter also informed Walsh he
could set up an appointment to review Kaiser’s report and take notes. The
Committee gave Walsh 90 minutes to present his case.
During the next five weeks, Walsh reviewed Kaiser’s redacted report
twice, and he prepared a five-page letter to the Committee outlining his
defenses. Walsh sought to circulate photos from the banquet that he believed
was evidence that Student #1 welcomed his flirtations, but Gwirtz
determined they were not relevant.
The Committee consisted of eight voting members and Gwirtz, who
served as chair with a tiebreak vote. Kaiser testified first at the hearing. She
answered the Committee’s questions, echoing her findings and explaining
how she went about interviewing the parties.
Walsh was not represented by counsel at the hearing but was
accompanied by a fellow professor, Dr. Gamber. On cross-examination,
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Walsh challenged Kaiser’s account of the evidence, which he argued ignored
his side of the story.
Walsh then offered his account of the evening. Much of his testimony
was spent explaining that he viewed their interactions as mutual flirtation,
and repeatedly urged that Kaiser’s report was “inaccurate” and biased. At
numerous points, Walsh sought to bring up the photos from the evening but
was refused each time.
The University offered two other witnesses: Dean Don Peska, who
outlined the charges against Walsh and produced evidence on behalf of the
University, and Director of Human Resources Dana Perdue, who explained
the University’s investigative process. Walsh, meanwhile, called Julie
Innmon, a labor and employment attorney with experience conducting sexual
harassment investigations; she testified to the procedural deficiencies of the
hearing. Walsh had two other witnesses who spoke to his character, as well
as six other character witnesses who provided written testimony to the
Committee.
When the hearing concluded, the Committee found that Walsh’s
conduct violated the provisions of the University’s Faculty Policy by a 6-0-2
vote and the University’s Faculty Bylaws by a unanimous vote. The
Committee recommended that Walsh be terminated for violating the
University’s Policy No. 05.205, Sexual Harassment, and Article XIII of the
University’s Faculty Bylaws. The University Provost, after reviewing the
record, agreed with the Committee and recommended to the University’s
President that Walsh should be terminated. Walsh was given the opportunity
to appeal this decision. Walsh submitted another letter to appeal the
Committee’s finding, but the President agreed with the Committee and
terminated Walsh five months before the end of his year-long contract.
Walsh filed a § 1983 suit against the University and its faculty
members/administrators involved in his termination, each in his or her
individual capacity. The University officials moved for summary judgment
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on grounds that they did not violate Walsh’s procedural due process rights
and were entitled to qualified immunity. The district court partially granted
Defendants’ motion, holding that Walsh was adequately apprised of the
charges against him. The court otherwise denied the motion. Defendants
timely appealed the court’s ruling that they were not entitled to qualified
immunity.
II. DISCUSSION
A. Standard of Review
We first address our jurisdiction to hear this appeal. While a denial of
summary judgment is not a final judgment, the Supreme Court has held that
it may be considered a collateral order capable of immediate review when
(1) the defendant is a public official asserting qualified immunity, and
(2) “the issue appealed concerned, not which facts the parties might be able
to prove, but, rather, whether or not certain given facts show a violation of
‘clearly established’ law.” 1
“A denial of summary judgment based on qualified immunity is
reviewed de novo.” 2 Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” 3 When assessing an interlocutory
appeal for qualified immunity, however, we cannot review a district court’s
conclusions that a genuine issue of fact exists concerning whether a
defendant engaged in certain conduct. 4 We must instead “review the
complaint and record to determine whether, assuming that all of [plaintiff’s]
factual assertions are true, those facts are materially sufficient to establish
1
Johnson v. Jones, 515 U.S. 304, 311 (1995) (citation omitted).
2
Wallace v. Cty. of Comal, 400 F.3d 284, 288 (5th Cir. 2005).
3
Fed. R. Civ. P. 56(a).
4
Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc).
6
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that defendants acted in an objectively unreasonable manner.” 5 In other
words, “we can review the materiality of any factual disputes, but not their
genuineness.” 6
This analysis requires two steps. First, we must determine whether
Walsh suffered a violation of his procedural due process rights as a matter of
law. 7 Second, we must decide whether the Defendants’ conduct was
objectively unreasonable in light of clearly established law at the time of the
incident. 8 “Courts have discretion to decide which prong of the qualified-
immunity analysis to address first.” 9 While courts should “think hard”
before addressing the constitutional question, “it remains true that following
the two-step sequence—defining constitutional rights and only then
conferring immunity—is sometimes beneficial to clarify the legal standards
governing public officials.” 10
B. Walsh’s Procedural Due Process Rights
“Procedural due process imposes constraints on governmental
decisions which deprive individuals of ‘liberty’ or ‘property’ interests within
the meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment.” 11 The Supreme Court has held that procedural due process is
implicated when a university terminates a public employee dismissible only
for cause. 12 In determining what process is due, “[i]t is not the role of the
5
Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000).
6
Id.7
Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).
8
Id.9
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc).
10
Camreta v. Greene, 563 U.S. 692, 707 (2011).
11
Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
12
Gilbert v. Homar, 520 U.S. 924, 928–29 (1997); Mathews, 424 U.S. at 333.
Defendants try to draw a distinction between Walsh, a contract employee who could only
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federal courts to set aside decisions of school administrators which the court
may view as lacking a basis in wisdom or compassion.” 13
In Levitt v. University of Texas at El Paso, we held that due process
protections for a terminated professor include the following:
(1) be advised of the cause for his termination in sufficient detail so as
to enable him to show any error that may exist; (2) be advised of the
names and the nature of the testimony of the witnesses against him;
(3) a meaningful opportunity to be heard in his own defense within a
reasonable time; and (4) a hearing before a tribunal that possesses
some academic expertise and an apparent impartiality toward the
charges. 14
We evaluate due process using a sliding scale the Supreme Court first
introduced in Mathews v. Eldridge. 15 Courts must balance (1) “the private
interest that will be affected by the official action”; (2) “the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards”; and
(3) “the Government’s interest, including the function involved and the
be fired for cause, and a tenured employee. While the Court in Gilbert addressed “tenured”
professors, it also stressed that “public employees who can be discharged only for cause have
a constitutionally protected property interest in their tenure.” 520 U.S. at 928–29
(emphasis added). See also Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)
(teacher recently hired without tenure or a formal contract, but nonetheless with a clearly
implied promise of continued employment, had a property interest safeguarded by due
process). The Supreme Court has also held that due process may be implicated when
termination “might seriously damage [a professor’s] standing and associations in his
community.” Id. at 573.
13
Wood v. Strickland, 420 U.S. 308, 326 (1975).
14
759 F.2d 1224, 1228 (5th Cir. 1985).
15 Mathews, 424 U.S. at 335.
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fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.” 16
At issue here is whether Walsh had a meaningful opportunity to be
heard and whether the University’s tribunal was impartial. Walsh argues
Defendants denied him his due process rights because: (1) Defendants
permitted an allegedly biased committee member to hear his claim, and
(2) Defendants did not allow him to confront his accuser and introduce
photos from the evening, and instead relied on hearsay testimony from the
University’s investigator.
1. The Right to a Fair Tribunal
Walsh alleged that one of the Committee members, defendant Damon
Schranz, was not impartial because he served as Student #1’s preceptor, and
spent time with her weekly in various clinics. The court denied summary
judgment on that ground pending further discovery regarding the alleged bias
(thereby granting Walsh’s Rule 56(d) motion).
The Supreme Court has emphasized that a “fair trial in a fair tribunal
is a basic requirement of due process.” 17 Yet “bias by an adjudicator is not
lightly established.” 18 “The movant must overcome two strong
presumptions: (1) the presumption of honesty and integrity of the
adjudicators; and (2) the presumption that those making decisions affecting
the public are doing so in the public interest.” 19
16 Id.17
Withrow v. Larkin, 421 U.S. 35, 46 (1975) (quoting In re Murchison, 340 U.S. 133,
136 (1955)).
18
Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1052–53 (5th Cir. 1997).
19
Id.9
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We have held that procedural due process requires proof of actual
bias. 20 “Alleged prejudice of university hearing bodies must be based on
more than mere speculation and tenuous inferences.” 21 Walsh alleged that
only one member of the eight-person Committee knew Student #1 from
serving as one of her preceptors in medical school. That one Committee
member knew the accuser in a university proceeding is not enough to
establish a due process claim of bias in this instance. We find no merit to this
argument.
2. The Right to Confront One’s Accuser in a University
Proceeding
Walsh argues next that Defendants denied him due process by not
affording him the right to confront and cross-examine his accuser before the
Committee. Defendants argue that the district court erred in agreeing with
Walsh’s argument. The court concluded that the Due Process Clause
required Walsh be given the right to cross-examine his accuser to allow the
Committee to evaluate her credibility; cross-examining Kaiser was not a
reasonable substitute. 22 The district court then held Walsh’s right to cross-
examine Student #1 was clearly established at the time of the violation.
The first prong of qualified immunity requires us to address whether
Walsh suffered a deprivation of procedural due process by not being
permitted to cross-examine his accuser. At the outset, we recognize that the
20
Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1228 (5th Cir. 1985).
21
Duke v. N. Tex. State Univ., 469 F.2d 829, 834 (5th Cir. 1972).
22
Walsh was found in violation of § 05.205(c) of the University’s Policies. The
policy states: “Unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature (regardless of gender), even if carried out under the
guise of humor, constitute a violation of this policy when such conduct has the purpose or
effect of substantially interfering with an individual’s academic or professional
performance or creating an intimidating, hostile or offensive employment, or educational
environment.”
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“interpretation and application of the Due Process Clause are intensely
practical matters and . . . ‘(t)he very nature of due process negates any
concept of inflexible procedures universally applicable to every imaginable
situation.’” 23 Indeed, “[t]he nature of the hearing should vary depending
upon the circumstances of the particular case.” 24
To assess Walsh’s claim, we turn to the Mathews v. Eldridge sliding
scale. The first Mathews factor, Walsh’s private interest, is significant: the
loss of his employment. “[T]he denial of public employment is a serious blow
to any citizen.” 25 Moreover, the termination for sexual assault necessarily
impacts future employment opportunities as an academic in a medical school,
as a charge of sexual harassment inevitably tarnishes Walsh’s reputation. 26
The third Mathews factor, the University’s interest, is also significant.
Defendants argue the University has three public interests: (1) preserving the
University’s resources to serve its primary function of education,
(2) protecting vulnerable witnesses, and (3) providing a safe environment for
23
Goss v. Lopez, 419 U.S. 565, 578 (1975) (quoting Cafeteria Workers v. McElroy, 367
U.S. 886, 895 (1961)).
24
Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 158 (5th Cir. 1961).
25
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 589 (1972) (Marshal, J.,
dissenting). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985) (“the
significance of the private interest in retaining employment cannot be gainsaid”); Jones v.
La. Bd. of Sup’rs of Univ. of La. Sys., 809 F.3d 231, 237 (5th Cir. 2015) (terminated
professor’s interest in retaining job was “significant”).
26
See, e.g., Bd. of Regents of State Colleges, 408 U.S. at 574 (quoting Joint Anti-
Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 185 (1951) (Jackson, J., concurring)) (“[t]o
be deprived not only of present government employment but of future opportunity for it
certainly is no small injury”); cf. id. (reasoning “there is no suggestion that the State, in
declining to re-employ the respondent, imposed on him a stigma or other disability that
foreclosed his freedom to take advantage of other employment opportunities”). See also
Ludwig v. Bd. of Trustees of Ferris State Univ., 123 F.3d 404, 410 (6th Cir. 1997) (“An injury
to a person’s reputation, good name, honor, or integrity constitutes the deprivation of a
liberty interest when the injury occurs in connection with an employee’s termination.”).
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other members of the faculty and student body. We have recognized the
importance of all three.
“To impose . . . even truncated trial-type procedures might well
overwhelm administrative facilities in many places and, by diverting
resources, cost more than it would save in educational effectiveness.” 27 We
have also held that universities have a “strong interest in the ‘educational
process,’ including maintaining a safe learning environment for all its
students, while preserving its limited administrative resources.” 28 If
Student #1 had to testify in front of the Committee, Defendants contend, this
would discourage future students from coming forward. We have
acknowledged the importance of supporting victims of sexual harassment:
“Only when sexual harassment is exposed to scrutiny can it be eliminated;
thus it makes sense to encourage victims of sexual harassment to come
forward because . . . they are often the only ones, besides the perpetrators,
who are aware of sexual harassment.” 29
This, then, leads us to the second Mathews factor: the risk of
erroneously depriving Walsh of an important interest and whether additional
or substitute safeguards could be implemented to mitigate the concern about
having a student being confronted by her professor in front of a committee of
his peers. Walsh underscores that the risk of erroneous deprivation of his
rights, absent the Committee hearing Student #1’s account more directly, is
great. We agree that this is a particularly important interest in this case when
27
Goss, 419 U.S. at 583. See also Gorman v. Univ. of R.I., 837 F.2d 7, 15 (1st Cir.
1988) (“[I]t is no exaggeration to state that the undue judicialization of an administrative
hearing, particularly in an academic environment, may result in an improper allocation of
resources, and prove counter-productive.”).
28
Plummer v. Univ. of Houston, 860 F.3d 767, 773 (5th Cir. 2017), as revised (June
26, 2017).
29
E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 463 n.19 (5th Cir. 2013) (en banc)
(brackets omitted) (quoting Adams v. O’Reilly Auto., Inc., 538 F.3d 926, 933 (8th Cir.
2008)).
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the entire hearing boiled down to an issue of credibility. It was Walsh’s word
(mutual flirtation) versus Student #1’s (unwanted harassment). 30
In this case, where credibility was critical and the sanction imposed
would result in loss of employment and likely future opportunities in
academia, it was important for the Committee to hear from Student #1 and
Walsh should have had an opportunity to test Student #1’s credibility. The
University’s interests in protecting victims of sexual harassment and assault
are important too. But we are persuaded that the substitute to cross-
examination the University provided Walsh—snippets of quotes from
Student #1, relayed by the University’s investigator—was too filtered to
allow Walsh to test the testimony of his accuser and to allow the Committee
to evaluate her credibility, particularly here where the Committee did not
observe Student #1’s testimony. We conclude in this circumstance that the
Committee should have heard Student #1’s testimony. 31 As Student #1 was
a graduate student presumably in her mid-twenties, we believe that being
subjected to additional questions from the Committee would not have been
30
This case poses a stark contrast to Plummer, 860 F.3d at 770–71, where two
students were expelled after sexually assaulting a third student. Video and photos
corroborated the allegations, but the third student (too inebriated to recall the events) was
neither deposed nor asked to testify at the hearings. Id. at 772. We held that cross-
examining the amnesiac third student “could [not] have otherwise altered the impact of
the videos and photos.” Id. at 775–76. Neither the third student’s testimony nor cross-
examination “would have suggested that she consented to the degrading and humiliating
depictions of her in the videos and photos,” and the testimony “could [not] have otherwise
altered the impact of the videos and photos.” Id. at 776.
31
Defendants argue that this court should not recognize Walsh’s claim because he
did not ask to confront Student #1 during the hearing. Walsh’s explanation for this is
compelling—any attempt to secure testimony would have obviously been futile, as the
University had already denied his request to introduce photos of Student #1 in efforts to
protect her anonymity. Furthermore, the University denied Walsh during the hearing of
the opportunity to have counsel, who could have advised him to preserve any such claim.
And in any event, Walsh made his objections to the University’s procedures and its
violation of his due process clear throughout the hearing.
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so unreasonable a burden as to deter her and other similar victims of sexual
harassment from coming forward.
We are not persuaded, however, that cross examination of Student #1
by Walsh personally would have significantly increased the probative value
of the hearing. Such an effort might well have led to an unhelpful contentious
exchange or even a shouting match. Nonetheless, the Committee or its
representative should have directly questioned Student #1, after which
Walsh should have been permitted to submit questions to the Committee to
propound to Student #1.
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.’” 32 We stop 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.” 33
Because we have concluded Walsh suffered a violation of his
procedural due process rights, we proceed to the second prong of the
qualified immunity analysis: was Walsh’s constitutional right clearly
established? Qualified immunity “provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.” 34 “This is a
demanding standard.” 35 “[W]e do not deny immunity unless ‘existing
32
Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 69 (1st Cir. 2019) (citation
omitted).
33
Id.34
Malley v. Briggs, 475 U.S. 335, 341 (1986).
35
Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015).
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precedent must have placed the . . . constitutional question beyond debate.’” 36
Although we do not require a case “directly on point . . . there must be
adequate authority at a sufficiently high level of specificity to put a reasonable
official on notice that his conduct is definitively unlawful.” 37 In other words,
the “sine qua non of the clearly-established inquiry is ‘fair warning.’” 38
Walsh is correct that we have clearly established that due process for
a terminated professor includes “a meaningful opportunity to be heard in his
own defense.” 39 However, none of our case law speaks directly to the
procedures necessary to protect a professor’s interest in avoiding career-
destruction after being accused of sexual harassment. Levitt v. University of
Texas at El Paso, our only due process case concerning a professor terminated
for sexual harassment, provides us little clarity. 40 In Levitt, the University’s
rules permitted the professor to confront witnesses (though it is unclear if
these witnesses included his accusers). 41 The professor alleged the
University violated his due process rights in failing to follow its rules; this
included the University denying him the right to confront witnesses for two
days when he was absent from the hearing due to illness. 42 We held that the
University gave the professor all due process to which he was entitled despite
its failure to follow its rules. 43 But we did not otherwise address the right to
confront witnesses or directly hear from the accuser.
36
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011)).
37
Vincent, 805 F.3d at 547.
38
Swanson, 659 F.3d at 372 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
39
Levitt v. Univ. of Tex. at El Paso, 759 F.2d 1224, 1228 (5th Cir. 1985).
40
Id. at 1224.
41
Id. at 1226 n.1.
42
Id. at 1229 n.6.
43
Id. at 1229.
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The only other analogous case is Plummer v. University of Houston,
which centered on a university hearing for two students expelled for sexual
assault.44 In that 2017 opinion, we explicitly acknowledged that we have not
yet determined “whether confrontation and cross-examination would ever
be constitutionally required in student disciplinary proceedings.” 45
Other, less analogous cases from our circuit address the necessity of
confrontation in administrative hearings more generally—all prove similarly
inconclusive. Our first case addressing the issue of confrontation in
university hearings came in 1961, in a suit concerning student expulsion for
unidentified misconduct. 46 We held that the right to be heard does not require
“a full-dress judicial hearing, with the right to cross-examine witnesses.” 47
Ten years later, we observed that cross-examination in administrative
hearings “depends upon the circumstances.” 48
In 1986, we stated that “[w]hen an administrative termination hearing
is required, federal constitutional due process demands either an opportunity
for the person charged to confront the witnesses against him and to hear their
testimony or a reasonable substitute for that opportunity.” 49 The district
court relied on this language to conclude that Defendants violated Walsh’s
constitutional rights, and that those rights were clearly established. Yet this
language is dicta—the court was addressing whether the plaintiff had been
44
860 F.3d at 767.
45
Plummer v. Univ. of Houston, 860 F.3d 767, 775 (5th Cir. 2017), as revised (June
26, 2017).
46
Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961).
47
Id. at 159.
48
Woodbury v. McKinnon, 447 F.2d 839, 844 (5th Cir. 1971). In that case, the court
held that because of the nature of the charges (professional competence of a terminated
doctor) and the nature of the hearing (informal discussion of medical records with no
witnesses), cross-examination was not necessary. Id.49
Wells v. Dall. Indep. Sch. Dist., 793 F.2d 679, 683 (5th Cir. 1986).
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advised of the names and nature of the testimony against him, not if he had a
meaningful opportunity to be heard—and the court did not elaborate on what
qualified as a “reasonable substitute.” 50
Five years later, we again emphasized that we had not fully explored
the scope of procedural due process guaranteed to terminated faculty
members. 51 In that case, plaintiffs requested the right to have presence of
counsel, cross-examine adverse witnesses, present evidence, and obtain a
written record. 52 We held that in our past faculty termination cases, “the
aggrieved instructor was afforded a relatively formal procedure as a matter of
state law or institutional policy. We believe that the due process clause, of its
force, requires little formality.” 53
Thus, as the above discussion makes clear, before today we have not
explicitly held that, in university disciplinary hearings where the outcome
depends on credibility, the Due Process Clause demands the opportunity to
confront witnesses or some reasonable alternative. Our sister circuits,
meanwhile, are split on this issue. 54 And the Department of Education
50
Id.51
Tex. Faculty Ass’n v. Univ. of Tex. at Dall., 946 F.2d 379 (5th Cir. 1991).
52
Id. at 389.
53
Id. Because the decision to terminate faculty was incident to the termination of
an entire academic program, the court found that the right to confront adverse witnesses
would do little to aid the truth-seeking process. Id.54
Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc) (“Where no
controlling authority specifically prohibits a defendant’s conduct, and when the federal
circuit courts are split on the issue, the law cannot be said to be clearly established.”). The
Second, Eighth, and Eleventh Circuits have held that due process does not generally
include the opportunity to cross-examine in university proceedings. See Nash v. Auburn
Univ., 812 F.2d 655, 664 (11th Cir. 1987); Riggins v. Bd. of Regents of Univ. of Neb., 790 F.2d
707, 712 (8th Cir. 1986); Winnick v. Manning, 460 F.2d 545, 549 (2d Cir. 1972) (though
noting cross-examination may be essential to a fair hearing when credibility is at issue). The
First, Sixth, and Tenth Circuit have held the opposite. See Haidak v. Univ. of Mass.-
Amherst, 933 F.3d 56, 69 (1st Cir. 2019) (with the caveat that the accused may not be
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recently revised Title IX regulations to require universities to permit cross-
examination of all witnesses, further demonstrating how in flux this right is. 55
Nor can we hold, as Walsh contends, that “a meaningful opportunity
to be heard” should have put Defendants on notice that their actions were
unlawful. The clearly established standard “requires a high ‘degree of
specificity.’” 56 Our case law does not make clear that the University’s use of
an investigator to interview the accused student and face cross-examination
at the hearing violated Walsh’s due process rights. Walsh presents us with
no binding or persuasive authority for the proposition that the Committee
was required to give Walsh the opportunity to test Student #1’s version of
the events more than it did.
Because of our conflicting, inconclusive language in past cases, we
cannot find that Defendants “knowingly violate[d] the law.” 57 And, because
of all the opportunities Defendants afforded Walsh to be heard, we cannot
conclude Defendants were “plainly incompetent” in denying Walsh the right
to cross-examine Student #1 or some substitute method to test her
testimony. 58 The district court, therefore, erred in denying Defendants’
motion for summary judgment on the basis of qualified immunity for these
claims. 59
allowed to do the confronting); Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018); Tonkovich
v. Kan. Bd. of Regents, 159 F.3d 504, 517–18 (10th Cir. 1998).
55
See Summary of Major Provisions of the Department of Education’s Title IX Final
Rule, DEPARTMENT OF EDUCATION (May 13, 2020), page 7, https://www2.ed.gov/about
/offices/list/ocr/docs/titleix-summary.pdf.
56
District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Mullenix v.
Luna, 136 S. Ct. 305, 309 (2015)).
57
Malley v. Briggs, 475 U.S. 335, 341 (1986).
58
Id.59
Walsh also argues that the Committee’s refusal to admit four photos taken of
Walsh, Student #1, and the other attendees during the evening in question violated his due
process rights. The four posed photos depict generally that the attendees were having fun,
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III. CONCLUSION
Defendants are entitled to qualified immunity. Therefore, the district
court’s order denying Defendants’ motion for summary judgment on the
basis of qualified immunity is REVERSED, and judgment is RENDERED
in favor of the Defendants.
and one of the photos appears to show Student #1 leaning into Walsh in the group photo.
But no record was established about when in the evening the photos were taken in relation
to when Walsh’s alleged improper behavior occurred. As we noted above, the Committee
should have examined Student #1 and given her an opportunity to explain how the photos
supported her testimony that she was uncomfortable with Walsh’s actions. However, we
do not agree with the district court that the Committee’s decision to exclude the photos
was a violation of Walsh’s clearly established due process rights. See Shawgo v. Spradlin,
701 F.2d 470, 480 (5th Cir. 1983) (concluding that although the Commission’s evidentiary
rulings “may indeed have hindered [the plaintiff’s] presentation of the defense of selective
discipline with respect to conduct that was a common practice in the [Police]
Department,” the court was “unable to say that the Commission’s rulings were
arbitrary”).
19