A federal judge in New Mexico dismissed a former student’s lawsuit against specific administrators at the University of Mexico, despite sympathizing with the former student’s claim that his constitutional rights were violated.

Judge James Browning put out an order in response to a lawsuit filed by a former student, known as J. Lee in the suit filing, against UNM, according to the Foundation for Individual Rights in Education (FIRE). Lee was previously accused of sexual misconduct and UNM had already expelled him, despite the judge’s claims that due process was not sufficiently put forth.

"This kind of unilateral action by unaccountable bureaucrats showed a fundamental disregard for both stakeholders and the democratic process"

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The lawsuit, filed by Lee, claims that the defendants deprived him of a “protected liberty interest” regarding his good reputation, and a “protected property interest” in not providing him procedural safeguards, which he asserts led to his expulsion.

Such procedural safeguards include “an adequate notice of the allegations, an adequate opportunity to respond, the opportunity to cross-examine his accuser, the identification of all of the evidence and witnesses on which the Defendants relied during the investigation, a thorough and impartial investigation, and the active participation of legal counsel during the disciplinary proceedings,” according to Lee.

Lee also claims that alleged damages caused to him violated the Constitution of the State of New Mexico and that the Defendants violated Title IX’s gender bias statutes in its treatment of him.

The U.S. District Court for the District of New Mexico concluded that Lee has sufficient facts to “state a plausible Fourteenth Amendment procedural due process claim for injunctive and declaratory relief” against the defendants due to his protected property and liberty interests and that Lee’s allegations feasibly support findings that he was not provided procedural safeguards that would ensure “basic fairness.”

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The court concluded that the preponderance of the evidence against Lee does not provide sufficient grounds for the kind of disciplinary investigation that led to Lee’s expulsion, given the weight and consequences of the accusations of sexual misconduct, which UNM noted in his transcript. The Court also asserts that Lee’s claim regarding the unconstitutionality of the process put forth by the defendants is also supported by the fact that UNM holds evidentiary hearings for all forms of misconduct, except for cases of sexual misconduct.

Despite the credence that the court afforded Lee’s case, it concluded that the former student cannot successfully sue the various defendants in their personal capacities under 42 U.S.C.

First, UNM is not a “person” under 42 U.S.C. 1983, which only deals in matters of individual persons depriving other individuals of their civil rights. Lee, therefore, cannot sue under this statute, according to Browning. In addition, because Lee’s due process rights were not definitively established within the confines of the university’s procedures, individual defendants, such as the administrators, are eligible for qualified immunity, and the plaintiff is unable to sue because there was no breach of any contractual obligations under the University’s sexual misconduct operational guidelines.

The Court also found that the Defendants are granted governmental immunity under the New Mexico Torts Claims Act, rendering Lee unable to appropriately sue the defendants for damages made in violation of the Constitution of the State of New Mexico, despite the fact that, according to Collins & Collins Attorneys at Law, the New Mexico Torts Claims Act excludes immunity “for civil rights claims and most personal injury/wrongful death claims.”

Lee dropped his claim regarding the school’s violations of Title IX policy.

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The court granted the requests for damages made by Lee in the Due Process Motion, as well as requests submitted via the Title IX Motion and the Contract Motion, but denied the requests in the Due Process Motion for declaratory and injunctive relief. The lawsuit is still ongoing against the University of New Mexico and its Board of Regents.

Ultimately, the Court ordered that all of the defendants' motions for dismissal be granted.

But Browning asserts that the lack of evidentiary hearings for sexual misconduct cases and the preponderance of evidence providing sufficient grounds for the kind of investigation that led to Lee’s expulsion could both be unconstitutional practices.

“This result, while disappointing, is not altogether surprising,” FIRE writer Samantha Harris said, in response to Browning’s opinion and the Court’s conclusions. “Until the recent deluge of lawsuits brought by students accused of sexual misconduct, the law surrounding students’ due process rights in campus proceedings was not very well fleshed-out. Recently, a growing number of courts have begun to clarify the scope of these rights, but Judge Browning clearly felt that the parameters were still insufficiently clear to hold university administrators personally liable.”

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“In 2011, the Education Department encouraged colleges and universities to move to a ‘preponderance of evidence’ standard by sending a "Dear Colleague" letter, rather than going through the proper procedure to change major departmental policies,” Independent Women’s Forum (IWF) senior fellow Nicole Neily told Campus Reform.

“Notice and comment periods exist for a reason, and this kind of unilateral action by unaccountable bureaucrats showed a fundamental disregard for both stakeholders and the democratic process,” Neily said.

The IWF senior fellow refers to what she sees as a positive development in Title IX policy, citing Education Secretary Betsy DeVos’s change in the traditional Title IX rules to allow schools to give schools discretion over which due process standards they will follow in sexual assault cases.

“Once these revised Title IX rules have been finalized, schools will have clear - and binding - guidance on how to adjudicate sexual assault cases, in a way that protects all parties while respecting basic civil rights," Neily told Campus Reform. "Sexual assault is a serious matter, and deserves to be treated accordingly.”

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