An interlocutory appeal was filed under 28 U.S.C. 1292(b) in the case of Austin Van Overdam against Texas A&M University and several officials. The appeal addresses two critical legal questions: the appropriate pleading standard for a Title IX challenge related to university disciplinary proceedings, and whether due process mandates that students accused of sexual assault have the right to attorney-led direct cross-examination of their accusers during these proceedings.
The case involves a complaint made by Hannah Shaw against Van Overdam, detailing an incident of sexual interaction in which she claimed the first act was consensual but subsequent acts included non-consensual sodomy. Following Shaw's complaint, Texas A&M organized a disciplinary hearing where both parties attended, but Van Overdam was not allowed to directly cross-examine Shaw. Instead, he could submit written questions, which he chose not to do, and he attempted to introduce evidence regarding Shaw’s mental health and sexual history, both of which were denied. The panel found Van Overdam responsible for one act of misconduct, leading to a semester suspension.
In 2018, Van Overdam filed a lawsuit against the university and officials, claiming sex discrimination under Title IX and violation of due process under 42 U.S.C. 1983. His Title IX claims were based on theories of erroneous outcome and selective enforcement, asserting that the university wrongfully found him responsible and enforced its policies against him based on his gender.
Van Overdam claims that the University's refusal to allow his attorney to cross-examine Shaw directly infringed upon his due process rights. The district court dismissed his Title IX erroneous outcome and Section 1983 due process claims but permitted his Title IX selective enforcement claim to proceed, which the court found only marginally met the pleading requirements. Van Overdam's motion for reconsideration was denied, and the district court certified its decisions for interlocutory appeal under 28 U.S.C. § 1292(b) due to two key legal questions. The court of appeals granted the appeal, which reviews the certified orders de novo. The two controlling legal questions identified are: (1) the appropriate pleading standard for a Title IX claim concerning a university's disciplinary process, and (2) whether due process mandates that students accused of sexual assault must have the opportunity for attorney-led direct cross-examination of their accusers in such proceedings.
Title IX prohibits sex-based discrimination in educational programs receiving federal funds. Two analytical frameworks exist for Title IX challenges to university disciplinary actions, one being the “Yusuf framework,” which includes four theories of liability: erroneous outcome, selective enforcement, archaic assumptions, and deliberate indifference. This framework has been consistently utilized by various circuit courts. For a claim of erroneous outcome, the plaintiff must provide specific facts that create doubt about the disciplinary proceeding’s accuracy and demonstrate a connection between the flawed outcome and gender bias.
The Seventh Circuit's framework from Doe v. Purdue University clarifies that while some circuits apply formal tests for bias in university disciplinary actions, such tests are not necessary for Title IX claims. The case emphasizes that the central question for any Title IX claim is whether the alleged facts can plausibly suggest that the university discriminated against the plaintiff based on sex. Van Overdam's Title IX claim, based on the Yusuf framework—specifically erroneous outcome and selective enforcement theories—was evaluated by the district court, which found insufficient evidence for an erroneous outcome and only a minimal connection for selective enforcement. Texas A&M maintained that the court should adhere to the Yusuf standard, which it has previously applied, although it has not formally adopted Purdue. The court noted that both Yusuf and Purdue are compatible and acknowledged that evidence of erroneous outcomes or selective enforcement can indicate sex discrimination. The court ultimately applied the standard from both frameworks and concluded that the facts presented did not support a plausible inference of discrimination. Van Overdam's argument regarding inconsistent findings was dismissed, as the court clarified that a finding of "not responsible" does not equate to "consensual" under Texas A&M’s policies, which allow for misunderstanding in cases of consent.
Van Overdam's claims of bias are unfounded, as the University’s advice to Shaw about legal representation did not extend to him, given that only he was accused of policy violations. The absence of dissuasion against Van Overdam obtaining legal counsel suggests no infringement on his rights. His argument regarding the exclusion of evidence related to Shaw’s sexual history and mental health as evidence of gender bias is unconvincing; such exclusions are mandated by federal and state rape-shield laws, which apply stringent protections to victims in both criminal and university disciplinary proceedings. Van Overdam’s perception of the panel favoring Shaw reflects the legal obligation to respect victims rather than any bias against him. Consequently, he fails to demonstrate that Texas A&M discriminated against him on the basis of sex.
Regarding the due process claim, the key issue is whether constitutional due process mandates attorney-led cross-examination of accusers in university hearings. The court finds that it does not. Texas A&M contends that the court lacks jurisdiction over Van Overdam’s due process claim because he has graduated. However, the court disagrees, noting that due process challenges remain valid post-graduation if they involve a legitimate liberty interest, such as potential reputational harm affecting future employment. Various cases illustrate that courts have entertained similar claims from former students, asserting that Van Overdam's interest in restoring his reputation and clearing his record justifies the district court's jurisdiction over his due process claim.
In Walsh v. Hodge, the court determined that a university violated a professor's due process rights by adjudicating sexual harassment allegations without allowing live testimony from the accusing student, providing only limited quotes and no opportunity for the accused to challenge the accuser's credibility. The court emphasized that due process in university disciplinary actions requires some form of real-time cross-examination, ideally through a hearing panel, but did not mandate that the accused conduct the questioning themselves. Van Overdam attempted to differentiate his case from Walsh by arguing that his situation involved quasi-criminal accusations of sexual assault and that he sought to have his attorney ask questions rather than doing so personally. However, the court found these distinctions unpersuasive, noting that Van Overdam's case also involved reputational harm and that Walsh broadly addressed due process requirements in university settings. Van Overdam was afforded due process rights, including prior notice of allegations, the ability to present witnesses and evidence, legal representation, direct access to the accuser's testimony, and the chance to submit extensive questions to the disciplinary panel. Consequently, the court affirmed that Texas A&M did not violate Van Overdam’s due process rights.
