A federal judge concluded that the University of Northern Colorado afforded a student found responsible for sexual misconduct the level of procedural protections that the U.S. Constitution requires, without violating his rights.

At the same time, U.S. Magistrate Judge Michael E. Hegarty observed that UNC’s process for investigating Torrence Brown-Smith nonetheless contained noticeable defects.

“Plaintiff has failed to plausibly plead a constitutional violation and to state a claim. If the question was whether UNC’s procedures were perfect (or even best practice), the answer would be different,” Hegarty noted in a May 10 order.

The lawsuit from Brown-Smith is part of an increasing trend of students accused of sexual misconduct who are challenging their institutions’ disciplinary proceedings. Last year, the U.S. Court of Appeals for the 10th Circuit released a key decision involving the University of Denver, finding that it was possible for a male student to sue over his expulsion on the grounds that DU’s investigatory process was biased against men.

In the original version of his lawsuit, Brown-Smith raised anti-male bias as a factor in his suspension. Hegarty dismissed that initial complaint last June, but permitted Brown-Smith to refile his claims.

Brown-Smith’s new allegations, filed in January of this year, lodged a single claim that UNC violated his right to due process under the law. He alleged that the university “conducted a superficial investigation and hearing biased against” him without affording him basic procedural safeguards.

The lawsuit described how Brown-Smith and his female accuser, identified as Jane Doe, returned to his home after a casual hangout and began to “cuddle, as friends.” The two started kissing and Brown-Smith, at one point, put his hand on Doe’s neck, believing Doe would like it. The sexual touching progressed further until Doe requested that it stop. Brown-Smith reportedly complied.

The next day, Doe texted a friend that the encounter “was consensual because he asked permission for most stuff but idk dude part of me was like let’s just see where this goes.”

Doe subsequently reported her interaction with Brown-Smith to UNC’s Title IX coordinator. Title IX is the civil rights law that prohibits discrimination on the basis of sex in federally-funded educational activities. 

An investigation ensued, at the end of which Brown-Smith met with a hearing officer and was found to have violated the UNC code of student conduct. The school rejected his appeal and suspended him for two years, preventing him from graduating in May 2020.

The Greeley Tribune published an interview last year with Doe, whose real name is Jasmine Poblano. After Hegarty dismissed Brown-Smith’s initial lawsuit, Poblano wrote to Colorado Politics to say that his “choking” of her made her fear for her safety. She added that she had blocked out the incident and only later realized the contact was not consensual. 

In his subsequent complaint, Brown-Smith described multiple pieces of the investigation as procedurally deficient. In particular, UNC did not confirm his appointment with the hearing officer until 90 minutes beforehand, even though Brown-Smith needed to submit a list of witnesses or relevant information 24 hours in advance. Brown-Smith was also unaware that his meeting with the hearing officer would actually be the formal evidentiary hearing in his investigation.

“Mr. Brown-Smith was entitled to notice that would be clear to a reasonable undergraduate student and a proper hearing. Because Mr. Brown-Smith did not receive those things, his due process rights were violated,” wrote his attorneys.

The Colorado Attorney General’s Office, which defended UNC, argued that the procedures in a Title IX investigation need not mirror those of a civil or criminal trial. Brown-Smith knew the allegations against him, received notice of his hearing date and had the opportunity to share his perspective with an investigator.

“Plaintiff had a fair opportunity to offer witnesses and evidence to the Hearing Officer and simply failed to do so,” the government explained. “Plaintiff’s own failure to understand and fully take advantage of the procedural rights afforded to him cannot be deemed a violation of constitutional due process.”

Hegarty focused on the allegations that Brown-Smith was not afforded a proper hearing – as opposed to a “meeting” with a hearing officer – nor was he able to adequately represent himself by presenting evidence or questioning his accuser. The magistrate judge determined that the school’s code of conduct advertised that hearings are “normally conducted in an informal manner,” which is what ended up happening.

While it may have been a “poor and confusing” description, reading the code of conduct “should have put plaintiff on notice that his ‘hearing’ would not be a mirror image to a ‘hearing’ in the legal sense of the word,” Hegarty observed.

He also found that UNC had given a constitutionally-adequate ability for Brown-Smith to present his side of the story.

“Plaintiff was not provided final confirmation of his meeting/hearing until the day it was set to occur. Although this may be a poor practice, it does not support Plaintiff’s claims,” Hegarty wrote.

He dismissed the lawsuit without the ability to refile.

A spokesperson for the university responded to a request for comment by pointing to Hegarty’s finding that UNC afforded Brown-Smith sufficient opportunity to be heard. Attorneys for Brown-Smith did not immediately respond to an inquiry.

The case is Brown-Smith v. Feinstein.