As national attention to sexual assaults on college campuses has intensified in recent years, so too has the debate about the constitutional due process protections to which students are entitled in campus disciplinary hearings. In 2011, the U.S. Department of Education, Office for Civil Rights, promulgated a “Dear Colleague” letter1 offering informal administrative guidance and numerous recommendations for changes to disciplinary hearing systems of universities that receive federal funding. In response to the letter and ensuing investigations by the Office, schools significantly restructured their sexual assault disciplinary procedures.2 Students subject to sanctions under the revised regimes have responded by suing the universities in federal court, alleging violations of Title IX3 and due process.4 Recently, in Plummer v. University of Houston,5 the Fifth Circuit held that the due process rights of two students subject to a university’s sexual assault disciplinary proceedings were adequately protected.6 Plummer is the first precedential circuit court opinion to address the merits of a student’s due process claim arising out of a sexual assault disciplinary proceeding at a public university since the Dear Colleague Letter,7 but, worryingly, the court suggested that the due process afforded to the students was constitutionally acceptable because visual evidence established the guilt of the accused.8 By presuming that photos and videos can objectively depict guilt, the court, in its due process analysis, ignored a growing body of scholarly literature questioning the “objectivity” of such evidence and opened the door to lower requirements of due process in campus sexual assault cases.
In November 2011, Ryan McConnell and Natalie Plummer were undergraduate students at the University of Houston.9 McConnell met “Female UH Student” at a bar and they went to his dorm room, where they engaged in sexual activity.10 Later, Plummer entered the dorm room to find McConnell and Female UH Student both nude and unconscious on the floor.11 Plummer took a photo of McConnell and Female UH Student.12 She also recorded two brief videos. The first depicts McConnell fondling the unresponsive Female UH Student.13 The second shows Plummer leading the (still nude) Female UH Student into the dorm elevator.14 A subsequent exam by a “Sexual Assault Nurse” found that Female UH Student suffered injuries consistent with sexual assault.15 After the incident, Plummer posted the photo to Facebook and showed the videos to her friends.16
When Female UH Student submitted a complaint to the University alleging that she was a victim of sexual assault, Richard Baker, the Vice President of the University’s Office of Equal Opportunity Services, investigated the incident.17 The University provided McConnell and Plummer with written declarations of the allegations against them, and each student retained counsel.18 Baker authored a report concluding that McConnell and Plummer violated the University’s sexual assault policies.19 Both students appealed under the University’s disciplinary procedures to a panel of University personnel, which applied a preponderance of the evidence standard in determining whether the report’s findings should be upheld.20 At their separate hearings, “McConnell and Plummer each made opening and closing arguments, testified, presented witnesses, cross-examined witnesses, and raised legal and factual objections to the panel.”21 Additionally, McConnell’s and Plummer’s attorneys participated in the hearings by “examining and cross-examining witnesses and making statements to the panel.”22 The students were notified of the evidence before the hearings, although the identities of some witnesses were redacted.23 Female UH Student did not appear before the panel and was not deposed for the proceedings.24 Ultimately, both panels upheld the investigation’s findings.25 The two students then appealed to Richard Walker, the University’s Vice President and Vice Chancellor for Student Affairs and Enrollment Services, and those further appeals were denied.26 McConnell and Plummer were expelled from the University.27
McConnell and Plummer filed a lawsuit against the University, Baker, and Walker, complaining that the defendants violated their constitutional due process rights under 42 U.S.C. § 1983 as well as their rights under Title IX.28 The district court granted the defendants’ motions for summary judgment on both the due process and Title IX claims.29 In conducting its analysis, the district court found that the University “afforded Plaintiffs a level of due process adequate under Fifth Circuit case law.”30
The Fifth Circuit affirmed. Writing for the panel, Judge Higginson31 determined that the process provided to McConnell and Plummer by the University was constitutionally sufficient.32 The panel relied on an application of the Mathews v. Eldridge33 test, which weighs three considerations to determine if the constitutional requirements for due process are met: (1) the private interest affected by government action; (2) the “risk of an erroneous deprivation” of that interest through the applicable procedures and the probable value of further procedural safeguards; and (3) the government’s interest, including the burdens that further procedural requirements would entail.34 The court found that the first and third were both “easily identified,” and implied that they were of approximately equal weight.35 The court then focused its Mathews analysis on the “risk of an erroneous deprivation” and determined that “[i]n light of the graphic conduct depicted in the videos and photo” and the “multiple, meaningful opportunities to challenge the University’s allegations, evidence, and findings” provided to the students, further procedural safeguards would not have changed the outcome of the case.36 The panel firmly declined to articulate a general “constitutional ‘floor’ for state university disciplinary procedures”37 and repeatedly emphasized the “unique facts” of the case.38
Judge Jones dissented. She excoriated the majority for not “step[ping] in to protect students’ procedural due process right,” describing the panel opinion as “impl[ying] that because [McConnell and Plummer] were guilty, they got enough due process.”39 Judge Jones argued that the majority’s reasoning was contrary to Carey v. Piphus,40 which held that “the right to procedural due process is ‘absolute’ . . . it does not depend upon the merits of a claimant’s substantive assertions.”41 She discussed several aspects of the University disciplinary process that she would have held violated the students’ due process rights.42 Judge Jones also offered a different accounting under the Mathews three-factor test.43 Finally, she argued that the majority’s citations to Flaim v. Medical College of Ohio44 and Doe v. Cummins45 were inappropriate and did not adequately support the majority’s Mathews analysis.46
The panel’s assertion that visual evidence depicted McConnell’s and Plummer’s guilt such that “further procedural safeguards would not have lessened the risk of an erroneous deprivation of [the students’] interests or otherwise altered the outcome”47 runs afoul of Supreme Court case law48 and ignores a growing body of literature documenting how subconscious biases affect viewers’ perceptions of photos and videos. Data demonstrate that human perception of video imagery is often subject to various cognitive biases and distortions, which can have a number of deleterious effects on judicial proceedings and outcomes. By incorporating visual evidence into its Mathews due process analysis as objective proof of guilt, the Plummer court threatened the rights of both victims and accused students in campus sexual assault cases by inviting lower courts to disregard the dangers of viewer bias.
Significant scholarly attention to judicial overconfidence in the contents of visual evidence arose after the Supreme Court’s treatment of a video in Scott v. Harris.49 In Scott, the Supreme Court determined that video evidence of a car chase, provided by the dashboard camera of the policeman Scott’s cruiser, “so utterly discredited [respondent’s version of events] that no reasonable jury could have believed him.”50 The Plummer court cited Scott as support for its determination that “[i]n light of the graphic conduct depicted in the videos and photo,” McConnell and Plummer were not entitled to further procedural safeguards; it described Scott as “recognizing that the existence of undisputed video evidence . . . justified summary judgment.”51 But the video evidence in Scott was not “undisputed” — Justice Stevens disputed the majority’s characterization of the video in a vigorous dissent,52 and both the district court and the Eleventh Circuit had held that the case should proceed to trial.53 Similarly, the evidence in Plummer was not “undisputed,” as McConnell and Plummer denied that the video depicted a sexual assault of Female UH Student.54 Thus, the same concerns arise after Plummer as did in the wake of Scott: both majorities shaped legal outcomes around the perceived contents of contested photos or videos, disregarding the dangers of biased interpretations of visual evidence.
The Plummer court’s characterization of the visual evidence as objective is unsurprising, but it overlooks the many ways humans misperceive photos and videos. Humans process images “differently than we do text — more quickly, with a heightened (perhaps exaggerated) confidence in our understanding, and with more emotion.”55 People also interpret photo and video evidence as particularly authoritative, blunting a viewer’s ability to critically evaluate the ambiguities and limitations of the contents.56 Indeed, the effects of judicial overconfidence in the perception of visual evidence have been studied in several doctrinal contexts.57 While humans are inclined to believe that such evidence portrays an objective truth, countless subconscious factors shape people’s perceptions of visual depictions of alleged crimes. For example, the perspective from which a video is shot affects a viewer’s understanding of the events captured on tape.58 Although certain cases might present video evidence that approaches objective indisputability, a substantial majority of cases will present interpretive difficulties, particularly when they depict emotionally charged subject matters like possible sexual assault. So, while both the Plummer majority and dissent described the photo and video as “undisputed,”59 the judges’ perceptions of the depicted events were likely shaped by forces beyond their control.
By inviting lower courts to consider “undisputed” visual evidence when evaluating due process claims arising from campus sexual assault disciplinary hearings, Plummer encourages the pernicious influence of cognitive imperfections in the courtroom. Demographic factors — including race, gender, and age — influence viewer perception of video depictions of alleged crimes.60 The risks of characterizing visual evidence as objective (thereby permitting it to shape legal outcomes) are especially stark in cases, like Plummer, that confront an alleged sexual assault.61 Accused members of minority populations long stereotyped as sexually dangerous may be particularly vulnerable to judges perceiving their actions as criminal.62 Conversely, implicit biases shaping perceptions of credibility may lead judges to interpret a recorded encounter to be less criminal based on the demographics of the alleged victim.63 Even without particular identity-based biases, misplaced judicial confidence in visual evidence could have devastating consequences. A judge recently dismissed sexual assault charges because a video showed the accuser enthusiastically leaving a bar with the accused, even though the video did not portray the circumstances immediately surrounding the alleged assault.64 In short, surface-level treatment by judges of visual evidence endangers both parties in sexual assault cases.
Plummer appears quite vulnerable to the prejudicial influences associated with visual evidence: the court relied on the photo and video evidence in rejecting all four due process claims.65 The precise effects of cognitive biases on the judges in Plummer are unknowable, but the general implications of the case are clear. Photo and video evidence appears in courtrooms with increasing frequency66 as social media and video recording become ubiquitous in American culture.67 So, the question of how visual evidence should be evaluated by legal decisionmakers seems quite likely to emerge again in the near future, especially in the university sexual assault disciplinary hearing context.68 Moving forward, courts should leave the misplaced confidence of Scott and Plummer behind and acknowledge the risks that cognitive biases pose to judges’ perceptions of visual evidence.69 The rights of both victims and the accused depend on it.