366 F. Supp. 3d 1
D.C. Cir.2018Background
- In Sept. 2015 John Doe (male GW student) and Jane Roe (female freshman) had a sexual encounter; Roe later alleged she was too intoxicated to consent and filed a complaint with George Washington University in Oct. 2017.
- A GW Hearing Panel (under GW's Sexual Harassment and Sexual Violence Policy and Code of Student Conduct) found Doe responsible for sexual assault and suspended him for one year; Doe appealed and presented new evidence.
- New evidence Doe later obtained included phone records undermining a witness's account, a toxicology report estimating Roe's BAC, a witness statement (Q.W.) describing Roe as lucid shortly before the encounter, and text messages from Roe’s roommate with limited recollection.
- A court-ordered GW Appeals Panel reviewed the written record and denied Doe's appeal; Doe sued GW alleging Title IX gender discrimination, D.C. Human Rights Act claims, breach of contract (and implied covenant), and negligence; GW moved to dismiss.
- The district court dismissed several contract-based and negligence claims but allowed to proceed: (1) breach of contract claim insofar as it challenged denial of Doe's appeal; (2) Title IX disparate-treatment claim; and (3) DCHRA disparate-treatment claim. The court dismissed the DCHRA disparate-impact claim and other contract counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract — denial of appeal | Appeals Panel ignored and misweighed new evidence (phone records, toxicology, witness statements); denial was arbitrary and capricious | Appeals Panel properly reviewed and deferred to Hearing Panel credibility findings; no contract breach | Denial of motion to dismiss as to appeal-related breach: pleadings plausibly show Appeals Panel acted arbitrarily; claim proceeds to discovery |
| Challenge to Hearing Panel member for bias | Doe lacked meaningful opportunity to challenge a panelist (Director of Greek Life) and alleges background suggesting bias | GW says procedures were followed and credibility determinations belong to Hearing Panel | Denied as to sufficiency of challenge allegation: plausible failure to provide meaningful opportunity to challenge; claim survives dismissal |
| Title IX disparate treatment (erroneous outcome) | Public pressure, OCR investigations, GW statements, and procedural irregularities create an inference of gender bias causing erroneous outcome | GW urges deference and argues no plausible link to gender bias; credibility determinations belong to campus factfinder | Denied: complaint alleges sufficient contextual indicia (OCR probes, public criticism, GW statement) and articulable doubt about outcome to survive dismissal |
| DCHRA disparate impact vs disparate treatment | Doe contends GW's neutral procedures disproportionately impact men (all respondents were men) and also asserts disparate treatment | GW argues no disparate-impact private cause under Title IX (irrelevant) and that plaintiff fails to show comparator or a basis for disparate impact | Dismissed as to disparate impact (no comparator/coverage); disparate-treatment claim under DCHRA survives (parallels Title IX claim) |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (application of pleading standard and legal conclusions)
- Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir.) (erroneous-outcome theory in campus-discipline Title IX cases)
- Doe v. Columbia Univ., 831 F.3d 46 (2d Cir.) (public pressure and institutional statements as indicia of bias)
- Doe v. Baum, 903 F.3d 575 (6th Cir.) (framework for Title IX bias theories and indicia)
- Doe v. Miami Univ., 882 F.3d 579 (6th Cir.) (discussion of contextual facts supporting Title IX claim)
- Chenari v. George Washington Univ., 847 F.3d 740 (D.C. Cir.) (university policies may create enforceable contractual rights)
- Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1 (D.C. 1987) (DCHRA imports disparate-impact concept)
- Choharis v. State Farm Fire and Cas. Co., 961 A.2d 1080 (D.C. 2008) (contract/tort distinction; tort claims cannot duplicate contract duties)