71 F. Supp. 3d 1217
D. Colo.2014Background
- Plaintiff Keifer Johnson, a Western State University (Western) student and former teaching assistant, had a consensual sexual relationship with student Onna Gould and exchanged sexually explicit materials, including a “Dear Onna Letter.”
- Gould’s mother and professor Susan Coykendall complained; Western initiated two disciplinary proceedings: a First Disciplinary Proceeding (related to student-conduct incidents including the letter) and a Second Title IX investigation alleging sexual misconduct.
- The First Proceeding resulted in minor sanctions (community service, counseling, probation); the Second Proceeding resulted in a finding for Johnson (no additional sanctions).
- Johnson sued under Title IX and 42 U.S.C. § 1983 (First Amendment and procedural due process claims) and asserted state-law claims (malicious prosecution, conspiracy, outrageous conduct) against Western and university officials; the operative pleading is the Third Amended Complaint.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6); the court resolved jurisdictional and pleading deficiencies and narrowed the case to a single surviving claim for prospective injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Title IX — whether disciplinary actions were motivated by gender bias | Johnson: disparate treatment (he disciplined; Gould not) and a female conspiracy show sex-based motive | Western: comparator not similarly situated; allegations don’t plausibly show gender bias | Dismissed with prejudice — Title IX claims fail for lack of plausible gender-bias allegations |
| 2. § 1983 — Due process (Second Proceeding) — whether Johnson was deprived of a protected liberty or property interest | Johnson: loss of TA role, suspension from team, reputational injury, and procedural defects | Defendants: no protected interest (no suspension/expulsion); reputational harm alone insufficient | Dismissed with prejudice — plaintiff failed to plead deprivation of a protected interest |
| 3. § 1983 — First Amendment (First Proceeding) — whether the Dear Onna Letter is protected speech and whether discipline was motivated by speech | Johnson: letter was consensual sexual fantasy; discipline punished content (speech) | Defendants: letter was sexually graphic/threatening/unprotected; Proceeding addressed behavior, not protected speech | Survives in part — claim plausibly alleges protected speech and retaliatory motivation; monetary and retrospective relief barred by Eleventh Amendment, but prospective injunctive relief (expungement) permitted under Ex parte Young |
| 4. State-law claims — compliance with Colorado Governmental Immunity Act (CGIA) notice requirement | Johnson: filed original complaint within 180 days and claims actual notice to defendants; strict compliance was allegedly impossible | Defendants: no CGIA notice filed within 180 days; jurisdictional prerequisite unmet | Dismissed without prejudice — failure to plead or show statutory notice is jurisdictionally fatal |
Key Cases Cited
- Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994) (Title IX discrimination analyses and standards)
- Goss v. Lopez, 419 U.S. 565 (U.S. 1975) (due process protections for students receiving non-de minimis suspensions)
- Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996) (no protected interest in participation in particular school-sponsored activities)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (U.S. 2007) (plausibility standard for pleadings)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (U.S. 1998) (discrimination must be "because of sex")
- Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000) (elements for First Amendment retaliation claim)
- Ex parte Young, 209 U.S. 123 (U.S. 1908) (narrow exception to Eleventh Amendment permitting prospective injunctive relief against state officers)
- Quern v. Jordan, 440 U.S. 332 (U.S. 1979) (§ 1983 does not abrogate state Eleventh Amendment immunity)