BRANDON AUSTIN, Plaintiff-Appellant, and DOMINIC ARTIS; DAMYEAN DOTSON, Plaintiffs, v. UNIVERSITY OF OREGON; SANDY WEINTRAUB; CHICORA MARTIN; ROBIN HOLMES; MICHAEL R. GOTTFREDSON, all in their individual capacities only, Defendants-Appellees.
No. 17-35559
UNITED STATES
June 4, 2019
D.C. Nos. 6:15-cv-02257-MC 6:16-cv-00647-MC
FOR PUBLICATION
AUSTIN V. UNIVERSITY OF OREGON
DOMINIC ARTIS; DAMYEAN DOTSON, Plaintiffs-Appellants, and BRANDON AUSTIN, Plaintiff, v. UNIVERSITY OF OREGON; SANDY WEINTRAUB; CHICORA MARTIN; ROBIN HOLMES; MICHAEL R. GOTTFREDSON, all in their individual capacities only, Defendants-Appellees.
No. 17-35560
D.C. Nos. 6:15-cv-02257-MC 6:16-cv-00647-MC
OPINION
Appeals from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding
Argued and Submitted December 6, 2018 Seattle, Washington
Filed June 4, 2019
Before: Susan P. Graber, M. Margaret McKeown, and Morgan Christen, Circuit Judges.
Opinion by Judge McKeown
SUMMARY*
Civil Rights
The panel affirmed the district court‘s dismissal of a complaint brought by three male student athletes against the University of Oregon alleging the University discriminated against them on the basis of their sex in violation of Title IX and violated their due process rights in connection with the University‘s sexual misconduct proceedings.
Following the Supreme Court‘s guidance in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the panel held that
The panel affirmed the district court‘s dismissal of the Third Amended Complaint because, putting aside mere conclusory allegations, the complaint failed to make any claims of discrimination on the basis of sex cognizable under Title IX. The panel rejected plaintiffs’ three theories under Title IX: selective enforcement, erroneous outcome, and deliberate indifference. The panel determined that plaintiffs failed to sufficiently allege that the decision to discipline them was grounded in gender bias or that the administration or outcome of the disciplinary prоceedings were flawed due to the student athletes’ sex. The panel further determined that plaintiffs waived their “deliberate indifference” theory of Title IX liability.
The panel held that the student athletes’ due process claims failed because they received constitutional due process through the University‘s disciplinary proceedings. The panel assumed, without deciding, that the student athletes had property and liberty interests in their education, scholarships, and reputation as alleged in the complaint. Nonetheless, the panel held that the student athletes received the hallmarks of procedural due process: notice and a meaningful oppоrtunity to be heard.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Alan Carl Milstein (argued), Sherman Silverstein Kohl Rose & Podolsky P.A., Moorestown, New Jersey; Marianne Dugan, Eugene, Oregon; for Plaintiff-Appellant Brandon Austin.
Brian I. Michaels (argued), Eugene, Oregon, for Plaintiffs-Appellants Dominic Artis and Damyean Dotson.
Kevin Scott Reed (argued), Office of the General Counsel, University of Oregon, Eugene, Oregon; P.K. Runkles-Pearson, Miller Nash Graham & Dunn LLP, Portland, Oregon; for Defendants-Appellees.
OPINION
McKEOWN, Circuit Judge:
These companion cases concerning campus sexual assault raise an issue of first impression in this circuit—whether the McDonnell Douglas1 evidentiary presumption applies at the pleading stage in a Title IX casе. Following the Supreme Court‘s explanation of Title VII‘s pleading requirements in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), we conclude that
BACKGROUND
Brandon Austin, Dominic Artis, and Damyean Dotson (collectively, the “student athletes“) were basketball players on scholarship at the University of Oregon (the “University“) in 2014. In March 2014, a female student accused the men of forcing her to engage in nonconsensual sex at an оff-campus apartment. She reported the alleged sexual assault to the Eugene police department within a few days. When details of the alleged assault became public, in part because the local news published the police report in full, the campus erupted in protest. Although the Lane County District Attorney ultimаtely decided not to prosecute the student athletes, the University proceeded with a formal disciplinary process.
Central to this case is the University of Oregon Student Conduct Code in effect at the time, which defined “sexual misconduct” to include penetration without explicit consent. (Other types of sexual activity contemрlated by the Code are not at issue here.) The Code also defined “explicit consent” as “voluntary, non-coerced and clear communication indicating a willingness to engage in a particular act,” including “an affirmative verbal response or voluntary acts unmistakable in their meaning.” See
The student athletes had the option to choose between two types of disciplinary hearings: a panel hearing or an administrative conference. They opted for the simpler, more streamlined administrative confеrence. According to the complaint and the University‘s Special Choice of Resolution Form, the administrative conference procedure included notice of the character
The University‘s Director of Student Conduct & Community Standards oversaw the hearing and found the student athletes responsible for sexual misconduct because they had violated the Student Conduct Code by “engaging in penetration without explicit consent.” The University suspended the student athletes for at least four years and until the female studеnt is no longer enrolled at the University (but not longer than ten years). It also declined to renew their scholarships.
The student athletes brought this action against the University and various administrators, alleging several causes of action, including Title IX claims based on sex discrimination and due process violations. The district court dismissed the Third Amended Complaint with prejudice.
DISCUSSION
I. Rule 8(a) Pleading Standard in Swierkiewicz
Despite the parties’ extensive briefing, we need look no further than the Supreme Court‘s guidance in Swierkiewicz to divine that
In Swierkiewicz, the Supreme Court reiterated that “[t]he prima facie case under McDonnell Douglas ... is an
evidentiary standard, not a pleading requirement.”3 534 U.S. at 510. Under the familiar McDonnell Douglas evidentiary presumption, once a plaintiff pleads a prima facie case of discrimination, the burden of proof shifts to the non-moving party to show non-discriminatory intent. See McDonnell Douglas, 411 U.S. at 802. The framework “is a tool to assist plaintiffs at the summary judgment stage so that they may reach trial.” Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002) (en banc), aff‘d, 539 U.S. 90 (2003).
McDonnell Douglas thus sets out “the order and allocation of proof” in a Title VII case. 411 U.S. at 800. But, the
Court has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that
plaintiffs must satisfy in order to survive a motion to dismiss. For instance, we have rejected the argument that a Title VII complaint requires greater “particularity,” because this would “too narrowly constric[t] the role of the pleadings.”
Swierkiewicz, 534 U.S. at 511 (alteration in original) (quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976)). The Court went on to explain that, “[c]onsequently, the ordinary rules for assessing the
sufficiency of a complaint apply[:] .... The liberal notice plеading of
Without citing Swierkiewicz, the Second Circuit reached the opposite result in Doe v. Columbia University, 831 F.3d 46, 55-56 (2d Cir. 2016), and applied the McDonnell Douglas presumption at the motion to dismiss stage in a Title IX case. The court did reference a previous Title VII case in which it invoked the McDonnell Douglas presumption at the pleading stage. Id. at 54–55 (analyzing Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015)). In Littlejohn, the Second Circuit recognized that Swierkiewicz eliminated the possibility of a heightened pleading standard for Title VII claims, but then construed Swierkiewicz as introducing a lower pleading standard. See Littlejohn, 795 F.3d at 309 (“Reading Swierkiewicz on its face, it appears to have meant that a Title VII plaintiff is not required to plead facts supporting even a minimal inference of discriminatory intent.“). This led the court to reason that the McDonnell Douglas presumption informs the application of Ashcroft v. Iqbal, 556 U.S. 662 (2009), in Title VII cases. See Littlejohn, 795 F.3d at 310 (“We conclude that Iqbal‘s requirement applies to Title VII complaints of employment discrimination, but does not affect the benefit to plaintiffs pronоunced in the McDonnell Douglas quartet.“). We read the Second Circuit‘s application of the McDonnell Douglas presumption at the pleading stage as contrary to Supreme Court precedent, and we decline to embrace that approach.4
II. Application of Rule 8(a) to the Student Athletes’ Title IX Claims
It is well established that, under
Despite three efforts to meеt this pleading standard and state a Title IX claim,5
The student athletes advance three theories under Title IX: selective enforcement, erroneous outcome, and deliberate indifference. The essence of the selective enforcement theory is that the decision to discipline the student athletes was “grounded” in gender bias. But the student athletes fail to allege how this is so. The complaint recites such facts as the content of the University president‘s speech and the campus protests, but does not make any plausible link connecting these events and the University‘s disciplinary actions to the fact that the student athletes are male. See Yusuf, 35 F.3d at 715 (“[A selective enforcement] claim asserts that, regardless of the student‘s guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student‘s gender.“).
Just saying so is not enough. A recitation of facts without plausible connection to gender is not cured by labels and conclusory statements about sex discrimination. See Twombly, 550 U.S. at 556 (“[A] plaintiff‘s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do ....” (internal quotations mark and alterations omitted)). Compare Swierkiewicz, 534 U.S. at 514 (detailing specific allegations in a discrimination case that linked a wrongful termination to age and national origin).
The student athletes also allege that, because the University disciplines male students for sexual misconduct but never female students, it is biased against men. But this allegedly disparate impact, even assuming it is true, claims too much. Significantly, the complaint does not claim that any female University students have been accused of comparable misconduct, and thus fails to allege that similarly situated students—those accused of sexual misconduct—are disciplined unequally.6 The district court also recognized the lack of parallelism and reasoned “[s]imply because enfоrcement is asymmetrical does not mean that it is selectively so.” We agree. Without nonconclusory allegations that the male students were treated any differently than similarly situated female students based on sex, the selective enforcement theory fails.
The erroneous outcome theory also fails because the student athletes do not articulate any basis to discern that the administration or outcomes of the disciplinary proceedings were flawed due to the student athletes’ sex. See Yusuf, 35 F.3d at 715. Even if the outcome of the administrative conference procedure was erroneous, the complaint is missing any factual allegations that show that sеx discrimination was the source of any error.
Lastly, the student athletes advance a “deliberate indifference” theory of Title IX liability, but only make passing reference to it in one line of a footnote. Without meaningful briefing on this issue,
The district court previously dismissed the student athletes’ Title IX claims with leave to amend and yet, after two efforts, they still could not allege additional facts to
sufficiently plead these claims. We affirm the district court‘s dismissal of the Title IX claims with prejudice.
III. Claims for Violations of Due Process
The student athletes’ due process claims fail because they received constitutional due process through the University‘s disciplinary proceedings.7 See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Under Mathews, we balance three factors: (1) the private interests subjected to official action; (2) the risk of an erroneous outcome and the “probable value, if any, of additional or substitute procedural safeguards“; and (3) the governmental interest involved, including fiscal and administrative concerns. See id. at 334-35. Essentially, “some form of hearing is required before an individual is finally deprived of a property interest.” Id. at 333.
We assume, without deciding, that the student athletes have property and liberty interests in their education, scholarships, and reputation as alleged in the complaint. Nonethelеss, they received “the hallmarks of procedural due process“: notice and a meaningful opportunity to be heard. Ludwig v. Astrue, 681 F.3d 1047, 1053 (9th Cir. 2012) (quoting Guenther v. Comm‘r, 889 F.2d 882, 884 (9th Cir. 1989) (order)). Notice is not an issue here and nothing in the allegations supports a claim that the student athletes did not receive a meaningful hearing with the right to be heard. Importantly, they were represented by cоunsel and given a choice of a Special Administrative Conference or a Panel Hearing with a panel of students, faculty, and staff and the option to appeal. They signed a Special Choice of
Resolution Form and chose the Special Administrative Conference. In doing so, they removed the possibility of expulsion and negotiated away a potential “negative notation” on their academic record, replacing it with a “notation of finding of Code violation – unspecified.” Because the student athletes were represented by counsel and negotiated the scope of sanctions, they can hardly be heard to cоmplain about the administrative hearing‘s procedural safeguards. Under Mathews, a hearing need not include every procedure possible, nor is one entitled to a hearing of one‘s own design. 424 U.S. at 333 (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.‘” (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965))). On these facts, the studеnt athletes were not denied due process.
Finally, we credit the University‘s focus on encouraging students’ personal integrity and cooperative (rather than coercive) interpersonal behavior, interest in providing an environment free of sexual misconduct, and setting up a disciplinary system that provides students an opportunity tо be heard. We affirm the district court‘s dismissal of the due process claims. We also affirm the dismissal of the state law
AFFIRMED.