Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION
JOHN DOE, )
)
Plaintiff, )
)
vs. ) Case No. 4:19 CV 300 (JMB)
)
WASHINGTON UNIVERSITY, )
)
Defendant. )
MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss plaintiff’s amended complaint for failure to state a claim for relief, pursuant to Rule 12(b)(6), Fed. R. Civ. P. The parties have fully briefed the issues and appeared for oral argument on October 25, 2019. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Plaintiff John Doe was an undergraduate student enrolled at defendant Washington University. In April 2018, a female undergraduate student, identified here as “Jane Roe,” filed a complaint with Washington University’s Title IX Office, alleging that plaintiff sexually assaulted her. Following an investigation, Washington University concluded that plaintiff was guilty of sexual misconduct. As a consequence, plaintiff was expelled from the university and a notation was placed on his transcript. Plaintiff alleges that defendant’s sexual-assault investigation procedures violated his civil rights and were improperly motivated by his gender. He brings claims under 42 U.S.C. § 1983 for violation of his procedural and substantive due process rights (Counts I and IX); conspiracy to deprive him of his civil rights under § 1983 and § 1985 (Count VIII); and *2 a void-for-vagueness claim (Count X). He also asserts claims for violation of his rights under Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681 et seq . (Count II, III, and IV). Finally, he brings state common-law claims for breach of contract (Count V); promissory estoppel and reliance (Count VI), unjust enrichment (Count VII) and negligence (Count XI).
I. Background Facts [1] In April 2018, plaintiff John Doe was in his final semester at Washington University. He expected to graduate and then begin law school in August 2018. Amended Complaint ¶¶ 45-46. [Doc. # 52]. Plaintiff and Jane Roe, a freshman, had met each other at parties hosted by a student organization in the autumn of 2017 and December 2017. Id. ¶ 100. They did not socialize outside of these parties, but did occasionally chat through Tinder. Plaintiff Panel Transcript (“Plaintiff Tr.”) at 19 [Doc. # 15-17 at 5].
In early April 2018, Jane contacted plaintiff through Tinder. She said she had broken up with her boyfriend and asked if she could see him. Amended Comp. ¶ 101. They made plans to meet at his apartment on the evening of April 6, 2018, where she arrived at 11:00 p.m. At her request, plaintiff made Jane a drink of gin and orange juice. Id. ¶ 92. Plaintiff later stated that he thought the drink had 3 or 3.5 shots of alcohol in it. [2] Id. ¶ 119. The two spent time sitting on the couch and talking about intimate details of their lives. Id. ¶ 129; Plaintiff Tr. at 47, 88. Jane asked for a second drink after finishing the first. Plaintiff made her a second, weaker drink, which she *3 did not finish. Plaintiff Tr. at 33, 45; Plaintiff Response to Investigative Report (“Plaintiff Resp.”) at 4 [Doc. # 15-8].
At some point, Jane asked if they could move to plaintiff’s bedroom where they had intercourse. Plaintiff Tr. at 45-46, 52-56. Later, Jane asked to go to the bathroom. Plaintiff took her by the hand and showed her to the bathroom. Id. at 64. She said she was feeling a little sick and then vomited on the floor. Id. at 58. Plaintiff cleaned the bathroom floor and walked Jane back to his bed, where she fell asleep while he sat at his computer. Id. at 59-60; 74. Jane woke up about an hour or two later and expressed interest in having intercourse again. Id. at 73-79. During this second sexual encounter, she told plaintiff that she loved him and wanted to move to the same town where he would be attending law school. Id. at 81. They then slept until about 10:00 in the morning. Id. at 83. She left plaintiff’s apartment at about noon on April 7th, saying she had had a good time. Amended Comp. ¶¶ 54, 107. While on the way back to campus in an Uber, Jane texted to a group chat, telling her friends that she had been “super wasted” the night before. She wrote that she was “concerned that I had sex with someone and I don’t remember that much.” In the same text, she noted that it had been “totally consensual and I don’t regret it!” Panel Decision at 5 [3] [Doc. # 15-20].
Jane had a prearranged appointment with her therapist that day. See Investigative Report at 28 [Doc. # 15-6]. Her therapist noted that Jane did not seem particularly coherent. Jane told her therapist that she had had “way too much to drink.” Her therapist told the investigator that she was disturbed by how “out of it” Jane seemed and that she “gets drunk quickly.” Id. *4 On April 8, 2018, Jane contacted plaintiff and suggested they see each other again. They made a plan to meet on April 12th. Amended Comp. ¶ 110. On April 9, 2018, Jane Roe sought medical care at Student Health Services, stating that she had been raped. See Medical Records [Doc. # 15-6 at 25-26]. When plaintiff tried to get in touch with Jane on April 12th, he learned that he had been blocked from his Tinder account and her Facebook page. Amended Comp. ¶ 112.
On April 18, 2018, plaintiff attended a meeting with University administrators to address complaints brought against him by two other students alleging physical and sexual assault. Id. at 57; Suspension Letter [Doc. # 15-5]. Plaintiff was temporarily suspended at that meeting. Suspension Letter. On April 20, 2018, Jane Roe filed a complaint with Washington University’s Title IX Office, alleging that plaintiff sexually assaulted her. Amended Comp. ¶ 55. In her complaint, Jane Roe stated that she went to plaintiff’s apartment, where he gave her an alcoholic drink. She alleged that, after finishing the drink, she next recalled vomiting in plaintiff’s bathroom. The next thing she remembered was “coming to” with “his penis inside of [her].” Roe Complaint [Doc. # 15-4].
Also on April 20, 2018, the Dean of Students confirmed plaintiff’s suspension in writing and informed him that a third complaint — Jane Roe’s — had been filed against him. Suspension Letter. The letter stated, “Your continued presence on campus poses a substantial threat to the ability of other students to continue their normal University functions and activities.” Plaintiff was informed that, “[e]ffective immediately,” he was “no longer permitted on campus.” The suspension would remain in effect until all charges against him were heard and decided. Provisions were made for plaintiff to finish his course work. Plaintiff was informed that he could request a meeting with the Dean to discuss the temporary suspension. Id.
*5 On April 25, 2018, Washington University notified the Title IX Investigator that Jane Roe had reported “an incident of nonconsensual sexual contact.” See Investigative Report. The Investigator interviewed 11 witnesses in addition to Jane Roe and plaintiff. Id. at 1. Plaintiff was accompanied by a private attorney to his interview. Id. at 6. The Investigator also received written statements from Jane Roe and plaintiff, [4] records from Jane Roe’s April 9th medical examination, and text messages provided by five of the witnesses. Id. The Investigative Report was issued on July 11, 2018. Jane Roe and plaintiff each received copies of the report and submitted written responses. Jane Roe Response [Doc. # 15-7]; Plaintiff Response [Doc. # 15-8]. On August 27, 2018, the Investigator issued a supplemental report after speaking with Jane Roe’s therapist. [Doc. # 15-6 at 27-29]. Jane Roe submitted a written response to the supplemental report. [Doc. #15-9]. After learning that Jane had submitted a supplemental response, plaintiff attempted to submit a supplemental response of his own but was told that he had missed the deadline. Amended Comp. ¶ 68. He has not provided the Court with a copy of the supplemental response he attempted to submit.
The Investigator delivered the report and responses to a three-member panel, in accordance with the University’s written policy. See id. ¶ 70; USAIB [University Sexual Assault Investigation Board] Procedures for Complaints of Sexual Assault Filed Against Students, (“USAIB Procedures”) ¶ g [Doc. # 45-1 at 6] (“Following the investigation, the Investigator will provide an initial report to a three member panel . . .”). The panel interviewed plaintiff, Jane Roe, and four other student witnesses in August and September 2018. Amended Comp. ¶ 65; Transcripts [Docs. ## 15-13 through 15-19]. Plaintiff was accompanied by his attorney to his interview. *6 On November 7, 2018, the panel issued a unanimous decision finding that plaintiff had violated a provision of the University Student Conduct Code [5] making it an offense for a student to have sexual contact with a member of the University community without that person’s consent. Panel Decision.
The panel found:
[I]t is more likely than not that the Complainant was incapacitated due to alcohol consumption at the time of sexual intercourse. Therefore, she was unable to consent to sexual activity. Our conclusion is based on the totality of the evidence presented. First, we find the Complainant’s statements credible in this regard. The Complainant notes that she has very little memory of events of most of the evening. She recalls sitting on the couch . . . talking with the Respondent. The next thing she remembers is sitting in the bathroom, throwing up. Then, her next memory is “coming to” in Respondent’s bed, with his penis inside her. She remembers waking up the next day, still feeling disoriented and confused. In sum, the few memories the Complainant has of that night coincide with her vomiting and the Respondent penetrating her, which are physically jarring events. . . . Further, the Complainant’s first texts to friends the next morning indicated that she didn’t “remember that much.” Her comments to friends later that day were similar in nature.
Panel Decision at 8.
The panel found that Roe’s description of events was consistent, beginning with her initial conversations on April 7th through her interview with the panel. First, her “lack of memory combined with her contemporaneous comments to friends lead us to believe it is more likely than not that she was incapacitated during the sexual activity.” Id. The panel also found Roe’s statements were consistent with observations by two other witnesses who saw Roe that morning, one of whom was her therapist. Third, several others made statements that Roe had a low tolerance for alcohol. Finally, they did not believe that Doe’s calculations of how much alcohol he served were “as precise as he suggests.” Id. at 9. “[A] conservative estimate would put the Complainant’s *7 alcohol consumption at approximately three to three-and-a-half shots. And, we believe it was likely more than that amount.”
With respect to whether Roe’s incapacitation would have been apparent to a reasonable observer, the panel found:
It was the consensus amongst the witnesses . . . that it was obvious to an observer when the Complainant was intoxicated. [One witness] shared with the Panel that the Complainant gets significantly intoxicated — “sloppy,” in her words — very quickly, after about two drinks, and her personality shifts dramatically . . . [including] slurred words, becoming overly friendly, or even a depressed-like state, and difficulty remaining upright.
* * *
That the Complainant vomited during the parties’ interaction supports th[e] conclusion [that she was incapacitated]. The Complainant reports that, prior to the evening of April 5, she had never thrown up as a result of drinking too much alcohol. . . . [W]e believe that her vomiting should have been an indicator that the Complainant had become incapacitated — a sign that the Respondent should have recognized. . .
Panel Decision at 9-10.
The panel addressed plaintiff’s contention that he, too, was intoxicated at the time of the second sexual encounter. According to the panel, this suggests, first, that the parties drank more than he reported and, second, that his perception of the events was impaired. “Even if the Respondent did not pick up on other signs of incapacitation, the Panel believes that it is more likely than not that a reasonable (sober) observer should have taken the Complainant’s throwing up and her overall behavior as an indication that she was incapacitated.”
By letter dated November 9, 2019, Lori White, the Vice Chancellor of Student Affairs, informed plaintiff of the panel’s decision. She also informed plaintiff that the sanction was expulsion from the University. Sanction Letter [Doc. # 15-21]. Plaintiff submitted an appeal, *8 which the Provost denied on January 2, 2019. Appeal [Doc. # 15-22]; Denial [Doc. # 15-23]. Plaintiff filed this action on February 22, 2019.
Additional facts will be included in the discussion as necessary to address the parties’ arguments.
II. Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal,
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” and reviews the
complaint to determine whether its allegations show that the pleader is entitled to relief. Id. at
555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true all of the allegations
contained in a complaint does not apply to legal conclusions. Iqbal,
“If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and
not excluded by the court, the motion must be treated as one for summary judgment under Rule
56.” Fed. R. Civ. P. 12(d). “Though ‘matters outside the pleadings’ may not be considered in
deciding a Rule 12 motion to dismiss, documents necessarily embraced by the complaint are not
matters outside the pleading.” Zean v. Fairview Health Servs.,
III. Discussion
A. Constitutional Claims Plaintiff asserts that defendant’s investigation of Jane Roe’s sexual assault complaint violated his constitutional rights protected by the Fourteenth Amendment. First, he alleges that defendant’s policies and procedures for addressing sexual assault complaints violated his procedural and substantive due process rights and, furthermore, are void for vagueness. (Counts I, IX, and X). In the alternative, he alleges that defendant conspired to deprive him of equal protection and due process in violation of § 1983 and § 1985 (Count VIII). Defendant argues that plaintiff’s constitutional claims fail because he cannot establish that the defendant is a state actor.
1.
Challenges to Constitutionality of Defendant’s Procedures
“[T]he Fourteenth Amendment, which prohibits the states from denying federal
constitutional rights and which guarantees due process, applies to acts of the states, not to acts of
private persons or entities.” Rendell-Baker v. Kohn,
Courts have recognized an exception to this rule when “there is such a close nexus between
the State and the challenged action that seemingly private behavior may be fairly treated as that of
the State itself.” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n,
295 (2001) (internal quotation marks omitted). Such a nexus may be found where (1) the *11 “challenged activity. . . results from the State’s exercise of coercive power”; (2) “the State provides significant encouragement, either overt or covert” for the challenged activity; (3) the “private actor operates as a willful participant in joint activity with the State”; (4) a “nominally private entity. . . is controlled by an agency of the State”; (5) the private entity “has been delegated a public function by the State”; and (6) the private entity is “entwined with governmental policies.” Id. at 296 (internal citations omitted). Here, plaintiff argues that Washington University is a state actor because it was performing a public function. [6]
The Supreme Court recently addressed the “public function” doctrine in Manhattan Cmty.
Access Corp. v. Halleck,
Plaintiff argues that the University was performing the traditional and exclusive state
function of investigating and prosecuting an allegation of sexual assault. Courts have found that
private universities “investigating and disciplining employees for university policy violations,”
including for allegations of misconduct under Title IX, are not exercising a public function.
Woytowicz v. George Washington Univ.,
Plaintiff alleges that the Department of Education’s Office of Civil Rights (“OCR”)
required or induced defendant into engaging in law enforcement, making defendant a state actor
for the purposes of his constitutional claims. Amended Complaint ¶¶ 31-32. In 2011, the OCR
*13
issued a “Dear Colleague Letter” (“DCL”) to recipients of federal education funds. The 2011 letter
explained “that the requirements of Title IX pertaining to sexual harassment also cover sexual
violence” and defined sexual violence as “physical sexual acts perpetrated against a person’s will
or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.” Doe
v. Amherst Coll.,
In Doe v. Univ. of Denver, No. 17-CV-01962-PAB-KMT,
An expelled student fared no better in Doe v. Washington & Lee Univ., No. 6:14-CV-
00052,
Plaintiff relies on Scott v. Northwestern Univ. Sch. of Law, No. 98 C 6614, 1999 WL 134059 (N.D. Ill. Mar. 8, 1999), to support his assertion that defendant is a state actor. The plaintiff in Scott brought suit under § 1983 after he was arrested by campus police officers, held at a campus detention center, and then turned over to the municipal police, on suspicion of theft from a campus library. The district court determined that campus police officers at the private university were state actors for the purposes of plaintiff’s constitutional claims. The court noted that a state statute granted university police “the powers of municipal peace officers, . . . including the power to make arrests for violations of state statutes, municipal or county ordinances.” Id. at *4 (quoting 110 Ill. Comp. Stat. Ann. 1020/1). “Because the [university] police are vested with almost identical powers to those of county and municipal police, they exercise functions that are traditionally the exclusive prerogative of the state.” Id. at *5. On university property, “a member of Northwestern’s police force is every bit the law enforcement officer as is a member of the Chicago Police Department when one walks off the University’s downtown property and onto a public thoroughfare.” Id. The court stated that, “by accepting [the State’s] authorization, Northwestern and its police must also accept the grave responsibility to protect an individual’s constitutional rights, the same responsibility that § 1983 enforces against municipal and other police forces.” Here, plaintiff was not arrested or even investigated by campus law enforcement *15 personnel. Furthermore, the federal and state governments have not empowered Washington University to make arrests, detain, or criminally charge students accused of violating their conduct codes. Thus, the holding in Scott is inapplicable to this case.
Plaintiff alleges that state actors “could have ordered” defendant to “stop investigating or prosecuting plaintiff for alleged criminal conduct that is within their exclusive jurisdictions.” Amended Complaint ¶ 38. In opposition to defendant’s motion, plaintiff argues, without citation to case law, that defendant was performing a state function when it investigated him because “police and prosecutors decide[d] to let [defendant] exclusively handle the investigation and prosecution of a sexual assault allegation.” Memorandum at 8 [Doc. # 57]. Plaintiff’s allegation and argument miss the mark, however, because defendant investigated and sanctioned plaintiff for violation of the student code of conduct, not for any criminal offense. Furthermore, there is no suggestion that defendant’s investigation precluded or interfered with any criminal investigation in any manner.
Plaintiff also alleges that state legislators “failed to provide students at private colleges with any protections against the unlawful deprivation of liberty and property without due process of law.” Thus, he alleges Missouri “is providing significant encouragement” to defendant “to continue to employ its biased USAIB procedures.” Amended Complaint ¶ 34. Further, he alleges, defendant “led the charge” to defeat proposed legislation designed to protect male students from expulsion without due process. Id. ¶ 35. In his opposition, he argues that these allegations show that defendant was “encouraged, either overtly or covertly” to prosecute plaintiff using biased procedures “by police, prosecutors and/or politicians.” Memorandum at 6. Even assuming that plaintiff’s conclusory allegations were supported with specific facts, they are not sufficient to *16 allege that defendant was vested with the powers of criminal investigation and prosecution such that it is a state actor for the purposes of plaintiff’s claims.
In Doe v. Case Western Reserve Univ., No. 1:17 CV 414,
Defendant’s motion to dismiss will be granted with respect to Counts I, IX, and X. *17 2. Conspiracy Claim
Plaintiff alternatively claims in Count VIII that Washington University is liable under 42
U.S.C. § 1985(3) because it engaged in a conspiracy to deprive him and other men of their civil
rights in order to gain a competitive advantage among potential female students. The Supreme
Court has recognized that § 1985(3) creates a cause of action against “private conspiracies.” See
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993). In order to prove a private
conspiracy under § 1985(3), a plaintiff must show,
inter alia,
(1) that “some racial, or perhaps
otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’ action,”
and (2) that the conspiracy “aimed at interfering with rights” that are “protected against private, as
well as official, encroachment.” Id. at 267-68 (quoting Griffin v. Breckenridge,
In support of his claim, plaintiff alleges that, in a study of “the relative fairness” of university disciplinary processes and procedures, defendant received the lowest score of the top 50 universities in the United States. Amended Comp. ¶ 363. He also cites the Department of Education’s September 2017 “Dear Colleague letter,” in which the department withdrew the 2011 DCL. [Doc. # 45-13]. The 2017 DCL asserted that the procedures adopted under the prior guidance “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” Id. at 1; Amended Comp. ¶ 365. Plaintiff alleges that defendant maintained its biased procedures for investigating sexual assault in order to convict more accused men, avoid negative publicity, ease current students’ safety concerns, and tell the public that defendant was serious about protecting female students from sexual assaults on campus. In addition, he alleges, defendant hoped to gain a competitive advantage over other schools that changed their Title IX procedures to protect men’s civil rights. Id. ¶¶ 366-73. These allegations are not sufficient to establish that “the state was somehow involved in or affected by the conspiracy.”
In his opposition to defendant’s motion to dismiss, plaintiff argues that he has alleged
sufficient facts to support a conclusion that “there is an ongoing understanding and covert
conspiracy between defendant and local police and/or prosecutors whereby they encouraged
defendant to brand plaintiff a sexual assailant.” Memorandum at 6-7. This argument is
unsupported by any factual allegations in the amended complaint. At oral argument, plaintiff
admitted that he was depending on discovery to uncover the facts necessary to support this
allegation. A plaintiff confronting a motion to dismiss cannot rely on as-yet undiscovered facts to
defeat the motion. See Iqbal,
Defendant’s motion to dismiss will be granted with respect to Count VIII.
B.
Title IX Claims
Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). “As
a general rule, Title IX is not an invitation for courts to second-guess disciplinary decisions of
colleges or universities.” Doe v. Univ. of St. Thomas,
Courts have recognized at least four theories of Title IX liability in cases alleging gender
bias in university disciplinary proceedings: (1) erroneous outcome, (2) selective enforcement, (3)
deliberate indifference, and (4) archaic assumptions. Doe v. Miami Univ.,
1. Additional Facts
The following additional facts are relevant to plaintiff’s Title IX claims.
On April 9th or 10th, a mutual friend put Jane Roe in touch with a female senior, “AA,” who knew plaintiff. Roe Tr. at 70. On April 11, 2018, AA filed a complaint with the university alleging that plaintiff physically assaulted her in February and September 2017. Amended Comp. *20 ¶ 240. On April 16, 2018, a second woman identified as “Jane Roe #2” filed a complaint against plaintiff alleging that he had assaulted her while they were dating. Id. at 241. AA and Jane Roe #2 had been roommates during their freshman year. [7] Id. AA Panel Interview at 12-13 [Doc. # 15- 19 at 3-4].
On April 16, 2018, the student newspaper published an anonymous op-ed written by AA entitled “Not a threat.” [Doc. # 45-27]. AA stated that she was aware of a male student (whom she did not identify) who had physically assaulted her and “sexually assaulted and/or raped multiple women.” She also stated that she had given a statement about this student to the Washington University Police Department in early February 2018 and, further, the university was aware at that time of multiple assaults committed by this student. The police department took the male student for a mental health evaluation and determined that he was not a threat to himself or others. Subsequently, AA learned that this man had sexually assaulted a female student in early April. She concluded, “There are so many offices that have done nothing to prevent a serial offender from continuing to hurt people,” including Student Health Services, the university police department, the Title IX office, and the Student Conduct council. Id. It is undisputed that plaintiff was the subject of AA’s article.
On April 17, 2018, the newspaper published an op-ed written by Lori White, Vice Chancellor of Students, in response to AA’s op-ed the previous day. [Doc. # 45-28]. Ms. White’s piece, entitled, “My heart sank . . . because I understand,” revealed that she had been “the victim of horribly painful sexual misconduct” as a graduate student. She stated, “This personal experience most certainly fuels my commitment to continuing to strengthen our Title IX policies and processes.” The university needed to respond to every formal complaint it received, provide *21 support services to anyone impacted by an assault, and evaluate and respond to potential threats. She continued, “I am proud of the courage of our student [AA] to come forward. We have to support this student and every other student who needs our help.” “At the same time,” Ms. White wrote, “we bear a heavy responsibility in investigating allegations of physical and/or sexual assault. We know it might sound bureaucratic and insensitive to say that we are committed to adhering to process and being thorough and fair to everyone involved in these cases, but it is extremely important.” She noted that the university’s response “depend[ed] in large part on’ whether a student decides to make a formal charge.” Finally, she announced that the university was working on strengthening its Title IX practices by adding staff and resources and streamlining the investigation process. Plaintiff alleges that this op-ed shows that Ms. White “clearly sympathize[d] with plaintiff’s accusers and state[d] her intention to place the female accusers’ interests above those of male students accused of sexual assault.” Id. ¶ 246.
As noted above, plaintiff met with university administrators on April 18, 2018, in response to complaints brought by AA and “Jane Roe #2.” He was informed at that time that he was temporarily suspended from campus. On April 20th, Jane Roe filed the complaint in this case. Later that day, plaintiff was notified of the new complaint and formally notified of the terms of his suspension. [Doc. # 15-5].
Two events occurred on April 26, 2018. First, the student newspaper published an anonymous op-ed written by Jane Roe, entitled “Three weeks later.” [Doc. # 45-29]. She stated that she had been raped three weeks earlier by the man who was the subject of the “Not a threat” op-ed. She stated that her rape was the direct consequence of the university’s failure to protect its students. She described her encounter with plaintiff in some detail, stating that she remembered “being so drunk that [she] was too weak to support [her] own body weight.” She barely *22 remembered vomiting before she blacked out. She wrote that she came to “from her blackout with him inside” her. She did not tell him to stop but pretended to enjoy herself because she “was drunk and confused [and] wanted it to be consensual.” She asserted, however, that she was too incapacitated to consent. The next day, she felt weird and shaky and experienced “sharp, intense pain” in her vagina, labia, pelvis, and pubic bone. She concluded by stating, “the University’s inaction and failure to respond to previous reports about this individual make them complicit in my rape. I want my anguish and anger to translate into action and justice. . . . Let the administration know that this is unacceptable. The Title IX process and safety systems on campus must be reformed. Together, our voices cannot be ignored.” Id. (emphasis in original). Also on April 26, 2018, a protest was held on campus to criticize the university’s handling of sexual assault claims. Plaintiff alleges that the protest was “incited by his accusers and intended to prejudice [his] right to a fair trial.” Amended Comp. ¶ 238. Plaintiff submits (under seal) a photograph of a woman holding a sign that reads, “Expel my rapist.” [Doc. # 15-26]. Plaintiff asserts that the woman is Jane Roe. Id. ¶¶ 237, 249.
On April 27, 2018, university Chancellor Mark Wrighton appointed Lori White to lead a working group to improve the university’s response to sexual assault and misconduct. See “Improving Washington University’s Response to Sexual Assault & Misconduct: A Call to Action.” [Doc. # 45-30]. And, during the summer of 2018, Lori White met with the leaders of the protest to discuss improving the university’s response to victims of sexual assault. Amended Comp. ¶ 262. Plaintiff alleges that the new procedures adopted by the university “were in stark contrast” with changes outlined by the Department of Education in 2017. Id. ¶ 263. Long after the panel’s decision in this case, on January 30, 2019, Lori White wrote defendant’s response to the Department of Education’s proposed regulations for implementing *23 Title IX. Letter [Doc. # 45-34]. White expressed the university’s view that “certain of the proposed changes will be helpful” in addressing sexual assault. Other proposed regulations, however, might “reverse the significant progress” the university had made “in designing a model that is thorough, fair to both parties, and trauma informed.” In particular, White cited the proposal to appoint party-aligned advisors to conduct cross examination. She noted that the university previously employed such a model and found that hearings were extremely litigious. She expressed concern that returning to party-aligned advisors might deter students from reporting sexual assault which would preclude any determination of the truth. She also stated that the university would continue to employ a preponderance of the evidence standard in its Title IX proceedings.
2.
Plaintiff’s Hostile Environment Claim — Count II
In order assert a Title IX hostile-environment claim, plaintiff must allege that his
educational experience was “permeated with discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive [so as] to alter the conditions” of his educational environment.
Miami Univ.,
Plaintiff cites the student op-eds and protest to support his hostile-environment claim. He
alleges that defendant “permitted female students to interfere with plaintiff’s rights when it
permitted his accusers to protest on campus, during which Jane screamed ‘expel my rapist,’ and
other females called for the jobs of several Washington University administrators if they did not
convict plaintiff.” Amended Comp. ¶ 237. He also alleges that Jane Roe was “permitted” to pose
for photographs while holding a poster that said “Expel my rapist.” Id. ¶ 249. He argues that the
student op-eds created a hostile environment and that “everyone” knew that AA was the author of
the April 16th op-ed, which made plaintiff look “like the devil” and was an “inflammatory call for
action.” Id. ¶ 243-44. The op-eds, which were posted on a university website, were never redacted
or removed. Id. ¶ 257. He alleges that the environment leading up to the panel’s decision in his
case was “clearly” hostile and “a male student’s chances at a fair Title IX decision was slim to
none, as was his chance to be treated the same as his female accusers.”
[8]
Id. ¶ 266.
*25
The actions of other students are not sufficient to support plaintiff’s hostile-environment
claim. In Nungesser v. Columbia University,
Plaintiff also relies on Lori White’s actions to support his hostile-environment claim. She wrote an op-ed, met with protestors, and spearheaded a plan to strengthen responses to sexual assault. Plaintiff alleges that Lori White’s op-ed showed that “she favored female accusers and believed [AA]’s inflammatory op-ed” and thus should have recused herself from deciding the sanction that plaintiff received. Amended Comp. ¶ 264. Arguably, such an allegation of bias by a decision maker could provide a basis for establishing institutional liability, at least with respect created an environment that intimidated the panel. Amended Comp. at ¶ 238 (the protest was intended to prejudice plaintiff’s right to a fair trial); ¶ 261 (the op-eds were intended to create a hostile environment in which plaintiff could not receive an impartial decision); ¶ 266 (the hostile environment meant that “a male student’s chances at a fair Title IX decision [were] slim to none”). The Court is doubtful that a hostile-environment claim can proceed under such a theory.
to the sanction imposed, if not the underlying finding by the panel that plaintiff was culpable. The
Court has carefully reviewed White’s op-ed, however, and does not find that it evinces either
gender bias generally or an endorsement of AA’s op-ed in particular. Rather, White acknowledged
that AA might be feeling let down and expressed her commitment “to strengthen our Title IX
policies and processes,” and to “work as hard as [she] can to make sure” that the university’s
approach to Title IX cases is “thorough and fair.” She also stated that she was “proud of the
courage of our student to come forward” and that the university had “to support this student and
every other student who needs our help.”
[9]
Contrary to plaintiff’s arguments here, expressing
concern or support for the victims of sexual assault is not evidence of gender bias. See Doe v.
Loh, No. CV PX-16-3314,
*27 Defendant’s motion to dismiss plaintiff’s hostile environment claim asserted in Count II will be granted.
3.
Plaintiff’s Deliberate Indifference Claim — Count III
[10]
The Title IX deliberate indifference standard applies “where a plaintiff seeks to hold an
institution liable for sexual harassment and requires the plaintiff to demonstrate that an official of
the institution who had authority to institute corrective measures had actual notice of, and was
deliberately indifferent to, the misconduct.” Trustees of the Univ. of Pa.,
Plaintiff’s deliberate indifference claim faces significant hurdles. “It is undecided whether
[the deliberate-indifference] theory reaches disciplinary proceedings.” Doe v. Univ. of Scis., No.
CV 19-358,
Plaintiff’s claim here demonstrates the poor fit between the deliberate-indifference theory and disciplinary proceedings. He does not allege that he was subjected to sexual harassment and that the defendant ignored it. Rather, he claims that defendant was deliberately indifferent to his due process rights. He alleges in his amended complaint that the Department of Education placed defendant on notice that its policies failed to satisfy due process when it rescinded its 2011 Dear Colleague letter. Nonetheless, the university applied the flawed policies to Jane Roe’s complaint against him. Amended Comp. ¶¶ 270-75. A university’s failure to amend its Title IX policies *29 does not constitute “severe, pervasive, and objectively offensive” conduct. See Miami Univ., 882 F.3d at 590 (rejecting argument that allegations of gender bias in university’s sexual-assault disciplinary process suffice to constitute a viable hostile-environment claim).
Plaintiff’s deliberate indifference claim asserted in Count III will be dismissed.
4.
Plaintiff’s Selective Enforcement Claim — Count III
A selective enforcement claim under Title IX “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.” Doe v. Columbia Coll. Chicago,
Plaintiff’s claim here is based on allegations that: (1) only men are prosecuted under the university’s sexual assault procedures, Amended Comp. ¶ 276; (2) the university does not investigate claims of gender discrimination by women, id. ¶ 278; (3) plaintiff provided evidence that he was the victim of female students conspiring to ruin him, id. ¶¶ 280, 290; (4) he told the university that AA “hatched” a conspiracy against him and cited her prior acts but the university did not investigate her, id. ¶¶ 285-88; (5) the university had evidence that AA incited a riot but did not investigate her, id. at 289; and (6) he told mandatory reporters at the university that AA had him physically assaulted but they did not investigate her, id. at 292-94.
Defendant argues that plaintiff cannot state a claim of selective enforcement because no
charge was ever filed against AA and thus she is not similarly situated. [Doc. # 55-1 at 17].
Plaintiff argues that he was not required to file a charge against AA in order to make out his claims.
[Doc. # 57 at 21-22], citing Doe v. Miami Univ.,
Plaintiff has not identified a female student against whom a charge of sexual misconduct was filed who was not investigated and subjected to discipline. Thus, he has not sufficiently pleaded a claim for selective enforcement.
5.
Plaintiff’s Erroneous Outcome Claim — Count IV
A plaintiff may assert a claim under Title IX based upon an erroneous outcome theory, in
which “the plaintiff attacks the university disciplinary proceeding on grounds of gender bias by
arguing that the plaintiff was innocent and wrongly found to have committed an offense.” Salau
v. Denton,
Plaintiff’s ability to plead facts supporting a plausible inference of articulable doubt is complicated by his admission that he made Jane a drink containing at least 4.5 to 5.25 ounces of alcohol. Plaintiff Panel Interview at 35 [Doc. # 15-17] (testifying that he “estimate[d] that she had somewhere between, like, two to, like, three and a half shots probably.”); Amended Comp. ¶ 119 (referencing the “3 or 3.5 shots that John believed he poured”); id. ¶ 122 (defining a shot as 1.5 ounces of alcohol). That admission, coupled with evidence that Jane had poor tolerance for alcohol, more than adequately supports the panel’s finding that Jane was incapacitated. As for the panel’s finding that plaintiff should have been aware that Jane was incapacitated, it is undisputed that plaintiff had intercourse with Jane after she stated that she did not feel well and then vomited. Plaintiff argues that she could have vomited for reasons having nothing to do with the drink he gave her. Opposition at 15 (arguing that the panel “conveniently omit[ted] evidence . . . that her consumption of controlled medication or failure to eat anything may have been contributing factors to her throwing up one time”). He acknowledges, however, that he did not know that she was taking medication or had not eaten or, indeed, much else about what factors beside the alcohol could have caused her to vomit. The relevant question is whether, knowing two indisputable facts *34 — Jane drank at least 4.5 ounces of alcohol and Jane vomited — plaintiff had enough information from which he should have known that she was too incapacitated to give consent to their subsequent sexual contact. The panel answered that question in the affirmative.
Plaintiff argues that, because Jane claimed not to remember much of the evening, the panel was required to believe his version of the events. Opposition at 15; Amended Comp. ¶ 4 (Jane “did not remember any facts that contradicted the almost photographic description John gave to the University regarding the occurrence with Jane.”). In particular, he argues, the panel should have believed that Jane “verbally and physically initiated” their sexual encounters; he received consent for every sexual act; Jane directed him of what she wanted throughout the encounter; she was always conscious and verbal; and she did not slur her words. Opposition at 14. “However, credibility determinations are fully within the purview of a university discipline hearing panel conducting a de novo review.” Doe v. Univ. of Arkansas-Fayetteville, No. 5:18-CV-05182, 2019
WL 1493701, at *11 (W.D. Ark. Apr. 3, 2019) (quoting Doe v. Coll. of Wooster, 243 F. Supp. 3d 875, 894 (N.D. Ohio 2017)). Plaintiff also complains that the panel ignored or excluded “all evidence that failed to conform to gender based assumptions about male and female roles in heterosexual relationships.” Opposition at 12. Plaintiff does not clarify what evidence the panel rejected. In the amended complaint, plaintiff does complain that the panel failed to call a witness who would have testified that AA asked him to beat plaintiff up. Amended Comp. ¶ 81 (witness “BB” gave the Investigator a text message he received from AA asking him to beat plaintiff up). This “excluded” evidence does not cast doubt on the outcome here, however, because the text messages were provided to the panel. See Investigative Report at 22. More significantly, any evidence witness BB could have provided has no bearing on the interactions between plaintiff and Jane Roe.
Even if plaintiff properly alleged the first element of his erroneous outcome claim, he has
not alleged specific facts to show that gender bias was a motivating factor in the panel’s decision.
A plaintiff may illustrate gender bias by identifying “statements by members of the disciplinary
tribunal, statements by pertinent university officials, or patterns of decision-making that also tend
to show the influence of gender.” Yusuf,
Plaintiff makes a number of arguments that rest on his assumption that only men are charged with sexual assault. So, for instance, he argues that the university’s sexual assault procedures are gender-biased because they do not afford the same protections to students facing discipline under the student conduct code. But, each set of procedures expressly applies to students who commit the covered offenses regardless of the student’s gender. [13] Plaintiff also argues that “only men get accused of having sex with someone who is incapacitated by means of voluntary intoxication.” This general, conclusory assertion does not support a finding of gender bias by the decisionmakers in this case. See Univ. of St. Thomas, 240 F. Supp 3d at 991 (“[N]umerous courts have held a court ‘cannot plausibly infer . . . a higher rate of sexual assaults committed by men against women, or filed by women against men, indicates discriminatory treatment of males accused of sexual assault.’”) (citations omitted); Salau, 139 F. Supp 3d at 999 (“Plaintiff’s *36 allegation that the “male respondents in sexual misconduct cases at [the University] are discriminated against based solely on their sex” does not establish a pattern of decisionmaking that tends to show gender bias, because Plaintiff only points to one case—his own.”).
Plaintiff also argues that the panel members were “pressured” to find him liable for sexual
misconduct in order to avoid negative publicity for the defendant. Opposition at 19. “[W]hen
courts consider allegations of external pressure, they look to see if a plaintiff has alleged facts
demonstrating that it was pressure[d] not only to ‘aggressively pursue sexual assault cases, but to
do so in a manner biased against males.’” Z.J. v. Vanderbilt Univ.,
Plaintiff cites Doe v. Columbia Univ.,
The allegations of public pressure in Columbia Univ., on which the Second Circuit relied to find minimally plausible allegations of gender bias, were more extreme than those alleged here. The New York Post published an article quoting female students complaining that Columbia “dropped the ball” on “jock-rapist probe.” Id. at 50. Twenty-three female students filed Title IX complaints with the DOE. Id. at 51. The student newspaper criticized the Title IX investigator by name for conducting “inadequate investigations.” Id. The membership director for a student organization spearheaded a petition to request statistics on sanctions issued in Title IX assault cases. Id. That membership director also accompanied the complainant to the Title IX panel hearing, even though she had no prior connection to the complainant. Id. at 52. The three op-eds and campus protest that occurred here do not create the same inference of public pressure sufficient to allege that the panel in this case was influenced by gender bias.
The Court concludes that the other cases relied on by plaintiff are similarly distinguishable.
See Norris v. Univ. of Colorado, Boulder,
Plaintiff has failed to sufficiently allege either that there is an “articulable doubt” as to the accuracy of the outcome of the disciplinary proceeding at issue here or that gender bias was a motivating factor in the erroneous outcome. Defendant’s motion to dismiss Count IV will be granted.
* * * * *
In summary, the Court finds that plaintiff’s claims that defendant violated his civil rights, as asserted in Counts I, VIII, IX, and X, fail because defendant is not a state actor. His claims that defendant violated Title IX, as asserted in Counts II, III, and IV, fail because plaintiff cannot establish that disciplinary process and decision were the product of improper gender bias. The Court declines to exercise supplemental jurisdiction over plaintiff’s state law claims asserted in Counts V, VI, VII, and XI, which will be dismissed without prejudice.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion to dismiss plaintiff’s amended complaint [Doc. # 54] is granted .
IT IS FURTHER ORDERED that plaintiff’s claims in Counts I through IV and VIII through X are dismissed with prejudice for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6).
IT IS FURTHER ORDERED that plaintiff’s claims in Counts V through VII and XI are dismissed without prejudice.
An order of dismissal will be separately entered.
/s/ John M. Bodenhausen JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE Dated this 21st day of January, 2020.
Notes
[1] The Court relies on allegations in plaintiff’s amended complaint and information in the documents attached to the
complaint. See Zean v. Fairview Health Servs.,
[2] Plaintiff acknowledges that he told Jane Roe the following day that he had given her seven shots of alcohol. Washington University Sexual Assault Investigation Board Panel Decision (“Panel Decision”) [Doc. # 165-20 at 2]. He told the panel that he exaggerated so that she would not “get down on herself” for vomiting. Plaintiff Panel Interview at 35-37.
[3] The Title IX Investigator received copies of text messages from several witnesses which were attached to the Investigative Report as appendices. See Investigative Report at 1 [Doc. # 15-6]; Amended Comp. ¶ 108. Plaintiff has provided the Court with the report but did not include the text messages.
[4] According to the Investigative Report, plaintiff’s written statement addressed all three complaints pending against him, which he stated were “rooted in his relationship with one of the parties, [AA].” Id. Although plaintiff’s written statement was included in the Appendix to the Investigative Report, id. at 1, it has not been provided to the Court.
[5] Student Conduct Code III.A.5 (proscribing nonconsensual sexual contact and stating that “[a]n individual who is incapacitated is unable to give consent.”) [Doc. # 45-2 at 6].
[6] Plaintiff appears to have abandoned an argument asserted in his amended complaint and addressed by defendant in
its motion to dismiss. In particular, plaintiff alleged that defendant’s receipt of state and federal money makes it a
state actor. Amended Comp. ¶¶ 26, 33. It is well established, however, that a private actor’s receipt of public funding
alone does not transform it into a state actor. Rendell-Baker v. Kohn,
[7] It is plaintiff’s theory that the charges against him were orchestrated by AA because he got into his first choice of law schools while she did not get accepted into any of her top law school choices. Amended Comp. at n.22.
[8] Significantly, plaintiff does not allege that he was ever identified as the subject of the op-eds and protest. Indeed, plaintiff does not allege that he was ever intimidated by the op-eds or protests. Rather, he alleges that these activities
[9] Plaintiff also cites the Twitter feed of a panel member from late January through February 2017 likening unpleasant experiences to people who voted for President Trump. Amended Comp. ¶ 266 n.21; Twitter printout [Doc. # 15-36]. Plaintiff does not explain how the exhibit supports an inference of gender bias.
[10] In Count III, plaintiff asserts both a deliberate indifference claim and a selective enforcement claim. The Court addresses them separately.
[11] AA’s alleged conduct does not support a deliberate indifference claim because plaintiff does not allege that her actions toward him were motivated by his gender but anger that he was accepted into his top choice for law school while she was not.
[12] The Court questions the wisdom of a pleading strategy that leaves it to the reader to comb through an 88-page complaint to find the factual allegations required to support a particular claim for relief, particularly in this case, where the amended complaint was filed in response to a motion to dismiss the original complaint raising the same argument plaintiff faces here.
[13] Plaintiff also argues that defendant’s refusal to adopt the changes proposed by the DOE in its 2017 DCL shows gender-bias. Opposition at 12. This wholly conclusory argument is again unsupported by any analysis.
[14] Plaintiff lists several other cases in a string cite without providing any analysis of their application to this case. Opposition at 18. One of the citations is to an unpublished order that the Court was not able to access. Doe v. Rhodes