MALCOLM X. SHEPPARD, Plaintiff - Appellant, v. THE VISITORS OF VIRGINIA STATE UNIVERSITY; HENRY DEBOSE, individually, Defendants - Appellees, and LETIZIA GAMBRELL-BOONE, individually and in her official capacity; JULIA A. WALKER, Defendants.
No. 19-2452
UNITED STATES COURT OF
April 2, 2021
PUBLISHED. Argued: January 28, 2021. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:18-cv-00723-HEH)
Before AGEE, THACKER, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Agee and Judge Thacker joined.
ARGUED: Scott G. Crowley, CROWLEY & CROWLEY, Glen Allen, Virginia, for Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Mark R. Herring, Attorney General, Samuel T. Towell, Deputy Attorney General, Ronald N. Regnery, Senior Assistant Attorney General, Sandra S. Gregor, Assistant Attorney General, Toby J. Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitor General, Jessica Merry Samuels, Assistant Attorney General, Zachary R. Glubiak, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; Ramona L. Taylor, University Legal Counsel, VIRGINIA STATE UNIVERSITY, Petersburg, Virginia, for Appellees.
QUATTLEBAUM, Circuit Judge:
Malcolm X. Sheppard appeals the district court‘s dismissal of both his Title IX claim against the Visitors of Virginia State University and his Fourteenth Amendment claims against Henry Debose, a university administrator. For the reasons that follow, we affirm.
I.
Sheppard‘s claims arise from an altercation with a former girlfriend in a Virginia State University (“VSU“) dormitory.1 From 2014 to 2016, Sheppard was enrolled as a student at VSU. On October 25, 2016, he discovered personal items were missing from his dorm room. Sheppard then learned from his roommate that Sheppard‘s former girlfriend, Student A, who was also a student, and her female friend, Student B, had been in his room. Sheppard first sought help from two dorm resident assistants to retrieve his personal items. After they were unwilling or unable to help, Sheppard decided to retrieve the items himself. According to Sheppard‘s Amended Complaint:
Sheppard confronted Student A; he went to grab the dorm room keys from her and inadvertently pushed Student A while in the hallway outside of her dorm
room. Student A filed an Incident Report with VSU‘s Department of Police and Public Safety . . . stating that Sheppard “pushed her several times while in front of [her dorm] . . . room and again in a nearby stairwell.”
J.A. 31.
Student B submitted a written statement to VSU‘s Department of Police and Public Safety acknowledging her involvement in taking items from Sheppard‘s dorm room and corroborating Student A‘s account of Sheppard‘s “pushing and grabbing.” J.A. 31. The Department referred all three students to VSU‘s Office of Judicial Affairs (“OJA“). Sheppard was referred for assault, and Students A and B were referred for larceny. The day after the incident, OJA issued Sheppard a “Pre-Hearing Notice” of the charges against him and required he remain off campus pending their resolution. At that time, Sheppard, with permission to continue his courses online for the time being, went home.
OJA held a hearing on October 31, 2016, six days after the incident, which Sheppard attended. At that hearing, OJA found Sheppard to have violated Sections 8.01 (physical abuse, threats, intimidation or harassment) and 8.02 (violence on university property) of the VSU Student Code of Conduct. OJA imposed sanctions, including “100 hours of community service, anger management sessions, relationship violence education, and probation,” but did not suspend Sheppard or preclude him from completing his coursework. J.A. 32. Sheppard appealed to Debose, the Director of OJA, seeking modifications to certain sanction requirements. Sheppard alleges he received no response and OJA never heard his appeal.
Meanwhile, sometime around the date of the incident, Student A had obtained a protective order in the Chesterfield County General District Court. The Order prohibited Sheppard from entering VSU‘s campus or being within 100 feet of Student A. Sheppard claims he never received notice of a hearing or a copy of the Order. On November 9, 2016, with Sheppard still in the dark, the Chesterfield County General District Court extended the Order through January 2017.
Based on the Order, VSU emailed Sheppard‘s professors asking them to permit him to complete the remainder of the term online. One professor denied this request. On November 29, 2016, Debose wrote Sheppard, notifying him that his suspension from VSU would remain in effect and that he was deemed to be withdrawn from his courses. According to Sheppard, this was the first time he was told he was suspended.
As to the charges against Students A and B, on December 17, 2016, OJA contacted them regarding their alleged violations. Student B received “Pre-Hearing Notice” on January 11, 2017, with a hearing date set approximately one week later. Following initial postponement of the hearing at Student B‘s request, OJA found Student B not responsible for theft. OJA held Student A‘s hearing on April 7, 2017, finding her responsible for theft and imposing sanctions.
Sheppard filed a complaint with the Department of Education‘s Office of Civil Rights (“OCR“) in January 2017, alleging that VSU treated him differently than Students A and B on the basis of sex due to the time delay in OJA proceedings against Students A and B in comparison to Sheppard.2 According to Sheppard, OCR‘s preliminary investigation found that he had
After Sheppard sued VSU, the district court dismissed his first complaint without prejudice under
Sheppard timely appealed, and we have jurisdiction to hear his appeal under
II.
We review dismissals under
A.
We first consider Sheppard‘s Title IX and equal protection claims. Finding they fail for largely the same reasons, we affirm the district court‘s dismissal of both.
1.
Title IX prohibits federally-supported educational institutions from practicing discrimination on the basis of sex.
Looking to how our sister circuits have addressed this issue, courts are split. The first approach, articulated by the Second Circuit, in Yusuf v. Vassar College, 35 F.3d 709, 715 (2d Cir. 1994), provides that “[p]laintiffs attacking a university disciplinary proceeding on grounds of gender bias can be expected to fall generally within two categories,” erroneous outcome and selective enforcement. Yusuf then announced the requirements for establishing either claim.6 See id. The First and Fifth Circuits have followed Yusuf‘s approach. See Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 73-74 (1st Cir. 2019) (holding to succeed on a selective enforcement theory, plaintiff must show that “the severity of the penalty and/or the decision to initiate the proceeding was affected by the student‘s gender.” (quoting Yusuf, 35 F.3d at 715)); Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204, 210 (5th Cir. 2019) (recognizing Yusuf‘s two-theory framework).
The Seventh Circuit, however, has rejected Yusuf as an all-inclusive doctrinal framework for student disciplinary proceedings. Doe v. Purdue Univ., 928 F.3d 652, 667 (7th Cir. 2019) (holding Yusuf‘s categories merely describe ways a party could allege discrimination on the basis of sex). Instead, Purdue articulated an approach that more closely tracks the text of Title IX, asking merely “do the alleged facts, if true, raise a plausible inference that the university discriminated against [the student] on the basis of sex?” Id. at 667-68 (internal quotation marks omitted). Many circuits have agreed with that approach. See Doe v. Univ. of Sciences, 961 F.3d 203, 209 (3d Cir. 2020) (“[T]o state a claim under Title IX, the alleged facts, if true, must support a plausible inference that a federally-funded college or university discriminated against a person on the basis of sex. Although parties are free to characterize their claims however they
We agree with the Seventh‘s Circuit‘s approach and see no need to deviate from the text of Title IX. In adopting this approach, however, we find no inherent problems with the erroneous outcome and selective enforcement theories identified in Yusuf. In fact, either theory, with sufficient facts, may suffice to state a plausible claim. We merely emphasize that the text of Title IX prohibits all discrimination on the basis of sex. See
We also clarify that inherent in this approach is a requirement that a Title IX plaintiff adequately plead causation—that is, a causal link between the student‘s sex and the university‘s challenged disciplinary proceeding. Not just any causal link will suffice because, again, the text of Title IX controls. Title IX prohibits discrimination by federally-supported educational institutions “on the basis of sex.”
Having determined what Sheppard must plausibly allege, our next task is to determine whether he has adequately done so. Sheppard alleges “VSU discriminated against [him] by selectively enforcing the Student Code of Conduct against him, by taking swift and aggressive administrative action against him while taking essentially no action against female students charged in the same incident until compelled to do so by Sheppard‘s complaint to [OCR] . . . .” J.A. 37. According to Sheppard, the facts as pled give rise to a plausible inference of sex discrimination because, although his situation was similar in all respects to Student A‘s, OJA moved against him more quickly than Students A and B and OJA only proceeded against Students A and B in response to Sheppard‘s OCR Complaint.
We disagree. First, Sheppard pled no facts to support his conclusory allegation that he was similarly situated to Student A. Sheppard emphasizes what he describes as the generally-shared facts surrounding the altercation, including the same broad time frame, the same students involved and the same Code of Conduct invoked. But even taking Sheppard‘s allegations as true, Sheppard and Student A were not in similar positions. Student A was charged with larceny, an event temporally and elementally distinct from Sheppard‘s assault charge. Additionally, Sheppard, unlike Student A, was subject to a protective order issued by Chesterfield County General District Court.
Next, the time difference in OJA‘s proceedings against Sheppard compared to Student A that Sheppard alleges here does not give rise to an inference of discrimination on the basis of sex. There is nothing unusual, much less unreasonable, about proceeding against one party first. In fact, even in a joint disciplinary proceeding with two identically situated students, one party would still have to go first. Further, Sheppard alleged no facts that plausibly show or infer that Sheppard‘s sex had anything to do with OJA‘s order or timing of proceedings.
At oral argument, Sheppard also likened the situation to two teams playing basketball and the referees only making calls against one team. But his factual allegations belie this analogy. Sheppard‘s Amended Complaint acknowledges that, by December 2016, all three students had received some notice of their pending OJA proceedings as a result of the altercation and that, by April 2017, OJA had fulfilled its obligation to all parties—finding Sheppard responsible for assault, Student A responsible for larceny and Student B not responsible for larceny. Even by Sheppard‘s own allegations, OJA called fouls—metaphorically—on both Sheppard and Student A.
Sheppard‘s final argument relates to his OCR complaint. He insists OJA only conducted hearings for Students A and B because he complained to OCR. Once again, however, his own allegations suggest the opposite is true. Prior to Sheppard‘s OCR Complaint, OJA not only gave Students A and B some form of notice but also scheduled Student B‘s proceedings. Although OJA later rescheduled Student B‘s proceedings, Sheppard points to no
In sum, even construing Sheppard‘s Amended Complaint as true, as we must, Sheppard has failed to plead facts sufficient to give rise to a plausible inference of discrimination that was caused by his sex. That is, there is no plausible inference that Sheppard‘s gender was the “but-for” cause of his treatment under VSU‘s disciplinary proceedings. Accordingly, his claim was properly dismissed.
2.
Sheppard‘s equal protection claim under
Sheppard‘s equal protection claim, relying on the same facts as his Title IX claim, first fails to demonstrate plausibly that he and Student A were similarly situated. But even assuming Sheppard and Student A were similarly situated, his Amended Complaint fails to plead plausible discriminatory animus. Count III of his Amended Complaint alleging an equal protection violation contains only the conclusory statement, “Debose, was directly responsible for discriminating against Sheppard . . . on account of his male gender . . . .” J.A. 40. Absent any specific allegations that Debose was motivated by discriminatory animus, Sheppard‘s Amended Complaint fails to give rise to a plausible equal protection claim and was also properly dismissed.
B.
Last, we consider Sheppard‘s due process claim under
It is “a well-established principle of federal civil rights litigation . . . that government officials sued in their personal capacities for violations of federal rights are entitled to qualified immunity if the right was not clearly established at the time of the violation.” Doe v. Rector & Visitors of George Mason Univ., 132 F. Supp. 3d 712, 724 (E.D. Va. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009); Saucier v. Katz, 533 U.S. 194, 200-01 (2001)). To determine whether qualified immunity shields Debose, we must consider whether (1) the facts “make out a violation of a constitutional right” and (2) whether that right was “clearly established” at the time of the defendant‘s alleged misconduct. Pearson, 555 U.S. at 232. By looking to the merits of Sheppard‘s claim, we determine prong two ends our inquiry. Id. at 236 (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.“).
“The Supreme Court has [only] assumed, without actually deciding, that university students possess a ‘constitutionally protectible property right’ in their continued enrollment in a university.” Tigrett v. Rector & Visitors of Univ. of Va., 290 F.3d 620, 627 (4th Cir. 2002) (quoting Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 223 (1985)). We have followed the same watchful approach. Tigrett, 290 F.3d at 627 (“Assuming the Appellants possessed some constitutionally protected interest in continued enrollment, they were not deprived of such an interest . . . .“).
In the absence of binding precedent, Sheppard advances that under Virginia law, he had an implied contract with VSU under its Student Code of Conduct such that he cannot be subject to arbitrary or haphazard suspensions without notice or opportunity to be heard. But Sheppard fails to point to any Virginia state law to support his theory. And our review, though admittedly only revealing trial court cases, if anything, suggests state law does not support Sheppard‘s view. See Bryarly v. Shenandoah Univ., 41 Va. Cir. 238 (Cir. Ct. of Va., City of Winchester Jan. 31, 1996) (stating that “assuming arguendo the Plaintiff‘s contention that the Policy Manual was a contract,” there was still no breach of contract); Faculty for Responsible Change v. Visitors of Madison Univ., 38 Va. Cir. 159 (Cir. Ct. of Va., Rockingham Cnty. Oct. 5, 1995) (finding governance procedures of the James Madison University Faculty Handbook “expressed the parties’ hopes and expectations with respect to faculty reorganizations and curriculum changes, but, as applied to the facts of this case, they are not an enforceable contract between the defendant and the faculty“).9
Sheppard also argues he had a property interest in “VSU‘s policies and procedures.” But we have held that mere “[v]iolations of . . . school procedures are insufficient by themselves to implicate the interests that trigger a federal due process claim.” Kowalski v. Berkeley Cnty. Schools, 652 F.3d 565, 576 (4th Cir. 2011)
Against this landscape, we conclude the right Sheppard asserts was not clearly established. The Supreme Court and this Court‘s assumptions, without express recognition, hardly amount to a clearly established right. Sheppard, in fact, admits as much. See Opening Brief of Appellant at 16 (“It has been an open question whether students enjoy a property interest in higher education that affords due process protection for academic or disciplinary misconduct sanctions.“). Further, Sheppard‘s additional arguments regarding an implied contract or general property interest in policies and procedures underscore the unestablished nature of any right. We agree with the district court that Debose is entitled to qualified immunity because there was no clearly established right to continued enrollment in higher education, and, having so concluded, we need not evaluate whether or not Sheppard received procedural due process.
III.
In sum, Sheppard has failed to plead sufficient facts establishing a violation of Title IX or the Equal Protection clause. As to his due process claim, Debose is entitled to qualified immunity because there is no clearly established right to continued enrollment in higher education. Accordingly, we affirm the district court‘s dismissal.
AFFIRMED