Unknown Party v. Arizona Board of Regents et al

Filing 250

ORDER: IT IS ORDERED that: 1. ABOR's motion to exclude Dr. Kaufman (Doc. 159 ) is denied. 2. ABOR's motion for reconsideration (Doc. 227 ) is denied [see attached Order for details]. Signed by Judge Dominic W Lanza on 11/18/22. (MAW)

Case 2:18-cv-01623-DWL Document 250 Filed 11/18/22 Page 1 of 46

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Unknown Party,

No. CV-18-01623-PHX-DWL

Plaintiff,

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ORDER

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v.

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Arizona Board of Regents, et al.,

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Defendants.

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Pending before the Court are a pair of related motions filed by Defendant Arizona

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Board of Regents (“ABOR”): (1) a motion to exclude the opinions and testimony of Dr.

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Lance Kaufman (Doc. 159); and (2) a motion for reconsideration of the Court’s August 30,

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2022 summary judgment ruling (Doc. 227). For the following reasons, both motions are

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denied.
RELEVANT BACKGROUND

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The parties are familiar with the background details of this case, so only a brief
recap is necessary here.

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In April 2016, Plaintiff John Doe, then a student-athlete at Arizona State University

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(“ASU”), and another man had a three-way sexual encounter with ASU student Jane Roe

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at an off-campus party. Roe immediately reported the incident to the police, who declined

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to pursue criminal charges against Doe after reviewing videotape footage of the incident

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(which the other male participant had surreptitiously created). Several months later, Roe

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reported the incident to ASU, claiming she had been too intoxicated to consent. Doe was

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suspended by ASU and, after an investigation, expelled for violating various provisions of

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the ASU Student Code of Conduct, including provisions related to sexual misconduct.

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In this action, Doe initially asserted an array of claims against an array of

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defendants, but his sole remaining claim is a Title IX claim against ABOR. Additionally,

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as this case was proceeding, Doe prevailed in a separate state-court action in which he

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sought review of ASU’s expulsion decision. There, the Arizona Court of Appeals held that

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the sexual misconduct findings against Doe were “not supported by substantial evidence”

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and thus vacated the expulsion order. Doe v. Ariz. Bd. of Regents, 2019 WL 7174525, *9

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(Ariz. Ct. App. 2019).

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Following the close of discovery, ABOR filed a motion for summary judgment on

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Doe’s Title IX claim (Doc. 155) and both sides filed motions to exclude or limit expert

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testimony, including ABOR’s pending motion regarding Dr. Kaufman (Docs. 158, 159,

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161, 164, 165).

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The Court first addressed ABOR’s summary judgment motion, concluding in an

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August 30, 2022 order that summary judgment should be denied because “Doe’s proffered

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evidence could lead a reasonable juror not only to conclude that his disciplinary proceeding

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was marred by an array of procedural irregularities, but also that ASU’s disciplinary

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process generates statistical anomalies that raise an inference of gender bias.” (Doc. 209

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at 60.) Although this conclusion was premised on a finding that “Dr. Kaufman’s statistical

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evidence is relevant and creates a genuine issue of material fact about whether ASU’s Title

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IX disciplinary process was infected by gender bias,” the Court acknowledged that ABOR

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had raised various challenges to the admissibility of Dr. Kaufman’s statistical evidence in

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one of its pending exclusion motions. (Id. at 52-54.) Accordingly, during oral argument,

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the Court clarified that “I plan to address the Daubert motions in the near future. And if

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for whatever reason I were to exclude Kaufman’s opinions, at that point [ABOR] could

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come back and seek reconsideration of the summary judgment [ruling].” (Doc. 228 at 47.)

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On August 30, 2022, the Court also issued a tentative ruling addressing the parties’

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motions to exclude expert testimony. (Doc. 210.) It included a section addressing ABOR’s

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motion to exclude Dr. Kaufman. (Id. at 15-25.) However, before oral argument, ABOR

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filed the pending motion for reconsideration of the August 30, 2022 summary judgment

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order. (Doc. 227.) As discussed in more detail below, the reconsideration motion includes

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various arguments regarding the admissibility and evidentiary value of Dr. Kaufman’s

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statistical evidence. (Id. at 2-10.) Accordingly, in the final version of the order addressing

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the parties’ motions to exclude expert testimony, which was issued on September 27, 2022,

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the Court explained that it would “defer ruling on the motion to exclude Dr. Kaufman until

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it reviews Doe’s response to the motion for reconsideration . . . [which] will also serve as

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a supplemental brief regarding the motion to exclude Dr. Kaufman.” (Doc. 223 at 1 n.1.)

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On October 13, 2022, Doe filed his response/supplemental brief. (Doc. 241.)

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On October 25, 2022, ABOR filed a reply. (Doc. 247.)1

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DISCUSSION
I.

ABOR’s Motion To Exclude Dr. Kaufman (Doc. 159)

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A.

Legal Standard

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“The party offering expert testimony has the burden of establishing its

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admissibility.” Bldg. Indus. Ass’n of Wash. v. Wash. State Bldg. Code Council, 683 F.3d

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1144, 1154 (9th Cir. 2012). Rule 702 of the Federal Rules of Evidence governs the

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admissibility of expert testimony. It provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:

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(a)

the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;

(b)

the testimony is based on sufficient facts or data;

(c)

the testimony is the product of reliable principles and methods;
and

(d)

the expert has reliably applied the principles and methods to
the facts of the case.

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ABOR’s request for oral argument on its motion for reconsideration is denied
because the issues are fully briefed and have been addressed in extensive detail in earlier
orders and oral arguments. See LRCiv 7.2(f).
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As for the threshold requirement that an expert witness be qualified “by knowledge,

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skill, experience, training, or education,” “Rule 702 contemplates a broad conception of

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expert qualifications.” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1015

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(9th Cir. 2004) (internal quotation marks and emphasis omitted). Years of relevant

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experience can establish the necessary “minimal foundation.” Id. at 1015-16. “Disputes

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as to the strength of [an expert’s] credentials . . . go to the weight, not the admissibility, of

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his testimony.” Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th Cir. 1998) (first

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alteration in original) (internal quotation marks omitted).

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A district court’s decision to admit or exclude expert testimony is guided by a two-

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part test that focuses on the opinion’s relevance and reliability. Daubert v. Merrell Dow

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Pharm., Inc., 509 U.S. 579, 589 (1993). “The inquiry envisioned by Rule 702 is . . . a

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flexible one.” Id. at 594. “The focus, of course, must be solely on principles and

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methodology, not on the conclusions that they generate.” Id. at 595.

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Evidence is relevant if it has “any tendency to make the existence of any fact that is

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of consequence to the determination of the action more probable or less probable than it

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would be without the evidence.’” Id. at 587 (quoting Fed. R. Evid. 401). “The Rule’s basic

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standard of relevance thus is a liberal one.” Id.

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The basic standard of reliability is similarly broad. “Shaky but admissible evidence

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is to be attacked by cross examination, contrary evidence, and attention to the burden of

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proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). “Basically,

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the judge is supposed to screen the jury from unreliable nonsense opinions, but not exclude

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opinions merely because they are impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget

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Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). See also Fed. R. Evid. 702, advisory

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committee’s note to 2000 amendment (“[P]roponents do not have to demonstrate to the

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judge by a preponderance of the evidence that the assessments of their experts are correct,

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they only have to demonstrate by a preponderance of evidence that their opinions are

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reliable. . . . The evidentiary requirement of reliability is lower than the merits standard of

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correctness.”) (alteration in original) (internal quotation marks omitted).

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Nevertheless, courts serve an important “gatekeeper” role when it comes to

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screening expert testimony. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). “Unlike

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an ordinary witness, an expert is permitted wide latitude to offer opinions, including those

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that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592

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(citation omitted). “Presumably, this relaxation of the usual requirement of firsthand

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knowledge . . . is premised on an assumption that the expert’s opinion will have a reliable

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basis in the knowledge and experience of his discipline.” Id. This “general ‘gatekeeping’

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obligation . . . applies not only to testimony based on ‘scientific’ knowledge, but also to

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testimony based on ‘technical’ and ‘other specialized’ knowledge.” Kumho Tire Co., Ltd.

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v. Carmichael, 526 U.S. 137, 141 (1999).

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The Court has “broad discretion,” both in deciding whether the evidence is reliable

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and in deciding how to test for reliability. United States v. Hankey, 203 F.3d 1160, 1168

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(9th Cir. 2000). In Daubert, the Supreme Court listed various factors that might apply,

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including whether the expert’s technique or theory (1) can be tested; (2) has been peer

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reviewed or published; (3) has a known or potential basis for error; and (4) is generally

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accepted in the pertinent scientific community. 509 U.S. at 593-94.

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“[t]he Daubert factors were not intended to be exhaustive nor to apply in every case.”

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Hankey, 203 F.3d at 1168.

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applicable to [testimony] whose reliability depends heavily on the knowledge and

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experience of the expert, rather than the methodology or theory behind it.” Id. at 1169. See

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also Fed. R. Evid. 702, advisory committee’s note to 2000 amendment (“Some types of

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expert testimony will be more objectively verifiable, and subject to the expectations of

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falsifiability, peer review, and publication, than others. Some types of expert testimony

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will not rely on anything like a scientific method, and so will have to be evaluated by

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reference to other standard principles attendant to the particular area of expertise.”). The

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bottom line is that “[t]he trial judge in all cases of proffered expert testimony must find that

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it is properly grounded, well-reasoned, and not speculative before it can be admitted. The

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expert’s testimony must be grounded in an accepted body of learning or experience in the

However,

In particular, “[t]he Daubert factors . . . simply are not

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expert’s field, and the expert must explain how the conclusion is so grounded.” See Fed.

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R. Evid. 702, advisory committee’s note to 2000 amendment.

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B.

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Dr. Kaufman possesses a Ph.D. in economics, has been recognized as an “expert in

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the field of economics,” and has “over 15 years of experience performing economic

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research and modeling.” (Doc. 159-1 at 22.) Dr. Kaufman has provided expert witness

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testimony on “forecasting, production cost modeling, and labor costs,” and his hourly rates

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range from $350 to $500 per hour. (Id. at 22.)

The Kaufman Report

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Dr. Kaufman’s opinions in this case can be divided in two categories: (1) opinions

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relating to the enforcement of ASU’s student code, or “whether ASU’s sanctions are gender

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neutral”; and (2) opinions relating to Doe’s alleged economic loss, or “the economic harm

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resulting from [ABOR’s] unlawful expulsion of Doe.” (Id. at 5.)

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Student Code Enforcement Disparity

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Dr. Kaufman explained in his report that ABOR produced certain “summary

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records,” which he refers to as “SCC Charge Data,” during discovery in this case that

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contain information about ASU’s history of student code enforcement concerning alcohol

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(“F-15”) and sexual misconduct (“F-23”) violations. (Id. at 6.) Dr. Kaufman stated that

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the information was categorized by: (1) incident ID, (2) gender of respondent, (3) incident

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type, (4) date and time of incident, (5) date of report, (6) “SCC Charge Code,” (7) Dean of

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Students’ decision, (8) sanctions, (9) whether the decision was appealed, (10) hearing

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board’s recommendation, and (11) University Vice President’s decision. (Id. at 6-7.) For

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F-23 violations, the SCC Charge Data also noted (1) respondent’s student athlete status,

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(2) gender of counter party, (3) charge investigator, (4) date of decision, and (5) date of

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review of decision. (Id. at 7.)

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At the outset of his report, Dr. Kaufman noted that the “SCC Charge Data provide

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several different types of sanctions. These sanctions can be grouped and ranked in order

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of severity. I rank warnings as the mildest sanction, expulsion and suspension as severe

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sanctions, and all other sanctions as mild sanctions.” (Id.)

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Having developed this

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convention, Dr. Kaufman found that of 161 male F-23 respondents, 3 received no sanction,

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79 received a mild sanction, 27 were suspended, and 52 were expelled. (Id.) Of 10 female

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F-23 respondents, 1 received no sanction, 9 received a mild sanction, none received a

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suspension, and none were expelled. (Id.) Dr. Kaufman concluded that “males tend to

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receive more severe sanctions than females” and described his “statistical analysis of the

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disparity between male and female Respondents.” (Id.) As a preface, Dr. Kaufman

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explained:

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In cases concerning the disparate impact on protected classes, outcomes for
the protected class are compared to the rates for other individuals to
determine if the difference is statistically significant.
A disparity is considered statistically significant if it would occur so rarely
in a nondiscriminatory situation that we can rule out that it occurred by
chance. . . . [T]he courts typically require a demonstration . . . that the
disparity is large enough that it would occur by chance less than 5 percent of
the time, or in less than one in 20 non-discriminatory events.
To assess the evidence of gender bias in sanctions, respondents are classified
by two criteria, whether they are a member of the protected class or not, and
whether they were severely sanctioned or not. . . . If the disparity in sanction
rates between two groups is not sufficiently large, or if the direction of the
disparity varies substantially across subgroups, the disparity will not be
statistically significant.
(Id. at 8.)

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Dr. Kaufman also described the “Chi-Square Analysis,” which posits that, if males

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are a certain proportion of all respondents, a gender-neutral process will lead to a similar

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proportion of males actually being punished, as compared to the overall pool of students

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punished. (Id. at 9.) Dr. Kaufman explained that this test “gives us a way of determining

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what proportion is ‘high enough’ to conclude that sanctions were not gender-neutral.” (Id.)

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Separately, Dr. Kaufman discussed the “Mantel Haenszel Peer-Group Analysis,” which is

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a method of peer-group analysis that informs Dr. Kaufman’s use of respondent charges to

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create peer groups with the same combination of charges, controlling for the type and

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number of violations. (Id. at 9-10.)

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Dr. Kaufman performed four analyses. (Id. at 10.) First, he compared the Dean of

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Students’ decisions for male and female respondents in cases involving F-15 and F-23

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charges and determined that males are found in violation more often than females. (Id.)

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Second, he compared the sanctions imposed against male and female F-23 respondents and

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found that males receive severe sanctions at a higher rate than females. (Id.) Third, he

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compared the severity of sanctions for F-15 only charges between males and females and

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found that males are given more severe sanctions. (Id. at 10, 12.) Fourth, he compared the

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sanctions imposed in F-23 cases involving male and female complainants and found that

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incidents involving male complainants (unlike female complainants) never lead to severe

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sanctions. (Id. at 10.)

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Based on these analyses, Dr. Kaufman formed the following three opinions:

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(1) male respondents are found in violation of F-15 and F-23 charges more often than

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female respondents, at a rate that is statistically significant; (2) male F-23 respondents are

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sanctioned with expulsion and suspension at a higher rate than female F-23 respondents, at

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a rate that is statistically significant; and (3) F-23 charges involving male complainants

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result in expulsion and suspension at lower rates than F-23 charges involving female

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complainants. (Id. at 14.) Dr. Kaufman noted that “[w]here possible my analysis controls

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for peer-groups by grouping respondents according to charge or combination of charges”

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but acknowledged that “even within combination of charges there may be non-gender

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factors that affect the severity of sanctions.” (Id.)

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2.

Economic Loss

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Assuming that ABOR’s “actions interrupted Doe’s education and competitive

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sports career [which] modified Doe’s career trajectory and diminished his lifetime earning

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capacity,” Dr. Kaufman estimated “the economic impact by comparing Doe’s economic

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situation in a hypothetical (‘But-for’) world absent [ABOR’s] unlawful actions with Doe’s

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current expected economic situation (‘Actual’).” (Id. at 15.) Dr. Kaufman based his

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calculations on some of the opinions (e.g., Doe was an elite freestyle wrestler, and coaching

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at an NCAA Division I program requires elite competitive wrestling experience) of Owen,

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who is another of Doe’s experts, and on Doe’s testimony that he planned to become a

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college wrestling coach after his competitive career. (Id. at 15-16.)

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Based on those assumptions, and accounting for various other sources of income,

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Dr. Kaufman concluded that Doe’s economic loss could range from $631,490 in a scenario

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in which Doe became a Division II or III coach to $5,543,579 in a scenario in which Doe

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became a Division I coach. (Id. at 20.)

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C.

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In its motion to exclude and motion for reconsideration, ABOR raises an array of

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arguments related to Dr. Kaufman’s student code enforcement disparity opinions. Below,

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the Court has grouped those arguments into four broad categories.

Student Code Enforcement Disparity Opinions

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It should be noted that many of the arguments related to Dr. Kaufman in ABOR’s

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reconsideration motion seem to address both the relevance/admissibility of Dr. Kaufman’s

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opinions and the evidentiary weight (if any) those opinions should have been afforded for

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purposes of evaluating ABOR’s entitlement to summary judgment. Accordingly, in this

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part of the order, the Court addresses ABOR’s arguments to the extent they are intended

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as relevance/admissibility objections (because such objections go to whether Dr.

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Kaufman’s opinions should be excluded, as requested in ABOR’s motion at Doc. 159). In

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Part II of this order, the Court addresses the related but sometimes distinct question of

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evidentiary weight (which goes to ABOR’s reconsideration request at Doc. 227).

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1.

F-23 Opinions—Failure To Consider Underlying Facts
a.

ABOR’s Arguments

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Two of Dr. Kaufman’s opinions are intended to establish the existence of gender-

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based disparities in the sanctions imposed against ASU students found responsible for

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violations of section F-23 (i.e., “sexual misconduct”) of the Code of Student Conduct.

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Those opinions are that (1) male F-23 respondents are sanctioned with expulsion and

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suspension at a statistically significant higher rate than female F-23 respondents; and (2)

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F-23 charges involving male complainants result in expulsion and suspension at lower rates

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than F-23 charges involving female complainants. (Doc. 159-1 at 14.)

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Most of ABOR’s challenges focus on those opinions. (Doc. 159 at 5-11; Doc. 227

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at 2-10.) ABOR’s overarching position is that because “sexual misconduct” is defined

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under section F-23 as encompassing a wide range of conduct,2 yet Dr. Kaufman made no

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effort to control for the specific types of sexual misconduct at issue in the cases on which

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his F-23 statistics and opinions are based, it follows that those statistics and opinions are

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irredeemably flawed. (See, e.g., Doc. 159 at 6 [“In view of the wide range of actions that

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fall within the definition of ‘sexual misconduct,’ a valid (reliable) comparison of sanctions

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given to male and female students found responsible for violating F-23 of the Code cannot

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be made without specific information as to the type of conduct at issue in each instance.”].)

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In its motion to exclude, ABOR characterizes this flaw both as a problem of

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reliability, because the analysis was not based on sufficient facts and data, and as a problem

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of relevance, because only comparisons of “similarly situated” individuals are relevant in

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a gender discrimination case. (Doc. 159 at 2-7; Doc. 196 at 1-7.) ABOR also contends

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that it provided the necessary factual information to Doe during the discovery process, in

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the form of a “Title IX Case Tracking Report” that “detailed the particular allegations

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against students alleged to have violated [F-23] and other Code violations,” but Doe

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inexplicably “failed to provide it to Dr. Kaufman for analysis.” (Doc. 159 at 7-8.)

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Meanwhile, in its motion for reconsideration, ABOR elaborates on these arguments by

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advancing what the Court perceives to be seven related reasons why Dr. Kaufman’s F-23

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opinions should be considered flawed:

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(1)

Because the Ninth Circuit has recognized that statistical evidence is

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“inherently slippery” and can be exaggerated and distorted, it was manifestly erroneous for

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the Court to rely on Dr. Kaufman’s opinions as part of the basis for denying summary

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judgment. (Doc. 227 at 2-3; Doc. 247 at 1.)

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Under section F-23, “sexual misconduct” is defined as follows: “a. Sexual violence
and other non-consensual sexual contact—actual or attempted physical sexual acts
perpetrated against a person by force or without consent; or b. Sexual harassment—
unwelcome conduct of a sexual nature that is sufficiently severe or pervasive as to create
an intimidating, hostile, or offensive environment; or c. Other unwanted or non-consensual
sexual conduct including but not limited to indecent exposure, sexual exploitation or
voyeurism, or non-consensual photographing or audio-recording or video-recording or
another in a state of full or partial undress or while engaged in sexual activity, or publishing
or disseminating such materials.” (Doc. 189-2 at 16-17.)
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(2)

Dr. Kaufman’s acknowledgement that non-gender factors may affect the

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severity of sanctions is an “admission that renders [his] opinions unreliable and

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inadmissible to establish intentional gender bias under binding Ninth Circuit precedent,”

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as recognized in Gay v. Waiters’ and Dairy Lunchmen’s Union, Local No. 30, 694 F.2d

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531 (9th Cir. 1982), Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654 (9th Cir.

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2002), Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990), and I.V. v. Wenatchee

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School District No. 246, 342 F. Supp. 3d 1083 (E.D. Wash. 2018). (Doc. 227 at 3-4; Doc.

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247 at 2, 5.)3

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(3)

To properly exercise its “role as gatekeeper,” the Court must determine that

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the comparators at issue in Dr. Kaufman’s statistics are “similarly situated” to Doe, as the

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Ninth Circuit did in Freyd v. University of Oregon, 990 F.3d 1211 (9th Cir. 2021), and it

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is an “abdicat[ion]” of that gatekeeping role to characterize the dispute over similarity as

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an argument going to weight rather than admissibility. (Doc. 227 at 4-6.)

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(4)

Because Dr. Kaufman had access to the information necessary to determine

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whether the alleged comparators were similar (i.e., the Title IX Case Tracking Report) but

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failed to utilize it, “[t]his renders his analysis unreliable and insufficient” under Pottenger

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v. Potlach Corp., 329 F.3d 740 (9th Cir. 2003). (Doc. 227 at 6; Doc. 247 at 2-8.)

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(5)

The Court’s determination in the summary judgment order that it was

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reasonable for Dr. Kaufman to treat all F-23 violations as comparable because ASU itself

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has decided that all F-23 violations are unified by a population of similarly situated

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respondents in some material respect (Doc. 209 at 59-60) was factually incorrect, violates

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the principle of party presentation (because Doe never made that argument), and would

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“lead to arbitrary variations in the application and enforcement of Title IX” and

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“incentivize universities to ensure the unnecessary expense of redrafting their codes of

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conduct.” (Doc. 227 at 7-8.)

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As an example of a non-gender factor that may affect the severity of sanctions,
ABOR points to “the ASU Procedures themselves,” which “provide that, in determining
the appropriate sanction to impose, the Dean considers ‘any mitigating or aggravating
factors, including any prior violations of the Student Code of Conduct.’” (Doc. 227 at 67.)
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(6)

ABOR was not required to affirmatively demonstrate the factual dissimilarity

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of the F-23 incidents underlying Dr. Kaufman’s statistics, and any argument to the contrary

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would amount to impermissible burden-shifting. (Doc. 227 at 8-9.)

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(7)

A new exhibit prepared by ABOR, which is enclosed as Exhibit 3 to its

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reconsideration motion, shows that the “great majority” of female F-23 respondents

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discussed in Dr. Kaufman’s statistics “were alleged to have engaged in either sexual

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harassment . . . or incident exposure” and that the one female alleged to have engaged in

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non-consensual sexual conduct was still “not comparable to the circumstances here,” and

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thus “[n]one of the females on which

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Kaufman relied are valid comparators, and

Kaufman’s calculation is irrelevant.” (Doc. 227 at 9-10; Doc. 247 at 8.)
b.

Analysis

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Dr. Kaufman’s opinions related to gender-based disparities in F-23 enforcement,

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although impeachable in various respects, are sufficiently reliable and relevant to qualify

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for admission at trial.

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As an initial matter, and contrary to ABOR’s assertion that “Kaufman’s analysis is

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not evidence of gender bias” (Doc. 247 at 1), the Ninth Circuit has suggested that

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enforcement-disparity statistics such as Dr. Kaufman’s can support an inference of gender

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bias in a Title IX case. Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 949 (9th Cir. 2020)

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(plaintiff’s “allegations of a pattern of gender-based decisionmaking against male

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respondents in sexual misconduct disciplinary proceedings” were “relevant” and bolstered

21

plausibility of Title IX claim); Doe v. Regents of the University of California, 23 F.4th 930,

22

938 (9th Cir. 2022) (“Doe alleges that the respondents in Title IX complaints that UCLA

23

decided to pursue from July 2016 to June 2018 were overwhelmingly male (citing specific

24

statistics for each of those years) . . . . Doe also alleges that the University ‘has never

25

suspended a female for two years based upon these same circumstances’ . . . . As we noted

26

in Schwake, these are precisely the type of non-conclusory, relevant factual allegations that

27

the district court may not freely ignore.”). ABOR makes much of the fact that Schwake

28

and Doe were decided at the motion-to-dismiss stage (Doc. 227 at 3; Doc. 247 at 2 n.1),

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1

but it doesn’t follow that they are inapplicable here. ABOR’s motion to exclude questions

2

whether Dr. Kaufman’s challenged opinions should be admitted under Rule 702, and one

3

of the admissibility considerations under Rule 702—which ABOR expressly disputes in its

4

motion papers—is relevance. The Court interprets Schwake and Doe as recognizing that

5

statistical evidence establishing a pattern of gender-based decisionmaking against male

6

respondents in sexual misconduct disciplinary proceedings is, in general, relevant in a Title

7

IX case such as this one. Accordingly, and without prejudging ABOR’s more specific

8

arguments as to why the manner in which Dr. Kaufman conducted his statistical analysis

9

was flawed, the Court agrees with Doe that the challenged opinions satisfy Rule 702’s

10

“basic standard of relevance,” which “is a liberal one.” Daubert, 509 U.S. at 587.

11

These considerations also foreclose ABOR’s first reconsideration argument, which

12

is that courts must pay careful attention before admitting statistical evidence due to its

13

“inherently slippery nature.” As noted, Schwake and Doe expressly contemplate the use

14

of statistical evidence such as Dr. Kaufman’s to prove bias in a Title IX case. So does Gay,

15

which is one of the cases on which ABOR relies heavily in its reconsideration motion. In

16

Gay, the plaintiffs brought claims alleging “discrimination on the basis of race in the hiring,

17

promotion, and transfer of black male waiters and applicants by . . . several well-known

18

San Francisco hotels and restaurants.” 694 F.3d at 534. Following a bench trial, the district

19

court ruled in the defendants’ favor. Id. On appeal, the plaintiffs limited their challenge

20

to the district court’s rejection of their claims under 42 U.S.C. § 1981. Id. at 536. As an

21

initial matter, the Ninth Circuit clarified that such claims “require proof of intentional racial

22

discrimination” and are analyzed similarly to disparate treatment claims under Title VII.

23

Id. at 537-38.4 On the merits, the court noted that that plaintiffs “were unable to produce

24

any ‘smoking gun’ evidence of overt discrimination” but emphasized that “[t]his failure

25

was not fatal to their case . . . since it is settled that a prima facie showing of disparate

26

treatment may be made without any direct proof of discriminatory motivation.” Id. at 546.

27

4

28

As ABOR notes, Title IX claims such as Doe’s are analyzed like Title VII disparate
treatment claims. (Doc. 227 at 6 nn.5-6.) Thus, the analysis of the Title VII disparate
treatment claim in Gay is instructive here.
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1

The court also emphasized “that proof of the four McDonnell Douglas criteria is not the

2

only way to establish a prima facie case of disparate treatment” and that, “if reliable,

3

generalized statistical data is relevant and admissible at the prima facie case stage of a

4

disparate treatment employment discrimination lawsuit.” Id. at 550. The court added:

5

“This is true whether or not the statistical data introduced is sufficient of itself to establish

6

a prima facie case. Since the question is one of inferring discriminatory intent, the district

7

court should make a sensitive inquiry into such circumstantial and direct evidence of intent

8

as may be available. . . . [A]ll evidence, both direct and circumstantial, statistical and

9

nonstatistical, relevant to that question should be assessed on a cumulative basis.” Id.

10

(citation omitted). Later, the court elaborated: “[T]he best prima facie case utilizing

11

statistical data, one allowing the strongest inference of intentional discrimination outside

12

the McDonnell Douglas framework, is that in which the plaintiff’s statistical proof is

13

‘bolstered’ by other circumstantial evidence of discrimination bringing the cold numbers

14

convincingly to life.” Id. at 553 (citation omitted). Applying these standards, the court

15

stated that the district court had properly considered the plaintiffs’ statistical evidence,

16

notwithstanding “the hotels’ attempts to impeach the waiters’ statistical evidence by

17

demonstrating a lack of qualified blacks in the general labor pool and a relative lack of

18

blacks in the ‘applicant flow,’” but had also properly concluded that the statistical evidence

19

was not, alone, sufficient to establish a prima facie case of discriminatory treatment

20

because “the degree of disparate impact shown by the waiters’ statistical data was

21

insufficient . . . . Although statistical data may, in a proper case, be sufficient alone to raise

22

a prima facie case, the statistics must be considerably more stark than those involved here.”

23

Id. at 552 (emphasis added). In support of this conclusion, the court noted that “[i]n order

24

to establish a prima facie case of disparate treatment based solely on statistical evidence,

25

the plaintiff must produce statistics showing a clear pattern, unexplainable on grounds other

26

than race.” Id. (citation omitted and emphasis added). Finally, although the plaintiffs

27

attempted to identify other circumstantial evidence, apart from their statistical evidence, to

28

support their claim, the court concluded that “[t]his circumstantial evidence . . . does not

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1

appreciably bolster the waiters’ weak statistical proof.” Id. at 554.

2

Gay tends to undermine, rather than support, ABOR’s position for two reasons.

3

First, contrary to ABOR’s first reconsideration argument (i.e., statistical evidence in a

4

discrimination case should be viewed with disfavor due to its slippery nature), Gay

5

recognizes that “reliable, generalized statistical data is relevant and admissible at the prima

6

facie case stage of a disparate treatment employment discrimination lawsuit,” “whether or

7

not the statistical data introduced is sufficient of itself to establish a prima facie case.” Id.

8

at 550. Indeed, Gay touts the potential value of statistical evidence in this context, noting

9

that when it is combined with “other circumstantial evidence of discrimination,” this

10

combination can “bring[] the cold numbers convincingly to life.” Id. at 553. Second,

11

contrary to ABOR’s second reconsideration argument (i.e., if the proponent of statistical

12

evidence acknowledges that the disparities may be explained by non-discriminatory

13

factors, the evidence is irrelevant and inadmissible), Gay merely holds that when a plaintiff

14

seeks to prove disparate treatment based “solely” on statistical evidence or on statistical

15

evidence “alone,” the evidence is legally insufficient if the statistical disparities may be

16

explained by reasons other than discrimination. Id. at 552. But here, Doe does not rely

17

solely on statistical evidence to prove his claim—as discussed in more detail in Part II

18

below, he seeks to rely on the combined weight of Dr. Kaufman’s statistical evidence and

19

evidence of various irregularities. At any rate, the passage from Gay that ABOR block-

20

quotes in its motion (Doc. 227 at 3-4) and re-quotes in its reply (Doc. 247 at 5) is not a

21

statement about the relevance and admissibility of statistical evidence—it is a statement

22

about how to conduct a sufficiency-of-the-evidence review in an intentional discrimination

23

case where (unlike here) the plaintiff seeks to rely “solely” on statistical evidence but

24

cannot eliminate other possible explanations for statistical disparities. The passage does

25

not suggest that such evidence would be irrelevant or inadmissible, and indeed other

26

portions of Gay suggest that the district court properly considered the plaintiffs’ statistical

27

evidence notwithstanding the fact that it was arguably impeachable and was ultimately

28

deemed insufficient to support the plaintiffs’ claims. Id. at 551-52 (noting that “[t]he

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1

district judge undertook an exhaustive analysis of the statistical evidence introduced by the

2

waiters” and “rejected the hotels’ attempts to impeach the waiters’ statistical evidence by

3

demonstrating a lack of qualified blacks in the general labor pool and a relative lack of

4

blacks in the ‘applicant flow’”).

5

Aragon, which is another case on which ABOR relies (Doc. 247 at 3), reinforces

6

these points. In Aragon, a white employee of a waste disposal company brought a Title

7

VII race discrimination claim premised on the allegation that he and other “white or white-

8

looking” employees were terminated, while similarly situated black employees were not,

9

and the reasons given for his termination were pretextual. 292 F.3d at 657-58. The

10

plaintiff’s sole evidence of pretext was that “three of the four [employees] singled out for

11

lay off that night were white.” Id. at 663. See also id. (“Aragon’s statistics . . . stand

12

precariously unsupported by other probative evidence of race discrimination.”) (cleaned

13

up). Although the Ninth Circuit recognized in a footnote that this statistical evidence was

14

relevant,5 it held that the evidence was insufficient to create a triable issue of fact as to

15

pretext for two reasons: (1) “the sample size is so small” that is fails to establish a “stark

16

pattern”; and (2) “nor does it account for possible nondiscriminatory variables, such as job

17

performance.” Id. (citations omitted).

18

Like Gay, Aragon undermines ABOR’s broad relevance objection to Dr. Kaufman’s

19

statistical evidence as well as ABOR’s first and second reconsideration arguments.

20

Although ABOR cites those cases for the proposition that “Ninth Circuit precedent”

21

requires statistical evidence to “show a clear pattern, unexplainable on grounds other than

22

gender,” and “eliminate non-discriminatory explanations” (Doc. 247 at 2), this supposed

23

admissibility requirement does not exist—ABOR creates it by lifting out-of-context

24

passages from Aragon and Gay that address how to conduct a sufficiency-of-the-evidence

25

review in an intentional discrimination case where (unlike here) the plaintiff seeks to rely

26

solely on statistical evidence. Additionally, whereas the statistical evidence in Aragon was

27

5

28

Aragon, 292 F.3d at 663 n.6 (“[S]tatistical evidence of a company’s general hiring
patterns, although relevant, carries less probative weight than it does in a disparate impact
case.”) (emphasis added).
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1

based on an inadequate sample size, here Dr. Kaufman opines that the enforcement

2

disparities he describes are statistically significant.6

3

Yet another case cited by ABOR, Rose, undermines rather than supports ABOR’s

4

position on these points for the same reasons. Rose was an age discrimination case where

5

the plaintiff submitted “a statistical analysis of Wells Fargo’s employment decisions

6

[suggesting] that the single most important factor in predicting retention or termination

7

. . . was age.” 902 F.2d at 1423. The Ninth Circuit found “these statistics insufficient in

8

themselves to create a triable issue of fact of intent to discriminate” because “to show a

9

prima facie case of disparate treatment based solely on statistics [plaintiffs] must show a

10

stark pattern of discrimination unexplainable on grounds other than age.” Id. (citation

11

omitted and emphases added). Again, this is a statement about sufficiency of the evidence

12

in a discrimination case premised solely on statistical evidence, not a statement about the

13

admissibility and relevance of that evidence (let alone the admissibility and relevance of

14

that evidence where, as here, it simply forms one component of the plaintiff’s proof).7

15

6

16
17
18
19
20
21
22
23
24
25
26
27
28

In a footnote in its reconsideration motion, ABOR suggests that Dr. Kaufman’s
sample sizes are too small. (Doc. 227 at 9 n.11.) Not only is this undeveloped argument
forfeited—to the extent ABOR wished to seek exclusion on this ground, it needed to do so
in its Daubert motion—but it also fails on the merits. Dr. Kaufman opines that at least
some of the results he generated are statistically significant. Freyd, 990 F.3d 1225-26
(“Our prior cases stated a general principle about the reliability of small data sets, but it
does not establish a firm rule about denominators. And although there must be some floor
for the sample size a party must evaluate in order to reach statistical significance, this is
not an appropriate case in which to set such a floor; at least not on this record, where the
expert witnesses themselves disagree about sample size’s relevance. . . . The number of
data points surely goes to the probative value of [plaintiff’s] evidence. But that is a matter
for the experts to debate and the jury to resolve.”) (citations omitted).
7
For similar reasons, the out-of-circuit decisions cited in ABOR’s reply in support of
its exclusion motion (Doc. 196 at 4 n.3) do not require exclusion here. In Haidak v.
University of Massachusetts-Amherst, 933 F.3d 56 (1st Cir. 2019), the First Circuit held
that the Title IX plaintiff’s statistical evidence was alone insufficient to survive summary
judgment due to his expert’s “fail[ure] to address an array of alternative explanations” for
the gender-based disparity in enforcement outcomes in assault cases, including the
possibility that the “male students . . . committed more serious assaults.” Id. at 75. Haidak,
like the Ninth Circuit cases discussed above, is not a case about admissibility under Rule
702 and does not address whether statistical-disparity evidence may be used in conjunction
with other circumstantial evidence of discriminatory intent (as Doe seeks to use it here) to
survive summary judgment. Meanwhile, in Doe v. University of Denver, 952 F.3d 1182
(10th Cir. 2020), the statistical evidence did not address disparate enforcement outcomes
but whether the school’s “decisions regarding the initiation of sexual-misconduct
proceedings were motivated by considerations of gender.” Id. at 1195 (emphasis added).
Additionally, the court was only addressing the legal sufficiency of the statistical evidence
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1

Indeed, elsewhere in the opinion, the Ninth Circuit suggested that the statistical evidence

2

was relevant. Id. (“[E]ven if the statistical evidence and the evidence of replacement six

3

months following the merger arguably support an inference of discrimination with respect

4

to Reed, we find that evidence insufficient to support a jury verdict on the ultimate question

5

of discrimination.”).8

6

Having addressed some of ABOR’s broader objections to Dr. Kaufman’s F-23

7

opinions, the Court now turns to Dr. Kaufman’s failure to consider the factual

8

circumstances underlying each F-23 incident. ABOR’s overarching contention—which it

9

identified as both a reliability and relevance problem in its motion to exclude and

10

developed in more depth in its third and fifth reconsideration arguments—is that because

11

“sexual misconduct” is defined so broadly under F-23, it is meaningless to compare the

12

outcomes in F-23 enforcement proceedings without more information about the specific

13

conduct giving rise to each proceeding.

14

Although this argument is not without force, it does not require the exclusion of Dr.

15

Kaufman’s challenged opinions. ABOR may be correct that Dr. Kaufman’s statistics

16

for purposes of surviving summary judgment, not the relevance and admissibility of the
evidence under Rule 702.
8
ABOR’s reliance on I.V. v. Wenatchee School District No. 246, 342 F. Supp. 3d
1083 (E.D. Wash. 2018), is even more misplaced. There, the plaintiff (IV) was a middleschool student who had been the victim of a series of bullying incidents over a period of
years committed by a fellow student (YAF). Id. at 1087-91. In an ensuing Title IX action
against the school district, the plaintiff’s expert sought to offer “an opinion as to the
motivation behind YAF’s conduct (i.e., whether it was ‘because of’ sex).” Id. at 1091.
This expert “opine[d] that the bullying IV experienced was ‘unquestionably sexually
driven.’” Id. at 1092. The district court excluded this opinion on a variety of grounds,
including that (1) it was “not based on adequate information” because the expert, among
other things, “did not know whether YAF pushed, kicked, or hit other kids in the class”
and thus did “not consider the full constellation of facts, as is required for the issue at
hand”; and (2) the expert “failed to set down an principles connecting the data and her
conclusion” and instead simply offered “her own ipse dixit.” Id. at 1092-93. Here, in
contrast, Dr. Kaufman does not purport to offer the opinion that the decisionmakers in
Doe’s case were, in fact, subjectively motivated by gender bias—an opinion that would
impermissible for a host of reasons, as recognized by the I.V. court. Instead, Dr. Kaufman
merely seeks to offer opinions about the statistical significance of certain data he compiled,
while leaving it to the factfinder to decide whether an inference of discriminatory intent
should be drawn from those statistics. (Doc. 159-1 at 6 [“Males receive severe sanctions
of expulsion and suspension at a higher rate than females charged with the same violations.
This different is statistically significant.”].) Nothing in I.V. suggests that the use of
statistics in this fashion is improper, and the cases discussed elsewhere in this order suggest
this is a permissible use.

17
18
19
20
21
22
23
24
25
26
27
28

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1

would have been more useful had he considered the factual circumstances giving rise to

2

the F-23 cases he analyzed, but statistical evidence is not rendered irrelevant and

3

inadmissible simply because other, even better statistics are available. Cf. J.SH Sec. Indus.

4

D.C.S., Ltd. v. Bartech Sys. Int’l, Inc., 2010 WL 11575538, *5 (D. Nev. 2010) (“Prior

5

dealings involving refrigerators would be more relevant, but it cannot be said that JSH’s

6

prior dealings with safe orders from LVS are irrelevant.”).

7

acknowledging that it would have been even more relevant for Dr. Kaufman to analyze the

8

outcomes of F-23 cases involving the specific type of “sexual misconduct” that Doe was

9

accused of (i.e., sex by force and/or without consent), it remains relevant that gender-based

10

disparities exist in ASU’s enforcement of “sexual misconduct” cases more generally. In

11

Austin v. University of Oregon, 925 F.3d 1133 (9th Cir. 2019), the Ninth Circuit suggested

12

that female students “accused of sexual misconduct” would qualify as “similarly situated

13

students” who had “been accused of comparable misconduct” in a case involving a Title

14

IX claim brought by a male student. Id. at 1138. As discussed in the summary judgment

15

order, although this passage from Austin is not dispositive here (because the Ninth Circuit

16

was not addressing the question of admissibility under Rule 702), it still “supports the

17

conclusion that Dr. Kaufman’s statistics qualify, at a minimum, as relevant evidence that a

18

reasonable juror could construe as supporting Doe’s Title IX claim.” (Doc. 155 at 55-57.)

19

As also discussed in the summary judgment order, “this is not a situation where Dr.

20

Kaufman made up his own definition of ‘sexual misconduct’ in an attempt to create some

21

sort of cherry-picked statistic. . . . [S]ection F-23’s definition of ‘sexual misconduct’ is a

22

definition both created and used by ASU, which suggests that ASU has already decided it

23

unifies a population of similarly situated respondents in some material respect.” (Id. at 59.)

24

Given this backdrop, the Court is satisfied that Dr. Kaufman’s challenged opinions

25

fall within Rule 702’s broad conception of relevance. Female students found responsible

26

for committing “sexual misconduct” in violation of F-23 are similar enough to Doe, who

27

was also found responsible for committing “sexual misconduct” in violation of F-23, that

28

a comparison of the two sets of cases (Dr. Kaufman’s first challenged F-23 opinion) is

- 19 -

Thus, while again

Case 2:18-cv-01623-DWL Document 250 Filed 11/18/22 Page 20 of 46

1

relevant here.

Similarly, male students found responsible for committing “sexual

2

misconduct” in violation of F-23 against a male complainant are similar enough to Doe,

3

who was found responsible for committing “sexual misconduct” in violation of F-23

4

against a female complainant, that a comparison of the two sets of cases (Dr. Kaufman’s

5

second challenged F-23 opinion) is also relevant here.

6

In the summary judgment order, the Court reached the same conclusion, holding

7

that “[t]o the extent ABOR argues [Dr. Kaufman’s first F-23] statistic is misleading

8

because it involves a comparison of episodes of ‘sexual misconduct’ that may be factually

9

dissimilar, and thus does not involve a comparison of similarly situated male and female

10

students, this is an argument as to the weight of the evidence that ABOR can pursue at trial

11

through cross-examination.” (Doc. 155 at 57.) In its third reconsideration argument,

12

ABOR contends that “[t]his approach violates the Court’s role as gatekeeper” and cites

13

Freyd as a case supporting its position. (Doc. 227 at 4-6.) Accordingly, before addressing

14

the merits of ABOR’s argument, it is helpful to summarize Freyd.

15

There, a female professor at the University of Oregon brought claims under the

16

Equal Pay Act, Title VII, and Title IX after discovering that “the University pays [her]

17

several thousand dollars less per year than it does four of [her] male colleagues, despite

18

their being of equal rank and seniority.” 990 F.3d at 1214. The district court granted

19

summary judgment in the university’s favor on all of Freyd’s claims but the Ninth Circuit

20

reversed in part. As for the Equal Pay Act claim, the analysis turned on whether Freyd and

21

the four male professors held “substantially equal” jobs, such that the male professors could

22

be considered relevant comparators.

23

comparators’ jobs are rendered unequal by the differences in the research that they do,

24

centers that they run, and funding that they obtain” but the Ninth Circuit reversed, holding

25

that “the evidence here is not so one-sided as to mandate this conclusion as a matter of law”

26

and that “[w]e do not have the tools to resolve the despite without intruding on the civil

27

jury’s function. . . . [A] reasonable jury could find that Freyd and her comparators did

28

substantially equal work. Accordingly, the district court’s grant of summary judgment on

The district court held “that Freyd and her

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1

this claim was in error.” Id. at 1220-23. Next, as for the Title VII disparate impact claim,

2

the Ninth Circuit again reversed, holding that the district court erred by finding “as a matter

3

of law that Freyd’s statistical evidence was insufficient to sustain a claim of disparate

4

impact” and that “[w]e do not think that we can resolve this dispute among the experts.”

5

Id. at 1225. In contrast, the Ninth Circuit affirmed the district court’s grant of summary

6

judgment on Freyd’s Title VII disparate treatment claim. Id. at 1228-29. As for that claim,

7

Freyd’s theory was that “similarly situated individuals outside her protected class were

8

treated more favorably than her.” Id. The Ninth Circuit held that Freyd’s evidence was

9

insufficient with respect to this theory because “Freyd’s comparators engaged in retention

10

negotiations with the University and were granted substantial salary increases as a result,”

11

whereas “Freyd has never engaged in retention negotiations,” and thus Freyd had “not

12

presented evidence sufficient to establish a prima facie case under the McDonnell Douglas

13

framework because she has not shown that similarly situated individuals outside of her

14

protected class were treated more favorably than her.” Id. Finally, the court affirmed the

15

district court’s grant of summary judgment on Freyd’s Title IX claim for the same reason,

16

holding that “[a]s with her Title VII disparate treatment claim, because Freyd has presented

17

no evidence of intentional discrimination, there is no genuine issue of material fact here.”

18

Id. at 1229.

19

In the Court’s estimation, Freyd does not undermine (and, arguably, supports) the

20

conclusion in the summary judgment order that the parties’ dispute over whether the

21

comparators selected by Dr. Kaufman were sufficiently similar to Doe is a question of fact

22

that should be decided by the jury at trial. Indeed, in Freyd, the Ninth Circuit reversed the

23

district court’s conclusion that the male professors were too dissimilar to qualify as relevant

24

comparators for purposes of the plaintiff’s Equal Pay Act claim, emphasizing that because

25

“the evidence here is not so one-sided as to mandate this conclusion as a matter of law,”

26

the district court had “intrud[ed] on the civil jury’s function” by concluding otherwise. Id.

27

at 1220-23. This approach is consistent with Court’s approach here. See also Alaska Rent-

28

A-Car, 738 F.3d at 968-70 (affirming district court’s admission of expert testimony, where

- 21 -

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1

the expert “compared Avis’s . . . experience with [Alamo’s] experience after Cerberus

2

bought Alamo out of bankruptcy” and the opposing party objected on the ground “that

3

differences between Alamo and Budget . . . made Alamo an invalid comparison,” because

4

the challenge to “using Alamo as the comparator” was a challenge that “go[es] to the

5

weight of the testimony and its credibility, not its admissibility”). Finally, although it is

6

true that Freyd affirmed the district court’s grant of summary judgment on the plaintiff’s

7

intentional discrimination claims under Title VII and Title IX, on the ground that the

8

plaintiff’s comparators were not similarly situated for purposes of those claims, the Court

9

agrees with Doe (Doc. 241 at 6) that this portion of the decision turned on fact-specific

10

considerations that shed little light on the dispute here. Even accepting that professors who

11

engaged in retention negotiations are dissimilar to professors who never engaged in

12

retention negotiations, it doesn’t follow that ASU students accused of “sexual misconduct”

13

as that term is defined in F-23 are too dissimilar from each other to provide a relevant basis

14

for comparison.9 The Court also notes that the passages from Freyd on which ABOR relies,

15

like the passages from Gay, Aragon, and Rose discussed above, do not address the

16

relevance and admissibility of statistical evidence but the sufficiency of that evidence for

17

purposes of surviving summary judgment. This further undermines ABOR’s reliance on

18

Freyd as a basis for seeking the exclusion of Dr. Kaufman’s statistics on relevance grounds

19

under Rule 702.

20

Nor is there any merit to ABOR’s fifth reconsideration argument, which attacks the

21

portion of the summary judgment order noting that Dr. Kaufman did not make up his own

22
23
24
25
26
27
28

For similar reasons, ABOR’s reliance on Moran v. Selig, 447 F.3d 748 (9th Cir.
2006) is misplaced. There, the Ninth Circuit concluded that the members of a class of
“virtually all Caucasian former MLB players who played in the Major Leagues for less
than four years between 1947 and 1979 and were accordingly denied MLB pension and
medical benefits” were not “similarly situated to . . . the former Negro League players who
also played in the Major Leagues between 1947-79 but receive[d] medical and
supplemental income benefits under the Negro League Plans” for the “basic” reason that
“in order to qualify for the benefits under the Negro League Plans, the players to whom
[plaintiffs] seek to equate themselves must have played in the Negro Leagues—a
qualification that [plaintiffs] indisputably lack.” Id. at 751, 755-56. This fact-specific
ruling sheds little light on the comparability of ASU students accused of sexual misconduct
in violation of F-23.
9

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1

definition of “sexual misconduct” but instead utilized the definition created and utilized by

2

ASU. To the extent ABOR accuses the Court of “creat[ing] this argument on behalf of”

3

Doe, who “never made this argument” himself (Doc. 227 at 7), this accusation is belied by

4

the record. In response to the motion to exclude, Doe argued as follows: “ABOR has not

5

presented any evidence that the respondents reflected in the F-23 spreadsheets are not

6

similarly situated. . . . The data produced by ABOR categorizes all F-23 charges into a

7

single category of sexual misconduct. ABOR does not and cannot provide any support for

8

its allegation that the various conduct constituting ‘sexual misconduct’ under its own Code

9

is somehow ‘less’ serious than other harms.” (Doc. 188 at 6.) Elsewhere, Doe argued:

10

“ABOR argues that for purposes of a gender discrimination claim, ‘similarly situated’

11

means that the misconduct in which the comparators are alleged to have engaged must be

12

of ‘comparable seriousness.’ This threshold is met—all violated F-23, the same sexual

13

misconduct violation under the Code.” (Id. at 8-9.) The analysis in the summary judgment

14

order reflected the Court’s acceptance and agreement with these arguments, albeit while

15

using slightly different phrasing. It is disappointing that ABOR would accuse the Court of

16

stepping outside the judicial role and acting as Doe’s advocate under these circumstances.

17

Next, as for ABOR’s contention that “[t]he Court also manifestly errs because the

18

[summary judgment order] does not cite evidence supporting its supposition that ASU

19

‘decided’ all F-23 violations were comparable” (Doc. 227 at 7), the Court disagrees for the

20

reasons stated in Doe’s response: “[T]hat ASU grouped all F-23 conduct together by

21

definition in its own student handbook is a fact established by evidence presented by

22

ABOR [including the handbook].” (Doc. 241 at 7.)10 As Doe further notes, “ABOR does

23

not present any evidence supporting its conclusory argument that [the subsections within

24

F-23] are grouped by severity. . . . ABOR still does not endeavor to rank the seriousness

25

of the acts of sexual misconduct along these lines. Nor can it. Each subsection includes a

26
See also Freyd, 990 F.3d at 1222 (“The dissent’s conclusion that two faculty
members in the same department cannot be compared is inconsistent with the fact that the
University’s own administrators regularly make these comparisons for purposes of setting
salaries. The question is not whether faculty members can be compared, but how they
compare, and the latter comparison is one fraught with judgment, not law.”).
10

27
28

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1

range of behavior. . . . For instance, persistent sexual harassment that creates a hostile

2

environment (subsection B) could certainly rise to or past the level of seriousness of non-

3

consensual sexual touch in subsection A.” (Id. at 8-9.) Finally, as for ABOR’s contention

4

that the Court’s approach may “incentivize universities to endure the unnecessary expense

5

of redrafting their codes of conduct” (Doc. 227 at 8 n.9), such public policy arguments are

6

unhelpful when evaluating questions of relevance and reliability under Rule 702.

7

Having determined that Dr. Kaufman’s F-23 opinions are relevant despite his failure

8

to consider the specific factual circumstances giving rise to the underlying proceedings, the

9

Court next considers whether Dr. Kaufman followed a reliable methodology when forming

10

those opinions. ABOR’s overarching argument on that issue, which it frames as a failure

11

to consider “sufficient facts and data” in its motion to exclude and further elaborates upon

12

in its fourth reconsideration argument, is Dr. Kaufman’s approach was unreliable because

13

he had access to data setting forth the factual circumstances of the underlying incidents

14

(i.e., the Title IX Case Tracking Report) and simply failed to consider it. ABOR cites

15

Pottenger as its best case supporting exclusion in this circumstance.

16

This argument presents a fairly close call.

Although it is not clear that Dr.

17

Kaufman’s failure to consider the Title IX Case Tracking Report poses a reliability

18

problem, as opposed to some other type of flaw,11 ABOR is correct that, under Pottenger,

19

an expert’s failure to consider a particularly critical set of data can undermine the

20

evidentiary value of the expert’s statistical analysis. In Pottenger, a 60-year-old executive

21

at a paper company asserted a claim of age discrimination after he was terminated and

22

replaced by a 43-year-old. 329 F.3d at 744-45. In support of this claim, Pottenger offered

23

11

24
25
26
27
28

The concept of reliability seems like a poor fit here because there was no need for
Dr. Kaufman to consider the Title IX Case Tracking Report when formulating his
challenged opinions, which simply track the outcomes in cases involving F-23 violations.
Because those opinions don’t purport to control for the specific circumstances of the
underlying incidents (beyond the fact that each incident involved conduct that fell within
F-23’s broad definition of “sexual misconduct”), it follows that the methodology Dr.
Kaufman used when forming those opinions (i.e., considering the SCC Charge Data) was
reliable. At bottom, ABOR’s criticism is not that Dr. Kaufman used a flawed methodology
when addressing the particular questions he chose to address. Instead, the criticism is that
he addressed the wrong questions. That seems like an argument about relevance, not
reliability.
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1

statistical evidence suggesting that “the company’s June 2000 reduction in force [RIF]

2

disproportionately affected older employees.” Id. at 747. Nevertheless, the district court

3

granted summary judgment in the employer’s favor and the Ninth Circuit affirmed, holding

4

that the statistical evidence was insufficient to create a genuine issue of fact as to whether

5

the employer’s proffered reason for terminating Pottenger (i.e., “he was not prepared to

6

make the tough decisions necessary to turn around the Idaho Pulp and Paper Division”)

7

was pretextual. Id. at 745, 747-48. Although the court recognized that a plaintiff asserting

8

a discrimination claim may, in general, “use statistics to show an intent to discriminate,” it

9

held that Pottenger’s statistical analysis, which “t[ook] into account only two variables—

10

the employee’s age at the time of the RIF and whether the employee was terminated,”

11

should be “treated skeptically” because it “fail[ed] to account for other relevant variables.”

12

Id. at 747-48. In particular, the court noted that “the variable most likely to have offered a

13

legally appropriate explanation of why certain employees were selected for lay-off [was]

14

job performance.” Id. at 748. The court further noted that Pottenger’s expert was offered

15

access to job-performance data before conducting his analysis but “specifically acquiesced

16

in the suggestion that obtaining data about individual employees’ performance reviews was

17

unnecessary.” Id. As a result, the court concluded: “If Pottenger had had access to only

18

two variables, we would be presented with a different case. But here, where Pottenger had

19

or had access to additional relevant data and chose not to use it, we conclude that

20

Pottenger’s statistical analysis is insufficient to raise a triable issue of fact regarding

21

pretext.” Id.

22

It is understandable why ABOR would view Pottenger as a case supporting its

23

position. From ABOR’s perspective, Dr. Kaufman is just like Pottenger’s expert in that he

24

had access to the variable that was most likely to explain any differences in F-23

25

enforcement (i.e., the specific factual circumstances underlying each F-23 violation, which

26

were set forth in the Title IX Case Tracking Report) yet chose not to consider that data and

27

instead relied on other, less probative data (i.e., the details set forth in the SCC Tracking

28

Data, which were limited to the gender of the respondent/complainant, the outcome of the

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1

proceeding, and the bare fact that the respondent was found to have committed an F-23

2

violation). Nevertheless, the Court discerns two reasons why Pottenger does not do all of

3

the work that ABOR wants it to do here.

4

First, Pottenger is not a case about relevance and admissibility under Rule 702—

5

the Ninth Circuit’s holding was that Pottenger’s statistical evidence was not alone

6

sufficient to create a triable issue of fact on the issue of pretext due to his expert’s failure

7

to consider the most important variable. But it doesn’t necessarily follow, from the fact

8

that a particular piece of evidence is alone insufficient to avoid summary judgment, that

9

the piece of evidence is also irrelevant and inadmissible. Thus, to the extent ABOR seeks

10

to rely on Pottenger as a basis for excluding Dr. Kaufman’s statistical analysis (as

11

contrasted with contesting the weight of that statistical analysis for purposes of evaluating

12

ABOR’s entitlement to summary judgment, which is an issue addressed in Part II below),

13

that reliance is misplaced.12

14

Second, there are important differences between Pottenger and this case when it

15

comes to the expert’s explanation for not considering the additional data. As noted, in

16

Pottenger, the expert “specifically acquiesced in the suggestion” that job performance data

17

was “unnecessary.” 329 F.3d at 748. Here, in contrast, Dr. Kaufman stated in his report

18

that he attempted to obtain “a sample of case files to develop additional controls, but

19

[ABOR] declined to provide such data.”

20

declaration prepared several months later (in response to ABOR’s contention that he had

21

12

22
23
24
25
26
27
28

(Doc. 159-1 at 14.)13

Additionally, in a

During oral argument on the Daubert motions, which occurred shortly after ABOR
filed its reconsideration motion and cited Pottenger for the first time, the Court suggested
that Pottenger addresses the admissibility of statistical evidence. (Doc. 243 at 94.) Having
now had a chance to more carefully review Pottenger, the Court concludes (as stated
above) that Pottenger is a case about evidentiary weight, not admissibility.
13
Here, Dr. Kaufman appears to be referring to a discovery dispute that arose in mid2021 over whether ABOR’s Rule 30(b)(6) designee needed “to become knowledgeable
about the details of hundreds, if not thousands, of individual discipline proceedings
involving ASU students over a period of many years.” (Doc. 143 at 7.) The Court ruled
in ABOR’s favor as to this dispute because “although the general subject area Doe wishes
to explore . . . which Doe describes in his response as ‘how ASU has treated others in the
student disciplinary system, specifically those involving claims of sexual assault’ . . . is
relevant and ought to be fair game for examination, the verbiage he chose to use when
formulating the deposition topics is vague, overbroad, and would place overly burdensome
and disproportionate preparation demands on ABOR.” (Id. at 9.)
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1

overlooked key details), Dr. Kaufman stated that he had reviewed the Title IX Case

2

Tracking Report before drafting his report but declined to rely on it for two reasons: (1)

3

although the Title IX Case Tracking Report “include[s] high level descriptions of the

4

charges,” it “does not categorize the charges by relative seriousness” and contains a “level

5

of detail” that is “unreliable and incomplete”; and (2) the Title IX Case Tracking Report

6

does not cover the full range of years covered by the SCC Tracking Data14 and the cases in

7

the Title IX Case Tracking Report are not “randomly sampled from the full incidents

8

reflected on the [SCC Tracking Data].” (Doc. 188-2 ¶¶ 4-6.)15 Given these details, Doe

9

argues that “[t]he data in the [Title IX Case Tracking Report] is a far cry from the reliable,

10

complete, ranked, and usable data of Pottenger” and that “[i]n rejecting the use of the [Title

11

IX Case Tracking Report] in favor of the complete data set sworn by ABOR to be accurate

12

in its interrogatory responses, Kaufman preserved the reliability [of] his analysis.” (Doc.

13

241 at 7.)

14

The Court agrees with Doe that these details distinguish this case from Pottenger.

15

Dr. Kaufman did not ignore the Title IX Case Tracking Report but instead made a

16

determination, after reviewing it, that it had various flaws that rendered it unhelpful in

17

developing additional controls for his analysis. Although ABOR vigorously disputes Dr.

18

Kaufman’s determination on this point (and, the Court suspects, will be able to use the Title

19

14

20
21
22
23
24
25
26
27
28

Dr. Kaufman stated in his declaration that the Title IX Case Tracking Report “only
present[s] incidents of sexual misconduct reported to ASU from 2016-17.” (Doc. 188-2 at
6.) Doe acknowledges that Dr. Kaufman was mistaken on this point—the Title IX Case
Tracking Report actually covers the years 2013 through 2017. (Doc. 241 at 6 n.5.)
Nevertheless, it is undisputed that the Title IX Case Tracking Report does not cover the
full range of F-23 incidents summarized in the SCC Tracking Data, which cover the years
2012 through 2017. (Doc. 247 at 3 [“[T]he Report did not exist prior to the 2013-14
academic year.”].)
15
At times, Doe has suggested that the Title IX Case Tracking Report was produced
in a confusing and/or indecipherable manner during discovery, such that ABOR should
bear any blame for Dr. Kaufman’s failure to consider it. (Doc. 243 at 87-89; Doc. 246 at
3 [“[T]he documents were not produced in a searchable format, yet ABOR’s counsel
claimed the opposite during Daubert oral arguments. Presenting the documents in
searchable format would constitute a misrepresentation that would make the data within
the TIX Spreadsheets appear more accessible than it truly is.”].) In response, ABOR has
provided a detailed timeline of its production efforts (Doc. 247 at 3-5) as well as a flash
drive containing the Title IX Case Tracking Report itself (Doc. 248), which the Court has
now reviewed. Based on those submissions, the Court rejects any claim that ABOR is
responsible for Dr. Kaufman’s decision not to consider the Title IX Case Tracking Report.
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1

IX Case Tracking Report to great effect when cross-examining Dr. Kaufman), the

2

appropriate way to resolve this dispute is to allow the parties to present their respective

3

positions to the jury at trial. Put in the parlance of Rule 702, Dr. Kaufman’s basis for

4

declining to rely on the Title IX Case Tracking Report may be “impeachable,” but it does

5

not veer into the realm of “unreliable nonsense.” Alaska Rent-A-Car, 738 F.3d at 969.

6

And as noted elsewhere in this order, “[s]haky but admissible evidence is to be attacked by

7

cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”

8

Primiano, 598 F.3d at 564.

9

This leaves ABOR’s sixth and seventh reconsideration arguments, which the Court

10

views as a matched pair. The former is that it would amount to impermissible burden-

11

flipping to fault ABOR for failing to perform its own analysis of the specific factual

12

circumstances of the underlying F-23 incidents because Doe bears the burden of

13

establishing the admissibility of his expert’s opinions. The latter is that ABOR has, at any

14

rate, now conducted the very analysis that it shouldn’t have been required to perform,

15

which shows that the incidents in which female students were found responsible for F-23

16

violations involved much different (and less serious) forms of “sexual misconduct” than

17

the incident at issue in this case.

18

These arguments fail to establish that Dr. Kaufman’s F-23 opinions should be

19

excluded. As for the former, ABOR is of course correct that it does not bear the burden of

20

proof in this context, but this observation does nothing to detract from the Court’s

21

conclusion, as discussed in the paragraphs above, the Doe has met his burden of

22

establishing the relevance and reliability of the challenged opinions. As for the latter, the

23

initial problem is that ABOR did not conduct or disclose its new evidence during the

24

discovery process or in support of its motion to exclude—instead, it presented this evidence

25

for the first time as an attachment to its motion for reconsideration. This approach is

26

impermissible for a host of reasons. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d

27

877, 891 (9th Cir. 2000) (“[A] motion for reconsideration . . . may not be used to raise

28

arguments or present evidence for the first time when they could reasonably have been

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1

raised earlier in the litigation.”) (citation and internal quotation marks omitted). More

2

important, even if this new evidence had been timely disclosed to Doe and timely provided

3

to the Court, it would not necessitate the exclusion of Dr. Kaufman’s opinions. Instead, it

4

simply constitutes evidence that ABOR may present at trial in an attempt to impeach Dr.

5

Kaufman and/or persuade the jury that Dr. Kaufman’s opinions do not support the

6

inferences that Doe hopes the jury will draw from them.

7

2.

F-23 Opinions—Failure To Control For Other Charges

8

Although most of ABOR’s challenges to Dr. Kaufman’s F-23 opinions turn on his

9

failure to consider the factual details of the underlying incidents, ABOR also raises a

10

distinct challenge in its motion to exclude—that “Dr. Kaufman’s methodology is unreliable

11

because he does not account for the fact that many of the respondents charged with [F-23]

12

violations were also charged with other violations of the Code.” (Doc. 159 at 9.) ABOR

13

acknowledges that Dr. Kaufman purported to control for this variable by relying on the

14

Mantel Haenszel peer group test but argues that, because Dr. Kaufman admits this test does

15

not eliminate the possibility that “non-gender factors [may] effect the severity of the

16

sanctions,” it follows that his methodology is unreliable. (Id. at 9-10.) In response, Doe

17

argues that “[t]he Mantel Haenszel test[] is the most widely used method of testing the

18

statistical significance of disparities,” cites other cases approving the use of this test, and

19

argues that ABOR’s reliability challenge is therefore unavailing. (Doc. 188 at 9-10.)

20

Exclusion is not warranted on this basis. Dr. Kaufman sought to control for the

21

existence of other charged violations by applying the Mantel Haenszel test. To the extent

22

ABOR’s position is that the application of this test is insufficient because it does not

23

eliminate the possibility of non-discriminatory explanations for the statistical patterns, this

24

argument fails for the reasons set forth above. Although Gay, Aragon, and Rose recognize

25

that statistical evidence that does not eliminate the possibility of non-discriminatory

26

explanations for the disparity may be legally insufficient to create a triable issue of fact in

27

a discrimination case where the plaintiff seeks to rely solely on that statistical evidence,

28

they do not hold that such statistical evidence is inadmissible and irrelevant. Additionally,

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1

and as discussed in more detail in Part II below, Doe does not rely solely on statistical

2

evidence in this case.

3

3.

Final F-23 Opinion—Failure To Consider Available Data

4

ABOR next raises a challenge that is specific to Dr. Kaufman’s final F-23 opinion

5

(which, as noted above, compares the severity of sanctions imposed in F-23 cases involving

6

male complainants with the sanctions imposed in F-23 cases involving female

7

complainants). ABOR contends this statistic is unreliable because, although Dr. Kaufman

8

stated that most of the data available to him did not identify a complainant’s gender,

9

information was available to him that provided this information. (Doc. 159 at 10.)

10

Specifically, ABOR points to Exhibit 5, row 250 of the Title IX Case Tracking Report.

11

(Id.)

12

In the tentative order issue before oral argument, the Court stated that this argument

13

was based on a false premise because row 250 of the cited document (Doc. 159-4 at 20-

14

22) does not identify the complainant’s gender. (Doc. 210 at 23.) In response, ABOR

15

clarified during oral argument that its brief had a typo and that the reference should have

16

been to row 251 of the cited document. (Doc. 243 at 82.) ABOR explained that this row

17

reveals that the underlying incident was “an F-23 incident involving a male complainant

18

and the sanction was expulsion” and thus Dr. Kaufman’s opinion that “incidents involving

19

male complainants never result in severe sanctions” is erroneous. (Id.)

20

The Court appreciates this clarification but still concludes that ABOR’s criticisms

21

are fodder for impeachment, not exclusion. Dr. Kaufman’s final challenged opinion is that

22

“F-23 charges involving male complainants result in expulsion and suspension at a lower

23

rate than charges involving female complainants.” (Doc. 159-1 at 14.) The support for

24

this opinion is set forth in Table 5, which states that of the 11 F-23 cases involving a male

25

complainant, zero cases resulted in a severe sanction (0%), whereas of the 98 F-23 cases

26

involving a female complainant, 28 cases resulted in a severe sanction (29%). (Id.) If, per

27

row 251, there was actually one F-23 case with a male complainant that resulted in a severe

28

sanction (rather than zero), this would not undermine Dr. Kaufman’s overall opinion that

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1

severe sanctions are imposed less frequently in F-23 cases involving male complainants

2

than in F-23 cases involving female complainants.16

3

More broadly, and as discussed elsewhere in this order, to the extent ABOR believes

4

the information set forth in the Title IX Case Tracking Report is useful in impeaching Dr.

5

Kaufman or otherwise undermining the inferences that Doe intends to ask the jury to draw

6

from Dr. Kaufman’s statistics and opinions, ABOR is free to make its case at trial. The

7

potential for such impeachment does not undermine the Court’s determination that Dr.

8

Kaufman’s challenged opinions are sufficiently relevant and reliable to qualify for

9

admission under Rule 702.

10

4.

Alcohol-Related Opinions

11

Although most of ABOR’s challenges concern Dr. Kaufman’s opinions related to

12

disparities in F-23 proceedings, ABOR’s final challenge concerns Dr. Kaufman’s opinion

13

regarding disparities in F-15 proceedings.17 As noted, Dr. Kaufman’s opinion on that issue

14

is that “[m]ale respondents are found in violation of F-15 . . . charges more often than

15

female respondents.” (Doc. 159-1 at 14.) In its motion to exclude, ABOR argues this

16

opinion is “unreliable and irrelevant” because (1) even though Dr. Kaufman attempted to

17

“control for the ‘type’ of violation by only including matters in which [F-15] was the sole

18

alleged violation,” this attempt was unsuccessful because Dr. Kaufman failed to consider

19

the underlying factual circumstances of each incident and thus failed to “account for the

20

wide variety of conduct that could constitute an [F-15] violation”; and (2) alternatively, by

21

attempting to limit his opinion to disparities in proceedings involving only F-15 violations,

22

“Dr. Kaufman ensured his analysis has no relevance” because “Doe was not solely charged

23

with an [F-15] violation” and thus “[t]here is no issue in this lawsuit about whether the

24

16

25
26
27
28

ABOR may be correct that, in light of this clarification, the title appearing above
Table 5, which is “Male Complainants Do Not Result In Severe Sanctions” (Doc. 159-1 at
14), is inaccurate. But as discussed above, the opinion that Dr. Kaufman discloses in his
report is a relative comparison of the rates of severe sanctions imposed in F-23 cases
involving male and female complainants.
17
Section F-15 provides that the definition of “Prohibited Conduct” includes:
“Violation of the Board or university rules or applicable laws governing alcohol, including
consumption, distribution, unauthorized sale, or possession of alcoholic beverages.” (Doc.
155-2 at 55-56.)
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1

sanctions imposed on students facing solely [F-15] violations are harsher for females than

2

they are for males.” (Doc. 159 at 11-12.) In response, Doe asserts that Dr. Kaufman’s

3

opinion about F-15 violations is reliable, for similar reasons as his opinions regarding F-

4

23 violations, and relevant, because a juror can infer the presence of gender bias from the

5

fact that men are sanctioned for alcohol violations at a higher rate than women. (Doc. 188

6

at 12-13.) Doe also contends that “the most granular data available on F-15 violations is

7

that presented in the F-15 Spreadsheet created and produced by ABOR.” (Id.)

8

Again, ABOR demands too much at the motion-to-exclude stage. If true, the

9

conclusion that ASU sanctions men accused of alcohol violations more often than women

10

accused of alcohol violations is relevant, both because (1) Doe was accused of an alcohol

11

violation and (2) any statistical evidence showing that ASU is biased against men in

12

disciplinary proceedings is at least some evidence supporting Doe’s gender bias claim. The

13

fact that Doe was accused of multiple violations, and that ASU’s record of enforcing

14

alcohol violations may not be as probative of bias as ASU’s record of enforcing sexual

15

misconduct, is fertile territory for cross-examination, but it does not provide a basis for

16

exclusion. Finally, as for Dr. Kaufman’s failure to account for the specific factual

17

circumstances of each underlying alcohol violation, not only does this criticism merely go

18

to whether Dr. Kaufman’s opinion is impeachable (as opposed to inadmissible) for the

19

reasons stated above with respect to Dr. Kaufman’s F-23 opinions, but this criticism does

20

not implicate Pottenger in the same way because there is no evidence that these details are

21

tracked by ASU or were provided to Dr. Kaufman, only for him to ignore them.

22
23

D.

Economic Loss Opinions
1.

The Parties’ Arguments

24

ABOR argues that Dr. Kaufman’s assumptions about Doe’s career progression are

25

unfounded and unreliable because there is no evidence in the record to support those

26

assumptions. (Doc. 159 at 12-14.) Relatedly, ABOR points to Dr. Kaufman’s assertions

27

that Doe “was a Division One wrestler on his way to earning the title of All-American at

28

nationals” and that Doe’s career plan was “consistent with the career paths of other college

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1

wrestling coaches” and argues that Dr. Kaufman is not qualified to opine on those issues.

2

(Id. at 13 n. 5.) ABOR also asserts that Dr. Kaufman’s assumptions about projected salary

3

data are inaccurate and inapplicable to the facts in this case. (Id. at 15-17.)

4

Doe responds that “there is no requirement that Doe unequivocally prove that he

5

would have achieved any of these positions before an expert can opine on his lost earnings

6

. . . . The standard for assessing earning capacity is whether the plaintiff had a ‘reasonable

7

probability’ of achieving that career path. . . .

8

assumptions about Doe’s career path so long as there is a reasonable probability that those

9

paths would have . . . or are likely to occur.” (Doc. 188 at 14-15.) Doe also argues that

10

Dr. Kaufman’s sources for his salary projection are reliable and, to the extent there are

11

factual disputes to be had, those issues are either scrivener’s errors or may be addressed

12

during cross-examination. (Id. at 15-17.)

Dr. Kaufman is permitted to make

13

ABOR replies that Doe has mischaracterized its argument: ABOR argues that “Dr.

14

Kaufman has no expertise or foundational facts to support his assumptions as to Doe’s

15

expected career path.” (Doc. 196 at 9.) ABOR also objects to Dr. Kaufman’s use of

16

median, rather than entry-level, salary figures and contends that the inflated salary

17

information caused Dr. Kaufman’s opinion to be irrelevant. (Id. at 10-11.)

18

2.

Analysis

19

ABOR’s challenges to Dr. Kaufman’s economic loss opinions lack merit. ABOR’s

20

first objection is that Dr. Kaufman’s assumptions about the trajectory of Doe’s career are

21

unfounded and inaccurate. As for foundation, there is evidence in the record to support the

22

assumption that Doe had a reasonable probability of achieving a wide range of professional

23

outcomes within the wrestling profession. Although the Court has excluded Owen from

24

testifying that Doe would have been one of the nation’s best wrestlers (Doc. 233 at 13-16),

25

the fact that Doe won several wrestling competitions will still be before the jury.

26

Additionally, both Doe’s and ABOR’s experts agree that Doe could have become a

27

Division I coach and simply disagree on where, exactly, Doe’s ceiling would be. (Doc.

28

163-1 at 4, Doc. 165-1 at 10.)

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1

As for accuracy, it is irrelevant—for threshold admissibility purposes—that Dr.

2

Kaufman’s assumptions may be proved inaccurate at trial. All that matters is that they

3

have some basis in the record. An expert may, in appropriate circumstances, rely on

4

assumptions when formulating opinions. Fed. R. Evid. 702, advisory committee notes to

5

2000 amendments (“The language ‘facts or data’ is broad enough to allow an expert to rely

6

on hypothetical facts that are supported by the evidence.”). Disagreement with an expert’s

7

assumptions does not, in general, provide a basis for excluding the expert’s testimony. See,

8

e.g., Marsteller v. MD Helicopter Inc., 2018 WL 3023284, *2 (D. Ariz. 2018) (“The

9

challenges to Equals’ opinions and the weaknesses in his assumptions are issues to be

10

explored on cross-examination.”). To be sure, “nothing in either Daubert or the Federal

11

Rules of Evidence requires a district court to admit opinion evidence that is connected to

12

existing data only by the ipse dixit of the expert. A court may conclude that there is simply

13

too great an analytical gap between the data and the opinion proffered.” Joiner, 522 U.S.

14

at 146.

15

examination, contrary evidence, and attention to the burden of proof, not exclusion.”

16

Primiano, 598 F.3d at 564. “Basically, the judge is supposed to screen the jury from

17

unreliable nonsense opinions, but not exclude opinions merely because they are

18

impeachable.” Alaska Rent-A-Car, Inc., 738 F.3d at 969. See also Fed. R. Evid. 702

19

advisory committee’s note to 2000 amendment (“[P]roponents do not have to demonstrate

20

to the judge by a preponderance of the evidence that the assessments of their experts are

21

correct, they only have to demonstrate by a preponderance of evidence that their opinions

22

are reliable . . . . The evidentiary requirement of reliability is lower than the merits standard

23

of correctness.” (alteration in original) (internal quotation marks omitted)).

Nevertheless, “[s]haky but admissible evidence is to be attacked by cross

24

Here, Dr. Kaufman takes core assumptions that have a reasonable basis in the record

25

and stretches them to opposing extremes to establish a range of possible outcomes. If

26

ABOR can discredit these assumptions at trial, that will also invalidate the opinion. See

27

generally United States v. Crabbe, 556 F. Supp. 2d 1217, 1224 (D. Colo. 2008) (“An expert

28

witness may often ‘assume’ a fact for purposes of applying the methodology. . . . If the

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1

assumption is in error, the opinion may be entirely invalidated.”). But because the

2

assumptions about Doe’s future employability do not veer into “unreliable nonsense,” and

3

ABOR does not dispute Dr. Kaufman’s algebraic methodology of converting a range of

4

assumptions into a range of potential economic loss, exclusion is not warranted.18

5

As for Dr. Kaufman’s salary assumptions, largely the same analysis applies. ABOR

6

objects to Dr. Kaufman’s use of median wages that do not account for school size, stature,

7

or a coach’s experience, arguing that “Dr. Kaufman shows no connection between the

8

salary he selected and the facts in this case.” (Doc. 159 at 15-16.) Not so. Dr. Kaufman’s

9

choice of salary data and analysis thereof may not meet ABOR’s standards for

10

persuasiveness, but it has a foundation in the record. ABOR also points to actual errors in

11

Dr. Kaufman’s data, but Doe replies that these are scrivener’s errors which have since been

12

corrected and do not meaningfully affect Dr. Kaufman’s overall analysis. Scrivener’s

13

errors that have already been corrected are not grounds for exclusion.

14

…

15

…

16

…

17
During oral argument, ABOR placed particular emphasis on Dr. Kaufman’s
assumption that Doe might pursue a coaching position at a Division II or Division III
college. (Doc. 243 at 83-86.) However, ABOR’s experts made the same assumption for
purposes of their opinions and calculations. (Doc. 165-1 at 10 [Borrelli report: “In my
opinion, Doe’s likely career path (if he actually pursues it), both in the but-for and actual
worlds, is limited to coaching for small DI schools or schools in DII or DIII (and would
have been limited to small DI schools or schools in DII or DIII even if Doe had not been
expelled from ASU). In my opinion, the disciplinary proceedings against Doe delayed, but
did not preclude, his ability to obtain employment as a DI wrestling coach at one of the
smaller DI schools.”]; Doc. 165-1 at 154 [Duncan report: “[A]fter graduating from ASU,
it is reasonable to assume that Mr. Doe would have secured a position as a Division II/III
assistant coach, and would likely have remained there for approximately four years.
Assuming success in that position, Mr. Doe could have then applied for a Division I
assistant coach position.”].) Additionally, another of Doe’s experts, Owen, opined that
Doe could have pursued a career as a “collegiate” coach. (Doc. 158-1 at 4 [“I believe the
two years that Doe lost cost him many achievements and accolades that would have
allowed him to increase his marketability (sponsorships and employment) and earning
power down the road, should he choose to make a living as an athlete and then as a coach
at the collegiate . . . level.”].) The Court has now held that Owen may offer this particular
opinion at trial. (Doc. 233 at 8-9 [“Owen is qualified to offer opinions about a collegiate
wrestling coach’s typical qualifications . . . [and] has adequately explained how his
experiences informed his opinions regarding collegiate coaching qualifications.”].)
Accordingly, Dr. Kaufman’s assumption has a sufficient enough basis to avoid exclusion.
18

18
19
20
21
22
23
24
25
26
27
28

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1

II.

ABOR’s Motion For Reconsideration (Doc. 227)

2

A.

Legal Standard

3

“The Court will ordinarily deny a motion for reconsideration of an Order absent a

4

showing of manifest error or a showing of new facts or legal authority that could not have

5

been brought to its attention earlier with reasonable diligence.”

6

Reconsideration is an “extraordinary remedy” that is available only in “highly unusual

7

circumstances.” Kona Enters., Inc., 229 F.3d at 890 (internal quotation marks omitted).

8

“Motions for reconsideration are disfavored . . . and are not the place for parties to make

9

new arguments not raised in their original briefs. Nor is reconsideration to be used to ask

LRCiv. 7.2(g)(1).

10

the Court to rethink what it has already thought.”

11

Mechanical Contractors, 215 F.R.D. 581, 582 (D. Ariz. 2003) (citations omitted).

Motorola, Inc. v. J.B. Rodgers

12

B.

13

In the August 30, 2022 order, the Court concluded that ABOR’s motion for

14

summary judgment should be denied because “Doe’s proffered evidence could lead a

15

reasonable juror not only to conclude that his disciplinary proceeding was marred by an

16

array of procedural irregularities, but also that ASU’s disciplinary process generates

17

statistical anomalies that raise an inference of gender bias.” (Doc. 209 at 60.) ABOR

18

challenges both of these conclusions in its motion for reconsideration. In Part A, ABOR

19

identifies reasons why it was improper to rely on the statistical anomalies identified by Dr.

20

Kaufman. (Doc. 227 at 2-10.) In Part B, ABOR identifies reasons why it was improper to

21

rely on the alleged irregularities. (Id. at 10-17.)

22

Analysis

1.

Statistical Evidence

23

ABOR’s seven reconsideration arguments concerning Dr. Kaufman require little

24

additional discussion because they are largely addressed in Part I above. To the extent

25

those arguments are not offered as relevance/admissibility objections but as evidentiary-

26

weight objections, the Court is unpersuaded: (1) it was not manifestly erroneous to rely on

27

Dr. Kaufman’s opinions for purposes of evaluating ABOR’s entitlement to summary

28

judgment because the Ninth Circuit has repeatedly recognized that statistics such as Dr.

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1

Kaufman’s are useful and relevant (even if not dispositive) in cases involving allegations

2

of intentional discrimination, including Title IX cases such as this one (Schake; Doe; Gay);

3

(2) although Dr. Kaufman’s acknowledgement that the statistical disparities may be

4

explained by non-discriminatory factors suggests the statistics are alone insufficient to

5

create a triable issue of fact (Gay; Aragon; Rose), that principle does not require

6

reconsideration here because Doe does not rely solely on Dr. Kaufman’s statistics; (3) the

7

parties’ dispute over whether the comparators chosen by Dr. Kaufman are similarly situated

8

to Doe is a factual dispute to be resolved by the jury at trial, not a basis for disregarding

9

Dr. Kaufman’s statistics for summary judgment purposes (Freyd; Alaska Rent-A-Car);

10

(4) although Dr. Kaufman’s failure to consider the factual details set forth in the Title IX

11

Case Tracking Report may render his F-23 analysis impeachable, the circumstances here

12

are sufficiently distinguishable from Pottenger that his statistics retain evidentiary value at

13

summary judgment; (5) there was no error, manifest or otherwise, in the Court’s

14

determination that it was reasonable for Dr. Kaufman to treat all F-23 violations as

15

comparable in part because ASU has decided that all F-23 violations are unified by a

16

population of similarly situated respondents in some material respect; (6) ABOR’s burden-

17

shifting arguments have no bearing on the summary judgment analysis; and (7) ABOR’s

18

new evidence does not provide a basis for reconsideration because ABOR did not provide

19

it in support of its summary judgment motion or in support of its exclusion motion, and

20

instead untimely provided it for the first time as an exhibit to its reconsideration request.

21

2.

Roe’s December 11, 2016 Statement

22

This leaves ABOR’s reconsideration arguments concerning irregularities. The first

23

procedural irregularity identified in the summary judgment order was as follows: “[A]

24

reasonable juror could conclude that it was procedurally irregular for Davis not to share

25

Roe’s December 11, 2016 comments with Doe before submitting her final investigative

26

report to the Committee and that it was also procedurally irregular for Davis to assure Doe’s

27

counsel that Roe ‘did not offer any new evidence’ during the December 11, 2016 interview.

28

The former was procedurally irregular because, under § C(5) of the Procedures, ‘[b]efore

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1

concluding the investigation, and upon request, the Dean of Students will provide the

2

parties with an opportunity to respond to all investigative materials.’ The latter was

3

procedurally irregular because, for the reasons discussed above, a reasonable juror could

4

conclude that Roe did, in fact, provide important new evidence during the December 11,

5

2016 interview, by changing her account on several key points.” (Doc. 209 at 38-39.)

6

ABOR now seeks reconsideration of this analysis for four reasons: (1) the Court stepped

7

outside its judicial role by “go[ing] to lengths never attempted by Doe . . . to try to identify

8

‘evidence’ appearing to create a question of fact” on whether Roe’s December 11, 2016

9

interview contained new information; (2) Roe’s December 11, 2016 interview did not, in

10

fact, contain any new information; (3) even assuming the interview contained new

11

information, “Davis did not violate any Procedure in stating that Roe ‘did not offer any

12

new evidence’”; and (4) even assuming there was some procedural violation, it was

13

harmless. (Doc. 227 at 10-14.)

14

ABOR is not entitled to reconsideration based on these arguments. First, ABOR’s

15

accusation of judicial overreach is, like its earlier accusation on this point, both

16

unsupported by the record and disappointing. In its summary judgment motion, ABOR

17

argued that, to the extent Doe sought to rely on “Davis’s statement to Doe that one of Ms.

18

Roe’s written submissions [from December 11, 2016] did not contain new evidence” as a

19

procedural irregularity, this reliance was misplaced because “[a]t best, this assertion

20

reflects a disagreement between Doe and Ms. Davis as to what constitutes ‘new evidence’”

21

and alternatively because “Doe received the opportunity to respond to all information

22

provided by Ms. Roe and did provide lengthy responses, including on December 21, 2016.”

23

(Doc. 155 at 10.) In response, Doe argued that one of the “egregious irregularities in the

24

disciplinary proceedings” occurred when “[t]he University tried to keep Doe from

25

responding to new evidence and ignored the response after receiving it.” (Doc. 189 at 11,

26

14.) Doe elaborated: “Parties have the right to ‘respond to all investigative materials.’

27

Here, Davis refused to grant Doe that right until he hired an attorney who secured the right.

28

The University claimed no substantive new information was provided, but Doe’s attorney

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1

identified substantive, new information presented by Doe, and detail[ed] the egregious

2

flaws, inconsistencies, baseless conclusions, and legal infirmities with the draft report. . . .

3

A reasonable jury can infer gender bias based on the University’s failure to give the male

4

accused an opportunity to review and comment on evidence and granting the female

5

accuser that right . . . .” (Id. at 14-15.) Doe also included, as an exhibit to his response, a

6

copy of the December 21, 2016 letter from his attorney that purported to identify the new

7

information provided by Roe during the December 11, 2016 interview. (Doc. 189-2 at 52-

8

60.) Among other things, this letter stated that Roe provided new information when she

9

“[d]enie[d] being aware of video/photo being taken” and identified earlier statements in

10

which Roe purportedly made conflicting claims on that issue. (Id. at 54.)

11

The parties’ dispute over whether Roe’s December 11, 2016 interview contained

12

new substantive information—and whether ASU engaged in procedural impropriety by not

13

giving Doe a fair opportunity to address that new information—was also the subject of

14

extensive discussion during oral argument. After ABOR’s counsel argued that “Doe does

15

not describe in his papers the supposedly new information in Roe’s comments, or what

16

makes Miss Davis’s statement a misrepresentation at all” (Doc. 228 at 21), the Court posed

17

the following question to Doe’s counsel: “What’s your best piece of new substantive

18

information?” (Id. at 74.) Doe’s counsel responded: “I have a list. But the best one is,

19

that was the first time she said that she didn’t know she was being filmed. . . . [J]uxtapose

20

that with her [earlier] statements to the police, that not only did I know I was being filmed,

21

but that I stopped it, and I had the capacity to stop it, is evidence that she wasn’t

22

incapacitated . . . . So it’s substantive evidence that was never presented and it was the

23

first time that she presented it.” (Id. at 74-75.) In reply, ABOR’s counsel stated: “[Doe’s

24

counsel] said that the biggest inconsistency was [Roe’s] statement about not knowing she

25

was being filmed. There’s nothing in the record where she ever said that she knew she was

26

being filmed and stopped it. The evidence of what she actually said is she saw a flash.

27

That’s been extrapolated—now video was taken. She didn’t know. But once you see a

28

video is taken, all of a sudden she was stopping them from filming. That’s just not in the

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1

record.” (Id. at 82.)

2

Given this backdrop, the Court included, in the summary judgment order, a detailed

3

description of the various statements that Roe made about her awareness of being

4

filmed/videotaped, which included quotations from various documents in the summary

5

judgment record. (Doc. 209 at 38 [“Roe stated on December 11, 2016 that ‘she was not

6

aware that a photo was taken.’ However, during her April 2016 interview with the Tempe

7

Police Department, Roe reported that ‘she saw a camera flash and realized that [Witness

8

1] was taking pictures of her’ . . . . Similarly, during Roe’s initial meeting with Davis on

9

September 19, 2016, Roe stated that ‘[d]uring the encounter, she stated to see flashes going

10

off. She asked what it was and was told not to worry about it. She then responded that she

11

did not want to be recorded.’ And during her subsequent meeting with Davis on October

12

27, 2016, Roe stated that ‘the camera was brought out after she said no.’”].) Based on this

13

summary, the Court concluded that “a reasonable juror could conclude that Roe did, in fact,

14

provide important new evidence during the December 11, 2016 interview, by changing her

15

account on several key points.” (Id. at 39.) It is difficult to see how ABOR could view

16

this as an example of “assum[ing] Doe’s burden,” “act[ing] as a party’s lawyer,” and

17

deciding “to venture outside the adversarial issues presented to the Court by the parties.”

18

(Doc. 227 at 11, 13, cleaned up.) The Court resolved a factual dispute that both parties

19

expressly raised in their summary judgment papers and expressly raised again during oral

20

argument. Analyzing an expressly disputed issue is not judicial advocacy, but the normal

21

discharge of the judicial role.

22

To the extent ABOR’s claim of judicial advocacy concerns the Court’s

23

identification in the summary judgment order of two other examples of new information

24

provided by Roe during the December 11, 2016 interview—first, Roe’s statement that she

25

was too intoxicated to be aware of what was happening or to remember what happened;

26

and second, Roe’s statement that she did not say stop because she was too intoxicated (Doc.

27

209 at 37-38)—these examples were also identified in Doe’s counsel’s letter (Doc. 189-2

28

at 52-55, 59), which Doe cross-referenced in his summary judgment response (Doc. 189 at

- 40 -

Case 2:18-cv-01623-DWL Document 250 Filed 11/18/22 Page 41 of 46

1

14). Accordingly, the inclusion of these examples in the summary judgment order was not,

2

as ABOR argues, an improper attempt to identify evidence “for the first time . . . which

3

Doe did not cite in response to ABOR’s Motion” (Doc. 227 at 11), but the Court’s best

4

effort to fully and fairly address each side’s arguments and proffered evidence.

5

ABOR has also failed to demonstrate that the Court’s resolution of this dispute was,

6

on the merits, manifestly erroneous.

7

statements during her December 11, 2016 interview that were inconsistent with her

8

previous statements. Although ABOR attempts in its reconsideration motion to show how

9

all of Roe’s statements can be reconciled with each other (Doc. 227 at 11-12), accepting

10

these arguments would, at a minimum, require the Court to resolve various inferences in

11

ABOR’s favor (which is impermissible at summary judgment).

A reasonable juror could find that Roe made

12

Because a reasonable juror could find that Roe’s statements were inconsistent, a

13

reasonable juror could also find that it was procedurally irregular for Davis to assure Doe’s

14

counsel that Roe “did not offer any new evidence” during the December 11, 2016

15

interview. The Court fully agrees with Doe on this point: “[W]hile ABOR does not need

16

to use any specific language when conveying to a party that no new information was

17

received from the complainant, ASU cannot lie and say no new evidence was offered.”

18

(Doc. 241 at 14.) Without belaboring the issue, Roe’s account of the sexual encounter was

19

perhaps the most important evidence in the proceeding against Doe. Accordingly, evidence

20

bearing on Roe’s credibility—such as whether her description of the encounter varied over

21

time, even if those descriptions were not flatly inconsistent with each other—was critical.

22

Cf. Doe v. Univ. of Conn., 2020 WL 406356, *4 (D. Conn. 2020) (noting that “in any case

23

involving a ‘he said/she said’ dispute, . . . evidence bearing on credibility is critical”). See

24

generally Jencks v. United States, 353 U.S. 657, 667 (1957) (“Every experienced trial judge

25

and trial lawyer knows the value for impeaching purposes of statements of the witness

26

recording the events before time dulls treacherous memory. Flat contradiction between the

27

witness’ testimony and the version of the events given in his reports is not the only test of

28

inconsistency. The omission from the reports of facts related at the trial, or a contrast in

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Case 2:18-cv-01623-DWL Document 250 Filed 11/18/22 Page 42 of 46

1

emphasis upon the same facts, even a different order of treatment, are also relevant to the

2

cross-examining process of testing the credibility of a witness’ trial testimony.”). The

3

Court thus finds no error, manifest or otherwise, in its determination in the summary

4

judgment order that a reasonable juror could find that it was procedurally irregular for the

5

lead investigator in a sexual misconduct investigation to falsely assure the respondent that

6

the complainant had not offered any new evidence during her last pre-hearing interview

7

and then provide a summary of the last interview to the decisionmakers without first giving

8

the respondent an opportunity to review it.19

9

Finally, ABOR is not entitled to reconsideration based on its contention that any

10

procedural irregularity can be disregarded on harmlessness grounds. First, and as noted in

11

the summary judgment order, this argument is forfeited because it is a new theory that

12

ABOR did not properly raise in the summary judgment motion. (Doc. 209 at 43.) The

13

words “causation” and “harmless” do not appear anywhere in that motion (Doc. 155),

14

which argued that ABOR was entitled to summary judgment because there was no evidence

15

of external pressure to engage in gender bias (id. at 4-5), no evidence of comments

16

reflecting gender bias (id. at 5-7), no evidence of any procedural irregularities (id. at 7-13),

17

and no admissible expert evidence to support Doe’s claim (id. at 13-17). The argument

18

that no procedural irregularity occurred is very different from the argument that any

19

procedural irregularity was harmless. Second, even if the argument weren’t forfeited, Doe

20

has identified various reasons why a reasonable juror could view the irregularity

21

concerning Roe’s December 11, 2016 statement as harmful. (Doc. 241 at 14-15.) Third,

22

and more broadly, the Court is not persuaded that a procedural irregularity in a Title IX

23

19

24
25
26
27
28

In the summary judgment order, the Court concluded that a reasonable juror could
find procedural impropriety not only for the reasons stated above, but also because Davis’s
approach violated § C(5) of the Code. In the motion for reconsideration, ABOR argues
that it was manifestly erroneous to conclude that § C(5) was implicated here. (Doc. 227 at
13.) The Court is not necessarily persuaded. True, one of Davis’s December 20, 2016
emails included the statement “I am happy to have you come in to view her responses”
(Doc. 189-2 at 63), but Davis had already sent the final report to the Dean for review by
the time she made this offer (id. at 64). Nevertheless, regardless of any error in the
interpretation of § C(5), the summary judgment order’s overall determination that a
reasonable juror could find procedural irregularity as to Davis’s treatment of Roe’s
December 11, 2016 statement was not manifestly erroneous.
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1

case becomes irrelevant if the plaintiff cannot draw a direct causal link between that

2

irregularity and the outcome of the underlying disciplinary proceeding. Here, Doe seeks

3

to rely on an array of circumstantial evidence, including statistical evidence of disparities,

4

various procedural irregularities, and the fact that his expulsion was ultimately overturned

5

based on insufficient evidence, in an attempt to prove the existence of gender bias. As

6

noted in Gay, “[s]ince the question is one of inferring discriminatory intent, the district

7

court should make a sensitive inquiry into such circumstantial and direct evidence of intent

8

as may be available. . . . [A]ll evidence, both direct and circumstantial, statistical and

9

nonstatistical, relevant to that question should be assessed on a cumulative basis.” 694

10

F.2d at 550. Disregarding individual procedural irregularities on harmlessness grounds

11

would, at least under the circumstances of this case, violate this directive to conduct a

12

sensitive inquiry that considers the cumulative impact of all of Doe’s evidence.

13

3.

Failure To Disclose “Sex By Force” Theory

14

The second procedural irregularity identified in the summary judgment order was

15

as follows: “A reasonable juror could conclude that the UHB’s decision to find Doe

16

responsible under a sex-by-force theory constituted a procedural irregularity. . . . [T]he

17

summary of the charges provided at the outset of the letter [sent by Dr. Hunter on

18

September 21, 2016] only accused Doe of engaging in sexual acts ‘without her consent’

19

and did not make any separate mention of sex by force. Similarly, during later meetings

20

with Doe, Davis made comments that can be reasonably construed as suggesting the

21

sexual-misconduct investigation was only focused on incapacitation and the lack of

22

consent, not on the presence of force.”

23

reconsideration of this analysis for four reasons: (1) the “undisputed evidence” shows that

24

ASU properly disclosed the sex-by-force theory; (2) alternatively, there is no requirement

25

under the Procedures to provide “a detailed description of each theory of sexual

26

misconduct”; (3) finding a disclosure violation under these circumstances would create an

27

“inherent contradiction” with the Court’s relevance and reliability determinations

28

concerning Dr. Kaufman; and (4) any irregularity was harmless. (Doc. 227 at 14-16.)

(Doc. 209 at 42-43.)

- 43 -

ABOR now seeks

Case 2:18-cv-01623-DWL Document 250 Filed 11/18/22 Page 44 of 46

1

ABOR is not entitled to reconsideration based on these arguments. The first and

2

second arguments are improper because they essentially repeat the same arguments that

3

ABOR made (and the Court rejected) during the summary judgment process. Motorola,

4

215 F.R.D. at 582 (“Nor is reconsideration to be used to ask the Court to rethink what it

5

has already thought.”). At any rate, even after considering ABOR’s latest recitation of

6

these arguments, the Court stands by its earlier conclusion. As Doe correctly notes in his

7

response, even though it is undisputed that “Doe was ‘charged’ with ‘Sexual Misconduct’

8

under F-23 . . . the Dean of Students was required to explain those charges, and she did: by

9

explaining that Doe was being accused of engaging in sex with a person who was

10

incapacitated. . . . [T]here is sufficient evidence for a jury to find that the decision to find

11

Doe responsible for sex by force without notice constituted a procedural irregularity.”

12

(Doc. 241 at 16-17; Doc. 209 at 42-43.)

13

Nor does the Court find any inherent contradiction between this conclusion and the

14

analysis regarding Dr. Kaufman. The issue here concerns notice and compliance with

15

procedural regulations—specifically, whether it is procedurally irregular to inform a

16

student that he is being charged with one specific form of “sexual misconduct” under F-

17

23, only to find him responsible for committing an entirely different form of “sexual

18

misconduct” under F-23. The issue as to Dr. Kaufman was whether a statistical analysis

19

of all “sexual misconduct” cases under F-23, irrespective of the underlying facts, would

20

fall within Rule 702’s broad conception of relevance. Although both analyses touch, in a

21

broad sense, on the same subject matter, they turn on very different considerations.

22

Finally, ABOR’s harmlessness arguments as to the sex-by-force issue fail for the

23

same reasons as its harmlessness arguments regarding Roe’s December 11, 2016

24

statements—they are forfeited, factually unsupported for the reasons stated in Doe’s

25

response (Doc. 241 at 17), and legally misplaced.

26

4.

Arizona Court Of Appeals Decision

27

The final irregularity identified in the summary judgment order was as follows:

28

“[T]he fact of reversal [by the Arizona Court of Appeals] helps support Doe’s contention

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1

that his disciplinary proceeding was infected by irregularities that may, in concert with

2

other evidence, give rise to an inference of gender bias. The clearest support for this

3

conclusion comes from the Ninth Circuit’s recent Doe decision, which identified ‘the state

4

court’s ruling . . . in the writ proceeding . . . that the evidence did not support the Regents’

5

findings’ as one of the ‘procedural irregularities’ that could ‘support an inference of gender

6

bias, particularly when considered in combination with allegations of other specific

7

instances of bias and background indicia of sex discrimination.’ That is essentially what

8

happened here—although Dr. Hightower, the UHB, and Dr. Rund all determined that Doe

9

had committed sexual misconduct in violation of section F-23, the appellate court held that

10

no reasonable person could have reached that conclusion. Although the Court agrees with

11

ABOR that the fact of reversal does not, in itself, mean that Doe must prevail on his Title

12

IX claim or even survive summary judgment—there must be other evidence from which a

13

reasonable juror could conclude this irregularity was indicative of gender bias—it would

14

be reasonable for a juror to find irregularity based on the reversal.” (Doc. 209 at 45,

15

citations omitted). ABOR now seeks reconsideration of this analysis for two reasons: (1)

16

Doe never disclosed his intent to rely on the Arizona Court of Appeals’ decision as

17

evidence of a procedural irregularity; (2) on the merits, the decision does not qualify as

18

evidence of an irregularity. (Doc. 227 at 16-17.)

19

ABOR is not entitled to reconsideration based on these arguments. First, these are

20

essentially the same arguments that ABOR made (and the Court rejected) during the

21

summary judgment process. Motorola, 215 F.R.D. at 582. Second, the Court agrees with

22

Doe (Doc 241 at 18-19) that these arguments fail on the merits—Doe disclosed his intent

23

to rely on the decision (Doc. 155-5 at 100-02) and a reasonable juror could find an

24

irregularity based on the reversal, as recognized by the Ninth Circuit in Doe.

25

…

26

…

27

…

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Case 2:18-cv-01623-DWL Document 250 Filed 11/18/22 Page 46 of 46

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Accordingly,

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IT IS ORDERED that:

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1.

ABOR’s motion to exclude Dr. Kaufman (Doc. 159) is denied.

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2.

ABOR’s motion for reconsideration (Doc. 227) is denied.

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Dated this 18th day of November, 2022.

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