Doe v. Purdue University et al

Filing 224

OPINION AND ORDER: The Court GRANTS IN PART John Doe's Motion for Reconsideration [DE 208], and DISMISSES Defendants' Amended Counterclaim [DE 161]. The Court DENIES all other relief requested in the motion. Signed by Magistrate Judge Joshua P Kolar on 2/14/2023. (tc)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOHN DOE,
Plaintiff,
v.
PURDUE UNIVERSITY, et al.,
Defendants.

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CAUSE NO.: 2:17-CV-33-JPK

OPINION AND ORDER
This matter is before the Court on John Doe’s Motion for Reconsideration [DE 208] of the
Court’s order granting summary judgment to Defendants on Doe’s due process claim [DE 206].
Under Federal Rule of Civil Procedure 54(b), “any order or other decision . . . may be
revised at any time before the entry of a judgment.” See Galvan v. Norberg, 678 F.3d 581, 587 n.3
(7th Cir. 2012). “Motions for reconsideration serve a limited function: to correct manifest errors
of law or fact or to present newly discovered evidence. Such motions cannot in any case be
employed as a vehicle to introduce new evidence that could have been adduced during the
pendency of the summary judgment motion.” Caisse Nationale de Credit Agricole v. CBI Indus.,
Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (quotations and citations omitted). Rather, reconsideration
is appropriate when the Court has “patently misunderstood a party, or has made a decision outside
the adversarial issues presented to the Court by the parties, or has made an error not of reasoning
but of apprehension.” Neurology & Pain Mgmt. Assocs., P.C. v. Bunin, No. 3:17-CV-35-JD, 2022
WL 4301797, at *2 (N.D. Ind. Sept. 16, 2022) (quoting Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)).
John’s motion and memorandum assert four arguments for reconsideration: (1) the Court
wrongly found he had not shown an obligation to disclose his Purdue disciplinary record to the

1

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Navy; (2) Purdue failed to raise any other triable issues of fact that would preclude summary
judgment for John; (3) the Court wrongly found that evidence supporting an inference that
Purdue’s disciplinary findings were true would have precluded summary judgment for John; and
(4) the Court failed to address his request to dismiss Defendants’ counterclaim.1
A.

JOHN’S AUTHORIZATION FOR PURDUE TO DISCLOSE RECORDS

John was suspended from Purdue, and removed from the Navy’s ROTC program, after
Purdue determined that he had violated its Anti-Harassment Policy by sexually assaulting a fellow
student, Jane Doe.2 The Court found that John could not sustain a due process claim based on
deprivation of occupational liberty, because he had consented to Purdue disclosing his disciplinary
records to the Navy and had not presented sufficient evidence of an obligation to do so. [DE 206
at 14-18]. Since all agree John provided an authorization for Purdue to disclose the records at issue,
the question becomes whether John was obligated to provide that authorization. John argues that
reconsideration is warranted based in part on new evidence he appends to this motion.
1. John needed to show an obligated disclosure, and failed to do so
Since John’s argument could be read to presume that something less than an obligated
disclosure may satisfy the “stigma-plus” test for a claim based on deprivation of occupational
liberty, the Court briefly addresses the law on this point. The stigma-plus test requires John to
show that the state inflicted “reputational damage” on him, which in turn requires that he did not
consent to the publication of the damaging material. The test has its origins in a case where a
plaintiff sued under § 1983 in lieu of a state law defamation claim, Paul v. Davis, 424 U.S. 693
(1976), and one court has commented that the reputational damage element “has always been

1

Any arguments introduced in John’s reply brief are not considered. “Arguments may not be raised for the first time
in a reply brief.” United States v. Diaz, 533 F.3d 574, 577 (7th Cir. 2008).

2

The Court has ordered that John and Jane Doe will be referred to by pseudonym. [See DE 26].

2

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grounded in common-law conceptions of defamation, ever since the test’s origin in Paul.” Doe v.
Trs. of Ind. Univ., 496 F. Supp. 3d 1210, 1216 (S.D. Ind. 2020) (discussing the history of the test).
However, the contours of the disclosure requirement have not been precisely defined. In
this case, the Seventh Circuit relied on John’s initial allegation that he had a legal obligation to
disclose his disciplinary records, and therefore did not need to confront the issue of whether there
had to be a legal obligation, rather than some less compelling obligation. See Doe v. Purdue Univ.,
928 F.3d 652, 662 (7th Cir. 2019). The Seventh Circuit compared Dupuy v. Samuels, 397 F.3d 493
(7th Cir. 2005), in which child care workers were required by state law to disclose to prospective
employers that they were found to have committed child abuse, to Olivieri v. Rodriguez, 122 F.3d
406 (7th Cir. 1997), in which an officer fired for sexual assault “insisted that . . . [he] would have
to tell potential employers why he was fired.” Purdue, 928 F.3d at 661-62. The Court noted that
the plaintiff in Olivieri, where the disclosure was “voluntary and speculative,” could not sustain a
stigma-plus claim, while the plaintiffs in Dupuy, where the disclosure was “compelled and
certain,” could sustain a claim. So the obligation must be something more than “voluntary and
speculative,” although an obligation might be strong enough even if it was somehow less than
“certain.”
At the pleading stage, John alleged a “legal obligation” to disclose, which clearly satisfied
the stigma-plus test. But that allegation was not supported in the summary judgment record. John
never asked the Navy whether he was required to authorize Purdue’s disclosure of his records, or
whether an order or discipline would follow if he declined to authorize disclosure. During
discovery in this case, including depositions of relevant Navy decisionmakers, John’s counsel
never asked those questions either. John wanted the Court to simply assume that an obligation
existed, based on his own testimony that the Navy wanted to be kept “in the loop” about Purdue’s

3

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investigation, and based on what counsel refers to as “military realities” so obvious they did not
have to be spelled out in the record. But speculation, particularly when the relevant facts were
ascertainable, does not establish a genuine dispute for trial.3 And a strategic failure to ascertain
and present supporting facts does not justify reconsideration. Caisse Nationale, 90 F.3d at 1270
(“Whether a matter of strategy or inadvertence, [the] failure to submit these facts to the court
during summary judgment foreclose[s] [a] motion for reconsideration.”).
2. This issue has already been litigated, and John is not entitled to reconsideration
based on evidence he declined to include in the summary judgment record
John did not present evidence supporting his initial allegation of a legal obligation.
Defendants raised this issue in their brief in support of summary judgment:
John’s stigma-plus theory requires him to come forward with evidence that he was
obligated to authorize Purdue to disclose its official determination of responsibility
to NROTC . . . However, there is no evidence that John was obligated to authorize
the Navy to access Purdue’s official determination. John testified in deposition:
Q. You don’t recall one way or the other anybody at the Navy telling you that the
Navy wanted access to information from Purdue?
A: No, I do not.
Lieutenant Redlawsk, the Navy official in charge of NROTC’s investigation of
Jane’s allegation[,] corroborated that there was no compulsion.
Q: . . . Did you ever order [Plaintiff] to turn over information to the Navy about his
Purdue investigation?
A: I wouldn’t say that I ordered him. I don’t recall ever giving him an order to do
so.

3

See United States ex rel Davis v. Prince, No. 1:08-CV-1244, 2011 WL 13092085, at *7 (E.D. Va. June 23, 2011)
(“[N]o reasonable juror could infer [the required state of mind] from Prince’s or Jackson’s vague deposition testimony
. . . This lack of evidence is especially glaring given that relators had an opportunity to depose Prince and Jackson,
and they apparently chose not to ask specific questions.”); Hosea v. Langley, No. CIV.A. 04-0605-WS-C, 2006 WL
314454, at *29 (S.D. Ala. Feb. 8, 2006) (“Because they did not ask the question, one can only guess as to whether the
Hoseas were subjected to differential treatment . . . [o]f course, guesswork cannot defeat a motion for summary
judgment.”), aff’d, 226 F. App’x 863 (11th Cir. 2007).

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[DE 178 at 40-41 (record citations omitted)]. John’s response4 to that argument was as follows:
Defendants describe John’s authorization for Purdue to release disciplinary case
files to the Navy ROTC as “voluntary”; however, John did not so testify, but rather
that the Navy wanted to be “in the loop,” and Purdue NROTC Executive Officer
Craig Remaly testified the authorization form was one that Purdue requested in
John’s case.
[DE 187 at 31]. Defendants raised the issue again in opposition to John’s summary judgment
motion, arguing explicitly that “John has not even tried to prove a legal obligation to disclose.”
[DE 188 at 11]. John reaffirmed his position in the reply brief:
Defendants argue that John was not under a legal compulsion to authorize
disclosure, but that ignores the record. As discussed in [John’s opposition brief5],
John testified that the Navy wanted to be “in the loop,” and Purdue NROTC
Executive Officer Craig Remaly testified the authorization form was one that
Purdue requested in John’s case; with Jane Doe having reported her accusations to
the NROTC and the NROTC looking to Purdue for the investigation, John was in
no position to refuse the authorization.
[DE 191 at 8 (citations omitted)].
The Court granted summary judgment to Defendants, citing the Seventh Circuit’s decision
in this matter, among other cases, indicating that obligated disclosure was necessary to sustain
John’s stigma-plus claim.6 The Court expressed surprise that John had not even pointed to a Navy
4

John argues that the Navy was aware of Jane’s allegations even before he authorized Purdue to release his disciplinary
records to the Navy, but that is not relevant. “It was [Purdue’s] official determination of guilt, not the preceding
charges or any accompanying rumors, that allegedly deprived John of occupational liberty.” Purdue, 928 F.3d 652 at
662-63. Even if John had suffered a deprivation of occupational liberty from the Navy’s mere awareness of the
allegations against him, that stigma was not imposed by Purdue.
5
John’s previous brief repeated this argument: “Defendants describe John’s authorization for Purdue to release
disciplinary case files to the Navy ROTC as ‘voluntary’; however, John did not so testify, but rather that the Navy
wanted to be ‘in the loop,’ and Purdue NROTC Executive Officer Craig Remaly testified the authorization form was
one that Purdue requested in John’s case.” (citations to record omitted).
6

[See DE 206 at 16-18], citing Purdue, 928 F.3d at 662; Indiana Univ., 2021 WL 2213257, at *4 (“[Plaintiff] would
have needed to show that some extant legal obligation—like a statute or regulation—required him to consent to
disclosure of his sexual misconduct finding.”); Doe v. Purdue Univ., 464 F. Supp. 3d 989, 1002 (N.D. Ind. 2020)
(stigma-plus test satisfied because plaintiff “allege[d] that [his chosen] occupations trigger a legal obligation to
disclose the disciplinary proceedings”).
John argues that the Court’s findings were “in conflict with” the decisions of Judge Martin in Doe et al. v. Purdue et
al., 4:18-cv-89-JEM (N.D. Ind., Jan 13, 2022). That case involved two female students who were disciplined after

5

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regulation that would have compelled disclosure, or established that he would need to disclose if
he had wanted to reapply to NROTC. The Court speculated: “Perhaps John’s claims would survive
summary judgment” under those circumstances, but ultimately, “[i]f there was such an argument
to be made, John has opted not to do so.” [DE 206 at 16-17 (emphasis added)].7
John now seeks reconsideration, appending further evidence to his motion. John’s counsel
explains: “[W]hen we did the original briefing, I guess we thought it was enough to say that he
had no choice because that was, basically, the position that he had . . . So I present what I do,
really, with a mind that this is an elaboration of what it meant, to say he had no real choice in the
matter but to do the authorization.” [DE 212, 17:2-14].
John was aware of Defendants’ arguments for dismissal, including the argument that there
was no obligated disclosure. He and his counsel decided “it was enough to say that [John] had no
choice,” because counsel believed John’s mere assertion8 of an obligation was legally sufficient,
despite authority to the contrary. See Olivieri, 122 F.3d at 408-09 (affirming dismissal of a stigmaplus claim despite the plaintiff’s argument that “no police department will hire him without asking
why he was fired”).

Purdue found that they made false accusations of sexual assault against male students. The parties did not contest the
issue of whether there was, or needed to be, an obligated disclosure. [See 4:18-cv-89-JEM, DE 72 at 20 (the plaintiff
“alleged that report [the disciplinary sanction] she must, and Defendants do not dispute that”), DE 73 at 20]. The Court
therefore permitted due process claims to proceed to trial, finding that the claims could proceed “even if [the plaintiff]
is the one who may be legally obligated to report the stigma.” [Id., DE 72 at 21, DE 73 at 20-21 (emphasis added)].
The decision in this case does not conflict with Judge Martin’s decisions, because John has not shown he was
“obligated” to self-report.
7

On at least five occasions, John misstates the Court’s opinion on this point. John claims the Court found certain
hypothetical evidence – such as Navy regulations, or requirements to disclose upon reapplication to NROTC – would
lead to denial of summary judgment. [See DE 209 at 1, 6, 9; DE 214 at 3, 9]. The Court observed that perhaps these
facts could defeat summary judgment, but John elected not to present any of that evidence. [DE 206 at 16-17].

8

At oral argument, counsel explained: “When John Doe said: ‘I was in no position to say no,’ that decides it there,
period.” [DE 221, 13:20-24].

6

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John, as the non-movant, could not defeat summary judgment merely by stating that he
disagrees with the Defendants. He had to “set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment “is
the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that
would convince a trier of fact to accept its version of events.” Wade v. Ramos, 26 F.4th 440, 446
(7th Cir. 2022) (quoting Schacht v. Wis. Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999)
(emphasis added)). John had a chance to elaborate, or designate additional evidence, but chose not
to do so. This was a deliberate decision, not an oversight or misapprehension. John has not directed
the Court to a case in which reconsideration was granted to a party who declined to provide
evidence or argument because he assumed he would win without it. That falls into the category of
“rehashing previously rejected arguments or arguing matters that could have been heard during the
pendency of the previous motion,” which is not appropriate for reconsideration. Caisse Nationale,
90 F.3d at 1270.
3. John’s own evidence and argument undermine any finding that the disclosure was
“obligated”
Even if John being “in no position to refuse” would have been sufficient to defeat summary
judgment, reconsideration would still not be appropriate, because John’s designated evidence did
not support that inference. John asks the Court to assume that he had only two options: grant the
requested authorization, or refuse it and be kicked out of NROTC. Although John repeatedly states
that the Navy “wanted” to rely on Purdue’s investigation, there was no evidence that this created
an obligation for John to release his records:
THE COURT: I don’t see how any of what you cite would have prevented John
Doe from simply stating to his ROTC leadership that he didn’t trust the Purdue
investigation and, therefore, he respectfully declined to provide any authorization
because he wanted a Navy board to address the underlying facts . . . At the very
least, if you’re arguing he was under an obligation, shouldn’t there have been some
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discussion how such a request would have been treated when you were deposing
the Navy officials?
[DE 212, 15:21-16:5]. John’s counsel responded:
I must say that at the time he gave the authorization he was not expecting to happen
what did happen; so, you know, the notion that, “Well, gee, I’m not trusting what’s
over at Purdue, I want a Navy board,” that wasn’t part of his mentality . . . John
Doe knew very well that the Navy wanted access to a disciplinary finding because
that’s what they wanted to rely on as opposed to a separate board. And it was at a
time John Doe was thinking, well, Purdue will do an okay job. Well, they didn’t.
[Id. 16:19-16:23, 19:20-24]. This undermines any argument that John had an “obligation,” legal
or otherwise, to release his records to the Navy. The Navy may have preferred for Purdue to handle
the investigation. But the Navy received no request from John to consider anything else, and there
was no evidence the Navy would have denied such a request. The record does not even show that
John believed the Navy would deny it. He decided not to make that request, since he was “thinking,
well, Purdue will do an okay job.” John now says he was “in no position to refuse” – but that is
his assessment of the situation, not the Navy’s. In the Seventh Circuit’s words, the purported
obligation to disclose was “speculative,” rather than “compelled and certain.” Purdue, 928 F.3d at
662.
The new evidence in John’s reconsideration motion would not compel a different result.
John points primarily to Navy regulations that reference its Honor Code, which requires “honesty,
at all times no matter the outcome” and forbids “a disregard or contempt for authority.” [See DE
209 at 7-8]. But John has not explained how respectfully requesting that the Navy take an
independent look at his case would demonstrate contempt or dishonesty. John believes that
explanation would be unnecessary:
THE COURT: Do you have anything to point to in the record saying that it would
have been insubordinate to simply . . . say, “Sir,” “ma’am,” “if you order me,
absolutely, but I’m not going to voluntarily authorize this?”

8

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[COUNSEL]: Because John Doe’s testimony, what’s in the record is: I was not in
a position to say no. And that’s all you need.9 [DE 221, 8:24-9:6].
John’s counsel suggested that “military realities” dictate that John could never have made
such a request, and any contrary suggestion is so “ridiculous” that this point did not need to be
established in the record. [See id. at 4:10-19, 28:20-29:2]. Material disputes need to be established
by evidence, Fed. R. Civ. P. 56(c), and asserted “military realities” are no exception. Further,
John’s new evidence would not advance the ball in this regard. For example, the Navy’s
Regulations of Officer Development – which counsel sees as proof that John could not possibly
object to the Navy’s procedures – explicitly permit the student to do so. [See DE 208-3 at 197 (the
Performance Review Board is “an informal administrative hearing” designed to “protect[] certain
rights of midshipmen”), 202-203 (“The student or student’s counsel may object to specific board
actions or proceedings, but must provide a statement as to why he or she finds it objectionable.
Any objections will be considered and ruled on by the senior member . . . but are subject to review
by higher authority.”)].
It is worth noting that in some cases plaintiffs claim they will be barred from joining their
chosen career due to a future publication, or compelled self-publication. John did not argue that in
response to the Defendants’ summary judgment motion. John called the Defendants’ claim that he
could not hypothesize about what would happen if he tried the rejoin the Navy a “non-issue.” [DE
187 at 39]. As discussed above and in the Court’s August 11th Opinion and Order [DE 206], the
Navy’s disenrollment determination was at least partially based on the information that John

9

Even if John had wanted to make this request, his speculation about how officers would react does not defeat
summary judgment. “Federal Rule of Civil Procedure 56(e) and Federal Rule of Evidence 602 [both] require that
testimony be based on personal knowledge. Personal knowledge can include reasonable inferences, but it does not
include speculating as to [] state of mind, or other intuitions, hunches, or rumors.” Widmar v. Sun Chem. Corp., 772
F.3d 457, 460 (7th Cir. 2014).

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authorized Purdue to provide to the Navy. John might have attempted to avoid summary judgment
by arguing instead that he provided authorization because he eventually would have faced an
obligation, but that was not the argument presented to the Court on summary judgment. In any
event, “[i]t is not this court’s responsibility to research and construct the parties’ arguments.”
Draper v. Martin, 664 F.3d 1110, 1114 (7th Cir. 2011).10
B. DUE PROCESS
John argues that the “national importance” for due process of the Seventh Circuit’s holding
in Doe v. Purdue requires that Purdue be denied summary judgment. [DE 209 at 2-3]. Counsel
expounded:
[W]hat part of the motion for reconsideration does is it points out the public
importance of the due process rulings of Judge, now Justice Barrett in Doe v.
Purdue. And because they are important, I don’t think they should be undercut by
what you can say is a lack of elaboration . . .
[T]he answer, I think, having argued the case in front of the Seventh Circuit, is they
were bound and determined to find that there was denial of due process in this case.
And what Judge Barrett wrote was one of the main inspirations for the thenSecretary of Education to set up the due process regulations that are now in effect
under Title IX. You know, Doe v. Purdue is a much cited opinion on so many
different issues; and so as far as discretion goes, I think it would be -- let me put it
-- wisely exercised to entertain what is presented here . . .
[DE 212, 17:16-20, 18:6-15].
Courts are not “bound and determined” to find for any particular party or allow any
particular claim for relief to go forward. Courts are bound to follow the law, and determined to
review the record and arguments presented. The existing law at issue here, specifically the

10

Additionally, John presented no evidence that he had in fact tried to rejoin ROTC or the Navy. John testified that
he could re-apply to NROTC, and he “might be” accepted again, but “I don’t know because I have not tried.” [DE
178-27, 169:3-14].

10

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requirement for a compelled disclosure, remains undisputed.11 Purdue argued and presented
evidence that John faced no compelled disclosure and instead voluntarily authorized Purdue to
disclose information to the Navy. John’s attempts to rebut that fall far short of creating a genuine
issue of material fact.
The Court has not “undercut” or contradicted the Seventh Circuit. The Court’s summary
judgment opinion is perfectly consistent with the Seventh Circuit’s opinion on a different factual
record, and at a different stage of litigation that required a very different quantum of proof. At the
pleading stage, the Seventh Circuit considered “only the facts as [John] describes them, drawing
every inference in his favor. In other words, the story . . . is one-sided because the posture of the
case requires it to be.” 928 F.3d at 656 (citing D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 682
(7th Cir. 2013)).
Given John’s insistence that the Seventh Circuit’s opinion at the pleading stage entitles him
to a trial on his claims, the Court reviews a sampling of the facts in the summary judgment record
that were not presented to the Seventh Circuit. In doing so, the Court notes we are now at a stage
where the record is examined for genuine issues of material fact. Discovery was completed.
Defendants and John both have had ample opportunity to develop facts and argue their case. The
story is no longer “one sided,”12 because we are past the pleading stage:


In text messages, John admitted to Jane that he “violated” her:
Received from [Jane Doe] on Mon Dec 28, 2015 10:22 PM: “Or when I
wake up to you touching me or I’m trying to do something and you just touch
me I literally can’t trust you if you don’t respect my boundaries”

11

The Court repeatedly asked John’s counsel whether he contested the legal conclusion that a compelled disclosure
was required for a stigma-plus claim. Counsel responded to the question by claiming that the “notion that there wasn’t
any obligation was non-existent,” [DE 212, 10:23-12:19], that compelled disclosure was “an if that didn’t exist here,”
[id. 12:20-13:8], and that the “hypothetical does not apply here remotely.” [id. 14:2-11]. In other words, counsel did
not dispute that a compelled disclosure is necessary in John’s case.

12

Purdue, 928 F.3d at 656.

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Sent to [Jane Doe] on Mon Dec 28, 2015 10:37 PM: “We already went over
this several times. I cant even apologize anymore because you get angry at me
for it.”
Sent to [Jane Doe] on Mon Dec 28, 2015 10:38 PM: “No I get angry
because you continue to do it and just say sorry you don’t actually change
anything.”
Sent to [Jane Doe] on Mon Dec 28, 2015 10:56 PM: “Im not going in circles
any more [Jane]. What more do you want me to say? Do you want this to be
over? We have literally talked about this for a week and I already told you I
cant change what i did, only what i will do from here on out. Do you want me
to feel shitty for the rest of my life because of what I did? Im feeling like i
will. Im sorry. I cant change what i did, as much as i want to. I violated you
and never should have. What do you want me to do? [DE 183-17 at 58
(emphasis added)]


John told the Seventh Circuit that the investigators “falsely claimed that [John] had
confessed to Jane’s allegations.” 928 F.3d at 657. And at the pleading stage he was free to
do just that. But as the summary judgment record shows, the investigators acknowledged
John’s contention that the messages cited above referred to him placing his hand “on Jane’s
thigh, above her knee, but below her crotch.” [DE 180-4 at 8]. John does not dispute that
he said that to the investigators. The investigators concluded that despite John’s contention,
a preponderance of evidence suggested that he had violated Purdue’s Anti-Harassment
Policy. [Id. at 10].



The Seventh Circuit relied on John’s allegation that Jane did not submit a statement to the
disciplinary committee, and “[i]nstead,” CARE Director Monica Soto Bloom “wrote [the
committee] a letter summarizing Jane’s accusations.” 928 F.3d at 657-58, 664. But the
summary judgment record indicated that the letter was written by Jane and forwarded to
the committee by Bloom. [See Def. Ex. CC]. It not only “summarized” Jane’s allegations
but expounded on them. (“I’ve had to be pulled from various aspects of my training . . .
My nightmares are still getting worse.”). Although John complains that Jane never

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submitted a sworn or signed statement, he presented no evidence that Jane did not draft the
letter.
The Seventh Circuit indicated that based on Jane’s alleged lack of input to the committee, it was
“unclear, to say the least, how [Dean of Students Katherine] Sermersheim and the committee could
have evaluated Jane’s credibility.” 928 F.3d at 663-64. But with this additional evidence, the
committee’s reasoning becomes clearer. The panel did receive a statement from Jane, and the text
messages – particularly John’s admission that he “violated” Jane, after she complained about
“wak[ing] up to you touching me” – seemed to corroborate her allegations.
John believes everyone is misinterpreting his texts; the Court acknowledged his argument
and did not (as John complains) assume that the texts proved his guilt. Rather, the Court explained
that the messages were part of a package of evidence from which “a reasonable juror could infer
that John sexually assaulted Jane.” [DE 206 at 15-16]. John continues to argue the point based on
his interpretation of these facts [DE 209 at 14-22], but the Court properly found that a reasonable
juror could disagree with him.
To be sure, there were problems with Purdue’s approach – or at least, disputed facts
supporting a reasonable inference of gender bias. The Court acknowledged those in permitting
John’s Title IX claim to proceed to trial. Overall, though, the summary judgment record did not
reflect the inexplicable “sham” suspension that John portrayed in his complaint.
C. TRUTH AS DEFENSE TO STIGMA-PLUS CLAIM
John argues the Court erred when it found that John’s liberty interest was contingent on a
finding that Purdue disseminated false information about him. The Court relied on Doe v. Trustees
of Indiana University, 2021 WL 2213257, among other cases, explaining that for a stigma-plus
claim, the state must inflict “reputational damage” by publishing false information without the

13

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plaintiff’s consent. [DE 206 at 14-15]. John argues falsity is not required to maintain a stigma-plus
claim, that the Indiana University court “did not so rule,” and that in fact, “[t]here is no case law
so holding.” [DE 209 at 11].
John ignores large portions of the Indiana University opinion, which explicitly found that
truth is a defense to a stigma-plus claim:
To establish a liberty interest under the “stigma-plus test,” John must show
(1) that the state disclosed false information that damaged his reputation, (2) that
the reputational harm made it “virtually impossible” for him to find employment in
his chosen profession, and (3) that his legal status was altered, depriving him of a
previously held right . . .
This notation [on his transcript], John says, constituted publication by IU to Purdue
for purposes of his stigma-plus claim. Setting aside his consent to that
publication, John is incorrect because a true statement cannot create liability
for defamation. See RESTATEMENT (SECOND) OF TORTS § 558 (1977);
Martino v. W. & S. Fin. Grp., 715 F.3d 195, 206 (7th Cir. 2013) (“Any statement
actionable for defamation must not only be defamatory in nature, but false.”) . . .
2021 WL 2213257, at *2, 4 (citing Yeatts v. Zimmer Biomet Holdings, Inc., 940 F.3d 354 (7th Cir.
2019) (emphasis added)). The defamatory statement must be false because “[t]he ‘stigma’ part of
the stigma-plus test has always been grounded in common-law conceptions of defamation.” Id. at
*2. This is consistent with the holdings of numerous other courts addressing this question in the
student discipline context.13
It should be emphasized that falsity was not the basis for dismissing John’s due process
claim – it was one reason why John could not have been granted summary judgment on the claim.

13

See, e.g., Babinski v. Queen, No. CV 20-426-SDD-EWD, 2022 WL 3453513, at *7 (M.D. La. Aug. 17, 2022) (“A
constitutionally protected liberty interest is implicated only if a student is [disciplined] in a manner that creates a false
and defamatory impression about him.”) (brackets omitted); Doe v. Rector & Visitors of George Mason Univ., 132 F.
Supp. 3d 712, 722-23 (E.D. Va. 2015) (“A plaintiff must allege (i) a stigmatizing statement (ii) made public by the
public university, (iii) in conjunction with his [discipline] from the university, and (iv) that the charge was false.”);
Borrell v. Bloomsburg Univ., 63 F. Supp. 3d 418, 441 (M.D. Pa. 2014) (“In order to satisfy the ‘stigma’ prong, a
[student] must show . . . that the [public] statement was substantially and materially false.”) (reversed on other grounds,
870 F.3d 154 (3d Cir. 2017)) (quoting Kocher v. Larksville Borough, 548 Fed. Appx. 813, 820 (3d Cir. 2013)).

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As discussed previously, the claim was dismissed because John did not show that his selfpublication of his disciplinary record was obligated. John’s argument that falsity is not required
certainly has some pull; we don’t reserve due process only for the innocent. Perhaps future cases
will require a more detailed analysis of whether the falsity element of defamation should really
carry forward in this context. But this case does not call for a resolution of that question. As
explained above, the Court ultimately granted summary judgment on the due process claim based
on John’s voluntary authorization for Purdue to release his disciplinary records. So any dispute
about whether John could have maintained a stigma-plus claim based on reputational damage from
true statements by Purdue is moot.
John complains that a falsity requirement undermines the plaintiff’s ability to challenge the
state’s allegedly flawed procedures, but he has exhaustively scrutinized Purdue’s investigation and
disciplinary process over five years of litigation in federal court. He cannot credibly argue that he
was unable to challenge Purdue’s procedures. More importantly, John has not identified any case
in which a plaintiff satisfied the stigma-plus test by demonstrating “reputational damage” from a
true statement.14 The Seventh Circuit has not squarely addressed this question, but the Court’s
research revealed cases, including Indiana University, in which such claims were explicitly
rejected. Based on the authorities presented, John has not identified a manifest error of fact or law
that merits reconsideration.

14

John points to Mann v. Vogel, 707 F.3d 872, 878 (7th Cir. 2013), which described stigma-plus as “when a state actor
casts doubt on an individual’s ‘good name, reputation, honor or integrity’ in such a manner that it becomes ‘virtually
impossible for the [individual] to find new employment in his chosen field.’” That general description does not
preclude a falsity requirement. See, e.g., Ersek v. Twp. of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996) (“For
government action to infringe the ‘reputation, honor, or integrity’ of an individual, that government action first must
involve a publication that is substantially and materially false.”); see also Strasburger v. Bd. of Educ., Hardin Cnty.
Cmty. Unit Sch. Dist. No. 1, 143 F.3d 351, 356 (7th Cir. 1998) (a cause of action based on a liberty interest in
government employment “requires the employee to show that a public official made defamatory statements about him.
These statements must be false assertions of fact.”).

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D. AMENDED COUNTERCLAIM
The Court did not address the parties’ arguments regarding Defendants’ Amended
Counterclaim [DE 161]. Whether or not the counterclaim would proceed depended in part on
whether John’s due process claim proceeded. The parties have now fully briefed the issue, with
the benefit of the Court’s summary judgment ruling. With the narrowing of the claims at issue, the
Court will now turn to the counterclaim. Defendants seek the following declaratory relief:
A.
Declare that John Doe’s above-alleged misconduct violated Purdue University’s
conduct regulations.
B.
Declare that Purdue University, in the exercise of its discretionary authority as an
instrumentality of the State of Indiana to police the safety of its campus, has at all relevant
times possessed good and adequate cause to suspend John Doe from enrollment at Purdue
University.
C.
Declare that Purdue University, in the exercise of its discretionary authority to
protect its educational environment from interference with its educational mission, has at
all relevant times possessed good and adequate cause to exclude John Doe from Purdue
University’s educational environment.
D.
Declare that there is no Purdue-imposed stigma on John Doe’s occupational liberty
for Navy ROTC enrollment or a career in the United States Navy.
John first argued that the first three requests should be dismissed because they “involve
state law police powers.” [DE 183 at 50-51]. The specifics of this argument are unclear, and he
cites no legal authority to support it. To the extent intended purely as a jurisdictional argument, it
is without merit. On one hand, John argued that “[i]t is not the federal court’s role to determine
independently and declare that conduct violated the university’s student code and that the
university had the basis to suspend a student from campus.” Id. On the other hand, John’s
complaint itself requests expungement of this incident from his Purdue disciplinary record. John
does not explain why the Court would have jurisdiction over his claim, but not Defendants’
counterclaim. The counterclaim will not be dismissed for lack of jurisdiction. See 28 U.S.C. § 1367

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(the court retains supplemental jurisdiction over “all other claims that are so related to claims
[within] original jurisdiction that they form part of the same case or controversy”).
Next, John argues that the declaratory relief should be denied as “repetitious and
unnecessary.” United States v. Zanfei, 353 F. Supp. 2d 962, 965 (N.D. Ill. 2005). Under the
Declaratory Judgment Act, the Court “may declare the rights and other legal relations of any
interested party seeking such declaration,” 28 U.S.C. § 2201(a) (emphasis added), but this act
“confers a discretion upon the courts rather than an absolute right upon the litigant.” Wilton v.
Seven Falls Co., 515 U.S. 277, 287 (1995). Further, if the Court “determines . . . that a declaratory
judgment will serve no useful purpose,” it can deny the requested relief as a matter of “practicality
and wise judicial administration.” Id. at 288.
In the context of a declaratory judgment, a “useful purpose” is one that clarifies the legal
relationship between the parties by resolving an imminent dispute. See Med. Assur. Co. v. Hellman,
610 F.3d 371, 377 (7th Cir. 2010) (“The goal of the Declaratory Judgment Act is to allow for the
efficient resolution of disputes by an early adjudication of the rights of parties.”); Trippe Mfg. Co.
v. Am. Power Conversion Corp., 46 F.3d 624, 627 (7th Cir. 1995) (a declaratory judgment is proper
when “the facts alleged, under all the circumstances, show that there is a substantial controversy,
between parties having adverse legal interests, of sufficient immediacy and reality”); Eli’s Chi.
Finest, Inc. v. Cheesecake Factory, Inc., 23 F. Supp. 2d 906, 908 (N.D. Ill. 1998) (“Where, as here,
the accused party has not been unfairly deprived of an opportunity to adjudicate his rights, a
declaratory judgment is unnecessary.”).
Because only John’s Title IX claim remains from his amended complaint, this case might
be resolved by factual findings that Purdue did or did not exhibit gender bias in its treatment of
John, regardless of whether he sexually assaulted Jane. At oral argument, Defendants’ counsel

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noted that they sought declaratory relief in part to clarify whether, as a public safety matter, Purdue
had the right to discipline a student found to have committed sexual assault, regardless of any
gender bias. [DE 223, 46:23-48:3]. However, the Court does not believe that findings specific to
John would resolve that question, nor is it clear that resolution of that question would affect the
legal relationship between John and Purdue. Cf. Dugan v. City of W. Chicago, No. 08 C 2223,
2008 WL 5423565, at *1 (N.D. Ill. Dec. 29, 2008) (permitting a declaratory claim outside the
scope of the complaint, seeking “a definitive finding of [the defendant’s] obligations” under a
contract that would “head off any future litigation” from a counter-defendant).
As a matter of “practicality and wise judicial administration,” the Court exercises its
discretion to dismiss Requests A, B, and C. Wilton, 515 U.S. at 288. Further, Request D is
redundant with the Court’s own finding that John raised no genuine issue of material fact
supporting the existence of Purdue-imposed stigma on John’s occupational liberty. Therefore, the
motion to reconsider is granted as to Defendants’ counterclaim, which is dismissed in full.
E. INTERLOCUTORY APPEAL
John argues that on any issue for which reconsideration is denied, this Court should certify
the relevant question to the Seventh Circuit. He provides only conclusory argument to support this
request, stating that “[k]ey meritorious parts of this case should not be broken off,” and “[t]he
Seventh Circuit should be the Court that determines now the issues on this motion.” [See DE 209
at 23, DE 215 at 14]. To the extent intended as a request to permit an interlocutory appeal, the
request is denied.
When a district court’s order “involves a controlling question of law as to which there is
substantial ground for difference of opinion and [] an immediate appeal from the order may
materially advance the ultimate termination of the litigation, [the judge] shall so state in writing.”

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28 U.S.C. § 1292(b). To allow an interlocutory appeal, “[t]here must be a question of law, it must
be controlling, it must be contestable, and its resolution must promise to speed up the litigation.”
Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000). John has made no effort
to explain how this appeal would “promise to speed up” the litigation. It would more likely have
the opposite effect. Even if John was successful in reviving his due process claim, the case would
return to the summary judgment stage, for the Court to consider Defendants’ other arguments for
dismissal of that claim.
“The idea was that if a case turned on a pure question of law, something the court of appeals
could decide quickly and cleanly without having to study the record, the court should be enabled
to do so without having to wait till the end of the case.” Ahrenholz, 219 F.3d at 677. John’s
arguments for reconsideration are primarily factual in nature: rearguing the interpretation of John’s
text messages, the relationship between Purdue and the Navy, whether John was obligated to
authorize disclosure, and so on. John insists that the Seventh Circuit would agree with him on all
of these issues, but his own confidence in his arguments is not a basis for interlocutory appeal.
F.

CONCLUSION

For the reasons described above, the Court GRANTS in part John Doe’s Motion for
Reconsideration [DE 208], and DISMISSES Defendants’ Amended Counterclaim [DE 161]. The
Court DENIES all other relief requested in the motion.
So ORDERED this 14th day of February, 2023.
s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT

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