Doe v. Purdue University et al
OPINION AND ORDER: The Court hereby GRANTS Defendants' 18 Motion to Dismiss for Plaintiff's Complaint as to all counts. The Court (1) dismisses without prejudice the claims for injunctive relief in Counts I and II; (2) dismisses without prejudice the state law contract claims in Counts III and IV; (3) dismisses without prejudice all § 1983 claims against Defendants Purdue University, the Purdue University Board of Trustees, and the individual defendants in their official capaci ties; (4) dismisses with prejudice all claims against Defendant Daniels in his individual capacity; (5) dismisses with prejudice the § 1983 damages claims against the individual defendants in their individual capacities for failure to state a claim; and (6) dismisses with prejudice the Title IX claims in Count II for failure to state a claim. Signed by Magistrate Judge Paul R Cherry on 11/15/2017. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
PURDUE UNIVERSITY, PURDUE
UNIVERSITY BOARD OF TRUSTEES,
MITCHELL ELIAS DANIELS, JR., ALYSA
CHRISTMAS ROLLOCK, KATHERINE
SERMERSHEIM, ERIN OLIVER, and
) CAUSE NO.: 2:17-CV-33-PRC
OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Complaint [DE
18], filed by Defendants Purdue University, Purdue University Board of Trustees, Mitchell Elias
Daniels, Jr., Alysa Christmas Rollock, Katherine Sermersheim, Erin Oliver, and Jacob Amberger
on March 31, 2017. Plaintiff John Doe filed a Memorandum of Law in Opposition on June 9, 2017,
and Defendants filed a Reply on June 23, 2017. On September 15, 2017, Plaintiff filed a Notice of
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
On January 24, 2017, Plaintiff John Doe filed his Complaint against Purdue University;
Purdue University Board of Trustees; Mitchell Elias Daniels, Jr., individually and as agent for
Purdue University; Alysa Christmas Rollock, individually and as agent for Purdue University;
Katherine Sermersheim, individually and as agent for Purdue University; Erin Oliver, individually
and as agent for Purdue University; and Jacob Amberger, individually and as agent for Purdue
University. Plaintiff alleges the following facts in his Complaint.
During the 2015 Fall semester and into January 2016, Plaintiff and Jane Doe, both
undergraduate students at Defendant Purdue University, had a dating relationship that included
having consensual sexual intercourse from October to December 2015. On December 13, 2015, Jane
Doe attempted suicide in front of Plaintiff, after which all sexual activity ended. In January 2016,
Plaintiff reported Jane Doe’s suicide attempt to Purdue. In mid-to late January 2016, Jane Doe began
to distance herself from Plaintiff, and their dating relationship ended. From November 2015 to
March 2016, Jane Doe made no reports to the university or to the police of any alleged sexual assault
by Plaintiff. (Cmplt. ¶ 19).
In early April 2016, when Purdue was hosting more than a dozen events to advocate the
reporting of sexual assaults, Jane Doe brought a complaint at Purdue against Plaintiff for sexual
misconduct. On April 11, 2016, Plaintiff received a letter dated that same date from Defendant
Katherine L. Sermersheim, Purdue’s Dean of Students, notifying Plaintiff that Purdue had been
made aware of sexual allegations regarding Plaintiff’s conduct toward another student (Jane Doe)
that, if substantiated, might constitute a violation of Purdue’s anti-harassment policy; that Purdue
had elected to investigate the allegations; and that Defendant Erin Oliver and Defendant Jacob
Amberger were appointed as investigators. Consequently, Plaintiff was not allowed to participate
in Navy ROTC. Id. at ¶¶ 20-24, 28, 34.
Accompanying Dean Sermersheim’s April 11, 2016 letter was a half-page “Notice of
Allegations,” which included the allegations: (i) Jane Doe and Plaintiff were in a dating relationship
during the 2015 Fall semester; (ii) in November 2015, when Jane Doe stayed the night in Plaintiff’s
room, Plaintiff groped her and she said to him it was not OK; and (iii) Plaintiff told Jane Doe that
during another night in November 2015, while they were staying the night in Jane Doe’s room,
Plaintiff had penetrated her digitally while she was sleeping. Plaintiff promptly submitted a written
response to the allegations, stating, in part, that: (i) Jane Doe’s accusations were false; (ii) in
November 2015 when Jane Doe had stayed in Plaintiff’s room, she did not wake up to find Plaintiff
groping her; and (iii) in November 2015 Plaintiff had not digitally penetrated her while she was
sleeping. Plaintiff also provided details of Jane Doe’s suicide attempt. Id. at ¶¶ 25-27, 29-31.
On April 28, 2016, Plaintiff met with Investigators Oliver and Amberger. Plaintiff denied
sexually assaulting Jane Doe and provided texts of his communications with Jane Doe that showed
nothing to indicate that a sexual assault had taken place. Plaintiff provided the Investigators with
a list of over thirty names to substantiate the credibility of his character and integrity, which had
been attacked by Jane Doe. Thereafter, Plaintiff had no further communication with the
Investigators. Id. at ¶ 32.
In the month following the April 28, 2016 meeting with Plaintiff, the Investigators prepared
a Report and sent it to Dean Sermersheim. Without giving Plaintiff an opportunity to review it, Dean
Sermersheim sent, on May 26, 2016, the Investigator’s Report to the panel members of the
three-person panel of the Advisory Committee on Equity; and on May 31, 2016, Dean Sermersheim
sent a letter to Plaintiff advising him that he was to attend a meeting with the three-person panel on
Monday, June 6, 2016, from 2:00 p.m. to 2:30 p.m. Dean Sermersheim’s May 31, 2016 letter further
advised that the panel members had reviewed the complaint, the written responses, and the
Investigator’s Report and that the purpose of the meeting was to listen to the parties who could
provide clarification. Id. at ¶¶ 35-36.
On June 6, 2016, Jane Doe did not appear in person before the three-person panel and Dean
Sermersheim. Instead, a statement dated June 5, 2016, written for Jane Doe by Monica Soto Bloom,
a Title IX Coordinator and Director of the Center for Advocacy, Response, and Education
(“CARE”), was submitted to the Advisory Committee. Jane Doe did not appear in person on any
other date before the Advisory Committee and/or Dean Sermersheim. Id. at ¶ 37.
On June 6, 2016, before the meeting with the three-person panel, Plaintiff met with a
representative of Navy ROTC, who briefly allowed Plaintiff to see a redacted version of the
Investigator’s Report. Plaintiff saw that it falsely stated Plaintiff had confessed to the allegations in
Jane Doe’s complaint. Plaintiff then met with the three-person panel and Dean Sermersheim. The
unrecorded meeting lasted for no more than half an hour and did not involve any sworn testimony,
did not provide for cross-examination questions, and did not allow for the presentation of
documents. The one panel member who had read the Investigator’s Report before the meeting asked
accusatory questions assuming Plaintiff’s guilt, and all the panel members acted with hostility
toward Plaintiff. Plaintiff reiterated that the accusations made by Jane Doe against him were false
and not substantiated by documentation and that the texts Plaintiff had provided were inconsistent
with a sexual assault having taken place. Id. at ¶¶ 38-41.
On June 14, 2016, Dean Sermersheim sent a letter to Plaintiff advising him that, after
considering the information provided by Plaintiff, Jane Doe, and the Investigators and after
consulting with the three-member panel of the Advisory Committee on June 6, 2016, “I [Dean
Sermersheim] have made the determination that a preponderance of the evidence does support a
finding that your [Plaintiff’s] conduct violated the Anti-Harassment Policy.” (Cmplt. ¶ 42). Dean
Sermersheim’s June 14, 2016 letter ordered Plaintiff: (1) to be suspended from Purdue commencing
June 13, 2016, for one full academic year; (2) to continue to have no contact with Jane Doe until she
completes her academic program; (3) as a condition of re-entry, to complete a 90-minute
intervention training or equivalent program offered by the Vice President for Ethics and Compliance
or by CARE; and (4) as a condition of re-entry, to meet the Assistant Director of CARE. The letter
advised Plaintiff that he could appeal the determination to the Purdue Vice President for Ethics and
Compliance, Defendant Alysa Christmas Rollock. Id. at ¶¶ 42-44.
On June 22, 2016, Plaintiff timely appealed to Vice President Rollock, stating that Jane
Doe’s allegations of sexual assault were false, that he never digitally or otherwise penetrated Jane
Doe while she was sleeping, that the determination he had done so was incorrect, and that his “rights
to due process of law have been violated.” Id. at ¶¶ 45-47.
On or about June 28, 2016, Vice President Rollock sent a letter of that date to Plaintiff stating
that she had reviewed Plaintiff’s appeal, Dean Sermersheim’s letters to Plaintiff, and Jane Doe’s
letter dated June 14, 2016, and that, because Dean Sermersheim had not included her reasoning in
reaching her determination, Dean Sermersheim was being directed to revise her June 14, 2016 letter
by June 30, 2016, to include the factual basis for her determination and for the sanctions imposed.
Id. at ¶¶ 48-49. The next day, on June 29, 2016, Dean Sermersheim sent a letter to Plaintiff repeating
her June 14, 2016 letter, adding only that a preponderance of the evidence supported finding that (1)
Jane Doe had fallen asleep on a futon with Plaintiff on the floor beside her and that she woke up to
find Plaintiff inappropriately touching her over her clothing and without her consent by placing his
hand between her legs and moving it up to her “crotch” area; and (2) on another occasion, while Jane
Doe was sleeping, Plaintiff inappropriately touched Jane Doe by digitally penetrating her vagina
without her consent. Dean Sermersheim also added that Plaintiff was not a credible witness and that
Jane Doe was a credible witness. Id. at ¶ 50.
Plaintiff alleges that there there was a failure to apply a burden of proof because Jane Doe
had no supporting documentation for her allegations, which were made five months after the alleged
incidents took place with no contemporaneous reports to the university or the police and which were
made after Plaintiff’s suicide attempt. In contrast, Plaintiff’s statements to the “Notice of
Allegations,” to the Investigators, and to the panel of the Advisory Committee on Equity and Dean
Sermersheim consistently denied Jane Doe’s allegations, and Plaintiff submitted texts exchanged
between Plaintiff and Jane Doe that indicated no sexual assault occurred. Plaintiff alleges that there
was no explanation and no evidence supporting Dean Sermersheim’s statements about credibility
and that, without a hearing that included sworn testimony and cross-examination, there was no basis
for making credibility judgments. Plaintiff alleges that only an anti-male bias to find for the female
complainant and against the male respondent can explain Dean Sermersheim’s purported findings;
Plaintiff alleges that he was presumed to be guilty. Id. at ¶¶ 51-54.
Plaintiff further alleges that the sanctions ordered by Dean Sermersheim did not take into
account that Plaintiff had a previously unblemished disciplinary record and that he had presented
a list of names that would support his character. Also, by placing decision making as to both the
violation and the sanction in one person who is both Dean of Students and Title IX Coordinator, the
decision making was allowed to be tailored to give the appearance of vigorous Title IX enforcement
to satisfy the United States Department of Education Office of Civil Rights (“OCR”). Id. at ¶¶ 55-57.
On July 10, 2016, Plaintiff timely submitted an appeal of Dean Sermersheim’s re-issued
determination and sanctions to Vice President Rollock, asserting: (i) Dean Sermersheim failed to
provide the factual basis for her determination as directed and that she merely restated her
conclusions at greater length; (ii) Purdue never provided Plaintiff an opportunity to review the
Investigator’s Report; (iii) “Dean Sermersheim’s unsubstantiated conclusion that I am not a credible
witness still has not been corroborated with any facts”; (iv) at the June 6, 2016 meeting, two of the
three panel members had not read the report and all three were hostile; (v) the accusations of sexual
assault were false; (vi) Plaintiff would not act to jeopardize his Navy ROTC scholarship; and (vii)
Plaintiff demanded to know the particular evidence used to support Dean Sermersheim’s
determination and to see the Investigator’s Report. Id. at ¶¶ 58-65.
On July 21, 2016, Vice President Rollock sent a letter to Plaintiff upholding Dean
Sermersheim’s determination and sanctions without addressing the substantive issues raised by
Plaintiff’s appeal. On August 16, 2016, Plaintiff involuntarily resigned from Navy ROTC, his dream
of serving his country as a Naval officer destroyed. Id. at ¶¶ 66-69, 72.
On October 11, 2016, three months after Plaintiff’s first request for production of records,
Purdue Associate Legal Counsel Tandra Foster advised that Plaintiff and his parents could go to
Purdue to review the documents. On October 20, 2016, Plaintiff and his mother did so, but they were
not permitted to make copies. Id. at ¶¶ 70-71, 73-75.
Count I of Plaintiff’s Complaint in this litigation alleges a claim under 42 U.S.C. § 1983 and
the Fourteenth Amendment to the United States Constitution for a denial of Plaintiff’s protected
liberty interest in “his good name, reputation, honor, and integrity” without due process, id. at ¶ 80,
and in his protected property interest in pursuing his education as well as in “future educational and
employment opportunities and occupational liberty” without due process, id. at ¶ 81. Plaintiff alleges
a constitutionally protected property interest in his continued enrollment at Purdue University and
to be free from arbitrary suspension and dismissal arising from the policies, courses of conduct,
practices, and understandings established by Purdue. Plaintiff alleges that this constitutionally
protected property interest arises from the express and implied contractual relationship between
Plaintiff and Purdue. This claim is brought against all Defendants. In the Prayer for Relief, Plaintiff
asks for a judgment on Count I against Defendant Purdue and seeks an award of damages for
damage to his physical well being, emotional and psychological damages, damages to reputation,
past and future economic losses, loss of educational and athletic opportunities, and loss of future
career prospects. Plaintiff also seeks an injunction enjoining violations of the Fourteenth
Amendment in the process of investigating and adjudicating sexual misconduct complaints.
Count II alleges a violation of Title IX of the Education Amendments of 1972 on the basis
that an “erroneous outcome” occurred in this case because Plaintiff was innocent and wrongly found
to have committed sexual assault and because gender bias was a motivating factor in those findings.
Plaintiff alleges that “Defendant Purdue failed to conduct an adequate, reliable, and impartial
investigation when it investigated Jane Doe’s allegations and subsequent adjudication in a manner
that was biased against [Plaintiff].” Id. at ¶ 118. Plaintiff alleges that Purdue has created a victimcentered process that prosecutes an accused male student under a presumption of guilt and
improperly places the burden of proof on the male student, which Plaintiff experienced. Id. at ¶ 121.
Plaintiff alleges that Defendant Sermersheim’s responsibilities as both Dean of Students and Title
IX Coordinator created a conflict of interest and allowed decision making in particular cases to be
tailored to give the appearance of vigorous Title IX enforcement and meet perceived reporting needs
to the U.S. Department of Education Office of Civil Rights. Id. at ¶ 125.
Based upon information and belief, Plaintiff alleges that Defendants were pressured by the
Obama Administration’s Department of Education into following the Title IX investigative and
adjudicatory process mandated by the 2011 Dear Colleague Letter regardless of due process
considerations and that Purdue’s mishandling of Plaintiff’s case was wrongfully affected by federal
pressure. Id. at ¶ 129. Plaintiff further alleges that the totality of circumstances establishes that
Defendant Purdue has demonstrated a pattern of inherent and systematic gender bias and
discrimination against male students accused of misconduct. Id. at ¶ 131. Upon information and
belief, Plaintiff alleges that all students who have been suspended or expelled from Defendant
Purdue for sexual misconduct have been male, id. at ¶132, and that male respondents, and
particularly male athletes and male ROTC members, in sexual misconduct cases at Purdue are
discriminated against solely on the basis of sex, id. at ¶ 133. In the Prayer for Relief, Plaintiff asks
for a judgment against Defendant Purdue for money damages for damage to his physical well being,
emotional and psychological damages, damages to reputation, past and future economic losses, loss
of educational and athletic opportunities, and loss of future career prospects. Plaintiff also seeks an
injunction enjoining violations of Title IX in the process of investigating and adjudicating sexual
Counts III and IV allege Indiana state law claims of breach of contract and of estoppel and
reliance, respectively, against Defendant Purdue.
STANDARDS OF REVIEW
A challenge to standing is properly brought under Rule 12(b)(1) for a lack of subject matter
jurisdiction. See Fed. R. Civ. P. 12(b)(1); Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440,
443 (7th Cir. 2009). The party invoking federal jurisdiction bears the burden of establishing that
jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). At the motion to
dismiss stage, unless standing is challenged as a factual matter, the court “must accept as true all
material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff’s
favor.” Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963, 968 (7th Cir. 2016) (quoting Reid
L. v. Ill. State Bd. of Educ., 358 F.3d 511, 515 (7th Cir. 2004)).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint and not the merits of the suit. See Gibson v. City of Chi., 910 F.2d 1510,
1520 (7th Cir. 1990). In ruling on such a motion, the Court accepts as true all of the well-pleaded
facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d
1074, 1082 (7th Cir. 2008). To survive a 12(b)(6) motion to dismiss for failure to state a claim, the
complaint must first comply with Rule 8(a) by providing “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given
“fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009). Second, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
570); see also Tamayo, 526 F.3d at 1082.
Defendants seek dismissal of all of Plaintiff’s claims under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). In response, Plaintiff pursues only his claims for injunctive relief, his § 1983
claims against the individual defendants, and his Title IX claim against Defendant Purdue
University. The Court considers each claim in the Complaint in turn.
A. Prospective Injunctive Relief–Counts I and II
Defendants seek dismissal of Plaintiff’s claims for prospective injunctive relief in Counts
I and II against all Defendants on the basis that Plaintiff lacks standing. To “invoke the jurisdiction
of the federal courts,” a plaintiff “must satisfy the threshhold requirement imposed by Article III of
the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S.
95, 101 (1983). A plaintiff “must demonstrate a ‘personal stake in the outcome’” and an “[a]bstract
injury is not enough.” Id. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). “The plaintiff must
show that he ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result
of the challenged official conduct and the injury or threat of injury must be both ‘real and
immediate,’ not ‘conjectural’ or ‘hypothetical.’” Id. at 101-02 (citing cases). “[A] plaintiff must
demonstrate standing for each form of relief sought. A plaintiff may have standing to pursue
damages but not injunctive relief, for example, depending on the circumstances.” Kenseth v. Dean
Health Plan, 722 F.3d 869, 890 (7th Cir. 2013). Thus, “[t]o have standing for prospective injunctive
relief, a plaintiff must face a real and immediate threat of future injury as opposed to a threat that
is merely conjectural or hypothetical.” Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017)
(internal quotation marks omitted).
Plaintiff’s Complaint asks for injunctive relief related to the claims brought under § 1983 in
Count I and under Title IX in Count II:
- against Defendant Purdue “an injunction enjoining violations of the Fourteenth
Amendment in the process of investigating and adjudicating sexual misconduct
complaints,” (Cmplt., Prayer for Relief, ¶ (i), p. 66);
- against Defendant Purdue “an injunction enjoining violations of . . . Title IX in the
process of investigating and adjudicating sexual misconduct complaints,” (Cmplt.,
Prayer for Relief, ¶ (ii), p. 66).
Although Plaintiff alleges damages as a result of the past enforcement of Purdue’s antiharassment policy against him, neither the prayers for relief nor the remainder of the Complaint seek
injunctive relief with respect to any prospective interaction between Plaintiff himself and any
Defendant, and Plaintiff does not argue so in his response brief. This is fatal to Plaintiff’s claims for
injunctive relief under both § 1983 and Title IX because he has not alleged that he is currently
subject to the policy or that the policy will be applied to him in the future. See Scherr v. Marriott
Int’l, Inc., 703 F.3d 1069, 1074 (7th Cir. 2013) (quoting Lyons, 461 U.S. at 102); see also
Sonnleitner v. York, 304 F.3d 704, 718 (7th Cir. 2002) (finding that the Ex Parte Young exception
to Eleventh Amendment immunity did not apply to the § 1983 claims because, although the plaintiff
alleged a past violation of federal law, he did show an “ongoing” violation of the federal law as to
himself); Ceria M. Travis Acad., Inc. v. Evers, No. 16-CV-593, 2016 WL 4098587, at *5 (E.D. Wis.
July 28, 2016) (citing Sonnleitner, 304 F.3d at 718).
In their motion, Defendants argue that Plaintiff does not allege that he is or will be a student
at Purdue University. (ECF 19, p. 4). In Paragraph 1 of the Complaint, Plaintiff alleges that he is “a
now suspended student at Defendant Purdue University.” (Cmplt. ¶ 1). However, Plaintiff alleges
in Paragraph 4 that he “was a student at Purdue University” and that he “presently lives in Upland,
Indiana, to attend Taylor University.” (ECF 1, ¶ 4). Thus, Defendant is correct that Plaintiff does
not allege that he is currently attending Purdue University or that he intends to do so in the future.
Although Plaintiff alleges that he has been given conditions for reinstatement, he does not allege or
argue that he intends to seek reinstatement. Standing based on Plaintiff’s damages claim stemming
from the alleged past constitutional violation of the policy is insufficient to confer standing for
prospective injunctive relief related to that policy. Plaintiff cites no case in support of his position
that he has standing to bring a claim of injunctive relief under these circumstances.
The Court grants the Motion to Dismiss Plaintiff’s claims for injunctive relief in Counts I
and II and dismisses the claims for injunctive relief without prejudice. See Ramsay v. Mayer, 420
F. App’x 586, 588 (7th Cir. 2011) (recognizing that dismissal is without prejudice when based on
lack of standing (citing Steel Co. v. Citizens for Better Env’t, 523 U.S. 83 (1998))).
B. Claims Against Defendant Daniels in His Individual Capacity
Defendants seek dismissal of all claims against Defendant Mitchell Elias Daniels, Jr. in his
individual capacity on the basis that Plaintiff does not allege any individual or personal participation
by Daniels. Plaintiff responds that he has alleged sufficient facts to state a claim of supervisory
liability against Daniels.
Only one paragraph of the 68-page Complaint names Daniels: “Defendant Mitchell Elias
Daniels, Jr. (“Defendant Daniels”) is the President of Defendant Purdue (‘The Buck Stops Here’
with him), and he may be contacted at a Defendant Purdue e-mail listed on Defendant Purdue’s web
site.” (ECF 1, ¶ 7). Section 1983 “does not allow actions against individuals merely for their
supervisory role of others.” Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000). “For liability,
a supervisor ‘must know about the conduct and facilitate it, approve it, condone it, or turn a blind
eye.’” Zentmyer v. Kendall Cnty., Ill., 220 F.3d 805, 812 (7th Cir. 2000) (emphasis added) (quoting
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)); see also Trentadue v. Redmon, 619 F.3d
648, 652 (7th Cir. 2010) (citing Gentry, 65 F.3d at 561). Plaintiff’s sole allegation that Daniels is
the university president is insufficient to state a claim against Daniels in his individual capacity
under § 1983. As acknowledged by Plaintiff, there is no individual liability under Title IX. And,
Plaintiff has not alleged any contract liability against Daniels in his individual capacity. Therefore,
the Court grants the Motion to Dismiss as to Daniels in his individual capacity and dismisses the
claims against Daniels in his individual capacity with prejudice.
C. Count I–42 U.S.C. § 1983 Claims
In Count I, Plaintiff alleges that Defendants denied him his procedural due process rights
under the Fourteenth Amendment to the United States Constitution in the course of the investigation
and adjudication of Jane Doe’s complaint. (Cmplt. ¶¶ 78,92). More specifically, Plaintiff alleges that
he was deprived of the minimal requirements of procedural fairness because the investigation and
adjudication did not include cross-examination, sworn testimony, a hearing, access for Plaintiff to
see the investigator’s report, production to Plaintiff of the evidence that supported Jane Doe’s
allegations, a presumption of innocence, reasoned consideration of evidence as required by a burden
of proof, or a requirement that evidence be stated in support of conclusions. Id. at ¶ 92.
The Fourteenth Amendment Due Process Clause provides: “No State shall . . . deprive any
person of life, liberty, or property without due process of law.” U.S. Const. Amend. XIV, § 1. Under
42 U.S.C. § 1983, an individual may bring a claim against a person acting under the color of state
law for a violation of this constitutional right. Colbert v. City of Chicago, 851 F.3d 649, 656 (7th
Cir. 2017). Defendants seek dismissal of the § 1983 claims against the Purdue Defendants and the
individual defendants in their official capacities based on Eleventh Amendment immunity and
against the individual Defendants Oliver, Amberger, Rollock, and Sermersheim for failure to state
a claim. The Court considers each argument in turn.
Purdue Defendants and Official Capacity Claims
Defendants move to dismiss the § 1983 claims against Purdue University, Purdue University
Board of Trustees, and its officials in their official capacities because they are not “persons” within
the meaning of the statute. The United States Supreme Court has held that neither a State nor its
officials acting in their official capacities are a “person” under § 1983. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989); see also Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746,
748 (7th Cir. 2005). Defendant Purdue University is a state university. See Ind. Code § 21-23-2, et
seq. Defendant Purdue University Board of Trustees is a body corporate created by the Indiana
legislature to operate Purdue University, and the individual trustees are considered to be acting in
their official capacities as members of the board. See Ind. Code §§ 21-23-2-2, 21-27-7-4, 21-27-7-5;
Wasserman v. Purdue Univ., 431 F. Supp. 2d 911, 915-16 (N.D. Ind. 2006). The Eleventh
Amendment bars § 1983 claims for money damages and injunctive relief against Purdue University
and § 1983 claims for money damages against state officials in their official capacities because the
State is the real party in interest. See Will, 491 U.S. at 71; Council 31 of the Am. Fed’n of State, Cty.
and Mun. Emps., AFL-CIO v. Quinn, 680 F.3d 875, 881-82 (7th Cir. 2012); Peirick v. Ind. Univ.Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 695-96 (7th Cir. 2007) (finding the Board
of Trustees of Indiana University shielded by the Eleventh Amendment); Kashani v. Purdue Univ.,
813 F.2d 843, 846-47 (7th Cir. 1987) (finding Purdue University shielded by the Eleventh
Amendment); Wasserman, 431 F. Supp. 2d at 916 (finding the Purdue University Board of Trustees
shielded by the Eleventh Amendment).
Plaintiff does not disagree in his response brief and, thus, abandons these claims.
Accordingly, the Court grants the Motion to Dismiss the § 1983 claims for both money damages and
injunctive relief against Purdue University and the Purdue University Board of Trustees and the
§1983 claims for money damages against the individual defendants in their official capacities.
Plaintiff is correct that an exception to Eleventh Amendment immunity allows for
prospective injunctive relief claims against individual officials in their official capacities for ongoing
constitutional violations under Ex Parte Young, 209 U.S. 123, 159-60 (1908). See Council 31 of the
Am. Fed. of State, Cnty. and Mun. Emps, AFL-CIO, 680 F.3d at 882; see also Sonnleitner, 304 F.3d
at 717 (quoting Marie O. v. Edgar, 131 F.3d 610, 614-15 (7th Cir. 1997)). However, as set forth in
Part A above, Plaintiff cannot satisfy the Ex Parte Young exception in this case because, although
he alleges a past violation of federal law, he has not alleged an “ongoing” violation of federal law
Defendants Amberger, Oliver, Rollock, and Sermersheim in Their Individual Capacities
The unavailability of a cause of action against Purdue University, the Purdue University
Board of Trustees, and the individual defendants in their official capacities does not by itself
preclude a claim under § 1983 against the individual defendants in their individual capacities for
money damages. See Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012).1 A claim for a violation
of procedural due process under the Fourteenth Amendment requires a two-step analysis: “First, the
court must identify the protected property or liberty interest at stake. Second, it must determine what
process is due under the circumstances.” Charleston v. Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d
769, 772 (7th Cir. 2013) (citing Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003)). In other
words, Plaintiff “must establish that there is (1) a cognizable property [or liberty] interest; (2) a
Defendants note that the prayer for relief in Plaintiff’s Complaint does not seek money damages against the
individual defendants in their individual capacities, as it asks only for “a judgment against Defendant Purdue awarding
John Doe damages.” See (Cmplt., Prayer for Relief, ¶ (i), p. 66). However, throughout the Complaint, Plaintiff alleges
that certain conduct of the individual defendants violates his due process rights; therefore, the Court considers the claims.
deprivation of that interest; and (3) a denial of due process.” Price v. Bd. of Educ. of City of Chi.,
755 F.3d 605, 607 (7th Cir. 2014) (quoting Khan v. Bland, 630 F.3d 519, 527 (7th Cir. 2010)).
Property rights are not created by the Fourteenth Amendment but “stem from an independent
source such as state law—rules or understandings that secure certain benefits and that support claims
of entitlement to those benefits.” Price, 755 F.3d at 607 (internal quotation marks omitted) (quoting
Frey Corp. v. City of Peoria, 735 F.3d 505, 509-10 (7th Cir. 2013) (quoting Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972))). In the Motion to Dismiss, Defendants argue for dismissal
of Plaintiff’s due process claims on the basis that Plaintiff has not alleged an actionable liberty or
property interest. The Court agrees. Plaintiff makes the following allegations regarding his protected
liberty and property interests in Count I:
A person has a protected liberty interest in his good name, reputation,
honor, and integrity, of which he cannot be deprived without due process.
A person has a protected property interest in pursuing his education,
as well as in future educational and employment opportunities and occupational
liberty, of which he cannot be deprived without due process.
John Doe’s constitutionally protected property interest in his
continued enrollment at Defendant Purdue and to be free from arbitrary suspension
and dismissal arises from the policies, courses of conduct, practices and
understandings established by Defendant Purdue.
John Doe’s constitutionally protected property interest further arises
from the express and implied contractual relationship between Defendant Purdue and
It is well established that Fourteenth Amendment due process
protections are required in the higher education disciplinary proceedings.
A person who has been admitted to a university, and who has paid
tuition to that university, has a protected property interest in continuing his education
at that university until he has completed his course of study. The state cannot deprive
a person of this interest without due process.
(Cmplt. ¶¶ 80-85).
Unlike several other courts cited by Plaintiff in his response brief and alluded to in Paragraph
84 of the Complaint, the Seventh Circuit Court of Appeals has held that an individual does not have
a stand-alone property interest in an education at a state university. Charleston, 741 F.3d at 772
(citing Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 601 (7th Cir. 2009); Williams v. Wendler,
530 F.3d 584, 589 (7th Cir. 2008)); see also Preston v. Bd. of Trs. of Chi. State Univ., No. 14 C
3423, 2015 WL 327369, at *7 (N.D. Ill. Jan. 26, 2015) (citing Charleston, 741 F.3d at 772-73). The
Seventh Circuit Court of Appeals reasoned that it cannot be the case “‘that any student who is
suspended from college has suffered a deprivation of constitutional property.’” Charleston, 741 F.3d
at 772 (quoting Williams, 530 F.3d at 589). This is, in part, because to find otherwise “‘would imply
that a student who flunked out would have a right to a trial-type hearing on whether his tests and
papers were graded correctly and a student who was not admitted would have a right to a hearing
on why he was not admitted.’” Id. (same). Notably, the court in Charleston acknowledged that the
First Circuit Court of Appeals has recognized a “general ‘interest in pursuing an education,’
including a university education,” 741 F.3d at 773 (quoting Gorman v. Univ. of R.I., 837 F.2d 7, 12
(1st Cir. 1988)), and that the Sixth Circuit Court of Appeals has held that “the Due Process Clause
is ‘implicated’ by university disciplinary decisions,” id. (quoting Flaim v. Med. Coll. of Ohio, 418
F.3d 629, 633 (6th Cir. 2005)).
The Seventh Circuit Court of Appeals requires that the court “ask whether the student has
shown that he has a legally protected entitlement to his continued education at the university.” Id.
(emphasis in original) (citing Bissessur, 581 F.3d at 601-02). To survive a motion to dismiss, a
plaintiff must specifically allege the existence of an express or implied contract with the university
by being “specific about the source of this implied contract, the exact promises the university made
to the student, and the promises the student made in return.” Id. (citing Bissessur, 581 F.3d at 601,
603-04); see also Marmarchi v. Bd. of Trs. of the Univ. of Ill., No. 17-1939, 2017 WL 5152156, at
*3 (7th Cir. Nov. 7, 2017) (finding that the due process claim could not go forward because the
plaintiff had not alleged any contract terms that the university had violated (citing Charleston, 741
F.3d at 773; Bissessur, 581 F.3d at 603)); Preston, 2015 WL 327369, at *7 (“General references to
a college’s policies are insufficient to identify a property interest.” (citing DiPerna v. The Chi. Sch.
of Prof. Psychology, No. 14-CV-57, 2014 WL 4167491, at *3 (N.D. Ill. Aug. 21, 2014))).
In Charleston, the plaintiff alleged a protected property interest based on the university’s
polices as set out in the Student Disciplinary Policy and the University Statutes, such as “‘Defendant
failed to comply with its own policies and due process protections set forth in its Student
Disciplinary Policy’” “‘by forwarding a complaint of academic dishonesty, i.e., plagiarism to the
[Student Progress Committee] without intermediate review of a Student Discipline Subcommittee’”
and “‘by failing to allow Plaintiff a hearing, to be present and defend himself from the allegations
against him, to confront the witnesses against him or to address any of the evidence presented
against him.’” Charleston, 741 F.3d at 773 (quoting (Cmplt. ¶¶ 33, 34)). The Seventh Circuit Court
of Appeals held that these allegations were insufficient to state a claim for a violation of the
plaintiff’s federally protected due process rights: “We have rejected similar claims of an ‘interest
in contractually-guaranteed university process’ many times.” Id. (citing Park v. Ind. Univ. Sch. of
Dentistry, 692 F.3d 828, 832 (7th Cir. 2012)).2 In Charleston, the court held: “[W]e will be clear
In Park v. Indiana University School of Dentistry, the court noted that the plaintiff did not allege a property
interest in continuing his graduate education, citing Hlavacek v. Boyle, 665 F.3d 823 (7th Cir. 2011). See Park v. Ind.
Univ. Sch. of Dentistry, 692 F.3d 828, 832 (7th Cir. 2012). However, the court in Hlavacek assumed, without deciding,
that the plaintiff had a protectable interest in continuing his graduate education in order to consider the separate issue
once more: a plaintiff does not have a federal constitutional right to state-mandated process.” Id.
(citing Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983) (“Process is not an end in itself . . . . The
State may choose to require procedures . . . but in making that choice the State does not create an
independent substantive right.”); Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993) (“As we
tirelessly but unavailingly remind counsel in this court, a violation of state law (for purposes of this
case the student judicial code may be treated as a state law) is not a denial of due process, even if
the state law confers a procedural right.”)); see also Miller v. Cooper, 116 F. Supp. 3d 919, 928
(W.D. Wis. 2015) (“Stripped to its essence, Miller’s challenge in this case is that he did not receive
the process afforded to UWP’s students before he was dismissed from the orchestra. This is exactly
the type of due process claim that the Seventh Circuit has precluded.” (citing Charleston, 741 F.3d
at 769; Park, 692 F.3d at 832)).
In Williams, which concerned college undergraduate students, the court recognized the
United States Supreme Court holding that a public high school education is a protected property
interest under the due process clause of the Fourteenth Amendment, 530 F.3d at 589 (citing Goss
v. Lopez, 419 U.S. 565 (1975)), but rejected the plaintiff’s claim that any student suspended from
college suffers a deprivation of constitutional property, id. The court explained that to be an
actionable deprivation, there must be proof of an entitlement and that the alleged entitlement in
Williams was the “entitlement not to be suspended without good cause,” which the court held was
a matter of contract, either express or implied. Id. The court noted that the difference between a high
school student and a college student is that the “high school student’s rights will usually be defined
by statute.” Id. The court held that the plaintiff did not allege a contract establishing an entitlement.
of whether the plaintiff had been afforded sufficient process in connection with his dismissal from the dental program,
which the court found he had. Hlavacek, 665 F.3d at 825-26.
Id. at 589-90. Thus, the due process “claim fail[ed] regardless of the adequacy of the procedures.”
Id. at 589. Similarly, in Bissessur, which concerned a college graduate student, the Seventh Circuit
Court of Appeals found that the plaintiff “failed to point to any specific promise that the University
made which established that [the plaintiff] might have had an entitlement to a continuing education,
or any other such entitlement.” 581 F.3d at 602.
In Hess v. Board of Trustees of Southern Illinois University, the plaintiff alleged that he had
a protected property interest in continuing his education created under Illinois common law and by
a contract between himself and the university. 149 F. Supp. 3d 1027, 1031 (S.D. Ill. 2015). The court
concluded, based on Charleston, that the plaintiff had not demonstrated a “legally protected
entitlement to his continued education” at the university. Hess, 149 F. Supp. 3d at 1039. The court
rejected the plaintiff’s reliance on an implied contract and “vague references” to the Code of
Conduct, requiring instead that the student specifically identify the source of the implied contract,
the exact promises made by the university, and the promises he made in return. Id. (quoting
Charleston, 741 F.3d at 773).3
In this case, the allegations within Count I itself are insufficient as Paragraphs 81-83 and 85,
quoted above, contain only general allegations about promises made by Purdue University.
Defendants note that in other places in the Complaint Plaintiff alludes to “various policies” that
The court in Hess v. Board of Trustees of Southern Illinois University then held that, even if the plaintiff had
demonstrated either a property interest through an implied contract or a protectable liberty interest, the university had
provided him with all the process he was due. 149 F. Supp. 3d 1027, 1040 (S.D. Ill. 2015). On appeal, the Seventh
Circuit Court of Appeals did not address whether the plaintiff had a protected property or liberty interest but rather
assumed so in order to consider whether the university’s procedures deprived him of the assumed rights, finding that they
did not. See Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 675 (7th Cir. 2016). Similarly, in Medlock v. Trustees of
Indiana University, in which the student was seeking only expungement of his record and not damages, the Seventh
Circuit Court of Appeals did not address the question of whether the student had a protected property interest but rather
directly addressed the question of whether the student was denied due process, answering the question emphatically in
the negative. 738 F.3d 867, 871 (7th Cir. 2013).
“constitute representations and promises,” see (Cmplt. ¶ 146), specifically Paragraphs 147 and 82.
However, neither paragraph alleges a contractual promise with the requisite specificity. Paragraph
147, contained with the state law claim for estoppel and reliance in Count IV, alleges that Plaintiff
relied on “express and implied promises that Purdue would not tolerate, and John Doe would not
suffer, harassment by fellow students and would not deny John Doe his procedural rights should he
be accused of a violation of Purdue Policies.” Id. at ¶ 147. In Paragraph 82, Plaintiff alleges
generally that his “constitutionally protected property interest in his continued enrollment at
Defendant Purdue and to be free from arbitrary suspension and dismissal arises from the policies,
courses of conduct, practices and understandings established by Defendant Purdue.” Id. at ¶ 82.
Neither paragraph identifies a specific contractual promise other than those relating to Purdue’s
internal procedures, which cannot form the basis of a protected property interest. See Charleston,
741 F.3d at 773. Likewise, Paragraph 85 alleges an interest in completing Plaintiff’s course of study,
but this is nothing more than a state-law breach of contract claim, which cannot form the basis of
his constitutional claim.
In his response brief, Plaintiff does not cite any controlling case law establishing a protected
property or liberty interest in this case. Rather, Plaintiff cites Goss v. Lopez, 419 U.S. 565, 572-76
(1975), which establishes the property interest that secondary public school students have in their
education. See Williams, 530 F.3d at 589 (distinguishing Goss on the basis that it addressed “public
high school education”). Plaintiff then cites cases from outside the Seventh Circuit Court of Appeals
that find that a student’s interest in pursuing a public education falls within the liberty and property
protections of the Fourteenth Amendment. (ECF 28, p. 15 (citing Gorman v. Univ. of R.I., 837 F.2d
7, 12 (1st Cir. 1988); Doe v. Cummins, 662 F. App’x 437, 445 (6th Cir. 2016); W. v. Derby Unified
Sch. Dist. No. 260, 206 F.3d 1358, 1364 (10th Cir. 2000); Davis v. Regis Coll., Inc., 830 P.2d 1098,
1100 (Colo. App. 1991))). Similarly, Plaintiff cites cases from other circuits in which the court finds
that a public university may not suspend or expel a student for alleged sexual misconduct without
due process. (ECF 28, p. 15 (citing Gomes v. Univ. of Maine Sys., 365 F. Supp. 2d 6, 15 (D. Me.
2005; Doe v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 600 (S.D. Ohio 2016))).
In attempting to distinguish Charleston, Plaintiff correctly notes that alleged sexual
misconduct was not at issue in that case; however, Plaintiff incorrectly describes Charleston as
involving a “student who flunked out.” (ECF 28, p. 17). Both Charleston and Williams addressed
student disciplinary actions. In Charleston, the plaintiff was a medical student who was dismissed
from the medical school for unprofessional conduct, specifically based on an allegation that he “had
acted ‘unprofessionally’ while serving as a teaching assistant.” 741 F.3d at 770-71, 771. And, in
Williams, cited by Charleston, the plaintiffs were suspended for hazing another student pledging the
plaintiffs’ sorority. 530 F.3d at 585-86.
In his response brief, Plaintiff acknowledges the holding in Charleston that a plaintiff can
plead a legally protected entitlement by pleading the existence of an express or implied contract,
(ECF 28, p. 17), yet, Plaintiff fails to acknowledge the further requirement that the entitlement be
specifically pled. Id. And, Plaintiff does not identify any specific contract provision creating such
rights; instead, Plaintiff generally references his breach of contract claim in Count III. Id. A careful
reading of Count III demonstrates that it alleges only that Purdue did not follow its own procedures:
139. Defendant Purdue[’s] Policies provide that students are to have a
fair and impartial disciplinary process in which it is the responsibility of the
University to show that a violation has occurred before any sanctions are imposed.
Defendant Purdue breached its contract with John Doe when it failed to conduct a
fair and impartial process, including not holding a hearing. At no time was John Doe
afforded the procedural guarantees that generally accompany a hearing, such as the
right to present witnesses and evidence, confront one’s accuser and cross-examine
and challenge any witnesses against him, all before an impartial and objective
factfinder. Thus, Defendants violated the contract with John Doe when they failed
to afford him a proper hearing on Jane Doe’s accusations against him.
140. Defendant Purdue[’s] Policies provide that the investigation will be
neutral. In this case, however, the investigation was not neutral. Defendant Purdue
failed to conduct an adequate, reliable, and impartial investigation when it conducted
its investigation of Jane Doe’s allegations and subsequent adjudication in a manner
that was biased against John Doe. Further, John Doe was severely prejudiced in
being able to defend himself because he was denied access to the Investigator’s
Report. The quick review of the Investigator’s Report that a Navy ROTC officer
allowed John Doe indicated that it misrepresented John Doe of confessing guilt.
141. The U.S. Department of Education Office for Civil Rights requires
that the excessively low preponderance of the evidence burden of proof be used to
evaluate allegations of sexual misconduct. Though an inadequate standard to protect
the procedural rights of accused students, Defendant Purdue utilizes this standard of
review, as recognized in its Policies. Defendant Purdue violated this provision when
they improperly placed the burden of proof on John Doe to prove that Jane Doe’s
accusations were not true and when it failed to utilize the preponderance of the
evidence standard in fact in reaching its Determination. Defendant Purdue therefore
breached its contract with John Doe when it failed to utilize the requisite
preponderance of the evidence standard.
142. Based on the aforementioned facts and circumstances, Defendant
Purdue breached and violated a covenant of good faith and fair dealing implied in the
agreement(s) with John Doe. Defendant Purdue failed its duty of good faith and fair
dealing when it meted out a disproportionate sanction notwithstanding the flawed
process and lack of evidence in support of Jane Doe’s allegations of sexual
143. John Doe is entitled to recover damages for Defendant CSUP’s[sic]
breach of the express and/or implied contractual obligations described above. As a
direct and proximate result of the above conduct, John Doe sustained tremendous
damages, including, without limitation, emotional distress, loss of educational,
athletic4 and career opportunities, economic injuries and other direct and
(Cmplt. ¶¶ 139-144).
Other than an almost identical allegation of causation in Paragraph 150 in Count IV, there are no other
references in the Complaint to athletic opportunities.
In Paragraph 80 of the Complaint, Plaintiff alleges: “A person has a protected liberty interest
in his good name, reputation, honor, and integrity, of which he cannot be deprived without due
process.” (Cmplt. ¶ 80). In Paul v. Davis, the United States Supreme Court recognized that an
“interest in reputation is simply one of a number which the State may protect against injury by virtue
of its tort law, providing a forum for vindication of those interests by means of damages actions.”
424 U.S. 693, 712 (1976). And, the Court found in that case that, “any harm or injury to that interest,
even where . . . inflicted by an officer of the States, does not result in a deprivation of any ‘liberty’
or ‘property’ recognized by state or federal law.” Id. Now, “[i]t is well-established that an individual
does not have any cognizable liberty interest in his reputation, and therefore mere defamation by the
government does not deprive a person of liberty protected by the Fourteenth Amendment, even when
it causes serious impairment of one’s future employment.” O’Gorman v. City of Chicago, 777 F.3d
885, 891 (7th Cir. 2015) (internal quotation marks omitted) (quoting Mann v. Vogel, 707 F.3d 872,
877 (7th Cir. 2013) (quoting Dupuy v. Samuels, 397 F.3d 493, 503 (7th Cir. 2005)); citing Hojnacki
v. Klein-Acosta, 285 F.3d 544, 548 (7th Cir. 2002); Siegert v. Gilley, 500 U.S. 226, 233-34 (1991)).
“Rather, it is only the alteration of legal status, such as governmental deprivation of a right
previously held, which, combined with the injury resulting from the defamation, justifies the
invocation of procedural safeguards.” Mann, 707 F.3d at 878 (internal quotation marks omitted)
(quoting Paul, 424 U.S. at 708-09); see also Hinkle v. White, 793 F.3d 764, 768 (7th Cir. 2015).
Thus, the relevant inquiry is whether there is “an injury to reputation along with a change in legal
status.” Hinkle, 793 F.3d at 768 (emphasis in original) (quoting Somerset House, Inc. v. Turnock,
900 F.2d 1012, 1015 (7th Cir. 1990)). This is known as the “stigma-plus” test. Mann, 707 F.3d at
878 (citing Schepers v. Comm’r, Ind. Dep’t of Corr., 691 F.3d 909, 914 (7th Cir. 2012)). Here,
without citation to any supporting case law, Plaintiff asserts that a student who has been expelled
or suspended for sexual misconduct has suffered stigma plus. (ECF 28, p. 16). But, he fails to allege
that his suspension altered a previously recognized legal status or right, which is fatal to this claim.
Finally, in Paragraph 81, Plaintiff alleges a property interest in “employment opportunities
and occupational liberty.” Indeed, “[w]hen 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, the government has infringed upon that
individual’s liberty interest to pursue the occupation of his choice.” Hinkle, 793 F.3d at 768 (internal
quotation marks omitted) (quoting Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 617 (7th Cir.
2002) (quoting Townsend v. Vallas, 256 F.3d 661, 669 (7th Cir. 2001))).5 However, as argued by
Defendants in the Motion to Dismiss, Plaintiff has not alleged any effort by Purdue to publicize the
disciplinary determination and one-year suspension, to limit Plaintiff from application for readmission to Purdue or any other university, or to limit him from any employment or occupation.
Plaintiff does not pursue this claim in his response brief. Plaintiff has not stated a claim for a
protected interest in his occupational liberty. See Hess, 149 F. Supp. 3d at 1040 (finding, on
summary judgment, that the plaintiff could not pursue his claim for an alleged liberty interest when
he was expelled from the university for disciplinary reasons with a notation on his transcript because
he did not present evidence that he was denied an employment opportunity because of any statement
made in public by the university); see also Despard v. Bd. of Trs. of Ind. Univ., 1:14-CV-1987, 2015
“We have explained that, when an employee claims that a government employer has infringed his liberty to
pursue the occupation of his choice, the employee must show that (1) he was stigmatized by the defendant's conduct,
(2) the stigmatizing information was publicly disclosed and (3) he suffered a tangible loss of other employment
opportunities as a result of public disclosure.” Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir. 2001) (citing Head
v. Chi. Sch. Reform Bd. of Trs., 225 F.3d 794, 801 (7th Cir. 2000); Strasburger v. Bd. of Educ., Hardin Cnty. Cmty. Unit
Sch. Dist. No. 1, 143 F.3d 351, 356 (7th Cir. 1998); Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1991)).
WL 4946112, at *3 (S.D. Ind. Aug. 18, 2015) (finding that the plaintiff failed to allege a liberty
interest with respect to her good name, reputation, honor, or integrity because the plaintiff did not
allege that her ability to secure employment had been impaired nor had she alleged any change in
Based on the foregoing, Plaintiff has failed to plead a claim based on the denial of due
process based on an actionable property or liberty interest. As a result, the Court need not address
whether the process given was sufficient or whether the individual defendants were entitled to
qualified immunity. The Court grants the Motion to Dismiss the § 1983 claims against the individual
defendants in their individual capacity and dismisses those claims with prejudice.
D. Count II–Title IX
The parties agree that a Title IX claim can only be brought against Defendant Purdue
University and not the individual defendants. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274, 284 (1998) (recognizing that Congress abrogated the “States’ Eleventh Amendment immunity
under Title IX” as to entities receiving federal funds (citing 42 U.S.C. § 2000d-7)). Defendants seek
dismissal of the Title IX claim against Purdue University, arguing that Plaintiff has failed to plead
plausible facts showing that Plaintiff was erroneously disciplined because he is male.
Title IX provides that no person “shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any educational program or
activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a)(1). In this case, Plaintiff alleges
a violation of Title IX on the theory of erroneous outcome, which asserts that “the plaintiff was
innocent and wrongly found to have committed an offense.” Yusuf v. Vassar Coll., 35 F.3d 709, 715
(2d Cir. 1994); see also Doe v. Cummins, 662 F. App’x 437, 452 (6th Cir. 2016); Doe v. Columbia
Coll. Chi., No. 17-CV-748, 2017 WL 4804982, at *8 (N.D. Ill. Oct. 25, 2017); Doe v. Univ. of St.
Thomas, 240 F. Supp. 3d 984, 990 n.1 (D. Minn. 2017).
A plaintiff alleging an “erroneous outcome” claim under Title IX must first “allege particular
facts sufficient to cast some articulable doubt on the accuracy of the outcome of the proceedings”
and then also “allege particular circumstances suggesting that gender bias was a motivating factor
behind the erroneous finding.” Yusuf, 35 F.3d at 715; see also Doe v. Cummins, 662 F. App’x at 452
(citing Yusuf, 35 F.3d at 715); Doe v. Columbia Coll. Chi., 2017 WL 4804982, at *8 (same); Doe
v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 606 (S.D. Ohio 2016) (citing Mallory v. Ohio Univ., 76
F. App’x 634, 638-39 (6th Cir. 2003) (citing Yusuf, 35 F.3d 709)). As for the particular
circumstances suggesting gender bias,
[s]uch allegations might include, inter alia, statements by members of the
disciplinary tribunal, statements by pertinent university officials, or patterns of
decision-making that also tend to show the influence of gender. Of course, some
allegations, such as statements reflecting bias by members of the tribunal, may
suffice both to cast doubt on the accuracy of the disciplinary adjudication and to
relate the error to gender bias.
Yusuf, 35 F.3d at 715; see also Doe v. Cummins, 662 F. App’x at 452 (citing Yusuf, 35 F.3d at 715);
Doe v. Columbia Coll. Chi., 2017 WL 4804982, at *8 (same); Blank v. Knox Coll., No. 14-CV-1386,
2015 WL 328602, at *4 (C.D. Ill. Jan. 26, 2015) (same).
In this case, even though Plaintiff has alleged facts, taken as true, to cast doubt on the
accuracy of the outcome of his disciplinary proceeding, he has failed to allege facts to create a
plausible inference that gender bias caused the alleged erroneous outcome. See, e.g., Doe v. Univ.
of Mass.-Amherst, No. 14-30143, 2015 WL 4306521, at *8 (D. Mass. July 14, 2015) (finding that
the plaintiff had alleged facts sufficient to raise at least some questions about the outcome of his
disciplinary proceeding but that the facts were “insufficient to suggest ‘that the disparate treatment
was because of Plaintiff’s sex’”).
Although Plaintiff attacks the procedural protections afforded him during the disciplinary
process and generally alleges that those procedures demonstrate bias, Plaintiff has not alleged any
specific statements, conduct, or a pattern of decision making suggestive of gender bias at Purdue as
opposed to bias in favor of the victim of sexual assault. See Doe v. Univ. of St. Thomas, 240 F. Supp.
3d at 991 (finding that, as to the alleged unbalanced questioning of the complainant-victim and of
the plaintiff respondent-perpetrator, “‘the mere fact that [p]laintiff is male and [the alleged victim]
is female does not suggest that the disparate treatment was because of [p]laintiff’s sex’” (quoting
Salau v. Denton, 139 F. Supp. 3d 989, 999 (W.D. Mo. 2015)));6 see also Cummins, 662 F. App’x
at 453 (finding that the plaintiff failed to show how the alleged deficiencies in the disciplinary
process are connected to gender bias rather than bias in favor of alleged victims, who can be both
male and female (citing Sahm v. Miami Univ., 110 F. Supp. 3d 774, 778 (S.D. Ohio 2015)); Doe v.
Univ. of Colo., Boulder, 255 F. Supp. 3d 1064, 1075 (D. Colo. May 26, 2017) (cautioning reliance
on the “pro-victim not anti-male” justification but nevertheless finding at the pleading stage that
The court in Salau v. Denton, 139 F. Supp. 3d 989 (W.D. Mo. 2015), quotes Doe v. Columbia University, 101
F. Supp. 371, 371 (S.D.N.Y. Apr. 21, 2015), which was reversed on appeal by the Second Circuit Court of Appeals in
Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), after the opinion in Salau v. Denton was issued.
Nevertheless, the court in Doe v. University of St. Thomas, 240 F. Supp. 3d 984, 992 (D. Minn. 2017), relied
on the decision in Salau v. Denton, including its reliance on the district court decision in Doe v. Columbia University,
even though the appellate decision in Doe v. Columbia University reversing the district court decision had been issued
prior to the decision in Doe v. University of St. Thomas. The court in Doe v. University of St. Thomas then distinguished
its case on the facts from the Second Circuit Court of Appeal’s decision on appeal in Doe v. Columbia University.
Likewise, for the reasons set forth in more detail below in this Opinion, this Court finds more persuasive the
district court’s analysis in Doe v. Columbia University as well as the analyses of the cases relying on the district court
decision in Doe v. Columbia University and finds the instant facts distinguishable from those of Doe v. Columbia
University as analyzed on appeal in that case. For the same reason, Doe v. University of Cincinnati, 173 F. Supp. 3d 586
(S.D. Ohio 2016), remains persuasive authority, even though it relies on Yu v. Vassar College, 97 F. Supp. 3d 448
(S.D.N.Y. 2015), which was issued by a district court within the Second Circuit Court of Appeals prior to the appellate
decision in Doe v. Columbia University.
“one inference necessarily overwhelms another” and that conclusory allegations and allegations
based on “information and belief” were insufficient under Iqbal); Doe v. Coll. of Wooster, 243 F.
Supp. 3d 875, 885 (N.D. Ohio 2017) (finding the allegations insufficient to support an inference of
gender bias); Doe v. W. New England Univ., 228 F. Supp. 3d 154, 187 (D. Mass. 2017) (finding that,
although the plaintiff alleged that the principal Title IX officer and an investigator were biased
against males, the plaintiff had failed to allege particularized facts that would permit a fact finder
to draw a reasonable inference of gender discrimination as a motivating factor behind the
disciplinary decision); Doe v. Baum, 227 F. Supp. 3d 784, 817 (E.D. Mich. 2017) (finding that the
“plaintiff has offered nothing more than an administrative decision by school officials with which
he disagreed, and unelaborated allegations that the decision must have been due to ‘gender bias,’
essentially because he is male, the complainant is female, and the decision was adverse to him”
(quoting Cummins, 662 F. App’x at 452-53)); Doe v. Regents of the Univ. of Cal., No. 2:15-CV2478, 2016 WL 5515711, *5 (C.D. Cal. July 25, 2016) (finding that a court “cannot plausibly infer
. . . that a higher rate of sexual assaults committed by men against women, or filed by women against
men, indicates discriminatory treatment of males accused of sexual assault in the consequent
proceedings”); Doe v. Univ. of Cincinnati, 173 F. Supp. 3d at 606-07 (reasoning that “at worst, UC’s
actions were biased in favor of alleged victims of sexual assault and against students accused of
sexual assault”); Doe v. Univ. of Mass.-Amherst, 2015 WL 4306521, at *8.
In his response brief, Plaintiff asserts that his Complaint pleads “‘specific facts sufficient to
support a plausible inference that the defendant is liable for intentional sex discrimination,’” citing
Paragraphs 42, 43, 51-57, 72, and 115-133 of his Complaint in support. (ECF 28, p. 20) (quoting
Ludlow v. Nw. Univ., 79 F. Supp. 3d 824, 835-36 (N.D. Ill. 2015)).7 Plaintiff alleges that these
paragraphs of the Complaint contain allegations that “the conduct of the case and its outcome were
due to John Doe’s gender” as well as “facts to show that Purdue University would have investigated
or decided the case differently or sanctioned Plaintiff differently if Plaintiff were a different gender.”
(ECF 28, p. 22). The Court considers each of the identified allegations in turn.
First, Plaintiff argues that procedural deficiencies in the disciplinary process demonstrate
bias, referencing Paragraph 42, which alleges:
42. On June 14, 2016, Defendant Dean of Students Sermersheim sent a letter
of that date to John Doe advising him that, after considering the information
provided by John Doe, Jane Doe, the University Investigators and consulting with
the three-member panel from the Advisory Committee on June 6, 2016, “I [Dean
Sermersheim] have made the determination that a preponderance of the
evidence does support a finding that your [John Doe’s] conduct violated the
Anti-Harassment Policy.” (Bold in the original.) This determination was made
without a hearing on the accusations, much less a hearing where sworn testimony
was taken, cross-examination afforded and documentation considered
chronologically. Only an anti-male discriminatory bias presuming the female’s story
to be true can explain Dean Sermersheim’s June 14, 2016 letter.
(Cmplt. ¶ 42). Paragraphs 115-122 within Count II similarly allege procedural deficiencies: failure
to conduct an adequate, reliable, and impartial investigation; denying Plaintiff access to the
Investigator’s Report and the case file as a whole; misrepresentations by the investigators in their
Report that Plaintiff confessed his guilt; the redaction of all names in the case file, which prevented
Plaintiff from knowing who said what; and the failure to provide Plaintiff with the evidence
Notably, the district court in Ludlow twice found that the plaintiff had failed to allege facts sufficient to state
a claim of gender bias. See Ludlow v. Nw. Univ., 79 F. Supp. 3d 824, 835-36 (N.D. Ill. 2015) (Feb. 5, 2015) (interpreting
the allegations of the complaint as a Title IX claim, although not specifically pleaded as such, finding the plaintiff had
not “alleged anything approaching ‘particular circumstances suggesting that gender bias was a motivating factor behind
the erroneous finding,’” and giving the plaintiff an opportunity to file an amended complaint to make the necessary
allegations (quoting Yusuf, 35 F.3d at715)); see also Ludlow v. Nw. Univ., 125 F. Supp. 3d 783, 791-93 (N.D. Ill. 2015)
(Aug. 28, 2015) (holding that the plaintiff failed to state a claim of sex discrimination based on a Title IX erroneous
supporting Jane Doe’s allegations, which affected his ability to prepare his defense. Plaintiff alleges
that this is a victim-centered process in which the male student is presumed guilty and the burden
of proof is placed on the male respondent. Plaintiff questions how the determination could have been
based on a credibility assessment without an adversarial hearing with cross-examination. Id. at ¶¶
115-122. In Paragraph 128, Plaintiff alleges failures with the July 21, 2016 appeal decision when
Rollock did not address the substantive issues raised by Plaintiff in his appeal. Id. at ¶ 128.
Although these facts raise some question about the outcome of the disciplinary proceeding
and a certain informality in the information-gathering process, these facts do not suggest that
Plaintiff was treated differently because of his gender. In fact, in Paragraph 121, Plaintiff alleges that
Purdue has a victim-centered process. Id. at ¶ 121. And, the quotation in Paragraph 42 from Dean
Sermersheim’s letter is simply a statement of her credibility finding. Without more, the alleged
procedural deficiencies and Plaintiff’s disagreement with the credibility determination cannot be a
basis to impute gender bias. See Doe v. Cummins, 662 F. App’x at 452 (citing Sahm, 110 F. Supp.
3d at 778); Doe v. Univ. of St. Thomas, 240 F. Supp. 3d at 991 (“And ‘[d]emonstrating that a
university official is biased in favor of the alleged victims of sexual assault claims, and against the
alleged perpetrators, is not the equivalent of demonstrating bias against male students.’” (quoting
Sahm, 110 F. Supp. 3d at778)); see also Doe v. Univ. of Cincinnati, 173 F. Supp. 3d at 607 (citing
Yu v. Vassar Coll., 97 F. Supp. 3d 448, 460-81 (S.D.N.Y. 2015)).
Next, Paragraph 43 alleges that “Dean Sermersheim’s June 14, 2016 letter went on to state
that Defendant Purdue does not tolerate harassment of any person in the workplace or educational
environment” and then lists the sanctions against Plaintiff. (Cmplt. ¶ 43) (emphasis added). The
wording of this allegation is gender neutral on its face. And, nothing in the four sanctions levied
against Plaintiff mentions gender or suggests gender bias. The Court addresses below Plaintiff’s
allegations of “selective enforcement” related to the sanctions imposed by Dean Sermersheim.
Third, Paragraphs 51-55 allege the following deficiencies in Dean Sermersheim’s numbered
findings: a failure to apply a burden of proof, the absence of a preponderance of the evidence
supporting the finding of a violation by Plaintiff, evidence that should have been considered, the
timing of Jane Doe’s allegations, the lack of documentary support for Jane Doe’s allegations,
Plaintiff’s consistent denial of the allegations, Plaintiff’s written responses and in-person statements
that contradicted Dean Sermersheim’s findings, the texts between Plaintiff and Jane Doe indicating
that no sexual assault had occurred, Plaintiff’s roommate’s corroboration that he did not observe any
sexual assaults, Dean Sermersheim’s failure to mention Plaintiff and Jane Doe’s dating relationship
for three months in Fall 2015 that included consensual sexual intercourse fifteen to twenty times,
the lack of explanation for Dean Sermersheim’s credibility finding, the absence of objective
evidence supporting the credibility finding, and the lack of a hearing with sworn testimony. Plaintiff
further alleges that the sanctions did not take into account his unblemished disciplinary record at
Purdue or his character witnesses. Id. at ¶¶ 51-55. Similarly, in Paragraph 127 within Count II,
Plaintiff criticizes Purdue for allowing Dean Sermersheim to “provide no explanation supporting
her stated credibility judgments for the female Jane Doe and against the male John Doe.” Id. at ¶
127. Plaintiff concludes that “[o]nly an anti-male bias to find for the female complainant and against
the male respondent can explain Defendant Dean Sermersheim’s purported findings concerning the
preponderance of the evidence.” Id. at ¶¶ 54, 127. In Paragraph 54, Plaintiff further alleges that he
“was presumed guilty.” Id. at ¶ 54.
Again, Plaintiff alleges no facts to show that Dean Sermersheim was biased when weighing
Jane Doe’s and Plaintiff’s statements, which included Plaintiff’s written statement as well as his inperson statements to the panel. See id. at ¶¶ 30, 31. To plead facts sufficient to show an erroneous
outcome attributable to intentional sex discrimination, Plaintiff must allege more than disagreement
with how accurately Dean Sermersheim weighed the evidence. Unbiased persons can weigh the
same evidence differently. Plaintiff’s allegation that he was presumed to be guilty is nothing more
than a bare-bones allegation with no factual support. Again, these facts may be victim-biased, but
there is nothing that is specifically gender-biased. Notably, Plaintiff does not specify any facts from
either his own testimony, his written statements, or Jane Doe’s statement to support his argument
that the facts were not properly weighed or to suggest that the evidence “substantially favors” his
version of the events. See Doe v. Columbia Univ., 831 F.3d at 67. Nowhere does Plaintiff allege that
Defendants failed to follow the established procedure or deviated from the Dear Colleague Letter
or the regulations set out by the Department of Education in issuing the written decision. See, e.g.,
Yu, 97 F. Supp. 3d at 471 (noting that neither the Dear Colleague Letter or the Clery Act require a
detailed factual finding in the disciplinary decision and finding that, even if detailed factual findings
were required, the plaintiff pointed to “no evidence suggesting that failure to present such a writing
to [Plaintiff] was motivated by gender bias”).
Fourth, Plaintiff alleges in Paragraph 56 that Defendant Sermersheim had a conflict of
interest because she made both the finding of responsibility as the Title IX Coordinator and imposed
the sanction as Dean of Students. Plaintiff alleges that these roles constitute a conflict of interest
under the Title IX guidance in the Dear Colleague Letter, which provides: “Title IX coordinators
should not have other responsibilities that may create a conflict of interest. For example, serving as
the Title IX coordinator and a disciplinary hearing board member or general counsel may create a
conflict of interest.” (Cmplt. ¶ 57); see also Dear Colleague Letter, Archived Information, United
D e p a r t me n t
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (last visited Nov. 15, 2017).
Plaintiff makes identical allegations in Paragraphs 124 and 125 within Count II.
Again, these allegations by themselves do not demonstrate that Dean Sermersheim acted with
gender bias. The Seventh Circuit Court of Appeals has recognized in the university disciplinary
context that “the combination of investigative and adjudicative functions into a single administrator
does not, in itself demonstrate . . . bias . . . because we presume that administrators are honest and
impartial and, therefore ‘capable of judging a particular controversy fairly on the basis of its own
circumstances.’” Hess v. Bd. of Trs. of S. Ill. Univ., 839 F.3d 668, 675 (7th Cir. 2016) (quoting
Withrow v. Larkin, 421 U.S. 35, 47, 55 (1975)). Thus, without more, the mere fact that Dean
Sermersheim played multiple roles does not demonstrate gender bias. See Doe v. Univ. of St.
Thomas, 240 F. Supp. 3d at 991 (citing Sahm, 110 F. Supp. 3d at 778 (finding that the facts that the
Title IX investigator was also a part-time police officer and a member of the Task Force on the
Prevention of Sexual Assault “do not suggest a gender bias against males so much as against
students accused of sexual assault”)). As discussed below, there are no allegations of any statements
by Dean Sermersheim or other evidence that Dean Sermersheim held a gender bias against men.
Fifth, in Paragraph 72, Plaintiff alleges:
On August 16, 2016, John Doe involuntarily resigned from Navy ROTC, his dream
of serving his country as a Naval officer destroyed. Meanwhile, in August 2016 at
Defendant Purdue, a second OCR investigation was opened, the student newspaper
reported that a new “Sexual Assault Center” was opened on campus and procedures
for adjudicating sexual misconduct cases were amended to permit respondents and
complainants to have access to the investigative report and to submit comments and
additional information to Purdue’s investigator in writing.
(Cmplt. ¶ 72). First, it is unclear what Plaintiff means by a “second OCR investigation” as there is
no allegation of a “first OCR investigation.” Throughout the Complaint, “OCR” is short for the
United States Department of Education Office of Civil Rights, and Plaintiff uses the term
“investigation” to refer to both the campus investigation of Jane Doe’s allegations as well as in
discussing the OCR’s national policies. Second, and more importantly, the allegations in Paragraph
72 are gender and victim neutral. To the extent Plaintiff is attempting to reference the prior policy
of not allowing him to see the investigative report in his case prior to his hearing, the allegation is
no different than the other criticisms of the disciplinary procedures, which by themselves do not
show gender bias.
Sixth, in Paragraph 126, Plaintiff alleges that the “totality of the circumstances” establishes
that Defendants acted based on gender bias in reaching the “erroneous outcome” by crediting false
accusations five months after the occurrences with no supporting documentation, by discrediting
Plaintiff–a male, and by disregarding evidence tending to exculpate Plaintiff, including text
messages. Id. at ¶126. In essence, Plaintiff alleges that Purdue considered all the evidence submitted;
he is dissatisfied with the outcome. Thus, Plaintiff recognizes that the text messages he submitted,
his statements, Jane Doe’s statement, and the interview were all considered. Plaintiff does not allege
the existence of any evidence other than the evidence that Plaintiff himself provided and Jane Doe’s
witness statement. The Complaint alleges that six individuals—Oliver, Amberger, Sermersheim, and
three unnamed panelists—evaluated Plaintiff’s personal credibility based on his own explanations
of his conduct. Id. at ¶¶ 32-40. At a minimum, these alleged facts are consistent with a policy of
evidence-based decision making and do not, in and of themselves without more, suggest gender bias
given the presumption of honesty and impartiality accorded the decision makers.
Seventh, Plaintiff alleges on information and belief that Defendants were pressured by the
Obama Administration’s Department of Education into following the Title IX investigative and
adjudicatory process in the 2011 Dear Colleague Letter, regardless of due process considerations.
(Cmplt. ¶ 130). And, Plaintiff alleges on information and belief that Purdue’s “mishandling” of
Plaintiff’s case was “wrongfully affected by federal pressure” from the federal government. Id.
These “general allegations about public pressure to resolve sexual assault complaints are insufficient
to show that gender bias was the motivating factor in the erroneous result.” Doe v. Columbia Coll.
Chi., 2017 WL 4804982, at *8-9 (citing Doe v. Univ. of Mass.-Amherst, 2015 WL 4306521, at *8;
Doe v. Univ. of Cincinnati, 173 F. Supp. 3d at 606; Doe v. Cummins, 662 F. App’x at 452; Yu, 97
F. Supp. 3d at 474-75; Doe v. Univ. of Colo., No. 16-CV-1789, 2017 WL 2311209, at *11); see also
Cummins, 662 F. App’x at 453; Doe v. Univ. of Colo., Boulder, 255 F. Supp. 3d at 1078; Doe v.
Univ. of St. Thomas, 240 F. Supp. 3d at 990-91. Like in Cummins, Plaintiff alleges no specific facts
showing that Purdue or any decision makers in his disciplinary proceedings were pressured by the
federal government or faced public criticism for their handling of Title IX investigations prior to
Plaintiff’s proceedings. See 662 F. App’x at 453.
Plaintiff contends that Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), provides
support for these allegations of federal pressure. But the plaintiff in Columbia University alleged
specific facts to support his claim that federal government pressure led to gender bias in the
enforcement proceedings. Specifically, in the weeks prior to the plaintiff’s hearing, Columbia
University had been criticized by the student body and the public media for its handling of sexual
assault investigations and for turning a “blind eye to female students’ charges of sexual assaults by
male students.” Id. at 56, 57-58. As a result of the public criticism, the university president held a
campus-wide town hall meeting for students to discuss the issue with the dean. Id. In addition, the
plaintiff alleged that the Title IX investigator herself had been subject to public criticism in the
weeks prior to the plaintiff’s hearing. Id. at 58-59. Applying what appears to be a lower pleading
standard, the Second Circuit Court of Appeals found these facts sufficient to infer gender bias based
on pressure by the federal government to avoid Title IX liability, reversing the district court
decision. Id. at 56, 57-59.8 Plaintiff in this case alleges no such additional facts. See, e.g., Austin v.
Univ. of Oregon, 205 F. Supp. 3d 1214, 1226 (D. Ore. 2016) (declining “to extend the Second
Circuit Court of Appeals reasoning because Plaintiffs make no similar allegations of an atmosphere
of scrutiny, and even had they done so, there remains no plausible inference that a university’s
aggressive response to allegations of sexual misconduct is evidence of gender discrimination” (citing
Doe v. Regents of the Univ. of Cal., 2016 WL 5515711, at *7)).
Eighth, Plaintiff attempts to demonstrate a pattern of gender bias by alleging that the totality
of the circumstances establishes that Purdue has “demonstrated a patter of inherent and systematic
gender bias and discrimination against male students accused of misconduct.” Id. at ¶ 131. Plaintiff
alleges that, “on information and belief,” “all students that have been suspended or expelled from
Defendant Purdue for sexual misconduct have been male.” Id. at ¶ 132. And, “[m]ale respondents,
and particularly male athletes and male ROTC members, in sexual misconduct cases at Defendant
The court in Doe v. University of St. Thomas, also noted that in Doe v. Columbia University, 831 F.3d 46 (2nd
Cir. 2016), the Second Circuit Court of Appeals appeared to apply a more lenient standard of review, which the Sixth
Circuit Court of Appeals declined to apply in Doe v. Cummins, 662 F. App’x 443, 451-54 (6th Cir. 2016). See Doe v.
Univ. of St. Thomas, 240 F. Supp. 3d at 992 n. 4. Likewise, the court in Doe v. University of Colorado, Boulder,
describes the Second Circuit Court of Appeals as applying a “relatively low pleading standard” in Doe v. Columbia
University. See Doe v. Univ. of Colo., Boulder, 255 F. Supp. 3d at 1075.
Purdue are discriminated against solely on the basis of sex. They are invariably found guilty,
regardless of the evidence, or lack thereof.” Id. at ¶ 133. None of these allegations offer statistics
or facts to support a pattern of gender discrimination; again, even if all the respondents were male
and all were punished, without more, this only alleges victim bias, and not gender bias.
Even taking as true Plaintiff’s allegation that Purdue personnel took steps to ensure that
harassment allegations were forwarded and not suppressed, that allegation only speaks to the
institution’s commitment to enforce its rules and does not equate to bias against male students, even
if the accused students are generally male. See Cummins, 662 F. App’x at 453 (noting the plaintiff’s
failure “to eliminate the most obvious reasons for the disparity between male and female
respondents in UC sexual-misconduct cases: ‘(1) [the university] has only received complaints of
male-on-female sexual assault, and (2) males are less likely than females to report sexual assaults’”
(quoting Doe v. Univ. of Cincinnati, 173 F. Supp. 3d at 607-08); King v. DePauw Univ., No. 15-CV70, 2014 WL 4197507, at *10 (S.D. Ind. Aug. 22, 2014))). There is no inference to draw in
Plaintiff’s favor when “‘the majority of accusers of sexual assault are female and the majority of the
accused are male.’” Doe v. Univ. of Colo., Boulder, 255 F. Supp. 3d at 1075 (quoting Austin, 205
F. Supp. 3d at1225). Likewise, Purdue “‘is not responsible for the gender makeup of those who are
accused by other students of sexual misconduct.’” Id. at 1078 (quoting King, 2014 WL 4197507,
at *10). Plaintiff has not offered evidence of biased decision making or patterns of decision making
that tend to show the influence of gender. See Baum, 227 F. Supp. 3d at 819-20; see also Doe v. W.
New England Univ., 228 F. Supp. 3d at 189. The Sixth Circuit Court of Appeals has noted that “‘one
case by an individual who was subjectively dissatisfied with the result [of a disciplinary proceeding]
does not constitute a pattern of decisionmaking.’” Sahm, 110 F. Supp. 3d at 779 (quoting Mallory,
76 F. App’x at 640). Thus, none of the allegations in the Complaint identified by Plaintiff support
his claim of gender bias.
In contrast with the instant case, cases in which the court finds that the plaintiff has stated
a claim for erroneous outcome under Title IX are those in which the plaintiff identifies specific facts
or comments by university officials that are indicative of gender bias. See Doe v. Columbia Coll.
Chi., 2017 WL 4804982, at *9 (gathering cases Doe v. Brown Univ., 166 F. Supp. 3d 177, 189
(D.R.I. 2016) (finding that the plaintiff made “specific allegations related to gender bias as opposed
to bias against students accused of sexual assault”); Doe v. Washington & Lee Univ., No. 6:14-CV52, 2015 WL 4647996, at *10 (W.D. Va. Aug. 5, 2015); Doe v. Univ. of Chi., No. 16 C 08298, 2017
WL 4163960, at *5 (N.D. Ill. Sept. 20, 2017); Prasad v. Cornell Univ., No. 5:15-CV-322, 2016 WL
3212079, at *17 (N.D.N.Y. Feb. 24, 2016)); see also Doe v. Columbia Univ., 831 F.3d 46 (2d Cir.
2016); Doe v. Lynn Univ., 235 F. Supp. 3d 1336, 1339 (S.D. Fla. 2017); Doe v. The Trs. of the Univ.
of Penn., No. 16-5088, 2017 WL 4049033, at *15-16, — F. Supp. 3d — , — (E.D. Penn. Sept. 13,
2017); Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 766, 768 (D. Md. 2015); Wells v. Xavier Univ.,
7 F. Supp. 3d 746, 751 (S.D. Ohio 2014).
Contrary to Plaintiff’s assertion, Plaintiff does not allege any facts similar to those found
sufficient in five cases that he string cites without analysis: Doe v. Columbia University, Yusuf v.
Vassar College, Doe v. Washington and Lee University, Prasad v. Cornell University, and Neal v.
Colorado State University-Pueblo. The Court considers each case in turn. First, as discussed above,
in Doe v. Columbia University, the plaintiff made specific factual allegations showing public
pressure on the decision-makers. 831 F.3d at 56. In addition, the court reasoned that, “[w]hen the
evidence substantially favors one party’s version of a disputed matter, but an evaluator forms a
conclusion in favor of the other side (without an apparent reason based in the evidence), it is
plausible to infer (although by no means necessarily correct) that the evaluator has been influenced
by bias.” Id. at 57. The court found that, although the evidence of “bias” by itself did not
“necessarily relate to bias with respect to sex,” when those facts were combined with the public
criticism of the university and the decision maker, “it is entirely plausible that the University’s
decision-makers and its investigator were motivated to favor the accusing female over the accused
male, so as to protect themselves and the University from accusations that they had failed to protect
female students from sexual assault.” Id. Although Plaintiff alleges his version of the events, he has
not identified factual evidence that “substantially favors” his version of the events. And, Plaintiff
does not allege any instances of public criticism. Thus, Columbia University is not persuasive in this
Second, in Yusuf, the plaintiff alleged “that males accused of sexual harassment at Vassar
are ‘historically and systematically’ and ‘invariable found guilty, regardless of the evidence, or lack
thereof’” with no factual support for this assertion. 35 F.3d at 716. What were essentially conclusory
allegations were sufficient in Yusuf because the decision was issued in 1994, long before the modern
pleading standard under Iqbal and Twombly. Although the standard for an erroneous outcome claim
set forth in Yusuf is widely cited, a “majority of cases . . . have held that Yusuf-like pleading of the
gender bias component no longer passes muster, and that the various plaintiffs’ allegations largely
tend to show, if anything, pro-victim bias, which does not equate to anti-male bias.” Doe v. Univ.
of Colo., Boulder, 255 F. Supp. 3d at 1074 (citing Doe v. Baum, 227 F. Supp. 3d at 817-20; Austin,
205 F. Supp. 3d at 1222-27; Doe v. Regents of the Univ. of Cal., 2016 WL 5515711, at *4-6; Doe
v. Univ. of Cincinnati, 173 F. Supp. 3d at 606-08; Marshall v. Ohio Univ., 2:15-CV-775, 2015 WL
7254213, at *5-8 (S.D. Ohio Nov. 17, 2015); Ludlow v. Nw. Univ., 125 F. Supp. 3d 783, 791-93
(N.D. Ill. 2015); Doe v. Univ. of Mass.-Amherst, 2015 WL 4306521, at *6-9; Sahm, 110 F. Supp.
3d at 777-80; Yu, 97 F. Supp. 3d at 461-81).
Third, in Doe v. Washington and Lee University, No. 6:14-CV-52, 2015 WL 4647996, at *10
(W.D. Va. 2015), the court first found that the plaintiff pleaded sufficient facts to cast doubt on the
accuracy of the outcome reached. Recognizing that the alleged flaws in the disciplinary proceedings
in and of themselves are not evidence of gender bias, the court nevertheless found that, given the
“totality of the circumstances,” the plaintiff plausibly established a causal link between his expulsion
and gender bias. Id. The circumstances included a presentation by an influential Title IX officer who
introduced and endorsed an article titled, “Is it Possible that There is Something in Between
Consensual Sex and Rape... and That It Happens to Almost Every Girl Out There?” Id. The article
proposed that “sexual assault occurs whenever a women has consensual sex with a man and regrets
it because she had internal reservations that she did not outwardly express.” Id. The circumstances
of the article were factually similar to those of the harassment complaint in that case. In addition,
the plaintiff alleged that the university president’s letter announcing the appointment of the Title IX
officer “prominently mentioned the fact that many universities were currently under investigation
for violating Title IX.” Id. at *8. This is factually distinguishable from the instant lawsuit given that
Plaintiff offers no statements, conduct, or activity by Dean Sermersheim or anyone else involved
in the disciplinary process that suggests gender bias or any such communication or statement from
Purdue (through its president or otherwise).
Fourth, in Prasad v. Cornell University, 5:15-CV-322, 2016 WL 3212079, at *16-17
(N.D.N.Y. Feb. 24, 2016), the plaintiff alleged facts demonstrating compromised evidence and the
complicity of the university. In contrast, in the instant case, there are no such allegations.
Fifth, in Neal v. Colorado State University-Pueblo, the plaintiff alleged additional facts to
show that bias was because of gender. 16-CV-873, 2017 WL 633045, at *9 (D. Colo. Feb. 16, 2017).
The court found that a disproportionate effect on males is not enough but declined to resolve
whether general allegations that male respondents are always found guilty or that the respondent was
used by his university to placate the DOE because, in Neal, the plaintiff had alleged “statements by
the CSU-Pueblo investigator that amply support that gender bias infected the proceeding.” Id. at *13
(listing cases finding that those general allegations were insufficient). The plaintiff alleged various
statements of the investigator demonstrating prejudice against male athletes. Id. Plaintiff in this case
makes no such allegations.
Finally, in his response brief, Plaintiff asserts that, under Title IX, he is alleging both an
“erroneous outcome” claim as well as a “severity of penalty/selective initiation” claim, citing
Paragraphs 115, 116, and 129 of his Complaint, and that he “expressly relies upon both categories.”
(ECF 28, p. 24). In Paragraph 115, Plaintiff makes the legal statement that challenges to university
disciplinary proceedings for sex discrimination fall into two categories—“erroneous outcome” cases
and “severity of penalty/selective initiation” cases. (Cmplt. ¶115). In the following paragraph,
Plaintiff alleges that “[a]n ‘erroneous outcome’ occurred in this case because John Doe was innocent
and wrongly found to have committed sexual assault and gender bias was a motivating factor.”
(Cmplt.¶ 116). There is no similar paragraph alleging that this is a “severity of penalty/selective
initiation” case, which is referred to in the case law as a “selective enforcement” claim. See Yusuf,
35 F.3d at 715. Rather, the allegations in Paragraph 129 regarding the severity of Plaintiff’s
punishment appear to support the allegations of gender bias in support of the erroneous outcome
Nevertheless, even if Plaintiff is alleging a “selective enforcement” claim, he has not alleged
facts to support such a claim and offers no such facts in support thereof in his response brief. A
“selective enforcement” claim is based on the premise that, “regardless of the student’s guilt or
innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by
the student’s gender.” Id.; see also Prasad, 2016 WL 3212079, at *18. In this case, the proceeding
was initiated by Jane Doe; thus, there can be no selective enforcement based on the initiation of the
proceeding. As for the severity of the penalty, “[c]ourts have interpreted that standard to require a
plaintiff to ‘allege particular circumstances suggesting a meaningful inconsistency in punishment
and particular circumstances suggesting that gender bias was a motivating factor behind the
inconsistency.’” Prasad, 2016 WL 3212079, at *18 (quoting Doe v. Columbia, 101 F. Supp. at 374,
rev’d on other grounds, 831 F.3d 46 (2016)). In other words, to prevail on a “selective enforcement”
claim, the plaintiff must show that a similarly-situated member of the opposite sex was treated more
favorably than the plaintiff due to his or her gender. See Cummins, 662 F. App’x 452 (citing
Mallory, 76 F. App’x at 641; Marshall, 2015 WL 7254213, at *6); Yusuf, 35 F.3d at 715; see also
Doe v. Columbia, 101 F. Supp. at 374 (collecting cases). Plaintiff has not alleged that a similarlysituated female was treated more favorably because of her gender.
Accordingly, because Plaintiff has failed to show any causal connection between the adverse
outcome of his disciplinary proceedings and gender bias, the Court grants the Motion to Dismiss
Plaintiff’s Title IX claim and dismisses the claim with prejudice.
E. State Law Claims
Defendants move to dismiss Plaintiff’s state law claims against Defendant Purdue University
in Counts III and IV on the basis that they are barred by the Eleventh Amendment. In his response
brief, Plaintiff concedes that his state law claims are barred if the Eleventh Amendment immunity
is not waived, which it is not. See Vance v. Ball State Univ., 1:09-CV-1501, 2012 WL 29148, at *2
(S.D. Ind. Jan. 5, 2012) (citing Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 542 (2002)).
Accordingly, the Court grants the Motion to Dismiss Counts III and IV of the Complaint and
dismisses these claims without prejudice for lack of subject matter jurisdiction.
Based on the foregoing, the Court hereby GRANTS Defendants’ Motion to Dismiss
Plaintiff’s Complaint [DE 18] as to all counts. The Court (1) dismisses without prejudice the claims
for injunctive relief in Counts I and II; (2) dismisses without prejudice the state law contract claims
in Counts III and IV; (3) dismisses without prejudice all § 1983 claims against Defendants Purdue
University, the Purdue University Board of Trustees, and the individual defendants in their official
capacities; (4) dismisses with prejudice all claims against Defendant Daniels in his individual
capacity; (5) dismisses with prejudice the § 1983 damages claims against the individual defendants
in their individual capacities for failure to state a claim; and (6) dismisses with prejudice the Title
IX claims in Count II for failure to state a claim.
SO ORDERED this 15th day of November, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?