Doe et al v. Cummins et al

Filing 16

ORDER granting 11 Defendants' Motion to Dismiss for Failure to State a Claim. Signed by Judge Sandra S Beckwith on 3/23/16. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
John Doe I and John Doe II,
Plaintiffs,
vs.
University of Cincinnati, et al.,

Defendants.

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) Case No. 1:15-CV-681
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ORDER

This matter is before the Court on the motion to dismiss filed by Defendants
University of Cincinnati, Daniel Cummins, Denine M. Rocco, and Debra Merchant. Doc.
No. 11. For the reasons that follow, Defendants’ motion to dismiss is well-taken and is
GRANTED.
I. Background
Plaintiffs John Doe I and John Doe II were charged in separate incidents with
violating the University of Cincinnati’s (“UC”) Student Code of Conduct by sexually
assaulting a female student. After hearings before the Administrative Review Committee
(“ARC”), Doe I and Doe II were found “responsible” for the charged violation. Doe I
received a three-year suspension but ultimately transferred to another educational
institution. Doe II was placed on disciplinary probation and banned from several buildings
on campus for a one-year period. Doe II was also required to submit a seven-page
research paper. Doe II, however, was allowed to remain enrolled in school; he completed
his post-graduate degree and has graduated from UC.
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Doe I and Doe II claim that the ARC hearing procedures were grossly inadequate
to protect their right to due process. Doe I and Doe II also allege that where claims of
sexual assault are concerned, the ARC hearing procedures are skewed in favor of the
female complainant and against the male respondent with the purpose of producing
outcomes allegedly favored by the U.S. Department of Education so as to preserve UC’s
federal funding. Doe I and Doe II allege, therefore, that Defendants have violated their right
to due process and have discriminated against them on the basis of gender in violation of
Title IX of the Education Amendments Act of 1972.
For purposes of the instant motion to dismiss, the Court accepts the following facts
from the complaint as being true.
A. John Doe I
In March 2014, Doe I was a junior at UC’s Blue Ash campus. On March 9, 2014,
Doe I left a party held near campus with Jane Roe I and Jane Roe II. Doe I went with Roe
I and Roe II to their dormitory room at Daniels Hall. Doe I claims that Roe I and Roe II
were intoxicated and had been smoking marijuana. Roe I claimed that she fell asleep and
awoke to find Doe I attempting to have sexual intercourse with her. Roe I claimed that she
told Doe I “no” and then fled the room. Doe I then allegedly got into bed with Roe II and
had intercourse with her while she was passed out. Doe I denies that he sexually
assaulted Roe I and Roe II.
Doe I claims that Roe I and Roe II gave inconsistent statements about this incident
to UC administrative officials and to the UC Police. For instance, Doe I alleges that Roe
I gave inconsistent statements about whether she had smoked marijuana that night.
Additionally, Roe I told the UC police that she changed clothes in front of Doe I and then
2

Doe I got into bed with her but later gave a statement saying that she fell asleep and awoke
to find Doe I on top of her. Roe II allegedly denied being intoxicated in her complaint to UC
but later stated that she could not remember significant events before she passed out. Roe
II also told the UC Police that she rated her intoxication level as “8 of 10.” Additionally, Roe
II allegedly gave inconsistent statements about whether she passed out before or after Doe
I penetrated her.
Doe I claims that he cooperated with the police investigation and that there was
substantial evidence that exonerated him. For instance, despite Roe I’s claim that she did
not know how Doe I got into her dormitory, and Roe II’s claim that dormitory staff let Doe
I into the building even though he did not have identification, security camera video shows
that Roe I waited while Roe II signed Doe I into the dorm. Additionally, although Roe II said
during the ARC hearing that she had passed out and did not remember walking back to the
dorm because she was “so high and intoxicated,” neither Roe I nor Roe II appear
intoxicated in the surveillance video. Additionally, forensic evidence showed that Roe I and
Roe II sent text messages during the time they supposedly were passed out. In later
messages, they joked about the case. Another female student who was present at the time
denied witnessing any illegal conduct. Doe I believes that rape kits submitted to the crime
lab for analysis support his version of the events.
Doe I alleges that high-placed UC officials tried to interfere with the criminal
investigation. An email from the UC Police Chief to UC’s general counsel expressed
concern that “we are allowed to conduct a thorough and complete investigation without any
appearance of influence.” Complaint ¶ 58(a) (emphasis in original omitted). Doe I also

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alleges that UC detectives became frustrated that the UC’s general counsel was trying to
steer, obstruct, and impede their investigation.
Doe I alleges that Defendant Dan Cummins, who is UC’s Assistant Dean of Students
and Director of the Office of Judicial Affairs, instituted disciplinary proceedings against him
without investigating whether the allegations of sexual assault against him were credible.
Cummins notified Doe I of the charges by letter on March 12, 2014. Cummins and Doe I
had an in-person meeting on March 28, 2014 to discuss the allegations. Doe I denied the
allegations but otherwise exercised his right to remain silent. Cummins asked Doe I to sign
a form stating that he had received the evidence supporting the allegation although he was
not actually provided with any evidence during the meeting.
Cummins scheduled an ARC disciplinary hearing before actually interviewing any
witnesses. Cummins initially scheduled the hearing for April 7, 2014 but later moved it to
May 2, 2014. On April 28, 2014, Cummins issued a written report finding as a “fact” that
Doe I had engaged in sexual activity with Roe I and Roe II without their consent. Doe I
claims that Cummins’s report had a number of significant omissions:
1. It did not include a review of any of the physical evidence obtained by UC police.
2. It did not include Doe I’s statements to the UC police.
3. It did not include a statement from an Ohio University student who witnessed Roe
I and Roe II being “pretty flirtatious” with Doe I and said that Roe I and Roe II
“basically dragged” Doe I back to their dorm.
4. Cummins did not attempt to obtain from the UC Police any evidence that tended
to exonerate him, such as the surveillance tape and text messages.
Doe I claims that UC made no attempt to provide an impartial hearing panel and that
the hearing convened on May 2, 2014 was a “kangaroo court.” Doe I alleges, for instance,
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that prior to the hearing, committee member Carol Tong-Mack had been copied on emails
requesting academic accommodations for Roe I because she “had recently been the victim
of a crime.” Roe I also copied Tong-Mack on an email to another professor in which she
stated that she had been sexually assaulted in her dorm room. Doe I alleges that after
receiving these emails, it was inappropriate for Tong-Mack to remain on the hearing panel.
Doe I claims that Cummins and/or UC denied him of a number of procedural
protections during the ARC hearing:
1. UC never responded to requests from Doe I’s attorney to have the UC police
investigator present at the hearing.
2. UC only provided Doe I a heavily redacted copy of the investigative file.
3. UC did not provide the results of the rape kit analysis or of the SANE
examinations.1
4. Cummins did not allow Doe I to record the hearing.
5. The hearing committee chair would not permit Doe I to impeach a witness, Roe
I’s boyfriend, who lacked firsthand knowledge of the incident.
6. The hearing committee chair did not permit Doe I to show the surveillance video.
7. The hearing committee chair would not accept the UC police report into evidence.
8. The hearing committee chair would not accept the text messages into evidence.
9. The hearing committee chair would not accept the rape kit analysis or the SANE
examinations into evidence.
10. The hearing committee chair refused to ask witnesses written questions
submitted by Doe I.

1

A sexual assault nurse examiner, or SANE, “is a registered nurse that has special training
to conduct sexual assault examinations on children and adults.” McCormick v. Parker, 571
Fed. Appx. 683, 685 n.1 (10th Cir. 2014).
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11. The hearing committee chair refused Doe I’s request to obtain the presence of
the UC police officers.
12. The hearing committee refused to consider a binder of evidence Doe I submitted
on his behalf.
Doe I alleges on information and belief that Cummins orchestrated the hearing committee’s
actions since the hearing committee chair left the room on a number of occasions, stating
that he had to consult with Cummins. The ARC committee found that Doe I violated the
Student Code of Conduct with respect to one of the students. Doe I states that he left
before the conclusion of the hearing regarding the second student since it was clear to him
that he would not be afforded due process.
Less than a week later, UC determined that substantial procedural errors had
occurred during Doe I’s hearing and ordered that a new hearing take place. The new
hearing was held on May 18-19, 2015. While not a “kangaroo court,” Doe I alleges that he
was still denied significant procedural protections during the second hearing:
1. The hearing committee considered Cummins’s alleged biased investigative
report.
2. The hearing committee was never advised that the complainant had the burden
of proof and that Doe I was innocent until proven guilty.
3. The hearing committee refused to ask the complainants a number of written
questions submitted by Doe I designed to highlight inconsistencies in their
statements and to discover the extent of their alcohol and drug use on the night
in question.
4. UC denied Doe I permission to make his own recording of the hearing.
5. UC failed to provide him with the assistance of a university advocate to the same
extent as the complainants.
6. The hearing committee heard “impact statements” from the complainants before
determining whether Doe I was guilty of violating the Student Code of Conduct.
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7. UC failed to provide Doe I with clarification of the rules of evidence that would be
utilized during the hearing.
8. UC failed to provide the hearing committee with information concerning the
academic accommodations extended to the complainants. Doe I contends that
such information might have affected the committee’s assessment of their
credibility.
The hearing committee found Doe I “responsible” for violating the Code of Conduct
with regard to Roe II but “not responsible” for a violation regarding Roe I. The University
Appeal Administrator rejected Doe I’s appeal, including Doe I’s contention that the panel
erroneously assigned the burden of proof and/or failed to afford him the presumption of
innocence. Specifically, the Appeal Administrator wrote, “Neither party has the burden of
proof. Instead, the ARC uses the hearing to investigate what happened and then makes
a finding based on a preponderance of the evidence.” Complaint ¶ 81(b). Defendant
Rocco affirmed this decision. Because the ARC’s decision was affirmed, Doe I now faces
a three-year suspension from UC.
B. John Doe II
Doe II is a former law student at UC. He has graduated from the law school. In
March 2014, Defendant Cummins apparently received a complaint from Jane Roe III that
she had been sexually assaulted by Doe II at an off-campus location. Cummins filed a
report with the UC Police, allegedly against Roe III’s wishes, and then sent Doe II a notice
that he had been accused of violating the Student Code of Conduct. When Doe II
protested that the alleged incident occurred outside of the jurisdictional bounds of the Code
of Conduct - within 2,600 feet of campus - Cummins invoked a provision of the Code in
which UC will assert jurisdiction over incidents outside of the 2,600 foot radius “when the
student, in the university’s sole judgment, poses an obvious threat of serious harm to any
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member of the university community.” Complaint ¶ 87. Doe II’s allegations otherwise are
similar to Doe I’s allegations.
Doe II complains that UC extended accommodations to Roe III and otherwise prejudged his guilt on the complaint by treating her as a victim. For instance, the complaint
notes, Cummins contacted Roe III’s thesis advisor to request accommodations for her
because she “has recently been the victim of behavior that violates our sexual harassment
policy.” Cummins allegedly sent this email before he notified Doe II of the allegations. UC
also provided Roe III with a job at the UC Women’s Center. Additionally, UC banned Doe
II from entering a number of campus buildings based solely on the allegation that he had
violated the Code of Conduct. Finally, Cummins allegedly prepared a report on the alleged
incident without conducting any investigation into the matter and then denied Doe II access
to his report.
Cummins ultimately scheduled Doe II’s ARC hearing for April 22, 2014. Doe II’s
advisor, however, had a conflict with that date but Cummins refused to reschedule the
hearing. As a result, Doe II’s advisor had to leave the hearing early.
Doe II claims that the ARC panel committed a number of other alleged procedural
errors:
1. The panel heard a victim impact statement before determining whether a violation
had occurred.
2. The panel did not apply the definition of consent provided by UC’s Title IX policy.
3. The panel permitted a witness to make legal conclusions, such as that Doe II had
“raped” Roe III and “assaulted” her.
4. Panel members pre-judged the conclusion as indicated by the notes they took
during the hearing.
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5. The panel did not have adequate definitions of “consent” and “intoxication” and
did not provide Doe II an adequate opportunity to prepare for a claim of
nonconsensual sexual contact due to intoxication.
6. The panel permitted the complainant to argue that Doe II did not obtain consent
through each stage of the encounter although the Code of Conduct does not
explicitly impose that requirement.
7. Doe II was not permitted to effectively cross-examine witnesses because
questions had to be submitted in writing and no follow-up was possible.
8. Doe II was not given effective assistance of an attorney or advisor because the
advisor was not permitted to participate in the hearing.
9. The panel relied on unreliable hearsay testimony.
10. Roe III claimed during the hearing that she was too intoxicated to consent but
the panel did not receive any evidence to show that she was “physically
incapacitated such that the person cannot understand the fact, nature, or extent
of the sexual situation.”
The panel found Doe II guilty of violating the Code of Conduct. However, like Doe
I, Doe II’s appeal was sustained and he was granted a new hearing. The second hearing
took place in October 2014. According Doe II, the second hearing was infected with many
if not most of the procedural defects of his first hearing. In addition, however, during her
impact statement, Roe III told Doe II that he was a “rapist” and that he “was going to Hell.”
Roe III then called the proceeding “a joke” and “stormed out of the hearing.” Thus, Doe
II was unable to cross-examine her.
The panel again found Doe II guilty of violating the Student Code of Conduct. He
was not permitted to appeal this decision. As stated above, Doe II was placed on
disciplinary probation and required to complete and submit a seven-page research paper.
Although Doe II has since graduated from UC, he states that he “may” have difficulty

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obtaining employment due to the finding of responsibility. Additionally, Doe II fears that his
disciplinary record may affect his eligibility to become an attorney in other states.
C. Alleged Gender Discrimination
Plaintiffs both allege that UC’s disciplinary system, insofar as it concerns claims of
sexual assault, is rigged against male students accused of sexual misconduct. Plaintiffs
contend that UC’s handling of sexual assault complaints is influenced by a “Dear
Colleagues” letter issued by the Department of Education. According to the complaint, the
Dear Colleagues letter caused colleges and universities to reduce the procedural
protections previously afforded to students accused of sexual misconduct because of an
implicit or explicit threat of a federal investigation into institutions who fail to comply with the
requirements of the letter as well as the loss of federal funding. Additionally, Plaintiffs
allege that the training on sexual assault provided to UC’s faculty and staff causes them
to be biased against males accused of sexual misconduct and predisposes them to finding
males guilty of misconduct. Plaintiffs allege that their allegations are supported by statistics
showing that “it is nearly impossible for a student to be found not responsible.”
II. The Parties and the Claims
A. The Parties
As indicated above, the Plaintiffs are John Doe I and John Doe II. John Doe I was
a junior at UC’s Blue Ash campus but transferred to another institution after he was
suspended from UC. John Doe II was a law student who has graduated from UC since the
imposition of the disciplinary probation.
Defendant University of Cincinnati is a public university created by the Ohio
legislature.
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Defendant Daniel Cummins is UC’s Assistant Dean of Students and Director of the
Office of University Judicial affairs. Cummins is allegedly responsible for administrating the
Student Code of Conduct and Judicial System. Plaintiffs sue Cummins in his official
capacity for declaratory and injunctive relief and in his personal capacity for damages.
Defendant Debra Merchant is UC’s Vice President of Student Affairs. Merchant is
also allegedly responsible for administrating the Student Code of Conduct and Judicial
System. Plaintiffs sue Merchant in her official capacity for declaratory and injunctive relief
and in her personal capacity for damages.
Defendant Denine Rocco is an assistant Vice President and Dean of Students for
UC. Rocco is allegedly responsible for administrating the Student Code of Conduct and
Judicial System. Plaintiffs sue Rocco in her official capacity for declaratory and injunctive
relief and in her personal capacity for damages.
B. The Claims
Count I seeks a declaratory judgment under 42 U.S.C. § 1983 that Defendants
violated Plaintiffs’ right to due process under both the federal and state constitutions with
the procedures employed during their ARC hearings.
Count II is a claim for money damages pursuant to 42 U.S.C. § 1983 against
Defendants Cummins, Merchant, and Rocco in their individual capacities for allegedly
violating Plaintiffs’ right to due process.
Count III seeks a declaratory judgment that UC violated Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681, et seq., because Plaintiffs’ gender was a
motivating factor in the manner in which the allegations against them were investigated and
adjudicated, and in the discipline they received.
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Count IV seeks money damages against UC for its alleged violations of Title IX.
Count V seeks an injunction against Cummins, Merchant, and Rocco in their official
capacities which would prohibit them from imposing or reporting any disciplinary action
taken against Plaintiffs under the Student Code of Conduct.
III. Defendants’ Motion to Dismiss
Defendants now move to dismiss Plaintiffs’ complaint pursuant to Rule 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. Defendants contend that Plaintiffs’ claim
for a declaratory judgment in Count I is barred by Eleventh Amendment sovereign
immunity. Defendants contend that Doe II’s claims in Counts I, III, and V are barred on res
judicata grounds. Defendants argue that Counts I and II fail to state claims for relief
essentially because the complaint indicates that Plaintiffs received all of the process to
which they were entitled. Defendants also argue that the individual defendants are entitled
to qualified immunity as to the claims against them in their individual capacities. Defendants
contend that Plaintiffs’ Title IX claims in Counts III and IV should be dismissed because the
complaint does not allege facts showing that Plaintiffs were discriminated against on the
basis of gender. Finally, Defendants argue that Count V should be dismissed because
injunctive relief is not cognizable as a stand-alone claim.
Defendants’ motion has been fully briefed and is ready for disposition. The Court
will address the issues in the order presented.
A. Eleventh Amendment Sovereign Immunity
The Eleventh Amendment bars suits for money damages against States, arms of
the State, and state employees in their official capacities. Rodgers v. Banks, 344 F.3d 587,
594 (6th Cir. 2003). The Eleventh Amendment also bars suits for declaratory relief against
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the State. McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012). The University
of Cincinnati is a public university, and, therefore, is considered an arm of the State of
Ohio.

Johnson v. University of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000).

Consequently, the Eleventh Amendment bars Plaintiffs’ claim for declaratory relief against
UC and the individual Defendants in their official capacities. See id. The Eleventh
Amendment, however, does not bar Plaintiffs’ claim for declaratory relief against the
individual Defendants in their personal capacities. Id.
Accordingly, to the extent that Count I seeks declaratory relief against UC and the
individual Defendants in their official capacities, Defendants’ motion to dismiss will be
granted. Defendants, however, are not entitled to dismissal of Count I on Eleventh
Amendment grounds to the extent it seeks declaratory relief against the individual
Defendants in their personal capacities.
B. Res Judicata
Doe I and Doe II filed substantially the same complaint with the same causes of
action against UC and Defendant Cummins in the Hamilton County Court of Common
Pleas in January 2015. Doc. No. 11-1. Defendants in that case moved to dismiss Doe II’s
claims under Counts I, III and V on the grounds of mootness because he had graduated
from UC and thus was no longer subject to the Student Code of Conduct. Doc. No. 11-3.
In February 2015, Judge Dinkelacker entered an order granting Defendants’ motion to
dismiss Counts I, III, and V of Doe II’s complaint.

Judge Dinkelacker agreed with

Defendants that Doe II’s graduation from law school mooted his claims and that he
otherwise had only pled speculative future consequences resulting from the disciplinary

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proceedings. Accordingly, Judge Dinkelacker dismissed Counts I, III, and V of Doe II’s
complaint. Doc. No. 11-2.
In their present motion to dismiss, Defendants argue that Judge Dinkelacker’s
dismissal of Doe II’s Counts I, III, V in state court operates as res judicata, and more
specifically, issue preclusion, against the same claims in this case. In opposition, Plaintiff
contends that the parties later entered into a stipulation to dismiss Doe ll’s state court
complaint without prejudice.

See Doc. No. 14, at 22-24 (citing attached Exhibit A

(stipulation of dismissal and judgment entry granting dismissal without prejudice)).2 Then,
confusingly, in their reply brief Defendants agree that Judge Dinkelacker’s entry of
dismissal does not have res judicata effect in this case (Doc. No. 15, at 5), but they then
ask the Court to adopt his reasoning and conclude that Doe II’s claims in Counts I, III, and
V are moot due to his graduation. Id.
Defendants have now apparently waived their res judicata argument. Defendants’
argument in their reply brief that Doe II’s Counts I, III, and V are moot, as opposed to
barred by issue preclusion, is new. A party is generally not permitted to raise new
arguments in its reply brief. Engineering & Mfg. Services, LLC v. Ashton, 387 Fed. Appx.
575, 583 (6th Cir. 2010). On the other hand, federal courts lack subject matter jurisdiction
to adjudicate moot claims, Church of Scientology of Cal. v. United States, 506 U.S. 9, 12

2

The Court notes that Exhibit A submitted by Plaintiffs are state court docket entries
showing dismissal of Doe I’s claims without prejudice. However, review of the state court
docket also reflects entries dismissing Doe II’s claims without prejudice. See
http://www.courtclerk.org/case_summary.asp?sec=history&casenumber=A1406907 (visited
February 11, 2016); Armengau v. Cline, Fed. Appx. 336, 344 (6th Cir. 2001)(court may take
judicial notice of public records in considering a Rule 12(b) motion).
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(1992), and courts may sua sponte raise the question of their own subject matter
jurisdiction. Ford v. Hamilton Inv., Inc., 429 F.3d 255, 257 (6th Cir. 1994).
The Court, however, is not persuaded that Doe II’s graduation from UC renders his
claims in Counts I, III, and V moot. In Yoder v. University of Louisville, 526 Fed. Appx. 537
(6th Cir. 2013), the Court held that the plaintiff’s graduation from nursing school mooted her
claim for injunctive relief in the form of reinstatement to the school. Id. at 543. The Court,
however, went on to consider the plaintiff’s legal claim that the individual defendants
violated her right to due process when they originally dismissed the plaintiff from school for
academic reasons. The Court also considered whether defendants were entitled to
qualified immunity on that claim Id. at 549-50. In other words, implicit in Yoder is the
conclusion that the plaintiff’s graduation from school does not moot a claim for a past due
process violation.
In this case, Doe II is not seeking reinstatement as a form of injunctive relief.
Consequently, there is no question of mootness of his claims in that regard. Expungement
of Doe II’s disciplinary record, which is a claim suggested in his claim for injunctive relief,
would not be moot as a result of his graduation. Flint v. Dennison, 488 F.3d 816, 825 (9th
Cir. 2007). Yoder indicates that Doe II’s graduation does not moot a claim against the
individual defendants for damages for alleged past due process violations. Similarly, Doe
II’s graduation does not moot his Title IX claims for alleged past gender discrimination.
Accordingly, the Court concludes that Doe II’s graduation from UC does not moot
any of his claims.

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C. Rule 12(b)(6) Standard of Review
A motion to dismiss for failure to state a claim operates to test the sufficiency of the
complaint. The court must construe the complaint in the light most favorable to Plaintiff,
and accept as true all well-pleaded factual allegations. See Scheuer v. Rhodes, 416 U.S.
232, 236 (1974); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.
1983). The court need not accept as true legal conclusions or unwarranted factual
inferences. Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998).
The complaint, however, must contain more than labels, conclusions, and formulaic
recitations of the elements of the claim. Sensations, Inc. v. City of Grand Rapids, 526 F.3d
291, 295 (6th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The
factual allegations of the complaint must be sufficient to raise the right to relief above the
speculative level. Id. Nevertheless, the complaint is still only required to contain a short,
plain statement of the claim indicating that the pleader is entitled to relief. Id. (citing
Erickson v. Pardus, 551 U.S. 89, 93 (2007)). Specific facts are not necessary and the
pleader is only required to give fair notice of the claim and the grounds upon which it rests.
Id. To withstand a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted). Mere conclusions, however,
are not entitled to the assumption of truth. Id. at 678-89. A claim is facially plausible if it
contains content which allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id. at 678. Plausibility is not the same as probability,
but the complaint must plead more than a possibility that the defendant has acted

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unlawfully.

Id.

If the complaint pleads conduct which is only consistent with the

defendant’s liability, it fails to state a plausible claim for relief. Id.
D. Alleged Due Process Violations
Defendants argue that Counts I and II fail to state claims for due process violations.
Count I alleges that Defendants violated Plaintiffs’ right to due process in the following
ways:
1. conducting biased investigations, the results of which were provided to ARC
hearing panels.
2. using hearsay evidence in ARC hearings without an effective opportunity for
cross-examination.
3. hearing impact statements from alleged victims before an adjudication of guilt.
4. failure to apply UC’s Title IX policies and legal terms correctly.
5. failure to permit effective cross-examination of witnesses.
6. denial of effective assistance of an attorney or advisor.
7. failure to afford them the presumption of innocence.
8. pre-judging the outcome of their hearings.3
Complaint ¶ 132.
Defendants contend that in the context of student disciplinary actions, due process
only requires notice of the charges, an explanation of the evidence supporting the charges,
3

Regarding this last allegation, the complaint actually states that Defendants violated
Plaintiffs’ right to due process because “An ARC Hearing Panel has never failed to
recommend that a student be found responsible and significant discipline imposed.”
Complaint ¶ 132(h). The Court is unsure how the past results of other students’ disciplinary
hearings can by itself constitute a violation of Plaintiffs’ due process rights. In the context
of the entire complaint, however, the Court interprets this allegation to mean that Plaintiffs
received a hearing in name only and that outcome of their hearings was a foregone
conclusion.
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and an opportunity to respond. Defendants argue that Plaintiffs received these minimum
protections in this case. Additionally, Defendants cite cases indicating that assigning the
burden of proof to the accused student does not violate due process, that students are not
entitled to representation, that students are not entitled to direct cross-examination of
witnesses, that students are not entitled to discovery and other procedural protections
required in criminal proceedings, that Plaintiffs had more than adequate time to prepare for
their hearings, and that Plaintiffs’ mere allegations of bias are insufficient to show that their
hearings were unfair.
Plaintiffs, however, argue that in determining whether they were afforded due
process, it is improper to break down UC’s process into its constituent parts, compare them
to a checklist of procedures, and conclude that they were afforded adequate due process
in their disciplinary proceedings. Plaintiffs contend, rather, that the Court must examine
UC’s process in a holistic manner to determine whether their right to due process was
protected. Plaintiffs argue that on the whole UC’s disciplinary procedures did not provide
them adequate due process.
A student faced with expulsion or other discipline for violating school rules is entitled
to due process before he can be deprived of his interest in continuing his education. There
are, however, no precise parameters for the amount of process the student is due before
the discipline can be imposed. The minimum requirements are that the student “must be
given some kind of notice and afforded some kind of hearing.” Goss v. Lopez, 419 U.S.
565, 579 (1975) (emphasis on original). This generally means that the student must be
provided an explanation of the evidence against him and an opportunity to present his side
of the story. Id. at 581. Beyond that, “[t]he type of notice and hearing will vary and be
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judged for sufficiency based on context in which the dispute arose.” Flaim v. Medical
College of Ohio, 418 F.3d 629, 634 (6th Cir. 2005). It is clear, nevertheless, that schools
are not required to employ procedures used in criminal trials in order to satisfy due process.
Id. at 635, 635 n.1. While Plaintiffs contend that the Court must view the adequacy of UC’s
procedures as a whole, the Court notes for instance that in Flaim the Court of Appeals
addressed the alleged procedural defects in the disciplinary hearing seriatim and then
assessed the benefits the additional procedures would supposedly provide in reducing the
risk of an erroneous expulsion versus the additional burdens it would impose on the school
to provide them. Id. at 643. Moreover, if the case law shows that Plaintiffs were not entitled
to various procedural protections on an individual basis - and it does - then it follows that
Plaintiffs were not denied due process because UC did not utilize some vague admixture
of the missing procedures during their hearings.4
The Court concludes that to the extent that Plaintiffs base their due process claims
on alleged defects in their first hearings, those alleged errors were harmless because their
appeals were sustained and they both received new hearings. Cf. Harper v. Lee, 938 F.2d
104, 105-06 (8th Cir. 1991) (administrative reversal and grant of new disciplinary hearing
preserved inmate’s due process rights and cured any procedural defects in the first
hearing). Accordingly, the Court focuses its due process analysis on Plaintiffs’ second
hearings. It is nevertheless useful to compare the alleged procedural defects of Plaintiffs’
4

For instance, suppose that UC does not permit any cross-examination at all, but does
allow each student to be represented by counsel. Does the addition of counsel offset the
loss of the ability to cross-examine witnesses in Plaintiffs’ due process calculus? What if
UC were to deny cross-examination, but exclude hearsay? Under Plaintiffs’ holistic theory
of procedural due process, there would be almost no way that UC could anticipate whether
its disciplinary hearing procedures comport with due process.
19

first hearings with their second hearings because the absence of allegations that the same
or similar defects occurred during the second hearings suggests that these alleged errors
were not repeated. For instance, Doe I alleges that during his first hearing the ARC panel
would not accept his evidence, such as the surveillance videos, text messages between
Roe I and Roe II, and the rape kit analysis and SANE examinations. Complaint ¶ 71. Doe
I, however, does not allege that the panel would not accept this evidence in his second
hearing. See Complaint ¶ 78. The Court infers, therefore, that Doe I was permitted to
present this evidence at the second hearing.
Plaintiffs allege that UC was biased against them and that the ARC panel members
were pre-disposed to finding them responsible for the alleged misconduct. The complaint
places particular emphasis on pressure allegedly exerted on UC and other universities by
the Department of Education to find students accused of sexual misconduct guilty under
a threat of a federal investigation and the withholding of federal funding. The complaint
also cites training materials that allegedly presume that sexual assault complainants are
truthful and that elevate the rights of the complainants over the due process rights of the
accused. In this way, the complaint suggests, ARC hearing members are inculcated to find
a student accused of sexual misconduct guilty.
School disciplinary boards must of course be impartial, Heyne v. Metropolitan
Nashville Pub. Sch., 655 F.3d 556, 567 (6th Cir. 2011), but they are entitled to a
presumption of honesty and impartiality absent a showing of actual bias. Atria v. Vanderbilt
Univ., 142 Fed. Appx. 246, 256 (6th Cir. 2005). Generally, the alleged bias of the
disciplinary board must be evident from the record and not based on inference and
speculation. Nash v. Auburn Univ., 812 F.2d 655, 665 (11th Cir. 1987). A plaintiff must
20

allege facts sufficient to overcome this presumption, such as statements by board members
or university officials indicating bias or a pattern of decision-making suggesting that gender
was an influence. Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 251 (2nd
Cir. 1995). Thus, for instance, in Gomes v. University of Maine Sys., 365 F. Supp.2d 6, 3132 (D.Me. 2005), the fact that the hearing board chair participated in sexual assault victim
advocacy programs did not demonstrate that she was biased against the plaintiff in his
sexual misconduct disciplinary hearing. As the district court sharply observed in that case,
“There is not exactly a constituency in favor of sexual assault, and it is difficult to imagine
a proper member of the Hearing Committee not firmly against it. It is another matter
altogether to assert that, because someone is against sexual assault, she would be unable
to be a fair and neutral judge as to whether a sexual assault had happened in the first
place.” Id.
Similarly, Plaintiffs’ allegations concerning the sexual assault training provided to UC
staff members and pressure allegedly exerted on universities by the Department of
Education to intensify their response to sexual assault complaints fall short of creating a
reasonable inference that the ARC panels in Plaintiffs’ cases were biased. It should be a
laudable goal for a university to raise the awareness of its faculty and staff to sexual assault
and to increase their sensitivity to the particular problems that victims of sexual violence
experience in coming forward to make complaints. Plaintiffs do not cite any authority for
the repeated implication in their complaint that a university must balance its sexual assault
training with training on the due process rights of the accused in order to avoid a claim that
its disciplinary procedures are biased. Moreover, it is not reasonable to infer that UC has
a practice of railroading students accused of sexual misconduct simply to appease the
21

Department of Education and preserve its federal funding.5

Plaintiffs’ mere belief that

Defendants acted with such ulterior motives6 is insufficient to state a claim for relief. Center
for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 377 (6th Cir. 2011)(“These vague
and conclusory allegations of nefarious intent and motivation by officials at the highest
levels of the federal government are not well-pleaded, and are therefore insufficient to
‘plausibly suggest an entitlement to relief.’”); Moss v. U.S. Secret Serv., 572 F.3d 962, 970
(9th Cir.2009) (“The bald allegation of impermissible motive. . .

standing alone, is

conclusory and is therefore not entitled to an assumption of truth.”). Finally, Plaintiffs’
statistical allegations, discussed further below, do not reasonably reflect a pattern of
decision-making indicative of bias against men.
Plaintiffs next complain that UC permitted the use of hearsay evidence without
providing an opportunity for an effective cross-examination of the witness. There is,
however, no prohibition against the use of hearsay evidence in school disciplinary hearings.
Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 926 (6th Cir. 1988). And, given that
there is no general due process right to cross-examine witnesses in school disciplinary
hearings, Flaim, 418 F.3d at 641, it follows that Defendants in this case did not violate
Plaintiffs due process rights by accepting hearsay evidence without permitting Plaintiffs to
“effectively” cross-examine the witness. It is important to note that Plaintiffs do

5

The Court specifically declines to follow Wells v. Xavier Univ., 7 F. Supp.2d 746 (S.D.
Ohio 2014). In that case, the district court concluded that the mere allegation that the
university allowed a defective hearing to go forward in order to demonstrate to the
Department of Education that it was taking sexual assault complaints seriously stated a
Title IX violation. Id. That decision seems contrary to Twombly and Iqbal’s admonition that
conclusory allegations are insufficient to state a claim for relief.
6

See, e.g., Complaint ¶¶ 34, 35, 111(a)
22

not allege that Defendants prevented them from cross-examining the hearsay witness at
all, they have not indicated in their complaint the nature of the hearsay evidence presented,
and they failed to explain how additional cross-examination of the hearsay witness would
have lowered the risk that they would have been erroneously disciplined.
Plaintiffs next assert that the ARC Panel erred by accepting victim impact statements
before finding that they had violated the Student Code of Conduct. This is essentially an
attack on the type of evidence the panel elected to admit. School disciplinary boards,
however, are not bound by formal rules of evidence or rules of criminal procedure. Flaim,
418 F.3d at 635. Moreover, the Court’s own research has not discovered any cases
indicating that a disciplinary board is restrained from the types of evidence it may consider
or in the order or mode of the presentation of evidence. Thus, in this case, Plaintiffs fail
to state a claim for a due process violation based the ARC Panel’s decision to hear victim
impact statements before adjudicating Plaintiffs responsible for violating the Student Code
of Conduct. Bifurcating the proceedings into different phases, such as a guilt phase and
a punishment phase, adds more layers of complexity, and thus more time and expense,
to the disciplinary process. Plaintiffs’ brief does not explain how a requirement to bifurcate
the procedures, as is implicit in this claim, would reduce the probability that they would
have been erroneously disciplined. Again, school disciplinary proceedings are not required
to adopt all of the formalities of a criminal trial. Id. at 640 (“Full-scale adversarial hearings
in school disciplinary proceedings have never been required by the Due Process
Clause[.]”); Gorman v. University of R.I., 837 F.2d 7, 16 (1st Cir. 1988)(“[O]n review, the
courts ought not to extol form over substance, and impose on educational institutions all
the procedural requirements of a common law criminal trial.”).
23

Plaintiffs next complain that the ARC Panel applied the Student Code of Conduct
improperly. In particular, Plaintiffs contend that the Panel applied the definition of consent
improperly. However, an allegation that the disciplinary board violated its own policies and
procedures does not state a claim for a due process violation. Heyne v. Metropolitan
Nashville Pub. Sch., 655 F.3d 556, 569 (6th Cir. 2011); Webb v. McCullough, 828 F.2d
1151, 1159 (6th Cir. 1987); see also Levitt v. University of Tex. at El Paso, 759 F.2d 1224,
1230 (5th Cir. 1985)(“There is not a violation of due process every time a university or other
government entity violates its own rules.”). Moreover, as a general principle, federal courts
must defer to a state agency’s interpretation of its own rules and regulations absent a
compelling demonstration that it is wrong. Smith v. Babcock, 419 F.3d 257, 260-61 (6th Cir.
1994). In this case, Plaintiffs’ bare allegations that the ARC Panel misinterpreted the
Student Code of Conduct are insufficient to state a due process violation.
Next, Plaintiffs complain that they were denied an effective opportunity to crossexamine witnesses because they had to submit their questions to the ARC Panel chair in
written form and had no opportunity to ask follow-up questions. Inasmuch as students do
not have a general right to cross-examine adverse witnesses in school disciplinary
proceedings, see supra at 22-23, it follows that Plaintiffs’ due process rights were not
violated because they were required to submit written questions to the panel chair. Nash
v. Auburn Univ., 812 F.2d 655, 664 (11th Cir. 1987) (no due process violation where
students were able to submit written questions to hearing officer to ask witness).
Plaintiffs next assert that they were denied effective assistance of an attorney or
advisor. Plaintiffs, however, were entitled to the assistance of an attorney only if the ARC
Panel presented its case through an attorney or the rules governing the hearing were
24

unusually complex. Flaim, 418 F.3d at 640. Plaintiffs do not allege that Defendants
presented their case with the assistance of an attorney or that the rules were unusually
complex. It follows, therefore, that if Plaintiffs were not entitled to the assistance of an
attorney, they were not denied effective assistance of an advocate because their advisors
were not permitted to participate in the hearing.
Plaintiffs next allege that Defendants violated their right to due process by failing to
give them the presumption of innocence and by failing to assign the burden of proving a
violation of the Code of Conduct to the complaining student. The facts alleged in the
complaint show that the ARC Panel functioned as a board of inquiry and determined what
happened based on a preponderance of the evidence without assigning the burden of proof
to either party. Complaint ¶ 31(f). Nevertheless, even assuming that the ARC Panel placed
the burden of proof on Plaintiffs as they claim, they have not stated a due process violation.
As Defendants correctly argue in their brief, “[o]utside the criminal law area, where special
concerns attend, the locus of the burden of persuasion is normally not an issue of federal
constitutional moment.” Lavine v. Milne, 424 U.S. 577, 585 (1976).
Finally, Plaintiffs allege that an ARC Panel has never found a student not
responsible for a violation of the Student Code of Conduct. Plaintiffs, however, have not
explained how the results of prior ARC Panel hearings involving different students can
constitute a violation of their due process rights in their respective hearings. Neither can
the Court conceive of an argument that would lead to such a conclusion. To the extent that
this constitutes a stand-alone claim for a due process violation, it fails as a matter of law.
In summary, Plaintiffs’ complaint indicates that they were charged with violations of
the Student Code of Conduct. They received notice of the charges. Even if Plaintiffs’ first
25

hearings were riddled with procedural errors as they claim, they both appealed and were
granted new hearings. Thus, any due process violations from the first hearings were cured.
During their second hearings, Plaintiffs were able to present their own evidence and version
of the events. They were not permitted assistance of counsel but the ARC Panel did not
utilize an attorney to present its case either. Plaintiffs were able to submit written questions
to witnesses in lieu of direct cross-examination. Thus, Plaintiffs’ complaint, viewed against
the backdrop of existing case law on student disciplinary hearings, shows that they
received all the process that they were due. Although not specifically stated in their
complaint, Plaintiffs clearly believe that they were entitled to all of the procedural
protections of a criminal trial. As already stated, however, universities are not required to
conduct disciplinary proceedings like criminal trials in order to satisfy the Due Process
Clause. Although providing Plaintiffs in this case with additional procedural safeguards
might have been preferable, “[t]he Due Process Clause . . . sets only the floor or lowest
level of procedures acceptable.” Flaim, 418 F.3d at 636. Plaintiffs’ complaint shows that
the procedures used in their disciplinary hearings met the minimum requirements of due
process. Accordingly, Defendants are entitled to dismissal of Plaintiffs’ due process claims.
D. Qualified Immunity
Even if the Court were to conclude that the complaint states claims for violations of
the Due Process Clause, the factual allegations show that the individual Defendants are
entitled to qualified immunity from suit on these claims.
A public official is entitled to qualified immunity and thus shielded from suit under §
1983, for his actions if his conduct does not violate a clearly established statutory or
constitutional right of which a reasonable official would have known. Harlow v. Fitzgerald,
26

457 U.S. 800, 818 (1982). The contours of the right must be sufficiently clear that a
reasonable official would understand that what he was doing violates that right. Anderson
v. Creighton, 483 U.S. 635, 640 (1987). The official, however, is only entitled to qualified
immunity for actions taken in objective good faith within the scope of his duties. Id. at 849
n.34.
Determining a public official’s entitlement to qualified immunity presents a two-step
inquiry. First, the court must determine, judged in the light most favorable to the party
asserting the injury, whether the facts alleged show that the officer’s conduct violated a
constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If no constitutional right
would have been violated on the facts alleged, the inquiry stops and the officer will be
entitled to qualified immunity. Id. If a violation can be made out based on a favorable view
of the pleadings, the court must determine whether the right at stake was clearly
established. Id.
In determining whether a constitutional right is clearly established, the court must
find binding decisions from the U.S. Supreme Court, the Sixth Circuit Court of Appeals, or
finally, decisions of other circuit courts. Walton v. City of Southfield, 995 F.2d 1331, 1336
(6th Cir. 1993) (citing Daugherty v. Campbell, 935 F.2d 780, 784 (6th Cir. 1991)); Summar
v. Bennett, 157 F.3d 1054, 1058 (6th Cir.1998). It is only the extraordinary case that will
require a reviewing court to look beyond Supreme Court and Sixth Circuit decisions.
Walton, 995 F.3d at 1336. The questions of whether the right alleged to have been violated
is clearly established and whether the official reasonably could have believed that his
conduct was consistent with the right the plaintiff claims was violated, are ones of law for
the court. Id. However, if genuine issues of material fact exist as to whether the official
27

committed the acts that would violate a clearly established right, then dismissal of the claim
is improper. Id.; see also Jackson v. Hoylman, 933 F.2d 401, 403 (6th Cir. 1991) (affirming
district court’s denial of summary judgment on the issue of qualified immunity where the
parties’ factual account of the incident differed).
When a defendant raises qualified immunity as a defense, as the Defendants have
done in this case, the plaintiff bears the burden of demonstrating that the defendant is not
entitled to qualified immunity. Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009).
In this case, although as a general rule it was clearly established that students are
entitled to due process before they can be expelled from school, it has not been clearly
established that Plaintiffs were entitled to all of the procedural protections they claim were
missing from their disciplinary hearings. In fact, the case law generally points the other way
- it was clearly established that Plaintiffs were not entitled to the individual procedural
protections they claim.
As Flaim indicates, Plaintiffs were not entitled to the assistance of counsel or an
advisor nor were they entitled to cross-examine witnesses.7 It was not clearly established
that Plaintiffs were entitled to the presumption of innocence. Similarly, it was not clearly
established that Plaintiffs could not be assigned the burden of proof. Lavine, rather, clearly
establishes that assignment of the burden of proof in non-criminal matters does not even
implicate the Constitution. It was not clearly established that school boards cannot rely on
7

Flaim states that due process might require the right to cross-examine a witness
where credibility is an important issue. Although credibility of witnesses was clearly an
issue in Plaintiffs’ disciplinary hearings, no case from the U.S. Supreme Court or the Sixth
Circuit has clearly established the right to cross-examine witnesses even where credibility
is an issue. Flaim, therefore, does not clearly establish the right to cross-examine
witnesses in cases like Plaintiffs’.
28

hearsay evidence in disciplinary hearings. Again, the opposite is true - rules of evidence
do not apply and hearsay is acceptable. It was not clearly established that school boards
are restricted in the modes and order of presentation of evidence. The opposite is again
true - disciplinary boards are not bound by any particular rules of procedure. Considered
as a whole, and in light of the applicable case law, a reasonable public official in the
position of the individual Defendants would not have known that the procedures used in
Plaintiffs’ disciplinary hearings violated their due process rights. Accordingly, Defendants
are entitled to qualified immunity on Plaintiffs’ due process claims.
E. Title IX
Plaintiffs both claim that UC discriminated against them on the basis of gender in
violation of Title IX of the Education Amendments of 1972. Title IX prohibits educational
institutions that receive federal funds from discriminating against students on the basis of
gender. 20 U.S.C. § 1681(a).
Title IX discrimination claims apparently may be sorted into four broad categories:
“erroneous outcome,” “selective enforcement,” “deliberate indifference,” and “archaic
assumptions.” Mallory v. Ohio Univ., 76 Fed. Appx. 634, 638-39 (6th Cir. 2003). In an
“erroneous outcome” case, the plaintiff contends that the outcome of the disciplinary
proceeding was erroneous due to gender bias. Id. at 639. In a “selective enforcement
case,” the plaintiff alleges that the university treated a similarly-situated member of the
opposite sex more favorably than the plaintiff. Id. at 640. In a “deliberate indifference”
case, the plaintiff alleges that a university official who had authority to implement corrective
measures had actual notice of but was deliberately indifferent to misconduct directed at the
plaintiff. Id. A “deliberate indifference” claim seems for the most part to be limited to sexual
29

harassment cases. See id. (stating that the “deliberate indifference” standard applies
where the plaintiff seeks to hold the university liable for sexual harassment); Doe v.
University of the South, 687 F. Supp.2d 744, 757-58 (E.D.Tenn. 2009) (“The ‘deliberate
indifference’ must, at a minimum, cause students to undergo harassment or make them
liable or vulnerable to it.”); but see Wells v. Xavier Univ., 7 F. Supp.3d 746, 751-52 (S.D.
Ohio 2014) (Spiegel, J.) (holding that plaintiff stated a Title IX deliberate indifference claim
based on allegations that university permitted disciplinary hearing to go forward despite
being aware that claims that plaintiff sexually assaulted student were unfounded). Finally,
in an “archaic assumptions” case, the plaintiff contends that the university’s actions were
founded on archaic assumptions about men and women. Sterrett v. Cowan, 85 F. Supp.3d
916, 936 (E.D.Mich. 2015).
Plaintiffs’ complaint touches on all of these Title IX sub-categories, but this appears
principally to be an “erroneous outcome” case. The complaint is dominated with allegations
that UC’s disciplinary process, at least in cases of allegations of sexual misconduct, is
driven by outside influences and training that biases the system against males accused of
sexual assault and in favor of women complainants. But, under any theory, Plaintiffs must
still allege facts sufficient to conclude that UC’s conduct was motivated by gender bias.
Mallory, 76 Fed. Appx. at 638. The Court concludes that Plaintiffs have not alleged facts
showing that the results of their disciplinary proceedings were motivated by gender bias.
Rather, at worst UC’s actions were biased in favor of alleged victims of sexual assault and
against students accused of sexual assault. However, this is not the same as gender bias
because sexual assault victims can be either male or female. Sahm v. Miami Univ., 110
F. Supp.3d 774, 778-79 (S.D. Ohio 2015)(Dlott, J.).
30

First, many of the actions taken by UC which Plaintiffs claim are indicative of gender
bias complied with Title IX guidance issued by the Department of Education. For instance,
Plaintiffs complain that the Jane Roes were given accommodations for their class
schedules and assignments. Plaintiffs also complain that UC barred them from accessing
certain campus buildings during the pendency of their hearings. But, as UC points out,
federal regulations and Title IX guidance indicates that UC was required to take those
interim measures once it received notice of the complaints from the Jane Does. See 34
C.F.R. § 668.46(b)(11)(v); see also United States Department of Education, Questions and
Answers on Title IX and Sexual Violence, at 32 (Apr. 29, 2014) (“The school should notify
the complainant of his or her options to avoid contact with the alleged perpetrator and allow
the complainant to change academic and extracurricular activities or his or her living,
transportation,

dining,

and

working

activities

as

appropriate.”)

available

at

www2.ed.gov/about/offices/list/ocr/ docs/qa-201404-title-ix.pdf (visited Feb. 24, 2106). In
other words, actions taken by UC to comply with guidance to implement Title IX cannot
have been in violation of Title IX.
Second, Plaintiffs’ complaint alleges, in a conclusory fashion, that many of UC’s
alleged due process violations, such as the rule not permitting cross-examination and the
denial of the right to counsel or an advisor, are the result of gender bias. In Yu v. Vassar
College, 97 F. Supp.3d 448, 460-81 (S.D.N.Y. 2015), the district judge thoroughly dissected
most if not all of these kinds of claims and concluded that the plaintiff failed to show how
the alleged procedural errors were motivated by gender bias. Similarly, in this case,
Plaintiffs’ complaint does not, for instance, allege facts linking UC’s decision to limit crossexamination to gender bias. Consequently, the complaint fails to create a reasonable
31

inference that the disciplinary hearing procedures adopted by UC were motivated by a
desire to discriminate against male students.
Third, Plaintiffs’ complaint cites statistics which purport to show that UC
discriminates against males in investigating and imposing discipline for sexual misconduct.
Specifically, according to the complaint, the statistics show that only males have been
investigated and disciplined for sexual misconduct by UC. These statistics, however, fail
to show that UC has a pattern or practice of discriminating against males in sexual
misconduct cases. In order for the statistical evidence to be meaningful, it must eliminate
the most likely non-discriminatory reason for the disparity. Bender v. Hecht’s Dept. Stores,
455 F.3d 612, 622 (6th Cir. 2006).

There are, however, at least two related non-

discriminatory reasons for the disparity between males and females in sexual misconduct
disciplinary cases: 1) UC has only received complaints of male-on-female sexual assault;8
and 2) males are less likely than females to report sexual assaults.9 See Complaint ¶¶ 119,
120. Plaintiffs statistics do not eliminate or attempt to account for these reasons and,
consequently, do not tend to show that UC’s disciplinary system discriminates against
males in cases involving sexual misconduct. Moreover, since recovery under Title IX under

8

Paragraph 119 of the complaint recites that publicly available records show that since
2011, UC has investigated nine cases of sexual assault. In all nine cases, the respondent,
or accused, was male. The gender of complainant, or alleged victim, could only be
identified in eight of the cases. In all eight of those cases, the complainant was female.
Paragraph 120 of the complaint recites national statistics indicating that males are victims
of sexual assault at roughly the same prevalence as women and speculates that UC should
have investigated more cases involving male victims of sexual assault than it actually has.

9

Loree Cook-Daniels, Female Perpetrators and Male Victims of Sexual Assault: Why They
Are So Invisible (2011) (reporting that “male sexual assault victims are far less likely than
female sexual assault victims to report the crime against them”), available for download
through a title search at forge-forward.org (visited Feb. 19, 2016).
32

a disparate impact theory is not permitted, Plaintiffs’ cannot state a claim by alleging that
UC’s otherwise gender-neutral disciplinary procedures disproportionately affect men.
Horner v. Kentucky High Sch. Ath. Ass’n, 206 F.3d 685, 692 (6th Cir. 2000).
Yusaf v. Vassar College, 35 F.3d 709, 716 (2nd Cir. 1994), held that the plaintiff’s
allegation that “males invariably lose when charged with sexual harassment at Vassar” was
sufficient on a Rule 12(b)(6) motion to link the outcome of the plaintiff’s disciplinary hearing
to gender discrimination. Plaintiffs in this case makes the same allegation - males charged
with sexual misconduct invariably are found responsible for the violation. The Court,
however, concludes that this bare allegation is insufficient to plausibly infer that the results
of Plaintiffs’ disciplinary hearings were affected by gender discrimination. First, as already
discussed, the statistical evidence cited by Plaintiff does not eliminate other likely causes
for the disparity between males and females in disciplinary cases. Second, and relatedly,
Yusaf disregarded the issues of sample size and whether the alleged disparity in treatment
between men and women was statistically significant , id., which is contrary to Sixth Circuit
case law. Bender, 455 F.3d at 612; Barnes v. GenCorp, Inc., 896 F.2d 1457, 1466 (6th Cir.
1990). Third, and importantly, as UC correctly points out, Plaintiffs’ own complaint
demonstrates that males are not invariably found responsible when charged with sexual
misconduct violations - the ARC panel acquitted Doe I of the charge related to Jane Roe
I. Accordingly, for all of those reasons, Plaintiffs’ allegation that males invariably lose in
sexual misconduct disciplinary hearings is insufficient to plausibly infer gender
discrimination affected their hearings.
In summary, the facts alleged in the complaint, even accepted as being true, do not
create a plausible inference that UC discriminated against Plaintiffs on the basis of gender
33

in violation of Title IX in their respective disciplinary hearings. Accordingly, UC is entitled
to dismissal of Plaintiffs’ Title IX claims.
Conclusion
For the reasons stated above, Defendants’ motion to dismiss is well-taken and is
GRANTED. The complaint is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED
Date March 23, 2016

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

34