Doe v. Coastal Carolina University
Filing
127
ORDER: While most of Plaintiff's evidence is legally insufficient to create a genuine dispute of material fact, the questions surrounding the review process on appeal narrowly create a genuine dispute for trial. The Court finds that Plaintiff has put forward evidence that would allow a reasonable jury to doubt the outcome of his disciplinary proceedings and find a causal connection between the erroneous outcome and gender bias. Accordingly, Defendant's motion for summary judgment, ECF No. 94 , is DENIED. IT IS SO ORDERED. Signed by Honorable Sherri A Lydon on 3/1/2021. (mcot, )
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
John Doe,
Case No.: 4:18-cv-00268-SAL
Plaintiff,
v.
OPINION AND ORDER
Coastal Carolina University,
Defendant.
This matter is before the Court on Defendant Costal Carolina University’s motion for summary
judgment. [ECF No. 94]. Plaintiff filed a response to the motion, and Defendant replied. [ECF
Nos. 114, 115]. The Court held a hearing on February 25, 2021. [ECF No. 126]. Therefore, the
motion is ripe for ruling. Based on the parties’ filings and their representations at the hearing, the
sole issue before the Court is Plaintiff’s Title IX claim based on an erroneous outcome theory.
BACKGROUND
Plaintiff, John Doe, attended Coastal Carolina University (“the University”) for two
consecutive semesters, beginning in spring 2016 and ending in fall 2016. [ECF No. 114 p.1]. On
August 27, 2016, Plaintiff and Jane Doe attended an off-campus pool party. Id. Plaintiff left the
pool party with Jane Doe and engaged in sex with her. Id at 2. Shortly thereafter, Plaintiff’s
roommate entered Jane Doe’s room and engaged in sex with her. Id. Later that evening, Jane Doe
reported to the University that Plaintiff and his roommate sexually assaulted her. [ECF No. 94-1
p.1].
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Witness testimony about Jane Doe’s level of intoxication at the pool party varied. Id. Plaintiff
contends that he and Jane Doe engaged in consensual sexual intercourse. Id. Jane Doe alleged
she was incapacitated due to alcohol consumption at the time and was therefore unable to consent
to sex. [ECF No. 94-1 p.2]. The University investigated Jane Doe’s allegations. Id. Dean Travis
E. Overton conducted the investigation. Id. Overton interviewed witnesses. Id. Some of the
witnesses corroborated Jane Doe’s allegations while others contradicted them. Id.
On December 6, 2016, the University convened a hearing panel to determine whether Plaintiff
and his roommate violated University policy when they engaged in sex with Jane Doe. Id. After
a hearing, the panel found that Plaintiff’s roommate violated University policy and dismissed him
from the University. Id. The panel found that Plaintiff had not violated University policy. [ECF
No. 114 p.3].
Jane Doe appealed the decision to the proper appellate authority, Ralph J. Byington. Id. Prior
to Byington’s decision, the University’s Title IX coordinator Denise Perez reviewed Jane Doe’s
appeal and the investigation records. Id. She wrote a report opining that Plaintiff violated
University policy. Id. Byington granted Jane Doe’s appeal and ordered a new panel to hear Jane
Doe’s sexual misconduct allegations against the Plaintiff. [ECF No. 94-1 p.3].
The second hearing was held on March 31, 2017. Id. At the time of the second hearing,
Plaintiff was no longer a student at the University. Id. The second hearing panel found Plaintiff
violated University policy when he engaged in sex with Jane Doe and permanently dismissed him
from the University. Id. On January 31, 2018, Plaintiff filed this lawsuit. [ECF No. 1]. Plaintiff
asserted causes of action under Title IX, the Declaratory Judgment Act, and common law. Id. The
University filed a motion to dismiss, which was granted as to the common law causes of action,
leaving only the federal claims. [ECF Nos. 6, 13].
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LEGAL STANDARD
Summary judgment is appropriate if a party “shows that there is no genuine dispute as to any
material fact” and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
“In determining whether a genuine issue has been raised, the court must construe all inferences
and ambiguities in favor of the nonmoving party.” HealthSouth Rehab. Hosp. v. American Nat'l
Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking summary judgment shoulders
the initial burden of demonstrating to the court that there is no genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party makes this threshold demonstration, the non-moving party may not rest
upon mere allegations or denials averred in the pleading, but rather must, by affidavits or other
means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56; see also Celotex Corp., 477 U.S. at 323. A party asserting that a fact is
genuinely disputed must support the assertion by “citing to particular parts of materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).
DISCUSSION
I.
Title IX
Title IX “prohibits federally supported educational institutions from practicing discrimination
on the basis of sex.” Brzonkala v. Va. Polytechnic Inst. & State Univ., 132 F.3d 949, 957 (4th Cir.
1997), rev’d en banc on other grounds, 169 F.3d 820 (4th Cir. 1999). It protects both students and
employees of federally funded educational programs and provides: “[n]o person . . . shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
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discrimination under any education program or activity receiving Federal financial assistance. 20
U.S.C. § 1681(a). At issue here is alleged discrimination against a male student with respect to
University discipline.
While the Fourth Circuit Court of Appeals has not expressly adopted a test for student
disciplinary Title IX claims, it recently recognized and applied the doctrinal tests employed by the
Second Circuit Court of Appeals. See Doe 2 by and through Doe 1 v. Fairfax Cty. Sch. Bd., No.
19-1702, 19-171, 2020 WL 6158091, at *1 (4th Cir. Oct. 21, 2020) (per curiam) (citing Yusuf v.
Vassar College, 35 F.3d 709, 715 (2d Cir. 1994) and noting the parties’ agreement that the plaintiff
in that case could “attempt to recover on his sex discrimination claim under either an erroneous
outcome theory or a selective enforcement theory”). Further, given the lack of binding Fourth
Circuit authority in this area, this Court applied the Second Circuit’s Yusuf framework in
evaluating the Plaintiff’s motion to dismiss.1 See Doe v. Coastal Carolina Univ., 359 F. Supp. 3d
367, 374 (D.S.C. 2019) (citing cases looking to and relying on Yusuf); see also id. at n.3 (noting
“there is no binding authority on this matter”). Thus, the Court sees no reason to depart from
applying the same framework here.
Plaintiff urges the Court to consider the approach in Doe v. Purdue University, 928 F.3d 652
(7th Cir. 2019). In Purdue, then Judge now Justice Amy Coney Barrett articulated a different
standard in evaluating a motion to dismiss. Id. at 667. The court stated:
We see no need to superimpose doctrinal tests on the statute. All of these categories
simply describe ways in which a plaintiff might show that sex was a motivating
factor in a university's decision to discipline a student. We prefer to ask the question
more directly: do the alleged facts, if true, raise a plausible inference that the
university discriminated against John “on the basis of sex”?
Id.
The Honorable R. Bryan Harwell authored the Order granting in part and denying in part Defendant’s
motion to dismiss. The case was subsequently reassigned. [ECF No. 59].
1
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First, this Court is bound by, and takes its cues from, the Fourth Circuit Court of Appeals. See
Jones v. Tyson Foods, Inc., 378 F. Supp. 2d 705, 709 (E.D. Va. 2004), aff'd sub nom. Jones v.
Tyson Foods, 126 F. App'x 106 (4th Cir. 2005) (“[A] district court in a circuit owes obedience to
a decision of the court of appeals in that circuit. . .”). Because the Fourth Circuit recently
recognized and applied the Yusuf framework in Doe 2, the Court finds that—as was the case for
Defendant’s motion to dismiss—the Yusuf framework is the applicable law. Doe 2, 2020 WL
6158091, at *1. Further, the Purdue standard is arguably only a pleading standard. See Doe v.
Univ. of Scis., 961 F.3d 203, 209 (3d Cir. 2020) (describing the Purdue standard as a pleading
standard). At the summary judgment stage, the Court finds that the more robust doctrinal test in
Yusuf is more appropriate.
II.
Erroneous Outcome
Yusuf recognized two theories on which an action related to a college disciplinary matter may
proceed: (1) erroneous outcome and (2) selective enforcement. 35 F.3d at 715–16. Plaintiff bases
his claim on the erroneous outcome theory. See [ECF No. 114 p.5]. An erroneous outcome claim
asserts that “the plaintiff was innocent and wrongly found to have committed an offense.” Id. at
715. “To prevail on an erroneous outcome claim, a plaintiff must (1) assert that he ‘was innocent
and wrongly found to have committed an offense’; (2) establish ‘facts sufficient to cast some
articulable doubt on the accuracy of the outcome of the disciplinary proceeding,’ and (3)
demonstrate ‘particular circumstances suggesting that gender bias was a motivating factor behind
the erroneous finding.’” Doe 2, 2020 WL 6158091, at *1 (citing Yusuf, 35 F.3d at 715). The
parties do not dispute that Plaintiff asserts he was innocent and wrongly found to have committed
an offense. See [ECF No. 94 p.21]. Therefore, to prevail on his erroneous outcome claim, Plaintiff
must (1) establish facts sufficient to cast some articulable doubt on the accuracy of the outcome of
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his disciplinary proceedings and (2) demonstrate particular circumstances suggesting that gender
bias was a motivating factor behind the erroneous finding.
A.
Articulable Doubt
Construing all inferences and ambiguities in favor of the nonmoving party, the Court finds that
Plaintiff has raised genuine issues of material fact that cast articulable doubt on the accuracy of
the outcome of his disciplinary proceedings. A plaintiff establishes articulable doubt by providing
evidence of the procedural flaw, evidentiary weaknesses, strengths of the defense, or “other
reason[s] to doubt the veracity of the charge.” Yusuf, 35 F.3d at 715. The Court need not pass
judgment on Plaintiff’s guilt, only whether a reasonable jury could doubt his guilt. Doe v. Rollins
Coll., No. 618CV1069ORL37LRH, 2020 WL 8409325, at *7 (M.D. Fla. July 13, 2020).
The fact that Plaintiff was found not guilty in his first hearing, viewed in the light most
favorable to the Plaintiff, raises articulable doubt as to his guilt. The University convened a hearing
panel to determine whether Plaintiff violated University policy when he engaged in sex with Jane
Doe. The panel found that he did not. This, for purposes of summary judgment, raises articulable
doubt as to his guilt. The panel heard Jane Doe’s allegations and the University’s findings as set
forth in Dean Overton’s report. Plaintiff, M.V., and Jane Doe presented to the panel. At the
conclusion of the presentations, the panel moved into deliberations. After deliberating, the panel
found Plaintiff was not in violation of University policy. Because the first panel came to this
conclusion, the Court cannot find, as a matter of law, that a reasonable jury could not do the same.
Defendant argues that there is a mountain of evidence to support Plaintiff’s guilt. [ECF No.
115 p.5]. However, this mountain of evidence did not convince the first panel that Plaintiff
violated university policy. Despite the evidence presented, the first panel doubted Plaintiff’s guilt.
Defendant also argues that the inconsistent outcomes of the first and second hearings are not
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surprising and can be explained. Id. at 7. Defendant offers many persuasive reasons that the two
hearings may have resulted in different outcomes. Id. The Court agrees that the nature of sexual
assault cases makes them particularly susceptible to different outcomes. Sexual assault cases can
become credibility contests, and this means that reasonable finders of fact could come to different
conclusions. For this very reason, just as the first panel did, a reasonable jury might doubt
Plaintiff’s guilt. This showing is sufficient to raise genuine issues of material fact that cast
articulable doubt on the outcome of Plaintiff’s disciplinary proceeding.2
B.
Gender Bias
Viewing the facts in the light most favorable to Plaintiff, the Court finds that he has raised
genuine issues of material fact regarding a causal connection between the claimed erroneous
outcome and gender bias. “Bias can be shown through evidence such as statements by members
of the disciplinary tribunal, statements by pertinent university officials, or patterns of decisionmaking that also tend to show the influence of gender.” Doe v. Rollins Coll., 2020 WL 8409325,
at *9 (citing Yusuf, 35 F.3d at 715). In support of his position that anti-male bias animated the
proceedings, Doe points to the following: (1) Maxient3 entries in which University officials
communicated with Jane Doe and her mom discussing “The Hunting Grounds”; (2) different
treatment of Plaintiff versus Jane Doe by student affairs with supportive measures; (3) the Student
Conduct panel member’s “improper discussion” with Jane Doe and “subsequent admonition” from
the board chair; (4) “making up an out of process review on appeal that benefited Defendant;” and
(5) “the University’s data that all appeals by male respondents were misconduct cases.” [ECF No.
Plaintiff offers other evidence that he claims casts articulable doubt on the proceedings. One argument is
that Dean Overton had a conflict of interest based on his relationship with the Plaintiff that made the
proceedings unfair. Having found that the first hearing alone is sufficient to cast articulable doubt on
Plaintiff’s guilt, the Court need not consider the other arguments.
3
Maxient is a communication software that documented the University officials’ interactions with Jane
Doe during the pendency of her claim.
2
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114 p.13]. Plaintiff also argues that, in addition to this evidence related to Plaintiff’s particular
case, his claim is cast against the backdrop of the Department of Education’s “Dear Colleague”
letter. Id. at 14. The Dear Colleague letter, Plaintiff argues, gave universities a financial motive
for discrimination against males in sexual assault allegations. Id.
1.
The Dear Colleague Letter
Plaintiff casts his Title IX claim against the backdrop of a 2011 “Dear Colleague” letter from
the U.S. Department of Education to colleges and universities. See United States Department of
Education, Office of the Assistant Secretary for Civil Rights, Dear Colleague Letter (2011),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html. As the Purdue court
explained:
That letter ushered in a more rigorous approach to campus sexual misconduct
allegations by, among other things, defining “sexual harassment” more broadly
than in comparable contexts, mandating that schools prioritize the investigation and
resolution of harassment claims, and requiring them to adopt a lenient “more likely
than not” burden of proof when adjudicating claims against alleged perpetrators.
The Department of Education made clear that it took the letter and its enforcement
very seriously. And it warned schools that “[t]his Administration is committed to
using all its tools to ensure that all schools comply with [T]itle IX so campuses will
be safer for students across the country.” In other words, a school's federal funding
was at risk if it could not show that it was vigorously investigating and punishing
sexual misconduct.
Doe v. Purdue Univ., 928 F.3d 652, 668 (7th Cir. 2019) (citations omitted). Courts in other circuits
have treated the Dear Colleague letter as relevant in evaluating the plausibility of a Title IX claim.
Id. (citing Doe v. Miami University, 882 F.3d at 594 (6th Cir. 2018); Doe v. Baum, 903 F.3d 575,
586 (6th Cir. 2018); Doe v. Columbia Univ., 831 F.3d 46, 58 (2d Cir. 2016)). The rationale for
the letter’s relevance is as follows: the letter applied government pressure and threatened financial
punishment in a way that could lead colleges to discriminate against men in their sexual assault
adjudication processes. See id.
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However, courts uniformly hold that the letter alone is not enough to show bias in a particular
case. See, e.g., Doe v. Baum, 903 F.3d at 586 (stating that pressure from the Dear Colleague letter
“alone is not enough to state a claim that the university acted with bias in a particular case”).
Instead, the letter provides a backdrop that, when combined with other circumstantial evidence of
bias in Plaintiff’s proceeding, is relevant in deciding whether there is a genuine dispute of material
fact for trial. See Doe v. Purdue Univ., 928 F.3d 652, 669 (7th Cir. 2019) (evaluating the letter’s
importance in a motion to dismiss). Accordingly, the Court notes the relevant backdrop the letter
provides, and turns to Plaintiff’s evidence of bias in his particular case to determine whether a
genuine issue for trial exists.
2.
The University Data
Plaintiff argues University data in sexual misconduct cases demonstrates a pattern of bias
against male respondents. [ECF No. 114 p.13]. From January 1, 2014 through December 31,
2016, there were eight sexual misconduct investigations, complaints, or cases that resulted in a
Student Conduct Board Hearing. [ECF No. 115-4 p.2]. In all eight cases, the accused were males.
Id. at 3. There were three appeals from sexual misconduct cases during this time. Id. at 4. Two
males appealed, and one female appealed. Id. Only the female’s appeal was granted. Id.
Courts across the country and within this circuit refuse to infer gender bias based on statistical
disparity. See Doe v. Fairfax Cty. Sch. Bd., 403 F. Supp. 3d 508, 518–19 (E.D. Va. 2019) (stating
that courts have rejected this kind of statistical evidence as sufficient to establish intentional gender
discrimination); Doe v. Trustees of Boston Coll., 892 F.3d 67, 92 (1st Cir. 2018) (finding that
Boston College did not violate Title IX simply because “only male students [had] been accused of
sexual assault” during the previous 10-year period); Doe v. Oberlin Coll., 2019 WL 1439115 (N.D.
Ohio Mar. 31, 2019), appeal docketed, No. 19-3342 (“In support of his claim of gender bias,
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Plaintiff also alleges that, ‘the vast majority of the Oberlin students ... accused of sexual
misconduct are men.’ This by itself is not indicative of discrimination or bias against men.”) (6th
Cir. Apr. 17, 2019); Rossley v. Drake University, 342 F. Supp. 3d 904, 929 (S.D. Iowa 2018)
(“Courts have declined to infer a gender-based motive on the part of [school] officials from the
disparity in gender among those who are accused of sexual assault, noting that schools are not
responsible for which students choose to report sexual misconduct.”) aff’d, 979 F.3d 1184 (8th
Cir. 2020); Doe v. Cummins, 662 F. App'x 437, 454 (6th Cir. 2016) (unpublished) (reasoning there
were “more innocent” causes for the gender disparity between male and female respondents in
sexual-misconduct cases than gender bias); Tsuruta v. Augustana Univ., No. 4:15-CV-04150KES, 2015 WL 5838602, at *4 (D.S.D. Oct. 7, 2015) (“The fact that males are more often the
subject of disciplinary (or criminal) proceedings stemming from allegations of sexual assault does
not suggest that those proceedings are tainted by an improper motive.”). These statistics, alone,
are insufficient to support a finding of gender bias as a matter of law. See Rossley, 342 F. Supp.
3d at 929. However, they may provide context when combined with circumstantial evidence of
bias in a particular case. To survive summary judgment, Plaintiff must put forward evidence of
bias in his particular case.
3.
Different Treatment of Plaintiff versus Jane Doe by Student Affairs and
Related Maxient Entries
Plaintiff puts forward evidence that he and Jane Doe did not receive the same level of support
from the university following Jane Doe’s complaint. See [ECF No. 114 pp.10-11]. Plaintiff states
that Assistant Dean for Student Advocacy and Intervention, Sara Peacock4, communicated with
Jane Doe on several occasions. Id. at 10. According to Plaintiff, her role may have been to provide
supportive measures and serve as a conduit between the parties and the Student Conduct Office
4
Sara Peacock is also a member of the Student Conduct Office.
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regarding the process. Id. However, Plaintiff asserts that Peacock’s communications reveal that
she was more of an advocate for Jane Doe. She met with Jane Doe to review Title IX resources,
facilitate counseling, and update her on the progress of the case. Id. at 11. Further, Plaintiff states
that Jane Doe and her mother spoke with a university official identified as “DLP.” Id. DLP
explained that information from a criminal investigation can be helpful in a Title IX investigation.
Id. During the same call, Jane Doe’s mother asked DLP if she had seen the documentary “The
Hunting Grounds.” Id. The Hunting Grounds is a 2015 documentary detailing Title IX sexual
misconduct investigations.5
By way of contrast, Plaintiff describes the support he received. Id. He describes his
communication with the University as “perfunctory, with the sole purpose of scheduling
meetings.” Id. He states that he was not offered any support, counseling, or updates on the status
of his case. Id. According to Plaintiff, the University only reached out to offer support after his
father reached out and informed the University that his son was under extreme stress, physically
ill, and experiencing headaches and migraines because of the situation. Id.
Plaintiff’s evidence may demonstrate a victim-centered approach to providing support after the
alleged sexual misconduct. However, nothing indicates this different approach had anything to do
with gender. If anything, as noted by other courts, “the inference of pro-victim bias is an obvious
alternative explanation that overwhelms any potential of gender bias.” Doe v. Rollins Coll., 2020
WL 8409325, at *9 (quoting Rossley, 342 F. Supp. 3d at 928); see also Doe v. Univ. of Colo.,
Boulder, 255 F. Supp. 3d 1064, 1079 (D. Colo. 2017). Simply put, this is not different treatment
for similarly situated students on the basis of gender. Plaintiff and Jane Doe were not similarly
situated. Plaintiff was an alleged sexual assailant and Jane Doe was an alleged victim. This
Plaintiff notes that “The Hunting Grounds” has sparked significant academic criticism. [ECF No. 114
p.11].
5
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obvious difference is a legitimate basis for a different approach in support. Absent evidence of
gender bias, Plaintiff’s claim that he received different support from the University than Jane Doe
is not, alone, enough to survive summary judgment.
4.
The Student Conduct Panel Member’s Discussion with Jane Doe
Plaintiff points to a conversation that occurred before the rehearing as evidence of gender bias.
Id. at 12.
The conversation is, according to Plaintiff, between “[a]n unidentified woman,
presumably a member of the Student Conduct Board Panel” and Jane Doe. The conversation was
as follows:
Speaker 1: It's going to be 77 degrees.
Speaker 2: That's what I heard. Beautiful day.
[inaudible 00:46:42].
Speaker 2: If my husband hasn't done any more home destruction
before I get there, maybe we can do something tomorrow.
Speaker 1: We have a campus tour tomorrow, so will be here quite
early, hey?
Speaker 2: I guess.
Madison Knight: I work two jobs tomorrow.
Speaker 2: Oh, I don't envy you at all. Where do you work?
Madison Knight: Hmm?
Speaker 2: Where do you get to work?
Madison Knight: I work at Calli Baker's as a server. And then I
also work in Medieval Times as a server.
Speaker 2: Oh, my granddaughters love Medieval Times.
Madison Knight: It's always fun.
Speaker 2: I haven't been to the one here.
Madison Knight: It's awkward though, because now I go to wait
other tables and I'm like, "My lady." And I can't say that here. My
lady, my Lord.
Sir Chair: Let's refrain from talking to the defendant.
Speaker 2: Sure.
[ECF No. 114-4 (rehearing audio 46:42-47:40)]. Plaintiff describes this interaction as “[o]ne
of the most egregious acts of gender bias presented in the case. . .” [ECF No. 114 p.12]. The
Court disagrees. This exchange of pleasantries before the rehearing was completely unrelated to
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the substance of the hearing. Gender is not mentioned, even adjacently. The Court finds this
conversation insufficient to support a finding of gender bias.
5.
The Review Process on Appeal
Finally, Plaintiff argues that the review process on appeal is evidence of gender bias. See id.
at 13. In some circumstances, Courts have found that a departure from typical adjudicatory or
procedural norms might be so perplexing that it supports an inference of gender bias. Purdue, 928
F.3d at 669; Menaker v. Hofstra University, 935 F.3d 20 (2d Cir. 2019). When a decision is
inexplicable, the merits of the decision itself may support an inference of gender bias. Doe v.
Oberlin Coll., 963 F.3d 580, 588 (6th Cir. 2020).
In Doe v. Purdue University, the United States Court of Appeals for the Seventh Circuit held
that the disciplinary proceeding itself showed evidence of gender bias. 928 F.3d 652, 669 (7th Cir.
2019). In Purdue, the Title IX coordinator stated that she found the alleged victim credible and
not the accused student despite never hearing from the alleged victim directly. Id. The Title IX
coordinator sent her investigative report to a three-person panel of Purdue’s Advisory Committee
on Equity, which was tasked with making a recommendation to the Title IX coordinator after
hearing from the parties. Id. at 657. The plaintiff was not provided with a copy of the investigative
report nor made aware of its contents before his hearing, and the investigation summary failed to
include favorable evidence he had submitted to the University. Id. Two members of his panel
candidly stated that they did not read the investigative report. Id. The one who apparently had
read the report asked the accused student accusatory questions that assumed his guilt. Id. The
panel refused to let the accused student present witnesses, and the Title IX coordinator found him
guilty of sexual violence. Id. Under these circumstances, the court found the deficiencies in the
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proceeding raised a plausible inference that the decisionmakers chose to believe the victim because
she was a woman and disbelieve the accused student because he was a man. Id. at 699.
Similarly, in Doe v. Oberlin College, the United States Court of Appeals for the Sixth Circuit
held that an accused student alleged facts supporting an inference of sex bias where there were
clear procedural irregularities and a record that reflected no basis for the decision. 963 F.3d at
586. In Oberlin College, the school conducted a 120-day investigation, even though its policy
stated that investigations would usually be completed in 20 days, and the entire matter would be
resolved in 60 days. Id. at 586-87. The policy also required the school to notify the parties of the
reason for delay, which it did not do. Id. at 587. During the disciplinary proceeding, the panel
failed to comment on a flat contradiction between what the alleged victim told the investigator and
what she said during the hearing. Id. Further, the panel provided no apparent basis for finding
that the alleged victim was incapacitated, which was the stated reason for finding the accused
guilty.
Id. at 588.
The court held that the disciplinary process was so procedurally and
substantively perplexing that it supported an inference of gender bias. Id.
Conversely, in Doe v. Columbia College Chicago, the United States Court of Appeals for the
Seventh Circuit held there was no way to plausibly infer a disciplinary process was tainted by antimale bias where the accused student alleged his access to documents was restricted and the
disciplinary authority’s decision was against the weight of the evidence. 933 F.3d 849, 856 (7th
Cir. 2019). The court noted that the accused student did not allege only females accused of sexual
assault could review materials. Id. Further, the allegation that the decision was against the weight
of the evidence did not imply that the decision was based on the alleged victim’s gender. Id. The
court reasoned that the plaintiff failed to plausibly allege the disciplinary body blindly accepted
the victim’s allegations while finding the accused student incredible.
14
Id.
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circumstances, the court found that the plaintiff failed to allege the school’s investigation and
adjudication were tainted by an anti-male bias. Id.
Here, the review process on appeal would permit a reasonable jury to find anti-male bias.
Plaintiff argues that the procedure and outcome of the Student Conduct Board’s appeal process
was flawed.6 [ECF No. 114 p.7]. Plaintiff argues that the University failed to follow the student
conduct policy governing appeals. Id. The provision of the policy at issue states:
If a student believes he or she has been wrongly accused, the appeal authority will
generally limit its review of the original hearing record to the following two issues:
1) whether University disciplinary procedures were followed that provided notice
of the charges and an opportunity to respond; and/or 2) whether new information
exists sufficient enough to alter the original decision and why such information was
not available or not presented at the original hearing. In accordance with Title IX,
the accuser has the opportunity to submit an appeal in Title IX cases.
[ECF No. 115-3 (Def. 799-800)]. Plaintiff contends that this policy has its singular focus on issues
relating to procedural due process and the existence of new information. [ECF No. 117 p.7]. Dr.
Byington, Plaintiff contends, did not base his decision to grant an appeal on new information or a
procedural flaw. Id. at 8. Instead, Plaintiff argues that Byington relied on a report authored after
the initial hearing by the University’s Title IX coordinator Denise Perez. Id. at 9.
Defendant points out that the plain language of the student conduct policy does not strictly
limit the appeal authority’s review to procedural flaws and new evidence. [ECF No. 115 p.8].
Instead, the policy “generally limits” review to those issues. Id. Therefore, Defendant argues,
Plaintiff fully sets out the alleged flaws in the disciplinary process in the “Articulable Doubt” section of
his response. [ECF No. 114 p.7]. However, Plaintiff also cites these flaws as evidence of anti-male bias.
Id. at 13. The Court can, and does, consider alleged flaws in the disciplinary process as potential evidence
of anti-male bias. Doe v. Oberlin Coll., 963 F.3d 580, 588 (6th Cir. 2020) ([W]hether the facts of the case
“cast some articulable doubt on the accuracy of the disciplinary proceeding's outcome[,]” already takes into
account the proceeding's outcome to some extent. But when the degree of doubt passes from “articulable”
to grave, the merits of the decision itself, as a matter of common sense, can support an inference of sex
bias.”) (internal citation omitted).
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Byington was free to grant the appeal for other reasons. Id. In Defendant’s view, it was perfectly
permissible for Byington to request and review Perez’s report in making his decision. Id. at 9.
Byington’s deposition testimony does not reveal much about his decision to grant the appeal.
When asked why he granted the appeal, Byington testified:
I don’t recall whether I made my decision specifically on new information,
procedural information, as to why this decision was made to send it back for another
review, but it would have been on some of these – you know, one of these criteria.
[ECF No. 114-3 (Byington Deposition p.58)]7. When asked what new information was available
that supported granting Jane Doe’s appeal, Byington responded:
I would assume it would be the blood alcohol level. Just from what I brought up
earlier reading through it very quickly, it would have been related to - - it would
have been related to something related to blood alcohol level, related to consent,
related to any of these things that I felt it was sufficient enough for it to be heard
again.
[ECF No. 114-3 (Byington Deposition p.59)]. As Plaintiff points out, Jane Doe’s blood alcohol
level was presented at the initial hearing. [ECF No. 114-2 (Def. 169, 242)]. When asked if he
considered Perez’s report in his decision to grant Jane Doe’s appeal, Byington testified as follows:
Q: And you did take into consideration the report of Ms. Perez in your decisionmaking; isn’t that correct?
A: It was my decision. So “take into consideration.” I took the totality of the
information I had in front of me.
Q: And that included the - - the professional opinion of Ms. Perez, correct?
A: It included all of the information I had in front of me.
Q; And that included the professional opinion of Ms. Perez. That was - A: That was - - that was in front of me, yes.
Q: And the information – this report of Ms. Perez was not presented to the Student
Conduct Board, was it?
A: Correct. Well, at least it wasn’t originally. Whether it was presented to the
second board, I am not aware, so . . .
Q; But it was not presented to the board that conducted in December - A: Correct
Page 58 of Byington’s deposition was not included in the excerpts in the record due to a scrivener’s
error. However, the parties do not dispute that this was his testimony and that it appeared on page 58 of
his deposition.
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[ECF No. 114-3 (Byington Deposition p.62-63)].
Defendant’s decision to overturn Plaintiff’s acquittal appears to be unusual based on the policy
language. Like the decision-making process in Purdue and Oberlin College, the school’s decisionmaking process was somewhat perplexing. Plaintiff was found not guilty at his first hearing. Dr.
Byington decided to grant Jane Doe’s appeal to have the case heard again. His deposition
testimony does not reveal why he decided to do so. The policy generally limits grounds for appeal
to new evidence or procedural flaws. However, Dr. Byington does not say that he granted the
appeal on either of these bases. As Defendant argues, the policy technically gave Dr. Byington
the discretion to grant appeals on other bases. However, the justification for exercising this
discretion is unclear based on the record before the court. Because there is a genuine dispute about
what motivated this decision, summary judgment is inappropriate.
A reasonable jury could find anti-male bias motivated the school’s decision to grant Jane Doe’s
appeal and order a rehearing. Against the backdrop of federal pressure to enforce Title IX, the
school may have been motivated to subject acquittals of male students accused of sexual
misconduct to more scrutiny. The statistical disparity in sexual misconduct actions tends to show
a pattern of treating males more harshly than females in sexual misconduct actions. This backdrop,
alone, is insufficient to survive summary judgment. However, in Plaintiff’s particular case, his
acquittal was overturned for reasons that are unclear in from the record before the Court. Although
any basis for appeal was technically permitted by the policy, the appeal was unusual in that regard.
Further, Dr. Byington decided to have an independent Title IX report prepared, which he reviewed
in deciding to grant Jane Doe’s appeal. This outside independent review of the first panel’s
decision is not contemplated in the school’s appeal policy. This evidence may reflect an appeal
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process that was unusually generous towards the female appellant. Therefore, the review process
on appeal creates a genuine dispute of material fact as to gender bias.
CONCLUSION
In sum, while most of Plaintiff’s evidence is legally insufficient to create a genuine dispute of
material fact, the questions surrounding the review process on appeal narrowly create a genuine
dispute for trial. The Court finds that Plaintiff has put forward evidence that would allow a
reasonable jury to doubt the outcome of his disciplinary proceeding and find a causal connection
between the erroneous outcome and gender bias. Accordingly, Defendant’s motion for summary
judgment is DENIED.
IT IS SO ORDERED.
/s/Sherri A. Lydon
Sherri A. Lydon
United States District Judge
March 1, 2021
Florence, South Carolina
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