Alfonso Pacheco v. St. Mary's University, et al
MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth. (Attachments: # 1 Order continued)(rf)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JUN 2 02017
ICT F TEXAS
Civil Case No. 15-cv-1131 RCL)
ST. MARY'S UNiVERSITY, et al.,
Plaintiff Alfonso Pacheco was a student at defendant St. Mary's University, a private Catholic
university located in San Antonio, Texas. He was suspended from the university followin.g
accusations and a subsequent finding that he committed violations of the university's Code of
Conduct for sexual harassment against a fellow student and conduct inconsistent with the
university goals and values. Pacheco sued St. Mary's, as well as two members of the St. Mary's
Police Department, Officer Apolonia Vargara and Officer Francisco Osuna, alleging that St.
Mary's procedures in investigating and disciplining students "discriminates against men who are
accused of sexual misconduct on the basis of their sex" and are "fundamentally unfair." Compl. 1,
Pacheco's complaint raises claims for breach of contract, violation of Title IX of the
Education Amendments Act of 1972,1 negligence, violation of the Fifth and Fourteenth
Amendments to the United States Constitution, and for declaratory relief under 22 U.S.C.
235, codified at 20 U.S.C. §
1681-1688 (hereinafter "Title XI").
Defendant St. Mary's and defendants Osuna and Vargara separately moved for summary
judgment. ECF Nos. 20 & 21. Before the Court are defendants' summary judgment motions,
plaintiff'srespective response, ECF No. 25, and defendants' joint reply, ECF No. 29. Also before
the Court is defendant's joint motion to exclude plaintiff's summary judgment evidence as
irrelevant pursuant to Rule 402 of the Federal Rules of Evidence. ECF No. 30. Plaintiff did not
respond to the motion to exclude. For the reasons articulated below, the Court finds that the motion
to exclude should be DENIED, and the motions for summary judgment should be GRANTED.
On the night of May 2, 2014, Alfonso Pacheco, a senior male student, took complainant, a
junior female student, to the Kappa Sigma formal, which was held at a bar in downtown San
Antonio called the Cadillac Bar. Pacheco and the complainant consumed alcohol prior to and
during the formal. The two returned to campus, along with four other students, in the early
morning hoursapproximately 1:30 a.m. The other students in the car were Brian Zavala, Crystal
Zapata, Mia Silva, Christopher Trevino, and Jamie De Los Santos (the driver). According to the
others, Pacheco and the complainant were "making out" and exchanging sexually explicit language
regarding acts they wanted to perform on each other. When the car arrived at campus, Trevino,
Pacheco, and the complainant exited for the Chaminade Residence Hall.
Pacheco and the
complainant went upstairs to Pacheco's room on the second floor.
Across the hallway from Pacheco's room, Azalea Griego and Fabian Hernandez were watching
movies. Pacheco apparently was having trouble unlocking the door to his room due to being highly
intoxicatedhe was trying to open his dorm room with his mailbox key. The complainant, who
was familiar with Griego, asked Hernandez if he would help Pacheco open the door. Hemandez
helped Pacheco open the door and deliberately switched the locking mechanism to remain
unlocked. Pacheco entered the room and unbuckled his pants, telling Hernandez "Jt's Ok bro, I
Pacheco showed Flernandez that he had a condom.
Griego asked the
complainant if she needed to be taken to her dorm room, but complainant responded "No, I need
you to take me to where Pattie's [a sorority sister] at." Trevino returned and told Hernandez and
Griego that he would handle the situation. Griego and Hernandez went back to their room.
Trevino took complainant and Pacheco into Pacheco's room.
PattiePatricia Escobedoto tell her about the situation. Eseobedo said that
she knew Pacheco and that she trusted him. Griego and Hernandez then went to the laundry room,
and Hernandez told Griego that Pacheco had showed him a condom saying have protection."
Griego said she was going to call Pattie. They returned from the laundry room and listened to
through the door of Pacheco's room. Griego called spoke to Pattie, telling her that Pacheco had
unbuckled his pants and produced a condom. Pattie told her to "get [thecomplainant out of there"
and to bring the complainant to Pattie's room.
Griego and Hernandez knocked on Pacheco's door, but knew the door was unlocked from
when Hernandez had helped Pacheco open his door. They the heard bed-spring squeak, a thump,
and plaintiff yell "turn around." Griego and Hernandez opened the door and entered the room.
Pacheco was standing with his pants and underwear around his ankles, attempting to remove the
complainant's underwear. She was lying motionless, face-down with her legs off the side of the
bed and her dress pulled over her thighs.
Pacheco had an erection.
complainant was unconscious and pushed Pacheco out of the way.
Griego believed the
Hernandez carried the
complainant out of the room. She was mostly mumbling unintelligibly, but Hernandez heard her
say something like "I'm so embarrassed."
Griego and Hemandez took complainant to Pattie's room in John Donohoo Hall. After Pattie
returned, she spoke with Griego and attempted to call a sorority advisor. Pattie got no answer.
She then called the University Police Department to report the incident. Officers Apolonia Vargara
and Francisco Osuna took the call and responded to John Donohoo Hall. The officers were joined
by Patricia Lathen, St. Mary!s Director on Duty, who was present while the officers spoke with
Pattie and Griego
The officers were not able to speak with complainant due to her level of
intoxication. Griego and Pattie informed them that the complainant's belongings were still in
Officers Vargara and Osuna, accompanied by Director Lathen, went to Pacheco's room in
Chaminade Hall. Pacheco answered the door, and the officers noted the smell of alcohol. Pacheco
appeared intoxicated and there was vomit on the floor, sink, and cabinets of the room. They asked
if anyone had been in the room that evening, which Pacheco denied. When asked about a female
shoe visible on the floor, Pacheco said it belonged to him.
Officer Vargara noticed the
complainant's purse under Pacheco's bed. When asked who the purse belonged to, Pacheco
admitted that it belonged to the complainant and that she had been in his room but left because she
was tired. The officers gave Pacheco clothing to wear, placedhim in handcuffs, and arrested him.
They escorted him out of the dormitory, down a flight of stairs, and to the police station. Pacheco
was apparently able to walk under his own power.
At the police station, Pacheco was Mirandized and agreed to speak with the police He said he
had invited the complainant out on a date, that they had been drinking at the Cadillac Bar, and that
they returned to the university that night. However, Pacheco claimed that the complainant wanted
to go back to her donn because she was tired, and that Pacheco told her to go to her room because
she was too intoxicated After the Interview with police, Pacheco was transported to the
magistrate's office for criminal charges of Attempted yd Degree Sexual Assault, Texas Penal Code
15.01, 22.011. Those charges were referred to the Bexar County District Attorney. While at
the Bexar County Jail, Pacheco was given notice of a temporary suspension excluding Pacheco
from all university facilities, property, and events for the duration of the suspension.
The next morning, May 3, 2014, the complainant was interviewed by Captain Jeff Earle. The
complainant remembered having a drink before the formal, and two margaritas at Cadillac Bar.
According to her statement, the last thing complainant remembered at Cadillac Bar was line
dancing and sitting down at a table. The next thing she remembered was being woken up in Pattie's
She apparently did not remember how she got there or what had happened in
Pacheco's room. After speaking with Captain Earle, the complainant spoke with Tim Bessler,
Dean of Students at St. Mary's University. Bessler told her that "everything would be okay" and
that she had "done nothing wrong." He explained that the university would respond by selecting
a panel to investigate the matter, and that any resulting charges would fall under Title JX. If the
investigation found sufficient evidence to support formal charges for a violation of university
policy, Pacheco would be charged and have the right to a disciplinary hearing to determine whether
he was responsible for the charges.
The grievance procedure regarding violations of the St. Mary's Code of Conduct consists of
three phases. First is the investigation phase, According to the Student Handbook, formal
investigations may be conducted to resolve factual disputes. A factfinding panel may consist of
no more than three persons from the university. In appointing the panel, a supervisor must state
the terms and conditions of the investigation.
The panel has no authority to make
recommendations or impose final actions. Rather, the panel presents facts to the supervisor, and
the supervisor determines the proper disposition based on a hearing.
The second phase is this hearing phase. The procedures observed inthe hearing are as follows:
The hearing will be conducted In prvate Indications of lrrespansthle dIscussion
of the grievance outside of the formal hearing may become the basis for
allegations that due process has been violated. All parties to the hearing are
cautioned against irresponsible discussion. The parties will make no public
statements about the case during the course
of the hearing.
be permitted to have
an advisor present.
the grievance will have the right to obtain witnesses and present
All parties to
evidence. The University will cooperate with all parties in securing witnesses and
maldngavailable documentary and other evidence requested to the extent
permitted by law.
Alt parties have the right to question witnesses1 bowever, the accused and the
accuser may not question each other. When a witness has made a written
statement and cannot or Will not appear, butthe chair determines that the
interests of Justice require admission of that statement, the Chair will ldenth' the
witness, disclose the statement, and If possible, provide for Interrogatories. The
Chair will also grant appropriate continuances to enable either party to
Investigate evidence, or for any other appropriate reason.
In all cases the burden ofproof shall be on the grievant. flowever, the Chair will
not be bound by strict rules of legal evidence, The decision will take the form of
findings of fact, conclusions, andrecommended disposition of the grievance. The
findings of fact, conclusions, and recommended disposition must be based solely
on the hearing's record, pertinent University procedures set forth In this
statement, and the laws of the State of Texas and the United States ofAmerica.
During the proceedings
afl parties will
ECF No. 20-9. The result of the hearing must be reported to students in writing within ten days
of the date the grievance was received. If the hearing extends beyond ten days, the supervisor
must inform the student of the delay and the expected response date. Students must also be
informed that they have the right to seek appeal.
The third phase is the appeals phase. Students may seek review
of the disposition by the
appropriate Vice President. The Vice President's decision "should be transmitted to the student
within ten (10) working days from the date the written appeal was received." ECF No.20-9. The
Vice President's decision constitutes final agency action.
On the evening of May 3, 2014, Pacheco was released on bail from Bexar County Jail. The
next day he noticed some bruising on his arms, apparently from where the officers gripped his
arms escorting him to the police station. Pacheco was informed by John Wickline, the Director of
Judicial Affairs at St. Mary's, that Pacheco was temporarily suspended, pending an investigation
and that he was not allowed to enter campus without permission. Pacheco arranged a meeting with
Bessler on or about May
Bessler explained the suspension and investigation process, and
outlined Pacheco's due process rights articulated in the Student Handbook. Pacheco informed
Bessler that he would not speak about the incident without an attorney present. Following the
meeting, Pacheco retained an attorney.
On June 3, 2014, Pacheco was informed of the results of the university's investigation. The
investigatory panel was made up of three panelists: Carmen Nasr, an Assistant Director of
Residence Life, Benjamin Underwood, an Assistant Director of the University Center and
Conference Services, and Jasmine Ellis, Athletics Compliance Officer. The panel interviewed the
complainant, as well as Griego, Hernandez, Trevino, Pattie Escobedo, and Adrianna Cortez, a
friend of Escobedo's who was present at the time of the incident. Pacheco refused to participate
and was not interviewed. The panel summarized the interviews in a report dated May 29, 2014,
and concluded that there was evidence that Pacheco violated the Code of Conduct. Specifically,
Article II Point B for sexual harassment, Article II Point B for attempted sexual assault, and Article
II Point A for conduct inconsistent withthe Christian goals and values
of the university.2 The June
3, 2014 notice requested Pacheco to schedule a meeting to discuss the next steps in the process.
Around July 9, 2014, Pacheco and his attorney reviewed the witness statements and other
documents used by the investigation board.
2Under the Code of Conduct, sexual harassment is defined as "unwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual nature when (A) Submission to such conduct is made either explicitly
or implicitly a term or condition of an individual's employment or academic status; (B) submission or rejection of such
conduct by an individual is used as a basis for employment or academic decisions affecting such individual; or (C)
such conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance,
or creating an intimidating, hostile, or offensive working environment." ECF No. 20-9.
The other two offensessexual assault and conduct inconsistent with the university's goals and valuesare undefined
by the Code. However, the Code does emphasize the importance of "growth, community and Christian vatues"
including "the promotion of truth, honesty, personal integrity and self-responsibility." ECF No. 20-9.
On July 29, 2014, the university convened a hearing to deterrñine whether Pacheco would be
found responsible for violations of the University Code of Student Conduct. The hearing panel
was made up of three panelists: Karen Williams, James Villareal, and Kathe Lehman-Meyer.
Neither the complainant, nor Pacheco or his attorney, attended the hearing. No witnesses were
called by the absent parties. Rather, the panel reviewed statements given to the investigators,
Pacheco had not given an interview to the
including the statement by the complainant.
investigators and did not present evidence, so the pane! did not consider his version of events.
On August 5, 2014, the judicial board found Pacheco not responsible for sexual assault but
responsible for sexual harassment and conduct violating the university's goals and values.
Accordingly, he was suspended and restricted from being on St. Mary's University property until
August 1, 2017. Pacheco was informed he had the right to submit an appeal, in writing, to the
Dean of StudentsBesslerwithin five days. The notice included a link to the Code of Conduct
in the Student Handbook for details on the appeals process outlined above.
On August 11, 2014, Pacheco filed an appeal on the basis that he did not have a reasonable
opportunity to prepare and present rebuttal of allegations against him, that the hearing was not
conducted fairly in light of Dean Bessler's previous interactionswith the complainant, and that the
investigative team did not interview all students with knowledge of the incident. The appeals
board convened on August 28, 2014 to review Pacheco's appeal. The board consisted of Leah
Bowen, Brian Martinek, and Jaqueline Pefia. The appeal board found that Pacheco had a
reasonable opportunity to prepare and present rebuttal of said allegations, that the hearing was
conducted fairly, and that the investigative team did not exclude evidence. Specifically, the board
determined that Pacheco was sent a copy of his conduct record with redacted names of students
who had not consented to having their records released outside the university. Further, the board
determined that Pacheco was aware of the guidelines: and procedures of the investigative process,
as articulated in the Student Handbook. The board also noted that Pacheco chose not to participate
in the hearing, despite having the opportunity' to present and question witnesses, and did not
identify any additional persons with knowledge of the incident to the investigative board. Finally,
the board determined that Bessler's comments to the complainant that she had done nothing wrong,
did not show bias or favoritism or render the hearing unfair. The board wrote:
The odginal hearing wasconducted fairly in tight of the charges and evidence presented Mr.
Pacheco particularly cafled into questions a statement made by the Dean of Students, Dr. Tim
Bessler. Dr. Bessler told the complainant that she had done nothing wrong. After Interviewing
Dean Bessler the appeals board was able to understand the context of this statement The
statement was made to address a level of support for the complainant, 'It was not a comment
directed toward the Incident Itself. The complainant was concerned about the consequences of
her speaking about the Incident to the Dean of Students? police, etc. This Is what Or, Bessler was
referencing when he stated she dId nothing wrong7 The Dean of Students also shared that It is
his responsibility to show care and support for all students. The Appeals 8oard also noted that
this statement Is provided in the same document that Mr. Pacheco is referring to.
The disposition of the original judicial body was affirmed by the appeals panel on September 3,
2014. At some point, the criminal charges were dropped, and the only discipline imposed for the
incident was through the St. Mary's proceedings. Pacheco's suspension from St. Mary's remains
in effect until August 1, 2017. While he missed his graduation ceremony due to the suspension,
he was conferred a degree and is a graduate of St. Mary's.
These facts are largely undisputed.3 However, there are some key disputes over additional
details. First, the parties dispute whether the complainant was passed out in the room with Pacheco
before Hernandez and Griego entered, or whether she had consented to sexual intercourse with
The Court largely recites defendant St Mary's statement of facts, as adopted by plaintiff. Resp. 4 ("The facts in this
case are largely undisputed and with the some [sic] exceptions outlined herein, the Plaintiff adopts the Defendants
statement of facts...
Pacheco. Second, the parties also dispute whether Pacheco was told that he was not allowed access
to an attorney during the investigation and appeals process. Third, the parties dispUte whether
Pacheco was told that he would not be allowed to cross-examine witnesses or introduce evidence,
such as a cell phone video of Pacheco and the complainant making out during the ride back to
campus. Fourth, the parties dispute whether the police officers "roughed up" Pacheco after the
arrest, denied him access to water or a bathroom at the police station, or otherwise used excessive
force in violation of his constitutional rights during his arrest. This action arises from those
On December 17, 2015, Pacheco flied the instant suit alleging five claims: (1) breach of
contract, (2) violation of Title IX, (3) negligence, (4) violation of constitutional rights, and (5) a
declaratory judgment that St. Mary's rules, regulations, and guidelines are unconstitutional or
unlawful. Compi. 15. On March 1, 2017, defendants moved for summary judgment, arguing that
plaintiffs claims fail as a matter of law. ECF Nos. 20 & 21. Specifically, St. Mary's argued that
there is no Title IX theory of liability under which Pacheco can recover and that there was no
breach of contract or negligence on the part of St. Mary's. Similarly, Officers Osuna and Vargara
argued that there was no excessive force or denial of water or bathroom use in violation of
Pacheco's constitutional rights.
On March 10, 2017, the parties agreed to an initial extension
of time to file a response, ECF
No. 23. On March 13, 2017, Judge Pitman granted the extension to April 15, 20l7 On April 12,
2017, days before the response was due, Judge Pitman ordered this case reassigned to Judge Royce
C. Lamberth. ECF No. 24.
On April 16, 2017, Pacheco filed his response to the motions for summary judgment. ECF
No. 25. At the time of filing, the response was untimely by one day. However, the following day,
April 17, 2017, plaintiff filed an unopposed Rule 5 6(d) motion to extend the response deadline one
day due to "a problem with his computer on April 15, 2017." ECF No. 26. Plaintiff sought an
extension of the response deadline to April 17, 2017 and asked this Court to "deem his motion
timely." ECF No. 26. While the motion was captioned "unopposed," it lacked a certificate of
service to the opposing parties. ECF No. 27. Plaintiff filed the certificate of service following
day, April 18, 2017. ECF No. 28
On April 27, 2017, defendants filed a joint reply to the untimely response. ECF No. 29. The
reply noted that there were no genuine issues of material fact, but did not address the timeliness of
the response. No opposition to the motion for extension was ever filed.
Defendants filed a separate objection to the summary judgment evidence and moved to exclude
plaintiff's use of his own deposition testimony as summary judgment evidence. ECF No. 30,
Defendants argued that the evidence is irrelevant and not probative of any material issue before
the Court, and should be excluded pursuant to Rule 402 of the Federal Rules of Evidence Plaintiff
did not respond to the motion to exclude.
Under Federal Rule of Civil Procedure 56, a court must grant summary judgment "if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a; see Anderson v.
Liberty Lobby, inc., 477 U.s.
242, 247 (1986).
The movingparty bears the burden of establishing the lack of a genuine issue of
material fact. 14.
"[hf the movant bears the burden of proof on an issue, either because he is the
plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond
peradventure all of the essential elements of the claim or defense to warrantjudgment in his favor."
Upjohn Co., 780
F.2d 1190, 1194 (5th Cir.
the movant does not bear the
proof at trial, he is entitled to summary judgment if he can point to an absence of
evidence to support an essential element of the nonmoving party's case.
See Celotex corp.
Gatrett, 477 U.S. 317? 323 (1986). Similarly, a movant withoutthe burden of proof at trial may be
entitled to summary judgment if sufficient evidence "negates" an essential element. Id. The lack
of proof as to an essential element renders all other facts immaterial. Id.
A fact is material if it could affect the outcome of a case. Anderson, 477
at 247. A dispute
is genuine ifthe evidence is such that "a reasonable jury could return a verdict for the nonmoving
party." Id. To survive summary judgment, a nonmoving party must present specific facts or
evidence that would allow a reasonable factfinder to find in his favor on a material issue. Anderson,
477 U.S. at 247. However, merely asserting a factual dispute or conclusory denials of the
allegations raised by the moving party is insufficient; the nonmoving party must come forward
with competent evidence. Id. at 249-250. The nonmoving party may set forth specific facts by
submitting affidavits or other evidence that demonstrates the existence of a genuine issue. Id.
also Fed. R. Civ. P. 56c. Competent evidence of the nonmoving party is to be believed, and all
justifiable inferences are to be drawn in her favor. Id.
Pacheco raises claims for (1) breach of contract, (2) violation of Title IX, (3) negligence, (4)
violation of constitutional rights, and (5) a declaratory judgment under 22 U.S.C.
Defendants have moved for summary judgment as to the entirety of those claims. Defendants have
also moved to exclude plaintiffs use of Pacheco's deposition testimony as irrelevant and not
probative of the above claims. The Court will assess motions to exclude first.
a. Motion to Exclude
Rule 56 of the Federal Rules of Civil Procedure states that a party may object that material
cited to support or dispute a fact "cannot be presented in a form that would be admissible in
evidence." Fed. R. Civ. P. 56(c)(2). Rule 402 states that relevant evidence is generally
admissiblewith some exceptionsand irrelevant evidence is not admissible. Fed. R. Evid. 402.
Evidence is relevant "if it has the tendency to make a fact more or less probable than it would be
without the evidence and the fact IS of consequence indetermining the action." Fed. R. Evid. 401.
Defendants argue that the following statement is irrelevant and should be excluded:
"The affection and dirty talk continued while the two entered Plaintiffs dorm room
and after they entered Plaintiffs donn room." Deposition of Alfonso Pacheco
This statement appears to be an interpretation of Pacheco's testimony contained in plaintiffs
response, not the testimony itself. The actual testimony is as follows:
And you were both intoxicated probably beginning at being at the Cadillac
And then you both went up to the room together, correct?
And who was leading, you or her, up to the room?
Okay. And you were holding her hand?
Just kind of walking together.
Okay. Were you the two ofyoucontinuing to engage in the type of affection
activities that you described happening in the car?
To a point, yes.
Okay. That's a yes or no. Were you?
Defendants argue that the evidence is irrelevant because the testimony is self-serving and did
not come into existence until discovery.
That is, defendants argue that St. Mary's had no
knowledge of any "dirty talk" between Pacheco and the comp1ainant when it conducted its
investigation. Therefore, according to defendants, this evidence is not probative of a material fact
because such evidence could not have affected any decision-makers during the investigation. Mot.
2, ECF No. 30 ("Only evidence St. Mary's was aware of prior to completion of the disciplinary
process could have influenced St. Mary's motivation.").
The Court notes that plaintiff's did not respond to this motion to exclude. Normally, this Court
would take the motion as conceded.
However, defendant St. Mary's motion for summary
judgment exhibits include Pacheco's deposition, including this excerpt. Def.'s Mot.,. Exhibit D,
ECF No. 20-5. Further, defendants St. Mary's and Osuna and Vargara cite directly to a portion
of this excerpt in their motions for summary judgment to show that plaintiff led complainant up
the stairs. Def.'s Mot. 3, ECF No. 20.; Defs.' Mot 2, ECF No. 21. It appears, then, that defendants
object to how plaintiff presents the testimony, rather than objecting that the evidence lacks
entirly or arguing that the deposition is inadmissible. However, whether the
evidence presented actually raises a genuine issue of material fact is a matter for summary
judgment. Indeed, Rule 5(c)(1) specifically states that a party asserting, a fact that cannot be or
is genuinely disputed "must support the assertion by citing to particular parts of materials in the
record, including depositions.
Fed. R. Civ. P. 56(c)(l)A). Surely defendants do not argue
that the depositions on which their motions partially rely are inadmissible.
Finally, the Court rejects the argument that only evidence St. Mary's was aware of prior to the
investigation is relevant. First, Pacheco's claims concern the integrity of the investigation itself,
including whether Pacheco was discriminated against for being male and whether St. Mary's
breached a contract with Pacheco by failing to adhere to the procedures outlined in the Student
Handbook.. Therefore, whether St. Mary's prohibited Pacheco from testifying and what evidence
the investigation panel did or did not have before it are certainly facts of consequence in
determining whether the investigation complied with the requirements of Title IX or amounts to a
breach of contract. Therefore, such evidence is relevant' to the Title IX and contract claims.
Second, Pacheco's claims also include excessive force by the police officers investigating the
incident as a criminal matter. Certainly Pacheco's testimony as to the officers' treatment of
Pacheco is relevant to those claims, whether or not St. Mary's was aware of that testimony or the
officers' alleged conduct at the time of the investigation.
in short, Pacheco's deposition testimony passes the low bar of relevancy under Rule 402,
particularly in light of defendants' own use of that evidence.
For the above reasons, the Court
finds that Pacheco's deposition testimonyas a whole and the above
excerptare relevant and
should not be excluded. Defendant's motion to exclude will therefore be denied.
b. Motions for Summary Judgment
Defendants moved for summary judgment on the entirety of plaintiff's claims. Pacheco's
complaint raises claims for (1) breach of contract, (2) violation of Title LX, (3) negligence, (4)
violation of constitutional rights, and (5) a declaratory judgment under 22 U.S.C.
Court will assess each claim separately.
Breach of Contract
Pacheco's complaint alleges breach of contract against St. Mary's, but no such claims are
alleged against Officers Osuna and Vargara. "Under Texas law, a plaintiff alleging a breach of
contract must show '(1) the existence of a valid contract; (2) performance or tendered performance
by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff
resulting from that
v . Wells
Fargo Bank, N.A., 814 F.3d 763, 767 (5th Cir.
2016) (quoting Wright v. Christian & Smith, 950 S.W.2d 411,412 (Tex. App.Houston [1st Dist.]
1997, no writ). St. Mary's argues no contractual relationship existed, and even
if it did that
Pacheco has produced no evidence of breach.
There likely was a contractual relationship between Pacheco
and St. Mary's.
According to plaintiff, a contractual relationship existed between St. Mary's and Pacheco, and
the University Code of Conduct was either "a part of that contract" or a contract itse1f Compi. 11.
Thus, Pacheco argues, St. Mary's was "required to act in accordance with its Student Code of
Conduct in resolving complaints of violations of the student Code, in the investigation of those
complaints, in the process of adjudicating the complaints before hearing boards; and in resolving
appeals brought challenging a disciplinary panel's determination." Id.
alleges that St. Mary's breached this contract by failing to comply with the Code in eight ways:
(1) failing to provide fair notice of the parameters of charged offenses; (2) failing to impartially
investigate the allegations; (3) failing to provide the names
against Pacheco, (4)
failing to locate and preserve relevant evidence; (5) failing to compel testimony of student
witnesses; (6) failing to allow Pacheco to be present during the disciplinary hearing; (7) failing to
allow Pacheco to cross-examine witnesses; and (8) failing to allow Pacheco's appeal to be
considered in a "meaningful manner." Id. As a result of those alleged breaches, plaintiff alleged,
Pacheco has suffered damages such as incurring attorney's fees, "deprivation of future educational
opportunities," "inhibition of this ability to transfer to other educational institutions," reputational
damage, and loss of future earning capacity.
St. Mary's moves for summary judgment on the grounds that St. Mary's did not breach any
contract with Pacheco in its disciplinary proceedings. Def.'s Mot. 6. Specifically, St. Mary's
argues that the Code of Conduct in the Student Handbook is not a contract. And even assuming
that the Code of Conduct was a
contractor part of a contractwith Pacheco,
Mary's claims there is no evidence of breach because he was afforded all the rights set out in the
Several cases have addressed whether a university handbook constitutes a contract under Texas
law. Those cases center on whether a schoolintends to be bound bythe language in the handbook.
E.g. University of rex. Health Sc!.
tr. v. Babb, 646 S.W.2d 502 (Tex.
App.Houston [1st Dist.]
1982, no writ) (finding that a student catalog expressly stating that a student admitted under its
terms could continue under the same catalog established a written contract because the university
intended to be bound by its terms; Eilandv Wolf, 764 S.W.2d 827,838 (Tex. App.Houston [1st
Dist.] 1989, writ denied) (distinguishing Babb and finding that no enforceable contract existed
based on the express statement that the provisions of the university catalogue were subject to
change); To bias v. University ofTexas
S.W.2d 201, 211 (Tex.
1991), cert. denied, 506 U.S. 1049 (1993) (finding an express disclaimer
ofa contract negates the
inference of any intent to be bound by the university catalog); Southwell
Word, 97 4 S.W.2d 351, 355-56 (Tex.
v. Univ. of Incarnate
1998, pet. denied) (finding a student
bulletin did not itself create a contract between a university and a student because there was no
intent to be bound when the college reserved the right to alter the bulletin without prior notice).
"[a] basic requisite of a contract is an intent to be bound, and the catalog's
express language negates, as a matter of law, an inference of such intent on the part of the
university." 764 S.W.2d at 838; see also RESTATEMENT (SECOND) 0? CONTRACTS
(1981). Thus, when a handbook lacks express language evincing an intent to be bound and instead
contains provisions that reserves a right to change or alter the policies contained in a student
handbook, there is no contract because there is no intent to be bound.
Here, Article IX of the Code specifically states that it "shall be reviewed every year" and "may
be modified, upon request, by the dean of students or vice president for Student Development fiom
time to time during the academic year" and are "effective upon publication of the modification."
0, ECF No. 20-9. In other words, St. Mary's can unilaterally modify the terms of the
Code and those changes would be immediately effective upon publication. The Court therefore
finds that St. Mary's had no intent to be bound by the terms of the Code of Conduct. Accordingly,
the Code of Conduct did not itself create a contractual relationship between Pacheco and St. Mary's
However, as noted in Eiland and Southwell, while a handbook itselfmight not create a contract
between a student and a university, an implied contractual relationship may yet exist. "[T]he
relationship between a private school and its student has by defmition primarily a contractual
S.W.2d at 356 (quoting Eiland, 764 S.W.2d at 838). "Accordingly, where
a private college or university impliedly agrees to provide educational opportunity and confer the
appropriate degree in consideration for a student's 'agreement to successfully complete degree
requirements, abide by university guidelines, and pay tuition, a contract exists." Id. (citing Smith
840 S.W.2d 702, 704 Tex.
App,Corpus Christi 1992, writ denied)). Indeed, it seems
obvious that St. Mary's impliedly agreed to provide educational opportunities and confer the
appropriate degree in consideration for Pacheco's successful completion of degree requirements,
while paying tuition and abiding by university guidelines. Thus, as asserted in Pacheco's
complaint, the university guidelinesand the Code of Conductlikely exists as part of a contract
between Pacheco and St.
"The specific terms of such a contract must logically be defined by the college or university's policies and
requirements." Southwell, 974 S.W.2d at 356. In the absence of language, "the student agrees that those terms are
subject to change throughout the course of his or her education." Id
2. Pacheco raised no evidence of breach.
St. Mary's argues that even if the Code ofConduct is part of an implied contract, the evidence
establishes that no breach occurred. For support, St. Mary's points to Pacheco's admission that he
was aware of the investigation process, that he had the right to review the charged allegations, the
right to have a non-St. Mary's adviser accompany him, the right to hear testimony and review
statements before the panel, the right to present witnesses on his own behalf, the right to offer
rebuttals to evidence, and the right to be advised of the appeals process. Pacheco Depo. 81:1684:7, ECF No. 20-5. Pacheco also testified that he did in fact review the charges, and that he had
the opportunity to present witnesses but chose not to attend the hearing. Id Thus, St. Mary's
argues, Pacheco was afforded all the rights set out in the Code of Conduct.5
In his response, Pacheco fails to even address the breach of contract claims. In fact, the only
claims Pacheco even addresses are violations of Title IX and the constitutional violations under 42
1983. By failing to present these issues in his response, plaintiff has abandoned these
issues. See Blackv.
Panola Sch. Dist, 461 F.3d 584 n.1 (5th Circ. 2006) ("[Plaintiff s] failure
to pursue [a] claim beyond her complaint constituted abandonment.");
see also Vela
271 F.3d 659, 678-79 (5th Circ. 2001) (finding an argument raised weakly in the
pleadings but not re-asserted at summary judgment is abandoned). The Court will treat the motion
for summary judgment as to breach of contract as conceded, and defendant is entitled to summary
judgment on the breach of contract claim.
Sc. Mary's goes on to address each purported violation of the Code of Conduct. However, because Pacheco failed
to address even the theory of breach of contract liability, much less the individual purported breaches, this Court takes
these arguments as conceded as to the breach of contract claims. Insofar as plaintiff raises counterarguments while
arguing the merits of his Title IX claim, the Court will take those arguments up upon consideration of Title IX
Pacheco's complaint also alleges that St. Mary's owed a duty to Pacheco "to exercise
reasonable care, with due regard for the truth, established procedures, fair notice of the scope of
any charged offenses, and the important and irreversible consequences of its actions, as well as the
Plaintiffs' various liberty and property rights and interests generally." Compi. 13. Pacheco claims
St. Mary's breached this duty "by carelessly, improperly, and negligently performing their
assigned duties, rnischaracterized the truth, and facilitated a process that violated the rights and
other protected interests of [Pacheco]." Id
In Texas, a negligence cause of action has three elements: "1) a legal duty; 2) breach of that
duty; and 3) damages proximately resulting from the breach." Van Horn v. Chambers, 970 S,W.2d
542, 544 Tex. 1998). "The plaintiff must establish both the existence and the violation of a duty
owed to the plaintiff by the defendant to establish liability in tort."
Greater Houston Transp. Co.
Phillips, 801 S.W.2d 523, 525 (Tex. 1990). However, the existence of duty "is a question of
law for the court to decide from the facts surrounding the occurrence in question." Id. As noted
by defendants, there is a critical difference between the breach
of a duty under a tort theory and
the breach of a duty under a contract theory.
To determine whether a claim arises under tort or breach of contract, Texas courts must look
to the substanceof the cause of action rather than the specific language pleaded. Farah v. Mafringe
927 S.W.2d 663, 674 (Tex.
AppHouston [1st Dist.]
1996, no writ). It is
insufficient, therefore, that Pacheco's complaint pleads both breach of contract and negligence.
obligations are those imposed by law when a person breaches
duty which is independent
from promises made between the parties to a contract; contractual obligations are those that result
from an agreement between parties, which is breached." Id. (citing Sw.
Bell Tel. Co.
809 S.W.2d 493, 494 (Tex. 1991). "Where the only duty between parties arises from a contract, a
breach of this duty will ordinarily sound only in contract, not in tort."
97 S.W.3d 765, 777 (Tex.
City Nat'! Bank,
App.Corpus Christi 2003, no pet.). For negligence claims, "there
must be a violation of a duty imposed by law independent of any contract." Ortega, 97 S.W.3d at
St. Mary's moves for summary judgment on the grounds that the duties giving rise to
negligence are "identical and indistinguishable" from the breach of contract claims, which were
dismissed above. Def's Mot. 6. In other words, St Mary's argues that the substance of Pacheco's
claims sounds in contract, rather than tort, because the claim arises from allegations that St. Mary's
violated the Code of Conduct in its investigation and adjudication of the incident. Thus, according
to St. Mary's, "there is no recognizable common law or negligence claim as a matter of law." Id.
The negligence claim, therefore, should be dismissed.
This Court agrees that the substance of plaintiff's negligence claims sounds entirely in breach
of contract, rather than tort. The duties allegedly breached by St. Mary's arise from the Code of
Conduct, andas noted abovethose duties arise from an implied contractual agreement between
the parties here. Excepting the Title IX claims, there is no alleged violation of a duty imposed by
law; only duty imposed by the Code of Conduct.6 Thus, Pacheco's claims sound in contract.
Further, Pacheco presented no evidence that St. Mary's breached a duty arising under tort law, and
this Court may enter summary judgment on that basis alone. Finally, as noted above, Pacheco
failed to even address the negligence claims in his response. Thus, for reasons discussed above,
this Court also finds that plaintiff has abandoned his negligence claim by failing to address it in
his response to defendant's summary judgment motion The Court will therefore treat the motion
The Court addresses the Title Xi claims separately.
for summary judgment as to negligence as conceded. For all these reasons, defendant is entitled
to summary judgment on the negligence claim.
iii. Title IX
Pacheco's complaint also alleges violations of Title IX of the Education Amendments Act of
1972,20 U.S.C. § 1681 at seq. Title IX's relevant provisions state that "[nb person in the United
States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, Or be
subjected to discrimination under any education program or activity receiving Federal financial
assistance." 20 U.S.C.
1681(a).7 That provision is enforceable through an implied private right
of action, patterned after the Title VI of the Civil Rights Act of 1964's ban on racial discrimination
in the workplace and universities. Cannon
University of Chicago, 441 U.S. 677, 99 S.Ct. 1946,
60 L.Ed.2d 560 (1979).
The Court pauses to note that the body of law on private Title IX actions regarding a
university's procedures in investigating, adjudicating, and disciplining students for sexual assault
or sexual harassment is still developing.8 Generally, private challenges to disciplinary proceedings
under Title IX manifest themselves as one of four broad theories: (1) plaintiffs claiming an
erroneous outcome of a disciplinary proceeding, (2) plaintiffs claiming selective enforcement of
university procedures to students of different sexes, (3) plaintiffs claiming deliberate indifference
The parties do not dispute that defendant St. Mary's received Federal financial assistance sufficient to trigger the
applicability of Title IX here.
8Many cases borrow analysis &oin.a Second Circuit case: Yusufv. Vassar GoIL, 35 F.3d 709, 715 (2d Cir. 1994). The
parties here both cite to the same case. However, as noted by at least one district court, "there is no binding precedent
applying the erroneous outcome standard [or the other standards articulated in YusuJl in Title IX cases in the current
jurisdiction." Plummer v. Univ. of Houston, 2015 WL 12734039 * 14-15 (S.D. Tex. May 28, 2015). However, the
Fifth Circuit has cited Yusufwith some approval. See Canutiilo Indep. Sch. Dirt. v. Leya, 101 F.3d 393, 404 (5th Cir.
1996) (citing Yusçf among other cases, for the proposition that courts have adopted the same legal standards as Title
VII to review Title IC claims). Because both the parties here and the Fifth Circuit have borrowed from the analysis
in YUSUf this Court will do so as well.
to sexual harassment or sexual assault on campus, and (4) plaintiffs claiming a university's actions
based on archaic assumptions about the roles or behavior of men and women. Yusuf v. Vassar
35 F.3d 709. 715 (2d Cir. 1994) (recognizing Title IX claims for erroneous outcome and
selective enforcement); Davis v. Monroe
U.S. 629, 639(1999) recogniziag
liability for deliberate indifference that cause students to suffer harassment or make them
vulnerable to harassment); Pederson
La. St. Univ., 213 F.3d 858, 880-82 (5th Cir. 2000)
(recognizing classifications based on "archaic assumptions" are facially discriminatory and
constitute intentional discrimination in violation of Title IX).
However, regardless of the theory asserted, the heart of Title IX claims brought privately by
students against universities is often the disparate treatment
of male and female students by
universities that received Federal financial assistance. St. Mary's argues that Title IX claims are
governed by the McDonnell Douglas burden-shifting framework adopted in other discrimination
cases, and that Pacheco has not presented evidence supporting aprirnafacie case of discrimination
under Title IX. However, St. Mary's cites no binding authority for the application of McDonnell
Douglas to Title IX cases. The court therefore must first assess the applicability
Douglas in this case.
1. McDonnell Douglas and
To assess disparate treatment in other discrimination cases, courts use a burden-shifting
analysis first articulated by the Supreme Court in McDonnell Douglas Gorp.
Green, 411 U.S.
792,93 S.Ct. 1817,36 L.E.d.2d 668 (1973). In that case, the Supreme Court ruled that employment
discrimination plaintiffs bringing suit under Title VII of the Civil Rights Act of 1964 and related
statutes, must first establish a prima facie case of discrimination. The burden then shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. McDonnell
Douglas, 411 U.S. at 802-03; Texas Dept. of Comrnuiiity Affairs
Burdine, 450 U.S. 248, 252-
53(1981). The burden then shifts back to the plaintiff to establish that the legitimate reasons
offered were not the true reasons, but merely pretext for discrimination.
In Title VII cases, evidence of discriminatory intent may be direct or circumstantial. "Because
direct evidence is rare, a plaintiff ordinarily uses circumstantial evidence to meet the test set out in
McDonnell Douglas." Portis
First Nat. Bank ofNew Albany, 34 F.3d 325, 328 (5th Cir. 1994).
"The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the
plaintiff has his day in court despite the unavailability of direct evidence." Trans World Airlines,
Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985).
commonly, disparate treatment is raised as circumstantial evidence of discrimination.
example, in typical Title VII employment discrimination cases, a plaintiff establishes aprimafacie
case by showing he or she (1) is member of protected class, (2) was qualified for the position, (3)
was subject to adverse employment action, and (4) was treated less favorably than other similarly
situated employees, who were not members of the protected class, under nearly identical
circumstances. Lee v. Kansas City S. Ry. Co., 574 F.3d 253,259(5th Cir. 2009) (citing McDonnell
Douglas). The underlying inference here is that if persons of different classes are otherwise
similarly situated in nearly identical circumstances, the disparate treatment is likely the result of
discrimination. Thus, a prima facie case entitles plaintiffs to a temporary presumption that
defendants impermissibly discriminated on the basis of race, national origin, sex, etc... It then
falls to defendants to furnish nondiscriminatory reasons, and then back to plaintiffs to raise
evidence of pretext. Critically, "[a]lthough the intermediate evidentiary burdens shift back and
forth under this framework, 'the ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)
(quoting Burdine, 450 U.S. at 253).
At the outset, the Court notes the lack of guiding caselaw on Title IX claims in this and other
circuits. Admittedly, the application of the McDonnell Douglas framework has not expressly been
adopted by the Fifth Circuit in Title IX cases, and would not be relevant to cases involving direct
evidence of discrimination, See Trans World Airlines, Inc., 469 U.S. at 121 ("[Tjhe McDonnell
Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination."); Rizzo
Children's World Learning Centers, Inc., 84 F.3d 758, 762 (5th Cir. 1996) (bypassing the
McDonnell framework for an ADA claim with direct evidence of discrimination). However, the
McDonnell Douglas framework has been used by the Fifth Circuit in a variety of cases to assess
circumstantial evidence of discrimination by looking to disparate treatment of different classes of
people. See Vaughan
Woodforest Bank, 665 F.3d 632, (5th Cir. 2011) (applying McDonnell
framework to Title VII claims for race-based discrimination in employment); Long v. Easfield
Coil., 88 F.3d 300, 304-05 (5th Cir. 1996) (applying McDonnell framework to Title VII claims
for gender discrimination, national origin discrimination, and retaliation in employment);
PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (applying McDonnell
framework to ADEA claims for age-based discrimination); Burton
Inc., 798 F.3d 222, 240 (5th Cir. 2015) (applying McDonnell framework to ADA claims for
discrimination on the basis of disability); Brady v. Fort Bend cty, 145 F.3d 691, 712 (considering,
but not deciding, whether McDonnell framework has potential application in
patronage dismissals and free-speech retaliation in violation of the First Amendment); Simms
First Gibraltar Bank, 83 F.3d 1546, 1558 (5th Cir. 1996) (applying McDonnell framework to a
Fair Housing Act claim, noting there was no evidence presented that other applicants were treated
differently than complainant); Moore v. U.S. Dept. ofAgriculture, 55 F.3d 991,995 (5th Cir. 1995)
(assuming the normal applicability of McDonnell framework for Equal Credit Opportunity Act
credit discrimination claims, but finding that plaintiffs with direct evidence
entitled to "bypass" McDonnell and proceed directly to liability); Gaalla v. Brown, 460 Fed. Appx.
469, 479-80 (5th Cir. 2012) (reversing a district court for not applying McDonnell framework to
a § 1983 claim for race-based discrimination in violation of the Equal Protection Clause in the
absence of direct evidence
Further, courts look to the body of law developed under Title VI and Title VII to analyze sex
discrimination cases under Title IX. See e.g. Canutillo Indep. Sch. Dist,
Leija, 101 F.3d 393,
404(5th Cir. 1996) ("In reviewing claims of sexual discrimination brought under Title IX, whether
by students or employees, courts have generally adopted the same legal standards that are applied
to such claims under Title VII."); Yusufv Vassar roll., 35 F.3d 709, 714 (2d Cir. 1994) ("Because
the statutes share the same goals and because Title IX mirrors the substantive provisions of Title
VI of the Civil Rights Act of 1964, courts have interpreted Title IX by looking to the body of law
developed under Title VI, as well as the caselaw interpreting Title Vu4") (internal citations
omitted). Indeed, it appears that courts in other circuits have applied the familiar McDonnell
Douglas framework to address Title IX claims fOr disparate treatment based on sex in the absence
of direct evidence of sex-based discrimination.
F.3d 46, 55-56 (2d Cir.
2016); Mallory v. Ohio Univ., 76 Fed. Appx. 634, 641 (6th Cir. 2003) (suggesting that a plaintiff
alleging sex-based discrimination in the enforcement of school policies under Title IX "must
demonstrate that a female was in circumstances sufficiently similar to his own and was treated
more favorably by the University"). Accordingly, the Court
utilize the burden-shifting
Douglas framework to assess the Title IX claims that allege disparate treatment of
students based on sex.
Pacheco's complaintas wellas the gravanien of his response to summary judgmentalleges
that St. Mary's violated Title IX "in the manner in which it resolves allegations of sexual assault
by students in general, and in the case of Alfonso Pacheco in particular." Compi. 12. The Court
will first assess the allegations of "general" violations, before reaching the specifically alleged
violations regarding the Pacheco investigation and disciplinary proceedings.
"General" violations of Title IX
Pacheco alleged that St. Mary's violated Title IX "in the manner in which it resolves allegations
of sexual assault by students in general." Compi.
Specifically, Pacheco notes that
if not all cases of campus sexual assault, the accused student is male and the accusing
student is female" and that "the manner in which [St. Mary's] approaches the investigation,
adjudication, and appeal of allegations of sexual assault, creates an environment in which the
accused is so fundamentally denied due process as to be virtually assured of a finding of guilt."
Id. Thus, according to Pacheco, St. Mary's disciplinary system is biased towards
the detriment of the
accusedoften males. While the specifics of Pacheco's
argument is somewhat unclear, it resembles a claim of disparate
impactin which facially sex-
neutral procedures disproportionately affect students based on their
sexrather than a claim of
disparate treatmentin which actors intentionally treat similarly situated persons differently
because of their sex.
As discussed above, neither the Supreme Court, nor the Fifth Circuit, has squarely addressed
the full extent to which Title IX overlaps with Title VI or Title VII. That is, there is no binding
authority articulating whether Title IX provides a cause of action for disparate impact based on
sex discrimination. However, courts have interpreted Title IX by looking to the body of law
developed under Title VI. Fennel!
Marion Indep. Sc/i. Dist., 804 F.3d 398, 408 (5th Cir. 2015)
(recognizing that Congress modeled Title IX after Title VI, with the explicit understanding that it
would be interpreted as Title VI Was). Further, the Supreme Court has held that Title VI does not
provide a right of action for disparate impact claims because the relevant language applied only to
enforcing a prohibition against intentional discrimination. Alexander v Sandoval, 532 U.S. 275,
(2001). Accordingly, most courts have held that Title IX does not authorize disparate impact
claims because it imports Title Vi's limitation that plaintiffs may only being private suits to redress
intentional discrimination. E.g. Nat'! Wrestling coaches As. 'n
946 (D.C. Cir.
Dep 't of Educ., 366 F.3d 930,
2004) (distinguishing permissible Title IX claims for intentional discrimination
from disparate-impact claims), abrogated on other grounds by Perry Capital LLC v. Mnuchin, 848
F.3d 1072, 1101 (D.C. Cir. 2017); Forty. Dallas Indep. Sc/i. Dist., 82 F.3d414, 1996WL
at *4 (5th Cir. Mar.
1996) (unpublished) (noting a split on whether Title IX claims require
discriminatory intent, but holding that a Title IX plaintiff must establish intentional
discrimination); Manley v. Tex. S. Univ., 107 F. Supp. 3d 712, 726 (S.D. Tex. 2015) ("There is no
disparate impact claim under Title IX"); Doel
F. Supp. 3d
2017 WL 1831996, at n.3 (W.D. Tex. March 7, 2017) (presuming without deciding that intentional
discrimination is required for a Title IX claim); Doe v. Rector and Visitors ofGeorge Mason Univ.,
132 F. Supp. 3d 712, 732 (E.D. Va. 2015) (finding Sandoval foreclosed disparate impact claims
under Title VI and Title IX). Therefore, to the extent that Pacheco brings disparate impact claims,
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