John Doe v. Oberlin College ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0195p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN DOE, ┐
Plaintiff-Appellant, │
│
> No. 19-3342
v. │
│
│
OBERLIN COLLEGE, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:17-cv-01335—Solomon Oliver, Jr., District Judge.
Argued: December 12, 2019
Decided and Filed: June 29, 2020
Before: GILMAN, KETHLEDGE, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Christopher C. Muha, KAISERDILLON PLLC, Washington, D.C., for Appellant.
Aaron M. Herzig, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellee.
ON BRIEF: Christopher C. Muha, KAISERDILLON PLLC, Washington, D.C., for Appellant.
David H. Wallace, Cary M. Snyder, TAFT STETTINIUS & HOLLISTER LLP, Cleveland,
Ohio, for Appellee.
KETHLEDGE, J., delivered the opinion of the court in which READLER, J., joined.
GILMAN, J. (pp. 13–22), delivered a separate dissenting opinion.
No. 19-3342 Doe v. Oberlin College Page 2
_________________
OPINION
_________________
KETHLEDGE, Circuit Judge. Any number of federal constitutional and statutory
provisions reflect the proposition that, in this country, we determine guilt or innocence
individually—rather than collectively, based on one’s identification with some demographic
group. That principle has not always been perfectly realized in our Nation’s history, but as
judges it is one that we take an oath to enforce. Here, the relevant statute is Title IX of the
Higher Education Act of 1965, which bars universities that receive federal funds from
discriminating against students based on their sex. John Doe argues that his complaint in this
case adequately stated a claim that Oberlin College did precisely that when it determined his
responsibility on a sexual-assault allegation. We agree, and reverse the district court’s decision
to the contrary.
I.
Given that this appeal comes to us on a motion to dismiss, we take as true all the factual
allegations in Doe’s complaint, and make all reasonable inferences in his favor. See Doe v.
Baum, 903 F.3d 575, 581 (6th Cir. 2018).
A.
Oberlin overhauled its sexual-assault policy in 2013-14, in response to a “very public
complaint” by a female student. That student had two complaints in particular: that the College
had taken too long to resolve her claim of sexual assault—thereby harming her emotionally—
and that her assailant had received too light a punishment (he was suspended rather than
expelled). The College formally adopted its revised Sexual Misconduct Policy in May 2015.
Relatedly, Oberlin instructed its faculty, “via an online resource guide,” that they should
“[b]elieve” students who report sexual assault, because “a very small minority of reported sexual
assaults prove to be false reports.”
No. 19-3342 Doe v. Oberlin College Page 3
The Policy adopted in May 2015 defines “Sexual Assault” as “[h]aving or attempting to
have intercourse or sexual contact with another individual without consent.” Intoxication
precludes consent only when it results in “incapacitation,” which the Policy defines as a
condition where the person “lack[s] conscious knowledge of the nature of the act” or “is
physically helpless.” Examples include when a person is “asleep, unconscious, or otherwise
unaware that sexual activity is occurring.” A website maintained by Oberlin’s “Office of Equity,
Diversity and Inclusion” reiterates that “[i]ncapacitation describes a level of intoxication in
which a person is unable to control their body or no longer understands who they are with or
what they are doing.” Charges of sexual assault based upon incapacitation also require “an
assessment of whether a Responding Party [i.e., the person accused], or a sober, reasonable
person in the Responding Party’s position, knew or should have known that the Reporting Party
was incapacitated.”
Allegations of sexual assault are handled by the school’s “Title IX Team,” which is led
by the school’s Title IX Coordinator. Members of the Title IX Team receive “annual training in
strategies to protect parties who experience sexual misconduct[,]” but no training as to “how to
conduct impartial fact-finding proceedings.” If the Title IX Team “determines that a claim must
be resolved through formal resolution,” a Hearing Coordinator “facilitate[s] the adjudication”
through a Hearing Panel. The Title IX Coordinator then oversees an investigation, which the
Policy says will “usually” be completed “within 20 business days.” If an investigation takes
longer, the Policy says, the College will “notify all parties of the reason(s) for the delay and the
expected adjustment in time frames.”
Upon receiving a report of the investigation, the Title IX Coordinator and the Hearing
Coordinator together decide whether to send the matter “to a Hearing Panel for resolution.”
Hearing panels have three members, and “make factual findings, determine whether College
policy was violated, and recommend appropriate sanctions and remedies.” The Title IX
Coordinator and Hearing Coordinator then determine what sanction, if any, to impose. The
entire process, the Policy recites, should normally be completed “within 60 business days”; if the
resolution takes longer, the Policy says again, the College will notify the parties “of the reason(s)
for the delay and the expected adjustment in time frames.”
No. 19-3342 Doe v. Oberlin College Page 4
B.
Professor Meredith Raimondo was named Oberlin’s Title IX Coordinator in 2013, while
the new Policy was being drafted. In 2014 she said she came to her work “committed to
survivor-centered processes.” During a panel discussion in 2015—in response to another
speaker’s comment about a “middle category” of cases, “where we’re not talking about . . . sex
with someone who is fundamentally unconscious”—Raimondo said that she is “uncomfortable”
with the term “grey areas[,]” because “I think it’s used too often to discredit particularly
women’s experiences of violence.”
In November 2015, the federal Department of Education’s Office of Civil Rights notified
Oberlin that the Office was investigating the College “to determine whether it had violated Title
IX in a recent sexual assault disciplinary proceeding.” That investigation was “not limited to the
complaint that occasioned it,” but was “a systemic investigation of the College’s policies,
procedures, and practices with respect to its sexual harassment and sexual assault complaint
process.” The investigation soon became “the focus of local media attention.” Shortly before
that notification, the Office’s director, Catherine Lhamon, told a national media publication that
“‘[w]e don’t treat rape and sexual assault as seriously as we should,’” citing data “about the rate
of unwanted sexual activity experienced specifically by college women.” Lhamon had also
recently warned university administrators that they could lose all their federal funding if they did
not heed the Office’s mandates, and elsewhere cited “‘a need to push the country forward.’”
C.
The incident at issue here occurred during the pendency of the Office’s investigation—in
the early morning of February 28, 2016. The complainant, referred to in this litigation as Jane
Roe, and the accused, referred to as John Doe, were both undergraduates at Oberlin. (Doe was
then a junior; the complaint does not specify when Roe matriculated.) The two students had met
at a party in December 2015, after which they spent the night in Doe’s room and had consensual
intercourse without a condom. For the next two months they had little interaction. On February
27, 2016, Roe went to a concert and then to at least one party afterward, where she consumed
alcohol. At 1:02 a.m. on February 28, Doe texted Roe, asking “what are you up to tonight?”
No. 19-3342 Doe v. Oberlin College Page 5
The two then exchanged nine texts during the next 30 minutes. Roe texted that she was “about
to smoke [marijuana]” in the residence hall where Doe had a room, and asked him, “[c]ool if I
come up in a bit?” Doe replied “yea” and the two arranged to meet in his room.
Roe arrived around 1:45 a.m. The two “briefly engaged in small talk” before making out
for “10-15 minutes” in Doe’s bed and taking off their clothes. Then, at Roe’s request, Doe put
on a condom, and the two had vaginal sex. They stopped when Roe said she was thirsty, at
which point Doe took off his condom, wrapped a towel around himself, and got some water for
her in the hallway. Then they resumed having sex, this time without a condom, until Roe said
she was “dry down there[,]” explaining, “I’m not sober.” Doe stopped the vaginal sex and asked
Roe if she would perform oral sex on him. Roe agreed. Afterward they engaged in small talk
and Roe left, saying she had a lot to do the next day.
Nine days later, Roe went to Raimondo and said that Doe had sexually assaulted her.
Raimondo did not inform Doe of the charge until a week later, when she told him, via email,
only that “the College is investigating a report” that Doe had sexually assaulted Roe “on 2/27/16
while she was incapacitated due to alcohol and unable to consent to sexual activity.”
Two days later, Raimondo appointed Joshua D. Nolan to investigate Roe’s allegations.
Even though the College’s policy states that investigation of a sexual-assault claim should
usually take no more than 20 days and resolution of the entire matter should take no more than
60, Nolan took 120 days just to issue an investigative report. Sixty-one days after the process
began, Doe emailed Raimondo as follows:
I really do feel as though I am at my wits end. . . . I have had sleepless nights,
eating problems and have been constantly thinking about this for the past months.
This has consumed my life. My grades have slipped and I am a shell of my
former self. . . . I cannot get in contact with Josh [Nolan] who has seemingly
disappeared. I have emailed him twice in the past week. . . . Finals is around the
corner and I simply cannot go through them with this looming over my head.
. . . Please help me.
Raimondo did not respond with any information—notwithstanding the Policy’s assurances that,
in such circumstances, the College will notify the parties “of the reason(s) for the delay and the
expected adjustment in time frames.”
No. 19-3342 Doe v. Oberlin College Page 6
Doe did not learn the substance of the allegations against him until July 7, 2016—more
than four months after the charge was made—when Nolan finally submitted his report. Nolan
had interviewed ten people “with knowledge of the events of February 27/28”—including Roe
and Doe—in addition to interviewing Raimondo. For the most part Roe’s account of what
happened in the room was consistent with Doe’s account, described above. But there were
several differences, which included Roe’s statement that, before the two engaged in vaginal sex,
Doe had asked her for oral sex, and Roe responded by asking him if he had a condom. Roe did
not mention saying she was thirsty or that Doe had gotten her water. She did say that Doe
“asked” her for oral sex again after they stopped having intercourse, and that she said, “okay, but
I’m not very sober right now”; and that during oral sex Doe “kept pushing her head down and
causing her to gag.” Separately, the report noted that, in a personal journal entry soon after the
incident, Roe wrote that Doe had “asked” her “to go down on him.”
Most of the other interviewees were friends of Roe. One said that Roe was “intoxicated”
that night but not “overly” so, and that Roe’s “speech was not slurred and she seemed steady on
her feet.” Another friend said Roe was “out of it” and “very distant.” A third friend, who saw
Roe immediately before the incident, said that she asked Roe, “You good?” Roe said “yes” and
walked off to Doe’s room.
Nolan also interviewed three of Roe’s friends who had talked to her after the incident.
One lived in the same residence hall as Doe; Roe visited her shortly after the incident, saying
“I can’t believe I was with” Doe and that she was “disappointed and upset that she had done
something.” This friend said that Roe’s speech was “slower” than usual but “not slurred[.]”
A second friend told Nolan that, on February 29, Roe told her that she had been “too intoxicated
to consent” to sex with Doe. Neither of these two friends said anything about Roe saying that
Doe had used force against her. A third friend said that, three or four days after the incident, Roe
asserted that Doe had “sexually assaulted” her by “forc[ing] oral sex on her.”
D.
The College thereafter sent the matter to a hearing panel, which set a hearing date of
October 5, 2016. A few days before that date, Doe asked the Title IX Team to assign him an
No. 19-3342 Doe v. Oberlin College Page 7
“advisor” for the hearing. Such an advisor, the College conceded at oral argument, is supposed
to serve the best interests of the accused at the hearing. The Title IX Team appointed Assistant
Dean Adrian Bautista as Doe’s advisor.
At the hearing itself, Roe testified mostly along the lines of what she had told Nolan, with
one major change: when asked whether Doe asked her to perform oral sex on him, she said
“No”—that he had not. Instead, she said at the hearing, “Doe simply grabbed her neck and
forced her mouth onto his penis after he stopped having vaginal intercourse with her.” As for
incapacitation, when asked how Doe would have known she was intoxicated, Roe said only, “I
made the statement, ‘I am not sober right now.’” In addition, when asked to “speak a little more
about why” she had asked Doe for a condom, she said, “[w]e were no longer clothed and I felt
that if anything was to continue happening, I wanted a condom.”
Three of Roe’s friends testified on her behalf. One was the friend whose room Roe had
visited after the incident; she testified consistently with her statement to Nolan, except that she
added that Roe was “not making sense with the sentences she was saying[.]” She also said that
Roe was upset about being with Doe, because she had a crush on a different student. A second
witness was the friend who asked Roe, “You good?”; in addition to what she had told Nolan, this
friend said that, in her observation, the situation “seemed pretty normal” and not “a potentially
bad situation.” A third friend testified as to how much Roe had drank that night, but said nothing
about whether she appeared incapacitated.
Doe’s testimony mirrored what he told Nolan. He specifically denied using any force on
Roe. Nolan himself also testified, and was asked whether he had “heard any testimony that
contradicted what he had been told [during] the investigation.” Nolan responded that he had
“heard just one contradiction”: namely, Roe’s testimony that Doe “had not asked her to perform
oral sex on him.” Nolan explained that, during the investigation, Roe testified that Doe “had in
fact asked this of her.”
As for advisor Bautista, he “left the hearing early.” Two weeks later, he retweeted:
“To survivors everywhere, we believe you.”
No. 19-3342 Doe v. Oberlin College Page 8
On October 6, 2016—about 240 days after Roe’s complaint—the hearing panel issued a
decision in which it found Doe responsible for sexual misconduct because “the preponderance of
the evidence established that effective consent was not maintained for the entire sexual encounter
that occurred on February 28, 2016.” Consent was absent, the panel found, because Roe was
incapacitated, as the Policy defined it, from the moment she told Doe that she was “not sober.”
The panel cited no other behavior supporting a finding either that Roe was incapacitated as
defined by the Policy or that Doe would have had any reason to think she was. Nor did the panel
mention the contradiction cited by Nolan, between what Roe told him (and several friends) and
what she told the hearing panel, as to whether Doe had “asked” for oral sex. As a sanction, the
panel recommended the most severe one: expulsion. The College accepted that
recommendation and ordered Doe expelled.
Doe appealed two weeks later, challenging on three grounds the panel’s findings. The
first was the newly discovered testimony of J.B., who had been Roe’s “best friend” before the
incident and was only “an acquaintance” of Doe. Roe had told J.B. (a male) about the incident
two days after it occurred, and asked J.B. to accompany her to her interview with Nolan, “as her
designated support person.” During that interview, J.B. was alarmed that Roe’s account to Nolan
differed dramatically from what she had told J.B. shortly after the incident. J.B. did not
comment during the interview on those differences, because doing so would have been
“awkward[,]” and because Nolan “had already told him he would call him back at some point to
interview him alone.” But “Nolan never did.” J.B. emailed Raimondo as soon as he heard about
the panel’s decision, saying that Roe had told him that Doe did not use force on her and that her
hearing testimony mischaracterized the nature of their interaction in other ways. Raimondo
apparently never responded. In support of the appeal itself, J.B. wrote a handwritten statement in
which he said, among other things, that he felt “morally compelled to come forward at this time”;
that “I know [Roe] provided false testimony”; and that Roe had told him that Doe “asked her to
‘go down’ on him and that she agreed to do so.”
A second ground of the appeal was a statement by H.H., a mutual friend of Roe and Doe,
who said that, as Roe was about to leave for Doe’s room, she “did not appear drunk” and that her
“speech was normal[.]” She too said that Roe had told her after the incident that Doe “asked”
No. 19-3342 Doe v. Oberlin College Page 9
Roe to “go down on him.” The third ground was a letter from Dr. Judith Esman, who stated, as
an expert, that Roe’s behavior that night gave Doe no reason to think she was incapacitated as
defined by the Policy. Doe also challenged his sanction as too severe.
The College denied Doe’s appeal about a month later, dismissing the statements of J.B.
and H.H. as largely cumulative, and Dr. Esman’s letter as largely irrelevant. The College also
upheld the sanction of expulsion, “with almost no explanation.”
E.
Doe thereafter brought this lawsuit, claiming that the College’s “egregious misapplication
of the Policy’s definition of ‘incapacitation’” was the result of sex discrimination in violation of
Title IX. Doe also brought claims for breach of contract (the Policy itself being the contract) and
negligence under Ohio law. The district court dismissed Doe’s claim under Title IX for failure
to state a claim, and declined to exercise supplemental jurisdiction over the state-law claims
(mistakenly, all agree, given that the court had diversity jurisdiction over those claims). This
appeal followed.
II.
We review de novo the district court’s dismissal of Doe’s complaint. See Baum,
903 F.3d at 580. “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted).
Doe sued Oberlin under Title IX, which bars universities that receive federal funds “from
discriminating against students on the basis of sex.” Baum, 903 F.3d at 585. Doe asserts in
particular an “erroneous outcome” claim, which is that a university reached “an erroneous
outcome in a student’s disciplinary proceeding because of the student’s sex.” Id. To state a
claim under that theory, “a plaintiff must plead facts sufficient to (1) cast some articulable doubt
on the accuracy of the disciplinary proceeding’s outcome, and (2) demonstrate a particularized
causal connection” between the flawed outcome and sex discrimination. Id. (internal quotation
marks and ellipses omitted).
No. 19-3342 Doe v. Oberlin College Page 10
Here, everyone agrees that Doe pled facts casting doubt on the accuracy of his
proceeding’s outcome. The question, then, is whether he pled facts plausibly suggesting that
outcome was caused by sex bias.
As an initial matter, Oberlin argues that, to show a “particularized causal connection”
between the flawed outcome and sex bias, Doe must identify some bias unique to his own
proceeding. But that argument misreads our precedents. We have never held that, to be
“particularized” in this sense, the effects of the causal bias must be limited to the plaintiff’s own
case. To the contrary, for example, we have held that “patterns of decision-making” in the
university’s cases can show the requisite connection between outcome and sex. Doe v. Miami
Univ., 882 F.3d 579, 593 (6th Cir. 2018) (emphasis added). Otherwise, a university that
categorically discriminates against men or women in sexual-assault proceedings could escape
liability in erroneous-outcome cases. What Doe must show here, rather, is simply that he alleged
facts supporting an inference of sex bias in his particular proceeding.
For any number of reasons, we hold that he did. We begin with the “clear procedural
irregularities” in the College’s response to the “allegations of sexual misconduct,” which, as the
Second Circuit has held, “will permit a plausible inference of sex discrimination.” Menaker v.
Hofstra Univ., 935 F.3d 20, 33 (2d Cir. 2019). The College’s own Policy states that usually its
investigation will be completed in 20 days, and the matter as a whole will be resolved in 60. But
here the investigation alone took 120 days; Doe was not even informed of the specific allegations
against him for that same period; and the hearing panel did not reach a decision until about 240
days after the complaint, which was 180 days later than contemplated by the Policy. That delay
was compounded by the College’s failure to do what the Policy twice promised it would do,
namely to notify the parties “of the reason(s) for the delay and the expected time frames.” Those
omissions were especially strange given that those promises were included in the Policy
precisely because, in 2012, a female student had understandably complained about the emotional
harm caused by the College’s delay in resolving the proceeding in which she was involved. And
those omissions were stranger still given that Doe pleaded with Raimondo via email about the
emotional devastation wrought by the delays in his proceeding—and received little or no
No. 19-3342 Doe v. Oberlin College Page 11
response. Remarkable as well was advisor Bautista’s performance, given that he did not even
attend the entire hearing, even though his role was to assist Doe there.
Likewise remarkable—in a proceeding in which the credibility of accuser and accused
were paramount—was the failure of the hearing panel even to comment on the flat contradiction,
expressly noted by Nolan at the hearing, between what Roe told him during his investigation and
what she said during the hearing, regarding whether Doe “asked” for oral sex. Cf. Baum, 903
F.3d at 586. And of a piece was the Appeals Officer’s failure even to acknowledge the
importance of J.B.’s statement as impeachment evidence regarding Roe’s claims. Procedural
irregularities provide strong support for Doe’s claim of bias here.
Doe’s claim also finds support from his allegation that—throughout the pendency of his
disciplinary proceeding—the federal Department of Education’s Office of Civil Rights was
engaged in “a systemic investigation of the College’s policies, procedures, and practices with
respect to its sexual harassment and sexual assault complaint process.” For “pressure from the
government to combat vigorously sexual assault on college campuses and the severe potential
punishment—loss of all federal funds—if [the College] failed to comply” can likewise yield “a
reasonable inference” of sex discrimination. Miami Univ., 882 F.3d at 594. Oberlin contended
at oral argument that we should reject that inference here, because Raimondo “welcomed” the
federal investigation. But on this record, suffice it to say, that fact could cut either way.
Doe’s complaint also cites Oberlin’s “Spring 2016 Campus Climate Report,” which
stated that—during the very academic year in which Doe’s “responsibility” was determined—
“every single case” that went to a hearing panel resulted in a decision that the accused was
“responsible” (i.e., guilty) on at least one charge. That statistic likewise supports Doe’s claim.
See Miami Univ., 882 F.3d at 593. Oberlin responds that only 10 percent of sexual-assault
complaints were resolved through a formal hearing that year. But Doe reads that same Report to
mean that, in 80 percent of the cases, the complainant herself chose not to pursue the matter
formally. In still other cases, the responding party had graduated or otherwise left the College.
And in any event the 100 percent responsibility rate—in cases where most if not all the
respondents were male—supports an inference regarding bias in the hearings themselves.
No. 19-3342 Doe v. Oberlin College Page 12
But Doe’s strongest evidence is perhaps the merits of the decision itself in his case. True,
the first element of an erroneous-outcome claim—whether the facts of the case “cast some
articulable doubt on the accuracy of the disciplinary proceeding’s outcome[,]” Baum, 903 F.3d at
585—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. Cf. Doe v. Purdue Univ., 928 F.3d 652, 669
(7th Cir. 2019) (reasoning that a “perplexing” basis of decision can support an inference of sex
bias). And on the merits here the panel’s decision was arguably inexplicable. Per the terms of
Oberlin’s Policy, intoxication does not negate consent—only “incapacitation” does. The Policy
rather precisely defines that term. And the record here provided no apparent basis for a finding
that Roe “lack[ed] conscious knowledge of the nature of the act” of oral sex, or that she was
“asleep, unconscious, or otherwise unaware that sexual activity [was] occurring[,]” or that she
“no longer underst[ood] who [she was] with or what [she was] doing.” Nor was there any
apparent reason for Doe to perceive that Roe was in such a state. To the contrary, Roe was
conscious and aware enough to engage in a coherent exchange of texts, to make small talk, and
to reason that, “[w]e were no longer clothed and I felt that if anything was to continue
happening, I wanted a condom.” Thus, on this record—and making all inferences in Doe’s favor
at this stage of the litigation—one could regard this as nearly a test case regarding the College’s
willingness ever to acquit a respondent sent to one of its hearing panels during the 2015-16
academic year. Doe has amply stated a claim for sex discrimination in violation of Title IX.
* * *
The district court’s March 31, 2019 Order is reversed, and the case is remanded for
further proceedings consistent with this opinion.
No. 19-3342 Doe v. Oberlin College Page 13
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DISSENT
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RONALD LEE GILMAN, Circuit Judge, dissenting. This circuit has articulated a two-
part test that a plaintiff must meet in order to survive a motion to dismiss under the Title IX
erroneous-outcome theory. Doe v. Baum, 903 F.3d 575, 585 (6th Cir. 2018). Under that test, “a
plaintiff must plead facts sufficient to (1) ‘cast some articulable doubt’ on the accuracy of the
disciplinary proceeding’s outcome, and (2) demonstrate a ‘particularized . . . causal connection
between the flawed outcome and gender bias.’” Id. (quoting Doe v. Miami Univ., 882 F.3d 579,
592 (6th Cir. 2018)).
I fully agree with the majority that Doe has raised a colorable claim as to the first prong
of this test. The key problem that I see with the majority’s opinion, however, is that it proceeds
to conflate the two prongs. In fact, the opinion flatly states that “Doe’s strongest evidence is
perhaps the merits of the decision itself in his case.” Maj. Op. at 12. But our previous caselaw
makes clear that “allegations of a procedurally or otherwise flawed proceeding that has led to an
adverse and erroneous outcome combined with a conclusory allegation of gender discrimination
is not sufficient to survive a motion to dismiss.” Doe v. Cummins, 662 F. App’x 437, 452 (6th
Cir. 2016) (emphasis added) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)).
And this court has explicitly rejected the lower pleading standard that the majority now adopts.
See Miami Univ., 882 F.3d at 589 (“Whatever the merits of the Second Circuit’s decision in [Doe
v.] Columbia University, [831 F.3d 46 (2d Cir. 2016),] to the extent that the decision reduces the
pleading standard in Title IX claims, it is contrary to our binding precedent.”). I therefore
dissent from the majority’s conclusion that Doe has pleaded facts sufficient to establish an
inference of gender bias.
I. The merits of Oberlin’s decision as a measure of gender bias
The majority cites Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019), for the
proposition that, “when the degree of doubt passes from ‘articulable’ to grave, as a matter of
common sense the merits of the decision itself can support an inference of sex bias,” and that
No. 19-3342 Doe v. Oberlin College Page 14
“a ‘perplexing’ basis of decision can support an inference of sex bias.” Maj. Op. at 12 (emphasis
in original) (quoting 928 F.3d at 669). But not only is Purdue University an out-of-circuit
opinion and therefore not binding on this court, it nowhere uses the word “articulable.” And
Purdue University never calibrates the degree of doubt as passing from “articulable” to “grave.”
The opinion’s use of the word “perplexing,” moreover, see 928 F.3d at 669, did not cause it to
hold that a perplexing decision can generally support an inference of gender bias.
Purdue University instead held that the extreme departure from typical adjudicatory
norms in that case was so perplexing that it supported an inference of gender bias. In Purdue
University, the administrator “chose to credit Jane’s account without hearing directly from her,”
and “Jane did not even submit a statement in her own words to the Advisory Committee.” Id.
Purdue’s advisory committee also “took no other evidence into account. They made up their
minds without reading the investigative report and before even talking to John.” Id. In the
present case, in contrast, the hearing committee heard from both Doe and Roe, and it took the
report of the investigator—an outside, male, independent attorney—into account. The
adjudicatory circumstances before us, in order words, are not near as “perplexing” as those in
Purdue University.
Purdue University’s extreme circumstances were later noted by the Seventh Circuit in
Doe v. Columbia College Chicago, 933 F.3d 849 (7th Cir. 2019), where the court held that a
male plaintiff had not adequately pleaded gender bias on the part of the university that had found
him guilty of sexual assault. The court distinguished Purdue University by pointing out that
“[t]wo members of the panel [in Purdue University] candidly stated that they had not read the
investigative report. The one who apparently had read it asked John accusatory questions that
assumed his guilt. Because John had not seen the evidence, he could not address it.” Id. at 855
(quoting Purdue University, 928 F.3d at 658). In Columbia College Chicago, by contrast, these
problems were not apparent. See id. at 856 (noting that Doe was permitted to access the
investigative materials). So too in the present case: Doe was permitted to access the materials
and information submitted; it just took longer than he had anticipated. But nowhere does Doe
allege that this delay occurred only for male students, or that the process was different for men.
See id. (“[John did] not allege that females accused of sexual assault were allowed to review
No. 19-3342 Doe v. Oberlin College Page 15
materials or that only female victims were allowed to review them.”). Oberlin’s delay, without
any proof that these delays happened only to male students, cannot support a finding of gender
bias.
II. Claims of procedural irregularities
This leaves the majority’s two other major points. One addresses Doe’s claims of
procedural irregularities. The majority cites Menaker v. Hofstra University, 935 F.3d 20 (2d Cir.
2019), for the proposition that procedural irregularities can support an inference of gender bias.
Menaker, in turn, relied on the reasoning of Columbia University, 831 F.3d 46, the very case that
our circuit has rejected for lowering the Title IX pleading standard. See Miami Univ., 882 F.3d
at 589. The majority’s reliance on Menaker is thus highly questionable, especially because the
case is easily distinguishable.
In Menaker, a male tennis coach alleged “that Hofstra [University] completely
disregarded the process provided for in its written ‘Harassment Policy,’” which provided “for a
‘Formal Procedure’” to investigate allegations of harassment and assault. 935 F.3d at 34–35.
Menaker claimed “that he received none of these procedural protections.” Id. at 35. He alleged
“that he was terminated despite the fact that Hofstra Vice President Jefferey Hathaway knew that
at least one of the accusations against him was false and believed the complaint to be a ‘ploy.’”
Id. at 34 (emphasis in original). Menaker further claimed “that his supervisor was aware of [his
accuser’s] frustration regarding her scholarship and her attempts to manipulate the athletic
department in the spring of 2016.” Id. And despite an express promise that Menaker would
receive a copy of the investigative report, he never did. Id. Against this backdrop, the Second
Circuit concluded that the procedural irregularities supported an inference of gender bias. Not so
in the present case, where Doe received almost all of the protections and procedures outlined in
Oberlin’s manual. The process was admittedly not perfect, but Doe had a hearing, received a
copy of the investigative report, and was permitted to present his story. In sum, Menaker does
not support the majority’s conclusion that gender bias has been adequately pleaded.
The majority also cites the time frame of the investigation as supporting procedural
irregularities. But Oberlin’s Sexual Misconduct Policy explicitly notes that individual cases
No. 19-3342 Doe v. Oberlin College Page 16
might require a longer time frame. Admittedly, Oberlin should have notified Doe in writing that
the investigation and resolution were taking longer than the 20 days and the 60 days,
respectively, stated as goals in the Policy. Oberlin, however, apparently failed to notify either
party of the reason for the delay.
In fact, the majority points out that Oberlin had previously been criticized by a female
student for its delay in resolving the sexual-assault proceeding in which she was involved. Maj.
Op. at 10. The Policy was ostensibly adopted to address that criticism, but Doe has not alleged
any link between the delay or lack of notice and gender bias. In the absence of any such link,
Oberlin’s delay in resolving his case should have no bearing on our analysis.
III. Alleged pressure from the Department of Education
The majority’s other major point involves alleged outside pressure on Oberlin. It cites
Miami University for the proposition that “‘pressure from the government to combat vigorously
sexual assault on college campuses and the severe potential punishment—loss of all federal
funds—if [the College] failed to comply’—can likewise yield ‘a reasonable inference of sex
discrimination.’” Maj. Op. at 11 (quoting 882 F.3d at 594). This characterization, in my
opinion, overstates the holding of the Miami University decision.
Although the court in Miami University did consider the pressure from the government as
one piece of its analysis, it was just that: one piece. Our caselaw makes clear that “external
pressure [from the government] alone is not enough to state a claim that the university acted with
bias in [any] particular case. Rather, it provides a backdrop that, when combined with other
circumstantial evidence of bias . . . , [can] give[] rise to a plausible claim.” Doe v. Baum,
903 F.3d 575, 586 (6th Cir. 2018).
In other words, the court can consider whether there was pressure from the federal
government, but that pressure alone cannot yield a reasonable inference of gender discrimination.
See Doe v. Univ. of Dayton, 766 F. App’x 275, 281 (6th Cir. 2019) (“[A]lleging that a university
adopted certain procedures due to pressure from the federal government is not enough on its own
. . . .”) (citing Doe v. Cummins, 662 F. App’x 437, 452–53 (6th Cir. 2016)). And in Miami
University, that pressure was coupled with other key factors that are not present in this case.
No. 19-3342 Doe v. Oberlin College Page 17
One of those key factors in Miami University was that both parties to the encounter in
question were alleged to have been highly intoxicated. 882 F.3d at 584, 586, 592. Yet the
university launched an investigation regarding only the male, and not regarding the female. Id.
at 593–94. In addition, the accused male in Miami University introduced statistical evidence
showing that every male accused of sexual misconduct during the past two semesters was found
responsible for the alleged violation. Id. at 593. He also presented an affidavit from an attorney
who had represented many students in disciplinary proceedings, with the attorney alleging a
pattern of the university pursuing investigations concerning male students but not female
students. Id. As discussed more fully below, Doe introduced no comparable statistical evidence
in the present case.
In sum, the court in Miami University considered the pressure from the federal
government as just one factor set against a backdrop of uneven enforcement. Id. We have no
comparable evidence of uneven enforcement in the case before us.
IV. Lack of a particularized causal connection regarding gender bias
I now turn to the question of whether Doe has sufficiently pleaded an inference of gender
bias in accordance with the law of this circuit. Sixth Circuit caselaw makes clear that a plaintiff
must allege a particularized causal connection between the flawed outcome and gender bias.
Baum, 903 F.3d at 585 (quoting Miami Univ., 882 F.3d at 592). Evidence to support such a
causal connection “might include, inter alia, statements by members of the disciplinary tribunal,
statements by pertinent university officials, or patterns of decision-making that also tend to show
the influence of gender.” Miami Univ., 882 F.3d at 593 (citation omitted). Doe alleges that
statements made by Dr. Meredith Raimondo and statistical evidence support this causal
connection. But both the record and the law of this circuit are to the contrary.
A. Dr. Raimondo’s statements
As to Dr. Raimondo, the majority selectively quotes a statement that she made during a
panel discussion in 2015 to the effect that she was “‘uncomfortable’ with the term ‘grey areas[,]’
because ‘I think it’s used too often to discredit particularly women’s experiences of violence.’”
No. 19-3342 Doe v. Oberlin College Page 18
Maj. Op. at 4. The majority leaves out, however, the full panel discussion, during which Dr.
Raimondo made the following additional remarks:
What are the spaces, for example, for men to come forward and report gender-
based harms? . . . When our procedures assume that women are the only people
who report, we shut that space down even further.
American Constitution Society, Sex, Lies and Justice: A Discussion of Campus Sexual Assault,
Title IX Compliance, and Due Process, YouTube (June 23, 2015),
https://www.youtube.com/watch?v=EbmfXvd_6gw (33:38–50) (last visited June 15, 2020)
(emphasis added). She further stated:
All students are our students, regardless of what role they may play in this, and
for me the question and the goal of these processes has to start with this: for a
student who comes forward to make a report, a safe, supportive space for
someone to ask, what are the harms that you experienced and how can we address
them so you can continue your education. And for the student who is accused, the
question is also important and needs to be met I think equally with respect and
dignity, but my question for that student is: What, if anything, in your conduct are
you willing to be accountable for and how can you be responsible for the harm
you’ve done to others, if in fact that was the result of your conduct? Hearings are
a tool or a technique for answering those big questions.
Id. (29:33–30:23) (emphases added). I fail to see how these comments as a whole could support
an inference of gender bias against men. If anything, they demonstrate a balanced and
thoughtful approach that treats men and women equally.
B. Statistical evidence
The majority opinion also cites the statistic that “‘every single case’ that went to a
hearing panel resulted in a decision that the accused was ‘responsible’ (i.e., guilty) on at least
one charge.” Maj. Op. at 11. But as Oberlin points out, approximately 10% of roughly 100
complaints related to sex-based misconduct even made it to the hearing stage. In other words,
approximately 90% of cases did not lead to a finding of responsibility or any kind of disciplinary
action.
No. 19-3342 Doe v. Oberlin College Page 19
The majority further notes that Doe reads Oberlin’s 2016 Campus Climate Report to
mean that, in 80% of these complaints, the complainant chose not to formally pursue the matter.
Maj. Op. at 11. But the Report says nothing to that effect. It instead states the following:
Most parties making reports ask for various remedies but also request that the
College take no disciplinary action . . . . About 20 percent of all reports in 2015–
16 were referred to full investigation, and if appropriate, formal investigation.
The threshold to move to formal process was met in around half of investigations
....
Although the Report acknowledges that “most parties” requested no disciplinary action,
nothing in the Report suggests that a full 80% chose not to formally pursue their complaints. In
other words, the 20% of the complaints referred to full investigation in no way implies that the
other 80% were dropped because of a lack of pursuit by the complainants.
The majority also states that there is a “100 percent responsibility rate” at the hearing
stage. Maj. Op. at 11. But “responsibility” in this context has a very broad meaning. In each of
these approximately 10 cases, the accused was found responsible on at least one charge, but not
all of them. Only 70% of respondents were found responsible on all charges. And the
“penalties” ranged widely—from “education” to expulsion. As the Report states:
When the threshold was met, findings of responsibility on all charges occurred in
70 percent of processes. In the remaining processes, the responding party was
found responsible for some but not all of the conduct charges. Sanctions have
ranged from deferred probation and education to dismissal . . . .
In addition, these cases included all forms of potential sex-based misconduct—not only sexual
assault, but also discrimination, harassment, retaliation, stalking, and/or intimate partner
violence.
I would further note that disciplinary hearings in approximately 10 cases is not a
statistically significant number from which this court can make any kind of conclusion about
gender bias. See Doe v. Cummins, 662 F. App’x 437, 454 (6th Cir. 2016) (“[N]ine cases is
hardly a sufficient sample size for this court to draw any reasonable inferences of gender bias
from these statistics.”).
No. 19-3342 Doe v. Oberlin College Page 20
Finally, we have no information regarding the gender breakdown between who was
found responsible and who was not. Doe alleges that the vast majority of the Oberlin students
accused of sexual misconduct were men. But, as the district court aptly noted:
This by itself is not indicative of discrimination or bias against men. Plaintiff
does not claim that only men were found responsible for misconduct. As outlined
in Doe v. Univ. of Dayton, this is “not the type of pattern that would show an
improper influence of gender. Indeed, this sadly, is just what the court would
expect. According to the Department of Justice, over 95% of sexual assaults are
perpetrated by males, while fewer than 3% are by females.” Doe v. Univ. of
Dayton, No. 3:17-CV-134, 2018 WL 1393894, at *9 (S.D. Ohio 2018). A pattern
that would support a claim of gender bias would involve sexual assault
accusations against women that were not investigated or adjudicated by the
College. Id. Plaintiff makes no such claim here.
(Emphasis in original.)
Our caselaw has repeatedly emphasized the above point. See, e.g., Cummins, 662 F.
App’x at 453 (explaining that “the most obvious reasons for the disparity between male and
female respondents in . . . sexual-misconduct cases . . . [are that the college] has only received
complaints of male-on-female sexual assault, and . . . males are less likely than female to report
sexual assaults” (citation and internal quotation marks omitted)); see also Doe v. Univ. of
Denver, 952 F.3d 1182, 1193–94 (10th Cir. 2020) (“The courts that have engaged in this analysis
have generally concluded that statistical disparities in the gender makeup of complainants and
respondents can readily be explained by ‘an array of alternative’ nondiscriminatory possibilities,
potentially ‘reflect[ing], for example, that male students on average . . . committed more serious
assaults,’ that sexual-assault victims are likelier to be women, or that female victims are likelier
than male victims to report sexual assaults.”) (collecting cases). Without allegations that accused
students who are male are found guilty more frequently than accused students who are female,
Doe has failed to allege any pattern of gender bias.
V. The law of other circuits
This brings me to my final point. The Sixth Circuit is far from alone in its requirement
that a plaintiff show a particularized causal connection. In fact, the vast majority of other courts
that have considered this question have required proof of a causal connection between an alleged
No. 19-3342 Doe v. Oberlin College Page 21
erroneous outcome and gender bias. See, e.g., Doe v. Trustees of Bos. Coll., 892 F.3d 67, 91 (1st
Cir. 2018) (“To show this causal link [between an outcome and gender bias], the Does cannot
merely rest on superficial assertions of discrimination, but must establish that ‘particular
circumstances suggest[ ] that gender bias was a motivating factor.’” (citation omitted)); Doe v.
Loh, Civ. A. No. PX-16-3314, 2018 WL 1535495, at *8 (D. Md. Mar. 29, 2018) (“To sustain
what is known as an ‘erroneous outcome’ claim, Doe must plausibly aver: (1) that he was
subjected to a procedurally or otherwise flawed proceeding, (2) which has led to an adverse and
erroneous outcome; and (3) the particular circumstances suggest that gender bias is the
motivating factor behind the erroneous finding.” (citation and internal quotation marks omitted)),
aff’d, 767 F. App’x 489 (4th Cir. 2019); Doe v. Univ. of Miss., 361 F. Supp. 3d 597, 607 (S.D.
Miss. 2019) (“A ‘[p]laintiff[] who claim[s] that an erroneous outcome was reached must allege
particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the
disciplinary proceeding.’ Additionally, the plaintiff must ‘allege particular circumstances
suggesting that gender bias was a motivating factor behind the erroneous finding . . . . Such
allegations might include, inter alia, statements by members of the disciplinary tribunal,
statements by pertinent university officials, or patterns of decision-making that also tend to show
the influence of gender.’” (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994));
Austin v. Univ. of Or., 925 F.3d 1133, 1138 (9th Cir. 2019) (“Even if the outcome of the
administrative conference procedure was erroneous, the complaint is missing any factual
allegations that show that sex discrimination was the source of any error.”); Doe v. Valencia
Coll., 903 F.3d 1220, 1236 (11th Cir. 2018) (“[A] student must show both that he was ‘innocent
and wrongly found to have committed an offense’ and that there is ‘a causal connection between
the flawed outcome and gender bias.’” (citation omitted)); Robinson v. Howard Univ., Inc., 335
F. Supp. 3d 13, 27 (D.D.C. 2018) (“[A]llegations of a procedurally or otherwise flawed
proceeding that has led to an adverse and erroneous outcome combined with a conclusory
allegation of gender discrimination is not sufficient to survive a motion to dismiss.” (citation
omitted)), aff’d sub nom. Robinson v. Wutoh, 788 F. App’x 738 (D.C. Cir. 2019).
This viewpoint by almost all of the courts that have opined on this issue is unsurprising.
Such an approach is fully consistent with the text of Title IX itself, which requires a plaintiff to
show that he or she was subjected to discrimination “on the basis of sex.” 20 U.S.C. § 1681(a).
No. 19-3342 Doe v. Oberlin College Page 22
There are numerous reasons why a college’s disciplinary process might yield a result that seems
incorrect or unfair—sloppy analysis by overworked administrators, administrative processes that
do not mirror those of the judicial system, details that simply do not make it into the college’s
disciplinary record—and to assume that those results were the result of gender bias reads out the
causal requirement in Title IX. It also conflicts with the well-established principle “that school-
disciplinary committees are entitled to a presumption of impartiality, absent a showing of actual
bias,” see Doe v. Cummins, 662 F. App’x 437, 449–50 (6th Cir. 2016) (collecting cases)
(emphasis added), and that “[a]ny alleged prejudice on the part of the [decisionmaker] must be
evident from the record and cannot be based in speculation or inference,” id. at 450 (brackets in
original) (quoting Nash v. Auburn Univ., 812 F.2d 655, 665 (11th Cir. 1987)). Yet, in my
opinion, this is exactly what the majority has done here: speculate. Absent an allegation of
some particularized facts linking gender bias to Oberlin’s disciplinary practices or proceedings, I
respectfully dissent as to the viability of Doe’s Title IX claim.