Campus Due Process Litigation Tracker

Doe v. University of Denver, No. 1:17-cv-01962 (D. Colo. Aug. 20, 2019)

School type: Private
State: Colorado
Federal Circuit: Ninth
Decision primarily favorable to: University
Stage of litigation: Motion for summary judgment
Keywords: Biased statements, Due process, State action, Title IX, Training materials

University’s motion for summary judgment granted.

This is a ruling that relies heavily on the distinction between bias against the accused and gender bias. After learning from an RA that a female student, Jane Roe, had gone to the hospital for an exam by a Sexual Assault Nurse Examiner (SANE), DU’s Title IX coordinator Jean McAllister reached out to Roe by email, stating “I understand that you have experienced a sexual assault by another DU student.” That student, John Doe, was eventually found responsible for sexual misconduct and expelled from DU.

He filed suit against the university claiming he had been discriminated against on the basis of sex in violation of Title IX, and that DU was, in adjudicating sexual misconduct claims, functioning as a state actor that denied him his due process rights.

Plaintiff’s gender-bias claim was based on a number of things, including McAllister’s initial email to Jane Roe that effectively conceded an assault had occurred, as well as her use of the terms “survivor” and “victim” in emails related to the investigation and in materials used to train adjudicators.

The court did not deny that these things could mean that the university had a bias towards complainants in sexual misconduct cases, but repeatedly emphasized that complainants can be both male and female and that the university had used gender-neutral language throughout. Therefore, the court held, Plaintiff had failed to show any evidence of gender bias.

With regard to Plaintiff’s due process claim, the court rejected the idea that the 2011 Dear Colleague Letter transformed private schools into state actors in the context of Title IX adjudications, and dismissed that claim as well.