Campus Due Process Litigation Tracker

Doe v. University of Denver, No. 18-1162 (10th Cir. Mar. 9, 2020)

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

The Tenth Circuit upheld the district court’s grant of summary judgment on Plaintiff’s due process and Title IX claims. This is a remarkable decision in that the court acknowledged, in great detail, why Plaintiff’s disciplinary proceeding appeared to have been “a railroading,” but still upheld the dismissal of Plaintiff’s claims.

The case stems from a report first made by the complainant’s boyfriend (although the complainant ultimately filed a complaint) six months after Plaintiff and the complainant had a sexual encounter. Plaintiff was found responsible for non-consensual sexual intercourse based on coercion.

The University of Denver is private, so Plaintiff’s due process claim was based on a state-action theory. However, Plaintiff sued under the Fourteenth, not the Fifth, Amendment, which does not encompass cases concerning “the federal government’s involvement with a private school or its decision to discipline students.” To successfully plead a Fourteenth Amendment claim, the court held, Plaintiff would have had to “adduce … evidence of a state’s involvement in the disciplinary proceeding he challenges.” (It is worth noting, however, that even state-action claims brought against private universities under the Fifth Amendment in similar cases have not survived).

The viability of Plaintiff’s Title IX claim turned entirely on whether the court felt that obvious anti-respondent bias — at a school where Plaintiff had presented evidence that 100% of respondents in recent years had been male — was sufficient to sustain a claim of gender bias.

The court first held that evidence of the pressure created by the 2011 Dear Colleague letter, and evidence of the pressure the university felt to comply, was insufficient on its own to constitute evidence of gender bias. Rather, Plaintiff would have also needed to show evidence “that would indicate that DU’s decision in his particular case was based on his gender,” which the court held he had not done.

Plaintiff did provide “statistical evidence showing an overwhelming disparity in the gender makeup of sexual-assault complainants and sexual-assault respondents at DU” — specifically, that “between 2011 and 2016, nearly all complainants (35 out of 36) were female, and all respondents (36 out of 36) were either listed as male or could be presumed to be male based on the nature of the complaint.” The court held, however, that there were many “nondiscriminatory explanations” for this disparity, so it could not be treated as evidence of gender bias absent “something like an affidavit from a knowledgeable person stating the school exhibits a pattern of prosecuting complaints against male but not female students.”

Absent evidence of gender bias, the court held that Plaintiff’s clear showing of anti-respondent bias could not sustain his Title IX claim. In a remarkable passage, the court — acknowledging that “there is not only evidence that the school exhibits an anti-respondent bias generally but also colorable evidence that the school employed that bias” in Plaintiff’s proceeding — held:

We are not unmindful that the combination of this statistical disparity and overt anti-respondent bias—a combination not unlikely to recur with some frequency at other schools—raises palpable concerns that schools might be making a distinction without a real difference and that stereotypes and prejudices against a class protected by Title IX (males) are beginning to infect the enforcement of sexual-misconduct policies under the auspices of presumptions regarding an unprotected class (respondents). Nevertheless, these concerns do not alter the obligation of a Title IX plaintiff opposing summary judgment to adduce evidence from which a reasonable factfinder could infer that the school’s proceeding was motivated by considerations of gender.