Campus Due Process Litigation Tracker

Doe v. Washington University, No. 4:19-cv-00300 (E.D. Mo. Jan. 21, 2020)

School type: Private
State: Missouri
Federal Circuit: Eighth
Decision primarily favorable to: University
Stage of litigation: Motion to dismiss
Keywords: Biased statements, Due process, Erroneous outcome, Selective enforcement, State action, Title IX

The court granted the university’s motion to dismiss on all counts.

Plaintiff was expelled from the university for having sex with a female complainant, Jane Roe, who alleged that she was incapacitated and unable to consent to sex during their sexual encounter. According to Roe, she remembered sitting on Plaintiff’s couch having a drink, then later remembered vomiting in the bathroom and awakening to find Plaintiff’s penis inside her. Around the same time, two other female students (one of whom was Plaintiff’s ex-girlfriend) filed complaints against him as well; Plaintiff alleged that the students coordinated their complaints in an effort to have him expelled.

One of Plaintiff’s accusers published an anonymous editorial in the student paper criticizing the university’s lack of response to her alleged assault. In response, the Vice Chancellor of Students published a very sympathetic response, stating that she had also been the victim of a sexual assault and that “I am proud of the courage of our student to come forward. We have to support this student and every other student who needs our help.”

Jane Roe also wrote an editorial, alleging that she would not have been raped had the university taken action in response to the initial complaint about Plaintiff. This editorial sparked a protest (at which Roe appeared holding an “Expel my Rapist” sign) that Plaintiff argued affected his ability to receive to a fair process.

Pursuant to university policy, the university’s investigator issued a report to a hearing panel, which reviewed the report; interviewed Plaintiff, Jane Roe, and several witnesses; and found that Plaintiff had violated university policy by having sex with someone who “was incapacitated due to alcohol consumption at the time of sexual intercourse.” The panel found that Roe’s account of events was consistent and credible, and also supported by statements from witnesses who saw her later that morning. Plaintiff was expelled.

He brought suit alleging due process, Title IX, and various state law violations.

Although Washington University is private, Plaintiff argued that it was a state actor in this setting because it was performing the “public function” of investigating and prosecuting sexual assault. The court disagreed, finding that the university investigated and sanctioned Plaintiff for a conduct code violation, not for a criminal offense, which is something entirely different. The court also noted, citing other decisions on this point, that compliance with Title IX regulations does not transform a private university into a state actor.

Plaintiff also alleged that the university’s disciplinary process discriminated against him on the basis of sex, in violation of Title IX. First, he argued that the protests and editorials about his case created a hostile environment for him on campus. The court found, however, that Plaintiff had not plead facts suggesting the environment was hostile because of Plaintiff’s sex; rather, the court found that calling someone a rapist is not “inherently gendered,” and that there is no Title IX hostile-environment claim when a female student’s activism is a response to a specific act and is targeted at the alleged perpetrator, rather than at men in general.

Similarly, the court found that the Vice Chancellor’s statements “expressing concern or support for the victims of sexual assault is not evidence of gender bias.”

The court also dismissed Plaintiff’s deliberate indifference claim, holding that it was not even clear such a claim was applicable to campus disciplinary proceedings.

Plaintiff also brought a selective enforcement claim, which the court dismissed based on the fact that “Plaintiff has not identified a female student against whom a charge of sexual misconduct was filed who was not investigated and subjected to discipline.”

Finally, the court dismissed Plaintiff’s erroneous outcome claim on the grounds that he had neither plead facts casting articulable doubt on the outcome of the proceeding, nor facts suggesting gender bias. On the issue of articulable doubt, the court noted that Plaintiff himself had admitted that “he made Jane a drink containing at least 4.5 to 5.25 ounces of alcohol.” This admission, combined with the undisputed fact “that plaintiff had intercourse with Jane after she stated that she did not feel well and then vomited,” provided enough information for the panel to reasonably conclude that Plaintiff knew or should have known that Roe was too drunk to consent.

On the question of gender bias, the court (without much analysis) distinguished this case from Doe v. Columbia and a host of other cases in which courts have found that evidence of targeted pressure on a university to more aggressively address sexual misconduct is sufficient, at the motion to dismiss stage, to suggest gender bias.

With the federal claims dismissed, the court declined to exercise supplemental jurisdiction over Plaintiff’s state-law claims and dismissed them without prejudice.