Argued: November 29, 2017
from the United States District Court for the Southern
District of Ohio at Cincinnati. No. 1:15-cv-00605-Michael R.
Barrett, District Judge.
John Rosenberg, ROSENBERG & BALL CO. LPA, Granville,
Ohio, for Appellant.
T. Priestle, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati,
Ohio, for Appellees.
John Rosenberg, ROSENBERG & BALL CO. LPA, Granville,
Ohio, for Appellant.
T. Priestle, Doreen Canton, TAFT STETTINIUS & HOLLISTER
LLP, Cincinnati, Ohio, for Appellees.
Before: GUY, MOORE, and ROGERS, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
fall of 2014, John Doe and Jane Doewere students at Miami
University, a public university located in Oxford, Ohio. The
two students knew each other and had engaged in several
consensual "physical encounters." This case arises
from an incident between John and Jane on September 14, 2014.
Both parties had consumed alcohol, and John states that he
was so intoxicated that he cannot remember what occurred.
According to Jane's statement, the two engaged in some
consensual sexual acts, but at some point Jane stopped
consenting and John continued to engage in then
non-consensual sexual acts for some period of time before he
stopped. This accusation of sexual misconduct was evaluated
by Miami University, and John was found responsible for
violating the school's sexual-assault policy. He was
initially suspended for approximately eight months, but this
suspension was reduced by the University on appeal to four
months. After the University's appeals process affirmed
the original finding of responsibility, John brought suit
against Jane, Miami University, and individual University
employees who had been part of the disciplinary process. John
voluntarily dismissed his claims against Jane after the two
parties reached a settlement. The other defendants moved to
dismiss John's six remaining claims under Title IX and
§ 1983 pursuant to Federal Rule of Civil Procedure
12(b)(6), and the district court granted their motion.
appeal, John argues that the district court erred in granting
the defendants' motion to dismiss. We
AFFIRM the district court's dismissal of
John's Title IX hostile-environment claim, Title IX
deliberate-indifference claim, and § 1983
substantive-due-process claim. Furthermore, we
AFFIRM in part and REVERSE
in part the district court's dismissal of John's
§ 1983 procedural-due-process and equal-protection
claims and related finding of qualified immunity. We
REVERSE the district court's holding
that John did not sufficiently plead his Title IX
erroneous-outcome claim. We REMAND for
further proceedings consistent with this opinion.
evening of September 13, 2014, John and his roommate attended
"a party where John Doe consumed approximately six
beers." R. 39 (Am. Compl. ¶ 22) (Page ID
#1977). John then proceeded to "a bar and drank at least
two more beers and four shots of alcohol before leaving the
bar in the early morning hours of September 14, 2014."
Id. At this point, John was sufficiently intoxicated
that he cannot clearly remember what happened for the
remainder of the night. Id. ¶¶ 22, 24
(Page ID #1977, 1978). Based on text messages he later found
on his cellphone, John knows that he called Jane and
"exchanged text messages with" her after he left
the bar. Id. ¶ 23 (Page ID #1978).
recalls Jane getting into his bed some time before dawn on
September 14. Id. ¶ 24 (Page ID #1978). His
next memory is when he awoke the morning of September 14.
Id. Jane was upset that her cellphone was
"ruined." Id. ¶ 25 (Page ID #1978).
"Because John Doe believed that he had been the last
person to handle Jane Doe's phone, John Doe offered to
buy her a new one." Id. During their trip to
the store, Jane told John that "she was uncomfortable
that he began to perform oral sex on" her. Id.
¶ 26 (Page ID #1978). John apologized for whatever he
may have done, but informed Jane that he could not remember
anything about his interactions with her the prior night.
Id. "After John Doe purchased a new phone for
Jane Doe, she told him that she forgave him and still wanted
to be friends." Id.
attached to his complaint Jane's written statement about
what occurred that night and stated that this is the only
information he has about what happened besides his own
incomplete recollection. Id. ¶ 6 (Page ID
#1975); R. 39-2 (Pl. Ex. 1: Jane Doe Statement) (Page ID
#2036-37). In her statement, Jane recalled that on the
evening of September 13 she was out with a group of friends.
R. 39-2 (Pl. Ex. 1: Jane Doe Statement at 1) (Page ID #2036).
As she and her friends walked back home, she ran into John
and his roommate, whom Jane had previously dated.
Id. Jane described herself as a "little
drunk." Id. Jane and one of her friends
returned to John and his roommate's dorm room.
Id. Once there, Jane's friend told her that she
was going to sleep in Jane's room that evening.
Id. John and his roommate then offered to let Jane
stay in their room, and she accepted. Id. In her
statement, Jane then describes a sexual encounter with John
that transitioned between consensual and non-consensual acts:
I had made out with [John] a couple of times before then, so
I decided to stay with them, I had just kind of assumed we
might make out again. I did not know [his roommate] was going
to stay there. At the time I thought I gave [my friend] my ID
to get into my dorm to stay there. And she left. At this
point I was kinda sobered up and thought [John] and [his
roommate] were too. So they gave me a change of clothes and
told me to pick a bed. I picked [John's] bed, because I
thought that would be less weird. We got in bed and turned of
[sic] the lights and we thought [the roommate] was asleep,
[John] started kissing me and that was okay and what I
expected and fine. He had asked me to do things before, and I
had said no, and he had kept pressuring me to do things and I
kept saying no, no, no. And he asked me again, if he could
finger me and I said fine, because I was tired of him asking
me. I am a virgin and Christian, and I don't do that. So
he started doing that, and it was hurting. I said
"[John] stop it is hurting." He said "Oh it
will hurt at first, you will be fine in a couple of
minutes." I said "Okay fine, whatever." It
kept hurting and never got better. I kept saying stop and it
hurts. [John] kept telling me to be quite [sic] because I
would wake up [his roommate]. I finally got him to stop doing
it, after telling him I pushed him away. We went back to
kissing. He asked to eat me out. And I said no you are not
doing that. We were kissing and then he just did it. I never
said no. I pushed him away. He rolled over and went to sleep.
discussed the incident with several of her friends.
Id. at 2 (Page ID #2037); R. 39 (Am. Compl. ¶
28) (Page ID #1979). One of her friends informed a Resident
Advisor ("RA") that John had sexually assaulted
Jane. R. 39 (Am. Compl. ¶ 28) (Page ID #1979). The RA
informed her superiors at Miami about the alleged sexual
assault and also expressed concern that John might harm
himself because of the accusation. Id. ¶ 29
(Page ID #1979).
September 16, 2014, Miami University's Associate Vice
President and Dean of Students Michael Curme emailed John and
informed him that the University had received a report that
he had sexually assaulted another student two days before. R.
39-2 (Pl. Ex. 3: Summ. Hr'g Notification at 4) (Page ID
#2042). Curme told John that he was required to attend a
summary suspension hearing the following day. Id.
Following that hearing, the University imposed several
restrictions on John, including one that prohibited him from
contacting Jane. R. 39 (Am. Compl. ¶ 31) (Page ID
#1980); R. 39-2 (Pl. Ex. 4: Summ. Hr'g Dec. at 5) (Page
about September 19, 2014, Miami University's Emergency
Case Manager Tim Parsons met with John to explain the
disciplinary process at Miami. R. 39 (Am. Compl. ¶ 34)
(Page ID #1980). John applied for, and received, a Medical
Leave of Absence from the University, effective September 23,
2014, because of his psychological distress resulting from
the accusations. Id. ¶¶ 37-38 (Page ID
September 23, 2014, defendant Susan Vaughn, the Director of
the University's Office of Ethics and Student Conflict
Resolution, provided John a Notice of Alleged Violation.
Id. ¶ 39 (Page ID #1981); R. 39-2 (Pl. Ex. 6:
Notice of Alleged Violation) (Page ID #2052). The notice
informed John that there was an allegation that he had
"sexually assaulted a female resident while both she and
you were intoxicated." R. 39-2 (Pl. Ex. 6: Notice of
Alleged Violation) (Page ID #2052). According to the notice,
this was an alleged violation of Section 103 of Miami
University's Student Conduct Regulations. Id.;
R. 39-2 (Pl. Ex. 8: Miami Univ. Student Handbook at 39-40)
(Page ID #2095-96). The notice informed John that he must
attend a Procedural Review meeting the following day. R. 39
(Am. Compl. ¶ 39) (Page ID #1981). The purpose of the
meeting was to review with John the alleged violation and
potential consequences. R. 39-2 (Pl. Ex. 6: Notice of Alleged
Violation) (Page ID #2052). At that meeting, John denied that
he had committed a violation and requested that the violation
be adjudicated by an Administrative Hearing Panel. R. 39 (Am.
Compl. ¶ 43) (Page ID #1982).
October 1, 2014, Procedural Hearing Officer Kelly Ramsey
informed John and Jane that the hearing panel would convene
on October 7. Id. ¶ 50 (Page ID #1984); R. 39-3
(Pl. Ex. 11: John Doe Notice of Hr'g at 1) (Page ID
#2193); R. 39-3 (Pl. Ex. 12: Jane Doe Notice of Hr'g at
1) (Page ID #2196). Ramsey further informed John and Jane of
the identity of the panel members and that objections to
their inclusion based on bias could be filed by October 3. R.
39-3 (Pl. Ex. 11: John Doe Notice of Hr'g at 1) (Page ID
#2193); R. 39-3 (Pl. Ex. 12: Jane Doe Notice of Hr'g at
1) (Page ID #2196). The panel members were defendants Vaughn,
Professor Alana Van Gundy-Yoder, and Professor Steve Elliott.
Id. John alleges that he had insufficient time to
investigate the proposed panel members and contest their
inclusion before the deadline. R. 39 (Am. Compl. ¶ 52)
(Page ID #1985). Ramsey also told John he had to submit a
witness list, supporting documents, and any written
statements by noon on October 3. R. 39-3 (Pl. Ex. 11: John
Doe Notice of Hr'g at 1-2) (Page ID #2193-94). Jane
received the same instructions. R. 39-3 (Pl. Ex. 12: Jane Doe
Notice of Hr'g at 1) (Page ID #2196). The University did
not, however, hold Jane to the October 3 deadline and allowed
her to submit a written statement on October 6. R. 39 (Am.
Compl. ¶ 51) (Page ID #1984-85).
University held the Administrative Hearing Panel on October
7. Id. ¶ 55 (Page ID #1985). John alleges that
he was not provided the names of the witnesses who testified
against him prior to the hearing or a summary of their
proposed testimony. Id. ¶ 57 (Page ID #1986).
He also alleges that he was not given access to the
disciplinary report compiling the evidence against him.
Id. ¶ 102 (Page ID #2001). John describes
Vaughn-who had been the person responsible for initially
reviewing the evidence against him and choosing to pursue
disciplinary action-as dominating the hearing and trying
"to deflate John Doe's credibility while inflating
Jane Doe's credibility." Id. ¶ 58
(Page ID #1986). John also describes Vaughn's body
language during the hearing as "suggesting she believed
John was lying" and alleges that she told him
"I'll bet you do this [i.e., sexually assault women]
all the time." Id. ¶ 66 (Page ID
hearing panel found John responsible for violating Section
103 of the Student Conduct Regulations. Id. ¶
61 (Page ID #1987); R. 39-3 (Pl. Ex. 15: Admin. Panel
Hr'g Dec.) (Page ID #2233). The totality of the
panel's fact-finding is reproduced below:
You stated that you and [Jane] were friends and have spent
time together in the past. Both of you agreed to go to your
residence hall room, where you engaged in consensual kissing
and some consensual sexual contact. However, at some point,
[Jane] indicated she did not want to have oral sex and asked
you to stop but the act continued.
R. 39-3 (Pl. Ex. 15: Admin. Panel Hr'g Dec.) (Page ID
#2233). The panel sanctioned John by suspending him for three
terms-fall, winter, and spring-until May 2015. R. 39 (Am.
Compl. ¶ 61) (Page ID #1987); R. 39-3 (Pl. Ex. 15:
Admin. Panel Hr'g Dec.) (Page ID #2233). Upon John's
re-enrollment, he was to be placed on disciplinary probation
for one year. R. 39-3 (Pl. Ex. 15: Admin. Panel Hr'g
Dec.) (Page ID #2233).
October 13, John appealed the hearing panel's decision to
the Chair of the University Appeals Board, defendant Rose
Marie Ward. R. 39 (Am. Compl. ¶ 69) (Page ID #1989-90);
R. 39-4 (Pl. Ex. 18: Oct. 13, 2014 Appeal Ltr.) (Page ID
#2237-38). On November 11, 2014, Ward informed John via
letter that the University Appeals Board had denied his
appeal. R. 39 (Am. Compl. ¶ 73) (Page ID #1991); R. 39-4
(Pl. Ex. 20: Appeals Bd. Dec.) (Page ID #2242). John then
appealed this decision to Vice President of Student Affairs,
defendant Jayne Brownell. R. 39 (Am. Compl. ¶ 75) (Page
ID #1991-92); R. 39-4 (Pl. Ex. 21: Nov. 14, 2014 Appeal Ltr.)
(Page ID #2243-44). Brownell affirmed the University Appeals
Board's decision to uphold the hearing panel's
finding of responsibility, but reduced his suspension period
such that it ended on January 23, 2015. R. 39 (Am. Compl.
¶ 77) (Page ID #1993); R. 39-4 (Pl. Ex. 23: Brownell
Dec. at 1) (Page ID #2249).
filed suit against the University and several individual
defendants in the United States District Court for the
Southern District of Ohio on September 17, 2015. R. 1
(Complaint) (Page ID #1-55). John voluntarily dismissed the
two state-tort claims that he brought against Jane after the
two parties reached a settlement. R. 32 (Voluntary Dismissal)
(Page ID #1873). The remaining defendants moved to dismiss
all claims under Federal Rule of Civil Procedure 12(b)(6). R.
42 (Mot. to Dismiss at 6) (Page ID #3139). The district court
granted the defendants' motion. Doe v. Miami
Univ., 247 F.Supp.3d 875, 896-97 (S.D. Ohio 2017). John
now appeals the district court's judgment with respect to
Counts 3 through 7.
STANDARD OF REVIEW
review de novo a district court's grant of a motion to
dismiss for failure to state a claim. Jackson v. Ford
Motor Co., 842 F.3d 902, 906 (6th Cir. 2016). "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) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. On a motion to
dismiss, "[w]e must construe the complaint in the light
most favorable to the plaintiff and accept all allegations as
true." Keys v. Humana, Inc., 684 F.3d 605, 608
(6th Cir. 2012).
previously applied the Twombly/Iqbal
standard of pleading without modification in Title IX cases.
See, e.g., Tumminello v. Father Ryan High Sch.,
Inc., 678 Fed.Appx. 281, 283-84 (6th Cir. 2017); Doe
v. Cummins, 662 Fed.Appx. 437, 443 (6th Cir. 2016). In
other words, a complaint alleging Title IX violations must
plead sufficient factual allegations to satisfy
Twombly and Iqbal. See Keys, 684
F.3d at 609-10.
John argues that we should adopt the Second Circuit's
recent decision in Doe v. Columbia University, 831
F.3d 46 (2d Cir. 2016), which modified the pleading standard
for Title IX claims. Appellant Br. at 28-34. In Columbia
University, our sister circuit considered what a
plaintiff asserting a Title IX claim must allege in order to
plead sufficiently the required element of discriminatory
intent. Columbia Univ., 831 F.3d at 56. The Second
Circuit analogized between what it required of plaintiffs in
Title VII employment-discrimination cases and what it should
require of plaintiffs alleging Title IX claims. Id.
It concluded that a complaint under Title IX "is
sufficient with respect to the element of discriminatory
intent . . . if it pleads specific facts that support a
minimal plausible inference of such discrimination."
Id. This modified pleading standard "reduces
the facts needed to be pleaded under Iqbal."
Id. at 54 (quoting Littlejohn v. City of New
York, 795 F.3d 297, 310 (2d Cir. 2015)).
the merits of the Second Circuit's decision in
Columbia University, to the extent that the decision
reduces the pleading standard in Title IX claims, it is
contrary to our binding precedent. Columbia
University is partially premised on the Second
Circuit's decision in Littlejohn, 795 F.3d 297.
In that case, the Second Circuit reconciled Twombly
and Iqbal with the Supreme Court's holding in
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), by
holding that "[t]o the same extent that the
McDonnell Douglas temporary presumption reduces the
facts a plaintiff would need to show to defeat a motion for
summary judgment prior to the defendant's furnishing of a
non-discriminatory motivation, that presumption also reduces
the facts needed to be pleaded under Iqbal."
Littlejohn, 795 F.3d at 310. In contrast, we
reconciled these cases differently in Keys, 684 F.3d
at 609-10, and held that a plaintiff asserting a Title VII
claim must plead sufficient factual allegations to satisfy
Twombly and Iqbal in alleging the required
element of ...