United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge.
The
Arizona Board of Regents (“ABOR”), along with
Arizona State University's (“ASU”) Senior
Vice President of Educational Outreach and Student Services
James Rund, Chair of the University Hearing Board
(“UHB”) Craig Allen, UHB members Kathleen Lamp
and Andrew Waldron, Senior Associate Dean of Students and
Dean's Review Committee member Kendra Hunter, and Office
of Student Rights and Responsibilities Senior Coordinator
Tara Davis (collectively, “Defendants”), move to
dismiss plaintiff John Doe's first amended complaint
(“FAC”). Doe filed this action after being
expelled for violating certain provisions of the ASU Student
Code of Conduct (the “Code”), including
provisions related to sexual misconduct. For the following
reasons, the motion will be granted in part and denied in
part.
BACKGROUND
The
facts alleged in the FAC (Doc. 37), which the Court presumes
to be true for purposes of the motion to dismiss, are as
follows. …
I.
The Underlying Incident
On
March 31, 2016, Doe and a fellow ASU student, Jane Roe, went
on a dinner date and then engaged in consensual sexual
activity in Roe's apartment. (Id. ¶ 109.)
On
April 2, 2016, Doe and Roe attended the same off-campus
party. (Id. ¶ 110.) During the party, Roe (who
was under 21 years old at the time, and thus not legally
allowed to drink alcohol) drank several shots of low-proof
vodka. (Id. ¶¶ 7, 9, 17, 111-15.) Roe also
danced provocatively with Doe and another male attendee,
Witness 1, and kissed both men in the view of other
partygoers. (Id. ¶¶ 7, 118.) Eventually,
Roe led both men into a bedroom by the hand. (Id.
¶¶ 8, 121.) After the trio entered the bedroom, Roe
kissed Witness 1, prompting Doe to ask Roe if he should
leave. (Id. ¶¶ 10, 122.) Roe told Doe to
stay and then verbally consented to sex. (Id.) Roe,
Doe, and Witness 1 then undressed and engaged in a
“threesome” for approximately 25 minutes, during
which “Roe was an active participant in the sex, moving
her hips appropriately, manipulating Doe's genitals to
facilitate sex, and making moaning sounds indicative of
pleasure.” (Id. ¶¶ 10-11, 122-23.)
After 25 minutes, Roe reported vaginal pain and asked the men
to stop. (Id. ¶¶ 11, 125.) Both complied
with this request. (Id.)
After
the threesome ended, Roe continued manipulating Doe's
genitals by hand. (Id. ¶ 126.) While this was
occurring, Witness 1 surreptitiously began video-recording
the encounter on his cellphone, which revealed
“consensual” sexual conduct by Roe. (Id.
¶¶ 12, 126-27.) When Roe realized she was being
filmed, she told Witness 1 to stop and became upset.
(Id. ¶¶ 12, 126, 128.) After Witness 1
left, Doe asked Roe why she was being “dramatic.”
(Id. ¶¶ 13, 128.) This comment further
angered Roe and precipitated an argument between Doe and Roe
in which both called the other “an asshole.”
(Id.) Roe then left the room, found a friend, and
left the party. (Id.)
II.
The Criminal Investigation By The Tempe Police
Department
On
April 3, 2016 (the next day), Roe contacted the Tempe Police
Department to report that that “she drank too much to
consent to sex with Doe and Witness 1.” (Id.
¶¶ 14, 131.) However, during the interview process,
Roe “reported that she was coherent when entering the
bedroom, understood what was occurring throughout the sexual
encounter, and told the males to stop when the sex began to
hurt.” (Id. ¶ 133.) Roe also stated,
falsely, that she had never engaged in sexual conduct with
Doe before the party. (Id. ¶ 131.) As part of
the ensuing investigation, a Tempe police detective obtained
and viewed a copy of the cellphone video that Witness 1 had
taken. (Id.¶ 142.) After the Tempe Police
Department completed its “thorough[]”
investigation of Roe's allegations, the Maricopa County
Attorney's Office declined the case, meaning that Doe
“was never charged with any crime.” (Id.
¶¶ 14, 143.)
III.
Title IX Developments At ASU
The FAC
alleges that, between 2001 and 2011, universities such as ASU
followed Title IX guidance materials promulgated by the
United States Department of Education's Office of Civil
Rights (“OCR”), which generally required schools
to provide certain “procedural guarantees” to
students accused of sexual harassment and other misconduct
and to accord “due process to both parties
involved.” (Id. ¶¶ 80-83.) However,
in 2011, OCR issued a “significant guidance
document” commonly referred to as the “Dear
Colleague” letter. (Id. ¶ 84.) This
letter advanced a “gendered view” of sexual
violence “that saw men as paradigmatic perpetrators of
that violence and heterosexual women as its paradigmatic
targets.” (Id.) Among other things, the letter
forbade universities from employing a
clear-and-convincing-evidence standard during sexual
misconduct proceedings and required them to employ a lesser
preponderance-of-the-evidence standard. (Id. ¶
87.) OCR also issued a later guidance document that
“strongly implied that allowing an accused student to
cross-examine his accuser could create a ‘hostile
environment' and put a college or university in violation
of Title IX.” (Id. ¶ 92.) OCR explicitly
threatened universities with the withdrawal of federal
funding if they failed to comply with these mandates.
(Id. ¶¶ 89, 95.)
The
head of OCR also advanced a “gendered view” of
Title IX enforcement through interviews and press releases.
(Id. ¶¶ 85-86.) During one interview, the
head of OCR stated “she couldn't help but to think
about the women who are suffering every day.”
(Id. ¶ 85.) During another event, the head of
OCR sought to “highlight men's role in preventing
sexual violence.” (Id. ¶ 86.)
In May
2014, as part of an effort to follow-up on the issuance of
the “Dear Colleague” letter, OCR published a list
of 55 universities that were under investigation for Title IX
violations. (Id. ¶ 94.) ASU was one of the
universities named on this list. (Id.) OCR officials
visited ASU in 2012 and 2013 to “gather
information” about ASU's processes for
investigating sexual assault complaints. (Id. ¶
98.) Following these visits, ASU was “subjected to
extraordinary pressure, ” including two additional OCR
complaints “that were filed as [Doe's] case was
ongoing.” (Id.)
IV.
The Initial Investigation By ASU
In
September 2016 (about six months after the incident), Roe
reported the incident to ASU. (Id. ¶¶ 15,
144.) After Hunter received a report concerning the
investigation, she sent an email to her colleagues
“indicat[ing] that action had to be taken quickly
because [Doe] was a male athlete-a collegiate
wrestler.” (Id. ¶ 254.)[1]
On
September 19, 2016, ASU initiated its investigation and
interviewed Roe. (Id. ¶ 144.) During this
meeting, Davis told Roe that “‘as soon as I have
the green light, I will charge' Doe with sexual
misconduct, ” even though Davis had not yet interviewed
Doe or collected any corroborating information. (Id.
¶ 150.) Davis also explained that she would not
“go get” evidence and that it was instead up to
Roe “to provide us with whatever documentation you
think is relevant.” (Id. at 148.)
On
September 22, 2016 (three days later), ASU notified Doe that
he was being investigated for violations of the Code related
to alcohol, sexual misconduct, and surreptitious recording.
(Id. ¶ 145.)
On
September 23, 2016 (the next day), Doe met with Davis.
(Id. ¶ 148.) Davis informed Doe that she would
handle ASU's investigation, acting as “a neutral,
third party investigator, ” and that her job was to
“collect information-anything I can get.”
(Id.) This was different from what Davis had told
Roe three days earlier when describing her role.
(Id. ¶ 149.) Davis further told Doe that the
Dean's Review Committee (“the Committee”)
would determine whether Doe violated the Code “based on
whatever (information) is available to them.”
(Id. ¶ 148.) Then, without prior notice, Davis
asked Doe for a statement about the incident. (Id.)
On advice of counsel, Doe ended the meeting. (Id.)
Davis
continued with the investigation. (Id. ¶¶
152-57.) Among other things, she asked Roe to produce the
Tempe Police Department report of the incident, as well as a
video of the incident recorded by a Witness 1. (Id.
¶ 154.) Although Roe provided the police report, it was
missing “key, exculpatory sections, including [a]
screenshot of the video . . . and the [Sexual Assault Nurse
Examination (‘SANE')] results.”
(Id.) In fact, during the SANE exam, Roe had
disclaimed the use of force in the incident. (Id.)
Doe was interviewed twice more and provided two written
responses. (Id. ¶ 155.)
On
December 20, 2016, Davis informed Doe that she had sent her
investigative report to the Committee. (Id. ¶
158.) At this point, Doe asked to see Roe's response to
one of his previous written submissions. (Id.) Davis
responded by claiming that Roe's response did not
“provide[] any new evidence.” (Id.) This
claim was false-when Doe was allowed to review Roe's
response on December 21, 2016, he learned that “it
contained substantial new evidence.” (Id.)
“Within 24 hours, ” Doe submitted another letter
that attempted to address Roe's new,
previously-undisclosed allegations. (Id.)
V.
The Committee's Expulsion Decision
Unbeknownst
to Doe, the Committee had already convened and decided to
expel him by the time he prepared this supplemental letter.
(Id. ¶ 159.) By failing to consider Doe's
letter before rendering a decision, the Committee violated
ASU's written manual of Student Disciplinary Procedures.
(Id. ¶¶ 39, 159.)
The
Committee's expulsion letter explained that it had
determined Doe committed two of the alleged Code violations
(sexual misconduct and alcohol) but not the third alleged
Code violation (surreptitious recording). (Id.
¶ 160.) With respect to the sexual misconduct charge,
the Committee (1) concluded that Roe was incapacitated at the
time of the sexual encounter and (2) further
“concluded, without analysis, that Doe knew of
Roe's incapacitation.” (Id.) The Committee
did not, in contrast, find that Doe had used
“force” during the sexual encounter.
(Id. ¶ 162.) With respect to the alcohol
charge, the letter failed to provide any explanation, but
Hunter subsequently informed Doe that he had violated the
Code because (1) he “gave” alcohol to Roe, who
was under 21, and also (2) he “received” alcohol
“with the intent” to give it to Roe.
(Id. ¶¶ 160, 164.)
VI.
The UHB Hearing
Although
Davis had “threatened” Doe with a
“permanent notation on Doe's academic record”
if he appealed the Committee's decision, Doe appealed
anyway. (Id. ¶ 165.) A hearing before the UHB
was originally scheduled for March 10, 2017. (Id.
43-44.) The notice of hearing stated that the focus would be
on the two violations found by the Committee-specifically,
that (1) Roe was incapacitated and incapable of consenting to
sex and (2) Doe provided her with alcohol-and the sanctions
imposed. (Id.) Although the hearing was supposed to
be held within 90 days of the issuance of the Committee's
letter, the meeting was postponed because a member of the UHB
was unable to attend on March 10. (Id.) The hearing
was rescheduled for May 23, 2017. (Id.)
Before
the hearing, Doe sought (1) an extension of the time
allotted, (2) a clear definition of
“incapacitation” under the Code, and (3) a
request that Roe help obtain the video of the encounter.
(Id. ¶ 167.) Allen denied the latter two
requests but granted “several incremental extensions to
the time allotted for the hearing.” (Id.
¶¶ 168-70.) Even with those extensions, “the
UHB's time restraints ultimately prevented Doe from
examining four key witnesses”: specifically, Davis, two
witnesses from the party, and Doe's “alcohol
expert.” (Id. ¶ 170.) Doe's time at
the hearing was further constrained by the fact that he had
to read into evidence portions of the police report and was
not allowed to directly cross-examine Roe-instead, he had to
direct his questions to Roe through Allen. (Id.) A
summary of what Doe's alcohol expert would have said was
sent to the UHB after the hearing, but Allen refused to
accept it. (Id. ¶ 181.)
The UHB
issued its findings and recommendations on May 30, 2017.
(Id. ¶ 182.) Those findings “could not
determine by even a preponderance of the evidence whether Roe
was incapacitated” and acknowledged that
“[a]ccounts of the encounter provided by all parties
indicate that [Roe] was lucid and able to verbally
communicate.” (Id. ¶ 183.) Nevertheless,
the UHB determined that Doe had used “impermissible
force” in his encounter with Roe. (Id. ¶
184.) Specifically, the UHB concluded that Doe had
“committed ‘sexual violence' by
‘engag[ing] [Roe] by force' because of minor
interior vaginal abrasions and knee bruising reported in
Roe's SANE report and her statements about pain and
crying.” (Id. ¶ 184.) The UHB separately
found Doe responsible for the alcohol charge because he
“distributed” alcohol to Roe. (Id.
¶ 186.)
The
UHB's “impermissible force” finding was
flawed for two reasons. First, it was a “new basis for
liability”-the Committee didn't charge Doe with
using “impermissible force” against Roe or find
him responsible under such a theory, the UHB's
pre-hearing notices didn't focus on the
“impermissible force” issue, and the UHB
didn't add a “impermissible force” charge
until after the close of evidence. (Id. ¶¶
162, 171, 184.) Second, the “impermissible force”
finding was factually flawed because Roe told the Tempe
Police Department investigator that no force was used and
Doe's expert provided uncontradicted testimony during the
hearing that Roe's injuries were only consistent with
consensual sex. (Id. ¶¶ 184-85.)
VII.
Rund's Review Of The UHB's Decision
The
UHB's findings were given to Rund, ASU's final
arbiter on student misconduct issues. (Id. ¶
187.) Rund overruled the UHB's finding of no
incapacitation, adopted the UHB's finding of
impermissible force, and adopted the UHB's conclusion on
the alcohol charge. (Id. ¶¶ 187-91.)
On
August 30, 2017, Rund denied Doe's motion for
reconsideration of his ruling. (Id. ¶¶
192-96.) This constituted ASU's final administrative
decision. (Id. ¶ 197.)
VIII.
Doe's Appeal To The Maricopa County Superior
Court
On
October 2, 2017, Doe appealed ASU's decision to the
Maricopa County Superior Court pursuant to A.R.S. §
12-901 et seq. (Doc. 28 at 1.)
On
October 29, 2018, the Maricopa County Superior Court issued a
six-page order rejecting Doe's appeal. (Doc.
40-1.)[2] Specifically, the court concluded that
Rund's incapacity, force, and alcohol-related
determinations were “supported by substantial
evidence” (id. at 5-7), that “Doe was
not denied due process” (id. at 7), and that
the penalty of expulsion was not excessive (id. at
7-8).
IX.
This Action
On May
29, 2018, Doe filed this action. (Doc. 1.) The initial
complaint contained two federal claims-(1) a violation of
Doe's constitutional rights to due process and equal
protection, asserted via 42 U.S.C. § 1983, against the
ASU officials in their official and individual capacities,
and (2) a violation of Title IX (20 U.S.C. §§
1681-88) against ABOR-as well as various state-law claims
(breach of contract, defamation, gross negligence,
intentional infliction of emotional distress, and false
light) against some or all of the Defendants. (Doc. 1 at 49,
56, 62, 65, 67, 69, 70.) Doe sought monetary damages as well
as injunctive and declaratory relief against ABOR.
(Id. Doc. 1 at 71.)
In
September 2018, the parties filed a joint motion to stay
proceedings pending the disposition of Doe's appeal to
the Maricopa County Superior Court. (Doc. 28.) The request
was granted, and the parties were instructed to notify the
Court when the state court issued its decision. (Doc. 29.)
As
noted, the state court issued its decision on October 29,
2018. (Doc. 40-1 at 1.)
Afterward,
Doe asked for another stay pending his appeal to the Arizona
Court of Appeals. (Doc. 32 at 1.) The Court denied this
request, citing concerns with excessive delay and fairness to
the Defendants. (Doc. 35.)
Doe
then submitted the FAC. (Doc. 37.) The factual allegations
remain largely the same, but Doe (1) amended Count I (the
§ 1983 claim) to include ABOR as a Defendant and to make
clear he was suing the ASU officials only in their individual
capacities, and (2) removed Count IV (a state-law defamation
claim). (Doc. 36-1 at 54, 76.)
On
November 18, 2019, the Court issued a tentative ruling on
Defendants' motion to dismiss. (Doc. 61.)
On
December 18, 2019, the Court heard oral argument.
ANALYSIS
In
their motion to dismiss, Defendants argue (1) the Court lacks
subject matter jurisdiction over this entire action under the
Rooker-Feldman doctrine because granting the relief
sought by Doe would effectively require this Court to review
and reverse the decision of the Maricopa County Superior
Court affirming ASU's expulsion decision, (2) the §
1983 claim (Count I) must be dismissed under Rule 12(b)(6)
because ABOR is immune from § 1983 liability, the
individual Defendants are entitled to qualified immunity, and
the FAC doesn't plausibly allege a due process violation,
(3) the Title IX claim (Count II) must be dismissed under
Rule 12(b)(6) because the FAC “does not make a single
factual allegation regarding gender bias that is specific to
the disciplinary proceedings that led to [Doe's]
expulsion, ...