Doe v. University of Arkansas - Fayetteville

          OPINION AND ORDER

          P.K. HOLMES, III U.S. DISTRICT JUDGE.

         Before the Court is Defendants' motion (Doc. 17) to dismiss and brief (Doc. 18) in support. Plaintiff John Doe filed a response (Doc. 22). For the following reasons, Defendants' motion will be GRANTED.

         I. Background

         John Doe and Jane Roe were students at the University of Arkansas-Fayetteville (“UA”). (Doc. 1, p. 7). The students exchanged messages over social media and hung out socially several times during the Fall 2017 semester. Id. On October 28, 2017, Roe attended a Halloween-themed party. Id. During the party, Roe began a text message conversation with Doe. (Id., p. 8). After exchanging several messages, the students decided to meet up at Doe's apartment. Id. Roe and Doe engaged in sexual intercourse and then Doe took Roe home. (Id., pp. 8-10). Following this encounter, Roe filed a complaint with UA alleging that Doe sexually assaulted her in violation of the University of Arkansas-Fayetteville Policy 418.1, because Roe was too incapacitated to engage in a consensual sexual encounter. (Id., pp. 15-16). Tyler Farrar, UA's Title IX Coordinator, reviewed the complaint and determined that Doe was not responsible for a violation of UA's sexual assault policy. (Id., p. 21). Roe filed an appeal of Farrar's decision. Id. A three-member hearing panel conducted a de novo review on April 23, 2018. (Id., p. 22). The hearing panel found Doe responsible for sexual assault in violation of the UA policy. (Id., p. 25). UA required Doe to complete Title IX training, ten hours of community service, and an online sexual violence accountability course. (Id., p. 27). Doe filed the instant suit against UA, its Title IX coordinator and investigator, and the hearing panel members under 42 U.S.C. § 1983, alleging UA's sexual assault resolution process failed to afford him due process as required by the Fourteenth Amendment of the United States Constitution. Doe also claims that he was subject to gender discrimination in violation of Title IX of the Education Amendments of 1972.

         UA is a public university located in Fayetteville, Arkansas. UA's sexual assault policy and grievance procedure is regulated by Title IX regulations promulgated by the United States Department of Education.^[1] In 2011, the United States Department of Education Office of Civil Rights issued a “Dear Colleague Letter”^[2] providing guidance to universities on how to fulfill the requirement of adopting “prompt and equitable” sexual assault resolution procedures under Title IX. U.S. Dep't of Ed., Office for Civil Rights, Dear Colleague Letter (Apr. 4, 2011). The guidance encouraged schools to establish a Title IX Coordinator position, adopt a preponderance of the evidence standard for adjudications, allow appeals for both parties, and to exclude cross-examination of the alleged victim by the accused, among other suggested procedures. UA structured its procedures to comply with this guidance. (Doc. 1, pp. 11-12).

         A. UA's Sexual Assault Resolution Procedure

         UA has a formal adjudicative process. University of Arkansas-Fayetteville Policies and Procedures 418.1 (XIII) (2019). Upon receiving a report of a potential Title IX student code violation, UA's Title IX Coordinator conducts an intake meeting with the complainant. (Id., 418.1(A)(1)). This meeting is used to gather information from the complainant and for the Title IX Coordinator to determine whether accommodations or mental/physical health referrals are appropriate. Id. If the complainant expresses a desire to file a complaint in the initial intake meeting, the Title IX Coordinator conducts an intake meeting with the respondent. Id. UA policy allows for the complainant and the respondent to be accompanied by an advisor/support person to assist during the process. Id. However, the advisor/support person is not allowed to speak for the parties during the proceedings. Id.

         After the Title IX Coordinator completes the intake process and the complainant opts to file a formal complaint, the Title IX Coordinator assesses whether a potential Title IX violation has occurred. (Id., 418.1(A)(2)). If the Title IX Coordinator “determines that a potential Title IX violation occurred, ” he refers the matter to the Office of Student Standards and Conduct's Title IX Investigator to complete a “comprehensive investigation.” (Id., 418.1(A)(3)). At the conclusion of her investigation, the Title IX Investigator compiles a summary of the investigation and provides it to the Title IX Coordinator. Id. Once the summary of the investigation is complete, the Title IX Coordinator provides a copy of the summary to both parties. (Id., 418.1(A)(4)). The parties are then allowed to submit additional relevant information to the Title IX Coordinator and may request a pre-decision meeting. Id. Once the parties have filed any additional submissions, the Title IX Coordinator compiles all material submitted into an investigative report. Id. If the Title IX Coordinator determines based on a preponderance of the evidence that the “conduct at issue constitutes a violation of Title IX, ” the Coordinator determines the appropriate remedy or sanction as part of his written finding. Id. However, if the Title IX Coordinator finds that the conduct at issue does not constitute a violation of Title IX, the Title IX Coordinator determines and documents the appropriate resolution of the case and notifies the parties of that determination. Id.

         Once the Title IX Coordinator has issued his determination to the parties, either party may file an appeal of any or all of the Title IX Coordinator's decision. (Id., 418.1(A)(5)). The appeal is to be heard by a three-member hearing panel. Id. When a party appeals, the Title IX Coordinator and both parties are notified in writing of the appeal and the issues the appellant is challenging. Id. The appellee may file a response to the appeal within three days after receipt of appeal notice. Id.

         Within three days of the appellant filing an appeal, the Assistant Director of the Office of Equal Opportunity and Compliance (“AD-OEOC”) selects the members of the Title IX hearing panel. Id. The hearing panel consists of a mixed-gender panel of individuals who are members of UA's Title IX hearing board, Title IX Coordinators or Deputy Coordinators from other University of Arkansas System Campuses, or other specifically designated and trained members of the Northwest Arkansas legal community. Id. UA only allows individuals who have participated in in-person Title IX hearing panel training to serve on a hearing panel. Id. The parties may object to the individuals selected for their appeal hearing panel. Id.

         The parties are permitted to submit witness lists for the hearing. Id. The AD-OEOC then provides notice to the parties and the witnesses listed requesting that the individuals appear before the hearing panel. Id. Both parties may present evidence, but formal rules of evidence do not apply during the proceeding. Id. The parties are not allowed to personally question or cross-examine one another. Id. However, the parties may question witnesses. Id. After the close of the hearing, the hearing panel confers and votes to determine whether the evidence establishes that it is more likely than not that the Respondent committed a violation of the sexual assault policy. Id. If the hearing panel determines that a violation occurred, it assigns sanctions. Id. Appropriate sanctions are based on “the nature and gravity of the misconduct, and any record of prior student discipline . . . .” Id. The decision of the hearing panel is final. Id.

         B. Doe's Disciplinary Proceedings

         On October 28, 2017, Jane Roe attended a Halloween-themed party. (Doc. 1, p. 7). During the party Roe texted Doe, whom she had met during her time at UA. Id. At 11:31 p.m., Roe sent Doe a picture of herself in her Halloween costume holding a beer. (Id., p. 8). Through a series of text messages, the two students decided to “hang out.” Id. At 11:58 p.m., Doe informed Roe that he was taking an Uber back to his apartment and told Roe that he would be home by 12:15 a.m. Id. Roe then informed Doe that she would call an Uber to his apartment after one more song. Id. Roe asked for Doe's address so that she could enter it into her Uber request. Id. At 12:16 a.m., Roe texted Doe to inform him that she was on her way. Id. At 12:22 a.m., Roe arrived at Doe's apartment. Id. Doe alleges that Roe confirmed during the investigation that she was not drunk while she was texting him and did not drink anymore while at Doe's residence. Id. When she arrived, Roe suggested that the two go into Doe's room to talk. Id. Doe asserts that Roe turned off the lights and began kissing him. Id. Doe and Roe then engaged in sexual intercourse. (Id., p. 9). Doe claims that Roe confirmed several times that she wanted to have sex with him. Id. After the encounter, Doe drove Roe home. (Id., p. 10). On the drive home, Roe gave Doe directions to her apartment. Id. A few hours later, Roe's roommate's boyfriend found Roe in her room bleeding from self-inflicted wounds. (Id., p. 11). The boyfriend called 911. Id. Doe alleges that Roe told the 911 operator that she was not intoxicated, and that she had cut herself in reaction to a recent breakup. Id. Roe was taken to the hospital. Id. When Roe arrived at the hospital, she declined a rape kit. Id.

         On November 6, 2017, Doe received a notice of allegation from Tyler Farrar, UA's Title IX Coordinator, alleging that:

[O]n or about Sunday, October 29, 2017, . . . [Doe] engaged in behavior that may be in violation of the University's Sexual Assault and Sexual Harassment Policy and the prohibition against sexual assault. Specifically [Jane Roe] has alleged that she believes sexual contact occurred while she was incapacitated and unable to give consent. [Jane Roe] has stated that she went to your residence in the early morning of October 29, 2017, and has little recollection of what occurred. However, [Jane Roe] has articulated that she believes you had sexual contact with her when she was too intoxicated to give verbal or implied consent.

(Id., p. 16). On November 30, 2017, Roe was interviewed by Kristen Barnett, UA's Title IX Investigator. Id. In that interview, Roe explained that she had been drinking earlier that evening and then met up with Doe at his residence. Id. She shared that she did not recall much of the evening at Doe's house but believed that the two had sexual relations because she was not wearing underwear when she arrived at the hospital that evening, and her underwear was found at Doe's apartment. Id. After the interview, Barnett allowed Roe to review the summary of the interview and suggest revisions. (Id., p. 17). Roe suggested edits including a memory of having sexual intercourse with Doe. Id. After Barnett's initial interview with Roe, Barnett met with Roe again on January 11, 2018, to address two questions submitted to Barnett by Doe. Id. Roe responded that she could not answer the questions because “she had a limited recollection of the evening.” Id.

         Farrar, UA's Title IX Coordinator, provided the Final Investigative Report, including Barnett's investigation summary and additional materials submitted by both parties, to Doe and Roe on February 19, 2018. Id. Doe and his advisor requested a pre-determination meeting with Farrar. (Id., p. 18). Farrar offered to allow Doe to make a statement regarding the allegations, but Doe declined. Id. In the meeting, Doe asserted that Roe changed her story multiple times over the course of the investigation. Id. After the initial investigation was complete, Farrar received the Fayetteville Police Department's investigation report. Id. The report noted that Roe's Uber driver did not recall anything unusual about the ride or that Roe seemed intoxicated. (Id.., p. 19). The report also included a statement by Fayetteville Police Department Officer Stacy Dicus noting that Roe attempted to limit who Officer Dicus spoke with and that she was unable to communicate with Roe since their conversation on November 9, 2017. Id.

         Once Farrar received the Fayetteville Police Department report, he allowed both parties to review the report and make additional statements regarding the information contained within. Id. Farrar then issued his Letter of Decision, finding that “although there was evidence to indicate Roe may have been intoxicated, the evidence was insufficient to establish that it was more likely than not that Jane Roe was intoxicated to the point of incapacitation.” (Id., p. 20).

         Roe filed an appeal of Farrar's Letter of Decision. (Id., p. 21). In her appeal, Roe challenged Farrar's finding that she was not incapacitated. Id. Roe's appeal explained:

[I]t is to my understanding that the University defines sexual assault allegations within two categories: by force and through incapacitation. I do not believe that these terms are mutually exclusive. I have stated this previously. If an individual is incapacitated while someone performs sexual acts to them, those acts are subsequently ‘by force' without question.

Id. Doe received the appeal documents and sought clarification of the charges against him. (Id., p. 22). Farrar told Doe that he would not know the full extent of the charges against him until the hearing. Id. Farrar reminded Doe that new and additional evidence may be submitted to the hearing panel. Id.

         Doe requested that Kristin Barnett, UA's Title IX Investigator, appear as one of his witnesses for the hearing. Id. However, Barnett chose not to attend the hearing. Id. The Title IX hearing panel conducted a de novo hearing on April 23, 2018. Id. The Panel was comprised of Jon Comstock, Eric Specking, and Dina Wood. (Id., p. 23). UA considered each panel member to be knowledgeable and trained on proper adjudication of Title IX issues. Id. At the beginning of the hearing Doe requested a continuance because Barnett was not present, and Roe was attempting to introduce new evidence he had not seen. Id. The panel denied this request. Id. After hearing evidence from the parties, the panel determined that Roe became incapacitated at some time while she was at Doe's residence. Id. As a result, the panel voted two to one that the evidence established that it was more likely than not that Doe was responsible for sexual assault in violation of UA Policy 418.1. (Id., p. 24). The panel noted that there was no evidence of consent and that it disregarded much of Doe's testimony because it determined that Doe's testimony “lacked credibility.” (Id., p. 25). The panel imposed “limited sanctions” including “Title IX training, ten hours of community service and an online sexual violence accountability course, ” because of the “extremely close factual determinations” made in Doe's case. (Id., p. 27). Doe was placed on “conduct probation” pending his completion of the imposed sanctions. Id.

         Doe also alleges that UA was being investigated by the Department of Education Office of Civil Rights for failure to properly investigate prior claims of on-campus sexual behavior at the time of Doe's sexual assault adjudication. Id. Doe further asserts that various media outlets and student organizations were pressuring UA to change its adjudication process because UA was not adequately resolving sexual assault claims of female students against male students. Id. Doe claims that a highly publicized lawsuit against UA for its failure to properly adjudicate a Title IX complaint by a female against a male may have influenced the panel's decision. Id. Doe also alleges that after UA's initial finding of no violation in Doe's case, Roe began a media campaign criticizing the University's decision. Id. The campaign caused UA to issue a public statement. Id. Doe alleges that Roe's media campaign and the public blowback from that campaign caused UA to sway the hearing panel decision in Roe's favor.

         II. Standard of Review

         To survive a motion to dismiss, a plaintiff must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court accepts Plaintiff's factual allegations as true. Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012). A claim is plausible on its face if the “plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Factual allegations must be enough to raise a right to relief above the speculative level . . . .” Bell Atl. Corp., 550 U.S. at 555 (2007). Where the well-pleaded facts “do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Ashcroft, 556 U.S. at 679 (2009)(internal quotations omitted).

         III. ...