United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
HOLMES, III U.S. DISTRICT JUDGE.
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.
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. In 2011, the United States Department
of Education Office of Civil Rights issued a “Dear
Colleague Letter” 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).
UA's Sexual Assault Resolution Procedure
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.
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.
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.
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.
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.
Doe's Disciplinary Proceedings
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.
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.
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,
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).
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.
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.
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
Standard of Review
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).