Doe v. Rice University, No. 21-20555, 2023 WL 3373316 (5th Cir. 2023)
Dan Fotoples J.D., M.A., Director of Content Development, TNG Consulting, LLC
Rice University (“the University”) investigated and suspended Doe, an undergraduate student-athlete, first for failing to disclose his herpes diagnosis to a sexual partner and later for failing to disclose more detailed information about his herpes diagnosis. Doe challenged the decision in federal court, saying that the University acted with gender bias.
PROCEDURAL HISTORY
Doe filed suit alleging the University violated Title IX, among other federal and state laws. The University filed a motion for summary judgment asking the district court to dismiss Doe’s lawsuit, and the district court granted the University’s request. Doe appealed to the Federal Court of Appeals for the Fifth Circuit.
SUMMARY OF FACTS
In Fall 2017, Doe began his first year at Rice on a full-ride football scholarship. Shortly thereafter, Doe met Roe, another student, and they began dating. Doe shared with Roe that he had contracted herpes and chlamydia in high school. Doe and Roe engaged in several consensual, unprotected sexual encounters before ending their relationship in December 2017. Later that month, Roe texted Doe that she thought she had herpes and that she “mostly likely got it” from Doe. When Doe said that he had it a long time ago, Roe told Doe he likely had “dormant herpes” because herpes is an incurable disease.
Roe contacted the University’s Title IX office and the Rice University Police Department (UPD), alleging that Doe failed to inform her that he had herpes prior to their sexual encounters. Roe sought information about filing a formal Title IX complaint. Although UPD declined to file charges, the University’s Student Judicial Programs office (SJP) accepted Roe’s complaint. As a result, SJP opened a disciplinary inquiry to determine whether:
- Doe intentionally inflicted or attempted to inflict mental or bodily harm on any person.
- Doe took “reckless disregard, from which mental or bodily harm could result to any person.”
- Doe engaged in dating violence per the University’s Sexual Misconduct Policy.
The SJP director reached out to Doe requesting to schedule a meeting the following day. After consulting his attorney, Doe sought to reschedule the meeting. Later that day, a senior University official notified Doe that the University was placing Doe on interim suspension. The University told Doe it would reevaluate the suspension after Doe engaged with the investigation.
In his response to the allegations, Doe told SJP that he had discussed his herpes diagnosis with Roe prior to beginning a sexual relationship. Additionally, Doe suggested to SJP that Roe may have contracted herpes from another student with whom Roe had a sexual relationship or from some other source besides Doe. Finally, Doe alleged that Roe had repeatedly lied and contradicted herself in her representations to SJP. Doe also offered evidence that Roe was engaging in the same behaviors for which the University was investigating Doe. In fact, Roe had expressly informed the University of her intent not to tell her future sexual partners of her herpes diagnosis.
After submitting his response, Doe received an email modifying the terms of his suspension as a result of Doe now participating in the process. Approximately two weeks later, SJP notified Doe that the investigation was complete. After offering a short period for the parties to supplement the case file, SJP issued a decision letter finding Doe in violation of the University’s Code of Conduct. According to the SJP, Doe failed to adequately notify Roe of the fact that she was at risk of contracting herpes from Doe. Doe’s failure to clearly disclose this information to a sexual partner and then engage in unprotected sex was deemed “a reckless act from which mental or bodily harm could result.” The decision letter noted that, although Doe disclosed his herpes diagnosis, Doe never informed Roe of the details of the disease, its long-term effects, or how it spreads. SJP sanctioned Doe with “social rustication” (an antiquated term for suspension) and limited his presence on campus to academics only. Soon thereafter, Doe lost his football scholarship.
Doe appealed the decision. In his appeal, Doe raised the following issues:
- Roe gave conflicting testimony during SJP proceedings. Roe lied, misled, misunderstood, or misremembered facts to Doe’s detriment. No reasonable trier of fact would find Roe credible. Doe listed several specific instances of Roe’s contradictions in his appeal.
- The University neglected to hold Roe responsible for her “reckless personal behavior” and failed to interview another student that stated he had contracted herpes from Roe prior to Doe attending the University.
The University denied Doe’s appeal. Doe ultimately withdrew from the University.
FINDINGS AND SIGNIFICANT ISSUES
Here, the appeals court sided with Doe and overturned the district court’s decision. The appeals court identified multiple instances in which the University’s procedures were deficient, leading to questions about whether Doe received due process:
- The University implemented an interim suspension prior to Doe having a reasonable opportunity to present his side of the story. Arguably, the University implemented the suspension to coerce Doe into participating in the investigation.
- The University did not permit Doe’s lawyer to participate in the process or to view any documents. Instead, the University assigned Doe a Title IX resource navigator who had also previously met with Roe and a police officer to take Roe’s statement. The court asserted that such dual roles raised conflict of interest concerns.
- Doe raised credibility concerns about Roe, but the University disregarded these credibility concerns as irrelevant or refused to investigate them.
- The University failed to clearly notify Doe of the conduct for which the University ultimately sanctioned him. Roe accused Doe of failing to inform her of his herpes diagnosis, and the University charged Doe as such. The University then found Doe did disclose his diagnosis, but determined Doe should have gone further to give Roe more information about herpes. There is no University policy outlining such a responsibility.
- The University ignored evidence that Roe was engaging in the same behavior for which the University investigated and sanctioned Doe.
Focusing mainly on the University’s decision to investigate and discipline Doe but refrain from investigating and disciplining Roe for similar behavior, the appeals court overturned the district court’s decision. The appeals court determined that there were material questions surrounding whether the University exhibited bias or discrimination based on sex. As such, summary judgment was inappropriate, and the case should continue.
Interestingly, one argument Doe raised with the appeals court is that the University’s decision to punish Doe and not Roe was due to archaic assumptions about sex and gender. Doe argued that the University assumed that an adult female enrolled as a junior in college is incapable of understanding the risks of sexual intercourse without her male partner educating her. Doe asserted that “refusing to acknowledge that Roe had an accountability for her own actions, her own choices, and her own conduct is ‘remarkably outdated.’”[1] Asserting that “decisions and statements that are predicated on ‘outdated’ and ‘outmoded’ assumptions demonstrate a university’s intent to treat one differently because of their gender,” the appeals court agreed that sex-based archaic assumptions provided the foundation for the University’s action.[2] Additionally, the appeals court held that it was an open question whether the University’s actions arose from the archaic view that a knowledgeable male had a duty to educate an unwitting female about the precise risks of herpes transmission. A jury should determine whether the University violated Title IX by absolving Roe of responsibility for her own risk assessments and placing that burden on Doe.
As a result, the appeals court determined that these issues merited further examination, not dismissal, and overturned the lower court’s decision.
KEY TAKEAWAYS
- Educational institutions must accurately charge respondents with policy violations and, if an investigation uncovers new facts impacting the charges, must provide notice to the parties of any changes in the charges that may occur. In this case, the University initially charged Doe with failing to notify Roe of his herpes diagnosis. However, by the end of the investigation, the University changed its charge, or at least shifted its interpretation of the charge, from “Doe didn’t notify” to “Doe notified but should have notified with more information.” Moving the target during the investigation raises significant due process concerns, and courts do not look kindly upon due process violations.
- Courts have repeatedly shown they will hold educational institutions accountable if their Title IX and/or student conduct processes raise due process concerns. While it is unusual to frame liability for a private university in due process terms, courts are also showing more willingness to do so, and the Fifth Circuit seems to be following the Third Circuit in doing so. Due process concerns open the door for courts to take a closer look at an institution’s process and decision.
- Colleges can mitigate due process liability risk by writing compliant policies and implementing those policies as written, by charging with precision, and by ensuring that the evidence reliably supports the finding.
- The appeals court was critical of the University’s reasons for punishing Doe and not Roe. The University claimed that it did not investigate Roe for reckless behavior because Doe never filed a formal complaint requesting the University investigate Roe. The appeals court disagreed and accepted that gender bias may have played a role. Therefore, it is appropriate for a jury to decide the issue. The appeals court may have been more deferential to the University’s decision to not investigate Roe, but having identified several due process concerns in the University’s investigation process, the appeals court was not in the mood to show deference.
[1] 2023 WL 3373316 at 9.
[2] Id.