Doe v. Bd. of Trs. of Whitman Coll.

670 F.Supp.3d 1155

John DOE, Plaintiff, v. BOARD OF TRUSTEES OF WHITMAN COLLEGE, a non-profit corporation, Defendant.

No. 4:23-CV-05051-MKD

United States District Court, E.D. Washington

Signed April 25, 2023

Lara R. Hruska, Alexander F. Hagel, Cedar Law PLLC, Seattle, WA, for Plaintiff.

Michael Porter, Miller Nash LLP, Portland, OR, for Defendant.

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

ECF No. 8

MARY K. DIMKE, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff John Doe's Motion for Temporary Restraining Order ("TRO"). ECF No. 8. On April 24, 2023, the Court held a hearing on Plaintiff's motion. Lara Hruska appeared on behalf of the Plaintiff. Michael Porter appeared on behalf of Defendant Board of Trustees of Whitman College ("Whitman").

Plaintiff's Complaint, ECF No. 1-1, alleges discrimination in violation of Title IX of the Education Amendments Act, 20 U.S.C. § 1681(a) ("Title IX"), breach of contract, breach of the covenant of good faith and fair dealing, and violations of the Washington Consumer Protection Act, RCW 19.86 ("CPA"), all arising out of his expulsion from Whitman. The instant motion seeks a TRO to compel Whitman to rescind his expulsion imposed as a result of a Title IX disciplinary hearing so that he may complete the semester.

The Court has considered the motion and the record and is fully informed. Plaintiff's Motion for TRO is DENIED. As set forth below, the Court sets a scheduling conference in this matter. The parties shall confer prior to the conference and be prepared to present a joint proposed schedule.

BACKGROUND

The following background facts are derived from the evidence and are generally not in dispute. In September 2019, Plaintiff was a student at Whitman. ECF No. 1-1 at 3 ¶ 8; ECF No. 8-1 at 16. From September 2019 to December 2019, Plaintiff had a sexually active relationship with another student, hereinafter referred to as "Complainant." ECF No. 1-1 at 3 ¶ 8; ECF No. 8-1 at 16-17. In 2021, Complainant began to allege publicly and privately that they did not consent to at least some of the sexual contact with Plaintiff. ECF No. 1-1 at 6-9 ¶¶ 26-35; ECF No. 8-1 at 17-18. In spring 2022, Complainant lodged a Title IX complaint against Plaintiff with Whitman. ECF No. 1-1 at 8 ¶ 36; ECF No. 8-1 at 2 ¶ 5.

Whitman maintains a Student Handbook that includes a section devoted to Student Rights and Responsibilities. ECF No. 8-1 at 149-55. Whitman maintains a policy for the resolution of grievances for sexual harassment, discrimination, and sexual misconduct. ECF No. 8-1 at 156-86; ECF No. 9-1 at 2-3 ¶ 2, 6-36.

Whitman retained a third-party investigator to conduct an investigation that involved interviews of Complainant, Plaintiff, and a number of witnesses. ECF No. 1-1 at 8-10 ¶¶ 37-45; ECF No. 8-1 at 8-75; ECF No. 9-1 at 2 ¶ 4. On November 11, 2022, the investigator completed a draft report. ECF No, 1-1 at 10 ¶ 45. On November 30, 2022, Plaintiff submitted a response to the draft report. ECF No. 1-1 at 10 ¶ 48; ECF No. 8-1 at 77-105. On December 14, 2022, the investigator completed a Final Investigation Report. ECF No. 8-1 at 8-75. On January 20, 2023, Whitman held a Title IX hearing. ECF No. 1-1 at 15 ¶ 62; ECF No. 9-1 at 2 ¶ 6. On February 13, 2023, the hearing panel issued a final determination. ECF No. 8-1 at 114-28. On February 23, 2023, Plaintiff appealed the decision. ECF No. 8-1 at 130-44. On March 22, 2023, Whitman's Appeals Chair upheld the hearing panel's determination. ECF No. 8-1 at 145-46.

On March 28, 2023, Whitman expelled Plaintiff. ECF No. 9-1 at 3 ¶ 8. On March 29, 2023, Plaintiff's counsel sent a draft Complaint and Motion for a TRO to counsel for Whitman. ECF No. 9-2 at 1 ¶ 2. Plaintiff filed the Complaint, verified under penalty of perjury, and a Motion for TRO with the Superior Court for Walla Walla County, which the clerk dated April 14, 2023. ECF No. 1-1; ECF No. 1-2 at 15-36. On April 19, 2023, Defendant filed a Notice of Removal with the Eastern District of Washington. ECF No. 1. On April 20, 2023, the Court held a status conference and set a scheduling order to hear the TRO matter, given one had been filed in the state court proceeding. ECF No. 7. Pursuant to the scheduling order issued, on April 21, 2023, Plaintiff filed a renewed Motion for TRO with this Court, and on April 24, 2023, Whitman filed a response. ECF Nos. 8, 9.

LEGAL STANDARD

"[T]he legal standards applicable to TROs and preliminary injunctions are 'substantially identical.' " Washington v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017) (quoting Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001)). To obtain a TRO, "a plaintiff must establish 'that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.' " No on E v. Chiu, 62 F.4th 529, 536 (9th Cir. 2023) (quoting Winter v. NRDC, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). The court is to apply a "sliding scale" approach to these factors; a strong showing of one element may offset a weaker showing of another. hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1188 (9th Cir. 2022). "[W]hen the balance of hardships tips sharply in the plaintiff's favor, the plaintiff need demonstrate only serious questions going to the merits." Id. (quotations omitted).

It is generally the party seeking an injunction's burden to demonstrate that injunctive relief is warranted. Right to Life of Cent. Cal. v. Bonta, 562 F. Supp. 3d 947, 955 (E.D. Cal. 2021). The rules of evidence are relaxed in preliminary injunctive proceedings, and a preliminary injunction may only be awarded upon a clear showing of evidence supporting each factor. Perlot v. Green, 609 F. Supp. 3d 1106, 1116 (D. Idaho 2022).

"A prohibitory injunction maintains the status quo whereas a mandatory injunction 'goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored.' " Doe v. Samuel Merritt Univ., 921 F. Supp. 2d 958, 962-63 (N.D.Cal.2013) (quoting Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (internal quotation marks omitted)). The status quo is the "last, uncontested status which preceded the pending controversy." Id. (quotations omitted).

DISCUSSION

Defendant argues that the instant request is one for a "mandatory injunction" and therefore more difficult to attain. ECF No. 9 at 14. Plaintiff's last, uncontested status preceding the controversy between the parties is as an enrolled student. His expulsion is the principal controversy giving rise to his claims. Therefore, the Court considers the instant request to be one for a "prohibitory injunction" to preserve the status quo. See Samuel Merritt Univ., 921 F. Supp. 2d at 963. The Court addresses each of the Winter factors in turn.

A. Likelihood of Success on the Merits

Plaintiff's claims arise under Title IX, state contract law, and state statutory law. The Court considers Plaintiff's likelihood of success in each claim.

1. Title IX

"Title IX provides that '[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .' " Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 946 (9th Cir. 2020) (quoting 20 U.S.C. § 1681(a)). Whitman submits the Declaration of Cassandre Beccai, the Director of Equity and Compliance and Title IX coordinator for Whitman, who concedes that Whitman is subject to Title IX. ECF No. 9-1 at 1-2 ¶ 2.

Title IX encompasses diverse forms of discrimination on the basis of sex. Id. at 946 (citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005)). One such theory, called "selective enforcement," is when, "regardless of the student's guilt or innocence, the severity of [a] penalty and/or the decision to initiate [a] proceeding was affected by the student's gender." Id. at 947; Austin v. Univ. of Or., 925 F.3d 1133, 1138 (9th Cir. 2019); Yusuf v. Vassar College, 35 F.3d 709, 715 (2d Cir. 1994). Plaintiff, here, advances a selective enforcement theory. ECF No. 8 at 7.

As an initial matter, to support his argument that the Court should grant injunctive relief, Plaintiff cites to the Ninth Circuit's pleading standard for Title IX claims, as explained in Schwake, 967 F.3d at 947, and in Doe v. Regents of the Univ. of Cal., 23 F.4th 930, 932 (9th Cir. 2022). ECF No. 8 at 7-8 ("discrimination need not be the only plausible explanation or even the most plausible explanation for a Title IX claim to proceed."). In each case, the Ninth Circuit reversed dismissal of a Title IX complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

While the cases are instructive on the requisite elements of Title IX claims and the types of evidence that may support them, insofar as Plaintiff aims to meet the pleading standard to attain injunctive relief, his reliance is misplaced. Plaintiff may not simply rest upon factual allegations; he must demonstrate that he is likely to prevail. Geo Grp., Inc. v. Newsom, 50 F.4th 745, 753 (9th Cir. 2022); see also Doe v. Univ. of S. Ind., 43 F.4th 784, 791 (7th Cir. 2022) ("In assessing the merits, we do not accept [movant's] allegations as true, nor do we give him the benefit of all reasonable inferences in his favor, as would be the case in evaluating a motion to dismiss on the pleadings.") (collecting cases). Further, "[a] preliminary injunction is an extraordinary remedy never awarded as of right." Geo Grp., 50 F. 4th at 753. At a minimum, and only if Plaintiff also demonstrates that the "hardship balance" tips in his favor, Plaintiff must demonstrate "serious questions going to the merits" of his claim. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 201...