Doe v. Univ. of Denver

952 F.3d 1182

John DOE, Plaintiff - Appellant,

v.UNIVERSITY OF DENVER; University of Denver Board of Trustees; Rebecca Chopp, individually and as agent for University of Denver; Kristin Olson, individually and as agent for University of Denver; Jean McAllister, individually and as agent for University of Denver; Kathryne Grove, individually and as agent for University of Denver; Eric Butler, individually and as agent for University of Denver, Defendants - Appellees.

No. 18-1162

United States Court of Appeals, Tenth Circuit.

FILED March 9, 2020

Philip A. Byler of Nesenoff & Miltenberg, LLP, New York, New York (Andrew T. Miltenberg, Stuart Bernstein, Tara J. Davis, and Jeffrey Berkowitz of Nesenoff & Miltenberg, LLP, New York, New York, and Michael J. Mirabella and Patricia Mellen of Michael J. Mirabella, P.C., Denver, Colorado, with him on the briefs), for Plaintiff - Appellant.

Jim Goh (E. Rayner Mangum with him on the brief), Constangy, Brooks, Smith & Prophete, LLP, Denver, Colorado, for Defendants - Appellees.

Before BACHARACH, McKAY, and CARSON, Circuit Judges.

Judge BACHARACH joins the opinion except for footnote 18.

McKAY, Circuit Judge.

This appeal involves the fairness of sexual-misconduct disciplinary proceedings at colleges and universities. In the district court, Plaintiff John Doe asserted that the disciplinary proceeding brought against him by Defendants, the University of Denver ("DU") along with several of its employees, violated his rights under the Fourteenth Amendment’s Due Process Clause and under Title IX. The court granted summary judgment to Defendants on the Fourteenth Amendment claim because Plaintiff had failed to show that DU was a state actor. The court also granted Defendants summary judgment on the Title IX claim, concluding that Plaintiff had adduced insufficient evidence of gender bias.¹

I. Fourteenth Amendment Due Process Claim

We turn first to Plaintiff’s due process claim. DU is a private school, and thus its actions are not normally subject to constitutional due process requirements. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n , 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) ("[S]tate action [is] subject to Fourteenth Amendment scrutiny[,] and private conduct (however exceptionable) ... is not."); Browns v. Mitchell , 409 F.2d 593, 594 (10th Cir. 1969) ("It is axiomatic that the due process provisions of the Fourteenth Amendment proscribe state action only and do not reach acts of private persons unless they are acting under color of state law." (internal quotation marks omitted)). As Plaintiff’s briefing suggests, his claim is cognizable only if DU may be deemed a state actor for purposes of constitutional due process. See Brentwood Acad. , 531 U.S. at 296, 121 S.Ct. 924 (outlining tests used to determine whether state action should be attributed to nominally private entities). Thus, at summary judgment, Plaintiff had the burden to produce evidence demonstrating that DU should be deemed a state actor. See Gallagher v. Neil Young Freedom Concert , 49 F.3d 1442, 1450, 1455–56 (10th Cir. 1995) (affirming summary judgment in favor of defendants in part because plaintiffs failed to produce evidence to satisfy state-action tests).

There are two constitutional sources of due process rights, the Fifth Amendment and the Fourteenth Amendment. Plaintiffs pursuing procedural due process claims based on actions by the federal government must proceed under the Fifth Amendment, while plaintiffs bringing such claims based on actions by state governments must proceed under the Fourteenth Amendment. See Koessel v. Sublette Cty. Sheriff’s Dep’t , 717 F.3d 736, 748 n.2 (10th Cir. 2013).

Plaintiff has eschewed any reliance on the Fifth Amendment. Plaintiff expressly relied only on the Fourteenth Amendment in his complaint and district court briefing, and he continues to do so on appeal even in the face of both the district court’s suggestion and DU’s assertion that the Fourteenth Amendment is inapposite for a due process claim based exclusively on the federal government’s activities. (See Appellant’s Opening Br. at 53–54 (arguing that, although the district court suggested "federal government activity is irrelevant to the 14th Amendment[,] ... the 14th Amendment ... appl[ies]").) Plaintiff is the master of his complaint. See Bledsoe v. Vanderbilt , 934 F.3d 1112, 1119 (10th Cir. 2019). We are satisfied that Plaintiff intended to bring this claim under the Fourteenth Amendment, and that is how we will assess it. See In re Storer , 58 F.3d 1125, 1129 & n.6 (6th Cir. 1995) (declining to assess claims under Fourteenth Amendment Due Process Clause where plaintiffs clearly intended to rely only on Fifth Amendment Due Process Clause).²

In support of his claim that DU was a state actor, Plaintiff relied solely on evidence of the federal government’s involvement in DU’s affairs. Specifically, Plaintiff pointed to (1) DU’s compliance with guidance from the Department of Education’s Office for Civil Rights regarding Title IX’s requirements that was contained in a 2011 Dear Colleague Letter ("DCL"),³ which, Plaintiff asserts, pressured DU to amend its policies in ways that were biased against male students accused of sexual misconduct; and (2) the threatened loss of federal funding if DU failed to conform to the DCL’s guidance. We have previously held, however, that evidence regarding the federal government’s involvement with a private school or its decision to discipline students has no bearing on whether the school is a state actor under the Fourteenth Amendment, which is concerned only with the actions of state governments. See Browns , 409 F.2d at 595 ("Inasmuch as ... 42 U.S.C. § 1983^{[4 ]} is concerned only with state action and does not concern itself with federal action[,] we lay to one side as entirely irrelevant any evidence concerning the participation of the federal government in the affairs of the University. And so it is state action with which we are here concerned and more particularly ... whether the State of Colorado ... [should be viewed as involved in] the challenged disciplinary proceeding." (citation and quotation marks omitted)).⁵ Thus, Plaintiff failed to adduce any relevant evidence to show that DU is a state actor for purposes of his Fourteenth Amendment claim.

In sum, although we agree with the district court that Plaintiff failed to demonstrate that DU was a state actor for purposes of his Fourteenth Amendment due process claim, we reach this conclusion on somewhat different grounds, namely that Plaintiff failed to adduce any evidence of a state’s involvement in the disciplinary proceeding he challenges. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1130 (10th Cir. 2011) ("[W]e may affirm on any basis supported by the record ...."). Accordingly, we will affirm the court’s decision to grant Defendants summary judgment on the due process claim.

II. Title IX Claim

We now turn to Plaintiff’s Title IX claim, which requires some background. Plaintiff is a male who enrolled as a freshman at DU in 2014. In October 2014, Plaintiff had a sexual encounter with Jane Doe, a female freshman, in his dorm room. Six months later, in April 2015, Jane’s boyfriend reported the encounter as an alleged sexual assault to a DU resident director. The resident director then spoke with Jane, who repeated the allegations and later filed with DU’s Office of Equal Opportunity a complaint of non-consensual sexual contact.

Under DU’s policies, a student’s non-consensual sexual contact with another is a policy violation. Prohibited sexual contact includes contact by "coercion," which the policy defines as "unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will," such as "continued pressure" after "someone makes clear that they do not want to engage in sexual contact." (Appellant’s App. at A139.)

Two of the named Defendants, Kathryne Grove, OEO’s director, and Eric Butler, an OEO investigator, investigated Jane’s allegations. The investigators separately interviewed Plaintiff and Jane twice in May and June 2015, allowing each of them to offer corrections to their own summary statements, which the investigators had drafted for them based on their respective interviews, and allowing Plaintiff to submit a list of witnesses for the investigators to interview. The investigators also interviewed other witnesses—Plaintiff’s roommate, a mutual acquaintance who was present in the dorm room before the encounter took place, Jane’s boyfriend, and the resident director who first received the allegations. In late June, the investigators issued a preliminary report to Plaintiff and Jane, allowing them to offer any further corrections to their own statements. The preliminary report, which did not make any findings or conclusions, offered Plaintiff the first opportunity to see Jane’s allegations against him.

In mid-July 2015, the investigators issued their final report, which depicted a he-said-she-said situation. After summarizing witness interviews, the investigators "f[ound] it more likely than not that [Plaintiff]’s actions ... resulted in non-consensual sexual contact with [Jane] by means of coercion in violation of [DU’s] policies." (Appellant’s App. at A159.) No hearing was held. Pursuant to its procedures, DU convened an outcome council to review the case and determine a sanction. The outcome council decided to permanently dismiss Plaintiff from DU. Plaintiff submitted an internal appeal challenging the investigation process, but it was denied.

In his complaint, Plaintiff claimed the disciplinary proceedings DU subjected him to violated Title IX. The district court granted Defendants summary judgment on the claim, concluding Plaintiff had failed to adduce evidence showing DU’s actions were motivated by gender bias.

"We review the district court’s summary-judgment order de novo, applying the same standard that the...