Roe v. St. John's Univ.

91 F.4th 643

Richard ROE, Plaintiff-Counter-Defendant-Appellant, v. ST. JOHN'S UNIVERSITY, Defendant-Appellee, Jane Doe, Defendant-Counter-Claimant-Appellee.

Docket No. 21-1125

United States Court of Appeals, Second Circuit

Argued: April 12, 2022

Decided: January 31, 2024

Peter G. Eikenberry (Michael Valentine, on the brief, The Law Office of Michael Valentine, Brooklyn, NY), Law Office of Peter G. Eikenberry, New York, NY, for Plaintiff-Counter-Defendant-Appellant;

Lyle S. Zuckerman (Michael J. Goettig, on the brief), Davis Wright Tremaine LLP, New York, NY, for Defendant-Appellee;

Chardaie C. Charlemagne (Victoria L. Stork, on the brief, Baker & Hostetler LLP, New York, NY), Baker & Hostetler LLP, San Francisco, CA, for Defendant-Counter-Claimant-Appellee.

Before: Sack, Parker, and Menashi,

Circuit Judges.^*

Judge Parker concurs in a separate opinion.

Judge Menashi dissents in a separate opinion.

Sack, Circuit Judge:

INTRODUCTION

St. John's University ("SJU"), headquartered in the New York City borough of Queens, disciplined male plaintiff Richard Roe for allegedly sexually assaulting two women, Jane Doe and Mary Smith,¹ in different countries, several months apart. Roe claims that anti-male bias influenced SJU's adjudication of the accusations against him, and based thereon, brought suit against SJU in the United States District Court for the Eastern District of New York for violating his rights under Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq., and under state contract law. Roe also sued Doe for defamation based on an alleged anonymous tweet that falsely accused Roe of sexual assault. Roe further contends that SJU's failure to adequately investigate his claims regarding the tweet subjected SJU to liability under Title IX and for breach of contract.

SJU moved to dismiss Roe's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court (Pamela K. Chen, J.) granted SJU's motion and dismissed Roe's suit because, the court concluded, Roe had failed to allege sufficient facts to support a minimal plausible inference of sex-based² discrimination by SJU. The court also declined to exercise supplemental jurisdiction over Roe's state-law breach of contract and defamation claims. Roe timely appealed, arguing principally that the district court's dismissal of his Title IX claims was erroneous. For the reasons set forth below, we disagree and therefore affirm the judgment of the district court.

We emphasize at the outset that our focus is on the decisions made and related actions taken by university officials patrolling the behavior of the university's students. Despite their operation as a panel in a manner much like a federal or state court adjudicating a case or controversy, the officials did not constitute a court of law. Moreover, while this case's facts involve charges of highly offensive sexual predation by a male student against two female fellow students, we express no opinion as to whether the university selected appropriate punishments for the male student's alleged transgressions. Instead, our review is principally concerned with whether the district court correctly concluded that the male student failed to plausibly allege that anti-male bias influenced the university's disciplinary process in violation of his rights under Title IX.

BACKGROUND

I. Factual Background

A. The Doe Incident

According to the allegations in Richard Roe's complaint in the district court: On April 12, 2018, Roe and Jane Doe were both SJU students studying in Paris, France, lodging in an SJU dormitory there. On their first night in the city, Roe and Doe visited a local club with several other SJU students. Doe asked Roe to dance with her, and he agreed. "[W]hen Roe was back in the dorm, he went to Doe's room and found her awake and on her phone." JA 12. "Doe invited Roe into her room and, thereafter, Doe took Roe's right hand and placed it upon her fully clothed breast." Id. Roe "immediately said, 'I am not interested in sex,'" and Doe responded, "[t]hen, get the hell out of here." Id. Roe then left.³

B. The Doe Incident's Aftermath

Doe submitted a complaint to SJU accusing Roe of sexual misconduct. SJU notified Roe of Doe's complaint on September 4, 2018, some five months after the events allegedly occurred. The following month, on October 3, 2018, SJU's "Conduct Board" held a "Conduct Hearing" with respect to Doe's allegations. Roe attended.

Although Roe asserts that SJU was required to follow its own internal policies and procedures when determining the validity of Doe's complaint against him, Roe has not alleged that this Conduct Hearing was required to provide him with all the procedural protections that he would receive if his case were tried in a federal court. Indeed, SJU's Student Code of Conduct and Conduct Process ("Student Code of Conduct") states that the applicable evidentiary standard in a sexual misconduct case is a preponderance of the evidence, a much lower burden of proof than the beyond a reasonable doubt standard that would apply in a federal criminal case.⁴ The Student Code of Conduct also states that "[s]trict conformity to the legal rules of evidence shall not be required at hearings." JA 227.

At the October 2018 Conduct Hearing, Roe stood accused of multiple charges in connection with the events of April 12. But the Conduct Board concluded that he had violated only one applicable Student Code of Conduct provision: that prohibiting non-consensual sexual contact. The Conduct Board sent Roe a letter informing him of this finding and notifying him that the Student Conduct Administrator had determined that Roe would receive, in addition to other sanctions, a one-semester suspension for his misconduct.

The Conduct Board's stated rationale for its misconduct finding was that:

[Roe] admitted in [sic] engaging in physical contact of a sexual nature with [Doe], and the evidence demonstrated a lack of affirmative consent to engage in such contact. Such evidence included [Doe's] intoxication, as described by multiple witnesses, and [Roe's] assertion, which was not disputed, that he was not impaired by alcohol.

JA 80-81.⁵ Roe appealed his suspension to the SJU administration's "Conduct Appeals Board" on November 7, 2018. The Appeals Board affirmed the decision and suspension on January 8, 2019, reasoning in part that "[Roe] had admitted to the physical touching at issue here and, thus, should have expected a sanction of some kind." JA 82.

C. The Smith Incident

According to Roe's complaint, another woman, Mary Smith, accused Roe of sexually assaulting her in December 2018, while Roe was serving his suspension based on the Doe allegations. Roe alleges in his complaint that on the night of December 15, 2018, Roe and Smith were both at a local bar in New York City where Smith became intoxicated. After the bar closed, a friend of Roe's agreed to drive Smith back to Roe's house. A short time after arriving there, Smith went outside to sleep on a concrete patio adjacent to the house. Roe invited Smith to sleep on a couch in the living room instead because it was raining and near freezing outside. Smith accepted. Because Roe was concerned that Smith's intoxication might cause her to vomit, "he propped her up on her side with her back against the sofa to ensure that she could not choke." JA 28. Roe then fell asleep at the foot of the couch, and Smith left Roe's home the next morning without incident.⁶

D. The Tweets

Roe alleges in his complaint that, on January 4, 2019, shortly after Smith spent the night at Roe's home during the previous month, the hashtag "#SurvivingSJU" was created, by whom we do not know. Roe further alleges that more than 2,000 tweets were posted under the hashtag on January 4 and that, as a result, it was the "number one hashtag" trending on Twitter in the United States from January 4 to January 6, 2019. JA 15, 17. SJU's student newspaper reported that in response to the hashtag and the public criticism that the tweets conveyed, SJU would investigate all claims posted under #SurvivingSJU.

Roe contends that he was the subject of one among the thousands of tweets published under the hashtag #SurvivingSJU. The tweet, which was posted by an anonymous user on January 4, the same day that the hashtag was created, included a picture of Roe and contained the message "[Roe] was allowed to stay abroad after raping me with no travel restrictions. Only got half a semester suspension." JA 72.

Roe asserts that "Doe almost instantly 'liked' the anonymously posted tweet, and less than 30 minutes later, posted in another tweet from her personal account that she had written a 'final statement' for the University Conduct Hearing ... instead of 'writing essays' for her classes." JA 15-16. Roe claims that "only Doe, Roe and [SJU] officials were informed of Roe's suspension and the reason for it" and that "the only person who could have authored the [allegedly defamatory] tweet was Doe." JA 16. Roe asserts that shortly after the tweet was published, a male SJU student threatened him via phone calls and text messages and a female SJU student punched him in the face at a bar.

On January 7, 2019, Roe's attorney brought the tweet to the attention of SJU officials. On January 16, SJU's Director of Title IX Compliance informed Roe that SJU could not reprimand the individual who posted the tweet because it could not determine his or her identity. On July 18, 2019, Roe's attorney again contacted an SJU official in an attempt to determine how SJU would respond to the allegedly defamatory and harassing tweet. SJU's attorney denied that SJU had any obligation to investigate Roe's claim that Doe was the tweet's author because SJU did not have any evidence implicating Doe.

E. The Smith Incident's Aftermath

On January 5, 2019—the day after the creation of #SurvivingSJU and the dissemination of the tweet accusing Roe of sexual assault—Smith filed a complaint with SJU against Roe...