Gash v. Rosalind Franklin University

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NICHOLAS GASH, )

)

Plaintiff, )

)

)

)

v. ) No. 1:23-cv-02054

)

)

ROSALIND FRANKLIN UNIVERSITY, )

et al., )

)

Defendant. )

Memorandum Opinion and Order

Plaintiff Nicholas Gash was expelled from Rosalind Franklin

University after the University found him responsible for

violating its Title IX Policy prohibiting sex-based misconduct.

He asserts that the University’s investigation and disciplinary

proceedings were infected with unlawful anti-male bias. In this

lawsuit, he claims that the University and its Board of Trustees

violated Title IX and Illinois’ Preventing Sexual Violence in

Higher Education Act, 110 ILCS 205/9.21. Gash also claims that

the University, the Board of Trustees, and three individuals

involved in the University’s investigation and disciplinary

proceedings are liable to him for breach of contract and

negligence.

Two motions to dismiss are pending, one by the individual

defendants and another by the University.1 Both motions proceed

under Fed. R. Civ. P. 12(b)(6) and argue that the Amended

Complaint fails to state any claim entitling Gash to relief. For

the reasons that follow, the motions are granted.

I.

In a recent decision denying Mr. Gash’s request to proceed

under a pseudonym, I summarized the facts underlying his claims.

See Doe v. Rosalind Franklin Univ., No. 1:23-CV-02054, 2023 WL

5338720, at *1–2 (N.D. Ill. Aug. 4, 2023). Gash realleges those

facts in his Amended Complaint, which recounts defendants’

allegedly unlawful investigation of a complaint made against him

by a fellow student (“Jane Roe”) and defendants’ putative

discrimination and misconduct in connection with the

disciplinary proceedings that followed. I reproduce below my

summary of the background facts and will expand upon them as

necessary in the course of my analysis. It bears recalling that

1 The University raises arguments for dismissal on behalf of

itself and the Board of Trustees, the latter of which it contends

is not a proper defendant. Gash offers no response to the

University’s argument concerning the Board of Trustees, which I

take as a concession that dismissal of the Board is appropriate.

See Midwest Generation EME, LLC v. Continuum Chem. Corp., 768 F.

Supp. 2d 939, 950 (N.D. Ill. 2010)(“failure to respond to an

opposing party’s argument implies concession”) (citing cases).

my factual recitation “is one-sided because the posture of the

case requires it to be.” Doe v. Purdue Univ., 928 F.3d 652, 656

(7th Cir. 2019).

According to the complaint, in November of 2021,

[Gash] played a “drinking game” at an off-campus party

at Jane’s house, where he consumed several alcoholic

drinks. [Gash] then went to a bar with Jane and others,

where he consumed more alcohol and became “very

intoxicated.” He then consumed a marijuana “edible”

and blacked out shortly thereafter. [Gash] claims to

remember nothing further from that night until he

awakened the next morning, fully clothed, on Jane’s

couch.

Approximately a week later, Jane asked to meet with

[Gash], and at their meeting she described a sexual

encounter between the two of them on the night of

[Gash]’s intoxication. Jane told [Gash] that she had

not consented to having sex with him. Having no memory

of the encounter due to his intoxication, [Gash] was

“shocked” to learn that Jane claimed he had sexually

assaulted her.

In March of 2022, Jane filed a formal complaint against

[Gash] pursuant to Title IX of the Education

Amendments Act of 1972, 20 U.S.C. § 1681 et seq. [Gash]

received a Notice of Allegations from the University’s

Vice President for Diversity, Equity, and Inclusion,

which did not include any details of the allegations

against him or identify the specific policies he

allegedly violated. A second Notice of Allegations

informed [Gash] that Jane claimed he had “engaged in

unwanted verbal and physical conduct and touching,

aggressive pushing, holding down, moving around, and

unconsensual (sic) sex with her more than once,” and

that such behavior “could constitute sexual assault,

sexual violence, and/or sexual harassment” under the

University’s Title IX Policy.

[Gash]’s complaint goes on to allege that following

interviews with Jane, [Gash], and six witnesses, the

University issued an Investigative Report on May 12,

2021. Four days later, [Gash] initiated the process to

withdraw from the University. After [Gash] was

informed that his withdrawal was approved, he emailed

defendant Barbato stating that he “did not plan on

participating in the Title IX Hearing” because as a

former student, the University’s policies no longer

applied to him. [Gash] thus requested that the

proceedings be dropped. But on May 31, [Gash] learned

that his withdrawal had not been completed, and that

the Title IX hearing would go forward. A Final

Investigative Report was issued, and a virtual hearing

was held in which [Gash] participated. Following these

proceedings, [Gash] was found responsible for

violating the University’s Title IX policy and

expelled from the University. [Gash] appealed the

decision but was unsuccessful. ...

[Gash] complains that the University’s investigation

was shoddy and biased; that the University’s decision

to proceed after his attempt to withdraw was arbitrary

and reflects its “agenda” of improperly exercising

Title IX jurisdiction for the purpose of condemning

him; and that the proceedings as a whole were conducted

in a manner that discriminated against him based on

his sex.

Id. at *1-*2.

II.

To survive defendants’ motions to dismiss, Gash must allege

facts that “raise a right to relief above the speculative level.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This

means that he “must plead particularized factual content, not

conclusory allegations,” from which I may infer that defendants

are liable for the alleged misconduct. Doe v. Columbia Coll.

Chicago, 933 F.3d 849, 854 (7th Cir. 2019). My task at this stage

“is not to determine what allegations are supported by the

evidence but to determine whether [Gash] is entitled to relief

if everything that he says is true.” Doe v. Purdue Univ., 928

F.3d 652, 656 (7th Cir. 2019). Accordingly, I assume the truth

of his factual allegations, but I disregard any legal conclusions

and “threadbare recitals” supported only by “conclusory

statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678–78 (2009).

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 educational program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681(a). A Title IX

discrimination claim such as the one Gash asserts requires

allegations suggesting that: “(1) the educational institution

received federal funding, (2) plaintiff was excluded from

participation in or denied the benefits of an educational

program, and (3) the educational institution in question

discriminated against plaintiff based on gender.” Columbia Coll.

Chicago, 933 F.3d at 854. Only the third element is at issue

here.

Like other plaintiffs around the country who have pursued

Title IX claims arising out of disciplinary proceedings against

them based on allegations of sexual misconduct, Gash argues that

external pressure from the federal government—embodied in policy

documents such as the Department of Education’s 2011 “Dear

Colleague Letter”2 and its 2014 “Questions and Answers on Title

IX and Sexual Violence” (the “2014 Q&A”)3—caused universities to

take an overzealous approach to investigating and punishing

sexual misconduct among students and to implement policies that

discriminated against men. See, e.g., Doe v. Samford Univ., 29

F.4th 675, 691 (11th Cir. 2022); Doe v. Univ. of Denver, 952

F.3d 1182, 1192 (10th Cir. 2020); Schwake v. Arizona Bd. of

Regents, 967 F.3d 940 (9th Cir. 2020); Doe v. Univ. of Scis.,

961 F.3d 203, 205 (3d Cir. 2020); Doe v. Columbia Coll. Chicago,

933 F.3d 849 (7th Cir. 2019); Doe v. Miami Univ., 882 F.3d 579

(6th Cir. 2018); Doe v. Columbia Univ., 831 F.3d 46 (2d Cir.

2016)); Doe v. Univ. of Chicago, No. 16 C 08298, 2017 WL 4163960

(N.D. Ill. Sept. 20, 2017). Indeed, the Seventh Circuit has

explained that the 2011 Dear Colleague Letter “ushered in a more

rigorous approach to sexual misconduct allegations.” Doe v.

Purdue Univ., 928 F.3d 652, 668 (7th Cir. 2019). Among other

things, it “encouraged schools to publish their discrimination

policies, adopt and publish grievance procedures, ensure their

employees are trained to report and effectively respond to

2 An archived version of the letter is available here:

https://www2.ed.gov/print/about/offices/list/ocr/letters/colle

ague-201104.html.

3 An archived version of this document is available here:

https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-

title-ix.pdf.

incidents of harassment, and appoint a Title IX coordinator.”

Columbia Coll. Chicago, 933 F.3d 849, 855 (7th Cir. 2019).

Gash alleges that while the Dear Colleague Letter directed

universities “to take immediate action” to address sexual

violence and harassment, it “de-emphasized fair process” for

those accused of sexual misconduct by failing to require a

presumption of innocence; directing schools to minimize the

burden on the complainant; limiting cross-examination; and

requiring schools to apply a “preponderance of the evidence”

standard in evaluating allegations of sexual misconduct, among

other things. Am. Compl. at ¶ 24. Although Gash concedes that

both the 2011 Dear Colleague Letter and the 2014 Q&A were

rescinded long before the investigation and proceedings at issue

here took place and were replaced by interim guidance emphasizing

that “[a]ny rights or opportunities that a school makes available

to one party during the investigation should be made available

to the other party on equal terms,” Am. Compl. at ¶ 32, he

alleges that “pressure on the University to vindicate female

students alleging violations of [the University’s Title IX]

Policy resulted in the University subjecting [him] to a biased

and unfair process, which was tilted in favor of the female

complaint and against him as a male respondent,” id. at ¶ 205.

Many courts, including the Seventh Circuit, “have treated

the Dear Colleague letter as relevant in evaluating the

plausibility of a Title IX claim.” Purdue Univ., 928 F.3d at 668

(7th Cir. 2019); accord, Schwake 967 F.3d at 948–49; Doe v. Baum,

903 F.3d 575, 586 (6th Cir. 2018); Columbia Univ., 831 F.3d at

56–58. “Public pressure is not enough on its own to support a

claim of discrimination, however.” Doe v. Univ. of S. Indiana,

43 F.4th 784, 792 (7th Cir. 2022); see also Columbia Coll., 933

F.3d at 855 (a plaintiff must combine general allegations about

public pressure “with facts particular to his case to survive a

motion to dismiss.”). While “[t]he letter and accompanying

pressure gives [the plaintiff] a story about why [the University]

might have been motivated to discriminate against males accused

of sexual assault,” specific facts are required to support an

inference that the university’s disciplinary decision was in

fact motived at least partly by the plaintiff’s sex. Purdue

Univ., 928 F.3d at 669. In this connection, Gash enumerates the

following flaws in the University’s Title IX proceedings: 1) the

University failed to afford him the presumption of innocence; 2)

the University lacked jurisdiction over the incident Roe

alleged; 3) defendant Barbato interfered with his withdrawal

from the University; 4) the hearing panel “displayed blatant

bias” toward plaintiff during the hearing4; 5) the hearing panel

curtailed his advisor’s cross-examination of witnesses “for the

sake of ‘efficiency’” but did not do the same to Roe’s advisor;

6) the hearing panel made statements supportive of Roe during

the hearing; 7) the hearing panel interrupted Gash’s advisor’s

cross-examination to hear Roe’s witness’s testimony; 8) the

hearing panel did not permit Gash to observe the testimony of

Roe’s witnesses; 9) the investigator and hearing panel ignored

flaws and inconsistencies in Roe’s testimony; and 10) the “Appeal

Decision Maker” summarily dismissed Gash’s appeal without

considering its merits.5 Am. Compl. at ¶¶ 204, 144, 147. These

alleged flaws do not plausibly suggest gender discrimination.

To begin, “a plaintiff cannot prove gender discrimination

by merely identifying mistakes or imperfections in the process.”

S. Indiana, 43 F.4th at 793 (citing Samford University, 29 F.4th

at 688 (11th Cir. 2022) (“A deviation from a Title IX policy is

not, in and of itself, a violation of Title IX.”). At least one

of the alleged errors—the hearing panel’s failure to allow Gash

to observe the testimony of Roe’s witnesses—applied equally to

4 Plaintiff’s allegation of bias is both conclusory and a legal

conclusion, so I need not accept its truth.

5 This allegation, too, is too conclusory to merit a presumption

of truth. Moreover, it is odds with plaintiff’s allegation

elsewhere that defendant Parsley issued an appeal decision

“denying every point he made in his appeal.” Am. Compl. at ¶ 166.

Roe. See Am. Compl., at ¶ 149 (“the hearing panel removed both

parties from the hearing during the entirety of the witness

presentations”) (emphasis added). Accordingly, it does not

support an inference of sex discrimination. Univ. of S. Indiana,

43 F.4th at 796 (a “possible procedural error that applied

equally to both Jane and John does not support an inference of

anti-male bias against John.”). Moreover, all of the putative

errors are facially “divorced from gender,” Columbia Coll.

Chicago, 933 F.3d at 856, so they demonstrate, at most “a pro-

victim bias” that does not support a claim for sex discrimination

because “both women and men can be victims of sexual assault.”

Johnson v. Marian Univ., 829 F. App'x 731, 733 (7th Cir. 2020);

see also Doe v. Loyola Univ.-Chicago, No. 20 CV 7293, 2021 WL

2550063, at *7 (N.D. Ill. June 22, 2021) (“a pro-victim bias is

not sex bias”), appeal dismissed sub nom. Doe v. Loyola Univ. of

Chicago, No. 21-2360, 2021 WL 6689520 (7th Cir. Aug. 9, 2021).

Indeed, the investigation and proceedings the Amended

Complaint describes do not compare to those that courts have

held sufficient to raise an inference of sex discrimination. In

Purdue University, for example, the court observed that because

“the Office of Civil Rights—a sub-agency of the Department of

Education—had opened two investigations into Purdue during 2016,

the pressure on the university to demonstrate compliance was far

from abstract.” Purdue Univ., 928 F.3d at 668. Around the same

time, a university center dedicated to supporting victims of

sexual violence posted an article from The Washington Post titled

“Alcohol isn’t the cause of campus sexual assault. Men are.” Id.

at 669. Against this backdrop, the court considered the

plaintiff’s allegations that two of the three hearing panel

members “candidly stated that they had not read the investigative

report” and took no evidence into account other than the victim’s

accusations, 928 F.3d at 658, 669; that the defendants failed to

give the plaintiff a copy of the investigation report—which

falsely stated that he had “confessed” to the accusations—prior

to his hearing, id. at 657; that the defendants “chose to credit

Jane’s account without hearing directly from her,” id. at 669;

and that the defendants refused to allow the plaintiff to present

any witnesses, including one who would have stated that he was

in the room at the time of the alleged assault and that the

victim’s account of the events was false, id. Taken together,

the court held that these allegations raised a plausible

inference of sex discrimination. Purdue Univ., 928 F.3d at 667-

68.

Gash’s allegations are nothing like these. Gash admits that

by the time defendants investigated Roe’s allegations, the

policies that he claims caused universities to implement

discriminatory procedures had been rescinded and replaced with

guidelines containing specific provisions to ensure fairness to

those accused. And indeed, Gash received the investigation

report in advance of the hearing and had the opportunity to

present witnesses, to cross-examine Roe, and to question

witnesses before the hearing panel. The specific conduct Gash

attributes to defendants—for example, that the University

elected to pursue Roe’s complaint even though the events at issue

occurred off campus and rejected Gash’s effort to terminate the

Title IX proceedings after he attempted to withdraw from the

University; that defendant Kind-Keppel failed to “ask Roe

probing questions to discern the credibility or logic of her

account”; that defendant Barbato “commented unfavorably on

Plaintiff’s decision to refrain from answering any substantive

questions during his interview due to his lack of memory of the

relevant events”; and that hearing panel “instructed Plaintiff’s

advisor to be “a little more direct and efficient [in] your

questioning, so that we can get through this,” Am. Compl. at

¶¶ 167, 94, 127(c), 121, 144—even if erroneous, are no more

suggestive of sex discrimination than they are of lawful

alternative explanations, including incompetence, impatience, or

pro-complainant bias. See Doe v. Samford Univ., 29 F.4th 675,

689, 692 (11th Cir. 2022) (where procedural irregularities are

susceptible to obvious alternative explanations such as

“ineptitude, inexperience, and pro-complainant bias...Doe’s

allegations about a government policy that has been rescinded

and replaced do not assist him in crossing the line between

possibility and plausibility of entitlement to relief[.]”)

(internal quotation marks and citation omitted); accord Univ. of

S. Indiana, 43 F.4th at 793 (“[f]ew trials in civil courts are

error-free, but appellate courts do not quickly infer that

procedural errors in a trial show the judge was biased.”).

Gash’s allegations are likewise distinct from those in Doe

v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016), where the court

reversed dismissal of the plaintiff’s Title IX claim because the

plaintiff had alleged not only that federal policies encouraged

universities in general to take an overzealous approach to

investigating and punishing sexual misconduct among students,

but also that “during the period preceding the [plaintiff’s]

disciplinary hearing, there was substantial criticism of the

University, both in the student body and in the public media,

accusing the University of not taking seriously complaints of

female students alleging sexual assault by male students.” Id.

at 57. In addition, the plaintiff alleged that the university’s

Title IX investigator failed to tell him that he could submit

his own written statement to her or to the disciplinary panel;

failed to advise the plaintiff that he could seek the support of

a student advocate or the advice and counsel of his Dean of

Students; and failed to interview any of the witnesses the

plaintiff identified. See Columbia Univ., 831 F.3d at 49-50.

None of these things happened to Gash.

In short, the picture Gash paints is of an allegedly

slipshod investigation followed by a hearing in which the

decisionmakers elected to credit Roe’s improbable account of the

alleged assault while taking a poor view of plaintiff’s inability

to offer a contrary account due to his state of intoxication.

However unfair plaintiff may perceive the University’s approach,

the process he describes does not suggest that it discriminated

against him based on his sex. See Doe v. Columbia Coll. Chicago,

299 F. Supp. 3d 939, 955 (N.D. Ill. 2017), aff'd, 933 F.3d 849

(7th Cir. 2019) (even if aspects of the “truth-seeking process

were unfair” to plaintiff, they do not suggest sex discrimination

absent allegations that a female student in his position would

be treated differently) (citation omitted).

Gash’s state claims require far less discussion.6 With

respect to his contracts claim, Gash concedes that this claim

6 I resolve these claims in the discretionary exercise of my

supplemental jurisdiction. Although federal courts generally

relinquish jurisdiction over state claims when all federal

claims are dismissed prior to trial, Wright v. Assoc. Ins. Cos.,

29 F.3d 1244, 1251 (7th Cir. 1994), whether to retain or

must be dismissed as to the individual defendants because he had

no contractual relationship with any of them. Indeed, a breach

of contract claim requires Gash to allege: “(1) the existence of

a valid and enforceable contractual promise, (2) a breach of

that promise, (3) plaintiff performed his contractual

obligations, and (4) resultant damages.” Columbia Coll. Chicago,

933 F.3d at 858. In Columbia College Chicago, the Seventh Circuit

explained:

Illinois courts have expressed a reluctance to

interfere with academic affairs and have held that a

student’s breach of contract claim must involve

decisions that were arbitrary, capricious, or made in

bad faith. [Raethz v. Aurora Univ., 805 N.E.2d 696,

699 (Ill. 2004)]. Columbia would not be liable even if

we find it exercised its academic judgment unwisely;

rather it must have disciplined a student without any

rational basis. Frederick v. Northwestern Univ. Dental

School, 247 Ill. App. 3d 464, 187 Ill. Dec. 174, 617

N.E.2d 382, 387 (1993).

Id. Accordingly, the burden on Gash “is high,” as he may

avoid dismissal only if his allegations plausibly suggest that

relinquish jurisdiction is “committed to the district court’s

judgment.” RWJ Mgmt. Co. v. BP Prods. N. Am., Inc., 672 F.3d

476, 479 (7th Cir. 2012). I make the basis for my jurisdiction

clear because although the Amended Complaint asserts diversity

as an additional basis for federal jurisdiction, its factual

allegations—which identify only the individual defendants’ state

of residence, not their citizenship—do not identify the

defendants’ citizenships—do not support my exercise of diversity

jurisdiction. Guar. Nat. Title Co. v. J.E.G. Assocs., 101 F.3d

57, 59 (7th Cir. 1996) (“[w]hen the parties allege residence but

not citizenship, the court must dismiss the suit.”).

the University “did not exercise its academic judgment at all,

instead acting arbitrarily or in bad faith,” id. (quoting Raethz,

805 N.E.2d at 700), or that it disciplined him “without any

rational basis.” Id. Whatever the shortcomings in its Title IX

proceedings, that is not a reasonable reading of the facts

alleged.

As for his negligence claim, Gash offers no meaningful

response to defendants’ argument that Illinois common law does

not recognize the negligence theory he asserts. Gash claims that

defendants owed him a “duty to conduct a fair, impartial and

complete investigation,” and a “duty to conduct a fair

adjudication process.” Am. Compl. at ¶ 122. But courts in this

district and elsewhere have “specifically rejected negligence

claims by students claiming they were wrongly disciplined for

sexual assault and that the university did not properly apply

its policies.” Columbia Coll. Chicago, 299 F. Supp. 3d at 963

(N.D. Ill. 2017) (citing cases). Gash does not engage with this

case law, cite any authority to the contrary, or otherwise

articulate a basis for departing from these decisions.

This leaves only Gash’s claim under the Illinois Preventing

Sexual Violence in Higher Education Act (the “Act”), 110 ILCS

155/1 et seq., which “does not have an explicit private right of

action.” O’Shea v. Augustana Coll., 593 F. Supp. 3d 838, 852

(C.D. Tll. 2022). As the court observed in O’Shea, “where no

court has previously determined whether a private right of action

exists under a state statute, many federal courts, including

this Court, have decided that analyzing the purpose and intent

behind a state statute to determine whether to imply a private

right of action seems best addressed by a state court on first

impression.” Id. at 853 (citing cases) (alterations, internal

quotation marks, and citations omitted). Gash concedes that this

claim should be dismissed without prejudice on this reasoning.

See Opp., ECF 35 at n.9.

Til.

For the foregoing reasons, defendants’ motions to dismiss

are granted.

ENTER ORDER:

ate E. Bucklo

United States District Judge

Dated: September 11, 2023

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