Doe v. Purdue University

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

MARY DOE and NANCY ROE, )

Plaintiffs, )

)

v. ) CAUSE NO.: 4:18-CV-89-JEM

)

PURDUE UNIVERSITY, et al., )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment as to

Plaintiff Nancy Roe [DE 53], filed by Defendants on March 4, 2021. On April 30, 2021 Plaintiff

Roe filed a response, and Defendants filed a reply on May 21, 2021.

I. Procedural Background

On November 13, 2018, Plaintiffs, female students, filed an eight count Complaint against

Defendants, their former University and several of its administrators, alleging that they were

assaulted in unrelated incidents by male students at Purdue University and were then

wrongfully expelled, with the expulsions later reduced to suspensions. Plaintiffs separately

reported the incidents to Purdue. According to the Complaint, Purdue investigated and found

that Plaintiff Mary Doe had “fabricated” her allegation and Plaintiff Nancy Roe had “reported

[her] assault maliciously.” Plaintiffs allege that Purdue “has implemented a policy . . . wherein

women who cannot prove their claims to the satisfaction of Purdue decisionmakers face

discipline up to expulsion at Purdue,” and assert that both Plaintiffs were wrongly suspended.

After a motion to dismiss was granted in part, the remaining counts allege violations of

Title IX (counts I and II), retaliation under Title IX (counts III and IV), deprivation of civil rights

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under § 1983 against the individuals in their official capacity (Counts V and VI), and individual §

1983 liability (Counts VII and VIII).

The parties filed forms of consent to have this case assigned to a United States Magistrate

Judge to conduct all further proceedings and to order the entry of a final judgment in this case.

Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

II. Summary Judgment Standard

The Federal Rules of Civil Procedure mandate that motions for summary judgment be

granted “if the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 further requires the entry

of summary judgment, after adequate time for discovery, against a party “who fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (citing Fed. R. Civ. P. 56(c)). “[S]ummary judgment is appropriate – in fact, is mandated –

where there are no disputed issues of material fact and the movant must prevail as a matter of law.

In other words, the record must reveal that no reasonable jury could find for the non-moving party.”

Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and

quotations omitted).

Once a properly supported motion for summary judgment is made, the non-moving party

cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See

Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e)

provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address

another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact

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undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting

materials B including the facts considered undisputed – show that the movant is entitled to it . . .”

Fed. R. Civ. P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).

Thus, to demonstrate a genuine issue of fact, the nonmoving party “must do more than simply

show that there is some metaphysical doubt as to the material facts,” but must “come forward with

‘specific facts showing that there is a genuine issue for trial.’ (emphasis in original)” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P.

56(e)).

In viewing the facts presented on a motion for summary judgment, a court must construe

all facts in a light most favorable to the non-moving party and draw all legitimate inferences in

favor of that party. See Liberty Lobby, 477 U.S. 242, 255 (1986); Srail v. Vill. of Lisle, 588 F.3d

940, 948 (7th Cir. 2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995).

A court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses,

or to determine the truth of the matter, but instead to determine whether there is a genuine issue of

triable fact. See Liberty Lobby, 477 U.S. at 249-50.

III. Material Facts

Northern District of Indiana Local Rule 56-1 requires the moving party to include with its

motion for summary judgment a “‘Statement of Material Facts’ that identifies the facts that the

moving party contends are not genuinely disputed.” N.D. Ind. L.R. 56-1(a). In response, the

opposing party is obligated to file a “‘Statement of Genuine Disputes’ that identifies the material

facts that the party contends are genuinely disputed.” N.D. Ind. L.R. 56-1(b)(2). In this case,

Defendants included a Statement of Material Facts within their Memorandum in Support of Motion

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for Summary Judgment, along with appropriate citations to supporting evidence. Plaintiff Roe

included a Statement of Material Facts within her Response in Opposition to Motion for Summary

Judgment; however, Roe’s Statement of Material Disputes sets forth only broad categories of

disputes, three of the four couched as legal disputes rather than factual ones, and does not identify

particular facts which are disputed.

A. Undisputed Facts

Roe was a sophomore at Purdue in the spring of 2017. She attended a party on April 17,

2017, at which she drank alcohol. Upon returning to her dorm around 2:00 a.m., Roe realized that

she did not have her dorm key; she therefore asked a Resident Assistant to let her into her dorm

room. The Resident Assistant advised her to go to the dorm hall front office for a spare key. Roe

did so.

On April 22, 2017, Roe texted the same Resident Assistant: “So Monday night, after I

knocked on your door I was sexually assaulted by the guy who walked me back from a party.”

Defs.’ Br. Ex. A [DE 54-2]. On April 25, 2017, Roe and her then-boyfriend met with a different

Resident Assistant and Roe advised that Resident Assistant she had been sexually assaulted.

On April 23 and May 3, 2017, Roe was contacted by the Office of Institutional Equity Title

IX specialist to discuss the allegations of sexual assault and information received during the course

of the investigation. On May 17, 2017, Dean of Students Sermersheim advised Roe that Purdue

was exercising its right to investigate Roe’s allegations pursuant to its Anti-Harassment Policy and

other applicable policies. In that notice, reference is made to Roe’s allegation of sexual assault and

the allegation that Male Student B made a recording of part or all of the encounter without Roe’s

consent. On May 30, 2017, Roe was provided with a copy of Male Student B’s written response

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to Roe’s complaint. During the investigation, Purdue’s investigators interviewed people, including

Roe and Male Student B. They also reviewed Male Student B’s audio recording, dorm hall videos

and photos, and text messages.

Roe had sex with Male Student B in the early morning hours of April 18, 2017. Male

Student B made an audio recording of Roe and of portions of the sexual encounter, including the

two arranging to meet the afternoon of April 18, 2017, for a second sexual encounter. Roe was

unaware Male Student B was recording but did learn about the recording during Purdue’s

investigation into her allegations. Roe and Male Student B had sex on the afternoon of April 18,

2017, in Roe’s dorm room.

Purdue’s investigators interviewed friends of Roe and examined text messages exchanged

between Roe and those friends, as well as discussions and text messages between Roe and her

then-boyfriend. In those discussions and text messages, Roe told her friends of the encounters,

used the phrase “hooked up” and expressed remorse over “cheating” on her then-boyfriend. In the

discussions with her then-boyfriend, Roe told him she had cheated on him in the encounter in the

early morning hours of April 18, 2017. The investigation included interviews of 12 witnesses,

review of Roe’s text messages and emails about the incident, review of video tapes of the common

areas of Roe’s dorm and of an audio recording of the early morning encounter between Roe and

Male Student B. There is no indication that Roe was given an opportunity to ask questions of any

witnesses.

Roe declined the opportunity to review the investigator’s preliminary report and submit

feedback on that report. The final report was issued on July 24, 2017.

Based on the investigator’s recommendations and conclusions, Sermersheim advised Roe

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that she planned to meet with the three-member Advisory Committee on Equity on August 7, 2017

to discuss the investigation. The notice to Roe of the panel hearing indicated it was called to

investigate “possible violation(s) of the University’s Anti-Harassment Policy by [Male Student

B]”. Roe appeared at the meeting.

During the August 7, 2017 meeting with the Advisory Committee on Equity, Roe was

asked why she engaged in a sexual encounter with Male Student B a second time, and Roe

responded that it was her way of gaining control over the person who had previously exerted

control over her. Roe was also questioned about what she was wearing the night of the party, her

drinking habits, why she continued to drink when she had a history of blacking out, and details

about the sexual encounter during the early morning hours of April 18, 2017.

Sermersheim advised Roe that Sermersheim had concerns that Roe made a false statement

and referred Roe to the Office of Student Rights and Responsibilities. Roe was also advised of her

right to appeal Sermersheim’s determination to Vice President for Ethics and Compliance Rollock.

Roe appealed and submitted additional information to Rollock. Rollock found that Male Student

B violated the Anti-Harassment Policy by recording his encounter with Roe but found no other

misconduct by him. Male Student B was directed to write a ten-page paper as punishment for that

violation. Rollock remanded the referral of Roe to the Office of Student Rights and

Responsibilities and requested a finding from Sermersheim as to whether Roe knowingly made a

false statement. Sermersheim found Roe knowingly made false statements in violation of the Anti-

Harassment Policy, and directed that Roe be expelled.

Roe appealed that decision to Rollock. Rollock upheld Sermersheim’s findings but reduced

the sanction to suspension for a two-year period.

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Purdue’s investigators concluded Roe “initiated the conduct and stated on the recording

that she not only enjoyed it but wanted to engage in sexual conduct with [Male Student B] in the

future. Her consent was affirmative and clear, and there would be no reasonable cause for [Male

Student B] to have questioned whether she was consenting to the conduct.” Defs.’ Br. Ex. K. at p.

22 [DE 54-13]. Since Purdue concluded that the sexual encounter in the early morning hours of

April 18, 2017, was consensual, it determined that Roe lied about it. On that basis, Purdue’s

investigators recommended to Sermersheim that Roe “made a knowingly false and malicious

complaint.” Defs.’ Br. Ex. F at p. 49:11-16 [DE 54-8].

Roe acknowledges that Purdue’s decisionmakers issued the sanction because they believed

that she lied about whether a sexual assault occurred.

B. Disputed Facts

It is claimed by Defendants that the sex in the early morning hours of April 18, 2017 was

consensual, and by Roe that it was not, as she was too intoxicated to give consent. Roe asserts that

she does not remember much of what occurred that early morning due to her level of intoxication.

Defendants assert that video of her retrieving her spare key from the dorm hall front office does

not appear to show Roe too intoxicated to walk or find her way to and from the office. They allege

that the dorm hall video shows Roe and Male Student B walking together to get Roe’s dorm room

key, Roe reaching over to touch Male Student B, and the two embracing and kissing.

Roe asserts that she was unaware that her reporting of the encounter was being considered

for disciplinary action against her, and that she was denied the opportunity to fully present her

position on that issue. Defendants assert that Roe failed to avail herself of opportunities to more

fully participate in the process and present additional evidence or argument on her behalf.

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IV. Analysis

Plaintiffs’ Complaint claims that Roe’s federally guaranteed equal access to educational

opportunities was denied by Purdue’s handling of her complaint of assault. Roe also claims her

suspension was made in retaliation for complaining to Purdue about the assault. Roe further claims

that Rollock and Sermersheim, acting in their official capacities, violated her constitutionally

guaranteed right to Equal Protection while acting under color of state law. Finally, Plaintiff asserts

individual liability against Rollock (Count VII) and Sermersheim (Count VIII) for “knowingly or

recklessly implement[ing] and manag[ing] a sexual assault complaint process that deprived the

Plaintiffs of their constitutional rights to due process and equal protection of the law.”

Defendants move for judgment on all of Roe’s claims. They assert that Roe has not come

forward with evidence that Purdue’s application of its False Statement Rule to Roe was gender

discrimination or retaliation for protected activity. Defendants argue that the evidence adduced

during Purdue’s investigation of Roe’s complaint of assault indicated that she “falsely reported a

consensual encounter as an assault” and as a result, Roe’s false statements do not constitute

protected activity under Title IX. Defendants further argue that Purdue did not possess a retaliatory

intent when applying its False Statement Rule to Roe’s statements. It is Defendants’ position that

Roe cannot establish a deprivation of any protected interest in life, liberty, or property, and

therefore cannot establish any Due Process or Equal Protection violations. Finally, Defendants

assert that Roe’s individual §1983 claims also fail based on a lack of Due Process or Equal

Protections violations and qualified immunity.

The crux of Roe’s response is that Defendants did not conduct an independent investigation

into her culpability, but rather made the determination that she lied as part of the investigation into

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her complaint of a sexual assault. Roe contends that the practice of assessing the reporter’s

culpability in the same investigation in which the assault allegations themselves are reviewed

discriminates against women who report assaults. Roe argues that Purdue’s complaint process

violates Title IX, the issue of whether she lied during the investigation into her complaint is a

factual issue, the focus of Purdue’s investigation into Roe’s culpability was discriminatory,

Purdue’s investigation process violated Due Process, and Sermersheim and Rollock are not entitled

to qualified immunity.

A. Title IX

Roe claims that Purdue violated Title IX, 20 U.S.C., § 1681 et seq., both through its

deliberate indifference in investigating and acting on her report of sexual assault and by punishing

her for making the report. In Count II, Roe seeks relief under Title IX only against Purdue

University and not the individual defendants. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 284 (1998) (recognizing that Congress abrogated the “States’ Eleventh Amendment immunity

under Title IX” as to entities receiving federal funds (citing 42 U.S.C. ' 2000d-7)). Defendants

seek summary judgment on Roe’s Title IX claim against Purdue University asserted in Count II,

arguing that Roe has failed to plead plausible facts showing that Roe was disciplined because she

is female. Roe, in Count IV, also asserts Title IX liability for retaliation by Purdue against her for

reporting the assault, Defendants argue that since Purdue’s application of its False Statement Rule

was “fact-based” it is not retaliation, because Roe was not engaged in a protected activity.

i. Deliberate Indifference

Roe claims a violation of Title IX “by Purdue University’s handling of her complaint of

assault” and that “Purdue, through its handling of [her] complaint, was deliberately indifferent to

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the harassment and thus violated Title IX.” Pl. Resp. p. 12 [DE 68]. Deliberate indifference to

harassment constitutes intentional discrimination under Title IX. See, e.g., Jackson v. Birmingham

Bd. of Educ., 544 U.S. 167, 183 (2005) (private right of action lies for teacher-on-student

harassment when funding recipient acts with deliberate indifference); Davis v. Monroe Cty. Bd. of

Educ., 526 U.S. 629, 633 (1999) (finding a private right of action for damages under Title IX exists

for “student-on-student” (peer) harassment where funding recipient acts with deliberate

indifference to known acts of harassment in its programs or activities). A plaintiff claiming Title

IX discrimination based on an institution’s deliberate indifference must establish that the funding

recipient acted with deliberate indifference to known acts of harassment which were so severe,

pervasive, and objectively offensive that they barred victim’s access to educational opportunity.

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650, 119 S. Ct. 1661 (1999); see also Doe v. Bd.

of Educ., 2020 U.S. Dist. LEXIS 51256 (N.D. IL., March 24, 2020) (concluding that when a school

official with authority to correct the issue had knowledge of the sexual abuse but failed to act to

stop abuse it constituted deliberate indifference).

Defendants argue they are entitled to summary judgment on Count II because there is no

recognized private right of action for disparate impact, and therefore Roe must show “facts raising

the inference that Purdue acted at least partly on the basis of sex in [her] particular case.” Doe v.

Purdue Univ., 928 F.3d 652, 669 (7th Cir. 2019). Defendants argue that Purdue’s decisionmakers

did not base their decision to discipline Roe on the fact that Roe was female, but on the fact that

she made false statements. Defendants assert that Roe has acknowledged that Purdue’s

decisionmakers believed she made false statements and that they sanctioned her on that basis, and

that this concession is dispositive. Defendants argue there is no evidence of “selective

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enforcement” of Purdue’s False Statement Rule, that Purdue’s investigative process was

reasonable, and that Roe’s conduct was to blame for any deficiencies in the process.

Roe argues that the deliberate indifference of Purdue’s decisionmakers constitutes

intentional discrimination within the meaning of Title IX. Roe asserts that she was ambushed

because she was advised the panel hearing was called to investigate “possible violation(s) of the

University’s Anti-Harassment Policy by [Male Student B],” but it resulted in disciplinary action

against her. Roe argues that the questioning during the investigative process was unreasonable in

that questions such as what Roe was wearing that evening, why she drank that evening since she

had blacked out previously, and about the sexual acts which took place during that encounter were

asked, in Roe’s opinion, in an aggressive manner. Roe argues such questions would have been

impermissible in a trial and should not have been permitted in this matter. Roe argues that

credibility determinations by the panel made on the basis of such flawed processes violate Title

IX.

A school is considered deliberately indifferent if its actions are clearly unreasonable in

light of the known circumstances. See Doe v. Macomb Cmty. United Sch. Dist. 185, 2020 U.S.

Dist. LEXIS 247132 (C.D. Ill. March 30, 2020). In this case, Roe’s complaint of sexual assault

triggered an investigation, which lead to a report, a panel hearing, a decision by Sermersheim that

Roe had lied and that Male Student B had recorded his and Roe’s interaction without Roe’s

consent, a sentence of writing a paper for Male Student B, and an expulsion (reduced by Rollock

to a suspension) for Roe. Roe was advised that the panel was investigating “possible violation(s)

of the University’s Anti-Harassment Policy by [Male Student B],” Def. Br. Ex. N [DE 54-16], but

Defendants have not provided any evidence Roe was advised that the panel was investigating

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Roe’s conduct. A jury could find that not telling a student that her conduct was being investigated

is unreasonable. In addition, Roe was asked questions about her clothing, her drinking, and details

about the sexual acts which occurred, questions that may have been impermissible if asked in a

criminal trial for sexual assault. See Fed. R. Evid. 412(a)(2). A jury could conclude that the

questions precluded the possibility of a fair, unbiased hearing or were indicative of sexual

stereotyping. Reasonable factfinders could find that the questions were not designed to determine

whether Male Student B engaged in wrongful conduct. In short, a jury could find that asking

questions such as those asked of a possible victim of sexual assault during Roe’s investigation was

unreasonable and objectively offensive. See Doe v. Macomb, supra, at *64 (“whether [the school]

responded in a way that was clearly unreasonable in light of the known circumstances—is for a

jury to decide”). Defendants are not entitled to summary judgment on Count II.

ii. Retaliation

Roe also claims that Purdue suspended her in retaliation for reporting the alleged sexual

assault, in violation of Title IX (Count IV). Purdue argues that Roe’s suspension was based on

Defendants’ determination that Roe made false statements about the nature of the encounter, not

because she reported it.

Title IX “encompasses suits for retaliation, because retaliation falls within the statute’s

prohibition of intentional discrimination on the basis of sex.” Jackson v. Birmingham Bd. of Educ.,

supra, at 178. It prohibits educational institutions from retaliating against people who speak out

against sexual harassment. Id., at 183. To establish a claim for retaliation in violation of Title IX,

a plaintiff must produce enough evidence for a reasonable trier of fact to conclude: (1) she engaged

in a statutorily protected activity; (2) the school took a materially adverse action against her; and

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(3) there existed a but-for causal relationship between the two. Burton v. Bd. of Regents of Univ.

of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017). “[A]n adverse action is one that a reasonable

[student] would find to be materially adverse such that the [student] would be dissuaded from

engaging in the protected activity.” Burton, supra, at 696. (quotation marks omitted) (citing Doe

v. Macomb Cmty. Unit Sch. Dist. 185, 2020 U.S. Dist. LEXIS 247132 (C.D. Ill. March 30, 2020)).

The elements of a Title IX retaliation claim are the same as a claim brought pursuant to the

antiretaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-

3(a). Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017). In Jackson,

supra, the Seventh Circuit Court of Appeals considered a retaliation claim brought by a high school

basketball coach who was removed from his coaching position after reporting sex discrimination

in the school’s athletic program. Jackson, supra, at 171-72. In holding that the coach could bring

a claim against the school board, the Jackson Court noted, “[r]etaliation . . . is a form of

‘discrimination’ because the complainant is being subjected to differential treatment. Moreover,

retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature

of the complaint: an allegation of sex discrimination.” Id. at 173-74. Because “[r]eporting incidents

of discrimination is integral to Title IX enforcement,” in cases “[w]here the retaliation occurs

because the complainant speaks out about sex discrimination, the ‘on the basis of sex’ requirement

is satisfied.” Id. at 179-80.

There is no dispute that Roe’s suspension was a materially adverse action by Defendants.

There also does not seem to be any dispute that Roe’s suspension was causally related to her

complaint of a sexual assault. Where the parties differ is in their assessment of whether Roe’s

report was a protected activity under Title IX. Roe asserts that because she has an incomplete

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memory of the alleged assault and believes herself to have been unable to consent to the

interaction, her report of the events in the early morning hours of April 18, 2017 is protected

activity. Purdue argues that there was no evidence to support her report of assault, and therefore it

is not protected activity. Purdue further asserts that Roe’s acknowledgement that Purdue believed

she was lying is dispositive.

Roe testified in her deposition that she believes herself to have been incapacitated due to

intoxication at the time of the early morning encounter, stating “If I am not able to remember

something and I was not able to fully understand what was going on around me and fully

understand everything because I was not able to make those decisions, that means that I was

incapacitated.” Pl. Resp. Ex. 1, p. 138 [DE 66-1]. Defendant Sermersheim concluded during the

investigation that, although Roe may have been intoxicated, she was not incapacitated, explaining:

“Incapacitated would imply she’s not walking, she’s not communicating to an RA, she’s incapable

of getting a key to unlock her door. She is incapacitated and unable to perform any activity,” Pl.

Resp. Ex. 4, p. 70 [DE 66-4], and that “[i]f a person is incapacitated, they are incoherent, unable

to move, walk. They are, in essence, passed out.” Id. at 74. Purdue’s anti-harassment policy defines

incapacitation as “[a] mental state in which an individual cannot make rational decision because

they lack the capacity to give knowing Consent (e.g., to understand the who, what, where, why

and how of their sexual interaction). Such Incapacitation may be caused by alcohol or other drug

use, sleep or unconsciousness. Intoxication is not equivalent to Incapacitation.” Pl. Resp., p. 18

(citing https://www.purdue.edu/policies/ethics/iiic1.html) [DE 68].

Sermersheim’s definition does not comport with the official Purdue definition of

incapacitation for purposes of its anti-harassment policy. Indeed, her definition requires a much

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lower degree of functioning for the alleged victim to be considered incapacitated and therefore

unable to consent. Roe’s definition is closer to Purdue’s definition. If Sermersheim applied her

definition when making her decision as to Roe’s incapacity, a jury could find that her conclusion

was inconsistent with Purdue’s stated policy. If Roe was held to a different standard than Purdue’s

stated policies described, a jury could determine that the investigative process was unreasonable.

Since a crucial issue in Defendants’ decision making was whether Roe’s report of the assault was

made in good faith, those factual issues should be resolved by a trier of fact.

Since Purdue’s False Statement Rule provides that “a good faith report of discrimination

or harassment that is not later substantiated” is protected activity, whether Roe was acting in good

faith is a crucial factor in determining whether her report is protected activity. Defendants argue

that, even if Roe could show facts that supported her claim her statements were made in good faith,

she must still prove retaliatory intent to establish a claim for Title IX retaliation. However, that

does not take into account that, if Sermersheim applied the wrong standard to reports in which

incapacity was an issue, the process itself may have been fundamentally flawed. In that situation,

a jury could find the flaws in the process equate to deliberate indifference and punishing reporters

for those reports would be an intentional response. See Davis v. Monroe Cty. Bd. of Ed., 526 U.S.

629, 648-49 (1999); Jackson, supra, at 173-74 (“Retaliation . . . is a form of ‘discrimination’

because the complainant is being subjected to differential treatment. Moreover, retaliation is

discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the

complaint: an allegation of sex discrimination.”).

Considering the factual disputes as to what standard Sermersheim held Roe to and whether

Roe acted in good faith, this Court is unable to conclude that the investigatory process was not

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unreasonable, and summary judgment on Roe’s retaliation claim is inappropriate, as whether Roe’s

report was protected activity is crucial to a cause of action for Title IX retaliation.

B. Equal Protection and Due Process Claims

The Fourteenth Amendment contains what are commonly referred to as the Equal

Protection Clause and the Due Process Clause. The Equal Protection Clause states: “No State shall

make or enforce any law which shall . . .deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. Amend. XIV, § 1. The Due Process Clause provides: “No

State shall . . . deprive any person of life, liberty, or property without due process of law.” U.S.

Const. Amend. XIV, § 1. 42 U.S.C. § 1983 serves as a procedural vehicle for lawsuits vindicating

federal rights elsewhere conferred. To succeed on a § 1983 claim, a plaintiff must show that she

was deprived of a right secured by the Constitution or federal law, by a person acting under color

of law. Under 42 U.S.C. § 1983, an individual may bring a claim against a person acting under the

color of state law for a violation of the Due Process Clause or the Equal Protection Clause. Colbert

v. City of Chicago, 851 F.3d 649, 656 (7th Cir. 2017); Fitzgerald v. Barnstable Sch Comm., 555

U.S. 246, 254 (2009). Roe’s § 1983 claims against Purdue have been dismissed. Defendants seek

summary judgment on the § 1983 claims against the individual defendants in their official

capacities (Count VI) based on Eleventh Amendment immunity and against the individual

Defendants in their individual capacity (Rollock (Count VII), and Sermersheim (Count VIII))

based on a lack of equal protection or due process offense, and qualified immunity. The Court

considers each argument in turn.

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i. Claims against individuals in their official capacities

Roe’s Count VI asserts a § 1983 claim against individual defendants Sermersheim and

Rollock in their official capacities. She alleges that the decision to suspend her violated both her

Equal Protection and Due Process rights. She seeks injunctive relief to be reinstated to Purdue and

the removal of the disciplinary action from her record. Defendants move for summary judgment

on the official capacity count and argue that Roe’s claim is flawed because (a) Roe lacks standing

for an order for reinstatement; (b) Roe has not raised any factual issue relative to reinstatement or

expungement; (c) Roe was not deprived of any protected interest; and (d) there no evidence of

current or prospective harm attributable to an unequal protection of law. To succeed on her claim,

Roe must establish that the actions of Defendants deprived her of a protected interest without due

process or that she is suffering or will suffer harm as a result of unequal treatment by the

Defendants.

a) Standing for Reinstatement

Defendants assert that Roe lacks standing to seek reinstatement since her suspension has

expired, she alleges no obstacle to re-enrollment, and she has not alleged an intention to return to

Purdue. Roe failed to respond to this argument, and hence it is waived. See M.G. Skinner & Assocs.

Ins. Agency v. Norman-Spencer Agency, Inc., 845 F.3d 313, 321 (7th Cir. 2017) (“Perfunctory and

undeveloped arguments are waived, as are arguments unsupported by legal authority.”). Since the

two-year suspension period has expired, the issue of whether Roe was entitled to re-enroll during

that period is moot.

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b) Factual Issue on Reinstatement or Expungement.

Defendants also argue that because Roe did not seek, and does not wish to seek,

reenrollment, there is no factual issue regarding reinstatement or expungement. Roe argues that

since the disciplinary action has not been expunged from her student record, she is obligated to

disclose it to any institutions of higher learning to which she may apply, and that would have a

negative impact on her ability to enroll at other schools. Defendants did not respond to the

argument that the continuing existence of a disciplinary action on Roe’s record creates an

obligation on her part to disclose it, instead focusing on the fact she did not allege she wished to

enroll at Purdue. Defendants did not thoroughly develop this argument, and Roe provided

unrebutted evidence that her admissions applications were rejected by two other schools as a result

of the disciplinary action on her record, so summary judgment is inappropriate.

c) Deprivation of Protected Interest

Defendants also argue that Roe did not suffer any loss of any protected life, liberty, or

property interest, since she had no guaranteed interest in a Purdue education. Roe responds that,

in addition to the procedural due process violations of a lack an opportunity to cross-examine, to

be fully heard, and notice of what was at stake, she was deprived of the property interest in the

sums she paid for tuition for the semester in which she was suspended. Roe also asserts that she

has incurred additional expenses as a result of enrolling at a different university.

A tuition payment is not a property interest for which no other remedy is available, Doe v.

Purdue Univ., 928 F.3d 652, 662-63 (7th Cir. 2019) (holding that breach of contract causes of

action are available for losses attributable to claims for tuition paid for an incomplete semester),

and Roe has an available state court cause of action for breach of contract, but Roe has also alleged

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other losses, including fees and expenses associated with other institutions. There has been no

developed argument that the other damages Roe has suffered are not a protected interest, and due

to the factual disputes regarding the procedural posture of Roe’s investigation as set forth above,

a jury could find that the individual Defendants acting in their official capacities deprived Roe of

due process, and that deprivation caused her losses. Summary judgment in favor of Defendants

would therefore be inappropriate.

d) Harm Attributable to Unequal Protection

Defendants’ final basis for summary judgment on Count VI is that Roe presented no

evidence of current or prospective harm caused by any equal protection violation. Roe responds

that the unfairness of the process inherently violated her rights on the basis of her sex as protected

by the Equal Protection Clause. She also asserts that she has been denied admission to other

institutions, and that issue can continue to arise. Again, given the factual disputes as to the

investigatory process, and their implication of Title IX, summary judgment will not be granted on

Count VI.

Because there are unanswered questions of fact for a jury about the process by which Roe

was disciplined and the role of the individual defendants in the investigation and discipline,

summary judgment on her § 1983 claims against the individual defendants in their official

capacities is inappropriate.

ii. Claims against individuals

Defendants move for summary judgment on the individual capacity claims on the basis

that the only due process claim recognized by the Seventh Circuit Court of Appeals in a university

student discipline context is a “‘stigma-plus’ deprivation of ‘occupational liberty.’” See Doe v.

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Purdue Univ., 928 F.3d 652, 662-63 (7th Cir. 2019). Stigma-plus deprivations of occupational

liberty entail both the stigma of negative information as well as dissemination of that information.

Id. Defendants argue there is no factual question that Roe is suffering any current deprivation of

life, liberty, or property, so Roe was not entitled to any process she was denied, and they are

therefore entitled to summary judgment. Roe argues that “[w]hen a right is protected by the Due

Process Clause, a state may not withdraw it on grounds of misconduct absent fundamentally fair

procedures to determine whether the misconduct has occurred.” Id. at 663. Roe further argues that

the more severe the discipline, the more procedural safeguards should be in place, and that

procedural defects in Purdue’s process taint the decision to suspend her. Roe asserts that she will

be obligated to self-report this sanction to other institutions of higher education, including law

schools, and by implication, bar admission authorities, meaning her stigma of a sanction will

continue to be disseminated.

As in Doe v. Purdue Univ., supra, in which the plaintiff was required to authorize Purdue

to release information about a sanction to his ROTC program and the Court of Appeals found that

even with his permission to disclose, the disclosure satisfied the stigma-plus standard, the

disclosure of Roe’s sanction may impact her future education and employment opportunities. Roe

may be the person who either has to self-report this sanction, or authorize its report by Purdue, but

she has alleged that report it she must, and Defendants do not dispute that. Instead, they argue that

because Roe had no protected right to a Purdue education, the suspension (rather than an expulsion)

does not constitute a deprivation of any protected interest. A jury could find that Roe has sustained

a loss of a liberty interest in a stigma-plus claim as a result of a flawed investigatory process. See,

e.g., Dupuy v. Samuels, 397 F.3d 493 (7th Cir. 2015) (noting that the plaintiffs legally obligated to

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allow state to disclose finding they were child abusers); Mann v. Vogel, 707 F.3d 872 (7th Cir.

2013) (holding that the state deprived plaintiffs of liberty interest when state adjudicated they

violated child safety laws and could no longer operate day care center); Doyle v. Camelot Care

Ctrs., 305 F.3d 603 (7th Cir. 2002) (concluding that the state deprived plaintiffs of an occupational

interest when reported finding of child neglect to employers).

Summary judgment on Roe’s claims for deprivation of due process is not appropriate

because a jury could find Purdue’s flawed investigatory process resulted in a loss of a liberty

interest to Roe in a stigma-plus context, even if Roe is the one who may be legally obligated to

report the stigma. Roe has asserted that the decision by Purdue, which she asserts was based on a

flawed process, has resulted in a loss of future educational and employment opportunities, and a

factfinder could agree.

V. Conclusion

For the foregoing reasons, the Court hereby DENIES Defendants’ Motion for Summary

Judgment as to Plaintiff Nancy Roe [DE 53]. The Court hereby DENIES as moot Defendants’

MOTION for Hearing re [53] MOTION for Summary Judgment as to Nancy Roe, [58] MOTION

for Summary Judgment as to Mary Doe (Motion for Oral Argument on Defendants' Motion for

Summary Judgment) [DE 67]. The Court SETS this matter for a status conference on February

10, 2022 at 12:30 p.m. (Central Time). Parties are instructed to dial 877-873-8017 and enter

access code 5155509# when prompted.

SO ORDERED this 13th day of January, 2022.

s/ John E. Martin

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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