# Jane Doe v. Univ. of Ky.

> Court of Appeals for the Sixth Circuit · August 7, 2024 · 111 F.4th 705

URL: https://www.frixlaw.com/law-library/cases/10500502

## Case

- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 7, 2024
- **Citations:** 111 F.4th 705
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10500502

## How later opinions describe it (automated extraction)

- declining to extend Nassar to retaliation claims under Title IX

## Opinion text

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0167p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
JANE DOE,
│
Plaintiff-Appellant, │
> No. 22-6012
│
v. │
│
UNIVERSITY OF KENTUCKY, │
Defendant-Appellee. │
┘

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:15-cv-00296—Gregory F. Van Tatenhove, District Judge.

Argued: October 19, 2023

Decided and Filed: August 7, 2024

Before: BATCHELDER, GRIFFIN, and BLOOMEKATZ, Circuit Judges.
_________________

COUNSEL

ARGUED: Linda M. Correia, CORREIA & PUTH, Washington, D.C., for Appellant. Bryan H.
Beauman, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, for
Appellee. ON BRIEF: Linda M. Correia, Andrew Adelman, CORREIA & PUTH, Washington,
D.C., for Appellant. Bryan H. Beauman, STURGILL, TURNER, BARKER & MOLONEY,
PLLC, Lexington, Kentucky, William E. Thro, UNIVERSITY OF KENTUCKY, Lexington,
Kentucky, for Appellee. Jim Davy, ALL RISE TRIAL & APPELLATE, Philadelphia,
Pennsylvania, Sean Ouellette, PUBLIC JUSTICE, Washington, D.C., for Amici Curiae.
BLOOMEKATZ, J., delivered the opinion of the court in which GRIFFIN, J., joined.
BATCHELDER, J. (pp. 26–56), delivered a separate dissenting opinion.
No. 22-6012 Doe v. Univ. of Ky. Page 2

_________________

OPINION
_________________

BLOOMEKATZ, Circuit Judge. The University of Kentucky held not one, not two, not
three, but four student conduct hearings after Jane Doe reported that a student raped her in her
dorm room on campus. Each of the first three resulted in expulsions or long-term suspensions for
the accused, but the University’s appeals board overturned each determination for procedural
deficiencies. After the third reversal, Doe filed a Title IX lawsuit against the University for its
actions in response to the rape. Then, in the fourth hearing—nearly two-and-a-half years after
Doe first reported the rape—the hearing panel flipped and ruled against her. Doe now claims
that the University mishandled her fourth hearing in retaliation for her lawsuit. The University
moved for summary judgment and the district court granted the motion, concluding that Doe
could not state a prima facie case of retaliation under Title IX. Because the district court’s
decision rests on several legal errors and the record shows that a reasonable juror could find Doe
established a prima facie case, we reverse and remand.

BACKGROUND1

Jane Doe was a student in a dual enrollment program between Bluegrass Community and
Technical College and the University of Kentucky. That program allowed Doe to take classes at
the community college and transfer those credits toward a bachelor’s degree at the University.
While taking classes as part of this program, Doe lived in a University dormitory.

Doe alleges that John Doe (JD) raped her in her dorm room on October 2, 2014. At the
time, JD was a student at the University and a member of its football team. Doe previously dated
JD and ended the relationship the month prior to the alleged rape. Within hours of the alleged
rape, Doe reported it to her roommate, her mother, and the University police. Officer Laura

1Because we are reviewing a grant of summary judgment in favor of the University, we recite the facts in
the light most favorable to Doe, the non-moving party. Palma v. Johns, 27 F.4th 419, 423 (6th Cir. 2022).
No. 22-6012 Doe v. Univ. of Ky. Page 3

Sizemore responded to the call and escorted Doe to the University’s hospital, where Doe
underwent a sexual assault examination.2

Officer Sizemore and Detective Vaun Brannock investigated the incident and concluded
that JD raped Doe. They memorialized their findings in a police report. Given the result of the
officers’ investigation, the University issued JD an interim suspension and ordered him not to
contact Doe.

First Hearing. Following its Title IX policy, the University scheduled a student conduct
hearing on the matter. The hearing occurred within a week of the reported rape and was
adjudicated by a panel composed of faculty members. JD could not attend and submitted a
written statement instead.

The day after the hearing, the panel issued a decision finding that JD raped Doe and
permanently expelled him. JD, represented by counsel, appealed the decision and prevailed.
The appeals board found that the panel erred by conducting the hearing without JD present, so
the decision could not stand, and the hearing had to be redone.

Second Hearing. The University held a second hearing two weeks after the reversal.
Doe did not attend the second hearing, explaining that she did not want to risk being
retraumatized. Instead, the University used her recorded statements from the first hearing in
addition to her police report. A few days later, the second panel found JD responsible and, like
the first, expelled him from the University.

JD then appealed the second hearing panel’s decision and the appeals board again
reversed. It ruled that the second panel committed two fatal procedural errors: First, the panel
should not have allowed Doe’s recorded statement from the first hearing because, in its view, the
statement was irrevocably tainted. Given JD’s absence from the first hearing, the appeals board
ruled that the recorded “testimony from that date [was] not admissible, barring extraordinary
circumstances.” In re JD Letter, R. 140-30, PageID 2161. Second, Doe and her roommate’s
absence from the hearing denied JD the ability to cross-examine witnesses.

2The exam detailed Doe’s account of the alleged rape. The examiner observed lacerations on Doe’s
shoulder and back.
No. 22-6012 Doe v. Univ. of Ky. Page 4

Third Hearing. The University held a third hearing on March 26, 2015—six months after
the alleged incident occurred. Doe participated telephonically from another location on campus.
The third hearing panel issued a report finding JD responsible and suspended him for five years.

Once again JD appealed, and once again the appeals board found that the panel
committed procedural errors that warranted reversal. This time, the panel erred in allowing
Officer Sizemore and Detective Brannock to testify in each other’s presence, which violated the
University’s rule that witnesses be excluded from the hearing except for the period of their
testimony.

Fourth Hearing. In June 2015, the University asked for Doe’s availability for a fourth
hearing that would take place the next month. A series of back-and-forth scheduling
communications followed. At first, Doe requested an August date. Around the same time, JD
dropped out of the University. Because Doe planned to reenroll in the fall, she asked the
University to suspend the proceedings until then. The University refused, but it also did not
schedule a hearing. By August, Doe had hired a new attorney who informed the University that
Doe would provide her availability for a fourth hearing once she decided whether she would
participate. Doe’s lawyer further asked the University to keep her updated on JD’s availability.
Both parties claim to have been waiting for a response from the other, and neither followed up
about scheduling the hearing. Meanwhile, Doe enrolled in a different college unrelated to the
University of Kentucky.

On October 1, 2015, Doe filed a complaint in federal court against the University for
deliberate indifference to sex discrimination, in violation of Title IX. Because of this lawsuit, the
University paused all proceedings (though it had yet to schedule the fourth hearing). It claims
that it believed Doe’s complaint sought to enjoin the proceedings, even though the complaint
only requested “[i]njunctive relief to be determined at trial requiring UK to comply with federal
law under Title IX.” Compl., R.1, PageID 11. Several months later, in her opposition to the
University’s motion to dismiss, which she filed on January 27, 2016, Doe faulted the University
for failing to schedule a hearing. The next day, the University emailed Doe and her counsel
seeking to schedule the fourth hearing. Doe’s counsel responded that she was coordinating with
No. 22-6012 Doe v. Univ. of Ky. Page 5

Doe and Doe’s mental health provider, and she again stated that the University should let her
know when JD provided dates. The University did not follow up.

Nearly eight months after this exchange, the district court issued an order denying the
University’s motion to dismiss and criticizing it for failing to schedule a fourth hearing. As a
result, the University sent a letter to Doe and JD about scheduling a hearing between September
15, 2016, and October 15, 2016. JD requested a late October hearing and the University agreed.

Doe alleges that the Title IX coordinator was required to hold pre-hearing meetings with
both Doe and JD. The pre-hearing meeting is an opportunity for the involved parties to discuss
the hearing process, receive input, and attempt to resolve the matter without conducting a
hearing. But the University failed to perform the meeting leading up to the fourth hearing
despite having done so before each of the prior hearings. The University says that it did not hold
a prehearing meeting because it was unlikely that the parties would resolve the issue given the
result of the three prior hearings.

On the morning of the hearing, the University canceled last-minute. Professor Robert G.
Lawson, the hearing officer, said the hearing could not go forward that day because JD’s
attorney raised due process concerns about the composition of the hearing panel, although he did
not say what the concerns were. Doe and the University corresponded about several potential
dates in November and December for a hearing. Finally, in late December, the University
rescheduled the fourth hearing for early January 2017.

At the hearing, the University was responsible for presenting the case against JD.
University 30(b)(6) Depo., R. 140-5, PageID 2019 (admitting that the University’s role was to
“present the best case to prove that the [University] policy had been violated”). Because Doe
was diagnosed with post-traumatic stress disorder after the alleged assault and was hospitalized
for this condition after the third hearing, she requested that she not be required to again recount
her rape to the panel. The University arranged for Doe’s recorded direct testimony from the
third hearing to play for the panel and for Doe to be available for live cross-examination
remotely from her attorney’s office. The University told Doe and her counsel that they were
allowed to object during the hearing. Prior to the hearing, Doe was provided a list of witnesses
No. 22-6012 Doe v. Univ. of Ky. Page 6

that would testify on her behalf, including Officer Sizemore. Doe had specifically requested
Officer Sizemore’s presence.

On January 10, 2017, the University held the fourth hearing. On the morning of the
hearing, Doe was informed that Officer Sizemore was not available to attend the hearing because
she was on FMLA leave, so her testimony would be conveyed only via the police report. That
concerned Doe because Officer Sizemore could have testified to matters beyond the police
report, including that Doe’s statements to police were consistent and that her behavior after the
assault was consistent with having been raped. Furthermore, the hearing panel permitted JD to
use Doe’s recorded statements from the first hearing to impeach her despite the appeals board
having previously ruled that the statements from the first hearing were inadmissible in any later
proceeding. The University representative did not object to the use of the recorded statements—
indeed, he did not make any objections throughout the hearing. Over Doe’s objections, the
University representative allowed JD to ask questions about her federal lawsuit to “explore her
motivations.” Fourth Appeal Report, 140-40, PageID 2223. Professor Lawson, responsible for
screening and asking the cross-examination questions JD submitted, asked whether Doe had
“filed a federal court lawsuit against the University of Kentucky for monetary damages related to
[her] claim of having been assaulted by [JD] while living on UK campus” and whether she was
“concerned that if [JD was] not found responsible,” that result “could have a negative effect” on
her lawsuit. Hearing Tr., R. 140-48, PageID 2502.

Nine days later, as the panel deliberated, Doe’s counsel received two messages from an
anonymous source alleging that the University of Kentucky Police Chief, Joseph Monroe,
obstructed Officer Sizemore from testifying at the fourth hearing. The source stated that Chief
Monroe kept Officer Sizemore from testifying by suggesting that she had to go home for
childcare duties. The anonymous source alleged that the hearing administrators were told that
Officer Sizemore was on family medical leave when she wasn’t. Moreover, Officer Sizemore
might have testified if not approached by Chief Monroe. Doe’s counsel described, but did not
share, the messages in an email to a Title IX coordinator at the University, who notified other
University administrators but not the hearing panel. The coordinator also called Officer
Sizemore to confirm the police department’s stated reason for her absence by asking her if she
No. 22-6012 Doe v. Univ. of Ky. Page 7

was indeed at home providing childcare on the day of the hearing. The coordinator then asked
Officer Sizemore whether anyone told her not to attend the hearing. Officer Sizemore,
interpreting the question to be about threats, said no. The coordinator did not inquire whether
Chief Monroe told her about the hearing or ask if she could have been available to testify as
requested. The coordinator did not mention the allegations about Chief Monroe or even allude to
the existence of the anonymous messages.

Unbeknownst to Doe at the time, Officer Sizemore would have made accommodations to
testify, but she wasn’t asked to attend. As discovery revealed, the University had waited until
the Friday before the Tuesday hearing to request Officer Sizemore’s attendance from the
University police department. Chief Monroe in turn did not approach Officer Sizemore until the
day before the hearing. And, according to Officer Sizemore, Chief Monroe never told her about
Doe’s hearing and the University’s request to have her testify. Instead, Chief Monroe vaguely
asked her to confirm generally that she did not have childcare and would therefore be
unavailable the next day. Sizemore Depo., R. 140-1, PageID 1987 (explaining that Chief
Monroe told Sizemore that her “childcare issues” was “all [he] needed to know” so she “couldn’t
be somewhere if [she] needed to be”).

Officer Sizemore only realized that Doe’s hearing was happening the next day because
Officer Eric Scott mentioned to her that Chief Monroe told him he “needed to attend” the
hearing. Sizemore Mem., R. 140-25, PageID 2131. Officer Scott, whom JD called to testify on
his behalf, served as the police liaison for, and traveled with, the football team. Officer Scott
planned to testify that JD called him after the rape allegation, denied doing it, and asked Scott for
advice. While Officer Scott was initially unable to testify “due to other commitments,” Chief
Monroe made arrangements so that Officer Scott could attend. Monroe Email, R. 131-33,
PageID 1900.

Officer Sizemore stated she was confused as to why Officer Scott—who had no
investigative role in the alleged rape—was going to attend, but her attendance was not required
even though she was the lead investigator on the case. If she had received proper notice of the
hearing, she could have made accommodations to attend. Feeling misled, Officer Sizemore sent
a memo to her police captain memorializing the prior conversation with Chief Monroe. She also
No. 22-6012 Doe v. Univ. of Ky. Page 8

told Detective Brannock that she felt lied to and deceived about her ability to testify. While
Officer Sizemore testified that the police report included all the relevant facts, she also stated that
it did not include her perspective of whether Doe was a credible witness, and further, she could
have offered her opinion on whether certain pieces of evidence were relevant to whether Doe had
been raped.

Meanwhile, the fourth hearing panel issued its decision, finding that JD was not
responsible for the alleged misconduct. The hearing panel based its decision on Doe’s credibility
versus JD’s. The panel gave seven reasons why it found JD’s story more plausible and Doe not
credible. First, it noted that Doe testified that on the day of the attack, she retrieved JD from the
lobby of her building when security footage showed him waiting in front of the building’s
exterior—that is, just outside the lobby. Second, it said Doe’s claim that she did not witness JD
take his clothes off in her dorm room was doubtful because, even though Doe testified that she
was focused on her computer and finishing a paper, pictures of the dorm room showed that it was
too small for her not to notice him removing his clothes. Third, Doe escorted JD out of the
building in a different outfit than the one she wore when she entered with JD; but in testimony,
Doe stated that JD removed her pants and made no mention of her shirt. The panel inferred from
the lack of testimony regarding a shirt that Doe had changed her shirt and that it was not
consistent with rape to change in front of an attacker. Fourth, video evidence showed that Doe
talked to the respondent for some time after signing him out of the dorm. This conduct struck the
panel as inconsistent with an allegation that rape had occurred. Fifth, Doe corresponded with JD
after the alleged rape via text. One text from Doe read, “I wish you the best.”3 Fourth Panel
Report, R. 140-34, PageID 2182. Sixth, the photos taken at the hospital did not clearly show
biting, restraining, or force used against her. Finally, Doe stated that she did not know JD had a
girlfriend, but in recorded testimony from the first hearing, Doe stated she did not want to be a
second girlfriend. For unexplained reasons, the panel did not include Officer Sizemore’s police
report in the list of evidence it considered in coming to its conclusion (though the report had
been read at the hearing); it only included the police report JD presented (and the University

3We note that many text messages in front of the hearing panel also show that Doe evinced resentment
toward JD. For example, she told him twice to “delete [her] number and don’t call [her].” Hearing Evidence, R.
131-1, PageID 1579.
No. 22-6012 Doe v. Univ. of Ky. Page 9

stipulated to), which was from Officer Scott. Nor did the panel explain why it disagreed with the
investigators’ conclusion that, based on their experience with campus rape, experience with
sexual assault, and review of all the evidence following the allegation, JD raped Doe. The panel
also did not directly answer whether sexual activity occurred and whether it was consensual.

Doe appealed the hearing panel’s decision. Doe argued that the panel allowed irrelevant
questions attacking her for bringing a Title IX lawsuit, that Officer Sizemore should have been
called as a witness, that JD was able to ask witnesses leading questions, that a witness on behalf
of JD (Officer Scott) was allowed to submit written testimony without cross-examination, and
that the panel failed to decide whether nonconsensual sex had occurred. She also noted the
anonymous messages suggested there may have been interference with Officer Sizemore’s
testimony.

The University responded to Doe’s appeal. Like Doe, it criticized the panel for not
determining whether the alleged sexual assault had occurred and for concluding that Doe was not
credible based on extrinsic evidence unrelated to the assault. But the University also took
several positions adverse to Doe. It claimed that several of Doe’s arguments were “without
merit” and asked the appeals board to reject them. University Resp. to Appeal, R. 140-39,
PageID 2205. For instance, it disagreed that Officer Sizemore’s absence warranted a new
hearing. Deflecting responsibility, the University claimed that it only learned of Officer
Sizemore’s absence hours before the hearing, and though it could have canceled the hearing the
morning of—as it had done for JD in the past—it viewed Officer Sizemore’s testimony as “not
instrumental” and stated that a continuance would have further traumatized Doe. University
Resp. to Appeal, R. 140-39, PageID 2207–08. Furthermore, the University told the appeals
board that Officer Sizemore was not an “official witness,” as she had only served as a witness in
one prior hearing (and all three resulted in finding against JD), and, in any event, it entered
Officer Sizemore’s police report into the record. Id. at PageID 2207. The University also argued
that Doe could have fully participated by objecting to Officer Sizemore’s absence and blamed
Doe for the “strategic decision” not to. Id. at PageID 2209. Doe only participated remotely in
the hearing for the limited portion of her own testimony, so she was unaware that no University
police officer involved in the investigation would be present for the hearing until after the panel
No. 22-6012 Doe v. Univ. of Ky. Page 10

issued its decision. On Officer Scott’s report, the University argued that it stipulated to its entry
into the record because the testimony was “inconsequential and non-substantive.” Id. at PageID
2210. As for the anonymous messages about Chief Monroe, the University stated that Doe’s
counsel refused to turn them over to allow an investigation, so the messages did not merit a new
hearing. And it told the appeals board that there was no credible evidence that any University
official interfered.

While Doe’s appeal was pending before the appeals board, the Title IX Coordinator
personally received an anonymous message claiming that Chief Monroe interfered with Officer
Sizemore’s appearance at the hearing. The coordinator told other administrators, including the
University’s general counsel, about the message but made no effort to contact Officer Sizemore
for more information. The University’s general counsel only asked Chief Monroe to create a
timeline of his version of events. Nor did the University inform Doe or the appeals board about
the message; instead it left unchanged its prior contention to the board—that there was no
credible evidence of obstruction.

On April 8, 2017, the appeals board denied Doe’s appeal. According to the appeals
board’s report, the fourth panel did indeed decide that JD did not rape Doe. It also found that the
hearing officer had reason to allow Doe to be asked questions about her lawsuit. It concluded
that Officer Sizemore’s absence, JD’s leading questions, and the stipulation to Officer Scott’s
out-of-hearing testimony comported with due process and would not have changed the result of
the panel. It further found that the panel’s decision was not clearly erroneous because the panel
was “knowledgeable about sexual misconduct”; reviewed the evidence; and found JD’s story to
be credible, while Doe was less credible. Fourth Appeal Report, R. 140-40, PageID 2234. It also
emphasized that Doe failed to request a continuance or object at the hearing to Officer
Sizemore’s absence. As for the allegations of interference with Officer Sizemore’s testimony, it
wrote that Doe “refuse[d] to provide evidence” and that it would not overturn the decision based
on her “unsubstantiated report of corruption.” Id. at PageID 2232.

In November 2017, Doe amended her complaint against the University to add a
retaliation claim for complaining of sex discrimination under Title IX. She asserted, among
other things, that the University interfered with the disciplinary process to harm Doe’s case,
No. 22-6012 Doe v. Univ. of Ky. Page 11

asked her about her federal lawsuit in the fourth hearing, and found JD not responsible for rape.
She then voluntarily dismissed her only other claim, which was for deliberate indifference under
Title IX. The University moved for summary judgment on the retaliation claim. The district
court granted the motion, concluding that Doe did not make a prima facie showing that the
University had retaliated against her under Title IX. Doe timely appealed.

ANALYSIS

I. Standard of Review

We review a grant of summary judgment de novo. Jackson v. City of Cleveland, 925
F.3d 793, 806 (6th Cir. 2019). Summary judgment is appropriate when there is no genuine
dispute of material fact and the movant—here, the University—proves that it “is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). If a reasonable jury could find for Doe, a genuine dispute of material fact exists, and
summary judgment is not appropriate. Peffer v. Stephens, 880 F.3d 256, 262 (6th Cir. 2018)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). At this stage, we construe
the evidence and draw all reasonable inferences in favor of Doe. Burgess v. Fischer, 735 F.3d
462, 471 (6th Cir. 2013) (citing Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir.
2008)).

II. Title IX Retaliation Claim

Before evaluating Doe’s retaliation claim, we correct an error in the district court’s view
of the record that infected its decision. In reviewing the summary judgment record, the district
court constrained its analysis to the specific allegations detailed in the operative complaint, rather
than to the full scope of record evidence Doe presented in opposition to summary judgment. It
critiqued Doe for describing additional examples of the University’s retaliatory actions beyond
what she included in her complaint. Because it construed these additional examples of the
University’s retaliation as an improper attempt to “cure the inadequacies” of the complaint, the
district court did not consider this evidence and declared that it would narrow its “attention to the
facts most pertinent to the claims alleged in the complaint.” Op. and Mem., R. 151, PageID
2538. On appeal, Doe argues this was wrong. We agree.
No. 22-6012 Doe v. Univ. of Ky. Page 12

When analyzing a motion for summary judgment, the district court should not limit itself
to the allegations contained in a plaintiff’s complaint. Phillips v. Cohen, 3 F. App’x 212, 220
(6th Cir. 2001). Summary judgment motions follow discovery, and our standard “expressly
contemplates” that the non-moving party “may put forward evidence not contained in the
pleadings in order to rebut a summary judgment motion.” Id. (citing Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1476 (6th Cir. 1989)). The plain text of Federal Rule of Civil Procedure
56(c) itself mandates that a court should consider the plethora of material available in the record
to determine whether the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). That includes: pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact. See id. Certainly, the factual
allegations in the complaint must put a defendant on notice of the claims the plaintiff is likely to
bring. See Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). But there is no
notice-pleading deficiency here. And Doe could oppose summary judgment by pointing to even
more evidence of the University’s retaliatory practices that were revealed in discovery than what
she alleged in her complaint. The district court’s failure to fully consider this evidence was a
categorical error, and we now look at all the facts in the record to analyze Doe’s retaliation
claim.

Title IX provides that “[n]o person . . . 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.” 20 U.S.C. § 1681(a). Title IX also
protects individuals who pursue their claims under Title IX from retaliation. See Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 173–74 (2005) (“Retaliation is, by definition, an
intentional act. It is a form of ‘discrimination’ because the complainant is being subjected to
differential treatment.”). We generally evaluate Title IX retaliation claims analogously to Title
VII retaliation claims. Goldblum v. Univ. of Cincinnati, 62 F.4th 244, 251 (6th Cir. 2023); Fuhr
v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013), abrogated on other grounds, Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). So, for Title IX retaliation claims based on
circumstantial evidence, we apply the McDonnell Douglas burden-shifting framework. See
Fuhr, 710 F.3d at 674.
No. 22-6012 Doe v. Univ. of Ky. Page 13

Under this framework, Doe must establish a prima facie case of retaliation by showing
that (1) she engaged in “protected activity,” (2) the University “knew of the protected activity,”
(3) she suffered an “adverse school-related action,” and (4) a “causal connection exists” between
the cited protected activity and the alleged adverse action. Bose v. Bea, 947 F.3d 983, 988 (6th
Cir. 2020); see also Gordon v. Traverse City Area Pub. Schs., 686 F. App’x 315, 320 (6th Cir.
2017). This burden is “easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.
2000). If Doe succeeds on the prima facia case, it becomes the University’s burden to articulate
a “legitimate, nondiscriminatory reason for its action.” Gordon, 686 F. App’x at 320. If the
University is successful, the burden shifts back to Doe to undermine its proffered reason as
pretextual. Id.

Doe claims that the University intentionally mishandled and unfairly adjudicated her
fourth hearing to retaliate against her for bringing her Title IX lawsuit. The University does not
contest that Doe’s claim meets the first two prongs of the prima facie case. Doe’s lawsuit is a
protected activity (prong one),4 and the University was aware of the lawsuit at the time it was
filed (prong two). The parties dispute that there’s a material question of fact as to whether Doe
suffered an adverse school-related action (prong three) and whether a causal connection exists
between that action and her lawsuit (prong four). We focus on those disputes.

A. Adverse School-Related Action

To determine whether a challenged retaliatory action is “adverse” for Title IX purposes,
we ask whether the action would dissuade a reasonable person from engaging in the protected
activity. Id. The Supreme Court articulated this standard for Title VII cases in Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006), and we have likewise
applied it in the Title IX context, with the caveat that the adverse action must be “school-
related.” See, e.g., Gordon, 686 F. App’x at 320. Doe can meet her burden by showing that the
University’s actions either individually or in combination would dissuade a reasonable person

4Doe also argues that she engaged in an additional protected action: persevering through the University’s
lengthy Title IX proceedings. The University does not contest that this conduct constitutes a protected activity. But
because Doe’s arguments on appeal seem to focus on retaliation following the filing of her federal lawsuit, we also
focus our analysis on that alleged protected activity.
No. 22-6012 Doe v. Univ. of Ky. Page 14

from pursuing the discrimination claim. Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 569–
70 (6th Cir. 2019). Since Burlington Northern, our court has recognized that this standard “is
not onerous.” Henry v. Abbott Lab’ys, 651 F. App’x 494, 504 (6th Cir. 2016) (citing cases).

Before it even sifted through the factual record, the district court held that “none of the
retaliatory items cited in the Complaint” could be considered “school-related actions” because
Doe was no longer a student at the community college (in the dual enrollment program with the
University) during the alleged retaliatory actions related to the fourth hearing. Op. and Mem.,
R. 151, PageID 2540. Reviewing the timeline, the court calculated that the fourth hearing
occurred more than two years after Doe had last resided at the University or had “participated in
any school-related functions” and concluded “[o]n this basis alone, Doe’s claim fails.” Id. On
appeal, the University reiterates this reasoning and further contends that regardless of Doe’s
enrollment status, the student conduct hearings she participated in are not educational programs
or activities. Both the district court’s holding and the University’s arguments are wrong as a
matter of law.5

Consider first the district court’s conclusion that Doe had to be a “student” at the
University at the time of the retaliation. That conclusion defies the statute’s text. Title IX
protects any “person” from being excluded from or denied the benefits of an educational
program because of sex. 20 U.S.C. § 1681. The statute says “person”—not student. And, as the
Supreme Court explained, “Congress easily could have substituted ‘student’ or ‘beneficiary’ for
the word ‘person’ if it had wished to restrict the scope of [Title IX].” N. Haven Bd. of Educ. v.
Bell, 456 U.S. 512, 521 (1982). Instead, Congress extended Title IX protections to students and
“non-student[s]” alike. Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 708 (6th Cir. 2022). Nor
would the University’s rule make sense. A sexual assault victim who drops out of school given
the trauma, or one who graduates before filing suit, would have no recourse. See Br. of C.L. and

5We previously reversed the district court’s ruling that Doe could not pursue a Title IX deliberate
indifference claim because she was not “technically” a student at the University of Kentucky, but a student at
Bluegrass Community and Technical College, which is affiliated with the University. Doe v. Univ. of Ky., 971 F.3d
553, 558–59 (6th Cir. 2020). Because Doe participated in programs and activities furnished by the University—
including living in a University residence hall—we held that she had standing to pursue her deliberate indifference
claim under Title IX. Id.
No. 22-6012 Doe v. Univ. of Ky. Page 15

Survivor Advoc. Orgs. at 17–18. Accordingly, Doe can suffer an “adverse school-related action”
even if she is not a student.

The University’s contention that school disciplinary proceedings are not an “educational
activity or program” covered by Title IX likewise runs afoul of the statute’s text and
Supreme Court precedent. Appellee’s Br. at 49. Title IX defines the word “program” broadly.
Snyder-Hill, 48 F.4th at 708. It includes “all of the operations” of a university that receives
federal funds. 20 U.S.C. § 1687(2)(A). We recently held that an “‘education program or
activity’ . . . extends to situations in which individuals are, for example, accessing University
libraries . . . [or even] attending campus tours, sporting events, or other activities.” Snyder-Hill,
48 F.4th at 708. The Supreme Court has explained, albeit not in the Title IX context, that school
discipline is “essential if the educational function is to be performed.” Goss v. Lopez, 419 U.S.
565, 580 (1975). Thus, school disciplinary proceedings—like the four in this case—are plainly
“education-related” for Title IX purposes.

The upshot: Doe may bring an action under Title IX based on the retaliatory
circumstances surrounding the fourth disciplinary proceeding. Student or not, Doe availed
herself of the University’s disciplinary process and participated in the hearings, making the
University’s adverse actions regarding those hearings actionable. What Doe must show under
this prong is that the University’s actions, either individually or in combination, were adverse
enough to dissuade a reasonable person from pursuing a Title IX claim. See Hubbell, 933 F.3d at
570.

Doe identifies roughly four different categories of university actions that, in her view,
satisfy this standard. She points to: (1) the University’s delay of the fourth hearing and failure to
hold a pre-hearing meeting; (2) the University’s failure to adequately prosecute the case before
the hearing panel, and then its adversarial positions before the appeals board; (3) the hearing
panel and appeals board’s procedural and substantive decisions; and (4) the police chief’s
purposeful obstruction of Officer Sizemore’s testimony. We examine each theory in turn,
mindful that we ask whether these claims individually or in combination constitute an “adverse
school-related action.”
No. 22-6012 Doe v. Univ. of Ky. Page 16

Delay in Scheduling Fourth Hearing. Construing the facts in the light most favorable to
Doe, as we must, the University delayed the fourth proceeding for over a year, canceled the
hearing the morning it was supposed to occur on the alleged assailant’s request, did not
reschedule it until several months later, and then failed to schedule a pre-hearing meeting (in
violation of its own policy). That’s enough to dissuade a reasonable person from making or
supporting a charge of discrimination.

Pointing fingers, the University argues that while Doe and her attorney responded to
emails, they did not provide the University with Doe’s availability for the hearing. 6 But that
hardly explains the extensive delay. The University admits that it did not push forward with the
fourth hearing because of Doe’s Title IX lawsuit and did not hold the hearing until the lower
court admonished it for not doing so in an order denying the University’s motion to dismiss.
Indeed, it even canceled the fourth hearing on the morning it was supposed to take place in
October 2016 because holding the hearing as scheduled “would once again open the door to a
post-hearing challenge in federal court.” Lawson Letter, R. 140-17, PageID 2096. This
cancelation resulted in a delay of another three months.

The University’s delay satisfies our adverse-action requirement. We concluded that it
was a “materially adverse action” for a school to hold its employee grievance proceedings in
abeyance because the employee filed a charge with the Equal Employment Opportunity
Commission. Watford v. Jefferson Cnty. Pub. Schs., 870 F.3d 448, 453–54 (6th Cir. 2017). By
delaying the grievance process, the school forced the employee to choose between a speedy
extrajudicial resolution and an EEOC charge. Id. at 454–55. Faced with this decision, we held
that many employees may reasonably choose to forgo the EEOC process entirely. Id. at 454.
The same is true in Doe’s case. Two separate, lengthy delays and an abrupt, last-minute
cancelation may dissuade a reasonable person from pursuing a Title IX claim in federal court.

6The University attempts to justify the delay for another reason. It claims—for the first time—that in late
2015, it was facing “two seemingly contradictory Title IX lawsuits”: this one filed by Doe, and another filed by the
accused (not JD) in a different Title IX proceeding, who argued that the University’s Title IX procedures were
unconstitutional. Appellee’s Br. at 8–10, 45–46. But the University has forfeited this argument, so we decline to
consider it. Kreipke v. Wayne State Univ., 807 F.3d 768, 781 (6th Cir. 2015).
No. 22-6012 Doe v. Univ. of Ky. Page 17

Failure to Adequately Prosecute JD. Next, Doe points to a host of the University’s
missteps in prosecuting the case against JD and to its active undermining of multiple aspects of
her appeal. Combined, a reasonable juror could find that these repeated failures, too, count as an
“adverse action.”

Doe asks us to first look at the University’s prosecution of JD before the hearing panel,
which she deems lackluster and riddled with blunders. The University, for example, allowed
Doe to be impeached with testimony from the first hearing, which was previously thrown out as
“not admissible in any later proceeding.” In re JD Letter, R. 140-30, PageID 2161. It also
allowed JD to attack Doe’s motive in pursuing disciplinary proceedings against JD, suggesting
that she was incentivized by her lawsuit and potential for financial gains. The University’s
representative did not even object to the line of questioning. Indeed, it did not object to anything
at all. Nor did it take steps to present the best case against JD. It failed to secure Officer
Sizemore’s testimony—it did not even notify the police department that it requested her
participation until one business day before the hearing, nor did it reschedule the hearing when
she did not appear, even though it had last-minute canceled the fourth hearing previously for
JD’s concerns. It also stipulated to Officer Scott’s testimony because it viewed this testimony as
inconsequential. But Officer Scott’s testimony bolstered JD’s credibility, which was a central
issue in adjudicating the rape allegations against him. Indeed, the hearing panel relied on JD’s
credibility in rejecting Doe’s allegations, so Officer Scott’s testimony on that topic wasn’t a
nullity.

Then on appeal, the University actively undermined Doe’s arguments to the board and
even went as far as calling them “without merit.” University Resp. to Appeal, R. 140-39,
PageID 2205. It argued, identical to the claims it has made in federal court, that Officer
Sizemore’s testimony did not have evidentiary value and thus was not necessary in the hearing.
In doing so, the University directly contradicted Doe’s arguments that Officer Sizemore’s
testimony was important to Doe’s credibility and to the merits of her allegations against JD. It
also concluded that the anonymous messages and information contained in them should not be
taken seriously and that Officer Sizemore was providing childcare at the time of the hearing.
Insofar as Doe argued that the decision should be reversed on those bases, it urged the board to
No. 22-6012 Doe v. Univ. of Ky. Page 18

reject these arguments. It also blamed the panel’s decision, in part, on Doe’s decision to testify
remotely, calling it “strategic,” rather than acknowledging her trauma. Id. at PageID 2209. The
University may proffer justifications for its actions during the hearing and appeal, which are
relevant to subsequent steps of the McDonnell Douglas inquiry. But because these actions, if
believed by a jury, would deter other victims from asserting their rights under Title IX, they
satisfy the “adverse action” requirement at the prima facie stage.

Hearing Panel and Appeals Board Decisions. Doe further argues that the fourth hearing
panel’s procedural and substantive decisions and the subsequent appeals board’s approval of
those decisions clear the adverse-action threshold. We agree. That’s not to say that every time
the University resolves a student conduct hearing in favor of the accused it has committed an
adverse action. Here, Doe points to some very specific aspects of the hearing panel and appeals
board’s actions that would meet that standard.

Before reaching a decision, the fourth hearing panel made several procedural decisions
that Doe raises as evidence of retaliation. As mentioned, the hearing panel allowed Doe’s prior
testimony from the first hearing to attack her credibility, even though the appeals board had
previously concluded (in response to JD’s appeal when he was found responsible) that the exact
same testimony would be inadmissible in all subsequent proceedings. It also allowed
questioning—over her attorney’s objection—about Doe’s monetary incentives in filing her
lawsuit and participating in the student conduct hearings, even though she had participated in
three prior hearings before filing this lawsuit. Additionally, many of the substantive reasons the
hearing panel gave for finding Doe not credible—despite finding her credible three times
before—are specious and represent a hostility toward her that did not exist before she filed suit.

To conclude that JD raped Doe, the panel needed to find that they had sex without Doe’s
consent. Under University policy, “[c]onsent is defined as ‘a voluntary expression of
willingness, permission, or agreement to engage in specific sexual activity throughout a sexual
encounter.’” Fourth Appeal Report, R. 140-40, PageID 2215. Furthermore, “[i]t is the
responsibility of each person involved in the sexual activity to ensure that he or she has the
affirmative consent of the other to engage in the sexual activity.” Id. (emphasis added).
No. 22-6012 Doe v. Univ. of Ky. Page 19

Doe paints the hearing panel’s decision as resting on such thin inconsistencies and
innocuous details that it deprived her of a fair adjudication. For instance, it noted that while Doe
says she let JD into the building from the lobby, a video showed she actually retrieved him from
outside the building’s entrance. But the distinction between the lobby and the entrance is so
trivial, questions arise as to why the panel would hang Doe’s credibility on the difference.
Second, it pointed to the size of Doe’s dorm room to cast doubt on her testimony that JD took off
his clothes without her noticing. It ignored Doe’s explanation that JD did this while she was on
her computer finishing an assignment. Third, the panel explained that the video showed that Doe
was wearing a different shirt after the alleged rape, and Doe’s testimony only included mention
that JD removed her pants. The panel insisted that it was unlikely Doe would have changed her
shirt in front of someone who had just raped her. But here, the panel drew inferences from facts
not in evidence simply because Doe had not mentioned anything about her shirt in recounting the
alleged assault. Fourth, it found it strange that Doe talked to JD after escorting him out of the
building and then later sent a text message that said, “I wish you the best.” Fourth Panel Report,
R. 140-34, PageID 2182. Even though the message was not actually inconsistent with her story,
the panel intimated that if Doe was telling the truth, she would never have sent that message. It
also ignored other texts in the conversation that arguably bolstered Doe’s version of events.
Finally, it noted that Doe stated that she did not know that JD had a girlfriend, which was
contrary to her testimony from the first hearing where she stated that she did not want to be a
“second girlfriend.” Id. But again, the panel homed in on another slight inconsistency wholly
peripheral to her claim and used it to render her entire testimony untruthful. The panel’s only
reference to direct evidence came at the end. It concluded that the photos taken at the hospital
did not evince clear evidence of “biting, restraining, or alleged force.” Id. Despite these
procedural and substantive concerns, the appeals board affirmed the hearing panel in full and
dismissed Doe’s concerns that the University had not presented the best case against JD.

Viewed together, Doe has created a material question of fact as to whether the University
reversed course on dubious grounds as a front for retaliation. The hearing panel considered
testimony that it had previously found inadmissible. It allowed Doe’s lawsuit against the
University to influence its assessment of her complaint against JD. And it proceeded without
Officer Sizemore’s live testimony from the fourth hearing, even though she had a critical role in
No. 22-6012 Doe v. Univ. of Ky. Page 20

the rape investigation and could have placed Doe’s credibility in a more favorable light. Then
the appeals board dismissed these and other concerns. Taking these actions together, Doe has
met her burden in showing an adverse action.

Chief Monroe’s Interference. Doe further argues she suffered an adverse action when
Chief Monroe interfered with Officer Sizemore testifying in Doe’s favor at the fourth hearing
and secured Officer Scott’s testimony for JD instead. Her argument is that the University is both
vicariously liable for Chief Monroe’s action and that, once it learned of Chief Monroe’s
interference, it failed to take adequate steps to protect her from such retaliatory interference.

To the extent that Doe’s argument rests on a theory of respondeat superior, it fails. As
the district court correctly explained, “any conduct from Chief Monroe is not the University’s
conduct,” Op. and Mem., R. 151, PageID 2544, and we have declined to impute a subordinate’s
unlawful conduct to the educational institution for Title IX retaliation claims unless there is
evidence that the actions were taken at the behest of the institution. See Bose, 947 F.3d at 988.
(rejecting a claim that University could be liable for professor’s retaliatory actions after student
refused unwanted sexual advances). Of course, all of Doe’s evidence of retaliatory behavior
stems from employee actions—an institution must act through its people. But the other theories
involve actions taken by employees acting on behalf of the University in its institutional capacity
(after all, the University admittedly conducts these hearings and serves as judge, jury, and
prosecutor, and individuals serving in those capacities are doing so in the University’s stead).
Regarding Chief Monroe, Doe does not claim he conspired with the Title IX coordinator or any
other University administrator to interfere with Officer Sizemore’s testimony or that he was
otherwise acting at the University’s behest. Nor does she create a material question that he had
decision-making authority over the hearing; he was only charged with sending the requested
officers to testify. Instead, she relies on evidence that Chief Monroe, as a rogue actor, interfered
with Officer Sizemore’s testimony and asks us to impute his discriminatory conduct to the
University. But our precedent forecloses us from doing so.

That isn’t the end to Doe’s argument regarding Chief Monroe, however, as she also
asserts that the University retaliated against her by not adequately responding when it learned
about Chief Monroe’s actions. That theory rests on the University’s own choices in how it
No. 22-6012 Doe v. Univ. of Ky. Page 21

responded to the anonymous messages and other evidence that Chief Monroe interfered with
Officer Sizemore’s testimony—not just Chief Monroe’s actions standing alone. The University
can face liability under this theory.

We have never directly addressed whether deliberate indifference to retaliation is a
cognizable claim under Title IX. But it is well-established that “retaliation is discrimination ‘on
the basis of sex.’” Jackson, 544 U.S. at 174. And covered institutions have long known that
they may face liability when they respond with indifference to known acts of discrimination—
retaliation being one such discriminatory action. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.
629, 643 (1999). So when a university does not respond to a known retaliatory action because a
person has previously complained of sex discrimination, such inaction amounts to the
institution’s own intentional violation of Title IX. See id. at 645; see also Feminist Majority
Found. v. Hurley, 911 F.3d 674, 695 (4th Cir. 2018) (holding that “an educational institution can
be liable for acting with deliberate indifference toward known instances of student-on-student
retaliatory harassment”). Quite simply, a university cannot stand idly by when it knows about an
act of Title IX retaliation.

The question, then, is whether Doe has created a material question as to whether the
University was deliberately indifferent to retaliation by Chief Monroe. Based on the record
evidence, she has. Doe points to evidence that the University failed to adequately investigate the
allegations brought to its attention. Doe also points to testimony from Officer Sizemore, the
person at the heart of the issue, that she believed she was kept from the hearing. Officer
Sizemore testified that the University never notified her of either the date of the hearing or the
allegations in the anonymous messages, suggesting that she was misled so that she could not
present her testimony at the hearing. And the Title IX coordinator’s testimony and notes don’t
show otherwise. Officer Sizemore testified that the coordinator had asked her the narrow
question of whether she was told not to go, to which she responded that she was not. And
confronted with the fact that Officer Sizemore was, as the coordinator thought, on FMLA leave,
the coordinator declined to inform Officer Sizemore of the precise allegations regarding her
absence from the hearing. Together, the evidence creates a question as to the adequacy of the
University’s investigation. And even if these circumstances were not enough to create a material
No. 22-6012 Doe v. Univ. of Ky. Page 22

question of deliberate indifference, there’s more. The University defends its decision not to
thoroughly investigate because Doe’s attorney did not turn over the messages. But the
University received a similar message directly alleging that Chief Monroe had interfered. Upon
receipt of this information, the University declined to further investigate or even inform either
Doe or the appeals board of the additional anonymous message. A reasonable jury crediting
Doe’s account could conclude that the University was deliberately indifferent to Chief Monroe’s
obstruction of the key witness at the hearing.

B. Causation

Given that Doe has adduced sufficient evidence of multiple adverse school-related
actions, we next ask whether a causal connection exists between those actions and her protected
activity of filing a Title IX suit. For that inquiry, we evaluate whether Doe has presented
“evidence sufficient to raise the inference that her protected activity was the likely reason for the
adverse action.” Fuhr, 710 F.3d at 675.7 This “burden is minimal.” EEOC v. Avery Dennison
Corp., 104 F.3d 858, 861 (6th Cir. 1997). Doe need only “put forth some evidence to deduce a
causal connection between the retaliatory action and the protected activity.” Id. She has.

Doe’s argument regarding causation relies on a classic “before-and-after” comparison.
The first three times the hearing panel considered this student conduct matter, it concluded that
Doe was credible, and JD was culpable. Then she filed this Title IX lawsuit. Afterward, the
hearing panel considered the same student conduct matter again and came to the opposite
conclusion. What changed? Doe would say it was the lawsuit. And Doe emphasizes not only
the outcome of the initial three versus fourth hearings, but also the University’s conduct and
decisions both before and after she filed her lawsuit.

7In Nassar, the Supreme Court held that plaintiffs needed to show that the protected activity was the “but-
for” cause of the suffered adverse action to establish a prima facie case of retaliation under Title VII. 570 U.S. at
352. While some of our sister circuits have queried whether Nassar applies to Title IX retaliation claims, Hurley,
911 F.3d at 696 n.10, we have continued to apply the pre-Nassar standard for Title IX claims. Fuhr, 710 F.3d at
675; Gordon, 686 F. App’x at 320; Bose, 947 F.3d at 988; see also Nassar, 570 U.S. at 355–56 (distinguishing Title
VII’s text from Title IX’s “broad and general terms” that contemplate a broader swath of retaliatory conduct).
Therefore, we do so here.
No. 22-6012 Doe v. Univ. of Ky. Page 23

Consider the University’s conduct before and after the lawsuit with respect to the various
alleged adverse actions we just considered. For the first three hearings, the University scheduled
them promptly. Then, before the fourth hearing, there was an extensive delay. The University
admits that Doe’s lawsuit was the reason it delayed scheduling her fourth hearing. For the first
three hearings, the University held pre-hearing meetings, but not for the fourth. For the first
three hearings, it was sympathetic to the fact that Doe might not want to attend in person given
her trauma and hospitalizations, but for the fourth, it faulted her “strategic” choice not to be
present. University Resp. to Appeal, R. 140-40, PageID 2231. For the first three hearings, it
backed Doe’s arguments on appeal, but on the fourth appeal, it undermined and argued against
many of them. For the first three hearings, the minor discrepancy between Doe’s testimony that
she met JD in the lobby of her building when the video showed her meeting him directly outside
her building did not defeat her testimony; on the fourth, the University used that trivial
discrepancy to conclude she was not credible. The same is true for Doe’s change of shirt; for the
first three hearings, the fact that she changed her shirt after the alleged rape was inconsequential,
but not during the fourth. For the first three hearings, the University concluded—based on
largely the same evidence—that Doe was credible, yet for the fourth, it did not even object when
JD impugned her credibility by pointing to her federal lawsuit and the potential for a financial
award. Nor did it inform her or conduct a thorough investigation when it received evidence of
Chief Monroe’s interference.

The University responds with various nondiscriminatory explanations for each of these
actions. The delay, it says, was to accommodate Doe’s needs; the changes in procedure were to
protect JD’s due process rights; the decision not to reschedule the hearing for Officer Sizemore
was because Doe had prevailed without her in the past; the investigation of Chief Monroe was
not cursory because Doe would not turn over the messages; the panel concluded Doe was not
credible due to inconsistencies in her testimony, and so on. We do not dismiss the University’s
explanations, but they are more properly presented to a factfinder than to us. The juxtaposition
of the University’s conduct during the first three hearings (before her lawsuit) compared to the
fourth (after her lawsuit) leads to a reasonable inference that the University engaged in these
adverse actions because of Doe’s lawsuit and casts doubt as to whether the University’s
explanations were the actual reason for its conduct. See George v. Youngstown State Univ.,
No. 22-6012 Doe v. Univ. of Ky. Page 24

966 F.3d 446, 459–61 (6th Cir. 2020). That’s sufficient for Doe to meet her “minimal” burden in
establishing her prima facie case and to progress to the next stages of the McDonnell Douglas
test. The district court did not consider steps two and three of McDonnell Douglas, so we return
the case to the district court to do so consistent with our analysis of the prima facie case. E.g.,
Avery Dennison Corp., 104 F.3d at 863.

III. Purported Additional Bases for Affirmance

The University contends that, irrespective of whether Doe has established a prima facie
case of Title IX retaliation, we still must affirm the district court’s order on three alternative
bases. It claims that Doe cannot recover for an emotional injury, there is no private right of
action for retaliation under Title IX, and the University is entitled to sovereign immunity from
this suit. We address these arguments in turn and reject them all.

A. Emotional Distress

The University contends that Doe’s Title IX retaliation claim must fail because she
alleges only emotional injuries, and the Supreme Court has foreclosed emotional distress
damages under Title IX. See Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212, 230
(2022). But it mischaracterizes Doe’s injury. Doe alleges she was deprived “of equal access to
the educational benefits and opportunities provided by the University.” Third Am. Compl.,
R. 57, PageID 376. Discrimination is itself a harm. Muldrow v. City of St. Louis, 144 S. Ct. 967,
980 (2024) (Kavanaugh, J., concurring).

As discussed above, the student conduct proceedings the University has made available
to Doe and other alleged victims is an “education-related” program established to protect against
sex-based discrimination. By retaliating against her for filing this lawsuit, Doe claims that the
University has punished her for seeking to vindicate her rights under Title IX. Doe’s harm, then,
is discrimination on the basis of sex, which is an injury recognized by Title IX. See 20 U.S.C.
§ 1681(a). So the University’s argument is without merit.
No. 22-6012 Doe v. Univ. of Ky. Page 25

B. Private Right of Action

The University next argues that Title IX does not support an implied private right of
action against retaliation. As it must, the University recognizes that its argument is foreclosed by
the Supreme Court’s decision in Jackson v. Birmingham Board of Education, which recognized
such a cause of action. 544 U.S. at 171. And while the University argues that Jackson’s
underpinnings have been eroded by subsequent Supreme Court cases, it also acknowledges,
rightly, that Jackson remains binding until overruled by the Supreme Court. Therefore, the
University has preserved the argument “for possible Supreme Court review,” but we reject it
based on Jackson. Appellee’s Br. at 31.

C. Sovereign Immunity

Lastly, the University argues that it is entitled to sovereign immunity. In doing so, it
concedes that in Franks v. Kentucky School for the Deaf, we held that “Congress made its
intention to abrogate the states’ Title IX immunity unmistakably clear.” 142 F.3d 360, 363 (6th
Cir. 1998). But the University argues that we should distinguish Title IX retaliation claims from
other Title IX claims for sovereign immunity purposes. That argument falters because Title IX
retaliation claims are not based in a different part of Title IX than the claim we analyzed in
Franks, and the University was on notice that it was subject to these claims when it accepted
federal funding. See id. Franks plainly applies, and we decline to limit its scope to exclude
retaliation claims.

CONCLUSION

We reverse the district court’s order granting summary judgment in favor of the
University and remand for further proceedings consistent with this opinion.
No. 22-6012 Doe v. Univ. of Ky. Page 26

_________________

DISSENT
_________________

ALICE M. BATCHELDER, Circuit Judge, dissenting. Once more, we enter the
judicially created mire of Title IX jurisprudence. And, unfortunately, this majority opinion does
not provide clarity. Perhaps this is due to either the messy facts of this case or the messy law (or
both). On the facts, the majority decides for itself that JD sexually assaulted Jane Doe, and it
proceeds from that premise at every turn: in presenting its version of the facts, in criticizing
UK’s conduct of the Title IX hearings and appeals, in finding adverse education-related action,
and in its incredulity that the fourth hearing (after three appellate reversals) reversed course and
found no sexual assault. I do not know whether this is cause or effect of the “messy facts,” but
either way, after a thorough review of this record, I cannot subscribe to the majority’s version of
facts. As for the “messy law,” I am reminded of Justice Thomas’s lamentation in Jackson v.
Birmingham Board of Education, 544 U.S. 167, 195 (2005) (Thomas, J., dissenting), that “the
majority returns this Court to the days in which it created remedies out of whole cloth to
effectuate its vision of congressional purpose.” I respectfully dissent.

I.

“Even in cases where elusive concepts such as motive or intent are at issue, summary
judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations,
improbable inferences, and unsupported speculation.” Theidon v. Harvard Univ., 948 F.3d 477,
496 (1st Cir. 2020) (cleaned up); accord Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir.
2009) (“Conclusory statements unadorned with supporting facts are insufficient to establish a
factual dispute that will defeat summary judgment.”); Harbin-Bey v. Rutter, 420 F.3d 571, 580
(6th Cir. 2005) (explaining that circumstantial evidence of retaliation amounting to no “more
than bare allegations” will not be enough to defeat a motion for summary judgment). Here, with
conclusory allegations, improbable inferences, and unsupported speculation Doe has crafted an
No. 22-6012 Doe v. Univ. of Ky. Page 27

overarching conspiracy theory1 that UK has retaliated against her from the time that she filed this
action in 2015 through every action that UK has taken since that filing.

Of course, we review summary judgment rulings de novo, construing the facts in the light
most favorable to the nonmovant, see Bose v. Bea, 947 F.3d 983, 988 (6th Cir. 2020), but we
must look to the entirety of the record in this review. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).2 And Doe must do more than cast “metaphysical doubt”
over the material facts regarding whether a reasonable juror would believe that she established a
prima facie case of Title IX retaliation. Id. at 586; see also Chao v. Hall Holding Co., Inc., 285
F.3d 415, 424 (6th Cir. 2002). To draw inferences in favor of the nonmovant does not mean that
we blindly accept the nonmovant’s assertions at face value. Instead, we construe favorably the
nonmovant’s statements of fact that are supported by the record.

Moreover, although we review the district court’s summary judgment ruling de novo, we
do not scrutinize school disciplinary proceedings—such as the one at issue here—with the same
scrutinous review. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648–49 (1999); New
Jersey v. T.L.O., 469 U.S. 325, 342–43 n.9 (1985); Tinker v. Des Moines Indep. Comm. Sch.
Dist., 393 U.S. 503, 507 (1969). School disciplinary proceedings are not criminal trials that
require the formalities of a courtroom. Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 (6th Cir.
2005); see also Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 88 (1978) (“A
school is an academic institution, not a courtroom or administrative hearing room.”). So, some
deference is due to the school in the way it conducts its disciplinary proceedings, particularly
when the record does not show that the proceeding at issue was constitutionally deficient. Davis,
526 U.S. at 648–49; New Jersey, 469 U.S. at 342–43 n.9. We do not substitute our view of
school policies or impose what we think would have been the best practice when the hearing was

1In her appellate brief, Doe alleges that almost every party involved in UK’s Title IX process acted with
retaliatory intent against her. These include, to name a few, the Dean of Students, the Title IX Hearing Officer, the
then-Deputy Title IX Coordinator, the hearing panel, the UK appeals review board, UK’s general counsel, and the
UK Chief of Police. According to Doe, the only nonretaliatory party whom UK employed was Officer Sizemore.
To reverse course after denying JD due process, and provide both parties with constitutionally sufficient due
process, is not evidence of a vast conspiracy to retaliate against Doe.
2And in this de novo review of summary judgment we can affirm on any basis supported by the record.
Pipefitters Local 636 Ins. Fund v. Blue Cross & Blue Shield, 722 F.3d 861, 865 (6th Cir. 2013).
No. 22-6012 Doe v. Univ. of Ky. Page 28

constitutionally sufficient, that is, both parties to the proceeding were afforded due process.
Goss v. Lopez, 419 U.S. 565, 580 (1975); Doe v. Univ. of Cincinnati, 872 F.3d 393, 399 (6th Cir.
2017); see also Mathews v. Elridge, 424 U.S. 319, 334–35 (1976).

In sum, we should not craft judicial remedies “out of whole cloth” or ignore parts of the
record while highlighting others so that a claim survives a motion for summary judgment.

II.

While at UK, Jane Doe accused her ex-boyfriend (“JD”) of sexual assault. Surveillance
footage twice showed Doe and JD together on October 2, 2014. First, Doe exited her residence
hall, met JD, and escorted him to her dorm. Doc. 140-34, PageID#2182. Later, Doe and JD
were seen on video for a second time as they exited Doe’s dorm. Id. This time Doe wore an
entirely different outfit. Id. As Doe signed JD out of the dormitory, they were talking with one
another. Id. Doe alleges that between these two appearances on surveillance video, JD raped her
while they both were in her dorm room.

After talking with her roommate and calling her mother, Doe called the UK police
department to report a rape. Around this time, a series of text messages were exchanged between
Doe and JD.3 Responding to Doe’s call, Officer Laura Sizemore took Doe to the hospital to be
examined for sexual assault.4

UK immediately—meaning the next day, October 3—issued a no-contact order and
suspended JD. As the majority recounts in some detail, the first disciplinary hearing was on
October 8, from which the hearing panel found JD guilty and permanently expelled him. JD
appealed to the University Appeals Board (UAB), which reversed because the hearing had been

3See infra Section II, pg. 34.

4The medical report from that hospital visit shows that Doe claimed that JD ejaculated on her clothes or her
bedding. Doc. 131-1, PageID#1575. The examiner did not find evidence of vaginal injury. Id. at 1576. The
majority states that Doe sustained lacerations to her shoulder and back, but the medical examiner noted that Doe had
“thin” “scratches” on the “back of [her] neck and shoulder.” Id. at 1575, 1577. The examiner categorized Doe’s
injuries as “AB,” “TE,” and “AB/TE,” meaning abrasion, tenderness, and abrasion/tenderness, respectively. Id. at
1577.
No. 22-6012 Doe v. Univ. of Ky. Page 29

held without JD.5 The second hearing was held on December 18, 2014; the panel again found JD
guilty, and the UAB reversed again—this time because the hearing panel heard recorded
testimony from Doe from the first hearing, and JD did not have an opportunity to cross-examine
Doe or her witness.6 The UAB explained that Doe’s recorded testimony from the first hearing
“was not admissible in any later proceeding against [JD].” Doc. 140-30, PageID#2161. The
third hearing was on March 26, 2015, and the panel again found JD guilty. But on June 9 the
UAB reversed once more because Officer Sizemore and Detective Brannock testified in each
other’s presence in blatant violation of the procedures set out in the student code of conduct. It
bears mention that this third hearing was the only hearing that Officer Sizemore attended and
that by the date of the third reversal, UK was in summer session.

On July 29, then-Director of the Office of Student Conduct, Dr. Denise Simpson, emailed
Doe about scheduling yet another hearing with the “goal . . . to schedule this hearing as soon as
we can.” Doc. 140-2, PageID#1995. Because JD was no longer enrolled at UK, Doe responded
to the email that she “would like to request [that] the process be suspended unless/until [JD]
attempts to return to UK.” Id. at 1996. In subsequent emails, Doe asked whether the hearing
could occur in August. Dr. Simpson then sent Doe a confidential, online poll regarding Doe’s
August-availability. However, on July 30, Doe stated that she had retained new counsel and
would need to check on her attorney’s availability before proceeding with scheduling the fourth
hearing.

In August, Doe withdrew from BCTC. At that time, Doe’s new attorney, Elizabeth
Howell, sent UK a Cease Direct Contact letter, stating that “we certainly object to the fourth
hearing” but will participate to the extent necessary to find JD responsible. Doc. 140-3,
PageID#2001. On October 1, 2015, Doe initiated this action in federal court. Her sole claim
was for Title IX deliberate indifference to harassment, and she requested as injunctive relief that
UK comply with Title IX law “to be determined at trial.” Doc. 1, PageID#11. The nature of the
injunctive relief was unspecified. Around that time, UK faced a competing lawsuit featuring an

5JD had requested a continuance, but his request was denied, Doc. 12, PageID#149–50, and following the
first hearing, JD withdrew from classes and UK housing.
6Around this time, Doe had re-enrolled in classes at BCTC.
No. 22-6012 Doe v. Univ. of Ky. Page 30

inverse claim—one filed by a student accused of sexual assault (not JD), complaining that UK
did not afford accuseds adequate due process. Doc. 8-1, PageID#116; see also Doc. 8,
PageID#114–15 (Motion to Consolidate).

UK moved to dismiss Doe’s lawsuit on January 6, 2016, claiming that Doe’s injunctive
relief was not specific and that it did not specify “what Ms. Doe wants the [c]ourt to compel
[UK] to do through injunctive relief.” Doc. 5, PageID#18. Doe filed a response to that motion
on January 27, 2016, stating that she did not seek “to enjoin the on-campus proceeding against
JD.” Doc. 9-1, PageID#136. The very next day, UK emailed Doe’s attorney, stating that “given
[Doe]’s explicit representation to the federal court that she will not seek to enjoin any future
student disciplinary proceedings, [UK] wishes to schedule the fourth hearing as soon as
possible.” Doc. 140-37, PageID#2035. Doe’s attorney responded that she was coordinating with
Doe and Doe’s mental health provider and that she would “have a firm answer to you regarding
her participation as soon as possible.” Doc. 140-8, PageID#2037. Doe’s attorney requested to
be updated if JD’s counsel provided UK with potential dates. The record reflects that neither
party followed up from this email exchange.

The district court denied UK’s motion to dismiss and admonished UK for delaying the
fourth proceeding. The district court explained that “[e]ven if [UK] viewed this lawsuit as a bar
to scheduling the fourth disciplinary hearing, that does not explain the four months between the
third UAB decision and the filing of the Complaint in this case.” Doc. 12, PageID#156. It is
noteworthy that UK had delayed the fourth hearing before Doe filed this lawsuit, meaning that
the delay up to that point could not have been in response to Doe’s filing this lawsuit. The court
also took the time to admonish UK about its constitutionally insufficient Title IX hearings that
consistently deprived accuseds of due process. Id. at 154–55; see also id. at 154 n.2. In so
doing, the court dismissed Doe’s claim that UK was deliberately indifferent to her rights
throughout the Title IX process. The district court said, “Although it was a protracted process
due to the errors in the hearings, the facts pled show the University took significant action and
did not act with deliberate indifference regarding [Doe]’s sexual assault allegations during the
three hearings and appeals.” Id. at 155. In sum, the district court explained that the Title IX
No. 22-6012 Doe v. Univ. of Ky. Page 31

process at UK was constitutionally sufficient for accusers while it was insufficient towards those
accused of sexual assault.

A day later, on September 1, 2016, UK—through counsel—attempted to schedule a
fourth hearing between September 15 and October 15, 2016. Based upon both Doe’s and JD’s
counsel’s schedules, the fourth hearing was set for October 19, 2016. Doc. 131-12,
PageID1669–72; see also Doc. 131-13, PageID1673.7 The Hearing Officer for the fourth
hearing, Professor Robert G. Lawson8 granted a continuance on the day of the hearing, stating
that there were due process concerns that he needed to remedy before proceeding. Namely, Doe
had requested that her testimony for the fourth hearing “be presented in the form of a record of
her testimony from the prior hearing.” Doc. 131-13, PageID#1674. Professor Lawson granted
that request.9

After he granted Doe’s request to use her prior testimony in lieu of testifying at the fourth
hearing, Professor Lawson turned Doe’s recorded testimony over to JD’s counsel for review.
JD’s counsel raised “a number of questions concerning” due process because of the recorded
testimony and what impact the testimony would have on “the objectivity of the hearing panel.”
Doc. 131-13, PageID#1674. So, attempting to prevent yet another appeal and reversal on due
process grounds, Professor Lawson decided that a continuance was appropriate. The fourth
hearing was rescheduled for November 14 and then once more to January 10, 2017.

At this point, a bit of information about UK’s Title IX hearing procedure is in order.
Prior to any Title IX hearing, UK holds a pre-hearing resolution meeting. However, UK did not
hold that pre-hearing meeting before the fourth hearing. A panel of three faculty members

7JD’s counsel’s law partner passed away, so JD’s counsel requested “another week or so” after October 15,
2016. Doc. 131-12, PageID#1671. Doe’s counsel was in court “Monday and Friday” of the week of October 17–21.
Id. at 1669.
8Robert Lawson authored both the Kentucky Penal Code and the Kentucky Rules of Evidence and was
twice dean of the University of Kentucky College of Law. John Cheves, After 50 Years at UK, Professor who Wrote
much of Kentucky Law and Investigated UK Athletics is Retiring, Lexington Herald Leader,
https://www.kentucky.com/news/local/education/article44605044.html, (June 15, 2015, 11:50 PM).
9The record reflects that Doe was diagnosed with PTSD after the third hearing and was hospitalized.
Professor Lawson explained that in granting Doe’s request to use her recorded testimony, he “was trying to ease the
difficulty of the process for [Doe].” Doc. 131-14, PageID1674.
No. 22-6012 Doe v. Univ. of Ky. Page 32

composes the hearing panel who decides the case. Per UK policy, both parties to a Title IX
hearing “shall submit to the Hearing Officer any information they wish to present at the hearing,
the name(s) of support person(s) and whether the support person is an attorney, [a] preliminary
list of questions, and a possible list of witnesses six (6) business days prior to the hearing.” Doc.
140-11, PageID#2071. After that information is submitted to the hearing officer, “[t]he Title IX
Coordinator shall arrange the attendance of witnesses who are members of the [UK] community,
if reasonably possible.” Id. Hearing officers “rule[] on all questions of law, whether substantive,
evidentiary, or procedural.” Id. at 2070–71. The Hearing Officer is responsible for screening the
questions and posing them to both parties at the hearing. Prior to the hearing, all parties have an
opportunity to object to questions that they deem irrelevant.

At the fourth hearing, Doe was represented by UK Dean of Students Nick Kerhwald and
her own attorney, Elizabeth Howell. Dean Kerhwald was Doe’s university representative, whose
role was to prove by a preponderance of the evidence that JD violated the student code of
conduct. But both Kerhwald and Doe’s attorney could object at the hearing. Doc. 140-11,
PageID#2071, 2072; Doc. 140-28, PageID#2146; Doc. 140-16, PageID#2091. Per her attorney’s
requests, Doe attended the hearing via closed-circuit television connection for cross-examination,
and her recorded testimony from the third hearing was used in lieu of her providing direct
testimony. Dean Kerhwald argued the case for Doe, albeit without presenting any objections,
and closed argumentation in the fourth hearing by stating Doe’s case that JD violated the UK
policy on sexual conduct. Officer Sizemore’s police report was read into evidence at the fourth
hearing in lieu of live testimony.10 Officer Sizemore later stated that her live testimony,

10Regarding Sizemore’s absence, a series of unfortunate events occurred—some of which are immaterial to
the resolution of this dispute. For starters, the record reflects that Sizemore did not attend the fourth hearing because
she had childcare issues on that day. Doc. 140-1, PageID#1986–87; Doc. 131-34, PageID#1905–06. The record
further reflects that Doe’s attorney was informally told that Sizemore was on FMLA leave on the day of the hearing.
Doc. 140-38, PageID#2199. But Sizemore claims that something was awry. Doc. 140-1, PageID#1988, 1990.
A day before the hearing, Sizemore was called into UK Chief of Police Monroe’s office. Monroe asked
Sizemore if she had childcare issues and if she had to be somewhere on January 10, 2017, she could not be for those
issues. Id. at 1986–87. Sizemore responded in the affirmative. Later, when Sizemore found out that the fourth
hearing took place while she had childcare issues, she was “extremely upset.” Doc. 140-27, PageID#2137. When
Sizemore found out that “someone was told [she] was on FMLA and . . . that [she] couldn’t attend this hearing and
that hearing,” Doc. 140-1, PageID#1989, she thought, “that didn’t look good.” Id. So, she drafted a memo on
January 17, 2017. Sizemore’s memo confirms that Chief Monroe asked her if she had childcare issues. Doc. 131-
34, PageID#1905–06. After the fact, and reported to nobody with Title IX authority until this litigation, Sizemore
No. 22-6012 Doe v. Univ. of Ky. Page 33

if provided, would not have differed from her police report. Doc. 140-1, PageID#1992; Doc.
131-1, PageID1592 (Beauman Cross-Examination of Sizemore). Sizemore made clear that she
could have provided more opinions beyond the scope of her police report but that everything she
knew, factually, was contained in her report. Doc. 140-1, PageID#1992.

During cross-examination, Professor Lawson allowed questions that explored Doe’s
credibility and motivations. Specifically, Doe was impeached with recorded statements from the
first hearing in which she stated that she did not want to be JD’s “second girlfriend.” The UAB
had held that this recorded testimony was not to be used in a later proceeding against JD. Doc.
140-30, PageID#2161. The UAB had not categorically excluded that testimony from any other
use. Professor Lawson also allowed a question about Doe’s financial motivations. He asked
Doe if she was concerned “that if [JD] is not found responsible in this proceeding . . . could [it]
have a negative effect on your lawsuit?” Doc. 140-29, PageID#2151.

In finding that JD was not responsible for the charged violations, the hearing panel
concluded that JD was more credible and plausible than Doe. The hearing panel found
inconsistencies in Doe’s version of events, stating that the evidence showed that Doe “had to go
outside to retrieve [JD],” instead of JD’s calling Doe from the lobby of the dormitory. Doc. 140-
34, PageID#2182. The hearing panel questioned how it was possible, given that Doe and JD
were together in Doe’s dorm room and the small space of that room, that Doe could not have
been aware that JD had disrobed. The hearing panel also explained that Doe could be seen
wearing one outfit taking JD to her room but reappearing in an entirely different outfit as she
escorted him out of the dormitory. In the panel’s formulation, “why would [Doe] remove [her]

questioned the intentions of Chief Monroe, stating that “his intentions . . . were not innocent at the time.” Doc. 140-
1, PageID#1989.
Backing up further in time, on January 6, 2017, Jeremy Enlow (UK’s then-Equal Opportunity Investigator)
emailed Captain Bill Webb about having two UK police officers testify at the fourth hearing. The officers requested
were Laura Sizemore and Eric Scott, the football liaison. Sizemore was requested by Doe, and Scott was requested
by JD. See Doc. 140-6, PageID#2033; Doc. 140-21, PageID#2108; Doc. 140-48, PageID#2507. Webb was not in
the office that day, so he did not respond until Monday, January 9. Doc. 140-21, PageID#2108. After Enlow told
Webb what Title IX matter both Sizemore and Scott were requested for, Webb responded that both officers were
unable to attend and to contact Chief Monroe with any other questions. Id. at 2106. Enlow contacted Monroe,
who—at that time—met with Sizemore about her childcare issues and made a police-training accommodation to
allow Scott to skip the training and attend the hearing.
Ultimately, neither officer attended the hearing. Scott’s testimony was stipulated to, and Sizemore’s police
report was read into the record.
No. 22-6012 Doe v. Univ. of Ky. Page 34

shirt in order to change in front of [her] alleged attacker,” when Doe alleged that JD removed her
pants, not her top-wear. Id. The panel found it odd that Doe and JD continued with
conversation, after Doe had signed him out of the dormitory as shown on surveillance footage.
And the text messages sent between Doe and JD “did not align correctly with [Doe’s]
testimony.” Id.

Prior to Doe’s interactions with her roommate and mother, Doe texted JD. See Doc. 131-
1, PageID#1579–84. After telling JD to delete her number, she texted, “we aint working g shit”
because he was “a hoe.” Id. at 1579. She later texted, “Bye i wish you best !” Id. at 1580. In
response to a heart-break emoji sent by JD, Doe replied with two laughing-face emoji’s “yeah
that me , thanks ! please delete my number .” Id. Later, Doe’s roommate took her phone and
texted JD, “stay your gorrilla looking ass away from [Doe].” Id. at 1581. The roommate further
texted, “i know you raped her” “and if the cops dont get you, then i will be sure of it that youre
off the foorball team and out of Uk and [Doe’s] life!” Id. Then, when Doe herself texted JD, she
asked “what did earlier mean ?” Id. at 1582. JD replied, “Why would she play around like that
[referring to the roommate] , it’s not funny or a joke to play around like that [Doe] . That’s can
fuck shit up for everything .” Id. Doe replied, “i did tell you to stop didnt i ?” Id. at 1583. JD
said back “I have sisters dude, I wouldn’t do that. Why you wanna say I did something like
that.” Id. Doe did not respond.

The panel also stated that “the photos taken at the hospital of [Doe] were not clear
indications of the allegations made of biting, restraining, or alleged force used against [Doe].”
Doc. 140-34, PageID#2182. Finally, the panel took issue with Doe’s assertion that she did not
know that JD had a girlfriend at the time of the incident. The panel members explained that they
“listened to a recorded testimony of [Doe] in which she stated not being a second girlfriend,
which caused an additional level of concern in regard to the credibility of [Doe].” Id. Doe
appealed to the UAB.

As for UK’s appellate process, the record clearly reflects that, on appeal, UK does not
stand in the shoes of the complaining witness as it does during Title IX hearings. The student
code of conduct explains that the “respondent or complaining witness may appeal the decision
and/or sanction.” Doc. 140-11, PageID#2073. Notably absent from who can appeal is the
No. 22-6012 Doe v. Univ. of Ky. Page 35

university. Instead of representing the complaining witness on appeal, the university may file a
separate response to the appeal—not on behalf of either party. Id. at 2074. And this is exactly
what UK did here.11

Doe’s appeal consisted of seven claims as categorized by the appeals board. The first
was that the hearing panel failed to make a finding on whether the sexual activity between Doe
and JD was consensual. Doc. 140-40, PageID#2216-17. The UAB concluded that this claim
lacked merit. By finding in favor of JD, the hearing panel concluded that JD did not rape Doe,
and the UAB explained that the word “consent” need not appear when it can reasonably be
deduced that the hearing panel found the sexual activity to be consensual.

Next, Doe claimed that UK violated her due process rights (1) as a result of a line of
questioning regarding her criminal complaint against JD and civil case against UK;12 (2) because
JD submitted testimony about his background while Doe did not; and (3) because Doe’s witness
(her roommate) was questioned about counseling that she had received. Id. at 2218–2228. The
UAB found that the line of questioning did not violate Doe’s due process rights because
Professor Lawson reasonably weighed the potential motivation in Doe’s testimony versus bias
that cross-examination questions might engender. The UAB also found that Doe was not limited
in what information she could have presented.13 And the questions as to Doe’s witness’s
counseling “provided context as to [the witness’s] whereabouts and emotional state on the day in
question.” Id. at 2228.

11In its response, UK summarized Doe’s appellate claims in three categories: (1) new information, (2) due
process concerns related to Officer Sizemore’s absence and her police report, and (3) a concern that the hearing
panel did not include a factual finding that sexual activity occurred. Doc. 140-39, PageID#2205. In UK’s separate
role on appeal, it argued that Doe’s first two grounds for appeal were without merit while the third ground was
meritorious. The majority takes issue with the fact that UK took some positions that were adverse to Doe on appeal.
But the majority’s concern fails to recognize that UK’s role on appeal was not the same as its role during the fourth
hearing. UK was free to advance arguments that it deemed meritorious while advocating against arguments that
lacked merit.
12The criminal complaint that Doe filed against JD was dismissed by the time of the fourth hearing and
Doe’s appeal. In fact, the grand jury in that case chose not to indict JD.
13Baked into this claim was another claim that JD was asked leading questions about the size of the dorm
room. The UAB found that, regardless of testimony about the size of the room, the hearing panel could have
found—based solely on pictures of the dorm—that the room was so small that Doe could not have been unaware of
JD’s disrobing. Doc. 140-40, PageID#2226.
No. 22-6012 Doe v. Univ. of Ky. Page 36

Doe also claimed that new information had come to light that would have altered the
panel’s decision, related to Officer Sizemore’s absence at the fourth hearing. Implicit in this
claim were two accusations: (1) that Officer Sizemore’s absence violated Doe’s right to due
process and (2) that UK Chief of Police, Joseph Monroe, acted to manipulate the outcome of the
hearing by preventing Officer Sizemore from testifying. Id. at 2230. Regarding Officer
Sizemore’s absence and potential due process concerns, the UAB reasoned that Doe and her
counsel as well as JD could have requested a continuance to reschedule the hearing at a time
when Officer Sizemore could attend. In response to this portion of Doe’s appeal, UK stated that
it investigated the allegations of witness interference and concluded that no further investigation
was warranted. Furthermore, UK “contacted Officer Sizemore . . . regarding any pressure to not
participate in the [fourth hearing]. Officer Sizemore indicated there was no pressure from any
University official for her not to participate in the hearing. Officer Sizemore indicated she was
unable to attend because she was unable to secure childcare for her infant child.” Doc. 140-39,
PageID#2208.

The UAB also stated that Officer Sizemore’s report was read at the fourth hearing, and
JD had forfeited the right to cross-examine Officer Sizemore as well. The UAB concluded that
Officer Sizemore’s absence did not have an impact on the hearing.

Regarding the allegation that Chief Monroe attempted to influence the proceeding by
preventing Officer Sizemore’s testimony, the UAB noted that Doe’s attorney received
anonymous, encrypted emails nine days after the fourth hearing containing this allegation. When
asked to provide the emails, Doe’s attorney refused. The UAB stated that “[Doe] cannot raise
the spectre of corruption, refuse to provide evidence, and then rely on her allegations to reverse
the Panel’s decision.” Doc. 140-40, PageID#2232. Even after Doe’s attorney would not provide
the anonymous emails, UK’s then-Deputy Title IX Coordinator, Martha Alexander, investigated
the allegations of interference. Notably, as Deputy Alexander testified, when investigating an
allegation made through anonymous email, there is no complainant with whom to follow-up.

Deputy Alexander called Officer Sizemore to investigate. Doc. 140-1, PageID#1990.
Apparently, Alexander believed that Sizemore had not been at work for some time, consistent
with the mistaken belief that Sizemore was on FMLA leave, because when Alexander stated that
No. 22-6012 Doe v. Univ. of Ky. Page 37

she was “glad” that Sizemore was “finally back to work” and Sizemore responded that she had
already been back for some time, Alexander fell silent. Id. Sizemore testified that Alexander
“seemed pretty aggravated” after hearing that. Id. Then, rather than simply confirming the
police department’s reason for Sizemore’s absence at the fourth hearing (childcare issues),
Alexander asked, “Did someone tell you not to go [to the fourth hearing]?” Id. Sizemore
responded, “[n]o.” Id. Sizemore interpreted this question as asking if someone had threatened
her not to go. She elaborated that “what popped in my head was the conversation with chief
[Monroe] from prior,” but she did not tell Alexander about that and her belief that Monroe was
interfering with the hearing. Id. When UK eventually received copies of the anonymous email,
UK decided that no further investigation was warranted. Later, another anonymous, encrypted
email was sent directly to UK that was materially the same as the others, which prompted UK to
ask Chief Monroe to account for a timeline of events leading up to the fourth hearing. Doc. 140-
36, PageID#2193; Doc. 140-46, PageID#2476; Doc. 140-24, PageID#2128–29 (timeline).

Doe’s final claim to the UAB was about the fourth hearing panel’s alleged failure to
“distinguish the real facts of the case which have remained unchanged over four traumatic
hearings, from the irrelevant extrinsic evidence presented” by JD. Doc. 140-40, PageID#2233.
The UAB reasoned that the panel heard evidence presented by both parties and a witness. The
panel reviewed photographs and videos while also examining Officer Sizemore’s police report.
The panel found JD to be more credible than Doe. The UAB found that the panel’s conclusion
was not clearly erroneous.

Now, returning to Doe’s lawsuit against UK, after a series of amended complaints, one
claim remained before the district court: Title IX retaliation. UK moved for summary judgment,
and the district court granted that motion, stating “Because Doe’s assertions are too speculative
to the survive summary judgment standard, the Court finds that [UK] is entitled to judgment as a
matter of law.” Doc. 151, PageID#2534. The district court explained that Doe had “not
submitted evidence from which a reasonable jury could conclude that she established a prima
facie case of retaliation.” Id. at 2546.14 While flawed on the education-related nature of these

14In so doing, however, the district court committed two errors. First, the district court stated that it
restricted its view of Doe’s Title IX retaliation claims to Doe’s operative complaint. It is worth noting that the court
No. 22-6012 Doe v. Univ. of Ky. Page 38

Title IX proceedings, the district court’s ultimate holding—that Doe did not suffer an adverse
action for purposes of a Title IX retaliation claim—is correct, and, albeit on alternative grounds,
I agree.

Doe speculates that at every turn, UK responded with retaliatory animus towards Doe.
However, it is clear that when considered in its totality, the record contains no genuine issues of
material fact. Even construing all facts and inferences in a light most favorable to Doe, this case
should not go beyond summary judgment, and we should be hesitant to expand our judicially
created Title IX law on this record.

III.

In 2005, the Supreme Court created an implied private right of action for Title IX
retaliation claims. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005); see also
Cannon v. Univ. of Chicago, 441 U.S. 677, 703 (1979) (creating an implied private right of
action to enforce Title IX). The Court coupled retaliation with gender-based discrimination to
create this right of action, explaining that the retaliation must be motivated by gender-based

still considered facts and details beyond those to which it was supposedly restricting itself. UK had argued that Doe
asserted more retaliatory actions in response to UK’s motion to dismiss the third complaint. While Doe clarified
what retaliatory actions she was pleading in her response, that clarification did not actually contain new allegations.
Compare Doc. 57 with Doc. 106. So, UK’s characterization of the operative complaint and the subsequent pleadings
was incorrect. Moreover, on summary judgment, we look to the record “taken as a whole.” Matsushita Elec., 475
U.S. at 587. The district court’s supposed restriction was error. Here, I agree with the majority.
Second, the district court stated that the passage of time destroyed the educational nature of the fourth
hearing. This was also error. We addressed this issue in a prior appeal, in which we established that Doe has
standing to pursue her Title IX retaliation claim. See Doe v. Univ. of Ky., 971 F.3d 553, 558-59 (6th Cir. 2020); see
also id. at 558, 559 n.4; Goss, 419 U.S. at 580 (explaining that school disciplinary proceedings are “essential if the
educational function is to be performed”); Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 686 (1986). We also explained
that Title IX requires a close connection between a plaintiff and a Title IX recipient. Doe, 971 F.3d at 558, 559 n.4.
The text of Title IX supports our interpretation. See 20 U.S.C. § 1681. So, while I agree with the majority that this
proceeding was education-related, I cannot join in the majority’s cursory analysis of Snyder-Hill v. Ohio State
Univ.’s impermissible expansion of Title IX law, see 48 F.4th 686, 707–09 (6th Cir. 2022) (expanding Title IX law
to include a plaintiff class that bears an attenuated connection to a Title IX recipient); see also id. at 719–20 (Guy, J.,
dissenting), and the majority’s adoption of Snyder-Hill’s construal of North Haven Bd. of Educ. v. Bell, 456 U.S.
512 (1982). Compare Snyder-Hill, 48 F.4th at 707–09 with North Haven, 456 U.S. at 520–22 (explaining that
employees of Title IX recipients can bring Title IX claims, not that members of the public at large can bring these
claims); see also North Haven, 456 U.S. at 523–30 (explaining that the legislative history of Title IX supports that
employees of Title IX recipients can bring a Title IX suit, not that a Title IX “person” is any member of the public).
Title IX plaintiffs must have some connection to a Title IX recipient to bring a claim against that recipient. Doe has
such a connection here, so we need not sign on to Snyder-Hill’s impermissible Title IX expansion, including a
plaintiff class too far removed from the Title IX recipient.
No. 22-6012 Doe v. Univ. of Ky. Page 39

discrimination. Jackson, 544 U.S. at 176–78; see also id. at 173–74 (“Retaliation is, by
definition, an intentional act. It is a form of ‘discrimination’ because the complainant is being
subjected to differential treatment.”).15

In turn, many Circuit Courts treat Title IX retaliation claims by analogizing them to Title
VII retaliation claims.16 We do the same. See, e.g., Goldblum v. Univ. of Cincinnatti, 62 F.4th
244, 251 (6th Cir. 2023); Bose, 947 F.3d at 988–89. If the claimant uses direct evidence to
establish a prima facie case of Title IX retaliation, then the inquiry stops there, and the claim
survives summary judgment. Goldblum, 62 F.4th at 251. Direct evidence “requires no
inferences to conclude that unlawful retaliation was a motivating factor in the employer’s
action.” Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013), abrogated on other
grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). However, when a
plaintiff uses indirect evidence to show retaliation, then the McDonnell Douglas burden-shifting
framework applies. Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir. 2010);
Goldblum, 62 F.4th at 251.

First, according to the burden-shifting framework, Title IX retaliation claimants must
establish a prima facie case of retaliation, showing that: “(1) [the claimant] engaged in protected
activity, (2) the funding recipient knew of the protected activity, (3) [the claimant] suffered an
adverse education-related action, and (4) a causal connection exists between the protected
activity and the adverse action.” Goldblum, 62 F.4th at 251; see also Seeger v. Cincinnati Bell
Tel. Co., 681 F.3d 274, 283 (6th Cir. 2007) (explaining that the burden of proof at the prima facie
stage is minimal). But see Owens v. Circassia Pharms., Inc., 33 F.4th 814, 835 (5th Cir. 2022)
(“[T]he mere fact that some adverse action is taken after an employee engages in some protected
activity will not always be enough for a prima facie case.”).

15The Department of Education has since weighed in. “No recipient or other person may intimidate,
threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege
secured by [T]itle IX or this part, or because the individual has made a report or complaint, testified, assisted, or
participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part.
Intimidation, threats, coercion, or discrimination, . . . for the purpose of interfering with any right or privilege
secured by [T]itle IX or this part, constitutes retaliation.” 34 C.F.R. § 106.71(a).
16See, e.g., Doe v. Sch. Dist. No. 1, 970 F.3d 1300, 1315 (10th Cir. 2020); Austin v. Univ. of Or., 925 F.3d
1133, 1136 n.3 (9th Cir. 2019); Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020); Doe v.
Columbia Univ., 831 F.3d 46, 55 (2d Cir. 2016); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002).
No. 22-6012 Doe v. Univ. of Ky. Page 40

Second, if the claimant establishes a prima facie case, the burden shifts to the Title IX
recipient to demonstrate legitimate, nonretaliatory reasons for its actions. Goldblum, 62 F.4th at
251 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

Third, if the recipient meets its burden, the claimant may then refute the recipient’s
proffered reasons by showing that the reasons are merely pretext for unlawful retaliation. Id.
(citing Flowers v. WestRock Servs., Inc., 979 F.3d 1127, 1132–33 (6th Cir. 2020)).

Because I agree with the district court that Doe failed to establish a prima facie case of
retaliation, I focus only on the prima facie case, specifically the third and fourth prongs.17

IV.

a. Adverse Action

The majority categorizes Doe’s adverse-action allegations in four ways: (1) the delay in
scheduling the fourth hearing; (2) the failure to adequately prosecute JD; (3) the hearing panel
and appeals board decisions; and (4) Chief Monroe’s alleged interference with the Title IX
proceeding. I will take each in turn and explain that, whether viewed in combination or in
isolation, no reasonable juror would conclude that Doe has a genuine issue of material fact
related to educational adverse action.

In the Title IX context, we define “adverse action” as something that would dissuade a
reasonable person from engaging in protected activity related to education. Gordon v. Traverse
City Area Pub. Sch., 686 Fed. App’x 315, 320 (6th Cir. 2017); see also Burlington North &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Goldblum, 62 F.4th at 251; Bose, 947 F.3d at
987 (explaining that expulsion can be educational adverse action). None of the claimed adverse
actions in this case would dissuade a reasonable person from engaging in UK’s Title IX

17The parties do not dispute the first two elements of the prima facie case for Title IX retaliation: protected
activity and knowledge. Doe engaged in two protected activities which UK knew of: (1) filing her federal lawsuit
against UK and (2) “persever[ing] to a fourth sexual misconduct hearing.”
No. 22-6012 Doe v. Univ. of Ky. Page 41

procedure or from filing a federal Title IX suit. We should not drum up adverse actions that do
not exist.18

i. The Delay in Scheduling the Fourth Hearing

Doe’s evidence demonstrates that Doe herself caused or contributed to the delayed fourth
hearing, and the evidence that she claims demonstrates retaliation is evidence of mistake at most.
After the third hearing decision was reversed on June 9, 2015, Dr. Simpson reached out to Doe
on July 29 to schedule a fourth hearing with the “goal . . . to schedule this hearing as soon as we
can.” Doc. 140-2, PageID#1995. Doe responded by requesting that “the process be suspended
unless/until [JD] attempts to return to UK.” Id. at 1996. Dr. Simpson and Doe exchanged a few
more emails, resulting in Dr. Simpson’s sending Doe an online, confidential poll to help
determine Doe’s August-availability. But Doe did not respond to that poll. Instead, her next
communication relayed that she had retained new counsel and that she would need to check on
her attorney’s availability before proceeding with scheduling a fourth hearing.

Next, Doe’s attorney sent a “Cease Direct Contact” letter stating that “we certainly object
to the fourth hearing” but will participate to the extent necessary to find JD responsible. Doc.
140-3, PageID#2001. Then, when Doe filed this lawsuit on October 1, 2015, she requested vague
injunctive relief “to be determined at trial.” Doc. 1, PageID#11. Around the same time, another
lawsuit was filed against UK—that one alleging that accuseds are not afforded enough due
process. Doc. 8-1, pageID#116. Faced with competing lawsuits, UK was stuck in a classic
“catch-22” scenario. And UK was left wondering if its Title IX procedure, itself, was
constitutionally sufficient.19

18The district court discussed UK’s proffered reasons as to why their actions were not retaliatory through
the UAB’s 23-page decision on Doe’s appeal of the fourth hearing. But it did so in dicta. The ultimate holding is
that Doe did not establish a prima facie case of Title IX retaliation because she did not adequately plead an adverse
action. While erring on the education-related aspect, the district court still analyzed the prima facie case and what
was “adverse” to Doe and how those adverse actions were not so adverse as to dissuade a reasonable person from
engaging in protected activity. In more dicta, the district court found no causal connection (the last prong of the
prima facie case) between Doe’s alleged adverse acts and protected activity.
19The majority claims that UK forfeited any argument based on the undisputed fact that UK faced a
competing lawsuit at the time of Doe’s lawsuit, but the record reflects otherwise. UK filed a motion to consolidate
the competing cases, see Doc. 8, PageID#114, and explained that, although factually distinct, the “complaints
involve[d] common issues of law, namely, does [UK’s] policy and procedure in the student disciplinary process
No. 22-6012 Doe v. Univ. of Ky. Page 42

Only in response to UK’s motion to dismiss did Doe explain what she was requesting as
injunctive relief, stating that she did not seek to enjoin UK’s Title IX hearing process. The day
after Doe responded, UK emailed Doe’s attorney requesting to schedule the fourth hearing.
Doe’s attorney told UK that after she contacted Doe’s mental health provider, she would have an
answer on Doe’s availability. She also requested to be updated if JD’s counsel provided UK
with potential dates. Neither party followed up.

To be sure, the district court admonished UK for not scheduling the fourth hearing, but
the district court did so with general disdain for UK’s Title IX process, lamenting that those
accused of sexual assault were consistently denied adequate due process. Doc. 12, PageID#154–
55, 154 n.2, 156. The district court also highlighted that UK had delayed the process before Doe
filed this lawsuit, id., during a time when Doe “certainly objected to [having] the fourth hearing.”
Doc. 140-3, PageID#2001. Clearly, then, UK’s pre-lawsuit delay could not have been in
retaliation to the lawsuit, and Doe herself objected to even having the fourth hearing.

After the admonishment, UK attempted to schedule the fourth hearing some time
between September 15 and October 15, 2016. The hearing was scheduled for October 19, 2016,
based on both Doe’s and JD’s counsel’s schedules. But, on the day of the fourth hearing, it was
rescheduled given the due process concerns that Professor Lawson had regarding the use of
Doe’s recorded testimony and what impact the recorded testimony might have on the objectivity
of the hearing panel. Professor Lawson had previously granted Doe’s request to use her recorded
testimony from the third hearing in lieu of live testimony. To prevent another appeal (and
potential reversal) on due process grounds, Professor Lawson decided that a continuance was
appropriate. The fourth hearing was ultimately held on January 10, 2017.20 This is not evidence
of retaliatory adverse action.

comply with constitutional due process guarantees.” Doc. 8-1, PageID#119. UK explained that it was “squarely in
the middle of competing student interests and harmonizing [its] duties under the Constitution, Title IX[,] and the
Department of Education directives.” Id. This motion was denied as moot after a similar motion in the competing
case was also denied. Doc. 11, PageID#147. Although absent from its motion for summary judgment, this
argument appears below, meaning that the argument was not born on appeal. Therefore, it was not forfeited.
20The fourth hearing was rescheduled in November, as well. Like her initial complaint, in which Doe
claimed that the fourth hearing was delayed because of JD’s community college football schedule, Doc. 1,
PageID#9, Doe’s operative complaint implied that the fourth hearing’s November-rescheduling was also a result of
No. 22-6012 Doe v. Univ. of Ky. Page 43

Once more, we must look to “the record taken as a whole,” Matsushita Elec., 475 U.S. at
587, and the entirety of the record demonstrates that this delay can hardly be viewed as
retaliatory. At almost every step, Doe herself contributed to it.21 At most, this delay was
mistaken, which should not amount to adverse action.

ii. The Failure to Adequately Prosecute JD

As I read the majority opinion, the majority inserts itself as another level of appellate
review within UK’s Title IX process, employing a sort-of “best practices” standard and
reviewing how UK presented Doe’s case at the fourth hearing de novo. “A school is an
academic institution, not a courtroom or administrative hearing room.” Bd. of Curators of Univ.
of Missouri, 435 U.S. at 88. Therefore, school disciplinary proceedings do not require the
formalities of a courtroom. Flaim, 418 F.3d at 635. And we give deference to how a school
conducts its disciplinary hearings, Davis, 526 U.S. at 648–49; New Jersey, 469 U.S. at 342–43
n.9, especially when the record reflects that the parties involved were afforded due process.
Goss, 419 U.S. at 580; Univ. of Cincinnati, 872 F.3d at 399.

To the majority, according to this new best-practices standard and a de novo review of
the fourth hearing, Dean Kerhwald’s representation of Doe at the fourth hearing was retaliatory.
Pointing to the fact that he did not object at all during the fourth hearing, the majority takes
Doe’s view that Dean Kerhwald must have been retaliating against her.

JD’s community college football schedule. Doc. 57, PageID#371. Doe seems to have abandoned this bald and
conclusory allegation on appeal. In turn, neither Doe nor the majority takes issue with the November rescheduling.
But why not? If this delay was retaliatory, then the November-rescheduling ought to count as evidence of the
supposedly retaliatory delay. Every other possible piece of evidence for the delay was construed that way. It is
telling that neither Doe nor the majority views the November-rescheduling as retaliatory.
21This fact renders inapposite Watford v. Jefferson County Public Schools, 870 F.3d 448 (6th Cir. 2017).
There, in the Title VII context, a collective bargaining agreement (CBA) stipulated that grievance proceedings
would be held in abeyance upon filing an EEOC charge. Id. at 453. In turn, employees were left with the choice of
filing a grievance or an EEOC charge because of the CBA. The employees themselves did not contribute to the
adverse action. However, the employees’ union contributed to it, and we said that they could be liable under Title
VII. Id. The Watford-panel further explained that employees were faced “with a false binary,” choosing between
filing a speedy, extrajudicial grievance and filing an EEOC charge. Id. at 454. Requiring this false binary was an
adverse action. Id. at 454–55. Doe was faced with no such choice. When presented with opportunities to schedule
the fourth hearing earlier than January 10, 2017, the record clearly reflects that Doe herself contributed to the very
delay that she claims was retaliatory.
No. 22-6012 Doe v. Univ. of Ky. Page 44

In support of this argument, Doe cites to a case from the U.S. District Court for the
District of Maryland. There, Morgan State University officials did not issue a second no-contact
order against the assailant, which led to further harassment of the accuser. Doe v. Morgan State
Univ., 544 F. Supp. 3d 563, 573, 586 (D. Md. 2021). That inaction, according to the Maryland
district court, could be considered an adverse action by a jury because it led to further
harassment. Id. at 586. Here, the alleged inaction did not put Doe in harm’s way, and it was not
related to giving the accused access to Doe. Dean Kerhwald, while presenting the case that JD
violated UK policy, exercised discretion in choosing how to represent that JD had committed a
violation of that policy. See Tinker, 393 U.S. at 507.22 Based on this record, the fact that Dean
Kerhwald did not object during the fourth hearing cannot be considered retaliatory adverse
action because his entire representation of Doe would not dissuade a reasonable person from
engaging in the Title IX process at UK or from filing a federal Title IX action.

Doe and the majority also take issue with the facts that Officer Sizemore did not testify at
the fourth hearing and that the parties stipulated to Officer Scott’s testimony. A few things are
relevant here. Officer Sizemore testified at one of the other three hearings, Doc. 140-1,
PageID#1985, meaning that she testified in person only once throughout this entire process.
And, by her own account, everything that she knew, factually, was contained in her police report
which was read into the fourth hearing’s record. While Sizemore could have testified to her
opinions about the matter beyond her police report, JD also forfeited the opportunity to cross-
22Dean Kerhwald opened his argument in support of Doe by explaining that the case will come down to
whether the panel views the sex acts between Doe and JD as consensual or as sexual assault. Doc. 131-22,
PageID#1712. Then, per Doe’s attorney’s request, he directed the hearing officer to play Doe’s recorded testimony
from the third hearing. Id. at 1714–16. After Doe was cross-examined, Dean Kerhwald was given the opportunity
to redirect with Doe. Id. at 1722. He did so, directing Doe to point out inconsistencies in JD’s version of events and
to highlight the allegedly forceful nature of Doe’s and JD’s sexual encounter. Id. Dean Kerhwald then questioned
Doe’s witness on direct examination, allowing the witness to share her version of what she saw her roommate (Doe)
go through on the day in question. Id. at 1722–24. On redirect examination of Doe’s witness, Kerhwald introduced
evidence of Doe’s trauma through a suicide note by having the hearing officer read Officer Sizemore’s police report
into the record. Id. at 1726–27. In his closing argument, Dean Kerhwald argued that JD initiated contact with Doe
and that the police report, the texts, the videos, and the pictures support Doe’s version of events. Id. at 1745. He
argued that Doe’s demeanor on video was consistent with her claim that the sexual encounter was not consensual
and that her version of events was more consistent than JD’s. Id. at 1746. Kerhwald downplayed arguments by
JD’s attorney. Id. at 1747. He stated that Doe did not work herself up after talking with her roommate and mother,
but, instead, Doe immediately came to the conclusion that this was not consensual. Id. at 1746–47. And he argued
that evidence of consent in the past is not evidence of consent to the immediate situation. Id. at 1746. He closed by
arguing that the entirety of the evidence, including the demarcations and contusions on Doe’s body along with her
suicide note, demonstrate that this sexual encounter was not consensual. Id. at 1748.
No. 22-6012 Doe v. Univ. of Ky. Page 45

examine Sizemore about her opinions in her absence. Her absence was neither adverse nor
retaliatory.

To the majority’s concern that Officer Sizemore’s presence at the fourth hearing was
requested with inadequate notice, UK’s Title IX Office was sloppy. But that does not mean that
the late request was retaliatory. The record reflects that the presence of both officer-witnesses
was requested on the same day, Doc. 140-21, PageID#2108; Doc. 140-6, PageID#2033, Officer
Sizemore’s by Doe, and Officer Scott’s by JD. The Title IX Office contacted the UK police
department on Friday, January 6, 2017, asking Captain Webb if both officers could attend the
hearing. Captain Webb was out of the office that day and did not respond until Monday. He
responded that both officers were unavailable. Chief Monroe made accommodations for Officer
Scott to attend, allowing Scott to skip training, and Monroe confirmed that Sizemore had
childcare issues on the day of the hearing so that she could not attend. Monroe’s actions aside—
more on that later—this cannot be deemed retaliatory action. The Title IX Office should have
requested the witnesses earlier, but the requests were treated identically.23 That is not evidence
of retaliatory adverse action.

As to Officer Scott’s stipulated testimony, the fact that it was read into the record is not
evidence of retaliatory action. He was a witness called by JD. By Doe’s and the majority’s
reasoning on this point, the fact that UK allowed JD to defend himself and call witnesses at the
fourth hearing means that UK must have been retaliating against Doe.

In its response to Doe’s appeal of the fourth hearing, UK called Officer Scott’s testimony
“inconsequential and non-substantive,” Doc. 140-39, PageID#2210, but the majority claims that
Officer Scott’s stipulated testimony bolstered JD’s credibility. The stipulation said:

Officer Scott, if he was called as a witness today, would testify that . . . [JD] had
called him that afternoon after receiving these text messages and had told him that
these allegations had been made against him. . . . Officer Scott would testify that
he told [JD] “I’ll make a phone call to the police department. You need to go over
there and tell them your version of what happened.” So he advised him to go
over, and I believe Officer Scott called the police department and told them that
he was coming. Based on that, [JD] went directly to the police department.

23Per UK Title IX policy, the request could have been made up to six business days before the hearing.
No. 22-6012 Doe v. Univ. of Ky. Page 46

Doc. 131-22, PageID#1739. Obviously, this stipulated testimony does nothing to bolster JD’s
credibility. The testimony corroborates that JD called Officer Scott after the incident, but it does
not get at whether the hearing panel would believe JD over Doe as to whether the sexual
encounter was consensual. And, again, this was testimony that JD requested in mounting a
defense.

Next, both Doe and the majority take issue with UK’s position during Doe’s appeal of the
fourth hearing. But both fail to recognize that UK’s role changes on appeal. After a hearing
panel’s decision is appealed, the student code of conduct demonstrates that UK no longer acts as
the prosecutor of the case. Doc. 140-11, PageID#2073; see also Doc. 140-5, PageID#2018–19.24

Compare UK’s role at Title IX hearings versus on appeal. At the Title IX hearing, UK
assigns a representative to “present the case on behalf of the University.” Doc. 140-11,
PageID#2071. “The rights of this representative shall be [the] same as those of the complaining
witness.” Id. Whereas, on appeal, the student code of conduct does not mention a UK
representative who takes up the case for a student appeal

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10500502. Public record. Not legal advice.