# Doe v. Board of Trustees of Northern Illinois University

> District Court, N.D. Illinois · September 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10645851

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** September 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 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/10645851

## How later opinions describe it (automated extraction)

- holding that claims for damages against NIU were barred by the Eleventh Amendment because NIU is an Illinois state university
- finding that the university’s refusal to provide the plaintiff with relevant documents was “divorced from gender” since he did not allege “that females accused of sexual assault were allowed to review materials or that only female victims were allowed to review them”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN DOE, )
)
Plaintiff, )
) No. 17-cv-07991
v. )
) Judge Andrea R. Wood
THE BOARD OF TRUSTEES OF )
NORTHERN ILLINOIS UNIVERSITY, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Plaintiff, proceeding pseudonymously as John Doe, is a former student at Northern
Illinois University (“NIU”) who was accused of sexually assaulting a woman in April 2016.
Based on the accusation, NIU initiated an investigation of Plaintiff and, in the interim, imposed
certain restrictions on his on-campus activities. In the midst of proceedings related to the sexual
assault accusation, NIU notified Plaintiff that he would be suspended while it investigated a
second misconduct allegation against him. Ultimately, NIU deemed Plaintiff responsible for
sexual assault. However, Plaintiff contends that NIU’s investigation and adjudication of the
sexual assault accusation was tilted against him as a man being accused of rape by a woman.
And when he resisted that unlawful bias, NIU purportedly retaliated by using a baseless charge
of misconduct as grounds for suspending him. Plaintiff therefore brought the present action
against NIU, through its Board of Trustees, setting forth claims of sex discrimination and
retaliation under Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681
et seq., and breach of contract, and seeking a declaratory judgment. Now, NIU moves to dismiss
Plaintiff’s First Amended Complaint (“FAC”) pursuant to Federal Rule of Civil Procedure
12(b)(6). (Dkt. No. 71.) For the reasons that follow, NIU’s motion is granted.
BACKGROUND
For the purposes of the motion to dismiss, the Court accepts all well-pleaded facts in the
FAC as true and views those facts in the light most favorable to Plaintiff as the non-moving
party. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). The FAC
alleges as follows.

Plaintiff was a student at NIU, a public university in Illinois that accepts federal financial
assistance. (FAC ¶¶ 1, 7 Dkt. No. 66.) Even before the alleged sexual assault giving rise to this
action, Plaintiff had a contentious history with NIU’s administration. (Id. ¶ 10.) Specifically,
Plaintiff was a member of a fraternity at NIU and, in 2012, a member of Plaintiff’s pledge class
passed away after drinking excessively at a hazing event. (Id.) While Plaintiff was not
responsible for the hazing that led to his pledge brother’s death, his fraternity received significant
scrutiny from NIU afterwards. (Id. ¶¶ 11, 14–16.) Thus, when Plaintiff took over as president of
his fraternity, he dealt with numerous accusatory communications from NIU’s administration
concerning allegations of wrongdoing made against his fraternity and its brothers. (Id. ¶¶ 14–15.)
According to Plaintiff, NIU’s scrutiny of his fraternity and other fraternities was unfounded, and

sororities were not treated similarly. (Id. ¶ 17.)
The present litigation arises out of a sexual encounter between Plaintiff and a woman
who is identified by the pseudonym Jane Roe. On April 16, 2016, Roe, who was not enrolled as a
student at NIU, accompanied a friend to an event hosted by NIU at a local bar. (Id. ¶¶ 1, 20–21.)
Prior to the event, Roe and her friend had already been drinking at an NIU fraternity house. (Id.
¶¶ 22–23.) Then, at the event itself, Roe recalled drinking about five vodka tonics. (Id. ¶ 25.) At
about 11:30 p.m., Roe met Plaintiff, who had also been drinking alcohol. (Id. ¶¶ 26–28.) While at
the bar, Plaintiff and Roe kissed consensually. (Id. ¶ 26.) Shortly thereafter, the two took a bus
back to NIU’s campus and, during the ride, they again shared a consensual kiss. (Id. ¶ 29.)
Once back on campus, Plaintiff took Roe and two other friends to his room at his
fraternity house to continue drinking. (Id. ¶ 30.) Eventually, Plaintiff and Roe were left alone in
Plaintiff’s room, and the two resumed consensually kissing each other. (Id. ¶¶ 31–32.)
Ultimately, the encounter resulted in Plaintiff having sexual intercourse with Roe. (Id. ¶ 33.)
Plaintiff believed the sexual intercourse was consensual and claims that he never received any

indication otherwise from Roe. (Id. ¶¶ 33–35.) Nonetheless, after leaving Plaintiff’s fraternity
house in the early morning hours of April 17, 2016, Roe told some friends about the encounter
and those friends told Roe that it sounded like Plaintiff had raped her. (Id. ¶ 36.) Initially, Roe
declined to go to the hospital for a rape kit examination. (Id. ¶ 37.) However, that evening, Roe
went with her mom to a police station where she reported being sexually assaulted by Plaintiff.
(Id. ¶ 38.)
In that initial April 17, 2016 police report, Roe claimed, among other things, that she had
rebuffed Plaintiff when he attempted to kiss her at the bar and again refused Plaintiff’s attempts
to kiss her when they were alone in his room, and that Plaintiff forced himself on her when she
was on her back. (Id. ¶ 38.) Yet, during a follow-up interview with the police on April 20, 2016,1

Roe acknowledged consensually kissing Plaintiff multiple times before they had sex. (Id. ¶ 39.)
Further, Roe reported that, in Plaintiff’s bedroom, she kissed Plaintiff while he was in his
underwear and she was straddled on top of him wearing no underwear. (Id.) Finally, she claimed
that sexual penetration occurred first while she was on top of him and then again while she was
on all-fours in the “doggy style” position—but not on her back, as initially reported. (Id.) On
May 9, 2016, Plaintiff spoke with the police. (Id. ¶ 41.) During the interview, Plaintiff admitted

1 Although the FAC alleges that Roe’s second interview with the police occurred on May 12, 2016, the
exhibits attached to the FAC reveal that the interview actually occurred on April 20, 2016. (FAC, Ex. B,
Dkt. No. 66.)
to having sex with Roe but insisted that it was consensual. (Id.) At the same time, Plaintiff was
unable to recall many details about the encounter because of the drinking that had occurred
beforehand. (Id.)
About two weeks after her second police report, Roe was contacted by Sarah Adamski,
NIU’s Associate Director of Investigations, Affirmative Action and Equity Compliance. (Id.

¶ 40.) Roe told Adamski that the police advised her not to speak with NIU until the police had
completed their investigation. (Id.) When Adamski again reached out to Roe on June 6, 2016 and
June 30, 2016, Roe stated that she did not wish to file a Title IX claim against Plaintiff. (Id.
¶ 42.) Meanwhile, local prosecutors filed criminal charges against Plaintiff based on Roe’s
sexual assault accusation. (Id. ¶ 44.)
By July 1, 2016, Roe had changed her mind and opted to proceed with the filing of a Title
IX complaint against Plaintiff. (Id. ¶ 43.) Shortly thereafter, Roe contacted Adamski to insist that
Plaintiff immediately be barred from attending fraternity functions. (Id. ¶ 55.) Although Adamski
initially responded to Roe’s demand by stating that any punishment would have to wait until a

finding of Plaintiff’s responsibility, on July 15, 2016, NIU imposed interim measures against
Plaintiff while the Title IX investigation remained ongoing. (Id. ¶¶ 54–55.) Those measures
included a prohibition on Plaintiff’s participation in all student organizations and extracurricular
activities, and his removal from his student leadership positions. (Id. ¶ 54.) NIU subsequently
added an additional interim measure banning Plaintiff from residing in school residence halls or
buildings. (Id. ¶¶ 56–57.) On August 1, 2016, Roe independently decided to bring her accusation
against Plaintiff to the attention of the broader NIU community by sending an email to NIU
administrators, faculty, alumni, and staff. (Id. ¶¶ 45–46.) Her email identified Plaintiff by first
and last name as her rapist. (Id. ¶ 45.) NIU did not publicly respond to Roe’s email, nor did it
inform recipients that the account described in the email was the subject of an official
investigation. (Id. ¶ 47.)
Plaintiff met with Adamski on August 4, 2016 and was given the opportunity to provide
his side of the story. (Id. ¶ 51.) Due to the pending criminal charges, Plaintiff declined to speak
about his encounter with Roe and asserted his Fifth Amendment rights. (Id.) Yet Adamski

disagreed that the criminal proceeding was a basis for delaying the Title IX process, and she
informed Plaintiff that she would proceed with her investigation notwithstanding his inability to
participate fully. (Id. ¶¶ 52–53.) Adamski asked Plaintiff whether he would like to adopt the
statement he provided to the police on May 9, 2016 regarding Roe’s accusations in connection
with the Title IX investigation, but Plaintiff declined to do so. (Id. ¶ 60.)
On August 16, 2016, Adamski issued her preliminary report of her Title IX investigation
(“Preliminary Report”). (Id. ¶ 60.) In the Preliminary Report, Adamski detailed the witness
statements she had obtained as part of her investigation. (Id.) To present Plaintiff’s position, the
Preliminary Report relied upon Plaintiff’s May 9, 2016 statement to the police, notwithstanding

his refusal to adopt it for his defense to the Title IX claim. (Id.) Plaintiff then provided his
rebuttal to the Preliminary Report, in which he argued that there was a lack of evidence against
him and highlighted the inconsistencies between the two statements that Roe gave to the police.
(Id. ¶ 62.) Adamski, however, was unpersuaded, and in her final report issued on September 14,
2016 (“Final Report”), she concluded that Plaintiff was responsible for sexually assaulting Roe.
(Id. ¶ 66.) While the Final Report acknowledged Roe’s inconsistent statements to the police, it
nonetheless adopted as Roe’s official story her second statement from April 20, 2016. (Id. ¶ 68.)
At no point prior to issuing the Final Report did Adamski meet with Roe in person; their
communications occurred only through phone calls and emails. (Id. ¶ 69.)
Plaintiff quickly appealed the Final Report’s finding that he was responsible for sexual
assault. (Id. ¶ 72.) While his appeal was pending, Plaintiff received a new notice alleging his
violation of school rules on September 26, 2016. (Id. ¶ 98.) In particular, the notice informed
Plaintiff that NIU had received a report that Plaintiff had violated the Student Code of Conduct
by using cocaine at his fraternity house on September 24, 2016, while the interim measures

banning him from being present in the fraternity house were in place. (Id. ¶¶ 97–98.) Attached to
the notice was an incident report, which revealed that the accusation originated from an
unidentified woman who heard about Plaintiff’s illicit conduct from a friend and told her ex-
boyfriend about it, and the ex-boyfriend then conveyed the account to a fraternity advisor who
ultimately reported it to NIU’s administration. (Id. ¶ 99.) Notwithstanding this attenuated
sourcing, NIU temporarily suspended Plaintiff and banned him from campus pending its
investigation of the second allegation. (Id. ¶ 101.) As a result, Plaintiff was unable to attend class
beginning on September 27, 2016. (Id. ¶ 104.) On October 14, 2016, with the second
investigation ongoing such that Plaintiff’s suspension remained in effect, Plaintiff elected to

withdraw from NIU to avoid further damage to his academic record from incomplete or failing
grades. (Id. ¶ 124.)
After Plaintiff’s appeal of the finding of his responsibility for sexual assault was denied, a
sanctions hearing was scheduled for October 28, 2016. (Id. ¶¶ 73–75.) Roe attended the
sanctions hearing via videoconference. (Id. ¶ 76.) In her testimony, Roe failed to mention that
she had been drinking heavily on the night of her encounter with Plaintiff. (Id. ¶ 78.) Plaintiff
was not permitted to question Roe directly and instead was required to submit a list of questions
to the presiding hearing officer who would then decide which questions to ask. (Id. ¶ 79.) Of the
38 questions that Plaintiff submitted, the hearing officer selected only 6 to ask Roe. (Id. ¶ 80.)
Adamski also testified at the hearing. (Id. ¶ 77.) During her testimony, Adamski conceded that
she did not produce to Plaintiff or his counsel all the text messages she exchanged with Roe or
his counsel, despite relying on those text messages in connection with her Final Report. (Id.
¶ 82.) In addition, Adamski acknowledged that there were inconsistencies in Roe’s two
statements to the police but explained that she found Roe’s second statement to be believable.

(Id. ¶ 85.) On the other hand, Adamski testified that she did not find Plaintiff’s statement to the
police believable. (Id. ¶ 86.)
At the conclusion of the sanctions hearing, the hearing officer ruled that Plaintiff should
be expelled. (Id. ¶ 91.) Plaintiff’s subsequent appeal of the sanctions ruling was denied. (Id.
¶ 95.) On November 4, 2016, Plaintiff received notice of the dismissal of the allegation of his
violation of the Student Code of Conduct due to on-campus cocaine use. (Id. ¶ 125.) Ultimately,
a jury trial was held on the criminal charges against Plaintiff for his alleged sexual assault of
Roe, and the jury returned a verdict of not guilty on December 1, 2022. (Id. ¶ 96.)
DISCUSSION
To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
pleading standard does not necessarily require a complaint to contain detailed factual
allegations. Twombly, 550 U.S. at 555. Rather, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Adams v. City of Indianapolis, 742 F.3d 720, 728
(7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
Plaintiff’s FAC asserts two Title IX claims against NIU—one for sex discrimination and
one for retaliation. In addition, the FAC also requests a declaratory judgment reversing NIU’s
Title IX findings from the Final Report and the associated sanctions. NIU moves to dismiss all
claims.2
I. Title IX—Sex Discrimination
Title IX provides that “[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under

any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
“The Supreme Court has interpreted Title IX to provide individual plaintiffs with an implied
private right of action to pursue claims of gender discrimination in federal court and has
recognized a number of claims that constitute discrimination.” Doe v. Columbia Coll. Chi., 933
F.3d 849, 854 (7th Cir. 2019) (citing Cannon v. Univ. of Chi., 441 U.S. 677, 689 (1979)). To
state a sex3 discrimination claim under Title IX, a plaintiff must allege “(1) the educational
institution received federal funding, (2) plaintiff was excluded from participation in or denied the
benefits of an educational program, and (3) the educational institution in question discriminated
against plaintiff based on gender.” Id. Here, NIU does not dispute that Plaintiff has pleaded the
first two elements. It focuses its arguments for dismissal on its contention that Plaintiff has failed

to allege facts from which it can be reasonably inferred that he was discriminated against based
on his sex.
According to Plaintiff, NIU approached its investigation and prosecution of the sexual
assault accusation against him with an anti-male bias. In the context of an educational

2 The FAC also asserts a breach of contract claim against NIU. After NIU moved to dismiss that claim on
Eleventh Amendment immunity grounds, Plaintiff conceded that the breach of contract claim was barred
given that NIU is a public university. See Osteen v. Henley, 13 F.3d 221, 223 (7th Cir. 1993) (holding that
claims for damages against NIU were barred by the Eleventh Amendment because NIU is an Illinois state
university). Accordingly, the breach of contract claim is dismissed with prejudice.
3 Title IX caselaw tends to use sex and gender interchangeably.
institution’s handling of disciplinary proceedings against students, the Seventh Circuit has
eschewed the use of “formal doctrinal tests” that some Circuits have employed4 to ferret out bias,
and instead asks simply whether “the alleged facts, if true, raise a plausible inference that the
university discriminated against [the plaintiff] ‘on the basis of sex.’” Doe v. Purdue Univ., 928
F.3d 652, 667–68 (7th Cir. 2019).

First, Plaintiff contends that NIU has a systemic anti-male bias in evaluating Title IX
complaints alleging sexual misconduct. He argues that such inherent bias is a product of a “Dear
Colleague” letter regarding Title IX enforcement issued by the U.S. Department of Education’s
Office of Civil Rights (“OCR”). (FAC ¶ 139.) In that letter, the OCR set forth guidance to NIU
and other universities for investigating and evaluating Title IX complaints regarding sexual
misconduct, which Plaintiff contends disadvantages male students by favoring female accusers.
(Id. ¶¶ 139–41.) In addition, the Dear Colleague letter threatened schools with a loss of federal
funding. (Id. ¶ 140.) As the Seventh Circuit has explained, that threat sent a message that “a
school’s federal funding was at risk if it could not show that it was vigorously investigating and

punishing sexual misconduct.” Purdue, 928 F.3d at 668.
To further allege NIU’s systemic anti-male bias, Plaintiff points to its membership in
Pact5, a coalition of universities and colleges that have pledged to fight sexual assault on their
campuses. (FAC ¶ 128.) In connection with its membership, NIU submitted two films for

4 In his opposition brief, Plaintiff argues that this Court should evaluate the sufficiency of his allegations
under the two-category framework employed in the Second Circuit. Specifically, the Second Circuit has
explained that claims “attacking a university proceeding on the grounds of gender bias can be expected to
fall generally within two categories.” Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). First is the
“erroneous outcome” category, where the plaintiff claims that he “was innocent and wrongly found to
have committed an offense.” Id. Second is the “selective enforcement” category, where the claim is that,
“regardless of the student’s guilt or innocence, the severity of the penalty and/or the decision to initiate
the proceeding was affected by the student’s gender.” Id. The Seventh Circuit has acknowledged the
Second Circuit’s framework and its use in other Circuits but nonetheless has declined “to superimpose
doctrinal tests” on the Title IX statute. Doe v. Purdue Univ., 928 F.3d 652, 667 (7th Cir. 2019).
screening at a Pact5 film festival, both of which portrayed only men as perpetrators of sexual
assault and stereotyped men as aggressors in sexual encounters with women. (Id. ¶¶ 129–31.)
Similarly, Plaintiff highlights NIU’s promotion of a “Rape Aggression Defense” program, which
taught women how to defend themselves against men’s sexual aggression while teaching men
how to avoid that behavior. (Id. ¶¶ 132–33.)

Plaintiff is not the first male student to allege that the OCR’s Dear Colleague letter
“caused universities to take an overzealous approach to investigating and punishing sexual
misconduct among students and to implement policies that discriminated against men.” Gash v.
Rosalind Franklin Univ., 691 F. Supp. 3d 858, 862 (N.D. Ill. 2023) (collecting cases). And the
Seventh Circuit has held that the letter is relevant in providing a backdrop about why a university
“might have been motivated to discriminate against males accused of sexual assault.” Purdue,
928 F.3d at 669; see also Doe v. Univ. of S. Ind., 43 F.4th 784, 792 (7th Cir. 2022) (“Evidence of
public pressure on a university can be relevant in assessing sex discrimination claims under Title
IX.”). Likewise, a court may consider a school’s promotion of films and other events raising

awareness of sexual assault on campus. Columbia Coll., 933 F.3d at 855. However, while such
background allegations contribute to the plausibility of a sex discrimination claim, they do not,
by themselves, suffice to state a claim. Id. Rather, a plaintiff must also “allege facts raising the
inference that [the university] acted at least partly on the basis of sex in his particular case.”
Purdue, 928 F.3d at 669. Put another way, a plaintiff must “allege [a] particularized ‘something
more’” concerning the facts surrounding his case to survive a motion to dismiss. Columbia Coll.,
933 F.3d at 855–56.
Often, the “something more” that makes a sex discrimination claim plausible will be
procedural irregularities in the disciplinary process from which an anti-male bias can be inferred.
Univ. of S. Ind., 43 F.4th at 793. But it is not enough for a plaintiff to “merely identify[] mistakes
and imperfections in the process.” Id. What is required are allegations supporting a reasonable
inference “that the defendant deviated from proper procedures not because of human error but by
design, to achieve covertly what it could not do openly: discriminate against the plaintiff on the
basis of sex.” Id. Under this analysis, “[a]s the number of irregularities increases, or the

irregularities become more serious, it begins to look less likely that the errors were made due to
benign reasons.” Id. (internal quotation marks omitted). At the same time, a court should be
mindful that errors demonstrating only a “‘pro-victim bias’ . . . do[] not support a claim for sex
discrimination because ‘both women and men can be victims of sexual assault.’” Gash, 691 F.
Supp. 3d at 864 (quoting Johnson v. Marian Univ., 829 F. App’x 731, 733 (7th Cir. 2020)).
Although Plaintiff asserts that NIU’s investigation and adjudication of the Title IX
complaint against him was rife with procedural errors, upon careful examination, the Court
concludes that none of the purported errors that Plaintiff identifies represent unambiguous
deviations from NIU’s written procedures for Title IX proceedings. First, Plaintiff faults NIU for

refusing to delay proceedings during the pendency of his criminal charges, thereby putting him
to the unpalatable choice between giving up his Fifth Amendment rights or being precluded from
effectively defending himself in the Title IX investigation. Regardless of the fairness of
presenting Plaintiff with such a choice, NIU’s Title IX policies and procedures make clear that
“[a]ny investigation will proceed independent of any criminal or other legal proceedings.” (FAC,
Ex. J, Title IX Policies and Procedures at 14, Dkt. No. 66.) Notably, Plaintiff’s criminal
prosecution was not resolved until his acquittal on December 1, 2022, nearly six years after he
would have graduated. Thus, NIU’s policy of proceeding with Title IX investigations
notwithstanding the pendency of criminal charges would appear to make good sense. Otherwise,
NIU would be unable to discipline many students facing criminal charges while they were still
under its jurisdiction.
After Plaintiff invoked the Fifth Amendment and declined to give NIU a statement, he
contends that Adamski improperly adopted Plaintiff’s statement to the police over his objection.
Despite Plaintiff’s assertion of impropriety, he fails to point to any policy or procedure that

Adamski violated by adopting his statement. On the contrary, NIU’s policies and procedures
make clear that police reports accusing students of sexual misconduct will be reported to the
Title IX coordinator. (Id. at 9–10.) And Plaintiff did, in fact, provide a statement to the police
(presumably, after having been advised of his Fifth Amendment rights). The Court sees no
reason why Adamski was required to ignore that statement, especially once Plaintiff declined to
submit a separate statement for purposes of the Title IX investigation. Further, Plaintiff did avail
himself of the opportunity to submit his rebuttal to the Preliminary Report, which he used to
draw attention to the inconsistencies in Roe’s two statements to the police. Contrary to Plaintiff’s
claim that NIU made no effort to resolve the inconsistencies, the Final Report explained its

decision to credit Roe’s second statement. It noted that Roe’s second statement was “consistent
with the recalled details, albeit limited, that [Plaintiff] provided about the night in question” and
was “consistent with a version of events that [Roe] shared with friends shortly after the incident
occurred.” (FAC, Ex. F, Final Report at 2, Dkt. No. 66.)
Relatedly, Plaintiff claims that NIU hindered his defense at the sanctions hearing by
refusing to allow him to cross-examine Roe and asking her only 6 of the 38 questions he had
submitted. However, nowhere in NIU’s Title IX policies and procedures is the accused given a
right to cross-examine his accuser—the accuser is not even required to attend the hearing. (Title
IX Policies and Procedures at 17.) Moreover, the policies and procedures expressly allow only
the hearing officer to ask questions at a sanctions hearing. (Id.) There is no additional
requirement that the hearing officer ask any or all questions submitted by the accused.
Plaintiff also argues that NIU’s anti-male bias can be inferred from its rush to impose
punitive measures against him before even the Preliminary Report had been issued. Once again,
NIU’s policies and procedures expressly authorized those interim measures. NIU’s Title IX

policies and procedures make clear that NIU “reserves the right to take whatever interim
measures deemed necessary to protect the rights and personal safety of the Claimant,
Respondent, and/or community members,” including, but not limited to, “modification of class
schedules . . . or living arrangements” and “interim suspension . . . pending an investigation.” (Id.
at 14.) Next, Plaintiff believes that NIU’s bias is evidenced by its failure to respond to Roe’s
email publicly accusing Plaintiff of sexual assault. But he points to no policy or procedure
addressing how NIU should handle that unusual situation. And given its ongoing investigation,
the Court believes NIU could reasonably have determined that any official response to Roe’s
unsolicited email might compromise the community’s confidence in the impartiality of NIU’s

investigation.
Finally, Plaintiff asserts that NIU hamstrung his defense by failing to disclose fully all
relevant materials in its possession. In particular, he alleges that Adamski admitted that she had
not produced to Plaintiff all her text messages with Roe, which Plaintiff claims undermined his
ability to defend himself. (FAC ¶¶ 82–85, 93–94.) Yet Plaintiff’s allegations as to those withheld
text messages are vague, providing no detail as to what they discussed or how their production
would have bolstered his defense. Nor can he claim that such elaboration was not possible due to
the nonproduction of the text messages since he also alleges that the subject “text messages are
mentioned in the Title IX report.” (Id. ¶ 94.) Moreover, it is not apparent that Plaintiff had any
right to obtain the text messages, as he cites no NIU policy or procedure affording students a
right to discovery in Title IX proceedings. Even accepting NIU’s lack of full production as a
procedural irregularity, this one failing on the part of NIU would not suffice to support a
reasonable inference of sex discrimination because there is no apparent connection between
NIU’s nonproduction and Plaintiff’s sex. See Columbia Coll., 933 F.3d at 856 (finding that the

university’s refusal to provide the plaintiff with relevant documents was “divorced from gender”
since he did not allege “that females accused of sexual assault were allowed to review materials
or that only female victims were allowed to review them”); see also Doe v. Samford Univ., 29
F.4th 675, 688 (11th Cir. 2022) (“A deviation from a Title IX policy is not, in and of itself, a
violation of Title IX.”).
In short, none of the supposed procedural irregularities that Plaintiff alleges were actually
irregular. Rather, it appears that NIU adhered closely to its Title IX policies and procedures and
Plaintiff is simply dissatisfied with its conclusion finding him responsible for Roe’s sexual
assault. Still, Plaintiff maintains that, even in the absence of procedural irregularities, NIU

prosecuted his Title IX complaint more aggressively than it would have for a similarly situated
female. To support this contention, Plaintiff highlights NIU’s supposedly more lenient
investigation of sexual misconduct complaints lodged against a female professor. That professor
had been accused of making unwanted sexual advances toward a male graduate student and,
when she was rebuffed, threatened to retaliate against him. (FAC ¶ 144.)
While Plaintiff claims that the accusation against the female professor was a sex-reversed
mirror of the circumstances here, the Court finds significant differences between the two cases.
Unlike Plaintiff, the female professor was not accused of making any sexual contact with her
alleged victim. Moreover, the subject of the female professor’s unwanted advances ultimately
declined to cooperate with NIU’s investigation, thus leading to the dismissal of the complaints.
(Id. ¶¶ 145–46.) Plaintiff attempts to cast suspicion on NIU’s motives by contrasting its quick
acceptance of the decision by the female professor’s victim not to proceed with a Title IX
complaint and Adamski’s continued outreach to Roe despite her initial disinclination to file a
complaint against Plaintiff. But it is hard to accept Plaintiff’s implication that Adamski badgered

Roe into filing a Title IX complaint given that Roe had already elected to pursue the more
serious measure of filing criminal charges based on the incident.5 And any reservations Roe
might initially have had about the Title IX process seem to have dissipated entirely, as evidenced
by her subsequent contacts with NIU advocating for disciplinary measures to be taken against
Plaintiff. Thus, the circumstances surrounding the female professor are not sufficiently
comparable to those faced by Plaintiff. That NIU handled different cases differently does
nothing to plausibly plead that sex discrimination in Plaintiff’s case.
Plaintiff also cites NIU’s handling of a 2011 sexual assault accusation against a school
police officer as illustrative of its history of anti-male bias. In that case, a student accused an

NIU police officer of sexual assault, which led to criminal charges. (Id. ¶¶ 134–36.) During the
criminal case, the presiding judge ruled that NIU’s police department intentionally withheld
exculpatory evidence. (Id. ¶ 136.) But the Court does not see how allegations regarding the
conduct of NIU’s police department in a criminal case reflects potential bias on the part of NIU
administrators in charge of Title IX enforcement.

5 Plaintiff argues that Adamski’s continued outreach to Roe violated NIU’s Title IX policies and
procedures but again fails to cite any specific prohibition. Indeed, the policies and procedures provide
that, where a criminal complaint is filed, the police “will forward the report to the Title IX Coordinator,”
who will then proceed in accordance with the investigation procedures. (Title IX Policies and Procedures
at 9.) Thus, it does not appear that Roe’s cooperation was even required for Adamski to proceed against
Plaintiff.
One last way Plaintiff attempts to show NIU’s tendency to discipline males more harshly
than females is by highlighting his interactions with the administration in his capacity as the
president of his fraternity. According to Plaintiff, his fraternity and fraternities in general were
subject to more extensive oversight than sororities, which he claims evidences NIU’s
discriminatory intent. That NIU subjected Plaintiff’s fraternity, in particular, to heightened

scrutiny is hardly surprising given that just a few years earlier, one of the fraternity’s pledge
brothers died at a hazing event. To the extent fraternities in general were subject to greater
oversight than sororities is not necessarily indicative of NIU’s anti-male bias, as the school may
have concluded from experience that the kind of excessive drinking that led to the pledge’s death
was more common at fraternities. Cf. Doe v. Univ. of Denver, 1 F.4th 822, 834 (10th Cir. 2021)
(declining to infer anti-male bias from the disparities between the gender makeup of sexual
assault complaints where “such disparities can readily be explained by an array of
nondiscriminatory possibilities,” such as “that male students commit more sexual assaults”
(internal quotation marks omitted)).

Viewing the FAC’s allegations as a whole, the Court cannot reasonably infer that an anti-
male bias influenced NIU’s determination that Plaintiff was responsible for Roe’s sexual assault.
Consequently, Plaintiff fails to state a claim for sex discrimination under Title IX.
II. Title IX—Retaliation
Plaintiff further alleges that, in retaliation for his active defense against Roe’s sexual
assault accusation, NIU imposed further punitive measures against him based on a thinly sourced
report accusing him of using an illegal drug at his fraternity house. Plaintiff therefore asserts a
separate Title IX retaliation claim. Unlike Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e-3(a), Title IX does not contain an express prohibition of retaliation.
Nonetheless, the Supreme Court has recognized the availability of a retaliation claim under Title
IX, explaining that “[r]etaliation against a person because that person has complained of sex
discrimination is another form of intentional sex discrimination encompassed by Title IX’s
private cause of action.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005). To state
a Title IX retaliation claim, a plaintiff must plead that: (1) he engaged in a protected activity
under Title IX; (2) his school took a materially adverse action against him; and (3) there was a

causal but-for connection between the two. Columbia Coll., 933 F.3d at 857.
NIU disputes that Plaintiff’s conduct in defending himself against Roe’s allegation of
sexual assault constituted a protected activity under Title IX. Title IX protects individuals from
being retaliated against for complaining of sex discrimination. Milligan v. Bd. of Trs. of S. Ill.
Univ., 686 F.3d 378, 388 (7th Cir. 2012). This Court, however, is dubious that Plaintiff’s
allegations concerning his defense against Roe’s sexual assault accusation can be construed as
him complaining of sex discrimination. Had Plaintiff alleged that, in the course of NIU’s
investigation, he communicated that the investigation was tainted by an anti-male bias, he would
be on firmer ground for purposes of his retaliation claim. Certainly, denying an allegation of

sexual assault does not imply that the allegation itself is an act of sex-based discrimination—both
men and women commit sexual assault. Samford Univ., 29 F.4th at 690.
Moreover, there is reason to believe that Title IX’s antiretaliation protections do not
encompass mere participation in a Title IX proceeding. Whereas Title VII contains antiretaliation
language that protects any person who has “participated in any manner in an investigation,
proceeding, or hearing,” 42 U.S.C. § 2000e-3(a) (emphasis added), the Supreme Court in
Jackson simply found that Title IX prohibits retaliation because it is a form of sex
discrimination. As the Supreme Court later emphasized, “the holding in Jackson was based on an
interpretation of the ‘text of Title IX.’” Gomez-Perez v. Potter, 553 U.S. 474, 484 (2008)
(quoting Jackson, 544 U.S. at 173). That Title IX’s antiretaliation prohibition is rooted in a text
that is narrower than Title VII’s express antiretaliation language seems to weigh in favor of
taking literally Jackson’s articulation of the protected activity as complaining of sex
discrimination. See Jackson, 544 U.S. at 178 n.2 (“We agree . . . that plaintiffs may not assert
claims under Title IX for conduct not prohibited by that statute.”).

Although the Seventh Circuit has not squarely addressed the scope of a Title IX
retaliation claim, several courts outside of this Circuit have concluded that “[n]o part of Title IX
designates participation in a sexual harassment investigation on the side of the accused as
protected activity.” Du Bois v. Bd. of Regents of Univ. of Minn., 987 F.3d 1199, 1205 (8th Cir.
2021); see also Schrader v. Emporia State Univ., No. 19-2387-DDC-TJJ, 2021 WL 4284543, at
*24 (D. Kan. Sept. 21, 2021) (“[T]he court concludes that plaintiff fails to state a claim for
retaliation under Title IX. Plaintiff’s argument relies on his participation in the Title IX
proceedings, not opposing discrimination.”); Doe v. Belmont Univ., 367 F. Supp. 3d 732, 757
(M.D. Tenn. 2019) (“Doe has offered no authority for the novel proposition that defending

himself against allegations of sexual misconduct, in and of itself, is the legal equivalent of
opposing or complaining of unlawful practices under Title IX.”). On the other hand, Plaintiff
does note that at least two courts have allowed a plaintiff to proceed with a retaliation claim
based upon their defense against sexual misconduct allegations. Crowther v. Bd. of Regents of
Univ. Sys. of Ga., 661 F. Supp. 3d 1342, 1356 (N.D. Ga. 2023), vacated, 2023 WL 4915078
(N.D. Ga. May 12, 2023); Wilkerson v. Univ. of N. Tex., 223 F. Supp. 3d 592, 602–03 (E.D. Tex.
2016). The Court does not find either of those cases persuasive. The subsequently vacated
Crowther decision contains only a cursory analysis of the issue. And Wilkerson relied on a
regulation, 34 C.F.R. § 100.7(e), to find that a Title IX retaliation claim covered participation in
a proceeding. The Eighth Circuit rejected a similar argument as foreclosed by Supreme Court
precedent. Du Bois, 987 F.3d at 1205 (citing Jackson, 544 U.S. at 178 & n.2; Alexander v.
Sandoval, 532 U.S. 275, 285 (2001)).
Even if Plaintiff’s participation in the Title IX proceeding could be treated as a protected
activity, his retaliation claim would still fail because he does not adequately allege that

retaliatory animus motivated NIU’s investigation of Plaintiff’s reported on-campus cocaine use
and the accompanying interim suspension. While the FAC contains multiple allegations
concerning Plaintiff’s efforts to prove to NIU that he never used cocaine, it never addresses
whether he also denied being present at his fraternity house during a time when interim measures
were in place barring him from being there. Plaintiff’s noncompliance with existing interim
measures prohibiting him from being present in student housing, by itself, would be sanctionable
under NIU’s Student Code of Conduct, regardless of whether or not he also used cocaine there.
(FAC, Ex. K, Student Code of Conduct at PageID #576, Dkt. No. 66.) With nothing in the FAC
disputing that aspect of the allegation against Plaintiff, the Court cannot find that Plaintiff has

plausibly alleged that NIU’s initiation of a separate disciplinary proceeding was pretext for
retaliation. See Doe v. Columbia Coll. Chi., 299 F. Supp. 3d 939, 959 (N.D. Ill. 2017) (“[A]n
entity may not be held liable for retaliation if it had a legitimate non-retaliatory reason for taking
the action alleged to be retaliatory.”), aff’d, 933 F.3d 849 (7th Cir. 2019). And similar to the Title
IX policies and procedures, the Student Code of Conduct allows the imposition of interim
measures such as Plaintiff’s suspension pending completion of an investigation. (Student Code
of Conduct at PageID #595–96.)
In short, the Court concludes that Plaintiff’s retaliation claim fails because he did not
engage in a protected activity by merely defending himself against Roe’s sexual assault
allegation. Moreover, to the extent that Plaintiff’s defense against Roe’s Title IX complaint was a
protected activity, he would still be unable to state a retaliation claim because the credible
allegation that Plaintiff violated the interim measures against him gave NIU a legitimate non-
retaliatory reason to open a separate investigation. For these reasons, the Court dismisses
Plaintiff’s Title IX retaliation claim.

III. Declaratory Judgment
Plaintiff’s FAC also seeks a declaratory judgment that, in effect, would clear the
disciplinary proceedings at issue in this case from Plaintiff’s record at NIU. Under the federal
Declaratory Judgment Act, a federal district court, “[i]n a case of actual controversy within its
jurisdiction . . . may declare the rights and other legal relations of any interested party.” 28
U.S.C. § 2201(a). “It is well-established that the Declaratory Judgment Act does not create an
independent cause of action. It provides only an additional form of relief.” Sieving v. Cont’l Cas.
Co., 535 F. Supp. 3d 762, 774 (N.D. Ill. 2021) (internal quotation marks omitted). Consequently,
“a court may only enter a declaratory judgment in favor of a party who has a substantive claim of
right to such relief.” Elward v. Electrolux Home Prods., Inc., 214 F. Supp. 3d 701, 708 (N.D. Ill.

2016) (internal quotation marks omitted).
Plaintiff is unclear as to what legal right he is asking this Court to declare. If he is asking
for a declaration of his Title IX rights, his declaratory judgment claim necessarily fails given the
Court’s dismissal of the substantive Title IX claims. And because there is no other discernable
case or controversy pleaded in the FAC, the declaratory judgment claim is dismissed.
CONCLUSION
For the foregoing reasons, NIU’s motion to dismiss (Dkt. No. 71) is granted. Plaintiff's
FAC is dismissed.
ENTERED:

Dated: September 30, 2024 hin.
Andrea R. Wood
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10645851. Public record. Not legal advice.