DOE v. THE UNIVERSITY OF NORTH CAROLINA SYSTEM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JACOB DOE, )

)

Plaintiff, )

)

v. ) 1:24-cv-41

)

THE UNIVERSITY OF NORTH )

CAROLINA SYSTEM, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is a Motion for a Preliminary Injunction

filed by Plaintiff Jacob Doe. (Doc. 4.) For the reasons

discussed herein, Plaintiff’s motion will be denied.

I. FACTUAL BACKGROUND

Plaintiff enrolled as an undergraduate student at the

University of North Carolina at Chapel Hill (“UNC-CH”) in August

2022. (Verified Compl. (“Compl.”) (Doc. 1) ¶¶ 1, 25.)1 Plaintiff

is male. (See id. ¶ 317.) On or about September 1, 2022,

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

Plaintiff and a female student (“Jane Roe” or “Roe”) engaged in

a sexual encounter2 on UNC-CH’s campus. (Id. ¶¶ 2, 154–163.)

“On March 9, 2023, in a meeting with [Equal Opportunity and

Compliance Office (‘EOC’)] investigators, Roe alleged that

Plaintiff engaged in possible violations of [UNC-CH’s] Title IX

and [Policy on Prohibited Discrimination, Harassment, and

Related Misconduct (‘PPDHRM’)] policies.” (Id. ¶ 202.) Roe

alleged Plaintiff

(1) recklessly and/or knowingly exposed [her] to a

sexually transmitted infection without her knowledge;

(2) penetrated [her] vagina with his penis without her

consent; and (3) placed [her] hand on his penis

without her consent.

(Id. ¶ 207.)

“On March 24, 2023, the EOC issued a notice of charges and

investigation based on Roe’s allegations.” (Id. ¶ 206.) “The

first charge was a violation of the [PPDHRM]; the second and

third charges were violations of the Title IX Policy. The EOC

determined that all three of the charges would be investigated

2 Plaintiff challenges UNC-CH’s determination that he was

responsible for sexual misconduct as a result of this encounter,

but “this Court does not sit as a super-school disciplinary

appeal board.” Doe v. Wake Forest Univ., No. 1:23-CV-00117, 2023

WL 2239475, at *4 (M.D.N.C. Feb. 27, 2023). The court’s task

here is not to decide whether that determination “was ‘correct,’

but rather much more specifically to decide if the University

violated any Federal law in its discipline of the Plaintiff.”

Id.

and adjudicated under the Title IX Policy and Procedures.” (Id.

¶ 208.)

UNC-CH investigated the charges and the EOC issued an

investigative report. (Id. ¶¶ 213–18.) A hearing based on the

investigation and its findings was held on September 11, 13, and

19, 2023. (Id. ¶ 221.) “The Hearing Officer found Plaintiff

responsible for sexual misconduct and not responsible for

exposing Roe to an STI. The Hearing Officer suspended Plaintiff

for one full academic year. The university’s Appeals Officer

denied Plaintiff’s appeal.” (Id. ¶ 222.)

Plaintiff alleges that several procedural irregularities

took place during the course of the investigation and hearing.

For example, Plaintiff alleges that he was denied the

opportunity to cross-examine Roe at the hearing, (id. ¶¶ 225–

28), and was not permitted to file his own formal complaint

against Roe for recklessly exposing him to a sexually

transmitted infection based on the same conduct as Roe’s formal

complaint, (id. ¶¶ 209–12). Plaintiff also alleges that the

Hearing Officer’s conclusions were not properly based on facts

in the record. (Id. ¶¶ 230–43).

II. PROCEDURAL HISTORY

Plaintiff filed a Verified Complaint, (Verified Compl.

(“Compl.”) (Doc. 1)), a Motion for Leave to Proceed

Pseudonymously, (Mot. for Leave to Proceed Pseudonymously (Doc.

2)), and a Motion for an Ex Parte Temporary Restraining Order

and Motion for a Preliminary Injunction, (Mot. for Ex Parte TRO

and Mot. for Prelim. Inj. (“Mot. for TRO and PI”) (Doc. 4)), on

January 17, 2024. On January 24, 2024, the court entered a

Temporary Restraining Order, (Doc. 8), granting Plaintiff’s

motion for a temporary restraining order ”with respect to

Plaintiff’s request that UNC-CH not disclose his name in

response to a public records request,” (id. at 2). The court

heard oral argument from the parties on the merits of the motion

for preliminary injunction on February 26, 2024. (See Docket

Entry 2/26/2024.) At oral argument, the court denied Plaintiff’s

motion for preliminary injunction but ordered that “Defendants

are prohibited from releasing or disclosing any information

concerning the disciplinary proceedings that are the subject of

this lawsuit” under the All Writs Act. (See id.)

III. ANALYSIS

To obtain a preliminary injunction, a plaintiff must

establish four prongs: “that [1] he is likely to succeed on the

merits, that [2] he is likely to suffer irreparable harm in the

absence of preliminary relief, that [3] the balance of equities

tips in his favor, and that [4] an injunction is in the public

interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,

20 (2008). “Courts considering whether to impose preliminary

injunctions must separately consider each Winter factor.” Di

Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017). A

preliminary injunction “is an extraordinary remedy intended to

protect the status quo and prevent irreparable harm during the

pendency of a lawsuit,” and the moving party bears the burden of

“clearly establish[ing] entitlement to the relief sought.” Id.

A plaintiff seeking a preliminary injunction “need not

establish a ‘certainty of success,’ but must make a clear

showing that he is likely to succeed at trial.” Di Biase, 872

F.3d at 230 (citation omitted). “[T]he burden placed upon

Plaintiff[] to show that each requirement of a preliminary

injunction is met is high. Consequently, merely ‘providing

sufficient factual allegations to meet the [Fed. R. Civ. P.]

12(b)(6) standard of Twombly and Iqbal’ does not show a

likelihood of success on the merits.” J.O.P. v. U.S. Dep’t of

Homeland Sec., 338 F.R.D. 33, 60 (D. Md. 2020) (citation

omitted). The parties focused solely on Plaintiff’s Title IX

claim in their briefing and at oral argument, therefore this

court will only address the likelihood of Plaintiff’s success as

to his Title IX claim.

Title IX provides that “[n]o person . . . shall, on the

basis of sex, be excluded from participation in . . . or be

subject to discrimination under any education program or

activity receiving Federal Financial assistance.” 20 U.S.C. §

1681(a). To establish a claim under Title IX, a plaintiff must

establish “causation — that is, a causal link between the

student’s sex and the university’s challenged disciplinary

proceeding. Not just any causal link will suffice . . . . [T]he

language requires ‘but-for’ causation.” Sheppard v. Visitors &

Rectors of Va. State Univ., 993 F.3d 230, 236 (4th Cir. 2021).

Plaintiff bases his Title IX claim on the theory that UNC-

CH’s disciplinary proceedings yielded an “erroneous outcome”

“motivated by gender bias.” (Pl’s Br. in Supp. of Mot. for TRO

and Prelim. Inj. (“Pl.’s Br.”) (Doc. 5) at 11; see also Compl.

(Doc. 1) ¶ 300.)

To state a claim under Title IX, Plaintiff must allege

Defendant discriminated against him on the basis of sex.

Sheppard, 993 F.3d at 236. Under the “erroneous outcome” theory,

a plaintiff must show “(1) ‘particular facts sufficient to cast

some articulable doubt on the accuracy of the outcome of the

disciplinary proceeding’ and (2) ‘particular circumstances

suggesting that gender bias’” was the but-for cause of the

erroneous outcome. Doe v. Maryland, No. ELH-20-1227, 2021 WL

1174707, at *22 (D. Md. Mar. 29, 2021) (quoting Yusuf v. Vassar

Coll., 35 F.3d 709, 715 (2d Cir. 1994)); Sheppard, 993 F.3d at

236 (“[I]nherent in this approach is a requirement that a Title

IX plaintiff adequately plead causation — that is, a causal link

between the student’s sex and the university’s challenged

disciplinary proceeding.”).

“The first element can be satisfied by (1) pointing to

procedural flaws in the investigatory and adjudicative process,

(2) identifying inconsistencies or errors in the findings, or

(3) challenging the overall sufficiency and reliability of the

evidence.” Doe 2 ex rel. Doe 1 v. Fairfax Cnty. Sch. Bd., 384 F.

Supp. 3d 598, 607 (E.D. Va. 2019), aff’d, 832 F. App’x 802 (4th

Cir. 2020). The second element can be satisfied by “statistical

evidence of gender bias in the University’s decision making,

policies and procedures that are designed to reach gender-

specific outcomes, and/or statements by university officials

evidencing gender bias.” Doe v. Marymount Univ., 297 F. Supp. 3d

573, 586 (E.D. Va. 2018).

“But merely identifying mistakes or imperfections in an

investigation does not suffice to raise a plausible inference of

sex discrimination.” Frierson v. Shaw Univ., --- F. Supp. 3d ---,

2023 WL 3571924, at *4 (E.D.N.C. May 19, 2023) (citing Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291–92 (1998); see

Doe v. Samford Univ., 29 F.4th 675, 688 (11th Cir. 2022)

(plaintiff not entitled to inference of sex discrimination from

alleged deficiencies in investigation). “Moreover, evidence that

a university credits an alleged victim’s statements and

supporting evidence during a Title IX investigation does not

constitute sex-based bias or discrimination.” Frierson, 2023 WL

3571924, at *4 (collecting cases).

Plaintiff raises multiple specific allegations about what

he characterizes as procedural defects resulting from gender

bias against him. These include “[t]he withholding of

information and evidence from Plaintiff,” “[r]eliance on

demonstrably false allegations,” refusing to investigate or

charge Roe with exposing Plaintiff to an STI while maintaining

that same charge against Plaintiff, “[p]rohibiting Plaintiff

from cross-examining his accuser (Roe) on facts directly

relevant to her credibility,” “[p]rohibiting Plaintiff from

presenting evidence concerning responses to sexual assault while

permitting the accuser to present evidence explaining her own

incongruous conduct,” and several others. (See Pl.’s Br. (Doc.

5) at 13–15.) Though Plaintiff plausibly alleges that he was

subjected to several procedural irregularities throughout the

course of UNC-CH’s Title IX process, Plaintiff’s allegations

“fall short of clear evidence that [he] is likely to prove at

trial that the alleged errors made by the Hearing Officer and

Appeals Officer were the result of gender bias.” Doe v. Wake

Forest Univ., No. 1:23-CV-114, 2023 WL 2239475, at *7 (M.D.N.C.

Feb. 27, 2023).

Plaintiff fails to identify any direct evidence of gender

bias. He does not allege any specific comments or statements

made by UNC-CH administrators that could create an inference of

gender bias. Cf. Doe v. Marymount Univ., 297 F. Supp. 3d 573,

585 (E.D. Va. 2018) (holding comment by plaintiff’s adjudicator

revealed the adjudicator adhered to gender-biased beliefs in

connection with a later sexual assault investigation).

As indirect evidence of gender bias, Plaintiff provides a

history of UNC-CH’s recent Title IX program changes and external

influences, including the national media scrutiny UNC-CH has

received in the past decade regarding its poor responses to

Title IX complaints. (Compl. (Doc. 1) ¶¶ 301–61.) Plaintiff also

alleges facts about the Department of Education’s investigation

of UNC-CH, the resulting Title IX violations it found, and the

fine UNC-CH paid as a result. (Id. ¶¶ 364–71.) However,

Plaintiff does not specifically allege that this context results

in UNC-CH implementing, practicing, or permitting a gender-

biased Title IX adjudication process presently or as to him

specifically. See Wake Forest Univ., 2023 WL 2239475, at *7.

Instead, UNC-CH’s Title IX policies state that Title IX

administrators “must not have a conflict of interest or bias for

or against Reporting Parties or Responding Parties generally or

an individual Reporting Party or Responding Party; must not rely

on sex stereotypes; and must promote impartial investigations

and adjudications of Formal Complaints of Sexual Harassment.

Further, these individuals must receive training on: . . . how

to conduct an investigation and grievance process including

hearings, appeals, and informal resolution processes as

applicable; and how to serve impartially, including avoiding

prejudgment of the facts at issue, conflicts of interest, and

bias.” (Compl. (Doc. 1) ¶¶ 87–88.)

Though Plaintiff plausibly alleges that he was subjected to

several procedural irregularities throughout the course of UNC-

CH’s Title IX process, he has not shown that these

irregularities were because of gender bias. Accordingly,

Plaintiff does not demonstrate a likelihood of success on the

merits of his Title IX claim. Because Plaintiff fails to show a

likelihood of success on the merits, this court will not

evaluate the remaining Winter factors.

IV. CONCLUSION

For the foregoing reasons, IT IS THEREFORE ORDERED that

Plaintiff’s Motion for a Preliminary Injunction, (Doc. 4), is

DENIED.

This the 14th day of March, 2024.

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