finding no evidence of breach of the implied contract of a private school educational opportunity where, the plaintiff alleged that there was a breach of the disciplinary process
How later courts described this case
- finding no evidence of breach of the implied contract of a private school educational opportunity where, the plaintiff alleged that there was a breach of the disciplinary process
- analyzing a selective-enforcement claim based on statistical information
Written by the judges who cited it.
The opinion
Southern District of Texas
ENTERED
September 16, 2027
UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN DOE, §
Plaintiff, :
VS. § CIVIL ACTION NO. 4: 20-cv-2985.
WILLIAM MARSH RICE UNIVERSITY, ; □
Defendant. :
ORDER
Pending before the Court is Defendant William Marsh Rice University’s Motion for
Summary Judgment. (Instrument No. 61).
I.
A.
Plaintiff John Doe (“Plaintiff”), a former student and football player at Defendant William
Marsh Rice University ( the “University”) brings a Title IX discrimination claim alleging that the
University’s investigation of his conduct was motivated by “an anti-male discriminatory bias.”
(Instrument No. 1 at 7). Additionally, Plaintiff brings a breach of contract claim alleging that the
University breached its contract when it failed to conduct a fair and impartial disciplinary process
during its investigation of Plaintiff's conduct. (Instrument No. 1 at 33). Based on his claims,
Plaintiff seeks declaratory judgment and injunctive relief under 28 U.S.C. Section 2201.
(Instrument No. 1 at 1, 22).
B. -
In Fall 2017, Plaintiff was a freshman football athlete at the University. (Instruments No.61
at 3; No. 79 at 4). Prior to attending the University, Plaintiff was diagnosed with herpes.
(Instruments No. 63 at 144-147). In Fall 2017, Plaintiff began a relationship and engaged in
multiple, unprotected sexual encounters with University student Jane Roe (“Roe”). (Instruments
No. 61 at 3; No. 79 at 4, 6). In early December 2017, Roe and Plaintiff's relationship ended the
day after they had a sexual encounter. (Instruments No. 61 at 3; No. 79 at 6).
On or about December 14, 2017, Roe visited the University’s Student Health Services and
received a preliminary diagnosis of herpes. (Instrument No. 63 at 13). On or about December 14,
2017, Roe and Plaintiff discussed. via text messages, Roe’s preliminary herpes diagnosis,
Plaintiff's herpes status, and the life-long implications of contracting herpes. (Instrument No. 63
at 22-28). Roe informed Plaintiff that she believed she contracted Herpes from him. (Instrument
No. 63 at 22-28). Plaintiff confirmed that he contracted herpes “a long time ago.” (Instrument No.
63 at 25). Plaintiff further responded “Yes” when asked by Roe if he had known he “had herpes
this entire time and didn’t tell [Roe] until now.” (Instrument No. 63 at 26).
On December 15, 2017, Roe spoke with the University’s Cathryn Councill (“Councill’)
and alleged that she became infected with herpes after having a consensual sexual encounter with
another University student. (Instrument No. 63 at 13). Roe reported that this University student
failed to inform her that he had herpes prior to their sexual encounter. (Instrument No. 63 at 13).
Roe inquired about how to make a report through the University’s Student Judicial Programs
(“SJP”). Id.
On or about December 18, 2017, Roe filed a report with the Rice University Police
Department (“RUPD” or “Police”) alleging that a University student, Plaintiff, failed to inform her
that he had herpes prior to them engaging in unprotected sex. (Instrument No. 63 at 14). On
December 19, 2017, Roe requested that the University Police file criminal charges against
Plaintiff. (Instrument No. 63 at 19). On or about February 1, 2018, the State’s ADA Sarah Nayland
declined to pursue charges, because the State could not “prove that the Defendant [Plaintiff]
intended to cause the Complainant [Roe] pain . . . Specifically, the State cannot prove that the
Defendant [Plaintiff] intended to spread herpes to the Complainant [Roe].” (Instrument No. 63 at
17).
On January 30, 2018, Roe met with the University’s SJP. (Instrument No. 63 at 21). On
February 12, 2018, Roe submitted a written complaint to SJP. (Instrument No. 63 at 21, 30). In her
complaint, she alleged that Plaintiff failed to inform her that he had or still had herpes during their
relationship. (Instrument No. 63 at 21). On February 13, 2018, the Director of the University’s
SJP, Emily Garza (“Garza”) emailed Plaintiff forbidding contact with Roe and scheduling a
February meeting with him to discuss “a disciplinary matter.” (Instruments No. 61 at 3; No.
63 at 31).
On February 14, 2018, Plaintiffs then-attorney called Garza and informed her that Plaintiff
would not be attending the meeting that day. (Instrument No. 63 at 33). After this phone call,
Plaintiff sent Garza an emai! asking to reschedule the meeting. (Instrument No. 63 at 32). On the
same day, Garza sent a charge letter to Plaintiff (1) notifying him of the disciplinary charges filed
against him under the University’s Code of Student Conduct (hereafter referred to as the “Code”
or “University’s Code”), (2) summarizing the allegations made against him by Roe, and (3)
explaining the University’s next steps. (Instrument No. 63 at 33-36). In the charge letter, Garza
indicated that she was investigating whether Plaintiff violated the Code’s Section IJ. B.1.a, which
prohibits “intentionally inflicting or attempting to inflict mental or bodily harm on any person . . .
taking reckless disregard, from which mental or bodily harm could result to any person” and
expressed concern that his conduct “may qualify as dating violence” under the Sexual Misconduct
Policy. (instrument No. 63 at 35). In the letter, Plaintiff was informed that he had until February
□ 3
21, 2018 to respond to the charge letter. Id. SJP later extended his response deadline to March 6,
2018. (Instrument No. 63 at 109).
On February 14, 2018, the University’s Dean Donald Ostdiek (“Dean Ostdiek”) sent
Plaintiff a letter notifying him that he was placed on an interim suspension immediately pursuant
to the Code’s Section 1. E.1 and | E.2. (Instrument No. 63 at 37). The letter indicates that the
University suspended Plaintiff in order to protect the University community and because of
Plaintiff's “choice not to participate in the Rice processes.” Jd. Additionally, the letter states that
Plaintiff previously “declined to participate with RUPD in their investigation.” (Instrument No. 63
at 37). The letter also ‘indicates that the interim suspension would be reviewed after Plaintiff
engaged in the University’s investigation process. Jd.
On March 6, 2018, Plaintiff submitted a written response to Roe’s complaint. (Instrument
No. 63 at 112-115). In his response, Plaintiff alleged that early in their relationship he and Roe
discussed that he had a “run-in” with herpes in high school and contracted chlamydia at the
University. (Instrument No. 63 at 112). Plaintiff stated that in high school, he was diagnosed with
the HSV-1 type of herpes. Jd. Plaintiff alleged that he had not had “herpes outbreaks or symptoms” □
since high school. (Instrument No. 63 at 113). Plaintiff also alleged that Roe may have contracted
herpes from several other students. Jd. Plaintiff furthered alleged that he never lied about his
“sexual history or STD’s.”(Instrument No. 63 at 115).
On March 7, 2018, Plaintiff and his support person, his then-attorney met with Garza.
(Instrument No. 63 at 9). On the same day, the University notified Plaintiff that he may attend
classes since he was participating in its investigation process. (Instrument No. 63 at 116).
On April 17, 2018, Garza issued a Decision Letter summarizing the investigation,
evidence, conclusions, and the parties’ conflicting statements. (Instrument No. 63 at 142-149).
During the investigation, Garza gathered and then considered the following information: Roe’s
written complaint, Plaintiff's written response to the University’s charge, Roe and Plaintiff's text
and Snapchat messages, Roe’s medical records, the University’s Police report, and her recordings
of the separate meetings with Plaintiff and Roe. (Instruments No. 61 at 4; No. 63 at 142-149).
Based on the preponderance of evidence standard, Garza concluded that Plaintiff violated the
University’s Code, but that his behavior did not violate the Sexual Misconduct Policy. (Instrument
No. 63 at 143). First, the report states that based on the evidence, “you failed to adequately notify
[Roe] of the fact that: she was at risk of contracting HSV-1 from you if the two of you engaged in
unprotected sex. Your failure to clearly disclose this information to a sexual partner, and then
subsequently engage in unprotected sex, was a reckless action from which mental or bodily harm
could result to another person.”(Instrument No. 63 at 142-143). Garza noted that when students
give conflicting statements, she considers other information such as text messages. (Instrument
No. 63 at 147). Second, the reports states, “It is consistent with both of your recollections that you
discussed your recent (at the time) diagnosis and treatment of chlamydia, each person’s list of
sexual partners, and your “run-in” with herpes in high school. I would like to note that the term
“run-in” was used by you in both a meeting with me and your written statement, and you described
the portion of your conversation related to herpes as “not deep or elaborate on the effect . . . or the
risks[.]”” (Instrument No. 63 at 147). Third, the report states that Plaintiffs disclosure did not meet
the “high expectations of civility and respect for others . . . as described in the Code of Student
Conduct.” Jd. Fourth, the report states while Roe “acknowledges that you mentioned a history with
herpes early in the relationship, she [Roe] was never informed of the details of the disease, the
long-term effects, or how it spread.” Jd. Fifth, the reports states, “Your text messages to her also
reinforce that the previous face to face conversation was insufficient to reach a clear conclusion or
.
understanding.” (Instrument No. 63 at 147-148). As a result of these finding, Plaintiff was
disciplined with “rustication.” (Instrument No. 63 at 148). Rustication —permitted Plaintiff to be
on campus solely for academic purposes, and for other purposes with prior SJP’s permission.
(instrument No. 63 at 148).
On April 23, 2018, Plaintiff filed his Notice of Appeal of SJP’s Decision Letter with Dean
John S. Hutchinson (“Dean Hutchinson”). (Instrument No. 63 at 150-156). In his Notice, Plaintiff
alleged that Roe gave conflicting testimony and “no reasonable trier of fact would find” Roe
“credible or sustain his [Plaintiffs] charges.” (Instrument No. 63 at 150). Plaintiff asserted the SJP
was biased in favor of Roe. (Instrument No. 63 at 153). Additionally, Plaintiff contended that the □
University’s administration failed to hold Roe responsible for her “reckless” behavior. (Instrument
No. 63 at 152). Plaintiff also alleged that Garza failed to interview another student who he alleges
contracted herpes from Roe, prior to Plaintiff attending the University. Jd.
On May 4, 2018, Dean Hutchinson issued his decision and sustained SJP’s finding of the □
violation for reckless disregard and sustained the disciplinary sanction. (Instrument No. 63 at 154-
156). Dean Hutchinson found Plaintiffs Notice failed to present any evidence of bias. (Instrument
No. 63 at 156). Dean Hutchinson considered whether Plaintiff's claim about Roe’s lack of
credibility affected any disputed facts. (Instrument No. 163 at 154). Dean Hutchinson recalled that
the dispute was whether Plaintiff provided Roe with “appropriate, necessary, and timely
information” about his herpes diagnoses prior to engaging in sexual contact with Roe. Jd. Dean
Hutchinson determined that Plaintiff's text messages to Roe, established that his conduct
constituted “reckless disregard.” (Instrument No. 63 at 155). Additionally, Dean Hutchinson found
that a number of Plaintiff's allegations did not address the issue investigated by Garza—which
6 □
was whether Plaintiff gave “sufficient notice” about his herpes diagnosis. (Instrument No. 63 at
155).
On July 16, 2018, Plaintiff withdrew from the University. (Instrument No. 63 at 157).
C. □
On August 17, 2017 and March 5, 2018, the University revised its Code of Student
Conduct. (Instruments No. 63 at 39, 63).. The Code provides that its purpose is to “articulate and
enforce standards of behavior.” (Instrument No. 63 at 63). The standards provided are intended
to “prohibit misbehavior and to punish violations but also to educate about behavior and character
traits that the [University] community wishes to promote or discourage; to protect community
members from harm or unwarranted interference...” (Instrument No. 63 at 63).
The Code’s Section I. B 1. a. prohibits “Mental or Bodily Harm, Reckless Action or
Disregard: intentionally inflicting or attempting to inflict mental or bodily harm on any person,
including on the charged student; taking any reckless action, or showing reckless disregard, from
which mental or bodily harm could result to any person, including to the charged student.”
(instrument No. 63 at 71). The Code’s Section III prohibits sexual misconduct pursuant to its Title
‘IX Policy. (Instrument No. 63 at 76-77). The Code applies to on and off campus behavior.
(Instrument No. 63 at 64). The Code provides the “procedures for determining the facts regarding
a charge and arriving at a fair and informed resolution of a charge” and the process for appealing
the official bodies’ decision. (Instrument No. 63 at 80, 84). The Code indicates that a number of
official bodies including the SJP can administer the Code. (Instrument No. 63 at 65).
The Code provides that after a complaint has been filed, the student “charged” shall be
notified of the alleged Code’s violations. (Instrument No. 63 at 83, 91). Additionally, during the
investigation the respondent has an opportunity to respond to the charges, review the respondent’s
disciplinary file, submit information, and receive notice of the procedural steps in the disciplinary
process, including the student’s ability to appeal the decision. (Instrument No. 63 at 81-85). After
concluding its investigation, the official body will issue a decision. (Instrument No. 63 at 67). The
Code provides that the University will apply the preponderance of evidence standard to determine
“whether the information shows the student is more likely than not to have committed the behavior
at issue.” (Instrument No. 63 at 80, 99).
D.
On September 11, 2019, Plaintiff filed his Complaint against William Marsh Rice
University, Emily Garza, and Donald Ostdiek. (Instrument No. 1). Plaintiff brings a gender
discrimination in violation of the Title LX of the Educational Amendments Act of 1972, 20 U.S.C.
Section 1681 and breach of contract claims. Jd. at 1. Additionally, Plaintiff seeks declaratory
judgment and injunctive relief for the forementioned claims. fd. On May 6, 2020, Plaintiff filed a
Notice of Dismissal as to Defendants Emily Garza and Donald Ostdiek that was incorrectly filed
as a Motion to Dismiss. (Instrument No. 33). On May 7, 2020, the U.S. District Court for the
Eastern District of Texas entered an Order dismissing Defendants Emily Garza and Donald
Ostdiek. (Instrument No. 34). On August 4, 2020, the Court granted a Motion for a Change of
Venue by Defendant Rice University and this case was transferred to the Southern District of Texas
on August 25, 2020. On January 16, 2021, the University filed its Motion for Summary Judgment.
(Unstrument No. 61). On February 26, 2021, Plaintiff filed his Response. (Instrument No. 79). On
March 5, 2021, the University filed its Reply. (Instrument No. 86). On the same day, the University
filed its Objections to Plaintiff's Summary Judgment Evidence. (Instrument No. 84). On March
12, 2021, Plaintiff filed a Response to the University’s Objections. (Instrument No. 85). On March
15, 2021, the University filed its Reply to Plaintiff's Response to its Objections. (Instrument No.
86). On April 28, 2021, the Court granted the University’s Motion for an extension of time to file
an answer. (Instrument No. 90). On April 28, 2021, the University filed its answer. (Instrument
No. 91).
Il.
As a preliminary matter, the University objects to Plaintiff’s summary judgment evidence.
(Instrument No. 84). The University objects to seven of Plaintiffs exhibits: (1) the CDC’s website
information on herpes; (2) Garza’s deposition testimony regarding the University’s disciplinary
process and the investigation of the complaint filed against Plaintiff; (3) Dean Ostdiek’s deposition
testimony regarding the nature of the potential criminal charges filed against Plaintiff and
Plaintiff's University suspension; (4) Plaintiffs disciplinary charge response; (5) a partial draft of
the University’s Garza’s Finding Letter; (6) Plaintiff's affidavit, and (7) Plaintiff's Amended Initial
Disclosures. (Instrument No. 84 at 1-10). Plaintiff objects on the basis of form, relevancy, optional
completeness, hearsay, authenticity, improper judicial notice, failure to timely designate an expert,
and failure to timely disclose or supplement Plaintiffs disclosures. (Instrument No. 84 at 1-10).
In response to ‘the University’s objections, Plaintiff contends that the University is
attempting to “back door evidence” that it failed to cite in its Motion under the guise of “optional
completeness.” (Instrument No. 85 at 1-2). Additionally, Plaintiff asserts that some of the objected
exhibit citations the University cites are “not actually included in the Plaintiffs response.
(instrument No. 85 at 2, 3). Plaintiff also contends that it is not offering Garza’s deposition
testimony regarding whether she refused to interview a student witness, for the truth of the matter
or what the witness may have known. Jd. at 2-3. Instead, Plaintiff argues that this testimony is
being offered to show gender bias. Jd. Plaintiff contends that his written charge response is being
offered to show bias and is a prior consistent statement. (Instrument No. 85 at 3). Plaintiff asserts
that his affidavit’s statements are not hearsay. (Instrument No. 85 at 4). Plaintiff further alleges
that these statements are “made by the declarant in a properly submitted affidavit.” (Instrument
No. 85 at 4). Plaintiff contends that he has “direct knowledge” about the effects the University’s
actions have had on his life. Jd. Plaintiff argues that his affidavit statements are relevant to the
issue of bias. Jd. Plaintiff alleges that his statements discussing whether or not the University □
suspended Plaintiff before interviewing him are evidence of bias. (Instrument No. 85 at 5).
Plaintiff argues that he is offering his amended disclosures to address the University’s contention
that Plaintiff never provided specific information regarding his damages. (Instrument No. 85 at 4-
6). In regard to the partial draft of the University’s Finding Letter, Plaintiff contends that the
assertion for which this draft letter is offered for is the same assertion the University asserts in its
Motion for Summary Judgment. /d. at 5.
On a motion for summary judgment, “the admissibility of evidence . . . is subject to the
usual rules relating to form and admissibility of evidence.” Munoz v. Int’l Alliance of Theatrical
Stage Emps. & Moving Picture Mach. Operators of US. & Can., 563 F.2d 205, 213 (Sth Cir.
1977). “A party may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The hearsay rules as
prescribed by Federal Rules of Evidence 801 and 802 apply with equal force in the summary
judgment context. Warfield v. Byron, 436 F.3d 551, 559 (Sth Cir. 2006). Furthermore, conclusory
statements, unsubstantiated and subjective beliefs, and speculative statements are not proper
summary judgment evidence. See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
The Court notes that the University specifically objects to excerpts of Garza and Dean
Ostdiek’s deposition testimony based on “optional completeness” and provides their full
10
deposition testimony. (Instrument No. 84 3-6). The Court notes that Rule 56(c) of the Federal
Rules of Civil Procedure specifically allows depositions to be considered on a motion for summary
judgment. Additionally, “When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require the introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be considered contemporaneously with
it.” Fed. R. of Evid. 106. Thus, the Court will consider Garza and Dean Ostdiek’s deposition
testimony.
Additionally, as the Court’s analysis will show, the Court did not need to rely upon the
objected exhibits to resolve the Motion. See Floyd v. Hefner, 556 F. Supp. 2d 617, 636 (S.D. Tex.
2008) (Harmon, J.); Brantley v. Inspectorate Am. Corp., 821 F. Supp. 2d 879, 886 (S.D. Tex. 2011)
(Gilmore, J.). Accordingly, the University ’s objections are OVERRULED.
Il.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Warfield v. Byron, 436 F.3d 551, 557
(5th Cir. 2006); see also Fed. R. Civ. P. 56(a).
The “movant bears the burden of identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253, 261 (Sth Cir. 2007) (citing Celotex, 477 US. at 322-25). “A genuine issue of material
fact exists when the evidence is such that a reasonable jury could return a verdict for the non-
moving party.” Fisk Elec. Co. v. DOSE, L.L.C., 894 F.3d 645, 650 (5th Cir. 2018) Cnternal
quotations omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
11
If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its
initial burden by “showing — that is, pointing out to the district court — that there is an absence
of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. While the party
moving for summary judgment must demonstrate the absence of a genuine issue of material fact,
it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co.,
402 F.3d 536, 540 (Sth Cir. 2005) (citation omitted). “If the moving party fails to meet [its] initial
burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s
response.” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (Sth Cir. 2008)
(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
After the moving party has met its burden, in order to “avoid a summary judgment, the
nonmoving party must adduce admissible evidence which creates a fact issue concerning the
existence of every essential component of that party’s case.” Thomas v. Price, 975 F.2d 231, 235
(Sth Cir. 1992). The party opposing summary judgment cannot merely rely on the contentions
contained in the pleadings. Little, 37 F.3d at 1075. Rather, the “party opposing summary judgment
is required to identify specific evidence in the record and to articulate the precise manner in which
that evidence supports his or her claim.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 457, 458 (Sth
Cir. 1998); see also Baranowski v. Hart, 486 F.3d 112, 119 (Sth Cir. 2007). Although the court
draws all reasonable inferences in the light most favorable to the nonmoving party, Connors v.
Graves, 538 F.3d 373, 376 (Sth Cir. 2008), the nonmovant’s “burden will not be satisfied by some
metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d
at 1075). Similarly, “unsupported allegations or affidavit or deposition testimony setting forth
12
ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for summary
judgment.” Clark v. Am. ’s Favorite Chicken, 110 F.3d 295, 297 (Sth Cir. 1997).
In deciding a summary judgment motion, the district court does not make credibility
determinations or weigh evidence. E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 612
n.3 (Sth Cir. 2009). Nor does the court “sift through the record in search of evidence to support a
party’s opposition to summary judgment.” Jackson v. Cal-Western Packaging Corp., 602 F.3d
374, 379-80 (Sth Cir. 2010); Malacara v. Garber, 353 F.3d 393, 405 (Sth Cir. 2003); Ragas, 136
F.3d at 458; Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (Sth Cir.1988) (it is not
necessary “that the entire record in the case ... be searched and found bereft of a genuine issue of
material fact before summary judgment may be properly entered”). Therefore, “[w]hen evidence
exists in the summary judgment record but the nonmovant fails even to refer to it in the response
to the motion for summary judgment, that evidence is not properly before the district court.”
Malacara, 353 F.3d at 405.
IV.
Plaintiff brings several claims in his Complaint. Plaintiff asserts (1) declaratory judgment
_ and injunctive relief action; (2) a Title IX claim, and (3) breach of contract. (Instrument No. 1).
The University moves for summary judgment on Plaintiffs Title [X and breach of contract claims.
(Instrument No. 61).
The Court notes that Plaintiff made a number of allegations under his Title [X claim’s
analysis, but failed to cite to the record for his assertions. (Instrument No. 79 at 23-27). The Court
reiterates that it is not required to “sift through the record in search of evidence to support a party’s
. 13
opposition to summary judgment.” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 379-
80 (Sth Cir. 2010); Malacara y. Garber, 353 F.3d 393, 405 (Sth Cir. 2003).
A.
Plaintiff argues that the University discriminated against him based on gender. (Instrument
No. 1 at 1). The University contends that it did not discriminate against Plaintiff and moves for
summary judgment based on Plaintiffs lack of evidence to support his claims for Title [IX
discrimination. (Instrument No. 61 at 1, 6-12). Plaintiff does not assert a Title [X claim based on
the deliberate indifference theory. (Instrument No. 1 at 26). In his Response, Plaintiff only
addresses the erroneous outcome, selective enforcement, and archaic assumptions theories.
(Instrument No. 79 at 23-27). Accordingly, the Court will address the merits of Plaintiffs Title
IX claim based on the erroneous outcome, selective enforcement, and archaic assumptions
theories.
Title LX of the Educational Amendments Act of 1972 (“Title [X”’) prohibits discrimination
the basis of sex in all federally-funded educational programs. 20 U.S.C. § 1681(a). Specifically,
it provides:
No 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.
Id. Title IX is “enforceable through an implied private right of action,” and “monetary damages
are available in the implied private action.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
281 (1998). A plaintiff may obtain damages under Title IX “where the funding recipient engages
in intentional conduct that violates the clear terms of the statute.” Klocke v. Univ. of Texas at
Arlington, 938 F.3d 204, 209-210 (Sth Cir. 2019), cert. denied, 140 S. Ct. 1268 (2020)( internal
citations omitted).
14
1.
The University contends that Plaintiff cannot establish a Title IX erroneous outcome claim
because (1) Plaintiff is not innocent based on his written and oral admissions; and (2) there is no
evidence that gender bias motivated or influenced the University’s actions. (Instrument No. 61 at
7-9).
To succeed on an erroneous outcome claim, a plaintiff must show both that the university’s
disciplinary proceeding had an “erroneous outcome” and that “gender bias was a motivating factor
behind the erroneous finding.” Klocke v. Univ. of Texas at Arlington, 938 F.3d 204, 210 (Sth Cir.
2019), cert. denied, 140 S. Ct. 1268 (2020) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d
Cir. 1994)). “A plaintiff alleging an erroneous outcome must point to particular facts sufficient to
cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding,” and
“demonstrate a “causal connection between the flawed outcome and gender bias.” Id.
Plaintiff argues that the University’s disciplinary outcome was “wrong.” (Instrument No.
79 at 24). Plaintiff contends that the University failed to consider Roe’s credibility and inconsistent
statements. Jd. Plaintiff cities to a Seventh Circuit Court of Appeals case where it found that a
plaintiff provided evidence of a Title [IX violation in part because of the University’s failure to
consider “Jane’s credibility.” (instrument No. 79 at 24 citing Doe v. Purdue Univ., 928 F.3d 652,
656 (7th Cir. 2019). In Doe v. Purdue University, a university’s failure to interview Jane and
Jane’s failure to submit a statement regarding the Title IX incident was evidence that the University
failed to consider Jane’s credibility. 928 F.3d 652, 664-665, 669 (7th Cir. 2019). Plaintiff alleges
that Roe’s statement regarding whether Plaintiff told her that he contracted herpes before they slept
together was inconsistent. (Instrument No. 79 at 24). Plaintiff asserts that Roe made inconsistent
statements concerning when she discovered she had a herpes outbreak, the frequency of her herpes’
15
screenings, the number of sexual partners she had during the time she had sex with Plaintiff, □□□
if she asked Plaintiff about herpes. (Instrument No. 79 at 24-25).
Plaintiff also asserts that there were procedural flaws in the University’s investigation.
(Instrument No. 79 at 25). Plaintiff contends that the University failed to conduct a hearing and
failed to allow Plaintiff's then-attorney to participate in the disciplinary process. Jd. Plaintiff
asserts that the University refused to interview other students. /d. Plaintiff contends that Garza
destroyed her investigatory notes. Jd.
Additionally, Plaintiff argues that there is evidence of gender bias. (Instrument No. 79 at
25). Plaintiff proffers as evidence Garza’s deposition testimony. Jd. Much of Plaintiffs arguments
focuses on the University and whether it considered Roe’s responsibility for her contraction of
herpes. Jd. Plaintiff contends that the following incidents establish bias. Plaintiff alleges that the
Garza “blame[d]” him for failing to “educate himself about herpes, but determined that Roe had
no such responsibility.” Jd. Plaintiff alleges that Garza’s failure to ask Roe any questions about her
sex life is evidence of bias. Jd. Plaintiff also contends that Garza failed to interview a witness who
would state that Roe “gave his friend herpes” before Plaintiff had unprotected sex with Roe... Jd.
Furthermore, Plaintiff asserts that he was also charged with dating violence and “kicked out” of
his dorm and classes before the University completed his investigation. (Instrument No. 79 at 25). -
In its Reply, the University contends that Plaintiff failed to proffer any evidence to support □
the elements of the erroneous outcome theory. (Instrument No. 83 at 3). The University specifically
argues that Plaintiff has failed to provide any evidence that his gender was the motivating factor
in the University’s decision to discipline him for violating the University’s Code. (Instrument No.
83 at 2). This Code prohibits students from engaging in reckless actions that could result in mental
or physical harm. Jd. The University contends that unlike the complainant involved in the Doe v.
, 16
Purdue, there is no evidence that the University “chose to believe Roe, because she is a woman
and to disbelieve Doe, because he is a man,” (Instrument No. 83 at 7-8). The University proffered
evidence that it considered Roe’s credibility. (Instruments No. 83 at 3; No. 63 at 154-156).
Additionally, the University contends that its investigation procedures apply equally to all
complainants and respondents regardless of gender. (Instrument No. 83 at 8).
Plaintiff fails to raise a genuine issue of material fact under the erroneous outcome theory,
which requires that there is an erroneous outcome and that gender bias is the motivating factor
behind the erroneous outcome. Klocke, 938 F.3d at 210. Pursuant to the University’s Code’s
provision II. B.1.a Plaintiff was alleged to have engaged in “reckless” behavior when he failed □□
adequately disclose his herpes diagnosis. (Instrument No. 63 at 33). Contrary to Plaintiff's
_ assertions, the record before the Court demonstrates that the University considered Roe’s
credibility and inconsistent statements. (Instrument No. 63 at 154-156). Dean Hutchinson’s appeal
decision explicitly addressed Plaintiff’s allegation that the University did not consider Roe’s
credibility and inconsistent statements. Jd. Additionally, Dean Hutchinson found that Plaintiffs
text messages “alone” were sufficient evidence to support Garza’s finding that Plaintiff violated -
the University’s Code. Jd. The record indicates Plaintiff admitted that he did not inform or
inadequately informed Roe of his herpes status. (Instrument No. 63 at 142-146). Plaintiff and Roe
discussed Roe’s herpes outbreak and Plaintiffs disclosure of his status via text message. The text
messages state:
Roe: So [Plaintiff]. About the bumps and [...] [My friend] and I think it's herpes...
and there's no possible way I could've gotten it from anyone else but you. And
you did mention to me that you had a run-in senior year maybe? I' m going to get
myself check hopefully tomorrow, but [Plaintiff] I most likely got it from u, which
means u have dormant herpes. So you need to wear protection at all costs [.] We
don't know yet [.]
Plaintiff: Sorry Im busy with my morn. And I think it's that too, just looks similar.
But yeah J had ‘it a long time ago. And what does dormant mean[.] Would you be
17
comfortable showing me what it looks like?
Roe: Once u have herpes you have it for life, you know that right[.] It never goes
away. Ever there's not a cure[.] Um I could try to take pictures[.]
Plaintiff: Yeah I do know that. I have the first one. I could explain on the phone[.]
Roe: So you know you've had herpes this entire time and you didn't tell me until
now[.]
Plaintiff: Yes[.]
Roe: Why [Plaintiff] Why You gave it to me Why [Plaintiff][7]
Plaintiff: In all honesty I didn't think about that. I'm apologize. All I can say is
that. And words won't help on my side.
(Instrument No. 63 at 22-27, 144). Thus, the evidence reveals that Plaintiff believed he had herpes
“a long time ago” and told Roe that he had a “run-in” his “senior year” of high school. Jd. at 144-
146. Additionally, in the same conversation, Plaintiff explicitly answered “Yes” when asked by
Roe “So you know you’ve had herpes this entire time and you did not tell me until now.”
(Instrument No. 63 at 144). When asked by Garza to explain his response to Roe’s question,
Plaintiff stated, “If I knew her sole purpose was to incriminate me, obviously I wouldn’t have
answered 'yes.' But to me, we had already talked about it, and you're [Roe] still giving me all these
questions. I just answered her questions.” (Instrument No. 63 at 145). Plaintiff's text messages and
explanations reveals that he was aware that he continued to have herpes after his outbreak or
diagnosis in high school. Additionally, Plaintiff acknowledged that he was answering Roe’s
question. Plaintiff's own acknowledgment coupled with his apology indicate that he did not
sufficiently disclose that he had herpes, an incurable disease. Thus, his admission establishes that
he engaged in “reckless action.” Therefore, the Court finds that there was not an erroneous
outcome.
Additionally, Plaintiff failed to present evidence that his gender was the motivating factor
behind the University’s decision. In the Fifth Circuit, gender is a motivating factor when the
plaintiff identifies “evidence that gender bias affected [the] investigation and conclusion.” Klocke, □
18
938 F.3d at 211. Plaintiff proffered evidence of bias focuses on whether Roe engaged in safe
sexual practices and if she had a responsibility to educate herself on the risks of having unprotected
sex. (Instrument No. 79 at 25). Roe’s sexual history and knowledge about the risks of having
unprotected sex is irrelevant and does not demonstrate that Plaintiff's gender affected the
University’s investigation or decision regarding the complaint filed against him. Plaintiff's
allegation that the University failed to interview another student regarding whether Roe gave a
third student herpes—is irrelevant to the University’s Code’s Section H.B.1.a violation, which
Plaintiff was charged with and found to have violated. Jd. Garza found Plaintiff engaged in “a
reckless action from which mental or bodily harm could result to another person.” (Instrument No.
63 at 142-143). Additionally, Plaintiff fails to proffer any evidence of a report against Roe that he
or someone else filed alleging the same conduct he was accused of by her. Instead, the record
indicates that Roe filed a report against Plaintiff. (Instrument No. 63 at 21). Thus, the investigation
and conclusion focused on whether or not Plaintiff violated the University’s Code. The evidence
demonstrates that the reason for the investigation was because Roe made a report and not because
Plaintiff was a male. The University’s April 17, 2018 decision letter provided a number of non-
discriminatory reasons explaining why the University concluded that Plaintiff violated the Code.
(Instrument No. 63 at 142-148). The letter states in part:
If one is to read the text messages between you and [Roe] at face value, without any other
information or context, it appears that you are admitting to having unprotected sex with her
while knowing that you are a carrier of an incurable sexually transmitted disease that can
be transferred to your partner by unprotected: sex, and failing to disclose that information
to her.
(Instrument No. 63 at 146). Thus, the University’s decision was based on unrebutted evidence
about their encounter found in the text messages between them and not his gender.
19
Moreover, the record also indicates that the University had a reasonable and non-
discriminatory reason for prohibiting Plaintiff from its dorms and removing him from his classes.
. Plaintiff chose not to participate in the University’s Police’s investigation. (Instrument No. 63 at
37). Plaintiff also chose not to attend the University’s SJP’s February 14, 2018 meeting.
(Instrument No. 63 at 32-33). The University’s February 14, 2018 letter written by Dean Ostdiek
indicates that Plaintiff was placed on an interim suspension, “based on the information available
to [Dean Ostdiek] right now, including [Plaintiffs] text messages to [Roe] and [Plaintiffs] choice
not to participate in Rice processes[.] There is no indication that [Plaintiff] will change this
behavior going forward.” (Instrument No. 63 at 37). Thus, Plaintiffs interim suspension was in
part based on his lack of participation in the University’s investigation.
Plaintiff's assertions about the disciplinary procedural process are also not evidence of
gender bias. Plaintiff has not alleged that the University failed to follow the procedures outlined
in its Code. (Instrument No. 79). Plaintiff also does not allege that the lack of a hearing was
conducted or that his attorney was not allowed to participate, because Plaintiff is a male. Instead
Plaintiff appears to express his dissatisfaction with the investigation procedures. Additionally, the
record indicates that Plaintiff's then-attorney served as Plaintiff's support person and made a
number of comments during SJP’s Garza and Plaintiff's March 2018 meeting. Thus, Plaintiff has
failed to establish that gender bias was the motivating factor. Klocke v. Univ. of Texas at Arlington,
938 F.3d 204, 212 (Sth Cir. 2019), cert. denied, 140 S. Ct. 1268 (2020)(finding that where a
university’s disciplinary decisions were reasonable and justifiable on non-discriminatory grounds,
an inference of gender bias in these circumstances would be speculative and not evidence of the
erroneous outcome theory). Viewing the evidence, most favorable to the non-movant, the Court
finds Plaintiff has not presented a fact issue on his erroneous outcome claim.
20
2.
Plaintiff alleged that the University treated him differently than Roe, his accuser because
he is a man. (Instrument No. | at 28). The University argues that Plaintiff cannot establish a Title
IX selective-enforcement claim because there is no evidence that it treated a female student
similarly situated to Plaintiff better than it treated him. (Instrument No. 61 at 9-10).
To establish a selective enforcement claim Plaintiff must “allege that either [disciplinary]
punishment or the decision to initiate enforcement proceedings was motivated by gender bias.”
Klocke v. Univ. of Texas at Arlington, 938 F.3d 204, 213 (5th Cir. 2019), cert. denied, 140 S. Ct.
1268 (2020).
Plaintiff argues that there is “selective enforcement of [U]niversity procedures to students
of different sexes.” (Instrument No. 79 at 26). Plaintiff makes a number of assertions about the
investigation. Plaintiff asserts that during the investigation he informed Garza that Roe had
unprotected sex with another student, failed to inform this student that she had herpes, and
transmitted herpes to this student. (Instrument No. 79 at 26). Plaintiff contends that Garza refused
to interview the other student and hold Roe accountable. Jd. Plaintiff asserts that unlike himself,
the University did not tell Roe to educate herself about the disease in order to sufficiently inform
her sexual partners. Jd. Plaintiff further contends unlike himself, the University officials did not
discuss whether Roe posed a danger to other students. Jd.
The Court notes Plaintiff makes a number of assertions without any citation to the record.
(Instrument No. 79 at 26). As discussed above, the Court is not required court “sift through the
record in search of evidence to support a party’s opposition to summary judgment.” Jackson v.
Cal-Western Packaging Corp., 602 F.3d 374, 379-80 (Sth Cir. 2010); Malacara v. Garber, 353
F.3d 393, 405 (Sth Cir. 2003). Even if Plaintiff had proffered evidence and cited to the record to
21
support his selective enforcement claim’s assertions, he would fail to raise a material fact issue. In
the Fifth Circuit, a selective enforcement claim is established by evidence that the disciplinary
punishment or decision to initiate enforcement proceedings was motivated by gender bias. Klocke,
938 F.3d at, 213. Plaintiff’s response fails to address the Fifth Circuit’s standard. (Instrument No.
79 at 26).
Additionally, the record before the Court does not support the contention that the University
selectively enforced its procedures. Roe contacted SJP and filed a formal complaint against
Plaintiff. (Instrument No. 63 at 21). No one filed a complaint against Roe alleging that she failed
to disclose that she had herpes. (Instrument No. 83 at 4). Although the University handbook
provides a number of sanctions including suspension and expulsion, Plaintiff received social
rustication for his violation. (Instrument No. 63 at 148). Nothing in the record indicates that
Plaintiff received a harsher punishment because he was a male or that female students receive a
lighter punishment. Additionally, Plaintiff has not presented any statistical or other evidence of
gender bias. Klocke, 938 F.3d at 213 (analyzing a selective-enforcement claim based on statistical
information). Thus, the Court finds that Plaintiff has not presented a fact issue on his selective
enforcement claim.
3.
Plaintiff alleged that the University’s decision to discipline him stems from its archaic
assumptions that men in consensual, sexual relationships know more than women and have a
greater responsibility to educate women about the risks of having unprotected sex with someone
who has herpes. (Instrument No. 1 at 27). The University argues that Plaintiff cannot establish a
Title IX archaic assumption claim because there is no evidence to support his claim. (Instrument
No. 61 at 12).
22
Under the archaic assumption theory, a plaintiff must establish that a university’s decisions
were based on “archaic assumptions” or “outdated attitudes” about the roles or behavior of men
and women. Pederson vy. La. St. Univ., 213 F.3d 858, 880-882 (Sth Cir. 2000)(holding that a
university persisted in intentional and differential treatment of women athletes when it declined to
field women’s fast pitch softball and soccer teams in the athletic program based on the university’s
outdated attitudes and archaic assumptions about women’s abilities and interests in sports).
Decisions and statements based on “remarkably outdated,” “archaic,” and “outmoded”
assumptions will demonstrate that university “intended to treat” one “differently,” when based on
gender. Jd. at 881 (finding evidence of the archaic assumption theory when a university official
stated that soccer is a “more feminine sport” and that “the women might get hurt” in fast-pitch
softball).
Plaintiff argues that the University’s actions were based on archaic assumptions about
gender. (Instrument No. 79 at 26-27). Plaintiff asserts that the University “assum[ed]” that “an
adult female college junior or senior is incapable of understanding the risks of unprotected sex
without the male educating her is part of such archaic thinking.” (Instrument No. 79 at 27). Plaintiff
contends that the University’s refusal “to acknowledge that Roe had any accountability for her
own action . . .is remarkably outdated.” (Instrument No. 79 at 27). Additionally, Plaintiff argues
that the University’s refusal to hold Roe “accountable for the same conduct is outdated, archaic, □
and outmoded.” Jd. Plaintiff proffers Dean Ostdiek’s actions and statement as evidence of the
University’s archaic assumptions. Jd. Plaintiff argues that Dean Ostdiek’s decision to impose a
“banishment” of Plaintiff “without soliciting his response” for his conduct while stating that Roe’s
“identical conduct” would warrant “counseling” “because this is a very troubling time with a lot
of life-changing decisions she has to make.” Jd.
23
The Court finds that Plaintiff failed to proffer evidence of a material fact issue. The record
does not support Plaintiffs contentions that he was banished without solicitation of his response
to Roe’s complaint. The Court assumes that Plaintiff is referring to his interim suspension as the
“banishment.” First, the record indicates that on February 14, 2018, Dean Ostdiek placed Plaintiff
on an interim suspension from the University in part because Plaintiff chose not to participate in
the investigation process. (Instrument No. 63 at 37). On February 13, 2018, the University’s SJP
office informed Plaintiff that he needed to meet with Garza on February 14, 2018 at 11 a.m. to
discuss a disciplinary matter. (Instrument No. 63 at 31). In her declaration, Garza stated that
Plaintiff did not respond to her email on February 13, 2018. (Instrument No. 63 at 5, 31). Garza
indicated that on February 14, 2018, she received a call from Brett Podolsky who said he was
Plaintiff's attorney and that Plaintiff would not be attending the 11:00 a.m. meeting. Jd. Plaintiff
also sent Garza an email, stating that he would like to reschedule the meeting, because he wanted
to obtain legal advice and be more prepared for the meeting. (Instrument No. 63 at 32).
Additionally, in the same email, Plaintiff asked if he could at least have one week to prepare. Id.
Thus, the evidence demonstrates that Plaintiff was not banished without solicitation of his
response. Instead, the evidence reveals that the University solicited Plaintiff's response when
_ Garza emailed him to discuss Roe’s the complaint at the meeting scheduled for February 14, 2018.
Plaintiff declined to attend the meeting. The University then placed Plaintiff on an interim
suspension. Thus, Plaintiff's response mischaracterizes the University’s decisions and initial
investigatory actions. Additionally, Plaintiff repeatedly alleges that Roe engaged or intended to
engage in conduct that is “identical” to the conduct the University charged him for. However,
Plaintiff has not proffered any evidence of a report filed against Roe for the same conduct he was
alleged and found to have committed. Moreover, the record is devoid of any evidence that indicates
24
that the University placed a different duty on male students to disclose the risks of unprotected sex
then it does on female students. Plaintiff does not point to any statements that the University made
to demonstrate that males had a different duty to disclose their herpes status. Thus, Plaintiff cannot
establish that the University intentionally discriminated against him based on his gender. Thus, the
Court finds that a t that Plaintiff has failed to raise a fact issue to establish his claim under the
archaic assumptions’ theory.
Accordingly, the University’s Motion for Summary Judgment on Plaintiffs discrimination
claim under Title IX is GRANTED. (Instrument No. 61).
B.
Plaintiff brings a breach of express and implied contract claim and alleges that the
University breached its disciplinary process. (Instrument No. | at 30). Plaintiff alleges that the
University created a contract with Plaintiff when he “accepted an offer of admission” and “paid
the tuition and fees.” Jd. The University argues that it is entitled to summary judgment on the
breach of contract claim because Plaintiff cannot establish that a contract exists or that there was
a breach. (Instrument No. 61 at 12).
Because the Court is sitting in diversity and this is a breach of contract claim, Texas law
governs Plaintiffs claims. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
To establish a breach of contract, whether expressed or implied, a plaintiff must prove (1)
the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach.
See Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 758 (Tex. App. 2000); Villarreal v.
Wells Fargo Bank, N.A., 814 F.3d 763, 767 (Sth Cir. 2016). The difference between contracts
formed through express promises and those formed through implied promises is the means by
25
which the contracts are formed. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 850 (Tex. 2009). In an implied contract, a contract is formed when there is mutual
assent that can be “inferred from the circumstances.” Jd. citing Haws & Garrett Gen. Contractors,
Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972).
The parties dispute whether there is a valid contract. The University argues that Plaintiff
cannot establish that there was a valid contract between the University and Plaintiff. (Instrument
No. 61 at 13). The University contends that the University’s Code expressly states that it does not
create contractual rights. (Instrument No. 61 at 13). Plaintiff contends that his acceptance of
admission, payment of fees, and the University’s policies providing that students are to have a fair
and impartial disciplinary process demonstrates that the University created an express or implied
contract. (instrument No. 79 at 27). Additionally, Plaintiff contends Texas law recognizes an
implied or expressed contract between a private institution and its students. Jd. Plaintiff fails to
cite any Texas case law to support his claim. Jd.
The Court finds that Plaintiff cannot establish a breach of contract claim. Where there is
an expressed disclaimer of a contract, it cannot be inferred that a party intended to be bound by a
policy. Tobias v. University of Texas at Arlington, 824 S.W.2d 201, 211 (Tex. App. —Fort Worth
1991), cert. denied, 506 U.S. 1049 (1993) (finding an express disclaimer of a contract negates the
inference of any intent to be bound by the university catalog). The record before the Court indicates
that the University’s Code states that “The procedures used in a University Court or College Court
meeting or by SJP are not those used in court cases and are not intended to create contractual rights,
including any rights to due process as that phrase is used in courts of law.” (Instrument No. 63 at
80). Thus, the Court finds that the University’s Code expressly disclaims that it provides or creates
a contract.
26
Plaintiff is correct that Texas Courts have found a contract to exist, where a private
university impliedly agreed to provide an educational opportunity and confer the appropriate
degree in consideration for a student’s agreement to successfully complete degree requirements,
abide by university guidelines, and pay tuition. Southwell v. Univ. of Incarnate Word, 974 S.W.2d
351,356 (Tex. App. 1998). However, even ifthe Court were to find that an implied contract existed
between the parties, Plaintiff cannot establish that the University breached this contract when it
conducted its disciplinary investigation. Law v. William Marsh Rice Univ., 123 S.W.3d 786, 793
(Tex. App. 2003) (finding no evidence of breach of the implied contract of a private school
educational opportunity where, the plaintiff alleged that there was a breach of the disciplinary
process).
Additionally, Plaintiff argues there is a breach of contract because.he did not receive any
procedural guarantees such as a right to present witnesses, experts, evidence, and confront and
cross-examine his accuser. (Instrument No. 79 at 28). To support his contention, Plaintiffs cites
two cases in the District of Connecticut. (Instrument No. 79 at 28). The Court reviewed the cases
cited by Plaintiff. In both cases those courts found that there was evidence or sufficient allegations
of a breach of contract where the plaintiff alleged “specific” promises in the university’s policies
were breached. Doe v. Quinnipiac University, 403 F. Supp. 3d 643, 667-72 (D. Conn 2019);
Johnson y. Schmitz, 119 F. Supp. 2d 90, 96-97 (D. Conn. 2000). However, this is not the case here.
Plaintiff does not specifically allege or identify any provision of the Code or another University
policy that was breached. Instead, Plaintiff appears to be arguing that the Code itself is inadequate,
because he was not afforded his preferred disciplinary process. As discussed above, the Code
expressly disclaims that it provides students with a contractual right to a certain disciplinary
process. Plaintiff has not proffered any evidence and there is none in the record that demonstrates
27
that the University breached any contract. Thus, the Court finds that Plaintiff has failed to raise a
fact issue to establish his breach of contract claim.
Accordingly, the University’s Motion for Summary Judgment on Plaintiffs breach of
contract claim is GRANTED. (Instrument No. 61).
C.
The University also moves for summary judgment on the basis that Plaintiff failed to
provide mandatory computations for damages and thus lacks evidence of his damages arising from
his discipline. (Instrument No. 61 at 15). Plaintiff contends that it informed the University of his
damages even if Plaintiff did not use a specific calculation. However, given that the Court has
found that Plaintiff claims fail on the merits, it need not resolve the issue of damages.
V.
For the foregoing reasons, IT IS HEREBY ORDERED that the University’s Motion for
Summary Judgment is GRANTED. (Instrument No. 61).
The Clerk shall enter this Order and provide a copy to all parties.
SIGNED on this the | Ale day of September, 2021, at Houston, Texas.
UNITED STATES DISTRICT JUDGE
28