Brandon Austin v. University of Oregon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRANDON AUSTIN, No. 17-35559

Plaintiff-Appellant,

D.C. Nos.

and 6:15-cv-02257-MC

6:16-cv-00647-MC

DOMINIC ARTIS; DAMYEAN

DOTSON,

Plaintiffs,

v.

UNIVERSITY OF OREGON; SANDY

WEINTRAUB; CHICORA MARTIN;

ROBIN HOLMES; MICHAEL R.

GOTTFREDSON, all in their

individual capacities only,

Defendants-Appellees.

2 AUSTIN V. UNIVERSITY OF OREGON

DOMINIC ARTIS; DAMYEAN No. 17-35560

DOTSON,

Plaintiffs-Appellants, D.C. Nos.

6:15-cv-02257-MC

and 6:16-cv-00647-MC

BRANDON AUSTIN,

Plaintiff, OPINION

v.

UNIVERSITY OF OREGON; SANDY

WEINTRAUB; CHICORA MARTIN;

ROBIN HOLMES; MICHAEL R.

GOTTFREDSON, all in their

individual capacities only,

Defendants-Appellees.

Appeals from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Argued and Submitted December 6, 2018

Seattle, Washington

Filed June 4, 2019

Before: Susan P. Graber, M. Margaret McKeown,

and Morgan Christen, Circuit Judges.

Opinion by Judge McKeown

AUSTIN V. UNIVERSITY OF OREGON 3

SUMMARY *

Civil Rights

The panel affirmed the district court’s dismissal of a

complaint brought by three male student athletes against the

University of Oregon alleging the University discriminated

against them on the basis of their sex in violation of Title IX

and violated their due process rights in connection with the

University’s sexual misconduct proceedings.

Following the Supreme Court’s guidance in

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the panel

held that Federal Rule of Civil Procedure 8(a), not the

evidentiary presumption set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), provides the

appropriate standard for reviewing, at the pleading stage, a

motion to dismiss in a Title IX case.

The panel affirmed the district court’s dismissal of the

Third Amended Complaint because, putting aside mere

conclusory allegations, the complaint failed to make any

claims of discrimination on the basis of sex cognizable under

Title IX. The panel rejected plaintiffs’ three theories under

Title IX: selective enforcement, erroneous outcome, and

deliberate indifference. The panel determined that plaintiffs

failed to sufficiently allege that the decision to discipline

them was grounded in gender bias or that the administration

or outcome of the disciplinary proceedings were flawed due

to the student athletes’ sex. The panel further determined

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 AUSTIN V. UNIVERSITY OF OREGON

that plaintiffs waived their “deliberate indifference” theory

of Title IX liability.

The panel held that the student athletes’ due process

claims failed because they received constitutional due

process through the University’s disciplinary proceedings.

The panel assumed, without deciding, that the student

athletes had property and liberty interests in their education,

scholarships, and reputation as alleged in the complaint.

Nonetheless, the panel held that the student athletes received

the hallmarks of procedural due process: notice and a

meaningful opportunity to be heard.

COUNSEL

Alan Carl Milstein (argued), Sherman Silverstein Kohl Rose

& Podolsky P.A., Moorestown, New Jersey; Marianne

Dugan, Eugene, Oregon; for Plaintiff-Appellant Brandon

Austin.

Brian I. Michaels (argued), Eugene, Oregon, for Plaintiffs-

Appellants Dominic Artis and Damyean Dotson.

Kevin Scott Reed (argued), Office of the General Counsel,

University of Oregon, Eugene, Oregon; P.K. Runkles-

Pearson, Miller Nash Graham & Dunn LLP, Portland,

Oregon; for Defendants-Appellees.

AUSTIN V. UNIVERSITY OF OREGON 5

OPINION

McKEOWN, Circuit Judge:

These companion cases concerning campus sexual

assault raise an issue of first impression in this circuit—

whether the McDonnell Douglas 1 evidentiary presumption

applies at the pleading stage in a Title IX case. Following

the Supreme Court’s explanation of Title VII’s pleading

requirements in Swierkiewicz v. Sorema N.A., 534 U.S. 506

(2002), we conclude that Federal Rule of Civil

Procedure 8(a), not McDonnell Douglas, applies at the

motion to dismiss stage. On this basis, we affirm the district

court’s dismissal of the Third Amended Complaint because,

putting aside mere conclusory allegations, the complaint

fails to make any claims of discrimination on the basis of sex

cognizable under Title IX. We also affirm the dismissal of

the remaining due process and state law claims.

BACKGROUND

Brandon Austin, Dominic Artis, and Damyean Dotson

(collectively, the “student athletes”) were basketball players

on scholarship at the University of Oregon (the

“University”) in 2014. In March 2014, a female student

accused the men of forcing her to engage in nonconsensual

sex at an off-campus apartment. She reported the alleged

sexual assault to the Eugene police department within a few

days. When details of the alleged assault became public, in

part because the local news published the police report in

full, the campus erupted in protest. Although the Lane

County District Attorney ultimately decided not to prosecute

1

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

6 AUSTIN V. UNIVERSITY OF OREGON

the student athletes, the University proceeded with a formal

disciplinary process.

Central to this case is the University of Oregon Student

Conduct Code in effect at the time, which defined “sexual

misconduct” to include penetration without explicit consent.

(Other types of sexual activity contemplated by the Code are

not at issue here.) The Code also defined “explicit consent”

as “voluntary, non-coerced and clear communication

indicating a willingness to engage in a particular act,”

including “an affirmative verbal response or voluntary acts

unmistakable in their meaning.” See Or. Admin. R. 571-

021-0105(30), 571-021-0120(3)(h) (2006) (“Student

Conduct Code”), available at http://policies.uoregon.edu/

vol-3-administration-student-affairs/ch-1-conduct/student-

conduct-code.

The student athletes had the option to choose between

two types of disciplinary hearings: a panel hearing or an

administrative conference. They opted for the simpler, more

streamlined administrative conference. According to the

complaint and the University’s Special Choice of Resolution

Form, the administrative conference procedure included

notice of the character of the accusations against each

student athlete, a summary description of the types of

processes available, and the range of possible penalties;

access to the case file; the opportunity to review and respond

to the investigative report including witness interviews;

representation by an advisor, including counsel; and a

neutral administrator as a hearing officer. See Or. Admin.

R. 571-021-0205(1) (2006). The student athletes claim that

the hearings deprived them of constitutionally required

procedural safeguards.

The University’s Director of Student Conduct &

Community Standards oversaw the hearing and found the

AUSTIN V. UNIVERSITY OF OREGON 7

student athletes responsible for sexual misconduct because

they had violated the Student Conduct Code by “engaging in

penetration without explicit consent.” The University

suspended the student athletes for at least four years and until

the female student is no longer enrolled at the University (but

not longer than ten years). It also declined to renew their

scholarships.

The student athletes brought this action against the

University and various administrators, alleging several

causes of action, including Title IX claims based on sex

discrimination and due process violations. The district court

dismissed the Third Amended Complaint with prejudice.

DISCUSSION

I. Rule 8(a) Pleading Standard in Swierkiewicz

Despite the parties’ extensive briefing, we need look no

further than the Supreme Court’s guidance in Swierkiewicz

to divine that Rule 8(a) 2 provides the appropriate standard

for reviewing a Rule 12(b)(6) motion to dismiss under

Title IX. Swierkiewicz, 534 U.S. at 510–11. The Sixth

Circuit is in accord. See Doe v. Baum, 903 F.3d 575, 580–

81 (6th Cir. 2018) (applying Rule 8(a) to a Title IX claim

without discussing McDonnell Douglas).

In Swierkiewicz, the Supreme Court reiterated that “[t]he

prima facie case under McDonnell Douglas . . . is an

2

Rule 8(a) provides: “[a] pleading that states a claim for relief must

contain: (1) a short and plain statement of the grounds for the court’s

jurisdiction . . .; (2) a short and plain statement of the claim showing that

the pleader is entitled to relief; and (3) a demand for the relief sought

. . . .”

8 AUSTIN V. UNIVERSITY OF OREGON

evidentiary standard, not a pleading requirement.” 3 534 U.S.

at 510. Under the familiar McDonnell Douglas evidentiary

presumption, once a plaintiff pleads a prima facie case of

discrimination, the burden of proof shifts to the non-moving

party to show non-discriminatory intent. See McDonnell

Douglas, 411 U.S. at 802. The framework “is a tool to assist

plaintiffs at the summary judgment stage so that they may

reach trial.” Costa v. Desert Palace, Inc., 299 F.3d 838, 855

(9th Cir. 2002) (en banc), aff’d, 539 U.S. 90 (2003).

McDonnell Douglas thus sets out “the order and

allocation of proof” in a Title VII case. 411 U.S. at 800. But,

the

Court has never indicated that the

requirements for establishing a prima facie

case under McDonnell Douglas also apply to

the pleading standard that plaintiffs must

satisfy in order to survive a motion to

dismiss. For instance, we have rejected the

argument that a Title VII complaint requires

greater “particularity,” because this would

“too narrowly constric[t] the role of the

pleadings.”

Swierkiewicz, 534 U.S. at 511 (alteration in original)

(quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

273, 283 n.11 (1976)). The Court went on to explain that,

“[c]onsequently, the ordinary rules for assessing the

3

Swierkewicz was a Title VII case. We apply the principles of Title

VII cases to Title IX claims. See, e.g., Franklin v. Gwinnett Cty. Pub.

Sch., 503 U.S. 60, 75 (1992) (relying on a Title VII case to determine

whether sexual harassment qualified as discrimination under Title IX);

Emeldi v. Univ. of Or., 698 F.3d 715, 724 (9th Cir. 2012) (applying the

framework from Title VII cases to a Title IX retaliation claim).

AUSTIN V. UNIVERSITY OF OREGON 9

sufficiency of a complaint apply[:] . . . . The liberal notice

pleading of Rule 8(a) is the starting point of a simplified

pleading system, which was adopted to focus litigation on

the merits of a claim.” Id. at 511, 514.

Without citing Swierkiewicz, the Second Circuit reached

the opposite result in Doe v. Columbia University, 831 F.3d

46, 55–56 (2d Cir. 2016), and applied the McDonnell

Douglas presumption at the motion to dismiss stage in a Title

IX case. The court did reference a previous Title VII case in

which it invoked the McDonnell Douglas presumption at the

pleading stage. Id. at 54–55 (analyzing Littlejohn v. City of

New York, 795 F.3d 297, 310 (2d Cir. 2015)). In Littlejohn,

the Second Circuit recognized that Swierkiewicz eliminated

the possibility of a heightened pleading standard for Title

VII claims, but then construed Swierkiewicz as introducing a

lower pleading standard. See Littlejohn, 795 F.3d at 309

(“Reading Swierkiewicz on its face, it appears to have meant

that a Title VII plaintiff is not required to plead facts

supporting even a minimal inference of discriminatory

intent.”). This led the court to reason that the McDonnell

Douglas presumption informs the application of Ashcroft v.

Iqbal, 556 U.S. 662 (2009), in Title VII cases. See

Littlejohn, 795 F.3d at 310 (“We conclude that Iqbal’s

requirement applies to Title VII complaints of employment

discrimination, but does not affect the benefit to plaintiffs

pronounced in the McDonnell Douglas quartet.”). We read

the Second Circuit’s application of the McDonnell Douglas

presumption at the pleading stage as contrary to Supreme

Court precedent, and we decline to embrace that approach. 4

4

We emphasize that Rule 8(a)’s liberal pleading standard is lenient

enough to allow meritorious discrimination claims to proceed while

preserving the gatekeeping function of pleading standards. This opinion

10 AUSTIN V. UNIVERSITY OF OREGON

II. Application of Rule 8(a) to the Student Athletes’ Title

IX Claims

It is well established that, under Rule 8(a), a plaintiff

need only provide “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). All factual allegations are

accepted as true, and all reasonable inferences must be

drawn in favor of the plaintiff. See Iqbal, 556 U.S. at 678

(noting that this standard is not a “probability requirement,”

but “asks for more than a sheer possibility that a defendant

has acted unlawfully”). The standard provides for liberal

treatment of a plaintiff’s complaint at the pleading stage.

Despite three efforts to meet this pleading standard and

state a Title IX claim, 5 the student athletes failed to do so.

What is missing for each theory of liability are sufficient,

nonconclusory allegations plausibly linking the disciplinary

action to discrimination on the basis of sex. See Yusuf v.

Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994) (holding that

a plaintiff can allege multiple theories for his or her claim,

but under any theory “wholly conclusory allegations [will

not] suffice for purposes of Rule 12(b)(6)”).

should in no way be interpreted as requiring a heightened pleading

standard for Title IX claims.

5

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).

Title IX applies to “all of the operations of . . . a college, university, or

other postsecondary institution, or a public system of higher education.”

Id. § 1687.

AUSTIN V. UNIVERSITY OF OREGON 11

The student athletes advance three theories under

Title IX: selective enforcement, erroneous outcome, and

deliberate indifference. The essence of the selective

enforcement theory is that the decision to discipline the

student athletes was “grounded” in gender bias. But the

student athletes fail to allege how this is so. The complaint

recites such facts as the content of the University president’s

speech and the campus protests, but does not make any

plausible link connecting these events and the University’s

disciplinary actions to the fact that the student athletes are

male. See Yusuf, 35 F.3d at 715 (“[A selective enforcement]

claim asserts 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.”).

Just saying so is not enough. A recitation of facts

without plausible connection to gender is not cured by labels

and conclusory statements about sex discrimination. See

Twombly, 550 U.S. at 556 (“[A] plaintiff’s obligation to

provide the grounds of his entitlement to relief requires more

than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do . . . . ” (internal

quotations mark and alterations omitted)). Compare

Swierkiewicz, 534 U.S. at 514 (detailing specific allegations

in a discrimination case that linked a wrongful termination

to age and national origin).

The student athletes also allege that, because the

University disciplines male students for sexual misconduct

but never female students, it is biased against men. But this

allegedly disparate impact, even assuming it is true, claims

too much. Significantly, the complaint does not claim that

any female University students have been accused of

comparable misconduct, and thus fails to allege that

12 AUSTIN V. UNIVERSITY OF OREGON

similarly situated students—those accused of sexual

misconduct—are disciplined unequally. 6 The district court

also recognized the lack of parallelism and reasoned

“[s]imply because enforcement is asymmetrical does not

mean that it is selectively so.” We agree. Without

nonconclusory allegations that the male students were

treated any differently than similarly situated female

students based on sex, the selective enforcement theory fails.

The erroneous outcome theory also fails because the

student athletes do not articulate any basis to discern that the

administration or outcomes of the disciplinary proceedings

were flawed due to the student athletes’ sex. See Yusuf,

35 F.3d at 715. Even if the outcome of the administrative

conference procedure was erroneous, the complaint is

missing any factual allegations that show that sex

discrimination was the source of any error.

Lastly, the student athletes advance a “deliberate

indifference” theory of Title IX liability, but only make

passing reference to it in one line of a footnote. Without

meaningful briefing on this issue, we consider the argument

waived. See United States v. Kama, 394 F.3d 1236, 1238

(9th Cir. 2005) (“Generally, an issue is waived when the

appellant does not specifically and distinctly argue the issue

in his or her opening brief.”).

The district court previously dismissed the student

athletes’ Title IX claims with leave to amend and yet, after

two efforts, they still could not allege additional facts to

6

We agree with the district court that the only incident cited in the

complaint involving an “accused” female student—threatening another

student with a knife—did not constitute sexual misconduct.

AUSTIN V. UNIVERSITY OF OREGON 13

sufficiently plead these claims. We affirm the district court’s

dismissal of the Title IX claims with prejudice.

III. Claims for Violations of Due Process

The student athletes’ due process claims fail because

they received constitutional due process through the

University’s disciplinary proceedings. 7 See Mathews v.

Eldridge, 424 U.S. 319, 335 (1976). Under Mathews, we

balance three factors: (1) the private interests subjected to

official action; (2) the risk of an erroneous outcome and the

“probable value, if any, of additional or substitute procedural

safeguards”; and (3) the governmental interest involved,

including fiscal and administrative concerns. See id. at 334–

35. Essentially, “some form of hearing is required before an

individual is finally deprived of a property interest.” Id.

at 333.

We assume, without deciding, that the student athletes

have property and liberty interests in their education,

scholarships, and reputation as alleged in the complaint.

Nonetheless, they received “the hallmarks of procedural due

process”: notice and a meaningful opportunity to be heard.

Ludwig v. Astrue, 681 F.3d 1047, 1053 (9th Cir. 2012)

(quoting Guenther v. Comm’r, 889 F.2d 882, 884 (9th Cir.

1989) (order)). Notice is not an issue here and nothing in the

allegations supports a claim that the student athletes did not

receive a meaningful hearing with the right to be heard.

Importantly, they were represented by counsel and given a

choice of a Special Administrative Conference or a Panel

Hearing with a panel of students, faculty, and staff and the

option to appeal. They signed a Special Choice of

7

Because there were no due process violations, we need not reach

the issue of qualified immunity.

14 AUSTIN V. UNIVERSITY OF OREGON

Resolution Form and chose the Special Administrative

Conference. In doing so, they removed the possibility of

expulsion and negotiated away a potential “negative

notation” on their academic record, replacing it with a

“notation of finding of Code violation – unspecified.”

Because the student athletes were represented by counsel

and negotiated the scope of sanctions, they can hardly be

heard to complain about the administrative hearing’s

procedural safeguards. Under Mathews, a hearing need not

include every procedure possible, nor is one entitled to a

hearing of one’s own design. 424 U.S. at 333 (“The

fundamental requirement of due process is the opportunity

to be heard ‘at a meaningful time and in a meaningful

manner.’” (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965))). On these facts, the student athletes were not denied

due process.

Finally, we credit the University’s focus on encouraging

students’ personal integrity and cooperative (rather than

coercive) interpersonal behavior, interest in providing an

environment free of sexual misconduct, and setting up a

disciplinary system that provides students an opportunity to

be heard. We affirm the district court’s dismissal of the due

process claims. We also affirm the dismissal of the state law

claims for the reasons stated in the district court’s orders

dismissing the Third and Second Amended Complaints.

AFFIRMED.