Doe v. William Marsh

Case: 21-20555 Document: 00516747509 Page: 1 Date Filed: 05/11/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

May 11, 2023

No. 21-20555

Lyle W. Cayce

Clerk

John Doe,

Plaintiff—Appellant,

versus

William Marsh Rice University, doing business as Rice

University,

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-2985

Before Stewart, Elrod, and Graves, Circuit Judges.

Carl E. Stewart, Circuit Judge:

John Doe appeals the district court’s summary judgment in favor of

William Marsh Rice University d/b/a Rice University (hereinafter, “Rice”

or “the University”) dismissing his claims under Title IX of the Educational

Amendments Act of 1972 (“Title IX”) as well as his state law breach-of-

contract claims. Because our review of the record reveals that disputed issues

of material fact remain as to Doe’s Title IX claims, we AFFIRM in part,

REVERSE in part, and REMAND for further proceedings consistent with

this opinion.

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I. FACTUAL & PROCEDURAL BACKGROUND

In the Fall of 2017, student-athlete Doe began his freshman year at

Rice on a full-ride football scholarship. Shortly thereafter, Doe met Jane Roe,

a fellow student at Rice who was in her junior year at the time. Roe and Doe

began dating, discussed their sexual histories including that Doe had

contracted herpes and chlamydia in high school, and ultimately engaged in

several consensual, unprotected sexual encounters before they ended their

relationship in early December 2017. Later that month, Roe texted Doe

informing him that she thought she had herpes and that she “most likely got

it” from him. Doe responded that he “had it a long time ago” after which

Roe informed Doe that he likely had “dormant herpes.” Doe then asked Roe

what “dormant” meant and she explained that herpes was an incurable

disease, meaning one “[has] it for life.” Doe then apologized to Roe,

acknowledging that there was nothing he could say to remedy the situation.

On December 15, 2017, Roe contacted the University’s Title IX office

and stated that she became infected with herpes after a consensual sexual

encounter with another student who knew he had herpes. She sought

information about submitting a formal complaint to the University’s Student

Judicial Programs (“SJP”). Then, on December 18, Roe filed a police report

with the Rice University Police Department (“RUPD”) alleging that Doe

failed to inform her that he had herpes prior to their sexual encounters. The

next day, she informed RUPD that she wanted to press criminal charges

against Doe, but the department declined to file charges, explaining that the

State could not prove Doe’s intent to spread herpes to Roe.

After meeting with SJP in January of 2018, Roe submitted a written

complaint on February 12, stating that Doe failed to inform her that he had

herpes during their relationship. On February 13, SJP Director Emily Garza

notified Doe via email that he was prohibited from contacting Roe and

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requested to schedule a meeting the following day, to discuss “a disciplinary

matter.” The following morning, on February 14, Doe’s then-attorney Brett

Podolsky called Garza to tell her that Doe would not be attending the

meeting. Garza then informed Podolsky that she would only communicate

with Doe, so Doe responded to her email seeking to reschedule the meeting

so he could prepare and obtain further legal advice. Garza confirmed receipt

of Doe’s email and replied that someone would get in touch with him soon

regarding rescheduling the meeting.

Later that day, Doe received an emailed letter from Dean Donald

Ostdiek informing him that he was immediately placed on an interim

suspension pursuant to Code section 1.E.1 and 1.E.2 “to ensure the safety

and wellbeing of members of the University community while the University

investigates.” The letter explained that the interim status of the suspension

would be reviewed after Doe engaged in the regular investigative process

with the University and that he was prohibited from stepping foot on campus

for any reason, including to attend classes, without the express permission of

Dean Ostdiek or SJP.

Doe also received a letter from Garza informing him of the allegations

that had been made against him and that disciplinary charges had been filed.

She further stated that SJP was investigating whether Doe had violated the

University’s Code section II.B.1.a prohibiting “intentionally inflicting or

attempting to inflict mental or bodily harm on any person” and “taking

reckless disregard, from which mental or bodily harm could result to any

person[.]” She also explained that she was investigating whether his conduct

“may qualify as dating violence” under the University’s Sexual Misconduct

Policy. The letter stated that Doe had until February 21, to respond to the

charges but SJP later extended his response deadline to March 6.

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On March 6, Doe submitted to SJP his written response to Roe’s

complaint explaining that he and Roe had discussed prior to beginning their

sexual relationship that Doe had been diagnosed with herpes in high school

but that he had not had “outbreaks or symptoms” since that time. He

suggested that Roe might have contracted herpes from another that had

stated he had sexual relations with Doe and had been subsequently diagnosed

with herpes. He further alleged that Roe had repeatedly lied and contradicted

herself in her representations to SJP.

The following day, on March 7, Doe received an email from Dean

Ostdiek modifying the terms of his suspension so that he could attend classes

since the “process [was] now continuing with [his] participation.” On March

21, another meeting was held between SJP and Doe wherein Doe was

permitted to have Poldolsky present as a “support person” and meet with

Garza. During this meeting, Doe reiterated that he had previously told Roe

in a brief conversation, prior to their sexual relationship, that he had herpes

in high school. On April 9, Garza informed Doe and Roe that SJP had

completed its investigation and that both had the opportunity to supplement

the casefile until April 13.

On April 17, Garza issued a decision letter stating that, based on a

preponderance of the evidence standard, “[Doe] failed to adequately notify

[Roe] of the fact that she was at risk of contracting HSV-1 from [him] if the

two of [them] engaged in unprotected sex[,]” and “[Doe’s] 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” in violation of the University’s Code. She

also noted that although Roe acknowledged that Doe mentioned that he had

herpes early in the relationship, Doe never informed her of the details of the

disease, the long-term effects, or how it was spread. The letter stated that

Doe would be immediately disciplined with “rustication,” a sanction that

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permitted him to be on campus for academics and for other purposes with

prior permission. The letter further provided that Doe could request to have

his rustication lifted “no sooner than June 1, 2019.”

On April 19, 2018, a Rice University Athletics official released Doe

from the football program and he lost his football scholarship. On April 23,

Doe filed a Notice of Appeal with Dean John Hutchinson contending that

Roe gave conflicting testimony during the SJP proceedings, and that no

reasonable trier of fact would find her credible or sustain the charges against

him. In addition to listing several instances in which Roe “lied, misled,

misunderstood, or ‘misremembered’” facts, Doe emphasized that the

University neglected to hold her responsible for her “reckless personal

behavior” and failed to interview another student that stated that he had

contracted herpes from Roe prior to Doe attending the University. Doe

concluded by alleging that “Garza and others within the SJP were inherently

biased in favor of [Roe] in their investigation and deliberation of this matter.”

On May 4, Dean Hutchinson issued a decision denying Doe’s appeal

and sustaining SJP’s disciplinary sanction against him. Specifically, he

determined that Doe failed to present evidence of bias, that Doe’s text

messages to Roe established that his conduct constituted “reckless

disregard,” and that several of Doe’s allegations did not address the primary

issue investigated which was whether Doe gave “sufficient notice” about his

herpes diagnosis. That summer, on July 16, because Doe had lost his football

scholarship, he was forced to withdraw from the University.

On September 11, 2019, Doe filed suit in the Eastern District of Texas

against the University, Garza, and Dean Ostdiek, alleging that the University

violated Title IX by investigating and adjudicating a punishment in a way that

was biased against him as a male. In his complaint, he asserted claims of

erroneous outcome, selective enforcement, and archaic assumptions. He also

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brought a state law breach-of-contract action on grounds that he was deprived

of various entitlements conferred when he accepted an offer of admission and

paid tuition to the University. He sought a declaratory judgment, injunctive

relief, damages, and attorney’s fees. On May 7, 2020, Garza and Ostdiek

were dismissed as defendants, and on August 25, the case was transferred to

the Southern District of Texas.

On January 16, 2021, the University moved for summary judgment

and on September 16, the district court granted the University’s motion and

dismissed Doe’s suit. Addressing the merits of his Title IX claims, the district

court held that Doe failed to raise a genuine issue of material fact. It further

held that Doe could not establish a breach of contract because the

University’s Code expressly disclaimed that it provided or created a contract,

and if it did, there was no breach. Doe filed this appeal.

II. STANDARD OF REVIEW

We conduct a de novo review of a district court’s grant of summary

judgment. Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020).

“Summary judgment is proper ‘if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’” Id. (citing Fed. R. Civ. P. 56(a)). “We review evidence

in the light most favorable to the nonmoving party, but conclusional

allegations and unsubstantiated assertions may not be relied on as evidence

by the nonmoving party.” Carnaby v. City of Houston, 636 F.3d 183, 187 (5th

Cir. 2011). “A panel may affirm summary judgment on any ground supported

by the record, even if it is different from that relied on by the district court.”

Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012) (internal

quotation marks omitted).

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III. DISCUSSION

On appeal, Doe argues that material issues of fact remain with respect

to his Title IX claims. He also argues that the district court failed to view the

evidence in the light most favorable to the nonmovant as required at this

juncture. We agree and address each of his arguments below.

Consistent with Doe’s overarching claims of gender bias against him

by the University, our review of the record identifies multiple instances

where the University’s due process procedures were deficient in terms of its

treatment of Doe. For example, before Doe had a reasonable opportunity to

present his side of the story with the advice of counsel, he was prohibited

from entering campus with only 24-hours’ notice. He was then banned from

athletics—which effectively nullified his full-ride football scholarship. Rice

treated Doe as guilty, and as a threat to the University’s community, until he

“participated” in the University’s (and the police department’s)

investigation without the advice of counsel.

Additionally, Doe’s lawyer was not allowed to participate in the

process or view any documents in the disciplinary file in order to counsel

Doe. Instead, Doe was assigned a Title IX “resource navigator” who also

met with Roe and a police officer to take Roe’s statement, indicating a

potential conflict of interest. Further, Doe raised credibility issues about Roe,

but the University disregarded these credibility concerns, dismissing them as

“irrelevant,” or otherwise declined to investigate them. Finally, Rice failed

to clearly notify Doe of the conduct he would ultimately be sanctioned for.

Roe accused Doe of failing to inform her of his herpes diagnosis, and this was

the charge Doe defended against. Rice ultimately found that Doe had

informed Roe of his herpes diagnosis but sanctioned him anyway for failing

to go further by informing Roe of the risks of having sex with a herpes carrier,

despite the fact that no such rule appears in Rice’s student code.

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We further conclude that a rational jury could find that Rice’s one-

sided procedures resulted from anti-male bias. Doe was kicked off campus on

24 hours’ notice because of the risk that he might have sex with other

students and infect them with herpes. And he was ultimately sanctioned with

what amounted to expulsion for failing to inform a sex partner of the potential

consequences of having sex with a herpes carrier. Yet when Doe offered the

University evidence that Roe was doing precisely the same thing, and Roe

expressly informed the University of her intent not to tell future sex partners

of her herpes diagnosis, the University did nothing. Instead, the same Dean

of Undergraduates who thought Doe posed such a threat to the University

community that he needed to be banned from campus would not require Roe

to disclose to her sexual partners that she had herpes. We agree that these

facts taken together, or in isolation, implicate serious due process concerns

and now turn to the merits of Doe’s Title IX arguments.

A. Title IX

“Title IX proscribes gender discrimination in education programs or

other activities receiving federal financial assistance.” Pederson v. La. State

Univ., 213 F.3d 858, 877 (5th Cir. 2000) (citation omitted). The statute is

“enforceable through an implied private right of action,” and the Supreme

Court has “consistently interpreted Title IX’s private cause of action broadly

to encompass diverse forms of intentional sex discrimination.” Klocke v.

Univ. of Tex. at Arlington, 938 F.3d 204, 209–10 (5th Cir. 2019), cert. denied,

140 S. Ct. 1268 (2020) (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, 281 (1998); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183

(2005)). “The University, as a recipient of federal funding, can be held liable

for intentional discrimination on the basis of sex or for deliberate indifference

to discrimination against or harassment of a student on the basis of sex.”

Plummer v. Univ. of Hous., 860 F.3d 767, 777 (5th Cir. 2017), as revised (June

26, 2017) (citation omitted). Title IX also “bars the imposition of university

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discipline where gender is a motivating factor in the decision.” Yusuf v.

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

Courts have superimposed a number of doctrinal tests onto Title IX’s

language to aid in its application to school disciplinary proceedings. But this

circuit has recently joined a growing number of Circuits to recognize that,

while sometimes helpful, these tests do not abrogate Title IX’s basic

analytical framework. Rather, “[a]ll of these categories simply describe ways

in which a plaintiff might show that sex was a motivating factor in a

university’s decision to discipline a student.” Doe v. Purdue Univ., 928 F.3d

652, 667 (7th Cir. 2019) (Barrett, J.); see also Van Overdam v. Tex. A&M Univ.,

43 F.4th 522, 527 (5th Cir. 2022) (adopting the approach of Purdue

University). The Tenth Circuit has recently modeled how to apply this

standard at summary judgment. See Doe v. Univ. of Denver, 1 F.4th 822, 830

(10th Cir. 2021). “[T]he operative question for summary judgment [is

whether] a reasonable jury—presented with the facts alleged—[could] find

that sex was a motivating factor in the University’s disciplinary decision.”

Id. As we will explain below, Doe has met this burden.

Doe has opted to pursue his claims under three doctrinal tests that

recur in higher education Title IX cases—those being the (1) erroneous

outcome, (2) selective enforcement, and (3) archaic assumptions theories of

liability. We analyze his claims accordingly. At bottom, each demonstrates

that a reasonable jury—presented with the evidence in this record—could

conclude that sex was a motivating factor in Rice’s decision to discipline Doe.

(1) Erroneous Outcome

To advance an erroneous outcome claim, a student-plaintiff can argue

that the disciplinary proceeding came to an erroneous outcome because it

was infected with bias. Doe v. Baum, 903 F.3d 575, 585–86 (6th Cir. 2018).

To prevail on this type of claim, a plaintiff must show (1) an erroneous

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outcome and (2) that “gender bias was the motivating force behind” it.

Klocke, 938 F.3d at 210 (citing Yusuf, 35 F.3d at 715). Specifically, “[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. (quoting Yusuf, 35 F.3d

at 715).

As to the issue of erroneous outcome, the district court opined in the

proceedings below that Doe’s text messages alone indicated that “he did not

inform or inadequately informed Roe of his herpes status.” It further

expounded that “Roe’s sexual history and knowledge about the risks of

having unprotected sex [were] irrelevant and [did] not demonstrate that

[Doe’s] gender affected the University’s investigation or decision regarding

the complaint filed against him.” According to the district court, “the

University’s decision was based on unrebutted evidence about their

encounter found in the text messages between them and not his gender.”

To the contrary, Doe has continuously and strenuously questioned

why Garza did not ask Roe “how many other students she had unprotected

sex with, did not ask for any names, took no steps to interview any other

students, and did not even consider interviewing the other student that [] Roe

was sleeping with at the same time she was sleeping with Doe.” He also avers

that “Roe could have chosen to abstain [from sex with Doe], to get more

information, or to require Doe to get tested[,] and Roe did none of those

things, yet Garza did not hold Roe accountable at all.”

Doe points out that Garza herself acknowledged repeated

misrepresentations by Roe during the investigation and that “Roe repeatedly

changed her story about,” inter alia, “whether Doe told her he had herpes in

high school, . . . whether she had sex with Doe after she discovered [her

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outbreak], . . . whether she had other sexual partners during the time she was

having sex with Doe, and whether she even asked Doe about herpes.” He

then identifies multiple SJP investigational flaws, including that Garza had

“acknowledged that . . . forgiving the female’s inconsistencies more easily

than the male’s would violate the University’s gender discrimination

policies,” and that “if she was biased in favor of the female, it would violate

the University’s gender discrimination policies.”

We agree with Doe that a question of material fact remains as to

whether the University reached an erroneous outcome in its SJP proceedings

against him. See Yusuf, 35 F.3d at 715 (stating that a student-plaintiff can

plead a Title IX violation by “alleg[ing] particular facts sufficient to cast some

articulable doubt on the accuracy of the outcome of the disciplinary

proceeding”). First, and most significantly, we note that contrary to Roe’s

allegations and the University’s position at the time of Doe’s interim

suspension, the record supports Doe’s contention that he did inform Roe

about his history with herpes before the two had sex and that she may have

had herpes already. Indeed, by her own admission, Roe knew that Doe had

herpes in his sexual history, but she declined to inquire further about the

disease or its transmissibility before having unprotected sex with him. 1

Moreover, as Doe urged in the SJP proceedings, Roe could have contracted

herpes from one of her other sexual partners prior to beginning her

relationship with him, a theory which could have been corroborated by

another male student had the University contacted him to confirm Doe’s

1

The record contains a letter from Garza to Doe dated April 17, 2018, stating that

although “[Roe] told [Garza] that . . . [Doe] mentioned a history with herpes early in the

relationship, [Roe] was never informed of the details of the disease, the long-term effects,

or how it is spread.”

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allegations. 2 In other words, the record supports Doe’s argument that Roe

knew about Doe’s herpes, had unprotected sex with him anyway, and may

have already had herpes herself at that time.

Nevertheless, Rice kicked Doe off campus on 24 hours’ notice

because he allegedly did not disclose his herpes diagnosis to Roe even though,

as we have stated, the record clearly contradicts this conclusion, and even

though it would ultimately immunize Roe for the exact same behavior.

Furthermore, Rice ultimately sanctioned Doe with what amounted to

expulsion for failing to inform Roe of all of the risks of having sex with a

herpes carrier, even though Rice’s student code does not contain such a

requirement and, again, even though the University would ultimately

immunize Roe for doing the same thing. This is further evidenced by Dean

Ostdiek’s deposition testimony that the University would not require Roe to

disclose to her sexual partners that she had herpes as the University was

holding Doe liable for failing to do. 3 Likewise, Garza’s deposition testimony

provided, and the record confirms, that Doe never made any

misrepresentations or changed his story while Roe consistently

misrepresented the facts and changed her story. For example, Roe told the

RUPD that Doe never told her he had herpes prior to their sexual encounters

but later admitted that Doe did in fact disclose his herpes diagnosis to her

prior to the two having sex. A rational juror could also find the variance

between Roe’s allegations and the conduct for which Doe was ultimately

sanctioned to be explainable by the fact that Roe’s allegations fell apart under

2

Garza admits that she did not follow up with Doe’s proposed witness, and she did

not consider Doe’s impeachment of Roe’s credibility to be “relevant.”

3

When asked by Doe’s counsel whether the SJP would have an obligation to ensure

that Roe disclosed her herpes diagnosis to her sexual partners, Dean Ostdiek replied “[t]he

SJP would not mandate going forward that she tell all sexual partners. That is something

that would be done through counseling in a professional setting.”

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scrutiny. A factfinder would not be unreasonable to conclude, as the Ninth

Circuit speculated in Doe v. Regents of University of California, that “when

confronted by a claim that lacked merit, the University rushed to judgment”

by suspending Doe, “and then sought out a way to find the accused

responsible for something in order to justify its earlier actions.” 23 F.4th 930,

939 n.12 (9th Cir. 2022).

Furthermore, Doe was punished for alleged violations of the

University code of conduct’s “expectations of civility and respect” but it is

unclear on these facts exactly how Doe’s failure to describe to Roe how a

certain strain of herpes is transmitted violated these “expectations of civility

and respect.” Roe’s behavior, meanwhile, hardly appeared to exemplify

“civility and respect,” as indicated by her text messages to Doe: “Question:

are you aware of how much you f***** up. I don’t think you do. But you will,

do not worry. You don’t f*** w me like that and get away with it.” Despite

Roe’s expletive-laden threats against Doe, there is no indication that she was

ever charged with any such violation or that the University took any action

against her whatsoever. For these reasons, we conclude that material fact

issues remain as to whether the University reached an erroneous outcome in

its SJP proceedings against Doe. Id.; see also Regents of Univ. of Cal., 23 F.4th

at 941 (“[A]t some point an accumulation of procedural irregularities all

disfavoring a male respondent begins to look like a biased proceeding.”). The

district court’s consistent discounting of Doe’s arguments and evidence

underscores that it did not view the record in the light most favorable to the

nonmovant. In short, as to the erroneous outcome issue, it weighed evidence

and made credibility determinations that were prohibited by Rule 56. See

FED. R. CIV. P. 56.

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(2) Selective Enforcement

A student-plaintiff can advance a selective enforcement claim by

arguing 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.” Yusuf, 35 F.3d at 715. To succeed on this type of claim, a

plaintiff must show that either the punishment or the decision to initiate

enforcement proceedings was motivated by gender bias. Klocke, 938 F.3d at

213.

On this issue, the district court stated that the record before it did not

support Doe’s contention that the University selectively enforced its

procedures. It pointed out that Roe contacted SJP and filed a formal

complaint against Doe but a formal complaint was never filed against Roe. It

continued that “[a]lthough the University handbook provide[d] a number of

sanctions including suspension and expulsion, [Doe] received social

rustication for his violation” and “[n]othing in the record indicate[d] that

[Doe] received a harsher punishment because he was a male or that female

students receive a lighter punishment.” It concluded that Doe had not

“presented any statistical or other evidence of gender bias” and on those

grounds held that he had failed to present a fact issue on his selective

enforcement claim.

With respect to his arguments under the selective enforcement

theory, Doe emphasizes that he “informed [] Garza that Roe had done

exactly what she was accusing Doe of, except worse[,]” and yet Garza did

not investigate further. He explains that “[n]one of the email recipients at

Rice discussed whether Roe posed a danger to other students, yet when

assessing Doe’s punishment, they considered ‘every other student that

attends Rice University’ (and who had not filed complaints).” According to

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Doe, “[t]hese are all instances of the [U]niversity’s selective enforcement of

its policies against Doe but not Roe.”

Construing the evidence in a light most favorable to Doe, the

nonmovant, we agree that a material fact question exists as to whether the

University selectively enforced its policies against him by refusing to treat

Roe and Doe equally when Doe alleged—in response to Roe’s allegations—

that she was guilty of the same conduct of which he was charged: failure to

disclose the risk of STD transmission. See Yusuf, 35 F.3d at 715 (to prevail on

this claim, the plaintiff must show 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”). If, as Doe alleges, Roe

likely had herpes before having sex with him, on the University’s reasoning,

she should have warned him before they had sex—and she did not. But Garza

refused to investigate this possibility despite Doe’s telling her about this

because she claims they “did not have a report about [Roe].” For these

reasons, we agree that a material fact issue remains as to whether the

University’s proceedings against Doe were motivated by gender bias. Id.

(3) Archaic Assumptions

A student-plaintiff can also argue that the University’s action was

based on overly broad and archaic assumptions about one sex or the other.

See Pederson, 213 F.3d at 881 (“Well-established Supreme Court precedent

demonstrates that archaic assumptions . . . constitute intentional gender

discrimination.”). To successfully raise an archaic assumptions claim, a

plaintiff must show that the University’s actions were based on attitudes

about gender roles that reflect gender bias. Id. at 880–82. Decisions and

statements that are predicated on “outdated” and “outmoded” assumptions

demonstrate a university’s intent to treat one differently because of their

gender. Id. at 881 (citation omitted).

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As to this issue, the district court reasoned that “the record [was]

devoid of any evidence that indicate[d] that the University placed a different

duty on male students to disclose the risks of unprotected sex than it [did] on

female students.” It continued that Doe failed to point to any statements that

the University made to demonstrate that males had a different duty to

disclose their herpes status. On these grounds, it held that Doe failed to raise

a fact issue to establish his claim under the archaic assumptions theory.

Doe on the other hand contends that “[c]ertainly, assuming that an

adult female college junior is incapable of understanding the risks of sexual

intercourse without the male educating her is part of” the archaic thinking

our case law prohibits. According to Doe, “[r]efusing to acknowledge that

Roe had an accountability for her own actions, her own choices[,] and her

own conduct is ‘remarkably outdated’” and “[s]ubsequently refusing to hold

her accountable for the same conduct is outdated, archaic, and outmoded.”

We agree with Doe that, to the extent a rational jury could find that

the University’s policy arose from the view that a more-knowledgeable male

(Doe) had a duty to educate an unwitting female (Roe) about the precise risks

of herpes transmission, its position rests on an archaic assumption. See

Pederson, 213 F.3d at 881. Roe, as Garza acknowledged, was a “consenting

adult female” who, as the record confirms, was rather sexually

knowledgeable. In fact, it appears that Roe was perhaps even more educated

about herpes and its transmissibility than Doe as evidenced by their text

message exchanges wherein Roe informed Doe that herpes was an incurable

disease and his case was likely dormant, to which Doe replied “what does

dormant mean[?]” Garza’s decision appeared to depend on the view that it

was Doe’s responsibility to inform Roe of publicly available information that

Roe, a capable adult woman, could have ascertained for herself: to wit, “the

details of the disease, the long-term effects, [and] how it is spread.” A

rational juror could conclude that to absolve Roe of responsibility for her own

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risk-assessments—and to place that burden on her male partner—is to act on

archaic assumptions in violation of Title IX. Id. For these reasons, we agree

that a material fact issue remains as to whether the University acted on

archaic assumptions in its investigation against Doe. Id.

For the foregoing reasons, we hold that the district court erred in

granting summary judgment in favor of the University on grounds that the

record clearly indicates that material fact issues remain in dispute as to

whether Doe has successfully advanced a Title IX claim against the

University.

B. Breach of Contract

With respect to Doe’s breach-of-contract claim, he argues that an

implied contract is formed where a private university agrees to provide an

educational opportunity in exchange for a student’s agreement to

successfully complete the degree requirements, abide by school guidelines,

and pay tuition. According to Doe, because Garza testified that the

University’s policies included not treating students differently on the basis

of gender, there is at least a material fact issue with respect to this proposed

breach of contract. We are not persuaded.

“In Texas, the construction of a contract presents a question of law”

which this court reviews de novo. Hanover Ins. Co. v. Binnacle Dev., L.L.C.,

57 F.4th 510, 514 (5th Cir. 2023) (citation omitted). Under Texas state law,

“[t]he essential elements of a breach of contract action are: (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 sustained by the

plaintiff as a result of the breach.” Smith Intern., Inc. v. Egle Grp., LLC, 490

F.3d 380, 387 (5th Cir. 2007) (alteration in original) (quoting Valero Mktg. &

Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex. App. 2001).

Valid contracts can be express or implied, and “the real difference between

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express contracts and those implied in fact is in the character and manner of

proof required to establish them.” Haws & Garrett Gen. Contractors, Inc. v.

Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex. 1972). Although both

express and implied contracts require mutual agreement, “in the case of an

implied contract,” it “is inferred from the circumstances.” McAllen Hosps.,

L.P. v. Lopez, 576 S.W.3d 389, 392 (Tex. 2019) (citation omitted).

Here, Doe has not alleged any breaches of the University’s Code or

associated policies. Moreover, as the district court accurately observed in

evaluating Doe’s breach-of-contract claim, the Code expressly provides that

“[t]he procedures used . . . by SJP are not those used in court cases and are

not intended to create contractual rights[.]” In the absence of contractual

rights and the University’s intent to be bound, we hold that it is entitled to

summary judgment as a matter of law with respect to Doe’s breach-of-

contract claim. Accordingly, we affirm the portion of the district court’s

order dismissing Doe’s breach-of-contract claim.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s dismissal

of Doe’s breach-of-contract claim but REVERSE its summary judgment in

favor of the University with respect to Doe’s Title IX claims and REMAND

for further proceedings consistent with this opinion.

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James E. Graves, Jr., Circuit Judge, dissenting:

This case begins and ends with one question: Is there any evidence

that could lead a rational jury to conclude the University conducted its

investigation and issued its punishment against Doe because he is a man? The

answer is a resounding no. An examination of John Doe’s experience with

the University’s disciplinary process reveals no evidence of gender

discrimination. Because of this, and because the majority reaches the

opposite conclusion despite what is required to maintain a Title IX gender

discrimination claim, I respectfully dissent.

I.

John Doe began attending William Marsh Rice University in the fall

of 2017. He met Jane Roe in October, and they began a relationship. At some

point, Doe and Roe discussed their sexual histories. Doe disclosed that he

had a “run-in” with herpes in high school and was recovering from

chlamydia. According to Doe’s statement to the University, this

“conversation wasn’t deep or graphic, and it was brief.” Neither Doe nor

Roe recalled, “any further discussion about the disease, the ramifications of

a diagnosis, or the risk to a partner when engaging in unprotected sex with a

carrier of the disease.” Roe remembered that Doe told her that he “would

never have sex with [her] if [he] wasn’t clean.” After this conversation, Doe

and Roe had consensual unprotected sex many times over five weeks.

The couple broke up amicably but reconnected two weeks later. On

December 13, 2017, the couple was about to have sex when Doe noticed sores

on Roe’s genitals. The couple decided not to have vaginal sex at that time,

and Doe told Roe to get checked out by a medical professional.

The following day Roe was tested for and diagnosed with herpes,

HSV-1. She immediately confronted Doe by text message. Roe suggested the

sores she had were herpes and that she contracted it from Doe. She then

asked for clarification of Doe’s herpes status, and mentioned that Doe said

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he had a “run-in” with herpes in high school, and that if he had herpes, it

might be dormant. Doe stated, “I think it’s that too, just looks similar.” He

continued to state, “But yeah I had it a long time ago. And what does dormant

mean[.]” The conversation continued with Doe stating that he knew that

“once [you] have herpes you have it for life” and “it never goes

away . . . there’s not a cure[.]” Doe also stated he knew he had herpes during

his relationship with Roe but did not tell her until she confronted him.

Roe filed several complaints against Doe. The important one here is

her complaint to the University’s Student Judicial Programs (SJP) on

February 12, 2018. In that complaint, Roe reported Doe for failing to inform

her about his herpes diagnosis before having unprotected sex with her.

Emily Garza, the Associate Director of SJP, reviewed the complaint

and began an investigation on February 13. She first notified Doe of a

“disciplinary matter,” informed him that he should have no further contact

with Roe, and asked to have a meeting with him the following day. Doe asked

to reschedule the meeting so he could have time to “get some legal advice

and be more prepared.” Garza then sent Doe a summary of the disciplinary

charges against him pursuant to the University’s Code of Student Conduct.

Garza stated Doe was charged with violating Section II.B.1.a of the Code of

Student Conduct, which prohibits “intentionally inflicting or attempting to

inflict mental or bodily harm on any person . . . taking any reckless action, or

showing reckless disregard, from which mental or bodily harm could result

to any person.” At that time, based on the reported conduct, Garza stated

she was “also concerned that the alleged behavior may qualify as ‘dating

violence.’” 1 Garza also informed Doe of how he may respond to the charges,

including submitting a written response.

1

The Code of Student Conduct discusses dating violence as follows:

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That same day, Donald Ostdiek, the Associate Dean of

Undergraduates, placed Doe on an interim suspension as a measure “to

ensure the safety and wellbeing of members of the University community

while the University investigates.” Dean Ostdiek was worried about the

accusations against Doe but was even more concerned about Doe’s initial

refusal to cooperate with the University police and SJP investigations. Doe

had postponed meeting with Garza and had not followed the usual procedure

for investigating the matter. Dean Ostdiek mentioned that the temporary

suspension would be reevaluated once Doe participated in the standard

investigation process.

On March 6, 2018, Doe provided Garza with his written response to

Roe’s allegations. Doe stated he informed Roe of his “run in” with herpes in

high school. 2 He referred to their text messages in which Doe stated, “[a]nd

you did mention to me that you had a run-in senior year maybe?” Doe

Dating violence refers to causing physical, psychological or emotional

harm, or using threats or actions intended to cause physical, psychological

or emotional harm to one’s current or former intimate partner, domestic

partner, or dating partner. Dating violence is often referred to as violence

committed by a person who is or has been in a romantic or intimate

relationship with the survivor.

2

Doe’s statement about the discussion was:

[Roe] and I specifically talked about my herpes “run in” when I was in

Highschool [sic], just as she said in her statement to the school and in her

text messages to me . . . . I was very upfront with her and told her what I

knew about the situation. This conversation was at the same time we talked

about me having [c]hlamydia.

...

I did tell her specifically it was herpes. I told her everything I knew about

the situation. I did not tell her about a “break out” because I never had

sores or blisters, but as I said, I did tell her I went to the Dr. and tested

positive for herpes.

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emphasized that he did not have an outbreak of herpes, suggested Roe had

herpes before the two had sex, and focused on Roe’s alleged sexual history.

The following day, Dean Ostdiek modified Doe’s suspension because

the University’s investigatory process was “now continuing with [Doe’s]

participation.” Dean Ostdiek permitted Doe to attend classes and enter

academic buildings and the library to study.

Throughout March 2018, Garza conducted her investigation pursuant

to the policy listed in the Code of Student Conduct. This investigation

included meeting with Doe and his attorney, who was permitted to attend

meetings as Doe’s “support person.” Doe and his attorney were also

permitted to review the “disciplinary file” and were informed whenever new

information or documents were added to it. This means that Doe was

permitted to read Roe’s statements and listen to audio recordings of her

interviews with Garza and the SJP. Doe was also permitted to submit

additional statements in response to his review of the file.

On April 17, 2018, Garza issued a written decision summarizing her

investigation and conclusions. Garza found, by a preponderance of the

evidence, that Doe “failed to adequately notify [Roe] of the fact that she was

at risk of contracting HSV-1 from [him] if the two of [them] engaged in

unprotected sex.” Doe’s “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.” Garza concluded this conduct violated the Code of Student

Conduct. Garza also concluded Doe did not violate the Sexual Misconduct

Policy and did not commit “dating violence” as described in the Code.

Garza’s decision was premised on her finding that Doe did tell Roe

that he had a history with herpes. In fact, Garza recognized that Roe had

admitted, both in text messages and in interviews, that Doe “mentioned” his

run-in with herpes in high school. But even though Doe said he had herpes,

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Garza found he “did not elaborate on the effects of that diagnosis or the risks

posed to sexual partners as a carrier of the disease.” Garza also found Doe

failed to inform Roe “of the details of the disease, the long-term effects, or

how it spread.” Garza stated Doe “failed to adequately notify your sexual

partner of the physical risk of contracting herpes from [Doe] through

unprotected sex, and that eliminated [Roe’s] opportunity to make a fully

informed decision about her sexual activity and health.” These findings were

based on the descriptions of the conversation from both Doe and Roe and the

text messages between the two. 3

Garza’s decision resulted in penalties being imposed on Doe,

including a punishment known as “rustication,” which restricted Doe from

being on campus for any reason other than academic purposes without

permission from SJP. Garza clarified that her office did not have the authority

to determine whether Doe could participate in football, but if the Athletics

Department permitted it, he would need to coordinate with SJP for his

presence on campus.

Doe appealed Garza’s decision to the Dean of Undergraduates, John

Hutchinson. Doe raised his concerns about Roe’s credibility and maintained

that his version of events was “the truth of the matter.” For instance, he

claimed he never “misrepresented” or “misled” Roe. He relied on Roe’s

admission that Doe told her about his history with herpes. Doe also raised his

concern with Garza’s decision to omit Roe’s statement that Roe would in the

3

Garza also addressed the conflicting “meaning” behind some of Doe’s text

messages. Garza stated the text messages showed the face-to-face conversation between

Doe and Roe about herpes “was insufficient to reach a clear conclusion or understanding.”

And although Doe contended that he was largely ignoring Roe and only told Roe what she

wanted to hear so that she would leave him alone, Garza stated she found the more credible

story to be that Doe was trying to engage with Roe about the issue to the point where he

asked Roe to send him photos of her genitals to confirm his suspicions about her potential

herpes diagnosis.

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future withhold her herpes diagnosis and “just use a condom.” Finally, Doe

raised Roe’s sexual relationship with another student who contracted herpes

after having sex with Roe and before Doe arrived at the University. Doe

stated the investigation was biased in favor of Roe, but did not mention the

alleged bias arose because of either of their respective genders.

On May 4, 2018, Dean Hutchinson denied Doe’s appeal and sustained

Garza’s decision. Dean Hutchinson concluded Doe produced no evidence of

bias and that Doe’s own admissions and statements were enough to

demonstrate that Doe acted with reckless disregard. Dean Hutchinson

emphasized that Garza’s decision was focused on the narrow issue of

whether Doe gave sufficient notice and warning to Roe about Doe’s own

herpes diagnosis. Dean Hutchinson also importantly noted some of Doe’s

raised points, whether Doe gave Roe herpes and her relationships with other

Rice students, were irrelevant to Doe’s own conduct.

Doe withdrew from the University on July 16, 2018.

Doe later sued the University, Garza, and Dean Ostdiek asserting that

the University investigated and punished him based on gender bias in

violation of Title IX. He also alleged a breach of contract claim for the

University’s alleged failure to provide him with certain entitlements as part

of his admission to the University.

The University moved for summary judgment. The district court

granted the motion and concluded Doe failed to raise a genuine issue of

material fact as to whether the University acted with gender bias and whether

there was a contract or breach. Doe appealed.

II.

Title IX provides that: “No person . . . shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681(a). Title IX broadly encompasses

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diverse forms of intentional sex discrimination, Jackson v. Birmingham Bd. of

Educ., 544 U.S. 167, 183 (2005), and Doe is free to characterize his claims

however he chooses, but the ultimate question is always whether there is

evidence that the University “discriminated against [Doe] on the basis of

sex[.]” Overdam v. Texas A&M Univ., 43 F.4th 522, 527 (5th Cir. 2022). Still,

because Doe relies on three specific theories, “we need not speculate on any

other possible theories of Title IX liability.” Plummer v. Univ. of Hous., 860

F.3d 767, 778 (5th Cir. 2017), as revised (June 26, 2017).

First, Doe alleges an erroneous outcome claim in which he contends

that the University’s investigation and conclusion were “wrong” and gender

bias was a motivating factor behind them. Second, he alleges a selective

enforcement claim in which he contends he was punished for the same

conduct that women, like Roe, committed although only he was investigated

and punished. Third, Doe states the University based its decision on archaic

assumptions that only men can educate women about sexually transmitted

diseases and the risks of unprotected sex.

Based on his own characterizations or otherwise, there is no evidence

that could lead a rational fact finder to conclude the University discriminated

against Doe because he was a man. The district court’s grant of summary

judgment to the University was, therefore, proper.

A.

Starting with Doe’s erroneous outcome theory, Doe has produced no

evidence that the University’s decision was wrong or that it was based on

gender bias. “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’—for instance, ‘a motive to lie

on the part of a complainant or witnesses, or particularized strengths of the

disciplined student’s defense.’” Klocke v. Univ. of Tex. at Arlington, 938 F.3d

204, 210 (5th Cir. 2019) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d

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Cir. 1994)). “The plaintiff must also demonstrate a ‘causal connection

between the flawed outcome and gender bias.’” Id. (citing Yusuf, 35 F.3d at

715).

Doe’s main contention is that Roe was not credible because she

“repeatedly changed her story about whether Doe told her he had herpes in

high school[.]” It is true that Roe was not entirely consistent from her first

report and throughout the investigation. Roe started by acknowledging that

she asked Doe specifically about chlamydia and then asked generally whether

“he had anything.” Roe then alleged Doe “led [her] on to believe he was

clean.” Yet she also stated in her first report that she “believe[d] he

mentioned he had [herpes] in high school[,]” and she “remember[ed] him

talking about breaking out during [s]enior year of high school with some type

of sexually transmitted disease.” She still stated Doe “did not mention what

[the disease] was, and of course he did not say that he STILL had it.” These

statements appear to allege Doe did not mention herpes at all.

Nevertheless, in the text messages submitted to SJP, Roe

acknowledged that Doe told her he had a “run in” with herpes in high school.

In her subsequent statements and interviews with SJP, she again

acknowledged that Doe mentioned herpes in some form. In one statement,

Roe stated that she remembered Doe mentioning his “run in” with herpes in

high school. And in Garza’s final decision, she summarized Roe’s statements

in which Roe acknowledged she remembered Doe mentioning his “run in”

with herpes.

Despite Roe’s inconsistencies, Doe’s story remained the same—Doe

contends he told Roe he had herpes in high school. This contention, however,

does not show that the University’s outcome was wrong. That is because the

University’s finding was not that Doe did not tell Roe about herpes at all—it

was that he did not tell Roe enough about his herpes diagnosis. And even more

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important is the fact that the University made this finding based on Doe’s

own statements and Roe’s statements that were most favorable to Doe.

No one, not even the University, disputes that Doe mentioned or said

he had herpes in high school. 4 But even if this is true (notably by Doe’s own

version of events), the University found Doe in violation of the Code of

Student Conduct because he did not tell Roe enough about his herpes

diagnosis before having unprotected sex with her. The University relied on

Doe’s statements that the conversation with Roe about herpes was “not deep

or graphic” and “brief.” The University, therefore, found that while Doe did

tell Roe he had herpes in high school, he did not tell her that herpes is an

incurable sexually transmitted disease, he is a carrier of that disease for life,

he can pass the disease to his sexual partners, and the risk of his sexual

partners contracting the disease is heightened during unprotected sex. It was

Doe’s failure to tell Roe these other facts about his “run in” with herpes in

high school that led to the finding that he acted with reckless disregard for

the physical and emotional welfare of another student in violation of the Code

of Student Conduct. Consequently, Doe’s erroneous outcome claim is

focused on whether this finding and conclusion were wrong.

4

To the extent Doe continues to attack Roe’s credibility on this fact, her credibility

was not at issue when the University relied on Doe’s own statements to sustain its finding.

Doe makes no argument as to why his own statements were unreliable. Nor does he argue

that the University did not believe his version of events (likely because they did believe his

own version of events).

Doe’s general attack on Roe’s credibility is insufficient to show the University’s

finding was wrong. For instance, Doe does not say which of Roe’s statements were untrue

and which statements the University should have believed over others. (This is probably

because the University accepted Roe’s statements that were most consistent with Doe’s

statements, i.e., that Doe did tell Roe that he had herpes in high school.) Regardless,

because the University relied on Doe’s statements and recount, Doe cannot show the

outcome was wrong unless he shows his own statements were untrue or warranted further

investigation. He has done neither. And Roe’s credibility has no impact on this.

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But Doe has not disputed or refuted the finding that he did not tell

Roe the additional relevant facts about his herpes diagnosis. Nor has Doe

produced any evidence to show that he did inform Roe about these other

relevant facts. In fact, Doe only repeatedly contends that he told Roe he had

herpes in high school. That fact, however, was found and accepted by the

University. And still, that fact alone is not what resulted in the finding that

Doe violated the Code of Student Conduct.

The University found Doe did not say anything more about his herpes

diagnosis, which he was required to do under the Code of Student Conduct.

The nail in the coffin here is that Doe does not contend he actually did tell

Roe more information about his herpes diagnosis contrary to the University’s

finding. 5 This case would be quite different had Doe informed Roe that

5

Doe argues he did not know anything more about his herpes diagnosis to disclose

that information to Roe. He points to his text message to Roe in which he asked her what

“dormant” means. As an initial matter, Doe’s ignorance as to the meaning of the word

“dormant” is not the same as ignorance that he has herpes for life, even if asymptomatic.

But also, Garza explicitly asked Doe to explain the meaning behind his text messages and

statements to Roe. Doe in response said, “[m]y understanding, at that time, you have an

outbreak, so either oral in your mouth or on your genitalia, that you can pass it. And that

you have it for life.” Garza further sought clarification and asked whether Doe understood

that herpes “is incurable and a carrier of HSV-1 will always be a carrier.” Doe confirmed

this was his understanding at the time he sent the text messages. Garza acknowledged that

Doe stated he “didn’t know nearly as much” about herpes but stated this conflicted with

Doe’s other statements on the issue.

Doe’s contention is also belied by the record before the University. Once Roe

clarified what dormant means, i.e., “[o]nce u have herpes you have it for life, you know that

right[.] It never goes away. Ever there’s not a cure [.]” Doe’s response was,“[y]eah I do

know that.” He goes on to suggest he knows more about the disease and states, “I have the

first one. I could explain on the phone[.]” So again, Doe’s own statements and words

support the University’s finding that Doe knew he had herpes, knew he had it for life, and

knew he could pass it to others. Doe’s question regarding the meaning of “dormant” does

not create a triable issue on whether that finding was wrong.

To the extent Doe relies on his affidavit submitted to the district court, in which

he stated he “did not know at the time that herpes could lie ‘dormant’ and still be

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although he had herpes in high school, he carries that disease for life, he can

pass that disease even when he is asymptomatic, and the risk of passing it to

others increases when he has unprotected sex. However, he neither asserts

nor maintains that he did.

There is accordingly no “articulable doubt on the accuracy,” Klocke,

938 F.3d at 210, of the University’s finding that Doe did not tell Roe

“appropriate, necessary, and timely information” about his herpes diagnosis.

As a result, Doe has not raised a triable issue on his erroneous outcome

theory. See Klocke, 938 F.3d at 210–11 (concluding there was no triable issue

on erroneous outcome claim despite some statements expressing

reservations about holding student responsible).

B.

Doe’s selective enforcement theory also fails because there is no

evidence that similarly situated women were either not investigated or

punished in the same way as Doe. A selective enforcement claim requires a

showing that, regardless of Doe’s culpability, “either punishment or the

decision to initiate enforcement proceedings was motivated by gender bias.”

Klocke, 938 F.3d at 213. To make this showing, plaintiffs typically must point

to similarly situated comparators who were treated more favorably. See id.

(deciding a selective enforcement claim based on whether the evidence

“permit[ted] the inference that similarly situated female students were

treated more favorably than” the plaintiff).

Although Doe contends the University treated Roe differently than

him by not punishing her for the same conduct, the record shows Roe was

contagious,” that affidavit was not before the University and is not relevant to assessing his

claims against it. See Klocke, 938 F.3d at 210 (stating doubt on the accuracy of proceeding

must be based “on the record before the disciplinary tribunal” (quoting Yusuf, 35 F.3d at

715)).

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not similarly situated to Doe, and any differential treatment was not based on

gender.

Start with the obvious—a formal SJP complaint was filed against Doe

and not against Roe. That is a significant distinction showing Doe and Roe

were not similarly situated yet treated differently. Although Doe informed

Garza that he believed Roe gave herpes to another student before he had sex

with her, no formal complaint, by either Doe or the other student, was ever

filed against Roe. The University was under no obligation to investigate

Roe’s behavior, particularly with other students, when no student had

submitted a complaint about her. See Overdam, 43 F.4th at 528 (discussing

the difference between two students where one was accused of violating

policies and the other was not). Although Doe stated the other student was

willing to “talk” to SJP, that student did not formally file a complaint against

Roe, nor did Doe. Also, Garza encouraged Doe to review the Code, which

describes the procedures for filing and investigating formal SJP complaints.

So, while Roe’s conduct was still irrelevant to Doe’s own culpability, 6 he still

6

Doe raised the other student in his response to Roe’s SJP complaint, apparently

because he thought this fact exonerated him from violating the Code of Student Conduct.

And while Garza did not address Doe’s allegation in reaching her decision about Doe’s

conduct (which Doe takes issue with), it is clear that his allegation about Roe’s conduct

with another student was irrelevant as to whether Doe did or did not violate the Code of

Student Conduct. Dean Hutchinson made that point clear in his decision letter stating,

“any activity between [Roe] and [another student] has no bearing on whether you acted

with reckless disregard.” Still Doe provides no rational reason why Roe’s conduct with

others had any impact on whether his conduct violated the Code of Student Conduct. His

argument on this point, at best, suggests he is less culpable because Roe may have had

herpes before he had sex with her. But to be clear, the likability or sympathetic view of a

victim is not at issue when determining whether Doe violated the Code of Student

Conduct. And more importantly, Doe was not charged with giving Roe herpes. He was

charged with failing to adequately inform her about his own herpes diagnosis and the risk

of passing it through unprotected sex (regardless of whether she already had it).

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failed to file a separate complaint against Roe after the fact or to pass along

this information to the other student who was allegedly harmed by Roe.

The lack of a formal complaint against Roe shows she is not similarly

situated to Doe. The University’s alleged failure to open up an investigation

against Roe or to punish her for allegedly engaging in the same conduct as

Doe is therefore not reasonably attributable to gender bias. Instead, it is

attributable to the fact that “[Roe] was not accused of violating the

University’s policies—only [Doe] was.” Overdam, 43 F.4th at 528; see also

Klocke, 938 F.3d at 213 (rejecting selective enforcement theory when the

accused’s proffered comparators were not in a sufficiently similar class with

the accused).

Doe next argues that Roe admitted she did not intend to disclose her

herpes diagnosis to her future sexual partners, and SJP failed to punish her

for the same conduct he was charged with. This again does not show that Roe

is similarly situated. Roe’s alleged intent to violate the Code at some time in

the future is still not a violation of the Code that warranted investigation and

punishment in the context of investigating Doe’s conduct. No student filed a

complaint against Roe for this conduct—and at that point in time, it was

entirely hypothetical. Is the University expected to punish a student for

prohibited conduct the student has yet to engage in?

And when Doe raised this issue in his appeal, Dean Hutchinson

acknowledged that Roe would be appropriately investigated and punished if

she violated the Code with the same conduct in the future. He explicitly

stated, Roe “would face her own consequences were that situation to arise.” 7

7

Dean Hutchinson also appropriately pointed out that Doe’s concern with Roe’s

alleged intent to withhold her herpes diagnosis from future partners was “not only

irrelevant but wildly off point. Whether [Roe] were at some time in the future to

demonstrate reckless disregard for the welfare of another student does not have anything

to do with whether it was acceptable for you to disregard the welfare of another student.”

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Rather than showing bias, this statement shows that the University would

treat Roe, or any other female student, in the same manner as Doe, if and

when they engage in the same reckless conduct as Doe.

Doe argues Roe’s statement shows she is a danger to the University

community and she should have been punished. This point is irrelevant

because Doe was not determined to be a danger to the community simply

because he had herpes. Nor could Roe. Doe was found to be a danger to the

community because he had herpes, and he failed to disclose the serious

implications of that diagnosis before he had unprotected sex with another

student. Roe had yet to engage in this same conduct to make her a similar

danger to the community. And at best, her statement showed only that she

wanted to maintain her privacy as she went forward with her new herpes

diagnosis.

Next, Doe’s argument based on Dean Ostdiek’s deposition testimony

in which he said he would “counsel” Roe rather than punish her, is entirely

out of context—and more importantly does not reveal selective enforcement.

In response to whether SJP would be required to “act on that information,”

i.e., the information about Roe’s alleged intentions to withhold her herpes

diagnosis from future partners, 8 Dean Ostdiek stated he would “have had

discussions . . . about whether [Roe] was being counseled.” He then stated

he would want Roe to receive counseling “[b]ecause this is a very troubling

time with a lot of life-changing decisions she has to make.”

8

Doe submitted a transcript of Dean Ostdiek’s deposition testimony, but it is

notably incomplete and does not include the line of questioning before this question to

provide context on what “that information” is. It is noteworthy that Doe places great

emphasis on this testimony, but it is intriguing that the district court and now us on appeal

do not have access to the relevant context. Nevertheless, it seems that the pertinent inquiry

pertains to Roe’s purported intentions, as they were brought up in the same way as in this

case, which was during SJP’s investigation of Doe.

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While Doe thinks this statement reveals Dean Ostdiek’s intent to treat

Roe differently, when considered in the accurate context of SJP discovering

this information in the investigation of Doe’s conduct, this statement only

reveals Dean Ostdiek’s understanding that Roe had just recently been

diagnosed with herpes. Dean Ostdiek’s statement is regarding Roe’s status

as a reporting student and victim who now needs to understand how to move

forward with her diagnosis. And again, there is no evidence that Dean

Ostdiek stated he would only counsel Roe in response to a formal complaint

filed against Roe. In fact, Doe conveniently overlooks Dean Ostdiek explicitly

stating the opposite; he said if students made an allegation to the University

that Roe “slept with other students and did not tell them that she had

herpes,” “that would be investigated and assessed.” Doe, however, points

to no formal complaint lodged against Roe for this conduct.

Dean Ostdiek’s statement does not show that he would treat Roe

differently if a student filed a formal complaint against her for the same

conduct. Nor does it show that Doe, himself, was treated differently because

he is a man. And a single out-of-context statement from one University

official, who did not adjudicate Doe’s charges or his appeal, is simply not

enough to demonstrate bias in this case. Cf. Walsh v. Hodge, 975 F.3d 475,

484 (5th Cir. 2020) (concluding allegation that one of many people involved

in disciplinary process was biased was insufficient to sustain a procedural due

process claim based on bias).

The bottom line is that Doe has failed to meet his burden to produce

evidence that shows the University selectively enforced the Code. Doe has

produced no evidence of similarly situated comparators to even remotely

draw an inference that he was treated any differently than any other student,

female or otherwise. And to the extent he relies on Roe being a comparator,

he has not shown that she was similarly situated to him because a formal SJP

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complaint was never filed against her. Doe’s claim based on the selective

enforcement theory thus fails.

C.

Doe’s final theory of gender bias, based on the archaic assumptions

theory, fails because there is no evidence of archaic assumptions regarding

men and women and their respective abilities to understand sexually

transmitted diseases and the risks of unprotected sex. In Pederson v. Louisiana

State University, this court stated, “outdated attitudes about [gender] amply

demonstrate [an] intention to discriminate” in violation of Title IX. 213 F.3d

858, 881 (5th Cir. 2000). The court emphasized that intentional gender

discrimination can be established by “archaic assumptions,” “overbroad

generalizations,” and “outdated” beliefs “about the different talents,

capacities, or preferences of males and females.” Id. (citations omitted). In

Pederson, the archaic assumptions were facially discriminatory, and the

application of those assumptions, therefore, amounted to intentional gender

discrimination.

The record in Pederson was rife with university officials’

condescending and unfounded comments about women and their athletic

abilities. See Pederson, 213 F.3d at 881 (listing comments about women

including “honey,” “sweetie,” “cutie,” a statement calling softball a “more

feminine sport,” and a justification to treat women differently because “the

women might get hurt”). There was also evidence of blatantly differential

treatment of the genders, with female sports having smaller budgets and less

qualified staff. See id. Here, by contrast, Doe points to no facially

discriminatory comments made by Garza or any other University official. In

fact, there are no facially discriminatory comments or assumptions in the

record at all. Moreover, as discussed, Doe has not produced evidence of

differential treatment of similarly situated female comparators.

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Although it is possible, as Doe contends, that “assuming that an adult

female college junior is incapable of understanding the risks of sexual

intercourse without the male educating her is part of [impermissible] archaic

thinking[,]” there is no evidence that occurred here. Rather, the record

shows the University placed a burden on Doe to adequately inform any and

all of his sexual partners about his herpes diagnosis, regardless of their

genders, because he is the “carrier of the infection,” regardless of his gender.

Other than referring to Doe and Roe by their respective male and female

pronouns, there is no other discussion or commentary regarding genders, let

alone the capabilities of one gender compared to the other.

Doe also argues that the University failed to put any responsibility on

Roe for her own knowledge, choices, and conduct in engaging in unprotected

sex. But he fails to acknowledge that the entire point of the charges against

him was that he did not provide Roe with sufficient information to allow her

to “make a fully informed decision about her sexual activity and health.”

It is also worth noting that Doe has not identified “outdated” or

“archaic” assumptions about the genders and their respective knowledge of

sexual health that have somehow found their way into the University

disciplinary process. To make his point on this issue, he relies on a single

paragraph filled with conclusory and unsubstantiated allegations that the

University assumed Roe could not understand the risks associated with

herpes because she is a woman. Those allegations are contradicted by the

record. The fact that Doe is unhappy that the University placed a burden on

him because he is the carrier of a sexually transmitted disease is no evidence

that that burden was instead placed on him because he is a man.

Because there is no basis for finding the University based its decision

on archaic and outdated assumptions, Doe’s claim on this theory cannot

survive summary judgment.

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D.

Despite Doe’s attempts to prove gender discrimination under the

three theories above, the ultimate question is: Does the evidence “raise a

plausible inference that [the University] or its administrators discriminated

against [Doe] on the basis of sex?” Overdam, 43 F.4th at 527 (recognizing

different fact patterns may show sex discrimination). It does not.

Doe has not identified evidence that gender bias affected Garza’s

investigation and conclusion. Nor has he shown that the provision he was

charged with, Section II.B.1.a, was selected and enforced because of gender

bias. To show bias and discrimination, Doe argues Garza more easily forgave

Roe’s inconsistencies and made assumptions in Roe’s favor. Specifically,

Doe argues Garza assumed Doe had “some level of knowledge about

herpes . . . which there was no evidence.”

But a review of the record reveals no evidence of gender bias. The

record does not show that Garza only believed Roe or forgave her

inconsistencies while disregarding Doe’s own statements. In fact, the

opposite is true.

Garza assessed Roe’s statement thoroughly, and she sought

clarification on Roe’s allegations. Garza also asked Roe directly whether she

remembered that Doe mentioned having herpes in high school. Roe was able

to review Doe’s response and statements, which were critical of Roe’s

allegations. Garza summarized all of Roe’s inconsistencies and her

explanations. Garza’s written decision discussed these inconsistencies and

stated she considered them when deciding what actually happened between

Doe and Roe. Rather than showing a rubber stamp approval and acceptance

of everything Roe said, the record shows Garza thoroughly scrutinized Roe’s

allegations in the investigation.

The same is true for Doe’s statements. Garza acknowledged that Doe

stated he told Roe about his herpes diagnosis. But she also considered Doe’s

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messages to Roe (before any SJP involvement) that suggest Doe “admitt[ed]

to having unprotected sex with [Roe] while knowing that [he is] a carrier of

an incurable sexually transmitted disease that can be transferred to [his]

partner by unprotected sex, and failing to disclose that information to her.”

Despite having both Doe’s statements to SJP and his text messages, Garza

sought further clarification of Doe’s intent and knowledge. She asked Doe to

elaborate on what he meant in his text messages and to provide context. In

response, Doe verified his understanding and intentions, which did not

meaningfully differ from the plain meaning of his messages. This shows,

again, that Garza engaged in a thorough investigation to understand Doe’s

side of the story. And importantly, there is no evidence that Garza simply

disregarded Doe’s statements for any reason, let alone because he is a man.

Insofar as Doe contends Garza assumed Doe had knowledge about

herpes without evidentiary support, he fails to account for his own

statements to Garza. She specifically asked Doe about his understanding of

herpes. Doe told Garza that he understood herpes was incurable, that he

carried it for life, and that he could “pass it.” Not to mention there is

circumstantial evidence of Doe’s knowledge of herpes and its effects based

on the fact that he went to the doctor and “tested positive for herpes.” Doe’s

bare allegation that there is no evidence to support his knowledge of herpes

is obviously wrong.

It is also relevant that the University gave a nondiscriminatory reason

for concluding Doe knew about his herpes diagnosis and the relevant effects

and risks to others. That is because, of course, Doe has herpes. Dean

Hutchinson specifically noted that Doe had the burden to inform his

potential sexual partners about his herpes diagnosis and the effects because

he was “the carrier of the infection.” This is a reasonable, justifiable, and

nondiscriminatory basis for the University’s decision. Therefore, any

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“inference of gender bias in these circumstances would necessarily be

speculative.” Klocke, 938 F.3d at 212.

The University and Code of Student Conduct place a burden on

carriers of a sexually transmitted disease to inform sexual partners of that

disease, the effects of that disease, whether and how the disease can be passed

to others, and whether certain precautions or choices affect the ability of the

disease to be passed. In that same vein, the University does not expect

students who have not been diagnosed with a sexually transmitted disease to

understand these facts about every disease. Hence, if a potential sexual

partner mentions having chlamydia or “herpes in high school,” it may not be

adequate information for students to make informed choices regarding their

sexual health and behavior. That is a reasonable and justifiable basis for the

University’s conclusion that Doe acted with reckless disregard for Roe’s

health. And that conclusion has nothing to do with gender.

Doe appears to think this policy is unfair and unwise. He attributes its

unfairness to gender bias, and so does the majority. It may well be a less

onerous burden on Doe, or a better policy, to assume every student should

know or that Roe should have known the risks of having unprotected sex after

a potential sexual partner reveals he or she “had herpes in high school.” It

may also be reasonable to require students to inquire into the details of any

disclosed sexually transmitted disease. But it is not our place to determine

whether the University’s policies or the Code of Student Conduct are wise.

Our job is to determine whether the policy was either motivated by gender

bias or enforced in a manner that discriminates on the basis of gender in

violation of Title IX. Doe has overwhelmingly failed to show gender

discrimination here. And it is simply insufficient to allege the policy is

unfavorable to Doe when there is no evidence that the policy was adopted or

is applied to discriminate on the basis of gender.

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E.

Despite there being no evidence of gender discrimination, the

majority takes the position that the disciplinary process itself was unfair to

Doe and his Title IX claims somehow survive summary judgment on that

basis. The majority raises its concerns with due process and procedural

irregularities. But Doe has not alleged a due process claim. So, to address this

appeal, in which Doe appeals the grant of summary judgment to the

University solely on a Title IX claim, the only issue is whether Doe has

produced evidence to maintain his Title IX gender discrimination claim.

Doe does not contend he did not receive due process. He contends the

process he received was biased because of his gender in violation of Title IX. 9

While the majority may have concerns with the process Doe received, 10 those

9

Most notably, Doe’s opening and reply brief do not mention “due process” once.

Neither does his briefing on the motion for summary judgment in the district court.

Although Doe’s complaint mentions due process in passing, he does not raise and has not

raised due process arguments against the University. Any argument based on a

constitutional right to due process is therefore forfeited. Rollins v. Home Depot USA, 8 F.4th

393, 397 (5th Cir. 2021) (“A party forfeits an argument by failing to raise it in the first

instance in the district court—thus raising it for the first time on appeal—or by failing to

adequately brief the argument on appeal.” (citation omitted)).

I also note that the University is a private institution. Doe has made no argument

that the University is an arm of the state or governmental entity and must comply with

constitutional due process. See Walsh v. Hodge, 975 F.3d 475, 481 (5th Cir. 2020) (stating

procedural due process confines governmental decisions that deprive individuals of life,

liberty, or property interests). Despite this, this circuit has yet to recognize that in

university disciplinary proceedings, the accused must be given the opportunity to question

the accuser or other witnesses as part of their right to procedural due process. See id. at

485; Plummer, 860 F.3d at 775 (declining to state “whether confrontation and cross-

examination would ever be constitutionally required in student disciplinary proceedings”).

10

The majority takes issue with the fact that Garza did not permit Doe to be

represented by an attorney, did not give Doe a hearing, and did not allow Doe to cross-

examine Roe. All of these actions were taken, however, consistent with and pursuant to the

Code of Student Conduct’s description of the relevant process for SJP investigations. The

record, therefore, shows Doe was provided with the exact process described in the Code

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concerns are only relevant here if they arose from gender bias. But, as

explained, that is not the case.

This appeal does not present the vehicle to address those concerns.

Instead, we are bound by the claim Doe raised and the elements necessary for

him to survive summary judgment. That claim, that the University

discriminated against him on the basis of his gender, must therefore fail

because there is no evidence to sustain it.

III.

This case is a straightforward Title IX gender discrimination case. To

survive summary judgment, Doe is required to produce some evidence that

can lead a rational fact finder to conclude the University treated Doe

differently because he is a man. The record demonstrates, however, that the

(which is neutral regarding gender). And there is no evidence that the University’s

subscription to the Code’s process in Doe’s case was motivated by gender bias. Doe

completely fails to present evidence regarding the University’s process and its application

to any other formally-charged student, male or female.

As for the merits of these issues, there is little to be concerned about. First,

although the University does not formally allow lawyers to represent or communicate on

behalf of students in SJP investigations, Doe’s attorney was permitted to be by Doe’s side

through the entire process. Doe’s attorney was able to review the charges, assist Doe in

drafting his response, advise Doe on what to present to SJP, assist Doe in preparing for his

interviews with Garza, and be present at those interviews with Garza. He was also

permitted to “pass notes” to Doe during the interviews and to talk to Doe during breaks.

Second, Doe has not requested a hearing, nor does he point to any specific requirement

that a hearing be provided in these circumstances. Regardless, Doe was permitted to

respond to the charges, review the evidence in the file, and submit his own evidence and

statements to undermine Roe’s theory. Third, the University has made clear that it did not

rely on Roe’s testimony to conclude Doe’s violation. Because Doe’s own statements were

“sufficient to sustain the University’s findings and sanctions[,]” there is little concern with

his inability to cross-examine Roe. Plummer, 860 F.3d at 775. As a result, there is “no

procedural deficiency” in this regard. Id. at 775–76 (noting reliance on evidence other than

complainant’s testimony shows cross-examination of complainant would have had little

impact on proceedings); Walsh, 975 F.3d at 487 (stating cross-examination in some form

might be constitutionally required “where the outcome depends on credibility”).

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University provided Doe with all the procedural protections listed in the

Code of Student Conduct and treated him in the same manner as other

students regardless of gender. The record is devoid of any evidence, and Doe

points to none, that shows the University acted based on gender bias or sex

discrimination. I would accordingly affirm the district court’s well-reasoned

order granting the University’s motion for summary judgment.

I respectfully dissent.

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