The opinion
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1843
JOHN DOE,
Plaintiff - Appellant,
v.
THE CITADEL, The Military College of South Carolina; GLENN M. WALTERS,
in his official capacity at The Citadel; VALERIE MERCADO, in her official
capacity at The Citadel; JANET SHEALY, in her official capacity at The Citadel,
Defendants - Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. David C. Norton, District Judge. (2:21-cv-04198-DCN)
Submitted: February 9, 2023 Decided: June 12, 2023
Before KING and AGEE, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Philip A. Byler, PHILIP A. BYLER, ESQ., Huntington, New York, for
Appellant. M. Dawes Cooke, Jr., John W. Fletcher, BARNWELL WHALEY
PATTERSON & HELMS, LLC, Charleston, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Plaintiff-Appellant John Doe was expelled from Defendant-Appellee The Citadel,
the Military College of South Carolina (“The Citadel”), for alleged sexual misconduct. He
subsequently sued The Citadel and several of its officials—Defendants-Appellees Glenn
M. Walters, the school’s president; Valerie Mercado, the school’s Title IX coordinator; and
Janet Shealy, the director of Cadet Advocacy, Response, and Education (CARE), the
school’s sexual assault center (collectively, “Appellees”). In his complaint, he brought a
claim under 42 U.S.C. § 1983 against Walters, Mercado, and Shealy (collectively, “the
administrative defendants”), alleging a violation of his Fourteenth Amendment right to
procedural due process, as well as a claim against The Citadel, alleging sex discrimination
under Title IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681–88. He now
asks us to reverse and remand the district court’s grant of Appellees’ motion to dismiss
these claims. For the reasons that follow, we affirm.
I.
Doe attended The Citadel, a state-incorporated military college, on a Marine
scholarship. On October 8, 2019, Doe’s classmate, Jane Roe, filed a complaint with The
Citadel, accusing Doe of three incidents of sexual misconduct. Doe denied these
accusations. The complaint was referred to and heard by a Commandant’s Board (the
Board) at the school. On December 18, 2019, the Board ultimately found a violation as to
one of the three alleged incidents, deciding that “it was more likely than not that [Doe]
committed an act of sexual violence in non-consensual physical contact of a sexual nature
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by rubbing his front side against the backside of [Roe] at the Law Barracks Sally Port.”
J.A. 8. Consequently, Doe lost his scholarship and was dismissed from The Citadel with
leave to apply for possible readmission after one year. Doe appealed this decision to a
separate tribunal and sought to present new testimony. On February 3, 2020, that tribunal
“denied” his appeal. J.A. 8. Doe then sued Appellees, alleging that the administrative
defendants violated his Fourteenth Amendment right to procedural due process and that
The Citadel discriminated against him on the basis of sex. Appellees filed a motion to
dismiss the complaint for failure to state a claim, which the district court granted. Doe
timely appealed.
II.
We review de novo the grant of a motion to dismiss. King v. Rubenstein, 825 F.3d
206, 214 (4th Cir. 2016) (citation omitted). We “accept as true all well-pleaded allegations
and view the complaint in the light most favorable to the plaintiff.” Philips v. Pitt Cnty.
Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citation omitted). “To survive a motion
to dismiss, the complaint’s factual allegations must be enough to raise a right to relief above
the speculative level—that is, the complaint must contain enough facts to state a claim for
relief that is plausible on its face.” King, 825 F.3d at 214 (cleaned up).
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III.
A.
Doe first challenges the district court’s dismissal of his procedural due process claim
against the administrative defendants. To establish a procedural due process violation, a
plaintiff must show “deprivation by state action of a constitutionally protected interest in
life, liberty, or property . . . without due process of law.” Kerr v. Marshall Univ. Bd. of
Governors, 824 F.3d 62, 80 (4th Cir. 2016) (cleaned up). Both the Supreme Court and this
Court have assumed without deciding that university students possess a “constitutionally
protectible property right in their continued enrollment” at a university. Tigrett v. Rector
& Visitors of Univ. of Va., 290 F.3d 620, 627 (4th Cir. 2002) (simplified); see also
Sheppard v. Visitors of Va. State Univ., 993 F.3d 230, 239 (4th Cir. 2021).
The amount of process due depends on the nature of the interests at stake. Goss v.
Lopez, 419 U.S. 565, 575–76 (1975). In the educational context, due process requires that
a student facing suspension for ten days or less due to disciplinary reasons “be given oral
or written notice of the charges against him and, if he denies them, an explanation of the
evidence the authorities have and an opportunity to present his side of the story.” Id. at
581. Neither we nor the Supreme Court have expanded upon precise requirements for
longer-term school suspensions or expulsions imposed due to disciplinary misconduct. But
we have noted that “the requirements of due process [in the educational context] may be
satisfied by something less than a trial-like proceeding,” Henson v. Honor Comm. of the
Univ. of Va., 719 F.2d 69, 74 (1983) (citing Goss, 419 U.S. at 579), and that “[w]hen a
school takes serious disciplinary action against a student, generally the student must be
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offered notice and an opportunity to be heard,” Brown v. Rectors & Visitors of the Univ.
of Va., 361 F. App’x 531, 532 (4th Cir. 2010) (per curiam) (citing Goss, 419 U.S. at 579).
In light of this background, we hold that the administrative defendants afforded Doe
adequate due process. Doe did not allege that he was provided inadequate notice of the
charges or the Board hearing. He was permitted to present a statement and testimony, call
witnesses (including character witnesses), and be accompanied by a representative—all
safeguards that we have consistently held satisfy due process. See, e.g., Doe v. Loh, 767
F. App’x 489, 490–91 (4th Cir. 2019) (per curiam); Henson, 719 F.2d at 73–75; Vega v.
Saleeby, No. C.A. 2:04–0023–18, 2004 WL 3334816, at *5–7 (D.S.C. July 12, 2004), aff’d,
126 F. App’x 626 (4th Cir. 2005) (per curiam).
Doe contends that the district court overlooked his allegations demonstrating that
the Board harbored a bias against him. He highlights that Shealy provided Roe with
support and assistance during the Board hearing, but Shealy did not do the same for him.
However, he never alleged that he was not permitted to seek similar support and assistance
for himself. In fact, he alleged that his “representative” accompanied him to the hearing
and was given the opportunity to cross-examine Roe. J.A. 32. Doe also takes issue with
“Commander Adcock” serving as the recorder for the Board during the hearing because he
was Roe’s “Battalion TAC Officer” during the 2018–19 school year. Opening Br. 9. But
he alleged nothing to suggest that the involvement of Commander Adcock—who was a
non-voting Board member—biased the Board against him. See J.A. 34. Doe further
impugns the Board for stopping his representative’s cross-examination of Roe about her
“false memory.” Opening Br. at 27. But Doe, in the academic context, is not entitled to
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the same rights as a criminal defendant. We have not found a “basis in the law . . . for
importing [the right to cross-examination] into the academic context,” and we decline to
do so here. Butler v. Rector & Bd. of Visitors of Coll. of William and Mary, 121 F. App’x
515, 520 (4th Cir. 2005) (per curiam).
Additionally, Doe argues that his appeal to a separate tribunal at The Citadel did not
cure the perceived problems stemming from the Board’s alleged bias against him.
However, his complaint did not name the members of the appeals tribunal or identify any
defects in its decision-making. Instead, the complaint notes that he took an appeal and
sought to present new evidence. It also describes the tribunal’s reasons for denying his
appeal and concludes that “[t]he stated grounds for denying [Doe’s] appeal were without
merit.” J.A. 34. These bare and conclusory allegations do not support Doe’s claim that he
was denied due process. Thus, the district court properly rejected Doe’s allegations of bias.
Doe also challenges the Board’s decision as arbitrary and capricious, arguing that it
improperly afforded Roe’s evidence more weight than his own. He highlights that Roe
changed the alleged date of the incident from October 2019 to September 2019—when
video surveillance footage was not available to confirm a date—and that he presented
evidence suggesting that he was elsewhere at the time of the incident for which he was
found responsible. These assertions challenge the Board’s ultimate decision on the merits,
not its procedure. The district court aptly recognized this shortcoming and properly
dismissed the procedural due process claim.
Finally, Doe argues that because his case involves allegations of sexual misconduct,
he was due greater procedural protections than those that respondents would receive in
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other conduct-related proceedings. But he cites no case law to support that proposition.
The two out-of-circuit cases upon which he relies merely recognize the long-standing
principle that allegations of disciplinary misconduct implicate weightier private interests
than allegations of academic misconduct, and therefore require more procedural
safeguards. Opening Br. at 20 (citing Doe v. Univ. of Cincinnati, 872 F.3d 393, 400 (6th
Cir. 2017); Doe v. Miami, 882 F.3d 579, 599–600 (6th Cir. 2018)); see also Horowitz, 435
U.S. at 86. These cases did not require the administrative defendants to afford Doe more
protection because the allegations against him involved sexual harassment. For these
reasons, we affirm the dismissal of the procedural due process claim against the
administrative defendants. *
B.
Doe further argues that the district court erred in dismissing his Title IX claim
against the Citadel. Title IX prohibits federally supported educational institutions from
discriminating on the basis of sex. Sheppard, 993 F.3d at 234 (citing 20 U.S.C. § 1681(a)).
To state a claim for relief under Title IX, a plaintiff must allege facts that, “if true, raise a
plausible inference that the university discriminated against [him] on the basis of sex.” Id.
at 235 (quoting Doe v. Purdue Univ., 928 F.3d 652, 667 (7th Cir. 2019)). Importantly, the
plaintiff must plead facts showing that his sex was the but-for cause of the challenged
*
Because we affirm the district court’s dismissal of the procedural due process claim for
failure to state a claim, we do not reach the administrative defendants’ alternative bases for
affirmance regarding the Ex Parte Young doctrine and the policy-or-custom standard.
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university action. Id. at 236.
In this claim, Doe reiterates his criticisms of The Citadel’s process for adjudicating
the complaint against him, arguing that the perceived procedural “irregularities” discussed
above, and the Board’s eventual decision to expel him, raise an inference of sex
discrimination. Opening Br. 37 (citations omitted). But as discussed above, Doe’s
allegations demonstrate that he benefited from ample procedural safeguards. He does not
dispute that he received notice of the complaint and of the hearing. The Citadel permitted
him to present a statement and testimony, call witnesses, be accompanied by a
representative, and appeal to a separate tribunal. Moreover, even if The Citadel’s treatment
of Doe in the Title IX process was improper, he did not allege facts demonstrating that his
sex was the but-for cause of any mistreatment. Sheppard, 993 F.3d at 236.
Doe contends that The Citadel displayed a so-called “‘Believe [t]he Woman’ gender
bias” against him. Opening Br. at 44. He emphasizes the fact that women comprise the
majority of complainants in university Title IX proceedings, while most respondents are
men. However, these general statistics alone do not indicate discrimination or bias against
men, as other reasons unrelated to bias may explain the disparity. See, e.g., Doe v. Trs. of
Boston Coll., 892 F.3d 67, 91–92 (1st Cir. 2018). Nor do these statistics compel the
conclusion that The Citadel, in Doe’s particular case, engaged in sex discrimination. See
Sheppard, 993 F.3d at 236. Indeed, as discussed previously, Doe failed to allege any facts
beyond these statistics that would suggest that he experienced such particularized
discrimination.
Similarly, Doe emphasizes the April 2011 “Dear Colleague Letter” issued by the
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Office for Civil Rights (OCR) of the United States Department of Education, which tied
federal funding for school districts, colleges, and universities to compliance with particular
requirements for handling sexual harassment and sexual violence on campus. U.S. Dep’t
of Educ., Off. of the Assistant Sec’y for C.R., Dear Colleague Letter (2011) (saved as ECF
opinion attachment). But again, Doe did not plead facts that would connect the letter to
any sex discrimination in his case. See Sheppard, 993 F.3d at 236. For these reasons, the
district court correctly found that Doe failed to state a plausible Title IX claim against The
Citadel.
IV.
For the foregoing reasons, we affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before us, and argument would not aid the decisional process.
AFFIRMED
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