Roe v. St. John's University, No. 21-1125 (2d Cir. 2024)
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This case is about a dispute between Richard Roe and St. John’s University (SJU) and Jane Doe. Roe, a male student at SJU, was accused of sexually assaulting two female students, Doe and Mary Smith, on separate occasions. SJU's disciplinary board found Roe guilty of non-consensual sexual contact with both Doe and Smith and imposed sanctions, including a suspension and eventual expulsion. Roe then sued SJU, alleging that his rights under Title IX of the Education Amendments of 1972 and state contract law had been violated. He also sued Doe for allegedly defaming him in an anonymous tweet accusing him of sexual assault. The United States District Court for the Eastern District of New York dismissed Roe's Title IX and state law claims, and declined to exercise jurisdiction over his defamation claim. On appeal, the United States Court of Appeals for the Second Circuit affirmed the district court's decision, holding that Roe's complaint failed to state a plausible claim of sex discrimination under Title IX. The court found that, while Roe had identified some procedural irregularities in SJU's disciplinary proceedings, these were not sufficient to support a minimal plausible inference of sex discrimination. Furthermore, the court ruled that Roe's hostile environment claim was fatally deficient, as the single anonymous tweet at the center of his claim was not, standing alone, sufficiently severe to support a claim of a hostile educational environment under Title IX.
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21-1125 Roe v. St. John’s University UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2021 (Argued: April 12, 2022 Decided: January 31, 2024) Docket No. 21-1125 RICHARD ROE, Plaintiff-Counter-Defendant-Appellant, v. ST. JOHN’S UNIVERSITY, Defendant-Appellee, JANE DOE, Defendant-Counter-Claimant-Appellee. Before: SACK, PARKER, AND MENASHI, Circuit Judges. * St. John’s University disciplined male plaintiff “Richard Roe” for allegedly sexually assaulting two women—“Jane Doe” and “Mary Smith”—on separate occasions. Roe brought suit against St. John’s University in the United States District Court for the Eastern District of New York, alleging that it violated his rights under Title IX of the Education Amendments of 1972 and under state contract law. Roe also sued Doe under state law for allegedly defaming him in an anonymous tweet that accused Roe of sexual assault. The district court (Pamela K. Chen, J.) granted St. John’s University’s motion to dismiss Roe’s suit under Federal Rule of Civil Procedure 12(b)(6), concluding that Roe had failed to state a Title IX claim against St. John’s University. The district court also Judge Amalya L. Kearse, originally a member of the panel, recused herself from this case after it had been argued. Judge Barrington D. Parker, chosen at random, was subsequently added to the panel in her stead. * 21-1125 Roe v. St. John’s University declined to exercise supplemental jurisdiction over Roe’s state-law breach of contract and defamation claims. Roe timely appealed, arguing that he had adequately pleaded facts raising a minimal plausible inference of sex discrimination in St. John’s University’s disciplinary procedures. For the reasons set forth below, we disagree. We therefore AFFIRM the judgment of the district court. Judge Parker concurs in a separate opinion. Judge Menashi dissents in a separate opinion. PETER G. EIKENBERRY (Michael Valentine, on the brief, The Law Office of Michael Valentine, Brooklyn, NY), Law Office of Peter G. Eikenberry, New York, NY, for Plaintiff-Counter-Defendant-Appellant; LYLE S. ZUCKERMAN (Michael J. Goettig, on the brief), Davis Wright Tremaine LLP, New York, NY, for Defendant-Appellee; CHARDAIE C. CHARLEMAGNE (Victoria L. Stork, on the brief, Baker & Hostetler LLP, New York, NY), Baker & Hostetler LLP, San Francisco, CA, for Defendant-CounterClaimant-Appellee. SACK, Circuit Judge: INTRODUCTION St. John’s University (“SJU”), headquartered in the New York City borough of Queens, disciplined male plaintiff Richard Roe for allegedly sexually 2 21-1125 Roe v. St. John’s University assaulting two women, Jane Doe and Mary Smith, 1 in different countries, several months apart. Roe claims that anti-male bias influenced SJU’s adjudication of the accusations against him, and based thereon, brought suit against SJU in the United States District Court for the Eastern District of New York for violating his rights under Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq., and under state contract law. Roe also sued Doe for defamation based on an alleged anonymous tweet that falsely accused Roe of sexual assault. Roe further contends that SJU’s failure to adequately investigate his claims regarding the tweet subjected SJU to liability under Title IX and for breach of contract. SJU moved to dismiss Roe’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court (Pamela K. Chen, J.) granted SJU’s motion and dismissed Roe’s suit because, the court concluded, Roe had failed to allege sufficient facts to support a minimal plausible inference of sex-based 2 discrimination by SJU. The court also declined to exercise supplemental jurisdiction over Roe’s state-law breach of contract and defamation claims. Roe “Richard Roe,” “Jane Doe,” and “Mary Smith” are pseudonyms adopted for the purposes of this litigation. 1 2 This opinion uses the terms “sex” and “gender” interchangeably. 3 21-1125 Roe v. St. John’s University timely appealed, arguing principally that the district court’s dismissal of his Title IX claims was erroneous. For the reasons set forth below, we disagree and therefore affirm the judgment of the district court. We emphasize at the outset that our focus is on the decisions made and related actions taken by university officials patrolling the behavior of the university’s students. Despite their operation as a panel in a manner much like a federal or state court adjudicating a case or controversy, the officials did not constitute a court of law. Moreover, while this case’s facts involve charges of highly offensive sexual predation by a male student against two female fellow students, we express no opinion as to whether the university selected appropriate punishments for the male student’s alleged transgressions. Instead, our review is principally concerned with whether the district court correctly concluded that the male student failed to plausibly allege that anti-male bias influenced the university’s disciplinary process in violation of his rights under Title IX. 4 21-1125 Roe v. St. John’s University BACKGROUND I. A. Factual Background The Doe Incident According to the allegations in Richard Roe’s complaint in the district court: On April 12, 2018, Roe and Jane Doe were both SJU students studying in Paris, France, lodging in an SJU dormitory there. On their first night in the city, Roe and Doe visited a local club with several other SJU students. Doe asked Roe to dance with her, and he agreed. “[W]hen Roe was back in the dorm, he went to Doe’s room and found her awake and on her phone.” JA 12. “Doe invited Roe into her room and, thereafter, Doe took Roe’s right hand and placed it upon her fully clothed breast.” Id. Roe “immediately said, ‘I am not interested in sex,’” and Doe responded, “[t]hen, get the hell out of here.” Id. Roe then left. 3 B. The Doe Incident’s Aftermath Doe submitted a complaint to SJU accusing Roe of sexual misconduct. SJU notified Roe of Doe’s complaint on September 4, 2018, some five months after the Inasmuch as the issue before us is whether Roe’s complaint filed in the district court “contain[s] sufficient factual matter, accepted as true,” to state a plausible claim for relief, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), Doe’s allegations about Roe’s misconduct have, at most, limited relevance to the questions at hand. 3 5 21-1125 Roe v. St. John’s University events allegedly occurred. The following month, on October 3, 2018, SJU’s “Conduct Board” held a “Conduct Hearing” with respect to Doe’s allegations. Roe attended. Although Roe asserts that SJU was required to follow its own internal policies and procedures when determining the validity of Doe’s complaint against him, Roe has not alleged that this Conduct Hearing was required to provide him with all the procedural protections that he would receive if his case were tried in a federal court. Indeed, SJU’s Student Code of Conduct and Conduct Process (“Student Code of Conduct”) states that the applicable evidentiary standard in a sexual misconduct case is a preponderance of the evidence, a much lower burden of proof than the beyond a reasonable doubt standard that would apply in a federal criminal case. 4 The Student Code of Conduct also states that “[s]trict conformity to the legal rules of evidence shall not be required at hearings.” JA 227. Roe did not include SJU’s Student Code of Conduct as an exhibit to his complaint, but SJU did include the document as an exhibit to its motion to dismiss. The district court nonetheless concluded that it could consider the Student Code of Conduct without converting SJU’s motion to dismiss into one for summary judgment because Roe heavily relied upon the document in his complaint and because the Student Code of Conduct is publicly available on SJU’s website. Roe v. St. John’s Univ., No. 19-CV-4694 (PKC) (RER), 2021 WL 1224895, at *14 (E.D.N.Y. Mar. 31, 2021). Roe has given us no reason to question that conclusion, and Roe himself quotes from the Student Code of Conduct in his appellate briefs. 4 6 21-1125 Roe v. St. John’s University At the October 2018 Conduct Hearing, Roe stood accused of multiple charges in connection with the events of April 12. But the Conduct Board concluded that he had violated only one applicable Student Code of Conduct provision: that prohibiting non-consensual sexual contact. The Conduct Board sent Roe a letter informing him of this finding and notifying him that the Student Conduct Administrator had determined that Roe would receive, in addition to other sanctions, a one-semester suspension for his misconduct. The Conduct Board’s stated rationale for its misconduct finding was that: [Roe] admitted in [sic] engaging in physical contact of a sexual nature with [Doe], and the evidence demonstrated a lack of affirmative consent to engage in such contact. Such evidence included [Doe’s] intoxication, as described by multiple witnesses, and [Roe’s] assertion, which was not disputed, that he was not impaired by alcohol. JA 80–81. 5 Roe appealed his suspension to the SJU administration’s “Conduct Appeals Board” on November 7, 2018. The Appeals Board affirmed the decision and suspension on January 8, 2019, reasoning in part that “[Roe] had admitted to Exhibit F in support of SJU’s motion to dismiss is an incident adjudication report that contains handwritten notes from the October 2018 Conduct Hearing that provide additional explanations for the Conduct Board’s decision. We conclude that consideration of Exhibit F was not necessary to resolve this case and therefore do not reach SJU’s argument that the district court erred by excluding it. 5 7 21-1125 Roe v. St. John’s University the physical touching at issue here and, thus, should have expected a sanction of some kind.” JA 82. C. The Smith Incident According to Roe’s complaint, another woman, Mary Smith, accused Roe of sexually assaulting her in December 2018, while Roe was serving his suspension based on the Doe allegations. Roe alleges in his complaint that on the night of December 15, 2018, Roe and Smith were both at a local bar in New York City where Smith became intoxicated. After the bar closed, a friend of Roe’s agreed to drive Smith back to Roe’s house. A short time after arriving there, Smith went outside to sleep on a concrete patio adjacent to the house. Roe invited Smith to sleep on a couch in the living room instead because it was raining and near freezing outside. Smith accepted. Because Roe was concerned that Smith’s intoxication might cause her to vomit, “he propped her up on her side with her back against the sofa to ensure that she could not choke.” JA 28. Roe then fell asleep at the foot of the couch, and Smith left Roe’s home the next morning without incident. 6 As with the discussion of the Doe incident above, inasmuch as the issue presented in connection with the motion to dismiss Roe’s complaint is whether Roe’s complaint “contain[s] sufficient factual matter, accepted as true,” to state a plausible claim for relief, Iqbal, 556 U.S. at 6 8 21-1125 Roe v. St. John’s University D. The Tweets Roe alleges in his complaint that, on January 4, 2019, shortly after Smith spent the night at Roe’s home during the previous month, the hashtag “#SurvivingSJU” was created, by whom we do not know. Roe further alleges that more than 2,000 tweets were posted under the hashtag on January 4 and that, as a result, it was the “number one hashtag” trending on Twitter in the United States from January 4 to January 6, 2019. JA 15, 17. SJU’s student newspaper reported that in response to the hashtag and the public criticism that the tweets conveyed, SJU would investigate all claims posted under #SurvivingSJU. Roe contends that he was the subject of one among the thousands of tweets published under the hashtag #SurvivingSJU. The tweet, which was posted by an anonymous user on January 4, the same day that the hashtag was created, included a picture of Roe and contained the message “[Roe] was allowed to stay abroad after raping me with no travel restrictions. Only got half a semester suspension.” JA 72. 678, the complete details of Smith’s allegations against Roe in response are not relevant to this discussion. 9 21-1125 Roe v. St. John’s University Roe asserts that “Doe almost instantly ‘liked’ the anonymously posted tweet, and less than 30 minutes later, posted in another tweet from her personal account that she had written a ‘final statement’ for the University Conduct Hearing . . . instead of ‘writing essays’ for her classes.” JA 15–16. Roe claims that “only Doe, Roe and [SJU] officials were informed of Roe’s suspension and the reason for it” and that “the only person who could have authored the [allegedly defamatory] tweet was Doe.” JA 16. Roe asserts that shortly after the tweet was published, a male SJU student threatened him via phone calls and text messages and a female SJU student punched him in the face at a bar. On January 7, 2019, Roe’s attorney brought the tweet to the attention of SJU officials. On January 16, SJU’s Director of Title IX Compliance informed Roe that SJU could not reprimand the individual who posted the tweet because it could not determine his or her identity. On July 18, 2019, Roe’s attorney again contacted an SJU official in an attempt to determine how SJU would respond to the allegedly defamatory and harassing tweet. SJU’s attorney denied that SJU had any obligation to investigate Roe’s claim that Doe was the tweet’s author because SJU did not have any evidence implicating Doe. 10 21-1125 Roe v. St. John’s University E. The Smith Incident’s Aftermath On January 5, 2019—the day after the creation of #SurvivingSJU and the dissemination of the tweet accusing Roe of sexual assault—Smith filed a complaint with SJU against Roe accusing him of sexually assaulting her during the preceding month. On January 7, SJU ordered Roe and Smith to refrain from contacting one another. 7 The next day, SJU suspended Roe pending further investigation. SJU officially notified Roe of Smith’s complaint on June 6, 2019, and scheduled a Conduct Hearing for September 17, 2019, to review Smith’s accusations. Thomas Foley, an SJU attorney, chaired the panel that conducted the September 17 hearing. Foley had also chaired the panel that conducted the hearing regarding Doe’s allegations against Roe in October of the previous year. Following the September 17 hearing, the panel concluded that Roe had violated SJU’s policy governing non-consensual sexual contact but not SJU’s policy governing non-consensual sexual penetration. The panel noted that the evidence supporting its determination included “key inconsistencies in [Roe’s] testimony” and “accounts of [Roe’s] housemates.” JA 143. The panel also concluded that 7 SJU sent Roe another no contact order on January 8. 11 21-1125 Roe v. St. John’s University “key aspects of [Roe’s] account of the events lacked credibility, including his testimony that he turned [Smith’s] face toward the couch in the event she vomited.” Id. On October 2, 2019, Jack Flynn—SJU’s Director of Student Conduct— informed Roe that he was expelled from SJU, effective immediately, for his misconduct. Roe appealed his expulsion to SJU’s Conduct Appeals Board on October 25, 2019. SJU’s Appeals Board affirmed the SJU Conduct Board’s findings and sanctions in all respects and closed the matter on January 15, 2020. See JA 152, 157 (reasoning that “[t]he evidence showed that [Roe] digitally penetrated [Smith’s] vagina” and that “the sanction in this case—expulsion—was the only one justified by the evidence and the record”). II. Procedural History On August 14, 2019, several months before his expulsion, Roe filed this lawsuit against SJU and Doe in the United States District Court for the Eastern District of New York. On February 18, 2020, Roe filed a second amended complaint that alleged that SJU had engaged in sex-based discrimination in violation of Title IX and had breached an implied contract with Roe. He further claimed that Doe had defamed him by authoring and disseminating the 12 21-1125 Roe v. St. John’s University anonymous tweet. On May 8, 2020, Doe asserted counterclaims alleging intentional infliction of emotional distress, negligent infliction of emotional distress, and prima facie tort against Roe. On March 31, 2021, the district court granted SJU’s motion to dismiss Roe’s claims in their entirety. See generally Roe v. St. John’s Univ., No. 19-CV-4694 (PKC) (RER), 2021 WL 1224895 (E.D.N.Y. Mar. 31, 2021). The court held that Roe had failed to state a claim under Title IX; it also declined to exercise supplemental jurisdiction over Roe’s state-law claims and over Doe’s counterclaims, dismissing them. Roe appealed the district court’s judgment to this Court. Doe did not appeal the dismissal of her counterclaims. DISCUSSION I. Standard of Review We review de novo the district court’s grant of SJU’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Cornelio v. Connecticut, 32 F.4th 160, 168 (2d Cir. 2022). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim is plausible ‘when the plaintiff pleads factual content that 13 21-1125 Roe v. St. John’s University allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all factual allegations contained in the complaint are assumed to be true, this rule does not extend “to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). II. Roe’s Argument Under Rule 12(b)(6) Roe first argues that the district court violated Federal Rule of Civil Procedure 12(b)(6) by improperly considering Doe’s allegations regarding Roe’s behavior when granting the motion to dismiss Roe’s complaint. The district court did recount Doe’s competing allegations against Roe in its memorandum and order. Roe, 2021 WL 1224895, at *4. But, as discussed below, Roe has argued that SJU discriminated against him on the basis of his sex by investigating Doe’s and Smith’s accusations of sexual assault more seriously than his allegation that Doe harassed and defamed him in an anonymous tweet. This theory required the district court to give at least some consideration to Doe’s and Smith’s allegations against Roe to compare them with Roe’s accusations. 14 21-1125 Roe v. St. John’s University Moreover, the district court’s memorandum and order decided not only whether Roe had stated a plausible claim against SJU, but also whether to exercise supplemental jurisdiction over Doe’s counterclaims against Roe. Roe, 2021 WL 1224895, at *11, *23. Deciding whether to exercise jurisdiction over Doe’s counterclaims is an issue that also justifies some consideration of Doe’s counterclaims’ alleged factual bases. Finally, the district court recognized its obligation to accept the allegations in Roe’s complaint as true when deciding SJU’s motion to dismiss. See id., at *12. And “[i]n the absence of contrary indications, courts are generally presumed to know the laws that govern their decisions and to have followed them.” United States v. Banks, 464 F.3d 184, 190 (2d Cir. 2006). Other than noting that the district court “referenc[ed] the allegations of Doe’s counterclaims” when issuing its decision, Plaintiff-Counter-Defendant-Appellant’s Br. 22, Roe has given us no reason to conclude that the district court violated its obligations under Rule 12(b)(6). We therefore reject Roe’s argument that we should vacate the district court’s decision because the district court summarized Doe’s recollection of events when describing this case’s factual background. 15 21-1125 Roe v. St. John’s University III. Roe’s Title IX Claims Roe alleges that SJU violated Title IX by discriminating against him because of his sex in, broadly speaking, two different ways. Roe first claims that anti-male bias influenced SJU’s disciplinary proceedings. He also contends that SJU’s failure to investigate his allegations regarding the anonymous tweet that accused him of sexual assault demonstrated deliberate indifference to a hostile educational environment. A. Roe’s Complaints Regarding SJU’s Disciplinary Proceedings Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). 8 Hence, “Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.” Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). A Title IX complaint alleging that a university discriminated against a plaintiff on the basis of the plaintiff’s sex when disciplining the plaintiff sufficiently alleges Although SJU is a private university, it receives federal funds, and Roe has alleged that SJU is therefore subject to Title IX. SJU does not contend otherwise. 8 16 21-1125 Roe v. St. John’s University that the university acted with the discriminatory intent required for a successful Title IX claim when, “like a complaint under Title VII, . . . it pleads specific facts that support a minimal plausible inference of such discrimination.” Doe v. Columbia Univ., 831 F.3d 46, 56 (2d Cir. 2016). This minimal-plausible-inferenceof-discrimination standard is “low,” id. at 48, but failure to meet it is fatal, see, e.g., Doe v. N.Y. Univ., 438 F. Supp. 3d 172, 181, 183–86 (S.D.N.Y. 2020) (noting that “Title IX claims require evidence of intentional discrimination” and granting motion to dismiss the plaintiff’s Title IX claim in part because the plaintiff’s allegations failed to establish a plausible inference of intentional discrimination). “[G]enerally,” a plaintiff “attacking a university disciplinary proceeding on grounds of gender bias” asserts that the university is liable under one or both of two separate theories: an erroneous outcome theory or a selective enforcement theory. Yusuf, 35 F.3d at 715; see also Doe v. Colgate Univ., 760 F. App’x 22, 30 (2d Cir. 2019) (summary order). The essence of an erroneous outcome claim is that due at least in part to the plaintiff’s sex, the university wrongly concluded that the plaintiff committed misconduct. Yusuf, 35 F.3d at 715. To successfully plead such a claim, the plaintiff must allege (1) “facts sufficient to cast some articulable doubt on the accuracy of the outcome of the 17 21-1125 Roe v. St. John’s University disciplinary proceeding” and (2) “circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.” Id.; see also Colgate Univ., 760 F. App’x at 30. The essence of a selective enforcement claim is that “regardless of the [plaintiff’s] guilt or innocence,” the university initiated disciplinary proceedings against the plaintiff or disciplined the plaintiff more severely at least in part because of the plaintiff’s sex. Yusuf, 35 F.3d at 715. Roe argues on appeal that he has successfully pleaded in his complaint that SJU is liable under both an erroneous outcome theory and a selective enforcement theory. 9 Roe contends that both theories are viable in this case We do not dispute the Dissent’s assertion that the erroneous outcome and selective enforcement theories described in Yusuf are not necessarily the only ways in which a plaintiff may show that a university’s disciplinary proceedings exhibited sex-based bias. Dissent 4–5; see also Yusuf, 35 F.3d at 715 (noting that plaintiffs’ claims will “generally” fall within these two categories). In this case, however, Roe’s challenges to SJU’s disciplinary proceedings do fit within Yusuf’s erroneous outcome and selective enforcement categories, and Roe himself framed his claims around these two theories of sex-based discrimination. See Plaintiff-CounterDefendant-Appellant’s Br. 24, 30–31. Determining whether Roe has sufficiently alleged that he was the victim of sex discrimination by analyzing the sufficiency of Roe’s erroneous outcome and selective enforcement theories is also consistent with our precedents, even those that postdate Columbia University. See, e.g., Radwan v. Manuel, 55 F.4th 101, 130–32 (2d Cir. 2022) (utilizing Yusuf’s framework when resolving a Title IX claim); Colgate Univ., 760 F. App’x at 30, 33 (same). 9 We do, however, disagree with the Dissent’s suggestion that reliance on Yusuf is incompatible with the applicable standards under Title IX and Rule 12(b)(6). Dissent 5–6. Several of our recent Title IX cases have cited Yusuf without any suggestion that it placed too high a pleading burden on plaintiffs. See, e.g., Vengalattore v. Cornell Univ., 36 F.4th 87, 103 (2d Cir. 2022); Columbia Univ., 831 F.3d at 55–56; Colgate Univ., 760 F. App’x at 30. 18 21-1125 Roe v. St. John’s University because his complaint contains sufficient factual allegations for a court crediting them to plausibly infer that his sex partially motivated SJU’s decisions to discipline Roe for sexual assault and to not investigate Roe’s allegations about the anonymous tweet. We analyze Roe’s erroneous outcome and selective enforcement claims in turn. 1. Roe’s Erroneous Outcome Claims Roe asserts in his complaint that his sex was a motivating factor in SJU’s decisions to discipline him for allegedly sexually assaulting Doe and Smith. Roe’s argument fails because, even assuming that his complaint alleges “facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding[s],” Roe’s complaint does not sufficiently allege “circumstances suggesting that gender bias was a motivating factor behind the erroneous finding[s].” Yusuf, 35 F.3d at 715. 10 Beginning with SJU’s handling of Doe’s complaint, Roe’s allegations indicating that his sex influenced SJU’s actions can be grouped into two general categories. First, Roe contends that his factual allegations, if proven, indicate that It may bear re-emphasis here that the issue before us is not whether SJU’s determinations respecting Roe’s behavior were incorrect, but if so, whether they were incorrect as a result of gender bias on the part of SJU. 10 19 21-1125 Roe v. St. John’s University SJU provided a baseless explanation for its erroneous determination that Roe had committed sexual misconduct when—according to Roe—Doe grabbed his hand and put it on her breast. Roe asserts that SJU’s justification for its decision to discipline him is misguided inasmuch as SJU based its decision on the facts that Roe “admitted in [sic] engaging in physical contact of a sexual nature with” Doe when she could not affirmatively consent to that contact due to her intoxication. JA 80–81; see also Plaintiff-Counter-Defendant-Appellant’s Br. 33 (“Obviously, the sexual contact to which Roe admitted was a violation of the Student Code by his accuser, not conduct constituting a violation of the Student Code by him.”). Accepting Roe’s version of events as true, as we must at this stage of the litigation, SJU erroneously concluded that Roe violated SJU’s Student Code of Conduct by engaging in non-consensual sexual contact with Doe. But it does not follow that SJU reached this allegedly erroneous outcome due to gender bias. As our cases have long held, such an allegation of an erroneous outcome, absent any additional allegations of fact indicating bias on account of sex, does not state a claim under Title IX. See, e.g., Columbia Univ., 831 F.3d at 57; Yusuf, 35 F.3d at 715 (explaining that a plaintiff proceeding on an erroneous outcome theory must allege facts that cast doubt on the disciplinary proceeding’s outcome and 20 21-1125 Roe v. St. John’s University “allegation[s] relating to a causal connection between the flawed outcome and gender bias”). Roe’s assertion that SJU provided a faulty explanation for its erroneous conclusion also does not convince us that the district court erred by dismissing Roe’s complaint. SJU’s stated reasoning for its conclusion was that Roe admitted to engaging in physical contact of a sexual nature with Doe while she was intoxicated. Roe therefore asserts that SJU’s decision supports an inference of bias because it “[found] him in violation of the St. John’s rules based upon the conduct of Doe taking his hand and placing it upon her breast.” JA 19. Even reading this, as the Dissent does, as an allegation that “SJU accepted his version of events,” Dissent 9, we cannot turn a blind eye to “an obvious alternative explanation” for alleged facts that undermine a plaintiff’s theory of liability, Twombly, 550 U.S. at 567. Here, the obvious alternative explanation, based on the facts alleged by Roe, is that SJU accepted Roe’s concession that he engaged in sexual contact with Doe but did not credit his assertion that Doe initiated the contact. 11 We note that the SJU panel that decided Smith’s complaint against Roe concluded that “key aspects of [Roe’s] account . . . lacked credibility.” JA 143. While SJU did not explicitly note this finding in its explanation for its decision to discipline Roe for the Doe incident, factfinders are 11 21 21-1125 Roe v. St. John’s University Furthermore, the allegation that a university conducted its disciplinary proceedings in a less-than-flawless manner does not automatically permit a factfinder to reasonably infer that a university has committed sex discrimination. For instance, allegations of a deficient Title IX investigation may not be enough to enable a plaintiff to survive a motion to dismiss. See Doe v. Samford Univ., 29 F.4th 675, 689 (11th Cir. 2022). A university’s failure to comply with its internal Title IX policies may similarly be insufficient to support a minimal plausible inference of sex discrimination. See id. at 688 (“A deviation from a Title IX policy is not, in and of itself, a violation of Title IX.”). 12 Finally, even allegations of “potentially serious flaws” in a Title IX plaintiff’s disciplinary proceedings may fail to allege “sufficient facts to support a plausible inference that the irregularities are attributable to sex bias.” Doe v. Stonehill Coll., Inc., 55 F.4th 302, permitted to make decisions on the basis of unstated credibility assessments in settings such as criminal proceedings that are more formal than school disciplinary hearings. See Doe v. Samford Univ., 29 F.4th 675, 691 (11th Cir. 2022). As noted above, Roe’s October 2018 Conduct Hearing was not required to provide many of the procedural protections afforded in a federal criminal trial such as utilization of the beyond a reasonable doubt standard and adherence to the Federal Rules of Evidence. The Dissent discusses Samford at length based on its suggestion that bias against respondents in disciplinary proceedings does not necessarily reflect bias on the basis of sex. See Dissent 17– 21. Because the allegations in Roe’s complaint do not require this court to reach this question, we refrain from responding. 12 22 21-1125 Roe v. St. John’s University 334 (1st Cir. 2022). In short, alleged “procedural errors are not inevitably a sign of sex bias.” Id. Roe’s complaint lacks the factual allegations of significant investigatory and procedural irregularity that have raised a plausible inference of discrimination in similar cases. For instance, the male plaintiff in Columbia University alleged that his university conducted a biased investigation of the sexual assault allegations against him. See 831 F.3d at 49–50. According to the male plaintiff’s complaint, the Title IX investigator’s questioning of him “was akin to cross-examination calculated to elicit a confession,” id. at 49, while the questioning of the plaintiff’s accuser lacked leading questions and was more neutral, id. at 50. The plaintiff in Columbia University also alleged that he reviewed the Title IX investigator’s notes from their previous meeting and that the notes “inaccurately and inadequately paraphrased” his recollection of events. Id. at 50. Finally, the plaintiff alleged that the Title IX investigator failed to interview specific witnesses who could have supported his recollection of events. See id. at 52 (“[The investigator’s report] did not include reference to witnesses who could have supported Plaintiff’s defense, allegedly because [the investigator] had declined to follow the leads Plaintiff had given her.”). 23 21-1125 Roe v. St. John’s University Similarly, in Menaker v. Hofstra University, 935 F.3d 20 (2d Cir. 2019), 13 the male plaintiff accused of committing sexual harassment alleged that he provided the university that investigated those allegations with documents that proved that the accusations against him were false, id. at 29. Similarly, the plaintiff alleged that an official involved in the disciplinary process knew that at least one of the accusations was false and believed the complaint to be a “ploy.” Id. at 28– 29. The male plaintiff also identified particular students who could provide useful information, but whom the university did not interview. Id. at 29. Roe’s complaint does not contain similar allegations pointing to specific ways in which SJU’s investigation of the accusations against him was deficient and biased. He merely complains that SJU justified its decision against him with an unsatisfying explanation. Cf. Doe v. Univ. of So. Ind., 43 F.4th 784, 797 (7th Cir. 2022) (“What we have left are procedural choices that could arguably be considered mistakes. They are not enough to show a likely bias against men.”). We do not think that this allegation rises to the level of the allegations of Menaker was brought by a male university employee under Title VII of the Civil Rights Act of 1964 after he was terminated following a student’s complaint of sexual harassment. 935 F.3d at 26–28. But as we explained in Menaker, “[w]e apply similar principles in both Title VII and Title IX when seeking to identify discriminatory intent.” Id. at 32 (discussing Columbia University’s application to Title VII cases). 13 24 21-1125 Roe v. St. John’s University objectively deficient investigations in Columbia University and Menaker. See Samford Univ., 29 F.4th at 688 (“[A]llegations that are ‘merely consistent with’ liability ‘stop[] short of the line between possibility and plausibility.’” (second alteration in original) (quoting Twombly, 550 U.S. at 557)). Despite these deficiencies, the Dissent argues that we should conclude that SJU’s justification for its allegedly erroneous decision to discipline Roe is itself enough to support an inference of sex bias. Dissent 13–14. But such a conclusion would conflict with this Circuit’s precedents, see, e.g., Yusuf, 35 F.3d at 715 (“[A]llegations of a . . . flawed proceeding that has led to an adverse and erroneous outcome combined with a conclusory allegation of gender discrimination is not sufficient to survive a motion to dismiss.”), and Title IX’s text, which prohibits discrimination only “on the basis of sex,” 20 U.S.C. § 1681(a). And while it may be true that in some cases an erroneous decision is sufficiently “inexplicable” to warrant inferring that the university reached its decision due to sex-based bias, see Doe v. Oberlin Coll., 963 F.3d 580, 588 (6th Cir. 2020), this is not such a case. Roe’s allegations regarding SJU’s treatment of Doe’s accusations against him do not give us “grave” doubts as to “the merits of the decision itself,” id., and they are not serious enough to give rise to a minimal 25 21-1125 Roe v. St. John’s University plausible inference of sex discrimination, see id. (noting that in that case the alleged facts favored the male plaintiff to such a degree that “one could regard this as nearly a test case regarding the College’s willingness ever to acquit a respondent”). Roe’s second category of allegations supporting his argument that his sex influenced SJU’s review of Doe’s complaint against him consists of allegations that SJU treated Doe differently than Roe. For instance, Roe alleges that SJU suspended Roe and not Doe for conduct that, according to Roe’s complaint, Doe initiated and to which Roe did not consent. Roe also points to SJU’s decision not to investigate his allegation that Doe published a tweet accusing Roe of sexually assaulting her. We do not think that these allegations create a minimal plausible inference of sex discrimination. As we will discuss further when analyzing Roe’s selective enforcement theory of discrimination, Roe’s allegations regarding SJU’s different treatment of Roe and Doe are not persuasive because Roe and Doe were not similarly situated. Although Roe’s complaint alleges that it was Doe who initiated sexual contact with Roe, Roe does not allege that he reported Doe to SJU for sexual misconduct. Cf. Doe v. Rollins Coll., 77 F.4th 1340, 1354 (11th Cir. 2023) (affirming 26 21-1125 Roe v. St. John’s University rejection of male plaintiff’s selective enforcement theory of discrimination in part because male plaintiff did not file a sexual misconduct complaint against alleged female victim). We also do not view Roe’s allegation that Doe harassed and defamed him in an anonymous tweet as comparable to Doe’s allegation that Roe sexually assaulted her in light of the differences between the nature and, indeed, seriousness of the two offenses. 14 Roe cites Prasad v. Cornell University, Civ. A. No. 5:15-CV-322, 2016 WL 3212079 (N.D.N.Y. Feb. 24, 2016), for the proposition that “differential treatment between the complainant and respondent in the adjudicatory process” can create a plausible inference of sex discrimination, Plaintiff-Counter-Defendant-Appellant’s Br. 31. But Roe has not explained how SJU treated Roe and Doe differently when reviewing Doe’s complaint other than by not suspending Doe for her alleged behavior. As noted, there were no formal sexual assault charges against Doe. In short, Roe argues that—accepting his allegations as true, as we must on a motion to dismiss—the SJU panel that reviewed Doe’s complaint got it wrong. Roe supports his argument by offering a description of events in which his For these reasons, especially inasmuch as the tweet was not comparable to Roe’s alleged behavior, even if Roe had alleged that Doe published the tweet non-anonymously, which he did not, we do not think that his allegations would give rise to a minimal plausible inference of sex discrimination. 14 27 21-1125 Roe v. St. John’s University behavior was completely innocent and by noting the weaknesses in SJU’s explanation for its decision to discipline him. But Roe’s second amended complaint contains no plausible allegations linking SJU’s alleged error to gender bias. And in light of the absence of “circumstances suggesting that gender bias was a motivating factor behind [SJU’s] erroneous finding,” Yusuf, 35 F.3d at 715, the district court did not err in concluding that Roe’s allegations regarding Doe’s complaint failed to articulate a plausible Title IX claim. Roe also alleges that his sex influenced SJU’s review of Smith’s complaint against him. [W]here a university (1) takes an adverse action against a student or employee, (2) in response to allegations of sexual misconduct, (3) following a clearly irregular investigative or adjudicative process, (4) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances provide the requisite support for a prima facie case of sex discrimination. Menaker, 935 F.3d at 33. Roe argues that his complaint’s allegations meet this standard in light of the #SurvivingSJU “tweet storm” and the procedural irregularities that he argues impacted SJU’s review of Smith’s complaint. We disagree. Beginning with Roe’s allegations about the “tweet storm,” he claims that #SurvivingSJU was the number one hashtag trending on Twitter in the United 28 21-1125 Roe v. St. John’s University States between January 4 and January 6, 2019, and that thousands of tweets under the hashtag criticized SJU’s treatment of women’s sexual assault claims. These allegations do weigh in favor of Roe’s theory of sex discrimination. See Menaker, 935 F.3d at 33. But we have also made clear that public pressure, standing alone, is not sufficient to permit a plaintiff to survive a motion to dismiss. Instead, the pressure must be “combined with clear procedural irregularities in a university’s response to allegations of sexual misconduct.” Id. (emphasis added); see also id. at 33 n.48 (suggesting that evidence of clear procedural irregularity is more important than evidence of outside pressure). Roe has failed to identify any clear procedural irregularities in either SJU’s immediate or ultimate response to Smith’s complaint. Regarding SJU’s immediate response to Smith’s complaint, around the same time that #SurvivingSJU was trending, SJU ordered Roe and Smith to refrain from contacting each other and notified Roe that he would be immediately suspended due to, as SJU later officially informed Roe, Smith’s 29 21-1125 Roe v. St. John’s University sexual assault accusation. 15 These actions were entirely consistent with SJU’s internal procedures. SJU’s Student Code of Conduct describes interim actions that the university may institute after receipt of a complaint. The Student Code of Conduct states that interim actions, including but not limited to “an interim suspension; a ‘no contact’ order with the student who raised the concern or with other students involved or with knowledge of the matter; . . . [and] limitation of privileges to engage in specified University activities,” may be issued “for any student accused of a violation.” JA 223. The Student Code of Conduct also states: Interim actions may be issued in the following circumstances: (1) to ensure the physical or emotional safety and well-being of members of the University or its property; (2) to ensure the student’s own physical or emotional safety and well-being; or (3) if the student poses an ongoing threat or disruption of the normal operations of the University. Around this time, SJU’s Appeals Board affirmed the Conduct Board’s decision to suspend Roe for sexually assaulting Doe. But since the Appeals Board merely affirmed the Conduct Board’s October decision for the reasons the Conduct Board gave for its actions, see JA 83 (“[Roe,] while sober, engaged in physical conduct of a sexual nature with [Doe] . . . [while] lack[ing] affirmative consent to do so.”), and Roe has not alleged any procedural irregularities in SJU’s review of Doe’s complaint other than the Conduct Board’s incomplete justification for its earlier decision, the January “tweet storm” does not change our conclusion that Roe failed to plausibly allege that his sex influenced SJU’s review of Doe’s complaint. 15 30 21-1125 Roe v. St. John’s University .... Once imposed, an interim suspension takes effect immediately. A suspension pending a hearing is not a University sanction, and no notation of it will be made in the student’s transcript or file. JA 223. SJU issued a no contact order between Roe and Smith in January 2019. SJU’s Student Code of Conduct explicitly allows for SJU to issue such an order, and it does not appear to us to be irregular for SJU to have issued this order after Smith accused Roe of sexually assaulting her. While Roe complains that he was suspended on a temporary basis “without any explanation or an opportunity to present his case,” Plaintiff-Counter-Defendant-Appellant’s Br. 41, this suspension was consistent with SJU’s internal procedures, which allow for the issuance of an interim suspension “[a]t any time during the Student Conduct Process, and at the discretion of the Vice President of Student Affairs, the Dean of Students or designee.” JA 223. The suspension also appears reasonable since Roe was accused of sexually assaulting a student while serving the suspension he received for mistreating another student. We do not see any evidence of “clear procedural irregularities” impacting these interim decisions. Menaker, 935 F.3d at 33. 31 21-1125 Roe v. St. John’s University We also are not convinced that Roe has identified any particularly significant irregularities in SJU’s ultimate decision regarding Smith’s complaint. Roe focuses his attention on two principal aspects of the disciplinary process: (1) the Conduct Hearing panel’s composition and deliberations and (2) the Appeals Board’s conclusions. First, Roe asserts that “as a result of the bias of [SJU] officials from the tweet storm, it’s [sic] attorney[, Thomas Foley,] improperly served as chair of the Smith hearing panel.” Plaintiff-Counter-Defendant-Appellant’s Br. 35. 16 But Roe While Roe did not mention his claim about Foley’s appointment as chair in Roe’s counseled brief in opposition to SJU’s motion to dismiss, Roe now raises this claim on appeal. Because it was not raised previously, we need not address it. See, e.g. In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (per curiam). Because Roe devotes so much of his attention on appeal to this claimed irregularity, we nonetheless exercise our discretion to evaluate this claim. We conclude that it is meritless. 16 We decline to exercise our discretion to consider the other alleged procedural irregularities that Roe did not raise on appeal—but on which the Dissent now focuses—such as the claim that Roe was denied the opportunity to present an impact statement regarding the Smith incident and the Dissent’s assertion that SJU’s delay in deciding Smith’s complaint violated a separate SJU policy that the district court deemed inapplicable. As this Court has explained, “[w]e think it reasonable to hold appellate counsel to a standard that obliges a lawyer to include his most cogent arguments in his opening brief, upon pain of otherwise finding them waived.” McCarthy v. SEC, 406 F.3d 179, 186 (2d Cir. 2005). This practice “promotes the orderly briefing and consideration of appeals.” Id.; see also Fed. R. App. P. 28(a)(8) (stating that appellant’s brief “must contain . . . appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”); JP Morgan Chase Bank v. Altos Hornos de Mex., S.A. de C.V., 412 F.3d 418, 428–29 (2d Cir. 2005) (affirming district court’s order granting defendant’s motion to dismiss and holding that “arguments not made in an appellant’s opening brief are waived even if the appellant pursued those arguments in the district court or raised them in a reply brief”); LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995) 32 21-1125 Roe v. St. John’s University has not demonstrated that Foley’s appointment as chair was irregular; 17 SJU policy states that SJU “reserves the right to have an attorney as a part of the Conduct Board hearing process.” JA 227. Moreover, Roe alleges that Foley chaired the Doe panel in October 2018, which further weakens Roe’s assertion that the January 2019 “tweet storm” caused SJU to appoint Foley to the Smith panel. Roe also complains that Foley and the other members of the Smith panel deliberated privately with two other SJU officials—Jack Flynn, SJU’s Director of Student Conduct, and John Breheny, an impartial investigator—before ruling on the charges against Roe. Roe appears to assert that the Smith panel’s deliberations with these officials violated SJU’s Student Code of Conduct’s statement that after the conclusion of all testimony, “the Conduct Board shall meet in private to deliberate the matter.” JA 228. But in part because SJU’s Student Code of Conduct explicitly provides that “[h]earing panel members may separately question [a] Student Conduct Administrator or Title IX Investigator as (“Although [the appellant] stridently opposed the motion, he did not raise this issue in his appellate brief. Consequently, he has abandoned it.”). Roe does claim that “St. John’s Code mandated that the three-member body be chaired by one of its own.” Plaintiff-Counter-Defendant-Appellant’s Br. 35. Roe has not explained, though, why Foley would not qualify as one of SJU’s “own.” 17 33 21-1125 Roe v. St. John’s University appropriate,” id., it is not clear to us that the Smith panel’s expanded deliberations violated SJU’s policies. In any event, any such deviation would appear to us to be minor, insufficient to persuade us that SJU violated Title IX. See Harris v. Niagara Mohawk Power Corp., 252 F.3d 592, 599 (2d Cir. 2001) (“[T]he mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent.” (citation omitted)); Samford Univ., 29 F.4th at 688 (“A deviation from a Title IX policy is not, in and of itself, a violation of Title IX.”). 18 Roe also does not identify any SJU policy that prevented the Smith panel from discussing Roe’s case “before and after the hearing” or otherwise explain how these additional deliberations demonstrate sex-based bias. Plaintiff-Counter-DefendantAppellant’s Br. 38. Our conclusion that this deviation would be minor is based in part on our agreement with the district court that, due to Flynn’s position, it “would seem to be the expected norm” for him to be involved in the disciplinary process. Roe, 2021 WL 1224895, at *22. We also note that while the Dissent claims that Roe has plausibly alleged that Flynn tainted the Smith panel with antimale bias because Flynn was the subject of criticism directed at SJU during the tweet storm for its handling of Title IX complaints, Dissent 38–40, Roe’s complaint does not allege that the tweet storm subjected Flynn to a harsher level of criticism than the many other SJU officials involved in Title IX proceedings. In addition, Roe alleges that Flynn was involved in the October 2018 panel that considered Doe’s allegations and that predated the January 2019 tweet storm, further undermining the suggestion that Flynn’s involvement in SJU’s disciplinary proceedings after the tweet storm was irregular. 18 34 21-1125 Roe v. St. John’s University Second, Roe complains that when the Appeals Board affirmed the Smith panel’s conclusion that Roe violated SJU’s prohibition against non-consensual sexual contact, the Appeals Board stated that “[t]he evidence showed that [Roe] digitally penetrated [Smith’s] vagina while she was asleep.” JA 152. But the Smith panel determined that Roe was guilty of violating only SJU’s policy against non-consensual sexual contact—and not non-consensual sexual penetration—despite Smith’s description of Roe’s alleged assault. JA 142. 19 However, since the Appeals Board recognized that the Smith panel determined that Roe violated only the policy against non-consensual sexual contact, see JA 152 (listing the two charges against Roe and then stating the one charge the Conduct Board found Roe violated), we do not consider the Appeals Board’s statement regarding the evidence against Roe to be a major procedural irregularity. 20 The Dissent describes the Smith panel’s conclusion as “perplexing.” Dissent 33. But as the Dissent recognizes, the record does not contain all the evidence the Smith panel considered when it reached its conclusion. See id. at 34 n.16 (explaining that the evidence against Roe included accounts of Roe’s housemates that are not in the record). We therefore do not see any firm basis upon which we can conclude that the Smith panel’s decision was perplexing or, more importantly, whether the decision was perplexing in a way that lends support to Roe’s theory of sex-based discrimination. 19 For similar reasons, we are not persuaded by Roe’s claim that the Appeals Board acted highly irregularly by allegedly misstating the evidence regarding Doe’s complaint against Roe. See Plaintiff-Counter-Defendant-Appellant’s Br. 14–15 (noting that the Appeals Board stated that 20 35 21-1125 Roe v. St. John’s University In sum, the alleged procedural irregularities are not serious enough to support a claim of sex-based discrimination. See Menaker, 935 F.3d at 34 n.50 (“[W]e emphasize that our standard requires clear irregularities to raise an inference of bias . . . . [M]inimal irregularities (absent other indicia of bias) do not suffice to suggest discrimination.”). And in the absence of clear procedural irregularities, Roe’s allegations regarding the “tweet storm” are insufficient to support denial of the motion to dismiss. See id. at 33 & n.48. We conclude, therefore, that even after considering Roe’s allegations concerning the Doe incident and the Smith incident together, Roe has failed to articulate a viable erroneous outcome claim because he has failed to plausibly allege “circumstances suggesting that gender bias was a motivating factor behind [SJU’s allegedly] erroneous finding[s]” that Roe sexually assaulted Doe and Smith. Yusuf, 35 F.3d at 715. 2. Roe’s Selective Enforcement Claim Roe also argues that SJU engaged in selective enforcement by deciding Doe’s and Smith’s sexual assault complaints against him while failing to Doe was unconscious, but the Doe panel found that she was intoxicated); see also Samford Univ., 29 F.4th at 688–89 (explaining that the availability of obvious alternative “lawful explanations” for procedural irregularities, including “ineptitude [and] inexperience,” undermine the viability of a plaintiff’s Title IX claim). 36 21-1125 Roe v. St. John’s University investigate his theory that Doe published the anonymous tweet accusing him of sexual assault. The district court correctly ruled that Roe’s claim of selective enforcement “fail[s] in the absence of allegations that SJU treated a similarly situated student [of the opposite sex] differently.” Roe, 2021 WL 1224895, at *17. As another district court in our Circuit recently explained, “following Columbia, courts in this circuit have consistently dismissed selective enforcement claims absent allegations that a school treated similarly situated members of the opposite sex—that is, members of the opposite sex facing comparable disciplinary charges—differently.” N.Y. Univ., 438 F. Supp. 3d at 182 (internal quotation marks and citation omitted) (collecting cases). To repeat: Roe and both Doe and Smith were not, in this context and for these purposes, similarly situated. Roe accused Doe of anonymously publishing an allegedly harassing, defamatory tweet. Doe and Smith accused Roe of sexual assault. The allegation that SJU investigated complaints of sexual assault more thoroughly than an allegation of circulation of a harassing and defamatory tweet does not demonstrate selective enforcement. The conduct alleged was not similar. Moreover, SJU observed that it could not “sanction the individual who posted the tweet because [it could] not confirm their identity.” JA 95. Doe’s and 37 21-1125 Roe v. St. John’s University Smith’s complaints, by contrast, were about alleged sexual attacks by a specific individual whose identity was not in doubt. We therefore reject Roe’s selective enforcement theory of sex discrimination. 3. Conclusion For the foregoing reasons, we affirm the district court’s rejection of Roe’s erroneous outcome and selective enforcement theories of discrimination. While Roe has alleged a few significant facts that do indeed weigh in favor of his claims, his allegations as a whole are not sufficient to plausibly support a minimal inference of sex-based discrimination. We note that, accepting Roe’s claims as true, SJU’s treatment of him and the complaints against him may well not have been up to the standards that would apply if the issues that the university officials decided were adjudicated in a federal court proceeding. But Doe’s and Smith’s complaints against Roe were not decided by Article III judges in a federal court—they were decided by school officials in a school setting. Hence, even if we accept Roe’s claimed innocence and agree that SJU’s conduct of Roe’s disciplinary proceedings was not flawless, we conclude that, on the record before us, Roe has not alleged facts that could 38 21-1125 Roe v. St. John’s University reasonably support a minimal plausible inference of sex discrimination. And that is the issue before us. B. Roe’s Hostile Educational Environment Claim Roe brings a separate Title IX claim asserting that SJU’s failure to investigate his allegations regarding the anonymous tweet subjected him to a hostile educational environment in violation of Title IX. This claim fails because the abuse that Roe claims to have suffered as a result of the tweet was not sufficiently severe or pervasive to support a hostile environment claim. Title IX permits a plaintiff to recover damages when he or she is subjected to a hostile environment that constitutes discrimination on the basis of sex and deprives the plaintiff of the ability to enjoy the benefits of an educational program receiving federal funds. See Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999); Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011). The “plaintiff must show that he subjectively perceived the environment to be hostile or abusive and that the environment objectively was hostile or abusive, that is, that it was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of his educational environment.” Papelino, 633 F.3d at 89. A school 39 21-1125 Roe v. St. John’s University may be liable for its deliberate indifference to acts of harassment committed by students against other students. Davis, 526 U.S. at 633. The district court properly dismissed Roe’s hostile environment claim because the alleged harassment of Roe through an allegedly defamatory tweet in this case was not “so severe, pervasive, and objectively offensive that it can be said to [have] deprive[d him] of access to the educational opportunities or benefits provided by the school.” Davis, 526 U.S. at 650. Roe’s claims stem from a single anonymous tweet accusing him of sexual assault. 21 To be sure, the single tweet was broadly disseminated, but “[g]enerally, incidents [of harassment] must be more than episodic [to justify a hostile environment claim]; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (citation omitted). But cf. Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (explaining that in extreme cases, such as rape, a single incident of abuse can give rise to a hostile Roe’s complaint does not indicate that he asked SJU to initiate disciplinary proceedings against the female student who allegedly struck him in the face or the male student who allegedly sent him threatening messages after the tweet was published. Instead, Roe focuses his attention on SJU’s failure to investigate the individual who published the tweet. Regardless, even if Roe’s additional allegations were considered part of his hostile environment claim, they would not change our decision in light of the events’ sporadic and disconnected nature. See Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006). 21 40 21-1125 Roe v. St. John’s University environment claim). We conclude that the single anonymous tweet brought to the attention of SJU here was not, standing alone, sufficiently severe for a court to conclude that Roe was denied access to an educational benefit even assuming that the tweet was, as Roe asserts, false and offensive. Roe’s hostile environment claim is therefore fatally deficient. CONCLUSION We have considered Roe’s remaining arguments on appeal and conclude that they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district court. 41 21-1125 Roe v. St. John's University 1 2 3 PARKER, Circuit Judge, concurring: I concur in the Court’s opinion. In doing so, I am of course aware that 4 university disciplinary processes can present sensitive and difficult adjudicative 5 concerns. See Vengalattore v. Cornell University, 36 F.4th 87, 114-15 (2d Cir. 2022) 6 (Cabranes, J., concurring); Doe v. Miami Univ., 882 F.3d 579, 599-603 (6th Cir. 7 2018); Doe v. Baum, 903 F.3d 575, 581-85 (6th Cir. 2018); Plummer v. University of 8 Houston, 860 F.3d 767, 778-84 (5th Cir. 2017) (Jones, J., dissenting); Doe v. Univ. of 9 Cincinnati, 872 F.3d 393, 403-07 (6th Cir. 2017); Messeri v. DiStefano, 480 F. Supp. 10 3d 1157, 1164-66 (D. Colo. 2020); Doe v. Univ. of Mississippi, 361 F. Supp. 3d 597, 11 608-14 (S.D. Miss. 2019); Doe v. N. Michigan Univ., 393 F. Supp. 3d 683, 693-95 12 (W.D. Mich. 2019); Walter v. Queens Coll., 390 F. Supp. 3d 382, 402-03 (E.D.N.Y. 13 2019). While these issues will undoubtedly come before us in the future, I 14 believe the district court decided this case correctly. 15 I write separately to draw attention to the complicated circumstances 16 under which Saint John’s University (“SJU”) adjudicated Doe’s and Smith’s 17 sexual assault allegations against Roe, circumstances that may require university 18 adjudicators to make difficult decisions in the face of competing considerations. 1 21-1125 Roe v. St. John's University 1 While Roe’s complaint, whose well-pleaded allegations the Court 2 rightfully takes as true at the motion-to-dismiss stage, alleged that it was Doe 3 who initiated sexual contact with Roe before subsequently submitting a sexual 4 assault complaint against him to SJU, Doe’s account of her encounter with Roe 5 differed markedly. Doe and Roe were both SJU students studying abroad in 6 Paris. According to Doe, on the night of the alleged assault, Roe pulled her away 7 from her friends at the club “to dance with him and then he kissed her.” JA 267. 8 Doe further claimed that Roe made her feel uncomfortable “immediately” at the 9 club. She “signaled her discomfort to her friend who came over and pulled Doe 10 away from [Roe] and they rushed to the bathroom together to get away from” 11 Roe. Id. Doe then left the club to return to her residence. After Doe returned to 12 her room and fell asleep, “[Roe] entered Doe’s dorm room while Doe was still 13 sleeping.” Doe recalled that she “awoke to [Roe] on top of her in bed.” Id. Doe’s 14 “pants had been pulled down and [Roe] was digitally penetrating her vagina,” 15 causing Doe to be “frozen in shock” and unable to speak or scream. Doe 16 eventually managed to turn herself over and asked Roe to stop, but instead “felt 17 [Roe] begin to masturbate against her back.” Id. Doe asked Roe to stop once 18 more, and he finally left. Doe’s account is, of course, not relevant to the opinion’s 2 21-1125 Roe v. St. John's University 1 Rule 12(b)(6) analysis, see Majority Op. at 5 n.3, but it demonstrates that during 2 the hearing, SJU was faced with competing accounts of what had transpired 3 between the two. 4 As with Doe’s allegations, the majority opinion correctly refrains from 5 considering Smith’s underlying accusations in its analysis. See id. at 9 n.6. 6 However, both Smith’s allegations and the context in which they were made 7 further underscore that extensively second-guessing SJU’s handling of these 8 accusations is a road we should proceed down with caution. 9 Contrary to Roe’s recollection of their interaction, Smith reported “falling 10 asleep on the living room couch and awakening to discover [Roe] . . . with his 11 hand inside her pants” and “penetrating her vagina with his fingers” without her 12 consent. JA 28. Subsequently, she alleged violations of SJU’s policies against 13 non-consensual sexual contact and non-consensual sexual penetration. The 14 issues surrounding SJU’s consideration of the Smith incident were arguably 15 more complex because they followed the Doe hearing and SJU’s imposition of a 16 suspension on Roe for assaulting Doe. Given this sequence of events, the 17 opinion concludes, SJU reasonably suspended Roe pending further investigation 18 into Smith’s accusations. See Majority Op. at 32. 3 21-1125 Roe v. St. John's University 1 Roe argues on appeal that his due process rights were violated by SJU’s 2 handling of both the Doe and Smith adjudicative processes. But the Court’s 3 opinion correctly notes that any potential procedural errors in SJU’s adjudication 4 do not ipso facto demonstrate sex bias against Roe, as he claims. See id. at 21-23. 5 As the opinion recognizes, school officials are responsible for the 6 education and wellbeing of their students, and they are obligated to balance 7 myriad interests, particularly those of the accused, when dealing with allegations 8 of sexual assault. These officials are not federal judges presiding at criminal 9 trials. See id. at 39. Thus, we should be cautious about reflexively imposing the 10 requirements and expectations of an Article III tribunal on them. Accordingly, I 11 concur. 4 21-1125 Roe v. St. John’s University MENASHI, Circuit Judge, dissenting: When St. John’s University (“SJU”) notified him that a fellow student had accused him of sexual misconduct, Richard Roe (“Roe”) sought to defend himself. He offered an account of the events according to which his accuser, a fellow classmate in the Paris studyabroad program named Jane Doe (“Doe”), grabbed his hand and placed it on her body without Roe’s consent. SJU said it accepted Roe’s version of events—according to which he was not a perpetrator but a victim—but the university suspended him anyway. While serving that suspension, Roe was accused of sexual misconduct by another SJU student, Mary Smith (“Smith”). The accusation came a single day after SJU became subject to widespread public criticism that it did not protect female students from sexual assault. Among those criticisms was an anonymous tweet accusing Roe of assaulting Jane Doe in Paris. SJU swiftly issued an order prohibiting Roe from contacting Smith. But within hours of that order—and following a newspaper article reporting on the criticism of SJU—the university altered course, suspending Roe pending an investigation into the Smith complaint. After several months and numerous procedural irregularities, SJU expelled Roe. Roe then filed this Title IX action, alleging that SJU discriminated against him on the basis of sex. The court admits that, accepting the allegations of the complaint, SJU “erroneously concluded that Roe violated SJU’s Student Code of Conduct,” relied on “a faulty explanation for its erroneous conclusion,” and “conducted its disciplinary proceedings in a less-than-flawless manner.” Ante at 20-22. The court purports to credit Roe’s allegation that “SJU provided a baseless explanation” and a “misguided” justification for its decision to discipline Roe. Id. at 20. Yet the court imagines that there may be an “alternative explanation” for SJU’s flawed treatment of Roe—one which SJU never articulated— that would not involve sex-based bias. Id. at 21. In other words, the court accepts that Roe alleged irregular treatment but concludes that he still cannot state a claim because the court itself can supply a reason for that treatment that does not reflect sex-based bias. In reaching this conclusion, the court fails to credit the allegations of Roe’s complaint and makes factual inferences in favor of SJU—in violation of well-settled principles for reviewing the grant of a motion to dismiss. And the court misconstrues our precedents such that, after today’s decision, most Title IX plaintiffs alleging improper discipline will fail to state a claim. The court seems to be uncomfortable with the requirement of Title IX that schools walk a “razor’s edge” when evaluating allegations of sexual misconduct. Doe v. Univ. of Illinois, 138 F.3d 653, 679 (7th Cir. 1998) (Posner, C.J., dissenting from the denial of rehearing en banc). “One student’s demand for a quick response to her harassment complaint will conflict with the alleged harasser’s demand for due process.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 682 (1999) (Kennedy, J., dissenting). Title IX requires schools to balance both interests; when it fails to do so, it is subject to liability for discrimination. “A recipient’s treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under title IX.” 34 C.F.R. § 106.45(a) (emphasis added); see also id. § 106.45(b)(1) (providing that a grievance process must “[t]reat complainants and respondents equitably”) (emphasis added). The court discounts those authorities providing that the denial of adequate process to a respondent—that is, “basic principles of fairness and due process”— amounts to discrimination in violation of Title IX. Vengalattore v. 2 Cornell Univ., 36 F.4th 87, 115 (2d Cir. 2022) (Cabranes, J., concurring). 1 And it splits from other circuits that have held that an “inexplicable” disciplinary decision raises an inference of sex-based bias. Doe v. Oberlin Coll., 963 F.3d 580, 588 (6th Cir. 2020). Instead, the court holds that plausible allegations of an erroneous conclusion, flawed procedures, and baseless reasoning do not even state a claim under the civil rights laws. I dissent. I I begin with the pleading standard that Roe’s complaint must meet to survive a motion to dismiss. In Doe v. Columbia University, we held that a complaint alleging a Title IX violation must meet the “low standard described in Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015).” 831 F.3d 46, 48 (2d Cir. 2016). Under that standard: [A] complaint under Title IX, alleging that the plaintiff was subjected to discrimination on account of sex in the imposition of university discipline, is sufficient with respect to the element of discriminatory intent, like a The court emphasizes that a university disciplinary process does not necessarily include the same procedural protections as a court. See ante at 4, 6, 22 n.11, 38. It therefore does not matter, says the court, that “SJU’s treatment of [Roe] and the complaints against him may well not have been up to the standards that would apply if the issues that the university officials decided were adjudicated in a federal court proceeding.” Id. at 38. But the question here is whether SJU’s disciplinary actions violated Title IX, not federal court procedural standards. And it is well-established that “procedural irregularities in the investigation and adjudication of the accusations” by a university disciplinary process may indicate discriminatory treatment that violates Title IX. Menaker v. Hofstra Univ., 935 F.3d 20, 31 (2d Cir. 2019). So we must consider the procedural regularity of SJU’s disciplinary process and cannot excuse irregularities on the ground that a university is not a court. 1 3 complaint under Title VII, if it pleads specific facts that support a minimal plausible inference of such discrimination. Id. at 56; see also Menaker, 935 F.3d at 30 (“A plaintiff need only allege facts that give plausible support to a minimal inference of discriminatory motivation.”) (internal quotation marks omitted). Before our decision in Columbia University, the leading case related to student discipline was Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994). In Yusuf, we identified the “erroneous outcome” and “selective enforcement” tests. Id. at 715. When evaluating a Title IX claim under the “erroneous outcome” test, we ask whether a plaintiff alleged (1) “facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding,” and (2) “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.” Id. 2 When evaluating a Title IX claim under the “selective enforcement” test, we ask whether a plaintiff alleged that “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. It is important to note, however, that “[t]he tests in Yusuf … do not capture the full range of conduct that could lead to liability under Title IX.” Doe v. Samford Univ., 29 F.4th 675, 687 (11th Cir. 2022). Title IX prohibits educational programs receiving federal assistance from discriminating “on the basis of sex.” 20 U.S.C. § 1681(a) (emphasis added). Yusuf used the term “gender” to mean “sex”; it did not distinguish between these terms. Though such a distinction might be an issue in other cases, see, e.g., Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 814 (11th Cir. 2022) (concluding that “reading ‘sex’ to include ‘gender identity’” would not “comport with the plain meaning of ‘sex’ at the time of Title IX’s enactment”), the issue is not presented in this case. 2 4 Rather, those tests “simply describe ways in which a plaintiff might show that sex was a motivating factor in a university’s decision,” Doe v. Purdue Univ., 928 F.3d 652, 667 (7th Cir. 2019) (Barrett, J.). Our opinion in Yusuf does not hold that the “erroneous outcome” and “selective enforcement” tests are the exclusive ways for a Title IX plaintiff to state a claim. The opinion says only that plaintiffs challenging university disciplinary proceedings “can be expected to fall generally within [the] two categories” it describes. 35 F.3d at 715 (emphasis added). We know that the Yusuf tests are not exclusive because our subsequent decisions in Columbia University and Menaker did not even attempt to fit the plaintiffs’ allegations into the Yusuf categories. Instead, we explained that the key inquiry was whether a plaintiff’s allegations support a “minimal plausible inference” that he was “subjected to discrimination on account of sex in the imposition of university discipline.” Columbia Univ., 831 F.3d at 56. While the Yusuf tests may be helpful for particular types of cases, a plaintiff’s failure to fit into the Yusuf formula is not a basis for granting a motion to dismiss. A recent decision in this area confirms that we apply the “minimal plausible inference” standard rather than the Yusuf framework. In Vengalattore v. Cornell University, the plaintiff claimed that sex-based bias motivated Cornell in its investigation of the plaintiff’s alleged sexual misconduct and its decision to discipline him. We held that the complaint’s allegations supported an inference of sex-based bias. See 36 F.4th at 109. Nowhere in the opinion did we describe the plaintiff’s claim as an “erroneous outcome” claim per Yusuf. Instead, we asked whether the allegations “support a minimal plausible inference” of sex-based discrimination. Id. at 106. 5 One important reason to apply the Columbia University standard rather than the Yusuf framework is that Yusuf suggested that a plaintiff must show a “particularized … causal connection between the flawed outcome and gender bias.” 35 F.3d at 715. Such a requirement would impose a heightened pleading burden on Title IX plaintiffs, which conflicts with the “low standard described in Littlejohn” that a plaintiff need only provide allegations to support a “minimal inference” of discriminatory motivation. Columbia Univ., 831 F.3d at 48. Yusuf’s confusion on this point may be understandable because Yusuf was decided not only before Littlejohn but before the Supreme Court decisions on which Littlejohn relied. 3 But we have repeatedly admonished district courts to apply the Littlejohn standard and not to impose a heightened “particularized” pleading burden on Title IX plaintiffs. See Columbia Univ., 831 F.3d at 55 n.8 (“We have … cautioned district courts against imposing too high a burden on plaintiffs alleging discrimination at the 12(b)(6) stage.”); Dawson v. N.Y.C. Transit Auth., 624 F. App’x 763, 770 (2d Cir. 2015) (“At the pleading stage, district courts would do well to remember this exceedingly low burden that discrimination plaintiffs face even after they have survived a motion to dismiss.”); see also Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 949 (9th Cir. 2020) (“There is no heightened pleading standard for Title IX claims.”). Today, the court abandons the low pleading standard we described in Columbia University. Although it cites our more recent cases, see ante at 17, the court declines to apply those standards because “Roe’s challenges to SJU’s disciplinary proceedings … fit See Littlejohn, 795 F.3d at 310 (concluding that “Iqbal’s [pleading] requirement applies to Title VII complaints of employment discrimination” in light of Ashcroft v. Iqbal, 556 U.S. 662 (2009), Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). 3 6 within Yusuf’s erroneous outcome and selective enforcement categories” and because Roe’s brief “frame[s] his claims around these two theories of sex-based discrimination.” Id. at 18 n.9. That explanation fails for three reasons. First, it is an overstatement. Roe’s brief mentions the erroneous outcome and selective enforcement tests, see, e.g., Appellant’s Br. 21, 23, but it also references Columbia University’s “minimal plausible inference of … discrimination” framework throughout and without reference to the Yusuf tests, see, e.g., id. at 31 (arguing that “[t]he plaintiff need only allege facts that support a minimal plausible inference of sexual discrimination on the part of the university” such as “differential treatment between the complainant and respondent in the adjudicatory process”). Roe does not “frame[]” his appeal around the Yusuf tests. Second, even if he had, that would not be a reason to confine our analysis to those tests. In Columbia University, the Title IX plaintiff largely did frame his brief around the Yusuf tests, citing the case over a hundred times. See generally Brief for Plaintiff-Appellant-CrossAppellee, Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016) (No. 15-1536), ECF No. 55. Rather than confine our analysis to Yusuf, we announced the proper pleading standard without reference to those tests. 4 The court asserts that confining our analysis to the erroneous outcome and selective enforcement tests is “consistent with our precedents, even those that postdate Columbia University,” citing one opinion and one summary order. Ante at 18 n.9 (citing Radwan v. Manuel, 55 F.4th 101, 13032 (2d Cir. 2022); Doe v. Colgate Univ., 760 F. App’x 22, 30, 33 (2d Cir. 2019)). But in both Radwan and Colgate University, we emphasized that the plaintiffs expressly pursued one particular theory. See Radwan, 55 F.4th at 130 (“In this case, Radwan pursues only a theory of selective enforcement.”); Colgate 4 7 Third, the relevant inquiry focuses on the complaint. Roe’s complaint does not even allude to the Yusuf tests. 5 Yet it unmistakably pleads sex discrimination. See, e.g., App’x 19 (“St. John’s discriminatory bias against Roe as a male student is evident.”); id. at 24 (alleging that SJU “should not have suspended Roe without the due process required by its own policies and procedures”); id. at 34 (“The Conduct Appeals Board[’s] bias against Roe as a male student is reflected in their making factual findings beyond their purview and jurisdiction.”). Roe has not conceded the proposition that Yusuf—and Yusuf alone—controls this case. Even if the court’s analysis under the two Yusuf tests were correct—and I think it is not—the court ignores our precedents by failing to evaluate, outside those tests, whether Roe’s complaint pleaded facts that “support a minimal plausible inference of … discrimination.” Columbia Univ., 831 F.3d at 56. II The complaint did plead such facts—even more clearly than a typical Title IX complaint regarding student discipline. When a university adjudicates a claim of sexual misconduct, it often must evaluate two conflicting stories. If the respondent challenges the university’s decision under Title IX, he typically alleges that the Univ., 760 F. App’x at 30 (“John Doe’s claim proceeds under an ‘erroneous outcome’ theory of gender bias.”). That is unsurprising because a complaint must plead facts, not legal theories. See Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997) (“[T]he failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits of a claim. Factual allegations alone are what matters.”) (quoting Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1988)); see also Newman v. Silver, 713 F.2d 14, 15 n.1 (2d Cir. 1983) (“[F]ederal pleading … is by statement of claim, not by legal theories.”). 5 8 university accepted the complainant’s version of events even though the evidence did not support it. This is not such a case. Instead, Roe alleged that SJU accepted his version of events. That allegation is plausible because the university, in announcing its disciplinary decision, explained that it relied on Roe’s having “admitted” to “engaging in physical contact of a sexual nature with the complainant” and the evidence indicating “a lack of affirmative consent to engage in such contact.” App’x 14. But Roe alleged that the only contact to which he admitted involved Doe taking his hand without his consent. This version of events indicates that Roe engaged in no misconduct, and yet the complaint alleged that SJU nevertheless found him responsible for sexual misconduct and suspended him. These allegations support “a minimal plausible inference” that Roe was “subjected to discrimination on account of sex in the imposition of university discipline.” Columbia Univ., 831 F.3d at 56. A When reviewing a motion under Rule 12(b)(6), “the only facts to be considered are those alleged in the complaint, and the court must accept them, drawing all reasonable inferences in the plaintiff’s favor, in deciding whether the complaint alleges sufficient facts to survive.” Id. at 48. 6 In today’s opinion, however, the court affirms the Although the concurring opinion acknowledges that we must assume the truth of Roe’s allegations in the complaint, it nevertheless recounts factual allegations from Doe and Smith that do not appear in the complaint. Ante at 2-3 (Parker, J., concurring). The concurrence insists that it is necessary to consider these alternative factual accounts to give “context” to the “complicated circumstances under which [SJU] adjudicated … [the] allegations against Roe.” Id. at 3, 1. But the only “context” relevant to deciding a motion to dismiss is what is contained in the complaint and “any written instrument attached to it as an exhibit or any statements or 6 9 district court’s Rule 12(b)(6) dismissal on a basis other than the allegations of the complaint. Despite purporting to credit Roe’s allegations that SJU’s justification of its decision was “faulty” and “baseless,” ante at 20-21, the court supplies an “alternative explanation” for that decision and decides that, given that alternative explanation, it is impossible to infer that SJU discriminated against Roe on the basis of sex, id. at 21. This is a departure from the standard principles for reviewing a dismissal for failure to state a claim. Roe’s second amended complaint makes the following allegations. Roe and Doe were students studying abroad in France. On April 12, 2018, Roe was in Paris at a local club to celebrate a birthday with fellow SJU students studying abroad. Doe asked Roe to dance, and they did. Sometime later, Doe told Roe that she was returning to the SJU dormitory where both were staying. Doe gave Roe her room number and asked him to “check on her” when he arrived at the dorm. App’x 12. Hours later, Roe went to Doe’s room and found her awake and on her phone. “Doe invited Roe into her room and, thereafter, Doe took Roe’s right hand and placed it upon her fully clothed breast.” Id. Roe then told Doe, “I am not interested in sex.” Id. She replied, “Then, get the hell out of here,” and Roe left. Id. On September 4, 2018, SJU notified Roe that Doe had filed an incident report with four complaints against him: (1) non-consensual documents incorporated in [the complaint] by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (quoting Int’l Audiotext Network, Inc. v. AT&T Co., 62 F.3d 69, 72 (2d Cir. 1995)). Doe’s and Smith’s alternative factual allegations do not qualify. The concurrence’s recitation of factual allegations beyond those that appear in the complaint has no purpose but to introduce disputed facts into our review of a motion to dismiss. By contrast, I rely on the factual allegations of the operative complaint. 10 sexual contact on April 12, 2018, (2) sexually inappropriate conduct on April 13, 2018, (3) non-consensual sexual contact on April 13, 2018, and (4) non-consensual sexual penetration on April 13, 2018. See id. at 303-04. About a month later, Roe attended an SJU Conduct Board hearing to evaluate Doe’s complaint. At the hearing, Roe said that Doe “took [Roe’s] right hand and placed it upon her fully clothed breasts.” Id. at 14. In a letter dated October 15, 2018, the Conduct Board notified Roe that he had been found in violation of SJU rules for nonconsensual sexual contact on April 13, 2018, but he was not found to have committed the other three alleged violations. The sole basis for the Conduct Board’s conclusion was announced in its letter: The respondent [Roe] admitted in engaging in physical contact of a sexual nature with the complainant [Doe], and the evidence demonstrated a lack of affirmative consent to engage in such contact. Such evidence included the complainant’s intoxication, as described by multiple witnesses, and the respondent’s assertion, which was not disputed, that he was not impaired by alcohol. Id. The Conduct Board did not specify the “physical contact of a sexual nature” to which Roe “admitted.” Roe alleged, however, that “the only ‘physical contact of a sexual nature’ [to which he] ‘admitted’ was that ‘Doe took his right hand and placed it upon her fully clothed breasts.’” Id. Roe concludes, therefore, that the Conduct Board’s finding must be based on “Doe taking his hand and placing it upon her breast.” Id. at 19. This factual allegation is neither conclusory nor speculative. Accordingly, “[u]nder settled principles of adjudication, 11 we must … accept the well-pleaded facts in the complaint as true.” Washington v. Barr, 925 F.3d 109, 120 (2d Cir. 2019). Indeed, this is exactly how the district court evaluated this case. The district court accepted the truth of Roe’s allegations that the Conduct Board relied on his version of events, and it dismissed his complaint on that basis: [T]he Conduct Board found that Plaintiff “admitted” that he and Doe had engaged in sexual contact, and even though Plaintiff told SJU’s investigator that Doe had initiated that contact, the Conduct Board concluded that Doe was unable to affirmatively consent to the contact due to her intoxication. In other words, even assuming that the Conduct Board accepted Plaintiff’s account of the events, i.e., that Doe had placed Plaintiff’s hand on Doe’s breast, the Board found that Doe did not, and could not, have done so knowingly and voluntarily due to intoxication, and that Plaintiff, who was “not impaired by alcohol,” would have known that. Roe v. St. John’s Univ., No. 19-CV-4694, 2021 WL 1224895, at *18 (E.D.N.Y. Mar. 31, 2021). The district court thus concluded that even though the well-pleaded allegations of the complaint establish that Doe rather than Roe initiated the contact, SJU appropriately found Roe rather than Doe responsible for sexual misconduct because Doe had not consented to her own conduct. B The district court’s reasoning is indefensible, as SJU admits on appeal. SJU acknowledges that if the contact occurred as Roe admitted, then Doe rather than Roe likely violated SJU’s sexual misconduct policy. See Oral Argument Audio Recording at 22:19 (“If 12 that was the version of events, Roe’s conduct would not violate Policy 703 of the university. … In fact, perhaps [Doe] would have been in violation of Policy 703.”). Our inquiry into the rationale behind the Conduct Board’s finding would normally end with the well-pleaded allegations of the complaint. See Doe v. Amherst Coll., 238 F. Supp. 3d 195, 216 (D. Mass. 2017) (“At this stage of the litigation the court is required to credit Doe’s reading of the Hearing Board’s decision on this issue, provided … the reading is plausible.”). In this case, the complaint plausibly alleged that the Conduct Board accepted Roe’s admitted version of events, that those events involved no wrongdoing, and that the Conduct Board disciplined him anyway. Perhaps the Conduct Board’s decision could be explained by further evidence, but that must await later stages of the litigation. See Sabir v. Williams, 52 F.4th 51, 65 (2d Cir. 2022) (Sack, J.) (“[A]lthough the facts at trial or summary judgment might show otherwise, we cannot manufacture such facts out of thin air.”) (internal quotation marks and alteration omitted); see also Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 206 (2d Cir. 1995) (“[The defendant’s] characterization [of a letter] might, if proffered through sworn testimony, raise questions of fact to be resolved at trial. It does not, however, provide a basis for entry of judgment in [the defendant’s] favor as a matter of law.”). Even if there were a possible explanation for the Conduct Board’s decision aside from sex-based bias, moreover, that explanation would again need to await future stages of the litigation. See Sassaman v. Gamache, 566 F.3d 307, 313 (2d Cir. 2009) (“The choice between plausible interpretations … is a question of fact to be resolved by a jury.”). For two reasons, Roe’s allegations about the Doe incident support “a minimal plausible inference” that Roe was 13 “subjected to discrimination on account of sex in the imposition of university discipline.” Columbia Univ., 831 F.3d at 56. First, the Conduct Board’s reasoning indicates that it treated Doe more favorably than Roe. See Littlejohn, 795 F.3d at 312 (“An inference of discrimination can arise from circumstances including … the more favorable treatment of employees not in the protected group.”). The Conduct Board decided that Doe could not consent because she was intoxicated, and it held Roe responsible on that basis. But the Conduct Board disregarded the fact that Roe also did not consent to the contact. In doing so, the Conduct Board treated Doe’s lack of consent more favorably than Roe’s. Such differential treatment supports an inference of sex-based bias. See Doe v. Rollins Coll., 352 F. Supp. 3d 1205, 1211 (M.D. Fla. 2019) (holding that allegations plausibly state a claim for sex discrimination when the information “collected during the investigation could have equally supported disciplinary proceedings against Jane Roe for also violating the Sexual Misconduct Policy”); Doe v. Univ. of Scis., 961 F.3d 203, 210 (3d Cir. 2020) (holding that allegations plausibly state a claim of sex discrimination when the university identified the male “as the initiator of sexual activity, notwithstanding the comparable intoxication of both participants”). 7 The court sidesteps this argument, suggesting that the disparate treatment at issue in this case is that “SJU suspended Roe and not Doe.” Ante at 26. But SJU treated Roe and Doe differently when it decided that Doe did not consent because she was intoxicated, disregarded Roe’s own lack of consent, and held Roe responsible for the contact. Both Roe and Doe were similarly situated in that they both did not consent to the contact. The court also asserts that this dissent relies only on SJU’s justification as creating an inference of sex-based bias, see id. at 25, but I have just explained that the complaint also alleged differential treatment. 7 14 Second, the Conduct Board’s otherwise “inexplicable” decision supports an inference of sex-based bias. Oberlin Coll., 963 F.3d at 588. Such an inference is reasonable because “the more outrageous the decision is, the less likely it is that any errors were made in good faith,” and “when the erroneous decision ceases to be consistent with good-faith mistake, the explanation of improper bias becomes sufficiently likely to cross ‘the line between possibility and plausibility.’” Samford Univ., 29 F.4th at 690 (quoting Twombly, 550 U.S. at 557). C The court avoids the conclusion that Roe has stated a claim by making factual inferences in favor of SJU. The Conduct Board’s justification for its decision may have been “faulty” and “baseless,” the court says, but the faulty decision-making might have been the result of something other than sex-based discrimination. Ante at 2021. Because Roe does not have specific evidence “suggesting that gender bias was a motivating factor behind the erroneous findings,” the court decides that its own alternative explanation must prevail and the complaint must be dismissed. Id. at 19 (alteration omitted) (quoting Yusuf, 35 F.3d at 715). The court hypothesizes that SJU’s faulty decision may have an explanation that would not violate Title IX. Specifically, the court speculates that SJU may have “accepted Roe’s concession that he engaged in sexual contact with Doe but did not credit his assertion that Doe initiated the contact.” Id. at 21. Nothing in the complaint or in SJU’s letter explaining its decision supports this theory of the university’s decision, so the court posits that SJU must have relied on a justification for its decision that it never articulated, such as “unstated credibility assessments.” Id. at 22 n.11. 15 The court identifies no allegations in the complaint that support this or any other alternative explanation. Drawing such inferences violates the requirement that, in reviewing the grant of a motion to dismiss, we “draw all reasonable inferences in the plaintiffs’ favor.” In re Platinum and Palladium Antitrust Lit., 61 F.4th 242, 258 (2d Cir. 2023) (emphasis added) (quoting In re Aluminum Warehousing Antitrust Litig., 833 F.3d 151, 157 (2d Cir. 2016)). Instead of making inferences in Roe’s favor, the court “manufacture[s] … facts out of thin air” to dismiss Roe’s complaint. Sabir, 52 F.4th at 65 (quoting Salahuddin v. Goord, 467 F.3d 263, 275 (2d Cir. 2006)). In doing so, the court supposes that SJU’s otherwise inexplicable decision might have been motivated by something other than a “bias against men.” Ante at 24 (quoting Doe v. Univ. of S. Ind., 43 F.4th 784, 797 (7th Cir. 2022)). This speculation conflicts with the allegations in the complaint, which suggest that SJU was biased against men. For example, the complaint alleged that SJU was criticized by “over 2,000 women” for “allowing accused men to remain on campus.” App’x 24 (emphasis added). By raising the specific issue of sexual misconduct by men, Roe pleads “minimal evidence of pressure on the university to act based on invidious stereotypes,” which we have said “will permit a plausible inference of sex discrimination.” Menaker, 935 F.3d at 33. D The court relies on cases from other circuits that suggest that a university may, consistent with Title IX, impose student discipline based on discriminatory procedures that reflect “a pro-complainant, anti-respondent bias.” Samford Univ., 29 F.4th at 690. Under this view, “discrimination against respondents is not discrimination on the basis of sex and does not permit a reasonable inference of an anti-male bias 16 because both men and women can be respondents.” Id. (internal quotation marks and citations omitted). This view is unpersuasive because an anti-respondent bias is a sex-based bias. See Oberlin Coll., 963 F.3d at 587 (“[T]he 100 percent responsibility rate—in cases where most if not all the respondents were male—supports an inference regarding bias in the hearings themselves.”); Doe v. Miami Univ., 882 F.3d 579, 593 (6th Cir. 2018) (deciding that “the statistical evidence … shows a pattern of gender-based decision-making” in part because “nearly ninety percent of students found responsible for sexual misconduct … have male first names”). It is true that “both men and women can be respondents.” But both men and women can be complainants too—and yet we would never say that a university may escape liability for deliberate indifference to sexual assault because it may have been motivated by an anti-complainant bias instead of an anti-female bias. To the contrary, we say that deliberate indifference to cases of sexual assault by the university ratifies the perpetrator’s targeting of the complainant on the basis of sex, and that satisfies the requirement of demonstrating a sex-based bias. See Davis, 526 U.S. at 644-45 (“If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference … cause[s] students to undergo harassment or make them liable or vulnerable to it.”) (internal quotation marks and alteration omitted); Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997) (explaining that an employer will be liable under Title VII “for sexual harassment on the part of a private individual” when “the employer either ratifies or acquiesces in the harassment by not taking immediate and/or 17 corrective actions when it knew or should have known of the conduct”). 8 We have held that accusations of sexual misconduct work the same way. In Menaker, we explained that a complainant’s decision to accuse a respondent of “sexual misconduct” is “significant, and it suggests that [the respondent’s] sex played a part in [the complainant’s] allegations,” such that a “rational finder of fact” could “infer that such an accusation was based, at least in part, on … sex.” 935 F.3d at 38. In turn, the complainant’s sex-based “intent may be imputed to [the university]” when the university “controlled … the very complaint process by which [the complainant] sought to effectuate her allegedly discriminatory intent.” Id. at 38-39. “[I]nsofar as [the university] negligently or recklessly implemented [the complainant’s] discriminatory design”—as evidenced by “procedural irregularities” in the complaint process—the university has discriminated on the basis of sex. Id. at 39. Under the alternative approach of some courts, however, a university’s treatment of a complainant or respondent will not implicate Title IX if it could have been the product of “anticomplainant” or “anti-respondent” bias. If a university may be excused from biased treatment of a respondent because “both men and women can be” respondents, Samford Univ., 29 F.4th at 690 (quoting Doe v. Univ. of Denver, 952 F.3d 1182, 1197 (10th Cir. 2020)), then a university may also be excused from acting with deliberate See also Catherine A. MacKinnon, In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education, 125 Yale L.J. 2038, 2042-43 (2016) (“As the accounts and data below demonstrate, sexual harassment is gender-based because it is directed against a woman because she is a woman or affects women disproportionately.”) (internal quotation marks and alteration omitted). 8 18 indifference to sexual assault because “both men and women can be” victims of sexual assault as well, id. This approach departs from the established case law in this context. See, e.g., Davis, 526 U.S. at 643 (holding that “deliberate indifference to known acts of harassment … amounts to an intentional violation of Title IX”). The precedents of our circuit do not allow a complaint alleging improper discipline to be dismissed on the ground that the university may have implemented the complainant’s discriminatory design for its own non-sex-based reasons. As in Menaker, in this case the complaint plausibly alleged that the complainant made a sex-based accusation against the respondent, and a factfinder “could plausibly conclude that [the university] was negligent or reckless in acting on [the complainant’s] allegations” in violation of Title IX. 935 F.3d at 39. If a university could escape liability under Title IX because it was biased only against “respondents” rather than men, our case law would look very different. In Columbia University, we concluded that the plaintiff had pleaded actions “motivated … by pro-female, antimale bias” because the administrators “declined to seek out potential witnesses [whom the] Plaintiff had identified as sources of information favorable to him” and violated “procedures designed to protect accused students.” 831 F.3d at 56-57. Such conduct by the administrators was also consistent with an “anti-respondent” bias. But we did not accept such an explanation, observing instead that “[i]t is not the court’s function in ruling on a motion to dismiss for insufficiency of the complaint to decide which was the defendant’s true motivation.” Id. at 56 n.10. Columbia argued that the allegations did “not support an inference of intentional sex discrimination” because “any motivation on the part of the [disciplinary] panel to demonstrate that it takes [sexual assault] complaints seriously is not the same thing as a motivation to discriminate against an accused 19 male student.” Id. at 57. In other words, Columbia argued that the university was biased against the respondent for a reason other than sex. We rejected that argument because it “fails to recognize the court’s obligation to draw reasonable inferences in favor of the sufficiency of the complaint. Iqbal does not require that the inference of discriminatory intent supported by the pleaded facts be the most plausible explanation of the defendant’s conduct. It is sufficient if the inference of discriminatory intent is plausible.” Id. We applied identical principles in Menaker and Vengalattore. In neither case did we ask whether the university’s behavior could be explained by an alternative non-sex-based bias such as “antirespondent bias.” In every case alleging that a respondent was treated unfairly because of sex, the university’s conduct could also be explained by “anti-respondent bias.” If that were a reason for dismissing the complaint, then Columbia University, Menaker, and Vengalattore were all wrongly decided. E Today’s decision heightens the Title IX pleading standard. In Columbia University we said that the alleged procedural irregularities did “not necessarily relate to bias on account of sex” and that other factual allegations gave “ample plausible support to a bias with respect to sex.” Id. (emphasis added). But we did not establish a rigid pleading requirement according to which plaintiffs must rebut alternative possible explanations or establish more than “a minimal plausible inference” that the plaintiff was “subjected to discrimination on account of sex in the imposition of university discipline.” Id. at 56. We did not hold that every plausible claim must be alleged the same way. Nor did we foreclose the possibility that we would join those other circuits that have recognized that the merits of 20 a university’s decision may support an inference of sex-based bias. See, e.g., Purdue Univ., 928 F.3d at 669; Oberlin Coll., 963 F.3d at 588; Samford Univ., 29 F.4th at 690. According to those courts, an erroneous decision that is “inexplicable,” Oberlin Coll., 963 F.3d at 588, or “perplexing,” Purdue Univ., 928 F.3d at 669, can raise an inference of sex-based bias. Unlike the plaintiff in Columbia University, Roe has alleged that the Conduct Board’s reasoning, on its face, is inexplicable except by reason of bias. The court’s decision today creates a split with those circuits that have held that such a decision raises an inference of sex-based bias. Moreover, in Menaker we expressly declined to “define precisely what sort of irregularities meet the standard of ‘clearly irregular investigative or adjudicative process’” and thereby made clear that we have not limited plaintiffs to alleging a particular factual scenario. 935 F.3d at 34. 9 We emphasized that when a school “accept[s] an unsupported accusatory version” of events “over that of the accused,” it supports an inference of bias. 935 F.3d at 34 (alteration omitted) (quoting Columbia Univ., 831 F.3d at 57). Roe did not allege that SJU accepted Doe’s unsupported version of events over his. He alleged something even more inexplicable absent bias: that SJU accepted Roe’s version of events—according to which he was not a For this reason, our role in Title IX student discipline cases is not limited to determining whether the evidence substantially favored Roe but the university inexplicably favored Doe. See Columbia Univ., 831 F.3d at 57. Students may be the victims of discrimination even when the evidentiary record is thin. We must determine whether the allegations support a minimal inference of sex-based discrimination by the defendant. Roe’s allegations focus on the Conduct Board’s reasoning, not the weight of the evidence, and the reasoning supports an inference of bias on the part of SJU. 9 21 perpetrator but a victim—and nevertheless found that he had committed a violation. In the Title VII context, we have never restricted plaintiffs to alleging a specific factual scenario. Rather, “we routinely look to a wide variety of (often subtle) indications that a consideration prohibited by Title VII played a role in the employer’s conduct.” Gregory v. Daly, 243 F.3d 687, 695 (2d Cir. 2001); cf. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (“The method suggested in McDonnell Douglas for pursuing this inquiry … was never intended to be rigid, mechanized, or ritualistic.”). For this reason, a plaintiff may support an inference of discrimination in many ways, including but not limited to “the more favorable treatment of employees not in the protected group[] or the sequence of events leading to the plaintiff’s discharge.” Littlejohn, 795 F.3d at 312 (internal quotation marks omitted). A plaintiff may also allege a “‘mosaic’ of intentional discrimination by identifying ‘bits and pieces of evidence’ that together give rise to an inference of discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (quoting Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998)). We should not treat Title IX claims differently. “[W]e have long interpreted Title IX by looking to the caselaw interpreting Title VII.” Vengalattore, 36 F.4th at 103 (internal quotation marks and alterations omitted); see also Columbia Univ., 831 F.3d at 55-56 (“Title VII cases provide the proper framework for analyzing Title IX discrimination claims.”). 10 I note that some circumstances might implicate relevant distinctions between Title VII and Title IX. See, e.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005) (describing differences in statutory language); Soule v. Conn. Ass'n of Schs., Inc., 90 F.4th 34, 63 (2d Cir. 2023) (Menashi, J., concurring) (noting “important differences between” Title VII and Title IX); 10 22 Today’s decision introduces two errors into our Title IX case law. First, it departs from the straightforward pleading standard of Columbia University that a Title IX plaintiff alleging improper discipline must plead “specific facts that support a minimal plausible inference” of discrimination. 831 F.3d at 56. Instead, the court reverts to Yusuf in requiring such a plaintiff to plead facts that track the erroneous outcome and selective enforcement tests. Second, the court’s decision imposes a new heightened pleading requirement for Title IX plaintiffs. The plaintiff must preemptively refute alternative explanations of biased treatment by pleading “additional allegations of fact indicating bias on account of sex.” Ante at 20. In the court’s view, alleged treatment that involves an erroneous conclusion, flawed procedures, and a baseless rationale—even in the context of a sexual misconduct adjudication— does not “support a minimal plausible inference of sex discrimination.” Id. at 39. In other words, a Title IX plaintiff must plead “direct, smoking gun, evidence of discrimination.” Vega, 801 F.3d at 86 (quoting Richards v. N.Y.C. Bd. of Educ., 668 F. Supp. 259, 265 (S.D.N.Y. 1987)). We long ago rejected such a pleading requirement because discrimination is “elusive,” Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 n.8 (1981), and “clever men may easily conceal their motivations,” Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir. 1979) (quoting United States v. City of Black Jack, 508 F.2d 1179, 1185 (8th Cir. 1974)). Today’s decision provides cover for clever university administrators. Going forward, a Title IX defendant may cite today’s Adams, 57 F.4th at 811 (“Title IX, unlike Title VII, includes express statutory and regulatory carve-outs for … separate living and bathroom facilities.”). This case does not involve those circumstances. 23 decision to argue that as long as its irregular treatment of the plaintiff might be explained on some alternative ground—even one unsupported by allegations in the complaint—the complaint must be dismissed unless the plaintiff has direct evidence that the irregular treatment was based specifically on a protected characteristic. That will prevent plaintiffs from stating otherwise meritorious claims. III The circumstances surrounding Roe’s expulsion also allow for a minimal plausible inference of discrimination. This conclusion follows from “the general principle that where a university (1) takes an adverse action against a student or employee, (2) in response to allegations of sexual misconduct, (3) following a clearly irregular investigative or adjudicative process, (4) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances provide the requisite support for a prima facie case of sex discrimination.” Menaker, 935 F.3d at 33. Roe plausibly alleged that SJU experienced “at least some pressure … to react more forcefully to allegations of male sexual misconduct” and that his expulsion followed a “sufficiently irregular process” that “raise[s] an inference of bias.” Id. at 34. A Roe alleged that his expulsion followed a “tweet storm” that criticized SJU for its handling of sexual assault complaints. On January 4, 2019, the hashtag “#SurvivingSJU” appeared on Twitter and became the top trending hashtag for the next two days. App’x 15. Over 2,000 tweets “detail[ed] alleged experiences of sexual misconduct that had taken place at St. John’s” and “criticiz[ed] St. John’s treatment of female complainants of sexual assault.” Id. at 17. One of those tweets criticized SJU specifically for mishandling the 24 Doe complaint. That tweet read: “[Roe] was allowed to stay abroad after raping me with no travel restrictions. Only got half a semester suspension.” Id. at 72. The tweet faulted SJU for its failure to impose harsher interim relief and a harsher ultimate sanction on Roe. On January 8, SJU’s student newspaper The Torch reported on the tweet storm and SJU’s public statement in response that it would “investigate all claims.” Id. at 74. The tweet storm “provides a backdrop that, when combined with other circumstantial evidence of bias in [a] specific proceeding, gives rise to a plausible claim.” Purdue Univ., 928 F.3d at 669. We have said that, when combined with procedural irregularity, “even minimal evidence of sex-based pressure on the university is sufficient to establish bias on account of sex.” Menaker, 935 F.3d at 33 n.48. As in Menaker, the university in this case faced sustained “internal criticism for its assertedly inadequate response to male sexual misconduct on campus.” Id. at 27. The pressure in this case is even more acute than in Menaker because Roe was specifically identified as part of the campaign of criticism. The anonymous tweet included Roe’s name and picture, accused him of rape, and condemned SJU for failing to punish him adequately. Roe alleged that one day after the tweet, a male student at SJU called Roe and sent text messages threatening to “fuck [Roe] up.” App’x 16. He alleged that a female student “punched [him] in his face at a bar.” Id. at 17. Treating these allegations as true and making all reasonable inferences in Roe’s favor—as, again, we must on a motion to dismiss—it is plausible that the tweet accusing Roe of rape was viewed by SJU students who were upset by Roe’s alleged behavior and SJU’s response. It is difficult to imagine that SJU did not face even “minimal” pressure as a result. Menaker, 935 F.3d at 33. 25 The district court discounted the allegations of pressure because Roe did not allege that SJU “continued to experience any such scrutiny when it conducted the Smith hearing over nine months” after the tweet storm. 2021 WL 1224895, at *22. In Menaker, however, fourteen months passed between public criticism of the university, see 935 F.3d at 27 (“By May 2015, the national press had identified Hofstra as one of several universities under investigation … for possible mishandling of sexual misconduct claims.”), and the university’s consideration of the relevant Title IX complaint, see id. at 28 (noting that the university first “summoned Menaker to a meeting” shortly “after receiving the July 2016 Kaplan Letter”). We did not hold that the public pressure needed to remain constant throughout the university’s adjudication of the claim. See id. at 33 (“[W]e reject the District Court’s attempt to limit Doe v. Columbia to cases where the public pressure on a university is particularly acute.”). But even if we did require acute public pressure, Roe’s allegations support a plausible inference that “such pressure … affect[ed] how the University treated [him] in sexual misconduct disciplinary proceedings on the basis of sex.” Schwake, 967 F.3d at 948. SJU issued Roe an interim suspension on January 8, 2019—just four days after the hashtag began trending and the anonymous tweet was publicized. The suspension not only marked the start of the disciplinary process that led to Roe’s expulsion but was itself a denial of “the benefits of … any education program or activity” under Title IX. 20 U.S.C. § 1681(a). The temporal proximity between public pressure and the imposition of discipline is much closer in this case than in Menaker. Moreover, unlike the criticism in Columbia University and Menaker, the criticism here addressed SJU’s treatment of Roe specifically. That means there is a plausible basis for inferring that the pressure put on SJU in January 2019 affected its decisions to suspend 26 Roe four days later and ultimately to expel him nine months later. The court does not disagree. See ante at 28-29 (“Roe’s allegations about the ‘tweet storm’ … do weigh in favor of Roe’s theory of sex discrimination.”). B “The only remaining question … is whether [Roe’s expulsion] followed a sufficiently irregular process to raise an inference of bias.” Menaker, 935 F.3d at 34. Here, Roe has pleaded facts that, when taken as true, reflect an irregular investigative and adjudicative process. These irregularities support an inference of bias at every stage of the Smith proceedings. “[A]t some point an accumulation of procedural irregularities all disfavoring a male respondent begins to look like a biased proceeding.” Doe v. Regents of Univ. of Cal., 23 F.4th 930, 941 (9th Cir. 2022). So it is here. 11 First, less than twenty-four hours after issuing the no-contact order—which would have allowed Roe to return to campus but not to contact Smith—SJU altered course and suspended Roe without a hearing, an investigation, or even a description of the rules he had The court refuses “to consider” some “procedural irregularities” that it believes were not specifically mentioned in the appellate briefing. Ante at 32 n.16. But those procedural irregularities are facts alleged in Roe’s complaint. See App’x 15 (impact statement); id. at 28-30 (timeline of Smith complaint until expulsion). The court’s insistence that Roe has waived facts alleged in his complaint violates the obligation on a motion to dismiss to take the complaint’s “factual allegations to be true” and to determine whether those facts “state[] a plausible claim for relief.” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). 11 27 allegedly violated. See App’x 17-18. 12 Against the backdrop of the pressure campaign, the decision to suspend Roe before investigating Smith’s allegations supports an inference that the university presumed that Roe was responsible. Title IX, like Title VII, requires that “in the course of investigating [sexual misconduct] claims,” universities “do not presume male [students] to be ‘guilty until proven innocent’ based on invidious sex stereotypes.” Sassaman, 566 F.3d at 314. “[J]ust as the lack of investigation of a reported claim of harassment may factor into the determination of an employer’s liability for discrimination against the complainant, so too may it indicate discrimination by an employer whose adverse determination against the putative harasser otherwise bears indicia of prohibited discrimination.” Id. at 315. The suspension, moreover, represents a departure from SJU’s Students’ Bill of Rights, which affords students the right to “[p]articipate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard.” App’x 117; see also Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (holding that an opportunity to be heard requires, among other things, that “if a student is accused of misconduct, the university must hold some sort of hearing before imposing a sanction as serious as expulsion or suspension”). The failure to provide Roe adequate notice or an opportunity to be heard before issuing the suspension supports an SJU argues that the exhibits attached to Roe’s complaint demonstrate that “[i]t is patently false for Roe to claim that he was not provided with notice of the grounds for his suspension in January 2019.” Appellee’s Br. 32. But Roe was informed only that he was suspended “pending the results of a non-academic disciplinary investigation.” App’x 87. SJU did not inform Roe of the allegations against him, the nature of the allegations, or why the suspension was necessary. 12 28 inference of bias. See Doe v. William Marsh Rice Univ., 67 F.4th 702, 708 (5th Cir. 2023) (explaining that the university’s treatment of the respondent was “deficient” in several ways, including that the respondent was “prohibited from entering campus with only 24hours’ notice” and prior to having a “reasonable opportunity to present his side of the story with the advice of counsel”). The court responds that the interim suspension “was consistent with SJU’s internal procedures” because the Student Code of Conduct says that “[a]t any time” and “at the discretion” of university officials, a student may be issued an “interim action[]” such as “an interim suspension.” Ante at 30-31 (quoting App’x 223). Yet a university cannot insulate itself from allegations that it behaved in a discriminatory fashion simply by writing policies that give it unfettered discretion to impose any sanction at any time. We would never give an employer accused of discrimination such deference in the imposition of discipline. Cf. Lauture v. IBM Corp., 216 F.3d 258, 262 (2d Cir. 2000) (“In the context of a racial discrimination claim brought under federal law, the fact that employment was at will is simply not dispositive.”). Moreover, the court does not acknowledge that SJU also imposes a condition precedent on interim suspensions. SJU’s “You Are Not Alone” pamphlet explains that SJU will impose an interim suspension only if the accused student “presents a continuing threat to the health and safety of the community or the complainant.” App’x 120. 13 It is irregular, therefore, for SJU to impose an interim The “You Are Not Alone” pamphlet provides students with “important information about prohibited conduct, available resources on and off campus, and ways to file a complaint” related to sexual misconduct. App’x 99. The pamphlet purports to be a student’s “first step” in understanding 13 29 suspension without making a finding of dangerousness. There is no indication in the complaint or in the record that SJU determined that Roe posed a “continuing threat” to the community prior to imposing an interim suspension. Second, SJU did not provide Roe with information about Smith’s complaint according to the timeframe its policies require. Policy 703—the applicable SJU policy for “any allegation of sexual misconduct,” App’x 45—provides that “in most cases complaints will be resolved within 60 days,” id. at 63. 14 And the Student Conduct how SJU will resolve allegations of sexual misconduct. Id. at 100. SJU’s Policy 703 states that students “should refer” to the “You Are Not Alone” pamphlet to understand the resources available in that process. Id. at 52. The district court determined that Roe’s “reliance on Policy 703 is misplaced because the Policy makes clear that complaints against students are investigated and adjudicated pursuant to procedures outlined in the Student Code.” 2021 WL 1224895, at *22. But Roe alleged that in “investigating” Doe’s and Smith’s complaints, SJU was “required to follow” Policy 703. App’x 13. The court fails to credit that allegation on a motion to dismiss, even though whether and to what extent Policy 703 applied is a disputed factual issue. The district court concluded that Policy 703 did not apply because the “[a]djudication” subsection of Policy 703 states that “[t]he applicable procedure for remedying a complaint depends on whether the accused is a student, member of the faculty, or staff or administrator.” Id. at 65. But Policy 703 explains that the only procedures applicable specifically to faculty and staff are found in Section VIII, titled “Adjudication of Complaints Against Faculty, Administrators and Staff.” Id. at 66. The other sections of Policy 703 apply to students as well as faculty. Those sections include the process by which a Title IX coordinator investigates a complaint of sexual misconduct, including the implementation of interim remedies. Id. at 61-64. For that reason, when SJU notified Roe of his interim suspension, it “advise[d] [him] to review” the Student Bill of Rights and Policy 703 “for all the information [he] may need.” Id. at 89 (emphasis added). SJU did not reference the Student Code of 14 30 Process, which forms a part of SJU’s Student Code of Conduct, provides that “hearings may be conducted within ninety (90) days of when the incident was documented.” App’x 227. It took SJU six months to inform Roe of the allegations and another three months to hold a hearing. See Oberlin Coll., 963 F.3d at 586-87 (concluding that a similar delay amounted to a clear procedural irregularity). SJU’s failure to follow its own established timetable was especially serious because Roe was suspended from school pending that proceeding. Third, Roe was prevented from submitting an impact statement before the sanction was imposed, despite Smith being allowed to do so. The district court dismissed this allegation as insignificant because “the Student Code does not provide for the respondent to submit an impact statement while the appropriate sanction is being decided on.” 2021 WL 1224895, at *17. The fact that the university maintained a biased policy before applying it to Roe does not mean that the policy does not plausibly indicate bias. The inquiry in this case is whether the alleged facts lead to a plausible inference of bias. A university’s departure from its own policy may indicate such bias, but the policy itself may demonstrate bias as well. Universities cannot avoid liability under Title IX by instituting biased policies. See Regents of Univ. of Cal., 23 F.4th at 940 n.14 (“[E]ven if the University’s policies in place at the time condoned these procedures, Doe is entitled to allege that such policies were inherently problematic, as he has done here.”); see also Schwake, 967 F.3d at 950 (“Contrary to the University’s suggestion that there can be no showing of gender bias because University policy foreclosed an appeal, gender bias is a plausible explanation in light of the background indicia of sex discrimination.”). If Roe were a faculty Conduct at all. See Menaker, 935 F.3d at 34 n.50 (explaining that whether a process is “clearly irregular” depends on, among other things, the “expectations of the parties”). 31 member accused of the same conduct, he would have been able to submit an impact statement, see App’x 64, which suggests that the university has specifically designed the student conduct procedures in a discriminatory way to make it easier to penalize students accused of misconduct. 15 Fourth, the Conduct Board’s decision is, on its face, perplexing. See Oberlin Coll., 963 F.3d at 588 (“[A] ‘perplexing’ basis of decision can support an inference of sex bias.”) (quoting Purdue Univ., 928 F.3d at 669). The Student Conduct Process states that the “purpose” of the hearing before the Conduct Board is “to make findings of fact with respect to the matter before the panel.” App’x 226 (emphasis added). The Conduct Board, however, made no findings of fact apart from its bottom-line conclusions that Roe violated the policy prohibiting nonconsensual sexual contact but did not violate the policy prohibiting non-consensual sexual penetration. See id. at 142-43. It is irregular for a disciplinary board tasked with making factual findings not to make factual findings about the incident being investigated. Without such findings, the Conduct Board’s conclusions are especially perplexing. Smith’s version of events was that Roe engaged in non-consensual penetration. See id. at 28. Roe denied that he engaged in any sort of See Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass. 2016) (“[T]he lowering of the standard appears to have been a deliberate choice by the university to make cases of sexual misconduct easier to prove—and thus more difficult to defend, both for guilty and innocent students alike. It retained the higher standard for virtually all other forms of student misconduct. The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.”); cf. 34 C.F.R. § 106.45(b)(1)(vii) (noting that it violates Title IX not to “apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty”). 15 32 sexual contact at all. The Conduct Board did not agree with either version of events because it concluded that Roe had violated the policy prohibiting non-consensual sexual contact but had not violated the policy prohibiting non-consensual sexual penetration. On what basis did the Conduct Board conclude that neither party’s account of the encounter was correct? The evidence cited in the Conduct Board’s decision does not provide an explanation. 16 The Conduct Board’s perplexing conclusion supports the plausible inference that it decided to find Roe responsible for at least one violation “in order to avoid further negative media attention and to portray a stricter approach to sexual assault cases.” Doe v. Univ. of Arkansas-Fayetteville, 974 F.3d 858, 865 (8th Cir. 2020); see also Regents of Univ. of Cal., 23 F.4th at 939 n.12 (“[One] explanation might be that, when confronted by a claim that lacked merit, the University rushed That evidence consisted of “(1) key inconsistencies in [Roe]’s testimony; (2) the accounts of [Roe]’s housemates; and (3) [that] key aspects of [Roe]’s account of the events lacked credibility, including his testimony that he turned [Smith]’s face toward the couch in the event she vomited.” App’x 143. We do not know what the housemates alleged because the Conduct Board did not say. The court defends the Conduct Board on the ground that, because “the record does not contain all the evidence the Smith panel considered when it reached its conclusion,” there is no “firm basis” to conclude that the Conduct Board’s decision was perplexing. Ante at 35 n.19. But the lack of a complete record is not a proper ground for granting a motion to dismiss. Instead, we must credit the allegations of the complaint. In his complaint, Roe has plausibly alleged that the Conduct Board acted irregularly because, despite being charged with making factual findings, it issued only legal conclusions. Perhaps a developed record would eventually reveal that the Conduct Board relied on sufficient evidence. But we will never see a developed record because the court has erroneously decided, at the motion-to-dismiss stage, to affirm the dismissal of the complaint because the record has not been developed. This is yet another departure from the standard principles for evaluating a motion to dismiss. 16 33 to judgment in issuing the two-year interim suspension and then sought out a way to find the accused responsible for something in order to justify its earlier actions.”); Miami Univ., 882 F.3d at 593 (concluding that an “unexplained discrepancy” supported an inference of sex-based bias). Fifth, Roe alleged that the Appeals Board engaged in erroneous appellate factfinding that contradicted the conclusions of the Conduct Board. The Appeals Board stated that Roe was found to have “digitally penetrated [Smith’s] vagina while she was asleep at an off-campus private house.” App’x 152. But the Conduct Board never made such a finding. In fact, the Conduct Board found that Roe did not engage in non-consensual sexual penetration. See id. at 30. Referring to the Doe proceedings, the Appeals Board observed that Roe “twice committed violations of a sexual nature” in which the victim was “unconscious.” Id. at 157; see also id. at 153 (describing the Doe case as involving “an unconscious victim”). But at no point did the Conduct Board—in its evaluation of either the Doe complaint or the Smith complaint—find that the complainant was “unconscious.” The Appeals Board relied on these allegedly erroneous findings to affirm Roe’s expulsion. The Appeals Board concluded that “the sanction in this case—expulsion—was the only one justified” because “Roe has now a demonstrable history of preying on women while they were in a vulnerable state.” Id. at 157. 17 The court acknowledges that the Appeals Board’s factfinding is a procedural irregularity. But the court announces that it does “not Doe claimed that Roe engaged in digital penetration while she was asleep, but the complaint plausibly alleged that the Conduct Board did not credit those allegations. Perhaps “the facts at trial or summary judgment might show otherwise,” but the plausible allegations at this stage support an inference that the Appeals Board acted irregularly. Sabir, 52 F.4th at 65. 17 34 consider the Appeals Board’s statement regarding the evidence against Roe to be a major procedural irregularity” and therefore the irregularity is “not serious enough to support a claim of sex-based discrimination.” Ante at 35-36 (emphases added). The court reasons that the Appeals Board “recognized that the Smith panel determined that Roe violated only the policy against non-consensual sexual contact,” so its factual statement to the contrary was a minor irregularity. Id. at 35. But that is backwards. The fact that the Appeals Board recognized that the Conduct Board did not find that Roe violated the policy against non-consensual sexual penetration makes it more perplexing that the Appeals Board went on to rely on its own improper finding that Roe did engage in such conduct. In sum, the factfinding body (the Conduct Board) failed to find facts but nevertheless concluded that Roe violated school policy and expelled him. Then the appellate body (the Appeals Board) improperly found its own new facts in order to ratify the expulsion. The process reflects “the philosophy of Lewis Carroll’s Queen of Hearts: ‘Sentence first—verdict afterwards.’ This is the opposite of procedural regularity.” Menaker, 935 F.3d at 36 (footnote omitted) (quoting Lewis Carroll, Alice’s Adventures in Wonderland (1865)). Sixth, Roe alleged that SJU “failed to undertake an ‘impartial’ investigation” of the tweet that accused him of sexual assault after he filed a complaint with the university. App’x 22. That failure, he argues, “stands in stark contrast with St. John’s treatment of Smith’s complaint.” Appellant’s Br. 23. The differential treatment of complaints supports an inference of sex-based bias. See Doe v. Princeton Univ., 30 F.4th 335, 344 (3d Cir. 2022) (“Doe has plausibly alleged that he reported a violation that was not investigated by the University. And that, in turn, plausibly supports the inference that sex was a motivating factor in Princeton’s investigation.”); Amherst Coll., 35 238 F. Supp. 3d at 218 (“[S]pecific factual allegations that the College responded differently to similar reports when the genders of the potential victims and aggressors were different … provide a foundation from which a court can infer gender-based discrimination may have played a role in the College’s responses.”). 18 Roe plausibly alleged that “[a]bsent the sexual misconduct proceeding and the alleged pressure that the University faced regarding its handling of sexual misconduct complaints,” Roe’s complaint would have been taken seriously. Schwake, 967 F.3d at 950-51. The failure to address Roe’s complaint—coupled with the alleged pressure on SJU— supports a plausible claim of sex discrimination. See Univ. of Scis., 961 F.3d at 211 (“[W]hen Doe’s allegations about selective investigation and enforcement are combined with his allegations related to pressure applied by the 2011 Dear Colleague Letter, we conclude that he states a plausible claim of sex discrimination.”). The court insists that “Roe and both Doe and Smith were not … similarly situated” because “Roe accused Doe of anonymously publishing an allegedly harassing, defamatory tweet” whereas “Doe and Smith accused Roe of sexual assault.” Ante at 37. But Roe did not allege that SJU investigated his complaint less “thoroughly.” Id. He alleged that SJU “failed to undertake an ‘impartial’ investigation” at all, even though such an investigation was required by SJU policy and See also Doe v. Syracuse Univ., 341 F. Supp. 3d 125, 139 (N.D.N.Y. 2018) (holding that allegations that the university sua sponte initiated sexual assault proceedings against the male plaintiff, but not against a female student, based on an incident in which both parties were intoxicated, state a plausible selective enforcement claim). 18 36 Title IX. App’x 22. 19 SJU stated that “the University cannot sanction the individual who posted the tweet because we cannot confirm their identity.” App’x 22. But that is not a reason to forgo an investigation; it is a reason to undertake one. Had SJU taken Roe’s complaint of harassment seriously, it could have at least inquired of Doe whether she sent the tweet, as Roe had alleged. Had its investigation yielded no answers, perhaps then SJU could have concluded it was not possible to confirm the sender’s identity. The court may be correct that the seriousness of the complaints against Roe justified a greater investigative effort than did Roe’s complaint against Doe. But that does not justify SJU’s decision to undertake no investigation whatsoever into Roe’s complaint. It is at least plausible that the refusal to undertake an investigation indicates bias. Seventh, Roe plausibly alleged that Director of Student Conduct Jack Flynn tainted the Conduct Board’s decision. We have held that an “impermissible bias of a single individual at any stage of the … process may taint the ultimate [adverse] decision even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the process.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 125-26 (2d Cir. 2004) (alterations omitted) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999)); see also Holcomb v. Iona Coll., 521 F.3d 130, 143 (2d Cir. 2008). If a biased employee “influenc[ed] the adverse action by a non-biased Roe notes that SJU’s director of Title IX compliance, Keaton Wong, responded to his email, which might be understood as the first step in an investigation. But Wong’s email reflected no interest in investigating. Wong simply thanked Roe for his email, disclaimed any chance of identifying the sender of the tweet, and forwarded Roe a copy of the “You Are Not Alone” pamphlet. App’x 22. 19 37 decision-maker,” then the adverse decision is actionable. Columbia Univ., 831 F.3d at 59. The criticisms that SJU faced during the tweet storm implicated Flynn as the person who decided on interim actions and sanctions. Under these circumstances, “[i]t is plausible that [Flynn] was motivated to refute those criticisms by siding with the accusing female and against the accused male.” Id. at 58. We have previously held that a complaint states a plausible Title IX claim when it alleges that an administrator who “had suffered personal criticism in the student body for her role in prior cases in which the University was seen as not taking seriously the complaints of female students” had “significant influence, perhaps even determinative influence, over the University’s decision.” Id. Roe alleged that here. Roe alleged that Flynn “suspend[ed] Roe before investigati[ng]” the Smith complaint “without due explanation.” App’x 33. Roe further alleged that Flynn then manipulated the conduct of the hearings to justify his suspension decision: Flynn allegedly “[s]elect[ed] the members of both appeal and hearing panels,” id.; “[c]oach[ed] the investigator to testify adversely [against] Roe,” id. at 34; “conferred with the impartial investigator … and members of the [Conduct Board] panel, both in advance of the hearing and thereafter,” id. at 30; “[a]sk[ed] … to expedite the … appeal decision due to pressure of over 2,000 tweets by female students against St. John’s,” id. at 33; and “[c]onspir[ed]” with a member of the Appeals Board to disallow Roe from submitting a written impact statement, id. at 34. The fact that Flynn was “responsible to ensure that all student conduct proceedings are carried out in accordance with the Student Conduct Process,” id. at 155, is enough to support a reasonable inference that Flynn had “supervisory authority [and] institutional influence in recommending and thus influencing” the Conduct Board’s decision. Columbia Univ., 38 831 F.3d at 59. Flynn was also responsible for deciding the appropriate sanction. See App’x 230 (“The sanctions … are imposed by the Office of Student Conduct.”). And it is plausible that the bias that affected the interim suspension would also have motivated the eventual expulsion. See Amherst Coll., 238 F. Supp. 3d at 223 (holding that a claim of sex discrimination was plausible based on the allegation that “the College intended [the plaintiff’s] punishment to appease campus activists who sought the expulsion of a male student”). C Like the irregularities alleged in Columbia University and Menaker, SJU allegedly failed to follow its own procedures, failed to investigate Roe’s complaint, and reached decisions that were perplexing and based on incorrect or unproved versions of the facts. Other circuits have held that similar allegations are enough to state a claim under Title IX. See, e.g., Schwake, 967 F.3d at 951 (holding a claim to be plausible based on allegations that the university failed to consider the accused’s version of the alleged assault); Purdue Univ., 928 F.3d at 669 (holding a claim to be plausible based on allegations that the university’s Title IX investigator credited the story of the female accuser over the male accused when the investigator had never spoken with the accuser); Baum, 903 F.3d at 586 (holding a claim to be plausible based on allegations that the appeals board exclusively credited female testimony and rejected male testimony). Like the allegations in those cases, Roe’s allegations provide “circumstantial evidence of bias in [his] specific proceeding” that, when combined with the allegations of sex-based pressure, “gives rise to a plausible claim.” Baum, 903 F.3d at 586. “There is nothing implausible or unreasonable about the Complaint’s suggested 39 inference that the panel adopted a biased stance in favor of the accusing female and against the defending male … in order to avoid further fanning the criticisms that [SJU] turned a blind eye to such assaults.” Columbia Univ., 831 F.3d at 58. IV Independent of his claims for improper discipline, Roe alleges that SJU was deliberately indifferent to a hostile educational environment because it failed to respond to the anonymous tweet accusing him of rape. I agree that the district court was correct to dismiss this claim because the alleged harassment was not “so severe, pervasive, and objectively offensive that it can be said to deprive [him] of access to the educational opportunities or benefits provided by the school.” Ante at 40 (quoting Davis, 526 U.S. at 650). I note that the district court nevertheless erred when it dismissed Roe’s claim on the ground that the tweet “was based on [Roe’s] alleged past conduct, not his gender.” 2021 WL 1224895, at *20. In Menaker, we held that a student’s false accusation of sexual misconduct was plausibly “motivated, at least in part, by Menaker’s sex.” 935 F.3d at 38. The student, we explained, did not accuse Menaker of just any misconduct; she accused him of sexual misconduct. That choice is significant, and it suggests that Menaker’s sex played a part in her allegations. A rational finder of fact could therefore infer that such an accusation was based, at least in part, on Menaker’s sex. Id.; see also Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 149 (2d Cir. 2014) (observing that “false statements … intended … to establish a claim of racial harassment … could be viewed by a reasonable observer as themselves racial harassment”). So too here. Assuming, 40 as we must on a motion to dismiss, that the tweet falsely accused Roe of rape, then the tweet would represent sex-based harassment. Still, for the other reason the court provides, I would affirm the district court’s dismissal of Roe’s claim alleging deliberate indifference. * * * Universities subject to Title IX must ensure that students are not denied educational opportunities because of sex-based discrimination. In the context of discipline arising from alleged sexual misconduct, schools must investigate allegations of misconduct, lest the victims be deprived of educational opportunities, and must afford procedural protections to the accused, lest those students be similarly deprived. See 34 C.F.R. § 106.45(a). Universities are not free to “favor the accusing female over the accused male, so as to protect … the University from accusations that [the University] had failed to protect female students from sexual assault.” Columbia Univ., 831 F.3d at 57. A university may not “expel first and ask questions later.” Foster v. Bd. of Regents of Univ. of Mich., 982 F.3d 960, 969 (6th Cir. 2020). Yet today the court tells SJU that it need not provide defensible reasons for suspending men accused of sexual assault. It authorizes a university to provide an accused student with flawed procedures and then to rely on “a faulty explanation for its erroneous conclusion” that he should be expelled. Ante at 21. And it tells SJU that a litany of procedural irregularities will be excused absent specific evidence that refutes whatever alternative explanation for the irregularities a court might imagine. That approach is inconsistent with our precedents and with Title IX. None of these considerations necessarily mean that Roe should ultimately prevail in this case. See Purdue Univ., 928 F.3d at 670 (“To 41 be sure, John may face problems of proof, and the factfinder might not buy the inferences that he’s selling.”). Perhaps SJU followed a more regular process and had a more reasoned justification for its decisions than the complaint describes. But “[w]e are limited here to the allegations in the complaint and the evidence in the attachments to it. … [A]lthough the facts at trial or summary judgment might show otherwise, we cannot manufacture such facts out of thin air” but should require SJU to establish those facts. Sabir, 52 F.4th at 64-65 (internal quotation marks and alteration omitted). Because Roe’s “allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex … his claim should have made it past the pleading stage,” and we ought to reverse the district court’s “premature dismissal of it.” Purdue Univ., 928 F.3d at 670. Accordingly, I dissent. 42
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