Doe v. Texas Christian University
Civil Action No. 4:22-cv-00297-O (N.D. Texas, 2022)
By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG Consulting
John Doe is a student at Texas Christian University (“TCU”). Doe and another TCU student, Jane Roe, dated in high school. At TCU, they maintained a sporadic sexual relationship. After the relationship ended, Roe filed a complaint with TCU accusing Doe of sexually assaulting her on two separate occasions. After an investigation and hearing, a Title IX panel found Doe responsible for one sexual assault allegation. The panel suspended Doe until May 2023. In his lawsuit, Doe claimed the panel improperly suspended him, asserting gender bias, and moved for a preliminary injunction to lift the suspension.
PROCEDURAL HISTORY
Plaintiff filed a Motion for a Temporary Restraining Order and Preliminary Injunction on April 12, 2022. On April 26, 2022, the court held a hearing and oral argument, rendering a decision on April 29, 2022.
SUMMARY OF FACTS
The first reported incident occurred in Roe’s on-campus room in August 2020. Roe alleged that Doe digitally penetrated her vagina without consent. Doe asserts Roe began grinding on him, at which point Doe began to put his hand down Roe’s pants but stopped when she said no.
Roe and Doe exchanged text messages shortly afterward. Doe apologized, citing his lack of self-control. Roe responded that she “…never said yes once that whole time…I said no loudly and never once said yes.” Doe continued to apologize that he behaved badly, to which Roe replied, “rapists say the same thing.” Doe responded, “[O]h my god – i’m one of those aren’t i [sic].” Roe then told him, “I don’t think it’s rape.”[1]
The second reported incident took place in Austin, Texas in October 2020. Doe and Roe traveled separately to Austin for a football game. Roe called Doe after having a nightmare about a sexual assault. Doe picked Roe up from her hotel and brought her to the apartment where Doe was staying. They disagree about what happened next. Roe reported repeatedly rebuffing Doe’s sexual advances while trying to sleep; Doe asserts they had consensual sex before he drove Roe back to her hotel in the morning.
Doe and Roe continued to see each other over the next few months, exchanging messages and having consensual sex at least once more. Doe continued to apologize for his behavior, at one point messaging, “[I]t was difficult for me hearing than i am a rapist again but it is true and i am very sorry [sic].”[2]
Doe began dating someone else in January 2021 and stopped seeing Roe. Approximately one year later, in October 2021, Roe filed a formal complaint with TCU. TCU issued a preliminary investigation report noting that Roe “refused to provide detailed answers to questions poser [sic] in her interview.”[3] Doe and Roe submitted responses and addenda to the report, with Roe’s response containing text messages, photos, and emails as exhibits. TCU issued a final investigation report, to which Doe and Roe submitted timely responses.
Before the hearing began, the panel chair — a retired California state judge — excluded several large batches of evidence, including text messages and photos Doe and Roe exchanged after the reported incidents. Notably, the panel chair excluded a message Roe sent to Doe after the first incident in which Roe said, “I don’t think it’s rape.”[4] The panel chair asserted the excluded evidence was submitted late and “not shown to be unavailable at the time of the investigation,” and “their ‘relevance…was more prejudicial than probative of a material fact.’”[5] Though the panel chair admitted some texts and other evidence, he excluded nearly all of Doe’s submitted evidence.
The panel concluded that Doe violated TCU’s policy regarding the first allegation but not the second allegation. The panel gave weight to the texts immediately following the encounter in which Doe apologized and admitted to being a rapist, as well as texts sent months later to Roe’s friend in which Doe confessed to being a “bad person” who had made “irredeemable mistakes.”[6] The panel asserted that Doe would not have made those statements or apologized if he had not sexually assaulted Roe.
Regarding the second allegation, the panel determined that it lacked Title IX jurisdiction because the incident occurred off-campus. Nonetheless, they addressed the allegation because the incident fell within TCU’s student conduct policy. The panel determined the second incident did not violate TCU’s policy. The panel gave weight to the fact that Roe said nothing about the sexual encounter to her friend during their car ride back from Austin to Fort Worth following the reported incident. Additionally, the panel found it important that Doe and Roe continued to communicate and have consensual sex with each other for several months after the trip to Austin.
When the panel detailed its findings, it did not reference evidence Doe provided regarding Roe’s jealousy of Doe’s new relationship. Doe alleged Roe harassed Doe’s new girlfriend throughout 2021. Additionally, the panel did not address the inaccuracies and inconsistencies in Roe’s contributions to the investigation report.
In February 2022, the panel chair prepared a report detailing the panel’s decision to suspend Doe until May 2023. Doe appealed, but the appeal decision-maker upheld the panel’s determination. Doe applied to different schools but was unable to transfer while under suspension.
FINDINGS AND SIGNIFICANT ISSUES
For a plaintiff to prevail in a motion for an injunction, they must demonstrate a likelihood of success on the merits of their claim. Doe relied on an erroneous outcome theory, alleging that gender bias was a motivating factor in the panel’s decision. The court found that Doe successfully cast “articulable doubt on the accuracy of the outcome.”[7]
The court stated that the panel’s decision to find Doe in violation of only one allegation is illogical, asserting that the panel arbitrarily applied evidence to one allegation although the evidence was clearly applicable to both reported incidents. For example, the panel cited two reasons for finding Doe not responsible for the second allegation: (1) after the incident in Austin, Roe neither told her friend about the encounter nor asked for help; and (2) Roe and Doe continued to have consensual sex with each other after the incident. However, both of those facts were also true for the first reported incident. Moreover, the panel cited two reasons for finding Doe responsible for the first reported incident: (1) Doe admitted to being a rapist in text messages to Roe; and (2) Doe admitted to being a bad person in messages to Roe’s friend. However, both of those facts are also true for the second incident. The court argued that “[c]oncluding that a thing is both true and not true is, by definition, erroneous.”[8]
In addition, the court asserted that the panel disregarded Roe’s motive to lie — jealousy of Doe’s new girlfriend — as the record indicated Roe targeted Doe’s girlfriend for harassment throughout 2021. Roe’s response to the investigation report was also full of contradictions and false statements. Lastly, the panel chair excluded a significant amount of exculpatory evidence Doe offered. According to the court, the exclusion of exculpatory evidence was further evidence of an erroneous decision.
The court also held that alleging multiple procedural irregularities may support a finding of gender bias, particularly when they consistently favor the complainant. In support of its conclusion, the court cited the irrational basis for the panel’s decision and the exclusion of exculpatory evidence, an act that violated TCU’s own policies and the federal Title IX regulations. The court also took issue with consolidating the two allegations into a single proceeding since the allegations did not arise out of the same facts or circumstances.
Separately, the court cited concerns with hearing co-chair’s published works, asserting that her dissertation examining gender norms and moral behavior was evidence of possible gender bias.
Ultimately, the court granted the Temporary Restraining Order and Preliminary Injunction.
KEY TAKEAWAYS
- In this case, TCU outsourced its hearing chairperson role to a retired judge. Under the Title IX regulations and the Violence Against Women Act, all decision-makers — including third-party contractors — are required to have training on the recipient’s specific policies and procedures. Regardless of their professional or academic credentials, recipients cannot assume that third-party contractors are sufficiently trained without due diligence to verify that all investigators and decision-makers have the required training. Outsourcing Title IX services does not release recipients from their Title IX obligations and Title IX Coordinators need to exercise their compliance oversight responsibilities when outsourcing investigatory or decision-making responsibilities.
- The standard rules of evidence do not apply to Title IX grievance procedures. With a few exceptions, a decision-maker must consider all relevant evidence. Remember, decision-maker(s) make(s) the final decision regarding relevance, not the investigator or Title IX Coordinator.
- There is no Title IX standard that allows a decision-maker to determine whether prejudicial value outweighs probative value, which is a standard applicable only in court. This may be one of the pitfalls of hiring retired judges who don’t distinguish between the court standards they have used for many years and the unique standards applicable to Title IX proceedings.
- Procedural irregularities open the door for courts to take a closer look at the process and the result. Here, the court cited procedural irregularities as evidence of possible gender bias. Recipients should avoid deviating from their written policies and procedures without agreement from all parties in advance of the deviation.
- Title IX Coordinators need to be mindful of the perception of bias among Title IX team members. Although many courts may not consider a dissertation topic sufficient evidence of bias, here the co-chair’s dissertation provided another red flag in the full context of the case. Title IX Coordinators should not necessarily avoid enlisting the help of individuals who publish or teach subjects related to Title IX – because good help can be hard to find, especially at smaller institutions – but Title IX Coordinators should explore a team member’s background and motivation before adding them to the roster. The Regulations also require training on issues of bias and conflict of interest.
- Late-introduced evidence is tricky but can often be headed off by thorough investigation work. Decision-makers are taking risks when they exclude evidence simply because it is introduced late, especially if it is key evidence related to exoneration or inculpation. A better practice might be to delay the hearing to re-open the investigation to consider the evidence, rather than to deprive someone of their key evidence proving an allegation or defense.
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[1] Doe v. Texas Christian University, No. 4:22-cv-00297-O (N.D. Texas, 2022), at 2.
[2] Id. at 3.
[3] Id.
[4] Id.
[5] Id.
[6] Id. at 4.
[7] Id. at 8.
[8] Id. at 10.