United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
T. BABCOCK, JUDGE.
William Norris filed suit against the University of Colorado,
Boulder (the “University”) and its Chancellor
Phillip P. DiStefano (collectively, “Defendants”)
alleging that Defendants: (1) violated Title IX of the
Educations Amendments of 1972 (“Title IX”); (2)
denied Plaintiff's Fourteenth Amendment due process
rights under 42 U.S.C. § 1983; and (3) breached a
contract with Plaintiff. Compl., ECF No. 1. Before me is
Defendants' Motion to Dismiss. ECF No. 8.
consideration of the parties' arguments, I DENY the
Motion in part and GRANT the Motion in part for the reasons
set forth below.
avoid dismissal under Rule 12(b)(6), “a complaint must
contain enough allegations of fact, taken as true, ‘to
state a claim to relief that is plausible on its
face.'” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that enables the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). “The plausibility
standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
may not dismiss a complaint merely because it appears
unlikely or improbable that a plaintiff can prove the facts
alleged or ultimately prevail on the merits.
Twombly, 550 U.S. at 556. Instead, a court must ask
whether the facts alleged raise a reasonable expectation that
discovery will reveal evidence of the necessary elements.
statements and legal conclusions are not accepted as true;
mere “labels and conclusions” and “a
formulaic recitation of the elements of a cause of
action” will not suffice. Khalik, 671 F.3d at
1190-91 (quoting Twombly, 550 U.S. at 555). As such,
when examining a complaint under Rule 12(b)(6), I disregard
conclusory statements and look only to whether the remaining,
factual allegations plausibly suggest the defendant is
liable. Id. at 1191.
The Interactions between Plaintiff and Jane Roe
students at the University, Plaintiff became friends with a
woman, referred to in this case under the pseudonym Jane Roe.
ECF No. 1 at ¶¶ 1, 51. The two had a relationship
over a year-and-a-half where they would often kiss.
Id. at 53. During this time, two instances occurred
that lead Roe to file a report with the Boulder Police
Department. Id. at ¶¶ 52, 54, 57.
first was in the spring of 2014. Id. at ¶ 52.
Plaintiff and Roe were drinking and, when alone, Plaintiff
playfully pinned Roe's arms over her head and moved his
hand down Roe's body towards her genitals. Id.
Roe said “no” and Plaintiff stopped. Id.
The two continued their friendship. Id. at ¶
second incident was in July 2015. Id. at ¶ 54.
Plaintiff and Roe engaged in sexual intercourse, which
Plaintiff states he “stopped because he felt guilty
about cheating on his girlfriend at the time, who was also
[Roe's] close friend.” Id. The next day,
Roe stated that she did not remember the encounter, which
surprised Plaintiff. Id. The two did not speak until
January 2016 when Roe accused Plaintiff of rape regarding the
July 2015 encounter. Id. at ¶ 56. Days after,
Roe filed the report with the Boulder Police Department.
Id. at ¶ 57.
The Criminal and University Investigations
University's Office of Institutional Equity and
Compliance (“OIEC”) discovered Plaintiff's
allegations made to the Boulder Police Department.
Id. at ¶ 58. OIEC assigned Lauren Hasselbacher
and Tessa Walker (the “Investigators”) to
investigate Roe's allegations against Plaintiff.
Id. at ¶¶ 59, 60. The Investigators were
charged with determining whether Plaintiff, by touching
Roe's genitals without her consent in the incident in the
spring of 2014, violated the terms of 2013-14 Student Conduct
Code. Id. at ¶ 61, 68. That code instituted a
“preponderance of information” standard regarding
the evaluation of complaints that a student violated its
terms. Id. at ¶ 44. Additionally, the
Investigators were tasked with determining whether Plaintiff
violated OIEC's Sexual Misconduct Policy concerning the
alleged sexual assault in July 2015. Id. at ¶
January 27, 2016, the Investigators observed the Boulder
Police Department's interview with Roe. Id. at
¶ 65. The Investigators did not observe the Boulder
Police Department's January 28 interview with Plaintiff,
but viewed a recording of the interview on March 24.
Id. at ¶ 66, 84. The same day as
Plaintiff's interview, OIEC sent Plaintiff a notice of
investigation. Id. at ¶ 67. The notice of
investigation read that if Plaintiff did not respond as
directed, OIEC was authorized to make conclusions without his
participation. Id. at ¶ 70. The notice of
investigation gave Plaintiff two business days to find an
advisor and to call and schedule a meeting with the
Investigators. Id. Roe was notified that her
participation was optional and she could confer with the
Investigators at any time convenient to her. Id.
next day, Roe met with her and Plaintiff's mutual
friends-some of which were involved in the investigations-and
relayed her side of the story to them. Id. at ¶
February 3, with his mother as his advisor, Plaintiff met
with the Investigators. Id. at ¶ 72. From
February 8 to 15, the Investigators conducted three witness
interviews and reviewed those witnesses' statements with
the Boulder Police Department. Id. at ¶¶
February 22, Plaintiff requested access to his OIEC
investigative file which was denied. Id. at ¶
76. The next day, OIEC informed Plaintiff that it would
notify him when fact-gathering was complete and that he could
review the summary of his interview in person at the OIEC
office. Id. at ¶ 77.
March 1, the Investigators again met with Roe and on March
21, she was again interviewed by the Boulder Police
Department. Id. at ¶ 79, 81. Also on March 21,
the Investigators notified Plaintiff that he could review his
OIEC investigative file for a two-hour period on March 28.
Id. at ¶ 82. They added that they wanted to ask
Plaintiff follow-up questions after his review of the file
and that they were drafting a written evidence summary to be
issued the following week. Id.
March 22, Plaintiff disputed the fairness of the process
because the Investigators “planned to issue the written
evidence summary prior to his review of the investigative
file and response to any follow up questions.”
Id. at ¶ 83. Plaintiff asked for the
Investigators' follow-up questions to be provided in
March 28, Plaintiff's counsel asked to review
Plaintiff's file the first week in April, but OIEC
requested additional time because then-Vice President Joe
Biden was visiting the University from April 5 to 8.
Id. at ¶ 85. As explained infra,
Biden's visit was related to an initiative regarding the
prevention of sexual violence on college campuses.
Id. at ¶¶ 36-37.
April 1, the Investigators issued a written evidence summary.
Id. at ¶ 86. This was before Plaintiff reviewed
the investigation file or answered follow-up questions. He
was informed he had seven days to review and respond to the
summary. Id. The Investigators emailed the summary
to Roe, who was informed to not share it with anyone besides
her advisor, “as sharing it with any witnesses or
participants in the investigation could be reviewed as
retaliatory.” Id. at ¶ 87. Roe shared the
summary with the Boulder Police Department and no action was
taken by OIEC. Id. at ¶ 88.
April 13, Plaintiff and his attorney reviewed his file for
two hours with an OIEC administrator present. Id. at
¶ 90. Plaintiff was not allowed to make copies of any
documents in the file. Id. On April 18, the Boulder
Police Department issued a second report concerning the
investigation. Id. at ¶ 91. On May 2, the
Investigators issued an amended written evidence summary.
Id. at ¶ 93. Three days later, Plaintiff's
counsel objected to the OIEC investigation. Id. at
¶ 94. The next day, Plaintiff and his counsel reviewed
his case file under the same circumstances as the prior
review. Id. at ¶ 95.
13, the Investigators emailed a notice of finding to
Plaintiff, notifying him that he was found responsible for
non-consensual sexual contact for the allegation in spring
2014. Id. at ¶ 119. Plaintiff was found not
responsible for the alleged sexual assault in 2015.
Id. at ¶ 69.
Investigators informed Plaintiff that the next day, the
Standing Review Committee would review his final
investigative report. Id. at ¶ 96. The Standing
Review Committee reviewed the evidence file and a 55-page
confidential final report, which was issued the same day.
Id. at ¶ 97. In the confidential final report,
the Investigators found Roe's statements consistent and
Plaintiff's statements inconsistent. Id. at
times during this process, notifications sent to Plaintiff
incorrectly stated that the applicable student conduct code
was the 2014-15 version, instead of the code from the correct
period of time, which was the 2013-14 version. Id.
at ¶¶ 99, 119, 121.
30, the University's Title IX Coordinator and OIEC
Executive Director, Valerie Simons, solely determined
Plaintiff's sanction. Id. at ¶¶
120-22. Plaintiff was: (1) suspended for 18 months; (2)
banned from campus; (3) required to undergo “an
evaluation and treatment from a licensed sex offender
provider”; (4) required to provide proof of any
court-ordered or other sanctions; (5) required to have any
application for readmission be personally approved by Simons;
and (6) to have no contact with Roe. Id. at ¶
126. The notice of sanction did not notify Plaintiff of any
right to an appeal. Id. at ¶ 127. The 2013-14
Student Conduct Code permitted an appeal, but the 2015-16
OIEC procedures did not permit an appeal. Id.
August 18, Plaintiff submitted a statement of appeal on the
grounds that: (1) “the established procedures were not
followed in a significant way and, as a result, the factual
findings and the sanction, were not correct” and (2)
“the severity of the sanction was not appropriate based
on the circumstances.” Id. at ¶ 128.
August 31, Simons notified Plaintiff that she would review
Plaintiff's appeal pursuant to the 2016-17 OIEC
procedures. Id. at ¶ 129. Simon stated that she
would singularly conduct a preliminary inquiry, although
under the 2013-14 Student Conduct Code, an appeal should have
been reviewed by a committee. Id. at ¶¶
129-130. Simons denied the appeal and upheld Plaintiff's
sanction. Id. at ¶ 133.
October 2017, after trial to a jury, Plaintiff was found not
guilty on all criminal charges. Id. at ¶ 57,
n.8. Plaintiff subsequently filed suit against the University
on August 30, 2018. Id. at 1.
Allegations of Gender Bias
Complaint and reiterated in his Response, Plaintiff levies a
litany of information alleging how the University was biased
against men. ECF Nos. 1 ¶¶ 19-140; 12 at 3-10.
Plaintiff generally alleges evidence of bias based on: (1)
federal, local, and campus pressure to comply with Title IX;
and (2) biases and conflicts of interest from relevant
employees of the University.
Federal, local, and campus pressure to comply with Title
April 2011, the Office for Civil Rights (“OCR”)
of the United States Department of Education issued a
guidance letter which became known as the “Dear
Colleague Letter” (“DCL”). ECF No. 1 at
¶ 19. The DCL directed colleges and universities to take
immediate action to eliminate sexual harassment, prevent its
recurrence, and address its effects. Id. Plaintiff
alleges that “the DCL minimized due process protections
for the accused by, among other things, eschewing any
presumption of innocence, mandating a preponderance of the
evidence standard, limiting cross-examination, and forbidding
certain forms of alternative dispute resolution.”
Id. at ¶ 21.
Complaint notes that in May 2013, a female student at the
University filed a complaint to OCR claiming that it violated
Title IX by not issuing a sufficient sanction against a male
found responsible for sexual assault. Id. at ¶
22. OCR opened an investigation against the University which
garnered press coverage. Id. at ¶¶ 22, 25,
2014, OCR released additional guidance providing procedures
for schools to follow when responding to complaints of sexual
violence and “advised schools to adopt a trauma
informed approach, advising, for example, that hearings
should be ‘conducted in a manner that does not inflict
additional trauma on the complainant.'”
Id. at ¶ 23. The same year, the White House
issued a report that advocated for trauma-informed training
and noted that a school risked losing federal funding if OCR
found the school to have violated Title IX. Id. at
alleges that the University responded to these government
guidances in various ways. First, in May 2014, DiStefano
noted that students of the University were circulating a
petition in support the White House guidance and announced
that the University would “review all the White House
recommendations and integrate those elements into what [it
was] currently doing, all with the goal to move [it] beyond
mere compliance, into leadership.” Id. at
in June 2014, the University hired Simons as its Title IX
Coordinator and eventually placed her as OIEC Executive
Director when OIEC was created in August. Id. at
¶¶ 30, 47. As part of OIEC's creation, the
University promulgated new processes and procedures under
OIEC to govern sexual misconduct cases, replacing the student
conduct codes, which remained in place for other student
conduct violations. Id. at ¶ 47.
months later, in October 2014, two administrators of the
University asserted during a presentation that its offices
handling student conduct and victim assistance needed to work
together, “noting ‘[a] collaborative relationship
between victim services and conduct investigators is
important for both the survivors and the campus.'”
Id. at ¶ 33. In January 2015, the University
held a town hall meeting related to a national anti-sexual
assault campaign called “It's On Us, ” where
it was discussed that the University was “working hard
to make the process as survivor-focused as possible.”
Id. at ¶ 34.
February 2016, a local newspaper published an opinion piece
criticizing the University for “administering lax
punishments in sexual misconduct cases and fostering a
‘rape culture…which…teaches young men
that drunken hookups are a space of free reign where anything
goes.'” Id. at ¶ 35.
April, Biden delivered a speech at the University as part of
the “It's On Us” campaign, and in preparation
of his visit, DiStefano and Simons appeared in the video
supporting the campaign. Id. at ¶ 36. In the
video, DiStefano announced that the “campaign is part
of our comprehensive education and prevention initiatives to
combat sexual violence and it ...