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Norris v. The University of Colorado

United States District Court, D. Colorado

February 21, 2019

THE UNIVERSITY OF COLORADO, BOULDER (through its Board, the Regents of the University of Colorado, a body corporate) and PHILIP P. DISTEFANO, Chancellor for the University of Colorado Boulder, in his official capacity, Defendants.



         Plaintiff 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.

         After consideration of the parties' arguments, I DENY the Motion in part and GRANT the Motion in part for the reasons set forth below.

         I. Law

         To 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.” Id.

         A court 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. Id.

         Conclusory 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.

         II. Background

         A. The Interactions between Plaintiff and Jane Roe

         As 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.

         The 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 ¶ 53.

         The 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.

         B. The Criminal and University Investigations

         The 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 ¶ 69.

         On 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.

         The 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 ¶ 71.

         On 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 ¶¶ 73-75.

         On 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.

         On 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.

         On 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 advance. Id.

         On 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.

         On 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.

         On 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.

         On June 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.

         The 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 ¶ 101.

         Multiple 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.

         On June 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.

         On 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.

         On 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.

         In 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.

         C. Allegations of Gender Bias

         In his 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.

         1. Federal, local, and campus pressure to comply with Title IX

         In 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.

         Plaintiff's 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, 27, 28.

         In 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 ¶ 24.

         Plaintiff 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 ¶ 26.

         Then, 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.

         Two 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.

         In 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.

         In 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 ...

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