Gash v. Rosalind Franklin Univ.

• Docket Number: 1:23-cv-02054
• Decision Date: 11 September 2023
• Parties: NICHOLAS GASH, Plaintiff, v. ROSALIND FRANKLIN UNIVERSITY, et al., Defendant.
• Court: U.S. District Court — Northern District of Illinois

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NICHOLAS GASH, Plaintiff, v. ROSALIND FRANKLIN UNIVERSITY, et al., Defendant.

No. 1:23-cv-02054

United States District Court, N.D. Illinois, Eastern Division

September 11, 2023

MEMORANDUM OPINION AND ORDER

Elaine E. Bucklo United States District Judge

Plaintiff Nicholas Gash was expelled from Rosalind Franklin University after the University found him responsible for violating its Title IX Policy prohibiting sex-based misconduct. He asserts that the University's investigation and disciplinary proceedings were infected with unlawful anti-male bias. In this lawsuit, he claims that the University and its Board of Trustees violated Title IX and Illinois' Preventing Sexual Violence in Higher Education Act, 110 ILCS 205/9.21. Gash also claims that the University, the Board of Trustees and three individuals involved in the University's investigation and disciplinary proceedings are liable to him for breach of contract and negligence.

Two motions to dismiss are pending, one by the individual defendants and another by the University.^[1] Both motions proceed under Fed.R.Civ.P. 12(b)(6) and argue that the Amended Complaint fails to state any claim entitling Gash to relief. For the reasons that follow, the motions are granted.

I.

In a recent decision denying Mr. Gash's request to proceed under a pseudonym, I summarized the facts underlying his claims. See Doe v. Rosalind Franklin Univ., No 1:23-CV-02054, 2023 WL 5338720, at *1-2 (N.D. Ill. Aug. 4 2023). Gash realleges those facts in his Amended Complaint, which recounts defendants' allegedly unlawful investigation of a complaint made against him by a fellow student (“Jane Roe”) and defendants' putative discrimination and misconduct in connection with the disciplinary proceedings that followed. I reproduce below my summary of the background facts and will expand upon them as necessary in the course of my analysis. It bears recalling that my factual recitation “is one-sided because the posture of the case requires it to be.” Doe v. Purdue Univ., 928 F.3d 652, 656 (7th Cir. 2019).

According to the complaint, in November of 2021, [Gash] played a “drinking game” at an off-campus party at Jane's house, where he consumed several alcoholic drinks. [Gash] then went to a bar with Jane and others, where he consumed more alcohol and became “very intoxicated.” He then consumed a marijuana “edible” and blacked out shortly thereafter. [Gash] claims to remember nothing further from that night until he awakened the next morning, fully clothed, on Jane's couch.

Approximately a week later, Jane asked to meet with [Gash], and at their meeting she described a sexual encounter between the two of them on the night of [Gash]'s intoxication. Jane told [Gash] that she had not consented to having sex with him. Having no memory of the encounter due to his intoxication, [Gash] was “shocked” to learn that Jane claimed he had sexually assaulted her.

In March of 2022, Jane filed a formal complaint against [Gash] pursuant to Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. [Gash] received a Notice of Allegations from the University's Vice President for Diversity, Equity, and Inclusion, which did not include any details of the allegations against him or identify the specific policies he allegedly violated. A second Notice of Allegations informed [Gash] that Jane claimed he had “engaged in unwanted verbal and physical conduct and touching, aggressive pushing, holding down, moving around, and unconsensual (sic) sex with her more than once,” and that such behavior “could constitute sexual assault, sexual violence, and/or sexual harassment” under the University's Title IX Policy.

[Gash]'s complaint goes on to allege that following interviews with Jane, [Gash], and six witnesses, the University issued an Investigative Report on May 12, 2021. Four days later, [Gash] initiated the process to withdraw from the University. After [Gash] was informed that his withdrawal was approved, he emailed defendant Barbato stating that he “did not plan on participating in the Title IX Hearing” because as a former student, the University's policies no longer applied to him. [Gash] thus requested that the proceedings be dropped. But on May 31, [Gash] learned that his withdrawal had not been completed, and that the Title IX hearing would go forward. A Final Investigative Report was issued, and a virtual hearing was held in which [Gash] participated. Following these proceedings, [Gash] was found responsible for violating the University's Title IX policy and expelled from the University. [Gash] appealed the decision but was unsuccessful....

[Gash] complains that the University's investigation was shoddy and biased; that the University's decision to proceed after his attempt to withdraw was arbitrary and reflects its “agenda” of improperly exercising Title IX jurisdiction for the purpose of condemning him; and that the proceedings as a whole were conducted in a manner that discriminated against him based on his sex.

Id. at *1-*2.

II.

To survive defendants' motions to dismiss, Gash must allege facts that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This means that he “must plead particularized factual content, not conclusory allegations,” from which I may infer that defendants are liable for the alleged misconduct. Doe v. Columbia Coll. Chicago, 933 F.3d 849, 854 (7th Cir. 2019). My task at this stage “is not to determine what allegations are supported by the evidence but to determine whether [Gash] is entitled to relief if everything that he says is true.” Doe v. Purdue Univ., 928 F.3d 652, 656 (7th Cir. 2019). Accordingly, I assume the truth of his factual allegations, but I disregard any legal conclusions and “threadbare recitals” supported only by “conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678-78 (2009).

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 educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). A Title IX discrimination claim such as the one Gash asserts requires allegations suggesting that: “(1) the educational institution received federal funding, (2) plaintiff was excluded from participation in or denied the benefits of an educational program, and (3) the educational institution in question discriminated against plaintiff based on gender.” Columbia Coll. Chicago, 933 F.3d at 854. Only the third element is at issue here.

Like other plaintiffs around the country who have pursued Title IX claims arising out of disciplinary proceedings against them based on allegations of sexual misconduct, Gash argues that external pressure from the federal government-embodied in policy documents such as the Department of Education's 2011 “Dear Colleague Letter”^[2] and its 2014 “Questions and Answers on Title IX and Sexual Violence” (the “2014 Q&A”)^[3]-caused universities to take an overzealous approach to investigating and punishing sexual misconduct among students and to implement policies that discriminated against men. See, e.g., Doe v. Samford Univ., 29 F.4th 675, 691 (11th Cir. 2022); Doe v. Univ. of Denver, 952 F.3d 1182, 1192 (10th Cir. 2020); Schwake v. Arizona Bd. of Regents, 967 F.3d 940 (9th Cir. 2020); Doe v. Univ. of Scis., 961 F.3d 203, 205 (3d Cir. 2020); Doe v. Columbia Coll. Chicago, 933 F.3d 849 (7th Cir. 2019); Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018); Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016)); Doe v. Univ. of Chicago, No. 16 C 08298, 2017 WL 4163960 (N.D. Ill. Sept. 20, 2017). Indeed, the Seventh Circuit has explained that the 2011 Dear Colleague Letter “ushered in a more rigorous approach to sexual misconduct allegations.” Doe v. Purdue Univ., 928 F.3d 652, 668 (7th Cir. 2019). Among other things, it “encouraged schools to publish their discrimination policies, adopt and publish grievance procedures, ensure their employees are trained to report and effectively respond to incidents of harassment, and appoint a Title IX coordinator.” Columbia Coll. Chicago, 933 F.3d 849, 855 (7th Cir. 2019).

Gash alleges that while the Dear Colleague Letter directed universities “to take immediate action” to address sexual violence and harassment, it “de-emphasized fair process” for those accused of sexual misconduct by failing to require a presumption of innocence; directing schools to minimize the burden on the complainant; limiting cross-examination; and requiring schools to apply a “preponderance of the evidence” standard in evaluating allegations of sexual misconduct, among other things. Am. Compl. at ¶ 24. Although Gash concedes that both the 2011 Dear Colleague Letter and the 2014 Q&A were rescinded long before the investigation and proceedings at issue here took place and were replaced by interim guidance emphasizing that “[a]ny rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms,” Am. Compl. at ¶ 32, he alleges that “pressure on the University to vindicate female students alleging violations of [the University's Title IX] Policy resulted in the University subjecting [him] to a biased and unfair process, which was tilted in favor of the female complaint and against him as a male respondent,” Id. at ¶ 205.

Many courts, including the Seventh Circuit, “have treated the Dear Colleague letter as relevant in evaluating the plausibility of a Title IX claim.” Purdue Univ., 928 F.3d at 668 (7th Cir. 2019); accord Schwake 967 F.3d at 948-49; Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018); Columbia Univ., 831 F.3d at...