Sheppard v. Visitors of Va. State Univ.

• Decision Date: 02 April 2021
• Docket Number: No. 19-2452,19-2452
• Citation: 993 F.3d 230
• Parties: Malcolm X. SHEPPARD, Plaintiff - Appellant, v. The VISITORS OF VIRGINIA STATE UNIVERSITY; Henry Debose, individually, Defendants - Appellees, and Letizia Gambrell-Boone, individually and in her official capacity; Julia A. Walker, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

993 F.3d 230

Malcolm X. SHEPPARD, Plaintiff - Appellant,

v.The VISITORS OF VIRGINIA STATE UNIVERSITY; Henry Debose, individually, Defendants - Appellees,andLetizia Gambrell-Boone, individually and in her official capacity; Julia A. Walker, Defendants.

No. 19-2452

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2021

Decided: April 2, 2021

ARGUED: Scott G. Crowley, CROWLEY & CROWLEY, Glen Allen, Virginia, for Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Mark R. Herring, Attorney General, Samuel T. Towell, Deputy Attorney General, Ronald N. Regnery, Senior Assistant Attorney General, Sandra S. Gregor, Assistant Attorney General, Toby J. Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitor General, Jessica Merry Samuels, Assistant Attorney General, Zachary R. Glubiak, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; Ramona L. Taylor, University Legal Counsel, VIRGINIA STATE UNIVERSITY, Petersburg, Virginia, for Appellees.

Before AGEE, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Agee and Judge Thacker joined.

QUATTLEBAUM, Circuit Judge:

Malcolm X. Sheppard appeals the district court's dismissal of both his Title IX claim against the Visitors of Virginia State University and his Fourteenth Amendment claims against Henry Debose, a university administrator. For the reasons that follow, we affirm.

I.

Sheppard's claims arise from an altercation with a former girlfriend in a Virginia State University ("VSU") dormitory.¹ From 2014 to 2016, Sheppard was enrolled as a student at VSU. On October 25, 2016, he discovered personal items were missing from his dorm room. Sheppard then learned from his roommate that Sheppard's former girlfriend,

Student A, who was also a student, and her female friend, Student B, had been in his room. Sheppard first sought help from two dorm resident assistants to retrieve his personal items. After they were unwilling or unable to help, Sheppard decided to retrieve the items himself. According to Sheppard's Amended Complaint:

Sheppard confronted Student A; he went to grab the dorm room keys from her and inadvertently pushed Student A while in the hallway outside of her dorm room. Student A filed an Incident Report with VSU's Department of Police and Public Safety ... stating that Sheppard "pushed her several times while in front of [her dorm] ... room and again in a nearby stairwell."

J.A. 31.

Student B submitted a written statement to VSU's Department of Police and Public Safety acknowledging her involvement in taking items from Sheppard's dorm room and corroborating Student A's account of Sheppard's "pushing and grabbing." J.A. 31. The Department referred all three students to VSU's Office of Judicial Affairs ("OJA"). Sheppard was referred for assault, and Students A and B were referred for larceny. The day after the incident, OJA issued Sheppard a "Pre-Hearing Notice" of the charges against him and required he remain off campus pending their resolution. At that time, Sheppard, with permission to continue his courses online for the time being, went home.

OJA held a hearing on October 31, 2016, six days after the incident, which Sheppard attended. At that hearing, OJA found Sheppard to have violated Sections 8.01 (physical abuse, threats, intimidation or harassment) and 8.02 (violence on university property) of the VSU Student Code of Conduct. OJA imposed sanctions, including "100 hours of community service, anger management sessions, relationship violence education, and probation," but did not suspend Sheppard or preclude him from completing his coursework. J.A. 32. Sheppard appealed to Debose, the Director of OJA, seeking modifications to certain sanction requirements. Sheppard alleges he received no response and OJA never heard his appeal.

Meanwhile, sometime around the date of the incident, Student A had obtained a protective order in the Chesterfield County General District Court. The Order prohibited Sheppard from entering VSU's campus or being within 100 feet of Student A. Sheppard claims he never received notice of a hearing or a copy of the Order. On November 9, 2016, with Sheppard still in the dark, the Chesterfield County General District Court extended the Order through January 2017.

Based on the Order, VSU emailed Sheppard's professors asking them to permit him to complete the remainder of the term online. One professor denied this request. On November 29, 2016, Debose wrote Sheppard, notifying him that his suspension from VSU would remain in effect and that he was deemed to be withdrawn from his courses. According to Sheppard, this was the first time he was told he was suspended.

As to the charges against Students A and B, on December 17, 2016, OJA contacted them regarding their alleged violations. Student B received "Pre-Hearing Notice" on January 11, 2017, with a hearing date set approximately one week later. Following initial postponement of the hearing at Student B's request, OJA found Student B not responsible for theft. OJA held Student A's hearing on April 7, 2017, finding her responsible for theft and imposing sanctions.

Sheppard filed a complaint with the Department of Education's Office of Civil Rights ("OCR") in January 2017, alleging that VSU treated him differently than Students A and B on the basis of sex due to the time delay in OJA proceedings against Students A and B in comparison to Sheppard.² According to Sheppard, OCR's preliminary investigation found that he had established a prima facie case of discrimination. Thereafter, VSU entered into a Resolution Agreement with OCR to ensure future compliance with Title IX rather than proceed with a full investigation.

After Sheppard sued VSU, the district court dismissed his first complaint without prejudice under Federal Rule of Civil Procedure 12(b)(6).³ Subsequently, Sheppard amended his complaint, re-alleging his Title IX claim against VSU and his due process claim under 42 U.S.C. § 1983 against Debose. Sheppard also added an equal protection claim under § 1983 against Debose. Again, the district court granted the defendants’ Motion to Dismiss. In its memorandum opinion, the district court found, first, that Sheppard's Title IX claim, pled under the selective enforcement framework established in Yusuf v. Vassar College , 35 F.3d 709 (2d Cir. 1994), failed to demonstrate he was treated less favorably than a similarly situated student on the basis of his gender. Second, as to Sheppard's due process claim, the district court held that Debose was entitled to qualified immunity.⁴ And lastly, Sheppard's equal protection claim, like his Title IX claim, failed to identify a similarly situated female student that was treated differently.

Sheppard timely appealed, and we have jurisdiction to hear his appeal under 28 U.S.C. § 1291.

II.

We review dismissals under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim de novo, viewing the facts in the light most favorable to the plaintiff. Giarratano v. Johnson , 521 F.3d 298, 302 (4th Cir. 2008). "A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the claims pled in a complaint." ACA Fin. Guar. Corp. v. City of Buena Vista, Va. , 917 F.3d 206, 211 (4th Cir. 2019). To survive, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief ...." Fed. R. Civ. P. 8(a)(2). While this standard does not require detailed factual allegations, it does require "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "While we must accept the factual allegations in the complaint as true, we need not accept a complaint's legal conclusions. Thus, simply reciting the cause of actions’ elements and supporting them by conclusory statements does not meet the required standard." ACA Fin. Guar. Corp. , 917 F.3d at 212 (citation omitted). With this standard in mind, we turn to Sheppard's Amended Complaint.

A.

We first consider Sheppard's Title IX and equal protection claims. Finding they fail for largely the same reasons, we affirm the district court's dismissal of both.

1.

Title IX prohibits federally-supported educational institutions from practicing discrimination on the basis of sex. 20 U.S.C. § 1681(a) ("No 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 ...."). And it is enforceable through an implied private right of action, Cannon v. Univ. of Chicago , 441 U.S. 677, 703, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Despite that, we have no precedential decisions regarding Title IX claims in the context we face here—higher-education disciplinary proceedings.⁵ Thus, our first task is to determine what a party asserting such a Title IX claim must plausibly allege.

Looking to how our sister circuits have addressed this issue, courts are split. The first approach, articulated by the Second Circuit, in Yusuf v. Vassar College , 35 F.3d 709, 715 (2d Cir. 1994), provides that "[p]laintiffs attacking a university disciplinary proceeding on grounds of gender bias can be expected to fall generally within two categories," erroneous outcome and selective enforcement. Yusuf then announced the requirements for establishing either claim.⁶ See id . The First and Fifth Circuits have followed Yusuf ’s approach. See Haidak v. Univ. of Mass.-Amherst , 933 F.3d 56, 73–74 (1st Cir. 2019) (holding to succeed on a selective enforcement theory, plaintiff must show that "the severity of the penalty and/or the decision to initiate...