Unknown Party v. Ariz. Bd. of Regents

• Decision Date: 26 December 2019
• Docket Number: No. CV-18-01623-PHX-DWL,CV-18-01623-PHX-DWL
• Parties: Unknown Party, Plaintiff, v. Arizona Board of Regents, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Unknown Party, Plaintiff,
v.
Arizona Board of Regents, et al., Defendants.

No. CV-18-01623-PHX-DWL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

December 26, 2019

ORDER

The Arizona Board of Regents ("ABOR"), along with Arizona State University's ("ASU") Senior Vice President of Educational Outreach and Student Services James Rund, Chair of the University Hearing Board ("UHB") Craig Allen, UHB members Kathleen Lamp and Andrew Waldron, Senior Associate Dean of Students and Dean's Review Committee member Kendra Hunter, and Office of Student Rights and Responsibilities Senior Coordinator Tara Davis (collectively, "Defendants"), move to dismiss plaintiff John Doe's first amended complaint ("FAC"). Doe filed this action after being expelled for violating certain provisions of the ASU Student Code of Conduct (the "Code"), including provisions related to sexual misconduct. For the following reasons, the motion will be granted in part and denied in part.

BACKGROUND

The facts alleged in the FAC (Doc. 37), which the Court presumes to be true for purposes of the motion to dismiss, are as follows.

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I. The Underlying Incident

On March 31, 2016, Doe and a fellow ASU student, Jane Roe, went on a dinner date and then engaged in consensual sexual activity in Roe's apartment. (Id. ¶ 109.)

On April 2, 2016, Doe and Roe attended the same off-campus party. (Id. ¶ 110.) During the party, Roe (who was under 21 years old at the time, and thus not legally allowed to drink alcohol) drank several shots of low-proof vodka. (Id. ¶¶ 7, 9, 17, 111-15.) Roe also danced provocatively with Doe and another male attendee, Witness 1, and kissed both men in the view of other partygoers. (Id. ¶¶ 7, 118.) Eventually, Roe led both men into a bedroom by the hand. (Id. ¶¶ 8, 121.) After the trio entered the bedroom, Roe kissed Witness 1, prompting Doe to ask Roe if he should leave. (Id. ¶¶ 10, 122.) Roe told Doe to stay and then verbally consented to sex. (Id.) Roe, Doe, and Witness 1 then undressed and engaged in a "threesome" for approximately 25 minutes, during which "Roe was an active participant in the sex, moving her hips appropriately, manipulating Doe's genitals to facilitate sex, and making moaning sounds indicative of pleasure." (Id. ¶¶ 10-11, 122-23.) After 25 minutes, Roe reported vaginal pain and asked the men to stop. (Id. ¶¶ 11, 125.) Both complied with this request. (Id.)

After the threesome ended, Roe continued manipulating Doe's genitals by hand. (Id. ¶ 126.) While this was occurring, Witness 1 surreptitiously began video-recording the encounter on his cellphone, which revealed "consensual" sexual conduct by Roe. (Id. ¶¶ 12, 126-27.) When Roe realized she was being filmed, she told Witness 1 to stop and became upset. (Id. ¶¶ 12, 126, 128.) After Witness 1 left, Doe asked Roe why she was being "dramatic." (Id. ¶¶ 13, 128.) This comment further angered Roe and precipitated an argument between Doe and Roe in which both called the other "an asshole." (Id.) Roe then left the room, found a friend, and left the party. (Id.)

II. The Criminal Investigation By The Tempe Police Department

On April 3, 2016 (the next day), Roe contacted the Tempe Police Department to report that that "she drank too much to consent to sex with Doe and Witness 1." (Id. ¶¶ 14, 131.) However, during the interview process, Roe "reported that she was coherent when

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entering the bedroom, understood what was occurring throughout the sexual encounter, and told the males to stop when the sex began to hurt." (Id. ¶ 133.) Roe also stated, falsely, that she had never engaged in sexual conduct with Doe before the party. (Id. ¶ 131.) As part of the ensuing investigation, a Tempe police detective obtained and viewed a copy of the cellphone video that Witness 1 had taken. (Id.¶ 142.) After the Tempe Police Department completed its "thorough[]" investigation of Roe's allegations, the Maricopa County Attorney's Office declined the case, meaning that Doe "was never charged with any crime." (Id. ¶¶ 14, 143.)

III. Title IX Developments At ASU

The FAC alleges that, between 2001 and 2011, universities such as ASU followed Title IX guidance materials promulgated by the United States Department of Education's Office of Civil Rights ("OCR"), which generally required schools to provide certain "procedural guarantees" to students accused of sexual harassment and other misconduct and to accord "due process to both parties involved." (Id. ¶¶ 80-83.) However, in 2011, OCR issued a "significant guidance document" commonly referred to as the "Dear Colleague" letter. (Id. ¶ 84.) This letter advanced a "gendered view" of sexual violence "that saw men as paradigmatic perpetrators of that violence and heterosexual women as its paradigmatic targets." (Id.) Among other things, the letter forbade universities from employing a clear-and-convincing-evidence standard during sexual misconduct proceedings and required them to employ a lesser preponderance-of-the-evidence standard. (Id. ¶ 87.) OCR also issued a later guidance document that "strongly implied that allowing an accused student to cross-examine his accuser could create a 'hostile environment' and put a college or university in violation of Title IX." (Id. ¶ 92.) OCR explicitly threatened universities with the withdrawal of federal funding if they failed to comply with these mandates. (Id. ¶¶ 89, 95.)

The head of OCR also advanced a "gendered view" of Title IX enforcement through interviews and press releases. (Id. ¶¶ 85-86.) During one interview, the head of OCR stated "she couldn't help but to think about the women who are suffering every day." (Id.

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¶ 85.) During another event, the head of OCR sought to "highlight men's role in preventing sexual violence." (Id. ¶ 86.)

In May 2014, as part of an effort to follow-up on the issuance of the "Dear Colleague" letter, OCR published a list of 55 universities that were under investigation for Title IX violations. (Id. ¶ 94.) ASU was one of the universities named on this list. (Id.) OCR officials visited ASU in 2012 and 2013 to "gather information" about ASU's processes for investigating sexual assault complaints. (Id. ¶ 98.) Following these visits, ASU was "subjected to extraordinary pressure," including two additional OCR complaints "that were filed as [Doe's] case was ongoing." (Id.)

IV. The Initial Investigation By ASU

In September 2016 (about six months after the incident), Roe reported the incident to ASU. (Id. ¶¶ 15, 144.) After Hunter received a report concerning the investigation, she sent an email to her colleagues "indicat[ing] that action had to be taken quickly because [Doe] was a male athlete—a collegiate wrestler." (Id. ¶ 254.)¹

On September 19, 2016, ASU initiated its investigation and interviewed Roe. (Id. ¶ 144.) During this meeting, Davis told Roe that "'as soon as I have the green light, I will charge' Doe with sexual misconduct," even though Davis had not yet interviewed Doe or collected any corroborating information. (Id. ¶ 150.) Davis also explained that she would not "go get" evidence and that it was instead up to Roe "to provide us with whatever documentation you think is relevant." (Id. at 148.)

On September 22, 2016 (three days later), ASU notified Doe that he was being investigated for violations of the Code related to alcohol, sexual misconduct, and surreptitious recording. (Id. ¶ 145.)

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On September 23, 2016 (the next day), Doe met with Davis. (Id. ¶ 148.) Davis informed Doe that she would handle ASU's investigation, acting as "a neutral, third party investigator," and that her job was to "collect information—anything I can get." (Id.) This was different from what Davis had told Roe three days earlier when describing her role. (Id. ¶ 149.) Davis further told Doe that the Dean's Review Committee ("the Committee") would determine whether Doe violated the Code "based on whatever (information) is available to them." (Id. ¶ 148.) Then, without prior notice, Davis asked Doe for a statement about the incident. (Id.) On advice of counsel, Doe ended the meeting. (Id.)

Davis continued with the investigation. (Id. ¶¶ 152-57.) Among other things, she asked Roe to produce the Tempe Police Department report of the incident, as well as a video of the incident recorded by a Witness 1. (Id. ¶ 154.) Although Roe provided the police report, it was missing "key, exculpatory sections, including [a] screenshot of the video . . . and the [Sexual Assault Nurse Examination ('SANE')] results." (Id.) In fact, during the SANE exam, Roe had disclaimed the use of force in the incident. (Id.) Doe was interviewed twice more and provided two written responses. (Id. ¶ 155.)

On December 20, 2016, Davis informed Doe that she had sent her investigative report to the Committee. (Id. ¶ 158.) At this point, Doe asked to see Roe's response to one of his previous written submissions. (Id.) Davis responded by claiming that Roe's response did not "provide[] any new evidence." (Id.) This claim was false—when Doe was allowed to review Roe's response on December 21, 2016, he learned that "it contained substantial new evidence." (Id.) "Within 24 hours," Doe submitted another letter that attempted to address Roe's new, previously-undisclosed allegations. (Id.)

V. The Committee's Expulsion Decision

Unbeknownst to Doe, the Committee had already convened and decided to expel him by the time he prepared this supplemental letter. (Id. ¶ 159.) By failing to consider Doe's letter before rendering a decision, the Committee violated ASU's written manual of Student Disciplinary Procedures. (Id. ¶¶ 39, 159.)

The Committee's expulsion letter explained that it had determined Doe committed

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two of the alleged Code violations (sexual misconduct and alcohol) but not the third alleged Code violation (surreptitious recording). (Id. ¶ 160.) With respect to the sexual misconduct charge, the Committee (1) concluded that Roe was incapacitated at the time of the sexual encounter and (2) further ...