Fourth Circuit affirms dismissal of Title IX and due process disciplinary challenge, with other federal circuit court rulings in the works

April 29, 2019

Higher Education Alert

Author(s): Steven M. Richard

Fourth Circuit passes on a detailed analysis of an expelled student’s disciplinary challenge, but several evolving Title IX and due process issues remain before circuit courts for upcoming rulings.

We have reported on the nuances of various federal district court rulings nationally in the proliferation of lawsuits challenging sexual misconduct disciplinary proceedings, asserting combinations of Title IX, constitutional and state law statutory, contract and tort claims. As we have also reported, the trial court rulings are increasingly reaching federal circuit courts on appeal, where binding circuit precedents are established and differences among the circuits could set the stage for review by the United States Supreme Court. The United States Court of Appeals for the Fourth Circuit is the latest circuit court to analyze the sufficiency of a lawsuit challenging a university’s disciplinary process, albeit in a summary ruling, which may have been the result of a compromise result among the panel or a preference to save a more detailed legal articulation for another day. John Doe v. Wallace Loh, et al., No. 18-1497 (4th Cir. Apr. 24, 2019).


John Doe, a former student at the University of Maryland, College Park (“UMCP”) sued to challenge UMCP’s decision to expel him for sexual misconduct. Doe asserted claims under 42 U.S.C. § 1983 for violations of his Fourteenth Amendment rights to due process and equal protection, and claims alleging Title IX gender discrimination. He also brought state constitutional and common law claims against UMCP, its Board of Regents and several administrators.

John Doe was not a particularly sympathetic plaintiff, as he acknowledged that he and his male friends were together in an on-campus apartment with a female student, who had fallen asleep in a bed next to one of John Doe’s friends. John Doe traded places in the bed with his friend and had sex with the female student, and the two students disputed whether their interaction was consensual. While law enforcement elected not to proceed with charges, the university conducted an investigation and a disciplinary process regarding the incident. John Doe alleged that he was denied access to exculpatory evidence, was not give a physical copy of the investigative report and deprived of a right to cross-examination because the female student failed to appear at the disciplinary hearing.

Maryland Federal District Court Judge Paula Xinis applied a highly critical analysis of the sufficiency of John Doe’s pled allegations. Regarding the constitutional challenge, Judge Xinis noted that even though disciplinary-based expulsions require greater procedural safeguards than academic dismissals, “trial-like” procedures are not required to pass constitutional muster. She concluded that the investigation was not biased as John Doe was informed of the report’s findings regarding the witnesses and evidence. Judge Xinis also concluded that “[i]t is well settled that the accused is not entitled to ‘trial-like’ rights of confrontation or cross-examination at disciplinary proceedings.” Judge Xinis rejected plaintiff’s allegations about the campus climate and alleged university predispositions in favor of female complainants, finding them “deeply troubling” because of John Doe’s “utter lack of a good faith basis to make such assertions . . . .” The critical tone of Judge Xinis’ ruling seems to be an outlier, compared to the many other recent rulings nationally testing the sufficiency of complaints challenging disciplinary process where courts have split in their rulings as to what level of pleading allows a case to proceed to discovery.

The Fourth Circuit’s summary ruling

Although the parties briefed and presented oral arguments detailing their respective arguments, the Fourth Circuit affirmed the lower court’s dismissal in a short, per curium (for the court), non-precedential opinion. The appellate court’s opinion just summarizes the key points of Judge Xinis’ rulings and confirms the panel’s agreement with them.

Regarding John Doe’s due process claim, the Fourth Circuit affirmed the plaintiff “received adequate notice, a meaningful investigative process[] and [a] sufficient opportunity to be heard by an independent decision-making body in connection with his expulsion.” Similarly, the appellate court agreed with the dismissal of the Title IX claim because John Doe’s allegations of gender discrimination were not pled with sufficient factual support. For example, the plaintiff acknowledged that he had no factual support for his pleading’s sweeping contention that all claims of sexual assault are lodged by female victims against male students.

For both the due process and Title IX claims, the Fourth Circuit concluded that the plaintiff’s allegations relied upon conclusory statements that did not meet the threshold to be worthy of development in discovery. Both the Fourth Circuit and the lower court applied a stringent review to the adequacy of the plaintiff’s allegations in this case, where other courts have been more flexible and frankly lenient in allowing pleadings to survive and permitting cases to proceed to discovery, particularly because the college or university typically possesses most of the discoverable information that may either be unavailable or unknown to the plaintiff upon filing the lawsuit. Given the summary nature of this appellate ruling and its limitation that it is non-precedential, it is difficult to ascertain precisely how and why the Fourth Circuit reached its generally stated conclusions.


Although the Fourth Circuit did not articulate a detailed legal analysis in this instance, there will certainly be other cases that will reach it and other circuits that will require binding precedential rulings. As of the issuance of this alert, there are pending appeals in disciplinary challenges, which have been argued and are awaiting decisions before the First, Third, Seventh (two appeals) and Ninth Circuits.

As the circuit court rulings evolve, some conflicts have arisen regarding what a plaintiff must plead and present in support of a disciplinary challenge. The Second and Sixth Circuits have differed regarding the proper analysis to test the plausibility of a pleading at the motion to dismiss stage, with the Second Circuit applying a more lenient standard than the Sixth Circuit. The Second Circuit has concluded that the sufficiency of a Title IX pleading challenging a disciplinary process must plead only a minimally plausible inference of discriminatory intent, while the Sixth Circuit expressly rejected this lesser standard concluding that a complaint must offer more than a minimal inference and be plausible on its face. Also, on another important and evolving issue, it remains to be seen to what extent other circuits will accept or reject the Sixth Circuit’s recent conclusion that constitutional safeguards require public institutions to afford a respondent with a right to cross-examination of the complainant, which the Fourth Circuit avoided addressing in any detail in its recent ruling. We will continue to monitor the developing federal appellate rulings and report on their impacts and any splits in their reasoning.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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