Football Player Fails in Bid to Prove Title IX Claim

Dec 3, 2021

By Courtney E Dunn, of Segal McCambridge

Title IX discrimination claims have, historically, proven to be uphill battles. Though the Title IX violations claimed by Plaintiff in Doe v. William Marsh Rice University[1]arose under an uncommon set of circumstances, the battle was still steep.


In 2017, Plaintiff John Doe was a freshman football player at Defendant William Marsh Rice University (the “University”) when he entered into a relationship with University student, Jane Roe (“Roe”).  The two students engaged in unprotected sex on multiple occasions, until Roe texted Doe with a concern. On December 14, 2017, Roe confronted Doe via text message concerning “bumps” that she believed to be herpes and was certain that she had contracted the disease from Doe. Doe had previously mentioned to her that he “had a run-in” with the sexually transmitted disease while he was in high school. Doe agreed that Roe’s symptoms “look[ed] similar” to herpes, and admitted via text that he knows herpes is incurable.  Presumably shocked by Doe’s nonchalance, Roe questioned Doe further asking, “So you know you’ve had herpes this entire time and you didn’t tell me until now [.]” to which Doe replied “Yes[.]”.  Doe’s final text in this chain stated, “In all honesty I didn’t think about that. I apologize. All I can say is that. And words won’t help on my side.”  Unfortunately, Doe’s apology did little to ease Roe’s woes.

That same day, Roe was formally diagnosed with herpes after a visit to the University’s Health Services.  The following day, Roe filed a report with the Rice University Police Department alleging that Doe had failed to inform her that he had herpes prior to their engaging in unprotected sex.[2] In response to Roe’s written report, the University’s Student Judicial Program (“SJP”) alerted Doe that it had scheduled a meeting to discuss a “disciplinary matter.” After Doe’s attorney advised the director of the SJP that Plaintiff would not be attending the meeting, the SJP sent Doe a charge letter notifying him of the disciplinary charges filed against him under the University’s Code of Student before placing Doe on an interim suspension as a result of his refusal to participate in the University’s disciplinary process.

Doe submitted a written response to Roe’s complaint, stating that he had disclosed his “run-in” with herpes to Roe, he had not had an outbreak since high school, and that Roe may have contracted herpes from other students. By way of a Decision Letter issued on April 17, 2018, the University advised Plaintiff that he violated the University’s Code, but not the Sexual Misconduct Policy. In response, Doe filed a Notice of Appeal alleging that the SJP was biased – and not in his favor. Finding no evidence of bias, the University Dean sustained the SJP’s findings, causing Doe to withdraw from the University two months later.

Plaintiff’s Title IX Claim

On September 11, 2019, Plaintiff looked to the Southern District of Texas and filed a Complaint against the University, alleging gender discrimination in violation of the Title IX of the Educational Amendments Act of 1972, 20 U.S.C. Section 1681, breach of contract claims, and declaratory judgment and injunctive relief for those claims. The University responded with a motion for summary judgment on Plaintiff’s Title IX and breach of contract claims based upon a lack of evidence.[3] Plaintiff based his claim on the theories of erroneous outcome, selective enforcement, and archaic assumption.

Theory of Erroneous Outcome

A successful erroneous outcome claims requires that (1) the disciplinary proceeding had an “erroneous outcome” and (2) that “gender bias was a motivating factor behind the erroneous finding.” See Klocke v. Univ. of Texas at Arlington, 938 F.3d 204, 201 (5th Cir. 2019).  Here Plaintiff argues, of course, that the outcome was erroneous and that, in coming to its conclusion, the University failed to consider Roe’s credibility and inconsistent statements. Specifically, Plaintiff relies on the fact that the University failed to conduct a hearing, refused Plaintiff’s attorney the opportunity of participating in the process, and failed to interview a student who allegedly would have stated that he contracted herpes from Roe prior to Roe’s sexual relationship with Plaintiff. He focuses upon the University’s failure to hold Roe responsible for contracting herpes by blaming Plaintiff for failing to educate himself about herpes. Plaintiff alleged that the University’s failure to question Roe about her sexual life evidenced gender bias.

The Court relied on Plaintiff’s admissions via text message to determine that Plaintiff engaged in “reckless action” in violation of the University Code and, therefore, the outcome was not erroneous. The Court went on to find that Plaintiff failed to prove gender motivated bias. Interestingly, the Court noted that Plaintiff’s allegations of a witness who may have contracted herpes from Roe were irrelevant, as was her sex life, as the misconduct at issue was filed against Plaintiff – not Roe.  Therefore, the University’s investigation need only focus on whether Plaintiff violated the University’s Code, regardless of any allegations regarding Roe’s previous exposure to sexually transmitted diseases.

Rather than basing his motion upon the University’s failure to abide by Code procedure, Plaintiff attempted to shift some blame onto Roe, which ultimately failed to convince the Court that the University’s decision was motivated by gender bias.

Selective Enforcement

To succeed on a claim for selective enforcement, Plaintiff must allege that either “disciplinary punishment or the decision to initiate enforcement proceedings was motivated by gender bias.” Klocke v. Univ. of Texas at Arlington, 938 F.3d 204, 213 (5th Cir. 2019).

Plaintiff’s selective enforcement claim accuses the University of enforcing procedure differently based on the students’ sexes. Again, Plaintiff relies on his allegation that Roe, too, failed to disclose that she had herpes before engaging in unprotected sex with another student, and ultimately infected that student. Despite the similarity in Roe’s and Doe’s actions, Plaintiff naturally wonders why Roe was not subject to the University’s discipline due to her failure to educate herself about the disease and subsequent failure to disclose that information to other students with whom she had sex.

Yet again, the Court notes that, despite any alleged similarities, there were no complaints filed against Roe. In the event that there were complaints filed against Roe, they are not the subject of the instant matter. Therefore, the Court found that Plaintiff failed to prove that he suffered a more serious punishment because he was a male.

Archaic Assumption Theory

To establish a claim under the archaic assumption theory, Plaintiff was burdened with proving that the University’s decision was based on “archaic assumptions” or “outdated attitudes” about the roles or behavior of men and women. See Pederson v. La. St. Univ., 213 F.3d 858, 880-882 (5th Cir. 2000).

Here, Plaintiff noted the University’s “outdated attitude” in deciding that an adult female student lacks the ability to understand for herself the risks of unprotected sex, and placing the burden of both educating oneself and one’s sexual partner on the male student.  In other words, why can’t a female sexual partner learn the risks affiliated with unprotected sex for herself? And, does not allowing her the opportunity do so suggest that she, as a woman, is incapable of doing so?

Without providing a full analysis in response to Plaintiff’s assertion of the archaic assumption theory, the Court held that “the record is devoid of any evidence that indicates that the University placed a different duty on male students to disclose the risks of unprotected sex than it does on female students.” It is undisputed that Plaintiff disclosed his “run-in” with herpes early in the relationship. Is it archaic for the University to assume that Roe was unable to educate herself on the risks associated with a herpes “run-in” without an extensive lesson from Plaintiff?

Based upon the text message correspondence between Doe and Roe, it is undisputable that Plaintiff was aware that herpes was a lifelong disease, and that he failed to adequately disclose that to Roe before engaging in unprotected sex with her. Additionally, whether Roe engaged in a separate sexual relationship and failed to disclose that same information is of no relevance to the case at bar. However, opinions may differ when it comes to Roe’s willingness to engage in a sexual relationship with Plaintiff, after being told that he had a “run-in” with herpes earlier in his life.  Though Plaintiff certainly downplayed his “run-in,” one may consider whether a female in Roe’s position is responsible for educating herself, rather than relying on a male partner to educate her on the risks associated with sexually transmitted diseases.

[1] No: 3:20-cv-2985, 2021 U.S. Dist. LEXIS 176619 (September 16, 2021)

[2] Roe additionally sought criminal charges against Doe, but the State’s ADA declined to pursue charges, stating that the State was unable to prove that Doe intended to cause Roe pain.

[3] The Court found that Plaintiff did not establish a breach of contract claim as a result of an expressed disclaimer contained within the contract.

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