John Doe v. Univ. of Dayton ( 2019 )


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  •                         NOT RECOMMENDED FOR PUBLICATION
    File Name: 19a0124n.06
    No. 18-3339
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT                                     FILED
    Mar 15, 2019
    JOHN DOE,                             )                                       DEBORAH S. HUNT, Clerk
    )
    Plaintiff-Appellant,             )
    )
    ON APPEAL FROM THE
    v.                                    )
    UNITED STATES DISTRICT
    )
    COURT     FOR      THE
    UNIVERSITY OF DAYTON; JANE ROE; )
    SOUTHERN DISTRICT OF
    NATIONAL        CENTER     FOR HIGHER )
    OHIO
    EDUCATION RISK MANAGEMENT; and )
    DANIEL C. SWINTON,                    )
    OPINION
    )
    Defendants-Appellees.            )
    BEFORE:         KEITH, STRANCH, and DONALD, Circuit Judges.
    JANE B. STRANCH, Circuit Judge. Plaintiff John Doe alleges that he was wrongfully
    suspended from the University of Dayton after Defendant Jane Roe accused him of sexual assault.
    He filed Title IX, breach of contract, and tort claims against the University, Roe, and the
    investigator the University hired. The district court dismissed all claims. For the reasons explained
    below, we AFFIRM.
    I. BACKGROUND
    On September 4, 2016, Doe and Roe had a sexual encounter. That night, Roe reported to
    University police that she had been sexually assaulted.
    The University’s Sexual Harassment Code of Conduct strictly prohibits all forms of sexual
    harassment, defined to include sexual assault and any other sexual conduct without “effective
    consent.” According to the Student Handbook, “[e]ffective consent is granted when a person
    No. 18-3339, Doe v. Univ. of Dayton
    freely, actively and knowingly agrees at the time to participate in a particular sexual act with a
    particular person.” Standard punishments for a violation “range from educational interventions to
    expulsion.”
    Just over a week after the incident, the University sent Doe a Notice of Investigation,
    attaching a copy of Roe’s complaint and explaining the process and Doe’s rights, as laid out in the
    Student Handbook. The notice stated that the matter had been referred to an external investigator,
    Defendant Daniel Swinton, an employee of Defendant National Center for Higher Education Risk
    Management (NCHERM). According to the Handbook, Swinton’s role was to compile an
    investigatory report and determine whether, when “all of the evidence is viewed in a light most
    favorable to [the complainant,] . . . there is probable cause to believe that the respondent might
    have violated” University policy.
    Swinton interviewed Doe, Roe, seven other Dayton students, and one of the University
    officers who responded to Roe’s initial call. He then drafted a report containing interview notes,
    written statements from Doe and Roe, police incident reports, text messages between Doe and Roe,
    pictures of the locations, and the results of a polygraph exam provided by Doe. Based on that
    evidence, Swinton first determined that there was no probable cause to believe Doe used force to
    obtain consent or that Roe was incapacitated and so unable to consent. He then performed a
    consent analysis and concluded that, “when viewing the facts in a light most favorable to the
    complainant, . . . probable cause exists to believe that 1) non-consensual sexual intercourse,
    2) non-consensual sexual contact, and 3) sexual harassment may have occurred in violation of
    University of Dayton policies.”
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    No. 18-3339, Doe v. Univ. of Dayton
    The matter was then referred for a hearing before the University Hearing Board. The Board
    reviewed Swinton’s report and heard testimony from Roe, Doe, and other witnesses. Based on
    that evidence, the Board concluded that Doe had violated the Code of Conduct by committing
    sexual harassment, reasoning as follows:
    The University Hearing Board voted that they believed it was more likely than not
    that [Roe’s] version of events in the bedroom occurred specific to non-consensual
    sexual intercourse. They referenced the agreement of both parties that the
    complainant indicated she did not think she wanted to do this and indicated that
    they believed by preponderance of the evidence that [Roe’s] version of when and
    how many times it was said more likely than not occurred.
    With regards to non-consensual sexual contact, the board determined that the
    kissing was consistently described by both parties and was inconsequential
    compared to the non-consensual sexual intercourse. The board made a finding of
    not responsible on this matter given they fell at 50/50 on the scale of preponderance.
    (R. 23-37, Hr’g Bd. Notice of Action, PageID 1516) Doe was suspended for a year and a half,
    until the end of the following school year.
    Doe appealed the decision to the University’s Judicial Review Committee. The Committee
    identified one error that had occurred at the hearing: neither Doe nor Roe had been given the
    opportunity to submit to the Board questions relating to live testimony given at the hearing. The
    Student Handbook provides that “[d]uring the course of the hearing, the board will allow both
    parties to submit questions they would like to have asked of the other or to key witnesses.” Parties
    are to be given 10 to 15 minutes to prepare “questions addressing information that occurred during
    the hearing,” and then the “[t]he board determines the questions they will ask by considering the
    relevance of the content to their purpose, their need for the information in order to make a decision
    and the appropriateness of the question.” To remedy the error, the Committee gave both Doe and
    Roe the opportunity to listen to a recording of the hearing, after which they had an hour to draft
    questions for the Board to pose to the witnesses. Doe did so, providing two and a half pages of
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    No. 18-3339, Doe v. Univ. of Dayton
    questions. The Board reconvened the following day. According to a letter the Associate Dean of
    Students sent to Doe, they “carefully reviewed all questions submitted and determined that none
    of those questions would provide additional information that could alter the determinations already
    made with regards to a code violation of sexual harassment.” That determination was in turn
    presented to the Judicial Review Committee, which “indicated that the original decision by the
    University Hearing Board in this case stands.” The previously imposed suspension became
    effective that day.
    Doe then filed the instant suit, bringing claims against the University, Roe, NCHERM, and
    Swinton for violation of Title IX, breach of contract, promissory estoppel, negligence, defamation,
    intentional infliction of emotional distress, and declaratory judgment. He alleges that the sexual
    encounter was consensual and that Roe fabricated the assault claim “to avoid discipline related to
    her work.” As an employee of Dayton’s athletic department, Roe was not permitted to engage in
    sexual conduct with Doe, a student athlete. Doe also argues that the campus environment was
    hostile to men and that the investigatory and Board proceedings were biased and procedurally
    deficient. He avers that as a result, he suffers from post-traumatic stress disorder, anxiety, and
    depression; was denied admission to another university; and lost an opportunity to be recruited by
    a coach at another school. The district court dismissed all claims. Doe appeals as to all claims
    and all Defendants.
    II. ANALYSIS
    We review a district court order granting a motion to dismiss de novo. See Hill v. Snyder,
    
    878 F.3d 193
    , 203 (6th Cir. 2017). In doing so, we construe the complaint in the light most
    favorable to the plaintiff, accept all factual allegations as true, and determine whether the complaint
    contains “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
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    No. 18-3339, Doe v. Univ. of Dayton
    U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by
    mere conclusory statements, do not suffice.” 
    Id. Our review
    of factual allegations encompasses
    exhibits attached to the complaint, which may be considered without converting the “motion to
    dismiss into one for summary judgment.” Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., 
    907 F.3d 948
    , 953 (6th Cir. 2018).
    As a preliminary matter, we note that Doe concedes that Dayton, a private university, is
    not a state actor. Dayton is therefore not subject to suit under 42 U.S.C. § 1983, see Brentwood
    Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 
    531 U.S. 288
    , 295, 305 (2001), and whether the
    procedures employed in Doe’s hearing would constitute due process of law is not before us. We
    ask only whether Defendants’ behavior violated Title IX, breached applicable contracts, or gave
    rise to tort liability.
    A.     Title IX Claims
    Title IX provides that, subject to certain exceptions not relevant here, “[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 education program or activity receiving Federal
    financial assistance.” 20 U.S.C. § 1681(a). “Title IX is enforceable through a judicially implied
    private right of action, through which monetary damages are available.” Doe v. Miami Univ., 
    882 F.3d 579
    , 589 (6th Cir. 2018) (quoting Klemencic v. Ohio State Univ., 
    263 F.3d 504
    , 510 (6th Cir.
    2001)).
    We have recognized at least four theories of Title IX liability in cases alleging gender bias
    in university disciplinary proceedings:         (1) erroneous outcome, (2) selective enforcement,
    (3) deliberate indifference, and (4) archaic assumptions. 
    Id. We have
    also recognized the viability
    of a fifth theory, hostile environment, in other contexts, though not in the context of a suit related
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    No. 18-3339, Doe v. Univ. of Dayton
    to disciplinary proceedings. 
    Id. (citing Doe
    v. Claiborne County, 
    103 F.3d 495
    , 515 (6th Cir.
    1996)). Doe pursues four of these five theories—all but archaic assumptions.
    1.      Erroneous Outcome
    To present a viable claim under the erroneous outcome theory, a plaintiff must allege “facts
    sufficient to (1) ‘cast some articulable doubt’ on the accuracy of the disciplinary proceeding’s
    outcome, and (2) demonstrate a ‘particularized causal connection between the flawed outcome and
    gender bias.’” Doe v. Baum, 
    903 F.3d 575
    , 585 (6th Cir. 2018) (ellipsis omitted) (quoting Miami
    
    Univ., 882 F.3d at 592
    ). Because Doe’s core argument is that he was subject to unfair procedures
    that were biased against men, this is the Title IX theory that most naturally fits his allegations.
    We assume for purposes of argument that Doe has satisfied the first requirement and
    proceed immediately to the second prong. To allege a particularized causal connection, we have
    generally required plaintiffs to point to some hint of gender bias in their own disciplinary
    proceedings. Thus, for example, it is not enough to allege that in all of one university’s sexual
    assault investigations during the relevant period, “the accused was male and was ultimately found
    responsible.” Doe v. Cummins, 662 F. App’x 437, 453 (6th Cir. 2016). This prong is satisfied,
    however, when that same claim is combined with other troubling allegations, including both an
    affidavit that “describes a pattern of the University pursuing investigations concerning male
    students, but not female students” and a showing that in the plaintiff’s own case, the university
    “initiated an investigation into him but not” his female accuser. Miami 
    Univ., 882 F.3d at 593
    . (In
    that case, there was an allegation that the accuser herself violated the University’s policies by
    kissing the plaintiff when he was “inebriated to the extent that he could not consent.” 
    Id. at 591.)
    Similarly, alleging that a university adopted certain procedures due to pressure from the federal
    government is not enough on its own, see Cummins, 662 F. App’x at 452–53, but suffices when
    combined with an allegation that the plaintiff’s hearing body disagreed with the findings of the
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    No. 18-3339, Doe v. Univ. of Dayton
    initial investigator based on “exclusively female testimony,” even though the reason given for
    discrediting the men (membership in the accused’s fraternity) applied equally to the women (all
    members of the accuser’s sorority), 
    Baum, 903 F.3d at 586
    .
    In this case, Doe contends that three of his allegations, when considered in their entirety,
    demonstrate a comparable causal connection to gender bias.1 First, in 2014, Dayton entered into
    a resolution agreement with the Department of Education’s Office of Civil Rights, agreeing to
    modify its policies for handling complaints. Doe alleges that his discipline was motivated in part
    by a desire to avoid further federal scrutiny and negative publicity. The helpfulness of this 2014
    agreement to Doe’s case is questionable. According to the news article Doe attached to his
    complaint describing the resolution agreement, “none of the Title IX complaints [spurring the
    resolution agreement] involved sexual assault.” The policy changes mandated by the resolution
    agreement—about the role of the Title IX coordinator, the use of informal resolution processes,
    the right to counsel, and the conduct of a hearing when the complainant and respondent cannot be
    in the same room—are not the same policies that Doe alleges were indicative of gender bias in his
    hearing. But even if we assume the agreement is both relevant and indicative of bias, Doe fails to
    draw any connection between that agreement and his hearing two years later. He does not allege,
    for example, that the University or the individuals involved in his hearing were facing substantial
    public pressure or outcry in the weeks leading up to his hearing—facts the Second Circuit found
    persuasive in Doe v. Columbia University, 
    831 F.3d 46
    , 57–58 (2d Cir. 2016). The 2014 agreement
    therefore does not provide the necessary “particularized” evidence of a causal connection between
    gender bias and the outcome of Doe’s hearing. See Cummins, 662 F. App’x at 452–53.
    1
    In Doe’s opening brief, he raised a fourth allegation, related to statistics cited by another Board member in her
    doctoral thesis. In his reply brief, he acknowledges that the individual mentioned did not serve on Doe’s Hearing
    Board and so withdraws the argument.
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    No. 18-3339, Doe v. Univ. of Dayton
    Next, Doe argues that one member of the Hearing Board revealed gender bias by
    supporting the film The Hunting Ground, which Doe alleges portrays campus sexual assault
    inaccurately. Just over a year before Doe’s hearing, the Board member posted on Facebook that
    the film was a “[m]ust see,” indicated it was unacceptable for a fraternity to be known as the
    “roofie frat,” and agreed with a response implying that men should masturbate instead of “hav[ing]
    sex with unconscious women.” A single comment made at a substantial temporal remove from
    Doe’s hearing is of limited value in discerning discrimination—especially when, as here, the
    discriminatory aspect of the statement is difficult or impossible to discern. It is not problematic
    for a Board member to express distaste for sex with unconscious partners or for using drugs to
    obtain consent—both clear violations of Dayton’s “effective consent” policy. And while Doe has
    alleged that the film is based on inaccurate statistics and discredited accounts, those flaws do not
    plausibly suggest gender bias in a supporter of the film who was not necessarily aware of the
    criticisms.
    Finally, Doe highlights his allegations that, “[u]pon information and belief, in virtually all
    cases of campus sexual misconduct by Dayton [sic], the accused student is male and the accusing
    student is female,” and “[u]pon information and belief, Dayton possesses additional documentation
    evidencing their refusal to discipline female students who were alleged to have sexually assaulted
    male students.” As previously explained, the fact that sexual assault proceedings have been
    brought only against male students is not in and of itself sufficient to infer gender bias. Cummins,
    662 F. App’x at 453–54. And, more fundamentally, these generalized, conclusory statements,
    devoid of underlying factual support, do not suffice to allege a particularized causal connection
    between gender bias and Doe’s suspension. See 
    Baum, 903 F.3d at 585
    .
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    No. 18-3339, Doe v. Univ. of Dayton
    In sum, Doe references events that are temporally removed from his hearing and raise little
    or no inference of discrimination; he then augments those allegations with speculation about
    evidence he might uncover later in the proceedings. Even considering all Doe’s allegations in
    combination, they do not show that gender bias had some causal connection to the outcome of his
    disciplinary hearing. The erroneous outcome theory fails.
    2.      Hostile Environment
    We next consider whether Doe has made out a Title IX claim under the hostile environment
    theory. Such a claim “is analogous to a Title VII hostile-environment claim.” Miami 
    Univ., 882 F.3d at 590
    . To succeed, Doe must allege “that his educational experience was ‘permeated with
    discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive so as to alter
    the conditions of [his]’ educational environment.” 
    Id. (brackets omitted)
    (quoting Harris v.
    Forklift Sys., Inc., 
    510 U.S. 17
    , 21 (1993)).
    Doe points to a series of film screenings and on-campus events that he argues amounted to
    a “campaign of intimidation and insult which altered the educational environment of males like
    Doe by portraying them as sexual deviants.” We are dubious that programming highlighting
    sexual violence, even when focused on sexual violence committed by men, could create a hostile
    environment absent unusual circumstances. After all, though Doe vigorously disputes how often
    sexual violence on college campuses occurs, he concedes that some women are sexually assaulted
    on college campuses. One instance of sexual assault is too many, and it is logical and appropriate
    for universities to host events confronting an acknowledged problem. Indeed, such actions appear
    to be mandated by federal regulation. See 34 C.F.R. § 668.46(j) (requiring each covered university
    to “include in its annual security report a statement of policy that addresses the institution’s
    programs to prevent dating violence, domestic violence, sexual assault, and stalking”).
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    No. 18-3339, Doe v. Univ. of Dayton
    The aspects of the events that Doe takes issue with do not rise to the level necessary for a
    hostile environment claim. Making available or distributing allegedly inaccurate information does
    not equate to intimidation or insult.     Using male pronouns when highlighting problematic
    statements such as “he said if I really loved him, I would have sex with him,” is not equivalent to
    accusing all male students of committing or condoning sexual assault. Nor does highlighting
    sexual assault of women by men negate the possibilities that women can commit sexual assault or
    that men can be sexually assaulted. Indeed, the first line of the description of sexual harassment
    in Dayton’s Handbook states that the offense “[c]an be committed by a man or woman against a
    person of the same or opposite sex.” Doe therefore does not plausibly allege that the events hosted
    at Dayton crossed the line into “intimidation, ridicule, and insult.” Miami 
    Univ., 882 F.3d at 590
    (quoting 
    Harris, 510 U.S. at 21
    ).
    Moreover, Doe fails to allege that he was even aware that these events took place while he
    was a student at Dayton, much less that they meaningfully changed the conditions of his
    educational environment. We hesitate to deem an environment hostile to a plaintiff when “there
    is no evidence that plaintiff was aware” of what occurred. Abeita v. TransAmerica Mailings, 
    159 F.3d 246
    , 249 n.4 (6th Cir. 1998). Though Doe was not required to allege that he personally
    attended the events or even that he knew about them at the time they occurred, see Jackson v.
    Quanex Corp., 
    191 F.3d 647
    , 661 (6th Cir. 1999), he had to connect those events to his personal
    educational environment. The conclusory allegation that these events “interfere[] with males’
    ability to participate in or benefit from various activities including learning on campus” is
    insufficient.
    Doe also appears to argue that his hearing and ultimate suspension interfered with his
    ability to participate in campus life. But we have already explained that “allegations of gender
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    No. 18-3339, Doe v. Univ. of Dayton
    bias in the University’s sexual-assault disciplinary process” do not constitute the sort of
    intimidation, ridicule, or insult that can sustain a hostile environment claim. Miami 
    Univ., 882 F.3d at 590
    . Doe’s criticisms of that process have already been analyzed in their proper place,
    under the erroneous outcome rubric.
    3.      Deliberate Indifference
    Doe next advances the deliberate indifference theory. Here, he must allege that the school
    “acts with deliberate indifference to known acts of harassment in its programs or activities” and
    that the harassment “is so severe, pervasive, and objectively offensive that it effectively bars the
    victim’s access to an educational opportunity or benefit.” Davis v. Monroe Cty. Bd. of Educ., 
    526 U.S. 629
    , 633 (1999). “[W]e have held that to plead a Title IX deliberate-indifference claim, ‘the
    misconduct alleged must be sexual harassment,’ not just a biased disciplinary process.” 
    Baum, 903 F.3d at 588
    (quoting Miami 
    Univ., 882 F.3d at 591
    ). Thus, to the extent this claim is premised
    on procedural flaws in the proceedings themselves, it fails.
    Doe argues that his deliberate indifference claim is also based on the programming about
    sexual violence that formed the basis for his hostile environment claim. He does not, however,
    allege that the University “had actual knowledge” about any sexual harassment that occurred at
    those events. Tumminello v. Father Ryan High Sch., Inc., 678 F. App’x 281, 284 (6th Cir. 2017).
    And, for the same reasons described above in the hostile environment context, permitting campus
    events discussing sexual assault—even with some inaccuracies—is not “severe, pervasive, and
    objectively offensive” harassment. 
    Davis, 526 U.S. at 633
    .
    4.      Selective Enforcement
    Doe’s final Title IX theory is selective enforcement.         “To prevail on a ‘selective
    enforcement’ claim, the plaintiff must show that a similarly-situated member of the opposite sex
    was treated more favorably than the plaintiff due to his or her gender.” Cummins, 662 F. App’x
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    No. 18-3339, Doe v. Univ. of Dayton
    at 452. Doe has not identified any woman accused of sexual assault at Dayton University who
    was not referred to disciplinary proceedings. Instead, he returns to his allegation that, “[u]pon
    information and belief, Dayton possesses additional documentation evidencing their refusal to
    discipline female students who were alleged to have sexually assaulted male students.” Doe
    provides no factual content to underpin this allegation. The bare allegation, unsupported by facts,
    does not suffice to state a claim. See 16630 Southfield L.P. v. Flagstar Bank, F.S.B., 
    727 F.3d 502
    ,
    506 (6th Cir. 2013) (“[T]he plaintiffs have not identified any similarly situated individuals whom
    [the defendant] treated better. They have merely alleged their ‘belief’ that such people exist. These
    ‘naked assertions devoid of further factual enhancement’ contribute nothing to the sufficiency of
    the complaint.” (quoting 
    Iqbal, 556 U.S. at 678
    )).
    In sum, Doe has not stated a claim for a violation of Title IX under any of these four
    theories. The district court properly dismissed Doe’s Title IX claims.
    B.      Contract Claims
    Doe next alleges that Dayton, Swinton, and NCHERM breached applicable contracts and
    the implied covenant of good faith and fair dealing. The parties do not dispute that these state law
    claims are analyzed under Ohio law.
    1.      Breach of Contract Against Dayton
    “A cause of action for breach of contract requires the claimant to establish the existence of
    a contract, the failure without legal excuse of the other party to perform when performance is due,
    and damages or loss resulting from the breach.” Lucarell v. Nationwide Mut. Ins. Co., 
    97 N.E.3d 458
    , 469 (Ohio 2018). The parties agree that the relationship between Doe and Dayton is
    contractual and that the Student Handbook lays out the contract terms. See Behrend v. State, 
    379 N.E.2d 617
    , 620 (Ohio Ct. App. 1977) (“[W]hen a student enrolls in a college or university, pays
    his or her tuition and fees, and attends such school, the resulting relationship may reasonably be
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    No. 18-3339, Doe v. Univ. of Dayton
    construed as being contractual in nature.”). We therefore ask whether Dayton failed to perform
    on the contract.
    Our review of Dayton’s actions is limited, recognizing that “contracts for private education
    have unique qualities and must be construed to allow the institution’s governing body to meet its
    educational and doctrinal responsibilities.” Valente v. Univ. of Dayton, 438 F. App’x 381, 384
    (6th Cir. 2011) (brackets omitted) (quoting Ray v. Wilmington Coll., 
    667 N.E.2d 39
    , 42 (Ohio Ct.
    App. 1995)). We “will not interfere in these matters in the absence of a clear abuse of discretion.”
    Schoppelrei v. Franklin Univ., 
    228 N.E.2d 334
    , 336 (Ohio Ct. App. 1967). “In confronting
    challenges to private school disciplinary proceedings, the appropriate question is thus ‘whether the
    proceedings fell within the range of reasonable expectations of one reading the relevant rules, an
    objective reasonableness standard.’” Faparusi v. Case W. Reserve Univ., 711 F. App’x 269, 277
    (6th Cir. 2017) (quoting Pierre v. Univ. of Dayton, 
    143 F. Supp. 3d 703
    , 713 (S.D. Ohio 2015)).
    Doe’s broad argument is that his proceedings were unfair and so the University breached
    general Handbook guarantees such as “ensur[ing] that respondents . . . are treated fairly in the
    University’s processes.” In light of the governing objective standard, we may not accept as
    sufficient Doe’s subjective claim of an unfair proceeding that reached the wrong conclusion. Nor
    may we derive an ideal of fairness by analogy to the procedural protections applicable in courts of
    law. See Doe v. Univ. of Cincinnati, 
    872 F.3d 393
    , 400 (6th Cir. 2017) (“[The University] is not
    required to ‘transform its classrooms into courtrooms’ in pursuit of a more reliable disciplinary
    outcome.” (quoting Jaksa v. Regents of Univ. of Mich., 
    597 F. Supp. 1245
    , 1250 (E.D. Mich.
    1984))). Rather, because our inquiry asks “whether the proceedings fell within the range of
    reasonable expectations of one reading the relevant rules,” Faparusi, 711 F. App’x at 277 (citation
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    No. 18-3339, Doe v. Univ. of Dayton
    omitted), we consider each instance of allegedly unfair conduct by the University and compare it
    to the governing Handbook provisions.
    Doe first raises two allegations centering on the Board’s failure to ask witnesses questions
    that he proposed. Before his hearing, Doe submitted a list of questions to be asked of each witness.
    He alleges that the Board asked none of them, thereby breaching the Handbook’s promise that
    “[q]uestions deemed relevant and appropriate by the [Board] will be addressed to the individual
    [witness] by the [Board] chair.” He similarly faults the Board’s decision after the Judiciary Review
    Committee gave him an opportunity to review the taped proceedings and propose another set of
    questions. At that point, the Board declined to reconvene the witnesses and pose the proposed
    questions because “none of those questions would provide additional information that could alter
    the determinations already made with regards to a code violation of sexual harassment.” Doe
    argues this was also error because the Board failed to apply the Handbook’s “relevant and
    appropriate” standard.
    The Handbook is divided into sections that lay out expectations for particular topics and
    types of proceedings. The section describing Board procedures in sexual harassment cases states
    that “the University Hearing Board process and procedure differs for cases that do not involve
    sexual harassment and harassment” and provides a cross reference to another section that lays out
    “the process for other Codes of Conduct.” The “relevant and appropriate” provision Doe cites is
    found in the cross-referenced section governing other conduct violations, not in the harassment-
    specific procedures. The harassment procedures do not mention the “relevant and appropriate”
    standard. Instead, in harassment cases, “[t]he board determines the questions they will ask by
    considering the relevance of the content to their purpose, their need for the information in order to
    make a decision and the appropriateness of the question.” The Board’s “approval process is closed
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    No. 18-3339, Doe v. Univ. of Dayton
    to both parties,” and the Board “is not required to provide rationale for the acceptance or denial of
    any question.” The Handbook therefore did not oblige the Board to ask the questions Doe
    proposed before the hearing or to explain to Doe why his questions were not asked, and the Board
    properly considered its “need for the information in order to make a decision” when it rejected
    proposed questions that would not “alter the determinations already made.”
    Next Doe states that Dayton imposed “arbitrary and capricious time limitations on Doe that
    were not contained in Dayton’s policies.” He appears to reference the requirement imposed after
    the Judiciary Review Committee’s remand that he view the taped proceeding between January 12
    and 17 and submit questions within one hour of the viewing. The one-hour limit was more
    generous than the Handbook, which allows parties only 10 to 15 minutes to generate questions
    from live testimony. As to the selection of dates, the Handbook is silent about how to navigate the
    unusual circumstance mandated by the Committee’s remand. The University may therefore have
    been obliged to pick a date in good faith. See Shimrak v. Goodsir, 2014-Ohio-3716, ¶ 25 (Ohio
    Ct. App. Aug. 28, 2014) (“[I]f a contract is silent on a point, ‘[t]he parties to a contract are required
    to use good faith to fill the gap.’” (quoting Burlington Res. Oil & Gas Co. v. Cox, 
    729 N.E.2d 398
    ,
    401 (Ohio Ct. App. 1999))). But see 
    Lucarell, 97 N.E.3d at 469
    (“[T]here is no violation of the
    implied duty [of good faith] unless there is a breach of a specific obligation imposed by the
    contract . . . .”). The University gave Doe three business days to review the hearing and indicated
    that it would “allow for an extension if there was good reason.” Doe does not allege that he
    provided such a reason and was ignored, so even assuming the University was obliged to act in
    good faith, we see no basis to conclude that it failed to do so.
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    Doe also argues that the University breached Handbook provisions by not allowing him to
    submit exhibits, call a witness, or access a medical record that Roe referenced during her live
    testimony.   These arguments turn in part on the Board’s process for receiving evidence.
    Participants are not “permitted to submit information to the Student Conduct System outside of
    the investigation.” Doe concedes that he suggested witnesses and provided evidence to Swinton
    during the investigation. Pursuant to the Handbook, then, he could call a new witness or introduce
    new evidence only under “extraordinary circumstances,” and “[t]he University reserves the right
    to determine what is considered an extraordinary circumstance.” Doe does not allege that the
    University deemed his circumstances extraordinary, nor (assuming such a challenge would be
    permissible) does he explain why the University should have made such a determination. Barring
    him from submitting further exhibits or calling new witnesses thus comported with the Handbook.
    To the extent Doe wished to call a witness who had already testified to the investigator, the Board
    was bound by the Handbook provision that “witnesses are not compelled to participate in the
    University Hearing Board process.”
    The argument about Roe’s medical record fails for a similar reason. Because that record
    was not included in the investigatory report, it could not be provided to the Board—and so to
    Doe—at the hearing. Doe points to no Handbook provisions requiring production of documents
    that are referenced during the hearing but were not included in the report, and the University was
    not required to have such a process in place. See Flaim v. Med. Coll. of Ohio, 
    418 F.3d 629
    , 635
    (6th Cir. 2005) (noting “unanimous” agreement that “neither rules of evidence nor rules of civil or
    criminal procedure need be applied” at disciplinary hearings).
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    No. 18-3339, Doe v. Univ. of Dayton
    In sum, having compared the language of the Handbook to the procedures described in the
    complaint, we see no “clear abuse of discretion,” 
    Schoppelrei, 228 N.E.2d at 336
    , in the
    University’s interpretation and implementation of its hearing procedures.
    2.     Breach of Contract Against Swinton and NCHERM
    We next consider Doe’s breach of contract claims against Swinton and NCHERM arising
    from the investigation. Doe alleges that, because Dayton hired NCHERM and its employee
    Swinton to perform the Title IX investigation, there must have been a contract between them, the
    contract must have incorporated the terms of the Handbook and applicable federal law, and Doe
    must have been an intended third-party beneficiary of the contract.
    We hesitate to accept the proposition that a plaintiff may plead upon information and belief
    not only that a contract exists but also what its terms would be and that it would confer upon him
    the rights of a third-party beneficiary. But even if such pleading is permissible, Doe must allege
    some action by NCHERM or Swinton that breached the alleged contract terms. The one action
    Doe identified in his opening brief is Swinton’s treatment of Doe’s proposed polygraph evidence.
    The portion of Swinton’s report discussing the polygraph states:
    Before briefly reviewing the results of the polygraph examination, it may be helpful
    to provide some context as to its reliability and efficacy. Polygraph examinations
    typically consist[] of a series of control questions (in this case, seven) to establish
    a baseline, with a smaller number of key questions (in this case, three) pertinent to
    the issue posed for comparison. The American Psychological Association
    encourages people to view them skeptically. Additionally, most courts do not allow
    their use in proceedings given their lack of reliability and efficacy. Polygraph
    examinations often are only able to test whether a person believes they are telling
    the truth, not whether they are actually telling the truth. As such, using polygraphs
    for probative purposes is problematic.
    [Doe] privately arranged for a polygraph examination and presented the results to
    the investigators. The examiner asked three issue-specific questions, which the
    examiner opines were answered by [Doe] in a manner “indicative of truthfulness”:
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    No. 18-3339, Doe v. Univ. of Dayton
    Q: Did [Roe] take off her own pants for sex[?]
    A: Yes
    Q: Did you [in] any way force [Roe] to have sex of any kind?
    A: No
    Q: Did [Roe] in any way object to engaging in sex act[s] with you?
    A: No
    [Doe] seems to have selected a well-respected professional to perform the
    polygraph exam and it seems to have been performed in accordance with
    professional standards. The exam is a piece of evidence that could, at the discretion
    of the decision-maker, serve to assist with [Doe]’s credibility, but the exam should
    not be viewed as proof of [Doe]’s truthfulness or of the veracity of [Doe]’s
    statements.
    (R. 23-34, Investigation Report, PageID 1442–43) Swinton’s duty under the Handbook was to
    “compile all of the evidence.” He presented Doe’s polygraph evidence to the Board in a manner
    that described both its potential usefulness and its limitations—and, in so doing, was more
    generous to Doe than a federal court would have been. See United States v. Sherlin, 
    67 F.3d 1208
    ,
    1216 (6th Cir. 1995) (“[U]nilaterally obtained polygraph evidence is almost never admissible
    under Evidence Rule 403.” (quoting Conti v. Comm’r, 
    39 F.3d 658
    , 663 (6th Cir. 1994))). Doe
    has not alleged that Swinton made any factual errors in his presentation of the polygraph evidence.
    To the extent Doe takes issue with Swinton’s conclusion that the polygraph was not conclusive,
    Swinton was required to view the evidence “in a light most favorable to [Roe].” He did not breach
    a contractual obligation to Doe by doing so.
    In Doe’s reply brief, he raises a new argument about the omission of facts favorable to Doe
    from Swinton’s report. Doe has likely forfeited this argument by failing to raise it in his opening
    brief and then referencing it only briefly on reply. See Tyson v. Sterling Rental, Inc., 
    836 F.3d 571
    , 580 (6th Cir. 2016). But even if the argument is properly before us, it suffers from the same
    infirmity as the polygraph argument. Swinton included the facts favorable to Doe—about Roe’s
    intoxication and flirtatiousness, the timeline, and Doe’s lack of familiarity with Roe’s apartment—
    in his report. Swinton was not required to draw Doe’s preferred conclusions from that evidence;
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    No. 18-3339, Doe v. Univ. of Dayton
    to the contrary, as already explained, he was required to view the evidence in the light most
    favorable to Roe.
    We therefore find no basis to conclude that Swinton or his employer committed a breach
    of contract.
    3.      Breach of Covenant of Good Faith and Fair Dealing
    Doe next claims that Dayton, NCHERM, and Swinton breached the implied covenant of
    good faith and fair dealing. This claim invokes the rule, recognized in Ohio law, that “[i]n addition
    to a contract’s express terms, every contract imposes an implied duty of good faith and fair dealing
    in its performance and enforcement.” 
    Lucarell, 97 N.E.3d at 469
    . But as the Ohio Supreme Court
    held just last year, “there is no independent cause of action for breach of the implied duty of good
    faith and fair dealing apart from a breach of the underlying contract.” Id.; see also Ne. Ohio Coll.
    of Massotheraphy v. Burek, 
    759 N.E.2d 869
    , 875 (Ohio Ct. App. 2001) (same). Because the
    Defendants did not breach contract terms or otherwise act in bad faith, there is no independent
    basis to maintain this cause of action for breach of the implied covenant.
    In sum, the University, Swinton, and NCHERM adhered to the procedures laid out in the
    Handbook. Doe argues that those procedures are themselves flawed, but his dissatisfaction does
    not give rise to a claim for breach of contract. The district court properly dismissed all Doe’s
    contract claims.
    C.      Tort Claims
    We turn next to Doe’s tort claims. As with the claims for breach of contract, these claims
    are creatures of state law analyzed pursuant to the decisions of Ohio courts.
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    No. 18-3339, Doe v. Univ. of Dayton
    1.      Promissory Estoppel and Negligence
    Doe argues the district court should not have dismissed his promissory estoppel and
    negligence claims against Dayton, NCHERM, and Swinton.
    Though these two claims have distinct elements, Doe’s allegations as to each suffer from
    the same flaw. The first element of a promissory estoppel claim is a “clear and unambiguous”
    promise. Cohen & Co. v. Messina, 
    492 N.E.2d 867
    , 872 (Ohio Ct. App. 1985). The first element
    of a negligence claim is “the existence of a duty.” Armstrong v. Best Buy Co., 
    788 N.E.2d 1088
    ,
    1090 (Ohio 2003). In this case, the promises made and duties owed are found in the terms of the
    Handbook and in Title IX itself.
    Claimed violations of Handbook terms have already been analyzed in their proper place,
    as potential breaches of contract. See O’Neill v. Kemper Ins. Cos., 
    497 F.3d 578
    , 583 (6th Cir.
    2007) (“In Ohio, ‘where the parties have an enforceable contract and merely dispute its terms,
    scope, or effect, one party cannot recover for promissory estoppel.’” (alterations omitted) (quoting
    Terry Barr Sales Agency, Inc. v. All-Lock Co., 
    96 F.3d 174
    , 181 (6th Cir. 1996))); Bowman v.
    Goldsmith Bros. Co., 
    109 N.E.2d 556
    , 557 (Ohio Ct. App. 1952) (“[A]n action of tort for
    negligence cannot be maintained unless the defendant’s conduct constituted the breach of a duty
    imposed by law, apart from it being a breach of an obligation created by agreement of the parties,
    either express or implied.”). There is no dispute that the Handbook is a contract, so Doe’s response
    that these claims are pled in the alternative to his contract claims does not rescue them.
    Claimed violations of Title IX have likewise been analyzed in their proper place, under
    recognized Title IX rubrics—not as freestanding tort claims. See Horner ex rel. Horner v. Ky.
    High Sch. Athletic Ass’n, 
    206 F.3d 685
    , 691 (6th Cir. 2000) (“The Supreme Court rejected the use
    of agency or negligence principles to render the school district liable for monetary damages under
    Title IX.” (citing Gebser v. Lago Vista Indep. Sch. Dist., 
    524 U.S. 274
    , 285 (1998))); see also Stiles
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    No. 18-3339, Doe v. Univ. of Dayton
    v. Grainger County, 
    819 F.3d 834
    , 849 (6th Cir. 2016) (“Title IX authorizes suit only against the
    school itself and not individual administrators . . . .”).
    The promissory estoppel and negligence claims were therefore properly dismissed.
    2.       Defamation
    Doe also brings defamation claims against Roe.2 Under Ohio law, a plaintiff alleging
    defamation must show: “(1) that a false statement of fact was made, (2) that the statement was
    defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a
    proximate result of the publication, and (5) that the defendant acted with the requisite degree of
    fault in publishing the statement.” Am. Chem. Soc’y v. Leadscope, Inc., 
    978 N.E.2d 832
    , 852 (Ohio
    2012). Absolute and qualified privilege are recognized defenses to defamation, see M.J. DiCorpo,
    Inc. v. Sweeney, 
    634 N.E.2d 203
    , 209 (Ohio 1994), and truth is an absolute defense, see McPeek
    v. Leetonia Italian-Am. Club, 
    882 N.E.2d 450
    , 454–55 (Ohio Ct. App. 2007).
    Doe does not dispute that Roe’s statements made in preparation for and during the
    disciplinary hearing are entitled to absolute immunity. See Savoy v. Univ. of Akron, 
    15 N.E.3d 430
    , 435–36 & n.3 (Ohio Ct. App. 2014) (affording absolute privilege to statements made in the
    context of university disciplinary proceedings). Instead, he focuses on Roe’s alleged statements
    to six friends and roommates that Doe sexually assaulted her. Private statements to friends are not
    the type of utterances commonly thought of as giving rise to defamation claims. See, e.g., Hustler
    Magazine v. Falwell, 
    485 U.S. 46
    , 47 (1988) (parody in a national magazine); Garrison v.
    Louisiana, 
    379 U.S. 64
    , 65 (1964) (statement at a press conference); N.Y. Times Co. v. Sullivan,
    2
    The district court stated in a footnote, citing Caci v. Laborers International Union, No. 97-CV-0033A, 
    2000 WL 424199
    , at *1–2 (W.D.N.Y. Mar. 31, 2000), aff’d sub nom. Panczykowski v. Laborers’ Int’l Union, 2 F. App’x 157
    (2d Cir. 2001), that “[i]t is entirely conceivable that Plaintiff[’]s state-law claims against Roe are pre-empted, given
    that they contradict the findings of the process Doe contracted for, under the umbrella of Title IX, and resolution of
    their truthfulness requires re-opening the Title IX process.” Roe does not advance this argument on appeal, so we do
    not decide the issue here.
    -21-
    No. 18-3339, Doe v. Univ. of Dayton
    
    376 U.S. 254
    , 256 (1964) (full-page advertisement in a national newspaper). We do not lightly
    apply a framework commonly applied to public statements about third parties in this most personal
    of contexts: a conversation with intimates about your own possible sexual assault. Nor do we
    disregard the risk that victims of sexual assault could be dissuaded from sharing their
    experiences—and so from seeking support, justice, and treatment—by looming defamation suits.
    Ohio law is capable of this task. Because these statements to friends do not bear a
    “reasonable relation” to the disciplinary proceedings, Surace v. Wuliger, 
    495 N.E.2d 939
    , 943
    (Ohio 1986), we apply Ohio’s test for qualified privilege. The elements of qualified privilege “are
    fully satisfied by showing that the relationship of the parties to the communication is ‘such as to
    afford a reasonable ground for supposing an innocent motive for giving information and to deprive
    the act of an appearance of officious intermeddling in the affairs of others.’” McCartney v. Oblates
    of St. Francis de Sales, 
    609 N.E.2d 216
    , 224 (Ohio Ct. App. 1992) (emphasis omitted) (quoting
    Hahn v. Kotten, 
    331 N.E.2d 713
    , 720 (Ohio 1975)). Roe described (albeit, according to the
    complaint, incorrectly) an incident that personally involved her to a small number of friends and
    roommates who shared an interest in her health and well-being. Doe does not allege that she shared
    that description widely. Roe’s version of the events, moreover, bears many similarities to Doe’s—
    Doe agrees the sexual encounter occurred, and he told the interviewer that Roe said, “I don’t think
    I want to do this,” as the encounter was ending. At the hearing, the Board determined that Roe’s
    description of events was more likely than not to be true. See 
    McPeek, 882 N.E.2d at 454
    –55.
    Doe must therefore allege actual malice. See 
    McCartney, 609 N.E.2d at 224
    . To do so, he relies
    on a legal conclusion in his complaint, that “Roe made her false and non-privileged statements
    negligently, with knowledge of their falsity, or with reckless disregard for their truth or falsity.”
    -22-
    No. 18-3339, Doe v. Univ. of Dayton
    “[W]e ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” 
    Iqbal, 556 U.S. at 678
    (quoting Twombly, 550 U.S.at 555).
    Under these circumstances, the district court properly dismissed the defamation claims.
    3.       Intentional Infliction of Emotional Distress
    Doe next argues that the district court should not have dismissed his claim against all
    Defendants for intentional infliction of emotional distress. To state such a claim under Ohio law,
    Doe must allege that:
    (1) the defendant intended to cause, or knew or should have known that his actions
    would result in serious emotional distress; (2) the defendant’s conduct was so
    extreme and outrageous that it went beyond all possible bounds of decency and can
    be considered completely intolerable in a civilized community; (3) the defendant’s
    actions proximately caused psychological injury to the plaintiff; and (4) the
    plaintiff suffered serious mental anguish of a nature no reasonable person could be
    expected to endure.
    Morrow v. Reminger & Reminger Co., 
    915 N.E.2d 696
    , 712–13 (Ohio Ct. App. 2009).
    This test is not satisfied merely by showing “that the defendant has acted with an intent
    which is tortious or even criminal”; rather, Ohio courts find liability “only where the conduct has
    been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
    decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” 
    Id. at 713–14
    (quoting Yeager v. Local Union 20, Teamsters, 
    453 N.E.2d 666
    , 671 (Ohio 1983)). As
    described above, Swinton, the University, and NCHERM complied with the requirements of Title
    IX and the Student Handbook. Even assuming the procedures were flawed, their conduct is neither
    outrageous nor atrocious. See Miami 
    Univ., 882 F.3d at 599
    (6th Cir. 2018) (concluding that even
    though the plaintiff had plausibly alleged an erroneous outcome under Title IX, the conduct did
    not “shock the conscience” for purposes of a due process claim). Roe instigated sexual harassment
    proceedings after discussing the incident within her immediate circle of friends; the Board then
    found her description of the events more credible than Doe’s. Neither discussing a sexual
    -23-
    No. 18-3339, Doe v. Univ. of Dayton
    encounter with friends—even inaccurately—nor filing a complaint that is ultimately accepted as
    more likely than not to be true exceeds the bounds of decency. See Hanly v. Riverside Methodist
    Hosp., 
    603 N.E.2d 1126
    , 1132 (Ohio Ct. App. 1991) (publishing that the plaintiff was discharged
    for sexual harassment, even if it exceeded the bounds of qualified privilege, “was not so extreme
    and outrageous to support a claim for intentional infliction of emotional distress”). The district
    court properly dismissed this claim.
    D.        Declaratory Judgment
    Last of all, Doe argues that his declaratory judgment claim against Dayton for violation of
    the Handbook and Title IX should not have been dismissed. The Declaratory Judgment Act is
    procedural in nature and “does not create an independent cause of action” that can be invoked
    absent some showing of an articulated legal wrong. Davis v. United States, 
    499 F.3d 590
    , 594 (6th
    Cir. 2007). Because Doe’s other claims have been dismissed, his declaratory judgment claim
    likewise fails.
    III. CONCLUSION
    For the foregoing reasons, the district court’s decision dismissing all claims is
    AFFIRMED.
    -24-