John Doe v. University of Southern Indiana ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1864
JOHN DOE,
Plaintiff-Appellant,
v.
UNIVERSITY OF SOUTHERN INDIANA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:21-cv-00144-TWP-MPB — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED JULY 27, 2022 — DECIDED AUGUST 8, 2022
____________________
Before HAMILTON, BRENNAN, and ST. EVE, Circuit Judges.
HAMILTON, Circuit Judge. A Title IX committee at the
University of Southern Indiana found by a preponderance of
evidence that one student, plaintiff-appellant John Doe, had
sexually assaulted another student, Jane Doe. The committee
imposed a three-semester suspension. After losing his appeal
through the university’s procedures, John brought this
lawsuit. He alleges that the university violated Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681(a), by
2 No. 22-1864
discriminating against him on the basis of his sex. He sought
a preliminary injunction to stop the university from imposing
the suspension, but the district court denied his request. We
affirm. To secure a preliminary injunction, John needs to show
“that he is likely to succeed on the merits,” among other
requirements. Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 20 (2008). John has not shown he is likely to succeed
on his claim of sex discrimination, so we agree with the
district court that he is not entitled to a preliminary
injunction.
I. Factual and Procedural Background
The record in this case includes documents from the uni-
versity’s process for handling complaints of sexual assault,
which included an outside investigator’s report with exhibits;
John’s and Jane’s written responses to the investigative report;
an audio recording and transcript from the formal hearing on
Jane’s complaint; the appointed hearing committee’s written
decision on her complaint; documents from the appeal pro-
cess, including the decision affirming the committee; and var-
ious correspondence from the process. The district court did
not hold an evidentiary hearing on John’s motion for a pre-
liminary injunction. Neither party sought such a hearing. Our
account of the facts is drawn from the extensive record.
John and Jane met as freshmen. The two quickly became
“best friends” and spent time together almost daily. During
the night of November 13 and early morning of November 14,
2020, John and Jane had been hanging out and drinking with
friends. Jane acknowledges that she was very intoxicated that
night and was repeatedly sick to her stomach. John maintains
that he stayed sober throughout the night. At some point, John
left, but around 2:00 am, Jane sent John a message inviting
No. 22-1864 3
him to come back and join her and their friends in her room.
He did.
The Title IX complaint against John concerned what hap-
pened after he returned. Jane complained that later that night,
John got on her bed and the two started kissing. Jane acknowl-
edged that they had kissed on prior occasions, and she did not
tell him to stop kissing her that night. In a complaint filed
three months later, however, she asserted that John went on
to touch her breasts and digitally penetrate her without her
consent. Later on November 14, Jane told her roommate about
what she said was her sexual encounter with John the previ-
ous night. She did not tell her roommate then that it was with-
out her consent.
After the night of November 13–14, 2020, Jane and John
communicated regularly, at school and during the winter
holidays. Jane did not tell anyone at school that she had been
sexually assaulted, i.e., that the encounter was without her
consent, until February 11, 2021.That day Jane had a panic
attack and told her roommate and one of her suitemates that
she had not consented to John’s actions. The roommate
reported the incident to the university’s public safety office.
Jane then blocked John’s phone number and social media
accounts. Jane filed a written complaint with the university’s
Title IX coordinator on February 25. John received formal
notice of the complaint on March 26. At that point, under
university policy, John and Jane were each entitled to an
advisor to assist with the grievance process.
The university hired a lawyer from an outside law firm to
investigate Jane’s complaint. The investigator began by
interviewing the parties. In her interview, Jane said that John
touched her breasts and digitally penetrated her without her
4 No. 22-1864
consent. When asked if she was “okay with the kissing,” Jane
said, “I didn’t like want to kiss him, but like I didn’t, I didn’t
like tell him to stop at that point.” As for John, he
acknowledged hanging out with Jane that night and into the
early morning. But he denied any sexual contact with Jane
and denied that they were ever in bed together that night.
John told the investigator that he and Jane had kissed and
cuddled before, “but that was, that was it.” The investigator
also interviewed Jane’s roommate and suitemate who were
there the night in question. Both said they remembered seeing
John with Jane in her bed at some point that night. The
investigator compiled a preliminary report summarizing the
interviews and documents he received from the parties. John
and Jane both submitted written statements in response to the
preliminary investigative report. 1
On July 26, 2021, the university notified John and his ad-
visor that it would hold a hearing on Jane’s complaint. (John’s
lawyer in this appeal and before the district court was his ad-
visor during the grievance process.) As with the investigation,
the university delegated the hearing process to outside con-
tractors, a committee of two lawyers and an educator from an
independent firm that specializes in Title IX services. Before
the hearing, the university sent John and his advisor a copy of
the agenda and the university’s policy that would govern the
procedures. John and his advisor also met with the school’s
1 Jane also spoke with a Vanderburgh County Sheriff’s detective about
the November 13–14 incident. She later declined to pursue criminal
charges. Her statements to the detective were included in the investigative
report.
No. 22-1864 5
interim Title IX Coordinator to discuss the procedures and
any questions they might have.
The hearing took place by video conference on August 4,
2021. Jane, John, the roommate, and the suitemate answered
questions. The committee chair handled the direct question-
ing of each witness. Under the university’s policy, John’s and
Jane’s advisors were barred from objecting during question-
ing, but they could and did cross-examine the witnesses. Dur-
ing her turn, Jane acknowledged that she had not objected to
kissing John, but she stood by her accusation that John had
touched her breasts and digitally penetrated her without her
consent in the early hours of November 14. Jane was also
asked about potential inconsistencies in her account regard-
ing her clothing, what she had been drinking that night, and
just what time the assault occurred. 2
John’s story also changed in one important way. He con-
tinued to maintain that nothing sexual happened on the night
in question and denied that he had lain in Jane’s bed with
her. 3 He told the committee, however, that he had digitally
penetrated her about a week before November 14, at a time
when she was sober and consented. As the committee later
wrote, that position was “directly and dramatically at odds
with his statement during the investigation that he and [Jane]
2 In our comments about the kissing, we do not mean to imply that
this situation would have met the legal definition of consent. Jane was
very intoxicated that night. From a legal standpoint, it is possible that she
was incapable of consenting to any sexual activity. The committee made
no such finding, however, and did not make its decision on that basis.
3 When pressed on this point, John conceded that he sat on the bottom
of Jane’s bed at one point that evening when everyone was hanging out in
her room. He continued to deny ever lying in bed with her that night.
6 No. 22-1864
had only ever kissed and cuddled.” In John’s new version of
events, Jane was simply mistaken or confused as to what had
happened the night of November 13–14.
A few weeks later, the committee issued its written
decision. In the jargon of Title IX, the committee found by a
preponderance of evidence that John was “responsible” for
committing sexual assault. The committee imposed a three-
semester suspension and mandated sexual harassment
education to be completed upon his return. John filed an
appeal, as authorized under the university’s policies. In line
with earlier proceedings, the university delegated John’s
appeal to an outside lawyer. Jane was entitled to respond to
John’s appeal, but her response was submitted after the
deadline and was not submitted to the appeal officer or to
John. On September 22, 2021, the appeal officer issued a
written decision affirming the committee’s decision.
John filed a complaint in state court two days later. He al-
leged, among other things, that the university violated Title
IX by discriminating against him on the basis of his sex. The
state court issued a temporary restraining order barring the
university from imposing the suspension pending further
proceedings. The university then removed the case to federal
court based on federal-question jurisdiction. See 28 U.S.C.
§§ 1331, 1441, and 1446. The parties agreed to extend the
terms of the state court’s temporary restraining order pending
a decision on John’s motion for a preliminary injunction, for
which the district court set a briefing schedule. After briefing
and oral argument, the district court denied his motion. Doe
v. University of Southern Indiana, No. 21-cv-00144, 2022 WL
1471037 (S.D. Ind. May 10, 2022). Under 28 U.S.C. § 1292(a),
John has appealed the denial of his motion. We denied his
No. 22-1864 7
request for an injunction pending appeal, but we ordered ex-
pedited briefing and argument.
II. Analysis
A. Legal Standard
“A preliminary injunction is an extraordinary remedy
never awarded as of right.” Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 24 (2008). When evaluating a prelimi-
nary injunction decision, “[w]e review the district court’s
findings of fact for clear error, its legal conclusions de novo,
and its balancing of the factors for a preliminary injunction
for abuse of discretion.” D.U. v. Rhoades, 825 F.3d 331, 335 (7th
Cir. 2016). An error of law can cause an abuse of discretion.
Common Cause Indiana v. Lawson, 978 F.3d 1036, 1039 (7th Cir.
2020).
To secure a preliminary injunction, John “must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an in-
junction is in the public interest.” Winter, 555 U.S. at 20. The
first step in the analysis requires a plaintiff to “demonstrate
that [his] claim has some likelihood of success on the merits,
not merely a better than negligible chance.” Mays v. Dart, 974
F.3d 810, 822 (7th Cir. 2020) (internal citation and quotation
marks omitted). That first step “is often decisive,” Braam v.
Carr, 37 F.4th 1269, 1272 (7th Cir. 2022), and it is decisive here.
We need not address the remaining elements. 4
4 This circuit uses a “sliding scale” approach to preliminary injunc-
tions: “the more likely the plaintiff is to win on the merits, the less the
balance of harms needs to weigh in his favor, and vice versa.” Mays, 974
F.3d at 818. But even if we were persuaded that the balance of harms
8 No. 22-1864
In assessing the merits, we do not accept John’s allegations
as true, nor do we give him the benefit of all reasonable infer-
ences in his favor, as would be the case in evaluating a motion
to dismiss on the pleadings. Cf. Alarm Detection Systems, Inc.
v. Village of Schaumburg, 930 F.3d 812, 823 (7th Cir. 2019)
(plaintiffs pled a “plausible” claim “because of the favorable
inferences we afford[ed] to them under a Rule 12(b)(6) analy-
sis,” but plaintiffs had not “demonstrated a likelihood of suc-
cess on the merits”); see also In re Federal Bureau of Prisons’
Execution Protocol Cases, 980 F.3d 123, 134 (D.C. Cir. 2020) (pre-
liminary injunction inquiry is a “decidedly far more searching
inquiry” than motion to dismiss). We also do not give John
the benefit of conflicting evidence, as we would in reviewing
a grant of summary judgment. See Imaging Business Machines,
LLC v. BancTec, Inc., 459 F.3d 1186, 1192 (11th Cir. 2006) (con-
trasting “significantly different burden” in moving for pre-
liminary injunction with what is required to defeat summary
judgment). In reviewing the district court’s decision on a pre-
liminary injunction, we approach the record from a neutral
and objective viewpoint, assessing the merits as we think they
are likely to be decided after more complete discovery and
litigation.
A Title IX sex discrimination claim requires proof that
“(1) the educational institution received federal funding,
(2) [the] plaintiff was excluded from participation in or denied
the benefits of an educational program, and (3) the
educational institution in question discriminated against [the]
weighed overwhelmingly in John’s favor (and we are not saying it does),
he would still need to show a likelihood of success on the merits, “not
merely a ‘better than negligible’ chance.” Id. at 822, citing Nken v. Holder,
556 U.S. 418, 434 (2009).
No. 22-1864 9
plaintiff based on gender.” Doe v. Columbia College Chicago, 933
F.3d 849, 854 (7th Cir. 2019). The third element is the only one
in dispute here. We emphasize, though, that the federal
district and appellate courts do not provide third and fourth
forums—after the university committee’s hearing and the
administrative appeal—to decide what actually happened
between Jane and John on the night of November 13–14, 2020.
In reviewing the denial of a preliminary injunction under
Title IX, the question before us is whether John is likely to be
able to show the university discriminated against him on the
basis of his sex in suspending him on the basis of Jane’s
complaint and all available evidence.
John has not offered any direct evidence of sex discrimi-
nation. He instead relies on essentially three types of circum-
stantial evidence to support his claim: public pressure on the
university to respond aggressively to complaints of sexual as-
saults by male students, “procedural irregularities” in the
university’s grievance process, and finally the weight of the
evidence regarding Jane’s complaint. We take each in turn,
keeping in mind that the ultimate inquiry must consider the
totality of the circumstances. Doe v. Purdue University, 928
F.3d 652, 667–68, 670 (7th Cir. 2019).
B. Public Pressure on the University
First, John contends that the university was under public
pressure to find that he sexually assaulted Jane and that the
desire to avoid further criticism motivated the university to
act with an anti-male bias against him. John points to social
media posts, an online petition, and a student newspaper ar-
ticle that all criticized the university for its inaction on Jane’s
complaint and others like it. He also directs us to university
10 No. 22-1864
actions in response, including issuing a statement that the
university takes sexual assault seriously. 5
Evidence of public pressure on a university can be relevant
in assessing sex discrimination claims under Title IX. See
Purdue University, 928 F.3d at 668–69 (“The [Dear Colleague]
letter and accompanying pressure gives John a story about
why Purdue might have been motivated to discriminate
against males accused of sexual assault.”); accord, Schwake v.
Arizona Board of Regents, 967 F.3d 940, 948–49 (9th Cir. 2020);
Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018); Doe v. Columbia
University, 831 F.3d 46, 56–58 (2d Cir. 2016). Public pressure is
not enough on its own to support a claim of discrimination,
however. Purdue University, 928 F.3d at 669; see also Columbia
College, 933 F.3d at 855 (“A plaintiff cannot rely on these
generalized allegations alone, however, but must combine
them with facts particular to his case to survive a motion to
dismiss.”).
John’s case is distinct from those cases where evidence of
such public pressure could provide support for other circum-
stantial evidence of bias. Here, the university took significant
steps to insulate the grievance process from any public pres-
sure. It used independent contractors at each stage of the pro-
ceedings. The outside lawyer who did the original investiga-
tion, the committee members who heard the case, and the out-
side lawyer who acted as appeal officer were not affiliated
with the university. No school officials were involved even in
deciding John’s sanction.
5Jane’s complaint is the only formal Title IX complaint against John
that the university received.
No. 22-1864 11
John’s assertion that public pressure on the university
supports his claim of sex discrimination is less convincing
when no university officials—who were the focus of the
reported pressure—were responsible for compiling the
evidence or assessing the merits of Jane’s complaint. Cf.
Purdue University, 928 F.3d at 657–58, 668–69 (alleged external
pressure on school was relevant to plaintiff’s case; university
officials were involved in every step of the grievance process,
and a Title IX coordinator, who “bore some responsibility for
[the school’s] compliance,” ultimately decided the merits and
sanction in plaintiff’s case, and the school was subject to a
federal Department of Education investigation for Title IX
compliance). 6
C. Procedural Irregularities
Next John offers what he says were twelve procedural ir-
regularities during the grievance process. Few trials in civil
courts are error-free, but appellate courts do not quickly infer
that procedural errors in a trial show the judge was biased.
On the other hand, if procedural irregularities are sufficiently
numerous, lopsided, and/or important, they can sometimes
support an inference of sex discrimination. Purdue University,
6 The university’s reliance on outside contractors reminds us of the
role that outside experts can play under ERISA, for example, to help miti-
gate conflicts of interest faced by employee benefit plan administrators or
other fiduciaries deciding about paying benefits. See, e.g., Hightshue v. AIG
Life Ins. Co., 135 F.3d 1144, 1148 (7th Cir. 1998), citing Howard v. Shay, 100
F.3d 1484, 1488 (9th Cir. 1996). We do not mean to adopt any general rule
of law addressing the point under Title IX. As a matter of fact here, though,
it is difficult to see public pressure about sexual assault on campus in gen-
eral or the accusations against John in particular causing the outside in-
vestigator, hearing officers, or appeal officer to be biased against John
based on his gender.
12 No. 22-1864
928 F.3d at 669; accord, Doe v. University of Denver, 1 F.4th 822,
831–34 (10th Cir. 2021). But a plaintiff cannot prove gender
discrimination by merely identifying mistakes or imperfec-
tions in the process. Doe v. Samford University, 29 F.4th 675, 688
(11th Cir. 2022) (“A deviation from a Title IX policy is not, in
and of itself, a violation of Title IX.”).
To put the point in arguably circular terms, procedural ir-
regularities may support a finding of sex bias under Title IX
if, in light of all the circumstances, a fact-finder is convinced
that the defendant deviated from proper procedures not be-
cause of human error but by design, to achieve covertly what
it could not do openly: discriminate against the plaintiff on
the basis of his sex. “[A]s the number of irregularities in-
creases, or the irregularities become more serious,” it begins
to look less likely that the errors were due to benign reasons.
Samford University, 29 F.4th at 697–98 (Jordan, J., concurring)
(collecting cases). We have often made essentially this point
about departures from regular procedure in employment dis-
crimination cases. E.g., Baines v. Walgreen Co., 863 F.3d 656, 664
(7th Cir. 2017) (reversing summary judgment); Gordon v.
United Airlines, Inc., 246 F.3d 878, 891–92 (7th Cir. 2001)
(same). The same reasoning can apply under Title IX.
The devil is in the details, though. Take the Purdue
University case, for example. The plaintiff alleged what
amounted to a sham grievance process. He alleged that the
school’s Title IX committee found that he committed sexual
assault despite never hearing directly from the other party.
928 F.3d at 669. She did not provide her own account either in
writing or orally. According to the plaintiff, however, the
panel relied solely on a letter submitted on her behalf by a
university employee to find that her charge was more credible
No. 22-1864 13
than his denial. In addition, under the procedures used at the
time, the Title IX coordinator did not give the plaintiff a copy
of the investigative report or share its contents with him. The
plaintiff allegedly received only a redacted version of the
investigative report, and that only a few minutes before the
hearing, when he learned it “falsely claimed that he had
confessed to [the other party’s] allegations.” Id. at 657.
Further, the investigative report did not include favorable
evidence that he had submitted, he was barred from
presenting witnesses, and two of the three administrators on
the panel admitted that they had not even read the
investigative report. In reversing dismissal on the pleadings,
we concluded that such significant and slanted procedural
irregularities could, if proven, support an inference of sex
bias. Id. at 669–70.
The purported procedural irregularities offered by John
do not come close to those alleged in Purdue University or
cases like it. See, e.g., Menaker v. Hofstra University, 935 F.3d
20, 34–35 (2d Cir. 2019) (plaintiff alleged, among other things,
that school did not interview potential witnesses, give
plaintiff the investigative report, allow him to file a written
response, or produce a written decision of responsibility); see
also Schwake, 967 F.3d at 951 (plaintiff alleged school provided
him only an oral account summarizing the complainant’s
allegations, “failed to consider his version of the alleged
assault,” did not follow up with any of his witnesses or the
“evidence he offered in his defense,” found the plaintiff
responsible without providing him “any access to evidence or
considering his exculpatory evidence,” and finally suspended
him based on additional accusations “to which he was not
given an opportunity to respond”). In this case, by
comparison, when we dig into the twelve errors that John
14 No. 22-1864
presents, we find that some were not errors at all. Others were
arguable errors that he invited, and a few applied equally to
both John and Jane. The genuine and arguable errors that
remain do not persuade us that John is likely to prove bias
against him because of his sex.
1. Non-Errors
Turning first to the non-errors, John says that the univer-
sity violated 34 C.F.R. § 106.45(b)(2)(i)(B) (2020) by “first giv-
ing notice of Jane’s Title IX charges to [him] immediately prior
to the hearing and misrepresent[ing] the existence of her writ-
ten complaint and the information therein.” But John received
a notice more than four months before the hearing. Section
106.45(b)(2)(i)(B) requires only that a university give a re-
spondent “sufficient details known at the time.” While John
did not receive a verbatim copy of Jane’s complaint, the
March 26 notice included her name, the general allegation
against him, and when and where the alleged wrongful con-
duct occurred. That’s all the regulations demand. John and his
lawyer had ample notice of Jane’s accusations and ample time
to prepare for the hearing, especially after receiving the inves-
tigator’s report.
John also contends the university “suppressed” exculpa-
tory evidence by withholding from him Jane’s response to his
appeal. It did not. Jane filed her appeal letter after the dead-
line. The university enforced that deadline against Jane by let-
ting John’s appeal go unanswered. That is not a procedural
irregularity.
John nonetheless tries to frame this point as a subtle way
for the university to slant the proceedings against him. He
points to the part of Jane’s response to his appeal where she
No. 22-1864 15
explained that “my complaint against him was not that he
kissed me without my consent. My complaint was that he
touched my breasts and digitally penetrated me when I could
not consent and did not consent.” The July 26 letter John re-
ceived with notice of the hearing said that Jane’s Title IX com-
plaint had alleged non-consensual kissing. This incon-
sistency, says John, is evidence that the university knew Jane
had filed a false complaint and withheld that evidence to pro-
tect her credibility under the cloak of enforcing the appeal
deadline.
That is not a convincing series of inferences. It also does
not align with what we typically consider “the suppression of
exculpatory evidence” in criminal law, in which the
prosecution fails to disclose material exculpatory information
that the accused did not know about. See Giglio v. United
States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83(1963). Jane had told the investigator: “I didn’t like want to
kiss him, but like I didn’t, I didn’t like tell him to stop at that
point.” Her response to the investigative report said
definitively that John touched her breasts and digitally
penetrated her without her consent, but she did not say that
he had also kissed her without her consent. Before the
hearing, John received a notice that the committee would hear
evidence on whether John kissed Jane without her consent.
Then at the hearing, Jane was equivocal on that point, saying
she had not wanted to kiss him but had not told him to stop.
At that point John was fully aware of Jane’s apparent
inconsistency on this issue. His advisor had the opportunity
to cross-examine her on it and chose not to do so. The
handling of Jane’s response to the appeal does not reflect anti-
male bias.
16 No. 22-1864
2. Invited Errors
Other alleged errors were invited by John. Take for in-
stance his assertion that the university violated 34 C.F.R.
§ 106.45(b)(6) by “allowing evidence as to prior sexual rela-
tions between John and Jane.” But it was John who made com-
ments about prior sexual relations with Jane (or the lack
thereof) in his interview with the investigator. At the hearing,
John then put the subject front and center by changing his
story, without warning to Jane or the committee. He said for
the first time in the entire proceedings that about a week be-
fore the night in question, he and Jane had engaged in similar
sexual activity, but with her consent. John’s argument faults
the committee for allowing him to talk about his and Jane’s
prior sexual relations as part of his defense. If this was an er-
ror, violating the rules in John’s favor does not show an anti-
male bias against him.
Similarly, John argues the university violated
§ 106.45(b)(6)(i) by allowing witnesses to address statements
of non-witnesses not subject to cross-examination who said
that John had committed other sexual assaults. Issues of
hearsay and evidence of other similar actions by the
respondent have long been controversial in Title IX
adjudications and the governing regulations and agency
guidance. Regardless of the regulations, however, it was John
who opened the door to this evidence. In his response to the
investigative report, John said that Jane “may have been
pressured by [her roommate] to make the false report against
me because [her roommate] has made numerous online posts
falsely accusing me of assaulting other [University of
Southern Indiana] women.” That response called into
question Jane’s motives for filing the complaint. At the
No. 22-1864 17
hearing, one question for Jane was of course why she waited
three months to tell anyone she had been assaulted. She
explained that she felt compelled to speak up after she
realized “there was other girls in danger besides myself,” and
“that needs to stop.” A hearing officer does not show anti-
male bias by asking a complainant to address information the
respondent has invoked to attack her credibility.
In addition, some of the statements arose at the hearing in
response to text messages that John had provided to the in-
vestigator and that had been included in the investigative re-
port. John had submitted close to 50 pages of text messages
with Jane from the day after the alleged assault until her
roommate first reported the incident three months later.
John’s advisor used those text messages at the hearing to try
to impeach Jane’s credibility. A few messages also referred to
other accusations against John. The committee chair asked
Jane to explain what those messages referred to, causing Jane
to introduce non-witness statements to provide context for
what she and John were talking about in the text messages. In
that sense, the very text messages that John provided opened
the door further to this type of evidence. We must also note
that there is no indication in the committee’s decision that it
credited or relied upon accusations against John by anyone
other than Jane. The handling of this information does not
show bias against John, let alone based on his sex.
3. Errors that Applied Equally to Jane and John
Additional offered irregularities applied to both Jane and
John. For instance, John says that the university violated
§ 106.45(b)(5)(iii) of the regulations by telling him that the in-
vestigative report “may not be copied or distributed in whole
or in part,” and that “[v]iolation of this rule will result in
18 No. 22-1864
disciplinary action up to and including dismissal from the
University.” John contends that this notice amounted to a
“gag” order that prevented him from “sharing information
with his parents or any other person who could provide sup-
port or assistance relative to the Complaint process.”
It is difficult to see how preventing John from copying or
distributing the report itself also meant, as he claims, that he
could not share information about the case with his parents,
so we are not convinced this was an error at all. Sec-
tion 106.45(b)(5)(iii) bars schools from “restrict[ing] the ability
of either party to discuss the allegations under investigation
or to gather and present relevant evidence.” We recognize
that provision is in some tension with § 106.71, which requires
that schools protect the confidentiality and identity of the par-
ties in Title IX proceedings, but the two regulations do not
necessarily conflict. Without deciding whether the univer-
sity’s approach to confidentiality in this case amounted to an
error at all, the restriction on distributing the report applied
to Jane as well. The possible procedural error that applied
equally to both Jane and John does not support an inference
of anti-male bias against John.
Along this line, John next contends that the university vi-
olated his rights under § 106.45(b)(8)(i) by restricting the sub-
jects he could raise on appeal. That section permits complain-
ants and respondents to file appeals discussing “[p]rocedural
irregularit[ies] that affected the outcome of the matter,”
among other things. § 106.45(b)(8)(i)(A). The university’s gen-
eral policy, by comparison, restricts the “procedural irregu-
larities” inquiry to those affecting the “investigation.” John
says that policy limitation “restricted his protected rights,”
presumably implying that he could not appeal at least some
No. 22-1864 19
procedural irregularities that affected the hearing. It is not
self-evident that the change in terms (affected the outcome v.
affected the investigation) was intended to change the scope
of a party’s appeal rights. Even if it might have, John did ap-
peal aspects of the proceedings that he argues here were off
limits, and the appeal officer addressed those points in his de-
cision. Moreover, the appeal policy applied to every respond-
ent and every complainant, regardless of sex. The university
did not act with an anti-male bias against John by enforcing a
generally applicable policy that also applied to Jane. 7
4. Arguable Errors
What we have left are procedural choices that could argu-
ably be considered mistakes. They are not enough to show a
likely bias against men. For example, as noted, Jane’s com-
plaint against John asserted a charge of non-consensual kiss-
ing. It also contained charges that John touched her breasts
and digitally penetrated her, all without her consent. The
committee found that it was more likely than not that John
committed the second and third acts, but it did not make a
finding as to the first. Under § 106.45(b)(7)(ii)(A) and (E) of the
regulations, Title IX committees are supposed to render deter-
minations of responsibility for each allegation in a complaint.
Failing to do so here on the non-consensual kissing allegation
was an error.
7 The university’s new policy issued in August 2021 limits procedural
irregularities to those affecting the investigation. This is the policy the
committee used to inform John on the grounds he could appeal. The ap-
peal officer applied the old policy to John’s appeal, which did not contain
a similar limitation.
20 No. 22-1864
John asserts this procedural violation was intentional and
shows the university’s bias. His theory is that if the committee
had found for him on that allegation, it would have been
inconsistent with the committee’s finding that Jane’s story
was consistent and credible. The decision not to make that
finding, he says, is evidence that the committee was biased
against him because of his sex. We are not convinced. At the
hearing, Jane was equivocal about whether the kissing was
consensual. The question of kissing then dropped out of the
hearing as everyone turned their focus to the more serious
allegations that were in dispute. Given the formal accusations,
the committee should have made a finding about the question
of non-consensual kissing, but we have no difficulty
understanding how the focus would shift from that
apparently minor issue to the more serious accusations and
more serious issues affecting both parties’ credibility. The
failure to make a finding on the abandoned non-consensual
kissing point does not seem like convincing evidence of bias
against men in general or John in particular.
John also says that the committee violated
§ 106.45(b)(1)(ii), which provides that “credibility
determinations may not be based on a person’s status as a
complainant, respondent, or witness.” Here, the committee
said that John had a motive to falsify information because he
could face a sanction if he were found responsible. Given the
history of Title IX regulations over the last ten to twelve years
and some schools’ alleged adoption of strongly pro-
complainant procedures and even presumptions, that
warning in the regulations is important. At the same time,
however, § 106.45(b)(1)(ii) is in tension with the “Preamble”
to the regulations, which explains that “Title IX personnel are
not prevented from understanding and taking into account
No. 22-1864 21
each party’s interests and the ‘stakes’ at issue for each party.”
Nondiscrimination on the Basis of Sex in Education Programs
or Activities Receiving Federal Financial Assistance, 85 Fed.
Reg. 30026, 30247 (May 19, 2020). A witness’s motives and
biases are often at the center of decisions about credibility.
Recognizing those factors does not support an inference of sex
bias. 8
Finally, in making its decision, the committee referred to
time stamps from two photographs on cell phones to find a
“plausible” time window during which John could have as-
saulted Jane. The first photo was taken at 4:36 am and showed
Jane on the floor in her room. That photo was referenced in
the investigative report. The second photo was taken at 4:50
am and showed Jane in another room. That photo came up for
the first time at the hearing. Jane said the assault lasted five to
ten minutes. The committee concluded that the assault oc-
curred and reasoned that it could have occurred between the
taking of those two photos. The committee, which met with
the witnesses through a video conference, never saw those
8 Some federal courts have reasoned that evidence of a school’s anti-
respondent bias does not necessarily support an inference of anti-male
bias since both men and women can be victims of sexual assault and can
commit sexual assault, even though most complainants are women and
most respondents are men. See, e.g., Doe v. University of Denver, 952 F.3d
1182, 1196 (10th Cir. 2020) (collecting cases; “Most courts to have
addressed the issue have concluded that evidence of a school’s anti-
respondent bias does not create a reasonable inference of anti-male bias.”);
see also Samford University, 29 F.4th at 690. At least one court has permitted
an inference of anti-male bias where statistical evidence cast some doubt
on whether the university’s “practices were uniformly pro-complainant
and anti-respondent.” University of Denver, 1 F.4th at 835. We need not
resolve this issue here. This arguable error does not support an inference
of sex bias even if general anti-respondent bias could support such a claim.
22 No. 22-1864
photos, however. It relied solely on what the witnesses said
about them in rendering its decision. 9
John now says that the committee violated
§ 106.45(b)(1)(ii) and (b)(5)(i), (vi), and (vii) of the regulations
by relying on the photos to create an “unreliable” timeline
and by not securing the original photos from the parties. But
John did not object to the use of these photos at any point. In
fact, he referred to the 4:36 am photo in his response to the
investigative report as support for his account. And neither
he nor his advisor questioned the photos or their time stamps
at any point. At the hearing, John’s advisor asked the commit-
tee members if they had seen the 4:36 am photo and one ad-
ditional photo (but not the 4:50 am photo) because if they had,
he asked that John and Jane have the chance to see them too.
The committee chair said that they had not seen the photos
and that “[w]e don’t have any information that you don’t.”
No issue of reliability was raised.
To be sure, under the university’s policy, advisors could
not raise objections during the live hearing. But in the lead-up
to the hearing, John and his advisor never indicated that they
9
This practice was consistent with the handling of other photos and
videos. The committee explained:
Throughout the hearing, the parties and witnesses
referred to photos and videos on their phones that had
been described during their interviews but had not
been submitted during the investigation, as well as to
additional photos or videos that had not been
reference[d] in the investigation report. The Decision-
makers have not seen these photographs or videos and
this impacted their ability to establish a reliable
chronology of events.
No. 22-1864 23
had a problem with the authenticity of photos or videos that
were only described by the parties. If authenticity had been at
issue, John’s advisor could have asked witnesses about them
even if he could not make formal objections. He did not do so.
The committee included these two photos in its list of facts
that were “undisputed in that they [were] not points of con-
tention.”
The regulations do not impose the Federal Rules of Evi-
dence on Title IX hearings, and we appreciate the challenges
of handling physical and electronic evidence in a hearing con-
ducted by video conference. Still, we agree with John that it
would have been a better practice to secure physical copies of
the photos before rendering a decision. The committee’s fail-
ure to do so here, however, cannot support a finding of sex
discrimination. The committee relied on the relevant evidence
that the investigator, Jane, John, and the other witnesses dis-
cussed, and John never disputed the reliability of the photos.
Everyone had the same information. The committee’s failure
to secure the physical copies did not amount to evidence of
anti-male bias against John.
At bottom, John has failed to show that any procedural
irregularities, taken one at a time or together, were nearly as
clear or nearly as serious as the errors alleged in Purdue
University. He has not shown that any irregularities were
evidence of gender bias rather than at most simply mistakes.
D. Weight of the Evidence
Finally, John asserts that the committee’s decision was so
clearly against the weight of the evidence that the only way
the committee could have found for Jane was through bias
against him because of his sex. Again, trials in civil courts
24 No. 22-1864
sometimes produce erroneous outcomes as well as proce-
dural errors. Appellate courts do not quickly infer that an er-
roneous result must have been caused by unlawful bias, espe-
cially in difficult credibility contests. In a sufficiently lopsided
Title IX case, however, an erroneous outcome can support an
inference of gender bias. Columbia University, 831 F.3d at 57
(“When the evidence substantially favors one party’s version
of a disputed matter, but an evaluator forms a conclusion in
favor of the other side (without an apparent reason based in
the evidence), it is plausible to infer (although by no means
necessarily correct) that the evaluator has been influenced by
bias.”). That is not what occurred here.
Throughout the process, John and Jane told very different
stories about what occurred on the night of November 13–14,
2020. The outcome turned on whom the committee found
more credible, and both sides had credibility problems to
some degree. John has not convinced us that he is likely to
succeed in showing that the decision to credit Jane was made
because of his sex.
At the hearing, the committee worked through the
investigative report, asking questions of both John and Jane
on factual issues that were still not clear from the report and
their written responses. The committee also gave both Jane
and John a chance to respond to some of the statements made
at the hearing by others that contained arguably new
information. The committee even asked John to walk through
many of the alleged contradictions in Jane’s account that he
had identified in his written response to the investigative
report. The committee let him discuss social media posts and
threats he had received that were not mentioned in the
investigative report to explain how Jane’s accusations had
No. 22-1864 25
affected him. Also, of course, as required under the
regulations and university policy, both advocates had the
chance to cross-examine the witnesses.
In applying a preponderance-of-the-evidence standard,
the committee ultimately believed Jane’s account. It looked
unfavorably on John’s change in narrative from the investiga-
tion to the hearing and concluded that Jane’s story did not
have a comparably serious inconsistency. It also found that
Jane’s account was corroborated in two ways: first, by her
roommate’s consistent statement that Jane told her on No-
vember 14 that John had digitally penetrated her that night
(albeit, not that it was without her consent), which contra-
dicted John’s new account that the sexual encounter hap-
pened a week before. Second, Jane’s suitemate said John was
lying with Jane in bed that evening, bolstering Jane’s version
of events and flatly contradicting John’s denials that he was
ever in bed with Jane that night.
It is also true that there were potential inconsistencies in
Jane’s accounts about whether the kissing was or was not con-
sensual, as well as what Jane was wearing that night, what she
was drinking, and what time the assault occurred. Jane also
originally told a detective that she did not communicate with
John after November 14, which was not true. These issues
were aired at the hearing, however. The committee did not
engage with those inconsistencies and others in the written
report as much as it could have, but that does not mean its
findings were against the weight of the evidence, let alone ev-
idence of bias.
Trial judges sometimes credit part of a witness’s story
even if that witness was not consistent with other aspects of
her story. E.g., United States v. Tate, 822 F.3d 370, 374 (7th Cir.
26 No. 22-1864
2016) (“Discrepancies or inconsistent prior statements are of
course relevant in assessing witness credibility, but they ‘do
not, as a matter of law, render a witness’s testimony incredi-
ble.’” (citation omitted)). Here, Jane stayed consistent with the
core version of events: the non-consensual touching of her
breasts and digital penetration of her vagina, and key aspects
of her account were corroborated by others. We do not know
just what happened between John and Jane on the night of
November 13–14, 2020, but that is not the question for federal
courts on the merits of John’s Title IX claim. On the record
before us, the committee’s choice to credit Jane’s account over
John’s appears reasonable and falls well short of proof that
the committee was biased against men. Accord, Samford Uni-
versity, 29 F.4th at 691 (Title IX committees are not held “to a
higher standard than we hold district courts”).
* * *
Just as few trials are perfect, the hearing in this case was
not perfect. There is room to criticize the proceedings. But
John has not shown that the imperfections or the final deci-
sion against him were likely the products of intentional bias
against his sex. That is the standard. He has not shown a like-
lihood of success on the merits that would support a prelimi-
nary injunction, and the district court did not abuse its discre-
tion in denying one. Proft v. Raoul, 944 F.3d 686, 693 (7th Cir.
2019). We recognize that the consequences of the committee’s
decision are very serious for John: a three-semester suspen-
sion disrupting his college education at a formative stage of
life, and loss of his scholarships for at least that time. Yet even
if John were found to have shown a threat of imminent irrep-
arable harm and a balance of hardships that would weigh in
his favor, he still must show a likelihood of success on the
No. 22-1864 27
merits, not merely “a ‘better than negligible’ chance.” Mays,
974 F.3d at 822. He has not done so. The district court’s denial
of a preliminary injunction is
AFFIRMED.