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JOHN DOE,
Plaintiff,
v. Docket No.
RHODES COLLEGE.
Defendant.
COMES NOW John Doe (hereinafter “Plaintiff”) and makes application to this Court for
a Preliminary Injunction prohibiting Rhodes College (hereinafter “Defendant”) from certain acts
more specifically enumerated hereinbelow. For grounds, Plaintiff would respectfully show as
follows:
This application arises in the context of an action for violation of Title IX of the Civil
Rights Act of 1964. Plaintiff is a senior at Rhodes College in Memphis, Tennessee, who is
alleging that Defendant has violated his rights under Title 20 U.S.C. § 1681. Specifically,
Plaintiff alleges that Defendant’s decision to charge two male respondents while choosing not to
charge a female student accused of participation in the same alleged sexual assault coupled with
external pressure to enforce sexual misconduct policies against male students demonstrates
discrimination against Plaintiff on the basis of his gender. (Compl. ¶¶ 48-63). Defendant’s
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decision not to require the participation of an alleged victim of a sexual assault in the Title IX
hearing and its failure to permit her cross-examination during same, the introduction of last-
minute evidence not previously made available to Plaintiff, the failure to question the female
accused student about her alleged role in the event, and the fact that no witness claimed any
personal knowledge that Plaintiff was involved in the alleged rape cast doubt on the outcome of
the proceedings which ultimately lead to Plaintiff’s expulsion three weeks before graduation, and
the fact that the hearing panel permitted female witnesses without personal knowledge to testify
while failing to call a male student with relevant, direct, personal knowledge of all of the
circumstances surrounding the alleged event. (Compl. ¶¶ 64-81). Further, Plaintiff alleges that
Defendant has selectively enforced its Title IX policies against males by charging the two male
accused with sexual misconduct while declining to charge a female student alleged to have
participated in the assault with a violation of the sexual misconduct policy. (Compl. ¶¶ 78-89).
Federal Rule of Civil Procedure 65 establishes the relevant procedures for the granting of a
preliminary injunction. Rule 65(a)(1) requires notice to the adverse party before a preliminary
injunction is issued. See 13 MOORE’S FEDERAL PRACTICE, § 65.21 (Matthew Bender 3d ed.).
Under the general notice provision of Rule 6(c)(1), at least 5 days’ notice of a motion for
preliminary injunction is required. See 1 Moore’s Federal Rules Pamphlet § 65.3 (Matthew
Bender).
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Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981)
(internal citations omitted). When considering a motion for preliminary injunction, a district
(1) whether the movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury without the
injunction;
(3) whether issuance of the injunction would cause substantial harm to
others; and
(4) whether the public interest would be served by the issuance of the
injunction.
Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)
(citing Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005)). "The four considerations
applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that
must be met." Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003) (citing In re De Lorean
Plaintiff is likely to succeed on the merits of his Title IX complaint. Title IX of the
Education Amendments of 1972 provides that "[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
In an unpublished 2003 decision, the Sixth Circuit recognized: "Neither the Supreme
Court nor the Sixth Circuit has set forth a standard for determining when intentional
discrimination has occurred in a case where a student has relied on Title IX to challenge either
the initiation or the outcome of a disciplinary proceeding." Mallory v. Ohio Univ., 76 F. App'x
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634, 638 (6th Cir. 2003). In a recent decision from the Southern District of Ohio, a court in this
circuit noted that this remains the status of the law. Doe v. Miami Univ., 247 F. Supp. 3d 875,
The Mallory court relied upon the Second Circuit's decision in Yusuf v. Vassar College,
35 F.3d 709 (2d Cir. 1994). The Sixth Circuit continued to rely on the framework set out in
Yusuf in Doe v. Cummins, 662 F. App'x 437, 451 (6th Cir. 2016) ("Although we are not subject
previously looked to the Second Circuit's decision in Yusuf v. Vassar College, 35 F.3d 709, 715
In Yusuf, the Second Circuit identified two standards for evaluating college disciplinary
proceedings under Title IX, “erroneous outcome” and “selective enforcement.” 35 F.3d at 715.
Under the "erroneous outcome" theory a plaintiff must plead: (1) "facts sufficient to cast some
articulable doubt on the accuracy of the outcome of the disciplinary proceeding" and (2) a
"particularized . . . causal connection between the flawed outcome and gender bias.
Under the second standard, “selective enforcement” a plaintiff must demonstrate that
“regardless of the student's guilt or innocence, the severity of the penalty and/or the decision to
initiate the proceeding was affected by the student's gender." Id. To prevail on a "selective
enforcement" claim, a 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. Doe v. Cummins, 662 F.
App'x 437, 452 (6th Cir. 2016); see also Sahm v. Miami Univ., 110 F. Supp. 3d 774, 778 (S.D.
Ohio 2015). Plaintiff claims violations of Title IX under selective enforcement and erroneous
outcome theories.
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1. Erroneous outcome
Plaintiff alleges that the following procedural irregularities cast doubt on the accuracy of
1. Rhodes’ failure to require the participation of the alleged victim (Compl. ¶ 67);
3. The failure of the sexual misconduct hearing panel to base its decision on first-
4. Rhodes’ failure to charge E.M., the female student that C.S. accused of
participation in the alleged assault such that all of the accused students were not
5. Rhodes’ failure to question E.M. about the accusation that she participated in the
alleged sexual assault either during the investigation or during the hearing
(Compl. ¶ 72);
6. The alleged victim identified only one witness, E.M., whom she asserts recalling
being present during the alleged assault. Despite E.M.’s testimony that no such
assault happened (and no countervailing testimony from anyone else), the hearing
panel still found Plaintiff responsible (Compl. ¶¶ 30, 41, 49, 52);
7. Rhodes’ presentation of last-minute evidence at the hearing which was not part of
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10. Rhodes’ reliance on hearsay within hearsay within hearsay as the sole basis for
investigator’s report alleged that C.S. identified Plaintiff and Z.W. with a “thumbs
up” when questioned by her roommates at a time when she was so intoxicated that
she could not speak. C.S. later had no memory of specific perpetrators, and the
11. Rhodes’ decision to give weight to the testimony of female students testifying to
pure hearsay over the testimony of a male student with direct knowledge. (Compl.
¶ 81).
The Sixth Circuit addressed somewhat analogous fats in Doe v. Miami Univ., 882 F.3d
579, 592 (6th Cir. 2018), though the allegations in Miami University were not nearly as
demonstrative of gender bias. In that case the Sixth Circuit found that there was “articulable
doubt” about the outcome of a proceeding based on a hearing panel’s failure to explain how it
resolved inconsistencies and due to the possible application of an erroneous standard of consent.
Id. at 592-93. In Miami University, the plaintiff did not allege anything like the procedural
irregularities in this case. Id. The Sixth Circuit has recently and repeatedly held that cross-
which the credibility of the complainant is at issue. Doe v. Baum, 903 F.3d 575, 581 (6th Cir.
2018). Cross-examination is "the greatest legal engine ever invented" for uncovering the
truth. Doe v. Univ. of Cincinnati, 872 F.3d 393, 401-02 (6th Cir. 2017) (citation omitted). “Not
only does cross-examination allow the accused to identify inconsistencies in the other side's
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story, but it also gives the fact-finder an opportunity to assess a witness's demeanor and
determine who can be trusted.” Id. “If a university is faced with competing narratives about
potential misconduct, the administration must facilitate some form of cross-examination in order
Here, Plaintiff’s cited irregularities far surpass those set forth in Doe v. Baum, Doe v.
Univ. of Cincinnati, or Doe v. Miami University. In Doe v. University of Cincinnati, the absence
of cross-examination was the only procedural irregularity. Univ. of Cincinnati, 872 F.3d at 401-
02. The Sixth Circuit considered that sufficient to render the proceeding fundamentally flawed.
Id. In Doe v. Baum, the complainant testified at the Title IX hearing but was not subject to cross-
examination. The university, in that case, argued that their decision was supported by other
evidence beyond the complainant’s testimony. Baum, 903 F.3d at 581. The Sixth Circuit held
that the proceeding was flawed based solely on the lack of cross-examination despite the support
of other evidence. Id. In Doe v. Miami University, the plaintiff merely alleged that the
“articulable doubt” arose from a misstatement as to the standard of consent and the fact that the
hearing panel did not explain how it resolved two conflicting statements made by the
In the case at bar Plaintiff sets forth far more. Not only was Plaintiff denied cross-
examination, the alleged victim refused to participate in the hearing. (Compl. ¶ 67.) She was not
subject to direct examination, let alone cross-examination. (Id.) She never identified Plaintiff or
his co-respondent as the perpetrators. (Compl. ¶ 88.) The sole identification was based on a
gesture made while her roommates questioned her while intoxicated to the point of being blacked
out and under the influence of cocaine and marijuana. (Compl. ¶ 25-29.) Plaintiff was faced with
last-minute medical evidence that, while inconclusive, was presented to the hearing panel as
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though it were conclusive. (Compl. ¶ 75-76.) He had no opportunity to review it or rebut it. (Id.)
However, the most fundamental procedural flaw was that Rhodes failed to charge E.M., a female
student that C.S. accused of participating in the alleged assault. (Compl. ¶ 77-89.) The failure to
charge E.M. rendered the proceedings fundamentally unfair as not all of the accused individuals
were before the panel on equal terms. (Id.) In fact, E.M. was never questioned about the
allegations against her during the investigation, and the hearing panel avoided questioning her
about it despite numerous references in the investigation report to E.M.’s alleged involvement.
(Compl. ¶¶ 58, 78-89.) Plaintiff can do far more than cast “articulable doubt” on the proceedings.
Plaintiff can conclusively demonstrate that no reliable evidence of his guilt was ever put before
After demonstrating that the proceedings were flawed, Plaintiff must show "a
'particularized . . . causal connection between the flawed outcome and gender bias.'" Doe v.
Miami Univ., 882 F.3d 579, 593 (6th Cir. 2018). In Miami University, the plaintiff relied
statistical evidence that showed that the university enforced its policies in a gender-biased
fashion. The Miami University plaintiff further relied on evidence that external pressure
impacted the manner in which the university enforced its Title IX policy. Both of these factors
are present and adequately pled in this case, but Plaintiff can do far more. Plaintiff has alleged
that within this specific proceeding he and his co-respondent, Z.W., were treated differently than
the accused female student, E.M. despite the statements in the Title IX investigation report that
“[E.M.] is bad, and CS said [E.M.] is the one that told them to do it and that it wouldn’t have
happened without her.” (Compl. ¶¶ 30, 58, 78-89.) C.S. also reported a specific recollection of
E.M. being present while the alleged rape was happening, though she reported no recollection of
either male respondent being present. (Compl. ¶¶ 56,.) E.M. merely stated that the alleged
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victim’s report was not accurate and avoided being charged. (Compl. ¶¶ 58.) E.M. was not
questioned about her involvement by the investigator or hearing panel. (Id.) Put simply, the panel
was faced with two male respondents, and E.M. was presented merely as a witness who didn’t
see anything. Had the panel been presented with three respondents of both genders, they might
There is also evidence that Defendant was under pressure to hold male students
accountable for sexual assaults on campus. An attorney preparing a lawsuit against the SAE
fraternity on behalf of C.S. attended Plaintiff’s Title IX hearing holding a file folder marked
“C.S. v. SAE.” (Compl. ¶ 68). Plaintiff has also pled that an organization called “Culture of
Consent” began to pressure Defendant to hold male students responsible for sexual misconduct.
(Compl. ¶¶ 48-53, 60-61.) Culture of Consent held protests and directed social media posts at the
administration accusing them of covering up sexual assaults by male students, accusing the
school of treating male football players favorably in sexual assault inquiries, and pressuring the
school to hold fraternities to account for alleged sexual assaults by male students. (Compl. ¶¶ 48-
61). Plaintiff has also plead, upon information and belief, that Defendant has a pattern or practice
of bringing sexual misconduct cases against males substantially more often than females. It
rarely initiates Title IX/sexual misconduct investigations into female students based on third-
party reports, such as from the local police department as happened here. (Compl. ¶¶ 100.) This
pattern or practice constitutes clear gender discrimination leading to the erroneous outcome of
Plaintiff has alleged ten (10) distinct procedural irregularities, any one of which standing
alone would meet the standard of “articulable doubt” presented in University of Miami. Plaintiff
can show three different categories of evidence linking the litany of procedural defects to gender
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bias, including a direct, facial instance of gender bias within this specific proceeding. This Court
should find that Plaintiff has a strong likelihood of success on his “erroneous outcome” claim.
2. Selective Enforcement
In this particular case, the “erroneous outcome” and “selective enforcement” claims
dovetail. As outlined above, Plaintiff alleges that Rhodes failure to charge or investigate a female
student named by the alleged victim as an aggressor amounts to selective enforcement of its Title
IX policy. “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.” Doe v. Cummins, 662 F. App'x 437, 452 (6th Cir. 2016). Plaintiff meets
this standard.
The Title IX investigative report, which is the only “testimony” from the alleged victim
that was before the Rhodes’ Sexual Misconduct Board in Plaintiff’s disciplinary proceeding,
states that the victim named a female, E.M., as an aggressor in her alleged assault. (Compl. ¶¶
27-28). In fact, the alleged victim does not even recall that Plaintiff and his co-respondent were
present when the alleged assault occurred, but she stated that she specifically recalled E.M. being
present. (Compl. ¶¶ 25-28, 40-41). However, Rhodes’ did not charge, discipline or even
investigate E.M. (Compl. ¶ 86). In truth, Rhodes’ investigated only the male students who were
in attendance at the SAE party where the alleged victim was attacked. Rhodes held two male
students responsible for an alleged sexual assault when at least one of the perpetrators named by
the victim was female. Plaintiff asserts that it is difficult to imagine a more clear-cut case of in
which a “similarly-situated member of the opposite sex was treated more favorably than the
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plaintiff,” and no other distinction exists.1 Plaintiff has set forth facts sufficient to demonstrate
that Rhodes’ has selectively enforced its Title IX policy against male students
B. Irreparable Injury
Plaintiff will suffer irreparable injury unless this Court issues a preliminary injunction. A
plaintiff has "the burden of establishing a clear case of irreparable injury and of convincing the
Court that the balance of injury favor[s] the granting of the injunction." Bd. of Educ. v. U.S.
Dep't of Educ., 208 F. Supp. 3d 850, 860 (S.D. Ohio 2016). Federal courts shave held that “[t]he
loss of educational and career opportunities . . . is not readily compensable in money damages. . .
.” Ritter v. Oklahoma, 2016 U.S. Dist. LEXIS 60193, *8 (W.D. Okla. May 6, 2016).
Additionally, “damage to one's reputation is a harm that cannot be remedied by a later award of
money damages, the threat of reputational harm may form the basis for preliminary injunctive
relief.” Kroupa v. Nielsen, 731 F.3d 813, 820 (8th Cir. 2013). The Sixth Circuit has specifically
held that damage to reputation is not compensable by money damages. United States v. Miami
Univ., 294 F.3d 797, 819 (6th Cir. 2002). The Sixth Circuit, in a case involving sexual
misconduct has noted that: “Being labeled a sex offender by a university has both an immediate
and lasting impact on a student's life.” Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018).
Courts in this circuit have ruled that a student's suspension from school can
cause irreparable harm. Marshall v. Ohio Univ., U.S. Dist. LEXIS 31272, at *24-25 (S.D. Ohio
Mar. 13, 2015) (citing: Boman v. Bluestem Unified Sch. Dist., 2000 U.S. Dist. LEXIS 5389 (D.
Kan. Jan. 28, 2000); Bhandari v. Trustees of Columbia Univ. in N.Y., 2000 U.S. Dist. LEXIS
3720, at *15—16 (S.D.N.Y. 2000)). The Marshall Court found that the plaintiff’s “suspension
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C.S. is extremely vague about her alleged assault. She claims to have been anally penetrated, but she has never
stated what she was penetrated with. To the extent that the male accused could have penetrated C.S., a female
participant could certainly have penetrated C.S. with an object. No evidence was presented that semen was collected
from C.S. body or clothing. C.S. does not claim to recall anything about the alleged assault other than that she was
penetrated anally and that E.M. was present.
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effectively denied him the benefit of the work already performed in the classes this semester and
delayed the completion of his degree.” Marshall, U.S. Dist. LEXIS 31272, at *24-25. The
Marshall Court also noted that: “Plaintiff will forever have this disciplinary action on his
academic record, which may impact his ability to enroll at another institution, or affect his future
career possibilities.”
The harm in this case is identical to the harm in the Marshall case. If Plaintiff is expelled just
prior to graduation, and the degree for which he has worked diligently for four years is not
conferred on him, and he has been wrongfully expelled, the harm is irreparable. His career
opportunities will be diminished and his four years of undergraduate education will be for
naught. Further, Plaintiff will be branded as a sexual predator, and he will functionally be
required to disclose this to any other academic institution to which he applies, thereby limiting
his academic possibilities. The harm to Plaintiff’s reputation and his academic standing would
The potential harm a wrongful expulsion inflicts on Plaintiff well outweighs any harm to
another. In fact, permitting Plaintiff to complete his semester and to graduate causes harm to no
one. The alleged victim is not a participant in Rhodes’ Title IX process, did not request interim
measures, did not testify at Plaintiff’s hearing, and did not file a Title IX complaint against
Plaintiff or anyone else. Allowing Plaintiff to complete his semester and provisionally graduate
as scheduled pending the resolution of the complaint being brought simultaneously with this
application will not bring harm to Rhodes, or even to the alleged victim. However, ample,
heretofore discussed irreparable harm will occur if Plaintiff is wrongfully expelled and denied a
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There simply exists no adverse public interest which would prevent the issuance of an
injunction. It is “always in the public’s interest that a student be treated fairly.” Ritter, 2016 U.S.
Dist LEXIS at *8. All universities must ensure that the rights afforded to students under Title IX
are protected, including the rights of male students accused of sexual assaults. To expel a student
for sexual misconduct is to take a final step from which he or she is unlikely to recover. It is in
the public interest to ensure that any such action is taken without bias or error.
Federal courts construe Federal Rule of Civil Procedure 65 to permit a trial court to
require no bond where the nonmoving party fails to demonstrate any injury. “[U]nder Fed. R.
Civ. Pro. 65(c) the amount of security given by an applicant for an injunction is a matter for the
discretion of the trial court, which may in the exercise of that discretion even require no security
at all.” USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 100 (6th Cir. 1982) (internal
citations omitted). “The purpose of a security deposit in this context is to protect the party
injured from damages occasioned by the injunction.” Fed. R. Civ. Pro. 65(c); USACO Coal Co.,
689 F.2d at 100. Here, Defendant will suffer no financial injury as a result of the imposition of
the injunction(s) being requested. Plaintiff is not requesting that Defendant take any
extraordinary actions or incur any expenses it would not have to bear if it had not issued the
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III. Conclusion
When balancing the immediate and irreparable harm to Plaintiff caused by his expulsion
against Defendant’s, the Court should find that the Plaintiff’s needs far outweigh any interest of
the Defendant. If Plaintiff is not awarded the relief sought, his very future educational and career
1. That Rhodes be enjoined from enforcing its decision to expel Plaintiff pending the
Rhodes be enjoined from refusing to confer his degree in May 2019 as scheduled,
with the caveat that the degree may be rescinded should Plaintiff prove unsuccessful
in this suit.
Respectfully submitted,
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