RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0200p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN DOE,

Plaintiff-Appellant,

v.

DAVID H. BAUM; SUSAN PRITZEL; TABITHA BENTLEY;

E. ROYSTER HARPER; NADIA BAZZY; ERIK WESSEL;

UNIVERSITY OF MICHIGAN; BOARD OF REGENTS OF THE 

UNIVERSITY OF MICHIGAN,

Defendants-Appellees.

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No. 17-2213

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:16-cv-13174—David M. Lawson, District Judge.

Argued: August 1, 2018

Decided and Filed: September 7, 2018

Before: GILMAN, GIBBONS, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: Deborah L. Gordon, DEBORAH GORDON LAW, Bloomfield Hills, Michigan, for 

Appellant. David W. DeBruin, JENNER & BLOCK, LLP, Washington, D.C., for Appellees. 

ON BRIEF: Deborah L. Gordon, Irina L. Vaynerman, DEBORAH GORDON LAW, 

Bloomfield Hills, Michigan, for Appellant. David W. DeBruin, JENNER & BLOCK, LLP, 

Washington, D.C., Brian M. Schwartz, MILLER, CANFIELD, PADDOCK, AND STONE, 

P.L.C., Detroit, Michigan, for Appellees.

THAPAR, J., delivered the opinion of the court, in which GIBBONS, J., joined, and 

GILMAN, J., joined in part. GIBBONS, J. (pg. 17), delivered a separate concurrence. 

GILMAN, J. (pp. 18–25), delivered a separate opinion concurring in part and dissenting in part.

>
No. 17-2213 Doe v. Baum, et al. Page 2

_________________

OPINION

_________________

THAPAR, Circuit Judge. Thirteen years ago, this court suggested that cross-examination 

may be required in school disciplinary proceedings where the case hinged on a question of 

credibility. Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 641 (6th Cir. 2005). Just last year, we 

encountered the credibility contest that we contemplated in Flaim and confirmed that when 

credibility is at issue, the Due Process Clause mandates that a university provide accused 

students a hearing with the opportunity to conduct cross-examination. Doe v. Univ. of 

Cincinnati, 872 F.3d 393, 401–02 (6th Cir. 2017). Today, we reiterate that holding once again: 

if a public university has to choose between competing narratives to resolve a case, the university 

must give the accused student or his agent an opportunity to cross-examine the accuser and 

adverse witnesses in the presence of a neutral fact-finder. Because the University of Michigan 

failed to comply with this rule, we reverse.

I.

John Doe and Jane Roe were students at the University of Michigan. Halfway through 

Roe’s freshman and Doe’s junior year, the two crossed paths at a “Risky Business” themed 

fraternity party. While there, they had a drink, danced, and eventually had sex. Two days later, 

Roe filed a sexual misconduct complaint with the university claiming that she was too drunk to 

consent. And since having sex with an incapacitated person (unsurprisingly) violates university 

policy, the administration immediately launched an investigation. Over the course of three 

months, the school’s investigator collected evidence and interviewed Roe, Doe, and twenty-three 

other witnesses. Two stories emerged. 

First, Doe told the investigator that Roe did not appear drunk and that she was an active 

participant in their sexual encounter. According to him, the night went something like this: after 

he and Roe had a drink, danced, and kissed at the party, the two decided to go upstairs to his 

bedroom. Once there, they kissed “vigorous[ly]” and eventually made their way onto his bed. 

R. 16, Pg. ID 332. After they jointly removed their clothing, he asked Roe if she wanted to have 
No. 17-2213 Doe v. Baum, et al. Page 3

sex. She said, “Yeah,” and the two proceeded to have intercourse followed by oral sex. Id. at 

Pg. ID 333–34. When they were done, they cuddled until Roe became sick and vomited into a 

trash can by Doe’s bed. Doe rubbed her back for five or so minutes and then left to use the 

bathroom and talk with friends. By the time he returned, Roe was crying and another female 

student was helping her gather her things. He asked Roe if she was okay, but Roe’s new 

companion told him to “[g]o away” and the two women walked out of the room. Id. at Pg. ID 

335. At the time, he assumed that Roe was upset because he had left her alone after they had 

sex. He asserted that he had no reason to believe that she was drunk or that Roe thought any of 

his sexual advances were unwelcome. 

Roe remembered the night differently. According to her, she was drunk and unaware of 

her surroundings when she and Doe went to his room. While kissing near the doorway, she told 

Doe “no sex” before she “flopped” onto his bed. Id. at Pg. ID 325–26. Without asking, Doe 

undressed her and had intercourse with her while she “laid there in a hazy state of black out.” Id.

at Pg. ID 326. And at some point, she passed out and woke up to Doe having oral sex with her. 

Afterwards, she felt a “spinning sensation” and fell back onto the bed. Id. at Pg. ID 327. Doe 

asked her if she was okay, and she told him that she was not. So Doe placed a trash can by the 

side of his bed and left the room. She proceeded to vomit into the trash can. Afterward, she 

attempted to find her clothes but could not get her bearings. Feeling a sense of “desperation and 

defeat,” she tried to catch another female student’s attention by making “vomit sounds.” Id. It 

worked, and the female student (“Witness 2”) helped Roe find her clothes, put them on, and get 

back to her dorm. 

If Doe’s and Roe’s stories seem at odds, the twenty-three other witnesses did not offer 

much clarification. Almost all of the male witnesses corroborated Doe’s story, and all of the 

female witnesses corroborated Roe’s. For example, Doe’s roommate said that Roe “didn’t seem 

like she was hammered or that drunk,” although he stated that he did not “want to speculate” 

about whether she had had some alcohol because he did not talk to her directly or “really interact 

with [her]” much. Id. at Pg. ID 339. Yet he mentioned that in his two interactions with her, he 

did not smell alcohol on her. Id. Doe’s roommate further alleged that Roe and Witness 2 were 

just “rallying against a fraternity guy.” Id. at Pg. ID 339–41. Another member of Doe’s 
No. 17-2213 Doe v. Baum, et al. Page 4

fraternity told the investigator that he saw Doe and Roe “making out” on the dance floor and 

there was no reason to suspect that either of them had too much to drink. Id. at Pg. ID 347. And 

two others stated that Roe did not appear drunk when she left Doe’s room at the end of the night, 

although they indicated they had limited observations of Roe. 

Roe’s sorority sisters, on the other hand, reported that Roe seemed “more than a little 

buzzed” at the party because her eyes were “open but unfocused” and she “trail[ed] off at the end 

of sentences.” Id. at Pg. ID 345–46. The female student who helped Roe leave the party told the 

investigator that she found Roe crying and “very drunk” in Doe’s bed. Id. at Pg. ID 342–43. 

And two other friends provided that when Roe returned to her dorm that night, she sobbed on the 

floor of her room and said “she thought she’d been raped.” Id. at Pg. ID 352. 

Given the students’ conflicting statements, the investigator concluded that the evidence 

supporting a finding of sexual misconduct was not more convincing than the evidence offered in 

opposition to it. The investigator did note, however, that Witness 2 might have been a more 

credible witness because she had no prior connection to Doe, Roe, or their respective Greek 

organizations. But because Witness 2 only observed Roe after the sexual encounter had ended, 

the investigator concluded that she could not address the relevant question—Roe’s level of 

intoxication during the encounter or what signs of intoxication she manifested at that time. So 

after three months of thorough fact-finding, the investigator was unable to say that Roe exhibited 

outward signs of incapacitation that Doe would have noticed before initiating sexual activity. 

Accordingly, the investigator recommended that the administration rule in Doe’s favor and close 

the case. 

Roe appealed. She argued that the evidence did not support the investigator’s findings 

and asked the university to reconsider. The case went up to the university’s Appeals Board, and 

a three-member panel reviewed the investigator’s report. After two closed sessions (without 

considering new evidence or interviewing any students), the Board reversed. Although the 

Board found that the investigation was fair and thorough, it thought the investigator was wrong 

to conclude that the evidence was in equipoise. According to the Board, Roe’s description of 

events was “more credible” than Doe’s, and Roe’s witnesses were more persuasive. R. 6-5, Pg. 

ID 274–75. As a result, the university set the investigator’s recommendation aside and 
No. 17-2213 Doe v. Baum, et al. Page 5

proceeded to the sanction phase. Facing the possibility of expulsion, Doe agreed to withdraw 

from the university. He was 13.5 credits short of graduating. 

Since then, Doe filed a lawsuit claiming that the university’s disciplinary proceedings 

violated the Due Process Clause and Title IX. He argues that because the university’s decision 

turned on a credibility finding, the school was required to give him a hearing with an opportunity 

to cross-examine Roe and adverse witnesses. He also maintains that the Board violated Title IX 

by discriminating against him on account of his gender. The university filed a motion to dismiss, 

which the district court granted in full. Doe now appeals, and we review de novo. Kottmyer v. 

Maas, 436 F.3d 684, 688 (6th Cir. 2006).

II.

To survive a motion to dismiss, a complaint must provide “a short and plain statement of 

the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff 

shows that he is entitled to relief by “plausibly suggesting” that he can meet the elements of his 

claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). And a plaintiff’s suggestion is 

plausible when it contains enough factual content that the court can reasonably infer that the 

defendant is liable. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Legal conclusions, “formulaic 

recitation[s]” of the claim’s elements, and “naked assertion[s]” of liability are all insufficient. Id.

(second alteration in original) (quoting Twombly, 550 U.S. at 557).

When evaluating a complaint’s sufficiency, courts use a three-step process. First, the 

court must accept all of the plaintiff’s factual allegations as true. Logsdon v. Hains, 492 F.3d 

334, 340 (6th Cir. 2007). Second, the court must draw all reasonable inferences in the plaintiff’s 

favor. Id. And third, the court must take all of those facts and inferences and determine whether 

they plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679. If it is at all plausible 

(beyond a wing and a prayer) that a plaintiff would succeed if he proved everything in his 

complaint, the case proceeds. 
No. 17-2213 Doe v. Baum, et al. Page 6

III.

Doe first argues that the university violated his due process rights during his disciplinary 

proceedings. He claims that because the university’s decision ultimately turned on a credibility 

determination, the school was required to give him a hearing with an opportunity to crossexamine Roe and other adverse witnesses. The district court dismissed this claim, finding that 

even if credibility was at issue, the university’s failure to allow for cross-examination was 

“immaterial” in Doe’s case. R. 74, Pg. ID 2871. We disagree. 

When it comes to due process, the “opportunity to be heard” is the constitutional 

minimum. Grannis v. Ordean, 234 U.S. 385, 394 (1914). But determining what being “heard” 

looks like in each particular case is a harder question. The Supreme Court has declined to set out 

a universal rule and instead instructs lower courts to consider the parties’ competing interests. 

See Mathews v. Eldridge, 424 U.S. 319, 335 (1976); Goss v. Lopez, 419 U.S. 565, 579 (1975). 

So, consistent with this command, our circuit has made two things clear: (1) if a student is 

accused of misconduct, the university must hold some sort of hearing before imposing a sanction 

as serious as expulsion or suspension, and (2) when the university’s determination turns on the 

credibility of the accuser, the accused, or witnesses, that hearing must include an opportunity for 

cross-examination. Univ. of Cincinnati, 872 F.3d at 399–402; Flaim, 418 F.3d at 641. 

Due process requires cross-examination in circumstances like these because it is “the 

greatest legal engine ever invented” for uncovering the truth. Univ. of Cincinnati, 872 F.3d at 

401–02 (citation omitted).1 Not only does cross-examination allow the accused to identify 

inconsistencies in the other side’s story, but it also gives the fact-finder an opportunity to assess a 

witness’s demeanor and determine who can be trusted. Id. So if a university is faced with 

competing narratives about potential misconduct, the administration must facilitate some form of 

cross-examination in order to satisfy due process. Id. at 402. 

 

1Even popular culture recognizes the importance of cross-examination. See A Few Good Men (Castle Rock 

Entertainment 1992) (depicting one of the most memorable examples of cross-examination in American cinema); 

My Cousin Vinny (Palo Vista Productions et al. 1992) (demonstrating that cross-examination can both undermine 

and establish the credibility of witnesses).
No. 17-2213 Doe v. Baum, et al. Page 7

Doe claims that the university ran afoul of this well-established rule in his disciplinary 

proceedings. And the pleadings in his case suggest that he is right. The university’s decision 

rested on a credibility determination: the Board found Doe responsible after concluding that Roe 

and her witnesses were “more credible” than Doe and his. R. 6-5, Pg. ID 274–75. Nevertheless, 

Doe never received an opportunity to cross-examine Roe or her witnesses—not before the 

investigator, and not before the Board. As a result, there is a significant risk that the university 

erroneously deprived Doe of his protected interests.2 See Mathews, 424 U.S. at 335. 

This risk is all the more troubling considering the significance of Doe’s interests and the 

minimal burden that the university would bear by allowing cross-examination in Doe’s case. See 

id. at 334–35. Time and again, this circuit has reiterated that students have a substantial interest 

at stake when it comes to school disciplinary hearings for sexual misconduct. Doe v. Miami 

Univ., 882 F.3d 579, 600 (6th Cir. 2018); Univ. of Cincinnati, 872 F.3d at 400; Doe v. Cummins, 

662 F. App’x 437, 446 (6th Cir. 2016). Being labeled a sex offender by a university has both an 

immediate and lasting impact on a student’s life. Miami Univ., 882 F.3d at 600. The student 

may be forced to withdraw from his classes and move out of his university housing. Id. His 

personal relationships might suffer. See id. And he could face difficulty obtaining educational 

and employment opportunities down the road, especially if he is expelled. Id. 

In contrast, providing Doe a hearing with the opportunity for cross-examination would 

have cost the university very little. As it turns out, the university already provides for a hearing 

with cross-examination in all misconduct cases other than those involving sexual assault. So the 

administration already has all the resources it needs to facilitate cross-examination and knows 

how to oversee the process. See Univ. of Cincinnati, 872 F.3d at 406 (noting that a university 

does not bear a significant administrative burden when it already has procedures in place to 

accommodate cross-examination). And, importantly, the university identifies no substantial 

burden that would be imposed on it if it were required to provide an opportunity for crossexamination in this context. 

 

2Contrary to the concurrence/dissent’s characterization, we apply the Mathews factors herein. We consider 

the seriousness of Doe’s deprivation, the burden on the university, and the risk of an erroneous outcome in a process 

without live cross-examination. See infra Part III; see also Mathews, 424 U.S. at 335.
No. 17-2213 Doe v. Baum, et al. Page 8

Still, the university offers four reasons why Doe’s claim is not as plausible as it seems. 

None do the trick. First, the university contends that even if Doe did not have a formal 

opportunity to question Roe, he was permitted to review her statement and submit a response 

identifying inconsistencies for the investigator. As such, the university claims that there would 

have been no added benefit to cross-examination. But this circuit has already flatly rejected that 

argument. In University of Cincinnati, we explained that an accused’s ability “to draw attention 

to alleged inconsistencies” in the accuser’s statements does not render cross-examination futile. 

Id. at 401–02. That conclusion applies equally here, and we see no reason to doubt its wisdom. 

Cross-examination is essential in cases like Doe’s because it does more than uncover 

inconsistencies—it “takes aim at credibility like no other procedural device.” Id. Without the 

back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test 

her memory, intelligence, or potential ulterior motives. Id. at 402. Nor can the fact-finder 

observe the witness’s demeanor under that questioning. Id. For that reason, written statements 

cannot substitute for cross-examination. See Brutus Essay XIII, in The Anti-Federalist 180

(Herbert J. Storing ed., 1985) (“It is of great importance in the distribution of justice that 

witnesses should be examined face to face, that the parties should have the fairest opportunity of 

cross-examining them in order to bring out the whole truth; there is something in the manner in 

which a witness delivers his testimony which cannot be committed to paper, and which yet very 

frequently gives a complexion to his evidence, very different from what it would bear if 

committed to writing . . . .”). Instead, the university must allow for some form of live

questioning in front of the fact-finder. See Univ. of Cincinnati, 872 F.3d at 402–03, 406 (noting 

that this requirement can be facilitated through modern technology, including, for example, by 

allowing a witness to be questioned via Skype “without physical presence”). 

That is not to say, however, that the accused student always has a right to personally

confront his accuser and other witnesses. See Miami Univ., 882 F.3d at 600 (noting that “even in 

the face of a sexual-assault accusation,” the protections afforded to an accused “need not reach 

the same level . . . that would be present in a criminal prosecution” (quoting Univ. of Cincinnati, 

872 F.3d at 400)). Universities have a legitimate interest in avoiding procedures that may 

subject an alleged victim to further harm or harassment. And in sexual misconduct cases, 
No. 17-2213 Doe v. Baum, et al. Page 9

allowing the accused to cross-examine the accuser may do just that. See Univ. of Cincinnati, 

872 F.3d at 403. But in circumstances like these, the answer is not to deny cross-examination 

altogether. Instead, the university could allow the accused student’s agent to conduct crossexamination on his behalf. After all, an individual aligned with the accused student can 

accomplish the benefits of cross-examination—its adversarial nature and the opportunity for 

follow-up—without subjecting the accuser to the emotional trauma of directly confronting her 

alleged attacker. Cf. Maryland v. Craig, 497 U.S. 836, 857 (1990) (holding that where forcing 

the alleged victim to testify in the physical presence of the defendant may result in trauma, the 

court could use an alternative procedure that “ensures the reliability of the evidence by 

subjecting it to rigorous adversarial testing” through “full cross-examination” and ensuring that 

the alleged victim could be “observed by the judge, jury, and defendant as they testified”). The 

university’s first argument is therefore unavailing.3 

Second, the university contends that Doe is not entitled to cross-examination because the 

university’s decision did not depend entirely on a credibility contest between Roe and Doe. For 

support, the university brings our attention back to University of Cincinnati, where we 

emphasized the exclusively “he said/she said” nature of the investigation at issue in that case. 

872 F.3d at 395, 402. But the university reads far too much into that point. When we 

emphasized the exclusively “he said/she said” nature of the University of Cincinnati dispute, we 

were not implying that cross-examination would be less important in cases where the school’s 

finding rested on the credibility of several witnesses instead of one or two. Rather, we merely 

distinguished that case from others holding that cross-examination was unnecessary when the 

university’s decision did not rely on any testimonial evidence at all. Id. at 401, 405 

(distinguishing Plummer v. Houston, 860 F.3d 767, 775–76 (5th Cir. 2017), which held that 

cross-examination was unnecessary when conduct depicted in videos and photos was sufficient 

to sustain a finding of misconduct without resorting to testimonial evidence); see also Flaim, 

418 F.3d at 641. Accordingly, University of Cincinnati does not stand for the proposition that 

 

3The concurrence/dissent poses a number of thoughtful questions about what universities need to do going 

forward. None of these, however, are currently before us. Doe asks for an opportunity for a hearing with live crossexamination. Due process requires as much. If the university is worried about the accused confronting the accuser, 

it could consider other procedures such as a witness screen. But if the university does not want the accused to crossexamine the accuser under any scenario, then it must allow a representative to do so. 
No. 17-2213 Doe v. Baum, et al. Page 10

cross-examination is required only if the university’s decision depends solely on the accuser’s 

statement. Instead, University of Cincinnati is consistent with our conclusion today: if 

credibility is in dispute and material to the outcome, due process requires cross-examination. See 

872 F.3d at 406 (recognizing that credibility disputes might be more common in sexual 

misconduct proceedings than other university disciplinary investigations).

Third, the university claims that cross-examination was unnecessary in Doe’s case 

because he admitted to the misconduct in a police interview the day after the incident in 

question. Here, the university is right about the law but wrong about the facts. This court has 

long held that cross-examination is unnecessary if a student admits to engaging in misconduct. 

Flaim, 418 F.3d at 641. After all, there is little to be gained by subjecting witnesses to 

adversarial questioning when the accused student has already confessed. But at the motion-todismiss stage, we cannot conclude that Doe confessed to the misconduct in this case. To see 

why, a closer look at the police report is instructive.

During the police interview, a detective asked Doe to describe the previous night’s sexual 

encounter. When doing so, Doe told the detective that Roe performed oral sex on him before 

they engaged in intercourse, and that when the pair began to have intercourse, Roe was on top. 

As it turns out, this story was different than the one Roe had reported to the detective earlier that 

day. According to the detective, Roe claimed that she told Doe “no sex” before making her way 

to the bed, and that she performed oral sex on Doe after the pair had intercourse. The detective 

thus relayed Roe’s version of the story to Doe, and Doe immediately conceded that Roe was 

right and that he “got it all wrong.” R. 16, Pg. ID 356. Even so, however, Doe reiterated that 

(1) he never heard Roe say “no sex,” (2) he “didn’t rape” Roe, and (3) he believed their sexual 

encounter was consensual. Id.

Because the district court made this report part of the pleadings, we must read it in the 

light most favorable to Doe.4 See Logsdon, 492 F.3d at 340. When we do, we cannot conclude 

 

4The district court considered the administrative record (which included the police report) when deciding 

the motion to dismiss, even though it was not attached to the complaint, because it was referenced in the complaint 

and integral to Doe’s claims. Since neither party objected then or in their appellate briefs, we, like the district court, 

consider the administrative record as part of the pleadings.
No. 17-2213 Doe v. Baum, et al. Page 11

that Doe admitted to any of the critical facts in his case—i.e., that Roe was too drunk to consent 

to sex, and that he knew or should have known as much. For one, we would have to ignore 

Doe’s claim that the sex was “consensual.” R. 16, Pg. ID 356. And for another, because Doe 

did not mention anything about Roe’s level of intoxication in his own account of the night’s 

events, his concession that Roe was correct and that he “got it all wrong” appears to relate only 

to the points on which the detective said their two accounts actually diverged—the order of the 

sexual acts. See id., Pg. ID 354–56. This alleged confession thus does not sufficiently rebut the 

plausibility of Doe’s claim. 

The university offers one last ditch effort to avoid reversal. It points out that although 

Doe did not have an opportunity to cross-examine Roe in the university disciplinary process, he 

recently deposed her in state civil proceedings. According to the university, because Roe’s 

deposition is consistent with what she told the investigator, Doe’s inability to cross-examine her 

during the disciplinary proceedings did not cause any prejudice. To start, Doe disputes whether 

Roe’s deposition is, in fact, consistent with her earlier statements in the disciplinary process. But 

more importantly, Roe’s later deposition has no bearing on this case. As discussed above, the 

value of cross-examination is tied to the fact-finder’s ability to assess the witness’s demeanor. 

Univ. of Cincinnati, 872 F.3d at 402. So just as a written response insufficiently substitutes for 

cross-examination, so too does a written deposition transcript. And, critically, cross-examination 

for the sake of cross-examination is not what Doe seeks. Rather, Doe seeks cross-examination as 

part of the credibility assessment by the university. That a state court later allowed for crossexamination as a part of its fact-finding after the university had already made its decision is 

beside the point. If anything, the fact that the state court allowed cross-examination only goes to 

show just how far removed the university’s fact-finding procedures are from the tried and true 

methods invoked by courts. See id. at 404–05 (noting that while classrooms are not courtrooms, 

at the very least a circumscribed version of cross-examination is required (citing Cummins, 

662 F. App’x at 448)). 
No. 17-2213 Doe v. Baum, et al. Page 12

In sum, accepting all of Doe’s factual allegations as true and drawing all reasonable 

inferences in his favor, he has raised a plausible claim for relief under the Due Process Clause. 

We thus reverse the district court’s decision to dismiss his claim.5 

IV.

Doe also sued under Title IX, which prohibits federally-funded universities from 

discriminating against students on the basis of sex. 20 U.S.C. § 1681(a); Cannon v. Univ. of 

Chi., 441 U.S. 677, 717 (1979) (recognizing an implied private right of action under Title IX). 

He advances three theories of liability, claiming that the university (1) reached an erroneous 

outcome in his case because of his sex, (2) relied on archaic assumptions about the sexes when 

rendering a decision, and (3) exhibited deliberate indifference to sex discrimination in his 

disciplinary proceedings. 

Erroneous Outcome. A university violates Title IX when it reaches an erroneous 

outcome in a student’s disciplinary proceeding because of the student’s sex. See Miami Univ., 

882 F.3d at 592. To survive a motion to dismiss under the erroneous-outcome theory, a plaintiff 

must plead 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.” Id. (alteration in original) (quoting Cummins, 

662 F. App’x at 452). The district court held that Doe’s complaint failed to meet either element 

and dismissed his claim. We reverse. 

First, because Doe alleged that the university did not provide an opportunity for crossexamination even though credibility was at stake in his case, he has pled facts sufficient to cast 

some articulable doubt on the accuracy of the disciplinary proceeding’s outcome. See Yusuf v. 

Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994) (noting the “pleading burden in this regard is not 

heavy” and can be met by alleging “particular procedural flaws affecting the proof”); see also 

Univ. of Cincinnati, 872 F.3d at 401 (“Few procedures safeguard accuracy better than adversarial 

 

5We need not address Doe’s argument that the district court abused its discretion in denying his motion to 

reopen and file an amended complaint. We hold that Doe stated a claim under the Due Process Clause absent the 

new evidence he seeks to add to the complaint. Should Doe want to introduce that evidence later in this litigation, 

the district court will need to determine whether, and under what circumstances, it may be used. 
No. 17-2213 Doe v. Baum, et al. Page 13

questioning.”). Second, Doe has pointed to circumstances surrounding his disciplinary 

proceedings that, accepting all of his factual allegations as true and drawing all reasonable 

inferences in his favor, plausibly suggest the university acted with bias based on his sex. See 

Iqbal, 556 U.S. at 681–82. 

Around two years before Doe’s disciplinary proceeding, the federal government launched 

an investigation to determine whether the university’s process for responding to allegations of 

sexual misconduct discriminated against women. When news of the investigation broke, student 

groups and local media outlets sharply criticized the administration. The federal government’s 

investigation and the negative media reports continued for years, throughout the Board’s 

consideration of Doe’s case.

This public attention and the ongoing investigation put pressure on the university to 

prove that it took complaints of sexual misconduct seriously. The university stood to lose 

millions in federal aid if the Department found it non-compliant with Title IX. The university 

also knew that a female student had triggered the federal investigation and that the news media 

consistently highlighted the university’s poor response to female complainants. Of course, all of 

this external pressure alone is not enough to state a claim that the university acted with bias in 

this particular case. Rather, it provides a backdrop that, when combined with other 

circumstantial evidence of bias in Doe’s specific proceeding, gives rise to a plausible claim. See 

Twombly, 550 U.S. at 570.

Specifically, the Board credited exclusively female testimony (from Roe and her 

witnesses) and rejected all of the male testimony (from Doe and his witnesses). In doing so, the 

Board explained that Doe’s witnesses lacked credibility because “many of them were fraternity 

brothers of [Doe].” But the Board did not similarly note that several of Roe’s witnesses were her 

sorority sisters, nor did it note that they were female. This is all the more telling in that the initial 

investigator who actually interviewed all of these witnesses found in favor of Doe. The Board, 

by contrast, made all of these credibility findings on a cold record. 

When viewing this evidence in the light most favorable to Doe, as we must, one plausible 

explanation is that the Board discredited all males, including Doe, and credited all females, 
No. 17-2213 Doe v. Baum, et al. Page 14

including Roe, because of gender bias. And so this specific allegation of adjudicator bias, 

combined with the external pressure facing the university, makes Doe’s claim plausible. Indeed, 

other courts facing similar allegations have reached the same result. See, e.g., Miami Univ., 

882 F.3d at 594 (plaintiff’s complaint was sufficient where allegations included that the 

university faced “pressure from the government to combat vigorously sexual assault on college 

campuses and the severe potential punishment—loss of all federal funds—if it failed to 

comply”); Doe v. Columbia Univ., 831 F.3d 46, 56–57 (2d Cir. 2016) (plaintiff’s complaint 

pointing to student group criticism and university statements was sufficient to raise a plausible 

inference of bias under a “minimal plausible inference” standard); Doe v. Amherst Coll., 238 F. 

Supp. 3d 195, 223 (D. Mass. 2017) (plaintiff’s complaint was sufficient where allegations 

suggested that university was trying to “appease” a biased, student-led movement); Doe v. Lynn 

Univ., Inc., 235 F. Supp. 3d 1336, 1340–42 (S.D. Fla. 2017) (plaintiff’s complaint was sufficient 

where allegations suggested that university was reacting to “pressure from the public and the 

parents of female students” to punish males accused of sexual misconduct); Wells v. Xavier 

Univ., 7 F. Supp. 3d 746, 751 (S.D. Ohio 2014) (plaintiff’s complaint was sufficient where, taken 

together, his allegations suggested that university was “reacting against him[] as a male” in 

response to a Department of Education investigation). 

The dissent disagrees, taking a deep and thoughtful dive into the factual record to 

conclude that there is “no basis to reasonably infer” that Doe was a victim of gender 

discrimination. But when viewed against the backdrop of external pressure, the Board’s decision 

to discredit Doe’s fraternity brothers in part because they were fraternity brothers, while not 

holding Roe’s witnesses to the same standard, is basis enough at the motion-to-dismiss stage. 

Of course, anti-male bias is not the only plausible explanation for the university’s conduct, or 

even the most plausible. The university might have been unaffected by the federal investigation 

or the media’s criticism, and the significance of the Board’s decision to disregard Doe’s 

witnesses’ statements might be overblown. And as the dissent points out, the Board might have 

ruled the way it did because it believed Witness 2’s testimony was more credible. But 

alternative explanations are not fatal to Doe’s ability to survive a Rule 12(b)(6) motion to 

dismiss. See 16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 505 (6th Cir. 

2013) (“[T]he mere existence of more likely alternative explanations does not automatically 
No. 17-2213 Doe v. Baum, et al. Page 15

entitle a defendant to dismissal.”); Watson Carpet & Floor Covering, Inc. v. Mohawk Indus., 

Inc., 648 F.3d 452, 458 (6th Cir. 2011) (noting that there are often several plausible explanations 

for a defendant’s conduct, but “[f]erreting out the most likely reason for the defendants’ actions 

is not appropriate at the pleadings stage”). Doe’s allegations do not have to give rise to the most

plausible explanation—they just have to give rise to one of them. See Iqbal, 556 U.S. at 678 

(stating that there is no “probability requirement” at the pleading stage (quoting Twombly, 

550 U.S. at 556)). 

As this case proceeds and a record is developed, evidence might very well come to show 

that today’s inference is the least plausible of the bunch. Certain allegations that we must 

assume are true might be proven false. And with the benefit of exhibits, testimony, and crossexamination, a fact-finder may conclude that the inferences we were required to draw in Doe’s 

favor are simply untenable. But these possibilities cannot affect this court’s evaluation of Doe’s 

complaint. Our job is simply to ensure that Doe is not deprived of an opportunity to prove what 

he has alleged unless he would lose regardless. Because Doe has alleged facts that state a 

plausible claim for relief, we reverse the district court’s decision to dismiss his complaint. 

Whether he will ultimately succeed is a question for another day. 

Archaic Assumptions and Deliberate Indifference. Doe advances two more theories of 

Title IX liability. First, he maintains that the university relied on archaic assumptions about the 

sexes when resolving his case. And second, he claims that the university was deliberately 

indifferent to the Board’s sex discrimination. The problem for Doe, however, is that neither of 

these theories applies in the context of university disciplinary proceedings. 

Title IX plaintiffs use the archaic-assumptions theory to show that a school denied a 

student an equal opportunity to participate in an athletic program because of historical 

assumptions about boys’ and girls’ physical capabilities. See Mallory v. Ohio Univ., 76 F. App’x 

634, 638–39 (6th Cir. 2003). This court has never applied the theory outside of the athletic 

context, and, indeed, we have repeatedly refused litigants’ requests to do so. See Cummins, 

662 F. App’x at 451 n.9. Since Doe has not offered any reason why we should change course 

and take that step today, we affirm the district court’s decision to dismiss on this ground.
No. 17-2213 Doe v. Baum, et al. Page 16

The same problem dooms Doe’s deliberate-indifference theory. The deliberateindifference theory was designed for plaintiffs alleging sexual harassment. See Horner v. Ky. 

High Sch. Athletic Ass’n, 206 F.3d 685, 693 (6th Cir. 2000) (explaining that the deliberateindifference test arose from Supreme Court cases that “all address deliberate indifference to 

sexual harassment”). And though sexual harassment is a form of discrimination for purposes of 

Title IX, Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 649–50 (1999), we have held that to 

plead a Title IX deliberate-indifference claim, “the misconduct alleged must be sexual 

harassment,” not just a biased disciplinary process. Miami Univ., 882 F.3d at 591. Because Doe 

did not allege that actionable sexual harassment occurred during his disciplinary proceedings, he 

failed to state a claim under Title IX by way of deliberate indifference. 

V.

Accordingly, we REVERSE the district court’s dismissal of John Doe’s procedural due 

process claim insofar as it is based on the university’s failure to provide a hearing with the 

opportunity for cross-examination, we REVERSE the district court’s dismissal of John Doe’s 

Title IX claim insofar as it is based on erroneous outcome, and we REMAND for further 

proceedings consistent with this opinion.
No. 17-2213 Doe v. Baum, et al. Page 17

_________________

CONCURRENCE

_________________

JULIA SMITH GIBBONS, Circuit Judge, concurring. I write separately to make one 

discrete point with respect to the Title IX Claim. I agree that Doe has plausibly alleged a claim 

of gender bias. The inclusion of materials, other than the complaint, in the record makes a 

summary judgment standard tempting. The dissent avoids summary judgment language, but its 

analytical approach is analogous to the process by which a judge determines the existence of a 

genuine issue of material fact. Yet Doe is entitled to the full benefit of the standard for 

considering a motion to dismiss. Under that standard, my view is that Doe’s complaint survives.
No. 17-2213 Doe v. Baum, et al. Page 18

____________________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

____________________________________________________________

RONALD LEE GILMAN, Circuit Judge, concurring in part and dissenting in part.

I concur in the majority’s judgment (but not in its discussion) with regard to the disposition of 

Doe’s due process claim. As to Doe’s Title IX claim, I would affirm the judgment of the district 

court because of Doe’s failure to plausibly state a claim under Title IX.

I. Due process claim

Although I agree that Doe’s due process rights were violated when he was not permitted 

the opportunity to engage in any form of cross-examination of the witnesses against him, 

I disagree with the majority about the scope of cross-examination mandated by the United States 

Constitution in this context. I particularly believe that the majority has traveled “a bridge too 

far” in mandating that “if the university does not want the accused to cross examine the accuser 

under any scenario, then it must allow a representative to do so.” Maj. Op. at 9 n.3. 

This court has found that when witness credibility is at issue, the accused must have an 

opportunity for at least a “circumscribed form” of cross-examination where he or she is allowed 

to submit questions to the trier of fact, who will then directly pose those questions to the 

witnesses. Doe v. Cummins, 662 F. App’x 437, 446 (6th Cir. 2016). Cummins held that this 

requirement was met even where the trier of fact did not ask all the questions submitted or allow 

an opportunity to submit follow-up questions. Id. at 448; see also Doe v. Univ. of Cincinnati, 

872 F.3d 393, 406 (6th Cir. 2017) (emphasizing that the university has only a narrow obligation 

to provide the trier of fact with an opportunity “to evaluate an alleged victim’s credibility, not [to 

allow] the accused to physically confront his accuser,” and that “what matters” is that the trier of 

fact has the “ability to assess the demeanor of both the accused and his accuser”); Nash v. 

Auburn University, 812 F.2d 655, 664 (11th Cir. 1987) (finding that the due process rights of a 

student suspended for academic dishonesty were not violated where he was given the 

opportunity to submit questions to the trier of fact, who would then direct the questions to the 
No. 17-2213 Doe v. Baum, et al. Page 19

witnesses, and that the student did not have a right to “question the adverse witnesses in the 

usual, adversarial manner”).

Although Cummins is factually distinguishable because the two accused students faced 

only suspension and probation rather than expulsion, the majority cites no case that would 

support its expansion of Doe’s cross-examination rights beyond those set forth in Cummins. Nor 

does the majority explain why the Eldridge balancing factors would require the added protection 

of unfettered cross-examination by a representative whenever expulsion from a university is a 

potential penalty. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

And this expansion, in the absence of a focused and caselaw-supported analysis, leaves 

many questions unanswered. For example, who is the “representative” that will be allowed to 

question witnesses on the accused’s behalf? Is it an attorney? If so, then this expanded right of 

cross-examination conflicts with our caselaw making clear that a student has no constitutional 

right to have an attorney actively participate in his disciplinary hearings, except in very limited 

circumstances. See Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 640 (6th Cir. 2005) (noting that a 

student has no recognized right to have counsel participate in school disciplinary proceedings 

except, possibly, where the proceedings are complex or where the university itself utilizes an 

attorney); Cummins, 662 F. App’x at 448–49 (same); Gorman v. Univ. of Rhode Island, 837 F.2d 

7, 16 (1st Cir. 1998) (noting that “the weight of authority is against [recognizing the right to] 

representation by counsel at [school] disciplinary hearings, unless the student is also facing 

criminal charges stemming from the incident in question”); Donohue v. Baker, 976 F. Supp. 136, 

146 (N.D.N.Y. 1997) (noting that a student in a school disciplinary hearing has a right to counsel 

only to protect his Fifth Amendment right against self-incrimination, not to affect the outcome of 

the hearing through cross-examination).

Should the representative instead be a teacher or an administrator? Such an individual 

would undoubtedly need to be paid for his or her work, imposing an additional burden on the 

university. Could the representative be a friend or family member of the accused? And would 

the rules of evidence apply to the cross-examination? Cf. Flaim, 418 F.3d at 635 (observing that 

“[c]ourts have generally been unanimous . . . in concluding . . . that neither rules of evidence nor 

rules of civil or criminal procedure need be applied” in school disciplinary hearings). Assuming 
No. 17-2213 Doe v. Baum, et al. Page 20

they would not, who would decide what limits to impose on the representative’s questioning and 

using what criteria?

This court has repeatedly held that “[f]ull-scale adversarial hearings in school 

disciplinary proceedings have never been required by the Due Process Clause.” Univ. of 

Cincinnati, 173 F. Supp. 3d at 603 (quoting Flaim, 418 F.3d at 640). And the burden of allowing 

a representative to participate by cross-examining witnesses “in every disciplinary hearing would 

be significant due to the added time, expense, and increased procedural complexity.” Cummins, 

662 F. App’x at 449; see also Flaim, 418 F.3d at 640–41 (“[C]onducting [full adversarial 

hearings] with professional counsel would entail significant expense and additional procedural 

complexity.”). This would be especially true if the university were also required to provide 

representation for a student who could not provide his or her own.

Although a university may choose to allow an agent or representative of an accused 

student to cross-examine the complainant and his or her witnesses, no court has previously held 

that this is constitutionally required. This court has instead held that the university must provide 

at least the “circumscribed form” of cross-examination set out in Cummins, 662 F. App’x at 446. 

And because Doe was not provided with even this level of cross-examination, I agree that his 

due process rights were violated.

I recognize that a case might arise where the Constitution requires more than the 

procedures that this court approved of in Cummins, but we should address that issue only if and 

when it arises. We need not—and should not—resolve it today because we have been given 

neither the facts nor the arguments necessary to conduct an adequate analysis. I therefore believe 

that we should refrain from imposing on all universities a rigid requirement to provide students 

facing expulsion with an opportunity to have a representative cross-examine adverse witnesses. 

See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 482 (1982) (“We must bear in mind that no 

single model of procedural fairness, let alone a particular form of procedure, is dictated by the 

Due Process Clause. . . . ‘The very nature of due process negates any concept of inflexible 

procedures universally applicable to every imaginable situation.’” (quoting Mitchell v. W.T. 

Grant Co., 416 U.S. 600, 609 (1974))); Gorman v. Univ. of Rhode Island, 837 F.2d 7, 16 (1st 

Cir. 1988) (“[O]n review, the courts ought not to extol form over substance, and impose on 
No. 17-2213 Doe v. Baum, et al. Page 21

educational institutions all the procedural requirements of a common law criminal trial. . . . In 

all cases the inquiry is whether, under the particular circumstances presented, the hearing was 

fair, and accorded the individual the essential elements of due process.”).

II. Title IX claim

I now turn to Doe’s claim under Title IX. Doe contends that the University faced 

pressure from the United States Department of Education, the general public, and student groups 

to adequately address sexual-assault complaints made against male students on campus and that, 

as a consequence, the University erroneously found him responsible for sexual misconduct 

because of his gender. But no circuit court has ever held that a student plausibly states a claim 

that deficiencies in his disciplinary proceedings were motivated by gender bias where the only 

fact that he alleges to show such bias is general pressure on the university to adequately address 

allegations of sexual assault. Cf. Doe v. Miami Univ., 882 F.3d 579, 593 (6th Cir. 2018) (noting 

that to survive a motion to dismiss, a plaintiff must show a “causal connection between the 

flawed [disciplinary] outcome and gender bias” by alleging, “inter alia, statements by members 

of the disciplinary tribunal, statements by pertinent university officials, or patterns of decisionmaking that also tend to show the influence of gender”).

In Miami University, this court found the complaint sufficient where it alleged facts 

showing a pattern of gender-based decision-making, in addition to general pressure on the 

university to take sexual-assault claims seriously. Id. at 593. This evidence included “an 

affidavit from an attorney who represents many students in Miami University’s disciplinary 

proceedings, which describes a pattern of the University pursuing investigations concerning male 

students, but not female students.” Id. It also included an allegation that the university 

investigated the complaint of sexual misconduct made against the male plaintiff but did not 

investigate his allegation that his female accuser actually perpetrated sexual misconduct against 

him. Id. at 590–91, 593.

The Miami University court further noted that the university “was facing pressure to 

increase the zealousness of its ‘prosecution’ of sexual assault and the harshness of the sanctions 

it imposed because it was a defendant in a lawsuit brought by a student who alleged that she
No. 17-2213 Doe v. Baum, et al. Page 22

would not have been assaulted if the University had expelled her attacker for prior offenses.” Id.

at 594. This alleged pattern of activity relating to sexual-assault matters, combined with the 

general pressure on the university, was deemed sufficient to “support a reasonable inference of 

gender discrimination” and therefore to survive a motion to dismiss. Id.

Similarly, in Doe v. Columbia University, 831 F.3d 46, 57 (2d Cir. 2016), the Second 

Circuit held that a complaint plausibly alleged gender discrimination when it contended that, 

“during the period preceding the disciplinary hearing, there was substantial criticism of the 

University[] both in the student body and in the public media [that] accus[ed] the University of 

not taking seriously complaints of female students alleging sexual assault by male students.” Id. 

The complaint further alleged that “the University’s administration was cognizant of, and 

sensitive to, these criticisms, to the point that the President called a University-wide open 

meeting with the Dean to discuss the issue.” Id. Moreover, the investigator in that case had been 

subjected to “personal criticism” by the student body and in news articles “for her role in prior 

cases in which the University was seen as not taking seriously the complaints of female 

students.” Id. at 51, 58.

The investigator in Columbia University was thus aware that the university “had been 

criticized for . . . conducting the investigations in a manner that favored male athletes and that 

was insufficiently protective of sexually assaulted females.” Id. Finally, the plaintiff in 

Columbia University alleged that the investigator failed to interview key witnesses identified by 

the plaintiff, that she was hostile to him during interviews, and that she failed to inform him of 

his right to make a statement at the hearing. Id. at 49, 52.

Unlike the plaintiffs in Miami University and Columbia University, Doe crucially fails to 

link general pressure on the University of Michigan to the particular proceedings that he faced. 

See Doe v. Cummins, 662 F. App’x 437, 452 (6th Cir. 2016) (noting that “to state an erroneousoutcome claim, a plaintiff must plead . . . a ‘particularized . . . causal connection between the 

flawed outcome and gender bias’” (emphasis and first ellipsis added; second ellipsis in original) 

(quoting Yusuf v. Vassar College, 35 F.3d 709, 715 (2d Cir. 1994))). Nor does Doe allege any 

facts suggesting a pattern of discriminatory behavior by the University in its response to sexualassault allegations, or that he made any sexual-misconduct complaints himself that the 
No. 17-2213 Doe v. Baum, et al. Page 23

University ignored, in contrast to the plaintiff’s allegations in Miami University, 882 F.3d at 

590–91, 593. There is also no allegation here that the investigator faced individualized criticism 

for her handling of previous sexual-assault claims and subsequently manifested hostility toward 

Doe, in contrast to the plaintiff’s contentions in Columbia University, 831 F.3d at 49, 51–52, 58. 

In fact, the investigator here found in favor of Doe, and Doe acknowledged that her investigation 

was “thorough.” 

Doe also fails to show how general pressure on the University’s administration to pursue 

and effectively address sexual-assault complaints led the Appeals Board—a board made up of an 

assistant dean from the law school, a retired professor from the dentistry school, and a student—

to take actions against him based on gender bias. He also fails to identify any practice or policy 

adopted by the University in response to either external or internal pressure that would reflect 

bias against males. Moreover, the media reports published after the Appeals Board decision 

(which reports allege that the University was continuing to inadequately address sexualmisconduct complaints) would appear to belie any contention that the University had 

overcorrected by adopting policies or practices biased against male students accused of sexual 

misconduct.

The majority in fact recognizes that the alleged external pressure on the University alone 

is not sufficient to plausibly show that a university acted based on gender bias in Doe’s particular 

case. Maj. Op. at 13. But it concludes that this pressure is sufficient when combined with Doe’s 

allegation that the Appeals Board adopted all of the statements made by the female witnesses and 

rejected all of the statements made by the male witnesses. Maj. Op. at 13–14. More specifically, 

the majority reasons that “when viewed against the backdrop of external pressure, the Board’s 

decision to discredit Doe’s fraternity brothers in part because they were fraternity brothers, while 

not holding Roe’s witnesses to the same standard, is basis enough at the motion-to-dismissstage.” Maj. Op. at 14. But the majority’s observation about the Appeals’ Board’s alleged 

disparate treatment of the witnesses is not borne out by the record. (I recognize that the record 

would not normally be considered at the motion to dismiss stage of the case. But as 

acknowledged in footnote 4 of the majority opinion, the administrative record was referenced in 

the complaint and, without objection by either party, considered as part of the pleadings.)
No. 17-2213 Doe v. Baum, et al. Page 24

To start with, the Appeals Board discussed statements from only two of Roe’s sorority 

sisters, although additional sorority sisters provided statements that were contained in the 

investigator’s report. The record reflects the following evaluation by the Appeals Board:

Two witnesses who know [Roe] reported that they observed [Roe] drinking from 

the wine bag at [Doe’s] fraternity and also reported that they perceived she was 

intoxicated for a variety of reasons (very energetic when she’s drunk; inhibitions 

were lowered; and speech that was ‘not completely clear,’ contained ‘occasional 

slurs,’ and occasionally trailed off at the end of sentences).

The Appeals Board provided no further discussion of these statements that would suggest 

that it was relying on them beyond its observation that Roe’s statements were “corroborated by 

other witnesses, particularly by Witness 2’s observations of [Roe’s] behavior and physical 

condition immediately after the sexual encounter.” And this observation by the Appeals Board 

leads directly to the biggest weakness in both Doe’s and the majority’s position: the Appeals 

Board’s decision to credit the testimony of Roe and Witness 2 (and subsequently to find Doe 

responsible for sexual misconduct) was based on the considerations that (1) Witness 2 spent 

significant time with Roe following Roe’s sexual encounter with Doe, and (2) Witness 2 had no 

connection to Doe, Roe, or their respective Greek institutions. 

The Appeals Board explained:

Although there were other witnesses who observed Complainant both prior to and 

after the sexual encounter with Respondent, many of them were fraternity 

brothers of Respondent, and all of them only observed Complainant briefly and/or 

at a distance. For these reasons, we find their statements to be significantly less 

persuasive than the statements of Complainant and Witness 2. Complainant knew 

that she consumed an excessive amount of alcohol and recognized that she was 

not mentally or physically in control. Witness 2 had no previous connection to 

Complainant and observed her for a lengthy period of time, spanning from a few 

minutes after Complainant’s sexual encounter with the Respondent, through the 

time she got Complainant into bed at her dorm.

Whether the statements made by Roe’s sorority sisters were credible was not discussed. The 

Appeals Board’s decision instead shows that the statements by Doe and his witnesses were 

disfavored only as compared to the statements of Roe and Witness 2, and that there was no 

categorical preference shown for or against statements by fraternity brothers versus sorority 

sisters, or for or against statements by men versus women as such. The Appeals Board also 
No. 17-2213 Doe v. Baum, et al. Page 25

noted that Witness 2’s observations were further corroborated by two witnesses who helped Roe 

into a vehicle outside the fraternity house and who, like Witness 2, had no connection to Doe or 

Roe. 

I therefore find no basis to reasonably infer that the Appeals Board declined to rely on the 

statements made by Doe and his witnesses simply because they were men. This leaves us with 

only one fact from which to infer that gender bias caused the procedural defects in Doe’s 

disciplinary proceedings—the general pressure on the University to adequately address sexualassault claims. But as discussed above, this is not sufficient to show the “particularized . . . 

casual connection” required to plausibly allege a claim of gender bias under Title IX. See Doe v. 

Miami Univ., 882 F.3d 579, 592 (6th Cir. 2018) (quoting Doe v. Cummins, 662 F. App’x 437, 

452 (6th Cir. 2016)); Cummins, 662 F. App’x at 453 (noting that a complaint is insufficient if it 

shows at most “a disciplinary system that is biased in favor of alleged victims and against those 

accused of misconduct”). Absent an allegation of some particularized facts linking gender bias

to the University’s disciplinary practices or proceedings, I respectfully dissent as to the viability 

of Doe’s Title IX claim.