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 university’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 process, including the decision affirming the committee; and various correspondence from the process. The district court did 

not hold an evidentiary hearing on John’s motion for a preliminary 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 happened after he returned. Jane complained that later that night, 

John got on her bed and the two started kissing. Jane acknowledged 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 previous night. She did not tell her roommate then that it was without 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 advisor that it would hold a hearing on Jane’s complaint. (John’s 

lawyer in this appeal and before the district court was his advisor during the grievance process.) As with the investigation, 

the university delegated the hearing process to outside contractors, 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 questioning of each witness. Under the university’s policy, John’s and 

Jane’s advisors were barred from objecting during questioning, but they could and did cross-examine the witnesses. During 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 regarding 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 continued 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 threesemester 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 alleged, 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 expedited 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 preliminary 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 injunction 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 injunctions: “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 inferences 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) analysis,” but plaintiffs had not “demonstrated a likelihood of success on the merits”); see also In re Federal Bureau of Prisons’ 

Execution Protocol Cases, 980 F.3d 123, 134 (D.C. Cir. 2020) (preliminary 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) (contrasting “significantly different burden” in moving for preliminary injunction with what is required to defeat summary 

judgment). In reviewing the district court’s decision on a preliminary 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 discrimination. He instead relies on essentially three types of circumstantial evidence to support his claim: public pressure on the 

university to respond aggressively to complaints of sexual assaults 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 article 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 circumstantial evidence of bias. Here, the university took significant 

steps to insulate the grievance process from any public pressure. It used independent contractors at each stage of the proceedings. The outside lawyer who did the original investigation, the committee members who heard the case, and the outside lawyer who acted as appeal officer were not affiliated 

with the university. No school officials were involved even in 

deciding John’s sanction.

5 Jane’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 irregularities 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 mitigate 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 general or the accusations against John in particular causing the outside investigator, 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 imperfections 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 irregularities 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 because 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 increases, 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 discrimination 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 university violated 34 C.F.R. § 106.45(b)(2)(i)(B) (2020) by “first giving notice of Jane’s Title IX charges to [him] immediately prior 

to the hearing and misrepresent[ing] the existence of her written 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 respondent “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 conduct 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 investigator’s report.

John also contends the university “suppressed” exculpatory evidence by withholding from him Jane’s response to his 

appeal. It did not. Jane filed her appeal letter after the deadline. The university enforced that deadline against Jane by letting 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 received with notice of the hearing said that Jane’s Title IX complaint had alleged non-consensual kissing. This inconsistency, says John, is evidence that the university knew Jane 

had filed a false complaint and withheld that evidence to protect 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 antimale bias.
16 No. 22-1864 

2. Invited Errors

Other alleged errors were invited by John. Take for instance his assertion that the university violated 34 C.F.R. 

§ 106.45(b)(6) by “allowing evidence as to prior sexual relations between John and Jane.” But it was John who made comments 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 before 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 error, violating the rules in John’s favor does not show an antimale 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 antimale 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 investigator and that had been included in the investigative report. 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 investigative 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 support 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. Section 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 parties in Title IX proceedings, but the two regulations do not 

necessarily conflict. Without deciding whether the university’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 violated his rights under § 106.45(b)(8)(i) by restricting the subjects he could raise on appeal. That section permits complainants 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 general policy, by comparison, restricts the “procedural irregularities” 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 appeal aspects of the proceedings that he argues here were off 

limits, and the appeal officer addressed those points in his decision. Moreover, the appeal policy applied to every respondent 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 arguably be considered mistakes. They are not enough to show a 

likely bias against men. For example, as noted, Jane’s complaint against John asserted a charge of non-consensual kissing. 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 determinations 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 appeal 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 procomplainant 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 assaulted 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 occurred 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 antirespondent 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 antirespondent 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 committee members if they had seen the 4:36 am photo and one additional 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 Decisionmakers 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 contention.”

The regulations do not impose the Federal Rules of Evidence on Title IX hearings, and we appreciate the challenges 

of handling physical and electronic evidence in a hearing conducted 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 failure 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 discussed, 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 procedural errors. Appellate courts do not quickly infer that an erroneous result must have been caused by unlawful bias, especially 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 investigation 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 November 14 that John had digitally penetrated her that night 

(albeit, not that it was without her consent), which contradicted John’s new account that the sexual encounter happened 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 consensual, 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 evidence 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 incredible.’” (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 University, 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 decision against him were likely the products of intentional bias 

against his sex. That is the standard. He has not shown a likelihood of success on the merits that would support a preliminary injunction, and the district court did not abuse its discretion 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 suspension 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 irreparable 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.