PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-2452

MALCOLM X. SHEPPARD,

Plaintiff - Appellant,

v.

THE VISITORS OF VIRGINIA STATE UNIVERSITY; HENRY DEBOSE, 

individually,

Defendants - Appellees,

and

LETIZIA GAMBRELL-BOONE, individually and in her official capacity; JULIA 

A. WALKER,

Defendants.

Appeal from the United States District Court for the Eastern District of Virginia, at 

Richmond. Henry E. Hudson, District Judge. (3:18−cv−00723−HEH)

Argued: January 28, 2021 Decided: April 2, 2021

Before AGEE, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge 

Agee and Judge Thacker joined.
2

ARGUED: Scott G. Crowley, CROWLEY & CROWLEY, Glen Allen, Virginia, for 

Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF 

VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Mark R. Herring, Attorney 

General, Samuel T. Towell, Deputy Attorney General, Ronald N. Regnery, Senior 

Assistant Attorney General, Sandra S. Gregor, Assistant Attorney General, Toby J. 

Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitor General, Jessica Merry 

Samuels, Assistant Attorney General, Zachary R. Glubiak, John Marshall Fellow, OFFICE 

OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; Ramona L. 

Taylor, University Legal Counsel, VIRGINIA STATE UNIVERSITY, Petersburg, 

Virginia, for Appellees.
3

QUATTLEBAUM, Circuit Judge: 

Malcolm X. Sheppard appeals the district court’s dismissal of both his Title IX

claim against the Visitors of Virginia State University and his Fourteenth Amendment 

claims against Henry Debose, a university administrator. For the reasons that follow, we 

affirm.

I.

Sheppard’s claims arise from an altercation with a former girlfriend in a Virginia 

State University (“VSU”) dormitory.1 From 2014 to 2016, Sheppard was enrolled as a 

student at VSU. On October 25, 2016, he discovered personal items were missing from his 

dorm room. Sheppard then learned from his roommate that Sheppard’s former girlfriend, 

Student A, who was also a student, and her female friend, Student B, had been in his room.

Sheppard first sought help from two dorm resident assistants to retrieve his personal items. 

After they were unwilling or unable to help, Sheppard decided to retrieve the items himself. 

According to Sheppard’s Amended Complaint:

Sheppard confronted Student A; he went to grab the dorm room keys 

from her and inadvertently pushed Student A while in the hallway outside of 

her dorm room. Student A filed an Incident Report with VSU’s Department 

of Police and Public Safety . . . stating that Sheppard “pushed her several 

times while in front of [her dorm] . . . room and again in a nearby stairwell.”

J.A. 31. 

1 Because we are reviewing a dismissal pursuant to Rule 12(b)(6) of the Federal 

Rules of Civil Procedure, the facts presented here are as alleged by Sheppard.
4

Student B submitted a written statement to VSU’s Department of Police and Public 

Safety acknowledging her involvement in taking items from Sheppard’s dorm room and 

corroborating Student A’s account of Sheppard’s “pushing and grabbing.” J.A. 31. The 

Department referred all three students to VSU’s Office of Judicial Affairs (“OJA”). 

Sheppard was referred for assault, and Students A and B were referred for larceny. The day 

after the incident, OJA issued Sheppard a “Pre-Hearing Notice” of the charges against him

and required he remain off campus pending their resolution. At that time, Sheppard, with 

permission to continue his courses online for the time being, went home. 

OJA held a hearing on October 31, 2016, six days after the incident, which Sheppard 

attended. At that hearing, OJA found Sheppard to have violated Sections 8.01 (physical 

abuse, threats, intimidation or harassment) and 8.02 (violence on university property) of 

the VSU Student Code of Conduct. OJA imposed sanctions, including “100 hours of 

community service, anger management sessions, relationship violence education, and 

probation,” but did not suspend Sheppard or preclude him from completing his coursework. 

J.A. 32. Sheppard appealed to Debose, the Director of OJA, seeking modifications to

certain sanction requirements. Sheppard alleges he received no response and OJA never 

heard his appeal.

Meanwhile, sometime around the date of the incident, Student A had obtained a 

protective order in the Chesterfield County General District Court. The Order prohibited 

Sheppard from entering VSU’s campus or being within 100 feet of Student A. Sheppard 

claims he never received notice of a hearing or a copy of the Order. On November 9, 2016, 
5

with Sheppard still in the dark, the Chesterfield County General District Court extended 

the Order through January 2017. 

Based on the Order, VSU emailed Sheppard’s professors asking them to permit him 

to complete the remainder of the term online. One professor denied this request. On 

November 29, 2016, Debose wrote Sheppard, notifying him that his suspension from VSU 

would remain in effect and that he was deemed to be withdrawn from his courses. 

According to Sheppard, this was the first time he was told he was suspended. 

As to the charges against Students A and B, on December 17, 2016, OJA contacted 

them regarding their alleged violations. Student B received “Pre-Hearing Notice” on 

January 11, 2017, with a hearing date set approximately one week later. Following initial 

postponement of the hearing at Student B’s request, OJA found Student B not responsible 

for theft. OJA held Student A’s hearing on April 7, 2017, finding her responsible for theft 

and imposing sanctions.

Sheppard filed a complaint with the Department of Education’s Office of Civil 

Rights (“OCR”) in January 2017, alleging that VSU treated him differently than Students 

A and B on the basis of sex due to the time delay in OJA proceedings against Students A 

and B in comparison to Sheppard.

2 According to Sheppard, OCR’s preliminary 

investigation found that he had established a prima facie case of discrimination. Thereafter, 

2 VSU received noticed of Sheppard’s OCR Complaint on March 16, 2017. 
6

VSU entered into a Resolution Agreement with OCR to ensure future compliance with 

Title IX rather than proceed with a full investigation. 

After Sheppard sued VSU, the district court dismissed his first complaint without 

prejudice under Federal Rule of Civil Procedure 12(b)(6).

3 Subsequently, Sheppard 

amended his complaint, re-alleging his Title IX claim against VSU and his due process

claim under 42 U.S.C. § 1983 against Debose. Sheppard also added an equal protection 

claim under § 1983 against Debose. Again, the district court granted the defendants’ 

Motion to Dismiss. In its memorandum opinion, the district court found, first, that

Sheppard’s Title IX claim, pled under the selective enforcement framework established in 

Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994), failed to demonstrate he was treated 

less favorably than a similarly situated student on the basis of his gender. Second, as to 

Sheppard’s due process claim, the district court held that Debose was entitled to qualified 

immunity.4 And lastly, Sheppard’s equal protection claim, like his Title IX claim, failed to 

identify a similarly situated female student that was treated differently. 

Sheppard timely appealed, and we have jurisdiction to hear his appeal under 28 

U.S.C. § 1291.

3 Sheppard’s first Complaint brought a Title IX and Family Educational Rights 

Privacy Act (“FERPA”) claim against VSU and Title IX, FERPA and due process claims 

against several VSU administrators. 

4 Moreover, the district court found Sheppard’s due process claim failed on the 

merits. 
7

II.

We review dismissals under Federal Rule of Civil Procedure 12(b)(6) for failure to 

state a claim de novo, viewing the facts in the light most favorable to the plaintiff. 

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). “A motion to dismiss pursuant 

to Rule 12(b)(6) tests the sufficiency of the claims pled in a complaint.” ACA Fin. Guar. 

Corp. v. City of Buena Vista, Va., 917 F.3d 206, 211 (4th Cir. 2019). To survive, a 

complaint must contain “a short and plain statement of the claim showing that the pleader 

is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). While this standard does not require 

detailed factual allegations, it does require “sufficient factual matter, accepted as true, to 

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While we must 

accept the factual allegations in the complaint as true, we need not accept a complaint’s 

legal conclusions. Thus, simply reciting the cause of actions’ elements and supporting them 

by conclusory statements does not meet the required standard.” ACA Fin. Guar. Corp., 917 

F.3d at 212 (citation omitted). With this standard in mind, we turn to Sheppard’s Amended 

Complaint. 

 A.

We first consider Sheppard’s Title IX and equal protection claims. Finding they fail 

for largely the same reasons, we affirm the district court’s dismissal of both.

 1.

Title IX prohibits federally-supported educational institutions from practicing 

discrimination on the basis of sex. 20 U.S.C. § 1681(a) (“No person in the United States 
8

shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or 

be subjected to discrimination under any education program or activity receiving Federal 

financial assistance . . . .”). And it is enforceable through an implied private right of action,

Cannon v. Univ. of Chicago, 441 U.S. 677, 703 (1979). Despite that, we have no 

precedential decisions regarding Title IX claims in the context we face here—highereducation disciplinary proceedings.5 Thus, our first task is to determine what a party 

asserting such a Title IX claim must plausibly allege.

Looking to how our sister circuits have addressed this issue, courts are split. The 

first approach, articulated by the Second Circuit, in Yusuf v. Vassar College, 35 F.3d 709, 

715 (2d Cir. 1994), provides that “[p]laintiffs attacking a university disciplinary proceeding 

on grounds of gender bias can be expected to fall generally within two categories,” 

erroneous outcome and selective enforcement. Yusuf then announced the requirements for 

establishing either claim.6 See id. The First and Fifth Circuits have followed Yusuf’s 

5 To be clear, we have, in the past, expressed support for the Yusuf framework. See

Brzonkala v. Va. Polytechnic Inst. & State Univ., 132 F.3d 949, 957 (4th Cir. 1997), rev’d 

en banc on other grounds, 169 F.3d 820 (4th Cir. 1999); see also Doe 2 by and through

Doe 1 v. Fairfax Cnty. Sch. Bd., 832 Fed. App’x 802, 804–05 (4th Cir. 2020) (unpublished

per curiam opinion analyzing plaintiff’s claim under Yusuf framework);Doe v. Loh, 767 

Fed. App’x 489, 491 (4th Cir. 2019) (unpublished per curiam opinion analyzing plaintiff’s 

claim under Yusuf’s erroneous outcome framework). 

6 An erroneous outcome claim alleges that “the plaintiff was innocent and wrongly 

found to have committed an offense.” Yusuf, 35 F.3d at 715. To plead erroneous outcome, 

plaintiffs “must allege particular facts sufficient to cast some articulable doubt on the 

accuracy of the outcome of the disciplinary proceeding. If no such doubt exists based on 

the record before the disciplinary tribunal, the claim must fail.” Id. As to selective 

enforcement, “[s]uch a claim asserts that, regardless of the student’s guilt or innocence, the 

severity of the penalty and/or the decision to initiate the proceeding was affected by the 
9

approach. See Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 73–74 (1st Cir. 2019) 

(holding to succeed on a selective enforcement theory, plaintiff must show that “the 

severity of the penalty and/or the decision to initiate the proceeding was affected by the 

student’s gender.” (quoting Yusuf, 35 F.3d at 715)); Klocke v. Univ. of Tex. at Arlington, 

938 F.3d 204, 210 (5th Cir. 2019) (recognizing Yusuf’s two-theory framework).

The Seventh Circuit, however, has rejected Yusuf as an all-inclusive doctrinal

framework for student disciplinary proceedings. Doe v. Purdue Univ., 928 F.3d 652, 667 

(7th Cir. 2019) (holding Yusuf’s categories merely describe ways a party could allege 

discrimination on the basis of sex). Instead, Purdue articulated an approach that more 

closely tracks the text of Title IX, asking merely “do the alleged facts, if true, raise a 

plausible inference that the university discriminated against [the student] on the basis of 

sex?” Id. at 667–68 (internal quotation marks omitted). Many circuits have agreed with 

that approach. See Doe v. Univ. of Sciences, 961 F.3d 203, 209 (3d Cir. 2020) (“[T]o state 

a claim under Title IX, the alleged facts, if true, must support a plausible inference that a 

federally-funded college or university discriminated against a person on the basis of sex. 

Although parties are free to characterize their claims however they wish, this standard hews 

most closely to the text of Title IX.”); Doe v. Univ. of Ark.-Fayetteville, 974 F.3d 858, 864 

(8th Cir. 2020) (“To state a claim, therefore, [plaintiff] must allege adequately that the 

student’s gender.” Id. While Yusuf is not as clear on what is required to plead selective 

enforcement, interpreting courts have found that such a claim requires a plaintiff plead a 

similarly situated student was treated more favorably. See Haidak v. Univ. of Mass.-

Amherst, 933 F.3d 56, 74 (1st Cir. 2019).
10

University disciplined him on the basis of sex—that is, because he is male.”); Schwake v. 

Ariz. Bd. of Regents, 967 F.3d 940, 947 (9th Cir. 2020) (“We adopt [the Seventh Circuit’s] 

far simpler standard for Title IX claims. . . .”).

We agree with the Seventh’s Circuit’s approach and see no need to deviate from the 

text of Title IX. In adopting this approach, however, we find no inherent problems with the 

erroneous outcome and selective enforcement theories identified in Yusuf. In fact, either 

theory, with sufficient facts, may suffice to state a plausible claim. We merely emphasize 

that the text of Title IX prohibits all discrimination on the basis of sex. See 20 U.S.C. 

§ 1681(a).

We also clarify that inherent in this approach is a requirement that a Title IX plaintiff 

adequately plead causation—that is, a causal link between the student’s sex and the 

university’s challenged disciplinary proceeding. Not just any causal link will suffice

because, again, the text of Title IX controls. Title IX prohibits discrimination by federallysupported educational institutions “on the basis of sex.” 28 U.S.C. § 1681(a). That 

language—“on the basis of sex”—is significant. While admittedly not yet addressed in the 

context of a Title IX school disciplinary proceeding, the Supreme Court and our Circuit 

have held that the same or similar language requires “but-for” causation. See Bostock v. 

Clayton Cnty., Ga, 140 S. Ct. 1731, 1739 (2020) (“[T]he ordinary meaning of ‘because of’ 

is ‘by reason of’ or ‘on account of.’ In the language of the law, this means that Title VII’s 

‘because of’ test incorporates the ‘simple’ and ‘traditional’ standard of but-for causation.” 

(internal quotation marks and citations omitted)); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

570 U.S. 338, 351–52 (2013) (finding that the term “because” in Title VII’s antiretaliation 
11

provision required “proof that the desire to retaliate was the but-for cause of the challenged 

employment action”); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (holding 

that the Age Discrimination in Employment Act’s language “because of such individual’s 

age,” required plaintiff show “age was the ‘but-for’ cause of the employer’s adverse 

decision”); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 184 (2005) (finding that in 

a Title IX retaliation claim, a Title IX plaintiff “will have to prove that the [funding 

recipient] retaliated against him because he complained of sex discrimination”); Grimm v.

Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020) 

(relying on Bostock to find that in Title IX, “sex remains a but-for cause” in homosexual 

or transgender discrimination); Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 

228, 235–36 (4th Cir. 2016) (holding that under Title I of the American with Disabilities 

Act’s language, “discrimination . . . on the basis of disability,” requires a plaintiff show 

“but-for” causation).

7 We agree that “on the basis of sex” requires “but-for” causation in 

Title IX claims alleging discriminatory school disciplinary proceedings. 

Having determined what Sheppard must plausibly allege, our next task is to 

determine whether he has adequately done so. Sheppard alleges “VSU discriminated 

7 Thus far, none of our sister circuits have squarely addressed the causation 

requirement in a Title IX disciplinary proceeding. The Second and Seventh Circuits have 

suggested it might be sufficient for sex to be a motivating factor. See Yusuf, 35 F.3d at 715

(relying on Title VII to find that “we may safely say that Title IX bars the imposition of 

university discipline where gender is a motivating factor in the decision to discipline.”); 

Purdue, 928 F.3d at 667 (describing Yusuf’s framework as “ways in which a plaintiff might 

show that sex was a motivating factor in a university's decision to discipline a student”). 

But in the absence of congressional intervention as in the Civil Rights Act of 1991, which 

expressly amended Title VII to include a motivating factor standard, we are constrained to 

the text of Title IX and our binding precedent interpreting the same or similar language. 
12

against [him] by selectively enforcing the Student Code of Conduct against him, by taking 

swift and aggressive administrative action against him while taking essentially no action 

against female students charged in the same incident until compelled to do so by 

Sheppard’s complaint to [OCR] . . . .” J.A. 37. According to Sheppard, the facts as pled 

give rise to a plausible inference of sex discrimination because, although his situation was 

similar in all respects to Student A’s, OJA moved against him more quickly than Students

A and B and OJA only proceeded against Students A and B in response to Sheppard’s OCR 

Complaint. 

We disagree. First, Sheppard pled no facts to support his conclusory allegation that 

he was similarly situated to Student A. Sheppard emphasizes what he describes as the 

generally-shared facts surrounding the altercation, including the same broad time frame, 

the same students involved and the same Code of Conduct invoked. But even taking 

Sheppard’s allegations as true, Sheppard and Student A were not in similar positions.

Student A was charged with larceny, an event temporally and elementally distinct from 

Sheppard’s assault charge. Additionally, Sheppard, unlike Student A, was subject to a 

protective order issued by Chesterfield County General District Court.

Next, the time difference in OJA’s proceedings against Sheppard compared to 

Student A that Sheppard alleges here does not give rise to an inference of discrimination

on the basis of sex. There is nothing unusual, much less unreasonable, about proceeding 

against one party first. In fact, even in a joint disciplinary proceeding with two identically 

situated students, one party would still have to go first. Further, Sheppard alleged no facts 
13

that plausibly show or infer that Sheppard’s sex had anything to do with OJA’s order or 

timing of proceedings. 

At oral argument, Sheppard also likened the situation to two teams playing 

basketball and the referees only making calls against one team. But his factual allegations

belie this analogy. Sheppard’s Amended Complaint acknowledges that, by December 

2016, all three students had received some notice of their pending OJA proceedings as a 

result of the altercation and that, by April 2017, OJA had fulfilled its obligation to all 

parties—finding Sheppard responsible for assault, Student A responsible for larceny and 

Student B not responsible for larceny. Even by Sheppard’s own allegations, OJA called 

fouls—metaphorically—on both Sheppard and Student A.

Sheppard’s final argument relates to his OCR complaint. He insists OJA only 

conducted hearings for Students A and B because he complained to OCR. Once again, 

however, his own allegations suggest the opposite is true. Prior to Sheppard’s OCR 

Complaint, OJA not only gave Students A and B some form of notice but also scheduled 

Student B’s proceedings. Although OJA later rescheduled Student B’s proceedings, 

Sheppard points to no discriminatory reason for that postponement, merely stating “[t]hat 

hearing was subsequently postponed at her request.” J.A. 34. The facts, as alleged, show 

VSU did proceed, in some fashion, as to Students A and B before Sheppard’s OCR 

Complaint. The fact that Sheppard believes otherwise, absent more, does not suffice to 

render his claim plausible. See Twombly, 550 U.S. at 555 (“Factual allegations must be 

enough to raise a right to relief above the speculative level . . . .”). 
14

In sum, even construing Sheppard’s Amended Complaint as true, as we must,

Sheppard has failed to plead facts sufficient to give rise to a plausible inference of 

discrimination that was caused by his sex. That is, there is no plausible inference that 

Sheppard’s gender was the “but-for” cause of his treatment under VSU’s disciplinary 

proceedings. Accordingly, his claim was properly dismissed. 

2.

Sheppard’s equal protection claim under 42 U.S.C. § 1983 fails for largely the same 

reasons. “In order to survive a motion to dismiss an equal protection claim, a plaintiff must 

plead sufficient facts to demonstrate plausibly that he was treated differently from others 

who were similarly situated and that the unequal treatment was the result of discriminatory 

animus.” Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 108 (4th Cir. 2011). 

Sheppard’s equal protection claim, relying on the same facts as his Title IX claim,

first fails to demonstrate plausibly that he and Student A were similarly situated. But even 

assuming Sheppard and Student A were similarly situated, his Amended Complaint fails 

to plead plausible discriminatory animus. Count III of his Amended Complaint alleging an 

equal protection violation contains only the conclusory statement, “Debose, was directly 

responsible for discriminating against Sheppard . . . on account of his male gender . . . .” 

J.A. 40. Absent any specific allegations that Debose was motivated by discriminatory 

animus, Sheppard’s Amended Complaint fails to give rise to a plausible equal protection 

claim and was also properly dismissed.
15

B.

Last, we consider Sheppard’s due process claim under 42 U.S.C. § 1983. This claim 

can be quickly disposed of on the basis of qualified immunity. 

It is “a well-established principle of federal civil rights litigation . . . that government 

officials sued in their personal capacities for violations of federal rights are entitled to 

qualified immunity if the right was not clearly established at the time of the violation.” Doe 

v. Rector & Visitors of George Mason Univ., 132 F. Supp. 3d 712, 724 (E.D. Va. 2015) 

(citing Pearson v. Callahan, 555 U.S. 223, 231 (2009); Saucier v. Katz, 533 U.S. 194, 200–

01 (2001)). To determine whether qualified immunity shields Debose, we must consider 

whether (1) the facts “make out a violation of a constitutional right” and (2) whether that 

right was “clearly established” at the time of the defendant’s alleged misconduct. Pearson,

555 U.S. at 232. By looking to the merits of Sheppard’s claim, we determine prong two 

ends our inquiry. Id. at 236 (“The judges of the district courts and the courts of appeals 

should be permitted to exercise their sound discretion in deciding which of the two prongs 

of the qualified immunity analysis should be addressed first in light of the circumstances 

in the particular case at hand.”). 

To begin, Sheppard must identify a cognizable property or liberty interest and a 

deprivation without due process.8 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 

569–71 (1972). “A protected property interest cannot be created by the Fourteenth 

8 Sheppard focuses only on a protectable “property” interest. J.A. 38–39, Opening 

Brief of Appellant at 15–22.
16

Amendment itself, but rather must be created or defined by an independent source.” Equity 

in Athletics, 639 F.3d at 109. This property interest must be “more than a mere ‘unilateral 

expectation of it’ or ‘abstract need or desire for it.’” Id. (quoting Roth, 408 U.S. at 577). 

Thus, Sheppard must show “a state created property interest in continued enrollment at a 

public education institution exists in Virginia.” Davis v. George Mason Univ., 395 F. Supp. 

2d 331, 336 (E.D. Va. 2005), aff’d per curiam, 193 F. App’x 248 (4th Cir. 2006). 

“The Supreme Court has [only] assumed, without actually deciding, that university 

students possess a ‘constitutionally protectible property right’ in their continued enrollment 

in a university.” Tigrett v. Rector & Visitors of Univ. of Va., 290 F.3d 620, 627 (4th Cir. 

2002) (quoting Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 223 (1985)). We have

followed the same watchful approach. Tigrett, 290 F.3d at 627 (“Assuming the Appellants 

possessed some constitutionally protected interest in continued enrollment, they were not 

deprived of such an interest . . . .”).

In the absence of binding precedent, Sheppard advances that under Virginia law, he 

had an implied contract with VSU under its Student Code of Conduct such that he cannot

be subject to arbitrary or haphazard suspensions without notice or opportunity to be heard. 

But Sheppard fails to point to any Virginia state law to support his theory. And our review, 

though admittedly only revealing trial court cases, if anything, suggests state law does not 

support Sheppard’s view. See Bryarly v. Shenandoah Univ., 41 Va. Cir. 238 (Cir. Ct. of 

Va., City of Winchester Jan. 31, 1996) (stating that “assuming arguendo the Plaintiff’s 

contention that the Policy Manual was a contract,” there was still no breach of contract); 

Faculty for Responsible Change v. Visitors of Madison Univ., 38 Va. Cir. 159 (Cir. Ct. of 
17

Va., Rockingham Cnty. Oct. 5, 1995) (finding governance procedures of the James 

Madison University Faculty Handbook “expressed the parties’ hopes and expectations with 

respect to faculty reorganizations and curriculum changes, but, as applied to the facts of 

this case, they are not an enforceable contract between the defendant and the faculty”).9

Sheppard also argues he had a property interest in “VSU’s policies and procedures.” 

But we have held that mere “[v]iolations of . . . school procedures are insufficient by 

themselves to implicate the interests that trigger a federal due process claim.” Kowalski v. 

Berkeley Cnty. Schools, 652 F.3d 565, 576 (4th Cir. 2011) (internal quotation marks, 

citation and alterations omitted). 

Against this landscape, we conclude the right Sheppard asserts was not clearly 

established. The Supreme Court and this Court’s assumptions, without express recognition, 

hardly amount to a clearly established right. Sheppard, in fact, admits as much. See 

Opening Brief of Appellant at 16 (“It has been an open question whether students enjoy a 

property interest in higher education that affords due process protection for academic or 

disciplinary misconduct sanctions.”). Further, Sheppard’s additional arguments regarding 

an implied contract or general property interest in policies and procedures underscore the 

9 And federal courts, interpreting Virginia law, provide no clear support for 

Sheppard’s theory. Sheppard, in his brief, cites conflicting authority. Compare Doe v. 

Marymount Univ., 297 F. Supp. 3d 573, 587–88 (E.D. Va. 2018) (finding “[u]nder Virginia 

law, a University’s student conduct policies are not binding, enforceable contracts; rather, 

they are behavior guidelines that may be unilaterally revised . . . at any time”), with Doe v. 

Alger, 175 F. Supp. 3d 646, 658 (W.D. Va. 2016) (stating that while a student rights policy 

“may not itself create enforceable contract rights, it may nevertheless bear on whether [the 

student] had an entitlement to continued enrollment”). 
18

unestablished nature of any right. We agree with the district court that Debose is entitled 

to qualified immunity because there was no clearly established right to continued 

enrollment in higher education, and, having so concluded, we need not evaluate whether 

or not Sheppard received procedural due process.

III.

In sum, Sheppard has failed to plead sufficient facts establishing a violation of Title 

IX or the Equal Protection clause. As to his due process claim, Debose is entitled to 

qualified immunity because there is no clearly established right to continued enrollment in 

higher education. Accordingly, we affirm the district court’s dismissal. 

AFFIRMED