Alan C. Milstein (Pro Hac Vice)

SHERMAN, SILVERSTEIN, KOHL, ROSE &

PODOLSKY, P.A.

308 Harper Drive, Suite 200

Moorestown, NJ 08057

Telephone: 856-662-0700

E-Mail: amilstein@shermansilverstein.com

Marianne Dugan (OSB #932563)

259 E. 5th Avenue, Suite 200-D

Eugene, OR 97401

Telephone: 541-338-7072

E-Mail: mdugan@mdugan.com

Attorneys for Plaintiff Brandon Austin

Alex Spiro (Pro Hac Vice)

BRAFMAN & ASSOCIATES

767 Third Avenue

New York, NY 10017

Telephone: 212-750-7800

E-Mail: aspiro@braflaw.com

Brian Michaels (OSB #925607)

259 East Fifth Avenue, Suite 300-D

Eugene, OR 97401

Telephone: 541-687-0578

E-Mail: brian@brianmichaelslaw.com

Attorneys for Plaintiffs Dominic Artis and

Damyean Dotson

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

BRANDON AUSTIN,

Plaintiff,

v.

UNIVERSITY OF OREGON; SANDY 

WEINTRAUB; CHICORA MARTIN; 

ROBIN HOLMES; and MICHAEL R. 

GOTTFREDSON, all in their individual 

capacities only,

Defendants.

Case Nos.:

6:15-cv-02257-MC (Lead Case)

6:16-cv-00647-MC (Member Case)

JURY TRIAL DEMANDED

PLAINTIFFS’ MEMORANDUM IN 

OPPOSITION TO THE

DEFENDANTS’ MOTION TO 

DISMISS

DOMINIC ARTIS and DAMYEAN 

DOTSON,

Plaintiffs,

v.

ORAL ARGUMENT REQUESTED

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 1 of 50
UNIVERSITY OF OREGON; SANDY 

WEINTRAUB; CHICORA MARTIN; 

ROBIN HOLMES; and MICHAEL R. 

GOTTFREDSON,

Defendants.

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 2 of 50
Page i – Table of Contents

TABLE OF CONTENTS

Table of Contents ........................................................................................................................... i

Table of Authorities ...................................................................................................................... ii

Introduction .................................................................................................................................... 1

Statement of the Facts .................................................................................................................... 8

Legal Argument ........................................................................................................................... 26

1. The Plaintiffs’ TAC States a Plausible, and Compelling, Claim for 

Violations of Title IX of the Education Amendments of 1972, 

20 U.S.C. § 1681, et seq. ...................................................................................... 26

a. Introduction .............................................................................................. 26

b. The Pleading Standard for Title IX Claims ............................................. 27

c. The Plaintiffs Have Stated a Plausible, and Compelling, Claim for 

Violations of Title IX ............................................................................... 33

2. The Plaintiffs’ TAC States a Plausible, and Compelling, Equal Protection

Claim .................................................................................................................... 38

3. The Plaintiffs’ TAC States a Plausible, and Compelling, Claim for

Negligence ............................................................................................................ 39

4. The Plaintiffs’ TAC States a Plausible, and Compelling, Claim for

Breach of Contract ............................................................................................... 42

Conclusion ................................................................................................................................... 44

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 3 of 50
Page i – Table of Authorities

TABLE OF AUTHORITIES

FEDERAL CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................ passim

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................ passim

Doe v. Alger, et al., Docket No. 5:15-cv-00035, 2016 WL 7429458 (W.D. Va. 

December 23, 2016) ................................................................................................................... 7, 8

Doe v. Brown University, Docket No. 15-144 S, 2016 U.S. Dist. LEXIS 21027 (D.R.I. 

February 22, 2016) ................................................................................................................. 28, 29

Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016) ................................................... passim

Doe v. Salisbury University, Docket No. JKB-15-517, 2015 U.S. Dist. LEXIS 110772 

(D. Md. Aug. 21, 2015) ................................................................................................................ 34

Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994) .......................................................... 28, 29, 37

Emeldi v. University of Oregon, 673 F.3d 1218 (9th Cir. 2012) ......................................... passim

Emeldi v. University of Oregon, 698 F.3d 715 (9th Cir. 2012) (en banc) ........................... passim

Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) ..................................................... 31

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ..................................................... 1, 31

Orneglas-Morales v. United States, Docket No. 3:15-cv-02304-SI, 2015 U.S. Dist. LEXIS 

168575 (D. Or. 2015) ..................................................................................................................... 8

Perry v. Sindermann, 408 U.S. 593 (1972) ................................................................................ 7, 8

Stanley v. Trustees of California State University, 433 F.3d 1129 (9th Cir 2006) ............... 26, 27

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ..................................................................... 1

Wells v. Xavier University, 7 F. Supp. 3d 746 (S.D. Ohio 2014) ......................................... 29, 34

Wilson v. Hewlett-Packard Co., 668 F.3d 1136 (9th Cir. 2012) ................................................... 8

STATE CASES

Davidson v. Univ. of North Carolina at Chapel Hill, 543 S.E.2d 920 (N.C. App. 2001) ...... 39, 40

Doe v. Brandeis University, 177 F. Supp. 3d 561 (D. Mass. 2016) ............................................ 44

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 4 of 50
Page ii – Table of Authorities

Kavanagh v. Trs. of Boston University, 795 N.E.2d 1170 (Mass. 2003) .................................... 41

Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993) ............................................. 41

UNITED STATES CODE

20 U.S.C. § 1681, et seq. .............................................................................................................. 26

20 U.S.C. § 1681(a) ............................................................................................................... 26, 27

20 U.S.C. § 1687 .......................................................................................................................... 27

42 U.S.C. § 2000e, et seq. ............................................................................................................ 27

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 5 of 50
Page 1 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

INTRODUCTION

Plaintiffs Brandon Austin, Dominic Artis, and Damyean Dotson (collectively, 

“Plaintiffs”), by and through the undersigned counsel, respectfully submit this memorandum in 

opposition to the motion to dismiss (“Motion”) filed on behalf of Defendants University of Oregon, 

Sandy Weintraub, Chicora Martin, Robin Holmes, and Michael R. Gottfredson (collectively, 

“Defendants”). 

This Court’s September 8, 2016, Order allowing the Plaintiffs to re-plead (“September 8 

Order”) stated, in pertinent part, at page 15: 

Even taking all inferences in Plaintiffs’ favor, their allegations of 

selective enforcement fall short of satisfying the pleading standards 

mandated by Twombly1 and Iqbal2. First, the University’s decision 

to investigate the female’s claims and suspend Plaintiffs does not 

give rise to an inference of gender discrimination simply because 

the District Attorney did not criminally prosecute Plaintiffs. 

Second, even assuming that President Gottfredson’s statements 

were biased toward the accuser, Plaintiffs have not established that 

they were grounded in sexism or gender bias or that they had any 

substantive bearing on the review process. As such, Plaintiffs fall 

short of plausibly alleging that Defendants selectively enforced the 

code of student conduct against Plaintiffs due to their sex.

In Bell Atlantic Corp. v. Twombly, the United States Supreme Court, following 

citations to Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and its interpretation of 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provided this conclusion when 

analyzing a motion to dismiss: 

Here, in contrast, we do not require heightened fact pleading of 

specifics, but only enough facts to state a claim to relief that is 

plausible on its face. Because the plaintiffs here have not nudged 

their claims across the line from conceivable to plausible, their 

complaint must be dismissed.3

																																																												 1 See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). 2 See Ashcroft v. Iqbal, 556 U.S. 662 (2009). 3 See Twombly, 550 U.S. at 570 (emphasis added).		

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 6 of 50
Page 2 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

In Iqbal, the Supreme Court explained:

Two working principles underlie our decision in Twombly. First, 

the tenet that a court must accept as true all of the allegations 

contained in a complaint is inapplicable to legal conclusions. 

Threadbare recitals of the elements of a cause of action, supported 

by mere conclusory statements, do not suffice. ... Rule 8 marks a 

notable and generous departure from the hyper-technical, codepleading regime of a prior era, but it does not unlock the doors of 

discovery for a plaintiff armed with nothing more than 

conclusions. ... Second, only a complaint that states a plausible 

claim for relief survives a motion to dismiss. Determining whether 

a complaint states a plausible claim for relief will, as the Court of 

Appeals observed, be a context-specific task that requires the 

reviewing court to draw on its judicial experience and common 

sense. ... But where the well-pleaded facts do not permit the court 

to infer more than the mere possibility of misconduct, the complaint 

has alleged—but it has not “show[n]”—“that the pleader is entitled 

to relief.” Fed. Rule Civ. Proc. 8(a)(2).4

The key principles for this Court to consider in this case are eloquently distilled in this 

emphasized quotation from Iqbal: the pleadings must be sufficient to “unlock the doors of 

discovery for a plaintiff.”5 Amongst many other elements of the Plaintiffs’ Third Amended 

Complaint (“TAC”) which qualify the pleadings to move “across the line from conceivable to 

plausible”6 are the declarations of numerous prominent local attorneys involved in University of 

Oregon proceedings, which declarations make clear that there is much relevant information to be 

learned in unlocking the doors of discovery. This evidence, to be taken as true, is more than 

sufficient to move the pleadings from conceivable to plausible. 

The Defendants seek to undermine the value, content, and context of these attorneys’ 

declarations by presenting more of a summary judgment posture than a motion to dismiss, as 

though there had already been discovery (which there has not), and that plaintiffs have only these 

																																																												 4 See Iqbal, 556 U.S. at 678-79 (bracketing in original) (emphasis added).

5 See id.

6 See Twombly, 550 U.S. at 570.

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 7 of 50
Page 3 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

declarations after discovery. An example of this type of presentation by the Defendants can be 

found at page 17 of their brief, in analyzing the declaration of Laura Fine Moro (emphasis added):

In her declaration, Fine Moro states that “in [her] experience and in 

the experience of [her] peers as reported to [her], the female accuser 

is always believed and the male accused is never believed.” (Compl. 

¶ 79.) Fine Moro’s statement, however, merely reflects (1) the 

opinion of one attorney who has represented students—including 

one of the plaintiffs—in University hearings and (2) a statement of 

hearsay concerning the purported experiences of other attorneys. It

does not constitute factual allegations of bias.

As an attorney, Ms. Fine Moro is an officer of the court. At this phase, when the allegations 

of the Complaint (and its incorporated exhibits) must be taken as true, her statements regarding 

her own experience constitute sufficient factual allegation of University bias. The Defendants’ 

use of the word “merely” is simply editorializing, and adds nothing to the analysis at this stage. 

Ms. Fine Moro did in fact specifically address actual instances which she witnessed as an attorney.7

Further, the Defendants glossed over several important, highly specific points made by attorney 

Fine Moro and the other officers of the court who submitted declarations to accompany the TAC. 

As set forth in ¶¶ 78-80 of the TAC, Ms. Fine Moro avers that she represented a female student at 

the University who was alleged to have committed sexual misconduct. The female student was 

arrested and pled guilty to a variety of criminal acts against a male student, including menacing as 

domestic violence and reckless endangerment. As alleged in the TAC, supported by Ms. Fine

Moro’s sworn declaration:

I assisted her through the Title IX investigation interview and 

disclosed the outcome of her criminal case to the investigator.

Following that, no further action was taken by the UO that I am 

aware of.8 

																																																												 7 See Plaintiffs’ Third Amended Complaint, a true and correct copy of which is attached as 

Exhibit “A,” ¶ 78-80; see also Exhibit A, Exhibit 2 thereto. 8 See Exhibit A, ¶ 78; see also Exhibit A, Exhibit 2 thereto. 

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 8 of 50
Page 4 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

This averment alone – an actual instance of gender bias in the extreme when compared to 

the fate suffered by the Plaintiffs, and the other examples set forth in the attorneys’ declarations 

which are incorporated by reference into the TAC – remedies many of the deficiencies the Court 

felt were present in the Second Amended Complaint. 

The sworn declarations of the officers of the court which are incorporated into the TAC 

are sufficient to allow this court to unlock the doors of discovery. These pieces of evidence, even 

though evidence is not required at this phase, make clear that it is likely that behind those doors 

there will be found evidence to support the Plaintiffs’ claims under Title IX, including selective 

enforcement and erroneous outcome; equal protection; and due process.

9

 

The same attempts to diminish the credibility afforded an officer of the court were directed 

at attorney Lissa Casey. At page 17 of their brief, the Defendants attempt to minimize Ms. Casey’s 

sworn statement, based upon her firsthand experience, by characterizing it as solely being a

“professional opinion.” To the contrary, as set forth in ¶ 81 of the TAC, she averred:

I have previously suggested that the University provide 

unbiased officers to preside over Administrative Conferences, 

which the University has responded to with denials. The 

investigators at the University are also the decision-makers about 

their own investigations.

When I have attempted to investigate accusations by 

attempting to interview witnesses, I have been threatened with 

additional student conduct allegations of “retaliation” against my 

client.10 

The same is true of the Defendants’ handling of Mr. Veralrud’s declaration, at page 14 of 

their Motion. Said declaration describes quite pointedly:

																																																												 9 The Plaintiffs hereby incorporate their pending motion to reconsider this Court’s 

dismissal of their 42 U.S.C. § 1983 due process claim.

10 See Exhibit A, ¶ 81; see also Exhibit A, Exhibit 3 thereto. 

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 9 of 50
Page 5 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

Even without that information, in the report that I viewed, I 

recall the report was broad enough and contained so much evidence 

corroborating the male students’ account that I was surprised at the 

investigator’s conclusion that nonconsensual sexual contact had 

occurred without any explanation or effort to explain the 

contradictory evidence.11

Defendants’ dismissive attitude toward Brian Michaels’ declaration about the actual 

existence of discoverable information contained in depositions in a prior case, specifically 

including named Defendants, which depositions are under protective order, underscores the 

“Catch-22” aspect of the Defendants’ Motion. On the one hand, the Defendants refuse to 

allow the depositions from the prior case to be received by this Court under protective order, 

and then on the other state that Mr. Michaels’ declaration should be ignored because “[t]his 

is not a factual allegation and does not meet the pleading standard.” 

The Plaintiffs have exceeded the Twombly/Iqbal standard for alleging facts plausible 

enough to open the doors of discovery. 

On pages 14-15 of its September 8 Order, this Court observed (emphasis added):

A Tennessee district court held that a selective enforcement claim 

such as the one Plaintiffs bring here requires evidence that a female 

in similar circumstances to the male student bringing the claim was 

treated more favorably by the University against which selective 

enforcement is alleged. See, e.g., Doe v. Univ. of the South, 687 F. 

Supp. 2d 744, 756 (E.D. Tenn. 2009). Doe v. Brown Univ. went 

forward on a similar theory of discrimination, but the theory was 

bolstered by pointed allegations in the complaint including, but not 

limited to, former university employees attesting to a pattern of 

gender bias as well as statements by current professors supporting 

the gender bias allegations. No. 15-144, 2016 WL 715794, *8-9 

(D.R.I. Feb. 22, 2016). No such allegations are present here.

Similarly, on pages 18-19, under the section titled “Erroneous Result,” the Order analyzed 

the relevance of the District Attorney’s Office declining to prosecute (emphasis added): 

																																																												 11 See Exhibit A, ¶ 77; see also Exhibit A, Exhibit 1 thereto. 

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 10 of 50
Page 6 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

For the same reasons that Plaintiffs’ selective enforcement 

claim fell short, I find that Plaintiffs fail to plausibly allege that the 

University was deliberately indifferent to their rights. First, the 

standard of proof required for a University investigation and 

suspension based on its code of conduct is entirely different from 

the DA's standard to prosecute a criminal case. Second, 

Plaintiffs continue to allege that the University is gender-biased but 

fail to allege specific facts supporting that theory. Instead, Plaintiffs 

merely posit, without reason or alleged facts, that the University 

would not have investigated or penalized them if they were not male. 

At pages 19-20, the Order expresses the same sentiment with regard to equal protection, citing 

Twombly and Iqbal. 

By way of response, the Plaintiffs substantially amplified their pleading to include 

numerous additional allegations demonstrating the presence of the University’s gender bias against 

the male basketball players in this specific instance, including the fact that internal and external 

scrutiny by students and the media caused the University of Oregon to take punitive action against 

the male athletes solely on the basis of their sex/gender (notwithstanding the fact that the accuser 

was plainly not telling the truth, and the male basketball players had plainly not engaged in any 

culpable conduct) in an effort to combat widespread public perception, both locally and nationally, 

that the University was not tough enough on male individuals or male athletes accused of sexual 

assault. Additionally, the Plaintiffs submitted the declarations of the four officers of the court

attached to and incorporated within the TAC. These declarations not only must be taken as true at 

this phase, they must be given the deference that is due to the status of the declarants, based on 

their many years of experience dealing with University of Oregon student conduct matters. In 

particular, the facts set forth by Ms. Fine Moro make clear there is sufficient evidence to make 

plausible the allegation that male students are always treated differently from female students when 

it comes to the University of Oregon student conduct system. Ms. Fine Moro’s female client was 

not only prosecuted, but actually pled guilty to crimes of violence and harm, yet the University 

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 11 of 50
Page 7 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

declined to prosecute her under the same student conduct code that the Plaintiffs were prosecuted 

under. At this pleading stage, Plaintiffs have presented more than sufficient allegations that gender 

bias exists in the University student conduct system, and have pled sufficient facts to move their 

allegations from speculation to plausible. 

Tellingly, the University fails to cite or even acknowledge Emeldi v. University of Oregon, 

wherein the Ninth Circuit held or at least strongly suggested that the pleading standard for Title 

IX claims is akin to the minimal pleading standard applicable to Title VII claims.

12 Regardless of 

the standard, the amplified factual allegations within the TAC, and the numerous attorney 

declarations discussed therein and attached thereto, provide ample evidence of the University’s 

extreme sex/gender bias. Indeed, the TAC plausibly pleads that the University’s disciplinary 

actions in this instance, as in others, were motivated by bias against males on the basis of 

sex/gender, giving rise to a Title IX and equal protection claim. 

As further discussed below, this Court should reject the Defendants’ assertion that the 

Plaintiffs’ negligence claim, as now pled, fails due the lack of a “special relationship” between the 

athletes and the University, and this Court should further reject the Defendants’ baseless attack on 

the Plaintiffs’ breach of contract claim. On December 23, 2016, the Honorable Elizabeth K.

Dillon, U.S.D.J. of the Western District Of Virginia-Harrisonburg Division, held that continuing 

education is a protected property interest worthy of due process. In Doe v. Alger, et al., Docket 

No. 5:15-cv-00035, 2016 WL 7429458 (W.D. Va. December 23, 2016), Judge Dillon noted: “In 

																																																												 12 See Emeldi v. University of Oregon, 673 F.3d 1218, 1223 (9th Cir. 2012); see also

Emeldi v. University of Oregon, 698 F.3d 715 (9th Cir. 2012) (en banc) (Kozinski, J., dissenting) 

(emphasis added) (“Under the established Title VII pleading framework, which the majority 

applies to this Title IX case ... .”); accord Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016)

(holding that a Title IX complaint, like a Title VII complaint, must simply “meet[] the low standard 

... of alleging facts giving rise to a plausible minimal inference of bias sufficient to survive a 

motion to dismiss”).

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 12 of 50
Page 8 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

Perry v. Sindermann, 408 U.S. 593 (1972), the Court recognized that, even where there was no 

statute and no contract provision conferring a property interest, one might exist.”13 While the court 

also noted Perry involved an employment contract, the court found an implied-in-fact contact 

existed between the student and James Madison University.

14 The court further held: 

Here, as already shown, the admissions of defendants show a clear 

and mutual assent to an entitlement based on a mutual 

understanding. Both defendants (as well as Doe) have stated their 

understanding that, as long as Doe maintained sufficient academic 

progress, paid tuition and applicable fees, and did not commit a 

conduct violation, he had an “entitlement” to continued enrollment 

at JMU, and thus a protectable property interest. The court’s 

conclusion is also supported by JMU’s long-standing practice of not 

suspending or expelling students except for cause, as both 

defendants acknowledged in their depositions.

15

The Motion should be denied in its entirety.

STATEMENT OF THE FACTS

“In evaluating the sufficiency of a complaint’s factual allegations, the court must accept as 

true all well-pleaded material facts alleged in the complaint and construe them in the light most 

favorable to the non-moving party.”16 Notwithstanding this bedrock principle, the Defendants 

transparently attempt to downplay the compelling facts of this matter as pled in the TAC, and 

substitute a narrative that clearly does not represent the facts of this matter viewed in the light most 

favorable to the Plaintiffs. The actual facts are as follows. 

																																																												 13 See Doe v. Alger, et al., Docket No. 5:15-cv-00035, 2016 WL 7429458, at *10 (W.D. 

Va. December 23, 2016), a true and correct copy of which is attached as Exhibit “B.”

14 See id. at *12-13. Alger was decided at the summary judgment stage, where the plaintiffs 

of course face a much more stringent standard than at the motion to dismiss stage. 

15 See id. This analysis would likewise apply to the Plaintiffs’ motion to reconsider the 

dismissal with prejudice of their due process claim, as it applies to the scholarship language. 

16 See, e.g., Orneglas-Morales v. United States, Docket No. 3:15-cv-02304-SI, 2015 U.S. 

Dist. LEXIS 168575, at *2 (D. Or. 2015) (citing Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 

1140 (9th Cir. 2012)) (additional citation omitted).

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 13 of 50
Page 9 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

I.

The Plaintiffs were formerly matriculated students at the University of Oregon

(“University” or “Oregon”).

17 The Defendant University is, and was at all relevant times, an 

institution of higher education chartered and existing pursuant to the laws of the State of Oregon, 

located in Eugene, Oregon.18 

During his high school basketball career in Philadelphia, Mr. Austin helped his school win 

three straight titles.19 As one of the top fifty or so prospects in the nation, Mr. Austin was recruited 

by multiple universities, and received offers to play basketball at multiple universities; Mr. Austin

ultimately chose to attend Providence College (“Providence”) and play basketball for the 

Providence Friars.20 During the Fall 2013 semester, Mr. Austin was suspended from the basketball 

team for thirty days.

21 Providence pleaded with Mr. Austin to stay, but Mr. Austin was recruited 

by the University of Oregon, and chose to transfer from Providence to Oregon.

22 Prior to the 

Spring 2014 Semester, Mr. Austin matriculated at Oregon and became a member of the Oregon 

Ducks men’s college basketball team (“Ducks”), which competes at the NCAA Division I level 

and is a member of the Pacific-12 Conference.23 The TAC sets forth separate allegations regarding 

the recruitment and playing abilities of the other Plaintiffs.24

																																																												 17 See Exhibit A, ¶ 4. 

18 See Exhibit A, ¶ 5.

19 See Exhibit A, ¶ 12.

20 See Exhibit A, ¶ 12.

21 See Exhibit A, ¶ 12.

22 See Exhibit A, ¶ 12.

23 See Exhibit A, ¶ 12.

24 See Exhibit A, ¶¶ 10, 11.

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 14 of 50
Page 10 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

In order to induce and entice the Plaintiffs to attend Oregon and play for the Ducks, Oregon 

provided them with an athletic scholarship.25 The basketball players had the objectively 

reasonable expectation, based upon the express and implied terms of the contractual relationship 

governing the athletic scholarship, that the University would renew the scholarship, and not act so 

as to deprive the basketball players of the fruits of the scholarship, and otherwise act in good faith 

vis-à-vis scholarship.26 

Mr. Austin, Mr. Artis, and Mr. Dotson attended an off-campus party on or around March 

8, 2014.27 After about an hour and a half, a female student approached the basketball players and 

began “twerking” for them.28 Subsequently, the female student went into a bathroom with the 

basketball players and initiated consensual sexual activity.

29 The three individuals then left the 

bathroom together.30 Numerous individuals at the party witnessed the female student interacting 

with the basketball players both before and after the sexual activity in the bathroom.

31 These 

individuals would have testified under oath that the female student gave absolutely no indication 

that she was sexually assaulted, or even upset, and insisted on remaining with the basketball 

players even after they left the bathroom.

32 Later in the evening, the female student chose to go to 

the apartment of one of the basketball players, along with all three basketball players.33 She was 

laughing and joking as she left the party with the basketball players and entered a taxicab with 

																																																												 25 See Exhibit A, ¶¶ 12, 14.

26 See Exhibit A, ¶¶ 15-16.

27 See Exhibit A, ¶ 17.

28 See Exhibit A, ¶ 18.

29 See Exhibit A, ¶ 19.

30 See Exhibit A, ¶ 19.

31 See Exhibit A, ¶ 20.

32 See Exhibit A, ¶ 20.

33 See Exhibit A, ¶ 21.

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 15 of 50
Page 11 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

them.

34 At least one female witness would have testified under oath that she offered the female 

student a ride, which the female student declined.35 At no time did this witness observe any 

reluctance on the part of the female student, or any aggression on the part of the players.36

Upon arrival at the apartment, the female student stated that she needed to get into 

something comfortable.37 Subsequently, the student voluntarily took her clothes off, whereupon 

she voluntarily engaged in “group” sexual activity with the other players.38 At one point, the 

female student became teary-eyed, at which point the basketball players chose to immediately 

cease any sexual activity.39 Soon after, she was again laughing and joking.40 The female student 

chose to stay overnight at the apartment, and had sexual intercourse with one of the other players 

after waking up in the morning.41 Thereafter, the player sent the female student home in a cab, 

and she sent a text message stating “thanks for getting me home.”

42

At no point did the female student appear to be intoxicated.43 At no point did the female 

student say “no” about any sexual activity, even when she became teary-eyed (after which, in any 

event, the sexual activity immediately ceased).

44 The female student expressed verbal consent 

and/or gave unmistakable physical indications of her desire to participate in sexual contact with 

the young men at the times they were engaged in sexual conduct.45

																																																												 34 See Exhibit A, ¶ 21.

35 See Exhibit A, ¶ 21.

36 See Exhibit A, ¶ 21.

37 See Exhibit A, ¶ 22.

38 See Exhibit A, ¶ 23.

39 See Exhibit A, ¶ 24.

40 See Exhibit A, ¶ 24.

41 See Exhibit A, ¶ 25.

42 See Exhibit A, ¶ 26.

43 See Exhibit A, ¶ 27.

44 See Exhibit A, ¶ 28.

45 See Exhibit A, ¶ 29.

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 16 of 50
Page 12 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

II.

Within a day or two, however, the female student began making false, scandalous, and 

malicious accusations about all three basketball players, including the utterly false accusation that 

the players dragged her into the bathroom and assaulted her; the utterly false accusation that the 

players wrestled her into a car, forced her to get drunk, and drove her to the apartment; and the 

utterly false accusation that she was raped at the apartment.46 Thereafter, the accuser made 

numerous inconsistent statements to the Eugene Police Department regarding her sobriety, the 

events and conversations leading up to the sexual conduct, and the actual actions, words, and 

behavior of those involved during sexual contact.47 

When the University learned that the basketball players had been accused of rape, 

Defendant Chicora Martin, the Assistant Dean of Students at the University, suspended those 

individuals on an “emergency” basis, and scheduled an “emergency” hearing to expel the players.

48 

That emergency suspension was then modified to allow the players to attend classes and basketball 

practice.49

On April 14, 2014, the Lane County District Attorney (“District Attorney”) determined 

that she would not be pressing charges against Mr. Austin or any of the basketball players “because 

the conflicting statements and actions by the victim make this case unprovable as a criminal 

case.”

50 In or around late April, the Oregonian published the police report that the female student 

had made.

51 The next evening, the District Attorney’s office issued a lengthy document outlining 

																																																												 46 See Exhibit A, ¶ 30.

47 See Exhibit A, ¶ 31.

48 See Exhibit A, ¶¶ 7, 32.

49 See Exhibit A, ¶ 33.

50 See Exhibit A, ¶ 34 (emphasis added).

51 See Exhibit A, ¶ 35.

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numerous weaknesses in the prosecution’s case, as well as numerous inconsistencies in the 

accuser’s statements, and concluding that those weaknesses presented “an insurmountable barrier 

to prosecution.”

52 In their TAC, unlike their prior pleading, the Plaintiffs specifically allege that 

the District Attorney’s office concluded, in pertinent part, as follows:

A) Although the alleged victim reports being impaired by alcohol 

prior to any sexual contact, there is no evidence, from her or from 

others, that suggests she had enough to drink to become 

substantially impaired prior to the first two sexual encounters in the 

bathroom. There is also no independent behavioral evidence that 

the victim appeared significantly impaired: nobody reports her 

having slurred speech, difficulty walking or any other symptom of 

impairment from intoxication at any point in the evening.

B) Friends and associates of the alleged victim describe her as 

friendly and flirtations, both before and after the first and second 

alleged assaults in the party-house bathroom. Moreover, all 

witnesses agree the alleged victim had the opportunity to leave the 

party, or at least ask for help, after the first series of sexual assaults. 

Friends and others report her “walking and talking fine” both before 

and after both sex-in-the-bathroom events.

C) The alleged victim recalls extensive detail about all aspects of the 

evening, including the timing, order of events - even the exact 

amount of the cab fare and her decision to have another drink of 

alcohol during the ride to the alleged assailants’ residents, and most 

of the detail is consistent with the events reported by others (so she 

does not appear to have been affected to the point of perception or 

memory impairment. Similarly, there’s no evidence she was ever 

unconscious during the sex acts, nor is there any evidence she was 

ever impaired to the point where it adversely effected her balance or 

stability.)

D) The alleged assailants stopped the sex acts several times - first 

when the alleged victim asked for a drink of water, next when the 

alleged victim said she “had to go” and, finally, at the second 

residence, when the alleged victim started crying (the first point at 

which suspects claim they realized she wasn’t “in to it”).

																																																												 52 See Exhibit A, ¶ 36.

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E) Victim returned to isolated locations with her alleged assailants 

repeatedly, although she had friends nearby and she was in a 

crowded party.

F) Telephone calls between the alleged victim and alleged assailants 

were recorded surreptitiously. The contents of those conversations 

are consistent with suspect’s version of consensual sex, or at least 

their belief it was consensual sex.)

G) Friends of the alleged victim say she did not appear to be 

impaired by alcohol at any time during the evening.

H) Alleged victim had consensual sex with one of the suspects the 

morning after the alleged assaults and, later the same day, she had 

sex with another friend.

I) The crimes are reported by victim’s father days after the alleged 

assaults took place and alleged victim is angered by the reporting 

(because of timing).

J) Alleged victim indicated a desire to only have her assailants’

“wrists slapped”, not ruin their lives.

K) Assailant interviews with police are consistent with recording 

made without their knowledge and the statements of other witnesses

None of the above would be individually inexplicable, but 

collectively, and in the absence of additional evidence, they provide 

an insurmountable barrier to prosecution.53

This information was known to the Defendants well prior to May 9, 2014.54 

In this Court’s September 8 Order, it held that the Second Amended Complaint lacked a 

“logical nexus that connects the failure to criminally prosecute with gender bias on the part of 

Defendants.” The TAC contains the following “logical nexus.” 

Following the publication of the police reports by the Oregonian and the District Attorney’s 

statement explaining why the basketball players were not prosecuted, widespread protests occurred 

																																																												 53 See Exhibit A, ¶ 37.

54 See Exhibit A, ¶ 40.

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on the University’s campus attempting to pressure the University into taking action against the 

male basketball players on the basis of their sex/gender.

55 These protests occurred both generally 

and outside the office of Defendant Michael R. Gottfredson (the President of the University) in 

Johnson Hall (the main administration building at the University).56 On one occasion, protesters 

held signs with such slogans as “It’s Not OK to Slut Shame,” “I Live in a Rape Culture,” “UO: 

Expel Rapists,” “Dana Altman $25K Bonus for Ignoring Rape,” “Trust Survivors,” and “Passes 

on a Court Free Pass from the Courts.”57 An Associated Press photo, included within the TAC at 

¶ 41, documented the scene:

The protests received extensive press coverage in the local and national media, and cast the 

University and its employees, including Dr. Gottfredson, in a negative light for failing to punish 

the basketball players, and the University and its employees, including Dr. Gottfredson, were 

																																																												 55 See Exhibit A, ¶ 38.

56 See Exhibit A, ¶ 40.

57 See Exhibit A, ¶ 41.

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aware of the foregoing.

58 These signs, using extremely loaded phrases such as “slut shame” (a 

phrase widely understood to mean criticizing or punishing a woman for engaging in sexual 

activity) and “rape culture” (another widely understood term “that was coined by feminists in the 

United States in the 1970’s ... designed to show the ways in which society blamed victims of 

sexual assault and normalized male sexual violence”) unambiguously suggested that the University 

had declined to punish the male students accused of rape, solely on the basis of their sex/gender.

59 

These signs and protests had the actual effect of pressuring the University to take punitive 

action against the male basketball players solely on the basis of their sex/gender (notwithstanding 

the fact that the accuser was plainly not telling the truth, and the male basketball players had plainly 

not engaged in any culpable conduct) in an effort to combat widespread public perception, both 

locally and nationally, that the University of Oregon was not tough enough on male individuals or 

male athletes accused of sexual assault.

60 Additionally, a psychology professor at the University, 

Jennifer J. Freyd, Ph.D., had “published a study in 2013 based on a survey of UO [University of 

Oregon] students examining whether an institution’s failure to prevent sexual assault or respond 

supportively could exacerbate a survivor’s trauma. The study found that when women experienced 

a phenomenon Freyd calls institutional betrayal, they reported increased levels of anxiety, 

suggesting that ‘institutions have the power to cause additional harm to survivors.’”

61 Prior to 

May 9, 2014, Dr. Freyd repeatedly spoke out against the University’s handling of the situation

involving Mr. Austin and the basketball players, and a protest led by and/or publicly endorsed by 

Dr. Freyd occurred at noon on May 8, 2014.

62

																																																												 58 See Exhibit A, ¶ 42.

59 See Exhibit A, ¶ 43.

60 See Exhibit A, ¶ 44.

61 See Exhibit A, ¶ 45.

62 See Exhibit A, ¶ 46.

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Against this backdrop, at 11:00 a.m. the very next day, Defendant Michael R. Gottfredson 

in effect imposed discipline upon Mr. Austin and the other basketball players without due process, 

solely on the basis of their sex/gender, by holding a press conference and making a public 

statement condemning Mr. Austin and the other basketball players, even though the District 

Attorney had declined to prosecute Mr. Austin and the other basketball players, and the University 

had not started much less concluded the hearing process.63 Despite the fact that the District 

Attorney had cast significant doubt on whether the accuser was telling the truth, Dr. Gottfredson 

stated, “The type of behavior in the police report released this week is utterly unacceptable and 

will not be tolerated,” and further stated, “I know it’s frustrating, and we would like to say more, 

but we are not going to violate the laws that are in place to protect students’ privacy or the rights 

of our students – especially the survivor.”

64 Evidencing that the University had prejudged the 

players’ guilt, and done so on the basis of their sex/gender, Dr. Gottfredson’s statement included 

the conclusion that the female accuser was a “survivor” (“survivor” being a loaded word invoking 

sex/gender, in the context now pled and described above), the statement that “as a father, I was 

appalled at what I read” (“as a father” being a loaded code word invoking sex/gender, in the context 

now pled and described above), and the statement that the male individuals would “not be playing 

basketball at Oregon again.”65 These statements were grounded in sexism and/or gender bias, and 

constituted a clear statement on behalf of the University that represented its position in the matter, 

and directly controlled and/or influenced the actions of all other individuals who acted on behalf 

of the University and/or as its actual or apparent agents in taking action against the players.

66 

																																																												 63 See Exhibit A, ¶ 47.

64 See Exhibit A, ¶ 48 (italics in original University transcript).

65 See Exhibit A, ¶ 49.

66 See Exhibit A, ¶¶ 49-50.

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The prior and subsequent actions of the Defendants with regard to Mr. Austin and the other 

basketball players were all taken in response to internal and external compliants and protests that 

the University was not taking strong enough actions against males in cases involving alleged 

sexual misconduct by female students against male students at the University of Oregon.67		

The Plaintiffs plausibly allege that the University, as in Doe v. Columbia, “was motivated 

in this instance to accept the female’s accusation of sexual assault and reject the male’s claim of 

consent, so as to show the student body and the public that the University is serious about 

protecting female students from sexual assault by male students—especially varsity athletes.”68

Ms. Martin again suspended Mr. Austin and the other two basketball players; she 

subsequently modified the suspensions of the other two basketball players, but refused to modify 

Mr. Austin’s suspension because he had exercised Miranda rights during the police investigation.

69 

Almost concurrently, a University student came forward and told a University investigator that she 

personally interacted with the female student throughout the evening in question, the female 

student was not at all intoxicated, and the female student insisted on going home with the 

basketball players, to the point of refusing to leave with her friends.70

III.

At all relevant times, the basketball players had a recognized property interest in (among 

other things) their status as an admitted, matriculated University student in good standing; their

interest in pursuing public higher education and intercollegiate athletic participation; and the 

economic benefit to them in the form of their existing scholarship, a future scholarship at another 

																																																												 67 See Exhibit A, ¶ 51.

68 See Exhibit A, ¶¶ 52-53.

69 See Exhibit A, ¶¶ 54-55.

70 See Exhibit A, ¶ 56.

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Division I school, or a future contract with an NBA team.

71 Additionally, at all relevant times, the 

players also had a recognized liberty interest in (among other things) being in good standing at the 

University, and being free from the stigma associated with being suspended for disciplinary 

reasons. Due process protection “is particularly necessary when, as here, the governmental action 

may damage the individual’s standing in the community, academic or general, or may impose ‘a 

stigma or other disability that foreclose[s] his freedom to take advantage’ of other educational or 

future employment opportunities.”72 At all relevant times, it was clearly established that, given 

the seriousness of the alleged infraction, the possible consequences to the players, and the degree 

of sanction or penalty sought to be imposed, the Fourteenth Amendment to the United States 

Constitution’s guarantee of procedural and substantive due process, and the Oregon Revised 

Statutes, required the Defendants to provide the players with the right to representation by counsel, 

testimony of witnesses under oath, depositions, issuance of subpoenas, cross-examination of 

witnesses, a fundamentally fair proceeding, and other due process protections.73

Counsel for the basketball players, however, were presented with two choices: (1) a “panel 

hearing” at which the University would not provide most or all of the foregoing due process 

protections, except for representation by counsel; or (2) an “administrative conference” at which 

the University would not provide most or all of the foregoing due process protections, except for 

representation by counsel.

74 After the “panel hearing” was scheduled, counsel requested a 

“contested case hearing” which complies with the due process requirements set forth in ORS 

																																																												 71 See Exhibit A, ¶ 58. We recognize that this Court’s prior ruling [Document No. 36] held 

that the allegations in this section did not give rise to a claim under 42 U.S.C. § 1983. See Exhibit 

A, ¶ 58 n.1. This is the subject of a pending reconsideration motion.

72 See Exhibit A, ¶ 59.

73 See Exhibit A, ¶ 60. 

74 See Exhibit A, ¶ 61. 

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351.088, and ORS 183.413-.497 and 183.502.75 Among other things, counsel for the basketball 

players further made clear that, in order to present a defense, the players would need to subpoena 

the numerous witnesses who would testify that the female student gave absolutely no indication 

that she was sexually assaulted, or even upset, and insisted on remaining with the basketball 

players even after they left the bathroom, and two individuals with whom the female student had 

chosen to have sex after just meeting them, evidencing her willingness to engage in sexual activity

with individuals who she just met.76 

The University and its representatives, however, failed to even directly respond to the 

request of counsel for a contested case hearing.

77 Based upon the foregoing, it was clear to the 

basketball players’ counsel that the University and its representatives were not going to grant their 

request for a contested case hearing.

78 Ultimately, as the University was only providing two 

options, neither of which provided the requisite due process, and the University was requiring the 

basketball players to choose between one of the two options, the players’ counsel accepted the 

“administrative conference” option.

79 Counsel was not asked to sign, and did not sign, a waiver 

of the players’ due process rights, and would never have signed such a waiver.

80

The “administrative conference” was ultimately scheduled for May 30, 2014.81 The 

conference turned out to be nothing less than an unconstitutional “kangaroo court” scenario of the 

very worst order, in which the basketball players were deprived of the foregoing rights, and not 

																																																												 75 See Exhibit A, ¶ 62. 

76 See Exhibit A, ¶ 63. 

77 See Exhibit A, ¶ 64. 

78 See Exhibit A, ¶ 65. 

79 See Exhibit A, ¶ 66. 

80 See Exhibit A, ¶ 66. 

81 See Exhibit A, ¶ 68. 

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even provided with a basic opportunity to properly respond to all information provided, and to 

contact and call all relevant and necessary witnesses.82 

Defendant Sandy Weintraub, the Director of Student Conduct & Community Standards at 

the University, ruled against Mr. Austin and the other basketball players, suspending them from 

the University from four to ten years, the functional equivalent of an expulsion from the University, 

and refused to provide due process generally and in the manner described in detail above.

83 

Defendant Robin Holmes, Vice President for Student Life at the University, was charged with the 

responsibility of hearing an appeal.84 Dr. Holmes refused to respond to the request for an appeal 

by the players’ counsel, and did not even return phone calls from counsel.85 

Ultimately, all of the Defendants’ actions, including the foregoing actions, were motivated 

in whole or large part by the fact that Mr. Austin and the other basketball players are males, and 

the accuser is a female.86 Based upon Mr. Austin’s sex/gender, the University deprived Mr. Austin 

of basic due process rights, equal protection rights, and other rights guaranteed by Title IX, and its 

implementing regulations, and by the University’s own stated policies and procedures.87 

In or around January 2015, the female student filed a lawsuit against Oregon, alleging that 

her own Title IX rights had been violated due to Oregon’s alleged “deliberate indifference” to the 

safety of its students.88 Astonishingly, Oregon’s counsel contacted Mr. Austin’s counsel, stated 

																																																												 82 See Exhibit A, ¶ 67. 

83 See Exhibit A, ¶¶ 6, 69. 

84 See Exhibit A, ¶¶ 8, 70. 

85 See Exhibit A, ¶ 71. 

86 See Exhibit A, ¶ 75. 

87 See Exhibit A, ¶ 83. 

88 See Exhibit A, ¶ 84. 

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that had she been consulted as counsel things might have been handled differently, and asked for 

Mr. Austin’s help in defending the suit.89 

IV.

While the foregoing aspects of the Plaintiffs’ TAC move the Plaintiffs’ allegations “across 

the line from conceivable to plausible”90 and “unlock the doors of discovery,”91 the Plaintiffs have 

also attached to and discussed within their TAC attorney declarations demonstrating that Mr. 

Austin and the basketball players are not the only males to have fallen victim to the University’s 

patent discrimination on the basis of sex and gender.92 The declarations of prominent attorneys in 

the field of University proceedings, standing alone, also unlock the doors of discovery. 

Laura Fine Moro, who represented Mr. Austin and has also represented “hundreds of 

University students in various matters,” avers that, in her experience and in the experience of her 

peers as reported to her, the female accuser is always believed and the male accused is never 

believed” by the University.93 She further avers that she has “personally represented male students 

where the evidence was [overwhelming] the conduct was consensual, yet the Title IX investigator 

and the UO have found otherwise,” and her male clients are “universally suspended for some 

period of time as punishment.”94 Based upon her extensive experience, she further avers that the 

University “acts with a presumption against men in their investigations, ignores evidence which 

contradicts female accusers, and treats males found in violation with leniency which is denied to 

similarly situated men.”95 She details an instance of a female UO student who was alleged to have 

																																																												 89 See Exhibit A, ¶ 85. 

90 See Twombly, 550 U.S. at 570. 

91 See Iqbal, 556 U.S. at 678-79.

92 See Exhibit A, ¶¶ 76-82. 

93 See Exhibit A, ¶ 78. 

94 See Exhibit A, ¶ 79. 

95 See Exhibit A, ¶ 80. 

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committed sexual misconduct. The student pleaded guilty to reckless endangerment and 

harassment, and was subsequently placed on probation.96 Ms. Fine Moro “disclosed the outcome 

of [the] criminal case to the [UO] investigator,” but “[f]ollowing that, no further action was 

taken...”97 Lissa Casey, who has also represented students charged with sexual misconduct 

offenses by the University, avers that the University is biased in its decision-making, her attempts 

to investigate accusations have been met with threats of retaliation by the University, and in her 

professional opinion “bias exists at the University ... to find female students’ accusations of sexual 

misconduct credible and to find male students in violation of sexual misconduct pursuant to the 

University’s student conduct code ... .”98 Brian Michaels, local counsel for the two other 

Plaintiffs, avers that, in connection with another case, he took three depositions of University 

employees, which are presently subject to a protective order.99 He avers that “[t]wo of these 

depositions are extremely relevant and helpful to establishing Plaintiffs’ claims under both Due 

Process and Title IX,” though they cannot be discussed further at this time.

100

The Defendants seek to undermine the content and value of these attorneys’ declarations 

by making summary judgment arguments, as though there was discovery and this is all that came 

from that discovery. In analyzing the declaration of Ms. Fine Moro, for example, the University 

alleges that “Fine Moro’s statement ... merely reflects (1) the opinion of one attorney who has 

represented students—including one of the plaintiffs—in University hearings and (2) a statement 

of hearsay concerning the purported experiences of other attorneys. It does not constitute factual 

allegations of bias.” (Emphasis added.) Given that Ms. Fine Moro is an officer of the court, and 

																																																												 96 See Exhibit A, ¶ 8.

97 See Exhibit A, ¶ 8.

98 See Exhibit A, ¶ 81. 

99 See Exhibit A, ¶ 82. 

100 See Exhibit A, ¶ 82. 

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hearsay is not excluded at this stage, her statements based upon her experience, and the experience 

of others, constitute factual allegations of bias. The Defendants’ use of the word “merely” to both 

editorialize about and attempt to diminish the impact of Ms. Fine Moro’s statements is hardly the

appropriate analysis directed toward an officer of the court. This is especially so when considering 

Ms. Fine Moro did in fact specifically address actual instances she witnessed as an attorney. 

Among other things, she avers that she represented one female student at the University who was 

alleged to have committed sexual misconduct; this female student was arrested and actually pled 

guilty to a variety of criminal acts against a male student. Ms. Fine Moro avers, “I assisted her 

through the Title IX investigation interview and disclosed the outcome of her criminal case to the 

investigator. Following that, no further action was taken by the UO that I am aware of.”

101 This 

averment alone, presenting an actual instance of the University’s gender bias in the extreme, 

addresses and remedies many of the issues raised by the Court’s prior order. 

In their Motion, the Defendants attempt to reduce Ms. Casey’s declaration to a

“professional opinion.” In actuality, she avers:

I have previously suggested that the University provide unbiased 

officers to preside over Administrative Conferences, which the 

University has responded to with denials. The investigators at the 

University are also the decision-makers about their own 

investigations.

When I have attempted to investigate accusations by attempting to 

interview witnesses, I have been threatened with additional student 

conduct allegations of “retaliation” against my client.102

The same is true of Defendants’ attempts to dismiss Mr. Veralrud’s declaration, when his 

declaration describes quite pointedly: “Even without that information, in the report that I viewed, 

																																																												 101 See Exhibit A, ¶ 78. 102 See Exhibit A, ¶ 81. 

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I recall the report was broad enough and contained so much evidence corroborating the male 

students’ account that I was surprised at the investigator’s conclusion that nonconsensual sexual 

contact had occurred without any explanation or effort to explain the contradictory evidence.”

103

Finally, the Defendants’ dismissive attitude toward Mr. Michaels’ declaration about the 

actual existence of discoverable information contained in depositions under protective order –

specifically including named Defendants – underscores the absurd aspect of the Defendants’ 

endeavor. On the one hand, they refused to allow the depositions under protective order to be 

received by the Court, and then on the other state that Mr. Michaels’ declaration need be ignored 

because, “This is not a factual allegation and does not meet the pleading standard.”

Similarly, the Plaintiffs allege that another male University student recently filed a lawsuit 

alleging that he was falsely accused of an off-campus sexual assault, and subsequently was given 

given an unfair disciplinary hearing, further demonstrating a pattern and practice on the part of the 

University.104 They allege that the transcript of this hearing demonstrates patent bias on the part 

of Ms. Martin and the University in favor of the female accuser, and against the male who was 

accused, in both the conduct and outcome of the proceeding.105 Ultimately, the female’s testimony 

was believed in the face of overwhelming testimony to the contrary.106

V.

Prior to the Defendants’ actions, the Plaintiffs were regarded as three of the top amateur 

basketball players in the United States; on the men’s basketball team at the Oregon, a Division I 

school within the Pac-12 Conference; and widely projected by experts in basketball and the NBA 

																																																												 103 See Exhibit A, Exhibit A thereto (Declaration of Greg Veralrud).

104 See Exhibit A, ¶ 90. 

105 See Exhibit A, ¶ 90. 

106 See Exhibit A, ¶ 90. 

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Draft to be selected in the first round of the NBA Draft, which would more likely than not be 

accompanied by a multi-million dollar guaranteed contract and tens of millions of dollars in 

prospective economic advantage.107 Prior to taking the actions alleged herein, the Defendants were 

aware of the foregoing facts.108 As a result of the Defendants’ conduct, the Plaintiffs no longer 

play at a Division I school, have diminished chances of playing in the NBA, have been made to 

suffer the opprobrium associated with an suspension from a university, and the opprobrium 

associated with committing a sexual assault (when in fact they committed no sexual assault), and 

has as a result suffered personal and professional harm, including emotional distress and loss of 

income.109 

LEGAL ARGUMENT

1. The Plaintiffs’ TAC States a Plausible, and Compelling, Claim for Violations 

of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.

a. Introduction 

In ¶¶ 91-133 of their TAC, the Plaintiffs advance in detail three theories of Title IX liability: 

(1) selective enforcement; (2) an erroneous outcome from a flawed proceeding; and (3) deliberate 

indifference. The Defendants concede that federal courts recognize these theories of liability, but 

argue that all “three theories of Title IX liability ... fail as a matter of law” because the TAC lacks 

“any factual allegations that plausibly suggest the University discriminated against plaintiffs based 

on their sex or gender.”110 In its argument, the University relies upon selective quotations from 

																																																												 107 See Exhibit A, ¶ 86. 

108 See Exhibit A, ¶ 87. 

109 See Exhibit A, ¶ 88. The Defendants argue that few college athletes actually play in the 

NBA, but concede that it is not “necessary to resolve” this issue now. [Doc. No. 41, page 36.] 

110 The only other “legal” challenge raised by the Defendants is the contention, set forth in 

foonote 3 of their Motion, that the Plaintiffs’ Title IX claim is barred by the statute of limitations. 

The Defendants attempt to raise this challenge by way of a footnote “renewing” their previous 

argument that Stanley v. Trustees of California State University, 433 F.3d 1129 (9th Cir 2006), 

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out-of-circuit cases, and simply ignores the Ninth Circuit’s decision in Emeldi v. University of 

Oregon. In Emeldi, the Ninth Circuit held or at least strongly suggested that the pleading standard 

for Title IX claims is akin to the minimal pleading standard applicable to claims under Title VII 

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Under any standard, the Plaintiffs have

set forth a compelling claim for violations of Title IX, and plausibly plead that the University’s 

disciplinary actions were motivated by bias and discrimination on the basis of sex or gender. 

b. The Pleading Standard for Title IX Claims

20 U.S.C. § 1681(a) provides in pertinent part as follows: “No person in the United States 

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

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

assistance.”

111 20 U.S.C.A. § 1687 expressly extends this provision “to all of the operation[s] of 

... a college, university, or other postsecondary institution, or a public system of higher education 

... any part of which is extended Federal financial assistance.” The University of Oregon receives 

federal funding through various means including, without limitation, student loans provided to 

University students directly by the federal government and through other funds furnished by the 

federal government, and as such is subject to the strictures of Title IX and its implementing 

regulations.112 

																																																												

which held that a state’s personal injury statute of limitations applies to Title IX claims, was 

incorrectly decided, and this Court should apply a different, “shorter” Oregon statute. We know 

of no rule of court allowing the Defendants to raise an argument in such a perfunctory manner. In 

any event, not only is Stanley binding upon this Court, it is consistent with all authority before it. 

Indeed, as the Ninth Circuit pointed out in Stanley, “every circuit to consider the issue has held 

that Title IX ... borrows the relevant state’s statute of limitations for personal injury,” and “[t]he 

close similarity between Title VI and Title IX also supports applying the statute of limitations for 

personal injury.” See Stanley, 433 F.3d at 1134-36.

111 See 20 U.S.C. § 1681(a).

112 See Exhibit A, ¶ 93. 

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To assist schools with implementing Title IX and its regulations, the Office for Civil Rights 

of the United States Department of Education has identified a number of factors to be used in 

determining whether a school’s procedures satisfy the “prompt and equitable” requirements of the 

regulations: the procedures adopted by a school must not only “ensure the Title IX rights of the 

complainant,” but must also “accord[] due process to both parties involved ... .”113

Beyond this, “it is ... well established that Title IX bars the imposition of university 

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

114 “[C]ases attacking 

university disciplinary proceedings on the ground of gender bias ... fall generally within two 

categories ... ‘erroneous outcome’ and ‘selective enforcement.’”

115 “In the first category, 

‘erroneous outcome’ cases, ‘the claim is that the plaintiff was innocent and wrongly found to have 

committed an offense.’ ... In the second category, ‘selective enforcement’ cases, the ‘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 student’s gender.’”

116		

Under the pleading standard articulated in Twombly and clarified in Iqbal, a plaintiff must 

allege “enough facts to state a claim to relief that is plausible on its face.”117 In Doe v. Brown 

University, the United States District Court for the District of Rhode Island held that, with regard 

to “erroneous outcome” cases, the plaintiff must first “allege particular facts sufficient to cast some 

articulable doubt on the accuracy of the outcome of the disciplinary proceeding,” and must next 

“allege particular circumstances suggesting that gender bias was a motivating factor behind the 

																																																												 113 See Exhibit A, ¶ 93. 

114 See Doe v. Brown University, Docket No. 15-144 S, 2016 U.S. Dist. LEXIS 21027, at 

*15 (D.R.I. February 22, 2016) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994))

115 See id. (quoting Yusuf, 35 F.3d at 715). 

116 See id. at *15-16 (quoting Yusuf, 35 F.3d at 715).

117 See Twombly, 550 U.S. at 570; see also Iqbal, 556 U.S. at 662. 

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erroneous finding.”118 “Such allegations might include, inter alia, statements by members of the 

disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making 

that also tend to show the influence of gender.”119 The District Court made clear that, given that 

Title IX claims are generally treated like Title VII claims at the motion-to-dismiss stage, even 

allegations such as “male students accused of sexual assault are invariably found guilty, regardless 

of the evidence, or lack thereof” pass muster under Iqbal and Twombly with regard to pleading 

gender as a motivating factor.

120

The most recent circuit court decision to address the pleading standard in Title IX claims 

was Doe v. Columbia University, which is consistent with the Ninth Circuit’s decision in Emeldi. 

In Doe v. Columbia, the plaintiff’s complaint alleged that Columbia University violated 

Title IX “by acting with sex bias in investigating him and suspending him for an alleged sexual 

assault.” The Second Circuit held that the Complaint “meets the low standard ... of alleging facts 

giving rise to a plausible minimal inference of bias sufficient to survive a motion to dismiss, which 

we hold applies in Title IX cases.”121 

The plaintiff, a male athlete at Columbia, alleged that a female classmate initiated a 

discussion of “hooking up,” retrieved a condom, undressed herself, and proceeded to have a 

consensual sexual encounter with the plaintiff. Months later, however, the female classmate 

alleged that the encounter constituted a sexual assault, and the plaintiff was “charged with ‘Non-

																																																												 118 See Doe v. Brown University, 2016 U.S. Dist. LEXIS 21027, at *15-16 (quoting Yusuf, 

35 F.3d at 715).

119 See id.

120 See id. at *25-26. Thus, one District Court recently denied a motion to dismiss his 

complaint where it “recounts Defendants having rushed to judgment, having failed to train UCB 

members, having ignored the Prosecutor, having denied Plaintiff counsel, and having denied 

Plaintiff witnesses. These actions came against Plaintiff, he contends, because he was a male 

accused of sexual assault.” See Wells v. Xavier Univ., 7 F. Supp. 3d 746, 751 (S.D. Ohio 2014). 121 See Doe, 831 F.3d at 48.

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Consensual Sexual Intercourse’ in violation of the school’s Gender-Based Misconduct Policies for

Students.” When the plaintiff met with the Title IX investigator, he told her that the encounter had 

been consensual, and witnesses at the residence hall would be helpful to the investigation; the Title 

IX investigator’s response was hostile, and she neither asked about the witnesses nor interviewed 

them. Moreover, the Title IX investigator took the accuser at her word, despite serious questions 

about the veracity of her account. Perhaps most significantly, “[i]n the period preceding Plaintiff’s 

disciplinary hearing, Columbia students had expressed concern that the University did not take 

seriously the complaints of female students about sexual assaults by male students.” The Second 

Circuit’s opinion describes in detail criticism throughout the campus community, and in the local 

media as well as media associated with the school, regarding this perceived issue. Moreover, the 

hearing suffered from significant procedural flaws.

The Second Circuit summed up the allegations within Mr. Doe’s complaint as follows:

It alleges that Sessions-Stackhouse, in the role of the University’s 

supposedly neutral Title IX investigator, was motivated by profemale sex bias, attributable in part to a desire to refute criticisms of 

herself and of the University for their past handling of similar 

complaints, to perform her duties in a manner that discriminated 

against the accused male. The Complaint alleges that she conducted 

a sex-biased and deficient investigation that was hostile to his claim, 

failed to carry out her duty to interview his witnesses and explore 

channels that could be helpful to him, failed to advise him of his 

rights, and drew unfair and incorrect conclusions against him in her 

report to the adjudicatory panel. The Complaint alleges also that the 

University’s decision-makers (the panel and the Dean), seeking to 

protect the University from criticism both among students and the 

public to the effect that it was not taking women’s sexual assault 

complaints seriously, took a pro-female, sex-biased stance on Jane 

Doe’s allegations, leading them to decide against him, incorrectly 

and contrary to the weight of the evidence. 122

																																																												 122 See id. at 49-53. 

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The Second Circuit began its legal analysis by discussing the line of Title VII cases starting 

with McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Therein, the Supreme Court held 

that, in suits alleging discrimination in violation of Title VII, “the plaintiff needs to present only 

minimal evidence supporting an inference of discrimination,” which raises a temporary 

presumption of discriminatory motivation and shifts the burden to the defense. “Because the 

discrimination complaint, by definition, occurs in the first stage of the litigation ... the complaint 

also benefits from the temporary presumption and must be viewed in light of the plaintiff’s 

minimal burden to show discriminatory intent.” This is true even following Twombly and Iqbal.

123

The court then held McDonnell Douglas applies to Title IX cases at the pleading stage, 

given the commonality between the two types of cases. “Thus, a complaint under Title IX, alleging 

that the plaintiff was subjected to discrimination on account of sex in the imposition of university 

discipline, is sufficient with respect to the element of discriminatory intent, like a complaint under 

Title VII, if it pleads specific facts that support a minimal plausible inference of such 

discrimination.”

124 The court proceeded to rule that Mr. Doe had stated a claim:

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. Here, the facts pleaded in the 

Complaint (which we must accept in the light most favorable to 

Plaintiff) support John Doe’s version (not surprisingly as they 

represent his contentions). The Complaint’s narrative depicts Jane 

Doe as an altogether willing participant. It denies that Plaintiff 

coerced Jane and asserts that “no evidence was presented” in support 

of the claim of coercion. The alleged fact that Sessions-Stackhouse, 

and the panel and the Dean, chose to accept an unsupported 

accusatory version over Plaintiff’s, and declined even to explore the 

testimony of Plaintiff’s witnesses, if true, gives plausible support to 

																																																												 123 See id. at 54-55 (internal alteration omitted) (quoting Littlejohn v. City of New York, 

795 F.3d 297, 311 (2d Cir. 2015)).

124 See id. at 55-56.

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the proposition that they were motivated by bias in discharging their 

responsibilities to fairly investigate and adjudicate the dispute.

While those allegations support the inference of bias, they do not 

necessarily relate to bias on account of sex. Additional allegations 

of the Complaint, however, give ample plausible support to a bias 

with respect to sex. As outlined above, the Complaint alleges 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, accusing the University of not taking seriously 

complaints of female students alleging sexual assault by male 

students. It alleges further 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. Against this factual background, it is entirely 

plausible that the University’s decision-makers and its investigator 

were motivated to favor the accusing female over the accused male,

so as to protect themselves and the University from accusations that 

they had failed to protect female students from sexual assault.

The Complaint alleges that, having been severely criticized in the 

student body and in the public press for toleration of sexual assault 

of female students, Columbia was motivated in this instance to 

accept the female’s accusation of sexual assault and reject the male’s 

claim of consent, so as to show the student body and the public that 

the University is serious about protecting female students from 

sexual assault by male students—especially varsity athletes. There 

is nothing implausible or unreasonable about the Complaint’s 

suggested inference that the panel adopted a biased stance in favor 

of the accusing female and against the defending male varsity athlete 

in order to avoid further fanning the criticisms that Columbia turned 

a blind eye to such assaults. ... It is worth noting furthermore that 

the possible motivations mentioned by the district court as more 

plausible than sex discrimination, including a fear of negative 

publicity or of Title IX liability, are not necessarily, as the district 

court characterized them, lawful motivations distinct from sex bias. 

A defendant is not excused from liability for discrimination because 

the discriminatory motivation does not result from a discriminatory 

heart, but rather from a desire to avoid practical disadvantages that 

might result from unbiased action. A covered university that adopts, 

even temporarily, a policy of bias favoring one sex over the other in 

a disciplinary dispute, doing so in order to avoid liability or bad 

publicity, has practiced sex discrimination, notwithstanding that the 

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motive for the discrimination did not come from ingrained or 

permanent bias against that particular sex.125

The Second Circuit’s decision in Doe v. Columbia is on all fours with Emeldi v. University 

of Oregon, the post-Iqbal/Twombly decision wherein the Ninth Circuit “join[ed its] sister circuits” 

in holding that, in order to “prevail on a retaliation claim under Title IX,” a plaintiff can use “the 

familiar framework used to decide retaliation claims under Title VII.”126 In so holding, the Ninth 

Circuit noted that “the legislative history of Title IX strongly suggests that Congress meant for 

similar substantive standards to apply under Title IX as had been developed under Title VII,” and 

further noted that “we have found the Title VII framework useful in assessing claims of 

discrimination and retaliation outside the Title VII context, even where its application is not

mandatory.”

127 Chief Judge Kozinski subsequently observed that the panel’s opinion held or at a 

mimimum strongly suggested “that the Title VII pleading standard applies to Title IX cases.”128 

Thus, to the extent that this Court’s prior decision in this case could be read to decline to 

follow Doe v. Columbia in general, as opposed to simply with regard to the Second Amended 

Complaint, we respectfully suggest that said holding would be inconsistent with Emeldi.

c. The Plaintiffs Have Stated a Plausible, and Compelling, Claim for 

Violations of Title IX

First, in ¶¶ 96-117, the Plaintiffs allege a selective enforcement theory of Title IX liability 

asserting that, regardless of their guilt or innocence, the severity of the penalty and/or the decision 

																																																												 125 See id. at 55-56.

126 See Emeldi v. University of Oregon, 673 F.3d 1218, 1223 (9th Cir. 2012).

127 See id. at 1224 (internal quotation marks omitted).

128 See Emeldi v. University of Oregon, 698 F.3d 715 (9th Cir. 2012) (en banc) (Kozinski, 

J., dissenting) (emphasis added) (“Under the established Title VII pleading framework, which the 

majority applies to this Title IX case, Emeldi must show a causal connection between her 

complaint and her advisor’s resignation. ... Even accepting that the Title VII pleading standard 

applies to Title IX cases, no one claims the pleading standard should be lower for students suing 

professors in the Ivory Tower than for employees suing supervisors on the factory floor.”).

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to initiate the proceeding129 was motivated by their gender. Stated differently, the Plaintiffs allege

that the “the University engaged in selective enforcement in violation of Title IX, and 

discriminated against them based on their sex and, as a result, they have been seriously and 

irreparably damaged” and allege that “[r]egardless of their guilt or innocence (and, to be clear, 

Plaintiffs [were] and are innocent), the severity of the penalty (a suspension of between four and 

ten years), as well as the decision to initiate the proceeding in the first place, were affected by the 

fact that they are male, and the accuser is a female.” 

Next, in ¶¶ 118-126, the Plaintiffs set forth an “erroneous outcome from a flawed 

proceeding”-type Title IX claim. Specifically, they contend that the University failed to comply 

with both its own procedures and the requirements of Title IX, which requirements include 

“accord[ing] due process to both parties involved,” “in order to reach a pre-determined result,” 

and provide ample factual matter plausibly demonstrating that the outcome of the hearing was 

erroneous and woefully at odds with what actually occurred. 

Finally, in ¶¶ 127-133, the Plaintiffs allege that the University demonstrated a deliberate 

and systematic indifference to the rights of the Plaintiffs, due to their sex, as the University’s 

																																																												 129 In footnote 4, the University cites the so-called “Dear Colleague” letter issued in 2011 

by the Department of Education’s Office for Civil Rights, and argues that the “Dear Colleague” 

letter required it to investigate. Recent court decisions, including Wells, have made clear that a 

University’s overzealousness in charging men and adjudicating that they have committed Title IX 

violations, in order to avoid the specter of a loss of federal funding suggested by the “Dear 

Colleague” letter, is actionable. See, e.g., Doe v. Salisbury Univ., Docket No. JKB-15-517, 2015 

U.S. Dist. LEXIS 110772, at *41 (D. Md. Aug. 21, 2015); accord Wells, 7 F. Supp. 3d at 751 

(holding that the plaintiff had stated a claim where he alleged, among other things, that 

“Defendants were reacting against him, as a male, to demonstrate to the OCR that Defendants 

would take action, as they had failed to in the past, against males accused of sexual assault”). 

Moreover, whether or not the “Dear Colleague” letter is binding is a matter disputed on a national 

basis, and the University has hardly proven its applicability in a footnote. Even if it is somehow 

applicable as a matter of law, and even if the University was required to investigate, nothing therein 

required the University to actually begin a disciplinary procedure against the athletes, much less 

“railroad” them in the manner set forth in the TAC.

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actions and inactions were unreasonable in the light of the known circumstances, and but for the 

obvious gender bias, the outcome of the proceeding would have been different.

Contrary to the University’s argument, the Plaintiffs’ Complaint is replete with facts that 

provide at least a minimal inference – and in actuality far more than just a minimal inference – that 

the University’s selective enforcement, erroneous outcome, and deliberate indifference were 

motivated by the sex/gender of the accused individuals. These facts are set forth in great detail 

and discussed in the statement of facts above, and very briefly include without limitation (1) the 

internal and external pressure brought upon the University by the negative media coverage

suggesting the University was too lenient with males accused of sexual assault, one of the 

University’s psychology professors speaking out against the University’s handling of the situation 

and leading or endorsing a student protest that occurred just one day before Dr. Gottfredson’s 

speech, and widespread protests on campus plainly and unambiguously suggesting that the 

University had been too lenient with male students accused of rape, which the Plaintiffs quite 

plausibly allege had the actual effect of pressuring the University to take action against the 

innocent male players solely on the basis of their sex/gender in order to demonstrate that it is harsh 

on males and male athletes accused of sexual assault; (2) the District Attorney’s decision not to 

prosecute the basketball players and issuance of a document undercutting the accuser’s statements, 

which is now included in the Plaintiffs’ pleading; and (3) Dr. Gottfredson’s use of loaded 

statements and code words grounded in sexism and gender bias, all of which had the effect of 

influencing others at the University associated with the proceeding. 

Further, the Plaintiffs plead detailed facts supporting their contention that in this very case, 

the female accuser was treated more favorably than the accused males, on the basis of sex and 

gender; all evidence presently available demonstrates that the University has never taken action 

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against a female student (including the accuser here) for engaging in the exact type of conduct the 

Plaintiffs allegedly engaged in, i.e., sex with only implicit consent; all evidence presently available 

demonstrates that the University has never taken action against a female student for making a false 

allegation of the kind involved in this matter; and all evidence presently available demonstrates 

that males invariably lose when charged with sexual misconduct at the University, and it invariably 

“believes” the female’s version of events, no matter how implausible, and “rejects” the male’s 

version of events, no matter how credible. 

The Plaintiffs further allege that the University created an environment in which the 

accused male students were so fundamentally denied due process, and subjected to a biased and 

one-sided process, so as to be virtually assured of a finding of guilt. The Plaintiffs allege that the 

University’s representatives accepting the female student’s statements at face value despite serious 

questions regarding their verity, the lack of training of University personnel under Title IX, and 

the deprivation of an equal or fair opportunity to present relevant witnesses and other evidence, 

demonstrate that the University’s “investigation” and subsequent hearing were conducted in a 

manner biased against the accused based on sex. Ultimately, the Plaintiffs allege, based upon the 

facts set forth in their pleading, that “[t]he University responded to the accuser’s accusations with 

a series of arbitrary, capricious, discriminatory, and gender-based actions directed toward a 

predetermined outcome: [Plaintiffs’] suspension from the University to satisfy and appease the 

University’s internal and external critics.”

Last, but hardly least, the Plaintiffs repeat and incorporate the above argument that the

evidence provided by the four attorney declarants, experienced officers of the court, is to be given 

great deference at the motion-to-dismiss stage. Even if this Court finds the evidence to be too 

speculative, which it should not, the declaration by Ms. Fine Moro standing alone provides an 

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actual basis to allow the Plaintiffs to proceed. In this instance, the District Attorney felt that the 

case was unprovable as a criminal case, and the basketball players were not charged much less 

prosecuted, yet they were sanctioned by the University under its conduct code. In the instance set 

forth in Ms. Fine Moro’s declaration, the female was not only prosecuted, she pled guilty to crimes 

of violence and harm, yet the University declined to even pursue her under the very same student 

conduct code. Gender is the only answer to the question, “Why so?” Similarly, the Plaintiffs 

allege that another male University student recently filed a lawsuit alleging that he was falsely 

accused of an off-campus sexual assault, and subsequently was given given an unfair disciplinary 

hearing, further demonstrating a pattern and practice on the part of the University. They allege 

that the transcript of this hearing demonstrates patent bias on the part of Ms. Martin and the 

University in favor of the female accuser, and against the male who was accused, in both the 

conduct and outcome of the proceeding. Ultimately, the female’s testimony was believed in the 

face of overwhelming testimony to the contrary.130

The University faults the Plaintiffs for not pleading information that no plaintiff could 

reasonably expected to have at the pleadings stage in a Title IX case, such as a “smoking gun” or 

a direct admission from Dr. Gottfredson that the protesters, Dr. Freyd, or the media coverage 

influenced him or the others, or that he influenced the others. No Title IX plaintiff alleging 

sex/gender discrimination in discipline could reasonably be expected to have such material at the 

pleadings stage, and such allegations need not be advanced at the pleadings stage.131 

																																																												 130 See Exhibit A, ¶ 90. 

131 See Doe v. Brown, 2016 U.S. Dist. LEXIS 21027, at *24 (“In sum, the Court is not 

convinced as Brown would have it that the type of allegation found to be sufficient in Yusuf ...

that male students accused of sexual assault are invariably found guilty, regardless of the evidence, 

or lack thereof ... is now insufficient under Iqbal and Twombly absent some smoking gun evidence 

set forth in the complaint.”); accord Emeldi, 698 F.3d at 715 (en banc) (Kozinski, J., dissenting) 

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The Plaintiffs’ allegations, individually and taken as a whole, more than plausibly allege 

that the Defendants’ actions were motivated by the Plaintiffs’ sex/gender. Indeed, ultimately, the 

University’s arguments are summary judgment arguments if not trial arguments that attempt to 

twist and indeed “argue” with the facts set forth in the TAC. The Plaintiffs, having pled a plausible 

and in fact compelling Title IX claim, are entitled to discovery to fully meet those arguments. 

Here, as in Doe v. Columbia, and consistent with Elemdi, Twombly, and Iqbal, the operative 

pleading plausibly demonstrates that the University “was motivated in this instance to accept the 

female’s accusation of sexual assault and reject the male’s claim of consent, so as to show the 

student body and the public that the University is serious about protecting female students from 

sexual assault by male students—especially varsity athletes.” The Plaintiffs, through the 

aforementioned attorney declarations, go even further. They have adequately pled their Title IX 

claim, and this Court should allow that compelling claim to proceed to the discovery stage.

2. The Plaintiffs’ TAC States a Plausible, and Compelling, Equal Protection 

Claim

At pages 20-24, the Defendants move to dismiss the equal protection claim brought by 

Plaintiffs Dotson and Artis. Insomuch as the pleading standards and underlying factual basis for 

this claim is aligned with that of the Title IX claim, those Plaintiffs submit the text and context of 

each of the four attorney declarations, including the woman criminally convicted yet not subjected 

to student conduct prosecution, previously briefed herein constitute sufficient basis to unlock the 

doors of discovery on this claim as well. As mentioned in the introduction, rather than repeat the 

sections highlighted therein and the reasoning underlying their individual relevance and force at 

this stage of proceedings, the Plaintiffs will simply herein incorporate them in their entirety. 

																																																												

(observing that the majority “applies” “the established Title VII pleading framework ... to this 

Title IX case,” and “accepting that the Title VII pleading standard applies to Title IX cases”).

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The history and patterns as described by both Ms. Casey and Ms. Fine Moro, as well as 

the depositions described in the declaration of Mr. Michaels with as much certainty as allowable 

by law, apply equally to the bases against qualified immunity. Defendants cannot say the state of 

the law was not clear at the time that they must treat all students equally, unbiased, regardless of 

gender. These declarations point specifically, and at the least plausibly, to the conclusion they 

behaved not in conformity with the Fourteenth Amendment guarantees for gender equality.

 Given the development of how these proceedings were conducted, as per Attorney Veralrud 

and Fine Moro, the Defendants’ comments at footnote 9 on issue preclusion are not wellfounded. Including the description by Ms. Casey of her being threatened with greater sanctions 

against her clients when seeking procedures to insure a fair hearing, such coercion cannot 

constitute issue preclusion. 

3. The Plaintiffs’ TAC States a Plausible, and Compelling, Claim for Negligence

This Court’s prior ruling held that, because the Plaintiffs were attempting to pursue a 

negligence claim in the absence of physical injury, they were required to plead the existence of a 

“special relationship” between the Defendants and the Plaintiffs. This Court granted the Plaintiffs 

leave to amend to properly allege such a relationship. Contrary to the Defendants’ argument, the 

Plaintiffs have now done so.

In Davidson v. University of North Carolina at Chapel Hill, the Court of Appeals of North 

Carolina readily concluded that a special relationship exists between a school and its athletes, due 

to the “mutual dependence” between the two. The court began its analysis by citing Prosser and 

Keaton’s observation regarding a special relationship” (emphasis in original): “Fairness ... may 

require the defendant to use his power to help the plaintiff, based upon the plaintiff's expectation 

of protection, which itself may be based upon the defendant’s expectation of financial gain... . 

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There is now respectable authority imposing the same duty upon a shopkeeper to his business 

visitor, upon a host to his social guest, upon a jailor to his prisoner, and upon a school to its 

pupil.”

132 After making clear that “special relationships are most often premised upon the 

existence of mutual dependence,” the court analyzed the mutual dependence between a school and 

its athletes as follows:

Here, UNC depended upon the cheerleading program for a variety 

of benefits. The JV squad was responsible for cheerleading at JV 

basketball games, women’s basketball games, and wrestling events. 

The JV squad represented UNC at a trade show, and often 

entertained the Rams Club before games. Plaintiff testified, and 

Boulton [the Vice Chancellor and Dean for Student Affairs at UNC]

acknowledged, that the cheerleaders acted as representatives of the 

school at official athletic events. Likewise, the cheerleaders 

received significant benefits from UNC as a result of participating 

in the cheerleading program. They were provided school uniforms 

purchased by the school. They were provided transportation by 

UNC, and they used university facilities and equipment for 

practices. ...

We also find it significant that UNC exerted a considerable degree 

of control over its cheerleaders. Typically, schools exert a high 

degree of control over many aspects of a student athlete’s life. ... 

Here, UNC cheerleaders had to abide by certain standards of 

conduct, such as maintaining a minimum GPA and refraining from 

drinking alcohol in public. Such control affects our analysis in at 

least two ways. First, the argument that a duty of care should not be 

imposed upon a school because it may stifle student autonomy is 

considerably less compelling where the school already exerts 

significant control over the students in question. Second, when a 

school exerts significant control over students as a result of their 

participation in a school-sponsored athletic activity, the students 

may have higher expectations with regard to the protection they will 

receive from the school.133

																																																												 132 See Davidson v. Univ. of North Carolina at Chapel Hill, 543 S.E.2d 920, 926-27 (N.C. 

App. 2001) (italics in original) (citation omitted). 133 See id.

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Similarly, in the oft-cited case of Kleinknecht v. Gettysburg College, the Third Circuit held 

that a special relationship existed between Gettysburg College and a student participating lacrosse 

practice, where the college actively recruited the student to play lacrosse, as this fact demonstrated 

the extent to which the student’s participation in the lacrosse program benefitted the school.

134

In Count 3 of the Plaintiffs’ TAC, for negligence, the Plaintiffs allege that the Defendants, 

individually and collectively, had a “special relationship” with the Plaintiffs and a corresponding 

duty to them to conduct a campus investigation in a competent manner and in accordance with 

societal standards and norms governing such investigations, and to conduct a hearing in a 

competent manner and in accordance with societal standards and norms governing such hearings, 

and otherwise act in a reasonably prudent manner with regard to the Plaintiffs, and it was 

foreseeable that a breach of this duty would lead to the harm suffered by Plaintiffs. 

Specifically, the Plaintiffs allege in ¶¶ 145-153 that both the University and the individual 

defendants had a “special relationship” with the basketball players because they exercised 

independent judgment on their behalf to advance the individual interests of those athletes, by 

recruiting those athletes and then managing virtually every aspect of their time at Oregon. 

Additionally, and/or in the alternative, as athletes at the University, the Plaintiffs were particularly 

vulnerable and dependant upon the Univerity and the individual defendants who, correspondingly, 

hold considerable power over their welfare. Here, the University depended upon its well-known 

basketball program for a variety of benefits, including national attention and recognition, the 

University actively recruited the Plaintiffs, three of the top basketball prospects in the United 

States, for the purposes of benefiting the University’s basketball program, and the University 

																																																												 134 See Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993); accord Kavanagh 

v. Trs. of Boston University, 795 N.E.2d 1170 (Mass. 2003) (summarizing authorities).

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further exercised significant control over the athletes on the basketball team as demonstrated by 

among other things the terms of their scholarship, and the conditions imposed by the University 

on its athletes, including but not limited to the University’s scheduling of and control over athletes’ 

time and suspending athletes and removing them from participation in athletics for disciplinary 

reasons. Ironically, the Defendants’ argument that the University had the sole and unfettered right 

to terminate the Plaintiffs’ scholarship, if correct, demonstrates as well as anything the existence 

of a special relationship.

Finally, the Defendants briefly argue that what occurred was not a foreseeable risk. This 

argument ignores the allegations that, prior to the Defendants’ actions, the Plaintiffs were regarded 

as among the top amateur basketball players in the country; on the team at Oregon; and widely 

projected to “be selected in the first round of the NBA Draft, which would more likely than not be 

accompanied by a multi-million dollar guaranteed contract and tens of millions of dollars in 

prospective economic advantage,” and further allege that at all relevant times “the Defendants 

were aware of the foregoing facts.” It should have been foreseeable to the Defendants that their 

careless conduct would stigmatize them and cause the harm claimed. Moreover, for the reasons 

previously asserted, the players did not “waive” their right to a fair hearing and procedures.135

4. The Plaintiffs’ TAC States a Plausible, and Compelling, Claim for Breach of 

Contract

																																																												 135 The Defendants also attempt, in footnotes 9 and 10, to “reassert” previously asserted 

and rejected defenses, and attempt to incorporate their prior briefing in doing so. These defenses, 

raised only in a footnote presumably due to page limitations, are not properly before the Court. To 

the extent they somehow are, the Plaintiffs are constrained to “reassert” their prior response. 

Moreover, with regard to the “thrown-in” argument regarding the notice of claims, the notice [Doc. 

No. 43-6] plainly notifies the Defendants of the time, place, circumstances of their actions. To the 

extent the Court requires a full response to a particular argument raised summarily in a footnote, 

we respectfully request the opportunity to do so in a supplementary opposition.

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 47 of 50
Page 43 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

The Plaintiffs’ TAC alleges that the athletic scholarship contained both express terms and 

an implied covenant of good faith and fair dealing. The express terms included (emphasis added):

This assistance will be considered for renewal during subsequent 

periods of attendance as long as you are a student in good standing, 

maintain normal progress toward graduation and are in compliance 

with all eligibility requirements of this institution, the Pac-12 

Conference and the NCAA. This assistance may be changed or 

terminated only in accordance with the legislation of the NCAA, 

principal details of which appear on the back of this statement.136

In Count 4, for breach of contract, the Plaintiffs allege that nothing in the “details ... 

appear[ing] on the back of this statement” state much less suggest that the University could decline 

to renew Plaintiffs’ scholarship in the circumstances presented.” They further allege that “industry 

custom and “usage of trade” makes it implicit in the contractual relationship between athletes and 

the universities recruiting them, including the University of Oregon, that the universities would 

renew the scholarships of athletes recruited to play at a university.” They further allege that they 

“had the objectively reasonable expectation, based upon the express terms of the contractual 

relationship governing the athletic scholarship, that the University would renew their scholarship, 

and not act so as to deprive them of the fruits of the scholarship, and otherwise act in good faith 

vis-à-vis their scholarships.” 

In a short argument, the University summarily contends that it did what it was required to 

do during the relevant academic year, and nothing within the scholarship agreement guarantees 

renewal. Mr. Austin, however, plausibly alleges that the University induced him to transfer from 

Providence with the scholarship, all of the Plaintiffs were recruited by the University, and the 

Plaintiffs had the objectively reasonable expectation, based upon the express terms of the 

scholarship, that the University would renew their scholarship, and not act so as to deprive them

																																																												 136 See Exhibit A, ¶ 16 (emphasis added).

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 48 of 50
Page 44 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

of the fruits of the scholarship, and otherwise act in good faith vis-à-vis their scholarship. The 

Plaintiffs have more than plausibly pled that the University breached the contract by failing to 

renew it, depriving them of the fruits of the scholarship, or at a bare minimum failing to act in 

good faith vis-à-vis the scholarship. Accepting the allegations in the TAC as true, in order to 

demonstrate to the protesters, the critical media, and a watching nation that the University was 

serious about punishing males accused of sexual assault, the other Plaintiffs were made the subject 

of a “kangaroo court” proceeding with a predetermined result, which included the non-renewal of 

a scholarship. Much like (for example) an at-will employment relationship cannot be terminated 

for discriminatory reasons, non-renewal cannot occur due to bad faith reasons.137

CONCLUSION

For the foregoing reasons, and the reasons to be advanced at oral argument, the Motion 

should be denied in its entirety, and this matter should proceed to discovery.

Dated: Thursday, February 9, 2017 Respectfully submitted,

LAW OFFICES OF MARIANNE DUGAN

By: /s/ Marianne Dugan

Marianne Dugan 

259 East 5th Avenue, Suite 200-D

Eugene, OR 97401

Telephone: 541-338-7072

Facsimile: 866-650-5213

E-Mail: mdugan@mdugan.com

– and –

																																																												 137 Cf. Doe v. Brandeis University, 177 F. Supp. 3d 561, 612 (D. Mass. 2016) (“In any 

event, the allegations of the complaint here are sufficient to state a claim for breach of the implied 

covenant. The complaint alleges, in substance, that Brandeis did not conform to the parties’

reasonable understanding of the performance obligations, as reflected in the overall spirit of the 

bargain, even if Brandeis technically complied with the letter of the Handbook. Accordingly, 

Count Two states a claim for breach of the implied covenant of good faith and fair dealing.”).

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 49 of 50
Page 45 – Plaintiffs’ Memorandum in Opposition to the Defendants’ Motion to Dismiss

Alan C. Milstein (Pro Hac Vice)

SHERMAN, SILVERSTEIN, KOHL,

ROSE & PODOLSKY, P.A.

308 Harper Drive, Suite 200

Moorestown, NJ 08057

Telephone: 856-662-0700

Facsimile: 856-488-4744

E-Mail: amilstein@shermansilverstein.com

Attorneys for Plaintiff Brandon Austin

LAW OFFICE OF BRIAN MICHAELS

By: /s/ Brian Michaels (signed with permission)

Brian Michaels (OSB #925607)

259 East Fifth Avenue, Suite 300-D

Eugene, OR 97401

Telephone: 541-687-0578

E-Mail: brian@brianmichaelslaw.com

Alex Spiro (Pro Hac Vice)

BRAFMAN & ASSOCIATES

767 Third Avenue

New York, NY 10017

Telephone: 212-750-7800

E-Mail: aspiro@braflaw.com

Attorneys for Plaintiffs Dominic Artis and

Damyean Dotson

Case 6:15-cv-02257-MC Document 51 Filed 02/09/17 Page 50 of 50