Plaintiff Brandon Austin’s Memorandum of Law in Opposition

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

Marianne Dugan (OSB No. 932563)

259 E. 5th Avenue, Suite 200-D

Eugene, OR 97401

Telephone: 541-338-7072

Facsimile: 866-650-5213

E-Mail: mdugan@mdugan.com

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 No. 6:15-cv-02257-MC

PLAINTIFF BRANDON AUSTIN’S 

MEMORANDUM IN OPPOSITION 

TO THE DEFENDANTS’ MOTION 

TO DISMISS

JURY TRIAL DEMANDED

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 1 of 43
Table of Contents

TABLE OF CONTENTS

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

Statement of the Facts .................................................................................................................... 3

Legal Argument ........................................................................................................................... 10

1. Contrary to the Defendants’ First Argument, Mr. Austin Has Stated a Claim 

for the Individual Defendants’ Violations of 42 U.S.C. § 1983 .......................... 10

a. The Property and Liberty Interests Claimed by Mr. Austin are 

Well-Recognized ...................................................................................... 11

b. The Individual Defendants are Not Entitled to Qualified Immunity ....... 16

c. Mr. Austin Did Not Waive His Right to Due Process ............................. 17

d. Mr. Austin was Entitled to Far More than a Nominal “Notice 

and Opportunity to Be Heard” ................................................................. 18

e. Finally, Mr. Austin Has Stated Claims for Violations of his 

Substantive Due Process Rights ............................................................... 19

2. Contrary to the Defendants’ Second Argument, Mr. Austin Has Plausibly 

Alleged Violations of Title IX ............................................................................. 22

3. This Court Should Reject the Defendants’ Arguments About Preclusion ........... 29

4. This Court Should Reject the Defendants’ Arguments in Favor of Dismissing 

Mr. Austin’s Tort Claims ..................................................................................... 30

a. The Defendants Are Not Entitled to Immunity Under O.R.S. 30.265 ..... 30

b. Mr. Austin has Stated Claims for Negligence, Intentional Infliction 

of Emotional Distress, and Tortious Interference .................................... 31

5. This Court Should Reject the Defendants’ Arguments in Favor of Dismissing 

Mr. Austin’s Breach of Contract Claim ............................................................... 34

Conclusion ................................................................................................................................... 35

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Page i – Table of Authorities

TABLE OF AUTHORITIES

FEDERAL CASES

Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007) ......................................................................................................... 25

Black Coalition v. Portland School District No. 1, 

484 F.2d 1040 (9th Cir. 1973) ......................................................................................... 13

Blanton v. State University of New York, 

489 F.2d 377 (2d Cir. 1973) ................................................................................. 12, 14, 19

Board of Curators of University of Missouri v. Horowitz, 

435 U.S. 78 (1978) ..................................................................................................... 15, 20

Board of Regents v. Roth, 

408 U.S. 564 (1972) ......................................................................................................... 12

Brown v. Fortner, 

518 F.3d 552 (8th Cir. 2008) ........................................................................................... 16

Cannon v. University of Chicago, 

441 U.S. 677 .................................................................................................................... 30

Cohen v. San Bernardino Valley Coll., 

92 F.3d 968 (9th Cir. 1996) ............................................................................................. 16

Damico v. California, 

389 U.S. 416 (1967) ......................................................................................................... 30

Davies v. Grossmont Union High Sch. Dist., 

930 F.2d 1390 (9th Cir. 1991) ......................................................................................... 18

Doe v. Brown University, 

Docket No. 15-144 S, 2016 U.S. Dist. LEXIS 21027 (D.R.I. February 22, 2016) .. passim

Doe v. Columbia University, 

101 F. Supp. 3d 356 (S.D.N.Y. 2015) ............................................................................. 28

Doe v. Salisbury University, 

Docket No. JKB-15-517, 2015 U.S. Dist. LEXIS 110772 (D. Md. August 21, 2015) ... 28

Doe v. United States, 

58 F.3d 494 (9th Cir. 1995) ............................................................................................. 28

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Page ii – Table of Authorities

Dixon v. Alabama State Board of Education, 

294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961) .............................. 12, 14

Eleldi v. University of Oregon, 

698 F.3d 715 (9th Cir. 2012) ........................................................................................... 25

Garcia-Catalan v. U.S., 

734 F.3d 100 (1st Cir. 2012) ............................................................................................ 25

Gaspar v. Bruton, 

513 F.2d 843 (10th Cir. 1975) ......................................................................................... 20

Gorman v. University of Rhode Island, 

837 F.2d 7 (1st Cir. 1988) .......................................................................................... 18, 19

Goss v. Lopez, 

419 U.S. 565 (1975) ................................................................................................... 12, 13

Grajales v. P.R. Ports Auth., 

682 F.3d 40 (1st Cir. 2012) .............................................................................................. 28

Hall v. University of Minnesota, 

530 F. Supp. 104 (D. Minn. 1982) ................................................................................... 15

Harlow v. Fitzgerald, 

457 U.S. 800 (1982) ......................................................................................................... 16

Hart v. Ferris State College, 

557 F. Supp. 1379 (W.D. Mich. 1983) ............................................................................ 14

Hope v. Pelzer, 

536 U.S. 730 (2002) ......................................................................................................... 17

In re Cincinnati Radiation Litigation, 

874 F. Supp. 796 (D. Ohio 1995) .................................................................................... 16

Lawrence v. City of St. Paul, 

740 F. Supp. 2d 1026 (D. Minn. 2010) ........................................................................... 16

Lewin v. Medical College, 

910 F. Supp. 1161 (E.D. Va. 1996) ................................................................................. 13

Marin v. University of Puerto Rico, 

377 F. Supp. 613 (D.P.R. 1974) ............................................................................... passim

Matthews v. Eldridge, 

424 U.S. 319 (1976) ......................................................................................................... 18

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Page iii – Table of Authorities

Morgan v. U.S. Postal Serv., 

798 F.2d 1162 (8th Cir. 1986) ......................................................................................... 30

NCAA v. Tarkanian, 

488 U.S. 179 (1988) ......................................................................................................... 15

Nunez v. City of Los Angeles, 

147 F.3d 867 (9th Cir. 1998) ........................................................................................... 20

Orneglas-Morales v. United States, 

Docket No. 3:15-cv-02304-SI, 2015 U.S. Dist. LEXIS 168575 (D. Ore. December 

17, 2015) ............................................................................................................................ 3

Regents of University of Michigan v. Ewing, 

474 U.S. 214 (1985) ................................................................................................... 15, 20

Sinaloa Lake Owners Ass’n v. City of Simi Valley, 

882 F.2d 1398 (9th Cir 1989) .......................................................................................... 20

Stanley v. Trustees of California State University, 

433 F.3d 1129 (9th Cir 2006) .......................................................................................... 22

Tigrett v. Rector and Visitors of University of Virginia, 

290 F.3d 620 (4th Cir. 2002) ........................................................................................... 15

United States v. Salerno, 

481 U.S. 739 (1987) ......................................................................................................... 20

Wells v. Xavier, 

7 F. Supp. 3d 746 (S.D. Ohio 2014) ................................................................................ 26

West v. Atkins, 

487 U.S. 42 (1988) ............................................................................................................ 1

Wilson v. Hewlett-Packard Co., 

668 F.3d 1136 (9th Cir. 2012) ........................................................................................... 3

Winnick v. Manning, 

460 F.2d 545, 550 (2d Cir. 1972)...................................................................................... 19

Wisconsin v. Constantineau, 

400 U.S. 433 (1972) ........................................................................................................... 1

Yusuf v. Vassar Coll., 

35 F.3d 709 (2d Cir. 1994) ......................................................................................... 25, 26

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Page iv – Table of Authorities

STATE CASES

Kavanagh v. Trs. of Boston University, 

795 N.E.2d 1170 (Mass. 2003) ........................................................................................ 32

Lowrimore v. Dimmitt, 

797 P.2d 1027 (Ore. 1990) ............................................................................................... 31

Westfall v. State, 

324 P.3d 440 (Ore. 2014).................................................................................................. 31

FEDERAL STATUTES

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

42 U.S.C. § 1983 .................................................................................................................. passim

STATE STATUTES

O.R.S. 30.265(6)(c) ............................................................................................................... 30, 31

O.R.S. 30.265(6)(f) ............................................................................................................... 30, 31

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 6 of 43
Page 1 – Plaintiff Brandon Austin’s Memorandum in Opposition

INTRODUCTION

Plaintiff Brandon Austin, by and through his counsel, Alan C. Milstein of Sherman, 

Silverstein, Kohl, Rose & Podolsky, P.A. (admitted pro hac vice), and local counsel Marianne 

Dugan, respectfully submit this memorandum of law in opposition to the “Motion to Dismiss” 

(“Motion”) filed on behalf of Defendants University of Oregon (when abbreviated, “University” 

or “Oregon”), Sandy Weintraub, Chicora Martin, Robin Holmes, and Michael R. Gottfredson 

(collectively, “Defendants”).

As one of the top fifty or so high school basketball players in the nation, Mr. Austin 

received offers to play basketball at multiple universities, and initially chose to play for the 

Providence Friars. Prior to the Spring 2014 Semester, Mr. Austin transferred to Oregon, where 

he matriculated as an undergraduate and became a member of the Oregon Ducks men’s college 

basketball team, which competes at the NCAA Division I level and is a member of the Pacific-12 

Conference. Mr. Austin was widely projected by experts in basketball and the NBA 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. In order to induce Mr. Austin to attend Oregon, Oregon provided Mr.

Austin with an athletic scholarship. 

At all relevant times, Mr. Austin had a recognized property interest in (among other 

things) his status as an admitted, matriculated University student in good standing; his interest in 

pursuing public higher education and intercollegiate athletic participation; and the economic 

benefit to him in the form of his existing scholarship, a future scholarship at another Division I 

school, or a future contract with an NBA team. Mr. Austin 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. 

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Page 2 – Plaintiff Brandon Austin’s Memorandum in Opposition

In 2014, Mr. Austin engaged in consensual “group” sexual activity with a female student

and other basketball players. Subsequently, this student falsely claimed that she had been 

sexually assaulted. The 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,” and presented “an 

insurmountable barrier to prosecution.” The Defendants, however, on the basis of Mr. Austin’s 

sex/gender, railroaded Mr. Austin, changing the course of Mr. Austin’s life. So prejudged was 

Mr. Austin on the basis of his sex/gender that, before the hearing process even started, no one 

less than the President of the University, emphasizing to the entire University community that he 

is also a “father,” held a press conference to condemn Mr. Austin and side with the “survivor.”

Mr. Austin advances a claim under 42 U.S.C. § 1983, a claim under Title IX of the 

Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”), and state-law claims for 

negligence, intentional infliction of emotional distress, tortious interference with prospective 

economic relations, and breach of contract.1 The Defendants principally attack Mr. Austin’s § 

1983 claim on the ground that Mr. Austin has not pled a recognized property or liberty interest. 

In reality, since 1961, federal courts have continuously held or assumed that a property and a 

liberty interest exists in the circumstances presented here, and federal courts have consistently 

required students facing a long-term suspension to be provided with far more than a nominal 

“opportunity to be heard.” Moreover, Mr. Austin’s Title IX claim has been plausibly pled, as 

demonstrated by Doe v. Brown University, and the cases cited therein, which significantly 

undercut the Defendants’ arguments.2 The Defendants’ remaining arguments fail as well.

																																																												 1 See generally Second Amended Complaint, a true and correct copy of which is attached 

to this memorandum as Exhibit “A.”

2 See generally Doe v. Brown University, Docket No. 15-144 S, 2016 U.S. Dist. LEXIS 

21027 (D.R.I. February 22, 2016). Doe v. Brown University was issued on the same day that the 

Defendants filed their Motion.

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 8 of 43
Page 3 – Plaintiff Brandon Austin’s Memorandum in Opposition

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.”3 Notwithstanding this bedrock principle, the 

Defendants transparently attempt to downplay the compelling facts of this matter, and replace 

those facts with a narrative that clearly does not represent the facts of this matter viewed in the 

light most favorable to Mr. Austin. The actual facts are as follows. 

I.

During his high school basketball career, Mr. Austin helped his school win three straight 

Pennsylvania Interscholastic Athletic Association titles. As one of the top fifty or so prospects in 

the nation, Mr. Austin received offers to play basketball at multiple universities, and ultimately 

chose to attend Providence College (“Providence”). During the Fall 2013 semester, Mr. Austin 

was suspended from the basketball team for thirty days. Providence pleaded with Mr. Austin to 

stay, but Mr. Austin chose to transfer to University of Oregon, an institution of higher education 

chartered and existing pursuant to the laws of the State of Oregon.

4

 

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. In order to induce Mr. 

Austin to attend Oregon, Oregon provided Mr. Austin with an athletic scholarship. The athletic 

scholarship contained both express terms and, Mr. Austin alleges, an implied covenant of good 

faith and fair dealing. Mr. Austin had the objectively reasonable expectation, based upon the 

express terms of the contractual relationship governing the athletic scholarship, that the 

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

Dist. LEXIS 168575, at *2 (D. Ore. December 17, 2015) (citing Wilson v. Hewlett-Packard Co., 

668 F.3d 1136, 1140 (9th Cir. 2012)) (additional citation omitted).

4 See Exhibit A, ¶¶ 5, 10-13. 

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Page 4 – Plaintiff Brandon Austin’s Memorandum in Opposition

University of Oregon would renew his scholarship, and not act so as to deprive Mr. Austin of the 

fruits of the scholarship, and otherwise act in good faith vis-à-vis his scholarship.5

II.

Mr. Austin attended an off-campus party on or around March 8, 2014. After about an 

hour and a half, a female student approached Mr. Austin and another basketball player and began 

“twerking” for them. Subsequently, she went into a bathroom with Mr. Austin and the other 

basketball player and initiated consensual sexual activity. The three individuals then left the 

bathroom together. Thereafter, a third basketball player approached them, whereupon the female 

student recognized that player as a member of the Oregon Ducks basketball team. At that point, 

the four individuals went into the bathroom, whereupon the female student voluntarily performed 

a variety of sexual acts on the basketball players, including oral sex on Mr. Austin, which oral 

sex was initiated by the female student. Numerous individuals at the party witnessed the female 

student interacting with Mr. Austin and the other basketball players both before and after the 

sexual activity in the bathroom, and 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.6

Later in the evening, the female student chose to return to the apartment of one of the 

basketball players, along with all three basketball players (including Mr. Austin). The female 

student was laughing and joking. Upon arrival, she stated that she needed to get into something 

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

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

student became teary-eyed, at which point the players chose to immediately cease any sexual 

activity. Soon after, she was again laughing and joking. The female student chose to stay 

																																																												 5 See Exhibit A, ¶¶ 4, 14-17. 

6 See Exhibit A, ¶¶ 18-23. 

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Page 5 – Plaintiff Brandon Austin’s Memorandum in Opposition

overnight at the apartment, and had sexual intercourse with one of the other players after waking 

up in the morning. Thereafter, the player sent the female student home in a cab, and she sent a 

text message stating “thanks for getting me home.” At no point did the female student appear to 

be intoxicated. At no point did the female student say “no” about any sexual activity, even when 

she became teary-eyed (after which, in any event, it immediately ceased). 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.7

III.

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. 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.8

When the University learned that Mr. Austin had been accused of rape, Defendant 

Chicora Martin, the Assistant Dean of Students at the University, suspended Mr. Austin and the 

other two basketball players on an “emergency” basis, and scheduled an “emergency” hearing to 

expel Mr. Austin and the other two. That emergency suspension was then modified.9

																																																												 7 See Exhibit A, ¶¶ 24-32. 

8 See Exhibit A, ¶¶ 33-34. 

9 See Exhibit A, ¶¶ 7, 35-36. 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 11 of 43
Page 6 – Plaintiff Brandon Austin’s Memorandum in Opposition

On April 14, 2014, the Lane County 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.” In or around 

late April, however, the Oregonian published the police report that the female student had made. 

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

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

statements, and concluding that they presented “an insurmountable barrier to prosecution.”10

At 11:00 a.m. on May 9, 2014, Defendant Michael R. Gottfredson, who served as the 

President of the University at all relevant times, in effect imposed discipline upon Mr. Austin 

without due process 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. 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.” (The italics are found in the original University transcript.) 

Evidencing that the University had prejudged Mr. Austin’s guilt, and done so on the basis of Mr. 

Austin’s sex/gender, Dr. Gottfredson’s statement included the statement that the female accuser 

was a “survivor,” the statement that “as a father, I was appalled at what I read,”11 and the 

																																																												 10 See Exhibit A, ¶ 39. The prosecutor’s analysis, which can be considered by this Court, 

is at http://kval.com/news/local/rape-accusation-faced-insurmountable-barrier-to-prosecution. 11 The Los Angeles Times used this language about being “appalled” as a “father” as a 

“pull quote” in large, bold type. See http://www.latimes.com/nation/nationnow/la-na-nn-oregonbasketball-sexual-assault-20140509-story.html (last visted March 6, 2016).

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 12 of 43
Page 7 – Plaintiff Brandon Austin’s Memorandum in Opposition

statement that Mr. Austin would “not be playing basketball at Oregon again.” Around this time, 

Ms. Martin again suspended Mr. Austin and the other two basketball players, and refused to 

modify Mr. Austin’s suspension. Around this time, a student told a University investigator that 

she personally interacted with the female student throughout the evening in question, she was not 

at all intoxicated, and she insisted on going home with the basketball players.12

Mr. Austin alleges that, at all relevant times, he had a recognized property interest in 

(among other things) his status as an admitted, matriculated University student in good standing; 

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

economic benefit to him in the form of his existing scholarship, a future scholarship at another 

Division I school, or a future contract with an NBA team. Mr. Austin further alleges that, at all 

relevant times, he 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. Mr. Austin further alleges that, at all relevant times, it was clearly 

established that, given the seriousness of the alleged infraction, the possible consequences to Mr. 

Austin, 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 Mr. Austin with (among other 

things) the right to representation by counsel, testimony of witnesses under oath, depositions, 

issuance of subpoenas, cross-examination, a fundamentally fair proceeding.13

Mr. Austin’s counsel, however, was presented with two unacceptable 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” 

																																																												 12 See Exhibit A, ¶¶ 9, 40-45. Ms. Martin refused to modify Mr. Austin’s suspension 

because he exercised his Miranda rights during the police investigation. See Exhibit A, ¶ 44.

13 See Exhibit A, ¶¶ 46-48. 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 13 of 43
Page 8 – Plaintiff Brandon Austin’s Memorandum in Opposition

at which the University would not provide most or all of the foregoing due process protections, 

except for representation by counsel. After the “panel hearing” was scheduled, Mr. Austin’s 

counsel requested a “contested case hearing” which complies with the due process requirements 

set forth in ORS 351.088, and ORS 183.413-.497 and 183.502, including representation by 

counsel (ORS 183.417(1)), testimony under oath (ORS 183.417(7)), depositions (ORS 183.425), 

issuance of subpoenas (ORS 183.440), and cross-examination (ORS 183.450(3)).14 

Among other things, Mr. Austin’s counsel further made clear that, in order to present a 

defense, Mr. Austin 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.15 

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

request of Mr. Austin’s counsel for a contested case hearing. Based upon the foregoing, it was 

clear to Mr. Austin’s counsel that the University and its representatives were not going to grant 

that request. Ultimately, as the University was only providing two options, neither of which 

provided the requisite due process, and the University was requiring Mr. Austin to choose 

between one of the two options, Mr. Austin’s counsel accepted the “administrative conference” 

option. Mr. Austin’s counsel was not asked to sign, and did not sign, a waiver of Mr. Austin’s 

due process rights, and would never have signed such a waiver; moreover, Mr. Austin’s counsel 

never waived Mr. Austin’s due process rights by choosing the “administrative conference” 

option over the “panel hearing” option, neither of which provided the due process protections 

that Mr. Austin’s counsel had expressly requested. 16

																																																												 14 See Exhibit A, ¶¶ 49-50. 

15 See Exhibit A, ¶ 51. 

16 See Exhibit A, ¶¶ 52-54. 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 14 of 43
Page 9 – Plaintiff Brandon Austin’s Memorandum in Opposition

The “administrative conference” was ultimately scheduled for May 30, 2014. It turned 

out to be nothing less than an unconstitutional “kangaroo court” scenario of the very worst order, 

in which Mr. Austin was deprived of the foregoing rights, and not even provided with a basic 

opportunity to properly respond to all information provided, and to contact and call all relevant 

and necessary witnesses. Defendant Sandy Weintraub, who is, and was at all relevant times, the 

Director of Student Conduct & Community Standards at the University of Oregon, ruled against 

Mr. Austin, suspending him from the University from four to ten years, long enough for the 

removal to be the functional equivalent of an expulsion from the University, and refused to 

provide due process to Mr. Austin generally and in the manner described in detail above.17

Defendant Robin Holmes, Vice President for Student Life at the University of Oregon, 

was charged with the responsibility of hearing an appeal. Dr. Holmes, however, refused to 

respond to Mr. Austin’s request for an appeal and did not return multiple phone calls from Mr. 

Austin’s counsel, in violation of Mr. Austin’s right to procedural and substantive due process.18

Additionally, the Defendants’ actions before, during, and after the hearing process were 

motivated in whole or large part by the fact that Mr. Austin is a male and the accuser is a female. 

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. 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. 

Oregon’s counsel contacted Mr. Austin’s counsel, stated that had she been consulted things 

might have been handled differently, and asked for Mr. Austin’s help in defending the suit.

19

																																																												 17 See Exhibit A, ¶¶ 6, 55-57. 

18 See Exhibit A, ¶¶ 8, 58-59. 

19 See Exhibit A, ¶¶ 63-66. 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 15 of 43
Page 10 – Plaintiff Brandon Austin’s Memorandum in Opposition

The University claims in its Motion that Mr. Austin’s assertions about his basketball 

career are merely speculative. But, in Mr. Austin’s Complaint, he plainly alleges that, prior to 

the Defendants’ actions, Mr. Austin was regarded as one of the top amateur basketball players in 

the United States of America; 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 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,” and alleges, equally plainly, that “[p]rior to taking the actions 

alleged herein, the Defendants were aware of the foregoing facts.20 Mr. Austin further alleges 

that, as a direct and proximate result of the Defendants’ conduct, Mr. Austin no longer plays at a 

Division I school, has diminished chances of playing in the NBA, has 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 he committed no sexual assault), and has as a result 

suffered personal and professional harm, including emotional distress, in the past, and will do so 

in the future.

21 

LEGAL ARGUMENT

1. Contrary to the Defendants’ First Argument, Mr. Austin Has Stated a Claim 

for the Individual Defendants’ Violations of 42 U.S.C. § 1983

In Count Two, Mr. Austin seeks to hold the individual defendants liable under § 1983. 

Among other things, Mr. Austin alleges that, at all relevant times, he had a recognized property 

interest in (among other things) his status as an admitted, matriculated University student in good 

standing; his interest in pursuing public higher education and intercollegiate athletic 

participation; and the economic benefit to him in the form of his existing scholarship, a future 

																																																												 20 See Exhibit A, ¶¶ 67-68. 

21 See Exhibit A, ¶ 69. 

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Page 11 – Plaintiff Brandon Austin’s Memorandum in Opposition

scholarship at another Division I school, or a future contract with an NBA team, and 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. Mr. Austin 

further alleges that, at all relevant times, it was clearly established that, given the seriousness of 

the alleged infraction, the possible consequences to him, 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 Mr. Austin 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, and the Defendants’ failure to 

do so constitutes a violation of § 1983.22 In response, the individual Defendants principally 

argue that their actions did not implicate a recognized property or liberty interest. They also 

argue that they are entitled to qualified immunity; Mr. Austin waived his right to the 

constitutional protections at issue; and Mr. Austin received a fair hearing consistent with due 

process. They also argue that there is no substantive due process claim because their actions did 

not shock the conscience. These arguments all fail.

a. The Property and Liberty Interests Claimed by Mr. Austin are WellRecognized

42 U.S.C. § 1983 provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or the 

District of Columbia, subjects, or causes to be subjected, any 

citizen of the United States or other person within the jurisdiction 

thereof to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or other proper 

proceeding for redress ... .

																																																												 22 See Exhibit A, ¶¶ 46-48, 100-111.

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Page 12 – Plaintiff Brandon Austin’s Memorandum in Opposition

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by 

the Constitution and laws of the United States, and must show that the alleged deprivation was 

committed by a person acting under color of state law.”23

The Fourteenth Amendment forbids those acting under color of state law to deprive any 

person of “life, liberty, or property, without due process of law.” Thus, “[t]he requirements of ... 

due process apply only to the deprivation of interests encompassed by the Fourteenth 

Amendment’s protection of liberty and property.”24 Property interests, however, “take many 

forms,” and liberty includes “the right ... to engage in any of the common occupations of life, to 

acquite useful knowledge ... and to generally enjoy those privileges long recognized ... as 

essential to the orderly pursuit of happiness by free men.”25 Thus, “certainly where the State 

attaches ‘a badge of infamy’ to the citizen, due process comes into play.”26

In the seminal case of Dixon v. Alabama State Board of Education, issued in 1961, the 

United States Court of Appeals for the Fifth Circuit made clear that students have both a liberty 

and property interest in “the right to remain at a public institution of higher learning in which the 

plaintiffs [are] students in good standing.’”27 As the Supreme Court of the United States 

																																																												 23 See, e.g., West v. Atkins, 487 U.S. 42, 47 (1988) (multiple citations omitted). 

24 See Board of Regents v. Roth, 408 U.S. 564, 569 (1972); see also Marin v. University 

of Puerto Rico, 377 F. Supp. 613 (D.P.R. 1974) (“The relevant inquiry is whether plaintiffs’ 

interests affected here are within the concepts of ‘liberty’ or ‘property’ protected by the due 

process clause.”). 

25 See Roth at 572, 576. 

26 See Wisconsin v. Constantineau, 400 U.S. 433, 437 (1972) (citation omitted); accord

Goss v. Lopez, 419 U.S. 565, 573-75 (1975) (quoting Constantineau, 400 U.S. at 437) (observing 

that “[t]he Due Process Clause also forbids arbitrary deprivations of liberty,” where “a person’s 

good name, reutation, honor, or integrity is at stake because of what the government is doing to 

him.”). 

27 See Marin, 377 F. Supp. at 621 (bracketing in original) (quoting Dixon v. Alabama 

State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930 (1961)); 

Blanton v. State University of New York, 489 F.2d 377, 385 (2d Cir. 1973) (characterizing 

Dixon as “the path-breaking decision recognizing the due process rights of students at a state 

university”); cf. Goss, 419 U.S. at 573-75 (secondary education case holding that “on the basis of 

state law, appellees plainly had legitimate claims of entitlement to a public education”).

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Page 13 – Plaintiff Brandon Austin’s Memorandum in Opposition

observed in Goss v. Lopez, a 1975 decision, “Since the landmark decision of the Court of 

Appeals for the Fifth Circuit in Dixon ... , the lower federal courts have uniformly held the Due 

Process Clause applicable to decisions made by tax-supported educational institutions to remove 

a student from the institution long enough for the removal to be classified as an expulsion.”28 

Indeed, in the words of one District Court, over forty years ago:

The right to engage in a chosen occupation is meaningless if one is 

unable to obtain the training it requires; similarly, the right to 

acquire useful knowledge implies a right of access to institutions 

dispensing such knowledge. It is too late in the day, now that the 

right privilege distinction is dead and buried, ... to argue that the 

right to attend a public educational institution to which one is 

admitted or attending as a student in good standing is not within 

the “liberty” protected by the due process clause. ...

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. Roth, supra, 408 

U.S. at 573. Suspension from a public college is a mark on one’s 

record that may well preclude further study at any public and many 

private institutions and limit the positions one can qualify for after 

termination of one’s studies. For all of these reasons, we hold that 

the due process clause applies to educational suspensions.29

Nearly twenty years later, another District Court, summarizing subsequently decided 

authorities, “found that Plaintiff had a protectible property interest in continued enrollment, free 

from arbitrary state action, at the Medical College,” and denied a motion to dismiss.30

Against this backdrop, this Court should readily reject the Defendants’ argument that Mr. 

Austin had neither a property nor a liberty interest at stake. Contrary to the Defendants’ 

argument about state law, these federal decisions provide ample support for the proposition that, 

at all relevant times, it was well-established that Mr. Austin had a constitutionally protected 

																																																												 28 See Goss, 419 U.S. at 576 n.8 (citing Black Coalition v. Portland School District No. 1, 

484 F.2d 1040 (9th Cir. 1973)) (multiple additional citations omitted). 

29 See Marin, 377 F. Supp. at 621-22 (bracketing in original) (multiple citations omitted). 

30 See Lewin v. Medical College, 910 F. Supp. 1161, 1164 (E.D. Va. 1996). 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 19 of 43
Page 14 – Plaintiff Brandon Austin’s Memorandum in Opposition

property and liberty interest in attending the University, having his scholarship renewed by the 

University, and being free from the stigma associated with a disciplinary suspension, and other 

state-imposed stigma. Indeed, the Defendants essentially ignore the authorities cited above, and 

instead rely upon three unpublished, non-binding, and highly distinguishable decisions. 

In the first decision, Ryan v. Harlan, this Court rejected a § 1983 claim brought by a parttime graduate student, not then enrolled in any graduate classes, alleging that the defendants 

violated “his due process rights by preventing him from receiving financial aid so that he could 

attend courses” and unlawfully arrested him. In Ryan, this Court merely observed that “[c]ourts 

are split on the question of whether a graduate level student has a constitutionally protected 

interest in completing his education.” In the second decision, Harrell v. Southern Oregon 

University, the pro se plaintiff, who “lost no privileges” as a result of the defendant’s conduct, 

sued Southern Oregon University. This Court noted, incorrectly we would contend, that the 

Plaintiff had no property interest in his education; in any event, this Court held that, “[e]ven if 

Plaintiff did have a property interest, he cannot show that he suffered a deprivation.” Finally, in 

Fernandez v. Rosenzwieg, this Court stated, “There is no case holding that a student has a 

federally-protected due process, property or liberty interest in continued enrollment in or 

graduation from a state university. This court will not so hold.” Again, with respect, from the 

Fifth Circuit’s decision in Dixon on forward, numerous federal courts including the Supreme 

Court have recognized or assumed the existence of such interests.31 

																																																												 31 See, e.g., Dixon, 294 F.2d at 150 (seminal case, involving Alabama State College); 

Blanton, 489 F.2d at 385 (characterizing Dixon as “the path-breaking decision recognizing the 

due process rights of students at a state university”); Marin, 377 F. Supp. at 621 (bracketing in 

original) (“Suspension from a public college is a mark on one’s record that may well preclude 

further study at any public and many private institutions and limit the positions one can qualify 

for after termination of one’s studies. For all of these reasons, we hold that the due process 

clause applies to educational suspensions.”); Hart v. Ferris State College, 557 F. Supp. 1379, 

1382 (W.D. Mich. 1983) (concluding that “the threat of suspension or expulsion implicates ... 

property and liberty interests in public education and reputation, and that such interests are 

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Page 15 – Plaintiff Brandon Austin’s Memorandum in Opposition

For the same reasons, this Court should hold that Mr. Austin had property and liberty 

interest in playing for the University’s basketball team, having his scholarship renewed by the 

University or receiving a scholarship from another Division I university, and receiving an NBA 

contract, certainly as they related to Mr. Austin’s relationship with Oregon. While we 

acknowledge the cases cited by the Defendants, those cases are non-binding and largely address 

suits by students against the NCAA, which the Supreme Court long ago ruled is not a state 

actor.32 In Hall v. University of Minnesota, by contrast, the District Court granted an injunction 

in favor of a student-athlete in circumstances analogous to the circumstances of this case:

The private interest at stake here, although ostensibly 

academic, is the plaintiff’s ability to obtain a “no cut” contract with 

the National Basketball Association. The bachelor of arts, while a 

mark of achievement and distinction, does not in and of itself 

assure the applicant a means of earning a living. This applicant 

seems to recognize this and has opted to use his college career as a 

means of entry into professional sports as do many college 

athletes. His basketball career will be little affected by the absence 

or presence of a bachelor of arts degree. This plaintiff has put all 

of his “eggs” into the “basket” of professional basketball. The 

plaintiff would suffer a substantial loss if his career objectives 

were impaired.33

Finally, this Court should reject the Defendants’ “thrown-in” argument that “the 

University was not bound to the administrative procedures provided by ORS 183.413-.497 

because ORS 351.088 grants the University the authority to establish [its own] adjudicative 

																																																												

within the purview of the due process clause of the Fourteenth Amendment”); Hall v. University 

of Minnesota, 530 F. Supp. 104, 107 (D. Minn. 1982) (“A student’s interest in attending a 

university is a property right protected by due process.”); accord Board of Curators of University 

of Missouri v. Horowitz, 435 U.S. 78, 86 (1978) (academic dismissal case holding that, even 

assuming that a medical student has a liberty or property interest, “respondent has been awarded 

at least as much due process as the Fourteenth Amendment requires”); Regents of University of 

Michigan v. Ewing, 474 U.S. 214, 222 (1985) (“We therefore accept the University’s invitation 

to assume the existence of a constitutionally protectible property right in Ewing’s continued 

enrollment ... .”); Tigrett v. Rector and Visitors of University of Virginia, 290 F.3d 620, 627 

(4th Cir. 2002) (assuming a matriculated student’s property interest in a university education 

without deciding whether one exists).

32 See NCAA v. Tarkanian, 488 U.S. 179 (1988).

33 See Hall, 530 F. Supp. at 108.

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Page 16 – Plaintiff Brandon Austin’s Memorandum in Opposition

procedures.” The University asserts, in a classic unsupported ipse dixit on a motion to dismiss, 

that “the University established procedures for administrative conferences .. and panel hearings 

... as the exclusive procedures for adjudicating alleged violations of its Student Conduct Code.” 

This is a motion to dismiss, not a motion for summary judgment, and without discovery, this 

assertion simply cannot be evaluated. Moreover, in footnote 2 to their brief, they appear to 

undercut this argument by stating: “At the time of the events relevant to the Complaint, the 

University’s Student Conduct Code was subject to the 2014 edition of the Oregon Administrative 

Rules. The Student Conduct Code has since been amended and renamed as a University policy.”

b. The Individual Defendants are Not Entitled to Qualified Immunity

Officials are only shielded by qualified immunity “insofar as their conduct does not 

violate clearly established statutory or constitutional rights of which a reasonable person would 

have known.”34 Indeed, “[t]o defeat a qualified immunity defense, the officials need only have

fair warning that their alleged conduct was unconstitutional.”35 Ultimately, “[c]ourts are charged 

with the responsibility of ensuring that the defense of qualified immunity gives no more 

protection than is necessary for the official in question to effectively fulfill his duties,” because 

“[e]ach additional measure of protection afforded government officials inevitably divests 

individual citizens of some remedies for violations of their constitutional rights.”36 

Here, the individual Defendants argue it “could not have been apparent to Martin, 

Gottfredson, Holmes, or Weintraub that their alleged conduct violated the Constitution.” This is 

simply untrue. As demonstrated by the authorities cited above, Mr. Austin’s clearly established 

right to due process in the circumstances presented was violated from Dr. Gottfredson’s initial 

																																																												 34 See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

35 See Lawrence v. City of St. Paul, 740 F. Supp. 2d 1026, 1043 (D. Minn. 2010) 

(quoting Brown v. Fortner, 518 F.3d 552, 561 (8th Cir. 2008)) (internal quotation marks 

deleted); accord Cohen v. San Bernardino Valley Coll., 92 F.3d 968, 973 (9th Cir. 1996)).

36 See In re Cincinnati Radiation Litigation, 874 F. Supp. 796, 807-08 (D. Ohio 1995). 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 22 of 43
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press conference imposing discipline without a hearing, through Ms. Martin’s suspension of Mr. 

Austin and refusal to modify that suspension on impermissible grounds, through Mr. 

Weintraub’s actions in connection with conducting the hearing, through Dr. Holmes’ refusal to 

hear an appeal. As discussed in detail below, this right certainly included the right to confront 

and cross-examine witnesses, have access to statements, and have a true opportunity to defend 

himself, as opposed to the nominal “opportunity to be heard” urged by the Defendants. Though 

the Defendants appear to claim that the circumstances were novel (a dubious claim), “officials 

can still be on notice that their conduct violates established law even in novel factual 

circumstances.”37

c. Mr. Austin Did Not Waive His Right to Due Process

The Defendants next argue that Mr. Austin waived his rights because, through counsel, 

he chose the “administrative conference” option. In support of this argument, the Defendants 

rely upon Davies v. Grossmont Union High School District, which held that “constitutional 

rights may ordinarily be waived if it can be established by clear and convincing evidenc that the 

waiver is voluntary, knowing and intelligent.” 

Here, there is no evidence, much less “clear and convincing evidence,” of voluntary, 

knowing, and intelligent waiver. It was clear to Mr. Austin’s counsel that the University and its 

representatives, who refused to even acknowledge the request of Mr. Austin’s counsel for a 

contested case hearing, were not going to grant her request for a contested case hearing, which 

would have provided the requisite due process.

38 Ultimately, as the University was only 

providing two vastly inferior options, a “panel hearing” and an “administrative conference,” 

neither of which provided the requisite due process, and the University was requiring Mr. Austin 

to choose between one of the two options, Mr. Austin’s counsel accepted the “administrative 

																																																												 37 See Hope v. Pelzer, 536 U.S. 730, 741 (2002). 

38 See Exhibit A, ¶¶ 52-53. 

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Page 18 – Plaintiff Brandon Austin’s Memorandum in Opposition

conference” option.39 Mr. Austin’s counsel was not asked to sign, and did not sign, a waiver of 

Mr. Austin’s due process rights, and would never have signed such a waiver; moreover, Mr. 

Austin’s counsel never waived Mr. Austin’s due process rights by choosing the “administrative 

conference” option over the “panel hearing” option, neither of which provided the due process 

protections that Mr. Austin’s counsel had expressly requested.40 It is simply nonsensical to 

suggest, as the Defendants apparently do, that they can be relieved of their constitutional 

obligations simply by providing two options, neither of which comports with applicable due 

process requirements. 

Finally, though the Defendants fail to state so, Davies further provides that, even where 

there is a clear, voluntary, and intelligent waiver, a court must also consider whether public 

policy demands that the court not enforce the waiver.41 All of the policy reasons supporting a 

finding that Mr. Austin has a property and liberty interest make clear that any possible waiver, 

which in any event did not occur, should not be enforced by this Court.

d. Mr. Austin was Entitled to Far More than a Nominal “Notice and 

Opportunity to Be Heard”

The University next contends that Mr. Austin’s “Fourteenth Amendment rights were not 

violated because he received constitutionally sufficient due process.” Tellingly, this argument is 

merely two paragraphs long and contains no analysis. 

“Due process ... in not a fixed or rigid concept, but, rather, is a flexible standard which 

varies depending upon the nature of the interest affected, and the circumstances of the 

deprivation.”42 Among other things, courts have held that the right to cross-examine witnesses 

may be required in some school disciplinary hearings, namely where a disciplinary hearing “had 

																																																												 39 See Exhibit A, ¶ 54.

40 See Exhibit A, ¶ 54. 

41 See Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1394 (9th Cir. 1991).

42 See Gorman v. University of Rhode Island, 837 F.2d 7 (1st Cir. 1988) (citing Matthews 

v. Eldridge, 424 U.S. 319, 334 (1976)). 

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Page 19 – Plaintiff Brandon Austin’s Memorandum in Opposition

resolved itself into a problem of credibility.”43 Indeed, in Winnick v. Manning, the Second 

Circuit held, in a case involving a substantial suspension of a state university student, as follows:

Secondly, if this case had resolved itself into a problem of 

credibility, cross-examination of witnesses might have been 

essential to a fair hearing. [Citation omitted.] This was not a case, 

however, where the decision maker had to choose to believe either 

the accused or his accuser. Rather, as the district court points out, 

Dean Hewes’ credibility was not at issue. The critical fact about 

Hewes’ statement was that he witnessed appellant’s presence and 

conduct in the vicinity of the disturbance. Since this crucial fact 

was admitted by Winnick himself, cross-examination would have 

been a fruitless exercise.44

In Marin, the District Court similarly held that, “in the normal case,” cross-examination 

and other procedural safeguards would be required:

But no sound reason appears why, in light of the 

individual’s significant interest, these state goals, however, 

important, need be vindicated in the normal case without (1) 

adequate advance notice to the student of (a) the charges, (b) the 

specific, previously promulgated regulations under which the 

charges are brought, and (c) the evidence against the student; (2) a 

full, expedited evidentiary hearing (a) presided over by an 

impartial, previously uninvolved official, (b) the proceedings of 

which are transcribed, at which the student (c) can present 

evidence and (d) cross-examine opposing witnesses, (e) with the 

assistance of retained counsel; and (3) a written decision by the 

presiding official encompassing (a) findings of fact, (b) the 

substantial evidence on which the findings rest, and (c) reasons for 

the conclusion.45

Less process may be due in suspensions for academic reasons; indeed, in Horowitz, a 

1977 decision, the Supreme Court observed, “Since the issue first arose 50 years ago, state and 

																																																												 43 See Winnick v. Manning, 460 F.2d 545, 550 (2d Cir. 1972).

44 See id.; see also Blanton, 489 F.2d at 385 (internal alterations and quotation marks 

omitted) (noting that, in Winnick, the Second Circuit made clear “that if a case of a substantial 

suspension of a state university student has resolved itself into a problem of credibility, crossexamination of witnesses might be essential to a fair hearing”); Gorman, 837 F.3d at 16 (holding 

that due process was provided because “Gorman had the opportunity to cross-examine his 

accusers as to the incidents and events in question, and there is no evidence that any limitation on 

Gorman’s cross-examination prevented him from eliciting the truth about the facts and events in 

issue”).

45 See Marin, 377 F. Supp. at 623 (multiple citations omitted). 

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lower federal courts have recognized that there are distinct differences between decisions to 

suspend or dismiss a student for disciplinary purposes and similar actions taken for academic 

reasons which may call for hearings in connection with the former but not the latter.”46

Thus, contrary to the Defendants’ argument, at all relevant times, it was clearly 

established that, given the seriousness of the alleged infraction, the possible consequences to Mr. 

Austin, 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 Mr. Austin 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. 

e. Finally, Mr. Austin Has Stated Claims for Violations of his 

Substantive Due Process Rights

“[T]he due process clause includes a substantive component which guards against 

arbitrary and capricious government action.”47 “The concept of ‘substantive due process,’ 

semantically awkward as it may be, forbids the government from depriving a person of life, 

liberty, or property in such a way that ‘shocks the conscience’ or ‘interferes with rights implicit 

in the concept of ordered liberty.’”48 Of course, “[t]o establish a substantive due process claim, a 

plaintiff must, as a threshold matter, show a government deprivation of life, liberty, or 

property.”49

																																																												 46 See Horowitz, 435 U.S. at 86; accord Gaspar v. Bruton, 513 F.2d 843 (10th Cir. 1975). 

In Horowitz, the Supreme Court held that, even assuming that a medical student a liberty or 

property interest, “respondent has been awarded at least as much due process as the Fourteenth 

Amendment requires.” See id. at 85-86; accord Ewing, 474 U.S. at 222.

47 See Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398 (9th Cir 1989). 

48 See, e.g., Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1998) (quoting United 

States v. Salerno, 481 U.S. 739, 746 (1987)).

49 See id. 

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Here, as discussed in detail above, Mr. Austin has demonstrated a deprivation of liberty 

and property by individuals acting under color of state law. Moreover, this Court should find 

that the conduct of each of the individual Defendants is conscience-shocking:

• The University’s President, Dr. Gottfredson, in effect imposed discipline upon 

Mr. Austin without due process by holding a press conference and making a public statement 

condemning Mr. Austin. Despite the “insurmountable” barrier to prosecution, and the fact that 

the University had not even started the hearing process, Dr. Gottfredson pronounced, “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.” The statement included the conclusion that the accuser was a 

“survivor,” a loaded statement about Mr. Austin’s gender (“as a father, I was appalled at what I 

read”), and the statement that Mr. Austin would “not be playing basketball at Oregon again.”

• At a proximate point in time, Defendant Chicora Martin, the Assistant Dean of 

Students at the University, who had initially scheduled the “emergency” hearing to expel Mr. 

Austin and the other two basketball players, and then modified the suspension, again suspended 

Mr. Austin and the other two basketball players, and then singled Mr. Austin out. 

• The “administrative conference” conducted by Defendant Sandy Weintraub, the 

Director of Student Conduct & Community Standards at the University of Oregon, was nothing 

less than an unconstitutional “kangaroo court” scenario of the very worst order, in which Mr. 

Austin was not even provided with a basic opportunity to properly respond to all information 

provided, and to contact and call all relevant and necessary witnesses. Mr. Weintraub ruled 

against Mr. Austin, suspending him from the University from four to ten years, long enough for 

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Page 22 – Plaintiff Brandon Austin’s Memorandum in Opposition

the removal to be the functional equivalent of an expulsion from the University, and refused to 

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

• Last, but not least, Defendant Robin Holmes, Vice President for Student Life at 

the University of Oregon, was charged with the responsibility of hearing an appeal. Dr. Holmes, 

however, refused to respond to Mr. Austin’s request for an appeal and did not return multiple 

phone calls from Mr. Austin’s counsel. This is, indeed, outrageous.

2. Contrary to the Defendants’ Second Argument, Mr. Austin Has Plausibly 

Alleged Violations of Title IX

Mr. Austin acknowledges that his Title IX claim can only be directed at the University. 

The Defendants, conceding that Mr. Austin’s Title IX claim is otherwise legally sound,50 instead 

attack that claim factually, insiting that it has not been plausibly pled. This argument fails.

In Mr. Austin’s Title IX claim, he incorporates his previous allegations and then alleges:

72. Title IX of the Education Amendments of 1972 (20 

U.S.C. § 1681, et seq.) provides, in relevant 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.”

73. The University 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.

																																																												 50 Indeed, he only other “legal” challenge raised by the Defendants is the contention, set 

forth in a footnote, that Stanley v. Trustees of California State University, 433 F.3d 1129 (9th Cir 

2006), 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. 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. 

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Page 23 – Plaintiff Brandon Austin’s Memorandum in Opposition

74. To assist schools with implementing Title IX and its 

regulations, the Office of 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 ... .”

75. The University (by and through its agents and 

employees acting within the scope of their agency and 

employment, including the Defendants) deprived Mr. Austin, on 

the basis of his sex, of his Title IX rights to among other things due 

process and equal protection through the improper administration, 

and/or the existence, in its current state, of the University’s policies 

and procedures.

76. First, the University engaged in selective 

enforcement in violation of Title IX, and discriminated against Mr. 

Austin based on his sex and, as a result, Mr. Austin has been 

seriously and irreparably damaged.

77. Regardless of his guilt or innocence (and, to be 

clear, Mr. Austin was and is 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 Mr. Austin is a male, and the accuser is a female.

78. On April 14, 2014, the Lane County 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.” (Emphasis added.)

79. In or around early May 2014, presumably in 

response to the publication of the police report, the District 

Attorney’s office issued a lengthy document outlining 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.” (Emphasis added.)

80. Dr. Gottfredson’s pronouncement on behalf of the 

University at the outset of the disciplinary proceedings, however, 

included the conclusion that the female accuser was a “survivor,” 

and the statement that “as a father, I was appalled at what I read.” 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 29 of 43
Page 24 – Plaintiff Brandon Austin’s Memorandum in Opposition

81. On information and belief, the University has never 

taken action against a female student for engaging in the type of 

conduct that Mr. Austin allegedly engaged in.

82. On information and belief, the University has never 

taken action against a female student for making a false allegation 

of the kind involved in this matter.

83. On information and belief, males invariably lose 

when charged with sexual misconduct at the University.

84. Second, there was an erroneous outcome from a 

flawed proceeding, in violation of Title IX.

85. The University discriminated against Mr. Austin by 

failing to comply with its own procedures and by failing to comply 

with the requirements of Title IX, in order to reach a predetermined result, due to his sex, and gender stereotypes.

86. The University created an environment in which 

Mr. Austin, an accused male student, was so fundamentally denied 

due process as to be virtually assured a finding of guilt.

87. Such a biased and one-sided process deprived Mr. 

Austin, as a male student, of educational opportunities on the basis 

of sex.

88. The University conducted its “investigation” and 

subsequent hearing in a manner that was biased against the 

accused, Mr. Austin, based on sex.

89. From the outset, the investigation and hearing 

processes were slanted in favor of the female accuser, because of 

her sex. The University’s representatives, including its president, 

accepted her statements at face value despite the prosecutor’s 

statements, and granted the female accuser the presumption of 

truth because she is female.

90. Mr. Austin did not have an equal or fair opportunity 

to present relevant witnesses, to present evidence (as described 

above), and to present evidence about the accuser’s motives to 

present false accusations.

91. Those involved with the hearing process were 

improperly and/or insufficiently trained under Title IX.

92. The University responded to the accuser’s 

accusations with a series of arbitrary, capricious, discriminatory, 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 30 of 43
Page 25 – Plaintiff Brandon Austin’s Memorandum in Opposition

and gender-based actions directed toward a predetermined 

outcome: Mr. Austin’s suspension from the University.

93. Third, the University, in violation of Title IX, 

demonstrated a deliberate and systematic indifference to the rights 

of Mr. Austin, due to his sex.

94. The University’s actions, and inactions, were 

unreasonable in light of the known circumstances, including but in 

no way limited to the District Attorney’s office declining to 

prosecute, and issuing a document outlining numerous weaknesses 

in the case, and concluding that those weaknesses presented “an 

insurmountable barrier to prosecution.” (Emphasis added.)

95. But for the obvious gender bias, the outcome of the 

University proceeding would have been different. ...51

Under the federal pleading standard, a plaintiff must allege “enough facts to state a claim 

to relief that is plausible on its face.”

52 We could not locate a Ninth Circuit opinion directly 

addressing the pleading standard in a Title IX claim, and neither could the Defendants. We do 

note that, in Emeldi v. University of Oregon, Chief Judge Kozinski, dissenting from the denial of 

a petition for en banc rehearing, observed that the panel’s opinion implied “that the Title VII 

pleading standard applies to Title IX cases.”53

In Doe v. Brown University, the District Court pointed out that “cases attacking 

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

categories ... ‘erroneous outcome’ and ‘selective enforcement.’”54 In the first category, 

“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 

																																																												 51 See Exhibit A, ¶¶ 71-99 (underlining in original). Mr. Austin’s allegations regarding 

the damages flowing from the Title IX violation appear in ¶¶ 96-99.

52 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

53 See Eleldi v. University of Oregon, 698 F.3d 715, 720 (9th Cir. 2012) (Kozinski, C.J., 

dissenting) (“Even accepting that the Title VII pleading standard applies to Title IX cases ... .”); 

accord Garcia-Catalan v. U.S., 734 F.3d 100, 104 (1st Cir. 2012) (noting that the plausibility 

standard must be treated flexibly in situations where a plaintiff is alleging discrimination).

54 See Doe, 2016 U.S. Dist. LEXIS 21027, at *15 (some internal quotation marks 

omitted) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)). 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 31 of 43
Page 26 – Plaintiff Brandon Austin’s Memorandum in Opposition

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

erroneous finding.”55 “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.”56 Thus, in Wells v. Xavier, the District Court 

denied a motion to dismiss the plaintiff’s Title IX claim, finding that his complaint “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.”57

Here, Mr. Austin has plainly alleged particular facts sufficient to cast articulable doubt

upon the accuracy of the outcome of the disciplinary proceeding. Most significantly, Mr. 

Austin’s Second Amended Complaint alleges numerous facts making it very clear that the sexual 

activity that occurred was completely consensual. He also alleges that he was prepared to call 

disinterested third-party witnesses who would have supported him. Indeed, the District Attorney 

determined that she would not be pressing charges against Mr. Austin because the accuser’s 

story made little sense, and the evidence did not warrant prosecution.

58 

Similarly, Mr. Austin has alleged particular circumstances suggesting that gender bias 

was a motivating factor. He plausibly alleges that the University created an environment in 

which Mr. Austin, an accused male student, was so fundamentally denied due process as to be 

virtually assured a finding of guilt, and such a biased and one-sided process deprived Mr. Austin, 

as a male student, of educational opportunities on the basis of sex. He plausibly alleges that the 

University conducted its “investigation” and subsequent hearing in a manner that was biased 

against the accused, Mr. Austin, based on sex. Indeed, from the outset, the investigation and 

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

56 See id. (quoting Yusuf, 35 F.3d at 715) (emphasis added). 

57 See Wells v. Xavier, 7 F. Supp. 3d 746, 751 (S.D. Ohio 2014) (emphasis added).

58 See Exhibit A, ¶¶ 37, 39. 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 32 of 43
Page 27 – Plaintiff Brandon Austin’s Memorandum in Opposition

hearing processes were slanted in favor of the female accuser, because of her sex. Just as Mr. 

Austin plausibly pleads, all of the University’s representatives, from Ms. Martin, who 

immediately suspended Mr. Austin, who had done nothing wrong, rather than the accuser, for 

making a false report; to Dr. Gottfredson, who held a press conference to condemn Mr. Austin

notwithstanding the prosecutor’s statements just the night before; to Mr. Weintraub, who 

presided over the hearing and refused to provide due process; to Dr. Holmes, who refused to hear 

the appeal, accepted the female accuser’s statements at face value, and granted the female 

accuser the presumption of truth because she is female. Evidencing that the University had 

prejudged Mr. Austin’s guilt, and done so on the basis of Mr. Austin’s sex/gender, no one less 

than the President of the University held a press conference which announced the gender-based, 

loaded view that the female accuser was a “survivor,” made the gender-based, loaded statement 

that “as a father, I was appalled at what I read,” and summarily concluded that Mr. Austin was 

guilty. Mr. Austin plausibly alleges that, with regard to the hearing, he did not have an equal or 

fair opportunity to present relevant witnesses, and to present evidence, including evidence about 

the accuser’s motives to present false accusations. Mr. Austin plausibly pleads that those 

involved with the process were improperly and/or insufficiently trained under Title IX, and the 

University responded to the accusations with a series of arbitrary, capricious, discriminatory, and 

gender-based actions directed toward a predetermined outcome: his suspension.

In the second category, “selective enforcement” cases, the plaintiff “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.”59 Here, Mr. Austin plausibly 

alleges that, regardless of his guilt or innocence, the severity of the penalty, as well as the 

decision to initiate the proceeding in the first place, were affected by the fact that Mr. Austin is a 

																																																												 59 See Doe, 2016 U.S. Dist. LEXIS 21027, at *17. 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 33 of 43
Page 28 – Plaintiff Brandon Austin’s Memorandum in Opposition

male, and the accuser is a female. Besides being supported by Dr. Gottfredson’s shocking

pronouncement on behalf of the University, Mr. Austin alleges three things “on information and 

belief”: “the University has never taken action against a female student for engaging in the type 

of conduct that Mr. Austin allegedly engaged in,” “the University has never taken action against 

a female student for making a false allegation of the kind involved in this matter,” and “males 

invariably lose when charged with sexual misconduct at the University.” The undersigned 

believes these facts to be true, but they cannot be confirmed without discovery solely in 

possession of the University. Though the University takes issue with “on information and 

belief,” the District Court in Doe v. Brown made clear that “[t]his manner of pleading is a 

permissible way to indicate a factual connection that a plaintiff reasonably believes is true but for 

which the plaintiff may need discovery to gather and confirm its evidentiary basis.’”60 Indeed, as 

one District Court analyzing an “erroneous outcome” claim recently explained:

Plaintiffs’ erroneous outcome allegations would be insufficient if 

they had simply stated something akin to: “Upon information and 

belief, procedural defects were motivated by gender bias.” 

However, in this case Plaintiffs have pleaded specific factual 

allegations. ... The fact that they are pleaded upon information 

and belief is of no moment because the alleged facts are peculiarly 

within the possession or control of SU Defendants.61

For the same reasons, Mr. Austin’s allegations of “deliberate indifference” have been 

plausibly pled. If this Court believes there is a pleading deficiency within this or any other 

portion of the Second Amended Complaint, it should provide an opportunity to amend.62

																																																												 60 See Doe, 2016 U.S. Dist. LEXIS 21027, at *27 (internal quotation marks omitted). 

Doe v. Columbia University, 101 F. Supp. 3d 356, 374 (S.D.N.Y. 2015), which Oregon heavily 

relies upon here, is believed to be on appeal to the Second Circuit.

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

at *41 (D. Md. August 21, 2015); see also Grajales v. P.R. Ports Auth., 682 F.3d 40, 49 (1st Cir. 

2012) (“Smoking gun proof of discrimination is rarely available ... at the pleading stage ... .”).

62 See, e.g., Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (providing that, 

ordinarily, a District Court should provide leave to amend unless it “determines that the pleading

could not possibly be cured by the allegation of other facts”).

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 34 of 43
Page 29 – Plaintiff Brandon Austin’s Memorandum in Opposition

3. This Court Should Reject the Defendants’ Arguments About Preclusion

The Defendants next argue that the Plaintiff’s suspension from the University was a final 

administrative order, and therefore the doctrine of issue preclusion prevents Mr. Austin from “relitigating” his claims in this Court. Self-evidently, every factor governing an issue preclusion 

analysis weighs against issue preclusion even possibly being applicable here. First, the issues in 

this case (e.g., the issue of whether Mr. Austin’s § 1983 rights were violated, whether the 

University violated Title IX, and whether the Defendants are liable under the state-law theories 

asserted in the Second Amended Complaint) have never been litigiated. Second, Mr. Austin has 

certainly never had a full and fair opportunity to be heard on the issues. Third, the Defendants 

were not parties in the alleged prior proceeding. Indeed, we have located absolutely no case, and 

the Defendants cite no case, in which the result of a hearing that lacks the requisite due process 

could possibly be given preclusive effect in a subsequent challenge to the process provided.

Of course, there is no such case: if a defendant could escape § 1983 liability for failure to 

provide due process by providing a hearing without due process, and then claiming the outcome 

precludes any challenge, there would be no such thing as a § 1983 claim for failure to provide 

due process. Similarly, if a university could escape liability under Title IX by engaging in 

selective enforcement on the basis of gender, and conducting a flawed proceeding that leads to 

an erroneous outcome, and then claiming that the outcome precludes any challenge, there would 

be no such thing as a Title IX claim for selective enforcement, or an erroneous outcome from a 

flawed proceeding. This Court should reject such circular logic on the part of the Defendants.

Similarly, this Court need not labor long on the Defendants’ argument that Mr. Austin 

was required to take an appeal before bringing this case. Tellingly, the Defendants cite no case 

providing that an appeal is required before a § 1983, Title IX, or even a state-law cause of action 

can be brought. In fact, the Supreme Court long ago made clear that, because one of the 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 35 of 43
Page 30 – Plaintiff Brandon Austin’s Memorandum in Opposition

purposes underlying 42 U.S.C. § 1983 was “to provide a remedy in the federal courts 

supplementary to any remedy any State might have,” a plaintiff is not required to exhaust any 

administrative remedies before pursuing a § 1983 claim.63 Similarly, the Supreme Court long 

ago made clear that exhaustion of administrative remedies is not required with regard to Title IX 

claims.64 Even if Mr. Austin were somehow required to exhaust administrative remedies with 

regard to his federal claims or his state-law claims (and of course he was not), Dr. Holmes, the 

individual tasked by the University with handling an appeal, refused to respond to Mr. Austin’s 

request for an appeal and did not return multiple phone calls from Mr. Austin’s counsel.65 

Moreover, as Mr. Austin plausibly alleges in his Second Amended Complaint, an appeal would 

have plainly been futile.66

4. This Court Should Reject the Defendants’ Arguments in Favor of Dismissing 

Mr. Austin’s Tort Claims 

In Counts Three, Four, and Five of Mr. Austin’s Second Amended Complaint, he 

advances state-law claims for negligence, intentional infliction of emotional distress, and tortious 

interference with prospective economic relations. In their Motion, the Defendants assert that 

they are entitled to immunity under O.R.S. 30.265(6)(c) and (f), and further challenge the legal 

sufficiency of each of those counts, as well as Mr. Austin’s prayer for damages.

67 

a. The Defendants Are Not Entitled to Immunity Under O.R.S. 30.265

O.R.S. 30.265(6)(c) provides that “[e]very public body and its officers, employees and 

agents acting within the scope of their employment or duties ... are immune from liability for: ...

																																																												 63 See Damico v. California, 389 U.S. 416, 417 (1967) (citations omitted).

64 See Cannon v. University of Chicago, 441 U.S. 677, 687 n.8, 706 n.41 (1979); see also

Morgan v. U.S. Postal Serv., 798 F.2d 1162, 1165 (8th Cir. 1986) (affirming that Title IX does 

not include an exhaustion-of-administrative-remedies requirement).

65 See Exhibit A, ¶ 59. 

66 See Exhibit A, ¶ 62. 

67 The Defendants do not challenge the damages asserted in Mr. Austin’s claims under 42 

U.S.C. § 1983 and Title IX. 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 36 of 43
Page 31 – Plaintiff Brandon Austin’s Memorandum in Opposition

[a]ny claim based upon the performance of or the failure to exercise or perform a discretionary 

function or duty, whether or not the discretion is abused.” According to the Oregon Supreme 

Court, it has “has struggled with the concept over the years.”68 These facts do not present a close 

case and therefore this Court need not “struggle”: the Defendants’ only argument that they are 

immune from liability under O.R.S. 30.265(6)(c) is “because their decisions involved public 

policy and were made under the apparent authority of law.” The Defendants’ argument is utterly 

at odds with the plain language of the 30.265(6)(c), which provides no immunity in the 

circumstances presented. Certainly, the record as it stands at the motion-to-dismiss stage does 

not come close to supporting dismissal on discretionary immunity grounds.

The Defendants then argue that, because the University is a public body, and the 

individual Defendants were at all relevant times employees of the University acting within the 

course and scope of their employment, “[a]ny decision or action of Defendants made under the 

apparent authority of law was therefore immune from tort liability.” In so arguing, the 

Defendants ignore that O.R.S. 30.265(6)(f) in actuality provides immunity against “[a]ny claim 

arising out of an act done or omitted under apparent authority of a law, resolution, rule or 

regulation that is unconstitutional, invalid or inapplicable except to the extent that they would 

have been liable had the law, resolution, rule or regulation been constitutional, valid and 

applicable.” (Emphasis added.) The Defendants fail to cite what “law, resolution, rule or 

regulation” they seek shelter under, and are indeed simply attempting to fit a square peg into a

round hole. Moreover, Mr. Austin plausibly alleges that the Defendants acted in bad faith or 

with malice, and Mr. Austin expressly pleads as much.

69

																																																												 68 See Westfall v. State, 324 P.3d 440 (Ore. 2014). Certainly, discretionary immunity 

does not apply to “routine decisions made by employees in the course of their day-to-day 

activities, even though the decision involves a choice among two or more courses of action.” 

Lowrimore v. Dimmitt, 797 P.2d 1027 (Ore. 1990).

69 See Exhibit A, ¶ 115. 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 37 of 43
Page 32 – Plaintiff Brandon Austin’s Memorandum in Opposition

b. Mr. Austin has Stated Claims for Negligence, Intentional Infliction 

of Emotional Distress, and Tortious Interference

In Count Three, for negligence, Mr. Austin alleges that the Defendants “had a duty to Mr. 

Austin 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 Mr. Austin,” and failed to do so, 

leading to the damages set forth with specificity above. 

In their Motion, the Defendants argue that Mr. Austin cannot recover damages for 

“purely economic loss” or emotional distress because there is no “special relationship” between a 

school and its students. In arguing that the “economic loss” doctrine should apply, the 

Defendants ignore that numerous courts have held that student-athletes, as opposed to students 

generally, do have “special relationships” with the schools they attend.70 Mr. Austin’s pleading 

contains ample facts supporting a “special relationship” between Oregon and a student-athlete 

who had been recruited to transfer to Oregon to play college basketball. 

Finally, the Defendants briefly argue that what occurred was not a foreseeable risk. But

Mr. Austin alleges that, prior to the Defendants’ actions, he was regarded as one of 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 alleges that at all relevant times “the Defendants were aware 

of the foregoing facts.

71 It should have been foreseeable to the Defendants that their careless 

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

71 See Exhibit A, ¶¶ 67-68. 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 38 of 43
Page 33 – Plaintiff Brandon Austin’s Memorandum in Opposition

conduct with regard to Mr. Austin would stigmatize him and cause the harm claimed. As 

discussed above, Mr. Austin did not waive this claim when counsel agreed to the conference.

In Count Four, for intentional infliction of emotional distress, Mr. Austin alleges that the 

Defendants’ conduct “constituted an extraordinary transgression of the bounds of socially 

tolerable conduct,” and “were in bad faith, and/or taken with malice.”

For the reasons set forth above, there was a special relationship between Mr. Austin and 

the Defendants. Moreover, Mr. Austin alleges outrageous conduct: the University, through its 

agents and employees, railroaded Mr. Austin on the basis of sex/gender. Mr. Austin was 

prejudged despite the prosecutor’s statements. No one less than the University’s President, 

acting with the course and scope of his employment, held a press conference to publicly condem 

Mr. Austin, characterizing the accuser a “victim” when in fact that was untrue, and stating that 

he was “appalled.” The University’s agents and employees refused to provide Mr. Austin with 

anything close to fair process or a fair hearing (from refusing to modify Mr. Austin’s suspension 

because he had asserted his Miranda rights, to the hearing that lacked virtually any of the 

required procedural safeguards), concluded that he had engaged in a sexual assault when he had 

in fact done no such thing, and refused to even consider an appeal, stamping him with a “badge 

of infamy” that has followed him. This transgresses all bounds of socially tolerable conduct.

In Count Five, Mr. Austin alleges that the Defendants “intentionally, recklessly, and 

tortiously interfered with Mr. Austin’s prospective relationship with NBA teams” through the 

conduct described above, causing Mr. Austin to sustain significant damages. 

The University first argues that Mr. Austin cannot show a relationship with another party 

that would have “very likely resulted in a pecuniary benefit ... but for the defendant’s 

interference.” In reality, Mr. Austin alleges objectively verifiable monetary losses: he “was 

widely projected by experts in basketball and the NBA Draft to be selected in the first round of 

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 39 of 43
Page 34 – Plaintiff Brandon Austin’s Memorandum in Opposition

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.”

72 Mr. 

Austin further alleges that, as a direct and proximate result of the Defendants’ conduct, Mr. 

Austin no longer plays at a Division I school [and] has diminished chances of playing in the 

NBA ... .” Mr. Austin was not required to have “a business relationship with any NBA team at 

the time of his alleged injury.” Surely, the University is not suggesting that its players must have 

business relationships with NBA teams! Mr. Austin also plausibly alleges that the University 

and other Defendants acted with an improper purpose or used improper means. For the same 

reasons, Mr. Austin has plausibly alleged damages with regard to all of his tort claims.

Moreover, this Court should reject the Defendants’ “thrown-in” argument that Mr. Austin 

is precluded from bringing a tortious interference claim because it was not mentioned in the 

notice. As the Defendants concede, the notice was not required to specifically specify “the 

precise legal claim (e.g. tortious interference) that the plaintiff intends to assert.” As for the 

damages associated with the tortious intereference claim, plainly the notice, which stated that 

Mr. Austin “has been damaged by these actions,” made the University aware that damages 

claims were being asserted. No law says that more was required. The University also makes no 

showing as to what evidence it would have “collected” if the NBA had been mentioned.

5. This Court Should Reject the Defendants’ Arguments in Favor of Dismissing 

Mr. Austin’s Breach of Contract Claim

The University concludes by lodging two challenges to Mr. Austin’s breach of contract 

claim against it, which, and as a result of the Defendants’ breach suffered direct and 

consequential damages. 

																																																												 72 See Exhibit A, ¶¶ 67-68 (emphasis added). To be clear about this language, it is 

beyond dispute that the applicable CBA (http://www.nba.com/media/CBA101.pdf) guarantees a 

multi-million dollar salary for any individual drafted in the first round of the NBA Draft, and a 

player drafted in the first round would very likely receive “tens of millions of dollars in 

prospective economic advantage.”

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 40 of 43
Page 35 – Plaintiff Brandon Austin’s Memorandum in Opposition

The University concedes the scholarship agreement is a contract, but first argues that 

nothing within the scholarship agreement guarantees renewal. Mr. Austin, however, plausibly 

alleges that the University induced him to transfer from Providence (which had pleaded with Mr. 

Austin to stay) with the scholarship, and Mr. Austin had the objectively reasonable expectation, 

based upon the express terms of the scholarship, that the University of Oregon would renew his 

scholarship, and not act so as to deprive him of the fruits of the scholarship, and otherwise act in 

good faith vis-à-vis his scholarship. This Mr. Austin has more than plausibly pled, and this the 

University failed to do. 

The University further argues that Mr. Austin would only be entitled to expectation 

damages. Even if this is true, which it is not, that provides no reason for dismissing the claim. 

Moreover, in so arguing, the University ignores that Mr. Austin has pled an entitlement to 

consequential damages. As the University concedes, such damages are recoverable if they are 

foreseeable. Mr. Austin plainly alleges that the University and its agents and employees were 

fully aware of his NBA prospects and yet chose to act in the manner in which he did, making the 

damages foreseeable. And, again, those damages are not speculative. Prior to transferring to 

Oregon and the Defendants’ wrongful conduct, Mr. Austin was “widely projected by experts in 

basketball and the NBA Draft” to be drafted in the first round and receive guaranteed millions, 

and very likely receive endorsements worth much more. Mr. Austin alleges that, as a result of 

the breach, this has not occurred.

CONCLUSION

For the foregoing reasons, this Court should deny the Motion.

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 41 of 43
Page 36 – Plaintiff Brandon Austin’s Memorandum in Opposition

Dated: Tuesday, March 8, 2016 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 –

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

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 42 of 43
Page 1 – CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

I, Marianne Dugan, hereby certify that, on the date set forth below, I served a copy of the 

foregoing memorandum upon the following counsel of record via this Court’s mandatory 

Electronic Case Filing system:

Michelle Barton Smigel, P.C. (OSB No. 045530)

Michael Porter, P.C. (OSB No. 003560)

MILLER NASH GRAHAM & DUNN LLP

3400 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, Oregon 97204

Attorneys for the Defendants

Dated: Tuesday, March 8, 2016 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 –

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

Case 6:15-cv-02257-MC Document 22 Filed 03/08/16 Page 43 of 43