[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11081

____________________

JOHN DOE, 

Plaintiff-Appellant

Cross-Appellee,

versus

ROLLINS COLLEGE, 

Defendant-Appellee

Cross-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:18-cv-01069-RBD-LRH

____________________

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2 Opinion of the Court 21-11081

Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.

JORDAN, Circuit Judge: 

Jane Roe, a student at Rollins College, accused John Doe, a 

fellow student, of sexual assault. Following an investigation, Rollins determined that Doe violated its sexual misconduct policy. 

Doe was able to graduate and receive his undergraduate degree but 

was not allowed to participate in commencement/graduation ceremonies. Rollins imposed a sanction of dismissal, resulting in permanent separation of Doe without the opportunity for readmission; privilege restrictions, including a prohibition on participating 

in alumni reunion events on or off campus; and a contact restriction as to Roe. 

Doe sued Rollins in federal court, asserting two claims under 

Title IX, 20 U.S.C. § 1681—one for selective enforcement and one 

for erroneous outcome—and a third claim under Florida law for 

breach of contract. Following discovery, the district court excluded the opinions proffered by Doe’s expert as to Rollins’ purported gender bias. Then, on cross-motions for summary judgment, the district court (a) entered summary judgment in favor of 

Rollins on the Title IX claims and (b) entered partial summary judgment in favor of Doe on the breach of contract claim. 

On the Title IX claims, the district court concluded that 

there was “no evidence by which a reasonable juror could conclude 

[that] Rollins[’] conduct toward Doe was motivated by his gender.” 

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D.E. 156 at 16. On the breach of contract claim, the district court 

concluded that Doe had shown that Rollins breached a provision 

of its Title IX sexual misconduct policy stating that the process for 

resolving a sexual misconduct claim would typically be completed 

within 60 days. The investigation began in November of 2017, but 

Rollins did not complete it until March of 2018. See id. at 17.1

The district court did not enter judgment in favor of Doe on 

the contract claim because it concluded that a jury had to decide 

whether Rollins’ breach was material and caused harm. See id. at

26–27. The district court also ruled that there were factual questions as to whether Rollins’ inquiry into Doe’s sexual history was 

relevant and whether Rollins responded fairly and equitably to 

Roe’s allegations. See id. at 27–28.

After a three-day trial, the jury returned a verdict in favor of 

Rollins on the breach of contract claim. The jury found that Rollins’ breach of the 60-day provision was not material; that Rollins 

did not breach a contractual obligation to not have irrelevant prior 

sexual history considered in the investigation of Roe’s allegations; 

and that Rollins did not breach a contractual obligation to reach a 

timely and fair resolution of Roe’s allegations. 

This is Doe’s appeal. Following oral argument and a review 

of the record, we affirm. We conclude that the district court did 

1Doe submitted an appeal of the investigation, which was resolved in April of 

2018. See D.E. 61-4 at 22. The appeal resulted in a modification of sanctions 

such that Doe’s dismissal was made effective in the Spring of 2018. See id. 

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not abuse its discretion in precluding Doe’s expert from presenting 

opinions about Rollins’ purported gender bias, and that it correctly 

granted summary judgment in favor of Rollins on Doe’s two Title 

IX claims. On the breach of contract claim, we cannot review 

Doe’s challenge to the district court’s partial denial of summary 

judgment because materiality is not a pure legal issue under Florida 

law and was later resolved by the jury. Insofar as Doe contends 

that he was entitled to judgment as a matter of law on materiality, 

we disagree because the evidence on that issue was disputed and 

the jury could have found that the breach was not material. 

I 

 In his Title IX claims, Doe asserts that Rollins—based on its 

gender bias—selectively prosecuted him and erroneously found 

him to be in violation of its sexual misconduct policy. To provide 

the necessary context for these claims, we set out the different versions of events presented by Roe and Doe. 

A 

From 2014 to 2017, Doe was a student at Rollins. During 

that time, he met Roe, another student at Rollins, and the two became friends. They “hung out around campus, did homework” 

and “spent time together.” D.E. 61-4 at 5. On February 17, 2017, 

Doe invited Roe to his fraternity’s “Grab-a-Date” event. The event

was “champagne and shackles themed,” which meant that dates

were “zip-tie[d]” to one another until a shared “bottle of 

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champagne [was] empty.” D.E. 61-2, Exh. B at 18. Roe accepted 

Doe’s invitation, and the two went to the event together that evening. 

Later, in the early morning hours of February 18, Doe and 

Roe, along with others from the party, walked to a local bar. Eventually, Doe and Roe left the bar together and went to Doe’s room. 

But Doe’s and Roe’s recollections of how they ended up at Doe’s 

room, and what happened once there, differ. 

Roe stated that her “intention was to go to [her] own room 

to go to sleep, by [herself], because [she] was incoherently drunk 

and incredibly tired” but “in between ‘blackouts’ somehow [she] 

ended up in [Doe’s] dorm and room.” Id. at 20–21. She told Doe 

“multiple times that [she] wanted to leave and just go to bed in 

[her] own room but [Doe] insisted [they] hang out and to just wait 

[there in his room] because he had to go to the bathroom.” Id. at 

21. Roe—“too tired to argue, and too confused to want to go elsewhere”—saw Doe’s couch, laid down, and “fell asleep for what felt 

like 5 or 10 min[utes].” Id. When Doe returned, he picked a movie 

and Roe fell asleep again. While Roe was on the couch and as the 

movie was playing, Doe “started making out with [Roe] and touching [her] near [her] chest/bra area,” then “started touching [her] 

underwear and moved it aside and began penetrating [her] with his 

finger.” Id. 

Roe recounted “saying ‘[n]o’ and objecting [to] his advances 

through multiple parts of the beginning of this assault, but [her] 

right hand was trapped in the fold of the couch, and [her] left 

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trapped under him as he was on top of [her] and [she] was too tired, 

dizzy, and intoxicated to do anything other than try to say no.” Id. 

Roe continued to say “no” and fell in and out of sleep. She explained: 

As he was touching my thighs I said no, as he was 

touching my vagina I said no, and as he began penetrating me I said no[.] I do think during these no’s I 

was kissing him (in the sense where kissing means my 

lips were on his) at this point but I was intoxicated, 

falling in and out of sleep, and felt as though I was 

unable to move my own body. I remember seeing 

his penis out as he was on top of me and my right 

hand at my sides, trapped between the couch and my 

body, and my left hand under him, which he was now

moving towards his penis as I was saying no. This 

part of the contact was only for about 4 seconds at 

most (that my hand was touching his penis). 

Id. 

According to Roe, Doe asked “what[’]s wrong” multiple 

times and “discouraged [Roe] from leaving when [she] would express that [she] wanted to be in [her] own room.” Id. When Doe 

had “shifted off” of Roe to ask what was wrong, she sat up and “finally stood up in an attempt to get out and head towards the door.” 

Id. at 21–22. Doe “stopped [Roe] and was holding [her] arms and 

was saying things like ‘no, just stay’ and ‘we don’t have to have sex’ 

and ‘you can just sleep here’ and would keep trying to kiss [Roe] 

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and move [her] over to the bed.” Id. at 22. Roe, wanting to go to 

her own bed, left Doe’s room. 

Doe provided a very different account of the evening. While 

at the local bar, he and Roe sat “in the outdoor section” by themselves and “had normal conversation.” D.E. 61-2, Exh. C at 26. “It 

started getting late” and they “decided to return to [his] dorm room 

. . . to watch a movie.” Id. They “began walking and talking on 

the way back, and ultimately started holding hands until [they] arrived to [their] building on campus.” Id. Once they got to Doe’s 

room, Doe went downstairs to the water fountain with his roommate, who “asked if anything was going on between [Roe] and 

[Doe], as [Roe] appeared to be interested in [Doe] over the course 

of the night and was knowledgeable that the two of [them] had 

been talking regularly for quite some time.” Id. Doe “was not sure 

what to expect and was going to see where the night would take 

[him].” Id. 

Afterwards, in Doe’s room, Doe and Roe “played a movie 

on Netflix and sat next to each other.” Id. Doe described what 

happened next as follows:

I put my arm around [Roe], in which she was comfortable with. . . . we started kissing. We continued 

on and I started touching her intimate parts, in which 

she showed no resistance. I penetrated her digitally 

and there were no signs of her being uncomfortable. 

Eventually she paused, and I asked if everything was 

okay. I asked because I knew we had been friends for 

an extended period of time and perhaps getting 

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intimate was not worth losing a friendship over. She 

said that everything was fine and then continued to 

unbuckle my belt, unbutton my pants, and then exposing and touching my penis. In no way, shape or 

form did I cause her to touch my intimate body parts. 

We continued with kissing and forms of petting until 

[Roe] paused again. I asked if everything was okay, 

and this second time, she indicated that she wanted to 

stop. We stopped immediately and continued watching the movie for a little while longer. It had gotten 

late (after 2 AM) and I wanted to go to bed. I said that 

she was welcome to spend the night on the futon or 

to go home (right next door) if she wanted to. She 

stated that she wished to go home and I walked her 

out. 

Id. at 26–27. 

B 

A few days later, on February 22, 2017, Roe went to Rollins’ 

Title IX office and met with the Title IX Coordinator, Oriana Jiménez Guevara, to discuss what happened on February 17—an incident that she believed to be in violation of the Rollins Title IX sexual misconduct policy. See D.E. 56-5 at 2–3. Roe “chose not to 

exercise her right to request an investigation” at that time, but she 

“filed a report” and requested “interim measures” such as housing 

accommodations—moving to a different building and to a single 

room—as well as academic accommodations. See D.E. 56-2 at 117, 

123–124. 

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Later that year, in November of 2017, “an anonymous caller 

reported . . . that an individual with a name similar to [Doe’s] sexually assaulted three girls.” D.E. 56-5 at 3. Ms. Jiménez Guevara 

called Roe “to see if [Roe] had additional information about the 

caller.” Id. They also discussed whether Roe wanted to move forward with an investigation, and ultimately she decided to do so. 

 On November 20, 2017, Ms. Jiménez Guevara called Doe

and advised him that she needed to meet with him regarding a Title

IX case he was involved in. Doe met with Ms. Jiménez Guevara 

that day and was informed that a complaint alleging sexual misconduct had been made against him by Roe. Doe was also advised of 

“some of the rights that [he] had[,]” including the right to an advisor. See D.E. 61-4 at 24. According to Doe, during the meeting 

Ms. Jiménez Guevara said “something to the effect of, ‘[w]hen it’s 

all said and done, I will make sure that you appeal this case.’” Id. 

Doe understood that to mean “that the decision of [the Title IX] 

case had already been predetermined before [he] even had a single 

question asked of [him].” Id. 

Rollins selected Deena Wallace as the outside independent 

investigator. Ms. Wallace, an attorney, had previously served as a 

sex-crimes prosecutor at the state attorney’s office. See D.E. 228 at 

88–89. 

Ms. Wallace interviewed Roe and 22 other witnesses (including 20 currently-enrolled Rollins students) as part of her investigation. She interviewed Doe on December 7, 2017. During the 

interview, Doe had a lawyer hired by his mother present as his 

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advisor. Doe also provided two written statements to Rollins. Following the interviews, Ms. Wallace prepared a 71-page report setting out what each of the witnesses had said. See D.E. 56-5 & D.E. 

56-6. 

In the report, Ms. Wallace summarized each witness’ testimony, considered additional evidence (e.g., text messages), made 

credibility determinations, explained those determinations, and applied Rollins’ sexual misconduct policy to the evidence. Using a 

preponderance of the evidence standard, she found that Roe’s account was more credible than Doe’s, and concluded that Doe had 

violated Rollins’ sexual misconduct policy by digitally penetrating 

Roe without her consent. 

Ms. Jiménez Guevara reviewed the report, made some stylistic edits, and concluded that Ms. Wallace’s “process, and what 

she wrote in the report, was permissible” and “followed guidelines.” D.E. 56-2 at 183–84. Doe then submitted an appeal to Rollins. Mamta Accapadi, Rollins’ Vice-President for Student Affairs, 

reviewed the appeal and determined that Rollins had “followed 

[its] process.” D.E. 61-9 at 15. Because the investigation was completed after Doe had already earned his undergraduate degree, it 

did not impact that degree. See D.E. 61-9 at 17.2 

2 As noted, Doe was not permitted to participate in commencement/graduation exercises. Following the appeal, Dr. Accapadi modified the sanctions to 

make clear that they were not impacting Doe’s undergraduate degree and the 

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II 

We begin with Doe’s challenge to the district court’s order 

limiting the testimony of his expert, Professor Robert K.C. Johnson, to the history of Title IX and excluding his opinions on “the 

gender bias and fairness of Rollins[’] procedures.” D.E. 109 at 7. 

This is our starting point because the summary judgment record 

on the Title IX claims changes if the district court erred in excluding 

Professor Johnson’s opinions. 

A

We review the exclusion of Professor Johnson’s expert opinions for abuse of discretion. See General Elec. Co. v. Joiner, 522 

U.S. 136, 143 (1997). The abuse of discretion standard allows for a 

range of choice, and that means that sometimes we will affirm even 

though we might have decided the matter differently in the first 

instance. See Gall v. United States, 552 U.S. 38, 51 (2007); United 

States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). Inherent in this “deferential standard is a certain ‘play in the joints’ 

that permits divergent results on the same evidence, depending on 

the [court’s] explanation for the exercise of discretion.” Thomas 

D. Schroeder, Toward a More Apparent Approach to Considering 

the Admission of Expert Testimony, 95 Notre Dame L. Rev. 2039, 

2043 (2020). 

dismissal from Rollins “was in effect post the earning of his degree.” D.E. 61-

9 at 17. 

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The admissibility of expert testimony is governed by Federal 

Rule of Evidence 702, which has three basic requirements: the expert must be qualified; his methodology must be reliable; and his 

testimony must be helpful to the trier of fact. See Sorrels v. NCL 

(Bahamas) Ltd., 796 F.3d 1275, 1281 (11th Cir. 2015). The proponent of the expert testimony bears the burden of establishing each 

requirement by a preponderance of the evidence under Rule 

104(a). See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 

579, 592 & n.10 (1993); Frazier, 387 F.3d at 1261. 

These Rule 702 requirements are necessarily set out in general terms. As we have observed, the rules relating to expert testimony “are not precisely calibrated and must be applied in case-specific evidentiary circumstances that often defy generalization.” 

United States v. Alabama Power Co., 730 F.3d 1278, 1285 (11th Cir. 

2013) (internal quotation marks and citation omitted). 

B 

Professor Johnson holds a bachelor’s degree from Harvard, 

a master’s degree from Chicago, and a Ph.D. from Harvard. All 

three degrees are in history, and he teaches that subject at Brooklyn 

College and the City University of New York Graduate Center. See 

D.E. 58-6 at 2; D.E. 109 at 6. He is, “first and foremost, a professor 

of history.” D.E. 228 at 65. He does not have any experience or 

education in higher education administration, human resources, 

student affairs, gender studies, psychology, sociology, behavioral 

science, neurological science, statistical analysis, mental health 

counseling, forensic psychology, or psychiatry. See id. at 61–62. 

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In his initial expert report, Professor Johnson explained that 

his experience regarding Title IX “began in 2006-2007, when [he] 

wrote a daily blog on the Duke lacrosse case.” D.E. 63-1 at 2. He 

co-authored a book about that case, and “served as a consultant to 

ABC’s Law & Justice Unit for the final five months of the case.” Id. 

A decade later, he co-authored another book which “examin[ed] 

due process and fairness in Title IX adjudications.” Id. He has been 

invited to speak on this topic—at the State Risk and Insurance Management Association annual conference and before college and university audiences—and has also written on the topic. His writing 

includes a law review article which, at the time of his expert report, 

was forthcoming, two reported articles, two legal commentaries, 

and op-eds in certain publications. 

The district court allowed Professor Johnson to testify about 

the history of Title IX. But it excluded three of his opinions because 

Doe “failed to show Professor Johnson [wa]s qualified to reach [his] 

conclusions on fairness or gender bias by comparing past lawsuits 

against” the facts in this Title IX case. See D.E. 109 at 6–9. The first 

excluded opinion was that Rollins failed to provide Doe with a fair 

process. The second was that gender bias was a motivating factor 

behind Rollins’ erroneous findings. And the third was that Rollins 

acted in a manner that favored female reporting parties and disadvantaged male responding parties. See Br. for Appellant at 55.3

3Doe addresses the excluded opinions together in his brief, and we follow suit 

here.

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As the district court saw things, the “critical question” with 

respect to admissibility was “fit[:] Does Professor Johnson’s education or experience fit the subjects in his expert report?” D.E. 109 at 

7. The district court concluded that Professor Johnson could not 

opine that the “way Rollins treated Doe was unfair and gender-biased” by “comparing past lawsuits [against other academic institutions] against the[ ] facts” in this case. Id. “Without training or 

experience in these areas,” he was “not qualified to testify about 

them.” Id. 

C 

The “principles set out in Daubert apply to soft-science expert testimony” of the kind offered by Professor Johnson; “[s]ocial 

science testimony, like other expert testimony . . . , must be tested 

to be sure that the person possesses genuine expertise in a field and 

that her court testimony adheres to the same standards of intellectual rigor that are demanded in her professional work.” Carrizosa 

v. Chiquita Brands Int’l, Inc., 47 F.4th 1278, 1317 (11th Cir. 2022) 

(internal quotation marks and citation omitted).

Professor Johnson sought to opine on Rollins’ discriminatory conduct and behavior (i.e., its purported Title IX gender bias). 

Generally speaking, federal courts do not allow experts to testify 

about such motives or biases in discrimination cases unless there is 

some rational connection between the methodology and the opinion—something that explains how the application of the methodology permits the conclusion(s) reached. See, e.g., Chadwick v. 

WellPoint, Inc., 561 F.3d 38, 48 (1st Cir. 2009) (affirming the 

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exclusion of the plaintiff’s expert testimony on sex stereotyping in 

a gender discrimination case in part because of a “mismatch between the expert’s knowledge and qualifications and her ability to 

helpfully opine on the specifics of th[e] case”). 

Consider Downing v. Abbott Laboratories, 48 F.4th 793 (7th 

Cir. 2022), an employment discrimination case. The plaintiff in 

that case sought to use an expert, who was a “legal academic with 

a background in social psychology,” to opine that the employer’s 

conduct was “consistent with how stereotyping and biases (either 

implicit or explicit) manifest and affect people in employment settings.” Id. at 802. The Seventh Circuit upheld the district court’s 

decision to exclude the expert’s testimony on various grounds, including lack of reliability. It explained that the expert had reviewed 

“literature concerning stereotyping and discrimination” and then, 

without discussing her methodology, pivoted to her opinion that 

the employer’s conduct was “consistent with the possibility of stereotyping or bias.” Id. at 809. The district court properly exercised 

its discretion with respect to reliability because the expert had not 

“‘bridge[d] the analytical gap’ by showing a ‘rational connection’ 

between the data and the . . . contested conclusion.” Id. 

The circumstances here are similar. Professor Johnson 

based his unfair process and gender bias opinions on a review of 

hundreds of Title IX lawsuits against colleges and universities 

brought by persons who had been accused of sexual misconduct. 

See D.E. 228 at 12–14, 67. But he never explained why that comparative review allowed him to reach his gender-bias opinions. 

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There were also other problems. We highlight some of 

them below. 

First, in conducting his review of post-2011 Title IX cases by 

accused students against colleges and universities, Professor Johnson assumed that complaints that survived the motion-to-dismiss 

stage were indicative of gender discrimination. See, e.g., D.E. 58-6 

at 17–18, 24. But, as he later acknowledged, the courts in those 

cases had merely ruled that the factual allegations pled in the complaints, accepted as true, had made out plausible claims of gender 

bias. See D.E. 228 at 72–73. 

Second, Professor Johnson determined that Rollins’ singleinvestigator model was not the “best practice” or the optimum 

method for getting at the truth, and that schools were moving 

away from such a model. See id. at 26–27, 29, 84–86. Yet disagreement with the single-investigator model, no matter how sincere or 

well-grounded, says nothing about why the use of that model suggests gender bias on the part of Rollins in conducting Title IX investigations generally or in conducting the investigation of Roe’s 

allegations specifically. 

Third, Professor Johnson pointed to sex stereotypes in some 

of Rollins’ Title IX training materials. See id. at 22–23. But he 

acknowledged that the training materials he criticized were prepared for students and not for investigators like Ms. Wallace. 

Moreover, he conceded that Ms. Wallace had not been shown any 

of the stereotyped training materials and disavowed any suggestion

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that gender stereotyping by Ms. Jiménez Guevara should be attributed to Ms. Wallace. See id. at 75–80, 88, 98–99. 

Fourth, Professor Johnson relied on Rollins’ failure to investigate two possible cases of sexual misconduct by females when 

both the females and males were intoxicated. See id. at 34–36. In 

these two cases, however, the males did not file Title IX complaints. See id. at 36–37. 

Doe argues that Professor Johnson’s “academic research 

makes him fully qualified to comment on gender bias in Title IX 

matters” because a “witness’ expertise generally allows the witness 

to offer an expert opinion reasonably within the confines of that 

expertise.” Br. for Appellant at 56–57. Even where experience is 

the basis for an expert’s qualification, however, there can sometimes be “too great an analytical gap between the data and the 

opinion proffered.” Joiner, 522 U.S. at 146. “If an expert is relying 

solely or primarily on experience, then [he] must explain how that 

experience leads to the conclusion reached, why that experience is 

a sufficient basis for the opinion, and how that experience is reliably 

applied to the facts.” Carrizosa, 47 F.4th at 1322 (internal quotation 

marks omitted). 

It is not enough for Doe to point to Professor Johnson’s academic research and review of other Title IX cases—he “must put 

forth sufficient indicia of reliability and demonstrate that [Professor 

Johnson’s] expertise permits the opinion(s) rendered.” Id. Doe

does not explain in his brief how Professor Johnson’s expertise allowed him to opine that Rollins’ Title IX investigation was infected 

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with gender bias. And that is fatal under abuse of discretion review. 

See id. (affirming exclusion of an expert who “didn’t explain how 

his experience or sources led to or supported the conclusion he 

reached”); Hughes v. Kia Motors Corp., 766 F.3d 1317, 1331 (11th 

Cir. 2014) (holding that the district court did not abuse its discretion 

in concluding that “the leap from data to opinion was too great, 

and therefore exclud[ing] [the] testimony”). 

According to Doe, “because [Professor Johnson] maintain[ed] a database of litigation documents involving Title IX, he 

has on record this enormous array of material of how other colleges and universities handled these matters and could compare 

Rollins to how other institutions had done so.” Reply Br. for Appellant at 46 (internal quotation marks omitted). We still cannot 

discern any abuse of discretion. Though this collection of data may 

demonstrate how Professor Johnson could opine on how Rollins’ 

handling of Title IX matters differed from that of other colleges and 

universities—and maybe why the single-investigator model was 

not the optimal system under current industry practices—Doe 

does not explain how the data provided a basis for concluding that 

Rollins had a Title IX process that was based on or infected with 

gender bias. Indeed, when asked about how his “education, training, and experience as a historian assist[ed] [him] in drawing conclusions from [his] database,” Professor Johnson answered only 

that “[t]his is the kind of research that [he’d] always done, which is 

[to] study primary sources and especially primary sources that help 

to illustrate how institutions make procedural decisions behind the 

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scenes.” D.E. 228 at 97. An expert testifying on the basis of his

experience cannot support an opinion merely by saying that he 

reached it after doing what he has always done. He must also explain why the method he has long employed permits or supports 

the opinion at issue. 

III 

 Our review of the district court’s grant of summary judgment on Doe’s Title IX claims is plenary. See Marbury v. Warden, 

936 F.3d 1227, 1232 (11th Cir. 2019). Summary judgment is warranted “when the evidence, viewed in the light most favorable to 

the nonmoving party, presents no genuine issue of material fact 

and compels judgment as a matter of law in favor of the moving 

party.” Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1307 (11th 

Cir. 2013) (citation omitted). 

A 

Under Title IX, “[n]o 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.” 20 

U.S.C. § 1681(a). “Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.” Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). 

Last year, in a case arising at the Rule 12(b)(6) stage, we addressed the “framework for analyzing Title IX challenges to university disciplinary proceedings.” Doe v. Samford Univ., 29 F.4th 675, 

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686 (11th Cir. 2022). We examined the tests set forth by the Second 

Circuit in Yusuf, 35 F.3d at 715—the “erroneous outcome” test and 

the “selective enforcement” test—as well as “a test first developed 

by the Seventh Circuit: ‘do the alleged facts, if true, raise a plausible 

inference that the university discriminated against [the plaintiff] ‘on 

the basis of sex’?’” Samford Univ., 29 F.4th at 686 (quoting Doe v. 

Purdue Univ., 928 F.3d 652, 667–68 (7th Cir. 2019)). 

Under the “erroneous outcome” test, “a student must show 

both that he was ‘innocent and wrongly found to have committed 

an offense’ and that there is ‘a causal connection between the 

flawed outcome and gender bias.’” Doe v. Valencia Coll., 903 F.3d 

1220, 1236 (11th Cir. 2018) (quoting Yusuf, 35 F.3d at 715). And 

under the “selective enforcement” test, “a student must allege and 

ultimately prove ‘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 [sex].’” Samford Univ., 29 

F.4th at 686 (quoting Yusuf, 35 F.3d at 715). We explained in Samford University that these two tests “do not capture the full range 

of conduct that could lead to liability under Title IX,” but instead 

“simply describe [two] ways in which a plaintiff might show that 

sex was a motivating factor in a university’s decision.” Id. at 687 

(internal quotation marks omitted). 

Because “[t]he Seventh Circuit’s test hew[ed] more closely 

to ‘the text of the statute and binding precedent’ than . . . Yusuf,” 

we agreed with that approach in Samford University, albeit with 

one modification. See id. at 686. Namely, rather than asking 

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whether the facts alleged by the plaintiff raise a plausible inference, 

we determined that the inquiry ought to be whether the facts, if 

true, permit a reasonable inference of a Title IX violation. See id. 

at 687. 

Although the procedural posture of the appeal in Samford 

University was different—that case involved the dismissal of a complaint at the pleading stage—the analysis on the appropriate framework still holds. See, e.g., Doe v. Univ. of Denver, 1 F.4th 822, 830 

(10th Cir. 2021) (reframing the Seventh Circuit’s test for summary 

judgment review). Here we simply modify the inquiry to fit review 

of a grant of summary judgment: could a jury presented with the 

record evidence, viewed in Doe’s favor, reasonably find that Rollins discriminated against Doe on the basis of sex? See id. (“[W]e 

reframe the operative question for summary judgment and ask: 

Could a reasonable jury—presented with the facts alleged—find 

that sex was a motivating factor in the University’s disciplinary decision?”). 

B 

To state a Title IX claim for selective enforcement, a plaintiff 

“must plausibly allege ‘an inconsistency’ between his treatment by 

the university and the university’s treatment of a similarly-situated 

member of the other sex.” Samford Univ., 29 F.4th at 693. Applied 

at the summary judgment stage, this standard requires a plaintiff to 

present sufficient evidence for a jury to find that the institution’s 

treatment of similarly-situated male and female students was inconsistent. See Univ. of Denver, 1 F.4th at 830. 

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Doe argues that Rollins engaged in selective enforcement by 

treating Roe more favorably based on sex. Doe contends that even 

though he and Roe were similarly situated in terms of their conduct, Rollins treated Roe more favorably by “fail[ing] to initiate a 

disciplinary process” to determine whether she violated Rollins’ 

sexual misconduct policy. See Br. for Appellant at 31. According 

to Doe, his conduct was “nearly identical” to Roe’s because “(i) 

they both engaged in the exact same sexual conduct; (ii) they both 

admitted to drinking; and (iii) they both claimed the other initiated 

sexual activity.” Id. at 32. 

The district court concluded that these similarities were not 

enough because Doe, unlike Roe, did not allege any misconduct

and did not file a complaint. It explained that “[c]omparing . . . Roe 

and Doe does not eliminate a non-discriminatory reason for Rollins[’] decision not to investigate . . . Roe – Doe’s failure to allege 

misconduct.” D.E. 156 at 24. As explained below, we agree with 

the district court’s conclusion that Doe was not similarly situated 

to Roe, and as a result “[n]othing about the different[ial] treatment 

of [Doe and Roe] suggests [that sex] had anything to do with it.” 

Anthony v. Georgia, 69 F.4th 796, 808 (11th Cir. 2023) (Hinkle, J., 

concurring).

It is undisputed that Doe (unlike Roe) did not allege any misconduct. He acknowledged in his deposition that he did not make 

a complaint that Roe had sexually assaulted him. 

Although Doe does not claim that he lodged a complaint, he

asserts that Roe never initiated a complaint either. This is simply 

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incorrect. Roe did not initially “request an investigation,” but days 

after the incidentshe went to Rollins’ Title IX office, “filed a report” 

with Rollins’ Title IX Coordinator, and sought “interim 

measures”—“academic accommodations and other support services.” D.E. 56-2 at 117, 123–24. See also D.E. 56-5 at 2–3 (Rollins 

College Report Part 1: “On February 22nd, 2017, [Roe] . . . appeared 

in person at the Office of Title IX and met with [the] Title IX Coordinator . . . to discuss an incident that she believed to be in violation 

of the Rollins Title IX Policy.”). Thus, unlike Doe, Roe reported 

what she believed to be a Title IX violation to Rollins’ Title IX Coordinator. 

Doe asserts that “[t]he obligation of Rollins to investigate 

turned on the school’s knowledge of potential misconduct, not on 

whether someone filed a formal complaint.” Br. for Appellant at 

33. According to Doe, Rollins “failed to initiate a disciplinary process with respect to Roe after receiving credible information that 

Roe may have violated the [s]exual [m]isconduct [p]olicy by initiating sexual activity with Doe while [he] was incapacitated due to 

alcohol.” Id. at 31. On this record, that contention fails.

Under Rollins’ policy, “incapacitation constitutes a circumstance where a person would not be able to consent.” D.E. 56-2 at 

58–60. See also D.E. 56-1 at 7–8 (“An individual who is physically 

incapacitated from alcohol or other drug consumption (voluntarily 

or involuntarily), or is unconscious, unaware or otherwise physically helpless is considered unable to given consent. For example, 

one who is asleep or passed out cannot give consent.”). Rollins’ 

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24 Opinion of the Court 21-11081

policy states that “incapacitation is a state beyond drunkenness or 

intoxication” and “indicators of incapacitation may include, but are 

not limited to, lack of control over physical movements, being unaware of circumstances or surroundings, or being unable to communicate for any reason.” D.E. 56-1 at 8. See also D.E. 56-2 at 60

(Deposition of Ms. Jiménez Guevara: “Q. Okay. If a person is intoxicated, are they able to provide affirmative consent, under the 

Rollins policy? A. According to our policy, the statement is, where 

alcohol is involved, incapacitation is a state beyond drunkenness or 

intoxication.”).4 

For Doe’s argument to succeed, the record must contain evidence sufficient for a jury to find that Rollins learned that Doe was 

incapacitated—and therefore unable to consent—but nonetheless 

chose not to investigate the matter or initiate disciplinary proceedings against Roe. The record does not contain such evidence. Although Roe said that she believed Doe was drunk at certain points 

during the evening, she thought he was not as intoxicated as she 

was, and she did not think that he was incapacitated. See D.E. 56-

5 at 8–9.

Ms. Wallace, the Title IX investigator, testified similarly: 

Q. Did you have any – after you received information 

that the respondent may have been drunk, did you 

4 We are not called upon to decide whether Rollins’ policy—which expressly 

distinguishes being “drunk” from being “incapacitated” for purposes of consent—correctly assesses one’s ability to provide consent. 

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have any concerns that he was incapacitated due to 

the use of alcohol? 

A. No. There w[ere] no allegations that – and even I 

believe reporter or responding party himself told me 

that he wasn’t incapacitated. I don’t want to misquote him, but I believe he told me he wasn’t even 

drunk at the time of the incident. 

Q. But the reporting party told you he was drunk, 

right? 

A. No. The reporting party told me that he was drunk 

earlier in the night during the – I believe like the sorority serenade event. 

D.E. 56-9 at 106. 

Critically, Doe never claimed that he was incapacitated. 

When asked whether she made “any efforts to determine whether 

[Doe] was able to consent to [ ] sexual activity,” Ms. Wallace answered that “[t]here was absolutely no mention of [Doe] being victimized by [Roe.]” Id. at 107–108. According to Ms. Wallace, Doe 

“never brought that up. Had he brought that up, had he said – had 

he told me [he] was in an – even if he didn’t allege incapacitation, 

even if he said intoxication, [she] would have inquired further as to 

his intoxicated state; however, that is not what he said at all.” Id. 

at 108. 

Indeed, Doe’s own statements belie any claim of incapacitation. Doe submitted two statements to Ms. Wallace in response to 

allegations made against him. See D.E. 61-2, Exh. C at 25–31. In 

the first statement, Doe did not say or suggest that he was 

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26 Opinion of the Court 21-11081

physically incapacitated from alcohol, or unconscious, or unaware,

or otherwise physically helpless. He did not even claim that he was 

intoxicated. Doe’s only reference to his alcohol consumption that 

evening was the following: “When we entered the bar, someone 

purchased me a beer (Corona), while Jane Roe did not consume 

any drinks there.” Id. at 26. Although Doe specifically “address[ed] 

the term incapacitation and it[s] definition” in [Rollins’ policy], he 

did not at any point state that he was incapacitated that evening. 

See id. at 28. When he submitted a second statement to Ms. Wallace with additional thoughts after he “processed all the information that [she] gave [him],” Doe again did not say anything to 

indicate or suggest that he was incapacitated in any way. See id. at 

30–31. 

The record, as we have noted, contains some evidence of 

Doe drinking alcohol on the night in question. But this was not 

enough to create a genuine issue of material fact as to whether Rollins discriminated against Doe on the basis of sex by failing to investigate Roe. Given that Doe did not file a complaint against Roe, 

and that Doe disclaimed any incapacity, no reasonable jury could 

find that Rollins’ failure to investigate Roe was based on sex. 

Doe’s reliance on Doe v. Amherst College, 238 F. Supp. 3d 

195 (D. Mass. 2017), falls short for this very reason. In Amherst 

College, the operative complaint alleged that the college learned 

that the alleged female victim “may have initiated sexual activity” 

with the male student subject to the disciplinary proceedings 

“while he was ‘blacked out,’ and thus incapable of consenting” but 

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“did not encourage him to file a complaint, consider the information, or otherwise investigate.” Id. at 223. Those allegations, 

the district court concluded, were “sufficient to survive a motion 

for judgment on the pleadings.” Id. Here, the record—viewed in 

the light most favorable to Doe—does not suggest or show that 

Rollins learned that Doe was incapacitated or otherwise unable to 

consent. As a result, a reasonable jury could not find that Rollins’ 

failure to investigate Roe was improperly based on her sex or Doe’s 

sex. 

C 

To state a Title IX erroneous outcome claim, a plaintiff must 

plausibly allege “both that he was innocent and wrongly found to 

have committed an offense and that there is a causal connection 

between the flawed outcome and [sex] bias.” Samford Univ., 29 F. 

4th at 686 (internal quotation marks omitted). At the summary 

judgment stage, a plaintiff must present sufficient evidence for a 

jury to make both of these findings. See Univ. of Denver, 1 F.4th 

at 830.

Doe denied that he engaged in sexual activity with Roe without her consent. We agree with the district court that his first-hand 

version of events, if believed, was sufficient to create an issue of 

fact on the first prong of the erroneous outcome standard. See 

United States v. Stein, 881 F.3d 853, 857–58 (11th Cir. 2018) (en 

banc). 

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28 Opinion of the Court 21-11081

That leaves the second prong—whether there is sufficient 

evidence for a jury to find a causal connection between the flawed 

outcome and gender bias. Doe claims that he “presented evidence 

of procedural deficiencies and patterns of enforcement which, 

when combined with evidence of external pressure from [the U.S. 

Department of Education, Office for Civil Rights,] was sufficient to 

show that Rollins employed outdated and discriminatory views of 

gender and sexuality.” Br. for Appellant at 37 (internal quotation

marks omitted). Like the district court, we conclude that this evidence—viewed collectively—is not sufficient for a jury to find 

there was gender bias in Rollins’ investigation and determination, 

such that Doe was disciplined on the basis of sex.

Before discussing the evidence Doe relies on, we briefly 

summarize the allegations presented, and found to be insufficient

to make out a claim of gender bias, in Samford University. Although Samford University arose in a Rule 12(b)(6) context, we 

mention the allegations there because, if they were deemed inadequate to survive a motion to dismiss, then the same allegations, 

when established by evidence at summary judgment, would likewise not be enough to get to a jury. 

The plaintiff in Samford University alleged that “procedural 

irregularities at the investigation and hearing stages, ‘public pressure[ ] to comply with Title IX,’ public statements by university 

officials, and ‘statistics revealing numerous allegations against male 

students’ raise[d] a reasonable inference of sex discrimination.” 29 

F.4th at 687. Specifically, the plaintiff’s allegations of procedural 

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irregularities included the following: “the decision of [t]he [university’s] appellate board . . . [to] reject[ ] all medical evidence showing 

the falsity of [Roe’s] claims”; “the university’s failure to redact the 

portions of the investigative report containing statements from 

witnesses who did not testify at the hearing, as the [university’s] 

Title IX policy requires”; the “complaint against [the plaintiff] was 

[the investigator’s] first Title IX investigation”; and “prior to leading the investigation . . . [the investigator] received little to no training” and “lacked the experience necessary to conduct a Title IX investigation on her own in accordance with the [p]olicy.” Id. at 688–

89 (internal quotation marks omitted). As for statistics revealing

numerous allegations against male students, the plaintiff in Samford University alleged that “there ha[d] been at least seven reported rapes and nine reported cases of fondling; and . . . all the 

accused students were . . . males.” Id. at 692 (internal quotation

marks omitted). The plaintiff further alleged that “the university 

promoted an ‘It’s On Us Initiative’ . . . tout[ing] [that] every 21 

hours there is a rape on an American college campus; and that the 

university was subjected to . . . pressure from federal regulators to 

comply with Title IX and appear tough on sexual assault.” Id. at 

691 (internal quotation marks omitted). According to the plaintiff,

“the university favor[ed] all complainants and disfavor[ed] all respondents in Title IX proceedings.” Id. at 689 (internal quotation

marks omitted). 

These and other allegations, accepted as true and viewed in 

the light most favorable to the plaintiff, fell short in Samford 

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30 Opinion of the Court 21-11081

University. They did not permit a reasonable inference that the 

university discriminated against the plaintiff on the basis of sex. See 

id. at 687–93. We therefore do not write on a clean slate in reviewing Doe’s Title IX erroneous outcome claim. 

Doe identifies four types of evidence which he says shows 

(or creates an issue of fact on) Rollins’ gender bias: (1) evidence of 

stereotyped views of gender; (2) evidence of procedural flawsin the 

investigation; (3) evidence of external pressure from the Department of Education; and (4) evidence on patterns of decision-making at Rollins. We assess this evidence collectively because “the 

whole is often greater than the sum of its parts.” District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (discussing the “totality 

of the circumstances” standard for assessing probable cause). Cf. 

Lewis v. City of Union City, 918 F.3d 1213, 1220 n.6 (11th Cir. 2019) 

(en banc) (explaining that a plaintiff may show discriminatory intent by presenting a “convincing mosaic” of circumstantial evidence that would allow a jury to infer intentional discrimination). 

But to understand what Doe’s evidence means collectively, we first 

discuss each component of the mosaic and its limitations. See Samford Univ., 29 F.4th at 687–92.

Stereotyped Views of Gender. Doe points to two emails 

sent by Rollins’ Title IX Coordinator in October and November of 

2015, as well as certain information set out in some of Rollins’ training materials. According to Doe, the email from October of 2015 

“misrepresented the definition of consent . . . indicating a femalecentric view where consent could not be implied by ‘a few too 

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many drinks or a short skirt,’” while the email from November of 

2015 “stat[ed] a common stereotype about males: ‘Men act in a hyper-masculine and sexually aggressive manner to gain approval 

from their male peers . . . .’” Br. for Appellant at 40. As for the 

training materials, Doe argues that they “reinforced the stereotype 

of men as predators.” Id. Doe cites documents that “included the 

false claim that ‘99% of people who rape are men.’” Id. (citing D.E. 

74-9).

The October 2015 email includes the “short skirt” comment, 

but the rest of its content is gender neutral with respect to the matter of consent: “To make a mutual, voluntary, informed decision 

between clear-minded, of age participants before ANY and EVERY 

sexual act. Consent can be withdrawn at ANY time and you are 

NOT ENTITLED.” D.E. 74-8 at 1. It also states, with bullet points,

that “[c]onsent is an enthusiastic, unequivocal, voluntary, verbal 

and passionate – YES!”; that “[c]onsent is not an interpretation”; 

that “[t]here are no grey areas”; that consent “is not unsure, or implied, after a few too many drinks or by a short skirt, it’s not 

drugged, it’s never a ‘maybe’ or an ‘okay’ and it sure isn’t coerced 

or convinced”; and that a “person cannot consent if they are asleep 

or incapacitated by alcohol, drugs, or any other cause!” See id. 

The November 2015 email states that “[m]en are an integral 

part of moving campus culture away from tolerance of sexual violence,” and that “[w]hile most men do not commit acts of violence, 

males perpetrate the majority of sexual assaults on women and 

other men.” D.E. 74-7 at 1. It also says that “[m]en act in a hyperUSCA11 Case: 21-11081 Document: 58-1 Date Filed: 08/14/2023 Page: 31 of 51
32 Opinion of the Court 21-11081

masculine and sexually aggressive manner to gain approval from 

their male peers, not to impress women, research suggests.” Id. at 

2.

One set of training materials from the Office of the Title IX 

Coordinator, which were used for student orientation, defines sexual assault as “[h]aving or attempting to have sexual intercourse or 

sexual contact with another individual without consent” and in a 

bullet point mentions “[t]hreat, force, coercion, incapacitation.” 

D.E. 74-12 at 14. The slide for “consent” states the following: “The 

decision to engage in sexual activity must be informed, knowing, 

and voluntary. It exists when all parties exchange mutually understandable affirmative words or behavior indicating their agreement 

to freely participate in mutual sexual activity.” Id. at 17. Additional 

slides about “consent” and “coercion” are gender-neutral. See, e.g., 

id. at 18 (explaining that a person who is “physically incapacitated” 

is “considered unable to give consent”). One of the “scenario” discussions employs a hypothetical in which a male student harasses 

a female student; another uses a hypothetical in which one male 

student engages in the sexual assault of another male student; and 

a third uses a hypothetical in which a male student touches the 

breast of a female student without her consent. See id. at 36–38. 5

5 Doe says in his brief that “all of the training scenarios included male perpetrators.” Br. for Appellant at 40. Yet review of the training slides in the record 

shows largely gender-neutral guidance. For example, one “Exercise” slide presented two questions: “What do individuals who identify as men do on a daily 

basis to prevent themselves from being raped or sexually assaulted?” and 

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Another set of training materials, this one from August of 

2014, is entitled “Peer Education Title IX Training.” See D.E. 74-9. 

It contains a number of slides on sexual assault statistics. One of 

the slides states that “1 in 5 college women will be sexually assaulted during their college years,” id. at 3 (citing “USDOJ, 2005” 

as the source), and another states that “99% of people who rape are 

men,” id at 7 (citing “Greenfeld, 1997” as the source).6 

Doe contends in his brief that the former statistic is “questionable” and that the latter is “false.” Br. for Appellant at 40. But 

he does not cite to any evidence in the record indicating the respective statistics are questionable or false, and it is not appropriate for 

us on our own to try to figure out if the figures are accurate or 

not—even assuming we could. If Doe asserts that Rollins used allegedly questionable or false statistics about sexual assaults to suggest or show gender bias on the part of Rollins, it is his responsibility to point us to a source which questions the validity of those statistics. 

“What do individuals who identify as women do on a daily basis to prevent 

themselves from being raped of [sic] sexually assaulted?” D.E. 74-11 at 2. Another slide from a different training presentation states that one of the four 

“Things to Know About Title IX” is that it “applies to all genders.” D.E. 74-12 

at 9. In a later slide, “Sexual Assault (Rape)” is defined as “[h]aving or attempting to have sexual intercourse of sexual contact with another individual without consent.” Id. at 15. 

6 Ms. Jiménez Guevara, who was not the Title IX Coordinator in 2014, testified 

she “never used” the 99% statistic and did not use the 2014 training presentation for any purpose. See D.E. 56-2 at 93. 

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Evidence of Procedural Flaws in the Investigation. Doe identifies a number of purported deficiencies in the investigation. 

These are Rollins’ failure to adhere to the 60-day timeline; Ms. Wallace’s alleged failure to consider evidence that could have negatively affected the credibility of Roe, such as her delay in pursuing 

an investigation or her receipt of academic and housing benefits; 

Ms. Wallace interviewing Doe only once but Roe multiple times; 

Ms. Wallace taking Roe’s account at face value; the belief of Doe 

and his advisor that Ms. Wallace supposedly made up her mind before his interview; Ms. Wallace’s reliance on the stereotype that 

men are constantly seeking sex and are responsible for obtaining 

consent, even when Doe indicated that Roe had initiated the sexual 

activity; and Ms. Wallace’s inquiry into Doe’s prior sexual history, 

but not Roe’s prior sexual history. See Br. for Appellant at 42–44. 

Most of these alleged flaws are not flaws at all or demonstrate little 

connection to gender bias. 

First, although Rollins exceeded its own 60-day deadline, 

“[a] deviation from a Title IX policy is not, in and of itself, a violation of Title IX.” Samford Univ., 29 F.4th at 688. Ms. Jiménez Guevara explained that she did not open up an investigation at the time 

of Roe’s initial report in February of 2017 because she “didn’t have 

enough information to supersede [Roe’s] wishes at that time.” 

D.E. 56-2 at 117. Choosing not to begin an investigation against 

Doe for dearth of information (and/or because of Roe’s decision 

not to proceed) is not evidence of sex discrimination. 

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As for the delay from November of 2017 to March of 2018, 

Ms. Wallace interviewed Roe, Doe, and 22 other witnesses, and 

then prepared a 71-page report. When asked why it took her so 

long to finish the report, Ms. Wallace explained that although her 

investigation concluded on December 12, 2017, she was admitted 

into the hospital on December 22 and “didn’t really come out until 

March 19”—and during that time Ms. Jiménez Guevara was reviewing her first draft. See D.E. 61-7 at 40. 

Second, Doe asserts that Ms. Wallace interviewed Roe four 

times—three in-person interviews and one phone call—but interviewed him only once. But Doe submitted two written statements 

in addition to his interview. So Ms. Wallace still heard from Doe 

several times, albeit in a different format. Moreover, Ms. Wallace 

testified that Doe “was interviewed at the end” and after she “interviewed [Doe] and re-interviewed [Roe], there were no outstanding questions in [her] mind that gave [her] any reason to re-interview him for any reason.” Id. at 34. Additionally, Ms. Wallace interviewed the witnesses Doe submitted and they did not provide 

any additional information or leave any outstanding questions in 

her mind “that would have called for him to be re-interviewed.” 

Id.7 

7 As to Doe being interviewed at the end, Ms. Wallace “believe[d] the date 

kept getting pushed back because [Doe] was trying to line up his counsel . . . 

and so it took him some time to do that” and “the process [was] moving from 

obviously interviewing everyone else in the meantime while [they were] waiting for his to come along.” D.E. 61-7 at 34.

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Third, Doe says that he and his advisor believed Ms. Wallace 

had made up her mind before the interview. Lay witnesses may 

sometimes testify, based on their own observations and perceptions, about the state of mind of another person, and we assume 

that the opinions of Doe and his advisor were admissible. See, e.g.,

John Hancock Mut. Life Ins. Co. v. Dutton, 585 F.2d 1289, 1293–94 

(5th Cir. 1978). Nevertheless, we note that any inference of bias by 

Ms. Wallace in favor of Roe may be a bias in favor of reporting/complaining parties, and not a bias in favor of females. See 

Samford Univ. 29 F.4th at 690 (“discrimination against respondents 

is not discrimination ‘on the basis of sex,’ . . . and does not permit 

a reasonable inference of an anti-male bias because both men and 

women can be respondents”) (internal quotation marks and citation omitted). See also Doe v. Stonehill Coll., Inc., 55 F.4th 302, 

334 (1st Cir. 2022) (“[D]eference to Roe, without more, does not 

show that her treatment -- or Doe’s -- is attributable to sex rather 

than to some other reason, such as Roe’s status as the complainant.”). As the district court put it, though the record “may demonstrate a victim-centered approach to the investigation of the alleged 

sexual misconduct, [ ] conspicuously absent is evidence of discriminatory bias motivated by gender.” D.E. 156 at 23. 

Fourth, it is true that Ms. Wallace inquired about Doe’s past 

sexual history but not about Roe’s past sexual history. In a vacuum, that might permit some inference of gender bias. But the 

evidence cannot be viewed in isolation, and here there was an 

anonymous allegation that Doe had sexually assaulted three other 

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female students. Given that allegation, and the lack of any similar 

allegation about Roe, the decision to inquire about Doe’s past sexual history is not suggestive of gender bias. 

Pressure from the Department of Education. Doe points to 

the Department of Education’s issuance of its 2011 “Dear Colleague” letter—which discussed, among other things, schools’ obligations to respond to sexual harassment and sexual violence, procedural requirements pertaining to such harassment and violence, 

and steps to prevent and correct its discriminatory effects on the 

complainant and others—and maintains that Rollins changed its 

Title IX policies in response to “pressure” from the Department. 

See Br. for Appellant at 44–45; Reply Br. for Appellant at 36–38. 

Doe also cites to the testimony of Ms. Jiménez Guevara, who said 

that “[p]art of [her] job was ensuring that [Rollins was] following 

the mandates of Title IX, as an institution” and that the “Dear Colleague letter and the government was very clear on what the consequences are for any institution that doesn’t follow the mandates 

of Title IX.” D.E. 56-2 at 114. 

In Samford University, we explained that the Department of 

Education’s 2011 “Dear Colleague Letter” was not indicative of 

gender bias on the part of the university because it was rescinded 

in September of 2017 and because new regulations, e.g., 34 C.F.R. 

§ 106.45, provided more procedural protections for those accused 

of sexual misconduct. See Samford Univ., 29 F.4th at 691–92. 

Here, Rollins began its investigation of Roe’s complaint in November of 2017, after the “Dear Colleague Letter” had been rescinded. 

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See also Doe v. Columbia Coll. Chi., 933 F.3d 849, 855–56 (7th Cir. 

2019) (cited with approval in Samford University, and holding that 

“generalized allegations” about “the ‘Dear Colleague’ Letter,” 

even when combined with allegations of procedural impropriety, 

did not permit a “plausibl[e] infer[ence] that [the] investigation or

adjudication was tainted by an anti-male bias”). 

Patterns of Decision-Making at Rollins. Doe maintains that 

that Rollins “never investigated a female for sexual misconduct 

while Doe was a student at the school despite the fact that the Rollins student body at that time was 60% female.” Br. for Appellant 

at 47. He also argues that Rollins’ investigations “show[ ] actions 

consistent with gender bias”—for example, “[m]any of the reports 

delved into the sexual history of the male respondents.” Id. at 48. 

Statistics are often illuminating, but they sometimes do not 

tell the whole story. Maybe that is why Benjamin Disraeli, the British statesman, once remarked that there are three kinds of lies: 

“lies, damned lies, and statistics.” The Yale Book of Quotations 208 

(Yale Univ. Press 2006). 

Doe’s statistical presentation is misleading. Of the 12 reported cases of alleged sexual misconduct at Rollins between 2011 

and 2018, none included complaints against a female student—11 

were female students complaining about male students, and the 

other was a male student complaining about a male student. Doe 

therefore has not cited any evidence of Rollins choosing not to investigate complaints against female students. See Samford Univ., 

29 F.4th at 692. 

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As the district court explained, “schools are not responsible 

for which students choose to report sexual misconduct.” D.E. 156 

at 22 (quoting Rossley v. Drake Univ., 342 F. Supp. 3d 904, 929 

(S.D. Iowa 2018), aff’d, 979 F.3d 1184 (8th Cir. 2020)). In any event,

the fact that 5 of the 12 accused male students were ultimately 

found to not have engaged in sexual misconduct, see D.E. 74-1,

demonstrates that Rollins’ investigations didn’t invariably yield 

anti-male results. And that, in turn, weighs against a finding of antimale bias. As for looking into the sexual history of the male students accused of sexual misconduct, in Doe’s case the inquiry was 

due to the fact that an anonymous caller reported that Doe had 

assaulted three female students.

The Evidence Viewed Collectively. As noted, Doe’s evidence of procedural deficiencies and patterns of enforcement must 

be viewed collectively. But even when taken as a whole, and 

viewed in Doe’s favor, the evidence does not create a jury issue as 

to whether there was a causal connection between the purported 

erroneous outcome in Doe’s case and gender bias on the part of

Rollins. See Yusuf, 35 F.3d at 715 (explaining that the record must 

contain enough evidence to create a genuine issue of fact as to 

whether “gender bias was a motivating factor behind the erroneous finding” in the plaintiff’s case). First, although some of the 2015

emails and the various training materials Doe highlighted do contain some problematic language—for example, as Doe notes, the 

hypothetical example scenarios included only male perpetrators—

they were geared toward student orientation and training and

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40 Opinion of the Court 21-11081

some were years removed from Doe’s investigation. And, as Professor Johnson acknowledged, Ms. Wallace—the Title IX investigator in Doe’s case—did not see any of those materials and there was 

no claim that any gender stereotyping on the part of Ms. Jiménez 

Guevara was imputed to Ms. Wallace. Second, the alleged procedural deficiencies are either not flaws at all or matters that have a 

gender-neutral explanation. Cf. Samford Univ., 29 F.4th at 688 

(“Doe’s ‘bare assertion’ that the procedural irregularities are attributable to his sex does not make his speculation plausible.”). 

Third, the pressure from the Department of Education had dissipated by the time of Doe’s investigation, as the 2011 “Dear Colleague” letter was rescinded in September of 2017. See Univ. of 

Denver, 952 F.3d at 1192–1193 (explaining that the “Dear Colleague” letter is gender-neutral on its face and evidence of the pressure the university felt to comply with its guidance “cannot support 

[the student’s] summary judgment burden unless combined with a 

particularized ‘something more’”) (internal quotation marks omitted). Fourth, on this record there are no discernable patterns of 

gender-biased decision-making. 

The cases Doe relies on exemplify the shortcomings of this 

record. For example, in Doe v. Marymount University, 297 F. 

Supp. 3d 573, 586 (E.D. Va 2018), the district court had before it 

allegations specifically regarding the adjudicator of the sexual misconduct proceedings—the person “ultimately responsible for determining [the student’s] guilt or innocence.” Because the district 

court was considering a motion to dismiss, it accepted as true the 

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allegations, which “reveal[ed] that [the adjudicator’s] decisionmaking was infected with impermissible gender bias.” Id. 

Here, the record is markedly different. Doe has not pointed 

to any evidence showing that Ms. Wallace, the Title IX investigator 

in his case, had or acted on gender bias. Ms. Wallace was selected 

as a Title IX investigator for Rollins around April of 2017 and the 

first training she attended was on May 31, 2017. See D.E. 61-7 at 

6–7. Doe does not argue that Ms. Wallace attended any of the 

problematic training sessions he cites to, and it is unclear from the 

record whether they even took place while Ms. Wallace was serving as an investigator—some of the presentations appear undated, 

but at least one appears to be from August 14, 2014, which was 

years before Ms. Wallace was even selected by Rollins. For the 

same reason, Ms. Wallace could not have received the October and 

November 2015 emails Doe references. 

We are likewise unpersuaded by Doe’s reliance on Doe v. 

Purdue University, 928 F.3d 652 (7th Cir. 2019). The allegations in 

Purdue University—which, again, had to be accepted as true at the 

Rule 12(b)(6) stage of that case—included that the university center 

posted an article during the same month the male student was disciplined titled “Alcohol isn’t the cause of campus sexual assault. 

Men are.” Id. at 669. Moreover, the university chose to credit the 

female student’s account without actually “hearing directly from 

her.” Id. The record here does not contain such facts.

Finally, we have considered Doe v. William Marsh Rice University, 67 F.4th 702, 714 (5th Cir. 2023) (2-1 decision reversing 

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grant of summary judgment in favor of university on Title IX 

claims by male student who was found to have engaged in sexual 

misconduct), which Doe has submitted as supplemental authority. 

Title IX cases are inherently fact-specific, see Samford Univ., 29 F. 

4th at 701 (Jordan, J., concurring), and though Rice University involved the same summary judgment posture as this case, the underlying accusation and the handling of the Title IX investigation 

are markedly different. 

In Rice University, a student—we’ll call her Student A—alleged that “she became infected with herpes after a consensual sexual encounter with another student who knew he had herpes” but 

failed to sufficiently inform her of that during their relationship. 

See 67 F.4th at 705. After Student A submitted a written complaint 

to Rice University, the other student—we’ll call him Student B—

was placed on an interim suspension. See id. at 706. The investigation against Student B was to determine whether he violated 

Rice University’s prohibition from “intentionally inflicting or attempting to inflict mental or bodily harm on any person” and “taking reckless disregard, from which mental or bodily harm could result to any person” and “whether his conduct may qualify as dating 

violence under the [u]niversity’s [s]exual [m]isconduct [p]olicy.” 

Id. (internal quotation marks omitted). 

Roe and Student A are alike in that each submitted a complaint to their university alleging sexual misconduct, and Doe and 

Student B are alike in that each filed lawsuits against their university alleging gender bias. But that’s really where the relevant

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similarities end. First, in Rice University, the issue was not inability 

to provide consent due to alleged incapacitation. Instead, Student

A accused Student B of “failing to inform her of his herpes diagnosis, and this was the charge [Student B] defended against. Rice ultimately found that [Student B] had informed [Student A] of his 

herpes diagnosis but sanctioned him anyway for failing to go further by informing [Student A] of the risks of having sex with a herpes carrier, despite the fact that no such rule appears in Rice’s student code.” Id. at 708. Second, Student B’s lawyer—unlike Doe’s 

lawyer during Rollins’ investigation—“was not allowed to participate in the process or view any documents in the disciplinary file 

in order to counsel” Student B. See id. Third, Student B—unlike 

Doe—“was kicked off campus on 24 hours’ notice because of the 

risk that he might have sex with other students and infect them 

with herpes.” Id. Fourth, Student B “was ultimately sanctioned 

with what amounted to expulsion for failing to inform a sex partner 

of the potential consequences of having sex with a herpes carrier. 

Yet when [Student B] offered the [u]niversity evidence that [Student A] was doing precisely the same thing, and [Student A] expressly informed the [u]niversity of her intent not to tell future sex 

partners of her herpes diagnosis, the [u]niversity did nothing.” Id. 

As discussed, Doe did not complain to Rollins during the investigation that he was incapacitated and unable to consent, or that Roe 

may have engaged in sexual misconduct, or that she was otherwise 

engaging in sexual misconduct with other students. In contrast, in 

Rice University, Student B alleged Student A “was guilty of the 

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44 Opinion of the Court 21-11081

same conduct of which he was charged: failure to disclose the risk 

of STD transmission.” Id. at 712. 

Based on these facts, a divided panel of the Fifth Circuit concluded that the district court did not view the record in the light 

most favorable to Student B, and that material fact issues remained 

as to whether the university’s proceedings were motivated by gender bias. Rice University does not establish that the district court 

here erred; it shows how a different record can lead to a different 

result.8

IV 

 Doe argues that he was entitled to summary judgment on 

the liability aspect of his breach of contract claim. To recap, the 

district court partially granted Doe’s motion for summary judgment, concluding that Rollins breached the 60-day provision of its 

Title IX sexual misconduct policy. That provision typically required the process for sexual misconduct and harassment reports 

to be completed within 60 days. Doe challenges the district court’s 

8 The dissent in Rice University maintained that Student B’s “experience with 

the [u]niversity’s disciplinary process reveal[ed] no evidence of gender discrimination.” 67 F.4th at 714 (Graves, Jr., J., dissenting). Specifically, the dissent believed that the selective enforcement claim failed because there was 

“no evidence that similarly situated women were either not investigated or 

punished in the same way as” Student B, and the erroneous outcome claim 

failed because Student B “produced no evidence that the [u]niversity’s decision 

was wrong or that it was based on gender bias.” Id. at 718–721 (Graves, Jr., J., 

dissenting). Given how different the facts in Rice University were, we need 

not decide whether the majority or the dissent got it right. 

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ruling that a genuine dispute of fact existed on whether Rollins’ 

breach of the 60-day provision was material—an issue that proceeded to trial and was resolved by the jury in Rollins’ favor. 

There was “a full trial and judgment on the merits” of the 

materiality issue. As a result, Doe’s challenge to the district court’s 

denial of summary judgment is not properly before us. See Lind v. 

United Parcel Serv., Inc., 254 F.3d 1281, 1286 (11th Cir. 2001) (“We 

. . . hold that this Court will not review the pretrial denial of a motion for summary judgment after a full trial and judgment on the 

merits.); Am. Builders Ins. Co. v. S.-Owners Ins. Co., 56 F.4th 938 

(11th Cir. 2023) (“[W]e have repeatedly and broadly held that ‘this 

Court will not review the pretrial denial of a motion for summary 

judgment after a full trial and judgment on the merits.’”) (quoting 

Lind, 254 F.3d at 1286)); Carrizosa, 47 F.4th at 1339 (“In our circuit

. . . ‘a party may not appeal an order denying summary judgment 

after there has been a full trial on the merits.’”) (citation omitted). 

The Supreme Courtrecently held in Dupree v. Younger, 143 

S. Ct. 1382, 1389 (2023), that a “post-trial motion under Rule 50 is 

not required to preserve for appellate review a purely legal issue 

resolved at summary judgment.” As a panel of our court just explained, under Dupree “arguments denied at summary judgment 

are appealable after a trial on the merits if they raise ‘purely legal 

issues.’” Am. Builders Ins. Co. v. Southern-Owners Ins. Co., 71

F.4th 847, 859 (11th Cir. 2023).

Dupree does not apply here. The reason is that under Florida law—which governs Doe’s breach of contract claim—

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materiality is an issue of fact and not a pure question of law. See 

Covelli Fam., L.P. v. ABG5, L.L.C., 977 So. 2d 749, 752 (Fla. 4th 

DCA 2008) (“The issue of whether an alleged breach is vital or material is reviewed as a question of fact.”). Accord 23 Williston on 

Contracts § 63:3 (4th ed & May 2023 update) (“The determination 

whether a material breach has occurred is generally a question of 

fact, dependent on the circumstances of the case.”) (footnotes omitted). We therefore cannot review the district court’s denial of summary judgment on liability for Doe’s breach of contract claim. See 

Am. Builders Ins. Co., 71 F.4th at 859–61.

V 

 Doe also challenges the district court’s denial of his Rule 50 

motions for judgment as a matter of law on the issue of materiality. 

Our review is plenary, and we view the evidence in the light most 

favorable to Rollins, which prevailed at trial. See Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997). 

During trial, Doe moved for partial judgment as a matter of 

law under Rule 50(a), arguing that Rollins’ breach of the 60-day 

provision was material. Specifically, Doe asserted that he and his 

advisor in the Title IX investigation both testified that his “ability 

to defend himself was impacted because of the delay in informing 

[him] of the allegations and initiating an investigation.” D.E. 191

at 3. Doe further claimed that “the ability to obtain physical evidence, such a[s] surveillance videos or electronic communications, 

was lost,” and that “memories fade over this period of time.” Id. 

According to Doe, Rollins did not present “any contrary evidence” 

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and “no reasonable jury would have a legally sufficient evidentiary 

basis to find for [Rollins] on the issue of materiality related to the 

60-day provision.” Id. 

The district court reserved ruling on Doe’s partial Rule 50(a) 

motion, and the jury returned a verdict in Rollins’ favor, finding 

that Rollins’ breach of the 60-day provision was not material. Following trial, the district court denied Doe’s partial motion for judgment as a matter of law. Doe renewed his motion under Rule 

50(b), and in the alternative requested a new trial pursuant to Rule 

59. 

In his renewed motion, Doe argued that the district court

had “misapplied the material breach rule” by focusing on whether 

the delay impacted Rollins’ investigator, rather than himself, the 

non-breaching party. See D.E. 210 at 4. The district court denied 

Doe’s Rule 50(b) motion, and noted that “[h]ow the delay affected 

the investigator goes directly to [Doe’s] injury – it was Ms. Wallace

[the investigator] who found [Doe] violated the policy.” D.E. 222 

at 4. The district court explained that “if Ms. Wallace testified that 

the delay negatively affected her investigation, it would be evidence that the breach of contract was not minor. Conversely, her 

lack of testimony that the delay affected her investigation relates to 

whether the breach was material.” Id. The district court concluded that, “[i]n the light most favorable to [Rollins] as the nonmoving party, there [was] sufficient evidence to support [the jury’s] 

verdict,” and “judgment as a matter of law [was] not appropriate.” 

Id. at 5. 

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We will reverse the district court’s denial of the Rule 50 motions only if “the facts and inferences point overwhelmingly in favor of [Doe], such that reasonable people could not arrive at a contrary verdict.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 

1275 (11th Cir. 2002) (internal quotation marks and citation omitted). Viewing the evidence in the light most favorable to Rollins, 

we hold that there was sufficient evidence for a jury to reasonably 

find that its breach of the 60-day provision was not material. 

Under Florida law, “[t]o constitute a vital or material breach, 

a defendant’s non-performance must be such as to go to the essence of the contract.” Marchisio v. Carrington Mortg. Servs., 

LLC, 919 F.3d 1288, 1313 (11th Cir. 2019) (internal quotation marks 

omitted). See also Burlington & Rockenbach, P.A. v. L. Offs. of E. 

Clay Parker, 160 So. 3d 955, 960 (Fla. 5th DCA 2015) (“To establish 

a material breach, the party alleged to have breached the contract 

must have failed to perform a duty that goes to the essence of the 

contract and is of such significance that it relieves the injured party 

from further performance of its contractual duties.”). “A party’s 

failure to perform some minor part of his contractual duty cannot 

be classified as a material or vital breach.” Covelli Fam., L.P., 977

So. 2d at 752 (internal quotation marks omitted). See also JF & LN, 

LLC v. Royal Oldsmobile-GMC Trucks Co., 292 So. 3d 500, 509 

(Fla. 2d DCA 2020) (“A trivial noncompliance or minor failure to 

perform is not a material breach.”). 

As the district court explained, “the jury had to determine 

whether [Rollins’] failure to comply with the [60]-day provision 

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(i.e., taking longer than [60] days to complete the process) was minor or trivial.” D.E. 222 at 4. The evidence introduced at trial 

shows that “reasonable and fair-minded persons exercising impartial judgment might reach different conclusions” on this issue. See 

Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1211 (11th Cir. 

2010).

Doe points to testimony from Eric Barker, the lawyer who 

served as his advisor during the Title IX proceedings, to support his 

claim that the breach was material. Mr. Barker testified that Doe 

was placed at a disadvantage, that witnesses “may forget over nine 

months all of the details or some of the important details,” and that 

surveillance videos may disappear. See Br. for Appellant at 59 (citing D.E. 230 at 215–16). Doe also relies on his own trial testimony,

where he “noted he would have taken ‘several different acts’ had 

he been informed of the investigation in a timely manner.” Id. (citing D.E. 234 at 33). Specifically, Doe testified that he “probably 

would have thoroughly looked through any text messages that [he] 

may have had over that nine-month period . . . and collect any posts 

from social media from the time that could have been relevant[.]” 

D.E. 234 at 33. He also stated that he “[c]ould have [gone] to any 

local businesses with security footage to help provide more context” and “could have written down a lot of [his] thoughts from 

that evening, from that current time period instead of letting this 

sit over the course of nine months and potentially allowing or risking the ability to recover a lot of that information.” Id. 

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This testimony, if credited by the jury, could have supported 

a finding in Doe’s favor on materiality. But the jury did not have 

to credit the evidence Doe presented, and in any event the evidence 

on materiality was not as one-sided as Doe suggests. 

For example, Rollins cites to testimony from Ms. Jiménez 

Guevara that “immediately following . . . Roe’s report in February 

[of] 2017, she attempted to obtain footage of Doe and . . . Roe on 

campus from the night in question, but no surveillance footage existed.” Br. for Appellee at 57–58 (citing D.E. 234 at 281–85). Ms. 

Jiménez Guevara explained that she “contacted Campus Safety to 

ask if there was any video footage of any of the areas where [Roe] 

described that she had been located walking with . . . Doe.” D.E. 

234 at 284. Ms. Jiménez Guevara also testified that she asked Roe 

“to provide [her] with any documentation, with a statement, with 

any text messages, or anything that she could provide [her] with at 

that point in time.” Id. at 283. 

There was also the investigation report, which was admitted 

into evidence. The report shows that, as part of her investigation, 

Ms. Wallace was able to review text messages from February of 

2017, including messages Roe sent to different persons—some as 

immediate as 3:29 a.m. and 3:31 a.m. the morning of the incident 

that was the subject of the Title IX investigation—as well as the 

text exchange between Roe and Doe on February 18, 2017, which 

Roe reported to be the last time she spoke with Doe. See D.E. 201, 

Exh. 16 at 10–11. And although Ms. Wallace acknowledged that 

the memories of witnesses could fade over time, she also said that 

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they don’t always do so: “Sometimes traumatic incidents are forever imprinted in a person’s mind.” D.E. 234 at 162–63. 

In sum, although Rollins breached the 60-day provision, 

“reasonable and fair-minded persons in the exercise of impartial 

judgment might reach different conclusions” on whether that 

breach was material. See Christopher v. Florida, 449 F.3d 1360, 

1364 (11th Cir. 2006). Cf. Universal Prop. & Cas. Ins. Co. v. Motie, 

335 So. 3d 205, 206-07 (Fla. 5th DCA 2022) (reversing directed verdict and holding that jury had to decide whether homeowner’s failure to report storm damage for 103 days was a material breach of 

the insurance contract). We therefore affirm the district court’s denial of Doe’s motions for judgment as a matter of law.9

VI 

The district court did not abuse its discretion in excluding 

the gender bias and unfair process opinions of Doe’s expert, and 

properly granted summary judgment in favor of Rollins on Doe’s 

Title IX claims for selective enforcement and erroneous outcome. 

On the breach of contract claim, the district court did not err in 

denying Doe’s Rule 50 motions because the evidence on the issue 

of materiality was disputed and the jury could have reasonably 

found that Rollins’ breach was not material.

AFFIRMED. 

9Given our conclusion on Doe’s breach of contract claim, we need not address 

Rollins’ cross-appeal.

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