### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17-3565
J OHN D OE , Plaintiff-Appellant

,

v.

P URDUE U NIVERSITY, et al.

, Defendants-Appellees

.

____________________ Appeal from the United States District Court for the

Northern District of In diana, Hammond Division. No. 2:17-cv-00033-PRC — Paul R. Cherry

, Magistrate Judge

.

____________________

A RGUED S EPTEMBER 18, 2018

— D ECIDED J UNE 28, 2019

____________________

Before S YKES , B ARRETT, and S T

. E VE , Circuit Judges

. B ARRETT, Circuit Judge . After fi nding John Doe guilty ofsexual violence against Jane Doe, Purdue University suspended him for an academic ye ar and imposed conditions onhis readmission. As a result of that decision, John was expelled from the Navy ROTC program, which terminated both his ROTC scholarship and plan to pursue a career in the Navy.2 No. 17-3565

John sued the university and several of its o ffi cials, asserting two basic claims. First, he argued that they had violated the Fourteenth Amendment by using constitutionally fl awedprocedures to determine his guilt or innocence. Second, he argued that Purdue had violated Title IX by imposing a punishment infected by sex bias. A magistrate judge dismissed John’s suit on the ground that he had failed to state a claim under either theory. We disagree. John has adequately alleged violations of both the Fourt eenth Amendment and Title IX.

I.We are reviewing the magistrate judge’s decision to dismiss John’s complaint for failing to state a claim. That means that we must recount the facts as he describes them, drawing every inference in his favor. See D.B. ex rel. Kurtis B. v. Kopp

, 725 F.3d 681, 682 (7th Cir. 2013). In other words, the story that follows is one-sided because the posture of the case requiresit to be. Our task is not to determine what allegations are supported by the evidence but to determine whether John is entitled to relief if everything that he says is true. See McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir. 2011). John and Jane were both students in Purdue’s Navy ROTC program. They began dating in the fall of 2015, and betweenOctober and December, they had consensual sexual intercourse fi fteen to twenty times. Jane’s behavior became increasingly erratic over the course of that semester, and shetold John that she felt hopeless, hated her life, and was contemplating running away. In December, Jane a tt empted suicide in front of John, and after that incident, they stopped having sex. They continued dating, however, until January, when John tried to get Jane help by reporting her suicide a tt empt to two resident assistants and an advisor. Jane was upset at JohnNo. 17-3565 3

for reporting her, and she distanced herself from him. Soon thereafter, she began dating someone else. For a few months, things we re quiet between John and Jane. That changed in April 2016, which was Sexual Assault Awareness Month. During that month, Purdue hosted over a dozen events to promote the reporting of sexual assaults.Many of the events were sponsored by the Center for Advocacy, Response, and Education (CARE), a university center dedicated to supporting victims of sexual violence. CARE promoted the events on its Facebook page, along with posts containing information about sexu al assault. One of its posts was an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are.” During the fi rst ten days of April, fi ve students reported sexual assault to the university. Jane was one of them. She alleged that in November 2015, she was sleeping with John in his room when she woke to him groping her over her clothes without her consent. According to Jane, she told John that this was not okay, and John then confessed that he had digitally penetrated her while the two we re sleeping in Jane’s roomearlier that month. Jane told the university that John had engaged in other misconduct as well: she asserted that he had gone through her underwear drawer without her permission, chased her through a hallway wh ile joking about tasering her, gone to her room unannounced after they broke up, and lost his temper in front of her.
John learned about Jane’s accusations in a le tt er from Katherine Sermersheim, Purdue’s Dean of Students and a Title IX coordinator. Sermershei m informed John that the university had elected to pursue Jane’s allegations even though Jane had not fi led a formal complaint. She outlined the4 No. 17-3565

school’s disciplinary procedures and explained that two employees who reported to her, Erin Oliver and Jacob Amberger, would investigate the case. She also instructed John not to have any contact with Jane. After he received the le tt er, Johnwas suspended from the Navy ROTC, banned from all buildings where Jane had classes, and barred from eating in his usual dining hall because Jane also used it.
John submi tt ed a wri tt en response denying all of Jane’s allegations. He asserted that he never had sexual contact with Jane while she was sleeping, through digital penetration or otherwise. He said that there was one night in December, after Jane’s suicide a tt empt, when he touched Jane’s knee while she was sleeping on a futonand he was on the fl oor next to her. But he denied groping her or en gaging in any of the harassing behavior of which she had accused him. John also recountedevidence that he thought inconsistent with Jane’s claim of sexual assault: she texted and talked to him over the holidays, sent his family a package of homemade Christmas cookies, and invited him to her room whenthey returned to school in January. He also provided details suggesting that Jane was troubled and emotionally unst able, which he thought might explain her false accusations.Under Purdue’s procedures, John was allowed the assistance of a “supporter” at any m eeting with investigators. Inlate April, John and his supporter met with Oliver and Amberger. As he had in his wri tt en response, John steadfastly denied Jane’s allegations. He provided the investigators with some of the friendly texts that he thought belied her story, aswell as a list of over thirty people who could speak to his integrity.No. 17-3565 5

When the investigators’ report was complete, Sermersheim sent it to a three-person panel of Purdue’s Advisory Commi tt ee on Equity, which was tasked with making a recommendation to her after revi ewing the report and hearing from the parties. Sermersheim called John to appear before the panel, but consistent withPurdue’s then-applicable procedures, she neither gave him a copy of the report nor shared its contents with him. Moments before his commi tt ee appearance, however, a Navy ROTC representative gave John a few minutes to review a redacted ve rsion of the report. To John’s distress, he learned that it fa lsely claimed that he had confessed to Jane’s allegations. The investigators’ summary of John’s testimony also failed to include John’s description of Jane’s suicide a tt empt. John and his supporter met with the Advisory Commi tt ee and Sermersheim, who chaired the meeting, for about thirtyminutes. Jane neither appeared before the panel nor submitted a wri tt en statement. Instead, Monica Soto Bloom, the director of CARE, wrote the Advisory Commi tt ee and Sermersheim a le tt er summarizing Jane’s accusations. The meeting did not go well for John. Two members of the panel candidly stated that they had not read the investigative report. The one who apparently had read it asked John accusatory questions that assumed his guilt. Because John had not seen the evidence, he could not address it. He reiterated his innocence and told the panel abou t some of the friendly texts that Jane had sent him after the alleged assaults. The panel refused John permission to pres ent witnesses, including character witnesses and a roommate who would state that he was present in the room at the time of the alleged assault and that Jane’s rendition of events was false.6 No. 17-3565

A week later, Sermersheim sent John a perfunctory le tt er informing him that she had fo und him guilty by a preponderance of the evidence of sexual violence. She suspended Johnfrom Purdue for one academic year. In addition, she conditioned John’s reentry on his co mpletion of a university-sponsored “bystander intervention training” and his agreement to meet with the Assistant Dire ctor of CARE during the fi rst semester of his return. John appealed this decision to Alysa Rollock, Purdue’s Vice President for Ethics and Compliance, who instructedSermersheim to identify the factual basis of her determination. Sermersheim sent a revised le tt er to John adding the following: Speci fi cally, a preponderance of the evidence supports that: 1. [Jane Doe] had fallen asleep on a futon with you on the fl oor beside her. She woke up and found that you inappr opriately touched her over her clothing and without her consent by placing your hand above her knee, between her legs, and moved it up to her “crotch” areas; and 2. On another occasion, while she was sleeping and without her consent, you inappropriately touched [Jane Doe] by digitally penetrating her vagina.

As the basis for these fi ndings, Sermersheim o ff ered: “I fi nd by a preponderance of the eviden ce that [John Doe] is not a credible witness. I fi nd by a preponderance of the evidence that [Jane Doe] is a credible witness.” John appealed to Rol-No. 17-3565 7

lock again, but this time, Ro llock upheld Sermersheim’s determination of guilt and acco mpanying sanctions. A few weeks after his second appeal was denied, John involuntarily resigned from the Navy ROTC, which has a “zero tolerance” policy for sexual harassment.
John sued Mitch Daniels, the President of Purdue University; Rollock, the Vice Presid ent for Ethics and Compliance; Sermersheim, the Dean and a Title IX coordinator; and Oliver and Amberger, the investigators, in their individual capacities, seeking monetary relief under 42 U.S.C. § 1983. 1 He sued these same defendants, along wi th the members of Purdue’s Board of Trustees, in their o ffi cial capacities, seeking injunctive relief under Ex Parte Young, 209 U.S. 123 (1908), to remedy the Fourteenth Amendment violation. And he sued Purdue University for discriminating against him on the basis of sex in violation of Title IX. The magistrate judge dismissed John’s § 1983 claims with prejudice, holding that the di sciplinary proceedings did not deprive John of either liberty or property, so the Due Process Clause did not apply. He o ff ered an additional reason for dismissing John’s § 1983 claim against Daniels: John’s theory of liability was based on Daniels’s role as supervisor, and there is no supervisory liability un der § 1983. As for John’s claims for injunctive relief, the magistrate judge dismissed them without prejudice for lack of standing because John had not alleged that the violations po sed any threat of future harm.

1 John’s complaint also asserted § 1983 claims against Purdue and all other defendants in their official capa cities. Before us, he concedes that § 1983 does not permit him either to assert official-capacity claims or to sue Purdue itself. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).8 No. 17-3565

And he dismissed John’s claims under Title IX with prejudice on the ground that John had not alleged facts su ffi cient to show that Purdue discriminate d against him on the basis of sex. John appeals each of these rulings.

II. We begin with procedural due process. According to John, he was punished pursuant to a process that failed to satisfythe minimum standards of fairness required by the Due Process Clause. He alleges the following de fi ciencies: he was not provided with the investigative report or any of the evidence on which the decisionmakers re lied in determining his guilt and punishment; Jane did not appear before the Advisory Commi tt ee; he had no opportunity to cross-examine Jane; Sermersheim found Jane cred ible even though neither Sermersheim nor the Advisory Commi tt ee talked to her in person; Jane did not write her own statement for the panel, much less a sworn one; Sermersheim was in charge of both the investigation and the adjudi cation of his case; the Advisory Commi tt ee was blatantly biased against him; and the Advisory Commi tt ee refused to allow him to present any evidence, including witnesses. Yet John cannot recover simply because the procedures were unfair, even if they were . The Due Process Clause is not a general fairness guarantee; its pr otection kicks in only when a state actor deprives someone of “life, liberty, or property.” U.S. C ONST . amend. XIV, § 1. The threshold question, then, is whether John lost a liberty or property interest when he was found guilty of sexual violence and punished. We address whether the procedures satis fi ed minimum constitutional requirements of fairness only if the answer to that question is
yes.No. 17-3565 9

A. Our precedent involving due pr ocess claims in the context of university discipline has focu sed on whether a student hasa protected property interest in his education at a state university. We have explained th at “[a] college education—any education—is not ‘property’ in the usual sense of the word.” Williams v. Wendler , 530 F.3d 584, 589 (7th Cir. 2008); see also Charleston v. Bd. of Trs. of Univ. of Ill. at Chi. , 741 F.3d 769, 772 (7th Cir. 2013) (“[O]ur circuit has rejected the proposition that an individual has a stand- alone property interest in an education at a state university, including a graduate education.”). 2 Instead, “we ask whether the student has shown that he has a legally protected entitlement to his continued education at the university.” Charleston , 741 F.3d at 773 (emphasis in original). High school students (and, for that ma tt er, elementary school students) have a property interest in their public education because state law entitles them to receive one. Goss v. Lopez
, 419 U.S. 565, 573–74 (1975). The same is not true, however, of students at public universiti es—certainly, John has not contended that Indiana guarantees its residents a college education.

2 The First, Sixth, and Tenth Circui ts have recognized a generalized property interest in higher education. See Dalton Mott, Comment, The Due Process Clause and Students: The Road to A Single Approach of Determining Property Interests in Education , 65 U. K AN

. L. R EV . 651, 659–60 (2017); see also, e.g.

, Flaim v. Med. Coll. Of Ohio , 418 F.3d 629, 633 (6th Cir. 2005) (asserting that “the Due Process Clause is implicated by university disciplinary decisions”). The Fifth and Eighth Circuits have assumed without deciding that such a property interest exists. SeeMott, supra , at 663. The Second, Third, Fourth, Ninth, and Eleventh Circuits join us in making a statespecific inquiry to determine whether a property interest exists. See id. at 658.10 No. 17-3565

In the context of higher education, any property interest is

a ma tt er of contract between the student and the university. Bissessur v. Ind. Univ. Bd. of Trs. , 581 F.3d 599, 601 (7th Cir. 2009) (explaining that the “basic legal relation between a student and a private university or college is contractual in nature” (citation omi tt ed)). And to demonstrate that he possesses the requisite property interest, a university student must do more than show that he has a contract with the university; he must establish that the contract entitled him to the speci fi c right that the university a llegedly took, “such as the right to a continuing educatio n or the right not to be suspended without good cause.” Id. at 601. Generalities won’t do; “the student’s complaint must be speci fi c about the source of this implied contract, the exac t promises the university made to the student, and the promises the student made in return.” Charleston , 741 F.3d at 773. John has not adequately alleged that Purdue deprived himof property because his complaint does not point to any speci fi c contractual promise that Purdue allegedly broke. 3 To besure, John asserts that he had a property interest in his continued enrollment at Purdue. But as support for that proposition, his complaint states only thatthe right arose “from the express and implied contractual relationship” between John and the university. It points to no “ identi fi able contractual promise that the [university] failed to honor.” Bissessur, 581 F.3d at 602 (alteration in original) (citation omi tt ed). His brief does only slightly be tt er. In it, John insists that the Indiana state courts have held that a student enrolled in a

3 For simplicity’s sake, we will refer to the university and its officers collectively as “Purdue” or “the university.”No. 17-3565 11

public institution has a property interest in continuing his education. He cites Reilly v. Daly, in which an Indiana court said: “It is without question that a student’s interest in pursuing an education is included within the Fourteenth Amendment’s protection of liberty and proper ty and that a student facing expulsion or suspension from a public educational institution is therefore entitled to the pr otections of due process.” 666 N.E.2d 439, 444 (Ind. Ct. App. 1996). But John’s reliance on Reillyis misplaced. To begin with, this cryptic sentence—the sum of what the case says onthe topic—does not specify whether university disciplinary proceedings implicate liberty or property interests. And to the extent that Reillyrefers toproperty, it does not purport to identify a state-granted property right to pursue higher education. Instead, it appears toexpress a view about federal law that we have already rejected: that the Due Process Clause protects a generalizedproperty interest in higher education, irrespective of any speci fi c state entitlement. While Indian a is free to align itself with courts taking that view, see supra note 2, our position is clear and to the contrary, see Williams , 530 F.3d at 589 (rejecting “thebald assertion that any student who is suspended from college has su ff ered a deprivation of constitutional property”).
John’s failure to establish a property interest does notdoom his claim, however, because he also maintains that Purdue deprived him of a protected liberty interest: his freedom to pursue naval service, his occupation of choice. To succeed on this theory, John must satisfy the “stigma plus” test, which requires him to show that the state in fl icted reputational damage accompanied by an alteration in legal status that deprived him of a right he previously held. See Mann v. Vogel , 707 F.3d 872, 878 (7th Cir. 2013); see also Paul v. Davis , 424 U.S. 693, 708– 09 (1976); Hinkle v. White , 793 F.3d 764, 767–68 (7th Cir. 2015).12 No. 17-3565

John argues that he has satis fi ed this test because he alleges that Purdue in fl icted reputational harm by wrongfully branding him as a sex o ff ender; that Purdue changed his legal status by suspending him, subjecting him to readmission requirements, and causing the loss of his Navy ROTC scholarship; and that these actions impaired his right to occupational liberty by making it virtually impo ssible for him to seek employment in his fi eld of choice, the Navy. See Lawson v. Sheri ff

of Tippecanoe Cty., Ind. , 725 F.2d 1136, 1138 (7th Cir. 1984) (“The concept of liberty in Fourteenth Amendment jurisprudence has long included the liberty to follow a trade, profession, or other calling.”); Townsend v. Vallas , 256 F.3d 661, 670 (7th Cir. 2001) (Liberty interests are impi nged when someone’s “good name, reputation, honor or integrity [are] called into question in a manner that makes it virtually impossible for ... [him] to fi nd new employment in his chosen fi eld.”). Purdue insists that John has not adequately alleged “stigma,” much less the necessary “plus.” The universitymaintains that it has not and will not divulge John’s disciplinary record without his perm ission. The Navy knows about it only because John signed a form authorizing the disclosure after the investigation began. Because John permi tt ed the disclosure, Purdue says, he cannot complain that Purdue stigmatized him. Purdue cites no cases in support of its position, but it is presumably trying to draw an analogy between John and a plainti ffwho publishes damaging information about himself—because it is true that a plainti ff can’t himself spill the beans and then blame the defe ndant for ruining his reputation. Olivieri v. Rodriguez illustrates the point. 122 F.3d 406 (7thNo. 17-3565 13

Cir. 1997). There, a probationary police o ffi cer asserted a procedural due process claim against his superintendent after he

was fi red for sexually harassing other probationers. Id. at 407.We observed that “the defendant [had not] disclosed to anyone the grounds of the plainti ff ’s discharge.” Id. at 408. The plainti ff , however, insisted that the defendant’s silence didn’t

ma tt er because the plainti ffwould have to tell potential employers why he was fi red—and “[i]f he answers truthfully, he will reveal the ground of the termination as e ff ectively as (actually more e ff ectively than) if the Department had taken out a full-page ad in every newspaper in the nation announcingthe termination of Felix A. Olivieri for sexually harassing female probationary o ffi cers at the Chicago police training academy.” Id. We rejected Olivieri’s claim, holding that a plainti ff who publicizes negative informat ion about himself cannot establish that the defendant deprived him of a liberty interest. Id. As an initial ma tt er, we noted that it was uncertain whether Olivieri’s prospective employers would ever fi nd out why he was discharged. Id. at 408–09 (“A prospective employer might not ask him—might ask only the Chicago Police Department, which for all we know might refuse to disclose the grounds of Olivieri’s discharge; many former employers refuse to answersuch inquiries, because of fear of being sued for defamation.”). In addition, we explained that “[t]he principle of selfdefamation, applied in a case such as this, would encourage [the plainti ff ] to apply for a job to every police force in the nation, in order to magnify his damages; and to blurt out to each of the them the ground of his discharge in the most lurid terms, to the same end.” Id. at 409.14 No. 17-3565

John’s case is di ff erent. He does not claim simply that he might someday have to self-publish the guilty fi nding to future employers. Instead, John sa ys that he had an obligation to authorize Purdue to disclose the proceedings to the Navy. That makes John’s case more like Dupuy v. Samuels , 397 F.3d 493 (7th Cir. 2005), than Olivieri . In Dupuy, we held that the publication requirement of the stigma-plus test was satis fi ed when the plainti ff s were obligated to authorize a state agency to disclose its fi nding that they were child abusers to the plainti ff s’ current and prospective employers. 397 F.3d at 510. In contrast to Olivieri, where disclosure was voluntary and speculative, it was compelled and certain inDupuy . And in Dupuy, unlike in Olivieri, the disclosure was not self-published—it came from the defendant, even if the plainti ff had been obligated to authorize it. So too here: Purdue, not John, revealed to the Navy that it had found him guilty of sexualviolence, and John had a legal obligation to authorize the disclosure.Thus, if what John says is true, the university has stigmatized him by telling the Navy about the guilty fi nding. But the loss of reputation is not itself a loss of liberty, “even when it causes ‘serious impairment of one’s future employment.’” Hojnacki v. Klein–Acosta, 285 F.3d 544, 548 (7th Cir. 2002) (alteration and citation omi tt ed). John must also show that the stigma was accompanied by a change in legal status. In Paul v. Davis, for example, the Supreme Court held that the police did not trigger the Due Pr ocess Clause by posting fl yers falsely asserting that the plainti ff was an active shoplifter. 424 U.S. at 712. The fl yers undoubtedly harmed the plainti ff ’s professional reputation, but their posting did not alter his legal

status. Id. at 708–12. Similarly, in Hinkle v. White , loose-lipped state police o ffi cers spread word that they were investigatingNo. 17-3565 15

the plainti ff for child molestation and that he might be guilty of arson to boot. 793 F.3d at 767. But the gossip did not alter his legal status—the plainti ff was not prosecuted, much less found guilty; nor did the county impose a consequence like fi ring him from his job as county sheri ff

. Id. at 768–69. Even though the rumors made it “vir tually impossible” for him to change to a new job in his chosen fi eld, the lack of a status change meant that he could no t state a due process claim. Id.
at 768–70. John’s situation is unlike that of the plainti ff s in Paul v. Davis and Hinkle v. White because it is not a ma tt er of state-spread rumors or an investigation that was ultimately dropped. Afterconducting an adjudicatory proceeding, Purdue formally determined that John was guilty of a sexual o ff ense. That determination changed John’s status: he went from a full-time student in good standing to one suspended for an academic year. Cf. Mann , 707 F.3d at 878 (holding that the state deprived the plainti ff of occupational liberty when, after an investigation,it found that she had violated child-safety laws and suspended her ability to operate her daycare center); Doyle v. Camelot Care Ctrs. , 305 F.3d 603, 617 (7th Cir. 2002) (holding that the state deprived the plainti ff s of occupational liberty when, after an investigation, it found that they had neglected a minor and informed their respective employers, who fi red them). And it was this o ffi cial determination of guilt, not thepreceding charges or any accompanying rumors, that allegedly deprived John of occupational liberty. It caused his expulsion from the Navy ROTC program (with the accompanying loss of scholarship) and foreclosed the possibility of his reenrollment in it. John has satis fi ed the “stigma plus” test.16 No. 17-3565

B. Having determined that John has adequately alleged that Purdue deprived him of a liberty interest, we turn to whether he has adequately claimed that Purdue used fundamentally unfair procedures in determining his guilt. When a right is protected by the Due Process Clause, astate “may not withdraw [it] on grounds of misconduct absent[] fundamentally fair procedures to determine whether the misconduct has occurred.” Goss , 419 U.S. at 574. Determining what is fundamentally fa ir is always a context-speci fi c inquiry. See Bd. of Curators of Univ. of Mo. v. Horowi tz , 435 U.S. 78, 86 (1978) (“[W]e have frequently emphasized that ‘[t]he very nature of due process negates any concept of in fl exibleprocedures universally applicable to every imaginable situation.’” (citation omi tt ed)). Thus, for example, a university has much more fl exibility in administering academic standards than its code of conduct. See id. (“[T]here are distinct di ff erences between decisions to suspend or dismiss a student for disciplinary purposes and simila r actions taken for academic reasons which may call for hearings in connection with the former but not the la tt er.”). And even in the disciplinary context, the process due depends on a number of factors, including the severity of the consequenc e and the level of education. A 10-day suspension warrants fewer procedural safeguards than a longer one, Goss , 419 U.S. at 584, and universities are subject to more rigorous requ irements than high schools, Pugel v. Bd. of Trs. of Univ. of Ill. , 378 F.3d 659, 663–64 (7th Cir. 2004).
John’s circumstances entitled hi m to relatively formal procedures: he was suspended by a university rather than a high school, for sexual violence rathe r than academic failure, andNo. 17-3565 17

for an academic year rather than a few days. Yet Purdue’s process fell short of what even a high school must provide to astudent facing a days-long suspension. “[D]ue process requires, in connection with a suspen sion of 10 days or less, that the student be given oral or wri tt en notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” Goss , 419 U.S. at 581. John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself su ffi cient to render the process fundamentally unfair. See id. at 580(“[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights....” (quoting Joint Anti-Fascist Refugee Comm. v. McGrath , 341 U.S. 123, 170 (1951) (Frankfurter, J., concurring))). John has adequately alleged that the process was de fi cient in other respects as well. To sa tisfy the Due Process Clause, “a hearing must be a real one, not a sham or pretense.” Dietchweiler by Dietchweiler v. Lucas , 827 F.3d 622, 629 (7th Cir. 2016) (citation omi tt ed). At John’s meeting with the Advisory Commi tt ee, two of the three pane l members candidly admi tt edthat they had not read the investigative report, which suggests that they decided that John was guilty based on the accusation rather than the evidence. See id. at 630 (stating that a hearing would be a sham if “members of the school board came to the hearing having predetermined [the plainti ff ’s] guilt”). And in a case that boiled down to a “he said/she said,” it is particularly concerning that Sermersheim and the commi tt ee concluded that Jane was the more credible witness—in fact, that she was credible at a ll—without ever speaking to her18 No. 17-3565

in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement. 4 It is unclear, to say the least, how Sermersheim and the commi tt ee could have evaluated Jane’s credibility. Sermersheim and the Advisory Commi tt ee’s failure to make any a tt empt to examine Jane’s credibility is all the more troubling because John identi fi ed speci fi c impeachment evidence. He said that Jane was depressed, had a tt empted suicide, and was angry at him for reporting the a tt empt. His roommate—with whom Sermersheim and the Advisory Commi tt ee refused to speak—maintained that he was present at the time of the alleged assault and that Jane’s rendition of events was false. And John insisted that Jane’s behavior after the alleged assault—including her texts, gifts, and continued romantic relationship with him—was inconsistent with her claim that he had commi tt ed sexual violence against her. Sermersheim and the Advisory Commi tt ee may have concluded in the end that John’s impeachment evidence did not undercut Jane’s credibility. But their failure to even question Jane or John’s roommate to probe whether this evidence was reason to disbelieve Jane was fundamentally unfair to John. John also faults Sermersheim for being in charge of both the investigation and adjudicationof his case. We have held, however, that blending these two functions in the university context does not necessarily render a process unfair. Hess v. Bd. of Trs. of S. Ill. Univ. , 839 F.3d 668, 675 (7th Cir. 2016). To rebut the presumption that university administrators are

4 Citing a recent case from the Sixth Circuit, John also argues that he was entitled to cross-examine Jane. See Doe v. Baum , 903 F.3d 575, 581 (6th Cir. 2018). Because John has otherwise alleged procedural deficiencies sufficient to survive a motion to dismiss, we need not address this issue.No. 17-3565 19

“honest and impartial,” a plainti ff must “lay a speci fi c foundation of prejudice or prejudgment, such that the probability of actual bias is too high to be constitutionally tolerable.” Id. This burden is “heavy indeed,” typically requiring evidence that “the adjudicator had a pecu niary interest in the outcomeof the case, or that he was previously the target of the plainti ff ’s abuse or criticism.” Id. (citations omi tt ed). John has made no such allegation here.

C. To this point, we have analyzed the due process claim without distinguishing between defendants. Now, however, we separate them.
(1) We begin with John’s individual-capacity claim against Mitch Daniels, the president of Purdue. The magistrate judge was right to dismiss this claim. Section 1983 “does not allow actions against individuals merely for their supervisory role of others.” Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir.2000). To be liable, a supervisor “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye.” Zentmeyer v. Kendall Cty., Ill. , 220 F.3d 805, 812 (7th Cir. 2000) (quoting Gentry v. Duckworth , 65 F.3d 555, 561 (7th Cir. 1995)). John’s complaint assert s nothing more about Daniels than that “‘The Buck Stops Here ’ with him.” There is no allegation that Daniels knew about the conduct, much less that he facilitated, approved, or condoned it.
(2)The individual-capacity claims against Rollock, Sermersheim, Oliver, and Amberger present a di ff erent obstacle for20 No. 17-3565

John: quali fi ed immunity. For the reasons that we have already explained, John has allege d facts that amount to a constitutional violation. But because the defendants have asserted quali fi ed immunity, John can recover damages from them only if his right to receiv e procedural due process in the disciplinary proceeding was clearly established. See Rainsberger v. Benner, 913 F.3d 640, 647 (7th Cir. 2019). The magistrate judge did not address quali fi ed immunity because he concluded that John had failed to state a due process claim. The defendants raised it below, however, and they press it again here as an alternative ground for a ffi rmance. John insists that it would be premature for us to addressthe issue because we are reviewing the magistrate judge’s dismissal of his claims under Rule 12(b)(6). As he points out, quali fi ed immunity is generally addressed at summary judgment rather than on the pleadings. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (“[A ] complaint is generally not dismissed under Rule 12(b)(6) on quali fi ed immunity grounds.”); see also Jacobs v. City of Chicago , 215 F.3d 758, 765 n.3 (7th Cir. 2000) (“[T]he dismissal of a § 1983 suit under Rule 12(b)(6) is a delicate ma tt er.”). Thus, John argues, we should send the case back to the district court for discovery. There is no hard-and-fast rule, however, against resolving quali fi ed immunity on the pleadings. The reason for deferring it to summary judgment is that an o ffi cer’s entitlement to quali fi ed immunity often “depend[s] on the particular facts of a given case,” Jacobs , 215 F.3d at 765 n.3, and the Federal Rules of Civil Procedure do not require a plainti ffto include much factual detail in a complaint, see F ED

. R. C IV

. P. 8 (providing that a complaint must contain “a short and plain statement of the claim showing that the plea der is entitled to relief”). SeeNo. 17-3565 21

also Pearson v. Callahan , 555 U.S. 223, 238–39 (2009) (“When quali fi ed immunity is asserted at the pleading stage, the precise factual basis for the plainti ff ’s claim or claims may be hard to identify.”). That said, the existence of quali fi ed immunity is not always dependen t on factual development—it is sometimes clear on the face of the complaint that the constitutional right invoked was not clearly articulated in the case law. In that circumstance, the existence of quali fi ed immunity is a “purely legal question” that the court can address on a motion to dismiss. Jacobs , 215 F.3d at 765 n.3.
That is the situation here. Quali fi ed immunity is a high standard. It protects government o ffi cials from liability for civil damages as long as their actions do not violate “clearly established statutory or constitu tional rights of which a reasonable person would have known.” Figgs v. Dawson , 829 F.3d 895, 905 (7th Cir. 2016) (citation omi tt ed). While the general stigma-plus test is well-se tt led in our law, see Hinkle, 793 F.3d at 768, we have never applied it speci fi cally in the university

se tt ing. Instead, our cases in this area have considered only whether students have a propertyinterest in their public university education—and to this point, no student has successfully shown the requisite interest. Because this is our fi rst case addressing whether university discipline deprives a student of a libertyinterest, the relevant legal rule was not “clearly established,” and a reasonable university o ffi cer would not haveknown at the time of John’s proceeding that her actions violated the Fourteenth Amendment. We therefore a ffi rm the dismissal of John’s individual-capacity claims against Rollock, Sermersheim, Oliver, and Amberger.22 No. 17-3565

(3) That leaves John’s claims for injunctive relief, which heseeks to obtain by suing Daniels, Rollock, Sermersheim, Oliver, and Amberger in their o ffi cial capacities. See Ex Parte Young, 209 U.S. 123 (1908). The magistrate judge dismissed this claim without prejudice on the ground that John lackedstanding to bring it. In his complaint, John asked for “an injunction enjoining violations of the Fourteenth Amendment in the process of investigatin g and adjudicating sexual misconduct complaints.” But John doesn’t have standing to claim such relief. He has not alleged th at he intends to re-enroll at Purdue, much less that he face s a “real and immediate threat” that Purdue would again inve stigate him for sexual misconduct, much less that any such investigation would violate due
process. See City of L.A. v. Lyons , 461 U.S. 95, 105 (1983) (“That Lyons may have been illegally ch oked by the police on October 6, 1976, while presumably a ff ording Lyons standing to claim damages against the individual o ffi cers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a tra ffi c violation, or for any other o ff ense, by an o ffi cer or o ffi cers who would illegally choke him into unconsciousness without any provocation or resistance on his part.”). What John really seeks to do is champion the righ ts of other men at Purdue who might be investigated for sexual misconduct using the fl awed procedures that he describes in his complaint. That is a no-go:John plainly lacks standing to assert the Fourteenth Amendment rights of other students, even if he had alleged (which he didn’t) that the threat of inju ry to any one of them was “real and immediate .” Id.No. 17-3565 23

John also seeks to remove the conditions of re-entry imposed by Purdue as part of his discipline. John lacks standinghere too. As we already noted, he has not alleged that he intends to return to Purdue—a necessary fact to demonstrate a cognizable injury from the barriers to re-entry. That said, the magistrate judge dismissed this claim without prejudice, so on remand John can seek to remedy his lack of standing by pleading the necessary facts, if he has them. In his response to the defend ants’ motion to dismiss, and then again in his brief and at oral argument, John argued that he is also entitled to an injunction ordering university o ffi cials to expunge the fi nding of guilt from his disciplinary record. For this relief, John has standing: John’s marred record is a continuing harm for which he can seek redress. See, e.g.
, Flint v. Dennison , 488 F.3d 816, 825 (9th Cir. 2007) (pursuing expungement of university records “serve[s] the purpose of preventing present and future harm”); Doe v. Cummins , 662 F.App’x 437, 444 (6th Cir. 2016) (seeking to “remove the negative notation from appellants’ disciplinary records” is “nothing more than prospective remedial action”); Shepard v. Irving

,77 F. App’x 615, 620 (4th Cir. 2003) (an “F” grade and a plagiarism conviction “constitute[d] a continuing injury to the plainti ff ” and an action to remove them was “prospective in nature”). And he claims that if the guilty fi nding is expunged, a career in the Navy may once again be open to him. Because John did not speci fi cally request this relief in his complaint, the university o ffi cials object that it is too late for him to raise it now. But Federal Rule of Civil Procedure 54(c) states that “[e]very [] fi nal judgment [other than default judgments] should grant the relief to which each party is entitled,24 No. 17-3565

even if the party has not demanded that relief in its pleadings.” That means that even though John may not have asked speci fi cally for expungement, he may still be entitled to it. In Felce v. Fielder, for example, the plainti ffdid not request injunctive relief but instead—using language similar to that in John’s complaint—asked for “other and further relief as the court may deem to be just and equitable.” 974 F.2d 1484, 1501 (7th Cir. 1992). The district court in Felce had not reached the question of injunctive relief because it had held—as the magistrate judge did in John’s case—that the plainti ffhad not alleged the necessary liberty intere st. On appeal, we concluded that the plainti ff did have a liberty interest and instructed the district court to address the i ssue of injunctive relief on remand. Id. at 1502. We do the same here: having determined that John has pleaded a liberty in terest, we instruct the court to address the issue of expungement on remand.

III. John also asserts a claim against Purdue under Title IX, which provides that “[n]o person in the United States shall,on the basis of sex, be excluded from participation in, be denied the bene fi ts of, or be subjected to discrimination under any education program or activity receiving Federal fi nancial assistance.” 20 U.S.C. § 1681(a); see also Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 281 (1998) (explaining that Title IX is enforceable through an implied private right of action). It is undisputed that Purdue receives federal funding and that John was “excluded from particip ation in [or] denied the bene fi ts of ... [an] education prog ram” when Purdue suspended him. 20 U.S.C. § 1681(a). The success of John’s claim depends on whether Purdue discriminated against him “on the basis of sex.” Id

.No. 17-3565 25

Some circuits use formal doctrinal tests to identify general bias in the context of universi ty discipline. For example, theSecond Circuit channels such claims into two general categories. Yusuf v. Vassar Coll. , 35 F.3d 709, 715 (2d Cir. 1994). Inwhat has come to be called the “erroneous outcome” category, the plainti ff must show that he “was innocent and wrongly found to have commi tt ed the o ff ense.” Id. The other category, “selective enforcement,” requires a plainti ff to prove that “regardless of [his] guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding

was a ff ected by the student’s gender.” Id. ; see also Plummer v. Univ. of Hous. , 860 F.3d 767, 777–78 (5th Cir. 2017) (resolving the case by reference to the Yusuf framework); Doe v. Valencia Coll. , 903 F.3d 1220, 1236 (11th Cir. 2018) (“[W]e will assume for present purposes that a student can show a violation of Title IX by satisfying the ‘erro neous outcome’ test applied by the Second Circuit in Yusuf .”). The Sixth Circuit has added two more categories to the mix: “deliberate indi ff erence” and “archaic assumptions.” See Doe v. Miami Univ. , 882 F.3d 579, 589 (6th Cir. 2018) (recognizing “at least four di ff erent theories of liability” in this contex t: “(1) ‘erroneous outcome,’ (2) ‘selective enforcement,’ (3) ‘deliberate indi ff erence,’ and (4) ‘archaic assumptions’” (citations omi tt ed)). We see no need to superimpos e doctrinal tests on the statute. All of these categories simply describe ways in which a plainti ffmight show that sex was a motivating factor in a university’s decision to discipline a student. We prefer to ask the question more directly: do the alleged facts, if true, raise a plausible inference that the un iversity discriminated against John “on the basis of sex”?26 No. 17-3565

John casts his Title IX claim ag ainst the backdrop of a 2011 “Dear Colleague” le tt er from the U.S. Department of Education to colleges and universities. See United States Department of Education, O ffi ce of the Assistant Secretary for Civil Rights, Dear Colleague Le tt er (2011), h tt ps:/www2.ed.gov/print/about/o ffi ces/list/ocr/le tt ers/colleague-201104.html. That le tt er ushered in a more rigorous approach to campus sexual mi sconduct allegations by, among other things, de fi ning “sexual harassment” more broadly than in comparable contexts, id . at 3, mandating that schools prioritize the investigation and resolution of harassment claims, id . at 4, and requiring them to adopt a lenient “more likely than not” burden of proof when adjudicating claims against alleged perpetrators, id. at 11. The Department of Education made clear that it took the le tt er and its enforcement very seriously. See Examining Sexual Assault on Campus, Focusing on Working to Ensure Student Safety, Hearing Before the S. Comm. on Health, Edu c., Labor, and Pensions, 113thCong. 7 (2014) (statement of Catherine Lhamon, Assistant Secretary for Civil Rights, U.S. Dep’t of Educ.) (“[S]ome schools still are failing their students by responding inadequately to sexual assaults on campus. For those schools, my o ffi ce and this Administration have made itclear that the time for delay is over.”). And it warned schools that “[t]his Administration
is commi tt ed to using all its tools to ensure that all schools comply with [T]itle IX so camp uses will be safer for students across the country.” Id. In other words, a school’s federal funding was at risk if it could not show that it was vigorously investigating and punishing sexual misconduct. According to John, this le tt er reveals that Purdue had a fi

nancial motive for discriminating against males in sexual assault investigations. To protect its federal funds, John says,No. 17-3565 27

the university tilted the process against men accused of sexual assault so that it could elevat e the number of punishments imposed. The resulting track record of enforcement would permit Purdue to signal its commitment to cracking down on campus sexual assault, thereby fending o ffany suggestion that it was not complying with the Department of Education’s directive. Cf. Doe v. Columbia Univ. , 831 F.3d 46, 58 n.11 (2dCir. 2016) (“A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstandingthat the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”). And because the O ffi ce of Civil Rights—a sub-agency of the Department of Education—had open ed two investigations intoPurdue during 2016, the pressure on the university to demonstrate compliance was far from abstract. That pressure may have been particularly acute for Sermersheim, who, as a TitleIX coordinator, bore some responsibility for Purdue’s compliance. Other circuits have treated the Dear Colleague le tt er as relevant in evaluating the plausibility of a Title IX claim. For example, in Doe v. Miami University, the plainti ff alleged that “pressure from the government to combat vigorously sexualassault on college campuses and the severe potential punishment—loss of all federal funds—if it failed to comply, led Miami University to discriminate against men in its sexual-assault adjudication process.” 882 F.3d at 594. The Sixth Circuit held that this allegation, comb ined with others, “support[ed] a reasonable inference of gender discrimination.” Id .; see also Doe v. Baum , 903 F.3d 575, 586 (6th Cir. 2018) (explaining that the pressure of a Department of Education investigation and28 No. 17-3565

the resulting negative publicity “provides a backdrop, that, when combined with other circum stantial evidence of bias in Doe’s speci fi c proceeding, gives rise to a plausible claim.”); Columbia Univ. , 831 F.3d at 58 (“There is nothing implausible or unreasonable about the Complaint’s suggested inference that the panel adopted a biased stance in favor of the accusing female and against the defending male varsity athlete in order to avoid further fanning the criticisms that Columbia turned a blind eye to such assaults.”).

That said, the le tt er, standing alone, is obviously not enough to get John over the plausibility line. See Baum , 903 F.3d at 586 (pressure from the Dear Colleague le tt er “alone is not enough to state a claim that the university acted with bias in this particular case”). The le tt er and accompanying pressure gives John a story about why Purdue might have been motivated to discriminate agains t males accused of sexual assault. But to state a claim, he must allege facts raising the inference that Purdue acted at leas t partly on the basis of sex in his particular case. See id. (the Dear Colleague le tt er “provides a backdrop that, when combined with other circumstantial evidence of bias in [a] speci fi c proceeding, gives rise to a plausible claim”). John has alleged such facts here, the strongest one being that Sermersheim chose to cred it Jane’s account without hearing directly from her. The case against him boiled down to a “he said/she said”—Purdue had to decide whether to believeJohn or Jane. Sermersheim’s explanation for her decision (offered only after her supervisor required her to give a reason) was a cursory statement that she found Jane credible and John not credible. Her basis for believing Jane is perplexing, given that she never talked to Jane. Indeed, Jane did not even submitNo. 17-3565 29

a statement in her own words to the Advisory Commi tt ee. Her side of the story was relayed in a le tt er submi tt ed by Bloom, a Title IX coordinator and the director of CARE. For their part, the three pane lists on Purdue’s Advisory Commi tt ee on Equity were similarly biased in favor of Jane and against John. As John tells it—and again, we must accepthis account as true—the majority of the panel members appeared to credit Jane based on he r accusation alone, given that they took no other evidence into account. They made up their minds without reading the inve stigative report and before even talking to John. They re fused to hear from John’s witnesses, including his male roommate who maintained that he was in the room at the time of the alleged assault and that Jane’s rendition of events was false. And the panel members’hostility toward John from the start of the brief meeting despite their lack of familiarity with the details of the case—including Jane’s depression, suicide a tt empt, and anger at John for reporting the a tt empt—further supports the conclusion that Jane’s allegation was all th ey needed to hear to make their decision. It is plausible that Sermersh eim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man. The plau sibility of that inference is strengthened by a post that CARE put up on its Facebook page during the same month th at John was disciplined: an article from The Washington Posttitled “Alcohol isn’t the cause of campus sexual assault. Men are.” Construing reasonableinferences in John’s favor, this statement, which CARE advertised to the campus community, could be understood to blame men as a class for the problem of campus sexual assault rather than the individuals wh o commit sexual assault. And30 No. 17-3565

it is pertinent here that Bloom, CARE’s director, wrote the letter regarding Jane to which Se rmersheim apparently gave signi fi cant weight.Taken together, John’s allegations raise a plausible inference that he was denied an educational bene fi t on the basis of his sex. To be sure, John may fa ce problems of proof, and the fact fi nder might not buy the infere nces that he’s selling. But his claim should have made it past the pleading stage, so we reverse the magistrate judge’s premature dismissal of it.

A fi nal note: John seeks both money damages and injunctive relief for his claim under Title IX. Our earlier discussion of his entitlement to injunctive relief for his due process claim applies equally here.

* * * John has pleaded facts su ffi cient to state a claim under both the Fourteenth Amendmentand Title IX. We thereforeREVERSE and REMAND this case to the district court for proceedings consistent with this opinion.