[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12592

____________________

JOHN DOE, 

Plaintiff-Appellant,

versus

SAMFORD UNIVERSITY, 

MALLORY KRUNTORAD, 

ED.D. TIM S. HEBSON, 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:21-cv-00871-ACA

____________________

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2 Opinion of the Court 21-12592

____________________

No. 21-12840

____________________

JOHN DOE, 

Plaintiff-Appellant,

versus

SAMFORD UNIVERSITY, 

MALLORY KRUNTORAD, 

Ed.D. TIM S. HEBSON, 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:21-cv-00871-ACA

____________________

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21-12592 Opinion of the Court 3

Before WILLIAM PRYOR, Chief Judge, JORDAN, Circuit Judge, and 

BROWN,* District Judge.

WILLIAM PRYOR, Chief Judge:

This consolidated appeal presents two questions: first, 

whether John Doe, a pseudonymous student at Samford University, has stated a claim against the university for a violation of Title 

IX, 20 U.S.C. § 1681(a), based on a university disciplinary board

finding him responsible for sexual assault and suspending him for 

five years; and second, whether Doe is entitled to proceed under a 

pseudonym. Because Doe has not plausibly alleged that his suspension was “on the basis of sex,” see id., we affirm the dismissal of his

claim. And because the dismissal puts an end to the litigation, we

dismiss as moot the appeal from the order denying Doe’s motion 

to proceed under a pseudonym.

I. BACKGROUND 

Because one of the consolidated appeals “is from the dismissal of a complaint, we accept the allegations of the complaint as 

true. We recount the facts as alleged in the complaint. And we construe them in the light most favorable to the plaintiff.” Darrisaw v. 

Pa. Higher Educ. Assistance Agency, 949 F.3d 1302, 1303 (11th Cir. 

2020) (citation omitted). 

* Honorable Michael L. Brown, United States District Judge for the Northern

District of Georgia, sitting by designation.

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John Doe, the pseudonymous plaintiff, was a senior at Samford University, a private Christian university. On the evening of 

Halloween 2020, he attended a party located at an off-campus 

apartment. He brought with him two pitchers of an alcoholic beverage he concocted. “[T]he drink was, at most, seven percent . . . 

alcohol.” 

Jane Roe, another pseudonymous student, arrived at the 

apartment sometime later. Doe and Roe had never met before. After trying some of the beverage Doe brought to the party, Roe 

struck up a conversation with him. “Jane Roe commented to [Doe] 

about the loud noise level at the [p]arty. [Doe] suggested that they 

go to [a] . . . [f]riend’s [a]partment [nearby] where it was quieter so 

they could talk.” Roe agreed and the two left together. “Jane Roe 

did not appear intoxicated” and “[n]o one stopped [her] from leaving the [p]arty with [Doe].” “From the time Jane Roe met [Doe] to 

the time she left the [p]arty with [him], approximately twelve 

minutes passed.” 

At the friend’s apartment, after engaging in small talk, “Jane 

Roe asked [Doe] if he wanted to ‘hook up.’” “John asked Jane if she 

was sure she wanted to engage in sexual activity with him, and she 

confirmed that she did.” “Several times before and during their 

consensual sexual intercourse, [Doe] asked Jane Roe for her consent, and Jane Roe expressed consent.” “At all times during the consensual sexual intercourse, Jane Roe had control over her speech 

and bodily movements.” And “[a]t all times during the consensual 

sexual intercourse,” Doe believed, based on “Jane Roe’s words and 

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actions,” that Roe “understood the who, what, where, when, why, 

and/or how of the sexual interaction.” “After the sexual intercourse ended, Jane Roe re-dressed on her own, left the [f]riend’s 

[a]partment, descended a staircase, and returned to the [p]arty, all 

without any assistance from [Doe].” 

“Upon her return to the [p]arty, Jane Roe told [one witness]

that she was sexually assaulted by [Doe].” Roe then walked outside. 

“Jane Roe’s sister . . . arrived at the outside location where Jane was 

and asked what was going on.” By then, Doe had also returned to 

the party, and he went outside at the request of another partygoer. 

“A female outside asked [Doe] what he put in Jane Roe’s drink. 

[Doe] responded that he put ‘everything in her drink.’” Doe states 

that he “mean[t] that he [had] made the [alcoholic beverage].” 

After “Jane Roe’s sister . . . took [Roe] back to [Roe]’s dorm,” 

Roe stated that Doe “raped her, gave her hickeys, and bit her lip 

and breast.” The sister “took photos of Jane’s alleged injuries.” Roe 

filed a police report against Doe the next day. “Jane’s blood was 

drawn to test for the presence of drugs,” but “John never saw the 

results of the blood test.” 

Four days later, “Jane Roe filed a Title IX complaint . . . 

against [Doe,] alleging that [Doe]” had violated the university’s Title IX policy. Specifically, “Jane Roe alleged that [Doe] had raped 

her on the night of October 31, 2020, when she was incapacitated.” 

Doe asserts that the initial steps of the investigation were 

“[i]n clear violation of [the university’s Title IX] [p]olicy.” The 

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policy provides that “the [university’s] Title IX Coordinator must 

provide a written notice of allegations [of sexual misconduct] to the 

parties.” It also provides that, “[w]hen the Title IX Coordinator receives a formal complaint of [s]exual [m]isconduct, the Title IX Coordinator will attempt to schedule an initial meeting with the respondent.” But, according to Doe, Tim Hebson, the Title IX Coordinator, “did not provide [Doe] with a written notice of the allegations made against him by Jane Roe before [he] was interviewed.” 

And Hebson “never conducted an initial meeting with [Doe] to notify him of Jane Roe’s complaint and the alleged policy violations 

in issue.” Doe does not mention whether he received a written notice or met with Hebson at a later date.

Hebson “assigned [Mallory] Kruntorad as the Title IX Investigator to investigate the allegations of [Roe’s] [c]omplaint.” This 

investigation was Kruntorad’s “first Title IX investigation.” 

Kruntorad “received little to no training about conducting unbiased and impartial Title IX investigations,” and “lacked the experience necessary to conduct a Title IX investigation on her own in 

accordance with the [p]olicy.” After emailing Doe about the investigation in early November, Kruntorad “met with [Doe] to take his 

statement” in mid-November. “Kruntorad never advised [Doe] of 

the specifics of Jane Roe’s allegations against him aside from a claim 

that [he] raped Jane Roe.”

Kruntorad interviewed Roe several days later. “Jane Roe 

told . . . Kruntorad that she was drugged at the [p]arty and could 

not consent to the sexual interaction with [Doe].” Roe also stated 

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“that when [Doe] got her a drink at the party, [Doe]’s back was to 

her and she ‘could not see what was being put in it.’” And she stated 

that “she started to feel ‘fuzzy’ when walking to the [f]riend’s 

[a]partment with [Doe].” On an audio recording of Kruntorad’s interview with Jane Roe, “Kruntorad can be heard stating, ‘I still 

think, regardless, you couldn’t give consent.’” 

Doe asserts that the interview was deficient because 

Kruntorad failed to ask Roe certain questions. Kruntorard “failed 

to question Jane Roe about whether Jane Roe consumed any alcoholic beverages prior to the [p]arty.” She “never questioned Jane 

Roe about whether she obtained hickeys from sexual activity on 

another night.” And she did not “conduct[] follow-up interviews 

with Jane Roe or [Doe] during the course of the investigation.”

At the end of an eleven-day-long investigation, Kruntorad 

wrote and provided to Doe and Roe a preliminary investigation report. Doe asserts that it “contained highly prejudicial hearsay statements purportedly made by law enforcement about [his] alleged 

attack of [Roe] and [his] suspected prior sexual history,” and 

“highly prejudicial and inflammatory statements about [Doe]’s 

mental health.” Still, one witness had “expressed disbelief that 

[Roe] was drugged.” The same witness had “reported that Jane 

Roe’s sister . . . stated that Jane Roe may have received the hickeys 

on a prior evening.” That witness had also reported that “Jane Roe 

told [a third party] that she consented to sex with [Doe].” But “several witnesses . . . attested to [Roe’s] incapacitation.” And 

Kruntorad “found Jane Roe more credible than [Doe]” based on 

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the statements of those witnesses. The report was accompanied by 

recordings of the interviews Kruntorad had conducted. 

Doe and Roe both responded to the report, as the Title IX

policy permits. Roe reiterated “that she believed she was drugged 

by [Doe] and that she never got physically sick from excess alcohol.” And she “was critical of [the witness] who expressed disbelief 

that she was drugged.” Doe “submitted evidence about his [Attention-Deficit/Hyperactivity Disorder] and [Pervasive Developmental Disorder-Not Otherwise Specified], which is high functioning 

autism.” “This evidence was submitted to explain [Doe]’s rigid 

communication style.” According to the complaint, a revised report “found [Doe] to be less credible than Jane Roe based on statements that [Doe] made about immaterial facts.”

Separately, Doe lodged objections with Hebson about the 

investigation. Doe contested the jurisdiction of the university over 

the complaint. He “questioned the incompleteness and lack of impartiality of [the] investigation.” He “express[ed] concern” that 

Kruntorad failed to do more “to uncover exculpatory evidence.” 

He “requested the full names of all witnesses interviewed in the 

investigation,” “the photographs of Jane Roe’s alleged injuries,” 

and “Jane Roe’s medical . . . records.” He “objected to the inclusion 

of the recordings in the materials to be provided to the Title IX 

[h]earing panel” because the report “did not identify . . . the names 

of the speakers heard on the recording.” And he asked that the interview summaries of statements made by parties “who would not 

be testifying at the hearing be redacted from the investigative

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report.” The Title IX policy does not appear to require the disclosure of the names of witnesses, but it does prohibit the hearing 

panel from “rely[ing] on any statement of [a] party or witness” who 

does not submit to cross-examination at the live hearing.

Doe was not satisfied with Hebson’s response. “Hebson refused to provide the names of the witnesses interviewed by . . . 

Kruntorad,” and did not address Doe’s request for access to photographs of Roe’s injuries and Roe’s medical records. Hebson also 

told Doe that “decisions related to presented information will be 

decided upon at the hearing,” a statement that is consistent with a 

provision in the policy that the power to determine the admissibility of evidence resides with the hearing panel. 

A live hearing took place before a hearing panel over two 

days in early 2021. Roe and her sister testified. “[F]or the first time, 

Jane Roe claimed that she consumed alcohol prior to arriving at the 

[p]arty.” And “for the first time, Jane Roe suggested that her incapacitation was the result of drinking too much alcohol, rather than 

being drugged by [Doe].” Roe’s sister testified about “purported injuries that Jane Roe sustained” and “testified that Jane Roe passed 

out and had no pulse at times outside of the [p]arty.” Doe does not 

mention what evidence he presented or whether he testified, but 

he alleges that the hearing panel “refused to hear testimony from” 

the individual who had written a report on Doe’s behalf about 

Doe’s autism. He also alleges that “the Title IX Hearing Panel received an un-redacted copy of the Title IX [i]nvestigation [r]eport” 

that contained statements from non-testifying witnesses. 

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The hearing panel issued a notice of determination “finding 

[Doe] responsible for engaging in prohibited conduct” and suspending him for five years. Doe does not describe the notice of determination in much detail, but he alleges that the “[p]anel found 

that Jane Roe’s ability to consent to intercourse with John was impaired by alcohol consumption.” And the panel “cited Jane Roe’s 

testimony that she consumed alcohol before the [p]arty.” 

Doe appealed the notice of determination to a university appeal panel. Doe argued that there was “a biased, impartial, [sic] and 

prejudicial investigation process,” and that there were “several procedural irregularities.” He also submitted “newly discovered evidence”—a letter from a doctor “opin[ing] that many of Jane Roe’s 

claims were not medically supportable” because “she could not 

pass out and then awaken and be able to text or have lucid conversations with other students, and [because] [Roe]’s explanation 

about bruising on her chest could be attributed to prior trauma to 

the skin.” 

The appeal panel dismissed Doe’s appeal. The “[a]ppeal 

[p]anel conceded that there were procedural irregularities during 

the investigation process that were inconsistent with the [p]olicy, 

largely attributing these [irregularities] to ‘inexperience’ and ‘adjustment’ to a new policy.” The appeal panel “did not address why 

[the doctor’s] report” would not “affect the outcome of the matter.” The appeal panel “determined the [proffered] testimony [regarding Doe’s autism] was not relevant but failed to explain the 

basis of this determination.” And the appeal panel “acknowledged 

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that the [h]earing [p]anel received a copy of the full Title IX [i]nvestigative [r]eport but found that those statements were not considered by the [h]earing [p]anel.”

Doe sued the university, Kruntorad, and Hebson. The complaint alleges that the university violated Title IX, 20 U.S.C. 

§ 1681(a), because “gender bias was . . . a motivating factor in [the 

university’s] erroneous finding against [him]” and because he “was 

not treated as favorably as a female would be treated in a Title IX 

investigation.” In support of his theory of selective enforcement of 

the policy, Doe alleges that “upon review of [the university’s] Clery 

statistics it appears that there have been at least seven reported 

rapes.” And he alleges that, “[u]pon information and belief, the accused students were all males” and were “treated differently than a 

female would be treated if accused of a similar offense.” The complaint also advances state-law claims against the university for 

breach of contract and breach of the covenant of good faith and fair 

dealing, and against all defendants for negligence. The complaint 

requests declaratory and injunctive relief, as well as compensatory 

and punitive damages.

Immediately after filing his complaint, Doe filed a motion to 

proceed under a pseudonym. The university “d[id] not object to 

[the motion], [and] contend[ed]” that the district court should “seal 

the record in this case pending the opportunity for counsel to confer regarding entry of an appropriate protective order.” The district 

court denied the motion to seal the entire record and denied Doe’s 

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request to proceed under a pseudonym. Doe appealed the order. 

And the district court stayed the order pending appeal.

The university moved to dismiss for failure to state a claim. 

See FED. R. CIV. P. 12(b)(6). Regarding the Title IX claim, the university argued that one of the theories of harm mentioned in the 

complaint—liability based on an erroneous outcome motivated by 

sex bias—“deviates from the requirements of Title IX” and “has not 

been adopted by the Supreme Court or the Eleventh Circuit.” It 

argued that the relevant question was instead “whether the plaintiff 

has pleaded a plausible set of facts demonstrating that plaintiff’s sex 

was the reason for the university’s decision.” It argued that, under 

either approach, Doe failed to state a claim because he “ha[d] not 

alleged facts sufficient to show a particularized causal connection 

between the outcome and gender bias.” And it argued that Doe 

failed to state a claim under the other theory of harm mentioned in 

the complaint—selective enforcement—because the complaint 

lacked facts supporting the assertion that Doe “was not treated as 

favorably as a female would be treated in a Title IX investigation.”

The district court granted the motion to dismiss. It agreed 

with the university that Doe’s theories of harm were at odds with 

the text of Title IX, but it “analyze[d] his claim[] under those theories” anyway because “Doe framed both his complaint and his argument in response to the motion to dismiss under [those] theories.” The district court concluded that Doe had “adequately allege[d] that he was innocent and wrongly found to have committed 

the offense.” But it explained that the complaint fell short under 

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the erroneous outcome theory because the allegations, taken together, did not “support[] a reasonable inference that anti-male bias 

caused the erroneous outcome.” 

The Title IX claim fared no better under the selective enforcement theory. The district court explained that “Doe’s statements that a female would be treated more favorably than he was 

treated are utterly conclusory.” And “[e]ven taking all of John 

Doe’s non-conclusory allegations as true, he cannot show that [the 

university] treats sexual assault complaints against female respondents any differently than it treats sexual assault complaints against 

male respondents if he cannot point to a female respondent.” 

The district court dismissed the Title IX claim without prejudice. And it declined to exercise supplemental jurisdiction over 

the remaining claims, which were all premised on violations of 

state law. It dismissed those claims without prejudice, too. Doe 

timely appealed and we consolidated his two appeals.

II. STANDARD OF REVIEW 

“We review de novo the dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.” 

Feldman v. Am. Dawn, Inc., 849 F.3d 1333, 1339 (11th Cir. 2017).

We review questions of our jurisdiction under the same standard. 

United States v. Amodeo, 916 F.3d 967, 970 (11th Cir. 2019).

III. DISCUSSION 

We divide our discussion in two parts. We first explain why 

Doe failed to state a claim for a violation of Title IX. Second, we 

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explain why the appeal from the order denying the motion to proceed under a pseudonym is moot.

A. Doe Failed to State a Claim for a Violation of Title IX.

Familiar principles govern a motion to dismiss for failure to 

state a claim. “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to state a claim 

to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (internal quotation marks omitted). Because the presumption of truth applies only to facts, the court may disregard “labels and conclusions . . . couched as . . . factual allegation[s].” Id.

(internal quotation marks omitted). 

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Id. “Factual 

allegations that are merely consistent with a defendant’s liability 

fall short of being facially plausible.” Chaparro v. Carnival Corp., 

693 F.3d 1333, 1337 (11th Cir. 2012) (internal quotation marks omitted). And when determining whether the complaint crosses “the 

line between possibility and plausibility of entitlement to relief,” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration 

adopted) (internal quotation marks omitted), “courts may infer 

from the factual allegations in the complaint obvious alternative 

explanations, which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer,” Am. Dental 

Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) 

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(alteration adopted) (internal quotation marks omitted); see also 

Twombly, 550 U.S. at 554 (holding that allegations of wrongdoing

were not plausible because the facts alleged were “consistent with 

[liability], but just as much in line with a wide swath of ” lawful 

conduct).

Before applying these principles to Doe’s complaint, we address a threshold question: the appropriate framework for establishing a violation of Title IX. Title IX provides that “[n]o person 

. . . 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). The Supreme Court has held “that Title 

IX is . . . enforceable through an implied private right of action.” 

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998). But 

“[n]either the Supreme Court nor this Court has established a 

framework for analyzing Title IX challenges to university disciplinary proceedings.” Doe v. Valencia Coll., 903 F.3d 1220, 1236 (11th 

Cir. 2018).

Doe advances two tests for establishing liability for a university disciplinary proceeding, both derived from Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994)—the “erroneous outcome” test and 

the “selective enforcement” test. “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 [sex] bias.’” Valencia 

Coll., 903 F.3d at 1236 (quoting Yusuf, 35 F.3d at 715). Under the 

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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].” Yusuf, 35 F.3d at 715.

The university, by contrast, urges the Court to apply 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’?” Doe v. Purdue Univ., 928 F.3d 

652, 667–68 (7th Cir. 2019). This test has been adopted by at least a 

plurality of our sister circuits. See, e.g., Doe v. Univ. of Scis., 961 

F.3d 203, 209 (3d Cir. 2020); Sheppard v. Visitors of Va. State Univ., 

993 F.3d 230, 236 (4th Cir. 2021); Doe v. Univ. of Ark. - Fayetteville, 

974 F.3d 858, 864–65 (8th Cir. 2020); Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 947 (9th Cir. 2020); see also Doe v. Univ. of 

Denver, 1 F.4th 822, 830 (10th Cir. 2021) (agreeing with this approach and modifying it to suit review of a motion for summary 

judgment).

The Seventh Circuit test hews more closely to “the text of 

the statute and binding precedent” than does Yusuf. Cf. Ring v. 

Boca Ciega Yacht Club Inc., 4 F.4th 1149, 1158 (11th Cir. 2021) (in 

the context of another anti-discrimination statute, preferring a textbased rule). It mirrors the statutory prohibition of adverse action 

“on the basis of sex.” 20 U.S.C. § 1681(a). It incorporates the plausibility standard against which factual allegations must be assessed. 

And its use in other circuits “make[s] clear that this [test] is judicially administrable.” Cf. Ring, 4 F.4th at 1158. The tests in Yusuf, 

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by contrast, do not capture the full range of conduct that could lead 

to liability under Title IX. They “simply describe [two] ways in 

which a plaintiff might show that sex was a motivating factor in a 

university’s decision.” Purdue, 928 F.3d at 667; see also Yusuf, 35 

F.3d at 715 (“Plaintiffs attacking a university disciplinary proceeding on grounds of [sex] bias can be expected to fall generally within 

two categories.”). So, “at bottom[,] [the Yusuf tests] ask the same 

question,” Doe v. Columbia Coll. Chi., 933 F.3d 849, 854–55 (7th 

Cir. 2019), that the Seventh Circuit test “ask[s] . . . more directly,” 

Purdue, 928 F.3d at 667. Indeed, even though some circuits have 

treated Yusuf as having established “formal doctrinal tests,” id., 

Yusuf itself acknowledges that, “[i]n order to survive a motion to 

dismiss, the plaintiff must specifically allege the events claimed to 

constitute intentional discrimination as well as circumstances giving rise to a plausible inference of . . . discriminatory intent,” 35 

F.3d at 713.

“We agree with the Seventh[] Circuit’s approach,” with one 

modification, “and see no need to deviate from the text of Title IX.” 

Sheppard, 993 F.3d at 236. The Seventh Circuit test asks whether 

the facts “raise a plausible inference” of a Title IX violation, Purdue, 

928 F.3d at 668 (emphasis added). And, to be sure, the ultimate inquiry is the “facial plausibility” of the complaint. But facial plausibility is determined by asking whether the facts alleged “allow[] the 

court to draw the reasonable inference that the defendant is liable.” 

Iqbal, 556 U.S. at 678 (emphasis added). We ask whether the 

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alleged facts, if true, permit a reasonable inference that the university discriminated against Doe on the basis of sex.

1. The Alleged Facts Do Not Permit a Reasonable Inference that 

the University Discriminated against Doe on the Basis of Sex.

Doe contends that he has pleaded sufficient facts to permit a 

reasonable inference of sex discrimination, but we disagree. He asserts that the inference is warranted because of the allegations 

about 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 a reasonable inference of sex 

discrimination. But, viewed in isolation or collectively, these allegations do not make it plausible that Doe was suspended on the 

basis of sex. We address each set of allegations in turn.

a. The Alleged Procedural Irregularities Do 

Not Make Sex Discrimination Plausible.

Doe’s argument that “gross procedural deviations” permit a 

reasonable inference of sex discrimination fails for two reasons. 

First, some of the alleged deviations are either conclusory or incomplete. Second, the remaining allegations do not permit a reasonable inference of sex discrimination.

Some of Doe’s allegations of procedural irregularities are assertions unsupported by facts. For example, Doe alleges that “[t]he 

[i]nvestigation [r]eport contained highly prejudicial hearsay statements purportedly made by law enforcement about [Doe]’s alleged 

attack of [Roe] and [Doe]’s suspected prior sexual history.” And he 

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alleges that the report also “contained highly prejudicial and inflammatory statements about John’s mental health.” But Doe’s allegations that the statements were “prejudicial” and “inflammatory” are “not entitled to the assumption of truth” because these 

allegations are “labels” and “[un]supported by factual allegations.” 

See Iqbal, 556 U.S. at 678–79 (internal quotation marks omitted); 

cf. Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (explaining 

that a complaint was conclusory because the plaintiff “allege[d]

that she was ‘required to work in places and under conditions 

where prejudice and bias exist,’ but her complaint nowhere allege[d] any specific oppressive conditions or expressions of ‘prejudice and bias’” (citation omitted)). And the inclusion of hearsay in 

the investigation report was not necessarily improper because the 

Title IX policy provides that the report “may consist of any relevant 

information,” including “any . . . evidence obtained during the investigation,” and the prior sexual conduct of an individual accused 

of sexual assault may be relevant. See, e.g., United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004) (finding no error in the 

admission of the criminal defendant’s history of sexual conduct because “[t]he evidence was relevant to show [his] motive, intent, 

knowledge, plan and preparation, and lack of mistake”).

Doe also counts among the procedural irregularities the decision of “[t]he appellate board . . . [to] reject[] all medical evidence 

showing the falsity of [Roe’s] claims,” but Doe does not allege sufficient facts for the Court to suppose that this decision was improper. Under the university’s Title IX policy, “new evidence” may 

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supply the basis for an appeal if that evidence “was not reasonably 

available at the time of the determination regarding responsibility” 

and “could affect the outcome of the matter.” Doe has not alleged 

that the evidence he submitted to the appeal board—a letter from 

a doctor—satisfies these requirements. The letter “opined . . . that 

[Roe] could not pass out and then awaken and be able to text or 

have lucid conversations[,] . . . and that [Roe’s] explanation about 

bruising on her chest could be attributed to prior trauma to the 

skin.” But Doe has not alleged that this evidence “was not reasonably available at the time of the determination regarding responsibility.” For example, he did not allege that he was unaware, prior 

to the hearing, of the evidence concerning Roe’s injuries or her sister’s statement about Roe’s lapse of consciousness. Doe alleges 

only that “[t]he [a]ppeal [d]ecision did not address why [the letter] 

did not rise to the level that would affect the outcome of the matter”—omitting any discussion of the reasonable availability of the 

letter and of the appeal board’s consideration of that requirement.

Doe’s remaining allegations of procedural irregularities do 

not support a reasonable inference that the university acted “on the 

basis of sex.” See 20 U.S.C. § 1681(a). A deviation from a Title IX 

policy is not, in and of itself, a violation of Title IX. Cf. Gebser, 524 

U.S. at 292 (holding that a school’s failure to follow a Title IX regulation “d[id] not itself constitute ‘discrimination’ under Title IX”). 

To be sure, that kind of deviation is at least “consistent with” sex 

discrimination. See Twombly, 550 U.S. at 554 (emphasis added). 

But allegations that are “merely consistent with” liability “stop[] 

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21-12592 Opinion of the Court 21

short of the line between possibility and plausibility.” See id. at 557. 

And Doe’s “bare assertion” that the procedural irregularities are attributable to his sex does not make his speculation plausible. See id.

at 555–56; Austin v. Univ. of Or., 925 F.3d 1133, 1138 (9th Cir. 2019) 

(explaining that the plaintiffs had failed to state a Title IX claim “because the [plaintiffs] d[id] not articulate any basis to discern that the 

administration or outcomes of the disciplinary proceedings were 

flawed due to the [plaintiffs]’ sex”); Columbia Coll., 933 F.3d at 856 

(explaining that alleged restrictions on a respondent’s “access to 

documents relevant to the investigation” did not “demonstrate[] an 

anti-male bias” in part because “th[e] allegation [was] divorced 

from [sex]—Doe d[id] not allege that females accused of sexual assault were allowed to review materials or that only female victims 

were allowed to review them”); Yusuf, 35 F.3d at 715 (“[A]llegations of a procedurally or otherwise flawed proceeding . . . combined with a conclusory allegation of [sex] discrimination [are] not 

sufficient to survive a motion to dismiss.”).

Doe’s allegations permit “obvious alternative explanations 

. . . [that] suggest lawful conduct rather than the unlawful conduct 

the plaintiff would ask the court to infer.” Am. Dental, 605 F.3d at 

1290 (alteration adopted) (internal quotation marks omitted). 

Those lawful explanations include ineptitude, inexperience, and 

pro-complainant bias. For example, Doe seeks an inference of sex 

discrimination from 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 Title IX policy requires. 

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22 Opinion of the Court 21-12592

But this failure is “just as much”—if not more—“in line,” see 

Twombly, 550 U.S. at 554, with the appeal board’s explanation that 

the hearing panel was still adjusting to the three-month-old Title 

IX policy. See 85 Fed. Reg. 30026, 30028 (May 19, 2020); 34 C.F.R. 

§ 106.45(b)(6)(i) (effective August 14, 2020, requiring “decisionmaker(s)” to disregard the testimony of witnesses who do not submit to cross-examination at a live hearing). Indeed, Doe alleges that 

the appeal board “found that [the improperly unredacted] statements were not considered by the [h]earing [p]anel.” And Doe does 

not dispute this finding. This undisputed finding makes the failure 

to redact “more likely explained by . . . lawful” mistake than unlawful bias. See Iqbal, 556 U.S. at 680; Davis ex rel. LaShonda D. v. 

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 642 (1999) (explaining 

that the Supreme Court has “declined the invitation to impose [Title IX] liability under what amount[s] to a negligence standard”). 

Similarly, the allegations about deficiencies in the investigation are more in line with the appeal board’s explanation that the 

deficiencies are attributable to the investigator’s “inexperience.” 

Doe alleges that “Jane Roe’s complaint against [him] was 

[Kruntorad’s] first Title IX investigation.” He alleges that, “prior to 

leading the investigation of the [Title IX] [c]omplaint, [Kruntorad] 

received little to no training about conducting . . . Title IX investigations.” And he alleges that Kruntorad “lacked the experience necessary to conduct a Title IX investigation on her own in accordance 

with the [p]olicy.” So, ineptitude—a sex-neutral explanation that 

does not violate Title IX, see Davis, 526 U.S. at 642—is the likelier, 

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21-12592 Opinion of the Court 23

more “obvious . . . explanation” for the investigator’s departures 

from the policy, see Twombly, 550 U.S. at 567. 

Moreover, even if evidence of an investigation and hearing 

that are “inconsistent with ordinary practice . . . may give rise to an 

inference of bias,” Univ. of Ark., 974 F.3d at 865, there is no reason 

to suppose that this bias concerned Doe’s sex. To the contrary, Doe 

states throughout his complaint that the university favors all complainants and disfavors all respondents in Title IX proceedings. For 

example, he argues that Samford and other universities have “institutionalize[d] unfair procedures that lead to unfair and unreasonable punishments of students accused of misconduct.” (Emphasis 

added.) He alleges that Samford “announced to its constituency” 

that, during its “initial assessment” of a Title IX complaint, “the 

well-being of the complainant is paramount.” (Emphasis added.)

And he characterizes this announcement as “exhibit[ing] . . . [a] 

preference for the alleged victim.” (Emphasis added.) These allegations, taken together with university’s alleged procedural missteps, 

might permit a reasonable inference that the decision to suspend 

Doe was motivated by a pro-complainant, anti-respondent bias. 

But discrimination against respondents is not discrimination “on 

the basis of sex,” see 20 U.S.C. § 1681(a), and “does not permit a 

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

women can be respondents,” Doe v. Univ. of Denver, 952 F.3d 

1182, 1196–97 (10th Cir. 2020).

Doe counters that discrimination on the basis of sex may be 

inferred from the “arguably inexplicable” outcome of the hearing. 

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24 Opinion of the Court 21-12592

See Doe v. Oberlin Coll., 963 F.3d 580, 588 (6th Cir. 2020). Under 

this theory, “the merits of the decision itself . . . can support an inference of sex bias” “when the degree of doubt” in “the accuracy of 

the disciplinary proceeding’s outcome . . . passes from articulable 

to grave.” Id. (internal quotation marks omitted); see also id. (drawing that inference because the hearing panel’s decision, as alleged, 

was without an “apparent basis”); Univ. of Ark., 974 F.3d at 865 

(holding that the plaintiff stated a Title IX claim in part because “the 

allegations in the complaint support[ed] an inference that the hearing panel reached an outcome that was against the substantial 

weight of the evidence”). Doe does not explain why this inference 

would be “reasonable,” see Iqbal, 556 U.S. at 678, but presumably 

the rationale is that the more outrageous the decision is, the less 

likely it is that any errors were made in good faith. And when the 

erroneous decision ceases to be consistent with good-faith mistake, 

the explanation of improper bias becomes sufficiently likely to 

cross “the line between possibility and plausibility.” See Twombly, 

550 U.S. at 557. Doe asserts that he is entitled to this inference because “the underlying investigation was completed in just ten . . . 

days,” the investigator “failed to even attempt to gather potentially 

exculpatory evidence,” and “[n]either [Roe] nor the hearing panel 

commented on the flat contradiction between [Roe]’s theories of 

intoxication.” We disagree.

Doe’s assertions are either irrelevant to his theory or unsupported by the factual allegations in his complaint. The duration and 

quality of the investigation are irrelevant because they relate to the 

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21-12592 Opinion of the Court 25

pre-hearing procedure, not “the merits of the decision itself.” Oberlin, 963 F.3d at 588. And the complaint establishes that the investigator did in fact uncover and disclose to Doe “potentially exculpatory evidence,” including the statement of a witness “who expressed disbelief that [Roe] was drugged,” “reported” that “Roe 

told [a third party] that she consented to sex with [Doe],” and “reported that Jane Roe’s sister . . . stated that Jane Roe may have received the hickeys on a prior evening.” 

Doe’s allegations also do not cast “grave” doubt on “the 

merits of the decision” of the university, see Oberlin, 963 F.3d at 

588, that a preponderance of the evidence supported a finding of 

responsibility. According to the complaint, Roe testified “that she 

consumed alcohol prior to arriving at the [p]arty,” and she told the 

investigator that “she started to feel ‘fuzzy’ when walking to the 

[f]riend’s [a]partment with [Doe].” Roe told others immediately after the sexual encounter “that she was sexually assaulted by [Doe],” 

and that he “bit her lip and breast.” Doe does not dispute that, after 

the incident, there was “bruising on [Roe’s] chest.” And “several 

witnesses . . . attested to [Roe’s] incapacitation.” For example, 

Roe’s sister testified “that Jane Roe passed out and had no pulse at 

times outside of the [p]arty.” To be sure, the hearing panel credited

Roe’s testimony despite her inconsistencies about whether she was 

drunk or had been drugged. But under the Title IX policy, incapacity can be caused “by alcohol or drug consumption (whether voluntary or involuntary).” (Emphasis added.) So, Roe’s apparent uncertainty about the cause of her alleged incapacitation has little 

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26 Opinion of the Court 21-12592

bearing on whether Roe was in fact incapacitated. And, in the light 

of Doe’s statement to partygoers that he had “put ‘everything in 

[Roe’s] drink,’” Roe’s initial belief that she had been drugged is understandable, not inexplicable.

One uncited portion of the complaint alleges that the hearing panel made no mention of Doe’s inconsistencies in the notice 

of determination, but this allegation does not alter our conclusion.

We regularly permit factfinders to make unstated but implicit credibility determinations in more formal settings than school disciplinary hearings, such as in criminal proceedings. See, e.g., United 

States v. Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (on review of 

the denial of a motion to suppress evidence, explaining that we 

“give substantial deference to the factfinder’s credibility determinations, both explicit and implicit.” (internal quotation marks omitted)). We cannot hold the hearing panel to a higher standard than 

we hold district courts. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 88 (1978) (“A school is an academic institution, 

not a courtroom or administrative hearing room.”).

b. The Alleged Public Pressure and Public Statements 

Do Not Make Sex Discrimination Plausible. 

Doe next argues that the complaint contains other facts 

from which sex discrimination may reasonably be inferred. In particular, he mentions an announcement by the university in 2019 

that, during “an initial assessment” of a Title IX complaint, “the 

well-being of the complainant is paramount”; that the university

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

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21-12592 Opinion of the Court 27

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.” 

Doe contends that these allegations make plausible his belief that 

the university yielded to “public pressures to . . . appear tough on 

sexual assault” by discriminating on the basis of sex.

Again, Doe is mistaken. As already explained, the allegations 

in the complaint about the university’s public statements at most 

support a reasonable inference of pro-complainant bias, not profemale bias. And the assertion that public pressure led the university to discriminate on the basis of sex is not supported by facts. 

Doe makes a passing reference in the introductory section 

of his complaint to the so-called “Dear Colleague Letter” issued by 

the United States Department of Education in 2011. That letter “instructed universities on how to investigate and resolve complaints 

of sexual misconduct under Title IX.” Doe asserts that “[e]ducational institutions . . . continue to overreact to the threat of federal 

investigations, sanctions, and lawsuits, in part by discriminating 

against male students on the basis of their sex.” 

Doe concedes that the Department of Education “formally 

rescinded the 2011 Dear Colleague Letter on September 22, 2017,” 

long before Doe’s hearing. And it is undisputed that the Department promulgated new regulations that require greater procedural 

protections for the accused, see 34 C.F.R. § 106.45, and that the university has updated its Title IX policy to comply with those regulations. Doe’s allegations about a government policy that has been 

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28 Opinion of the Court 21-12592

rescinded and replaced do not assist him in crossing “the line between possibility and plausibility of entitlement to relief,” 

Twombly, 550 U.S. at 557 (alteration adopted) (internal quotation 

marks omitted); see also Columbia Coll., 933 F.3d at 855–56 (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”).

c. The Clery Statistics Do Not Change 

the Plausibility of the Title IX Claim.

The allegations about the university’s Clery report do not 

assist Doe in stating a Title IX claim because the contents of the 

report are “factually neutral.” See Twombly, 550 U.S. at 557 n.5. In 

his complaint, Doe alleges that that “upon review of [the university’s] Clery statistics it appears that there have been at least seven 

reported rapes and nine reported cases of fondling”; and that,

“[u]pon information and belief,” “all” “the accused students were 

. . . males.” But, as the district court explained, “[t]he Clery [r]eport 

provides statistics of [on-campus] crimes reported to [Samford’s 

Department of Public Safety and Emergency Management], local 

law enforcement agencies, and Campus Security Authorities.” (Internal quotation marks omitted.) “The report does not speak to the 

sex of the person reporting the offense, the sex of the person accused of the offense, whether any school disciplinary proceedings 

occurred as a result of the report, or what the result of the school 

disciplinary proceedings was.” Assuming—as we must—that Doe’s 

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21-12592 Opinion of the Court 29

“information and belief” allegation is truthful, nothing in the Clery 

report supports an inference that the university opened a single investigation into one of those reported accusations, much less that 

the university treated a male respondent worse than it treated a 

female respondent or female accuser.

To be clear, our conclusion that Doe has failed to state a 

claim rests on an assessment of the plausibility of sex discrimination, and we “do[] not impose a probability requirement.” See 

Twombly, 550 U.S. at 556. Doe’s assertion of sex discrimination is 

implausible because some allegations “are no more than conclusions, [and] are not entitled to the assumption of truth.” Iqbal, 556 

U.S. at 679. Other allegations “are merely consistent with [the university’s] liability, so they stop[] short of the line between possibility and plausibility of entitlement to relief.” See id. at 678 (internal 

quotation marks omitted). Still other allegations establish “more 

likely explanations” for the university’s conduct, including inexperience, ineptitude, and sex-neutral pro-complainant bias. See id. at 

681. And “[a]s between th[ose] obvious alternative explanation[s]

for the [university’s conduct], and the purposeful, invidious discrimination [Doe] asks us to infer, [sex] discrimination is not a plausible conclusion.” See id. at 682 (citation and internal quotation 

marks omitted).

2. The Title IX Claim Also Fails Under the Yusuf Tests.

Because the two Yusuf tests are no more than fact-specific

applications of the Seventh Circuit test, see Purdue, 928 F.3d at 667,

it follows from Doe’s failure to satisfy the latter that Doe has failed 

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30 Opinion of the Court 21-12592

to satisfy the former as well. Doe has not satisfied the erroneous 

outcome test because he has not “allege[d] particular circumstances suggesting that [sex] bias was a motivating factor behind 

the erroneous finding.” See Yusuf, 35 F.3d at 715. Instead, the 

“complaint itself identifies a number of other, [sex]-neutral factors 

that may have led to the panel’s determination.” See id. at 714.

Nor has Doe satisfied the selective enforcement test. To 

state a claim under that test, 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. See id. at 716. Doe relies on the Clery report for that purpose, 

but that report does not contain sufficient information to identify a 

comparator and determine whether “the severity of the penalty 

and/or the decision to initiate the proceeding was affected by the 

student’s [sex].” See id. at 715. “Without nonconclusory allegations 

that the male students were treated any differently than similarly 

situated female students based on sex, the selective enforcement 

theory fails.” Austin, 925 F.3d at 1138.

B. The Appeal from the Denial of the Motion To Proceed under 

a Pseudonym is Moot.

Our affirmance of the dismissal of the Title IX claim renders

moot the appeal from the denial of the motion to proceed under a 

pseudonym. Because Doe has not argued that the district court 

erred by declining to exercise supplemental jurisdiction after dismissing the Title IX claim, he has forfeited any such argument. See 

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 

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21-12592 Opinion of the Court 31

2014). And with no litigation remaining in the district court, we are

unable to “give [Doe] meaningful relief” with respect to the appeal 

from the denial of the motion to proceed under a pseudonym. See

Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 

1210, 1216 (11th Cir. 2009) (internal quotation marks omitted).

That appeal is moot.

IV. CONCLUSION 

We AFFIRM the judgment in favor of the university. We 

DISMISS AS MOOT the appeal from the denial of the motion to 

proceed under a pseudonym.

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21-12840 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, concurring:

I join Parts I, II, III.B, and IV of the majority opinion. As to 

Part III.A, I concur in the judgment. I agree that Mr. Doe has failed 

to allege facts that would allow a court to plausibly infer that 

Samford University discriminated against him “on the basis of sex” 

in violation of Title IX, 20 U.S.C. § 1681(a). But I have different 

thoughts about how to apply Bell Atlantic Corp. v. Twombly, 550 

U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), in a case 

like this one. 

I 

“To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, ‘to state a claim to relief 

that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 

550 U.S. at 570). As the majority notes, this pleading standard is by 

now a familiar one. Familiarity, however, does not always mean 

clarity. Let me try to explain the issues as I see them, 

acknowledging that I am not the first to flag them. See, e.g., 

McCauley v. City of Chicago, 671 F.3d 611, 620–29 (7th Cir. 2011) 

(Hamilton, J., dissenting in part).

A 

The Supreme Court has told us that plausibility means 

something more than possibility or speculation but something less 

than probability: “The plausibility standard is not akin to a 

‘probability requirement,’ but it asks for more than a sheer 

possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 

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2 JORDAN, J., Concurring 20-10709

678. See also Twombly, 550 U.S. at 556–57. On the surface, this 

seems like an acceptable framing of the pleading standard, but 

there are linguistic problems when one digs a bit deeper. 

First, the word plausible connotes a level of uncertainty—

and even doubt—about the truthfulness of the claim. Second, 

plausible and probable mean essentially the same thing. See, e.g., 

2 BLACK’S LAW DICTIONARY 1392, 1454 (11th ed. 2019) (defining 

plausible as “[c]onceivably true or successful” and “possibly correct 

or even likely[,] reasonable” and probable as “[l]ikely to exist, be 

true or happen”); THE AMERICAN HERITAGE DICTIONARY OF THE 

ENGLISH LANGUAGE 1346, 1397 (4th ed. 2006) (defining plausible as 

“[s]eemingly or apparently valid, likely, or acceptable[,] credible” 

and probable as “[l]ikely to happen or to be true” and “likely but 

uncertain, plausible”) (emphasis added); 2 SHORTER OXFORD 

ENGLISH DICTIONARY 2238, 2352 (5th ed. 2002) (defining plausible 

as “seemingly reasonable or probable (though speculative),” and 

probable as “demonstrable, provable...[a]lso plausible”) (emphases 

added). They are even treated as synonyms of each other. See 

BURTON’S LEGAL THESAURUS 407, 426 (3d ed. 1998) (using 

“probabilis” [a Latin word meaning probable] as a synonym of 

plausible and using “plausible” as a synonym of probable). The 

Supreme Court has, unfortunately, failed to acknowledge that 

there is “an incredibly thin line” between plausible and probable. 

See Matthew Fischer, Ashcroft v. Iqbal: The Supreme Court’s 

Attempt to Clarify Bell Atlantic v. Twombly 18 (No. 2) 

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21-12840 JORDAN, J., Concurring 3

Competition, J. Anti. & Unfair Comp. L. Sec. St. B. Cal. 56, 73 

(2009).

Maybe the Supreme Court thinks that any difficulties in 

figuring out the daylight between plausible and probable can be 

solved by reliance on judicial experience and common sense. See 

Iqbal, 550 U.S. at 679. Yet these traits—which are not objectively 

uniform across the federal judiciary—have their own analytical 

difficulties. See Muransky v. Godiva Chocolatier, Inc., 979 F.3d 

917, 965 n.5 (11th Cir. 2020) (en banc) (Jordan, J., dissenting). 

To make things more complicated, in several cases decided 

after Twombly and/or Iqbal, the Supreme Court has reaffirmed 

that Rule 8 only requires a short and plain statement of the claim. 

See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (explaining that 

Twombly does not constitute a return to the old fact-pleading 

system and that a complaint “need only ‘give the defendant fair 

notice of what the . . . claim is and the grounds upon which it 

rests’”) (quoting Twombly, 550 U.S. at 555); Johnson v. City of 

Shelby, 574 U.S. 10, 12 (2014) (“Petitioners stated simply, concisely, 

and directly events that, they alleged, entitled them to damages 

from the city. Having informed the city of the factual basis for their 

complaint, they were required to do no more to stave off threshold 

dismissal for want of an adequate statement of their claim.”). 

Exactly what these cases mean in the Twombly/Iqbal universe is 

not exactly clear. But I think they at least caution against reading 

the pleading standard as overly demanding. 

 

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4 JORDAN, J., Concurring 20-10709

B 

Then there is the Supreme Court’s statement in Twombly, 

550 U.S. at 557, repeated in Iqbal, 556 U.S. at 678, that “[f]actual 

allegations that are merely consistent with a defendant’s liability 

fall short of being facially plausible.” Chaparro v. Carnival Corp., 

693 F.3d 1333, 1337 (11th Cir. 2012) (internal quotations and 

citations omitted). That concept is sometimes referred to as 

“obvious alternative explanations” for the challenged conduct. See 

Maj. Op. at 23.

In my view, this concept is difficult to justify at the pleading 

stage, where proof of the claim is not required. “[O]ne cannot at 

the same time rationally dispense with a ‘probability requirement’ 

to determine ‘plausibility’ yet conclude that something is not 

‘plausible’ because there are other ‘more likely explanations.’ No 

sense can be given of ‘more likely’ except ‘more probable.’” 

Ronald J. Allen & Alan E. Guy, Conley as a Special Case of 

Twombly and Iqbal: Exploring the Intersection of Evidence and

Procedure and the Nature of Rules, 115 Penn St. L. Rev. 1, 37 

(2010). See also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th 

Cir. 2010) (“[I]t is not necessary to stack up inferences side by side 

and allow the case to go forward only if the plaintiff's inferences 

seem more compelling than the opposing inferences.”). 

As I see it, the problem is particularly acute in a case alleging 

discrimination, where the critical issue is often the defendant’s 

intent and the proof on that issue is often circumstantial. Imagine 

a Title VII case where a plaintiff alleges in his racial discrimination 

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21-12840 JORDAN, J., Concurring 5

complaint (a) that his employer, when terminating him, said that 

the dismissal was due to his poor job performance (his division’s 

financial performance was below expected standards), and (b) that 

this purported reason was pretext for racial discrimination 

(although his division’s performance was below par compared to 

other years, it was the highest (in a down year for the company) 

compared to all other divisions, whose supervisors remained 

employed). In such case, I suggest that it is virtually impossible for 

a court to figure out, at the pleading stage, which factual assertion 

is the more likely (i.e., more plausible) one. On the one hand, the 

plaintiff’s division did perform poorly, as the employer asserted. 

On the other hand, the plaintiff’s division was the best performer 

when compared to all the other divisions, and none of the other 

division supervisors lost their jobs. If a Title VII plaintiff is not 

required to plead a prima facie case of discrimination in his 

complaint to survive a motion to dismiss, see Swierkiewicz v. 

Sorema N.A., 534 U.S. 506, 515 (2002), then how is a court 

supposed to figure out at the pleading stage which explanation is 

the more plausible in this hypothetical? Cf. Doe v. Univ. of 

Denver, 1 F. 4th 822, 830–36 (10th Cir. 2021) (addressing, at 

summary judgment, pretext in a Title IX discrimination case 

brought by a male student charged with sexual misconduct);

Garrett v. Univ. of S. Fla. Bd. of Trs., 824 F. App’x 959, 966–67 (11th 

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6 JORDAN, J., Concurring 20-10709

Cir. 2020) (addressing, at summary judgment, pretext in a Title IX 

retaliation claim brought by a victim of sexual assault).1 

In response to this quandary, one commentator has 

suggested that courts use a “confidence analysis” in cases involving 

circumstantial allegations. See Luke Meier, Probability, 

Confidence, and Twombly’s Plausibility Standard, 68 S.M.U. L. 

Rev. 331, 380–81 (2016). But that metric—though analytically 

interesting—does not provide any practical or helpful guidance to 

courts on the ground. If a court uses the “merely consistent” 

concept, it will in essence be deciding the issue of pretext at the 

motion to dismiss stage, where a complaint must be allowed to 

proceed “even if it strikes a savvy judge that actual proof of [the 

alleged] facts is improbable, and that a recovery is very remote and 

unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks and 

citation omitted).

Given that the Supreme Court has used the “merely 

consistent” concept in a case involving claims of intentional 

discrimination, see Iqbal, 556 U.S. at 678, and that our circuit has 

followed suit in some cases, see, e.g., Am. Dental Ass’n v. Cigna 

Corp., 605 F.3d 1283, 1290 (11th Cir. 2010), I do not fault the 

majority for doing the same here. See Maj. Op. at 23. But that does 

not mean that the “merely consistent” formulation is appropriate 

or workable in a case like this one. For one thing, it conflicts with 

our obligation to draw reasonable inferences in the plaintiff’s favor 

1 More on Swierkiewicz a bit later. 

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21-12840 JORDAN, J., Concurring 7

at the Rule 12(b)(6) stage even when the competing inferences are 

equally plausible. See, e.g., Worthy v. City of Phenix, Ala., 930 F.3d 

1206, 1214 (11th Cir. 2019) (“[A]t [the motion to dismiss] stage, 

when there are two equally plausible ways to read a complaint, we 

should adopt the reading that is most favorable to [the plaintiff].”).

Indeed, several circuits have cautioned against relying on 

the “merely consistent” (i.e., “alternative explanation”) concept in 

Title IX cases. For example, in Doe v. Columbia University, 831 

F.3d 46, 57 (2d Cir. 2016), the Second Circuit rejected the district 

court’s conclusion that any alleged bias in favor of the complainant 

“could equally have been—and more plausibly was—prompted by 

lawful, independent goals, such as a desire. . .to take allegations of 

rape on campus seriously and to treat complainants with a high 

degree of sensitivity.” It emphasized that a court is “obligat[ed] to 

draw reasonable inferences in favor of the sufficiency of the 

complaint,” and explained that “Iqbal does not require that the 

inference of discriminatory intent supported by the pleaded facts 

be the most plausible explanation of the defendant’s conduct. It is 

sufficient if the inference of discriminatory intent is plausible.” Id. 

The Sixth and Ninth Circuits have taken similar approaches. See 

Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018) (“[O]ne plausible 

explanation is that the Board discredited all males, including Doe, 

and credited all females, including Roe, because of gender bias.”); 

Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 948 (9th Cir. 2020) 

(“Sex discrimination need not be the only plausible explanation or 

even the most plausible explanation for a Title IX claim to 

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proceed.”). These cases make sense to me, and I would likewise 

not use the “merely consistent” concept here. 

II 

 I agree with the majority’s articulation of the substantive 

Title IX standard. See Maj. Op. at 16–19. This standard is not 

inconsistent with the recent decision in Bostock v. Clayton Cnty., 

140 S. Ct. 1731, 1739 (2020) (using but-for causation for Title VII), 

as some courts have noted. See Sheppard v. Visitors of Va. St. 

Univ., 993 F.3d 230, 236–37 (4th Cir. 2021). The more difficult 

question is whether Mr. Doe’s complaint alleges a plausible claim 

of sex discrimination under Title IX. 

A 

In Twombly, 550 U.S. at 563, the Supreme Court cited its 

prior decision in Swierkiewicz with approval. Swierkiewicz held 

that a Title VII plaintiff need not allege a prima facie case of 

discrimination to survive a motion to dismiss, and that the 

complaint in that case “easily” stated a claim for relief. See 534 U.S. 

at 514–15. In his complaint, the plaintiff in Swierkiewicz “alleged 

that he had been terminated on account of his national origin in 

violation of Title VII and on account of his age in violation of the

ADEA.” Id. at 514. The complaint “detailed the events leading to 

his termination, provided relevant dates, and included the ages and 

nationalities of at least some of the relevant persons involved with 

his termination. These allegations g[ave] [the defendant] fair notice 

of what [the plaintiff’s] claims [were] and the grounds on which 

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they rest[ed]. In addition, they state[d] claims upon which relief 

could be granted under Title VII and the ADEA.” Id. (citations 

omitted).2

Aside from conclusory claims that his demotion and 

termination had been on account of his national origin and age, the 

plaintiff in Swierkiewicz alleged that he had done his job in a 

“satisfactory and exemplary manner;” that his replacement after 

the demotion was “far less experienced and less qualified;” that his 

supervisor had said he wanted to “energize” the department in 

question; that he had been “isolated” after his demotion; that there 

were several years of “ongoing discrimination on account of his 

national origin and age;” that his grievances were not addressed or 

responded to; that the company had “no valid basis” to fire him; 

and that his national origin and age were “motivating factors” in 

the termination decision. See Complaint at 4–6 ¶¶ 18, 22, 23, 29, 

31, 36, 37, Swierkiewicz v. Sorema, N.A., 86 Fair Empl.Prac.Cas. 

(BNA) 1324 (S.D.N.Y. 2000). Because the complaint in 

Swierkiewicz—which was relatively sparse—was sufficient to state 

plausible discrimination claims under Title VII and the ADEA, 

figuring out the sufficiency of Mr. Doe’s Title IX discrimination 

claim is no easy matter.

2 For ease of reference, a copy of the complaint in Swierkiewicz is attached as 

an appendix. 

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In most cases, procedural irregularities in a university’s 

investigation of a sexual assault claim and an alleged erroneous 

outcome in a subsequent disciplinary proceeding will not, by 

themselves, make out a plausible Title IX claim of sex 

discrimination. See Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 

1994) (“[A]llegations of a procedurally or otherwise flawed 

proceeding that has led to an adverse and erroneous outcome 

combined with a conclusory allegation of gender discrimination is 

not sufficient to survive a motion to dismiss.”). See also Doe v. 

Univ. of Dayton, 766 F. App’x 275, 281–82 (6th Cir. 2019). But as 

the number of irregularities increases, or the irregularities become 

more serious (for example, a failure to interview the accused’s 

witnesses), or the erroneous outcome becomes more glaring, the 

needle starts moving toward plausibility. See Doe v. Oberlin Coll., 

963 F.3d 580, 588 (6th Cir. 2020) (“[W]hen the degree of doubt 

passes from articulable to grave, the merits of the decision itself, as 

a matter of common sense, can support an inference of sex bias.”) 

(internal quotation marks omitted). Accord Menaker v. Hofstra 

Univ., 935 F.3d 20, 35 (2d Cir. 2019) (criticizing the district court for 

not adhering to the Rule 12(b)(6) standard in “minimiz[ing] or 

explain[ing] away...clear procedural irregularities”); Doe v. Miami 

Univ., 882 F.3d 579, 593–94 (6th Cir. 2018) (concluding that the 

plaintiff’s allegation that “every male student accused of sexual 

misconduct...was found responsible for the alleged violation” 

showed a “pattern of gender-based decision-making” in the 

university’s Title IX investigations); Doe v. Purdue Univ., 928 F.3d 

652, 669 (7th Cir. 2019) (ruling that a Title IX investigator’s basis 

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for believing the complainant was “perplexing” given that she 

never spoke with the complainant directly); Doe v. Univ. of Ark.-

Fayetteville, 974 F.3d 858, 864 (8th Cir. 2020) (concluding that the 

hearing panel’s decision to credit the complainant’s claim that she 

was incapacitated and therefore could not consent was “against the 

substantial weight of the evidence”); Schwake, 967 F.3d at 949 

(finding sex discrimination in part due to the university’s “genderbased decision[-]making against male respondents in sexual 

misconduct disciplinary proceedings”). 

Here, it seems to me that Mr. Doe’s collective allegations of 

procedural irregularities fall short of the plausibility mark. See Doe 

v. Princeton Univ., 790 F. App’x 379, 384 (3d Cir. 2019) (plaintiff’s 

grievances about the investigative process were insufficient to 

make out a Title IX discrimination claim because none of the facts 

alleged “indicat[ed] that any of [the] alleged unfavorable treatment 

was due to his sex”). Starting with the purported lack of notice, 

Mr. Doe was told before his first interview that there was an 

allegation that he had raped Ms. Roe. Although Mr. Doe was not 

provided with specifics, he knew what the basic charge was before 

he met with the investigator for his interview. As to the allegedly 

inflammatory statements made by law enforcement (the substance 

of which Mr. Doe did not include in his complaint), I do not view 

their inclusion in the investigative report as an irregularity. Simply 

stated, there is no prohibition in Samford’s Title IX policy against 

the inclusion of hearsay in that type of report. With respect to the 

rejection of the medical evidence by the appeal board, I agree with 

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the majority that Mr. Doe has not alleged (i.e., explained) why that 

evidence was not reasonably available to him before the hearing. 

As a result, there is no reasonable inference that the appeal board

committed an error in refusing to consider the evidence. The 

failure to redact the portions of the investigative report containing 

the statements of witnesses who did not testify at the evidentiary 

hearing is more concerning. But the appeal board attributed that 

irregularity to inexperience and adjustment to the new Title IX 

policy, and Samford’s policy did not permit consideration of those 

statements.3 

Turning to the allegedly erroneous outcome, Samford’s 

decision finding Mr. Doe responsible does not appear—based on 

the allegations in the complaint—to be glaringly wrong. Ms. Roe 

testified at the hearing and explained that her ability to consent to 

intercourse with Mr. Doe was impaired by alcohol consumption. 

Although Ms. Roe had initially claimed that she had been drugged 

by Mr. Doe, the hearing panel knew about the prior inconsistent 

claim and was able to judge the credibility of Ms. Roe (and, for that 

matter, Mr. Doe). Cf. Rossley v. Drake Univ., 979 F.3d 1184, 1193 

(8th Cir. 2020) (“We conclude. . .that whatever the deficiencies in 

3 Mr. Doe does not allege that the hearing panel or the appeal board relied on 

the statements of the witnesses who did not testify, and Samford’s Title IX 

Policy expressly prohibits the panel and the board from relying on those statements. See D.E. 1-1 at 35. Furthermore, the investigative report included not 

only the statements of witnesses who confirmed Ms. Roe’s account of the incident, but also the statements of witnesses who discredited Ms. Roe’s claim 

of incapacitation. See D.E. 1 at 19 ¶141. 

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[the] investigation, they did not result in findings so devoid of 

substantive content as to be unworthy of credence.”).4

Mr. Doe also alleged that there had been seven reported 

rapes on campus, that all of the accused students in those cases 

were male, and that they were treated differently than a female 

would have had she been charged with a similar offense. The 

majority says that alleged pro-complainant bias does not lead to an 

inference of discrimination on the basis of sex because both men 

and women can be accused of assault. See Maj. Op. at 25. I’m not 

sure that this is necessarily correct at the pleading stage if all of the 

accused students at Samford have so far been male. Nevertheless, 

I concur with the majority’s ultimate assessment of these 

allegations for the simple reason that Samford does not decide who 

is going to make a sexual assault complaint. In other words, the 

sex of those who file such complaints is out of Samford’s hands. 

And that makes it very hard to figure out how similarly situated 

females would be treated if they were accused of sexual assault. See 

Doe v. Trs. of Boston Coll., 892 F.3d 67, 91–92 (1st Cir. 2018) (“The 

4 Mr. Doe claims that the investigator’s statement to Ms. Roe during her initial 

interview—“I still think, regardless, you couldn’t give consent”—is evidence 

of gender bias against him. See D.E. 1 at 18 ¶ 131. But the investigator explicitly found Ms. Roe more credible than Mr. Doe because she had “several witnesses who attested to her incapacitation.” See D.E. 1 at 19 ¶143. The hearing 

panel’s agreement and the appeal board’s affirmance of the investigator’s credibility determination is not against the substantial weight of the evidence given 

the allegations in the complaint. 

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gender of the students accused of sexual assault is the result of what 

is reported to the [u]niversity, and not the other way around.”). 

Finally, Mr. Doe cites to other evidence to provide 

background for his claim of discrimination under Title IX. Many 

of our sister circuits have concluded that evidence not specifically 

pertaining to the plaintiff’s own Title IX investigation and hearing 

may be relevant in assessing the sufficiency of a complaint. This 

evidence can include financial pressure from the government or 

from interest groups, scrutiny from the media, and statements or 

actions taken by the university, its employees, or fellow students 

indicating a potential gender bias against students accused of sexual 

misconduct. Title IX plaintiffs typically present this type of 

evidence to contextualize the actions taken by school officials 

during the investigation and/or hearing. A review of Title IX cases, 

however, leads me to conclude that the background evidence cited 

in Mr. Doe’s complaint—the university magazine article, the 

documentary, the “It’s on Us” campaign, and the Clay statistics—

does not make Mr. Doe’s claim of discrimination plausible. See 

e.g., Purdue Univ., 928 F.3d at 668–670 (concluding that 

government financial pressure and a post with a link to an article 

blaming men for the problem of sexual assault gave the plaintiff “a 

story about why [the university] might have been motivated to 

discriminate against males accused of sexual assault,” but could not 

“standing alone” get him “over the plausibility line”); Baum, 903 

F.3d at 586 (reasoning that the Department of Education’s ongoing 

investigation into the university “provide[d] a backdrop that, when 

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combined with other circumstantial evidence of bias. . .gives rise 

to a plausible claim”); Columbia Univ., 831 F.3d at 56–59 

(concluding that intense public scrutiny and media attention of the 

university’s handling of sexual assault complaints could lead to profemale complainant bias).

B 

So what is necessary to allege a plausible claim of sex 

discrimination in violation of Title IX? I agree with the majority 

that the text of Title IX requires allegations that would allow a 

court to reasonably infer that Samford made its decision “on the 

basis of sex.” I also agree that based on Mr. Doe’s complaint we 

cannot plausibly infer sex discrimination by Samford in this case. 

My discussion below discusses why our sister circuits in Purdue 

University, Baum, and Columbia University ruled that the plaintiffs 

in those cases did cross the plausibility threshold. My hope is that 

the contrast will shed some light on the amorphous plausibility 

standard in the Title IX setting. 

In Purdue University, the Seventh Circuit was persuaded by 

the plaintiff’s allegation that the Title IX investigator chose to credit 

the complainant’s account of the incident without talking to her 

directly. See 928 F.3d at 669. An investigator can of course make 

credibility determinations, but the Seventh Circuit found the 

investigator’s “basis for believing [the complainant]... perplexing, 

given that [the investigator] never talked to [the complainant]” and 

instead relied on a letter relaying the complainant’s account 

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prepared by the director of the university’s center for victims of 

sexual violence. Id. 

The allegations about the hearing also suggested that the 

panel was biased against the plaintiff, who was male. Crediting the 

plaintiff’s allegations as true, the Seventh Circuit noted that “the 

majority of the panel members appeared to credit [the 

complainant] based on her accusation alone, given that they took 

no other evidence into account.” See id. The plaintiff was also 

denied the opportunity to present any witnesses in his favor, 

including an alibi witness, and he was unable to present evidence 

of a potential source of the complainant’s anger toward him: his 

reporting of her suicide attempt while they were dating. See id. 

These allegations, viewed within the context of financial pressure 

from the government and a post by a university organization 

seemingly blaming men as a class for the problem of sexual assault, 

led the Seventh Circuit to conclude that the plaintiff had pled a 

plausible claim of discrimination on the basis of sex. See id at 667–

670. 

The Sixth Circuit in Baum was concerned, based on the 

allegations, that the hearing panel found the plaintiff culpable of 

violating the university’s policy even though the Title IX 

investigator had initially found in his favor. See 903 F.3d at 586. A 

difference in credibility determinations from the investigator and 

panel was not ipso facto evidence of sex discrimination, but the fact 

that the investigator did her work over three months, “during 

which she personally interviewed 23 witnesses and reviewed 

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evidence such as medical records, text messages, and video 

recordings,” and that the subsequent university disciplinary panel 

disregarded or placed little value on the findings of the report, gave 

the Sixth Circuit pause. See Complaint at 7 ¶ 30, Doe v. Baum, 227 

F. Supp. 3d 784 (E.D. Mich. 2017). The Sixth Circuit noted that the 

hearing panel “credited exclusively female testimony...and 

rejected all of the male testimony” and explained its decision by 

saying that the accused’s witnesses (who were all male) “lacked 

credibility because many of them were fraternity brothers.” Baum, 

903 F.3d at 586. Given that the Sixth Circuit was required to 

“view[ ] this evidence in the light most favorable to [the plaintiff],” 

gender bias was certainly one plausible explanation. Id.

In Columbia University the Second Circuit spent 

considerable time detailing the mounting pressure the university

was experiencing when it made its determination against the 

plaintiff. In describing the university’s alleged “pro-female, antimale bias,” the Second Circuit concluded that the “biased attitudes 

were, at least in part, adopted to refute criticisms circulating in the 

student body and in the public press that [the university] was 

turning a blind eye to female students’ charges of sexual assaults by 

male students.” Columbia Univ., 831 F.3d at 56. It therefore 

concluded that the failure of the investigator and hearing panel to 

seek out the plaintiff’s corroborating witnesses, and act in 

accordance with the procedural policies of Title IX disciplinary 

proceedings, could be the result of bias and made the 

discrimination claim plausible. See id. at 56–57. 

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The allegations in these three cases do not set a floor for 

plausibility in the Title IX context. But the cases taken collectively,

begin to piece together the sort of mosaic that will suffice. See also 

Univ. of Ark.-Fayetteville, 974 F.3d at 864–66 (Title IX plaintiff 

sufficiently made out a claim of sex discrimination by alleging that 

the hearing panel’s decision was against the weight of the 

substantial evidence, that lesser sanctions were imposed in order to 

avoid negative media attention and to portray a stricter approach 

to sexual assault, and that university was under pressure on 

multiple fronts to find males responsible for sexual assaults).5

III 

I agree with the majority that Mr. Doe has not alleged 

sufficient facts to meet the plausibility standard. I do not, however, 

believe that Twombly and Iqbal require plaintiffs to rule out in 

their complaints plausible alternative reasons for the misconduct 

they challenge. Title IX plaintiffs need only allege facts that would 

allow us to infer a plausible claim of sex discrimination.

5 With respect to Mr. Doe’s claim of selective enforcement, it too fails to cross 

the plausibility threshold. There is no allegation that Samford, in addition to 

yielding to external pressures, failed to investigate female students accused of 

the same misconduct, as in Doe v. University of Sciences, 961 F.3d 203, 210 

(3d Cir. 2020). 

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