NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 18-1477 ______________
JOHN DOE, Appellant
v.
PRINCETON UNIVERSITY ______________
Appeal from the United States District Court for the District of New Jersey (D.C. No. 3:17-cv-01614) District Judge: Hon. Peter G. Sheridan ______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 3, 2019 ______________
Before: SHWARTZ, SCIRICA, and FUENTES, Circuit Judges.
(Filed: October 25, 2019)
______________
OPINION* ______________
SHWARTZ, Circuit Judge.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Plaintiff John Doe appeals the District Court’s order dismissing claims against
Defendant Princeton University arising from a sexual misconduct investigation and Doe’s
dismissal from the University. Because Doe has not alleged sufficient facts to support his
claims, we will affirm.
I1
Doe was a male graduate student at Princeton. Doe describes himself as
homosexual, but, while at Princeton, his sexual orientation was not public. One spring
semester, Doe met a male undergraduate student (“Student X”). Doe alleges that Student
X sexually assaulted him during the following summer and when they returned to
Princeton in the fall. After the second assault, “Student X’s friends created a hostile
environment for John Doe,” “by yelling out a gay slur to him and calling him a liar.”
Compl. ¶ 84, ECF No. 54-1. Doe alleged that he “no longer felt welcome at” the
religious community center both he and Student X frequented. Compl. ¶ 84.
Doe notified Princeton that he was twice sexually assaulted by Student X and that
Student X’s friends were harassing him. Student X filed a cross-complaint.
Princeton’s Rights, Rules, Responsibilities guide (“RRR”) proscribes sexual
misconduct and sex discrimination, and outlines the procedures for the investigation and
discipline for violations. Pursuant to the RRR, Princeton assembled a panel of
administrators to investigate Doe’s and Student X’s complaints. The panel issued a set of
1 Because Doe appeals an order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we accept the well-pleaded facts alleged in his complaint as true and recount them here. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
2 charges against each student. Student X was charged with, among other things, non-
consensual sexual penetration and sexual contact, sexual harassment, and stalking. Doe
was charged with sexual harassment, stalking, and retaliation. Doe claims there was “no
basis” for the charges against him. Compl. ¶ 105. Ultimately, the panel found both
students “not responsible” for any charges. Compl. ¶ 122. Doe’s appeal to a new panel
was denied.
Doe alleges that the panel acted improperly by, among other things, meeting with
Student X twice before meeting with Doe, not interviewing all of Doe’s witnesses,
obtaining information about Doe’s previous sexual history, and giving Student X the
opportunity to “submit new evidence” during the panel’s deliberation phase. Compl.
¶ 118.
During the panel’s investigation and deliberation, Princeton “banned” Doe “from
attending” the religious community center, Compl. ¶ 110, but declined to provide Doe
with a no-contact order against Student X’s friends. Doe asserts that he felt isolated,
depressed, and attempted suicide. Doe contacted clergy and student services
administrators (including panel members) regarding his suicidal behavior. None of these
individuals took any action.
Doe alleges that the “significant stress and emotional upheaval” from the sexual
assault “had a negative impact on [his] grades and academic standing.” Compl. ¶ 144.
At one point, Doe asked the Graduate School for an extension to take a midterm exam so
he had time to submit evidence to the panel before it closed its investigation. The
3 Graduate School did not grant the extension request, and his academic advisor provided
no help. Princeton, however, offered him a leave of absence.
In the final semester of his program, Doe concluded that he would be unable to
meet his degree requirements and requested reenrollment for the following semester.
Princeton notified Doe that he must maintain a B average in his courses for the spring
semester to be eligible to enroll for the fall semester. Doe was unable to maintain a B
average, and Princeton terminated his enrollment. Doe alleges that another male student
in his program received his degree without completing his final semester.
Doe sued Princeton for (1) violations of Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681, (2) breach of contract, (3) estoppel and reliance, and (4)
negligence. The District Court dismissed Doe’s complaint without prejudice under
Federal Rule of Civil Procedure 12(b)(6), concluding that Doe had failed to allege
sufficient facts to support his claims. Doe v. Princeton Univ., No. 17-cv-1614, 2018 WL
2396685 (D.N.J. Feb. 6, 2018). Doe did not amend his complaint and instead appeals.
II2
A
2 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of a district court’s order granting a motion to dismiss. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011). We must determine whether the complaint, construed “in the light most favorable to the plaintiff,” Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014) (citation omitted), “contain[s] 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), “but we disregard rote recitals of the elements of a cause of action, legal conclusions, and
4 We first address Doe’s claim that Princeton violated Title IX. Title IX provides in
relevant part: “No person in the United States shall, on the basis of sex, . . . 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). Doe offers three
theories of liability under Title IX. Each require him to allege that he faced disparate
treatment “on the basis of sex.” Id.; Doe v. Boyertown Area Sch. Dist., 897 F.3d 518,
534-35 (3d Cir. 2018). To show disparate treatment on the basis of sex, a plaintiff may
show that similarly situated individuals of the other sex experienced different treatment.
See Boyertown, 897 F.3d at n.110. Doe asserts that Princeton is biased against male
sexual assault complainants and that, had he been a “female victim of sexual assault by a
male assailant,” the proceedings would have been different. Compl. ¶ 174.
Doe has not pleaded facts showing Princeton treated him differently because of his
sex. His allegations that he “would not have been subject to Princeton’s discriminatory
acts if he were a female victim,” Compl. ¶ 174, and that “Princeton also does not believe
male students can be victims,” Compl. ¶ 127, are too “generalized” and “conclusory” to
raise an inference of disparate treatment, Doe v. Columbia Coll. Chi., 933 F.3d 849, 855
(7th Cir. 2019); Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). Moreover, Doe
mere conclusory statements,” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). A claim “has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (internal quotation mark omitted). “[W]e may consider documents ‘integral to or explicitly referred to in the complaint’ . . . .” In re Lipitor Antitrust Litig., 868 F.3d 231, 249 (3d Cir. 2017).
5 alleged no facts reflecting that the disciplinary process and results for female victims are
different from men. See Columbia Coll. Chi., 933 F.3d at 856 (holding that plaintiff’s
allegations regarding procedural improprieties were insufficient when he never alleged
that female students did not face those improprieties).3
Doe also alleges that Princeton has a “history of complaints regarding its
mishandling of reports of sexual assault” and notes one complaint and four
investigations. He does not allege, however, that this “mishandling” involved anti-male
bias nor did he present factual allegations from which to infer “a pattern of gender-based
decision-making.” Doe v. Miami Univ., 882 F.3d 579, 593 (6th Cir. 2018); see also Doe
v. Columbia Univ., 831 F.3d 46, 50-52 (2d Cir. 2016). Moreover, while Doe lists many
grievances about how the process was conducted and how he was treated, he does not
plead facts indicating that any of this alleged unfavorable treatment was due to his sex.
Doe’s Title IX claim separately fails because he has not alleged facts showing
Princeton was deliberately indifferent to the alleged sexual harassment. A Title IX
deliberate indifference claim requires a plaintiff to show, among other things, (1) sexual
3 Doe contends that his allegations should suffice at the pleading stage and requiring him to produce evidence of a comparator is too difficult without discovery. He suggests that McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which describes the burden-shifting framework for discrimination claims, “provides ‘a temporary presumption in plaintiff’s favor reduc[ing] the plaintiff’s pleading burden, so that the alleged facts need support only a minimal inference of bias.’” Appellant’s Br. at 36-37 (quoting Doe v. Columbia Univ., 831 F.3d 46, 56 (2d Cir. 2016)). That is an incorrect articulation of our pleading standard for discrimination claims. Rather, the pleading must set forth some facts—beyond conclusions—that raise an inference of disparate treatment. See, e.g., Connelly v. Lane Constr. Corp., 809 F.3d 780, 791 (3d Cir. 2016) (pleading’s factual allegations sufficient when plaintiff alleged her employer failed to rehire her despite rehiring six other male employees, two with less seniority).
6 harassment that is “so severe, pervasive, and objectively offensive that it can be said to
deprive the victims of access to the educational opportunities or benefits provided by the
school,” Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999); and (2) that the
defendant’s “response to the harassment . . . is clearly unreasonable in light of the known
circumstances,” id. at 649.
Doe’s claim that “Princeton was deliberately indifferent to [Doe’s] complaints of
sexual assault against Student X,” Compl. ¶ 150, is predicated on his view that there were
procedural flaws in the investigative process. The complaint and documents integral to it
shows that Princeton investigated and adjudicated his claims. We cannot say that any of
the alleged flaws rendered Princeton’s response “clearly unreasonable.” Davis, 526 U.S.
at 649.
Doe’s claim that Princeton was deliberately indifferent to the allegedly hostile
environment “created” by Student X’s friends also fails. Compl. ¶¶ 84, 150. Doe alleges
that Princeton ignored his request for a no-contact order with Student X’s friends who
had “harassed [him] on campus by yelling out a gay slur to him and calling him a liar.”
Compl. ¶ 84. The students’ alleged “harassment,” however, was not “so severe,
pervasive, and objectively offensive” to constitute sexual harassment under Title IX.
Doe’s allegation that Student X’s friends created a “hostile environment,” Compl. ¶ 84, is
conclusory, and one instance of being called a slur, while offensive, is neither severe nor
pervasive. Davis, 526 U.S. at 653-54 (concluding that multiple months of “repeated acts
of sexual harassment,” which “included numerous acts of objectively offensive touching”
and “multiple” victims, constituted “severe, pervasive, and objectively offensive”
7 conduct). Thus, Doe has not alleged a deliberate indifference claim based on a hostile
environment.4
Doe also alleges that Princeton retaliated against him for filing his complaint
against Student X by (1) “facilitating Student X’s cross-complaint and/or initiating its
own charges against [Doe],” Compl. ¶ 107, and (2) failing to provide academic
accommodations or respond to his psychiatric problems. A Title IX retaliation claim
requires a plaintiff to allege that (1) he “engaged in activity protected by Title IX,” (2) he
“suffered an adverse action,” and (3) “there was a causal connection between the two.”
Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 564 (3d Cir. 2017). Doe’s report of
sexual harassment is protected activity, Connelly, 809 F.3d at 792, but his retaliation
claim fails on the other elements. On his first retaliation theory, he has failed to allege
that he suffered adverse action because of protected activity. Princeton did not sua
sponte initiate charges against Doe; rather, Student X filed a cross-complaint.
Investigating and adjudicating a student’s cross-complaint is not an adverse action. On
his second retaliation theory, he has not alleged any “causal connection between” his
filing of a sexual assault complaint and the alleged failure to provide academic assistance.
Mercy Catholic, 850 F.3d at 564. The fact that he had a sexual assault complaint pending
at the time he requested academic accommodations to prepare evidence for the
4 To the extent the complaint can be read to also allege that Princeton was “deliberately indifferent” to Doe’s academic or psychiatric troubles, that allegation cannot support a Title IX deliberate indifference claim because a defendant only can be liable under Title IX when the institution is deliberately indifferent to sexual harassment, Davis, 526 U.S. at 649, and not based on indifference to academic or psychiatric problems (unless the problems were ignored because of the student’s sex).
8 proceeding does not lead to an inference that the denial of his accommodation request
was in retaliation for invoking Title IX’s protections.5 Accordingly, the District Court
correctly dismissed Doe’s Title IX claims.
B
Doe’s breach of contract claim is also without merit. Doe alleges that Princeton
breached certain provisions of the RRR. Under the governing New Jersey law, “the
relationship between a private university and its students can not be described either in
pure contract or associational terms,” and the role of the court in reviewing such contract
claims is limited. Mittra v. Univ. of Med. & Dentistry of N.J., 719 A.2d 693, 696-97
(N.J. Super. Ct. App. Div. 1998); see also Napolitano v. Trs. of Princeton Univ., 453
A.2d 263, 272 (N.J. Super. Ct. App. Div. 1982). For example, “the role of the courts in
resolving disputes involving the dismissal of a student for academic reasons [is] limited
to a determination whether the university complied with its own regulations and whether
the institution’s decision was supported by the evidence.” Mittra, 719 A.2d at 697.
Similarly, for contract claims relating to discipline for misconduct, courts will examine
whether “the institution violate[d] in some substantial way its rules and regulations.” Id.
at 698; see also Doe v. Rider Univ., 3:16-cv-4882, 2018 WL 466225, at *13 (D.N.J. Jan.
17, 2018).
5 His complaint also fails to state a plausible retaliation theory because Princeton offered him an accommodation: a leave of absence. Given that Princeton tried to accommodate him, we cannot infer from the complaint that Princeton’s failure to reschedule his midterm was a retaliatory action.
9 The complaint does not allege any “substantial” violation of the RRR. Mittra, 719
A.2d at 698. First, the complaint is devoid of any allegations of misrepresentation, lack
of candor, or a lack of transparency and thus does not allege Princeton substantially
violated any promise to “be honest and straightforward in [members’] official dealings
with University processes, activities, and personnel.” Compl. ¶ 180. Second, the
complaint does not reveal Princeton substantially violated any promise to “protect the
well-being of the Princeton community,” Compl. ¶ 181, and “allow its community
members to live in a discrimination- and harassment-free environment,” Compl. ¶ 182,
because, even if there were procedural flaws in the investigation, Princeton gathered
evidence about the charges of sexual harassment and provided reasons for its conclusion
that neither student was responsible for violating the RRR. Third, the pleading also fails
to allege Princeton substantially violated any promise to provide “appropriate interim
measures” during the investigation. Compl. ¶ 26. University officials have significant
discretion when to impose interim measures, and the interim measure Doe requested, a
no-contact order, was something Princeton does not issue to students. Finally, as to
Doe’s claim that Princeton “arbitrarily” required that he maintain a B average,
universities have significant independence “in dealing with the academic failures,
transgressions or problems of a student.” Napolitano, 453 A.2d at 567; see also Mittra,
719 A.2d at 697-98. Moreover, Doe has identified no policy preventing Princeton from
imposing academic requirements for continued enrollment. See Mittra, 719 A.2d at 698
10 (rejecting claim arising from an academic dismissal when there was no indication that the
school “deviated in some significant way from its published rules”).6
For these reasons, the District Court correctly dismissed Doe’s breach of contract
claim.
C
Doe’s promissory estoppel claim also is without merit. Doe alleges that Princeton
promised, in return for Doe’s acceptance of admission and tuition, that “Princeton would
not tolerate and, [Doe] would not suffer” sexual assault by another student, unfair
procedures, or an “arbitrary termination of his enrollment.” Compl. ¶¶ 196-97. To state
a claim for promissory estoppel, a plaintiff must allege, among other things, “a clear and
definite promise.” Toll Bros., Inc. v. Bd. of Chosen Freeholders, 944 A.2d 1, 19 (N.J.
2008). Doe has not alleged a “clear and definite promise” because the promises he
identified represent the “general expectation[s]” a student has when attending a
university. See E. Orange Bd. of Educ. v. N.J. Sch. Constr. Corp., 963 A.2d 865, 874-75
(N.J. Super. Ct. App. Div. 2009) (holding that a “general expectation” of benefit is
insufficient to support a promissory estoppel claim). Given the aspirational nature of
each alleged representation, none constitute an enforceable promise that can support a
promissory estoppel claim.
D
6 In his brief, Doe argues that Princeton also breached the RRR by failing to take prompt action when investigating his complaint and retaliating against him, but he never alleged those violations in his complaint and so we do not consider them.
11 The District Court also properly dismissed Doe’s negligence claim because
Princeton is entitled to charitable immunity. The New Jersey Charitable Immunity Act
provides:
No nonprofit corporation . . . organized exclusively for . . . educational purposes . . . shall . . . be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation . . . where such person is a beneficiary . . . of the works of such nonprofit corporation . . . .
N.J. Stat. Ann. § 2A:53A-7(a). “[A]n entity qualifies for charitable immunity when
it . . . was promoting [religious, charitable, or educational] objectives and [for non-profit]
purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable
works.” O’Connell v. State, 795 A.2d 857, 860 (N.J. 2002) (internal quotation marks and
citation omitted). This “involves two inquiries”: (1) “whether the organization pleading
the immunity, at the time in question, was engaged in the performance of the objectives it
was organized to advance,” and (2) “whether the injured party was a direct recipient of
those good works.” Green v. Monmouth Univ., 206 A.3d 394, 403 (N.J. 2019) (internal
quotation marks and alterations omitted). Under the first inquiry, New Jersey courts
“have found a broad variety of activities offered by educational institutions to advance
their educational objectives.” Id. at 406. Under the second inquiry, a student “engaging
in educational pursuits” is “per se a beneficiary” of a university.7 O’Connell, 795 A.2d at
7 A student is a beneficiary even when he or she is not engaging in an activity “closely tied to the traditional educational purposes of an institution of learning.” Orzech v. Fairleigh Dickinson Univ., 985 A.2d 189, 196 (N.J. Super. Ct. App. Div. 2009) (student died following alcohol-related accident in a dormitory); Bloom v. Seton Hall Univ., 704 A.2d 1334, 1336 (N.J. Super. Ct. App. Div. 1998) (student fell in an on- campus pub).
12 861 (quoting Graber v. Richard Stockton Coll. of N.J., 713 A.2d 503, 507 (N.J. Super. Ct.
App. Div. 1998)).
Doe claims that Princeton was negligent in (1) investigating and adjudicating his
sexual assault allegations against Student X, and (2) not “provid[ing] resources, guidance
and intervention regarding [his] suicide attempts.” Compl. ¶ 204. On Doe’s first
negligence theory, Princeton was “engaged in the performance of” its educational
objectives, Green, 206 A.3d at 403, when it investigated allegations of sexual
misconduct. Princeton recognizes the harm of sexual misconduct, and, to further its
educational mission, Princeton prohibits sexual misconduct within its community,
investigates the claims, and disciplines violators. As a student, Doe is a beneficiary of
these protections and procedures. Princeton thus is immune from a negligence claim
arising from its investigation and adjudication of Doe’s sexual assault complaint.
Doe’s second negligence theory alleges that Princeton was negligent when
providing student services. Doe sought out student services from several Princeton
officials. The student services he sought are “activities offered by educational
institutions to advance their educational objectives,” and students are beneficiaries of
these services. Green, 206 A.3d at 406. Princeton is thus immune from negligence
claims based on the responses to Doe’s requests for such services.
Accordingly, Princeton is entitled to charitable immunity and so his negligence
claim was properly dismissed.
III
For the foregoing reasons, we will affirm.